Partner featured on 2GB discussing Employment Law - 2 September 2014

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

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Read the transcript below:

And now legal matters with Turner Freeman Lawyers, great people, great results, great value.

CS       We have got Turner Freeman Lawyers this afternoon in our legal matters segment of David Taylor whose, your looking bright, fit and terrific, look at the colour in your face.

DT       It’s that lovely weather outside.

CS       Alright, we are talking volunteering today, if you have got a question or even if you have got a story about volunteering that might have pear shape, which can be very instructive for future volunteers, give us a call on 131 873 for some free advice from David Taylor with his industrial employment law portfolio. Now, do volunteers volunteer with an idea of what they are protected from in the workplace.

DT       I think it’s a really difficult line to draw there is obviously volunteers which everybody can see about if you are retired and you are working for a charity, you are working in a place that isn’t a workplace where no one is making money, there types of volunteers are very who are all very comfortable and are going visiting people, that makes it far more complex area of volunteering which is around things like unpaid internships where you are working but is particularly affecting young people where you are working in a business obtaining some experience but not sometimes being paid and what it is their expectations.

CS       Ok, what are some examples? Who in this building where we have a number of interns for instance on this programme might come in one day a week for about 4 or 5 hours then we could do with an extra hand with those stories etc, they may  be exposed but they want to see how it all works and we just say come in for 4 hours a week as long as it fits in with the university study you are doing or something, so that would be a typical volunteerism job right?

DT       Yeah, it would and legally that’s a complex relationship where you have got a situation where a profitable making business is obtaining an economic advantage over somebody, is that actually a job and what is the effect of somebody not getting it and clearly at one end, they want to have the experience, they want to be the worker and it is a win-win for everybody. At the other end where I was at a children’s party the other day and they were talking about cafe’s where you have got extended trial periods for young workers’, you know they work for a week on a trial period and they don’t get paid for that week. That’s pretty much looking to me like an exploitation because the cafe is getting labour for a week not paying anything for that week.

CS       And I bet that person isn’t sitting in a chair out the back either.

DT       No, they are working hard.

CS       Yeah, I bet.

DT       And so at that end you can see it is pretty comfortable ….

CS       Well, its exploitation.

DT       Yeah, it is.

CS       And where’s that line between the two. If for instances someone here goes into the kitchen to get a coffee for someone, and maybe they are making toast or something for host or a producer and cut their finger ….

DT       Yeah, there are real issues and I certainly not the one to give advice on it around workers compensation and the extent to which workers compensation law applies to it. There is other issues from an employer’s perspective about occupational health and safety, and they certainly do apply to unpaid interns and interns and indeed anybody else in the work space.

CS       But see, some of these people are so keen to get into that environment that no one, dots I’s or crosses T’s.

DT       Or thinks about it in the same way so they might not have the same induction.  They come in and they won’t have the training about safe systems of work and so they are exposed and this is a really issue for employers, are they exposing themselves to being prosecuted.  They are also exposing themselves potentially to being prosecuted under the Fair Work Act.

CS       Now two developments recently. Unions NSW have called for a code of practice on unpaid work which makes sense to me and also in 2012, there were _____? government launched a thing called voluntary strategy and then the NSW Legislative Committee on children and young people is currently conducting an enquiry into voluntary and unpaid work places, so there is plenty of study being done and focus on this type of work.

DT       And trying to find the right place to draws the line and making sure that we nurture training for young people that we avoid exploitations.

CS       And I wonder whether there has to be a cut off at which they can work without pay.

DT       In terms of periods of time?

CS       Yeah, yeah.

DT       I mean I think that there are a lot of tests that people have developed, relevant periods of time, the nature of the work so it is clearly different if you are doing the work for a profit making organisation versus a not for profit, I think it is a clear decision. Certainly around creative industries it is a lot more common but you have to the situation in the United States where it is clear that significant numbers of journalists and other creative types are missing out on jobs because there is a class of work just being done by interns that are nonpaid.

CS       What about harassment in the workplace? They would be subject to that no doubt but there would be examples of them being subject to that but are they protected the same way?

DT       They are not protected the same way.

CS       They are not.

DT       No.  There would be differences to their protection. They would still have some protections but is different and it is more complex. They are also vulnerable to being moved on very quickly because they make a complaint or because they say that something underworld is happening so that whole system of work protection that they have developed doesn’t apply in the same way and isn’t well brought out in the context of those people.

CS       The other thing is to look at the democracy of all of this. I know that the Legislative Council of NSW through its commission for children and young people are looking at that but it indicates to me that they are only looking at situations where you volunteer as a young person. I know I have got hundreds of people listening right now who are probably in their 40’s, 50’s and 60’s who have volunteered and are volunteers.

DT       Yes absolutely, I think if you look at the profile of volunteers there is a huge amount done by people who are more established and that throws up a different set of joinders and certainly the issues around safety around workers compensation are all in play there but so are other things and just the exploitation issue and trying to make sure that people are valued and are not exploited.

CS       If you have got a question for David, 131 873 is the telephone number, maybe it’s about some other aspect of employment, you know he is also a contract guru of some note so he can answer your questions about whether you have got contractual problems or whether the award covers you for situations that you find yourself in when it comes to employment and workplace law, he is the man so jump on for some free advice whether it concerns volunteering or not on 131 873. Now compensation can’t change the past but will make a difference to your future so if you are suffering because of someone else’s negligence turn to Turner Freeman lawyers. Now Turner Freeman lawyers are heavy hitters, the type of law firm you need on your side to win and they have been winning for a long time and if Turner Freeman acts for you, they draw over 500 years of combined experience the financial and legal resources of a national firm and a reputation as tough on compromising litigators who won’t rest until you get the compensation you deserve, so give Turner Freeman lawyers a call. They have got offices throughout NSW and Queensland turnerfreeman.com.au. Turner Freeman when you need to win your case.

Turner Freeman, our legal matter segment with David Taylor this afternoon, we are talking workplace law and we have actually, as you have probably realised, have a $100 Westfield voucher to give to a listener every week, a $100 Westfield voucher to the best question of the day which will decide on in the next 10 to 15 minutes and we will organise for the winner to receive the voucher after that announcement is made and don’t forget Turner Freeman are appearing in the local newspaper providing information on a range of legal profits near you. They are in a legal matters column in your local newspaper, you can check out this week’s column and the latest legal matters affecting your community including volunteerism and this will coincide with what we talk about each week on the programme but once again, a $100 Westfield voucher to one of you, depending on what questions we get in the next 10 minutes, 9 minutes away from 2pm. Tracy, David is listening.

C1       Good afternoon, thanks for taking my call.  I have got a relative who works in a NSW Government department. The Government department are putting in a tender for some work overseas which the Government department won. My relative has been selected by her manager to go to this other country and complete all the work but she has got to do it leave without pay. Now, the question is what rights has got in terms of …… what is she covered for? Will she have workers compensation? They are only paying her flights and accommodation, the rest is all up to her even though it is fulfilling the obligations of the tender.

DT       The basic issue around employment is you are employed if there is an employment contract in place. Now in terms of her work overseas it would seem that there is no employment contract that would apply to her and in that context it is not an employment relationship. The leave without pay process is pretty common for employers to say well you can go off and do something for a specified period and you come back and during that period what you do is a matter for you and if she chose to do a volunteer placement overseas then that would be not uncommon. Those sort of opportunities to do Government funded work and I say all those nations like that also do it and it is not uncommon for them to be done on a volunteer basis with only accommodation and trips paid for and they are not employment relationships and there is no employment protection.

C1       That’s pretty significant given that she was tapped on the shoulder for her expertise in what she is able to provide to meet the obligations of the tender.  If she doesn’t go they have got nobody to go and that is that, but she is not covered while she is away.

DT       Well, ultimately that is a matter for them. If she wants to say look I don’t want to spend 12 months not being paid but if you want to come and offer me an employment opportunity to do it I would be happy to consider that then that is certainly open to her and if they wanted to fill their obligations and if that you say, they have go no other easy way of doing it then they need to have a look at that.

C1       Ok, thank you very much.

CS       A touchy area though isn’t it that one, good call, good call. Don’t forget we have got that $100 Westfield voucher to the caller of the afternoon. Nick, hi. Go ahead Nick, David’s listening.

C2       G’day David how are you?

DT       I’m Okay.

C2       Just a question. Is it by law where your employer has to give you PDR (performance development review) every year?

DT       No.

C2       No.

DT       There is no obligation on the employer to that unless it was in your contract and there is very few contracts which would have anything like that.

C2       Okay, thank you.

CS       That’s interesting. I have been in work places where they have performance reviews almost on a 6 monthly basis and I remember as a boss I was instructed to prepare for them, to have these interviews to then assess their performance and it was so much downtime.

DT       I mean, the flip side is you don’t want employees from a human resources perspective to be surprised when somebody says by the way, your performance isn’t great. You want people to know ongoing if they are not meeting expectations or indeed if they are aware they should improve and so having that regular feedback is a good thing.

CS       Lesley, go right ahead.

C3       Yeah hi, thanks Chris. My husband at the moment is on suitable duties and he has got tennis elbow and his employer has requested that he takes annual leave. Now, I told him that he is not allowed to do that because his quality of life is impaired at the moment because he is on suitable duties and I just want to know where he stands.

DT       The fact that he is on suitable duties is irrelevant to the issue from a legal perspective. An employer is entitled to direct someone to take annual leave at an appropriate time as long as the direction is not unreasonable. What would be unlawful is if the reason that they are directing him to take annual leave is because of his injury, so if the only reason they are saying take this period of leave because he is injured but if it is just because they do that because for example, anybody who gets too many days over a Christmas shutdown and there is nothing problematic about that legally.

C3       Well, he’s not allowed to have holidays during the Christmas period or in June which is our children’s birthdays, he is never allowed to have holidays because that is their peak time.

DT       An employer is allowed to do that so long as it is not behaving unreasonably and it’s really on terms on what’s unreasonable.

CS       Yeah, I have ran out of time to continue on that conversation but Lesley, thanks for your call. What we might do there are a number of really good questions coming through and I might take them after the news at 2 o’clock.  We will have some fun with travel after 2 as well. Customer service stories, step right up and tell us the best and the worst.

VOICEOVER

You’re listening to the Chris Smith afternoon show right across Australia.

CS       This is the afternoon programme. Eight minutes after 2 o’clock. We just want to sort of tail through with the end of our Turner Freeman legal matters segment this afternoon because we have got a couple of really good questions coming through and don’t forget each week when we have our legal matters segment, we give away a $100.00 Westfield voucher to the best question of the day within the legal segment so we will do that very very shortly. Let’s grab another question if we can, now from Paul. Paul go ahead, David’s listening.

C4       Yes, David how are you?

DT       Hi Paul, how are you?

C4       Good.  I have just got simple complicated question. Working for a foreign diplomatic mission here in Sydney, we have always been told that these people are above the law because people might be privileged or diplomatic immunity, is that correct or do they have to obey by the local law?

DT       There have been a lot of stories of drivers who have consular vehicles escaping prosecution from various traffic accidents and I guess …. I honestly don’t know, I am trying to think through it. If the questions is are employers of diplomatic missions covered by Australian Industrial Relations Law. I think it maybe whether or not where they are employed. If they are employed in the host country and then they come out here they may well not be but if they are local employees I would think they probably would be. Does that make sense?

C4       My main concern is that being locally employed by a foreign diplomatic mission are these people at the diplomatic mission do they have to obey all the Australian laws when they come – are they local employees like me or …..

DT       If the answer is that you are an Australian employee employed under the Australian law, then the answer to that question is yes.

C4       They have to obey the local laws?

DT       The issue will be whether or not you are an Australian employee.

C4       Yes, I am an Australian employee but we are told that they are entitled to enforce diplomatic privileges and not to obey the law.

DT       I am not an expert in diplomatic privilege, sorry.

CS       What a good question.

DT       It’s an excellent question. I am happy to find out and get back to you. I remember being in China and the Chinese who worked at the Australian Embassy in Bejing were under a local, not a local law but a local agreement workplace agreement wasn’t under an Australian law whereas the Australian staff in the embassy were under Australian Law.

C4       Yes.

DT       That seems to me to be the logical way that it would go but as to where diplomatic immunity fits in, I am not an expert in it.

CS       Paul, why don’t we just put you back to Shannon and that might be something that we could get some answers for you on and send through to you if that is suitable.

C4       Okay, great.

CS       Alright Paul, stay there and I will put you through to Shannon. Last question, only time for one more question, Angela go ahead.

C5       I was employed by a diplomatic mission and I went through a civil claim which I was able to argue in Australian Court. They were a little bit surprised, they thought that they wouldn’t have to answer to political claims but they took on some lawyers here in Sydney and they were advised that they had to go to Court and they had to Court and they had to pay their dues. There were a lot of things that they do, they can be patronising and can be a little bit off putting because for example our employer smokes in the building and this was after smoking was banned in Australia.  We could do nothing about it, every time we told our employer when she was doing it they said they couldn’t impose it on her because it was a diplomatic problem.

DT       That’s interesting and related to which country Angela.

C5       Italy.

CS       Right, that’s interesting. Because culturally they wouldn’t ban smoking as we have done in our work places

C5       That’s right and also to have a job in Italy at that time was a privilege so employees didn’t complain. The local staff did so I am really surprised.

CS       Thank you Angela, good insight. Amazing I think I might give the $100 voucher to Paul.

DT       I think so, that’s an excellent question. I was stumped

CS       Yeah, well maybe this is all about stumping the expert you know. Stump the expert on Turner Freeman. It’s not often you get stumped David, that’s a beauty. Fantastic, so Paul gets the $100.00 Westfield voucher. I have got to say goodbye to you David, thank you for coming in.

DT       Thanks for having me.

CS       David Taylor from Turner Freeman and they are sponsors and of course contributors to our legal matters segment which we have every Tuesday afternoon.