Partner featured on 2GB discussing Employment Law - 2 June 2015

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

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Read the transcript below:

CS       It is our legal matters segment, a very popular segment, free legal advice and don’t forget we give away a $100 Westfield voucher to our caller of the afternoon and remember to pick up your local newspaper too each week to read the Turner Freeman legal matters column, they cover the range of legal topics that we often cover on the program, compensation and negligence law, family and employment law, wills and estate law and superannuation and disability claims as well. Today we’re talking workplace law and David Taylor is our expert from Turner Freeman and our lawyer. Happy to take your calls on 131 873, so phone in, don’t wait in line, too many people wait too long before calling and then it’s a little bit too late we run out of time, so get in nice and early with your calls about workplace law. David a very good afternoon to you.

RD      Good afternoon to you, Chris.

CS       Good to have you in here. Are you interested in this Chelsea game tonight?

DT      Yes…

CS       I’m getting email after email from people telling me, they want updates on it. How do you update something that hasn’t started yet?

DT      Well it still hasn’t started. That’s the update.

CS       It’s a big international sporting event.

DT      It’s a huge, they’re a huge team.

CS       Sold out

DT      Jose Marino, hearing the country is pretty excited, so he’s here isn’t he?

CS       Who’s that?

DT      Yep.

CS       Yeah. Okay then,

Announcer     Do you want me to do the updates Smithy? They’re about to put an extra 500 seats in the actual stadium to get everyone in. They did a training run last night…

CS       What just 500 more just ringing in, I want to get in.

Announcer     They did a training session last night when the sprinklers came on for half an hour in front of about 10,000, I mean that’s massive.

DT      They were cheering the witch’s hats apparently.

CS       Okay, let’s get down to some workplace news that we’ve noticed this week. Canterbury Council have just become the sixth council in New South Wales to provide paid leave for staff affected by family violence, they’ll be given an extra ten days of annual leave to deal with matters of domestic violence like attending medical appointments and also court proceedings, is this the next frontier?

DT      It’s a next frontier and I think it’s a really good development, it’s something where significant research has shown there is only positive outcomes from this sort of leave being offered. I’ve had, I’ve got some awareness of it particularly around the finance sector and each of the four banks now have policies or enterprise agreement obligations of this kind.

CS       Because when you have to turn up at a court case, maybe it’s an AVO involved, you’ve virtually got to take a holiday don’t you?

DT      Yeah, well at the moment, I mean the counter argument has traditionally been well why can’t you take sick leave for these things, but often it’s not about being sick, I mean if you’re going to a lawyer or you’re going to see the police, you’re getting kids out of a relationship that’s bad, that’s not, no one is sick in that situation so sick leave is not appropriate. It’s a situation where the evidence consistently shows that in order to get out of violent relationships, women need to be in jobs, and if you provide them this sort of leave that gives them the opportunity to get out of the relationship, continue and be constructive and engaged in society, constructive and engaged in their job, more productive.

CS       So you become more productive indirectly, right?

DT      Absolutely, it’s hundreds of millions of dollars of loss to the economy from domestic violence and so these sort of remedies assist in minimising that loss, and they are also the right thing to do. I mean we need to support women at these times of their lives to get through.

CS       Terrible period of their lives.

DT      One in three women is the statistic, will experience domestic violence in their lives, so…

CS       Canterbury, The City of Sydney, Bankstown, Marrickville, Penrith, Ashfield, all involved in all of that. If you’ve got a question on that front 131 873. But Adam’s got a question of a different kind. Go ahead, Adam, David is listening.

Caller No 1     Adam

C1       Oh, g’day, how’s it going?

DT      Good Adam, how are you?

C1       Good, good, actually it’s about redundancies to the point actually, we were previously, there’s quite a few of us in the same claim, were working with a different company and basically obviously got made redundant, now basically where it’s standing at this point in time is, it’s now been 6-7 months after we’ve been made redundant, it’s been before the Commissioner, Commissioner Rowe I believe it is, he’s granted us, yes that the company didn’t do enough for us etc, so therefore he granted in our favour and they just seem to be towing their foot, you know their backsides in this sort of case, so basically I’m just wondering where we stand with that sort of thing, if there’s anymore, anything else we could be doing with that?

DT      Look obviously I don’t know the specifics of what’s happened with you or the nature of the claim that was before the Commission, I think there are two things, if the concern that they haven’t paid the redundancy payment or the concern that you shouldn’t have been dismissed.

C1       No actually, we haven’t been paid, it was the Commissioner was under the same line as pretty much, yes they didn’t do, the previous employer didn’t do enough for us to obtain and that’s the main wording that he used in the court case, they didn’t claim to do enough for us to obtain work, in fact we did the majority of it ourselves and therefore he wasn’t happy with the ongoing, what was going on.

DT      I think ultimately what needs to happen, where you’ve got a decision of the Commission to sort of effect an outcome and that isn’t being complied with, the next step that needs to be taken is to commence proceedings in the court, and it’s either the Federal Circuit Court of the Federal Court and seek an order that that decision be complied with and, because it’s a court and it’s got slightly different powers to the Commission there is a real capacity to ensure that happens and it happens within a pretty fixed period. So what you need to do is, to probably see a lawyer if you haven’t seen a lawyer or if you’ve got a union, see your union and be looking at trying to commence proceedings in a court to force compliance.

C1       Yeah, it just seems to be dragging their foot on this one and basically try to keep it clean there but. yeah no, it just that they seem to be dragging there and basically, yeah we’re really miffed off basically, what’s the hold up with it and how long can they really keep.

DT      Well that’s why you need to go to the court and get the orders from the court to bring the matter to an end. So that’s, I mean once the Commission has made a decision and let’s assume that’s happened, the next step if they haven’t complied with that is to go to the Court and have the Judge order that they comply with the order of the Commission and it’s a civil offence under the Fair Work Act to not comply with an order of the Commission and you need to go to the court to enforce that. So that’s really where you need to go, go to your union, go to a lawyer, get some assistance, some advice on that and then start taking the steps as part of the group to get that outcome.

CS       Or even contact one of our lawyers at Turner Freeman and our sponsor and you can do that through maybe even David Taylor do that at Turner Freeman, 131 873.

DT      Certainly, we’d ne happy to assist on that.

CS       Okay, going back to that crash under the M4, flyover at Silverwater Road, Jeffery Wallis our Sydney traffic reporter says the crews are saying that there are no injuries and the smash has now been cleared from that middle lane, so just an update for those travelling in the area. Another story I noticed today and I talk about my stand-up desk in my preparation office here that I use of a morning, I stand for about 3 hours a day.

DT      A lot of evidence saying it’s pretty good for you.

CS       And they’re saying sitting is the new smoking and there’s a story around today where experts, other experts are saying staff should stand for two hours a day to avoid the risk of heart disease, diabetes and cancer. Now, I can see lawsuits emerging from this down the track where employees sue employers for cardiovascular health etc, do you know of any cases that have come before?

DT      I think that’s all going to be pretty hard because you’d have to be able to demonstrate some causation between…

CS       Direct causation.

DT      Between the sitting and the disease, so one suspects that if you’re getting, if you’re having a heart attack you’re possibly also not going to the gym, you may not be eating so well, you’re doing a whole lot of other things, so being able to say well that was the issue is going to be pretty difficult in proving that causation link. I do think where there is some very interesting ideas within this, is within the field of occupational health and safety, where there is an obligation on employers to ensure that to minimise risks to health of employees and when there’s good evidence saying well, requiring people to sit 8 hours a day is likely to create a risk to health an employer does have an obligation within the occupational health and safety sphere to actually take steps to minimise that, and that might be to ensure that people have breaks or might be having, I suspect you’ve got one where you’ve got the desk that can go up and down if you want. So it’s trying to look at those things because those things are likely to minimise risk and they’re not hugely expensive when you’re looking at a fit-out of an office, putting that sort of thing in is likely not going to create a huge impost on the employer.

CS       I’ve got to go to a quick break, we’ll come back to your calls and David and I are just going to stand up for a couple of minutes while that break is on.

CS       We are talking legal matters and workplace law in particular, Ron has a question for David, go ahead Ron.

Caller No 2     Ron

C2       Thank you gentlemen, my apologies because I’m on a hands-free driving. I’m 68, I’m still working, my company has asked me to stay on, I’m happy to stay on, I enjoy my job, they want me to stay on at least 10 years, now the situation is with worker’s compensation, what happens after 65 and taking into account in that, that I do contract to this company on an ABN, but I do get 100% of my salary from them.

DT      I’m not going to the one to help you on this Ron, I’m not a worker’s compensation lawyer and I’m not an expert on it, certainly it’s true worker’s compensation rights are significantly limited after you’re 65 and certainly it’s true that as a general rule the worker’s compensation system only covers employees and not contractors. There is a system of deemed employees and I’m over it enough to be able to provide much assistance.

CS       It’s a little bit out of the jurisdiction, yeah exactly, 131 873 the telephone number. Eddie, hi.

Caller No 3     Eddie

C3       Hi Chris, hi David. Just had a question about working in extreme weather conditions, I was just wondering like is there a law, it probably isn’t relevant today, but if it got say to over 40 degrees and you still had to work outside, I work outside everyday then just wondering if there was law about that?

DT      There’s a couple of different places where you might get some regulation and assistance. First up there’s an overriding thing that you can only direct someone do to work that is reasonable, so if it is manifestly unsafe or dangerous just as a general principle of employment law, the direction to work would be unreasonable but that’s at the very extreme end. More generally the area of occupation, health and safety again arises, so the employer has got an obligation to minimise risks to health and so requiring people to work outside where it’s hot is potentially going to be risky and, I’m not sure the sort of work you do but if you’re doing something where falling or fainting or any of those sort of things might cause real damage or injury or illness to you or others, then that’s going to be another issue an employer would need to consider and they’d need to assess all of those risks and within that context there’s be issues and then some industrial instruments also have regulation around this, have allowances or different payments that are required and/or have obligations on employers to provide certain facilities so as to assist with it.

C3       Right, I work as a postman so you know, out every day and just when it gets to like fairly hot or say a few weeks back when we had the big storms in Sydney.

DT      It makes it pretty hard.

CS       Hey. Eddie, I’ve got a soft spot for posties, always have and now of course I ride motorcycles and I like posties on motorcycles, I’m going to award you and take the executive decision of giving you the $100 Westfield voucher.

C3       Thanks Chris.

CS       That’s no problem, stay there Eddie we’ll put you through to Carla and we’ll make sure we get you the $100 Westfield voucher courtesy of Turner Freeman, our sponsors. I want to go to Sarah, she’s a teacher, you’ve got a question for David, Sarah? Go right ahead.

Caller No 4     Sarah

C4       Yes, hi Chris, thanks a lot, hi David. Look I’m just a little confused, I had an injury caused by being attacked by a student some years ago and it’s not the injury I’m asking about, I was never given any suitable duties because the Department of Education at the time deemed it that I was only a temporary teacher and I wasn’t entitled to any suitable duties, which is fine but the day I had the conference with the doctor and the rehabilitation consultant and the return to work officer, I was basically told that, and then as soon as I got home to access my email from the Department, they’d shut down my emails, they’ve taken everything away, I’ve never had a letter saying that I’d, you know, been terminated, I haven’t received termination pay, I don’t know what my rights are, I was working at the same place for nearly 4 years and you know, I’m just confused because, you know.

DT      How long ago did all this happen?

CS       Before you ask Sarah that question, I’ve only got about 30 seconds remaining, Sarah why don’t we try and work with you off air.

C4       Yeah sure.

CS       David can work with you during the news at 2 o’clock if we can because I’ve just run out of time.

C4       That’s fine.

CS       But it’s a very interesting question, you didn’t get compensation but you need to know some other aspects of that right? David thank you very much for coming in.

DT      Thanks for having me Chris.

CS       David Taylor from Turner Freeman, our legal matters segment, thank you for those callers who came through and some really good topics tackled today based on what we’ve heard in the news in the workplace field.