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Speaker 1: You're listening to a podcast from news Talk. S'd be

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Speaker 1: follow this and our Wide Ranger podcast now on iHeartRadio.

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Speaker 2: Gareth Abdenaugh is an employment workplace in information expert and

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Speaker 2: director of Abdenor Employment Law. He joins us once a

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Speaker 2: month on our Ask the Expert series to answer listeners questions,

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Speaker 2: and he's back with us this afternoon.

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Speaker 3: Gareth, Hello, hey guys, how you doing very good? How

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Speaker 3: was christ you this afternoon?

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Speaker 4: Yeah it's a bit windy and rainy, so it's a

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Speaker 4: good inside day.

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Speaker 3: Yeah, not very nice.

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Speaker 5: It is absolutely beautiful here, blue skies and all absolutely amazing.

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Speaker 3: Anytime you want a holiday up here, Gareth, you just

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Speaker 3: give us a buzz.

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Speaker 4: It's actually I don't believe it for a second.

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Speaker 5: It's actually raining up here. And I've got my nephew

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Speaker 5: visiting from from Dunedin. And whenever one of my family

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Speaker 5: members visit from Dunedin, it's always bad weather. My dad

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Speaker 5: will come for the only frost of the year and see,

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Speaker 5: it's not so great up here.

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Speaker 3: Is it Murphy's law?

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Speaker 5: Then Felix is going to go back saying it rains

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Speaker 5: here every day.

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Speaker 4: That's what happens. When to leave the main Land, Yeah, exactly.

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Speaker 2: Now, oh one hundred and eighty ten eighty is the

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Speaker 2: number to call if you want to have a chat

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Speaker 2: to garethees brilliant and it pays to get it in

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Speaker 2: early because it's always a popular segment. If you prefer

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Speaker 2: to text more than welcome to nine two. Nine two

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Speaker 2: is the text number. And we've got plenty of great

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Speaker 2: questions coming through Gareth, but we'll just go straight to

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Speaker 2: the phones because Steven's on standby giddy.

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Speaker 6: Stephen, Well, Hi, I tell you I just got a

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Speaker 6: question about the public holidays. You know. My understanding is

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Speaker 6: that if you're required to work on your normal roster day,

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Speaker 6: if it falls out for the holiday, you're entitled to

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Speaker 6: a time and a half day and also an alternative

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Speaker 6: day off. In conversation, my question is the definition of

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Speaker 6: the normal roster to day because currently I work in

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Speaker 6: a cafe and al roster changes on a weekly basis.

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Speaker 6: And then I think I just sense it because it

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Speaker 6: has happened a two or three times already this year.

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Speaker 6: My sense is that's what the box has gone, and

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Speaker 6: they're trying to purposely ross you off on a public holiday.

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Speaker 6: And then, because the boss is understand is that unless

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Speaker 6: you are rostered to work on a particular day, let's

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Speaker 6: say Monday, for three weeks conpectively. Otherwise it doesn't classify

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Speaker 6: as a normal rosters day. Is that correct? Or are

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Speaker 6: they able to do that?

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Speaker 4: Yeah, that's a great question, Stephen. And this is one

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Speaker 4: of those strange provisions in the Holidays Act that keeps

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Speaker 4: people calling. Yeah, it's not a straightforward question. If you

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Speaker 4: have varied days of work, like you work on a roster,

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Speaker 4: if there is an argument over whether it's a normal

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Speaker 4: day or not. I have seen cases where people have

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Speaker 4: looked at the previous six months of work and seeing

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Speaker 4: if that is regularly a day that you work. I'm

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Speaker 4: not sure if looking at the past three weeks is

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Speaker 4: going to be enough. It's certainly an argument, but this

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Speaker 4: is not a straightforward yes or no question, unfortunately. And

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Speaker 4: that's the draw of the Holidays Act.

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Speaker 6: Okay, so they can actually proposely off and then the

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Speaker 6: next week, like you work the five weeks in between

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Speaker 6: the two public holidays, and he happened to be off

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Speaker 6: for those holidays.

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Speaker 4: Yeah, I definitely think that's worth an argument.

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Speaker 6: Yeah, okay, all right, okay, thank you very much.

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Speaker 2: All the best Stephen, thank you very much. Just on

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Speaker 2: the Holidays Act at South Gareth and I know that's

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Speaker 2: the bane of your life. But is there some movement?

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Speaker 2: There was some talk earlier on from the Coalition government

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Speaker 2: that they were looking to change some of that legislation.

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Speaker 3: Is that still the case.

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Speaker 4: Yeah, there have been several attempts at it already where

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Speaker 4: various working groups have been put together to try and

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Speaker 4: simplify it. It's incredible, incredibly difficult to do though, and

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Speaker 4: my gut feeling is that it would be much better

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Speaker 4: just to completely rewrite it from scratch. Of course, that's

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Speaker 4: a that's a huge piece of work, and it keeps

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Speaker 4: falling down the list of priorities.

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Speaker 7: Yeah.

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Speaker 2: Absolutely, some great teachs coming through on nine to two,

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Speaker 2: nine to two after that.

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Speaker 5: This is an interesting one actually and kind of complicated,

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Speaker 5: I imagine after the whole Andrew Bailey thing. I don't

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Speaker 5: know how to behave at work? Can I hug people?

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Speaker 5: I used to hug everyone in the morning. Is it

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Speaker 5: only touching an anger that's the problem? What about friendly touching?

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Speaker 5: I can see a official kuy. I don't think they

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Speaker 5: mean it to sound exactly like that. Yeah, but you

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Speaker 5: get what I mean, I thought you were asking.

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Speaker 3: He's not allowed to touch anyone there.

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Speaker 4: Well, I'm happy to give you a hug.

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Speaker 5: Well, it's an interesting word friendly touching, And I think

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Speaker 5: I know what they mean. Yeah, you know, like, is

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Speaker 5: it like jovial rather than mean? Yeah? Yeah, yeah, yeah.

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Speaker 4: In this day and age, my legal advice would be

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Speaker 4: best not to touch anyone you work with, no matter

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Speaker 4: what you intend by it. Of course, in reality, some

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Speaker 4: people are huggy people. Yeah, but if there's any doubt,

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Speaker 4: don't Yeah.

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Speaker 5: It's a that's kind of a funny concept, doesn't it,

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Speaker 5: Because you they're coming Because I'm not really a huggy person,

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Speaker 5: but I'm not going to deny a hug from someone.

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Speaker 5: So if someone's coming in for the sort of a.

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Speaker 2: Hanging and I'm sure Gareth, you know, if someone wanted

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Speaker 2: to take it further, was a handshake, for example, that

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Speaker 2: would be easier to argue rather than than a hug.

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Speaker 5: Yeah, surely we're not in the world where you can't

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Speaker 5: have a handshake.

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Speaker 4: I hope not.

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Speaker 3: Cindy, how are you this afternoon?

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Speaker 8: Yeah? Good things.

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Speaker 3: Gareth is standing by.

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Speaker 8: Hi, Gareth, thanks for taking my call. I'm just wanting

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Speaker 8: to can you please explain the ten days sickly, even

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Speaker 8: caring over to the next year to make twenty. How

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Speaker 8: does it work?

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Speaker 4: Yeah, So, basically, there's a cap that you can't have

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Speaker 4: more than twenty days, and because you get ten new

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Speaker 4: ones each year, if you haven't used any of them

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Speaker 4: and you've got twenty and you get another ten, you

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Speaker 4: don't end up with thirty. The ten oldest ones fall

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Speaker 4: away and you've still got twenty. Of course, these days

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Speaker 4: it seems pretty rare that people don't use their sick leave,

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Speaker 4: so it's unusual for someone to have their maximum and

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Speaker 4: then get another ten.

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Speaker 8: Okay, yeah, No, I'm just speaking us from the point

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Speaker 8: of an employer with someone who hasn't taken this sick leave.

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Speaker 8: I've only taken a couple of days and they now

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Speaker 8: on leave due to an injury, and I've given them

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Speaker 8: ten days sickly, but they've still got some leftoves from

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Speaker 8: the previous years, So do I carry that over?

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Speaker 6: Yeah?

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Speaker 4: I mean so now we're starting to get into quite

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Speaker 4: a technical thing, which I can't give you a view

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Speaker 4: worth having all of the facts. But there's a maximum

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Speaker 4: of twenty and my understanding from the logistics is that

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Speaker 4: you would be using the oldest ones first, so if

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Speaker 4: there ones that haven't been used, then they will carry

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Speaker 4: over to the next year, as long as it doesn't

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Speaker 4: go with that maximum. Okay, of course, just to complicate

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Speaker 4: things further, some organizations have additional benefits over and above

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Speaker 4: the statutory minimums, and for some of those organizations, well,

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Speaker 4: employees can have an awful lot of sickly built up.

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Speaker 4: But it doesn't sound like that's the case for you.

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Speaker 8: No, okay, all.

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Speaker 3: Right, thanks, good luck.

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Speaker 2: If you've got a question for Gareth, now is your opportunity, Oh,

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Speaker 2: eight hundred and eight ten eighty is the number to call,

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Speaker 2: and we've got some great teas coming through on nine

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Speaker 2: to two ninety two.

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Speaker 5: I've just got a question. Do sick days sit as

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Speaker 5: a liability on a company like untaken Holidays do?

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Speaker 4: Yeah, that's a that's a good question. I'm not sure

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Speaker 4: that's that's more of an accounting question than a employment

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Speaker 4: there question, but I imagine it would sit there because

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Speaker 4: they can use it.

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Speaker 7: Yeah.

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Speaker 4: Of course it doesn't get paid out if the employee leaves, Yeah,

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Speaker 4: unlike annual leave.

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Speaker 5: Yeah, which makes sense.

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Speaker 2: Yeah right, you all right, Okay, we're going to take

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Speaker 2: a quick break, but when we come back, plenty more

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Speaker 2: questions for Gareth. If you want to get in, you're

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Speaker 2: more than welcome. Oh one hundred and eighty ten eighty, Jenny,

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Speaker 2: how are you good?

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Speaker 7: Afternoon? Fine? Thank you. I just wanted to make an

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Speaker 7: inquiry about retirement. I've got long service leaves which is due,

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Speaker 7: and I've got annually which will be paid out. But

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Speaker 7: mine ill is saying that they won't pay out long

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Speaker 7: service leaves at retirement, that it has to be used

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Speaker 7: up prior to that. Is that correct?

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Speaker 4: Great question, Jenny. Long service leave is something that is

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Speaker 4: negotiated between the parties and should be recorded in a

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Speaker 4: policy or in your employment agreement. It wouldn't surprise me

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Speaker 4: if one of the conditions is that you need to

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Speaker 4: take the leave and it's not paid out to you.

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Speaker 4: It would be unusual for an employer to agree to

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Speaker 4: pay that out to you when you leave.

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Speaker 7: Right, Okay, I'll go back to the contract.

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Speaker 3: Thank you for that, Thank god, Thank you very much, Jenny.

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Speaker 5: This is an interesting one. On nine ten, nine two.

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Speaker 5: I'm working for a company as an in house painter.

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Speaker 5: Want to start my own company? Can I use pictures

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Speaker 5: of my work on a website. If it's not obvious

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Speaker 5: it's from the current employer, cropped pictures and such.

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Speaker 4: I see a lot of red flags and dangerous. Obviously

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Speaker 4: this person has some doubts about whether this would be appropriate. Yeah,

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Speaker 4: and I would agree with that, you know what I say,

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Speaker 4: if in doubt, don't. I think this is one of

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Speaker 4: those cases because if your employer finds out, it's likely

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Speaker 4: to be a problem.

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Speaker 3: Yeah, very dangerous.

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Speaker 5: So it's clear that they know it's wrong because they're

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Speaker 5: cropping the images. So really you're asking, can I get

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Speaker 5: away with this thing that I know I'm not allowed

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Speaker 5: to do?

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Speaker 7: Yeah?

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Speaker 4: If my friend wants to post these pictures.

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Speaker 3: Yeah, yeah, spot on.

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Speaker 2: This is good takes as well, Gareth, Hi, Should staff

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Speaker 2: be advised that a security camera in our lunch room

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Speaker 2: records video and audio during work hours? Is that an

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Speaker 2: invasion of privacy? Can I do anything about that?

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Speaker 4: Oh? This is fantastic. It really depends on why the

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Speaker 4: camera has been installed. If it's too if there've been

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Speaker 4: a number of thefts and they are trying to catch

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Speaker 4: the thief, then it would really defeat the purpose to

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Speaker 4: tell everybody that they've installed a camera. Of course, if

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Speaker 4: it's just a general health and safety camera, then there

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Speaker 4: should be notices and the staff should be told about it.

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Speaker 4: It's also pretty unusual for a camera in those circumstances

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Speaker 4: to record audio, and that's something that Yeah, I think

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Speaker 4: this person could definitely raise with the employer because that

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Speaker 4: is getting to the point where arguably it is a

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Speaker 4: breach of privacy.

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Speaker 5: Yeah, audio seems too much, right because that seems like

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Speaker 5: you're trying to listen to what people are saying.

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Speaker 4: YEA, why are you recording that? Why do you need

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Speaker 4: to Yeah?

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Speaker 2: Just super quick, Gareth, are you allowed to see that video?

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Speaker 2: If you know it's been recorded and you say, hey,

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Speaker 2: I just want to see some of that footage?

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Speaker 3: Have you got a right to do that?

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Speaker 4: And it depends. If the footage is just of you,

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Speaker 4: I think you've got a very good case to ask

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Speaker 4: for access to it. Of course, if it's you and

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Speaker 4: a bunch of other people, you know, you could be

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Speaker 4: breaching their privacy. I guess it depends. If it's in

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Speaker 4: a lunch room, is there an expectation of privacy? Most

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Speaker 4: probably not if it's a changing room, very different story.

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Speaker 3: Yeah, very good.

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Speaker 6: I'll tell it.

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Speaker 5: Where I work, these cameras and mix just right in

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Speaker 5: my face. It's blazing.

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Speaker 4: That's outrageous.

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Speaker 3: Dave. How are you?

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Speaker 7: Yeah? Good things tell you boys?

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Speaker 3: Yeah, very good. We've got Gareth standing by ready for

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Speaker 3: your question.

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Speaker 6: Okay, I'm a contractor been employed for four years at

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Speaker 6: one place.

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Speaker 4: I'll stop you right there, Dave. You can't be a

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Speaker 4: contractor and be employed. You're either a contractor and you

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Speaker 4: are contracted, or you're an employee and you're employed.

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Speaker 6: Okay, I'm a contractor and I'm contracted to the same place.

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Speaker 3: For four years.

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Speaker 6: Yep. So is there a limit by law? That is

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Speaker 6: that the maximum that you can work at a place

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Speaker 6: before you get seened as the feminine employee?

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Speaker 4: No, No, there isn't. It really comes down to whether

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Speaker 4: you're actually a contractor or not, and that depends on

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Speaker 4: things different to how long you've been there. Of course,

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Speaker 4: if you've been there for four years, you may well

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Speaker 4: have been incorporated into the company, integrated into the business,

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Speaker 4: and that is one of the factors that may point

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Speaker 4: towards you being an employee. The courts look at it

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Speaker 4: and they say, are you truly in business on your

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Speaker 4: own account? And a lot of people who have a

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Speaker 4: contracting agreement rather than an employment agreement and get paid

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Speaker 4: like a contractor, aren't actually running their own business, right Okay?

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Speaker 5: See So Gareth Abnore is an employment, workplace and information

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Speaker 5: expert and director of abbot nor abbot Nor Employment Law.

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Speaker 5: Sorry but we've had so many calls and so many

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Speaker 5: texts now full lines and we haven't been able to

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Speaker 5: get to all of them, so big apologies to everyone.

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Speaker 5: Next time we have you on, Gareth, we're gonna have

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Speaker 5: to have you on for an hour. Good if you've

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Speaker 5: got the time, because I feel bad how all these

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Speaker 5: people we haven't got to.

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Speaker 2: Yeah, so much feedback, but Gareth, thank you very much

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Speaker 2: as always, really appreciate it, and we'll catch you again

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Speaker 2: in a month.

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Speaker 4: Sounds good. Thanks guys.

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Speaker 2: That is Gareth Abdenall from Abdenall Employment Law if you

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Speaker 2: want to check out his website Abdenorlaw dot en zed

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Speaker 2: And I've got to do this part. The content of

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Speaker 2: the segment is general in nature and is not legal advice.

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Speaker 2: Any information discussed is not intended to be a substitute

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Speaker 2: for obtaining specific professional advice and should not be relied

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Speaker 2: upon as such. And that is us for today. What

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Speaker 2: a fantastic show.

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Speaker 5: Yeah, well until tomorrow. If it smells okay, eat it.

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Speaker 5: And if it's slimy, wash it and they need it.

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Speaker 2: Yeah, good advice. What are you going to start with?

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Speaker 2: Surely the lamb grenade? Yeah, definitely chuck it all on

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Speaker 2: the barbie at once. I read to Tomahawk. Yeah, yeah,

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Speaker 2: chuck it all on the barbie. No sniff test, get

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Speaker 2: into it.

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Speaker 5: Roll the guys a life exactly, exactly worse that could happen.

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Speaker 2: And thank you very much for everybody who phoned and

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Speaker 2: called today and also all your text and as we mentioned,

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Speaker 2: we're sorry we couldn't get all of your questions to Gareth.

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Speaker 2: Hopefully we'll get him in for an hour next time

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Speaker 2: he is here, but plenty of questions that we'll put

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Speaker 2: on the bank for next time.

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Speaker 1: For more from News Talks ed B, listen live on

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Speaker 1: air or online, and keep our shows with you wherever

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Speaker 1: you go with our podcasts on iHeartRadio