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Solicitor providing Q & A on Employment Law – 14 June 2016

Minimum wage increase

Tuesday, 14 June 2016 


CS – Chris Smith /EH –Ellen Hitchin /C1,2,3, etc – Callers 


CS       Well we’re talking about the laws around employment today – around the workplace. The minimum wage which has been increased by 2.4% to $672.70 – so we’ll find out what this means for the Australians affected – what about contracts and one of the more recent more high profile events associated with a contract was the dismissal of the 60 Minutes producer over the kidnapping story in Beirut. How do these contracts work out and do you need to give people who are on contract a series of warnings before you actually sack them? We’ll talk to Ellen Hitchin who is our expert from Turner Freeman Lawyers today and she joins me in the studio. Ellen welcome for the very first time – you are a debutante.

EH      Thanks for having me Chris.

CS       Hopefully it doesn’t feel like your debuting and you can relax and answer our questions and if you’ve got a question for Ellen, it’s 131 873 and we’ll be selecting a caller between now and 2 to win a $100 Westfield voucher – so we’ll give it away to a caller who asks one of the most relevant questions of the afternoon and don’t forget 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 and superannuation and disability claims. That was something we dealt with last week on the program and we had a heap of feedback but on the workplace, 131 873 is the telephone number. Ellen – before we take calls, the minimum has been increased by 2.4%. How many employees does this really affect in Australia? 

EH      It affects about one fifth of Australian workers which is approximately 1.86 million employees.

CS       And it starts July 1 this year. Is that right?

EH      1st of July – the new financial year.

CS       So what are the benefits of the minimum wage increase apart from the fact that the theory is that people need the extra money – what other benefits are there with the minimum wage increase?

EH      Well there’s lots of factors that the Fair Work Commission Expert Panel take into account, obviously economics is hugely important because if you increase the minimum wage too much that can make huge affects on the employers who are paying that wage.

CS       Yeah.

EH      But also if there’s more money in people’s pockets that can also be a boost to the economy; so it’s got to do with economy, it’s got to do with social policies, living standards, making sure people aren’t living below the poverty line.

CS       So when they decide….. say the Fair Work Commission decides what to do with minimum wages, who sits on the Panel? Does every sector get a chance to make their case?

EH      Yes. So the Expert Panel is legislated to include the President of the Fair Work Commission, three full time members who are Judges of the Commission – the Judicial Officers and then three part time experts who are experts in the various areas of workplace relations, economics, social policy business, commerce etc. So there’s part-time members – that’s their only role for the Fair Work Commission is to sit on this Panel and provide that expert services – but also the Panel will take submissions from…….

CS       Unions?

EH      From Unions

CS       Employers?

EH      From employer groups – from you know – economists and you know they take a lot of factors into account in coming to the decision.

CS       Okay – let’s talk about working without pay at all and this is an area that has been under discussion of late and I know I’ve had callers about how…. how do people break into certain industries and one of the ways to do that – and we do it here in radio where people come and work for nothing – almost interns and all of a sudden they are doing such a great job that they end up getting a job. Margaret – you’ve got a question for Ellen – go right ahead. 

Caller 1 – Margaret 

Margaret        Yes. Is it legal for employers to do that to ask young people to work a few days without pay and are they covered by workers compensation if something happens to them?

CS       Good question.

EH      It’s a really complex area Margaret and there’s no easy answer but yes it’s legal for employers to provide work experience particularly to young people and to students and quite often that’s a component of certain training courses that you undertake a period of work experience and you are not required to be paid for that but employers do need to be careful that they are not just getting free labour and they are not abusing that because if you are treating somebody like an employee and getting free work out of them then certainly there will be an argument then that you ought to pay them for their services.

CS       So can the Human Resources Department actually cover them for falling over in the corridor even though they are not getting paid?

EH      My understanding yes and I am not a workers compensation lawyer – it’s a separate area but yes – anyone in your workplace as long as all of …. you know they’ve been signed in and …….

CS       So even someone like you?

EH      Yes – I had to sign in at the desk downstairs.

CS       So if that microphone hits you on the head and you claim that you’ve been injured…. you’re covered.

EH      Absolutely – or it should be and hopefully your policies are up to date.

CS       All right Margaret – how does that answer your question?

Margaret        Is there any time limit that they can ask you to work without pay?

EH      Do you have an example Margaret?

Margaret        Well my son wants to get an …………apprentice carpenter – he wants to get into that sort of field.

EH      Well if he’s working as an apprentice he should absolutely be getting some pay – there are definitely schemes for apprentices – their wages are carefully regulated by the various awards so ……

Margaret        They want to trial him before they sort of take him on as an apprentice. So how does that work? What if he’s injured and what if they keep trialling people and sort of never take anyone on and pay them?

EH      Well it sounds a bit dodgy when you put it that way but if it is only for a day or two I wouldn’t think that would be problematic but if they want him to come and do 4 weeks’ worth of trialling without any pay, I think that would be an issue.

CS       How long are they saying he should come in and work without pay Margaret?

Margaret        About 2 weeks.

EH      It doesn’t sound right to me.

Margaret        No. 

CS       But Margaret. Can I just tell you that most of the jobs that I’ve even got in life – I’ve worked for free initially and  you just force your way in.

Margaret        Right.

CS       That’s all I will say but Margaret can I give you the $100 Westfield Voucher?

Margaret        Ohhhh.

CS       You’ve asked the most

Margaret        Wonderful

CS       …. indecisive questions we’ve had for a couple of weeks so ……

Margaret        Oh…. I can buy some work boots for my son.

CS       Yes!! perfect!! Margaret $100 Westfield Voucher – stay on the line – we’ll put you through Gabriella and get you the $100 Westfield Voucher.  I’ve got to take a break and we’ll come back with Ellen from Turner Freeman – we’re talking workplace law – jump on – 131 873.

Short Break 

CS       Yes – our Turner Freeman Legal Matters segment – Ellen Hitchin in the studio to take the calls on employment law.  Evan – you’ve got a question for Ellen – go ahead. 

Caller 2 – Evan 

Evan               Oh yeah g’day Ellen – how are you going?

EH      Good thank you Evan.

Evan   I’ve ….. I’m luckily enough to be dating a foreigner I guess who was employed on a 457 Business Development Manager Visa. Now, they’ve employed her for 2 years and when this time came up for her to …. for them to nominate her for residency, they’ve basically told that they’re not going to do it because they have to then guarantee her a further 2 years of work after the visa. So they’ve basically used her for the these past 2 years and now she can’t get a new visa – a new job. 

CS       But when they took the – they got the 457 for her and hired her, they were under no responsibility to find her a place to live.

Evan   No, no, no, not at all. The way that I’ve been told the situation is, once they’ve worked the 2 years they then become eligible for the company to nominate her for residency.

CS       But they have a choice don’t they?

Evan   Well that’s what I want to know? Can they choose not to nominate her?

CS       This is more immigration base – don’t you think Ellen?

EH      Yes. Look I’m not an expert on immigration law but I think the system just wouldn’t work if there was an obligation for employees if they had to keep foreign workers on and had to guarantee them permanent residency – I think that for any reason the employment relationship might not work out and I think employers will be much less keen to take up the opportunity if they felt bound to keep that employee on….

CS       And that can still mean that the employer could be using the person because they want the person in the productive side of the business but that’s the way the 457 Visa was set up.

EH      Well that’s right – to find skilled workers.

CS       Not to house people or make them residents or citizens either.

EH      Yes – that’s my understanding but ultimately if your partner or girlfriend was confused about what her entitlements were I’d ask her to check her contract first and foremost and just see what it was that she has been guaranteed and for how long?

CS       Yes that’s good advice. Ross – go right ahead. Ellen’s listening.

Caller 3 – Ross 

Ross    Yeah – hi – just a question about these contracts that people are working under – I’ve been working under a so called contract for a few years now in which I didn’t have a choice and this is my only source of income from this company. Now I believe – I’m not sure – that the Tax Department – now – deem that I was an employee – is that correct?

EH      It’s a complex area – the definition between an employee and an independent contractor – I think that’s what you’re getting out Ross…

Ross    Yeah.

EH      You have your own business – is that correct?

Ross    Yeah.

EH      Is that correct? With your own ABN?

Ross    Yes – that’s right – I had to.

EH      Well if you’re completely dependent on this other company for your work and if they more or less direct the way the method and the times in which you complete that work, in theory there’s an argument that you are actually an employee rather than an independent contractor but it’s a complex issue and there’s lots of matters that a court will take into account.

CS       And you might have to get “lawyer[ed]” up by the sound of it.

Ross    Yeah – because a few of us have been terminated.

CS       Ohhh right. Okay – there’s a place called Turner Freeman – you might want to contact them and do it rather quickly by the sound of it.  Thank you very much for your call – Ellen Hitchin – thank you so much for coming in – your debut was perfect – 10 out of 10.

EH      Thanks again Chris.

CS       Thanks for that – Ellen Hitchin from Turner Freeman Lawyers.


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