Partner discussing Workplace Employment Law

Tuesday, 10 May 2016 

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CS–Chris Smith /DT – David Taylor /C1,2,3, etc – Callers 

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CS       Yes.  A chance for you to jump on that open line – but do it right away. Do it right away. David Taylor who is a regular on the program won’t be here for a long time, but he is here to answer your questions on workplace law. It can be something to do with the contract you’ve got with your employer; a dismissal issue you are having. It’s free advice. A very rare commodity in the legal world and it’s all courtesy of Turner Freeman Lawyers and you can talk to David Taylor.  By the way, as usual, I’ve got a $100 Westfield Voucher to give away, which I’ll give away in the next 10 minutes all right. A $100 Westfield Voucher to give away and I’ll give that away in the next 10 minutes. Turner Freeman Lawyers provide a range of specialised legal services including compensation and negligence law, asbestos litigation, family and employment law, wills and estates, commercial litigation, superannuation and disability claims as well. So jump on that open line, but do it right away. 131 873. We’re talking workplace employment law today with David Taylor. David, thank you very much for coming in.

DT      Thank you for having me.

CS       Last week Scott Morrison delivered the budget. There were changes announced in internships. Now there will be more paid internships offered to create or help people get into the workforce or put a foot into the workforce. But the law surrounding internships and I guess work experience is another way to put it; Am I supposed to pay for the intern that’s working for us today or should I be just happy and she should just be happy to get her foot in the door?

DT      It’s really complex and there’s no simple answer. So internships in some ways are the white collar equivalent of what apprenticeships were for blue collar industries and there was a very strongly regulated system around apprenticeships, you know everybody understood obligations and you know you had very formal contracts where originally parents would sign their children over for apprenticeship and it would all work. Internships have always been a lot less formal. They’ve been far shorter periods of time generally and they have really been about just getting some experience so that you are able to go out and get a job. The law is certainly if there is a contract going, so if there is a contract of employment, you can’t say well it’s an internship so I don’t have to pay the minimum award. If however you’ve got someone that’s voluntarily – say someone is not being paid at all and during that period they’re gaining genuine experience, there is scope for that to be properly not seen as employment and there’s no legal breach. The most – the classic one is where you’ve got it as part of a course – so often you have degrees that say we are going to put you in a work placement for a period – you are going to go out and you are going to do this and at the end of that – you know – you are going to get credit for it and the law clearly recognises that that is legitimate and lawful and there’s no problem.  Where this is a problem often at law is where people get basically unpaid labour in – they get them to do menial tasks.

CS       Yes – so the system can be abused right?

DT      Absolutely. 

CS       And you know there have been examples of that. What the unions are saying about what was announced in the budget is this – the program that’s being introduced which is a voluntary internship program – an alternative to work for the dole – will now be made compulsory after a year of receiving unemployment benefits – the unions say the program amounts to paying interns $4 an hour.

DT      So this is something that nobody else could do because if a State Government even tried and said we are just going to pay people $4 an hour to do internships, the Commonwealth law would say well that is – there’s an employment relationship going there – you are paying somebody – and in those circumstances they’ve got to be paid the minimum award wage. Because it is the Commonwealth, they can do this….

CS       They can change the law.

DT      They can change the law. They write the rules and they can say well the rules are going to be changed. I guess but the issue is it’s where as internships have generally been for white collar industry so you see them in law, you see them in arts, you see them in those sorts of things. These are positions that are potentially more menial positions and the person going in is doing…. the experience they are looking to get is experience of being an employee rather than specific industry experience. So it’s the experience of turning up on time; the experience of taking a lunch break – all of those things which are said to help someone get jobs regularly. Now the question is – does that more broadly have the effect that you are going to get less scrupulous employees with employers saying well we don’t need to put anybody on a minimum wage – instead we are just going to roll these people over and essentially exploit them.

CS       We’ll have to see. Sam – go right ahead – David Taylor is listening.

Caller 1           Sam 

Sam    Thank you. David, I had my daughter – she is 17 – so she was working in a take away in one of the Westfields upstairs in the take away food section. Now they have her doing “training”  – but she was going there for like over 2 weeks without any pay whatsoever full days. Is that appropriate?

DT      No that’s not appropriate. That would be a good example as something where an employer is essentially getting somebody to work – calling it something else and then saying, well because we are calling it something else it’s not…. we’re somehow avoiding our legal obligations.

Sam    Yes – I was kind of reluctant to do anything about it because the lady who gave her the job – who is managing that take away is best friends with her teacher at school so I didn’t want to say anything.

DT      Well if it’s part of a course at school – that might be different.

Sam    No, no, no.

DT      But if it’s not then potentially what should be done is someone could report it to the Fair Work Ombudsman and they could investigate and this is often a very good place to go for issues like this. A report to the Fair Work Ombudsman – they can investigate whether or not it’s lawful or not and if action needs to be taken – they’re good at taking that action.

Sam                 So is there a number of days that’s appropriate or not at all?

DT      No – training by at large is not a – you know – you can’t just get somebody in and say well we’re not……. look you’re working but we’re calling this training and then not pay them… It just doesn’t work like that as a system.

Sam    And you know to make matters worse – they had her on the hot food machine – whatever it’s called and she actually burned her arm on the first day – they shouldn’t have had her on that….and it left a mark on her arm and they didn’t seek any medical help or anything for her. 

DT      Well this is another good example, so certainly occupational health and safety laws apply to interns. The application of workers compensation laws is a little bit more difficult because if someone’s not an employ it becomes harder – you know – how the law applies – there comes a more complex question and it’s a different set of laws in some ways that apply and it is a far more complex area and you know that’s the many reasons way this unregulated employment – unregulated work is undesirable because you get situations like that and more generally you get people being exploited.

Sam    Yes – I’m not happy about the mark on her arm because like it’s over an inch of a scar – should I take that further or will I have no leg to stand on because she wasn’t an employee at the time?

DT      No – no – I’m not sure you are going to be able to take it further or where you take it further – I’m not certainly giving you any advice on that – but the fact that she wasn’t an employee doesn’t avoid the obligations of the company.

CS       Yeah – all the very best Sam – that turned out to be a nightmare those few days. Sandra – go right ahead.

Caller 2 – Sandra

Sandra            Oh thanks – David, we’ve been given notice of termination because the owner has sold the business and I’ve been a permanent part-time worker for the last 8 years. Anyway, I know that I am owed 13 weeks redundancy but what I can’t find anywhere what constitutes a week in terms of a permanent part timer who does work anything from 25 hours a week to 56 hours a week – depending on the requirements.

DS       It’s…..  my memory is that it is in the Fair Work Act and the redundancy entitlements are about Section 119 of the Act and I think there are definitions within the Act of how you define a week’s pay.

Sandra            Ah, right okay. So the Fair Work Act.

DT      The Fair Work Act. I can’t tell you what section of the Act off hand.

Sandra            Okay

DT      But there are processes and there’s also processes a different process – there’s another one that you would also have an entitlement to for the payment of long service leave and working ………

Sandra            That’s okay – the long service leave I’m comfortable with how that’s all worked out – it was just purely – because everything seems to be geared towards permanent workers in terms of descriptions of redundancy and so on – so…. So Fair Work Act.  Section 119 do you think?

DT      That’s the section from memory. That is where the redundancy entitlement comes – I’m sure you’ll find around there.

Sandra            Lovely.

DT      The formula for working out what a week’s pay is.

Sandra            Lovely. Thank you.

CS       Hey Sandra – you’ve got the $100 Westfield Voucher

Sandra            Oh – have I?

CS       You have 

Sandra            Ohhhh

CS       You are very lucky.

Sandra            Oh, I certainly am.

CS       A $100 Westfield Voucher courtesy of Turner Freeman – good question – love it and thank you very much for being part of the program.

Sandra            Oh – not a problem at all. Do I need to go back to someone there?

CS       Yes stay right there – don’t put the phone down – we’ll put you through to Gabriella and we’ll get the right email address and the right address to get the goodies out to you. Now, industries. People are redescent to take action against their employer especially if they’re in smaller industries – am I right in saying that?

DT      I think that’s definitely right – it’s a real challenge because you take action and you potentially do damage to your reputation – and you become known as someone who’s difficult to employ – so when you go out to try and find other work …..

CS       They’ve heard about you…..

DT      If they’ve heard about you….

CS       You come with reputation……

DT      Yeah, yeah – and that can make it very difficult to enforce your rights.

CS       Yeah – how do you avoid that though, if you’ve got a decent case and you do want to take action and it’s know – it’s inside you and you won’t let go of it and you want to do something about it but you want to stay in that particular industry, how does someone get around that?

DT      Well I think the reality is that in most cases, matters settle, it’s in everybody’s interest that they resolve and you don’t get large – you know – large public disputes…..

CS       Yeah.

DT      And the flipside is for most employers there’s also a risk of reputational damage – employers don’t want to be known as a bad employer – they don’t want to be known as somebody who rip their employee off. 

CS       …….. on the other side of the coin – yeah.

DT      And so – as a practitioner who’s working in this, generally what happens is it is in everybody’s interest for it to be kept quiet and for everybody to you know – put it to bed and move on.

CS       Yeah – if you can. Sometimes it’s not so easy.

DT      Sometimes it’s not so easy and sometimes people get stuck on it and when that happens it’s hard to move on and become a little bit………

CS       It’s a little bit like a relationship – sometimes it’s better to get someone to go in and speak on your behalf out of the court room – out of the official ………. of someone that needs to make a decision.

DT      Rational decisions are often – rational adult decisions are often – you know – pragmatic ones where you say – well this relationship isn’t working – what terms can we agree on when we all move on and we do something else that is working for everybody and being able to do that early enough and appropriately in a way that doesn’t get everybody hurt can generally end up a lot better than if you – you know – if you take strict legal positions and you just fight it to the end.

CS       Yes – there’s some really…..

DT      Because everybody gets burnt.

CS       So be a little bit more pragmatic about how you approach these things and maybe that’s something that previous caller whose daughter got burned…

DT      Yes…

CS       Maybe she needs to take that kind of approach too.

DT      Yes – it is. It’s trying – not softly softly – you’ve got to be you know you’ve got to maintain your rights and entitlements, but certainly recognising that the other side needs to be able to get through this without you know – complete capitulation because people don’t do that.

CS       Always good to have you here David Taylor – thank you very much.

DT      Thank you for having me.

CS       All right – David Taylor – Turner Freeman Lawyers. Employment law today – Thank you for the calls. The $100 Westfield Voucher went up and we do this every Tuesday on the program.