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Speaker 1: You're listening to a podcast from News Talk sed B.

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Speaker 1: Follow this and our wide range of podcast now on iHeartRadio.

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Speaker 2: Gareth Abdnor is an employment we're playing an information expert

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Speaker 2: and director of abdenaor employment Law. He joins us once

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Speaker 2: a month as part of our Ask the Expert series

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Speaker 2: to answer listener questions and is back with us live

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Speaker 2: from our christ Studio.

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Speaker 3: Get a Gareth good, Hey, guys, how you doing so?

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Speaker 4: One hundred eighty ten eighty. If you've got an employment

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Speaker 4: related question for Gareth Tyler, you've got a text there. Yes,

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Speaker 4: so Hi.

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Speaker 2: If your contracts say pay reviews every year, Gareth, does

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Speaker 2: employer need to abide by this? Had no pay review

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Speaker 2: for four years? Please advise?

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Speaker 3: Yeah. This is one that comes up all the time

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Speaker 3: because most employment agreements have this provision in it and

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Speaker 3: most employers forget about them. There is an argument that

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Speaker 3: if you don't remind your employer, it's a little bit

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Speaker 3: rich to say, well I haven't had one, because all

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Speaker 3: you need to do is ask. But yes, technically, if

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Speaker 3: it's in your agreement, it should happen. Of course, a

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Speaker 3: pay review doesn't mean you get a pay increase.

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Speaker 4: Unfortunately, I always think about that. It's a strange thing

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Speaker 4: in contracts when they push for a pay review, because

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Speaker 4: what does that actually mean that you're forcing them to

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Speaker 4: sit down and talk about your pay but it's not

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Speaker 4: binding at all?

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Speaker 3: Well exactly, I mean they look at it and who knows,

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Speaker 3: they may actually go, well, you know, we've looked at

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Speaker 3: it and we're not that happy with what you're producing.

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Speaker 3: We don't think it's worth what you're getting paid.

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Speaker 4: Also, the pay review, can that go backwards?

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Speaker 3: Well, they can't reduce your pay. They could look at

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Speaker 3: performance managing you.

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Speaker 2: Yeah, yeah, reducing pay. I mean that would that would

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Speaker 2: send a message, wouldn't it. Actually, you can't do that

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Speaker 2: by by.

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Speaker 4: Legislation to my pay review. If that's the case.

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Speaker 2: Yeah, eighty is the number to call. You've got a

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Speaker 2: question for Gareth. Now is your opportunity. This text just

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Speaker 2: came through in the last couple of minutes. Gareth sees,

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Speaker 2: my daughter has just broken her shoulder and had an

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Speaker 2: operation and she was due to start work at the

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Speaker 2: end of the month. Can she claim acc from her

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Speaker 2: new job?

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Speaker 4: Oh?

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Speaker 2: Chep is that's a curly one.

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Speaker 3: Yeah, so she hasn't actually started the new job yet.

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Speaker 2: It appears she hasn't. No, so I'll just read that again.

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Speaker 2: She was due to start work at the end of

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Speaker 2: the month, right, but she at appears she hasn't started yet.

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Speaker 3: Okay, Yeah, I'm not sure if she's if she if

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Speaker 3: she's still unfit to work and her new job starts potentially,

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Speaker 3: but that's something that I'd have to sit down and

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Speaker 3: look into. ACC is a tangled web.

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Speaker 4: So hang on, un So you've got you can't work

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Speaker 4: at one job, and that goes on to your next job,

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Speaker 4: and you still can't work at that job.

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Speaker 3: It's a bit it's a bit weird. I have to say.

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Speaker 3: I think we need more information.

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Speaker 2: Yeah, it doesn't sound right from the you know, it

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Speaker 2: sounds unfear for the employer that this person hasn't started yet. Yes,

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Speaker 2: they've signed them on to the job, but then they

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Speaker 2: have to cough up? Was it eighty percent of this elf?

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Speaker 3: I would be surprised if the new employer had to

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Speaker 3: pay anything. But ACC may cover this person.

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Speaker 4: For a while, right, Oh, eight one hundred and eighty

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Speaker 4: ten eighty. You've got a question for Gareth on employment

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Speaker 4: workplace problems. Garth, Welcome to the show. Your question for

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Speaker 4: Gareth Hi, Gareth.

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Speaker 5: My question is that I'm in sales, and when I

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Speaker 5: signed the contract with the employee, they advertised a job

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Speaker 5: that obviously with on target earning. When I took the role,

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Speaker 5: they don't have any stop to meet the on time

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Speaker 5: earnings or the commission structure attached. What can I do

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Speaker 5: about that?

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Speaker 3: Well, first step, as I always say to people, raise

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Speaker 3: it with your employer. Say hey, this is this is

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Speaker 3: my understanding, this is what we agreed to. I'm now

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Speaker 3: being prevented from achieving those targets because of things outside

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Speaker 3: of my control. Where do we go from here? They

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Speaker 3: have to engage with you in good faith and see

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Speaker 3: if you can come to some sort of arrangement. If

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Speaker 3: you can't, you've potentially got grounds for acclaim. But that's

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Speaker 3: obviously going to be burning some bridges. So see if

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Speaker 3: you can come to an arrangement with your employer. First,

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Speaker 3: it sounds like it's not your fault. You can't do

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Speaker 3: anything about it if they don't have the stock, and

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Speaker 3: they'd be pretty unreasonable not to accept that.

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Speaker 6: Yeah, brilliant, Thank you very much.

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Speaker 2: Good luckily, good luck Yeah, great question. Oh, eight hundred

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Speaker 2: and eighty ten eighty is the number to call if

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Speaker 2: you want to tax through your question. Nine two nine

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Speaker 2: two is the number will place a few messages shortly.

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Speaker 4: Okay, so we do one more text for the message

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Speaker 4: for that. How long can an employer withhold final pay

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Speaker 4: pending return of property and final paperwork being completed. That

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Speaker 4: seems like there's a bit of a story under that.

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Speaker 3: Why aren't you returning the company property? I think that's

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Speaker 3: the real question there. Yeah, this is one of those

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Speaker 3: situations where in a lot of employment agreements, the employee

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Speaker 3: agrees that our final pay can be withheld until certain

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Speaker 3: items are returned. Of course, the legal position is a

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Speaker 3: little bit more tricky than that, and so yes, we

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Speaker 3: need more information. But if you hold company property in

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Speaker 3: you're not giving it back. Maybe the employers d titled

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Speaker 3: to withhold pay. Whether whether that's strictly legal or not,

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Speaker 3: it's another story.

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Speaker 4: It sounds like a dangerous standoff right there.

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Speaker 3: It does.

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Speaker 2: Someone's got to make a move. That is, someone's going

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Speaker 2: to take a shot way or the other.

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Speaker 4: I'd return the property, yeah, exactly.

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Speaker 3: It's amazing how some people get awfully attached to their

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Speaker 3: work uniform for a place that they don't work it anymore.

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Speaker 2: Yeah, might even be a work car. I mean, that's

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Speaker 2: something you want to give back.

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Speaker 4: Oh one hundred, I'm never giving back the stapler that

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Speaker 4: I took home the other day.

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Speaker 2: That is a very nice statement. I've got to say.

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Speaker 2: Eight one hundred and eighty ten eighty is the number

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Speaker 2: to call. We are joined by Gareth abden Or. He's

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Speaker 2: an employment, workplace and information expert and director of Abdenal

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Speaker 2: Employment Law. He has taken your questions you've got a

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Speaker 2: problem in the workplace. He's the man to chat to

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Speaker 2: if you're an employer that needs a bit of advice.

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Speaker 2: Now's your opportunity. Oh, eight hundred eighty ten eighty Kevin,

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Speaker 2: what have you.

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Speaker 4: Got for Gareth?

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Speaker 6: I was full time work, was involved in the little

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Speaker 6: of an accident pretty much. I had an excellent of

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Speaker 6: the work track. I got put from full time to

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Speaker 6: casule because no truck, no work. I'm trying to move

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Speaker 6: into another job. Am I appliach by the other employer?

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Speaker 6: Still stay with them? Or can I move into another

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Speaker 6: job with another employer?

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Speaker 3: Yeah? And unless there's some sort of restriction medically on

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Speaker 3: the work you can do. I'm not aware of any

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Speaker 3: restriction that would prevent you from applying to move to

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Speaker 3: a new employer.

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Speaker 6: I just thought it might be obliged with the contract

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Speaker 6: that I was put on, with a casual contract, whether

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Speaker 6: I still go back to them, or whether I could

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Speaker 6: move into another full time job with somebody else.

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Speaker 3: Yeah, I mean, if if you're truly on a casual contract.

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Speaker 6: Well, it wasn't the until the war call was flex

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Speaker 6: or kids, and then I possibly moved back into a

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Speaker 6: full time employment. But it's already been four months and

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Speaker 6: I'm not too four whether I move into some employment

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Speaker 6: at gable, whether I stay with the current employer or not,

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Speaker 6: so I have any illegal ground move on.

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Speaker 3: Or I mean, it's pretty unusual for you not to

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Speaker 3: be able to resign from your employment and move to

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Speaker 3: a new employer. There may be a notice period that

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Speaker 3: you have to give, and so I would look at

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Speaker 3: the documentation that you've got, but I would be very

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Speaker 3: surprised if you can't resign and move to a new job.

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Speaker 3: Check your contract, and that's the starting point.

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Speaker 4: Thank you for you. Call Kevin this Texas says I'm

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Speaker 4: in sales. What can I do if I'm being pressured

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Speaker 4: to bring in sales as if it's my fault? When

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Speaker 4: it doesn't happen, but I'm doing my job and logging

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Speaker 4: all my visits. Problem is our price is crap against competitors,

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Speaker 4: and we have no incentives, incentives or promo stuff as

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Speaker 4: your product crap as well.

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Speaker 3: It doesn't sound like you've got great faith or the

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Speaker 3: offering that makes it.

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Speaker 4: Doesn't it scrub up your CV?

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Speaker 6: Maybe?

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Speaker 7: Yes?

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Speaker 3: Yeah, totally. I mean this is some thing that happens

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Speaker 3: all the time. If you're doing your best and you're

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Speaker 3: still not making the sales, you need to communicate that

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Speaker 3: to your employer. It may be that the expectations are unreasonable.

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Speaker 3: Of course, every time I see someone that is not

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Speaker 3: making sales, it's not their fault.

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Speaker 2: Yeah, this is a great text. Kday Gareth Tyler and

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Speaker 2: Triple Story.

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Speaker 7: Matt.

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Speaker 2: If I have a contract where I have a transport operator,

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Speaker 2: I have been asked to be on the books as

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Speaker 2: an employee, but they won't allow it. But in my

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Speaker 2: contract as a contractor, I cannot do work anywhere else.

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Speaker 2: What is the law in regards to this?

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Speaker 7: Yeah?

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Speaker 3: I wish I could sum that up in a nice SoundBite,

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Speaker 3: but it's quite a complicated thing. Essentially, it comes down

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Speaker 3: to are you in business on your own account. Are

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Speaker 3: you running your own business? Are you actually a contractor?

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Speaker 3: If not, there's a very strong likelihood that you're actually anmployee.

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Speaker 3: Often people try and set things up so that the

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Speaker 3: worker is a contractor. There are benefits for the worker

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Speaker 3: and for the business, but often this is actually employment

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Speaker 3: in disguise.

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Speaker 2: So quite often in that situation, does it come down.

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Speaker 2: Are they quite often fixed term contracts as a contractor

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Speaker 2: that you cannot do work for anybody else during that

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Speaker 2: time period or is that a step further even still?

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Speaker 3: Yeah, once once you're preventing a worker from working for

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Speaker 3: someone else, Often they're not a contractor, because that's quite

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Speaker 3: an unusual thing. If they are actually running their own business.

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Speaker 3: Generally they are actually an employee and you're all pretending

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Speaker 3: that they are a contractor. That's all fine and dandy

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Speaker 3: while while it lasts and everybody is happy, but as

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Speaker 3: soon as it goes pear shaped, it's generally the company

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Speaker 3: that's running the risk.

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Speaker 4: Yeah, very good, Jason, Your question for Gareth.

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Speaker 8: Yeah, goody guys.

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Speaker 7: We just had our financial year come to an end

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Speaker 7: in April. But because we own a business overseas and

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Speaker 7: their financial year is July, two months after our financial year,

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Speaker 7: we were notified that our financial year was changing, so

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Speaker 7: we're due bonuses, etc. Which was all wrapped up in

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Speaker 7: April until we received this email in May saying that

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Speaker 7: the financial year was now changing. So I don't know

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Speaker 7: whether to expect fifteen months as a bonus or what's

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Speaker 7: really happening from there.

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Speaker 3: Yeah, that's a messy situation for sure. At the risk

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Speaker 3: of being repetitive, you should really be asking your employer that.

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Speaker 3: But if it's clear that you're entitled to a bonus

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Speaker 3: based on the original financial year, that would be the

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Speaker 3: starting point. They can't usually just change that without getting

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Speaker 3: agreement from you, and certainly just changing the financial year,

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Speaker 3: if that has a negative consequence for you, you may

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Speaker 3: have grounds for acclaim, So first engage with your employer,

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Speaker 3: ask them to clarify. I think that's a pretty legitimate

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Speaker 3: thing to ask.

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Speaker 4: Guys, can you give me the sale guy's number? I

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Speaker 4: think we're working for the same company. A lot of

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Speaker 4: people in that same situation where they're training to sell

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Speaker 4: a crap forduct for too much and being expected to

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Speaker 4: do miracles and the sales.

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Speaker 2: Find another job here. One hundred and eighty eight is

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Speaker 2: the number to call Chris your question.

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Speaker 8: Yes, I work for a government agency and I got

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Speaker 8: my final pay. It was was a one month's notice clause. However,

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Speaker 8: didn't give them one month, but they owed it to

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Speaker 8: me with all that and all the other entitlements that

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Speaker 8: leave stuff. If they partially paid you one lot of

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Speaker 8: leave that was owed to you. But oh, do you

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Speaker 8: other entitlements like well which there was, or the or

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Speaker 8: the remainder leave. Do they have to text you again

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Speaker 8: for the for the remainder leave or other entitlements then

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Speaker 8: sing income text and stuff? You know, you know what

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Speaker 8: I'm talking about.

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Speaker 3: Yeah, I think I know where you're coming from. What

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Speaker 3: people are often surprised with their final pay is that

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Speaker 3: when you get the slump sum payment, the tax consequences

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Speaker 3: are often a bit of a negative surprise, and you

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Speaker 3: do end up paying more tax than you anticipate. Of course,

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Speaker 3: at the end of the tax year when you do

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Speaker 3: your TEX return, that often gets washed up and any

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Speaker 3: amount that you've paid over what you expected gets refunded

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Speaker 3: to you. So it's not unusual to get taxed more

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Speaker 3: than you expect in the final pay because it's such

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Speaker 3: a big payment. It's not your regular fortnightly or weekly

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Speaker 3: or monthly pay.

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Speaker 4: All right, that helps, Chris Simon, you'll be our last call.

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Speaker 4: What's your question for? Gareth?

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Speaker 9: Gooday, guys, how are you very good? Jeth? I'm currently

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Speaker 9: on a salary. I'm contracted to forty hours a week,

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Speaker 9: A couple of days, a couple of weeks ago I

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Speaker 9: worked a weekend. Would I be entitled to and the holidays,

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Speaker 9: last day and loop?

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Speaker 3: No, not not unless there's something in your agreement that

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Speaker 3: specifically provides for that. It's generally accepted that if you're

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Speaker 3: paid salary from time to time, you will have to

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Speaker 3: work extra hours, and it really comes down to whether

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Speaker 3: that's considered reasonable or not. If you work one weekend

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Speaker 3: over a twelve month period, it's likely that you're expected

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Speaker 3: to take that on the chin. If you're working one

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Speaker 3: weekend every single month in addition to your normal hours,

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Speaker 3: then I would certainly be taking that up with the employer.

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Speaker 6: Okay, well that sucks, Yeah, it does.

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Speaker 3: Although for most people, the salary does build in a

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Speaker 3: little bit of fat, a little bit of cushion, and

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Speaker 3: so you do get more than if you were just

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Speaker 3: getting paid an hourly rate. And it's on the basis

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Speaker 3: that from time to time you will have to work

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Speaker 3: a bit extra.

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Speaker 4: All right, that helps Simon.

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Speaker 2: Yeah, good luck with that, Gareth. That is all the

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Speaker 2: time we have. Man, it goes fast. Thank you very much. Again,

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Speaker 2: we'll catching about a month's time. We've got hundreds of

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Speaker 2: text lined up ready to go. But stay warm down there.

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Speaker 3: I will do. Thanks guys.

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Speaker 4: Lovely scarf you've got on there on a video.

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Speaker 2: Yeah you got the skis weaked up? How the mountains

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Speaker 2: looking down there?

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Speaker 3: I'll tell you what this snow is looking beautiful.

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Speaker 2: Lucky bugger, you lucky bugger. Yeah, all right mate, we're

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Speaker 2: seeing a better month's time. That is Gareth abdenor Employment

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Speaker 2: Workplace an information expert. If you want to get a

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Speaker 2: hold of them, just go to ab donorlaw dot z.

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Speaker 2: And just a reminder, the content of the segment is

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Speaker 2: general in nature and is not legal advice. Any information

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Speaker 2: discussed is not intended to be a substitute for obtaining

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Speaker 2: specific professional advice and shouldn't be relied upon as such.

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Speaker 2: So if you're lawyer, you won't get us there.

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Speaker 1: For more from news Talk, said b listen live on

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