Turner Freeman discussing Employment & Workplace Law – 12/08/2014

Tuesday, 12 August 2014

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

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CS       David Taylor from Turner Freeman is ready to take your calls, jump on that open line 131873, it’s not often you get free legal advice but that’s where it’s coming from today, David Taylor who is an employment and work place relations expert. Employment and work place relations. The number is 131873, David Taylor welcome to the studio once again

DT      Hi Chris how are you

CS       Very, very well, thank you for coming in once again. A stack to talk about but I want to talk about penalty rates before we do anything. Because this is so interesting you’ve got Jamie Briggs talking to a small business audience today, the assistant infrastructure minister saying that business and the Government need to team up to make the case for lowering penalty rates. And then I noticed about an hour later out came a release from the employment minister who is Erica Betts and Erica Betts has said “the claim today that the Government has any plans to change the way penalty rates are determined is false. There will be no change to the way penalty rates are set. The role of determining minimum wages and conditions including penalty rates will remain with the Fair Work Commission”

DT       Do you think it might have been a junior minister getting into a little bit of trouble this morning?

CS       Exactly. Exactly but it’s on the radar there has been too much mention of a change to penalty rates for it not to be

DT       It is and Tony Abbott said before the election that penalty rates, I think the phrase he used was “job killers”, and it is a really complex bit of social policy. There is such strong arguments in some ways, both ways.

CS       But it is out dated.

DT       It is

CS       The frame work for penalty rates in this country were formulated in the 60s

DT       It’s certainly true that it was a product of a time when there were far stronger working weeks and that the week ended for most people on Friday night and for some people at 12 pm or 1 pm on a Saturday. We haven’t, that change as a society where we have moved from expecting and services to be available only those times to expecting services to be available 7 days a week hasn’t really sounded in how we deal with employment law and a whole lot of other issues I think. Another really obvious one that is connected to this is child care. Child care is still very much held back to that working week. And so on the one hand we expect these things to be there all the time but on the other hand

CS       Well there must be adjustments to child care arrangements on the weekend if we are to make adjustments to penalty rates. They have to be tied in together

DT       I think that is right. I think you’ve got to say what does it mean for people, there is good things about flexibility for people being able to work broader times more flexible times but how do we deal with that as a society to ensure that people still have that really important time with their families. That parents can look after their kids and that it isn’t always, and this is I think, one of the horrible things that has happened that parenting is down by one parent alone while the other parent is working and then, there is always a parent around, but there is seldom two parents around and there is seldom family activities going

CS       By all means jump on the open line if you’d like to discuss the idea that penalty rates should somehow be reformed or not, 131873. Jamie Briggs bear in mind he was a Howard advisor, very much an architect, one of the architect of Work Choices and no doubt the opposition will jump on this throughout the afternoon. It is a contentious point and understandably Erica Betts doesn’t want to have to face that contention of the next few days. Wayne go right ahead, David is listening

C1       Hey mate how are you

DT       Hi Wayne, how are you

C1       Not too bad thanks. The question is about a couple of years ago I used to work for a major shopping centre and what actually happened was, while I was working for them I was subbing through them, I reported a pot hole several times, it went on for about a couple of months, eventually what happen was I fell into that pot hole. Due to falling into that pot hole I had to go into hospital have about 8 months off work and I did return to work the pot hole was filled and everything was pushed under the rug. Now what my question is, who should be really held liable for that and now it minimises my, I’m a very active person and minimises things I do

DT       Your question is essentially one around worker’s compensation and the law prohibits me from saying very much around those things. It something you may want to get some advice from, from somebody on. There are very strong regulations about how all of those things work and I think that is probably all I can say.

CS       Yeah that’s right. Worker’s compensation is a maze in terms of what is allowed to be broadcast at the time and it’s not an area we elect to go through. Even when we talk about work place relations on the programme. By the way Turner Freeman you can see is appearing at the moment in the local newspaper near you with a range of legal topics in a weekly legal matters column and this week the topic is employment and work place relations as we are discussing today. But I should also make mention that Turner Freeman will provide a $100 Westfield voucher that’s each week to the question of the day, which we will pick at the end of the programme. So question of the day over the next 20 minutes will get for themselves a $100 Westfield voucher so we will see what we hear from here on in. Dylan go right ahead, David is listening

C2       Hey David, I was wondering if I could bet your advice for a colleague of mine. She has recently come over from another company in the same industry and she is owed $5,000 worth of commission from that company for sales which she made and my advice for her was to go to the Fair Work Ombudsman, but she said they won’t touch commission matters. I was just wondering what your advice would be

DT       The Fair Work Ombudsman only really assists where it’s claims that arise out of the Fair Work Act or out of Awards and things like that. Commissions are, with very few exceptions arise out of contracts of employment. Where the amount owed is $5,000 she is going to be hard pressed to find a way to do that efficiently in terms of the Courts as the legal costs of taking any matter to Court are often more than $5,000. The claim she would have potentially would be a claim for breach of contract. Around commissions one of the really vexed areas is the extent to which employers are required to pay commission for work done when somebody was there, but where the payment doesn’t come in until after they leave, so commissions are often, if you sell this then you get 10% of the costs. If the payments not made until after somebody leaves does the person have an entitlement to that commission, and that is a really complex area as well

C2       Yeah it just a real bummer, that one because I said to her it’s a big part of wage. Often with commission roles, yes you are working off a lower base and that’s the whole incentive of the job is that making extra commission

CS       So Dylan has she gone hard against her former employer and put her hand out and said where is my $5,000

C2       No she is really worried about what she should do because if she goes hard at them she is worried that they’re going to start to take legal action because we are in the same industry and they are threatening that part of her contract when she left was that she couldn’t attack their business in the next 6 months after she left.

CS       Yeah but at the same time, if she has left the business she has got nothing to lose if she simply sends a letter saying this is the argument that I have that I’m owed $5,000 would you please reply to my request.

C2       Yeah so you reckon just throw the ball back in their court.

CS       Oh well David you’re the lawyer

DT       I think certainly writing

CS       You’ve got to ask

DT       Writing to them and saying to them why haven’t I been paid what I’m due is a pretty straight forward first step and isn’t going to costs anyone too much.

CS       Alright Dylan I’ll leave it with you, we’ll go to another call. No we won’t I want to take a break because we are getting close to that time as well, David Taylor from Turner Freeman here to take your calls, 131873 the telephone number.

Legal matters and don’t forget the best question of the week today gets a $100 Westfield voucher courtesy of Turner Freeman. Daniel go right ahead David Taylor is listening.

C3       G’day David

DT       Hi Daniel how are you.

C3       I’m working for an agency, I’m a casual employee right and I’ve working for the company that uses the agency which I work for and we work under their EBA and 12 months of employment in their EBA for casual staff they must be offered a permanent job and which they haven’t and it’s now been 2 years and there is about 7 of us and we’ve been around the same amount of time working over 12 months, but the question is they give us a 2 week break every 12 months to break our contract and restart us. Do they have to live by that EBA because we are in a union and the union is not doing anything for us, I’m just wondering.

DT       I think there are some reasonably complex questions and you’d want to probably get some advice. Can I ask the, in terms of the employer, who actually employs you, you is paying your money each week?

C3       The agency

DT       The agency. Are you covered by the enterprise agreement? Does the enterprise agreement govern the conditions of your employment?

C3       Well

DT       Or does it only govern the employment of those employed directly by the employer?

C3       That’s what I’m not 100% sure of. The wording in the EBA is casual staff must be offered

DT       It may be that casual staff employed directly by the employer must be offered, whereas casual staff employed through an agency agreement aren’t covered by the EBA and so aren’t subject to the same rules and regulations

C3       They only work for the agency if they are casual staff all the rest are permanent

DT       I think you probably want to get some advice and if you want to give me a call I’m happy to have a look at it and give you some feedback

C3       Ok, can I get some details?

CS       Yeah Daniel stay right there, I’ll put you through to Shannon and she will give you David’s number at Turner Freeman, 131873, John hi

C4       Yeah hi

DT       Hi John how are you

C4       Good thanks. I’m a small employer. I employee less than 15 staff and we contract to an organisation and that organisation is shutting down for a couple of months. Under the agreement that I have with that company I’m not going to earn, my company is not going to earn any income whatsoever and as a result I’ve got to put all my staff off. Now they have been working with me for more than 12 months, what I wanted to find out was, do I have to make them redundant or can I just terminate their employment?

DT       Well making them redundant is a form of terminating their employment

C4       Yes there is a cost associated with that though

DT       Well not if you’re a small business employer because you wouldn’t normally have, depending on the nature of what governs you, as a small business employer you avoid some of the obligations to pay redundancy pay and the other obligations under the Act and instruments around redundancy pay. So there would be somewhere to explore there. The other thing that you could look at doing is some industries have got a capacity to stand workers down. So in a circumstance like where you’ve got, where there is a period where you’re unable to employ them for a period, you are not actually retrenching them, but you are just standing them down for that period and their jobs are ongoing

C4       Yeah I had a look at the national employment standards and there didn’t seem to be anything there in relation to

DT       Stand downs

C4       Well no terminations. It basically said if, my reading of it was that if they were employed for more than 12 months there was a cost based on their years of employment, that’s why I was getting confused as a small employer I thought I was exempt

DT       I think you are, there are certainly significant circumstances where you are exempt from redundancy pay, you’re not exempt from termination, from providing notice of termination

C4       No of course not

DT       So, but as to and when, I can’t remember what the NES figure is off hand for 12 months service but it’s in 2 or 4 weeks would be the redundancy amount. I think you need to have a good look at the Act and any awards that would apply and get some clarity on it so you can be straight forward with the employees as to their entitlements

CS       Thank you for your call John, I’ve got to get to James, go ahead James

C5       Hi I’m just ring up. A few weeks ago I changed positions at work and changed hours and everything and I don’t know what they did with the system but they have put me through at the wrong rate and I got paid a few hundred dollars, like $180 extra a week

CS       You got overpaid

C5       Yeah

CS       That’s got to be a first

C5       Yeah, do I have to pay that money back or

CS       Good question. Hey listen I’ll tell you what you are probably going to have to pay it back, I don’t know what David is going to tell you but we will get to that in a second, I’m going to give you the $100 Westfield voucher, because if you do have to pay it back that may help you through, James

C5       Oh thank you

CS       Now answer the question David, if you can

DT       The short answer is you’ve got an obligation to pay it back if they pursue you for it. They have no entitlement to deduct the money from your pay, what should happen is that they should come to you and say, look we’ve made the mistake, let’s come up with an arrangement about repaying it. If you say no I’m not going to repay it, there then forced to sue you and if they sued you then they would be able to recover the money from you because it’s not something that you’re lawfully entitled to

CS       Ok but does he have to voluntarily give it back

DT       No he doesn’t have to voluntarily give it back, but if he doesn’t he is opened to being sued for it to be recovered. And he would lose that action

C5       Ok

DT       So it is in your interest to reach an agreement with employer to repay it but reach an agreement with them over a sensible period of time

CS       That would be about right, James stay right there, we’ll get you the $100 Westfield voucher, I’ll put you through to Shannon and David Taylor thank you so much for your time this afternoon

DT       Thank you for having me Chris

CS       Some very interesting questions today and we’ll do it again next week. From Turner Freeman legal matters.