Parental Leave Schemes in the public sector on 2GB

Thursday, 29 August 2013

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CS       Well our Legal Matters segment this week converges into a few topics that have come up during this election campaign and we’ll get to those in just a second. But if you’ve got employment-related questions to ask of David Taylor, one of our regulars from Turner Freeman, go for your life.  131873 is the telephone number. Free advice. Not often you get anything free from a lawyer but you certainly get some expert advice from David Taylor. David, good afternoon to you.

DT       Good afternoon Chris. I’m not insulted.

CS       Where’s the loud tie? You’ve got a lawyer’s tie on now.

DT       I thought it was…you know.

CS       You reckon it’s a bit trendy?

DT       I reckon it’s not bad.

CS       What do you think Gav?

DT       What about the shirt? I’ve got the shirt that matches.

CS       Very good, yes. It looks great for radio. Ok, for Turner Freeman Lawyers, our sponsors on the programme 131873 is the telephone number.  If you’ve got a question, I suggest you get in early. Now, a lot has been mentioned and debated. A lot of controversy about Tony Abbott’s paid Parental Leave Scheme. But there are paid Parental Leave Schemes throughout the community already. Now, in particular, for public servants. Give us an example of a paid Parental Leave Scheme that employers, whether it be the Government or a private enterprise, have to follow in this society now.

DT       Well, there are two distinct types of paid Parental Leave Schemes currently in existence. There’s the current Government’s Parental Leave System, which is not really a leave scheme in a traditional sense in that leave is when you’re paid at your normal hourly rate, your normal wage.

CS       And you go on leave?

DT       And you go on leave. The current Government’s parental leave isn’t paid by reference to how much you normally earn, it’s paid by reference to the minimum. So, it’s paid by reference to a national minimum wage. Large employers, so banks, mining companies and the Commonwealth and many States also have genuine paid Parental Leave Schemes which are similar to what the coalition’s proposing.

CS       So, it’s more than what you would normally earn?

DT       No, not more than what you would normally earn but more than the national minimum.

CS       More than the minimum, right ok.

DT       Yeah, so the coalition proposal is 26 weeks at your normal wage up to a normal wage of $150,000.

CS       So, just explain it to our listeners as well. The reason that it is the minimum wage is because it is over a longer period of time. Is that the reason?

DT       For the ALP? No, it’s just a less generous benefit. So, the ALP benefit is 18 weeks, the coalition is 26 weeks, the ALP is at the minimum wage which is about $660 a week. The coalition’s will be at whatever you earn up to almost $3,000 a week.

CS       If I’m on a Federal Award for, say, I don’t know, the education department in Canberra, what would I get?

DT       Ok, then you have employers like the Commonwealth, Universities, banks, things like that who often have, by policy or by enterprise agreement, Parental Leave Schemes. The standard Commonwealth payment is 14 weeks at your normal wage without a cap. So, you would get the first 14 weeks of your parental leave paid at your normal wage and you would also then get the Government benefit at minimum wage on top of that.

CS       Right, so what Tony Abbott is offering is far more generous than we have experienced in this country before in any shape or form?

DT       Yeah, I think you’d find some specific employers where, for whatever reason, they have very generous schemes but they would be very small in number. I’m not aware of any significant employer that has…

CS       Maybe to retain their executives who are on the million dollars or the half a mill?

DT       Yeah. I would imagine you would find people…high level executives and the like who are very valued to organisations who’ve negotiated parental leave in excess of what the coalition is promising but, in terms of collective agreements’ policies, I’m not aware of any that are at that level.

CS       That is really interesting. The other point I want to ask about that converges into election policy is the sacking of public service jobs, 12,000, if Tony Abbott is re-elected. I’ll get to that in just a second. Let’s talk about leave loading and related subjects. Callers have questions for David Taylor from Turner Freeman. Gordon, David’s listening, go ahead.

C1       Hi, I’ve been employed by the same company for seven years and I’ve never received leave loading on my holiday. I’m a driver’s doorman…wages nothing special. Is that legal?

DT       I’m not sure, it would depend on the award that covers you and if there was an enterprise agreement that covers you. Some awards and some enterprise agreements still have leave loading which is that extra payment you get when you take a period of leave. A lot have negotiated that out and it’s been incorporated into the weekly wage. So you’d have to have a look at the specific instruments that applied to you to work out.

CS       This was something that changed dramatically for the workplace in the 80s right?

DT       Yeah, it was. Well, over the 80s and 90s, there’s been a negotiation away from leave loading. It’s a slightly odd concept that you get paid more when you go on leave.

CS       Yeah, you get paid more because you don’t work.

DT       Yeah, well it would be good if it happened all the time. So, it’s generally 17.5% extra on your wage for the four weeks that you take leave.

CS       Yeah, so Gordon…what are you suggesting to Gordon? He should go to maybe a union official?

DT       If he’s got a Union or a Union delegate, speak to them. Otherwise, the Fair Work Ombudsman might be able to help.

CS       Ok, Fair Work Ombudsman Gordon, how does that sound?

C1       Terrific mate, thank you.

CS       Alright, thank you for your call. Mike, go ahead.

C2       Oh, hi. I work for a rather large corporation. We signed on the Friday, did a hand-shake deal on the Monday that I was leaving on that Friday. On the Tuesday, they enforced a three week garden leave upon me.

CS       What, garden leave?

C2       …to move to my next company and they’ve got all legal about it. What can I do?

DT       You have to have a look at the nature of the agreement that you had. So garden leave is, in this context, where you’ve got a period of notice and your employer says, well we don’t want you to work for us anymore because you’ve gone, you’ve resigned your job so you’ve got to give four weeks notice. And they say, well over the next four weeks, because we’re going to continue to pay you, we don’t want you to come in but we want you to sit at home and not do work for anybody else and for a competitor.

CS       Aha, right, garden leave. Ok.

C2       Exactly right, and my contract was written that way, but on the Monday, we shook hands and said we’d finish on the Friday. On the Tuesday, then they changed their mind. Now, in between that period, I put plans in place to start the following Monday with my new employer. Is it just he said/she said?

DT       Yeah, it pretty much is, and it wouldn’t be easy to work out the best way to go forward. I guess you’d need to work out the risk to your current employer, taking action and destroying your relationship with your new employer if they sort of got involved and started writing to your new employer, this person shouldn’t be working for you, it’s causing us damage and that may damage that new relationship. Alternatively, you may conclude that nothing will happen, that there’s a binding agreement and that you’re going to go on that binding agreement. It’s really how much risk you want to take on asserting that your handshake deal was a finalised agreement versus something that was just tentative and it was open to them to rely on the normal terms of the contract.

C2       Yeah, they were nice about it. They withheld six weeks pay, reduced pay.

DT       Well, they certainly can’t do that. There’s certainly an action against them for that.

CS       So, he could go to Fair Work Australia and try and get them to start negotiating on his behalf couldn’t he?

DT       No, it’s a straight contract claim. It’s all about his contract of employment and the reality is, by the time you get anyone to do anything, the four weeks is going to be over and it’s not going to matter. So it’s really going to be…well, you could possible get, at some expense, injunctions or urgent orders.

CS       At the Supreme Court or something like that.

DT       Yeah, at the Federal Court. But, unless there’s a real need for you to get to the new employer in a hurry, it’s unlikely that it’s going to be worth it.

C2       Oh well, lesson learnt. Thank you gentlemen.

CS       Lesson learnt, yes, just put it down to experience Mike. 131873 the telephone number. David Taylor from Turner Freeman Lawyers, our sponsors on the Legal Matters segment. You know, compensation can’t change the past but it will make a difference to your future. So, if you’re suffering because of someone else’s negligence, turn to Turner Freeman Lawyers. Turner Freeman Lawyers are heavy hitters, the type of law firm you need on your side to win. And they’ve been winning claims for a long time. When a Turner Freeman lawyer acts for you, they draw on over 500 years combined experience, the financial and legal resources of a national firm, and a reputation as tough, uncompromising litigators who won’t rest until you get the compensation you deserve. Call 1800 800 088 or visit turnerfreeman.com.au. Turner Freeman Lawyers, when you need to win your case.

This is Legal Matters with our good sponsors, Turner Freeman. David Taylor just about to take more of your calls. I want to talk about getting rid of 12,000 public service jobs. How simple is that to do?

DT       Well not simple at all. There’s a couple of bits to it. One is, you’ve got to come up with…you’ve got to work out which jobs you don’t want.  You’ve got to make a determination whether it would be done by voluntary redundancy or forced redundancy. Voluntary redundancy obviously has the benefit of getting rid of the people that don’t really want to be there. Forced redundancy, you can target who goes more. So, the counter argument to voluntary redundancy is the people who aren’t going to be able to get a job somewhere else are never the ones who put their hands up for voluntary redundancy.

CS       And you’re left with the goats.

DT       Yeah, so you know there’s pros and cons both ways there but more public sector redundancy programmes have generally been based on voluntary redundancies.

CS       It’ll cost the Government a significant amount, right?

DT       And there’s the cost and cost is…enterprise agreements often have redundancy formulas. The Fair Work Act has a redundancy formula which provides up to 16 weeks pay on top of the notice period for retrenchment but you’d often find enterprise agreements would have significantly more than that. I know up to 1 and 2 years pay depending on how long you’ve been there for.

CS       Because I love how politicians and, in this case, it’s Tony Abbott throwing around…we’ll get rid of 12,000 public servants, let’s just do that quick calculation, that’ll give us this. We’ve just saved $1.4 billion or whatever it is but the process of making it happen could take quite a while.

DT       There’s the process of doing it, there’s then making sure you get rid of the right people and you’ve got to train new people up and there’s always those classic stories of…I got made redundant and then next week the boss rang me up and everybody employed me as a contractor doing exactly what I was doing.

CS       On a little bit more money now that I’m a contract, yeah.

DT       Yeah.

CS       John, go right ahead, David is listening.

C3       Yeah David.

DT       Hi John, how are you?

C3       Good thanks. David, I’m reading an article in the Manly Daily about a 65 year old man who hurt himself at work and because he was 65 he’s not covered by compensation. Now, the Government want us to work longer, so if they want us to work longer, surely we must be covered by compensation. And the second part of the question, does it only apply to certain industries or are people covered by Award, like nurses, fireman, police if they work over 65, are they covered by compensation?

DT       Can I break your question into three short bits…the first is, the general rule is, you can’t discriminate on the basis of age. The second is, there are a few specific areas where there continues to exist some discrimination for workers over the age of 65. They include an entitlement to the beneficial tax aspects of a redundancy payment. So, if you’re over 65 and you get retrenched, you don’t get the beneficial tax.

CS       Gee, that’s rough.

DT       And then the other one is, in relation to workers compensation, and there’s certainly provisions within the Act as I understand it, it’s not an area that I’m an expert in, that mean that workers over 65 and I think this is true and it’s not an area I’m an expert in, don’t have the same entitlement to weekly payments.

CS       Weekly payments. Because John, if they are trying to get us to work longer, they better start making those entitlements more applicable and probably update them.

C3       Well the case I’m talking about, the person obviously has got a lot of medical expenses too which they’re not paying and he’s been told, down the track, he’s going to have to have some joint replacement so, you know, he’s hurt himself at work, surely you have to be covered in some way and do the companies who employ over 65 year olds then get a reduced workers compensation fee.

CS       Yeah, well, it could be an enticement for them to employ a 65 year but at the same time it’s not an enticement for the 65 year old to keep working which is what they’re trying to get us to do. Thank you very much for your call. Glen, go right ahead.

C4       Yeah, g’day mate, thanks for taking my call.

CS       That’s ok.

C4       I’ve just been given the flick and, it’s a small business, and I don’t think they realised they had to pay me long service leave at the first and they won’t give me anything in writing to say that I have been given the boot and I think I’ve been discriminated in the sense that I’m the oldest person there but not necessarily the last one on either.

DT       How long were you there for?

C4       Eight and a half years.

DT       Well, they do and you probably need to get some advice on how you can go about recovering your long service leave and, potentially, any other entitlements you’ve got.

C4       Yeah, but they won’t give me anything in writing to say that I’ve been given the go.

DT       Well, you could ring up the Fair Work Ombudsman or see a lawyer and once they start putting things in writing, they’ll have to do something in response.

C4       Yeah, but they won’t give me it in writing but it’s a small business and what’s the go with age discrimination?

DT       Yeah, well age discrimination’s unlawful as well so there’s causes of action in relation to the age discrimination and in relation to payment of long service leave and you really just need to get something in writing and start threatening them.

CS       Ok, Glen, you go hard on that because you’re obviously being badly treated. David, thank you very much for your time this afternoon. Some really good questions as they relate to some of the policies we’ve heard over the past four weeks. Thank you for your time.

DT       Thank you for having me.

CS       Alright, David Taylor from Turner Freeman Lawyers, our sponsors for the programme.