Workplace & employment law in relation to 457 visas

Thursday, 15 August 2013

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CS       Ah yes, great value at Turner Freeman. They are the sponsors of our Legal Matters segment each Thursday afternoon, at around about 1.30pm and, talking employment law today, David Taylor, welcome again.

DT       Hi Chris, how are you?

CS       That’s a fairly flash tie for a lawyer. I thought you’re supposed to be very bland and officious.

DT       I apologise.

CS       It’s very very loud.

DT       It’s quite red isn’t it?

CS       Yes, it’s almost…a Magistrate or a Judge might even pick you up with that tie.

DT       It’s certainly got pretentious – the greater things later in life.

CS       That’s right, it’s not just all about the law. 131873 is the telephone number. It is a unique opportunity to get to talk to a lawyer, free of charge, at any time and you’ve got access to David Taylor right now, who’s an employment law specialist. If you’ve got any drama or upending drama that you think you might have to face in future, this is the time to jump on the telephone right now, 131873 and ask our legal team from Turner Freeman. Now, can I ask you about the election?

DT       Yes.

CS       And aspects of the election which probably cross over into your area, and I’m talking about things like employment law as it relates to 457 visas. Now this is very interesting. We’ve got the union movement, very keen on trying to get local workers better access to various jobs and, yet you know, the reality is, that there are some jobs that Australians won’t do.

DT       It’s a really difficult area to work out the best outcome. There’s clearly something odd when we’re importing labour to do things that there are Australians that want to do but there are jobs out there that there aren’t Australians with the skills or the desire to do and so there’s that need to get labour in to actually do that work.

CS       I have people sometimes on the open line argue one way, very fiercely, very strongly. And others inside industry arguing the complete opposite.

DT       And it’s hard to get a good grip on actually what’s going on. Both sides seem to say that there is a real shortage or, on the other hand, that there’s people out there who want the jobs that just can’t get the job because labour’s being imported. And I think that there’s an issue that comes down to it around wages and conditions and whether or not it’s a question of people doing jobs or a question of wages and conditions.

CS       Isn’t it the case where a boss really should be able to prove that he’s tried other methods to employ local labour?

DT       Yeah, I think, in terms of our economy, we want to ensure that as many Australians get jobs before we start bringing people in to do those jobs.

CS       Naturally.

DT       And so it’s trying to work out what the appropriate threshold is. You know, what should a boss have to do, what needs should have to be demonstrated, before they say well that’s fair enough, you can bring in labour.

CS       Yeah, 131873 the telephone number. Sean, you’ve got a question for David, go right ahead.

C1       G’day David, how you going?

DT       Hi Sean, how are you?

C1       Good thank you. I’m employed and was employed over 10 years ago by a city-based company. That company was then purchased by an Adelaide-based company and there were a number of people that were offered three year contracts, and I was led to believe that that was under the Adelaide-based system of South Australia rather than New South Wales. That has a big affect in New South Wales in comparison to long-service leave because I think I understand it, in South Australia, long service works out at around 1.3 weeks for every year that you have above 10 years.

DT       Yeah, there are different long-service leave acts in operation in different States of the country. So, that’s certainly true and South Australia is quite different to New South Wales in that regard.

C1       So, would…there seems to be a bit of…because it’s 13 years down the track now, and as I said there were three of us that were offered three year contracts, after that three years, those contracts were basically went on to…as part of our normal contractual arrangements to date. So we’re sort of like 13 years down the track. I guess my question is, should I be…am I under that South Australian system or being in New South Wales, am I under the New South Wales legislation?

DT       Well, the good news is, other than around long-service leave and a few other things, there’s now no real difference for workers between different States. Since, if you go back to Work Choices, that brought almost everybody together and then Fair Work brought, really, almost everybody together and there’s only a few Government jobs left. In terms of long-service leave, it’s actually where you’re employed, not where your employer is that will determine the relevant thing. So, if you’re working in New South Wales and everything occurs in New South Wales and you’re effectively a New South Wales employee, then the New South Wales law would apply. The fact that the company may be based in South Australia’s a secondary consideration.

CS       Ok, thank you very much for the call Sean.

27 minutes to 2 o’clock is the time. Victor, go right ahead.

C2       Hi, Chris. Yeah, my name’s Victor as you know. Look, I started with Australia Post around about 15 odd months ago on a permanent/part-time contractual basis, where every six months they’d look at you and, if you’re performing well, renew your contract. Now, Australia Post has got a freeze on anybody coming from the outside into the organisation now, which means there’s plenty more room for us to expand and become full-time and, you know, get extra hours and that sort of thing. There is a problem arising and I’m just wondering where, not just me, but where we part-timers stand when they’re distributing things such as overtime, preferential treatment which overtime comes into, when they turn around and say to us…oh, it goes to the full-time employees, you part-timers only get whatever’s left, if there’s any left?

DT       That sounds like quite a complicated system. It’s a bit difficult just on what you’ve told me to give you an indication on whether or not there’d be any problem with that sort of thing. Certainly, it’s unlawful to discriminate against workers because of the terms that they’re employed on.

C2       Yep.

DT       And there’s a bit of that in that. But there may be another good reason why it’s happening…or there may be other reasons. It may be the nature of the contract that you’re on and the nature of the contract that the non part-time workers are on, would mean that it would be permitted.

CS       But David, why shouldn’t an employer, for reasons purely of expense, be able to decide that my full-timers will get the overtime, not my permanent/part-timers because it will cost me more. Why can’t they make a decision based on how much it’s going to cost?

DT       Oh, I think they probably can. I think…that would be an example of where they could. But if there’s no difference in cost to them and the only reason they’re making the distinction is because there’s a preference of, say, full-time over part-time, then that could be problematic in that instance.

CS       Victor?

C2       Yeah, sorry, if I can just clarify something there about the cost factor. A part-time employee is only employed, all of us, five hours five days a week. Now, if we get an additional two or three hours overtime, that only brings us at a standard rate of pay up to the full-time, you know, where overtime would start. Now the full-timers, when they get offered that overtime, it’s at the time and a half and double time rate so it’s cheaper to employ us. So there’s a lot of….

CS       That’s interesting, so it is cheaper to employ you. So if they were making decisions based on cost, you’d get preferential treatment. You should get it.

C2       Well, that’s right.  Now…

CS       How bizarre.

C2       The only reason I bring this up is that all of a sudden I was…over the last few weeks, I’d been getting quite a bit of overtime and…or additional hours as such, and all of a sudden it’s been taken away from me and all the full-timers are turning to me and saying, geez you’re a great worker but the overtime’s going to us and if there’s any left, we’ll give it to you.

DT       It sounds very odd. It doesn’t sound at all rational does it?

CS       No, you’re not wrong. Let’s leave Victor there. That is something he should actually see, maybe the union affiliate about, and get a ruling on.

DT       I think having a discussion with somebody about working out exactly what’s going on and why Australia Post are doing that would be a sensible thing to do.

CS       Yeah, exactly, ok. David Taylor from Turner Freeman, also sponsors of our Legal Matters segment, is in the studio and happy to take your calls on 131873. Since its beginnings back in 1951, Turner Freeman Lawyers has fought and won some of the biggest cases in Australian legal history. Cases that have affected every day people just like you. Turner Freeman goes into battles where people whose lives have been turned upside down through no fault of their own, they’re ready to help. So if you’re struggling because of someone else’s negligence, speak to Turner Freeman and get the compensation you deserve. Your initial consultation is free and ask about their no win, no fee policy. Don’t let your finances and family suffer, call 1800 800 088 or visit turnerfreeman.com.au. Turner Freeman Lawyers, great people, great results, great value.

And our Legal Matters segment brought to you by Turner Freeman. David Taylor, employment expert, in the studio this afternoon. Ben wanted to know whether the Long Service Leave Act was a Federal or State jurisdiction.

DT       It’s by and large a State jurisdiction. There are Long Service Leave Acts in every State and the Fair Work Act says that the Long Service Leave Act that applies from the States, applies for workers.

CS       Right.

DT       Some Federal Awards have long service leave provisions and they override the State Acts.

CS       Ok, there’s your answer Ben. Ted, go ahead.

C3       Hi Chris.

CS       Hi, David’s listening.

C3       Yeah, David, just a question. My wife works in the child care industry. Now, some time ago, probably five to eight years ago, they were told that they had to sign a form saying that their long service leave would be paid at that current rate, whatever they were on at that time. Now, my question is, is that enforceable and is it legal?

DT       No, would be the short answer. The Long Service Leave Act sets the rate of pay that long service leave’s to be paid at and you can’t contract out of that and, indeed, depending on the nature of the employer and the child care, this would be the case, it would be unlawful and it would be, not a criminal offence, but a civil offence under the Fair Work Act to have someone sign a document like that.

CS       There you go, that’s interesting. If I’m under certain obligations under a contract with an employer and the company changes ownership, where do I stand?

DT       It’s a really interesting and quite a difficult issue. It’s probably both legal and cultural.  When the company changes ownership, there’s often a huge culture…and a new owner will come in and will want to do things differently and that can often cause a degree of resentment and difficulty. Legally, a transfer can be done in one of two ways. It can be a transfer of the business so that there’s a transfer…your employer would actually change. You’d go from being employed by Company A to Company B, in which case that’s a more difficult transfer. Or, there’s a transfer of the ownership of the business. The company that owns it, in which case the employer remains the same.

CS       Analyse. This is a real curly one. Analyse, go ahead.

C3       Yes, hi. I’m just wanting to know what my rights are. I received a phone call recruiting me for a position. I accepted the position after negotiations, gave notice where I was working, turned up to start my new employment, only to be called in the office and told that the woman that offered me the job was away sick and nobody knew what was going on so to go home and they’d let me know what was going on. I later received a phone call that day telling me that, after restructure of the facilities management, the position was no longer available.

DT       What a mess.

CS       Wow.

C3       Yeah.

DT       The…you’ve probably got legal rights because…and they’re rights under the old Trade Practices Act. There was a representation made to you that you’d have a job and then when you turned up, there wasn’t and so the loss or damage that you suffer around your loss of your old job and the fact that you gave notice and, presumably, you can’t go back to the old job that you left?

C3       I did. They actually accepted me back.

CS       Oh, what a nice…you had a good old boss.

C3       Yes.

DT       Well, you were lucky and probably your damage then is pretty limited so your cause of action’s pretty much gone with it. The law generally looks out for you if you’ve suffered loss.

C3       It’s a bit more complicated than that though, because the position that I currently have is a maternity relief position. So, in three months time, I will not have a job and that’s why, I ultimately accepted the other position and the other position was a promotion to what I’m currently doing.

DT       The short legal answer would be, you’d want to look at whether there were representations made to you. If those representations were untrue, did you suffer loss or damage as a result of relying on those representations.

CS       So, in other words, you have a pretty good case Analyse, by the sound of it.

C3       Ok.

CS       Good on you. 131873 is the telephone number. In the Blue Mountains, Jim, hi.

C4       Hi.

CS       Go right ahead.

C4       David, ah yeah. Just a quick question, without going through all the…the whole history. I was hired to work for a company to do commercial cleaning and after, obviously, not a disagreement but not seeing eye to eye, I was texted to say I was…they were going to do the cleaning and I was no longer hired. Now, should they…any company, give you notice of either 24 hours/a week or money in lieu of and because they pay monthly, would you have to wait til the beginning of the next month to get some money?

DT       The old rule that the right period of notice as how often you get paid doesn’t really exist anymore.

C4       Right.

DT       If you’re a casual employee, there’s no prescribed period of notice. If you’re a permanent employee or an employee on a contract, then you either get the notice under your contract or the notice under the Fair Work Act which gets larger over time. So, if you’ve been there for less than a year, you only get a week. If you’ve been there for 10 years, you get four or five weeks depending on how old you are.

C4       Ah right, fair enough. Now, just another, asides that…now seeing as I’m no longer hired and I was asked to leave by text and I texted back to ask for money that was owed to me, could I say, for instance, I finished up on Monday, could I say…well, could I have the money that’s owed to me by Friday? Or would I need to wait until they actually pay when I was messaged back to say, their rules were you get paid at the end of the month and that’s it?

CS       Good question.

DT       I think the obligation on them is to pay you as soon as is reasonable and waiting a month in those sort of circumstances, probably not reasonable. A case like that, I think you’re probably well advised to give the Fair Work Ombudsman a call and they might be able to assist.

CS       The Fair Work Ombudsman. Glen, you had the same kind of question, did you?

C5       Yes, I was just wondering if you’re terminated or if you give notice on an off pay week, should you be entitled to your pay on the day that you finish? Or wait until the pay run comes around, whether it be a week or a month?

DT       If it’s only a week, it’s probably reasonable to wait until the next pay run. If it’s a month and it’s a day or two into the pay run, I think it’s probably unreasonable to have to wait that long.  You’d have to look at the circumstances and as to whether or not it’s reasonable under the period of notice involved.

C5       Hmm ok.

CS       Alright Glenn, thank you for your call. 131873 the telephone number, our Legal Matters segment. We’ve still got a segment to go. We’ll get to that after the break 131873.

 

131873 is the telephone number. Adam, go right ahead, David’s listening.

C6       Hey, how you going David? You there?

CS       Go ahead, yep.

C6       Yeah my question is…I’ve been working for a trucking company for about 12 months now on a casual basis. If I do, say, 15-16 hours a day, do they still pay me the same flat rate of pay?

DT       They shouldn’t. There’ll be a modern award that would cover your employment and the modern award would prescribe…the rates of pay would prescribe when you’d go from working on the flat rate or on the normal rate, which would be probably 115% of the normal permanent rate as a casual to penalty rates…you know, time and a half, double time, double time and a half.  So, on the assumption that you would be covered by a modern award, that would prescribe when you would move on to penalty rates.

CS       Ok, Adam, I’ve got to go quickly to Mark. He’s been waiting online since the beginning.  Go ahead Mark.

C7       Yeah, how you going David?

DT       Hi Mark, how are you?

C7       I’m well. I’ve got a contract. I’m an account manager, and in the contract it states that if I finish employment, I’m not allowed for a 12 month period, to work for an opposition company or a company that sells similar products to what I’m now selling. Is that a legal contract?

DT       It’s certainly a legal contract. The question is whether or not the restraint is void or is it enforceable? There’s a general principle in law that you should be entitled to work and you should be entitled to work where your skills fit. People are able to contract out of those rights and to limit where somebody can move on to and the question becomes whether or not the limitation is just there to protect the employers legitimate interest, or does it go further than that and actually prevent you from being able to earn a living? And it’s quite a judgment call and issues such as the breadth of the restraint. So, is it any competitor or is it just a couple of named competitors, and the length of the restraint would be relevant.

C7       Ok, yeah, it’s quite broad. Like, it doesn’t mention names. It just mentions a similar company. I can’t tell you…

CS       But you get recompense for the fact that they have that clause in the termination don’t you?

C7       Not that I’m aware of, no.

DT       But the legal argument would be the amount that you’re paid as a salary throughout your employment, in part, compensates you for the fact that this restraint exists in your contract. So, you’re receiving the compensation each week for the restraint going forward. That doesn’t mean necessarily the restraint’s reasonable. There’s a lot of law about when restraints are reasonable and when they’re unreasonable and if you want to look at moving, you need to get some advice because if you move in breach of the restraint, you can leave yourself exposed to really nasty claims against you.

CS       Ok, Mark, I’ve got to leave it there and that’s where we leave our segment on Employment Law this afternoon. Sorry to the callers we can’t get to but, as I said earlier, you’ve got to get in early on these very popular topics where people get to “Ask an Expert” and today, David Taylor from Turner Freeman, sponsors of our Legal Matters segment. David, thank you very much for coming in again.

DT       Thanks for having me.

CS       I love the tie, just pass it…right on the counter there, that’d be fantastic mate, thank you.  It’s a beauty!