Max Whitehead: How do you ask for a raise?

Tim Beveridge is joined by employment relations practitioner Max Whitehead to answer all your employment questions. 

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Episode Transcript

Speaker 1 (00:05):
You're listening to the Weekend Collective podcast from news Talk,
said by.

Speaker 2 (00:12):
In the open classroom, why you sample of his sample
bas Wow Western class elms, Damn son.

Speaker 3 (00:51):
Manco and welcome back to the Weekend Collective. I did
let that music run a little bit long, but I thought,
now we're not a music station, but a little bit
of Jimmy Boards working class Man. I don't think there's
anyone out there who objected an extra four or eight
bars working class Man, because and we like to tie

(01:12):
in a little bit of music into our themes. And
we even managed to tie him when we interviewed Todd McLay.
My producer found a song about hunting and fishing because
Todd McLay is the Minister for Hunting and fishing, and
I think he's just added it to his playlist. But anyway,
this is a clue as to who my guest is
for Smart Money, we want your cause, by the way,
I eight hundred and eighty ten eighty or text nine

(01:32):
nine two if you have any questions as an employee
or as an employer, because my my guest in the
studio is an employment relations practitioner at the Whitehead Group.
He's no stranger to you all or to me, and
his name is Max Whitehead. Max.

Speaker 4 (01:49):
Good afternoon, Hey Tim are really good? Well what are welcome?
That's really cool? Thanks very much?

Speaker 3 (01:53):
Did I give you? It's a good Read's good for
a little bit of Jimmy.

Speaker 4 (01:56):
But I love the music. It's hyped me up as
well as you.

Speaker 3 (01:59):
By the way, Yeah, working class man? Are you a
working class man?

Speaker 5 (02:04):
It?

Speaker 4 (02:08):
Well? Yeah, I did an apprenticeship as a bato mechanic
and I got my hands dirty. I didn't like it.
Really literally, you didn't like having my hands dirty. Four
and a half years I did an apprenticeship and they
didn't like it. My hand's dirty.

Speaker 3 (02:18):
Actually, that's an interesting is it a different kind of dirtiness,
Like if you've been painting or if you've been a gardener.
There's different types of dirt. Oil. Actually, if you're a mechanic,
I imagine that would.

Speaker 4 (02:28):
Be something that we used to clean all the parts
and kerosene and whatever. The oil was everywhere and you
get under a car they were dripping with oil in
those good old days way.

Speaker 3 (02:36):
Back, and oh there we go. So he's not a
working class man, Tyra, I find another song.

Speaker 6 (02:44):
To him.

Speaker 3 (02:44):
I'm just kidding us.

Speaker 4 (02:46):
Clerical workers do work.

Speaker 3 (02:49):
I've been working. I've been doing my own DIY plastering
and painting.

Speaker 4 (02:52):
Look at your hands, I mean they're just pure white
like silk.

Speaker 3 (02:56):
Well that bit of white there is actually paint, I
should point out, it's only a tiny fleck. Anyway, Hey, look,
we want your cause if you have a a question
around employment or your position, but also it might be
a tactical question about how to manage your relationship within
the workplace. Because there's one thing to have rules and
this is what you can't do, this is what you

(03:17):
can do. But there's also another thing about pragmatism and
managing the relationship that you have, either as an employer
or as an employee. In fact, that is a big
part of advice that you would probably give to people
because if you're baxing against the wall, okay, you're in
a legal situation, you're going to go with it. But
often max with employees and employers, it's all about managing

(03:38):
that relationship sort of within and at the edges of
the rules.

Speaker 4 (03:42):
And one of the complaints I get all the time
right now is, hey, look, my workers just feel entitled.
They come to me and say I want this, I
want that, and they need this. Can you provide it
for me now? And by the way, I deserve it.

Speaker 3 (03:54):
Well, because one of the questions we've got about is
the whole thing about is it worth going above and beyond,
in other words, doing things that are not strictly in
accordance with your job title. It might even be behind
for half an hour, staying behind for an hour to
finish something off. And that's a waxing and waning situation,
isn't it. Because if you're in a when businesses are
finding it tough and you want your employer's company to survive,

(04:19):
sometimes people do go the extra mile. But then with
the employer at some stage there's a quid pro quo,
isn't that?

Speaker 4 (04:24):
Oh yeah, Now, look that's really an important issue here
because I mean, it works very much with employees. You
give them a benefit and which is over and above.
You know, the employee gives them a benefit, they'll consider
it there right after a few months, and so it's
the same thing happens the other way around. So if
you're giving their boss or bit the extra, then you
pull it back the boss has miffed, what the hell's

(04:44):
going on?

Speaker 3 (04:45):
This is one of the questions we've got for you.
Have you gone above and beyond? And if you did,
how long did you do it before you thought? Okay,
hang on a minute. I'm giving a bit extra here.
I think it's time it was recognized because there is that.
It's an ebb and the flow. There's a waxing and
a waning of goodwill. So is it worth going above
and beyond? And if it is, what do you expect

(05:07):
and return? Do you actually spell that out? When do
you spell it out? Do you keep quiet and just
hope for you know that somehow the hard work will
pay off. Give us a call. I wait, one hundred
eighty ten eighty. Any other questions you've got around employment,
Max is here to help. You can contact him also
at the white Head group. He's easy to find. Look
you just look up Max Whitehead, type of umployment and
he's all over it. I mean not all over, not

(05:31):
all over the place either. That sounds like we around them.

Speaker 4 (05:33):
When you people are around In my place, I lie
or over the disk. I mean that's how I do it.
Lean there.

Speaker 3 (05:38):
That sounds like an HR problem, But I'll talk about
later anyway. Just right, we got some calls you read
or roll. Shall we get into it?

Speaker 4 (05:46):
Bring it on, Chris?

Speaker 3 (05:47):
Hello, Hi Chris, Yeah, Hi.

Speaker 6 (05:50):
Good evening. Does some inquiry. I wait for a government
agency down here, and I just want to ask if
I if it's a public public holiday and I was
rosted on the day I was off because we don't
meet public holiday because Monday was am I still paid

(06:13):
for that day because you know how you get time
and a half or a day in lou if you've
worked a day on the public holiday. But because I
wasn't on that day, do I still get paid for
that day I was posted to get paid?

Speaker 4 (06:30):
Yeah, Chris. It's a very common question because I guarantee
you paid by salary and so quite often the employers
will require people to come in on a public holiday
and think, well their salary covers that, Well it doesn't.
It doesn't. So the answer to your question, Chris, yes,
you are entitled the time and a half for the
extra for work in that public holiday and a day

(06:51):
in lou if it's normally your day off, that's what
you're entitled. You haven't had your public holiday, and that's
what the Act provides for you.

Speaker 6 (06:58):
It's all yours okay, and that's one thing. If I've
only been there a short time, in the same coming
to Christmas holidays for four weeks holidays because okay, we
don't we're not open. Also on the public holidays.

Speaker 7 (07:15):
That we.

Speaker 6 (07:18):
Well, we don't work those. So I don't have any
annual leave. I don't get any annually because I haven't
been there long enough.

Speaker 4 (07:29):
So what happens, Chris, is such a In the Holidays Act,
there's a section talks about shutdown periods. So an employer
is entitled to have a shutdown period provided they've given
you fourteen days notice. And then, unfortunately for you, you
won't qualify to get paid the full amount. Now, since
you work for a government department, they probably will give

(07:51):
you full amount. I don't know, but their legal obligation
is only to pay you eight percent of your earnings
up to that date.

Speaker 3 (07:58):
I'm guessing they probably do cover.

Speaker 8 (08:00):
Right.

Speaker 4 (08:00):
Yeah, our government department stup, but most employers won't. Okay,
pretty harsh on you start.

Speaker 3 (08:07):
Good on your Chris, thanks for you call. Hey, by
the way, what is a nice diplomatic way? So you're
on a salary, and I imagine for a lot of
employers they're like, oh, they're on the salary, just pay
them and then ask them to do whatever I want.
So they've asked you to come on in a public
holiday and there's no discussion about it. You've just said,
obviously your own time to time and a half? How
do what's the best way to raise that? And a friendly,

(08:30):
non confrontational because you might have an employer who's thinking,
what do you mean you want to be paid extra?
How do you raise that?

Speaker 4 (08:38):
Well, the first thing you should do is check your
employment agroupment because if it doesn't say that you could
be required to attend work on a public holiday, you
can refuse to work that day. So you could say, no,
I'm not working Christmas day. I don't want to and
your contract doesn't say so, so I'm not contracted to
do that. But if it does, if it does require
you to do that, he said, if required, you've got
to attend on a public holiday and you're not very

(09:01):
happy about it, well you can raise it with your employer,
of course, and say to them, hey, is there anyone
else might be more interested in that day because it
is important for my family? Et cetera, et cetera, et cetera,
but it's all about as you started off before, to
the approach and do it in a manner saying, first off,
think of it from the employe's perspective. Someone's going to
work that day obviously, so is there someone else aboutable

(09:23):
that could do it? Would you like me, boss to
go and find someone else and could possibly do it.

Speaker 3 (09:29):
I think I've heard someone use the expression, look, I'd
love to, but I just can't do it. I'm sorry,
that's public holiday and I've got other commitments, and just
make it sound like you would if you could, but
you but you can't, and there's nothing's going to nothing's
going to change it. Or is that just fibbing? Should
you just say no?

Speaker 4 (09:48):
Well, if your boss could actually force you to, or
if you didn't, if it's written in your contract that
you could be working public holidays if required, and you
refuse to work it, you could be disciplined for that.
So that's the downside. Whether they would do it or not,
it's pretty harsh. Imagine Christmas Day. I mean I must
have met I was working in the norsea oil up

(10:09):
in Scotland and I volunteered to work Christmas Day, So why.

Speaker 3 (10:13):
Wouldn't you I've stuck on an oil rag in the
North Sea. Oh you are well, that sounds the very
working class man, or are you working an account.

Speaker 4 (10:21):
Well, I had nothing, I had no family back on shore.
I had nowhere to go. The pub did open, I
believe it lunchtime on Christmas Day, and that's where I
would have gone. That's probably only an oil rag. No, no, no,
when I'm on land. So that's why I volunteered. I
actually had to work an extra week for that guy
to go home be with his family, and I'm happy
with that. I was happy.

Speaker 3 (10:41):
Well, you probably got a bit of extra, bit of
a bonus.

Speaker 4 (10:43):
And then they put a few They put a bottle
of whiskey on.

Speaker 3 (10:47):
Did they Well, oh, we know maxis price. It's a
bottle of whisky. There we go. At seventeen past seventeen
past five, it's Saxon Moore calls Dean.

Speaker 9 (10:57):
Hello, Hey, Dean, this is quite a quick and hopefully
if I was to resign from my position today and
I have some accrued annual leave, can my employee.

Speaker 10 (11:15):
Make me take that leave in the time in my
notice period?

Speaker 4 (11:20):
Yep, it is, and it's an issue that it rises
quite often. But the requirement for an employee. They have
to give you fourteen days notice a when to take
your leave. So if it's if you've given a long
notice like two months, three months, you could be in trouble.
They could give you fourteen days notice to take leave
between those times.

Speaker 3 (11:39):
But if you only have to give two weeks notice
and you've got two weeks leave remaining, then that leave
is up your sleeve. There we go.

Speaker 4 (11:45):
Yeah, so fourteen days is the magic number thet.

Speaker 11 (11:50):
Okay, yes, I have you got four weeks.

Speaker 10 (11:51):
They can turn around and go, hey, listen, you know
we require you to take two weeks, but it's the
last two weeks of your four weeks notice. That's sort
of thing.

Speaker 4 (11:58):
You've got it, but they've got to give you the
two weeks notice.

Speaker 3 (12:01):
Have you given notice or.

Speaker 8 (12:05):
No?

Speaker 4 (12:05):
He's thinking about asking for a friend. Of course you
are listening.

Speaker 3 (12:16):
Okay, I believe you.

Speaker 4 (12:21):
Ask me that question all the time, just on behalf
of a friend. Mixed No, I mean fair enough.

Speaker 3 (12:25):
People are asking for friends, and we expect people to
ask for friends, especially if you've got a voice that's
really recognizable.

Speaker 4 (12:31):
But I don't think that I love that he actually
took it in good humor, didn't he.

Speaker 3 (12:37):
Well, I suddenly wondered if he was driving, if he
really had to go because something else?

Speaker 12 (12:40):
Was that?

Speaker 4 (12:40):
We laughing? Poor guy?

Speaker 3 (12:42):
Anyway, good sport, Right, let's carry on. Graham.

Speaker 4 (12:47):
Hello, Hey Graham, just inquiring about that.

Speaker 13 (12:51):
If you have an accident in the company vehicle, can
they make you pay the excess?

Speaker 4 (12:58):
Well, if you were grossly negligible, possibly, if, for example,
ter have a look, you were staggering around drunk and
you're not allowed to drink and drive, then you possibly
gram you you could be held glible.

Speaker 13 (13:12):
Yeah, if you're sober and just generally didn't fail to check,
look whatever and pull down and someone hit you, then
it's an accident, and yeah, we are we required to
pay an excess?

Speaker 4 (13:27):
Well, they could be arguable. It's a matter of negligence.
Your employer is supposed to cover you for any problems
that occur during the worktime. So if it was, for example,
a problem with the vehicle and that caused you to
get a ticket, then they should cover it. But Graham,
I think I think they could possibly hold you accountable.

(13:47):
I would push back on it. That's what I often
tell Like truck drivers, go, they took a wing mirror
off or which is probably five hundred bucks. But I
took a blinker light out out which is probably not
that much, and the boss wants me to pay for it.

Speaker 3 (14:01):
Actually, that is a That is a funny one, isn't
it Because if you I mean it meanings to have
an accident in a company vehicle and you wouldn't imagine
if you found out the excess for the company vehicles
was fifteen hundred bucks or something when you haven't signed
up for that. I mean, if you knew that, would
you take out your own insurance for I don't know,
I wouldn't want to be well.

Speaker 4 (14:20):
Actually, more and more of my advice is getting closer
to actually saying to employees, get insurance because you can
be held liable. You know, if you can personally be
held liable for all sorts of things in the workplace.
Your employer are supposed to dimnify you as the flash word,
but that's the word they use from any work related issues.
If they've instructed you, but you've gone off on your own,

(14:40):
use to your own initiative about something and it's turned
turkey on it, you could be in trouble.

Speaker 3 (14:45):
Have you had an accident gramm or are you just
asking for a friend.

Speaker 13 (14:48):
Yeah, I had an excellent and I'm going to be
asking me to pay the excess, which is about one
thousand dollars. And you know, people have excellents every day.
It's not through being well in all accident negligence because
shouldn't have had the next.

Speaker 3 (15:05):
One technically, But if you were, if you were driving
one hundred k and a fifty K area and had
an accident, you wouldn't have much of an argument. But
if you've simply it's a fifty to fifty thing, and.

Speaker 4 (15:14):
You said that, I mean your Graham, you said it
wasn't No, I just assume that, yeah.

Speaker 13 (15:19):
Yeah, failing a good way to someone and there was
an accident, So.

Speaker 4 (15:24):
Yes that pushback Graham and try the water. I think
that might be the best way to go. Try the water.
I mean, never go with them, see what happens, and
if you might want to get somebody to help you,
like myself or anyone else out there that could represent you.

Speaker 3 (15:42):
Yeah, that's that. Thanks for col Graham. That is actually
really interesting issue the liability of employees in the workplace,
because I guess we would all assume that you're covered
for things. If you're going about your business as an
employee and people make mistakes and employment, and you wouldn't
want to be found liable. I've got a text here
that this person's partner forgot to bring in the arm

(16:05):
on a truck, reversed it into the workshop and hit
the water mains and the place flooded. The arm was broken.
Cost twenty thousand dollars plus effects. I had to call
the boss at eleven PM, who was who wasn't happy.
I don't know how it turned out, but.

Speaker 4 (16:20):
You imagine those big trucks that put arms out, you know,
when they have a big hydraulic foot feet actually forget
to bring one of them, and it's not a good movie.

Speaker 3 (16:28):
I would imagine. I've callers from call some truck truck
drivers regularly on talk back, and the machinery they are
in charge of and the cargo they would have to
be indemnified, surely, because it's a hazard of the job
that there's the potential for something to go wrong, for
you to break at the wrong moment or you know.

Speaker 4 (16:47):
I was going to tell you, Tim, I think it's
important to listeners to hear this that many years ago.
This shocked me that a draft person did some chabby
work and eventually got fired for something else, and he
took a personal grievance and they turned around and sued
him for the chabby work, and the authority said, yep,
you owe the boss. Now, I think it was fourteen

(17:09):
thousand dollars.

Speaker 3 (17:10):
That's horrendic, that's I see.

Speaker 8 (17:13):
To me.

Speaker 3 (17:14):
That would have to be because that particular draft person
had done not just a slightly dodgy job, but negligently.
You know, there's scales of carelessness. Absolutely, there's mistakes that
get made there and then there's a flagrant disregard for standards.

Speaker 4 (17:28):
Well like employees. Maybe it's time to start thinking about
an employee insurance. You've got to protect yourself and in
this particular case, the judiciary upheld it and they've done
it before.

Speaker 3 (17:40):
Yeah, blimey, that is quite something. It is. We need
to take a break. We're gonna come back with more
calls and just attack. It's twenty four minutes past five.
News Talk said, be.

Speaker 2 (17:50):
Love me. You can see.

Speaker 9 (17:57):
Stand these.

Speaker 2 (18:02):
Jell cares.

Speaker 3 (18:17):
Yuess, Welcome back to the weekn Collective. This is a
smart money we're talking about employment. Actually, sure that's come
up in the conversations just about employee liability and what
mistakes that you might find. You actually have to write
a check out poor to your employer, which should you
have an insurance anyway. But we're taking calls about whether
you'll be an employer and an employer. My guess is
Max Whitehead from the white Head Group, and we've got

(18:38):
a bunch of calls and we're going to carry on
and just get straight into it. Neville High, Nevill, Hi.

Speaker 5 (18:45):
Good morning, afternoon. Just a question if a person's been
employed of twenty years plus with the same company doesn't
have an employment country, isn't it a contractor has never
been plaid holiday play which includes his commission?

Speaker 4 (19:00):
Wow? Ouch, If you can prove that you're an employee
in the well in twenty years of service, I'd say
you are. You can go for the retrospective back six
years for those holiday paid six fours to twenty four weeks.
That's six months pay. And there's a penalty should apply
to your employee for failing to give you a written
employment agreement.

Speaker 5 (19:21):
Right, that's not me as someone else?

Speaker 4 (19:23):
Are you doing it for a friend? We've got a
lot of it today that I mean, that's.

Speaker 3 (19:28):
So the commission that person's that your friend's working on.
Is it a commission based job not regular income?

Speaker 5 (19:35):
No, no, it's a salary plus commission.

Speaker 2 (19:39):
Oh wow?

Speaker 3 (19:40):
Oh hell and no, no holiday has been paid.

Speaker 5 (19:44):
All except just as normal standard weekly pay.

Speaker 4 (19:47):
Do you know, nevilla, Do they do consistent hours?

Speaker 5 (19:51):
Most definitely do. Wow, Well the normal Monday to Friday
and work you know, and yeah, work a day to friday.

Speaker 4 (19:59):
Yeah, yeah, well that's nevile. They'd say that they've got
that employe. Must be absolutely terrified because this employee you
could go after them and really cause some of the problems.

Speaker 3 (20:11):
Never can I just ask how? And so the time
that was so, whenever that employee took time off, they
were not paid anything.

Speaker 5 (20:17):
Oh yeah, their basic salary.

Speaker 3 (20:22):
What are you wondering about.

Speaker 5 (20:25):
The whole day pay the commission? The whole day pay
from one understanding has to include your your weekly salary
including commission.

Speaker 3 (20:37):
You make sense, Yeah, okay, that's okay, that's well, that
is slowly So the question is you've been on a salary,
you get paid a holiday pay, but you're not getting
paid any percentage on the commission or any holiday pay
in relation to that. Can you claim that back. That
does sound a little different, Is it different? Map?

Speaker 4 (20:55):
It is different, a lot different. So basically they are
getting paid those salaries all the way through, so it'll
be their base rate. The question to me is do
they get their bonuses as well and the extra pay
on top And that's been an argument for years and
quite frankly no, I would say that they don't get that,
but it's arguable. So it depends on the details on
how this person is for into yours, what it is

(21:18):
they're actually getting commissioned on, and how they can actually.

Speaker 10 (21:21):
Get in it.

Speaker 5 (21:22):
They're actually getting commission on everything that's sold within the gum.

Speaker 4 (21:25):
May, so even if they don't sell it, they get
a commission based on it. Yes, see, the calculation for
holiday pay is the average or ordinary whatever is the greatest.
So yeah, so it could be argued that the average
is up there. So it's no matter what constitutes gross pay.
Now Brook van Belden's bringing in a new act because

(21:46):
this is such a big question that she's actually going
to put a new definition for what constitutes gross pay.

Speaker 3 (21:54):
Wow, okay, interesting, But I would say that if you
if it's we're talking serious money here, you'd want to
get a bit of advice on that.

Speaker 4 (22:01):
Yeah, it's not as bad as I thought.

Speaker 7 (22:02):
It was.

Speaker 5 (22:05):
Company where the staff have taken the company support and
one on that exact argument that I've just given you.

Speaker 3 (22:11):
Okay, Well that's that's the twenty years, that's that's that's
quite a big deal. Last six years retrospective, No, no,
six years. Yeah, that's right, okay, Okay, thanks guys.

Speaker 4 (22:24):
Do you know what to miss A big case. We're
a big timer. He had a bonus of over a
million dollars, you know, like this is a chief executive.
So when he left, they gave me his outstanding holiday pay.
He went back and said, no, I want all of
it because I want the million dollars to be built
into it.

Speaker 3 (22:41):
And did they went?

Speaker 4 (22:43):
Well, the Court of appeal for had to go the court.
The court said years. The Court of Appeal said.

Speaker 3 (22:50):
No, okay. I guess it depends on what grounds you
get the bonus. If it's for going above and beyond
delivering results above what you're expected, I would say, well, no,
you're leaving so bonus. But if it was something that
was simply a bonus paid for you doing the job,
that would be a stronger arguments. It's such a.

Speaker 4 (23:12):
Great You imagine how many people are on this. You
imagine every car yard, all the sales reps there, Imagine
in every any sale troop who gets paid incentivized.

Speaker 3 (23:22):
It is a big issue, right, We've got lots of
callers line up, so we're going to keep going on. Josh, Hello, Hey, Josh, Mex.

Speaker 10 (23:30):
Tim, Hey, I need to ask hey, listen, last involved
in being let go? We'll call it now. Throughout the process,
what actually happened was I was put through a disciplinary
process and I was sent home. And then what happened

(23:51):
after that is I engaged with the union and we
tried to mediate and where it went from there was
I basically had to resign in order not to.

Speaker 3 (24:05):
Sort of be.

Speaker 10 (24:06):
Blacklisted, if that makes sense. I resigned for personal reasons. However,
I was given what they call a practicing certificate. Have
you heard of one of those macs? So I was
given what they call a practicing certificate that was part

(24:26):
of the agreement. But I was also told that I'm
not able to get any referees from this position. When
they told me that, I soon made contact with other people,
other senior colleagues that I'd worked with and asked them
for reference, which they were happy to give. Meanwhile, what

(24:52):
actually happened in the background, The line manager who I
worked under went around and told these people they were
no longer allowed to offer a written or verbal reference
on my path. I'm just wondering, is that legal?

Speaker 3 (25:07):
That sounds weird? What are you allowed to say what
particular line of work? This is because practicing certificate sounds
like a professional qualification type of thing.

Speaker 10 (25:16):
Yeah, so it's healthcare.

Speaker 4 (25:18):
It's okay, I don't understand what it's.

Speaker 3 (25:22):
Yeah.

Speaker 10 (25:23):
So basically what I'm asking Max is a lot of
employers want more than two references. I've got plenty of
people that have vouched for me, but the company's saying
these people are legally not allowed to have a reference
for me on my behalf.

Speaker 4 (25:39):
Well, it depends that, Josh. If your union represented you,
I would hope if you did a settlement and said, look,
I'm prepared to resign because you were unhappy about something
I did, then there I would have thought your union
would have done a standard settlement agreement. The standard settlement
agreement should have had in there that there will be
no disparaging statements made about you.

Speaker 10 (26:02):
So they agreed with that, they said they can't speak
a negative word about me. However, they've blocked all my
previous team leaders and managers from being able to give
me a written or verbal reference.

Speaker 4 (26:15):
So then they are they are bad mouthing you, so
to interrupt you, Josh, but they are bad mouthing you
to the senior people in that organization. So I'd say
that you could probably challenge them and go back to
union and saying, look, they are disparaging my good name here.

Speaker 10 (26:31):
Well I tried that, Max, I did try that, and
the union set unfortunately signed on the dotted line saying
that you'd walk without anything but a practicing certificate. But
that's I think that's kind of no.

Speaker 4 (26:44):
I disagree. I think you ought to have a go
and I think you ought to file it with the
Employment Relations Authority and saying that there's been a breach
of selling here.

Speaker 3 (26:52):
I would also wonder if we've got all the information
that I would be I'll throw this to you, Max.
It's one thing to stop an employee writing something, so
one of Josh's colin, it's one thing for his employer
to say you are not to give a reference on
our behalf. But I would have thought, there's nothing for

(27:13):
them to say. This is a job, this is my job.
I've worked with this person and I vouched for them personally.
Who can stop you doing that? That seems a bit bizarre.

Speaker 4 (27:23):
Oh, they probably got instructions and they're terrified. I mean,
look at government departments and then Josh would be so
they won't step out of line if the boss says no.
But I think it's worthy worth having to go, Josh,
and so check your Section one four nine settlement agreement
and you're well going to contact me tomorrow and let
me have a look at it for you.

Speaker 10 (27:43):
Okay, yeah, Max, Max, I'll just be real quick. I
was going to actually try and acquire your your skills. However,
I didn't want to ship fight. I wanted to walk
away peacefully.

Speaker 3 (27:57):
Yeah, okay, well, Josh, look, go and look up Max's
look at Max's contact details on the website hundred ten eighty.
And meanwhile, for anyone who wants to call the show
and have a chat with Max right now, we'll be
back in just the tickets coming up to twenty two
minutes to sick. Yes, welcome back the Weekend Collective. This

(28:25):
is smart money. My guess is Max Whitehead. We're in
talking employment. We got cause lined up, so we're just
going to keep it moving if you can, if you're listening,
if we can try and be a little concise with
your summary review situation, because we're going to try and
get through a few more calls before we wrap it up,
because time is upon us. It's nineteen minutes to six.
Tracy High.

Speaker 4 (28:43):
Hey, Tracy, I.

Speaker 14 (28:45):
Know I've got a shoe with my employee that you
know how you get your standard holidays for four weeks? Yea,
Then they're telling us once you use your four weeks,
you can start using your crude leave. I thought that,
I think I thought that a crude leave is what

(29:06):
you earn for the whole year, for your full week
and your holiday. Didn't get what I mean.

Speaker 4 (29:13):
But you can carry it over, so that's probably what
they mean. Yeah, accrudely does mean exactly that, Tracy. So
but you may have even accrued some from last year
which is still there, and so you had one more
week from last year. You can take all that up,
use it up, and then start chopping into your accrudely.

(29:36):
If your boss is happy for you to do.

Speaker 14 (29:38):
That, you can do that, Okay, So even if you
even if you have no holidays left and you know
that you've used up your full weeks holiday, and every
year you've told you you have to use your full weeks,
it say isn't in our contract that you have to
use full weeks within the twelve months.

Speaker 4 (29:59):
So usually, Tracy, it's the first year you don't. You're
not allowed to take holidays the first twelve and then
thereafter you you're entitled to four weeks then and it
keeps accruing thereafter, so you've got piles of holidays start
after that point. Then they start accruing, and so they're
going to let you grab some of those holidays as well.

Speaker 14 (30:19):
Oh okay, because the way that they explained it is
different to the way that I think it is.

Speaker 3 (30:26):
Yeah, thanks Tracy, cheers, Okay, bye, bye, Joe, Hi, Hey, Joe.

Speaker 9 (30:33):
Hi.

Speaker 7 (30:35):
Just a quick one, a little bit like Nevil's one
that seventeen years no.

Speaker 8 (30:39):
Contrast, Wow, get paid basically an hourly rate retainer or
the year takes out my PA, ye takes out my kiwisaver.

Speaker 7 (30:49):
Are basically an employee, and then at the end of
the year.

Speaker 8 (30:55):
I get for.

Speaker 7 (30:57):
Of generated income, so I get.

Speaker 8 (31:01):
The difference.

Speaker 4 (31:03):
So so you there's no contract that you get an
hourly rate and then you get a retainer on top
of that. Do you have forty percent at the end
of the year, they pay you a bonus.

Speaker 7 (31:14):
Just a difference between what what he's paid me as
my wages and then how much the forty percent is
of generated income and just what the difference is. I
get that as a little bonus at the end of
the year. It might be like two thousand dollars or
three thousand dollars.

Speaker 14 (31:27):
Or something like that.

Speaker 7 (31:29):
But he's just recently told me that before he pays
that forty percent, he takes the three percent kiisavi back
out of that that he's paid through my wages.

Speaker 4 (31:39):
So do you pay q we Savior? Do you put
a contribution into KEII Saver?

Speaker 5 (31:44):
Yes?

Speaker 7 (31:45):
Okay, Basically I looks like I'm actually paying the whole
seven percent out of my wages because he's taking that
because he said, well, I'm not paying forty three percent commission, So.

Speaker 4 (31:56):
Okay, so he's but he's taken Kiwisaver out, which he's
got to do for you, and it's according to it's
probably deemed to be your income. So I think I
think that's probably appropriate that he does do it. If
it's a percentage of your gross income, then it probably
is the right thing. Trace Joe, then would.

Speaker 8 (32:15):
That not basically kind of make me more of a
contractor if he's not contributing.

Speaker 7 (32:20):
Any key we save this.

Speaker 4 (32:22):
Yeah, but he's not contributing anything.

Speaker 8 (32:26):
Legally. Will know he's not distributing anything.

Speaker 4 (32:29):
Will you contact I I D and ask them what
he's contributing and ask them if it's correct, and then
he takes it back.

Speaker 7 (32:35):
Off me at the end of the year, So through
i ID it looks like he is.

Speaker 8 (32:39):
But then he deducts that back off my commission at
the end of the year.

Speaker 7 (32:42):
So he's not contributing, right.

Speaker 4 (32:44):
Talk to I D, okay and get that in writing
from them, from your employer, and talk to IOD and
send it to them and saying this is what's happening.
Is this legitimate?

Speaker 3 (32:56):
Okay?

Speaker 7 (32:58):
When you look on the IOD website for bet all
the qake payment of the that's what it looks like.

Speaker 4 (33:03):
He is paying that and he's actually I gotcha, No,
I understand, but that deduction should give you written notification
of that. Joe, take a diode.

Speaker 3 (33:11):
Okay, all right, Sorry, I've got to keep moving, Joe,
if you've got any Yeah right, we'll carry on. Rex.

Speaker 10 (33:18):
Hello, yeah, hello you there, Yeah, yeah hello.

Speaker 11 (33:27):
I'm just I wonder if I have a lead to
stand on. My employeer sacked me when I was injured.

Speaker 3 (33:33):
I'm injured, injured at work or injured through something.

Speaker 11 (33:35):
Else, the injured of work? Yeah, he injured at work
or I had even had an operation.

Speaker 6 (33:42):
In the arm.

Speaker 4 (33:43):
So Rix, what do you thank you for? Was it
because you're injured or is it for some other reason?

Speaker 11 (33:49):
Well, they said that I missed an appointment of coming
back to work so they can do their work planner.
I missed an appointment for them to do that, And
I said, well, why doctor was sending the medical suits
and I haven't even had an operation yet.

Speaker 4 (34:05):
On my arm. So Rex, you can you can challenge
a dismissal if you feel it's been unjust and unfair,
So you can take it to the judiciary if you
want to. I think that they've got to have some
good grounds to dismiss you, particularly if you've been an
injury and its work related, but if you did something

(34:27):
untoward and it's caused it, but you're saying now it's
because you failed to actually turn up as required. So
that's not a secable defense unless you've got a habit
of doing that.

Speaker 11 (34:38):
No, No, I didn't turn up to a back to
work planning meeting. I'm still injured. I'm still off work.
I'm still injured. They're getting a medical suit and.

Speaker 14 (34:48):
So yes, so Rex.

Speaker 4 (34:49):
So that's what I'm saying to you. If you can
challenge them for that dismissal on the basis it was
just for not tuning up for one meeting, that's not acceptable.

Speaker 3 (34:58):
So you could challenge them on that, how would Rex
begin to go about challenging get the process going on that?

Speaker 4 (35:05):
So you write on a letter lodging a personal grievance
for unjustified dismissal, Right, okay, then and then lay it
down Rex in that letter.

Speaker 3 (35:14):
Okay, good luck, good luck Rex. Okay. Hond a second
to hey Tony.

Speaker 13 (35:23):
Yeah, good afternoon, Tim and Max. I think I've spoken
to you briefly before, Max about the Uber situation.

Speaker 3 (35:30):
Remember that.

Speaker 13 (35:30):
Yeah, I got fired because I asked the lady to
stop a kid ribbing my QR character pieces. But the
gist of it is, I just wonder are you following
you know, the current situation. If they're not successful in there,
I've gone to the Supreme Court I think in New
Zealand because I dipped out of the court to appeal
this is Uber. What would be the basis that I

(35:52):
would you be able to take an issue with them
for financial compensation if the if the current case that's
that's before the court.

Speaker 10 (36:01):
In other words, what.

Speaker 13 (36:02):
Would be what could I take them to this Studs
Tribes Unal for money that I deemed that they owe me?
Or how would I yours the best way?

Speaker 4 (36:09):
I've got some good news for you. The Court of
Appeal actually said that you were Uber drivers are employees, so.

Speaker 13 (36:17):
You can they're going to take it to the court.
They're going to take.

Speaker 4 (36:21):
What's happening is the government of saying that they're going
to put some legislation. The legislating so and whether it
will be appealed, they probably will. But right now you're
in a position and look eighty I think it's eight
hundred employees of Uber lodged to claim in the Employment
Relations Authority for back pay.

Speaker 13 (36:42):
Yeah, okay, Well, how would I go about briefly joining
that particular action? Would I have to calculate what I
was earning ever a week right up until now, or
how would I go? What would be the formula?

Speaker 4 (36:54):
Well, you'd have to be looking for retrospective holiday pay,
retrospectable sick pay, those all those things that come into it.
And whether there's these other people have gone through through
the union, and maybe they the union may allow you
to join and actually be part of that action if
you wanted to.

Speaker 3 (37:10):
Think as I guess Tony's Tony situation won't be covered
by the law change because the law change is are
going to govern arrangements from here on, and isn't it no?

Speaker 4 (37:19):
No, they could be saying that they've always been.

Speaker 3 (37:21):
Improv the act is going to make it retrospective.

Speaker 4 (37:26):
Yeah, I'm not sure about that. I don't think that's the.

Speaker 3 (37:30):
Retrospective legislation is generally a no no.

Speaker 4 (37:33):
So they won't do that.

Speaker 3 (37:34):
Well, determined on whether uber appeal to the Supreme Court
or whichever.

Speaker 4 (37:38):
It was making a good point here that you probably still,
okay Tony to lodge an application into the authority. I
know they're not listening to them at the moment because
they know there's going to be a change of law.
But I think you've got a case.

Speaker 13 (37:52):
Okay, Okay, so how would I go about it? Watch
the people I would contact again.

Speaker 4 (37:57):
So you contact the union. There's a union that are
New Zealand first is it?

Speaker 1 (38:01):
No?

Speaker 4 (38:01):
No, it's another union. There's a union have lodged it,
So give me a call afterwards, and that, you know.

Speaker 3 (38:08):
Get in touch with the white Hair grouping and google
them for his number. It's easy to yeah, because acts
of Parliament will only be generally you're quite road locking.
So the existing situation with these drivers is going to
go through the courts until it's until there's nowhere else

(38:28):
to turn.

Speaker 4 (38:29):
I guess, and I don't think the courts will have
a lot of empathy with the drivers that are actually
going to claim in there if the if the law
has changed, but you never know, you never know.

Speaker 3 (38:38):
Now nine minutes to six News Talk z B. Yes,
welcome back to smart Money. We've only got time for
one very quick course of Peter or where you go Peter.

Speaker 12 (38:55):
Hey, individual employment agreement and on it that stipulates a
work location and then directly under there that has a
comment it says the employee after consultation could be relocated.
The question is what does consultation mean? Does that mean
it can get to be done through agreement as well,
or what means at the moment the management has just

(39:16):
told people. Most people losing.

Speaker 4 (39:18):
Yep, And consultation means they need to talk to you,
get your point of view, and then they can still
make their own decision, but they've got to take it
into consideration.

Speaker 3 (39:27):
You'll view it's like a marriage where one partner says,
I consulted you, I just didn't do what you sold me.
So it's a bit like that. Yeah, so consultation is
just hearing feedback, but it still gives the employer the
right to do sort of what they want.

Speaker 4 (39:39):
Doesn't Yeah, that's exactly right.

Speaker 3 (39:41):
Hey, sorry, we can't continue the conversation with empeticus. We
are up against the tolop. But thank you for keeping
it very brief. Again, if you want to catch up
with Max from the white Head Group, you just google
Max white Head Employment and all your contact. You do
have a website, let's give it to them.

Speaker 4 (39:58):
Twenty four seven ninety three, ninety three and it's dub
dub dub Whitehead Group. They don't do their dub dubdub anymore,
do they.

Speaker 3 (40:05):
That's it's so twenty ten. Anyway, thanks for coming in.

Speaker 4 (40:10):
Max grat I love coming in with you, Tim, It's
really good fun.

Speaker 3 (40:13):
And thank you again to my producer Tyra Roberts. We'll
look forward to your company same time again.

Speaker 4 (40:18):
News next weekday is good, great music.

Speaker 3 (40:21):
Yeah. By the way, if you've missed any of the hours,
I would recommend going and looking for the Weekend collect
A podcast on iHeartRadio and we get every hour up
as quick as we can once the show's concluded, so
they'll be there hopefully waiting for you. And Sunday at
six is next. Look forward to your company next weekend.
Enjoy the rest of your Sunday. Bye bye.

Speaker 1 (41:12):
For more from the Weekend Collective, listen live to News
Talks it be weekends from three pm or follow the
podcast on iHeartRadio