Over the last 30 years or so, there have been very few political topics debated as hotly as industrial relations. It seems that every time there is an election, industrial relations is one of the three or four most vigorously pursued issues. The debate often goes something like this: “Don’t vote for the Liberals because they want to strip workers of their hard-won pay and conditions and hand them back to the big end of town,” or, “Don’t vote for Labor because they want to hand as much power as possible to the unions and this will be no good for business and, therefore, no good for the economy.”
Of course, much of the language used in the debates and, indeed, in those couple of sentences, is designed to scare voters into believing that one side or the other will drag industrial relations to an extreme corner of the workplace landscape, thereby creating a paradise/horror-show scenario.
Whilst the debate settles frequently on the extreme positions of each party, the reality of workplace experience is often quite different. However, because this area of the law is so often hotly contested, it is not surprising that, over the years, numerous myths and misconceptions have arisen.
As a lawyer, I often find myself having to compete with advice given by Tommo. Who is Tommo? Tommo is the name that I have given to the bush lawyer who often advises my clients about what they “should do” because Tommo “knows the law.” More often than not, Tommo can be found at a weekend barbeque, at the footy or at Friday night drinks at the pub. I usually have to compete with Tommo on Monday mornings because Tommo has been doing his best work at the weekend.
Why am I mentioning Tommo? Because Tommo’s favourite topic for gratuitous advice is industrial relations law.
The conversation with Tommo will usually go something like this: “Don’t worry mate, you’ll get your job back. They can’t treat you like that. My brother’s best mate’s cousin’s former room-mate went through a similar thing and his boss ended up having to pay thousands.”
Ah yes, the advice from Tommo. All care and no responsibility. I’m sure we have all seen or heard a conversation along those lines in which Tommo espouses full authority on topics about which, in reality, he knows nothing. And this is exactly the problem. Unlike most other areas of the law, industrial relations has, because of its high-profile nature, seemingly developed a number of common myths and misconceptions. Sorry Tommo, but it’s time to bust some of those wide open. Here are the top five.
Myth and misconception number one: your boss cannot make you sign an employment contract. Wrong. If you are offered a job with certain pay and conditions and on the basis that you will have that pay and those conditions recorded in a formal employment contract, then you are bound to sign that contract. If you refuse to sign it, then the employer is entitled to withhold the offer of employment until it is signed. You might think that you are protecting yourself by not signing it but you are not. It is possible that the contract will contain terms and conditions that are much better than the rest of the market will bear. And if your rate of pay is higher than that which you could conceivably obtain elsewhere, why would you not sign? If you do not sign and you are ultimately paid at a lower rate, you will now be in dispute with your employer. How does that protect your rights? Not a great start to your career with that employer.
An employment relationship is like any other contract, so it makes sense that it be formalised in writing. If your employer insists on a written contract and you refuse, then there is an argument to say that a contract has not been made and that neither party has an obligation to the other.
Myth and misconception number two: employers have no right to monitor staff computers or emails sent from the work computer. Wrong. Employers are entitled to ensure that hardware provided by them at their expense to their employees for use within the business is, in fact, being used for the purpose for which it was provided.
Most employees believe that they are entitled to a degree of privacy in the workplace and that they are entitled to use communication devices (computers, landline telephones and employer-provided mobile telephones) for private calls. Whilst these expectations are widespread, they are, in fact, not grounded in any legal authority.
Whilst it is unlawful for anybody to tap into or monitor a private landline telephone call, the same does not apply to email communications. Many employers have email-usage policies that are frequently communicated to employees. Those policies state that computer and email facilities are provided to employees for work-related purposes and that there is an expectation that they will be used predominantly for that purpose – and will be monitored accordingly.
Employees wield enormous power when they send emails to people from work addresses, as they are communicating with the outside world in writing and often with a business signature at the foot of the document. That alone is enough to scare many employers into developing a habit of monitoring electronic traffic to and from the workplace.
Myth and misconception number three: an employer can deduct the cost of job-related equipment supplied to an employee without the employee’s consent. Wrong. If the parties agree that the cost of essential items such as equipment or specific footwear is to be paid for by the employee, then the employee may consent to the cost being deducted from his pay. However, if no such consent is given, then the employer has no right to deduct the funds. Of course, the corollary of this is that the employer might state that without that essential equipment, there is no work for you, leading to a rather unfortunate Mexican stand-off.
Like any contract, the terms should be agreed to in advance. The employer should make it plain that certain equipment is required to perform the task, that the equipment needs to be purchased by the employee, that the employer is happy to acquire it and pass it on to the employee in exchange for payment from wages, and that unless and until the equipment has been acquired, the employee cannot commence employment. The employee should recognise that his employment rests on acquiring the equipment and that it would be in each party’s interests that it be acquired immediately – but perhaps is paid for over time.
Myth and misconception number four: an employee on a probationary period has no rights. Wrong. An employee on a probationary period may be dismissed during or at the expiration of the probationary period without legal redress. However, that does not mean that employers are entitled to turn back the industrial relations clock 250 years and send the employee down the coal mines for a 19-hour day at the pay of $1.50 per hour, without breaks and with a stale ginger biscuit as a reward after 10 years service.
All the usual terms and conditions of employment are employee entitlements during periods of probation, whether they work in coal mines or not. Minimum rates of pay, protection from sexual harassment, break entitlements, compulsory employer superannuation contributions and the right to work in a workplace free from foreseeable hazards are just some of the rights that employees are entitled to enjoy, even within a probationary period. Whilst less-reputable employers might like to use new employees as cannon fodder during their probationary period, the law does not think that that is such a good idea.
Myth and misconception number five: if an employee is employed to do a dangerous job and hurts himself doing it, he cannot sue the employer. Wrong. Whilst an employee who applies for and secures a job in an inherently dangerous industry assumes some risk of injury, this does not ultimately relieve the employer from providing a workplace free from as many foreseeable risks as possible.
Being a roofing contractor is an inherently dangerous job. There is always the risk of falling from a roof and being injured. However, if certain precautions are taken, the risk of injury can be reduced substantially if not eliminated completely. If, however, the employer provides body-strapping, bracing or scaffolding that is defective or inappropriately assembled, then the employee is at risk of significant injury, notwithstanding the fact that those protections could have eliminated that risk. In other words, employer negligence heightens workplace hazards rather than reducing them.
The same is true for a number of security employees and employers. There is a certain assumption of risk that a night patrolman takes on when engaged to perform those tasks. If injury is inflicted by a random assailant, although unfortunate, that could be considered a hazard of the job. If, however, the patrolman is attacked because he was alone in an area notorious for street gang activity and was unarmed because his employer refused to provide him with a suitable firearm and appropriate training, then that is a foreseeable risk that could have easily been avoided.
So Tommo, there you have it. Five of the biggest employment myths and misconceptions busted in one sitting.
I suggest that next time you are receiving an ear-bashing from Tommo, you should smile politely, thank him for his unsolicited advice and tell him that although you found the discussion quite entertaining, you will speak to a real lawyer and get the truth instead.