https://www.hallpayne.com.au/blog/rss Sun, 28 December 2025 00:00:00 Sun, 28 December 2025 00:00:00 This 2024 decision from the Queensland Civil and Administrative Tribunal ( QCAT ) reminds health practitioners of the need to maintain standards of conduct even when outside of the workplace. In Nursing and Midwifery Board of Australia v LYS [2024] QCAT 209 , a nurse’s conviction on several criminal charges unrelated to work led to a finding of professional misconduct and a reprimand against her. Facts of the criminal offending The health practitioner in question ( LYS ) was an “exemplary” nurse who worked in the high-stress area of mental health. The relationship between LYS and her domestic partner had broken down in around April 2020, and she was subsequently subjected to “conduct that meets the description of family violence”. Her former partner’s conduct involved psychological, emotional, verbal, financial and other non-physical forms of abuse. Against this background and while intoxicated, in April 2021, LYS drove to her ex-partner’s residence, let herself into the property by removing a window screen and entered his bedroom. A verbal dispute ensued, which escalated when LYS grabbed a knife and threatened him with words to the effect that [she] “will fucking stab you”. LYS was convicted in the Magistrates Court of Queensland on her pleas of guilty of the following criminal charges: driving under the influence of liquor; enter dwelling without consent of owner or person in lawful occupation; common assault (Domestic Violence Offence); and wilful damage (Domestic Violence Offence). She was fined $800, disqualified from driving for seven months and sentenced to nine months’ probation. No conviction was recorded. Failure to report criminal charges – Ahpra obligations The Nursing and Midwifery Board ( Board ) sought two findings against LYS for professional misconduct due to: those criminal convictions; and her failure to report the criminal charges and convictions to the Board, as is required by section 130 of the National Law. You can read more about these reporting requirements in our earlier blog, “Health practitioners’ obligations to notify Ahpra of criminal charges” . QCAT decision QCAT addressed three key issues in the hearing: Did the criminal conduct constitute professional misconduct? QCAT held that it did. Did the failure to report criminal charges (and convictions) constitute professional misconduct? QCAT held that it didn’t . Rather, it constituted unprofessional conduct . Based on the above decisions, what sanction should be imposed? QCAT imposed a reprimand on the practitioner. Takeaways for health practitioners This case is a good reminder that private conduct may still constitute professional misconduct . In making the finding that the criminal conduct was professional misconduct, QCAT had regard to Health Care Complaints Commission v Haasbrook [2018] NSWCATOD 177 , in which it was observed: “…practitioners must act, both personally and professionally, with integrity and with respect for the law, in all aspects of their behaviour. General practitioners are frequently the first point of contact for victims of domestic violence. The public can only have confidence in such practitioners if the response of those practitioners to domestic violence, both personally and publicly, is exemplary.” Describing LYS’ offending, QCAT found that it was “serious” and amounted to a “substantial” departure from the standards of behaviour that are expected of health professionals. Thus, a finding of professional misconduct was warranted: “On any objective analysis, the conduct founding the convictions should be viewed as serious … The degree of departure can only be seen as substantial.” QCAT also labelled the failure to report criminal charges as “serious” but acknowledged that LYS’s failure to report was not deceitful and came amid “very difficult personal circumstances”. Thus, she avoided a second finding of professional misconduct. More generally, it appears that LYS’s conduct would have attracted more serious sanctions if there were not so many mitigating factors. For example, QCAT accepted that she: was an “exemplary” nurse; was well educated, undertakes academic, research and teaching work at universities; was “highly regarded professionally”; performed work to a “very high standard”; displayed a “caring, compassionate and appropriate” approach to patients; had no prior disciplinary transgressions; was affected by alcohol but did not have an alcohol problem; had been excluded from the property she had invested in with her former partner; and was subject to various forms of coercive control and domestic violence. Though not explaining her conduct, these circumstances: “provide light and shade to the conduct constituting the offences; they reinforce the contention that the conduct is out of character; and they serve as a point of distinction from conduct (and offences) in other cases where those circumstances were not present” Get help from a health lawyer LYS was recognised to be an exemplary professional in the midst of an exceedingly difficult time and was nevertheless the subject of serious findings and a sanction. The Tribunal noted that a reprimand is on the public record and has significant consequences for the reputation of the practitioner. The decision is a reminder for health practitioners of the necessity of maintaining acceptable standards of conduct outside of the workplace and of reporting any criminal charges and convictions to the professional body, even amid difficult personal circumstances. If you are facing investigations into your private or practice-related conduct as a health practitioner, it is vital that you seek early assistance from your union or a lawyer experienced in professional conduct and registration law. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article helpful or interesting? You may also like to read: Immediate action against health practitioners What happens when conditions are imposed on a health practitioners’ registration? How to deal with Ahpra complaints or notifications as a health professional https://www.hallpayne.com.au/blog/rss/blog/2025/december/nurse-guilty-professional-misconduct/ Sun, 28 December 2025 00:00:00 It is unlawful to discriminate against an employee based on their age. This applies to both young and older employees. In this article, we focus specifically on the federal Age Discrimination Act 2004 ( the Act ) and consider the following: Unlawful discrimination; What is age discrimination?; Case review – Australia’s first successful federal age discrimination case; What can I do if I’m being discriminated against?; The remedies and compensation available for a successful age discrimination case. What is unlawful discrimination? It is unlawful to discriminate against a person on the basis of many protected attributes in Australia, including age, gender, race, disability and sexual orientation. This applies across many areas, including employment and education.   What is age discrimination in the workplace? In the workplace, age discrimination occurs where an employee is treated less favourably than another employee in the same or similar circumstances due to their age or age group. Under the Act, there are two distinct types of discrimination: direct and indirect discrimination. The definitions below are framed in a way to assist you with identifying whether you are being discriminated against. Direct age discrimination Direct age discrimination  occurs where a person discriminates against you on the ground of age by treating or proposing to treat you less favourably than they treat or would treat a person of a different age, and the person does so because of your age or a characteristic of your age. Indirect age discrimination Indirect age discrimination occurs where a person discriminates against you on the ground of your age if they: impose or propose to impose a condition, requirement or practice; and the condition, requirement or practice is not reasonable in the circumstances; and the condition, requirement or practice has or is likely to have the effect of disadvantaging people of the same age as you. Case review – Australia’s first successful federal age discrimination case In Gutierrez v MUR Shipping Australia Pty Limited [2023] FCA 399 , the Federal Court found that a then 68-year-old former Chief Accountant had been discriminated against during his employment due to his age. The Court found that Mr Gutierrez’s employer had treated Mr Gutierrez less favourably than his potential replacement and that this treatment was directly due to Mr Gutierrez’s age. The worker’s employment history Mr Gutierrez commenced employment as a Chief Accountant with MUR Shipping (then known as SSM Shipping) on 15 June 2003. He signed a contract of employment with SSM Shipping on 13 February 2004 and was a long-standing employee. In February 2018, Mr Brian Getty, then Managing Director of MUR Shipping, asked Mr Gutierrez if he had any foreseeable plans to retire. At some point, Mr Getty also spoke with Mr Gutierrez about MUR Shipping having a fixed retirement age of 65 years. Mr Gutierrez informed Mr Getty that he intended to retire in September 2019, which was when Mr Gutierrez would have turned 70 years old. On 19 July 2018, Mr Gutierrez was informed that his employment would cease on 31 December 2018 and following this, until his nominated retirement age of 70, he would be placed on a fixed term contract. Mr Gutierrez rejected this offer. On 1 August 2018, Mr Gutierrez’s solicitors sent MUR Shipping a letter informing them that Mr Gutierrez’s employment had been ended in a way that broke the employment agreement. Mr Gutierrez commences proceedings for unlawful discrimination On 1 November 2019, Mr Gutierrez commenced proceedings against MUR Shipping in the Federal Circuit and Family Court of Australia for breaches of the Act. Mr Gutierrez claimed that he had been discriminated against on the basis of his age, had been constructively dismissed and had suffered a psychiatric injury, being an adjustment disorder, due to that discrimination. The Federal Circuit and Family Court of Australia (Division 2 General Federal Law) awarded Mr Gutierrez general damages of $20,000. Worker appeals decision to the Federal Court of Australia (Fair Work Division) Mr Gutierrez lodged an appeal alleging that: the award of damages ($20,000) was manifestly inadequate; the primary judge erred in failing to make an award for economic loss; and the primary judge erred in failing to find that the employer had terminated the worker’s employment because of his age. On appeal, the court found that MUR Shipping did unlawfully discriminate against Mr Gutierrez on account of his age. The Court determined that the employer pay Mr Gutierrez: general damages of $90,000; and damages for economic loss in the amount of $142,215.56. In total, Mr Gutierrez was awarded just over $232,000. What can I do if I’m being discriminated against due to my age? If you are experiencing age discrimination at work, you could address the situation by speaking to the person or people involved or with a manager or with someone from your employer’s human resources team, if they have such a team. If this option makes you feel uncomfortable or if the situation does not resolve, you or someone you engage on your behalf, such as a discrimination or employment lawyer , could make a written complaint to the Australian Human Rights Commission ( the Commission ). There is no application fee when making a complaint to the Commission. The complaint should include details and specify who was involved, what happened, where and when it happened. The Commission can arrange a translator or interpreter for you if required. You can make a complaint in any language. Compensation and other remedies after a successful age discrimination case Section 46PO(4) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) specifies that the remedies that can be granted by a Court in respect to a claim for age discrimination include: an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination; an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant; an order requiring a respondent to employ or re-employ an applicant; an order requiring a respondent to pay to an applicant, damages by way of compensation for any loss or damage suffered because of the conduct of the respondent; an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant; an order declaring that it would be inappropriate for any further action to be taken in the matter. The parties can ask for and agree on a wide range of remedies, including, for example, a written apology, at the conciliation stage. This allows the parties to have more flexibility and control in resolving an age discrimination claim with the Commission. Get help from an employment lawyer If you’re experiencing any issues with your employment, including issues related to age discrimination (or discrimination on other grounds), you should contact one of our award-winning employment lawyers for assistance and advice. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/december/age-discrimination-at-work/ Sun, 14 December 2025 00:00:00 If you are a Queensland worker and have sustained an injury in the workplace, you may have entitlements to workers’ compensation . However, to support your application, it is critical to understand the importance of accurately reporting the circumstances of your workplace injury to your employer. The recent Queensland Industrial Relations Commission (“QIRC”) decision in Dwyer v Workers' Compensation Regulator [2025] QIRC 119 demonstrates the importance of accurately reporting workplace incidents. Below is a brief summary of the QIRC decision. Background The Applicant, Mr Paul Dwyer, was employed as an effet operator with Mackay Sugar Limited, performing his duties at the Farleigh Sugar Cane Mill. On an unspecified date in November 2018, Mr Dwyer stepped on a drain grate that gave way, causing his left leg to drop approximately 20 centimetres into the drain. Mr Dwyer claimed that he verbally reported the incident to his shift supervisor and that he experienced some symptoms in the aftermath of the incident; however, he was able to continue working and did not make an application for workers’ compensation at that time. Several years after the incident, Mr Dwyer made an Application for Assessment of Degree of Permanent Impairment (“Application”). Mr Dwyer did not lodge an application for statutory workers’ compensation benefits within 6 months after the entitlement for compensation arose, so this Application would not provide any entitlement to weekly benefits, medical treatment expenses or lump sum compensation. However, if successful, this Application would enable Mr Dwyer to have his injury assessed for degree of permanent impairment, and provide an entitlement to pursue a common law claim for personal injury damages caused by the negligence of his employer. Workcover rejected Mr Dwyer’s Application. The Workers’ Compensation Regulator (“the Regulator”) then confirmed the decision of Workcover to reject the Application, ultimately reaching the view that Mr Dwyer did not sustain a knee injury as a consequence of the work incident in or about November 2018. Mr Dwyer lodged an appeal against the decision of the Regulator to the Queensland Industrial Relations Commission (“QIRC”), and the matter was heard in October 2023. Legal issue – was employment a significant contributing factor? For Mr Dwyer to be successful in his Application, he was required to prove, on the balance of probabilities, that: he was a Queensland worker at the time of the incident; and he sustained an injury, being personal injury arising out of, or in the course of employment, and his employment was a significant contributing factor. A substantive issue in dispute was whether Mr Dwyer's employment was a significant contributing factor of his personal injury. The Regulators’ case sought to cast doubt over whether the work incident happened. The QIRC found that, by arguing that there was no evidence to show Mr Dwyer had reported the incident, the Regulator were at least implying that the incident did not occur. In the course of the hearing, Counsel for the Regulator cross-examined Mr Dwyer, revealing inconsistencies in his descriptions of the incident; however, the QIRC were not surprised by these inconsistencies, given the length of time since the incident, and explicitly rejected the idea that such inconsistencies meant Mr Dwyer was dishonest. The Regulator further relied on the evidence of the shift supervisor, who provided evidence as follows: He had no recollection of Mr Dwyer reporting the incident to him in late 2018; and He knew the procedures for reporting and documenting incidents, but he did not undertake those procedures, so the incident must not have been reported. Decision of the QIRC The QIRC considered the testimony of both Mr Dwyer and the shift supervisor and observed that both made their best efforts to recall the details of a brief event that occurred many years before, which neither of them could be expected to reliably recall. Despite the inconsistencies in some aspects of his account of the incident, the QIRC considered Mr Dwyer to be a credible witness who remained consistent on the key aspects of the incident, namely that: he stepped on a grate; the grate fell away beneath him; he hurt his knee; and he told the shift supervisor. Furthermore, while the shift supervisor’s testimony regarding the lack of supporting documentation for the incident added a degree of plausibility to the theory that no incident was reported, the QIRC did not find that his lack of recollection of the incident being reported must mean that it was not reported. After consideration of the medical evidence, the QIRC was satisfied Mr Dwyer's employment was a significant contributing factor to his personal injury. The QIRC overturned the decision of the Regulator and allowed the injured worker’s application for assessment of permanent impairment. Importance of accurate reporting after a workplace incident While Mr Dwyer was ultimately successful in having his application accepted upon appeal, steps could have been taken to potentially avoid the need for court proceedings. To avoid a scenario where you are required to prove the incident that caused your injury did in fact occur, well after the incident itself, it is important for you to take steps at the time of your injury to accurately report the incident. The best step you can take to protect your rights is to complete an incident report or similar document reporting the circumstances of your injury. Some employers may prepare an incident report on your behalf. Unless the incident report they have prepared is completely accurate, you should not sign it. Alternatively, if you are unsure whether an incident report has been completed and you have only verbally explained the incident to your employer, we recommend you take the time to make notes of who you reported the incident to, the dates and times of the conversations and what you discussed. We also recommend that you keep a copy of any incident reports for your own records, along with contemporaneous evidence such as medical reports, hospital discharge forms, or CCTV. You can read more detail about this in our earlier blog, “Steps to take after a workplace injury in Queensland” . Get help from a workers’ compensation lawyer Queensland Workers may have entitlements to workers’ compensation if they are injured in the workplace. To support an application for compensation, it is important to take steps to accurately report the circumstances of your injury. If you’re experiencing difficulties with your claim after a workplace injury, including if your claim has been rejected , you should seek legal advice early from a lawyer experienced in the Queensland workers’ compensation scheme. We offer flexible consultation options, including in-person meetings, phone discussions, and video calls. Contact Hall Payne Lawyers today to ensure you make informed decisions about your rights, and secure the compensation you deserve. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/november/reporting-workplace-injury/ Sun, 30 November 2025 00:00:00 An effective resignation is a termination of the employment contract. In what circumstances can an employee’s resignation be refused by the employer so that the termination does not take effect? What happens if you don’t give enough notice? For a termination of the contract by either party to be effective, whether that be by resignation, summary dismissal or genuine redundancy , it must occur in accordance with the clauses of your written employment contract about termination of employment (often called the termination clause) and any applicable industrial instruments such as an award or enterprise agreement. ‘Notice’ is notification of the future termination of employment after a defined period of time has elapsed. Notice allows the non-terminating party to have warning of the contract coming to an end. Requirements for resignation Usually, a notice of resignation will need to be in writing to a designated recipient (e.g. a direct supervisor/manager, human resources, business owner, etc) and provide advanced warning of the termination. Where a resignation is not validly given (for example, the employment contract requires four weeks’ notice but the employee only gives one week’s notice), the employment contract will not be terminated. However, the employer can either accept that defective resignation or affirm the contract, refusing the resignation. Effectively, even if an employee expresses an intention to resign, it may not necessarily end the employment relationship. This also means that, unless and until the employer accepts the defective resignation, it may be withdrawn by the employee. What happens if there is no notice period in the employment contract? Where an employment contract does not provide for a specific notice period to be given upon termination, a term might be implied into the contract requiring a resigning employee to give “reasonable notice”. What is “reasonable” is determined with reference to how long an employee has been working in that role and the type of employment. What happens if my resignation is not accepted? If your resignation is valid (that is, you have met all the requirements under your Award, enterprise agreement or employment contract), then your employer cannot refuse to accept your resignation. If, however, your resignation has not complied with the requirements of your contract or industrial instrument, your employer may consider it invalid and not accept it. If it is not in writing, for example, your employer may require you to notify them in writing before the notice period commences, or your employer may require you to work for the whole period of notice you were required to give. Tips for resigning properly and fairly It is important to read the requirements for resignation contained in your employment contract, award or enterprise agreement. These requirements will determine what you need to do to end your employment with proper legal effect. To avoid the possibility of your resignation being refused due to non-compliance with your contract, it is good practice to discuss your intentions directly with your employer prior to providing formal notice in writing. From time to time, people resign in the heat of the moment only to rethink their decision a short time later. If this has happened to you, you should consider approaching your employer and talking through the issues that led to your resignation. They may be amenable to accepting a retraction of your resignation. Notably, however, if your resignation is valid, your employer has the right to accept it and terminate the employment relationship even if you have changed your mind. When working out your notice period, it’s important to have a positive attitude and assist in the transition. This will lead to a more comfortable period for both employee and employer. It can also assist you with your future employment search, as you can often rely on positive references. Also, it is not unheard of for employees to resign, leave for a period of time and then return to the employer in a new role. A positive and respectful relationship is key to this being an option for you in the future. Get help from an employment lawyer In short, your employer cannot refuse your resignation if you have complied with the requirements of your employment contract. Should your employer refuse your resignation, you should contact an employment lawyer to understand the requirements for valid resignation under your contract and, if your contract is silent on the matter, under general contract of employment law. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/november/valid-resignation/ Sun, 16 November 2025 00:00:00 How long you can be on workers’ compensation benefits in NSW depends on your capacity for work and your whole person impairment (WPI) assessment (which is used to determine any lump sum compensation due to permanent impairment). The answer varies as it depends on several factors, including: the nature of your injury; your recovery progress; your capacity to return to work ; and the type of workers' compensation benefits you are receiving. Maximum period of workers’ compensation weekly payments Generally, the maximum you can claim weekly payments of workers’ compensation in NSW is up to 5 years. However, if your permanent impairment is greater than 20% WPI and you are assessed as being incapacitated indefinitely, then your weekly payments can be extended beyond 5 years. We will explore the general guidelines for workers’ compensation weekly payments, the duration of benefits, and the circumstances that might affect your entitlements below. First entitlement period:  weeks 0-13 During the first entitlement period, if you have no capacity for work, you can receive weekly payments for up to 95% of your Pre-Injury Average Weekly Earnings (PIAWE). If you have some capacity to work in the first entitlement period, you will receive 95% of your PIAWE less your current weekly earnings. Consider this example when you have some capacity to work: Your PIAWE were $1,250; After 4 weeks off work, you return to work but on limited hours at only 8 hours per week (20% of your pre-injury hours); 20% of your PIAWE is $250 (which your employer will pay); The remaining $1,000 per week of your PIAWE will be paid at 95% So, you will be paid $250 for the hours you work and $950 for workers’ compensation benefits. Second entitlement period: weeks 14-130 If you have no capacity for work during the second entitlement period, you are entitled to 80% of your PIAWE. If you have capacity to work less than 15 hours a week, you are entitled to 80% of your PIAWE, less your current weekly earnings. If you have capacity to work 15 hours or more a week, your workers’ compensation payments increase, and you would be entitled to 95% of your PIAWE, less your current weekly earnings. After the second entitlement period: weeks 131-260 If you are still incapacitated after 130 weeks, you can apply for payments after the second entitlement period and be entitled to 80% of your PIAWE if: you have no capacity to work; or you are working 15 hours or more per week; and you are earning at least $155 per week (this amount is indexed based on the Workers Compensation Benefit Guide); and you are likely to continue indefinitely to be incapable of increasing your hours or your weekly earnings; and you apply for continuation of weekly payments to the insurer in writing 52 weeks prior to the end of the second entitlement period. Entitlement after 5 years (260 weeks) As mentioned earlier, weekly payments cease after 5 years unless your assessment for permanent impairment is greater than 20% WPI. Permanent impairment claim Your level of whole-person impairment determines the length of time you are entitled to weekly benefits and medical treatment expenses. It is important to explore your entitlement for a permanent impairment claim if you are eligible. To explore your entitlement for a permanent impairment claim, you must reach the threshold of 11% or more for physical injuries and 15% or more for psychological injuries, and your injury must have reached maximum medical improvement and your condition must have stabilised. You can read more about this in our earlier blog, "Workers compensation NSW – lump sum claims for permanent impairment" . Permanent impairment compensation is not available for secondary psychological injuries. For example, if you sustain a psychological injury due to your primary physical injury. Weekly benefits for an injured worker with high needs If it is accepted that a worker has a whole person impairment of 21-30%, they are considered a worker with high needs. A worker with high needs is eligible to receive weekly payments until retirement age and lifetime coverage of reasonable medical expenses for treatment related to their workplace injury or illness. A worker with high needs must undergo work capacity assessments as requested by the workers’ compensation insurer, which could be at least every two years. Weekly benefits for highest needs workers If it is accepted that a worker has a whole person impairment that is greater than 31%, they are considered a worker with highest needs. A worker with highest needs is eligible to receive weekly payments until retirement age as well as lifetime coverage of reasonable medical treatment expenses. A worker with highest needs is not required to undertake work capacity assessments, unless they elect to do so. Get help from a workers’ compensation lawyer In NSW, the duration of workers’ compensation benefits varies depending on your injury, recovery, and the type of compensation you’re receiving. While most workers receive weekly payments for up to 130 weeks, those with more serious or long-term injuries may continue to receive payments and treatment for much longer, particularly if there is a permanent impairment. If you're unsure of your entitlements or if you're approaching the end of your compensation period, it’s a good idea to seek legal advice to ensure you’re fully aware of your rights and options. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/november/workers-comp-duration-nsw/ Sun, 02 November 2025 00:00:00 If you have been exposed to asbestos during your working life in NSW, and you have been diagnosed with an injury or disease related to asbestos, you may be entitled to make a claim for workers’ compensation . Even if your exposure was many years ago and symptoms or diagnosis are recent, you may still have compensation rights and entitlements. Asbestosis is a serious and progressive lung disease caused by prolonged exposure to asbestos, a hazardous material used primarily in construction, manufacturing, and insulation. Many people working in industries such as construction and shipbuilding were unknowingly exposed to asbestos fibres, leading to long-term health issues, including asbestosis, but its symptoms may not become apparent until years later. Asbestos was commonly used in Australia until the late 1980s, particularly in construction materials such as insulation, roofing, and flooring. Types of diseases that can lead to asbestosis There are a number of diseases/illnesses related to asbestos exposure, including: mesothelioma; carcinoma; pleural plaques; lung cancer; and many other cancers. Eligibility for workers’ compensation due to asbestos exposure in NSW An injured worker must satisfy the following criteria to claim workers’ compensation: The primary requirement is a medical diagnosis of asbestos-related disease, confirmed by a healthcare professional who has experience in respiratory medicine. You must be able to provide evidence that you were exposed to asbestos or harmful dust particles while working in a relevant industry or occupation. You have a level of disability arising from the asbestos exposure, which has resulted in partial or total incapacity for work. Compensation available: NSW state-based workers’ compensation scheme If your asbestos exposure occurred while you were employed in a high-risk industry in NSW, and you are diagnosed with an asbestos related disease, you may be entitled to workers' compensation. There are two types of compensation available: Statutory compensation This type of compensation is available under the NSW workers’ compensation scheme, which is a no-fault scheme. This means that injured workers do not have to prove negligence resulted in their injury. Statutory compensation benefits include: Weekly payments ; Medical treatment expenses ; Lump sum compensation due to permanent impairment ; Funeral benefits; and Compensation for dependants. Common law damages This type of claim is in addition to any statutory entitlements. To be successful in a common law claim, injured workers must prove that their injury/illness was the fault of a third party (the employer) and was due to negligence and/or breach of duty of care. Common law damages include: General damages, also known as pain and suffering; Loss of past and future earnings; Past and future medical treatment expenses; Past and future domestic assistance; and Interest and costs. Workers’ compensation claims for asbestos are made to the Workers Compensation (Dust Diseases) Authority of NSW (“DDA”) or Dust Diseases Care (“DDC”) administered by icare (the workers’ compensation insurance provider in NSW), and entitlements are determined by the Workers Compensation (Dust Disease) Act 1942 . To bring a claim for common law damages, a worker is required to commence proceedings in the  Dust Diseases Tribunal  of NSW (“DDT”). Compensation available: Comcare federal workers’ compensation scheme If you are a Commonwealth employee exposed to asbestos, you may claim statutory compensation pursuant to the Commonwealth Safety Rehabilitation and Compensation Act 1988 via the national Comcare Scheme. Commonwealth employees cannot claim both statutory compensation and common law damages for compensation in negligence. They must make a choice between one or the other. Dependency claims after the death of a worker due to asbestos exposure In NSW, if a worker dies from an asbestos related disease due to workplace exposure and leaves dependents, the following compensation options may be available: If a claim had already commenced (but not finalised) prior to the death of the worker, a dependent may continue that claim; Funeral benefits from the DDA; If a dependent relied on the deceased worker for financial support, they may be able to make a separate claim for dependency. Time limits for workers’ compensation claims due to asbestos exposure There are no time limits for commencing a workers’ compensation claim in NSW due to asbestos exposure or other dust diseases related to work. The DDT operates under an expedited process for dust-related claims, including those brought by dependants if the worker has died. It is recommended that you lodge your claim as soon as you become aware of your work-related illness. With the expedited process, benefits like weekly payments and medical expenses can commence quickly. Get help from an asbestos and dust diseases lawyer If you or someone you know has been diagnosed with asbestosis due to exposure to asbestos in the workplace, it's vital to consider pursuing compensation. Asbestosis compensation claims in NSW can help cover medical expenses, lost wages, and provide compensation for pain and suffering caused by the disease. Seeking professional legal advice will ensure that your claim is handled efficiently and that you receive the support you need during this challenging time. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/october/workers-comp-and-asbestos-nsw/ Sun, 19 October 2025 00:00:00 In late 2025, Hall Payne Lawyers acted for an injured worker in a significant decision handed down by the Tasmanian Civil and Administrative Tribunal (TASCAT). The case, KC v Devonfield Enterprises Inc (No.2) [2025] TASCAT 196 , confirms and strengthens the protections available to injured workers whose weekly compensation has been wrongly terminated by their employer. This is a landmark decision for Tasmanian workers, clarifying how employers may (and may not) lawfully terminate weekly payments under section 86 of the Workers Rehabilitation and Compensation Act 1988 ( the Act ). Background to workers’ compensation claim Our client, “KC”, was employed by Devonfield Enterprises (Tasmania) as a team leader in disability support services. He sustained a serious lower back injury at work in May 2023 and was unable to perform his usual duties. KC lodged a workers’ compensation claim , which was initially accepted and weekly payments commenced. After surgery and a gradual return to work on reduced hours and modified duties, KC’s back symptoms persisted. Despite continuing to provide valid medical certificates showing ongoing incapacity for his physical injury, the employer terminated his weekly payments on the basis that he had “returned to work”. Later, after a separate psychological claim was disputed, the employer maintained that KC had no further entitlement to compensation for his physical injury. As a result, KC went without income support for many months while still experiencing significant incapacity. Hall Payne Lawyers, on behalf of KC, filed a referral under section 42 of the Act to challenge the termination of workers’ compensation benefits and seek reinstatement of his weekly payments. The Tribunal’s findings Deputy President RM Grueber found that Devonfield Enterprises was not entitled to permanently terminate the worker’s weekly payments under section 86(1) of the Act. The Tribunal held that: the employer’s power to terminate or reduce weekly payments under section 86(1)(a) or (b) only applies to the period of earnings (that is, a set period or periods of time that the worker may have returned to work and received wages) - not permanently ; if a worker’s capacity later decreases or their earnings fall, their right to weekly payments automatically resumes within the same overall period of incapacity; absent a determination under section 81A or lawful termination of weekly payments under section 86, the employer bears the onus of proving that a worker is no longer entitled to compensation. This is the case, even where the worker has initiated the referral to the Tribunal; a worker’s entitlement to compensation is not “interrupted” by any non-compensable injury; that is, if a worker has an accepted workers’ compensation claim due to a workplace injury and later suffers a non-work-related injury, workers’ compensation benefits still continue for the original workplace injury. Accordingly, the Tribunal ordered that weekly payments be reinstated, with backpay to be calculated, and the employer to meet the worker’s costs of the referral to the Tribunal. What this decision means for injured workers This case builds on and applies the reasoning in SE v Crown Equipment Pty Ltd [2025] TASCAT 195 , another case clarifying section 86 of the Act. Together, these decisions establish that: employers cannot “permanently terminate” a worker’s weekly compensation merely because the worker had a brief period of higher earnings or partial return to work; workers with fluctuating or partial incapacity remain entitled to compensation unless the employer lawfully terminates payments under other provisions (such as section 86(1)(c) or section 88*); the Tribunal continues to interpret Tasmania’s workers' compensation laws in a manner consistent with their beneficial purpose. * Section of the Act provides additional grounds for termination of weekly payments. For example, where the injured worker refuses to undergo reasonable medical treatment or leaves Tasmania permanently. This outcome is a major victory for injured workers across Tasmania, confirming that employers must act lawfully and evidence-based when ceasing weekly compensation. Hall Payne Lawyers is proud to have represented KC in achieving this important result. Our client’s persistence has resulted in a ruling that will assist countless other injured workers facing similar unlawful termination of weekly payments. Get help from a workers’ compensation lawyer If your weekly payments have been reduced or terminated, or you’re unsure about any of your workers’ compensation entitlements, our experienced team can help. We have extensive experience acting for injured workers in complex disputes before TASCAT and across Australia. Contact Hall Payne Lawyers today for expert advice on your rights under the Workers Rehabilitation and Compensation Act 1988 . Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/october/weekly-payments-win-tasmania/ Tue, 14 October 2025 00:00:00 Employees are generally bound to abide by their employer’s workplace policies and procedures. This can be done, for example, via express terms in the employment contract or as a reasonable and lawful direction. However, workplace policies often purport to place obligations on the employer as well. In this blog, we explore the following: defining “workplace policy”; employee obligations regarding workplace policies; consequences if an employee breaches a workplace policy; when a workplace policy becomes contractual; and the consequences of a policy being contractual vs non-contractual. What is a workplace policy? A workplace policy is a document that generally deals with the employer’s practices, requirements and procedures. The legal definition and function of policies is, however, a little more complicated. At law, workplace policies have usually been seen as written directions given by an employer to its employees. However, in certain circumstances, a workplace policy may also place obligations on an employer if it can be argued that the parties intended for the policy to create mutual obligations of a contractual nature. Are all employees bound to follow their employer’s workplace policies? The simple answer is yes. All employment contracts contain an implied clause that an employee must obey the lawful and reasonable directions of their employer. Given that policies at law are usually construed as written directions given by an employer to its employees, this means that employees are contractually bound to follow the lawful and reasonable policies of their employer. What if an employee breaches a policy? A breach of policy may constitute misconduct arising from a failure to follow a direction given by an employer. This could lead to a disciplinary process with consequences up to and including dismissal. To ensure that employees are aware of all workplace policies and procedures, employers sometimes require employees to sign policy documents to confirm that they have read and understood them. They will also ensure regular training into the relevant subject matter of relevant policies. However, a lack of training or failing to have read a workplace policy is not necessarily a complete defence to an allegation that the employee has breached the policy. When might a workplace policy place obligations onto an employer? A workplace policy may place obligations onto an employer if it can be said to have been ‘incorporated’ into the employment contract. If an employee can successfully argue that the policy has been incorporated, then a breach by the employer of its own policy would constitute a breach of the contract and provide a cause of action for the employee for damages. When is a policy incorporated into a contract? Unfortunately, the answer to this question is not straightforward and will depend on a close analysis of the employment contract and the wording of the policy itself. In short, a policy may be incorporated into an employment contract if: it is explicitly incorporated through a contractual clause; or a reasonable person would have understood that there was a common intention by the parties to the contract that the policy was incorporated at the time that the contract was entered into. Explicit incorporation In some cases, an employment contract may explicitly state that an employee must follow the employer’s policies or that those policies have contractual force. Depending on how this is phrased in the contract, it may establish that the policies themselves are contractual in nature. For example, in Elisha v Vision Australia Ltd [2024] HCA 50 , the employee’s contract stated: ‘ Your engagement will be governed by the terms of this letter and the [Award]. … In addition, Employment Conditions will be in accordance with regulatory requirements and Vision Australia Policies and Procedures. Breach of the Polices and Procedures may result in disciplinary actions.’ In that case, it was held that a policy titled ‘Vision 2015 Disciplinary Procedure’ was incorporated into the contract, and so the employer’s breach of that policy was held to be a breach of contract – leading to a significant award of damages to the employee. A reasonable person would consider a workplace policy to be incorporated In some cases, the court will ask itself if a reasonable person, having considered the employment contract, the language of the relevant policy, and any relevant surrounding circumstances, would consider that there was a common intention by the parties that the policy be contractual. The question for a court is what the words and conduct of the parties prior to the formation of the contract would have led a reasonable person in the position of the other party to believe; not what the subjective beliefs or understandings of the parties about their rights and obligations actually may have been. For example, if the terms of a workplace policy are ‘promissory’, in the sense that an employer is promising to act in a particular way, then it is more likely that those terms may be incorporated into the employment contract. On the other hand, if a policy is stated in terms that are ‘merely aspirational’ (that an employer hopes to uphold certain standards) or ‘advisory’ (advising an employee or employer on how to act), then it is less likely that the parties intended for it to be contractual in nature. What if a contract explicitly states that policies and procedures are not incorporated? If an employment contract contains a clause to the effect that an employer’s policies and procedures are not incorporated into the employment contract, this presents a significant (possibly insurmountable) hurdle to an argument that a policy is contractual in nature. For example, in Robinson v Pilbara Iron Company (Services) Pty Ltd (No 2) [2023] FedCFamC2G 593 , the employment contract contained an express provision that: ‘ The benefits provided to you under our policies are discretionary in nature and do not form part of your contract of employment.’ Judge Lucev concluded that the plain meaning of the express term (and hence the intentions of the parties) was that a policy called the ‘ Fair Treatment Systems Policy ’ did not carry contractual weight or impose any mutual obligations onto the employer. Consequences of a policy being contractual vs non-contractual As outlined above, employees are required to follow their employer’s policies, assuming the terms of the policy in question are lawful and reasonable. On the other hand, if the terms of a policy are incorporated into the contract (thereby being ‘contractual’ in nature), then those terms might bind the employer as well. In this case, an employee may be able to bring a breach of contract claim against the employer if the employer breaches a term of their policy that is incorporated into the contract. Seek legal advice from a lawyer experienced in employment law If you have a contractual dispute with your employer, it is important that you seek legal advice from an employment lawyer. Hall Payne Lawyers are highly experienced in employment and contract law and can provide you with legal advice about your rights and obligations. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/october/workplace-policies/ Sat, 04 October 2025 00:00:00 A 2024 Queensland tribunal decision reinforces the strict professional boundaries required of health practitioners. In Health Ombudsman v MKY (No. 2) [2024] QCAT 336 , a chiropractor was found guilty of professional misconduct after engaging in a consensual sexual relationship with a long-term client. Despite no evidence of harm, exploitation or ongoing risk, the practitioner faced serious disciplinary action. This blog explores the reasoning behind the decision and key lessons for health professionals navigating professional conduct standards. Facts of the sexual relationship In this case, the practitioner ( MKY ) was a chiropractor who had been treating a client ( Ms D ), as well as various members of her family, for over 15 years. In the latter 18 months of that period, MKY and Ms D conducted an “entirely consensual sexual relationship.” Towards the end of the relationship, Ms D’s husband made a complaint to the Health Ombudsman about the relationship, which ultimately led to proceedings at QCAT. The Health Ombudsman sought: a finding of “professional misconduct”; a suspension for 3-6 months; and an obligation to receive mentoring from another practitioner. Decision of QCAT QCAT addressed two key issues: Did the relationship constitute professional misconduct? The tribunal held that the relationship did constitute professional misconduct. If there is a finding of professional misconduct, what sanction(s) should be imposed? The tribunal imposed a fine of $7,500 and a reprimand on the practitioner. Takeaways for health practitioners The tribunal noted that any form of sexual relationship with a patient would amount to a finding of professional misconduct: “Decisions of this and other tribunals are to the effect that, generally, all such conduct falls substantially below the expected standard.” The tribunal then expanded on this point, quoting a previous decision to note that “ any form of social contact with a patient will not be tolerated ”. The justification for an overarching provision is twofold: The power imbalance between practitioners and patients; and The duty of the health practitioner to maintain professional boundaries . Accordingly, the tribunal continued, it is irrelevant that: “MKY and Ms D were adults well known to each other conducting an entirely consensual relationship where neither had specific emotional or psychological vulnerabilities.” Further, QCAT imposed sanctions on the health practitioner despite: MKY’s behaviour not being predatory or exploitative; the relationship being based on mutual affection and respect; no allegation of similar behaviour ever being made or hinted at by any other patient during the more than 20 years MKY has been practicing; MKY having no disciplinary history; MKY having been burdened by the prospect of these proceedings and their potential consequences for three years; references from authors with full knowledge of the conduct referring to MKY’s good character and the high esteem in which he is held in the community; MKY exhibiting insight and remorse, and shame for his behaviour; no suggestion that MKY represents an ongoing risk of any similar behaviour to any other patient; and MKY implementing specific practices that address the potential for boundary violations, including the display of an information sheet for patients and subsequently undertaking mentoring at his own expense. Get help from a professional conduct lawyer In short, the tribunal recognised MKY to be a competent, even exemplary practitioner who was of “good character and high esteem”, who at no point ever exhibited any predatory behaviour nor presented any ongoing risk to any patient. Yet, in spite of that, MKY’s record has been tarnished with a reprimand, and he was fined $7,500. MKY’s case highlights the strict boundaries practitioners must abide by in relation to patients.  If you are facing disciplinary action for actions which constitute a breach of professional conduct or code of ethics, it is vital you seek early assistance from your union or a lawyer experienced in health law . Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Further reading: How to deal with Ahpra complaints or notifications as a health professional Making statements over the phone to Ahpra QCAT decision allows nurse to keep her job after romantic relationship with a patient https://www.hallpayne.com.au/blog/rss/blog/2025/september/chiropractor-professional-misconduct/ Sun, 21 September 2025 00:00:00 Persons conducting a business or undertaking ( PCBU ) in NSW are required to implement measures to protect workers’ health and safety. In some circumstances, this includes a requirement to provide personal protective equipment ( PPE ) to workers. If you are a worker, you may have questions about the nature and extent of this obligation, including who it applies to, how it might apply in different employment arrangements, and the consequences of non-compliance. In this blog, we look at: what is PPE? the definitions of PCBU and worker under the Work Health and Safety Act 2011 (NSW) ( WHS Act ); obligations on both a PCBU and a worker related to the provision and use of PPE; consequences of non-compliance with PPE obligations; and workers’ rights if appropriate PPE is not provided. This blog specifically addresses PPE obligations in NSW, however, it should be noted that different jurisdictions across Australia will have similar obligations and protections for workers. What is PPE? The term PPE is defined in the Work Health and Safety Regulation 2017 to mean ‘anything used or worn by a person to minimise risk to the person’s health and safety, including air supplied respiratory equipment’. A wide range of PPE is used by workers across different industries. Common examples include hard hats, face masks, eye protection, gloves and high-visibility clothing. On the other hand, work clothing that is not worn for the purpose of minimising risks to personal health and safety is not PPE. What is a PCBU? The phrase person conducting a business or undertaking is defined in section 5 of the WHS Act. In short, a PCBU refers to an individual or organisation that operates a business or undertaking, either alone or with others. Under the WHS Act, a PCBU has a duty to ensure the health and safety of workers and others affected by their operations. The definition includes all forms of modern working arrangements; for example, businesses, partnerships, and unincorporated associations, whether the entity is for profit or not. This means that a head contractor or labour hire company is a PCBU in the same way an employer is. In some employment arrangements, multiple people can have the same duty as a PCBU. For example: if you are a labour-hire worker, the labour-hire agency and the person or business directing the work are both a PCBU; and if you work for a subcontractor, the head-contractor and the subcontractor are both a PCBU. What obligations does a PCBU have in relation to PPE? A PCBU is required to manage risks to health and safety by: eliminating risks to health and safety so far as is reasonably practicable; and if not reasonably practicable to eliminate, minimise those risks as far as is reasonably practicable. Under Work Health and Safety Regulation 2017 ( WHS Regulations ), PPE is the “last resort” in the hierarchy of minimising risks. This means that it must be provided to workers where the hazard cannot be eliminated, avoided, isolated or addressed with engineering or administrative controls. This simply means that a PCBU is required to address any hazard/risk to health and safety in other ways before resorting to PPE. As noted above, this obligation may attach to several persons in the employment scenario (e.g., head-contractor and contractor). Regulation 44(2) of the WHS Regulations requires each PCBU to provide workers with the necessary PPE unless it has been provided by another PCBU. This means that, for example, the person directing work may not have to provide PPE if it has already been provided by a labour-hire company. Under regulation 44(3), the PCBU providing the worker with PPE must ensure that it is: selected to minimise risk to health and safety, including by ensuring it is: suitable having regard to the nature of the work and any hazard associated with the work, and a suitable size and fit, and reasonably comfortable for the worker who is to use or wear it, and maintained, repaired or replaced so that it continues to minimise risk to the worker who uses it, including by ensuring that the equipment is: clean and hygienic, and in good working order, and used or worn by the worker, so far as is reasonably practicable. Further, the PCBU must provide you with information, training and instruction on the proper use and wearing of the PPE, as well as the storage and maintenance of the PPE.    How is a “worker” defined in the WHS Act (NSW)? The WHS Act defines “worker” in broad terms. You will be a “worker” if you carry out work in any capacity for a PCBU, including as: an employee; or a contractor or subcontractor; or an employee of a contractor or subcontractor; or an employee of a labour hire company who has been assigned to work in the person’s business or undertaking; or an outworker; or an apprentice or trainee; or a student gaining work experience; or a volunteer; or a person of a prescribed class. It is possible for a PCBU to also be a worker if the relevant individual carries out work in the business or undertaking; for example, a subcontractor who physically works and has others working for them. Can my boss make me pay for my own PPE? Under the WHS Act, a PCBU cannot charge you for the provision of PPE. What PPE obligations do I have as a worker? As a worker, you have obligations in relation to wearing PPE under regulation 46 of the WHS Regulations. Specifically, you are obligated to use or wear the equipment in accordance with any information, training or reasonable instruction by the PCBU. Further, you must not intentionally misuse or damage the equipment, and must notify a PCBU of any damage to, defect in or need to clean the equipment that you become aware of. What are the consequences of non-compliance with PPE obligations? Non-compliance by a PCBU A PCBU who either does not provide workers with PPE or who charges workers for PPE is subject to penalties. Penalties for a PCBU can include the following: For not providing appropriate PPE or not providing information, training and instruction about the PPE: fines of $40,040* for a body corporate or $8,030* for an individual. For charging a worker for PPE: fines of $33,440* for a body corporate or $6,710* for an individual. Non-compliance by a worker A worker may also be subject to penalties for breaching obligations in relation to the PPE (e.g., for intentionally misusing or damaging it). Penalties for workers can include $23,870* for a body corporate and $4,730* for an individual. * Figures are current as of March 2025 but can be subject to change. What can I do if my employer is not providing me with appropriate PPE? If you have a dispute about PPE, it’s always best to try and resolve things with your employer in the first instance. This means raising the fact that your work requires PPE, that it is not being provided, or it is sub-standard or faulty, and requesting that the employer provide appropriate equipment. If you are a union member, you should seek the assistance of your union. If unsuccessful, you could remind them of their obligations under the WHS Act, and/or raise it with any elected Health and Safety Representatives at your workplace. If you are unable to resolve the issue with your employer, it may be necessary to report the employer to SafeWork NSW (who has the power to investigate and prosecute contraventions of the WHS Act) or seek advice from your union or an employment lawyer . If any adverse action is taken against you in response to your making a complaint, there are legal avenues available to address such conduct. Get help from an employment lawyer PPE is crucial safety equipment in many workplaces. It is provided for the health and safety of workers across NSW. It’s important to understand that both PCBUs and workers have obligations under the WHS Act and WHS Regulations. Workers also have rights and entitlements if a PCBU is not providing appropriate PPE. If you have questions about you or your workplace’s obligations in relation to PPE, please reach out to one to one of award-winning employment lawyers. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/september/ppe/ Sat, 06 September 2025 00:00:00 Workplace drug and alcohol testing is becoming more common across Australia, particularly in industries where safety is a top priority. In fact, some industries and occupational groups are covered by legislation that indirectly regulates the use of alcohol and drugs in the workplace. Some industries, such as mining, prohibit workers from working while being affected by drugs and alcohol. Whether you’re an employer looking to implement a policy or an employee wondering about your rights in relation to workplace drug and alcohol testing, here’s everything you need to know. Duty of care under the Work Health and Safety Act 2011 (Qld) Employers’ duty of care Employers have a duty of care to provide a safe working environment under various pieces of legislation. In Queensland, under the Work Health and Safety Act 2011 (Qld) (the WHS Act ), a person conducting a business or undertaking (PCBU): “ must ensure so far as reasonably practicable the health and safety of – (a) workers engaged, or caused to be engaged by the person; and (b) workers whose activities in carrying out work are influenced or directed by the person; while the workers are at work in the business or undertaking.” Irrespective of the industry you work in, your employer owes you a duty of care to provide a safe working environment. Employees’ duty of care Under section 28 of the WHS Act, a worker has a duty to: take reasonable care of their own safety; take reasonable care that their actions do not adversely affect the health and safety of other persons; comply with any reasonable instruction by the person conducting the business; co-operate with any reasonable policy or procedure of the person conducting the business relating to health or safety at the workplace. If an employee is under the influence of drugs or alcohol, it can put not only themselves, but their co-workers and the public at risk. This is particularly important in high-risk industries such as construction and mining, transport and logistics and healthcare. In office jobs, drug or alcohol use can lead to reduced productivity, poor decision-making and workplace accidents. Types of drug and alcohol testing and common screening There are several types of workplace drug and alcohol testing depending on the industry and company policy. Pre-employment testing This is testing conducted before a person is hired or offered employment. It’s usually a condition of employment, and the purpose is to ensure that prospective employees are not engaging in drug use that could affect their ability to perform the work safely. Random testing This testing is conducted without warning, hence the name ‘random testing’. There is generally no rhyme or reason as to who is selected in this testing. Post-incident testing This testing is conducted after a workplace accident has occurred or after a near miss to determine whether drugs or alcohol contributed. Reasonable suspicion testing This testing occurs when an employer has reasonable grounds to believe that an employee is under the influence of drugs or alcohol at work. Return-to-work testing This testing is undertaken when an employee is returning to work after a drug-related or alcohol-related issue; for example, after a failed test, rehabilitation or suspension. Employers will generally (this is not an exhaustive list) screen for alcohol, cannabis (THC), amphetamines and methamphetamines, cocaine, opiates or benzodiazepines. Testing methods vary, but they will often be urine, saliva, breath or blood tests. Your rights as an employee required to participate in drug and alcohol testing If your workplace requires drug and alcohol testing, your employer should have a clear policy outlining: when and how tests will be conducted; what substances are being tested for; what happens if you test positive, or non-negative (non-negative means that the initial test detected the presence of something in the sample that might be a drug – prescription, over the counter or illicit); your rights to challenge the results. Can I refuse a workplace drug or alcohol test? If your workplace requires drug and alcohol testing, refusing a test can be considered: a breach of your employment contract (because your employment is subject to your compliance with your employer’s policies and procedures); a breach of workplace policy; or a breach of your employer’s code of conduct. (A code of conduct is a set of guidelines that outline the behaviours and standards your employer expects you to follow.) Refusal of a test could lead to disciplinary action of some kind, which could include, but is not limited to, suspension or termination of employment. What happens if I test positive or non-negative? A positive result does not necessarily mean summary dismissal . Often, employers will conduct a secondary test to confirm results. Employers may offer a support program or counselling or rehabilitation to address any substance abuse issues. In jobs where safety is an inherent concern, a positive test could lead to immediate suspension or termination of employment. Can I challenge workplace drug and alcohol testing results? There is no set answer for this question. It is wholly dependent upon any drug and alcohol policy of your employer. In a legal sense, there is often no avenue to challenge a workplace drug and alcohol test result. Get help from an employment lawyer Workplace drug and alcohol testing is about safety, fairness and responsibility. It is not only an employer’s duty to ensure the health and safety of their employees, but it is also an obligation of an employee to ensure their actions do not impact the health and safety of others. If your workplace requires drug and alcohol testing and you’ve tested positive, resulting in disciplinary action or even dismissal, you should seek legal advice immediately about your options to dispute: the testing process; the workplace policy; the test results; the penalty imposed; or any other issues related to drug and alcohol testing at work. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/august/workplace-drug-alcohol-testing/ Sun, 24 August 2025 00:00:00 In a 2024 report, “Taking up the Right to Disconnect” , the Australian Institute has found that on average, employees are completing 3.6 hours of unpaid overtime a week. This is equal to 188 hours per year per worker. If you’re concerned your boss is making you work unreasonable hours, this article is for you. In this article, we consider a 2024 Magistrates Court (VIC) decision where it was found that an employee had worked unreasonable hours. The employer was liable for contravening the Fair Work Act 2009 (‘the Act’) and was ordered to pay the employee compensation in the amount of $7,913.84 + $271.89 to the plaintiff’s nominated superannuation fund. The Court also imposed penalties of: $22,200 for contravention of s 323(1) of the Act; $26,640 for contravention of s 44 of the Act in respect of s 62(1) of the Act; and $2,385.07 for interest. The total penalties imposed were $51,225.07. Background to the case In Readdie v People Shop [2024] VMC 16 , Ms Readdie was employed as a solicitor at a law firm from 17 February 2022 to 13 March 2022. Ms Readdie claimed the following with respect to her employer: She wasn’t paid by her employer; Her employer didn’t follow record-keeping obligations; She was required to work unreasonable hours; Her employer didn’t grant her compassionate leave; and She wasn’t reimbursed for work-related expenses she incurred. Specific factors set out at section 62(3) of the Act must be considered in determining whether additional hours an employee is requested or required to work are reasonable. These factors are as follows: Any risk to employee health and safety from working the additional hours; The employee's personal circumstances, including family responsibilities; The needs of the workplace or enterprise in which the employee is employed; Whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours; Any notice given by the employer of any request or requirement to work the additional hours; Any notice given by the employee of her or his intention to refuse to work the additional hours; The usual patterns of work in the industry, or the part of an industry, in which the employee works; The nature of the employee's role and the employee's level of responsibility; Whether any applicable modern award, enterprise agreement , or arrangement between the employer and employee provides for averaging of hours worked, and whether the additional hours are in accordance with those terms; and Any other relevant matter. The Court’s considerations The Industrial Division of the Magistrates’ Court of Victoria considered that s 62(1) of the Act ‘imposes a limit on the number of hours an employee may be asked or required to work’ and that the limit for a full-time employee is 38 hours a week ‘unless the additional hours are reasonable’ . Ms Readdie worked 67.46 hours in the week beginning 14 February, 79.46 hours in the week beginning 21 February and 79.25 hours in the week beginning 7 March. Her employment contract permitted her to work up to 40 hours a week and stated that she may be required to work in excess of 40 hours in a given week ‘when it is reasonably expected’ . The Court considered Ms Readdie’s personal circumstances, which included family responsibilities. Following Ms Readdie’s mum returning home from hospital, Ms Readdie was required to work additional hours, although she was trying to make arrangements for her mum. Ms Readdie didn’t see her mum on her mum’s birthday and was required to attend work although she had requested a day of leave for her former partner’s funeral. The Court also considered that Ms Readdie was rarely given notice from her employer about the hours she would be required to work. Ms Readdie was a junior employee in her first solicitor role and was required to supervise other staff when she was supposed to be supervised by another solicitor herself. She worked excessive hours while in a hotel room with her boss and the firm’s office manager, who deprived her of personal autonomy and agency. Court finds employer caused employee to work unreasonable hours The Court concluded that the additional hours the employer required Ms Readdie to work in the weeks beginning 14 February, 21 February and 7 March were unreasonable. [ para 138 of the 2024 judgment ] Ms Readdie’s employer was found to have contravened s 62(1) and was liable to pay Ms Readdie $26,640 for this contravention. In total, Ms Readdie was awarded $59,138.91 + $271.89 in superannuation for her employer’s many breaches of the Act , including their contravention of s 62(1). What can I do if my boss is making me work excessive or unreasonable hours? Under s 62(2) of the Fair Work Act , employees may refuse unreasonable additional hours. If you believe you are working unreasonable hours, you can initially consider raising the issue directly with your employer. You’re legally allowed to do so as this is an exercise of a workplace right. You could do this by: arranging an in-person meeting with your employer; and/or sending your employer an email or letter. If your employer does not respond or their response is unacceptable, you can: contact your union or an employment lawyer for assistance; and/or raise an anonymous complaint with Safe Work Australia. Get help from an employment lawyer If you’re experiencing any issues with your employment, including issues related to working excessive hours, you should contact one of our award-winning employment lawyers for assistance and advice.   Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Further reading: Additional hours – what is reasonable? Australian workers have the “Right to Disconnect” outside usual hours Benefits of contemporaneous notes in legal proceedings https://www.hallpayne.com.au/blog/rss/blog/2025/august/excessive-hours-breach/ Fri, 15 August 2025 00:00:00 If you sustain a musculoskeletal injury in the workplace, whilst your health and wellbeing come first, it is also important to be aware of your workers’ compensation rights and entitlements . In this blog, we look at: What is a musculoskeletal injury? Common workplace activities that lead to musculoskeletal injuries What jobs and industries are often associated with workplace musculoskeletal injuries? Workers’ compensation benefits available after a workplace injury Eligibility to pursue a common law claim after a workplace injury Compensation available under a common law claim Time limits for workers’ compensation claims in Queensland What is a musculoskeletal injury? If you have broken a bone or experience a strained muscle, you have likely suffered a musculoskeletal injury. A musculoskeletal injury is where you have injured your musculoskeletal system. This system is what provides your body with movement and stability, as well as providing shape and support. It is comprised of two sub-systems, which are simply described as: The muscular system: this refers to your muscles and tendons; The skeletal system: this refers to your bones, cartilage and joints. Common workplace activities that lead to musculoskeletal injuries Musculoskeletal injuries can be caused by a number of circumstances. Commonly, you may suffer a musculoskeletal injury by: lifting, pulling or pushing items in an unsafe manner and/or items which are too heavy; performing repetitive movements over a period of time, resulting in overuse; being crushed or sustaining a direct blow from machinery or equipment; injuries caused by slips, trips or falls. What jobs and industries are often associated with workplace musculoskeletal injuries? Generally, you are most at risk of sustaining a musculoskeletal injury in an occupation which requires manual handling. The occupations where workers are most at risk of musculoskeletal injuries include, but are not limited to, the following: Labourers, tradespersons, mine workers and construction workers; Process workers, machinery operators and technicians; Support workers, nurses and other health care professionals; Food service workers and retail workers. Workers’ compensation benefits available after a workplace injury If you suffer a musculoskeletal injury at work, you have an entitlement to lodge a workers’ compensation claim with Workcover Queensland or your employer’s self-insurer. For your application for workers’ compensation to be accepted, you must satisfy the following: You are a worker as defined in the Workers' Compensation and Rehabilitation Act 2003 ; You have lodged your application within the time limit; and You have sustained personal injury arising during the course of your employment, with employment being a significant contributing factor to the injury. If your workers’ compensation claim is accepted, you may receive the following statutory benefits under the no-fault scheme: Weekly payments for loss of income ; Payments for medical treatment and rehabilitation expenses; Payments for pharmaceutical expenses; Reimbursement of travel expenses associated with your injury; and Lump sum compensation due to permanent impairment. Eligibility to pursue a common law claim after a workplace injury In addition to the above statutory entitlements, if another person or organisation/entity (for example, your employer) was at fault for your injury, you may also be entitled to pursue a common law claim for damages (compensation) . Notably, you will only have an entitlement to pursue a common law claim against your employer if you have an accepted workers’ compensation claim and you have received a Notice of Assessment. A Notice of Assessment is a document from Workcover Queensland or your employer’s self-insurer which outlines your permanent impairment and may provide a monetary offer. You will receive a Notice of Assessment at the end of your statutory claim after your injuries have been assessed by an appropriate specialist for permanent impairment. Commencing a common law claim related to a workplace injury is complex. We recommend that you seek legal advice if you intend to pursue a common law claim after a musculoskeletal injury. GET ADVICE FROM A WORKERS' COMPENSATION LAWYER:  1800 659 114 Compensation available under a common law claim for musculoskeletal injuries When you pursue a common law claim, you are entitled to claim for various “heads of damage”. These heads of damage may include: pain, suffering and loss of amenities; loss of past and future earnings and associated superannuation; past and future hospital, medical and rehabilitation expenses (including surgical costs); past and future out-of-pocket expenses for items such as pharmaceuticals, travel and equipment; and gratuitous care. Time limits for workers’ compensation claims in Queensland Time limits apply to both statutory workers’ compensation claims and commencing common law proceedings after a workplace injury. Time limit to lodge a workers’ compensation claim To be eligible for compensation under a statutory workers’ compensation claim, you are generally required to lodge an application with the insurer within 6 months after the ‘entitlement to compensation’ for the injury arises. Your entitlement to compensation for a work-related musculoskeletal injury generally arises on the date you first attend your general practitioner or hospital seeking treatment for your musculoskeletal injury. It is important that you request your treating doctor to complete a Work Capacity Certificate during your initial attendance, as a Work Capacity Certificate must accompany your application for compensation. If you do not lodge a workers’ compensation application within 6 months after your entitlement to compensation arises, you may lose your entitlement to a statutory workers’ compensation claim. Time limit to pursue common law damages after a workplace injury Generally, there is a three (3) year time limit from when the circumstances first occurred which caused your musculoskeletal injury, to pursue a common law claim. If you do not commence a claim within the time limit, you may lose your entitlement to pursue a common law claim. Get help from a workers’ compensation lawyer If you’ve suffered a musculoskeletal injury at work, it is important to understand your rights and entitlements for workers’ compensation; both statutory benefits and common law entitlements. We recommend that you seek legal advice soon after your workplace injury to understand your rights and entitlements. Our workers’ compensation lawyers are highly experienced in all aspects of workplace injury claims. We will ensure we maximise any of your compensation entitlements, while you concentrate on health and wellbeing. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/august/workers-comp-for-musculoskeletal-injury/ Sun, 10 August 2025 00:00:00 If you’re an injured Queensland worker with an accepted workers’ compensation claim and you receive a Notice of Assessment, it is important to understand your rights and entitlements associated with that notice. In this article, we will explore the following: What is a workers’ compensation Notice of Assessment? When will I receive a Notice of Assessment? Your options after receiving a notice of assessment; Your right to a common law claim; What is a workers’ compensation Notice of Assessment? A Notice of Assessment is a formal document issued by WorkCover Queensland or your employer’s self-insurer. It outlines the lump sum compensation available to an injured worker due to permanent impairment. When will I receive a Notice of Assessment? In order to be eligible to receive a Notice of Assessment, your injuries must first reach what is referred to as maximum medical improvement and be considered stable and stationary. The terms ‘maximum medical improvement and ‘stable and stationary’ refer to the point at which an injured worker’s condition has stabilised to the extent that no further significant improvement is expected, even with ongoing medical treatment. To determine whether your injuries are stable and stationary, WorkCover or your employer’s self-insurer will arrange for your injuries to be assessed by an appropriately qualified medical specialist. If the specialist finds your injuries are stable and stationary, unless you have sustained a psychological injury, the specialist will provide you with a percentage rating for your permanent impairment referred to as a degree of permanent impairment. If you have sustained a psychological injury and your condition is assessed to be stable and stationary, you will be referred to a panel of three independent specialists referred to as the Medical Assessment Tribunal to assess your injury for a degree of permanent impairment. It is important to understand that you may request a degree of permanent impairment assessment if WorkCover or your employer’s self-insurer has not arranged one. Your options upon receiving a Notice of Assessment The Notice of Assessment contains several important elements: Details of the accepted workplace injury or injuries you have sustained; The degree of permanent impairment, which is displayed as a percentage (%), as assessed by an independent medical specialist (for physical injuries) or the Medical Assessment Tribunal (for psychological injuries); If you receive a degree of permanent impairment of 1% or greater, there will be an offer of lump sum compensation; and Information about your rights and options. Upon receiving your Notice of Assessment, you will need to consider and decide on one of the following options: Challenge the degree/percentage of permanent impairment As long as your injuries have not been assessed by the Medical Assessment Tribunal, you may, within twenty (20) business days of receiving your Notice of Assessment, elect to disagree with the degree of permanent impairment and request to be re-assessed by: a doctor as agreed by yourself and WorkCover; or the Medical Assessment Tribunal. There are three possible outcomes of requesting to be re-assessed for degree of permanent impairment. They include being assessed at: a higher degree of permanent impairment; the same degree of permanent impairment; or a lesser degree of permanent impairment. It is important to understand that if you disagree with your Notice of Assessment, you will not be able to accept the first Notice of Assessment at a later date. Accept/reject the Notice of Assessment If you agree with the degree of permanent impairment, or you have not responded to the Notice of Assessment within 20 business days, you will be taken to have agreed with the degree of permanent impairment. As outlined above, if your degree of permanent impairment is assessed at 1% or higher, there will be an offer of lump sum compensation within the Notice of Assessment. However, unless you receive a degree of permanent impairment of 20% or higher, you will need to make an irrevocable election to either: Accept the Notice of Assessment : If you accept the lump sum offer within the Notice of Assessment, you will lose any entitlement to pursue a ‘common law claim’ against your employer (see below); or Reject the Notice of Assessment : If you reject the lump sum offer within your Notice of Assessment, you will be unable to accept the Notice of Assessment in the future. Defer the Notice of Assessment : If you do not respond to your Notice of Assessment within 20 business days, while you lose entitlement to disagree with the degree of permanent impairment, your Notice of Assessment will be what is referred to as ‘deferred’, meaning that the Notice of Assessment will remain available for you in the future. If you receive a degree of permanent impairment of 20% or greater for an injury, you may elect to accept the Notice of Assessment and still maintain your entitlement to pursue a common law claim (see below). When assessing if your degree of permanent impairment is 20% or greater, it is important to understand that physical and psychological injuries are assessed separately, and the degree of permanent impairment percentages are not combined. For example, having a degree of permanent impairment of 10% for physical injuries and 10% for psychiatric injuries does not equal a total of 20%. To understand your full rights and entitlements to lump sum compensation before responding to the Notice of Assessment, we recommend that you seek legal advice upon receiving a Notice of Assessment. Your right to a common law claim Common law claims for work-related injuries typically arise when an employer has failed to provide a safe working environment which results in an injury to an employee. These claims allow injured workers to seek further compensation (by way of damages) if it can be substantiated that their employer’s negligence caused or materially contributed to their injury. GET ADVICE FROM A WORKERS' COMPENSATION LAWYER:  1800 659 114 When assessing whether an employer’s negligence caused a worker’s injuries, some relevant considerations include: were there unsafe work practices that caused or contributed to the injury? was proper training provided? was appropriate safety equipment available? were the injuries caused by another employee’s negligence? If it can be established that your employer’s negligence caused your injuries, you may have an entitlement to claim the following compensation: general damages for pain and suffering you have and may continue to experience; loss of income and superannuation entitlements you have incurred and may continue to incur into the future; medical, hospital and other treatment expenses you have incurred and/or may continue to incur into the future; If you have received a Notice of Assessment and you are unsure if it is a reasonable offer or if you may also be entitled to common law damages, you should seek legal advice from an experienced workers’ compensation lawyer prior to making a decision. Remember, if you accept the Notice of Assessment and your injuries are assessed at less than 20%, you will lose your right to seek common law damages against your employer. How Hall Payne Lawyers can help Our experienced workers' compensation team can: Review your Notice of Assessment; Explain your options in clear terms; Advise on the best path forward; Guide you through the entire process; Protect your legal rights. Get help from a workers’ compensation lawyer If you've received a Queensland workers’ compensation Notice of Assessment, don't make any decisions before getting expert legal advice. We offer flexible consultation options, including in-person meetings, phone discussions, and video calls. Contact Hall Payne Lawyers today to ensure you make informed decisions about your Notice of Assessment and secure the compensation you deserve. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: Common law claims after a workplace injury in Queensland Weekly payments if injured at work in Queensland Workers’ compensation lump sum payments in Queensland A guide to IMEs in workers’ compensation claims Queensland https://www.hallpayne.com.au/blog/rss/blog/2025/august/notice-of-assessment-qld/ Sun, 03 August 2025 00:00:00 Are you part of a group of people who have experienced harm or wrongdoing from the same source and that may entitle you to compensation? If so, a class action could be the perfect way to seek justice without the financial burden or risk of taking on the case individually. In this blog, we’ll explore how class actions work, when they’re the right choice, and how to get started. What is a class action? A class action is a legal process that allows a group of people who have suffered compensable loss caused by the same legal breach/issue to combine their claims into a single case. This could be anything from employment underpayments to consumer fraud. Instead of each person filing their own separate legal action in a court, a class action streamlines the process by consolidating all claims into one and allows a process to recruit other potential claimants. What is a representative party? To start a class action, one person must take on the role of the representative party (also known as the lead plaintiff). This person acts on behalf of the entire group, dealing with lawyers, making decisions about the case, and approving any settlement offers. Their role is critical, and they must always act in the best interest of the whole group, not just themselves. Are there any risks associated with being the representative/lead plaintiff in a class action? Being the lead plaintiff in a class action comes with some risks/burdens, which arise from the extensive time required on the case, public exposure, and emotional stress. Although these risks are inherent in all litigation, because the lead plaintiff is acting for and making decisions on behalf of the group, they can feel these pressures more acutely. Although there are some other risks, a competent and qualified legal team can mitigate or eliminate these. These include the risk of retaliation from the opposing party and orders against the lead plaintiff for legal costs if the case is unsuccessful. How does a class action work? You may be surprised to learn that a class action can be started for a group with as few as seven people. If you and others have been affected by the same legal issue, you may qualify to be part of or start a class action. The first step is therefore to form such a class, which can be done by various forms, including advertising and recruitment. The legal process of a class action then begins when the lead plaintiff files the proceeding in court. A class action can be filed in various courts, but in this article, we’ll focus on the  Federal Circuit and Family Court of Australia. As a group member, once the class action is filed, you’ll be automatically part of the action if you meet the group’s eligibility criteria. As part of the process, you’ll receive a notification about the case, including information about your rights, and a request to register so that you can receive updates from the firm. If you are included in a class but don’t want to be part of the class action, you have the option to opt out, but this means you will not benefit from a successful outcome. Who pays for a class action? One of the most significant concerns when considering legal action of any kind is the cost. Fortunately, with class actions, you likely don’t have to worry about paying upfront legal fees. Litigation funders typically fund class actions, meaning you won’t need to pay for legal costs as the case progresses. Hall Payne has existing relationships with a number of litigation funders. Ordinarily, you will start with a consultation with a qualified and competent lawyer. Most firms will charge you for that initial consultation, which is an opportunity for them to understand your matter. You may also be required to get written advice on the prospects. Once it is determined that you have good prospects of success, that there are sufficient members of the class, and a decision is made to proceed with a class action, from this point, the firm will handle the case, usually on a no-win, no-fee basis.   This means that you and other group members, including the representative party, don’t have to worry about paying for the case out of your own pocket. All costs are covered, making it much more accessible for those who couldn’t otherwise afford legal representation. So that the work can be performed, the usual arrangement is that a litigation funder will provide financial support for the legal case, covering costs like legal fees and expenses. If the case is successful, the litigation funder receives a percentage of any successful settlement or judgment, and the firm usually gets an uplift on its fees to compensate for the risk it took in doing that work. To be clear, this means that the litigation funder and firm bear the financial risk, meaning if the case is unsuccessful, the lead plaintiff doesn’t have to repay any of the funds used to run the case. How are class actions settled? Class actions usually settle through mediation, a negotiation process where both sides try to come to an agreement. However, if mediation fails, the case will proceed to court, where a judge will decide the outcome. Once an agreement is reached, the court must approve the settlement to ensure it’s fair to everyone involved. The court will also review any legal fees and payments to third-party funders to ensure that these are reasonable. The Court approves what is known as a Settlement Scheme, which outlines the amount of compensation and how it will be distributed to the group members, which can then often be a complex and lengthy process. Common types of class action cases in Australia A class action may be suitable when many individuals have been affected by the same wrongdoing. Here are some of the most common types of cases suitable for a class action: Employee underpayments : If a group of workers has been denied proper wages or benefits, they may be able to bring a class action to recover their unpaid wages; Sham contracting business practices : If a company has engaged employees as contractors to avoid legal responsibilities like paying minimum wages and leave entitlements; Not paying casuals leave entitlements : If workers are engaged as casuals with a regular pattern of work and have a firm advanced commitment to such work, they are actually permanent employees and are entitled to leave . Negligence : This occurs when an organisation or company’s careless actions cause harm to multiple people. For example, a company’s unsafe practices may lead to personal injury or environmental harm to a group. Mistreatment of vulnerable people : This might include cases involving abuse or neglect in places like nursing homes or hospitals. Unfair selling practices : If a company uses deceptive marketing or sales tactics, a class action can help consumers seek compensation. Should you opt-out of a class action? If you’ve been wronged and are part of a group for which a class action has been filed, we generally recommend that you do not opt-out of the case. If you choose to opt-out of a class action, you will not be entitled to any benefits from a successful outcome. If your circumstances are unique and you feel as though you should opt-out, you should seek legal advice before doing so. Conclusion Class actions provide an effective way for groups of individuals to take legal action against wrongdoers, whether for workplace violations, negligence, mistreatment of vulnerable people, or unfair selling practices. Class actions make it easier for individuals to seek justice without the upfront financial burden of a traditional legal proceeding. How to get legal help for a class action If you are part of a group that has been harmed by the same or similar wrongdoing, it’s crucial to seek legal advice. At Hall Payne, our experienced team is ready to assist in handling your class action from start to finish. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/july/class-actions/ Mon, 28 July 2025 00:00:00 Construction sites are inherently high-risk environments where workplace injuries are common. Injured workers may be entitled to workers’ compensation and, in many cases, common law damages. But when a subcontractor’s employee is hurt on site, does the principal contractor bear any responsibility? In a Court of Appeal decision (January 2025), the limits of a principal contractor’s duty of care were tested. This case offers valuable insights into workplace injury claims, appeals, and risk allocation on construction sites. In the significant ruling of Sawyer v Steeplechase Pty Ltd [2025] QCA 2 (handed down in January 2025), the Queensland Court of Appeal has upheld a Supreme Court decision that clarified the limits of the duty of care owed by principal contractors toward subcontractors’ employees, reinforcing key principles in workplace liability for injured workers. Chief Justice Bowskill (with whom Boddice JA and Bradley J agreed) affirmed that the principal contractor was not liable for injuries sustained by a subcontractor's employee during specialised work on a construction site. Incident that led to worker’s injury Mr Sawyer, an employee of Cretek Concreting, suffered a significant lower back injury on 22 August 2016 while working on a residential construction project in Ascot, Queensland. The project was overseen by principal contractor Steeplechase Pty Ltd trading as SW Constructions (SWC). Cretek Concreting had been subcontracted to perform specialised concreting tasks, including installing heavy steel mesh sheets, each weighing approximately 105 kilograms. The incident occurred during site preparations for concrete pouring, with four Cretek workers in attendance, including Mr Sawyer and his supervisor. While manoeuvring one of the mesh sheets, Mr Sawyer experienced lower back pain. He continued working despite the pain, but his condition persisted, and he experienced a further exacerbation or aggravation on 3 July 2017 while bending over to get a drink during a work break. Mr Sawyer was subsequently diagnosed with a lower back injury, as well as an aggravation of a pre-existing psychological injury. He lodged a statutory workers’ compensation claim , which was accepted by WorkCover Queensland, and benefits, including weekly payments and medical expenses , commenced. Worker pursues a common law claim Beyond statutory workers’ compensation entitlements, many injured workers have the right to pursue a common law claim for damages. These claims typically arise when an employer fails to uphold their duty of care, resulting in a preventable workplace injury. In industries like construction, where safety risks are heightened, establishing liability in such claims is critical. In this case, Mr Sawyer’s symptoms became too severe for him to continue working, and he eventually ceased working for Cretek. He then pursued a common law claim for damages, arguing that both Cretek (his employer) and SWC (the principal contractor) were negligent, and that their negligence caused his workplace injury. First instance decision – Supreme Court Queensland At first instance, in Sawyer v Steeplechase Pty Ltd [2024] QSC 142, Justice Crowley determined that SWC (the principal contractor) did not owe a duty of care to Mr Sawyer. The Supreme Court emphasised Cretek's role as a competent, specialised subcontractor responsible for its own safety systems, and SWC's lack of control over Cretek's specific work methods. While the claim against SWC was dismissed, Cretek were found liable for breaching their duty of care and ordered to pay damages, or compensation, in the sum of $781,082.09. Injured worker appeals Supreme Court decision Mr Sawyer challenged the trial judge's findings on two key grounds, alleging that: SWC did, in fact, owe him a duty of care; and SWC breached the duty of care they owed to him. Mr Sawyer argued that because SWC failed to ensure Cretek was competent to perform the required task safely, and that SWC's leading hand failed to intervene when allegedly observing dangerous activity on site, negligence ought to be found against them. Court of Appeal's analysis The Court of Appeal dismissed the appeal from Mr Sawyer and found that SWC did not owe him a duty of care for the injuries he sustained while in the employ of Cretek. Chief Justice Bowskill's judgment emphasised several crucial factors that supported the decision to dismiss the appeal and uphold the decision at first instance: Cretek was a specialist contractor The installation of polished concrete flooring required particular expertise, especially regarding mesh placement to prevent cracking. Evidence confirmed that SWC was "not licensed and not skilled to do slabs," while Cretek possessed both the necessary licensing and expertise. The Court rejected attempts to characterise the work as non-specialised by breaking it into component parts, finding this approach artificial. Since Cretek had the necessary skills and licenses, SWC was not responsible for supervising them. Established knowledge and relationship SWC had engaged Cretek for approximately ten years prior to the incident and reasonably considered them a reputable and competent concreting contractor. SWC had provided engineering plans specifying the SL81 mesh requirements before obtaining Cretek's quote, which Cretek were aware involved “heavier than usual” mesh sheets. It was not necessary for SWC to provide any further warnings to Cretek regarding the weight of the mesh sheets. Safety documentation The Court rejected arguments that Cretek's Safe Work Method Statement (SWMS), which only addressed lifting objects up to 55kg and did not address risks of lifting objects weighing more than 55kg, put SWC on notice of potential safety issues. Her Honour found that as a competent specialist contractor, Cretek was responsible for its own safe work systems. The fact that Cretek sent four workers to the site specifically because of the heavier mesh requirements demonstrated their awareness and capability to manage the risks. Site supervision The mere presence of SWC's leading hand and another worker on site did not create additional obligations, particularly as the work Cretek was contracted for was a self-contained activity. There was no evidence that SWC controlled Cretek’s system or work, nor any evidence that SWC observed any dangerous activity which would have enlivened a duty to intervene. Key implications for contractors and injured workers The outcome of this case reinforces several important principles: Principal contractors are not generally liable for injuries to subcontractors' employees when work is performed solely under the subcontractor's direction; Engaging competent specialist subcontractors can effectively limit principal contractors' liability; Clear communication of projects and plans can establish reasonable delegation of responsibility; The presence of principal contractor personnel on site does not automatically create supervisory obligations; and Subcontractors must take primary responsibility for implementing appropriate safety systems within their area of expertise. Conclusion Both the Supreme Court and Court of Appeal decisions establish clear boundaries around principal contractors' duty of care. While principal contractors maintain overall site safety obligations, these do not extend to supervising specialised tasks performed by competent independent contractors. This decision serves as a crucial reminder for businesses and contractors operating in and around the construction industry; principal contractors must ensure they engage competent subcontractors and provide clear project specifications, while subcontractors must take responsibility for implementing appropriate safety measures. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/july/principal-contractor-injury-liabilities/ Sun, 20 July 2025 00:00:00 In June 2025, we assisted an electrician in NSW who had been denied a contractor’s licence. With our assistance, our client obtained a great outcome and was ultimately granted a licence with minimal conditions. In this blog, we discuss the requirements of obtaining a contractor’s licence, how we assisted our client, and provide some advice for anyone who is currently seeking to obtain a contractor’s licence in NSW. Who needs a contractor licence in NSW? Tradespersons who do work where the total cost of labour and materials totals more than $5,000 (including GST) are required to hold a contractor’s licence in NSW. Although we focus on NSW in this blog, similar licencing schemes apply in some other Australian states as well. The following are some examples of contractor work that may require a licence: electrical; building; gas fitting; plumbing; plastering; roof tiling; bricklaying; fencing; carpentry; kitchen renovation; and structural landscaping. If you are not sure whether you need a licence or what sort of licence you need, we recommend that you seek guidance from Service NSW or the Building Commission NSW. What are the requirements? Prior to the grant of a licence, an applicant needs to show, among other things, that they are a fit and proper person to hold such a licence. The phrase ‘fit and proper’ refers to a person’s knowledge of the duties and responsibilities involved in holding a particular kind of licence as well as requiring them to be of sufficient moral character to be entrusted with the sort of work that the licence entails. In other words, to hold a contractor’s licence, you must: have the necessary qualifications and experience; and be the kind of person that a reasonable person would not have any concerns about engaging to do work for them. Tradespeople often have access to a person’s home. Because of this, it is especially important that they are trustworthy and honest. John’s matter Hall Payne Lawyers recently assisted a client in appealing a decision of the Building Commission NSW ( Commission ). John (a pseudonym) had recent criminal convictions when he applied for a contractor’s licence in the category of electrician. Because of his criminal record, the Commission asked him to provide additional information. John provided a response, but the Commission deemed that it was insufficient to explain his convictions, and his application for a licence was refused on the basis that he was not a fit and proper person. John appealed his decision internally but was unsuccessful. After this, he sought legal assistance from Hall Payne Lawyers. On reviewing John’s criminal history, and the context of his convictions, we advised John that they were not of such a serious nature as to prevent him from holding a contractor’s licence and that he had good prospects of having the Commission’s decision overturned. We then filed an appeal in the NSW Civil and Administrative Tribunal ( NCAT ). Once we had filed a statement and assisted John in gathering documentary evidence and several character references, the Commission determined that John should be granted a contractor’s licence. The matter was resolved without going to an expensive hearing. Advice for applicants for contractor licences If you are concerned that your criminal record might prevent you from obtaining a contractor’s licence, then we recommend you do at least the following things to prepare your application and supporting documents. Adequately explain your conviction Make sure to provide context of what occurred and any mitigating factors. Remember – you are trying to show that you are a person who can be entrusted to do the sort of work that the licence entails. If your convictions are not related to dishonesty and/or did not occur in the course of your employment, you should emphasise this fact. Get supporting documents If there are any documents that will support your version of events, then you should provide them to the Commission. For example, you may wish to obtain a written record of your convictions and sentences, or court documents that could support your case. Get started on this as soon as possible, as some documents (such as court transcripts) may take time to obtain. Get character references Character references are an essential part of showing that you are a fit and proper person. While references from family or friends are fine, you should try to obtain references from a recent employer or a community figure (such as a religious leader), as character references from unbiased persons of good standing will be much more persuasive. Make sure that anyone providing a reference is aware of why you need the reference. If they are unaware of your criminal convictions, their reference may not be worth very much. Seek legal advice at an early stage Most importantly, get legal advice at an early stage. Remember that if you are unsuccessful in obtaining your licence, this may have a significant impact on your earning capacity. Further, having legal assistance earlier rather than later might obviate the need to bring expensive legal proceedings if your application is refused. Hall Payne Lawyers employment law team can advise you about your prospects of success and can assist you with your application at any stage of the process.  * We have used a pseudonym to maintain confidentiality. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/july/contractor-licence-rejection-won-on-appeal/ Sun, 13 July 2025 00:00:00 We assisted our client with three separate TPD claims over six years ago. The claims were based on his mental health condition, which was preventing him from being able to work. At that time, two of the claims were accepted, with one being declined in 2019. This particular client had three active superannuation member accounts, each with a different superannuation fund. All of those member accounts held insurance cover for total and permanent disablement (“ TPD ”).  After we carefully reviewed each policy, it was established that he would be able to make a TPD claim against all three but it was imperative that we submitted these claims in the correct order. One policy included a clause which stated that a TPD benefit was not payable in circumstances where an insured member had already been accepted as totally and permanently disabled by another insurer. Due to that clause, we had to ensure that this claim was submitted and finalised first before proceeding with the other two claims. Mental health condition that led to TPD claims Our client was subjected to regular and ongoing workplace harassment and bullying, which caused the onset of depression and alcohol abuse. As a result, he has not been able to work since early 2016. His mental health continued to deteriorate over time. Several doctors had differing medical opinions regarding his actual diagnosis. Those opinions ranged from an adjustment disorder through to delusional psychosis. Our approach to appealing the insurer’s decision to deny the TPD claim At the time this claim was denied (over six years ago), we advised our client on the prospects of having the decision reviewed. He instructed us not to appeal that decision. He continued to be unwell and was also dealing with other extremely difficult personal circumstances at that time. When a TPD claim is denied, and you do not agree with that decision, there are options to appeal that decision. You can read more about this in our earlier blog, “What to do if your TPD or income protection claim has been rejected” . We encouraged him to advise us if his circumstances and/or health changed so we could look at the claim again for him at a later date. Why was this claim declined and the other two accepted? We spent a lot of time providing the insurer with additional information and submissions regarding the medical and other evidence in support of our client satisfying the policy definition of total and permanent disablement. That definition differed slightly from the other two policies as it used the phrase “unable ever to engage in any gainful occupation, business, profession or employment”. By comparison, the other two policies utilised the phrase “unlikely ever”. The insurer wouldn’t accept the bundle of evidence, preferring to rely on the report of an independent specialist who examined our client in early 2019. That specialist made a comment about the possibility of our client’s condition improving at some point in the future if he commenced and stuck to an optimal treatment regime. The insurer’s decision record acknowledged that our client was unlikely to return to work in the industry he was working in when he became unwell. Ultimately, their decision to decline his TPD claim was based on the fact that our client was 45 years of age and had another 20 years within which to receive treatment, improve his overall prognosis and then undertake occupational goals with the aim of returning to the workforce.  The insurer could not determine that he was “unable ever to engage in any gainful occupation”. Five years on – appeal commenced against the decision to deny the TPD claim Despite the denied TPD claim, we remained in contact with our client every six months or so to ensure he was ok. Fast forward five years, with a lot of things happening to our client in-between time. Our client continued to send us updated medical evidence. By the end of 2024, we had enough additional evidence which supported our original argument that even with alternative treatment, he was never going to be able to return to any form of suitable employment. Despite the passage of such a significant period of time and a complex set of personal circumstances, we prepared the updated medical evidence and new submissions for the insurer to review their original decision. In this particular client’s case, his original mental health condition did improve slightly, but he was never in a position to contemplate a return to the workforce on that basis. He had maintained recommended medication and treatment throughout that time.   Unfortunately, he was also diagnosed with Bipolar Affective Disorder, which further compounded his disability. TPD claim successful with a payout of $72,000 We were successful in our pursuit of his final TPD claim after such a long time. Having reviewed the updated medical evidence, the insurer accepted the claim, and our client was paid $72,000 in TPD benefits. Our client is now in a position where he has additional funds available to him to assist with his ongoing treatment requirements and to improve his overall quality of life. Get help with your TPD claim In most cases, it doesn’t matter how long ago your illness or injury prevented you from working. To be able to make a TPD claim against insurance held within super, you don’t need to hold the cover now, but you will need to have held the cover at the date that you were forced to cease working because of your ill health. At Hall Payne Lawyers , we assist clients to determine if they have a potential claim available to them and prepare it on their behalf to ensure it has the best prospects of succeeding. Our client’s example above shows that even in circumstances where a claim was already declined many years ago, if you have continued to be unable to work due to the same injury or illness, it may be worth seeking advice about the potential to have that decision reviewed. You will require supportive and current medical evidence to verify you meet any TPD policy definition. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/july/successful-tpd-claim-years-later/ Sun, 06 July 2025 00:00:00 Hall Payne Lawyers is delighted to have assisted a first-time father to recover his entitlement to paid parental leave as a primary carer and non-birth parent. Our clients, the employee and his Union (the RTBU), challenged his employer’s refusal to accept his application for paid parental leave, even though he had to provide care for the newborn baby while his wife recovered from childbirth complications. And he won! In early 2024, a bus driver in Tasmania applied for paid parental leave (PPL) from his employer, Metro Tasmania, claiming he was the primary carer for his newborn baby. The entitlement to PPL, in this case, was contained in the enterprise agreement that applied to the driver. The driver’s wife, who had just given birth via emergency caesarean section, was also receiving PPL through her employer, but was unable to care for the baby due to medical complications. The employer rejected the driver’s application for PPL. Union makes an application to the Fair Work Commission The Union, on behalf of the driver, then made an application for the Fair Work Commission (FWC) to deal with the dispute. At first instance, the FWC rejected the employer’s argument that the bus driver needed to establish that his wife (the birth parent) was incapable of providing primary care to the couple’s newborn child, finding that “ the reason the Bus Operator will be the primary carer is immaterial ”. The FWC accepted that our client was the primary carer, and in doing so also rejected a number of other arguments advanced by the employer, including challenges made to the evidence provided by our client to substantiate his claim as primary carer.   The FWC ordered the company to backpay the driver eight weeks of PPL. Employer seeks to appeal decision of the FWC The employer then appealed the decision, again arguing that because the mother was also receiving PPL, the father could not be the primary carer. However, the Full Bench agreed with the original decision and refused permission to appeal. What does “primary carer” actually mean? In this case, the mother was recovering from serious medical issues after childbirth and wasn’t able to take care of the baby as the couple had originally planned. That meant the father stepped in as the main caregiver, making him the primary carer during that time, even though both parents were technically on leave. In rejecting all grounds of appeal, the Commission concluded: The plain meaning of “primary” does not mean “only”. “…In the context of caring for a baby, to be a primary carer does not require the person providing care to be the sole carer, and nor does a primary carer cease to be so because assistance with caregiving is provided by a spouse or partner. The primary carer in the context of a child, is the person who principally provides care, or has overall responsibility for the provision of care, rather than a person who solely provides or is responsible for the provision of care.” The employer’s argument that the employee had to have “planned” to be the primary carer in advance was “absurd”, noting: “…a paid parental leave application may be made before the birth of a child on the basis that the parent who makes the application has chosen to be the primary caregiver while the other parent returns to work. However, a prospective parent having chosen to return to work, may be required to become the primary carer in unplanned circumstances.” A parent can be a primary carer while the child and other parent (in this case, the birth parent) are in hospital; It is not necessary to establish that the birth parent is incapable of providing the primary care in order to access the entitlement to PPL. You can read the full decision here: Metro Tasmania Pty Ltd v Australian Rail, Tram and Bus Industry Union [2025] FWCFB 124 (24 June 2025) Get help from an employment lawyer Paid parental leave offers benefits for both parents and children, including improved health outcomes, increased bonding time, and greater gender equality in the workplace and at home. In this case, the entitlement to paid parental leave that was in dispute was contained in an enterprise agreement that applied to the employment. The source of paid parental leave entitlements and the criteria for accessing paid parental leave can vary. If you are a new or expecting parent and think you’re not being treated fairly at work, get in touch. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/july/paid-parental-leave-win/ Wed, 02 July 2025 00:00:00 Construction sites expose workers to many potential hazards, including those related to manual handling, working at heights, interacting with electrical systems and operating near large moving machinery. For those injured on the job, worker’s compensation is a vital safeguard which can provide essential support and financial relief. In this blog, we explore the rights and entitlements for construction workers injured at work and seeking workers’ compensation benefits under the Queensland WorkCover scheme . In Australia, it was revealed by the Key Work Health and Safety Statistics Report 2024 that the construction industry accounted for 12% of all serious work-related injury claims between 2022 and 2023 , making it the second-highest sector for such claims during this period. These figures highlight the critical importance of workers understanding their rights to worker’s compensation and knowing when they might be entitled to pursue a common law claim for damages. Awareness and action are key to navigating these challenges and securing the support workers deserve. Common injuries on construction sites Due to the nature of the work on construction sites, there are specific types of injuries which are more prevalent in these types of workplaces. Falls from heights The Key Work Health and Safety Statistics Report 2024 revealed that the number of deaths attributed to falls from heights increased in 2023 , making them the second leading cause of overall worker fatalities in Australia. Electrocutions Construction sites can expose workers to faulty wiring, exposed power lines or the improper use of electrical tools, which contribute to many injuries each year. Repetitive strain and overexertion Heavy lifting and repetitive movements are common in construction workplaces. These movements can cause immediate injuries or, over time, contribute to musculoskeletal injuries. Struck-by accidents Moving vehicles or swinging equipment can cause serious injuries if workers are not aware of their surroundings and are not following safety protocols.  In 2023, 6% of workplace fatalities in Australia were made up of workers being hit by falling objects,  as detailed in the Key Work Health and Safety Statistics Report 2024. Employer responsibilities to provide a safe working environment Employers are obligated by law to provide safe working environments for their employees. In the construction industry, in particular, these generally include: conducting regular safety assessments to identify and address potential hazards; providing personal protective equipment such as helmets, gloves, and high-visibility clothing; ensuring workers are adequately and regularly trained and aware of relevant risks; Enforcing applicable safety protocols. Failure to meet these obligations can result in considerable legal consequences for employers both under work health safety laws (which can lead to significant fines) and workers’ compensation claims. A breach of the employer’s duty of care can lead to a potential claim for negligence (a common law claim, which we explore further below) if an employee is injured due to unsafe working conditions. Immediate steps to take if injured on a construction site If you are injured at a workplace construction site, ensure that your first priority is to seek medical attention. Beyond that, you should take the following key steps to ensure your financial well-being and legal rights are maintained. Report the incident to your employer Notify your employer or site manager as soon as possible in order to create an official record of the incident. Preserve evidence If it is safe to do so, take images/videos of the site where the injury occurred. Collate incident reports and any other relevant information or documentation, including contact details of any witnesses. Obtain a work capacity certificate Your doctor will complete a work capacity certificate which is required in order to lodge a worker’s compensation claim. A work capacity certificate is different to a standard sick leave certificate. It’s important that you advise your treating doctor that your injury is work-related. Lodge a workers’ compensation claim You have 6 months to lodge a claim with WorkCover Queensland (or your employer’s self-insurer). You should do this as soon as possible after the incident. You may be entitled to claim for reasonable medical expenses, past loss of income and a lump sum payment for permanent impairment. Seek legal advice Contact our experienced personal injury lawyers at Hall Payne Lawyers for a free consultation to understand your options and ensure you receive the full compensation you are entitled to. GET ADVICE FROM A WORKER'S COMPENSATION LAWYER:  1800 659 114 Workers’ compensation entitlements WorkCover Queensland statutory entitlements You may be eligible for statutory compensation through WorkCover or your employer’s self-insurer. Workers who are injured at work or on the way to work may be eligible for the following compensation: Medical expenses - Covering treatment costs, hospital visits, surgeries, or rehabilitation. Weekly payments - Providing financial support for lost wages during recovery. Lump sum payments - Compensating for permanent impairments which may result from the injury. If your injury was caused by your employer’s negligence, you might be eligible to make a common law claim for damages. Negligence can occur when an employer fails to meet their duty of care, such as not providing proper training, failing to maintain equipment, or ignoring known safety hazards. Common law claims due to negligence In addition to your statutory (no-fault scheme) entitlements outlined above, if your injury was caused by the negligence of another person or entity, you may also be entitled to common law damages. A common law claim can provide compensation for: Pain and suffering - Acknowledging the physical and emotional toll of your injury. Past Economic loss – Covering past lost income and superannuation. Future Economic Loss - Covering future anticipated lost income and superannuation if your injury will affect your earning capacity in the long term. Other damages - This might include compensation for specific lifestyle changes, treatment expenses or additional care needs which may arise from your injury. Pursuing a common law claim may help you secure financial support which is tailored to the specific impact of your injury. It is important to seek legal advice early to understand your options and maximise your entitlements. Importantly, if it’s determined that you have a permanent impairment (under your statutory entitlements), it’s crucial that you seek legal advice as soon as you receive any offer for lump sum compensation before accepting that offer to ensure you protect any future right you may have to a common law claim. GET ADVICE FROM A WORKER'S COMPENSATION LAWYER:  1800 659 114 Time limits for workers’ compensation claims in Queensland Strict time limits apply to both WorkCover claims and common law claims: Workers’ compensation claims : Must be lodged within six months from the date the entitlement to compensation arises. Common law claims : Typically, must be commenced within three years from the date the cause of action arose. It is important to act promptly and seek legal advice early as missing these deadlines can result in loss of your right to compensation. Get help from a workers’ compensation lawyer The construction industry plays a major role in Australia’s economy, but it often poses significant risks to workers. Construction workers are entitled to a safe workplace and have the right to take action if those rights are breached. If you have been injured while working on a construction site, don’t navigate the process alone. Contact Hall Payne Lawyers for expert legal advice tailored to your situation. Our team is here to ensure you receive the support and compensation you deserve. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/june/workers-comp-construction-qld/ Sun, 29 June 2025 00:00:00 If you have a criminal record, it can be daunting to look for work. It is hard to know whether to disclose your criminal record on job applications and how much detail you should provide to a prospective employer. This blog will discuss the circumstances where you are required to disclose a criminal record and what protections are available to you in your employment if you do have a criminal record.   What is a criminal record? A criminal record is a formal record of the offences you’ve been convicted of, either through a guilty plea or a guilty verdict. If you have been convicted in multiple Australian states, you might have separate records in each state.  What is a spent conviction? A spent conviction is a criminal conviction that has lapsed after a period, which results in it being removed from a person’s criminal record. The idea behind spent convictions schemes is to allow former offenders to ‘wipe the slate clean’. There are differences across jurisdictions as to which convictions can become spent. You are not required to disclose your criminal conviction for any purpose if it does not form part of your criminal history. However, there are exceptions. Certain jobs may require you to mention your criminal history even if your conviction is spent. This includes police officers, corrective services officers, Justices of the Peace, teachers, security guards, licensees, lawyers, and electoral candidates. Do I have to tell my employer about my criminal record? In Australia, there is generally no law requiring applicants to tell potential employers about their criminal record, even if it might affect the employer's decision to hire them. Only where legislation requires disclosure of a criminal record is an applicant required to disclose the information. For example, if the job requires working with children or for certain jobs in the defence or security industries. For some jobs you are required to disclose a criminal record in order to obtain or retain a professional registration, for example, health practitioners (see below example). You should note that if an employer asks you about your criminal record, and you have criminal convictions that are not spent convictions, you should disclose them. Failure to disclose may be considered fraud or misrepresentation.             Nurse engaged in professional misconduct by failing to disclose criminal record In the case of Nursing and Midwifery Board of Australia v Dunjey , an enrolled nurse was found to have improperly obtained registration by failing to disclose to the Nursing and Midwifery Board of Australia that she had been charged with criminal offences. In 2019, she was convicted of obtaining a financial advantage by deception. The criminal conduct was particularly serious as it was deliberate, continued over a relatively long period of time and involved large sums of money (just below $100,000). By failing to disclose her conviction and providing false or misleading information to the Board, the nurse was found to have engaged in professional misconduct. She was reprimanded, and her practice was subject to certain conditions . Her registration might have been suspended if not for certain mitigating factors. In Queensland, if your conviction is spent, you cannot be forced to disclose your conviction. If you are asked about whether you have a criminal record in relation to a spent conviction(s) you are entitled to answer that question ‘no’. There are exceptions to this in relation to applications for certain kinds of employment, for example police.  Do I have to tell my employer that I have been charged with a crime or offence? If you are charged with an offence while you are employed, there is no blanket rule requiring you to inform your employer. However, depending on the crime you are charged with, you may be required to notify a regulatory body. You should be aware that in certain circumstances, you need to disclose if you are charged with certain offences, even if you were not convicted or found guilty. If you are making an application where candour is important, it is more likely you would be required to disclose something like this. Normally, this is a requirement of professional regulatory bodies. For example, if you are a health practitioner, you may be required to notify the relevant board of the Australian Health Practitioner Regulation Authority. In Queensland, if you hold a Blue Card (related to working with children), you may be required to notify Blue Card Services. These bodies typically have an obligation to notify your employer. Additionally, if you work in the public service, you are required to immediately notify your employer of a charge or conviction. Can an employee be dismissed due to their criminal record? Some employment contracts contain a clause stating that you may be terminated without notice if you are charged with or convicted of a crime that is likely to bring your employer into disrepute. Whether a clause of this kind will be enforceable against you if you are charged with a crime will depend heavily on your circumstances. In particular, it depends on whether the crime you are charged with has any link to your employment. There might be a clear link, for example, if you are charged with a crime alleged to have been committed while you were at work (like fraud), or the character of the crime ties in with your work, even if it was committed in your personal time. Unfair dismissal is where an employee is dismissed in a harsh, unjust or unreasonable manner. There are several cases where employees have been unfairly dismissed as a result of their employer finding out about their criminal record.   In the case of Kelvin Njau v Superior Food Group Pty Ltd , the Fair Work Commission ruled that there was no valid reason to dismiss an employee because of his criminal record. The employer had not made it a condition of employment that the employee must not have a criminal record. Additionally, such a condition could not be imposed unless it was directly related to the ‘essential requirements of the job’. Workplace discrimination due to a criminal record Whether it is lawful to discriminate against a person due to their criminal record depends on the state or territory law that applies. Discrimination protections in the NT and Tasmania In the Northern Territory and Tasmania, it is unlawful to discriminate against a person in the area of employment on the basis of “irrelevant criminal record”. The definition of irrelevant criminal record differs slightly between NT and Tasmania, but they have the following in common: ‘a record relating to arrest, interrogation or criminal proceedings where – further action was not taken in relation to the arrest, interrogation or charge of the person; or a charge has not been laid; or the charge was dismissed; or the prosecution was withdrawn; or the person was discharged, whether or not on conviction; or the person was found not guilty; or the person's conviction was quashed or set aside; or the person was granted a pardon; or the circumstances relating to the offence for which the person was convicted are not directly relevant to the situation in which the discrimination arises’ In the Northern Territory you are able to make a complaint to the Northern Territory Anti-Discrimination Commission. In Tasmania, you may lodge your complaint with Equal Opportunity Tasmania. If the Commission accepts the complaint, it will hold a conciliation. If that conciliation is unsuccessful, the matter may be referred to the relevant tribunal. The tribunal has the power to award compensation or other non-monetary remedies if it is satisfied that the discrimination has taken place and was unlawful.  Discrimination protections in other states and at a Commonwealth level Unfortunately, in other states and territories, and federally, there is no law which makes it unlawful to discriminate against someone on the basis of irrelevant criminal record. This means an employer can treat you differently and less favourably than a person without a criminal record. If a person is unable to fulfil the inherent requirements of the job because of their criminal record, this will not constitute discrimination. This is known as the ‘inherent requirements exception’. The Australian Human Rights Commission may investigate complaints of discrimination on the basis of irrelevant criminal record and hold a conciliation conference between an employee and employer.  If the AHRC finds that discrimination took place, it cannot require an employer to pay any compensation or take any other steps to remedy to the discrimination.  Get help from an employment lawyer The law about your obligations to disclose a criminal conviction to potential or current employers can be complex and confusing. If you require assistance, please do not hesitate to contact one of our employment lawyers.   Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/june/criminal-records-and-employment/ Mon, 23 June 2025 00:00:00 Common law claims in personal injury offer a pathway for individuals to seek and obtain compensation for loss caused by another party’s negligence. For workers who have been injured on the job, understanding your rights to pursue a common law claim for workplace injuries is essential to ensuring you receive the compensation you are entitled to. Suffering a personal injury at work can have a life-changing impact on your health, finances, and overall well-being. While statutory benefits under Queensland’s workers’ compensation scheme can cover costs such as lost wages and medical expenses , it may not account for the full extent and broader impact of your injuries. A common law claim may provide more comprehensive compensation where a work-related injury has been caused by negligence. What is a workers’ compensation common law claim?  Common law claims for work-related injuries typically arise when an employer has failed to provide a safe working environment which results in an injury to an employee. Queensland laws allow for two types of workers’ compensation claims: Statutory claims: This type of claim operates under a no-fault scheme, which provides injured workers who qualify for the scheme with interim payments to cover expenses such as medical treatment related to their injury and lost wages, regardless of who was at fault for their injury. Common law claims: These claims allow injured workers to seek further compensation (by way of damages) if it can be substantiated that their employer’s negligence caused their injury. The following are just some examples of situations where workplace negligence may lead to a common law claim: Unsafe working conditions: failure to provide proper equipment, personal protection equipment or failure to maintain a safe working environment; Lack of proper training: inadequate training or supervision can lead to unsafe practices or workplace accidents; Failure to follow safety protocols: disregarding or violating workplace safety protocols, regulations or procedures; and Vicarious liability: employers can be found liable for the negligence of their employees if that employee was acting in the course of their employment. Time limits for lodging a workers’ compensation common law claim It is important that injured workers are aware of the strict time limits which apply to lodging common law claims. In Queensland, the following time limitations include: Lodgement of a statutory workers’ compensation claim Prior to pursuing a common law claim, injured workers must have an accepted statutory workers’ compensation claim with WorkCover Queensland or their employer’s self-insurer. Ordinarily, a statutory claim must be lodged within six months from the date of injury or within 6 months from the date on which a worker first consulted a relevant health practitioner if the injury has been sustained over a period of time. If a statutory claim is accepted, weekly payments and medical expenses will usually continue until a worker’s injuries are deemed ‘stable and stationary’ (that is, maximum medical improvement has been achieved). If an injured worker has suffered a permanent impairment because of their injuries, they should undergo further medical assessment to determine the degree of permanent impairment (DPI). Based on this DPI, a lump sum compensation offer may be made. If the worker accepts this lump sum, it is important to understand that in doing so, they will give up their right to make a common law claim. Notice of claim – common law claims A common law claim must generally be filed within three years from the date of injury. It is critical to obtain legal advice early in relation to these claims, as failing to adhere to these timeframes could result in losing your right to claim. In particular, if a worker receives an offer of lump sum compensation, they should seek legal advice BEFORE accepting that offer. GET ADVICE FROM A WORKERS' COMPENSATION LAWYER:  1800 659 114 The benefits of pursuing common law damages after workplace injuries Common law claims can allow injured workers to claim for more compensation (monetary value) than the statutory claim process provides. With a common law claim, you may be able to claim for the following: Full loss of earnings: recovery of both past and future economic loss resulting from the injury, including the impact on future career advancement and earning potential; Pain and suffering: damages may be awarded for the impact of both physical and psychological symptoms resulting from the injury; Medical attendances and rehabilitation: compensation for past and ongoing treatment, rehabilitation, and in some circumstances the need for assistance with day to day living. What to expect during the process of making a work-related common law claim The average common law claim usually lasts from 6 to 18 months. This process can be complex and overwhelming for some injured workers. Manage your expectations by understanding some key stages of a common law claim. Medical assessments You may have to attend multiple medical assessments throughout the common law claim process. These assessments are conducted by your own treating doctors and/or by independent practitioners, commonly referred to as an Independent Medical Examiners (IME) , depending on the purpose of the assessment. These assessments play a pivotal role in supporting your claim and assist in determining the level of compensation you may be entitled to receive.  Pre-proceedings and negotiations After your injuries are assessed, the insurer or your employer’s legal team will review your claim and determine whether they accept liability. Both parties will typically engage in pre-court negotiations often facilitated through compulsory conferences and offers of settlement. These meetings will often involve your lawyer and/or other legal counsel, the employer’s representatives, and the insurer. If an agreement is reached, the claim can be resolved without the need for a court hearing. Court proceedings If a settlement cannot be reached during pre-court proceedings, the matter may proceed to litigation in court, where formal court documents must be filed, legal arguments and expert witness reports are utilised, and a judge will determine the outcome. Get help from a workers’ compensation lawyer At Hall Payne Lawyers, we are here to support you through the complexities of statutory workers’ compensation and common law claim processes. Although you may have already lodged your claim for statutory entitlements and you benefits have commenced, the common law process is highly complex. It is important that you seek legal advice if you are eligible for common law damages. Our experienced personal injury lawyers are dedicated to ensuring you receive the compensation which you are entitled to. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/june/work-injury-common-law-claims-qld/ Sun, 15 June 2025 00:00:00 The professional relationship between a health professional and a patient is not a friendship; it is a therapeutic relationship directed by the patient’s health needs. The community entrusts health practitioners to act in the best interest of those in their care, and that their care will be based on an assessment of their specific needs. In this blog, we look at the professional boundaries expected of Australia’s health professionals and the consequences of a breach of those boundaries. Who regulates Australia’s health professionals? Health professionals are some of the most trusted and respected people in the community. Roy Morgan’s regular Image of Professions Survey results consistently show that Australians hold health professionals such as nurses, pharmacists, doctors and dentists in high regard. This is due to the high standard such professions are held to as part of obtaining and maintaining their professional registration.   In Australia, health professionals are regulated by a network of National Boards. The peak body for these Boards is the Australian Health Practitioner Regulation Agency (Ahpra). In addition to the National Boards and Ahpra, many states and territories also have statutory complaints bodies which cover people in these professions, as well as other kinds of health workers, which are not required to be registered with Ahpra (for example, disability support workers, counsellors or massage therapists). Ahpra and these other complaints bodies are empowered to receive and act on complaints about health professionals . Patients expect health professionals to act in their best interests and to respect their dignity. A breach of professional boundaries in many cases will also be a violation of the practitioner’s professional responsibility (see Codes of Professional Conduct and Code of Ethics ). It does not matter if the boundary violation was inadvertent or on purpose, thoughtless or altruistic. What are professional boundaries for health practitioners? Professional boundaries are where a health practitioner creates a clear separation between their duties to a patient to meet their health needs and the professional’s own personal views, experiences, feelings and relationships. Creating this defined separation protects the space between the professional’s power and the patient’s vulnerability. They are the borders that mark the edges between a professional, therapeutic relationship and a non‑professional or personal relationship between a health professional and a person in their care. When a health practitioner crosses a boundary, they are generally behaving in an unprofessional manner and misusing the power in the relationship. What is a boundary violation between a health practitioner and patient? Boundary violations occur when the practitioner behaves in a way which undermines or blurs the separation between the professional and personal in a relationship with a patient. Conduct on the part of a health professional that will be considered to be a boundary violation can include: engaging in a romantic or sexual relationship with a patient or former patient; breaches of patient confidentiality or privacy; following a patient or engaging with a patient on social media or through personal telephone communication; accepting gifts or benefits from patients or their families; lending money to or borrowing money from a patient; excessive personal disclosure to a patient; sexual harassment; and flirtatious communication, employing sexual innuendo, off‑colour jokes or offensive language. Conduct of this kind can be considered professional misconduct or unprofessional conduct . There is a public interest in investigating and punishing health professionals for conduct which violates professional boundaries. This is because there is an inherent power imbalance between vulnerable patients and the practitioner providing care. If there is a breach, each circumstance would need to be assessed on the gravity of the departure from expected professional standards. The investigating body or a disciplinary tribunal will also consider mitigating circumstances and the professional’s insight into their conduct. What can happen if a health practitioner breaches professional boundaries? In serious cases, health practitioners may be liable for disciplinary action brought by the relevant National Board or regulators, such as the Queensland Office of the Health Ombudsman or New South Wales Health Care Complaints Commission for unprofessional conduct or professional misconduct. Regulators bring such ‘charges’ in a tribunal which has the power to: suspend or cancel a practitioner’s registration; impose a fine; and leave the health practitioner liable for legal costs in some cases. Where adverse findings are made against a practitioner following a tribunal hearing, those findings will ordinarily be public. The public nature of these findings can make them very disruptive to a professional’s career and can even be career-ending. Any reprimand, suspension or condition placed onto a professional’s Ahpra registration will also be visible to anyone searching the professional’s name on the publicly available register. Case review – health professional has registration suspended In Health Ombudsman v O’Reilly [2021] QCAT 362 , the health professional developed a friendship with one of her patients. That friendship was a longstanding one, and the patient eventually instructed a solicitor to make the health professional the sole beneficiary of his will. The health professional was informed of this by the patient. Upon learning this, she attempted to dissuade the patient from making her a beneficiary of his estate. There were also attempts by the health professional to end the treating relationship, however, the treating relationship resumed based on an assurance by the patient that he had decided to remove her as a beneficiary. The Tribunal decided to impose a reprimand against the health professional and to suspend her registration for three months. This case illustrates that it is not just sexual conduct or conduct where a practitioner deliberately attempts to gain a benefit from their relationship with a patient that will attract the imposition of a penalty against a practitioner. Subject to an Ahpra notification or complaint? If you’ve received an Ahpra notification or complaint, do not delay seeking advice! Hall Payne Lawyers has a team of experienced lawyers who can provide advice and representation to you and help you get through the stressful process following an Ahpra notification or complaint. We see too many health practitioners who have tried to go it alone before seeking advice and suffer adverse outcomes. Health practitioners who get advice early on have the best outcomes. If you are facing disciplinary action for actions which constitute a breach of professional conduct or code of ethics, it is vital you seek early assistance from your union or a lawyer experienced in health law . Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Further reading – Health Law articles Immediate action against health practitioners Ahpra framework to manage vexatious complaints against health practitioners Making statements over the phone to Ahpra https://www.hallpayne.com.au/blog/rss/blog/2025/june/health-professionals-boundaries/ Wed, 11 June 2025 00:00:00 If you're navigating the workers' compensation system in Queensland , you may receive notice to attend an Independent Medical Examination (IME). Understanding what this means for you and your rights as an injured worker is crucial for managing your claim effectively. When might an Independent Medical Examination (IME) be requested? Unlike visits to your treating doctor , IMEs are specifically arranged by your workers' compensation insurer to obtain an independent medical opinion about your condition. The examining doctor's role is to provide an unbiased assessment rather than ongoing treatment or care. Workers' compensation insurers may request an IME for various reasons throughout your claim. These might include: gathering expert opinions during the initial claim assessment; evaluating proposed medical procedures; assessing your capacity to return to work; or determining the long-term impacts of your injury. The examination could also be necessary to review your rehabilitation progress or examine the connection between your work duties and injury. Key things to know about IME appointments When an IME is required, your insurer will send you an official notification containing crucial details about the examination. This includes information about the specialist who will assess you, the location and timing of the appointment, and the specific purpose of the assessment. Understanding these details is important, as the examination's purpose will influence how you prepare and what information you should take to the appointment. For example, it may be helpful to have available a comprehensive list of your treatments and medications. Do I have to attend an IME during my workers’ compensation claim? The short answer is yes. In most cases, you are obliged to attend an Independent Medical Examination (IME) when requested by WorkCover Queensland or your employer's workers' compensation insurer. This requirement is established under section 135 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) (‘the Act’), which gives insurers the right to request you to be independently examined. Can I refuse to attend an IME? While attendance at an IME is required by the Act, the law does recognise certain exceptions. A refusal to attend may not lead to consequences if you are considered to have a "reasonable excuse”. What constitutes a reasonable excuse varies case by case, but the circumstances must be genuinely compelling to justify non-attendance. If you are considering refusing to attend an IME and you believe you have a “reasonable excuse”, you should seek legal advice first to ensure your workers’ compensation rights and entitlements are not adversely affected. GET ADVICE FROM A WORKERS' COMPENSATION LAWYER:  1800 659 114 Consequences of non-attendance at an IME It's important to understand that there are serious consequences for failing to attend or genuinely participate in the medical examination. WorkCover Queensland or your employer's workers' compensation insurer can suspend benefits like weekly payments or medical treatment expenses if you: fail to attend the medical examination without a reasonable excuse; attend but refuse to be examined; obstruct or attempt to obstruct the examination. Preparing for and attending your IME Before the examination, confirm your travel arrangements and gather all relevant documentation. During the examination, remember that the IME doctor's role is assessment rather than ongoing care. Communicate clearly and honestly about your condition and its impact on your daily life and work capabilities. Document your experience after the examination, particularly if you need to discuss it with your lawyer. It is also important to refrain from posting on social media about your ongoing claim . After the IME Following your IME, the examining doctor will prepare a detailed report for your insurer. While this report goes directly to the insurer, you have options for accessing this information. The findings will guide your insurer's decisions about your claim, and your treating doctor may need to review the assessment results to adjust your treatment plan accordingly. Professional legal support if required to attend an IME The IME process can present challenges. If you require professional help navigating these challenges, or if you have failed to attend an IME, please speak to our experienced team at Hall Payne Lawyers. We specialise in helping clients understand their rights and navigate workers' compensation procedures effectively. Connect with one of our workers’ compensation lawyers We're here to assist with your workers' compensation claim, no matter what the issue may be. Reach out to discuss your situation with our specialists. We offer flexible consultation options, including in-person meetings, phone discussions, or video calls to suit your preferences. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/june/ime-queensland-workers-compensation/ Sun, 08 June 2025 00:00:00 If you have suffered personal injury and loss due to the negligence of another person or entity, you may have an entitlement to sue for common law damages to recover compensation for the injuries sustained. In Queensland, common law claims can be pursued as a result of: a workplace injury ; a motor vehicle accident ; medical negligence ; injuries in a public place (public liability claims); and It is important to understand that different legal frameworks apply depending on the circumstances of your accident, and important time limits apply. What is a common law claim? A common law claim is a litigation process where you can claim compensation for damages and loss incurred due to negligence. If you cannot establish negligence against the person or entity responsible for your injuries, you will unlikely be successful in a common law claim. Establishing negligence is entirely dependent on the individual circumstances which caused your injury. To establish negligence, generally speaking, you must establish that the person or entity that injured you owed you a duty of care and that their acts or omissions breached that duty of care. In Queensland, you are owed a duty of care in a broad range of circumstances, including but not limited to: whilst carrying out your employment duties; when you are a pedestrian or cyclist, as well as a driver or passenger in a vehicle; when engaging a health practitioner; whilst undertaking activities in a public place, for example, shopping centres, restaurants, rental and holiday accommodations, schools, parks and reserves etc. What compensation can I recover in a common law claim? When pursuing a common law claim, there are different types of compensation you can claim for, which are referred to as heads of damage. The main heads of damage you can claim for include: pain and suffering known as general damages; economic loss from the date of injury and possibly ongoing into the future; loss of superannuation from the date of injury and possibly ongoing into the future; medical treatment, rehabilitation and travel expenses arising as a result of the injuries you sustained and may continue to incur into the future; paid or unpaid care, often referred to as gratuitous care, provided to you since the date of injury and possibly ongoing into the future. The amount of compensation payable in a common law claim varies greatly and depends on a number of factors unique to your specific injury. Will I need to go to court if I commence a common law claim? Only a very small portion of personal injury common law proceedings result in a trial. In Queensland, before you can attend court for a common law claim, there are different pre-court processes which apply depending on the circumstances of your injury. Workers’ compensation common law claims If you are injured at work, your claim will be governed by the Workers’ Compensation and Rehabilitation Act 2003 . This legislation outlines the process you must follow before you can pursue a common law claim. To be able to pursue a common law claim for a workplace injury, you must have: an accepted workers’ compensation claim with WorkCover or your employer’s self-insurer; and received a Notice of Assessment. Once you have satisfied these two key criteria, you may commence a common law claim by lodging a notice of claim for damages and completing the pre-court processes. Motor vehicle accident common law claims If you are injured by a motor vehicle, your claim will be governed by the Motor Accident Insurance Act 1994 . To be able to commence a common law claim, you must: obtain a CTP medical certificate from your treating doctor; and lodge a complying notice with the insurer, which informs the insurer of your intent to pursue a claim for damages. Medical negligence, public liability and abuse compensation claims If you are injured in circumstances that are not work-related or vehicle-related, your claim will be governed by the Personal Injuries Proceedings Act 2002 and the Civil Liability Act 2003 (Qld). To pursue a common law claim, you must first serve a complying part 1 notice of claim on the at-fault person or entity within the required timeframes as well as complete the pre-court process. A key requirement of all the pre-court processes is for the parties to participate in a compulsory conference, for the purposes of seeking to settle your claim without the need for commencing court proceedings. If you do not settle your claim at the compulsory conference, you will then be required to commence proceedings in court. How long does a common law claim take? The length of time for a common law claim is entirely dependent on the individual circumstances for each claim. There are several factors that influence the length of time to resolve a common law claim, including: the injury you sustained and the severity of the injury (every injury is different, and although many injuries will start to stabilise in the months following an injury, some will take much longer); the circumstances giving rise to your injury (depending on which legislation governs your claim, different timeframes for pre-court processes apply); whether a settlement can be agreed upon or whether your matter has to proceed to trial. Time limits for making a common law claim in Queensland It is important to note that there are different timeframes applicable depending on the circumstances of your personal injury. In Queensland, you generally have three (3) years from the date on which a cause of action arises to commence a claim. This is referred to as a limitation period. If you fail to protect your limitation period prior to its expiry,  You may lose your right to claim compensation for your injury. Limitation periods can be complex. It is highly recommended you seek legal advice as soon as possible after your injury if you intend to seek common law compensation. Get help from a personal injury lawyer If you have been injured due to the fault of another person, it is recommended you seek legal advice to understand your rights and entitlements in relation to a common law claim. Our personal injury lawyers are highly experienced in progressing common law claims. We will ensure we maximise any of your compensation entitlements, while you concentrate on health and wellbeing. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/june/suing-for-personal-injury-qld/ Sun, 01 June 2025 00:00:00 Occupations that require employees to work in hot or humid environments can cause serious health risks, and the risk and severity of heat-related illness should not be underestimated. Heat-related illness should be taken seriously by employers as workers who suffer health-related illnesses may be entitled to workers’ compensation benefits as a result of the injury. Employers could be exposed to breaches of work health and safety laws. A safe system of work should be implemented to manage such safety hazards. This article will outline why it is important for employers and employees to understand the risks of working in hot and humid environments, ways to minimise the danger of workers suffering a heat-related illness or injury and workers’ compensation rights if they have sustained such an illness or injury at work. Occupations commonly exposed to heat Working in hot and humid environments poses significant health and safety risks to workers, which can either be mild, severe or, in some serious cases, stroke or fatality. The risk to workers is not simply related to the temperature; rather, the environment to which a worker is exposed is relevant. While heat-related illnesses are seen as more prevalent among people working outdoors, workers in indoor settings are also vulnerable. Common outdoor occupations with exposure to heat construction workers; mining workers; energy and infrastructure workers; road workers; agricultural workers; and other tradespersons. Common indoor occupations with exposure to heat manufacturing workers, for example foundry and sheet metal industries; hospitality workers, particularly those working in hot kitchens; commercial laundry workers; and warehouse workers. Common heat-related illnesses Heat rash and cramps These are considered the least serious heat-related illnesses. After working in heat, employees may experience skin irritation due to profuse sweating or muscle cramps and spasms as a result of dehydration. Heat exhaustion This is a significant heat-related illness which occurs when the body has lost too much water and salt due to significant exposure to heat. The common symptoms of heat exhaustion include feelings of weakness, dizziness and/or fainting, and nausea and/or vomiting. Heat stroke This is a serious illness which restricts the body’s ability to provide blood flow to internal organs and, left untreated, can potentially be fatal. In addition to the symptoms of heat exhaustion, a person suffering from heat stroke may present with signs of agitation and confusion, slurred speech and/or loss of consciousness. If a worker is suspected to be suffering from heat stroke, medical attention should be sought urgently. Workers who suffer illness/injury due to working in hot and humid environments and require medical attention and/or time off work should lodge a workers’ compensation claim . Other injuries as a result of heat exposure at work In addition to potentially suffering a heat-related illness, working in excessive heat can lead to safety hazards, which could potentially cause other physical injuries. For example: profusely sweating may cause workers to slip or lose their grip, which can cause musculoskeletal injuries; or prolonged exposure to a hot environment can also lead to reduced concentration, which could possibly result in workers making more mistakes, putting them at a potential risk of injury. If you have suffered an injury or illness as a result of excessive heat conditions at your workplace and have required medical treatment and/or time off work to recover, you may make an application for workers’ compensation with WorkCover Queensland or your employer’s workers’ compensation self-insurer, seeking workers’ compensation benefits. Employer’s responsibilities for employees working in hot conditions Employers have a legal responsibility to protect their workers from the risks of harm to their health and safety and to minimise these risks as is reasonably practical. Measures which can be undertaken by employers to minimise the risks of their workers’ suffering from a heat-related illness or injury include, but are not limited to: ensuring all workers have access to cool drinking water; scheduling work to be completed during cooler parts of the day, particularly for strenuous and physically demanding work; providing a shaded and cool area close to worksites so employees can rest away from the heat; and providing workers with sunscreen and PPE that is sun-safe and breathable. While employers owe their workers a significant duty to minimise risks of harm and injury, employees also have a personal responsibility to take reasonable care of their own health and safety whilst undertaking their employment duties. When working in excessive heat, workers should follow their employer’s health and safety policies and procedures and seek medical treatment promptly if suffering from a heat-related illness. Options if your employer is not providing a safe working environment If you believe your employer is not doing enough to address the risks of heat-related illnesses or injuries in your workplace, it is important to notify your manager or health and safety representative of your concerns. If you believe that, even after you have raised your concerns, your employer is still not addressing the issue, you should speak with your union for advice on how to escalate the matter and see tangible changes in the processes at your workplace to address the significant health and safety risks associated with working in excessive heat. In Queensland, there is no maximum temperature at which employers are required to stop their employees from undertaking their work. However, the Queensland Workplace Health and Safety website provides a Heat Stress (Basic) Calculator which considers factors such as humidity percentage, ventilation, availability of fresh drinking water and other temperature controls to help identify the risk of heat-related illnesses in a workplace. Workers’ compensation for heat-related illnesses If you have suffered a heat-related illness or injury due to working in excessive heat and had to take time off work as a result, you may be entitled to make a claim with WorkCover Queensland or your employers’ self-insurer. If your workers’ compensation claim is accepted, you may be entitled to the following statutory benefits: Weekly payments for lost wages ; Any medical and rehabilitation expenses related to the injury or illness ; Expenses relating to travelling to medical and rehabilitation treatments; and A lump sum payment for permanent impairment. In addition to your statutory entitlements, if your heat-related illness or injury was caused by your employer’s failure to take measures to minimise the risks of working in excessively hot or humid environments, you may be able to bring a common law claim against your employee for negligence. This is a complex process, so it is important to discuss the prospects of your case with one of our experienced lawyers as soon as possible. If a worker dies due to a workplace injury (including a heat-related injury or illness), an eligible dependant may be able to claim workers’ compensation death benefits. An eligible dependant is defined in the Workers’ Compensation and Rehabilitation Act 2003 . Get help from a workers’ compensation lawyer At Hall Payne Lawyers, we understand that all employees have the right to work in an environment where their health and safety is protected and prioritised. If you have suffered a heat-related illness or injury at work, speaking to one of our lawyers will ensure your workplace rights and entitlements are protected and that you receive the compensation you are entitled to.   Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au More articles – workers’ compensation Queensland Steps to take after a workplace injury in Queensland Rejected workers compensation claims in Queensland Workers’ compensation journey claims when travelling to and from work https://www.hallpayne.com.au/blog/rss/blog/2025/may/working-in-hot-conditions/ Sun, 25 May 2025 00:00:00 After a workplace injury, we understand that it is a difficult time in your life and quite stressful. However, along with looking after your health and well-being, it is also important to be aware of your workers’ compensation rights and entitlements. In Queensland, if you have been injured in the workplace or travelling to or from work , you may have an entitlement to apply for workers’ compensation with WorkCover Queensland or your employer’s self-insurer. However, there are important steps to take prior to submitting a workers’ compensation application. Step 1: Seek medical treatment After a workplace injury, the first thing you should do is seek medical treatment. Depending on the severity of your injuries, serious injuries may require you or a colleague to call for immediate medical treatment. For less significant injuries, you can visit your treating General Practitioner as soon as possible after your injury. Do you have to attend the company doctor? Though your employer may ask you or sometimes insist that you attend the company doctor for medical treatment, there is no obligation for you to attend the company doctor, and you are within your rights to refuse and attend your own general practitioner. We recommend you attend your general practitioner in any event, as they are familiar with your medical history and can provide a more accurate diagnosis. You can read more about your worker’s compensation and medical treatment in our earlier blog, “Workers’ compensation claims Queensland - your rights regarding medical treatment”. Is my employer representative entitled to attend my medical appointment? A representative from your employer may want to accompany you to your medical appointment. You do not have any legal obligation to permit them to attend a medical appointment. The Fair Work Ombudsman confirms that an employer can ask for medical evidence confirming you are unfit for work, generally in the form of a medical certificate, however, it is not considered reasonable for an employer to go to a medical appointment with the injured worker. Does my doctor need to complete any paperwork for a workplace injury? When you attend your general practitioner or hospital, you can request for them to complete a Work Capacity Certificate. A work capacity certificate is different from an ordinary medical certificate, as this document identifies, among other things: the date of injury; description of the circumstances which caused your injury; diagnosis of your injury(s); whether you are able to return to work, referred to as “work capacity”; information about rehabilitation to assist Workcover planning your return to work; time frames surrounding your treatment. When you attend your doctor to complete the work capacity certificate, it is important to accurately report the date of injury as well as the circumstances which caused your injury. A work capacity certificate is to be lodged as part of your workers’ compensation application. Step 2: Ensure you report your workplace injury Depending on the severity of your injuries, you may report your workplace injuries to your employer either prior to seeking medical treatment or soon after you have received medical treatment. To report your workplace injury, you will need to raise and discuss your injury with your employer. As part of this discussion, you will likely complete an incident report or similar document to identify how you sustained your injury. Some employers are more prudent than others and may prepare an incident report for you. If an incident report is prepared on your behalf, it is important that you do not sign it if you do not believe it is accurate. If your employer pressures you to sign an incident report which is not accurate, you are not obliged to sign it. We recommend that you keep a copy of the incident report for your own records. If you are unsure whether an incident report has been completed and you have only verbally explained the incident to your employer, it is important to take the time to make notes of who you reported the incident to, the date and time of the conversation(s), and what you discussed. When reporting your incident, it is important to identify witnesses of your workplace injury and also include any previous occasions you reported any safety concerns to your employers. Step 3: Know your entitlements In Queensland, you are entitled to workers’ compensation if you can satisfy the following: You are a worker (as defined under the Workers' Compensation and Rehabilitation Act 2003 ); You have lodged an application within the time limit; You have suffered personal injury in the course of your employment, and your employment is a significant contributing factor to your injury. It is important to undertake your own enquiries or speak to your union if your employer notifies you that you are not entitled to workers’ compensation. To make a workers’ compensation claim, you can contact Workcover Queensland. You can lodge your claim online here  or by phone on 1300 362 128 . If your employer is self-insured, you will need to contact the self-insurer to make an application for compensation. If your workers’ compensation claim is accepted, you may be entitled to: weekly payments for loss of wages ; payments of reasonable medical expenses related to the workplace injury; reimbursement for travel expenses when travelling to/from medical appointments. lump sum compensation for permanent impairment. In addition to your statutory (no-fault scheme) entitlements, if your injury was caused by the negligence of another person or entity, you may also be entitled to a common law claim. For more detailed information about the claim’s process and all your entitlements, you can read our earlier blog, “Your guide to worker’s compensation claims in Queensland”. Step 4: Focus on your treatment After a workplace injury, you may be eager to return to work, or you may be feeling pressured by your employer to return to work. However, it is important that you take your time and follow the advice of your treating medical team for the best chance of a fast recovery. Do not feel pressured by your employer to return to work, as there is a chance that you worsen your injuries by returning to work before you are medically cleared to do so.   If you are feeling pressured into returning to work for financial reasons, depending on your circumstances, you may have other options available to minimise that financial strain. You may be able to make a claim for income protection or Total and Permanent Disability (TPD) .  Get help from a workers’ compensation lawyer If you’ve been injured at work and have lodged a workers’ compensation claim but are facing complications with that claim, you should seek legal advice immediately. Likewise, if it’s determined that you have a permanent impairment, it’s crucial that you seek legal advice as soon as you receive any offer for lump sum compensation before accepting that offer to ensure you protect any future right you may have to a common law claim. Our workers’ compensation lawyers are highly experienced in all aspects of workplace injury claims. We will ensure we maximise any of your compensation entitlements, while you concentrate on your health and wellbeing. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/may/steps-after-workplace-injury/ Sun, 18 May 2025 00:00:00 If you’ve worked in a noisy industry in NSW and you have hearing loss, you may be entitled to worker’s compensation through an industrial deafness claim. A successful industrial deafness claim can assist with the cost of hearing aids and also lump sum compensation. Examples of noisy industries include: construction; transport; manufacturing; cement production; ship building; metal work (including smelters); road workers; farming, and others. What are the symptoms of industrial deafness (industrial hearing loss)? Some common symptoms of industrial deafness include: a gradual loss of hearing and onset of tinnitus (“ringing” in your ear/s); having trouble hearing people on the phone; problems watching TV or even listening to the radio unless the volume is significantly increased; trouble hearing in open spaces, which might include at a shopping centre or indoor venues; and difficulty in ascertaining where a sound or sounds came from. If you are suffering from any or even all of these symptoms, it is recommended that you attend an audiologist and obtain an audiogram. The audiologist will confirm if you are suffering from hearing loss based on the findings of the audiogram. What compensation can I claim for industrial deafness? If you are diagnosed as suffering from hearing loss, based on the audiogram findings, and it is deemed to be an industrial deafness injury, under the NSW worker’s compensation scheme, you are entitled to claim: the costs of hearing aids; and lump sum compensation. Lump sum compensation If you were exposed to a noisy work environment in NSW after 1 January 2002, your audiogram will need to demonstrate a binaural hearing loss of at least 20.5% to be able to claim lump sum compensation. If you were exposed to a noisy work environment in NSW before 1 January 2002, lump sum compensation is payable for an assessed hearing loss of 6% or more binaural hearing loss. The only exceptions to the above are police officers, paramedics, firefighters and coal miners, for whom the threshold is 6% binaural hearing loss, even for exposure after 1 January 2002. Binaural hearing loss is hearing impairment in both ears. Hearing aids Regardless of when you stopped working, if you have an accepted industrial deafness claim, you are entitled to a lifetime supply of hearing aids. New hearing aids are fitted every five years and in case you lose them, you have an entitlement to immediate replacement. There is no hearing loss threshold to claim for hearing aids. How does the industrial deafness claims process work? Firstly, you will need to obtain an audiogram from an audiologist. If you are unsure of audiologists in your area, it is a good idea to speak with your GP, who will be able to assist you. Once you have obtained your audiogram, speak with a worker’s compensation lawyer about your options. At Hall Payne , we provide this initial consultation at no charge to you. GET ADVICE FROM A WORKERS COMPENSATION LAWYER:  1800 659 114 After your initial (free) consultation, we will apply for funding from the Independent Review Office. Once the grant is received, we will provide you with further advice regarding your legal rights and entitlements. This grant will also cover all disbursements (third-party costs), such as medical reports and clinical notes. We will organise an appointment for you to be assessed by a SIRA qualified medico-legal specialist for the purpose of preparing a report to determine the extent of your hearing loss. Once the medico-legal report is received by us, we will prepare all claim documents on your behalf and lodge the claim with your last noisy industry employer. This could be a former employer, even if you have retired, or if you are still working, your current employer. The claim may be for just hearing aids, lump sum compensation, or depending on the outcome of your medical examination, both. Upon receipt of your hearing loss claim, the employer will notify its worker’s compensation insurer of your claim. Typically, the insurer will respond to your hearing loss claim by requesting further information (which is known as further and better particulars) and organise for you to be medically examined by a SIRA-qualified medico-legal specialist of its choosing to obtain its own medico-legal report. Once this is done, the insurer will consider your hearing loss claim, and will either approve your claim in full, attempt to negotiate an outcome with you or deny your claim . What can I do if my industrial deafness claim is rejected? If the insurer denies your industrial deafness claim, or the offer it makes is not acceptable to you, we will refer your matter to the Personal Injury Commission of NSW for dispute resolution. This may result in your matter being heard by a Member of the Personal Injury Commission or you being medically examined by a Medical Examiner appointed by the Personal Injury Commission. Are there time limits for an industrial deafness claim in NSW? You will have up to three years from the date of your hearing loss diagnosis to make a worker’s compensation claim. This period commences from the date you first become aware that the hearing loss is related to your employment. If your hearing loss developed gradually, Section 17 of the Workers Compensation Act 1987 outlines special rules for determining the date of injury for hearing loss or industrial deafness claims. For gradual hearing loss, the date taken as the occurrence of injury is either: the date upon which notice was given to the employer of the hearing loss injury and the worker still works in a noisy environment; or the date upon which a worker last worked in a noisy environment, if they are no longer working in a noisy environment. Do I really need a lawyer for an industrial hearing loss claim? While it is not compulsory for an injured worker to engage a lawyer to pursue an industrial hearing loss claim on their behalf, it is worth noting that insurers frequently deny these types of claims, and without knowledge of the NSW worker’s compensation scheme laws, regulations, guidelines and procedures it is unlikely that you will be successful with your claim. At Hall Payne Lawyers, we will manage the entire claim process on your behalf. This alleviates the pressure of having to communicate and negotiate any difficulties that can arise with the insurer, especially if the insurer denies liability for your claim. What are the charges to me to pursue an industrial hearing loss claim? In New South Wales, all legal costs and disbursements for worker’s compensation claims (including hearing loss claims) are funded by the Independent Review Office (IRO). Therefore, it is extremely important to seek assistance from an IRO qualified lawyer. The lawyers in the NSW personal injury team at Hall Payne Lawyers are IRO qualified lawyers. This means there are no costs payable by you in pursuing either a hearing loss or lump sum compensation claim with our assistance. If you are an exempt worker (fire fighter, ambulance officer or police officer), Hall Payne Lawyers will represent you on a no-win, no fee basis. Upon obtaining a positive outcome for you, we will send our regulated costs and disbursements to the insurer for payment. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/may/hearing-loss-claims-nsw/ Sun, 11 May 2025 00:00:00 Complaints or notifications against health professionals are not uncommon and can have serious implications for a practitioner’s registration as well as their current and future employment. Because of this, it is vital that health professionals understand what to do when a complaint is made against them to the Australian Health Practitioner Regulation Agency (Ahpra) or another regulatory body. If you’re a doctor, nurse, or other health practitioner, it is important to know what to expect during the complaint process. This article addresses what you should do if a complaint has been made against you, including the various grounds, processes, and potential outcomes of an investigation into that complaint. What should I do if a complaint has been made against me? If you have been informed that a complaint has been made against you to Ahpra, the Office of the Health Ombudsman (OHO), the Health Care Complaints Commission (HCCC) or a Health Professional Council (Council): do not panic – most complaints are resolved without significant implications for a practitioner’s registration and career; speak to your union, insurer, or a health lawyer immediately; and do not make any statements to the regulator without first receiving legal advice . Who can make a complaint to Ahpra? Although  the majority of complaints  come from patients and their relatives (47% and 17%, respectively), practitioners should be aware that anyone can make a complaint, including a student, colleague, or their employer. In some instances, a notification to the Ahpra is mandatory where it involves a health professional: practising while intoxicated by alcohol or drugs; sexual misconduct relating to practice of the profession ; placing the public at risk of harm because of a significant departure from accepted professional standards; or placing the public at risk of substantial harm due to a practitioner’s health or impairment . Unfortunately, while most complaints are genuine, it is our experience that vexatious complaints do occur. Your response may be different, where you have good reason to believe that a complaint is vexatious. What complaints can be made about a health practitioner? The regulation of health practitioners in Australia is largely governed by the Health Practitioner Regulation National Law ( National Law ). The National Law has been adopted by all states and territories in Australia. The grounds on which a person can complain about a health practitioner are broad. Generally, a complaint will allege that the performance, conduct, or health of a health professional is unsatisfactory or unacceptable. Pursuant to section 144 of the National Law, the following complaints may be made about a registered health practitioner: criminal conviction or criminal finding; unsatisfactory professional conduct or professional misconduct; lack of competence; impairment; and/or whether or not they are a suitable person to hold registration. The following complaints may be made about a student of a health profession: serious offences; impairment; and/or contravention of conditions. The most common type of complaint is related to a health professional’s performance, followed by conduct and then the practitioner’s health. What is unprofessional conduct; unsatisfactory professional performance and professional misconduct? Most complaints will involve allegations that the health practitioner practiced their profession or conducted themselves in a way that constitutes ‘unprofessional conduct’ or ‘professional misconduct’. Unprofessional conduct means professional conduct that is of a lesser standard than that which might be reasonably expected of the health practitioner by the public or their peers. Unprofessional conduct might include the use of unconventional medical practices such as: infusions of bicarbonate soda on a patient who had breast cancer; or the failure of notifying the relevant Board of a relevant event, such as being charged with an offence with over 12 months of imprisonment (Note criminal history reporting obligations may vary in some States and Territories); or making inappropriate comments about a patient’s physique, which included lewd and sexual suggestions; or providing medical care to a person with whom the practitioner was engaged in a close personal relationship; or misappropriating medical prescribed for another for personal use. In some circumstances, a decision maker will look behind unsatisfactory professional conduct and make a finding of unsatisfactory professional performance . This finding is made if the practitioner’s knowledge, skill, judgement, or care is considered to be below the standard reasonably expected of a health practitioner of an equivalent level of training and experience. Any determination of unsatisfactory professional performance requires a decision maker to embark upon a comparative exercise, made with reference to the experience of the practitioner, the care that was delivered, and the expected standard. A finding of unsatisfactory professional performance might be more palatable than a finding of unprofessional conduct, as any identified skills deficit may be cured by remedial action such as further education and training. An example of unsatisfactory professional performance was found where a practitioner failed to maintain an adequate system for ensuring test results were acted upon in a timely manner and failing to maintain a system for recording and storing patient clinical records. Professional misconduct is unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration. It also extends to more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration. Instances where professional misconduct has been found include failing to maintain professional boundaries , inappropriate prescribing and practising whilst impaired. Who manages or investigates an Ahpra complaint? In most Australian states and territories, a complaint about a health practitioner is made to Ahpra, which then investigates the complaint. A complaint to Ahpra is called a notification. In New South Wales, Ahpra does not conduct investigations about health practitioners. Instead, a complaint may be made to a Council or to the HCCC, which consult with each other to determine which body will investigate or otherwise manage the complaint. In Queensland, all complaints are made to the Office of the Health Ombudsman, which then works with Ahpra and other regulatory bodies to investigate or otherwise manage the complaint. What happens after a complaint is made about a health professional? If the regulatory body determines that there is an imminent or serious risk to public health and safety, it may propose to take immediate action . The regulatory body will reach out to you over the phone to inform you about the complaint. You should take notes and try to get as much information about the complaint as you can. It is important that you do not provide a response to any allegations at this stage, particularly over the phone , as this may be detrimental to your interests. If you are informed of a proposal to take immediate action against your registration you will be given an opportunity to respond to the proposal, however, you will be given a very limited time to respond, usually 3 working days . It is imperative that if you receive information of this nature, you take immediate steps; contact your union, insurer, or a health lawyer to get advice. GET ADVICE FROM A HEALTH LAWYER:  1800 659 114 Even if you have received notice of a complaint or notification, we recommend contacting your union, insurer, or a health lawyer without delay to obtain advice about how to respond. Do not contact the person who made the complaint or notification, as this might be seen as interfering with the investigation. We also recommend you keep the complaint confidential, although you may speak about it with your family, union, insurer, a health lawyer, or your treating medical practitioner. Generally, the regulatory body will undertake an initial assessment of the notification and decide whether to investigate. During this process, it will provide you with the allegations made against you in writing and set a timeframe for you to respond. It is important that you seek advice in preparing this response, given the potentially serious consequences that might arise if any allegations against you are substantiated. During this assessment process, the complaint may be finalised. However, this is not always the case. From time to time, the investigative body will initiate a formal investigation to gather more information, which might include additional clinical records, statements from witnesses, and/or expert reports. The investigation must be conducted in a way that is procedurally fair towards you. In essence, this means that you must be informed of, and given an opportunity to respond to, all the evidence relied upon in the final determination of the complaint. What are the potential outcomes of the complaints process? In the majority of cases, Ahpra or the relevant regulatory body will discontinue the complaint or take no further action. However, if the allegations are substantiated, and are sufficiently serious, the regulatory body may, among other things, caution or reprimand the practitioner or impose conditions on their practice. In very serious circumstances, Ahpra or the relevant body may refer charges alleging professional misconduct to the relevant administrative tribunal in the state or territory. A tribunal may suspend or even cancel a practitioner’s registration. Impact of an Ahpra complaint on employment A notification or complaint against a health professional can have a serious impact on their employment, even before it is substantiated. This is especially the case where the notification or complaint is made by a colleague, manager, or employer. If a complaint is made against you, your employer may decide to conduct a separate investigation. Your employer may decide to take action against you even if the regulator does not. Unfortunately, it is our experience that health professionals often end up having to respond to the same allegations twice. It is unfortunately common for employers to notify Ahpra or a health regulator concurrently with conducting their own investigation or disciplinary process. It is vitally important that in responding to any employer process, you be aware that a notification may be made and that any response you give to your employer will be provided to the regulator. If your employer decides to conduct a workplace investigation, it is important that you know your rights . Hall Payne Lawyers take a holistic approach to such matters, assisting you to deal with the workplace matter with a keen focus on the potential implication to your registration. Our lawyers are both expert employment and health lawyers. Seek legal advice from a lawyer experienced in health law If you are a health professional who has been made aware that you are the subject of a complaint, it is vital to obtain legal advice immediately. You need to ensure that you understand the complaint’s process and can formulate a written response that puts you in a position to get the best possible outcome. Hall Payne Lawyers regularly act on behalf of doctors, nurses, and other health professionals in both professional conduct and employment matters. We are highly experienced and can assist you throughout the notification or complaint process, as well as any related workplace investigation. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/may/ahpra-complaints-and-notifications/ Sun, 04 May 2025 00:00:00 Australia’s legal framework is committed to ensuring the protection and fair treatment of workers in Australia, including the rights of workers under the age of 18. For young and often vulnerable workers, these laws ensure that they are not exploited, receive fair and adequate wages and are protected from unsafe working conditions, all whilst maintaining their access to education. This blog will explore the key employee rights for minors, covering employment standards, working hours and minimum wage. We will specifically detail the restrictions in Queensland, with a brief overview of other States and Territories. In Queensland, restrictions and exemptions are in place and apply to minimum age of employment, maximum hours of work, shifts, breaks, prohibited hours and supervision. Minimum age requirements for employment in Queensland In Australia, there is no national minimum age for employment, but States and Territories have their own regulations governing the minimum age of employment. In most States, the minimum age to start working is between 13 and 15 years old. However, certain restrictions can apply depending on the industry and nature of work. In Queensland, the Child Employment Act 2006 (Qld) (the Act ) prohibits the employment of children below the ages that are specified in the Child Employment Regulation 2016 (Qld) (the Regulations ). Additionally, it is important to note that the Act and Regulations (collectively, the Law for Employment of Minors ) establish restrictions to safeguard working children, ranging from: the minimum working age; prohibition of certain types of clothing; inappropriate roles; and other restrictions. Generally speaking, the minimum age for employment in Queensland is 13. The age is lowered to 11 when a child carries out supervised delivery work, such as delivering newspapers, advertising material or similar items between the hours of 6.00 am and 6.00 pm. Working hours and breaks for minors in Queensland The Law for Employment of Minors places restrictions on employers employing school-aged children and the hours that they can work. It establishes the differences between school days, non-school days, a school week and a non-school week. A school day is defined as: “… a day on which the school-aged child is required to attend school. ” A school week is defined as: “ …a week starting on a Sunday, during which the school-aged child is required to attend school. ” On a school day, a school-aged child can work a maximum of four (4) hours. On a non-school day, they can work a maximum of eight (8) hours. During a school week, a school-aged child can work a maximum of 12 hours, and during a non-school week, they can work a maximum of 38 hours. The Regulations impose a restriction that unless a relevant industrial instrument (for example, an award or enterprise agreement ) provides otherwise, a school-aged child must not continue to work after four (4) hours unless they have had a one-hour break. There are also prohibitions on the times school-aged children may be permitted to work. School-aged children are prohibited from working between the hours of 10.00p m and 6.00 am on any given day. School-aged children who are between the ages of 11 and 13 and are performing delivery duties are prohibited from working between 6.00 pm and 6.00 am on any given day. Minimum pay and other entitlements for minors Minors under the age of 18 in Australia are entitled to receive a junior wage, which is a percentage of the adult minimum wage based on age. Any employee under the age of 21 is classified as a junior employee. The Fair Work Commission ( FWC ) sets the national minimum wage , which is reviewed annually, and junior workers are paid a proportion of this wage according to their age. As of July 2024, the adult minimum wage per hour is $24.10, however the minimum hourly wage can vary in each industry or award. For example, under the Fast Food Industry Award 2020 , the minimum hourly adult rate is $25.65. Junior rates are applied at the following percentages of that minimum hourly adult rate: Under 16 years of age: $10.26 (40%) 16 years of age: $12.83 (50%) 17 years of age: $15.39 (60%) 18 years of age: $17.96 (70%) 19 years of age: $20.52 (80%) 20 years of age: $23.09 (90%) 21 years of age: $25.65 (100%) The exact percentage varies depending on the industry or award under which the worker is employed. The minimum wage a minor receives will increase as their age increases. The FWC provides the following example: “ Carly is 17 years old and works in a shop. She’s entitled to 60% of the adult pay rate under her award. She turns 18 on 22 March. From 22 March she’s entitled to 70% of the adult pay rate. ” Employers are obligated to pay superannuation contributions of a minimum of 11.5% (as at July 2024) of an employee’s ordinary time earnings when they are under 18 years of age and work over 30 hours a week. If a school-aged child works less than 30 hours per week, there is no obligation for them to be paid superannuation. Balancing work and education for young workers As discussed earlier, employers are prohibited from scheduling work hours that conflict with school hours or late-night shifts that could affect a minor’s ability to attend school or complete their homework. Under the Fair Work Act 2009 (Cth) (the FW Act ), if a minor is completing an apprenticeship or traineeship, employers must provide time for them to attend both their training and educational commitments. It is important to note that the FW Act makes it an offence for an employer to require or allow a school-aged child to perform work when they are required to attend school. A parent commits an offence under the Education (General Provisions) Act 2006 (Qld) if they allow their child to work when they should be at school. Other employment protections and entitlements for minors Minors, like adults, are protected from unfair dismissal under the FW Act. Employers cannot terminate a minor’s employment without a valid reason, such as poor performance or misconduct, and must follow fair dismissal processes. Furthermore, minors who are dismissed unfairly or are not paid their entitlements have the right to lodge a complaint with the Fair Work Ombudsman, who can assist them in resolving the dispute. Minors are also protected by the same anti-discrimination laws as adults . Under the FW Act and various state-based anti-discrimination laws, it is illegal for employers to discriminate against minors on the basis of age, race, gender, sexual orientation or other protected attributes. Minors are also entitled to fair treatment regarding their workplace rights, such as breaks, leave entitlements and access to benefits. For instance, even junior employees are entitled to paid sick leave and annual leave under the National Employment Standards if they are employed in permanent roles. Other States and Territories of Australia In Victoria, a minor must be at least 11 years old to deliver newspaper and advertising material and at least 13 years old to work in retail or hospitality. In Western Australia, a minor must be at least 10 to deliver newspapers, pamphlets or advertising material. Minors from the age of 13 may work in retail or hospitality jobs. In the Northern Territory and the Australian Capital Territory, the minimum age of employment is 15 years old. In South Australia, Tasmania and New South Wales, there are no minimum working age restrictions. Australia’s legal framework for minors in the workplace strikes a balance between allowing young people to gain work experience and ensuring their rights are protected. Setting clear rules on minimum ages, work hours, wages and safety protects them from exploitation while allowing them to learn important life skills in a safe environment. Understanding these rights is crucial for young workers, their parents and their employers to ensure compliance with the law and promote fair working practices and conditions. Get help from an employment lawyer If you’re a child or parent of a child in employment, and you believe your child’s workplace rights and entitlements are not being met, you should seek legal advice about your options. Our award-winning employment lawyers can assist you with any issues you may be having in the workplace. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/april/employment-rights-for-minors-in-queensland/ Sun, 27 April 2025 00:00:00 Experiencing a work-related injury can be an overwhelming experience with physical, emotional, and legal concerns involved. A common decision faced by injured workers in Queensland is whether there is a benefit to seeing their own doctor or a doctor recommended by their employer. It is important that injured workers have a good understanding of their options following a workplace injury to ensure their workers’ compensation rights are protected and that they receive the appropriate medical care. Seeing your own doctor while on workers’ compensation: key benefits When it comes to seeking medical attention after a work-related injury, you may wonder if there is any benefit to seeing your own doctor versus a doctor referred by your employer or the insurer. Choosing your own doctor has several advantages: Familiarity with your medical history Your regular doctor knows your personal medical history, including any pre-existing conditions you may have and any other factors that may influence your recovery. This insight allows the provision of tailored care which takes into consideration your unique circumstances. Unbiased medical advice Your regular doctor is more likely to provide impartial medical advice which is focused on your well-being and medical improvement. Comfort and trust If you already have an ongoing relationship with your doctor, you will likely feel more at ease discussing your condition and concerns. Continuity of care Your regular doctor is likely to oversee your treatment long-term if required, ensuring your treatment is consistent and tailored to your specific needs and goals without interruptions or potential conflicting medical opinions from multiple practitioners.   When you may need to see another medical provider during the life of your workers’ compensation claim While you do have the right to choose your own treating doctor, you may encounter situations throughout the workers’ compensation claim process where you may need to see other medical providers. Independent Medical Examinations (IMEs) Throughout the process of a workers’ compensation claim, your employer, their insurer, or WorkCover Queensland may request that you attend an Independent Medical Examination. This request is for the purpose of assessment rather than treatment. During this examination, the medical practitioner will generally provide an opinion on your condition, your capacity to work, the details of your injury and if your injury aligns with the workplace incident. Specialist referral Your injury may require specialist treatment such as that provided by a surgeon, physiotherapist, psychiatrist, or rehabilitation expert. Your treating doctor will typically make a referral to these specialists if required. While WorkCover or your employer’s insurer may suggest other specialists, you have the right to discuss your options with your usual doctor and make the decision. Permanent impairment assessments for lump sum compensation If your injury results in some form of permanent impairment, WorkCover or your employer’s insurer may appoint a doctor to perform an evaluation to assess your degree of permanent impairment (DPI) which determines whether you are entitled to lump sum compensation for your injury. If you are issued with a Notice of Assessment, it is vital that you obtain legal advice. Any decision you make in relation to a Notice of Assessment and related lump sum offer is irrevocable and may affect your right to pursue a common law damages claim. Workers’ compensation common law damages is compensation in addition to your statutory entitlements, where you sue your employer if they contributed to your injury through negligence.  GET ADVICE FROM A WORKER'S COMPENSATION LAWYER:  1800 659 114 The role of medical reports and records in your workers’ compensation claim Medical reports play a pivotal role in the workers’ compensation claim process. These reports are important to provide evidence of your injuries, treatment, and recovery. Common medical reports which will likely appear throughout the claim process are: Work Capacity Certificate This certificate is necessary to commence your workers’ compensation claim. Your injury is outlined within this certificate, as well as any recommended treatment and work restrictions or time off required. Without a valid Work Capacity Certificate, your workers’ compensation weekly payments and/or medical expenses will not be covered. Treatment records It is important to maintain open communication and attendances with your treating doctor to help demonstrate your injury recovery or deterioration and to receive the support you may need for further treatment, modified duties, or additional time off work. Your treatment records will demonstrate as such. Specialist opinions You may be referred to specialist doctors who may provide reports during your workers’ compensation claim process. These specialist reports can strengthen your case by providing more detailed assessments of your injury. Important tips about medical treatment for injured workers Keep copies of all medical reports, receipts, and correspondence with your employer and Workcover or your employer’s self-insurer. Always follow your doctor’s advice, attend all appointments and complete all recommended rehabilitation. Try your best to maintain open communication with your employer and treating medical professionals about your injury, recovery, and any modified duties you may require. Seek legal advice if you are unsure about your rights or if you face any difficulties throughout the workers’ compensation claim process. Get help from a workers’ compensation lawyer Dealing with a workplace injury can be quite a daunting process. Understanding your options and your rights throughout this process is vital to protect your health and financial stability. While your employer may suggest a doctor for you to see after a workplace injury, it is important to remember that you have the right to choose your own doctor who prioritises your health, recovery, and well-being. It is important to take the right steps early. If you are uncertain about the process or require assistance, Hall Payne Lawyers is here to help. Contact us to discuss your options and ensure your rights are upheld. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read more about Queensland workers’ compensation claims: Your guide to worker’s compensation claims in Queensland Rejected workers compensation claims in Queensland Workers’ compensation journey claims when travelling to and from work https://www.hallpayne.com.au/blog/rss/blog/2025/april/workers-comp-medical-treatment/ Sun, 20 April 2025 00:00:00 Victims of sexual harassment who bring a claim for compensation and, during that process, are involved in the negotiation of a settlement are, in our experience, often asked to sign a non-disclosure agreement ( NDA ). NDAs, which may also be known as confidentiality clauses or agreements, are often assumed or even asserted to be a standard or ‘usual’ part of a settlement agreement. In reality, they are just another part of any settlement proposal that is not an essential term and is entirely up for negotiation. It cannot be sensibly disputed that workplace sexual harassment is prevalent in Australian workplaces. According to the ‘Time for respect: Fifth national survey on sexual harassment in Australian workplaces’ report , one out of three people say that they have experienced workplace sexual harassment in the last five years. Women are more likely to experience workplace sexual harassment (41%) as compared to men (26%). In some sectors or industries, this number may be even higher. What is sexual harassment? Sexual harassment is defined as unwelcome conduct of a sexual nature in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. Sexual harassment can be a single incident or repeated behaviour over a period of time. It can include unwanted verbal conduct (for example, a request for sexual favours, sexual comments or offensive jokes) or physical behaviour of a sexual nature. Regardless of the intention of a perpetrator, sexual harassment is against the law. Sexual harassment is prohibited in Australia by the Sex Discrimination Act 1984 (Cth) ( SDA ) as well as the Fair Work Act 2009 . There are also state-based regimes and Commissions/Tribunals that regulate this area. Sexual harassment is prohibited in employment, educational institutions, and in the provision of goods, services and facilities, as well as in other settings. Options for people subjected to workplace sexual harassment If you have been sexually harassed in the workplace, you can: report the harassment to your manager or human resources department; seek help from your union for advice and assistance about your rights and entitlements; seek legal advice; apply to the FWC for a ‘stop sexual harassment order’ ; lodge a claim in the AHRC or the FWC (or with a state-based Tribunal). If you suffer physical injury or develop a psychological illness due to workplace sexual harassment and you require medical treatment and/or time off work, you may also be eligible for worker’s compensation . Settling your claim by negotiation between the parties When a person chooses to make a claim due to workplace sexual harassment under the SDA, they have the option to bring a claim in the Australian Human Rights Commission. The AHRC process may take a long time, and going to court can be stressful and involve significant legal costs. Because of this, many victims choose to first attempt to settle their claims by negotiation between the parties. There are many advantages to settling a claim before it goes to the AHRC. These include a faster resolution of the matter and reduced costs, and you might be able to negotiate outcomes that would not otherwise be available to you if you proceeded to court. As discussed above, there is the option of making a settlement private and confidential, which is often something that the defendant requests. This is where the use of NDAs comes in. If you’re being asked to sign a settlement deed that has an NDA, it is crucial that you seek advice before signing anything. GET ADVICE FROM AN EMPLOYMENT LAWYER:  1800 659 114 What is a non-disclosure agreement? An NDA, or a confidentiality clause or agreement, is a legal contract between parties to a dispute. It outlines confidential material, knowledge, or information that the parties to the NDA agree will not be shared or discussed with anyone else. Example -  In a workplace context, a strict NDA would prevent both the employer and employee from discussing the fact that the sexual harassment occurred at all, with anyone else, including close family, friends or other colleagues. Employers will often seek NDAs to avoid reputational harm to their business, or to the person who was responsible for the sexual harassment, or both. How common are non-disclosure agreements? While the use of NDAs has been receiving more scrutiny in recent years, their use remains widespread. A research report (March 2024), “Let’s talk about confidentiality: NDA use in sexual harassment settlements since the Respect@Work Report” , indicates that many lawyers still view the inclusion of strict NDAs in settlements for sexual harassment as standard practice and insist that they form a part of a settlement. According to the report, approximately 75% of the lawyers surveyed, being 69% of applicant and 79% of respondent lawyers, have never resolved a sexual harassment complaint without a strict NDA.  It is, of course, concerning that the NDA use is seemingly so entrenched that many lawyers do not advise their clients of the option to  not  have such a provision.  Close to 30% of applicant lawyers and 50% of respondent lawyers have never provided this advice to clients. The problems with non-disclosure agreements Strict NDAs prevent those who have entered into a settlement deed from discussing any aspect of the matter with any other person, including family, friends and former colleagues. This may have significant negative impacts on a victim’s attempt to achieve closure and also on their ongoing mental health. It prevents persons from being able to share their story, if they so choose, and also, for example, from being part of a campaign against sexual harassment in the future. The Legal Services Board in the United Kingdom noted one survey that suggested that 95% of those who have signed NDAs said that they have ongoing impacts on their mental health. While NDAs are often sought by employers, they may also have a negative impact on their business in the long term. This is because they may prevent the employer from appropriately dealing with the underlying culture or behaviours that led to the incident in the first place, and thereby increases the risk of the misconduct reoccurring. Trends in the regulation of NDAs There has been some interest in limiting the use of NDAs in workplace sexual harassment settlements both in Australia and worldwide. In Victoria, the Victorian Ministerial Taskforce on Workplace Sexual Harassment recommended legislative change to restrict the use of NDAs in workplace sexual harassment claims. We are yet to see any of the recommended changes being introduced. In Ireland, the Employment Equality (Amendment) (Non-Disclosure Agreements) Bill 2021 has been proposed. If enacted, it would allow employers to enter into an NDA only if it is the express wish and preference of the employee and where certain other stringent conditions are met. Similar legislation exists in some Canadian jurisdictions . Do I have to sign an NDA? The treatment of NDAs as standard in workplace sexual harassment settlements is no longer considered to be best practice. It is inconsistent with recent guidelines released by the Australian Human Rights Commission , which set out the following recommended approach to the use of confidentiality clauses: consider the need for a confidentiality clause on a case-by-case basis; the scope and duration of the confidentiality clause should be as limited as possible; confidentiality clauses should not prevent organisations from responding to systemic issues and providing a safer workplace; all clauses in a settlement agreement should be clear, fair, in plain English and, where necessary, translated and/or interpreted; the person who made the allegation should have access to independent support or advice to ensure they fully understand the meaning and impact of the settlement agreement, including any confidentiality clause; and negotiations about the terms of a settlement agreement should ensure, so far as possible, the well-being and safety of the person who made the allegation and be trauma-informed, culturally sensitive and intersectional. If you have been provided a settlement deed in relation to workplace sexual harassment, you should seek advice before signing it, particularly if it contains an NDA. GET ADVICE FROM AN EMPLOYMENT LAWYER:  1800 659 114 The authors of the Let’s Talk About Confidentiality Report suggest that lawyers failing to advise their client that an NDA may not be included in a settlement could constitute a breach of professional legal obligations, which require clear and timely advice so that clients can make informed choices in their instructions. What this means is that neither an employee nor employer should just assume that a strict NDA will be part of a sexual harassment settlement. NDAs are optional and should be negotiated just like any other part of your settlement. Even if an NDA is sought, its terms should, at the very least, in our view, allow the victim to talk about their experiences with their treating health professional and with close friends and family. Lawyers acting for employers should advise their clients to consider whether having an NDA as part of a settlement is in the long-term interests of their business, especially since employers now have a positive duty to prevent sexual harassment in the workplace. What happens if I breach an NDA after settling my sexual harassment claim? An NDA is a contract, and, like any contract, breaching it could lead to an employer bringing a claim for any harm that they might have suffered as a consequence. This could include financial or reputational harm. The potential consequences of breaching an NDA can be serious, which means that it is vital that the NDA is properly drafted and reviewed by your union or by a lawyer acting on your behalf. Get help from an employment lawyer If you or someone you know is experiencing sexual harassment in the workplace and you’d like advice or assistance about your legal options, including with respect to compensation, non-disclosure agreements, confidentiality clauses or settlement generally, our employment law teams across the country are able to assist. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/april/sexual-harassment-and-nda/ Sun, 13 April 2025 00:00:00 In this article, we discuss disability discrimination and the process involved in bringing a complaint about disability discrimination in Australia . We focus in particular on the federal Disability Discrimination Act 1992 (Cth) ( DDA ), looking at: what is unlawful discrimination; the relevant definition of “disability”; direct and indirect discrimination; defences to disability discrimination; how to bring a claim for disability discrimination; and what remedies or compensation are available for disability discrimination. There are also state-based discrimination statutes and Commissions/Tribunals that handle those complaints. This blog does not deal with those state-based schemes. Although the focus of this article is disability discrimination, we can assist you in relation to any sort of discrimination complaint ; for example, discrimination related to sex, pregnancy, race, sexuality, age, and other protected attributes. GET ADVICE FROM A DISCRIMINATION LAWYER:  1800 659 114 Unlawful disability discrimination in Australia Australian discrimination law is based on the presence of an ‘attribute’ as the basis for discrimination. Some examples include a person’s sex, race, sexuality or disability. It is generally unlawful to discriminate against someone because of their disability. For example, you cannot discriminate against someone, on the basis of disability, in the following settings: employment, including against independent contractors and others; education, such as against students; the provision of goods, services and facilities; the provision of accommodation; clubs and incorporated associations; and Definition of “disability” under the Disability Discrimination Act 1992 The definition of ‘disability’ under the DDA is quite broad. Disability, in relation to a person, means: total or partial loss of the person’s bodily or mental functions; or total or partial loss of a part of the body; or the presence in the body of organisms causing disease or illness; or the presence in the body of organisms capable of causing disease or illness; or the malfunction, malformation or disfigurement of a part of the person’s body; or a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; and includes a disability that: presently exists; or previously existed but no longer exists; or may exist in the future (including because of a genetic predisposition to that disability); or is imputed to a person. To avoid doubt, a  disability  that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability. For example, a particular symptom of a medical illness suffered by an employee is protected. Discrimination in the workplace based on disability is unlawful even if your disability is temporary or if someone assumes that you have the disability. It is also unlawful to discriminate against a person who requires an assistance animal to manage their disability. You can read more about this in our earlier blog, “Assistance animals, discrimination and the law” . Direct and indirect discrimination Under the DDA, there are two types of discrimination: direct and indirect. What is direct disability discrimination? Direct disability discrimination occurs where an individual (including an organisation) treats a person with a disability less favourably than a person who does not have the same disability, and the less favourable treatment is because of the disability. Example: During a job interview, a prospective employee discloses that they have been diagnosed with HIV. The employer then refuses to hire them because of their diagnosis and hires someone without HIV instead. This is direct disability discrimination. What is indirect disability discrimination? Indirect disability discrimination occurs where: an individual (including an organisation) imposes or proposes to impose a requirement or condition; and because of their disability, a person cannot comply with the requirement or condition; and the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability. Example : An employer imposes a requirement that employees must eat their lunch outside, away from the office, but a diabetic may need access to food immediately because of their disability. This disadvantages diabetic employees. Whether a person or organisation has engaged in discrimination will also depend on whether they provided reasonable adjustments to accommodate the aggrieved person. What are reasonable adjustments? For both direct and indirect discrimination, a person or organisation will discriminate against a person with a disability if they fail to make reasonable adjustments for the individual to overcome the disadvantage imposed by the less favourable treatment or condition or requirement. Example: An employee who suffers from chronic fatigue requests to be allowed to work part-time as recommended by their treating medical practitioner, suggesting that this is a reasonable adjustment. If the employer disagrees, this may be unlawful discrimination. Defences to disability discrimination There are several defences available to a person or organisation that has been accused of engaging in discriminatory behaviour. This includes, in employment, the inherent requirements of the job and imposing an unjustifiable hardship in accommodating a person with a disability. What is the inherent requirements defence? In some cases, discrimination against a person with a disability will not be unlawful. For example, an employer can argue that their discrimination is not unlawful if the discrimination relates to particular work and, because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work, even with reasonable adjustments. Example : An employer refuses to employ a person with a vision impairment as a bus driver because their vision impairment prevents them from being able to safely drive a bus. This is discriminatory but it will not be unlawful because being able to drive safely is an inherent requirement of the job of being a bus driver. What is the unjustifiable hardship defence? It is not unlawful to discriminate against another person on the ground of a disability if avoiding the discrimination would impose an unjustifiable hardship on the discriminator. In determining whether there is such a hardship, all relevant circumstances must be taken into account, including, for example, the nature of the benefit/detriment and the financial circumstances of the organisation. Example : In our earlier example of an employee suffering chronic fatigue, a small business employer would have a good defence to any discrimination claim in relation to refusing their employee’s request to work part-time if the employer can show that this would impose a significant and unavoidable financial hardship on the business. How can I bring a complaint about disability discrimination? If you believe that you have been discriminated against because of your disability, in breach of the DDA, you can make a complaint to the Australian Human Rights Commission (the AHRC ). The AHRC investigates and conciliates complaints about discrimination and breaches of human rights. The AHRC does not determine a complaint finally. The AHRC will conciliate with the parties to reach some resolution. In our experience, parties will often come to an agreement at the conciliation conference, although there is no guarantee that they will. If the complaint does not settle at conciliation, then the aggrieved person may bring an application to the Federal Court of Australia or the Federal Circuit and Family Court of Australia. An aggrieved person cannot bring an application to the Federal Court of Australia unless the complaint has first been dealt with by the AHRC, unless the employee decides to immediately seek an injunction on the Court. What remedies or compensation are available for a successful disability discrimination case? The remedies that can be granted by a Court in respect to a claim for disability discrimination include: an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination; an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant; an order requiring a respondent to employ or re-employ an applicant; an order requiring a respondent to pay to an applicant damage by way of compensation for any loss or damage suffered because of the conduct of the respondent; an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant; an order declaring that it would be inappropriate for any further action to be taken in the matter. However, at conciliation (prior to adjudication), the parties may ask for and agree on a wide range of remedies, including, for example, a written apology or an employer providing education to their employees to avoid disability discrimination from occurring in the future. In other words, agreements at conciliation can be far more flexible, and parties can be more creative in resolving a claim. Seek legal advice from a lawyer experienced in discrimination law If you believe that you have been discriminated against based on your disability, it is important to obtain legal advice to determine whether or not you have a claim. You need to ensure that you understand the process involved and your chances of being successful in raising a complaint with the AHRC. Hall Payne Lawyers are experienced and regularly act on behalf of people who have faced discrimination in employment and other areas. We are highly experienced and can assist you to settle your discrimination claim throughout the complaints process with the AHRC or to litigate the case in the Federal Court. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/april/disability-discrimination/ Sun, 06 April 2025 00:00:00 Injuries that occur in public spaces, whether at the shops, parks/playgrounds or sporting venues (just to name a few), can be life-changing. When someone else’s negligence causes you harm (physical and/or psychological), you may be entitled to make a public liability claim to seek compensation for that harm. But navigating the claims process in NSW can seem overwhelming if you don’t know where to start. This guide will walk you through the steps of making a public liability claim in NSW, so you can understand your rights and seek the compensation you deserve. What is a public liability claim? Public liability claims allow individuals to seek compensation when they are injured in a public place due to the negligence of property owners or operators. This includes things like tripping on an uneven footpath or slipping on a wet floor in a shopping centre. Compensation is available under the Civil Liability Act NSW 2002 as follows: Non-economic loss (permanent impairment and pain and suffering); Out-of-pocket expenses (past and future medical expenses); Economic loss (past and future loss of earnings and superannuation); Cost of other assistance (domestic assistance, personal care provided by friends, family, or professional organisation – past and future. Clarifying the term “public” liability There is a common misconception that the word “public” means you can only claim for an injury if it occurred in a “public” place (e.g. a shopping centre, car park etc.) In fact, injuries that happen in both public and private spaces are covered by public liability law. Public liability is also known as “occupiers’ liability” and covers private, public and rental property accidents, which includes short-term lodging (for example, an Air BnB and other holiday rentals). Common locations and venues that can be exposed to public liability claims Injuries that could lead to a public liability claim can occur in a wide range of locations, including publicly and privately owned properties and event venues like festivals and agricultural shows. Some common locations/venues include: Accidents on public property – in a park or on a footpath; School premises; Public transport; Supermarket/shopping centre; Sporting and recreational clubs and venues; Assault related injuries; Amusement venues; Rental premises (e.g. Landlord/tenant); Private property – gyms, hotels, shopping centres; Dog attacks; Slips, trips or falls. When can you make a public liability claim? Public liability is a vast category of law and there is no conclusive list of accident types. However, an accident is generally covered by public liability if it results from an individual’s or organisation’s negligence. Below is a list of some common scenarios that can result in a public liability claim. Physical injury caused by unsafe conditions, like wet floors or damaged walkways; Injuries occurring in public events or facilities, like parks or sports venues; Accidents caused by poor maintenance or lack of safety protocols (e.g. broken stairs or poorly lit areas); Emotional distress (for example, if you’re injured in an accident and subsequently develop a recognised psychiatric illness or a close family member dies in an accident and you develop a recognised psychiatric illness as an emotional response); Property damage (e.g. if a tree falls on your car or house during a storm because it wasn’t properly trimmed or maintained); Injuries due to unsafe conditions or poor security at festivals; Loss of services (e.g. when an injury occurs due to loss of power as a result of unmaintained energy infrastructure); Wrongful death (for example, if someone dies as a result of someone else’s negligence, such as if they die in a car accident that was caused by another driver). What steps should I take after an injury? In a public liability claim, the evidence of the incident is vitally important. This is because your lawyer will have to demonstrate that: the company or person at fault owed you a duty of care; and the company or person breached that duty of care; and as a consequence, you were injured and suffered loss. A few key points to consider if injured in a public place. Seek medical attention. Your health comes first. Always get checked by a medical professional. This also creates an official medical record of your injuries. Report the incident. Notify the property owner or manager as soon as possible after the incident. This creates an official record. Document everything. Take photos and/or video of the scene, your injuries and any hazardous conditions. Get witness details. If there were witnesses, collect their contact information. Access any surveillance camera footage, if possible. Save all your medical evidence, bills, receipts, doctor’s or hospital records and anything else proving you sustained an injury. Any financial documents are also important to prove any loss of income as a result of your accident. Seek advice from a lawyer who specialises in personal injury claims GET ADVICE FROM A PERSONAL INJURY LAWYER:  1800 659 114 How to lodge a public liability claim in NSW To lodge a successful public liability claim, you will need to establish that you are eligible. Here are some points below to establish your eligibility. You must have sustained some form of injury – this can include physical injury, emotional injury or financial loss. The injury must have been caused by another party. For example, if you just simply trip and fall, you would not be able to file a claim against the person who owns the property where the fall occurred. The injury must have been caused as a result of the negligence of a third party. For example, if you slip in a wet supermarket aisle but there was no signage indicating the floor was wet, then the supermarket is negligent. Once you have established you are eligible to make a claim, you will need to: contact the responsible party about the incident; gather all your evidence – medical records, photos, witness statements and a written account of what happened; find a solicitor who specialises in public liability claims – the sooner, the better. This is important as these types of claims can be complex and time-consuming. When you have found a solicitor, they will assess your case and advise the best course of action. Time limits for public liability claims in NSW In NSW, the time limit to file a public liability claim is generally 3 years from the date of injury. However, there are some exceptions to this rule. You should speak with a lawyer if you are unsure if you meet the time limits. What is the role of a personal injury lawyer? A personal injury lawyer can assist you in proving liability and gathering all the evidence you will need for a successful claim. They can also help you navigate complicated insurance negotiations or represent you if you need to go to Court. At Hall Payne Lawyers, we offer  no-win, no-fee  services for public liability claims, making them accessible for those without upfront funds. While making a public liability claim can feel daunting, knowing your rights and following the right steps can help you get the compensation you deserve. If you’ve been injured in a public place in NSW, take action quickly ! Seek medical attention, gather evidence and reach out to us at Hall Payne Lawyers. With the right support, you can navigate the claims process and get the justice you deserve. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/march/public-liability-claims-nsw/ Mon, 31 March 2025 00:00:00 It is common practice in Australia for a clause related to a probationary period to be included in your employment contract . In this blog, we explore entitlements and protections related to probation periods under the Fair Work Act , and other general rights and entitlements while on probation, including: what a probation period is; termination of employment while on probation; resigning during a probation period; general protections claims while on probation; and unfair dismissal claims while on probation. Which employees are covered by the Fair Work Act ? National system employees are covered by the Fair Work Act . National system employees are: all employees in Victoria (with limited exceptions in relation to State public sector employees), the Northern Territory and the Australian Capital Territory; all employees on Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands; those employed by private enterprise in New South Wales, Queensland, South Australia and Tasmania; those employed by local government in Tasmania; those employed by a constitutional corporation in Western Australia (including Pty Ltd companies) – this may include some local governments and authorities; those employed by the Commonwealth or a Commonwealth authority; and waterside employees, maritime employees or flight crew officers in interstate or overseas trade or commerce. If your employment is not covered by the Fair Work Act , your employment rights, entitlements and protections will be different to those discussed in this blog. What is a probation period in an employment contract? A probation period is a period of employment which allows your employer to check and assess your suitability for the position you are hired for. The probationary period normally starts at the commencement of your employment and normally runs for between 3 and 6 months. Although it is your employer’s discretion to decide how long the probationary period will be, you can negotiate with your employer before signing the employment contract. Additionally, a probationary period can be extended if the relevant clause in the employment contract gives your employer the power to do so. However, your employer can only extend the probationary period by the specific amount of time stated in the clause. If there is no reference to extending a probationary period in your employment contract and you did not agree to an extension imposed by your employer, you may have grounds to consider the extension as a breach of contract. GET ADVICE FROM AN EMPLOYMENT LAWYER:  1800 659 114 Can I be terminated while on probation? Unfortunately, your employment can be terminated while on probation. This is because the purpose of the probationary period is for checking and evaluating your suitability for the specific role. If you do not meet your employer’s expectations for the position, your employer may terminate your employment while on probation. If your employment is terminated, your employer must give you written notice of the termination. You may be required to work the notice period, or if terminated immediately, the employer must give you payment in lieu of the notice period. The period of notice is determined by how long you have worked for your employer. For most employees on probation, the length of employment is most likely less than a year. If so, the period of notice of termination is one week. Can I resign during a probation period? Yes, you can resign during a probation period. However, your employment contract may have a clause requesting you to give your employer written notice. If there is a term in your employment contract addressing this, the length of notice period is also in the contract. If you fail to give your employer the required notice period when resigning, your employer may try to deduct any notice period amount from your final wages calculation. What if a termination while on probation is unfair or unreasonable? There are two options available to you if you feel termination of your employment while on probation was unreasonable, unfair and/or unlawful: General protections claim; Unfair dismissal claim. General protections claim after termination while on probation If your employment is terminated while you are on probation and you think it is unfair, you may be able to apply for a general protections claim involving dismissal to the Fair Work Commission. The Fair Work Commission (‘FWC’) will determine if your employment was terminated due to a prohibited reason. Prohibited reasons can include: exercising your workplace rights (e.g., querying your pay, complaining about workplace bullying or harassment or workplace safety issues); discrimination; taking protected industrial action. If the FWC finds you were terminated for a prohibited reason, it will decide that the termination of your employment during probation was contravening relevant legislation and was unlawful. GET ADVICE FROM A WORKER'S COMPENSATION LAWYER:  1800 659 114 Termination of your employment while on probation because you were not suitable for the role is not a prohibited reason, and you will not be eligible for a general protections claim under those circumstances. Unfair dismissal claim after termination while on probation Another option available to you if terminated unfairly while on probation is an unfair dismissal claim . Generally, to be eligible for an unfair dismissal claim, you need to have completed a minimum six months of employment. Further, if your employer has less than 15 employees, you have to complete a minimum 12 months of employment before you can apply for unfair dismissal. When you consider applying for either a general protections claim due to dismissal or, if eligible, an unfair dismissal claim, the most important thing is that you have to lodge your application within 21 days of termination of your employment. The 21-day period starts the day after the dismissal. Additionally, you cannot lodge applications for both claims. If you are unsure of which type of claim is suitable for your specific circumstances, you should speak with an employment lawyer or your union. GET ADVICE FROM A WORKER'S COMPENSATION LAWYER:  1800 659 114 Other rights and entitlements while on probation Basically, your rights and entitlements while on probation are the same as the rights and entitlements for any other employees who are not on probation. These include rights and entitlements related to: your pay; workplace health and safety; worker’s compensation ; and, entitlements under the National Employment Standards (NES), such as annual leave. If you are employed as a full-time or part-time employee, you are entitled to accrue and access your leave entitlements, such as annual leave and personal leave, while you are on probation. Even if your employer tells you that you were unsuccessful before your probation ends, you are entitled to receive payment for accrued but unused annual leave. If your employer decides to make your role redundant during your probation period and your employment period is less than 12 months, you are not entitled to receive redundancy payments unless other industrial instruments, such as an award or enterprise agreement , state differently. Get help from an employment lawyer It is not easy to figure out your rights and entitlements under Australian employment law. It can be especially difficult when you are in a vulnerable situation, such as a probationary period. If your employer tells you that you failed to pass the probationary period and you need more information about your rights and entitlements and what legal options you have, our employment law teams across Australia are here to assist you. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/march/probation-periods/ Sun, 23 March 2025 00:00:00 In 2023, we wrote a blog on the Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Bill 2022. You can read our article, “Coercive control law changes in Queensland” here . Since then, there have been further changes to criminal law in Queensland related to coercive control. The Queensland government has made big moves when it comes to tackling domestic and family violence. From 26 May 2025 , coercive control will be a criminal offence with serious penalties – including up to 14 years imprisonment for offenders. Understanding coercive control Coercive control refers to a deliberate pattern of abusive behaviours aimed at dominating, manipulating and diminishing the autonomy of another person. Unlike physical violence, coercive control often manifests through psychological and emotional tactics, making it less visible but arguably more damaging. Some common behaviours and indicators of coercive control can be isolation, financial control, surveillance and manipulation. These behaviours collectively erode a victim’s sense of self and can precede physical violence. Key changes to coercive control laws in Queensland from May 2025 The Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024 (the Amendment Act ) introduces several critical measures: Criminalisation of coercive control Engaging in a pattern of abusive behaviours intended to control or coerce a current or former intimate partner, family member or informal (unpaid) carer will be illegal. Offenders may face up to 14 years imprisonment, which reflects the severity of the conduct. Definition of ‘course of conduct’ The new Chapter 29A Coercive control, will specify that: the perpetrator is, or has been, in a domestic relationship with the victim; the perpetrator engages in a course of conduct against the victim that consists of domestic violence occurring on more than one occasion; the perpetrator intends for that course of conduct to coerce or control the victim; and the course of conduct would, in all the circumstances, be reasonably likely to cause the victim harm. ‘Harm’ has been defined in the Amendment Act to mean any detrimental effect on the person’s physical, emotional, financial, psychological or mental wellbeing, whether temporary or permanent. Third party offences It will be illegal for individuals, such as friends, family or hired private investigators to engage in domestic violence behaviours on behalf of a respondent (the person using violence). Convictions in relation to this offence can result in fines or imprisonment, with stricter penalties being imposed for licensed professionals such as private investigators. Catalyst for changes to Queensland’s coercive control laws: Hannah Clarke The tragic case of Hannah Clarke and her three children , who were murdered by her estranged husband in 2020, served as a pivotal catalyst for these legislative reforms. This incident underscored the lethal potential of coercive control and highlighted the urgent need for legal recognition and intervention. Implementation and community preparedness The commencement date of 26 May 2025 allows time for comprehensive training and education in a variety of areas. Law enforcement training: police officers will receive specialised training to identify and respond effectively to instances of coercive control. Judicial education: judges and legal practitioners will be educated on the nuances of coercive control to ensure informed adjudication. Public awareness: initiatives will be launched to inform the public about the signs of coercive control and available support services, fostering a community-wide understanding. Support and resources to address coercive control Recognising and addressing coercive control is a collective responsibility, individuals who feel they may be experiencing such abuse, or those concerned about someone else are encouraged to seek support: Emergency assistance : if you or someone you know is in immediate danger, call Triple Zero ( 000 ) and request police assistance Support Services DVConnect: offers 24/7 crisis support and can be reached at 1800 811 811 1800RESPECT: provides confidential counselling support at 1800 737 732 Legal advice If you or someone you are concerned about may be experiencing abuse, or you have been charged with a coercive control offence, you should consult legal professionals experienced in domestic and family violence matters for guidance on protection orders and your legal rights. Queensland’s coercive control laws signify a transformative approach to tackling domestic and family violence. By criminalising pattens of non-physical abuse, the state acknowledges the profound impact of psychological manipulation and reaffirms its commitment to safeguarding the well-being of its residents. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/march/coercive-control-changes-may-2025/ Thu, 20 March 2025 00:00:00 If you are injured at work in Queensland, it is important to understand your rights and entitlements to workers’ compensation lump sum compensation. Injured workers have two options to pursue lump sum compensation; a statutory claim due to permanent impairment and common law damages if you believe your employer’s negligence contributed to your injury. In this article, we discuss: What is a statutory workers’ compensation claim (Queensland)? Lump sum compensation under a statutory workers’ compensation claim Can you challenge the lump sum compensation? Accepting or rejecting the offer of lump sum compensation Workers’ compensation common law claims (Queensland) What is a statutory workers’ compensation claim (Queensland)? In Queensland, when you have been injured at work or travelling to or from work , you may lodge an application for workers’ compensation with Workcover Queensland or your employers’ self-insurer. If your application for workers' compensation is accepted by the insurer, you have commenced what we refer to as a statutory claim. As part of your statutory claim, you may have entitlement to the following statutory benefits/compensation: funding of weekly benefits to cover for lost wages ; funding of medical treatment and rehabilitation for accepted injuries ; reimbursement of travel expenses related to your treatment. These benefits will be paid either weekly or as required, and you may be entitled to these benefits for up to a period of five years, depending on the severity of your injuries. You may receive these benefits until a point in time when you are able to return to your ordinary hours or when your injuries have stabilised and are unlikely to improve with further medical treatment, which is referred to as ‘stable and stationary’. At this point in time, you may be entitled to another form of compensation known as lump sum compensation. Lump sum compensation under a statutory workers’ compensation claim Unlike the statutory benefits listed above, lump sum compensation is a single payment made from Workcover or your employer’s self-insurer to compensate you if you have sustained a permanent impairment. What is permanent impairment? If you continue to be affected by your injuries despite completing the appropriate medical treatment, you have likely sustained a permanent impairment. To determine if you have sustained a permanent impairment, Workcover or your employer’s self-insurer will assess you for a degree of permanent impairment when your injuries are considered stable and stationary. The assessment process involves you being examined by an independent medical expert to assess whether your work-related injuries are stable and stationary and, if so, determine a percentage of permanent impairment for your injuries. For psychological injuries, an independent medical expert will still assess whether your injuries are stable and stationary. However, you will be referred to an independent body known as the Medical Assessment Tribunal, which consists of 3 to 5 independent medical experts in the relevant field, to provide you with a percentage of permanent impairment. If Workcover or your employer’s self-insurer does not arrange for you to be assessed for permanent impairment, it is important to understand that you may also request to undergo a permanent impairment assessment. Once you have undergone the degree of permanent impairment assessment, you should be issued with a document titled “Notice of Assessment” within 10 business days of Workcover or your employer’s self-insurer receiving the medical expert’s report. The Notice of Assessment will, among other things, outline the following: the injuries accepted as part of the workers’ compensation claim; the degree of permanent impairment for your accepted injury(s); a monetary offer of lump sum compensation. It is important to understand that you will only receive a monetary offer of lump sum compensation if you have been assessed as having a percentage of permanent impairment of 1% or higher. The monetary offer is calculated in accordance with the Workers’ Compensation and Rehabilitation Act 2003 .   Can I challenge the offer of lump sum compensation? If you have sustained a physical injury and have been assessed for permanent impairment, you have 20 business days from the date of your Notice of Assessment to make a decision whether you agree or disagree with the assessment of permanent impairment. If you choose to disagree with the Notice of Assessment, you can elect from the following options: You can elect for your injuries to be re-assessed by an alternative independent medical expert of your choice if Workcover or your employer’s self-insurer agree on the expert; You can elect to be re-assessed by the Medical Assessment Tribunal. If you are re-assessed by an alternative independent medical expert and you further disagree with the assessment of permanent impairment upon receiving the new Notice of Assessment, you have a further 20 business days to elect to be re-assessed by the Medical Assessment Tribunal. It is important to understand that any assessment from the Medical Assessment Tribunal is a final assessment, and you have no entitlement to disagree with the assessment provided. In addition, there are potential risks and benefits of disagreeing with a degree of permanent impairment. If you disagree with your Notice of Assessment, you will receive a new Notice of Assessment and you will not be able to accept the first Notice of Assessment at a later date. When your injuries are reassessed for a degree of permanent impairment, you will receive one of the following outcomes: a higher degree of permanent impairment; the same degree of permanent impairment; a lesser degree of permanent impairment. If the 20 business days have lapsed and you have not responded to the Notice of Assessment, you will be taken to have agreed with the degree of permanent impairment as assessed. Accepting or rejecting the lump sum offer of compensation In addition to the above, you will need to make an election whether to accept or reject the Notice of Assessment. Making an election on your Notice of Assessment is irrevocable and affects your rights to lump sum compensation or a common law claim (see below). It is, therefore, very important to understand the following: If you accept the Notice of Assessment, you will receive the lump sum compensation offered in the Notice of Assessment, but if your injuries are assessed with a permanent impairment of less than 20%, you will lose any entitlement to pursue a common law claim against your employer. If you reject the Notice of Assessment, you may have an entitlement to a common law claim but will not be able to accept the Notice of Assessment at a later stage. We strongly recommend that you seek legal advice upon receiving a Notice of Assessment to ensure you protect your rights to lump sum compensation and, if eligible, common law damages. GET ADVICE FROM A WORKER'S COMPENSATION LAWYER:  1800 659 114 Workers’ compensation common law claims (Queensland) If you’ve been injured at work and you believe your employer’s negligence contributed to your injuries, you can sue for common law damages. A common law claim is in addition to your workers’ compensation statutory entitlements like weekly payments and medical expenses. In Queensland, you will only have an entitlement to a common law claim against your employer if you have an accepted statutory workers’ compensation claim. When you are offered statutory lump sum compensation under the Notice of Assessment, that offer is only based on your degree of permanent impairment for your accepted injuries. And remember, if you accept an offer of compensation in your Notice of Assessment, you may lose your entitlement to seek common law damages. It’s crucial that you seek legal advice before accepting any offer. GET ADVICE FROM A WORKER'S COMPENSATION LAWYER:  1800 659 114 The lump sum compensation you can seek in a workers’ compensation common law claim can be significant as it takes into account, among other things, the following: permanent impairment; past and future economic loss; past and future loss of superannuation entitlements; and past and future medical, treatment, rehabilitation and travel expenses. Generally, in Queensland, you have only three (3) years from the date the cause of action arose to commence a common law claim for personal injury. It is, therefore, important that you seek timely legal advice if you intend to pursue a claim. Get help from a workers’ compensation lawyer After a workplace injury, though it is stressful and overwhelming to consider how your injury may impact you into the future, it is important that you seek legal advice to understand your rights and entitlements to lump sum compensation, both under your statutory claim and under a common law claim. This compensation can assist with the shaping of your life moving forward and secure your financial future. The Hall Payne workers’ compensation team is highly experienced in all aspects of workers’ compensation claims; both statutory entitlements and common law entitlements. We provide an initial free consultation for workers’ compensation inquiries, so it costs you nothing to find out where you stand. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/march/workers-comp-lump-sum-claims-qld/ Sun, 16 March 2025 00:00:00 If you’re a volunteer in NSW and you sustain an injury whilst undertaking your volunteer duties, you may be entitled to lodge a worker’s compensation claim . However, this entitlement is only available for those who volunteer for certain agencies. In this blog, we look at who is eligible to lodge a worker’s compensation claim, what the compensation entitlements are, and what to do if your claim is denied. If you are injured as a volunteer and you were not volunteering with one of the agencies (listed below), you may have other options, such as a public liability claim. You should seek legal advice if this has happened to you. GET ADVICE FROM A WORKER'S COMPENSATION LAWYER:  1800 659 114 Eligibility for worker’s compensation as a volunteer in NSW You are entitled to lodge a worker’s compensation claim if you meet the definitions outlined in the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 and your injury occurred whilst you were authorised to undertake activities as a volunteer for one of the following agencies: NSW Rural Fire Service; or NSW State Emergency Service; or Marine Rescue NSW; or Surf Life Saving NSW; or NSW Volunteer Rescue Association. What do I need to do when I get injured as a volunteer? You must report your injury to the agency you are volunteering for as soon as your injury occurs, or at the latest, within 6 months. It is the agency’s responsibility to lodge a claim with the NSW Self Insurance Corporation (SICorp) on your behalf. SICorp is required to deal with a claim for weekly payments of compensation within 31 days, or where it’s reasonably practicable, from the day you make the claim and supply SICorp with the documentation it requires to determine your claim. What are my worker’s compensation entitlements as a volunteer? If SICorp accepts liability for your worker’s compensation claim, you are entitled to receive the following benefits: Weekly payments for loss of wages; and Out-of-pocket medical, hospital and rehabilitation payments; and Lump sum payments for permanent impairment. If you reach the necessary threshold, you may also be entitled to lodge a work injury damages claim against the agency. This is known as a common law claim. Worker’s compensation weekly payments and medical expenses for volunteers Upon SICorp carrying out its investigations during the first 12 weeks of your worker’s compensation claim, it will either accept formal liability for your claim or issuing a dispute notice to you, declining liability for your claim. Upon SICorp accepting provisional liability for your worker’s compensation claim, you are entitled to receive up to 12 weeks of weekly compensation payments and medical treatment expenses up to $10,000.00. If SICorp does not accept provisional liability for your worker’s compensation claim, it is required to issue a reasonable excuse letter to you in writing. Weekly payments and medical treatment expenses for volunteers are calculated in the same way as an exempt worker under the Workers Compensation Act 1987 (‘1987 Act’). This mean that you are entitled to claim the following: Weekly compensation payments at the rate of your award rate of pay or base weekly wage for the first 26 weeks of your worker’s compensation claim, and the prescribed statutory rate for weekly compensation payments thereafter. Reasonably necessary medical treatment expenses, hospital treatment, rehabilitation services and domestic assistance (for example, housework, gardening etc). Permanent impairment lump sum claims as a volunteer When your workplace injury reaches maximum medical improvement (that is, your injury is well stabilised and is unlikely to change substantially in the next year, with or without medical treatment), you may be entitled to lodge a permanent impairment claim (for lump sum compensation) with SICorp pursuant to section 66 and 67 of the Workers Compensation Act 1987 . To be eligible to lodge a permanent impairment claim with SICorp, you need to have at least 1% whole-person impairment for a physical injury and 15% whole-person impairment for a psychological injury. In addition, to be eligible to receive pain and suffering compensation, you need to have a whole person impairment of at least 10%. Any compensation that you receive under section 66 and 67 of the Workers Compensation Act 1987 is in addition to any payments that you receive by way of weekly compensation payments and/or medical treatment expenses. In addition, you are entitled to lodge further permanent impairment claims should your workplace injuries deteriorate in the future. Worker’s compensation common law claims for volunteers In addition to the above entitlements, you might have a right to pursue a common law claim, which is also known as a work injury damages claim. To lodge a work injury damages claim, you must establish the following: Your injury is of a serious nature; You must reach the threshold of 15% whole-person impairment or greater; and You must establish that the employer was negligent in causing your injury. A work injury damages claim must be lodged within 3 years of the date of injury. Work injury damages claims are more complex than worker’s compensation claims. It is therefore crucial that you seek legal advice about pursuing such a claim to maximise any compensation payable to you. GET ADVICE FROM A WORKER'S COMPENSATION LAWYER:  1800 659 114 What if SICorp declines liability for my injury? If SICorp declines liability for your worker’s compensation claim, it is required to issue a section 78 notice (dispute notice) to you along with the evidence that it is relying upon to decline your claim. If you do not agree with SICorp’s decision to decline liability for your worker’s compensation claim (or any other adverse decision that it may make in relation to your claim), you may apply to the District Court of New South Wales to determine your worker’s compensation claim. SICorp is bound by the decision of the Court and the Orders it makes. Get help from a worker’s compensation lawyer If you’re injured as a volunteer in NSW, it can be difficult to determine your eligibility for worker’s compensation (or other compensation if you are ineligible for worker’s compensation). Our team of compensation lawyers can assess your specific circumstances and advise you on the best way forward to secure any compensation you may be entitled to. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/march/workers-comp-and-volunteers-nsw/ Sun, 09 March 2025 00:00:00 If you’re injured at work in Tasmania , you’re entitled to make a claim for a variety of worker’s compensation benefits. If you’ve lodged a claim and it’s been accepted, you are entitled to medical expenses and weekly payments for loss of income. In addition to these benefits, you may also be entitled to lump sum compensation due to permanent impairment. In this blog, we explore: who is eligible for a permanent impairment claim; how whole person impairment is determined; time limits for permanent impairment claims; disputing a decision about your claim; and how much compensation is payable for a permanent impairment claim. What is a permanent impairment payment? A payment for permanent impairment is a lump sum awarded under the Workers Rehabilitation and Compensation Act 1988 ( Act ) to a person injured at work, compensating them for the impact that the injury has had on their life. The permanent impairment lump sum is paid in addition to all other entitlements under the Act, including weekly payments, medical expenses, rehabilitation, and other benefits. Who is eligible for a permanent impairment lump sum payment? The Act details who is eligible to claim a lump sum for a permanent impairment after a workplace injury. Permanent impairment claims due to a physical injury For physical injuries, a worker must demonstrate that they have at least a 5% whole person impairment. (see below for more information on whole person impairment). A worker may qualify for a lump sum if their whole person impairment is less than 5% if their injury relates to loss of part, or all, of a finger or toe. Permanent impairment claims due to a psychiatric injury or illness For psychiatric injuries, a worker must demonstrate that they have at least a 10% whole person impairment. Importantly, the worker will not qualify for a psychiatric whole person impairment unless their psychiatric injury has been directly caused by their workplace incident. This is known as a primary psychiatric injury. An example of a secondary psychiatric injury, which would not qualify for a whole person impairment lump sum, is when a worker suffers from anxiety/depression because of changes in their lifestyle following a physical injury at work. How is whole person impairment determined for worker’s compensation in Tasmania? A whole person impairment assessment must be undertaken by an accredited medical practitioner. We recommend seeking legal advice so that an appropriately qualified expert can be arranged for you. GET ADVICE FROM A WORKER'S COMPENSATION LAWYER:  1800 659 114 If the worker has multiple injuries arising out of the same incident, then the whole person impairment assessment for each of those separate injuries can be combined to claim a lump sum payment. Having an experienced worker’s compensation lawyer help you with your claim will ensure all your injuries are accounted for and will maximise the compensation payable. When can I claim lump sum compensation for permanent impairment? A worker’s injury must have stabilised before a claim for permanent impairment lump sum can be made. Prior to an impairment evaluation, it must be shown that the impairment is unlikely to change substantially, regardless of any further medical treatment. Once this occurs, the injury is referred to as ‘stabilised’. An injury has stabilised if the impairment is unlikely to change by more than a 3% whole person impairment in the next year. An accredited medical practitioner is able to give this opinion. Time limits to claim worker’s compensation permanent impairment Provided that a worker’s compensation claim has been made in accordance with the Act, there are no time limits which apply to making a claim for a permanent impairment lump sum compensation. This is the case even if your worker’s compensation claim was made several years ago or even a decade ago. Notably, however, delays in bringing a claim for a permanent impairment can negatively affect the potential for a successful claim. If you think you may have an entitlement to a permanent impairment lump sum, we recommend seeking legal advice as soon as possible. GET ADVICE FROM A WORKER'S COMPENSATION LAWYER:  1800 659 114 Can I dispute the decision about my permanent impairment claim? When seeking permanent impairment lump sum compensation, you may be asked to do an assessment by your employer. You may disagree with the outcome of the assessment and choose to obtain your own assessment. This can lead to a dispute in relation to the correct impairment percentage to be attributed to your injury. These disputes can be resolved through negotiation or, if this fails, by issuing proceedings in the Workers Compensation Tribunal. For more information about disputing decisions related to your worker’s compensation claim, you can read our earlier blog, “What to do if your Tasmanian worker’s compensation claim is disputed?” How much can be claimed for impairment after a workplace injury? The compensation payable for a permanent impairment claim varies depending on the year that the injury occurred, the nature of the injury, and the percentage of the whole person impairment. An example of lump sum compensation payable A worker suffers an injury to their leg in 2024; The injury does not involve the loss of a finger or toe; If the worker is assessed as having a 5% whole person impairment, the compensation payable will be $18,690.12; If the worker is assessed as having 20% whole person impairment, the compensation payable will be $113,698.23. Get help from a worker’s compensation lawyer We strongly recommend seeking legal assistance when claiming lump sum compensation for permanent impairment after a workplace injury. Our lawyers are highly skilled and experienced in worker’s compensation permanent impairment claims. We will prepare your claim thoroughly and ensure all aspects of your injury or illness are included in the claim, to maximise the compensation payable to you. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/march/workers-comp-lump-sum-tas/ Sun, 02 March 2025 00:00:00 In February 2025, Hall Payne Lawyers secured a significant win in the Supreme Court of Tasmania when the Court handed down a decision clarifying what the Tasmanian Civil and Administrative Tribunal ( “the Tribunal” ) must consider when determining whether an employer has a “reasonably arguable case” to dispute a worker’s compensation claim. This decision means the Tribunal must give greater scrutiny of the evidence before it determines worker’s compensation claims. Case reference: Morrison v State of Tasmania [2025] TASSC 5 Events that led to a worker’s compensation claim for psychological injury A worker made a claim for worker’s compensation (Tasmania) for a psychological injury he acquired while working as a high school teacher at the Futures Program at Rosny College in Hobart. The Futures Program is located on the other side of Kangaroo Bay, approximately two kilometres from the main Rosny College campus. The injury arose due to three decisions made by the employer, which included: the school’s decision to readmit two students to the Futures Program (at another site away from the primary campus) who had a history of violence towards teachers and students at the school; the decision failing to expel them from the school; and the failure to consider the safety implications for staff and students. The worker attended a meeting with the principal and assistant principal on 4 April 2024, where these decisions were relayed to him. This precipitated his incapacity for work due to a psychological condition. The worker had a history of students engaging in violent incidents towards him and others over the course of his employment, including: a “really bad assault” by a student in 2012; an incident in 2022 when a student raised a chair and threatened to throw it at the worker; and a student threatening another student with a knife at the premises of the school, where the worker had to intervene by standing between them. The worker lodged a worker’s compensation claim for psychological injury following the meeting on 4 April 2024. The Tribunal’s initial determination – worker’s compensation benefits ceased At first instance, the Tribunal needed to determine whether the employer had a “reasonably arguable case” to dispute the claim. Under the Workers Rehabilitation and Compensation Act 1988 ( “the WRC Act” ), compensation is not payable in respect of a disease which is an illness of the mind (i.e. a psychological illness/injury) where that injury arises from reasonable administrative action taken in a “reasonable manner by an employer in connection with a worker's employment”. When an employer disputes a claim, they must file all the evidence to the Tribunal that they are relying on to make their case. The employer must prove that they have a reasonably arguable case to dispute a worker’s claim. This means they need to satisfy the Tribunal, on the evidence presented, that there is a possibility at a final contested hearing that it may be accepted and, therefore, the claim might ultimately fail. In this matter, if the employer could reasonably argue the worker’s psychological injury arose substantially from “reasonable administrative action taken in a reasonable manner by an employer in connection with the worker’s employment”, this forms an exemption to an entitlement to workers' compensation benefits. The Tribunal determined that a reasonably arguable case existed for the employer to dispute the injured worker’s claim, and his entitlement to weekly payments and medical expenses ceased on 21 August 2024. The Supreme Court decision – worker’s compensation benefits reinstated Hall Payne Lawyers assisted the worker in appealing the Tribunal’s decision to the Supreme Court of Tasmania. The Supreme Court disagreed with the determination made by the Tribunal. Associate Judge Marshall determined that the Tribunal had failed to consider whether the actions of the employer satisfied all four elements of section 25(1A)(c) of the WRC Act. These elements include: The decisions made by the employer could be defined as “administrative action”; The administrative action was reasonable; The administrative action was taken in a reasonable manner; The administrative action was taken in connection with the worker’s employment. Considerations of the Supreme Court that led to the Tribunal decision being overturned His honour determined that the decisions made by the employer were administrative action (element 1 above) and that they were taken in connection with the worker’s employment (element 4 above). However, His Honour determined that the Tribunal had completely ignored the question of whether the administrative action was reasonable (element 2 above) or taken in a reasonable manner (element 3 above).  The Supreme Court determined that based on the evidence before the Tribunal, they could not have come to the conclusion that the administrative action was reasonable or had been taken in a reasonable manner. This is because the employer solely relied on a statement from the principal of the school to satisfy all four elements. The principal’s statement outlined that the injured worker was informed that all reasonable steps had been taken concerning the incident involving the students in line with Department of Education, Children and Young People policies and documentation. However, no evidence of the policies and documentation were ever provided to the Tribunal to support this assertion. The uncontested facts also showed that the two students were too great a risk to be re-admitted to the main Rosny campus of the school, but it was determined they could be admitted to the Futures Program at a separate campus instead. His honour was also troubled by the way the meeting was conducted on 4 April 2024, which precipitated the worker’s incapacity for work. The meeting was attended by the worker and the assistant principal. The assistant principal sought the attendance of the principal to be a witness in the meeting. The worker was denied the presence of a union representative when he queried whether one should be in attendance. The worker was told the students would be re-admitted to the school and would not be prevented from returning. There was no evidence produced by the employer that showed they had discussed or considered with the worker, any safety measures that were to be put in place. His honour determined that the worker’s background was important to consider in this matter, including: him expressing he felt unsafe with those students at the school; his prior history of violent incidents with students; the lack of consultation between the school and the affected employees; and the denial of a union representative when the worker asked if he needed one. These factors led to the Court’s decision that on the evidence before the Tribunal, there could be no determination that administrative action was reasonable or conducted in a reasonable manner. It is on that basis that His Honour allowed the appeal, set aside the Tribunal’s decision of 21 August 2024 and ordered the worker’s weekly payment of worker’s compensation be reinstated with immediate effect, including reimbursement for loss of weekly payments caused by the cessation. Get help from a worker’s compensation lawyer If your worker’s compensation claim is disputed or rejected, or you have any other issues during the life of your claim, our worker’s compensation team in Tasmania are highly experienced in helping injured workers get all the compensation they deserve. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Further reading – worker’s compensation Tasmania WorkCover Tasmania - your plain English guide to workers' compensation What to do if your Tasmanian worker’s compensation claim is disputed? Termination of workers compensation claims Tasmania due to whole or substantial recovery https://www.hallpayne.com.au/blog/rss/blog/2025/february/tas-workers-comp-win-over-reasonable-admin-action/ Wed, 26 February 2025 00:00:00 Misrepresentation involves providing false or misleading information that induces another party to act, leading to potential harm or loss. In the workplace, misleading and deceptive conduct by employees or employers can lead to financial, professional and legal consequences. Deceptive and misleading conduct is often only associated with consumer law because it comes from the Australian Consumer Law ( ACL ).   However, its principles also extend to the employer-employee relationship in various ways.  What is employee misrepresentation? There are a number of ways an employee may be determined to have behaved in misleading and deceptive conduct. Such misrepresentation often occurs during the recruiting process, leading to an appointment based on false information or relevant information the employee failed to disclose. An employee might misrepresent their qualifications, experience or skills during the recruitment process to secure a job. This can include: falsifying academic credentials; exaggerating previous job experience; or saying they have skills they do not possess. Such misrepresentations can be seen as misleading and deceptive conduct under the ACL because they deceive the employer into making employment decisions based on the false information that has been provided. If discovered by the employer, this could result in termination of the employee, legal action and damage to their professional reputation. Employees may also misrepresent their performance, productivity or conduct to maintain their job or secure a promotion. This can involve: falsifying timesheets; overstating achievements; or concealing errors and misconduct. What action can be taken against employees for misleading and deceptive conduct? While the ACL primarily focuses on consumer protection, its principles against deceptive conduct can apply in employment contexts where such misrepresentation affects business operations and decision-making. The following are some misrepresentation-based circumstances where the employment may be terminated: The misrepresentation was discovered during a probation period; The misrepresentation caused harm to the business (financially or otherwise), which could provide a defence for termination; The misrepresentation constituted serious misconduct such as fraud or other criminal offences. When employees misrepresent their qualifications, it can lead to significant legal and employment consequences. The below case illustrates how the Fair Work Commission has dealt with such situations. Case Review - Charles Tham v Hertz Australia Pty Limited T/A Hertz [2018] FWC 3967 Charles Tham was dismissed after Hertz discovered he had falsified his resume regarding the duration of his previous employment. Following this, he lodged an unfair dismissal application. The Fair Work Commission ( FWC ) upheld the dismissal and emphasised that Tham’s intentional misrepresentation undermined the necessary trust and confidence Hertz has in his ability to perform his role. The FWC specifically noted that “ the gravity of the intentional dishonesty upon which Mr Tham was based, when considered in its totality, represents matters which were fundamentally inconsistent with the continuation of the employment relationship. ” This case demonstrates that Australian law treats misrepresentation of qualifications seriously, often resulting in lawful termination of employment. Misleading an employer about qualifications undermines the trust essential for any employment relationship and can lead to significant legal consequences. Under the ACL, such misrepresentation can be challenged as it affects the decision-making process of potential employers. What is employer misrepresentation? Employers are obligated to provide accurate information about job roles, responsibilities and conditions. Misrepresenting job descriptions or employment terms to attract candidates can be considered misleading and deceptive conduct under the ACL. This can include: overstating job opportunities, including the future prospects of the business; a promise of minimum hours for a casual worker that does not eventuate; misrepresenting the nature of the work; or downplaying job challenges of the role. It can also include inaccurately communicating full terms and conditions attached to benefits or remuneration. When employees find the actual job differs significantly from what was represented, it can lead to dissatisfaction, turnover and potential legal claims. Employers may also misrepresent the company culture, work environment, or opportunities for career advancement to attract talent. If the actual work environment is significantly different from what was promised, employees may feel misled and dissatisfied. Under the ACL, such misrepresentation can be challenged as it affects the decision-making process of potential employees. Case Review - Morton v Interpro Australia Pty Ltd & Anor [2009] FMCA 423 In this case, Mr Morton was a senior sales employee. He claimed that his employer, Interpro Australia, deceived him about the terms of his employment – specifically about a commission-based bonus scheme. Interpro promised a highly lucrative bonus scheme during the hiring process, which convinced Mr Morton to accept the job and move from the United Kingdom to Australia. However, after he moved and began working with Interpro, they replaced the bonus scheme with a less advantageous one. The Federal Magistrates Court, as it then was, found that Interpro’s conduct was misleading and deceptive under the Trade Practices Act 1974 (which has now been replaced by the Competition and Consumer Act 2010 . The Court held that the false representation led Mr Morton to accept the position and relocate internationally and ordered Interpro to pay him over $20,000 in damages. What action can be taken against employers for misleading and deceptive conduct? Employees have a number of options available to them if their employer has engaged in misleading and deceptive conduct: Compensation under the Competition and Consumer Act 2010 (Australian Consumer Law); A common law claim for breach of the employment contract Compensation options under Australian Consumer Law The ACL provides a framework for addressing and remedying misleading and deceptive conduct. Employees who have been misled by employers can seek compensation through legal channels, potentially claiming monetary compensation for losses incurred due to the misrepresentation. Employers found to have made misrepresentations can face significant penalties, including fines and orders to rectify the misrepresentation. A common law claim for breach of the employment contract If an employer has made false representations within an employment contract, for example, related to remuneration, and the employee suffers loss due to that misrepresentation, they may be able to bring a claim for breach of contract at common law to seek compensation. Get help from an employment lawyer If you think your employer has misled and deceived you and misrepresented your job by making false statements and false promises, please contact our team.  Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/february/misleading-deceptive-conduct/ Sun, 23 February 2025 00:00:00 The Australian Health Practitioner Regulation Agency (AHPRA) regulates all registered health practitioners in Australia. It has a wide range of powers to investigate and take action in respect of a wide range of conduct and other matters. When someone lodges a complaint or concern with AHPRA, it’s called a notification. This blog is a guide to the first steps a health practitioner should take if they receive a notification from AHPRA. Contact by AHPRA regarding your professional registration is likely to set alarm bells ringing, whether it be a vexatious complaint by a patient or a serious allegation of harm or misconduct. Regardless of the content of your AHPRA notification, what you do next can have a significant impact on your registration and, therefore, on your ability to work in your chosen field. Here, we set out a step-by-step guide on how to best navigate the situation after receiving an AHPRA notification. Practical steps if you receive an AHPRA notification Act promptly. Do not let matters languish to the last minute. If you intend to seek legal advice, do this quickly. GET ADVICE FROM A HEALTH LAW SOLICITOR:  1800 659 114 Be clear as to what you are being asked by AHPRA to do, if anything. In many instances, you will be asked to take action, for instance, by attending an interview, providing further information and/or documentation, or drafting a written response to specific queries. In many cases you are not required to respond if AHPRA is inviting you to provide a submission. You should obtain legal advice about if you are required to, or should, make a response to the notification. Carefully consider the potential consequences in any response you provide. Weigh up whether providing a response is in your best interests. For instance: if you attend a meeting, you may say something that can be taken out of context and will worsen the situation; if you admit to certain conduct or behaviour orally or in writing (even if you feel you have a good excuse), this could potentially lead to disciplinary or criminal charges being brought against you; and whether or not a well-thought-out response that appropriately tells the full story of what has happened and sets out any mitigating factors is likely to reduce potential sanctions or even exonerate you fully. Generally, you will be given a date by which you are required to substantively reply to an AHPRA notification. Do not miss this deadline. A failure to reply by the due date may be taken as concession the allegations are not contested. It will also reflect badly on you and your professionalism. That said, the deadline is not always absolute and may be subject to an extension in the event you are not able to reply in time. The AHPRA process and associated disciplinary processes can take many months or even years, and memories can fade over time. Ensure that you preserve all documentation that relates to the matter. You may also wish to record straight away your recollections of what happened (including your understanding and reasons for the decisions you made) in a memo to yourself. This can be helpful reference material in the future. Ensure you have support Ensure that you have a support network. Even when you feel that you are not rattled enough to seek professional help, such as counselling or medical treatment, there is no doubt that an AHPRA notification is often stressful. At the very least, the process will cause inconvenience and take time away from your other responsibilities. Just having a friend or trusted colleague to speak to is sometimes enough emotional support, however, if you feel you need further support, some of the free resources available to health professionals are: Hand-n-Hand Peer Support Talk to a counsellor - Beyond Blue The wide range of practitioner support services listed on AHPRA’s website Get help from a health law lawyer In the event you require legal advice, or even if you just wish to discuss whether legal assistance might benefit you, we have a team of lawyers at Hall Payne with a wealth of experience in dealing with health regulators. In addition, Hall Payne has lawyers who specialise in employment and criminal matters (in the event these things potentially overlap), so that all aspects of the matter can be dealt with by our team. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au   Acknowledgement: We’d like to thank Meredith Jacobs for the research and sharing of her knowledge and expertise in the initial drafting of this article. Further reading: Making statements over the phone to AHPRA What happens when conditions are imposed on a health practitioners’ registration? Immediate action against health practitioners https://www.hallpayne.com.au/blog/rss/blog/2025/february/ahpra-notifications/ Sun, 16 February 2025 00:00:00 There are many reasons why a disability insurance claim like income protection or a total and permanent disablement (TPD) claim might be rejected or declined. Your claim may have been rejected simply because insufficient information or supporting evidence was provided with your initial claim documentation, or for TPD claims, for example, you may not have met the definition of TPD. Whatever the reason, there are options to appeal a rejected income protection or TPD claim. Know the terms of your insurance policy It pays to understand the basis upon which your income protection or TPD claim was declined. Each insurance policy will have its own definitions that need to be satisfied in order to receive an insurance benefit, and many of these definitions interlink with each other. In our experience, it is important to obtain a copy of the full policy document, not merely rely on extracts inserted into an insurer’s reasons for declining your claim. Some common reasons for income protection and TPD claims being rejected include that: the claimant did not meet the policy definition of disability for their specific claim type; the claimant did not have the support of their doctor(s); the policy was not active at the time of injury or illness; the claim was lodged with insufficient supporting evidence. Three options to review a decision to reject an income protection or TPD claim Step 1 – internal review with the insurer You should always seek to have a rejected income protection or TPD claim reviewed by the insurer through their internal review or complaints process. When the insurer sends notification of your claim being denied, they are also required to provide you with information on how and where to request a review of the decision they have made. At this very important stage you should make sure that you clearly set out why you feel the decision to reject your claim was wrong and provide supporting evidence to substantiate those reasons. Insurers don’t always get it right the first time, and there is no cost to you to seek an internal review. The review or complaint process is handled by someone different to the original decision-maker, and they quite often sit within a separate department within the insurer. A review of a decision should also be handled relatively quickly in comparison to the length of time that it may have taken for them to originally decline your claim. This is relevant for all types of insurance claims, not just income protection claims or total and permanent disablement claims against disability insurance cover held within a super fund. Step 2 – external review to AFCA If the internal review process is not successful, the next step could be to submit a complaint through the Australian Financial Complaint Authority (AFCA). According to AFCA’s website , it is a: “… non-government ombudsman service providing free, fair and independent help with financial disputes. It is a one-stop-shop for consumers and small businesses who have a dispute with their financial firm, over things such as banking, credit, insurance, advice, investments or superannuation. Where an agreement cannot be reached between parties, AFCA can issue decisions that are binding on financial firms.” AFCA has different rules and time limits depending on whether your complaint relates to an insurance claim through a super fund or directly with an insurer. Due to the strict time limits, we recommend you make your complaint as soon as possible after receiving the decision of the internal review process. AFCA’s dispute resolution process is designed to be quick, cheap and simple, utilising the guiding principle of ‘fairness’. There is no application fee, and no costs can be awarded against you as the person bringing the complaint. Your complaint can be resolved by AFCA in a number of ways including payment of an amount of money, but limits or caps apply. As they are not a court, legal principles guide the likely outcome, but they also take into account industry codes and guidelines, good industry practice and previous relevant decisions to decide what is fair in all the circumstances. Step 3 – take your matter through the court system If the internal review process fails and your complaint to AFCA does not deliver the payout you are seeking, you can issue court proceedings. It should be noted, however, that unlike the internal review process and the AFCA process (which are both free to pursue), court proceedings can be very costly, time-consuming and stressful. Get help from an experienced disability insurance adviser At Hall Payne Lawyers, we assist with a range of disability insurance claims, including TPD, income protection and trauma insurance. We can help you understand the reasons your claim was rejected so you can make an informed decision on whether to review the decision with our assistance. If you haven’t yet commenced your claim, having someone on your side who understands the claims process, as well as the insurer’s obligations and the legal terminology, is often the difference between having your claim accepted or rejected by the insurer in the first instance. If your disability insurance claim has been denied, is taking too long, or you have any other concerns in relation to TPD, income protection, trauma insurance or death benefits, get in touch with a member of our superannuation and insurance team. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Further reading about disability insurance claims Can I return to work after a successful TPD claim? Can I claim TPD and income protection at the same time? Insurance options inside superannuation https://www.hallpayne.com.au/blog/rss/blog/2025/february/tpd-ip-rejected-claim/ Mon, 10 February 2025 00:00:00 Australian doctors and healthcare providers have a duty to exercise reasonable skill and care when treating and diagnosing their patients to avoid causing them harm. When a medical professional misdiagnoses a condition or illness, it can have serious repercussions on the patient’s health and well-being, and could pave the way for a medical negligence claim. In this blog, we will build on our earlier article titled "Medical negligence claims in Queensland" and explore what failed or delayed misdiagnosis is, the adverse consequences it can have on patients and when a misdiagnosis may give rise to a medical negligence claim for compensation.  What is medical misdiagnosis? Medical misdiagnosis describes when a doctor or healthcare provider makes an error when diagnosing a patient’s condition or illness. Medical misdiagnosis is an umbrella term which encompasses the various ways in which a doctor or medical professional makes a mistake when either providing a patient with a diagnosis of their condition or by failing to provide a diagnosis at all. The three most common types of misdiagnoses which can potentially give rise to a medical negligence claim are: Missed diagnosis This refers to when a doctor or medical professional has failed to diagnose a patient’s condition entirely. Delayed diagnosis This occurs when a patient’s condition is not diagnosed by a doctor or medical professional within a reasonable timeframe. Wrong diagnosis This describes when a doctor or medical professional diagnoses a patient with an incorrect condition. Although a medical misdiagnosis can have significant consequences on a patient’s health and well-being, it will not automatically give rise to a medical negligence claim for compensation. A brief overview of medical negligence claims Medical negligence claims provide compensation to individuals who have been harmed because a medical professional or healthcare provider failed to treat them with the reasonable care and skill expected from the Australian medical community. For a successful medical negligence claim, it must be proven that: the doctor/medical professional owed the patient a duty of care; the doctor/medical professional breached that duty of care by an act or omission; the patient suffered physical and/or psychological harm; and the breach of the doctor/medical professional’s duty of care caused the patient harm. Due to the special vulnerability of patients who are experiencing health complications, and the extensive knowledge, expertise, and skill which medical professionals possess, it is accepted in Australian negligence law that the relationship between a doctor and their patient gives rise to a duty of care. Medical professionals owe a duty to treat, advise and diagnose their patients to the standard of care which is expected. Under this duty, medical professionals must ensure the safety and well-being of their patients by avoiding acts or omissions which cause harm. Medical negligence claims are, by their nature, very complex. Seeking advice and assistance from a lawyer experienced in personal injury claims, and in particular medical negligence claims, can optimise the success of your claim. GET ADVICE FROM A PERSONAL INJURY LAWYER:  1800 659 114 When does medical misdiagnosis give rise to a medical negligence claim? There are many ways in which a doctor or healthcare provider may breach their duty of care which results in a misdiagnosis. By way of example, if a medical professional fails to refer a patient for the appropriate diagnostic examinations, or fails to refer them at all, it can result in a wrong or missed diagnosis. This can also lead to a delayed diagnosis, particularly if the doctor or healthcare provider does not follow up with a patient who presented with abnormal test results. If it can be proven that the medical professional breached their duty of care or that another doctor in the same or similar position would not have acted in the same manner, then the patient may be entitled to bring a medical negligence claim against the medical professional. Another element which must be established for a successful medical negligence claim is that the patient suffered harm as a result of the medical professional breaching their duty of care. When a doctor or healthcare provider misdiagnoses a patient’s condition or illness, it can have serious repercussions on the patient’s health and well-being. A far too common consequence of medical misdiagnosis is its negative impact on a patient seeking and undergoing the appropriate treatment to address their condition and respective symptoms in a timely way. A wrong diagnosis may lead to the patient undergoing the incorrect treatment or no treatment at all, and a delayed diagnosis may result in an unreasonable delay in the patient receiving the appropriate treatment that would, more likely than not, have led to a favourable outcome for the patient. A missed diagnosis potentially can result in the patient receiving no treatment at all. When a patient undergoes incorrect treatment, experiences an unreasonable delay in receiving the appropriate treatment, or receives no treatment at all, it may cause them physical injury and psychological harm with associated significant financial burdens. If you have been misdiagnosed or there has been a delayed diagnosis of your medical condition and are unsure whether you have a medical negligence claim, you can speak about your circumstances to one of our experienced lawyers, who will advise whether it amounts to medical negligence. GET ADVICE FROM A PERSONAL INJURY LAWYER:  1800 659 114 Compensation for a successful medical misdiagnosis claim If you are successful in a medical negligence claim, you may be entitled to recover the following compensation: Pain, suffering and loss of life enjoyment; Medical, hospital and rehabilitation expenses incurred in both the past and future; Past and future loss of earnings and superannuation contributions; Care provided to you, either by paid professional services or gratuitously by family and friends; and Out-of-pocket expenses, including but not limited to: medications; travel expenses; equipment; and home or vehicle modifications. Get help from a personal injury lawyer At Hall Payne Lawyers, we understand that the medical negligence claim process can be very confusing and complex. Our medical negligence lawyers have extensive knowledge and experience and can help to ensure you receive the compensation you are entitled to. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/february/med-neg-misdiagnosis/ Sat, 01 February 2025 00:00:00 A lot of employees ask, ‘can I be defamed during a workplace investigation?’ Most workplace investigations will involve some form of allegation or accusation. Defamation laws exist to protect a person’s reputation, including protection from unfounded accusations.   What is defamation? Because defamation laws vary from state to state, this article only provides a broad overview of the law. If you’re considering your rights in relation to defamation, it’s best to seek legal advice.  GET ADVICE FROM AN EMPLOYMENT LAWYER:  1800 659 114 Defamation generally arises where there is communication (which might be written or verbal) which leads to a loss of reputation for an individual and where there is no available defence. For example, if Person A tells a group of people that Person B has committed a particular crime and there is no evidence to support that accusation, Person A might be liable for defamation. Because defamation is concerned with a person’s reputation, a communication from one person to another (that isn’t seen or overheard by anyone else) usually won’t be defamation. Making a successful defamation claim can involve a high bar – depending on the state you’re in, you might have to first prove that the reputational harm was “serious” or not “trivial”.  Serious harm may not arise for a number of reasons, including that the defamed person already had a bad reputation, the gravity of what was said wasn’t very high, or only a small group of people received the defamatory communication. In the context of a workplace, particularly where there are only a few employees and where allegations may not be very grave, this might make it difficult to reach the required threshold for making a defamation claim (even if some low-level defamation has occurred). For more detailed information about defamation, you can visit our “Defamation Law” page . Workplace investigations and defamation In the workplace, the situation with regard to defamation is a little more nuanced because of some of the defences that are available in relation to defamation claims, as well as that many of the examples that could arise might not be serious enough to justify making a claim.   A common scenario in which defamation is contemplated in the workplace is during a workplace investigatio n.   For example, if an employer is investigating suspected misconduct, they might put the allegation to a particular employee or group. It might also be the case that in making a complaint, an employee communicates potentially defamatory material, for example: “My manager is a bully” .   How something is worded will have a strong bearing on whether it is defamatory. For example, it may not be defamatory if put as an allegation rather than a concluded fact. Determining who is responsible for the defamation One of the key considerations in defamation proceedings is the question of who the “publisher” is; that is, the person who ultimately issues the communication. In some circumstances, employers can be held liable for the actions of their employees or agents, like external workplace investigators. This means that the employer may be responsible for defamatory communications issued by people acting on its behalf. If you believe you have been defamed but you are unsure of precisely who is responsible (that is, who you would issue defamation proceedings against), you should seek legal advice. GET ADVICE FROM AN EMPLOYMENT LAWYER:  1800 659 114 What are the defences to a defamation claim? There are some defences to a claim of defamation that are particularly relevant to workplace investigations. The truth (or justification) If something is substantially true, it’s unlikely to be considered defamatory. Defamation is primarily concerned with false assertions, not true ones. Honest opinion If something is expressed as an honest opinion instead of being asserted as the truth, and that opinion relates to the public interest and is based on proper material, then it also may not be defamatory. Qualified privilege Qualified privilege is a defence to defamation that arises in certain unique contexts. The defence, which is particularly relevant in the context of workplace investigations, arises if it can be shown that: the person who received the communication had an interest in a particular subject. For example, an employee and their workplace delegate might have an interest in receiving communication about an allegation made against the employee; or, an employer might have an interest in receiving a complaint made by a staff member against their manager; the communication occurred in the context of giving that information; the publication (or communication) was reasonable in the circumstances. If qualified privilege can be shown, it’s not necessary for the defendant to prove the truth of what was communicated. The defence of qualified privilege may not be available if the person making the defamatory communication is motivated by malice – for example, a completely false statement that’s knowingly made purely to harm someone. Remedies for employees defamed during a workplace investigation The financial remedies for a successful claim of defamation are based on the damage done to a person’s reputation and can include compensation. Naturally, this will depend on the extent of the harm caused and could turn on things like what the actual loss was and how serious the defamation was. For example, the financial damage caused by defamation that leads to a person losing work or future opportunities could have a calculable monetary value. Additional compensation, subject to any applicable caps, may also be payable for the general loss to the person’s reputation. Other remedies are also available in defamation cases, such as orders that defamatory material no longer be published.  Get help from an employment lawyer Careful consideration needs to be given to whether it’s worth pursuing an action in defamation, particularly if the defamatory material wasn’t published widely and there has been no real economic loss. Running defamation cases can be costly, the amount of damages or compensation available may not be high in some cases and, if you lose, costs may be awarded against you. Often, a more viable way to push back against the reputational damage is to defend any allegations made against you as a part of the workplace investigation or similar. If you believe you have been defamed during a workplace investigation and you want to understand your rights, please get in touch with one of our award-winning employment lawyers. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/january/defamation-from-workplace-investigation/ Sun, 26 January 2025 00:00:00 If you are a health professional or run a business that advertises health services, you must not engage in deceptive and misleading conduct. In this blog, we discuss health professionals’ obligations when it comes to advertising their services or therapeutic goods with a focus on the Australian Consumer Law ( ACL ) and the Health Practitioner Regulation National Law ( National Law ). Health practitioners’ obligations under the Australian Consumer Law Section 18 of the ACL prohibits anyone in trade or commerce from engaging in conduct that is misleading or deceptive or is likely to mislead or deceive. Trade or commerce includes business or professional activities as well as not-for-profit business or activity. While health practitioners may not always consider that in practising their profession, they engage in ‘trade or commerce’, they must be aware that providing a professional service or selling a therapeutic good may fall into this definition. Further, health practitioners (particularly those in private practice) should be aware that when they provide a service, they are likely entering into a contract – even if nothing is written down. The test for whether conduct (including statements such as those contained in advertising) is misleading or deceptive is whether the conduct leads, or is capable of leading, a person into error. That is, by allowing a person to form the wrong conclusion, or by creating a false impression, or remaining silent on important information or making false claims about a product or services. When the Courts are asked to consider whether conduct is misleading or deceptive, they ask themselve,s “what is the dominant impression created by the statement?” This means that even if the statement is literally true, it may still be misleading or deceptive if the dominant impression it creates is false. If this test is satisfied, the person who is responsible for the conduct may risk a civil claim being brought against them by the person who was misled or deceived seeking compensation under s.18 of the Competition and Consumer Act 2010 . Alternatively, the individual or business responsible could be fined under s.29 of the ACL by the Australian Competition and Consumer Commission ( ACCC ), which is responsible for enforcing the ACL. Section 29 of the ACL is similar to s.18, but it is a civil penalty provision, meaning that the ACCC has power to issue significant fines for a contravention. The ACCC is more likely to get involved in circumstances where a health practitioner is advertising a therapeutic good such as a medicine or medicinal device. Health practitioners’ obligations under the Health Practitioner Regulation National Law The other relevant law relating to misleading and deceptive conduct for health practitioners is contained in sections 113 to 120 and section 133 of the National Law. It is vitally important that health practitioners are familiar with the prescriptions on advertising under the National Law as a failure to comply with the restriction may result in disciplinary action being taken by your National Board, or proceedings being commenced against you seeking the imposition of significant financial penalties. Misleading use of professional titles Sections 113 to 120 involve the protection of titles. These provisions provide that a person must not knowingly or recklessly use a protected title (e.g., medical practitioner, registered nurse etc.) in such a way that it could be reasonably expected to induce a belief that they are a registered practitioner under the National Law. In other words, you cannot call yourself a medical practitioner unless you are registered as one. Persons who contravene this prohibition risk serious consequences; fines of up to $60,000 for individuals and $120,000 for corporations. Individuals can also be jailed for up to 3 years. False, misleading or deceptive advertisements by health practitioners Section 133 of the National Law prevents a health practitioner from advertising a health service or a business that provides a health service in a way that: is false, misleading or deceptive or is likely to be misleading or deceptive; offers a gift, discount or other inducement to attract a person to use the service or the business, unless the advertisement also states the terms and conditions of the offer; uses testimonials or purported testimonials about the service or business; creates an unreasonable expectation of beneficial treatment; or directly or indirectly encourages the indiscriminate or unnecessary use of regulated health services. Persons who contravene this provision risk serious consequences; fines up to $5,000 for individuals and $10,000 for corporations, per offence. Further, contravening this section constitutes unsatisfactory professional conduct (see s.139B of the National Law). For serious contraventions, misleading and deceptive advertisement may constitute professional misconduct and put the health practitioner’s registration at risk. Given the serious penalties that may be imposed, you should seek legal advice as soon as possible if it has been alleged that you have contravened s.133 of the National Law. GET ADVICE FROM AN HEALTH LAWYER:  1800 659 114 Ahpra guidelines for advertising There has not been much judicial consideration of s.133 of the National Law, but the Australian Health Practitioner Regulation Agency has published  Guidelines for advertising a regulated health service ( Guidelines ) , which assist in clarifying the meaning of s.133. As well as this, health practitioner national boards may develop more specific guidelines for advertising. For example, the Medical Board has developed Guidelines for registered medical practitioners who perform cosmetic surgery and procedures . Such guidelines are not rules or law; they are meant to provide guidance to health practitioners and do not legally bind them. Nevertheless, health practitioners ought to pay attention to these guidelines, as a Court or Tribunal may consider them when considering advertising offences against s.133 of the National Law. What does Ahpra consider to be advertising of health services? According to the Guidelines, advertising includes all forms of verbal, printed and electronic communication that promotes and seeks to attract a person to a regulated health service provider and/or to attract a person to use the regulated health service. It extends to many different types of mediums such as television, radio, flyers, billboards, the internet and social media platforms designed to disseminate information. Importantly, anyone who advertises a regulated health service is considered an advertiser for the purposes of s.133 of the National Law. Ahpra guidelines for misleading use of professional titles While it may seem obvious that misusing a protected title is misleading and deceptive conduct, health professionals should be aware of other ways that they may mislead, even unintentionally, in describing their title or qualifications. For example, the Guidelines set out that the use of other words, such as ‘specialist’, may be misleading in circumstances where the health practitioner does not hold specialist registration. If you do not hold specialist registration, then you should not use the word specialist, but describe yourself as ‘having substantial experience in’, or other similar phrasing. Health practitioners should also be careful about using descriptive terms that may also be titles. For example, even if a medical practitioner has extensive experience in cancer treatment, they cannot call themselves an oncologist unless they are registered as an oncologist. Further, while ‘doctor’ is not a protected title, it does not mean that the use of ‘doctor’ might not be misleading. For example, the use of ‘Dr’ or ‘Doctor’ may be misleading if it suggests that a person is a medical practitioner when they are not. If a health practitioner (aside from a medical practitioner) wishes to call themselves ‘Doctor’ or ‘Dr’, they should make it is clear that they are not a medical practitioner. For example, Dr John Smith (Dentist), would be an appropriate way for a dentist to describe themselves. In our experience, often complaints about misleading advertising are made by other health practitioners, usually by competitors in a relevant health profession. This entails significant cost, considerable business distraction and anxiety for the subject of the notification. We therefore recommend that health practitioners give careful consideration to any guideline published by their National Board and seek advice if they hold any concerns. The costs of early advice are infinitesimal when compared to the costs of responding to a notification. Hall Payne Lawyers has significant experience in advising health practitioners in relation to advertising; being it websites or social media. GET ADVICE FROM AN HEALTH LAWYER:  1800 659 114 Other matters for consideration when advertising health services As outlined in s.133 of the National Law, health practitioners also need to take care in: offering gifts, discounts or other inducements; using testimonials; creating unreasonable expectations of beneficial treatment; or encouraging the indiscriminate or unnecessary use of regulated health services. Gifts Health practitioners ought to avoid offering gifts, discounts or inducements unless the advertisement explicitly states the terms and conditions of the gift, discount or inducement. Health practitioners should not advertise their service as being ‘free’ if the service is paid for in some other way, such as if it is funded by Medicare. Testimonials Health practitioners need to avoid testimonials. While patients may express their views about the service and may post reviews on online platforms, health practitioners may contravene s.133 of the National Law if they make use of those testimonials or gather testimonials on a website that they control. Unreasonable expectation of beneficial treatment Health practitioners must not overstate the effectiveness of a treatment or act in ways to create an unreasonable expectation of the results. Encouraging the indiscriminate or unnecessary use of health services Health practitioners must not encourage patients to use their health services when that is unnecessary; for example, by suggesting regular or periodic appointments when those are unnecessary for treatment. What does this mean for health professionals? Health practitioners can avoid running afoul of advertising obligations under the ACL or the National Law by ensuring that any claims they make can be substantiated, including in the way they describe themselves. If a health practitioner wishes to advertise their services and is concerned that their advertisement may contain statements that could be misleading or difficult to substantiate, they should reach out to a member of our Health Law team for legal advice. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2025/january/health-practitioner-advertising-obligations/ Sun, 19 January 2025 00:00:00 Many thousands of worker’s compensation claims are lodged in Queensland every year. Although many applications are accepted and benefits are paid, some claims are denied. While this can cause injured workers a significant amount of stress, it’s important to understand that a rejected workers’ compensation claim is not the end of the road. Under the Queensland statutory workers’ compensation scheme , there are options to have the decision to reject your claim reviewed. Reasons worker’s compensation claims are rejected Under the Workers’ Compensation and Rehabilitation Act 2003 (“the Act”), an insurer can deny a worker’s compensation claim for multiple reasons, including but not limited to the following. The claim for compensation was lodged out of time Generally, an injured worker has 6 months from the date of injury to lodge a claim with a workers’ compensation insurer. A failure to meet this time limit may result in the loss of a person’s entitlement to workers’ compensation. However, there are many exceptions, so it is important to seek legal advice if the insurer has rejected your claim on this basis. GET ADVICE FROM AN WORKER'S COMPENSATION LAWYER:  1800 659 114 The person’s employment was not a significant factor to the injury To be eligible for benefits under a workers’ compensation scheme, the injury must be related to a person’s work or have occurred during the course of employment. If the insurer does not believe the injury is work-related, for example, if the employer disputes the details of the incident, it could result in the rejection of an injured person’s application for compensation. There is insufficient evidence to substantiate the claim WorkCover Queensland, the workers’ compensation insurer established under the Act, generally has 20 business days to make a decision on your application. However, they may require more time to undertake further investigations or to obtain further information to assist in making a decision. If the insurer determines there is not enough evidence, such as medical reports or Workplace Health and Safety records, to determine the injury was work-related, they may refuse to accept a claim for compensation.  The injured person is not considered a “worker” under the Act ‘Worker’ is defined in the Act to mean an individual who “works under a contract; and in relation to the work, is an employee for the purposes of assessment for PAYG withholding”. If, after their investigations, the workers’ compensation insurer does not determine an injured person a ‘worker’ under the Act, their application for a claim will most likely be rejected. If the worker’s psychological injury was caused by "reasonable management action" In the case of psychological injuries (for example, bullying or harassment), an insurer may reject the application for compensation if the injury was due to “reasonable management action”. You can learn more about this in our previous blog, “Am I being bullied or is it reasonable management action?” Whether an insurer accepts or rejects your claim, they are obligated under the Act to provide you with written reasons for their decision. If the notice of a rejected claim for compensation does not include the reasons the application was denied, the injured worker has 20 days to request this information. If you do not agree with the insurers’ reasons for denying your application, one of our experienced workers’ compensation lawyers can provide advice and guide you through your next steps. GET ADVICE FROM AN WORKER'S COMPENSATION LAWYER:  1800 659 114 Injured worker’s timeframe to request a review If a worker’s compensation claim is rejected and the injured worker wishes to have that decision reviewed, they have three (3) months from the day of receipt of the insurer’s written decision to request that review. It is crucial that claimants begin the review process without delay, as they will require time to collate the relevant and supporting information and evidence. We do not recommend that you pursue a review of a worker’s compensation decision without advice and assistance from an experienced lawyer. Reviews are complex, and it is imperative that thorough and accurate information is submitted in a timely manner when requesting a review. GET ADVICE FROM AN WORKER'S COMPENSATION LAWYER:  1800 659 114 How is a worker’s compensation decision reviewed in Queensland? If you’ve received an adverse decision about your worker’s compensation claim, including a rejected claim, an application for review must be lodged with the Worker’s Compensation Regulator (“WCR”) . The WCR is an independent authority and separate to WorkCover and other workers’ compensation insurers. Review requests must be lodged, either online, by post or by email, using the Claim Review Form 542.3 . In addition to completing the form, written submissions stating your grounds for review and supporting documentation must be submitted as evidence. Supporting documents may include, for example, witness statements and further medical evidence. The WCR has 25 business days to decide on your request for review. Should the WCR require an extension of time, this is to be communicated to you in writing, including reasons for the possible delay. The reasons are to be reasonable and not cause unnecessary delay to the decision-making process. You are also entitled to a “Right of Appearance”. This means you can meet with the Review Officer in person or make representations over the phone or by another method. This process provides an opportunity to raise any matters from your written submissions that you intend to highlight and bring to the forefront and to the attention of the Review Officer. Reviewing a rejected application can often be a complicated and stressful process, so it is important to seek legal advice to help navigate through these difficult times. GET ADVICE FROM AN WORKER'S COMPENSATION LAWYER:  1800 659 114 Decisions the Worker’s Compensation Regulator can make There are three primary outcomes the WCR can make. WCR can determine that the original decision of WorkCover be dismissed and your worker’s compensation claim proceed. WCR can uphold the original decision of WorkCover, meaning your claim is denied. WCR can make a variation to the original decision of WorkCover. Can I appeal the WCR’s determination to uphold WorkCover’s original decision? If the WCR confirms the insurer’s decision to reject your application, you have a further appeal option. You can lodge an application with the Queensland Industrial Relations Commission ( “the QIRC” ). An appeal is to be lodged within 20 business of receiving the WCR decision. An appeal to the QIRC is complex and costly. It is vital that you seek legal assistance if you choose to appeal a decision of the WCR. Get help from a worker’s compensation lawyer Although a rejected worker’s compensation claim may prove to be challenging and not without its frustrations, it is important not to lose hope!  With avenues available to have a decision reviewed or, ultimately, appealed in the QIRC, there are opportunities to protect your worker’s compensation rights and entitlements. It is important to take proactive steps to protect these rights, including seeking legal advice for guidance and general advice early. Speaking with a practitioner in our excellent team of personal compensation lawyers gives you the best chance to receive the compensation you deserve and are entitled to. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Further reading: Worker’s Compensation Claims Queensland Your guide to worker’s compensation claims in Queensland Can I change jobs when on Workcover in Queensland? Workers’ compensation journey claims when travelling to and from work I’ve suffered a psychological injury at work. What do I do? https://www.hallpayne.com.au/blog/rss/blog/2025/january/rejected-workers-comp-qld/ Sun, 12 January 2025 00:00:00 When a person dies, and they had a valid Will , their executor will apply for a Grant of Probate to administer the estate, including distributing the assets of the Will-maker in accordance with the Will. There can only ever be one original Will (and there may be several copies of that document). The original Will is one document required for a Grant of Probate in Queensland (and most other states and territories of Australia). So, what happens if that original Will is lost or missing? What is a Will? A Will is a legal document that specifies your wishes for your estate after you die. A Will contains who you would like your estate (all your assets) to go to (that is, who your beneficiaries will be) and who you have chosen to carry out your wishes (your executor) and administer the distribution of your estate after you die. The original Will is the actual document that the Will-maker and the witnesses have signed. In most cases, an original Will is carefully stapled and bound. Any evidence that this binding has been tampered with can raise questions about the validity of the document. An original Will is usually required for a Grant of Probate In Queensland, a Grant of Probate is the official recognition that a Will is legally valid. A Grant of Probate is a Supreme Court of Queensland document recognising the Will as being the last valid Will of the deceased and is the authority for the executor to administer the estate. Executors and administrators of deceased estates must seek a Grant of Probate before they can deal with the estate’s assets.   To apply for a Grant of Probate certain documents must be submitted with the application. This includes the original Will. If the original Will cannot be found, then there is a different procedure which must be followed to obtain a Grant of Probate. Procedure where an original Will cannot be found Where an original Will cannot be found, an application must be made to the Supreme Court of Queensland, which is heard by a judge. Five matters must be established, including: that there actually was a Will; that it revoked any previous Wills; overcoming the presumption that the Will was destroyed with an intention to revoke it; evidence of the terms of the Will; and evidence of due execution of the Will. For due execution of the Will in Queensland, it must be: made by someone over the age of 18 years; made by someone who has legal capacity (for example, a person diagnosed with advanced dementia cannot write a valid Will); be in writing; signed and dated by the testator in the presence of at least two witnesses (who are over the age of 18 years). The two witnesses must sign the Will in the testator’s (the Will-maker’s) presence and the presence of each other, and they cannot benefit from the Will or know someone who will benefit from the Will. Making proper and reasonable enquiries if an original Will is lost or missing Affidavit material that is filed with the application for a Grant of Probate should indicate that ‘proper and reasonable inquiries’ have been made to locate the missing original Will. Applicants (for example, the executor) will often hire a law firm to assist with these inquiries. Reasonable and proper inquiries may include, for example: conducting a thorough search of the deceased’s home; contacting family members and/or beneficiaries to ask if they know of the original Will’s whereabouts; contacting the lawyer who prepared the Will, the Public Trustee, and the Queensland Law Society; contacting any financial advisors, accountants, banks, and solicitors of the deceased to check if the original Will is in their possession; placing an advertisement in the Queensland Law Reporter for the lost Will, together with publishing notices in relevant newspapers. Case review for missing original Will: Lemon v Lemon In Lemon v Lemon , the applicant was seeking a Grant of Probate where the original Will was missing. Mrs. Lemon, the daughter of the deceased, applied for probate using a photocopy of the Will. This case provides a good illustration of how the five matters that must be established in the procedure to follow if an original Will is missing (outlined earlier in this blog): The solicitor who prepared the Will was able to provide evidence that there actually was a Will. While she did not have direct memory of it, she recognised her signature on the photocopy and that of her secretary as witnesses. She also swore that, according to her records, the original document was given to the deceased. The photocopy showed on its face that there was a clause revoking all previous Wills. There was evidence that the deceased’s husband had a history of being a ‘minimalist in terms of possessions.’ He was known to have thrown out, for example, family photographs that were of considerable sentimental value. Following a stroke, Mrs Lemon said that her father’s ‘… mental health deteriorated and his compulsion to throw things out appeared… to increase. ’ There was no evidence that the deceased made another Will or ever gave the original Will to somebody else. Given the evidence of her husband’s compulsion and mental capacity, this supported the inference that he had thrown out her Will without her consent or instruction. The presumption that the Will was destroyed with an intention to revoke it was therefore rebutted. The terms of the Will were evidenced in the photocopy of the Will. There was evidence from the solicitor that an original Will was executed by the deceased, and was properly witnessed. There was no challenge to testamentary capacity or the legitimacy of the photocopy. The photocopy of the Will was, therefore, admitted to probate. How can I prevent my original Will from being lost or going missing? If your solicitor prepares your Will, they will usually have a safe custody facility where they can store the original for you at no charge. You can then provide copies of the Will to your executor(s) and beneficiaries if you wish. If you pass away, your executors can contact the law firm and organise for the original Will to be sent to them. If you hold your original Will, you should store it somewhere safe that is fireproof and waterproof and inform your executors where it is being stored. Get help from a Wills and estate planning lawyer The process of applying for a Grant of Probate where the Will is missing or lost is more complicated than an application accompanied by the original Will. However, it is still possible. If you require any assistance with an Application for a Grant of Probate of a missing Will, please do not hesitate to contact one of Wills and Estates lawyers . Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: Undue influence and coercive behaviour towards a Will-maker Can I make handwritten changes to my Will? Contesting a Will - who can challenge my Will? https://www.hallpayne.com.au/blog/rss/blog/2025/january/missing-original-wills/ Sun, 05 January 2025 00:00:00 Being arrested and charged with a criminal offence in NSW creates a lot of stress and uncertainty. If you are in this position, you will no doubt have many questions, which might include: Will I get bail? Will there be conditions imposed on my bail? What can I do if bail is refused? Under the Bail Act 2013 (NSW) (“the Act”), the answer to these questions depends on whether you are charged with a show cause offence (offences of a more serious nature) and pose an unacceptable risk to the community if released from custody. Is your criminal offence a show cause offence? In NSW, more serious offences, such as serious indictable offences (e.g. murder) or serious domestic violence offences, are show cause offences. If you are charged with a show cause offence, bail will be refused unless you can “show cause” why detention is not justified. The Bail Act does not set out what is required to “ show cause. ” However, section 32 notes that any assessment must be made “ on the balance of probabilities ”, and Courts have noted that relevant factors include: whether it is the person's first time in custody; any medical reasons; the potential sentence; the need to care for dependents; and the prospects of delay in reaching a hearing of the matter. What is the unacceptable risk test when considering bail ? If the offence you are charged with is a show cause offence and you are able to show cause why detention is not justified, the “unacceptable risk” test will then apply. For offences that are not show cause offences, the “unacceptable risk” test is applied in the first instance. Section 19 of the Bail Act provides that it is an unacceptable risk if the accused will : fail to appear at any proceedings for the offence, or commit a serious offence, or endanger the safety of victims, individuals or the community, or interfere with witnesses or evidence. The Act sets out the matters that the Court is required to consider when determining whether someone presents an “unacceptable risk”. These include, for example: the seriousness of the offence; the accused person’s history of offending; and non-compliance with Court orders; and the strength of the prosecution’s case. There are several matters the Courts must consider, and a full list can be viewed under Section 18 of the Act . No one factor is determinative, and the Court is required to consider the full list (and only the list) contained in the Act. Bail conditions If the Court concludes that the person presents no unacceptable risk, then the Court must release them. However, the Court is still required to “assess any bail concerns”. A “bail concern” is a concern that a person will: fail to appear at any proceedings for the offence; or commit a serious offence; or endanger the safety of victims, individuals or the community; or interfere with witnesses or evidence. The Court is required to refuse bail if satisfied there is an unacceptable risk that any of the above will occur. If the Court is not fully satisfied that there is an unacceptable risk, it will next consider if there is a “ concern” that any of the above will occur. It is clearly a lower requirement to be concerned rather than satisfied there is an unacceptable risk . As a result, if there is a “ bail concern ”, the Courts must still provide bail, however they might make that bail subject to “bail conditions”. The possible scope of these bail conditions is set out in Part 3, Division 3 of the Act (sections 23-30A). Conditions can be imposed which regulate, among other things: conduct (e.g., a person cannot do certain things); security (e.g., a person has to pay money in the form of a bond); and electric monitoring (e.g., a person is required to wear an ankle monitor). What happens if bail is refused If bail is refused, typically, you will be held in custody until a judgment is reached in the substantive matter. That is, unless your bail application is reheard in the same Court or the refusal to give you bail is overturned on appeal in an appellate Court. The Act prevents a Court from re-hearing a bail application unless “there are grounds for a further… application”. Those grounds are that: the person was not legally represented when the previous application was dealt with, and the person now has legal representation; or material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application; or circumstances relevant to the grant of bail have changed since the previous application was made; or the person is a child and the previous application was made on a first appearance for the offence. If none of these grounds apply to your scenario, you are prevented from appealing your bail application in the same Court. However, there may still be scope to appeal a decision in a higher Court if the Court that made the original decision made an error in law. It’s important to note that searching for an “error in law” does not mean re-hearing the application. It only means examining the original decision for an error. This means that, in effect, the appellate Court will not simply put themselves in the shoes of the decision-maker. Rather, it will only examine their decision to see if it was legally incorrect. Accordingly, such an appeal is inherently limited. Get help from a criminal lawyer If you are charged with an offence, you should contact one of our criminal law team members to obtain advice, including in relation to being released on bail or appealing a rejected bail application. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/december/bail-nsw/ Sun, 29 December 2024 00:00:00 When you’re on worker’s compensation in NSW , you will need to undergo an independent medical examination (IME) from time to time. This may be arranged by either the insurer and/or the solicitor acting on your behalf. The purpose of this blog is to help you understand what an IME is. What is an independent medical examination? An IME is an examination conducted by a State Insurance Regulatory Authority ( SIRA ) approved independent medical examiner, who is a specialist with qualifications relevant to your workplace injury. For example, this could be a neurosurgeon, psychiatrist, an ears, nose and throat specialist. An IME may be required to provide an independent medical opinion regarding: the diagnosis of your workplace injury; causation of your workplace injury; your capacity to work your need for reasonably necessary medical treatment; and what your level of whole person impairment is arising from the injuries you sustained at work. It is very important to understand that an independent medical examiner does not replace your nominating treating doctor regarding treatment of the injuries you sustained in your workplace accident. As a result, they are not permitted to provide you with medical treatment when you see them for your worker’s compensation claim. They are also not allowed to offer to treat you as a patient of theirs. Upon seeing the independent medical examiner, they will provide the insurer and/or your legal representative with a medico-legal report which will set out their medical opinions regarding your workplace injury. When will I need to attend an independent medical examination? When you get injured at work, you will be required to attend an IME from time to time for both the insurer and/or your legal representative of your worker’s compensation claim. You are required to attend an IME: When the insurer is determining whether it will formally accept or decline liability for your worker's compensation claim. You can read more in our earlier blogs: How to claim worker's compensation in NSW Help! My NSW worker’s compensation claim has been denied When the insurer is determining whether it will approve a request for reasonably necessary medical treatment expenses (such as surgery). You can read more in our earlier blog: Worker’s compensation claims NSW – your entitlement to medical and other expenses When the insurer would like to obtain an update regarding your recovery to work and/or your capacity to work. When you have instructed your legal representative to challenge an insurer’s dispute notice (section 78 notice) and/or work capacity decision. When you have instructed your legal representative to investigate and lodge a permanent impairment claim with the insurer. You can read more in our earlier blog: Worker’s compensation NSW – lump sum claims for permanent impairment Do I need to attend an independent medical examination? In short, the answer is YES. If you do not attend a scheduled IME, the insurer can take the necessary steps to stop your weekly compensation payments . It can also cause unnecessary delays in your matter. If you fail to attend an IME for your legal representative, you may be liable to pay a non-attendance fee. GET ADVICE FROM AN WORKER'S COMPENSATION LAWYER:  1800 659 114 What are my rights when asked to attend an independent medical examination? Under Part 7 of the Workers Compensation Guidelines, the insurer is required to do the following when it comes to organising and/or notifying you of your IME appointment. The insurer is required to notify you in writing of the IME appointment at least 10 working days prior to the examination taking place. Additional notice should be considered for regional or rural workers. If a shorter time is required due to unavoidable or exceptional circumstances (e.g. an urgent request for treatment), this reduced timeframe must be agreed upon by all parties. In the written notice, the insurer is required to provide: specific reasons for the examination; date, time, and location of the appointment; name, specialty and qualifications of the IME; contact details of the IME’s offices and appropriate travel directions; likely duration of the IME examination; and what to take (x-rays, reports of investigations/tests, comfortable clothing to enable an appropriate examination to be conducted). The insurer must allow you to be accompanied by a person other than your legal representative. This person, however, cannot participate in the IME and may be required to leave the IME if requested. The insurer must notify you when it is the independent medical examiner’s routine practice to record the IME on audio or video and that you must either consent or decline this before the IME takes place. The insurer is required to pay for any reasonable costs in attending the IME appointment (including but not limited to wages, travel, and accommodation). This may include pre-payment of travel and accommodation expenses. If you are unable to travel unescorted, this may include expenses for someone to accompany you. The insurer is required to meet any special requirements relating to gender, language, or culture. If the insurer does not comply with all of the above, you are entitled to lodge a complaint with the Independent Review Office on 139 476 . Who will pay for the independent medical examination? If the insurer requires you to attend an IME for the purposes of your worker’s compensation claim, it will pay for the cost of the medico-legal report. If your legal representative organises for you to attend an IME for the purposes of challenging the insurer’s dispute notice and/or investigating your permanent impairment claim, the cost of the medico-legal report is paid by the Independent Review Office IRO. In very rare instances, you may be required to pay for a medico-legal report upfront and be reimbursed by the insurer at a later date. It is very important to note that should this occur, the IME is only permitted to charge for the cost of their medico-legal report in accordance with the Workplace Injury Management and Workers Compensation (Medical Examinations and Reports Fees) Order 2024 (which is renewed each year). What will happen during the independent medical examination appointment? The independent medical examiner is required to review the letter of instruction and relevant information provided by the insurer and/or your legal representative. They are also required to obtain information from you and conduct a medical examination. At the IME medical appointment itself, the examiner may ask you to provide them with the following information: your past and present medical and work history; any treatment you have received, are receiving or are considering; what caused your injury; and how your injury affects you now. The examiner needs to understand the extent of your workplace injury or illness and how it is affecting your life. It is important that you cooperate as much as you can with requests for information. Be straightforward and clear; don’t worry if you forget anything during the interview. Just do the best you can. What happens once I have attended the independent medical examination? After you have attended the IME appointment, the independent medical examiner will provide their medico-legal report to the insurer and/or your legal representative. Upon receipt, the insurer will provide a copy of the medico-legal report to your nominating treating doctor. You (or your nominee, e.g. your lawyer) can request a copy of the medico-legal report, together with copies of the supporting documents that were provided to the examiner (if it is relevant to a decision made by the insurer to dispute liability for your worker's compensation claim and/or reduce your weekly compensation payments). What can I do if there are problems during the independent medical examination itself? If you are not happy with anything during the IME itself, you should communicate your concerns to the independent medical examiner immediately. If you are not able to resolve your concerns with the independent medical examiner, you should ask for the medical examination to stop so that you can speak to the insurer and/or your legal representative. If you wish to make a complaint about an independent medical examiner, you can contact any of the following: the referrer (i.e. the insurer and/or your legal representative) SIRA Customer Service Centre on 13 74 72 ; your Union; the Health Care Complaints Commission ; the NSW Medical Board; or the Australian Health Practitioner Regulation Agency . Get help from a worker’s compensation lawyer? If the insurer has arranged for you to attend an IME, you should seek legal advice to ensure that it has complied with its obligations and to discuss the potential impacts that may arise in respect of your worker's compensation claim. Similarly, if you have any questions regarding the IME process, you should contact your legal representative before your scheduled medical appointment to give yourself time to obtain answers to any queries you may have. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/december/ime-nsw/ Fri, 20 December 2024 00:00:00 A genuine redundancy occurs when an employee’s employment is terminated at the employer’s initiative because the employer no longer requires that job to be done by anyone. The exception to this is where the employment ends due to the “ordinary and customary turnover of labour”, which we discuss in more detail below. A redundancy can still be a genuine redundancy even if, for example, some or all duties performed by the employee still need to be performed but are instead “reallocated” or “absorbed” by one or more other employees or contractors as part of a restructure. Unfair dismissal and other claims if your redundancy is not “genuine” If you suspect your redundancy is not genuine, you may be eligible to make an unfair dismissal claim or other application in the Fair Work Commission. Certain eligibility criteria must be met, and strict time limits apply. If one of the reasons for the redundancy was an unlawful or prohibited reason, you may be eligible to make an application to the Fair Work Commission alleging breach of the general protections provisions in the Fair Work Act (again, strict time limits may apply); for example, your employer made your role redundant because you made a complaint or enquiry about your employment or because of your race, sex, gender, pregnancy, disability or other protected attribute. Am I entitled to redundancy pay? In the case of a genuine redundancy under Fair Work Act , an employee is entitled to receive: notice (or payment in lieu of notice); and redundancy pay – a lump sum payment. How much is redundancy pay? Redundancy pay is calculated based on the employee’s period of continuous service with the employer. In most cases, continuous service does not include periods of service as a casual employee. The tables below set out the notice period requirements for a genuine redundancy and the redundancy pay applicable dependent on the length of service. Notice period requirements due to genuine redundancy Continuous Service Notice Not more than 1 year 1 week More than 1 year but not more than 3 years 2 weeks More than 3 years but not more than 5 years 3 weeks More than 5 years 4 weeks If the employee is over 45 years old and has completed at least 2 years of continuous service with the employer, they are entitled to an additional 1 week of notice.   Redundancy pay Continuous Service Redundancy Payment At least 1 year but less than 2 years 4 weeks At least 2 years but less than 3 years 6 weeks At least 3 years but less than 4 years 7 weeks At least 4 years but less than 5 years 8 weeks At least 5 years but less than 6 years 10 weeks At least 6 years but less than 7 years 11 weeks At least 7 years but less than 8 years 13 weeks At least 8 years but less than 9 years 14 weeks At least 9 years but less than 10 years 16 weeks At least 10 years 12 weeks   Notably, an employee being made redundant will be entitled to payment of any accrued annual leave, and long service leave may also be applicable. Am I entitled to more than the Fair Work Act redundancy entitlements? It is important to check and understand the terms of your employment, which may be contained in an employment contract or letter of offer, modern award, or enterprise agreement . This is because you may have a more beneficial notice or redundancy entitlement than the minimum entitlements contained in the Fair Work Act . For example, your employment contract may provide for a longer notice period or more valuable redundancy pay. It is also not uncommon for enterprise agreements to have more favourable redundancy entitlements. Can my redundancy pay be reduced by my employer? An employer can apply to the Fair Work Commission (“FWC) to vary an employee’s redundancy pay under the Fair Work Act where the employer: obtains other acceptable employment for the employee; or cannot pay the amount of the employee’s entitlement. The FWC must make a determination according to the circumstances of each individual case. It may order the redundancy pay to be reduced to a specific amount or, in some cases, not be paid at all. It’s important to note that only the FWC can vary an employee’s redundancy pay. The employer cannot vary the amount without an order from the FWC. If your employer is attempting to reduce your redundancy pay, you should seek legal advice from an experienced employment lawyer. GET ADVICE FROM AN EMPLOYMENT LAWYER:  1800 659 114 You can read more about this in our earlier blog, “Can my redundancy payment be reduced by my employer?” Who does not get redundancy pay? The entitlement to redundancy pay under the Fair Work Act does not apply to: employees with less than 12 months continuous service; employees of small business employers. Other rights and entitlements when being made redundant Employers must consult with employees All modern awards and enterprise agreements require employers to consult with employees about major changes in the workplace, including changes to hours of work and redundancies. Failure to comply with consultation obligations may mean that an employer has contravened the applicable award or enterprise agreement. Such a contravention would enable the employee, or the employee’s union on the employee’s behalf, to make an application to a court for orders in relation to the contravention, including that a penalty be paid by the employer. It may also render any redundancy process an unfair dismissal. Get help from an employment lawyer Your notice and redundancy entitlement may be different from the minimum entitlements set out in the Fair Work Act . An application by an employer to reduce redundancy pay can also be complex to navigate and requires a determination by the Fair Work Commission. If you need help understanding what you are entitled to, or if you think your redundancy was not genuine, you should seek advice from one of our employment lawyers. We can provide you with expert advice on your rights and entitlements. Strict time limits can apply to certain claims, so it is important to act quickly. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/december/redundancy-entitlements/ Sat, 14 December 2024 00:00:00 An accountancy firm and a principal advisor from the firm have been fined almost $70,000 for contraventions of the Fair Work Act 2009 (Cth) ( FW Act ).  The firm was the accountant for a number of entities being investigated by the Fair Work Ombudsman ( the FWO ) for failure to keep employee records in contravention of the Act.  The firm and its principal advisor were fined for failure to comply with written “notices to produce” served upon them by the FWO, which was found to have constituted “involvement in a contravention”. The case of Fair Work Ombudsman v J.D. Chapel Nominees Pty Ltd (in liq) [2024] FedCFamC2G 85 ( FWO v JD ) provides a timely reminder that accountants, HR employees and other professionals can be held personally liable for certain breaches of the FW Act by their clients. In this case, the FWO sought penalties against persons variously involved in the management of a group of eight related entities for their roles in various FW Act breaches. Case against the employers The case concerned the failure of a group of eight hospitality businesses ( La La Group ) to make and/or keep employee records in breach of the FW Act (s 535(1)). The La La Group did not make and/or keep employee records setting out the hours worked by casual or irregular part-time employees or the loadings, allowances and penalty rates that employees were entitled to be paid.   They also failed to comply with several notices to produce in breach of the FW Act (s 712(3)). Ultimately, no penalties were sought against the La La Group entities because they entered liquidation, and so the FWO pursued others involved in the contraventions. The part-owner and director of six of the La La Group entities, Mr Taiaroa, and the General Manager of the same six entities, Mr Sanger, both admitted they were “involved” in the contraventions within the meaning of the Act. What does “involvement” mean under the Fair Work Act? Section 550 of the FW Act A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision. A person is involved in a contravention of a civil remedy provision if, and only if, the person: has aided, abetted, counselled or procured the contravention; or has induced the contravention, whether by threats or promises or otherwise; or has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or has conspired with others to effect the contravention Case against the employers’ accountants The case also considered penalties for La La Group’s contracted accounting provider, Nicholas Accounting Management Services Pty Ltd ( NAMS ) and NAMS’ principal, Mr Nicolaou. This part of the proceedings concerned the roles NAMS and the individual principal (Nicolaou) played in the various entities and failing to comply with several notices to produce. NAMS and Mr Nicolaou both admitted they were “involved” (see definition above) in contraventions within the meaning of the FW Act. The Federal Court decision Whilst the Court found “grounds for suspicion” of underpayment, the FWO was unable to ascertain the extent of the underpayments at the eight entities known as the La La entities and was unable to take appropriate enforcement action due to the absence of employee records and other evidence. Penalties for the Director and General Manager of La La Group Her Honour found in relation to the contraventions by Mr Taiaroa (the Director of the La La Group) as follows: His record-keeping failures were deliberate because he was aware that the required records were not kept, and he was responsible for ensuring that they were kept. Whilst he admitted to his contraventions, his “ expression of regret was minimalistic... He described the record-keeping as insufficient, when it was grossly inadequate… Mr Taiaroa did not apologise to the people most affected by the contraventions [the employees]… All in all, Mr Taiaroa’s attempt at contrition does not appear to be genuine, but reflects a desire to minimise the penalty he will receive .” The appropriate total penalty was $41,368 for 12 contraventions. In relation to Mr Sanger (the General Manager), her Honour found: It was his job to ensure compliance with workplace laws. The General Manager knew of the system by which the required records were not made or kept.  His breaches were deliberate. His apology was “ formulaic, and designed to minimise the penalty he might receive rather than a genuine expression of remorse . ” The appropriate total penalty was $26,893 for 12 contraventions. Penalties for the accounting firm and principal, Mr Nicolaou Her Honour found, in determining the award of penalties against NAMS and Mr Nicolaou: NAMS had ample authority to comply with the notices to produce, and its reasons for noncompliance were rejected. NAMS conduct was deliberate and involved senior management. NAMS failure to comply with the notices to produce undermined the FWO's ability to investigate contraventions of the FW Act leading to a loss for the public of the extra resources required to establish those contraventions. These included the site visit involving multiple FWO and Australian Taxation Office staff, which was required to establish the contraventions. Neither NAMS nor Mr Nicolaou expressed any contrition or took corrective action by providing the requested documents at a later date. NAMS is still in business, necessitating a “ significant measure of specific deterrence ”. NAMS " is an accounting practice, and should have had the basic professional competence to comply with legal requirements of the FWO ". Mr Nicolaou’s contraventions were not part of a single course of conduct. Whilst NAMS and Mr Nicolaou cooperated with the FWO by making admissions a few days before the liability hearing, those admissions were made late in the piece and when significant effort had already gone into trial preparation. This meant that they were not entitled to the maximum discount for admissions. Her Honour ordered: NAMS to pay a $34,020 penalty for its single contravention of failing to comply with a notice to produce. Mr Nicolaou to pay a total penalty of $35,154 for his nine breaches of the FW Act in advising the La La entities and failing to produce the requested documents pursuant to each of the nine notices to produce. Total penalties for NAMS and the principal: $69,174 . Providers of professional services to employers also have Fair Work Act obligations This case demonstrates the willingness of the FWO to pursue those who facilitate and/or attempt to conceal the misconduct of employers through their provision of professional services. In doing so, it serves as a stark reminder to businesses, particularly those in professional services like accounting, of the importance of meticulous record-keeping and adherence to regulatory requirements. Failure to do so can result in not only reputational damage but significant financial penalties. Under the FW Act (s 550), someone who is “involved” in a contravention is subject to the same penalties as if they had contravened the provision themselves. Understanding the concept of “involvement” is thus critical for such persons. The case is also a reminder to employee applicants who have been underpaid . Where an employee has a claim for a breach of the FW Act by their employer, further penalties can be sought against all companies and individuals involved in the contraventions. The Court also has the power to order that those penalties be paid to an applicant employee (see s.546(3) of the FW Act ). Get help from an employment lawyer At Hall Payne, we have an award-winning team of employment lawyers. If your employer hasn’t complied with the FW Act or employee record-keeping requirements, you should seek advice and assistance early. The sooner you act in relation to a workplace dispute, the better the chances are of a successful resolution. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/december/fines-for-employee-record-keeping-breaches/ Sun, 08 December 2024 00:00:00 Employers know that there are risks involved when they commence a workplace investigation and disciplinary process . They know that if they don’t do it right, they open themselves to the risk of ending up in a Court or Tribunal, which may overturn their decision, award compensation and have serious implications for their reputation. If an employee wants to shortcut the disciplinary process, or they are having a tough time at work and want to look at negotiating an exit, they can consider making a ‘without prejudice’ offer to settle the dispute by offering to resign in return for a settlement payout. What does ‘without prejudice’ mean? At law, the ‘without prejudice’ privilege generally prevents statements that are made in a genuine attempt to settle a dispute from being used as evidence should the matter proceed to a Court or Tribunal. The protection though does not automatically apply to all communications (conversations, emails etc). During a workplace disciplinary process, for a ‘without prejudice’ communication to occur and for the above protections to apply, it must be genuinely aimed at settlement. Further, although settlement communications that are not expressly labelled "without prejudice" can still be protected, it is generally advisable that: any written communication making an offer be labelled ‘without prejudice’; and if a verbal communication, the parties agree that the communication is without prejudice before any settlement offer is made. Make your employer an offer to settle your employment dispute It may sound bizarre, but employees have every right to make an offer to their employer to ‘settle’ a dispute., In the case of a workplace investigation, employers are not conducting a criminal investigation and, therefore, it is just a civil dispute between two parties. Importantly, an employee should not simply make their employer an offer at any point in any way they choose. As an employee, making an offer in the wrong way can have devastating consequences. At a high level, for an employee to get the offer and its process right, there are three key considerations. 1. The facts that led to the dispute between employer and employee First, it is important to consider the allegations that are being made against an employee in their overall context. The more serious the allegations, the harder it may be to successfully negotiate a settlement agreement. Any previous history of performance or misconduct issues may also be relevant. The quality of the employee’s relationships with co-workers and management prior to and at the time of the dispute should also be considered. Basically, an employee should be trying to ascertain whether management still wants them there or not, independent of how fair it is.   Lastly, an employee’s place of work may also make a difference. The employer’s legal structure, size, financial position and even history in handling workplace investigations (for example) can assist in determining whether a settlement payout is a viable option for that employer. 2. The timing of an offer to settle the dispute As an employee, making an offer to exit the company for a settlement amount should be made at the opportune time. Every situation is different. The offer could most effectively be made in writing, over the phone or in a disciplinary meeting.   Sometimes, the opportune timing can be created or bolstered by pulling other levers that an employee has available to them which can add pressure to an employer to no longer want to have to deal with the employee. For example, if the employer has already made procedural errors in the disciplinary process, these can be pointed out at an appropriate time in an appropriate way. 3. Making an offer to settle ‘without prejudice’ As stated above, for an employee to attract the protections intended by the ‘without prejudice’ principal, there are specific words that are advisable to say to their employer. Ideally, the employer will agree to the ‘without prejudice’ conversation so as to ensure there is no doubt that the privilege applies. Provided that the ‘without prejudice’ conversation has been properly engaged in, then the employee is free to discuss the situation and make an appropriate offer.   As you can see, there are a number of important considerations to take into account before making a ‘without prejudice’ offer to settle your employment dispute. It can be extremely stressful to make an offer yourself, and often it will be more effective to engage a lawyer to handle this for you. To maximise the success of any offer, we recommend you seek legal advice prior to making the offer. GET ADVICE FROM AN EMPLOYMENT LAWYER:  1800 659 114 What happens after I make a ‘without prejudice’ offer to settle my workplace dispute? Employer agrees with your ‘without prejudice’ offer If the employer agrees, a suitable Deed is usually drafted for the parties to sign in accordance with the terms agreed. If the employer drafts the Deed of Settlement, then the employee should have an employment lawyer consider its contents to make sure they are adequately protected. Otherwise, the employee can directly engage a lawyer to draft a Deed for them.   Employer does not agree with your ‘without prejudice’ offer In short, if the employer rejects your offer to settle the dispute, the disciplinary process continues. However, to be transparent, there is always the human factor when deciding to make a ‘without prejudice’ offer to settle your dispute, and there are always risks associated with this strategy. Although an employee’s ‘without prejudice’ offer cannot be used against them in a Court or Tribunal, and a competent employment lawyer can try to prevent the employee from being treated differently at work because of the offer, there is no way to ensure that the employer won’t view the employee as someone who doesn’t want to work for their business or someone who may be troublesome (in the employer’s view) in the future. So, if an employee wants to use the strategy of offering to settle the dispute, they need to make sure it is in the right circumstances at the right time and should always be made after seeking legal advice. Get help with employment issues If you’re experiencing any issues with your employment, including if you are engaged in a disciplinary process, you should contact your union or one of our  award-winning employment lawyers  for advice and assistance. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: Can I have a support person at a workplace disciplinary meeting? Benefits of contemporaneous notes in legal proceedings Bullying at work – your workplace rights Your employer instructs you to do something illegal. What are your rights as an employee? Sacked for serious misconduct - summary dismissals https://www.hallpayne.com.au/blog/rss/blog/2024/december/without-prejudice-offers-to-settle/ Sun, 01 December 2024 00:00:00 In November 2018, a distressing incident in regional South Australia exposed the dark reality of child neglect and systemic failures in child protection services. Government departments and other organisations and institutions have a duty to protect children under their care from harm. Where they fail to do so, and a child is exposed to abuse (physical, sexual, psychological), there are potentially options to pursue a personal injury claim against individuals and/or the relevant departments/organisations for compensation due to the harm suffered. In this tragic event, an 11-week-old baby was found dead on a fold-out couch in a home filled with rubbish, surrounded by squalid conditions . We explore the circumstances surrounding this horrific event, the findings of the coronial inquest, and the legal implications for child protection services in Australia. The coronial inquest into the death of an 11-week-old baby South Australian Coroner David Whittle conducted a 13-day inquest into the death of an 11-week-old baby in 2022, four years after the incident. The inquest revealed shocking details about the living conditions and circumstances leading to the infant's death: The baby was found dead on a fold-out couch, where he had been sleeping with four other people. Video footage presented at the inquest showed the house covered in rubbish, cat faeces, and soiled nappies. There was no food in the kitchen, and baby bottles were found to be mouldy. The baby's cot was full of the family's possessions, rendering it unusable. Most alarmingly, the inquest heard that the family had been the subject of 23 notifications to the South Australian Department for Child Protection (DCP) between 2015 and the baby's death in 2018. Systemic failures and missed opportunities by government department associated with abuse of the baby Coroner Whittle's findings highlighted significant failures within the child protection system: Failure to respond to early warnings: The first notification regarding the baby was made six months before his birth. This was a crucial missed opportunity for the DCP to intervene and improve the mother's preparedness for the child's arrival. Resource constraints: Multiple notifications were closed (on internal DCP systems) due to staffing shortages in the regional DCP office, leaving vulnerable children at risk. Lack of intervention: If the DCP had responded to a November 2018 notification shortly before his death), the baby would likely have been removed from the home and not sleeping in unsafe conditions on the couch. Unaddressed parenting concerns: The baby's mother, who was a teenager at the time, had consistently demonstrated struggles with parenting responsibilities. These concerns were frequently brought to the DCP's attention but not adequately addressed. Coroner's findings on cause of death Coroner Whittle stated that the cause of death was "not straightforward" . He found the cause to be "unascertained” but noted that the death occurred "in an unsafe sleeping environment, on a background of respiratory tract infection". This highlights the complex interplay of factors contributing to the tragic outcome. Coroner's recommendations aim for significant improvement in DCP management of child abuse and neglect cases In light of these findings, Coroner Whittle made several recommendations: Within the next 18 months, the DCP should no longer close notifications due to a lack of resources. Any closed cases must be approved by the DCP's chief executive in writing. Changes to the Children and Young People (Safety) Act 2017 (SA) to mandate that if a parent is convicted of failing to provide for a child, DCP must apply to the Youth Court seeking a parenting capacity assessment if they still have other children in their care. South Australian Child Protection Minister Katrine Hildyard acknowledged the "harrowing" nature of the findings and committed to examining the coroner’s recommendations closely. The Minister noted that significant changes have been made since 2018, with the percentage of notifications closed without action reducing from 55% to 18%. However, as the Minister stated, "There is absolutely more to do, and we will not shy away from the challenges ahead." Legal implications for government departments responsible for child welfare and safety The circumstances surrounding this case highlight the potential for legal action against child protection departments. In child abuse matters, departments can be sued on the basis that they failed to intervene to provide protection to children who are abused, allowing the abuse to continue where they should have intervened. The legal argument in such cases is had in relation to the: information that the department had, on several occasions, at the time of the abuse occurring, which left it totally unreasonable to not intervene; and the finding that had the department intervened, the abuse would not have occurred or would have been far less severe. In this case, the multiple notifications to the DCP, the department's failure to respond adequately, and the coroner's finding that intervention could have prevented the baby's death could lead to possible grounds for legal action. Get help from an abuse compensation lawyer Our Abuse Law team  recognises that discussing circumstances of abuse can be challenging for those affected. However, we believe it is crucial for those who are abuse victims and for those supporting those who are abuse victims to be aware of their legal rights and entitlements. At Hall Payne, we adopt a trauma-informed approach to guide you through this difficult journey. We listen attentively to your story, help you understand your options, and collaborate with your support network, including family, health professionals, and counsellors, to ensure you are supported throughout the process. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au More abuse compensation law articles Abuse compensation due to negligence of sporting associations Child abuse claims- can they be thrown out of court? Child sexual abuse and exploitation of power in Australian schools https://www.hallpayne.com.au/blog/rss/blog/2024/november/child-protection-failures/ Sat, 23 November 2024 00:00:00 Changes to the Migration Regulations, which came into effect on 16 October 2024, recognise that children who have been born in Australia to overseas nationals and who have spent a significant part of their childhood residing here have a strong connection to the Australian community. With these changes, minor visa applicants are now excluded from having to meet the migration health requirements if they meet certain criteria. What is the migration health assessment? The key requirements of the migration health assessment are that: the visa applicant must be free from a disease or condition which would result in a significant cost to the Australian community for them to access necessary health care or community services if they were granted a visa; and their health requirements must not prejudice access by an Australian citizen or permanent resident to health care or community services. This legislation has been the subject of inquiry and debate for decades. Many “common sense” recommendations have been made to government during that time, with very few of them being implemented. The Significant Cost Threshold (SCT) The Significant Cost Threshold is a threshold figure set to contain public expenditure on health care. As of 1 July 2024, the SCT sits at $86,000. You can read more about the SCT on the Department of Home Affairs – Immigration and Citizen website here . What’s changed for child visa applicants? The changes to the Migration Regulations (which came into effect on 16 October 2024) exclude child visa applicants from having to meet the health requirement if: they are under 18 years of age at visa lodgement date; were born in Australia; and they have been ordinarily resident in Australia for more than 50% of the time from their date of birth to the date of visa lodgement. What does that mean in practical terms Child visa applicants will still be required to undergo a health examination. If the assessment results in a “does not meet” outcome, the case officer will then be required to formally assess the applicant against these new requirements to apply this special consideration. That formal assessment process will happen automatically and will not need to be specifically requested. Evidence in the form of an Australian Birth Certificate will be required and residency records or movement records will be utilised by the case officer to establish periods of time spent onshore. These amendments also apply to undecided visa applications submitted prior to 16 October 2024 and to any refused visas currently undergoing merits review through the Australia Review Tribunal, which may be remitted at a later date. The reference to “child visa applicant” includes a minor applying for any temporary or permanent visa in Australia. What if my child has not been ordinarily resident in Australia for the required period? If your child does not satisfy these new requirements of having been born in Australia and been ordinarily resident for at least 50% of the period between their birth and the date of visa lodgement, then they may be considered for a health waiver if that is available based on the type of visa application that has been made. As has always been the case, if the visa is refused because of the child’s failure of the health requirement, then a merits review application through the Australian Review Tribunal can open up the pathway for Ministerial Intervention in compelling cases. Migration agent assistance If you’re having any difficulties in relation to your visa application, the health criteria, a specific health waiver request or any other visa and migration issues, our registered migration agent can assist. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: Who can help with your Australian visa application? Appeal options for visa applicants rejected due to failing the health requirement https://www.hallpayne.com.au/blog/rss/blog/2024/november/child-visa-application-changes/ Wed, 20 November 2024 00:00:00 In a significant development, the Queensland government has announced an investigation into Brisbane's Wolston Park mental health institution following an ABC report that uncovered historical allegations of sexual, psychological and physical abuse at the facility. Background on Wolston Park and allegations of abuse Wolston Park, which closed its doors in 2001, has long been shrouded in controversy. The institution has been tainted by widespread allegations of abuse dating back to the 1950s through the 1980s. Former patients have reported experiences of sexual abuse, physical beatings, chemical restraint, and "shock therapy." ABC investigation uncovers dark past As part of an ABC investigation , former patients broke their silence and spoke for the first time about the alleged abuse they endured at Wolston Park. In a rare move, medical files were made available, shedding light on the institution's troubling history. Government response and investigation In response to the ABC's reporting, Queensland Health Minister Shannon Fentiman has directed the Mental Health Commissioner to undertake a thorough investigation into the matter. The investigation will focus on: Health services provided at Wolston Park Hospital between the 1950s and 1990s; Experiences of both child and adult patients; Incidents involving those with lived or living experiences of the institution. Minister Fentiman expected the investigation to take approximately six months, after which the commissioner will report recommendations on necessary actions. Scope and implications of the investigation into historical abuse This investigation comes after years of advocacy by former patients seeking recognition and acknowledgment of the abuse they endured at Wolston Park. It raises important questions about historical institutional abuse and the responsibilities of mental health facilities. Key aspects of the investigation include: Comprehensive review : The investigation aims to capture experiences that may have been overlooked in previous inquiries, including those of children and adult patients not considered wards of the state. Public involvement : While the decision to make the report public will rest with the commissioner, public submissions are welcomed as part of the process. Access to records : The minister has requested that medical records be released to families and carers of patients from the period in question, addressing difficulties reported in accessing these documents. Potential for systemic change : The outcome of this investigation could have significant implications for how historical abuse cases are handled and how mental health institutions operate in Queensland. Professor Robert Bland has been appointed the Lead Reviewer. A final report on the findings of the investigation is expected 12 months after this appointment. You can read the full terms of reference for the Wolston Park Review here . Historical context and previous inquiries This is not the first attempt to address historical abuses in Queensland institutions. In 1998, the Forde Commission of Inquiry investigated abuse of children in state institutions but did not include children placed in adult mental health facilities. In 2017, the state Labor government issued a reconciliation plan making an ex gratia  payment by way of acknowledgement to nine women who were "wrongly placed" at the facility as children without mental illness. However, these efforts left out many child and adult patients who alleged abuse but were not considered wards of the state. Get help from an abuse lawyer Cases involving historical institutional abuse are often complex and emotionally challenging. If you or someone you know has been affected by abuse at Wolston Park or any other institution, it's important to seek both legal and personal support. At Hall Payne Lawyers, we have experience in handling sensitive cases related to institutional abuse. Our abuse compensation team can provide confidential advice on your legal options and guide you through the process with compassion and expertise. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Support services for survivors of abuse For those affected by this news or seeking support, the following services are available: Queensland Sexual Assault Helpline :  📞 1800 010 120 1800RESPECT :  📞 1800 737 732 National Sexual Abuse and Redress Support Service :  📞 1800 211 028 Bravehearts (support for child sexual abuse survivors) :  📞 1800 272 831 Centre Against Sexual Violence:   📞 07 3808 3299 https://www.hallpayne.com.au/blog/rss/blog/2024/november/wolston-park-historical-abuse/ Mon, 18 November 2024 00:00:00 In August 2024, we successfully appeared for a Tasmanian member of the United Worker’s Union (UWU) in relation to a criminal charge of ‘injure property’ contrary to s37(1) of the Police Offences Act 1935 . The police alleged that the member had damaged the door of a vehicle in the course of his employment as a security guard. After a hearing in the Tasmanian Magistrates Court, our client was found not guilty, and the charge was ultimately dismissed. Possible penalties for the charge of 'injure property' The charge has a maximum penalty of 12 months imprisonment and a fine of over $2,000.00. In this case, there was also the risk of a conviction being recorded and being ordered to pay for any repairs to the damaged vehicle if found guilty. Background to the criminal charge Our client was working as a security guard at a large public facility in Tasmania when he requested that a taxi driver move his vehicle, which was blocking the entrance to the facility. The taxi driver became upset and aggressive, and after making his anger with the security guard clear, he left the location. The taxi driver later made a statement to police, alleging our client had damaged his vehicle and seeking compensation for extensive repairs to the vehicle. Our client disputed the allegation and denied causing any damage to the vehicle. He elected to defend the charge and instructed Hall Payne to appear for him. A plea of not guilty was entered, and the matter was listed for hearing in the Tasmanian Magistrates Court. Magistrates Court procedure When a person is charged with a criminal offence, they will receive a summons, which requires them to attend court on a certain date and time. The court process proceeds differently depending on whether the person charged agrees or disagrees with the allegation. Because our client disagreed with the allegation, they entered a plea of not guilty, and the matter was set down for a hearing. At a hearing, the parties attend the court and have the opportunity to appear in front of a Magistrate (no jury) who will decide whether the allegation has been proven. The parties can call witnesses to provide testimony or provide documentary evidence to support their case. As this was a criminal case, the prosecutor was required to prove the allegation beyond a reasonable doubt. Both parties, the prosecution and the defence, will Initially, a witness called by the prosecution will answer questions from the prosecutor. This is known as direct examination or examination in chief. After the prosecutor has asked their witness questions, the defendant or their lawyers (if represented) can ask the witness questions. This is known as cross-examination. The cross-examination process gives a defendant the opportunity to ask questions which undermine the Prosecutions version of events and show there is evidence which could prove the Defendant is not guilty of the charge. Successful defence The prosecution called evidence from police officers who investigated the taxi driver’s allegations and the taxi driver who made the allegation, as well as a number of photos and videos they believed would prove the allegation against our client. In this matter, we were able to show that no police officer had ever actually looked at the vehicle at any point in the investigation and that the police officers who investigated the matter had not gathered all of the evidence that would have been available. Missing evidence included a number of witnesses who had not been spoken to and CCTV footage that had not been viewed or requested. We were also able to show, based on documents provided to the police, that the vehicle in question had likely suffered the damage prior to the interaction with our client. Client found not guilty The Magistrate ultimately found our client not guilty and dismissed the charge. Get help from a criminal lawyer This matter highlights the importance of getting legal advice and representation early if you are charged with a criminal offence. Good legal advice and representation can be the difference between being found guilty and receiving a significant penalty or walking free from court with no findings against you. Hall Payne Lawyers has experienced criminal lawyers who can assist with tailored advice in relation to legal issues you may have. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/november/criminal-defence-injury-property/ Sun, 17 November 2024 00:00:00 The law involving assistance animals is complex and it can be difficult to find the right information if you already have an assistance animal or if you have a disability and are looking to receive the support of an assistance animal. Discrimination against handlers and their assistance animals is also not uncommon due to the complexity and misunderstanding of legal entitlements and obligations. This article provides a general overview of discrimination laws in Queensland and on the federal law with regard to assistance animals. What is an assistance animal? Assistance animals are essentially trained animals that can assist you in your day-to-day life if you have a physical or psychosocial disability. They are specifically trained to alleviate the effects of a disability. They are medical aids that require specialist training and have accreditation and/or acknowledgement under law for the tasks they perform. Assistance animals are predominantly dogs, but it is not unheard of for a cat to attain accreditation as an assistance animal. There are various terms used for assistance animals, and some have specific classifications and requirements under Australian state law, such as guide dogs (also called seeing-eye dogs) or hearing dogs. A person who is assisted by an assistance animal is referred to as a “handler”. Other terms you may have come across are service dogs, mobility assistance dogs, medical alert dogs or psychiatric assistance dogs, but some of these are more common in other jurisdictions or are used informally to refer to the assistance animal’s specific role or task. For example, a dog that is trained to recognise or detect seizures in their epileptic handler may be informally referred to as a psychiatric alert dog or seizure dog while still being an assistance animal at law. It is important to note that an “emotional support animal” is very different to an assistance animal at law. “Emotional support animal” or “therapy animal” is an informal term that usually refers to an animal that can provide support through their companionship. They do not require specialist training and also do not have the same public access rights as assistance animals. Recognition of assistance animals under law Assistance animals are required to either be trained or accredited through an approved organisation to meet the standard under federal and/or state law if you wish to take them with you into public spaces where, ordinarily, animals are not permitted. Federal discrimination law and assistance animals The federal Disability Discrimination Act 1992 ( DDA ) (s 9(2)) defines an assistance animal. For the purposes of this Act, an assistance animal is a dog or other animal: accredited under a law of a state of territory that provides for the accreditation of animals trained to assist a person with a disability to alleviate the effect of the disability; or accredited by an animal training organisation prescribed by the regulations for the purposes of this paragraph; or trained: to assist a person with disability to alleviate the effect of the disability; and to meet standards of hygiene and behaviour that are appropriate for an animal in a public place. The definition of assistance animal at federal law is broad and you may find some organisations specifically identify that they train animals in compliance with either the federal or Queensland legislation (or another jurisdiction’s legislation). Case review – Virgin Australia fined for refusing access for an assistance dog In the case of  Mulligan v Virgin Australia Pty Ltd [2015] FCAFC 130 , a handler whose dog was trained by a dog training school but not an accredited organisation under the DDA was denied entry onto a Virgin Australia flight. Mr Mulligan’s dog, Willow, was trained to assist him with his cerebral palsy, vision and hearing impairments. Virgin Australia tried to rely on the civil aviation regulations that said animals could only be carried in their cabins via permission of the Civil Aviation Safety Authority (CASA). It was held that civil aviation regulations did not overrule the DDA. The court declared that Virgin’s conduct was unlawful discrimination and was ordered to pay $10,000.00 in compensation. Queensland discrimination law and assistance dogs The Queensland law, the Guide, Hearing and Assistance Dogs Act 2009 ( GHADA ) states: An approved assistance dog trainer may only certify an assistance dog for a person with a disability if the dog— is able to perform identifiable physical tasks and behaviours to assist the person in a way that reduces the person’s need for support; and has passed a public access test conducted by the following within 7 days before being certified— for an approved trainer—the trainer; for an approved training institution—an employee trainer of the institution; and is not a restricted breed as defined under the Local Government Act 1993; and is desexed and vaccinated; and has not been declared a dangerous dog under a local law. As you will see, registration under the GHADA is far narrower and the training of the animal and public access test must be facilitated by an approved training organisation. The Queensland legislation is also specifically directed at “assistance dogs” rather than “assistance animals”. The differences in law between state and federal levels do not create a hierarchy or mean you get differential treatment if your assistance animal is not accredited for the purposes of the GHADA. Case review – handler and guide dog refused entry to a hotel The degree for what is considered an assistance animal in Queensland was addressed in the case of Matthews v Woombye Pub Trading Pty Ltd [2022] QCAT 301 . This case was brought against the Woombye Pub under Queensland state legislation, the Anti-Discrimination Act 1991 (Qld) ( ADA ). The applicant Mr Matthews and his assistance dog Kooy2 were on several occasions denied entry to the Woombye Pub. Kooy2 was trained via self-assessment by Mr Matthews and was used to support his anxiety and his access to public and social engagements. Mr Matthews was either forced to leave Kooy2 outside or sit outside with his assistance dog and was even banned from entry for one month for attempting to enter the premises with Kooy2. At the Queensland Civil and Administrative Tribunal ( QCAT ) in defence of the claim, the Woombye Pub stated they were operating under the belief that it was a statutory requirement, under the GHADA, that Mr Matthews presented a handler identity card. Kooy2 had no registration via the GHADA, and no formal training from an accredited organisation and the evidence that Mr Matthews provided was a TransLink Assistance Animal Pass that he used for public transport. This was not considered valid documentation by the Woombye pub. The tribunal not only accepted that the TransLink Assistance Animal Pass was evidence of Kooy2 being an assistance animal, but they stated the following: The ADA defines “assistance dog” (in Schedule 1) as having the meaning given by the Guide, Hearing and Assistance Dogs Act 2009 (Qld) (the GHAD Act), Schedule 4. In the GHAD Act, “assistance dog” is defined to mean a dog trained to perform identifiable physical tasks and behaviours to assist a person with a disability to reduce the person’s need for support. I respectfully agree that the reference to the word “trained” in the definition does not require training by an “approved trainer” or “approved training institution”. The definition of “assistance dog” encompasses training to perform identifiable “physical tasks and behaviours” to assist a person with a disability to reduce the person’s need for support. Given that Mr Matthews’ need for support relates to his psychological (rather than physical) impairment, I consider that the “behaviours” Kooy2 was trained to perform need only involve obedience and companionship in order to assist in reducing Mr Matthews’ need for support. The tribunal held that the Woombye Pub was not entitled to refuse entry to Mr Matthews and Kooy2 on the basis that he could not produce a handler card under the GHADA, and Mr Matthews was awarded $8,000 in compensation. Can I take my dog anywhere in public? Under federal discrimination laws (the DDA), assistance animals are considered to be an extension of one’s disability and are protected from discrimination. There are also specific protections under the Queensland legislation (the ADA) that state that a person must not discriminate by refusing to rent accommodation to a person if they rely on the assistance of a guide, hearing or assistance dog and also cannot require them to keep the dog elsewhere or charge them extra for having the dog. Assistance animals are allowed to accompany their handlers anywhere in public, including restaurants, hospitals, schools, public transport, shopping centres and national flights. You should be prepared to provide some form of evidence to verify that your animal is an assistance animal. Under the DDA it is lawful for a person to request or require that you remain under control of your assistance animal, and it is also lawful for a person to request evidence from you that your animal is an assistance animal or that it is trained to meet standards of hygiene and behaviour that is appropriate for an animal in a public place. Under the GHADA, there are some limitations on where an assistance animal can access, for example: certain areas in health services such as in-patient wards, surgical areas and labour wards; ambulances; and food preparation areas. It is also not unlawful to discriminate against a person with an assistance animal if they reasonably suspect that the animal has an infectious disease or if it is reasonably necessary to protect public health or the health of other animals. Travelling on international flights with assistance animals Assistance dogs, in some instances, are allowed on international flights, but you need to follow the requirements of both your departing and entering countries, which have specific laws and customs regulations around travelling internationally with assistance animals. For international travel, many countries have a requirement that your assistance dog be accredited through an organisation that has their training approved by Assistance Dogs International. Help with discrimination involving an assistance animal Complaints of discrimination can be made to either the Australian Human Rights Commission or the Queensland Human Rights Commission. Choice of jurisdiction can be a complex matter and if you are interested in pursuing a complaint, it is recommended you get legal advice which is tailored to your individual scenario. Handlers of assistance dogs can be faced with discrimination in various types of situations, including accommodation, travel and general public access. If you are a handler of an assistance dog and believe you have been discriminated against and would like to know your rights and what types of complaints you can make, we recommend you speak with one of our discrimination lawyers. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/november/assistance-animals-and-the-law/ Sun, 10 November 2024 00:00:00 Healthcare can be a demanding profession, both physically and emotionally. Nurses are often required to engage in physically challenging and repetitive tasks such as lifting and moving patients and equipment. It is important for nurses in Queensland to understand their rights to workers’ compensation entitlements if injured in the workplace. The prevalence of lifting injuries among nurses Healthcare and social assistance rank among the six industries with the highest rates of workplace injuries, accounting for 19.1% of all serious claims in 2022-2023 , with 26,500 serious claims made across Australia. Of these claims, approximately 6,500 involved musculoskeletal injuries to the chest, abdomen, pelvis, and back with many of these due to lifting tasks performed by workers. Common nursing injuries caused by lifting and manual handling Nursing staff who engage in manual handling and lifting tasks are at a higher risk of suffering musculoskeletal injuries. This type of injury involves the muscles, bones, joints, and connective tissues in the body. Many such injuries will require medical treatment and/or time off work, which could lead to an entitlement to workers’ compensation. The most common forms of these injuries are: muscle sprains and strains; ligament or tendon strains and tears; herniated discs; tendinitis of the shoulder, elbows and wrists; carpal tunnel syndrome. The continuous physical strain placed on nurses means that these types of injuries can occur at any stage in their careers, either due to one incident or over time from repetitive strenuous activities. The following are characteristics of hazardous manual tasks: Repetitive or continuous force; Intense, sudden, or unexpected force; Frequent or repetitive movements; Extended periods of awkward posture; Exposure to vibrations or jolting. While many workplaces are now enforcing “No Lift Policies”, nurses are still often exposed to significant risks of physical injuries when faced with tasks or emergency situations requiring the manual handling of patients and equipment in their workplaces. As many of these injuries require extensive recovery time and medical care, it is crucial for nurses to be aware of their legal rights to a safe working environment and their right’s in accessing workers’ compensation in Queensland. What rights do nurses have to workers’ compensation in Queensland? In Queensland, all workers, including nurses and other healthcare professionals, who sustain injuries from lifting and manual handling in their workplace are entitled to claim workers’ compensation. The Queensland legislation aims to protect injured workers in the form of financial support and covering medical expenses regardless of who is at fault. If you are a nurse who has been injured as a result of lifting or manual handling at work, you may be entitled to the following compensation.   Weekly compensation for lost wages (weekly payments) If you are no longer able to work due to your work-related injury, you may be eligible for weekly compensation payments that replace part of your regular income. You can read more about these payments in our earlier blog, “Weekly payments if injured at work in Queensland” . Medical and rehabilitation expenses The costs of medical treatment, rehabilitation and necessary aids or equipment related to your lifting or manual handling injury may be covered under workers’ compensation. Return to work support Workers’ compensation laws in Queensland encourage return-to-work programs which can help you gradually transition back to your job once you have been cleared medically. Lump sum compensation for permanent impairment If your lifting injury results in permanent impairment, it is possible that you will be eligible for a lump-sum compensation payment. If you accept a lump sum amount from WorkCover, and your injury was assessed at less than 20% degree of permanent impairment, it’s important that you understand that you will no longer be able to pursue a common law claim against your employer for additional compensation (see below). It is highly recommended you speak to a lawyer prior to making a decision regarding your lump sum offer. GET ADVICE FROM A WORKERS' COMPENSATION LAWYER:  1800 659 114 Travel expenses Some reasonable travel costs related to your medical treatment may also be covered under workers’ compensation. Common law compensation A common law claim is in addition to the statutory workers’ compensation entitlements listed above. Injured workers who have an accepted workers’ compensation claim may also be able to bring a common law claim. Importantly, however, workers need to prove that the employer was negligent, contributing to their injury. Further, as indicated above, if you accept an offer for a lump sum payment (under the statutory scheme) and your injury has been assessed at less than 20% degree of permanent impairment, you will not be able to pursue a common law claim against your employer for that injury. It’s crucial that you seek legal advice prior to accepting any offer of a lump sum payment by WorkCover. GET ADVICE FROM A WORKERS' COMPENSATION LAWYER:  1800 659 114 What to do if you are injured when lifting/handling patients/equipment at work? If you experience a lifting injury as a nurse in Queensland, the following are crucial steps to follow in order to protect your workers’ compensation rights and entitlements. Report the injury to your employer Report your injury to your employer as soon as possible. Ensure you document the injury clearly and keep detailed records of interactions with your doctors, employers and WorkCover. Seek medical attention Visit your doctor and have your injury assessed. You should obtain a certificate from your doctor confirming the injury is work-related. This certificate is a crucial part of your claim. Notably, this is not a standard ‘sick leave’ certificate. It is a specific certificate relevant to workers’ compensation claims. Submit a workers’ compensation claim Lodge your workers’ compensation claim with WorkCover Queensland or your employer’s self-insurer. Keep up to date with your claim WorkCover or the self-insurer will review your claim, assess your eligibility, and provide you with an outcome. WorkCover (or the self-insurer) has 20 days to respond to your claim and they must respond in writing. If the claim is approved, you will receive compensation based on the severity of your injury and how your ability to work is impacted. What can I do if my workers’ compensation claim is rejected? If your Queensland workers’ compensation claim is rejected, you have options to have that decision reviewed. You have three months from the date of receiving an adverse decision, to request a review. If you intend to request a review, you must lodge an application with the Worker’s Compensation Regulator, an independent body separate to WorkCover. The Regulator has 25 business days (unless an extension is sought) to make a decision on your request for a review. There are three primary outcomes the Regulator can make. It can determine that the original decision of WorkCover be dismissed and your worker’s compensation claim proceed. It can uphold the original decision of WorkCover, meaning your claim is denied. It can make a variation to the original decision of WorkCover. Reviewing a rejected application can often be a complicated and stressful process, so it is important to seek legal advice to help navigating through these difficult times. You can read more detailed information about appealing an adverse decision related to your workers’ compensation claim in our earlier blog, “Rejected workers compensation claims in Queensland” . Get help from a workers’ compensation lawyer If your workers' compensation claim is approved and benefits like weekly payments and medical expenses commence, you may want to consider your option for pursuing common law damages. Legal advice is essential in relation to common law claims as the process is usually highly complex. If your workers’ compensation claim is denied or you’re dissatisfied with any other decision made by WorkCover (or the self-insurer), contact us to discuss your next steps. At Hall Payne Lawyers, we have significant experience and expertise with workers challenges within the health industry. We work closely with nurses and other health professionals in relation to a range of workplace related issues, including compensation claims. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/november/nursing-lifting-injuries/ Thu, 07 November 2024 00:00:00 In Queensland, WorkCover Queensland (or the relevant self-insurer) plays an instrumental role in providing financial support to injured workers through weekly payments to cover lost wages while they are unable to work or have limited working capacity due to their workplace injury. There are certain scenarios relevant to determining entitlement to Queensland worker’s compensation weekly payments. WorkCover Queensland is the primary insurer responsible for workers' compensation insurance in Queensland. This compensation includes coverage for medical expenses, rehabilitation, and weekly payments to support the injured worker during their recovery. There are eligibility requirements to be entitled to worker’s compensation. Eligibility for worker’s compensation weekly payments Employee or independent contractor? The most important question to consider regarding your entitlement to weekly payments is whether you are an employee or an independent contractor. To be eligible for weekly payments after a workplace injury, the worker must be an employee or a deemed worker under the scheme. The individual can be working full-time, part-time, or in a casual capacity. Occasionally, an employer may deliberately disguise an employment relationship as an independent contracting arrangement, often to avoid responsibility and entitlements. This practice is called sham contracting and is illegal. There are various tests used to determine whether a worker is an employee or an independent contractor for the purposes of a worker’s compensation claim. Please contact us for a detailed analysis of your specific circumstances as it is crucial to correctly identify the nature of the employment relationship in the unfortunate event of workplace injury. GET ADVICE FROM A WORKERS COMPENSATION LAWYER:  1800 659 114 If it is determined that you are ineligible for worker’s compensation, you may have other options like a TPD claim or Income protection claim . We can also assist you with this. Is it a work-related injury? For a workers’ compensation claim to be accepted, the injury or illness that you are suffering from and that is causing ongoing incapacity needs to arise out of or in the course of your employment, with employment being a significant contributing factor. To explain further, these injuries should have happened as a direct consequence of performing your duties either: while at work; when travelling to or from your home and place of employment ; or during a scheduled break. It is important to note that even when an employee is working from home, the employee is still entitled to workers’ compensation, provided the necessary causal link to employment is established. If the worker is injured in a motor vehicle accident while travelling to and from their place of employment and home, they are entitled to lodge a journey claim. The worker may also be entitled to other compensation under the MAIC-CTP scheme (the compensation scheme for people injured in a motor vehicle accident in Queensland ) if they are not at fault. These claims can be complicated, and it is important that you seek legal advice before proceeding with either a motor vehicle accident claim or worker’s compensation claim. GET ADVICE FROM A WORKERS COMPENSATION LAWYER:  1800 659 114 Lodging a WorkCover Queensland claim It is crucial to alert your employer about the injury as soon as possible. If there are specific mechanisms to report your incident or create an incident report, it is important to follow such processes and rules to ensure the incident is well documented. Make sure the details of the incident are documented accurately in your employer’s injury register or reporting system by providing additional information if needed. Consult and obtain medical treatment immediately. An employer may take you to their nominated doctor, however, please be aware that you are entitled to seek medical treatment from your preferred treatment provider. You will be issued a specific worker’s compensation medical certificate (called a work capacity certificate) with relevant information, such as the date of the incident, details of the nature and extent of your injury, your capacity to work, and any restrictions or recommended treatments. Once you have notified your employer and obtained your medical certificate, you can lodge a worker’s compensation claim online or by phone on 1300 362 128 . For more detailed information, you can read our earlier blog, “Your guide to worker’s compensation claims in Queensland.” Your entitlement to worker’s compensation weekly payments You will get paid worker’s compensation weekly payments if you are an employee under the scheme and sustained an injury during the course of your employment as noted above. Once you have lodged a worker’s compensation claim, if your claim is accepted, you will begin receiving payments. The payments are designed to compensate for lost wages while you are unable to work due to the injury. 85% of your normal weekly earnings are payable to you in the initial 6-month period following claim acceptance. These payments are reduced further as time progresses. How long will I be paid weekly payments? The duration of worker’s compensation weekly payments is entirely dependent on your recovery and your ability to return to work. This does not mean that payments will go on forever, and depending on your case-specific circumstances, WorkCover Queensland can cease weekly entitlements. Generally, your entitlements to weekly payments stop when you have returned to work, and your injuries have been assessed as stable and stationary. During this period of compensation, you are required to cooperate with WorkCover Queensland, participate in rehabilitation programs, participate in host employment, or in a gradual return-to-work plan. Should I accept a worker’s compensation lump sum payment offered? The decision to accept a lump sum payment should not be taken lightly, as it has major consequences. Notably, your entitlement to a common law claim may be affected. During the process of recovery, you may be asked to attend an Independent Medico-Legal appointment to assess your injuries and determine whether they have become stable and stationary. This is often done when your recovery is not complete, and there is a chance that you have sustained a permanent impairment as a result of the injury. WorkCover Queensland can issue a Notice of Assessment and offer you a lump sum payment for your impairment. Your weekly payments will stop once you have been issued a Notice of Assessment. It is very important at this stage to seek legal advice before you accept the lump sum payment. If your injury was due to the negligence of your employer, you may be entitled to a common law claim in addition to your statutory entitlements (like weekly payments and medical expenses). However, your ability to pursue a common law claim for negligence against your employer may be at stake if you accept a lump sum payment. It is crucial that you seek legal advice if you have been offered a lump sum payment. GET ADVICE FROM A WORKERS COMPENSATION LAWYER:  1800 659 114 Get help from a worker’s compensation lawyer Getting injured at work can be stressful. It is very important to focus and prioritise rehabilitation when you have sustained an injury. A weekly payment to support an injured worker financially, aids and helps them to focus on recovery. If, however, your worker’s compensation claim has been denied, or your weekly payments have been decreased or stopped altogether, you should seek advice and assistance from a lawyer experienced in Queensland worker’s compensation claims. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/november/workers-comp-weekly-payments-qld/ Sun, 03 November 2024 00:00:00 The Fair Work Commission ( FWC ) determines that a Church employee’s dismissal for receiving the COVID-19 vaccine was unfair and awards $8,000 in compensation. You can read the full decision of the unfair dismissal claim of Lainie Chait v The Church of Ubuntu Inc [2024] FWC 703 here. Background to the unfair dismissal claim Lainie Chait worked for the Ubuntu Wellness Clinic Newcastle ( Clinic ), which was part of and controlled by the Church of Ubuntu ( Church ), selling cannabis products for medicinal purposes. After receiving a vaccination against COVID-19 ( COVID ), Ms Chait was dismissed from her job at the Clinic by the Church. Ms Chait first learnt her employment was terminated on 11 October 2021 from a co-worker who sent her a voice recording of the Church President, Mr Barry Futter, making a statement on Facebook Messenger that he had heard that Ms Chait had been vaccinated and that “ nobody can work for us if he’s vaccinated ”. After Ms Chait attempted to contact Mr Futter to discuss the matter, Mr Futter replied by text message saying: “ Hey, if this is about you getting jabbed. I wish well. Talking to you won’t assist [at the moment]” and provided Ms Chait with the same voice recording she had received from her work colleague. Later, the Church’s Vice President, Ms Karen Burge, sent Ms Chait a letter terminating her employment that said receiving the COVID vaccination was: “ in contradiction with our Constitution and contrary to our position on what is required of us by our Lord God and Creator. ” Employee lodges an unfair dismissal claim Ms Chait made an unfair dismissal application to the Fair Work Commission on 29 October 2021, alleging that she had been unfairly dismissed. The Church refused to participate in the hearing after the FWC (Vice President Asbury, formerly Deputy President and the Full Bench on appeal) found that Ms Chait was an employee of the Church and not an independent contractor of the Clinic, as contended by the Church. The FWC also found that Ms Chait’s unfair dismissal application was filed within the required statutory timeframe, 21 days after she was terminated. The Church advised the FWC that it considered the Full Bench’s decision upholding Vice President Asbury’s decision that Ms Chait filed her application within the required statutory timeframe was “ void ” and it would not be “ entertaining these charades any further and we will deal with this matter if and when it comes before a competent court of law ”. Despite the Church not participating in the hearing, Vice President Asbury took into consideration the Church’s evidence and submissions filed in the jurisdictional hearing. Church asserts vaccination contrary to God’s teachings During the jurisdictional hearing, the Church asserted that Ms Chait was a full member of the Church and bound by its Constitution, which prohibited vaccination. The Church indicated that Ms Chait’s dismissal was based on their views about following “ good Scripture ” and a belief that receipt of the COVID vaccination “ is contrary to God’s teachings ” and is “ evil and demonic in its construct ”. However, the Church failed to provide the FWC any rationale for this belief. The Church’s opposition to the COVID vaccination was in response to several issues, including the mandates imposed by the NSW Government and that a “ small number of people profiting enormously from ” vaccinations. The Church also believed that there was “ indisputable evidence ” that the COVID vaccination “ harms people ”. Employee asserts she was punished by Church for following public policy regarding COVID vaccination Ms Chait submitted that she was dismissed by the Church for no other reason than because she received a COVID vaccination and said: “ It is extraordinary that an employer could punish an employee for following a public policy which was followed by all public health authorities and reflected in the public health orders in New South Wales and other jurisdictions ”. Ms Chait also said that the Church’s Constitution made no mention of vaccinations, and the Church had previously made public statements that it was “ pro-choice ”. Ms Chait submitted that she only became aware of the Church’s religious opposition to the COVID vaccination after she was dismissed. Further, she was not notified of the Church’s position about the COVID vaccination, nor was she given the opportunity to respond to that position before the dismissal was effected. FWC determines dismissal was unfair The FWC found that Ms Chait was not a member of the Church as purported by the Church, and any requirement for her to adhere to its teachings, as well as the Church’s position that no-one who had received the COVID vaccination could work for them, were unreasonable. Ms Chait had been working for the Church without any issues about her non-membership being raised during her employment and the role that she was performing was not “ an intrinsically religious job ”. Further, it was found that the Church’s Constitution made no mention of vaccination being forbidden and that members of the Church had received other vaccinations that were not the COVID vaccination without any issue being taken by the Church. The FWC found that the dismissal was unfair, as the Church: did not have a valid reason to terminate Ms Chait’s employment; did not notify Ms Chait of the reasons for the dismissal before the decision to terminate her employment was made; and did not provide Ms Chait with an opportunity to respond to the reasons for the dismissal, and the Church President specifically rejected Ms Cait’s attempt to have such a discussion. The FWC also found that the dismissal was harsh, unjust and unreasonable because: Ms Chait had suffered economic consequences after the dismissal took effect, as she had limited means and was unemployed for approximately 12 months after the dismissal; Ms Chait was not guilty of “ deliberately flouting ” the rules of the Church or any misconduct by becoming vaccinated; and the Church had no reasonable basis to find that Ms Chait had been deceptive or dishonest about receiving the COVID vaccination. Compensation awarded for unfair dismissal Vice President Asbury awarded Ms Chait $8,000 in compensation, which was equivalent to 12 weeks' salary. She noted the amount was not near the legislative cap for compensation in unfair dismissal matters, which is 26 weeks. Vice President Asbury observed that the Church should consider itself “ fortunate ” that Ms Chait had maintained her claim of $8,000 throughout the proceedings, as she may have awarded Ms Chait a higher amount had she not done so. Get help from an employment lawyer If you’re experiencing any issues with your employment, including issues related to dismissal, you should contact your union or one of our award-winning employment lawyers for advice and assistance. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/october/unfair-dismissal-after-covid-vax/ Sun, 27 October 2024 00:00:00 Under the Workers Compensation Act 1987 , the insurer has the right to undertake a work capacity assessment in an injured worker’s compensation claim. The purpose of a work capacity assessment is to determine what the injured worker’s current capacity is to earn in suitable employment as a result of their workplace injury. Upon the insurer carrying out its work capacity assessment, it has the right to issue a work capacity decision. Work capacity decisions can adversely affect an injured worker’s ongoing entitlement to receive weekly compensation payments from the insurer. When are work capacity assessments required? Under section 44A of the Workers Compensation Act 1987 (“WC Act”), the insurer has the right to conduct a work capacity assessment and issue a work capacity decision every 2 years. This can happen at any stage of the worker’s compensation claim. The insurer is not permitted to conduct a work capacity assessment or issue a work capacity decision in a worker’s compensation claim if it has been determined that an injured worker has a whole person impairment of 31% or greater as a result of the injuries they had sustained at work. Insurers tend to carry out work capacity assessments and issue work capacity decisions when either of the following events occur in a worker's compensation claim: when the injured worker is coming up to receive 130 weeks of weekly compensation payments from the insurer; or when the insurer becomes aware that the employer is going to terminate the injured worker’s employment because of their workplace injuries; or when the injured worker has capacity to work and is unable to return to their place of employment under the advisement of their GP; or when the employer is unable to provide suitable duties to the injured worker; or after the insurer has provided the injured worker with a small amount of assistance with finding alternative employment, and they have been unable to find such work. This means that the majority of injured workers under the NSW worker’s compensation scheme are at risk of their weekly compensation payments being adversely affected at times when they most need help from the insurer when they are attempting to return to work.   What types of work capacity decisions are made? Section 43 of the WC Act states that a work capacity decision can be a decision about: a worker’s current work capacity; what constitutes suitable employment; and the amount an injured worker is able to earn in suitable employment. What must an insurer consider when making a work capacity decision? When the insurer assesses whether suitable employment is available to the injured worker, the insurer must have regard to: the nature of the worker’s incapacity; the worker’s age, education, skills and work experience; any injury management plan previously or currently implemented; and any occupational rehab services that are being provided or have been provided. What considerations can insurers exclude when making a work capacity decision? When making a decision as to what constitutes suitable employment, the insurer does not have to have regard to: whether the employment is actually available; whether the work or the employment is of a type or nature that is generally available in the employment market; the nature of the worker’s pre-injury employment; and the worker’s place of residence. Many insurers have used these exceptions to reduce or stop injured worker’s payments. Many of these decisions start with the insurer organising a vocational assessment by a vocational assessor. Upon an injured worker undertaking a vocational assessment, they need to ask their GP to notify them when they have received the suitable employment options from the vocational assessor. It is imperative that the GP discusses these suitable employment options with the injured worker before they sign off on these options and provide their approval to the vocational assessor. When the GP is talking to the injured worker, they need to ascertain: whether they can realistically carry out the duties required because of the injuries they sustained at work (both primary and consequential), and whether they can carry out the duties based on their age, education, skills and experience. If the GP forms the opinion that the suitable employment options are not suitable for the injured worker, they need to notify the vocational assessor and explain the reasons why. GET ADVICE FROM AN WORKER'S COMPENSATION LAWYER:  1800 659 114 Example where a vocational assessment reduces the weekly payments An injured worker was an accountant for a period of 10 years. The injured worker stopped working as an accountant approximately 5 years ago. The injured worker moved into an administrative role after the accounting role approximately 5 years ago. The worker got injured at work approximately 2 years ago while working in the administrative role. In the administrative role, they earned $40 per hour and worked 38 hours per week, making their pre-injury weekly wages $1,520. Since the injury, the worker returned to work on pre-injury duties on a part-time basis of 20 hours per week. This means that the employer would pay the first 20 hours of pay and the insurer would pay the remaining 18 hours of worker’s compensation payments at the rate $40 per hour. The insurer would therefore pay makeup pay of $720 ($40 x 18 hours). The insurer did a vocational assessment that stated that there were accounting jobs available where the injured worker could earn approximately $65 per hour. This would mean the insurer has assessed that the injured worker could earn $1,300 (20 hours capacity x $65 per hour). On the basis of the potential for the injured worker to earn $65 per hour (rather than $40) whether or not an actual job was available, the insurer reduced the worker’s compensation payments from $720 to $220 per week ($1,520 minus $1,300). This is a significant difference that clearly impacts an injured worker’s weekly payments. Can an injured worker review an adverse work capacity decision? The insurer is required to give the following notice period to the injured worker if it is going to reduce their entitlement to weekly compensation payments: two weeks if the injured worker has received no payments or less than 12 weeks of weekly compensation payments from the insurer; and three months if the injured worker has received 12 or more weeks of weekly compensation payments from the insurer. As soon as the insurer has notified the injured worker that it is going to reduce their entitlement to weekly compensation payments, it is highly recommended that they obtain legal advice from an Independent Legal Assistance and Review Service (ILARS) approved lawyer. An ILARS-approved lawyer will be able to identify any potential grounds upon which an injured worker can request a review and/or take the necessary steps to refer their matter to the Personal Injury Commission for dispute resolution within the three month notice period. The lawyers in our Sydney personal injury team are ILARS-approved lawyers and are happy to assist any injured worker with their worker’s compensation claim.   Get help from a worker’s compensation lawyer Since late 2023 and into 2024, there has been a dramatic increase in insurers issuing work capacity decisions as a way of reducing their financial liability on a worker’s compensation claim, especially in and around the time when injured workers are attempting to return to work. Therefore, it is imperative that an injured worker obtains legal advice from an ILARS-approved lawyer if either of the following occurs: the insurer has notified them that they need to attend a vocational assessment; or they receive an adverse work capacity decision from the insurer, which reduces their weekly compensation payments or stops them after the required notice period. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/october/work-capacity-decisions-nsw/ Sun, 20 October 2024 00:00:00 Updated December 2025 Australian employees already have rights when it comes to choosing whether they will work additional hours beyond their working day. Until recently, what was missing was guidance about what happens with contact and enquiries that might not amount to work, even though they intrude on your personal time. Laws giving employees the right to refuse employer (or third-party) contact outside working hours came into effect from 26 August 2024 for employees of non-small businesses (15 or more employees) and from 26 August 2025 for employees of small businesses (less than 15 employees). The increased availability of new technologies – smartphones in particular – has brought with it an increasing sense of connectedness, but in some cases, that has also meant an increased sense of being tethered to your work, no matter what time of day. The same technologies that enable flexibility and working from home also mean that work is always at your fingertips and that workers are almost always contactable. The right to disconnect laws will allow workers to “switch off” from work and are aimed at providing a clear distinction between working hours and personal time. Because the new laws apply differently to different employees, this article only provides a broad overview of the law. If you’re considering your rights in relation to the right to disconnect, it’s best to seek legal advice. GET ADVICE FROM AN EMPLOYMENT LAWYER:  1800 659 114 Right to disconnect laws commenced August 2024 Legislative changes to employment laws commenced in August 2024 (for non-small-business employees) and have enshrined, for the first time, the “Right to Disconnect” protections for Australian workers. The Right to Disconnect is essentially a right for employees to not monitor or respond to contact (e.g. phone calls and emails) outside of working hours. The same laws take effect for small business employees from August 2025. The introduction of these laws follows similar moves in other countries (like Ireland and France), in recognition of the increased blurring of boundaries between working and personal time, which has been widely accepted as having been exacerbated by the COVID-19 pandemic. The laws provide for a Right to Disconnect in federal employment legislation (the Fair Work Act 2009 ), as well as requiring modern awards (which set the minimum terms and conditions of employment for many employees) and enterprise agreements (agreements on working conditions made at an enterprise level) to have a term that deals with the Right to Disconnect. Right to disconnect laws extended August 2025 On 26 August 2025, the Right to Disconnect protections were extended to small-business employees in Australia. The same provisions which apply to non-small business employees now apply to employees of small businesses. A small business employer is an employer with less than 15 employees at a particular time. What is the Right to Disconnect? Under Australian employment law , an employee may refuse to monitor, read or respond to contact (or attempted contact) from their employer or a third party (such as a client or provider) outside of working hours unless that refusal is unreasonable. The key factor is whether refusing contact or attempted contact is unreasonable. In some scenarios, for example where an employee is paid extra to be available (either in the form of an additional allowance or in their base salary), or where it is a genuine emergency, it may be unreasonable to refuse to be contacted. It will also be unreasonable to refuse contact if the contact is required by law. There are also factors which take into account the employee’s personal circumstances. For example, it may not be unreasonable to refuse contact if an employee isn’t a senior employee or has family or caring responsibilities. This doesn’t mean that it’s illegal for an employer or a third party to try to make contact with you , but it does mean that there are circumstances in which you can refuse that contact. It also means that, as long as it is not unreasonable, you may be able to refuse to monitor or respond to communications - for example, by not checking or replying to emails outside of hours. What happens if I exercise my Right to Disconnect? Exactly how the Right to Disconnect affects you will depend on a number of factors like: the work you do; your remuneration; the industry you work in and the modern award (if any) that you’re covered by; what your employment contract says; and, whether you’re covered by an enterprise agreement. For this reason, you should seek advice about your rights before you exercise the Right to Disconnect. GET ADVICE FROM AN EMPLOYMENT LAWYER:  1800 659 114 If you refuse to monitor, read or respond to contact outside of working hours, and that refusal is not unreasonable, your employer may contravene your workplace rights if they take adverse action (such as disciplinary action against you and/or terminating your employment). However, if your refusal is unreasonable, they may be able to take those steps. For this reason, it is imperative that you obtain advice, know your rights, and then make an informed decision about whether you refuse outside-of-hours contact. If there is a dispute about your Right to Disconnect (for example, if you refuse contact and your employer thinks that that refusal is unreasonable), then either you or your employer can refer the matter to the Fair Work Commission if workplace discussions don’t lead to a resolution. If the matter doesn’t settle, the Fair Work Commission can make a range of orders, including that the employer should refrain from taking any disciplinary action or no longer require you to monitor, read or respond to contact outside of usual hours. The Fair Work Commission can also order an employee to no longer unreasonably refuse contact. Get help from an employment lawyer If you’re considering exercising your Right to Disconnect, or if you have already refused to respond to out-of-hours contact and your employer has taken or might take action against you, please get in touch with one of our award-winning employment lawyers. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/october/right-to-disconnect/ Mon, 14 October 2024 00:00:00 When a medical practitioner or healthcare provider acts negligently in the care of their patients, it can have severe and lasting impacts on those patients. Healthcare providers in Australia must act to ensure the safety and wellbeing of their patients, because a failure to do so may cause significant physical and psychological injuries. This blog discusses medical negligence compensation claims in Queensland: Defining the term medical negligence; When negligence may lead to a medical negligence claim; Breach of duty of care by a healthcare professional/provider; Compensation entitlements in medical negligence claims; and Crucial time limits to make a medical negligence claim. What is medical negligence? Medical negligence , also referred to as medical malpractice, is where a healthcare professional or provider (for example, GP, specialist, hospital etc.) fails to provide an appropriate standard of care to a patient, thereby causing them physical or psychological harm. Doctors, hospitals and healthcare providers must act to the accepted standard of practice in the Australian medical community. That is, to provide treatment and advice with reasonable care and skill to ensure the wellbeing and safety of the patient. Where medical professionals or healthcare providers have not followed this standard and subsequently caused harm to their patients, there may be a case for medical negligence compensation. When might negligence lead to a medical negligence claim? It is well established in Australian law that the relationship between medical practitioners/health care providers and patients gives rise to a duty of care. Due to the vulnerability of patients and the expertise, knowledge and skills required by medical professionals and healthcare providers, the content of the duty of care is high. If the standard of care expected is not met and the patient suffers an injury as a result, this may give rise to a medical negligence claim. For a successful medical negligence claim, it must be established that: the medical professional/health care provider owed the patient a duty of care; the medical professional/ health care provider breached that duty of care by an act or omission; that patient suffered physical and/or psychological harm; and the act or omission caused the harm suffered. In a medical negligence claim, it must be shown that the injury suffered by the patient was a result of the medical professional or health care provider breaching the duty of care owed to the patient. Therefore, if a patient has been injured from a complication during the medical treatment, but it is determined that the health care provider did not act outside of the standard of care expected, then a a claim for medical negligence would fail. Sometimes treatment has bad outcomes. Medical negligence claims are, by their nature, very complex. Our medical negligence lawyers have extensive experience and knowledge to help you navigate this complicated process to recover the compensation you deserve. GET ADVICE FROM A MEDICAL NEGLIGENCE LAWYER:  1800 659 114 What is considered a breach of duty by a healthcare professional/healthcare provider? Medical professionals and health care providers have a duty to take reasonable care to ensure the safety and well-being of their patients, including to prevent causing the patient injury or harm. The standard of care must be one which a reasonable and competent healthcare provider in the same position would have done. If this standard of care is not met, it would be considered that the medical practitioner or health care provider breached the duty of care owed to their patient. Some examples of a medical professional or health care provider breaching their duty of care include, but are not limited to: misdiagnosis or delayed diagnosis of a medical condition; delayed treatment of a patient; surgical mistakes/errors; prescribing the wrong medication to a patient; failing to advise a patient of the risks of treatment; and performing a procedure without the consent of the patient. If a breach of duty has caused the patient harm or suffering, a medical negligence compensation claim may be brought against the medical professional or health care provider. If you are unsure whether you have a medical negligence claim, one of our experienced lawyers can speak to you about your circumstances and advise whether the medical practitioner or professional or health care provider breached their duty of care to you. GET ADVICE FROM A MEDICAL NEGLIGENCE LAWYER:  1800 659 114 What compensation entitlements are available in medical negligence claims? If you are successful in a medical negligence claim, you may be entitled to recover the following: Pain, suffering and loss of life enjoyment; Past and future medical, hospital and rehabilitation expenses; Past and future loss of earnings and superannuation contributions; Out-of-pocket expenses, including medications, travel and equipment; Home and vehicle modification, if required; and Care provided to you, either gratuitously by family and friends or by paid professional services. Are there time limits to bring a medical negligence claim in Queensland? Generally, a claimant has only three (3) years from the date on which the cause of action arose to commence legal proceedings in a Court against the persons or parties legally responsible for the injury. In the case of an injured child, the child has until they turn 21 years of age to commence legal proceedings. However, notice of a claim for compensation should be provided to the medical professional or healthcare provider who allegedly acted negligently within nine months of the medical incident. There are many exceptions to the general time limit rule. Therefore, it is important to seek legal advice and discuss the prospects of success of a claim for compensation with an experienced medical negligence lawyer. Get help from a medical negligence lawyer At Hall Payne Lawyers, we understand that suffering a personal injury as a result of medical treatment can be extremely stressful, and the claim process can be very complicated and confusing. If you have been injured as a result of medical treatment or are unsure whether you have a medical negligence claim, speak to one of our experienced lawyers to ensure you receive the compensation you are entitled to. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/october/medical-negligence-claims-in-queensland/ Mon, 07 October 2024 00:00:00 In order to gain registration as a health practitioner in Australia, you must be granted registration by the relevant Board. There are different types of Australian Health Practitioners Registration Agency (‘ AHPRA’ ) registration – general registration, specialist registration, provisional registration, limited registration and non-practising registration. This article discusses the difficulties some people face when applying for and obtaining AHPRA registration and the processes you may encounter. What is AHPRA registration? AHPRA is the national agency responsible for the registration of Australia’s health practitioners. They work with national boards (for example, the Medical Board of Australia, the Nursing and Midwifery Board of Australia, the Pharmacy Board etc). At the outset it is important to appreciate registration is not an entitlement. It will only be granted by the relevant Board if the Board is satisfied you meet the requirements of the Health Practitioner Regulation National Law which applies in your state. Suitability considerations when applying for AHPRA registration You must be considered by the relevant Board ‘suitable’ to hold registration. The Board will consider the following matters when assessing your suitability: whether you have a health impairment that would detrimentally affect your practise of the profession to an extent that it would or may place the safety of the public at risk; if you have been previously registered in another jurisdiction or an old registration scheme and disciplinary proceedings were commenced against you; if your English-speaking competency is not sufficient to practice; if registration outside of the Australian registration system is suspended or cancelled on the ground for which your registration in Australia could be suspended or cancelled; whether your recency of any previous practise in the profession is sufficient to meet requirements in the recency of practise registration standard relevant to your profession; if you fail to meet any other registration standards; if, for any other reason, you are considered not to be a fit and proper person for general registration or unable to practice the profession competently and safely. Eligibility for AHPRA registration  General registration To be eligible for general registration you must be qualified and have successfully completed any required period of supervised practise or any examination or assessment that is required by the registration standard which covers your profession. Registration standards set out what criteria you must satisfy to be registered. You must also be suitable to hold general registration (see above under “suitability conditions”), not be disqualified from applying for registration or being registered, and meet the other requirements in the registration standard for your profession. Specialist registration Specialist registration is for people who are recognised in a specialty in their health profession. You must hold an approved qualification for the specialty or one that is substantially equivalent or based on similar competencies to an approved qualification. Alternatively, you must hold a qualification relevant to the specialty and have successfully completed an examination or other assessment required by the Board for registration in the specialty. Provisional registration This kind of registration enables the registrant to complete supervised practice to be eligible for general registration. You must already hold the qualification for general registration, be suitable for provisional registration (which has the same meaning as for general registration, see above) not be disqualified from applying for registration or being registered, and meet the requirements in the registration standard for your profession. Criminal history and AHPRA registration To apply for AHPRA registration, you will be required to produce evidence of your identity and undergo a criminal history check.  If you have a criminal history which is relevant to your practise as a health practitioner, the relevant Board will decide whether you are an appropriate person to practise and/or whether it is in the public interest for you to practise. Whether your criminal history is relevant to your practise depends on a number of factors, such as: nature and gravity of the offence or alleged offence; the period of time since you committed or allegedly committed the offence; whether a finding of guilt or a conviction was recorded or charges are still pending the sentence imposed; your age and the age of any victims at the time of the offence or alleged offence; whether or not the offence has been decriminalised; the likelihood of future threat to a patient by you; the information you give to the Board; any other matter that the Board considers relevant. The application registration form requires you to declare your criminal history. Failure to declare criminal history during the AHPRA registration process may have significant adverse consequences. If you declare your criminal history, AHPRA may send you a letter asking you to provide an explanation in relation to it. We recommending obtaining legal advice at this point so that you can be advised on the appropriate response to provide to AHPRA and any other documents you need to supply to ensure your best chance of having your registration granted. GET ADVICE FROM A HEALTH LAW LAWYER:  1800 659 114 Notably, once registered, you also have an obligation to notify AHPRA of any criminal charges that arise during your registration. You can read more about this in our earlier blog, “Health practitioners’ obligations to notify AHPRA of criminal charges” . When AHPRA asks you for more information After receiving your application form and the other necessary information, AHPRA will assess your registration and you will be advised whether you are required to provide any further information to the Board. AHPRA usually sends an email to applicants notifying them of any further information which is required and the time by which they must respond. As this information may be used in deciding whether or not to grant your registration, you should obtain legal advice before providing any requested information to the Board. GET ADVICE FROM A HEALTH LAW LAWYER:  1800 659 114 You must provide the Board with the information by the date required or the application will be considered to be withdrawn. Therefore, it is critical you supply the requested information within the stated timeframe or obtain an extension of time from AHPRA. If, after considering your application, the Board proposes to refuse your application or place conditions on your registration, AHPRA will notify you of the proposed refusal/conditions and invite you with an opportunity to respond within 30 days or more about the proposal. We recommend you seek advice from a lawyer experienced in health law as soon as possible after receiving a notice of proposed refusal/conditions to ascertain whether you have any grounds for arguing the Board should grant your registration. If the Board registers you with conditions or refuses to register you at all, you may apply for a review of the decision to a Tribunal. There are very strict timeframes which apply, and you should contact a lawyer as soon as receiving the Board’s decision. Get help with your AHPRA registration from a health law lawyer Hall Payne Lawyer’s health law team has assisted many clients who have received proposals to refuse their registration or place conditions on their registration. Give our office a call today if you need advice. Remember, there are time limits associated with the AHPRA registration process, so it’s important that you act swiftly if you have any issues. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Further reading Making statements over the phone to AHPRA AHPRA framework to manage vexatious complaints against health practitioners Health practitioners’ obligations to continually update National Board https://www.hallpayne.com.au/blog/rss/blog/2024/september/ahpra/ Sun, 29 September 2024 00:00:00 If you’ve been terminated and you believe that termination is harsh, unjust or unreasonable, you may be eligible for an unfair dismissal claim in the Fair Work Commission. If you are a national system employee* and want to make an unfair dismissal claim, you should be aware of the steps involved before you can get an outcome. * Broadly speaking, a national system employee is one employed in private enterprise or Commonwealth authorities. An example of a national system employee is someone working for a mining and resources company or a private hospital. An example of a Commonwealth authority is the Australian Tax Office or the Australian Federal Police. State and local government employers are not national system employers What is the Fair Work Commission? The Fair Work Commission ( the Commission ) is the industrial relations tribunal of Australia that deals with industrial awards, setting the minimum wage, approval of enterprise agreements , general protections and unfair dismissal applications . Lodging the unfair dismissal application in the Fair Work Commission The first step of an unfair dismissal claim involves completing a  Form F2 (unfair dismissal application form) and submitting it to the Commission along with any evidence and the application fee within 21 calendar days from the date of your termination. If you’re unsure about eligibility criteria for unfair dismissal, you should speak with an employment lawyer. GET ADVICE FROM AN EMPLOYMENT LAWYER:  1800 659 114 You will usually be contacted by the Commission confirming receipt of your application and advising you of the next steps involved. The Commission will organise for a copy of your unfair dismissal application to be ‘served’ on the Respondent (your employer) named in your complaint. This isn’t the same type of service you may have heard of in other courts or tribunals where you may have to get a process server to do it for you. It’s a more informal service where the Commission makes the Respondent aware of your complaint by giving them a copy of your F2 Form and any evidence you attached. Be aware that any evidence you provide with your unfair dismissal application, such as copies of emails or text messages, will be given to the Respondent as well. Response from your employer to your unfair dismissal application The Respondents are invited to respond to your complaint by filling out their employer response form. This is where they get to indicate if there are any jurisdictional objections to your complaint and if they dispute any of the factual or legal arguments in your complaint. They will usually be given 7 days to respond to your application by the Commission. Unfair dismissal conciliation Once the Commission receives the response from your employer, it will organise what is called a ‘conciliation’. A conciliation is a form of alternative dispute resolution similar to a mediation. A conciliation generally is a meeting between yourself and the Respondent (usually a representative of the Respondent will attend, like a manager, boss or HR person). Conciliation provides an opportunity for you to explain the basis of your complaint and why you feel your dismissal was unfair in line with the requirements of section 387 of the Fair Work Act . You may be asked by the conciliator what remedies you are seeking out of the process if you haven’t already indicated that on your F2 form. You can request a combination or any or all of the following outcomes: Compensation for lost income – capped at 6 months wages; Reinstatement: For your termination to be recorded as a resignation: Statement of service – indicating your role and responsibilities while employed; and A written or verbal apology. Most conciliations occur over the phone or via Microsoft Teams. You will be notified by the Commission of when your conciliation is and by what method the conciliation will be held. A conciliation is run by someone called a Conciliator. They are a staff member of the Commission. Their job is to act as an impartial third party, between yourself and the Respondent to agree on an outcome. Conciliators are trained to understand the legal framework of unfair dismissal, however, they cannot provide analysis, legal advice, or make some kind of legal determination about your unfair dismissal claim. They will not be able to find in your favour or make any kind of finding of fault against your employer. Their role is not to make decisions but rather, to guide you in reaching an agreed resolution with your former employer. A conciliation is held in private; it is a confidential process that is without prejudice. This means that anything you say in the conciliation is protected and cannot be used against you in a further proceeding (for example, if your matter goes to a hearing), and this protection also covers the Respondent. The Conciliator may call you before the actual date of the conciliation to run through the process with you. They will also run through the expectations of both parties on the day of the conciliation, such as affording time to both parties to speak and obeying the rules of procedural fairness. Resolution after conciliation - deed of settlement If you and the respondent are able to agree on an outcome to your complaint at the conciliation, the matter will be resolved. Both you and the Respondent will agree on settlement terms which will be reflected in a deed of settlement. A deed of settlement is a type of contract. The Commission may ask if both parties are happy to use the Commission’s template deed. If you are represented by a lawyer, they may suggest using their firm’s template deed, or the Respondent may request the use of their template deed if they are represented by a lawyer. You should seek legal advice before signing a deed. Signing a deed of settlement has the usual effect of stopping you from taking any further legal action and it is important you know what the implications are for your individual case. They may also have a confidentiality clause stopping you from discussing the process and what outcomes you received and a mutual non-disparagement clause, meaning neither you nor the Respondent can say bad things about each other going forward. Most unfair dismissal claims do end up resolving at the conciliation stage. If you are not able to resolve the matter at the conciliation, you will then be asked if you wish to refer the matter to the hearing stage at the Fair Work Commission. LEGAL ADVICE HIGHLY RECOMMENDED IF PROCEEDING TO A HEARING:  1800 659 114 Escalating your unfair dismissal claim to a hearing at the Fair Work Commission Hearings at the Commission operate differently to a conciliation. They are a more formal legal process that is similar to a court process. Hearings are held in a public forum and will result in a published decision accessible on the Commission’s website and legal databases. Just like conciliations, it is common to have hearings conducted via Microsoft Teams. Hearings at the Fair Work Commission are overseen by Members. Members are similar to judges in that they have the power to make decisions at a hearing. There are several kinds of members, namely Commissioners, Deputy Presidents, a Vice President and President. Before the date of your hearing, you may be asked to attend what is called a ‘directions hearing’ with the Member who has been assigned to oversee your case. Directions hearings are used to discuss the next steps in the hearing and the due dates for certain material, such as an outline of argument and witness statements. After the directions hearing, you, or your lawyer or another representative (for example, your union) will be given a copy of what ‘directions’ the member has made with regard to the material required to progress the matter forward. The Commission will request a written outline of the legal arguments, in addition to a witness statement from you as the Applicant and any other witnesses you may have that are relevant to the complaint. The Respondent will also be asked to provide a response to your submissions and any witness statements they want to rely on. The directions will indicate when these items are due to the Commission. What happens at a Fair Work Commission hearing? Fair Work Commission hearings may operate slightly differently depending on whether you are represented by a lawyer or you are representing yourself. You may be asked to provide a short opening statement. You may be asked if you want to add more detail to your witness statement if you submitted one, and the Respondent will be provided with an opportunity to cross-examine you or your witnesses. You or your lawyer will also be given an opportunity to cross-examine the Respondent’s witnesses. You can expect the Member to ask questions of both yourself and the Respondent to ascertain certain information throughout the hearing. At the end of the hearing, you or your lawyer may be asked to provide any closing statements where you can sum up your complaint. The Associate will then direct the closure of the hearing. After the closure of the hearing, you must wait until the Member has given their decision in writing. You will usually receive a copy of this decision by email and details on how to appeal if you have been unsuccessful. You should not expect to receive a decision quickly as it takes Members time to consider both sides’ arguments and all of the written material. The outcomes of a Commission hearing are also quite different to conciliations. You won’t be able to ask the Commission to make an order regarding a statement of service or for your termination to be recorded as a resignation, as discussed above. At the conclusion of an unfair dismissal hearing, the Commission may: make an order dismissing your application if you haven’t satisfied the relevant criteria for unfair dismissal; make an order for compensation; and/or make an order for reinstatement. For more information on how to appeal a Fair Work Commission decision, see our earlier blog, “How to appeal a Fair Work Commission decision”. Get help from an employment lawyer Unfair dismissal claims can be surprisingly complex. Advice and assistance from an experienced employment lawyer is highly recommended. If you have a lawyer throughout the process, most of the steps discussed above will be facilitated through the assistance of your lawyer and will appear seamless as the process is ongoing. If you want to know how a lawyer can assist you with an unfair dismissal claim, please contact an experienced employment lawyer. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/september/unfair-dismissal-claims-process/ Mon, 23 September 2024 00:00:00 We are delighted to announce the promotion of Juliana Virine to Principal Solicitor at Hall Payne Lawyers. Juliana’s promotion reflects not only her exceptional legal expertise but also the values of persistence and compassion that define her impact on the firm and her clients over the years. Juliana has worked across a diverse range of practice areas, including industrial litigation and employment law. In recent years, Juliana has been central to the establishment of Hall Payne’s Health Law practice . She has developed a reputation as a trusted advisor for health professionals across the country, representing professionals facing regulatory action affecting their ability to practise and their employment. What makes Juliana’s journey especially noteworthy is she has worked part-time while progressing into a leadership role. Juliana attributes her success in part to Hall Payne’s support for flexible working arrangements and commends the firm’s commitment to fostering the growth of women and caregivers in leadership roles. Reflecting on her journey, Juliana shared: "Hall Payne has enabled me to practise in a way that means I can be both very involved with my young children and not compromise my professional development. Hall Payne’s approach to flexible work arrangements has been at the leading edge in the legal profession.   I was promoted to the role of Senior Associate just before I started my first period of parental leave. Hall Payne supported me taking an extended period of leave and allowing me to return to work in a practice area that meant I could maintain a good work life balance with a toddler. With my second child, I was welcomed back with open arms when I had finished my leave and supported to build up a practise area that is family friendly. I have also been really fortunate to have clients and opponents who have themselves had to navigate firsthand the tension between a high pressure role and little people.”   Juliana’s promotion is well-deserved, and her leadership will be valued as she continues to advocate for her clients, champion diversity and mentor the next generation of legal professionals. We invite everyone to join us in congratulating Juliana on this significant achievement, and we look forward to her ongoing leadership and contributions as part of the senior leadership team at Hall Payne Lawyers. https://www.hallpayne.com.au/blog/rss/blog/2024/september/juliana-virine-promotion/ Thu, 19 September 2024 00:00:00 From 26 August 2024, the Fair Work Act 2009 (Cth) ( FW Act ) definition of “employee” has changed. The changes were made to address issues related to the classification and treatment of independent contractors, ensuring fairer work conditions and protections for such workers. These changes are part of the Federal Government’s “Closing Loopholes” reforms to workplace laws. We explored the changes to Closing Loopholes No. 1 in our earlier blog, “Closing Loopholes sees significant changes to the Fair Work Act from December 2023” . No. 2 covers a number of reforms, but this blog is directed at the changes related to independent contractors. Background to determining if a worker is an independent contractor or employee Independent contractors have traditionally been seen as a separate and distinct category from employees. A true independent contractor will genuinely be operating their own enterprise, sometimes have greater flexibility but lack the basic protections afforded to employees under the FW Act. This means that independent contractors have often been subject to misuse, with some employers classifying workers as independent contractors for the purpose of avoiding various obligations such as superannuation , minimum wage requirements, worker’s compensation protections, leave entitlements and unfair dismissal protections . The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 ( Closing Loopholes No. 2 ) seeks to address these issues by tightening the criteria for independent contractor status and extending certain employee protections to these workers.  In 2022, the High Court of Australia handed down the decisions of Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 ( Personnel Contracting and Jamsek ). In Personnel Contracting and Jamsek, the High Court found that in deciding whether a worker is to be considered an employee or an independent contractor, this is to be primarily determined by the written contractual terms and not the other practical factors of the working relationship. These decisions give primacy to the written terms of the contract and largely disregard post-contractual conduct (except in limited circumstances). The High Court’s decisions marked a significant departure from the established multi-factorial test, asserting that when a written contract exists, the legal rights, duties and terms of the contract should take precedence over the real substance of the relationship and the parties’ conduct in performing the contract. The Changing Loopholes No. 2 changes in relation to independent contractors effectively overrule these High Court decisions, which is a positive change for those workers. Closing Loopholes key changes for independent contractors Definitions of employee and employer added to the FW Act The insertion of section 15AA into the FW Act responds to Personnel Contracting and Jamsek and returns the law to the position it was in prior to those decisions – that is, to look at other factors of the employment relationship in addition to the written contractual terms. Generally speaking, section 15AA provides that in determining whether a person is an employee, the focus is to be on the ‘real substance, practical reality and true nature of the relationship’ between the worker and the purported employer. Regard must be had not only to the employment contract, but also how the contract was performed in practice. In deciding the ‘real substance, practical reality and true nature of the relationship ’, section 15AA of the FW Act provides that the following must be considered: the totality of the relationship between the individual and the person; and in considering the totality of the relationship, regard must be had to not only the terms of the contract governing the relationship but also to other factors relating to the totality of the relationship, including (but not limited to) how the contract is performed in practice. Opt-out notice options Closing Loopholes No. 2 introduces a new section, 15AB into the FW Act (which commenced on 27 February 2024). This section allows an individual worker to provide a written ‘opt out notice’ to a potential employer to opt-out of being classified as an employee under the new definition. This has to be at the worker or the potential employer’s initiative and can only be done if the individual worker’s earnings exceed the ‘contractor high income threshold’. The contractor high income threshold had recently been set at $175,000.00, and will increase each year. An independent contractor is able to revoke the opt out notice at any time, should they wish to do so. Regulated workers – gig economy and road transport industry contractors will have increased protections Closing Loopholes No. 2 introduces greater workplace protections (Chapter 3A) for certain independent contractors who are either employee-like workers performing digital platform work (the gig economy) or engaging in the road transport industry, collectively ‘regulated workers’. A new Part 3A-2 is inserted into the FW Act, enables the Fair Work Commission ( FWC ) to set minimum standards orders and guidelines in relation to regulated workers, including but not limited to: payment terms; deductions; record-keeping in relation to matters covered by the FW Act; insurance; consultation representation; delegates’ rights; and cost recovery. Closing Loopholes No. 2 also inserts the following into the FW Act. Section 40D – changes for road transport industry This new section brings in changes for workers in the road transport industry. The Explanatory Memorandum details that this addition considers the need for an appropriate safety net of minimum standards for road transport workers and employees in the road transport industry, having regard to the need to avoid adverse impacts on sustainability, performance and competitiveness of supply chains and the national economy. Part 3A-3: protections against unfair deactivation and unfair termination for regulated workers Part 3A-3 adds new protections for regulated workers against unfair deactivation and unfair termination. Deactivation is where the worker’s access to the platform has been modified, suspended or altered in such a way that prevents them from working. This new addition will allow digital platform workers to apply to the FWC within 21 days of their deactivation to challenge that decision to deactivate them from the platform. These changes also bring in restrictions that will stop a person from ‘double-dipping’ by pursuing multiple unfair deactivation or unfair termination remedies under different laws.   Part 3A-4: collective agreements This addition allows the FWC to register consent collective agreements between a digital labour platform operator and an organisation entitled to represent the regulated workers (for example, a union). The Explanatory Memorandum provides that this amendment inserts a requirement that the FWC be satisfied that the operation of a proposed collective agreement would not be contrary to the public interest. It also provides that it would require the FWC to consider and make a discretionary judgment about the proposed operation of the agreement, having regard to whether it has been fairly made by consent for employee-like workers and regulated road transport contractors. Part 3A-5 enables the FWC to address any unfair contract terms of service, which are required to balance the needs of principals and independent contractors with relevant procedures and remedies. Get help from an employment lawyer Closing Loopholes No. 2 represents a crucial step towards ensuring fair treatment and protection for independent contractors in Australia. By tightening the definition of independent contractors, extending the minimum standards and entitlements, and enhancing enforcement mechanisms, the legislation addresses long-standing issues in the labour market. For employers, this means a need to review and potentially adjust their employment practices, while for workers, it offers greater security and protection. If you require advice or assistance about your obligations and/or your entitlements as a result of the Closing Loopholes No. 2 changes, or any other workplace law issue, contact one of our award-winning employment lawyers. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/september/closing-loopholes-no-2/ Sun, 15 September 2024 00:00:00 A Will is an important legal document that may need to be changed over your lifetime. There are many reasons why you may want to change your Will . You may notice a mistake or your circumstances may change. The temptation is to simply grab a pencil and make some handwritten changes to your Will. However, it is important to be aware of the legal consequences of this and how this may affect the validity of your Will. What is a Will? A Will is a legal document that specifies your intentions for your estate when you die. A Will contains who you would like your estate to go to (beneficiaries) and who you have chosen to carry out your wishes (executor) and administer distribution of your estate after you die. What is required for a valid Will in Queensland? Your Will is not valid if it is made when you are under the age of 18 years unless you are making your Will in contemplation of marriage or are married. Your Will must be in writing, signed and dated by you in the presence of at least two witnesses (who are over the age of 18 years). The two witnesses must sign the Will in your presence, and they cannot benefit from your Will or be someone who may claim through the witness to benefit from your Will.           Consider this example when determining who can witness your Will: You are married with two children; You are leaving your entire estate to your husband upon your death; You decide that should your husband pre-decease you, your surviving children will share your estate; Neither your husband nor your children can be a signatory witness to your Will as they are beneficiaries to the Will. You must also have sufficient mental capacity (also called legal capacity) to make a Will. This is known as testamentary capacity. Ideally, you should NOT write on an original Will to change it Significant problems that can arise if you write on an original Will. Handwritten changes to your original Will can: create confusion over what the alterations mean and what the Will itself means. raise questions over which terms are valid and which are not. These problems can lead to the expense and emotional distress of litigation in the Courts. It is better to make a new Will. Important information if you choose to make handwritten changes to your Will Although it is our advice that you should not make handwritten changes to an original Will, some people may choose to do so. An alteration to a Will is not effective unless you comply with the same requirements as when you made your Will. This means that any alteration to your Will, including handwritten changes, must be signed, dated, and witnessed. An alteration will not be valid if the words or the effect of the Will (that is, your intended wishes when writing your Will) are no longer clear because of the alteration. Your signature and the signatures of your witnesses must be in the margin or on some other part of the Will near your handwritten changes. Alternatively, you can also make a memorandum referring to the alteration (which can be handwritten or typed), which must then be signed, dated, and witnessed in the same manner as the original Will. Notably, any changes to the Will or any memorandum you write do not have to be witnessed by the same people as your original Will. Your witnesses just need to be over the age of 18 and not be a person who will benefit from your Will. Does this mean handwritten changes to a Will are valid? One requirement of a valid Will is that it be in writing. This can include any method of writing, for example, typed or handwritten, so long as it is clearly printed. However, it is not recommended to make handwritten changes to your Will as it is common that it will be left unsigned or unwitnessed or not witnessed properly. Likewise, your handwritten changes may not be clear to the Court or your executor(s), or they may be illegible. Further, given the importance of your Will, it is crucial that it is written and executed in a way that reduces any potential of a challenge to the Will . If your Will is prepared by an experienced estate planning lawyer, they will also ensure that there has been no undue influence or coercive behaviour impacting the Will-maker’s true wishes. We strongly recommend that should you need to make changes to your Will, that you write a new Will, rather than handwrite your changes on your current Will. If you choose to make changes to your current Will, it is recommended that you advise your beneficiaries and executor(s) of the changes you have made and that you provide a copy of the Will to your executor(s). What if handwritten changes to my Will are not valid? It is not uncommon for people to make handwritten changes to their Will and then fail to have those changes properly executed (that is, signed by the Will-maker and witnesses). The Court can choose to dispense with the execution requirements for a Will and any alteration or revocation of a Will. That is, the Court may choose to recognise the Will as valid (or other documents like a memorandum attached to the Will) even though the formal execution of the document has not occurred. The Court can do this if it is satisfied that the person intended the document (or part of a document) to form the person’s Will, an alteration to the person’s Will, or a full or partial revocation of the person’s Will. To make this decision, a Court will consider any evidence relating to the way the document (or part) was executed and any evidence of the person’s testamentary intentions (the wishes and intent of the Will-maker). It should be noted, however, that going to Court can be expensive as well as emotionally taxing for your executor and beneficiaries. It is therefore best to take all steps to avoid this scenario. When should I update my Will? You should update your Will in any of the following circumstances, noting that this list is not exhaustive: You want to change your Will; You get married or enter a de facto relationship; You divorce, separate or end a de facto relationship; Children or grandchildren are born; If you or someone in your Will changes their name; If an executor dies or becomes unwilling or unsuitable to administer your estate; If a beneficiary in your Will dies; You buy or sell property of significant value, or the item of property is specifically mentioned in your Will; Your financial circumstances change significantly. Get help from a Wills and estate planning lawyer While you can make handwritten changes to your Will you should be careful to comply with all legal requirements. If you are needing to make extensive changes rather than minor changes, it is best that you create a new Will. Hall Payne Lawyers offers an online Last Will and Testament tool that you can complete at home yourself. This is a cost-effective way to write your Will and is suitable if you need a simple Will. If you need a more complex Will, you should contact a member of our estate planning team. https://www.hallpayne.com.au/blog/rss/blog/2024/september/handwritten-changes-to-a-will/ Sun, 08 September 2024 00:00:00 Fixed term employment contracts are contracts that terminate at the end of an agreed specified period. In other words, a worker employed on a fixed term contract will only work for their employer until the date specified in their contract. From December 2023, changes to the Fair Work Act 2009 (Cth) ensure that fixed term employment contracts now have a maximum contract period of no more than two years. Background to changes to fixed term employment contracts The election of the Albanese Labor Government in May 2022 came with a refreshing desire to reinvigorate Australia’s principal statute concerning workplace relations – the Fair Work Act 2009 (Cth) ( the Act ) . Changes to the Act made by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) have drastically altered the nature of fixed term employment contracts, reducing the length of time an employee can be subject to a fixed term contract. New limitations on employers when using a fixed term employment contract The limitations under section 333E of the Act ensure that: employers are unable to employ workers, who are not casual employees, on fixed term contracts for a period of more than two years; consecutive employment contracts that would have the same effect as having a worker on a fixed term contract for two years are prohibited; contracts that have an option for the employer to extend or renew a worker on the same or similar terms, and the extension would result in the worker being engaged under the same contract for longer than two years are prohibited. Exceptions to fixed term contract limitations The Federal Government understands the need for flexibility and has expressly provided for situations in which the fixed-term contract restrictions under section 333E would not apply. These include contracts for employees that are: engaged to perform only a distinct and identifiable task involving specialised skills; engaged for a training arrangement; engaged to undertake essential work during a peak demand period; engaged to undertake work during emergency circumstances or during a temporary absence of another employee; earning over the high-income threshold; engaged under a contract for a job funded by the government engaged in a governance position which has a time limit applied under the governing rules; covered by a modern award that permits fixed-term contracts longer than two years. Benefits of fixed-term contract limitations for employees Before these amendments, workers could be employed on fixed term contracts for uncertain periods, with no guarantee of reemployment or improved pay. Workers would be subjected to the anxieties associated with financial insecurity. In a time when the majority of workers are already subjected to the immense pressures caused by the cost of living and the housing crisis, these amendments seek to relieve workers of the pressures of prolonged employment uncertainty. The new amendments to fixed term contracts will ensure that no worker can be strung along by an employer and be subject to constant uncertainty for time periods that span years. What to look out for if you are employed under a fixed term contract If your employer is attempting to engage you under a fixed term contract it is important to consider the following: whether the contract is for longer than a two-year period; whether you have been engaged under a series of fixed term contracts that would ultimately be in excess of two years; whether the contract provides an option for the employer to extend or renew the contract and, in doing so, may result in a fixed-term contract in excess of two years. What if I was already on a fixed-term contract immediately before the changes were applied? The changes to the fixed-term contract limitations only apply to new employment contracts; i.e. those contracts entered into after December 2023. However, if your employer seeks to extend your current contract, and this would result in a fixed-term contract in excess of two years, this may be a breach of section 333E of the Act. Disputes about fixed term contracts If a worker and their employer cannot resolve a dispute regarding a fixed term contract, either the worker or the employer can apply to the Fair Work Commission for help. The Commission can help resolve the dispute by: holding conciliation or mediation between the parties to discuss a resolution; making recommendations on how to resolve the dispute; or making a final order in the Commission to resolve the dispute if the other steps above are unsuccessful. Get help from an employment lawyer If you are uncertain whether your employer is attempting to engage you under a contract that is inconsistent with these limitations (or you are concerned about other aspects of your employment contract), it is important to understand your rights and entitlements. Hall Payne’s award-winning employment lawyers  are available to assist you with any concerns you have about your current employment contract or a new employment contract under consideration. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/september/fixed-term-employment-contracts/ Sun, 01 September 2024 00:00:00 On 7 March 2024, the Therapeutic Goods Administration (TGA) updated their guidelines on advertising health services; specifically, the advertisement of services that involve therapeutic goods. The updated guidelines were effective immediately. This article explains the applicable changes to the cosmetic nursing sector, specifically to those who advertise cosmetic injectable treatments. Changes to advertising cosmetic injectable treatments from March 2024 Cosmetic injectable treatments are colloquially referred to as treatments that remove wrinkles or enhance an individual’s appearance. The March 2024 changes to the TGA advertising guidelines mean that a cosmetic nursing clinic or practitioner cannot directly or indirectly advertise cosmetic injection treatments that contain the following substances: Schedule 4 medications (schedule 4 medications are drugs which are restricted to a prescription); or Schedule 8 medications (controlled drugs). The promotion of any services containing treatments comprised of either Schedule 4 or Schedule 8 drugs is now strictly prohibited. What do the TGA advertising changes mean for cosmetic injectable treatment clinics/clinicians? The changes to TGA advertising guidelines mean that it is now prohibited to reference in advertising treatments: medication trade names; product names; acronyms; or nicknames, which the public may construe as being a reference to a Schedule 4 medication or Schedule 8 medication. For example, the following phrases are now banned in advertising cosmetic injectable treatments, as they could lead the consumer to consider undertaking treatments comprised of schedule 4 or schedule 8 medications: anti-wrinkle injections; dermal fillers; and/or injectables used for improvement of appearance of wrinkles or subdermal fat. In making these changes to the advertising guidelines, the TGA aims to ensure that any individual seeking an injectable treatment which is comprised of a schedule 4 or schedule 8 medication, has proper consultation with an appropriate health care practitioner to discuss the general and specific risks of the desired treatments. The TGA definition of advertising? Section 3 of the Therapeutic Goods Act provides the definition of advertising as: ‘in relation to therapeutic goods, includes make any statement, pictorial representation or design that is intended, whether directly or indirectly, to promote the use or supply of the goods, including where the statement, pictorial representation or design: is on the label of the goods; or is on the package in which the goods are contained; or is on any material included with the package in which the goods are contained.’ Part 5-1 of the Therapeutic Goods Act prescribes that advertising requirements apply in circumstances where an advertisement is one that is directed to the public at large and is one that promotes therapeutic goods.  It is imperative to note that whether the advertisement is intended to promote the supply and use of therapeutic goods (schedule 4 or schedule 8 medication) is determined on how a consumer interprets the intent of the advertisement and not the intended meaning behind an advertisement by the person promoting the treatment. Failure to comply with TGA advertising guidelines The TGA is responsible for ongoing monitoring of compliance in respect of the advertising guidelines it seeks to impose. In circumstances where the TGA identifies a breach in advertising requirements, they may issue a direction notice which requires the advertiser to take immediate steps to redress the non-compliant advertisement. In serious circumstances of non-compliance, the TGA may issue a prevention notice to the advertiser which prevents them from making false or misleading advertisements for therapeutic goods. Sanctions and penalties for failure to comply with a TGA direction or prevention notice Failure to comply with either a direction notice or prevention notice may result in further investigation by the TGA. The following actions and enforcements are available to the TGA, depending on the result of an investigation: negotiating an enforceable undertaking; applying for an injunction; issuing an infringement notice; issuing a public warning notice; cancellation or suspension of a product from the Australian Register of Therapeutic Goods (ARTG), and/or recall of the goods; applying to the court for criminal prosecution or civil penalties. Get help from a health law solicitor If you have questions regarding the TGA advertising guidelines or you have been contacted by the TGA and notified that you are in breach of the TGA advertising guidelines, please contact our health law team to seek further assistance and specific advice.  Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/august/cosmetic-injectables-tga-guidelines/ Mon, 26 August 2024 00:00:00 Tasmanian workers facing termination of their worker's compensation weekly payments on the basis that they have “wholly and substantially recovered” from their work-related injury or illness have significant rights under the law – but strict time limits apply. Worker’s compensation claims process in Tasmania When a worker makes a claim for worker’s compensation due to a workplace injury or illness , the employer (or insurer) will make a decision about whether to accept or dispute the claim within 84 days. For information regarding disputed claims, read our earlier blog, “What to do if your Tasmanian worker’s compensation claim is disputed?” If a claim is accepted, an employer or insurer will generally meet the costs of the claim, including: weekly payments for any period of incapacity; medical expenses related to treatment for the injury; and travel cost and associated expenses. You can read more about the all the benefits and the claim’s process in our earlier blog, “WorkCover Tasmania - your plain English guide to workers compensation” . Terminating worker's compensation benefits once the claim is accepted Even after a worker's compensation claim is accepted, employers retain the right to terminate weekly payments on the basis that a worker has “wholly or substantially” recovered. You will have a right to seek a review of this decision, but strict time limits apply. GET ADVICE FROM A WORKER'S COMPENSATION LAWYER:  1800 659 114 Terminating worker's compensation benefits due to “Wholly or substantially recovered” Under section 86 of the Workers Rehabilitation and Compensation Act , an employer can terminate a worker who they believe has “wholly or substantially recovered”, however the employer needs to take certain steps to ensure that the termination is valid. These are: The employer must arrange for a medical practitioner to examine the worker. This can be any medical practitioner, but commonly an “Independent Medical Examiner” will assess the worker; The medical practitioner must then certify that the worker has “wholly or substantially recovered” from the injury and set out the reasons why they have reached that conclusion; The employer must then give the worker a notice which: states that the worker’s payments will be terminated within 10 days of the date that the notice was given to the worker; provides a copy of the certificate which states that the worker is “wholly or substantially recovered”; informs the worker that they have a right to refer that termination to the Tribunal for determination. This termination is often referred to by employers and insurers as an "86(3) termination”, and will always be accompanied by a “section 86(1)(c) certificate” signed by a doctor. An employer who terminates a worker’s payments without complying with this section can be prosecuted and fined. Strict time limits apply to appeal a termination of weekly payments A worker whose payments have been terminated on the basis of a whole or substantial recovery has significant review rights (rights to appeal the decision). However, it is important that any worker take action promptly. A referral must be made to the Tasmanian Civil and Administrative Tribunal within 60 days of weekly payments being ceased . The best way to do this is with the assistance of a lawyer. GET ADVICE FROM A WORKER'S COMPENSATION LAWYER:  1800 659 114 Additional entitlements: lump sum claims for whole-person impairment Further medical evidence from Independent Medical Examiners is particularly important where a worker has an entitlement to a “whole person impairment payment” (a lump sum payment) under section 71 of the Act. This is a payment for a permanent injury (physical or psychological) which can be assessed and determined by an accredited doctor. Generally speaking, under Tasmanian law, a worker with an injury which is assessed as carrying a whole-person impairment of 5% for a physical injury or 10% for a psychiatric injury will be entitled to a lump sum payment in addition to weekly payments and medical benefits. A worker with a whole-person impairment assessed at 15% or more may be entitled to further benefits, including an extended period of worker's compensation weekly payments and medical benefits. A worker with a whole-person impairment assessed at 20% or more may be entitled to further entitlements again, including the right to make a claim for common law damages against their employer. Even if a worker is determined to be wholly or substantially recovered, they may still have a compensable entitlement to lump sum compensation by virtue of a whole-person impairment. Get help from a Tasmanian workers compensation lawyer Any worker who is served with a notice terminating their payments on the basis that they have “wholly and substantially recovered” should seek legal advice early. Where reliable medical evidence can be found that a worker’s incapacity is ongoing, significant entitlements can flow, even after the termination. However, it is important that workers get advice quickly – a referral needs to be made within sixty days of the date of termination of payments to ensure that any referral has the best prospects of success. Our Tasmanian worker's compensation lawyers can assist you with any issues you are having with your claim, including termination of benefits due to whole or substantial recovery. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/august/stopping-workers-comp-after-recovery/ Sun, 18 August 2024 00:00:00 One of the 8 keys actions forming part of Australia’s new Migration Strategy announced by the government in December 2023 relates to a new visa category known as a Skills in Demand visa. This new visa will replace the Temporary Skills Shortage visa. The commitment to develop this new visa envisages its holders having full mobility in terms of their employment parameters and a clear pathway to permanent residence. As a migration law adviser, I say hallelujah, and it’s about time. For far too long, there has been uncertainty for applicants and visa holders in the temporary visa regime about the possibility of them eventually becoming permanent residents of this country. Employers and industry group leaders have an opportunity now, to provide feedback on the core skills occupations list by participating in a survey being administered by Jobs and Skills Australia. Further information and a survey link are provided below. What we know about the proposed Skills in Demand visa It will be granted for up to 4 years; It will replace the current Temporary Skill Shortage visa; There will be three pathways available – Specialist Skills, Core Skills and Essential Skills depending on annual earnings and occupation; It will allow the visa holder to switch employers/jobs more easily; It will provide the visa holder with more time to find another sponsor if their employment with the original sponsor ceases, and they can work during that time – a period of 180 days; It will provide a pathway to permanent residence, which will include an option independent of any employer; Employers may not have to pay all fees associated with sponsoring workers upfront, which is likely to get more employers offering sponsorship; Applications should be assessed and finalised quickly; A public register of approved sponsors will be developed. What we don’t know… yet As with everything, the devil is in the detail. Until such times as the Migration Regulations 1994 are amended to include this new visa category and policy around the criteria is developed, specifics are unknown. Timeline for commencement It is envisaged that the new visa will be open to applicants late in 2024. As always, things could change between now and then, and the published legislation will determine how effective this new visa category actually becomes in targeting temporary workers to address Australia’s dire need for skilled, semi-skilled and unskilled workers across all industries and sectors. Core skills occupations list Jobs and Skills Australia has the unenviable job of putting together the list of core skills occupations. One of the criteria for the Skills in Demand visa’s core skills pathway will be to nominate an occupation from this list which matches the job the visa holder will be required to perform. Their stakeholder consultation process is now underway. Having dealt with many employers crying out for skilled workers within their businesses/industries in occupations which haven’t previously been covered by any historical occupation list, now is the time to have your say. You can complete a survey, prepare a submission or do both to inform this labour market analysis project. Go to Draft Core Skills Occupations List (CSOL) for Consultation | Jobs and Skills Australia Three draft lists have been created for review. One includes occupations that Jobs and Skills Australia are confident will be on the list, another for those that will likely not be included and yet another for those occupations that are undecided at this stage. Of course, the final decision as to which occupations make the cut and which don’t will fall on the Minister for Immigration, Citizenship and Multicultural Affairs. Migration agent assistance Until this new Skills and Demand visa becomes available, many migrant workers will be on a Temporary Skills Shortage visa. If you’re having any difficulties in relation this visa, or any other visa and migration issues, our registered migration agent can assist. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: Increased protection for temporary migrant workers Who can help with your Australian visa application? Appeal options for visa applicants rejected due to failing the health requirement https://www.hallpayne.com.au/blog/rss/blog/2024/august/skills-in-demand-visa/ Mon, 12 August 2024 00:00:00 Content updated 9 April 2025 We have previously written a brief overview on the enforceability of restraint of trade clauses in employment contracts in our blog “Is a Restraint of Trade clause in my employment contract fully enforceable?” Today’s blog focuses on one particular kind of restraint, the “non-compete” covenant. What is a non-compete covenant in an employment contract? For the purposes of this blog, a non-compete covenant is an obligation contained within a contract of employment that expresses itself as preventing an employee from working for one or more alternative employers or a certain class of them or establishing a competing business of their own. The clause may or may not also specify that the non-compete covenant only applies: within a particular geographical location; and/or for a particular period of time following the employee’s departure. GET ADVICE FROM AN EMPLOYMENT LAWYER:  1800 659 114 Can my employer enforce the non-compete covenant? Under the general law, a non-compete covenant is presumed to be void because they are against public policy. A canonical explanation for why they are presumed void is that they make: “The general public suffer… it is in the public interest that a [person] should be free to exercise [their] skill and experience to the best advantage for the benefit of [themselves] and all those who dire to employ [them].” Morris (Herbert) Ltd v Saxelby [1916] 1 AC 668, at 699 (Atkinson LJ) Though the presumed invalidity of non-compete covenants remains deeply ingrained in the common law, gradual developments, particularly over the last twenty years, have carved out general principles in which a non-compete will be valid and may be enforced provided they are directed at a limited number of legitimate interests and are reasonable. Determining the validity of a non-compete covenant Whether a non-compete covenant is valid is assessed by the court at the time the contract was entered into: McMurchy v Employsure Pty Ltd [2022] NSWCA 201 at [40] (Gleeson JA). For a non-compete covenant to be valid : First, the employer must have a “legitimate interest” that the clause seeks to protect. Legitimate interests include: goodwill; and confidential information. Second, the non-compete covenant must be reasonable in the sense that it goes no further than is reasonably necessary to protect the employer’s legitimate interest. What might be considered a “legitimate interest”? For the employer to have a ‘legitimate interest’ in the restraint, the nature of the employee’s role and their rights and obligations under the employment contract must at least contemplate them acquiring confidential information or their being employed in a position involving the generation or attachment of their employer’s goodwill. For example: A person employed in a position where they will be a human interface between their employer and commercial suppliers or end customers may suffice for ‘goodwill’. A person employed in a position where they may be exposed to commercially sensitive information which, should it be used by a competing enterprise, may give them an unfair commercial advantage; then, that would suffice for establishing the employer’s legitimate interest in ‘confidential information’. The non-compete covenant must go no further than reasonably necessary In relation to the second element, that the clause be “reasonable”, relevant considerations of validity may include: the period of the restraint; the geographical area; the nature of the industry the employee works in; and again, the nature of the employee’s role. In relation to each of the above indicia, what is reasonable is tethered to the nature of the legitimate interest. For example: To protect goodwill and trade connections, it must be borne in mind that personal connections and human knowledge tend to diminish through time; An employer who engages in trade within one geographical location generally has no interest in preventing an employee from utilising their skills in a different location; and An entry-level role is of a fundamentally different character when it comes to commercially sensitive information than senior management. Reasonableness is entirely linked to the facts of each specific case. If you are concerned about the potential implications of a restraint in your employment contract, it is best to seek advice from a lawyer before making a decision which may result in a breach of your contract. GET ADVICE FROM AN EMPLOYMENT LAWYER:  1800 659 114 Enforceability of a non-compete covenant If a non-compete clause was valid when made, the question becomes whether it may be enforced against an employee in a particular situation. Unlike the assessment for validity, which is considered at the time the parties entered the agreement, considerations of enforceability are assessed at the time an employer seeks to enforce it. The court has an inherent jurisdiction to refuse enforcement of a restraint. Established grounds include: where an employer has not moved quickly to enforce the restraint; enforcement would harm persons who are not parties to the contract; enforcement may cause undue hardship on an employee. The enforcement of restraints is a highly fact-specific inquiry in which seeking tailored legal advice can be extremely important. Enforceability of a restraint of trade after a dismissal? As a general proposition, an employer who has wrongfully terminated an employee may not rely upon the terms of a non-compete in the employment contract. The Victorian Court of Appeal has comprehensively considered this issue in the case of Crowe Horwath (Aust) Pty Ltd v Loone [2017] VSCA 181; 54 VR 517 at [193] . Non-compete clauses to be outlawed from 2027 In its 2025-26 budget, the Federal Government announced that from 2027, it would ban non-compete clauses for employees earning less than the high-income threshold (in March 2025, this is $175,000 and is indexed annually). The proposal follows the Government’s Competition Review, which found that non-compete clauses are a common and increasing feature of the Australian employment landscape and are suppressing wages, including those of low-paid and vulnerable workers such as childcare workers, construction workers and hairdressers. The changes are forecast to raise the wages of low and middle-income workers by up to 4% and boost economic activity. The Government will also close loopholes in competition law that currently allow businesses to make anti-competitive arrangements. Such arrangements may include: Fixing wages: Two companies might agree not to pay above a certain amount, so workers can’t negotiate for better pay; ‘No-poach’ agreements: Companies agree not to hire each other’s employees, which stops workers from moving to a competitor for better pay or conditions. These arrangements hurt workers by capping salaries and limiting job opportunities, and they often happen without the worker's knowledge and/or agreement. Notwithstanding that many non-compete clauses are unlikely to be enforceable at law, threatened legal action often results in the employee’s compliance and the so-called ‘chilling effect’ of non-compete clauses. The proposed changes will limit the use of non-compete clauses, which will free many Australian workers to move to more productive, higher-paying jobs or start their own business without restrictions or fear of legal action. Key takeaways if your employment contract has a restraint of trade clause Non-compete covenants are routinely enforced in Australia, either informally between the parties or through the courts. The express terms of a restraint may deter employees from accepting work which they may have been able to undertake. Whether a restraint is valid and whether it may be enforced in a particular situation – is generally both factually and legally complex. For this reason, expert legal advice should be sought from an employment lawyer if a dispute has arisen over a non-compete you are a party to. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/august/non-compete-clauses/ Mon, 05 August 2024 00:00:00 In court proceedings in Western Australia, the Anglican Church finds itself at the centre of a complex case involving historical child sexual abuse . Two survivors of child sexual abuse are seeking to include the Church (as a further defendant) in proceedings related to abuse they endured at the hands of an employee of the Western Australian Cricket Association. This article explores the Court proceedings, the Church's position, and the broader implications for institutional responsibility and duty of care in child protection cases. The Roy Wenlock child sexual abuse case Roy Wenlock, now deceased, was employed by Anglican Church hostels between 1963 and 1977, during which time he committed offences against children. He subsequently worked for the Western Australian Cricket Association (WACA) for 29 years, where allegations of continued abuse have surfaced. The extent of Wenlock's abuse was revealed in a 2012 parliamentary inquiry investigating systematic sexual abuse at state-run hostels in WA. This inquiry brought to light the historical nature of the offences and the complexities surrounding institutional responses to such cases. Proceedings in the District Court of Western Australia Two men who allege they were sexually abused by Wenlock during his employment at the WACA in the early 1990s are seeking to include the Anglican Church in their child sexual abuse compensation claims. Their claims centre on the assertion that the Church should have informed the WACA about Wenlock's history of abuse. The Church is defending its position. The Church's defence The Anglican Church's defence rests on several key arguments that align with interpretations of established legal precedents. No duty to protect from third-party conduct: Counsel for the Church emphasised that courts have consistently held that a person or entity does not have a duty to protect someone from the conduct of a third person. Lack of control: The Church argues it had no control over what happened to these two abuse survivors after Wenlock left their employment, a crucial factor in determining duty of care. Speculation: The Church contends that any assumption about what might have happened had they informed the WACA would be "pure speculation", which cannot form the basis of a duty of care. These arguments highlight the complex legal landscape surrounding historical abuse cases and the challenges in establishing duty of care across different organisations and time periods. Implications for institutional responsibility in child sexual abuse cases This case raises important questions about the extent of institutional responsibility in cases of known child sexual abuse. It challenges the limits of duty of care and asks whether institutions have a legal obligation to share information that could potentially prevent further abuse. In this particular case, the two abuse survivors argued that the Anglican Church was aware that Roy Wenlock was a sexual predator and had a duty of care to inform the WACA of Wenlock’s known history of abuse. Judge Terence Palmer has reserved his decision on whether the claims against the Church should be dismissed. The outcome of this case could have significant implications for how institutions handle information about known sexual abuse offenders and their responsibilities to potential future victims. Get help from an abuse compensation lawyer Cases involving historical abuse are often complex and emotionally challenging. If you or someone you know has been affected by institutional abuse, it's important to seek both legal and personal support. At Hall Payne Lawyers, we have experience in handling sensitive cases related to institutional abuse. We can provide confidential advice on your legal options and guide you through the process with compassion and expertise. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Further reading You may find these articles interesting or useful: Child abuse claims- can they be thrown out of court? Abuse compensation due to negligence of sporting associations Child sexual abuse and exploitation of power in Australian schools Support services for survivors of child abuse If this article has raised concerns for you, please consider reaching out to one of these support services: 1800 RESPECT national helpline: 1800 737 732 Sexual Assault Counselling Australia: 1800 211 028 Bravehearts (support for child sexual abuse survivors): 1800 272 831 Blue Knot Foundation: 1300 657 380 Lifeline (24-hour crisis line): 131 114 https://www.hallpayne.com.au/blog/rss/blog/2024/july/waca-child-abuse-case/ Tue, 30 July 2024 00:00:00 When is it necessary to notify the Australian Health Practitioner Regulation Agency (“AHPRA”) that you or another practitioner is suffering a health impairment? Legislative framework covering health practitioners The Health Practitioner Regulation National Law ( Queensland ) (“the National Law”) regulates registered health practitioners. Broadly speaking, the National Law defines a health impairment as a physical or mental impairment, disability, condition or disorder that detrimentally affects or is likely to detrimentally affect your capacity to safely practise the profession. Registered health practitioners must notify AHPRA of any health condition or impairment, that detrimentally affects or is likely to detrimentally affect the ability to practise in their profession or as a student, the ability to undertake clinical training .  Obligations in annual statement when renewing registration Section 109 of the National Law requires a practitioner to declare they do not have an impairment (see above). Failure to make a candid and accurate annual statement may result in the commencement of an investigation and consequences, including disciplinary action. Where a practitioner has a condition which does not detrimentally affect or is not likely to detrimentally affect their practise, there is no requirement to declare the impairment. For example, where a practitioner takes reasonable measures to appropriately manage a health condition or impairment, such as taking time off work, seeking a treatment plan from a treating practitioner and complying with the recommended treatment, or where the impairment arises from a one-off acute medical episode. Mandatory obligation to notify AHPRA of an impairment Section 140 of the National Law imposes an obligation on all registered health practitioners to make a mandatory notification to AHPRA about a fellow registered health practitioner where they engage in notifiable conduct . Notifiable conduct is when there is concern of the following having occurred:  having practiced in the profession whilst intoxicated; having engaged in sexual misconduct in connection with the practice of the profession; having placed the public at risk of substantial harm when a practitioner practices in the profession while suffering from an impairment; and having placed the public at risk by practicing in the profession in a way that is a significant departure from accepted professional standards. As soon as practicable, after forming a reasonable belief, a registered health practitioner must notify the Office of the Health Ombudsman of the notifiable conduct. A registered health practitioner will not be required, under section 140 of the National Law, to make a mandatory notification about another registered health practitioner, if they form a reasonable belief of notifiable conduct during the course of providing health care services to that practitioner. What happens when a disclosure of a health impairment is made to AHPRA? If you, or someone else, has made a disclosure or notification to AHPRA in respect of a health impairment, it will be assessed by AHPRA and considered by the relevant National Board. The Board may commence an investigation after being notified a practitioner or student has an impairment if it decides it is necessary or appropriate to do so. During the investigation, AHPRA will gather all relevant information and may invite the practitioner or provide information or submissions. National Boards may, pursuant to section 169 of the National Law, direct health practitioners to attend an Independent Medical Examination before an appropriate expert who will produce a report with recommendations as to what action, if any, the Board should consider taking. In the course of a medical examination the practitioner may be requested to undergo pathology testing including drug and alcohol testing. Recommendations can include conditions on the practitioner’s registration. If, after considering the evidence gathered in the investigation, a National Board holds a reasonable belief that the health impairment may affect the practitioner’s ability to safely practice, they have the power to impose any of the following as an outcome: Conditions on registration , such as requiring attendance on a medical practitioner, alcohol or drug testing or restricting the scope of practice; Suspension of registration; or Referral to other agencies to deal with, such as the Office of the Health Ombudsman or QCAT. Get help from a health law solicitor You are not always required to disclose a health condition, and it is worthwhile seeking specialised legal advice to understand your obligations and consequences of doing so. If you think you have a health impairment or condition that requires notification to AHPRA and the relevant National Board, please contact our health law team to seek further assistance and specific advice.  Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: Immediate action against health practitioners Health practitioners’ obligations to notify AHPRA of criminal charges AHPRA framework to manage vexatious complaints against health practitioners https://www.hallpayne.com.au/blog/rss/blog/2024/july/ahpra-mandatory-reporting/ Mon, 29 July 2024 00:00:00 Workers are entitled to worker’s compensation for psychological injuries sustained in the workplace. However, claims for psychological injuries are disproportionately the subject of disputes by employers and insurers. It is important that workers making claims for psychological injuries are aware of their rights, particularly if the claim is disputed. When is a worker entitled to compensation for a psychological injury? The following workplace interactions, environments or behaviour may be considered causes of a worker suffering a psychological injury: Workplace bullying and harassment; Exposure to traumatic events; Physical and resep; Exposure to occupational violence and aggression; Excessive workload; Unreasonable time pressures and deadlines ; Being required to work unreasonable overtime; Poorly managed organisational change and support; Long hours; Being unfairly targeted in the workplace. When is a worker’s compensation claim for psychological injury disputed? Employers and insurers in Tasmania have 84 days from the date a claim is made to “dispute” liability. An employer might dispute a claim for reasons including: There is a dispute about the factual circumstances in which the injury occurred; They do not accept that a worker gave “notice” of their injury in time; They do not accept that the worker’s claim was made within time (being six months from the date of injury); or They believe the injury arose substantially from “reasonable management action”. A worker whose claim is disputed at this early stage will receive a referral under section 81A of the Workers Rehabilitation and Compensation Act 1988. This dispute is sometimes called an “81A referral”. What is “reasonable management action”? Frequently, employers and insurers disputing claims will rely on the defence of “reasonable management action” to dispute a claim. Generally, there is no entitlement to worker’s compensation if the injury arises substantially from: Action taken to transfer, demote, discipline or counsel a worker or to bring about the cessation of a worker's employment; or Action taken to not award or provide a promotion, transfer or benefit in connection with a worker's employment; or administrative action taken in a reasonable manner by an employer in connection with a worker's employment. Where that action is reasonable  and done in a reasonable manner . The question of what amounts to “reasonable” and “done in a reasonable manner” are often complex and can involve consideration of: The nature of the action; The worker’s rights under their instrument of employment; The employer’s policies, processes and procedures; The way in which the action was carried out; Whether the action was arbitrary, unjust, unfair or discriminatory. If you’re unsure whether an incident at work constitutes reasonable management action or whether it is bullying or harassment, you should seek advice from a lawyer experienced in worker’s compensation claims. What can I do if my worker’s compensation claim is disputed? If your worker's compensation claim is disputed on any ground, it is important to seek legal advice as soon as practicable. While a claim might be disputed at first instance, it may still have significant merit, and workers may be entitled to benefits including: worker’s compensation weekly payments; payment for General Practitioner care; payments for professional consultations, including with a psychiatrist or psychologist; payment for medications and other treatments; and a “whole person impairment payment” in some cases. Workers whose claims are disputed have a right to seek that their payments be reinstated in the Tasmanian Civil and Administrative Tribunal (TasCAT). Many claims which are successfully disputed under section 81A can be brought back to the Tribunal at a later date, by way of referral under section 42 of the Workers Rehabilitation and Compensation Act 1988 . There are no time limits for doing this, but it will often be in a worker’s interest to take action sooner rather than later. You can learn more about disputed claims in our earlier blog, “What to do if your Tasmanian worker’s compensation claim is disputed?” Get help from a worker’s compensation lawyer Going through the process of a worker's compensation claim can be stressful, frustrating and exhausting. The stress can often be compounded when the claim involves a psychological injury. We provide experienced and timely support and are available to answer any questions you have throughout the process. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/july/psych-workers-comp-tas/ Sun, 21 July 2024 00:00:00 We review a NSW Supreme Court decision to refuse the application made by a child sexual abuse survivor to set aside a deed of settlement in respect of a previously settled abuse compensation claim against Knox Grammar School. EXV (a pseudonym) made an application to set aside the original Deed of Settlement relying on significant changes in the law related to: a court’s ability to set aside earlier Deeds of Settlement if just and reasonable to do so; the lifting of time limits for child abuse compensation claims; and a defence known as the Ellis defence. Many survivors of child sexual abuse may have chosen to settle their claim for less than it’s worth because the law was not on their side. There has been a growing recognition that survivors of child abuse faced significant barriers, including legal barriers, that stopped them from receiving full and fair compensation for the harm that they suffered. To remedy this, in 2021, the NSW Government introduced new laws allowing a Deed of Settlement to be set aside in circumstances where it is just and reasonable to do so, allowing survivors to bring another claim. What is a Deed of Settlement? Deed of Settlement is a legal document that represents an agreement by two or more parties to finalise a legal dispute. Most deeds in personal injury cases (including abuse compensation cases) will include a clause where the defendant agrees to pay to the plaintiff a certain amount of money in return for the plaintiff releasing the defendant from any future claims. A Settlement Deed usually represents the end of legal proceedings for that particular case. Significant changes to NSW laws related to abuse compensation claims Since 2016, there have been several significant changes to the law aimed at putting survivors of child abuse into better positions to pursue compensation. Limitation periods (time limits to pursue a claim) were removed with respect to child abuse claims in 2016. The Ellis defence (see below) was removed in 2018. In 2021, provisions were introduced to allow courts to set aside prior Deeds of Settlement in abuse compensation claims, paving the way for abuse survivors to bring a further claim against the same defendant. NSW courts can set aside a Deed of Settlement in abuse claims if just and reasonable to do so In 2021, the NSW government introduced Part 1C of the Civil Liability Act 2002 (NSW), which allows NSW courts to set aside ‘affected agreements’, essentially making those agreements void where it is just and reasonable to do so. An ‘affected agreement’ is a settlement deed that prevented a person from bringing any further claim for child abuse where the original claim was settled prior to 2016. This means that survivors of child abuse who have previously settled their compensation claim in certain circumstances may be able to revisit the same claim against the same defendants a second time to seek full and fair compensation. Removal of limitation periods (time limits) in abuse compensation claims A limitation period is basically a timeframe a person has to bring a claim for compensation. For child abuse claims, the limitation period for claims prior to 2016 was generally three years. That meant a survivor of child abuse only had three years from the date of the abuse to commence legal proceedings against their abuser. It is now well understood that many survivors of child abuse will take years, if not decades, to feel comfortable to talk about the abuse that they suffered. Often, by the time a survivor was ready to bring a legal claim, the limitation period for that claim had long passed. What was the Ellis defence in abuse compensation claims? The Ellis defence prevented an abuse survivor from suing an unincorporated organisation. Entities like churches and schools were often unincorporated. This meant that survivors could not bring claims against those organisations for negligence but were limited to bringing claims against the individual perpetrators of the abuse. This often limited the sort of compensation they could seek as these defendants were often penniless and so it was rarely worthwhile bringing a claim for compensation against them. NSW case review – court denies application to set aside Deed of Settlement In May 2024, the Supreme Court of NSW handed down the first decision regarding an application to set aside the original Deed of Settlement: EXV v Uniting Church in Australia Property Trust (NSW) [2024] NSWSC 490 (“ EXV ”). Background In late 2006 or early 2007, EXV alleged that he had been sexually assaulted by a teacher, Mr Adrian Nisbett, while he was a student at Knox Grammar School back in the early 2000s. He was represented by a lawyer and a barrister. After mediation in 2008, EXV signed a Deed of Settlement finalising legal proceedings against the school due to the alleged abuse. EXV received $115,000 in return for releasing Knox Grammar School from all direct and vicarious liability in relation to the alleged abuse. In 2016, the Royal Commission into Institutional Responses to Child Sexual Abuse revealed that Knox Grammar School had been aware that Mr Nisbett had engaged in inappropriate behaviour prior to EXV’s allegations. The Royal Commission noted that the school had been aware of that behaviour but had not taken any significant action to protect its students. In 2022, EXV brought a new claim against the school, based on the same allegations as the original claim. Knox relied on the 2008 Deed of Settlement, and EXV brought an application to have the Deed set aside under the new 2021 legislation. Arguments brought by the abuse survivor to have the Deed of Settlement set aside EXV argued: that his claim had been affected by the limitation period, which was three years at the time of his original claim and which had expired by 2008 (almost 8 years after the alleged abuse); the Ellis defence as Knox Grammar School was an unincorporated organisation, and there was no proper defendant to sue at the time of the original claim; that his lawyers could not sign off that his original claim had reasonable prospects of success due to a lack of evidence; and that Knox Grammar School had evidence regarding Mr Nisbett’s inappropriate behaviour and had failed to disclose it. EXV also argued that other reasons to set aside the agreement included: the low sum of compensation he received as part of his settlement; the imbalance in the bargaining position between the parties; and the conduct of the school’s lawyers during the 2008 mediation. The court’s decision Justice Weinstein refused to set aside the 2008 Deed of Settlement, finding that it would not be just and reasonable to do so. In his reasoning, Weinstein J considered: the interpretation of Part 1C of the Civil Liability Act 2002 (NSW); the documentary and witness evidence of both parties; and whether the legal barriers that existed at the time played a material role in EXV’s decision to settle his claim. Justice Weinstein accepted that Part 1C was aimed at setting aside agreements that were affected by the limitation period issues and/or the Ellis defence where it is just and reasonable to do so. In this respect, his Honour did not accept that the inability of EXV’s lawyers to certify that the claim had reasonable prospects of success was a legal barrier for the purposes of Part 1C but did consider that it could be taken into account as a factor when deciding whether it was just and reasonable to set the deed aside. Justice Weinstein accepted that the plaintiff (EXV) held the onus of establishing the existence of legal barriers. In this case, there was some evidence that EXV’s lawyers were concerned about the limitation period. However, his Honour did not accept that the limitation period had a material effect on EXV’s decision to settle. Likewise, Weinstein J did not accept that the Ellis defence affected EXV’s decision to settle, given that there was no evidence that this was the case, and it was only raised in a cursory way. Instead, Weinstein J found that EXV had settled because he did not think that he had sufficient evidence against Knox Grammar School and because of his anxiousness to resolve his claim rather than have it litigated in court. His Honour accepted that the amount of compensation paid to EXV was modest and represented a significant compromise. Aside from that, his Honour did not accept that the conditions of the mediation in 2008 were harsh and did not accept that Knox Grammar School had any obligation to disclose evidence that it held back in 2008. In fact, EXV’s lawyers had advised EXV not to settle in 2008, which suggested that they still believed that further evidence could be unearthed and that the limitation period did not present a material barrier to the claim. Justice Weinstein did not consider the bargaining position of the parties to be significantly imbalanced, at least not unusually so. The imbalance was reduced by the fact that EXV had experienced lawyers representing his interests. What this means for child sexual abuse survivors This decision shows that in circumstances where a survivor has previously entered into a deed of settlement and is now wanting to bring a claim, they will need to carefully consider whether they can obtain evidence demonstrating that either the limitation period or the Ellis defence materially affected their decision to settle their proceedings. If this can be demonstrated, it will allow a court to determine that it is just and reasonable to set aside a previous abuse compensation settlement. Other matters that may be considered under the legislation will likely play a secondary role compared to the existence and material effect of a legal barrier. That being said, each case is decided on its facts, and in this case, other than the low settlement sum, the court did not find that other factors, such as the bargaining position of the parties or the conduct of the defendant’s legal representatives, assisted EXV’s application to have the Deed of Settlement set aside. Get help from an abuse lawyer We understand that for an abuse survivor, discussing the particular circumstances will be difficult, however, we believe it is important for survivors to know their rights and entitlements. If you’ve previously settled your abuse compensation claim but would like advice about any entitlement you may have to revisit that claim, please contact a member of our abuse law team. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: Child abuse claims - can they be thrown out of court? Abuse compensation due to negligence of sporting associations High Court grants leave to appeal child sexual abuse decision https://www.hallpayne.com.au/blog/rss/blog/2024/july/revisit-deed-of-settlement/ Sun, 14 July 2024 00:00:00 An equal remuneration order is an order that the Fair Work Commission (‘ FWC ’) is empowered to make to ensure equal remuneration (pay and other workplace entitlements) for all employees performing workplace duties and tasks of equal or comparable value, no matter what their gender. A party (for example, a worker or a union) can apply for an equal remuneration order, or the FWC can initiate a proceeding for one itself. This blog will discuss who is able to apply for an equal remuneration order (‘ ERO ’), and what the FWC must consider when deciding an application for an ERO. Background to equal remuneration orders Before 1973, it was standard for a Federal Award to nominate different rates of pay for men and women performing the same work. A woman’s rate would typically be set at roughly 85% of a man’s rate. This entrenched discrimination was rationalised based on a belief that women do not hold “breadwinner” responsibilities within a family, and thus women were not seen to be entitled to the ‘breadwinner component’ of a man’s remuneration. Since that time, such a distinction in rates of pay has been unlawful in recognition of the fact that a person’s gender does not necessarily determine their responsibilities as a provider for their family. In spite of significant steps to address the gender pay gap, it persists. Its continued existence is influenced by a number of contributing factors which together result in womens’ ordinary full-time remuneration being between 17% and 23% lower than men’s, depending on the method of calculation. One of those contributing factors is the historical ‘devaluation’ or ‘undervaluation’ of female-dominated professions. This factor has been recognised in the industrial relations sphere since at least the 1970s. In an effort to combat this, equal remuneration provisions were introduced into the federal industrial legislation in 1993, to allow the industrial umpire to make orders addressing pay equity. Equal remuneration orders under the Fair Work Act The Fair Work Act 2009 gave Fair Work Australia (as it was then known) the power to make equal remuneration orders to address these devaluations or undervaluations. Since 2012, that power has been held by the FWC. Unfortunately, in the 30 years since equal remuneration provisions were introduced in 1993, to 2023, there has only been one successful case (in the social and community services sector). This is largely because the requirements to allow an order to be made have been too technical and impractical. In 2022, the Albanese Government took steps to expand that power in the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 . The full effect of these recent amendments has yet to be realised. Who can make an application for an equal remuneration order? The FWC can make an equal remuneration order on its own initiative. Alternatively, the Sex Discrimination Commissioner or an employee who will be affected by an ERO or their union may make an application for an equal remuneration order. What does the Fair Work Commission look at when considering an equal remuneration order? When the FWC considers an application for an ERO, it must form an expert panel to decide the matter. They are required to take into account orders and determinations made by the Minimum Wage Panel (another type of expert panel of the FWC) in annual wage reviews and the reasons for those orders and determinations. They may also take into account comparisons within and between occupations and industries to establish whether the work has been undervalued on the basis of gender or whether the work has been historically undervalued on a gender basis. The FWC does not need to be convinced that the difference in pay is due to a discriminatory reason. They need only find that there is an undervaluation of work and that undervaluation is based on gender. The new amendments clarify that where the FWC undertakes a comparison with other occupations/industries, that comparison is not limited to similar work, and significantly does not need to be a comparison with an historically male dominated occupation/industry. If the FWC is satisfied that there is not equal remuneration for employees performing work of equal or comparable value, it must make an order for equal remuneration. What can an equal remuneration order do? If the FWC decides to make an ERO, it may only be to increase remuneration. It cannot make an order to reduce remuneration to provide pay parity. The FWC may choose to implement the order in stages if it thinks it is not feasible to introduce equal pay immediately at the commencement of the order. The FWC might, for example, implement this in response to an argument from an employer that it would be too burdensome to increase remuneration immediately. Contravening an equal remuneration order An employer who contravenes an equal remuneration order is vulnerable to a civil penalty. If an employer contravenes an ERO, an application can be made by an employee affected by the ERO, their union, or the Fair Work Ombudsman to the Federal Circuit and Family Court of Australia to enforce it. Equal remuneration orders cannot be made retrospectively A recent decision of the FWC has made it clear that equal remuneration orders can only be made in relation to current employees of an employer and cannot be retrospective. That is, it cannot order ‘backpay’. In Sabbatini v Peter Rowland Group Pty Ltd [2023] FWCFB 127 , the Expert Panel of the FWC heard an application from Ms Sabbatini who was a Chef de Partie at Peter Rowland Group, but her employment had ended before her equal remuneration order application. She was able to show the Panel that she was being paid significantly less than her full time Chef de Partie peers who were male. However, the Panel decided that, because she was no longer an employee of the Peter Rowland Group, she was not able to make an application for an equal remuneration order. The Panel was unable to make an order on its own initiative for the same reason. The Panel also found that the Fair Work Act did not give them the power to order her former employer to provide her with back pay. It found that EROs were designed to only apply ‘prospectively’ (that is, they may only affect payments made to an employee or a group of employees made after the date of the order) rather than retrospectively. Get help from an employment lawyer Despite significant headway in recent years in campaigns for equal pay for women, we are still some way off pay equality. If you and/or your colleagues believe your remuneration is not equal to your male counterparts, and that is due to gender, you should seek advice from your union or a lawyer. Hall Payne’s award-winning employment law team can assist you with any workplace issues or disputes, including those related to remuneration. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: Can my employer deduct money from my wages Underpayment of wages How to appeal a Fair Work Commission decision Bullying at work – your workplace rights Additional hours – what is reasonable? https://www.hallpayne.com.au/blog/rss/blog/2024/july/equal-remuneration-orders/ Sun, 07 July 2024 00:00:00 A new immigration Ministerial Direction (known as MI110) was signed on 7 June 2024. This direction includes amendments to the previous Ministerial Direction 99 (MI99) and is aimed at tightening the parameters for decision-makers regarding what factors should be given weight when considering Australian visa refusals or cancellations (as well as revoking mandatory cancellations under Section 501CA of the Migration Act ). Ministerial Direction 110 came into effect on 21 June 2024. Government says previous Ministerial Direction 99 required clarification and strengthening Ministerial Direction 99 (introduced in 2023) required those making decisions about visa refusals and cancellations to consider a person’s ties to Australia (for example, strength of family ties, duration in Australia, nature of the applicant) a primary consideration. Decision makers were to also consider other factors, including safety of the Australian community, family violence and criminal history, however, ties to Australia was a primary consideration. The Government said the Ministerial Direction 99 had been misinterpreted when it was revealed that the Administrative Appeals Tribunal (AAT) had reinstated the visas of people convicted of serious crimes, prioritising their “ties to Australia”. What led to the urgent immigration Ministerial Direction 110? In November 2023, the High Court of Australia decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor , resulted in the release of a number of people from immigration detention. Operation AEGIS, a joint AFP & Australian Border Force operation, was established to ensure the safety of the Australian public after the release of the immigration detainees into the community on bridging visas (albeit with strict conditions including ankle monitors and curfews etc) due to the High Court decision. In a media release on 3 June 2024, the Hon Andrew Giles MP (Minister for Immigration, Citizenship and Multicultural Affairs), announced that in the national interest, he had cancelled 30 visas of non-citizens who had “serious criminal histories”. He blamed the effectiveness of the previous MI99 in terms of its intended application which had allowed decisions by the AAT to reinstate visas for individuals with significant and serious criminal histories. He forecast that a new Ministerial Direction would be in place by the end of the week (early June 2024) and has been true to his word. What does Ministerial Direction 110 require of immigration decision-makers? The new MI110 makes it abundantly clear that in all decision making around refusing or cancelling a visa under s501 of the Migration Act , or to revoke the mandatory cancellation of a visa under s501CA, “The safety of the Australian Community is the highest priority of the Australian Government” . It reinforces the view that some conduct, such as family violence, even in situations where the non-citizen is not likely to pose a risk of any physical harm to the Australian community, is so serious that there may be no arguments or considerations which would justify a decision not to cancel or refuse a visa. Under the new direction, less weight is given to the length of time that the individual has been living in Australia and the family ties that they may have with Australian citizens and permanent residents who have a right to remain here indefinitely. A search of the decisions published by the AAT will reveal just how many refusal and cancellation decisions are reviewed by them each year. This new direction means the number of refusals and cancellations that the Department of Home Affairs will decide moving forward is likely to increase, putting more pressure on the already backlogged independent review body and its newly constituted replacement, the Administrative Review Tribunal (ART) due to commence prior to the end of 2024. Need help from a migration agent? If you find yourself in the difficult situation of receiving a visa refusal or cancellation based on your criminal history or character in general, it is imperative that you seek assistance from a qualified migration agent or migration lawyer.  We can ensure that you understand your options, any time limits that apply to your case and represent you in all communication with the Department of Home Affairs or the AAT including substantive submission for consideration.   Do not delay. Contact us for assistance immediately. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/july/visa-refusals-cancellations/ Mon, 01 July 2024 00:00:00 In November 2023, we represented a member of the United Workers Union (‘UWU’) in relation to a charge of driving across double unbroken lines to make a U-turn in New South Wales. The charge could have seen a penalty of three demerit points and a fine if convicted. On 15 November 2023, the Court dismissed the charge without recording a conviction, alternatively choosing to issue a conditional release order despite the UWU member pleading guilty. What is a conditional release order? A conditional release order, often referred to as a CRO, is a sentencing option available to the Court in NSW. It requires you to not commit any further offences for a period of time set out in the CRO. Conditional release orders came into effect in 2018, effectively replacing good behaviour bonds. A CRO can be imposed with a conviction or without a conviction. Background that led to the traffic violation In August 2023, the UWU member, while driving their car, completed a “U-turn” across double lines. The maximum penalty for this offence included three demerit points and fine options. An accrual of three demerit points by our client at this time would have resulted in them losing their licence for several months. A loss of licence would have had terrible consequences for our client, including the fact that our client requires their licence for their job. Our client also transported their young child to appointments in areas where it was difficult to rely on public transport. Our defence strategy It was our case that the Court should: dismiss the charge under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 ( Sentencing Act ); or, if the Court did not accept this submission; discharge our client under section 10(1)(b) of the Sentencing Act under a conditional release order. Meaning of dismissing This is when the Court makes an order to dismiss a proven charge without imposing a penalty or recording a conviction. Meaning of discharging This is when the Court discharges a person under a conditional release order without recording a conviction or imposing any other penalty. In preparing a defence, we ensured that our client had strong character references. This included a reference from their employer which highlighted: our client’s work ethic; the importance of having a licence for their job; and their remorse. Remorse was also highlighted in a reference from our client’s partner together with detailing how our client needed a licence to drive their child to appointments. Additionally, we ensured that our client had completed the traffic offender’s intervention program . In relation to the driving offence, we relied on the following factors: the offence was a momentary lapse in judgment; the offence was not in “peak hour” traffic; our client thought that the road ahead was closed and was stressed about being late to work; our client pleaded guilty at the first available opportunity; our client is of good character; our client was very remorseful; our client needed a licence to work; and our client needed a licence to undertake important carer responsibilities. Court orders conditional release order, and no conviction recorded The Court gave considerable weight to our client’s character references. In particular, the Court noted our client’s strong work ethic, the need for a licence (to work and be a carer) and that they were of good character. When weighed against the harsh impact of a conviction, the Court was persuaded by these factors. Accordingly, the Court discharged our client under a conditional release order meaning our client avoided conviction and kept their licence without penalty. Given the Magistrate, at the outset, observed the seriousness of the offence, this was a significant win for our client who was delighted with the outcome. Conclusion This case shows that workers who are charged after making a mistake on our roads can still pursue a lawful avenue to potentially avoid a career-threatening penalty. When defending a traffic charge and/or seeking to avoid a conviction or penalty, a carefully considered legal strategy is vital to ensure the Court is persuaded that this is the appropriate outcome. If you’ve been charged with traffic offences that you wish to contest or other criminal offences, you should seek advice early from a lawyer experienced in criminal and traffic law . Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/june/traffic-law-win-with-no-conviction-recorded/ Sun, 30 June 2024 00:00:00 Hall Payne Lawyers has secured key union leaders, and expert industrial lawyers, Mark Diamond and Sunil Kemppi, to join its leadership team. Mark Diamond joins Hall Payne Lawyers industrial and employment law team Mark Diamond, as the recent RTBU National Secretary, has been a central driver of the modernisation, activism and industrial successes of the RTBU in recent years. Mark’s strategic leadership skills and experience running aggressive, litigious and complex industrial campaign’s will be of immense value to Hall Payne’s Union clients across Australia.    Prior to being National Secretary, Mark was the RTBU’s National Lawyer, where he worked closely with officials, organisers, delegates and members across all Branches and Divisions. His roles included running high-level and precedent-setting legal cases for members, providing strategic and legal advice on enterprise bargaining and industrial strategies, coordinating campaigns against wage theft at labour hire companies, and leading the Union’s response in nationally significant industrial and legal disputes. Mark’s appointment significantly enhances the firm’s already significant capabilities in industrial relations and employment law. His deep understanding of organising and enterprise bargaining, and his strategic acumen will reinforce the firm’s reputation as one of the pre-eminent law firms representing the Australian trade union movement. “Mark is an exceptional leader in the union movement. The experience he brings from the RTBU, a union at the forefront of industrial activism in Australia, will be of immense value to unions in achieving success in their industrial campaigns,” said HPL Director, Joe Kennedy. Mark has joined Hall Payne Lawyers as a Senior Associate. Sunil Kemppi joins Hall Payne Lawyers industrial and employment law team Sunil Kemppi has a deserved reputation as one of Australia’s best industrial advocates. As the ACTU’s Senior Legal and Industrial Officer, Sunil provided legal and strategic advice to the ACTU and the broader union movement on issues critical to Australian workers. Sunil played a key legal role for the ACTU during the policy development and consultations for the Closing Loopholes legislation . Sunil also served in a senior role at CPSU, where he provided advice and representation in a variety of significant cases. Sunil's deep understanding of the strategic environment in which unions operate, the regulatory scheme they are subject to, and his commitment to protecting workers’ rights make him an exceptional fit for the firm. His expertise will greatly benefit clients and reinforce the firm’s commitment to fighting for the rights of everyday Australians. “Sunil’s extensive experience and dedication to the union movement will be invaluable to Hall Payne and its clients. Sunil’s expertise will further Hall Payne’s mission to be the leading labour law firm in Australia, providing exceptional strategic support for Australian Unions to improve the working conditions of their members, and all Australian workers ”, says HPL Director, Luke Tiley. Sunil has joined Hall Payne Lawyers as a Senior Associate. Hall Payne Lawyers commitment to the Union movement Joe added, “The addition of Sunil and Mark show Hall Payne’s continued growth of the firm's industrial team in NSW and nationally. We are very excited to have two exceptional lawyers and trade unionists join our national team industrial practice where we have no doubt they will make an immediate and positive impact for our clients.” https://www.hallpayne.com.au/blog/rss/blog/2024/june/key-staff-appointments-june-2024/ Thu, 27 June 2024 00:00:00 There are different compensation schemes in Queensland depending on whether an injury occurred due to a workplace accident or as a result of a motor vehicle accident. Sometimes, a worker may be injured in a road accident while travelling to or from work. This poses the question: “Is it a workers’ compensation claim or a motor vehicle accident (CTP) claim, or both?” In this blog, we explore what are commonly termed journey claims and what compensation is available to the injured worker. Eligibility for workers’ compensation and motor vehicle accident compensation In Queensland, the statutory compensation schemes for workers’ compensation and motor vehicle accident CTP compensation operate very differently. If you are injured in the course of your employment, you may be entitled to receive workers’ compensation. Workers’ compensation in Queensland operates as a no-fault scheme, meaning that an injured worker is entitled to compensation regardless of who caused the workplace accident. To be entitled to compensation for a motor vehicle accident, however, it must be shown that the accident was caused by the negligence of another driver or party. If you are injured in a motor vehicle accident in Queensland where the other driver is at fault, you will be entitled to bring a compensation claim against the at-fault driver’s Compulsory Third Party (CTP) insurer. If the at-fault driver’s insurer cannot be identified, you may be entitled to bring a claim for compensation against the governmental body known as the Nominal Defendant under the Motor Accident Insurance Act 1994 (Qld).  Worker’s compensation journey claims and motor vehicle accident compensation claims If you have been injured in a motor vehicle accident while travelling to or from your workplace, you may be entitled to claim compensation from WorkCover Queensland or the relevant self-insurer in what is known as a journey claim. Furthermore, if the other driver or party was at-fault for the accident on your way to or from your workplace, you may also be entitled to claim compensation under the motor vehicle accident CTP scheme, in addition to your worker’s compensation entitlements. GET ADVICE FROM A PERSONAL COMPENSATION LAWYER:  1800 659 114 What is a workers’ compensation journey claim? A journey claim extends the traditional definition of “in the course of employment” to provide compensation for injuries which occurred during work-related travel, including travel between the worker’s home and place of employment outside of work hours.  The Act provides that, if you are a worker, you may be entitled to make a journey claim if you have been injured in a motor vehicle accident while: travelling from your home to your place of employment; travelling from your place of employment to your home; travelling from your home or place of employment to a trade, technical or training school (which your employer expects you to attend); travelling for work-related reasons, for example, for a work conference or meeting; and/or travelling to and from medical treatments or rehabilitation which is part of an existing workers’ compensation claim. Compensation entitlements for a workers’ compensation journey claim If your workers’ compensation journey claim is accepted, you may be entitled to compensation for: Weekly payments for loss of wages; medical and rehabilitation expenses; reimbursement of travel expenses related to medical treatment associated with the accident; lump sum compensation for permanent impairment; and paid care or assistance required in your recovery. Common reasons for a rejected workers’ compensation journey claim While journey claims provide compensation for a wide variety of work-related journeys, there are important limitations to be aware of. A journey claim will often be rejected if there has been a substantial delay or deviation from the worker’s usual journey. For example, if you visited the shops on your way home from work, this could be considered a substantial deviation from your regular journey, and therefore a journey claim would most likely not be accepted. A journey claim will also often be rejected where the worker broke a law while driving. For example, if dangerously operating the vehicle was a significant contributing factor to the accident occurring, a journey claim will most likely be rejected. If you are ineligible to make a journey claim with WorkCover Queensland or the self-insurer but were injured in a motor vehicle accident where the other driver was at fault, you are still entitled to compensation under the Motor Accident Insurance Act 1994 (Qld). If this is the case, one of our experienced personal compensation lawyers can assist you with navigating the process of motor vehicle accident claims. Time limits for workers’ compensation claims in Queensland It is important to be aware of the strict time limits for lodging a claim for workers’ compensation claim, as a failure to comply with these timeframes could result in the loss of your right to claim. If you intend to lodge a journey claim with WorkCover Queensland or a self-insurer, you will generally have 6 months from the date of injury to apply. A failure to comply with these timeframes may result in the loss of your right to claim compensation, so it is important to seek legal advice as soon as possible to ensure that your entitlements to compensation are protected. GET ADVICE FROM A PERSONAL COMPENSATION LAWYER:  1800 659 114 Compensation entitlements for a motor vehicle accident CTP claim If your motor vehicle accident CTP claim is successful, you may be entitled to compensation for: pain, suffering and loss of life enjoyment; past and future loss of earnings and superannuation contributions; past and future hospital and medical expenses; rehabilitation expenses; out-of-pocket expenses, including medications, travel and equipment; and care provided to you, either by family and friends or by professional services. Time limits for motor vehicle accident CTP claims in Queensland As with workers’ compensation journey claims, a failure to comply with the time limits on lodging a notice of claim for compensation under the Motor Accident Insurance Act 1994 (Qld) could result in the loss of your right to claim for compensation.  In Queensland, you must lodge a notice of claim against the ‘at fault’ party’s CTP insurer within 9 months of the motor vehicle accident or, if your symptoms of injury were not immediately apparent from the first appearance of symptoms. If you have consulted a lawyer regarding the motor vehicle accident, the claim must be lodged within 1 month of this consultation. If your claim is to be brought against the Nominal Defendant, you generally have 3 months from the date of the motor vehicle accident to lodge your claim for compensation. If a notice of a claim is not given within the time limit, the obligation to give the notice continues, and a reasonable excuse for the delay must be given in the notice or by separate notice to the CTP insurer. But, if a motor vehicle cannot be identified and the notice is not given to the Nominal Defendant within 9 months after the motor vehicle accident, the claim against the Nominal Defendant is barred.  For all other claims (that is, where the at-fault vehicle can be identified) the claim must be commenced within 3 years from the date on which the cause of action arose. Time limits are extremely complex. It is important to seek legal advice as soon as possible to ensure that your entitlements to compensation are protected. Get help from a workers’ compensation/personal compensation lawyer At Hall Payne Lawyers, we understand that suffering a personal injury can be extremely stressful and claiming workers’ compensation or motor vehicle accident compensation can be a complicated process. If you are unsure whether you have a journey claim or you have been injured in a workplace accident or a motor vehicle accident, one of our experienced personal compensation lawyers can help to ensure you receive the compensation you are entitled to. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/june/workers-comp-journey-claims-qld/ Sun, 23 June 2024 00:00:00 In February 2024, a Western Australia teacher, Nicholas Visser, was sentenced to four years and 6 months in prison for exploiting his power and sexually abusing a teenage student. The distressing incident exposes the dark reality of individuals entrusted with the well-being and education of students. This blog explores the impact of child sexual abuse on victims and the compensation avenues available. The Nicholas Visser child sexual abuse case At the time of offending, Nicholas Visser was a 32-year-old teacher. He initially breached code of conduct for teachers by contacting the teenage girl through the social media app Snapchat. This case was reported in a recent ABC News article: “WA teacher Nicholas Visser jailed for sexual abuse of teenage girl”. Over the summer holidays, Visser escalated his misconduct by sending explicit photos and videos of himself to the student. The abuse reached its horrifying climax when he assaulted her on school grounds after the term resumed. This illegal and reprehensible conduct persisted for approximately nine months. Despite denying all allegations against him, Visser was found guilty by a District Court jury in late 2023 on 14 criminal charges. The impact of exploitation of power and abuse in schools Exploitation of power and abuse by those in positions of authority, such as teachers, causes lasting harm to the survivors of abuse. The case of Nicholas Visser underscores the abuse of authority and power dynamics within educational settings. Visser, in his capacity as a teacher, breached professional boundaries and abused his position of trust and authority to initiate contact with the student. He engaged in inappropriate behaviour and ultimately perpetrated acts of sexual abuse. This exploitation of power illustrates the profound impact such misconduct can have on victims and the broader implications of institutional accountability and safeguarding measures. The devastating consequences of a lack of institutional accountability were brought into public view recently with revelations of historical child sexual abuse in the Victorian state school system. We wrote about this in our earlier blog, “Systemic failures in preventing abuse in Victorian schools” . Damages and compensation available to survivors of sexual abuse in schools Survivors of abuse, including instances like sexual misconduct by a teacher, are encouraged to pursue compensation claims. In evaluating the compensation amount awarded to such survivors, especially in cases where individuals in positions of authority like teachers exploit their power, various factors are considered. 1.     Physical and psychological harm The extent of physical and psychological harm suffered by the survivors of child sexual abuse is a crucial factor in determining damages compensation. This includes any physical injuries sustained as result of the abuse, as well as the emotional and psychological trauma experienced by the victim. 2.     Pain and suffering Compensation may be awarded by survivors of child sexual abuse for the pain and suffering endured as a result of the abuse. The duration and intensity of the suffering, as well as its impact on the victim’s quality of life, are taken into account when determining the appropriate compensation amount. 3.     Loss of enjoyment of life Survivors of abuse may experience a loss of enjoyment of life due to the lasting effects of the trauma. Compensation may be awarded to acknowledge and mitigate this loss. 4.     Medical and therapy expenses Survivors of abuse often require medical treatment and therapy to address physical injuries, emotional trauma, and mental health issues resulting from the abuse. Compensation may be provided to cover the cost of past and future medical expenses. 5.     Loss of income and earning capacity In cases where the abuse has resulted in physical and psychological impairments that prevent the survivor from working or pursuing employment, compensation may be awarded for loss of income and earning capacity. This includes both past and future losses. Overall, the compensation amount awarded to a survivor of abuse reflects the severity of the harm suffered, the impact on the victim’s life, and the need for justice and accountability. Courts strive to ensure that survivors of child sexual abuse receive fair and adequate compensation to help them heal from the trauma and rebuild their lives in the aftermath of abuse. Get help from an abuse compensation lawyer A Hall Payne Lawyers, we are committed to advocating for the rights of personal injury and institutional abuse victims. Our team of legal experts specialises in these areas and has a proven track record of securing favorable outcomes for our clients. If you or a loved one is a survivor of abuse in a school (or other institution), don’t navigate the legal process alone. Contact HPL for a confidential and free consultation. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/june/sexual-abuse-in-schools/ Sat, 15 June 2024 00:00:00 If charged with a criminal offence in Queensland , prior to your matter going to trial, you may seek bail. Bail is a promise or an undertaking that you will return to court on a set date and abide by certain conditions. Under the Bail Act 1980 (Qld) (the Bail Act ), there are two types of bail in Queensland: Watchhouse bail; and Court bail. What is watchhouse bail? Watchhouse bail is granted by a police officer. This happens after a person has been arrested and taken to a police watchhouse. If you are given bail at the watchhouse, you are required to sign a bail undertaking which usually provides a number of conditions you must abide by. If you are not granted watchhouse bail by a police officer, they are required to take you to court as soon as reasonably practicable, where you can apply to the court for bail. What is court bail? If you are not granted watchhouse bail, you are able to apply to the court for bail. If the court grants you bail, once you sign the bail undertaking, the police are required to release you. If a court grants you bail, you cannot leave the courthouse until you have signed a bail undertaking. When considering whether to grant bail to a person, a Judge or a Magistrate will look at: the nature and seriousness of the offending; the character, antecedents, associations, home environment, employment and the person’s background; previous bail history; the strength of the evidence against the person. If the prosecutor is able to show the court that there is an unacceptable risk of the person committing further offences or failing to appear at the next court date, the court will likely refuse bail. Some defendants will have to ‘show cause’ as to why they should be granted bail and not remain in custody. Under section 16(3) of the Bail Act, the following can place a person in a show cause position, including but not limited to: if they are charged with a serious offence whilst already on bail for a serious offence; if there is an allegation that a person used, or threatened to use, a firearm, weapon or explosive substance when committing an offence; or if they are charged with an offence against the Bail Act. Bail conditions that can be imposed The court, or police officer, when granting a person bail, may impose any conditions that they think are necessary to ensure that the person: will appear in court on a set date; will not commit a criminal offence while on bail; will not endanger the safety or welfare of others; and won’t interfere with witnesses or obstruct the course of justice. Two conditions that are always imposed on a person’s bail are: attending court on a set date; and not breaking the law. Other conditions of bail often include, but are not limited to: attending a local police station on set days and times; residing at a certain address; wearing a tracking device; and a curfew. When can bail be refused? Section 16 of the Bail Act permits the court or a police officer to refuse bail if they are satisfied that: that there is an unacceptable risk that the defendant if released on bail— (i) would fail to appear and surrender into custody; or (ii) would while released on bail— commit an offence; or endanger the safety or welfare of a person who is claimed to be a victim of the offence with which the defendant is charged or anyone else’s safety or welfare; or interfere with witnesses or otherwise obstruct the course of justice, whether for the defendant or anyone else; or that the defendant should remain in custody for the defendant’s own protection. Breaching bail conditions A breach of any bail condition/s may result in a warrant being issued for the person’s arrest. If a person is charged with breaching his or her bail condition/s, it may result in a charge and conviction for breaching the condition/s. Varying bail conditions A person may apply to vary their bail conditions, but they will need to have grounds to do so. Examples of reasons to vary bail conditions include, but are not limited to: changing of residential address; changing the police station at which the person is to report; needing to alter the curfew hours if a person’s working hours have changed. Most often approval to vary bail conditions can be sought from the Office in Charge of the relevant police station or the Office of the Director of Public Prosecutions without the need to return to court to seek the variation. Get help from a criminal lawyer You can use a criminal lawyer for your court bail application. They will be able to clearly articulate to the court why bail should be granted and negotiate appropriate bail conditions on your behalf. Most often, a person is only allowed to make one bail application unless there is a material change in circumstances. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: Criminal charges in Queensland; what happens at my first court date? No conviction recorded – options for keeping your criminal record clean Detained for police questioning (Qld) https://www.hallpayne.com.au/blog/rss/blog/2024/june/bail-in-queensland/ Sun, 09 June 2024 00:00:00 It is compulsory for all employers in NSW, unless they are considered an “exempt employer”, to have worker's compensation insurance. If the business does not hold a policy, it may be fined or penalized up to $55,000.00 and/or up to six months imprisonment. Exempt employers still have responsibilities to their employees to provide assistance with injury management and return to work. So, what happens if your employer is not “exempt” from holding worker's compensation insurance and you are injured at work? Workers can claim workers compensation in NSW even if their employer is not insured If you suffer a work-related injury or illness in NSW and your employer does not have worker's compensation insurance and is not “exempt” from holding such insurance, you CAN still make a claim for worker's compensation benefits. If you are not sure about your employer’s insurance status, you can contact the Independent Review Office on 13 94 76 for further assistance in establishing whether or not your employer was holding a valid policy at the time of your injury. If your employer does not have worker's compensation insurance and is not “exempt”, a claim can be made against the Uninsured Liability Scheme (ULS). What is called the Nominal Insurer then becomes the insurer liable for claims against the uninsured employer. These claims are managed by iCare, the NSW Government agency that provides care services to people with injuries under various compensation schemes, including worker's compensation. How do I lodge a workers' compensation claim if my employer is uninsured? As with all worker's compensation claims, if you have suffered a work-related injury or illness, you must notify your employer immediately. The NSW Workers Compensation Scheme requires that an injury is reported within 48 hours of an incident. If your report is not made promptly, this may result in delays in receiving compensation entitlements or even a denial (rejection) of your claim. Once you have notified your employer of the workplace incident, you will need to complete a Workers Injury Claim Form, which you can download here . You will also need to consult with your GP, who will assess your injury and recommend treatment. At this visit, you will need to ask your GP to issue what is known as a Certificate of Capacity. This certificate will outline: the nature of your injury or illness; your capacity for work; and any treatment you require. Once these documents are completed, the Workers Compensation Claim Form and Certificate of Capacity can be lodged with the NSW Nominal Insurer, iCare. Contact can be made with EML, iCare’s appointed claims partner on 13 77 22 . If you have any questions or concerns when lodging your claim, we can assist you through the process, from helping you complete your claim form to contacting iCare on your behalf to lodge your claim. GET ADVICE FROM A WORKER'S COMPENSATION LAWYER:  1800 659 114 What happens once my NSW worker's compensation claim is lodged with the NSW Nominal Insurer? Investigations will then be conducted to seek further information and/or determine liability. These investigations are to determine: the actual employer who employed you; whether the employer who employed you was actually uninsured; whether you are a worker as defined by the Workplace Injury Management and Workers Compensation Act 1998 ; whether the injury for which you are claiming compensation occurred while you were working for the nominated employer and your employment was a substantial contributing factor to your injury. Once these investigations have been completed, the insurer will make a decision as to whether they accept or deny your claim. What are my worker's compensation entitlements if my employer is uninsured? Lodging a claim using the uninsured liability scheme does not alter any entitlements you may have, and your claim will be treated the same as all other injured workers, with the same entitlements. If your claim is accepted, the following benefits will be available to you: weekly payments for wages lost ; medical treatment and reimbursement of out-of-pocket expenses ; lump sum benefits for permanent impairment (if applicable). The Personal Injury Commission, whose role is to resolve disputes between injured workers, employers and insurers in NSW, has the jurisdiction to determine claims made against the Uninsured Liability provisions. If your worker's compensation claim is rejected, you can lodge an appeal or dispute for compensation and medical benefits. You can read more detail about rejected claims in our earlier blog, “Help! My NSW worker’s compensation claim has been denied”. Get help from a NSW worker's compensation lawyer The worker's compensation process involving uninsured employers can be complex. Although lodging your claim, in the first instance, can seem quite straightforward, there can be hurdles to overcome with regard to ensuring you receive ALL your entitlements. It is highly recommended that you seek advice from personal injury expert lawyers to assist you. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/june/work-injury-nsw-uninsured-employer/ Sun, 02 June 2024 00:00:00 Absent specific circumstances being established, employers have no right to control or regulate their employees’ conduct outside of work hours. However, if an employee’s out of work conduct has a significant and adverse effect on their employment or the workplace, then an employer may be able to take disciplinary action, which may include termination of employment. In this blog, we look at circumstances where an employee’s ‘out of hours conduct’ can constitute grounds for disciplinary action, including termination of employment. When can an employee be terminated due to out of work hours conduct? For an employer to have a valid reason to terminate an employee, the out of hours conduct must be sufficiently connected to the employee’s employment. An employee may be validly terminated because of their out of hours conduct if: when viewed objectively, the conduct is likely to cause serious damage to their relationship with their employer; the conduct damages their employer’s interests; or the conduct is incompatible with their duties as an employee. An employer cannot simply assert that an employee’s out of work conduct has, or potentially has, damaged the employment relationship or their reputation. The employer’s subjective opinion is irrelevant. The employee’s conduct has to be of such seriousness, objectively viewed, that it indicates they have rejected or are unable (or unwilling) to fulfil their obligations under their employment contract. Some factors that are taken into consideration in determining whether an employee’s out of hours conduct has a relevant connection with their employment include the following: The nature of the out of hours conduct and what it involved; Where and when the out of hours conduct occurred; The circumstances in which the out of hours conduct occurred; The nature of the employment; The role and duties of the employee; The principal purpose of the employee’s employment; The nature of the employer’s business; Express and implied terms of the contract of employment; The effect of the conduct on the employer’s business; and The effect of the conduct on other employees of the employer. Examples of out of work hours conduct that could lead to termination of employment There have been a number of cases before the Courts and Tribunals where an employee has been held to have been validly terminated because of their out of hours conduct. A few examples where the Fair Work Commission has found a sufficient connection between an employee’s conduct outside of work and their employment include: an employee sending offensive material, such as pornography, to work colleagues in breach of their employer’s policies; an employee bullies or sexually harasses a work colleague, including at a work function or on social media; an employee’s social media activity damages the employment relationship with their employer or the employer’s interest, such as disclosing confidential information or damaging the employer’s relationship with its clients or customers; an employee’s conduct breaches a term of their employment contract (expressed or implied). This includes the implied duty of fidelity and good faith, which bestows an obligation of honest and faithful service to their employer (e.g. borrowing money from a client and not paying it back or obtaining secondary employment without the employer’s knowledge or consent); an employee’s conduct occurs in a facility (such as a lunch or break room) or accommodation provided by the employer or by a third party under an arrangement with the employer; an employee engages in criminal conduct and is unable to attend work because they have been convicted and imprisoned for a serious offence; where a sanction has been imposed on an employee because of their conduct, which prevents them from carrying out their duties. For example, a truck or bus driver loses their driver’s license and is legally unable to drive a motor vehicle and who cannot reasonably be employed on alternative duties; an employee engages in conduct that is inconsistent with the duties or obligations they were employed to perform (see the case example below). Case example – train driver terminated for drink driving conviction out of work hours In Sydney Trains v Andrew Bobrenitsky [2022] FWCFB 32 , Mr Bobrenitsky was employed as a train driver with Sydney Trains. During a day off work, Mr Bobrenitsky was arrested and charged with driving a motor vehicle with a blood alcohol concentration 4 times over the legal limit. Less than 24 hours after his arrest, Mr Bobrenitsky attended work. Mr Bobrenitsky was later convicted for having a high-range prescribed content of alcohol ( PCA ) whilst driving (in the incident, which occurred outside work hours) and was sentenced to 2 years of community service and had his licence suspended for 6 months. Mr Bobrenitsky’s employment was subsequently terminated, as Sydney Trains determined that his out of hours conduct constituted serious misconduct and was in breach of their policies and procedures. Mr Bobrenitsky lodged an unfair dismissal claim . The Fair Work Commission decision At first instance, Deputy President Cross of the Fair Work Commission found that Mr Bobrenitsky’s dismissal was harsh, unjust and unreasonable. The decision was made on the basis that it related to “ out of work conduct that could never constitute a valid reason for termination ”, as a drivers’ licence was not required for Mr Bobrenitsky to perform the inherent requirements of his role as a train driver. Matter appealed to the Full Bench On appeal, however, the Full Bench overturned this decision and held that Mr Bobrenitsky had not been unfairly dismissed, as the dismissal related to a driving offence that was connected to his employment. After considering the inherent requirements of Mr Bobrenitsky’s position as a train driver, the Full Bench found that in his role as a train driver, Mr Bobrenitsky had a duty to ensure that he did not have any alcohol in his system and was able to assess his own ability to drive a train safely. The Full Bench highlighted that Mr Bobrenitsky attended work less than 24 hours after he had returned a positive blood alcohol reading with a high-range PCA. The Full Bench found that Mr Bobrenitsky failed to take any steps to determine whether there was any residual alcohol in his system when he arrived at work and/or self-report that he could not drive the train safely. This was in circumstances where Mr Bobrenitsky had attended work with alcohol in his system on two previous occasions, which was only discovered because he had been randomly tested at work. Key takeaways Whilst an employer of course does not have an absolute right to control its employees’ conduct outside of work, some out of work conduct can impact an employee’s employment. Whether this is the case will depend on all of the relevant circumstances in a particular matter. This will include, for example, the relevant employment contract and the employer’s policies and procedures. If you find yourself in a situation where your out of hours conduct is in question, it is critical to obtain advice as soon as possible, so you are aware of your rights and obligations and minimise the risk of out of work conduct adversely impacting your employment. Get help with employment issues If you’re experiencing any issues with your employment, including issues related to out of work conduct, you should contact your union or one of our award-winning employment lawyers for advice and assistance. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/may/impact-of-outside-work-conduct/ Sun, 26 May 2024 00:00:00 If you’re in a dispute that may end up in legal proceedings, contemporaneous file notes can be used as documentary evidence to corroborate direct oral evidence of a fact. They can be extremely useful in a variety of different situations, including disciplinary, bullying or discrimination issues in the workplace, as they are generally regarded as a more accurate record of events than oral evidence given months or years after the events. Contemporaneous notes can be used across many areas of legal dispute where witness evidence is important, including but not limited to: criminal law ; employment law ; civil litigation; and injury compensation matters (eg, worker’s compensation, motor vehicle accidents etc.). In our experience, where there is conflicting witness evidence, and one witness's account is corroborated by a contemporaneous note, that evidence is more likely to be accepted by the Court/Commission/Tribunal. What is a contemporaneous note? A contemporaneous note is a written piece of evidence which relates to the facts of a conversation, observation or interaction. It is generally a note taken by a witness during or as soon as practicable after the conversation, observation or interaction has taken place. Keeping such notes can be beneficial down the track if litigation is commenced, as it could be used by a Court, Tribunal or the Fair Work Commission as evidence to substantiate a particular claim. It can also be used to serve as a reminder of an interaction that occurred, which might be useful, for example, when lodging a formal complaint about those matters. Although often in written note form, a verbal record (perhaps using a voice app on a mobile phone) or a notes app on an electronic device can also be used as contemporaneous notes. This is on the basis that the note is not later amended once recorded. What does the legislation say about contemporaneous notes?   Legislation exists at a state and Commonwealth level in regard to contemporaneous notes being used as evidence in litigation. In Queensland, section 92 (which relates to civil proceedings) of the Evidence Act 1977 (Qld) (the Evidence Act ) provides that where direct oral evidence of a fact would be admissible, any statement contained in a document and tending to establish that fact will be admissible on certain conditions. Those conditions are that: the person who made the statement had personal knowledge of the matters dealt with in the statement and is called as a witness; or the document must have been recorded in the course of an undertaking from information supplied by a person who had, or may reasonably be supposed to have had personal knowledge of the matter. This is different in criminal proceedings where s 93 of the Evidence Act provides that direct oral evidence of a fact would be admissible. Any statement contained in a document and tending to establish that fact shall be admissible where: the document is or forms part of a record relating to any trade or business made by persons who had personal knowledge of the matters; and the person who supplied the information recorded in the statement: is dead, or unfit by reason of the person’s bodily or mental condition to attend as a witness; is out of state and it is not reasonably practical for their attendance; cannot with reasonable diligence be found or identified; cannot reasonably be supposed to have any recollection of the matters dealt within the information the person supplied. In the Commonwealth legislation, the Evidence Act 1995 (Cth), ss 55 and 56 provide that relevant evidence, such as a contemporaneous file note, is admissible if it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. This means, there is a requirement of a logical connection between the evidence provided and the fact in issue. A ‘fact in issue’ is a fact that fundamentally affects the dispute that is before the Court. Contemporaneous notes in the Fair Work Commission and QCAT With matters in the Fair Work Commission (the Commission ), section 591 of the Fair Work Act 2009 (Cth) provides that the Commission is not bound by the rules of evidence and procedure. In our experience, this means that contemporaneous notes will almost always be admitted, provided they are of relevance to the issues that arise in the particular case. The same applies to the Queensland Civil and Administrative Tribunal ( QCAT ). QCAT is not bound by the rules of evidence under s 28(3)(b), and it may inform itself in any way it considers appropriate, including giving weight to contemporaneous notes. Different states generally have similar rules, and it is important to check the relevant legislation for each state in state-based litigation. What should a contemporaneous note contain, and how should you keep them? If you are taking a note of a conversation you’ve had, an interaction or an observation you’ve made, there are some vital things to include in that note. Those include, but are not limited to: date, time and location of the particular event; who was in attendance; what was said – verbatim if possible; what was observed; and the date and time the note was taken. In employment law disputes, if you’ve had a conversation with your boss or colleague, it can be beneficial to follow up that conversation with an email confirming what was discussed. This also creates a contemporaneous note in the process. Using electronic means of note-taking, such as emails, text messages, instant messages or using a notes application, will provide details of the metadata (e.g., electronic date and time stamping). This will show a Court or Tribunal exactly when a note was created and that it has not been modified since. Get legal help If you’re involved in a dispute that is either in the Court system or heading that way, seeking legal advice early is critical to the success of your case. At Hall Payne, we can assist with a variety of disputes and have experienced lawyers in employment law, injury compensation law, TPD and disability insurance law and criminal law. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/may/contemporaneous-notes/ Sun, 19 May 2024 00:00:00 In criminal law matters , there are two drug types of drug diversion: Court ordered drug diversion; and Police drug diversion. Queensland Courts can order drug diversion as a penalty, with the primary purpose of rehabilitation. The Queensland Police Service ( Police ) may also offer drug diversion to help people address their drug use and associated offending behaviour. Court ordered Drug and Alcohol Diversion Programs There are two Drug and Alcohol Diversion programs available through the Courts: Drug and Alcohol Assessment Referral Program (DAAR) – available to adults only. Illicit Drugs Court Diversion Program (CDP) – available to adults and young offenders. The program provides people who have been charged with minor drug related offences, education and information about the harmful use of drugs and/or alcohol use. Eligibility for Court ordered drug diversion To determine a person’s eligibility for court ordered drug diversion, you must complete a Referral Form . In that form, you must provide your details and complete the eligibility questions. To be eligible for court ordered drug diversion in Queensland, you must plead guilty to one or more of the following offences under the Drugs Misuse Act 1986 (Qld) ( DM Act ): s 9 – possessing dangerous drugs, with a quantity less than the quantity listed in Schedule 1 of the Penalties and Sentences Regulation 2015 (Qld) ; s 10(1) – possessing things; s 10(2) – possessing utensils; s 10(4A) – failing to dispose of a syringe or needle; s 10(4) – failing to take reasonable care. A person is ineligible for drug diversion if they have had two previous diversion sessions by either the court or the police. Conditions applied to Court ordered drug diversion If a Magistrate orders a person to complete drug diversion, they will also make an order for a good behaviour bond. A good behaviour bond allows a person to remain in the community on the condition that they will be of good behaviour for the period of the order. There is a recognisance attached to a good behaviour bond which is a sum of money and must be paid by the offender in the event that they commit another offence whilst the good behaviour bond is imposed or they fail to comply with the conditions attached to the order. There is a condition for offenders to complete the drug diversion session within a set period of time, for example, three months. Additional conditions include that you attend the assessment and education session on time, participate in a satisfactory manner and not attend under the influence of drugs and/or alcohol. If a person completes the drug diversion and does not commit another offence in the set period ordered by the Magistrate, then often no conviction will be recorded , and the matter will be finalised. If a person either commits another offence whilst subject to the order, or they fail to comply with the conditions imposed on the order, they will have to pay the recognisance amount. They may also have to return to court and be re-sentenced for the original offence. Police drug diversion Police are allowed to offer eligible persons the opportunity to participate in a drug diversion assessment program as an alternative to prosecution of their criminal charges. Police drug diversion is legislated under s 379 of the Police Powers and Responsibilities Act 2000 (Qld). Eligibility for police drug diversion To be eligible for police drug diversion, a person must: be arrested for, or questioned about, a minor drugs offence; not have committed another indictable offence in circumstances related to the minor drugs offence; not have been previously sentenced to serve a term of imprisonment for supply, trafficking or production of a dangerous drug or precursors; not have been previously convicted of an offence involving violence against another person or if they have, the rehabilitation period under the Criminal Law (Rehabilitation of Offenders) Act 1986 ​must have expired; admit to having committed the minor drugs offence during an electronically recorded interview; and not have previously been offered drug diversion by a police officer. Minor drug offences are classified as possession of 50g or less of cannabis or the possession of a thing that is or has been used for smoking cannabis. Offences related to the production, supply or trafficking of cannabis are not minor drug offences. A person can only be offered police drug diversion once. If a person who is offered drug diversion refuses or agrees to the offer but does not complete the program, no further offers will be made. If a person accepts the offer to participate in a police drug diversion program, they must participate and they must complete the program. It they do participate at all or fail to complete the program in the manner and at the date, time and place agreed, then the police will investigate the matter, and that person may be charged and be required to attend court. Get help from a criminal lawyer If you’ve been ordered by the Court to participate in a drug diversion program or you’ve been offered police drug diversion, this is an opportunity to get help with your drug use and offending behaviour without having a criminal record recorded. If you have failed to participate in your drug diversion program or you have not fully completed the program, there can be severe consequences. If you are in this position, you should seek early advice from a criminal lawyer about your options. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/may/drug-diversion/ Mon, 13 May 2024 00:00:00 The Migration Amendment (Strengthening Employer Compliance) Act 2024 received royal assent on 20 February 2024 and commences from 1 July 2024. These changes are being introduced to try to curb temporary migrant worker exploitation and hold employers who conduct themselves this way accountable. Migrant worker exploitation has been widely recognised in a variety of industries across Australia. As is often the case, fault may only lie with a few “bad apples” doing the wrong thing, but vulnerable overseas workers deserve our protection from these sorts of behaviours and practices. What does this mean for temporary migrant workers? Section 235 of the Migration Act , which currently makes it an offence for a visa holder to breach work conditions or for an unlawful citizen to work, has been repealed. The purpose of repealing that section is to try to encourage anyone who is being exploited to come forward and report it. Home Affairs will provide a list of all employers that have been prohibited from employing temporary migrant workers so visa holders can be confident that they are not applying to work with an unscrupulous employer. Before the Minister considers cancelling a temporary migrant worker’s visa, if the worker has been the subject of employer exploitation, these matters can be given weight when determining whether to cancel their visa or not. What does this mean for employers and others in the employment chain? It is now a crime to coerce or even apply undue pressure on a person to breach their work-related visa conditions. Significant pecuniary and civil penalties apply. If convicted of these sorts of offences, it’s also likely that you will be prevented from being able to employ temporary visa holders for a specified period of time. If you are a business that relies on these sorts of workers, that could put your whole business in jeopardy. You may find yourself on a publicly available list of employers to avoid. The changes encompass all “arrangements in relation to work” which includes those that fall outside “work-related activities”, for example: unsafe working conditions; inappropriate or unsafe accommodation; sexual harassment ; and involvement of labour-hire companies etc. What’s an example of exploitation, coercion or undue pressure on a person? The explanatory statement to the Bill gave this detailed example: Person A is an international student studying pharmacy who has recently arrived in Australia. Before the semester starts, Person A attempts to find part-time work to support their stay; however, they are finding it difficult to find employment. Person A secures work with a labour-hire intermediary (LHI X) and explains that they are restricted from working more than 48 hours a fortnight during the term, in line with their work-related visa condition (condition 8105). LHI X notes Person A’s work restrictions and arranges a contract with an employer. Person A has been working 48 hours a fortnight. After two months, LHI X requests Person A to accept an additional contract with another employer. If Person A accepts this additional contract, they would be working more than 48 hours a fortnight. Person A politely declines LHI X’s request, and explains that their visa does not allow them to work additional hours. The following month, the LHI X director makes sexual advances towards Person A. Person A rejects those advances, and the LHI director threatens Person A that they will report them to Home Affairs to have their visa cancelled if they don’t comply despite the fact that Person A has not breached their visa condition. Whether or not Person A had worked the additional hours in breach of a work-related visa condition, LHI X may be liable for prosecution, or a civil penalty, under new section 245AAA of the Migration Act. What does the Government expect to achieve with the new temporary migrant workers' protections? These changes reflect the Australian Government’s action in relation to two specific recommendations made as a result of the “Report of the Migrant Workers’ Taskforce” (released in March 2019): Recommendation 19 It is recommended that the Government consider developing legislation so that a person who knowingly unduly influences, pressures or coerces a temporary migrant worker to breach a condition of their visa is guilty of an offence.  Recommendation 20 It is recommended that the Government explore mechanisms to exclude employers who have been convicted by a court of underpaying temporary migrant workers from employing new temporary visa holders for a specific period.  The changes aim to help ensure the integrity of the migration system in Australia by improving the compliance of employers and providing increased protection for temporary migrant workers. Get help from a registered migration agent If you are a temporary migrant worker and you believe you are being exploited by your employer (including labour-hire workers) or you have any other queries in relation to migration law or your workplace rights, contact us for advice and assistance. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/may/temp-migrant-worker-protection/ Mon, 06 May 2024 00:00:00 In our 2021 article, “NSW worker's compensation entitlements when working from home” , we used hypothetical scenarios to discuss how worker's compensation could potentially be claimed when working from home. with hypothetical scenarios. The two main tests an injured worker has to prove when claiming worker's compensation in NS W are: that their injury arose during the course of their employment; and that their employment was a substantial contributing factor to their injury. A recent decision in the NSW Personal Injury Commission (PIC) seems to have taken a broad approach when applying these tests in the context of a worker being injured whilst working from home. Summary of facts The injured worker’s position involved taking phone calls and attending video calls on her computer. Prior to the date of injury, the injured worker had recently bought a puppy for their daughter. During working hours, the injured worker would tie the puppy outside their front door to not disturb them whilst on calls. On the date of injury, the injured worker was working from home and had just got off a call with their manager. The injured worker could hear that their puppy was crying. When they opened their front door, they saw a stray dog attacking their puppy. The injured worker intervened and attempted to rescue the puppy. Whilst doing so, the injured worker was attacked by the stray dog and sustained a physical and psychological injury. The injured worker lodged a claim for workers' compensation which the insurer disputed (rejected) on the grounds that their injury did not arise out of or in the course of their employment and their employment was not a substantial contributing factor to their injury.  Personal Injury Commission determines worker was eligible to claim worker's compensation The PIC was required to determine whether the injured worker’s injury did, in fact, arise out of the course of their employment and whether their employment was a substantial contributing factor to their injury. After reviewing relevant cases and established principles, the PIC determined that the injured worker was injured during the course of their employment and that their employment was a substantial contributing factor to their injury. Considerations related to determining “injury occurred in the course of employment” In relation to whether the injury occurred in the course of employment, the PIC considered where the dog attack occurred. From the evidence, the attack occurred on the injured worker’s property which the PIC considered, at the time of the attack, was their workplace due to being authorised to work from home and the attack occurring whilst the worker was at work. Further to this, the PIC stated that although the worker stopped performing her actual work duties (i.e. taking calls, responding to emails etc.), they were satisfied that intervening in the attack was a reasonable and practical necessity which was consistent with what their employer would have reasonably expected of them in the circumstances.   Considerations related to determining “employment was a substantial contributing factor” In relation to whether the injured worker’s employment was a substantial contributing factor to their injury, the PIC considered the injured worker’s place of employment and the requirements of her role. The PIC stated that the employer expected the worker to perform her work duties in a professional manner which included an environment within the home that was sufficiently quiet and amenable to be able to concentrate. The injured worker’s argument was that they needed to place the puppy outside in order to fulfil this expectation from their employer. The PIC stated that there was no evidence to suggest that the puppy would have been tied up outside (and therefore susceptible to the dog attack) if the injured worker had not been performing her work duties. The PIC stated that the probability of injury increased by the puppy being outside. The PIC stated that this circumstance arose due to the injured worker being at work and due to the nature of their employment. It should be noted that the original date of decision was 24 October 2022. The insurer did appeal the decision, however, a PIC Presidential Decision was handed down on 10 October 2023, which confirmed the original decision being an award for the injured worker. Implications for workers injured working from home in NSW This case does seem to confirm that the PIC will more than likely consider taking a broad view of an injury arising out of the course of employment and employment being a substantial contributing factor when an injury occurs while working from home. The decision also seems to point to the home being considered a workplace during working hours if a worker is permitted to work from home. This is an important consideration in the context of proving that an injury arose during the course of employment, as the location of an injury is one major factor in determining this. Get help from worker's compensation lawyer It is likely that worker’s compensation claims while working from home will increase due to more flexible work arrangements coming into play since the pandemic. It’s important for workers to understand that they still have workplace rights, including the right to compensation after a workplace injury when authorised by their employer to work from home. If your worker’s compensation claim has been declined for whatever reason, or you have any other issues with your claim, it is always important to seek legal advice in order to determine whether you can dispute a decision. At Hall Payne Lawyers, our NSW worker’s compensation lawyers are IRO approved lawyers. This means that your legal fees and any associated costs to dispute the insurer’s decision are free. This includes fees to obtain an independent medical opinion which is crucial when disputing the insurer’s decision. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/april/working-from-home-workers-comp-win/ Sun, 28 April 2024 00:00:00 In December 2023, the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 received royal assent, which will see significant changes to the Fair Work Act (Cth) ( ‘FWA’ ). The various changes will take effect at different times from December 2023 through to 2025. None of the changes will operate retrospectively. In this blog, we explore some of the key changes benefitting employees, including: Criminalisation of wage theft by employers; Regulated labour hire arrangement orders (RLHAO); Enhancing delegates’ rights; Stronger protections for workers experiencing domestic violence; Conciliation conference orders related to protected industrial action; Right of entry to assist Health and Safety Representatives; Amendments to address the harm caused by silica dust; Streamlining worker’s compensation entitlements for first responders diagnosed with PTSD; Introducing the new criminal offence of industrial manslaughter and other WHS reforms. Criminalisation of wage theft by employers The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (‘Closing Loopholes Act’ ) has introduced the criminal offence of intentionally underpaying employees. This change will apply to employee entitlements under the FWA or a fair work instrument (an i ndustrial Award or enterprise bargaining agreement ) but not to sole contractual agreements (individual contracts). This offence has a maximum of 10 years imprisonment and/or a maximum fine of: three times the monetary amount of the underpayment (if the court can calculate this); OR a penalty of 5,000 penalty units ($1,565,000) for an individual; OR a penalty of 25,000 penalty units ($7,825,000) for a body corporate. Regulated labour hire arrangement orders (RLHAO) This amendment allows employees, unions and host employers (the employer where the worker performs their work) to apply to the FWC for an order that labour-hire employees be paid at least the amount they would receive under a host business’ enterprise agreement or public sector determination. This will only apply if the FWC believes it appropriate that the host’s enterprise agreement would apply to the labour-hire worker if they were directly employed by them. The FWC must consider whether the work that is to be carried out is for the supply of labour and whether the order would be fair and reasonable given all the circumstances. However, RLHAO does not apply when an employee is working for a host business under a training arrangement or if they are a small business employer. This change should provide improved wages and conditions for labour-hire workers. Enhancing delegates’ rights Specific rights and protections have been legislated for workplace delegates (union and employee association representatives) that represent the industrial interests of union members. Workplace delegates will be able to have sufficient access to interact with members and potential members on industrial concerns, and they will have access to workplace facilities. Protections for the delegates include the prevention of an employer from unreasonably refusing to deal with them, misleading them or stopping or interfering with their workplace rights. Stronger protections for workers experiencing domestic violence The amendments aim to strengthen anti-discrimination provisions in the FWA to protect employees who are being subject to domestic and family violence from discrimination in the workplace. This means that an employer who takes adverse action (including dismissal) against an employee experiencing domestic violence) or does not hire a person because they are experiencing domestic and family violence, will have committed an offence. Additionally, the amendment criminalises terms in enterprise agreements and modern awards that have a discriminatory effect on people subject to domestic violence. Small business redundancy exemptions in insolvency situations Under the National Employment Standards, small businesses (under 15 employees) are not usually required to pay employees who are made redundant . The changes to redundancy entitlements relate to businesses that go into liquidation or become bankrupt. This is best explained using an example: Company ‘ABC Pty Ltd’ employs 35 staff; Due to a downturn in the amount of work coming into the business, ABC Pty Ltd goes into liquidation. A liquidator is appointed and as part of the liquidation process makes 30 staff redundant. The liquidator retains 5 staff to perform duties to wind up the business over the coming months. ABC Pty Ltd, who originally employed 35 staff, now employs 5 staff. Prior to the changes to the Act, this would make them a small business for the purposes of the National Employment Standards and redundancy obligations. They would have been exempt from paying redundancy to the remaining staff. When the business is formally closed, the 5 remaining staff are no longer employed. Changes to the Act, however, will now make those 5 staff eligible for redundancy pay as they were employed by a non-small business prior to the liquidation. Conciliation conference orders related to protected industrial action Before the Closing Loopholes amendments, all employee bargaining representatives (for example, union officials and representatives, sometimes from multiple unions) had to attend a conciliation conference when a protected action ballot order (PABO) was made. Non-attendance meant that any future industrial action by employees would be unprotected (that is, not legal/authorised industrial action). The amendments mean that only the bargaining representative(s) who applied for the PABO are the ones that need to attend compulsory conciliation, for employee industrial action to be protected. Right of entry to assist Health and Safety Representatives There is no longer a requirement for officials of registered organisations (for example, union officials) to have a Fair Work entry permit to help/assist a Health and Safety Representative (HSR). These people, called HSR assistants, will, however, be required to: adhere to reasonable directions from employers relating to work health and safety; not intentionally stop or interfere with any persons or behave in an inappropriate manner; not misrepresent their HSR assistant rights and entitlements; and not use or distribute information or documents that they obtained from their role as a HSR assistant for any other purpose. Additionally, employers and/or occupiers cannot refuse or unreasonably delay entry for HSR assistants or stop or interfere with their work in aiding a Health and Safety Representative. Amendments to the address the harm caused by silica dust The Closing Loopholes amendments renamed the Government agency responsible for asbestos safety to include the word ‘silica’. The agency is now called the Asbestos and Silica Safety and Eradication Agency. This renaming, amongst other amendments, demonstrates the agency’s new function in dealing with silica-related incidents. As its new name suggests, the agency will now be able to investigate harm caused to people because of silica exposure. The agency will now report, monitor and create responses to asbestos and silica disease across Australia. Streamlining worker’s compensation entitlements for first responders diagnosed with PTSD First responder workers who have been diagnosed with PTSD by a legally qualified medical practitioner or psychologist and are covered under the Safety Rehabilitation and Compensation Act 1988 (Cth), no longer have to prove that their employment significantly contributed to their diagnosis to be eligible for worker’s compensation. The definition of first responder includes the following employees: Australian Federal Police; Australian Border Force; Ambulance officers; Firefighters; Emergency service communications operators; and Any other member of an emergency service defined in the Emergencies Act 2004 (ACT), Introducing the new criminal offence of industrial manslaughter and other WHS reforms Changes to the Work Health and Safety Act 2011 (Cth) ( ‘WHS Act’ ) strengthen the penalties for work health and safety offences which include: A penalty in the Commonwealth jurisdiction of $18 million for a body corporate and 25 years imprisonment for an individual if they are found guilty of industrial manslaughter. Category 1 offence penalties will increase from: $3 million to $15 million for a body corporate; $600,000 to $3 million for a person conducting a business or undertaking (PCBU) or an officer; $300,000 to $1.5 million for any other person. A 39.03% increase to all penalties in the WHS Act. The creation of an indexing method to increase penalties annually in accordance with the national consumer price index. Additional criminal responsibility provisions for body corporates and the Commonwealth. The amendments also created a Family and Injured Workers Advisory Committee. Their role is to provide advice to the Minister for Employment and Workplace Relations and to Commonwealth work health and safety regulators on what support is needed for people who are affected by serious workplace incidents. The new criminal offence of industrial manslaughter comes into effect from 1 July 2024. What do the Closing Loopholes changes mean for workers? The Closing Loopholes changes are definitely a shift towards improving workplace protections for workers and making employers more accountable for their actions. Need help with an employment issue? At Hall Payne, we have an award-winning team of employment lawyers. If you’re in dispute with your employer or you have any employment-related concerns, you should seek advice and assistance early. The sooner you act in relation to a workplace dispute, the better the chances are of a successful resolution. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/april/closing-loopholes-part-1/ Sun, 21 April 2024 00:00:00 If you’ve been exposed to asbestos, whether decades ago or only recently, and you’ve been diagnosed with an asbestos-related injury or illness, you may be entitled to compensation. Asbestos compensation is not limited to people exposed at work. Your asbestos exposure may have been in the family home, other private dwelling or a public place. However, in this article, we are going to focus on the compensation options for workers who were exposed to asbestos dust and fibres in the course of their employment. Compensation options available due to asbestos exposure at work If your asbestos exposure occurred at work and you have been diagnosed with an asbestos-related illness, you may be entitled to claim worker’s compensation in the state where you were exposed or via the national Comcare scheme . In Queensland, this is generally through the state’s workers’ compensation insurance provider, WorkCover Queensland. Occupations such as carpentry and joinery tradespeople, plumbers, electricians and any workers in the construction industry are generally considered to be at a higher risk of being exposed to asbestos in the course of their employment.   If your exposure to asbestos dust was a result of your employer’s negligence or a third party, you may be able to pursue a common law claim for compensation for an asbestos-related illness. What compensation is payable for asbestos claims related to exposure at work? If you have been diagnosed with an asbestos-related disease due to exposure in the course of your employment, you may be entitled to workers’ compensation . The compensation amount you may be entitled to will depend on the level of permanent impairment resulting from the asbestos-related disease and whether your condition is terminal. In Queensland, workers who have been diagnosed with an asbestos-related disease and exposure to asbestos dust in the workplace was a “significant contributing factor” are able to claim compensation for: all medical and hospital expenses incurred as a result of the disease; lost wages caused by their condition; and/or a lump sum amount. Under Queensland workers’ compensation legislation, if your asbestos-related disease has been diagnosed as terminal, you or your family may be entitled to additional lump sum compensation. If you are successful in a common law claim for an asbestos-related disease, you may be entitled to compensation for: the pain and suffering you have endured; loss of income, both in the past and future; entitlements to superannuation on your loss of income; any out-of-pocket expenses incurred as a result of the diagnosis, such as medical and pharmaceutical expenses; and care provided to you commercially or by family and friends. In Queensland, if a loved one has passed away from an asbestos-related disease due to exposure in the workplace, and you are considered the worker’s dependent, you may be entitled to claim reasonable funeral expenses. What personal injuries and illnesses are associated with asbestos exposure? Mesothelioma due to asbestos exposure Mesothelioma is a cancer which is caused by exposure to asbestos. Mesothelioma affects the mesothelium, which is a layer of cells that surrounds organs and tissues in the chest, abdomen and pelvis. When asbestos fibres are inhaled, the particles become lodged in the mesothelium, which causes inflammation. This results in scar tissue plaques forming on the surface of the mesothelium. It is within this scar tissue that cancerous tumours begin to grow. There are two main types of mesothelioma: pleural and peritoneal. Pleural mesothelioma is the common most form of mesothelioma, and it develops in the lining of the lungs. Peritoneal mesothelioma, on the other hand, develops in the lining of the abdomen. In rare cases, mesothelioma can develop in the lining of the heart or the lining of the testes. As a result of the country’s past extensive use of asbestos, Australia has one of the highest rates of mesothelioma in the world. Mesothelioma can take between 20 to 50 years after exposure for symptoms to appear, with the average age of diagnosis being 77 years of age. Although asbestos products were banned in Australia 20 years ago, the number of Australians being diagnosed with mesothelioma has steadily increased over the past 40 years. Lung cancer after asbestos exposure Inhaling asbestos particles has been linked to an increased risk of developing lung cancer. Asbestos-caused lung cancer differs from mesothelioma as the cancer develops inside the lung, as opposed to in the lining of the lung. People who have been exposed to significant amounts of asbestos particles for a long period of time are most at risk of developing lung cancer as a result of the exposure. Additionally, it has been found that the risk of asbestos-caused lung cancer increases significantly for smokers because cigarette smoking diminishes the lung’s ability to remove the asbestos fibres. Asbestos-caused lung cancer will typically be diagnosed 10 to 30 years after exposure to asbestos. Asbestosis Asbestosis is a chronic lung disease where there is widespread scarring of the lung tissue, which is caused by the inhalation of asbestos particles. As the scarring increases, the affected part of the lung becomes shrunken and breathing becomes difficult. Asbestosis develops after prolonged exposure to asbestos particles and therefore is often linked to occupational exposure to asbestos. Symptoms for asbestosis usually develop between 5 to 20 years after exposure. Asbestosis is linked to a high risk of developing mesothelioma and asbestos-caused lung cancer. Are there time limits for asbestos compensation claims? In Queensland, there a strict time limits to lodge an application for workers’ compensation. To make an application for workers’ compensation for an asbestos-related disease, you must make a claim within 6 months of the date of diagnosis. If you are diagnosed with an asbestos-related disease, it is important that you seek immediate legal advice if you wish to apply for workers’ compensation. If claims are not lodged within the time limit, entitlements to compensation may be lost. GET ADVICE FROM AN ASBESTOS COMPENSATION LAWYER:  1800 659 114 The National Asbestos Exposure Register In June 2013, the Australian Government created the National Asbestos Exposure Register (NAER). The NAER is a voluntary, privacy-protected register for members of the community to record information regarding their exposure to asbestos. As the period between exposure to asbestos and the diagnosis of an asbestos-related disease can be decades, the NAER operates so that individuals can record accurate details regarding their asbestos exposure at, or close to, the time the exposure occurred. This information may then be accessed if they are diagnosed with an asbestos-related disease in the future. Recording this information can also be important in pursuing a worker’s compensation claim if an individual has been diagnosed with an asbestos-related disease after occupational exposure to asbestos in the workplace.   Asbestos compensation claims can be difficult but not impossible Due to the period between exposure to asbestos dust and fibres and the onset of asbestos-related diseases often being decades, there can be an added complexity to asbestos-related compensation claims. With the passing of time, historical records (including employment and medical records) can be difficult to track down, memories fade, and witnesses may no longer be available. This should not deter you from investigating your options to pursue a claim. Even though asbestos is now completely banned in Australia, hundreds of Australians each year continue to be diagnosed with asbestos-related diseases and claim compensation for illnesses like mesothelioma, asbestosis and lung cancer. Get help from an asbestos compensation lawyer If you have suffered injury or illness as a result of exposure to asbestos, whether in your workplace or elsewhere, the dust diseases team at Hall Payne Lawyers can assist you with your compensation entitlements. Even if your asbestos exposure was decades ago, if you’ve been diagnosed with an asbestos-related illness, you may have a compensation claim. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/april/asbestos-claims-qld/ Sun, 14 April 2024 00:00:00 The 2023 decision in Wilson v Gold Coast Hospital and Health Service [2023] QSC 135 sheds light on the employer's duty of care to its employees and the consequences of failing to meet that duty, particularly in high-pressure environments like healthcare. In this article, we will dissect the facts, findings, and implications of this significant case, which resulted in a worker's compensation common law damages award of over $1.6 million to the injured worker. Background leading to workplace injury The plaintiff, a nurse, was working in a highly challenging ward, responsible for caring for patients with cognitive vulnerabilities and aggressive tendencies. On the day of the incident, the plaintiff was informed about a patient, referred to as M, who had a history of violent behaviour, including previous assaults on nurses. On the day of the incident, M’s behaviour escalated, and she became increasingly agitated and violent, lunging at hospital staff. Despite having two security officers present to hold her down for the administration of medication, M’s legs were unrestrained. This required the plaintiff to involve herself in restraining M while administering medication, during which she was thrashed at and kicked by M. The plaintiff consequently sustained significant injuries.   Foreseeable risk and employer’s duty of care obligation The key issue in this case revolved around the hospital's duty of care to its employees. The law mandates that an employer must take reasonable care for the safety of its employees and not expose them to a foreseeable risk of injury. The risk must not be insignificant, and the employer is required to take reasonable precautions against it. In this instance, M's history of aggression and unpredictable behaviour made the risk of physical injury to the plaintiff foreseeable. The defendant’s counsel even acknowledged the risk by stating that staff assault risks are precisely why policies and security personnel exist. Thus, it was found that M indeed posed a foreseeable and not insignificant risk of physical injury. Was the risk of injury insignificant? The defendant argued that given the presence of two security officers, the risk of injury posed by M was insignificant. However, the court found this argument lacking. The risk was evident in M's behaviour - she had attacked her partner, attempted to choke her nurse, resisted restraint, and become agitated without a trigger. The presence of security officers was a response to the risk, not a reduction of it. Court finds reasonably practicable precautions were not taken by the employer The heart of the matter revolved around whether the defendant had taken all reasonably practicable precautions to protect the plaintiff from harm. The court found several inadequacies in the defendant's approach: Response to Code Black While a Code Black (an emergency involving aggressive behaviour) was not officially called, the situation certainly warranted such a response, given M’s escalating behaviour. The security officers who attended the scene should have called for additional backup, in line with the hospital's procedures for such incidents. Training and instruction The court found that the plaintiff, as a nurse in a challenging ward, should have been trained not to participate in the physical restraint of a patient. The responsibility of restraint should have been left entirely to security officers; where a Code Black should have been called so that more security officers could be present. According to the defendant’s procedures, the role of the nurse should have been merely to “reassure the patient restrained and to administer medication to them.” Assessment of violence risk The hospital did not complete the mandated OVRATs (Occupational Violence Risk Assessment Tool), which would have provided a clear evaluation of the risk of violence in the ward. Breach of duty, causation and court’s judgement The court concluded that the defendant breached its duty of care to the plaintiff by not taking reasonably practicable precautions. Had the plaintiff not been involved in the physical restraint of M, it is probable she would not have been injured.   In the end, the court made a judgment in favour of the plaintiff nurse, finding that the defendant was liable for the injuries sustained as a result of the negligence, and ordered the defendant to pay $1,634,418.55 in personal injury compensation. Implications This case serves as a stark reminder to employers about the paramount importance of employee safety, particularly in high-risk environments like healthcare. Employers must ensure that they are adhering strictly to policies, conducting appropriate risk assessments, and providing adequate training to staff. Failure to do so can result in significant liabilities, as evidenced by the substantial award of damages in this case. Furthermore, this case emphasizes the need for clear delineation of roles and responsibilities. In high-pressure situations, it is crucial that each member of the team knows their role and responsibilities and, more importantly, what they should not be doing.  In high-risk environments, the line between routine duties and unforeseen dangers can often blur. It is the responsibility of the employer to ensure that this line remains clear and that all employees are adequately trained, supported, and protected. Get help from a personal injury lawyer It is essential for injured persons to seek legal advice and understand their rights and the compensation they may be entitled to under Queensland state legislation. Hall Payne Lawyers specialises in helping those injured at work navigate these complex legal matters and secure the justice and compensation they deserve. If you or someone you know has been injured at work, please contact our worker’s compensation team for support and guidance. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: Queensland Court of Appeal win for seriously injured worker Win for Queensland spray painter’s terminal condition WorkCover claim Can employers be vicariously liable for actions of intoxicated workers? https://www.hallpayne.com.au/blog/rss/blog/2024/march/nurse-assault-compensation/ Sun, 31 March 2024 00:00:00 If you sustain a workplace injury in Queensland , in the midst of undertaking medical treatment and rehabilitation, there is the added stress of navigating the world of worker’s compensation claims. This blog is a guide for injured workers. We explore: who is covered for worker’s compensation in Queensland; lodging your worker’s compensation claim; what benefits are available; relevant timeframes for the worker to lodge a claim and the insurer to respond; and options to appeal a denied worker’s compensation claim. CALL FOR FREE WORKERS COMPENSATION ADVICE:  1800 659 114 OR CLICK HERE TO EMAIL YOUR INQUIRY: GENERAL@HALLPAYNE.COM.AU Who is covered by the Queensland worker’s compensation scheme? To determine your eligibility for worker’s compensation in Queensland, you are required to meet the following criteria: You are a worker in Queensland; You have sustained an injury; You were injured during the course of your employment; and Your employment was a significant contributing factor to your injury. Please note that some workers who work in Queensland are covered under the Commonwealth worker’s compensation scheme, Comcare. You can read information about the Comcare scheme here . Lodging your Queensland worker’s compensation claim You should notify your employer of a workplace injury or illness as soon as possible after the accident or after any diagnosis of a work-related illness. You should complete an incident report and attend on your doctor or a hospital.  To lodge a worker’s compensation claim, you will need a “work capacity certificate”. This is a type of medical certificate specifically for worker’s compensation claims. It should be completed by your treating doctor. Once you’ve notified your employer and obtained your work capacity certificate, you can lodge a worker’s compensation claim with WorkCover Queensland, either online here , or by calling them on 1300 362 128 . If your employer is self-insured, you can lodge your claim directly with them. Tips before lodging your claim To claim worker’s compensation in Queensland, you need to be able to prove that an incident has occurred, causing injury (including psychological injuries and illnesses); Whether the injury you sustained is a compensable injury is defined under Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“ the Act ”) as: “… a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor .” A connection between the injury sustained and employment is paramount. If you get injured, your injury will generally be considered “work- related” if it occurred while you were working or because of your work. However, just because an injury occurs at your workplace, it does not mean it is because of your work. Similarly, if you are injured because of your work but outside of your workplace, your injury might be work-related. An injury includes an aggravation of a pre-existing injury (which need not be an injury resulting from your employment). Requirements for psychological injuries arising out of certain circumstances vary. You can read more about psychological injury claims in our blog, “I’ve suffered a psychological injury at work. What do I do?” The correct worker’s compensation medical certificate (a work capacity certificate) must have been completed by a medical practitioner; You should include any relevant evidence to support your application for worker’s compensation. For example, incident reports, medical reports and witness statements. What worker’s compensation benefits are available in Queensland? Injured workers in Queensland with an accepted worker’s compensation claim may be entitled to: weekly payments for loss of wages; reasonable medical expenses related to the workplace injury; lump sum compensation for permanent impairment; and travel expenses when travelling to/from medical appointments. In addition to your statutory (no-fault scheme) entitlements, if your injury was caused by the negligence of another person or entity, you may also be entitled to common law damages. Time limits for worker’s compensation claims in Queensland? Under the Act, generally, an application for compensation should be lodged within 6 months after the entitlement to compensation for the injury arises. A WorkCover insurer, under certain special circumstances, may consider a late application. If you’ve lodged a worker’s compensation claim outside the 6-month time limit and the claim has been denied, you should seek legal advice from a worker’s compensation lawyer. GET ADVICE FROM A WORKERS COMPENSATION LAWYER:  1800 659 114 How long does the insurer have to make a decision on my worker’s compensation claim? The WorkCover insurer has 20 business days to make a decision on your application, however, they may require more time to undertake further investigation or to obtain further information to assist in making a decision. The insurer has an obligation to communicate the outcome with you in writing. Can I appeal an adverse decision on my worker’s compensation claim? If your worker’s compensation claim is rejected, the WorkCover insurer must advise you of that decision (within 20 business days, as mentioned earlier, and they must also advise you of the reasons for denying your claim in writing. If you disagree with the insurer, you are entitled to have the decision reviewed within 3 months of receiving the decision and reasons for the decision. You should seek legal advice from a lawyer experienced in Queensland worker’s compensation claims, if you wish to review an adverse decision. GET ADVICE FROM A WORKERS COMPENSATION LAWYER:  1800 659 114 Get help from a Queensland worker’s compensation lawyer When considering lodging a worker’s compensation claim in Queensland, it is important to understand your eligibility to claim, provide all the necessary documentation and evidence (including your work capacity certificate) and be mindful of time limits. If you’re unsure of your rights and entitlements, or you’ve received an adverse decision from the WorkCover insurer at any time, you should seek legal advice. Hall Payne’s worker’s compensation lawyers can assist you with any aspect of your claim, including any rights to pursue lump sum compensation for permanent impairment or a common law claim due to negligence. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/march/workcover-qld-guide/ Sun, 17 March 2024 00:00:00 The majority of superannuation fund members have insurance cover inside their super . This could include cover for death, total and permanent disablement (TPD), income protection and, in some cases, trauma cover. When a worker is sick or injured and unable to return to work, they may claim on disability insurance policies they hold. In this blog, we explain the circumstances where you can claim both TPD and income protection at the same time. Can I claim both TPD and income protection? If you find yourself unable to work due to an injury or illness, that is when income protection insurance and/or total and permanent disablement insurance come into play. They are different insurance products which cover different circumstances, but there are times when someone might be able to claim both TPD and income protection at the same time. The long answer is that, depending on the terms of the relevant disability insurance policies you hold, your income protection benefits could cease as at the date that you are accepted as being totally and permanently disabled and claim a lump sum TPD benefit. This can be due to the definitions contained within the income protection policy for total and temporary disablement or partial and temporary disablement or because the policy specifically states that benefit payments will cease in these circumstances. In some cases, a claims officer will review medical opinion/information provided in support of an income protection claim and actually determine that someone is totally and permanently disabled without any TPD claim having been made by the member (if they hold both types of cover). The ability to do this internal assessment of total and permanent disablement will depend on the particular wording in the policy associated with ongoing disablement. Can I start on income protection and then claim TPD if I can’t return to work? In general, if you are in receipt of income protection payments, in order to obtain the maximum number of payments available to you, you need to understand what period you are covered for. It could be 12 months, 2 years, 5 years or even to age 65 years in some cases. A TPD claim can be submitted towards the end of your income protection benefit period if it is the case that those income protection payments will cease on approval of your TPD claim. You need to keep in mind that a TPD claim will likely take longer to assess and approve than an income protection claim. So, you could be in a position where you end up with no income at all for a period of time before you are approved for any lump sum insurance amount for TPD.  Claiming both TPD and income protection at the same time (if eligible) can be a bit of a juggling act. That’s where a trusted adviser can assist. If you’re considering your options to claim both TPD and income protection, we recommend you speak with a professional experienced in disability insurance claims first to ensure you protect all your entitlements. We can make an enquiry on your behalf prior to you submitting a claim to ascertain: your types of insurance cover; the levels of cover you have; your benefit period for income protection (and the waiting period before payments commence); and whether or not any income protection benefits will cease on acceptance of a TPD claim. A large proportion of our clients who have been injured at work have us undertake this enquiry for them whilst they are still in receipt of worker’s compensation statutory benefits. This allows them to be informed of their options in advance of having to make any decisions about what insurance benefits to claim and when. Important note : although many of our TPD and/or income protection clients were actually injured at work, your injury or illness does NOT have to be work-related to claim TPD or income protection. Along with a raft of physical injuries that could make you eligible for disability insurance claims, there are also many illnesses/diseases, including: Mental and psychological illness; Cancer; Parkinson's disease; Multiple sclerosis; Bi-polar; Leukaemia; Chronic fatigue syndrome; and more. Get help from a disability insurance professional Hall Payne’s disability insurance professionals assist with a range of claims, including TPD, income protection and trauma insurance. If you haven’t yet commenced your claim, having someone on your side who understands the claims process as well as the insurer’s obligations and the legal terminology is often the difference between having your claim accepted or rejected by the insurer. If your claim has been denied, is taking too long, or you have any other concerns in relation to TPD, income protection or death benefits, get in touch with a member of our superannuation and insurance team. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/march/claim-both-tpd-and-ip-together/ Sun, 10 March 2024 00:00:00 Workplace bullying creates a risk to work health and safety, which can have major psychosocial and psychological effects on workers’ mental health. Bullying in the workplace is not acceptable, and there are laws, and often workplace policies and procedures, in place for reporting and addressing such bullying. This article will explore what behaviour constitutes bullying under the Fair Work Act 2009 (Cth) and explain the formal complaint pathway to apply to the Fair Work Commission for an order to stop bullying at work. There are many reasons why people don’t report being bullied at work. One of them is that you might believe that bullying is part of the accepted workplace culture, or you think that opportunities for promotion at work or the wider industry will be affected. You might have a lack of knowledge about bullying behaviour and its effects on mental health and wellbeing. If you are experiencing workplace bullying, we strongly recommend you seek medical assistance and also legal advice about your options under relevant employment laws. Bullying can occur: between workers; from managers/supervisors to workers ; from workers to managers/supervisors; and by or towards other people at your workplace, such as clients, patients, students, customers and members of the public. What is workplace bullying? The nationally accepted definition of workplace bullying is: “Repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety .” What classifies as repeated behaviour? Repeated behaviour refers to the persistent nature of the behaviour and can involve a range of behaviours over time. A single incident of unreasonable behaviour is not workplace bullying. However, if it is repeated, and/or it escalates, you should take the actions available to you to address it. What classifies as unreasonable behaviour? Unreasonable behaviour means behaviour that a reasonable person, having considered the circumstances, would see as unreasonable. In other words, it is an objective test having regard to all the relevant circumstances that apply at the time. Unreasonable behaviour includes (but is not limited to) behaviour that victimises, humiliates, intimidates or threatens someone. Assessing the risk to health and safety The unreasonable behaviour must also create a risk to health and safety. A risk to health and safety means the possibility of harm to health and safety. This does not mean you have to prove that there is actual harm to your health and safety. In other words, you do not have to prove that you have suffered an actual illness or injury in order to demonstrate the necessary risk. However, there must be a causal link between the behaviour and the risk to health and safety. This means that the unreasonable behaviour carried out by one or more workers has to be responsible for causing a risk to your health and safety. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk. Examples of workplace bullying behaviour Examples of behaviour that may be workplace bullying if they are repeated, unreasonable, and create a risk to work health and safety include the following: abusive, insulting or offensive language or comments; unjustified criticism or complaints; deliberately excluding someone from workplace activities; withholding information that is vital for effective work performance; setting   unr easonable timelines or constantly changing deadlines ; setting tasks that are unreasonably below or beyond a person’s skill level; denying access to information, supervision, consultation or resources to the detriment of the worker; spreading misinformation or malicious rumours; or changing work arrangements such as rosters and leave to deliberately inconvenience a particular worker or workers. Can workplace bullying occur outside the workplace or normal working hours? The Fair Work Act 2009 (Cth) definition of workplace bullying includes a reference to ‘while the worker is at work’. The difficult question of when a worker “is at work” was considered by the Full Bench in Bowker v DP World Melbourne Limited . The Full Bench concluded a worker need not be physically at work when the unreasonable behaviour occurs. Instead, the bullying conduct (repeated, unreasonable behaviour) must occur at a time when the worker is “performing work” . Hence a worker will be ’at work’ at any time the worker performs work, regardless of his or her location or the time of day. Further, the individual(s) who engage in the unreasonable behaviour do not have to be ’at work’ at the time they engage in that behaviour. Other circumstances where a worker will be considered to be ’at work’ include while on an authorised meal break at the workplace. What is not workplace bullying? Managers and supervisors have authority in the workplace to reasonably direct and control the way work is done, as well as provide fair and reasonable feedback on a worker’s performance. Such actions by management exercising their authority will not constitute workplace bullying as long as it is carried out in a reasonable manner. Often workers might take offence or feel some discomfort when management: decide not to select a worker for a promotion; transfer a worker to another role or area for operational reasons; inform a worker about unsatisfactory work performance; inform a worker about unreasonable behaviour; or take disciplinary action, which is justifiable in the circumstances. As long as any of the above actions are carried out in a reasonable manner, they will ordinarily not constitute workplace bullying. What is and is not reasonable will depend on all of the circumstances in place at the relevant time. For more information on whether management action is reasonable, please see our earlier blog, “Am I being bullied or is it reasonable management action?” Does unlawful discrimination or sexual harassment amount to bullying? Unreasonable behaviour may involve unlawful discrimination or sexual harassment in the event it meets the above requirements. Generally, sexual harassment includes unwelcome sexual advances, requests for sexual favours or other unwelcome conduct of a sexual nature that could be expected to make a person feel offended, humiliated or intimidated. The Fair Work Commission has introduced a regime which enables workers to apply to the Commission for a ‘stop sexual harassment’ order. You can read more about Australia’s first stop sexual harassment case here . Unlawful discrimination means a person or group of people are treated unfairly or less favourably than others because they have a particular characteristic or belong to a particular group of people. Protected traits include race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. For example, it would be unlawful for an employer not to employ or promote a woman because she is pregnant or may become pregnant. Discrimination is unlawful under state and territory anti-discrimination law and workplace relations laws. Workers can seek remedies through the Fair Work Commission or state and territory equal opportunity tribunals. What can you do if you’re being bullied at work? Workers can apply for an order to stop bullying under the Fair Work Act . For a worker to be able to apply to the Fair Work Commission for orders to stop bullying, the worker must reasonably believe that they have been bullied at work. This means the applicant must hold an actual and genuine belief and there must be something to support it or some other rational basis for the holding of the belief. The employee must also be currently employed – an application is not available if the employee has been terminated or resigned. The ‘stop bullying at work’ regime is designed to prevent bullying at work. The Commission may make any order it considers appropriate to prevent the risk of further harm. Before it makes an order, the Commission must be satisfied that: the worker has been bullied at work; and there is a risk that the worker will continue to be bullied at work. Orders by the Commission are not designed to punish individual perpetrators or provide financial compensation for past harm to the person being bullied. However, in making such an application, it remains possible for the parties to come to a settlement that includes the payment of compensation. Seek help from an employment lawyer If you, or someone you know, is experiencing bullying, discrimination or sexual harassment in the workplace and you’d like advice or assistance about your legal options, our employment law teams across the country are able to assist. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/march/workplace-bullying/ Sun, 03 March 2024 00:00:00 If you have participated in a Fair Work Commission (‘FWC’) hearing about an employment law issue and you are unsatisfied with the result, you might wish to appeal. An appeal of a decision of the Fair Work Commission is normally heard by the Full Bench of the Fair Work Commission. This means that three members of the Commission will hear the matter and consider the appeal before making their own decision. Under what grounds can I appeal a Fair Work Commission decision? Grounds for appealing a Fair Work Commission decision could be things like: The Commission made a mistake in its application of the law This might mean that the law was applied incorrectly or the Commission did not have the power to make the decision. The Commission made an error of fact. This might mean that the Commission understood the parties’ case incorrectly. Grounds may also be that the Commission failed to take into account relevant information or that the Commission relied on irrelevant information when making its decision. The process for appealing a Fair Work Commission decision The first step in appealing a Fair Work Commission decision is to seek leave (permission) to appeal. This is done by submitting a notice of appeal with the FWC. The second step is to prepare an appeal book which contains all the relevant material about the initial hearing. The final stage of an appeal is the hearing before the Full Bench if required. Below, we go through each of these stages in more detail. Notice of appeal The Fair Work Commission requires parties to seek permission to appeal a decision they are not happy with, within 21 days of the Commission’s decision. Permission is sought through a notice of appeal. A notice of appeal must contain the following information: The name and contact details of the respondent to the appeal (the other party); The Commission’s reference number (matter number) for the original case; The Member or delegate of the Commission who made the original decision; and The date of the original decision. A person appealing (the Appellant) must show the Commission why they believe it is in the public interest for the Commission to grant permission to appeal. The Appellant will also need to set out reasons or ‘grounds’ for appeal (as discussed above). In their application, the Appellant may ask the Commission for a ‘stay’ of the original decision. A stay will prevent the original decision from being enforced while the appeal is heard. If you apply for a stay, the Commission will try to list a hearing about that part of your application within 7 days of receipt. Once your appeal notice is ready, you must lodge it with the Fair Work Commission. This can be done by email, post or in person at a Commission office. Appeal book Once the Appellant has submitted their notice of appeal to the Fair Work Commission, they have seven days to create and submit an appeal book. An appeal book must contain all the documents from the Commission which are relevant to the appeal. This means that an Appellant must include: any order the Commission made about the case; a copy of the decision and the reasons; a transcript from the original case or a relevant extract from the transcript; and a copy of each document from the original proceedings that relates to the reason for your appeal. After providing the appeal book to the Commission, the Appellant must send a copy of the appeal book to the other party. Hearing before the Full Bench of the Fair Work Commission Once the notice of appeal and the appeal book have been received, the Commission may ask the parties for more information before the hearing. The Commission will consider whether an actual hearing is required or whether they can make their decision ‘on the papers’. This means they will make their decision based on the written information provided to them. Often the Commission will decide to hear the application for permission to appeal and the appeal at the same time. Sometimes, however, there will be two separate hearings. Get help from an employment lawyer if you wish to appeal a FWC decision More often than not, it can be difficult to know whether you have grounds for appeal. Even if you think there has been a mistake of law or fact, the Commission might decide it was not a big enough error to allow an appeal. It is also important to remember that agreements made in a Fair Work conciliation are made with the consent of the parties. Because the agreement was made with the parties’ consent, a party cannot appeal an agreement made in conciliation except in very limited circumstances. These agreements are not ‘decisions’ of the Fair Work Commission. If you wish to appeal a Fair Work Commission decision or have already appealed and want to know what you can do next, you should seek legal advice from an experienced employment lawyer. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/february/appeal-fwc-decision/ Sun, 18 February 2024 00:00:00 With the increasing popularity of social media in the past decade, employers across Australia have implemented a range of measures to ensure that they are protected from the harm that social media can invite. Employers are increasingly incorporating social media restrictions into employment contracts along with comprehensive social media policies that extend to conduct outside the workplace. Social media, whether used within the workplace or for communication with colleagues outside of working hours, can serve as a platform for problematic behaviour. Instances of bullying, vilification, discrimination, and harassment frequently manifest on social media platforms. Employees should be aware that their rights and responsibilities with respect to social media use may extend beyond the workplace. In an earlier blog, “Social media and work – employees be warned” , we explored a case involving an Instagram post by a Hobart Hurricanes cricket player, which landed her in hot water. In this blog, we look at two more cases from 2018 and 2022 which saw both employees terminated due to inappropriate social media use outside of the workplace. The illusion of privacy Employees should bear in mind that their ‘private’ social media activity is not always private. Even if a social media post, comment or tweet is private or only shared amongst close friends and family, that post can be screenshotted, shared or reposted to a limitless audience. An initial audience of a couple of friends can quickly become an audience of thousands, with devastating effects. There are countless examples where employees have shared personal messages between colleagues that have made their way back to an employer. In the case of Colwell v Sydney International Container Terminals Pty Limited [2018] FWC 174 , a stevedore was dismissed due to his transmission of a sexually explicit video through Facebook Messenger to a private group that included male and female colleagues, despite no formal complaint to the employer. Mr Colwell disputed his employer’s decision in the Fair Work Commission (“FWC”), arguing that: any conflicts or issues arising from social media interactions amongst friends should be resolved among themselves, without the interference of an employer; and the conduct lacked a significant connection to his employment since it: occurred outside of work hours; did not involve any workplace-related resources; and involved only the applicant and other employees who had volunteered to connect via Facebook. The employer, which had implemented measures to encourage greater female participation in the stevedoring industry, including introducing policies to prevent all forms of workplace harassment, contended that the conduct constituted a violation of its policies. The FWC determined that there existed a necessary connection between the employee's behaviour and his employment, thereby justifying the dismissal. The FWC found that Mr Colwell had formed Facebook connections with his colleagues primarily due to their work relationship and concluded that the content shared privately among them was a breach of the employer’s policies of expected conduct. Ensure you know and understand your employer’s social media policy Workplace policies can vary significantly between employers, and it is important that employees thoroughly review and comprehend all policies within their workplace, including those concerning the use of social media. Often, workplace policies concerning the use of social media will expressly include social media activities outside of the workplace and include the use of social media platforms when communicating between colleagues beyond ordinary working hours. In Corry v Australian Council of Trade Unions [2022] FWC 288 , an employee found himself in a contentious situation after sharing provocative and discriminatory content on his personal Facebook account in support of anti-coronavirus protests. His employer, deeming these posts a serious violation of their social media policy, summarily dismissed the worker, terminating his employment immediately. Crucially, it is important to note that none of the posts were shared during work hours or with the use of the employer’s property, and despite the fact that the Facebook account was public, the employee could not be identified by their profile as an employee of the employer. The employee challenged the dismissal, vehemently denying that their posts carried any offensive, homophobic, or antisemitic connotations. The FWC upheld the summary dismissal, concluding that the employee's actions constituted a breach of the social media policy and contrary to his employer’s public position. The FWC found that the out of hours conduct was likely to cause damage to the employment relationship and was incompatible with the employee’s duty owed to his employer. As social media continues to play a significant role in our professional and personal lives, employees and employers alike must navigate the complexities of online conduct. Employers have taken proactive steps to safeguard their interests through policies and actions that address social media behaviour both inside and outside the workplace. While not every instance of negative social media behaviour will result in dismissal, the potential impact on an employee's tenure underscores the importance of responsible online engagement. It is essential for employees to recognize the evolving boundaries between personal and professional realms. The cases of Colwell and Corry exemplify that such boundaries can extend beyond the workplace, emphasizing the need for discretion in online interactions, even when outside of work hours. Get help from an employment lawyer If you’re facing disciplinary action, including dismissal, due to inappropriate social media use in breach of company policies, you should seek advice from your union or an experienced employment lawyer. Timely advice is crucial as there are strict time limits to lodge an unfair dismissal claim if your employment has been terminated. Hall Payne’s award-winning employment law team can assist you with any issues you are having in the workplace. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/february/social-media-impacts-on-employment/ Sun, 04 February 2024 00:00:00 In a harrowing inquiry into child sex abuse at Victorian state primary schools, survivor stories of heartbreak and devastation have emerged. The focal point of this investigation is Beaumaris Primary School, a case that we reviewed in our earlier blog, “Beaumaris Primary School child sexual abuse inquiry expands” . Recent and sustained media attention sheds light on: the system's failures that allowed such abuse to persist; the potential legal precedents it might set; and what survivors of institutional abuse can do to seek justice and support. Systemic failures and institutional abuse in the Victorian Education Department The inquiry’s scope covers a period from the 1960s through to 1999 and encompasses 23 schools where the teachers were employed. This raises questions about how such a large number of perpetrators could exist within a single education system. One significant aspect of this inquiry is the scrutiny of the actions taken by the education department during the time when these abuses occurred. The inquiry aims to determine whether the department responded adequately to allegations of abuse and whether there were any signs of a cover-up or negligence. Setting a precedent for the future to protect children from institutional abuse The Beaumaris Primary School Child Sex Abuse Inquiry has the potential to set a significant legal precedent. It forces us to confront the disturbing possibility that such abuses were not isolated incidents but rather the result of systemic issues within the education system. The enquiry could pave the way for better safeguarding measures in schools and institutions nationwide. Justice and compensation for abuse survivors For survivors of abuse, this case highlights the importance of seeking legal advice. Legal avenues may exist for seeking compensation and holding responsible parties accountable for the pain and suffering endured. Survivors should consult Hall Payne Lawyers, as our abuse team specialise in these cases. We will assist you in exploring your options to ensure you get the justice you deserve. Survivors of abuse, such as those involved in the Beaumaris Primary School Child Sex Abuse inquiry, often face a long and challenging road to healing and justice. Legal advice can help survivors navigate the process of seeking compensation and regain a sense of control over their lives. How to get started Contact our abuse team If you’re ready to take the first step toward justice, contact a Hall Payne abuse lawyer on 1800 659 114 or email us at referrals@hallpayne.com.au . Initial consultation We offer a free initial consultation where we can discuss your case, answer any questions you may have, and provide you with the information you need to make an informed decision about pursuing legal action. Compassionate support Our abuse team is not only experienced but also compassionate. We recognise the immense strength it takes to come forward and seek justice. You can trust that we will treat your case with the utmost care and sensitivity. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/january/vic-schools-sexual-abuse-inquiry/ Sun, 21 January 2024 00:00:00 Trigger warning – this article refers to child abuse . GLJ commenced a claim against The Trustees of the Roman Catholic Church of the Diocese of Lismore (‘the Diocese’), claiming damages for psychiatric injuries suffered as a result of sexual abuse. The alleged perpetrator of the sexual abuse, a priest of the Diocese, had died in 1996. The Diocese only had knowledge of the abuse in 2019. At first instance, the Diocese’s application for a permanent stay was refused. The Diocese appealed to the New South Wales Court of Appeal. In 2022, the New South Wales Court of Appeal granted a permanent stay of the proceedings Diocese, the Court concluding that the continuation of the matter would amount to an abuse of process as the Church was ‘utterly in the dark’ and a fair trial could not be held. In 2023, GLJ took their case to the High Court of Australia seeking leave to appeal the decision granting a stay of the proceedings. The High Court granted the appeal, overturning the decision of the New South Wales Court of Appeal. The majority concluded that it was wrong to find that there could be no fair trial. As GLJ was successful with the appeal, GLJ is entitled to proceed with their personal injury damages claim for childhood sexual abuse . You can read the High Court decision here:  GLJ v the Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 (‘ GLJ v the Diocese’ ). This is a significant victory for abuse survivors in Australia because it saw the first opportunity for the High Court of Australia (‘the High Court’) to consider the “new legal context” resulting from recommendations arising out of the Royal Commission into Institutional Responses to Child Sexual Abuse (‘the Royal Commission’). In particular, the removal of the limitation periods (time limits) for personal injury damages claims arising from childhood sexual abuse was highly relevant in this case. What is a stay of proceedings? A stay of proceedings refers to a Court’s discretionary power to halt Court proceedings either temporarily or permanently. A court has the power to order a permanent stay of proceedings if it is determined that a trial will be unnecessarily unfair or oppressively unfair to one party and that it is considered an abuse of process. If you would like to learn more regarding a permanent stay of proceedings and how it operates in childhood sexual abuse cases, you can read our earlier article. ‘Child abuse claims – can they be thrown out of court?’ The significance of the Royal Commission and the removal of the statute of limitations In December 2017, the Royal Commission handed down its Final Report which detailed numerous recommendations which aim to protect and improve the safety of children who reside or interact in educational, recreational, reporting, cultural or religious institutions. One significant finding of the Royal Commission was that survivors of childhood sexual abuse take, on average, 22 years to disclose the abuse they have suffered. Limitation periods (time limits) caused a significant barrier to survivors if they pursued compensation for injuries suffered as a result of childhood abuse. All Australian jurisdictions (all states and territories) removed the limitation period for survivors of childhood sexual abuse. This was an important step towards addressing decades of injustice and indifference shown to victims, however, the provisions do not limit a Court’s power to dismiss or permanently stay proceedings where a fair trial is not possible. The High Court decision offers guidance on the matters to be considered in an application for a permanent stay establishing that the death of a perpetrator or witness will not on its own be sufficient for a permanent stay to be granted where evidence of tendency or prior knowledge exists. Importantly, the High Court emphasised that a permanent stay is a last resort measure that should only be granted in exceptional circumstances. The facts in the GLJ v the Diocese child sexual abuse case The appellant (‘GLJ’) alleges that in 1968, a Catholic priest, Father Anderson, was directed by the Diocese of Lismore to attend GLJ’s family home as a support priest following her father being seriously injured in a motorcycle accident. The appellant was 14 years old at the time. GLJ alleges that, on one of Father Anderson’s visits to her family home, he sexually assaulted her. In January 2020, GLJ commenced legal proceedings seeking damages against the Diocese. GLJ claimed that the Diocese breached its duty of care owed to protect her from the foreseeable risk of harm of sexual abuse by Father Anderson, as well as the Diocese being vicariously liable for the alleged sexual abuse by Father Anderson. In November 2020, the Diocese filed a notice of motion seeking a permanent stay of the proceeding, claiming that a fair trial could not be held because: the Diocese was not made aware of GLJ’s allegations until 2019; and all material witnesses who could have provided instructions or given evidence on critical issues in the proceedings, including Father Anderson, had died. History of the case Original hearing – Supreme Court of NSW In 2021, the primary judge in the Supreme Court of New South Wales, Campbell J, refused to grant the permanent stay of proceedings. Campbell J provided many reasons for this decision, including: a fair trial need not be a perfect trial; of its nature, child sexual abuse occurs in private, and therefore eyewitness evidence is rarely available; the Diocese’s submission indicated that it held documentary evidence which could contradict GLJ’s claim; and that, regarding section 6A of the Limitation Act 1969 (NSW), the Parliament intended for child abuse claims to be allowed to proceed despite long passages of time inevitably resulting in the loss of evidence, provided a fair trial can be held. Catholic Church appeals to the NSW Court of Appeal The Diocese appealed to the New South Wales Court of Appeal on the ground that the primary judge (Campbell J) erred in failing to use his discretion to permanently stay the proceedings. The Court of Appeal found that the primary judge was incorrect in concluding that a fair trial was possible. The Court of Appeal held that because Father Anderson had died before GLJ’s allegations could be put to him, the Diocese was “utterly in the dark” on the central issue as to whether the sexual abuse occurred. Therefore, the Court of Appeal set aside Campbell J’s orders and granted a permanent stay of the proceedings. GLJ applied for special leave to the High Court to appeal the decision of the Court of Appeal. High Court decision By a 3-2 majority, Kiefel CJ, Gageler and Jagot JJ, with Steward and Gleeson JJ dissenting, the High Court allowed the appeal. The majority held that the Court of Appeal erred in its conclusion that GLJ’s proceedings would result in an unfair trial. The majority held that because the limitation period was removed for claims for damages for personal injury resulting from child sexual abuse, it can no longer be held that the passing of time alone justifies a Court’s power to permanently stay the proceedings. The majority held that a permanent stay of proceedings was a last-resort measure, which could only be exercised in exceptional circumstances. Having regard to the “new legal context”, that is, the removal of limitation periods for child sexual abuse claims, the High Court concluded that Parliament intended to protect the rights of survivors to have their cases heard, and the passing of time in itself can no longer be the basis (on its own) for the Court exercising its power to stay proceedings. The High Court acknowledged that the passing of time, even long periods of time, will create challenges, for example, the fading or loss of memories and evidence, and the death of witnesses, however, such challenges were not necessarily to be considered exceptional. At a trial, a claimant must still prove their case. The majority held that the death of Father Anderson and the loss of opportunity for the Diocese to investigate GLJ’s claims would not result in an unfair trial. There was evidence that, before the alleged sexual abuse of GLJ occurred, the Diocese was aware of other sexual abuse allegations made against Father Anderson by four boys. The majority held that while the GLJ’s specific allegations were not put to Father Anderson, the Diocese did have ample opportunity to investigate claims of him committing child sexual abuse before his death. Therefore, the majority of the High Court concluded that the death of Father Anderson did not enliven its power to stay the proceedings. Getting help from an abuse lawyer The complexities of abuse compensation claims can often be a barrier to survivors pursuing damages for the pain and suffering they experienced due to their abuse. Our abuse law team is always cognisant of the added difficulties many survivors experience in deciding to seek compensation. At Hall Payne, we use a trauma-informed approach to work with you through this difficult journey. We listen carefully to your story and help you understand your options, and we can also work with your support network, including family, health professionals and counsellors, to ensure you are supported at all times. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/january/high-court-win-abuse-survivors/ Sun, 14 January 2024 00:00:00 On 7 December 2022, the Federal Government passed the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), which introduced several new workplace laws. One significant change was the introduction of Part 3-5A of the Fair Work Act 2009 (Cth) ( FW Act ), which prohibits sexual harassment in connection with work and came into effect on 6 March 2023. Before this legislative change, the Fair Work Commission ( FWC ) had powers to make orders to stop sexual harassment under Part 6-4B of the FW Act . This power was introduced as part of amendments to the FW Act in 2021, which expanded the FWC’s pre-existing powers with respect to workplace bullying to also apply to sexual harassment. As with workplace bullying, however, the FWC’s power to make a ‘stop sexual harassment’ order was limited to circumstances in which there was an ongoing risk of sexual harassment. Financial penalties could only be imposed by a Court where sexual harassment subsequently occurred contrary to a stop sexual harassment order made by the Commission. You can read more about the old protections in our earlier blog, “Sexual harassment in the workplace: Australia’s first stop sexual harassment case” . Sexual harassment definition under the Fair Work Act The FW Act adopts the definition of ‘sexual harassment’ that is provided under the Sex Discrimination Act 1984 (Cth), namely: 28A Meaning of sexual harassment For the purposes of this Act, a person sexually harasses another person (the person harassed) if: the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or engages in other unwelcome conduct of a sexual nature in relation to the person harassed; in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. The prohibition The new prohibition on sexual harassment in connection with work is provided by s.527D of the Act: A person (the first person ) must not sexually harass another person (the second person ) who is:   a worker in a business or undertaking; or seeking to become a worker in a particular business or undertaking; or a person conducting a business or undertaking; if the harassment occurs in connection with the second person being a person of the kind mentioned in paragraph (a), (b) or (c). New workplace sexual harassment protections introduced in March 2023 The new sexual harassment provisions , which stand apart from the ‘stop bullying’ regime, retain aspects of the previous provisions introduced in 2021. The FWC maintains its power to make ‘stop sexual harassment’ orders where there is a risk of sexual harassment in the future. However, in addition to this, an aggrieved party may now make an application for the FWC to deal with a sexual harassment dispute, including through conciliation, mediation, and by making recommendations. These provisions essentially mirror those that relate to having general protections disputes at the FWC. If all reasonable attempts to resolve the sexual harassment dispute via these processes are unsuccessful, the FWC may arbitrate the dispute, but only with the consent of both parties. This is an unfortunate weakness of the new provisions, as based on our experience in other areas, respondents may well be unlikely to agree to arbitration. In the event that there is consent, at arbitration the Commission is expressly empowered to make awards of compensation and remuneration for lost income and orders requiring a respondent to perform any reasonable act to redress loss or damage suffered by the applicant. If there is no consent to arbitration, then the Commission can issue a certificate, and the aggrieved person can then proceed to Court. If this occurs, the Court is then empowered to impose penalties for the contravention of the sexual harassment prohibition, along with compensation and other remedies. In addition, the protections now apply to sexual harassment ‘in connection with’ work, which is wider than the previous requirement that sexual harassment occurred "at work". Employers can also be held vicariously liable for sexual harassment done by its employees, provided that the sexual harassment occurred in connection with their employment. An employer will not be held liable where they can show that they took all reasonable steps to prevent the employee from doing the sexual harassment. Significance of the new sexual harassment laws for workers? The new sexual harassment protections represent a widening and strengthening of the previous protections. The introduction of the prohibition on sexual harassment brings with it a new potential cause of action to potential applicants. In addition to orders to stop future sexual harassment, workers now benefit from the possibility of a final determination of sexual harassment complaints, including the possibility of compensation and penalty. While arbitration and court determination require that conciliation and mediation options have first been exhausted (and in the case of arbitration, consent of the respondent), this is certainly a positive step in the direction of stronger protections against sexual harassment in the workplace. This is particularly the case in light of the introduction of the ‘positive duty’ on all employers to take proactive reasonable steps to eliminate sexual harassment in the workplace . Get help from an employment lawyer If you, or someone you know, is experiencing sexual harassment in the workplace and you’d like advice or assistance about your legal options under the new protections now available, our employment law teams across the country are able to assist. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2024/january/sexual-harassment-protections/ Mon, 08 January 2024 00:00:00 People injured on the road in NSW can claim compensation and a range of other benefits if they meet the eligibility criteria. From 1 April 2023, significant amendments to the Motor Accidents Injuries Act 2017 (“the Act”), which governs NSW road accident compensation, were introduced.  These amendments change the way motor accidents are handled and the rights of injured persons. Accessing all your compensation and benefits after a motor vehicle accident is not always straightforward. It is strongly advised you obtain legal advice if you have been involved in a motor vehicle accident and suffered injury. A lawyer will guide you and help you determine the best course of action for your circumstances and advise you as to your rights.   GET ADVICE FROM A PERSONAL INJURY LAWYER:  1800 659 114 Key changes to NSW motor vehicle accident compensation from 1 April 2023 Change in motor vehicle accident compensation terminology Legislation governing motor vehicle accident compensation previously used language to describe different types of injuries that may be sustained in a road accident. The terms were “minor” and “non-minor”. Minor injuries were defined by the Act as: “ soft tissue injuries and psychological or psychiatric injuries that are not recognised psychiatric illnesses”. The term “minor injury” has now been replaced with the new term “threshold injury”. This has been done due to the fact the term “minor injury” was seen by many to trivialize an injury suffered by an individual and the impact upon them. Change to entitlements to weekly payments and medical treatment Previously, a person who was found to have sustained a minor injury (now called a “threshold injury”) or was deemed to be wholly or mostly at fault for a motor vehicle accident was only entitled to receive 26 weeks of weekly payments and medical treatment. With the changes, regardless of fault, all “threshold injury” claimants are now entitled to statutory benefits (weekly wage loss payments and medical expenses) for a maximum period of 52 weeks from the date of accident. This change came into effect on 1 April 2023 and applies only to motor vehicle accidents which occurred on or after that date. Reduction of weekly payments for contributory negligence In incidents where a person has been found to be partially at fault (“contributory negligence”) for the accident but not to a percentage of over 61%, weekly statutory benefits may only be reduced for the contributory negligence after 52 weeks from the date of accident (rather than the previous 26 weeks). This change came into effect on 1 April 2023 and applies only to motor vehicle accidents which occurred on or after that date. Threshold requirements Threshold requirements that were previously applicable to bring a claim for damages (ie, a common law claim due to the negligence of another person) against the nominal defendant (i.e., where the at-fault driver cannot be found or identified), now also apply to a statutory benefits claim. The nominal insurer will also be liable in common law damages claims in the same way. Where a vehicle is interstate registered, uninsured or unidentified, a person can make a claim through the nominal defendant, which means they do not go without adequate treatment or compensation. Time frames for the insurer to make a decision Previously, the insurer had to make a decision regarding a “threshold injury” within three months. This decision is now due in nine months. This change came into effect on 1 April 2023 and applies only to motor vehicle accidents which occurred on or after that date. Changes to the insurer’s internal review process A claimant is no longer required to seek an internal review from the insurer prior to lodging a medical dispute to determine the degree of permanent impairment (for lump sum payment claims). This will assist in speeding up the claims process and the resolution of medical disputes surrounding permanent impairment.   However, where an insurer has communicated its decision, prior to 28 November 2022 , not to concede an injured person’s whole person impairment is greater than 10% (the minimum requirement for permanent impairment claims), then an internal review must still be undertaken before the matter can be referred for medical assessment. Claims for modified common law damages A claimant is no longer required to wait 20 months to make a motor vehicle accident common law claim (a claim due to the negligence of another party/driver). Section 6.23(1) of the Act has been removed, which will now enable parties to resolve claims for common law damages at any time. In the past, parties were unable to resolve a claim within 2 years of a claim being lodged unless there was a concession by the insurer of the claimant exceeding 10% whole person impairment. The above does not remove the operation of section 6.32 of the Act, where an injured person is required to commence court proceedings in respect of their claim within three (3 years) from the date of the motor vehicle accident or within three (3) years from the date of death arising from the motor vehicle accident. Common law claims due to a motor vehicle accident are usually particularly complicated. Your lawyer will provide you with advice as to the lodgment of a claim for common law damages. Get help from a motor vehicle accident compensation lawyer in NSW The above key changes to motor vehicle accident compensation in NSW are by no means the only changes made to the Act. The NSW CTP (no-fault) scheme is complex and being aware of all the requirements is difficult. If you have suffered an injury, it is highly recommended that you seek the advice of an experienced personal injury lawyer to ensure you receive all benefits you are entitled to in a timely manner. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/december/nsw-mva-changes-april-2023/ Sun, 24 December 2023 00:00:00 Updated March 2024 Like many institutions (sporting, scouts, churches, schools, hospitals, aged-care etc), the prevalence of physical, psychological and sexual abuse, both historical and current, is becoming more exposed in recent years. Abuse compensation claims are on the rise, and abuse survivors’ rights and ability to make a claim have improved significantly, particularly with the abolition of time limits in 2018. In this blog, we specifically look at abuse compensation as a result of the negligence of sporting institutions. In the realm of sports, the recent revelation surrounding Perth Wildcat Kendal “Tiny” Pinder exposes the unsettling reality of sporting “heroes”. Pinder’s on-court success overshadowed his off-court predatory actions, and now, former Wildcat’s owner, Bob Williams, faces a groundbreaking civil action for failing to protect young fans from Pinder’s predatory actions. A recent article by ABC News exposes Pinder’s double life – a celebrated athlete on the court and a dangerous sexual predator off it. Sarah*, a historical abuse survivor, has stepped forward unveiling the trauma she endured as a young fan. This blog explores the negligence within sporting institutions, exemplified by the case of Pinder, and the subsequent legal pursuit of the team’s former owner, Bob Williams, for complicity in knowingly allowing abuse to persist in the pursuit of athletic success. Sarah is exploring a civil claim against Williams, seeking historical abuse compensation due to her experience as a vulnerable teenager at the hands of Pinder. Kendal “Tiny” Pinder’s sexual abuse – summary of the ABC article In 1988, a chance encounter turned into a nightmare for Sarah when Pinder, exploiting his fame, sexually assaulted her after offering her a ride home. Sarah was only 15 years old at the time. After the initial incident, Pinder continued to groom and sexually abuse Sarah. During Pinder’s career at Wildcats, he faced charges related to the assault of another 15-year-old girl, and later, he attempted sexual assault of a 17-year-old girl. Pinder’s criminal record includes convictions for sexually assaulting both a 20-year-old woman and a 16-year-old girl. Despite facing serious assault charges, Pinder continued to be associated with professional basketball teams, including the Wildcats and the Illawarra Hawks, who signed him as he got out of jail for one of these charges. In March 2024, Pinder was sentenced to eight years in jail after pleading guilty to sexual intercourse without consent and aggravated sexual assault. Negligence of Wildcat’s former owner – knowledge of sexual abuse Negligence in a legal context involves a breach of duty where an individual or entity fails to act with reasonable care, resulting in harm to others. Former Wildcat’s owner, Bill Williams, admitted to being aware of Pinder’s predatory behaviour. William’s awareness of Pinder’s misconduct and subsequent failure to address it can be seen as a breach of the duty to ensure the safety and well-being of those associated with the team. This case against Williams seeks to hold him accountable for his complicity in allowing a known predator to maintain contact with fans and his negligence in not preventing further harm, including sexual abuse. Accountability of sporting organisations This case highlights the significance of holding sporting institutes accountable in safeguarding their fans from abuse. Negligence by team owners or management in addressing known risks within their ranks can lead to legal consequences, particularly if such negligence contributes to further harm. This case will serve as a precedent for survivors seeking justice, indicating that those in positions of authority within sporting organisations can be held responsible for their failure to protect fans from known risks. The long-lasting trauma of abuse The long-lasting effects of abuse, such as the traumatic experiences endured by survivors like Sarah, extend far beyond the immediate incident. Survivors like Sarah often grapple with enduring trauma, impacting their mental health, relationships, and overall well-being. Hall Payne Lawyers recognize the gravity of these struggles and is committed to providing compassionate legal support. Our experienced lawyers understand the complexities of these cases and can assist survivors in navigating the legal process, including entitlements to seek abuse compensation, with sensitivity and care. Compensation for abuse survivors For survivors seeking justice, various schemes and avenues are available to address the financial and emotional toll of abuse. To learn more about the compensation schemes in Australia, visit our earlier blog, “Achieving the best compensation for survivors of childhood abuse” . Conclusion The case against Bob Williams (as owner of the Perth Wildcats at the time of the abuse) emphasizes the importance of holding entities (like sporting clubs, scouts, churches, schools etc) accountable for negligence in addressing misconduct. It encourages survivors to seek legal resources when organisations prioritise success over safety. The case becomes a crucial call for systemic change within sports organisations (and other institutions), emphasizing the need to prioritise morals and safety to prevent further harm and empower survivors on their path to healing and justice. Get help from an abuse lawyer Our  Abuse Law team  understands that for an abuse survivor, discussing the particular circumstances will be difficult, however, we believe it is important for survivors to know their rights and entitlements. At Hall Payne, we use a trauma-informed approach to work with you through this difficult journey. We listen carefully to your story and help you understand your options, and we can also work with your support network, including family, health professionals and counsellors, to ensure you are supported at all times. *ABC has chosen not to publish Sarah’s real name in order to protect her identity. Hall Payne Lawyers have used the same alias in this blog. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/december/abuse-in-sporting-orgs/ Sun, 10 December 2023 00:00:00 Hall Payne Lawyers and our client, the NTEU, recently had an excellent outcome in relation to misrepresentations made during the approval process for an enterprise agreement at a large university. The Full Bench of the Fair Work Commission determined the enterprise agreement was not genuinely agreed. The decision of the Full Bench in NTEU v Southern Cross University & Anor [2023] FWCFB 200 is significant not only for our client but also in that it develops and clarifies the test for determining when an agreement has not been genuinely agreed within the meaning of s.188 of the Fair Work Act 2009 (Cth) ( FW Act ), due to a misrepresentation or material non-disclosure by an employer in the course of bargaining. The decision also observes the importance of valuing and weighing the non-monetary impacts of a proposed agreement in considering whether the agreement passes the “better off overall test” (BOOT). Enterprise bargaining proposal by Southern Cross University Throughout 2022, Southern Cross University and bargaining representatives, including the NTEU (the Union), participated in negotiations for a replacement enterprise agreement. In November 2022, the University put an agreement it proposed to a vote of the employees. The University’s proposed agreement provided for a $750 one-off payment to employees “following commencement” of the agreement. Relevantly, between 1 and 4 November 2022 (immediately before and during the voting period), the University made several communications to staff regarding the $750 payment, including that it would be: paid to all current staff members, as opposed to those employed at the time of approval; and payable when the agreement was endorsed by a majority of staff, as opposed to when the agreement was approved by the Fair Work Commission ( FWC ). The University’s communications to staff regarding the $750 payment were: variously targeted at casual employees in circumstances where casual staff comprised more than 50% of persons on the roll of voters; made in the same communications in which the University encouraged persons to vote; and a financial inducement in the form of a sign-on bonus to vote in favour of the agreement. 1289 persons voted on the University’s proposed agreement – 605 voted no, while a relatively small majority of 685 voted in favour of the University’s proposed agreement. Approval of the enterprise agreement sought by the university On 15 November 2022, following the vote, the University applied to the FWC, under s.185, for approval of the agreement. The Union opposed approval of the agreement on several grounds, including that the proposed agreement had not been genuinely agreed and that it did not pass the “better off overall test” (BOOT). First instance: proceedings in the FWC The agreement approval application was the subject of a two-day hearing in the Commission. Hall Payne acted for the Union in those proceedings. Enterprise agreement not genuinely agreed The Union opposed approval of the agreement on several grounds, including that the proposed agreement had not been genuinely agreed due to: the University making misleading statements (regarding the $750 payment) ( Misleading Statements ); a failure by the University to establish that casuals invited to vote were employed at the relevant time ( Casual Eligibility ); and a failure by the University to establish the validity of the voter roll ( Voter Roll ). Misleading statements The Union argued that it could not be said that the agreement was genuinely agreed in light of misrepresentations made by the University immediately prior to and during the voting period regarding the $750 sign-on bonus. The issue in dispute was whether the communications were misleading, particularly for casual employees to whom the communications were primarily directed, and whether the communications were a reasonable ground for believing there was no genuine agreement. Casual eligibility Casual employees made up a majority of employees invited to vote. At issue was whether the casual employees who voted were, pursuant to s.181(1) of the FW Act, “employed at the time” the University requested the vote and were therefore eligible to vote. In opposing approval of the University’s proposed agreement, the Union contended that the Commission could not be satisfied, based on the arrangements under which they were employed, that casual employees who voted were, in fact, employed at the relevant time within the meaning of s.181(1) of the FW Act and eligible to vote. Voter roll The Union also contended that the Commission could not be satisfied that the University established the validity of the voter roll in circumstances where there were errors in the voter roll. The University accepted and the Commission found that that the roll of voters contained various errors. Better Off Overall Test (BOOT) Section 186(2)(d) of the FW Act provides that the proposed agreement must pass the “better off overall test” – that is, that each employee would be better off under the agreement than the relevant modern award. The relevant modern awards, in this case, contained terms restricting the use of fixed-term employment, as well as other beneficial conditions. The proposed agreement removed these restrictions, which meant that the University could use fixed-term employment for any position in any circumstance. The Union contended that the use of fixed-term employment is inferior to ongoing employment and that the removal of fixed-term restrictions and entitlements would increase the use of fixed-term employment at the University and cause job insecurity. FWC decision On 18 August 2023, the Commission concluded that the University’s proposed agreement passed the BOOT test and that the requirements for approval, including that the agreement had been genuinely agreed, had been met. On the issue of misrepresentations, the Commission was not satisfied that the communications made by the University were misleading or that there was any evidence of any employee being misled by them, such as to affect the outcome of the vote. Whilst the Commission accepted there were errors in the voter roll, it determined that a majority of employees who would be covered by the proposed agreement cast a valid vote to approve it. The Commission also found that the casual employees were “employed at the time”. The Commission considered that rates of pay under the proposed agreement were significantly higher than those in awards and that this meant that employees under the proposed agreement would be better off overall, notwithstanding removal of restrictions on the use of fixed-term employment and other entitlements. Appeal: proceedings before the Full Bench of the FWC The Union appealed the Commission’s decision to approve the agreement. Hall Payne acting for the Union at the appeal. The appeal focused on: whether casual employees were “employed at the time”; whether the agreement had been genuinely agreed in light of communications regarding the sign-on bonus; and whether the agreement passed the BOOT test in light of provisions concerning fixed-term employees. The Full Bench found that the communications were misleading. [28] These representations, in their various forms over this three day period, were misleading. They incorrectly stated that the sign-on bonus was payable upon endorsement of the Agreement by a majority of staff (that is, should the Agreement be voted up by a majority of persons voting) whereas in fact the Agreement provided for a sign-on bonus of $750 upon approval by the Commission (that is, should it be approved). In doing, the Full Bench agreed with the Union’s submission that it adopt the approach taken by the Courts in competition law – specifically observing that: [31] The Commissioner erred by applying the wrong test, by imposing a requirement for such evidence. Rather, in assessing the matter, the Commission should have considered whether it could reasonably be expected, including by common sense, and taking into account the context of the vote, that a sufficient number of employees would have changed their vote because of the misleading communications. The answer to that question is yes. [37] … The test is not whether evidence from a particular voter or voters [of being misled] is before the Commission. The test is whether the evidence taken as a whole, when considered objectively, leads to such a conclusion . The Full Bench considered that the misleading communications by the University meant that it was not satisfied that the requirements of s 186(2)(a) of the FW Act had been met (that the agreement was genuinely agreed) and that the Commission’s earlier decision to approve the agreement was made in error. On that point, the Commission observed (emphasis added): [49] …The decision to approve the Agreement was made in error because the University had inadvertently caused the voting period to be infected by misrepresentation which then reasonably called in question whether the Agreement had been genuinely agreed by a majority of voters . Full Bench quashes original approval of the enterprise agreement The Full Bench quashed the approval of the agreement due to the University’s misrepresentations. It did not consider it necessary to deal with the BOOT issue or whether casuals were “employed at the time”, given that the decision was affected by appealable error, which meant that Full Bench was not satisfied the agreement was genuinely agreed. On the issue of casuals, the Full Bench did, however, remark that this ground raised: “ substantive and important questions concerning when a casual is “employed at the time” within the meaning of s 181 particularly in the light of the somewhat discordant Full Bench decisions in McDermott and Noorton, and the subsequent High Court decision in Rossato.” On the BOOT issues raised by the Union at first instance and on appeal, the Full Bench acknowledged the Union’s argument that removal of restrictions on the use of fixed-term employment in the proposed agreement would result in greater job insecurity. On that point, the Full Bench observed the Commission’s failure to deal with the Union’s submission at first instance and highlighted the importance of weighing the non-monetary impacts of a proposed agreement in considering whether the agreement passes the BOOT test. Hall Payne Lawyers was proud to achieve this important outcome for the Union and its members. Get help from an employment lawyer This is an excellent case study for all unions and workers participating in enterprise bargaining. The win demonstrates the importance of seeking advice if you are not satisfied that your employer is participating in genuine bargaining or if there are any other concerns during the bargaining process. At Hall Payne, our team of award-winning employment lawyers have significant experience in enterprise bargaining matters and are able to assist you no matter what stage of the process you are in. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/november/nteu-fwc-win/ Mon, 27 November 2023 00:00:00 In this blog, we delve into the case of Matthew Leonard, a man who suffered life-changing physical and mental disabilities as a result of an assault after an altercation with a nightclub bouncer in Hobart in 2014. Mr Leonard sued the bouncer and the employer of the bouncer, and was awarded over $12,000,000 compensation. The incident that Matthew Leonard was involved in has been recently reported in an ABC news article, “Man awarded $12 million in damages after punch by Hobart nightclub bouncer in 2014”. As mentioned in the case summary below, Mr Leonard was found to have contributed, to a degree, to the injuries he sustained. However, this should not deter victims of assault or abuse investigating their rights and entitlements to personal injury compensation. We encourage individuals who have been assaulted or abused to seek legal advice early as time limits apply. Our abuse compensation lawyers can provide advice and assistance. GET ADVICE FROM A PERSONAL INJURY LAWYER:  1800 659 114 Case summary In 2014, Matthew Leonard, aged 28 at the time, was involved in an altercation with a bouncer outside a nightclub in Hobert. During the course of the altercation, the bouncer’s arm contacted Mr Leonard, and he fell to the ground. The fall resulted in Mr Leonard suffering a severe head injury. Mr Leonard remained an inpatient at the Royal Hobart Hospital for 40 weeks, including two months in the intensive care unit and seven months in the acute rehabilitation unit. Legal proceedings were commenced against the bouncer and the employer of the bouncer. CCTV of the incident was examined by the judge, with a determination that the security guard had “punched the plaintiff rather than pushed him, and the punch connected with his face” . The actions of the security guard were not considered self-defence by the court, and even had the security guard believed he needed to apply force in the circumstances, the force demonstrated by the CCTV was not appropriate in the judge’s view. Resulting injuries of the assault victim As a result of his injuries, Mr Leonard now requires: 24-hour care; a diverse range of medications; machine-assisted breathing at night; and behavioural regulation and support. Compensation in excess of $12,000,000 awarded Acting Judge Porter awarded damages of $12,490,640. This damages figure takes into account: loss of earning capacity; medical expenses; pain and suffering lump sum compensation; and the care Mr Leonard will require in the future. The majority of the damages were attributed to the estimated costs of future attendant care. However, it was noted that Mr Leonard bore approximately 20 percent of the total responsibility for his injury due to his antagonistic behaviour leading to the incident, which impacted the amount of damages awarded. Compensation available for abuse victims Under Australian law, individuals who have suffered physical or psychological injuries due to the actions of others may be eligible for compensation. This compensation can cover a range of damages, including: Pain and suffering : Victims can be compensated, with a lump sum payment, for the physical and emotional distress suffered by them as a result of the events. Medical expenses : Medical expenses incurred as a direct result of the injury can be claimed, including hospitalisation, surgery, medication, rehabilitation costs, and travel expenses to attend medical appointments. Loss of earning capacity : If the victim’s ability to work is diminished due to the injury, they can seek compensation for the income they would have earned (immediately after the injury and future earnings) if not for the injury. Future attendant care: In cases where victims require ongoing care and support, the cost of future attendant care, as well as assistive devices or home modifications, may be compensated. Get help from a personal injury lawyer It is essential for victims to seek legal advice and understand their rights and the compensation they may be entitled to under Australian state legislation. Hall Payne Lawyers specialises in helping abuse victims navigate these complex legal matters and secure the justice and compensation they deserve. If you or someone you know has been a victim of abuse, please contact our abuse team for support and guidance. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/november/assault-compensation-case/ Sun, 12 November 2023 00:00:00 On 6 June 2023, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2023 (Cth), dealing with flexible work arrangements, came into effect. Under the changes, the category of employees who make a change work request has been expanded to include when an employee or their immediate family/household members experience family or domestic violence.  Last year, we wrote about the proposed changes to employee flexible work arrangements, which you can read in our blog, “Changes to employee flexible work arrangements from June 2023” . Critical changes to flexible working arrangements which have now come into effect The changes expand on the pre-existing right for certain workers to request a change to their working arrangements that exists under section 65 of the Fair Work Act . In particular, they have introduced avenues for employees to appeal a decision by an employer to reject such a request. The amendments also oblige employers to genuinely try to reach an agreement with the employee. The changes also require that employers provide written reasons which explain the particular business grounds it relies on for refusing any request for adjustments to working arrangements. The changes introduce the avenue of appeal for an employee. The employee may approach the Fair Work Commission for a conciliation and arbitration of the matter if they challenge the employer’s response. The January 2023 decision of Ambulance Victoria v Natasha Fyfe [2023] FWCFB 104 provides guidance as to how these recent changes will be interpreted by the Fair Work Commission. Employee requests a change to shift hours which is denied The Applicant, Ms Fyfe, is a young mother with three children aged under 5 years old. She is also a paramedic for the Respondent (Ambulance Victoria), and her employment is covered by the Ambulance Victoria Enterprise Agreement 2020 ( AV Agreement ). The employee’s usual night shift commences at 6.00 pm and concludes at 8:00 am. She cannot work the full duration of this shift as she needs to be home until at least 6:30 pm and return home by 8:00 am in the morning so that she can care for her children while her partner is at work. The employee proposed that she commence night shift at 9:00 pm and end at 6:00 am. The employer refused this request. Fair Work Commission decision at first instance At first instance, the Commissioner considered whether the employer had reasonable business grounds to refuse Ms Fyfe’s request in the context of clause 23 of the AV Agreement (which provided a right to make the request) and in light of the recent legislative amendments. Although the amendments were not in force at the time of the Commissioner’s decision, he considered them in reaching his decision. The Commissioner observed that the onus of establishing reasonable business grounds lies with the employer. The Commissioner found that: the employer failed to hold discussions with the employee or genuinely try to reach agreement with her; the employee’s request would not result in unfunded shifts, as had been asserted by the employer; community needs would still be met under the employee’s flexible work arrangement; the impact of the arrangement on other employees was not a reasonable business ground. The Commissioner relied on earlier decisions which held that whether or not other employees have been granted flexible work arrangements is not a reasonable business ground for rejecting a new request; and the employer’s argument that, after Ms Fyfe’s request, it offered other flexible arrangements is not an answer to whether or not the decision to refuse the flexible work arrangement was fair. On this basis, the Commissioner concluded that the employer had failed to discharge its onus of establishing that it had reasonable business grounds to refuse the employee’s request. Full Bench decision The employer appealed the decision of the Full Bench of the Fair Work Commission. The Full Bench criticised the Commissioner’s interpretation of the AV Agreement, noting that the Commissioner erroneously considered that the employer was required to genuinely try to reach agreement with the employee. This was not in the wording of the AV Agreement, and the legislative changes were not yet in force. This, however, was not enough for the Full Bench to overturn the Commissioner’s decision. Instead, the Full Bench dismissed the appeal on the basis that the employer’s response to the employee’s request failed to engage with the list of reasonable business grounds set out in the Fair Work Act . In particular, the Full Bench was critical of the employer’s failure to: show that it had given weight to, or proper consideration to the employee’s personal arrangements and pressures, including that she had three children under the age of 5 to care for; and demonstrate that it had analysed the financial impact on its enterprise of the adoption of the flexible work request. For these reasons, the appeal was dismissed. Conclusion The Commission’s approach confirms that the onus is squarely on the employer to demonstrate that it had reasonable business grounds to reject a flexible work arrangement request and had otherwise complied with the requirements under the Fair Work Act . The decisions also demonstrate that employees may have an arguable claim, particularly in circumstances in which the written reasons denying a request fail to articulate all of the reasons for the refusal. Other flexible arrangements offered subsequent to the refusal are not relevant to determining the validity of the rejection. Employees may also have a claim if the employer has failed to genuinely try to reach an agreement with them. Although this was not required under the AV Agreement, the changes require that employers try to reach an agreement with employees in relation to flexible work arrangement requests. Get help from an employment lawyer Getting good advice quickly when such issues arise at work is critical. Hall Payne are award-winning employment lawyers . If you’re experiencing any issues related to your employment, you should seek assistance from your Union or a lawyer experienced in workplace law. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/october/flexible-work-request-case-review/ Sun, 29 October 2023 00:00:00 The Victorian Government’s Board of Inquiry (“the inquiry”) into child sexual abuse claims in Beaumaris Primary School and other government schools has taken a significant turn as it expands its scope to include six additional schools and uncovers allegations against two previously unnamed teachers. The inquiry, chaired by Kathleen Foley SC, has been steadfast in its mission to bring justice to abuse victims. The expansion of the inquiry has recently been discussed in an ABC news article,  “Beaumaris Primary School child sexual abuse inquiry expanded as two more alleged perpetrators named”. Expanding the scope of the inquiry Initially, the inquiry encompassed 18 schools. The scope has now broadened to 24 schools, with the inclusion of Bundalong South Primary School, Chelsea Heights Primary School, Cowes Primary School, Drouin South Primary School, Kunyung Primary School, and Warragul Primary School. This expansion underscores the gravity of the issue. Newly named alleged child sexual abuse perpetrators The inquiry had previously identified one perpetrator, Gary Arthur Mitchell. Mr Mitchell was convicted of multiple counts of child sexual abuse spanning the late 1960s to the early 2000s. Now, the inquiry has identified two additional perpetrators: Mr Grahame (Graham) Harold Steele and Mr David Ernest Keith MacGregor. Both perpetrators are former teachers at Beaumaris Primary School and other government schools. MacGregor remained an employee of the Education Department after conviction ABC News also revealed recently in an article  that the perpetrator, David Ernest Keith MacGregor, remained an employee of the department for seven years after his conviction for sexually abusing two of his students. The MacGregor case serves as a reminder of the vital role educational institutions play in protecting children. It underscores the need for reform and increased vigilance in safeguarding the welfare of children. In response to the inquiries, a spokesperson for the Victorian Education Department expressed deep regret for allowing David MacGregor to remain employed after his conviction. They acknowledged the need for reforms to ensure the safety and well-being of children in schools. These reforms, however, come too late for the victims of MacGregor’s abuse. The call for witnesses to make submissions In her statement, Kathleen Foley SC emphasised the inquiry’s commitment to identifying alleged perpetrators and the schools they worked in. She urged anyone with relevant experiences or information to come forward and assist the inquiry. For victim-survivors, family members, friends, and other witnesses who wish to make a submission or register for a private session, the deadline has been extended to 31 October 2023 . You can make a submission on the Board of Inquiry into Historical Sexual Abuse in Beaumaris Primary School website  or by calling 03 8301 0102 . The importance of child abuse survivors’ voices being heard Ms Foley stressed the significance of every individual having the opportunity to share their experiences, acknowledging that for many, this might be the first time they come forward. The inquiry is dedicated to providing support and safety for those who choose to participate. Ms Foley expressed her gratitude to those who have already submitted their stories and engaged in private sessions, acknowledging their strength and courage. Get help from an abuse lawyer Our Abuse Law team understands that for an abuse survivor, discussing the particular circumstances will be difficult, however, we believe it is important for survivors to know their rights and entitlements. At Hall Payne, we use a trauma-informed approach to work with you through this difficult journey. We listen carefully to your story and help you understand your options, and we can also work with your support network, including family, health professionals and counsellors, to ensure you are supported at all times. We encourage anyone who may have information relating to the Beaumaris Primary School Child Sexual Abuse Inquiry or any other child sexual abuse inquiries to make contact with Megan Stanley, Principal Solicitor at Hall Payne , as soon as possible. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/october/beaumaris-primary-school-sexual-abuse/ Tue, 10 October 2023 00:00:00 It is difficult for many to accept the proposition that they will never be able to go back to work after an injury or illness, particularly those who are injured or become ill at a young age. Those who claim TPD benefits after injury or illness often ask us if there are any options to return to work after receiving their TPD payout. As the insurance benefit amount is generally only paid to you on the basis that you are unlikely/unable to ever return to any suitable employment based on your prior work history, to return to the same or similar work might, in certain circumstances, be considered to be evidence of a possible fraudulent claim. It is our experience that clients quite often undertake retraining in order to return to some form of gainful employment that they can do which fits within their reduced capabilities and circumstances. That poses the question: “If I retrain after a TPD payout, will I be able to return to work in a new role?” Returning to work after a TPD payout if I retrain or my health improves In some cases, clients who have previously received a TPD insurance payout may have completed a formal qualification or commenced retraining. Other times they have received additional or new treatment significantly improving their condition, which results in them being ready to return to work at some stage. As each application is assessed against different insurance policy provisions and definitions, there is no “one size fits all” answer, unfortunately. As a general rule, if an individual’s circumstances have changed since their claim was assessed and granted, they are not prevented from returning to gainful employment on the basis of having received treatment which has improved their illness or injury. Likewise, if they have taken the initiative to retrain into alternative work, and their insurance policy definitions allow it, they may be able to return to gainful employment. Newly emerging occupations available after a TPD payout Having received a benefit from a successful TPD claim, where the insurer accepted that your injury or illness prevented you from being able to work within the types of roles that you have experience and/or qualifications in, should not prevent you from returning to work within an industry or occupation that is a new or emerging one. Since the pandemic, we have seen a huge demand for food and grocery pick-up and delivery services. Pay-for-ride services like Uber are another form of employment that has become popular and more easily accessible to the general worker. Being able to drive your own vehicle in order to earn a living, in a role where you can set your own time schedule, which has flexibility and can cater to any reduced physical capabilities, is something that most people need when they have a total and permanent disablement. Of course, if you were a delivery or taxi driver prior to making a successful TPD claim, then continuing to work (or returning to work) in similar roles could be an issue for you in terms of the genuineness of your claim. Know the terms of your TPD insurance policy – “own occupation” vs “any occupation” It pays to know the basis upon which your TPD claim was accepted due to being totally and permanently disabled. Each insurance policy will have definitions that need to be satisfied in order to receive an insurance benefit. Some policies include a TPD definition that relates to the person’s “own or most recent occupation”. Alternatively, and more frequently, an “any occupation” definition could apply, which determines whether they are able to return to work within their education, training or experience. The latter type of assessment is more general and takes into account the whole of the individual’s work history and transferrable skills. Whether you return to some form of work after being accepted as totally and permanently disabled by an insurer/superannuation fund Trustee is ultimately a matter for you. However, it would be in your best interests to review your policy with regard to any retraining provisions that may be incorporated into the TPD definition and whether the policy includes any payback provision if you do start working again. If there is a payback provision, there is a prospect that the fund/insurer might seek recovery of some or all of the TPD benefit it made to you. Get help from a TPD lawyer At Hall Payne Lawyers, we assist with a range of disability insurance claims, including TPD, income protection and trauma insurance. We can help you understand what the basis of your claim acceptance was so you can make an informed decision on going back to some form of work. If you haven’t yet commenced your TPD claim, having someone on your side who understands the claims process as well as the insurer’s obligations and the legal terminology is often the difference between having your claim accepted or rejected by the insurer. If your claim has been denied, is taking too long or you have any other concerns in relation to TPD, income protection or death benefits, get in touch with a member of our superannuation and insurance team. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/october/return-to-work-after-tpd-payout/ Mon, 09 October 2023 00:00:00 It’s a common question: Can I claim worker’s compensation if my injury is an aggravation of a previous injury? The short answer is yes! In order to make any claim for worker’s compensation in NSW , your injury needs to have arisen out of or in the course of your employment. If this can be proven, you then move on to the next test, which is whether the employment was the main contributing factor to your injury or aggravation, acceleration, exacerbation, or deterioration of the disease injury. At this point, a distinction needs to be made in relation to whether an injury should be classified as a recurrence injury or an aggravation injury. A recurrence injury is when the symptom of a previous injury occurs again without any external cause. An aggravation is when symptoms of a pre-existing injury are increased by a new event. Proving your worker’s compensation claim is for an aggravation injury? If your worker’s compensation claim is due to an aggravation injury, you will need to demonstrate that the pre-existing condition was stable at the time of re-injury. Consider this example of a physical injury: Let’s say that a construction worker suffered a right shoulder injury approximately 2 years ago; The injured worker required surgery to their shoulder, which occurred 1 year ago; After appropriate rehabilitation training for 6 months, the injured worker returned to working their pre-injury role with no issues; Then whilst at work sometime later, the construction worker injures the same shoulder due to lifting a heavy object. This is a common example of an aggravation of a physical injury. The worker is eligible to claim worker’s compensation benefits due to aggravation of a prior injury. It is similar for psychological injuries. Consider this example of a psychological injury : Let’s say a worker had a psychological injury due to an external event occurring 10 years ago; At the time of this incident, the injured worker was seeing a psychologist, and the injury/illness was being managed with medication; The injured worker returned to work after time off and continued to manage the injury/illness with psychologist visits and medication; Over the last few years, the injured worker began experiencing significant bullying and harassment at work, which led to their psychological symptoms deteriorating; This led to seeing a psychologist more frequently and an increase in medication. In this example, the injured worker has suffered an aggravation of a pre-existing psychological condition due to the workplace bullying and harassment. They are eligible to claim worker’s compensation benefits due to aggravation of a prior injury/illness. The difference between “a substantial contributing factor” and “the main contributing factor” The standard of proof for a regular injury (that is, not an aggravation or exacerbation etc.) is that the injured worker’s employment needs to be a “substantial contributing factor”. However, when a worker’s compensation claim is made for an aggravation, the standard of proof changes to employment needing to be the “main contributing factor”. Whilst this may seem like a fairly minor difference, the test to prove an aggravation involves a more stringent connection with the injured worker’s employment. When looking at whether an injury is a substantial contributing factor, it leaves open the possibility of other, and possibly non-employment-related, substantial contributing factors to the injured worker’s injury. On the other hand, the requirement that the employment needs to be the main contributing factor only allows for one factor (being the employment) to be the cause of the injury or aggravation of the injury. Why has my aggravation of injury claim been declined? A common reason provided by insurance companies when declining your claim for an aggravation injury is that the incident that occurred at work was not the cause of your injury. Rather your injury was caused due to a previous injury you had sustained. A more recent and common reason worker’s compensation claims of this nature are declined is that the insurer may accept that you suffered an aggravation injury, however, they now believe that any ongoing symptoms you have are caused by the pre-existing condition. That is, they are of the view that the aggravation injury has ceased. What to do if your worker’s compensation claim has been declined? If a worker’s compensation claim is declined in NSW, the insurer is obliged to issue a ‘Section 78 notice’ together with all supporting evidence for denying the claim. These notices can be reviewed and/or disputed in the Personal Injury Commission. To review or dispute a worker’s compensation decision, you must have legal representation. You can read more detail about rejected claims in our earlier blog, “Help! My NSW worker’s compensation claim has been denied" . Get help from worker’s compensation lawyer in NSW As you can see, there are significant nuances to be considered when making a worker’s compensation claim due to an aggravation of a previous injury. Terms used and reasons provided by insurers to deny claims can be complicated. If your worker’s compensation claim has been declined for whatever reason, it is always important to seek legal advice in order to determine whether you can dispute the insurer’s decision. At Hall Payne Lawyers, our worker’s compensation lawyers are IRO-approved lawyers. This means that your legal fees and any associated costs to dispute the insurer’s decision is free. This includes fees to obtain an independent medical opinion which is crucial when disputing the insurer’s decision. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/october/workers-comp-injury-aggravation-nsw/ Mon, 02 October 2023 00:00:00 In February 2023, the Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Bill 2022 passed through Queensland Parliament. In recent years, there has been a growing recognition of the need to expand the legal framework for domestic violence beyond physical violence to include the complex dynamics of power and coercive control that often underlie abusive relationships. The introduction of the Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023 (Qld) (the Act ) to criminalise coercive control is a step forward in addressing domestic violence. What is coercive control? Coercive control involves a repeated pattern of behaviours that are aimed at maintaining power and control over a partner, often through tactics such as isolation, intimidation, and humiliation. These behaviours can create an environment of fear and dependency, which make it difficult for the victim to escape an abusive relationship. Coercive control has historically been challenging to address within the legal system because it didn’t always manifest as tangible and visible evidence such as bruises or wounds. This gap highlighted the need for legislation that acknowledged the full spectrum of abuse that victims may experience. The introduction of coercive control laws in Queensland marks a pivotal moment in the ongoing effort to protect individuals from emotional, psychological and manipulative forms of abuse that have been recognised as being just as damaging as physical harm. Hear Her Voice report prompts new coercive control laws Changes were introduced after the Women’s Safety and Justice Taskforce published its first report: Hear Her Voice – Report One – Addressing coercive control and domestic and family violence in Queensland . In March 2021, the Queensland Government established this Taskforce to examine coercive control and review the need for a specific offence of domestic violence and the experience of women across the criminal justice system. The report, published on 2 December 2021, made 89 recommendations for broad systemic reforms to Queensland’s domestic and family violence service and justice systems. In May 2022, the Queensland Government’s response to the report noted that they supported or supported-in-principle all of the recommendations. The changes to domestic and family violence laws The Act not only introduced new coercive control laws but also introduced other legislative reforms that were required to strengthen the Queensland Government’s response to coercive control. The Explanatory Memorandum explained: “The Bill implements these recommendations through amendments to the Criminal Code, the Domestic and Family Violence Protection Act 2012 (DFVP Act); the Evidence Act 1977 (Evidence Act); and the Penalties and Sentences Act 1992 (Penalties and Sentences Act). The Bill also amends the Youth Justice Act 1992 (Youth Justice Act) to address implications arising from these recommendations for children and child offenders.” The key amendments brought in by the Act include: The modernisation of the offence of unlawful stalking so that it reflects criminal behaviour, including the interaction between stalking and coercive control. This will capture the use of technology and social media used by perpetrators. Increasing the maximum penalty for stalking that occurs in the context of a domestic relationship to reflect the nature of, and damage caused by, that behaviour. Broadening the definition of domestic and family violence to include behaviours that occur over a period of time – a pattern of behaviour. Strengthening the Court’s response to applications and cross-applications for protection orders. Providing for costs provisions where a party has intentionally used proceedings as a means of committing or continuing domestic and family violence. Ensuring the Court is provided with respondents’ criminal and domestic violence histories to assist in determining the risk to the aggrieved and whether to make a protection order. Substituted service provisions where it is deemed that substituted service will provide increased protection to the victim. Expanding the class of protected witnesses for cross-examination by creating a new category of protected witness with respect to any domestic violence offence. Expanding the admissibility of evidence to include the history of the domestic relationship between a person and an intimate partner or family member of the person and removing restrictions on the admission of evidence in domestic violence proceedings relating to offences within Chapters 28 to 30 of the Criminal Code. The admissibility of expert evidence in criminal proceedings about the nature and effects of domestic violence. Providing the Court with a discretion to give jury directions to enable them to be better informed and able to consider evidence of domestic violence that has been raised during a trial. Penalties for breach of domestic and family violence laws Under the new laws, a person who repeatedly subjects their partner to physical, sexual, psychological or financial abuse may face imprisonment for up to seven years. The Queensland Government intends to introduce a Bill to establish coercive control as a standalone offence by the end of 2023. Coercive control laws in other states and territories New South Wales was the first Australian jurisdiction to formally introduce the criminalisation of coercive control as a standalone offence. Tasmania has criminalised some forms of economic and emotional abuse. Get help from a criminal lawyer If you’re a victim of domestic and family violence, including coercive control, we can assist you in seeking a protection order. Our criminal lawyers have significant expertise and experience in domestic violence matters and associated litigation and can provide you with advice and representation. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/september/coercive-control-qld/ Mon, 25 September 2023 00:00:00 It is our great pleasure to announce the promotion of Dale Blackmore to Principal Solicitor at Hall Payne Lawyers. Dale’s promotion reflects his extraordinary talent, dedication, and the high regard in which he is held by both our clients and peers. Dale has been an invaluable member of our employment and industrial law team, working predominantly with the firm’s organisational clients. One individual who has been instrumental in Dale’s growth is John Payne , founder of Hall Payne Lawyers. John has served as Dale’s mentor throughout his time at the firm and shared his thoughts on Dale’s journey: “I have had a number of trainee lawyers pass through my hands, many who have turned out to be exceptional lawyers leading the profession in their chosen calling. Dale will take his place in that group; he is also exceptional. He combines a quick wit with knowledge and hard work to deliver his legal practice. He is sought after by clients and admired by colleagues as he is calm and considered. I am so proud to have been associated with his journey and look forward to working with Dale in the years to come.” Dale has proven himself to be a trusted advisor and a respected figure within our firm. As Principal Solicitor, Dale will undoubtedly continue to excel in his new role. We extend our congratulations to Dale on this remarkable achievement, and we are excited to welcome his ongoing leadership within the firm. We look forward to his continued success at Hall Payne Lawyers. We encourage you all to join us in congratulating Dale Blackmore on this well-deserved promotion. https://www.hallpayne.com.au/blog/rss/blog/2023/september/dale-blackmore-promotion/ Fri, 22 September 2023 00:00:00 The length of time you spend employed by your employer is also known as your length of service. Your right to access certain entitlements in relation to your employment, and the size of those entitlements, can depend on your length of service with your employer. In this blog, we will only explore entitlements related to length of service for national system employees under the Fair Work Act 2009 (Cth) (‘ the Act ’). If you are not employed by a national system employer, the legislation that covers you will be different and will have a different definition for ‘length of service’. Who are national system employees? National system employees are: all employees in Victoria (with limited exceptions in relation to State public sector employees), the Northern Territory and the Australian Capital Territory; all employees on Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands; those employed by private enterprise in New South Wales, Queensland, South Australia and Tasmania; those employed by local government in Tasmania; those employed by a constitutional corporation in Western Australia (including Pty Ltd companies) – this may include some local governments and authorities; those employed by the Commonwealth or a Commonwealth authority; and waterside employees, maritime employees or flight crew officers in interstate or overseas trade or commerce. Considering absences from work when calculating length of service When we talk about length of ‘service’ related to the various workplace entitlements, we are generally talking about ‘continuous service’, which is a period of unbroken service with the one employer. When calculating your length of service, you will need to take into consideration any absences. Regardless of the type of workplace entitlement related to your length of service, you may not include any period of unauthorised absence when calculating your continuous service period. In other words, if you are absent from work without approval, you cannot count that time as service, even though you may still be employed with the same employer. Whether authorised unpaid leave counts as service will depend on the type of entitlement you are seeking. Your length of service is counted one way for your access to parental leave, flexible working arrangements and the amount of notice period required should your employment end (eg, by resignation, dismissal or redundancy), and another way for other entitlements. Length of service calculations for parental leave and flexible working arrangements Your entitlement to parental leave and your right to request flexible working arrangements are dependent on you completing one year of continuous service with your employer. This includes casual employees who have been employed on a regular and systematic basis for a 12-month period. For casual employees seeking parental leave entitlements, they must also have a reasonable expectation of continuing work with the employer on a regular and systematic basis had it not been for the birth or adoption of a child. When counting length of service for entitlements to parental leave and flexible working arrangements, you should include any periods of unpaid leave that you have taken with the approval of your employer. Examples of authorised absences when calculating length of service When calculating length of service for certain entitlements, you can include the following when authorised by your employer: Employer lockouts; Unpaid annual leave; Unpaid sick/carer’s leave; Unpaid bereavement leave; Study leave; Attending off-site conferences, etc. Notably, the above examples are relative to entitlements to parental leave, flexible working arrangements and notice periods (see below) but not, for example, for the accrual of annual leave entitlements. You can learn more detailed information about all your rights and entitlements for parental leave in our earlier blog, “Parental leave entitlements in Australia” . Length of service when calculating notice periods The amount of notice (or pay in lieu of notice) that you are entitled to at the end of your employment is dependent on your length of service. The Act sets out the minimum notice periods: 1 year or less of continuous service: 1 weeks’ notice More than 1 year and up to 3 years continuous service: 2 weeks’ notice More than 3 years and up to 5 years continuous service: 3 weeks’ notice More than 5 years continuous service; 4 weeks’ notice An additional week is payable if you are over the age of 45 and have completed at least two years of continuous service. You may include periods of authorised but unpaid leave when determining your notice period, as above. Other workplace entitlements related to length of service Other workplace entitlements that are connected to your length of service include, for example: your entitlement to apply for unfair dismissal; your redundancy entitlement; and how much annual leave or personal leave you have accrued. For these types of rights and entitlements under the Act , you may only include certain kinds of authorised unpaid absence in your calculations: If you are stood down without pay in accordance with your enterprise agreement or contract of employment; and If you are on community service leave. Any period of paid leave will still be counted when calculating your length of service. Examples of determining paid absences for other entitlements If you are unable to work because of a workplace injury and you are receiving worker’s compensation payments , this might still count as a paid absence. It will depend on the worker’s compensation legislation in your state or territory. If you are absent from work and you are receiving another kind of payment, such as motor vehicle accident compensation , or income protection insurance payments, this will be considered an unpaid absence. As there is no obligation for your employer to pay you under these circumstances, this type of absence will not count as service for this definition. Calculating your entitlement to long service leave Your entitlement to long service leave is based on your length of service, however, the entitlements are found in the legislation of each state and territory, rather than the Act . The way your long service leave is calculated, or the periods that will be excluded from your service, will depend on the legislation of the state or territory where you are employed. Get help from an employment lawyer As you can see, calculating length of service to determine access to various workplace rights and entitlements can be confusing and complicated. If you believe your length of service has been miscalculated or you have been wrongly denied access to an entitlement, you should seek legal advice. Our award-winning employment lawyers can assist you with any issues you are having in relation to length of service calculations and ensure you receive all the rights and entitlements you deserve. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/september/length-of-service-entitlements/ Sun, 17 September 2023 00:00:00 You have suffered an injury at work in NSW, lodged your worker’s compensation claim and Certificate of Capacity with the insurer, and you’ve been advised the claim is denied. Understanding the reasons your worker’s compensation claim is rejected will help you determine what your options are to appeal that decision and have it reviewed. Insurer is required to notify you of the decision to deny your NSW worker’s compensation claim The insurer will issue what is known as a Section 78 Notice. This is named after Section 78 of the Workplace Injury Management and Workers Compensation Act 1988 . This section requires the insurer to notify an injured worker if they are: denying a worker’s compensation claim; disputing an aspect of a claim; reducing or terminating weekly payments of worker’s compensation benefits; or reducing or terminating payment of medical expenses . The insurer has 21 days to accept or decline your claim. They may also provisionally accept your claim while they undertake further investigation. In some instances, the insurer will not actually include the wording “s78 Notice” in its correspondence to you. It may simply say “important information about your worker’s compensation claim”. Please ensure you read any correspondence from the insurer carefully. Insurer is required to stipulate the reasons for denying your NSW worker’s compensation claim The s78 notice will outline the insurer’s decision and the reasons why they have declined your worker’s compensation claim or made another adverse decision related to your claim. It will also attach any documentation they are relying upon to decline your claim. Under s.78, the insurer must include a copy of all documentation they have relied upon to come to their decision to decline your claim, together with reasons why liability has been declined. Some reasons your worker’s compensation claim may have been denied could be: a lack of information provided to the insurer – for example, the Certificate of Capacity completed by your treating doctor may not contain adequate detail regarding your injury; you suffer from a pre-existing condition that caused the injury or illness; the injury did not arise during the course of your employment; your employment was not a substantial contributing factor to your injury; if you suffered a psychological injury , the insurer could determine that your injury was caused by the reasonable action of the employer , in which case compensation is not payable; you may not be considered a “worker”; your employer does not agree with your description as to how or why your injury or illness occurred; expenses claimed may not be considered reasonable, or treatment was not considered to be “reasonably necessary”; you failed to lodge a claim within six (6) months of your injury or accident. There is some degree of flexibility with this time limit, and it may be extended in some circumstances. In these cases, it is highly recommended you seek the expert advice of a lawyer. GET ADVICE FROM A NSW WORKER'S COMPENSATION LAWYER:  02 8280 4100 Can I challenge a decision to deny my NSW worker’s compensation claim? If you have received a Section 78 Notice, this does not mean your right to claim compensation or your worker’s compensation case is over. You may just need the assistance of our experienced legal team. There are ways the insurer’s decision can be challenged. You can: request an internal review of the decision from the insurer; contact the IRO (the Independent Review Office); make an application to the Personal Injury Commission (PIC) of NSW. Requesting an internal review by the worker’s compensation insurer At the end of the Section 78 Notice there will be a form with the title Review Form . Using this form, you will be able to outline the reasons why you believe the insurer’s decision should be different and it also gives you the opportunity to attach any information or evidence to support your application. If this form is not included in the Notice, ensure you contact the insurer and ask for it to be provided to you. The insurer must respond to you, in writing, within fourteen (14) days of receiving the review request. The insurer will either decide to overturn or modify its original decision or maintain the decision to decline your claim. Quite often, requesting an internal review from the insurer doesn’t result in the decision being overturned or amended. Not only does the review process allow the insurer to address any inadequacies in the Section 78 notice, it also fritters away precious time when often the original Section 78 notice may be defective and more easily dealt with in the Personal Injury Commission. Contacting the Independent Review Office (IRO) Any worker can contact the Independent Review Office (IRO), if they are not satisfied, at any stage, with decisions being made about their worker’s compensation claim. IRO is an independent statutory office with a number of roles, including helping to find solutions to disputes by contacting the insurer on your behalf. When worker’s compensation disputes cannot be resolved, IRO may advise you to seek advice from a lawyer under the Independent Legal Assistance and Review Service (ILARS). The lawyer will review your case and might make an application to IRO to see if funding is available to help resolve the dispute in the Personal Injury Commission. GET ADVICE FROM A NSW WORKER'S COMPENSATION LAWYER:  02 8280 4100 Making an application to the Personal Injury Commission (PIC) of NSW If you do not want to seek an internal review directly with the insurer or you are not happy with the insurer’s decision after the review process, you can lodge what is known as an “Application to Resolve a Dispute” at the Personal Injury Commission. The Personal Injury Commission (or PIC) is a single, independent tribunal for injured people. It is not only for people claiming worker's compensation but also CTP insurance after a motor vehicle accident . The Personal Injury Commission helps resolve worker’s compensation disputes between injured workers and insurers/employers, including disputes related to: weekly payments and compensation; medical, hospital and related expenses; permanent impairment compensation ; work capacity decisions; compensation for domestic assistance (for example, help with gardening and housework). How much will a worker’s compensation lawyer cost me in NSW? Nothing.  That’s right, not one cent. When you use an IRO-approved lawyer, you are not required to pay any of that lawyer’s legal costs or any disbursement costs (costs of third parties associated with your claim) as these are all paid through the Independent Legal Assistance and Review Service, and you lawyer will be paid directly by IRO for all costs and disbursements. Hall Payne’s NSW worker’s compensation team are IRO-approved lawyers. As IRO-approved lawyers, we can: assist with the completion of a response to the insurer’s s.78 Notice; obtain all necessary medical evidence to support your claim; if required, attend the Personal Injury Commission teleconference with you; ensure all requests for lost wages and payment of past and future medical treatment costs are made. Get help from a worker’s compensation lawyer in NSW Being injured at work can be painful and stressful, not only for you but your loved ones as well, and while you can handle the dispute process on your own, it is best not to, and it is always best to seek professional assistance of a skilled worker's compensation lawyer who can fight for you to achieve the best outcome possible. Our personal injury team consists of IRO-accredited lawyers who are here to guide and support you every step of the way. We are able to seek funding from IRO to challenge the insurer’s decision in the Personal Injury Commission. We will obtain all necessary medical and factual evidence to dispute the insurer’s decision. This will include obtaining necessary clinical notes and medical records from any treating practitioners and hospitals you have consulted with or been admitted to in relation to your injury. We will also arrange for you to attend what is called an independent medical examination with one of our accredited specialists for the purpose of obtaining a medico-legal report to support your claim. We will also prepare statements. Once all our evidence is available to support your claim, we will file an Application in the Personal Injury Commission to have a Mediator appointed to hear and determine the dispute. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/september/workers-comp-rejected-nsw/ Mon, 11 September 2023 00:00:00 Australia has numerous regulatory and government bodies with extensive coercive powers, including specific regulators for sectors including health, financial services, energy, higher education, not-for-profit and aged care. Investigations undertaken by the various regulators often relate to employee behaviour and actions which may involve misconduct. It’s crucial for employees who are subject to, or anticipate being subject to, an investigation by a regulator to seek legal advice to protect their interests. There are a number of regulatory bodies whose investigative powers intersect with workplace and work-related activities. These include, for example: APRA (Australian Prudential Regulation Authority); ASIC (Australian Securities Investment Commission); AHPRA (Australian Health Practitioner Regulation Agency) ; ATO (Australian Taxation Office); ACCC (Australian Competition and Consumer Commission); and work health and safety regulators in Australian states and territories (for example, WorkSafe Victoria, Work Health and Safety Queensland). These regulators have quite extraordinary powers to monitor compliance and to investigate suspected misconduct and contraventions. Receiving formal notice or being the subject of, or even simply assisting an investigation by a regulator can be stressful and time-consuming. Seeking legal advice if you’re a party to an investigation can assist in protecting your interests. GET ADVICE FROM A EMPLOYMENT LAWYER:  1800 659 114 The information below is a general guide to dealing with regulators. Each regulatory body will have its own processes and procedures. Information gathering by regulators – is it a voluntary or compulsory process? Typically, a regulator will have the power to: require production of documents; compel disclosure of information; and/or require an individual to attend for examination or provide assistance with an investigation. Some regulators may also have the power to undertake surveillance, enter and search premises (with or without notice), seize documents or records, and interview individuals. Regulators often seek to obtain information informally. Different protections, or no protection at all, may attach to information provided to a regulator voluntarily. If you are unsure, at any point, whether you are required to provide information or participate in an examination, you should seek legal advice. GET ADVICE FROM A EMPLOYMENT LAWYER:  1800 659 114 If a regular has made contact with you, and you have been asked to provide information, it is important to consider and understand whether the regulator is making an informal request or if it is a formal requirement and you are compelled by law to provide the information sought by the regulator. Significant penalties, including imprisonment in some cases, can apply for failing to comply with a formal requirement to provide information or documents to a regulator. Compulsory examination Many regulators have the power to compel an individual to attend an examination and answer questions under oath or affirmation. Notice to attend for examination is usually provided in writing. Again, as the powers of different regulators may differ, if you are unsure if you are required to attend for examination or answer questions, you should seek legal advice. Confidentiality obligations Typically, if you are required by a regulator to provide information or answer questions as part of an investigation, strict confidentiality obligations may apply. This usually means that you will be forbidden from discussing the investigation and your examination with anyone except your lawyer. Right to refuse due to self-incrimination Depending on the regulator and the statutory framework that applies, you may have a right to refuse to answer certain questions on the basis that the answer to the question would disclose information that may tend to incriminate you. However, section 287 of the Superannuation Industry (Supervision) Act 1996 (Cth) and section 52F of the Banking Act 1959 (Cth), for example, provide that self-incrimination is not a reasonable excuse for a person to refuse to answer a question. A claim for privilege against self-incrimination under these statutory frameworks does not provide a person with the right to refuse to answer a question. Notably, however, an answer to a question that may tend to incriminate you is generally not admissible in evidence against the person in a criminal or penalty proceeding. Information you provide to a regulator may be shared with a third party It is important to remember that the information you provide during an investigation may later be used in court if the regulator decides enforcement action is necessary. You may also be subpoenaed to give evidence in court at a hearing of the matter. In many instances, other regulators and agencies, and even third parties, can request or be provided access to information obtained in the course of an investigation. For example, in Victoria, AHPRA may disclose information to Victoria Police where there is an allegation or evidence of an indictable or summary offence having occurred in the course of a registered practitioner’s practice. Likewise, other regulators may be required to disclose information to police where there is evidence or suspicion of criminal activity. Get help from an employment lawyer If your conduct is the subject of investigation by a regulator, or if you are concerned that information you may provide to a regulator could incriminate you, it is important to seek legal advice early to ensure that you properly access and claim the relevant privileges and protections that may apply in your case. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/september/australian-regulators-powers/ Mon, 04 September 2023 00:00:00 According to The Australia Institute , the average Australian worker performs 6 weeks of unpaid overtime a year, worth over $8,000 per worker per year. Managers and professionals experience the highest rates of unpaid overtime and excessive or unreasonable hours, followed by community and personal service workers. In this article, we look at: what is “reasonable” when assessing additional hours; employee rights to refuse to work additional hours; the practice of averaging hours of work; and a case review that saw significant penalties imposed on the employer for unreasonable additional hours. Recent high-profile cases alleging unreasonable additional hours In March 2023, the Finance Sector Union, represented by Hall Payne Lawyers, issued proceedings in the Federal Court against one of the big-four financial institutions on behalf of managers it alleges were required to work 55 to 80-hour working weeks: NAB faces big test case over excessive work hours . Sally Rugg, former Chief of Staff to Independent MP Dr Monique Ryan also issued proceedings earlier in the year seeking compensation for adverse action for refusing to work “unreasonable” additional hours. What constitutes “reasonable” or “unreasonable” additional hours, particularly in professional services, can be difficult to define. For a salaried, white-collar worker earning a relatively high income (and who may not necessarily be entitled to payment for working additional hours), existing case law has only limited application. What are the maximum weekly hours of work? The National Employment Standards (NES) are 11 minimum employment standards that have to be provided to all employees. The NES impose a limit on the number of hours an employee may be asked or required to work. In terms of maximum weekly hours, the NES provides (at section 62(1) of the Fair Work Act ) that an employer must not request or require a full-time employee to work more than 38 hours in a week unless the additional hours are reasonable . The NES further provides (at section 62(2) of the Fair Work Act ) that an employee may refuse to work additional hours, but only if the additional hours are unreasonable . What are “ reasonable ” additional hours? What are “reasonable” additional hours isn’t always clear and is to be determined on a case-by-case basis. It is important to note that while section 62(2) provides that an employee may refuse to work additional hours, it does not confer an unfettered right of an employee to refuse to work additional hours. The additional hours must be objectively unreasonable. In determining whether additional hours are reasonable, there are a number of factors to be taken into account. No single factor is determinative as to whether additional hours are reasonable or not. These factors are set out at section 62(3) of the Fair Work Act and include: any risk to employee health and safety from working the additional hours; the employee's personal circumstances, including family responsibilities; the needs of the workplace or enterprise in which the employee is employed; whether the employee is entitled to receive payment for working additional hours, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours; any notice given by the employer of any request or requirement to work the additional hours; any notice given by the employee of his or her intention to refuse to work the additional hours; the usual patterns of work in the industry, or the part of an industry, in which the employee works; the nature of the employee's role and the employee's level of responsibility; and whether any applicable enterprise agreement , award , or agreement between the employer and employee provides for averaging of hours worked, and whether the additional hours are in accordance with those terms. Refusing a request to work additional hours An employee may refuse to work additional hours, but only if the additional hours are unreasonable . An employer must not take adverse action against an employee because the employee has made a complaint or enquiry in relation to their employment, or has exercised a workplace right, or has the benefit of a workplace law. If an employer takes adverse action against an employee (such as demotion, docking the employee’s pay, or termination of employment) for refusing a request to work unreasonable additional hours, the employee may have a general protections or other claim.   Conversely, an employee should be careful not to unreasonably refuse a request to work additional hours. A direction from an employer to work additional hours could be a lawful and reasonable direction . Failure to comply with a lawful and reasonable direction may amount to serious misconduct , for which there can be significant consequences up to and including termination of employment. If your employer proposes to discipline you or terminate your employment for refusing a request to work additional hours, you should act quickly and seek legal advice. If your employment has been terminated, strict time limits may apply. GET ADVICE FROM A EMPLOYMENT LAWYER:  1800 659 114 Case review – significant penalties imposed on employer for unreasonable hours In  Australasian Meat Industry Employees Union v Dick Stone Pty Ltd , the Federal Court considered the factors set out at section 62(3) of the Fair Work Act . The Court ordered the employer to pay a total of $93,000 in penalties to the employee for contraventions of the Fair Work Act and relevant award, including contravention of the maximum weekly hours prescribed by the NES. Facts The employee was a knife hand/labourer. Relevantly, his employment contract stated he was expected to work 50 “ordinary work hours” per week – between 2/00 am and 11.00 am on weekdays and between 2.00 am and 7.00 am on Saturdays – plus reasonable additional hours as requested. The employee was covered by the Meat Industry Award 2010 ( Award ). What are “reasonable” and relevant factors On the operation of section 62, the Court said: [223]…Section  62  is part of the NES. As s  61(1)  makes explicit, it is a minimum standard which cannot be displaced. Its effect, as Dick Stone conceded in argument, is that the parties cannot contract out of it. It is unnecessary, at least at this point, to decide whether a condition of a contract of employment that requires an employee to work in excess of 38 hours is a “requirement” for the purposes of s  62(1)  because it is enough that the employer requests the employee to work the excess hours. The only circumstances in which the FW Act sanctions work by an employee in excess of 38 hours is if the additional hours are reasonable. In considering whether it was reasonable for the employer to require the employee to work 50 hours a week, the Court remarked that: [225] What is reasonable in any given case depends on an evaluation of the particular circumstances of both the employee and the employer having regard to all relevant matters including those matters mandated for consideration in s  62(2) ... The Court considered the factors set out at section 62(3), and gave particular regard to the health impacts of the additional hours, the employee’s personal circumstances (including being a recent migrant to Australia), as well as the needs of the employer: [230] …It is a fact of life that fatigue can affect alertness and concentration.  It is common knowledge that fatigue, particularly physical or mental exhaustion, can increase the risk of accidents at the workplace and, over the long term, contribute to a variety of diseases.  In a job requiring the use of knives and the lifting of heavy weights there are obvious risks. [232]… Mr Boateng was a very recent immigrant to Australia when he accepted Dick Stone’s offer of employment.  In all likelihood he had no knowledge of Australian law.  The evidence also discloses that Mr Boateng was a married man and that his wife gave birth to their first child on 1 December 2017. The Court found there was no evidence from the employer that there existed circumstances which made it necessary for the employer to structure its work practices in such a way that the employee had to work an additional 12 hours a week. Contraventions and penalties imposed on the employer Courts can make orders imposing penalties for contraventions and compensation. The maximum penalty for an employer found to have contravened a National Employment Standard (including section 62 “maximum weekly hours”) on or after 1 January 2023 is $82,500 and up to $165,000 for serious contraventions. The employer in this case was found to have contravened the Fair Work Act by requiring the employee to work 12 hours a week in excess of the maximum prescribed by s 62(1) of the Fair Work Act (38 hours for a full-time employee). The Court ordered the employer to pay a $30,000 penalty for this contravention. The Court also found the employer engaged in several other contraventions of the Fair Work Act and the Meat Industry Award, for which penalties were also ordered: failing to provide the employee with a Fair Work Information Statement as prescribed by the Fair Work Act ($3000); failing to pay overtime rates as required by the Award ($20,000); failing to make copies of the Award and National Employment Standards available to employees as required the Award ($25,000); and failing to post a roster showing the start and finishing times for ordinary hours as required in the Award ($15,000). The Court ordered the penalties be paid to the employee. The employer also paid the employee $13,271.34, being the agreed amount of unpaid wages.  Averaging of hours Modern awards and enterprise agreements can provide for “averaging” of hours of work, which allows for an employee’s average weekly hours to exceed 38 hours, provided the excess hours are reasonable. An employer and an award/agreement-free employee may agree to an averaging arrangement under which hours of work over a specified period are averaged. For full-time employees, the average weekly hours under such an arrangement must not exceed 38 hours a week. Lessons for employees For full-time employees, the NES provides for maximum weekly hours of 38 hours a week. However, an employer can require an employee to work additional hours beyond 38 hours a week, provided those hours are reasonable. If the additional hours are not reasonable, an employee can refuse to work the additional hours. What is reasonable (or unreasonable) is to be determined on a case-by-case basis. Employees should be careful not to refuse a reasonable request to work additional hours. Employers are prohibited from taking adverse action against an employee for refusing a request to work unreasonable additional hours. Get help from an employment lawyer If your employer is requiring you to work additional hours, or you think your working hours are excessive, or you’ve not been paid appropriately for working additional hours, you should seek advice from one of our employment lawyers. We can provide you with expert advice on your rights and entitlements. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/august/reasonable-additional-hours/ Sun, 27 August 2023 00:00:00 In May 2023, the Fair Work Commission ( the FWC ) determined that a group of nurses and nursing staff were not entitled to overtime pay for the time they spent testing themselves for COVID-19 before each shift ( Australian Nursing and Midwifery Federation v Johnson Stenner Aged Care Pty Limited [2023] FWC 943 ). This decision was reached in the specific context of nurses and nursing staff employed by Johnson Stenner Aged Care and covered by the Johnson Stenner Aged Care Enterprise Agreement ( the Agreement ), who work at various residential aged care facilities in Gladstone, Queensland. While the decision boiled down to the FWC’s interpretation of the Agreement, it raises broader questions of what activities constitute ‘work’ under enterprise agreements. This issue goes to the question of what kinds of rights attach to certain activities associated with work. Background In July 2022, Johnson Stenner introduced a requirement that all employees must test themselves for COVID-19 before each shift. Johnson Stenner supplied employees with rapid antigen tests ( RATs ), which each took 15 minutes to complete. Johnson Stenner issued a direction to employees, requiring them to: collect and take RATs home; complete a RAT prior to attending the workplace for work; provide photo evidence of their test result before starting work. The direction did not specify a time or place for testing. The Agreement, which provided entitlements relating to pay including overtime, applied to ‘all employees … performing work within the classifications contained in this agreement’ (emphasis added). The Australian Nursing and Midwifery Federation ( ANMF ), who represented the employees, argued that self-testing for COVID-19 was ‘work’ for the purpose of the Agreement. The ANMF highlighted that COVID-19 testing was a measure directed to the ‘prevention of illness’ and the ‘promotion of a safe environment’, both of which were listed under the Agreement as being types of ‘nursing care’. Therefore, the ANMF reasoned, the employees were entitled to payment for the time they spent self-testing before each shift. Case law related to what activities constitute ‘work’ To support their arguments, each party raised comparable cases which considered the boundary between work and non-work.         In ANMF v Jeta Gardens [2022] FWC 3039 ( Jeta ), which also involved nursing staff at an aged care facility, employees were directed to attend work 15 minutes early to undertake RATs at a particular location on site. In determining that this activity constituted ‘work’ under the relevant enterprise agreement, that decision highlighted that ‘infection control measures’ are consistent with the work of a nurse or personal carer. In Seo v Bindaree Food Group [2021] FWCFB 2691 ( Seo ), a Full Bench of the FWC determined that a requirement that an employee perform a range of activities at the employer’s instruction during his lunch break was consistent with the notion of work. In Hospital Employees’ Industrial Union of Workers v Proprietors of Lee-Downs Nursing Home 1977 WAIG 455 ( Lee-Downs ), the WA Industrial Appeal Court suggested that ‘time worked’ is time spent under the employer’s instructions, express or implied. The Court noted that this might include being in a certain place at a certain time or being ‘on call’ to act should a certain event arise. In Shop, Distributive & Allied Employees’ Association v Aldi Foods [2022] FedCFamC2G 799 ( Aldi ), Humphreys J determined that certain pre-commencement activities constituted ‘work’, such as: walking to a ‘materials handling equipment’ area; undertaking certain safety checks; driving to a central location at the worksite; collecting and checking a communication device; and recording information on a sign-in sheet. His Honour noted that these activities were not ‘private activities’ because they were of no benefit to the employee, in contrast to activities such as storing personal belongings, putting on uniforms, or putting on PPE. In TWU v Jetstar Services Pty Ltd [2017] FWC 2535 ( Jetstar ), Sams DP determined that approved leave, such as personal leave, was not ‘time worked’ for the purpose of overtime under the relevant agreement. In reaching this decision, Sams DP held that ‘time worked’ required that the employee was physically at work and performing work or other associated functions at the employer’s direction. FWC determines the nursing staff COVID self-testing was not considered ‘work’ The FWC ultimately concluded that the Johnson Stenner nursing staff were not ‘performing work’ under the Agreement when they self-tested for COVID-19 before attending the worksite. The FWC emphasised that this was predominantly a question of the terms of the Agreement, in accordance with the following principle articulated in Seo : ‘…whether particular activities constitute “work” within the meaning of an industrial instrument depends on the proper construction of the relevant instrument and the facts of the particular case.’ The FWC viewed the cases raised by the parties as ‘context specific’, noting that ‘none of them are on all fours with the facts in this case’ [117]. The FWC distinguished the circumstances of the Johnson Stenner employees, who: were not under a continual duty to act and could take the test at a time convenient to them [119]; were free to undertake private activities for most of the 15 minutes while awaiting the test result [119]; and were not required to be at the worksite or on-call, while performing the test, unlike the employees in Jeta [120]; The FWC also offered the following general observations: ‘work’ does not necessarily need to be performed at a certain place at a particular time [122]; the act of complying with a direction from an employer does not always amount to ‘work’, for example, a direction to maintain confidentiality [123]; and generally, performing a RAT under an employer’s direction is not a ‘private activity’ [124]. The FWC considered the totality of the work arrangements under the Agreement. The FWC discerned in the Agreement an intention that the employees work continuously, except for meal breaks, and an intention that the Agreement does not apply to duties performed remotely from the employer’s workplace or outside a specified work period, except when employees are ‘on-call’ [137]-[138]. The FWC concluded [141]: The Agreement in this case does not encompass payment for certain incidental duties, including for example, time taken for example to maintain professional registration, as required under the contract. It follows that the employees when undertaking a RAT in the manner in the specific circumstances of this case, as directed by the employer at a time of their own choosing before the commencement of their rostered hours of work, are not “performing work” as contemplated by clause 4 of the Agreement, and are not covered by the Agreement at that time. Significance for employees This decision examines the sometimes blurry line between work and non-work and the types of qualities that cause certain activities to be viewed as ‘work’ and to therefore attract certain workplace rights. These are questions that have taken on greater significance and uncertainty in the post-COVID-19 world. ANMF v Johnson Stenner [2023] FWC 943 demonstrates that the meaning of ‘work’ under an enterprise agreement rests predominantly on the terms of the agreement. However, it also underscores key factors such as the time or location at which an activity is required to be performed and whether the activity is of benefit to the employee or the employer. Get help from an employment lawyer If you’re covered by an enterprise agreement or award, and you’re unsure if your employer is interpreting and/or implementing the agreement appropriately, you should seek advice from your union or an employment lawyer. Clauses in agreements and awards are not always straightforward, and there can be occasions (as demonstrated by this case) where the event being contested is not a common occurrence. At Hall Payne, we have an award-winning team of employment lawyers able to assist you with any queries you have related to your workplace rights and entitlements. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/august/nurses-denied-pay-for-covid-self-testing/ Mon, 21 August 2023 00:00:00 Recently, Hall Payne Lawyers was privileged to represent a First Nations employee who was the victim of severe racial abuse in his role as an emergency switchboard operator at a major public hospital in the Northern Territory. Our initial victory was reported in our article “Compensation win for vulnerable victim of workplace racial abuse” . However, since then, Hall Payne Lawyers weathered two appeals made by the Northern Territory Department of Health (“the Department”), first to the Supreme Court of the Northern Territory and, second, to the Court of Appeal of the Northern Territory . Background Our client, Mr Noaks, was a First Nations worker at Alice Springs Hospital. He was employed to operate the emergency telephone switchboard. During his employment, his colleagues racially abused him frequently. They also played a cruel prank on him in which they orchestrated an emergency telephone call and made him believe that he was responsible for the death of a woman and her unborn child. Mr Noaks lodged a workers’ compensation claim for the significant psychological injury he suffered because of work. His claim was accepted, however, liability was subsequently ceased following a doctor's opinion that Mr Noaks’ psychological injury was pre-existing and was not a consequence of the distressing racial abuse and bullying in his workplace . Mr Noaks appealed the decision to cease his workers’ compensation claim to the Work Health Court (NT). In addition to arguing that they were right to cease Mr Noaks’ claim, the Department went a step further, alleging that our client had provided false information about his medical history, leading to the initial approval of his claim. After a four-day trial, the Court found in favour of Mr Noaks, firmly establishing that his psychological injury was a direct fallout from the racial abuse he endured at his workplace. Additionally, the Court dismissed the Department’s allegations of fraud, and Mr Noaks was awarded compensation for his previously denied workers’ compensation benefits and a significant portion of his legal expenses. This ruling offered our client a lifeline, providing him with access to essential medical treatment and setting the stage for the rebuilding of his life. Department appeals to the Northern Territory Supreme Court The Department appealed the decision to reinstate the workers’ compensation benefits to the Supreme Court. That appeal centred around, what the Department argued were, errors of law, including that the Work Health Court: failed to adequately consider relevant medical evidence about Mr Noaks’ mental health history; erred in determining that it was impossible to ascertain if Mr Noaks suffered from a diagnosable mental illness before the events at Alice Springs Hospital; was wrong to favour the opinion of one expert psychiatrist over another; was wrong to find that Mr Noaks’ psychiatric injury prevented him from working for the whole period of time from the date of the Department’s decision to cease the claim up until the date of hearing. Despite these arguments, the Supreme Court (Reeves J) dismissed the appeal, finding that there was no merit in the Department’s appeal. Further appeal to the Court of Appeal of the Northern Territory The Department appealed the Supreme Court’s decision to the Court of Appeal, arguing that Reeves J had erred in failing to accept the arguments made in the Supreme Court appeal. The Court of Appeal (Blockland, Brownhill JJ and Riley AJ) dismissed the appeal, finding that Reeves J had not erred in dismissing the Supreme Court appeal.   Worker’s compensation win delivers life-changing results The favourable conclusion of these lengthy legal proceedings had a profound and positive impact on Mr Noaks’ life. He is now eligible to access all the workers’ compensation benefits that were previously denied to him, with most of his legal expenses being covered because of his win. At Hall Payne Lawyers, we are immensely proud to have successfully advocated for our client, with his victory and the secured compensation paving the way for his recovery and enabling him to move forward with his life. Seek assistance from award-winning worker’s compensation lawyers If you live or work in the Northern Territory and find yourself: grappling with a workplace injury; exposed to workplace bullying or abuse; struggling with lodging a worker’s compensation or other personal injury claim; dealing with an insurer; appealing a rejected worker’s compensation or other personal injury claim; or appealing a decision about a personal injury or worker’s compensation claim, we invite you to consider reaching out to Hall Payne Lawyers. Our experienced team of Northern Territory personal injury and compensation lawyers are ready to provide expert advice, guidance, and support. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/august/nt-workers-comp-appeal-win/ Mon, 14 August 2023 00:00:00 In August 2021, the NSW government introduced the Public Health Order 2021 (COVID-19 Vaccination of Workers), which established mandatory COVID-19 vaccinations for health sector workers along with all public school and preschool staff. Two recent decisions in the NSW Personal Injury Commission (PIC) have awarded compensation to workers who suffered a psychological injury as a result of the employer’s implementation of the above vaccination public health order. Case 1: worker’s compensation claim for psychological injury related to vaccine mandates denied by insurer The case of Dawking v Secretary (Department of Education) [2022] NSWPIC 611 (3 November 2022), involved the Department of Education (the respondent) sending an email to all staff, including the injured worker, in August 2021 advising of the above NSW Health Order. In September 2021, the injured worker received a letter from the respondent advising that she would be found guilty of misconduct and face disciplinary action, including possible termination, if she was not double vaccinated by 8 November 2021. The respondent required proof of double vaccination or proof of a medical contraindication (indicating an exemption to the vaccine mandate) by 8 November 2021. The injured worker did not provide this, and she was subsequently terminated on 8 November 2021. In October 2021, the worker submitted a NSW worker’s compensation claim for weekly payments and medical expenses . The worker claimed she suffered psychological injury as a result of the implementation of the vaccine mandate by her employer. The insurer declined the injured worker’s claim on the grounds that the injury was wholly or predominantly caused by the reasonable action of the employer with respect of discipline. The injured worker then submitted an Application to Resolve a Dispute in the PIC. The PIC Member hearing the matter stated that the respondent: “has not produced any medical evidence to show that the action that it claims it took with respect to discipline, reasonable or otherwise, was the whole or predominant cause of injury.” The Member’s conclusion was that there was: “insufficient evidence for the respondent to show, on the balance of probabilities, the applicant’s injury was caused by action it took, with respect to discipline.” The PIC Member did go on to explain how they considered that the actions of the employer were unreasonable . They stated that in their view, the way the respondent implemented the public health order was not reasonable. This included the fact the respondent did not consider the potential impact a termination of employment would have on the injured worker’s re-employment once the public health order ceased. Case 2: worker’s compensation claim for psychological injury due to threat of termination of employment denied by insurer The case of Davis v Secretary, Department of Education [2022] NSWPIC 715  confirms the principles in the case of Dawking. That is, the onus is on the respondent to prove the actions of the employer were reasonable and that the reasonable action was the whole or predominant cause of the injury to the worker. The facts of this case involved the same public health order regarding vaccine mandates in NSW and the respondent sending correspondence to the injured worker stating that they would be found guilty of misconduct and face disciplinary action (including termination of employment) if they were not double vaccinated by 8 November 2021. The PIC Member hearing this case found that the injured worker did suffer a psychological injury that arose from the threat of termination of employment if they were not double vaccinated. The Member made clear that the onus is on the respondent (the Department of Education) to show that the injured worker’s injury was wholly and predominantly caused by the employer’s reasonable action (ie, the implementation of the government-prescribed vaccine mandate). In this case, like the case above, the respondent did not have independent medical evidence to determine what the whole or predominant cause of the injury was. The Member, in this case, did not find it appropriate to discuss whether or not the actions of the employer were reasonable. Final note It is important to note that in both of the cases, the insurer did not require the injured worker to submit themselves to an independent medical examination with a psychiatrist. The insurer sought to rely on the defence under Section 11A of the Workers Compensation Act 1987 (NSW ), which states that: “no compensation is payable if the worker’s injury was wholly and predominantly caused by the reasonable actions of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.” This defence is for the insurer to prove, rather than the injured worker being required to prove, that the employer’s actions were unreasonable. It remains to be seen what effect on a similar claim, if any, the respondent (the insurer) providing supportive independent medical evidence would have. What does this mean for workers’ psychological injury claims related to vaccine mandates? Both of these cases do not seek to determine whether vaccine mandates by State or Federal governments are legal. The cases also do not confirm that compensation is available for psychological injuries as the sole result of the vaccine mandate. Rather, these cases confirm the established principles of whether an employer has taken reasonable action with respect to discipline or dismissal. You can read more about NSW psychological injury claims in our previous blogs: NSW worker's compensation claims for psychological injury Reasonable action defence in NSW worker’s compensation claims for psychological injury Get help from a worker’s compensation lawyer in NSW Worker’s compensation claims for psychological injury can be complex. If you have suffered a psychological injury as a result of your employer’s actions, it’s important to seek advice from a lawyer experienced in the NSW worker’s compensation system. Seeking advice and assistance early can maximise the success of your claim. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/august/nsw-workers-comp-due-to-covid-vaccine-mandate/ Mon, 07 August 2023 00:00:00 A whistleblower may make a protected disclosure for a variety of reasons, including to expose wrongdoing or unlawful activity or to prevent harm to the public or the environment. In this article, we consider whistleblower protections in Australia, including: protected disclosure schemes; private sector whistleblowing; what is a ‘protected disclosure’; confidentiality and protection from victimisation; remedies, penalties and compensation; and privileges and immunity. High-profile cases that bring whistleblower protections into the public eye Whistleblower Jeff Morris ’ disclosures about financial planning practices at a big-four bank triggered several parliamentary inquiries and the Royal Commission into Banking Misconduct. More recently, for the first time, ASIC has commenced proceedings alleging breaches of whistleblower protections against a Queensland coal mine operator. The proceedings concern the alleged falsification of coal quality results, the making of false or misleading statements to the ASX and, relevantly, engaging in conduct that harmed the whistleblower (a former employee) who revealed the alleged misconduct. Whistleblower protection schemes Speaking out about wrongdoing or systemic misconduct can be stressful, and whistleblowers too often face retaliation and threats and significant personal and legal risk. The purpose of protected disclosure schemes is to provide certain protections to encourage and protect whistleblowers who report misconduct and wrongdoing, thereby promoting transparency, accountability, and good governance in public and private organisations. However, whistleblower protection laws can be incredibly complex. An extensive patchwork of state and federal laws exists in Australia to protect whistleblowers in the public, private, and not-for-profit sectors. Understanding which scheme applies and the qualifying criteria for protection can be difficult to navigate. Which whistleblower scheme applies? Which protected disclosure scheme applies can depend on: whether you’re a public or private sector employee; the relevant jurisdiction; the industry you work in; and the nature of the wrongdoing or misconduct being disclosed (ie. what it is you are “blowing the whistle” on). For example, a public sector employee who suspects wrongdoing in the Commonwealth public sector may be able to raise their concern under the Public Interest Disclosure Act 2013 (Cth). For the private sector, including in banking and finance, the Corporations Act 2001 (Cth) (Corporations Act) provides protection for certain whistleblowers. The Taxation Administration Act 1953 (Cth) also provides protection for disclosures about misconduct in relation to tax affairs. The Aged Care Act 1997 (Cth) offers limited protection for disclosures of wrongdoing in the government-funded aged-care sector, while the National Disability Insurance Scheme has its own protected disclosure scheme. Under the Corporations Act, public companies and large proprietary companies must have a whistleblower policy that provides information about what protections are available to whistleblowers, how the company will support and protect whistleblowers, and how protected disclosures will be investigated. In this article, we focus on the Corporations Act and whistleblowing in the private sector. What disclosures are protected under whistleblower laws? Where an eligible whistleblower discloses certain information to an eligible recipient, the whistleblower may be afforded certain protections, including in regard to confidentiality and protection from victimisation and detriment. To qualify for protection, disclosures must meet certain, specific criteria. It is important to note that the qualifying criteria for protection varies and depends on which scheme applies. The Corporations Act provides protection to whistleblowers making protected disclosures about specific regulated entities, including companies, corporations, authorised deposit-taking institutions (e.g. banks and credit unions), and certain insurers, superannuation entities and trustees. We explore some of the qualifying criteria for making a protected disclosure under the Corporations Act below. Eligible whistleblowers and eligible recipients Eligible whistleblowers Under the Corporations Act, an eligible whistleblower includes: an officer, employee or associate; a supplier or contractor, or an employee of a supplier or contractor; a spouse, relative or dependant of an employee, officer, supplier or contractor. Eligible recipients Disclosures must also be made to an ‘eligible recipient’. Under the Corporations Act, an ‘eligible recipient’ includes: an officer (e.g. a company secretary or director); senior manager; an auditor or actuary; ASIC or APRA; other persons authorised to receive disclosures. Disclosable matters The information being disclosed must be about a serious or systemic issue. Under the Corporations Act, a disclosable matter is one which involves the disclosure of information regarding ‘misconduct’ or an ’improper state of affairs’ in relation to a regulated entity (or an officer or employee of the regulated entity). This includes conduct which represents a danger to the public or financial system or a contravention of or offence against certain laws. With few exceptions, a personal work-related grievance of the discloser is typically not a matter to which whistleblower protections apply. For example, disclosures about the following types of individual grievances would generally not be considered protected disclosures: an interpersonal conflict; the terms or conditions of employment of the discloser; or a decision regarding the dismissal, promotion or transfer of the discloser. In these situations, other protections may be available under anti-discrimination or work health and safety legislation or the Fair Work Act 2009 (Cth). The exclusion of personal work-related grievances does not, however, preclude a disclosure from being a protected disclosure where it concerns an ‘improper state of affairs’ that has significant implications beyond the individual whistleblower. Good faith or reasonable belief? A whistleblower must also have reasonable grounds to suspect that the information being disclosed is true and correct. Under some schemes, to qualify as a protected disclosure, the disclosure must be made in ‘good faith’, while other schemes require that the whistleblower must have a reasonable belief or suspicion of a breach of the law or misconduct. Under the Corporations Act, a disclosure needn’t be made in good faith, however, the whistleblower must have reasonable grounds to suspect that the information concerns misconduct or an improper state of affairs or circumstances in the conduct of the business. The test is objective, and the whistleblower needn’t be in a position to prove the actual misconduct. Confidentiality obligations and protection from victimisation for whistleblowers Many schemes impose confidentiality obligations to protect the identity of whistleblowers and also prohibit the victimisation of whistleblowers. The Corporations Act prohibits the unauthorised disclosure of a whistleblower’s identity or information that is likely to lead to the identification of the whistleblower. Victimisation causing detriment (or threatening to cause detriment) for a reason which includes the whistleblower’s disclosure (or a belief or suspicion of the whistleblower’s disclosure) is also prohibited under the Corporations Act. ‘Detriment’ includes: dismissal or termination of employment; demotion; changing duties to the employee’s disadvantage; discrimination, harassment or intimidation; harm (including psychological harm); damage (for example, to property or to a person’s reputation, business or financial position). GET ADVICE FROM AN EMPLOYMENT LAWYER:  1800 659 114 Whistleblower compensation and penalties A whistleblower who suffers damage from victimisation or breach of confidentiality may be able to seek compensation for that damage. Many protected disclosure schemes also impose significant civil and criminal penalties for victimisation and breach of confidentiality obligations. Under the Corporations Act, the unauthorised disclosure of a whistleblower’s identity or victimisation causing detriment (or threatening to cause detriment) can result in significant financial penalties. For example, unauthorised disclosure of a whistleblower’s identity can attract criminal penalties (including up to six months imprisonment) or, for a company, whichever is the greater of: a maximum civil penalty of up $13,750,000; three times the benefit derived (or detriment avoided) by the disclosure; or 10 percent of the company’s annual turnover (up to $687,500,000).* * (current as at 1 January 2023) Privilege, immunity and other protections for whistleblowers Whistleblowers often face significant personal and legal risk when making a disclosure. Certain privileges and immunities may apply to a whistleblower making a protected disclosure. Under the Corporations Act, a whistleblower making a protected disclosure is protected from civil, criminal and administrative liability (including any disciplinary action) for making the disclosure. This does not necessarily mean that the whistleblower is protected from liability for conduct which is revealed by the disclosure. Provided the disclosure is, of course, a ‘protected disclosure’, the information is also not admissible in evidence against the whistleblower in criminal proceedings or civil penalty proceedings. Other protections under the Corporation Act for whistleblowers include: qualified privilege against defamation; no contractual or other remedy or right may be enforced or exercised against the whistleblower for making the disclosure (eg. breach of a term of the employment contract); the ability to make an anonymous ‘public interest disclosure’ to a journalist or member of parliament (additional qualifying criteria apply); the ability to make an ‘emergency disclosure’ in the case of substantial and imminent danger to health and safety or the environment (additional qualifying criteria applies). Get help from an employment lawyer If you have already made a disclosure or if you are considering doing so, or have suffered victimisation, it is important to understand the risks and any whistleblower protections that apply in your situation. If you are seeking representation or advice in relation to whistleblower protections or making a disclosure, you can contact us by phone or email to arrange a consultation with one of our employment lawyers for advice and assistance. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/july/whistleblowers/ Sun, 30 July 2023 00:00:00 If you’ve been injured at work in Queensland and you are in receipt of WorkCover benefits, you can change jobs, but it may have an effect on your worker's compensation claim . There are a lot of factual scenarios to consider if you’re thinking of changing jobs while you’re in receipt of workers’ compensation benefits. You’ll need to consider any effects on your statutory entitlements like weekly payments and also any impact on an entitlement to common law damages where your injury was caused by negligence. If you are planning on resigning from your job without another job to go to, you may also find our earlier blog useful, “Can I quit my job while on workers compensation?” Some of the relevant issues to be considered before switching careers or changing employers are listed below. Medical certificate and your capacity for work If you’re in receipt of WorkCover benefits in Queensland, you’ll be required to provide ongoing workers’ compensation medical certificates. Your medical certificate may have restrictions listed in terms of hours you can work, tasks you can and cannot do or general capacity. It is very important that you abide by the restrictions listed on your medical certificate. You need to ensure that you are medically fit to perform any new duties expected of you at the new workplace. Disclosure of pre-existing injury to your new employer If the injury will affect your ability to perform the duties expected, you will generally be required to disclose the injury to the new employer. For example, if you require some modifications at the workplace to enable you to perform your duties, given your injury, you will need to disclose the injury to your new employer. Failure to disclose this information can have a detrimental effect on any common law claim and/or any further WorkCover statutory entitlements; for example, if you were to aggravate your injuries at the new employer. WorkCover weekly benefits and medical expenses A change in job does not affect your entitlement to seek medical and rehabilitation expenses. However, your weekly payments may be terminated. There are various factors to be considered here, such as: your capacity for work; new weekly wages (did you get a pay rise or a drop in pay?); whether you are changing jobs following a dismissal; and if you are seeking a new role with duties more suitable to the restrictions imposed by an injury. A complete understanding of the details and facts related to your individual circumstances is required to understand your entitlements. You should seek immediate legal advice from your union or a worker’s compensation lawyer to protect your rights and entitlements. If there was an unfair dismissal involved, you should consult an employment lawyer immediately, as there are strict time limits for issuing unfair dismissal proceedings. GET ADVICE FROM A WORKER'S COMPENSATION LAWYER:  1800 659 114 Obligation to inform WorkCover that you are changing jobs You have an obligation to inform WorkCover Queensland if you are changing jobs. These obligations will continue to apply for the duration of your workers’ compensation claim or until any common law claim you may have, is resolved and finalised. Whilst in receipt of workers’ compensation benefits, it is important that you disclose: any alternate income sources; any voluntary or unpaid work; any second jobs; or if you commence a new role with a new employer. Failure to comply with your disclosure obligations whilst in receipt of workers’ compensation benefits can result in serious penalties to you. What if I have a common law claim and I get injured again at a new workplace? To be successful in a common law claim, you must prove liability; that is, that your employer or some other party who owed you a duty of care was negligent for the incident that caused your injuries. For a successful common law claim, it is important to establish causation; that being, a link between the negligence of someone who owed a duty of care, to the injury and resultant loss and damage. Obviously, a change in employment and a subsequent incident leading to further injury while your common law claim is active, may complicate the causal chain of your claim. Your existing common law claim will be affected if you sustain a new injury or aggravate the existing injury. A new incident leading to new or aggravated significant injury may also delay the resolution of your common law claim. In serious cases, a new intervening incident may break the chain of causation from the initial incident. This can have a detrimental impact on the damages that flow from the original incident. When considering causation, and the impact of any subsequent incidents/injuries, advice should be sought from an experienced personal injury lawyer.   Get help from a worker’s compensation lawyer It’s understandable that an injured worker may feel like moving onto a new employer. The work relationship might be strained or there may be a genuine fear of re-injury or a desire to move on to a less demanding role better suited to the changed circumstances. However, this is not a minor decision as it can impact your benefits and entitlements. If you are currently in receipt of workers’ compensation benefits and are considering changing jobs, we recommend you seek legal advice from a lawyer experienced in Queensland workers’ compensation and personal injury claims. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/july/change-jobs-on-workcover/ Mon, 24 July 2023 00:00:00 While compensation (instead of reinstatement) of up to six months’ pay is a common alternative remedy for unfair dismissal , reinstatement remains the primary remedy under the Fair Work Act. As Justice Bromberg once said (in Quinn v Overland (2010) 199 IR 40 ): “ dismissed employees are regularly reinstated ” in unfair dismissal cases; and the long-standing remedy of reinstatement is accepted “ as part of the industrial furniture. ” However, even in successful unfair dismissal applications, the Fair Work Commission often does not order reinstatement. It is important for prospective applicants to understand that although they might successfully demonstrate that their dismissal was unfair, the Fair Work Commission may find that the remedy of reinstatement is inappropriate. Due to this, when considering whether to make an unfair dismissal application, it is important to pause and ask: will I get reinstatement? The answer is, of course, subject to the inherent uncertainties involved with litigating the matter at the Fair Work Commission and will depend on several factors, including the merits of the case, the evidence led by the parties and the Commission’s ultimate findings about those matters. Still, four recent decisions of the Fair Work Commission in 2023 provide guidance as to the factors that influence whether reinstatement is a likely outcome; two in which reinstatement was ordered and two in which it was not. Cases where reinstatement was ordered after a successful unfair dismissal claim It has been observed ( Perkins v Grace Worldwide (Aust) Pty Ltd ) that reinstatement can only be ordered when, despite the dismissal, a relationship of trust and confidence between the employer and employee remains intact. This was a significant factor in the recent decision of Pelly v Ventia Australia Pty Ltd [2023] FWC 907 . (‘Pelly’) . In that case, the dismissal of a former firefighter was found to be unfair. The Fair Work Commission found, based on the evidence, that the relationship of trust and confidence between the parties had not broken down. The applicant obtained reinstatement given that: he was a “ model employee ”; and notably, the employer’s representative, in that case, said that if the applicant returned the work, he would expect him to be “ very professional ” and he didn’t see any issues with the applicant returning to work. Another factor in Pelly was that the applicant had moved to Victoria to work with the respondent employer. The Fair Work Commission was sympathetic to the hardship that a further relocation would cause if reinstatement was not ordered (and the applicant had to relocate to find alternate work as a firefighter). In Weston v Coal & Allied Mining Services Pty Limited [2023] FWC 93 (‘Weston’) , the applicant succeeded in demonstrating his dismissal was unfair. This was despite the reason for his dismissal, being that he threatened a co-worker, was found to be a valid reason for termination of employment. During the unfair dismissal case, the applicant demonstrated that the dismissal was harsh and disproportionate to his misconduct. The Fair Work Commission observed that the onus is on the party asserting that there is a loss of trust and confidence (usually the employer in their attempt to avoid reinstatement). Further, in misconduct cases, the Commission stressed the importance of the applicant demonstrating contrition, remorse and a proper understanding that the behaviour was wrong. The applicant succeeded in obtaining reinstatement in circumstances in which his evidence showed he accepted that his behaviour was unacceptable. The Commission was:         “ persuaded that he [the applicant] understands that his conduct. was inappropriate, unacceptable and must not be repeated… [he has] shown contrition .” Another significant factor was the applicant’s “ long (12 years) period of unblemished service ” with the respondent employer. Cases where reinstatement was not ordered after a successful unfair dismissal claim In another misconduct case, Steed v Active Crane Hire Pty Ltd [2023] FWC 15 (‘Steed’) , the applicant, who had slept while on duty, succeeded in his unfair dismissal claim on the basis that he was denied procedural fairness. However, reinstatement was not awarded to the applicant on the basis that: the Applicant had “ shown no contrition or remorse for his conduct ”; and there was still “ clear animosity between the applicant and the Respondent’s management .” This case can be contrasted to cases where reinstatement is ordered. In particular, unlike the applicant in Weston , the Applicant in Steed had not shown remorse for his conduct. Further, in contrast to Pelly , there were low prospects for a smooth return to work for the applicant in Steed, particularly in circumstances in which animosity existed between him and his former employer. The relationship between the parties was also the determinative factor in Corin Davoren v Pejr Business Aviation Pty Ltd [2023] FWC 239 (‘Davoren) . In that case, the applicant succeeded in establishing that she was unfairly dismissed on the basis that her impugned conduct was, the Fair Work Commission concluded, consistent with her duties. However, the evidence demonstrated that the relationship between the parties had lost trust and confidence. The Fair Work Commission observed that: “ the relationship between the Applicant [and the Respondent] has irretrievably broken down. Accordingly, I have decided that reinstatement is inappropriate. ” Primary considerations for reinstatement after an unfair dismissal win Although reinstatement has been observed by the Federal Court to be “ part of the industrial furniture ”, the inherently uncertain nature of litigation means it is never a certainty. As Steed and Davoren show, it is common for employees to succeed in unfair dismissal applications, only to be disappointed that they have not been reinstated to their former role. The case law demonstrates that the relationship of trust and confidence must not be “ irretrievably broken down ” if a former employee is to obtain reinstatement. A factor in favour of employees seeking reinstatement is that the onus is on the employer to show a breakdown in trust and confidence. It will not, however, simply be a matter of the employer asserting a loss of trust and confidence. The Commission will instead consider for itself whether this is objectively the case. Like the applicant in Pelly , dismissed employees will have a better chance of obtaining reinstatement if they can also show that they have a professional record and their return to work can be facilitated smoothly without disrupting the respondent employer’s enterprise. In misconduct cases, former employees should also demonstrate remorse and contrition, like the applicant in Weston . Applicants who have engaged in misconduct are far less likely to obtain reinstatement if they have not accepted wrongdoing. Hardship caused to the employee, such as needing to relocate to obtain other work, will also be a relevant factor, along with an unblemished or strong record of employment, such as in Weston . Get help from an employment lawyer Litigation is an uncertain process. Prospects of reinstatement after unfair dismissal are influenced by many factors. Ultimately, the prospects of a particular case will depend on the evidence and how the case is presented. If you are contemplating an unfair dismissal application, it is important that you seek advice either from your union or from a lawyer experienced in employment law. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You might also like to read: Worker's job reinstated after unfair dismissal Sacked Sydney bus driver reinstated Difference between unfair dismissal and wrongful dismissal https://www.hallpayne.com.au/blog/rss/blog/2023/july/reinstatement-after-unfair-dismissal/ Sun, 16 July 2023 00:00:00 Two Fair Work Commission ( FWC ) decisions in 2022 considered the circumstances in which a casual employee will be protected from unfair dismissal . These FWC decisions were influenced by recent High Court decisions on the importance of written employment contracts in determining the nature of an employment relationship. This post looks at the unfair dismissal protection for casual employees and the impact of those recent FWC decisions. How can a casual employee qualify for protection from unfair dismissal? To qualify for protection from unfair dismissal, an employee needs to show that their service meets the minimum employment period, which is 6 months or 12 months for small business employers. However, under the Fair Work Act 2009 ( FW Act ), a casual employee’s service doesn’t count unless they can show that their employment was regular and that they had a reasonable expectation that the employment would continue on a regular and systematic basis. Section 384(2)(a) of the FW Act provides: (a) a period of service as a casual employee does not count towards the employee’s period of employment unless: (i)     the employment as a casual employee was as a regular casual employee; and (ii)    during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis… Determining if the casual employment is “regular and systematic”? In Angele Chandler v Bed Bath N' Table Pty Ltd [2020] FWCFB 306, the Full Bench of the Fair Work Commission considered the ‘regular’ component of the applicant’s employment was established by the frequency of her engagements. In this case, the employee worked at least one shift in every week of her employment and 3-4 shifts per week for 30 of the weeks she was employed. The ‘systematic’ component was established by the fact that her employment was arranged pursuant to an identifiable system, being a monthly roster, which listed Ms Chandler and other casual employees’ shifts. The Full Bench applied the same principle as recently as 2020, in Amy Greene v Floreat Hotel Pty Ltd [2020] FWCFB 6019 (11 November 2020). “That it was regular is demonstrated by the agreed Timesheet Records… They show that… Ms Greene was consistently engaged to work substantial numbers of hours in every week. It was systematic because… she worked in accordance with a roster that was established by Mr Dalli in consultation with her… We consider that regular casual work undertaken in accordance with an established rostering system may reasonably be described as systematic in nature.” Is the casual employee’s expectation of continuing work “reasonable”? The second part of the test under the FW Act is whether a casual employee had a “reasonable expectation of continuing employment by the employer on that same regular and systematic basis”  during their period of service with the employer. Recently, the Fair Work Commission has considered High Court decisions in interpreting and applying the reasonableness requirement to determine whether particular casual employees are protected from unfair dismissal. In 2022, individual members of the FWC considered this question in two cases: Liting Gu v Geraldton Fishermen's Co-operative Pty Ltd [2022] FWC 1342 (3 June 2022) ( Gu ); and Kumnick v FedEx Express Australia Pty Ltd [2022] FWC 2432 ( Kumnick ). Gu – written employment contract negates protection from unfair dismissal In Gu, Deputy President Beaumont determined whether a casual employee, Mrs Gu, was protected from being dismissed by her employer, Geraldton Fisherman’s Co-Operative. The Deputy President looked to the contract of employment between the parties in reaching her decision: “[43] Mrs Gu’s employment contract negated ‘expectation’ by providing that, ‘[F]or the avoidance of doubt, nothing in this letter is intended to give rise to a permanent employment relationship, or an expectation of regular, ongoing engagements. There was no evidence before me to suggest that the parties had departed from that which was agreed in respect of the expectation.” In this decision, Deputy President Beaumont considered that the written contract was powerful enough to negate the expectation of continuing employment on a regular and systematic basis. Notably, in that matter, the Deputy President did not have evidence of the hours actually worked by Mrs Gu when making this decision. Kumnick – FWC finds casual worker has protection from unfair dismissal In Kumnick, Deputy President Anderson found that a casual employee was entitled to protection from unfair dismissal in circumstances where the employee had signed a letter of offer including the words “ The Company makes no commitment to provide you with regular or ongoing employment.” Deputy President Anderson looked at the way FedEx structured Mr Kumnick’s employment with a weekly roster and notified him of his rostered shifts in advance. Mr Kumnick worked for 4-5 hours most Fridays and sometimes on Tuesdays and Thursdays. Deputy President Anderson considered that FedEx’s reliance on Mr Kumnick was ‘material’ and that there was an established and identifiable system by which he was offered casual work. Ultimately, the Deputy President found that Mr Kumnick was protected from unfair dismissal, despite the fact that the wording of his contract ‘weighed against a finding that a reasonable expectation existed.’ High Court decisions impact casual employees’ eligibility for unfair dismissal protection The Fair Work Commission’s recent focus on the wording of employment contracts in considering whether a casual employee has a reasonable expectation of continuing employment has been influenced by two High Court decisions: Workpac Pty Ltd v Rossato & Ors [2021] HCA 23 ( Rossato ); and CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 ( Personnel Contracting ). In Rossato, the High Court considered whether an employee classified as a casual employee was entitled to leave benefits reserved for non-casual employees. In Personnel Contracting, the High Court looked at whether a worker was an employee or an independent contractor. In both cases, the High Court emphasised the importance of the written employment contract in determining the nature of an employment relationship. Although the High Court did not directly consider the issue of regular and systematic casual employment in the context of s 384(2) of the FW Act in Rossato or Personnel Contracting, these decisions have still had a significant impact on the FWC’s consideration of unfair dismissal protections for casual employees. We expect this issue may well become one for appellate consideration in the near future. Get help from an employment lawyer If you are a casual employee who has been dismissed and you feel that termination is unfair, you may be eligible to file an unfair dismissal application. Book a consultation with one of our award-winning employment lawyers to confidentially discuss your matter. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: Major changes for casual employees in 2021 Employee rights to convert from casual to permanent employment Casual vs part-time and full-time employee rights and entitlements https://www.hallpayne.com.au/blog/rss/blog/2023/july/casuals-unfair-dismissal-protection/ Sun, 09 July 2023 00:00:00 A March 2023 decision of the Federal Court has reaffirmed employees’ entitlement to a paid day off on a public holiday. It has also clarified s 114 of the Fair Work Act 2009 (Cth) ( FWA ) regarding how an employer can reasonably request staff to work on a public holiday, when an employee can reasonably refuse such a request, and the distinction between a request and a requirement. The decision On 28 March 2023, the Federal Court handed down its decision in CFMMEU v OS MCAP PTY LTD [2023] FCAFC 51 ( the Decision ). The employer, OS MCAP runs a coal mining operation at the Daunia Mine, near Moranbah in central Queensland. Around 85 employees were required to work on Christmas Day and Boxing Day 2019. At first instance, Justice Rangiah of the Federal Court found in favour of OS MCAP . His Honour disagreed with the CFMMEU’s contention that there was a distinction between a request and a requirement for the purposes of section 114(2) of the FWA. Further, Rangiah J held that the employer’s requirement was ‘reasonable’ for the purposes of section 114(4). As a result, there had been no breach of section 44 of the FWA. However, on appeal to the Full Court, the CFMMEU successfully argued that requiring employees to work on a public holiday was a contravention of the National Employment Standards ( NES ). The Decision of the Full Bench held, inter alia, that: an employee is entitled to a paid day off for a public holiday; if an employer wishes for an employee to work on a public holiday, they must make a request to that effect; an employee may refuse that request if either: the request is unreasonable, or their refusal is reasonable; a request differs from a requirement in that there is opportunity to refuse; and the following are not considered to be requests: a contract providing that an employee may be called upon to work public holidays; a roster that includes public holidays, where the staff have not been given opportunity to refuse those hours prior to the final version being issued; and training materials that refer to a requirement to be available on weekends and public holidays. The essence of the Decision was expressed by Justices Collier, Thomas and Raper at [31]: ‘An employee is entitled to be absent from work on a public holiday, unless the exceptions under s 114(2)-(3) apply: An employer has “request[ed]” the employee to work and the request is reasonable (s 114(2), 3(a)) or the employee's refusal is not reasonable (s 114(3)(b)).’ Difference between a request and a requirement to work on a public holiday? In the Decision, their Honours expressed the distinction between a request and a requirement in the following terms: ‘We are of the view that to read “request” as comprising a demand or making something obligatory is not consistent with what was intended by the legislation, namely that there is a choice : The employee may refuse an unreasonable request or, even though the request is reasonable, the individual circumstances of the employee may nonetheless allow the employee to refuse a reasonable request.’ [32] Importantly, the decision makes it clear that a staff member will always retain the right of reasonable refusal, even where the terms of their contract, enterprise agreement or award foreshadow that they may be asked to work on public holidays. In effect, an employer needs to give staff that choice by making a discrete request for each public holiday that arises. A ‘standing notice’ or ‘reasonable expectation’ will not suffice. What is the meaning of ‘reasonable’ when refusing a request to work on a public holiday? Section 114 of the FWA forms part of the NES. Sub-section 114(4) provides the following criteria for assessing reasonableness in relation to public holidays: 114 (4)   In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account: the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee; the employee’s personal circumstances, including family responsibilities; whether the employee could reasonably expect that the employer might request work on the public holiday; whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday; the type of employment of the employee (for example, whether full‑time, part‑time, casual or shiftwork); the amount of notice in advance of the public holiday given by the employer when making the request; in relation to the refusal of a request—the amount of notice in advance of the public holiday given by the employee when refusing the request; any other relevant matter. In the case of OS MCAP, the Full Court agreed with the CFMMEU that the ‘operational reasons’ provided by the employer were insufficient to make the employer’s requirement reasonable. What if an employer cannot shutdown on public holidays? There are many industries where full shutdown is not possible. For instance, emergency or frontline services. The Decision addresses this issue at [43]: ‘Contrary to the conclusion of the primary judge, we do not consider this interpretation “skews” the balance against employers. An employer can ultimately require employees to work on public holidays who are involved in critical services or where it is desirable (although “not critical”) to remain open on public holidays in circumstances where the employer has satisfied the obligations imposed upon it under ss 114(2) and (3) , namely, that it has made a request, that request is reasonable, and in circumstances where an employee's refusal is not reasonable (taking into account the factors in s 114(4)). There is no preclusion that exists of the kind contemplated by the primary judge.’ Implications Guidance should be taken from the following paragraph of the Decision regarding the steps that an employer will need to take to ensure that they are seen to be making a request of staff, rather than imposing a requirement to work on a public holiday: ‘An employer is able to have a roster which includes public holidays. All that is required is that an employer ensures that employees understand either that the roster is in draft requesting those employees who have been allocated to the holiday work that they indicate whether they accept or refuse that allocation , or where a request is made before the roster is finalised. Similarly , a contract may contain a provision foreshadowing that the employees may be asked to work on public holidays and may be required where the request is reasonable and a refusal unreasonable .’ [44] In practice: the employer should make it clear that a roster that includes a public holiday is only a draft until staff have had a chance to review and refuse; and if there is a standing notice that employees may be called upon to work on a public holiday, staff should be aware that they still have the right to refuse (subject to the conditions above). Remuneration for hours worked on a public holiday (overtime, penalties, TOIL etc.) will be as provided in the employment contract, enterprise agreement, or award . Need help from an employment lawyer? The Decision makes clear that the default position is that an employee will be entitled to a paid day off for a public holiday. On that basis, a staff member cannot be directed to work. A standing requirement to work public holidays contained in a contract, enterprise agreement or award is likely to be viewed as an attempt to contract out of the NES and, on that basis, will be in breach of s 44 of the FWA. However, the employer retains the right to make reasonable requests for staff to work on public holidays so long as employees are given the choice to decline. A request to work on a public holiday is more likely to be reasonable if the industry in question provides emergency or frontline services and plenty of notice is given. The key takeaway is that there will always need to be open lines of communication around public holidays. An employer will need to make a request for each public holiday they wish staff to work, and they must be prepared not only to justify that request but to receive reasonable refusals. If you’re having difficulties negotiating work requests or requirements on a public holiday, contact one of our award-winning employment lawyers for advice or assistance. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/july/working-public-holidays/ Sun, 02 July 2023 00:00:00 A public benevolent institution (‘PBI’) is among the fourteen subtypes of charities that may be registered with the Australian Charities and Not-for-profits Commission (‘ACNC’). Obtaining PBI registration is highly desired by many organisations due to its provision of specific tax concessions, such as fringe benefit tax exemptions, and the potential for increased access to government funding. Not all charities may be registered as a PBI, and determining eligibility requires a careful examination of an organisation's purpose, structure, and operations. What is a public benevolent institution? In simple terms, a public benevolent institution is a charitable organisation established to provide relief to people in need, such as those who are in poverty, sickness, suffering, distress, misfortune, disability or helplessness. To qualify as a PBI, an organisation must satisfy the criteria derived from its three component words: ‘public’, ‘benevolent’, and ‘institution’. Meaning of ‘public’ in a public benevolent institution The size of the group that the organisation seeks to assist is the primary consideration in determining whether it satisfies the ‘public’ component. Specifically, the organisation should provide support to an extensive group of people within the community, such as those who require emergency relief, the elderly or disabled, or refugees and asylum seekers. When evaluating whether an organisation fulfils the ‘public’ requirement for a PBI, several other factors may be taken into consideration. These include whether the organisation: receives funding from the public; has a significant level of public accountability and control; or has a connection or relationship with government. Meaning of ‘benevolent’ in a public benevolent institution For an organisation to satisfy the ‘benevolent’ component, its main purpose must be to provide relief to individuals that are recognisably in need of relief, and it must have clear mechanisms for delivering that relief. The emphasis is on the substance of an organisation’s main purpose and the activities it performs, not just its form. Notably, a ‘benevolent’ purpose must be directed at people, and an organisation that relieves the suffering of animals does not qualify as a PBI. The motivations of an organisation are, generally, not relevant when determining whether its main purpose is ‘benevolent’. For instance, an organisation whose main purpose is to advance religion (for example, a church or mosque) would not qualify for registration as a PBI. By contrast, if an organisation is motivated by religious faith but its main purpose is, for example, to provide temporary accommodation services for the homeless, it will likely satisfy the ‘benevolent’ component. An organisation conducted for individual profit or whose profits benefit private individuals is not considered to be ‘benevolent’. Nonetheless, an organisation may still qualify as a PBI even if it engages in non-benevolent activities, so long as those activities are merely ancillary or incidental to the main benevolent purpose.  An organisation may be eligible to register as a PBI even if it does not directly provide relief to people in need, as long as it is structured to engage solely in fundraising for benevolent causes. However, to be eligible, the organisation must demonstrate that its benevolent activities actually provide relief to people in need. Additionally, an organisation may undertake prevention activities as long as they support or further the main benevolent purpose. An organisation can be organised or operated in various ways to carry out benevolent purposes. This may be through shared planning, shared processes or a common purpose. The emphasis is on the substance of an institution's objects and activities it performs, not just its form. Generally, the organisation’s governing document, for example, a constitution, and the scope of its activities will be sufficient to determine if it is ‘benevolent’. In this regard, it is critical that organisations seek legal advice as to the suitability and eligibility of their governing document prior to seeking registration. GET ADVICE FROM A LAWYER:  1800 659 114 Meaning of ‘institution’ in a public benevolent institution In order to satisfy the ‘institution’ component, the legal structure of an organisation must be suitable for registration as a charity. Eligible legal structures include the ‘incorporated association’ legal structure, company limited by guarantee and some types of trusts. You can learn more about suitable legal structures in our earlier blogs: Registering a charity in Australia Benefits of incorporating associations and clubs Company limited by guarantee vs incorporated association for not-for-profit organisations Organisations should seek legal advice to ensure their organisation’s structure is eligible and suitable for registration. Eligibility to register as a public benevolent institution To be eligible for registration as a PBI, an organisation must not only have a suitable legal structure, it must also demonstrate its capacity to operate in the foreseeable future and conduct benevolent activities. This may require the submission of financial records, business plans, third-party agreements (e.g. service agreements) and grants or funding agreements. Organisations that have recently commenced, or are yet to begin operation, often experience difficulty providing satisfactory evidence of this kind, and it is advantageous to their application that they seek legal advice to explore alternative supporting documentation to strengthen their application. GET ADVICE FROM A LAWYER:  1800 659 114 If an organisation fails to commence operating within a year of registration and is unable to provide a satisfactory explanation, the ACNC may review their registration. The ACNC may also review the registration of an existing PBI that has not been operating for 6 months or more. Finally, it is important to note that an organisation operating overseas will generally find it more challenging to satisfy the requirements of a PBI, particularly with compliance with the governance standards set by the ACNC. As a result, organisations operating overseas should seek legal advice before applying for registration as a PBI. Get help registering as a public benevolent institution Registering a charity can be a daunting task even for the most decerning or proficient, especially when it comes to registering as a public benevolent institution subtype. Hall Payne Lawyers have extensive experience and expertise assisting and advising registered charities and not-for-profit organisations. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/june/public-benevolent-institution/ Sun, 25 June 2023 00:00:00 When an employee resigned from her employment as General Manager at Atanaskovic Hartnell Corporate Services ( AHCS ), the employer refused to pay her final pay entitlements, including outstanding wages, annual leave and long service leave. In March 2022, the Federal Circuit and Family Court of Australia ( the Court ) ordered AHCS to make payment of the employee’s final entitlements of $130,000 (plus interest) and $30,000 in general damages within 21 days of the judgment. AHCS failed to make the payment within this timeframe, and in March 2023, the Court awarded the employee $184,000 in penalties. Initial adverse action claim filed by employee in 2017 The employee filed proceedings with the Federal Circuit and Family Court of Australia in 2017, alleging that AHCS had: contravened s.340 of the Fair Work Act 2009 (Cth) ( FW Act ) by taking a number of actions against her during her employment ( Adverse Action Claim ); failed to pay her entitlements on resignation in breach of the FW Act and her contract of employment ( Entitlements Claim ); and breached an implied term in her employment contract which required AHCS to avoid exposing her to any unnecessary risks of injury to her person or reputation ( Contract Claim ) AHCS subsequently filed a cross-claim seeking to set off the employee’s entitlements and wages against the loss the employer claimed it had suffered as a result of: the employee’s failure to provide the correct documentation to enable AHCS partners to practice in the UK (the loss being the payment of fees to Deloitte for its advice to rectify a failed visa renewal application for Mr Atanaskovic); and the failure to notify Lexis Nexis that it was not renewing a contract for its legal publishing services. AHCS ordered to pay final entitlements to the employee In its judgement handed down in March 2022 , the Court found that AHCS’s failure to pay the employees entitlements contravened ss.90(2) and 323 of the FW Act and ordered both Atanaskovic Hartnell Corporate Services and John Atanaskovic (a director and founding partner who was found to be knowingly involved and jointly liable) to pay the employee her full entitlements of $130,000 plus interest and $30,000 in general damages for “… distress, hurt and humiliation”. Whilst the employee's Entitlements Claim and Contract Claim were successful, the Adverse Action Claim was not. The employer’s cross-claim was dismissed, with the Court finding that an employer cannot “set off” a cross-claim against statutory entitlements. The Court ultimately found that the employer had suffered no loss and had “ constructed a contractual artifice ” in an attempt to shift loss from the law firm partnership to the employer (AHCS) so that the alleged loss could be set off against the employee’s entitlements claim. Penalty after AHCS fail to make Court ordered payment In the Court’s March 2022 judgment, AHCS was ordered to pay final entitlements within 21 days, however, AHCS did not make payment until October 2022. The employee sought civil pecuniary penalties from AHCS and Mr Atanaskovic in respect of their contravention of ss. 44(1), 90(2) and 323(1) of the FW Act by failing to pay the employees outstanding wages, annual leave and long service leave. In considering the quantum of the penalties, the Court found that: " Such blatant, wilful and contumelious conduct ought not occur in any employment context and weighs strongly in favour of the imposition of meaningful penalty " Other relevant considerations in determining penalty included: the employer’s cross-claims were" unreasonable " and formed part of the employer’s scheme of " artifice and deceit " to avoid paying the entitlements claimed; there was a " strong interest " in specific and general deterrence because " employers must be dis-incentivised from shirking their legal obligations "; the employer’s " total disregard " for the court's March orders requiring payment of the entitlements and damages owed within 21 days. The employer only paid the entitlements and damages owed three days before the penalty hearing. The Court stated that " To describe this corrective action as 'eleventh hour' would be generous ”. This resulted in a finding that the employer’s actions were " wilful, sustained and continued even after the time for rectification was ordered by the court "; and the employer did not show any contrition for their conduct. In considering the above, the Court found that the maximum penalty should only be reduced by 5% on account of the employer paying the amounts owed " even if only within 72 hours of the penalty/costs hearing ". The Court ordered AHCS to pay a penalty of $153,900 ($51,300 per contravention) and its director and founding partner John Atanaskovic $30,780 ($10,260 per contravention) for failing to pay the employee’s wages and leave entitlements. These penalties were ordered to be paid to the employee in addition to the employee’s final pay entitlements. Costs awarded against the employer Section 570 of the FW Act provides that in proceedings brought under the FW Act (such as an adverse action claim), a party may only be ordered to pay the other party’s costs if: the party instituted the proceedings vexatiously or without reasonable cause; or the party's unreasonable act or omission caused the other party to incur costs; or the party unreasonably refused to participate in a matter before the FWC, and the matter arose from the same facts as the proceedings. The employee and employer both made separate costs applications pursuant to s.570 of the FW Act. The Court found that under Atanaskovic’s instruction, the employer unreasonably pursued cross-claims which caused the employee to incur costs in an attempt to defeat the employee’s entitlement claims and ordered the employer and Atanaskovic to pay the employee’s costs in relation to: the employer’s contraventions of ss 44, 90(2) and 323 of the FW Act; the employer’s contravention of s 4(5) of the Long Service Leave Act; the employer’s cross-claims; and the employee’s application for penalties and costs. The Court dismissed AHCS’s costs application on the basis that, given the factual background, it was not unreasonable for the employee to maintain her ultimately unsuccessful adverse action claim. Significance of this decision for workers This outcome demonstrates that significant penalties will be imposed by the Court when employers demonstrate blatant disregard for their legal obligations to their employees. Those penalties can be ordered to be paid to the relevant applicant to an application, in this case, the employee. Get help from an employment lawyer If you’re having issues related to your employment, you should seek advice or assistance from your union or a lawyer. Hall Payne’s award-winning employment law team can assist you with any queries or concerns you have in the workplace. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/june/failure-to-pay-termination-entitlements/ Mon, 19 June 2023 00:00:00 Are you one of the over half a million New Zealand Citizens currently calling Australia home? If so, you’re in luck! In April 2023, the Australian government announced a new direct pathway for eligible New Zealand Citizens applying for Australian Citizenship. The new pathway is open to New Zealanders who have been living in Australia in excess of four years.   When does the direct pathway for New Zealand citizens to apply for Australian Citizenship commence? The new direct pathway commences from 1 July 2023 and is available to eligible applicants, being New Zealand citizens holding a Special Category Visa and who meet the eligibility criteria set out below. Eligibility for New Zealand citizens applying for Australian Citizenship after 1 July 2023 Some of the basic aspects of the new legislation are: You must hold a subclass 444 visa (generally issued when entering Australia on presentation of your NZ passport) and have arrived after 26 February 2001. New Zealanders who arrived prior to that date already have a pathway to Australian Citizenship . You can learn more about that in our blog “Permanent residency for New Zealanders living in Australia” ; You must have been living in Australia for at least four years; If you have been in Australia on a subclass 444 visa prior to 1 July 2022, you will be considered to be an Australian permanent resident from 1 July 2022; If your first Subclass 444 visa was granted after 1 July 2022, you will be considered an Australian permanent resident from that date; The same will apply to New Zealand citizens who are overseas and who last left Australia holding a subclass 444 visa; In addition, any child who has been born in Australia to a Subclass 444 visa holder on or after 1 July 2022 will automatically be considered an Australian Citizen at birth. From 1 July 2023, these children will be able to apply for evidence of Australian Citizenship. What is the cost to apply for Australian Citizenship? Current government charges for an Australian Citizenship application are: $490 for an adult; $300 for someone 16 or 17 years old; $300 for someone over 60 years; and free for a child 15 years or younger who is applying on the same form as a parent. The current government charge for evidence of Citizenship is $240. There has been no indication that there will be any fee concession for this new direct pathway for New Zealand citizens applying for Australian Citizenship. Note : These Government charges change from time to time and are due to be increased from 1 July 2023, so may differ from those noted above. How the direct pathway for NZ citizens applying for Australian Citizenship works The changes for New Zealand citizens applying for Australian Citizenship (being implemented from 1 July 2023) will allow New Zealand Citizens residing in Australia to satisfy the general residency requirement for Citizenship (by conferral) contained in the Australia Citizenship Act 2007 . That residency requirement stipulates that an applicant must have been present in Australia, lawfully, for at least four years in total, and that four year period must include at least twelve months as a “permanent resident” on the day that they apply for Australian Citizenship. Applicants must not have been outside Australia for more than 12 months in total in the four years prior to applying for Australian Citizenship, including no more than 90 days in total in the past 12 months. Get help from a registered migration agent If you would like more information about commencing your Australian Citizenship application or obtaining evidence of your child’s Australian Citizenship, or any other migration queries or issues you are having, book an appointment with our registered migration agent, Leanne Taylor. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: Who can help with your Australian visa application? Australian citizenship applications and the character test Appeal options for visa applicants rejected due to failing the health requirement https://www.hallpayne.com.au/blog/rss/blog/2023/june/citizenship-path-for-new-zealanders/ Mon, 12 June 2023 00:00:00 Content updated with High Court of Australia decision: August 2023 In Queensland (and other states and territories of Australia), employers owe a duty of care towards their employees to protect them from the actions of other workers that cause injury or harm in the course of employment. This does not mean the person who caused the injury is not also liable. Both the employer and the worker who caused injury can be found liable. In this article, we explore the case of Schokman v CCIG Investments Pty Ltd [2021] QSC 120 and Schokman v CCIG Investments Pty Ltd [2022] QCA 38 where the Court considered in detail the concept of vicarious liability.  What is vicarious liability in personal injury law? Vicarious liability is where an employer may be held legally responsible for the actions of employees (and others) for harm caused in the workplace. The employer need not have specifically or directly caused the harm themselves. Background In April 2021, the Supreme Court in Rockhampton considered a highly unusual workers’ compensation claim . Mr Schokman, the plaintiff, was a 25 year old restaurant supervisor at Daydream Island Resort. A condition of his employment was to share accommodation at the resort with his co-worker and subordinate, Mr Hewett. Mr Schokman had underlying conditions of narcolepsy (a sleep disorder) and cataplexy (a sudden and brief loss of voluntary muscle tone triggered by emotional stress) which was well controlled by medication prior to the incident. In the early hours of 7 November 2016, Mr Schokman awoke choking due to Mr Hewett urinating on his face, and in his mouth. He immediately suffered an attack of cataplexy; as well as insomnia, post-traumatic stress disorder, anxiety and depression later arising from the incident. In defending the claim, the employer submitted Mr Hewett was so intoxicated he did not know where he was when the urination event occurred Indeed, the Court determined the incident occurred because Mr Hewett was ‘ in a state of semi consciousness precipitated by his level of intoxication ’. Mr Schokman claimed his employer was negligent, breached the duty of care owed to him, and was vicariously liable for the conduct of its employee, Mr Hewett. Supreme Court determines employer did not breach its duty of care The Supreme Court accepted Mr Schokman sustained injury and that Mr Hewett committed a serious assault on Mr Schokman. However, the Court rejected that the employer was vicariously liable for the conduct of a drunk employee because the incident did not occur in the course of employment. The Court held the risk that Mr Schokman would have a confrontation with a co-worker or roommate was foreseeable however, the urination event was not foreseeable for the employer to prevent or respond to the risk. The Court determined there was no history of Mr Hewett becoming intoxicated or having an intoxication-related incident that would put the employer on notice that Mr Hewett may have engaged in bizarre conduct like the urination event. Mr Schokman appealed the decision of the Supreme Court, to the Queensland Court of Appeal. Court of Appeal found employer was vicariously liable In March 2022, the Queensland Court of Appeal overturned the decision at first instance, finding in favour of Mr Schokman. The Court of Appeal determined that: It was a term of Mr Schokman’s and Mr Hewett’s employment that they reside in the staff accommodation on the island and a room be assigned to them to share; Whilst Mr Schokman and Mr Hewett remained employed at the resort, they were required to live there and once they ceased employment, they were required to leave; Mr Hewett was not occupying the room as a stranger to Mr Schokman, but instead as a co-worker and an employee pursuant to his employment contract; The terms of Mr Hewett’s employment required him to take reasonable care so that his acts did not adversely affect the health and safety of other persons. The Court of Appeal found Mr Hewett’s conduct was not an act ‘ entirely outside the relation of master and servant and therefore regarded as the act of a stranger’ , and that there was sufficient connection between Mr Hewett’s employment and the event due to the provision of shared accommodation by the employer. The Court of Appeal accepted Mr Schokman’s argument that the employer was vicariously liable for the wrongful conduct of its intoxicated employee. Appeal to the High Court On 16 September 2022, the High Court of Australia heard the employer’s application for special leave to appeal the Queensland Court of Appeal’s decision. The employer submitted that - acts in which an employer can be held vicariously liable must bear a sensible relation to the activities for which the employee is employed to do within the scope of employment. Mr Schokman’s representatives submitted that as a requirement of practicality of employment, the provision of shared accommodation was a contractual requisite provided by the employer. Therefore, matters incidental to employment, such as cooking a meal, or maintaining personal hygiene, are connected to employment. The general obligation to take reasonable care that the employees’ acts did not adversely affect the health and safety of other persons whilst on the island was an obligation which governed the occupation of the shared accommodation. The High Court granted the application for special leave. High Court overturns decision of the Court of Appeal The High Court unanimously overturned the decision of the Court of Appeal Queensland, finding the employer was not vicariously liable for the actions of Mr Hewett. In their judgment, the court outlined the principles and intricacies surrounding employers’ vicarious liability, with particular emphasis on the concept of an act being within the 'course or scope of employment'. Core principles for vicarious liability of employers The court reiterated that for an employer to be held liable for the tort of an employee, the tortious act of the employee must have been committed in the course or scope of the employment. The principle behind this rule is that it is just to make the employer, who benefits from the actions of the employee, responsible for any injuries caused to another party due to the actions of the employee. The court also highlighted that the employee's wrongful act must be closely connected with the duties they are employed to perform. However, determining this connection can be difficult, especially in novel cases. The essence lies in identifying what the employee was employed to do and whether the wrongful act can be seen as stemming from or connected to those duties. Mr Schokman’s argument relied on analogies to two cases, Prince Alfred College and Bugge v Brown . An analogy with Prince Alfred College ? Mr Schokman attempted to draw parallels between his situation and the case of Prince Alfred College. He argued that the compulsory shared accommodation made him vulnerable due to the intimate setting it created. However, the court distinguished this and clarified that the situation in Prince Alfred College was not sufficiently analogous to serve as precedent. Prince Alfred College involved sexual abuse and turned on the fact that the abuser’s role as a housemaster afforded him a position of power and intimacy (being that the housemaster’s employment duties related to the shared accommodation) such that the abuse occurred in the course or scope of employment. In Mr Schokman’s case, however, Mr Hewett did not hold any special role over Mr Schokman, and Mr Hewett’s employment duties had nothing to do with the accommodation. An analogy with Bugge v Brown ? Mr Schokman pointed to similarities between his case and Bugge v Brown, which involved damage to property following the escape of a fire due to the employee following the employer’s instructions to cook their own meal. In Bugge v Brown , the employment connection was established as the act of cooking was authorised by the employer. In both Bugge v Brown  and the Schokman case, the tortious act took place during a break from employment. However, the High Court distinguished the two cases. In Bugge v Brown , the act of lighting a fire to cook a meal was directly connected to the employee's employment duties (and authorised actions) within working hours, whereas Mr Hewett's act was well outside of working hours and his actions were entirely unrelated to his employment duties, instead arising from intoxication during his leisure time. The court emphasised that in Bugge v Brown, the act of cooking was an intrinsic part of the employee's tasks for the day, whereas Mr Hewett’s act of drinking after work hours was not sufficiently linked to his work duties. The court found that Mr Hewett’s mere shared proximity to Mr Schokman was insufficient to provide the requisite connection to render the employer liable. High Court decision underscores the need for a direct connection to employment The High Court's judgment underscores the importance of a direct connection between the wrongful act and the employment for vicarious liability to be imposed on the employer. Merely providing an opportunity for the wrongful act, such as shared accommodation in this case, does not suffice to establish this connection. In essence, the act needs to be so closely tied to the duties or tasks the employee is employed to perform that it can reasonably be said to have been committed within the scope of their employment. The High Court's judgment reaffirms this principle and provides further clarity on its application in unique scenarios. It is crucial for employees to understand their employer’s potential liabilities and to take appropriate steps to manage risks and ensure clarity of job roles and responsibilities. If you have any questions about vicarious liability, personal injury, or any other issues, don't hesitate to reach out to our experienced team at Hall Payne Lawyers. Get help from a lawyer experienced in worker’s compensation and employment law It is crucial for employees to understand their employer’s potential liabilities and to take appropriate steps to manage risks and ensure clarity of job roles and responsibilities. If you have any questions about vicarious liability, personal injury, worker’s compensation or any other issues, don't hesitate to reach out to our experienced team at Hall Payne Lawyers. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/june/employer-vicarious-liability/ Mon, 05 June 2023 00:00:00 There are three primary types of employment; full-time, part-time and casual. There are some common employee rights and entitlements that are shared across all three types of employment, however, a casual employee has fewer rights and entitlements than full-time and part-time employees. This blog explores the key differences between each type of employment. Employment relationships in Australia are governed by the Fair Work Act 2009 (Cth) (the FW Act ). The laws set by the FW Act are designed to protect the rights of workers and ensure that employers are fulfilling their obligations towards their employees. Employment rights in Australia cover a wide range of issues, including: minimum wages; working hours; leave entitlements (including annual leave, sick/carers leave, parental leave and long service leave); discrimination and harassment; workplace safety; and termination of employment. Employment rights in Australia are designed to ensure that workers are treated fairly and equitably and that their contributions to the workplace are recognised and rewarded. Full-time employee rights and entitlements Full-time employees can be employed on a permanent or fixed-term contract basis. Hours of work for full-time employees On average, a full-time employee works 38 hours per week. The hours of work a full-time employee is required to work will depend upon the contract agreed upon between the employer and employee or the award or registered agreement. Leave entitlements for full-time employees A full-time employee is entitled to a range of leave, including paid annual leave , sick leave and personal/carer’s leave, parental leave and family and domestic violence leave. Wages and penalty rates for full-time employees A full-time employee is entitled to be paid a minimum wage, as well as any applicable penalty rates for working outside normal hours or on a public holiday. If a worker is covered by an award , the penalty rates applicable to their role will be specific in that award. Other rights for full-time employees Full-time employees also have the right to flexible working arrangements, such as working from home or part-time work, if it is necessary to accommodate their caring responsibilities or other personal circumstances. In terms of workplace safety, all employees, including full-time employees, have the right to a safe and healthy work environment, and employers are required to take steps to prevent accidents and injuries in the workplace. Part-time employee rights and entitlements Part-time employees can be employed on a permanent or fixed-term contract basis. Hours of work for part-time employees Part-time employees work less than 38 hours per week and, generally speaking, their hours are regular each week. Leave entitlements for part-time employees Part-time employees are entitled to pro-rata paid annual leave, sick leave and personal/carer’s leave, parental leave and paid family and domestic violence leave. Wages for part-time employees Part-time employees are entitled to the same minimum wage as full-time employees, calculated on a pro-rata basis based on their hours of work. As with full-time employees, part-time employees may be eligible to receive applicable penalty rates for working outside normal hours or on public holidays, depending on the award they are covered by. Other rights for part-time employees Part-time employees have the right to request flexible working arrangements, such as changes to their work hours or the option to work from home if it is necessary to accommodate their caring responsibilities or other personal circumstances. Part-time employees are also protected by workplace health and safety laws and have the right to a safe and healthy work environment. Casual employee rights and entitlements Casual employment is a common form of employment in Australia, particularly in the hospitality and retail industries. Hours of work for casual employees A casual employee is generally an employee who works hours as needed by their employer. A casual employee is not guaranteed hours, nor are they provided with regular hours each week. Leave entitlements for casual employees Casual employees are not entitled to paid annual leave or sick leave, however, they are entitled to two days of unpaid carer’s leave and two days unpaid compassionate leave per occasion. Casual employees are also entitled to family and domestic violence leave. Wages for casual employees To make up for the lack of paid leave, casual employees are entitled to casual loading. Casual loading is an additional payment on top of their base hourly rate to compensate for the lack of leave entitlements. Other rights for casual employees Casual employees are entitled to request flexible working arrangements like full-time and part-time employees. As with full-time and part-time employees, casual employees are entitled to a safe and healthy work environment. After 12 months of regular and systematic employment, a casual employee is entitled to make a request to their employer to be converted from a casual to a permanent employee in certain circumstances. Those circumstances have been addressed in our earlier blog, “Employee rights to convert from casual to permanent employment” . Family and domestic violence leave In early 2023, family and domestic violence leave was added to the National Employment Standards ( NES ) as a minimum leave entitlement for all employment types. An employee of a small business (15 employees or less) is entitled to 5 days of unpaid leave per year until 1 August 2023, and, from 1 August 2023, they are entitled to 10 days paid leave per year. Employees of larger businesses are entitled to 10 days paid leave per year. Full-time and part-time employees will be paid the same amount they would be as if they were working. Casual employees will be paid at the full pay rate for the hours they were rostered to work during the period in which they took the leave. You can read more detail in our earlier blog, "Paid family and domestic violence leave entitlements from 2023" . You can also read more information about employee rights and entitlements in this Fair Work Information Statement  that provides detail on the minimum standards an employee is entitled to under their employment; whether that is full-time, part-time or casual. Get help from an employment lawyer If you’re concerned that you are not receiving all employee rights and entitlements relative to your employment type, you should seek advice and assistance from your union or an employment lawyer. Hall Payne’s award-winning employment law team can assist you with any workplace issues. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/may/employment-types-and-rights/ Sat, 27 May 2023 00:00:00 Being injured in a motor vehicle accident is a very frightening experience, and what to do in the aftermath can be both daunting and confusing. Our plain English guide to claiming compensation after a motor vehicle accident in Tasmania provides detailed information on: eligibility to claim compensation after a road accident; the steps to take immediately after a motor vehicle accident; how to make an MAIB claim for compensation and benefits; what compensation and benefits are available; common law claims due to negligence of another person; death benefit claims; time limits that apply to your MAIB claim or common law claim; options if your claim is rejected; and options if the other driver cannot be found. The motor vehicle compensation scheme in Tasmania is administered by the Motor Accidents Insurance Board (“MAIB”). The scheme provides compensation and benefits on a no-fault basis. These benefits are called “scheduled benefits”. The MAIB is governed by the Motor Accidents (Liability and Compensation) Act 1973 (‘the Act’). What is a motor vehicle? A motor vehicle is defined by the Vehicle and Traffic Act 1999, and it means any vehicle that is built to be propelled by a motor that forms part of the vehicle. A bicycle, for example, is not a motor vehicle. There are some exemptions to the rule under section 3 of the Act, but the important exceptions are: a motor vehicle that travels only on a railway, tramway or other fixed track; a pedal or power-assisted cycle with a motor; and a motor vehicle designed for off-road work in construction, maintenance or warehouse operation. Importantly, you are not able to claim scheduled benefits after a motor vehicle accident if you were using a vehicle that does not require vehicle registration. Who can claim motor vehicle accident compensation in Tasmania? To be eligible for scheduled benefits through the MAIB, you need to be either: a Tasmanian resident; an interstate resident involved in a motor vehicle accident in Tasmania with a vehicle registered in Tasmania; or a non-resident involved in a motor vehicle accident in Tasmania with a vehicle registered interstate who requires daily care. If the accident happened on private property, you are still eligible for benefits provided you satisfy one of the above criteria. If the accident occurred due to the use of an unregistered trail bike, farm bike or beach buggy, there is a risk you are not eligible for benefits under s 24(e) of the Act. If the accident occurred due to: motor vehicle racing; intentionally causing or attempting to cause personal injury to yourself or others; the commission of, or attempted commission of an offence of dishonesty or violence; or the use of an unregistered vehicle where the driver of the vehicle is claiming scheduled benefits, you are likely precluded from claiming scheduled benefits. If you have been convicted of a serious offence in relation to the motor vehicle accident, you also may be barred from claiming scheduled benefits. If you wish to pursue personal injury compensation (a common law claim) in Tasmania, you need to prove that the injury occurred as a result of someone else’s negligence. If, for example, you were in a single-vehicle accident, you would not be able to pursue personal injury compensation. Please refer below for further information on personal injury compensation. First steps if injured in a motor vehicle accident in Tasmania In the aftermath of a motor vehicle accident, you are likely in shock and potentially suffering from serious injuries. The circumstances of the accident and the extent of your injuries can greatly vary the next steps you will need to take in order to receive support and compensation. We suggest the following steps: Call 000 and ensure police and an ambulance are on their way. This should be done even when you feel your injuries are not life-threatening. If you are feeling able, obtain details from the other driver(s), including their licence number, vehicle registration, full name, and phone number. If you are feeling able, obtain details of any witnesses, including name and phone number. If you are able at the time, give a statement to police. Receive appropriate treatment for your injuries. Contact the police later for more information, including the Traffic Crash Report number and any details of police investigations. File a motor vehicle accident compensation claim with the Motor Accidents Insurance Board Tasmania (‘MAIB’). It is important to make sure that the police are aware of the accident, even if this means notifying them of it after it has occurred. The MAIB require a Traffic Crash Report number in order to assess your eligibility to claim benefits. The police can also assess if charges need to be laid against the other driver. This may be important if you are eligible for common law damages due to the negligence of another person. GET HELP FROM A MOTOR VEHICLE ACCIDENT LAWYER: 03 6215 8100 How to claim motor vehicle accident compensation with the MAIB To claim compensation and other benefits after a motor vehicle accident, you will need to complete the relevant prescribed forms. These can be located on the MAIB website . There is a range of forms, and it’s important you complete all the forms relevant to your claim. You can complete the forms online or download them and send to MAIB by post or email. If you are taken to hospital after your accident, you may be provided with these forms and given assistance by hospital staff to complete them. If you do not complete the forms in hospital, you should make an appointment as soon as possible with your GP so you can discuss your injuries and receive assistance in providing the forms to the MAIB. The sooner you file the forms, the faster you can have your treatment and wage loss paid for. What compensation is available after a motor vehicle accident in Tasmania? The MAIB provide benefits to compensate you in the case of a motor vehicle accident. These benefits are provided on a ‘no liability’ basis – meaning they will provide these benefits regardless of the cause of the accident. Benefits available after a motor vehicle accident in Tasmania include: compensation for loss of income; medical expenses (including GP, hospital, ambulance, specialists, surgeons and allied health professionals); travel expenses in certain circumstances; domestic assistance in certain circumstances. You may also be eligible for personal injury compensation (common law claim) if your injuries are as a result of someone else’s negligence (see the section on common law claims below). Personal injury compensation claims (common law claim) after a motor vehicle accident in Tasmania It is always best to seek advice from a lawyer as to whether you have grounds for a personal injury claim due to the negligence of the other driver. This type of claim is in addition to the no-fault MAIB claim. If you are able to pursue a personal injury claim (common law claim), you may be eligible for the following compensation: General damages (pain and suffering); Past economic loss (above and beyond what is covered by the MAIB); Future economic loss; Past out-of-pocket expenses and treatment (this area is usually minimal as the MAIB should be paying for most of these); Future out-of-pocket expenses and treatment; and Future care needs. These claims are often complex. To ensure you protect your interests and receive ALL the compensation you deserve, it is crucial you speak with a motor vehicle accidents lawyer. FOR A FREE CONSULTATION, CALL: 03 6215 8100 What if the other driver cannot be found? If either of the following things occurs: The identity of the other motor vehicle cannot be established; or The driver of the other motor vehicle has died or, after reasonable inquiry and search, cannot be found, you should contact a lawyer as soon as possible. This is due to section 16 of the Act. Under this section, if any of the above occurs, you need to notify the MAIB within three (3) months or, with reasonable justification, nine (9) months. Get help from a motor vehicle accidents lawyer If you’ve been injured in a motor vehicle accident in Tasmania, you will be entitled to compensation by lodging an MAIB claim. You may also have an entitlement to personal injury compensation if someone else’s negligence caused the accident and your injuries. Hall Payne is highly experienced in motor vehicle accident claims. We offer a free first interview, and if your claim has merit, we will run it on a 'no win no fee' basis. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au For property damage to your vehicle If your car was damaged in the accident and you want advice on recovery, it is best to contact the Tasmanian Law Society on 03 6234 4133 for a referral to a firm that can advise on property damage. https://www.hallpayne.com.au/blog/rss/blog/2023/may/mva-claims-tas/ Mon, 22 May 2023 00:00:00 In a significant Personal Injury Commission decision, the widow of an electrical worker was awarded over $750,000.00 in lump sum compensation plus interest and funeral expenses up to $15,000.00. The NSW worker’s compensation death claim was filed after the widow’s husband died as a result of a psychological injury arising out of his employment. Background to the deceased worker’s psychological injury The deceased worker had been employed with the same company for a period of over 30 years. Due to restructuring within the company, he was informed that his job was to be made redundant if he was unable to be redeployed. He was provided with minimal support, and there was little progress towards redeployment over the next several months. As a result, he became extremely distressed and despondent. The worker’s mental health continued to decline, which ultimately led to his death in 2016 due to a self-inflicted injury. The deceased worker had not sought medical assistance and the police evidence was inconclusive as to whether the death was due to misadventure. Widow lodges NSW worker’s compensation death claim The worker’s widow made enquiries with other law firms, where she was informed there was no case. The widow then approached Hall Payne Lawyers Sydney office. At this point, she was outside the 3-year time limit to lodge a worker’s compensation death claim. We immediately lodged the death benefit claim, which was promptly declined by the insurer. We recommended our client (the widow) appeal the decision of the insurer to reject the claim. Our highly experienced team of experts prepared the matter in great detail: obtaining a significant number of witness statements; collecting internal documents from the employer; and obtaining an expert psychiatric report. The insurer then amended its decision and accepted liability for the claim. Worker’s compensation death claims can be challenging and require sensitive and proactive management. NSW worker’s compensation death claim entitlements If a work injury results in the worker’s death, his or her dependants or estate are entitled to compensation. NSW entitlements can include: A lump sum death benefit apportioned among dependants. If there are no dependants, the lump sum death benefit is paid to the legal personal representative of the deceased worker’s estate (to be distributed to eligible beneficiaries in accordance with NSW estate planning laws). The lump sum amount payable is the amount in force at the date of the worker’s death (not the date of injury or the date the claim is brought). Weekly compensation for dependent children will continue until the child reaches the age of 16 years and in the case of a child who is a student, until the age of 21 years. Reasonable funeral expenses. When considering what is reasonable, it is expected that consideration be given to diverse religious, cultural beliefs and practices that exist in Australian society today. Reasonable funeral expenses can include (but are not limited to): the cost of the funeral service (including cremation or burial); cemetery site; death certificate; flowers; coffin; funeral director’s professional fees; catering for mourners; and any other reasonable costs associated with the legitimate disposal of a human body. Expense of transporting the body to the deceased’s usual place of residence or what would be an appropriate place for the burial or cremation (whichever is the lesser cost). The monetary values of the various benefits available under the NSW worker’s compensation system are indexed periodically and are listed in the Workers Compensation Benefits Guide available on the SIRA website . There might also be common law entitlements (if the injury was due to the negligence of the employer) in respect of a workplace death under the Compensation to Relatives Act 1987 and these also need to be investigated. Claim process that achieved over $750,000.00 in death claim compensation We served the employer’s insurer with a worker’s compensation claim form, and liability was declined by the insurer. Where the death occurs due to self-inflicted injury, these claims are particularly difficult to prepare, run and achieve a successful outcome for the family. We were required to prove that the worker had suffered a psychological injury due to his employment, prior to his death. This is where an expert legal team is essential. When a worker is deceased, and therefore cannot be assessed by experts, it is imperative all medical and relevant evidence is requested. This includes but is not limited to, obtaining statements from family, friends and work colleagues. This can be time an extremely time-consuming and highly sensitive process. When this information is available, it is collated and a brief prepared to be sent to a barrister to provide an advice as to prospects of success. Another brief is also prepared and sent to an expert psychiatrist to prepare his report as to the worker’s mental health status at the time of death. When the barrister’s advice and psychiatrist’s report are received, and it has been established there are prospects of success in the matter, proceedings are commenced in the Personal Injury Commission. The steps leading up to this point are complex matters of law. The matter was ultimately listed to be heard in the Personal Injury Commission, however, the insurer accepted liability prior to the listing date. Steps were also required to identify how many, if any, dependents may have been eligible for compensation. This required us to write to each child and the deceased worker’s relatives. Once that information was to hand, it was provided to the Personal Injury Commission, where a final determination was made with our client receiving over $750,000 compensation. It is important to note that should there be any other dependents, they will each need separate legal representation. We are experienced NSW worker’s compensation lawyers After losing a loved family member, making a claim for death benefits would be the furthest thing in someone’s mind, and can be extremely difficult and distressing. This is where you need the help of a specialist team, who are not only highly experienced lawyers but also understanding and caring advocates. As with other personal injury claims, statutory time limits apply, and it is vitally important that you seek legal advice about any NSW worker’s compensation claim early to ensure: your rights are protected; and that maximum benefits can be obtained to assist you and your family. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Further reading Experience and expertise lead to successful common law claim for NSW workplace injury NSW workers compensation claims for psychological injury Reasonable action defence in NSW worker’s compensation claims for psychological injury https://www.hallpayne.com.au/blog/rss/blog/2023/may/nsw-death-benefits-win/ Mon, 15 May 2023 00:00:00 Recent changes to pay secrecy laws in Australia mean that it will be illegal for employers to use pay secrecy terms in employment contracts from 7 December 2022. Such clauses usually seek to stop employees discussing how much they are paid, or bonuses, with their colleagues. The Secure Jobs, Better Pay Act added provisions to the Fair Work Act 2009 that protect employees’ rights to discuss, or not discuss, their pay with any other person, including work colleagues. The new law also prohibits the use of pay secrecy clauses in contracts of employment, with heavy fines for employers who breach the prohibition. The upshot of these changes is that everyone will soon be free to discuss their pay with whomever they like. Background Employer prohibitions on discussing pay in the workplace have been a contentious issue for a long time. In July of 2022, the Federal Circuit and Family Court of Australia considered a case where an employee had discussed salaries and other terms of employment with colleagues. The court held that the employer’s decision to terminate him for breaching their confidentiality policies was reasonable ( AMIEU v Primo Foods ). Despite this decision, many employers, including major banks, have recently taken steps to remove pay secrecy clauses from their employment contracts. One significant critique of pay secrecy clauses relates to the gender pay gap in Australia, which is currently 22.8% , according to data from the Workplace Gender Equity Agency. The argument is that removing the ability of employers to enforce pay secrecy in workplaces will lead to more open discussions that allow women to compare their pay with that of their coworkers and discuss discrepancies without fear of retribution. These open discussions may lead to better pay outcomes for women empowered to bargain for equal pay for equal work. The new pay secrecy laws provide protection for employees The Secure Jobs, Better Pay Act has settled the dispute about pay secrecy in favour of transparency, introducing three planks of protection for employees who choose to discuss their pay openly. In introducing the law, Federal Minister for Employment and Workplace Relations, Tony Burke said: “These clauses have long been used to conceal gender pay discrepancies. Banning them will improve transparency, reduce the risk of gender pay discrimination and empower women to ask their employers for pay rises.” The pay secrecy protections sit alongside a host of other changes designed to address gender equity in the workplace – including the establishment of two new Fair Work Commission Expert Panels and new powers for the Fair Work Commission to deal with sexual harassment in the workplace . Employees are not subject to pay secrecy Under the new law, an employee has the clear right to disclose, or not disclose, their pay as well as any terms and conditions of their employment that are reasonably necessary to determine their pay (such as their hours of work) to any other person. Employees are also protected if they choose to ask others about their pay, and the protections extend beyond the end of the employment period. This means that everyone is free to discuss their pay with any other person under the law. Pay secrecy terms have no effect The new law also has the effect of treating any term of an employment contract that purports to impose pay secrecy or would violate an employee’s right to discuss their pay as having no effect. A pay secrecy clause won’t be worth the paper it is written on. Prohibition and penalties for breach of pay secrecy laws The ‘teeth’ of the new law is an express prohibition on the use of pay secrecy terms in contracts. Violating this section can carry heavy penalties for employers who try to enforce such illegal terms. The section is a ‘civil remedy provision’, meaning that the maximum penalty for violating this section is $82,500 or up to $825,000 for serious contraventions. However, the protections in the Secure Jobs, Better Pay Act apply only to contracts of employment entered into or varied on or after 7 December 2022, and the penalties for employers kick in six months after that date. It is also important to note that nothing in the law requires anyone to disclose their salary to a coworker simply because they are asked. The right to disclose or not disclose pay and conditions lies with the individual employee. Is discussing my pay a workplace right? Yes. Your exercise of your workplace rights is protected by section 340 of the Fair Work Act 2009 , and the new law makes clear that discussing pay is a workplace right. This protection means that if your employer takes adverse action against you for discussing your pay, they may also be liable for penalties under the general protections provisions of the Fair Work Act . his means that even if your employment contract predates 7 December 2022, your right to discuss your pay may still be protected. Get help from an employment lawyer If your employer has told you that you cannot discuss your pay with others, they may be contravening your workplace rights. Book a consultation with one of our award-winning employment lawyers to confidentially discuss the matter. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/may/pay-secrecy-laws/ Sun, 07 May 2023 00:00:00 Updated 19 March 2025 The Federal Circuit and Family Court of Australia has dismissed a claim by an employee alleging that the Australian Bureau of Statistics (ABS) took adverse action against her when it terminated her after she shared anti-lockdown material on her LinkedIn profile during the height of the COVID-19 pandemic in 2021 ( Skelton v Australian Bureau of Statistics [2023] FedCFamC2G 89 ). The Court concluded that the employee was not terminated because of her political opinion, and therefore the dismissal did not contravene s. 351 of the Fair Work Act 2009 (Cth) (FW Act). Background The Court’s reasons for judgment note the following. The Applicant was a casual field officer employed with the ABS, and that in August 2021, she shared an image on her LinkedIn profile, which claimed that medical experts were opposed to government lockdowns and set out alleged adverse societal impacts of lockdowns. The post was accompanied by the caption, ‘When is enough, enough? ‘It’s time to STAND UP AUSTRALIA. AUSTRALIAN REVOLUTION NOW!’ The post came to the attention of the ABS when a member of the public threatened to report the post to their local member of parliament and news agencies. Several days after the post was first made, the ABS emailed the employee to explain that the post was contrary to the ABS social media policy and might cause people to question the impartiality of the ABS. The ABS alleged that, during communications between the ABS and the employee, the employee was rude, aggressive and disrespectful. The ABS subsequently terminated the Applicant’s employment. The Court proceedings The Applicant claimed that she was terminated for reasons including her expression of political opinion in contravention of general protections under 351 of the FW Act. The ABS claimed that there were only two reasons for the termination of employment: The Applicant’s post on LinkedIn, which: incited revolution against government lockdowns; and endorsed a political message while identifying the Applicant as an ABS employee, contrary to ABS policy; and The Applicant’s subsequent emails to her manager included a range of communication that was inappropriate in a workplace context, reflected a disrespect for the organisation and its management and were inconsistent with the ABS Values. The Court accepted the ABS view that this behaviour reflected disregard and disrespect for the relevant manager, the ABS and its policies. Court dismisses the employee’s claims The Federal Circuit Court dismissed the employee’s claims. The Court accepted the ‘consistent’ evidence from the ABS that the two reasons (referenced above) were the only two reasons for the Applicant’s dismissal. The Court accepted that the decision-maker’s evidence showed that the ABS was not concerned by the content of the employee’s political opinions and would have responded in the same manner whether the employee’s post was pro-lockdown or anti-lockdown. Mansini J, therefore, determined that the employee was not terminated for her political opinion [63]: “I conclude that Ms Skelton was not terminated for having a political opinion. The expression of her political opinion bore no more than an association with the reasons for her termination – and only to the extent of Ms Skelton’s conduct in choosing to post her political opinion in a manner that breached the terms of the ABS Code of Conduct and Social Media Policy.” The Court emphasised that this outcome was consistent with case law in this area, which maintains that a termination decision does not need to be ‘entirely dissociated’ from the protected activity (in this case, holding a political opinion) and simply must not be a ‘substantial and operative factor’ for the termination (citing Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 ; Rumble v The Partnership Trading as HWL Ebsworth Lawyers [2020] FCAFC 37 ). Mansini J emphasised that this did not mean that ABS employees are prevented from holding or expressing political opinions altogether [66]: ‘Just as the Court observed in Rumble, it was open to Ms Skelton to modify her behaviour by adhering to the Code of Conduct and Social Media Policy and still to have held and expressed her political opinion on LinkedIn or indeed other social media and communication platforms.’ What does this mean for employees? This decision continues a line of authority that provides that an employee’s behaviour on social media, which has the capacity to damage or threaten an employer’s reputation, may provide grounds for termination. In the context of public service employers, this principle has been extended to capture the posting of political opinions on social media, because this behaviour undermines perceptions of the employer’s political impartiality (eg. see Comcare v Banerji [2019] HCA 23 ). This case also highlights that the mishandling of disciplinary processes can drastically change their outcome. In this instance, it appears that the employee’s inability to accept or show remorse for her misconduct, coupled with her dealings with management, were material factors in her eventual termination. Get help from an employment lawyer This case serves as a reminder to employees of the value of seeking advice from your union or an employment lawyer during disciplinary processes. At Hall Payne, our award-winning employment lawyers can assist you with any issues or concerns you are having in the workplace. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read more articles about social media and employment: Social media and work – employees be warned Announcing your new role on social media may breach your employment contract https://www.hallpayne.com.au/blog/rss/blog/2023/april/abs-employee-termination-upheld/ Sun, 30 April 2023 00:00:00 In May 2021, the then Australian Building and Construction Commission (‘ABCC’) issued proceedings against the CFMMEU and two of its officials for breach of right of entry laws. In February 2022, the Federal Circuit Court ordered penalties on the union and its officials by way of fines. On appeal, it was argued that these fines were manifestly excessive. The appeal court agreed, resulting in a reduction in fines by a total of over $54,000. The appeal Hall Payne was engaged by the CFMMEU and the two officials in an appeal against the penalty judgment of the Federal Circuit Court, which was delivered on 3 February 2022. At first instance, our clients were fined: CFMMEU - $119,880 First official - $7,992 ; and Second official - $10,656 . Our appeal was filed on 18 February 2022 and came before the appeal court for hearing on 12 September 2022. On appeal ( CFMEU v Fair Work Ombudsman [2023] FCA 72), we argued that the penalties imposed were manifestly excessive, and the Federal Court agreed. The effect of the successful appeal is that the penalties that were imposed upon our clients were reduced by a total of $54,608 . This amount was then refunded to our clients by the Commonwealth. Errors conceded by ABCC (now Fair Work Ombudsman) Partway through the hearing, the respondent (then the Australian Building and Construction Commission, now the Fair Work Ombudsman), belatedly conceded three grounds of appeal. As a result, the court went about re-determining the correct penalties to be imposed upon our clients in place of the incorrect ones. The errors which were conceded were as follows: The primary judge failed to take into account the absence of loss or other consequences as a result of the contraventions. The primary judge wrongly took into account, as circumstances of aggravation, certain matters which should not have been relied upon for this purpose. The primary judge failed to take into account a clearly articulated argument that since the second official had ceased to be a permit holder, there was a diminished need for specific deterrence. Appeal court re-determines more appropriate penalties Once the conceded errors had been accepted by the appeal court, the matter moved on to an orthodox process of re-determining more appropriate penalties. In the process, the appeal court analysed the authorities relevant to the penalty setting exercise, including the High Court decision in Pattinson . Specifically, the appeal court examined whether and in what circumstances a penalty at or approaching the maximum should be imposed on a contravener with a long history of contraventions. Importantly, the court accepted our arguments in this regard and did not impose anywhere near the maximum penalty on any of our clients. In doing so the appeal court rejected the contrary arguments of the ABCC. Key takeaways Parties to civil penalty proceedings should carefully scrutinise any penalty judgment to discern whether they contain any error, particularly given the confusion created by the recent decision of the High Court in Pattinson . Hall Payne Lawyers’ award-winning employment law team can assist in relation to any potential penalty appeal. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/april/cfmmeu-fines-reduced-on-appeal/ Sun, 23 April 2023 00:00:00 The Full Bench of the Fair Work Commission (‘FWC’) has quashed the approval of Mantle Group Hospitality’s Hot Wok Food Makers Workplace Agreement 2021 (‘the Hot Wok Agreement’). In finding that the agreement was incapable of having been ‘genuinely agreed to’ , the Full Bench noted the employer’s “ deliberate manipulation of the statutory process of making enterprise agreements ”, with the General Manager of the FWC referring Mantle Group’s HR Manager to the Australian Federal Police for potential criminal prosecution. You can read the full decision of United Workers’ Union v Hot Wok Food Makers Pty Ltd [2023] FWCFB 4 here. Background The Hot Wok Agreement won the approval of the FWC’s then Deputy President Amanda Mansini in 2021. Soon after, Mantle Group began to move workers from the zombie deal Staff Services Pty Ltd Certified Agreement (‘Staff Services Agreement’), a non-union agreement form the early 2000s that had allowed Mantle Group to avoid paying penalty rates, to the recently approved Hot Wok Agreement. In December 2021, an employee made an application to the Fair Work Commission to terminate the Staff Services Agreement. Upon being contacted by the Commission, a number of employees sent emails supporting the termination and reporting that when news of the ‘complaint’ had come out, Mantle Group had attempted to transfer them to the Hot Wok Agreement. Commissioner Hunt of the FWC found it appropriate to terminate the Staff Services Agreement labelling it a “ disgrace ” which had “ knowingly deprived a large number of employees of penalty rates, to which they would have otherwise been entitled under the relevant award ”. Turning her attention to the replacement Hot Wok Agreement, Commissioner Hunt commented that the Agreement could “ never satisfy the BOOT ” (the “better off overall test”) due to a clause allowing Mantle Group to pay workers ordinary rates – even when entitled to penalty rates – where they had entered into a ‘voluntary hours’ arrangement. Soon after, the United Workers Union (UWU) appealed the 2021 decision to approve the Hot Wok Agreement on the grounds that: the Agreement did not pass the Better Off Overall Test (BOOT); the Agreement was not genuinely agreed to by the relevant employees covered by the Agreement; the group of employees covered by the Agreement was not fairly chosen. Despite a delay in filing the appeal, the Full Bench granted an extension of time, citing the “interests of justice” and “overwhelming merit” of the grounds of appeal. The Hot Work Agreement did not pass the better off overall test (BOOT) The Full Bench agreed with the UWU’s assertion that the Hot Wok Agreement was incapable of passing the BOOT as required under s 186(2)(d) and s 193 of the Fair Work Act 2009 (Cth) (‘FW Act’). The primary issue considered was the impact of the voluntary hours clause of the agreement, which waived penalty rate entitlements where employees had voluntarily requested certain hours. The Full Bench agreed with Hot Wok’s characterisation of the Agreement as a loaded rates agreement, meaning that employees who entered ‘voluntary hours’ arrangements received higher rates of pay in compensation for waiving their entitlements to penalty rates. While such arrangements do not necessarily fall afoul of the BOOT, with respect to this Agreement and the common practices and arrangements of Mantle Group Hospitality, the Full Bench found the Hot Wok Agreement significantly deficient. In particular, the FWC noted that although the Agreement offered a higher base rate of pay than the award entitlement, it made no provision for wage rises, ultimately resulting in lower rates of pay than those in the relevant awards. They further raised difficulties in distinguishing between ‘directed’ and ‘voluntary’ overtime, an issue complicated by Mantle Group’s practice of transferring employees from the soon to be terminated zombie Staff Services Agreement and requiring them to participate in voluntary hours arrangements as part of that transfer. Ultimately, the Full Bench held that the “ Hot Wok Agreement fails the BOOT, and it fails by a very wide margin ”. The Hot Wok Agreement was not genuinely agreed to by relevant employees The Full Bench further found that the Hot Wok Agreement had not been genuinely agreed to by a group of employees that would be covered by the Agreement, as required under s 186 and s 188 of the FW Act. The group of employees covered by the Agreement was not fairly chosen Despite attempting to portray themselves as carrying out basic bar/hospitality or clerical work, the four employees who had been listed by the HR manager as having voted to accept the Agreement, were found by the Commission to not fall under any relevant classification contained under the Agreement. Rather, the voting pool was comprised of exclusively managerial staff including two venue managers, an area manager and a payroll manager. The Bench stated that: “ The selection of four relatively high-paid managers to ‘make’ the Hot Wok Agreement was part of a deliberate manipulation of the statutory process for making enterprise agreements. Their approval of the agreement, which was subsequently to apply to a host of employees who were not to be given the opportunity to bargain or vote, was entirely lacking in authenticity and moral authority ”. In considering oral evidence provided by the four employees, the Full Bench found that they - with the exception of one - lacked credibility with “ numerous inconsistencies, improbabilities and evasions in the evidence given ”. One employee failed to recall the location of the voting process, how he voted, or even whether he was alone at the time that the vote took place. From the evidence provided, the Bench deduced that the two information sessions and the voting meeting, which the HR manager claimed he and the four employees attended, never took place. HR Manager found to be “deliberately misleading” the Commission When asked to give evidence before the Commission, HR Manager Mr Latham refused to answer almost all questions relating to declarations he made in the course of approving the Hot Wok Agreement, for fear of self-incrimination. Regardless, the Full Bench found that he was “ involved in a deliberate misleading of the Commission ” regarding his compliance with directions given by Deputy President Mansini. At the time the Hot Wok Agreement was first approved, Mr Latham was directed to provide a statement of Commissioner Harper-Greenwell to any transferring employee covered by the Staff Services Agreement. In demonstrating compliance with this direction, the Commission was provided with an email attaching the Deputy President’s statement which was sent to 10 employees. On the evidence before them, the Commission determined that at best one, and perhaps none, of those employees were covered by the Staff Services Agreement. The Bench concluded that the email “ was constructed to deceive the Commission into believing that Hot Wok had complied with its direction ”. The Bench further found that there was ample evidence to conclude that the information provided by Mr Latham in his declarations with respect to information sessions, the voting process and the composition of the voting pool was “ false or misleading ”. The Bench noted that providing false or misleading information to the Commission was an offence under ss 137.1 and 137.2 of the Commonwealth Criminal Code and that: “ the process for considering applications for the approval of enterprise agreements would break down entirely if, in every case, the Commission was required to ‘go behind’ and investigate for itself the truth of the matters asserted in such declarations ”. Following a request to the General Manager of the FWC, Mr Latham was referred to the Australian Federal Police for criminal prosecution. The decision approving the Hot Wok Agreement was quashed. Conclusion The Hot Wok decision demonstrates how the statutory process for the creation of workplace agreements between employers and employees is heavily reliant on the integrity and honesty of both parties in complying with the requirements of the legislation. In this instance, the Full Bench has demonstrated its ability and willingness to overturn agreements that fail to meet those requirements and to ensure businesses and individuals who fail to comply with the law are held to account. Get help from an employment lawyer If your workplace has an enterprise agreement, or is in the process of negotiating an agreement, and you have any concerns about the process and protection of your rights and entitlements, you should speak with your union or one of our award-winning employment lawyers . Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/april/sham-agreement-quashed/ Mon, 17 April 2023 00:00:00 Choosing the right legal structure is an important decision for any organisation. For many not-for-profit and non-trading organisations, be they charities, community groups, or sporting clubs, the decision will often narrow down to a trust, incorporated association or company limited by guarantee. Here, we explore the differences between registering a charity or not-for-profit as an incorporated association or a company limited by guarantee. What is a company limited by guarantee? As its name suggests, a company limited by guarantee, (also commonly referred to as a ‘guarantee company’) is a company (or corporation) which, upon incorporation (or registration) is granted its own separate legal identity along with a myriad of other benefits and entitlements . Incorporation is often the paramount consideration for many organisations seeking to limit the exposure of its officers and members to risk and liability. Unlike other types of corporations, however, a company limited by guarantee does not have shareholders or a share capital (shares). Instead, it is made up of members who agree, or ‘guarantee’, to contribute a specified amount (usually a nominal amount) towards any undischarged liabilities should the company be wound up or become insolvent. Having no shareholders or dividends does not mean that a company limited by guarantee is prohibited from earning profits. It does mean, however, that any surplus must be reinvested towards the organisation's objectives. This provides members and participants of the organisation with some comfort knowing that their contributions will benefit all, and not individual persons. Companies limited by guarantee are generally subject to greater and more frequent reporting obligations than incorporated associations, and are overseen by a large national regulator, the Australian Securities and Investment Commission (ASIC). Reporting obligations are intended to ensure accountability to members and the broader community. While these obligations may come at a cost (for example, higher establishment fees and ongoing costs), many perceive that cost as a small price to pay for peace of mind. What is an incorporated association? An incorporated association is a corporation not unlike a company limited by guarantee. It is granted its own separate legal identity from that of its members, and it is precluded from distributing any dividends or income directly to members. Where the two diverge is, principally, a matter of jurisdiction. Incorporated associations are registered under the State or Territory’s laws in which they are located, as opposed to a company limited by guarantee, who is registered under federal law and recognised throughout the whole of Australia. The laws in each State and Territory governing incorporated associations typically provide for greater ease of compliance and comprehension than their federal counterpart, to enable smaller organisations to establish and operate efficiently and economically. This often translates to reduced and less onerous reporting obligations than guarantee companies.  Registering a charity as a company limited by guarantee or incorporated association Guarantee companies and incorporated associations are unable to distribute profits, or ‘dividends’, to members. It is the combination of this attribute, along with incorporation that makes them particularly attractive to organisations seeking to register as a charity. Organisations seeking to attain registered charity status, and the many tax concessions that accompany it, must be able to demonstrate to the Australian Charities and Not-for-profits Commission (ACNC) that they are not-for-profit. While other legal structures, by their nature, satisfy this not-for-profit requirement, the company limited by guarantee structure offers incorporation at a national level, throughout Australia. Company limited by guarantee vs incorporated associations For most not-for-profit and non-trading organisations, the choice of legal structure will narrow down to two options: a company limited by guarantee; or an incorporated association. Incorporated associations provide a relatively inexpensive and straightforward means of incorporation and this structure is designed for smaller clubs and other not-for-profit associations and societies. However, their registration at a State or Territory level can hinder the organisation’s ability to carry on its affairs and business outside the State or Territory in which they are registered. The initial fees to establish a company limited by guarantee are higher than for an incorporated association and the ongoing costs are generally greater too. Registering a charity or not-for-profit at a State or Territory level Each Australian State and Territory has its own regime for the incorporation of associations, which is typically far less onerous than the regime provided by the national corporations legislation. However, unlike the national corporations legislation, the legislation in each State and Territory may differ and they are by no means uniform. Some State and Territory regimes can restrict incorporation to only associations formed for specific purposes. For example, in Queensland, school council or parents and citizens associations are precluded from incorporation under the Associations Incorporations Act 1981 (State-based legislation). Incorporation is also not always available simply on compliance with the requirements set out in the respective legislation of that State or Territory. Registration may depend on the discretion of the respective regulator or official administering that legislation. The respective legislation may provide for discretionary power to the regulator to refuse a certificate of incorporation to an association in circumstances where it would be inappropriate or undesirable. Conclusion A company limited by guarantee legal structure is ideally suited to many not-for-profit and non-trading organisations, including charities, community groups, and sporting clubs. It remains the most appropriate method of incorporation in circumstances where the activities of an organisation extend beyond a single State or Territory. But it is not a ‘one-size fits all’ proposition. The complexity of the national corporations legislation and the relatively higher cost involved in complying with it have made it difficult for some organisations to implement the necessary changes to adapt to this legal structure. Before embarking on the process to incorporate as a company limited by guarantee, organisations should seek specialised legal advice to determine whether the structure is right for them. Speak with a lawyer who helps not-for-profit organisations Hall Payne Lawyers have extensive experience and expertise assisting and advising charities, community and sporting groups and not-for-profit organisations. If your organisation is contemplating incorporation or adopting a different legal structure, contact us to arrange a consultation with one of our team. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/april/nfp-business-structure/ Mon, 10 April 2023 00:00:00 Many Australian workers participate in employee incentive schemes designed to deliver a performance bonus if the employee achieves set objectives or targets over a certain period. A common dispute arises when a performance bonus is not paid due to a “discretion of the employer” clause in the Bonus Scheme Rules, a workplace policy or employment contract. In this blog, we look at the situation where your employer refuses a ‘’bonus’’ payment on the basis of the “employer’s discretion” and what your options are. Bonus schemes are supposedly used to motivate, incentivise and influence employee behaviour. Often, an employee will be employed on a base salary and a bonus that will or, more problematically, may be payable if the employee (or the business) satisfies certain performance criteria set out in company policy or in an individual employment contract. Has your employer denied payment of your performance bonus? Reference to bonuses in your employment contract (or in company policies) may mean that you have: an absolute entitlement to the bonus if you (or the business) meet certain criteria; or through a more complex arrangement, a right to participate in a “discretionary” bonus scheme where some components of the scheme are yet to be determined and may be modified from time to time. Bonuses can take many forms, from cash payments to awards of various types of equities in the business. They can be based on your contract, employer policies, or Incentive Plans with complex rules. There can be complexities for a breach related to any of the above, and it’s crucial that employees who have had a ‘’bonus’’ denied by the employer seek advice early from a lawyer experienced in employment law . GET HELP FROM AN EMPLOYMENT LAWYER:  1800 659 114 1.  An absolute entitlement An absolute entitlement to a performance bonus is where the employment contract guarantees the payment of a certain amount to an employee subject to the employee meeting certain individual performance criteria. The employer has no discretion to withhold payment. Here’s an example: In addition to your base salary, you will be paid a financial bonus of 10% of gross sales above $250,000 in each financial year. This amount will be payable in the first pay period after 30 June of each year. The bonus will be paid pro-rata if you do not complete a full year of service with the company. In this category, when the criteria is met, you are entitled to the payment, and it is a breach of contract for the employer to refuse to make payment, all else equal. However, most bonus schemes are not as simple as the example and frequently purport to be discretionary or may be contingent on such things as the overall performance of the business. The devil is inevitably in the detail of the contractual terms governing your particular bonus scheme or entitlement. Case review: breach of contract with an absolute right to a bonus The Full Federal Court’s decision in  Walker v Citigroup Global Markets Australia Pty Ltd (2006) 233 ALR 687; [2006] FCAFC 1001 remains a poignant example for employers who may unlawfully terminate an employment contract containing an absolute right to a bonus payment. Mr Walker was employed in a senior research role with an investment bank when he was headhunted by Salomon Smith Barney (‘ SSB’ ). SSB offered him a position of Resources Analyst for a $275,000 annual salary for the first year, accompanied by a “guaranteed minimum bonus of $250,000” and a subsequent promotion at that time. Due to the notice period with his current employer, among other things, the parties arranged for the position to commence sometime later and agreed on certain contractual terms. Shortly before Mr Walker’s employment with SSB was due to commence, they underwent a merger with Citigroup, and Mr Walker’s employment contract was terminated. Accompanying the letter of offer Mr Walker and SSB had exchanged were standard form contractual terms which contained, among other things, a one-month termination clause. For the purposes of this article, the relevant issue was whether Mr Walker was entitled to the guaranteed minimum annual bonus. The Full Federal Court held that he was because: in interpreting the employment contract, where a precise offer has been made by an employer that is accompanied by generic standard form contractual terms, the parties intended the specific to override the general; the parties must have intended the term providing for one month termination without cause to only apply after the first year had been served; and so it followed that Mr Walker was entitled at the very least to the 12-month salary and the accompanying absolute bonus entitlement. The Court assessed damages in respect of the first year of Mr Walker’s employment at $586,806.00 (including interest). As an additional matter, the Court found that merely because Mr Walker may have been terminated on one month’s notice after that time, in the circumstances, he would probably have remained in the new role for several years but for the repudiation. And so, he was awarded further compensation for that assessed period – an additional $2,346,553.00. 2.  A discretionary bonus A discretionary bonus is not as black and white. This is where the employment contract promises the payment of a certain amount subject to meeting the criteria and the employer deciding to give the bonus. For cases falling within this category, it may be a breach of the contract for the company to refuse to pay the bonus where the employee has met the contractual criteria, and the employer exercises their contractual discretion unreasonably, capriciously or otherwise improperly. In the ordinary course a contractual discretion of this nature will be improperly exercised when done for a purpose inconsistent with the scope that the parties intended the discretion to have when they made the agreement. This category becomes clearer through the below case review. Case review: bonus withheld unlawfully The New South Wales Court of Appeal’s decision in Silverbrook Research Pty Ltd v Lindley [2010] NSWCA 357 is an important case on the exercise of discretion. In this case, Dr Lindley’s contract relevantly provided that, subject to her performance being assessed against objectives to be set by her employer, she would be entitled to a $40,000 annual bonus. One of the problems Dr Lindley faced was the fact that the company did not set any objectives or goals. The company effectively submitted to the court that Ms Lindley could not be entitled to the performance bonuses because she could not possibly meet targets which did not exist and, in any event, the contract provided it was “entirely within their discretion”. In determining this element of the dispute in Dr Lindley’s favour, the reasoning that may be distilled from the majority of the Court is that: the employer had a contractual obligation to set performance scheme targets; though there was a contractual discretion as to what those targets may be, the scope of that discretion must be understood in line with the proper scope and purpose of the contract; that proper scope and purpose relevantly entailed rewarding employees for their service to the company; it followed then that any setting of performance-based targets must be done honestly and in conformity with this purpose; an arbitrary or capricious withdrawal of a target or the bonus would be impermissible in the contract even if the targets had been set; the fact that Dr Lindley had a specific bonus entitlement upon meeting the discretionary targets was a valuable part of the overall remuneration package, and so the employer would not have had a discretion to set targets which, on the objective evidence, would have been unachievable; the employer has breached the agreement and, given the competency of Dr Lindley as an employee, it could be inferred that had the company set the targets within the bounds of their lawful discretion, then Dr Lindley would have met those targets. Dr Lindley was awarded compensation in the amount of over $53,000. Remedies available if your performance bonus has not been paid There are a number of remedies available to employees who have been denied payment of a performance bonus. The type of remedy is determined by the specific facts of each individual case. We will look at three options. 1.  Breach of employment contract Where an employer has unlawfully withheld a bonus in breach of an employment contract, the employee is entitled to be put into the position that they would be in had the contract been properly performed. Generally, this will at least entail compensating the employee with payment of the bonus that they ought to have received. However, as the case of Walker v Citigroup discussed above illustrates, where the breach depriving the employee of the bonus also deprived them of the probability that they would have remained in employment, then further compensation may be ordered. 2.  General protections claim Apart from the contract of employment, section 341(1)(c) of the Fair Work Act 2009 (Cth) renders unlawful, an employer taking adverse action against an employee because of, for example: the employee made a complaint that their bonus entitlement has been withheld or that the exercise of their employer’s contractual discretion has been unfair or improper; the employee made an inquiry as to why the employer set the bonus objectives so high because they seem unachievable . Where an employee has not been paid a bonus or has had a discretionary bonus exercised differently to their peers because of that employee’s race, sex, gender, or other characteristic protected by section 351 anti-discrimination provisions, which also form part of the general protections regime, then that will also constitute unlawful adverse action. Where an employer breaches the Fair Work Act’s general protections, the court has an expansive compensatory jurisdiction to provide the employee with a remedy. Depending on the circumstances, employers may face civil penalties for the breach as a deterrent, which may be made payable to the employee. 3.  Section 31 of the Australian Consumer Law The Australian Consumer Law may also provide a remedial avenue for an employee who has relied upon an employer’s representation that they will be paid a bonus, particularly if the employee has relied upon the representation to their detriment. Section 31 renders unlawful conduct which, in relation to employment being offered, is liable to mislead persons seeking employment as to, relevantly: the terms and conditions of the employment; or any other matter relating to the employment. This section is an important protection for employees who may have left one place of employment acting on, for example, a recruiter’s promise of an attractive bonus remuneration package. Notably, an alternative argument was made by Mr Walker (in the above case review) under a predecessor of this provision. The basis of the remedy awarded under this section does not ensure that the employee receives the benefit of the representation that they relied upon (for example, payment of the performance bonus) but involves a comparison between what position the employee would have been in had the unlawful conduct of the employer not occurred. Get help from an employment lawyer Many employers will rely on their “discretion” to deny payment of a bonus. However, the employer cannot simply choose arbitrarily, capriciously or unreasonably not to pay the bonus where the set objectives have been satisfied. The law around non-payment of performance bonus entitlements can be complicated and can also often raise more complex issues. Employees may have been unlawfully terminated or have suffered reputational damage . If your performance bonus has been denied, it is crucial that you seek legal advice early. Our award-winning employment law team can assist you. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: Employee rights in workplace investigations I've got a new job. What should I be looking out for in my employment contract? What is Unfair Dismissal and what are my options? Am I being bullied or is it reasonable management action? Worker awarded over $130,000 compensation after employer breach of employment contract https://www.hallpayne.com.au/blog/rss/blog/2023/april/discretionary-bonus-schemes/ Mon, 03 April 2023 00:00:00 In the 2022 case of Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited [2022] HCA 11 (‘ Tapp’ ), the High Court of Australia considered the issue of duty of care when there is an obvious risk of injury. The case involved a participant, Ms. Tapp, who suffered injuries while participating in a campdrafting event and claimed that the injuries were a result of the negligence of the Australian Bushmen's Campdraft & Rodeo Association Limited (ABCRA), the organisers of the event. The key issue in the case was whether or not the risk of injury from participating in the campdrafting event provided an "obvious risk" defence for the ABCRA. What is the “obvious risk” defence? Under Australian law, a person is not liable for injuries suffered by another person if the risk of those injuries was "obvious" and the injury occurs as a materialisation of the inherent, obvious risk. This is known as the "obvious risk" defence. This defence is extended in cases of dangerous recreational activities in New South Wales, Queensland, Western Australia, and Tasmania. In the Tapp case, the High Court considered the application of section 5L of the Civil Liability Act 2002 (NSW) to determine whether Ms Tapp’s injury occurred as a result of the materialisation of an obvious risk of the dangerous recreational activity of campdrafting. This provision (which has similar wording to the related provisions in the above State jurisdictions) reads: 5L No liability for harm suffered from obvious risks of dangerous recreational activities A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. This section applies whether or not the plaintiff was aware of the risk. The Court determined that this defence was not made out as Ms Tapp's injury was not due to the materialisation of an obvious risk from her participating in a dangerous recreational activity; but rather caused by the dangerous conditions surrounding her participation—horses slipping on slick ground— which did not constitute an obvious risk to a reasonable person. The facts in Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited Tapp was an experienced 19-year-old campdraft competitor. On January 8 2011, she participated in a campdrafting event organised by the ABCRA. That afternoon, and prior to Ms. Tapp's fall, four other seasoned competitors dangerously fell off their horses. Stanton, an experienced competitor, suggested stopping the competition because of the slick ground conditions after the third fall, but the competition organisers ignored the warning. After the fourth fall, Mr. Stanton told event organisers the ground was "unsafe" and should not be used. Organisers delayed the competition to discuss the situation, but ultimately decided to proceed with the competition. That afternoon, Ms. Tapp competed. Like the four earlier competitors who fell from their horses, Ms. Tapp’s horse slipped in the arena, causing her to fall and injure her back. As a result of this fall, Ms Tapp suffered severe and permanently impairing spinal injuries. Ms. Tapp lodged a public liability claim seeking damages for the injuries she sustained in the fall. Supreme Court of NSW rules ABCRA did not breach its duty of care Ms. Tapp’s initial court case was unsuccessful. The Supreme Court of New South Wales ruled that the Association had not breached its duty of care and that any breach was not causally linked to Ms. Tapp's injuries. Rather, the court ruled that the injuries were due to the "materialisation of an obvious risk of a dangerous recreational activity." A majority of the Court of Appeal dismissed Ms. Tapp’s appeal. Tapp appeals to the High Court of Australia In the High Court, a majority (Gordon, Edelman, and Gleeson JJ) found that the respondent (ABCRA) had breached its duty of care by failing to halt the event until its organisers inspected the arena and determined its conditions were safe, despite the inherent risks associated with the activity. The High Court also concluded that: Tapp's injuries were caused by the event organiser's breach of duty of care; and that the risk of physical injury arising from a horse slipping on the slick surface was not obvious to a reasonable person. Thus, Ms. Tapp's injuries were not the result of an obvious risk associated with a dangerous recreational activity. Rather, the Court determined that the injuries suffered by Ms. Tapp were due to dangerous conditions (i.e. the obscure risk of horses slipping on slick ground conditions), and not as an obvious risk materialisation. The statutory "obvious risk" defence under section 5L of the Civil Liability Act 2002 (NSW) was not established in this case. Ms. Tapp was awarded over $6.5 million in common law compensation for her injuries. Implications of this High Court ruling To satisfy their duty of care to participants, organisers of events or activities must have an emphasis on identifying and remedying dangerous conditions, even where there is an ostensibly obvious risk associated with the dangerous recreational activity. For the “obvious risk” defence to apply, the injury must arise directly from the obvious risk in a dangerous recreational activity, and not by some other supervening factor, for example, faulty equipment provided by the organiser, dangerous facilities, lack of safety protocols for the venue etc. Get help from a personal injury lawyer for claims arising out of negligence When considering suing for negligence after an injury during participation in an inherently dangerous activity, it is vital to seek legal advice from a solicitor experienced in public liability claims to ensure your rights are protected and you receive the compensation you deserve. Our experienced team of personal injury lawyers can assist you with any queries you have in relation to a potential compensation claim for injuries sustained after participating in dangerous recreational activities. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/march/event-organiser-duty-of-care/ Mon, 27 March 2023 00:00:00 Updated 11 September 2023 The parental leave system in Australia consists of a combination of entitlements, including unpaid parental leave under the Fair Work Act (Cth) ( FW Act ), government funded paid parental leave and employer funded parental leave. Parental leave is often referred to as maternity leave, however, today’s modern parental leave system provides entitlements for a much broader cohort than the birth mother. In this blog, we look at the various parental leave entitlements for employees upon the birth or adoption of a child. https://www.hallpayne.com.au/blog/rss/blog/2023/march/parental-leave/ Mon, 20 March 2023 00:00:00 There are some unpaid work arrangements that are lawful and some that are not. Whether an unpaid work arrangement is lawful or not depends upon the nature of the arrangement. Often lawful unpaid work arrangements entered into include: vocational placements; unpaid internships; unpaid work experience; and unpaid work trials. Depending upon the nature of the arrangement, a person doing the work may actually be an employee and be entitled to the minimum rate of pay (for the relevant type of work) and any other minimum employment entitlements. Whether or not the arrangement is lawful or not, depends upon: whether an employment relationship exists; or whether the arrangement involves a vocational placement. When does an employment relationship exist? If an employment relationship is found to exist, the worker should be paid for the work they do. To determine whether an employment relationship exists, the following factors should be considered: What is the nature and purpose of the unpaid work arrangement? Was it to provide a learning experience or was it to get the person to do work to assist with the ordinary operation of the business or organisation? Where the arrangement involves productive work (for example, work that a business would ordinarily have to pay a person to do) rather than just meaningful learning, training and skill development, it is likely to be an employment relationship. How long is the unpaid work arrangement for? The longer the period of the work arrangement, the more likely the person is an employee. Although even relatively short engagements can still be an employment relationship. How significant is the unpaid work arrangement to the business? Is the work normally performed by paid employees? Does the business or organisation need this work to be done? The more integral the work is to the function of the business, the more likely it is that an employment relationship could be found. What are the person's obligations to the business? In some cases, a person engaged in unpaid work might do some productive work to aid their learning. An employment relationship is unlikely to be found in these circumstances if: the role is primarily observational; and the expectation or requirement to perform such activities is incidental to the learning experience and not primarily for the operational benefit of the business or organisation. Who benefits from the unpaid work arrangement? The main benefit from a genuine unpaid work arrangement should flow to the person undertaking the role. If the business or organisation is gaining a significant benefit from the person's work, an employment relationship is more likely to exist. For more information about employment relationships, you can read our earlier blog, “Case review - when does unpaid work constitute employment?” Are vocational placements lawful unpaid work? A vocational placement is a formal work experience arrangement that is part of an education or training course. Vocational placements that fall within the Fair Work Act definition are lawfully unpaid, regardless of whether an employment relationship exists or not. The definition of a vocational placement under the Fair Work Act  means a placement that is: undertaken with an employer for which a person is not entitled to be paid any remuneration; and undertaken as a requirement of an education or training course; and authorised under a law or an administrative arrangement of the Commonwealth, a State or a Territory. The Fair Work Ombudsman explains that for a vocational placement to be lawful , the following criteria must be met: There must be a placement. This can be arranged by the educational or training institution, or a student may initiate the placement with an individual business directly, in line with the requirements of their course. There must be no entitlement to pay for the work the student undertakes. Where a student’s contract with the host business or organisation entitles them to receive money for the work they perform, the vocational placement will likely have turned into an employment relationship. Similarly, work arrangements covered by industrial awards or agreements are not vocational placements. The placement must be done as a requirement of an education or training course. The placement must be a required component of the course as a whole, or of an individual subject or module of the course. It doesn’t matter whether that subject is compulsory or an elective chosen by the student. The placement must be one that is approved. The institution delivering the course which provides for the placement must be authorised under an Australian, state or territory law or an administrative arrangement of the Commonwealth or a state or territory to do so. Courses offered at universities, TAFE colleges and schools (whether public or private) will all satisfy this requirement, as will bodies authorised to offer training courses under state or territory legislation. You can read more about vocational placements, including examples, on the Fair Work Ombudsman website here . Are unpaid job trials lawful? Before commencing a new job, employers often ask for a work trial to be undertaken. This trial is generally an unpaid short shift in the workplace to help determine a person’s suitability for the job. A work trial can legally be unpaid if it is necessary to evaluate a person’s suitability for the role. The Fair Work Ombudsman explains that a job trial can be legal if: it involves no more than a demonstration of the person's skills, where they are relevant to a vacant position; it is only for as long as needed to demonstrate the skills required for the job. This will be dependent on the nature and complexity of the work, but could range from an hour to one shift; the person is under direct supervision of the potential employer (or other appropriate individual) for the entire trial. If a work trial goes beyond a period that is reasonably required to demonstrate skills required for the job, you must be paid for the work you do at the minimum rate of pay. Are unpaid work experience and internships lawful? Work experience or an unpaid internship is often arranged for a person to gain experience in a particular job or industry. An example of this is a university work experience placement. An unpaid work experience arrangement can be lawful if it is a vocational placement or if there is no employment relationship. The Fair Work Ombudsman explains that for the placement to be lawful: the person undertaking the work experience must not be doing “productive work”; the main benefit of the arrangement should be the person doing the placement; and it must be clear that the person is receiving a meaningful learning experience, training or skill development. Worker’s compensation entitlements when performing unpaid work Worker’s compensation schemes are different across Australia, and you should seek advice in your State or Territory if you require further information about any potential worker’s compensation for unpaid work. For information about worker’s compensation for a person engaged in unpaid work in Queensland, please visit the WorkSafe Queensland site . Unpaid interns are considered workers for the purposes of worker’s compensation in Queensland, however, it is crucial to understand the definition of “intern”, which does not include, for example, work experience students, vocational placements or not-for-profit volunteers . Get help from an employment lawyer It is important for people considering undertaking unpaid work to be informed about whether or not they should, in fact, be paid for that work. If you’re concerned or have queries about whether or not your unpaid work is legal, you should speak with your union or a lawyer experienced in employment law. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/march/unpaid-work/ Mon, 13 March 2023 00:00:00 In 2021, Hall Payne Lawyers represented the CFMEU (QLD) in an adverse action claim against BM Alliance Coal Operations Pty Ltd (“BMA”). In January 2023, the Federal Court made an Order in favour of our client. You can read the Orders for CFMEU v BM Alliance Coal Operations Pty Ltd here . Background The case concerned a member of the CFMEU (“the union”) who worked for WorkPac (a labour-hire company) at BM Alliance Coal Operations Pty Ltd’s Daunia mine near Moranbah in Queensland. Specifically, a member of the union had his access to the mine revoked by BMA after raising health and safety concerns. He was given a warning by his employer WorkPac. After an investigation by WorkPac into allegations of misconduct, his employment with WorkPac ultimately came to an end. Case strategy In this case, we used a little-known part of s.342 of the Fair Work Act 2009 (Cth) (“the Act”) to allege that BMA took adverse action against WorkPac and/or the member and that the adverse action was unlawful because it was taken because of, or for reasons that included, the fact that the member had exercised a workplace right. The alleged workplace rights related to the making of safety complaints and the reliance by the member upon Standard Operating Procedures “SOP”). As a preliminary matter, the court accepted that the Standard Operating Procedures upon which the member relied were 'workplaces instruments’ within the meaning of the Act. Further, as another preliminary matter, the court also found that the adverse action alleged by the union did fall within the relevant part of the definition in s.342 of the Act. Court considerations When the court came to consider the substance of the claim, that the action of BMA was unlawful because it was taken for a prohibited reason, the court also accepted our arguments. The court did so because it did not accept the evidence which was brought by BMA to deny that allegation. The court found the evidence of Mr Todd Hennessy, the decision maker from BMA, was “not credible” and “simply implausible”. As such, BMA was unable to discharge its reverse onus. Under the Act, if reverse onus is not discharged, it is assumed that the adverse action was taken for a prohibited reason. Importance of this decision for labour-hire workers This decision follows on from a similar decision by the Federal Court in another CFMEU v BMA matter regarding another member of the union, Kim Star . It confirms that labour-hire workers are protected from actions that are taken against them by somebody other than their legal employer, for example, a host employer such as BMA in this case. Further, the decision is an important one insofar as it confirms that SOPs are of the nature of workplace instruments within the meaning of the Act and are both capable of enforcement and capable of acting to protect workers. Penalties for BMA and compensation for the worker The court will hold a further hearing in May 2023 to determine the quantum of penalty to be imposed upon BMA and the amount of compensation to be paid to the member. We are carefully preparing our material ahead of that hearing and will provide a further update once the outcome of that hearing is known. Get help from an employment lawyer If you are employed by a labour-hire company, and you have any concerns about your workplace rights and entitlements, you should seek advice and assistance from your union or a lawyer experienced in employment law. Hall Payne’s award-winning employment law team can assist you with any issues you have related to your employment, including: unfair dismissal ; employment contract negotiation or disputes ; award rights ; enterprise agreements ; general protections ; disciplinary matters ; discrimination ; and workplace injuries . Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/march/miner-adverse-action-win/ Tue, 07 March 2023 00:00:00 It is estimated that nearly 6 million people volunteer their time, knowledge and expertise through various organisations annually across Australia. Volunteers are not covered by any State or Federal employment awards or workplace agreements , however, they still have workplace rights that are protected in legislation. What is a volunteer? There is no set legal definition of a volunteer , however, the Fair Work Ombudsman considers a volunteer to be: “someone who does work for the main purpose of benefitting someone else, such as a church, sporting club, government school, charity or community organisation. Volunteers are not employees and don’t have to be paid” Volunteering Australia has defined volunteering as “time willingly given for the common good and without financial gain.” The key characteristics of a genuine volunteering arrangement include: The parties did not intend to create a legally binding employment relationship; The volunteer is under no obligation to attend the workplace or perform work; and The volunteer doesn’t expect to be paid for their work. The Fair Work Ombudsman provides that the more formalised a volunteer work arrangement becomes, the greater the possibility that an employment relationship will be found. Your rights as a volunteer The Volunteering Australia website has produced a checklist of your rights as a volunteer. As a volunteer, despite not being paid, you still have the right: to work in a healthy and safe environment; to be interviewed and engaged in accordance with equal opportunity and anti-discrimination legislation ; to be protected from workplace bullying ; to be adequately covered by insurance (for example, public liability insurance ); to be given accurate and truthful information about the organisation for which you are working; to be reimbursed for out-of-pocket expenses; to be given a copy of the organisation’s volunteer policy and other policies that affect your work; not to fill a position previously held by a paid worker; not to do the work of paid staff during industrial disputes; to have a job description and agreed working hours; to have access to a grievance procedure; to be provided with orientation to the organisation; to have your confidential and personal information dealt with in accordance with the Australian Privacy Principles; and to be provided with sufficient training to do your job. Your obligations as a volunteer Volunteering Queensland explains that volunteers have a responsibility to: be reliable; respect confidentiality; carry out the tasks defined in the role description; be accountable; be committed to the organisation; undertake training as requested; ask for support when they need it; give notice before they leave the volunteer role; value and support other team members; carry out the work they have agreed to do responsibly and ethically; notify the organisation as soon as possible of absences; and adhere to policies and procedures. As a volunteer, there is an expectation that you act in accordance with the organisation’s policies and codes of conduct. Work Health and Safety and volunteers Depending upon whether the organisation you are volunteering for employs anyone to carry out paid work determines whether or not Work Health and Safety ( WHS ) laws apply. If the organisation pays a person to carry out work, then you (and the organisation) are covered under the relevant WHS legislation and therefore have WHS duties. If the organisation is only made up of volunteers, then the organisation and its volunteers are not covered under any WHS legislation and therefore do not have any WHS duties. Despite not having any WHS duties in these circumstances, it is still important to always take care to do what the organisation has directed you to do in a safe way. A volunteer must take reasonable care for their own health and safety and take reasonable care to not adversely affect others’ health and safety. In Queensland, Under the Work Health and Safety Act 2011 (Qld) (the WHS Act ), a person is a volunteer if they are acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses). If you are a volunteer under the WHS Act, you are also a worker. This means that the organisation you volunteer for must provide you with the same protections as its paid workers. This also means that a volunteer also has duties under the WHS Act. Safe Work Australia provides a helpful guide about Work Health and Safety for Volunteers . Worker’s compensation rights for volunteers Worker’s compensation schemes are different across Australia and you should seek advice locally if you require further information about any potential worker’s compensation for volunteers in your State or Territory. It is important to note that volunteers are not considered ‘workers’ for workers’ compensation purposes under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) ( WCR Act ). Worker’s compensation for volunteer emergency services (firefighters) Under s15 of the WCR Act, a volunteer firefighter in Queensland may be covered by WorkCover and be entitled to compensation for “ injury sustained only while attending at a fire, or practising, or performing any other duty, as a volunteer.” Worker’s compensation for volunteer emergency services varies across Australia. You should seek advice locally if you require further information about worker’s compensation for volunteer emergency services workers in your State or Territory. Get help from an employment lawyer If you’re a volunteer and you believe the organisation(s) you are volunteering at is not adhering to their obligations, contact us for advice on your options. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/march/volunteer-workplace-rights/ Mon, 06 March 2023 00:00:00 When you consult with your doctor or are admitted to hospital in NSW, you expect to get the best treatment available and to feel safe and cared for. Medical practitioners, specialists, allied health professionals and hospital staff in NSW are highly trained and skilled so, naturally, you put all your faith and trust in them. Unfortunately, sometimes individuals can become injured or ill due to the treatment, or lack of treatment or care of a medical professional. In this blog, we explore the options for those people to sue for medical negligence in NSW . What is medical negligence? Medical negligence, or medical malpractice, is a circumstance where a medical professional or medical institution breaches their duty of care to a patient. This may be due to an inaccurate diagnosis, a failure to diagnose or due to treatment that results in bodily harm. This harm can be physical or psychological in nature. There is a standard of care that all medical providers must follow. Medical negligence is determined by proving that the medical professional or medical institution breached their duty of care and did not follow this very strict standard. Breach of duty of care and medical negligence claims There are a set of common law principles in medical negligence law. These are based on written case law and are assessed by medical negligence lawyers to establish if there was negligence by the health provider (an individual health practitioner or an organisation like a hospital), which resulted in harm to a patient, warranting a medical negligence claim. They are as follows:  The medical provider owed the patient a duty of care. By an action or omission, the medical provider breached that duty of care. That action or omission caused the patient physical, psychological and/or financial harm. What is duty of care? Duty of care is in a medical setting means that medical health providers owe their patients a particular standard of care that contributes to their patient's recovery from an injury or illness. Duty of care also envelops the idea that medical providers must take all reasonable actions to eliminate the risk of further harm to a patient. Duty of care is taken very seriously by medical providers and if they are found to be negligent in performing their duty of care, they may be liable to civil action or medical negligence action. How can I tell if I have a medical negligence claim? Fortunately, instances of medical negligence are rare but do happen. You may have a medical negligence claim if, for example: your prescription was incorrectly ordered or incorrectly filled, causing a negative health event; you started feeling ill following the administering of improperly prescribed medication; your health deteriorated following failure to properly investigate your illness; your medical problem has been misdiagnosed or there is a delay in diagnosis, causing you further pain, discomfort, injury, illness or a further trip to the hospital. There are too many instances to list where you may have been the victim of medical negligence. By their nature, medical negligence claims are complex. Not all instances are able to be pursued as the medical errors may not amount to medical negligence as defined by the law. That is why it is critical to allow medical negligence lawyers to review your circumstances to see if you have a meritorious claim. WE'RE JUST A PHONE CALL AWAY:  1800 659 114 What compensation can be recovered if I pursue a medical negligence claim? Once your lawyer determines you have a reasonable cause of action in medical negligence, you will be able to claim various damages: Additional medical expenses; Loss of income; Rehabilitation costs; Pain & suffering; Loss of enjoyment of life; Home care and assistance. It is most important to note that every claim is different, so it is essential that you seek expert legal advice before proceeding with a claim. Time limits to lodge a medical negligence claim in NSW It should be noted that there is a three-year time limit on all medical negligence cases in New South Wales. This means if you are over 18 years of age and you feel you have been the victim of medical negligence, you have three years to commence a lawsuit against the relevant party. In some cases, the effect of negligent care or treatment may not come to the surface until a period of time after the incident. If you fall into this category and you think you are out of time to make a claim, it is crucial that you obtain legal advice about your options to commence a claim after the three-year time limit. GET EXPERT LEGAL ADVICE ABOUT YOUR ENTITLEMENTS: 1800 659 114 The law does not permit minors to prosecute a claim on their own behalf. Claims on behalf of minors are brought by their parent/s or carer/s who are known as a “tutor” in claim proceedings. The same time limit applies, being three years from the date of injury. Any compensation obtained upon settlement of the claim is usually invested with the Public Trustee until the minor reaches 18 years of age. In the event that the minor’s claim is resolved by way of negotiation, rather than a Court ordered judgment, the resolution of the claim will require the approval of the Court before it becomes binding. The Court needs to be satisfied that the settlement proposed is fair and proper and that the settlement monies will be invested appropriately until the minor reaches the age of 18. How can a medical negligence lawyer help prepare your claim? A medical negligence lawyer will most commonly take the following steps in preparing your compensation claim: They will assess all the information you provide to them and be able to tell whether your claim has any reasonable chance of being successful. They will obtain copies of all your clinical notes relating to your injury/illness. They will seek the opinion of an expert medicolegal specialist who will view the clinical notes and prepare an expert report. This is to determine whether or not the medical provider(s) breached their duty of care towards you, and whether that breach has resulted in injury. If this report is supportive then you will have a cause of action and be able to commence court proceedings. Further evidence will then be gathered to support your claim for your losses. Your solicitor will prepare a thorough statement of claim to be filed in court and obtain all supportive liability evidence and evidence of your losses in order to maximise the success of your claim. Once your lawyer has gathered all the necessary evidence and determined you have a medical negligence claim, the medical providers’ insurer will be approached to see if they are willing to engage in settlement negotiations. If a settlement cannot be reached, formal legal proceedings will be commenced by filing Court documents, and the court will order that the parties take part in a mediation to attempt settlement of the claim. Fortunately, the majority of medical negligence cases are able to be resolved by settlement or mediation before there is any need to go to a hearing, with the insurers offering a lump sum, in exchange for an agreement not to be sued. Get help from a medical negligence lawyer Suing for medical negligence is not straightforward. To be successful, you must be able to prove that the medical provider's mistake was negligent, that they failed in their duty of care, and that the mistake or its consequences caused the injury. Healthcare professionals or organisations will often argue that the injury resulted from an underlying health condition, rather than from any shortcoming on their part. They may insist that the decisions they took about a diagnosis or treatment were consistent with skilled professional practices or were following what was widely accepted as reasonable at the time. They may argue that the injury was caused by a ‘recognised side effect” of the treatment. A lawyer who is experienced in medical negligence cases can speak with you about your situation, fully consider the evidence from a legal standpoint, and advise whether the medical mismanagement or failure to adhere to their duty of care would be considered negligent by the Court. It is imperative you obtain professional legal advice before making a decision to sue a medical provider or organisation, as unrealistic expectations could lead to the failure of your case, leaving you liable to pay the legal costs of the healthcare provider you sued. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/february/claiming-med-neg-nsw/ Mon, 27 February 2023 00:00:00 If you are told that you are under investigation in your workplace, you need to know your rights when facing a workplace investigation. An employer has a duty to investigate alleged misconduct and a duty to support you if your workplace conduct is under investigation. Are workplace investigations serious? If it is alleged that you have engaged in workplace misconduct, a workplace investigation will likely ensue, and the consequences can be serious. Misconduct that often leads to a workplace investigation could involve allegations of: theft; fraud; bullying; discrimination; breach of workplace policy of safety procedures; or any matter deemed serious enough to warrant disciplinary action. Employers have broad powers to take ‘reasonable management action’ when conducting workplace investigations. Reasonable management action is largely undefined but provides discretion as to what the employer deems to be ‘reasonable’. This means there is no set criteria that the employer has to follow when conducting a workplace investigation, therefore making it difficult to determine whether the employer has acted unreasonably. You can read more about this in our blog, “Am I being bullied or is it reasonable management action?” Procedural fairness must be afforded during a workplace investigation The key rule of procedural fairness is that if you are subject to a workplace investigation, you must be given a fair and reasonable opportunity to respond to the allegations before any final decision is made. This includes any new allegations that may arise in the course of an investigation. In practice, this is difficult to clarify exactly, but can include: not framing the allegations to suggest a pre-determination of the issues; providing adequate documentation or notice of allegations to the worker; consistent treatment with the way other employees have been treated for similar conduct; not raising other allegations about unrelated past or trivial conduct; avoiding a conflict of interest by not having a key witness involved in the conduct of the investigation; postponing a meeting if required so that a support person can attend ; ensuring that the investigation is fully concluded before a decision is made. Do I have the right to see a complaint made against me at work? Complaints may be made by another employee, including managers, or the employer themselves. An important aspect of procedural fairness is that you are provided with the details of the particular allegations (or complaints) against you. To not receive clear and precise allegations would make it difficult, if not impossible, for you to defend yourself. Importantly, it is not uncommon for employees to be notified that they are being stood down (or suspended) pending investigation without receiving a copy of the specific allegations. This is not unreasonable as long as you receive the allegations before a decision is made and you are provided with adequate time to respond. If the allegations are based on CCTV footage, you are permitted to view the footage so that you can respond to the allegations. Can my employment be terminated without a workplace investigation? In cases where the employee has admitted to serious misconduct such as, for example, theft, fraud or assault, the employer will likely summarily dismiss (immediately terminate) the employee without the need for a workplace investigation. If, however, you were dismissed immediately or without a thorough workplace investigation and you feel that dismissal was unfair, you may be able to lodge an unfair dismissal claim . You should seek advice from your union or an employment lawyer. Do I have to answer questions in a workplace investigation? Whilst you do not have to answer the investigator’s questions, it is your chance to tell your side of the story, and if the investigator asks you a question, it is because they believe the answer might be important to the investigation. If you’re unsure if you should answer any questions, you should seek advice from your union or an employment lawyer. Can I have a support person, union rep or lawyer at my workplace investigation? You can and should have a support person present during a workplace investigation interview. When determining cases of unfair dismissal, one of the factors the Fair Work Commission considers is whether the employee was unreasonably denied the right to have a support person present during interviews. Standard of proof required in workplace investigations Findings in a workplace investigation are made on the ‘balance of probabilities’, that is the civil standard of proof. A fact is proven, on the balance of probabilities, if its existence is more probable than not or if it is established by a preponderance of probability. Get help from an employment lawyer If you find yourself the subject of a workplace investigation, you should either contact your union or one of our employment lawyers to confidentially discuss the matter to ensure your workplace rights are protected throughout the process. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/february/workplace-investigations/ Mon, 20 February 2023 00:00:00 In a significant employment law win, Hall Payne has secured over $130,000 in compensation for an engineer. In the case of Daigle v SCT Operations [2022] NSWDC 364, the employer made the worker redundant after failing to pay the final instalment of his 2019 bonus. The Court determined this to be a breach of his employment contract and awarded substantial damages for reasonable notice. Background In June 2004, the worker started employment with SCT, a geotechnical consultancy and instrumentation company, as an engineering geologist. In 2005, the worker was promoted to senior engineering geologist and senior strata control engineer. In 2006, the worker started participating in SCT’s Income Allocation Scheme. Under this scheme, he would receive a bonus once he had met his costs bar (ie. the costs associated with his employment including his base salary ( ‘Performance Bonus’ )). The Performance Bonus was calculated according to how many points the worker had accrued. If the worker met his costs bar, the Performance Bonus was paid out in four instalments the following financial year. In 2019, the worker exceeded his costs bar for the 2018-2019 financial year and was entitled to a substantial Performance Bonus. In December 2018, the worker started to become unwell and, in February 2020, was diagnosed with a chronic illness. Throughout the 2019-2020 financial year, the worker had to take considerable sick leave due to his illness and treatment. As a result, he did not meet his costs bar for the 2019-2020 financial year. In June 2020, SCT did not pay the worker the fourth instalment of his 2018-2019 Performance Bonus ( ’Fourth Bonus Instalment’ ). When the worker queried SCT’s failure to pay the Fourth Bonus Instalment, SCT told him that the Performance Bonus was discretionary and would not be paid because he did not meet his costs bar for the 2019-2020 financial year. SCT said that they would use the Fourth Bonus Instalment to meet the worker’s shortfall for the 2019-2020 financial year. The worker engaged Hall Payne Lawyers to seek payment of the unpaid bonus. Proceedings lodged in the Local Court When SCT continued to argue that the Performance Bonus was discretionary, Hall Payne lodged proceedings in the Local Court seeking payment of the Fourth Bonus Instalment. Employer makes worker redundant Shortly after Court proceedings were lodged, SCT made the worker redundant. The worker was paid 12 weeks’ redundancy pay and 5 weeks’ notice in accordance with s.117 of the Fair Work Act 2009 (Cth) ( ’FW Act’ ). After some consideration, the worker decided not to pursue a general protections claim and, on our advice, amended his statement of claim to include a claim for 99 weeks’ reasonable notice (24 months minus the 5 weeks’ notice already paid). This notice claim was, in our view, available given the absence of a notice provision in the employment contract. The worker also made an application to transfer the proceedings to the District Court of NSW as the worker’s claim now exceeded $100,000 (the jurisdictional limit of the Local Court). Matter heard in the District Court of NSW In August 2022, Hall Payne represented the worker in the hearing before the District Court. The worker alleged that SCT had breached the following terms of his employment contract: the Performance Bonus term, which was partly written and partly oral; and the implied term of reasonable notice. Tough case SCT vigorously defended the claim. This included opposing the worker’s application to transfer the proceedings to the District Court even though the amended claim exceeded the jurisdictional limit of the Local Court. They also filed a cross-claim for unpaid vehicle expenses. With respect to our client’s claims, SCT argued that: the Performance Bonus was discretionary, and the worker had no contractual entitlement to the Fourth Bonus Instalment; and the worker was not entitled to reasonable notice because s.117 of the FW Act displaced any entitlement to reasonable notice at common law. The question of whether our client was entitled to reasonable notice was the subject of considerable argument as there is no superior Court authority on the issue. SCT sought to rely on a line of South Australian case law, which found that s.117 of the FW Act had displaced any implied term of reasonable notice at common law. Our client was determined, however, to right the injustice he had suffered. The District Court’s decision – a win for the worker The Court split the case into three decisions: one to determine jurisdiction ; one to determine the substantive claims ; and one to determine costs . On 19 August 2022, the Court handed down its decision on the substantive claims. Our client won his claim to reasonable notice and the Fourth Bonus Instalment! Performance bonus The Court held that SCT’s unilateral alteration of the Performance Bonus term amounted to a breach of employment contract. The Court found that the worker had already ‘earnt’ the Fourth Bonus Instalment in accordance with the Performance Bonus term, and by withholding the Fourth Bonus Instalment, SCT sought to vary the Performance Bonus Term to enable it to withhold the bonus in the event the worker didn’t meet the costs bar in the following financial year. A variation to the employment contract was not available as it will only be permitted with the worker’s agreement. Reasonable notice The Court accepted the worker’s argument that s.117 of the FW Act provides the minimum period of notice and does not displace the common law term of reasonable notice, which may be implied by law when there is no express notice term in the employment contract. The Court concluded that section 117 of the FW Act is intended to protect employees rather than provide employers with a ‘fail safe’ should their contracts not set out express notice periods. The Court considered the worker’s: long period of service; age; specialised qualifications; skillset and experience; exemplary work history; failure to obtain any alternative employment since termination; and the availability of comparable senior engineering geologist and senior strata control engineer jobs in the Sydney region, to determine that the period of reasonable notice was 8 months’ pay minus the 5 weeks’ notice already paid and any income earnt since termination. The Court rejected SCT’s argument that the worker’s 12 weeks’ redundancy pay should also be deducted from the award of reasonable notice. Conclusion The Court found that the worker was entitled to damages as follows: Fourth Bonus Instalment in the sum of $94,452.00; Payment in lieu of reasonable notice in the sum of $63,782.50; Minus the amount the worker had spent in excess of the permitted car allowance, in the sum of $31,408.00; Balance: $132,555.58 (including interest). The decision of the District Court serves as a reminder to employers that the terms of any bonus scheme as part of your employment contract may be contractual and enforceable at law. Further, employers cannot rely on the FW Act to fill gaps in an employment contract, such as the absence of a termination notice clause. If you have any concerns regarding employer adherence to the terms of your employment contract or any other issues related to your working conditions, please contact a member of our award-winning employment law team. Contacting a Hall Payne employment lawyer You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/february/breach-employment-contract-win/ Mon, 13 February 2023 00:00:00 Millions of Australian employees will become entitled to 10 days paid family and domestic violence leave in 2023. On 27 October 2022, the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 (Cth) was passed by Federal Parliament. The new paid family and domestic violence leave will come into effect on 1 February 2023 for employers with more than 15 employees and on 1 August 2023 for employers with less than 15 employees. These changes are a substantial improvement to workplace rights and entitlements for employees exposed to coercive control and/or harm through family and domestic violence. Prior to the changes taking effect, the National Employment Standards provided employees with the entitlement to 5 days unpaid family and domestic violence leave, which was introduced to the Fair Work Act 2009 (Cth) (the FW Act ) on 12 December 2018. What family and domestic violence leave changes will be made to the Fair Work Act? The FW Act will include the following changes: Increasing the family and domestic violence leave entitlement from 5 unpaid days to 10 paid days in a 12-month period for all employees covered by the FW Act; Expanding the types of employees entitled to paid family and domestic violence leave to include casual employees; Expanding the definition of family and domestic violence to include conduct of a current or former intimate partner of an employee or a member of an employee’s household; Extending the entitlement to paid family and domestic violence leave to include non-national system employees when the International Labour Organization Convention on Violence Harassment (No. 190) comes into force in Australia; and Ensuring that any information about the use of family and domestic violence leave is not included on an employee’s pay slip to reduce the risk to an employee’s safety. As noted, these changes will come into effect on: 1 February 2023 for employers with more than 15 employees; and 1 August 2023 for employers with less than 15 employees. Employees will still be able to access the current entitlement of 5 days unpaid leave until the relevant date of entitlement to paid family and domestic violence leave becomes available. How is family and domestic violence defined in the Fair Work Act? Under the new provisions of the FW Act, family and domestic violence is violent and threatening or other abusive behaviour by a close relative, a member of an employee’s household, or a current or former intimate partner of an employee that: seeks to coerce or control the employee; and causes the employee harm or to be fearful. A close relative of the employee is a person who: is a member of the employee’s immediate family; or is related to the employee according to Aboriginal or Torres Strait Islander kinship rules. Who is entitled to paid family and domestic violence leave? All employees, including full-time, part-time and casual employees, will be entitled to access the full 10 days paid family and domestic violence leave upfront from: the relevant date that the entitlement becomes available for existing employees; or their first day of work for employees that start on or after the relevant date the paid leave entitlement becomes available. When can family and domestic violence leave be taken? An employee will be entitled to take paid family and domestic violence leave if: they are experiencing family and domestic violence; they need to do something to deal with the impact of the family and domestic violence. For example, making arrangements for the safety of themselves or a close relative (including relocation), attending court hearings, accessing police services, attending counselling and attending appointments with medical, financial or legal professionals; and it is impractical for them to do that thing outside their work hours. What rate is family and domestic violence leave to be paid? Employees (other than casual employees) will be entitled to be paid family and domestic violence leave at their full rate of pay for the hours they would have worked had the employee not taken the leave. Casual employees will be entitled to be paid family and domestic violence leave at their full rate of pay for the hours they were rostered to work. Does family and domestic violence leave accumulate? Paid family and domestic violence leave will not accumulate from year to year if it is not used. However, the full entitlement of 10 days will be renewed on the employee’s anniversary of when they started work. Can family and domestic violence leave be accessed while on other forms of leave? An employee is entitled to access paid family and domestic violence leave while they are on annual leave or personal/carer’s leave. In such circumstances, the leave will be taken as family and domestic violence leave rather than annual leave or personal/carer’s leave. Is notice and evidence required for family and domestic violence leave? An employee must notify their employer that they are taking family and domestic leave as soon as practicable, which may be a time after the leave has started. When notifying their employer that they are taking family and domestic violence leave, an employee is required to advise the employer of the period, or expected period, of the leave. An employer may ask an employee to provide evidence that would satisfy a reasonable person to demonstrate that the employee: is experiencing family and domestic violence; needs to do something to deal with the impact of the family and domestic violence; and it is impractical to do that thing outside their work hours. If an employer requires evidence to be provided, then the employee must comply to be able to access paid family and domestic violence leave. Examples of the type of evidence that can be provided may include: documents issued by police, a court or family violence support service; an appointment confirmation letter from medical, financial or legal professionals; or a statutory declaration. Employers must take steps to ensure that information concerning any notice or evidence given by an employee in relation to a request for family and domestic violence leave is treated confidentially, as far as it is reasonably practicable to do so. An employer is not permitted to use this information for any other purpose other than to satisfy itself in relation to the employee’s entitlement to family and domestic violence leave, including using the information to take adverse action against an employee . An employer, however, may disclose the information provided by the employee if the disclosure is: required by Australian law; or necessary to protect the life, health or safety of the employee or another person. What if the employer does not comply with the family and domestic violence leave provisions? If an employer does not comply with the FW Act provisions, then they may be contravening the FW Act and be liable for the imposition of significant monetary penalties. Any persons involved in the contravention, such as an HR employee or manager, may also be liable for the breach and the imposition of monetary penalties. If the employee is subject to adverse action, such as termination , loss of shifts, lost income, the employee may also have a remedy to seek penalties and compensation for a breach of s.340 of the FW Act as family and domestic violence leave is a workplace right.  Get help from an employment lawyer If you’re experiencing any issues with your employment, including issues related to family and domestic violence leave requests, you should contact your Union or one of our award-winning employment lawyers for advice and assistance. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/february/paid-domestic-violence-leave/ Mon, 06 February 2023 00:00:00 A Full Bench of the Fair Work Commission has upheld the actions of a company which directed its employees to relocate interstate or have their employment terminated: Bourke & Clifford V OS MCAP [2022] FWCFB 178 . Background facts OS MCAP is a subsidiary of BHP and provides services at BHP-owned mines around Australia. The employment contracts of certain OS MCAP employees specify that they can be required to work at multiple sites around Australia. In 2021, OS MCAP notified its employees that their services at the Mount Arthur Coal Mine in NSW would be discontinued. However, employees were advised that their employment with OS MCAP would continue at another worksite. Employees were invited to express their preference of worksite, but available locations were generally in Queensland and South Australia. Employees were also told that if they did not wish to relocate, they could resign. A group of 17 employees refused to be relocated. After unproductive discussions with OS MCAP, these employees were given a deadline to communicate their intention to continue or discontinue their employment. The employees did not respond to this request and their employment was terminated. First instance decision The employees each made unfair dismissal applications in the Fair Work Commission. Each was represented by the Mining and Energy Union. Hearing the 17 matters concurrently, DP Saunders determined that, by refusing to relocate in accordance with their employment contracts, the 17 employees had failed to comply with a lawful and reasonable direction from their employer. Moreover, his Honour found that these employees had abandoned their employment and repudiated their contracts. This meant that they had not been dismissed by OS MCAP and nor had they been forced to resign . As a result, there was no remedy available to them under the Fair Work Act 2009 (‘FW Act’). The employees appealed this decision. Appeal decision On appeal, the Full Bench of the Fair Work Commission agreed with the decision of DP Saunders. The employees argued, unsuccessfully, that their work was restricted to the Mount Arthur site by an implied contractual term. The Full Bench rejected this proposition.  The Full Bench affirmed that OS MCAP’s offer of redeployment was a direction under the employment contract. It did not matter that OS MCAP had framed this direction as a choice between redeployment and termination. The 17 employees had demonstrated their intention not to comply with their contractual duties by: disputing the accuracy of OS MCAP’s claims about whether redundancy payments were due; expressing their opposition to continue their roles at another worksite; and failing to nominate a redeployment location and failing to notify OS MCAP of their intention to continue or discontinue work when requested. Each employee’s conduct, therefore, amounted to an abandonment of employment and a renunciation of the employment contract, bringing the employment relationship to an end. In the Full Bench’s view, the significant distance of the relocation, which would have required employees to move from NSW to Queensland or South Australia, was not a relevant consideration. Were the workers entitled to redundancy pay? Employees have redundancy entitlements under the National Employment Standards. Employees are entitled to redundancy pay where their employment is terminated at the employer’s initiative because: the employer no longer requires the job being done by the employee, to be done by anyone; or the employer has become insolvent or bankrupt (s. 119(1) FW Act). There are also often redundancy entitlements under industrial awards. However, it is not always clear-cut whether an employee has been made redundant. In this matter, the work of the 17 employees was no longer required by OS MCAP at the Mt Arthur Mine. However, because OS MCAP was willing to engage these employees at other worksites, and relocation was authorised under their contracts, the employees were not dismissed and there were no redundancies. Another way to think about this is that the employer still required the ‘job to be done’ because part of the job was relocating when required. As DP Saunders explained [63]: A relocation of the work to be done in the course of employment may then justify a determination that the employer no longer wishes the job to be done if the relocation is unilaterally determined and is of such a degree that it is effectively a unilateral repudiation of the contract of employment. A relocation will not be in breach of the contract of employment if transferability within employment is an express or implied term of the original contract of employment… Significance of this decision for workers This outcome suggests that some multi-site employers can lessen their redundancy obligations by including relocation terms in employment contracts. This would theoretically allow the closure of an entire worksite without enlivening redundancy entitlements, as long as the employer has other active worksites and is willing to redeploy affected workers. While in some cases, employees might prefer relocation to termination, in others, it will create unacceptable burdens. In such cases, some employees will have little choice but to resign and will face all the consequences of redundancy without any of the benefits. Notably, the Full Bench concluded that the burden (of relocation) on the employee is not a relevant consideration where relocation is authorised under the contract. However, it may well be a relevant consideration if the contract is silent on the issue or if it arises under an enterprise agreement. For employees, this decision highlights the importance of understanding what can be required of you under your employment contract, as it may affect your entitlements when employment circumstances change. Get help from an employment lawyer If you’re experiencing any issues with your employment, including issues related to your employment contract and changes to your employment terms and conditions, you should contact your Union or one of our award-winning employment lawyers for advice and assistance. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2023/january/workers-refuse-relocation/ Mon, 09 January 2023 00:00:00 If you have been diagnosed with a chronic illness or you suffer a disability, likely at the forefront of your thoughts is, ‘what detail do I have to tell my employer about my illness or disability?’ The future may hold periods of absence from work in order to see doctors and to get treatment. Is this going to affect my employment? It is important to know your employment law rights . Do I ‘have’ to tell my employer about my illness or disability? You do not have to disclose to your employer about a chronic illness or disability unless it impacts your ability to perform the work for which you have been employed or it affects your or anyone else’s health and safety at work. Whether you tell your employer is a personal decision and you are not legally bound to tell them. Importantly, if you do tell your employer, they are not permitted to share the information with anyone else without your consent. Are there benefits to telling my employer about an illness or disability? Telling your employer about a chronic illness or disability is a personal decision. However, there may be circumstances where it is beneficial to keep your employer informed about your condition. Having a chronic illness may require you to attend frequent medical appointments. If this is the case, you may want to advise your employer so as to not have your attendance record questioned. Likewise, you may need to take medication at work and your employer (and/or co-workers) may question this and how it may affect your work. Your employer also has a positive obligation to make reasonable adjustments to the work for you, to enable you to perform the inherent requirements of the position. A failure to do so may constitute unlawful discrimination. For an employer to be able to make “reasonable adjustments’,’ you would need to provide to your employer a letter from your doctor setting out the adjustments required for you to be able to perform the work. You should seek legal advice before taking this step. Call: 1800 659 114 If your chronic illness requires special treatment like extra breaks, a different work schedule and so on, you will obviously need to talk to your employer. Remember, however, that you only need to give your employer information about how your condition may impact your work performance. Essentially, there is no need to tell your employer if: you can still do your job in the same way as if you had no illness or disability; you are worried about discrimination or harassment at work ; you do not feel your employer will support you; you already have enough support outside the workplace and do not feel you need any more at work. Protection from dismissal for taking sick leave In order to be protected from unfair dismissal because of an absence due to illness or injury, you will need to provide evidence of the illness or injury if you are: away from work for less than 3 consecutive months or less than 3 months in total over the last 12 months; or still using accrued paid sick leave. The evidence you will need to provide of your illness must be reasonable, such as a medical certificate. However, this does not need to specify the details of your illness. It needs to state that you are unwell/sick and unable to attend work for a specified period. You are no longer protected from unfair dismissal because of the absence (even if you provide evidence) if: your absence is more than 3 consecutive months or more than 3 months in total over the last 12 months; and you have not been paid leave (however described) due to the medical condition or disability for the duration of the absence. Notably, however, your employer cannot ‘automatically’ sack you if you are away from work in excess of 3 months. There may be other options like general protections and state and federal discrimination laws that you can use to protect your employment rights. Again, you are legally required to tell you employer if your condition affects your ability to do your job, or if it will cause health and safety issues for others. Get help from an employment lawyer If you have been diagnosed with a chronic illness or you have a disability and are uncertain whether to advise your employer, either contact your Union or one of our award-winning employment lawyers to confidentially discuss the matter. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/december/disclose-disability-illness/ Mon, 26 December 2022 00:00:00 In NSW, the worker's compensation scheme is a ‘no-fault’ system. This means an insurer has limited defences at its disposal to decline a worker’s compensation claim. In respect of psychological injuries , the insurer has two main defences. As with all worker’s compensation claims, the first defence is that the injury did not arise out of the course of the worker’s employment and that the worker’s employment was not a substantial contributing factor. The second defence, known as the section 11A defence, is that the worker’s injury was wholly and predominantly caused by the reasonable actions of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers. In this blog, we explore the second defence of reasonable actions of the employer. What is reasonable action in NSW worker’s compensation claims for psychological injury? When considering what is reasonable action, the decision is usually left to a Member of the Personal Injury Commission (PIC) to decide after looking at all the evidence. A medical practitioner cannot make an assessment that includes an opinion on whether the actions of the employer were reasonable or not. A medical practitioner’s opinion is limited to the diagnosis of the injury, capacity to work and whether the injury was a substantial contributing factor to the worker’s injury. It is important to note the test for reasonableness is what’s known as an objective test. This means that the PIC needs to determine whether a reasonable person in the employer’s position would consider the actions of the employer to be reasonable. It is not enough that an employer believed that the action that caused the psychological injury was reasonable. It is also not enough that the employer believed that it was compelled to act as it did in the interests of transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers. There is no one definitive situation that would lead to the PIC determining whether actions of the employer were reasonable or unreasonable. The basic principle in this respect is that the defence is assessed on the facts, which can differ from case to case. When considering reasonable action, the PIC needs to have regard not only to the end result but to the manner in which it was affected. That is, they need to take into account the whole process of the employer’s action that caused the psychological injury. Examples of reasonable action Of the actions listed in section 11A, performance appraisal and discipline are commonly used defences by insurers. Whilst facts differ from case to case, a common example is when a worker is placed on performance improvement plans or is disciplined. When the PIC makes decisions on this issue, they look at the whole process of the performance improvement plans or discipline process and whether this was reasonable. The PIC will often check if employer policies and procedures were followed in these situations to determine whether the employer’s actions were in fact reasonable. The case of Irwin v Director General of School Education (Irwin) is a leading authority on the reasonableness of an employer’s action. The court in the matter of Savage v ECO Septic Pty Ltd [2021] NSWPIC 515 quoted the Irwin decision which stated that: “The test of reasonableness is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.” Conclusion It is important to seek legal advice if your claim for a psychological injury is declined on the basis that the actions of the employer were reasonable. As indicated, there are limited defences an insurer can rely on when making a decision to reject or decline a worker’s compensation claim. If the defence of reasonable action is relied upon by the insurer, we can help get the review process started and get the best possible outcome prior to, or at the PIC. Get help from a worker's compensation lawyer Hall Payne Lawyers are IRO Lawyers and can apply for ILARS funding. This means that there are no legal fees payable for any advice and assistance we provide in respect of your worker’s compensation claim. We can assist with the preparation of a statement and documents in support of your claim, including advice and responses to evidence served by the insurer on behalf of the employer such as investigation reports and witness statements. We can also assist with investigating a potential claim for lump sum compensation . We can then represent you in a work injury damages claim (common law claim) for past and future economic loss arising out of the negligence of the employer.   Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/december/reasonable-action-workers-comp-nsw/ Mon, 19 December 2022 00:00:00 Casual employment is a common method of engaging employees as it provides flexibility to both employers and employees. Many employees prefer casual employment as they are paid a 25% loading in lieu of entitlements such as annual leave and personal leave. However, what happens if you have been a long-term casual employee and you want to be made permanent? The Fair Work Act 2009 provides a right for an eligible employee to seek to convert from casual employment to permanent employment. In this blog, we look at when an employer is required to make an offer of casual conversion and when an employee has a right to request conversion from casual employment to permanent employment. How can I convert from casual employment to permanent employment? There are two ways an employee may be able to convert from casual to permanent employment: An employer can make an offer to an eligible casual employee to be converted to permanent employment; or An eligible casual employee may make a request to their employer to be converted to permanent employment. 1.  Employer requirements to convert casual employees to permanent An employer (excluding a small business employer), must make an offer of casual conversion to a casual employee within 21 days after the employee’s 12-month anniversary if: the employee has been employed by the employer for a period of 12 months; and during at least the last 6 months of their employment, the employee has worked a regular pattern of hours on an ongoing basis. For example, if an employee has worked shifts of 8 hours each day, on every Monday and Tuesday for the last 9 months of their employment, then it will be clear they have worked a regular pattern of hours for the requisite 6 months; and the employee could continue to work as a full-time or part-time employee without significant adjustment. However, an employer is not obligated to make an offer of casual conversion if: there are reasonable grounds not to make the offer, which may include that: the employee’s position will cease to exist within 12 months of the employer deciding not to make an offer. For example, the position will be made redundant; the employee’s hours of work will be significantly reduced; there will be a significant change in the days and/or times the employee’s hours of work are required to be performed; and making the offer would not comply with a recruitment or selection process required by or under legislation; and the reasonable grounds are based on facts that are known, or reasonably foreseeable, at the time the employer decides to not make the offer. Does the offer of casual conversion have to be in writing or can it be verbal? Any offer of casual conversion from an employer must be in writing and given to the employee within 21 days after the employee’s 12-month anniversary. Does my employer have to offer me full-time or part-time employment? If a casual employee worked hours that are equivalent to full-time hours in the last 6 months of their employment, then the offer of casual conversion from an employer needs to be for full-time employment. If, however, a casual employee worked less than the equivalent of full-time hours, then the offer of conversion from the employer needs to be for part-time employment that is consistent with the pattern of hours the employee worked in their most recent 6 months of employment. Can I refuse an offer of casual conversion from my employer? A casual employee does not have to accept an employer’s offer of casual conversion. However, if an employee rejects an offer of casual conversion, then they cannot make a request to be converted to permanent employment for at least 6 months (after rejecting that offer) and the employer is not required to make the employee another offer. If my employer is a small business, do they have to offer casual conversion? A small business employer is an employer that employs less than 15 employees. A small business employer does not have to make an offer to convert their casual employees to permanent employment. However, the employee may make a request to a small business employer to be converted to permanent employment. 2.  Casual employee’s right to request to be made permanent A casual employee may make a request to their employer to be converted from casual to permanent employment if: the employee has been employed by the employer for a period of 12 months; during at least the last 6 months of that period, the employee has worked a regular pattern of hours on an ongoing basis; the employee could continue to work as a full-time or part-time employee, without significant adjustment; and at any time during their last 6 months of employment: the employee has not refused an offer of conversion from the employer; the employer has not given written notice to the employee that they had decided to not make an offer of conversion; and the employer has not refused an employee’s request of conversion. A casual employee who is not employed by a small business employer can make a request for casual conversion 21 days after their 12-month anniversary. However, a casual employee employed by a small business employer can make a request for casual conversion at any time after their 12-month anniversary. How do I make a request to my employer for casual conversion? A request for casual conversion must: be in writing; be a request for the employee to convert: to full-time employment, if the employee has worked the equivalent of full-time hours in the last 6 months of their employment; or to part-time employment, if the employee has worked less than the equivalent of full-time hours in the last 6 months of their employment; and be given to the employer. Time limit for employer to respond to a request for casual conversion? An employer is required to respond to a casual employee’s request for casual conversion within 21 days after they are given the written request by the employee. An employer’s response must be in writing and state whether they grant or refuse the request. What happens if my employer grants my request for casual conversion? If an employer decides to grant a casual employee’s request for casual conversion, then within 21 days after receiving the request, they must: discuss with the employee: whether the employee is converting to full-time or part-time employment; the employee’s hours of work after the conversion takes effect; the day the employee’s conversion to permanent employment takes effect, which must be the first day of the employee’s first full pay period that starts after the day the notice is given, unless the employee and employer agree to another day; and after the discussion, provide the employee written notice of the above-mentioned matters discussed at the meeting. When can my employer refuse my request for casual conversion? An employer may refuse a casual employee’s request to be converted to permanent employment if: the employer has consulted with the employee; and there are reasonable grounds to refuse the request, which may include the following: it would require a significant adjustment to the employee’s hours of work in order for the employee to be employed as a full-time or part-time employee; the employee’s position will cease to exist within 12 months of the employee making the request for casual conversion; the employee’s hours of work will be significantly reduced within 12 months after the employee made the request; there will be a significant change in the days and/or times the employee’s hours of work are required to be performed; and granting the request would not comply with a recruitment or selection process required by or under legislation. If an employer decides to refuse an employee’s request for casual conversion, then within 21 days, they must notify the employee, in writing, of the reasons for the refusal. Can my employer reduce my hours of work or terminate my employment if I make a request for casual conversion? An employer is not permitted to reduce or vary an employee’s hours of work, or terminate an employee’s employment , to avoid any right or obligation under the casual conversion provisions in the Fair Work Act . Can I challenge my employer’s decision regarding a casual conversion request? A casual employee can dispute an employer’s decision to refuse their casual conversion request or their refusal to make a casual conversion offer.  In the first instance, the employee and employer must attempt to resolve the dispute at the workplace level through discussions between the parties. If the discussions at the workplace level do not resolve the dispute, the employee or employer may refer the dispute to the Fair Work Commission for mediation, conciliation and/or consent arbitration (this means the FWC can only make a binding decision if the employer agrees to that process). However, if a casual employee: is covered by an enterprise agreement or modern award ; or has an employment contract or any other written agreement between the employee and employer which contains a dispute settlement procedure, then the employee must follow the dispute settlement procedure contained in the relevant industrial instrument, contract or written agreement. Can I appoint a representative to assist me with a casual conversion dispute? A casual employee or employer may appoint a person or industrial association, such as a union, to provide them with support or representation for the purposes of resolving their dispute or to represent them in the Fair Work Commission. Get help from an employment lawyer If you’re experiencing any issues with your employment, including issues related to a casual conversion request, you should contact your Union or one of our award-winning employment lawyers for advice and assistance. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/december/casual-conversion/ Mon, 12 December 2022 00:00:00 As industries become more competitive and employees increasingly switch between employers and ‘job hop’, restraint of trade and non-solicitation clauses are progressively further incorporated into employment contracts. This blog touches briefly on restraint of trade clauses and takes a closer look at non-solicitation clauses. In particular, we look at two decisions where the Court determined the employment contract had been breached regarding departing employees’ use of social media. Restraint of trade clauses in employment contracts Restraint of trade clauses are typically drafted to, for example: Restrain an employee, in a relevant area and for a relevant time from the date of termination of their employment in being employed or involved in any business or services similar to those the employee provided to their previous employer. These clauses can often be verbose and longwinded which, in turn, often lead them to be non-effective by being too broad or failing to even protect the very thing they were designed to do. For information about restraint of trade clauses and whether a restraint of trade clause could be enforceable, see our blog “Is a Restraint of Trade clause in my employment contract fully enforceable?” Obtaining legal advice from an employment lawyer, about restraint of trade clauses can be important for both employees and employers. As referenced in the above-mentioned blog, at a starting point restraint of trade clauses are assumed unenforceable as a matter of public policy. This was determined in the High Court case of Buckley v Tutty (1971) 125 CLR 353 at 380 on the basis that people should be entitled to use their skills and trade. Get legal advice from an award-winning employment lawyer:  1800 659 114 These clauses are also continually being tested in the Courts, with the recent decision of United Petroleum Pty Ltd v Barrie [2022] FCA 818 finding that a restraint of trade clause was not enforceable against an exiting employee. Non-solicitation clauses in employment contracts Non-solicitation clauses are commonly included in contracts and put very simply, are designed to protect an employer’s clients and staff when an employee leaves the business, by preventing the exiting employee from soliciting those individual customers after their departure. They are often drafted to, for example: Prevent solicitation, persuasion, inducement or acceptance of any customer or client of the Employer with whom the previous Employee had work-related dealings during or preceding the termination of the Employees employment to cease doing business with their previous employer or reduce the amount of business which the person would normally do with the Business. Using social media to announce your new job could breach your employment contract We are often approached by employees who are about to, or have just commenced a new job and would like to update their job title on social media platforms, such as LinkedIn or Facebook. They are conscious, however, that they are still bound by post-employment covenants or restrictions stemming from their previous employment relationship, such as a restraint of trade and/or non-solicitation clause. In such circumstances, we are increasingly asked whether updating their job title could inadvertently cause a breach of a non-solicitation clause in their contract if a former client or even prospective client of their former employer contacts them. Consider this scenario You have left your old employer and updated your social media profiles, such as Facebook or LinkedIn, publishing that you have commenced at a new employer; and A former client of yours or the business sends you a direct message or contacts you and wants to engage your services. Will you be in breach of your non-solicitation clause in your former employment contract if you respond to the message? The common answer by the employee posting their new job status is: “N o, how can I be. They approached me. They gave the invitation. I only responded!” Wrong answer That response is unfortunately incorrect and does not properly comprehend non-solicitation clauses. Strictly speaking, the communication that follows in the above scenario could lead to a breach of any applicable non-solicitation clause relating to former clients. Court finds employment contract breached in Barrett and Ors v Ecco Personnel Pty Limited A similar scenario occurred in the case of Barrett and Ors v Ecco Personnel Pty Limited Matter No Ca 40586/96 [1998] NSWSC 545 when a client of Ecco Personnel, being Nestle, approached Mr Barrett after he had left Ecco Personnel in order to enquire about his services. Although it was the ex-client, Nestle that made the initial approach, the Court found that Mr Barrett was in breach of a non-solicitation clause in his Ecco Personnel employment contract. Why was that? The Court’s decision The Court held the following on appeal: “The task of the court is to interpret the words in the contract of employment in their context. “…`solicit' was a common English word, and in its simplified form meant `to ask'. Its other meanings included: `to call for' `to make request', `to petition', `to entreat', `to persuade'. “…I cannot see that to propose to do business ceases to be soliciting business simply because the recipient invited the proposal.” It seems to me that Young J was saying that the approach by Nestlé merely provided the window of opportunity for the first appellant to submit a proposal more attractive to Nestlé than its current contract with the respondent. That the approach was the catalyst or trigger for the solicitation by the appellant does not make the appellant any less the mover for the action happening. It is not appropriate to construe `solicit' in a mechanistic fashion. In most instances the first approach will be made by an ex-employee to the former customer, however common sense demands that this is the not the exclusive means by which solicitation may occur. That the approach by the client was the catalyst or trigger for the solicitation by the appellant any less the mover for the action happening. The Court of Appeal was clear that although Nestle’s invitation was the ‘ catalyst or trigger for the solicitation by the appellant (Mr Barrett) ’, that this did not ‘make the appellant (Mr Barrett) any less the mover for the action happening. ’ As a result, it was found that Mr Barrett had solicited the business of Nestle by submitting his proposal to them, despite not having made the initial contact. As such, it is pivotal that you obtain legal advice before having such conversations with a previous client or staff member of your previous employer in such circumstances. Get legal advice from an award-winning employment lawyer:  1800 659 114 Court finds employment contract breached in Planet Fitness Pty Ltd v Brooke Dunlop & Ors The case of  Planet Fitness Pty Ltd v Brooke Dunlop & Ors [2021] NSWSC 1425  involved a much more brazen communication style by an ex-employee to previous clients. Ms Brooke Dunlop, a personal trainer, had a non-solicitation clause in her employment contract preventing Ms Brooke from directly or indirectly soliciting, canvassing or securing the custom of any client. After leaving her employment with Planet Fitness, Ms Brooke contacted a number of her previous clients and advertised on her Facebook account, discounted membership rates for people she had previously trained. Some of her Facebook posts included: "I have negotiated an amazing deal exclusively for any of my PT [personal training] clients, PC members and Class participants. Please call Sean and the guys at GENESIS Warnersba [sic] NOW ... All you need to do is mention my name and show your current membership tag ..." Planet Fitness, her previous employer, filed interlocutory proceedings in order to enforce the restraint of trade and non-solicitation clause. The Court agreed that it was clear Ms Dunlop had solicited, canvased or enticed former clients. In analysing the clause in the employment contract, the Court held that: ‘… as a whole, the clause is a restraint against endeavouring to attract, or achieving the attraction of, custom of the former clients of the first defendant, after her contract with the plaintiff had been terminated. ’ There is a strong prima facie case that the first defendant has solicited or canvassed persons for whom she provided personal training services when she was contracted to the plaintiff. She did so by posting messages on her Facebook page in which, amongst other things, she advised her Facebook friends that, first, she was in negotiation, and later that she had negotiated arrangements, with Genesis (that is, the second and third defendants), whereby those persons would be able to train at Genesis clubs at a reduced rate for the remaining periods of their contracts with the plaintiff. The Court’s decision The Court made orders: prohibiting Ms Dunlop from posting further messages on social media; requiring removal of relevant Facebook posts; and preventing further attempts to solicit, canvass or secure the customs of persons who were clients of Planet Fitness in the relevant periods. The Court, however, found that Ms Dunlop was not restrained from providing services to former clients who ‘ of his or her own volition wished to continue to use the first defendant as his or her personal trainer’. The Court did not make any orders preventing Ms Dunlop from providing services to her former clients. The Court relevantly stated: I do not think that that is the proper construction of clause 3.5. I agree with the submission of counsel for the second and third defendants that the words "solicit, canvas or secure the custom of" have to be read as a whole phrase and that each word in it gives sense to what is restrained. I agree that, considered as a whole, the clause is a restraint against endeavouring to attract, or achieving the attraction of, custom of the former clients of the first defendant, after her contract with the plaintiff had been terminated. A clause which was intended simply to restrain the first defendant from providing services to former clients would need to be clearly so expressed . Different questions might then arise as to the enforceability of such a clause. I think the clause is one directed against soliciting and was not intended to deal, for example, with the case where a former client of his or her own volition wished to continue to use the first defendant as his or her personal trainer. Get help from an employment lawyer Often, restraint of trade and non-solicitation clauses are drafted without the necessary precision to accurately reflect the intention of the enforcer. The cases reviewed above, demonstrate the importance of: properly drafting a restraint and non-solicitation clause; and obtaining legal advice about its construction and effect; If you require advice or assistance related to any aspects of your employment contract, our award-winning employment law team can assist. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/december/announce-new-job-on-social-media/ Sun, 04 December 2022 00:00:00 The Department of Home Affairs (DoHA) introduced changes to the transitional pathway to permanent residence for some employer-sponsored visa holders from 1 July 2022. These extremely generous regulatory changes are earmarked to be repealed after two years, so those who can take advantage of the new rules should do so as soon as possible. The current repeal date is 30 June 2024. Australia’s strong demand for labour and the reduced number of visa holders onshore due to the pandemic and border lockdowns has resulted in these drastic measures being implemented. Despite the re-written Regulations not containing any end date, the Department of Home Affairs is publicizing the intention for the concessions to be available for a set period of 2 years. It will be interesting to see what happens with this stance closer to June 2024. Am I eligible to apply for permanent residence under these concessions? Anyone who: currently holds a temporary sponsored work visa with an occupation that traditionally has not provided a pathway through to permanent residence (short-term list); and who was also present onshore for at least 12 months between 1 February 2020 and 14 December 2021, may be eligible. If you meet this criterion, you should seek expert advice as to whether or not this new transitional pathway is a realistic option for you. Get help from our registered migration agent today: 1800 659 114 What criteria will I need to satisfy? The usual criteria relating to: minimum skills/qualifications; professional registration (if applicable); relevant work experience; English language; health; and character, still apply.   However, people working in an occupation that is on the “Short Term Skills Occupation List” (some 215 occupations), now have a window of opportunity to apply for permanent residence which was not available prior to 1 July 2022.   New age exemptions for Visa sub-class 457 There are also some new age exemptions available for people who held a subclass 457 visa on or after 18 April 2017 and who also remained onshore for the specified period (at least 12 months between 1 February 2020 and 14 December 2021). It is important to note that even if you only hold a bridging visa (having already applied for an employer-sponsored temporary visa), you could still be in a position to apply if you satisfy all other criteria. Were you stood down during COVID? Individuals impacted by stand-downs or reduced working hours due to COVID-19 have also been covered by exemptions to the full-time sponsored employment period generally required by the employer nomination criteria. This criterion included having worked for the sponsoring employer for at least three years in the four years immediately prior to being nominated to fill a permanent position. Great opportunity for some seeking an employer-sponsored permanent residence visa Good news all round for a number of people who previously had no long-term visa options or those original 457 visa holders that missed out on the previous employer-sponsored visa concessions that ended on 18 March 2022. It’s also good news for a lot of people who previously had limited options and who have quite often already spent extended periods of time living and working here, supporting our economy and their local communities. Get help from a registered migration agent Given the costs involved for a business to nominate someone for a sponsored work visa, it is essential that you get it right the first time.  Don’t fall into the trap of thinking that reading through the information published online will be enough to ensure everything runs smoothly. Speak to our Registered Migration Agent who will be able to assess your circumstances and confirm if you are able to satisfy both the nomination and visa application criteria in order to apply before any non-refundable payments are made.   It’s important to act fast if you wish to take advantage of the concessions addressed in this article. They are currently slated for repeal on 30 June 2024. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/november/pr-visa-concessions/ Sun, 20 November 2022 00:00:00 Updated October 2023 In late October 2022, the Federal Government introduced draft legislation that would strengthen a worker’s right to flexible work arrangements. On 6 June 2023, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2023 (Cth) came into effect. We first published this in November 2022 (when the changes were not yet legislated). We have now updated this article to reflect the new flexible working arrangements for Australian workers. In further reading, we explored a recent case that provides guidance on how the new laws will be interpreted by the Fair Work Commission. You can read “Case review - new flexible work arrangements” here . As workers have returned to the office and other workplaces in the year since the pandemic, many have wondered whether they have a legal right to work from home. More broadly, parents, carers and other workers often consider whether they have a similar right to flexible working arrangements. We deal with those issues in this article. There is no doubt that the COVID-19 pandemic changed business and personal attitudes towards remote work, working from home and flexible work arrangements more generally. During 2020 and 2021, millions of Australian workers worked remotely on a regular basis due to the pandemic. Section 65 of the Fair Work Act – employee requests to change working arrangements Prior to June 2023, section 65 of the Fair Work Act provides that an employee may request a change to their working arrangements if the employee is: a parent, or has responsibility for the care, of a child who is of school age or younger; the employee is a carer (as defined by the Carer Recognition Act 2010 ); the employee has a disability; the employee is 55 or over; the employee is experiencing violence from a member of the employee’s family; the employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family. The employee is only entitled to make the request if they have completed 12 months of continuous service before making the request or, for a casual employee: is a regular casual employee who has been employed on that basis for a sequence of periods of employment during a period of at least 12 months; and has a reasonable expectation of continuing employment. A refusal of the employee’s request for flexible work arrangements: no right to appeal At face value, section 65 of the Fair Work Act sounds promising for employees seeking flexible work arrangements. However, as drafted prior to June 2023, the provision goes on to provide that an employer may refuse the request if they have “ reasonable business grounds ” to do so. The section sets out a list of what “reasonable business grounds” include (but are not limited to). This includes that: the changes are too costly for the employer; the changes are too impractical; or the changes cause a significant loss in efficiency, productivity or decline in customer service. Employers were required to give a written response within 21 days of the employee’s request for flexible work arrangements stating whether or not it was granted. If it was not granted, the employer had to include details of the reasons for the refusal. Unfortunately, as things stood at that time, section 65 of the Fair Work Act did not provide any avenue for an employee to appeal a refused request. This inability proved to be a significant weakness in the right provided in the legislation.   New laws from June 2023: genuine efforts and the right to appeal a refusal On 6 June 2023, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2023 (Cth) came into effect. The Act introduced new sections 54A, 65B and 65C. Genuine efforts Under the new sections, an employer may only refuse a request for flexible work arrangements if it has: discussed the request with the employee; genuinely tried to reach an agreement with the employee about making changes; had regard to the consequences of the refusal for the employee; and the refusal is on reasonable business grounds. The employer does not need to agree to the arrangements if it has reasonable business grounds for refusing a request for the change, so long as it has satisfied these additional steps. The new sections provide that the employer must set out the particular business ground it relies on for refusing the request and explain how those grounds apply to the request. The employer must set out changes (other than the requested change) that it is agreeable to or state that there are no changes it is agreeable to. Right to appeal to the Fair Work Commission The new sections also provides the opportunity for an employee to refer (appeal) the matter to the Fair Work Commission if: the employer has not responded to the request within 21 days or has refused the request; and discussions at the workplace level to resolve the dispute have been unsuccessful. Once the matter is before the Commission, a conciliation will be held to attempt to resolve the matter. If not resolved, the matter can proceed to arbitration from which the Fair Work Commission may order that: if the employer has not given the employee a written response, the employer is assumed to have refused the request; if the request was refused, that the grounds on which it was refused were reasonable business grounds; if the request was refused, that the ground on which it was refused were not reasonable business grounds; the employer gives the employee a written response to the request; the employer gives the employee details, or further details of the reasonable business grounds relied on; any other order that the Fair Work Commission considers appropriate to ensure compliance by the employer of its obligations in relation to genuine efforts; and/or an order that the employer grant the request or make specified changes to the employee’s working arrangements. Employees’ right to flexible work arrangements will be strengthened Prior to June 2023, the right to flexible work for carers, disabled workers and employees subject to domestic violence is relatively weak. This was because section 65 of the Fair Work Act entitled an employer to refuse a request on “reasonable business grounds”. Further, there is no right for an employee to appeal the employer’s decision. The new laws change the operation of the civil remedy provisions. They make contraventions of sections 65 and 65A a civil remedy provision. This makes the provision consistent with the Court’s powers regarding breaches of other provisions in the NES.  The new laws strengthen an employee’s right to flexible work in three key ways. Firstly, they impose a greater obligation on employers to make genuine efforts to reach an agreement with the employee. Employers must discuss the request with the employee, genuinely try to reach an agreement and have regard to the consequences of a refusal on the employee. Secondly, employees have the option of appealing an employer’s refusal (or failure to respond) to a request, to the Fair Work Commission. The Fair Work Commission is empowered to make a range of orders when dealing with such an application. Finally, the new laws make it a civil remedy provision for an employer to contravene the requirements, giving an employee the right to sue in a Court and seek the imposition of a penalty. These changes fill gaps in the previous employment laws and strengthen the right of certain employees to flexible work arrangements. Employees who are carers, disabled or subject to domestic violence have had their rights strengthened.  Get help from an employment lawyer Getting good advice quickly when such issues arise at work is critical. Hall Payne are award-winning employment lawyers . If you’re experiencing any issues related to your employment, you should seek assistance from your Union or a lawyer experienced in workplace law. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/november/flexible-work-changes/ Mon, 14 November 2022 00:00:00 In early 2022, The Federal Government committed to implementing all 55 of the recommendations given by the Australian Human Rights Commission (the AHRC ) in the Respect@Work: National Inquiry into Sexual Harassment in the Workplace (2020) Report (the Report ). Further to that commitment, the Anti-Discrimination and Human Rights Legislations Amendment (Respect at Work Bill 2022) (Cth) ( Bill ) was introduced into Parliament on 27 September 2022 which seeks to implement 7 of the 55 recommendations from the Report. Findings of the Respect@Work Report The Report made 55 recommendations which focussed on preventing and addressing sexual harassment in the workplace. The Report recommended a number of legislative amendments to strengthen and clarify the legal and regulatory framework relating to sexual harassment and increase the focus on prevention. The Report concluded that the existing frameworks relating to workplace sexual harassment are complex, difficult to navigate, overly reactive (rather than focusing on prevention), and place a significant burden on individuals who experience sexual harassment, to make a complaint. Proposed Respect@Work Bill amendments The Bill proposes to include the following: A prohibition on conduct that subjects another person to a workplace environment that is hostile on the ground of sex. The introduction of a positive duty on all employers and PCBUs to take “reasonable and proportionate measures” to eliminate unlawful sex discrimination , including sexual harassment, as far as possible. Enabling the AHRC to monitor and assess compliance with the positive duty. Providing the AHRC with a broad inquiry function to inquire into systemic unlawful discrimination or suspected systemic unlawful discrimination. Enabling representative bodies to make representative applications in the federal courts, on behalf of people who have experienced unlawful discrimination. The introduction of a “cost neutrality” approach, providing a default position that each party would bear their own costs in an unlawful discrimination proceeding. Requiring Commonwealth public sector organisations to report to the Workplace Gender Equality Agency. We go through each of these proposals in more detail below. 1.  Subjecting a person to a hostile workplace environment on the ground of sex The Bill proposes to amend the Sex Discrimination Act 1984 (the SD Act ) to insert a prohibition on conduct that subjects another person to a workplace environment that is hostile on the grounds of sex. That is, an environment that exposes them to sexual harassment and/or sexual discrimination. The Bill sets out the meaning of subjecting a person to a hostile workplace environment, which includes the requirement that: ”… (c) a reasonable person, having regard to all the circumstances, would have anticipated the possibility of the conduct resulting in the workplace environment being offensive, intimidating or humiliating to a person of the sex of the second person by reason of: the sex of that person; or a characteristic that appertains generally to persons of the sex of the person; or a characteristic that is generally imputed to persons of the sex of the person.” The circumstances to be considered when determining whether the conduct is unlawful include: the seriousness of the conduct; whether the conduct was continuous or repetitive; the role, influence or authority of the person engaging in the conduct; and any other relevant circumstance. 2.  Positive duty to eliminate unlawful sex discrimination The Bill proposes to introduce a positive duty on all employers and PCBUs, to take ‘reasonable and proportionate’ measures to eliminate unlawful sex discrimination, including sexual harassment, as far as possible. It would also include specified forms of unlawful sex discrimination under the SD Act, including: sex discrimination; sexual and sex-based harassment; hostile work environments; and The proposed changes require that measures be taken to prevent this conduct being engaged in by duty holders, employees, workers and agents, and third parties. The Explanatory Memorandum suggests that this may involve: implementing policies and procedures; collecting and monitoring data; providing appropriate support to workers and employees; and delivering training and education on a regular basis. This proposed change shifts the focus from addressing and responding to conduct that has already occurred, to requiring employers to proactively prevent discrimination and harassment in their workplaces to achieve compliance with the SD Act. In assessing compliance with the duty, several factors are to be considered, including: the size, nature and circumstances of the business; the duty holder’s resources (financial or otherwise); and the practicality and costs associated with the steps. These considerations would ensure that the positive duty is adaptable and can be applied by all employers and PCBUs. This duty is intended to align with s 106 of the SD Act, which relates to the vicarious liability of employers for unlawful acts done by their employees or agents. The duty is also intended to operate concurrently with the existing duties in the model Work Health Safety laws, requiring employers and PCBUs to provide a safe working environment for workers, so far as reasonably practicable. 3.  AHRC to monitor and assess compliance with the positive duty The Bill would insert new provisions in the Australian Human Rights Commission Act 1986 ( AHRC Act ), enabling the AHRC to monitor and assess compliance with the proposed positive duty in the SD Act. The Report recommended that the positive duty be accompanied by an appropriate enforcement mechanism to help ensure it is effective and employers engage with their legal obligations. The Bill proposes to confer a number of functions on the Commissioner to monitor and assess compliance with the positive duty, including: conducting inquiries into a person’s compliance with the positive duty and provide recommendations to achieve compliance; issue a compliance notice specifying the action that a person must take, or refrain from taking, to address their non-compliance; applying to the federal courts for an order to direct compliance with the compliance notice; and entering into enforceable undertakings in accordance with the Regulatory Powers Act . 4.  Powers of the AHRC to inquire into systemic unlawful discrimination The Bill would insert a new provision into the AHRC Act to provide the AHRC with a broad inquiry function into systemic unlawful discrimination, or suspected systemic unlawful discrimination, including systemic sexual harassment, on its own motion. The Bill would define “systemic unlawful discrimination” to mean unlawful discrimination that “affects a class or group of persons” and “is continuous, repetitive or forms a pattern.” 5.  Representative bodies to make representative applications The Bill proposes to amend the AHRC Act to enable representative bodies to make representative applications in the federal courts on behalf of people who have experienced unlawful discrimination. 6.  Introduction of a “cost neutrality” approach The Bill proposes to introduce a “cost neutrality” approach whereby, as a default position, each party would bear their own costs in an unlawful discrimination proceeding. Courts would retain their discretion to depart from this default position and make a costs order where they consider it just. 7.  Commonwealth public sector organisations to report to the Workplace Gender Equality Agency The Bill proposes to amend the Workplace Gender Equality Act 2012 (Cth) to bring the Commonwealth public sector in line with the private sector by requiring Commonwealth public sector reporting to the Workplace Gender Equality Agency. The reporting program will require agencies to report annually on six gender equality indicators. Changes to the Fair Work Act On 11 September 2022, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 ( Respect at Work Amendment Act ) took effect. The Respect at Work Amendment Act changed the Fair Work Act 2009 by: introducing definitions of “sexually harass” and “sexually harassed at work” ; expanding the anti-bullying jurisdiction of the Fair Work Commission to allow it to make orders to stop sexual harassment at work; and clarifying that sexual harassment in connection with an employee’s employment can be valid reason for dismissal. The Respect at Work Amendment Act also enables an employee to access their compassionate leave entitlement if the employee or their current spouse or de facto partner has a miscarriage. Get help from an employment lawyer If you have experienced workplace discrimination, including sexual discrimination and sexual harassment, our award-winning employment lawyers can provide you with advice and assistance about your employment rights and entitlements. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/november/respect-at-work-bill/ Mon, 07 November 2022 00:00:00 Unfortunately, it is not uncommon for injured workers to be terminated whilst on worker’s compensation in NSW . It is illegal for an employer to terminate an employee within the first six months of a workplace injury purely because that employee is unfit to resume work at that time. After the first six months, an employer can terminate an injured employee but only after they have met all their obligations to their employee. Even if an employee is terminated, they may still be eligible for worker’s compensation benefits like weekly payments and medical expenses . There are also avenues to explore for seeking reinstatement – if that is what you are looking for. Employer obligations prior to terminating an employee who is on worker’s compensation Before an employer considers terminating an injured employee, even after the so-called ‘protected period’ (being six months from the date of injury), they are obligated to do all things possible to help their employee get back to work. Your employer is required to do the following: Play an active role in developing an injury management plan to get an injured employee back to work. This step is usually done hand in hand with the worker’s compensation insurer; Comply with all their obligations set out in the finalised injury management plan; Seek to provide the injured employee with suitable work duties once cleared to return to work, under certain restrictions (for example, shorter hours, restrictions on weights lifted etc); Provide suitable work duties, wherever practically reasonable, that are similar to the duties prior to injury. It is absolutely in an employer’s best interests to help an injured employee return to work and support and maintain the skills and knowledge of their experienced employees. This in turn reduces recruiting and training costs and generally affords an employer the opportunity to do the right thing by their staff. Therefore, working with an employer to get back to work is always the number one preferred option. Worker’s compensation benefits continue despite termination If an injured employee is terminated for not being able to carry out their normal duties due to their injury, eligibility for worker’s compensation benefits continues. If an injured employee has been receiving worker’s compensation benefits and employment is terminated, those benefits will keep being paid as long as the injured employee’s doctor certifies that they are unfit to carry out their pre-injury duties. If certified unfit to return to work altogether, an employee will continue to receive reasonably necessary medical treatment and weekly benefits in accordance with their entitlement period. If certified unfit for pre-injury duties but fit for suitable duties, the employee will continue to receive medical treatment and pro-rata weekly benefits in accordance with their entitlement period. For example, if an employee’s full-time hours are 40 hours per week b and they are only fit to work 20, then weekly benefits will be paid to make up their pay to the 80% PIAWE rate in accordance with their capacity to earn and during their entitlement period. If the employee has left their employment and the employer was previously paying the weekly benefits, this will now cease and the worker’s compensation insurer will pay the weekly benefits directly to the employee. Can an employee sue the employer in a common law claim? There is no need to follow the path of suing an employer to receive treatment expenses and weekly benefits if injured at work – these are covered by worker’s compensation insurance, which all employers pay for. If, however, the claim is declined or you disagree with a decision about work capacity, for example, your IRO-funded lawyer can refer the insurer’s decision to the Personal Injury Commission on your behalf. Being terminated does not preclude an injured employee from suing for work injury damages (a common law claim) if the injury was caused by the employer’s negligence and once the injury has been accepted by the insurer as reaching the 15% whole person impairment threshold. A work injury damages claim is a claim for past and future loss of earnings. Options for reinstatement after termination while on worker’s compensation If an employee has been terminated or made redundant purely because they were unfit for work due to a work injury, then they may be able to apply for reinstatement once they are certified fit for previous duties. The first step is to ask the employer for reinstatement to a position that is no less preferential than the position that was held prior to becoming unfit because of injury. If the employer does not agree with the requested reinstatement, the employee may apply to the Industrial Relations Commission (IRC) for a reinstatement order. This will require the evidence of a doctor to certify that the employee is fit to resume pre-injury duties. This process needs to be applied  within two years of dismissal. We recommend you obtain advice from your union or an employment lawyer regarding termination or applying for reinstatement Penalties for employers who fail to meet their obligations to injured workers If an employer fails to adhere to their obligations, injured employees do have the option to refer them to the worker’s compensation insurer and the State Insurance Regulatory Authority (SIRA). There may be other actions possible against the employer and you should discuss this with your union or an employment lawyer Failure to adhere to their obligations could see employers at risk of fines in excess of $11,000. Get help from a worker's compensation lawyer Hall Payne Lawyers specialise in worker's compensation claims in NSW. We also have an employment law team who are able to advise you further in respect of employer obligations and potential actions available to you If you require assistance with a workplace injury matter, please contact our NSW worker’s compensation team for a complimentary assessment of your entitlements. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation, either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/october/termination-on-workers-comp-nsw/ Sun, 30 October 2022 00:00:00 Estate planning for blended families can often pose significant challenges for clients and their lawyers. When someone who has been living in a blended family environment dies, there is an increase in the potential for someone to challenge the Will (often referred to as contesting a Will). This is due to the competing interests for inheritance claims between your current partner, children of your current relationship, children of previous relationships and stepchildren. What is a blended family? A blended family is where one or both partners have child/children from a previous relationship. Blended families can create complexity in estate planning, as partners consider the intricate decisions about distributions and appointments due to the number of relationships involved. Designing an estate plan for you In all Australian States & Territories, rights are bestowed on partners, children and in most States, on stepchildren to claim on your estate if you have not provided for them. The importance of estate planning cannot be underestimated . The laws are complex, however with the right planning, you can reduce the risk of a lengthy and costly estate claim. Managing competing interests in blended family estate planning Some couples choose to leave their inheritance all to each other. They usually mirror each other’s Wills. This is done on the understanding between the partners that the survivor will provide an inheritance to their stepchildren when they subsequently die. This may happen, but there are no guarantees because the surviving partner can change their Will at any time. It will be obvious that tension and worry when deciding between your desire to provide for your partner versus the needs of your children from your previous relationships. This issue can often arise when considering disposal of the family home — there is an obligation to ensure the surviving spouse has accommodation along with a wish to ensure that the family home is preserved for the ultimate benefit of the Will-maker’s children. There are two common approaches that address this issue: Granting a life interest over the family home; or Allowing the partner a right to reside in the family home perhaps for a specified period. You should get legal advice as to the best option for your circumstance. Avoiding an estate claim and maintaining amicable relationships Estate claims are relatively easy to commence and often the legal costs of them (which are typically very high) are funded by your estate, reducing the inheritance available and changing your intentions on who you wished to benefit. A simple Will is not sufficient to address the problems of blended families but there are a number of strategies that can be adopted to minimise the risk of claim. Importance of engaging a lawyer to draft your Will We recommend that everyone over the age of 18 should make a valid Will, even if they do not have extensive assets to bequeath. Under Australian estate law, a person who dies without a will has no control over how their assets are distributed. For this reason, it is important that a lawyer is engaged to ensure all formalities required for a valid Will are fulfilled. When someone dies without a Will, legislation in each state/territory determines the order that unpaid debts and taxes are settled, and then the formula by which the remaining assets of the estate are distributed to family members. The formula varies between states and territories but essentially benefits a spouse first, followed by any children and then more distant relatives. Estate disputes not only cost money, but they also often fracture families for generations. Get help from a Wills and Estates lawyer Talk to one of our solicitors from our Wills and Estate team for a range of ideas and options to help minimise the risk of a later claim. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation, either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: Undue influence and coercive behaviour towards a Will-maker What happens to your social media accounts after you die? Enduring Power of Attorney and providing gifts to your attorney https://www.hallpayne.com.au/blog/rss/blog/2022/october/estate-planning-blended-families/ Mon, 24 October 2022 00:00:00 Hall Payne Lawyers secures a worker’s compensation common law judgment in the sum of $967,383.39 for an injured worker who fell through a roof of a shed, sustaining significant injuries. The result in Walker v Greenmountain Food Processing Pty Ltd [2020] QSC 329 was a deserved one for the worker who suffered significant injuries in a traumatic workplace accident but continues to work in an alternative role. Background The injured worker, Mr Walker, was employed at a meat processing plant in 2015, owned by his employer, Greenmountain Food Processing Pty Ltd (“Greenmountain”). He was 32 years old at the time and was employed as the maintenance manager of the plant. The position involved management of the repairs and upgrades of the plant, management of employees and ensuring the machinery was running smoothly. Greenmountain engaged contractors, PBQ, who undertook maintenance on the boilers at the plant. Mr Walker, as maintenance manager, oversaw the maintenance of the plant and the boilers. The boilers were essential to the running of the plant. How was the worker injured? Mr Walker was on his way home at about 5.00 pm on a winter’s night after meeting with a co-worker outside of work. It was becoming dark, and he was driving past the plant when he noticed plumes of steam coming from the rendering shed. He attended the rendering shed, as the light was beginning to fade, to investigate what was causing the steam. PBQ were scheduled to attend the plant the next day for regular maintenance, and Mr Walker called Mr Butler from PBQ to discuss the issue and see what needed to be done. Mr Walker went up the stairs outside the shed to access a platform between the roof and the tanks, trying to examine the defect. There was no rail preventing access to the roof from this platform and no sign warning of risk. Nor were there any bollards blocking off the access point. Mr Butler talked him through the potential issues over the phone and said it would be important to know which valve was leaking so it could be repaired. Unable to see from where he was in the failing light, Mr Walker accessed the roof from the platform whilst still on the phone with Mr Butler. He was aware at the time that there was alsynite sheeting on the roof of the shed. Alsynite is a transparent fibreglass material designed to let light into the shed. A hole in the roof repaired previously had been covered over with alsynite. The material was not appropriate for weight bearing. Mr Walker knew there was alsynite somewhere on the roof but was not aware of the precise location. Unable to see in the failing light, he stepped on the alsynite which gave way, sending him down into the shed and onto the concrete 7 metres below. As a result, he lost consciousness, sustained fractures to his skull, injuries to his spine, wrist and knees, and subsequently was determined to have sustained a brain injury. Worker sues employer for common law damages After he received entitlements through a statutory worker’s compensation claim , Mr Butler subsequently sued his employer, Greenmountain, due to their failure to provide a safe work environment and their breach of duty of care. In Queensland, if you’ve been injured at work and you believe your employer’s negligence contributed to your injuries, you can sue for damages. Common law damages include, inter alia, compensation for: pain and suffering; past and future wages or economic loss; past and future medical expenses. Greenmountain defended the common law claim and the matter proceeded to trial. The employer’s defence At trial, the employer raised a number of issues in their defence of the claim, including: That there was no breach of duty – based on the argument that it was not reasonably foreseeable that Mr Walker would access the roof; and There was contributory negligence on the part of Mr Walker in accessing the roof. The employer raised the fact that Mr Walker attended the roof of the shed outside his work hours and in failing light. They contended this was not part of his normal duties. It was argued that access to the roof was generally not required by staff. They pointed out that he did so while speaking on a mobile phone. They also argued that Mr Walker had consumed a beer prior to the incident while meeting with his friend and that he had failed to mention this to Workplace Health and Safety. Findings by the Court The Supreme Court of Queensland ultimately found for Mr Walker, finding: that Greenmountain staff had accessed the roof previously and might be expected to access the roof for certain tasks; it was expected that a person in Mr Walker’s role might find a need to access the roof; the nature of his work and the production would mean this may occur outside normal shift hours; there may be a sense of urgency for the access – such as attending to urgent repairs affecting production; that the presence of alsynite on the roof meant there was a risk to a person accessing the area of falling through said alsynite; that it would have been a simple matter for the employer to guard against such risks, including by means of training, a safe work method statement for working at heights, or a sign at the entry of the roof from the platform – none of which had been undertaken or installed; and that Mr Walker’s actions did not meet the threshold for contributory negligence. The Court found in favour of Mr Walker and determined the employer had breached its duty of care to Mr Walker and that breach had caused his injuries. The Court awarded Mr Walker the sum of $967,383.39 by way of common law damages. The Court commented that it was a: ‘case of a worker who did not disobey a direction and who was acting under pressure. The circumstances presented a fertile field for inadvertence.’ Get help from a worker's compensation lawyer Hall Payne Lawyers are proud to have represented Mr Walker and assisted in obtaining a successful and substantial judgment for a deserving claimant. If you’ve had a workplace injury and you believe your employer’s negligence contributed to your injuries, you may be entitled to pursue common law damages. You can contact one of our award-winning worker’s compensation lawyers for advice and assistance. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation, either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/october/roof-fall-common-law-win/ Mon, 17 October 2022 00:00:00 In early 2022, a decision in the Federal Court unearthed an underutilised provision of the Fair Work Act , which requires employers to hand over payments in lieu of notice to outgoing employees before termination of employment. The practice of employers providing such payments after the date of termination is common. This decision confirms that such conduct is unlawful. What is a notice period? When an employee resigns, they will usually have to provide their employer with a period of notice. The duration of that notice will depend on either their award, an enterprise agreement or an employment contract. Likewise, if the employer terminates an employee, they will also have to provide the employee with the relevant notice period. Sometimes, however, the employer will not require the employee to work the notice period, but rather, they will make a payment in lieu of that notice and advise that the employee is not required to return to the workplace. Notably, casual employees (as opposed to permanent employees either full-time or part-time) are not usually required to provide notice, nor are they entitled to receive. It is also important to recognise that there may also be different notice periods for permanent employees applicable to termination of employment during a probationary period. Notice periods and final pay are also protected under the National Employment Standards. The Federal Court decision Southern Migrant and Refugee Centre Inc v Shum (No 3) [2022] FCA 481 (“Shum”) was an appeal from a successful adverse action claim in the Federal Circuit Court of Australia. The aggrieved employee was abruptly terminated by her employer.  By email, she was notified that her termination was effective immediately and that she would receive payment in lieu of notice ‘in the next week’. This payment was ultimately made on 23 June 2017, some 4 days after the termination. While there were broader legal issues at play, this article is concerned only with the approach to the payment of notice, which on appeal was found to have contravened s. 117 of the Fair Work Act . This reversed the trial judge’s decision that the termination process was compliant. Section 117(2) of the Fair Work Act reads: The employer must not terminate the employee’s employment unless: (a) the time between giving the notice and the day of the termination is at least the …(the minimum period of notice) … or (b) the employer has paid to the employee … payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee … at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice. Snaden J concluded that, by providing payment in lieu of notice four days after the date of termination, the employer contravened s. 117(2)(b). His Honour found that the provision clearly specifies that payment in lieu of notice is a precondition for lawful termination. Notably, this excludes circumstances in which the employee continues to work for the duration of the notice period. How was the employee compensated? The former employee, who was self-represented, argued that payment of her notice period four days after finishing work meant that the date of her termination was in fact 23 June 2017, the day she received her payment. This would have taken her period of continuous service with the employer beyond one year, entitling her to a longer minimum notice period, and therefore a larger termination payment. Unfortunately for the employee, Snaden J did not agree. The fact that the termination was carried out unlawfully did not, in his Honour’s view, change the date or effect of the termination. The employee was still terminated on 19 June 2017, albeit unlawfully. The only consequence of the contravention was the possibility of a penalty imposed on the employer and compensation paid to the employee. As Snaden J explained: “A dismissal effected contrary to the requirements of s 117(2) of the FW Act is not void or otherwise of no effect. It is simply effected in contravention of the requirements of that section. That reality potentially visits other consequences, including exposure to relief in the nature of civil penalties and compensation under pt 4-1 of the FW Act. But it does not follow that employment that is terminated in contravention of s 117(2) continues as though not terminated at all.” Snaden J referred the question of potential compensation to the Federal Circuit and Family Court for rehearing. The amount of compensation, if any, received by the employee for the contravention was therefore a question for another day. However, if Snaden J’s opinion is anything to go by, any penalty awarded is likely to be small because the effect of the delay on the employee was negligible: “…given that [the employee] was paid in lieu of notice a short time after the dismissal took effect, it may be that her loss is minimal (if there is any at all) and/or that no occasion to impose a pecuniary penalty upon SMRC arises.” In cases involving longer delays of payment in lieu of notice, penalties imposed upon employers and compensation awarded to outgoing employees could be significant. Need advice regarding your termination of employment final pay? This case is a decisive wake-up call to employers, that the often-overlooked requirement in s. 117(2)(b) will be enforced. If you’ve been terminated or you’ve resigned and you believe your termination of employment final payment calculations, including your notice period, are not correct, you should speak with your Union or seek advice from an employment lawyer. Contacting a Hall Payne employment lawyer You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/october/notice-pay/ Sun, 09 October 2022 00:00:00 The vast majority of Australian workers have a superannuation account. The primary purpose is to save for life after retirement. But most super funds also provide insurance options for the worker . These include total and permanent disablement cover (TPD), income protection (also called salary continuance) and death benefits. While the rules around insurance cover through super have undergone significant change over recent years, it is still the most economical way to cover yourself in the event of injury and illness for most Australians. What is TPD insurance? TPD stands for Total and Permanent Disablement. The most common type of TPD insurance generally covers you when you have an injury or illness which has prevented you from working and which (based on medical evidence) will continue to prevent you from returning to any form of work for which you are suited taking into account your education, training and experience. This is known as “any occupation” cover. Another type of TPD insurance is what is called “own occupation” cover. This type of cover only requires you to be unable to continue working in your usual occupation rather than taking into account all types of employment you might be qualified or suited for. However, these policies are becoming rare within the superannuation context.  What is income protection? This type of insurance replaces your regular income if you are prevented from working on a temporary basis due to an illness or injury. Depending on your level of cover, you might have a benefit paid to you for 12 months, two years, five years or less commonly, up to age 65 (or even 70 in some cases).  You have to be unable to work for the required length of time initially (generally referred to as the “waiting period”) before a claim will be accepted and paid. You will also generally be paid monthly in arrears. Cover is usually based on a percentage (usually 75%) of your standard average income prior to getting sick or injured.  What are death benefits in super? This is life insurance which pays a lump sum to your nominated beneficiaries (or to your estate to be dealt with under your Will ). Some policies include exclusions if you die as a result of suicide, a pandemic illness or during active duty.  Insurance inside super versus insurance outside super There are some pitfalls of insurance inside super. This type of insurance is by no means a “one size fits all” type of cover. It is a good safeguard or safety net for those who do not want to investigate other insurance options. This includes options for insurance outside super, which may be more suited to their personal circumstances but which will typically cost more in terms of premiums payable. Nobody likes to wade through an insurance policy (definitely great as night-time reading if you are having trouble getting to sleep). However, we always recommend that you obtain a copy of your insurance policies from your super fund (or the relevant product disclosure statements as a minimum) and review them to ensure you understand precisely what, and how much, you are covered for. By way of example, until 2020, nobody really took any notice of any pandemic exclusion clause in an insurance policy. They are very common in life insurance (death benefit) policies where generally speaking; any death benefit will not be payable if the insured dies from a pandemic-related illness. Insurance benefits generally reduce the older you get. This benefit amount usually changes each year. Some even cease well before a member is even considering retiring so it’s best to understand those basics to ensure you have the right cover if you are planning to work to a certain age (for example 65 years old). Get help with a TPD, income protection or death benefit claim At Hall Payne Lawyers we assist with complicated insurance claims. We can help you understand whether or not your claim is likely to be accepted based on a review of your policy of insurance. Having someone on your side who understands the claims process as well as the insurer’s obligations and the legal terminology, is often the difference between having your claim accepted or rejected by the insurer. If your claim has been denied, is taking too long or you have any other concerns in relation to TPD, income protection or death benefits, get in touch with a member of our Superannuation and Insurance team. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: Difference between accumulation and defined benefit super funds Superannuation complaints – death benefit beneficiaries Federal Court determines insurer acted unfairly in cancelling policy and demanding $24,649.91 from the insured individual https://www.hallpayne.com.au/blog/rss/blog/2022/september/insurance-in-super/ Mon, 26 September 2022 00:00:00 Unfair dismissal and wrongful dismissal are often used interchangeably. However, they are not the same and there are key differences between the two. In simple terms, the primary difference between them is one is statute based (that is legislation/laws made by Parliament) and the other is common law based (that is, law declared by Judges). This blog explores, in more detail, the eligibility requirements for both and the remedies available under either unfair dismissal or wrongful dismissal. What is unfair dismissal? Section 385 of the Fair Work Act 2009 (Cth) ( FW Act ) says a person has been unfairly dismissed if the Fair Work Commission ( FWC ) is satisfied that a person has been dismissed, and the dismissal: was harsh, unjust, or unreasonable; and was not consistent with the Small Business Fair Dismissal Code; and the dismissal was not a case of genuine redundancy. Section 387 of the FW Act provides for a non-exhaustive list of matter the FWC must consider when deciding if a dismissal is unfair, including: whether there was a valid reason for the dismissal related to the employee's capacity or conduct? Whether the employee was notified of the reason? Whether the employee was given an opportunity to respond? If the employee was sacked for poor performance, had they been warned about the poor performance? Eligibility requirements for unfair dismissal To be entitled to make a claim for unfair dismissal under the FW Act, the worker must have been an employee of a national system employer . A national system employer includes, but is not limited to, private enterprise employers and Commonwealth authorities. It’s important to note that state and local government employers are not national system employers. If an employee satisfies the national system employer requirements, they are eligible to make an application for unfair dismissal if: they have completed the minimum period of employment, being at least: 6 months; OR 12 months if the employee worked for a small business (less than 15 employees). they earn less than the high-income threshold ($162,000.00), or a modern award covers their employment; or an enterprise agreement applies to their employment. Section 387 of the FW Act provides the criteria for whether a dismissal is harsh, unjust or unreasonable and a number of considerations are taken into account. Those are: whether there was a valid reason for the dismissal related to the person’s capacity or conduct; whether the person was notified of that reason; whether the person was given an opportunity to respond to any reason related to their capacity or conduct; any unreasonable r efusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal; if the dismissal related to unsatisfactory performance by the person, whether the person had been warned about that unsatisfactory performance before the dismissal; the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; the degree to which the absence of dedicated human resource management specialists or expertise in the business would be likely to impact on the procedures followed in effecting the dismissal; and any other matters that the FWC considers relevant. Remedies for unfair dismissal If a person is successful in their claim for an unfair dismissal, there are two remedies available. The first is reinstatement. The FWC may make an order to reinstate a person into their job, however, this is not common. The more common remedy is compensation. This is ordered where an order of reinstatement is determined to not be appropriate due to the breakdown of trust and confidence between the employer and employee. What is wrongful dismissal? Wrongful dismissal is an action brought against an employer at common law for a breach of contract. The Encyclopaedic Australian Legal Dictionary defines wrongful dismissal as: “ an employer’s termination of an employee’s employment otherwise in accordance with the terms of the contract of employment, award or statute.” Common examples of wrongful dismissal are when an employer: dismisses an employee without complying with the notice period stipulated in the employment contract; dismisses an employee before the end date of the contract; dismissing an employee without providing ‘’reasonable notice’’. Remedies for wrongful dismissal If a person is found to have been wrongfully dismissed, damages (compensation) may be awarded. The main basis for litigation for wrongful termination (wrongful dismissal) is in respect to contracts which do not provide for the precise period of notice required by an employer to terminate the contract. The High Court, in the judgement of their Honours Brennan CJ, Dawson & Toohey JJ in Byrne v Australian Airlines [1995] HCA 24 relevantly held: ”In the absence of any provision in the award and of any express provision in the contract of employment the law would regard it as a legal incident of the contract that it should be terminable upon reasonable notice or summarily for serious breach.’’ In cases where a contract is silent on the period of notice required to terminate a contract of employment or provides only a minimum, a term may be implied into the contract that provides for what the court considers in the circumstances of the case to have been “reasonable notice’’. In such circumstances there is a contractual “gap to fill” and the law will imply into the contract a term to the effect that the contract is terminable by either party on reasonable notice to the other: see Westpac Banking Corporation v Wittenberg [2016] FCAFC 33 at [238] and Byrne v Australian Airlines Ltd [1995] 185 CLR 410, 425 and 446. This remedy is not available where a precise, defined notice period is expressly provided for in the contract. The reasonableness of the notice is a question of fact and is determined at the time at which the notice is given, not at the time at which the contract was made: Martin-Baker Aircraft Co. Ltd. v Canadian Flight Equipment Ltd [1995] 2 QB 556 . at p. 581. It is well established that a term which expressly provides for a minimum period of notice leaves room for the implication of reasonable notice of a longer period: see for example McAlister v Yara Australia Pty Ltd [2021] FCCA 1409 or Windross v Transact Communications Pty Ltd [2002] FMCA 145 . This applies equally to minima terms in industrial instruments: see Graske v 5KA Broadcasters Pty Ltd (1988) 55 SAIR 702. The period of notice that may be implied, and therefore the damages that an employee in this situation may recover, is determined by the Courts on the basis of the particular employment. The high grade of the position, length of service, age of the employee, financial circumstances and responsibilities of the employee, and nature of the industry are but a few of the factors the Court can consider when determining what the period of reasonable notice of termination is appropriate in a given case. Awards of damages in this type of claim can be significant. Some cases have seen 18 months to 2 years' wages awarded as damages, though it is more common to see periods of 6 to 9 months’ notice (salary) awarded as damages. This is also a remedy which would ordinarily occur in a costs jurisdiction, where costs will follow the event, unlike claims under the Fair Work Act . In a costs jurisdiction, the Court will usually order the unsuccessful party to pay the costs of the successful party. Get help from an employment lawyer If you’ve been dismissed and you believe you are eligible to lodge an unfair dismissal claim, it’s important that you act fast as there are strict time limits applied to these claims. If you’re unsure if you’re eligible for either unfair dismissal or wrongful dismissal action against your employer, either contact your Union or one of our employment lawyers to discuss your options. Again, it’s important that you act fast in relation to these types of claims. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/september/unfair-vs-wrongful-dismissal/ Mon, 19 September 2022 00:00:00 Parenting orders are orders made by the Federal Circuit and Family Court of Australia in relation to parenting arrangements for the children of separated parents. They can be made with consent of both parties or after a court hearing or trial. Parenting orders must be complied with by both parties. Contravention of parenting orders is a matter for the court to deal with, not for individual parents to action. This blog looks at a specific case where both parents engaged in “tit-for-tat” behaviour after initial orders were not complied with, rather than initiating a contravention application for the court to decide the matter of non-compliance. What is a contravention application? Once a parenting order is made for a child, it is expected to be complied with. When compliance becomes an issue or the other party has breached the orders without a reasonable excuse, a party may institute contravention proceedings by way of an application. The Federal Circuit and Family Court have now adopted a national contravention list which operates nationally and electronically. Accordingly, the court envisages that a final hearing date can be allocated in a relatively short period from the filing date. Therefore, you can be assured that any contravention of orders will be dealt with quickly and cost-effectively.   Case review - filing of a contravention application In the case of Bircher & Bircher , the children’s father filed a contravention application with the Federal Circuit and Family Court of Australia. Mr Bircher asserted that the mother had withheld a child from spending time with him (pursuant to parenting orders made in 2019) on a number of occasions.  For the purposes of this blog, the relevant contravention concerns the January 2021 school holiday period where both parties had withheld the child from the other. A summary of that specific contravention at the first instance is as follows: The parties had three children together, aged 15, 13 and 12. The court made parenting orders in November 2019. The father filed a contravention application in May 2021, alleging that between 1 January 2021 and 8 January 2021, the mother contravened the parenting order by failing to make one of the three children available to spend time with him during the school holidays. The mother retained that child in her care for a period of seven days. The mother’s defence was that she retained that child in her care because she alleged the father had, without justification, previously withheld the same child from her between 4 December and 11 December 2020 (a period of seven days), in contravention of the parenting orders. The mother did not, at that time, file a contravention application but rather, elected to withhold the child at a future time to ‘even the score’.   At paragraph 11 of the judgement, the court found that the mother’s behaviour of “evening the score” did not constitute a reasonable excuse for her to contravene the terms of the parenting order. The mother was found to have breached the parenting order and fined. The initial judge made an order for compensatory time between the child and the father to occur at the end of the Term 2 school holidays in 2021. The mother appeals the court’s finding After the father was successful in his contravention application, the mother appealed the case. The Federal Circuit and Family Court (Division 1) dismissed the appeal by the mother and made the following comments: “ Even if the father contravened the parenting orders initially by retaining the child until 11 December 2020 the lack of compliance of the orders (by the father) does not entitle the mother on the facts of the case to over-hold the child as she did until 8 January 2021. The Federal Circuit and Family Court (Division 1) further noted that the appropriate course of action or remedy for the mother would be to invoke the court’s power by making an application for the father’s previous (December 2020) contravention rather than engage in self-help or, for want of a better term, “tit for tat”. The court went to great lengths to justify this. “… to accept such an argument would lose sight of the fact that parenting orders regulate the actions of parents for the benefit, protection and security of the children. ” “On a more general level, self help is not open to citizens when they believe another citizen has breached a court order or legal rule: the remedy always lies in an application to the courts to adjudicate upon such issues according to law.” Best interests of the child are paramount As with all parenting matters, the best interests of the child and how they are affected is the primary consideration of the courts. The actions of both parents, in this case, appear to have been for the benefit of the parents, not the children. The Federal Circuit and Family Court (Division 1) pointed out to the parties that their ‘ tit-for-tat’ behaviour resulted in double the disruption of the court-ordered parenting arrangements, deprivation for the child who was withheld and negative impacts for that child’s siblings.   Get help with your parenting arrangements This case clearly demonstrates that it is not up to one of the parties to even the score if the other has breached or failed to comply with a parenting order. The parents may have reached an appropriate resolution to the breach, either amicably between themselves or with the aid of mediation . However, it appears they chose to harm the other parent, disregarding the best interests of the children. If you are in a similar position, we strongly discourage you from engaging in this ‘tit-for-tat’ behaviour or taking matters into your own hands. Rather, it is recommended that you obtain legal advice in relation to your family law issues, including any need to file a contravention application for non-compliance with parenting orders. Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2022/september/contravention-parenting-orders/ Sun, 11 September 2022 00:00:00 If you’re suffering stress and unable to work, the National Employment Standards entitle you to paid sick leave. This is available to all employees except casuals and is for any injury or illness, including stress and pregnancy-related illnesses. But what if the stress you are experiencing is related to your work? Are you able to make a worker's compensation claim for stress in NSW ? The short answer is yes. This would be a worker’s compensation claim for psychological illness , namely stress. If your stress-related illness is caused by your work, you may be entitled to: weekly payments to cover your wages for the time you are not at work; the cost of reasonable medical expenses; and depending on the severity of your illness, lump sum payments. If it’s found that your employer's negligence caused your illness, you might also be able to claim for what is known as a Work Injury Damages lump sum (a common law claim). Unrelated to your worker’s compensation claim (and in addition to that claim), if your injury or illness prevents you from returning to your job, you may also be able to make a total and permanent disablement (TPD) claim through the insurance you have in your super fund. How do I make a worker’s compensation claim in NSW? You cannot make a worker's compensation claim for ‘stress’ as such. If you have a stress-related condition, you may be able to make a claim for a ‘psychological or psychiatric injury’. It is vitally important that your GP correctly identifies your psychological condition on your WorkCover Certificate (“Certificate of Capacity”); for example, 'adjustment disorder’. If the doctor refers to your injury as just ‘stress’, your claim will most likely be declined or rejected. You will need to show that you have a diagnosed psychological condition that has been caused by a particular event or events at work and that your work was a significant contributing factor. Obtaining treatment for your condition should be your first and foremost priority. For example, visiting your GP or treating practitioner and obtaining a correctly completed Certificate of Capacity, and being referred to a psychologist or psychiatrist for treatment specific to your condition. A worker's compensation claim in NSW should be made within six months of becoming aware of your psychological injury. There are limited circumstances where a claim ‘out of time’ may be accepted but the best thing to do is lodge your claim within the six-month time limit. You can learn more detail about the claim's process in our blog,  "How to claim workers compensation in NSW" . In NSW, your worker’s compensation claim is commenced by: obtaining the abovementioned Certificate of Capacity from your GP or treating practitioner; completing a Worker's Injury Claim Form which you can download here ; and forwarding both the form and the medical certificate to your employer. If you are uncertain about completing the claim form, your solicitor will be able to assist you. Speak with a workers compensation lawyer today:  1800 659 114 Your employer has seven days to forward the Certificate of Capacity and claim form to their worker's compensation insurer. What happens once I’ve submitted my worker’s compensation claim? More often than not, worker's compensation insurers will often deny psychological injury claims in the first instance.  As previously stated, to make a worker's compensation claim, you need to prove that the psychological/psychiatric injury occurred during your employment and that your work was the cause or was a significant contributing factor. Although this can be difficult to prove, a lawyer can collate the evidence to support your claim. Having someone experienced in worker’s compensation claims working with you gives you the time and energy to concentrate on getting better. Your lawyer can help by: meeting with you to gain an in-depth understanding of your situation; compiling a statement; obtaining copies of your clinical notes from your treating practitioners; gathering witness statements; and organising medical/psychological assessments conducted by a SIRA-approved Independent Medical Specialist. The insurer may also require you to attend a medical/psychological assessment, again conducted by a SIRA-approved Independent Medical Specialist. If the insurer arranges such an assessment, it is compulsory for you to attend. They may also have you meet with an investigator to obtain detailed information from you regarding the circumstances surrounding your injury. The investigator will prepare a report for the insurer and a statement from you and any witnesses. Those witnesses are most likely to be your fellow employees. What worker’s compensation benefits will I receive in NSW? Weekly payments Once your claim is approved, generally your weekly worker's compensation payments will commence and continue until: you have been able to return to work; you reach a Work Injury Damages settlement (a lump sum payment involving employer negligence); you have been receiving worker's compensation payments for five years (unless your whole person impairment is greater than 20% and you have been assessed as being unable to work for an indefinite period); you reach the maximum total weekly compensation limit; you reach retirement age plus one year (the average age of retirement in Australia is currently between the ages of 62 and 65). You can learn more detail about these payments in our article, “Worker’s compensation NSW – entitlements to weekly payments” . Lump sum payment for permanent impairment Depending on the severity of your illness, you may be entitled to a lump sum payment for permanent impairment. You can learn more about this compensation component in our article, “Worker’s compensation NSW – lump sum claims for permanent impairment” . Medical expenses You will have access to payments to cover medical expenses, including medical treatment, hospital treatment, ambulance fees, and travel expenses to attend medical appointments. You can learn more detail about medical expenses available to you in our article, “Worker’s compensation claims NSW – your entitlement to medical and other expenses” . Work Injury Damages lump sum If you have been diagnosed with a psychological injury resulting from your employer's negligence, you may be entitled to sue your employer for a Work Injury Damages lump sum. To be eligible for this lump sum, you will need to: make a successful claim for worker's compensation; have at least 15% whole person permanent impairment and have this assessment accepted by the insurer or determined by the Personal Injury Commission; and have been paid all statutory lump-sum payouts for permanent impairment that you are entitled to. All these criteria must be met before a work injury damages claim can be settled. Can my employer terminate me if I am on worker’s compensation? The NSW Workers Compensation Act 1987  essentially prevents employers from terminating an employee who has sustained a work injury purely because they are unfit to resume work within the first six months. During this 'protected period,' if an employer terminates an injured worker's employment because they are not fit for employment because of the injury, then the employer may be liable to pay a fine of up to $11,000. The employee may also be eligible to lodge an unfair dismissal claim. Get help from a worker's compensation lawyer The process for lodging a worker’s compensation claim in NSW may appear daunting, but a specialist worker's compensation lawyer, who understands psychological claims, can take care of the entire process on your behalf and assist you in pursuing your claim and optimising your compensation. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation, either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/september/wc-stress-claims-nsw/ Mon, 05 September 2022 00:00:00 Industrial action, in the form of strikes, is a tool used by workers and their unions to attempt to persuade their employers to make positive change in their workplaces.  However, the law around the ability to lawfully take such action is relatively complex. In 2022, workers have participated in teachers’ strikes, nurses’ strikes, train strikes and many other industrial strikes across Australia. The considerable attention that workers’ strikes attract has resulted in many employees throughout Australia asking; “what legal rights do I have to take industrial action and to strike?” Can I strike? Unlawfully refusing to work is, generally, grounds for termination The starting point in addressing your right to strike (or to take any industrial action including striking), is that refusing to attend work without a lawful reason for the absence (such as being medically unwell/unfit for duties) can be grounds for disciplinary action by an employer. Given this, employees are best advised to talk to their union before striking. It will be important to be mindful of the legislative provisions relating to striking which, under section 19 of Fair Work Act ( the Act ), is a form of industrial action. The Fair Work Act protects employees from their employers taking action against them (for example, termination of employment) in relation to taking industrial action (such as striking) in certain circumstances. This is referred to as protected industrial action and is ordinarily organised by the relevant union. What is protected industrial action? Under section 408 of the Act, your union can only assist you and other employees to take protected industrial action when: they are negotiating on a proposed enterprise agreement that is not a Greenfields or multi-enterprise agreement; or the action is in response to industrial action taken by their employer (and other conditions set out in the Act are satisfied). A Greenfields agreement is an enterprise agreement relating to a new enterprise. This might include a new agreement for a business or activity, or a project or undertaking which is made when the employer has not yet employed the workers who will be covered by the agreement. A multi-enterprise agreement is an agreement that covers two or more employers who are not working for a single interest. The Act sets out lengthy procedural steps for taking protected industrial action. The relevant union is ordinarily the applicant. If followed, this will result in the Fair Work Commission issuing a protected action ballot to authorise the industrial action. In these circumstances, employees whose union has assisted them to take protected industrial action will generally be protected from disciplinary action and other civil action by their employer. In order for the action to be protected, the following requirements will need to be met: not taking the action before the expiry of the existing industrial agreement; not occur before the parties have tried to reach agreement; comply with notice requirements (typically three days); comply with any relevant orders from the Fair Work Commission/a relevant Court; not be in relation to a demarcation dispute which is a dispute over which workers should be performing a particular job; not relate to unlawful agreement terms or be part of pattern bargaining (which is negotiating in relation to two or more enterprise agreements); and be authorised by a protected action ballot issued by the Fair Work Commission. If these circumstances are not present, it is unlikely that the industrial action taken will be protected. Under section 418 of the Act, the Fair Work Commission can make an order to stop unprotected industrial action from being organised and/or occurring. A warning; protected industrial action can be suspended under certain conditions Employees and their union should be mindful that under section 424 of the Act, the Fair Work Commission must make an order to suspend protected industrial action in certain circumstances. This includes if the action would threaten the life, safety, health, or welfare of the population or part of it and/or the Australian economy or an important part of it. These are high thresholds to meet and ordinarily require some exceptional circumstances. Responding to industrial action taken by my employer? If your employer has taken industrial action against you, such as locking you out from work, you, with your union’s assistance, may have the right, in response, to take protected industrial action. In such circumstances, you should seek assistance from your union. To be protected from disciplinary or other civil action, your union will be mindful that the industrial action taken must be in response to the employer’s protected industrial action. Conclusion Taking protected industrial action is a legitimate and useful tool for workers and their unions in enterprise bargaining. There are, however, complex legal requirements that must be met and non-compliance can create potential legal exposure to workers and their unions. Unions are well experienced in taking such action and the relevant requirements that apply. Workers should seek to utilise that experience when contemplating the taking of industrial action. Get help from an employment lawyer For advice as to whether a contemplated strike will be protected from disciplinary action, you should speak with your Union or arrange a consultation with one of our award-winning employment lawyers before taking part in the strike. We note that this article has only set out the industrial action regime under the Fair Work Act which does not apply to employees covered by state-based legislation and state industrial instruments. If you are an employee covered by state-based legislation and state industrial instruments, you should seek advice from your union in relation to any potential industrial action. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: What is Unfair Dismissal and what are my options? Seasonal workers engaged in fruit picking entitled to minimum rate of pay Sacked Sydney bus driver reinstated https://www.hallpayne.com.au/blog/rss/blog/2022/august/right-to-strike/ Sun, 28 August 2022 00:00:00 In a major win for our client, the Rail Tram and Bus Union ( RTBU ), the Full Court of the Federal Court quashed the decision of the Fair Work Commission to approve a greenfields agreement made between Busways and the Transport Workers’ Union (TWU), on the basis that the privatisation of public transport bus services is not a ‘ genuine new enterprise ’. You can read the judgement here: Australian Rail, Tram and Bus Industry Union v Busways Northern Beaches Pty Ltd (No 2) [2022] FCAFC 55 . What is a Greenfields Agreement? A greenfields agreement is an enterprise agreement: that relates to a ‘ genuine new enterprise ’, which includes a new business, activity, project or undertaking, that an employer or employers are establishing or propose to establish; and where the employer or employers have not employed any of the persons to be covered by the agreement, who will be necessary for the normal conduct of the enterprise. Background On 23 October 2019, Transport of New South Wales ( TfNSW ) announced that the NSW government intended to invite private bus operators to tender for 13 bus service contracts in various areas around Sydney, which had previously been operated by the State Transit Authority of NSW (the STA ). On 18 August 2020, three companies, known as Busways, were incorporated to bid for 3 of the 13 bus service contracts. Two days after being incorporated, the Busways, Transport Workers’ Union of Australia and Drivers Enterprise Agreement (the Agreement ) was made between Busways and the TWU. Since Busways (the newly formed entities) had not employed any persons necessary for the normal conduct of the enterprise, Busways made an application to the Fair Work Commission for the Agreement to be approved as a greenfields agreement. Decision of the Fair Work Commission On 9 September 2020, Commissioner Harper-Greenwell of the Fair Work Commission (the FWC ) approved the Agreement, as she was satisfied that the Agreement met the requirements under the greenfields agreement provisions of the Act.   Our client, the RTBU, who was not aware that Busways had made the application to the FWC for approval of the Agreement, engaged Hall Payne Lawyers, led by our Principal, Joseph Kennedy. We then appealed the Commissioner’s decision to the Full Bench of the FWC on the basis that the Agreement was not a greenfields agreement because it did not relate to a ‘ genuine new enterprise’ . The Full Bench of the FWC upheld the original decision of Commissioner Harper-Greenwell and found that the Agreement related a to ‘ genuine new enterprise ’. Hall Payne Lawyers and our client then devised a legal strategy to have that decision overturned. Appeal to the Full Court of the Federal Court The RTBU appealed the Full Bench’s decision to the Full Court of the Federal Court, where Justices Bromberg, Wheelahan and Snaden overturned the decisions made by the FWC to approve the Agreement. The Full Court was tasked with determining whether the Agreement was, at the time of its making, an agreement that related to a ‘ genuine new enterprise ’ in accordance with section 172(2)(2)(b) of the Fair Work Act 2009 (Cth) (the Act ). Justice Bromberg found that the meaning of the words ‘ genuinely new enterprise’ was that the “ proposed enterprise must be genuinely new or, in other words, truly authentic or really new. ” His Honour said that the use of the word ‘ genuine’:   “ tends to suggest that the proposed enterprise must be new to a substantial degree. ” When considering whether an enterprise is ‘ genuinely new ’, his Honour formed the view that there needed to be a: “ comparison between what existed or exists and the enterprise which is being brought into existence ”. His Honour went on further to say that if: “ the existing enterprise and the proposed enterprise substantially bear the same character, then it will usually be the case that the proposed enterprise is not a “genuine new enterprise”. ” In conducting his assessment of the essential characteristics of Busways and the STA, his Honour accepted our arguments about the practical similarities between the two enterprises. Justice Bromberg found that Busways was not a ‘ genuine new enterprise ’ as: the totality of the services to be provided to the public by Busways were substantially the same as those provided by the STA; most of the plant and equipment would remain owned by TfNSW, as was the case with the STA; the proposed workforce was essentially, if not wholly, the same as the STA, as the new operator(s) were required to employ all existing staff for a minimum of 2 years on the same terms and conditions that they were employed on with the STA; and the change from an enterprise operating as a not-for-profit to a for-profit organisation was not an essential characteristic, as it did not apply to all categories of ‘ enterprises’ , which includes a business, activity, project or undertaking. Justice Bromberg said that the Full Bench of the FWC had made two fundamental errors, which were: it “ relied upon the proposed enterprise being new to Busways ” and the correct question that the Full Bench should have asked was “ whether the proposed enterprise is new in the sense of being generally novel rather than whether the proposed enterprise is new from the perspective of its proponent ”; and the focus of the Full Bench was “ substantially upon whether the proposed enterprise was the continuation of the same enterprise conducted by the STA ” and it “ relied upon the fact that Busways had not acquired the activities of STA as a “going concern” .” In his reasons, Snaden J found that the words ‘ genuine new enterprise ’ required “ an enterprise that is both “genuine” and “new” . In his Honour’s view, the adjectives of “ new ” and “ genuine ” were unambiguous. His Honour said that: “[s] omething is or will be “new” if its creation is recent or foreshadowed ” and to “ be “genuine”, something must be, in truth, what it purports to be. The adjective imparts notions of authenticity, honesty or sincerity. ” His honour found that after surveying the “ factual landscape ” of the matter: “ the nature or character of the pre-tender bus services … is (or was), in substance, the same as the nature or character of the bus services in respect of which the Busways entities made the [Agreement]”. Therefore, the enterprise that Busways were establishing when they made the Agreement was not a genuine new enterprise for the purposes of section 172(2) of the Act. Justice Wheelan agreed with the conclusions of both Bromberg and Snaden JJ and, in turn, the orders proposed by Snaden J, for the decision of the FWC to be quashed. This was a fantastic outcome for the RTBU and its members and may prove to be an ongoing precedent in relation to the issue of greenfield agreements moving forward. Get help from an employment lawyer If you’re experiencing any issues with your employment, you should contact your Union or one of our award-winning employment lawyers for advice and assistance. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/august/greenfield-agreement-decision-quashed/ Mon, 22 August 2022 00:00:00 In this article, we explore a case where a worker’s claim for terminal benefits under worker’s compensation was denied by WorkCover Queensland as the medical evidence did not suggest the condition would terminate his life. Upon application to the Workers’ Compensation Regulator, that original decision was confirmed. The worker appealed to the Queensland Industrial Relations Commission (‘QIRC’) who overturned the prior decisions and the worker’s compensation claim for benefits for a terminal condition was ultimately accepted. Exposure to hazardous chemicals at work The Appellant, Mr Plant, was a 47-year-old spray painter who had worked in the industry since the age of 15. During his career, he regularly used paints that contained isocyanates. Mr Plant had worked for a number of different employers which implemented varying standards of workplace safety and equipment. He would work long hours and, even in a managerial role, he was exposed to paint containing isocyanates. He was also a smoker but quit in 2020. Isocyanates are hazardous chemicals often contained in paints and used in manufacturing materials. Mr Plant suffered from two conditions as a direct result of exposure to these chemicals. Both conditions are likely to significantly reduce his life expectancy. He was diagnosed with chronic occupational asthma with isocyanate exposure, and chronic obstructive pulmonary disease (‘COPD’). Worker lodges a WorkCover claim which is rejected Mr Plant applied for workers’ compensation benefits for latent onset injuries under section 128B of the Workers’ Compensation and Rehabilitation Act 2003 (‘the Act’), which entitles workers to compensation for a terminal condition, defined by section 39A of the Act , suffered in the course of their employment. His application was rejected at first instance by WorkCover Queensland and then by the Workers’ Compensation Regulator (‘the Regulator’) on review. The Regulator confirmed WorkCover’s decision that the expert medical evidence did not support a conclusion that Mr Plant’s conditions were “ expected to terminate his life ” within the definition of the meaning of “ terminal condition ” in section 39A of the Act . The Regulator determined Mr Plant was not entitled to compensation on the grounds that: “ the predominant contribution to future respiratory failure and shortening of life expectancy is not Mr Plant’s occupational asthma, but rather his cigarette smoking-related emphysema ”. Mr Plant lodged an Appeal of the Regulator’s decision to the QIRC. The QIRC appeal In Plant v Workers’ Compensation Regulator [2022] QIRC 169 , Mr Plant submitted that the medical evidence available confirmed that his chronic occupational asthma contributed significantly to the reduction of his life expectancy and that the condition exacerbated the COPD, rendering a terminal prognosis. The Regulator did not accept that the medical evidence satisfied the definition of “ terminal condition ” under section 39A of the Act and submitted that, on their interpretation of the sub-section, the condition for which compensation is sought must be the actual condition that will terminate the worker’s life. Mr Plant argued that, given the speculative nature of the section, (being that it is not possible to know if a particular condition has terminated a worker's life until the worker has passed away), the choice of words when drafting the definition in the legislation was a careful one which aligned with the purpose of section 39A in the Act . Mr Plant further submitted that the dispute of his entitlement, on the basis that there was a co-existing ‘ dominant’ condition more likely to end his life, was not supported by any evidence challenging the doctor’s diagnosis of that latent onset injury and its reduction in his life expectancy. Mr Plant argued the insurer and Regulator had incorrectly interpreted the purpose of section 39A in the Act because: once a worker’s injury is terminal as diagnosed by a doctor, the worker has a terminal condition within the meaning of the Act; and there is no additional requirement that the insurer or the Regulator considers it right or just that the terminal condition benefits be payable to that worker. The QIRC decision The QIRC found in favour of the injured worker. The QIRC found the legislation does not permit the insurer to insert arbitrary criteria relating to there being a ‘ main’ or ‘ dominant’ terminal condition. Industrial Commissioner McLennan agreed with Mr Plant that the respondent was seeking to “ construe words up into s 39A(2) [the definition of terminal condition] that are not there ” and made comment at paragraph 69 that: “ To allow the Insurer to effectively insert an arbitrary consideration would be to usurp the role of the legislature in making a policy decision as to the appropriate constraints within which compensation may be paid for terminal conditions.” In its reasons for the decision, the QIRC found the determination to deny compensation to Mr Plant due to his cigarette smoking was, in the Commissioner’s view, minimising Mr Plant’s terminal conditions of chronic occupational asthma with isocyanate exposure, and COPD. The Commissioner ultimately found for Mr Plant, setting aside the Regulator’s decision to uphold the rejection of his claim, and awarding costs of the hearing in Mr Plant’s favour. Conclusion Hall Payne Lawyers welcomes the QIRC’s interpretation of the Act in improving access to worker’s compensation benefits when sick and injured workers are diagnosed with a terminal condition related to work. If you have suffered injury or illness as a result of exposure to hazardous chemicals or respirable dust in your workplace, we can assist you with your compensation entitlements. This is an extremely complex area of law and having a leading law firm with a strong track record acting for individuals with occupational dust-related diseases and their families, will ensure you get the compensation you deserve. We offer a free initial consultation and can act on a ‘no win no fee’ basis. Contacting a Hall Payne WorkCover lawyer You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: Queensland Court of Appeal win for seriously injured worker Judge determines law to be illogical, unreasonable and inconsistent in stonemason’s dust disease claim Can I quit my job while on workers compensation? https://www.hallpayne.com.au/blog/rss/blog/2022/august/workcover-terminal-illness-claim/ Mon, 15 August 2022 00:00:00 Hall Payne recently represented the FBEU and their member, a firefighter who had until 2021, been employed with Fire and Rescue NSW (FRNSW). The member had been a firefighter for 10 years. He was also employed by NSW Ambulance as a paramedic and had held that job for 3 years. He developed a psychological injury, PTSD, in 2018 as a result of traumatic experiences at work and FRNSW sought to medically discharge him in 2021 for being unfit for duty. Worker resigns from NSW Ambulance Following his diagnosis, the worker made a worker’s compensation claim against NSW Ambulance. After more than a year of medical treatment, the member’s PTSD went into remission. His doctor recommended a slow return to work with NSW Ambulance as part of his ongoing treatment. Ideally, this would involve working in support roles to facilitate slow adjustment to the work environment. Unfortunately, NSW Ambulance refused to create such a role and refused to grant the client further leave without pay. As a result, the client felt he had no choice but to resign from his job at NSW Ambulance. Fire and Rescue NSW subsequently seeks to medically discharge him from their employment FRNSW, hearing about his resignation from NSW Ambulance, arranged for the worker to undergo a medical assessment. This seemed to be in response to the worker’s attempt to return to work with FRNSW. The doctor who was engaged by FRNSW determined that the member was unfit for duty as a firefighter. The doctor reasoned that inevitable exposure to traumatic incidents might cause a relapse of his psychiatric symptoms. The doctor gave significant weight to the fact that, as a person with a history of PTSD, the member had a higher risk of future psychiatric injury than most people. The fact that the client’s PTSD was in remission and that he no longer exhibited any symptoms of PTSD, did not change the doctor’s mind. Based on this medical report, FRNSW decided to medically discharge the employee. What does medical discharge mean? This is a process under the applicable award. If a firefighter is found to be permanently unfit to perform the firefighter’s ordinary duties, then the firefighter will be discharged from his employment. This is in effect a dismissal. Appealing the termination of employment Having received the FRNSW decision to discharge the worker, the FBEU and its member developed a legal strategy with Hall Payne to overturn that decision. The union filed a dispute in the NSW Industrial Relations Commission and during that process, obtained our own medical evidence. The NSW Industrial Relations Commission decisively overturned FRNSW’s decision. During proceedings, reports from five other medical experts/practitioners were considered by the Commission. This evidence demonstrated that the member’s PTSD was in remission and that he was fit to return to work. The Commission considered that the FRNSW medical assessment showed nothing more than that the member was ‘somewhat vulnerable’ to relapse, a description that was unquantifiable. The Commission also observed that many ordinary people are more susceptible to psychological injury than others, some potentially more so than the member. Like anyone in the general population, potentially marginally higher vulnerability to psychological harm should not affect a person’s fitness for work. The Commission also noted the potentially dangerous precedent that might be set by this medical discharge: I reject the proposition which underpins Dr Parmegiani’s opinion that Mr Beasley is “unlikely to resume his pre-injury role of retained firefighter”, which is that any firefighter (and, presumably any other front line workers who are exposed to traumatic incidents such as police, paramedics, nurses and doctors) who has been diagnosed with PTSD, is permanently unfit to perform their ordinary duties and should, effectively, be consigned to the scrap heap . Such a proposition pays no regard to the steps that such firefighter may have taken, such as Mr Beasley took with Mr Oxley, and may be continuing to take, in order to overcome the symptoms of PTSD and to cope with the risk of relapse upon further exposure to traumatic incidents (paragraphs 40-41 at [5]). I am supported in this rejection by the opinions of Mr Oxley, Dr Kasim, Mr Anning, Dr McClure and Dr Canaris. As a result of the decision, the worker is now entitled to return to his position as a firefighter with FRNSW. We are really pleased with this outcome for the FBEU and its member. It will hopefully set a precedent that persons who have suffered PTSD can indeed safely return to work in emergency services. Get help from an employment lawyer If your employment has been terminated for reasons you feel are unfair, unjust or unreasonable, you should speak with your Union or a lawyer experienced in employment law. You can contact one of our award-winning employment lawyers for advice and assistance about any issues you are having at work. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: Full Court appeals see significant win for workers terminated under s.119 of the Fair Work Act Win for RTBU in underpayment of wages case Can I get my job back after an unfair dismissal? https://www.hallpayne.com.au/blog/rss/blog/2022/august/firefighter-dismissal-overturned/ Mon, 08 August 2022 00:00:00 Charities fulfil an integral role within the community and deliver vital services with a unique capacity to respond to a wide range of community needs. For their contribution, charities who register with the national regulator, the Australian Charities and Not-for-profits Commission ( ACNC ), are granted access to a range of attractive benefits. However, obtaining the correct registration can be a complex and challenging process. Benefits of registration All registered charities will have access to some benefit, most notably the exemption from income tax. There are, however, some benefits that can only be accessed by some types, or ‘subtypes’, of registered charities. For example, charities of the subtype, ‘health promotion’ or ‘public benevolent institution’ can access fringe benefit tax rebates and exemptions that are not available to other subtypes. The benefits available, depending on subtype, include: income tax exemption; goods and services tax (GST) concessions; fringe benefit tax rebates and exemptions; payroll tax exemption; state and local government concessions; deductible gift recipient status; reduced company reporting obligations; and grants and regulatory exemptions. It is important that organisations seek advice before registering in order to obtain the benefits required. For advice and assistance, FREECALL 1800 659 114 Legal structure A registered charity is a 'status' rather than a structure, and there are a number of different legal structures suitable for registration or that a prospective charity may adopt. The most common of these structures are incorporated associations and companies limited by guarantee. Each structure has its own advantages and disadvantages and can determine the success of the organisation. You can read more about this structure in our article, ‘Benefits of incorporating associations and clubs’. Eligibility to register a charity To be eligible for registration as a charity, an organisation must: be not-for-profit; have a charitable purpose for the public benefit (and no disqualifying purpose); not be an individual person, political party or government entity; and hold a current Australian Business Number ( ABN ). A not-for-profit organisation is one that doesn’t operate for profit or personal gain of its members. Instead, any net income is put back into the organisation to further and advance the purpose or aim (commonly referred to as the ‘objects’) of the organisation. Not all not-for-profit organisations are charities, but all charities are not-for-profit. The  Charities Act 2013 (Cth) recognises twelve charitable purposes, which include: advancing health; advancing education; advancing social or public welfare; advancing religion; advancing culture; promoting reconciliation, mutual respect and tolerance between groups of individuals that are in Australia; promoting or protecting human rights; advancing the security or safety of Australia or the Australian public; preventing or relieving the suffering of animals; advancing the natural environment; other similar or analogous purpose ‘beneficial to the general public’ (a general category); and promoting or opposing a change to any matter established by law, policy or practice. The charitable purpose of the organisation will determine their 'subtype', (for example, advancing health, public benevolent institution, health promotion charity, etc.) which may affect their eligibility to access certain benefits or concessions. Organisations should seek advice before choosing their subtype to ensure they optimise the benefits available to the charity. Principally, whether an organisation meets the criterion of being ‘not-for-profit’ and ‘having a charitable purpose’ will be determined by the construction of the organisation’s governing document (ie: constitutions, rules, and trust deeds). Generally, the governing document must indicate that the organisation operates on a ‘not-for-profit’ basis and align with one or more of the twelve charitable purposes referred to above. In addition to determining the ‘subtype’, the construction of the governing document will also determine eligibility of other matters, including deductible gift recipient status. How to register a charity To register, an organisation must be able to provide the following: their ABN; the organisation’s governing document; and contact details and an address for service; and financial documents (ie: annual returns, fundraising plans, etc). In addition, an organisation must be able to inform ACNC, at the time of application, of their: subtype; charitable purpose; date of establishment; legal structure; beneficiaries and responsible persons; and the concessions they seek. Continuing obligations to maintain charity status Once a charity is registered with the ACNC, they must continue to meet certain obligations in order to maintain their registration. These ongoing obligations include: notifying the ACNC of any changes to the organisation, including alterations to the governing document and any change of responsible persons; keeping accurate and detailed financial records; reporting the charity’s operations and finances annually (Annual Information Statement); and complying with the governance and conduct standards determined by the ACNC. Get help when looking to register a charity Obtaining registered status is a significant milestone for any charity, but the process of registration can be complicated and challenging to even the most discerning or experienced.   Hall Payne Lawyers have extensive experience and expertise assisting and advising registered charities and not-for-profit organisations. Whether you’re looking to register your charity or are seeking general advice, contact us to arrange a consultation with one of our team. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/july/register-charity/ Mon, 25 July 2022 00:00:00 In a decision dismissing an insurer’s interim dispute to cease worker's compensation payments and medicals expenses for an injured worker in Tasmania , Hall Payne Lawyers successfully obtained orders dismissing the employer/insurer’s case. This has ensured continued receipt of worker’s compensation benefits for the worker. Background The worker was employed as a high school teacher with over 20 years teaching experience. Due to bullying and harassment occurring at the workplace, the teacher made a claim for worker's compensation stating they were suffering from stress and anxiety. This diagnosis was supported by the worker’s general practitioner with the provision of worker’s compensation medical certificates. The employer/insurer elected to dispute liability via a referral to the Tasmanian Civil & Administrative Tribunal (‘ the Tribunal ’) to stop payments covering the teacher’s wages and medical expenses. The dispute was on the basis that the teacher did not give notice of the injury as soon as practicable, which is a requirement under the Workers Rehabilitation and Compensation Act 1988 ( the Act ). For further information about your worker’s compensation entitlements and the process for claiming benefits, see our blog, ”WorkCover Tasmania - your plain English guide to workers compensation” . If you need advice or representation in relation to any type of worker’s compensation matter, you should seek advice as early as possible. For advice and assistance, FREECALL 1800 659 114 The law For an employer/insurer to successfully dispute initial liability and coverage of a worker’s compensation claim, they must do so within 84 days of receiving the claim from the worker and lodge reasons with the Tribunal about why they do not believe they are liable to pay. They must also advise the worker of this decision, in writing. The employer/insurer cannot unilaterally decide not to pay a worker and must obtain the approval of the Tribunal. You should seek immediate legal advice if you have lodged a worker’s compensation claim with your employer but have not received weekly payments to cover any incapacity to work and/or coverage of medical expenses. This type of dispute is often referred to as a s81A dispute. For an employer/insurer to be successful in a s81A dispute, they only need to convince the Tribunal that there is a reasonably arguable case to stop worker’s compensation payments. What is a reasonably arguable case? Ordinarily, it is not difficult for an employer/insurer to prove that a reasonably arguable case exists. This is because the case of St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90 is often referred to as authority on this point, which states (our emphasis added): “...a reasonably arguable case will exist concerning the liability of an employer to pay a worker if it is reasonably arguable on the material available in relation to the claim or identified deficiencies or weaknesses in the claim that, following a contested hearing it may be rejected.” The employer/insurer’s case It’s noted that the employer/insurer disputed having to pay the teacher their worker’s compensation entitlements on the basis that the teacher did not comply with the requirement to give notice of the injury as soon as practicable. The notice provisions under the Act require: a worker who suffers an injury to notify their employer as soon as practicable after the occurrence of the injury; and the notice to be given before the worker has voluntarily left the employment in which he suffered the injury; and the notice to be given orally or in writing; and the notice to be given to: the employer of the worker or, if there is more than one employer, to one of the employers of the worker; or a person under whose supervision the worker is employed; or a person designated for the purpose by the employer; or a person having authority or apparently having authority to receive such a notice on behalf of the employer; and the name and address of the person injured; and the nature of the injury, the date on which the injury occurred, and the cause of the injury. From the above, it is evident that there are strict requirements under the legislation when making a worker’s compensation claim and understandably, they are not always met. If you require advice or assistance about making a worker’s compensation claim please obtain legal advice so that these requirements are not missed. For advice and assistance, FREECALL 1800 659 114 The worker’s submissions We submitted evidence on behalf of the teacher and attended the hearing to make submissions in support of the teacher’s case that notice of the injury was given as soon as practicable as required under s32 of the Act. At the Tribunal hearing, some core submissions included: The fact that notice of injury may be given orally or in writing does not exclude other methods by which notice of injury may be given, and potentially can include such things as physical actions and body language; and There is no obligation on a worker to identify a precise cause of an injury. It is enough for a worker to identify that there was a connection between the injurious event and the workplace; Reading all the statements together, by his communications with the principal and leading up to and including 29 April 2021, the teacher’s words, actions, and body language conveyed to the principal that he was suffering a detriment, and that the work issues he had raised with the principal were the cause; and The teacher, therefore gave proper notice of his injury on either the afternoon of 28 April 2021 or the morning of 29 April 2021 in discussions between himself and the principal (whenever occurring) that they both refer to in their statements. Was it reasonably arguable that the worker failed to give notice as soon as practicable? Despite the employer/insurer’s reasonably ‘low bar’ in order to achieve a reasonably arguable case order, the Tribunal agreed with the submissions put on behalf of the worker and dismissed the employer/insurer’s case. The Tribunal agreed with our submissions and relevantly stated: 28.  In this instance, the worker’s words to Ms Langham when he appeared in her office cannot reasonably be seen as anything other than a continuation of his frustration and dissatisfaction with work issues, expressed to Ms Langham no more than a week earlier. Further, I consider Ms Langham’s evidence about the distressed and agitated state in which the worker presented to her does not constitute “observations made by the employer”, but rather “the totality of the words and conduct” of the worker, as per Slicer J in Wilkins v St Giles Society. 30.  This is because the worker’s evidence is that when he ‘had a breakdown’ in Ms Langham’s office, he specifically told Ms Langham he needed time off because he was stressed and anxious because of work. He says he referred to consistent build-up of pressure from work, the run-in with his co-worker. 31.  Ms Langham’s evidence about this issue, is that she “does not recall” the worker “specifically stating that he was stressed and anxious because of work”. She does not contradict the worker’s assertion about what he said. She is unable to recall. 32.  Taking Ms Langham’s evidence at its highest, at a final hearing there would be no reasonable possibility that Ms Langham’s evidence could displace the worker’s assertion that he gave to her notice of both the nature and the cause of his injury. Worker’s compensation benefits to continue As a result of the Tribunal’s findings, the teacher was able to remain on worker’s compensation payments covering their wages and was able to continue to have medical treatment paid for by the employer/insurer. A copy of the full decision in The State of Tasmania (Department of Education) v D. [2021] TASCAT 6 (23 November 2021) can be found here . Get help from a worker's compensation lawyer You should obtain legal advice if: your claim has been made and you are waiting to see whether it has been accepted; or your claim has been disputed either by s81A or other means. Hall Payne Lawyers are highly skilled in advising and representing workers in the Tasmanian Civil & Administrative Tribunal/TASCAT. If you need advice or representation in relation to any type of worker’s compensation or personal injury matter, you should seek advice as early as possible.  Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/july/workers-comp-win-for-tas-teacher/ Mon, 18 July 2022 00:00:00 Most Australian workers have a superannuation fund into which monthly or quarterly deposits are made by their employer as well as the option for contributions to be made by the worker themselves. There are two primary types of funds; defined benefit funds and accumulation funds. This article looks at the differences between these types of funds. What’s the purpose of superannuation? The main purpose of a superannuation fund is to build a pool of savings for retirement. Employers need to make super guarantee payments (a legislated percentage of the employee’s wages) and some employers will also offer higher contributions as part of a salary package, employment contract or enterprise agreement. You should seek legal advice if your employer is not meeting its statutory requirements in relation to super guarantee payments. You can learn more about this in our blog, “My employer hasn’t been paying my superannuation guarantee” . As well as the super guarantee and any top-up payments made by your employer, fund members are also able to add their own contributions (capped in a financial year). Such “personal contributions” have significant tax saving opportunities. If your spouse is not working or is a low-income earner, you can also contribute to their superannuation account with additional tax saving opportunities. The type of fund the worker has will determine how their benefit is paid when they retire. Defined benefit funds Defined benefit funds are a dying breed. Most that are still in existence relate to public sector or large corporate funds. Some examples of current corporate defined benefit funds include TelstraSuper, QANTAS Super, QSuper and Australia Post Super. Unfortunately, they don’t accept new members. How much your benefit is worth on retirement is “defined” by the rules of the fund itself and depends on the following: How much money your employer has to contribute based on your earnings; How much extra you contribute yourself; How long you have worked for your employer; and Your salary level when you retire. For example, after 30 years' holding a defined benefit fund, your retirement benefit might be worth: Five times your final salary (as a lump sum); or 80% of your final salary (as a monthly payment), until you die. For many defined benefit fund members, the payments upon retirement can be significantly better than an accumulation fund. If you’re considering changing from a defined benefit fund to an accumulation fund, it’s crucial that you seek professional advice before you take that step. Once you get out of a defined benefit fund, you can't get back in. If you are unsure whether you will be better off by moving, we suggest you don’t, at least not before receiving advice. Defined benefit funds are extremely generous when considering the benefit available on retirement. Accumulation funds Most Australians have an 'accumulation' fund. The idea is that your money grows or 'accumulates' over time, similar to a savings account with a bank. The value of your super in an accumulation fund depends on the following: How much money your employer has to contribute based on your earnings; How much extra you contribute yourself; How much your fund earns from investing your money; How high any fees are that you are being charged by your fund; and The type of investment option you choose for your fund. If a profit or return is made on the funds invested on your behalf, then these returns are added to your account balance. Unfortunately, any investment losses are also taken out of your account balance. Accumulation funds perform optimally when contributed to over a long period of time. Profits and losses can be somewhat volatile over short periods of time but are often evened out when the fund’s performance is considered over a longer period. Most funds allow for members to choose the way their money is invested. When you’re young, you may choose a more aggressive investment portfolio as you have the time to weather the ups and downs of the market. As you age and approach retirement, you may choose to have a more balanced, or even conservative, investment portfolio. There are also options to choose, for example, a ‘green’ investment fund or to expressly forbid your super fund to invest your money in certain ventures. In an accumulation fund,  you bear the risk of profits and losses. The timing of such profits and losses can significantly affect your super payout upon retirement. For example, if you’re retiring at a time that funds have performed well over the last few years, the balance of your fund paid out to you will be comparatively good. On the flip side, if the fund has performed poorly over the 2-3 years prior to your retirement (for example, as funds did during the global financial crisis and in the early days of the Covid pandemic), your balance may be eroded, delivering you less retirement income. Get help from a superannuation and insurance lawyer It is always recommended that you take an active role in managing how your money is invested by your superannuation fund. Remember, most funds allow for members to choose the way their money is invested. If you’re unsure about your options or what type of portfolio would best suit your needs, you should contact your super fund or financial advisor for advice. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this blog interesting or useful You may also like to read: Federal Court determines insurer acted unfairly in cancelling policy and demanding $24,649.91 from the insured individual Superannuation complaints - death benefit beneficiaries Super decision - High Court allows recovery of dying man's super payments https://www.hallpayne.com.au/blog/rss/blog/2022/july/types-of-super-funds/ Mon, 11 July 2022 00:00:00 If you’re injured at work in Tasmania, you’re entitled to lodge a claim for worker's compensation . If your claim is accepted, you will be entitled to weekly payments, medical expenses and other benefits. But what happens if your WorkCover claim is disputed by your employer? How long does your employer have to make a decision on your WorkCover claim? After you submit a worker’s compensation claim for your workplace injury, your employer has 84 days (from the date you lodge your claim) to decide whether they will accept or dispute it. While this decision is being determined, you are entitled to receive cover for reasonable medical expenses and weekly payments. Further, although your claim has been disputed it is important to note that your claim has not been rejected . You should continue obtaining medical certificates and submitting them to your employer while you have an incapacity for work. What happens if my employer disputes my claim? If a decision is made by the employer to dispute your claim, they must: inform you in writing; and provide the reasons for disputing your claim; and make a referral to the Tasmanian Civil & Administrative Tribunal ( TASCAT ) in accordance with section 81A of the Workers Rehabilitation and Compensation Act 1988 . A referral to TASCAT under section 81A is essentially a means for the employer to inform TASCAT that they are disputing liability for your claim and to provide appropriate reasons for doing so together with relevant material to support their referral. The types of material the employer may provide with their s 81A referral can include: medical reports; witness statements; surveillance/video/photographic evidence. The employer must also provide you with copies of any evidence, prior to the TASCAT hearing. What’s the process if my claim is referred to TASCAT? Once the matter is referred to TASCAT, the tribunal must consider whether there are reasonable grounds for the employer to have disputed the claim. TASCAT will set a hearing date within 14 days of receiving the employer’s section 81A referral. You will be informed about this in writing. Section 81A hearings are preliminary hearings and are therefore NOT determinative on whether the claim should be accepted or rejected. Instead, what is being decided is whether TASCAT is satisfied that there is a "reasonable basis” for the employer to dispute your claim. Both you and the employer will have an opportunity to submit evidence (prior to the hearing), in support of your respective positions. What might an employer consider when rejecting a claim? Historically, the threshold for an employer to be successful in a section 81A hearing before TASCAT is very low as all that they need to do is show that there is a dispute in the case. Here are some examples of material commonly used by an employer to advance their case to dispute your claim: Evidence that you were not at work on the day you were injured or that you were injured outside of the workplace; Medical evidence from an independent doctor that your ongoing injury is not work-related and is due to degenerative changes or a pre-existing condition; Evidence that your injury should not be covered because it arises from disciplinary action, counselling or administrative action. If TASCAT accepts the employer’s decision to dispute your claim If TASCAT decides there is a reasonable basis for the employer to dispute your claim, you will be notified of this decision in writing. If you accept the Tribunal’s decision, your claim will not proceed. If you do not agree with the Tribunal’s decision and you want to pursue your claim further, you will need to lodge another referral with TASCAT. At this point, it is highly recommended you seek advice and assistance from your Union or a lawyer experienced in worker’s compensation claims in Tasmania. If TASCAT rejects the employer’s decision to dispute your claim if TASCAT decides that there is no reasonable basis for the employer to dispute your claim, your claim will be treated as though it had been accepted and you will continue to receive cover for reasonable medical expenses and weekly payments. An employer can still dispute your claim and/or refuse to pay for certain medical expenses following the initial decision. Should this be the case, it is highly recommended you seek legal advice. Get help from a worker's compensation lawyer If your worker’s compensation claim is accepted, your weekly payments, medical expenses and potentially some other benefits like domestic assistance, will commence. If your injury is permanent, at some point when it has stabilised, you may also be eligible for a lump-sum payment for permanent impairment. It is recommended that you seek legal advice about your eligibility and options regarding a permanent impairment claim to ensure your entitlements are protected. If your claim is disputed or rejected, or you have any other issues during the life of your WorkCover claim, our worker’s compensation team in Tasmania are highly experienced in helping injured workers get all the compensation they deserve. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: WorkCover Tasmania - your plain English guide to workers compensation I injured myself at work but my employer does not have insurance Worker’s compensation benefits reinstated for injured Tasmanian worker https://www.hallpayne.com.au/blog/rss/blog/2022/july/disputed-workers-comp-tasmania/ Mon, 04 July 2022 00:00:00 On occasion, a worker may be asked to sign a deed of release when an employer moves to terminate the worker. A deed of release is a legally binding document between an employer and employee, setting out the terms of settlement (for example, payments and what each party can and cannot do), following an employee’s termination. In this article, we explore how a deed of release can affect an injured worker’s ongoing worker’s compensation benefits following termination of employment. Deed of release clauses that impact worker’s compensation entitlements While a deed of release may contain “standard” clauses, it is important to be aware of the effect this may have on any future claims against the employer. This can include a worker’s compensation claim if there has been an injury surrounding the issues covered in the deed of release. The wording of the deed of release could also prevent future claims against the employer. As an example, it is common for a worker who has been subjected to bullying and harassment by the employer, to also lodge a worker’s compensation claim in relation to a psychological injury. The employer may then attempt to terminate the worker (after a period of absence from the worker) and include a deed of release in their negotiations. Call  1800 659 114  for advice, before signing anything At this stage, the worker should contact their union or an employment lawyer to assist them with negotiation of a deed of release. Section 151A of the Worker’s Compensation Act 1987 (NSW) (the “WC Act”) states that if a person recovers damages in respect of an injury from the employer, the injured worker is not entitled to any further compensation under the WC Act. Damages is defined as any form of monetary compensation and/or any amount paid under settlement of a claim. Case law The most recent case dealing with this issue was Gardiner v Laing O’Rourke Australia Construction Pty Limited [2020] NSWCA 151 . In this case, the court agreed that when determining the issue of whether a deed of release can prevent further worker’s compensation entitlements, the intention of the parties should be taken into account. The Deed in Gardiner had provisions stating that worker’s compensation rights would be preserved. Examples of deeds of release which may prevent further compensation Whilst it is accepted that an employer cannot contract out of paying worker’s compensation entitlements, the wording of any deed of release needs to be properly considered before signing as section 151A may apply in some circumstances. Not only is it important to obtain legal advice from your union or an employment lawyer where you have an ongoing entitlement or an intention to lodge a worker’s compensation claim, but it is crucial to also obtain advice from a worker’s compensation lawyer. An example of a provision in a deed of release that may prevent further compensation (including worker’s compensation) is provided below: Payments The employer will make a payment to the employee of $8,000 of wages less deductions required by law. The Payment will be made within 7 days of receipt of this document properly executed by the employee. Release In consideration of the payment outlined above, the employee releases the employer from any and all claims* arising out of or connected with the dispute**. * Claims is defined as any and all complaints, actions, suits, causes of action, demands, claims, debts, proceedings, etc., which the employee now has, or could, would or might have had but for this document, whether or not known at the date of this document. ** Dispute is usually specific to the case in question. As in the example outlined earlier, the “dispute” would be the bullying and harassment claim. A common example of where a deed of release may prevent future claims is when the clauses are general in nature. As with this example, the phrase “any and all claims” would be seen to incorporate any claim including a work injury damages claim relating to the worker’s compensation claim. How to avoid losing your compensation entitlements The most effective way of avoiding this issue is to negotiate a clause in the deed of release which specifically states that the release does not apply to any personal injury that arises from the employment. In this way, there is a clear intention that any worker’s compensation or other personal injury rights are intended to be protected. Wording a relevant clause as follows, for example, will protect a work injury damages claim: “… excepting any claims for any personal injury to the employee, arising out of or connected with the Employment, to which worker’s’ compensation or equivalent legislation would apply. ” Conclusion It is important to have a lawyer experienced in employment law review clauses in any deed of release your employer is asking you to sign. A properly drafted deed will protect your entitlements to current and future work injury damages claims. Contacting Hall Payne worker's compensation lawyer You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/june/deed-of-release/ Sun, 26 June 2022 00:00:00 In early 2022, Hall Payne Lawyers represented an education facility attendant in relation to a termination of worker's compensation benefits in Tasmania. On 6 April 2022, the Tasmanian Civil and Administrative Tribunal (‘the Tribunal’) reinstated the worker’s benefits, meaning that the worker received backpay and an ongoing entitlement to worker's compensation payments. This case reinforces the inherent rights of injured workers and the need to obtain legal advice (or Union assistance) if your worker’s compensation benefits are unfairly terminated. Background In 2020, the worker injured his knee at work. He made a claim for worker's compensation (WorkCover) and began to receive payments of weekly wages and medical benefits in accordance with the law. Ultimately, he required surgery to his injured knee, which was covered by his medical treatment entitlements. Following surgery, he then commenced a period of rehabilitation. Before he was able to return to work, the worker was notified by the employer that his benefits were being terminated on the basis that he had “wholly and substantially recovered” from his injury. This put the worker in a very difficult position. He was still recovering from the injury and surgery, had limited leave entitlements and faced an extended period of being unable to work with no entitlement to worker's compensation benefits. Undoing the termination of worker's compensation benefits The worker’s benefits were terminated via a certificate given to the worker under section 86(3) of the Workers Rehabilitation and Compensation Act 1988 . This section specifically deals with circumstances under which an employer may terminate or reduce a worker’s payments. In determining whether the certificate was valid, we provided advice on whether the certificate properly identified the injury and the basis on which the worker had recovered from the injury sufficiently to be able to return to work. Our advice to the worker was that the certificate which relied upon to terminate his worker’s compensation benefits was technically deficient. It didn’t explain how or when the worker had recovered from his injury. Order of the Tribunal Upon identifying the deficiencies in the certificate, the issue was raised with the employer, via their lawyers. Ultimately, the employer conceded that the termination should not have been made and the Tribunal made an order reinstating the worker’s benefits. Conclusion This outcome is a significant win for the worker. The re-starting of his benefits puts him in the best possible position to continue his recovery with the support of worker’s compensation payments as well as the costs of further medical treatment being met. More broadly, it demonstrates the importance of carefully considering termination of benefits under Tasmanian worker's compensation legislation . Workers have significant rights under the scheme, particularly when claims are accepted. Workers who face being moved off their worker's compensation claim (or having their benefits reduced), for any reason, should obtain advice about their rights before allowing an employer to do so. Contacting a Hall Payne worker's compensation lawyer You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/june/workers-comp-benefits-terminated/ Mon, 20 June 2022 00:00:00 In 2021, Hall Payne Lawyers represented a member of the Rail, Tram and Bus Union ( RTBU ) in relation to criminal charges of dangerous driving occasioning death and negligent driving occasioning death. In July 2021, the RTBU member pleaded guilty to only the second charge; negligent driving occasioning death. In this case, the Court’s decision affirms the significant benefits of having experienced legal representation when facing serious traffic charges. The Court imposed a Conditional Release Order ( CRO ) with conviction and the minimum 12-month licence suspension. A Conditional Release Order (which may be made with or without a conviction), is a community-based sentence for the lowest level of offending. They replace the former sentencing option of a good behaviour bond. For the term of the CRO, an offender must not commit any offence and must appear before the Court if called on to do so at any time. Background In 2020, the RTBU member, whilst operating a STA bus in Sydney, stopped at an intersection and on a green light turned right across two lanes of oncoming traffic. As the RTBU member executed the right-hand turn, an oncoming scooter rider collided with the bus. The scooter rider was seriously injured in the accident and taken to hospital. Police were called to the scene of the accident and arrested the RTBU member for the purposes of undertaking mandatory drug and alcohol testing. After the RTBU member was interviewed by police, he was charged with dangerous driving occasioning grievous bodily harm and negligent driving occasioning grievous bodily harm. The RTBU member was released on bail and his licence suspended immediately. Driver’s criminal charges upgraded after death of the scooter rider Tragically, the scooter driver passed away and the RTBU member was thereafter charged with the more serious offences of dangerous driving occasioning death and negligent driving occasioning death. Dangerous driving occasioning death is an indictable offence (that is, a serious criminal offence). The Department of Public Prosecutions ( DPP ) and the defendant (the driver) are required to go through a process of charge certification and case conferencing prior to sentencing (or hearing) for an indictable offence. The maximum penalty for dangerous driving occasioning death is 10 years imprisonment. A term of imprisonment would have shattered our client and his family. The RTBU member had an impeccable driving record and was known to be a safety focused and conscientious driver who loved his work at the STA. The RTBU member was not only facing the prospect of imprisonment but also the end of his career as a bus driver.  Our defence strategy sees the more serious charge dropped Initially, Hall Payne made representations to the DPP that they withdraw both charges. This was on the basis that the facts did not support a finding that our client’s driving was dangerous or in fact negligent and there were no reasonable prospects of conviction for either charge. The DPP’s evidence, including most notably the CCTV footage, showed that our client checked his mirrors and looked for oncoming traffic. He simply did not see the oncoming scooter rider. Furthermore, we commissioned expert evidence which showed that at the time of the collision, the scooter rider was travelling at 25km/h above the speed limit whilst our client was turning his bus at a cautious 7km/h. Although the DPP refused to withdraw both charges through the case conferencing process, they did agree to drop the dangerous driving charge in exchange for our client agreeing to plead guilty to the negligent driving charge for sentence in the local Court. Negligent driving occasioning death has a maximum penalty of 18 months imprisonment and a fine of $3,300. Defence strategy at the sentencing hearing At the sentencing hearing, we argued that the Court should exercise its sentencing discretion pursuant to section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 and not impose a conviction. This is a power available to the Court to exercise when it would be inexpedient to impose a conviction due to the circumstances of the case. To carry out this strategy, we ensured that the member had completed the traffic offender’s intervention program and had obtained persuasive references from his supervisor, colleagues and medical professionals detailing his good character and the devastating impact of the collision and subsequent criminal proceedings, on our client. We relied on the following circumstances: the offence was a tragic human error; the collision occurred in circumstances where our client had looked for oncoming traffic and simply did not see the scooter rider speeding towards him – the degree of negligence was at the lowest end; our client pleaded guilty to the lesser charge at the earliest available opportunity and is of exceptionally good character; our client was deeply remorseful and had suffered from immense guilt and financial stress following the accident; and a conviction would be devastating for him, both in relation to the loss of his career and the lifelong impacts of a criminal conviction. The DPP sought the imposition of a Community Corrections Order ( CCO ) commonly known as a community service order. A CCO is a more serious penalty than a CRO (referenced earlier in this article) and requires the offender to comply with standard conditions. The sentencing Magistrate also has discretion to order a number of other conditions aimed at reducing the risk of re-offending, such as: prohibiting the consumption of alcohol or drugs; imposing a curfew; supervision by a community corrections officer; or community service. The Court’s decision to impose a Conditional Release Order Whilst the Court found that our client was of impeccable character and had shown immense remorse since the accident, the Court decided that given the loss of life the sentencing principles required the Court to impose a penalty on the RTBU member. Accordingly, the Court imposed a CRO (as opposed to the more serious penalty of a CCO), with conviction and a 12 month licence suspension. Conclusion In tragic circumstances, Hall Payne Lawyers and our client, with the support of his Union, the RTBU, developed and executed a strategy to obtain him a favourable outcome. This case demonstrates the importance of: challenging the factual basis on which charges are laid; making persuasive submissions to the DPP when negotiating a plea; and providing detailed material regarding a defendant’s good character. Anyone can make a mistake with tragic and unforeseen outcomes. When seeking to defend a traffic charge or have it dismissed, a considered legal strategy is required to ensure the Court is persuaded to impose an appropriate outcome. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/june/serious-traffic-charges-win/ Mon, 13 June 2022 00:00:00 Hall Payne Lawyers successfully represented the RTBU and its members in Federal Court proceedings against Transit Systems Pty Ltd for failing to pass on annual wage increases. This decision sets an important precedent for the process of calculating the quantum of underpayment of wages in circumstances where the employer has clearly contravened the law, and also for the serious penalties that will be imposed on an employer in those circumstances. The Federal Court liability decision In November 2021, the Federal Court decided Transit Systems, a bus operator in Sydney’s south and inner west , had systematically underpaid its employees since 1 July 2019. This case was notable for two reasons. First, the extent of Transit Systems' underpayment was significant. It affected a very large number of employees and arose from the contravention of successive annual wage review determinations of the Fair Work Commission. Second, to facilitate payment of the unpaid wages, the Court accepted our suggestion and ordered Transit Systems to pay the costs of an independent accountant tasked with investigating and calculating the quantum of underpaid wages in respect of each relevant employee. This was a relatively novel order which we hope can be utilised in similar matters in the future. In complex cases like this one, the cost of calculating wages owed is often substantial. If this cost is borne by the applicant (often the worker), as it too often is, the cost can deplete the potential compensation that the employee might be entitled to. Employers who underpay their employees in our view should absolutely be made to cover these costs. When state system employees are transferred to a national system employer In 2018, Transit Systems acquired the right to operate certain Sydney bus routes from the public State Transit Authority. The acquisition involved a transfer of business, including the re-employment by Transit Systems of around 1100 workers previously employed by State Transit Authority. To prevent gaps from emerging in the law, when state employees (such as those employed by the State Transit Authority) are transferred to a national system employer (such as Transit Systems), the Fair Work Act 2009 (Cth) ‘copies’ the State award or instrument that previously applied, so that it applies to the new employment arrangements. This means the transfer of business from the public State Transit Authority to Transit Systems (a private operator) brought the relevant employees within the ambit of the federal ‘Fair Work’ system. Transit systems failed to pass on Fair Work Commission annual wage increases In this case, the employees were previously covered by a State award when they were employed by the State Transit Authority. The State award provided for its own scheme of wage increases between 2018 and 2020.  Critically, however, the Federal Court determined that the State award did not curtail the Fair Work Commission’s express power to vary ‘copied’ State awards under s.768AW(c) of Fair Work Act . Consequently, when the Fair Work Commission determined each year that its annual wage review determinations would thereafter apply to all ‘copied’ State awards, the Transit Systems copied State award became subject to the increases those determinations provided. Despite this, between 2018 and 2021, Transit Systems only raised wages according to the scheme specified in the original State award. Transit Systems did not pass on any of the wage increases required by the Fair Work Commission. After the last of the wage increases specified in the original State award in 2020, Transit Systems did not then apply annual wage increases as determined by the Fair Work Commission but rather, they simply stopped providing wage increases to its employees altogether. When the RTBU approached Transit Systems and sought for the latest Fair Work Commission increase to be paid, Transit Systems initially agreed but then later changed its position. It then delayed for a number of weeks and subsequently offered to pay the increase but as a part of bargaining for an enterprise agreement . For obvious reasons, this was not acceptable to the RTBU. They were not prepared to bargain with an employer about a wage increase that was legally required to be paid. The decision regarding compensation and penalties for the underpayment of wages Following the November liability judgment that Transit Systems had underpaid its employees since 1 July 2019, the matter was then referred to the external accountant to conduct an audit of the underpayments for the remaining years. In the penalty judgment , Rares J of the Federal Court, in considering the circumstances of Transit System’s contravening conduct, noted that it: “took a deliberate stance to ignore or postpone fulfilling its obligations ” under the Fair Work Act , and that it “ acted to avoid immediately honouring its legal obligations so as to see if it could exploit the industrial situation to its advantage ”. Accordingly, the Court determined that the conduct of Transit Systems was “ unacceptable and must be attended by an appropriately severe penalty” . The Court imposed penalties on Transit Systems totalling $181,000 for its contraventions of the Fair Work Act arising from its failure to pass on successive wage increases to its workforce. Those penalties are required to be paid to the RTBU as the prosecutor of the case. Transit Systems has now applied to the Fair Work Commission to seek for it to intervene and retrospectively vary the 2018/19 and 2019/20 minimum wage increases such that they don’t apply to the copied State award. This is being opposed by the RTBU. Regardless, the Federal Court’s decision is a momentous victory for the RTBU and the underpaid employees of Transit Systems. It demonstrates that where an employer engages in underpayments of its workers and continues to ignore its legal obligations and/or seeks to use them to their advantage, they can expect to receive a very significant penalty. It also shows the value to employees in belonging to a strong union like the RTBU, which brought the case on their behalf and ensured that justice was done. Get help from an employment lawyer If you believe you have been underpaid or you’re looking for advice in relation to any issues you’re having in the workplace, contact one of our award-winning employment lawyers for advice and guidance. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Today’s article is written by our employment law team members: Joe Kennedy – Principal Madeleine O’Brien – Solicitor Billy McEvoy – Research Clerk https://www.hallpayne.com.au/blog/rss/blog/2022/june/rtbu-wages-underpayment-win/ Mon, 06 June 2022 00:00:00 A 5-member Full Bench of the Fair Work Commission (‘the FWC’) has addressed the relationship between demotion and dismissal under the Fair Work Act (‘the FW Act’) in a recent appeal determination. In NSW Trains v Todd James [2022] FWCFB 55 (‘ Todd James’ ), the Full Bench overturned a decision of DP Saunders, who in a 2021 decision held that demotions amount to dismissal where employment continues with significant reductions in remuneration or duties. Effect of demotion on the employment contract Rejecting DP Saunders’ approach (that is, how he arrived at his decision), the Full Bench focused instead on the effect that demotion has on the employment contract. The majority concluded that, where the employer has repudiated the contract by demoting the employee, and the employee accepts this repudiation thereby ending the contract, the demotion amounts to dismissal within the meaning of the FW Act. This aspect of the decision arguably diminishes the protections offered to employees in relation to demotion. Repudiation of the employment contract requires fundamental changes to the contractual arrangements between the employer and employee and is probably a higher bar than ‘significant reductions in remuneration or duties’. Moreover, where a demotion is authorised under statute or an EBA ,  it will usually not amount to dismissal, as was ultimately true in Todd James. In addition, the contract will only end where the repudiation has been ‘accepted’ by the other party; in this case, the worker. This means that an employee who does not object to their demotion is presumed to have accepted it and will not have the advantage of the unfair dismissal protections . However, this decision has broader significance too. In reaching this conclusion, the Full Bench affirmed that ‘termination of employment’ refers to either the termination of the employment contract or the employment relationship. Or both. The ‘termination of employment’ phrase appears throughout the FW Act in a range of contexts, giving this decision relevance well beyond demotion and even unfair dismissal. In addition, Todd James is now the latest decision in a series of somewhat opposing views on this point. So, has the Full Bench finally put this issue to bed? Background and first instance decision Mr Todd James was employed as a ‘shift manager’ with NSW Trains. As a result of misconduct, Mr James’ employee classification was lowered, and his gross annual pay was reduced from $141,442 to $127,569. His duties and his place of work did not change. The demotion also occurred in accordance with the relevant EBA and transport regulations. Mr James brought an unfair dismissal application, in which he claimed that his demotion amounted to a dismissal for the purposes of s. 386 of the FW Act. The Fair Work Commission determined that Mr James had been dismissed. Pivotal to this decision was the conclusion that the phrase ‘termination of employment’ means termination of the employment relationship and not termination of the employment contract. Surveying the authorities, DP Saunders revealed the confusion on this issue emerging from a history of disharmonious case law and shifts in legislative authority dating back to the 1980s. The DP ultimately reconciled these differences in favour of Khayam v Navitas [2017] FWCFB 162 (‘ Navitas ’), which appeared to provide support for the exclusive ‘employment relationship’ approach. For more about this decision, and what it meant at the time, you can read our article “Demotion involving reduction in pay and no change in role constitutes dismissal”. Appeal On appeal to the Full Bench, the majority (Easton DP dissenting) rejected DP Saunders’ interpretation, finding that termination of either the employment contract or the employment relationship (or both) amounts to ‘termination of employment’. This principle was articulated in Charlton v Eastern Airlines (2006) 154 IR 239 (‘ Charlton ’), which the majority identified as the key authority on this issue. The majority explained that the contrary authority, Department of Justice v Lunn (2006) 158 IR 410 was in fact a misapplication of Charlton and should therefore be disregarded. Apparent contradictions between Charlton and the High Court decision Visscher v Giudice [2009] 239 CLR 361 w ere, in the majority’s view, attributable to factual differences between the two. The majority engaged only minimally with Navitas , despite its deciding influence in the decision under appeal. The case was not rejected, nor distinguished. Nor was it shown to be consistent with Charlton . The majority acknowledged that Saunders DP had based his decision primarily on Navitas . And yet, whether or how Navitas had informed the DP’s errors was never explained. This omission is doubly curious alongside the dissent of Easton DP, who agreed with Saunders DP that ‘termination of employment’ means termination of the employment relationship alone. Like Saunders DP, Easton DP based his view on the conclusions in Navitas, which he described as ‘correct and … directly applicable to demotions’. DP Easton extracted DP Colman’s clearly expressed view when handing down his decision in Navitas: “there is no textual or other basis to read termination of ‘employment’ in s 386(1) as a reference to termination of the contract of employment”. This passage was not addressed by the majority in Todd James , but it is difficult to reconcile with the position in Charlton . The majority’s silence can perhaps only be explained by the position of the parties, who both accepted the dual meaning of ‘termination of employment’ that was ultimately adopted by the majority. The ACTU, which made submissions as a third party, attempted to argue that Navitas : ‘is better understood as suggesting that the termination of a contract will not necessarily lead to a dismissal where the persisting employment relationship remains on foot and unchanged, not that contract termination is irrelevant.’ It is unclear whether this submission was accepted by the majority. What now for the interpretation of ‘termination of employment’? Four members of the FWC, including President Justice Ross, have lent their influential voices to the law on this important issue. They have endorsed the broader definition of ‘termination of employment’, which in some ways is a win for employees, as it expands the scope of the unfair dismissal regime. There is a strong argument that this interpretation is also the most coherent, especially in the context of unfair dismissal claims, which contemplate some types of dismissal, such as demotion, that are consistent with a continuing employment relationship. As even Easton DP concedes in his dissent, the majority interpretation is ‘more readily reconcilable’ with this aspect of the regime. However, by failing to really tackle Navitas and DP Saunders’ primary decision head on, the majority has left some scope for doubt and confusion. Although their position is clear, the majority has provided little in the way of supporting reasoning. And they have failed to fully and convincingly smooth out the differences in the case law authorities. DP Colman’s criticism of Charlton as lacking ‘textual or other basis’ might apply equally well to the decision of Todd James . This is an issue that goes beyond the unfair dismissal scheme and is relevant, for example, to notice of termination and redundancy pay obligations. By failing to deal conclusively with Navitas , the majority has allowed uncertainty to endure. Get help from an employment lawyer If you’ve been unfairly dismissed or experienced any other work-related issues including contract disputes, award or EBA breaches, discrimination, demotion, leave entitlement concerns etc, our experienced employment lawyers can assist. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/may/clarifying-termination-of-employment/ Mon, 30 May 2022 00:00:00 Minimum wages for seasonal workers engaged in fruit picking (and other produce picking) apply from April 2022 after the Full Bench of the Fair Work Commission (the Commission ) handed down a decision, approving variations to the Horticulture Award 2020 (the Award ). From 28 April 2022, workers under the Award will be paid a minimum hourly rate of $25.41 (indexed annually). Background On 15 December 2020, the Australian Workers’ Union ( AWU ) made an application to vary the Award. The application sought to vary clause 15.2 that dealt with piece rates. Piece rates are where a person is paid according to how much produce they pick. The more they pick, the more they earn. The clause, as it stood prior to April 2022, allowed an employer and employee to enter into an agreement for the employee to be paid a piece rate only. The proposed variation provides a floor for the earnings for pieceworkers. An employee working under a piecework agreement must be paid, for each hour of work, at least the minimum rate payable for the employee’s classification and the type of employment, as scheduled in the Award. The proposal also sought to require an employer to keep a record of all hours worked by a pieceworker to ensure that the requirement to pay a pieceworker at least the minimum hourly rate is capable of being monitored and enforced. November 2021 Fair Work Commission decision On 3 November 2021, the Commission handed down a decision, Re Horticulture Award 2020 [2021] FWCFB 5554 , ( November 2021 Decision ) accepting that the pieceworker provisions in the Award were not fit for purpose. The Commission provisionally approved the application by the AWU to vary the pieceworker provisions of the Award. The Commission was satisfied that the variation was necessary to ensure the Award achieves the modern awards objective . The Commission issued directions to provide interested parties with an opportunity to make submissions on the proposed variation determination. February 2022 Fair Work Commission decision On 1 February 2022, the Commission handed down their final decision, Australian Workers Union [2022] FWCFB 4 , approving the variations to the Award, inserting, among other things, a minimum wage floor and time recording provisions. Some aspects of the November 2021 Decision were challenged. One challenge concerned the extent to which a minimum wage floor would impact productivity. The Commission invited submissions from members of the agriculture industry who opposed the changes making assertions that the: “ introduction of a minimum wage floor will disincentivise horticulture workers and productive workers will leave the industry.” The Commission was not persuaded by these submissions finding: “ [t]hese assertions are speculative and unsupported by any evidence.” The Commission noted that similar arguments had been raised in the earlier proceedings from lay witnesses who expressed the opinion that the introduction of a minimum wage floor would: “demotivate underperforming employees from lifting their performance and ‘disincentivise’ pieceworkers currently earning more than the minimum award rate”. The Commission noted that they had accepted the first assertion at [359] of the November 2021 Decision, particularly in respect of underperforming employees and that they can be managed by, for example, setting proficiency targets. The Commission explained they had not accepted the second assertion. It was noted that there was a consistent theme in the employer evidence that piecework is an attractive option for workers because it provides an opportunity to earn substantially more than the minimum hourly rate. The Commission reiterated its conclusion from the November 2021 Decision: “[w]e accept that appropriately set pieceworker rates can provide an incentive for workers to increase their output, as their earnings will increase. We are not persuaded that introducing a minimum wage floor will ‘disincentivise’ pieceworkers currently earning more than the minimum award rate. It seems to us that such an outcome is inherently unlikely. ” The Commission concluded that nothing in the more recent submissions had persuaded them to depart from the conclusion made in the November 2021 Decision. There were also challenges to the finding in the November 2021 Decision in respect of non-compliance with cl. 15.2 (the clause dealing with piece rates). The notion of non-compliance was “totally” rejected by a number of submissions. Sunny Ridge, a strawberry farm, submitted that: “The Summary of Decision complains that there is widespread non-compliance with clause 15.2 of the Horticulture Award. There is no evidence to suggest that the larger firms are guilty of exploitation.” They continued noting that there are requirements for inspections and audits and they “cannot afford to cut corners”. After consideration of the subsequent submissions, the Commission concluded that they were not persuaded to depart from the earlier findings in the November 2021 Decision. Key takeaways regarding minimum wages for fruit pickers The key takeaways from the variation to the Award are: Employees can still be paid a piece rate for performing the work. However, the piece rate must allow for the average competent worker to earn the equivalent of at least 15% above the minimum hourly rate for the employee’s classification. “Minimum Wage Guarantee”: workers paid a piece rate will be guaranteed a minimum wage for each day they work. Employers must record the hours worked by a pieceworker and the piece rates applied. You can read more detailed information about the new piecework rules on the Fair Work Ombudsman’s website here . Seasonal workers – important things to know about your workplace entitlements Temporary foreign workers (including backpackers) make up a large portion of the Australian workforce. These workers are more vulnerable to exploitation than local workers as many do not know their rights and protections under Australian laws. Seasonal workers have the same minimum rights and protections as other employees in Australia under the National Employment Standards. There may also be entitlements available under the Award or any registered agreement individual workers may be covered under. Get help from an employment lawyer If you feel your workplace rights and entitlements are being breached, you should speak with your Union in the first instance or with a lawyer experienced in employment law. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/may/farm-workers-minimum-wage/ Mon, 23 May 2022 00:00:00 If you are charged with a criminal offence in Queensland and you elect to plead guilty or are found guilty following a trial , the Court will sentence you for the offence. At the time of sentencing, you or your lawyer will have an opportunity to make submissions in respect of the sentence that the Court is about to impose on you. In the Magistrates Court of Queensland, when making sentencing submissions, it is common practice for the defendant to tender mitigating documents to the Court. Mitigating documents can come in a variety of forms. Character references In most circumstances, it is appropriate to obtain and tender at least one character reference. Character references from employers are particularly valuable as they are able to demonstrate to the Court that you are a productive member of society. In order to be used at a sentencing hearing in the Magistrates Court of Queensland, at a minimum, the character reference must: be addressed to ‘The Presiding Magistrate’; acknowledge that the person writing the reference is aware of the offences that you have been charged with, and that you are pleading guilty to those offences; explain the capacity in which the referee knows you (e.g., employer or family friend) and how long they have known you; not make any statements that are misleading or inaccurate (e.g., if a person has a history of committing drink driving, it would be misleading for the referee to say that the offence of drink driving was out of character for you); and be signed and dated. The character reference should of course also say positive things that are tailored to you and your particular circumstances. For example, it might explain that you are ‘hard-working’, or that you have expressed remorse to the referee about your offending.  Counselling In many cases, it is appropriate for a person to seek counselling about their offending. For example, a person charged with assault might seek anger management counselling. If you do engage with such services, you should request that they provide you with a letter that is addressed to the Court that explains the services that they have provided to you. Apologies In some circumstances, where you intend to plead guilty, it may be appropriate for you to prepare a written apology to your victim. For example, if you are charged with assault, you may prepare a written apology for the victim of the assault. If you intend to provide a written apology to a victim, you must ensure that doing so does not cause distress to the victim and/or breach any bail conditions that you may have which might, for example, prohibit you from contacting the victim. The safest way to convey an apology is to provide it to the prosecution to pass on to the victim. Educational programs You may wish to consider undertaking an educational program designed to educate you about your offending. However, bear in mind that there will not always be an educational program that is relevant to you or your offending. One example of an educational program that is widely respected in Queensland in relation to traffic offending, is the Queensland Traffic Offenders Program ( QTOP ). If you are charged with a traffic offence such as drink-driving, you may wish to undertake an educational program such as QTOP so that, upon completion of the educational program, you can tender a copy of the certificate of completion to the Court during sentencing. Mitigating materials for drug offences If you are charged with a drug-related offence, you may wish to engage with a service such as Lives Lived Well who will be able to assist you with your drug abuse issues. They may also be able to provide a letter addressed to the Court that explains, for example, that you are currently receiving support in relation to your drug abuse issues. You may also wish to engage in regular drug testing which demonstrates that, for a period of time leading up to and including the date of sentencing, you are no longer using the drug to which the charges against you relate (or any other dangerous drug). Medical documents If you have a medical condition that is relevant to your offending, it may be appropriate to obtain a letter or report from a doctor or other appropriate health practitioner. Where you should obtain the letter or report from will depend on the seriousness of the offending and the complexity of the medical condition. For example, in some simple cases, a letter from a general practitioner will suffice. However, in other more serious or complex cases, a report from a specialist such as a psychiatrist may be necessary. The purpose of the letter or report may be to explain the context of the offending or to demonstrate that you are seeking appropriate treatment to address the underlying issues that led to your offending occurring in the first place. Get help If you intend to tender mitigating documents such as those described above at a sentencing hearing, you should ensure that you have relevant and well-prepared documents and that you do not leave it to the last minute to obtain these documents. The  criminal law team  at Hall Payne Lawyers is well equipped to provide you with advice about a criminal or traffic charge, including the impacts that any charge may have on your employment. If you are currently facing a criminal or traffic charge, you should contact our office and arrange an appointment with a member of our team. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: Does my criminal record stay with me forever? No conviction recorded – options for keeping your criminal record clean A police officer gave me a Notice to Appear. What does that mean? https://www.hallpayne.com.au/blog/rss/blog/2022/may/sentencing-hearings/ Mon, 16 May 2022 00:00:00 If you’re in receipt of compensation or benefits as a result of a personal injury, your online behaviour, including your behaviour on social media platforms, can have an impact on how your claim is assessed by the insurance company. This could be the case for a: workers compensation claim ; road accident claim ; public liability claim ; medical negligence claim ; TPD or income protection claim ; or any other type of personal injury compensation claim. This article looks at how social media activity can negatively impact your personal injury claim. Be careful how you use your social media accounts during a compensation claim In this technological age of social media and smartphones, it is common to regularly post on social media regarding your activities. These platforms allow quick and easy connection with our friends and family, and the sites display photos and your status, allowing individuals to put their lives on show for everyone to see (assuming your privacy settings are minimal). Does your social media presence reflect your claimed injury or illness? Not all actions on social media are as private as you might first assume. Photos and/or words posted online that are inconsistent with the claimed effect of physical or psychological injuries may undermine a personal injury claim. You don't even have to be the one posting the photos. Sometimes, you may not even realise that a friend has posted a photo with you in it. Posting about your daily activities may undermine your claim, even if you think that what you are posting is harmless or is in no way related to your claim. Can your social media posts be used against you in a personal injury claim? The short answer is, yes. Insurers and/or other parties involved in your compensation claim will often actively investigate and look for social media content about you, among other surveillance initiatives they may engage. If you pursue a common law damages claim, social media posts may even be disclosable in certain instances. For this reason, it is very important that you act in good faith at all times in respect of your injuries and their impact on you. Get help from a personal injury lawyer If you’re having any issues with a personal injury compensation claim, including investigations by the insurance company related to the accuracy and integrity of your claim, our personal injury lawyers across Australia are here to provide advice and assistance. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: Can I quit my job while on workers compensation? I’ve suffered a psychological injury at work. What do I do? Social media and work – employees be warned https://www.hallpayne.com.au/blog/rss/blog/2022/may/social-media-and-compensation-claims/ Mon, 09 May 2022 00:00:00 You have your learner’s permit and look forward to getting your licence and being able to drive unsupervised. But how does a red and a green P plate restrict you in Queensland? It is imperative that, as a new driver, you are aware of the numerous restrictions that will apply, even when you have your provisional licence. What is a ‘P’ plate licence? A ‘P Plater’ is a provisional licence holder. In Queensland, a provisional licence holder under 25 years of age commences on a ‘Red P’ or ‘P1’ and ‘graduates’ to a ‘Green P’ or ‘P2’ before obtaining an open licence. To get a red P plate licence you must have: had your learner plates for at least 12 months; be at least 17 years old; have recorded 100 hours of driving, including 10 hours of night driving, in your learner logbook; submit your logbook; and pass the practical test. If you are 25 or older, you don’t need to complete a logbook and you’ll get your green P plate licence upon passing the practical test. To get your green P plates you must: be 18 years old and: have had your red P plate licence for a least 12 months; and pass the Hazard Perception Test; OR Be 25 years or older and: have had your learner licence (L plate) for at least 12 months; and have been at least 25 years old when you passed your practical test. Restrictions imposed on P plate licences Both red and green P plate licence holders must display their applicable coloured plates on the front and back of the vehicle and not have any alcohol in their system when driving. Limits on carrying passengers If you hold a red P plate licence, are under 25 years of age and are driving between 11.00 pm and 5.00 am, you can only carry one passenger under the age of 21 who is not an immediate family member. An immediate family member includes a: brother or sister of the driver; stepbrother or stepsister of the driver; child, stepchild, foster child or ward of the driver; spouse (including de facto partner) of the driver; stepparent of the driver; guardian of the driver; approved carer of the driver (if the driver is a child); child, stepchild, foster child or ward of an approved carer of the driver (if the driver is a child); foster child or ward of a parent or stepparent of the driver; child, stepchild, foster child or ward of a guardian of the driver; spouse (including de facto partner) of a grandparent of the driver; or a person who is regarded under Aboriginal tradition or Torres Strait Islander custom to be a child of the driver (if the driver is an Aboriginal person or a Torres Strait Islander). Mobile phones Whilst all drivers are prohibited from holding a mobile phone in their hand or having it rest on or touch any part of their body whilst driving , red P plate licence holders under 25 years of age must not use a mobile phone at all including via: hands-free kits; bluetooth accessories; wireless headsets; or a phone’s loudspeaker function. Additionally, passengers are prohibited from using a phone on loudspeaker while a red P plate holder is driving. An individual fine applies to the passenger in those circumstances. Green P plate licence holders and red P plate licence holders over 25 years of age are allowed hands-free use of a mobile phone. For example, they can use a mobile phone in a cradle attached to the vehicle. This can include: to accept calls; use navigation apps; and accept/finish a trip as a rideshare driver. High-powered vehicle restrictions High-powered (performance) vehicle restrictions apply to both red and green P plate licence holders under the age of 25 years. These restrictions also apply if you have completed a period of being disqualified from holding a red or green P plate probationary licence and you were under 25 at the time of the offence. These restrictions apply for the duration of the probationary period, regardless of your age. Get help If you’ve been fined by police and you need advice or assistance, you should contact the criminal law team at Hall Payne Lawyers. All our criminal lawyers are well equipped to give you the necessary advice in relation to any traffic offences. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: Restricted work drivers’ licences in Queensland No conviction recorded – options for keeping your criminal record clean Queensland Government cracks down on drink driving https://www.hallpayne.com.au/blog/rss/blog/2022/may/provisional-licence-restrictions/ Mon, 02 May 2022 00:00:00 In simple terms, it is legal for your boss to monitor and track your work-related tasks and performance while at work; whether working from home or on site. However, employers do not have unrestricted rights to conduct surveillance on an employee’s use of the employer’s (or the employee’s) communication devices. An employer might deploy surveillance devices for justifiable purposes such as: to protect assets; ensure employee safety; detect fraud or theft; monitor quality control; and monitor employee behaviour. However, these objectives need to be balanced against the employees’ and/or customers’ right to privacy. There's no general right to privacy in Australia. Instead, there's a complicated web of federal, state and territory laws. Employee monitoring is also subject to these laws and the various rules that regulate surveillance of employees can be very complicated. Various forms of employee surveillance and monitoring have been used in physical workplaces for many years. Now, with the effects of the pandemic, there is an increase in people working from home. Anecdotal evidence suggests a great number of employers are increasingly looking to use technology to check employees and to install surveillance tools which are now also reaching into homes. The potential for this activity to grow over the coming years is something all workers who may work from home, need to be aware of. Industrial awards/agreements , I'veand work policies and procedures may contain provisions relating to workplace surveillance and should be carefully checked before surveillance is commenced or any adverse action is taken against an employee because of information collected through monitoring or surveillance. How do employers carry out surveillance? Employers use a range of technologies to monitor how, when and where their employees are working, including: CCTV cameras; GPS tracking; computer applications that monitor employee use of technology such as computers and mobile phones; devices which measure biometrics (eg, fingerprinting or facial recognition software); mobile phone “location tracking” applications; and Technologies for fleet management – eg, work vehicles that are fitted with speed, GPS and direction capturing software. Federal laws for surveillance in the workplace Unfortunately, there is no consistent set of laws operating across jurisdictions in Australia which regulate monitoring and surveillance of the workplace. At the Commonwealth level, the  Telecommunication (Interception) Act 1979  (Cth) prohibits any person from intercepting a communication passing over a telecommunications system. The  Privacy Act 1988  (Cth) also has some application where the information being collected, used or disclosed is personal information. Otherwise, for the most part, surveillance in the private sector workplace is regulated by the industrial laws of each state and territory. State and territory-based surveillance laws currently in place The most comprehensive Australian laws which specifically regulate workplace surveillance are in New South Wales and the Australian Capital Territory. In NSW, it is the  Workplace Surveillance Act 2005 (NSW) and in the ACT, it is the  Workplace Privacy Act 2011 (ACT) . In NSW, the Workplace Surveillance Act classifies all overt surveillance as unlawful unless employers provide 14 days’ notice before the surveillance begins. Furthermore, the overt surveillance notice has to contain details explaining what equipment will be tracking the employees, when the surveillance occurs and any other applicable details. In the Australian Capital Territory, employers who plan on using a surveillance method covered by the Workplace Privacy Act 2011 (ACT) , must first give 14 days' written notice of the intended surveillance to any affected workers. The notice must address: details of the planned surveillance; and invite workers to consult with the employer as to the proposed method for conducting the surveillance. In the Australian Capital Territory, regulation of listening devices is through the  Listening Devices Act 1992 (ACT) . The laws in NSW and the ACT limit the use of surveillance devices in the workplace by prohibiting employers from carrying out or causing to be carried out, any surveillance of an employee in a: change room; toilet facility; or shower or bathing facility. The ACT goes further to prohibit the use of surveillance devices in the workplace: parent or nursing rooms; prayer rooms; sick bays; and first aid rooms. Disclosure and use of surveillance records is specifically regulated in NSW and the ACT. South Australia, Tasmania, Western Australia, the Northern Territory and Queensland do not currently have specific workplace surveillance laws in place. Conclusion The use of surveillance in the workplace has legitimate benefits to both workers and employers and can be useful in assisting with compliance with workplace laws. However, employers and workers need to be aware of the differing laws across the states and territories as well as any other agreed or contractual restrictions on the use of employee surveillance tools which may be specific to their workplace. Employers need to be careful when making rules about when surveillance commences and concludes. For instance, it may appear discriminatory if the employer only chooses to surveil some employees and not others. For example, they may choose to engage more surveillance of employees working from home as opposed to those working on site. Employers should be transparent about the introduction and use of surveillance. Get help from an employment lawyer If you have any concerns about employee surveillance and monitoring programs that have been introduced at your workplace, please contact us for advice and assistance. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: Social media and work – employees be warned Do I have to tell my employer I am pregnant? Work from home request refused by employer - decision upheld by QIRC https://www.hallpayne.com.au/blog/rss/blog/2022/april/surveillance-device-monitoring/ Sun, 24 April 2022 00:00:00 Hall Payne Lawyers recently successfully represented a First Nations worker who had suffered a serious psychological injury after being the victim of ongoing, nasty racial abuse from colleagues. A workers compensation claim was initially accepted then subsequently denied before finally being won on appeal at the Northern Territory Work Health Court. Background Our client was a switchboard operator at a regional hospital in the Northern Territory. His claim was under the Northern Territory Workers’ Compensation Legislation. Our client, a First Nations person, was subjected to hideous racial abuse from co-workers from his first day. This abuse included: reviling his deceased grandmother who was a member of the Stolen Generation; mocking the colour of his skin; calling him a “sook”, “stupid” and an “idiot”; and playing a telephone prank where staff members invented a medical emergency before terminating the call. The staff made our client believe that he had caused the death of a mother and baby despite having no control of the incident. This was done solely to upset and humiliate him. Our client suffered a serious psychological injury because of this abuse. He was unable to return to work. After initially accepting his claim, the insurer ceased it after relying on one doctor’s medical opinion that his psychological injury was not caused by the abuse. The insurer also argued that they were seduced into accepting the claim because of misleading information from our client about his medical history. We appealed the decision in a four-day trial before the Work Health Court. Work Health Court appeal won The Work Health Court found in our client’s favour, that his psychological injury was caused by the abuse and that he was unable to work. The Court rejected the insurer’s allegation that our client had been fraudulent, finding that our client’s vulnerability, limited literacy and lack of insight into his pre-injury behaviour made it difficult for him to complete forms and provide his medical history to the insurer. The Court was unable to find that our client was suffering from a psychological injury before working at the hospital because of the lack of medical history. The result This win means that our client is entitled to all his compensation benefits that had previously been cut off and most of his legal costs. Hall Payne Lawyers was proud to successfully represent this vulnerable and deserving client who’d been the victim of hideous behaviour by his employer. The win and compensation will allow him to receive necessary medical treatment and finally move on with his life. Get help from a personal injury lawyer If you’ve had a workplace injury in the Northern Territory and you’re having difficulty: lodging your claim; dealing with the insurer; appealing a rejected claim; or any other issue regarding your NT workers compensation claim, contact a Hall Payne NT workers compensation for advice, guidance and assistance. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Looking for more Northern Territory articles? You may like to read: Win for emergency workers with PTSD claims in the NT Workers compensation win for FIFO worker in the NT Win for Northern Territory cricketer at sports law tribunal https://www.hallpayne.com.au/blog/rss/blog/2022/april/nt-workers-comp-win/ Mon, 18 April 2022 00:00:00 In March 2022, Hall Payne Lawyers represented a member of the Rail, Tram and Bus Union ( RTBU ) in relation to a charge of disobeying traffic rules in New South Wales. On 22 March 2022, the Court dismissed the charge, despite the RTBU member pleading guilty. Background In 2021, the RTBU member, while operating their bus, accidentally drove past a “NO ENTRY” sign. A police officer observed this and charged the driver. The penalty for this offence was 2 demerit points and a maximum of $275.00. Despite not losing any demerit points between 2009 and 2019, the driver had lost demerit points in 2019 and 2020. A loss of a further two points would have resulted in their licence being suspended for several months. A suspended licence would have shattered our client. As the primary bread-winner, they would not be able to provide for their family. They would also be unable to transport two disabled family members to medical appointments and run errands for their family (which they had sole responsibility for). Our defence strategy It was our case that the Court should dismiss the charge under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 . This is a power available to the Court to exercise when it would be inexpedient to impose a conviction due to the circumstances of the case. To carry out this strategy, we ensured that the member had completed the traffic offender’s intervention program and had obtained persuasive references. We relied on the following circumstances: The offence was a simple human error; The offence was not in “peak hour”; Our client was not driving their usual route and had not been on the road where the offence occurred before; Our client pleaded guilty at their first opportunity and is of very good character; and The driver was remorseful and a conviction would be shattering for them, both in relation to a loss of work and in relation to supporting their family. The Court’s decision to dismiss the charge The Court placed considerable weight on strong character references from the RTBU member’s supervisor and the president of the RTBU. Significant weight was also given to our client’s remorse and commitment to be more alert when driving. Balancing the nature of the offence with the harsh impact of a conviction, the Court found that a conviction would be too harsh an outcome for our client. Accordingly, the charge was dismissed by the Court. No penalty was imposed on the RTBU Member. Conclusion This win is a significant one, not only for this client and other RTBU members but also for our clients more broadly. Anyone can make a mistake and this outcome demonstrates that workers who plead guilty to an offence in Court still have a lawful avenue to potentially avoid a career-threatening penalty; in this case, the suspension of a driver’s licence. When seeking to defend a traffic charge or have it dismissed, what is required is a considered legal strategy to ensure the Court is persuaded that this is the appropriate outcome. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/april/traffic-charge-dismissed/ Mon, 11 April 2022 00:00:00 In this article, we explore a case where a worker’s initial claim for workers compensation was denied by WorkCover Queensland due to the employer’s actions being considered “reasonable management action”. Upon application to Workers’ Compensation Regulator, that original decision was confirmed. The worker appealed to the Queensland Industrial Relations Tribunal (“QIRC”) who overturned the prior decisions and the workers’ compensation claim was ultimately accepted.  “Reasonable management action” precludes workers' compensation claim In Queensland, an entitlement to workers’ compensation benefits may be excluded if a psychiatric or psychological injury arises out of what is termed “reasonable management action” . The workers' compensation legislation, unfortunately, operates to exclude a psychological injury arising out of 'reasonable management action ' by the employer. What is considered 'reasonable management action ' has been the subject of a significant number of Court decisions over the last 25 odd years since it was introduced as a concept into workers' compensation legislation in Queensland. The Queensland Industrial Relations Commission recently had occasion again to consider a case which involved a rejected application for workers’ compensation due to 'reasonable management action' . In Scott v Workers' Compensation Regulator [2021] QIRC 110 , Mr Scott as the appellant, submitted to the QIRC that the redundancy and termination of his employment was made in an unfair and unreasonable way, causing psychological injury. He suffered a major depressive disorder as a result of the ‘surprise redundancy’, and his access to compensation benefits turned on whether his injury was excluded by the operation of section 32(5) of the Workers’ Compensation and Rehabilitation Act 2003 . This section, amongst other exclusions, precludes a claim for “ psychiatric or psychological disorder arising out of, or in the course of… reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment... ” WorkCover Queensland rejects workers’ compensation claim Mr Scott had worked for his employer for 15 years. Shortly after returning to work following a period of leave, Mr Scott was called into a meeting with management and was informed his employment had been made redundant effective immediately. Mr Scott subsequently submitted an application for workers’ compensation which was rejected by the insurer, WorkCover Queensland, on the grounds that he suffered an injury arising out of ‘ reasonable management action ’, and therefore his claim was not one for acceptance. Mr Scott submitted an Application for Review to the Workers’ Compensation Regulator (an independent organisation that reviews the insurer’s decisions), which confirmed WorkCover Queensland’s decision to deny his claim. Mr Scott then appealed the Regulator’s decision to the QIRC. The QIRC decision The QIRC considered the reasonableness of management action in the context of the termination and redundancy; in particular, the employer’s failure to consult with Mr Scott before a definitive decision was made. The manner in which management communicated the redundancy with Mr Scott was also scrutinised, with the Commission noting: A few months prior to the meeting, his supervisor encouraged the belief in Mr Scott that his job was safe, and there was no suspicion of his position being redundant. Mr Scott was not given advanced warning of the redundancy meeting, nor an idea of the purpose of the meeting, and was therefore “blindsided”. He was not given the opportunity to have a support person present at the meeting; and The employer had no redundancy or termination policy. The QIRC noted that the lack of appropriate consultation with Mr Scott meant the redundancy came as a “complete shock” to him, including: the lack of opportunity to be given so much as a general idea of the purpose prior to the meeting taking place; and not being offered a support person to be present. This behaviour by the employer was considered more than just “a mere blemish” of how management conducted themselves. Mr Scott’s statutory claim for workers’ compensation was ultimately accepted, and the QIRC overturned the decisions of WorkCover Queensland and the Workers’ Compensation Regulator. Conclusion The decision is an important win for a deserving worker who sustained a significant psychiatric injury from ill-considered management actions by the employer. The case highlights the requirement for employers to properly consult with employees, certainly at a meeting to discuss possible decisions such as termination and redundancies. Get help from an employment lawyer If you have sustained an injury at work and require advice, or you’ve experienced unfair or unreasonable treatment at work, our highly experienced personal injury and employment law teams can help. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/april/employer-consultation-requirements/ Mon, 04 April 2022 00:00:00 Throughout Australia, many community groups and sporting clubs operate as incorporated associations. In Queensland, for an association to incorporate, it must have at least seven members, be not-for-profit and be located in Queensland. In this article, we explore the benefits of incorporating as an association in Queensland, under the Associations Incorporation Act 1999 (Qld) and provide a guide as to how an association goes about incorporating. What does incorporation mean? Incorporation is a means for establishing a legal identity for your association, club, not-for-profit or other organisation. Incorporated organisations have a structure with a governing body, members and a set of rules or constitution by which they are governed. Seek advice about the right mode of incorporation for you: 1800 659 114 Non-profit bodies have a choice of incorporating via a number of schemes, including as a company limited by guarantee under the Corporations Act 2001 (Cth) or as an incorporated association under State or Territory law. There are advantages and disadvantages to each type of incorporated structure, and it’s important that organisations seek advice as to the right mode of incorporation for them. Why incorporate your association? Incorporating an association provides a mechanism to establish a separate legal identity which affords many benefits, including: entering into contracts or agreements in the name of the association, and not in the name of individual directors; assigning or purchasing property and assets in the name of the association; and limiting the personal liability of its officers and committee members, provided that their actions are carried out in good faith and with due diligence. How to incorporate? There are a number of steps to incorporation Agree to incorporate The members of the organisation must agree to incorporate via a resolution at a general meeting. The resolution needs to be passed by a three-quarters majority of its members who are present and entitled to vote. Choosing a name  There are strict requirements concerning the name of an incorporated association; for example, the name of the incorporated association cannot be easily mistaken for the name of another incorporated association, business name or other registered Australian entity. Similarly, names that may be confused with government agencies and major sporting events may also be prohibited. Approved governing constitution An incorporated association must have a set of rules, also commonly referred to as a constitution, including: the objects (or purpose) of the association; how the association operates; how the management committee operates; and how and when meetings will be convened and conducted. Electing a management committee  The constitution will provide for the election process, including: how members may nominate and be elected to the management committee; the terms of office of committee members; how vacancies between terms of office (commonly known as casual vacancies) will be filled; and circumstances and grounds for the removal of officers. Operating infrastructure  Whilst not a legislated step in the process, associations will need to consider matters of an operational nature and determine the effects on its association. For example: will the association have employees and, if so, enter into contracts of employment and have employment policies; will the association seek tax exemptions; and will the association operate for a charitable purpose and seek government grant funding? Tips for choosing your constitution Your constitution governs the way in which your association operates; from how many meetings a year to who you must accept as a member. An association may consider adopting the standard set of rules published by the Office of Fair Trading, known as the ‘model rules’, as their constitution either in part or full. We have significant experience in the non-profit sector and are specialists in drafting bespoke rules Whilst this aids in registering quickly, associations may find themselves unable to operate as desired when opting for a ‘one-size-fits-all’ constitution. Once the constitution is in place, an association can only amend the rules or adopt the model rules by passing a special resolution at a general meeting or according to the constitution, so it’s important that careful attention is paid the first time. Hall Payne Lawyers has significant experience in the non-profit sector and are specialists in drafting bespoke rules that can be tailored to individually meet the needs and requirements of any association.  Management committee responsibilities Incorporation imposes strict obligations on the officers of the management committee. So, it is important that those officers have a comprehensive understanding of their responsibilities and obligations, to the association and its member, under the Associations Incorporation Act 1999 (Qld). Is incorporation right for your organisation? Incorporation is an attractive option to many nascent organisations, and for good reason. However, an incorporated association is not the ideal legal structure for all associations and organisations, and certain activities require the adoption of a particular legal structure. Whether you’re looking to incorporate or investigate other options for your group, Hall Payne Lawyers have a wealth of experience advising community and sporting groups and not-for-profit organisations. Contact us to arrange a consultation with one of our team. Speak with a lawyer who helps not-for-profit organisations You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/march/incorporating-associations/ Mon, 28 March 2022 00:00:00 It is surprising the number of times buyers overlook the requirement to protect their interest in a property they are purchasing. When a buyer signs an REIQ contract to purchase a property in Queensland, clause 8.1 of the contract provides that the property is at the risk of the buyer from 5:00 pm on the first business day after the contract date. Our initial letters to clients purchasing property always advise them to take out insurance on the property as soon as possible after the contract is fully executed.   Why is property insurance so important as soon as the contract is signed? The most obvious reason why insurance is required would be in the event of unpredictable and severe weather conditions such as hail damage, flooding, fire etc. These unpredictable weather occurrences are becoming more and more common. Therefore, it is fundamental that buyers protect themselves by insuring the property they are purchasing rather than risk ending up with a damaged property either in part or in full, at settlement. In the event of a conditional contract A conditional contract is a contract where there are still conditions which need to be satisfied, such as finance or building and pest etc. For example, consider this scenario: You have signed a conditional contract for purchase of the property but have not arranged for any insurance; Before settlement and when the contract is still conditional, the roof of the property is damaged in a hailstorm; You are now faced with purchasing a property which has suffered hail damage. In this scenario, the vendors may still have insurance on the property. Your conveyancer or solicitor may be able to reach out to the vendors to determine if they would be prepared to rectify the damage caused through the vendor’s own insurance policy. The vendor can maintain their right to refuse the request, but for the sake of ensuring that the contract is not terminated due to building and pest or finance issues, the vendors may agree to make a claim on their insurance policy.      In the event of an unconditional contract An unconditional contract is where all the conditions of the contract such as finance, building and pest etc have been either satisfied or waived.  Using the same example above, if the contract is unconditional, it is slightly more complicated as the vendor now does not have any motive to avoid the contract being terminated. Rather, the vendors can and may issue a notice to settle on the settlement date regardless of the condition of the property. Further, the vendor may have cancelled their insurance policy due to the contract being unconditional. Unit purchases If you are purchasing a unit as part of a Community Title Scheme, the Body Corporate will most likely already have building insurance and therefore this may not apply to you. Nevertheless, you should still consider purchasing contents insurance to ensure the fittings and fixtures in the unit (not covered by building insurance) are also insured. The Property Law Act – property “unfit for occupation” Section 64 of Property Law Act (Qld) 1974 provides that a buyer may revoke a contract and obtain a refund of their deposit if a dwelling is damaged or destroyed either before the settlement date or before the buyer has possession of the property and, as a result of that damage or destruction, the dwelling is now unfit for occupation as a dwelling. This section has effect regardless of any contractual stipulation such as special conditions contained in the contract . The term ‘ unfit for occupation ’ is open for interpretation by a court. Some interpretation of the term ‘ unfit for occupation’ includes:  Damage or destruction so significant that no person would be reasonably expected to live in the dwelling; A dwelling can still be unfit for occupation if only part of the dwelling is destroyed. For example, in a 1-bathroom house where that one bathroom is destroyed, the dwelling would be unfit for occupation as it cannot be used as a dwelling without a bathroom; Temporary damage may not necessarily result in the dwelling being unfit for occupation.; A local government notice such as an enforcement notice may be used as evidence to support a property being unfit for occupation. It is not possible to predict if, when or the extent of damage to a particular property will occur and whether the damage would satisfy the requirements of the Property Law Act , so as to allow the buyer to legally terminate the contract under the Act. Ultimately, in the event of an unconditional contract, if the vendor does not accept that the dwelling is now ‘ unfit for occupation as a dwelling’ and requires the buyer to proceed with the settlement, the buyer’s only option will be to commence proceedings to have the matter determined by the courts.  Hall Payne no longer provides services in property law and conveyancing If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2022/march/buyers-property-insurance/ Mon, 21 March 2022 00:00:00 In the matter of Hair v State of Queensland (Queensland Health) [221] QIRC 422 , a Queensland tribunal has affirmed the decision of a public hospital to refuse an ongoing ‘work from home’ (“WFH”) arrangement for its HR staff, which was introduced during the height of the coronavirus pandemic. The decision to refuse the WFH request was heavily influenced by the hospital’s view that face-to-face contact is a necessary aspect of the employee’s role. Background to the request to work from home The employee is an HR advisor at West Moreton Hinterland Hospital and Health Service. In 2020, the hospital introduced a full-time remote working arrangement, due to the pandemic. In a 2021 performance review, the employee was found to be meeting or exceeding all leadership standards while working fully from home. In September 2021, the employee requested to work remotely from New South Wales, where she wanted to relocate permanently with her partner. The employee was willing to work one week per month in Brisbane and to cover any associated travel costs herself. This request was refused. The hospital explained that full-time remote working was a temporary arrangement connected to the COVID-19 public health emergency. While many of the employee’s functions could be performed remotely, the hospital maintained that certain responsibilities required in-person attendance. This included: interviewing; coaching assistance for clients; giving performance feedback; and assisting with facilitated discussions. The hospital considered that living permanently in NSW would prevent the employee from responding to requests for in-person support in a timely way. In addition, the demands of the role were often unpredictable and could change at short notice. Spending one week a month in Brisbane was therefore not an adequate solution. Although the employee offered to fly up to Brisbane on short notice as needed, the hospital considered that travel time would reduce her productivity and her ability to cover for colleagues. Moreover, the hospital was worried that fluctuating border restrictions and quarantine requirements might hamper the employee’s movements. The hospital also drew attention to the likely impact on the employee’s colleagues. The hospital was concerned that the remote-working arrangement would distribute duties unfairly throughout the team. The hospital was conscious that in-person responsibilities are often more emotionally draining, which might exaggerate this imbalance. Decision The Queensland Industrial Relations Commission upheld the hospital’s decision. The hospital’s workplace policy required that flexible working arrangements are to be ‘equitable’ to the whole work unit and are not to compromise client service and patient care. Commissioner Pidgeon accepted the hospital’s objectives to ‘find the optimal blend of remote and in person working’ as the public health emergency improves. Her Honour recognised the hospital’s view that working remotely from NSW was unviable from a practical and operational perspective. The Commissioner supported the hospital’s ability to determine the operational requirements of the HR advisor role. She observed that this will not always align with the preferences of employees. Moreover, while accepting that the employee had worked effectively from home during the COVID-19 pandemic, the Commissioner observed that the role of HR advisor encompasses ‘complex case management’ and an expectation of in-person availability. The Commissioner concluded that it was therefore fair and reasonable for the hospital to decide that in-person attendance at the hospital will be required in the near future. Significance of the Tribunal decision Workplaces across Australia and the world were forced to adapt dramatically during the early stages of the pandemic. As we emerge, better equipped to combat the challenges of COVID-19, a readjustment towards ‘normality’ is looming.  For employees, this decision demonstrates that not all pandemic-induced work conditions are necessarily permanent. On the issue of working from home, the decision signals tribunal support for limitations around remote working in certain roles, even where employees have proven that they can work capably from home in the past. However, it will always be the case that the circumstances of the position, and the employer, will be central to whether an employee could challenge such a decision. Get help from an employment lawyer As we emerge from the height of restrictions during the pandemic, there are a number of things that have changed, either permanently or temporarily, in workplaces across Australia. If you feel that employment rights and conditions implemented in your workplace due to COVID seem unfair or unreasonable, our award-winning employment lawyers are available for advice and assistance. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this blog useful or interesting? You may also like to read: No jab, no work: Can my employer force me to have the COVID vaccine? The COVID-19 Vaccine Claims Scheme is now live! What compensation is payable? Employment rights and obligations while working from home during COVID-19 https://www.hallpayne.com.au/blog/rss/blog/2022/march/wfh-request-refused/ Sun, 13 March 2022 00:00:00 If injured at work in NSW, you may be entitled to a range of workers compensation benefits. This could include weekly payments for loss of income , a lump sum payment for permanent impairment and cover for, or reimbursement of expenses related to medical treatment and other injury related expenses. In this blog, we will look at what medical and other expenses are available for injured workers in NSW. Expenses for reasonable medical treatment related to your workplace injury If your worker's compensation claim is accepted, you will commence receipt of payments of weekly compensation for loss of income along with any reasonable medical treatment expenses. Your doctor will need to seek approval for any treatment you require. At times, the insurer may need you to attend an Independent Medical Examination (“IME”) in order that they can be satisfied that the treatment is reasonable and necessary. The types of medical treatment (and aids) you may be entitled to include: Your treating doctor (GP) expenses; Allied health professional services like physiotherapy and chiropractic treatment; Surgery; Dental treatment; Hospital expenses; Ambulance; Rehabilitation services; Prosthetics; Glasses, walking aids, hearing aids; and What other expenses may I be entitled to? Injured workers or dependants of deceased workers may also be able to claim for the following: Domestic assistance: cleaning, home maintenance, gardening etc Travel expenses: these expenses are limited to travel required to attend medical related appointments (your treating GP, hospital etc) Funeral expenses: for work-related deaths How long is medical treatment covered for? Medical and related expenses will cease at different times depending on your level of impairment or and the date you ceased to be entitled to weekly benefits. The connection between your level of impairment and your entitlement to medical treatment expenses is as follows: If your whole person impairment is assessed between 0 (zero) and 10% or your permanent impairment has not been assessed, you are entitled to payment of reasonably necessary medical treatment expenses for two (2) years from the date of your claim or two (2) years after your weekly compensation payments cease, whichever is the later; If your whole person impairment is assessed between 11% and 20%, you are entitled to payment of reasonably necessary medical treatment expenses for five (5) years from the date of your claim, or five (5) years after your weekly compensation payments cease, whichever is the later; If your whole person impairment is assessed as being greater than 20%, you are entitled to the payment of your reasonably necessary medical expenses for life. What to do if your claim for medical expenses is denied (rejected) If the IME you were sent to by the insurer does not agree with your treating doctor’s view that you require certain treatment (eg, surgery), the insurer will issue a dispute. If you do not already have an IRO approved lawyer, now is the time to engage one. An IRO approved lawyer will obtain funding for you to see another IME to provide a further opinion as to whether the treatment is reasonable and necessary. The lawyer will also seek funding for a report from your treating practitioner (often your surgeon or GP) regarding the need for the treatment. Once the reports are available, the lawyer will seek a review of the insurer’s decision and the insurer will have 14 days to issue its further decision, which may be to approve the treatment. Should the insurer maintain its decision to decline liability for payment of the treatment, your lawyer will obtain funding to refer your claim to the Personal Injury Commission who will decide whether to refer you to a Medical Assessor to resolve the dispute or whether the matter will be determined at an arbitration hearing. The dispute may resolve through settlement discussions prior to going to arbitration. Get help from a worker's compensation lawyer Hall Payne Lawyers has handled numerous medical treatment (and other expenses) disputes successfully, protecting the interests of our clients and ensuring they received the medical care they require. If you’re unsure about your entitlement to medical and other expenses or you have had a claim for expenses declined by the insurer, contact one of our worker's compensation lawyers for assistance. We are IRO approved and able to seek funding for the disputes, on your behalf. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/march/workers-comp-medical-expenses-nsw/ Mon, 07 March 2022 00:00:00 What is PEXA Key? PEXA, the online settlement and lodgement platform for property transactions has introduced a free secure app called PEXA Key. The app is primarily designed as a secure way to request and share banking details between clients and their conveyancers/solicitors. The app also includes helpful information, tools and resources for both buyers and sellers to navigate their property transactions and settlement process more easily, including providing you with notifications regarding the progress of your settlement. Protecting sellers and buyers from cybercriminals There have been numerous instances in Australia where third parties (criminals) have successfully intercepted an email containing bank account details sent either by the solicitor or client. These criminals intercept the email, change the banking details and forward the email on. They can change banking details within the actual email and also any invoices attached to the email. For all intents and purposes, the recipient of the email believes the email has come directly from their solicitor or another legitimate business. They pay the invoice using the fraudulent banking details contained in the invoice/email. PEXA Key protection for sellers It is often the case that you may have excess/surplus funds at settlement after payment of the mortgage and other expenses. In this situation, your conveyancer will often ask you to provide your bank account details to refund the excess/surplus funds to your account. The most obvious threat, therefore, is that your email containing your bank account details sent to your conveyancer becomes intercepted by a third party. The third party who intercepted your email will then change the account details and send those details to your conveyancer. Ninety percent (90%) of the time your account details will be verbally verified by your conveyancer. However, in some situations, the conveyancer may just rely on email communication.    It is only when settlement is completed and funds are dispersed that you realise your surplus/excess funds have not been deposited to your nominated account.  Rather, they have been redirected to a third party’s account inevitably causing you, your bank and your conveyancer difficulties locating or retrieving your money.   PEXA Key protection for buyers In most situations when you are purchasing a property you will need to deposit funds into your conveyancers/solicitors’ trust account. This usually includes the deposit, final payment, fees etc. The most obvious threat is that your conveyancer’s email containing their trust account details is intercepted and replaced with a third party’s bank account details. In this situation, it is only days before settlement that you or your conveyancer will realise that your payment has not been deposited into the trust account and was likely redirected to a third party. This results in both your conveyancer and you frantically trying to locate the funds. Not only is there a high likelihood you could lose those funds (or at least a percentage of them), invariably it will also delay settlement or worse, you will be unable to settle and the seller might sue you for failing to settle pursuant to the contract. How PEXA Key provides cyber security PEXA key combats the abovementioned cyber threats by: providing a secure platform for you and your conveyancer to enter bank account details; and avoid the use of insecure communication methods such as email where bank account details can be intercepted and payments redirected. Once your bank account details are securely entered into PEXA Key they will be directly uploaded to the PEXA workspace thereby removing any opportunities for cybercriminals to intercept any emails. Another feature of the PEXA Key app is its ability to notify you if your conveyancer has changed your bank account details in the PEXA settlement workspace which could happen as a result of a phishing email or may be a genuine change that you requested.   Hall Payne no longer provides services in property law and conveyancing If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2022/february/pexa-key/ Mon, 28 February 2022 00:00:00 On 11 November 2021, the Fair Work Commission’s ( FWC ) anti-sexual harassment jurisdiction commenced operation. Section 789FF of the Fair Work Act provides that a “worker” (as defined under work health and safety legislation) can apply to the FWC for orders to stop sexual harassment if, while they are at work, one or more individuals sexually harasses them and there is a risk of future sexual harassment. What is workplace sexual harassment? A person sexually harasses another if: they make an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or they engage in other unwelcome conduct of a sexual nature in relation to the person harassed; in circumstances in which a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. Matters such as the gender, age, sexual orientation, gender identity, marital or relationship status, race, colour or national origin of the person allegedly harassed are relevant to assessing whether sexual harassment has occurred. Also relevant is the relationship between the person allegedly harassed and the person who allegedly made the sexual advance or request. In the recent decision of THDL [2021] FWC 6692 , the FWC published its first decision in relation to its new anti-sexual harassment jurisdiction. The case of THDL In THDL , a worker, THDL, operated a business located in a warehouse. THDL alleged that she had been sexually harassed by two men who worked in a neighbouring business in the same warehouse complex. In response, the two men claimed that: they had not sexually harassed THDL; THDL was not a “worker” as defined in the Fair Work Act ( FW Act ) and under work health and safety legislation; THDL was not at work when the alleged sexual harassment occurred; and they had reported THDL to the police and had an intervention order against them. On this basis, the two men asserted that the application should be dismissed. Application dismissed due to no risk of future sexual harassment The FWC decided to dismiss THDL’s application. However, this was not because of the points argued by the two men. The FWC found that it was not required to make a determination on those points, or on whether THDL had been sexually harassed. Instead, the FWC confined its attention to whether there was a risk of THDL being subject to any future sexual harassment at work. By the date of the FWC’s hearing, THDL no longer operated a business in the same warehouse complex as the two men. On this basis, the FWC concluded that “ there is no likelihood that the parties will cross paths while at work. ” On this basis, the FWC dismissed THDL’s application. Conclusion In THDL , THDL accused two men of sexually harassing her at work. On one view, it would be reasonable to assume that the FWC would consider whether THDL was, in fact, sexually harassed. The FWC, however, did not undertake this inquiry. Instead, the FWC focused on the importance that the FW Act places on the risk of future sexual harassment to exist for the FWC’s anti-sexual harassment jurisdiction to be enlivened. Given THDL was no longer working in the same warehouse complex as the two men, this risk was removed. The FWC’s decision in THDL does little to assist in relation to determining what behaviour may be captured by the FWC’s anti-sexual harassment jurisdiction. Instead, THDL demonstrates that even if an employee believes they have been sexually harassed in the past, the FWC may dismiss their application for an order to stop sexual harassment on the basis that there is no risk of future sexual harassment. Get help from an employment lawyer If you, or someone you know, is experiencing sexual harassment in the workplace and you’d like advice or assistance about your legal options, our employment law teams across the country, are able to assist. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/february/stop-sex-harassment-app-dismissed/ Mon, 21 February 2022 00:00:00 A worker involved in a physical altercation in the workplace can face serious disciplinary consequences, including the immediate termination of their employment . Fighting is classified as “serious misconduct” under the Fair Work Regulation. The effect of this is that if your employer sacks you for serious misconduct, they do not have to pay you notice and can terminate you with immediate effect. You may also miss out on long service leave entitlements in some cases. What if the fight wasn’t your fault or you were defending yourself? A number of unfair dismissal cases have considered circumstances where employees have made an unfair dismissal claim after being terminated for fighting at work. The results of some of these cases indicate that a dismissal for fighting at work may be considered unfair, particularly in cases where self-defence, or other significant mitigating factors, are in play. What does the law say? The Fair Work Regulations define serious misconduct to include: “the employee, in the course of the employee’s employment, engaging in: theft; or fraud; or assault; or sexual harassment ; the employee being intoxicated at work; the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.” However, in considering a termination following an allegation of fighting at work, the Commission will have regard to a range of factors, including: the circumstances in which the fight occurred; the length of service of the employee; the role of the employee (including whether they were a more senior or supervisory employee); their work record, including any history of previous warnings; whether the employee was acting in self-defence; whether the termination was procedurally fair; and any other relevant mitigating circumstance Procedural fairness A number of cases stress the importance of providing procedural fairness toward workers when dealing with allegations of fighting at work. In the case of Dewson v Boom Logistics , an employer made a finding that an employee had been involved in a fight at a Christmas party, headbutting another employee. While considering whether the worker had been unfairly dismissed, the Commission concluded that the employee had committed serious misconduct, but found that a number of procedural deficiencies rendered the termination unfair. They considered factors, including: The fact that the employer was aware of the conduct for almost two years before taking any action against the worker; The fact that the employer failed to conduct a proper investigation; A refusal to allow the applicant to have a support person of their choice; and The fact that the decision to terminate was made by a manager who demonstrated bias against the worker . The above factors rendered the decision unfair. Self defence A finding of self-defence may be a crucial consideration where an allegation of fighting at work is substantiated. In the case of Fearnley v Tenix Defence Systems , the employer terminated the employment of Mr Fearnley on the basis that he breached a workplace prohibition on fighting. Fearnley gave evidence that he was attacked by another employee, and that he was “fighting for his life”. The Australian Industrial Relations Commission found that Fearnley’s dismissal was unfair. In ordering his reinstatement, Williams SDP found that: “ In general, fighting at the workplace is unacceptable. Involuntary involvement in a fight or involvement for the purposes of self defence may well be reasonable” The decision in favour of Fearnley, including the decision to reinstate, was subsequently upheld on appeal. Other mitigating factors Other factors may play a role where an allegation of fighting at work is substantiated. The case of New South Wales Fire Brigade Employees' Union (on behalf of Brenden O'Donnell) and Fire & Rescue NSW , the Commission dealt with a worker who had been terminated following an assault at the workplace. The worker had admitted to the assault, but subsequently presented evidence of a work-related diagnosis of post-traumatic stress disorder.  While suggesting such a factor could be considered as mitigating, Tabba C ultimately found that the failure to raise the PTSD diagnosis as a mitigating factor prior to termination, meant that it could not be relied upon and found that the termination was justified. This question was further considered by the NSW Industrial Relations Commission in the case of Sheridan v Health Secretary Illawarra Shoalhaven Local Health District . In that case, Sheridan retaliated after being assaulted with a blow to the head by another employee. Sheridan submitted that his actions were brought about either by the effects of post-concussion syndrome following a blow to the head, or by an underlying psychological condition. However, Sloan C rejected both arguments, finding that neither of these factors brought about Sheridan’s actions. The Commissioner found that the dismissal was not harsh, unjust or unreasonable. Seriousness Notwithstanding the above, the case of DP World Sydney Limited v Mr Stephen Lambley demonstrates the challenges faced by employees contesting terminations for workplace fighting. In that case, Lambley was accused of fighting with another employee, however, the Commission was satisfied that he had been “set up” by another employee (Mr Smith) who had initiated the encounter in order to bring about Mr Lambley’s termination. While the termination was initially found to be unfair, the Full Bench on appeal overturned the finding, stating that: “If Mr Smith had set up Mr Lambley to engage in this conduct in front of CCTV cameras, it does not in any way excuse Mr Lambley’s conduct or suggest that an employer cannot reasonably discipline an employee for the conduct in which they have clearly engaged. We do not consider that this possibility, even if correct, is capable of outweighing the otherwise inherent fairness of dismissing an employee for engaging in a serious assault after following a procedurally fair investigation.” Get help from an employment lawyer Allegations of fighting at work can have serious ramifications up to and including termination of employment. Workers facing such allegations should seek legal advice at the outset of any investigation process. For employers, a failure to afford procedural fairness, or to properly weigh mitigating circumstances, could ultimately render a termination harsh, unjust or unreasonable, despite the otherwise serious nature of the conduct. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/february/fighting-at-work/ Mon, 14 February 2022 00:00:00 Hall Payne Lawyers often acts for health practitioners in their dealings with the Australian Health Practitioner Regulation Agency (AHPRA) and the Office of Health Ombudsman (OHO) in Queensland. The firm also assists a variety of clients in relation to criminal charges. Health practitioners often ask, “ Do I need to tell AHPRA I've been charged with an offence?” The short answer is that in most cases, registered health practitioners will be required to inform their relevant health practitioner National Board (via AHPRA) that they have been charged with a criminal offence. However, there are some exceptions related to the requirement to report criminal charges to your National Board. When do health practitioners need to report criminal matters to AHPRA?  AHPRA's governing legislation, the Health Practitioner Regulation National Law Act 2009 (National Law) provides that registered health practitioners must inform their health practitioner Board (such as the Medical Board of Australia, Nursing and Midwifery Board of Australia, or Paramedicine Board of Australia etc) if a ' relevant event ' has occurred . Importantly, a health practitioner is required to notify their National Board if they: are charged with an offence that is potentially punishable by 12 months imprisonment or more (whether or not any period of actual imprisonment is likely at the end of the matter); or plead guilty, or are found guilty, of an offence able to be punished by any period of imprisonment at all (whether or not a conviction is recorded and whether or not any period of imprisonment is actually ordered to be served). The legislation states that any notification that is required to be made to a National Board must be made within 7 days of the event occurring, so health practitioners should act promptly if they are required to make a notification. Using a criminal lawyer versus a professional discipline lawyer Many criminal lawyers are not aware of health practitioners’ obligations to inform their National Board when they are charged, or convicted, of a criminal offence. We do not criticise criminal lawyers in relation to this, as professional discipline is a specialist area of law. We strongly recommend that health practitioners seek specific advice in relation to any professional discipline matters, particularly those involving their National Board and AHPRA. Common misperceptions about reporting requirements It is a common misperception that registered health practitioners are not required to tell AHPRA about a charge before it is determined. This is not true. If a health practitioner is charged with an offence potentially punishable by 12 months imprisonment or more, they are required to inform their National Board of the charge within 7 days of being charged, even though it has not yet been finalised. It is another common misperception that registered health practitioners are not required to tell AHPRA about an offence if no conviction is recorded. However, as outlined above, a notification is required to be made to AHPRA where the practitioner pleads guilty or is found guilty, of an offence able to be punished by imprisonment, and this is regardless of whether or not a conviction is recorded. What does ‘punishable by imprisonment’ mean? The legislation refers to offences which are ‘punishable by imprisonment’. What does this mean? Where the legislation refers to offences which are 'punishable' by a period of imprisonment, this does not refer to the specific period of imprisonment (if any) ordered to be served by the health practitioner. Rather, the wording of the legislation refers to the maximum period of imprisonment which may be applicable to the offence. If there is no potential period of imprisonment that attaches to an offence (for example, some regulatory offences, where the maximum penalty is a fine), this is not required to be notified to AHPRA within 7 days. However, even if a matter is not required to be disclosed to a National Board within 7 days of it occurring (as there is no potential period of imprisonment), the practitioner may be required to report it to their National Board when they seek renewal of their registration. It is important for practitioners to read the registration renewal form carefully and seek advice if necessary, to confirm whether or not any additional disclosures are required at renewal time. Disclosure to your National Board/AHPRA may be required at a later date There are also matters where a health practitioner may not need to disclose a charge to their National Board initially, but may later need to disclose the matter when they plead guilty or are found guilty of the offence. A good example of where this may occur is in relation to certain drink-driving offences in Queensland. For example, the maximum period of possible imprisonment for a first offence drink-driving matter in Queensland is less than 12 months. A practitioner charged with certain drink driving offences may therefore not need to report the matter to AHPRA when they are charged. However, if they later plead guilty or are found guilty of that offence, they will need to notify their National Board within 7 days of that occurring, as it is an offence potentially punishable by imprisonment. As outlined above, this will apply whether or not any actual period of imprisonment is ordered and regardless of whether a conviction is recorded. Legislation differs between states regarding whether or not certain offences are punishable by imprisonment, so it is important to seek specific advice. Whether or not a criminal matter needs to be notified to a National Board is not always straightforward, though most criminal matters will need to be disclosed. What happens when a health practitioner discloses a criminal matter to their National Board? If a practitioner is required to make a notification of a criminal matter to their National Board, the National Board (and/or, in Queensland, the Office of the Health Ombudsman (OHO)) will consider whether or not the criminal matter may have any bearing on the practitioner's fitness and suitability to practise their profession. Criminal offences do not need to be directly connected with a health practitioner’s work to potentially have a bearing on their fitness and suitability to practise. It is likely that the National Board, or the OHO, will request additional information from the practitioner in relation to the criminal matter. Some matters may be resolved by providing further information. Other matters may result in a further investigation and enquiry by AHPRA on behalf of the National Board. If a matter is sufficiently serious, a National Board may take interim action against a practitioner’s registration until the criminal matter has been determined. Seek legal advice from a health lawyer If you have been charged with a criminal offence, you should seek advice in relation to your National Board reporting obligations as a matter of urgency. If you need advice or representation in relation to any type of professional discipline matter, including making a notification of a criminal matter to your National Board, we are here to assist. Hall Payne Lawyers is highly skilled in advising and representing health practitioners in AHPRA and regulatory complaint processes to achieve the best possible outcome. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: Making statements over the phone to AHPRA Nursing and Midwifery Board decision: AHPRA notification frivolous and vexatious AHPRA framework to manage vexatious complaints against health practitioners https://www.hallpayne.com.au/blog/rss/blog/2022/february/crim-charges-ahpra-notification/ Mon, 07 February 2022 00:00:00 In 2012, the NSW Government passed several amendments to the Workers Compensation Act 1987 (“the Act”). Since then, several amendments to the Act and accompanying regulations along with a number of court decisions, now make up the law covering an injured worker’s entitlement to workers compensation. In this article at what constitutes a workplace injury and how to make a workers compensation claim . We’ve looked in more detail at some of the rights of injured workers in NSW, in these other blogs: Workers compensation entitlements to weekly payments – section 39 ; and Workers compensation in NSW – lump sum claims for permanent impairment Firstly, it’s important to note that the below content does not always apply to: police officers, paramedics and firefighters; workers injured while working in or around a coal mine; bush fire fighters and emergency service volunteers (Rural Fire Service, Surf Life Savers, SES volunteers); and/or people with a dust disease claim under the Workers Compensation (Dust Diseases) Act 1942 . What constitutes a workplace injury? In the first instance, eligibility for claiming workers compensation in NSW requires that the injured worker has sustained an ‘injury arising out of or in the course of employment’. This injury includes any ‘disease injury’ which includes a: ‘disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease’; and ‘the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease’; and ‘does not include (except in the case of a worker employed in or about a mine) a dust disease, as is defined in the Workers' Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined’. Compensation is payable whether the injury occurred ‘at or away’ from the worker's place of employment, including in some instances where an injured worker is travelling to or from work and home. In these circumstances, entitlement to compensation is assessed on a case by case basis. Generally, compensation will only be payable where there is a real and substantial connection between the injured worker’s employment and the accident or incident which resulted in the injury. How to make a claim for workers compensation in NSW An injured worker should notify their employer of an injury as soon as possible after the injury or after diagnosis of any illness or disease. The employer has an obligation to record any workplace injury or work-related disease in the register of injuries and notify their current insurer.   How long do I have to lodge a claim? Often the reporting of injuries does not occur immediately, depending on the circumstances of the injury. Although there are exceptions, the recommended timeframe to lodge a claim for workers compensation is within 6 months of sustaining a workplace injury. If a workers compensation matter ends up in the court system, an Arbitrator will consider all ‘contemporaneous medical evidence’ supporting a workplace injury. So, if an injured worker is unsure as to whether or not the injury is ‘work related’ or generally unsure as to whether they can or should pursue workers compensation rights, it’s advisable that they record their workplace injury related medical condition to their general practitioner or specialist. We strongly recommend injured workers also seek legal advice from a lawyer experienced in workers compensation, at their earliest opportunity. This will ensure they receive all benefits they are entitled to. How do I report my workplace injury? Injured workers can now report their injury through a central system managed by ICARE: By phone: 13 77 22  By email: newpiclaims@icare.nsw.gov.au Reporting workplace injuries through the central ICARE system will preserve an injured workers rights to workers compensation, as a claim number will be issued for future reference. Do I have to provide medical certificates for my workers compensation claim? A WorkCover Certificate of Capacity from the injured workers nominated treating doctor or specialist will be required. It must specify the worker’s capacity for work, the workplace injury (e.g. right shoulder pain) as well as the duration that the injured worker will be off work as a result of the workplace injury. If your injury appears minor, it is still important to notify ICARE It is crucial that workers report any workplace injury to ICARE even where injuries appear to be minor.  This is because an injured worker has a right to claim workers compensation for aggravations of the injury until their pension age, which in most cases spans between the ages of 65 and 67 years old.   How long does it take to make a decision on my claim? The insurer has an obligation to process a claim for workers compensation and decide if they will accept liability or not, within a very specific timeframe; usually a maximum of 2 months. It is common practice for workplace injury claims to be accepted on a ‘provisional liability’ basis. This means the claim is accepted for an initial period of 12 weeks and weekly payments will commence immediately. During the 12 week period, the insurer investigates the validity of the claim prior to making a final determination. What is my entitlement to weekly payments (wages) and medical expenses? If a claim is accepted, weekly benefits are paid in accordance with a formula called “PIAWE” which stands for Pre-Injury Average Weekly Earnings. Generally, PIAWE is paid at a rate of 95% of an injured worker’s ordinary weekly earnings including overtime for the first 13 weeks and then at a reduced rate of 80% of an injured worker’s ordinary weekly earnings including overtime thereafter. There are a number of requirements to remain on weekly entitlements however, generally speaking, weekly entitlements are separated into three ‘entitlement periods’: 0-130 weeks; 130-260 weeks; and beyond 260 weeks . The entitlement to weekly compensation very much hinges on an injured worker’s capacity to work in accordance with the supporting medical evidence as well as their assessment of permanent impairment. There are situations which allow an injured worker to claim an extended right to weekly entitlements and/or medical expenses beyond their entitlement period. If they can demonstrate that they have not reached a period of stability (i.e. maximum medical improvement “MMI”), they may remain on weekly benefits; for example, where extensive treatment or future surgery is indicated by a medical professional. What medical treatment and expenses am I entitled to? The entitlement to a reimbursement for medical expenses is closely correlated to the right to weekly compensation. The general rule that dictates whether medical treatment will be funded by an insurer is whether the treatment is ‘reasonable and necessary’. However, there is an array of exceptions to these rules; for example, those who require surgery or who can demonstrate a condition which is not yet stable. What if my workers compensation claim is rejected? If a claim is declined, then the insurer is obliged to issue a ‘Section 78 notice’ together with all supporting evidence for rejected the claim.  These notices can be reviewed and/or disputed in the Personal Injury Commission. To review or dispute a workers compensation decision, you must have legal representation. Who is IRO? The Independent Review Office (“ W IRO”) assists injured workers with their complaints about insurers and their conduct and resolves those complaints where possible, within 7 working days. The WIRO can be contacted on their website ‘ www.wiro.nsw.gov.au ’ or on their hotline 13 94 76 . An approved legal service provider (“ALSP”) may obtain a legal grant of funding for an injured worker to fund all their professional fees payable to a lawyer or barrister, as well as all disbursements incurred in the running of a worker’s compensation matter. As such, access to justice is available to injured workers in NSW who have sustained an injury and want to challenge a decision of an insurer. If you require assistance with a worker’s compensation matter, please contact the workers compensation team at Hall Payne Lawyers for a complimentary assessment of your entitlements. We can also apply for legal funding on your behalf, from IRO. Get help from a worker's compensation lawyer You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/january/claiming-nsw-workers-comp/ Mon, 31 January 2022 00:00:00 A recent decision of the Full Bench of the Fair Work Commission has quashed a compensation order in an unfair dismissal matter and held reinstatement to be the appropriate remedy. Ultimately, the Full Bench found that the employer failed to demonstrate a loss of trust and confidence in the employment relationship. Background to the unfair dismissal claim In the case of Wally Moszko v Simplot Australia Pty Ltd (‘ Moszko ’), Mr Moszko worked for Simplot as a potato processing plant shift feeder. In November 2020, Simplot terminated his employment on account of allegations he had failed to perform bunker drains across two workdays and falsified a log sheet. Following the termination, Mr Moszko lodged an unfair dismissal application seeking reinstatement to his position with Simplot. Unfair dismissal application successful At first instance, Commissioner Harper-Greenwell found that Mr Moszko was part of a team with shared responsibility for the relevant duties, and the failure to perform duties could not conclusively be attributed to him. The Commissioner consequently held that none of the allegations could be substantiated and that Mr Moszko’s dismissal was harsh, unjust and unreasonable. The Fair Work Commission ordered that Mr Moszko be compensated rather than reinstated Although Mr Moszko sought reinstatement to his position with Simplot, the Commissioner held that reinstatement was inappropriate because Simplot’s trust and confidence in Mr Moszko had been damaged by: the fact that the bunker drain issues remained ‘unresolved’ and Simplot was still unsure who was responsible; and additional, unrelated allegations of workplace misconduct against Mr Moszko that had arisen during the proceedings. The Commissioner considered that if Mr Moszko was reinstated, his work was likely to be closely scrutinised by Simplot and subject to further investigation. As such, the Commissioner held that there were low prospects of a healthy working relationship being re-established between Mr Moszko and Simplot. In place of reinstatement, the Commissioner ordered Simplot to pay compensation of $9,200 plus superannuation to Mr Moszko. The Fair Work Commission’s decision was appealed by Mr Moszko. The Full Bench of the Fair Work Commission quashed the original decision and ordered reinstatement  On 10 November 2021, a Full Bench of the Fair Work Commission quashed Commissioner Harper-Greenwell’s decision and ordered that Mr Moszko be reinstated to his position at Simplot with back-pay and continuity of service. In reaching their decision, the Full Bench endorsed Nguyen v Vietnamese Community in Australia (‘ Nguyen ’) , which stated that reinstatement is inappropriate where: further termination is ‘almost certain’, making reinstatement ‘futile’; and/or there has been a loss of trust and confidence such that it would not be feasible to re-establish the employment relationship. Nguyen also considered the concept of ‘loss of trust and confidence’, and stated that: most employment relationships are ‘capable of withstanding some friction and doubts’; and allegations of loss of trust and confidence must be ‘soundly and rationally based’ and the onus of proof is on the party asserting this claim. In Moszko, the Full Bench held that reinstatement was the appropriate remedy as a sufficient level of trust and confidence could be restored to make the employment relationship viable and productive. In reaching this conclusion, the Full Bench considered the unresolved bunker drain issues and noted that: although the bunker drain issues remained unresolved (and unsubstantiated), any suspicion Simplot had that Mr Moszko was responsible was not a sound or rational basis to lose trust and confidence in Mr Moszko; none of Simplot’s witnesses had indicated that there was a loss of trust and confidence in Mr Moszko; and there was no witness testimony to support a finding that Mr Moszko's work practices would be more closely scrutinised and that Simplot no longer trusted him to work unsupervised. In considering the additional, unrelated allegations of workplace misconduct against Mr Moszko which arose during the proceedings, the Full Bench noted: the further allegations had not been investigated by Simplot and Simplot had not expressed a view on those allegations, even on a preliminary basis; as the further allegations had not been investigated it could not be said that reinstatement would likely lead to disciplinary action or termination; there was no evidence that these allegations had affected Simplot’s trust and confidence in Mr Moszko; and the employment relationship was capable of withstanding some friction and doubts, including those raised by the new allegations. In determining that reinstatement was appropriate in all of the circumstances, the Full Bench also considered the following factors: The importance of Mr Moszko’s role, which meant that Simplot ‘needs to be able to rely on Mr Moszko to provide accurate and reliable information and to perform the duties required of him’; There was no valid reason for dismissal, which supports a finding that reinstatement is appropriate (but is not determinative); Mr Moszko was a longstanding employee of 23 years and had been unable to secure permanent work since his dismissal; Mr Moszko expressed a desire to be reinstated and held no ill will towards Simplot or its employees; Mr Moszko’s claims during proceedings that Simplot had mishandled the allegations – which included calling the disciplinary process a ‘witch hunt’– did not necessarily reflect a loss of trust and confidence in Simplot. This is especially so, given Mr Moszko’s representations to the contrary and given that Simplot had mishandled the allegations; Past, unrelated instances of misconduct on the part of Mr Moszko did not indicate loss of trust and confidence. These incidents did not result in dismissal at the time, indicating that there was enough trust and confidence remaining for the relationship to continue; and Simplot, bearing the onus of proof, did not adduce sufficient evidence to support its contention that it had lost trust and confidence in Mr Moszko. Lesson for those seeking reinstatement after a successful unfair dismissal claim The question of whether reinstatement is an appropriate remedy will depend on whether a sufficient level of trust and confidence can be restored to make the relationship between employee and employer viable and productive. This can be a complicated question and it is consequently, important to seek legal advice about any potential claim. If you’ve been dismissed and think it’s unfair, unjust or unreasonable, there are a strict time limits for lodging a claim. Contact one of our employment lawyers to ensure your rights and entitlements are protected. Contacting a Hall Payne employment lawyer You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/january/reinstatement-after-termination/ Mon, 24 January 2022 00:00:00 In NSW, if you are injured at work, you may be entitled to workers compensation benefits under the statutory scheme , like payment for loss of wages, medical expenses and a permanent impairment lump sum payment. Further, if your injury was due to the negligence of your employer, you may also be eligible for compensation through a work injury damages claim; a common law claim. Who is entitled to work injury damages? There are a number of criteria you need to satisfy to be eligible for work injury damages: Your injury(s) must be as a result of negligence You must be assessed with at least 15% whole person impairment under the WorkCover Evaluation of Permanent Impairment guidelines. These are the same guidelines that will have been used to determine your percentage impairment for your workers compensation permanent impairment claim . The work injury damages claim must be made within three (3) years of injury. If you are assessed at 15% outside the three years, a claim can still be made after leave (permission) of the Court is obtained. A lawyer can advise you more fully in respect of your circumstances and whether you are likely to meet the criteria for a claim. Claims against another party (not your employer) for their negligence Further, there may be another party that may be liable in negligence; for example, a worksite manager, other contractors etc. Claims against such individuals or other parties are referred to as occupiers/public liability claims. A claim against another party can be made regardless of the level of whole person impairment but must be made within three (3) years of the injury. If proceedings are commenced outside 3 years, leave of the Court needs to be obtained. What compensation is payable with a work injury damages claim? Work injury damages claims are limited to a claim for loss of past and future economic losses calculated through to retirement age. The claim also includes payments for past and future loss of superannuation as well as the tax that has been deducted from our workers compensation weekly payments (under the statutory scheme). An adjustment is made to the claim for past economic loss to take into account the amount of weekly compensation the insurer has already paid you under the workers compensation statutory scheme. If you have received Centrelink payments or income protection these will be repayable from the settlement of the claim. In respect of the claim for future economic loss, adjustment is made to the value of the loss by reference to actuarial tables. It is not a straight mathematical calculation of the loss because when you resolve your work injury damages claim, you receive the damages (compensation) as a tax-free lump sum free rather than weekly payments you were receiving previously. There is also a reduction of the future economic loss, generally of 15%, to adjust for the “vicissitudes of life” or the prospect that some other unknown future factor may affect your capacity to earn. What’s the process for making a work injury damages (common law) claim? Once we have determined that your employer’s negligence contributed to or caused your injury and you have resolved your lump sum permanent impairment claim , we will serve a s281/282 notice which sets out the allegations of negligence and the amount we are claiming on your behalf. The insurer will issue its decision in reply. The insurer has two months to reply, however, if the insurer requests further particulars of the claim, the timeframe to issue the decision is extended to two months from provision of the further information. Likewise, if the insurer arranges an Independent Medical Examination (IME), they have two months from the date of the IME.  A Statement of Claim will be drafted. This is a document which sets out all the details of your claim and the basis of our Prefiling Statement which will be served on the other side (the insurer) together with other supporting documents. The insurer will then serve its Prefiling Defence and its documents. We will then seek a mediation in the Personal Injury Commission to try to settle the matter without the need to go to trial. A mediator will be appointed to assist with settlement negotiations. The mediation should normally be scheduled approximately 9 to 12 months from the date we serve the s282 notice. Sometimes a mediation is unable to be held; for example, the insurer refuses to take part in a mediation. In that event, the Plaintiff (you) is required to commence court proceedings to continue with the work injury damages claim. What is the cost to pursue a claim? Legal costs will be payable if you proceed with a work injury damages (or an occupier’s liability claim) as IRO (the Independent Review Office) does not fund these claims. If you choose to engage a Hall Payne personal injury lawyer to assist you with your claim, we will issue you with a costs agreement (outlining the estimated costs to pursue your claim), prior to doing any work for you. What happens when my matter resolves? When your matter resolves (either at mediation or trial), any entitlement to weekly compensation and treatment expenses (under the workers compensation statutory scheme) will end and your workers compensation file will be closed and finalised. You will be paid a lump sum to cover the settled amount for past and future economic loss. At times, the employer may seek that you resign from your employment if you are still technically employed. Get help from a worker's compensation lawyer Most matters resolve at mediation and this is usually the preferred option as it takes less time, is less stressful and less costly. If, however, your matter does not resolve at mediation (or the insurer chooses not to mediate) and the case proceeds to court, Hall Payne has significant expertise and experience in obtaining compensation for injured workers via court processes. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/january/work-injury-common-law-nsw/ Mon, 10 January 2022 00:00:00 On 10 September 2021, (the Commencement Date ) a range of new drink driving laws came into effect in Queensland. These new laws will affect you if you are charged with drink driving after the Commencement Date. In this blog, we explore the significant changes related to the interlock program and compulsory drink driving education. Expansion of interlock program In Queensland, drivers that commit certain drink driving offences are required to participate in an alcohol ignition interlock program.  This involves an approved interlock device being fitted to their vehicle and/or any other vehicle that they will be required to operate for any other reason. An interlock device is a type of breathalyser connected to a vehicle’s ignition. Before a driver can start the car, they must submit a sample of breath to the device. If the interlock device detects a BAC of more than zero, the vehicle will not be able to be started. A driver that has an interlock condition on their licence can only operate a vehicle that has an approved interlock device fitted and must have a BAC of zero (irrespective of whether they hold a full licence). Any person that drives a vehicle fitted with an interlock device must use the interlock to operate the vehicle. Interlock program requirements prior to September 2021 Prior to the Commencement Date, a person convicted of any of the following offences would be required to participate in the interlock program: driving under the influence of alcohol; driving whilst over the high alcohol limit (BAC of 0.15); failing to provide a specimen of breath for analysis; dangerous operation of a motor vehicle whilst adversely affected by alcohol; and committing 2 or more drink driving offences within 5 years. Interlock program requirements from 10 September 2021 After the Commencement Date, in addition to the above offences, all drivers convicted of driving over the middle alcohol limit (BAC equal to or greater than 0.10) will be required to participate in the alcohol ignition interlock program. Charged with drink driving and it may effect your employment? Seek advice: 1800 659 114 The expansion of the interlock program to cover mid-range drink drivers will capture a significantly larger cohort of offenders. A person that is convicted of mid-range drink driving, even one who is successful in obtaining a restricted work licence during the period of their licence disqualification, may face the termination of their employment if they are the subject of an interlock condition and: are required to drive a work vehicle; and their employer refuses to allow the work vehicle to be fitted with an interlock. If you are charged with a drink driving offence and are concerned about its potential impact on your employment, you should ask to speak with one of our solicitors that has experience in both traffic law and employment law matters. Performance based interlock program Historically, interlock conditions in Queensland applied for a set period of time. However, offenders that are convicted of a relevant offence on or after the Commencement Date will be required to participate in a ‘performance-based’ interlock program. The performance-based program consists of an 8-month learning period and a 4-month performance period, during which time the interlock is monitored. If a person fails to comply with the strict conditions required during the performance period, the performance period (that is, the 4-month period) will be restarted and the overall period of the program will be greater than the minimum of 12 months. Non-compliance with the conditions includes if the interlock device detects alcohol or you have a lockout due to a missed scheduled service of your device. If a person that is convicted of a relevant offence does not complete the interlock program, then they will not be eligible to apply for a driver’s licence for five years. Exceptions to the interlock program Seeking an exemption? Call for advice: 1800 659 114 Exemptions in relation to the interlock program are available for people that satisfy certain strict criteria. Exemptions may be available for: people that live in a remote location or on an island; people who have a medical condition that prevents them from providing sufficient breath to operate an interlock; or people who will experience severe hardship if they are not granted an exemption. If you believe that you may be eligible for an exemption, you should seek legal advice about your prospects of making a successful exemption application. Compulsory drink driving education From the Commencement Date, all drivers that are convicted of a drink driving offence must complete a short online drink driving course before being eligible to apply for a new driver’s licence. If a person that is convicted of a drink driving offence does not complete the course, then they will not be eligible to apply for a driver’s licence for five years. If a person is convicted of two or more drink driving offences, the person must complete a repeat drink driving course, which consists of six in-person sessions that take at least two hours each. Exemptions in relation to the repeat drink driving education course are available for people that satisfy certain strict criteria. Exemptions may be available for: people that live in a remote location or on an island and cannot complete the relevant course online; or people who will experience severe hardship if they are not granted an exemption. If you believe that you may be eligible for an exemption, you should seek legal advice about your prospects of making a successful exemption application. Get help from a criminal lawyer The criminal law team at Hall Payne Lawyers is well equipped to provide you with advice about a criminal or traffic charge, including the impacts that any charge may have on your employment. If you are currently facing a criminal or traffic charge you should contact our office and arrange an appointment with a member of our team. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2022/january/drink-driving-changes-2021/ Mon, 03 January 2022 00:00:00 Are you one of the over half a million New Zealand citizens currently calling Australia home? Have you considered applying to become a permanent resident (‘ PR ’)? In this blog, we look at one of the pathways to permanent residency in Australia for New Zealand citizens and explore the requirements around the Skilled Independent (Subclass 189) (New Zealand Stream) Visa for Subclass 444 (‘ 444 visa’ ) visa holders. Thought you were already an Australian permanent resident? “But I thought I already was a permanent resident!” I hear you say. Well, that depends on when you arrived.  In February 2001, Australia and New Zealand entered into a new bilateral social security agreement which meant that anyone arriving in Australia since 26 February 2001 needs to apply to become a permanent resident before they can; access all social security payments; apply to become a citizen; or sponsor family members to stay here as permanent residents. If you were lucky enough to already be here before the cut-off date (26/2/2001), then you’re “sweeeet bro”. You do not need to apply for PR before you move to apply for Australian Citizenship and/or sponsor your family members to become permanent residents. Who is eligible for the Special Category Visa Subclass 444? On entry to Australia, New Zealand passport holders who do not have health concerns or criminal convictions are automatically granted a Special Category Visa Subclass 444 on presenting their NZ passport through immigration clearance. The pathway to permanent residency for New Zealand citizens residing in Australia prior to February 2016 A specific pathway for New Zealanders to obtain PR was introduced in 2017 by adding eligibility requirements to the Skilled Independent (Subclass 189) Visa through a newly created New Zealand Stream. It was specifically designed for: New Zealanders who were residing in Australia before 19 February 2016; and who have been usually resident for at least 5 years before they apply for the visa; and who have earned a taxable income at or above the minimum threshold amount for the four prior financial years (currently $53,900 per annum). You also have to be able to satisfy the same health, character and security checks that all applicants for PR must complete. Permanent residency options for New Zealanders who arrived in Australia after February 2016 All other permanent visa options are available to New Zealand citizens if they can satisfy the relevant criteria.  If you are in a relationship with an Australian citizen or permanent resident, then a partner visa could be an option for you. If you have skills that are in demand in Australia, then you could look at the Skilled Independent (Subclass 189) (Points Tested) Visa or an Employer Sponsored Visa. Benefits of permanent residency in Australia Only 4,820 New Zealanders took up this option in 2017-2018. Between 2018 and 2020 another 10,500 (approx.) New Zealanders have applied for the 189 (New Zealand Stream) visa. That’s a very small percentage of the overall New Zealander population living in Australia. If you become a permanent resident, you will: be able to work and study in Australia; enrol in Australia’s national health scheme, Medicare; sponsor eligible relatives for permanent residence; travel to and from Australia (with valid travel permits); receive the same social security entitlements as an Australian citizen (after serving any applicable waiting period). How much does it cost to apply? The application fee is broken up into two payments. There is a 20% upfront fee at the time of application and the balance is payable before a decision to grant your visa is made. As of September 2021, the fee is $4115.00 in total for the main applicant. Additional charges apply for family members included in your application. How long does the application process take? Applications take approximately 17 months to be assessed and a visa granted.  Get help from a registered migration agent  You can learn more about Hall Payne’s migration/immigration services here . If you would like more information about this visa, book an appointment with our qualified migration agent today. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2021/december/perm-residency-for-nz-citizens/ Mon, 27 December 2021 00:00:00 In what marks the end of a 2.5-year dispute with the Queensland Police Service, Hall Payne Lawyers has succeeded in upholding the acquittal of four union officials. The officials were arrested in December 2018 for trespassing while trying to exercise statutory right of entry powers to remain at a worksite of a recalcitrant employer to investigate serious suspected contraventions of the Work Health and Safety Act 2011 (Qld). Background You can read the full details of the matter when it was first heard in the Magistrates Court, which resulted in the acquittal of the union officials on a “no case to answer basis”, in our earlier article “Indemnity costs awarded when court finds ‘right of entry permit holders’ wrongly charged with trespass” .   At the conclusion of that matter, the Queensland Police Service was ordered to pay $85,000 on account of our client’s costs, which we understood to be the highest costs order made against the police in Queensland for a summary charge. Queensland Police Service appeal the Magistrates Court decision The Queensland Police Service successfully appealed the decision in the District Court of Queensland. The District Court Judge ordered that the matter be sent back to the Magistrates Court for a new trial. The union officials were ordered to collectively pay $7,200 on account of the costs incurred by the police. They were also required to repay the $85,000 that had previously been paid by the police. Union officials appeal the District Court judgment The union officials then appealed the District Court judgment to the Queensland Court of Appeal which comprised of three Supreme Court Judges. The Judges unanimously upheld the decision of the Magistrate and the acquittal of the union officials and overturned the District Court judgment. Costs were ordered against the police for both the Court of Appeal and District Court proceedings. The Court of Appeal judgment can be accessed here . Significantly, the Court of Appeal stated (emphasis added): “Sections 117 and 118 are interrelated and must be read together. Those sections clearly express in unmistakable and unambiguous language that, if a WHS entry permit holder reasonably suspects that a contravention of the Work Health and Safety Act that relates to or affects a relevant worker has occurred or is occurring, that permit holder may enter and remain at the workplace for the purpose of inquiring into the suspected contravention in the ways described in s 118. The statutory language is not open to a construction under which the rights conferred upon the WHS permit holder are exercisable only with the consent of the occupier. Such a construction also would be inconsistent with the purpose of the Act and the statutory context. ” As such, the Court of Appeal found that: “The evidence in the prosecution case was incapable of proving beyond reasonable doubt that the applicants remained at the site unlawfully. The charges were rightly dismissed by the Magistrates Court for that reason. ” Queensland Police required to pay costs of over $169,000 As a result of the judgment, the Queensland Police Service was required to pay a total of $169,119.29. That included: repayment of the $85,000 from the Magistrates Court proceeding; $7,200 paid to the police for the District Court proceeding; and $76,914.69 from the Court of Appeal proceeding. So significant was this matter that s.11(3) of the Summary Offences Act 2005 was amended by the Queensland Parliament to prevent the police from charging union officials who are lawfully exercising statutory right of entry and remaining on premises in the future. The statutory right of entry regime plays a significant role in ensuring that Australian workers are protected from imminent risks to their health and safety and attacks on their lawful entitlements by employers who think they are above the law. Hall Payne Lawyers will continue to play our part for the union movement by ensuring that such important rights for union officials, and subsequently workers, remain protected at all costs. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2021/december/right-of-entry-win/ Mon, 13 December 2021 00:00:00 Many employees wonder whether their employer can lawfully direct them to obtain a vaccination . Complexities including vaccine aversion and the rapidly evolving nature of the COVID-19 pandemic have influenced the approach taken by Australian courts and tribunals in response to employer mandated COVID-19 vaccination. A recent decision of the Full Bench of the Fair Work Commission has again considered the lawfulness of an employer’s vaccine mandate. CFMMEU v Mt Arthur Coal Pty Ltd In October 2021, Mt Arthur Coal Pty Ltd announced that in order for its employees to enter its Hunter Valley coal mine, they would need to: have at least one dose of a COVID-19 vaccine by 10 November 2021; and be fully vaccinated by 31 January 2022. The CFMMEU, who represents most of Mt Arthur Coal Pty Ltd’s employees, challenged the direction on the basis that it: did not comply with consultation obligations under the Work Health and Safety Act 2011 (NSW) (“the WHS Act”) and the applicable enterprise agreement; contravened the Privacy Act 1988 (Cth); and was not lawful/reasonable and interfered with the rights of employees in relation to medical procedures. Mandating vaccination must be lawful and reasonable The Full Bench observed that employers can mandate vaccinations when such a direction is lawful and reasonable, even in the absence of a public health order or express term in an employment contract contemplating such measures. Whether a direction is lawful and reasonable depends, the Full Bench stated, on a variety of circumstances, including: the nature of the employment; common employment practices; any instruments and laws governing the employment relationship; and whether there is a logical and understandable basis for the direction. Several factors indicated that the Mt Arthur Coal mandate was lawful and reasonable, in the eyes of the Full Bench, including that it aimed to ensure the health and safety of workers, had a logical and understandable basis and was reasonably proportionate to the risks created by COVID-19. There was also seemingly no dispute about the effectiveness of the vaccines or the serious risks posed by COVID-19. Despite this, the Full Bench gave significant weight to obligations under the WHS Act which, being a law governing the employment relationship, obliged Mt Arthur Coal Pty Ltd to provide employees with a genuine opportunity to express their views on matters involving their health and safety. The Full Bench found that as this consultation had not occurred, the vaccine mandate was not lawful or reasonable. If Mt Arthur Coal Pty Ltd complied with its consultation obligations, the Full Bench held that it was possible for it to institute the mandate in the future, lawfully and reasonably. Full Bench generally supportive of the mandate save for the lack of consultation At first glance, the Full Bench’s decision is a victory for those who oppose vaccine mandates. Arguably, the decision opens an avenue for employees to claim that their employer’s vaccine mandates are unlawful and unreasonable. A closer analysis of the decision shows, however, that the Full Bench was generally supportive of Mt Arthur Coal Pty Ltd’s vaccine mandate. Barring consultation deficiencies, it is likely that the Full Bench would have concluded that the vaccine mandate was lawful and reasonable. Conclusion The Full Bench’s decision confirms that employers must follow certain processes, including complying with consultation obligations, before mandating vaccination. The decision is an example of the case-by-case analysis that will be undertaken by courts and tribunals in assessing the lawfulness and reasonableness of any direction, including those seeking to impose vaccine mandates. Employees should consider whether their employer has followed obligations, including in relation to consultation, if they receive such a direction which causes them concern. Get help from an employment lawyer  Today's article was researched by Research Clerk, Billy McEvoy and written by employment lawyer, Tim Grellman .  You can contact Hall Payne Lawyers by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2021/december/vaccine-workplace-mandates/ Wed, 08 December 2021 00:00:00 As an employee, you may be faced with a stressful situation where your employer directs you to do something illegal – potentially under duress or threat of losing your job. It is imperative you understand your rights and obligations in relation to reasonable and lawful directions from your employer in order to avoid personal risks, such as civil action against you or criminal charges being laid. Reasonable and lawful direction As an employee, you are bound to adhere to and comply with all reasonable and lawful directions from your employer. This is an implied obligation in all employment relationships. It also appears in the Fair Work Regulations 2009 (Cth) in the context of summary dismissal for serious misconduct . Failure to comply with reasonable and lawful directions may result in a finding of serious misconduct . If substantiated, there is a risk of disciplinary action being taken against you, up to and including termination of employment. Termination in such circumstances is usually without notice. A direction from an employer will not be lawful if that direction requires an employee to breach any State, Territory or Commonwealth legislation. An employee may refuse to comply with the direction in these circumstances. An employee will not be required to comply with a direction from their employer, if that direction is unlawful, unreasonable, outside the scope of the employee’s role or area of expertise or if the action required would cause a risk to the health and safety of the employee or others. Employees are responsible for their own illegal conduct Where an employee complies with an unlawful direction and engages in conduct or activity that is illegal, the employee could be personally responsible and may face charges for any criminal offences that may have been committed in the course of complying with that direction. Where you suspect your employer is directing you to act in an illegal manner, you should raise this concern through the applicable internal policies and procedures or as set out in an applicable enterprise agreement or award. If there are no policies, agreements or awards relative to your employment (or you do not know of any), you should speak with your Union or a lawyer experienced in employment law. Employee protections for refusing an unlawful direction Your employer cannot treat you differently, bully you or terminate your employment on the basis of your refusal to engage in an unlawful direction. Protections under the Fair Work Act exist to avoid adverse action or termination in these circumstances. Such inappropriate conduct by an employer can generally be escalated and dealt with in the Fair Work Commission. Get help from an employment lawyer If you suspect or have been directed to act in an illegal manner by your employer, it is imperative to seek legal advice as a matter of priority. Hall Payne Lawyers are highly skilled in advising and representing employees before a range of Commissions and Tribunals. If you need advice or representation in relation to any type of employment law matter, you should seek advice as early as possible.  You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2021/december/employer-instructs-illegal-activity/ Mon, 06 December 2021 00:00:00 Incidents on construction sites are by their very nature complex. Liability for construction incidents can often arise because of the negligent actions of multiple respondents. When a respondent goes into liquidation following an incident, an injured worker has the added hurdle of obtaining leave of the Court prior to commencing proceedings and the Court has discretion as to whether or not to grant that leave. In this case, the injured worker, who had sustained a life-threatening injury during the course of his employment, was initially denied leave, by the Supreme Court (QLD), to proceed with his claim. Hall Payne Lawyers, on behalf of the injured worker, appealed the Supreme Court decision to the Queensland Court of Appeal. By unanimous judgement in the Court of Appeal, the decision at first instance was overturned and the injured worker was granted leave to proceed with his claim against the respondent in Palace v RCR O’Donnell Griffin Pty Ltd (in liq) [2021] QCA 137 . Background facts In 2018, Mr Palace was working as an electrician during the construction of a solar farm in Townsville, the Sun Metals Solar Farm. RCR O’Donnell Griffin Pty Ltd (Ltd) (‘RCR’), was responsible for the design and construction of the solar farm. Mr Palace was employed by a labour-hire company, Mass Solutions WA Pty Ltd (‘The Employer’). On 13 February 2018, Mr Palace was injured during the course of his employment on the solar farm. His injuries were serious and included life-threatening heat stroke and orthopaedic injuries sustained whilst he, in an incoherent and disoriented state, was being transferred to hospital. Prior to the commencement of proceedings, RCR entered voluntary liquidation and Mr Palace was required to seek leave of the Court to proceed with his claim. Proceeding against a company in liquidation A company entering into liquidation is not a bar to proceedings in a personal injury claim, however, it does require an application to the Court for leave (permission of the Court) to proceed. This requirement is set out in the Corporations Act 2001 (Cth) section 500(2): After the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeding with or commenced against the company, except by leave of the Court and subject to such terms as the Court imposes. Decision at first instance At first instance, the primary judge considered the application for leave to bring proceedings against RCR. The Court considered the relevant principles, as set out by Justice Bond in QNI Resources Pty Ltd v Park  (2016) 116 ACSR 321, and dismissed the application, determining that Mr Palace had: not demonstrated that there was a serious question to be tried in the sense that it had not been shown to any relevant degree that there was a claim against RCR for the damage caused to his knee and ankles; not demonstrated that the degree of complexity of the legal and factual issues involved favoured the grant of leave; and the damages which he might recover on the basis of the claim had it advanced, were less than the deductible of the insurance policy As a consequence, Mr Palace had no entitlement to proceed with a claim for personal injury against RCR. Queensland Court of Appeal decision Hall Payne Lawyers appealed this decision to the Queensland Court of Appeal, on the basis that the judge at first instance erred in failing to properly consider and give appropriate weight to the evidence before the Court. In considering the appeal, the Court of Appeal found that the primary judge had indeed erred, not in recognising which legal principles should be considered in such an application, but in the application of those principles to the facts. As to the first conclusion of the primary judge, the Court of Appeal determined: There was a detailed explanation of the circumstances of the occurrence of the injury in the exhibited statutory declaration by Mr Palace; There was evidence which justified an arguable case of at least shared responsibility for health and safety of employees as between the respondent, who arguably controlled the site, and Mass Solutions who was the relevant employer; Although there was no evidence naming the co-workers involved, there was evidence identifying them by position description, which when taken with the terms of the subcontract, provided an arguable connection with the respondent; and There was an articulation of duty, breach and foreseeability, arguably supported by expert opinion evidence. The Court considered that this evidence together demonstrated there was the relevant serious question concerning the responsibility of RCR for the orthopaedic injuries sustained by Mr Palace. As to the third conclusion, the Court of Appeal determined: In the exhibited statutory declaration, Mr Palace had provided a detailed explanation of the impact of his injury; Support for Mr Palace’s contentions concerning the impact of his orthopaedic injuries was to be found in the medical opinion evidence; and Once regard was had to past and future economic loss caused by the injuries to his knees and ankles, the damages which Mr Palace might recover on the basis of the claim, greatly exceeded the deductible for the insurance policy. In allowing the appeal and setting aside the decision of the primary judge, the Court of Appeal determined that the claim had ‘ sufficient merit to warrant the grant of leave. ’ Conclusion This decision is an important win for a deserving worker who had sustained life-threatening injuries during the course of his employment. As a consequence, the injured worker now has leave to proceed with his claim against RCR. Further, the decision has utility in clarifying the legal principles that apply to applications for leave pursuant to section 500(2) of the Corporations Act 2001 in the context of personal injuries claims. Get help from a personal injury lawyer If you have sustained an injury at work and require advice, our team of experienced Personal Injury Solicitor s at Hall Payne Lawyers can help.  You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Or you can contact this article’s authors directly Cale Fryer – Principal in Personal Compensation Law Qld Amanda Brooker – Solicitor in Personal Compensation Law Qld https://www.hallpayne.com.au/blog/rss/blog/2021/november/personal-injury-and-liquidation/ Mon, 29 November 2021 00:00:00 In 2012 amendments were made to the New South Wales Workers Compensation Act 1987 (‘the Act’). These changes mean that an injured worker who was in receipt of weekly benefits (their weekly wages) since 1 October 2012, has no entitlement to weekly payments of workers compensation after an aggregate period of 260 weeks, or 5 years. This amendment is under s39 of the Act and is referred to as the ‘260 Week Rule’ and impacts significantly on workers compensation benefits for injured workers. How does the 260 week rule work? Your weekly payment start date depends on when you were injured and when you made a claim. For a claim made prior to 1 October 2012 (referred to as an ‘existing claim’), your 260 week count commences 1 January 2013. For claims made on or after 1 October 2012, your 260 week count commences on the first day of incapacity. Many insurance companies did not advise injured workers of their rights about determination to cease weekly payments In recent months and years, many injured workers in NSW were contacted by insurers requesting that they be assessed by a doctor to determine their eligibility for further weekly payments beyond 260 weeks. Many injured workers were not advised by their insurers at that time, that they did not have to accept the insurer’s medical assessment or decision to cease their weekly payments as a final decision. Further, they were not advised that they have the right to independent legal advice. As such, many injured workers still retain their right to challenge the Insurers assessment and it is possible, to recommence weekly payments to an injured worker beyond 260 weeks, if certain criteria can be met. Legal funding available if you have been impacted by s39 Hall Payne Lawyers can apply for legal funding on your behalf, from The Independent Review Office (“IRO”) if you are impacted by Section 39 in any way. The exception to the 260 week rule - 21% whole person impairment Section 39 also states that if a worker is assessed as having sustained an injury which results in an assessment of whole permanent impairment percentage (“WPI”) of more than 20%, that they are entitled to a continuation of weekly payments beyond 260 weeks. This requires injured workers to have an overall WPI assessment of 21%. How is your WPI calculated? For the purpose of Section 39, it is unnecessary to rely on one WPI assessment to achieve 21%WPI. It is possible to attain the threshold of 21% WPI by requesting a n Medical Specialist in the Personal Injury Commission (“PIC”) convert and/or combine an injured worker’s previous WPI assessment with previous or current WPI assessments. Here’s an example of how that might look: An injured worker sustained an injury at work in 2003 They received a WPI settlement of 10% in 2004 In 2010 they received a further WPI settlement of 14%. They may combine both amounts (10% plus 14%) to exceed the 20% threshold. Further, to exceed the threshold of 20% WPI and therefore allow a continuation of weekly entitlements beyond 260 weeks, it is possible to combine WPI assessments from differing body systems. Using the above example, let’s assume the worker sustained an original injury to their lumbar spine in 2003. In 2004 they were prescribed pain medication which resulted in a loss of teeth, due to difficulty in swallowing and chewing and overall damage to their ear, nose, throat structures (“ENT”). The injured worker could request that the Orthopaedic WPI (from the original 2003 injury) be combined with the ENT WPI for the purpose of a Section 39 assessment. This can involve complex investigation and calculations. Hall Payne Lawyers are highly experienced in the guidelines used to assess WPI including combining WPI assessments to assist you in achieving an overall WPI assessment of 21% or more. What if the injured worker has not reached ‘maximum medical improvement’? If an injured worker cannot be assessed for WPI because they have not yet reached “maximum medical improvement” (“MMI”), an exemption to the 260 week rule and thus Section 39 may be sought from the PIC. If an injured worker requires future surgery or considerable treatment, a Medical Specialist appointed by the PIC may assess that the worker’s weekly entitlements continue beyond 260 weeks. Section 39 and your entitlement to ongoing medical expenses A cessation to an injured worker’s weekly entitlements pursuant to Section 39 also impacts their entitlement to medical expenses. Please note that it is possible to receive a continuation of “reasonably necessary medical treatment and services”, including lifetime entitlement for crutches, artificial members, eyes or teeth and other artificial aids or spectacles, including hearing aids and hearing aid batteries, home or vehicle modifications. Secondary surgery is also available for all eligible workers if: the surgery is directly consequential to an earlier surgery and affects a part of the body affected by the earlier surgery, and the surgery is approved by the insurer within two years after the earlier surgery was approved (or the surgery is approved at a later date due to a dispute that arose within the two years) The duration for other medical or related treatment depends on the WPI assessment relied upon by the insurer at the time that weekly entitlements ceased. If an injured worker has their weekly entitlements ceased, pursuant to Section 39, but then is assessed between 0-10% WPI, the injured worker is entitled to a further two years of medical or related treatment from the date their weekly payments ceased. If an injured worker is assessed at between 11-20% WPI, the injured worker is entitled to a further five years of medical or related treatment from the date the worker’s weekly payments ceased. Do not automatically accept an insurer’s decision to cease weekly entitlements Hall Payne Lawyers can challenge a WPI assessment for the purpose of extending medical treatment, given often an injured worker has returned to work but still requires treatment. Workers exempt from the 2012 NSW workers compensation amendments The above information does not apply to exempt workers who were not impacted by the 2012 amendments. These workers include: police officers; paramedics; firefighters; coal miners; and other injured workers. Get help from a worker's compensation lawyer Please seek the advice from our Workers Compensation Lawyers if you are impacted by section 39. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au This article relates to workers compensation claims in New South Wales. https://www.hallpayne.com.au/blog/rss/blog/2021/november/workers-comp-weekly-payments-nsw/ Mon, 22 November 2021 00:00:00 A recent case before the Fair Work Commission (FWC) has served to highlight the provisions around demotions and the circumstances in which they can constitute a dismissal. The FWC has, in a recent case (Aug 2021) found that a significant pay reduction, with no change to the employee’s role and responsibilities, was a demotion constituting ‘dismissal’ within the meaning of s 386 of the Fair Work Act (‘FW Act’). This highlights the fact that employees may be able to challenge a demotion which reduces their pay but provides for no change to their duties, under the unfair dismissal provisions of the FW Act, even where they continue to be employed in the same role. Background In Todd James v NSW Trains , Mr James had been employed as a shift manager with NSW Trains for over 30 years. Following an investigation into allegations of misconduct, Mr James was disciplined. His employee classification was lowered and his gross annual pay was reduced from $141,442 to $127,569. There was no change to Mr James’ duties nor his location of work. Mr James then filed an unfair dismissal application in the FWC. What is a demotion? With no relevant judicial interpretation, Deputy President Saunders approved the following dictionary definition of the word demote: “to reduce to a lower grade or class (opposed to promote)” His Honour found that Mr James had been demoted. In addition to his reduced remuneration, it was concluded that changes to Mr James’ employee classification also supported the finding that he had been demoted. The relevant Enterprise Agreement specified classifications from RC1 to RC7, each of which contain increments “Level A” to “Level E”. DP Saunders found that both the classifications and the incorporated increments, were ‘grades’ within the meaning of ‘demotion’. His Honour gave weight to the fact that the Agreement described these levels as ‘grades’, and provided for progression between them based on performance, with higher remuneration payable at each level When does a demotion constitute a dismissal (termination of employment)? Section 386 addresses the meaning of the word ‘dismissed’ for the purposes of the FW Act.  It states that a person has been dismissed if their employment has been terminated at their employer’s initiative, or alternatively if they have been forced to resign by their employer’s conduct. Examples of circumstances in which a person has not been dismissed are also provided. A person has not been dismissed if they have been demoted, but their demotion does not involve significant reduction in remuneration or duties, and the person remains employed with the original employer. Commissioner relies on previous decision when determining the Todd James matter In Todd James , DP Saunders endorsed his own reasoning from the matter of Scott Harrison v FLSmidth Pty Ltd (‘Harrison’) [2018] FWC 6695, which held that a demotion will constitute a dismissal when it involves a significant reduction in the employee’s remuneration or duties, and the employee remains employed by the employer that effected the demotion Harrison , of which forty paragraphs are extracted in the Todd James decision, attempted to reconcile judicial differences dating back to the Workplace Relations Act and earlier. Cases such as Charlton, Navitas, Moyle and Visscher , considered the meaning of the term ‘termination of employment’ – which was also used to define dismissal under that scheme – and particularly whether this necessitated the termination of the employment contract, or merely the employment relationship. Termination at the employer’s initiative means termination of the employment relationship, not the employment contract Relying on Navitas , DP Saunders, in Harrison, found that ‘termination at the initiative of the employer’ describes termination of the employment relationship, rather than the termination of the contract of employment. This means that termination of the contract of employment does not of itself constitute a dismissal where the employment relationship has continued. As a demotion does not involve termination of the employment relationship, His Honour therefore reasoned that demotion is its own form of dismissal, distinct from dismissals in which the employment relationship is terminated. Important implications when interpreting ‘dismissal’ This finding highlights two important factors for the meaning of ‘dismissal’ under the FW Act . Firstly, there is no need to demonstrate that an employee has been ‘dismissed’ at the employer’s initiative (including constructive dismissal)when determining whether a demotion is a dismissal. A demotion is a form of dismissal when it imposes a significant reduction in an employee’s remuneration or duties, and the employee remains employed by the employer. Secondly, a demotion can still be a form of dismissal even if it is authorised under the employment contract or industrial instrument. What constitutes a ‘significant reduction in duties or remuneration’? His Honour concluded that a significant reduction is one that is: ‘important, or notable, or of consequence, having regard to its context and intensity’, and excludes ‘minor or unlikely’ impacts. Mr James gross annual remuneration was reduced by $13,873 from $141,442 to $127,569. This was a decrease of 9.8% and amounted to $500 a fortnight, or $7 an hour based on gross hourly pay. DP Saunders also considered the demotion’s impact on annual leave, long service leave, superannuation and redundancy pay (given Mr James’ likely redundancy in the next six months or so). For these reasons, the demotion was found to constitute a significant reduction in remuneration. What to take away from Todd James ? Todd James is notable for the fact that a mere reduction in grade and pay was found to constitute dismissal within the meaning of the FW Act. At the time of writing, proceedings are underway as to whether that dismissal was unfair. Although the decision builds heavily off Harrison vs FLDSmith , unlike the employee in Harrison , Mr James experienced no demotion in duties or responsibilities. For employees, these decisions give rise to the possibility of challenging certain disciplinary actions, and their fairness, under the unfair dismissal scheme. Like Harrison , Todd James reinforces the only test; that is, whether the demotion imposed a significant reduction in the employee’s remuneration or duties, and whether they remain employed by the employer. Todd James also gives guidance on the level of reduction considered to be ‘significant’. Get help from an employment lawyer If you’ve been demoted and that demotion has resulted in a significant reduction in your pay without any change to your role or duties, it is crucial that you seek advice early. It is important to note that strict time limits apply to lodging an unfair dismissal claim. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2021/november/demotion-and-dismissal/ Mon, 15 November 2021 00:00:00 One of the biggest surprises that has emerged as a result of the COVID-19 pandemic is the ability for a large number of workers to productively work from home (or WFH as it has come to be known). With WFH options continuing for many workers even after the pandemic, this poses the question, “What are my workers compensation entitlements if injured while working from home?” In this blog, we outline how the current laws would operate in hypothetical situations where a worker may get injured while working from home. While we provide this as general advice; cases are always assessed on a case-by-case basis. It’s important to obtain legal advice about your specific circumstances, from a lawyer experienced in NSW workers compensation claims . General requirements to be eligible for worker’s compensation in NSW For any worker’s compensation claim to be successful in NSW , the injury needs to arise out of the course of employment and the worker’s employment needs to be a substantial contributing factor to their injury. If the worker’s employment has caused an aggravation type injury, then the worker’s employment needs to be the main contributing factor, to be eligible for workers compensation. Section 11 of the Workers Compensation Act 1987 (NSW) (‘the WC Act’) relates to injuries which happen during ordinary recess/breaks or an authorised absence from work duties. This section of the Act states that if a worker attends their place of employment, or is temporarily absent from their place of employment and gets injured, then compensation is payable. Under this section, the employer/insurer has a defence where compensation is not payable if the worker was subjecting themselves to an abnormal risk of injury. Is the home a ‘place of employment’? The issue of whether the home falls within the ‘place of employment’ definition has not yet been considered. However, it is accepted that a worker’s course of employment can extend beyond a worker’s normal hours and normal place of work. The intention of section 11 of the WC Act is to cover injuries sustained during a break in work taken for the purposes of ‘refreshment or relaxation’. The concept of an ‘ordinary recess’ would also be limited to a relatively brief interruption to work. A few of the below scenarios may fall under section 11 of the WC Act Worker cuts their finger while making lunch This situation would be reasonably clear and would likely fall under an ‘ordinary recess’ injury as the worker is entitled to lunch breaks and it is for the purpose of ‘refreshment or relaxation.’ It is therefore likely that this will be a successful claim for a worker under section 11 of the WC Act. It is unlikely that an employer could rely on the defence provided under this section as preparing lunch with a knife would likely not be considered voluntarily subjecting themselves to an abnormal risk of injury. Worker takes a break to hang the washing out and hurts their back In relation to this scenario, you would need to look at the purpose of the ordinary recess or authorised absence. It would be unlikely that this would be considered an authorised absence as an employer would have to provide that it would be OK for an employee to hang their washing out. The worker would need to show that this ordinary recess was taken for the purposes of refreshment and relaxation. It would be highly unlikely that hanging washing would fall under this purpose.   Worker’s child runs into them and causes injury In this situation, the consideration would be whether the worker’s employment is a substantial contributing factor to their injury. It would be highly unlikely that this claim would be successful as there does not seem to be a connection with the work the employee was doing and the injury. There may be potential for a compensation claim if the employer has allowed a worker to work from home in order to care for their children, however, this has not been explored yet. Worker choosing to work outside usual hours and hurts their neck The issue here is whether the injury happened during the course of employment. If there is an agreement in place that the employee can do their work outside usual hours, this will be easily satisfied and liability will very likely be accepted. Further, if the worker could show that they had previously commenced their duties outside their usual hours, this would again likely be satisfactory for a claim to be accepted. It is generally accepted that the course of employment can extend beyond the worker’s normal hours if the worker was engaged in work-related duties. Worker gets injured working in bed when work policy states that work should only be done at an ergonomic desk/workstation The worker's compensation scheme is a no-fault system. In this situation, it means that even if the employee wasn’t following procedure and they get injured, it is likely that the insurer would still be liable. The defence that may be available to the employer/insurer is that the worker’s injury was solely attributable to the serious and wilful misconduct of the worker (Section 14(2) of the WC Act). However, it is unlikely that lying in bed whilst working could come under this defence as the term ‘wilful’ has been taken to mean that the worker has acted deliberately. Although the employer/insurer could state that the worker deliberately did not follow policy, the employer/insurer would also need to show that the worker had knowledge of the risk of injury and knowing this, proceeded without regard to the risk. Conclusion Cases will often never be exactly the same and the facts of each case will need to be individually assessed in order to determine any worker’s compensation rights and entitlements. While these scenarios may seem highly unlikely to occur, with the number of employees now working from home, claims of this nature may slowly start emerging. If you’ve been injured at work or while working from home and you’re unsure if the circumstances of your injury will be covered by worker’s compensation, contact us for advice and assistance. Our team of lawyers are IRO approved lawyers which means that there are no legal costs payable by the worker from start to finish, for any workers compensation claims.  Get help from a worker's compensation lawyer You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: How to claim workers compensation in NSW Workers compensation - entitlements to weekly payments Workers compensation NSW – lump sum claims for permanent impairment NSW workers compensation claims for psychological injury https://www.hallpayne.com.au/blog/rss/blog/2021/november/injured-wfh-nsw/ Mon, 08 November 2021 00:00:00 If the requirements for redundancy, as set out in the Fair Work Act , are met, an employee is ordinarily entitled to redundancy pay depending on the size of their employer and their length of service. However, employers are increasingly attempting to utilise a provision of the Act to reduce an employee’s entitlement to their redundancy pay. In this blog, we look at when a redundancy payment can be reduced or varied and under whose authority this can be done. What is redundancy? A redundancy occurs when your employer has determined that they no longer require your job to be done by anyone for reasons such as changes in the structure of the business, impacts on the business due to the economy or the introduction of new technologies into the workplace.   The Fair Work Act 2009 (Cth) (‘ the FW Act’ ) states that for a dismissal due to redundancy to be fair, the redundancy must be genuine and it then sets out what a genuine redundancy necessitates. This includes three requirements: The employer no longer requires the employee’s job to be performed by anyone due to the business operational requirements; Consultation with the affected employee if any obligation arises by an award or enterprise agreement; and The employer has determined it was not reasonable in all the circumstances for the employee to be redeployed within the employer's enterprise, or the enterprise of an associated entity of the employer. Can my employer vary the redundancy pay? An employer can apply to the Fair Work Commission (‘ FWC’ ) to vary an employee’s entitlement to redundancy pay where the employer: obtains other acceptable employment for the employee; or cannot pay the amount of the employee’s entitlement. The FWC must make a determination according to the circumstances of each individual case and may then order the redundancy pay to be reduced to a specific amount, or even in some cases removed entirely. It’s important to note that only the FWC can vary or reduce an employee’s redundancy entitlement unless otherwise agreed between an employee and employer. The employer cannot vary the amount without an order from the FWC. If your employer is attempting to reduce your redundancy entitlement, you should seek legal advice . Case example – Greener Grocer v Nicola Hawkins In the recent case of Aisle 4 Pty Ltd T/A Greener Grocer v Nicola Hawkins [2021] FWC 4185 (16 July 2021) the FWC was required to consider an employer’s application to reduce an employee’s redundancy on the basis that they had obtained other acceptable employment for the worker. The employer, Aisle 4 Pty Ltd T/A Greener Grocer (‘ Greener Grocer ’), sought to reduce the employee, Ms Nicola Hawkins (‘ Ms Hawkins’ ) redundancy payment from 11 weeks’ pay to 2 weeks on the basis that they had obtained other acceptable employment for Ms Hawkins at an alternative employer, Harris Farm Markets (‘ HFM’ ). Green Grocer submitted that they should only be required to pay Ms Hawkins 2 weeks’ pay as this was the period of time between Ms Hawkins employment ending with Greener Grocer and her new employment commencing with HFM. The FWC decision The FWC analysed the relevant criteria as mentioned above in determining the issue of reduction or variation and made the following comments: The employer has the onus to demonstrate how they ‘ obtained’ the other acceptable employment; ‘ Obtains’ means the employer obtains other acceptable employment when it acquires or gets the employment by its conscious, intended acts; What constitutes ‘ acceptable alternative employment ’ is an objective assessment. The use of the term ‘ acceptable ’ is a clear indication that it is not any employment that meets the relevant standard; The assessment of ‘ acceptable employment ’ will include consideration of the following non-exhaustive list: the new work being of similar nature; the location of the new workplace and whether it is unreasonably distant; whether pay and conditions are comparable; hours of work; job security in relation to the new position; seniority if applicable; fringe benefits; continuity of service; the pay arrangements complying with award requirements; probationary periods; carer’s responsibilities; and family circumstances. The FWC also importantly highlighted that: if one of the persons out of a group accepted the alternative employment, it does not make the employment acceptable for the others in a group; an employee must meaningfully cooperate with the employer in exploring or considering options for alternative positions; and an employee’s prima facie entitlement to redundancy pay may be at risk if the employee refuses a role or position which is found to be objectively ‘ acceptable ’. In applying the above and considering the criteria, the FWC was not satisfied that Ms Hawkins redundancy pay should be reduced or varied, as explained below. Did the Applicant ‘obtain’ other employment for Ms Hawkins? The FWC was satisfied that Green Grocer did ‘ obtain ’ other employment for Ms Hawkins with HFM by: meeting with Ms Hawkins; meeting with the new employer HFM at the earliest opportunity; inviting HFM to meet with Ms Hawkins and other employees; encouraging the employees to be well-presented; and paying employees attendance at up to three meetings with the new employer. Was the employment ‘acceptable’?      The FWC was not satisfied however that the other employment at HFM was acceptable for the following reasons: Ms Hawkins suffered a significant reduction in her hourly rate of pay with her new employer HFM; She had also lost continuity of service, such that her service with Greener Grocer did not carry over to her service with her new employer (which could impact on, for example, entitlements to parental leave and notice of termination); and She missed out on her entitlement to pro-rata long service leave due to her service resetting with her new employer HFM. Employer’s application to vary redundancy pay declined The FWC declined the employer’s application to reduce or vary the redundancy payment and ordered that the employer pay to Ms Hawkins the full amount of her redundancy pay. Get help from an employment lawyer The above illustrates that the issue of reducing or varying redundancy pay can be complex and requires a determination from the Fair Work Commission. If your employer has unilaterally decided to vary or reduce your redundancy pay, or is requesting that you agree to a variation, you should urgently seek legal advice. Even if you are agreeable, with your employer, to reduce your redundancy pay, it is important to seek legal advice first to ensure you protect any other entitlements you may have. If you have an employment law matter and you’re looking for advice and assistance, Hall Payne’s expert advice, across the country, can help. You can either get in touch directly with Indi Gunadas a (Hobart office) or contact our head office for a referral to a lawyer at any one of our other offices. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2021/november/reducing-redundancy-pay/ Mon, 01 November 2021 00:00:00 Unions have a proud history in Australia of fighting for and winning improved rights and conditions for their members and for workers more generally. At Hall Payne, we think it is integral that these victories are continually recognised and celebrated so that society continues to appreciate the key role unions have played in Australia’s history; not just for workers but for their families and their communities. History of Unions The original goal of the Australian Labour movement was effectively, to improve the lives of working people. This centred on issues like: ending child labour practices; improving workplace safety; increasing wages and conditions; raising the standard of living; and reducing working hours. It’s important to remember that when we talk about “unions”, we’re not only talking about the registered organisation; we’re talking about all the individual members too. Unions battled and fought hard for the eight-hour workday, during a time when it was standard to work 14-hour days, six days a week with no sick or holiday leave. We have come a long way since the 1800’s. Unions today work with employees and employers with industrial disputes, collective bargaining, negotiating enterprise agreements, maximising workplace health and safety and ensuring workers are given entitled paid breaks, leave and working conditions. What unions are doing for you today A fair go In the 1970’s the Unfair Dismissal Protection originated from the idea of a “fair go all around” where the union took a case on behalf of a worker who was unfairly dismissed from their employment . Unions have always campaigned for laws that reflect the notion and principles of a ‘fair go’. For unfair dismissal, it means that an employer must have a valid reason to dismiss an employee and the law now states that the dismissal cannot be ‘harsh, unjust or unreasonable.’ This is not only a right for union members. This is a hard fought for right for all workers. Looking after working parents – paid parental leave When workers become new parents, the least of their worries should be about work. Unions worked with the Gillard government to introduce paid parental leave in 2010 which entitled working parents of children born or adopted from 1 January 2011, to a maximum of 18 weeks of paid maternity leave and up to two weeks of paid paternity leave. Family and domestic violence leave In 2018, an Australian Council of Unions led case brought about five days of unpaid leave for workers experiencing domestic violence. This will help save lives and bring stability to affected Australians. The union movement continues to campaign for paid family and domestic violence leave, a campaign that Hall Payne supports. Hall Payne has its own scheme of paid leave for its employees. Getting paid what you deserve Collective bargaining is a process of negotiation between employees and employers in relation to agreements aimed at regulating working salaries and conditions. In the 1990’s, enterprise bargaining under legislation was introduced which enabled workers and their unions to negotiate pay and working conditions at the enterprise level. The legislation now has a range of protections in relation to the bargaining and approval of such agreements. The Australian Bureau of Statistics indicates that collective bargaining undoubtedly produces better wages than individual agreements or where employees are under modern awards. Advocating for workers during a pandemic Unions have been closely working with governments (state and federal) during the COVID-19 pandemic to ensure workers’ rights continue to be upheld. The introduction of JobKeeper legislation incorporated changes to employment arrangements, such as reducing work hours. Certain awards were varied through the Fair Work Commission to facilitate and promote flexibilities to working arrangements and introducing pandemic leave entitlements. Unions campaigned for the introduction of a special wage supplement for workers stood down due to the pandemic, which was eventually adopted by the Government. Unions continue to campaign for new protections like paid vaccination leave . The value of joining a union Union members undoubtedly have better access to justice and fairness when they are wronged, compared to non-union members. Since the pandemic, union membership has increased and for good reason. During tough economic times and periods of global uncertainty, unions do not back down. They continue fighting and advocating for all Australian workers to be supported and for employers to uphold and maintain the principles of workplace laws. Unions are a powerful and collective voice that help protect everyday working Australians and fight for fairness more broadly in society. The key functions of the union include: Being an advocate for workers; Working with employers and management to help resolve workplace issues; Ensuring employers meet their minimum obligations; Investigating any breaches of workplace and discrimination laws; and Fighting for better working conditions. Joining a union today gives you access to working collaboratively with union representatives who are on your side when you need them, along with: improved leave entitlements; increased pay; better working conditions and working hours; and more. They will work diligently to ensure you receive your rights and entitlements. Your union membership ensures advocacy, support and representation in situations of: bullying; harassment; unfair dismissal; underpay of wages; or any other violation of your workplace rights. The best part – the fees are low and tax-deductible. In a time when you feel wronged, you know your first point of call is your union. They will recognise your workplace issue and advocate for you. Today’s article was researched and written by Hall Payne Research Clerk, Arijana Murselovic . Need help with a workplace issue? If you're facing issues in the workplace including unfair dismissal, discrimination, award breaches or workers compensation concerns just to name a few, you should contact your union or you can contact a Hall Payne lawyer to ensure your rights are protected. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2021/october/benefits-of-unions/ Mon, 25 October 2021 00:00:00 One of the most common enquiries that we receive from clients who have been charged with a criminal offence is whether they will have a criminal record at the conclusion of the proceeding. The recording of a conviction (a criminal record) can create difficulties and barriers in areas of employment, international travel, rental applications, and even the ability to purchase insurance policies. In some instances, it doesn’t matter what type of offence you are convicted of; a criminal record of any kind may hinder or deny significant opportunities. Once a conviction is recorded, it is permanent, unless the conviction is “spent” or “expunged” . Considerations for determining whether to have no conviction recorded A court has the discretion to not record a conviction when sentencing a person who has pleaded guilty (or is found guilty) of a criminal offence. Section 12 of the  Penalties and Sentences Act 1992  (Qld) details the matters that must be considered. Matters that must be considered, amongst other things, include: the nature of the offence; the age and character of the offender; the impact that recording a conviction will have on the offender’s economic or social wellbeing; or chances of finding employment. Nature of the offence The general rule is that the chances of a conviction being recorded are higher if the offence is serious. Minor offences, or offences lower in scale (determined by the maximum term of imprisonment or penalty), are more likely to result in the court exercising discretion to not record a conviction. In examining the nature of the office, the court needs to consider: whether violence was used, and to what extent; whether there was an abuse of trust or exploitation of another; the likelihood of the offender re-offending; and the type of offence (for example, sexual offences are more likely to result in a conviction being recorded). Age and character Those who can show a history of obedience of the law and can demonstrate continued contribution to society or their community through employment, volunteering or other means, are viewed more favorably by the court when determining whether a conviction should not be recorded. So too, young offenders or senior offenders with limited or no criminal history. An offender with a dated or limited criminal history is more likely to persuade a court to not record a conviction than an offender with an extensive and recent criminal history. Employment and economic and social wellbeing The existence of a criminal record is, as a general rule, likely to impair a person’s employment prospects. As a result, courts generally give great weight to the impact that the recording of a conviction will have on an offender’s employment and wellbeing. For the court, it is a balance of public interest (the potential public harm that might result from the courts permitting concealment of a person’s history of wrongdoing) and rehabilitation (enabling a person to continue being a productive member of society). Simply pointing to a possible detrimental impact on future employment prospects usually won’t be enough to persuade a court not to record a conviction. You would generally need to be able to explain why and how the recording of a conviction would impact your employment and economic wellbeing. If you are required to complete criminal record checks to work in your industry, or you work in a regulated profession (such as nursing, law or medicine) the recording of a conviction may impact your ability to either gain employment or remain employed or registered. Do I have to disclose an offence for which no conviction was recorded? If a conviction was not recorded, that does not mean that you may not be required to disclose it. For example, nurses, lawyers and doctors are generally required to notify the relevant professional body of any offence for which a plea of guilty was entered, regardless of whether a conviction was recorded. You should always read the question asked of you very carefully and if you have any doubts at all about how to answer it you should seek legal advice as soon as possible . Can I appeal the recording of a conviction? A decision by a court to record a conviction can itself be the subject of an appeal, in addition to any penalty ordered against you. There are very short and strict time limits to commence an appeal, and you should seek legal advice immediately if you have concerns about a conviction being recorded against you. Get help from a criminal lawyer The factors to be considered by a court in determining whether to record a conviction are wide and varied. If you’ve been charged with or convicted of a criminal offence and you need advice or assistance, you should contact the criminal law team at Hall Payne Lawyers. All of our criminal lawyers are well equipped to give you the necessary advice. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: Does my criminal record stay with me forever? Criminal charges in Queensland; what happens at my first court date? Detained for police questioning (Qld) https://www.hallpayne.com.au/blog/rss/blog/2021/october/no-conviction-recorded/ Mon, 18 October 2021 00:00:00 No matter how much you love your job, going back to work after parental leave can be a scary prospect. The main concern for most parents is how to manage competing work and family responsibilities but some employees also face the prospect of their job changing or being made redundant before they return to work. So, what obligations does the employer have and what rights do you have, as an employee returning after parental leave? What are your rights while on parental leave? Changes to your position when on parental leave You are entitled to return to the position you held before starting parental leave. If you transferred to a safe job or reduced your working hours because of your pregnancy, your employer must return you to the position you were in before those changes. If your employer makes a decision that will have a significant effect on the status, pay or location of the position you occupied before going on parental leave, your employer is required, by the Fair Work Act, to take all reasonable steps to give you information about the change and discuss its effects with you. Your employer must return you to an available position you are qualified for and which is the nearest in status and pay to the position you held before starting parental leave if your position no longer exists when you return. Redundancy and termination of employment provisions It is unlawful for your employer to make your position redundant, terminate your employment or take other kinds of adverse action against you because you are pregnant, have taken or propose to take parental leave. It is also discriminatory for an employer to: select employees on parental leave for redundancy using criteria employees on parental leave are less able to comply with and which is unreasonable, e.g. selecting employees who have achieved the lowest sales in a period in which you are on leave; treat employees on parental leave during a redundancy process, differently from other employees e.g. by offering redeployment only to employees who are not on leave. If you are covered by a Modern Award or Enterprise Agreement , your employer needs to follow the consultation provisions which usually require consultation with affected employees before making an employee redundant. Where this has not occurred, it will not be a genuine redundancy, even if there are other reasons which make the redundancy genuine and you may be able to bring a claim of unfair dismissal . You have entitlements under the Fair Work Act, to redundancy pay and notice of termination if your position is genuinely redundant. The Modern Award or Enterprise Agreement may also require your employer to take steps to redeploy you to an alternative position instead of terminating your employment. Communication while on parental leave You can work up to ten days during a period of parental leave to ‘keep in touch’ with your workplace. This is a good way to ensure that you stay in touch with what is happening at work and keep your skills updated. You are not under any obligation to attend work during your parental leave. If you work during your parental leave, you must be paid for it. What are your rights when returning to work from parental leave? Changes to starting or finishing times If you need to pick up and drop off kids at childcare, you may need to start work a little later or leave a little early. Many employers are happy to accommodate this sort of flexibility, particularly if you work in a job where you are expected to do work out of ordinary hours from time to time. You should approach your employer and explain the reasons your time at work needs to change. Changes to days of work If you need to return to work part-time when you had previously worked full-time, you should discuss the change with your employer in advance of your return to work, as there may be other arrangements which need to be put into place to make your request work; for example, employing someone to job share. Working from home If your job can be performed at home, you may request that you work from home some or all of your days of work. If changes to your hours or location of work are agreed, it is a good idea to record everyone’s understanding of the arrangement in writing. You could send an email to your employer explaining your understanding of what’s been agreed. If you do not want the arrangement to be permanent, ensure you record in writing that the agreement is for a specified period of time. Otherwise, you may lose your right to revert to your original hours or work location. If you continue to work the same number of hours, even if you perform work at different times, your pay should not change. However, if you reduce your hours, your pay and entitlements to leave will reduce accordingly. Does my employer have to agree to my request? The Fair Work Act requires employers to genuinely consider a request for flexible working arrangements in particular circumstances. If you have 12 months’ continuous employment or are a regular casual employee, you can make a request for changes to your working arrangements if you are (among other things), the parent of a child who is school age or younger. The request must be in writing, explain what you would like changed and the reasons for the request. You must be informed of your employer’s decision about your request within 21 days of making the request. Your employer may refuse your request on reasonable business grounds. There is no avenue under the Fair Work Act to challenge a refusal that purports to be on reasonable business grounds but where the grounds do not actually exist. However, the refusal may be unlawful discrimination where: employees in materially similar circumstances but without family responsibilities are granted flexible work arrangements; or if your employer has a rule that it does not allow any flexible work arrangements, the rule is unreasonable and people with family responsibilities are less able to comply with the rule. Taking leave to care for sick children You can access your accrued personal carer’s leave to care for a sick child. It is unlawful for your employer to take adverse action against you for taking personal carer’s leave. Maintaining breastfeeding If you need to breastfeed or express milk at work, your employer should provide you with a space in which to do so comfortably and privately, a place to store breastmilk and sufficient breaks to enable to you to breastfeed or lactate. In most circumstances, a failure to provide these facilities will amount to unlawful discrimination. Get help from an employment lawyer If your employer is attempting to make, or has made, your position redundant, it is important to get advice from your union or a lawyer experienced in employment law, as soon as possible as there are strict time limits for bringing claims relating to termination of employment and redundancy. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2021/october/work-after-parental-leave/ Mon, 11 October 2021 00:00:00 In Australia, certain protections are only afforded to workers if they were part of an employment relationship. For example, an employment relationship must have been entered into by a worker before the Fair Work Act will afford that worker protection from unfair dismissal . Given this, unpaid workers often ask: Am I actually in an employment relationship? A recent decision of the Fair Work Commission has again considered whether unpaid work constitutes employment. It is a timely reminder of the factors that workers must consider when determining whether they are entering into, or have entered into, an employment relationship. Background In Barbour v Memtaz Derbas , Mr Barbour was engaged by Derbas Lawyers to assist with legal work on an unpaid basis. Mr Barbour had no fixed days of work, chose his own hours and breaks and worked other jobs when he was not working for Derbas Lawyers. After approximately 14 weeks, Mr Barbour asked a representative of Derbas Lawyers when he could transition from being an unpaid worker to being paid for his work. The following day, Derbas Lawyers informed Mr Barbour that the firm was no longer able to offer him any further work, whether it was paid or unpaid. Mr Barbour filed a claim alleging that he had been dismissed from employment. Derbas Lawyers objected on the basis that Mr Barbour was not an employee and therefore could not be dismissed. When does an employment relationship exist? In the decision, the Fair Work Commission stated that an employment relationship exists only if a contract of employment has been formed. A contract of employment, the Fair Work Commission said, exists when: the parties have reached an agreement as to the terms of the contract; the agreement involves provision of ‘consideration’ by each party (such as payment for hours worked); the agreement is intended by the parties to be legally enforceable; and the terms of the agreement are certain and complete and there is no element of illegality or any other factor that would render the contract void. The Fair Work Commission indicated that unpaid internships and work experience do not constitute employment when: the placement is mainly for the benefit of the worker rather than the business; the periods of placement are relatively short; the person is not required to or expected to do productive work; and there is no significant commercial gain or value for the business, derived out of the work performed by the person. In Mr Barbour’s case, the Fair Work Commission found that no agreement on the terms of the contract had been reached. Further, factors against there being an employment relationship included that: although the parties may have discussed the employment of Mr Barbour in the future, the parties had not agreed on a future date for Mr Barbour to be paid or payment to commence; Mr Barbour was not expected by Derbas Lawyers to work on any particular day; Derbas Lawyers did not need or advertise for staff; although Derbas Lawyers trained and supervised Mr Barbour, this was not sufficient to equate to consideration for work; Mr Barbour’s behaviour in wearing attire appropriate in Derbas Lawyers’ office could be indicative of work experience and not necessarily employment; and Mr Barbour received the significant benefit of the relationship and Derbas Lawyers did not obtain any significant commercial gain. For those reasons, the Fair Work Commission held that no employment relationship had been formed. Mr Barbour was thus not entitled to the protection he sought by lodging an unfair dismissal claim , as he had not been dismissed from employment. Conclusion Although the Fair Work Commission acknowledged that as Mr Barbour’s experience grew “ there would come a tipping point at which he morphed from a volunteer to an employee ”, that point had not occurred, despite Mr Barbour working for fourteen weeks. This case demonstrates the difficulties unpaid workers may face in seeking protection from unfair dismissal. Unpaid workers are often excluded from such protection, particularly if they have not agreed to work on particular days and the business they work for does not obtain a significant commercial gain from their work. Even if unpaid workers wear appropriate business attire and discuss the possibility of future paid work with their supervisor, this will not necessarily mean that they will be classified as an employee. Get help from an employment lawyer For these reasons, it is essential that you are clear about the terms of a working engagement that you are entering into or are currently in. We would be happy to provide you with advice in relation to your working engagement and help you understand whether you are part of an employment relationship. Today's article was researched by  Research Clerk, Billy McEvoy  and written by employment lawyer, Tim Grellman . You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: I've got a new job. What should I be looking out for in my employment contract? I have a twelve-month employment contract. Can I terminate it early? Major changes for casual employees in 2021 https://www.hallpayne.com.au/blog/rss/blog/2021/october/unpaid-work/ Sun, 03 October 2021 00:00:00 Despite a health practitioner’s best efforts, sometimes conditions may still be imposed upon their registration by a Health Practitioner National Board via the Australian Health Practitioner Regulation Agency (AHPRA) or the Office of the Health Ombudsman (OHO) in Queensland. Having conditions placed on your professional registration is a daunting prospect, as failing to comply with conditions can have serious consequences for your practice and continuing employment. It is vital for health practitioners to be aware of their obligations surrounding compliance with their conditions, to ensure that when the time comes for review of the conditions, they are best placed to successfully argue that the conditions are no longer required to protect the public. What kinds of conditions can be imposed on my registration? Conditions can be placed on a health practitioner’s registration for health, conduct or performance reasons. This means that there is a wide variety of conditions that might be imposed, depending upon the circumstances of the complaint. Whilst not an exhaustive list, conditions can include requirements for the practitioner to: undergo further education; attend treating medical practitioners; undergo alcohol or drug testing; have their rights to administer medications limited; require their place of practice to be approved; require their practice to be supervised; or undergo mentoring. When conditions are imposed, they will appear against your name on the register of practitioners. The only conditions which do not, are those that relate exclusively to health. For how long do conditions remain on my registration? The regulator will set a review period for your conditions. Standard review periods can range from three to twelve months, sometimes more. You cannot apply for review of your conditions outside the review period unless there is a material change in your circumstances. This means that your conditions will generally remain in place for the full period assigned by the regulator. After that period ends, you can apply to have the conditions adjusted or removed. It is important to note that your conditions will not be removed unless you formally request a review of them. Even if you ask the regulator to review your conditions, the regulator may refuse an application if they believe that the health practitioner remains a risk to the public in some way. Strict compliance with the terms of your conditions can assist in having your conditions successfully reviewed when the review period ends. Obligation to comply with conditions and regulatory action for non-compliance It is the health practitioners’ personal obligation to comply with their conditions. Conditions can often be confusing and health practitioners can sometimes find them quite onerous to comply with. Compliance is strictly enforced. You might be considered non-compliant for doing something that the conditions prohibit, or if you fail to provide information requested within the required time-frames. Even a failure to return forms on time is considered non-compliance. Failure to comply with conditions or requests for information may be seen as a refusal to engage in the process. Should you fail to comply with conditions, the regulator will provide you with a show cause notice requesting an explanation of your non-compliance. Often, non-compliance can arise due to a misunderstanding of your obligations. However, persistent episodes of non-compliance are treated seriously by the regulator. These can lead to relevant action being taken against you which at its most serious, could include being referred to a panel or tribunal for professional misconduct . Frequent episodes of non-compliance can also impact a health practitioners’ application to review their conditions, and may delay a successful review or lead to refusal of the practitioners’ application. Seek legal advice from a health lawyer Having conditions imposed on your registration can be confronting, and confusing. Considering the importance of complying strictly with your obligations, it is important to seek legal advice early if you have any concerns and to assist with your application for review. Hall Payne has extensive experience in helping health practitioners with AHPRA and other health regulatory matters, and are well placed to provide advice on compliance and the review process. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: Making statements over the phone to AHPRA AHPRA framework to manage vexatious complaints against health practitioners Health practitioners’ obligations to continually update National Board Immediate action against health practitioners https://www.hallpayne.com.au/blog/rss/blog/2021/september/health-prac-conditions/ Mon, 20 September 2021 00:00:00 Hall Payne Lawyers recently won a case for pilots at Cathay Pacific Airways, with the Fair Work Commission deeming it “ fundamentally wrong ” for Cathay Pacific to selectively apply the terms of the enterprise agreement, “ Cathay Pacific Airways Limited Australian Based Aircrew EA 2020” ( EA ) and deny recently transferred pilots their long service leave entitlements. Background Prior to 2020, the applicants were Hong Kong based pilots who had between 10 to 30 years of service with Cathay Pacific. Between 1 April 2020 and 1 July 2020, on successful application, each of the applicants transferred their home base from Hong Kong to Australia. Due to the emerging COVID-19 pandemic and drastically reduced international travel, the applicant pilots were stood down upon transfer to Australia. What was in dispute? The dispute arose when Cathay Pacific withdrew their offer for the applicant pilots to take long service leave to supplement their income whilst stood down. Cathay Pacific argued that the pilots' service was not sufficiently connected to their home base state (as required by state legislation) and they were therefore not entitled to long service leave under the EA. In reaching this view Cathay Pacific relied on the following factors: the applicant pilots entire service to date had been outside of their relevant home base state; and they had not performed any flying from their Australian home base. Cathay Pacific advised the pilots that they would be unable to access long service leave until they performed flying duties. The pilots disputed Cathay Pacific’s view that they had to perform flying duties in order to be entitled to long service leave and argued that the terms of the EA provided a more beneficial entitlement to long service leave (than the respective state legislation) and overrode the principles of the substantial connection test in the respective state legislation. The Cathay Pacific EA relevantly states (emphasis added):  16.10. Long Service Leave Scheme … 16.10.4.4. The determination of continuous service for the purposes of LSL will be in accordance with State legislation; that is, accrual will commence from Date of Joining (DOJ) with any of the Cathay Pacific Airways Ltd. group of companies as long as the requirements under State legislation for determining continuous service are met. The pilots sought to resolve the dispute through the EA’s dispute resolution procedure with Cathay Pacific, without success. During that process they engaged Hall Payne to argue the case before Commissioner Cambridge of the Fair Work Commission. Decision Commissioner Cambridge considered the Berri principles which govern the interpretation of enterprise agreements and found that the words “ accrual will commence from Date of Joining (DOJ) with any of the Cathay Pacific Airways Ltd. group of companies” conferred a benefit for the calculation of long service leave which would ordinarily not be provided by any State long service leave legislation. Whilst the four preceding clauses of the EA referred to the amount of long service leave and continuous service being determined by the relevant State’s long service leave legislation, Commissioner Cambridge found that the intention of the second component of subclause 16.10.4.4 departed from any connection with State legislation, and instead specified a commencement date with any of the Cathay Pacific Airways group of companies be used for the purpose of calculating the long service leave entitlement. Commissioner Cambridge rejected Cathay Pacific’s argument that the pilots needed to establish a significant or substantial connection between their service and home base state to be entitled to long service leave and found that the significant or substantial connection principle had been supplanted by subclause 16.10.4.4. of the EA. The Commissioner found that his interpretation of the EA was consistent with Cathay Pacific calculating the long service leave entitlements of pilots who had rebased to Australia prior to the COVID related standdown, using their commencement date with Cathay Pacific Hong Kong. The Commissioner concluded that Cathay Pacific had adopted a “fundamentally wrong” and “selective” approach to the clause: It was fundamentally wrong for Cathay to selectively apply the second component of subclause 16.10.4.4. of the EA such that those pilots who rebased as part of the 2019 rebasing and managed to undertake a small number of flights before being stood down, were granted long service leave yet it refused the applicants’ long service leave on the specious assertion that they had not established a significant or substantial connection with the relevant State’s long service leave legislation. The significant or substantial connection test was not applicable to any of the rebased pilots, all of whom were entitled to the benefit conferred by the second component of subclause 16.10.4.4. of the EA, irrespective of whether they performed a handful of flights or no flying duties at all. You can read the full judgment here . Get help from an employment lawyer  Hall Payne has a wealth of experience advising employees and unions in disputes about leave entitlements, including under enterprise agreements. If you require assistance with a breach of enterprise agreement or access to your long service leave entitlement, please do not hesitate to contact Hall Payne. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2021/september/pilots-lss-win/ Sun, 12 September 2021 00:00:00 Early in 2021, Sydney Trains made significant modifications to a fleet of around 500 light vehicles used by its service and maintenance employees. It is a requirement under road transport legislation in NSW that modifications carried out on a registered light vehicle must comply with the applicable vehicle standards – in this case, the Light Vehicle Standards Rules . There is also a prohibition in clause 84 of the Road Transport (Vehicle Registration) Regulation 2017 (the Regulation) on a vehicle with a “significant modification” being operated without a compliance certificate for that modification. Effect of the modifications on worker safety The nature of the modifications to the Sydney Trains vehicles meant the vehicles no longer complied with the Light Vehicle Standards Rules and had the potential to compromise the safety of occupants in the event of an accident – including, for example, by potentially impacting the proper deployment of airbags and restricting passenger leg room. ETU members at Sydney Trains were rightfully concerned that the modifications posed a significant risk to worker health and safety. While SafeWork NSW issued an improvement notice to Sydney Trains, the notice did not go so far as to prohibit the use of the vehicles. Exemption from Compliance with Light Vehicle Standards Rules Under rule 11E of the Light Vehicle Standards Rules (at Schedule 2 of the Regulation), Transport for NSW (TfNSW) has discretion to exempt any particular vehicle or class of vehicle from any requirement of the Light Vehicle Standards Rules . TfNSW exercised that discretion and granted Sydney Trains an exemption from compliance with the relevant sections of the Light Vehicle Standards Rules impacted by the modifications. On that basis, TfNSW claimed that the vehicles could be operated under the exemption until compliance certificates were issued. The Union and its members were justifiably concerned by the various safety risks that might arise from that approach and instructed Hall Payne Lawyers to seek to address the issue. Action taken by ETU to protect members and the public We wrote to TfNSW on behalf of the ETU seeking that the exemption be withdrawn. We argued that, while the exemption had the effect that the Sydney Trains vehicles did not need to comply with the Light Vehicle Standards Rules , it did not overcome the absolute prohibition in clause 84 of the Regulation. In response to our letter, TfNSW accepted our contention that the exemption granted did not operate to negate the need for modifications to be subject to a compliance certificate, as required by clause 84 of the Regulation.   TfNSW agreed to amend the exemption granted to the extent that where it purported to exempt Sydney Trains from the certification requirement, any such aspect of the exemption was withdrawn. It thanked us for bringing the Union’s concerns to its attention. It is clear now that the modified Sydney Trains vehicles cannot be operated on roads or road related areas until each vehicle has been inspected and a compliance certificate issued. Worker health and safety is core union business and we are pleased to have been able to assist the ETU in securing a significant win for the health and safety of its members at Sydney Trains. By considering and applying the relevant road transport legislation, we were able to assist the Electrical Trades Union to resolve the matter swiftly and without the need for litigation. https://www.hallpayne.com.au/blog/rss/blog/2021/september/etu-win-sydney-trains/ Sun, 05 September 2021 00:00:00 A 35-year-old stonemason, diagnosed with accelerated silicosis and a severe psychological adjustment disorder has been relieved of what the Judge has deemed an ‘illogical, unreasonable, and inconsistent’ dual process enacted by Parliament in 2002. The recent Supreme Court of Queensland decision of Coleman v Caesarstone Australia Pty Ltd & Ors [2021] QSC 125 (“ Coleman ”) found that the Personal Injuries Proceedings Act 2002 (Qld) (“the Act”) inadvertently failed some claimants. The express wording of the Act did not allow a claimant suffering from secondary injuries, such as a psychological injury resulting from a dust-related condition, to expedite the resolution of their claim. As a result, it had previously been presumed the Act applied to the secondary psychiatric injury, such that claimants were often obliged to deal with the pre-court procedures under the Act in so far as their psychiatric injury was concerned, even though they were not required to do so in relation to their primary injury, the dust-related condition. Background James sustained injuries as a result of exposure to respirable crystalline silica dust during the course of his employment for various employers between 2005 and 2018. Sadly, James’ life expectancy was significantly reduced as a consequence of his accelerated silicosis condition. His treating Thoracic Physician considered that within 4-5 years, he would need to be considered for a lung transplant. If successful, this procedure would see him have a life expectancy of about 6 to 8 years following the transplant. James developed a severe psychological injury as a direct consequence of the shortened life expectancy resulting from the condition. When attempting to commence a claim for his secondary psychological injury, it was contended the pre-court procedures under the Act were required to be completed for the secondary injury but did not apply to the primary injury, being the accelerated silicosis. James was confronted with a dual claims process, causing unnecessary delay and additional costs in pursuing his claim. Primary purpose of the Personal Injuries Proceedings Act 2002 (Qld) The Act outlines the pre-court processes and procedures required before a party can litigate a matter in the courts. The Act was passed by the Queensland Parliament with a primary purpose to: “assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury”. Section 6 of the Act deals with exclusions and section 6(3)(b) expressly excludes dust-related conditions. This sub-section was not originally passed as part of the Act.  It was inserted by amendment shortly after the Act was passed in 2002 and was designed to facilitate the early hearing and resolution of claims for people suffering from dust-related conditions. The retrospective removal of this hurdle for claimants was intended to deliver significant benefits to those suffering from dust-related conditions. it was intended to improve their access to justice and reduce any lengthy delays, cost and stress associated with pursuing a claim. Supreme Court statutory interpretation of the Act The question considered by the Supreme Court in Coleman was whether a psychiatric injury, which is secondary to and caused by a dust-related condition, is also excluded from the Act.    Her Honour Justice Bowskill applied a logical approach interpreting the intention of the Act. Her Honour found the Act does not apply to secondary psychological injuries arising from a dust-related condition, calling the dual process currently in place “ illogical, unreasonable and inconsistent ” . The Court’s interpretation in Coleman relieves future plaintiffs like James from the additional burden of a dual claims process associated with secondary injuries arising from dust-related conditions.   Conclusion Hall Payne Lawyers welcomes the Supreme Court’s interpretation of the Act in improving access to justice and reducing lengthy delays, costs and stress to workers diagnosed with dust-related conditions. If you have suffered injury or illness as a result of exposure to respirable dust in your workplace, including (but not limited to): coal dust; silica; asbestos, we can assist you with your compensation entitlements. This is an extremely complex area of law and having a leading law firm with a strong track record acting for victims of dust-related diseases and their families, will ensure you get all the compensation you deserve. We offer a free initial consultation and can act on a ‘no win no fee’ basis. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2021/august/dual-process-in-dust-cases/ Sun, 29 August 2021 00:00:00 In March 2021, changes to the Fair Work Act (‘FW Act’) came into effect which were the result of the federal government’s attempts at defining casual employment. Importantly, the new definition applies to former, current and future employees – it is retrospective. These legislative amendments together with High Court of Australia decisions have significantly altered the definition and entitlements of casual employees under Australian law. The changes brought by the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill (‘the Bill’), introduce the following into the FW Act: a definition for casual employee; and an entitlement for employers to off-set the payment of entitlements for mistakenly classified permanent employees against casual loadings paid; and a mechanism for the conversion of casuals into permanent employees; and an obligation for employers to provide a Casual Employment Information Statement produced by the Fair Work Ombudsman to relevant employees. Further, the Full Court of the High Court recently handed down their unanimous decision in WorkPac Pty Ltd v Rossato [2021] HCA 23 ( ‘WorkPac v Rossato ’), which has significantly altered the way in which the Courts will determine whether a casual employment relationship exists. Definition of casual employee The amendments insert, for the first time, a definition of casual employees into the FW Act . A casual employee is defined as: ‘a person who is offered and accepts employment on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work.’ The definition applies to employment offers both before and after the commencement date but not to workers who have either been converted to permanent employees or been the subject of a Court decision that determined the status of their employment as either casual or permanent. What does the Court consider when applying the ‘casual employee’ definition? The amendments provide for the criteria that can and cannot be taken into account by a Court when applying the definition. The following considerations are an exhaustive list of those that can be taken into account: Whether the employer can choose to offer or not offer work and whether the relevant worker can choose to accept or decline work; Whether the worker is given work according to the needs of the employer; Whether the relationship is described as casual employment; Whether the worker is or was entitled to a casual loading or a casual-specific rate of pay in the offer of employment, applicable award, enterprise agreement , or a Fair Work Commission order. Certain considerations are also expressly excluded from being taken into consideration by the amendments: A regular pattern of work by itself does not satisfy the definition; and The subsequent conduct of either the worker or employer after the offer of employment and acceptance of that offer. These considerations have been excluded in the wake of prior court decisions which involved casual employees successfully arguing they were in fact permanent. What is the off-set provision? The amendments also introduce a requirement for courts, when assessing claims by casuals claiming to be permanent employees, to reduce the amount payable for entitlements, by the casual loading that they were paid prior to the claim. The pathway for casual employees to convert to permanent Offer and request for conversion Along with a definition of casual employment, the Bill also amends the National Employment Standards to create a pathway for casual employees to be converted into permanent employees. To qualify, the relevant worker must: have been employed for at least 12 months; and have been working a regular pattern of work on an ongoing basis for at least the last 6 months; and be able to continue working the same pattern of work, without significant adjustment, on a full-time or part-time basis. If the above conditions are met, an employer must offer, or an employee may request (as long as they have not refused an offer or the employer has not issued a refusal notice in the 6 months prior), a conversion from casual to permanent employee. Employers, excluding small business employers (those with less than 15 employees), must make a written offer to the employee within 21 days of the employee meeting the above conditions and the employee must accept or reject that offer within 21 days of receiving it. Similarly, employees, including those employed by small business employers, may request conversion upon satisfying the above conditions and the employer has 21 days to provide a written response. Employees must not make a request within the 6 months after the commencement date of these new laws; the transition period. If the employee’s request is accepted, the employer must: discuss with the worker, the date at which they will convert (if not, it is the first full pay period after notice is given), their hours of work after conversion and whether their conversion is to full or part-time; and provide a written notice to the worker, of the above matters. Refusal notice An employer may, however, not be required to offer or accept the request of a casual who meets the conditions of conversion where there are reasonable grounds to do so, based on known or reasonably foreseeable facts: where the position will not exist within 12 months; or where the hours or work the casual would perform will reduce significantly within 12 months; or where the days and/or times the casual is required to work will change significantly. A refusal notice can only be issued in response to an employee request after consultation with the casual worker. Whether in relation to the requirement to offer or refusal of a request, the employer must provide written notice to the casual detailing the reasons for not permitting the conversion. Transition period Employers have 6 months after the commencement date of these changes, to comply with the above amendments. Casual employment information statement An employer is obligated to provide employees with a copy of the Casual Employment Information Statement detailing the above requirements and entitlements. Small business employers must provide their existing casual employees a copy of the statement as soon as practicable after the commencement date. All other employers must do so after the end of the transition period. The impact of the WorkPac v Rossato decision The recent High Court decision in WorkPac v Rossato , handed down on 4 August 2021, overturned a decision of the Full Court of the Federal Court of Australia ( Workpac Pty Ltd v Rossato [2020] FCAFC 84 ) which found that Mr Robert Rossato was not a casual employee. A unanimous full court of the High Court of Australia, in doing so, adopted a similar approach to the definition of casual employment to the Bill. This restrictive approach in effect means that many casual employees who may have had claims to permanent employment, no longer will. We explore this further below. Facts Mr Rossato was employed by WorkPac, a labour-hire company, to work as a production worker in mines operated by one of WorkPac’s clients, Glencore. Mr Rossato’s engagement with WorkPac consisted of six ‘assignments’ between 2014 and 2018. Upon his retirement in 2018, Mr Rossato, in the wake of a Federal Court decision dealing with another WorkPac employee in similar circumstances to himself ( WorkPac Pty Ltd v Skene (2018) 264 FCR 536), made a claim for entitlements on the basis that his engagement with WorkPac was as a permanent rather than a casual employee. The Full Court of the Federal Court of Australia found in his favour. WorkPac then appealed to the High Court of Australia. Issue The parties to the appeal were in agreement that a casual employee under the FW Act referred to an employee who has no “firm advance commitment from the employer as to the duration of the employee’s employment or the days (or hours) the employee will work”. The main issue in the case, however, was whether that phrase applied to the circumstances of Mr Rossato’s engagement with WorkPac. Decision In granting the appeal and ultimately deciding that Mr Rossato was at all times treated as a casual employee by WorkPac, the joint judgment drew an important distinction between a ‘firm advance commitment’ and a ‘mere expectation of continuing employment on a regular and systematic basis’. This distinction led the High Court to disagree with the approach taken by the Full Federal Court which has placed emphasis on the practical realities of the relationship after the employment commenced, like rostering, hours, pay and leave arrangements. Rather, the Court emphasized the primacy of the terms of the employment contract in the identification of any ‘firm advance commitment’, explaining that the certainty and legal obligation created by contractual terms met the threshold of ‘commitment’, as opposed to a ‘mere expectation’. In their subsequent analysis of the terms of Mr Rossato’s employment contract, the Court considered the absence of provision for work beyond each assignment, the ability for assignments to be varied or terminated with one hour’s notice, and the fact that Mr Rossato was entitled to refuse work, as factors indicating that WorkPac made no ‘firm advance commitment’ to ongoing work and that the employment was casual.   Equally, the Court downplayed the importance of the scope of the rosters according to which Mr Rossato worked; rosters which in fact scheduled work for an entire year. The Court rejected the submission that the rosters formed part of the contract and emphasized the lack of commitment to further work beyond these rosters and the assignments to which they pertained. Significance The High Court in essence, has significantly constrained the scope for casual employees to successfully argue that they were in fact permanent. Together, the Bill’s amendments to the FW Act and the WorkPac v Rossato decision provide a certain, albeit permissive, definition of casual employees and the method for determining if that definition is met. Departing from prior Federal Court decisions which emphasized the need to consider the employment relationship as a whole, the current state of the law now instead stresses the importance of the legally binding ‘commitments’ created by the employment contract in determining whether an employee is a casual or permanent one. Get help from an employment lawyer If you have concerns about the status of your employment (casual or permanent) or you have any other issues related to your employment, get in touch with one of the expert members of our employment and industrial law team. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2021/august/casual-worker-changes/ Mon, 23 August 2021 00:00:00 Put simply, no. Your employer cannot force you to have a COVID-19 vaccine. The Federal Government’s policy remains that vaccines should be voluntary and free. However, depending on the circumstances, your decision to remain unvaccinated may hold consequences for your employment. SPC, a Victoria-based canned food processor, recently announced that they will mandate COVID-19 vaccinations for their employees. Qantas CEO Alan Joyce and other employers have also indicated they will consider making the vaccine mandatory for their employees . On 6 August 2021, the National Cabinet met and discussed the issue of employers mandating that employees be vaccinated against COVID-19. Official government advice is that there may be situations where it is reasonable for employers to require an employee to be vaccinated. There are a number of factors to consider in determining whether an employer’s requirement that an employee be vaccinated against COVID-19 is reasonable – whether it is reasonable really depends on the facts and individual circumstances. Lawful & reasonable direction Employees are required to obey the lawful and reasonable directions of their employer. An employee’s failure to follow a lawful and reasonable direction may provide a valid reason for dismissal and amount to serious misconduct. Whether it will be reasonable for an employer to direct an employee to be vaccinated against COVID-19 will depend on the circumstances, including things like the applicable public health orders at the time, any requirements in an employment contract or industrial instrument (such as an enterprise agreement), the risk profile of the industry (e.g. meat processing) and the vulnerability of its client-base (e.g. aged care or disability sector). Work health and safety laws aim to ensure that the health and safety of workers and the public is not put at risk by work activities. Employers have a duty to eliminate risks to health and safety so far as is reasonably practicable. In high-risk industries in particular, employers may argue a requirement that employees be vaccinated against COVID-19 is reasonable in order to protect the health and safety of workers and others, and that this is necessary in order for the employer to discharge its health and safety obligations. Before an employer introduces a mandatory COVID-19 vaccination in the workplace, there is often a requirement arising in work health and safety legislation or an enterprise agreement for the employer to consult with employees about the matter first. In some workplaces, vaccination against other illnesses is already mandatory – abattoir workers in Australia are required to be vaccinated against Q fever and it is a common condition of employment (and in some states a requirement under public health orders) for certain workers to receive the annual flu shot. From 17 September 2021, the COVID-19 vaccination will be mandatory for all residential aged care workers . Cases A childcare worker in Queensland was dismissed for repeatedly failing to comply with her employer’s direction to submit to the flu vaccination. The worker lost her unfair dismissal case in the Fair Work Commission ultimately due to time limitations, however, Deputy President Asbury made the following observations on the employer’s mandatory vaccination policy: While I do not go so far as to say that the Applicant’s case lacks merit, it is my view that it is at least equally arguable that the Respondent’s policy requiring mandatory vaccination is lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason. Prima facie the Respondent’s policy is necessary to ensure that it meets its duty of care with respect to the children in its care, while balancing the needs of its employees who may have reasonable grounds to refuse to be vaccinated involving the circumstances of their health and/or medical conditions. It is also equally arguable that the Applicant has unreasonably refused to comply with a lawful and reasonable direction which is necessary for her to comply with the inherent requirements of her position, which involves the provision of care to young children and infants. In another recent decision , the Fair Work Commission concluded that an aged-care employee’s dismissal for refusing the flu vaccine on the basis of a purported anaphylactic reaction to a flu vaccine as a child was not considered harsh or unfair. The employer’s mandatory vaccination policy for employees in client-facing roles was found to be lawful and reasonable in the context where the employer’s elderly clients were particularly susceptible to influenza. The Commission determined the employee’s failure to comply with the employer’s lawful and reasonable direction was a valid reason for dismissal. While the Fair Work Commission is yet to consider a dismissal on the basis of an employee refusing a COVD-19 vaccine, it is cases such as these that provide guidance and insight into how the reasonableness of an employer’s direction to require an employee to get the COVID-19 jab might be determined. What is clear from these decisions is that broader public health considerations may outweigh individual considerations, particularly in high-risk industries. As always, each case will turn on its own facts, and it is important to seek advice. Discrimination Anti-discrimination laws prohibit discrimination against employees based on protected attributes. The introduction of a mandatory vaccination policy in a workplace may have unintended consequences for employees, particularly for some employees with disabilities. ‘Disability’ is broadly defined in the Disability Discrimination Act 1992 (Cth). A vaccination policy that mandates COVID-19 vaccination for all staff, including people with certain disabilities or medical conditions, may result in indirect discrimination. Where an employee refuses a vaccination on a protected ground, such as disability, the employer may need to make reasonable adjustments to accommodate the employee’s disability. It should be noted, however, that it is a defence to a claim of indirect discrimination if the discriminatory action can be shown to be ‘reasonable’ in the circumstances. In determining what is reasonable, a court may consider public health orders, the reasons for the mandatory vaccine requirement, the nature of the employee’s disability or medical condition, the nature of the work performed by the employee and whether the employee has close contact with vulnerable people, among other things. An employer may also seek to rely on s 48 of the Disability Discrimination Act which provides that it is not unlawful to discriminate against a person on the basis of their disability if the discrimination is reasonably necessary to protect public health. Get help from an employment lawyer If you have concerns about the reasonableness or fairness of directions provided to you by your employer, you should seek advice and assistance either from your Union in the first instance, or from a  lawyer experienced in employment law . You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2021/august/force-covid-vaccine/ Mon, 16 August 2021 00:00:00 Hall Payne Lawyers often acts for health practitioners facing proposed 'immediate action ' from Health Practitioner National Boards, the Australian Health Practitioner Regulation Agency (AHPRA) and the Office of the Health Ombudsman (OHO) in Queensland. Facing the prospect of having immediate action taken against their professional registration can be one of the most stressful times in a health practitioner’s professional career, and it can be difficult for health practitioners to determine who to turn to for assistance. Acting without receiving appropriate advice is fraught with risk and can have far-reaching effects. It is important for health practitioners in this situation to seek specialist advice early.  What is immediate action and what immediate action can be taken? When a notification is made to AHPRA or the OHO in relation to a health practitioner, this will be assessed. In the most serious cases, AHPRA or the OHO may propose to take immediate action against a health practitioner, to place restrictions on their registration on an urgent basis. The types of 'immediate action ' that can be taken against a practitioner include the suspension or imposition of conditions on the health practitioner's registration. The National Boards, such as the Medical Board of Australia (MBA) and Nursing and Midwifery Board of Australia (NMBA), amongst others, also have the power to accept undertakings from health practitioners. Why might a National Board or the OHO propose to take immediate action against a practitioner? National Boards and the OHO may propose to take immediate action against a practitioner if they reasonably believe that: because of the practitioner's health, conduct or performance, the practitioner poses a ‘ serious risk to persons’ , and it is necessary to take the action " to protect public health or safety" ; the registered health practitioner's registration was improperly obtained; the practitioner's registration has been cancelled or suspended in another jurisdiction (e.g. overseas); or 'the action is otherwise in the public interest' . An example provided in the legislation of where action may be taken in the public interest is where: " a registered health practitioner is charged with a serious criminal offence, unrelated to the practitioner's practice, for which immediate registration action is required to be taken to maintain public confidence in the provision of services by health practitioners" . Evidence required to take immediate action Given the serious nature of the actions that can be taken by Health Practitioner National Boards and the OHO and the serious consequences which may follow, it might be thought that the standard of proof would be high. and the evidence would need to be strong.  However, that is not the case and in some cases, immediate action can be taken against a practitioner based solely on unsubstantiated allegations. This is because the primary guiding principle of the governing legislation for the National Boards and the OHO is that the health and safety of the public are paramount. A practical implication of this is that action can be taken where there are serious concerns in relation to a practitioner’s health, performance or conduct, even when the evidence may not be strong, or where there may be competing evidence. The action taken in immediate action matters is also regarded as an interim action – action taken whilst a more detailed assessment or investigation is undertaken. Action can be taken in some cases, for example, based on criminal charges alone if they are sufficiently serious, even where there has been no determination of those charges.  Whilst a practitioner may indeed be innocent until proven guilty in the criminal courts, the National Boards and OHO do not need to await any guilty finding before taking immediate action to restrict a health practitioner’s registration in the meantime. The registration action taken would be reassessed at the end of the criminal process.    Timeframes Where a National Board or OHO proposes to take immediate action against a health practitioner, there is usually a very short timeframe for the practitioner to respond.  In some serious cases, the OHO is able to take immediate action without inviting a response from the practitioner first.  Seek experienced advice promptly - 1800 659 114 It is imperative that health practitioners facing proposed immediate action to restrict their registration seek advice promptly, to maximise their prospects of achieving the best possible outcome. We strongly recommend that practitioners do not respond to AHPRA or the OHO without first seeking appropriate advice . Whether immediate action is taken depends on the facts and circumstances of each case, and specialist advice is needed to assist health practitioners put their case forward.  We generally recommend written submissions, though in some cases, verbal submissions are made.  What happens next? If immediate action is taken to restrict a health practitioner’s registration, that action (eg suspension of registration) will remain in effect until the restriction is revoked by the OHO or National Board, or the decision is set aside on appeal. The practitioner can also apply to their National Board or the OHO for a review or variation of the immediate action decision if there is a material change in circumstances.   There is no fixed time period for any restrictions which are imposed. This uncertainty can be very difficult for practitioners. Immediate action restrictions will remain in place until other processes are completed by the National Boards or OHO, such as an investigation, or an independent performance and health assessment and reconsideration by the regulator. The consequences if immediate action is taken to restrict a practitioner’s professional registration can be very serious. They can impact on the practitioner’s ability to earn a living, as well as their wellbeing, reputation and good standing in the profession.    How often is immediate action taken?  Approximately 1 in 15 people employed in Australia is a registered health practitioner , regulated by AHPRA. In 2019-20, the National Boards, through AHPRA, took immediate action 580 times ! AHPRA’s annual report notes that this was more than a 50% increase compared with 2018-19, but the higher rate was in line with longer-term trends.  AHPRA reports that immediate action was taken in approximately 5% of cases, following a notification being made, which is approximately 1 in 20 cases.  In addition, in 2019-20, the OHO took immediate registration action against 34 registered health practitioners in Queensland , as well as 16 unregistered health practitioners.   Seek legal advice from a health lawyer By seeking legal advice early, registered health practitioners maximise their chances of achieving a good outcome when immediate action to restrict their registration is proposed. If you need advice or representation in relation to any type of professional discipline matter , including AHPRA matters, you should seek advice as soon as possible. Hall Payne Lawyers is highly skilled in advising and representing health practitioners in AHPRA and regulatory complaint processes to achieve the best possible outcome. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: Health practitioners’ obligations to continually update National Board AHPRA framework to manage vexatious complaints against health practitioners Nursing and Midwifery Board decision: AHPRA notification frivolous and vexatious https://www.hallpayne.com.au/blog/rss/blog/2021/august/health-prac-immediate-action/ Mon, 09 August 2021 00:00:00 If you are suspected of having committed a criminal offence and you refuse to voluntarily participate in an electronically recorded interview with police, it is possible that you may be detained for the purpose of questioning. This can be a confronting experience and it is important that you are aware of your rights, including your right to remain silent. Right to silence not affected You have the right to remain silent in a police interview when asked questions by a police officer. However, you must provide your name, address and, in some circumstances your date of birth, to a police officer if they ask you to. You may be charged with the offence of contravening a direction or requirement of a police officer if you refuse to do so. The right to silence (or right to remain silent), also known as the privilege against self-incrimination, is well entrenched at common law and in legislation, including the Police Powers and Responsibilities Act 2000 (Qld) ( PPRA ), the Evidence Act 1977 (Qld), and the Human Rights Act 2019 (Qld). If you are detained by police for the purpose of questioning, you still have the right to silence. You cannot be forced to answer a police officer’s questions beyond providing your identifying particulars. If you would like to know more about your right to silence, you can read our blog “Do I have to answer police questions?” When can I be detained for questioning by police? The PPRA provides a police officer with the power to detain a person to question them about: if the person is in custody after being arrested for an indictable offence, the offence that the person has been arrested for; or in any case, any indictable offence the person is suspected of having committed. If the offence being investigated is not an indictable offence, you cannot be detained for questioning in relation to it. For example, you cannot be detained for questioning in relation to a regulatory offence, or a simple offence such as trespassing or public nuisance under the Summary Offences Act 2005 (Qld). How long can I be detained for? You can be detained for a “reasonable time”, which must be less than 8 hours. What is reasonable will depend on various circumstances including (but not limited to): whether detention is necessary for the investigation; the number, complexity and seriousness of the indictable offences under investigation; whether the person is willing to make a statement or answer questions; the person’s age, physical capacity and condition, and mental capacity and condition; for an arrested person, any time spent questioning the person before the arrest; and the need to delay or suspend questioning for “time out”. You must not be interviewed for more than 4 hours out of the 8 hour period of detention. The police can make an application to a justice of the peace or magistrate for an extension to the detention period. You, or your lawyer, must be given an opportunity to make submissions about the extension before a decision is made. Get help from a criminal lawyer The criminal law team at Hall Payne Lawyers are well equipped to provide advice in relation to police questioning, detention and/or a criminal offence that you have been charged with. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful or interesting? You may also like to read: Criminal charges in Queensland; what happens at my first court date? A police officer gave me a Notice to Appear. What does that mean? Does my criminal record stay with me forever? https://www.hallpayne.com.au/blog/rss/blog/2021/august/detained-by-police/ Mon, 02 August 2021 00:00:00 As a Migration Agent, I see a lot of decisions being made to refuse or cancel Australian Citizenship for failure of the “character test”. Someone granted citizenship who later displays attributes which bring into question their “good character” can find themselves in circumstances where the government seeks to revoke their citizenship status. How is “good character” defined? An applicant for Australian citizenship who has turned 18 must be a person of “good character”. That term requires a decision maker (the person deciding an application for citizenship) to look at their “enduring moral qualities' to ensure that the individual will be someone who obeys Australian laws and upholds the commitments they make when taking the Australian Citizenship Pledge. The words “good character” are given their ordinary meaning and refer to a person’s enduring moral qualities, not just their good standing or reputation in the community.   Enduring moral qualities cover the concepts of: characteristics which have endured over a long period of time; distinguishing right from wrong; and behaving in an ethical manner, conforming to the rules and values of Australian society. All aspects of a person’s life may be relevant to consideration of their character. Do they respect and abide by the laws in Australia and other countries? Are they honest in their dealings with individuals and organisations, including Government departments? Have they ever exhibited violence towards another person or displayed reckless behaviour which might cause harm to others? The list goes on. It is also necessary to consider any other information that is relevant to a person’s character such as information provided by the person about his/her family life.  For example: raising children; being in a stable home environment; being responsibly employed; paying taxes; any community work undertaken; and any other matter that is relevant to an assessment of character in the circumstances of a particular case. “Good character” put to the test in this Tribunal matter A recent matter heard by the Administrative Appeals Tribunal (AAT) sheds light on just how serious the consideration of someone’s character is when deciding whether to grant citizenship or not.  The matter of HLJW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) on 29 March 2021 involved a man from Afghanistan who arrived in Australia on 29 May 2013. He was married to an Australian Citizen and obtained a partner visa on the basis of that relationship. He applied for citizenship in December 2017. This application was refused in October 2019 and he sought a review through the AAT. The AAT considered his traffic offences which included three speeding offences (2013, 2016 and 2019); two offences relating to the use of a mobile phone while driving (2014, 2018); and an offence of driving with a passenger under the age of 4 months, not properly restrained (2020). All those offences resulted in fines. However, of critical importance was the domestic violence offences which he committed in 2014. Those offences included stalk/intimidate intend physical harm (domestic) and common assault (DV) They resulted in an 18-month bond. These charges arose from an argument with his wife which escalated and resulted in her leaving with their then-infant child after calling the Police saying that he had threatened her with a knife. The Tribunal member affirmed the decision not to grant him citizenship noting: “The fact that the Applicant and his wife reconciled long ago and have expanded their family gives cause for optimism. They are unified in their desire to move forward. I am satisfied that in 2014 it could not be said that a person with his convictions was a person of good character. However, in seeking to downplay the seriousness and potential danger of the 2014 incident, I am still left with an uneasy doubt as to whether he is now a person of good character. I am not satisfied that the Applicant has a clear understanding of the nature of the problem. Regrettably, and despite his many positive attributes, I am not satisfied that sufficient time has passed, or that he has developed sufficient insight, such that it can now be said that he is a person of good character .” Penal clearance certificates and police checks More often than not, citizenship is refused or cancelled due to criminal offences. Applicants over 18 years of age will be required to provide penal clearance certificates from any overseas country they visited since their permanent visa was granted, if they have spent more than 12 months in total outside Australia and the time they have spent in any one country exceeds 90 days. The Citizenship application also includes character related declarations which the applicant must answer.  If they respond in the affirmative to any question, then further details must be provided. Get help with your application for an Australian Visa or Citizenship It is important to seek assistance from a Registered Migration Agent or Immigration Lawyer when applying for citizenship especially where issues of past behaviour, in particular criminal history, could have the potential to adversely affect the outcome.  There are of course other criteria for consideration when applying for citizenship, including the “residency requirement” and there are circumstances in which someone who doesn’t satisfy the criteria can still be granted citizenship. For all your citizenship and visa related questions, contact our Registered Migration Agent, Leanne Taylor . Find this article interesting or useful? You may also like to read: Who can help with your Australian visa application? Appeal options for visa applicants rejected due to failing the health requirement https://www.hallpayne.com.au/blog/rss/blog/2021/july/citizenship-character-test/ Mon, 26 July 2021 00:00:00 Grandparents usually play a significant role in a child’s life. In some instances, they may even be the de-facto primary caregiver to the child, for a number of reasons. Unfortunately, when relationships break down and children are involved, grandparents time with the children is often reduced or prevented completely. This blog provides general information on what the law is with respect to grandparent’s rights to access grandchildren. We will also discuss what financial assistance is available for grandparents who are successful in their application for sole parental responsibly. Grandparents’ rights under the Family Law Act Section 60B of the Family Law Act (1975) provides children the right to maintain regular communication and contact with those who are considered important to the child’s welfare, care and development. The Act specifically refers to grandparents in this category. Sadly, after the breakdown of a relationship or marriage grandparents do not have an automatic legal right to contact with, or spend time with their grandchildren as they previously may have. Therefore, a court will have to consider the child’s best interest in making any Parenting Orders for the child to spend time or communicate with the grandparent. In circumstances where there is little to no conflict between grandparents and parents, there is a greater likelihood that the court will determine that it is in the child’s best interest to have a relationship and spend time with their grandparent. If a grandparent has a good relationship with their own adult child, then it may be the case that the grandparent reaches an agreement with the adult child to see their grandchildren during the time they spend with that parent. This option is the most cost-effective and informal option. However, even if the grandparent has a good relationship with their own adult child, there may be friction with the other parent, which could lead to denial of access or reduction in access to the grandchildren. Further, if the relationship between the parents and grandparents sours over time (particularly after separation), then it may also lead to the grandparents’ time being ceased or reduced. Grandparents’ options to seek a Parenting Order A grandparent is entitled to initiate court proceedings for a Parenting Order or join as a third party to current family law proceedings. In certain situations, a grandparent can now apply for parental responsibility and care of the child where: the parent is unwilling or unable to care for the child: the parent lacks the capacity to care for the child; there is family violence . For a court to grant such an order, it will need to be satisfied that the child’s parent falls into one of these categories and can’t meet the needs of the child or that the child is at risk of physical or psychological harm or neglect in the care of the parent(s). In unfortunate circumstances where there may be evidence of child abuse, neglect and/or substance abuse by the parent caring for the child, then a court will more likely make an order in favour of the grandparents. The order may give the grandparents full parental responsibility or shared parental responsibility with the parent(s) depending on the evidence and severity of the alleged abuse/neglect. What does parental responsibility mean for a grandparent? Parental responsibility, either sole or joint, is a significant responsibility as it means the grandparent will have authority to make decisions for the child without requiring the consent of the parents. Grandparents can then make decisions about the grandchild’s care, welfare and development such as their grandchild’s religion, schooling and health. Although most disputes surrounding grandparents care are resolved before the courts, it is not always necessary to commence this expensive and prolonged process to gain time with a grandchild. Attending mediation to resolve any disputes Another alternative to consider may be for the parties to agree to attend a mediation where each party attempts to resolve the issue and reach an agreement that reflects the best interests of the child. This process can only be successful if all parties are agreeable to attend mediation with a view of resolving the dispute. It is important to note that the mediator should be qualified as a Family Dispute Resolution Practitioner (FDRP). Financial assistance for grandparents Grandparents who have full parental responsibility and care of their grandchildren can apply to Centrelink for financial payments to help provide care for the grandchild. Alternatively, if a grandparent has at least 35% care of the child, they may wish to consider applying for child support through the Child Support Agency.   Concerned about the welfare or safety of a child? If you have immediate concerns regarding the safety and welfare of a child, please contact the Department of Child Safety on 1800 177 135 (this operates 24/7). Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2021/july/grandparent-rights/ Mon, 19 July 2021 00:00:00 We recently acted for an employee who suffered a psychological injury at work in NSW following a fatality which the worker witnessed. The worker was successful with their worker's compensation claim and a work injury damages claim (common law claim). The injuries sustained by the worker were accepted as having left him with at least 15% whole person impairment. Internal and external investigations took place in respect of the incident at work and these assisted us to argue that the worker’s injuries resulted from employer negligence, leading the way to the common law claim. Finally, we were also able to secure total and permanent disability (TPD) benefits for our client under his superannuation policy.  We provided medical evidence that supported that he could not return to his usual employment, nor any other employment in respect of which he had education, training or experience as set out in the superannuation fund’s TPD definition. Background The case was complex and technical. Although the worker's compensation insurer accepted liability and was paying for weekly compensation and medical treatment expenses, the worker was sacked and blamed for the fatality. An agreement was reached with the employer regarding the alleged unfair dismissal and a Deed (written agreement) was entered into between the employer and the worker. The investigation into the workplace incident which led to the death of a worker It was necessary to become familiar with the technical workplace safety standards as we were required to provide assistance to the worker who was initially, unfairly blamed for the fatality during the employer’s internal investigation.  We provided assistance to the worker by reviewing the draft external investigation report and making appropriate comment on that report. Following the internal investigation, there was an external investigation by a government body and we supported the worker who was called as a witness in the successful criminal prosecution of the employer in respect of the death of the worker. Successful claims for workers compensation, common law and TPD benefits Following the conclusion of that the investigative process and court findings against the employer, we were able to pursue the work injury damages claim and fast track it to a successful conclusion in a relatively short period of time. Over $1,000,000 successfully secured for the injured worker Initially, the insurer argued that the employment Deed acted as a total bar to the work injury damages claim on the basis that the monies paid in respect of the unfair dismissal were classified as damages and we were able to counter that argument by citing recent case law on point. Further, they denied the employer had been negligent and they blamed the worker for contributing to the accident, whereas the criminal case against the employer clearly proved the employer was completely at fault. In the end, we reached an agreement with the insurer to pay the worker in excess of $1,000,000; the amount of compensation reflecting: the seriousness of his injury impacting on his ability to return to work; his relative youth; and the lack of contributory negligence. Contributory negligence means that the worker has caused or contributed to the injury by their own actions or failure to take necessary precautions. A finding of such will reduce the amount of damages payable to a worker. While initially the worker had been blamed for the accident, it became clear in the ancillary court findings in respect of the prosecution of the employer, that the employer only was at fault. Our client was particularly pleased with the result We were delighted to receive the following review from our client. Positive:  Professionalism, Quality, Responsiveness, Value We had a complex workplace personal injury matter which required the team to learn some highly specialised information in a particular field. They took the case on and learnt all the technical components with much enthusiasm. They secured the Total and Permanent Disability (TPD) claim for us, which was also quite complex. We also were able to settle Work Injury Damages (WID) with the former employer and were very pleased with our settlement amount which the team had worked hard to secure on our behalf. From start to finish, they were always on hand to discuss any of our questions and honestly treated us like part of the family. We would highly recommend working with Hall Payne. In summary If you suffer a workplace injury and you believe your employer’s negligence contributed to your injuries, further to lodging your worker's compensation claim, you should seek legal advice from a lawyer experienced in workplace injury claims as soon as possible. It is crucial that you are advised in respect of your entitlement to lump sum compensation from an early stage to enable your lawyers to investigate your entitlement to common law damages. We will arrange an assessment of whole person impairment as soon as appropriate, to ensure we maximise your chances of achieving the 15% threshold required to be eligible for a work injury damages claim. Get help from a worker's compensation lawyer Hall Payne Lawyers specialise in workers compensation claims and modified common law claims against employers. When you work with a Hall Payne lawyer, you will receive expert advice and support throughout your claim. We will engage liability experts, if necessary, based on the complexity of your claim. Whether you have a physical or psychiatric injury we will ensure your claim is put forward as strongly as possible. Our aim is to maximise the compensation and benefits you are entitled to. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2021/july/common-law-win-nsw/ Mon, 12 July 2021 00:00:00 Warning - this article refers to child abuse While everybody has a right to have their day in court, this is subject to the court’s inherent power to ‘stay’ proceedings if it is in the interests of the administration of justice. In this article, we will consider what is a ‘stay of proceedings’ and look at what a court might consider to grant an application for a permanent stay of proceedings in child abuse claims . The pre-court process for child abuse claims in Queensland In Queensland, a person who has suffered child sexual abuse and wants to claim compensation must participate in a pre-court process as set out in the Personal Injuries Proceedings Act 2002 (Qld) (“the Act”). The first step involves serving a Notice of Claim on the institution and/or individual the claimant believes is responsible for the injury, loss and damage they have suffered as a consequence of the abuse. The primary objective of the Act is to compel the parties to attempt to resolve the claim out of court. It is law in Queensland for parties to participate in an informal sit-down meeting in an attempt to reach a resolution. If no agreement is reached, only then can court proceedings be commenced. While it is within a person’s right to commence proceedings, a defendant can make an application to the court for a ‘stay of proceedings’ What is a stay of proceedings? A stay of proceedings is the court’s inherent power to essentially dismiss a claim. The granting of a permanent stay is made only in exceptional circumstances because it effectively brings to an end to litigation. It is up to the defendant to apply for a stay of proceedings. They must convince a judge that a case should not be heard. Generally, proceedings will be stayed if the defendant can establish that to continue the case would be manifestly unfair to the defendant, or where the continuation of the proceedings would bring the administration of justice into disrepute. What could a defendant argue to seek a stay of proceedings? A defendant party bears a heavy onus to prove to a court why they will be deprived of a fair trial. Defendants have argued they are unable to properly defend a claim due to the large delay in bringing the claim, or there being little evidence available. For example, key witnesses or the perpetrator may have died. In some cases, a perpetrator may have died without the allegations being put to them before their passing which may deny a defendant the ability to properly investigate or respond to the allegations. In some cases, the perpetrator may still be alive, but they have a medical condition which prevents them from properly participating in the proceedings. Defendants may also raise discrepancies in a plaintiff’s case as to the details of the abuse, including the time line of events and the nature of abuse. Arguments for a stay can also focus on issues with the reliability of evidence, given they are childhood memories which may be deemed by the court to be unreliable, or that memories and recollection have faded over time. What do the courts say? Some of the factors considered by a court to either grant or deny a stay of proceedings include: Whether important witnesses have died; Whether documents are available or have been destroyed; The length of delay in proceedings - the longer the delay the more likely important evidence is not able to be presented; That recollections fade and human recollection is fallible, such that the longer the period between the event and its recall, the greater the margin of error; That recollection of events which occurred in childhood are particularly susceptible to error; Given the passage of time means that there may be a lack of opportunity for the defence to properly explore the circumstances of the alleged offence. However, the courts have recognised that in child abuse claims a fair trial doesn’t equate to a perfect trial. Just because a court will be asked to determine proceedings without complete facts, does not make the trial unfair. If there is little to no documentary evidence or the absence of a witness through death or incapacity, this does not have the automatic consequence that a trial will be unfair or that a permanent stay of proceedings should be granted. A defendant party may argue that a case should not be heard because there is insufficient reliable evidence. Courts recognise that child sexual offences typically occur in private and are not dependant on documentary evidence to prove the allegations. The courts have also said that the fact of delay alone does not give rise to unfairness, and is not of itself a reason to grant a stay. The courts have recognised that survivors of abuse should not be punished merely by the delay in bringing the claim. Courts have also recognised that there may be discrepancies in a plaintiff’s case regarding details of the abuse and timeline of events, but that these matters may be explained by the plaintiff’s age at the time of the alleged abuse, the trauma they may have suffered and the passage of time. While there have been cases where a stay of proceedings has been granted due to the death of a perpetrator, there are instances where even if they have died, proceedings can still continue if the perpetrator was arrested and charged with the offence before their death, and where a claimant or key witnesses are available to be cross examined on the allegations. Are stay applications deterring survivors of child abuse from claiming compensation? Do not be deterred from bringing a claim for compensation. The onus is always on a defendant to convince a court the case is so exceptional that a court should grant a stay of proceedings. The courts have also recognised there is a strong public interest factor in hearing claims for survivors of l abuse. This is reflected in the government changing the laws to allow survivors to come forward at any time. There are also guiding principles for civil claims for child abuse which have been adopted by most states and territories, and some institutions, which focus on resolving claims out of court. The guiding principles were a recommendation by the Royal Commission into Institutional Responses to Child Sexual Abuse because it was recognised that civil litigation can be highly traumatic and has the potential to re-traumatise abuse survivors. While recognising that no amount of money can ever properly compensate a survivor of abuse, they are owed the dignity and respect of having their case heard and should not generally be denied the right to have their day in court.  Get help At Hall Payne Lawyers, we have a team who understand the difficulties associated with child abuse claims. Our lawyers are experienced at helping survivors access compensation for the harm caused by abuse. Our lawyers will work with you in a supportive and compassionate manner to make sure the compensation process is as simple as possible. If you would like to discuss your options regarding compensation for child abuse, do not hesitate to speak to our abuse law team who are more than happy to help. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful? You may also like to read: Achieving the best compensation for survivors of childhood abuse National Redress Scheme opens for victims of institutional child sexual abuse Emerging history of Launceston nurse’s acts of sexual abuse https://www.hallpayne.com.au/blog/rss/blog/2021/july/child-abuse-stay-proceedings/ Mon, 05 July 2021 00:00:00 On 12 May 2021, Queensland Parliament passed legislation which amended the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Act”). These changes will allow easier access to compensation for first responders and other emergency workers who sustain a post-traumatic stress disorder (“PTSD”) injury during the course of their employment. Hall Payne Lawyers welcomes this change to the legislation and the benefit it brings to those a ccessing compensation during a vulnerable and difficult time in their lives. What changes were made? The amendments to the Act include the insertion of new subdivision 3BA to deal solely with PTSD sustained by first responders and other emergency workers. The new amendments change the requirements for PTSD to be considered a work-related injury. All that is now required for first responders and emergency workers will be: a diagnosis of PTSD by a psychiatrist; and confirmation that the worker was employed at any time before the diagnosis, as a “first responder” or “eligible employee”. If those two requirements are met, then the PTSD will be presumed to be a work-related injury (“the presumption”). This removes the burden of workers having to prove their PTSD is a work-related injury. In the case of PTSD, the reliving of the incident and/or incidents can be traumatic in and of itself and can be incredibly distressing for workers. Who are considered first responders? The presumption will apply to "first responders" who are classified as the following particular workers: Ambulance officers; Police officers or recruits; Child Protection officers (authorised officers); Corrective Services officers; State Emergency Services members; Firefighters, including rural fire brigades and volunteer firefighters; Youth Justice staff members; Doctors and nurses working in emergency, acute, critical and high dependency care; Coal mine workers qualified to perform rescue functions at mines. For the presumption to apply, the first responder’s employment must have required the worker to respond to: incidents that are life threatening or otherwise traumatic; and for which time may be critical to prevent actual or potential death or injury to persons, or to prevent or minimise damage to property or the environment. Many of the above listed workers will fulfil this requirement by the very nature of their employment and their day to day work. Who are considered other eligible employees? Other workers eligible for the benefits of the presumptive legislation include those employed by one of the following government departments: Ambulance Services; Child Protection Services; Corrective Services; Fire and Emergency Services; Police Administration; and Youth Justice. Not all the above workers will be exposed to incidents which will give rise to PTSD and so a further requirement is imposed on this category of workers. The above employees will be eligible to the presumption where their employment requires them to experience ‘ repeated or extreme exposure to graphic details of traumatic incidents’ by any of the following circumstances: Attending the scenes of traumatic incidents; or Experiencing traumatic incidents as they happen to other persons; or Investigating, reviewing or assessing traumatic incidents that have happened to other persons. This category of employee will include Emergency Medical Dispatchers, and Child Protection workers for example, and other employees who will invariably be exposed to traumatic material. The effect of the amendments The result of the legislative amendments is that a significant hurdle to the acceptance of an emergency workers’ compensation claim for PTSD has now been removed. The presumption will apply if the above requirements are met (and those requirements will generally be easy for the injured worker to meet) unless it is proved that the PTSD did not arise out of or in the course of the injured worker’s employment. Studies have consistently shown that a significant percentage of first responders and emergency workers are at high risk of sustaining a psychological injury, including PTSD. These workers often put their lives and mental health on the line for the benefit of the general public and these amendments go a long way to ensuring that the process of making a claim for compensation and receiving the treatment they require is just that bit easier. Get help from a worker's compensation lawyer  If you require advice or assistance in relation to a work injury, please contact Hall Payne Lawyers. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2021/june/ptsd-claims-for-first-responders/ Mon, 28 June 2021 00:00:00 In certain family law proceedings (not all), an independent children’s lawyer (“ICL”) will be appointed to represent the best interests of your child. Your child will not be able to instruct the ICL nor choose the lawyer they want to represent them during your proceedings. The court has the power to appoint an ICL under section 68L of the Family Law Act (1975) , or upon the application of a child, an organisation concerned with the welfare of a child or any other party in the proceedings. An ICL is usually appointed by the court to assist in promoting the best interests of the child where family law proceedings involve: allegations of child abuse or neglect; high level of conflict between the parents; allegations made as to the views of the children and whether the children are mature enough to express those views; allegations of family violence; serious mental health issues existing in relation to one or both of the parents or children; and/or difficult and complex issues involved in your matter. This is not an exhaustive list and a court may appoint an ICL on other reasons. The role of an Independent Children’s Lawyer The primary role of an ICL is to provide an independent view on what decisions or arrangements are in the child’s best interests based upon the information available at the time. An ICL may also interview or speak with the child to ascertain the views of the child as well as the development level in the child. In deciding whether it is appropriate to interview the child, the ICL will take the child’s age into account. As a general guideline, if the child is attending high school, they will almost always be interviewed by the ICL whereas a child who is much younger and still in pre-school may not be interviewed.    As previously noted, the ICL does not take instructions from your child and is not the child’s spokesperson in court; section 68LA of the Family Law Act (1975) makes this clear. Accordingly, the ICL can make independent recommendations which are very clearly contrary to the child’s expressed wishes, views or opinions if those views or opinions expressed by the child are not in the child’s best interests.  To assist in determining the best interests for the child, the ICL may in addition to interviewing the child: speak to the child’s counsellors, school teachers and principals; examine documents from organisations such as schools, Department of Family and Community Services and Police; examine medical, psychiatric and psychological records of the children and their parents; question witnesses, including parents and experts, at the final hearing; arrange for a family report from a family consultant. Do the courts follow the ICL’s recommendations? The court is not bound to accept the ICL’s recommendations but the court must consider the evidence put forward by the ICL when making a final determination in parenting matters. However, given the independent nature of the ICL and the information available to the ICL through interviews with the child (where appropriate), speaking with school teachers etc, the court will give serious consideration to the ICL’s recommendations. Independent Children’s Lawyer costs In Queensland, Legal Aid Queensland is commonly responsible for making arrangements for the ICL, both in appointing the specific lawyer and in determining costs. However, Legal Aid Queensland usually cannot pay for all of the ICL costs and it is highly likely that the parties will need to contribute to the costs flowing from the appointment of the ICL. However, the court also has the discretion to make an Order that either one or both parties to the parenting dispute pay or contribute to the costs associated with the ICL representing the child, having regard to their capacity to do so. Conclusion It is not uncommon for a child to say one thing to a parent and another to the opposite parent, with the aim of pleasing one particular parent or both.   An ICL plays an integral role in family law proceedings as they independently determine what decisions or arrangements are in the child’s best interests and also assist the court and the parties in determining a particular course of action that will also promote the child’s best interests. More importantly, it enables the child to be involved in the decision-making process and facilitating the child’s participation in the proceedings when deemed appropriate. Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2021/june/icl/ Mon, 21 June 2021 00:00:00 Workers who have an accepted workers compensation claim in NSW , generally assume that they will return to work on “suitable duties” when possible and then progress to pre-injury duties when medically cleared to do so. Research has indicated workers can experience a delayed recovery if there is any unnecessary delay in returning to work. With this is in mind, what happens if an employer won’t provide an injured worker with suitable duties? What are suitable duties? Suitable duties are duties that take into account a worker’s injury, their ongoing ability to perform tasks, and duties that are designed to facilitate the worker’s return to work. When assessing what tasks to offer an injured worker returning to the workplace, the employer should consider, for example: the opinion of treating doctors; the worker's pre-injury duties; an alteration to working hours including the time duties are performed and for what duration; training opportunities; duties appropriate to the worker's skills, education and training; and any modified equipment that may assist. What does the law say about the obligation to provide suitable duties? Section 49 of Work Injury Management Act and Workers Compensation Act 1998 (NSW) (“ the WIM Act ”) outlines that an employer must provide suitable work/duties for an employee who was injured. This section goes further to state that the employer must, as reasonably practicable, provide duties that are the same, or equivalent to the employment that the worker was doing per-injury. However, this does not apply if the worker voluntarily left the employment or was terminated by the employer. It is important to note that it is an offence to dismiss a worker due to a work-related injury, within six months of them ceasing work due to that injury. Role of the insurance company and the State Insurance Regulatory Authority (SIRA) The insurer will assist with a worker’s return to work by establishing an injury management program. The insurer will consult with the worker, the employer, SIRA and treating doctors. SIRA is the government agency responsible for workers compensation. It deals with some types of complaints and attempts to resolve disputes between the insurer and/or the employer. SIRA has provided a document titled “ Guidelines for Workplace Return to Work Programs .” These guidelines outline the obligations of all parties involved in the return to work process. Among other things, the guidelines state that employers must: participate and cooperate in the establishment of an injury management plan for an injured worker and give effect to that plan at the workplace; comply with obligations imposed on the employer in the injury management plan written by the insurer; cooperate with the insurer in engaging assistance from a workplace rehab provider if workers face barriers in returning to work; and cooperate with the insurer in providing retraining or different job opportunities to an injured worker who is unable to return to their pre-injury job. Role of SafeWork NSW SafeWork NSW is the state government organisation that assists with ensuring various Work Health and Safety procedures are maintained and followed. SafeWork inspectors work within this organisation to ensure compliance with certain work health and safety procedures. SafeWork inspectors also have the responsibility of enforcing, where necessary, workers compensation laws in NSW. As a result of the above, SafeWork inspectors can make a determination and issue notices to the employer to provide workers with suitable duties. In order for this determination to be made, the SafeWork inspector would need to be satisfied that the employer has followed correct protocols and has done what is reasonably practicable to provide the worker with suitable duties. What if an employer fails to comply with Return to Work Guidelines? In the event that an employer has not complied with any of the above guidelines, the first step an injured worker can take is to contact the insurer to ask whether they can assist with resolving the dispute. The insurer may be able to discuss the issue with the return to work coordinator and the employer. The insurer may also ask that an injury management consultant assist to help the worker and employer optimise both health and work outcomes. If the worker believes the insurer has not been helpful in assisting them, the next step would be to proceed to raise the dispute with SIRA or SafeWork NSW. SIRA may be able to assist by contacting the employer and reviewing whether the employer can provide suitable duties to the worker. Role of the Personal Injury Commission in relation to suitable duties The Personal Injury Commission (“ PIC ”) has been established in order to assist in resolving workers compensation disputes between workers, insurers, and/or employers.  The PIC has the ability to deal with disputes under the WIM Act which includes issues with employers not providing suitable duties to a worker returning from an injury. Proceedings in the PIC are lodged by way of Application to Resolve a Workplace Injury Management Dispute. Proceedings can be lodged by the worker or their insurer. Matters will be listed before a delegate of the PIC and they will attempt to facilitate a resolution between the parties. The delegate could also direct that an injury management consultant conduct a workplace assessment or they could refer the matter back to SIRA to determine the dispute. If no resolution is reached, the delegate can deal with a suitable duties dispute by making a recommendation that ensures the employer complies with providing the worker with suitable duties. A party to the dispute must comply with the recommendation made within 14 days (or other specified time) or request that the matter be referred to a Member of the Commission. How Hall Payne Lawyers can assist The team at Hall Payne Lawyers understand that returning to work after an injury can be a difficult process. We know that the process can be further complicated when employers do not assist their employees in returning to work. Hall Payne Lawyers provide workers with legal advice about their rights and entitlements with regard to NSW workers compensation claims as well as assisting workers throughout the dispute resolution process. If you’re experiencing any issues with your worker's compensation claim, please get in touch with one of our experienced workplace injury lawyers. Get help from a worker's compensation lawyer  You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2021/june/suitable-duties-nsw/ Sun, 13 June 2021 00:00:00 In October 2013, a Canberra based self-employed woman took out an income protection insurance policy with TAL. After being diagnosed with cervical cancer in January 2014, she made a claim on her income protection insurance. Not only was the claim was denied by TAL, but they also cancelled the claimant’s insurance policy and advised her that she owed them $24,649.91 for a “breach of your duty of good faith”. The case came before the Federal Court of Australia The case of Australian Securities and Investments Commission v TAL Life Limited (No 2) [2021] FCA 193 came before the Federal Court of Australia (“FCA”) as a result of a referral from the Financial Services Royal Commission (2018) to the Australian Securities and Investments Commission (ASIC). The complaint has highlighted the lengths that TAL have gone to in the past to avoid paying out on insurance policies.   The FCA determined that it was TAL that breached its duty to act with “utmost good faith” under Section 13 of the Insurance Contracts Act based on a number of failings. Actions of the insurer that led to this case TAL engaged in a process referred to as “retrospective underwriting”. This is where information obtained in the course of assessing a legitimate claim, is utilised by insurance companies to look back in time to determine whether insurance would have been offered initially if the particular information had been disclosed or known to them. TAL utilised consent authorities signed by the insured individual to obtain her medical history. This was not for the purposes of assessing her claim but rather, to undertake an investigation to determine the validity of the policy. They did not inform her they were doing that. TAL then failed to provide the claimant with the opportunity to explain why she did not disclose certain portions of her medical history to them, which indicated she had suffered from depression. They also failed to further investigate or make enquiries of medical professionals (treating doctors of the claimant) about the true nature of her mental health, to determine whether this would have been a relevant factor in confirming the actual risk of insuring her. TAL lacked “decency and fairness” Chief Justice Allsop found that TAL had also breached its duty to act with the utmost good faith because its dealings with the customer lacked “decency and fairness”. TAL accused the customer of having acted without good faith, threatened to recover monies paid to her whilst their investigation was pursued and cancelled her policy without notifying her and providing her with an opportunity to address their concerns. His Honour noted: “policies of this kind providing income protection are very important to the economic and human wellbeing of people. The legislation is, after all, about human and commercial conduct, relationships and activity. How an insurer conducts itself in its claim handling may be said to be part of the benefits for which an insured pays.” ASIC Commissioner Sean Hughes stated: “ASIC expects those involved in handling insurance claims to act consistently with commercial standards of decency and fairness, ensuring claims are handled in a fair, transparent and timely manner.” Consumers put trust in their insurers and that is an important part of the relationship which relies on the core and long-standing principle of the duty of utmost good faith.  That doesn’t just refer to acting dishonestly or engaging in false or misleading conduct but includes failing to meet community expectations of decency and fairness. Conclusion If you’ve had an income protection or total and permanent disability (TPD) insurance policy cancelled or a claim declined, you should get legal advice about your options for having that decision reviewed.   Hall Payne Lawyers have experts in superannuation and insurance law who can undertake an assessment in relation to appealing rejected claims. Please contact us for further information about your options. Get help from a superannuation and insurance lawyer You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2021/june/income-protection-win/ Mon, 07 June 2021 00:00:00 Enduring Powers of Attorney allow you to appoint a person (“ Enduring Attorney ”) to act on your behalf should you be unable to do so. Any transactions with your Enduring Attorney (whether actively acting as your Attorney or not at the time) or a relation, business associate or close friend of the attorney including gifts, raises a presumption of undue influence. What is a presumption of influence? This means that it is presumed that a transaction by either the Enduring Attorney or a relation, business associate or close friend of the Enduring Attorney was brought about by the undue influence of the Enduring Attorney.   Unless it can be proved to the contrary, that transaction is liable to be set aside by a court. An example of where the presumption is raised is where a person appoints one or more of their children as their Enduring Attorney and makes a gift to the child. It is presumed that the child exercised undue influence on their parent so that the gift was made. It is a matter for the Enduring Attorney to discharge the presumption. To rebut the presumption, the Enduring Attorney must produce evidence to show that the donor of the Enduring Power of Attorney entered into the transaction as a consequence of his or her own “full, free and informed thought”; otherwise the transaction could be set aside. Interestingly, the presumption applies to a transaction even where an Enduring Attorney is not a party to the transaction and may have had no knowledge that the transactions was happening between a relation, business associate or close friend of the Enduring Attorney. The appointment of the Enduring Attorney is sufficient to raise the presumption. What elements are considered to rebut the presumption of undue influence A recent case authority has considered practical concerns of transactions between a Principal and Enduring Attorney. The matter of Birch v Birch Ors , dealt with a transaction between a Principal and an Enduring Attorney. In this case, the relevance of a parent/child relationship was considered by the Queensland Court of Appeal, where a son (who was Attorney to his mother) successfully rebutted the presumption of undue influence. The mother had transferred her interest in a farming property to her son, who was also the mother’s Enduring Attorney.  Whilst the son did not act as Enduring Attorney when the transfer of the property was completed (i.e. the mother signed the transfer herself), the presumption of undue influence was raised by another son as the transferee was the mother’s Enduring Attorney. Appeal court decision The Court of Appeal found that whilst there is a presumption of influence, there was nothing about this transaction, of which the son as Enduring Attorney had knowledge, which was not shared with the mother. She was able to decide whether it was in her interest to transfer the share interest to the son or not. The court additionally found that although there was a relationship of Principal and Enduring Attorney, their relationship of mother and son was relevant, and the gift could be explained by gratitude and affection by a mother for her son. The court also found that the Principal and her husband intended that their son inherit their shares in the family farm and that the Principal gifting her share prior to her death was consistent with their intention. Whilst a relationship of mother and son will not always displace the presumption of undue influence, it can be relevant and, in some cases critical, to a specific case. However, rebutting the presumption will almost always require independent legal, and generally, financial advice to the Principal, which was the case here. Although the son was successful in this appeal, it should be noted that the simple existence of a familial relationship between Attorney and Principal does not automatically rebut the presumption of undue influence.  It is always prudent for separate legal and financial advice to be obtained by the donor. Do you need legal advice? Caution needs to be taken when there are any dealings where an Attorney gains, or may be perceived to gain, a financial benefit from the Principal. If you are planning to give a financial benefit to your Attorney, or you are the recipient of a financial benefit, it is important you seek legal advice as soon as possible . You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2021/may/epoa-attorney-gifts/ Mon, 31 May 2021 00:00:00 Hall Payne Lawyers has won another case for the Construction, Forestry, Maritime, Mining and Energy Union ( ‘CFMMEU’ ). Recently, the Federal Court handed down a judgment in relation to employer Hay Point Services Pty Ltd ( ‘HPS’ ), breaching its enterprise agreement by requiring workers to perform unreasonable overtime of 455 hours a year. Background The Hay Point Services Pty Ltd Enterprise Agreement 2013 contained a clause (34.1) to deal with overtime. The clause provides that HPS: “may require an employee to work reasonable overtime, and the employee shall work such overtime as required.” HPS implemented a new roster which effectively required employees to work 455 hours of overtime per year, or 8.7 hours per week. The CFMMEU argued that this breached the overtime clause contained within the enterprise agreement as the additional hours could not be considered ‘reasonable’. Penalty imposed Justice Collier imposed a fine of $40,500.00 upon HPS, being 75% of the maximum penalty for a single contravention. Employer fined $40,500.00 for breach of enterprise agreement Justice Collier recognised the seriousness of the contravention and stated: “To that extent, the penalty imposed should be such as to warn other employers in the position of the respondent against engaging in such conduct.” Her Honour imposed the penalty as it should ‘reflect the seriousness of the conduct. Her Honour Justice Collier found that HPS “ran the risk”, in implementing a new roster, that it would contravene section 50 of the Fair Work Act 2009 (Cth) ( ‘FW Act’ ) and calculated a penalty accordingly. Section 50 of the FW Act provides that a person must not contravene a term of an enterprise agreement. In doing so her Honour followed the same approach in the prior case of CFMEU v Hail Creek Coal Pty Ltd (No 2) [2018] FCA 480 ( ‘Hail Creek’ ), also won for the CFMMEU by Hall Payne Lawyers . You can read the full judgement in Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd (No 3) [2021] FCA 282 here . In summary Similarly to Hail Creek, the employer was found to have acted irresponsibly in implementing a decision that breached the enterprise agreement and, therefore, contravened section 50 of the FW Act. Hail Creek was handed a similar penalty of $45,540.00. In both the HPS and Hail Creek cases, the judges highlighted the seriousness of the breach and that “taking the odds” is not a permissible act. If an employer does that and proves to have been wrong, it will pay the price with a heavy penalty. In fixing the penalty to be imposed upon HPS her Honour noted that Hall Payne Lawyers had sent a letter of demand warning HPS that it would breach the enterprise agreement if it implemented the roster change. HPS went ahead regardless. Get help from an employment lawyer If you require assistance with a breach of enterprise agreement, please do not hesitate to contact Hall Payne Principal in Industrial and Employment Law , Luke Tiley on 07 3017 2400 . You can also contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2021/may/hay-point-ea-breach/ Mon, 24 May 2021 00:00:00 The recent Queensland Court of Appeal decision of Peebles v WorkCover Queensland [2021] QCA 21 has seen an injured worker’s damages increase significantly from $764,052.92 to $967,052.92. The Queensland Court of Appeal found that the trial judge had discounted economic loss too heavily and underestimated future weekly loss. Background At the time of the injury, Mr Peebles (“ the Worker ”) was 38 years of age and employed as a truck driver. His employer, Kurtz Transport Pty Ltd (“ the Employer ”), had provided him with a prime mover which had a defective seat. Over a period of time, due to the jolting of the seat, Mr Peebles sustained an injury to his lumbar spine. Mr Peebles was incapacitated and unable to work as a truck driver or in any other industries in which he had experience. He lodged a workers’ compensation claim as a result of his workplace injury. Negligence proceedings issued in the Supreme Court The Worker initiated proceedings in the Supreme Court of Queensland, alleging negligence on the part of the Employer which led to his injury. The Court found that the Employer was negligent and turned its attention to calculation of compensation to be awarded. In those proceedings, the Worker claimed significant damages in relation to future and past economic loss. The claim for loss of earnings assumed that, but for the injury, he would have continued to work until 67 years of age, being some 29 more years. The defendant argued that the Worker’s pre-existing degeneration in his lumbar spine (evidence by radiological imaging) would have led to the Worker developing symptoms at some stage in the future, in any event. They argued that due to the likelihood that he would have suffered injury anyway, his damages should be significantly reduced. Medical evidence was provided about the nature of the Worker’s pre-existing injury. Dr Licina, orthopaedic surgeon, gave evidence that in his opinion, symptoms would have been ‘more likely than not to have occurred within 5 years of the subject accident.’ On the other hand, Associate Professor Fearnside, neurosurgeon, was of the opinion that the manner in which the Worker’s injury had occurred would not have been expected to be encountered in day-to-day living. He further noted that it was entirely possible that even with the pre-existing degeneration, the Worker may not have suffered any future pain or symptoms at all, were it not for the work-related events. The Supreme Court decision When determining the amount of compensation to be awarded to the Worker for both future and past economic loss, the trial judge formed the view that it was highly likely the Worker would have experienced a significant back injury in the future regardless. The judge awarded an amount of $1,200 net per week for 29 years, and the total was reduced by 50% to account for the possibility that an injury would have occurred anyway. The trial judge applied the same calculation of a 50% discount to the amount of past economic loss awarded to the Worker, despite the fact this was a period of some 5 years since the date of injury, in contrast to 29 years for future economic loss. In total, the trial judge assessed damages at $764,052.92. Decision appealed to the Court of Appeal The Worker appealed the decision of the trial judge in relation to the assessment of damages, arguing that the discounts applied were excessive. The Court of Appeal agreed with the Worker and found that it was incorrect of the trial judge to apply such a high discount to past economic loss, given that it was only a period of five years, and therefore a much smaller likelihood that a back injury would have occurred. The Court instead substituted a 10% discount to past economic loss. In relation to the award for future economic loss, the Court of Appeal found that although the 50% discount was high, it was open for the trial judge to reach this conclusion, given that the 50% included contingencies for other possible events occurring over that lengthy 29-year period (eg. other illness or accidents). However, the Court of Appeal did substitute the amount of loss of $1,200.00 net per week with $1,300.00 net per week over the 29-year period for future economic loss. This amendment resulted in an increase in damages for Mr Peebles, to the tune of $203,000.00. The Court of Appeal increased the award of damages to $967,052.92. Conclusion It is clear from the decision of the Court of Appeal that assessing the impact of a pre-existing condition on past and future economic loss requires a discrete assessment of relevant contingencies for each period. Here, the discount for future economic loss over 29 years warranted a higher discount than that applied for past economic loss. Get help from a worker's compensation lawyer If you require advice or assistance in relation to a work injury, contact Hall Payne Lawyers for advice . You can also contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2021/may/workcover-qld-appeal-win/ Mon, 17 May 2021 00:00:00 The notion of forced annual leave is not uncommon in Australia with many employees often requested (even required) to take annual leave during a temporary shut down of their employer’s operations. This is especially common during traditional holidays, including Christmas/New Year and Easter. This triggers an important question: can an employer lawfully force you to take annual leave during a temporary shutdown? Although many employees may be happy to take leave during festive holiday periods and school holidays, a large number of employees might prefer to work during such times. Those employees may be unhappy to be forced to take their annual leave at a time that they do not want to. They might argue that they should be allowed to decide when to use an entitlement they have worked to earn. Employees covered by a modern award A majority of employees in Australia are covered by a modern award. Modern awards provide employees with minimum entitlements in addition to the entitlements provided by the Fair Work Act , the National Employment Standards and the minimum wage. Most modern awards permit employers to direct their employees to take a period of annual leave during a shut down. Many modern awards include a standard term in relation to this. The standard term often requires four weeks’ notice. An example is that found at clause 32.5 of the Clerks Award which states that: “An employer may require an employee to take annual leave as part of a close-down of its operations, by giving at least 4 weeks’ notice.” Notably, though, not all modern awards impose the same conditions on the employer in relation to a direction to take annual leave. For example, while the standard term obliges the employer to provide 4 weeks’ notice, some awards require a longer period of notice. The Plumbing and Fire Sprinklers Award , for instance, states that 2 months’ notice must be provided for any direction to take leave during the Christmas and New Year period if certain circumstances arise. Similarly, the Educational Services (Post-Secondary Education) Award 2020 requires the employer to provide the employee with notice as soon as practicable after the employer has decided that it intends to close-down. This might be far more than four weeks if the employer makes its decision a significant amount of time before the close-down occurs. Every award is different and relates specifically to the industry and jobs it covers. Notably, all require a close-down of the employer’s operations – that is, business stops for the length of the leave period. You can find a list of awards and an option to “find my award” on the Fair Work website here . You can also seek assistance from your union, about your award coverage and conditions. Employees who are not covered by an award/agreement Although most Australian employees are covered by a modern award, some are not. This includes employees who are in particularly senior positions and other employees in a range of other award-free occupations. For employees who are not covered by a modern award, section 94(5) of the Fair Work Act applies. Section 94(5) of the Fair Work Act provides that: An employer may require an award/agreement free employee to take a period of paid annual leave, but only if the requirement is reasonable. Note: A requirement to take paid annual leave may be reasonable if, for example: (a)  the employee has accrued an excessive amount of paid annual leave; or (b)  the employer’s enterprise is being shut down for a period (for example, between Christmas and New Year). The legislative note to section 94(5) provides that a direction to take annual leave between Christmas and New Year may be “reasonable”. If you think your enforced taking of annual leave is "unreasonable", contact us for advice: 1800 659 114 Whether a direction to take annual leave in excess of the days between Christmas and New Year is “reasonable” will ultimately depend on the facts in the particular case. We would encourage employees in such a situation to seek legal advice .   In addition to any applicable modern award and the Fair Work Act , your employment contract or an enterprise agreement may also include clauses dealing with your employer’s right to direct you to take annual leave if you have a certain amount accrued, for example, 8 weeks. Conclusion If your employment is covered by a modern award, it is likely that your employer has the right to direct you to take annual leave as part of a shutdown of its operations. If your employment is award-free, an employer can still require you to take annual leave if that requirement is “reasonable”. We can provide you with a broad range of advice in relation to these issues, including in relation to: whether a modern award covers your employment and, if it does, whether it provides your employer with a right to direct you to take annual leave; what entitlements you have under a modern award in relation to such a direction from your employer, such as the period of notice you are entitled to; whether a direction to take annual leave under section 94(5) of the Fair Work Act is “reasonable”; and the enforceability of any clause in your contract of employment relating to your employer’s right to direct you to take annual leave. Get help from an employment lawyer  You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au For further information about your rights in relation to annual leave, visit our article “ All you ever wanted to know about your annual leave entitlements .” https://www.hallpayne.com.au/blog/rss/blog/2021/may/forced-annual-leave/ Mon, 10 May 2021 00:00:00 A Domestic Violence Order (“DVO”) is a document issued by a court which orders a person to stop threats or acts of domestic violence. There are two types of DVOs; a Protection Order and a Temporary Protection Order. In this article, we will look at the conditions set by the court in a DVO and the duration of Protection Orders. Standard conditions of a Domestic Violence Order All Domestic Violence Orders contain the following standard conditions: the respondent (the person against whom the Order is made) must be of good behaviour towards the aggrieved; and the respondent must not commit domestic violence or associated domestic violence against the aggrieved and or named persons. If a Court does not specifically impose the standard conditions (include them in the Orders), it is still taken to have done so. Therefore, the above standard conditions will always be a part of all Domestic Violence Orders. Additional conditions of a Domestic Violence Order In addition to the standard conditions, the Court may also impose other conditions which are necessary or desirable to protect the aggrieved, child or named person from domestic violence.   Examples of types of conditions can include: Prohibiting the respondent from approaching, contacting or locating the aggrieved or attempting to do any of these. Prohibiting the respondent from being present at a place associated with a child (for example a school). Requiring the respondent to return property or allowing the aggrieved to recover their property and/or to access their home to recover property. Prohibiting the respondent from using the internet including social networking sites to communicate with, publish pictures of or make adverse comments concerning the aggrieved. What is an ‘ouster condition’? If you and any child living with you are not able to live safely in your usual place of residence due to the respondent also residing there, the court may impose an ouster condition. This condition essentially ‘ousts’ the respondent from the aggrieved’s usual place of residence. A usual place of residence is defined in the Act as: a place where the respondent has a legal or equitable interest; and a place where the aggrieved and respondent live or previously lived together; and a place where the aggrieved or named person lives, works or frequents. A court must give reasons for making, or not making, the ouster conditions. Your safety and the safety of children is paramount It is important to note that the principle of paramount importance to the court when considering imposing other conditions must be the safety, protection and wellbeing of people who fear or experience domestic violence, including children. Duration of Protection Orders The duration of a Protection Order is usually stated in the order. However, if no date is stated the order will be in force for five years after the day the Protection Order is made. For example, if the Protection Order was made on 24 May 2020 the order will remain in force until midnight on 24 May 2025. The duration of the Protection Order does not correlate to the severity of the violence. Previously, Protection Orders were for a period of two years after the order was made. However, this was changed to ensure that people who fear or experience domestic and family violence are protected for as long as needed and that perpetrators are held accountable for their actions. The changes reduce the need for victims to seek extensions for their Protection Orders or new orders after the expiry of their order.  Can a Protection Order be in place for less than five years? The Court may make an order that a Protection Order is to be in force for a period of less than five years only if the court is satisfied there are reasons for doing so. The Court must provide those reasons when making a Protection Order for less than five years. Breaching a DVO is a criminal offence Once a Domestic Violence Order or Protection Order is made, it will usually contain one or more conditions. If a condition is breached, it becomes a criminal offence and severe criminal penalties for the person breaching the Order can apply. Urgent assistance to keep you safe If your safety or that of your children is at imminent risk, call 000 and, where possible, leave the premises to a safer place. If you are experiencing domestic violence that puts your safety and/or the safety of your children at risk (physical, emotional or financial), you can contact DV Connect on 1800 811 811 for immediate assistance. They operate 24/7.   Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2021/may/dvo-conditions/ Mon, 03 May 2021 00:00:00 A childcare worker in Gladstone (Queensland), who was dismissed for repeatedly refusing to get the flu vaccine, has lost her unfair dismissal case against her employer, Goodstart Early Learning (“Goodstart”). Background Ms Barber, an educator with Goodstart, refused to comply with Goodstart’s workplace policy that required its staff to be vaccinated against influenza. Ms Barber identified that the basis of her objection was that she suffered from coeliac disease, had a ‘ sensitive immune system’ and had suffered an adverse reaction to a flu vaccine administered approximately 11 years prior. While Goodstart’s vaccination policy stated that flu vaccines were ‘ mandatory’ for its employees, it did in fact contain an exception from the requirement to be vaccinated in circumstances where the employee suffered from a medical condition whereby administration of the vaccine could cause an adverse reaction. Goodstart thoroughly investigated the worker’s medical condition Goodstart went to some length to confirm the nature of Ms Barber’s medical condition, including offering to pay for her medical appointments. However, it claimed that at the conclusion of the process, it remained unclear as to the nature of Ms Barber’s medical condition. The Fair Work Commission ( “the Commission” ) found that, despite submitting two medical certificates from different general practitioners, the certificates produced by Ms Barber were ‘ vague’ and contained ‘ nothing substantive’ in terms of a medical reason justifying her refusal to comply with the policy. The Commission also noted that Ms Barber had been unable to find a doctor who would complete Goodstart’s pro forma medical certificate, in which the doctor was asked to mark a box if they believed Ms Barber’s medical condition would place her at an increased risk of an adverse reaction to the flu vaccination. In the absence of medical evidence in support of her concerns, Ms Barber’s objections to the flu shots were found to be ‘ conscientious objections’ that did not excuse Ms Barber from her obligation to comply with the policy. Fair Work Commission rejects employer argument of “inherent requirement” The Commission rejected Goodstart’s argument that the requirement to be vaccinated against influenza was an inherent requirement of Ms Barber’s role. But the Commission did find that Ms Barber had engaged in conduct justifying her dismissal when she failed, without excuse, to comply with a l awful and reasonable direction from her employer to submit to the vaccination. Worker failed to comply with lawful and reasonable directions Importantly, the Commission’s decision confirms that the ‘ lawfulness’ and ‘ reasonableness’ of a direction that an employee be vaccinated, can only be determined after considering a number of factors including: the nature of the industry in which the employee works; the particulars of the workplace in which the employee works; the type of vaccine involved – noting the distinction between the flu vaccine, which uses an inactivated virus that is unable to cause infection, and vaccines like varicella (or chickenpox vaccine) that uses a live but weakened virus; and the individual that is the subject of the direction. Fair Work Commission determines the direction was reasonable In determining that the direction was reasonable, the Commission had regard to the highly regulated industry in which Ms Barber worked, along with the fact that she was in direct contact with children who do not have fully developed immune systems and may not be old enough to have the vaccination themselves.. Specifically, the Commission noted that the early childhood education industry has a history of requiring staff to be vaccinated against certain diseases, such as whooping cough, and that Goodstart’s vaccination policy was supported by the United Workers Union. The same circumstances will not necessarily exist in other industries/workplaces, meaning the decision likely has limited application to workplaces that provide hands-on care to vulnerable members of the community. Notwithstanding the fact that this decision turned on the specific circumstances of the case, there are important lessons that can be drawn from this decision, including: that employers should hasten slowly before taking disciplinary action against an employee who refuses to submit to a vaccination. The Commission noted that Goodstart’s cautious approach – which spanned a number of months and included multiple requests for Ms Barber to provide further information regarding her medical condition as well as several opportunities for her to respond to their concerns – was one of the factors that led to the Commission being satisfied that the dismissal was fair; and that employees who are issued with a direction to be vaccinated should seek advice, from their Union or a lawyer experienced in employment law, as to the reasonableness of such a direction in their particular circumstances. This is regardless of whether their objection to the vaccine is due to a medical condition or for conscientious reasons. Get help from an employment lawyer If you have concerns about the reasonableness or fairness of directions provided to you by your employer, you should seek advice and assistance either from your Union in the first instance, or from a lawyer experienced in employment law . You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Media on this case Hall Payne employment lawyer, Ellie Bassingthwaighte was interviewed by Neil Breen on 4BC’s Breakfast Show about this specific case. You can listen to that interview here . https://www.hallpayne.com.au/blog/rss/blog/2021/april/refusing-flu-vaccine/ Fri, 23 April 2021 00:00:00 Updated July 2024 In Australia, employers are required to pay a minimum percentage of eligible employees’ earnings into a superannuation fund. This is called the ‘superannuation guarantee’ and is designed to fund retirement. The superannuation guarantee rate from 1 July 2024 is set at 11.5% of earnings. Some employers also make additional contributions. It is acknowledged that a number of employers are not paying the required super guarantee payments which leads us to the question, ‘What can you do about unpaid employer contributions of superannuation?” Am I entitled to superannuation? Prior to 1 July 2022, employers did not have to pay superannuation guarantee for workers earning less than $450 a month. This has since been abolished and employers are now required to pay, regardless of the worker’s earnings. Generally, all employees are eligible to receive super guarantee payments. There are some additional rules for eligibility which apply to: employees under 18; domestic or private workers; contractors; international workers; self-employed workers; and high-income earners who opt out of super. You can learn more about these specific eligibility requirements, on the federal government website . If your employer is required to make superannuation contributions, your payslip must contain information about any amount that has been paid during the pay period, or the amount that your employer is liable to pay for that period. When is my employer required to pay my superannuation contributions? While some employers choose to pay superannuation contributions each pay period, they are not required to do so. Rather, your employer is required to pay your superannuation contributions (at least) once every three months. The quarterly payment schedule for superannuation contributions is: for the period 1 July – 30 September: by 30 November; for the period 1 October – 31 December: by 28 February; for the period 1 January – 31 March: by 28 May; and for the period 1 April – 30 June: by 28 August. You should regularly check your superannuation balance and contribution history to ensure that your employer is complying with its legal obligations to pay your superannuation contributions. Regularly checking your superannuation balance will enable you to identify any issue early, and before your employer falls too far behind. What if my employer hasn’t been paying my superannuation contributions? If you have checked your superannuation account and noticed that your employer hasn’t been paying your superannuation guarantee contributions, in full, by the quarterly deadline, the Australian Taxation Office is generally the best place to direct your initial enquiries. The ATO is the government body responsible for taking complaints about unpaid superannuation contributions and will prioritise the investigation and, if relevant, the recovery of your unpaid superannuation contributions. Where appropriate, the ATO will also require your employer to repay an additional amount to ensure that you are compensated for any lost interest as a result of your money not being available for investment by your superannuation fund. It is very easy to report unpaid superannuation contributions to the ATO. Completing the ATO online form By phone on 13 28 65 Get help from an employment lawyer If you believe your employer has not been complying with its legal obligations to pay superannuation guarantee contributions on your behalf, you should get legal advice about the options available to you. The employment and industrial relations team at Hall Payne Lawyers is well-equipped to provide you with the advice that you need. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au * The superannuation guarantee rate from 1 July 2024 is 11.5%. It is due to increase from July 2025 by 0.5%, to be 12%. https://www.hallpayne.com.au/blog/rss/blog/2021/april/super-guarantee-nonpayments/ Mon, 19 April 2021 00:00:00 Workers compensation claims for psychological injury, whether due to bullying and harassment or due to a traumatic event, require expertise, patience and provision of a lot of support to injured workers. In many cases, the evidence is weighted against the worker and you may find the process overwhelming.  Many lawyers who work on NSW compensation claims are reluctant to take on a complex case as they are concerned about the limited funding from WIRO . Who can you turn to? We are experts in NSW workers compensation claims ; for physical and psychological injuries. We provide compassionate, clear and highly skilled advice and assistance to get you through the entire process. Common assistance we provide when you’re injured at work Lodgment of your claim; Providing assistance with the completion of your detailed statement of events; Obtaining witness statements; Obtaining supportive Independent Medical Examiner (IME) assessments for your claim including s66 assessment and liability; Representing you in proceedings if your claim is disputed; Access to the best barristers to advise you along the way; Resolving your work injury damages claim for compensation due to the negligence of your employer, if you qualify Advice in respect of any alternative claims against other parties -eg head contractors; Assistance with superannuation claims ; Advising on motor accident claims if your injury can be classified as both a workers compensation claim and a motor vehicle accident - eg forklift accident or injured by a vehicle in carpark; We also provide advice and assistance to people injured in non-work related incidents or accidents, for example: injured at a public place ; injured at private premises; medical negligence ; and dental negligence. First steps if you believe your psychological injury is work-related If you consider that your psychological injury is work-related, there are initial steps that you can take. Speak to your GP or other health professionals to determine whether your injury is due to your employment; Provide notification of your injury to your employer or complete a work injury claim form and submit it to your employer; and/or Seek legal advice. Seeking legal advice and the costs associated with workers compensation claims While there is always concern among those seeking legal advice that costs of the service are unaffordable, legal fees for workers compensation claims are covered by the WIRO . At Hall Payne Lawyers, we are able to apply for WIRO funding on your behalf. This enables us to assist you with your workers compensation claim and means that you do not have to pay any costs out of your own pocket. This gives you the peace of mind that you are receiving high-quality legal advice without paying any extravagant legal costs sometimes associated with claims. For other types of claims, we provide costs on a ‘no win no fee’ basis. Recent wins for our clients Seeking review of a decision to decline liability for a psychological injury which resulted in the insurer accepting liability, making all back payments owing to our client and agreeing that the worker meets the threshold and is now able to proceed with a work damages claim due to the negligence of the employer. Successfully negotiating past weekly payments to workers with agreement by the insurer that the worker could go on to pursue a lump sum compensation, and the possibility of a work injury damages claim in the future. Resolution of a work injury damages claim in excess of $1 million where we had supported the worker throughout the internal investigation in which the employer tried to shift the blame to the worker, to resolution of the s66 lump sum claim, through to the resolution of the work injury damages claim. Get help from a worker's compensation lawyer  Over 80% of our claims involve, in part or fully, psychological injury. We work hard to get your claim prepared and obtain the best result possible. For advice and assistance with your NSW workers compensation claim, we're only a phone call away:  02 8280 4100 Going through the process of a workers compensation claim can be stressful, frustrating and exhausting. We provide consistent and timely support and are available to answer any questions you have throughout the process. Please call our team on 02 8280 4100 to speak with a highly experienced NSW workers compensation lawyer . https://www.hallpayne.com.au/blog/rss/blog/2021/april/nsw-workers-comp-psych-claims/ Mon, 12 April 2021 00:00:00 In Queensland, protection orders are made under the Domestic and Family Violence Protection Act (2012). A protection order is a document issued by a court that orders a person to stop threats or acts of domestic violence. It does not automatically prevent you from seeing your children. However, there can be situations/circumstances where the making of a protection order against you (i.e. naming you as the respondent) may affect your contact and communication with your children. These include: whether there are any interim or final parenting orders already in place; the specific wording of the protection order; the level of alleged domestic violence ; and whether the Magistrates Court made a finding that domestic violence had occurred (generally at a defended hearing where the evidence is considered). Where there are no parenting orders in place Where there are no interim/final parenting orders made under the Family Law Act (1975) and the children live with the aggrieved (the person who makes the application for a protection order), the parent who is the named respondent in the protection order can have contact and communication to their children limited or effectively denied whether or not there is a risk of child abuse or harm to the children. Therefore, we often advise our clients to obtain parenting orders rather than a parenting plan to prevent an aggrieved parent from withholding the children.  What happens if a protection order is breached? The parent who is subject to prohibitions in a protection order is limited in what they can do with respect to having contact with their children. They must take due care not to breach any conditions of the protection order as doing so could result in subsequent charges of a criminal nature and possibly a criminal conviction for breach of the protection order. The most common condition breached is the condition that the respondent be of good behaviour and not commit any acts of domestic violence against the aggrieved or named person. The definition of domestic violence is somewhat broad and can include harassing behaviour, financial abuse , threats to commit suicide and so on. We have covered what behaviour could potentially be considered domestic violence in our previous blog, “ Types of domestic violence ”. However, it can also be a breach simply to contact the aggrieved to speak to or see your children. Therefore, to avoid the potential of breaching the conditions in your protection order, it is always important to obtain parenting orders (where suitable) as quickly as possible after you separate from your partner. This will ensure that the children can continue to have a meaningful relationship with both parents. Where parents already have parenting orders or are involved in family law proceedings, protection orders (either temporary or final) will often have an ‘exception condition’. One example of this condition could be that a respondent is prohibited from contacting the aggrieved except for the purposes of arranging or having contact with the children by prior written arrangement or as provided by a family law order. Protection orders and family law proceedings If a protection order is in place prior to commencing family law proceedings, then the family court will have to consider any current and previous protection orders and assess any risk of continued or renewed violence against family members. In this instance, we might advise our clients to consider consenting to protection orders without admissions, as going to a hearing and possibly having a Magistrate determine there was an act(s) of domestic violence could seriously jeopardise a family law parenting application. Where there is an allegation or finding of serious domestic violence, the family court may consider making an order for supervised time at a contact centre or making an order for time to be supervised by another family member. Supervised contact can also protect the alleged ‘ violent ’ parent from untruthful ongoing allegations. If the allegations are considered to have a lesser risk of violence towards the children, it may be presumed a court will consider that the respondent having a meaningful relationship with the child is in the children’s best interest. Summary Having parenting orders in place as soon as possible after a relationship breaks down (subject to the absence of any domestic violence) often prevents the aggrieved parent from subsequently withholding the children or attempting to breach any parenting orders. If parties can reach an agreement with respect to parenting matters, it is much more cost-effective and much less stressful. Parenting orders can then be made by the court without any attendance necessary. If parties can’t reach an agreement in relation to parenting arrangements, then a court will be required to determine the arrangements in the best interests of the child. This process can be costly and protracted. It is important to seek interim parenting orders to ensure that the children can develop a meaningful relationship with both parents. Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2021/april/protection-orders-and-children/ Fri, 02 April 2021 00:00:00 The Australian Health Practitioner Regulation Agency (AHPRA) is aware that vexatious notifications are made against health practitioners from time to time. Medical complaints, or notifications, can relate to a health practitioner’s professional conduct, performance or personal health.  Notifications are particularly difficult for doctors, nurses, paramedics and other health providers to deal with when they may have been made vexatiously. Research about vexatious complaints commissioned by AHPRA AHPRA commissioned research considering vexatious complaints. The results of the research were published by the University of Melbourne School of Population and Global Health Policy, Centre for Health Policy. You can view " Reducing, identifying and managing vexatious complaints ” here. This report concluded that truly vexatious complaints account for less than 1% of complaints made in the health sector. We are highly experienced in helping registered health practitioners  regarding complaints.  Call for assistance: 1800 659 114 Our team has significant experience in helping registered health practitioners respond to complaints alleged to have been made against them. Anecdotally, we would have expected a higher incidence of complaints made vexatiously. We are in complete agreement with the report that complaints in general “ have significant negative impacts on the health and well-being of practitioners ”, unfortunately. The report states that “ intentional misuse and abuse of complaints processes is a risk that regulators must be equipped to address ”. Framework developed by AHPRA to manage vexatious complaints In order to help identify and properly manage potentially vexatious notifications, AHPRA has recently developed and published “ A framework for identifying and dealing with vexatious notifications ” which you can view here.  The framework is for use by staff and regulatory decision-makers. AHPRA’s framework includes: principles and features of vexatious notifications; potential indicators of vexatious notifications; and what to do when there is a concern that a notification is vexatious. There is no definition of “ vexatious notification ” in the AHPRA legislation, the Health Practitioner Regulation National Law Act 2009 (National Law). Whether or not a complaint is considered vexatious will depend on a number of different considerations. How does the framework identify a vexatious notification? The framework states that “ a vexatious notification is a notification without substance, made with an intent to cause distress, detriment or harassment to the practitioner named in the notification ”. AHPRA’s framework is clear that a vexatious notification is not defined by a particular outcome ( for example, a no further action decision ), nor by the practitioner’s experience of the notification (understandably upsetting). Rather, it is by a combination of the notifier’s motivation, and the lack of grounds for the notification. The framework states that it is important to distinguish truly vexatious notifications from notifications which are simply inadequate, incomplete or misconceived. AHPRA’s framework states that identifying vexatious notifications is inherently difficult, but considering pre-existing relationships between notifiers and practitioners, as well as other contextual factors, can help identify notifications that are potentially vexatious. The framework also notes that some notifications made by complainants with vexatious motivation may nevertheless disclose a genuine patient safety issue warranting consideration by AHPRA and the National Boards. So even if a complaint has been made with an ulterior motive, it will still be considered by AHPRA and the National Boards if a genuine issue is raised. The framework recommends that decision-makers lookout for factors including the: notification format; notification content notifier’s behaviour; and relationship between the practitioner and the notifier. Who can make a complaint (notification) about a health practitioner? Medical complaints (notifications) against health practitioners can be made by anyone.  In our experience, vexatious notifications, or notifications that are misconceived and lacking in substance, sometimes arise in the context of a relationship breakdown between a registered health practitioner and their former partner. What’s the process where a complaint may be vexatious? Where there is a concern that a notification may be vexatious, the framework sets out a process for AHPRA to follow.  The National Boards can decide to take no further action in relation to a complaint if it is determined that the complaint is frivolous, vexatious , misconceived, or lacking in substance, amongst other grounds.   There are protections under the AHPRA legislation, the National Law, for those who make notifications to AHPRA in good faith. Importantly, where a complaint has been made by another health practitioner, which is found by the relevant National Board to have been made vexatiously, the framework states that the relevant National Board should be asked to investigate the conduct of the health practitioner complainant. Where that investigation confirms that the notification has been made by the other health practitioner vexatiously, regulatory action may be taken against that complainant. AHPRA’s framework includes a note of caution and warns against practitioners seeking to “ misapply the 'vexatious defence’ ”, which can indicate an attempt to deflect blame, a lack of insight, or lack of adherence to accepted standards. There are protections under the AHPRA legislation, the National Law, for those who make notifications to AHPRA in good faith. However, if notifications are found not to have been made in good faith, further action can be taken against those notifiers. Get help from a health lawyer  If you feel that a notification has been made against you vexatiously, or if you would simply like assistance in responding to any sort of notification made against you, please contact our professional conduct and discipline law team to seek assistance. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2021/march/ahpra-complaints-framework/ Mon, 29 March 2021 00:00:00 If you are pregnant and working in paid employment, either as a permanent or casual employee, at some point you will need to discuss work and leave arrangements with your employer. Those discussions would include your entitlement to paid or unpaid leave, ensuring you have a safe work environment and your rights to flexible work arrangements. When am I required to tell my employer? There is no legislative requirement set out in the Fair Work Act 2009 for when you should disclose your pregnancy to your employer or when you need to apply for unpaid parental leave. Paid and unpaid leave entitlements Pursuant to section 70 of the Fair Work Act 2009 , an employee is entitled to twelve months unpaid parental leave if: the leave is associated with: the birth of a child of the employee or the employee 's spouse or de facto partner; or the placement of a child with the employee for adoption; and the employee has or will have a responsibility for the care of the child . It is important to familiarise yourself with any policies and procedures specific to your workplace in relation to any further paid or unpaid parental leave entitlements and any timelines set out for applying for parental leave. In general, and notwithstanding any internal workplace policies, you should disclose your pregnancy to your employer by no later than 10 weeks prior to any planned paid or unpaid parental leave. This is so that appropriate workplace arrangements can be made in the interests of both you, your co-workers and your employer. In general, you would commence parental leave for the last six weeks of your pregnancy. You may, however, elect to work during the last six weeks, if it has been determined by your treating medical practitioner that it is safe to do so. Your employer may request you provide a medical clearance certificate from your doctor, to confirm it is in fact safe for you to work out the last six weeks of your pregnancy. If you do not provide the medical certificate, or if it is deemed as unsafe for you to work during the last six weeks, then your employer may direct you to commence parental leave. Safe working environments All employees, including pregnant employees, are entitled to a safe work environment. For women whose inherent employment duties are affected by pregnancy, they may be moved into an alternate role with suitable duties in order to create that safe work environment. If there is no alternate or suitable role available at your workplace, you may take ‘no safe job leave’. If you are entitled to unpaid parental leave, and no suitable duties can be provided to you to keep you safe during your pregnancy, then ‘no safe job leave’ will be available to you on a paid basis. If you are not entitled to unpaid parental leave, may take unpaid ‘no safe job leave’. Discrimination You cannot be discriminated against by your employer because you are pregnant. Protections set out in the Sex Discrimination Act 1984 , mean that your employer cannot treat you differently, adversely or less favourably because you are pregnant. Examples of discrimination against a pregnant employee include: assuming a pregnant woman can or cannot fulfil her inherent employment responsibilities because she is pregnant; demotion due to pregnancy; dismissal due to pregnancy; or being treated differently in any other way simply due to pregnancy. It is important to understand your rights when pregnant while working and seek urgent legal advice if you feel you have been discriminated against on the basis of your pregnancy. Do you need legal advice? Hall Payne Lawyers are highly skilled in advising and representing people in a range of employment law and discrimination matters. If you need advice or representation in relation to any type of employment law or discrimination matter , you should seek advice as early as possible.  We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. Get help from an employment lawyer You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2021/march/pregnancy-notification/ Mon, 22 March 2021 00:00:00 Hall Payne Lawyers recently represented a transport driver who was involved in a workplace accident when he braked his vehicle suddenly for an errant pedestrian. The sudden braking resulted in a seemingly minor injury. The worker suffered some shock and what he thought was a muscular injury to the shoulder. He had a short time off work and went back to working as normal. The worker did not make a workers compensation claim at this time. Worker suffers significant neck injury several months later The worker had some niggling symptoms initially but no major issues. Approximately 6-7 months after the accident, while on holidays at the beach, he suffered a debilitating neck condition which required emergency surgery and could have resulted in paralysis without immediate attention. He was unable to return to driving and lost his job. On medical advice he sought to claim the injury was the result of the original near collision with the pedestrian and should be covered by workers compensation. Workers compensation claim denied Predictably, the claim was declined and the insurer attempted to blame the injury as being non-work related due to: the occurrence of the neck injury while on holidays; and the lack of major symptoms until many months after the original road accident. They also purported to hold CCTV footage which they interpreted as showing the braking was mild and could not have caused the underlying cervical spine injury. Hall Payne appeals the decision to deny the claim We obtained expert medical evidence from the treating doctors and independent doctors. The medical experts proved the CCTV footage reflected that the mechanics of the accident were causative of damage to the cervical spine. Further, this initial damage deteriorated to the point of the emergency surgery months after the injury. The appeal We sought the assistance of an esteemed counsel to represent our client in the proceedings in the NSW Workers Compensation Commission. Our counsel argued that the injury did not arise out of a ‘disease process’ (which the insurer put forward to limit its liability for payments), but rather was due to a sudden physiological change which originated on the day of the near collision. Under the Workers Compensation Act , the definition of injury: means personal injury arising out of or in the course of employment includes a disease injury which means: a disease that is contracted in the course of employment but only if the employment was the main contributing factor to contracting the disease, and the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease. A rather complex argument was put forward by Hall Payne and counsel to distinguish the injury from a disease process, and full liability for the injury was made out on the basis of our medical evidence. Worker wins The Arbitrator found that the incident that occurred in June 2018 was a substantial contributing factor to the spinal injuries sustained by the worker. The Arbitrator agreed with our arguments that the injury was not a disease injury. The worker received: back payments for loss of wages ; and medical treatment expenses. The decision also left open a s66 claim for permanent impairment lump sum compensation and potential work injury damages claim (due to employer negligence), in the future. In summary This case serves as a reminder that there is an important distinction between a personal injury and a disease injury, as defined in the Workers Compensation Act . Even though an injury may have been ‘superimposed’ on as a result of degenerative changes, this does not of itself cause the injury to be classified as a disease injury. Being able to differentiate between the two can be an important factor in determining whether an employer is liable to pay compensation due to the differing tests for both. You can read the full decision of Gorrell v Secretary, Department of Transport here . Get help from our dedicated, compassionate and expert worker's compensation team The Hall Payne NSW personal injury team is led by Baiba Thomas , an Accredited Specialist in Personal Injury Law with almost 30 years’ experience. She is assisted by Craig Joshua , a bright, hardworking and talented lawyer and Alexandra Rogers, a highly experienced and supportive paralegal. You will find that Hall Payne will put in whatever work is needed to get your claim in the strongest position possible. For advice and assistance with your NSW workers compensation claim, contact our Sydney team today on 02 8280 4100 . https://www.hallpayne.com.au/blog/rss/blog/2021/march/claim-months-after-injury/ Mon, 15 March 2021 00:00:00 If you have received a notice to appear from a police officer , or you were arrested and then granted bail at a police station, you must attend court on the date listed on the relevant document. If you fail to appear, a warrant will likely be issued for your arrest. If you are unable to attend due to sickness, you should contact the courthouse’s registry urgently. We strongly recommend you obtain legal advice and representation when issued with a notice to appear. If, however, you choose not to do this in the first instance, below is an outline of what to expect during the initial court process, what you need to do and how you should conduct yourself. Ascertain the courtroom you need to attend Prior to attending court, you should check the ‘ Daily Law List ’ for the relevant courthouse on the day you are required to attend court. Law lists are usually published for each courthouse in Queensland at about 6.45 am and will confirm the time that your matter is listed and the relevant courtroom number. Duty Lawyers At most courts, a duty lawyer will generally be available to provide basic assistance to defendants appearing on the day. Upon arriving at the courthouse, you may wish to make enquiries about how to access their services. If you are unsure about how to do this, there are generally volunteers at the courthouse who can give you guidance. We strongly recommend that you do not enter a plea until you have received legal advice What to do upon arrival at the courthouse Upon arriving at the courthouse, you must go to the allocated courtroom ( which you can find in the Daily Law List ) and advise the police prosecutor that you are present. You may need to wait in line to speak to them, so you should aim to be there early.   When you speak to the prosecutor, you should ask them for a copy of the QP9 Court Brief. They will usually have a copy printed to give to you upon request. The QP9 will contain further details about the prosecution’s case against you. You should read the QP9 carefully to ensure that it is accurate and that you understand the charges and facts alleged against you. If you are seeking assistance from the Duty Lawyer, they will generally speak to the prosecutor and obtain a copy of the QP9 for you. You should follow the directions of the Duty Lawyer if you are seeking their assistance. What options do I have during my first appearance? If you are not seeking the assistance of the Duty Lawyer, when you speak to the prosecutor you will be asked what you are seeking to do with the matter that day. During your first appearance, you have two primary options: You can choose to adjourn the matter to seek legal advice (which we recommend after first receiving the QP9); or You can choose to enter a plea (it is recommended that you do not enter a plea until you have received legal advice ). When you have finished talking to the prosecutor you should sit in the courtroom and wait for your name to be called out. Are there any rules around etiquette? If you are in the courtroom when the Magistrate enters, you should stand and only sit when you are told to do so. You should also bow your head at the Magistrate when they first enter the courtroom. If you leave or enter the courtroom while the Magistrate is in there, you should bow your head at the Magistrate before you leave, or as you first enter. You should do this on every occasion. You should also only ever refer to the Magistrate as “Your Honour” when you are talking to them. It essential that you follow these rules so that you do not appear to be disrespectful to the Magistrate and the court. What do I say to the Magistrate? When your name is called, you should approach the opposite side of the bar table to the prosecution. There will be an empty chair and a lectern for you to rest any documents you may have. The Magistrate will then ask you what you intend to do that day. What happens if I am seeking an adjournment? If you are seeking an adjournment, you should advise the Magistrate that you have only just collected the QP9 and that you intend to seek legal advice. The Magistrate will generally grant an adjournment for three to four weeks and will give you another date that you need to attend court. It is important that you make a note of the new date. You will also generally be required to enter into an undertaking as to bail. You should wait at the registry for that document to be prepared and not leave the courthouse until you have signed it. What happens if I am pleading guilty? It is strongly recommended that you seek legal advice before entering a plea . If you are entering a plea of guilty, the Magistrate will listen to the prosecution case first. This will usually involve the prosecutor reading out the facts from the QP9 and tendering your criminal and traffic histories. You will then be asked by the Magistrate if you have anything to say. At this point, it is often useful to submit mitigating materials such as character references, references from your employer and certificates of completion for any relevant courses that you have completed since your offending (for example, the Queensland Traffic Offenders Program, anger management counselling, or alcohol and/or drug counselling). If you are relying on any of those documents, you should take three copies with you on the day so you can give one to both the prosecutor and the Magistrate. You may also wish to provide some further context about the charge and outline any steps you have taken to ensure that it does not happen again. It is essential that you apologise for your conduct and treat the Magistrate with respect at all times. What happens if I am pleading not guilty? It is strongly recommended that you seek legal advice before entering a plea . If you enter a plea of not guilty, you will likely be liable to a more severe sentence if you are later found guilty. That is because you have put the court and the prosecution to the expense of preparing for a trial. If you enter a plea of not guilty, the Magistrate will usually direct the prosecution to provide a brief of evidence to you by a certain date. The brief of evidence will contain the full prosecution case against you. You should make a note of the date that the brief of evidence is due and follow up the prosecution if they don’t provide it in time. The Magistrate will also give you a date for the hearing, or adjourn the matter for a mention. If you are given a hearing date you should make a note of that date and ensure that you attend court on the day ready to argue your case. If the matter is listed for a mention, you need to attend court on that date and be ready to tell the Magistrate how you intend to progress the matter. You will generally be given a hearing date at that time. You will also generally be required to enter into an undertaking as to bail. You should wait at the registry for that document to be prepared and not leave the courthouse until you have signed it. It is strongly recommended that you seek legal advice. Get help from a criminal lawyer  The criminal law team at Hall Payne Lawyers is well equipped to provide you with advice about a criminal charge or a QP9. If you are currently facing a criminal charge you should contact our office and arrange an appointment with a member of our team. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2021/march/first-court-date/ Fri, 05 March 2021 00:00:00 The extent of allegations of abuse made against Launceston nurse, James ‘Jim’ Griffin were recently discussed on Camille Bianchi’s podcast, The Nurse . Mr Griffin has been charged by Tasmania Police with more than a dozen offences related to child sexual abuse. From the late 1980’s through to 2012, Mr Griffin was employed as a registered nurse at Ashley Detention Centre near Deloraine and the Paediatric Centre at the Launceston General Hospital. Mr Griffin was also a volunteer at the Northern Tasmanian Netball Association. The allegations On 1 May 2019, a survivor came forward and made a complaint to Tasmanian Police relating to the historic sexual abuse committed by Mr Griffin. This resulted in more survivors coming forward. The number of people impacted by the illegal acts of Mr Griffin will no doubt be far-reaching. Duty of care breached There may be a basis to allege that the departments and organisations involved, breached their duty of care. The organisations where Mr Griffin worked or volunteered, owed a duty of care to the children who were subjected to that abuse. This would include residents, patients and participants of Youth Justice Services, Tasmanian Health and the Northern Tasmanian Netball Association. What is duty of care? Generally, a duty of care is a legal obligation imposed on a legal person, which includes an institution, to exercise a reasonable standard of care to avoid foreseeable harm to others. Relating to child abuse, a person or institution has a duty to take all reasonable steps to prevent the abuse of a child by a person associated with the organisation while the child is under the care, supervision, control or authority of the institution. Importantly, the law also recognises that an institution can be held liable for the direct breach of duty by one of its employees (in certain limited circumstances). Get help from an abuse lawyer  Our Abuse Law team understands that for a survivor, discussing the particular circumstances will be difficult, however it is important that survivors know their rights. We encourage anyone who may have information relating to allegations of sexual or physical abuse at Launceston General Hospital, Ashley Detention Centre or Northern Tasmanian Netball Association from the late 1980’s through to 2012, to make contact with Megan Stanley, Senior Associate at Hall Payne , as soon as possible. 📞  1800 659 114 https://www.hallpayne.com.au/blog/rss/blog/2021/march/nurse-sex-abuse-charges/ Mon, 01 March 2021 00:00:00 In a previous blog “ Types of domestic violence ”, we explored the behaviours which constituted domestic violence which were not necessarily physical in nature. In this blog we continue this topic, looking particularly at financial abuse (referred to as economic abuse in legislation). What is financial abuse? Economic abuse (common term, financial abuse) is defined in section 12 of the Domestic and Family Violence Act 2012 (Qld) ( the Act ) as behaviour that is coercive, deceptive or unreasonably controls another person without that person’s consent: by denying that person the economic or financial autonomy they would have had but for that behaviour; or by withholding or threatening to withhold the financial support necessary for meeting the reasonable living expenses of that person or a child, if that person or a child is entirely or predominantly dependent on the first person for financial support to meet those living expenses. If someone does not have access to finances in a relationship and they are considering ending that relationship, the financial abuse can leave that person unable to leave the relationship. This financial abuse is considered a form of family (domestic) violence. Examples of financial abuse The Act provides some examples of economic abuse: Coercing a person to relinquish control over assets and income. Removing or keeping a person’s property without their consent or threatening to do so. Disposing of property owned by a person or jointly owned against the person’s wishes and without lawful excuse. Preventing a person from having access to joint financial assets to meet household expenses, without lawful excuse. Preventing a person from seeking or keeping employment. Coercing a person to claim social security payments. Coercing a person to sign a power of attorney that would enable to the person’s finance to be managed by another person. Coercing a person to sign a contract for the purchase of goods or services. Coercing a person to sign a contract for the provision of finance, a loan or credit. Coercing a person to sign a contract of guarantee. Coercing a person to sign any legal document for the established or operation of a business. Considering the examples above it is possible to see why many family law matters involve allegations of domestic violence. Scenarios involving financial abuse which could constitute domestic violence Scenario 1 – disposing of jointly owned property You have recently separated and need some money to pay your own living expenses outside of the matrimonial home; You decide to sell the family caravan (a joint asset of the relationship); you do not seek consent from your former partner prior to selling the jointly owned caravan; you may have committed an act of domestic violence by disposing of joint property. Scenario 2 – preventing a person from seeking employment You are in a relevant relationship with your partner; your partner wants to get a job; You prevent your partner from being gainfully employed by spreading rumours or denigrating them to every one of their employers and say words to the effect “ I won’t let you get a job ”. This could be considered domestic violence as you are preventing your partner from gaining some degree of financial autonomy. Scenario #3 – preventing access to joint bank accounts You are married and have a joint bank account with your spouse Your spouse takes your bank card, cuts it up and says words to the effect “ I'm not going to let you spend another cent ”. This leaves you unable to meet necessary personal and household expenses. This is a form of financial abuse constituting domestic violence. Urgent assistance to keep you safe If your safety or that of your children is at imminent risk, call 000 and, where possible, leave the premises and go to a safer place. If you are experiencing domestic violence that puts your safety and/or the safety of your children at risk (physical, emotional or financial), you can contact DV Connect on 1800 811 811 for immediate assistance. They operate 24/7.   Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2021/february/financial-abuse/ Mon, 22 February 2021 00:00:00 In a recent decision from the Queensland Civil and Administrative Tribunal (‘ QCAT ’), a nurse whom Hall Payne Lawyers represented in disciplinary proceedings , has been allowed to keep her registration despite the QCAT finding that she engaged in professional misconduct by commencing and continuing a romantic relationship with a patient that she was treating. Background The nurse and the patient began their affair in about 2015 while the patient was being treated by the nurse at the Prince Charles Hospital. The relationship continued for approximately two years before the patient entered into a relationship with another patient of the hospital. Ombudsman imposes conditions on the practitioner’s registration Following our client disclosing the relationship to her employer, she lost her job and the Office of the Health Ombudsman (‘ OHO ’) imposed conditions on her registration that prevented her from treating male patients. The conditions effectively meant that she was unable to work as a nurse, which resulted in her losing a second job that she had obtained shortly after leaving the Prince Charles Hospital. The QCAT disciplinary proceedings As is all too frequently the case, our client was left in limbo for an extended period (in this case, over two and a half years) while the OHO investigated the matter. The impact of this was predictably catastrophic for our client. She suffered immense personal distress and hardship, including being made bankrupt before the conditions on her registration were ultimately lifted, and the OHO finally initiated disciplinary proceedings in the Tribunal. Although the Ombudsman argued that our client's registration should be suspended for at least 12 months, the Tribunal found that no suspension was necessary in order to protect the public. The Tribunal acknowledged the tumultuous nature of the relationship between the nurse and the former patient, which included allegations that the nurse had suffered domestic violence at the hands of the patient, and accepted her sincere remorse and regret for having engaged in the relationship. The Tribunal noted that our client had educated herself on her professional obligations and the Code of Conduct for Nurses and was in no doubt as to her professional obligations, at the date of the decision. Importantly, the Tribunal found that while our client’s relationship with the patient was undoubtedly unprofessional, it was not predatory and our client had obtained insight into her conduct that would render the suspension or cancellation of registration to be punitive. The Tribunal concluded that not all instances in which a health practitioner engages in a sexual relationship with a patient will warrant cancellation or suspension of the practitioner’s registration. This is an important decision for health practitioners as it represents a correction to a more realistic and reasonable approach in the way the Tribunal deals with boundary violations by health practitioners; recognising the spectrum of seriousness on which these violations occur, rather than the puritanical and harsh approach which often occurred in the past. While it is tempting to view nurses (and other health practitioners) as angels due to the work they perform, it is important to recognise that they are human and, like all humans, they are prone to making mistakes. This decision shows that in circumstances where a health practitioner makes a mistake, they will not necessarily be removed from the profession if they can show they have taken sufficient steps to atone for their mistake. Get help If you’re a health professional and you’ve received a notification (complaint) against your registration, seek advice immediately; either from your Union or a lawyer experienced in professional discipline law . You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2021/february/qcat-win-for-nurse/ Mon, 15 February 2021 00:00:00 There have been several reports of escalations in domestic violence and family violence during COVID-19. The Australian Institute of Criminology reports that almost one in 10 women in a relationship has experienced domestic violence during COVID-19 . Many members of the community still believe that domestic violence requires an element of physicality or physical harm towards another person. This is not actually the case and domestic violence can include economic abuse, emotional abuse, threatening behaviour and coercive behaviour. In this blog, we will look at what behaviour constitutes domestic violence (including some examples), emotional and psychological abuse along with intimidating and harassing behaviour. We cover economic abuse (also referred to as financial abuse) in this separate article . Domestic violence covers a wide range of behaviours by one person towards another with whom they are in a relevant relationship. You can read more about ‘relevant relationships’ in our blog “ Applying for domestic violence orders in Queensland ”. What behaviour constitutes domestic violence? Section 8 of the Domestic and Family Violence Protection Act 2012 (Qld) ( the Act ) defines what behaviour is considered domestic violence. It is behaviour that is: physically or sexually abusive; or emotionally or psychologically abusive; or economically abusive; or threatening; or coercive; or in any other way controls or dominates the second person and causes the second person to fear for his/her safety or wellbeing or for that of someone else. Examples of domestic violence The Act further provides a non-exhaustive list of examples of behaviour which amount to domestic violence. These include: Causing or threatening to cause personal injury to someone; Coercing a person to engage in sexual activity or attempting to do so; Damaging or threatening to damage a person’s property; Depriving a person of their liberty or threatening to do so; Threatening a person with the death or injury of the person, child of the person, or someone else; Threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed; Causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person; Unauthorised surveillance of a person; and Unlawfully stalking a person. It is important to also note that a person who supports or procures a person to engage in domestic violence is taken to also have committed domestic violence. Behaviour that constitutes domestic violence is so broad it is possible to see why many family law matters involve allegations of domestic violence, especially in the heat of separation. For example, in the heat of separation one party may be devastated by the end of the relationship and just as he/she walks out the door they say words to the effect “ I might as well kill myself, life is not worth living anymore ”. Expressing this could amount to an act of domestic violence as it is threatening to commit suicide so as to torment the victim. Emotional and psychological abuse can constitute domestic violence Emotional and psychological abuse is behaviour by a person towards another that torments, intimidates, harasses or is offensive to the other person. Some examples of this behaviour include: Following a person when the person is out in public including by vehicle or on foot; Remaining outside their home or place of work; Repeatedly contacting them by telephone, SMS, email or social networking sites; Repeated derogatory taunts, including racial taunts; Threatening to disclose a person’s sexual orientation without their consent; Threatening to withhold a person’s medication; and Preventing a person from having contact with family and friends or preventing a person from expressing their cultural identity. Intimidating and/or harassing behaviour Intimidation is a process where the aggrieved is made fearful or overawed, so much so that their behaviour is influenced. Harassment involves repeated or persistent conduct which is annoying or distressing rather than something that would cause fear. It is often unclear what is considered intimidating or harassing behaviour, and this may require a subjective assessment based on the individual circumstances in each case. Behaviour which constitutes intimidation or harassment could include driving a vehicle in a way which is annoying and upsetting to the aggrieved because of concerns about their safety or deliberately standing close to an aggrieved while making a telephone call to prevent the aggrieved from having a private conversation. Urgent assistance to keep you safe If your safety or that of your children is at imminent risk, call 000 and, where possible, leave the premises and go to a safer place. If you are experiencing domestic violence that puts your safety and/or the safety of your children at risk (physical, emotional or financial), you can contact DV Connect on 1800 811 811 for immediate assistance. They operate 24/7.   Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2021/february/types-domestic-violence/ Mon, 08 February 2021 00:00:00 There has been a noticeable surge in the Australian Health Practitioner Regulation Agency (‘AHPRA’) making telephone contact with Registered Health Practitioners (‘Practitioner’) via telephone after a notification (a complaint or submission of a concern) has been received against their registration and ‘interviewing’ the Practitioner about the notification. This article addresses the dangers of responding to the initial AHPRA inquiry over the phone during the first point of contact. Practitioners are often caught unaware by these calls and do not know what to do. Sometimes they make statements that are detrimental to their interest and that have severe consequences, such as suspension of their registration. Making early statements to AHPRA may appear to many Practitioners, to help their cause. This is often far from the truth.   Statements over the phone can be detrimental to you Making a statement over the phone to AHPRA is often detrimental to your interests in defending yourself against a notification. It is important to note that AHPRA has the power to, and do record telephone conversations. File notes and transcripts of telephone conversations made at an early juncture in the notification process can be produced and used in determining whether action against your registration is necessary. It is important that you understand that this is not the only opportunity you will have to provide your response to a notification and share your side of the story. AHPRA will invite you to provide written submissions in respect of a notification as part of the notification and investigation process. You should never provide any statements to AHPRA over the telephone, or in writing, without first seeking legal advice. Seek legal advice from a health lawyer If you receive written communication or a telephone call from AHPRA in relation to a notification against your registration, it is vital to seek legal advice immediately. You need to understand the notification process, your rights and ensure you protect your interests (notably your registration). Hall Payne Lawyers are highly skilled in advising and representing people in AHPRA and regulatory complaint processes. We can assist you whether it is related to your employment or even professional registration. If you need advice or representation in relation to any type of disciplinary matter, including AHPRA matters, you should seek advice as early as possible.  We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article interesting or useful? You may also like to read: Health practitioners’ obligations to continually update their National Board Professional conduct; maintaining boundaries between health professionals and patients https://www.hallpayne.com.au/blog/rss/blog/2021/february/statements-to-ahpra/ Mon, 01 February 2021 00:00:00 We are often asked what the difference is between a parenting plan and parenting consent orders. This blog will provide an overview of parenting consent orders and parenting plans and how each option may affect parties. What is a Parenting Plan? A parenting plan is a less formal way of you and your former partner agreeing, in writing, about arrangements for your child/ren. There is no set form and the document doesn’t get filed in Court. It can range from being short and simple to extremely detailed, so long as it is clear. Importantly, it must deal with matters relating to the care, welfare and development of a child, such as: who the child will live with; the time a child spends and communicates with the other parent; how parents are to make decisions on major long-term issues relating to the child; and considerations for the child’s day to day life. A parenting plan is a written document that you can use to rely on instead of a verbal agreement and without the need to go to Court. Parenting plans are flexible and can be changed any time upon written agreement by both parties. For a parenting plan to be valid it must be; in writing; dated; and signed by each parent. Limitations of Parenting Plan The limitation of a parenting plan is that it is not a legally binding document, unlike a parenting consent order. Therefore, if you break a parenting plan you are not breaking the law and accordingly, you cannot be forced by the courts to abide by the plan unless it is made into an Order. Benefits of a Parenting Plan If the other party fails to comply with a parenting plan and court proceedings are later initiated, the court must consider the terms of the parenting plan to determine the previous intentions of the parties. For example, if one parent unilaterally withholds a child, that parent will have to provide evidence to the court justifying that withholding. This could be done, for example, by demonstrating substantial changes in the other parent’s ability to care for the child after the parenting plan was made. A parenting plan is significantly cheaper and more cost effective than consent orders. However, the court is not bound to the terms of the parenting plan and may make significantly different orders in accordance with what the court considers to be in the best interests of the child. A parenting plan is significantly cheaper and more cost-effective than consent orders. Going through the court system can be stressful for all parties, including the children. If parents wish to avoid the court system but still want to maintain control over their parenting arrangements, a parenting plan may be a worthwhile option to consider. This can work particularly well if both parents are amicable and able to freely communicate about issues pertaining to the child.    What are parenting consent orders? A parenting consent order is a written agreement which must be approved by the court. Anyone who is concerned about the care, welfare and development of a child, can apply for parenting orders. Parents who have not commenced court proceedings with respect to their children can obtain parenting consent orders by filing an Application for Consent Orders with the court. The proposed orders will be considered by the court and will be made if it is deemed to be in the best interests of the child. The filing fees for your Application for Consent Orders at the time of writing is $170. Parents who have current court proceedings for childrens’ matters will not need to file an Application for Consent Orders. Breaching consent orders Unlike parenting plans, consent orders are more formal in their drafting and are legally enforceable as they have previously been considered by the court. Therefore, if you do not follow the orders you may be penalised by the court. Consent orders obligate you to do everything the order says and you must take positive action and reasonable steps to put the order into effect. You can read more about your obligations to consent orders in our article “ My child does not want to spend time with my ex. Can I force them to? ” Benefits of consent orders Although consent orders can be costly (from $2,000 to $5,000 depending on the complexity of the matter and the amount of negotiation required with the other party or lawyer), they do provide certainty and security. Consent orders provide certainty and security. It is worthwhile considering entering into consent orders if you believe the other parent may be likely to break any informal agreement and you wish to have some enforceability. They can also be more beneficial if the relationship with your former partner is not amicable or you are unable to communicate reasonably. How long does a consent order last? Section 65C of the Family Law Act 1975 (Cth) states all parenting court orders cease when the child turns 18 years of age, marries or enters into a de facto relationship. Once parenting orders are made by the court they cannot be changed unless both parties agree to the change. Without reaching an agreement, the courts are only able to vary parenting orders if it is satisfied there is a significant change in circumstances.   Which is right for me? The answer to this is not a “one size fits all”. Every family is different and so is the relationship between both parents. Therefore, it is important to consider all your individual circumstances when deciding which is right for you. Since consent orders require an Application to be filed with the court as well as formal drafting of the orders in the appropriate form, lawyers are usually involved. Not having lawyers involved in the process may cost you more down the track if you find that your parenting orders are not sufficiently appropriate. It is important to note that even though a parenting plan is not a court order, a parenting plan that is signed after a consent order is made may override the consent order. Accordingly, if the parenting plan is different to the consent order, you cannot rely on the consent order or allege that a consent order has been breached by the other parent. Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2021/january/parenting-plan-v-consent-orders/ Mon, 25 January 2021 00:00:00 If a police officer has given you a Notice to Appear ( NTA ) it means you have been charged with a criminal offence and you need to attend court to answer to it. The NTA will contain important information that you need to know, including: the offence/s that you have been charged with; the time, date and place that the offence/s are said to have occurred; the time and date that you are required to attend court; and the relevant court that you are required to attend. It is essential that you attend court on the date and time listed on the NTA. A failure to do so may result in a warrant being issued for your arrest. A failure to attend court may result in a warrant being issued for your arrest. In addition to issuing a NTA, the police officer may also give you another notice, such as a Notice to Provide Identifying Particulars or a Notice to Provide a DNA Sample. If you have received one of these notices, you are required to attend the police station listed on the notice within seven days of receiving it. A failure to do so may result in further charges being laid against you.   Do I need to notify my employer? If you have received a NTA, you also need to consider whether you have an obligation to notify your employer and/or a professional body. There may be a clause in your contract of employment, or in one of your employer’s policies, that requires you to notify your employer if you are charged with a certain type of criminal offence. For example, in Queensland, public servants are generally required to provide written notification to their supervisor within two days of them being charged with a criminal offence that carries a maximum penalty of two or more years of imprisonment. If you are employed in a role that requires registration or practising rights (for example, a doctor, nurse, lawyer etc), you may also need to notify the relevant professional body that you have been charged with a criminal offence. Often, professional bodies require written notification of a practitioner being charged with certain types of criminal offences within a very strict timeframe. You can read more reporting requirements specific to health practitioners in our blog “ Health practitioners’ obligations to continually update National Board ”. It’s important to note, however, that notification requirements differ between professional bodies, so you need to act quickly and obtain legal advice as soon as possible. Depending on how the criminal matter is dealt with, you may also have an obligation to notify your employer and/or professional body of the outcome. What should I do if I have received a NTA? If you have received a NTA it is essential that you seek legal advice immediately. The criminal law team at Hall Payne Lawyers are well equipped to provide advice in relation to a criminal offence you have been charged with, in addition to any obligations you may have in relation to notifying your employer and/or a professional body. https://www.hallpayne.com.au/blog/rss/blog/2021/january/notice-to-appear/ Mon, 18 January 2021 00:00:00 Being charged with a serious criminal offence often results in a health practitioner being subject to immediate suspension of their registration, otherwise known as ‘immediate action’. Hall Payne recently acted for a member of the Queensland Nurses and Midwives Union (QNMU) who had action proposed to have their registration immediately suspended due to a serious assault charge. In proposing to suspend a practitioner’s registration, the Nursing and Midwifery Board (”NMBA”) often contend that it is in the public interest to take immediate action in relation to their registration, as: the alleged offence may erode the intrinsic trust that the public has in the profession to provide care to patients; and the practitioner’s suitability to hold registration is unclear. Argument against suspension Public interest argument In opposing the public interest argument raised by the Board, we relied on the case of Farschchi v Chinese Medical Board of Australia . In this case, it was found that there is a public interest in ensuring action is only taken when it is necessary to do so.  We argued that immediate action was not necessary as the circumstances surrounding the incident did not call in to question the practitioner’s suitability to practice with integrity, truthfulness, dependability or compassion. Further, the public must see an application of the presumption of innocence being applied to the practitioner who, at this point, had not been found guilty of a criminal offence. Public confidence argument In relation to any question of whether public confidence in health practitioners generally is undermined by this case, we suggested that, as found in CJE v Medical Board of Australia , the public would understand that allegations made against one individual practitioner are rare and that the profession as a whole should not be judged on those allegations.  NMBA decision: no action taken The Board considered Hall Payne’s submission and decided not to take action in respect of the practitioner’s registration. This was an excellent result for the member, enabling them to continue to practise without any conditions on their registration. Do you need legal advice? By seeking legal advice early, the member contributed to achieving a positive result. If you are charged by police with an offence which is likely to impact on your professional registration, it is imperative you seek immediate advice from your Union or a lawyer experienced in disciplinary proceedings.  Most importantly do not respond to AHPRA (either verbally or in writing) until you have sought legal advice. If you need advice or representation in relation to any type of disciplinary matter, including AHPRA matters, you should seek advice as soon as possible. Legal advice and assistance continues during COVID-19 We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. Get help from a health lawyer  You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article interesting or useful? You may also like to read: Health practitioners’ obligations to continually update their National Board Professional conduct; maintaining boundaries between health professionals and patients Making statements over the phone to AHPRA https://www.hallpayne.com.au/blog/rss/blog/2021/january/nursing-board-no-action-taken/ Mon, 11 January 2021 00:00:00 Updated 18 March 2021 Labour hire employees are workers employed by one company (a company with whom they have their employment agreement) but perform their work at an external company (the “client” of their employer). An increasing number of workers in Australia perform work under a labour-hire agreement. This has triggered important questions for many of those workers: What rights do I have as a labour-hire employee? Am I protected from being unfairly dismissed if my employer’s “client” no longer wants me? Under most labour-hire agreements, a worker will have an employment agreement with their employer but perform their work for their employer’s “client”. The worker will not have an employment agreement directly with the company where they perform their work. Most labour-hire employers will have an employment agreement with the worker and a separate agreement with the “client”. This can create a conflict between the obligation of the labour-hire employer to provide fairness to its employees, with its obligations to the host company under its service agreement. Regardless, as has been previously expressed by the Commission in a successful case for labour-hire employee Kim Star , who Hall Payne represented: “However, the contractual relationship between a labour-hire company and a host employer cannot be used to defeat the rights of a dismissed employee seeking a remedy for unfair dismissal. Labour hire companies cannot use such contractual relationships to abrogate their responsibilities to treat employees fairly.” In the recent decision of Johnson v Chelgrave Contracting Australia Pty Ltd , the Fair Work Commission has considered the questions raised above. Background Chelgrave Contracting Australia Pty Ltd ( Chelgrave ) is a labour-hire provider of services to a number of businesses. One of Chelgrave’s clients is Carlton United Breweries ( CUB ). Chaya Johnson was employed by Chelgrave as a maintenance fitter. He was employed from May 2017 until 28 May 2020. Mr Johnson was engaged to perform work for CUB for the entirety of his employment with Chelgrave. Investigation into alleged misbehaviour leading to termination CUB reported to Chelgrave that it had concerns about Mr Johnson’s behaviour in relation to a safety incident that occurred when Mr Johnson was using a palletising machine on 21 April 2020. Chelgrave investigated the concerns and found that: Mr Johnson broke safety rules by failing to isolate a palletising machine that he performed work on; and he was not entirely responsible for what happened as there was a known difficulty and some deficiencies with the palletising machine. Chelgrave’s investigation report concluded that Mr Johnson should be issued with a final warning for his unintended failure to operate the palletising machine safely. Termination Following the investigation, CUB informed Chelgrave that it no longer wanted Mr Johnson to perform work at its site. Despite Chelgrave’s report recommending that Mr Johnson be given a final warning rather than having his employment terminated, Chelgrave terminated Mr Johnson’s employment. Chelgrave advised Mr Johnson that his employment was terminated on the basis that CUB no longer wanted him to return to its site. Unfair dismissal Mr Johnson filed an unfair dismissal application alleging that there was no valid reason for his dismissal and that his dismissal was otherwise harsh. The Fair Work Commission concurred with the Chelgrave investigation report in many respects and concluded that Mr Johnson’s dismissal was: harsh, because the penalty of dismissal was disproportionate to the established facts; unjust, because Mr Johnson was not afforded an opportunity to provide a response to Chelgrave’s consideration of dismissal; and unreasonable, because it did not adequately take into account the contributing factors to the events of 21 April 2020. The Fair Work Commission ordered that Mr Johnson be reinstated The Fair Work Commission ordered that Mr Johnson be reinstated to his position at CUB with back-pay and continuity of service. Although Chelgrave argued that CUB would not allow Mr Johnson to return, there was no actual evidence which led to that effect. The Full Bench of the Fair Work Commission quashed the decision to reinstate Mr Johnson The Fair Work Commission’s decision was appealed by CUB. On 8 February 2021, a Full Bench of the Fair Work Commission quashed the original decision insofar as it ordered reinstatement of Mr Johnson to CUB on procedural fairness grounds. That decision has since been the subject of a judicial review application to the Federal Court, which at the time of writing, is ongoing.   Lesson for labour-hire employees Mr Johnson worked at CUB’s site for the entirety of his employment and CUB no longer wanted him to work there due to his safety breaches. In the labour-hire employer's view, this provided grounds upon which to terminate Mr Johnson’s employment. In rejecting that simplistic view, the Fair Work Commission concluded that Chelgrave needed to have a valid reason for terminating Mr Johnson and had to afford him procedural fairness, irrespective of CUB’s view on the desirability of continuing to have Mr Johnson work at its site. This approach demonstrates that labour-hire employees will be able to utilise the unfair dismissal provisions of the Fair Work Act in circumstances in which there is no valid reason for their dismissal and/or they are denied procedural fairness. The Full Bench’s decision on 8 February 2021 indicates, however, that there may be practical difficulties in persuading the Fair Work Commission to make an order for reinstatement, particularly if the agreement between the employer and the host company is such that the host company may refuse reinstatement. This is  an issue that arose in  Star v Workpac  and which we expect to arise in future cases. Get help from an employment lawyer  If you’ve been terminated, whether as a labour-hire employee or not and you feel that termination was unjust, unfair or unreasonable, seek immediate advice from your Union or a lawyer experienced in employment law. There are strict time limits which apply to unfair dismissal claims. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2021/january/labour-hire-ufd/ Tue, 05 January 2021 00:00:00 What is transfer duty/stamp duty? Transfer duty or stamp duty as it was previously known, is a government tax levied on a number of different transactions. For the purposes of this blog, we will be discussing transfer duty with respect to transferring land or real property (real estate) during the process of property purchase. Transfer duty was previously known as stamp duty since the transfer documents and contract of sale had to be ‘ stamped’ as part of the assessment. It is important to note that the transfer documents and Contract are still required to be stamped and it is just the name that has changed. Aside from the actual cost of the property you are purchasing, transfer duty is often one of the largest additional upfront costs and is often overlooked by first home buyers. Therefore, it is fundamental to know how much transfer duty you will be liable to pay the Office of State Revenue when purchasing a property. The amount will vary for each transaction depending on your individual circumstances and the property value. How much is transfer duty in Qld? Transfer duty in Queensland is calculated on the price paid for the property or the market value of the property, whichever is greater, and on your individual circumstances. The price paid for the property is the price noted in the Contract.  The transfer duty is then calculated on a scale similar to the way income tax is calculated. So, if you purchase a property worth $250,000, using the table below (current at the time of writing), it will attract transfer duty of $7,175. If the property was worth $500,000, your transfer duty will be $15,925. Dutiable value Duty rate Not more than $5,000 Nil More than $5,000 up to $75,000 $1.50 for each $100, or part of $100, over $5,000 $75,000 to $540,000 $1,050 plus $3.50 for each $100, or part of $100, over $75,000 $540,000 to $1,000,000 $17,325 plus $4.50 for each $100, or part of $100, over $540,000 More than $1,000,000 $38,025 plus $5.75 for each $100, or part of $100, over $1,000,000   Transfer duty calculators An easy method of calculating the amount of stamp duty you are required to pay, is by using the online transfer duty estimator. The estimator can be accessed on the following link . For more complex matters it is suggested that you use the transfer duty calculator available from the OSR (Queensland’s online system for state taxes and duties) website rather than the online estimator.  Transfer duty concessions – when will you pay less transfer duty? The above examples are the full rates of transfer duty payable without taking into account any concessions. These rates would apply if you are a business acquiring a property or if you are using the property for investment purposes. The Queensland Government offers three types of concessions depending on your individual/ownership circumstances: Home concession : A lower rate of duty is applied when you buy a home as your principal place of residence (not your first home), move into it within 12 months of purchase and not generate an income from the property. First home concession : This concession applies if you are purchasing your first property (worth less than $550,000), intend to occupy it as your principal place of residence after settlement and do not generate an income from the property for 12 months. First home vacant land concession : Applies if you are purchasing a vacant block of land (worth less than $400,000) where you intend to build your first home. Using the examples referenced earlier, applying a home concession will reduce your transfer duty liability for a property worth $250,000 from $7,175 to $2,500 and a property worth $500,000 from $15,925 to $8,750. If this was your first home, you would pay $0 in transfer duty. Likewise, if you purchased your first block of land under $250,000 to build your first home, you will pay $0 transfer duty. As you can see, these concessions can save you a large amount of money and it is worth talking to a solicitor or a conveyancer to determine if you are eligible for these concessions. When is transfer duty payable? Transfer duty is payable 30 days from the contract becoming unconditional. Considering most contracts settle within 30 days, transfer duty is usually paid within the required timeframe. If transfer duty is not paid by the due date, Unpaid Tax Interest (UTI) will be added to the transfer duty amount. Exceptions to transfer duty Some common exceptions for transfer duty in Queensland apply to property that transfers as a result of death or divorce. Hall Payne no longer provides services in property law and conveyancing If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2020/december/transfer-duty/ Tue, 29 December 2020 00:00:00 A domestic violence order (also called a domestic violence protection order) can only be made if a “ relevant relationship ” exists between the person seeking the order (the aggrieved) and the person who has committed the violence (the respondent). Section 13 of the Domestic and Family Violence Protection Act (2012) ( the Act ) defines a “ relevant relationship ” as: an intimate personal relationship; or a family relationship; or an informal care relationship. 1.  Defining ‘an intimate personal relationship’ Under section 14 the Act, an intimate personal relationship is either: a spousal relationship; or an engagement relationship; or a couple relationship. a) Spousal relationships A spousal relationship exists between spouses. A spouse includes a former spouse as well as a parent or former parent of any child of the relationship. An example of a former parent is where the birth parent stops being a parent of a child. A parent in these circumstances means a child’s mother or father and anyone else having parental responsibility for the child other than child protection. For an Aboriginal or Torres Strait Islander child, a parent is a person regarded by tradition or custom as being a parent of that child. It is important to note that a parent does not include a person standing in the place of a child on a temporary basis; or an approved foster carer for the child. b) Engagement relationships An engagement relationship exists between two persons if the persons are currently, or were engaged to be married to each other. It includes a betrothal under cultural or religious tradition. c) Couple relationships A couple relationship exists between two people if the persons have currently, or have had a relationship as a couple. The court will have regard to numerous factors in deciding if a couple relationship exists. These include: the circumstances of the relationship – the degree of trust between the persons and the level of each person’s dependence on and commitment to the other person; the length of the relationship; the frequency of contact between the persons; the degree of intimacy; whether the trust, dependence or commitment is/was of the same level; whether one of the persons is/was financially dependent on the other; whether the persons own/ed any property together; whether the persons have/had joint bank accounts; whether the relationship involves/involved a sexual relationship; and whether the relationship is/was exclusive. A couple relationship may exist even if the court makes a negative finding in relation to any or all of the latter six factors above. For example, two elderly people who form a relationship based upon companionship or an interest in travelling could be in a couple relationship. The two people may not reside together and may not be financially dependent on each other but still be in a relationship that involves trust, emotional dependence and commitment and frequent contact such that it can be characterised as a couple relationship. A couple relationship may exist between same-sex persons. Dating once or on several occasions does not automatically mean a couple relationship exists. 2.  Defining ‘a family relationship’ The Act defines a family relationship to exist between two persons if one of them is, or was, a relative of the other. A relative of a person is someone who is ordinarily understood to be or to have been connected to the person by blood or marriage. Former relatives can include a person’s former mother-in-law (where the person is no longer in a spousal relationship with the son or daughter). Examples of a person’s relative can include a: spouse; child; stepchild; parent; step-parent; sibling; grandparent; aunt; nephew; cousin; half-brother; mother/father-in-law or aunt/uncle-in-law. 3.  Defining ’an informal care relationship’ An informal care relationship requires only one person to be, or have been dependent on another person. For example, this could be a carer who helps in an activity of daily living such as dressing or personal grooming, preparing or assisting persons with eating meals, shopping for a person’s groceries or telephoning to make medical appointments for a person. This category can include a carer who is receiving a pension or allowance for providing the care, or who is reimbursed for out of pocket expenses. Importantly, an informal care relationship does not arise between a child and a parent of that of a child. Domestic violence applications involving minors and parents A common question we receive relates to children under 18 years of age. Can a domestic violence application be made against his/her own parents or vice versa? The answer to this is no. This area is covered by the child protection system which applies to children under 18 years where the child is at unacceptable risk of harm. The child cannot be named as either an aggrieved or a respondent where there is a family relationship between the child and the other party. Domestic violence applications involving minors in an intimate personal relationship A child can, however, be protected by a domestic violence order by including the child as a named person in any application which is made for the benefit of another person (for example, the mother) as the aggrieved. If there is an intimate personal relationship (that is, a spousal or engagement or couple relationship) or an informal care relationship that exists between the child under 18 and the other person, then a child can be named as an aggrieved or a respondent in the application.  Urgent assistance to keep you safe If your safety or that of your children is at imminent risk, call 000 and, where possible, leave the premises to a safer place. If you are experiencing domestic violence that puts your safety and/or the safety of your children at risk (physical, emotional or financial), you can contact DV Connect on 1800 811 811 for immediate assistance. They operate 24/7.  Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2020/december/dv-protection-orders/ Mon, 21 December 2020 00:00:00 Being the subject of an AHPRA notification can be one of the most stressful experiences in a health professional’s working life. Handled poorly, the consequences can be financially and mentally ruinous, with health practitioners facing suspension or cancellation of their registration. Hall Payne recently acted for a member of the Queensland Nurses and Midwives Union (QNMU) who had an Australian Health Practitioner Regulation Agency (AHPRA) notification made against their registration. The basis of the notification was that the member had allegedly sexually harassed a former colleague some two years earlier. The member was devasted by the allegations which were untrue. Hall Payne robustly argued that the allegations were vexatious, untrue and incapable of being substantiated. We relied on s.151 (1) (a) of the Health Practitioner Regulation National Law (Queensland) , seeking that the NMBA take no further action against the member’s registration because the notification was frivolous, vexatious, misconceived and lacking in substance. The Nursing and Midwifery Board’s decision The allegations raised in the notification were false and baseless. There was no evidence available that could substantiate the allegations. The entire contents of the notification were damaging to our client’s professional reputation and good standing in the profession. The Nursing and Midwifery Board considered Hall Payne’s submissions and determined that the contents of the notification were false and brought without sufficient grounds. The Nursing and Midwifery Board decided to take no further action in respect of the member’s registration on the basis that the notification was frivolous, vexatious, and without evidence. This was an excellent result for the member, enabling them to continue to provide quality nursing care and education within the community without restrictions or conditions. Seek legal advice from a health lawyer  The action of the member in seeking legal advice early had a significant impact on achieving a positive result. If you receive an AHPRA notification, it’s imperative you seek immediate advice from your Union or a lawyer experienced in disciplinary proceedings. Most importantly, do not respond to AHPRA (either verbally or in writing) until you have sought legal advice. Hall Payne Lawyers are highly skilled in advising and representing people in AHPRA and regulatory complaint processes. We can assist you whether it is related to your employment or even professional registration. If you need advice or representation in relation to any type of disciplinary matter, including AHPRA matters, you should seek advice as early as possible.  We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article interesting or useful? You may also like to read: Health practitioners’ obligations to continually update their National Board Professional conduct; maintaining boundaries between health professionals and patients Making statements over the phone to AHPRA https://www.hallpayne.com.au/blog/rss/blog/2020/december/vexatious-ahpra-notification/ Mon, 14 December 2020 00:00:00 The Fair Entitlements Guarantee (‘FEG’) is a safety net scheme that provides assistance for eligible employees who have lost their jobs under specific circumstances. In this blog, we will look at who is entitled, what can be claimed, how to apply and who is ineligible. Why was FEG introduced? The previous GEERS scheme was subsequently replaced by the FEG, which came into effect in December 2012. The FEG was introduced to protect the entitlements of employees who have lost their jobs due to the insolvency or bankruptcy of their employer. With the introduction of the JobKeeper Payment scheme earlier in 2020, which is a subsidy for businesses significantly affected by COVID-19, the government also introduced temporary anti-insolvency laws that last until 31 December 2020. These laws make it harder for creditors to put companies into administration and shield directors from insolvent trading claims. The changes have kept some redundancies at bay, but we anticipate that a rise in company insolvencies, with consequent redundancies is inevitable, when the emergency pandemic measures are withdrawn. Who can apply for FEG entitlements? Employees who have lost their job and meet the following criteria may be able to apply for FEG entitlements. Insolvency of your employer or where you were terminated after, or within six months before, the appointment of a liquidator or bankruptcy trustee for your employer; You are owed at least one of the entitlements listed under ‘What can be claimed through the FEG” below; and You were an Australian citizen or the holder of a permanent visa or special category visa that allows you to stay and work in Australia at the time your employment ended. What can be claimed through the FEG? If you are eligible to apply for FEG, you can claim any of the following outstanding entitlements: unpaid wages - up to 13 weeks; unpaid annual leave and long service leave; payment in lieu of notice - up to five weeks; and redundancy pay - up to four weeks per full year of service. Unpaid Superannuation Guarantee contributions cannot be claimed through the FEG scheme. You should pursue claims for unpaid Superannuation through the ATO. There are strict time limits to lodge your application You must lodge a FEG claim within 12 months from the later date of when a liquidator was appointed to your former employer, or your employment with your former employer was terminated. Who is ineligible for FEG? Unfortunately, you are not eligible to apply for FEG if, for example, you: were a contractor; were a director of the company within 12 months before liquidation; were a relative (as defined by the Corporations Act 2001) of an employee director of the company within 12 months before liquidation; or you do not meet all of the conditions of eligibility set out in the Fair Entitlements Guarantee Act 2012 .  How do I make a claim? You can start your claim on the Federal Government’s Fair Guarantee website here . What does this mean for employees? If your employer is in liquidation or bankruptcy, you may be able to lodge a claim for FEG assistance for certain categories of employment entitlements that are left unpaid by your employer. In order to apply for FEG assistance, a liquidator or bankruptcy trustee must have been appointed to the employer, and you must have lost your job due to the company's insolvency or bankruptcy (or within the six-month period prior to the appointment of an insolvency practitioner to the company). If the employer has not entered bankruptcy or liquidation, FEG payments are not available. In those circumstances, you may be entitled to commence a wage claim against your former employer if they are refusing to pay any outstanding entitlements. Conclusion FEG is a scheme of last resort that provides financial assistance for unpaid employee entitlements in insolvency. FEG Online Services is the best way to make and monitor your FEG claim. In the event you are not eligible for FEG, there may be other avenues open to you to pursue your unpaid entitlements, including for example taking legal action against the directors or owners of your employer personally. Get help from an employment lawyer If you think you may be eligible for FEG assistance but are unsure whether you meet all the conditions and you are looking for advice and assistance, Hall Payne’s experienced industrial and employment team , across the country, can help. You can contact us by phone or email to arrange a consultation ; either face-to-face at one of our offices, by telephone or by videoconference consultation. Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. https://www.hallpayne.com.au/blog/rss/blog/2020/december/feg/ Mon, 07 December 2020 00:00:00 As school holiday periods approach at various times during the year, there is no doubt many parents will plan to travel with their children either intra-state, inter-state or overseas (once borders re-open). If you are separated, however, there are some things you need to know about travelling with your children, including what consent if any, you require from your former partner or from the courts. Travelling within Australia (intra-state or inter-state travel) If your travel plans do not involve leaving Australia, then you have much more flexibility as there are no restrictions for travelling with children within Australia during the time the children are in your care, unless specifically dealt with in your Family Court Orders. If a parent breaches those orders by not returning the children as required, there are options to have the children returned to your care. It is common courtesy and a good example of co-parenting practice, to let the other parent know where you are planning to travel to and for how long. Travelling overseas with children To travel overseas you will require either: formal written consent from the other parent; or a Family Court Order permitting you to depart Australia with your children . If neither of these is obtained and you travel with the children overseas, it becomes a criminal offence under section 65Y of the Family Law Act (1975) which carries a penalty of up to three years imprisonment. What if we cannot reach an agreement? If both parents are unable to reach an agreement for the children to travel overseas then an application the court will need to be made seeking an order allowing your children to travel with you. If you have discovered your ex-partner intends to travel with the children overseas without your consent, you can make an urgent application to the court preventing the children from travelling by placing their names in the Australian Federal Police’s Family Law Watchlist. These types of urgent applications are taken seriously and Family Courts will usually hear these matters ex parte, meaning the other party does not need to be present for the matter to proceed.  What if I already have Family Court Orders in place? Depending on your personal circumstances you may already have family law orders in place which permit you to travel with your children overseas according to the conditions stated in those orders. Standard conditions could include: providing a detailed itinerary of the travel to your former partner; providing suitable contact details while you are away; ensuring you have return flight bookings; and obligations to have appropriate vaccinations etc. You will be permitted to travel with the children as long as you have fully followed your orders. It is also advisable to take a certified copy of your family law orders away with you, just in case you are required to provide it to authorities.    What if I do not have current Family Court Orders? If you do not have Family Court Orders in place which permit you to travel with your children, then you will need to make an application to the court. The court will, among other things, consider: the purpose of travel; any threat to the welfare of the child from travelling to the proposed country; the duration of the child’s proposed travel plans; the credibility of your promise to return to Australia; the effect on the child of any deprived time with the other parent; and of course, the best interests of the children. The court will ultimately need to be satisfied that the travelling parent will very likely return to Australia due to their permanent employment, assets, extended family and so on. In some cases, a court may order a security bond to be paid prior to departure. This money could then be used by the non-travelling parent for legal costs, travel costs and other associated fees if the child has to be returned to Australia. The Hague Convention and international child abduction The Hague Convention is an agreement about international parental child abduction and international child access. Many, but not all countries are signatories to the Convention. If you are intending to travel to a country which is a signatory to the Hague Convention , your security bond could be reduced and the prospects of your application to the court will, of course, be vastly improved. This is because countries who are part of the Convention agree between each other to uphold child custody orders and will return children if they are moved or kept overseas without the appropriate consents. You can see a list of Hague Convention signatories here. If a court considers the ‘risk of flight’ of the travelling parent to be too great, it may order that the children not be removed from Australia and their names placed on the Australian Federal Police watch list.   In particular, if the travelling parent does not have the means to pay a security bond, the court will also consider if the intended country of travel is a signatory to the Hague Convention. A word of caution… If you have Final Parenting Orders which provide you with sole parental responsibility for the children, unless those orders specifically allow for you to also arrange international travel for the children without reference to the other parent, then section 65Y of the Family Law Act (1975) still applies and will require both parents consent prior to your departure. This clearly emphasizes the importance of having properly drafted orders and the importance of having sound legal representation in your family law matters. Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2020/november/travel-with-children-after-separation/ Mon, 30 November 2020 00:00:00 In June 2020, Hall Payne Lawyers represented the Construction, Forestry, Maritime, Mining and Energy Union (‘ CFMMEU ’) and two of their officials in relation to allegations of the taking of unlawful industrial action at the Qube construction site at Broadbeach in Queensland. On 12 November 2020, the Court handed down its judgment , dismissing the proceeding. Background to the matter As a result of a dispute which arose between an employee and the CFMMEU delegate at the Qube construction site, the delegate was stood down from work. A CFMMEU organiser subsequently met with employees at the site to discuss their concerns regarding the matter and further meetings were held over the following days. During the meetings, which were held in the lunch shed, it was consistently raining outside. The ABCC later brought proceedings and alleged that the CFMMEU had contravened: 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (‘ BCI Act ’) in organising ‘unlawful industrial action’; and 348 of the Fair Work Act 2009 (Cth) (‘ FW Act ’) in organising ‘industrial action’ against the principal contractor with intent to coerce them into reinstating the delegate. The ABCC sought for the Court to impose significant penalties on our clients as a consequence of the alleged contraventions. Determining if ‘unlawful industrial action’ was taken The main part of our case was the contention that the workers had not taken ‘industrial action’ under the BCI Act as the employees were entitled to not perform work under the Building and Construction General On-site Award 2010 (‘ Award ’) and the custom and practice at the site as a result of inclement weather. In determining whether the employees took ‘industrial action', the Court was required to determine whether they had any legal obligation to work. Whether the employees were entitled to refuse work was dependent upon the effect of the inclement weather clause of the Award. The Court held that the employees were entitled, under the inclement weather clause of the Award, to refuse work on the basis that it was ‘ unreasonable or unsafe for them to do so, until informed that the site had been cleared for the resumption of work ’ and held that the evidence did not demonstrate that the employees were so informed.  The Court therefore found that the ABCC could not demonstrate that the employees were under any legal obligation to work at the site. Accordingly, the ABCC was unsuccessful in proving that the employees took ‘industrial action’ under the BCI Act.  This meant that the remaining parts of the ABCC’s case fell away and all of the ABCC’s claims were dismissed. Conclusion This win is a significant one for our clients. It provides a timely reminder that an award or agreement can potentially provide a lawful avenue for employees to refuse or fail to attend for work; in this case due to the inclement weather. Get help from an employment lawyer If you encounter issues at work, our industrial and employment law team have been successfully representing workers and unions for over 30 years. We work across the full spectrum of industrial and employment law. Get in touch with a member of our team across Australia for help . https://www.hallpayne.com.au/blog/rss/blog/2020/november/cfmmeu-win-against-abcc/ Mon, 23 November 2020 00:00:00 Social media is everywhere; Facebook, Twitter, Instagram, LinkedIn etc. People of all ages hold social media accounts across multiple platforms. We often use our social media profiles to preserve memories such as family photos, events and notes to friends or relatives.  It may not be common to be asked to deal with a loved one’s social media accounts after they die and therefore the process can be confusing and unfamiliar. However, as the number of social media users increases, this will no doubt be a more common task. What happens to these social media accounts once the ‘owner’ dies? In this article, we explore the most commonly used social media accounts and what currently happens with each account following the death of the account owner. It is important to note that each platform may amend their terms and conditions from time to time. Facebook There are a few options regarding what will happen to your Facebook account should you pass away. You can elect (through your Will) to have it permanently deleted upon your death or you can add a legacy contact who will look after your account. Both options can be accessed in the Facebook Help Centre under “Managing a Deceased Person’s Account” . Once memorialized, the content that had been shared on your account during your life, remains on Facebook. Instagram Instagram has recently allowed accounts to be memorialized. However, an authorized person will need to provide this request. On the other hand, to have an Instagram account removed an immediate family member or representative authorized to act on behalf of your estate needs to complete a removal request form in the Instagram Help Centre . This will require providing the relevant documentation to have the account removed.   LinkedIn and Twitter Both LinkedIn and Twitter accounts are similar, with a verified family member or a person authorized to act on behalf of the estate needing to contact each platform to deactivate accounts. For LinkedIn, visit “ Deceased LinkedIn Member ”. For Twitter, visit “ Contacting Twitter about a deceased family member’s account ”. Keeping records of your social media accounts The best practice at the moment includes keeping a list of your social media accounts and login details somewhere secure and to update it regularly. This will be particularly important when it comes to accounts that generate financial revenue. Login details should not be included in Wills as these can be made public documents after your death. Dealing with your social media accounts in your Will Your wishes as to what will happen to your social media accounts in the event of your death can be captured in your Will. This reduces the burden on your loved ones and ensures accounts are dealt with according to your wishes. If you would like to create a new Will or update your current Will to reflect how your social media accounts are dealt with or if you require assistance with administering an estate, you should contact a member of our Wills & Estate Planning team . Legal advice and assistance continues during COVID-19 We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. Get help from a Wills & Estate lawyer You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2020/november/social-media-after-death/ Mon, 09 November 2020 00:00:00 Making a workers’ compensation claim can be a confusing process, especially if you’ve never done it before. But it’s also a very important step to take to ensure your rights are protected in the unfortunate event you are injured at work. In this post, we set out some important tips and things to remember when making a WorkCover claim in Tasmania. Who can claim workers compensation in Tasmania? If you’re a worker in Tasmania, there is a good chance that you would be entitled to claim workers compensation in the event of a workplace injury. Most workers in Tasmania are covered under the Workers Rehabilitation and Compensation Act 1988 (the Act) . There are some groups of workers who come under the national “Comcare” scheme. These include: The Commonwealth Government; Australian Government authorities (such as Australia Post); A small number of large businesses (such as Telstra). The Act defines a worker as a person who is engaged in a contract to provides services, or a training contract. The contract does not need to be in writing. It can be a verbal agreement, for instance. Some volunteers, including volunteer firefighters and ambulance officers, are also considered to be workers. How do I make a claim? The first steps There are two steps to making a workers’ compensation claim in Tasmania. The first step is “notice” - telling your employer you’re suffering from an injury or illness. The second is making a “claim” - filling out a physical claim form and obtaining a workers compensation medical certificate. Step #1 - Notice Notice is a really important step and one which can have major consequences for a claim. Notice is notifying your employer, not completing your claim form. Under Tasmanian law, a worker who suffers an injury at work should give notice to their employer as soon as possible. Workers should be aware of what the process is to report an injury or incident in their workplace. Where possible, it’s always best to report the incident by completing a detailed incident report. We also recommend you keep a copy.   If you are unable to complete a formal incident report or your employer does not have a form to do this or an internal procedure for reporting your injury, then it is important that you report the incident to your employer via email or even text message. It is critical that your employer is aware of the incident as soon as practicable and that you have a record of how and when it was reported. Step #2 – Completing and lodging your workers' compensation claim The next step is to get a copy of a “Worker’s Claim for Compensation” form. Having trouble with your claim? Give us a call for advice - 03 6215 8100 This form is normally provided by your employer. If your employer cannot or will not provide you with a form, you can download it from the WorkSafe Tasmania website here . A claim form needs to be completed and given to your employer within six months of your injury, but it’s best to do so as soon as possible after the injury. If you are making a claim outside of this six-month time limit, you will likely be asked to provide reasons why your claim is being lodged late. Reasons for making an out of time claim which may be valid include: You did not know you had a workplace injury; Your employer knew you were injured but did not tell you that you had the right to make a claim; Serious illness or incapacity which prevented you from making a claim. Generally, payments and medical benefits can be backdated up to 14 days but not further, so it is important to make a claim as soon as you can. Once you have completed your claim form, you need to take it to your treating doctor (usually your GP), who will need to complete a “workers compensation medical certificate”.  This is a special type of medical certificate which must be completed by the GP using the prescribed form. You must lodge your completed WorkCover claim form together with your workers' compensation medical certificate with your employer. We recommend that you do this in person or electronically if possible. Remember to keep a copy of your claim form. What happens once your claim is lodged? Once your claim has been lodged, if you are unable to work, or unable to work your full hours, you should start to receive workers compensation payments within 14 days. At this point, you will normally receive a letter from the employer confirming that you have made a claim. If your employer has a workers compensation insurer, you may receive a letter from the insurer instead. The employer (or their insurer) will take steps to establish whether or not they are going to “accept” or “dispute” a claim. You might be asked further questions about your claim or asked to attend an examination with an independent doctor. While the employer/insurer is making this decision, you should be paid and have your reasonable medical expenses met, up to a value of $5,000.00. For the duration of your claim (while you cannot work or cannot work your full duties or full hours without restrictions), it’s important to make sure your medical certificates are up to date. They must continue to be accurate in terms of your ability to work and any restrictions that you might have. If your claim is accepted The employer/insurer has 84 days to make a determination to accept or reject your claim. If your claim is accepted, it’s important that you remember to take the following steps: You continue to lodge up-to-date medical certificates as long as you have restrictions on your hours or duties; Ensure that you always work within any restrictions (which could be duties and/or hours) prescribed by your doctor; and inform your employer/insurer and your doctor if you have a flare-up or deterioration in your injury. If your claim is disputed or rejected If your employer/insurer disputes your claim, they will provide you with paperwork setting out the reasons why your claim is being disputed. Claim rejected and you're not sure what to do. Call us for help - 03 6215 8100 The Workers Rehabilitation and Compensation Tribunal will then list the dispute to be determined, usually within about two or three weeks. If your claim is, or has been disputed, you should seek legal advice prior to the dispute being heard.  Contact us for a free initial consult – 03 6215 8100 .   What compensation might I be entitled to? Depending on the type of claim, you may be entitled to compensation for: weekly wages and associated medical benefits; loss of past and future earnings; past and future hospital and medical expenses (including surgical costs); whole-person impairment as a result of the injury; ongoing or future anticipated rehabilitation and treatment expenses; out of pocket expenses for items such as pharmaceutical, travel and equipment; and paid care and help, for example, yard maintenance or nursing. Finishing a claim: don’t get cleared early Sometimes workers, employers, or insurers will be eager to finalise a workers’ compensation claim by getting a final certificate or “clearance” to return to normal duties. Getting cleared to return to work, or to return to full duties before you’re ready can have serious consequences. If you’re considering getting a final certificate, talk to your doctor about what this means for your health. If you’re unsure about what to do next, we recommend you contact our office for a free initial consult – 03 6215 8100 . In conclusion: know your rights! Injured workers have significant rights under the Tasmanian WorkCover scheme but it is important to understand those rights. Making sure you’re informed every step of the way is an important way to ensure you get the most out of your workers' compensation claim. Get help from a worker's compensation lawyer You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2020/november/workcover-tas-guide/ Mon, 02 November 2020 00:00:00 All too prevalently we receive enquiries from family members who are suspicious that a vulnerable or elderly family member has been influenced or even bullied by a close relative or family member, to change their Will. What is ‘undue influence’?  Undue influence refers to situations where a Will-maker is under pressure to write a Will in a way that actually goes against their true wishes. Manipulative behaviour such as blackmail, threats, lies and flattery may be used to unduly influence a Will-maker. Proving undue influence The issue of undue influence being used by a family member or beneficiary in relation to a person making or changing their Will is very difficult to prove. Only actual coercion will invalidate a Will. Persuasion, influence or indeed opportunity is not sufficient. In the leading case of Wingrove v Wingrove (UK), endorsed by Australian courts, Sir James Hannen explained in his direction to the jury about the different kinds of coercion, in terms that may be particularly pertinent to older people: “The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may become so weak and feeble that a very little pressure will be sufficient to bring about the desired result, and it may even be that the mere talking to him at that stage or illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness’ sake, to do anything.  This would equally be coercion though not actual violence.” Thus, even though influence may be bad, it is not undue influence unless this essential element of coercion is established. Advice and persuasion do not amount to undue influence if the Will-maker is free to accept or reject them. Some pressure is seen as acceptable and will not amount to undue influence. The general principle is that the court must distinguish between legitimate influence, persuasion and pressure on the one hand and coercion on the other; which deprives the Will-maker of free will. There is no presumption of undue influence Unsurprisingly, with this standard required in order to establish undue influence and the fact that the onus of proof lies with the person alleging undue influence (eg, another family member, a friend or even the Will-maker themselves), there are not many cases where this has been upheld by the courts. Standard and onus of proof The standard of proof required to prove an allegation of undue influence requires the court to be satisfied that the circumstances raise a more probable inference in favour of what is alleged than not, after the evidence on the question has been evaluated as a whole. It is not enough to establish that the person has the power unduly to oversee the Will. It must be shown that the power was actually exercised, and the result of that exercise was the executed Will. The fact that there are circumstances which arouse the court’s suspicion does not affect the issue of undue influence. The onus remains on the party alleging undue influence. What if undue influence can be proven? If it can be proved that the whole Will made by the Will-maker was induced by undue influence, then the Will is invalid and cannot be admitted to probate should the Will-maker die. If only part of the Will is affected, then that part only may be excluded. Leading Queensland case The question of whether undue influence was applied to a Will-maker was determined in the Queensland Supreme Court decision of Lyons J in Birt and Anor v The Public Trustee of Queensland and Anor [2013] QSC 13. In this case, the will Will-maker was survived by two daughters and a son. There were two Wills. The latest Will left the entire estate to the son with a gift over to one of the daughters. The prior Will left the estate to the three children equally. It was contended by the daughters that the Will was not valid on the grounds the Will-maker lacked testamentary capacity (suffering dementia) and experienced undue influence by the son. One of the issues to be determined in this case was whether the Will-maker was subjected to undue influence at the time she executed the latter Will. It was found that the son was verbally abusive and bullying to the Will-maker, with whom he lived. He would bring his friends around and they would smoke drugs, drink alcohol and come into the house and take her food. The son had managed to convince the Will-maker of what he believed; that his sister was taking over the house and wanted to remove him. It was found there was no evidence that he convinced the Will-maker to change her Will so that she left the entire estate to him on her death. In finding no evidence of undue influence by the son on the Will-maker, Justice Ann Lyons said that: “ There is no evidence that Bill (the son) wanted a particular result other than to remain in the house at that point in time.  There is simply no evidence that Bill was the stimulus for Mrs Brooks (the Will-maker) to actually change her will.  There is simply no evidence that he wanted that particular outcome.”     This practical case highlights the difficulty in succeeding in proving undue influence under the present state of the law. Get help from a Wills & Estate lawyer  Anyone who suspects that they have been left out of a Will due to coercion being applied to the Will-maker should seek legal advice from one of our Wills and Estates lawyers . Even during COVID-19, we continue to provide our client services to the highest standards.  Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2020/october/undue-influence/ Mon, 26 October 2020 00:00:00 Previously we have looked at the types of Financial Agreements (also called Binding Financial Agreements or  BFAs ) available to parties . This blog will explore the effects of death on a Binding Financial Agreement and circumstances in which an agreement may be set aside. Financial Agreements allow parties to determine how property and financial resources of either or both parties will be dealt with in the event of separation and can also set out spousal maintenance rights. Does a BFA continue after the death of one party? Even after a party’s death, a Binding Financial Agreement will continue to operate. Pursuant to section 90H of the Family Law Act 1975 (“the Act”), (or section 90UK for de facto couples), the agreement operates in favour of, and is binding on, the personal representatives of the deceased party; for example, the executor named in the Will may be the personal representative. If you are the surviving party and none of the assets are in your name or control but the BFA stipulates that you will receive certain assets or property upon separation, then you will want the Court to determine that the agreement is binding on the personal representatives of your late partner. In the event the Court sets aside the agreement and does not make any orders with respect to property, the assets will be distributed in accordance with the Will, which may not be as you had anticipated.   Can a BFA be challenged or set aside? Financial agreements are capable of being challenged and set aside by the Courts ( under s90K of the Act ). An order setting an agreement aside after the death of a party may be enforced on behalf of or against the estate of the deceased party. In other words, the estate of the deceased will no longer be bound by the terms in the BFA. Accordingly, the Court will then have the power to make an order for the transfer of property or other orders adjusting the rights and interests of the party.   Other common circumstances where there may be proceedings to have a BFA set aside, include (but are not limited to): if the BFA was obtained through fraud, which includes non-disclosure of a material matter such as an inheritance or a lottery win ; if the BFA was used to defeat creditors, for example providing you with all the assets while your partner declares bankruptcy; and if there was a material change in the relationship since the BFA was made, such as a birth and care arrangements of a new child. There are other circumstances in which a BFA can be set aside, therefore, it’s best to speak with a family lawyer regarding your individual circumstances if you have concerns about your agreement. If one party dies during these family law proceedings, then the application is still capable of being continued by or against the personal representatives (for example, an executor) as a party to the proceedings only if the court is of the opinion that: it would have exercised its powers to set aside the agreement under the Family Law Act 1975 if the deceased party had not died; and it is still appropriate to exercise those powers. Summary Entering into a Binding Financial Agreement should not be taken lightly as it can have unintended consequences even after you or your partner’s death. For example, as a surviving party of an invalid BFA, the property division may be determined by the Courts. Accordingly, it is unknown if you will receive more or less than what was stipulated in the agreement. On the other hand, if your partner has passed away and there is no BFA in place, the property division will be in accordance with his/her Will (or the laws of intestacy if there is no Will). Therefore, you may consider making mutual wills with your partner. Binding Financial Agreements are a complex area of Family Law and it is always advisable that you speak with a family lawyer if you have concerns about your BFA or if you are considering entering into a BFA. Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2020/october/bfa-after-death/ Tue, 20 October 2020 00:00:00 Hall Payne Lawyers recently successfully represented a keen amateur cricket player at the Northern Territory Cricket Tribunal. Our client initially received a hefty penalty which would see him out of action on the ground for several years. Using our sports law and disciplinary law expertise, we were able to significantly reduce the penalty. Background The cricketer found himself in trouble over an incident with a teammate in a local match which led to him being referred directly to the NT Cricket Tribunal. Without any legal representation and unsure of how tribunal processes worked, the player was issued a very harsh multi-year suspension. So harsh was the penalty, he had no choice but to appeal. After meeting with him, we determined there were several mitigating circumstances involved in the incident; including our client having been bullied and exposed to victimisation from the teammate over a long period of time. These mitigating circumstances became the focus of our appeal. The tribunal’s decision on appeal Using our expertise in appearing before disciplinary panels we successfully convinced the appeals panel that the penalty was too harsh. We argued the various mitigating circumstances in relation to the bullying and victimisation. Further, we contended that the tribunal did not follow competition rules which allowed them to use their discretion in deciding an appropriate penalty rather than simply following the maximum range of sanctions available. The appeals panel accepted our arguments that the penalty was too harsh considering the mitigating circumstances and reduced the original penalty down to only one/seventh of the original decision. This fairer and more proportionate penalty means our client will be able to continue his weekend cricketing passion in the near future; something he was very pleased with. Do you need legal advice? Hall Payne Lawyers are highly skilled in advising and representing people before a range of disciplinary tribunals and bodies (including workplace disciplinary meetings ) and at arbitrations. We can assist you whether it is related to your employment, professional registration or even sports and recreation. If you need advice or representation in relation to any type of disciplinary matter, including sports law tribunal matters, you should seek advice as early as possible. Contact one of our expert lawyers today. Legal advice continues during COVID-19 We continue to provide our client services during the coronavirus outbreak. We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2020/october/cricket-tribunal-appeal/ Mon, 12 October 2020 00:00:00 After separation where there are children of the relationship, it’s important to put plans in place to ensure both parents have equal shared responsibility for the children, except in cases of family violence or child abuse. This shared responsibility could include the child spending time with each parent. At times, a child may say they do not wish to spend time with one parent. The question then becomes, “Can you force them to spend time with the other parent?” or “Can you prevent them from spending time with the other parent?” Are there Parenting Orders in place? If there are Parenting Orders in place, those court orders will obligate you do everything the order says. This means you must take positive action and including taking all reasonable steps to ensure the order is put into effect. So, if your child says they do not want to spend time with your ex, you can’t simply be passive and allow the child to determine who they spend time with.  Where Parenting Orders provide for your child to spend time with your ex, you must not only ensure the child is available during the specific times but you must also positively encourage the child to spend time with the other parent. What if I am worried about the health and safety of my child while in my ex’s care? The safety of your children, no matter whose care they are in, is a priority. Most Parenting Orders will have dispute resolution clauses that will provide parties with a process of what should occur when there is a disagreement (including disagreement about safety). More often than not these orders will stipulate that the parties attend mediation with a Family Dispute Resolution Practitioner (FDRP) to attempt to resolve their dispute. Attending a mediation with an FDRP should be the first step if there is any disagreement about the orders.  If you reasonably believe that you need to stop your child spending time with your ex to protect their health and safety, you may have a reasonable excuse for contravening Parenting Orders or withholding the child from the other parent. It is important to note that the period in which the child does not spend time with the other parent should not be longer than is necessary to protect the health and safety of the child. Case review where mother contravened Parenting Orders related to spending time with the other party In the case of Pandell & Walburg (No 2) [2020] FCCA 1843 , the mother contravened a Parenting Order by not making the child available to the father from March 2020. The mother had medical advice that as a result of a pre-existing health concern, the child was at greater risk of suffering an adverse reaction to a possible COVID-19 infection. The mother, therefore, asserted that the child was at risk if he was to spend time with his father. An updated medical report was ordered by the Court prior to the Court deciding if the mother had in fact contravened the orders. The updated medical report was received by the parties on 5 June 2020. This latest report considered that the child was not high risk for severe COVID-19 related illness. On 29 June 2020, the mother indicated that she was prepared for the child to resume spending time with the father. On 13 July 2020, pursuant to section 70NAE(5) of the Family Law Act 1975 the Court found that the mother had a reasonable excuse for not allowing the child to spend time with the father up until the 5 June 2020 when the parties received the updated medical report. The Court further found that, from 5 June onwards, the mother no longer had a reasonable excuse to withhold the child from spending time with the father on medical grounds. Therefore, the Court ordered that the father receive some make-up time with the child (to cover the time from 5 to 29 June that he did not spend time with the child).  Suitable evidence is crucial if you are considering contravening Parenting Orders If you are considering not complying with Parenting Orders, you need to ensure that you have sufficient evidence so that a Court can find that you had a reasonable excuse to do so. The evidence needs to show that it was necessary to contravene the orders to protect the health and safety of your child. Of equal importance is that the contravention should not be longer than necessary. In the above case, contravention of the orders was considered reasonable but only to the date of the updated medical report (5 June). In other cases, this may be until the parties attend mediation or an expert report is received addressing concerns for the health and safety of the child. COVID-19 update in relation to Parenting Orders As noted in our previous blog, “ Parenting Orders during COVID-19. What happens if compliance becomes difficult ”, if parents are unable to strictly comply with their current Parenting Orders and alternate arrangements are made, these alternatives must be in the best interest of the children and they must follow the spirit or purpose of the Parenting Orders.  It is, however, important to note that any order remains in force until a new Parenting Order or parenting plan changes it in some way. Parties will often talk about changing the arrangements and may even agree to a change, but these talks do not change the order. More importantly, even if your needs or circumstances change, the order applies until it is formally changed by the court.  Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2020/october/equal-shared-responsibility/ Tue, 06 October 2020 00:00:00 Hall Payne is representing the daughter of a man who died as a result of anaphylactic shock after a bee sting at a bee farm site. The matter is before the Coroner in the Magistrates Court Coronial Division, with one of the main issues to be determined is whether the victim was a “worker” at the time of the incident. Exploring the issue will also be relevant for the family in relation to potential entitlements under workers compensation and fatal accident laws. Background Mr Wallace Bryers died when he went into anaphylactic shock after being stung by bees at a beehive site operated by Tasiliquid Gold Honey in January 2018. The operators of the bee farm deny that Mr Bryers was a worker of the business but rather a visitor. A coronial inquest is now being held to determine whether Mr Bryers was in fact a worker and examine the issues surrounding safety and duty of care. Overview On 5 January 2018, Mr Bryers travelled with the owner of Tasiliquid Gold Honey (‘ Tasiliquid Gold’ ) and other employees to a bee farm to collect beehives from a property containing over 50 beehives. Mr Bryers assisted in these tasks and was wearing a protective suit supplied by Tasiliquid Gold. Prior to leaving the farm, Mr Bryers adjusted his bee suit and was subsequently stung by a bee. Later when travelling in the truck after leaving the farm, Mr Bryers went into cardiac arrest. There was no first aid kit on hand on the day at the site (or in the truck) and those present did not have an epinephrine auto-injector, commonly known as an epi-pen. After approximately an hour of CPR and treatment, Mr Bryers died at the scene. The coronial inquest The main issue for determination was whether Mr Bryers was an employee or a volunteer within the meaning of the Work Health and Safety Act 2012 (Tasmania) . It is common for disputes to arise regarding the true nature of the relationship between an employer and a worker. For further information about this topic see our blog ‘ Sham Contracting: Disguised Employment Relationship ’. In this matter, Indi Gunadasa, from Hall Payne’s Hobart office acted for the daughter of the deceased, Mr Bryers in the inquest. In submissions made on behalf of the daughter, it was submitted that Mr Bryers was an employee for some of the following reasons: Mr Bryers was remunerated by Tasiliquid Gold for the work he completed, albeit in cash; Tasiliquid Gold exercised control over Mr Bryers when at the various beehive sites including what tasks he completed; Tasiliquid Gold supervised Mr Bryers work at the various beehive sites; Tasiliquid Gold provided protective equipment for Mr Bryers to wear; and Evidence from independent witnesses support that Mr Bryers was working as a beekeeper with Tasiliquid Gold. Tasiliquid Gold submitted to the coroner that Mr Bryers was not a worker, denying that there was any form of payment or work completed by Mr Bryers. It was submitted on behalf of Tasiliquid Gold that Mr Bryers was interested in the bee farming process and was only ‘coming along for the ride’ as he had a genuine interest in bee farming. The coroner has now adjourned the inquest for determination.  What will happen if Mr Bryers is determined to have been a “worker” at the time of the incident? If Mr Bryers is found to be a worker, the deceased’s family could be entitled to compensation under the Workers Rehabilitation and Compensation Act 1988 and the Fatal Accidents Act 1934 .   If a worker dies as a result of a work injury, leaving wholly or partially dependent spouses and/or children, compensation is available to those dependants including the following where applicable: a lump-sum payment; weekly payments; reasonable funeral and burial costs of the worker; and any contributions by the worker towards the maintenance of the home of his family members. Claims under the Fatal Accidents Act 1934 (Tas) are open to a wider range of individuals related and/or connected to the worker. These individuals are entitled to recover damages against the person responsible only in circumstances where the wrongful act, neglect or default which caused the death would (if death had not occurred) have entitled the deceased to sue for damages for negligence. For further information about the entitlements of deceased workers please contact Hall Payne Lawyers . We will update this article once the decision of the coronial inquest has been determined and published. Media on this case Note, this article is available to paid subscribers to The Mercury newspaper. : Honey company denies bee sting victim was its employee Get help If you have an employment law and/or personal injury matter and you’re looking for advice and assistance, Hall Payne’s expert advice, across the country, can help. You can either get in touch directly with Indi Gunadasa (Hobart office) or contact our head office for referral to a lawyer at any one of our other offices. Legal advice and assistance continue during COVID-19 We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2020/september/bee-sting-death/ Mon, 28 September 2020 00:00:00 Receiving an overpayment of wages claim from your employer can present unexpected legal issues. An overpayment of wages will usually occur as a result of an administrative or clerical error, incorrect data in a payroll system or on the basis of misinterpretation of an applicable industrial instrument, such as an award or enterprise agreement. The traditional understanding in relation to overpayment of wages is that money can be recovered from an employee if the overpayment arose from a mistake of fact, however, overpayment monies could not be recovered if it arose from a mistake of law.  The leading case on overpayments made under a contract is David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 . In that case, the High Court overturned the rule against recovery for a mistake of law and found that recovery was available for any genuine mistake. It was held at [43]: “If the payer has made the payment because of a mistake, his or her intention to transfer the money is vitiated and the recipient has been enriched. There is therefore no place for a further requirement that the causative mistake be fundamental” Overpayment by mistake In order to be entitled to recovery of the overpayment sum, the employer must first demonstrate that the overpayments were made as a genuine mistake or error. Recovery will generally not be available if the payment has been voluntarily made; that is, the employer intended to make the payment despite the employee not strictly having an entitlement. If you are approached by an employer, or former employer, about an overpayment, the first step is to request that they justify how the payment was a genuine mistake in the circumstances. Once you have that information, you will be in a position to assess whether to repay the monies, for example by agreed instalments, or seek further advice about potential defences to the claim. Change of position defence Recovery of an overpayment will not be possible where the employee can demonstrate that they have ‘changed position’ as a result of the overpayment. This basically means that they have utilised those funds in good faith, and if established, is a full defence to any recovery action. The defence however will usually only arise in relatively confined circumstances. An example of this notion is the case of TRA Global Pty Ltd v Kebakoska [2011] VSC 480 , where the employee had been denied Centrelink benefits as a result of the overpayment. In Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14 the High Court held that repayment of monies paid by mistake can be resisted on the basis that it would be inequitable. To establish that it would be inequitable to repay the money, it must be shown that the recipient has acted to his or her detriment in reliance on the overpayment. Given the complexities that arise in the application of the available defences, it is a good idea to seek advice. Deductions from pay The Fair Work Act 2009 (FW Act) contains a strict set of requirements that regulate the ability of an employer to withhold monies from an employee’s wages. A deduction will only be permitted in accordance with section 324 of the FW Act where the employer is authorised: in writing by the employee and is principally for the employee's benefit; or by the employee in accordance with an enterprise agreement; or by or under a modern award or an FWC order; or by or under a law of the Commonwealth, a State or a Territory, or an order of a court. An employer cannot deduct money  from your wages for an overpayment without your agreement. Put simply, an employer cannot deduct money from your wages for an overpayment without your agreement. If they do, it is a breach of the Act and serious penalties can apply. However, if you withhold agreement to repay the money, there is a chance your employer could seek recovery through the courts. You can read more about deducting wages in our article “ Can my employer deduct money from my wages? ” Overpayment of superannuation An employee is able to make a complaint to their superannuation fund (using the fund’s internal dispute resolution process) and to the Australian Taxation Office in respect of the issue. If the complaint is not dealt with appropriately by the relevant fund, it could be escalated to the Australian Financial Complaints Authority. Get help from an employment lawyer  If you’ve been overpaid and your employer is seeking to recoup that overpayment, there may be circumstances where you can retain the payment. Likewise, if you are having any other issues in relation to your employment, including any issues related to COVID-19, our award-winning employment law team can assist you in securing your employment rights and entitlements. We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Find this article useful? You may also like to read: Underpayment of wages – your rights and entitlements Can my employer deduct money from my wages? Overpayment of JobKeeper payments and wage deductions https://www.hallpayne.com.au/blog/rss/blog/2020/september/overpayment-of-wages/ Mon, 21 September 2020 00:00:00 PEXA is Australia’s online settlement and lodgement platform for property transactions . Verifying your identity is a fundamental step in the process of conveyancing, including e-conveyancing, to avoid any fraudulent property transactions. Hall Payne Lawyers provide secure and simple options for verifying your identity. With e-conveyancing, we are required to be highly diligent as, when we use PEXA, we are signing the transfer documents directly on your behalf; this is not possible with a standard paper settlement if you are the seller. How do we verify your identity for a PEXA settlement? There are three ways Hall Payne can verify your identity. 1.  Face-to-face appointments We can verify your identity in-house via a face to face appointment at our offices. 2.  Secure digital platform with InfoTrack You can verify your identity remotely on a secured digital platform provided by a company called InfoTrack. You do your verification by uploading scans of your passport and driver’s license and taking a picture and video of yourself. The current fee for this service is $9.90. This service would be useful for those who are more tech-savvy and have access to a webcam. Visit the InfoTrack website here, to use this service . 3.  Australia Post You can use Australia Post as an Identity Verifier service. To make use of the Australia Post service, you are required to visit your local participating post office to verify your identity. Australia Post charges for this service and as of June 2020, the cost for this service is $49, payable to Australia Post. We expect this service to be useful for clients who live remotely or do not wish to travel to the city.   If you are purchasing a property, we can accept an original certified copy of your identity documents, certified by your local Justice of Peace. If you are selling a property, we request you either attend our office for us to verify your identity, use the InfoTrack remote ID service or use the Australia Post service mentioned above. What type of ID do you need? Generally, the best forms of ID you can provide is both a passport AND an Australian driver license or proof of age card. If you have changed your name (for example, you have married) and your current ID reflects your old name, you will be required to provide suitable evidence of this such as a marriage certificate or change of name certificate. If you do not have a valid passport, you will be required to provide either an Australian driver license or proof of age card AND a full birth certificate or citizenship certificate AND a Medicare card or Centrelink Card or DVA card. As above, you will also be required to provide change of name evidence if your current ID reflects an old name. For a comprehensive list of the type of documents required please refer to the PEXA website . What happens if I am travelling overseas? If you happen to be travelling overseas, you will need to have your identity documents verified at an Australian Consular Office. This can be done by contacting the Consular Office and arranging for an appointment to have your identity witnessed. Once this is completed, we will require you to send us a scanned copy as soon as possible. The original certified documents will need to be sent back to us by courier, which we will hold on file in the event of an audit.   Hall Payne no longer provides services in property law and conveyancing If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2020/september/pexa-identity-verification/ Tue, 15 September 2020 00:00:00 PEXA (Property Exchange Australia) is an online settlement and lodgment platform used by about 10,000 lawyers, conveyancers and financial institutions to lodge and settle property settlements.  Where can I use PEXA? E-conveyancing or online settlement platforms like PEXA are available in most Australian states and territories. New South Wales has required all mainstream conveyancing to be completed online rather than the traditional paper settlements, with South Australia soon to follow. In Queensland, e-conveyancing is still optional. Therefore, if all parties are subscribed to PEXA, we will often ask our clients to let us know if they do not wish to proceed by a PEXA settlement. What type of transactions can be completed on PEXA? There are a wide variety of transactions which can be completed electronically through PEXA depending on each state and territory. Most property transactions involved with mainstream conveyancing such as the following can be completed on PEXA. Transfers; Mortgages and discharge of mortgages; Caveats and withdrawal of caveats; Encumbrances and discharge of encumbrances; Priority Notices; Transmissions; Transmission Direct to Beneficiary; Survivorships; Leases; and Financial settlements. The following link provides a complete table of which transactions can be completed on PEXA and in which jurisdiction. Benefits of PEXA PEXA was created to enable lawyers, conveyancers and financial intuitions to complete property settlements together online. There are numerous benefits for all stakeholders in using e-conveyancing or PEXA. Particularly for our clients, PEXA settlements provide the following benefits: Greater certainty With an integrated (online) workspace between all stakeholders, it is possible for each user to determine where the other party or their financial institution are at in the process. This allows us to provide you with more accurate information quicker. Most importantly, there are fewer risks of a delayed settlement due to PEXA verifying and checking all documents online prior to lodgment. Cheaper costs of settlements Most paper settlements occur at an agreed physical location, usually nominated by the seller’s financier. Therefore, if the place of settlement is different from where your conveyancer/lawyer is located, they will usually have to appoint a Town Agent to act on their behalf and accordingly, the costs will be passed on to you. With PEXA, settlement happens online at an agreed date and time, eliminating the costs involved with appointing a Town Agent. Since settlement and lodgment are completed electronically, you will also save on bank cheque fees which could be as high as $20 per cheque. Access to funds quicker As all funds are transferred electronically, it’s faster to clear funds.   No longer required to get your signature witnessed If you have previously sold your home using a paper settlement, you will remember having to sign a transfer document and having it witnessed by a qualified person which was sometimes not convenient. With a PEXA settlement, all transfer documents are completed online, and you are not required to have your signature witnessed. We will sign the transfer documents on your behalf after we have completed your identity verification (VOI). Better for the environment With most of the settlement and transfer documents being drafted and lodged online through the PEXA platform, we can reduce the amount of paper required to exchange property.  Who can use PEXA? Only authorized subscribers can use and view the content of PEXA workspaces. Hall Payne is an authorized user. How much does it cost to use PEXA? PEXA charges users a fee per transaction which is collected at settlement. Therefore, if the transaction is not successful there will be no PEXA fees. The fees are subject to change and differ from state to state and from transaction to transaction. The complete schedule of fees can be found on the PEXA website . If you have any queries about e-conveyancing, transferring property or if you would like to know more about PEXA, please do not hesitate to contact our office . Hall Payne no longer provides services in property law and conveyancing If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2020/september/what-is-pexa/ Sun, 06 September 2020 00:00:00 On 1 July 2020, the Full Court of the Federal Court dismissed two appeals , finding that the termination of employment of the affected employees did not fall within the exception of ‘ordinary and customary turnover of labour’ under s.119(1) of the Fair Work Act 2009 (Cth) (‘ FW Act ’). The two decisions appealed were: United Voice v Berkeley Challenge Pty Ltd [2018] FCA 224 (‘ Berkeley Challenge ’); and Fair Work Ombudsman v Spotless Services Australia Pty Ltd [2019] FCA 9 (‘ Spotless Services ’). What happened? Berkeley Challenge We previously reported on the Berkeley Challenge case back when the decision, at first instance, was made in favour of our client United Voice (now United Workers Union). You can view “ Historic win for contract workers employed by Spotless ” here. Spotless Services Spotless Services relevantly concerned the same legal issue as Berkeley Challenge . In Spotless Services the primary judge ultimately held that Spotless had contravened s.119 of the FW Act by failing to pay the affected employees redundancy pay upon termination of their employment. The Full Court noted that: the employees had never heard the term ‘ordinary and customary turnover of labour’ until they were terminated; and the employees were never told that their employment was linked to a specific contract or for a fixed period, or that their employment would be terminated if any particular contract was terminated by the client, lost or not renewed during the course of their employment. The Full Court’s consideration of ‘ordinary and customary turnover of labour’ The appeals in both cases were heard and determined together. The Court observed that whether there was ‘ordinary and customary turnover of labour’ depends on the facts of each case and that it was not possible or appropriate to outline an exclusive list of relevant factors. Nevertheless, a number of factors were identified as relevant by the Court. Expectations of employees The Court held that the reasonable expectations of employees are ‘ a critical, but not the only, factor in determining whether the particular termination was due to the ordinary and customary turnover of labour ’. An employee’s reasonable expectations are a question of fact, to be assessed objectively and may arise from: the nature of the work; the circumstances in which the employees came to be employed; or circumstances in which their employment continued. Such reasonable expectations could be derived from materials provided to the employee by the employer (for example, the contract of employment, or facts that are generally known about an industry. However, the Court observed that the reasonable expectations ‘ cannot be coloured by facts that the employees neither knew, nor could have known, because (for example) those facts were known (or could be known) only to the employer as a “hidden” practice of that employer ’. Whether turnover of labour is a ‘normal’ feature of the business The Court outlined a list of factors that are relevant and to be considered but which are not decisive to whether a turnover of labour is a ‘normal’ feature of the business. These include: the size of the employer; whether the employer is part of a corporate group and the practices of that group; the manner in which the employer is managed; the labour turnover frequency and practices within the employer; and the manner in which an employer conducts its business. However, it was observed that evidence is required and the Court cannot merely accept that practices (for example, termination practices) claimed by the employer to be ‘normal’ for its business are objectively normal for that kind of business. The nature of the job performed The Court noted that the nature of the job itself, or the kind of business activity being conducted by the employer may provide an indication that the work performed would come to an end even though the business would be ongoing. Particularly, ‘ if the terms of the contract between the employer and the employee explicitly state that the job is not to be ongoing, then… there may be little ambiguity in respect of the nature of the job ’. Whether the word ‘customary’ requires long-standing practice The Court held that it is reasonable to take into account whether practices of termination are ‘long-standing’ for that particular type of employment or business and may apply even if the business itself is not of long-standing. Whether the event of termination is unusual Lastly, the Court held that terminations that arise from adverse economic circumstances, which may have the effect of permanent closure, loss of lease or liquidation of a business cannot be considered to be an ‘ordinary and customary turnover of labour’. Conclusion In considering the employer circumstances, the relevant industries as well as the affected employees, the Court dismissed both appeals, finding that the termination did not fall within the exception of s.119(1) of the FW Act as no evidence could be established that the turnover of labour was ordinary and customary. Significant win for the workers The affected employees in these two cases were entitled to redundancy pay by each of the employers. The outcome of this decision is a significant win for workers across many industries, especially under the current economic climate. The interpretation by the Full Court provides greater protection for employees being made redundant and a caution for employers seeking to rely on (or take advantage of) the exception of s.119(1) of the FW Act, which has now been found to operate quite narrowly. Hall Payne is a staunch supporter of the rights of workers and their unions. We are pleased to have assisted United Workers Union (formerly United Voice) in recovering their members’ entitlements to severance pay, as well as payment in lieu of notice (the latter was secured at first instance but was not the subject of the appeals). Get help from an employment lawyer  If you have an employment law or industrial relations matter and you’re looking for advice and assistance, Hall Payne’s experienced team, across the country, can help. We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone : 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2020/august/full-court-appeal-loss/ Mon, 31 August 2020 00:00:00 When people hear references to computer hacking and computer misuse or even cyber-crime, most might think that it relates to sophisticated computer experts who are remotely able to get past a company’s security measures to obtain financial benefits or to download confidential information. What most people don’t realise is that computer hacking and misuse can relate to conduct as simple as looking at files on their work allocated computers that they are not supposed to be looking at, even if they have ready access to the files. And it’s a crime in Queensland. Unauthorised access to a work allocated computer is a criminal offence If you use a work allocated computer that has security measures installed to restrict who can access the content, such as a password, you are using what the Queensland criminal law refers to as a ‘restricted computer’. If you use a restricted computer in a manner for which your employer does not authorise, you face the risk of being charged with a criminal offence. What are the penalties for computer hacking or misuse? Section 408E of the Criminal Code 1899 (Qld) renders computer hacking or misuse to be unlawful. Depending on the nature of the unauthorised use, computer hacking charges carry a maximum penalty of anywhere from two (2) years of imprisonment (when no benefit is obtained) to 10 years of imprisonment (where detriment or damage occurs, or when a financial benefit of $5,000 or more is obtained). Experiencing problems in the workplace? Call for assistance 1800 333 444 Unsuccessful attempts to misuse a restricted computer, particularly when the primary objective is to cause damage or detriment, or to obtain a financial benefit of $5,000 or more, is also a criminal offence which carries up to 10 years of imprisonment.   How is computer hacking or misuse detected? Hall Payne Lawyers has assisted a range of clients who have been charged with computer hacking or misuse in response to the way that they have used their employer’s information technology systems. All of the clients that we have represented have been charged after their employer uncovered the nature of their unauthorised use by auditing metadata, which creates a digital footprint and allows a controller of a restricted computer to obtain a full picture of any files that you have accessed and when. We have acted for people who work in a range of professions that require them to use a restricted computer as part of their employment, including: nurses; paramedics; custodial correctional officers; police officers; bank tellers; and teacher aides. Most people have faced criminal charges because they have looked up files that relate to people they know, predominantly ex-partners or work colleagues, and viewed confidential information such as medical conditions, residential addresses, bank account balances and payslips. All of them thought that they were allowed to access the file because the files were not locked or restricted. It is important to understand that you should only access files on your work computer that you need to access as part of your job. If you stumble across a file accidentally and it doesn’t feel as though you should be read it, the safest option is to not open it all or close the file immediately. It may also be prudent to let your immediate supervisor know of the accidental access. It’s also important to note that aside from any criminal charges you could face, you may also be in breach of employment laws. This could lead to disciplinary action and potential termination of employment. To ensure that you understand your obligations when using a work computer, you should read the user terms that apply to the work computer, and any policies that your employer has about computer usage. Get help If you have been charged with computer hacking or misuse, or if you are approached by your employer or a police officer and asked questions about the way that you have used a restricted computer, you should obtain legal advice as soon as possible. Our criminal lawyers are able to provide expert advice in relation to computer hacking and misuse and are also able to represent you in court or when dealing with the police. We can also ensure you have the appropriate employment law advice if required. Computer hacking cases in Queensland you may find interesting Former QCS officer prosecuted for computer hacking Queensland police computer hacking: no action taken in nearly 90% of cases Computer game hacker pleads guilty to nine charges in Brisbane District Court Legal advice and assistance continues during COVID-19 We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 v https://www.hallpayne.com.au/blog/rss/blog/2020/august/computer-hacking/ Mon, 24 August 2020 00:00:00 Hall Payne Lawyers recently assisted a client with successfully dismissing a Domestic and Family Violence Appeal in the District Court in February 2020. We represented the Respondent in relation to a Protection Order in the case of MNT v MEE [2020] QDC 126 . Background The Appeal related to a Protection Order made against MNT (“ the Appellant ”), which included an ouster condition. An ouster condition means a party must leave the shared house. With the condition applied in this case, it effectively required the Appellant to vacate the jointly owned property and our client (“ the Respondent ”) was permitted to reside there exclusively. The matter involved a de facto relationship which had become rather acrimonious and both parties made applications for Protection Orders based on a number of domestic and family violence incidents. Shortly after the applications were made, family law proceedings were instituted by the Appellant. At the domestic violence hearing, the Magistrate found the Appellant had committed an act of domestic violence namely economic abuse, and a protection order in favour of our client was necessary and desirable. The Appeal Approximately a month since the orders were made, and at the time the Appellant was required to vacate the jointly owned property, the Appellant filed an appeal to the District Court in Brisbane. The Appellant appealed the decision on 4 grounds: The Magistrate erred in finding the Appellant had committed an act of domestic violence (that is, a single act); The Magistrate erred in law by failing to properly consider whether it was necessary or desirable to make a Protection Order; The Magistrate erred in law by making an ouster condition; and The Magistrate erred in law by failing to provide adequate reasons. We respectfully responded to the appeal as follows: The Magistrate’s language may have been inappropriate in using the singular rather than the plural. Nevertheless, the Magistrate did find more than one act of domestic violence referred to in his reasons which were delivered ex tempore; meaning the Judgement was delivered shortly after hearing the matter . That a Protection Order was necessary and desirable for our client as there were ongoing financial disputes between the parties with respect to family law, so the future risk of domestic violence continues. The ouster condition was appropriate as our client left the jointly owned property due to the acts of domestic violence from the Appellant. Nature of the Appeal The nature of the appeal was a rehearing of the matter and therefore the Appeal Judge was capable of considering all the evidence in its entirety and reaching his own conclusion on the evidence. However, the onus was still on the Appellant to show there was an error in the original decision.  The Decision from the District Court The Appeal Judge found there was a ‘ material error in the reasons provided by the Magistrate ’ and therefore he had to consider the matter based on the evidence put forward at the initial hearing. Accordingly, the Appeal Judge made the following findings: That upon reading the judgement of the Magistrate in its entirety, the Magistrate did indeed find more than one act of domestic violence had occurred. The Appeal Judge also reached the same conclusion as the Magistrate. After considering all the evidence, the Appeal Judge was satisfied there were numerous acts of domestic violence perpetrated by the Appellant towards the Respondent. The Appeal Judge also found that given the extent of animosity between the parties and the conduct of family law proceedings, a Protection Order was necessary and desirable for a term of 5 years. Despite the fact that the Appellant had already been ousted from the joint property at the appeal hearing, the Appeal Judge nevertheless found that the ouster condition did not encroach into the exclusive jurisdiction of the Federal Courts. Further, the Respondent had left the jointly owned property due to incidents of Domestic Violence. Ultimately, the Appeal Judge found that an ouster condition in the terms made by the Magistrate was appropriate. After reading the Appeal Judgement in its entirety, which can be found in the Supreme Court Library , it can be seen that at a hearing, courts place great importance and weight on the credibility of a witness and or the lack thereof. There are numerous instances where the Appeal Judge favoured our client’s evidence rather than the Appellant’s due to his lack of credibility. Conclusion The Appeal was dismissed and the initial Protection Order continued. Since we were wholly successful in the Appeal, costs were ordered against the Appellant and he was required to pay our client’s costs on a standard basis. Urgent assistance to keep you safe If you are experiencing domestic violence that puts your safety and/or the safety of your children at risk (physical, emotional or financial), you should contact DV Connect on 1800 811 811. They operate 24/7.   Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2020/august/dv-protection-order-appeal/ Mon, 17 August 2020 00:00:00 With the extension of the Federal Government’s JobKeeper Scheme until 28 March 2021 , employees should continue to be aware of their workplace rights in circumstances in which they think their employer has reduced their hours/pay unreasonably. A recent case of the Fair Work Commission (“ FWC ”) demonstrates what employees can do in such circumstances. You can learn more about the JobKeeper scheme's employee entitlements and employer responsibilities in our " JobKeeper Q&A " article. Background In Allan Jones v Live Events Australia Pty Ltd [2020] FWC 3469 (“ Jones” ), the FWC arbitrated an application by Mr Allan Jones to deal with a JobKeeper dispute between him and his employer, Live Events Australia Pty Ltd (“ Live Events” ). Live Events’ enterprise involved broadcasting horse racing in Victoria and Western Australia and Mr Jones was employed in Western Australia as a broadcast engineer. His work overwhelmingly concerned broadcasting racing events in Western Australia. Prior to COVID-19, Mr Jones: was contracted to work a minimum of 80 hours per fortnight (“ Contract Hours” ); and regularly worked 5 - 20 hours per fortnight in overtime (“ Overtime Hours” ). Employer issues a JobKeeper Direction to reduce the workers’ hours/pay Live Events’ business was impacted negatively by COVID-19. However, racing operations continued in Western Australia during the COVID-19 period and the impact on work required to be performed by Mr Jones was minimal. He continued to work his Contract Hours. Call us for help if your pay or hours have been unreasonably reduced under JobKeeper - 1800 659 114 That said, due to some minor impacts of the pandemic in Western Australia, his Overtime Hours were scaled back. His normal hours during the COVID-19 period were 80 hours per fortnight. Although Live Events required Mr Jones to work his Contract Hours, the company proceeded to issue a JobKeeper enabling stand-down direction that Mr Jones new minimum hours of work will be 48 hours per fortnight (“ JobKeeper Direction” ). A JobKeeper enabling stand-down direction is a direction to an employee to: refrain from working on a day or days on which the employee would usually work; or work for a lesser period than the period which the employee would ordinarily work on a particular day or days; or work a reduced number of hours compared to the employee’s ordinary hours of work. Live Events’ JobKeeper Direction constituted a 40% reduction in Mr Jones’ Contract Hours. At the heart of the dispute in Jones was whether Live Events’ JobKeeper Direction was consistent with Part 6-4C of the Fair Work Act which requires, among other things, that a JobKeeper enabled direction be “authorised” and “reasonable”. Was Live Events’ JobKeeper Direction authorised? A JobKeeper enabled direction is “authorised” if the employee cannot be usefully employed for the employee’s normal days or hours during the JobKeeper enabling stand-down period. The FWC determined that Mr Jones’ normal hours included his Overtime Hours. On the basis that Live Events did not require Mr Jones to work his Overtime Hours during the COVID-19 period, the FWC found that Live Events’ JobKeeper Direction was authorised. Was Live Events’ JobKeeper Direction reasonable? Although the FWC acknowledged the difficulties that COVID-19 had imposed on Live Events, it ultimately found that Live Events’ JobKeeper Direction was unreasonable on the basis that: the level of reduction was not proportionate to the actual rosters that applied to Mr Jones or other crew members during the COVID-19 period, and those reasonably forecasted in the future; Live Events’ technical crews were required for 80 hours per fortnight, rather than the 48 hours per fortnight proposed in Live Events’ JobKeeper Direction to Mr Jones; Live Events’ JobKeeper Direction was issued at a time that Live Events expected to continue to roster Mr Jones in excess of 48 hours per fortnight; and Live Events’ other employees had been guaranteed 80% of their salary at least, since June 2020 (meaning it would be unreasonable to reduce Mr Jones’ hours and salary by 40%). The FWC ordered that the Direction be amended to Mr Jones’ new minimum hours of work being no less than 64 hours per fortnight (i.e., no more than a 20% reduction). However, given that Mr Jones currently had around 80 hours of work available per fortnight, the FWC emphasized that its order was not a ‘green light” to reduce Mr Jones’ hours without Live Events having an “objective or fair basis for doing so.” A warning to employers and confirmation of entitlements for workers Even if an employer is authorised to issue a JobKeeper enabled direction, the Fair Work Act prohibits terms of that direction from being unreasonable (or unauthorised). The FWC’s decision in Jones demonstrates that workers may be entitled to apply to the FWC to amend a JobKeeper enabled direction on the basis that it is unreasonable, particularly if the direction: disproportionately reduces their hours/salary when compared to other employees; is not consistent with the labour their employer requires of them; and/or other employees have been guaranteed a higher minimum entitlement. Get help from an employment lawyer  If you find yourself in these circumstances, we can advise you of your prospects in obtaining a FWC order to amend your employer’s direction to ensure that your minimum entitlements are not reduced unreasonably. Likewise, if you are having any issues in relation to your employment, whether related to COVID-19 or not, our award-winning employment law team can assist you in securing your employment rights and entitlements. We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone : 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2020/august/jobkeeper-hours-reduction/ Mon, 10 August 2020 00:00:00 TasWater terminated two employees after they substantiated that the staff members made offensive and inappropriate sexual remarks about two female colleagues using an internal company messaging system. The TasWater workers, who were also CEPU members, alleged that the messages were interpreted incorrectly by TasWater and were taken out of context. CEPU and Hall Payne Lawyers teamed up to prove the allegations unfounded, lodging unfair dismissal claims in the Fair Work Commissio n. Overview The two staff members were considered exemplary workers by TasWater and had no history of warnings or any unsatisfactory performance. After uncovering the comments made in the internal chat system, TasWater stood the employees down. After reviewing the transcript, TasWater substantiated six identical allegations against the two staff members. They also alleged the employees colluded in their responses, showed no remorse and were being dishonest in re-characterising the conversations. Indi Gunadasa, from Hall Payne’s Hobart office , assisted the CEPU in drafting submissions and material for the unfair dismissal hearing. Some of the core submissions put to the Commission were: when understanding the proper factual matrix behind the allegations, on the balance of probabilities the Commission should be satisfied that they were not of a sexual nature; a number of messages on the internal system were in fact hours and/or even days apart in the conversation history and were not part of a continuous conversation; even if the allegations were proven, the conduct did not constitute conduct which warranted both of the workers’ termination; the employer failed to acknowledge that the workers had recognised their actions and were remorseful; and the honest responses the workers put forth in their replies to the employer should not be considered an aggravating factor forming a basis for termination. The Commission’s decision The Fair Work Commission agreed with the CEPU and Hall Payne’s submissions and only found one allegation out of six proven. In making the finding that five allegations were unsubstantiated, Commissioner Tanya Cirkovic stated that she was " unable to conclude, on the balance of probabilities ", that the operators were making sexually inappropriate comments about their colleagues during the exchange. The one allegation substantiated related to a " joke" about one of the workers needing to be castrated to control his sexual urges if he watched Game of Thrones with their female colleague, stating that the worker would have to join the ‘unsullied’, a fictional character in the TV show. The Commissioner found, based on this comment being substantiated, the employees had breached TasWater's workplace behaviour's policy, as they failed to " act professionally " or treat their colleague with " dignity, courtesy and respect ". The Commissioner, however, agreed with the submission that it was " not sufficiently serious, either on its own or collectively, to constitute a valid reason for termination ". Commissioner Cirkovic overall concluded that the dismissals were therefore disproportionate to the operators' conduct and stated: Consequently, on the material before me I am not satisfied that the conduct upon which the dismissal was based was significant to the extent that it could constitute a sound, defensible and well-founded reason for dismissal. The Applicants’ dismissals were disproportionate to the conduct that they engaged in. Result for the workers The Commissioner requested parties to return to discuss remedy with one employee seeking reinstatement and the other seeking compensation in lieu of reinstatement. Media on this case Fair Work Commission decision in Joshua Nash and Nathan Jago v Tasmanian Water & Sewerage Corporation Pty Limited here . Financial Review article “ Sacking over ‘Game of Thrones’ sexual innuendo unfair ”– 28 June 2020 Workplace Info article “ Messages were not sexual, say sacked workers ” – 6 July 2020 Get help from an employment lawyer  If you have an employment law or industrial relations matter and you’re looking for advice and assistance, Hall Payne’s expert advice, across the country, can help. You can either get in touch directly with today’s blog writer, Indi Gunadasa (Hobart office) or contact us at our head office for a referral to an employment lawyer at any one of our other offices. Legal advice and assistance continues during COVID-19 We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2020/august/taswater-ufd-wins/ Mon, 03 August 2020 00:00:00 Hall Payne Lawyers recently successfully represented a union member and former FIFO mine worker who seriously injured himself following a workplace accident. We were successful in winning his case following a 5-day trial before the Work Health Court in the Northern Territory. Background Our client was a FIFO worker at a mine operating in the NT and although he resided in another State his compensation claim was conducted under the Northern Territory Workers Compensation legislation . Our client suffered serious back injuries in the course of employment and has been unable to work since sustaining his injuries. After initially accepting his claim, his employer and its workers' compensation insurer, ceased his claim after relying on one doctor’s medical evidence that he could perform certain jobs whilst ignoring overwhelming medical evidence to the contrary. We appealed the decision on behalf of the worker, initially through mediation and a 5-day trial before the Work Health Court. The decision The Work Health Court found in our client’s favour that on the balance of probabilities his injuries were too severe for him to perform the types of roles that the insurer argued he could perform. In fact, the court ruled that he was fully incapacitated for employment since suffering his workplace injury. This was a substantial win for our client as it is usually very difficult to succeed with every aspect of a worker’s compensation claim appeal before the Work Health Court. The result This win resulted in our client receiving all entitlements to compensation that had previously been cut-off by the insurance company as well as the majority of his legal costs paid by the other side. The win and the compensation he will now receive allowed our client to finally move on with his life. Have you been injured in or outside of work? Hall Payne Lawyers has considerable expertise and experience in acting for both blue and white-collar workers in personal injury compensation matters. If you have been denied your workers’ compensation entitlements, we can help. Our specialist personal injury compensation lawyers have ensured our clients recover every last cent of what they are entitled to. Our advice will help you get back on your feet, with the compensation you deserve. If you have suffered a personal injury, we strongly encourage you to seek legal advice. We provide services for injuries related to workers compensation, road accidents, public liability, medical negligence, asbestosis and other dust diseases and abuse claims. Get help from a worker's compensation lawyer You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2020/july/fifo-worker-win/ Mon, 27 July 2020 00:00:00 On 21 July 2020, the Federal Government announced that payments under the JobKeeper Scheme, that was previously due to expire on the 27 September 2020 , will be extended until 28 March 2021. The Treasury has since released updated information surrounding the extension of the JobKeeper scheme . What are the updates? Changes to the JobKeeper payment rates The current fortnightly payment of $1,500 under the JobKeeper scheme will remain unchanged until the 27 September 2020. After this date, the payment rates will be reduced under two extension periods. From 28 September 2020 to 3 January 2021 (for workers) The JobKeeper payment rates will be reduced to: $1,200 per fortnight for all eligible employees who, in the four weeks of pay periods before 1 March 2020, were working 20 hours or more a week on average.; and $750 per fortnight for other eligible employees working less than 20 hours per fortnight. From 4 January 2021 to 28 March 2021 (for workers) The JobKeeper payments rates will be further reduced to: $1,000 per fortnight for all eligible employees who, in the four weeks of pay periods before 1 March 2020, were working 20 hours or more a week on average.; and $650 per fortnight for other eligible employees working less than 20 hours per fortnight. Additional turnover tests for employers After 27 September 2020, businesses and not-for-profits will be required to meet a further decline in turnover test for each of the two extension periods. From 28 September 2020 to 3 January 2021 (for employers) To be eligible for the JobKeeper payments, businesses and not-for-profits will be required to demonstrate that their actual GST turnover has significantly fallen in both the June quarter of 2020 and the September quarter of 2021 as compared to the corresponding quarters in 2019 and 2020 respectively. From 4 January 2021 to 28 March 2021 (for employers) To be eligible for the JobKeeper payments, businesses and not-for-profits will be required to demonstrate that their actual GST turnover has significantly fallen in the June quarter of 2020 and the September and December quarters of 2021 as compared to the corresponding quarters in 2019 and 2020 respectively. It is important to note that the decline in turnover for the two extension periods is based on the actual GST turnover and not the projected GST turnover prior to the extensions. For businesses with a turnover of less than $1b, the significant fall in revenue must represent at least a 30% decline to a comparable period in the previous year. For businesses with a turnover of more than $1b, the significant fall in revenue must represent at least a 50% decline to a comparable period in the previous year. For not-for-profits and charities, the decline must be a minimum 15%. Am I still eligible as an employee? The rules in determining whether you are an eligible employee to receive JobKeeper payments have remained unchanged. To see whether you are eligible, refer to our previous article on the JobKeeper scheme . Get help from an employment lawyer If you think your employer is not behaving appropriately in accordance with the JobKeeper scheme and the recent amendments of the Fair Work Act , you should contact your Union or the Hall Payne employment team for further urgent advice and assistance . Today’s article was researched by Hall Payne Research Clerk Kelvin Lee and authored by Principal Joseph Kennedy. Find this article useful? You may also like to read: Overpayment of JobKeeper and wage deductions Can my employer stand me down? Employment rights and obligations while working from home during COVID-19 Legal advice and assistance continues during COVID-19 We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2020/july/jobkeeper-post-sept-2020/ Fri, 24 July 2020 00:00:00 Are you about to lose your driver’s licence and need a licence for your job? There are two types of licences that may be available for eligible people who reside in Queensland and are about to lose their driver’s licence. They include a work licence or a special hardship licence. Who is eligible to apply for a restricted licence? The reason why you are about to lose your driver’s licence will dictate which kind of licence that you would need to apply for. If you are eligible for one of these licences, you are able to make an application to the Court for a restricted licence that would allow you to drive in certain circumstances even though your licence has been disqualified or suspended. You are only able to apply for a restricted licence if: you have not had your licence cancelled, suspended or disqualified within the last five (5) years (there are some exceptions to this, such as suspensions for unpaid fines, or a 24 suspension after you were charged); you have not been convicted of dangerous driving within the last five (5) years; you require your licence for an eligible reason (for example, to be able to perform your job); and you are a fit and proper person to hold a restricted licence. If you do not satisfy all of the above criteria, you are not eligible to apply for a restricted licence. If you do satisfy the above criteria, the next step is to determine which type of licence you should be applying for and when. The granting of a restricted licence is not automatic. You need to file an application with the Court which confirms that you are eligible to hold a restricted licence and the reasons why you are seeking one. The Court then has discretion as to whether or not it grants you the licence. The requirements for how and when you apply for a restricted licence are different, depending on the type of licence that you are applying for; a work licence or special hardship licence. To ensure you are applying for the correct licence type and that your application covers everything necessary to have an optimal chance of success, you should seek the assistance of a lawyer experienced in traffic law . What is a “work licence”? To be eligible to apply for a work licence, you must be about to lose your driver’s licence because you have been charged with: drink driving; failing to provide a sample of breath at the roadside; or driving with a relevant drug present in your blood or saliva. You must also be able to satisfy the Court that you require your licence to be able to perform your job. If you do not require your licence for your job, it will not matter how good your reason is for seeking a work licence; the Court will be unable to approve your application. What conditions prevent an application for a work licence? If you held a probationary licence when you were charged, you are not eligible to apply for a work licence. If you have been charged with driving while you had a blood alcohol concentration of 0.15 or more, or you were driving while you were under the influence of a drug, you will not be eligible to apply for a work licence. You will also not be eligible to apply for a work licence if you have been charged with failing to provide a sample of breath at the police station, you were driving for work purposes when you were charged, or you were required to have a blood alcohol concentration of 0.00 when you were charged. If you were driving for work purposes when you were charged, you will not be able to apply for a work licence. If you already held a restricted licence when you were charged, you will not be able to apply for another restricted licence. When will an application for a work licence be dealt with? Your application for a work licence needs to be heard at the time you attend Court to plead guilty to the charge. The Court will generally deal with the charge first and will then hear your application for a work licence straight afterwards. You should not plead guilty to the charge until you have filed your application work licence. If you have to attend Court before you have filed your application, you should tell the Court that you intend to file an application for a work licence and ask for an adjournment. How to apply for a work licence To apply for a work licence, you need to file an application which includes an affidavit from you which attaches your traffic history and your criminal history. Within your affidavit, you need to detail your personal financial circumstances and explain why you are eligible for a work licence. You should explain the circumstances that led to you losing your licence. You also need to file an affidavit from your employer (not a statutory declaration), which confirms that you require your licence to perform your job. Your application needs to be filed in the Registry of the Court that you need to attend to answer to the charge. You need to file three copies of your application and then provide a copy of it to the nearest police prosecutions office once the Court has stamped it. You should avoid filing your application on the same day that you intend to plead guilty to the charge as the Court may not be willing to hear your application at that time. You should file it at least three or four days in advance. There are strict conditions imposed when granting a work licence If the Court grants your application for a work licence, there will be strict conditions imposed. The conditions vary depending on your circumstances, but will generally include you only being allowed to drive: between certain times that the Court determines; if it is for a legitimate work purpose; if you are carrying a logbook which details the times that you have been driving and why; when you are wearing a work uniform or item of clothing with your employer’s logo; if you do not carry passengers; if you are driving a class of vehicle that the Court has authorised; and if you have not consumed alcohol or a drug prior to driving. If you breach a condition of your work licence, or you commit a traffic offence while you hold one, you will likely lose your work licence and you will not be able to apply for another one. The length of time that you hold a work licence is twice the period that you would have otherwise been disqualified from driving due to the original charge. If you are disqualified for two months, you would be required to hold a work licence for four months. What is a special hardship licence? If you are about to lose your driver’s licence because you have accumulated too many demerit points, and you have breached the “12 month good behaviour period”, you may be eligible to apply for a special hardship licence. You may also be eligible to apply if your licence is about to be suspended because you were charged with a “high-speed driving offence”. How to apply for a special hardship licence To apply for a special hardship licence, you need to file an affidavit in similar terms as those outlined above for a work licence. You also need to be able to demonstrate that you would suffer severe hardship if you lose your driver’s licence. If you are applying for a special hardship licence so that you can drive as part of your job, you will need to file an affidavit from your employer which confirms that you require your licence to perform your job. Your application needs to be filed in the Registry of the Court that is closest to your home. You need to file three copies of your application and then provide a copy of it to the nearest Transport and Main Roads office once the Court has stamped it. When should an application for a special hardship licence be filed? Before you are able to file your application for a special hardship licence you need to wait until you receive a letter from the Department of Transport and Main Roads which confirms that you will lose your licence. You then need to file your application with 21 days of the date that you have lost your licence. You are not able to file your application until the day that you have lost your licence. When you file your application, you will be told when you need to attend Court, and you will be able to continue driving in the meantime. If you do not attend court when you are required to, you will not be able to continue driving. There are strict conditions imposed when granting a special hardship licence If the Court grants your application for a special hardship licence, there will be strict conditions imposed. If you breach a condition of your special hardship licence, or you commit a traffic offence while you hold one, you will likely lose your special hardship licence and you will not be able to apply for another one. The length of time that you hold a special hardship licence is the same period of time that you would have otherwise been suspended from driving. Get help If you are about to lose your licence and want to apply for a restricted licence, you should contact our experienced criminal team for specialist advice . It is essential that you get your application right the first time or you run the risk of not being able to drive until you are eligible to get your licence back. Legal advice and assistance continues during COVID-19 We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2020/july/work-drivers-licences/ Tue, 21 July 2020 00:00:00 Understanding the difference between a common law claim and the national redress scheme Historically, the lasting consequences of child abuse, particularly Post-Traumatic Stress Disorder (PTSD), has prevented survivors throughout Australia from accessing the compensation they rightfully deserve. In this article, we look at the primary differences between compensation via the National Redress Scheme (“ NRS ”) and a common law claim due to someone else’s negligence. In handing down their report, The Royal Commission into Institutional Responses to Child Sexual Abuse noted it took survivors on average, 22 years to speak up about the abuse they had endured. This meant survivors were usually well out of time to bring a claim for compensation. Throughout Australia, recent changes in legislation paved the way for survivors of abuse to access compensation for the pain and suffering and the financial losses caused by the abuse. How does this apply to you? You, or someone you know, may be entitled to access redress through the National Redress Scheme or bring a ‘common law claim’ to seek substantial compensation. An application for the National Redress Scheme is assessed and paid in line with specific criteria, referred to as the ‘Assessment Framework’ . A common law claim, however, will compensate a survivor of abuse on a case by case basis. The differences between the National Redress Scheme and a common law claim In assessing which option is right for you, it is important to be aware of the key differences between a redress payment and common law compensation, noted as follows:   National Redress Scheme Application Payment acknowledging abuse occurred Common Law Claim A legal claim seeking compensation for an injury incurred by an individual from someone else’s negligent act. Abuse covered Sexual abuse only Sexual, physical and associated psychological abuse Who can access? Must be Australian citizens or permanent residents who have experienced child sexual abuse in connection with an institution that has registered to join the scheme , and the abuse occurred before 1 July 2018. Any individual who has experienced child abuse (not just sexual abuse) in an institution, in connection with an institution, or at the hands of an individual is entitled to submit a claim for compensation through the common law process. Who cannot access? Individuals who experienced abuse in institutions that have not joined the scheme. Individuals who are incarcerated at the date of applying. Individuals who have been sentenced to a jail term of five years or longer may not be entitled to receive redress. Common law is not possible if the individual has accepted a payment under the NRS. It is therefore extremely important to get legal advice from a lawyer experienced in child abuse , before accepting any payment from the NRS. Time restrictions Must apply for redress before 20 June 2027, and be over the age of 18 at the date of applying (or alternatively turn 18 before 30 June 2028). In Queensland, there are no time restrictions for bringing a common law claim for sexual, physical and associated psychological abuse suffered as a child. Likely amount of compensation Capped at $150,000.00 for severe abuse in extreme circumstances. (As of 1 November 2019, the average redress payment was $80,466.00). There is no cap on the total sum of compensation awarded to a survivor.    What’s the next step for survivors of childhood abuse? If you, or someone you know, has experienced abuse as a child, whether it be sexual, physical or psychological abuse, you should seek legal advice immediately about the compensation options available to you.  At Hall Payne Lawyers, we understand no amount of money can take away the pain and suffering of survivors, however, a member of our expert team of lawyers will be able to discuss the specific circumstances of your case and the compensation options available to you. Each member of our Abuse Law team understands that for a survivor, discussing the particular circumstances will be difficult, however it is important that survivors know their rights. We encourage survivors, or the family of survivors, to make  contact with one of our lawyers   as soon as possible. This article has been written by graduate solicitor Catherine Gabriel and  personal compensation lawyer Megan Stanley . Legal advice and assistance continues during COVID-19 We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. Get help from an abuse lawyer  You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2020/july/childhood-abuse-common-law/ Mon, 13 July 2020 00:00:00 Previously, Hall Payne Lawyers published an article explaining the operation of the JobKeeper scheme that was introduced in April 2020. JobKeeper provided for payment of a subsidy of $1,500 (per fortnight, per employer) to qualifying employers to pay eligible employees during the coronavirus pandemic. Eligible payments commenced from 30 March 2020. Since the introduction of the JobKeeper scheme, over 750,000 employers have applied and were approved for the scheme. A quick recap: eligible employers For an employer to qualify for the JobKeeper scheme, they must be able to show their business has experienced a decline, or be able to prove a projected decline in turnover of at least 30% when compared to a comparable period in 2019. The percentage of decline in turnover is different in circumstances where the employer is: a charity registered under the Australian Charities and Not-For-Profits Commission. The employer will need to prove that there has been at least a 15% decline in turnover; and a large business (with a turnover exceeding $1 billion). The employer will need to prove that there has been at least a 50% decline in turnover. What happens if the employer finds out that they were incorrect in determining the projected decline in turnover and was not eligible for the JobKeeper scheme in the first place? If the employer has been found to be ineligible and has incorrectly claimed for payments under the JobKeeper scheme, the employer will be required to repay the money to the Australian Taxation Office. This is regardless of whether the employer has already paid those monies onto its employees. Can the employer take back the JobKeeper payments made to the employee through future pay deductions? The Fair Work Act 2009 (Cth) provides that an employer may be permitted to deduct an amount from the employee’s pay only if: the employee authorises for the deduction in writing and is principally for the employee’s benefit; the employee authorises for the deduction in accordance with an enterprise agreement; the deduction is authorised under a modern award or an order of the Fair Work Commission; or the deduction is authorised under a law of the Commonwealth, a State or Territory; or an order of a court. If deductions are not authorised under an agreement, award or under a Fair Work Commission or court order, the employer must seek authorisation from the worker in writing. An employer cannot make deductions from your pay without that agreement. However, if you refuse to agree, that will not necessarily be the end of the story. It is also important to recognise that monies incorrectly paid to you by your employer through JobKeeper can potentially be recovered through the courts as a debt. Whether that will be the case will depend on a number of factors, for example: whether the overpayments were made as a genuine mistake; whether there has been unjust enrichment; and whether the employee has relied on the overpayment to their financial detriment. If you find yourself in those circumstances, it is important to urgently seek legal advice from a specialist employment lawyer . If you’ve had monies deducted from your pay which are not related to JobKeeper, you should read our article “ Can my employer deduct money from my wages? ” for more information about whether or not it is valid or legal. Legal advice and assistance continues during COVID-19 We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. Get help from an employment lawyer You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2020/july/incorrect-jobkeeper-payments/ Mon, 06 July 2020 00:00:00 Binding Financial Agreements (BFA) are “financial” agreements used in family law. They are often colloquially known as prenups or prenuptial agreements. BFA’s are entered into prior to, during a marriage or de facto relationship or after a marriage or de facto relationship. What is the purpose of a Binding Financial Agreement? Due to the flexibility of BFA’s, we find these agreements useful for documenting a party’s financial obligations to each other and how their assets/liabilities and financial resources will be distributed or divided in the event of a marriage breakdown or separation. BFA’s allow the parties to stipulate and determine a wide range of financial issues including: how property and assets you already own prior to the marriage or de facto relationship will be divided upon separation; whether any spousal maintenance is payable after the breakdown of a marriage; how you will deal with the liabilities you individually or jointly incur in the future; what will happen to a party’s salary or wages during the relationship; and what will happen to the debts you already have prior to the marriage. How do I make a Binding Financial Agreement? To make a valid Binding Financial Agreement, it must be in writing and refer to the correct section of the legislation. The agreement must be signed by all parties after they have each received independent legal advice. A certificate from a legal practitioner, such as a solicitor, will need to be attached to the BFA as evidence that the legal advice has been provided There are three main types of Binding Financial Agreement The three types of BFA are: Prenuptial Agreements (before the parties marry and in contemplation of a marriage); Cohabitation Agreements (when the parties are already living as a married or de facto couple); and Postnuptial Agreements (after the parties are already married, whether you intend to stay married, separate or divorce.) The type of BFA you and your partner will ultimately enter into will depend on your individual circumstances. This blog will focus on prenuptial agreements which are entered into when the parties intend to marry and in contemplation of marriage; probably the most common one. What is a prenuptial agreement? This type of BFA is often referred to as a section 90B or 90UB agreement depending on the type of relationship you are in. This type of agreement is a common way to protect your wealth in the event of separation. Being a Binding Agreement, it is a pre-requisite for the parties to the agreement to receive independent legal advice if both parties intend to be bound by such an agreement; similar to a Binding Child Support Agreement . The case of Thorne v Kennedy (2017) The case of Thorne v Kennedy (2017) , which was appealed all the way to the High Court of Australia, depicts a classic example of where a party (usually one who holds a superior financial position) attempts to protect their assets with a BFA in the event of separation. Unfortunately for Mr. Kennedy, the High Court set the BFA (prenup) aside and referred the case back to the Federal Circuit Court for determination . Some key facts in the Thorn v Kennedy matter Kennedy had assets worth approximately $18 million and Ms. Thorne had no significant financial assets, nor any children. Thorne was overseas and had moved to Australia with the intention of getting married to Mr. Kennedy. 11 days before the wedding, Mr. Kennedy brought Ms. Thorne to the solicitor’s office to sign a Binding Financial Agreement and told her the wedding would not happen if she did not sign. Thorne was then asked to seek her own independent legal advice prior to signing. She did so and was advised that the prenuptial agreement was solely in Mr. Kennedy’s favor and did not provide anything to her in the event of a separation. Four days before the wedding, Ms. Thorne signed the Agreement and the parties continued with the marriage. The High Court of Australia sets the prenup aside Ultimately, the High Court set the prenuptial agreement aside due to the following: Kennedy told Ms. Thorne, who was in Australia at the time, that the agreement was non-negotiable. There wasn’t enough time for Ms. Thorne to consider and reflect on the effects of the prenuptial or financial agreement. Kennedy threatened to end the relationship if she didn’t sign it. Thorne was in a considerably less powerful position compared to Mr. Kennedy in the sense that, Ms. Thorne didn’t have any significant financial assets of her own and she had recently relocated to Australia (a foreign country for her). As a result, the High Court determined there was both unconscionable conduct and undue influence by Mr. Kennedy towards Ms. Thorne. This is, however, a case of extremes. In most situations, parties act fairly reasonably and only wish to protect some modest assets which they may have inherited from a family relation, financial windfall obtained prior to the marriage/relationship or received as a property settlement from a previous marriage. That said, we have come across situations which mirror the facts in Thorne v Kennedy (2017). The decision broadens the circumstances in which prenuptial agreements can be set aside especially in circumstances where there is a significant disparity in income, property and resources. In summary Ultimately, prenups or Binding Financial Agreements before marriage are a useful tool for protecting assets of a financially stronger party so long as adequate provisions are made to the other party and the parties act fairly reasonably. It is important to note that Binding Financial Agreements may be void after a significant life event such as having children. We always inform our clients that the agreements should be drafted by a lawyer who specialises in this aspect of family law to minimise the potential for it to be challenged in court and possibly set aside. Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2020/june/3-types-of-prenups/ Mon, 29 June 2020 00:00:00 If a worker feels that their employer’s conduct is forcing them to resign their employment, there are options for the worker to protect their interests. Being forced to resign is often referred to as a ‘constructive dismissal’. Even if you have already resigned, there may still be options to challenge the legality and validity of the termination, most commonly through an unfair dismissal claim . What might a forced resignation look like? A worker can feel like their employer is forcing them to resign for a variety of reasons. Some may include discrimination and/or bullying in the workplace , denial or underpayment of wages and other entitlements, mistreatment by management or concerns about safety in the workplace. Another example of a forced resignation is where the employer directly requests that a worker to resign or else they will be sacked. All of the above situations will involve an incredibly stressful and uncertain time. It is important to remember however that there are options to consider if you find yourself in a situation like this and for that reason you should seek legal advice. What can I do? If you are still in employment, it is a good idea to try and resolve and/or improve the workplace issues before taking the step of resigning. Depending on the circumstances a worker could: utilise internal grievance or complaint procedures (any complaint should be made in writing); seek industrial support from their union, worker’s advocate or an employment lawyer; where relevant, consider a stop bullying order from the Fair Work Commission; or where applicable, make a complaint to a relevant regulator/authority. It is better to be proactive and know your legal rights before you have actually resigned, as you may have fewer options available once the resignation has occurred. What is a forced resignation or constructive dismissal? A forced resignation, also known as ‘constructive dismissal’ is recognised under the Fair Work Act as a form of unfair dismissal , this means that even if you have already been forced to resign your position you may still be able to apply for relief including lodging an unfair dismissal claim. Whilst an unfair dismissal claim will commonly relate to termination on the employer’s initiative, the Fair Work Act also specifies that a person is considered ‘dismissed’ if; ‘The person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.’ However, it can be a difficult argument to prove that you were forced into resignation as opposed to it happening voluntarily.  The test for ‘forced’ resignation says there needs to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. The onus is on the worker to prove they had no real choice but to resign because of the employer’s conduct, and this can be a very high bar to prove. This is why it is important to seek advice to know your rights and explore what avenues you might have before a resignation is tendered. So, Where to from here? If you have been forced to resign you may be able to lodge an unfair dismissal application with the Fair Work Commission.  Discover more about what constitutes an unfair dismissal and what remedies are available to workers, in our blog ‘ What is Unfair Dismissal and what are my options?' . But remember! Strict time limits apply For all unfair dismissal complaint applications, you must lodge your application within  21 days  of the dismissal taking effect . Further, where you may have been, or are being, forced to resign, you may also have rights through other legal avenues. If you feel you are being forced to resign due to a workplace injury or you suffer a psychological injury due to the stress of the situation, you may be eligible to lodge a workers’ compensation claim. In Summary If you feel like you are being forced to resign by your employer or have recently done so, you should seek urgent advice from a lawyer experienced in employment law to discuss your situation.  You can contact our employment law team for further advice or assistance . Legal advice and assistance continues during COVID-19 We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. Get help from an employment lawyer  You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2020/june/constructive-dismissal/ Mon, 22 June 2020 00:00:00 In a significant win, Hall Payne recently won over $650,000 in compensation for a university worker. In the case of Tran v Macquarie University , the employer terminated the worker for making a complaint about their supervisor. https://www.hallpayne.com.au/blog/rss/blog/2020/june/university-wrongful-termination/ Tue, 16 June 2020 00:00:00 If you’re an employee (other than a casual employee) who has worked with the same employer for at least 12 months, you can request flexible work arrangements including: working from home; changing your hours of work (including the number of hours and days you are working and your start and finish times); and changing the type of work you undertake. If you’re a casual employee, you are entitled to make a flexible working arrangement request if: you have been working with the same employer on a regular and systematic basis for a sequence of periods of employment of at least 12 months immediately prior to making the request; and there is a reasonable expectation of continuing employment with the employer on a regular and systematic basis. If your request for a flexible working arrangement is denied, your employer is required to provide reasons for denying your request. Your employer can only refuse a request on reasonable business grounds.   What are reasonable business grounds to deny your request? Reasonable business grounds can include the following: The requested arrangements are unreasonably costly for the business; Other employees’ working arrangements can’t be changed to accommodate the request; It’s impractical to change the other employees’ working arrangements or hire new employees to accommodate the request; or The request would result in significant loss of productively or have a significant negative impact on customer service. What are your rights to flexible work arrangements during COVID-19? During the coronavirus pandemic, many employees' work arrangements are likely to change. It is preferable that employees and employers work together to find the most beneficial and workable solutions to suit their workplace.  If you are eligible, you may request, for example, to start work later to avoid catching a train to work during peak hours. This will assist with alleviating pressure on public transport over-crowding and maintain social distancing measures. Whatever your reason for requesting flexible work arrangements, you will need to comply with the requirements of any award or enterprise agreement that applies to you. If you are not covered by an award or enterprise agreement, it is important that any arrangement (including its duration) is in writing. Can I request to work from home during COVID-19? If you have been directed to attend work, then depending on: the nature of your work; the steps taken by your employer to manage the risk to you of contracting COVID-19, including how you are to travel to and from work; and whether you fall into one of the high-risk categories; you may be able to insist on working from home. You can find out more about your entitlements in relation to this, in our article “Working from home during COVID-19”. Get help from an employment lawyer If you require advice on whether you are entitled to request a flexible working arrangement or your employer has refused your request, you should seek expert advice from a lawyer experienced in employment law . You can contact us by phone or email to arrange a telephone or videoconference consultation. Legal advice and assistance continues during COVID-19 We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2020/june/flexible-work-arrangements/ Tue, 09 June 2020 00:00:00 The recent Full Federal Court decision of WorkPac Pty Ltd v Rossato  [2020] FCAFC 84 (“ Rossato ”) has upheld the decision of the Full Federal Court in Skene ; that a worker paid and classified as a casual employee is entitled to the leave entitlements (annual leave, sick leave etc) of a permanent employee where there is a “ firm advance commitment”   of work . The Court upheld the finding in Skene that the usual “indicia of casual employment referred to in the authorities – irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability – are the usual manifestations of an absence of a firm advance commitment”. Background In terms of the background facts, Mr Rossato (“ the worker ”), was a production coal mine employee, who worked for Workpac for four years and was employed under six consecutive contracts as a Casual Field Team Member. The decision considered whether the worker was a casual employee for the purposes of the Fair Work Act 2009 (Cth) (“ the FW Act ”) or whether he was entitled to paid annual, personal/carer’s and compassionate leave entitlements under the National Employment Standards (NES) as well as paid public holidays under the FW Act.   Workpac sought the following declarations: that the worker was a casual employee for the purposes of the FW Act and therefore not entitled to paid leave; in the alternative, if the worker was not a casual employee, Workpac was entitled to repayment of the amount Workpac paid him in casual loading on the basis of mistake and/or partial failure of consideration; in the further alternative, that Workpac was able to “set off” the casual loading the worker had received against his claim for entitlements. The parties agreed that a casual employee is an employee who has no firm advance commitment from their employer to continuing and indefinite work according to an agreed pattern of work (“firm advance commitment”): see Skene . In other words, casual employment is defined by an irregular work pattern, uncertainty, discontinuity, intermittency of work and unpredictability. Workpac argued that the existence of a firm advance commitment was properly determined by the express terms of the contract of employment and not how the contract was actually performed. Workpac argued therefore that the worker was a casual employee because there was no firm advance commitment as to the duration of his employment or the days or hours he would work in his contracts of employment. The Full Federal Court decision The Court held that the existence of a “firm advance commitment” may be determined with respect to the employment contract as a whole and not just the express terms within the contract. Relevant considerations include: whether the contract provided for the employment to be regular or intermittent; whether the contract permitted the employer to elect whether to offer employment on a particular day; whether the contract permitted the employee to elect whether to work; the duration of the employment; and  description of the relationship between the parties is relevant but not conclusive. In Rossato, the Court held that Workpac and the worker had agreed to stable, regular and predictable employment for an indefinite duration and that firm advance commitment was evident in each of his six contracts. The Court concluded that the circumstances of Mr Rossato’s employment could not be distinguished in a material way from those in Skene , in that a firm advance commitment existed in both matters. What about the alleged notion of “double-dipping”? The Court rejected Workpac’s argument that it was entitled to repayment of the casual loading amount paid to the worker. The Full Bench found that there was no relevant mistake and no failure of consideration that would support restitutionary relief. The Full Court also found: that Workpac is not entitled to “set off” Mr Rossato’s 25% casual loading against any claim for unpaid leave entitlements; that the purposes of the payments for remuneration did not have a close correlation to the leave entitlements that the worker sought; that the Fair Work Regulation 200903A (“ the regulation ”), which was recently introduced to prevent employees from claiming both casual loading and NES entitlements, only applies when an employee makes a claim to be paid an amount in lieu of an NES entitlement. The first and second points largely turned on the facts of the case and the contracts in question. In Rossato, the regulation did not apply because Mr Rossato sought payment of his NES entitlements, not payment in lieu. Justice Bromberg stated that: WorkPac’s statutory obligation was to provide Mr Rossato with entitlements to paid annual leave, paid personal/carer’s leave and paid compassionate leave in accordance with the terms of the FW Act and the Enterprise Agreement… That would be so even if Mr Rossato had agreed to accept something else in lieu of or in substitution of the entitlements because WorkPac and Mr Rossato cannot contract out of those entitlements or the timing and manner of their provision. Am I entitled to paid leave as a casual employee? If you are a long-term casual employee with stable, predictable and regular employment, you may be entitled to paid leave under the NES and paid public holidays. Underpayment claims must be brought within six years of the date that the payment became due. Can my employer force me to go permanent part-time? Whilst your employer cannot absolve themselves of their pre-existing leave liability, they may put pressure on you to convert from casual employment to permanent part-time employment. Your employer cannot unilaterally change your terms and conditions of employment. Further, it is unlawful for an employer to take adverse action against an employee for refusing to convert from casual to permanent part-time. Get help from an employment lawyer  If you require advice on whether you are entitled to leave (annual leave, carers/sick leave etc) as a casual employee or if your employer is pressuring you to change your employment terms and conditions against your wishes, you should seek e xpert advice from a lawyer experienced in employment law. You can contact us by phone or email to arrange a telephone or videoconference consultation. Legal advice and assistance continues during COVID-19 We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2020/june/workpac-v-rossato/ Mon, 01 June 2020 00:00:00 Updated 30 September 2020 On 7 May 2020, Fair Work Commission President, Justice Iain Ross AO speaking in a webinar convened by the Australian Labour Law Association's Queensland chapter, revealed that unfair dismissal claims have increased by 60% in April 2020 as compared to April 2019. In this article, we identify three potential factors contributing to the increased unfair dismissal claims. Increase in unemployment In March 2020, the Australian Bureau of Statistics reported an increase in unemployment from 3,500 to 713,300 persons with an unemployment rate of 5.2%. Additionally, there has been a decrease in the number of jobs by 6.0% between the period of 14 March and 4 April 2020. Since those March 2020 figures, there has been a further increase in the unemployment rate. In August 2020, the Australian Bureau of Statistics reported 921,800 people unemployed and an unemployment rate of 6.8%, with a decrease in the number of jobs by 4.5% between the period of 14 March and 5 September 2020. You can stay up to date with the ABS “estimates of employment, unemployment, underemployment, participation and hours worked” via this link . You can stay up to date with the ABS “weekly estimates on the impact of coronavirus (COVID-19) on payroll jobs and wages” via this link . The continuing increase in unemployment indicates an increase of workers being terminated or made redundant from their current employment. Further, a decrease in jobs available will mean workers suffer increased income loss from the dismissal, which may see more workers seeking potential compensation through an unfair dismissal claim. It should be noted, however, that being terminated or made redundant is not necessarily going to lead to a successful unfair dismissal claim. For more information about this, you should read “ What is unfair dismissal and what are my options? ” and seek further advice from an employment lawyer. Uncertainty caused by the coronavirus pandemic There must be a valid reason for termination of employment and the reason for termination must not be harsh, unjust or unreasonable. As a result of the current pandemic caused by COVID-19, it can be said that there is an increase in uncertainty as to whether termination of an employee because of COVID-19 constitutes a valid reason. For further information regarding valid reasons for termination, refer to our previous article, ‘ What is unfair dismissal and what are my options ? ’. Non-compliance to employment laws by employers Employers may take advantage of COVID-19 as an opportunity to terminate its employees without following the proper termination procedures. If an employee has been terminated, it is important to consider whether the employer has taken actions including: whether the employee was notified of the reason and been provided an opportunity to respond; whether the employee received prior warnings of the conduct if the reason was in relation to unsatisfactory conduct; and whether the employee was provided the opportunity to request a support person be present during discussions relating to their dismissal. If there was a belief and/or assumption that the procedures have not been strictly followed, it is reasonable that the employee will be eligible to make an unfair dismissal claim, challenging the potential lack of procedural fairness. Get help from an employment lawyer  If you feel you’ve been unfairly dismissed or you have any other employment related concerns (whether related to COVID-19 or not), you should seek advice from a lawyer experienced in employment law . You can  contact our employment law team for further advice or assistance. Legal advice and assistance continues during COVID-19 Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2020/may/ufd-claims-surge/ Thu, 28 May 2020 00:00:00 On 15 May 2020, Hall Payne Lawyers represented the Australian Maritime Officers’ Union ( AMOU ) and secured a win for their member regarding a dispute concerning interpretation of the Smit Lamnalco Towage (Australia) Pty Ltd and AMOU Gladstone Enterprise Agreement 2016 ( the Agreement ). Background The worker commenced employment with Smit Lamnalco Towage in August 2015. Under the employer’s “Rosters of Work and Operational Standards”, the worker was required to hold and maintain a Global Maritime Distress and Safety System ( GMDSS ) qualification. The worker undertook the relevant training and requested reimbursement from the employer. The employer rejected the request. The AMOU contended that its member is entitled to reimbursement of $2,946.18 in expenses they incurred to obtain revalidation of their GMDSS competency. The Union filed an application at the Fair Work Commission to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (Cth). The clause in dispute The dispute concerned two clauses under the agreement. First, clause 22.2 of the Agreement provides an obligation to maintain the: “Employee’s Certificate of Competency to its present level regardless of the level of qualification required to perform his/her duties.” Secondly, Appendix 2 of the Agreement makes references to training conditions: “Revalidations will be provided by the company to the current qualification level held by the employee and any outstanding claims will be back paid on signing of this agreement.” Hall Payne argued that the clause in Appendix 2 of the Agreement imposes an additional obligation to provide ‘ current qualification level ’ and that this was a broader term than “Certificate of Competency”. The decision The Commissioner found that, on interpretation of Appendix 2 of the Agreement, there is an obligation for the employer to maintain the current levels of qualifications, not merely the Certificate of Competency. Further, the Commission accepted our argument that in light of Appendix 2 being called ‘Additional Conditions’, it provides for obligations that are additional to those outlined in clause 22.2 which is limited to Certificates of Competency. You can read the full decision of the Fair Work Commission here. Conclusion The worker is entitled to be reimbursed the expenses incurred as a result of the revalidation. This decision is a significant win for the Union and its members and provides clarity for members to access benefits of any additional obligations of the employer that may exist under the Agreement. Got concerns about interpretation or implementation of your enterprise agreement? Hall Payne Lawyers has unrivalled experience in acting for unions in proceedings for breach of industrial instruments . Contact one of our employment lawyers to discuss your matter and to see what options might be available. Legal advice and assistance continues during COVID-19 We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. Contacting Hall Payne Lawyers  You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2020/may/amou-win/ Mon, 25 May 2020 00:00:00 If you believe you are being harassed, and the offending conduct is causing you to fear for your safety, you may be able to make an application for a peace and good behaviour order ( PGBO ) against the person harassing you. How do I apply for a peace and good behaviour order? Applications for a PGBO can be made under the Peace and Good Behaviour Act 1982 (Qld) in your local Magistrates Court. For your application to succeed you would need to be able to prove to the Court that you are in fear of the person that you are complaining about and that that person has threatened to: assault or cause bodily injury to you or to any person under your care or charge; or procure any other person to assault or cause bodily injury to you or to any person under your care or charge; or destroy or damage your property; or procure any other person to destroy or damage your property. Alternatively, you may make an application if you can prove that you have been subjected to intentional conduct by a person which has caused you to fear that they will damage your property. Unlike a complaint about unlawful stalking, which is a criminal matter that is prosecuted by the police, the making of a PGBO application is a civil process that must be initiated by you. The person that is the subject of the application will have an opportunity to respond and you do not need the assistance of a police officer to make an application. There are a number of steps involved in the process of obtaining a PGBO, including the: making of an initial complaint; issuing of summons; filing and service of affidavit evidence; and conduct of a hearing before the Magistrates Court. What is the penalty for breaching a peace and good behaviour order? A PGBO will require the person the subject of the order to be of good behaviour to the complainant (you). It can include other orders as the Court sees fit, for example, an order that there be no contact between the parties. Once an order is in place, the breaching of that order is a criminal offence which is punishable by imprisonment for up to one year. Hall Payne Lawyers’ dedicated criminal lawyers are able to assist you with making an application for a peace and good behaviour order. If you believe you need assistance with making an application, or if you have any questions about your personal circumstances, you should contact our team to arrange an initial consultation straight away. Legal advice and assistance continues during COVID-19 We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2020/may/pgbo-qld/ Mon, 18 May 2020 00:00:00 Updated 6 August 2020 Hall Payne recently represented the Electrical Trades Union (“ETU”) in a dispute related to the interpretation of a clause in the Kentz Pty Ltd Ichthys Onshore Construction Greenfields Agreement (“the Agreement”). The clause related to the payment of licence allowances, in addition to the base hourly rate. The Federal Court found in favour of the ETU and its affected members. Background The case related to a dispute about whether the reference of ‘electrical licence’ in the ‘Summary of Allowance’ clause of the Agreement includes any kind of electrical licence or whether it refers only to an unrestricted electrical licence. Hall Payne and ETU contended that the electrical licence allowance under the Agreement, described as ‘qualifications allowances’ reflected the work performed, rather than the individual’s qualification. Further, the ETU argued that, unlike the Electrical, Electronic and Communications Contracting Award 2010, the Agreement does not differentiate between a ‘restricted’ or ‘unrestricted licence’.   The court agreed. The decision In May 2020, the Federal Court found that Kentz Pty Ltd (Kentz) had incorrectly applied its Agreement, contravening section 50 of the Fair Work Act 2009 (Cth). The judgment means that the three ETU members affected by the proceedings, who all held a restricted electrical worker’s licence, are entitled to compensation of $28,825.02 . The Court criticized the contentions made by Kentz, noting that inserting the word ‘unrestricted’ before the word licence creates confusion rather than clarity as both the Electrical Workers and Contractors Act 1978 (NT) and the Electrical Workers and Contractors Regulations 1984 (NT) do not have an ‘unrestricted electrical licence’ category. Further, the term does not appear anywhere in the allowance clause and as such: “ one would have expected to see that defined expression used in those words ”, if the term was intended to confine to an unrestricted licence. This decision is a significant win for ETU and its members and serves as a warning against employers seeking to read words into an enterprise agreement. You can read the judgment of the Federal Court here. Penalty imposed upon Kentz The amount of pecuniary penalty to be imposed upon Kentz for its breaches was decided on 28 July 2020. In determining the appropriate penalty to be imposed, the Federal Court took into consideration, the joint submissions submitted by the parties, in that: general deterrence is an important factor; while the conduct of Kentz was deliberate, it did not intend to act unlawfully; and only three employees were affected. Although the Court found that Kentz had no prior contraventions and had co-operated and acted promptly throughout the proceedings, the Court agreed with our submissions that the penalty must be set sufficiently high to deter both Kentz and other employers from engaging in similar behaviour. The parties jointly proposed to the Court that the pecuniary penalty to be imposed on Kentz should be set at $15,000 , to be paid to the ETU. The Court agreed. Got concerns about interpretation or implementation of your enterprise agreement? Hall Payne Lawyers has unrivalled experience in acting for unions in proceedings for breach of industrial instruments. Contact one of our employment lawyers to discuss your matter and to see what options might be available. Legal advice and assistance continues during COVID-19 We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2020/may/etu-v-kentz-win/ Tue, 12 May 2020 00:00:00 Hall Payne Lawyers has secured a great win for members of the Australian Maritime Officers’ Union and the Australian Institute of Marine and Power Engineers in a recent appeal to a Full Bench of the Fair Work Commission. This relates to an appeal of a decision to reject approval of the ASP Ship Management/RTM Officers Enterprise Agreement 2017 (“the Agreement”). Background The unions and the employer reached agreement over the terms of the instrument and applied to the Fair Work Commission to have it approved. At first instance, the Commission decided that one of the terms of the agreement was discriminatory. It declined to approve the agreement unless the employer provided an undertaking that the discriminatory term be of no effect. The employer gave the undertaking and the agreement was approved. What was the clause in dispute? Maritime officers are required to obtain certificates of competency so that the maritime authorities will grant them permission to work. The allegedly discriminatory term related to compensation for loss of certificates of competency. Hundreds of enterprise agreements in the maritime industry contain clauses which set out a scheme for compensation to be paid according to graded scale: younger officers receive the most compensation (as they have longer to run in their career) and this gradually decreases as they approach retirement age. The arguments on appeal Following the Commissioner’s initial decision, our clients sought advice about an appeal. The principal argument that we advanced on appeal was that the clause was not “age-related” discrimination; therefore, there was no basis to seek the undertaking. Our clients also challenged the undertaking made by the Commissioner on a number of bases. A Full Bench of the Fair Work Commission accepted all of our arguments, saying the clause: “does not treat older employees differently because of their age; it treats them differently because of a relevant difference in the period of the seagoing career which has been lost” The Bench found that the various criticisms of the scheme made by the Commissioner weren’t demonstrative of age discrimination but rather simply describe the scheme which the Commissioner would have preferred. This was enough to dispose of the appeal. The Full Bench also accepted the unions’ other arguments, finding that the Commissioner had no power to make the undertaking because it went beyond simply remedying the alleged discrimination (which in any event did not exist) and because it imposed a financial detriment on the relevant employees, who would have lost access to this valuable entitlement. You can view the full decision here. Conclusion The Agreement is now in operation and the loss of certificate compensation clause is in full effect. Hall Payne Lawyers are experts at helping unions and their members enforce their rights and access the full extent of their entitlements . If you’ve been denied your workplace rights and entitlements, you should seek advice from your Union or a lawyer experienced in industrial law . Legal advice and assistance continues during COVID-19 We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2020/may/maritime-workers-win/ Mon, 04 May 2020 00:00:00 The current coronavirus pandemic, resulting in a significant loss of jobs and change to working conditions for many, has raised a number of questions related to employment law. In this article, we ask the question ‘Can my employer stand me down?’ Depending on your job, the answer could be very different. A note before we begin – the content of this article does not apply to casual employees or to independent contractors. Further, different considerations will apply to employees who are receiving JobKeeper payments through their employer. https://www.hallpayne.com.au/blog/rss/blog/2020/april/stand-down-during-covid/ Mon, 27 April 2020 00:00:00 As a result of coronavirus (COVID-19), the Federal Government introduced the JobKeeper scheme aimed to assist employers who have been impacted by the pandemic to retain employees. Although the scheme has been widely heralded, there have also been a number of concerns raised; particularly in relation to potential unscrupulous behaviour by some employers. The JobKeeper scheme provides eligible employers an amount of up to $1,500 per fortnight to enable them to pay each of their eligible employees during the pandemic. The primary condition is that employers must pay at least $1,500 every fortnight to all employees. It should be noted that this is a pre-tax figure. What is an eligible employer? For a majority of Australian businesses to qualify for the scheme, the employer must have experienced a decline or be able to prove a projected decline in turnover of at least 30% when compared to a comparable period in 2019. However, the required percentage will be different if the employer is: a charity registered under the Australian Charities and Not-for-profits Commission, where the employer will need to have experienced at least a 15% decline in turnover; and a large business (with a likely turnover to exceed $1 billion), where the employer will need to have experienced at least a 50% decline in turnover. Who is an eligible employee? To be an eligible employee, you must be:  employed with the applicant employer (including employees who have been stood down and subsequently re-hired); as at 1 March 2020, a full-time or part-time employee or been a long-term casual employee employed on a regular and systematic basis for at least 12 months; over the age of 16; as at 1 March 2020, an Australian resident or an Australian tax resident holding a Special Category (Subclass 444) Visa; and have given your employer the requisite nomination notice. Amendments to the Fair Work Act 2009 (Cth) in place during COVID-19 With the introduction of the JobKeeper scheme, amendments have been made to the Fair Work Act 2009 (Cth) (‘ FW Act ’) to assist qualified employers to participate in the JobKeeper scheme. These amendments commenced from 9 April 2020 and will be in place until 27 September 2020. The amendments include a new Part 6-4C and will overrule any other contradictory provisions of the FW Act, a fair work instrument or a contract of employment. Part 6-4C of the Fair Work Act provides the employer with the ability to: stand down employees in circumstances where the employee cannot be usefully employed for the employee’s normal days or hours because of changes to business attributable to the COVID-19 pandemic or government initiatives to slow the transmission of COVID‑19; direct employees to perform different duties , provided that the duties are within their skill and competency and is licenced/qualified to perform them within the scope of the employer’s business; direct employees to perform duties at a different location , provided that the place is suitable for the employee’s duties and that the place is safe (having regard to the nature and spread of COVID-19) and is reasonably within the scope of the employer’s business operations; direct employees to work different days or times , provided that the performance of the employee’s duties on those days or at those times is safe (having regard to the nature and spread of COVID-19), is reasonably within the scope of the employer’s business operations and the agreement does not have the effect of reducing the employee’s number of hours of work; and request employees to take annual leave , provided the request will not result in the employee having a balance of paid annual leave of less than two weeks. It can also be agreed that twice as much paid annual leave be taken, at half the employee’s rate of pay. Various considerations will arise where directions of the above kind are given, including whether the direction meets the requirements of the legislation and is “reasonable in all the circumstances”. If you are subject of such a direction and have any doubt as to its legality, you should seek advice. Employer obligations to adhere to the "minimum payment guarantee"? If your employer is entitled to receive a JobKeeper payment in relation to you, and you have performed work in that fortnight, then other considerations will arise. For example, your employer must ensure that, for the relevant fortnight, you are paid the greater of the $1500 amount or the amounts usually payable to you in relation to the performance of work during the fortnight.  This is referred to as the ‘minimum payment guarantee’. Reports of unscrupulous employer behaviour and rumours of payment skimming Even before the payments have commenced, there has been reporting of some businesses finding ways to not pass on the full $1,500 payment to employees . Employers must pay the full $1,500 to each employee they have claimed the payment for. The Federal Government has asked that any such behaviour be reported to Police and to the ATO. A Treasury Department fact sheet advises: "An entity that does not comply with its obligations in relation to the JobKeeper Payment is also potentially liable for a wider range of significant administrative and criminal sanctions under the tax law and general criminal law." Other potential issues that could arise with the scheme While the JobKeeper may assist employers in retaining employees, there is no doubt that potential issues may arise that may breach the JobKeeper scheme. They include: whether the individual was an employee or an individual contractor; identification of employees who are casuals and long-term casuals; standing-down employees where there is in fact useful work for them to perform; potential for underpayments; and potential breach of employment contracts if the directions were not authorised. Get help from an employment lawyer If you think your employer is not behaving appropriately in accordance to the JobKeeper scheme and the recent amendments of the FW Act, you should contact your Union or our employment team for further urgent advice and assistance. Today’s article was researched by Hall Payne Research Clerk Kelvin Lee and authored by Principal Joseph Kennedy . Legal advice and assistance continues during COVID-19 We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2020/april/jobkeeper-scheme/ Wed, 22 April 2020 00:00:00 Hall Payne Lawyers has noticed a spike in employees being terminated ‘summarily’ or without notice, for alleged serious misconduct since the COVID-19 pandemic started. This may be connected to unscrupulous employers panicking about their financial security and in an attempt to save money (that is, the notice period under the Fair Work Act or the employee's contract which they would have to pay), they’re using serious misconduct to avoid such payments. So, what is serious misconduct; what can you be instantly terminated for and can you challenge being sacked summarily? Serious misconduct Serious misconduct is defined in the Fair Work Regulations as being: wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment; conduct that causes serious risk to WH&S, or the reputation, viability or profitability of the employer; theft, fraud, assault; being drunk or high at work; refusing to carry out a lawful and reasonable instruction from your boss that is consistent with the employee's contract of employment At common law, serious misconduct is often a question of fact. Guidance of what can constitute serious misconduct can be found in the High Court case of Blyth Chemicals Ltd v Bushnell  (1933) 49 CLR 66 at 80-81: “Conduct which in respect of important matters is incompatible with the fulfilment of an employee’s duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal...But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises.” Can I bring an unfair dismissal claim? Yes. If you are eligible to make an application for unfair dismissal pursuant to the Fair Work Act 2009 (Cth), it is up to your employer to prove that you engaged in the alleged serious misconduct. Eligibility for unfair dismissal You are eligible to apply for unfair dismissal if: you are a national system employee ; you have been employed for at least six months, or twelve months in the case of a small business employer (i.e. an employer with fewer than 15 employees); and you are covered by an award or enterprise agreement or earn less than the high-income threshold . Get advice from a lawyer experienced in industrial and employment law on whether you’re eligible . State and local governments are not generally national system employers (except for Victoria) and you would need to bring an unfair dismissal claim in your state’s Industrial Relations Commission or Tribunal. For example, in Queensland, a registered nurse employed by Queensland Health could make an ‘application for reinstatement’ under the Industrial Relations Act 2016 (Qld), rather than an unfair dismissal claim. Summary dismissal and procedural fairness Regardless of the seriousness of the allegation/s made against you, you generally have the right to be afforded natural justice and procedural fairness during the course of any disciplinary process. What this means is that you ought to be given: clear details of what it is alleged you have done; and an opportunity to respond to any allegation made against you. If you make an application for unfair dismissal and that matter proceeds to arbitration, the Fair Work Commission will consider whether you have been provided an opportunity to respond to any allegation/s relating to your capacity or conduct. There is no hard and fast rule as to the amount of time that an employee should be given to consider and respond to allegations; however, the Commission has held that an employer’s processes ought to be applied in a common sense way that ensures that the employee has been treated fairly. What is a ‘reasonable opportunity’ to respond to allegations? Your employer must provide you with a ‘reasonable opportunity’ to respond to the allegation. What is a reasonable opportunity will depend on, among other things: the seriousness of the alleged conduct; the factual complexity of the allegation/s; the possibility of alternative explanations; and whether you have had an opportunity to arrange a support person . Although it is not necessary for an employer to do so, it is common practice for employers to provide employees with a standard period of time (e.g. one week) to provide a written response to allegations. Though the Commission has in some cases found that allowing the employee to respond at the meeting in which they were provided with the allegations, was fair. If you are summarily dismissed for serious misconduct and not afforded a reasonable opportunity to respond, you may have grounds to make an unfair dismissal application. In such circumstances, even if the Commission holds that there was a valid reason for the dismissal, the Commission may order that you be paid as compensation for failure to give you procedural unfairness. Small Business Fair Dismissal Code Small business employers (those with less than 15 employees) are able to rely on the Small Business Fair Dismissal Code (“ the Code ”) . This provides them with a defence to an unfair dismissal claim that larger employers don’t have. The Code provides that it is fair for a small business employer to dismiss an employee without notice or warning when the employer believes, on reasonable grounds, that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct is generally regarded as including: theft; fraud; violence; and serious breaches of occupational health and safety procedures. In such circumstances, if you were to make an unfair dismissal application, a small business employer would be able to lodge a jurisdictional objection against it. However, ultimately the Commission still looks at most of the same issues in these cases. Have you been dismissed and you think it is unfair? It’s important to act fast. Strict time limits apply to unfair dismissal claims . You must bring your claim within 21 days of the date you are terminated, and the Commission is loathed to grant an extension of time. You should  seek urgent advice from a lawyer experienced in employment law . You can  contact our employment law team for further advice or assistance. Legal advice and assistance continues during COVID-19 We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2020/april/summary-dismissal/ Tue, 21 April 2020 00:00:00 A new pilot program for family law matters, known as Priority Property Pool under $500,000 (PPP500 cases), commenced on 1 March 2020. As we are all aware from mainstream media, the delays in family law cases are lengthy. This program was implemented with a view to expediting certain property cases. From 1 March 2020, if your case fits the requirements of a PPP500 case, you will be eligible to participate in this streamlined process. What is the purpose of the Priority Property Pool under $500,000 program? The purpose of this program is to achieve a just, efficient and timely resolution of eligible property settlement cases at a cost to the parties that is reasonable and proportionate in the circumstances of the case. This will be achieved by the courts and solicitors identifying and narrowing the issues in dispute for the parties. The parties will then most certainly have to participate in an Alternative Dispute Resolution (ADR) process if it is safe to do so. ADR can include legal aid conferencing, family relationship centres, private mediation, conciliation conference or even arbitration. What are the requirements for my case to be considered a PPP500 case? The requirement for your case to be considered a Priority Property Pool under $500,000 case is as follows: Your application for alteration of property interests must be filed in the Brisbane, Parramatta, Adelaide or Melbourne registries of the Federal Circuit Court of Australia after 1 March 2020 and you should meet the following conditions: The net property pool of the parties including superannuation is or likely to be $500,0000 or less; and there are no entities such as family trusts, companies, self-managed super funds that might require expert investigation or valuation; and neither party in the proceedings is seeking orders for parenting, child support or enforcement orders . To be clear, cases which involve parenting, parenting and financial, child support, child maintenance, contravention applications and enforcement applications are not PPP500 cases. Important information if seeking parenting orders If you are planning to seek parenting orders but would also like to enter the PPP500 scheme, you need to file your parenting application separately to the court after your property application is finalised. Alternatively, if you are not wanting your matter to be a PPP500 case, you might consider filing both parenting and financial applications at the same time. What are the benefits of the PPP500 program? There are numerous benefits to this pilot program. Whilst there is an emphasis on intensive case monitoring for compliance of documents and valuations, there are also many other benefits. Reduced delays in getting financial cases through to ADR. Expanded opportunities for parties to discuss and take ownership of their dispute resolution planning at an early stage. Opportunities for settlement at an early stage and in a timely manner. Improved dispute resolution outcomes through close involvement in the preparation and case management of the case before ADR takes place. Where possible, unnecessary court appearances are eliminated and the number of court attendances reduced. Referral to appropriate services is made proactively. It is, however, still too early to determine what these benefits will have on the parties considering the limited registries in which this pilot program is rolling out to. The procedure for PPP500 cases There are several changes to the procedure for PPP500 compared to the standard financial cases. To commence proceedings under the PPP500 program, Applicants are just required to file an Initiating Application and a PPP500 Financial Summary. Rather than an Affidavit and Financial Statement in standard financial cases. The Court may direct you to file an Affidavit and Financial Statement at a later date. Before the first court date, preliminary orders will be made by the Registrar. These orders will include the requirement for service to be affected on the other party and responses filed in a timely manner. After reviewing the application, the Registrar will make orders for valuations, disclosure and other directions necessary and appropriate for the case. This is vastly different from normal property cases where directions for disclosure and valuations only occur after the first court date. The first court date will be before a Registrar who will assist the parties in finalising the balance sheet and moving the case forward to ADR if it has not yet settled. At this time the court will expect the directions/orders for valuations and/or disclosure has been complied with and if not, costs may follow as a result. On the second court date, if the matter has still not resolved, the Registrar will review the balance sheet and discuss with the parties and/or their legal representatives, the merits of their respective cases. The Registrar will prepare a set of agreed facts so that an order can be made for the case to be transferred to a Judge for management. If the matter is not settled, it will proceed to a Judge-led phase where the Judge will hear the matter on the papers or a less adversarial trial by consent. Hearing a matter on papers is a process where your matter will be decided based on the evidence contained in the documents ‘ papers’ submitted to the court. The less adversarial trial process is a less formal and more inclusive hearing. In summary It is clear from the process above, that the PPP500 scheme’s cases are managed to a significant degree by the courts.  It is hoped that this will enable the parties to reach a quick and cost-effective resolution to their financial obligations with each other. Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2020/april/ppp500-scheme/ Mon, 13 April 2020 00:00:00 The Northern Territory Parliament is proposing to introduce laws which will mean dedicated emergency services workers, such as paramedics, firefighters and police, will have any compensation claims, lodged with the necessary supporting medical evidence, for Post-Traumatic Stress Disorder (“ PTSD ”) relating to their work, automatically accepted. These laws form part of proposed Return to Work Legislation Amendment Bill 2020 (“the Bill”) and, if introduced, will greatly improve the Northern Territory Workers Compensation claims experience and outcomes for emergency service workers. The fight for these amendments to the Return to Work Act (“RTWA”) has been taken up by the Northern Territory Branch of the United Workers Union and its members, with Hall Payne Lawyers providing legal advice and assistance every step of the way. Current situation with PTSD claims In the Northern Territory, PTSD is not specifically referred to under the RTWA. Emergency workers who make compensation claims for PTSD, including the many that Hall Payne Lawyers represent, almost always have their claims rejected by employers and their insurance companies. As a result, workers are often dragged through long and stressful legal proceedings. Having a claim rejected, despite obtaining medical evidence which supports it, is usually very detrimental to a person’s wellbeing as they are made to relive traumatic events, feel like their injury is treated as insignificant or that they are ‘putting it on’. All the while the worker is suffering financially as they are not receiving any income or compensation. Proposed reforms and their impact With these proposed new laws, PTSD will be deemed a mental health disease under the RTWA for any emergency worker/first responder who has attended an emergency situation or incident. This will include volunteers. Insurance companies will have little choice but to accept the claim and pay the worker their entitlements and would need compelling medical evidence before they could even consider reducing or ceasing a worker’s claim to compensation. These laws are an important step forward as they recognise the very real risks to mental health that come with these challenging occupations and in particular, prevalence of PTSD for these workers. It also provides workers with a degree of confidence that should they suffer from PTSD due to responding to an emergency incident at work, they will be supported rather than doubted and dragged through stressful legal proceedings. Asbestos-related diseases for firefighters also to be covered Certain work-related asbestos diseases and cancers for firefighters will also be deemed diseases and accepted as compensation claims. Conclusion Hall Payne Lawyers has strongly supported the implementation of presumptive PTSD laws and other reforms to the Worker’s Compensation Scheme that will improve outcomes for all Territory workers. We will continue to provide submissions to Parliament supporting the passing of these amendments and advocating for the laws relating to workers’ rights to be as strong as possible. With a Parliamentary Committee to table its report in early May 2020, it is expected the laws will be passed by mid-year. Hall Payne Lawyers represents workers across Australia. We are committed to assisting workers, including emergency services workers when it comes to protecting their rights and entitlements. If your workers' compensation claim has been rejected or your payments have ceased or been reduced, or you have any other concerns about your claim, you should seek expert advice from a lawyer experienced in workers compensation claims . Legal advice and assistance continues during COVID-19 We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. Get help from a worker's compensation lawyer  You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2020/april/ptsd-claims-nt/ Mon, 06 April 2020 00:00:00 Hall Payne recently obtained reinstatement for a Sydney bus driver and RTBU member who was sacked by the State Transit Authority (“STA”) for mobile phone use. HPL Principal Joseph Kennedy argued the case for the driver in disciplinary appeal ( similar to unfair dismissal ) which was heard in the NSW Industrial Relations Commission (“NSWIRC). Background The driver had been employed by STA for 12 years. He was sacked by STA because he used his mobile phone to make two phone calls to try and cancel a medical appointment while pulled in at bus stops. He made the calls after applying the handbrake, opening the doors and standing with one foot out of the driver's cabin, while passengers boarded and alighted the bus. STA terminated the driver, arguing that his conduct was in breach of applicable traffic laws and put the passengers in danger. The RTBU engaged Hall Payne to act for the driver in his fight for reinstatement in the NSW IRC. The Commission’s reasoning It was not in dispute that the driver had breached laws and workplace policies regarding mobile phone use. It was also not in dispute that the driver’s conduct may not have been potentially harmful to STA’s public image. Hall Payne argued during the hearing, however, that opening the doors activates a secondary braking mechanism. Our cross-examination of STA’s witnesses revealed that there would need to be "multiple" system failures for the bus to move with both brakes engaged and that this would be highly unlikely. The Commission found that the driver’s conduct had not jeopardised the safety of the passengers and that the driver had secured the bus in the manner required when passengers board and alight the bus. The issue was then whether the punishment meted out by STA was appropriate considering the nature and gravity of the misconduct. Hall Payne also relied on the driver’s excellent disciplinary record, which was conceded by STA managers under cross-examination. The Commission’s findings The Commission held that, while STA is entitled to expect compliance with its workplace policies, this did not allow it to terminate a driver’s employment for any and all transgressions. The Commission considered: the length of the driver's service at STA; the commendations he had received for his excellent driving; and his driving record. The Commission also considered that the driver had expressed remorse and was unlikely to commit the same misconduct again. The Commission came to the conclusion that termination of the driver’s employment was too harsh in the circumstances. Accordingly, it was ordered that the driver be reinstated to his job within 21 days of judgment. In summary In our view, this was an excellent outcome for the driver and for his union, the Bus Division of the Rail, Tram and Bus Union of New South Wales, which supported the driver throughout the whole case. In many cases, even if you have done the wrong thing at work, you still deserve procedural fairness and the employer cannot just impose any punishment they want. All relevant factors must be taken into account. If you have been accused of misconduct at work, you should contact your union or a lawyer experienced in employment law as soon as possible. Read more about this win in Workplace Express’ article “Bus driver’s sacking over mobile calls ‘disproportionate’: Tribunal” Legal advice and assistance continues during COVID-19 We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. Get help from an employment lawyer You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2020/march/bus-driver-reinstatement/ Mon, 30 March 2020 00:00:00 With the increasing number of recent cases publicised regarding wage theft across various industries in Australia, it is important that all employees know their workplace rights and entitlements. This is particularly relevant to wage rights including any underpayment of wages. In 2018-2019 alone, over $4.4 million in court-ordered penalties for breaching Fair Work Act provisions was recorded by the Fair Work Ombudsman. What award am I covered by? Awards provide entitlements such as pay rates, leave entitlements, overtime and other terms and conditions of employment. Not every worker is covered by an Award. There are 122 Modern Awards which provide minimum entitlements across various industries in Australia. Modern Awards are based on the industry you are employed in and the roles and duties you are required to perform in your substantive role. A full and comprehensive list of all Modern Awards is accessible through the Fair Work Commission’s website. If you have any uncertainty about your award, you should seek advice from your union or a solicitor. What do I do if I am not being paid my entitlements under my award or contract? If you believe you are not receiving accurate entitlements in accordance with your Award, employment contract or the National Employment Standards , you should first exercise all internal avenues to resolve the issue informally with your employer. You may wish to contact your Human Resources department for the appropriate policies and/or procedures in respect to raising a grievance or complaint. Need help with your underpayment of wages? Call us for advice: 1800 659 114 In raising your complaint with your employer, you should always do so in writing. The complaint should carefully set out your entitlements by reference to the NES and award as appropriate. Your union may be able to assist you with that process. It is important that you calculate the sum you believe you have been underpaid. In doing so it is important to consider the following: How much you have actually been paid – check your pay advices/payslips to confirm this; How much you ought to have been paid in accordance with your contract of employment or the applicable Award; How long you have been underpaid. The calculation of entitlements can sometimes be a complicated process. For that reason, it is often advisable that you seek advice, whether from your union or an expert employment solicitor. They can also investigate if colleagues (other employees) have also been underpaid. If the matter cannot be resolved with your employer directly, the next step is to send a formal Letter of Demand to your employer. Should you not receive payment of the outstanding entitlements from your employer within the timeframe set out in the letter of demand, you will be able to initiate court proceedings without further notice to them. Hall Payne Lawyers regularly assists employees with this stage of wage recovery. Suing for a breach of award or employment contract Once you have exhausted all other processes without success, the next step is to consider, and if necessary, commence court action. In the first instance, you must ensure you are making your claim within the statutory limitation of six years from the date of the underpayment. The court process can be slow and complex. If you are within the required time limitation and your claim is under $20,000, you will be eligible to make a claim in the small claim’s jurisdiction of the Federal Circuit Court. Regardless, it is still a good idea to seek advice about your entitlements and the process moving forward. If you do want to commence the proceedings, an Application is required to be filed with the Court Registry. This Application will have certain content requirements. After the application is filed, your employer will be required to file a response in the matter. Mediation will ordinarily be facilitated when making a claim in the small claim’s jurisdiction. The aim of mediation is to reach a settlement position with the consent of both parties. If a settlement is reached, a formal settlement agreement will be drafted which stipulates the sum to be paid to the employee and a timeframe that these monies must be paid.  Each party will be required to sign the settlement agreement. The settlement agreement should be a legally binding document. If a settlement is not reached at mediation, the matter will be listed for a final hearing, in which case a judge will decide the outcome of the matter. The decision may be delivered on the day of the hearing or reserved for some months. What are the penalties for breaching the award and/or an employment contract? Pursuant to Section 539 of the Fair Work Act (2009) , there are civil penalties which may be imposed in circumstances where provisions of the Fair Work Act have been breached. In circumstances where the court orders penalties, the following maximum penalties are available for an underpayment matter: Penalties of up to $12,600 per contravention for an individual, resulting from 60 penalty units (A penalty unit is equivalent to $210 by virtue of the Crimes Act 1914 (Cth ) s.4AA ); or Penalties of up to $63,000 per contravention for a body corporate, resulting from 5 x 60 penalty units. The court may order penalties for a contravention against both an individual and body corporate in the same matter. The court may also order that the penalties be paid to the employee. No penalties are available via the small claims proceeding; the case must instead be commenced in the usual jurisdiction of the court. In circumstances where it is determined that there has been a serious contravention of the Fair Work Act , greater penalties may be ordered by the court. What is a serious contravention under the Fair Work Act? Under Section 557A of the Fair Work Act (2009) , a serious contravention will have occurred where: a person knowingly contravened the provision; and the person’s conduct constituting the contravention was part of a systemic pattern of conduct relating to one or more other persons. If it is deemed that there has been a serious contravention, the maximum amount of penalty units that may be ordered is 600, resulting in the following potential civil penalties: penalties of up to $126,000 per contravention for an individual; or penalties of up to $630,000 per contravention for a body corporate. The penalty that a court orders may be paid to the Commonwealth, an organisation or an induvial. Compensation and interest for underpayment of wages It the court determines that there has been a breach of a provision of the Fair Work Act , the court may make orders which award compensation to the employee for any loss suffered. In doing so, the court may also impose interest. The amount of interest imposed will be at the discretion of the court when making the final orders. Get help from an employment lawyer If you believe you have been underpaid, or are looking for advice in relation to any employment law matters, please contact a Hall Payne Lawyers employment law team member for expert advice and guidance. Legal advice and assistance continues during COVID-19 We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2020/march/wages-underpayment/ Mon, 23 March 2020 00:00:00 Updated 18 May 2021 Hall Payne Lawyers will always work in accordance with Federal and State Government guidelines. With restrictions eased across Australia, all of our staff have returned to work in our various office locations. In line with World Health Organisation guidelines together with Australian Federal Government guidelines and any State Government specific requirements, this may change from time to time. We continue to offer a range of meeting services including face-to-face, by phone and by Skype or Facetime. When you contact one of our offices, you should discuss the options available to you. If you are experiencing flu-like symptoms including cough, sore throat, fever and/or fatigue, we request that you do not attend any of our offices but rather, you seek medical advice and assistance by calling your GP. If you have any queries, please do not hesitate to contact our CEO, Mark Wiggins, on 07 3017 2400 or by email at markw@hallpayne.com.au Stay safe Best regards Hall Payne Lawyers https://www.hallpayne.com.au/blog/rss/blog/2020/march/coronavirus/ Mon, 16 March 2020 00:00:00 You have suffered an injury at work. The thought of returning to work causes you stress. Continuing to work for the employer is untenable. You feel unsupported by your employer. You feel that it is time to part ways and you are considering resigning while on workers compensation. It may seem 'easier' for an injured worker to quit employment if there has been a breakdown in the employee-employer relationship. While you can resign, it is extremely important to understand that resignation may affect your Queensland workers compensation entitlements .  Resigning may take away your rights to further entitlements.  You should ensure you obtain legal advice before resigning. Receiving weekly benefits? If you are receiving weekly compensation payments and you resign, your weekly payments may be terminated. In essence, you cannot be better off on workers’ comp than you would be if you were working. Resigning from your employment does not terminate your medical or rehabilitation expenses; only the weekly payments. It is always best to seek legal advice before taking action such as resigning from your employment, even if you have not been able to undertake your duties for some time. What if I have another job to go to? If you resign to move to another job, on a lesser wage, you may not be able to claim the shortfall from the workers’ compensation insurer. There may be exceptions to this and therefore, we recommend you seek legal advice so that you know your rights before resigning. Notice Period If you do make the decision to resign after taking legal advice, ensure you give your employer the correct period of notice otherwise you could miss out on your entitlements such as accrued annual leave. Generally, an award, enterprise or registered agreement or contract will provide for the length of the notice period to be given. The notice period commences on the day after you give notice to your employer that you are resigning from your employment and ends on the last day of your employment. It is your decision to resign – it is not for an employer to agree or disagree with your resignation. You should ensure you obtain legal advice before giving notice of your resignation to your employer. Obligation to notify of a return to work It is important to understand that, if you return to any type of work, whether it be paid, unpaid, voluntary or helping out a mate, you should inform the workers’ compensation insurer. Otherwise, penalties and suspension of weekly payments may be imposed. Your employer terminates your position There is a protection in the workers compensation legislation that prevents an employer dismissing a worker solely or mainly because the worker is not fit for employment in a position because of the injury. If you are suffering from the effects of a work-related injury or disease, your employer cannot use the injury or disease as a reason to dismiss you, within 12 months of you suffering the injury or disease.  Termination of employment by an employer is a separate complex issue which could give rise to an unfair dismissal claim or some other course of action. If your employer, at any time terminates your employment, you should immediately seek legal advice from a lawyer experienced in employment law . Legal advice and assistance continues during COVID-19 We continue to provide our client services during the coronavirus outbreak.   Most of our teams have now returned to their respective offices with others remaining fully equipped to work remotely, where necessary. Get help from an employment lawyer You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2020/march/resign-on-workers-comp/ Mon, 16 March 2020 00:00:00 Updated: 26 March 2020 Coronavirus, also referred to as COVID-19, is a virus that causes illness ranging from the common cold to more severe medical issues such as respiratory illness . Currently, there is no vaccination against COVID-19. A number of Australian workers are rightly questioning their workplace rights and entitlements if they, or their colleagues, contract the virus. The World Health Organisation and the Australian Government have issued advice in practising isolation and good hygiene, such as regular hand disinfection and washing, and social distancing as methods of preventing the spread of the virus. Work Health and Safety Laws By virtue of section 19 of the Work Health and Safety Act 2011 (Qld) , and comparable legislation in other States and Territories, an employer has a duty of care, so far as is reasonably practicable, to provide a safe and healthy work environment. Employers have an obligation to provide appropriate training and updated information in respect to potential health and safety risks, such as information regarding preventing the spread of the virus. As with employers, employees also have a legal duty to take reasonable care that their acts or omissions do not adversely affect the health and safety of themselves or their coworkers. In line with the above obligations, employees should advise their employer of any potential exposure to Coronavirus and adhere to the requirement of isolation for a 14-day period, in line with the guidelines set out by the World Health Organisation. Further, an employer may require an employee to stay home where there is a reasonable basis for believing they are not fit for work, until such time the employee can provide a medical clearance. Where an employer directs an employee to stay home from work, the employer is ordinarily obliged to pay the employees their usual wages, as it is the employer who initiated the absence from work. Flexible work arrangements may also be implemented by agreement, in circumstances where it is appropriate for an employee to continue to fulfil their duties outside of the workplace, such as the employee working from home. Leave Entitlements Rights to access paid leave entitlements will firstly be dependent upon the basis of the employment arrangement – whether an employee is employed on a permanent or casual basis – and also on the applicable terms or conditions. In the first instance, refer to any employment contract, applicable award or enterprise agreement in place, to seek clarification on your leave entitlements. The National Employment Standards also apply the minimum standard. Where workers are employed on a permanent basis Where an employee is employed on a permanent basis, and they have been required by the government or similar authority to isolate, they may access their accrued paid annual leave entitlements. In circumstances where an employee does not have accrued paid leave, they can seek approved unpaid leave. Employees should try to reach agreement with their employers on such matters as they arise. In the event of an employee contracting the virus or caring for an immediate family member who has contracted the illness, an employee should be able to access their personal leave, or careers leave, as long as the relevant notification and evidence requirements have been met. Where workers are employed on a casual basis Casual employees are the most vulnerable in terms of leave entitlements. Casual employees will not have a legal right to access paid personal or annual leave entitlements. Some casuals may have access to long service leave and they should raise the possibility of accessing that leave with their employer. In circumstances where they are not in a position to attend their work, casual employees can seek approved unpaid leave. Employers have been encouraged to offer special paid leave for all employees, whether permanent or casual. This is to encourage staff to not attend work in circumstances where they are unwell, in a bid to prevent the spread of Coronavirus. It is also to ensure that casual staff are not placed into a compromised financial position and face having to decide whether to remain in isolation or attend work to receive their wages. Stand Down The impact of the COVID-19 pandemic has resulted in some employers standing down their workforce. Section 524 of the Fair Work Act 2009 allows an employer to stand down employees without pay for: “ a stoppage of work for any cause for which the employer cannot reasonably be held responsible ”. This will apply to workers in businesses affected by mandatory Government shutdowns. For example, airlines, event venues and hospitality workers may be stood down as a consequence of the Government’s directive that pubs and cafes close. You can access your accrued entitlements while you are stood down. You may also, with the agreement of your employer, access leave entitlements at, for example, half pay. There has been some confusion recently about access to Centrelink benefits (primarily JobSeeker allowance) if you are stood down as opposed to terminated, made redundant or the like. The simple answer to this is if you have been stood down, you are entitled to apply for the JobSeeker allowance, even if technically, you’re still employed. The Federal Government’s Social Security Guides state that a person who is on unpaid leave can be considered unemployed if they are not able to resume their employment and they are willing to look for suitable work. Importantly, if you have been stood down and wish to go onto the JobSeeker allowance, you must notify Centrelink by completing the ‘intention to claim’ form online. Discrimination Discrimination is currently a topical issue stemming from the community’s fear and concern around Coronavirus. In the circumstances, discrimination occurs when a person is treated less favorably or unfairly on the basis of an illness, impairment or disability . Employees’ rights against discrimination in the workplace are protected at both state and federal levels. If there has been an occurrence of discrimination, an application to either the Australian Human Rights Commission or the Queensland Human Rights Commission can be made to seek a remedy to the discriminatory behaviour. Discrimination law is however, a very complicated area. If you are concerned about such treatment, you should consider seeking legal advice as soon as possible. Accessing Workers Compensation Coronavirus is a disease which falls within the definition of injury in section 32(1) of the Workers Compensation and Rehabilitation Act 2003 (Qld) (the Act). Comparable legislation applies to other States and Territories. Section 32(3) of the Act specifically provides that an injury includes: “a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease.” If an employee is required to be isolated and is suspected of having the virus but hasn’t contracted it, then they are not entitled to workers’ compensation, as they have not sustained an injury. If, however, an employee contracts Coronavirus and can prove it was contracted in the course of employment and employment was a significant contributing factor, then the employee would arguably be entitled to workers’ compensation. Currently, with limited cases in Australia, proving the causal link to employment is possible. However, if the virus spreads throughout the community, it will become extremely difficult for a worker to establish the necessary causal link required for a workers’ compensation claim to be accepted. You can read more about COVID-19 and Workers Compensation here. https://www.hallpayne.com.au/blog/rss/blog/2020/march/coronavirus-and-work/ Wed, 11 March 2020 00:00:00 In Australia, most visa applicants must meet minimum health requirements before a visa will be granted. It’s called ‘obtaining a health clearance’. In recent times, there has been a number of media articles about applicants failing this requirement and looking at having to leave the country. This begs the question, what appeal options are there? In recent media coverage a family residing in Victoria (of Singaporean nationality) who had been here for 7 years, were facing rejection of a permanent residency visa. The father had developed kidney disease in Australia.   Another family last year (2019), faced departure after their son, born in Australia of parents who were Irish nationals, was diagnosed with cystic fibrosis .  There are many other such reports each year that don’t necessarily get any media coverage so the issue is only in the public domain for a short period of time and then often forgotten again. What’s required to meet the health requirement? The health requirement is a strict one and prevents anyone who has a disease or condition which would prejudice access to services for Australian citizens or permanent residents or put them at risk of harm, or which would result in a ‘significant cost’ to Australia, from being granted a visa.  There are no ‘hard and fast’ rules as to exactly what could ‘prejudice access’. The threshold for ‘significant cost’ is only $49,000, which as you could imagine, does not take long to amass under certain circumstances. The underlying legislation was the subject of an inquiry back in 2010 which resulted in many "common sense" recommendations being made by a broad spectrum of advisers, most of which have been ignored by government. One positive change that has been introduced is to reduce the period over which the assessment is made. It is a maximum of 10 years if the medical condition is permanent and the course of the condition is reasonably predictable beyond a five-year period. A case study In 2015, our Migration Agent, Leanne Taylor, had the pleasure in assisting a Filipino mother and her son appeal a decision to reject their visa application. This request was necessary because the son, who suffered autism, failed the migration health requirement for grant of a provisional visa which could later have led to a permanent visa application being made. Their plight attracted a huge amount of media coverage.  They had lived in the country for over 7 years. The son was diagnosed, after his arrival and as a 3 year old at the time. He is now 15 and was able to make significant advancements due to early intervention. His mother is a single parent working full time as a nurse in a regional area and had the support of close family, friends, work colleagues and the wider regional community she lives in.  We were able to obtain permanent residency through a request to the then Minister for Immigration and Border Protection, the Honourable Mr Peter Dutton.  Can an adverse decision be appealed? Unfortunately, immigration law is a complex area and is constantly changing.  What seems like common sense to the average person, doesn't always factor in to the decision-making process within the Department of Home Affairs, who administer immigration processes in Australia.  An applicant’s capacity to have an adverse decision appealed is determined by the type of visa application they have made and whether it was an offshore or onshore application. If you are in doubt as to whether or not you have appeal rights with regard to any adverse visa decision, please contact our Registered Migration Agent, Leanne Taylor In summary The stress and uncertainty that visa applicants are put through together with the costs involved to the individuals and the lengthy time that it takes to resolve these matters, without any guarantees of a successful outcome, are all things that should be able to be avoided. We need to continue to lobby government to take steps to implement more of the positive recommendations made in relation to the Australian visa health requirement, over many years. You can find out more about Australian immigration law including all types of visas, here. Get help from a registered migration agent  If you require advice or assistance in relation to any immigration issues, please contact our Registered Migration Agent, Leanne Taylor. https://www.hallpayne.com.au/blog/rss/blog/2020/march/visa-health-requirements/ Tue, 10 March 2020 00:00:00 Doing the work we do is extremely challenging and demanding but at the same time, highly rewarding. It’s particularly rewarding when recognition comes from your peers, by way of Awards. We’ve been delighted over the years to have been recognised in the Doyle’s Guide, year on year for a range of legal practice areas; at the firm level, lawyer level, state level and nationally. The 2020 “Employment Law” category has seen a string of awards across our various offices. We congratulate our individual award winners. At the same time, at both firm and lawyer level, we acknowledge the work, determination, passion and grit of our entire team. The wheel doesn’t turn effectively without every cog in place. Hall Payne Lawyers 2020 Employment Law Awards Firm Level Australia 2020 – Second Tier Leading Employment Law Firms (Employee & Union Representation) – Australia, 2020 QLD 2020 – First Tier Leading Employment Law Firms (Employee & Union Representation) NSW 2020 – Second Tier Leading Employment Law Firms (Employee & Trade Union Representation) Lawyer Level John Payne Leading Employment Lawyers (Employee & Union Representation) – Australia, 2020 Leading Employment Lawyers (Employee & Union Representation) – Queensland, 2020 Luke Tiley Leading Employment Lawyers (Employee & Union Representation) – Australia, 2020 Leading Employment Lawyers (Employee & Union Representation) – Queensland, 2020 Luke Forsyth Leading Employment Lawyers (Employee & Union Representation) – Australia, 2020 Leading Employment Lawyers (Employee & Trade Union Representation) – NSW, 2020 Joseph Kennedy Leading Employment Lawyers (Employee & Union Representation) – Australia, 2020 Leading Employment Lawyers (Employee & Trade Union Representation) – NSW, 2020 Ellie Bassingthwaighte Employment & WHS Rising Stars – Australia, 2020 https://www.hallpayne.com.au/blog/rss/blog/2020/march/employment-awards-2020/ Mon, 09 March 2020 00:00:00 Hall Payne recently acted for the Australian Aircrew Officers Association (“the AAOA”) in an industrial dispute with Cathay Pacific about remuneration for participating in training. Hall Payne Principal, Joseph Kennedy appeared in the FWC for the AAOA as advocate. The dispute related to clause 11.2 of the Cathay Pacific Airways Limited Australian Based Aircrew Enterprise Agreement 2016 (‘the Agreement’). That clause dealt with the manner in which Cathay’s Australian-based Airbus pilots were remunerated for doing E-learning training modules. Cathay’s interpretation of clause 11.2 of the enterprise agreement Cathay’s initial interpretation of clause 11.2 was that, as the employer, it had sole discretion over what types of courses constituted ‘E-learning’ and therefore attracted payment. They later purported to distinguish between ‘professional training’ which was necessary for pilots to be able to fulfil their roles, and ‘non-professional training’ which addressed things such as drug and alcohol policies or workplace discrimination. The flashpoint for the dispute was an online course about a new model of aircraft (‘the A350-1000 Differences Module’), which Cathay required its pilots to undertake. Cathay considered this to be ‘professional training’ and accordingly declined to compensate the pilots for the time they spent doing the training. AAOA challenges the decision of Cathay The AAOA disagreed with Cathay’s interpretation of clause 11.2, saying it was inconceivable that the drafters of the clause would have intended to give the employer such an unfettered discretion. Such an interpretation could render the entitlement meaningless. The AAOA argued that the principles governing the interpretation of workplace instruments required terms such as ‘E-learning’ be given their plain and ordinary meaning. It submitted that the plain and ordinary meaning of ‘E-learning’ was computer-based training or learning that was required or directed by Cathay to be undertaken by an employee. Such training could be undertaken in their own time using the employee’s own computer equipment. Fair Work Commission says Cathay’s “inconsistency and selectivity is breath-taking” A similar dispute had arisen between Cathay and its pilots in the United States of America. That dispute was arbitrated by an American tribunal. Cathay had requested that the Australian proceedings be put on hold pending the outcome of the proceedings in the US. Those proceedings were ultimately resolved in favour of the American pilots. In the Australian proceedings, Cathay then argued that the US decision should be given little weight by the Commission because it was in a different jurisdiction and under a different legislative framework. In rejecting Cathay’s arguments, Deputy President Sams of the Fair Work Commission said that Cathay’s “inconsistency and selectivity is breath-taking”. The Commission: resolved the dispute in favour of the pilots, agreeing with the proposed definition of ‘E-learning’; and held that the A350-1000 Differences module constituted ‘E-learning’ for the purposes of clause 11.2, thereby attracting remuneration in accordance with the Agreement. This was an excellent result for the Australian pilots employed by Cathay Pacific. Get help from an industrial lawyer Hall Payne prides itself on making sure that workers are able to access the full extent of their employment entitlements. If you’ve been wronged by an employer in relation to your workplace rights and entitlements, you should seek advice from your Union or a lawyer experienced in industrial law . https://www.hallpayne.com.au/blog/rss/blog/2020/march/aaoa-pilots-win/ Mon, 02 March 2020 00:00:00 When determining an unfair dismissal claim, the Fair Work Commission (“FWC”) will consider if the termination of employment was harsh, unjust or unreasonable. When assessing the application, section 387 of the Fair Work Act 2009 (Cth) (“the Act”) prescribes that the FWC must consider the following: Whether there was a valid reason for the dismissal (a)   whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees) Whether procedural fairness was afforded to the employee (b)  whether the person was notified of that reason; and (c)  whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and (d)  any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and (e)  if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal; and (f)  the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g)  the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal Any “other matters” that the FWC considers relevant Whether a valid reason for dismissal existed and procedural fairness was afforded to the dismissed employee, are factors that employment lawyers immediately turn to when preparing an unfair dismissal application. Case law demonstrates that these factors are pivotal in determining whether a dismissal was unfair. But s387 makes it clear that “other matters" that the FWC may consider relevant must not be overlooked. In the recent case (January 2020) of Zelman v Billboard Media [2020] FWC 5 , “other matters” that were considered by the FWC significantly strengthened the unfair dismissal case, in favour of the worker. Background of the case • The Applicant was employed as a full-time account’s receivables officer at Billboard Media (“the Respondent”). • She was employed from 3 July 2018 until 13 August 2019. • In the week leading up to 13 August 2019, the Applicant reported to her HR Manager, that she was unwell. • On 13 August 2019, the Applicant attended work but told the HR Manager that she was still unwell and could only expect to work a half-day. • At lunchtime on 13 August 2019, the Applicant left work. • At approximately 2.30 pm on the same day, she received an email from her HR Manager which stated as follows: "Thank you for your resignation. We accept your notice of today’s date. We will be arranging the payment of your entitlements in the next pay run. Should you wish to discuss the matter further, please contact me on the number below.” The Applicant subsequently lodged an unfair dismissal application to the FWC. In her unfair dismissal application, and during the FWC hearing, the Applicant was adamant that she had not resigned. The FWC accepted her evidence, finding in her favour.  The FWC took the following matters into consideration.   Section 387(a) – Valid Reason The FWC found that Billboard Media did not produce any evidence about any capacity or conduct issues that would have justified the dismissal of the Applicant despite having the opportunity to do so. Therefore, there was no “valid reason” for the dismissal. Section 387(b) to (g) – Procedural Fairness Sections 387(b) to (e) address procedural fairness. The FWC found these factors to be irrelevant or neutral considerations given that: there was no valid reason for the Applicant to be notified of the reason for her dismissal; The Applicant's dismissal did not relate to her capacity or conduct; The Applicant did not appear to have an opportunity to discuss her dismissal; and The Applicant had not been counselled or warned in relation to her performance and the dismissal did not relate to unsatisfactory performance. The FWC also found that Billboard Media’s size (approximately 70 employees) was no excuse for the procedure it followed. Further, they did not lack dedicated human resource management specialists and expertise and therefore there can be no excuse. Section 387(h) – Other Matters As we’ve already indicated, the FWC is required to take into account any “other matters” it considers relevant when assessing whether a dismissal was unfair. The Applicant gave evidence that during her employment with Billboard Media: • she had been subject to sexual harassment innuendo and inappropriate comments; • she made verbal complaints and a written complaint to the HR Manager, on at least two occasions, about this; and • no investigation was undertaken, despite the conduct which the Applicant had reported. The FWC found this to be a relevant matter in relation to assessing the fairness of the Applicant's dismissal. They stated that the inappropriate conduct that the Applicant was exposed to: “ reflects poorly on the management of the Respondent [Billboard Media] and is an aggravating factor in the matter of the termination of the Applicant’s employment. I find that those circumstances further weigh in favour of a conclusion that the dismissal was harsh, unjust or unreasonable. ” After concluding that the Applicant was unfairly dismissed, the FWC stated that it would seek submissions in relation to the appropriate remedy that should be ordered in the Applicant's favour. At the writing of this article, the remedy is yet to be determined. Lessons for employees Whether a valid reason for dismissal arose and procedural fairness was afforded to a terminated employee is essential to determining whether the dismissal was fair. However, importantly these are not the only relevant factors that the dismissed employee should turn their mind to. As this case demonstrates, the FWC will also take into account “other matters” it considers relevant. The Applicant's evidence of being exposed to inappropriate conduct ‘ further weigh[ed] in favour of a conclusion that the dismissal was harsh, unjust or unreasonable .’ However, even if the Applicant had not made those other submissions, it is still likely that her dismissal would have been found to be unfair. This is because the FWC ultimately found that there was not a valid reason for her dismissal and she was not properly afforded procedural fairness. This decision serves as a reminder that employees should not confine their unfair dismissal applications to only considering whether a valid reason for dismissal arose and procedural fairness was afforded to them. They should consider any other matters that could give weight to their argument. Get help from an employment lawyer  If you’ve been dismissed and you think it’s unfair, unjust or unreasonable, it’s important to note that strict time limits apply to lodging a claim for unfair dismissal . Seeking immediate advice and assistance from an employment lawyer experienced in unfair dismissal claims is crucial to securing any rights and entitlements you may have. https://www.hallpayne.com.au/blog/rss/blog/2020/february/unfair-dismissal-other-factors/ Mon, 24 February 2020 00:00:00 Property settlement in family law is often formalised through court orders or with a Binding Financial Agreement (BFA). BFA’s are often colloquially referred to as prenuptial agreements although it should be noted that not all BFA’s are, in fact, prenups. In this article, we look at what happens if you separate or divorce, finalise the division of your assets and then years later decide that you either want or need more from the property pool than you originally received. The answer to this question depends on a variety of different circumstances. 1.  You have Family Court Orders for your financial and property matters If you have already been through the Family Law Courts and have an Order for financial/property matters, it is highly unlikely that you will be granted leave (permission) to claim more money or assets years after your divorce or separation. However, if you are able to prove that your partner did not disclose their true financial position frankly or there is a serious allegation of fraud or duress, then a court might grant you leave to make a further application. Any alleged fraud will need to be proven to the court. Ultimately, however, it is extremely rare for a party to gain a significant amount more than what had already been ordered unless other substantial assets are discovered and considering the potential legal costs involved, this may end up being an empty victory.   2.  You have a Binding Financial Agreement (BFA) If you already have a Binding Financial Agreement (BFA), a court can set that agreement aside for a variety of reasons. The following are circumstances where a court may make an order to set aside a Binding Financial Agreement: Misrepresentation or fraud; Fraud against third parties; Uncertainty and incompleteness; Impracticality; Unconscionable conduct, duress, undue influence; and/or change of circumstances for the children. If a court does set aside your financial agreement due to any of the above circumstances, this will allow you an opportunity to initiate fresh proceedings through the Family Law Courts and could see a different outcome with regard to the division of property. 3.  You do not have a Binding Financial Agreement or court order If you have no BFA or court order for financial and property matters and you attempt to claim more assets or money years after separation, you must demonstrate to the court why you should be granted leave (permission) to make an application years after your divorce or separation. You will be required to satisfy the court that you have a real possibility of success in making a property settlement claim and demonstrate that hardship would be caused if leave was not granted. The court will then consider the following in exercising their discretion: the length of delay and reasons for the delay; the prejudice that could be caused to the other party; the merits of your case; and the degree of hardship caused if leave was not granted. Time limits apply to property and financial matters in family law It is important to note that strict time limits apply to applications to finalise property and financial matters in family law .   For married couples, applications for property and financial matters must be commenced by filing in court within 12 months of finalising your divorce. For de facto relationships, the Family Law Act allows a period of 2 years after the end of a relationship to file for property or financial application. If you have missed these deadlines and there is no BFA in place, there is nothing to prevent you and your former partner from beginning negotiations with each other in an attempt to reach a financial agreement. It’s worth noting, however, that since you are out of time, your former partner may or may not wish to enter into negotiations with you. Unfortunately, it is often in your former partner’s best interests to not respond until you have obtained leave from the court to apply for a formal property settlement. Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2020/february/property-settlement-future-claims/ Sat, 15 February 2020 00:00:00 If you or a family member have suffered an injury or illness which you believe has been caused through the negligence of a medical practitioner, hospital or any other health provider, you may have a medical negligence claim for compensation (also referred to as medical malpractice). In this article, we look at what may lead to a medical negligence claim for sufferers of encephalitis. What is encephalitis? Encephalitis is an inflammation of the brain.  There are several causes but the most common is a viral infection. It can affect anyone; it is not age-related and therefore, children can suffer from the condition and the consequences of the condition can be devastating for both the sufferer and the family. It is potentially life-threatening and may lead to permanent brain damage or death. Timely diagnosis and treatment are important. Why might medical negligence occur? The consequences of encephalitis can have significant impacts on the mental wellbeing of the individual and their family. This illness can affect a person’s ability to work and can negatively impact the person’s social life and relationships with others. People suffering this condition may also require ongoing care.  The associated costs of managing the consequences may be significant. If the outcome was made worse as a result of a medical error, then the individual or their family may have a claim for compensation. If the standard of the treatment received by the individual falls short of that which the medical profession itself would expect; for example, in relation to a failure to diagnose the condition, a failure to carry out appropriate tests (such as imaging study of the brain,   CT scan  or MRI or a lumbar puncture) or a failure to provide appropriate treatment, then it is important to seek legal advice regarding your rights. Every case is different and it depends on the particular circumstances of the case as to whether a medical error can be established. Are there time limits? There are time limits when it comes to making a claim for medical negligence in Queensland. Your entitlement to compensation may be lost if you claim late. Generally, the time limit is three years from the date of the negligent incident, however, there are many exceptions to this general rule.  Get help from a medical negligence lawyer  It is important to seek expert advice from a lawyer experienced in medical negligence . Contacting Hall Payne Lawyers  Hall Payne knows that when you are dealing with the consequences of an injury or illness, it is a very challenging time. Financial stress can make the situation overwhelming.  If you would like to discuss your or a family member’s circumstances surrounding any potential medical negligence claim (either for encephalitis or any other condition, injury or illness), please contact HPL for advice. https://www.hallpayne.com.au/blog/rss/blog/2020/february/encephalitis-med-neg-claims/ Mon, 10 February 2020 00:00:00 In short, the answer is yes. While we hope you never have to make the decision to take legal action for injury compensation on behalf of your child, if the situation arises, it is best for you to know that steps can be taken to protect your child’s interests.  To say that your main concern will be your child’s wellbeing is an understatement. While you can focus on ensuring your child receives appropriate medical treatment to achieve the best recovery, a lawyer can take the necessary steps to ensure your child’s rights to make a claim for compensation are protected. Each year, many children suffer injuries and disabilities as a result of: motor vehicle accidents; accidents while at school; dog attacks; faulty products; accidents in public places such as playgrounds ; and due to medical negligence. If your child is working and suffers a workplace injury or illness, they will also be entitled to make a workers’ compensation claim. The consequences of an injury or illness can be devastating for both the child and the family. It can also have significant impact on the mental wellbeing of the child and their family including: affecting a parent’s ability to work; negatively impacting on the family’s social life; affecting relationships with others; and the needs of the child to ongoing care. The associated costs of managing the consequences of an injury or illness may be significant for the family. If a child has been injured through accident or through medical error, then the child or their family may have a claim for compensation. How can I make a claim? A child is entitled to make a claim for compensation if they have been disabled or injured due to the negligence of a third party, including where the child’s health and wellbeing has been caused by the negligence of a doctor, hospital or other health provider.  Where a mother, before the child was born, received medical treatment that falls short of that which the medical profession itself would expect (in other words negligent medical treatment; often referred to as medical malpractice) resulting in injury or disability to the child, the child can also bring a claim for compensation.  For example, where a baby, during birth, suffers disability as a result of being deprived of oxygen. While a child does not have the legal capacity to bring the claim themselves, the only requirement for a child claimant is that they are represented by a Litigation Guardian; that is, a person who acts in the child’s interests and manages the claim on behalf of the child. What can I claim on behalf of my child? Children, when injured, may require different treatment to that of an adult. The cost of investigating and treating the child’s injury or illness can be costly to say the least and ongoing for the remainder of the child’s life. The outcome of the treatment may be difficult to predict at an early stage as the doctors may not know the impact of the injury or illness on the child until they reach adulthood. When a child suffers a head or brain injury, it may take several years before the impact of that injury on the child can be appropriately assessed. Reasonable predictions on likely employment options for the child may be more accurately determined after the child completes their high school education. The need for allied health intervention and/or therapies and for aides and equipment to manage the ongoing impact of the injury or illness may become more severe or obvious as the child grows up. While we hope your child does not suffer a life-changing injury or illness, if he or she does, then many questions will be asked. What will your child need to help them manage their injury or illness? Can they go to mainstream school or is a special school required? Do they need ongoing occupational therapy input to manage their educational needs? For a child who suffers a head or brain injury, the rehabilitation process can be long-lasting with the need for ongoing assessment of your child’s needs; from childhood through to adulthood and often, for life. Compensation that may be available for your child includes: damages (a lump sum payment) for the pain and suffering experienced by your child; money to compensate your child for their loss of earning capacity; funds for rehabilitation such as therapists and equipment to improve your child’s quality of life; funds for the care needs (such as disability support workers) of your child. When should I make a claim? Strict time limits apply (even in the case of newborns, infants and very young children) and their entitlement to compensation may be lost if you claim late. Our recommendation is not to delay speaking with a lawyer. Why? Delay in notifying a third party of a potential claim could result in evidence being lost or destroyed, memories of witnesses fading or the inability to locate witnesses. Claims involving children, particularly medical negligence claims, often involve quite complex issues. Navigating the issues to be addressed is quite challenging and there is usually a need to obtain expert opinion to support a claim. It is important that any professional opinion is sought from the most appropriate experts; which is difficult for the layperson to identify. Get help from a personal injury lawyer It is important to seek legal urgent advice from a lawyer experienced in compensation claims for children, to ensure the rights of your child are protected. https://www.hallpayne.com.au/blog/rss/blog/2020/february/injury-claims-for-children/ Mon, 03 February 2020 00:00:00 In Australia, there are a number of visas available for people seeking to visit, work, study or immigrate. There are strict guidelines and processes for all visa applications and it’s not simply a matter of having a friend help you with your application. The type of assistance you are seeking will determine who may be able to assist you. For example: Anyone can help you to complete a form. Anyone can advise you that you need to apply for a visa. Anyone can pass on information from a third person, without adding any comment for further explanation. Are you looking for advice regarding your visa application? To provide someone with immigration advice and assistance, a person needs to be either a Registered Migration Agent (RMA) or an “ exempt person ”.  This is designed to provide protection for visa applicants because RMA’s are regulated and have a strict Code of Conduct that they must abide by. It is illegal for anyone else to provide you with immigration assistance, even an education agent (unless they are also an RMA). The Australian government lists the following people as “exempt persons” in relation to authority to provide immigration assistance: A nominator; A sponsor or close family member of the visa applicant; An official giving assistance as part of their job; A parliamentarian; A member of a diplomatic mission, consult post or international organisation; A person providing free help to prepare a submission to the Minister. Penalties apply for providing immigration assistance when not registered to do so It is an offence to provide immigration advice or assistance unless you are a registered migration agent or an exempt person. Significant penalties apply to anyone committing this sort of offence; up to two years imprisonment.   If a service fee is charged, the penalty could be up to ten years imprisonment. Don’t risk your visa application and the substantial government charges you will pay by seeking immigration assistance from someone who is not qualified to provide it and who could quite simply get it wrong!  What does provide ‘immigration assistance’ include? Immigration assistance includes someone using knowledge of, or experience in, migration procedures to assist with visa applications and other visa matters including: preparing, or helping to prepare, a visa application or other document; providing advice about a visa application or visa matter; representing in, or preparing for, proceedings before a court or review authority regarding a visa matter. Get help from a registered migration agent  Hall Payne Lawyers can help you with any matters related to immigration law, including any of your visa application queries . We’ve assisted a wide range of clients seeking visas in the following areas: Family (including Child and Parent); Employer sponsored; Partner; Prospective marriage; Working holiday; Student; Skilled; Visitor; Business investor; Training; Recent graduates; and many more. If your visa application has been refused, we can assist with review applications through the AAT and along with Ministerial Intervention applications. For advice or assistance, get in touch directly with our Registered Migration Agent, Leanne Taylor . https://www.hallpayne.com.au/blog/rss/blog/2020/january/visa-applications/ Tue, 28 January 2020 00:00:00 Child Support Agreements (both limited and binding) are an integral part of the family law system and are used to set out how your child or children should be supported financially by either or both parents. Why use Child Support Agreements? Family law courts generally have no power to order a parent to make periodic or non-periodic payments of child support/children’s expense payments by one parent to another or a third party such as a school. Child Support Agreements are essentially private agreements between the parties which can be used to specify, limit or reduce the amount of Child Support required to be paid by one party compared with the standard formula assessment conducted by the Child Support Agency. More importantly, it provides the parties with input into how their children should be financially supported. At a practical level, they can be a useful tool in negotiating Consent Orders for parenting and property arrangements with your former partner as it provides a level of financial certainty to the parents/carers of any children, about how those children will be supported financially until they reach the age of 18 or have completed their secondary education. 6 significant differences between Binding and Limited Child Support Agreements Limited Child Support Agreements must already have a Child Support Assessment in place. Binding Child Support Agreements do not require an assessment in place and can be entered into with or without a Child Support Assessment. The amount payable under the Limited Child Support Agreement must be equal to or greater than the amount payable under the Child Support Assessment. A Binding Child Support Agreement can range from a periodic payment of NIL to a specific amount for each child; thereby providing more flexibility to the parties. Subject to point 6 below, a Limited Child Support Agreement can be ended unilaterally (without agreement) by providing notice as long as the agreement has been in place for a period of 3 years. Binding Child Support Agreements do not have this characteristic and will end upon the making of a new Binding Child Support Agreement effectively terminating or replacing the previous agreement or when the child turns 18 years of age or completes secondary school (whichever is the latter) or by a court order. Limited Child Support Agreements do not require the parties to obtain independent legal advice in relation to the agreement. Binding Child Support Agreements require both parties to obtain independent legal advice and for their legal advisors to issue a Section 80C Certificate which ultimately states that you have received advice pertaining to the effect of the agreement on your rights as well as the advantages and disadvantages at the time the advice was provided. Therefore, Limited Child Support Agreements are a more cost-effective option in this aspect. The terms of a Limited Child Support Agreement do not take effect unless and until it is registered by the Child Support Agency. A Binding Child Support Agreement can take effect on the day the Agreement is finalised and either party will be at liberty to register the agreement with the Child Support Registrar. Limited Child Support Agreements can be terminated by either party providing 60 days’ notice if the notional assessment changes by more than 15%. Variables which affect notional assessments are the change in either party’s taxable income, change of care arrangements and the childrens’ ages. Binding Child Support Agreements do not contain this element and therefore provide greater certainty to both parties. Both Binding and Limited Child Support Agreements have their benefits and limitations. Which agreement is right for you will ultimately depend on your particular circumstances at the time of entering the agreement and/or any anticipated future changes you expect with your work, living circumstances or income. Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2020/january/child-support-agreements/ Tue, 21 January 2020 00:00:00 Health practitioners who hold registration with one of the National Registration and Accreditation Boards are required to renew their registration annually to be able to continue to practise. At renewal time you will be asked questions about, among other things, your suitability to hold registration so your Board can determine whether to renew your registration. You also have obligations to continually disclose certain events to your Board throughout the registration year in respect of “relevant events”. Many practitioners are not aware of these requirements and run into trouble by not making a notification at the right time or at all. Failure to notify your Board may result in action being taken against your registration, including disciplinary action for unprofessional conduct . When must health practitioners make notifications to the National Board? You must notify your Board within seven days in writing after becoming aware of any of the following. Being charged with an offence punishable by 12 months imprisonment or more. Being convicted or found guilty of an offence whether punishable by imprisonment (including less than 12 months imprisonment). Appropriate professional indemnity insurance arrangements not being in place in relation to your practice of the profession. Your right to practice at a hospital or another facility in which the health services are provided being withdrawn or restricted because of your conduct, professional performance or health. This, in our view, does not apply to disciplinary processes – but it is imperative you seek advice if this occurs. Your billing privileges being withdrawn or restricted under the Medicare Australia Act 1973 because of your conduct, professional performance or health. Your authority to administer, obtain, possess, prescribe, sell, supply or use a scheduled medicine or class of scheduled medicines being cancelled or restricted. A complaint being made about you to any of the following entities: the CEO under the Medicare Australia Act 1973; an entity performing functions under the Health Insurance Act 1973; the secretary within the meaning of the National Health Act 1953; the secretary to the Department in which the Migration Act 1958 is administered; another Commonwealth, State or Territory entity having functions relating to professional services provided by health practitioners or the regulation of health practitioners. Your registration in another country being suspended or cancelled or made subject to a condition or another restriction. When must ‘student registrants’ make notifications? If you hold student registration you must notify your Board within seven days after becoming aware of any of the following. Being charged with an offence punishable by 12 months imprisonment or more. Being convicted or found guilty of an offence whether punishable by imprisonment (including less than 12 months imprisonment). Your registration in another country being suspended or cancelled or made subject to a condition or another restriction. Being issued with a Notice to Appear, by a police officer, constitutes being charged with an offence and the seven-day period commences from receiving the Notice to Appear. Get help from an employment lawyer  The process of notifying the Board is simple. Contact Hall Payne Employment Lawyers to speak with one of our professional conduct team about what you need to do . https://www.hallpayne.com.au/blog/rss/blog/2020/january/health-practitioner-notifications/ Tue, 14 January 2020 00:00:00 The Fair Work Act 2009 (‘ the Act’ ) does not prescribe what is a valid reason for dismissal from your employment. It considers factors which may render a dismissal harsh, unjust or unreasonable which could give rise to an unfair dismissal claim . In today’s article, we consider whether ‘attending a family dinner late amounts to a valid reason for dismissal’. In the recent decision of Parente v Selective Smash Repairs Pty Ltd [2019] FWC 7559 , the Fair Work Commission (FWC) reviewed an employer’s bizarre decision to terminate an employee (who happened to be the employer’s son) after he attended a family dinner late. Background The employer, Selective Smash Repairs Pty Ltd, was run by Mr Egidio Parente, with his son Mr Pasquale Parente also working for the family business. On Sunday 10 March 2019, Pasquale was late for dinner at his parents’ house. As a result, his parents became angry, with an argument ensuing. Pasquale was subsequently told to leave and never come back, either to his parents’ house or to the business and was dismissed from his employment immediately. Pasquale attempted to contact his parents the following day for clarification but his calls went unanswered. An unfair dismissal claim was lodged Pasquale filed an unfair dismissal application under s. 394 of the Fair Work Act 2009 claiming his dismissal was unfair. A conciliation was held but failed to resolve the claim and the FWC was ultimately left to review and determine whether the dismissal was unfair. In considering the claim, the Commissioner expressed the following view: ‘It is, to my mind, extremely sad that what was once a loving family has allowed relationships to deteriorate to the extent that they have. However, Pasquale has the right to bring his claim and I must deal with it accordingly.’ Was the dismissal consistent with the Small Business Fair Dismissal Code? As Selective Smash Repairs was considered a small business under the Fair Work Act 2009 in that it employed fewer than 15 people, the FWC examined whether the termination was consistent with the small business dismissal code, often referred to as the checklist (‘ the Checklist ’). The Act refers small businesses to the Checklist as a tool to help small business employers when considering terminating an employee. The Checklist includes a number of simple questions for an employer such as: How many employees are employed in the business? (Including the dismissed employee and any other employee dismissed at the same time). Did you dismiss the employee for some other form of serious misconduct? Did you dismiss the employee because of the employee’s unsatisfactory conduct, performance or capacity to do the job? Did you keep any records of warning(s) made to the employee or of discussions on how his or her conduct or performance could be improved? Completing the Checklist is not a mandatory requirement under the Act , however, completing it is important as the FWC will examine whether the termination was consistent with the Checklist. In considering the Checklist in this case, the FWC found that the termination was not consistent with the small business dismissal code in that: the dismissal occurred without warning; there was no evidence that the business or any of its officers held any relevant belief that the conduct of Pasquale was so serious that immediate dismissal would be justified; and there was no evidence of any warnings being given to Pasquale before he was dismissed. Was the dismissal harsh, unjust or unreasonable? There is no hard and fast rule as to what constitutes a harsh, unfair or unreasonable dismissal . Each dismissal is different and accordingly, the surrounding circumstances of each claim will be considered by the FWC. In this case the FWC examined each of the considerations surrounding whether the dismissal was harsh, unjust or unreasonable and concluded that: failing to attend a family dinner cannot be characterised work-related conduct; there was no valid reason for dismissal based on Pasquale arriving late for a family dinner. The Commission acknowledged that the relationship with his parents had been under strain, however that there was insufficient context to explain why arriving late for dinner would have been a valid reason for dismissal; and there was no evidence of previous unsatisfactory performance. Outcome Having considered each of the matters specified in s.387 of the Fair Work Act 2009 (as referred to above), the Commission found the dismissal was unjust and unfair, making an order for compensation in lieu of reinstatement. Have you been dismissed and you think it is unfair? It’s important to act fast. You should seek urgent advice from a lawyer experienced in employment law . You can contact our employment law team for further advice or assistance . https://www.hallpayne.com.au/blog/rss/blog/2020/january/sacked-late-for-dinner/ Tue, 07 January 2020 00:00:00 Medical negligence claims are brought against medical practitioners and institutions (for example, a hospital) that have caused or contributed to your suffering or injury . In this article, we look at what may lead to a medical negligence claim for sufferers of cauda equina syndrome. What is Cauda Equina Syndrome ? Cauda Equina Syndrome is a serious condition that occurs when the bundle of nerves at the base of the spinal cord are damaged. If the condition is left untreated for any time, or there is a delay in diagnosing the condition, then a permanent disability is very possible. Low back pain can be a symptom of this serious condition and the consequences for the person suffering cauda equina syndrome can be devastating. By way of example, it can lead to incontinence and even permanent paralysis. The consequences of cauda equina syndrome can have significant impacts on the mental wellbeing of the sufferer. The severity of the symptoms can impact a person’s ability to work. Bladder or bowel incontinence problems can be extremely distressing for those suffering the syndrome and may well negatively impact the person’s social life and relationships with others.  Why might medical negligence occur? On occasions, it is possible that the standard of treatment received by a person may fall short of that which the medical profession considers appropriate. If the cauda equina syndrome has resulted from a medical error, such as a failure to diagnose the condition or treat the condition in a timely way, then the sufferer of the condition may have a claim for compensation. Medical negligence claims are, by their very nature, complex and require significant knowledge and expertise. Are there time limits? There are time limits when it comes to making a claim for medical negligence. Your entitlement to compensation may be lost if you claim late. Generally, in Queensland, the time limit is three years from the date of the negligent incident. However, there are many exceptions to this general rule.  Do not just assume you are out of time to investigate a claim for medical negligence. It is important to seek expert advice of a lawyer experienced in medical negligence cases .  Contact us Hall Payne knows that when you are dealing with the consequences of an injury or illness, it is a very challenging time. Financial stress can make the situation overwhelming.  If you would like to discuss your or a family member’s circumstances surrounding any form of alleged medical negligence, please contact HPL for advice . https://www.hallpayne.com.au/blog/rss/blog/2019/december/cauda-equina-syndrome-medneg/ Tue, 31 December 2019 00:00:00 In Australia, it is quite common to hear scenarios where parents gift their child a substantial amount of money; perhaps as a deposit on a first home or maybe to travel or do renovations. What we’re looking at today is how that ‘gifted money or property’ is treated in any family law property settlement. How does the family law system treat gifts? Gifts of this nature are often considered or treated by the courts as a contribution to the property pool by the party whose relative provided the gift, even if it was originally gifted to only one party. The courts will also consider the intention of the donor. The case of Gosper held that a gift of a property by the wife’s father was clearly a gift made only because of the relationship between the father and daughter and in reality, as a means of benefiting the daughter. Therefore, even after the father gifted the property and the wife held it in joint names with her husband, the property was held to be a contribution on behalf of the wife only. On the other hand, if a family business was gifted to one party but both parties equally contributed to that business (for example, they both worked in the business without pay), then the courts may consider that both parties contributed to that gift even though the family business had been was registered in one party’s name. The ‘erosion principle’ of gifts It is also important to note the value of significant financial gifts can ‘erode’ or ‘diminish’ over time. We recently had a client whose father-in-law gifted the parties a block of farming land shortly after the parties married. When the parties separated after over 22 years of marriage, we advised our client that the gift/contribution would have eroded over such a long marriage. Additionally, the parties both worked on the farm. Therefore, any significant contribution claim raised by the other party would be insignificant. Determining if it was a gift or a loan It is important to note that gifts are usually not expected to be returned or repaid, unlike loans. When marriages go awry we regularly see situations where the donor, who is often a relative, claims that the money needs to be repaid as it was only a loan. Without supporting documentation and evidence, there have been instances where loans from relatives were considered as gifts and, therefore, as contributions to the property pool. If there is an intention to accept a loan, it is prudent to have a formal loan agreement prepared detailing the amount borrowed, any interest payable, the repayment amount and the term of the loan. Once the loan agreement is drafted and executed by the parties, it will need to be strictly followed. Only then might the court consider that a genuine intention to create a loan existed. Failing this, the court could consider the alleged loan as a contribution or gift. If the court determines that it is a gift, then it will determine the contributions of each party to the gift. Personal gifts between former partners Gifts are often exchanged between spouses during the relationship. Gifts such as jewellery, luxury goods, electronics and so forth will often be considered personal possessions of a party in the property pool. When valuing these items, it is imperative to remember that the courts do not accept the replacement or insurance value of these items. The value ascribed to these items should be the value that a willing buyer will pay for the second-hand item. In property negotiations, it is always important to keep in mind which personal possessions or items you wish to retain and which items you do not. If neither party wishes to retain a specific item or property an option would be for it to be sold and the proceeds from sale will be held in a Trust account until such time the court or the parties agree as to how to distribute the proceeds of sale. Accordingly, the value will be determined by what the item sold for. If an agreement cannot be reached in relation to specific items which are substantial in value, for example, machinery or tools, a valuer will need to be instructed to value these items. This will incur further legal costs. It is important to take a commercial approach (not an emotional approach) to property matters in family law as valuation reports usually come back less than what is expected. Ultimately for a court to determine how a gift is dealt with in family law property proceedings it will depend upon the nature of the gift and the circumstances surrounding the giving of the gift, including the intention of the donor. Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2019/december/family-law-gifts-and-loans/ Mon, 23 December 2019 00:00:00 Recently, a VIPA (the Association for Virgin Australia Group Pilots) member received a positive outcome in a case where the member’s career was at risk, due to a decision by the Civil Aviation Safety Authority (CASA) to cancel his medical certificate – essential to be a commercial pilot in Australia. The case related to the union member’s medical condition and, in a decision we argued was contrary to supporting medical evidence, CASA’s decision to cancel the member’s medical certificates, by virtue of Regulation 67.255 of the Civil Aviation Safety Regulations . Case background The member was diagnosed with a spontaneous pneumothorax . This subsequently rectified itself within ten days of originally occurring. The member was cognisant of the strict rules and regulations with respect to managing medical illness or injury, which are imposed by CASA. He adhered to these rules, sought appropriate medical treatment and kept CASA informed all the way along. The member’s designated aviation medical examiners (DAME) determined that he was fit to return to flying status after a mandatory six-week preclusion from flying. Despite the advice of the DAME and the strong support and professional advocacy of VIPA, CASA cancelled his medical certificates. Without a medical certificate, he could not fly. His employment and his whole career was in jeopardy. The stakes could not have been higher. VIPA determined to fight for their member and appeal the CASA decision. They called in Hall Payne employment lawyers, Luke Forsyth and Jennifer Diplock to appeal CASA’s decision. Effect of the CASA decision to cancel the member’s medical certificates This decision meant that the member was faced with the real risk of being dismissed from his employment, as the member could not fulfil the substantive duties of their role.  The member would also face the loss of his career as a pilot. The CASA decision to cancel the medical certificates, had it stood, could have been detrimental to other pilots who found themselves in similar circumstances. This decision posed a significant risk to other pilots who may suffer a similar respiratory illness or condition in the future. Hall Payne appeals the decision on behalf of the worker An Application for Review of Decision was filed in the Administrative Appeals Tribunal to have the decision set aside and to get the member back in the air. The Appeal and additional medical evidence, caused CASA to reconsider their position and approach Hall Payne to resolve the Appeal before a trial in the Tribunal. The member’s respective medical certificates have been reinstated by CASA, with minor conditions to ensure the safety of all and the member is back at work doing the job he loves. This decision could have been devastating, on the member and their family. Without his Union, VIPA and their determination to fight for their member and engage Hall Payne Lawyers, the outcome could have been very different.    Get help from an employment lawyer If you’ve received an adverse decision in relation to an employment matter and you feel it is unfair, unreasonable or incorrect, there are often opportunities to appeal that decision. Seeking advice or legal representation early, from a lawyer experienced in employment law or from your union, is crucial. https://www.hallpayne.com.au/blog/rss/blog/2019/december/casa-appeal/ Mon, 16 December 2019 00:00:00 On 22 October 2019, Queensland Parliament passed the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2019 (“the Bill”). The Bill amends sections of the Workers’ Compensation and Rehabilitation Act 2003 (“the WCRA”) to further assist workers to recover from their workplace injuries. Hall Payne Lawyers consider the amendments as a positive development for Queensland workers. The Bill makes various amendments to the WCRA, however, we will focus on the following amendments most relevant to workers. Ongoing rehabilitation/return to work services after cessation of claims Previously, workers were entitled to rehabilitation and/or return to work assistance during their claim or after lodging a common law claim. They were not entitled to these services during the intervening period. It was recognised that this causes an interruption in a worker’s rehabilitation. The amendment to the WCRA now allows an insurer to refer a worker to a rehabilitation/return to work program if their workers’ compensation claim is ceased but they are still unable to work due to their injury. This amendment applies from 30 October 2019 to all workers who have stopped receiving compensation, irrespective of when their claim was ceased. Waiver of six-month time limit to lodge workers’ compensation claims Previously, an injured worker was required to lodge a ’ compensation claim within 6 months of the date their entitlement to compensation arose, generally the date they were first assessed by a doctor.  Naturally, this presented problems for workers who had initially attempted to manage their injuries and continue working after seeking medical treatment for a work injury. The WCRA has been amended to enable an insurer to waive the 6-month time limit and accept an application if the worker is certified as incapacitated and lodges a claim within 20 business days of being assessed with an incapacity for work by a doctor.  This amendment applies to workers’ compensation claims lodged on or after 30 October 2019. Insurers to provide treatment for psychological injuries prior to determination Historically, insurers were only required to fund treatment for psychological injuries after a claim was accepted. This often resulted in delayed treatment for workers with psychological injury.   The amendment requires insurers to take all reasonable steps to provide reasonable support services to workers with psychological injuries prior to the determination of their claim. As it generally takes time for insurers to investigate and determine psychological injury claims, this allows workers to access early intervention treatment with a view to improving recovery prospects. This amendment applies to psychological injuries sustained on or after 30 October 2019. Removing “major” from the definition of psychological injuries Previously, the WCRA required a psychological injury to have arisen out of, or in the course of, employment if the employment was “the major significant contributing factor” to the injury. However, to align Queensland with other jurisdictions in Australia, “major” has been removed. Now, employment need only be “a significant contributing factor” to the development of the psychological injury. This decreases the standard a worker must meet to claim compensation for psychological injury. This amendment takes effect for injuries sustained on or after 30 October 2019 only. For injuries sustained before this date, the “the major significant contributing factor” definition still applies. Expressions of regret by the employer Employers had previously been hesitant to provide workers with a sincere apology following a work-related injury, fearing it would be interpreted as an admission of liability. The amendment allows apologies to be on a “without prejudice” basis which means they cannot be considered in any assessment of whether an employer has been negligent. This amendment takes effect from 30 October 2019 . The above is a brief analysis of the key amendments to the WCRA. The amendments will hopefully provide a more positive claims experience for Queenslanders injured at work. The content of this article relates to the Queensland state-based workers compensation scheme. https://www.hallpayne.com.au/blog/rss/blog/2019/december/qld-workers-comp-changes-2019/ Mon, 09 December 2019 00:00:00 A lot of workplaces permit, or even encourage, use of social media in work time. But as a recent case involving a WBBL cricketer demonstrates, social media use at work or about work can have negative consequences for workers. The suspension of Hobart Hurricanes wicketkeeper, Emily Smith for three months after a single post to Instagram showing a team line-up prior to a game, is a timely reminder for employees to consider any ramifications from social media use in the workplace. While Smith’s post was intended to be light-hearted, her employer, Cricket Australia, ultimately found that she had breached Article 2.3.2 of its anti-corruption code and handed out a heavy penalty. Article 2.3.2 of the code prohibits: “Disclosing inside information to any person (with or without reward) where the participant knew or might reasonably have known that such disclosure might lead to the information being used in relation to betting in relation to any match or event”. While the experiences of top-level cricketers might seem a long way from your average workplace, there are lessons for all workers about social media use in the workplace. Like Cricket Australia, many employers have policies about social media. Workers should be aware of and understand those policies if they intend to use social media, including outside work time. Social media use in the workplace Some workplaces allow workers to use social media in the workplace but many have restrictions on the timing, frequency or type of use for a range of reasons. In Smith’s case, a light-hearted shot from the team dressing room had a profound effect on Ms Smith’s Career! Many employers have a prohibition of “excessive” social media use (such as using social media excessively, or at all) or a ban on using social media during safety-critical times or tasks. In our view, the law has fallen behind contemporary social norms in the way it treats social media posts. Be that as it may, at the moment you can get into real trouble if you are not careful with what you post on social media. Understanding when and how your employer permits social media to be used in the workplace is important if workers want to avoid breaching policies, even unintentionally, that could lead to disciplinary action including the potential for dismissal. Protecting confidential information Workers handling confidential information will likely be subject to policies and procedures designed to protect that confidential information which belongs to the company or clients or customers. In Smith’s case, the disclosure of a team line-up prior to its announcement appears to have been in breach Cricket Australia Code. When posting on social media at work, workers should be wary of the risks of inadvertently disclosing information which might be confidential. This kind of information might include: worker, client or customer names or contact details; information which may amount to trade secrets or intellectual property of the employer; or information which may be critical to workplace safety or security. The best way for workers to stay on the right side of their obligations is to have a good understanding of their employer’s policies around social media use and confidentiality. Social media use outside of work Your social media behaviour outside of work can also impact your job. There are numerous cases of employees being sacked for comments they have made about their bosses, colleagues or the company they work for. Banter that at the pub on a Friday after work would just be usual venting, when posted on social media can result in losing your job. In certain circumstances, posts or messages made outside of work time can create problems for workers. This might include: posts detailing confidential work information; posts about your workplace that could be disparaging or damaging to the employer’s reputation; and posts about work colleagues, bosses or managers that are unfavourable or could even constitute bullying, harassment or discrimination . In certain circumstances, even posts made outside of work time which have nothing to do with your employment might breach a social media policy or code of conduct. These can include posts or messages which might offend other people, be abusive, threatening or discriminatory. What can you do to stay out of trouble? There are a number of things you can do to make sure your posts don’t get you into trouble. Read your employer’s social media policy (if they have one); Place a statement on your social media page that the page expresses your private views, not those of your employer; Make sure you have tight privacy settings on your social media page so that it can only be viewed by friends and family; Think before you post! Save a tweet/post in draft, sleep on it and see if you think it is a good idea in the morning; Don’t post while affected by drugs or alcohol. Really, this is almost always bad and never as funny as it seems at the time. Accused of a breach of your employer’s social media policy? How to respond Breaches of work social media policies can have serious consequences including, in some cases, termination of employment . If you are accused of a breach of this kind, you should be wary of the potential consequences when responding. For advice and assistance in responding to a workplace allegation of inappropriate conduct, contact one of our employment lawyers. Terminated, demoted or sanctioned for a breach of policy? In many cases, workers unfairly terminated from their employment will have rights under unfair dismissal laws , as well as other protections included in the Fair Work Act and discrimination legislation. Workers may have additional rights under their contract of employment, Award or Enterprise Agreement. In cases involving termination of employment, strict limitation periods as short as 21 days can apply. For advice and assistance in responding to a workplace allegation, contact one of our employment lawyers . There may also be protections where a worker who is unfairly sanctioned in other ways (such as formal warnings, loss of overtime or demotion) can seek review of this decision.   In summary: know your rights! Social media use at work and outside of work can get you into serious trouble. Given the popularity of social media and the consequences it can have, understanding your employer’s policies or codes of conduct and knowing your rights at work are arguably more important than ever. Get help from an employment lawyer  For advice on how to deal with these important issues or any other employment-related issues, contact Hall Payne Lawyers for advice or representation . https://www.hallpayne.com.au/blog/rss/blog/2019/december/social-media-at-work/ Mon, 02 December 2019 00:00:00 Many people believe that workers can only make compensation claims for work-related physical injuries . However, there are growing numbers of claims submitted for work-related psychological injuries. These cases are more onerous and have different requirements to claims for physical injuries. There is also an exclusion, referred to as “reasonable management action taken in a reasonable way” , which can be used to reject psychological injury claims.  What’s the test? Employers must ensure, so far as is reasonably practicable, the health and safety of workers. Queensland workers’ compensation law can be complicated, especially when it comes to psychological injuries. Unfortunately, a high number of compensation claims for psychological injuries are rejected in the first instance. It is not enough to prove that a psychological injury occurred at work; presently, an injured worker must also establish that the work-related incident (or incidents) was “a significant contributing factor” to the psychological injury. Often, determination of whether a work incident is “a significant contributing factor” is based on the opinion of a treating practitioner (e.g. treating psychiatrist). A significant change to the definition of psychological injury came into effect 30 October 2019 in Queensland Prior to October 2019, the definition of psychological injury required employment to be “ the major significant contributing factor” . On 22 October 2019, the Queensland Parliament passed the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2019 (“the Bill”). The Bill amends the definition of psychological injuries by removing “major” . Therefore, the definition has been amended to require employment to be “a significant contributing factor” to the development of the psychological injury. This significantly decreases the standard a worker must meet to claim compensation. This amendment took effect on 30 October 2019 and, therefore, only applies to psychological injuries sustained after this date. Psychological injuries sustained before 30 October 2019 must meet “the major significant contributing factor” definition. However, even if a treating practitioner states that the work incident was “the major significant contributing factor” or “a significant contributing factor” to the injury, the claim may be rejected because the incident constitutes “reasonable management action taken in a reasonable way ” . What is “reasonable management action taken in a reasonable way” ? “Reasonable management action taken in a reasonable way” is an exclusion often relied on by insurers to reject claims for psychological injury. This exclusion only applies to work-related psychological injuries and can be applied when: the incident/s constituted “management action” ; this “management action” was reasonable; and this “reasonable management action” was carried out in a “reasonable way” . The test for whether an incident involves “reasonable management action taken in a reasonable way” is an objective one. That is, would a reasonable person (i.e. not the employer or injured worker), after considering all the relevant facts, consider the management action reasonable? The legislation provides specific examples of actions that may constitute reasonable management actions taken in a reasonable way, for example: action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker; or a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker’s employment. Cases have clearly determined that the “management action” does not have to be perfect, only reasonable. Unfortunately, this means that the exclusion is broad and can be applied unfavourably for many injured workers. What do I do if my workers' compensation claim is rejected? If your claim is rejected, you can lodge a review with the Queensland Workers’ Compensation Regulator. This review must be lodged within 3 months of the date you receive the decision to reject your claim. If your claim is rejected, legal arguments can be submitted, arguing that your injury was not caused by “reasonable management action taken in a reasonable way” . These arguments will depend on the facts of each case, but can include:  the incident/s did not arise as a result of management action; the “management action” was unreasonable; or the “reasonable management action” was not carried out in a “reasonable way” . In cases where the injury was caused by multiple factors, the matter can be complicated. Courts take a “global approach” by weighing up all events linked to the cause of injury before determining whether, on balance, those factors constitute “reasonable management action taken in a reasonable way” . Conclusion Psychological injury claims can often be long, complicated, confusing and emotional. If you have sustained a work-related psychological injury, we strongly encourage you to seek legal advice. Hall Payne Lawyers can assist you by: assessing your situation to determine the best course of action; providing advice if your claim is rejected, and the possible arguments available on Review; and facilitating conciliation and appeal proceedings through the Queensland Industrial Relations Commission and Industrial Court. Get help from a worker's compensation lawyer  Always see your treating general practitioner in the first instance; they know you best. If you are the victim of bullying or harassment, always document incidents in a diary with the date, time, specific details of the incident and name witnesses (if possible). Always complete a workplace injury incident form as soon as possible after an incident. Inform your manager or workplace health and safety advisor and consult your Union or lawyer .   This article relates to workers compensation claims in Queensland. https://www.hallpayne.com.au/blog/rss/blog/2019/november/workcover-qld-psychological-claims/ Tue, 26 November 2019 00:00:00 Sham contracting is a term used to describe the situation where a worker is engaged by a company as an independent contractor when in fact, they should be engaged as an employee. The Australian Bureau of Statistics confirmed that as at August 2018 approximately 8% of the people employed in Australia were classified as Independent Contractors. The prevalent engagement of independent contractors in a number of industries (e.g. construction, support services, IT) means that it is now necessary for many workers to have a basic understanding of the difference between being an employee and being an independent contractor.     Independent contractor vs employee The determination of whether you are an employee or an independent contractor is not a straightforward matter. Rather, an assessment is to be made on an individual’s circumstances. The two types of engagement are starkly different in a number of key areas, for example: Control of work : Independent contractors are ordinarily largely autonomous and have a high level of control in the performance of their work. Employees perform work under the direction and control of their employer. Performance of work : Independent contractors are not restricted to one engagement and have the freedom to sub-contract or delegate their work. Employees perform work only for their employer. Risk : Independent contractors assume the responsibility and risk of their own work. Payment: Independent contractors are often paid according to task completion and as a result of the provision of an invoice citing their ABN. Employees receive wages on the basis of their time worked. There are a number of other indicators that can be considered when assessing the employment relationship. The Fair Work Ombudsman has helpfully set out a number of these indicators which can be accessed here . What is sham contracting? Sham contracting is the well-known term for the prohibitions in the Fair Work Act 2009 (Cth). Particularly, a person or company is prohibited from: misrepresenting an employment relationship as a contract for services where a person performs work as an independent contractor – section 357; dismissing an employee in order to engage the person as an independent contractor to perform the same, or substantially the same, work – section 358; and knowingly making a false statement to persuade or influence an employee to become an independent contractor – section 359. Misclassification of employees as independent contractors Whilst the actions of an employer may not satisfy the intentional element of the ‘sham contracting’ probations, the misclassification of employees as independent contractors can potentially lead to other contraventions of the Fair Work Act 2009 (Cth), including contravention of the National Employment Standards, modern awards or enterprise agreements. Misclassifications can have a significant financial impact on a person, particularly if the misclassification has occurred for a lengthy period of time. For example, loss of leave entitlements, notice of termination entitlements and a range of other benefits. Case study In Fair Work Ombudsman v Jooine (Investment) Pty Ltd [2014] FCCA 2144 , a person was engaged to perform cleaning duties and was told that he could not be paid unless he had an ABN. The court found that the person was in an employment relationship as he: responded to an advertisement for a position by the company; had no prior experience in running his own business; was provided with two days on the job supervised training; was provided with all the products with which he was required to carry out his duties; was required to wear a company uniform with the company logo; had his work controlled by the employer who carried out on-site inspections and provided feedback; and was provided a wage per hour rather than a rate for completion of the work. In addition to the court declaring that the employer had contravened section 357 of the Fair Work Act 2009 (Cth), the court declared that the employer had: contravened a modern award by failing to pay an hourly rate; contravened the National Employment Standards by failing to pay accrued annual leave; and contravened section 323 by not paying an amount payable in relation to the performance of work in full. This is a useful case study to show the kind of potential remedies that are available to workers who have been wrongly engaged as independent contractors. The court will always look to the practical features of the employment relationship rather than the subjective label used by the parties. Get help from an employment lawyer  If you’re engaged as an independent contractor but believe your circumstances mean you should be engaged as an employee, you can seek guidance and assistance from the Hall Payne employment law team . Likewise, if you are being pressured or manipulated into a contractor arrangement you feel is not right, you should seek advice from a lawyer experienced in employment law . You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2019/november/sham-contracting/ Tue, 19 November 2019 00:00:00 When purchasing residential property in Queensland, there is a standard REIQ (Real Estate Institute Queensland) contract used. There is also an option for ‘special conditions’ to be added to that contract. A standard REIQ contract is usually subject to and conditional upon the standard conditions and the standard Finance and Building and Pest Conditions which were agreed to between the buyers and sellers. Special Conditions are usually agreed to between the parties prior to signing the contract. Special conditions in your purchase/sale contract designed to provide certainty and protection These additional conditions or clauses in the contract are included to provide a party more certainty, protection and peace of mind when entering into a residential property transaction to either purchase or sell a property. For example, if Sam were to purchase a new home for her family in a residential estate and she currently has an English Bulldog, she would want to make sure that 6 or 12 months down the track she won’t receive a notice from the Body Corporate informing her that she has not had approval for her family pet and will not be allowed to keep it in the estate. Therefore, the importance of having a Special Condition for approval of pets is fundamental as Sam would probably not have purchased the home in the first place if she knew she wouldn’t be able to keep a dog on the premises. Special Conditions can range from a usual due diligence clause to ensuring the seller cleans the property prior to settlement and not to mention obtaining body corporate approval for your much-loved pets as the above example shows. We’ve drafted a variety of special conditions or clauses for you to use when preparing a Contract for Residential sale or purchase. The example clauses provided below should be used as a guide only and cover a variety of different circumstances which may or may not be applicable to your current circumstance. It is always important to obtain legal advice in relation to your specific needs, particularly if there is something you want included in your contract and it is not listed below. Hall Payne no longer provides services in property law and conveyancing If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2019/november/special-conditions-residential-contracts/ Tue, 12 November 2019 00:00:00 Anyone having a Will done (and that should be everybody) should be aware of the potential consequences of leaving an eligible person, namely a spouse, child or dependent either out of the Will or with only a small share. The notion of a ‘moral obligation’ to provide for dependents after death is in constant competition with deciding who you want to leave your worldly possessions to. Leaving a spouse, child or dependent out of a Will The process where an eligible person challenges a deceased’s estate; that is, challenges a Will, is known as a Family Provision Application (FPA). The costs for FPAs are usually taken from the estate. This provides a strong incentive for an executor and named beneficiaries to settle and not litigate and the majority of FPA claims are settled without a court hearing. This can act as an incentive for an eligible person to ‘have a go’ at contesting the Will. What does a spouse, child or dependent have to prove? The Succession Act 1981 requires the person seeking to be granted further or better provision from an estate, to show that adequate provision has not been made from the estate in all the circumstances for their proper maintenance and support.  This is a question of fact and relates to both the needs of the applicant as well as all the circumstances such as: the applicant’s financial position; the size and nature of the estate; the relationship between the applicant and the deceased; and the relationship between the deceased and others who have legitimate claims on the estate. If a court determines adequate provision has not been made, it is important to understand that the applicant will not necessarily get what they have asked for.  It is a claim for adequate provisions, not a claim by a disappointed beneficiary. The court has discretion as to what provision it regards as adequate in all the circumstances of a matter. The applicant’s conduct can lead to losing a challenge to the Will The court can refuse to make provision for an applicant whose character and conduct disentitles her or him, or whose circumstances are such as to make refusal reasonable. The types of conduct likely to be deemed as ‘disentitling’ has changed with a shift in community values.  Adultery by the applicant and renunciation of marital obligations are no longer deemed to be disentitling. Disentitling conduct generally relates to the treatment of the deceased when they were alive. As a consequence, the following matters are not generally disentitling; if the deceased was estranged from their son or daughter but reconciled before they died; different religious views to their child; or a child marrying without the deceased’s consent. Importantly an addiction (for example illicit drugs or alcohol) suffered by the applicant or their possession of a criminal record is unlikely to be deemed disentitling. What behaviour could disentitle an applicant to a share of the estate? Violence towards the deceased that is not explained by reason of a mental illness or qualified by the applicant trying to reconcile the position with the deceased, will likely be considered disentitling. Get help from a Wills & Estate lawyer  The law and procedures surrounding FPAs is complex. Anyone who has an interest in an estate, either as executor, administrator, beneficiary or as a disappointed person who receives less than what they believe is fair or nothing at all when they believe they are entitled to something, should seek legal advice from one of our Wills and Estates lawyers.   There are time limits that must be complied with and delay could be fatal to a claim. https://www.hallpayne.com.au/blog/rss/blog/2019/november/contesting-a-will/ Mon, 04 November 2019 00:00:00 Case Review - Benjamin Legge v Barnardos Australia Benjamin Legge, a foster carer under arrangements with Barnardos Australia (‘ Barnardos ’), contends that he has been subjected to workplace bullying by case managers and other managers at Barnardos Australia. He filed an application in the Fair Work Commission (FWC) seeking orders to stop the bullying. Barnardos denied the allegations and subsequently raised a jurisdictional objection regarding whether Mr Legge was able to bring a stop-bullying application as he was not a “worker”. This case required Commissioner Hampton to determine whether Mr Legge was “a worker” for Barnardos Australia and whether he was able to bring a stop-bullying application under the Fair Work Act 2009 (‘ FW Act’ ). Definition of ‘a worker’ for the purposes of a stop-bullying application To bring a stop-bullying application under the FW Act, a person must be a worker as defined under s7 of the Work Health and Safety Act 2011 (‘ WHS Act’ ). the WHS Act defines a worker as follows: 7 Meaning of worker (1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as: an employee; or a contractor or subcontractor; or an employee of a contractor or subcontractor; or an employee of a labour-hire company who has been assigned to work in the person’s business or undertaking; or an outworker; or an apprentice or trainee; or a student gaining work experience; or a volunteer; or a person of a prescribed class. Commissioner Hampton referred to the case of “ Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others ” which identified two elements: the person must carry out work; and the work must be carried out for a person conducting a business or undertaking (‘ PCBU ’). The applicant arguments Mr Legge contended that he is a worker in the form of a volunteer or alternatively, in the form of a subcontractor or outworker. He highlighted the key differences between foster caring and parenting which included attending case management meetings, reporting to Barnardos, mandatory engagement with the foster care agency and departmental specialists, and transporting children to be in contact with birth parents. Features of a working relationship between Mr Legge and Barnardos were also highlighted by showing that work was performed for Barnardos and that Mr Legge was: recruited, assessed, trained and supervised by Barnardos; required to act in accordance with the Carer Handbook issued by Barnardos; subjected to annual reviews; obligated to communicate travel plans, permitting Barnardos to see the children at all times, and seek approval for ear piercing (of the child); and subjected to further requirements such as a ban on smoking. Mr Legge further outlined matters which indicated an employment relationship, including: an application and assessment process; undertaking investigations; allowing entry to their home to conduct home visits; payment of an allowance per child and reimbursements; seeking permission to travel with the children; and a ban on smoking which is likened to a smoke-free workplace policy. Mr Legge concluded his arguments by indicating that there was a ‘symbiotic relationship’ between Barnardos and himself. This was because Barnardos could not operate at its current capacity without foster carers to perform the work. The respondent arguments Barnardos contended that Mr Legge was neither a volunteer nor an outworker or subcontractor that performed work for Barnardos. The authority for Mr Legge to be a foster carer was provided by the Director-General of the Community Services Directorate of the ACT Government (‘ D-G’ ) and not by Barnardos. Barnardos argued that there was no employment contract between the parties as the elements of ‘intention to create legal relations’ and ‘consideration’ could not be established. In relation to the first element (‘intention to create legal relations’), it was argued that Barnardos’ involvement with Mr Legge ‘is properly understood as part of a statutory context under the Children and Young Persons Act 2008 (ACT) (‘ CYP Act ’) and not as a contractual context’. In relation to the second element (‘consideration’), it was argued that no consideration was provided in exchange for the work performed by Mr Legge. Considerations when determining if Mr Legge was ‘a worker’ The application and process including interviews, background checks, training and reviews are all conducted by Barnardos. A Foster Carer Agreement (‘FC Agreement’) was entered into between the parties and was described as being ‘a working agreement for the provision of foster care services for children and young people placed with Foster Carer (sic)’. The FC Agreement included an internal appeal/complaints process. Various dealings with the staff engaged by Barnardos occurred. Requirements were in place in addition to those approved by the D-G. This was a reference to a smoking ban. Barnardos established and applied some criteria for approval and operational requirements beyond those expressly required by the CYP Act. This provided some important additional context in which the work was performed. Barnardos had the power to decide the nature of the care that the children were to be provided, including determining which foster carer was to be utilised. Mr Legge was covered by the public liability policy of Barnardos. Determination of Commissioner Hampton Commissioner Hampton, in the context of Mr Legge and his relationship with Barnardos, held that: Mr Legge was performing work in his capacity as a volunteer for Barnardos in its role as a PCBU; Mr Legge is a worker within the meaning of s 7(1) of the WHS Act and as a result, is a worker for the purposes of s 789FC(2) of the FW Act; and the matter was to be allocated to a locally-based member of the Fair Work Commission to deal with on the merits, either by way of conciliation or determination. Conclusion Stop bullying applications can be complex as a number of issues need to be considered. If you’re experiencing bullying in the workplace and require advice or assistance, please get in touch with the Hall Payne employment law team . This article was written by Principle in employment law, Luke Forsyth and Research Clerk, Kelvin Lee . https://www.hallpayne.com.au/blog/rss/blog/2019/october/volunteer-deemed-worker-in-bullying-case/ Mon, 28 October 2019 00:00:00 The Northern Territory Parliament is proposing to introduce industrial manslaughter laws which could see the prosecution of individuals and/or corporations found to be responsible for the death of an employee at work.  Industrial manslaughter, in jurisdictions where it is currently a crime, usually has a much broader scope than manslaughter under criminal law. The crime of industrial manslaughter would become law as part of the  Work Health and Safety (National Uniform Legislation) Amendment Bill 2019 (“the Bill”). These reforms mean the Territory would be joining Queensland and the ACT as the only two jurisdictions who currently have industrial manslaughter laws in place. Victoria and Western Australia have announced or discussed similar plans to implement these laws in the future. Current penalty The legal response to worksite deaths varies across each State and Territory. In the Northern Territory currently, a person can only be charged with manslaughter under the Criminal Code which is not specific to workplace incidents and there is no manslaughter penalty for corporations at all. Proposed reforms The proposed Bill would create a definition for industrial manslaughter under section 34B of the Act. The proposed laws would give power to the local workplace regulator, with the consent of the Director of Public Prosecutions (DPP), to bring criminal proceedings against individuals and corporations who are in breach. This is different from criminal manslaughter in that corporations cannot be charged with criminal manslaughter. Penalties can include imprisonment for life and significant fines for corporations. What does this mean for workers and workplaces in the Northern Territory? Every worker, regardless of where in the country they are, has the right to return home safely from work. According to Safe Work Australia, the Northern Territory has by some margin, the highest rate of work-related fatalities per capita. Unions have been pushing for some time for industrial manslaughter laws to be passed to address the alarmingly high rate of serious incidents in workplaces. The proposed reforms will affect employees and employers in all corners of the Territory. The reasoning behind these laws is to create accountability for employers to not shirk workplace safety by taking cost and time cutting measures, especially in high-risk industries. It is hoped the reforms will lead to a change in attitude and behaviour from employers to ensure they are prioritising their health and safety duties and obligations, leading to a safer workplace. In Queensland, the industrial manslaughter laws were brought in response to two deaths at Eagle Farm Racecourse and the deaths of four visitors at Dreamworld in 2016. In the ACT who were the first to introduce industrial manslaughter offences, a company or individual can be guilty of an offence where a poor company safety culture contributed to a death. Whilst there are some questions concerning how effective these laws are at preventing deaths, anything that acts as a deterrent for employers to cut corners and thus improve safety standards and reduce the risks of these tragedies is a win for workers. Conclusion Hall Payne Lawyers Northern Territory and across the country support the implementation of these laws and is currently assisting the relevant Unions in the Territory in advocating for the laws to be as strong as possible. With a Parliamentary Committee to table a report on the issue by the end of November, it is expected the laws will be passed in the Northern Territory by the end of 2019. Hall Payne Lawyers can assist any person or advocacy group who has concerns about breaches of health and safety laws at their workplace or any other issues related to employment law and NT workplace injury laws . https://www.hallpayne.com.au/blog/rss/blog/2019/october/industrial-manslaughter-nt/ Tue, 22 October 2019 00:00:00 Annual leave is one of the oldest entitlements available to employees. Paid annual leave dates back to 1935 when employees with the Printers Union successfully fought for one week of paid leave per year. It is fair to say that times have changed since 1935 – now annual leave entitlements apply to the majority of the workforce and in 2009, annual leave was enshrined in the National Employment Standards (NES) as one of the 10 minimum entitlements available to employees. However, there is still a degree of variation in annual leave entitlements, depending on the terms of the applicable award, enterprise agreement, or even the terms of an individual’s contract of employment. In this post, we set out to answer some of the common questions regarding annual leave entitlements for employees in the federal system in Australia. What are my annual leave entitlements? Under the NES, employees (other than casual employees) working 38 hours per week, are entitled to 4 weeks of paid annual leave per year. Employees who are classified as ‘shift workers’ under the Fair Work Act 2009 (the Act) are entitled to 5 weeks of paid annual leave per year. Importantly, in the recent Federal Court decision in the matter of Workpac v Skene [2018] FCAFC 131 , the Full Court of the Federal Court confirmed that paid annual leave under the Act is an entitlement afforded to all employees other than casual employees. The decision in Skene cast the entitlement to annual leave in a broad light and confirmed that it is not so much what you are that gives you an entitlement to annual leave, but what you are not. That is, you don’t have to prove that you are a permanent employee, you simply have to prove that you are ‘something other than a casual employee’. Unfortunately for employees who are engaged, paid and work as casual employees, there is no entitlement to paid annual leave under the NES. Can I be sacked while on annual leave? Yes, you can still be sacked when you are on annual leave provided that the reasons for your dismissal are unrelated to your taking annual leave. If your dismissal while on annual leave is nothing more than a coincidence, then the dismissal is not unlawful just because it occurred while you were on annual leave. Terminating an employee while they are on annual leave can, however, have a bearing on the notice period required to be provided. This issue may be raised in the course of an unfair dismissal proceeding if it has a bearing on: whether the employee was provided with an opportunity to respond to the reasons for termination; the harshness of the termination; or whether an extension of time should be granted (if the application was made outside the required timeframe due to the employee’s leave). Can my employer force me to take annual leave? Generally, annual leave should be taken by agreement and at a time that is mutually convenient to both the employee and the employer. Under s.88 of the Act, the employer cannot unreasonably refuse an employee's request to take paid annual leave however, an employer may refuse a leave request if genuine operational requirements underpin the refusal. Under s.94(5) of the Act, an employer may direct an employee to take a period of annual leave (but only if the direction is lawful and reasonable). A reasonable direction to take annual leave may arise in circumstances where the employee has accrued an excessive amount of annual leave (for example, over 8 weeks of annual leave) or where the employer's business is being shut down for a period (for example, between Christmas and New Year). Can I cash out my annual leave? If you are not covered by an award or an agreement, you can reach an agreement with your employer to the effect that your annual leave entitlements are paid to you without you taking leave (aka ‘cashing out’ annual leave). However, each agreement to cash out a particular amount of paid annual leave must be a separate agreement, in writing, and the employer and employee must not agree to cash out annual leave if the result would leave the employee with less than four weeks leave accrued. If a portion of your annual leave is cashed out, the employer must pay you the full amount that would have been payable if you had taken the leave. If you are covered by an award or an agreement, there may be clauses in these instruments that set out the steps that need to be followed when cashing out annual leave. If there is no clause in your award or agreement that permits the cashing out of annual leave, then you will not be able to cash out your leave. Should I be paid leave loading? There is no entitlement to be paid leave loading (typically an amount of 17.5%) under the Act . An entitlement to leave loading may be found in the applicable award or agreement, or the employee's contract of employment. In order to determine if you are entitled to leave loading, you will need to check the relevant award or enterprise agreement, and your employment contract. Can I buy annual leave? There is no express right to purchase additional leave if your statutory entitlements have been exhausted. That said, some employers are willing to enter into arrangements with their employees where: additional leave can be purchased; an employee may be permitted to take unpaid leave or leave at half-pay; or in certain circumstances, the employee may be permitted to overdraw their leave balance. What happens to my accrued annual leave if I am sacked or I resign? If you are sacked or resign, the employer is required to pay you your accrued but untaken annual leave entitlements. These payments should be processed as soon as possible after your employment ends, but no later than one month after the employment ends. Get help from an employment lawyer If you believe your annual leave rights and entitlements are not being met by your employer or you have any other employment law concerns, you should contact one of our employment lawyers . https://www.hallpayne.com.au/blog/rss/blog/2019/october/annual-leave-entitlements/ Tue, 08 October 2019 00:00:00 What is a Caveat? A caveat is a registered notice on a land title that will prevent the property from being sold or mortgaged until the caveat is withdrawn, lapsed or cancelled. In Queensland, caveats are lodged with the Titles Office and for family law purposes, are dealt with under the Land Title Act 1994 (Qld) rather than a specific section of the Family Law Act (1975). Who can lodge a caveat? Section 121 of the Land Title Act (1994) deals with who can lodge a caveat. Just because you are married or in a de facto relationship with the registered owner, doesn’t automatically give you a right to put a caveat on a property. It must be proved that you have an ‘equitable interest’ in the property if you wish to put a caveat on it. An equitable interest may be proved by your contributions to the property during the relationship. Using caveats to protect your interests in family law proceedings Where the property is owned in joint names In most circumstances, a family home will be owned in joint names and therefore, lodging a caveat may just be an unnecessary expense since your former partner won’t be able to sell or mortgage the family home without you signing the relevant transfer or mortgage documents unless they were to commit fraud. Where the property is owned in one party’s name only On the other hand, if your former partner has held the family home in their sole name or has other investment property in their sole name, depending on all the circumstances, it may be prudent to lodge a caveat over a property to protect your financial interests. This is because there is nothing to prevent your ex from selling what is probably one of the most valuable assets in the property pool. If this were to occur and depending on when you became aware of it, your ex could potentially have spent the proceeds from the sale as and how they wished. However, if you found out prior to settlement, you could instruct your lawyer to make an urgent application to the court for the funds from the sale to be held in a solicitor’s trust account.  Sale proceeds do not always form part of the property pool The sale proceeds may not necessarily form part of the property pool as recent case studies demonstrate that a court is less inclined to ‘add back’ money spent by one party especially if it is not unreasonably spent. Rather, it is more likely they will assess it as a negative contribution post-relationship.   Of course, if this scenario were to occur, it would be an issue that would have to be determined by the court at a final hearing. However, very few cases reach that stage and it will be an expensive process to get there. It is for this reason, that most litigants would advise their clients to lodge a caveat over their former partner’s property. Get legal advice early if you think your ex is about to sell property If you are aware your former partner has intentions of selling a property which you have an equitable interest in but where you are not a registered owner, we strongly advise you to seek immediate legal advice that takes into account your unique circumstances. However, lodging a caveat may not be the most appropriate course of action when considering your specific circumstances and there may be better solutions to protect your interests. For example, if your former partner has an interested purchaser for their investment property and neither of you wish to retain that property, it may be wise for the parties to agree to sell the property and retain the proceeds of the sale in a trust account of the conveyancing solicitor until the family law property settlement is finalised. Applying for an interim order preventing one party from dealing with a particular asset, of their own accord and without the input or consent of the other party may also be sought from the court. The effect of such an order would allow a party to lodge a non-lapsing caveat over the real property (real estate). A non-lapsing caveat is a caveat which does not lapse and will remain on the title deed until it is withdrawn, cancelled or ordered by the court. It is also possible to apply for interim orders for assets you wish to protect in your family law dispute which are not real property; for example, a term deposit, expensive artwork, vintage motor vehicles, shares etc. Lodging a caveat is one option but not necessarily the only option Ultimately, lodging a caveat may or may not be the best course of action in family law proceedings. The best course of action is highly dependent on your personal circumstances and it is strongly advised that you seek legal advice as soon as you are aware that your former partner has an intention to dispose of any particularly valuable asset. Finally, in order to correctly preserve your rights to a property through a caveat, it is best to have a qualified legal professional assist you with drafting and lodging the relevant documents to the Land Titles Registry.   Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2019/october/family-law-caveats/ Tue, 01 October 2019 00:00:00 Under the National Employment Standards (‘NES’) in the Fair Work Act 2009 , Australian workers in the private sector employed on a full-time or part-time basis, are entitled to paid ‘personal/carer’s leave’. This leave entitlement is commonly referred to as ‘sick leave’. This article does not deal with the leave entitlements of employees who do not work under the NES, for example state government employees. What sick leave entitlements do employees have? A full-time employee accrues 10 days sick leave per year and a part-time employee will accrue leave on a pro-rata basis, calculated based on how many hours they work per week. The leave accrues progressively each year, such that any unused leave in one year can be used in later years. Casual workers are not entitled to any sick and carer’s leave under the NES. There are many different scenarios where your sick leave entitlement could run out while you are still sick. How can I take more time off work if I have run out of sick leave? Eligible employees are entitled to 10 days ‘ paid’ sick leave per year. Under the NES, they have other paid leave entitlements such as annual leave and long service leave. If you’ve exhausted all your sick leave entitlements, then you may be able to take other types of paid leave available under the NES, an Award or an enterprise agreement. If you have exhausted all your paid leave entitlements, you may be able to take unpaid personal leave, which you are entitled to do if you support your absence with reasonable medical evidence. Finally, you can seek your employer’s consent to taking approved unpaid leave for a certain period. Will my employment be jeopardised if I take too much time off due to illness? When you have to miss work because of non-work-related illness or injury, you need to let your employer know as soon as possible. You must provide evidence of your illness or injury, if requested and let your employer know how much time you think you need off. An employee is entitled to take as much accumulated paid sick leave as they have available, without any threat of termination of employment.   However, if you are forced to take a period of unpaid personal leave on top of any of your available paid sick leave, there are restrictions as to how long you can be absent from work. Protections also apply under the Fair Work Act 2009. If you are absent on personal leave for less than 3 consecutive months or a total of less than 3 months over a 12-month period, you are automatically protected from dismissal for the reason of your injury or illness. If you are absent for longer, you do not have those protections. Your employer cannot ‘automatically’ sack you if you take extended sick leave If you are absent from work, due to injury or illness, in excess of the three months over a 12-month period, this does not mean an employer has an automatic right to dismiss you. Laws relating to unfair dismissal , general protections and even state and territory anti-discrimination laws still apply. What about casual workers? As casual workers are not entitled to paid personal/carer’s leave, they are not specifically protected from dismissal for extended periods of absence. However, this does not mean a casual worker cannot have genuine absences from work when sick. Casuals too, may still have access to unfair dismissal, general protections and anti-discrimination laws in the workplace like other employees. Get help from an employment lawyer If you’re on extended sick leave and concerned about your job security, we recommend you seek advice from a lawyer experienced in employment law . At Hall Payne, we are award-winning employment lawyers . You can contact any one of our offices for advice or assistance. https://www.hallpayne.com.au/blog/rss/blog/2019/september/no-sick-leave-left/ Mon, 23 September 2019 00:00:00 If someone is terminated from their employment and they believe the termination was unfair, there are a number of options available for them to challenge the legality and validity of their termination. The most common alternative is an unfair dismissal claim. In Australia, there are two main options for challenging an unfair termination of employment: Where there has been breach of contract, the worker can commence a common law action in an eligible Court; or The worker can make a statutory claim for unfair dismissal in the Fair Work Commission or one of the State Industrial Commissions, for example, the Queensland Industrial Relations Commission (depending on the employer). As a statutory claim for unfair dismissal is commonly the quickest and most cost effective and most workers in Australia are within the federal jurisdiction, this blog explores the option of bringing an unfair dismissal claim under the Fair Work Act 2009 (Cth) ( FW Act ). Who is protected from an unfair dismissal under the FW Act? To be entitled to lodge an unfair dismissal claim under the FW Act, the worker must have been an employee of a national system employer. Broadly speaking, a national system employer includes, but is not limited to, private enterprise employers and Commonwealth authorities. An example of a national system employer would be a mining and resources company or a private hospital. An example of a Commonwealth authority is the Australian Tax Office or the Australian Federal Police. State and local government employers are not national system employers; for example, Queensland Health or the Queensland Police Service employees cannot lodge an unfair dismissal claim under the FW Act. A national system employee will be protected by the FW Act unfair dismissal laws provided they can satisfy the following main requirements: the employee has completed the minimum period of employment which is 6 months, or where the employee worked for a small business employer, 12 months. ; and the employee is covered by a modern award or enterprise agreement or otherwise earns less than the high-income threshold (which is currently $148,700 per year ); if they are a casual employee, that the employee has worked on a regular and systematic basis with a reasonable expectation of ongoing work; and the employee has been dismissed, significantly demoted or forced to resign. Determining if there been a dismissal The FW Act provides that an employee will have been dismissed where: the employee’s employment was terminated at the initiative of the employer; i.e. the employer exercised their power to terminate the employee; the employee was ‘forced’ to resign because of the employer’s conduct, otherwise known as a constructive dismissal . Pressuring an employee to resign or be sacked is an example of a situation where an employee was forced to resign; or the employee has been demoted and suffered a significant reduction in his or her remuneration or duties. The dismissal must have been clearly communicated to the employee and this includes being communicated orally (note however that s.117 of the Fair Work Act , which is in the NES , requires a notice of termination to be given in writing). Was the dismissal unfair? Providing that an employee can satisfy the Fair Work Commission ( FWC ) that they are protected by the unfair dismissal laws and they have been dismissed, the FWC then makes a determination as to whether the employees’ dismissal was unfair. To do this, the FWC examines each dismissal on a case by case basis and in doing so considers the following questions: Was the dismissal harsh, unjust or unreasonable? Was the dismissal inconsistent with the Small Business Fair Dismissal Code? Was the dismissal a case of genuine redundancy? Was the dismissal harsh, unjust or unreasonable?  There is no hard and fast rule as to what constitutes a harsh, unfair or unreasonable dismissal. Each dismissal is different and accordingly, the surrounding circumstances will be considered by the Commission. However, broadly speaking, the common factors which the FWC take into account when determining the question of harsh, unjust or unreasonable include: Was there a valid reason for the dismissal which was related to the employee’s capacity or conduct? Examples of a valid reason include: assaulting or fighting with a co-worker; unauthorised access to a co-worker’s emails or computer; leaking confidential documents of the employer; breach of a workplace health and safety procedure; and misappropriation of funds. Was the employee notified of the valid reason and given an opportunity to respond? A valid reason may have existed for terminating an employee however the termination may be deemed unfair if the employee was denied procedural fairness. This includes the opportunity to respond to the reasons for termination before any decision is made. For example, a baggage handler who is dismissed for stealing from passenger bags but was not shown the evidence until 5 months post termination. Had the employee received previous warnings if the dismissal is about their unsatisfactory performance? Was the employee unreasonably refused access to a support person in any discussions relating to their dismissal ? The size of the employer’s business and/or absence of a dedicated human resources management specialist will also be considered. The FWC has determined that I was unfairly dismissed. What can the FWC order my former employer to do? Before deciding to lodge an unfair dismissal application, you should think carefully about what remedy you would consider appropriate and the reasons why. Reinstatement of employment The FWC may order a person’s reinstatement. This is the primary remedy however in practice, an order of payment of compensation is more common. Reinstatement must be considered by the Commission first and if reinstatement is ordered, the employee must be reinstated to the same position or another position on terms no less favorable than their previous position. Compensation for lost wages can also be ordered. Compensation A payment of compensation will be ordered where an order of reinstatement is considered to be not appropriate due to the breakdown of trust and confidence in the employer-employee relationship. Where the FWC orders payment of compensation, the compensation is designed to compensate the employee in lieu of reinstatement for income loss reasonably attributable to the unfair dismissal. In determining the amount of compensation, the FWC considers a number of factors including: the effect of such on order on the viability of the employer’s business; the length of the employee’s service; and the wages lost as a result of the dismissal. It is important to remember that compensation is not awarded for ‘shock, distress or humiliation’. Compensation will usually be limited to the income lost by an employee because of the dismissal. For example, if an employee was unemployed for two weeks and then obtained new employment at the same or better pay, the loss will be limited to two weeks. The sum of compensation is also capped at the total amount of remuneration either received by the person, or which they would have been entitled to receive, for any period of employment (with the employer who dismissed them) during the 6 months immediately before the dismissal. The compensation also cannot exceed half the amount of the high income threshold immediately before the dismissal. Is compensation available for every unfair dismissal? The power of the FWC to award compensation is discretionary. Even if you are successful in your unfair dismissal claim, the grant of compensation is not automatic. So, where to from here? For a national system employee, you lodge your unfair dismissal application with the FWC. If you are not a national system employee and you were employed in Queensland for example, you lodge your unfair dismissal complaint application with the Queensland Industrial Relations Commission. This will differ for other states and territories of Australia and you should seek legal advice relative to your location . Strict time limits apply BUT REMEMBER! For all unfair dismissal complaint applications, you must lodge your application within 21 days of the dismissal taking effect . Have you been dismissed and you think it is unfair? It’s important to act fast. You should seek urgent advice from a lawyer experienced in employment law. You can contact our employment law team for further advice or assistance . https://www.hallpayne.com.au/blog/rss/blog/2019/september/unfair-dismissal-options/ Tue, 17 September 2019 00:00:00 With the recent Powerball jackpot of $110 million on 18 July 2019, creating the largest ever Division 1 prize pool in Australia’s history a colleague asked how winning the lottery might affect family law property settlement. Does the winner have to share their lottery winnings with their ex? Generally, the winnings from a lottery ticket will constitute part of the parties’ property pool. What is contentious is the contributions each party made to purchasing the winning ticket at the time and the subsequent percentage split of the property pool after the win. There are three notable family law cases that deal with lottery winnings in Australia 1.   Zyk & Zyk In 1995 The Family Courts changed their view on how lottery winnings were considered by the Courts. Prior to the case of Zyk & Zyk [1995] , lottery winnings were viewed as a “ bonus ” or “ windfall ” and may or may not be warranted for an adjustment to the property pool. However, in the Zyk case, the Full Court of the Family Court changed their position and noted that lottery winnings should be viewed as a contribution. The case surrounds the husband’s lottery win of $95,000. The win came from a syndicate the husband was part of prior to the marriage and no involvement from the wife. However, the court found that it was part of the husband’s general practice to hand over all his money to the wife who had control of the family’s finances and upon handing the monies to the wife, she would deal with it so that it formed part of the joint property pool. The lottery tickets were purchased from the husband’s money from time to time. Therefore, the purchase of the ticket had come from the shared joint incomes. The winnings were used by the parties for joint purposes and therefore treated as a joint contribution. 2.  Eufrosin & Eufrosin On the other hand, with the marriage of Eufrosin & Eufrosin , the wife’s winning ticket was purchased after separation had occurred. The husband argued that the purchase of the ticket was from joint funds. The court determined that even if that was the case, it ignored the parties’ post separation lives. The court was satisfied that at the time the ticket was purchased, the parties had been living separate lives including separate financial lives. Ultimately, the court decided that the source of the funds should not determine the issue of how a lottery win is treated. What is considered to be relevant is the nature of the relationship between the parties at the time the lottery ticket was purchased. Therefore, it was held that the husband made no contribution to the lottery winnings. However, as a result of the husband’s greater financial need after separation, an adjustment of $500,0000 was ordered in favour of the husband. 3.  Elford & Elford Elford & Elford [2016] is a recent case dealing with lottery winnings. It is an interesting case due to the following: The winning ticket was purchased by the husband approximately 12 months after the couple’s marriage; The lottery winnings were invested in a low risk term deposit account solely in the husband’s name; The parties lived mostly separate financial lives in the sense that there was no joint account and the husband’s income was used to meet the expenses of the property. The wife’s income was used to support her three children from a previous relationship and purchase food and groceries for the household; The husband was solely responsible for purchasing the ticket. He chose the winning numbers himself using the exact same numbers on a weekly basis and the winning ticket was in his name only The couple separated after 10 years of marriage; and The winnings were worth a million dollars. The court decided it is not only the nature of the parties’ relationship at the time the ticket was purchased that makes this case different; it is also the way the husband and wife conducted their financial affairs after the winnings were received. Ultimately, the court was satisfied that the husband did not intend the purchase of the lottery ticket to be for a joint matrimonial purpose. They were also satisfied that the wife did not have the practical control of the family’s finances. Furthermore, unlike case number 1 above, the husband did not have a habit of providing the wife with all of his income. Therefore, the court decided that the husband was solely responsible for this financial contribution and accordingly ordered the wife would receive 10% of the combined property pool which included the lottery winnings. In summary If a winning lottery ticket was purchased by either party during the relationship, it will most likely be perceived as joint property and treated as such in any property division However, if the parties lived financially separate lives during the relationship and most importantly at the time the lottery ticket was purchased, then the lottery winnings would most likely be considered as a sole contribution by the party who purchased the winning ticket. Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2019/september/lottery-wins-in-family-law/ Tue, 10 September 2019 00:00:00 The workplace can be an environment of stress for some workers. Sometimes workers feel they are being bullied, harassed or victimised by their manager and some develop psychological problems as a result of this. Although they may feel it is bullying behaviour, it may actually be ‘ reasonable management action being carried out in a reasonable manner ’.  Reasonable management action is not considered bullying, if handled in a ‘reasonable manner’, according to the Fair Work Act . For that reason, the question is often of critical importance to any prospective applicant in the anti-bullying jurisdiction of the Fair Work Commission. So, at what point does action by managers go from reasonable management action to bullying behaviour? In answering the question for any given situation, it is useful to break it down into three parts: Was the behaviour management action? Was it reasonable for management to take the action? Was the action carried out in a reasonable manner? Was the behaviour management action? To be considered ‘management action’, it must be more than normal operational instructions which are part of your and your manager’s daily work. It needs to have the essential characteristic of being managerial. Various examples have been found to constitute management action by courts and tribunals over the years. These include: performance appraisals and other meetings addressing underperformance ; and investigations into alleged misconduct and any follow up, counselling or disciplinary action . It may also include: denying benefits in certain circumstances; and lawfully modifying work arrangements ; for example through redeployment . Was it reasonable for management to take that action? If it appears to be ‘management action’, the next step is to ask whether it was reasonable to take that action. In determining reasonableness, it is important to consider the specific circumstances of each case. This will be a question determined on an objective assessment, meaning that the subjective views of the worker or the manager will not be determinative. As a starting point though, the action must be lawful and it must not be irrational, absurd or ridiculous.   Courts and tribunals have also provided some guidance on this point. For example, noting that the question is not whether certain actions could have been more reasonable, but simply whether the action was reasonable in all the circumstances. It will also be relevant if an employer has policies and procedures in place for dealing with certain matters and the management action departs drastically from those procedures. Ultimately however, given that the answer will differ on a case by case basis, this is an issue on which workers should consider seeking advice. Was the action carried out in a reasonable manner? If something is determined to have been both ‘management action’ and ‘reasonable’, it still needs to have been carried out in a reasonable manner. This involves another assessment of the circumstances surrounding the action. Here, a key consideration will be the way in which the worker was impacted by the action. Some relevant factors could include: the particular characteristics of the worker and the situation; whether there have been delays in taking the management action; whether there was a failure to make simple inquiries that could have uncovered relevant facts about the worker; and whether established procedures were followed. What happens next? If the answer to each of these questions is ‘yes’, there may be some difficulty pursuing a bullying-related claim. If the action has caused psychological injury to the worker, there may still be options to pursue a workers’ compensation claim . Eligibility to make a claim will be dependent on a number of further factors specific to commonwealth and state-based workers’ compensation schemes. You should seek legal advice from one of our personal compensation lawyers , about any potential entitlements However, if you believe that action being taken against you is not reasonable management action being carried out in a reasonable manner, you may have employment law options available to you under the Fair Work Act . Applying to the Fair Work Commission for an anti-bullying order in respect of the person carrying out the actions, is one option. If you have resigned due to the action and you believe the action was unreasonable such that it gave you no choice but to resign, you may also have options to lodge a claim for unfair dismissal. Note, strict time limits apply to unfair dismissal claims . Speak with one our employment lawyers for assistance in relation to this.  Personal help for bullying or stress in the workplace? If you are suffering psychological stress in the workplace, we recommend seeking help from your GP or from a service like 'Beyond Blue '. https://www.hallpayne.com.au/blog/rss/blog/2019/september/reasonable-management-action/ Mon, 02 September 2019 00:00:00 Workers compensation claims in Tasmania If you injure yourself at work in Tasmania you're entitled to make a workers compensation claim to cover your wages, medical treatment and other expenses. But what happens if you lodge your claim and then your employer tells you that they don’t have workers compensation insurance? Does an employer have to hold workers compensation insurance? Each state and territory in Australia have laws that provide benefits to injured workers in the event of a workplace injury. Employers by law are required to hold a valid workers compensation insurance policy to cover associated wages and medical costs. For further information about  workers compensation laws in your state, you can click the link here . Am I still protected if my employer has no insurance? These state and territory laws also contain provisions to assist injured workers in circumstances where their employers do not hold valid workers compensation insurance. Each jurisdiction is different and have different safeguards in place. If you lodge a worker’s compensation claim with your employer and are informed that they don’t have a valid insurance policy, you should seek urgent legal advice. In Tasmania, when an employer does not have a valid workers compensation insurance policy and ceases to compensate a worker directly, the nominal insurer can step in and act as the ‘default’ insurer to compensate the worker in certain circumstances. A recent case where the employer had no insurance In the decision of O. v Delta 1 Security Services Pty Ltd t/as NSG Australia [2019] TASWRCT 15 (16 April 2019) , Hall Payne Hobart Associate, Indi Gunadasa represented an injured worker whose employer did not have valid workers compensation insurance at the time of injury. The worker’s employer agreed to pay the worker directly to cover her wages and medical treatment however the employer eventually ceased operation in Tasmania and made no further communication with the worker about future compensation. As a result of the employer’s actions, the worker was left without an income (as she was unable to work) and any ability to receive treatment for her medical condition. Hall Payne filed documentation into the Workers Rehabilitation Compensation Tribunal and made submissions addressing the relevant law about involving and joining the nominal insurer. The Tribunal accepted the submissions and evidence provided on behalf of the worker, stating: …The evidence is that the employer, at a later time, simply stopped meeting its obligations to the worker as imposed upon it by the Act. The employer’s obligations to meet its liabilities under the Act are ongoing. Outcome The Tribunal found in favour of the worker and as a result, agreed to make the following orders: The worker receive backpay in the sum of $25,304.80 for lost payments since the time her payments ceased; The employer pay the outstanding medical bills; The worker continue to receive a weekly wage paid the employer; The worker continue to receive medical treatment paid by the employer; and The nominal insurer step in if the employer fails to do the above. Employer failed to comply with court orders The employer did not comply with the above orders, so the nominal insurer was joined to the workers claim for compensation, back paying the worker, commencing to make weekly payments to cover the worker’s salary and also paying for the workers ongoing medical treatment. Media on this case The decision was published in the Mercury Newspaper (note, this is a paid subscription link) The story can also be viewed on the Mercury’s Facebook page The full court decision and orders can be viewed here . https://www.hallpayne.com.au/blog/rss/blog/2019/august/work-injury-with-no-employer-insurance/ Tue, 27 August 2019 00:00:00 Usually, before we make big decisions, we ensure we are fully informed. Family Law applies the same principles, as set out in Rule 13.04 of the Family Law Rules 2004 or Rule 24.03 Federal Circuit Court Rules 2001 . These principles are referred to collectively, as ‘disclosure’ or your 'duty of disclosure'. Before an offer can be made or even considered between you and your former partner, full and frank disclosure must be completed. Non-disclosure of a material issue which alters a party’s financial position may lead to Orders being set aside on the basis of fraud. The behaviour of deliberate non-disclosure could also be considered contempt of the court which could include a penalty of imprisonment. Duty to disclose You have a duty to provide full and frank disclosure to the other party and the court. Once a party initiates any Family Law proceedings, they will often seek interim Orders for standard disclosure to be made in accordance with ‘Annexure A’ . Annexure A is a standard non-exhaustive list of basic documents which applies to most financial or property cases . It includes documents such as: bank statements’ superannuation statements; payslips; tax returns; and social security payments etc. This means that any information or documents you have in your possession or control, relating to Annexure A, must be disclosed to the other party. What else, besides documents, do I need to disclose? You are required to disclose all information relevant to any issue in your matter. An issue may be your inability to continue your current occupation due to a deterioration in your health. Accordingly, you will have to disclose all information relating to this issue such as medical records, doctors’ letters and so on. Duty of disclosure in Family Law lasts for the duration of your matter In addition, your duty of disclosure is an ‘ongoing’ obligation and does not cease once you have provided your initial disclosure, or the disclosure set out in Annexure A. Your obligation to provide ongoing disclosure ends when the matter ends, either through an agreement between the parties or a decision from a court. Until final orders from the court, the duty of disclosure continues. For example, if you opened a new share trading account recently after you separated and this was funded from your winnings at the races, this account and any balance therein will have to be disclosed to the other side. My former partner has bank accounts he/she didn’t disclose! If disclosure has been provided and you still suspect your former partner has bank accounts they did not disclose, we are able to subpoena their bank statements. The difficulty here lies with knowing which bank to subpoena. There are several smaller banks out there as well and the legal costs associated with drafting court documents, serving the documents and finally inspecting the documents can become prohibitive. In Family Law proceedings a party is only granted 5 subpoenas. If a party wishes to issue more subpoenas, they will have to seek leave from the court to do so. Usually leave will be sought for a further 5 subpoenas. Issuing subpoenas without having somewhat of a genuine belief of which bank the funds might be held in could be an expensive process and we will only advise clients to do so if they are confident that the undisclosed account exists. Prudent and experienced Family Law solicitors will usually draft a clause in the interim or procedural orders to include disclosure of any document which is requested or particularised in writing. Therefore, if you are aware of any undisclosed bank or superannuation accounts, then we are able to request the disclosure be provided without the expense of issuing the subpoena. Do I have to disclose interest in a Family Trust? Yes, interest in a Family Trust or any Trust for that matter is required to be disclosed regardless of whether you are just a trustee, beneficiary, or appointer. Disclosure is required to the extent that even if you are a shareholder or director of a corporation which is the beneficiary of a Trust.   Does disclosure only apply to financial or property cases? No. Disclosure is also required for parenting cases.  Disclosure relevant to parenting matters could include: school reports; information regarding a parent’s work commitments; and medical or expert reports in regards to the child, and so forth. Final Note : You and your solicitors have a positive obligation to provide full and frank disclosure.  If you provide certain disclosure to your solicitors, your solicitors will be ethically bound to disclose that information to the other side, or to the court even if they have not requested that information. Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2019/august/duty-of-disclosure/ Tue, 20 August 2019 00:00:00 The Queensland government recently hosted the Driver Distraction National Summit in Brisbane . Key amongst the ideas discussed at the Summit was the possibility of introducing an increase for on-the-spot fines for drivers caught using their mobile phone while driving. Current penalty for using a mobile phone while driving in Queensland The current maximum penalty for using a mobile phone while driving is $2,669 – see section 300 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) (‘ Regulation ’). Despite this maximum penalty, the general practice is that people are issued with an expiation notice on-the-spot, which can be issued by police officers at the roadside. The current penalty, when issued with an expiation notice for using a mobile phone whilst driving, is a $400 fine and the accrual of 3 demerit points. Proposal to increase the expiation notice penalty Mark Bailey, the Queensland Minister for Transport and Main Roads proposed to the Summit that there be an increase in the expiation notice penalty. He has proposed increasing the penalty to a $1000 fine and the accrual of 3 demerit points. Such a fine, if implemented, would be the highest in Australia. It is also proposed that second-time offenders would receive a license suspension. The Regulation states that the driver of a vehicle ‘must not use a mobile phone that the driver is holding in the driver’s hand while the vehicle is moving, or is stationary but not parked’. ‘Use’ of a mobile is defined very broadly and includes: holding the phone to, or near, the ear, whether or not engaged in a phone call; writing, sending or reading a text message on the phone; turning the phone on or off; and operating any other function of the phone. Most people would be aware that (a) and (b) above constitute illegal use of a mobile phone; however, many people are caught out by (c) and (d). What (c) and (d) mean is that you cannot do the following if it involves touching your phone: answer or reject a call; turn on speakerphone; adjust the volume; access apps (including social media) or other features on your phone; or play, pause or skip music. To satisfy a police officer that you are ‘parked’, you must pull over and come to a complete stop with the handbrake on and the car in park (if automatic) or neutral (if manual). You may be relieved to know that CB radios are not mobile phones for the purpose of the Regulation. Drivers should also be aware that they must not drive a car that has a ‘television receiver or visual display unit’ that is operating while the vehicle is moving, or is stationary but not parked, if any part of the image on the screen is visible to or likely to distract the driver. Although there are exceptions where the visual display is a driver’s aid, such as a GPS unit or a GPS enabled mobile phone, a driver cannot have video chat or a video (e.g. YouTube) running on their phone while driving. This includes passengers. Have you got feedback about the new proposed fines? The Department of Transport and Main Roads is currently seeking feedback regarding the proposed new fines and how to tackle driver distraction. Submissions may be made by email to FocusOnDistractio n@tmr.qld.gov.a u up until 2 August 2019. https://www.hallpayne.com.au/blog/rss/blog/2019/august/mobile-phone-while-driving/ Thu, 01 August 2019 00:00:00 The payment of wages is an essential element of every Australian employment contract. Any worker who is having money deducted from their pay, having pay deductions proposed, or being asked to spend their own money at work, should consider whether the deductions are lawful. Deducting money from a worker’s pay may be unlawful and also amount to an underpayment of wages. Likewise, requiring a worker to spend their own money in order to perform their job may amount to a non-payment or underpayment of wages. The starting point: your wages must be in money, in full and at least monthly Failure to pay wages, or failure to pay wages correctly, is likely to be a breach not only of a contract of employment , but also a breach of the law which may attract significant penalties. The Fair Work Act requires that pay for any work must be made in money and in full. This generally prohibits employers from: paying employees in stock or store credit; paying employees in free services or benefits; or withholding any part of a worker’s pay for an extended period. However, an employer may make deductions from a worker’s salary where a company ordinarily provides a product or service and the worker is provided that service at the same cost as the general public. Examples of this include where an employee works for a health insurer and has their health insurance deducted from their pay, or where a person works for a financial institution and repays a loan via deductions. Any such deduction must be agreed to by the employee. Permitted deductions from wages by agreement between an employer and worker A deduction may be permitted if the employer and an individual worker agree on it. However, the Fair Work Act (‘the Act’) requires that such a deduction is only lawful if it is in writing, and principally for the employee’s benefit. Examples of deductions which might be authorised include: A deduction which is part of a “salary sacrifice” arrangement. Additional superannuation contributions made to a superannuation fund. A deduction for a work “social club” or similar arrangement. Strict rules apply to deductions of this type. Any written agreement has to specify the amount of the deduction and cannot be varied without the permission of the worker. Additionally, a worker who has previously agreed to a deduction of this kind is permitted to withdraw their agreement to a deduction at any time. Permitted deductions from wages by an award, industrial instrument or order of a court In some cases, a Modern Award or Enterprise Agreement may permit a deduction from a worker’s pay.   Examples of deductions which might be permitted under an instrument of this kind include deductions for meals provided during normal working hours or accommodation provided to a worker for employees working in the hospitality industry. However, such deductions are also subject to strict conditions and limits. Employees who are unsure whether deductions of this kind are occurring correctly should consult their Modern Award or Enterprise Agreement, or seek legal advice from one of our employment lawyers . An employer may also make a deduction where ordered by a court. For instance, where a court has imposed a “garnishee order” in relation to a concluded legal process. Prohibited deductions and “unreasonable requirement to spend amount” Certain deductions are not permitted or are specifically excluded, either by an award or by the Fair Work Act . For instance, the Hospitality Industry General Award prohibits an employer from deducting money from a worker’ pay for any unintentional breakages of stock or cash underings. The Act also prohibits an employer from deducting money from a worker’s pay, or requiring a worker to spend their own money, in situations where that requirement is unreasonable and for the benefit of the employer. Cases which have been considered by courts include:   “Cashback” arrangements where a worker is required to hand back part of their pay to their employer as part of a scheme to avoid minimum wage requirements . Requiring a worker to make payments to an employer under the threat that the worker’s visa would be cancelled . An education institution requiring teachers to salary package laptops which were used in the course of their employment . Requiring a worker to purchase a jacket for use during work time . Penalties for prohibited deductions or unreasonable requirement to spend your own money The Act gives courts the power to require repayment of sums unlawfully paid by workers or deducted by employers. In addition, courts can impose significant penalties on employers who breach these provisions. This includes penalties against company managers and directors. Workers who suspect that they have lost money as a result of unlawful deductions from their wages should seek advice regarding their employment law rights and entitlements. https://www.hallpayne.com.au/blog/rss/blog/2019/july/deductions-from-pay/ Tue, 30 July 2019 00:00:00 If you’re injured at work in New South Wales , you can lodge a workers compensation claim with the state-based scheme, ICARE (“Insurance and Care NSW”) or the federal-based scheme, Comcare . Workers compensation claims cover a number of benefits. Today we’re looking at lump sum payments for permanent impairment under the state-based scheme in NSW. This is covered by s66 of the relevant Act. In 2012, the NSW Government passed a number of amendments to the Workers Compensation Act 1987 (“the Act”). Those 2012 amendments together with several subsequent court decisions, an amended Workers Compensation Act (2015), Workers Compensation Regulations and other cases subsequently passed in the Workers Compensation Commission now comprise what makes up the collective rules when applying “the law” to an injured worker’s entitlement to Section 66. An injured worker’s entitlement to Section 66 lump sum compensation This is a complicated area of law. We strongly recommend you seek legal advice if pursuing a s66 claim for permanent impairment. The entitlement and amount payable to an injured worker pursuant to Section 66 lump sum compensation is very much dependent on a number of factors.   Factors considered when determining entitlement to lump sum compensation for injured workers in NSW Ascertaining as a starting point, whether the amendments made to the law affect an injured worker. Some workers are exempt from all changes made to the law in recent years. For example, police officers, coal miners, paramedics and firefighters are not impacted by the amendments. The date of injury (“DOI”) dictates which legislation applies; for example, injuries that occurred before the passing of the 1987 Act are covered by a different piece of legislation and are also exempt to the changes made to the law in recent years. Whether an injury is a physical injury or a psychological injury Whether the injured worker has reached Maximum Medical Improvement. (“MMI”). MMI is the definition as to whether or not your condition is stable enough to allow an assessment of permanent impairment or whether your permanent impairment may deteriorate within the next 12 months. Whether an injured worker’s permanent impairment has deteriorated with reference to medical evidence. An injured worker’s capacity to reach the threshold percentage for permanent impairment is dependent on their date of injury and whether their injury is physical or psychological The date an injured worker made their claim for permanent impairment. Given the recent amendments, an entitlement (if any) to Section 66 lump sum compensation is determinant on whether a claim was made ‘before’ or ‘after’ 19 June 2012. If an injured worker has received lump sum compensation once or several times during the course of their lifetime for that DOI, the law now states that the same injured worker may be entitled to a further ‘top up’ of any s.66 lump sum compensation paid before 19 June 2012. This is a complex and often confusing entitlement. Legal advice is required as to whether the injured worker has exhausted their right to ‘one further claim’ because often injured workers confuse an agreement to settle their claim with that of a binding medical assessment in the Workers Compensation Commission (“WCC”). Medical evidence demonstrating deterioration may arise over an injured workers life, that was not necessarily available when a Section 66 claim was originally made. Consequential injuries to a primary injury are compensable for the purpose of Section 66 compensation. It is crucial that you speak to your lawyer about the right time to run your final claim to Section 66 lump sum entitlement. Even if you think you’ve exhausted all your compensation claims, we may still be able to assist Please keep in mind, that even if you have exhausted all of your rights to section 66 lump sum compensation, the lawyers at Hall Payne may be able to combine your previous assessments and attempt to exceed the Work Injury Damages Threshold for the purpose of common law damages. Common law damages is a separate area of the law and includes your right to future and past economic loss (wages and superannuation). Given the recent changes, we recommend you contact our workers compensation team to assess what the amendments mean for you. Get help from a worker's compensation lawyer Given the complexity of the law in relation to workers compensation lump sum compensation claims, if you have questions about whether you are entitled to a claim for permanent impairment in New South Wales, please feel free to get in touch directly with today’s writer, Huia Azimi . https://www.hallpayne.com.au/blog/rss/blog/2019/july/workers-comp-nsw-lump-sums/ Mon, 22 July 2019 00:00:00 Recording conversations with your employer is becoming more common due to the ease and functionality of mobile phones which seem to never leave our side.  But be careful! The availability and reassurance this can bring you when you are dealing with conflict at work is enticing. However, depending on where you live, how you record a conversation and the reasons why you’re doing it, it may get you into more trouble than you already find yourself. Is it legal? In Australia, the legality of recording a conversation varies from State to State so before you go pushing that button, make sure you understand the laws that apply to the State you live or work in.   NSW, ACT & Tasmania In New South Wales, the Australian Capital Territory and Tasmania, the relevant legislation makes it an offence for a person to record a conversation unless: (a)  the person has the consent of all the parties involved; or (b)  there is a belief that it is “reasonably necessary for the protection of the lawful interests of that party”. Despite the defense to protect your lawful interests, it is important that you seek legal advice before you disclose any recording you intend to use. It has been found in some cases where individuals have recorded their boss, for what they believed was for the protection of their legal interests, the court has found that the true intention was to use the recording to  “sue” their employer and, therefore, it was found to be illegal recording.   Penalties in NSW for illegally recording a person can include significant fines and/or up to five years imprisonment! Queensland, Victoria & NT In Queensland, Victoria and the Northern Territory, the legislation is less punitive. It is legal to secretly record a conversation if you are a party to the conversation and: (a)  if the conversation occurs face-to-face; or (b)  if the conversation is over the phone and it is taped by an external device (held up to the earpiece of the phone or recorded with the phone on speaker), such as a dictaphone. However, it is illegal to record a telephone conversation using a device which is physically attached to the telephone. Where a person who is party to the conversation and has recorded the conversation, that person cannot communicate or publish any of the conversation recorded except if it is: (c)  made in the course of legal proceedings; or (d)  in the public interest; or (e)  for the protection or the lawful interest of that person; or (f)  made to a person who has, or is believed, on reasonable grounds by the person making the communication or publication, to have such an interest in the private conversation as to make the communication or publication reasonable under the circumstances in which it is made. One example of this may be disclosure in the course of a public interest disclosure – but get advice! What about phone Apps? The Telecommunications (Interception and Access) Act 1979 (Cth) (‘ TIA’ ) deals with the use of listening or recording apparatus which electronically intercepts transmission across a telecommunications system. This includes: (a)  equipment used for recording and converting the electrical impulses travelling along telephone wires into sound; (b)  the use of a radio scanner to intercept mobile phone conversations; (c) the use of a telephone bug attached by wire. In a decision by the Western Australian Supreme Court in R v Catena , however, it broadened the understanding of what was considered to be a piece of equipment connected to a telecommunication network. This included electronic systems or software installed to record and preserve telephone conversations. If the effect of the App is to record incoming and outgoing conversations as they are occurring, simultaneously with the transmission or before it is received by the device, it will likely be treated in the same way as a recording apparatus defined by the TIA . If however, the App records data after it has been received by the device, it may be outside the ambit of the TIA. You should seek advice before using such a recording as it may depend on the device and App in question. Contraventions of the TIA may result in a criminal offence. Recording your workplace disciplinary meeting or dispute Despite it being legal to record a conversation in some States and Territories, the act of recording your boss secretly has come under scrutiny by decision-makers. In unfair dismissals, the Fair Work Commission has traditionally taken a dim view of such behaviour. For example, Commission Cloghan upheld the dismissal of a Trade Assistant who secretly recorded a disciplinary meeting in the matter of Schwenke v Silcar Pty Ltd . In this matter, Mr Schewenke’s defense to secretly recording the meeting was that his employer would “find any excuse to justify dismissal”.  The Commissioner found that this excuse was “self-serving” and “ contrary to his duty of good faith or fidelity to the Employer, and undermined the mutual trust and confidence required in the employment relationship .” Each case will vary on its facts so getting legal advice is crucial. In Ron Leaver v Australian Nuclear Science and Technology Organisation, Senior Deputy President Drake of the Australian Industrial Relations Commission stated: The ordinary conduct of personal, business and working relationships in our community is predicated on the basis that if there is to be any record of a meeting it will be agreed in advance. Anything else is quite properly described as sneaky. Its very sneakiness makes it abhorrent to ordinary persons dealing with each other in a proper fashion. Similarly, in Jalea v Qantas Link Commissioner Bissett upheld the dismissal of a flight attendant noting that Ms Jalea’s conduct, in secretly taping a disciplinary meeting, impacted on the trust her employer may have had in her. Conclusion While it may be tempting to secretly record a conversation between you and your boss that you think may be useful to you in the future, you need to consider the legal ramification. It is important to remember that it will depend on the circumstances of your matter and it is possible that by recording your boss it could lead to significant fines or even the termination of your employment. The best way to safeguard yourself is to seek permission from the persons involved in the conversation and/or if possible, seek legal advice before attending any disciplinary meeting. https://www.hallpayne.com.au/blog/rss/blog/2019/july/secret-recordings/ Mon, 15 July 2019 00:00:00 A Building and Pest condition allows purchasers of property to have a licensed inspector attend the property and perform inspections for the purposes of providing a Building and Pest Report. This is usually a comprehensive report which will identify hidden issues with any property such as, internal leaks, termite infestation, structural damage, faulty roofs, and so forth. In the standard REIQ contract endorsed by the Queensland Law Society, there will be a section labeled Building and Pest. If the inspection date is not completed in this section, then the contract is not subject to the standard Building and Pest condition. If you haven’t signed the contract when we first see you, we would often advise that it is in your best interests to ensure that your contract is subject to the standard Building and Pest condition. To include a Building and Pest condition into your contract you will need to complete the inspection date on the contract. This can be written as “14 days from the date of the contract” or “14 days from the date of the initial deposit” and so on. In most cases, we suggest a period no shorter than 14 days to allow time to appoint an inspector and for you to consider the report. However, we have also seen contracts which have a period anywhere between 7 to 21 days. What if I don’t get the report by the specified date? In the event you are unable to obtain a report within the date stipulated, you are always at liberty to request an extension to the Building and Pest Condition. This is a common process. The usual extension request is for a period of 7 to 10 days. However, since this is a request, the Seller would have to agree with this request, and there is no guarantee they will. In this instance, you will be required to either terminate the contract or waive the condition by 5.00 pm on the stipulated date. If you elect to do neither by that time, the Seller then has a right to terminate the contract if they wish to do so.  What are my options once I receive my Building and Pest report? If your Building and Pest report returns without a fault or you are satisfied with the results of the report, you can instruct us to satisfy the Building and Pest Condition. On the other hand, if the report returns with faults or issues you are concerned about, you are able to terminate the contract and have the deposit monies paid refunded to you. It is important to note that if you wish to terminate the contract under the Building and Pest section, you will have to act reasonably . This can depend on multiple factors; for example the age of the property and how obvious the defect was. A Buyer would most likely not be acting reasonably if they chose to terminate the contract due to a small cracked tile in the kitchen. How Hall Payne can save you money on your Building and Pest condition Using the example above, if you were unable to terminate the contract due to the small cracked title in the kitchen, we are able to ask the Sellers to either fix the cracked title or request a price reduction on your behalf. As always, we will discuss your options with you prior to the condition date. In this situation, we might be able to suggest that we negotiate a price reduction of between $800 to $1,000. However, if the report is uncertain about the extent of the damage, it would be best for you to request the Seller fix the issues prior to settlement. We recently assisted a client to obtain a $5,000 reduction in the purchase price for several issues outlined in the Building and Pest report, which our client could fix himself. The risk in asking for a price reduction lies with the fact that if it actually costs more to repair it, you will end up being out of pocket.   4 tips for Building and Pest inspections Arrange for the inspections to be performed early so that there is time to negotiate any issues the report might bring up. Try your best to attend the inspection so that you can obtain more information regarding the potential issues outlined in the report. Be realistic with the issues found in the report; considering the age of the building and the purchase price. Enter into discussions with us so that we can choose the best strategy for obtaining your desired outcome.   Hall Payne no longer provides services in property law and conveyancing If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2019/july/pest-inspections/ Mon, 08 July 2019 00:00:00 The Full Bench of the Fair Work Commission (‘FWC’) recently handed down a significant decision on the practices of a member of the Commission arbitrating proceedings in which they have previously conciliated. Hall Payne Lawyers Principal Joseph Kennedy acted for the CFMMEU in the proceedings, which sought to have a Commissioner recuse herself from an arbitration. In the decision of Construction, Forestry, Maritime, Mining and Energy Union v Watpac Construction Pty Ltd T/A Watpac Construction [2019] FWCFB 3855,  the Bench considered the decision of Commissioner Hunt not to recuse herself from arbitrating a dispute between the CFMMEU and Watpac. Whilst the Bench decided to dismiss the appeal, the Bench did lay down some useful principles to govern the interaction between conciliation and arbitration moving forward. This is particularly significant in circumstances where there are no legislative provisions that deal with this process in the Fair Work Commission. Given the current legislation does not contain any provisions equivalent to earlier legislation, the Bench considered concerns that could give rise to a member being influenced following the conciliation process. These included: offers and counter-offers made by parties to settle the matter; parties willing to concede points in conciliation that they would not be willing to concede during arbitration; and comments made during private conferences about a party’s prospects. The Bench further noted that the above practices during conciliation are effective ways in which to help resolve and settle disputes before the Commission. Providing parties with the right to object, ensures those practices remain effective. It was also noted that the confidentiality of conciliations plays an important role in the effectiveness of resolving disputes prior to arbitration. In our view, this is an important decision that provides useful guidance to parties to disputes in the FWC moving forward. The right to object to a member who has previously conciliated, then going on to arbitrate that same matter is an important right for such parties. About the author Joseph is a Principal in Hall Payne’s Employment and Industrial department in our Sydney office. He has a wealth of experience advising unions and employees who have been treated unfairly. He has specialist accreditation from the NSW Law Society in Employment and Industrial Law and is a member of the Advisory Committee for that practice area. He is also independently recognised as a Leading Employment Lawyer in Doyles Guide. Before joining Hall Payne, Joseph worked at a private labour law firm in Sydney. He has also worked as a lawyer with the Australian Manufacturing Workers Union and United Voice. Joseph’s most satisfying recent case is the reinstatement of CFMMEU member and labour hire coal mine worker Kim Star . < Read more about the author here > https://www.hallpayne.com.au/blog/rss/blog/2019/june/cfmmeu-and-watpac/ Tue, 25 June 2019 00:00:00 If you’re going through the Family Law system, you will be subject to time limits with some proceedings. If you are looking to resolve property matters or financial proceedings through the Federal Circuit Court or Family Court of Australia , different time limits will apply depending on the status of your relationship.   For married couples, applications for property and financial matters must be commenced by filing in court within 12 months of finalising your divorce .  For de facto relationships, the Family Law Act (the Act) allows a period of 2 years after the end of a relationship to file for property or financial application. In both instances, these are strict time constraints and if you fall outside the time limits, you will have to apply to the court for leave (permission) to commence your application out of time. In de facto cases it is more likely that parties will not agree as to exactly when separation occurred. Leaving it to a court to determine this is a costly and uncertain process for the parties. Therefore, it is always best to commence your proceedings early.    Grant of leave to make your application outside the time limits The courts will usually only grant leave to apply outside of the time limits stipulated under the Act, if it is satisfied that: hardship will be caused to the party or a child if leave is not granted; or when the time had lapsed, the applicant would have been unable to support themselves without an income tested pension, allowance or benefit. To be granted leave under the hardship requirement you must also demonstrate that you have a case worth pursuing and there is a real chance of succeeding in that case. Further, you will also need to provide reasons for why you did not make the application before the time expired.  Once out of time it is important not to delay further, without good reason. Ordway & Ordway (2012) is a case where the wife commenced proceedings 26 years after finalising her divorce. She claimed that the reason for not making the application before the time had expired was because there was an informal arrangement in place with the husband and she was worried that any proceedings initiated by her would upset the existing informal agreement. The court found there was a significant power imbalance in regards to finances. Therefore, if leave was not granted to the wife to proceed out of time, she would suffer hardship as the value of her assets would be nominal.  Ultimately from this case, it is obvious that despite the time limits placed on applicants to commence proceedings for property and financial orders, the Family Law Courts have an extensive discretion to grant leave for applicants to apply out of time.   A Hall Payne win in the Full Court of the Family Court In the recent case of Simonds (deceased) & Coyle [2019] an application for leave to proceed out of time where the application for leave was filed after the respondent’s death, was dismissed. Hall Payne Lawyers acted for the Appellants (Simonds) in this de facto matter. Since this is a de facto case, both parties alleged that separation occurred at different times. Ms Coyle began proceedings in May 2017, claiming that separation occurred in December 2015 which fell within the two-year limitation mentioned above. Two months later our client passed away after filing his Response in which he claimed separation had occurred in October 2013; therefore, making the application out of time. Sometime later, in May 2018 Ms Coyle filed an amended application where she applied for leave to proceed out of time. The Federal Circuit Court found that separation occurred in October 2013 but granted leave for Ms Coyle to proceed out of time. An order was made that permitted her to continue the proceedings against the executors of her de facto partner’s estate. We appealed this decision to the Full Court of the Family Court On appeal, Justices Murphy, Kent and Strickland found that the de facto wife’s Initiating Application could only be effective to institute proceedings if she first obtained leave to proceed pursuant to s44 of the Family Law Act (1975) , which she had not. Furthermore, the Full Court found the court lacked jurisdiction to grant leave to continue proceedings against a party who subsequently died, which were out of time. As such, Justice Egan’s original decision to grant leave to Ms Coyle to proceed out of time was overturned where no leave to commence had been granted before the death of the other party. Therefore, our deceased client’s executors appeal had to be granted and the original orders were set aside. Conclusion It is clear from the above two cases, not only do the courts have wide discretion for granting leave to commence an application out of time but particular circumstances, often where there is or may be a dispute about the separation date,s require early and quality legal advice.   In such cases, if initiating proceedings are inevitable, we will advise our clients to commence this process earlier than later. This is somewhat better than having to go through the expensive and uncertain process of applying for leave to commence proceedings out of time. Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2019/june/property-settlement-time-limits/ Tue, 18 June 2019 00:00:00 Serious and terminal illnesses are sadly, ever present in our community. We applaud all the health professionals, scientific researchers, carers and volunteers who work with the sick and injured on a daily basis. Many of our staff volunteer in some capacity and today, we want to share the story of Sydney Employment Law Principal, Joe Kennedy and his amazing brother and niece. Joe is a founder and Director of RUN DIPG. His brother Matt, is a cancer researcher and Matt’s daughter Josie (Joe’s niece) has a life threatening illness. What is RUN DIPG? RUN DIPG is a charitable organisation dedicated to improving treatment outcomes for children diagnosed with diffuse intrinsic pontine glioma (DIPG). DIPG is the deadliest form of childhood cancer with an average survival rate of just nine months following diagnosis. RUN DIPG funds critical medical research into DIPG, coordinated by Dr Matt Dun, Joe’s brother, a cancer researcher at the Hunter Medical Research Institute (HMRI) and the University of Newcastle. Matt’s daughter, Josephine was diagnosed with DIPG in 2018; the deadly disease with an average survival rate of just ten months post-diagnosis. RUN DIPG’s researchers are focused on investigating ways to identify and characterise markers of disease progression, testing new drug therapies and designing treatment strategies to improve survival rates. They actively profile DIPG tumours using sophisticated technologies, which enables them to identify how each DIPG grows and survives, revealing targets for improved treatments. Matt and Josie’s battle with DIPG and their amazing story has also been highlighted  in the media . The article highlights the incredible and dedicated work of Matt and his research team, which is funded by the charity initiatives delivered by dedicated and passionate volunteers. At Hall Payne we’re proud to support RUN DIPG. Joe hopes that the charity can continue to grow and ultimately, continue to deliver the much needed funding and support to see development of better treatment and perhaps even a cure for DIPG for all those diagnosed with this particularly aggressive cancer. We encourage you, our clients, colleagues, friends and followers, to find out more about the incredible work of RUN DIPG and consider supporting this important cause. https://www.hallpayne.com.au/blog/rss/blog/2019/june/run-dipg/ Fri, 14 June 2019 00:00:00 In short, nurses, midwives and doctors are some of the most trusted and respected professions in the community. Patients expect them to act in their best interests and to respect their dignity. A breach of professional boundaries will lead to a violation of the practitioner’s professional responsibility (see Codes of Professional Conduct and Code of Ethics ). It doesn’t matter if the boundary violation was inadvertent, thoughtless, altruistic, or even purposeful. It’s still a boundary violation. The doctor/nurse-patient relationship isn’t a friendship; it’s a therapeutic relationship directed by the patient’s health needs. The community entrusts practitioners to act in the best interest of those in their care and that their care will be based on an assessment of their specific needs. What are professional boundaries? Professional boundaries are defined as limits which protect the space between the professional’s power and the client’s vulnerability. They are the borders that mark the edges between a professional, therapeutic relationship and a non‑professional or personal relationship between a health practitioner and a person in their care. When a health practitioner crosses a boundary, they are generally behaving in an unprofessional manner and misusing the power in the relationship. What is a boundary violation? Boundary violations occur when the practitioner behaves in an unprofessional manner by misusing their power in the nurse-patient or midwife-patient relationship. This is because there is an inherent power imbalance between vulnerable patients and the practitioner providing care. That is, there is an inherent power imbalance in therapeutic and care relationships. If there is a breach, each circumstance would need to be assessed on the gravity of the departure from expected professional standards. The context of: the type of service or health facility; the physical setting; characteristics of the consumer; and the complexity of care required by the patient, would all be considered in coming to any conclusions. Is the behaviour or activity within the scope of practice of the health practitioner and in keeping with contemporary competency and practice standards? Examples of improper boundary-crossing behaviour (non‑therapeutic behaviour) by a health practitioner, include: having sex with a patient (consent is not a defence); breaches of patient confidentiality or privacy; use of social media between the parties - blurring the lines between professional and personal lives; accepting gifts or benefits from patients and/or their families; developing a personal or intimate relationship with a patient (going out together on weekends or exchanging personal telephone numbers); financial exchanges (the lending or giving of money); favouritism of any kind; excessive personal/self-disclosure or secrecy; seductive, sexually demeaning or harassing conduct; and flirtatious communication, employing sexual innuendo, off‑colour jokes or offensive language. To avoid a breach, practitioners should simply abstain from this type of behaviour. What can happen if you breach professional boundaries? In serious cases, health practitioners may be liable for disciplinary action brought by their Board, or regulators, such as the Queensland Office of the Health Ombudsman (‘OHO’) or NSW HCCC for unprofessional conduct or professional misconduct. Regulators bring such “charges” in a tribunal which has the power to suspend or cancel a practitioner’s registration, impose a fine and leave the health practitioner liable for legal costs in some cases.  It can be career ending. Subject to a notification or complaint? Do not delay seeking advice! Get help from an employment lawyer Hall Payne Lawyers has a team of experienced lawyers who can provide advice and representation to you and help you get through the stressful process following a notification or complaint. We see too many health practitioners who have tried to go it alone before seeking advice and suffer adverse outcomes. Health practitioners who get advice early on have the best outcomes – it can be the difference to being able to continue to work or not. If you are facing disciplinary action for actions which constitute a breach of professional conduct or code of ethics, it is vital you seek early assistance from your union or a lawyer experienced in these matters . https://www.hallpayne.com.au/blog/rss/blog/2019/june/professional-boundaries/ Tue, 11 June 2019 00:00:00 In what our clients have described as a “landmark victory”, Hall Payne Lawyers has successfully defended an unprecedented attack by the Queensland Police Service on union officials’ statutory right of entry in Queensland. On 17 December 2018, four union officials from three different unions attended the worksite of a recalcitrant employer for the purpose of investigating suspected safety contraventions. Each union official held valid right of entry permits in accordance with the Fair Work Act 2009 (Cth) and the Work Health and Safety Act 2011 (Qld). Employer refuses union officials’ entry to worksite Upon arriving at the workplace, the union officials advised the employer that they were seeking to enter the worksite in accordance with s.117 of the WHS Act and provided their entry notices, as required by s.119. The employer refused to allow the union officials to enter the worksite and demanded that they leave immediately. The union officials called the regulator, Workplace Health and Safety Queensland (‘WHSQ’), and asked for WHSQ inspectors to attend the worksite. The employer contacted the Queensland Police Service several times and demanded that police officers be sent to the worksite to remove the union officials. Police assert union officials are trespassing; despite valid right of entry permits Several police officers arrived at the worksite and sided with the employer from the moment they arrived. The police officers asserted that the union officials were trespassing, despite refusing to view their entry permits and/or consider any explanation that was provided by the union officials. The police officers had formed their views despite not giving the experts, WHSQ, an opportunity to intervene. WHSQ inspectors arrived a short time later but were told by the employer and a police officer to leave before the matter was resolved. This is despite a memorandum of understanding being executed by the Queensland Police Service and the Office of Industrial Relations which confirmed that WHSQ is the appropriate authority to deal with the matter at hand. Union officials ultimately arrested The police officers then incorrectly tried to argue that the union officials’ right to remain at the worksite had ceased because the WHSQ inspectors had left. The union officials rightly stood their ground and were ultimately arrested. They were then each charged with one count of trespassing, before being transported to a watchhouse and placed in a locked cell for several hours. They were later released on onerous bail conditions which we successfully had removed less than 48 hours later. Despite several attempts by Hall Payne to explain the relevant industrial legislation to the prosecution, the arresting police officers refused to withdraw the charges against the union officials and asserted that the charges related to unlawfully remaining at the workplace; not entering . The union officials’ matters were then heard together in a three day hearing in the Brisbane Magistrates Court before Magistrate Wendy Cull. Police evidence found to be demonstrably untrue During the hearing the conduct of the police officers was heavily scrutinised. It was revealed that, before giving the union officials any opportunity to explain what their right of entry permits allowed them to do, one police officer made comments such as, “why are your industrial laws above our laws?” and “you are the ones doing things wrong today, not us”. The police officer was later embarrassed in court when he initially denied that he made those comments, only to be forced to admit to his conduct a few minutes later after viewing a video recording. Another police officer claimed that he did not make any notes in his official police notebook on the day. He was later confronted with a video recording that depicted him taking notes in his police notebook. The Court ultimately found his evidence was untruthful on that basis. Perhaps most embarrassingly for the Queensland Police Service, two police officers gave evidence about which union official they had each arrested. The police officers had earlier presented sworn statements containing their versions of events and they were both adamant that they had arrested the person that was identified in their statements. After watching a video recording of the arrest, the police officers were forced to admit that they had each arrested the wrong person. In what can only be described as a scathing judgment that described some police evidence as “naïve and concerning” , Magistrate Cull struck the charges out on the basis that the defendants, our clients, had “no case to answer”. Her Honour made her finding on four bases, which included: the prosecution was unable to establish that a provision in the Summary Offences Act , which provides a defence for the offence of trespass for union officials entering a workplace in accordance with their entry permits (s.11(3)), did not apply to remaining ; the prosecution was unable to prove that the union officials unlawfully remained at the worksite when they were asked by the employer to leave; the prosecution was unable to disprove any argument that the union officials had exercised an “honest claim of right” when they remained at the premises; and the prosecution had failed to establish that the police officers had discharged their powers in accordance with the Police Powers and Responsibilities Act before arresting the union officials, which has potentially rendered the arrest and detention of the union officials to be unlawful. The prosecution case against the union officials was so flimsy it did not even proceed to the point where the Magistrate had to make findings about whether the charges had been proven beyond reasonable doubt. It was dismissed immediately after the close of the prosecution case. Application for costs Hall Payne Lawyers subsequently made an application for costs. On 4 June 2019 Magistrate Cull issued a costs certificate that required the Queensland Police Service to pay $85,000.00 in legal costs; which we understand to be the highest costs order that has ever been made against the Queensland Police Service in the Magistrates Court of Queensland. The statutory right of entry regime plays a significant role in ensuring that Australian workers are protected from imminent risks to their health and safety, and attacks on their lawful entitlements, by employers who think they are above the law. Hall Payne Lawyers will continue to play our part for the union movement by ensuring that such important rights for union officials remain protected at all costs. https://www.hallpayne.com.au/blog/rss/blog/2019/june/costs-awarded-against-qld-police/ Tue, 04 June 2019 00:00:00 A disciplinary meeting can be one of the most daunting experiences of your working life. They are normally held as part of an investigation into your performance or conduct at work. The presence of a support person at a disciplinary meeting is important, to offer emotional support and/or to ensure your workplace rights are protected. This could be a trusted colleague, friend, family member, union representative or lawyer. Your right to a support person There is no law expressly requiring that support persons be allowed at any and all disciplinary meetings. The only legal protection of the right to a support person can be found in Part 3-2 of the Fair Work Act , which governs unfair dismissal. In considering whether a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal. There must be a request by the employee for a support person. This section of the Act will not cover situations where there is no request and the meeting proceeds. What constitutes unreasonable refusal? The law does not prohibit all refusals; it must be an unreasonable refusal of a support person. The employer does not have to inform you that you can have a support person, nor do they have to offer you one. In some circumstances, the employer’s refusal to reschedule a meeting so a particular support person can attend could be considered unreasonable. This will depend on a request for an adjournment being made, and insufficient notice being provided. An example of where it would be unreasonable for an employer to refuse a support person is where they are needed to assist with communication where the employee speaks limited English. What can a support person do at a disciplinary meeting? The law states that the support person is there “to assist in any discussions relating to dismissal”. It is generally accepted that a support person plays a passive role and is not allowed to advocate for the employee. However, this is often exaggerated by employers who will often try to stop support persons from speaking at all. It has been held in the Fair Work Commission case of Gomes v Qantas Airways Limited , that: a support person must, at the very least, be able to speak for and on behalf of the person they are supporting when providing assistance . You can ask your support person questions, they can seek clarification for you if you don’t understand a question asked by your employer, or they can ask for a break so you can speak together in private. It is also critical that your support person take good notes of what is said in the meeting. Conclusion This is a complicated area, and for that reason, if your performance or conduct at work is the subject of a disciplinary meeting, you should seek immediate advice from your union representative or an experienced employment lawyer . https://www.hallpayne.com.au/blog/rss/blog/2019/june/disciplinary-meeting-support-person/ Tue, 04 June 2019 00:00:00 If you have an employment contract with a set duration, it will almost always be possible to terminate that contract early. However, there are a number of consequences that may arise should you choose to do so. Termination clauses in your employment contract The first and most important piece of advice we can give is to make sure there is a termination clause in the contract. You should consider how much notice you would want to give in the event you wish to move on. We recommend 4 weeks’ notice. Although depending on the nature of your job, and any other provisions which have effect after the contract terminates, like a restraint clause . you should seek advice on appropriate notice. Notice periods Section 117 of the Fair Work Act 2009 (Cth) (‘ FW Act ’) generally provides the notice that employers are required to give, in the absence of a contractual term, for termination.  Section 118 of the of the FW Act provides that an Award or enterprise bargaining agreement (‘ EBA ’) may provide for notice of termination to be given by employees. If you want to resign, you should check your Award, EBA or employment contract. Usually, one of these documents will set out the required period of notice. If you provide notice of termination in accordance with your contract, Award or EBA then there should not be any legal repercussions for you. However, some people will find themselves in circumstances that fall outside of the norm and are not able to satisfy the required notice period. For example, you may wish to pursue another job opportunity at short notice or it may be unclear if there is a notice period at all. Risks of early termination If an employer commits a serious breach (or repudiation) of the employment contract, an employee is entitled to resign without notice. However, if you resign for your own reasons, before the contract term is up, and do not satisfy the notice period (if any), you will be in breach of contract. If you are in breach, it is possible that a court could make an order for specific performance of the employment contract by you; see, for example, the case of Quinn v Overland .  However, this is unlikely as courts are generally reluctant to make these orders and have previously likened them to slavery. It may also be possible for your employer to sue for damages. For example, if you resign without giving the required notice, a former employer may sue for the value of the unexpired term of the contract or the additional costs involved in finding a replacement.  This is uncommon and unlikely to be cost effective for the employer. However, the risk increases for employees that are highly skilled and/or difficult to replace. Failure to satisfy notice period An employment contract can be terminated at any time by mutual consent. For this reason, it may be worth requesting that you be released early and without having to serve out your notice period. If you resign and do not satisfy the notice period, what may happen is that your employer will try and deduct an amount from your final pay in lieu of notice.  Employers are not generally entitled to do this unless the deduction falls into one of the categories outlined under section 324(1) of the FW Act; or example, where the deduction is authorised under an Award or EBA. Always seek advice from your Union or a lawyer if you are concerned about deductions made by your employer. If your employer has deducted money from your final pay because you have not satisfied the notice period, seek legal advice immediately. What if there is no notice period? Where there is no prescribed notice period and an employer terminates a fixed term employment contract, they may be liable to pay the employee out for the remainder of the contract term. On the other hand, an employee who terminates a fixed term contract early will be exposed to the risks mentioned above; however, in most cases the employee is unlikely to be pursued. Other considerations when you terminate an employment contract early ‘Gardening Leave’ In some circumstances, an employer may direct an employee to stay away from work for the duration of the notice period. This is colloquially known as ‘gardening leave’ because the employee remains employed but is paid to stay at home and ‘tend the garden’. The legality of gardening leave is somewhat grey and very often dependant on the facts of a particular employment and the relevant employment contract. One view is that it breaches the employer’s duty to provide work and deprives the resigning employee of the dignity of work . On another view, it is open to an employer to lawfully and reasonably direct an employee not to attend work , provided they are paid. Regardless, many employees may choose to go along with ‘gardening leave’ for obvious reasons. Get help from an employment lawyer If you are concerned about your rights under a new employment contract, in the event of early termination, the best advice we can give is to have your employment contract reviewed prior to signing the contract or commencing employment . https://www.hallpayne.com.au/blog/rss/blog/2019/may/early-contract-termination/ Mon, 27 May 2019 00:00:00 Your ex has had the children for the weekend but he/she hasn’t returned them to you as agreed. It’s an emotional and sensitive time for all. This doesn’t happen often but when it does, it is best to be prepared. Depending on your individual circumstances there are different approaches to have your children returned to your care. Since the topic of recovery is somewhat individual and circumstances will vary from case to case this topic will be broken down into three blogs. Dealing with the recovery of a children while you have current court proceedings; Dealing with the options available to you if your family law matter is finalised and you have parenting orders; and Discussing options available to you if do not have parenting orders and have not begun proceedings in the Federal Circuit Court of Australia. Dealing with the recovery of children when you have current family court proceedings If you are faced with this unfortunate and worrying situation it is best you act quickly by seeing an experienced family lawyer as soon as possible or making an application to the court for a recovery order. If you have a current case with the Family Court or the Federal Circuit Court of Australia you are able to make an urgent application to the court for a recovery order. This application can be heard ex parte if you believe there is a risk of harm to the children. Having the application heard ex parte means your application will be heard in the absence of your former partner without providing any notice of the application to them.   Section 67K of the Family Law Act (1975) provides for the following people to apply for a recovery order: A person who the child lives with, spends time with or communicates with as stated in a parenting order; A person who has parental responsibility for the child in a parenting order; A grandparent of the child; or A person concerned with the care, welfare and development of the child. Where there are current court proceedings, your former partner will have their contact details filed with the court or their legal representative, therefore contact between the parties should not be an issue. About 80% of the time miscommunication between the parties is the issue which has led to your former spouse not returning the children back to your care on time. What should I do as soon as I become aware the children have not been returned as agreed? The best approach is to initially call or text your former partner to find out why the children haven’t been returned and to reach an agreement to have the kids returned to your care as soon as possible. A simple text message providing a deadline for the return of children and insisting that an application for a recovery order will be made otherwise. Alternatively, if you have a mutual friend or family member who has a good relationship with both parties, it might be fruitful to ask them to assist with achieving an agreement to have the child returned to you. These initial steps can often be sufficient for your ex to either explain a misunderstanding or begin a meaningful dialogue with you and hopefully reach an agreement. Ultimately, since there are current court proceedings in place it would be foolish for a party to deliberately attempt to relocate the children without consent as this course of action will severely jeopardise their current parenting case. If attempts to negotiate directly with your ex fail, the last resort would be to file an urgent application for the court to grant a recovery order for the children to be returned to your care. In determining whether to grant a recovery order, the court will always consider the best interests of the child as the paramount consideration. Accordingly, your affidavit filed with your application should reflect this. A recovery order will usually request the Australian Federal Police to locate and recover the children. As a matter of practice, the Federal Police will in most cases want to return the child back to you as soon as possible. Therefore it is imperative that you are able to travel on short notice during this time, should your children be at a location some distance away, including interstate. It is important to be aware that this blog topic specifically relates to relocation within Australia. If your child is taken overseas or outside of Australia, it becomes a whole different ball game. Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2019/may/child-relocation/ Tue, 21 May 2019 00:00:00 Both the Guardian and Adelaide’s InDaily online newspapers carry reports that Clive Palmer’s United Australia Party (UAP) is offering people $200.00 to hand out how to vote cards at the May 2019 election this Saturday in a number of Adelaide seats.  Palmers UAP campaign has been dogged by stories about workers at Palmer’s Townsville nickel refinery not receiving entitlement payments following its collapse. There is a real risk that the reported election day deal offered for campaign workers may get UAP into hot water and create a nasty political tangle, in an election where wages are central, for a UAP campaign already struggling to avoid talking about Townsville nickel workers. What is the election day offer from Clive Palmer? The reports state that a Facebook post by Port Adelaide Enfield Councillor Mark Basham, is looking for workers to hand out how to vote cards on Saturday. The workers are to be paid $200.00 for working from 7:30 am to 6:00 pm with a half-hour break.  This amounts to 10 hours of work for $200.00. But is the offer lawful? Arguably, no. Are the ‘workers’ engaged as casual employees or contractors? The offer made by Clive Palmer’s UAP looks, for all intents and purposes to be an offer of casual employment. If so, UAP has big problems. Given the workers are not running their own business, only supplying their labour, wearing UAP uniforms, must work as directed by UAP, don’t need to provide any tools to do the work, and given the low pay and having no ability to subcontract or delegate, it is highly unlikely they would be legally considered to be contractors. The current national minimum wage is $18.93 per hour, with an additional 25% casual loading for casual employees. That means that the minimum national hourly rate for casual employees is $23.66. Under Australia’s national minimum wage, casual workers handing out how to votes for any political party would be entitled to a minimum $236.62 for 10 hours work. The verdict We reckon Clive needs to get UAP to have another look at these offers and make sure it’s not unintentionally ripping off election day workers. If he doesn’t dot all his “I’s” and cross his t’s”, and the workers are considered casual employees, UAP may be up for thousands in unpaid wages for the work done on election day. Should you have any concerns in respect of whether you're receiving your correct entitlements and wages, contact our experts for advice or get in touch with today’s blog writer, Principal in Employment & Industrial Relations law, Luke Forsyth . https://www.hallpayne.com.au/blog/rss/blog/2019/may/uap-election-worker-payments/ Wed, 15 May 2019 00:00:00 For most people participating in some form of work experience has become a necessity in order to complete their qualification or land that first paid job. Whilst you may have great tertiary or other qualifications on your CV, what’s in the ‘ experience’ section, is often minimal or not transferable to your desired profession. However, many purported work experience schemes, or to use the du jour word “internships” are unlawful and little more than schemes by which your labour is obtained without payment. When considering unpaid work experience or an internship, you should always consider whether this unpaid work experience should in fact be paid work. Unfortunately, most who participate in work experience are not financially renumerated nor guaranteed employment and accordingly, unpaid work experience can end up being a rather costly exercise. In a 2016 report commissioned by the Commonwealth Department of Employment to examine unpaid work experience in Australia , it was identified that a third of Australians (34%) aged between 18-64 reported at least one episode of unpaid work experience in the previous 5 years. With the prevalence of internships becoming increasingly common place, that begs the question as to whether internships should be paid? In fact, the real question is not whether the work experience should be paid but whether the arrangement in place constitutes an “employment” arrangement such that payment must be made. Determining if it is an employment arrangement or bona fide work experience Under the Fair Work Act 2009 (Cth) (‘FW Act’), there is one type of work experience which cannot be classed as involving any form of employment and that is a “ vocational placement ”. Vocational placements are an important exception to the minimum terms and conditions of employment in the FW Act. Based on the FW Act’s definition of “vocational placement”, someone working for an employer will be exempt from categorisation as a national system employee with the arising obligations where that person: has no entitlement to remuneration (e.g. wage) of any kind; and the placement is a requirement of an education or training course (or associated study component); or that the placement (or potentially the course within which the placement falls) is authorised under a law or administrative arrangement of the Commonwealth, State or Territory; and has been actively “placed” by the relevant educational or training institution. Examples of a vocational placement: A nursing student who must undertake a clinical placement in a hospital as a requirement of their course; A law student undertaking the practical component of their practical legal training course in a law firm in order to satisfy the legal practitioner admission requirements. What if my work experience is not a vocational placement? Work experience performed outside the confines of a vocational placement may attract a degree of uncertainty as to the actual status of the work experience. Whilst the parties (you and your employer) may assume a given arrangement is work experience, on closer examination it may be the case that the arrangement is an employment arrangement and therefore, your employer \may be in breach of the FW Act by failing to pay the required minimum wage.   Identifying if the arrangement is an employment contract Some key indicators which may point to the existence of an employment arrangement include: an intention to enter into an agreed arrangement to do work for the employer; a commitment by the person to perform work for the benefit of the business or organisation and not as part of a running a business of their own; and an expectation that the person receive payment for their work . If the true substance of the relationship is an employment relationship, it does not matter if that relationship is described by any other term or if the worker is acquiring additional skills and experience; it will be an employment relationship and the party performing the work experience has a legal entitlement to be paid. Is there an organisation that monitors unpaid work experience? Yes – Unions!  The best protection available to workers is to join their Union. Unions can provide you advice on the particular arrangement and whether it is lawful. Unions have been repeatedly successful in recovering unpaid wages for their members arising from dodgy internships and work experience rorts. If you are not a member of a Union, aside from having a good long hard look at yourself, you can seek information from, the Fair Work Ombudsman (‘FWO’).  In recent years the FWO has taken proactive steps in determining the legality and legitimacy of unpaid work experience by scrutinising instances of unlawful unpaid work experience, job placements and internships. In 2015, the FWO fined a radio broadcaster for underpaying two university students who worked for many months as radio producers. The FWO described the arrangement as being ‘exploitative’ and emphasised that ‘profiting from “volunteers” is not acceptable conduct’. Another case in which the FWO intervened involved a company that was fined over $280,000 where an event planner had to perform 180 hours of unpaid work as an intern before being given paid employment. The answer to the question depends on the nature of the work experience arrangement Many job seekers would not stop to think about the true nature of their unpaid work experience arrangement. They unfortunately simply accept the lawfulness of what their employer is doing. The requirement to have experience in addition to tertiary qualifications is so important, and competitive, that most job seekers may not concern themselves with how they get that experience and whether it is unpaid, just so long as they get it.   But this does not negate the fact that there will be many instances of unpaid work experience that are unlawful and the pursuit for career advancement should not come at the cost of an individual being exploited. Are you doing unpaid work experience which you think should be paid employment? As you can see from the examples above, you would not be alone. Unfortunately, there are unscrupulous (or ill informed) employers out there. If you’d like to investigate the conditions and legality of your work experience placement, feel free to get in touch directly with today’s author, solicitor in Industrial & Employment Law, Kathryn Lohman. https://www.hallpayne.com.au/blog/rss/blog/2019/may/work-experience/ Mon, 13 May 2019 00:00:00 In Australia, there are two courts your family law matter can be filed or heard in; the Family Court of Australia and the Federal Circuit Court. Just because you might have a family law dispute with your former spouse, doesn’t necessarily mean your application would be filed or heard in the Family Court of Australia. In which court should my family law matter be dealt with? Choosing the correct court to file your application depends on the complexity of your family law dispute. Of course, there is common view among the general public that all family law disputes are complicated. However, there are a set of issues that determine the complexity of your specific dispute which in turn determines which court you should file in. What are considered complex family law disputes? If your case deals with any of the following issues, it should be initiated and be heard in the Family Court of Australia. The Family Court has jurisdiction to hear the following complex family law disputes: International child abduction; International relocation; Disputes as to whether the case should be heard in Australia; Special medical procedures (gender reassignment); Contravention of parenting Orders made within 12 months of filing; Serious allegations of sexual or physical abuse of a child; Complex issues regarding jurisdiction; Matters exceeding four days of hearing time; Validity of marriages and divorces; and On the other hand, the Federal Circuit Court, previously known as the Federal Magistrates Court has jurisdiction to hear most family law disputes and federal law disputes. Family law disputes which are deemed to be less complex and under the jurisdiction of the Federal Circuit Court are issues which deal with: Parenting and financial matters; Child support and maintenance; Divorce; Contraventions; Injunctions; and Location and recovery of children. The differences between the Family Court and the Federal Circuit Court Court documents The Federal Circuit Court was established to assist the Family Court in relieving the workload so that the Family Court may allocate more time to consider complex family law matters. Therefore, the Federal Circuit Court deals with a higher number of cases and is governed by the Federal Circuit Court Rules (2001) whereas the Family Law Rules (2004) govern the Family Court. Accordingly, there are different sets of rules and forms to complete depending on which court your matter is heard in. Steps required prior to filing applications Another difference is the requirement from the Family Court for you to complete certain steps before you file your application. This is known as pre-action procedures. This is not required for financial cases filed in the Federal Circuit Court. Court Fees At the time of writing, there is no difference in filing fees between the Federal Circuit Court and the Family Court for comparable fees. The difference lies in the Court Event fees. For example, a daily hearing fee in the Family Court of Australia is $860, while the daily hearing fee in the Federal Circuit Court is $630. Ultimately, it is imperative to understand that both courts will use the Family Law Act (1975) in determining your family law disputes. The Family Court is a more formal, specialised and superior court. Therefore, in certain circumstances the decisions made in the Federal Circuit Court can be appealed to the Family Court within 28 days. If in doubt file in the Federal Circuit Court Due to the overlapping jurisdiction of both courts and where your application can be filed in either the Federal Circuit Court or the Family Court it is best practice to first file in the Federal Circuit Court and allow the court to determine if it should be transferred to the Family Court if resources permit. If you have filed in the wrong court, there are protocols in place for either the court or a party to transfer the matter to the correct court. The future – a new Bill has been proposed Having two different courts, rules and forms can be complicated for a lay person and possibly even prevent access to justice. A new Bill known as the Merger Bill has been put forward to the Senate Committee proposing a merger of the courts to be known collectively as the ‘Federal Circuit and Family Court of Australia’; being made up of two divisions. It is uncertain if the Bill will be supported by the opposition before the next Federal Election, expected in May 2019. In any case commentators have voiced their concerns that having a ‘shift away from family law specialsation is concerning.’ As the progress of this Bill continues or if its contents are legislated in part or full, we will provide further details. Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2019/may/family-law-courts/ Mon, 06 May 2019 00:00:00 Strictly speaking, restraint of trade clauses are not fully enforceable. Under the common law doctrine of restraint of trade clauses, such clauses are presumed to be void and unenforceable as contrary to public policy. This presumption may be rebutted however if the employer can demonstrate the existence of special circumstances which establish that the restraint clause is reasonable and is not unreasonable in the public interest. The employer has many hurdles to clear as far as establishing such special circumstances and these include: First hurdle – Is the restraint enforceable? Restraint clauses will be unenforceable unless they are necessary to protect the employer’s legitimate business interests. What is necessary will depend on the circumstances of the individual matter, taking into consideration the following points: the interests that the restraint seeks to protect; the geographical scope of the clause and the timeframe over which the restrain will operate; the employee’s current role versus their previous role; and the nature of the industry. The type of interests an employer may seek to protect can be varied however. Common examples of legitimate business interests can include: client connections; confidential information; and trade secrets. Restraint clauses which merely seek to protect an employer from competition will be unenforceable as an employer is not entitled to “freedom from all competition per se”. Second hurdle – What is the scope of the clause? Assuming that the employer is able to establish that it has a legitimate interest to protect, the restraint clause still needs to be reasonable in its duration and extent. Therefore, the geographical area in which the restraint seeks to cover needs to be considered. The timeframe for which the restraint seeks to operate also must be considered. Both of which must be reasonably necessary in the circumstances. A final point – Does the restraint contain cascading subclauses? It is preferable when drafting employment contracts that restraint clauses are drawn so that the clause contains various subclauses, which are separate and distinct from each other. In circumstances where a dispute arises in relation to a restraint clause, cascading restraints allow courts to easily sever a clause without affecting the validity of the other sub restraints. If after going through this process, the court is satisfied that what remains is reasonable, the court may then enforce what remains of the restraint clause. Get help from an employment lawyer Have you got a restraint in your employment contract that you believe is unreasonable? Has an employer sought to invoke a restraint in a way you feel is unreasonable? Feel free to get in touch directly with today’s blog writer, Solicitor in Employment Law, Kathryn Lohman . https://www.hallpayne.com.au/blog/rss/blog/2019/april/can-restraint-of-trade-be-enforced/ Mon, 29 April 2019 00:00:00 If you are an employee in the National System, your redundancy entitlements are guaranteed by the National Employment Standards ( NES ). The fact that you are a high income earner, does not, on its own, prevent you from redundancy entitlements. There are several factors to consider. An employee will be entitled to a redundancy payment under the NES if: they have been working for their employer for over 12 months; their employer is not a Small Business Employer under the Fair Work Act 2009 ; and their employment is terminated by the employer because their position is no longer required to be performed (and the employee cannot be redeployed within the employer’s business or an associated entity). The NES redundancy entitlements provide for a certain number of weeks’ pay per year of service. It is important to remember that the NES entitlements are just the safety net and employees may have more favourable redundancy entitlements in their enterprise agreement or their contract of employment. My employer is saying I’m not entitled to a redundancy payment – is that true? In some circumstances, an employer will not be required to make a redundancy payment to an employee even though the employee's position has been made redundant. If you have been working for the employer for less than 12 months and/or your employer is a Small Business Employer, you may not be entitled to a redundancy payment. If you earn more than the high income threshold (as set out in the Fair Work Act ), this fact alone will not prevent you from being paid your redundancy entitlements. However, if your employer offers you another position within the employer’s business, or the employer takes steps to secure you a role in another business, the employer may be able to reduce the redundancy payment that they are required to pay by a proportion (up to and including 100%). It is important to seek advice about the consequences of rejecting an offer of alternative employment in these circumstances, as your entitlement to a redundancy payment may be at stake. What if my employer offers me a more junior role? While an offer of alternative employment does not need to be identical to (or better than) your current position, it still needs to fall within a ‘range of tolerance’ before the employer can seek to reduce your redundancy entitlements. Various factors are relevant when considering whether an alternative position is within the ‘range of tolerance’, including: salary; duties and responsibilities; location; status within the organisation; and opportunities for career progression. Get help from an employment lawyer No one factor is determinative, or more or less important than any other factor. This means the ‘range of tolerance’ can be difficult to define. If your position is being made redundant and your employer has offered you alternate employment that you consider is inappropriate (taking into account the above factors), you should seek advice from a lawyer experienced in employment law . You can get in touch directly with today’s blog writer, Ellie Bassingthwaighte, for advice and assistance in relation to your specific circumstances. https://www.hallpayne.com.au/blog/rss/blog/2019/april/redundancy-entitlements/ Tue, 23 April 2019 00:00:00 In Family Law, mediation is a tool widely used by the legal profession to encourage parents or former partners to develop solutions to their dispute without having to go to trial. We’ve developed 5 useful tips for you to prepare for your next mediation. Mediation can still be a stressful process, however with these 5 tips, you will be well equipped to have a successful mediation Seek legal advice before mediation Seeking legal advice, if you haven’t already done so, will allow you to know your rights at mediation and more importantly, your lawyer will be able to guide you in understanding the full effect of any proposed offer by the other party. Additionally, after looking into the unique circumstances of your case, experienced family lawyers will be able to provide you with an acceptable range of offers which you might expect to receive if the matter was to be decided by a Judge. This is vital as you might have undervalued or overvalued your contributions to the relationship. For example, you might expect to have only 20% of the assets in the property pool when realistically you would be entitled to 55%. Know what you want achieve Before attending mediation, it is important to know exactly what you want to achieve. When you make a list of what you want, you should prioritise the items on the list. This is so that when an offer is proposed, you are in a position to consider the offer objectively and assess it against what you wanted originally. You will then be able to counter the offer with what is important to you and make concessions for issues which are maybe not as important to you.  Control your emotions at mediation It is understandable that this is an emotional time and you will be feeling stressed, anxious, nervous, angry and a myriad of other feelings. What is important at mediation, is that you do not allow for these feelings to take over and deter the main purpose of the mediation – to come to an agreement without the intervention of a court.   No doubt you will feel emotions of anxiety and nervousness while waiting for the mediator to return and provide good news after you have proposed an offer or counteroffer. However, this won’t happen early on in the day, so be prepared to go through a few rejections and emotional rollercoasters, before you are able to reach an agreement. Do not get disheartened; rather continue with the process and see it through to the end. If you feel your emotions are too overwhelming, you should request a 10 minute break so that you can go outside, get some fresh air, gather your thoughts and regroup. Be prepared to compromise If one party is not ready to compromise or to make concessions while negotiating, it is extremely unlikely that the matter will be resolved at mediation. This just causes more frustration between the parties as they feel they have wasted their time, money and energy to attend mediation. In order to alleviate this issue, you can prepare for mediation by brain storming ideas or solutions to move past the sticking points. In essence, how well your mediation goes will depend on how much each party is willing to compromise. Of course, neither party should compromise to the extent that they would not be able to live with the proposed consent orders . Ultimately, having legal representation will allow you to evaluate the benefits of having your matter resolved now or having the uncertainty of trial in the future.   In the majority of cases, the mediator will usually be able to get parties to within 85-90% of what each party offered. So, if you are in this situation, you can determine if the extra 10-15% is worth going to trial for. Usually it is not, after taking legal costs into consideration. Attend meditation with an open mind It’s very important to attend mediation with an open mind and not be solely focused on only what you want. Knowing what you want is important for the reasons outlined above. However, don’t let this take you away from your objective – having the matter resolved at mediation rather than going through the stress and added expense of a trial. So be open to new proposals or ‘out of the box’ solutions. Every matter is unique and we can’t resolve every matter the same way.  Therefore, attending mediation with an open mind while knowing what you want will place you in a good position for achieving a resolution at mediation. As mentioned in my previous article, “ Minimising costs in Family Law disputes ”, mediation is a wonderful process to ensure that there are still some financial resources left in the property pool for the parties to share.   Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2019/april/family-law-mediation/ Tue, 16 April 2019 00:00:00 Key performance indicators (KPIs) are a common method used by employers for measuring and guiding employee performance. Sometimes, however, KPIs are unreasonable and used by employers who seek to subject their staff to unrealistic workloads or to create an artificial reason to take disciplinary action. What you can do if my KPIs are unreasonable? Your right to complain and inquire about your employment is protected by the General Protections provisions of the Fair Work Act 2009 . If you think your targets are unachievable, your first step should be to raise this with your immediate supervisor, preferably in writing. You should discuss whether they meet the SMART guidelines: S pecific M easurable A ttainable R elevant T ime-bound This means your KPIs should: be clear on what they require you to do; be easily quantified with respect to whether they have been achieved or how well they have been achieved; be achievable and not demoralising; be linked to the goals of the business; and have clear and reasonable timeframes. Note that these are general guidelines only and are not considered to be legally binding. Your contract of employment may well create rights in relation to the content of KPIs and how they can be changed. If an employer breaches such a right you may be able to take action for breach of contract. If your employment is governed by a Modern Award or an Enterprise Agreement, there may be a relevant change management and consultation clause. In this case, your employer may be required to consult with you before they change your KPIs. If your employer has breached that clause, you may be able to initiate a dispute or take legal action regarding the breach. Can I be sacked for not achieving unreasonable KPIs? Contingent on your salary and award or agreement coverage, your employment may be protected by the unfair dismissal provisions of the Fair Work Act . One of the elements of an unfair dismissal is whether there was a valid reason for dismissal relating to capacity or conduct. The definition of ‘capacity’ in this context includes your work performance. If you are protected by unfair dismissal laws, it is generally not enough to have done your personal best. Rather, you must have performed satisfactorily according to objective standards. You must have also been appropriately warned regarding any concerns about your performance in specific terms, and provided with a reasonable opportunity to improve. Get help from an employment lawyer  If you have been sacked or disciplined because you have not met your KPIs, you should immediately speak with your union or seek independent legal advice from a lawyer experienced in employment law . You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au Today’s article was drafted by Research Clerk, Pedram Mohseni and settled by Principal in Employment Law, Joseph Kennedy. https://www.hallpayne.com.au/blog/rss/blog/2019/april/unreasonable-key-performance-indicators/ Tue, 09 April 2019 00:00:00 Updated 1 July 2025 The high-income threshold is one factor that may prevent an employee from being able to pursue an unfair dismissal application. Currently, if you earn more than $183,100.00 per year, you will fall above the high-income threshold set out in the Fair Work Act 2009 ( the Act ). In determining whether you are able to pursue an unfair dismissal application, there are two questions that you need to ask. What are my earnings? Am I covered by an award or agreement? What are earnings? Not all the money that is paid to you during the course of your employment will count as ‘earnings’ for the purpose of the high-income threshold. The following will count as ‘earnings’: your salary; the agreed value of any non-monetary benefits that you receive through your employment (such as the private use of a company car); and superannuation contributions over and above the compulsory minimum In contrast, compulsory superannuation contributions (known as superannuation guarantee payments), bonus payments or any other amounts that cannot be predetermined, will be excluded from the definition of ‘earnings’ under the Act.  In 2025 in Mark Duffy v Enermech Pty Limited [2025] FWC 1670, Commissioner Simpson found that retention payments contingent on Mr Duffy ‘maintaining or exceeding’ the employer’s standards were also excluded from the definition of ‘earnings’. Am I covered by an award or agreement? If you have determined that your ‘earnings’ are over the current high-income threshold, you will not be able to pursue an unfair dismissal application unless you are covered by an award or an agreement. There are over 120 awards in Australia and thousands of agreements that cover workers in the national employment system. Being ‘covered’ by an award or agreement is not the same as being paid pursuant to the terms of an award or agreement. In order to determine if you are ‘covered’ by an award or agreement, you will need to refer to the coverage clause in the applicable award or agreement. Assessing whether you are ‘covered’ by an award or agreement usually involves considering whether the instrument applies to your employer (usually based on the industry in which you work), and whether your role falls within the classifications set out in the instrument. The Fair Work Ombudsman can assist workers in determining whether they are covered by an award or an agreement. If you are covered by an award or an agreement and you believe your employment has been terminated unfairly, then the high-income threshold will not prevent you from pursuing an unfair dismissal application. Get help from an employment lawyer If you’ve been dismissed and you believe that dismissal is unfair or unreasonable, you should seek advice from a lawyer experienced in employment law.   Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2019/march/high-income-threshold/ Tue, 26 March 2019 00:00:00 The answer to that is fairly straight forward. You can apply for divorce after 12 months of separation. However as with all things in family law, it is rarely straight forward. This blog aims to cover everything you need to know about getting a divorce in Australia, starting with the ‘grounds for divorce’ . No Fault Divorce Prior to the Family Law Act 1975 (“the Act”), a party seeking divorce had to prove a matrimonial offence such as adultery, cruelty, desertion and so on, was committed. The Act established the principle of ‘no-fault’ divorce into Australian law. Therefore, the court no longer considers which party was at fault of the marriage breakdown. Accordingly, the only ground for divorce is the irretrievable breakdown of a marriage. This is often demonstrated by the parties living separately and apart for a period of 12 months.  Sometimes however, couples can be considered “separated” but living under the same roof. We mention this later in this article. A court will not make an order if it is satisfied that there is a reasonable likelihood of cohabitation being resumed. Does 12 months of separation have to be strictly consecutive? If you cohabitate again after separation, but only on one occasion and for less than three months, the courts will consider this as not substantial and the previous and future periods may be added together to calculate the total period of separation. If cohabitation was resumed after separation and lasted more than three months, then you will have to separate for a further 12 months before you can file for divorce. Generally, the more times you and your partner resume cohabitation, the court will be more inclined to find that there is a reasonable likelihood of cohabitation being resumed again. For clarification on a commonly asked question, the act of sexual intercourse does not constitute as resuming cohabitation . Although it is ordinarily a component of a marriage relationship, its occurrence would not alone mean a resumption of cohabitation. How does the court determine separation? Either party can instigate a separation by, for example, moving out of the family home. Or separation may also occur when under the one roof where parties have continued to reside in the same residence. The court has held that separation does not mean physical separation. It involves the breakdown of a matrimonial relationship. It can occur only where one or both spouses form the intention to end the relationship or not to resume the marital relationship and act on that intention. The court will examine the state of the matrimonial relationship before and after the alleged separation. Parties have been held not to have separated even after the husband left the matrimonial home . This was due to the parties acting as a married couple by maintaining a sexual relationship, attending social functions, staying in hotel rooms together and operating a joint bank account. Applying for divorce while still living together If you are applying for divorce when under the same roof there will be higher legal costs. This is due to the need to prove your case by preparing affidavit evidence for you and any collaborating witness(es). The affidavit evidence is used to explain why the parties continue to live under the one roof and note the change of the marital relationship. Marriages less than two years A divorce application cannot be filed if your marriage is less than 2 years from the date of marriage unless you also file a certificate with your application . The certificate must be obtained from an approved family counsellor stating that the parties have considered a reconciliation however, the marriage has broken down irretrievably. When am I free to marry again after divorce? Divorce orders will take effect one month after the order is made, at which time you will be free to remarry. What will a divorce cost? At the time of writing, the filing fee is $900 and $300 if an application for fee-reduction is granted . If you use a lawyer to assist with your divorce, they will also have a fee and this will be dependent on the law firm you choose. At Hall Payne we can provide you with an estimate of our fees at a free initial consultation. Effect of divorce on your Will Throughout Australia, except Western Australia, divorce revokes a gift of property or appointment of trusteeship made in a Will in favour of a spouse .  We always advise our family law clients that once you have separated, and definitely once you have divorced, it is prudent to update your Will. eDivorce The family law courts have moved to a completely electronic divorce file by means of e-Filing. You can lodge and pay for your divorce application online. If for some reason you have no internet, credit card, printer or scanner and cannot e-File your divorce application you can contact the family law courts during business hours to request a hard copy of the Divorce Kit to be posted to you. If you have separated or are considering separation or divorce, or you have any other family law issues you need assistance with, please get in touch directly with today’s blog writer, Gary Su . https://www.hallpayne.com.au/blog/rss/blog/2019/march/divorce-in-australia/ Tue, 19 March 2019 00:00:00 Starting a new job can be a daunting and exciting experience and it is easy to get caught up in the prospect of starting rather than focusing on your employment entitlements which underpin an employee’s employment. Understanding your employment contract is critical, before signing it. In some cases, employees are covered by collective agreements and Awards which set out their employment rights. If they are in a more senior role it is unlikely that they would be covered by a collective industrial instrument. Having said that, their employment would still be covered by the National Employment Standards (the minimum obligations of an employer) in the Fair Work Act . Negotiations can be important when starting a new job if you are seeking a higher salary or flexible working arrangements, but it is also important that you actually know what is included in, and understand your employment contract before you start work. This will help to minimise any future workplace disputes that might arise during the employment. Important clauses you should keep an eye out for include: Probation and notice periods Most employment contracts will include a probationary period which refers to a period of time that an employer can terminate the employment relationship with limited or no notice and without reason. If this was to occur there may be no legal recourse for the employee and could lead to significant financial consequences. The shorter the probationary period the sooner an employee can start permanent and secure employment. The courts have generally accepted that a reasonable probationary period is between 3 to 6 months. It is generally once the probationary period is over that any notice period contained within your contract will kick in. There are some legitimate reasons where an employee can terminate the employment where no notice is required. This is generally where a finding of serious misconduct is found against the employee. However, if the termination reason is not for serious misconduct the employer will have to give the employee a prescribed period of notice or pay the employee out for the relevant period of time. It is important to check how much notice an employee and the employer must give. Salary packages What an employee is to be paid for work they undertake may seem clear cut, however, it is important to really understand what is included in your salary. Some contracts will set out the salary as a whole package which includes not only your annual base rate of pay but also your superannuation and all other entitlements such as overtime. The employment contract should clearly stipulate what is included in the salary package. If the contract does include a salary package an employee should not only ask the question but try and negotiate for it to be clearly stated in the contract. Restrictive clauses Restrictive clauses are clauses that take effect after the termination of employment and are generally known as a restraint of trade clause . This clause can restrict an employee from soliciting clients and/or working with clients of your employer in your new employment; usually for a specified period of time. The main function of this clause is to protect the employer’s business, employees and its clients and not to punish the employee. Generally, the courts do not allow a restraint clause that will prevent the employee from making a living in their usual occupation in which they hold their experience and qualifications. The question the courts will consider will be whether the clause is reasonable dependent on the individual circumstances of each case. Reasonableness will depend on the length of the restraint clause and the size of the geographical area it covers. Given the legal complexity of these types of clauses, if your employment contract does include a restrictive clause it is important that you seek legal advice from a lawyer experienced in employment law, to understand your legal obligations. All employers are different and employment contracts are generally tailored to the individual. Because of this, it is important that you seek legal advice on any terms of the agreement that you are unsure about. This will not only give you the upper hand in any negotiations but will ensure you understand your legal obligations for the entirety of your employment. Get help from an employment lawyer  If you need advice or assistance in relation to your employment contract or any other employment issue, you can get in touch with the Hall Payne employment law team in your state.  Contacting Hall Payne Lawyers You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2019/march/employment-contract-content/ Tue, 12 March 2019 00:00:00 According to the RSPCA, domestic pet ownership in Australia is one of highest in world with 62% of Australian households owning pets. Accordingly, with over half of the Australian population having household pets, it’s important to understand who gets the family pets if a relationship breaks down and you separate. As with all aspects of Family Law, it’s impossible to provide you with a definitive answer to this without full knowledge of your family’s circumstances. In this blog, we’ve looked at three different scenarios and what the Family Law court’s position was in relation to the family pets. 1 – Pets with intrinsic value A leading family law case specifically related to ownership of household pets is Downey v Beale [2017] FCCA 316. This case provides an interesting insight into how Australian Courts view pets in Family Law disputes. Background In this case the parties have unanimously agreed on the majority of financial issues between them in their short two year marriage. The one thing they couldn’t agree on was who gets the family dog. The husband claimed that he was the owner of the dog since he purchased him before the marriage and he was registered in the husband’s name. The wife claimed the dog was purchased as a gift to her. Most importantly, the wife was able to prove she had paid for ongoing costs and upkeep of the pet such as vet bills, vaccinations etc. Outcome Unlike most property cases before the courts, neither party had prescribed a value to the family pet. Nevertheless, Justice Harman came to the determination that the family pet had to be treated as a ‘chattel’ , meaning this fell within the realms of property under the Family Law Act (1975). As a result, the court can only be required to make an order of what is ‘ just and equitable’ rather than the ‘ best interest’ principle (as is applied when dealing with childrens’ matters). In delivering his decision, Justice Harman found that the wife was able to provide evidence that she was solely responsible for the health and wellbeing of the family dog, both financially and non-financially. As a result, his honour found that the family dog should remain with the wife. In his judgement, Justice Harman found that section 75(2) factors may have been relevant if the dog was a guide dog, or some other kind of service animal. However, this did not apply in this situation. The husband’s claim that he was the registered owner was rejected by the court as this was done only 8 months after separation and on the knowledge that the wife was asserting her ownership to the dog. The fact that the husband purchased the dog was considered a contribution to the relationship rather than evidence of personal ownership.    2 – Pets with a nominated value The above case demonstrates that family pets are considered property under the Family Law Act . As such, it is extremely difficult to assign a value to property such as the family pet, unless however, that pet is used for racing or breeding purposes. In this circumstance, it would be quite possible to assign a value to the pet as determined in the case of Walmsley v Walmsley (No 3) [2009] . The court placed a value of $3,000 for the breeding dog and ordered that the dogs stay with the wife and that she pay the husband $3,000 as consideration. 3 – Pets and children A vastly contrasting set of circumstances from the above two cases, is where parties are in dispute about the family pet and children are involved. The relationship between the family dog and the child was the determining factor in deciding where the family pet should reside. In the case of Javis v Weston [2007] FamCA , Justice Moore determined that the dog which was actually owned by the father was to reside with the mother, as she was also given the primary custody of the child. The father argued that the court did not have any jurisdiction to make an order about the dog, since the dog was considered to be property and a court ordinarily can’t distribute property to a third party who is not part of the proceedings. Justice Moore determined that jurisdiction was found under the accrued, associated and inherent jurisdiction of the court. Most importantly, the primary rationale for the dog to reside with the child was: “ The boy is attached to the dog. The dog is to go with the boy” . This case highlights the court’s powers to make any orders as it sees fit, within the realms of the law of course. Ultimately, Justice Moore recognised and took into consideration the relationship between human and animals in determining where the family pet should live. These three different cases and circumstances illustrate the complexities of adding a pet to a Family Law dispute. In most circumstances the first situation would occur where one party purchases the pet and the other party is the primary caregiver to the pet. Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2019/march/family-pets-after-separation/ Mon, 04 March 2019 00:00:00 Revenge porn includes activities involving the sharing or posting of sexually explicit images of another person without their consent. The distribution of intimate personal recordings of sexual activity has been the recent subject of legislative changes in Queensland with a Bill proposing the introduction of new ‘revenge porn’ laws. There is a greater and greater likelihood that whatever we’re doing, wherever, and whenever we’re doing it, it is being done with a mobile device in hand, or, within easy reach, or earshot. This means that many of our most memorable and sometimes intimate personal moments are being committed to our electronic devices’ memory for our own private review and reminiscences. The new Queensland revenge porn laws The new Act is to be titled the Criminal Code (Non-consensual Sharing of Intimate Images) Amendment Act 2018 and amends Queensland’s Criminal Code to address the growing trend of ‘revenge porn’. Online sexual humiliation In September 2018, Rebecca Shearman, a Domestic Violence Service team leader, was speaking at a Queensland parliamentary committee hearing into proposed revenge porn laws. She cited one horrific example that she thought would not be covered by the current revenge porn legislation. In the example, an offender allegedly posted details about his ex-partner, including her phone number and the type of humiliation she would purportedly enjoy online. This prompted a flood of messages from strangers, including some with graphic descriptions of violent sex acts. ‘ She got 50 to 100 messages within a very short space of time, some of them were pretty demeaning and disgusting, but that's because he'd posted that that's what she liked. ’ Bigger and stiffer penalties In August 2018, Queensland’s Attorney-General and Minister for Justice Yvette D’Ath introduced the   Criminal Code (Non-consensual Sharing of Intimate Images) Amendment Bill 2018 (Qld) , delivering on election promise to address this disturbing trend. The Bill intends to make the sharing of intimate sexual images and recordings, without the consent of one person an offence under Queensland law. The offence is technically described as a misdemeanour – but don’t let that fool you. While we normally associate the expression, ‘misdemeanour’ with a ‘minor wrong’ rather than a more serious offence, the changes in the law mean that you might receive as much as a three year sentence (increased from the previous two years) if you’re found guilty of this type of offence. The proposed changes mean that, ‘distributing intimate images’, or, ‘observations or recordings in breach of privacy’ is an offence, and may be punished by a proposed new prison sentence of up to three years. Threats of exposure Additionally, even the threat of distributing the private images or materials is an offence punishable under the Criminal Code. The proposed penalty for threatening to (even if no such image exists), or exposing any sexual or intimate activity where an adult has a reasonable expectation of privacy, will be up to three years imprisonment. No artistic licence – altering and photoshopping images The new statutory regime also makes it an offence for a depiction to be altered, or ‘photoshopped’ in such a way as to appear in a sexually suggestive way. This “ includes an image that has been altered to appear to show any of the [se] things…and…includes an image…even if …digitally obscured ”. Commentary The entitlement to privacy and its intersection with modern technology, along with the basic human emotions of lust, hurt, and revenge has caused a shift in the legal tools designed to regulate standards of human behaviour and conduct. However, one thing remains common in the development of the law in respect of the standards of behaviour expected by society of its members; the new Act is merely a historical artefact, with the obvious standards of behaviour now enforceable by law, and their breach punishable by up to three years imprisonment in Queensland. If you’re a victim of revenge porn, you should seek the assistance of Queensland Police to investigate your options. If sexually explicit images of you have been posted on websites (including social media sites like Facebook, Twitter etc), you can contact those sites and request the images/posts be removed. Your mental health is extremely important. If you are suffering stress, anxiety, depression or any other mental illness, we strongly recommend you seek advice and assistance from an organisation like, for example, Beyond Blue . If you’ve been charged with a criminal offence, it’s important to seek legal advice from a lawyer experienced in criminal law. At the very least, you should understand your rights and entitlements. https://www.hallpayne.com.au/blog/rss/blog/2019/february/revenge-porn/ Tue, 26 February 2019 00:00:00 We’re delighted with our ongoing recognition in the prestigious Doyle’s Guide – this time as leading employment lawyers representing employees and trade unions. Queensland Principals, John Payne and Luke Tiley have again been named “  Leading Employment Lawyer (Employee & Trade Union Representation) - Queensland 2019 ”. And NSW Principals, Joseph Kennedy and Luke Forsyth have again been named Leading Employment Lawyer (Employee & Trade Union Representation) Rankings - New South Wales 2019 . Each year, Doyle’s Guide releases results on top lawyers and top law firms across a variety of practice areas. Nominees are voted by their peers across the profession. We’re proud to be recognised three years running now, securing our reputation in this field of employment law in particular. In 2018 we received a number of awards across employment law as well as Leading Asbestos & Dust Diseases Compensation Law (Plaintiff) – Queensland , for both the firm and for Principal, Linda Brangan . You can view all our 2018 awards in this blog post. As you may be aware, our employment team has had some significant wins over the years and you can view many of them on the Hall Payne Blog. The hard work, dedication and passion for workers’ rights, makes these new 2019 recognition awards all the more fulfilling. We offer our sincere congratulations to our recent award-winners; John Payne  Luke Tiley, Joseph Kennedy and Luke Forsyth. Doyle’s Awards notification for 2019 have only just begun and we’ll be keeping a close eye on movements with other practice areas, throughout the year. In the meantime, if you have an employment law or industrial relations matter that you need advice or assistance with, you should get in touch with the Hall Payne award-winning Employment & Industrial Law team in any one of our offices. https://www.hallpayne.com.au/blog/rss/blog/2019/february/doyles-awards-2019/ Mon, 18 February 2019 00:00:00 At Hall Payne Lawyers, we work with clients to maximise their entitlements under a variety of different insurance policies. Many clients seek advice from us in relation to superannuation death benefits, and TPD claims. We are extremely proud of a matter where we negotiated a payment to adult children who had been left out of a superannuation distribution after the death of a parent. What is the purpose of superannuation? Most people understand that the primary purpose of superannuation is to provide a long-term savings plan for one’s retirement. However, many people do not know that their superannuation may include additional benefits, including different forms of insurance.   One benefit in most superannuation funds is life insurance, that pays out as part of the total ‘death benefit’. What are death benefits in superannuation? A superannuation death benefit is a payment made to dependent beneficiaries or to the trustee of a deceased estate after the member has died. It consists of the superannuation balance plus additional benefits payable under the policy. The death benefit is allocated by the trustee of the superannuation fund amongst the superannuation beneficiaries.  In order to have your super death benefit paid to the person(s) you would like to receive it, you need to provide a written ‘binding death benefit nomination’ form to the superannuation trustee (a form available from your super fund). This directs the superannuation trustee to pay the death benefit to specific individuals. These nominations usually lapse after 3 years and need to be renewed. You need to be careful that the persons you wish to nominate are allowed under the superannuation trust deed or your nomination may fail. Care should be taken to ensure that you nominate allowable superannuation beneficiaries or your nomination may be void. If you don’t make a nomination the trustee has the discretion as to whom the payments will be made. Win for adult children of deceased mother In the case we referenced earlier, our clients were children of their deceased mother. Whilst alive, their mother made a promise to include them as beneficiaries of her superannuation fund in the event of her death. However, when their mother died and the children claimed part of the death benefit, the superannuation trustee made a decision that the whole death benefit was to be paid to their step-father. We helped our clients pursue, and ultimately win, their rights. Get help from a superannuation and insurance lawyer If you find that you have been left out of a Will, or a distribution of superannuation and death benefit monies or private insurance death benefits, contact Hall Payne to help you make a claim for your fair share. https://www.hallpayne.com.au/blog/rss/blog/2019/february/super-death-benefit-win/ Tue, 12 February 2019 00:00:00 We are delighted to announce the promotion of   Ellie Bassingthwaighte , to Associate at Hall Payne Lawyers. Ellie is a member of our   Employment & Industrial Law   team in our Brisbane office and has been with the firm since 2017. Before joining us, Ellie’s experience in a boutique industrial law firm together with her time at the Fair Work Commission has cemented her career as a strong and committed workers’ rights advocate. She is passionate about promoting access to justice, no matter your social, educational or financial circumstances. HPL Director   Luke Tiley   has this to say about Ellie: “Not only is Ellie an exceptional young lawyer in her chosen field of practice, she is driven to continual improvement and development. This is evident right now as she undertakes her Masters of Laws (focus on alternative dispute resolution) and through her participation in the Australian Labour Law Association. Ellie is a valued part of our employment & industrial team and we look forward to working with her for years to come.” And if that’s not enough, she also volunteers with a number of community legal centres including Caxton Legal Centre, the Women’s Legal Service and the LGBTI Legal Service. The Directors and staff of Hall Payne take pride and joy in congratulating Ellie on her well-deserved promotion. https://www.hallpayne.com.au/blog/rss/blog/2019/february/ellie-bassingthwaighte-promotion/ Mon, 04 February 2019 00:00:00 Work related injuries are an all-too-common occurrence in Australian workplaces. One may assume that a fair and equitable   workers compensation   scheme would assist injured workers during their period of recovery, including support for lost income as well as necessary medical treatment. Unfortunately, complex claims may leave injured workers disadvantaged and unsupported. At Hall Payne Lawyers, we help workers navigate the complexities of workers compensation rules and laws. Overview of case Our client William was caught up in a legal predicament relating to his workers compensation claim. William was injured at work while carrying heavy sheets of plaster. He developed a hernia. Doctors warned him that this hernia could worsen if left untreated. William required surgery, and was off work for several months. William’s treating GP and other specialists considered that the hernia resulted from the heavy lifting. Disregarding the overwhelming medical opinion to the contrary, the workers’ compensation insurer rejected William’s claim for compensation relying on the opinion of one doctor to support its decision. The impact of such decisions on vulnerable people cannot be overstated. The appeal of the workers compensation insurer’s decision Hall Payne appealed the insurer’s decision to the Workers’ Compensation Regulator. We gathered further medical material, and provided persuasive written submissions to the Regulator on William’s behalf. We were successful in overturning the insurer’s decision to reject the claim. William now has an accepted claim for workers’ compensation for his injury, which is a great relief for him. As a result of our success, William received his back-pay for lost income for the entirety of his time off work, and his medical treatment was also covered. William’s case represents just one of countless examples of workers compensation disputes that Hall Payne deals with every day. Get help from a worker's compensation lawyer If you have been denied your workers’ compensation entitlements, we can help. If you’d like advice or assistance in relation to   workers compensation   or any other   personal compensation   matter, feel free to get in touch directly with today’s blog writer,   Megan Stanley . https://www.hallpayne.com.au/blog/rss/blog/2019/january/insurer-medical-evidence-rejected/ Tue, 29 January 2019 00:00:00 The content of this article was updated on 25 January 2022 Consent Orders are a written agreement approved by the court. They can be used for agreements about the children as well as financial matters such as property settlement and spousal maintenance. In short, if you’ve decided to obtain final Consent Orders, congratulations; we believe this is a good step. You will escape the expensive and uncertain path of court proceedings and trial. The steps to obtaining Consent Orders? To ensure any agreement you have reached with your former spouse is enforceable, you should have a lawyer who is experienced in family law, draft an Application for Consent Orders to the Federal Circuit and Family Court of Australia. This is to deter your former partner from contravening your agreement as you will be able to have Consent Orders legally enforced.  An experienced family lawyer will be able to advise you of the practicalities of your proposed agreement and highlight any issues which you may not have considered. However most importantly, at Hall Payne we will advise you if you are getting the short end of the stick in regard to your proposed parenting arrangements or property settlement. If your informal agreement is uncontested and neither of you have filed an initiating application or application for Consent Orders with the court, there are two ways to formalise your agreement . In Family Law matters where you are working through financial matters after the relationship has broken down, we recommend you seek Consent Orders rather than a Binding Financial Agreements (BFA).   This is because Consent Orders are much more cost effective and offer more certainty in the long term. We also understand that in very special circumstances, a BFA may be more suitable. However, where parties have reached an agreement and no further negotiations are required Hall Payne can offer a fixed fee for having your Consent Orders finalised, thereby, providing you with financial certainty and reducing your legal costs. Since Consent Orders are the primary way forward let’s discuss the process below: Drafting the Orders and Application The essence of your agreement with your former partner will be drafted as a Consent Order, along with an Application for Consent Orders and for matters relating to children, a Notice of Risk.  The Application for Consent Orders itself requires a significant amount of disclosure and information from both parties. Since the Application is the first time a Court is considering your matter, the Application needs to provide the court with the necessary information to satisfy it that your proposed Orders are: just and equitable for property and financial matters; and if a child is involved, the proposed Orders are in the best interests of the child. Filing the Application in the Federal Circuit and Family Court Once the Application and Orders have been agreed to by both parties, we will strongly advise your former partner to seek independent legal advice before signing. However, this is not mandated by the courts. When both parties have signed the Application and the Orders it will have to be filed with the Federal Circuit and Family Court of Australia and any court fees paid. As at writing this article, there is a $170 court filing fee, or $0 if you are eligible for an exemption . After filing and payment of fees, it will take approximately two or three weeks for the Orders to be finalised by the Registrar. Once the agreement is finalised, Consent Orders will be issued by the court and enforceable at law. How to ensure your eligibility for Consent Orders To be eligible for this cost-effective process, you must ensure the following: You must lodge your application within the legal time frames - within 12 months of a divorce or 2 years of the breakdown of a de facto relationship; Both parties must agree to the Orders in their entirety; For Consent Orders relating to children, a Notice of Risk has to be filed; Both parties must consider their legal obligations and consequences of breaching the Orders; and Both parties must have a dispute resolution mechanism in place to ensure that the parties follow the Orders. Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2019/january/family-law-consent-orders/ Mon, 21 January 2019 00:00:00 Jamie Colwell was employed by Top Cut Foods as a knife hand/butcher. On 20 January 2014, he was assaulted by a fellow worker, Parks, which caused him to sustain a psychiatric injury, post-traumatic stress disorder (“PTSD”). Colwell had previously had interactions with Parks. He and Parks worked on adjoining stations within 2 metres of each other. Their supervisor, Hall, worked in the immediate vicinity. Colwell described Parks as a very intimidating person, keen to portray himself as violent and aggressive. This was not entirely accepted by his Honour Judge Kent QC DCJ. However, it was accepted that Parks had a history of physical and verbal violence, including: Dismissed by Top Cut Foods in the 1990s because of a verbal argument; Imprisoned for grievous bodily harm (“GBH”) with intent (racially motivated) and a number of assault charges, committed in the UK. For these offences, he was sentenced to 4.5 years imprisonment and served 3.5; Two violent events whilst working at a Gold Coast Bakery (after he returned to Australia); and Incidents of arguing with workmates whilst working for Australian Beef. The claim – breach of employer’s duty of care Colwell argued that Top Cut Foods breached its duty of care to him by failing to provide a safe place of work. He alleged that they failed to address the threat Parks presented to him, despite having adequate warning. Colwell argued that Top Cut Foods had been warned that Parks conduct posed a risk to him on four separate occasions: Colwell raised concerns about Parks to Hall in December 2013 (“the First Warning”); Parks made a complaint to Hall about Colwell on 14 January 2014 (“the Second Warning”); On 17 January 2014 (the working day prior to the day of the incident), there had been an angry exchange between Colwell and Parks (“the Third Warning”); and Just prior to the incident on 20 January 2014, Hall witnessed Parks loudly abusing Colwell, which ultimately lead to the assault (“the Fourth Warning”). The First Warning Colwell complained to Hall that he had witnessed Parks crying and shaking over his work station. Colwell stated that he was concerned about the Parks’ mental state, referring to him as a “ticking time bomb”. His Honour did not accept the entirety of Colwell’s evidence, however did accept that Colwell had advised Hall of some concern he had with Parks at that time. The Second Warning Parks gave evidence that Colwell has annoyed him on at least one occasion prior to the incident. He was annoyed by Colwell’s poor attitude towards Top Cut Foods. He advised Hall that he wanted to be moved away from Colwell as he was “close to losing it” with him. His Honour accepted Parks’ account. The Third Warning During his shift, Parks was very agitated and aggressive. He was verbally threatening violence to an unspecified individual, when Colwell (who was concerned it was directed at him) said “it isn’t me, is it?”. Parks responded “you’re not a black c**t are you?!” The Fourth Warning Parks attempted to apologise for the incident giving rise to the Third Warning. Colwell told him to “Shut up, I’m not into your s**t”, which provoked Parks, who began to verbally abuse him. Hall saw this and told both of them to go to the office. On the way to the office, Parks punched Colwell in the head multiple times and also punched a co-worker who attempted to separate them. Parks was dismissed that day. He also pleaded guilty to assault. Employer’s knowledge of Parks’ criminal conviction Also in issue was whether Top Cut Foods was aware of Parks’ criminal history (specifically, the GBH/assault offences). His Honour held they were aware, although accepted that Parks did not advise of this (or his other employment issues) prior to his employment. However, at his interview, the HR Manager asked Parks if “he had changed”. The HR Manager was also held to have made jokes to Parks similar to “have you killed/bashed anyone yet?” Further, Hall stated in evidence that he was aware that Parks had been in prison. This, his Honour held, demonstrated that Top Cut Foods knew, although not in detail, of Parks history. The plaintiff’s submission Colwell submitted that, given the above, Top Cut Foods breached their duty of care by failing to separate Parks and himself before 17 January 2014. This, Colwell argued, would have meant that the Third and Fourth Warnings and, consequently, the incident, would not have occurred. Alternatively, Colwell argued that not separating them after the Fourth Warning (instead, sending them to the office together) was poor conflict management on the part of Hall, which lead to the incident. Colwell further submitted that the risk of Parks assaulting him was reasonably foreseeable. Top Cut Foods’ submissions Top Cut Foods’ submissions were largely disputing facts, arguing that Parks’ assault was inexplicable; the First, Second, Third and Fourth Warnings were insufficient to make them believe that there was a risk that Colwell would be assaulted. Findings on Liability The applicable law was largely uncontroversial. However, Top Cut Foods argued that mere proof that there should have been an appreciation that Colwell was annoyed or distressed by Parks’ conduct is not, in and of itself, sufficient to establish liability. However, his Honour held that the facts go further than “annoyance”; Colwell and Parks had both requested to be separated from each other. Based on the above factual findings, the Judge held that the circumstances did give rise to a duty to take reasonable steps to avoid the foreseeable risk of violence by Parks towards Colwell. That duty of care was breached by failing to separate Colwell and Parks before 17 January 2014 or, alternatively, failing to separate them after their argument on 20 January 2014. His Honour stated: “…these are not findings made with the benefit of hindsight, rather the circumstances and events prior to the assault were sufficient to put [Top Cut Foods] on notice of the risk that [Parks] presented. This arose through the state of knowledge in particular of [Hall], given the warning events which had occurred. The remedial action to avoid the risk was simple and inexpensive, thus failing to act was a breach of duty and damage followed.” Colwell was awarded almost $585,000 in damages as a result of this workplace assault and the breach of duty by Top Cut Foods. You can read the   full court judgement here . If you require advice or assistance in relation to workplace issues, feel free to get in touch directly with today’s blog writer, Solicitor in   Workers Compensation ,   Jessica Hodge . https://www.hallpayne.com.au/blog/rss/blog/2019/january/employer-breach-of-duty/ Mon, 14 January 2019 00:00:00 If you’ve been convicted of a   criminal offence , you will usually then have a criminal record. This can cause a variety of problems, many of which can rear their head at unfortunate times. A criminal record can adversely affect employment prospects, international travel plans, and even the ability to coach your kid’s footy team. Fortunately, as a general rule, many criminal convictions will not remain on your record forever. Below we consider three circumstances in which a conviction may not need to be disclosed, or may not appear on your criminal record at all. Conviction not recorded In some circumstances, though you may have been convicted of an offence, a conviction will not have been recorded on your criminal record. Sections 12(1) and (2) of the   Penalties and Sentences Act   1992 (Qld)   provide a court with the discretion to   not   record a conviction. In determining whether to record a conviction, a court must have regard to: the nature of the offence; the offender’s character and age; and the impact that recording a conviction will have on the offender’s economic or social wellbeing and employment prospects. Many of the circumstances and arguments that may be persuasive to a court may not be obvious to a lay person. For this reason, if you have been charged with an offence, we recommend that you seek legal advice from a lawyer experienced in criminal law in order to improve your chance of avoiding the recording of a conviction. What is the spent convictions scheme? Queensland has a ‘spent convictions’ scheme. What this means is that after a certain period, many convictions will not need to be disclosed and are considered ‘spent’. In many circumstances, it will be unlawful for another person to disclose a spent conviction you may have. In order to be eligible to be a spent conviction, any term of imprisonment ordered as a result of the conviction must have been less than 30 months. A suspended sentence will count towards the 30 months, even if no custodial sentence is actually served. So for example, if your sentence is 32 months, wholly suspended, this cannot be considered for a ‘spent conviction’. How long before a conviction becomes spent? The amount of time that must pass before a conviction becomes spent is called the ‘rehabilitation period’. If you are convicted by a Magistrate, the rehabilitation period will be 5 years. If you are convicted by the District or Supreme Court the rehabilitation period will be 10 years. Regardless of the court, it is also necessary that you have completed any restitution ordered by the court and that you have not been convicted of a subsequent offence within the rehabilitation period. Are there any exceptions to the Queensland spent convictions scheme? You should note that exceptions to the scheme do apply. Most of these exceptions are contained in section 9A of the   Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld)   and include, for example, applicants for the following positions: police officer; state school staff or teacher; and security officer. Not all exceptions are included under section 9A. For example, a nurse seeking registration must disclose all convictions, regardless of whether they are spent, when applying to the Australian Health Practitioner Regulation Agency (‘ AHPRA ’). Expunged convictions In Queensland, there is a narrow range of convictions that are eligible to be expunged from a person’s criminal record. If a conviction is expunged, that means that it is wiped from your record. Expungement exists so that people that have been convicted of offences that no longer exist, primarily those relating to male homosexual activity, are relieved of the burden of a criminal record. For a conviction to be expunged, the offending must not have involved conduct which continues to be an offence in Queensland. It is also possible to apply for expungement on behalf of a deceased person. You do not need legal representation to apply for expungement., In most cases all that is necessary is the filing of an application form. However, in more complex cases, such as where an application has been refused, it is recommended that you seek legal advice. If you’ve been charged and/or convicted with a criminal offence and you need advice or assistance, you should contact a member of our   criminal law team . Today’s blog has been written by Alexander Williams. https://www.hallpayne.com.au/blog/rss/blog/2019/january/criminal-records/ Tue, 08 January 2019 00:00:00 It’s been a common query in recent times; do the Police have the right to access content on your mobile phone? It’s not clear cut, but here’s our advice. Your mobile phone might hold what you consider to be private information and not necessarily available to anyone else. In a   case in the US in 2014 , this view that it is “private”, was one of the reasons why a search of a phone without a warrant was “unconstitutional”. Further, any evidence found on a mobile wasn’t capable of being used against the owner of the phone. How does this hold up in Australia? In Australia, and particularly Queensland, that’s not the story. If you find yourself subject to a Police search, under an official Police warrant, with a Police officer searching your home, residence, office or car, you can now be compelled to give the Police the PIN code of your mobile telephone or other electronic device. Recent amendments to the   Police Powers and Responsibilities Act   mean that it’s now an offence to refuse to give Police the P.I.N. to unlock your mobile phone. Section 154A of the   Police Powers and Responsibilities Act , make it a criminal offence under section 205 of the Criminal Code if you refuse to provide the PIN to the Police. Section 205 carries a maximum penalty of five years imprisonment. In a   recent Queensland Supreme Court ruling   about the Queensland police’s power to compel you to provide your mobile telephone’s PIN code, one Queensland Supreme Court Judge said: “The potential for self-incrimination by a suspect should that person answer questions acknowledging ownership or possession of the phone, or knowledge of the access information or familiarity with how to use the phone, is obvious .” Reading carefully, his honour Judge North seems to be saying that once you acknowledge owning the mobile telephone, and then you refuse to provide the Police access to the device, you’re likely going to be in trouble. Do the Judge’s comments provide a legal loophole or allow you to disobey a lawful direction or a search warrant? Well, that’s not really clear and no-one, especially a lawyer, should ever tell you how to break the law, or how to avoid the legal consequences of unlawful or criminal behaviour. Judge North’s comments do make it clear, however, that if you answer questions where you acknowledge ownership of a mobile phone, then there is a potential for self-incrimination. We have previously written about your “ Right to Silence ” if interviewed or arrested by Police. In the early stages of a Police investigation, you cannot be compelled to answer any questions beyond your name, address and your birthday. These recent changes to the law regarding mobile phone access by Police, make that right to silence, and your use of it, even more important. If you’re being investigated for a criminal offence or you’ve been charged with a criminal offence and you are seeking legal representation, please contact us . https://www.hallpayne.com.au/blog/rss/blog/2019/january/mobile-phone-access-by-police/ Wed, 02 January 2019 00:00:00 In this day and age many people are only interested in one thing…   “What is it going to cost me?”.   And this can be particularly relevant to the cost of   Family Law   disputes and litigation. Recent examples of outrageous costs in Family Law Studies from the   Family Law Quarterly   have reported that the legal costs in some of the child relocation cases were in excess of $100,000 with an upper limit of $450,000. The   Financial Review reported   that Sydney lawyers charged an extravagant $860,000 for legal costs and disbursements. The parties were only disputing property and childrens’ matters which are common issues in the majority of Family Law disputes. Therefore, it is evident that the legal costs in your Family Law matter have the ability to blow out to eye-watering amounts if your matter is not correctly managed by prudent and experienced family lawyers. The general rule in Family Law matters is that each party bears their own costs of the proceedings. So, you pay your costs and your former partner pays theirs. As such, you need to be well aware of ways to minimise your costs in your Family Law dispute. Today’s blog writer has “3 Commandments” to minimise your legal costs. Be organised This is a fairly broad statement. However, for the purposes of this blog we define being organised as: Obtaining legal advice early regarding your dispute so that you are realistic about your legal position when you begin negotiations and to ensure that you are within the legal time limits of making a claim. Writing down your story (keeping good notes with dates and times) so that we will have something reliable to refer to when we are drafting letters or your affidavit when required. This also assists us in the initial consultation by allowing us to ask for clarification or more details regarding certain circumstances of your case. Gather your own evidence and documents to provide to your lawyer in a well organised and chronological order. Evidence such as bank statements, tax returns, trusts deeds, payslips, emails, etc. Don’t call your solicitors every time something pops into your head. Unless it’s an emergency, write your thoughts or questions and bring these up with your solicitor the next time you meet. Attend mediation Mediation is a wonderful process, in which you will be in control to settle your matter promptly, without the excessive costs and uncertainty of a trial. Another wonderful aspect of mediation is that it is confidential. So, any offers made will not advance your case or be detrimental to it. At mediation, it is important to remain relaxed and realistic. You may receive an initial offer from the other side which may infuriate you and make you want to walk out.   DON’T ; you paid good money to the mediators so, don’t waste your money by walking out, or being theatrical. Instead, relax and discuss, with your solicitors, a genuine and realistic counter offer. If a family report has been completed, read it carefully and follow the advice contained within the report; Judges will usually do the same. Ultimately, you would want to make your best realistic offer at mediation with the view that it can be settled that day and avoid any further costs and uncertainty of trial. Be realistic and trust your lawyers advice After discussions with your lawyers, have a realistic goal of what result you would like to achieve. We lawyers often call this the “acceptable range”. This is important for two reasons. Firstly, it allows you to focus on the relevant facts or issues in dispute and for you to agree or propose an offer that is both realistic and within the acceptable range. This is far better than being narrowly focused on the ‘ principle of the matter’   or ‘revenge’. Secondly, having a vision lets you make sensible decisions, in your best interests and with the highest potential of finalising your matter earlier, rather than later. This will allow you to start the next chapter of your life sooner and from a much healthier financial position. Hall Payne no longer provides services in family law If you require assistance with your family law matter, we recommend you contact the relevant Law Society in your State or Territory for a referral: Queensland : 1300 367 757 NSW : 02 9926 0333 Victoria :  03 9607 9311 Tasmania :  03 6234 4133 South Australia :  08 8229 0200 Western Australia :  08 9324 8600 Northern Territory :  08 8981 5104 ACT : 02 6274 0300 https://www.hallpayne.com.au/blog/rss/blog/2018/december/how-to-minimise-your-costs-in-family-law-disputes/ Thu, 27 December 2018 00:00:00 If you’ve been charged by Police and have a court hearing date in the Magistrate’s Court, you will have options to plead guilty or not guilty. It’s important that you have sought legal advice and assistance prior to your first court appearance. Prior to being charged with any crime or offence, Police will have initially spoken with you and/or formally interviewed you. Learn about your rights in relation to speaking to Police, in our previous blog “ If Police want to speak with me, do I have to answer their questions? ”. You can plead guilty or not guilty If you plead not guilty, your matter will proceed to trial. Sometimes, however, entering a plea of guilty to a charge is the best way to resolve the matters quickly and efficiently. You should always seek legal advice from a lawyer experienced in criminal law, regarding your plea options. If your lawyer advises that a plea of guilty is the best way to resolve your matter and you decide to follow that advice, you need to remember a few things to ensure your case can be finalised appropriately and you can move on with your life. What if I’m innocent and want to plead guilty anyway? Rarely, entering what solicitors call a “ convenience plea ” is a cost-effective way to finalise your matter in spite of not being guilty. In some states of Australia, legal practitioners find this approach problematic and are advised to avoid assisting defendants wishing to make a guilty plea whilst having told their lawyer they are in fact innocent.  In Queensland, a “convenience” guilty plea is possible, with our Court of Appeal saying: ”Experience shows that some people charged with serious offences …wish both to maintain to their lawyers that they are actually innocent and also to plead guilty. In those circumstances, it is imperative that these lawyers ensure that no plea be taken until (written) instructions have been obtained in which the person charged describes a wish or willingness to plead guilty, and an understanding that by so doing, he or she will be admitting guilt. If those instructions are obtained and adhered to a lawyer may properly appear on the plea.” Why do some people plead guilty when they say they are innocent? Sometimes, people may not be able to afford to defend the charges. If you find yourself in this situation, you should consider seeking Legal Aid. Some people feel that the evidence is too strong to argue against or they simply don’t wish to bring any more publicity or attention to the matter. Very careful consideration is called for when thinking about a “convenience plea”; both on the part of the solicitor and the client in the case. You need to carefully consider the implications of a guilty plea when you say you are not guilty: Your potential punishment which could have significant implications on you and your family; Your previous criminal record and the fact that you face the possibility of having a criminal record after pleading guilty; The potential loss of employment; and Any financial burden a guilty plea could have on you etc. Will a guilty plea reduce my penalty or sentence? Some Australian states have made it part of their state-based law that entering an early plea of guilty will also mean that the court sentencing you might give you a discount on the penalty they impose. For example, in South Australia, the law says that you may receive up to a 40% reduction in your sentence for an early guilty plea; “not more than 4 weeks after the defendant’s first court appearance in relation to the relevant offence or offences, the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%” In Queensland, the   Penalties and Sentencing Act   sets out that a plea of guilty should be taken into account when imposing a sentence. Where a guilty plea has been entered, there are variations of how much discount can be given for a “timely” or ‘early’ plea of guilty. The safest estimate is somewhere between 10% and 25% discount. It is, however, important to remember that Queensland courts have made it very clear that working out how to punish you is not a ‘mathematical’ process and the discount will depend on several other factors. This could include the way the Magistrate or Judge chooses to look at the matter as a whole. It goes without saying that in admitting your guilt (particularly if you are in fact, guilty of the offences you are charged with), showing remorse and taking your punishment as a responsible member of society might be reasons that could result in a more lenient sentence. This is opposed to pleading not guilty, putting the Police and the court to the time and expense of a trial and being found guilty anyway. In Summary Remember, you have a “ right to silence ” Get legal advice and representation as soon as possible A guilty plea is an admission of guilt Sometimes, you might think about pleading guilty for reasons other than being guilty If you’re going to plead guilty for any reason, do it early If you’re facing charges that you need to enter a plea for and you need legal advice or assistance, please get in touch with us . https://www.hallpayne.com.au/blog/rss/blog/2018/december/pleading-guilty-magistrates-court/ Tue, 18 December 2018 00:00:00 Regular readers of the Hall Payne blog will recall our April 2018 article “ Rio Tinto fined again for breach of Hail Creek enterprise agreement ”. That story related to breach of enterprise agreement proceedings that were successfully brought against Hail Creek Coal Pty Ltd (the company) by our client the CFMMEU. What were the Hail Creek breaches of the enterprise agreement? The breaches concerned a roster change, which was implemented by the company together with a unilateral reduction in the applicable roster allowance for employees. We won in the first instance but the decision was appealed Working closely with our client, the the CFMMEU, and as reported back in April this year, we were   successful at first instance . However, the company commenced an appeal proceeding. The appeal was heard by a Full Court of the Federal Court in August 2018 and a decision handed down on 2 November 2018. The appeal was dismissed. The result of this decision for the CFMMEU members Following the decision of the Full Court the company was required to pay compensation to the affected CFMMEU members in the amount of $198,341.69, together with $1,192.88 interest which accrued on the compensation during the appeal proceeding. We also understand that dozens of other employees who were not the subject of the proceeding also received back pay. This is an excellent result for the union and its members. The compensation and backpay amounts were in addition to the fine of $45,540 handed down on Hail Creek Coal. This fine was previously paid directly to the CFMMEU by the company. As indicated in our article of June 2016, “ CFMEU public interest role praised as Court finds against Rio Tinto ”, paying the fine directly to the union in this case is in stark contrast to recent Federal Circuit Court decisions where similar penalties (by way of fines) were ordered to be paid to the Commonwealth rather than the union. Further, during the litigation the disputed roster and roster allowance change was rescinded. This litigation represents an excellent outcome for the CFMMEU and its members who work at the Hail Creek Mine and has the potential to have a positive impact across the mining industry generally. Get help from an employment lawyer  If you feel your workplace entitlements are being breached in any way, you should seek advice from your union or a lawyer experienced in employment law. You can get in touch directly with today’s blog writer, Principal in Workplace Relations Law,   Luke Tiley . https://www.hallpayne.com.au/blog/rss/blog/2018/december/backpay-win-hail-creek-miners/ Thu, 13 December 2018 00:00:00 Most Australian workers will have superannuation. They will have a fund balance which comprises contributions made over their years of employment. Most will have insurance options; primarily   TPD insurance   and some, income protection. And some will have pensions payable upon retirement. At Hall Payne, we often work closely with clients and their families to maximise their entitlement to compensation following catastrophic injury and disease. Many clients suffer ailments that will, tragically, result in a premature death. Calculating financial losses as a result of reduced life expectancy can be particularly complicated. This was evidenced by the recent High Court decision in   Amaca Pty Ltd v Latz   [2018] HCA 22. Background of   Amaca v Latz This case involved a gentleman (Mr Latz) who was diagnosed with terminal malignant mesothelioma in October 2016 as a result of exposure to asbestos products. These products had been manufactured by the defendant, Amaca. The defendant had accepted liability for Mr Latz’ mesothelioma, and it was clear that this horrible disease would lead to his premature death. It was estimated his life would be cut short by around 16 years due to his illness. Mr Latz had already retired at the time of the diagnosis. This meant that he could not claim for loss of income through workers compensation, which he would have been able to claim if he was still working at the time of the diagnosis. However, because of his past employment as a South Australian Public Servant, he was entitled to a State superannuation pension which equated to two-thirds of his salary for the remainder of his life. Under the scheme, his wife would then be entitled to the State Pension for the remainder of her life (called a Reversionary Pension). Mr Lutz was also entitled to a partial aged pension from Centrelink (Aged Pension). The issue in dispute Mr Latz’ dispute made its way to the High Court (which is the highest court in Australia) due to a dispute about whether the lost superannuation pension benefits constituted a “loss of earning capacity”. Mr Latz argued that because of his reduced life expectancy, he was losing his ability to claim the pensions (both the Aged Pension and his Superannuation pension) and this should be taken into account in assessing his entitlement to compensation. Amaca denied the claim. Prior to the High Court appeal, the judge at the earlier trial awarded Mr Latz $500,000 for future earning capacity, representing the value of the State Pension and the Aged Pension for the 16 years his life would be cut short. The trial judge at that earlier hearing noted that the fundamental purpose of compensation is to try and place a plaintiff (the injured person) in the financial position they would have been in but for the negligence of the defendant. Therefore, as Mr Latz would have continued to receive both pensions for the remainder of his life, he was entitled to recover it. The initial appeal Amaca appealed the judge’s decision, arguing that the lost pension entitlements were not recognised as claimable compensation under Australian law. On initial appeal, adjustments were made to the amount of compensation to take into account deductions to the Reversionary Pension (from which his wife would benefit), however the appeal judge rejected Amaca’s primary contentions that Mr Latz was not entitled to a claim. Amaca then proceeded to the High Court of Australia. High Court decision The High Court held that superannuation benefits should be treated similarly to wages (including loss of earning capacity). The Court determined that the State Pension payments were a form of delayed remuneration. Mr Latz’ illness and likely premature death equated to a clear loss of his ability to receive the State Pension. However, the High Court held that the Aged Pension was “in stark contrast” to the State Pension. This was   not   a part of remuneration or a capital asset and could not, therefore, be considered “earning capacity”. What is the effect of this High Court decision? As a result of this decision, claimants whose lives will be “cut short” as a result of their injury or illness will be entitled to their lost superannuation pension benefits for the period in which their life span has been reduced. This decision is a win for injured claimants and their families who are already dealing with the distress associated with their loved one’s reduced life expectancy. If you have suffered an illness or injury and want to investigate your superannuation or other insurance options for a claim, feel free to get in touch directly   Leanne Taylor   in our Superannuation department. https://www.hallpayne.com.au/blog/rss/blog/2018/december/lost-super-high-court-win/ Tue, 11 December 2018 00:00:00 As part of general Police investigations into criminal offences, they will want to interview a number of people about the matter. This could include witnesses, experts and suspects. If you think you are a suspect, and Police want to interview you, it’s important to know your rights. Do I have to answer any questions put to me by the Police? At this initial stage of a Police investigation, you cannot be compelled to answer any questions beyond your name, address and your birthday. Answering any other questions is something you shouldn’t do until you’ve spoken to a solicitor and received expert advice about your options. Likewise, unless you’re arrested, you can’t be compelled to accompany police to the Police station. You can simply ask if you have been arrested to determine if you must attend the Police station. Protecting your rights when being spoken to by Police If Police come to your home or when you are at work or in a public place, it’s important to note that they often have “field recorders” running while questioning you. You can use this fact to your advantage by asking if the field recorder is running and asking for the interviewing officer’s identification and badge number. It is a requirement of Police to provide identification if asked to do so. Being aware of these facts will help focus your attention on your “right to silence” and using that right to give you time to speak with a solicitor or advocate Remember though, if you do speak with Police prior to receiving legal advice and assistance, Police can use any information you provide them with, in any future case they may take against you. We always strongly recommend you seek experienced and expert legal advice prior to speaking with Police where you are a suspect in any criminal investigation. Do Police have to advise me of my rights? In America, (and an American TV shows broadcast in Australia), we often hear about the “Miranda”, or someone’s ‘Miranda rights’. In Australia, the same type of right exists. When Police question you in Queensland, under the law, you   must   be warned in a certain way. Queensland law says: A police officer must caution a relevant person about the person’s right to silence in a way substantially complying with the following : ‘ Before I ask you any questions I must tell you that you have the right to remain silent. This means you do not have to say anything, answer any question or make any statement unless you wish to do so. However, if you do say something or make a statement, it may later be used as evidence If you’re being investigated for a criminal offence or you’ve been charged with a criminal offence and you are seeking legal representation, please contact us. https://www.hallpayne.com.au/blog/rss/blog/2018/december/do-i-have-to-answer-police-questions/ Tue, 04 December 2018 00:00:00 Debate is raging in Parliament, businesses, unions, households and in the media regarding current levels of workplace security. The union movement is strongly pursuing a campaign called ‘ Change the Rules ’ which recognises that many industrial laws are skewed heavily against Australian workers. One of the most hotly contested debates concerns the ‘casualisation of the workforce’. It seems that more and more often, businesses are seeking to hire staff on a casual basis rather than as a permanent employee. Whilst many casual workers may be paid slightly more compared to permanent employees, casuals tend to lack workplace security and do not have access to the same entitlements as permanent employees; for example, sick leave, annual leave and the lack of guaranteed hours, etc. There is an attitude among some businesses that casuals can simply be sacked without any industrial recourse. Interestingly, the   Fair Work Act 2009   (which is the law that governs most national employment relationships in Australia) provides no guidance or definition in relation to what constitutes a casual employee. In a landmark decision   Skene v WorkPac , the Federal Court of Australia determined that a fly in, fly out (FIFO) worker employed as a “casual” was   not   in fact a casual employee. Background of Mr Skene’s case Mr Skene was employed as a “fly in fly out” (FIFO) worker as a dump-truck operator in a Queensland mine. He was hired through a labour hire company called WorkPac, which is one of Australia’s largest labour hire employers. WorkPac classified Mr Skene’s role as ‘casual’ even though he was hired to work on a regular and systematic roster. Therefore, even though Mr Skene was working regular and consistent hours with the same employer, he was not entitled to sick leave and other entitlements because he had been classified as a casual worker. In addition to working regular hours, Mr Skene’s employer even set his roster 12 months in advance. He was often working alongside other colleagues who had been hired as permanent workers. His employment was continuous and the mine even paid for his flights and accommodation to allow him to perform his FIFO duties. Even though Mr Skene was employed as a casual, it was expected that he apply for any leave periods in advance (even though he would not be paid for periods of leave). Mr Skene was terminated in April 2017. As he had been employed as a casual, he was not entitled to a pay-out of annual leave entitlements (these entitlements would be payable upon termination for a permanent employee). Federal Court case –   Skene v WorkPac Mr Skene pursued a claim through the Federal Court of Australia. He argued that it was wrong to classify him as a casual because he was working such regular and systematic hours, and he pursued an entitlement to annual leave and other benefits ordinarily available to permanent employees. In a landmark decision, the Federal Court determined that FIFO workers should not be classified as casual employees. In making its decision, the court had to consider if Mr Skene was legitimately a casual employee. As the   Fair Work Act   provides no definition as to a casual employee, the court had to consider other factors in reaching its decision. It relied on other cases as well as industrial instruments and asked: Does the work involve irregular work patterns? Is there any uncertainty around the period of employment? Has the employment been continuous? Was the work intermittent or unpredictable? When taking into account all of the above considerations, the court concluded that Mr Skene was clearly not a casual worker and he should be classified as permanent. What about the casual loading the employee had already been paid? A legitimate concern about this case involves the issue of Mr Skene’s potential “double dipping” of entitlements. As mentioned earlier, most casuals receive extra compensation known as a “casual loading” above and beyond their ordinary hourly rate of pay. This extra money is paid to casual employees to reflect the fact that they do not receive leave entitlements and other industrial protections compared with permanent employees. In Mr Skene’s case, he had been receiving a casual loading during his employment, but the court had now found him to be a permanent employee. Some may argue that he should repay the casual loading he had received during his employment. The court also found that despite Mr Skene receiving a casual loading throughout his employment, he was additionally entitled to be paid his annual leave. Although the court acknowledged that an employer may be able offset against an employee who has been paid casual loading and later found to be permanent, this was not the case for Mr Skene. This question ultimately comes down to the facts of any individual case. WorkPac has appealed the decision to the Full Court of the Federal Court seeking clarification regarding whether casual workers can “double dip”. What does this case mean for Australian workers classified as “casual”? This decision may have far-reaching implications for many Australian workers. An employer may seek to engage a highly-casualised workforce, but if the workers are provided with long-term regular shifts with certainty of employment, a court may find that they should be treated as a permanent employee. Just like other relationships, the employment relationship can transform over time. A worker may start off working in a situation with haphazard and irregular shifts, but if that evolves to a more systematic and regular environment over time, an employer should carefully consider whether it is more appropriate to treat the worker as a permanent member of staff. Mr Skene’s case demonstrates that just because your boss decides that you are a casual worker, this may not legally be the case. Get help from an employment lawyer At Hall Payne, we have a proud tradition of helping workers through a variety of industrial struggles. If you have any concerns about your status of employment, or any other employment law concerns, it is important that you seek legal advice as a matter of urgency. You can   contact   any of our employment law experts for advice and assistance or you can get in touch directly, with today’s blog writer,   Employment Law   solicitor,   Syvannah Harper . https://www.hallpayne.com.au/blog/rss/blog/2018/november/casual-worker-or-permanent/ Tue, 27 November 2018 00:00:00 Workers compensation claims are rarely black and white. Clients regularly seek our assistance because their   workers compensation claim   has been rejected or they have not received their full entitlements. This can occur even if all the evidence points to the injury having been caused by employment. Workers compensation insurers can try and find creative reasons to reject claims, and many workers are left with no choice but to either accept an unfair decision, or navigate their way through complex and protracted workers compensation litigation. Ian’s case The difficulties with the workers compensation scheme were evident in a recent case involving our client Ian. Ian was working on a major project in the Northern Territory as a FIFO worker. He injured his knee at work and could not continue to perform his usual duties. To make matters worse, during his period of recovery, his employer made him redundant. Ian sought our advice and assistance to pursue his workers compensation and industrial entitlements. The legal issues in dispute Although Ian injured his knee at work, he only lodged a workers compensation claim after the employer decided to make him redundant. His workers compensation claim was rejected based on the insurer’s arguments that: His injury did not appear to be work-related (in other words, it did not arise out of the course of employment); Even if Ian was injured, his knee injury did not incapacitate him from employment; and Any knee injury was the result of pre-existing degeneration of the knee joint, and his employment did not cause an aggravation of his underlying condition. Additionally, the insurer questioned Ian’s motives for lodging the workers compensation claim and they suggested that the claim was only submitted after the redundancy because he was frustrated with the employer’s decision. The insurance company was prepared to attack Ian’s credibility. The process of working with our client We worked closely with Ian to help him prove his case. We identified that there was an independent witness to the work-related incident that caused the knee injury. Further, we communicated with Ian’s doctor and found out that Ian made a report to his GP within 24 hours of the incident occurring. We also obtained evidence from an orthopaedic surgeon who concluded that the workplace incident had caused the injury (and Ian’s symptoms were not simply the result of underlying degeneration). We participated in a mediation of the disputed claim which involved protracted negotiations. The win We were pleased to obtain a successful outcome for Ian where he received his full entitlement to workers compensation and the insurance company made complete concessions regarding the claim. The insurer set aside the initial rejection decision and accepted the claim in full. This meant that Ian did not have to litigate his matter through the Work Health Court. Ian’s case represents just one of countless matters where Hall Payne has proudly achieved positive results for workers. Get help from a personal injury lawyer If you have been injured at work or treated unfairly and you’d like to speak with someone about your rights and entitlements, you can get in touch directly with today’s blog writer,   Cameron Hall . https://www.hallpayne.com.au/blog/rss/blog/2018/november/nt-workplace-injury-win/ Tue, 20 November 2018 00:00:00 Do you ever feel like your boss is targeting you? Do you feel like you’re being treated unreasonably or unfairly? It is important to know the difference between what is appropriate management action and what is workplace bullying. The Sydney Morning Herald has   published the results of a recent survey   conducted by Ray Morgan  which showed that: one in four people said their boss had made them cry; one in five said they felt uncomfortable after receiving inappropriate remarks; and one in three said they had felt bullied. This appears to be an increasing trend in workplaces, albeit not a new one. Employees can often feel intimidated and even afraid of their bosses because of the way they exercise their authority over them, the way they communicate with them and even the way they act around them. But do any of these things actually mean you are being bullied in the workplace? What is bullying? You could be experiencing workplace bullying if an individual (including your boss), or a group of people, repeatedly acts unreasonably towards you and their behaviour creates a risk to your health and safety. “Unreasonable behaviour” is defined as any behaviour that a reasonable person might see as unreasonable in the circumstances. This includes, aggressive, humiliating, intimidating or threatening conduct. What is   reasonable management action? Reasonable management action is action taken by a boss or manager in relation to the way in which you conduct your work. In other words, a boss can take steps to monitor or direct and control your performance if they consider that you’re not performing to an appropriate standard. It also allows managers to impose disciplinary action against you. The thing you have to ask yourself is, “are the actions being taken for a legitimate purpose and in a reasonable way?” If not, then their actions may be considered bullying. What do you do when you find yourself in this tricky situation? Most workplaces will have a policy on bullying and harassment. Make sure you read it and understand your rights under the policy and any steps you are required to take to make a complaint. Where possible it is preferable that you speak with your supervisor or manager about your concerns. It is important that you identify any instances that have occurred and explain why they didn’t warrant their reactions or actions. It is likely that you will have to continue working closely with your manager and it is important that you can communicate effectively with them to be able to work harmoniously. If you don’t feel safe or comfortable speaking with your manager or you feel intimidated by them, raising concerns with them may not be an option for you. If this is the case you should speak with HR about the issues you are having. Depending on the severity of your complaint, HR may suggest mediation with an independent mediator to try and address both of your concerns and assist you to work together harmoniously in the future. Alternatively, they may suggest that you make a formal complaint. What options do I have if the internal complaints process fails? If the bullying conduct continues and/or the internal process in your workplace leaves you dissatisfied, then it is important that you seek advice from your union or legal representative. You may have some recourse to apply to the Fair Work Commission to obtain a “ stop the bullying order ”. No employee should be made to cry at work or feel intimidated, humiliated or threatened. It is important that every worker feels safe to show up to work without fear or trepidation. Get help from an employment lawyer If you’re experiencing workplace bullying and you’ve either exhausted your options with the internal process or you’re not comfortable raising your concerns with your employer, feel free to   get in touch  with one of our   Employment Law   team members to investigate your options. Today’s blog writer is    Syvannah Harper . https://www.hallpayne.com.au/blog/rss/blog/2018/november/is-your-boss-a-workplace-bully/ Tue, 13 November 2018 00:00:00 The law recognises the severe impact that   workplace bullying   and harassment can have on workers’ health and wellbeing. For example, victims are now able to apply to the Fair Work Commission to seek a ‘Stop Bullying Order’ if they feel that they are at risk of ongoing harm because of the bullying. Unfortunately, bullying is still prolific in many Australian workplaces. Clients often seek advice from our solicitors at Hall Payne as a result of the adverse impacts associated with workplace bullying and harassment. History of Matter We recently supported three employees in relation to a bullying claim involving their employer, the City of Darwin, and another employee, Ms King. The facts of this matter are complex and spanned over a period of two years. In 2016, Ms King had made complaints to the Council about inappropriate conduct involving our clients. The Council engaged an external law firm to conduct an investigation into her allegations. The external law firm interviewed several witnesses, including our clients, and upon completion of their comprehensive investigation, they concluded that Ms King’s complaints   had merit and were substantiated . Our clients had compelling corroborating evidence to support their version of events, however were disbelieved by the investigator. Our clients were subjected to disciplinary action as a consequence. An application was filed in the Fair Work Commission seeking Orders to Stop Bullying in an attempt to protect their employment from being further jeopardised. Those applications were discontinued when an outcome that suited all parties was negotiated. Ms King then filed her own application seeking Orders to Stop Bullying. It was in this application that the outcome of the investigation, including the reasons that were relied on by the investigator, became critical to our clients’ case. The Council tried to rely on legal professional privilege – unsuccessfully Our clients sought a copy of the investigation report from the Council, but the Council refused to release the report claiming it was protected by ‘legal professional privilege’. Legal professional privilege is a concept where a party is protected from disclosing certain communications (including documents) if those communications occurred between solicitors and their clients. In most law suits, the parties are obliged to provide to each other all relevant material/documentation in their possession, unless it is covered by legal professional privilege. To prove that a communication/document is protected by legal professional privilege, a party needs to demonstrate that the communication was obtained for the predominant purpose of providing legal advice or was made in ‘contemplation of litigation’. Privilege can be ‘waived’ by the consent of the relevant party or by other means. The FWC Commissioner finds in favour of our clients In our clients’ case, Commissioner Nick Wilson accepted our submission and found the Council had waived its privilege because there had been “ more than a summary communication of [the report’s] contents ” to Ms King and our clients. In other words, by providing Ms King and our clients with much of the contents and findings of the investigation report, the Council had effectively ‘waived privilege’ and therefore the report should be disclosed. The Commissioner also found that the report was not obtained for the predominant purpose of providing legal advice, but was designed to gather facts and ascertain whether Ms King’s allegations could be substantiated. Such a process could have been conducted by anyone, and did not necessarily need to be performed by a lawyer. This is an excellent outcome for our union and its members. The Commissioner’s ruling can be found at: Gaynor King [2018] FWC 6006 (26 September 2018) If you are the victim of workplace bullying and/or harassment, you should seek legal advice as a matter of priority. Bullying should not be tolerated in Australian workplaces, and at Hall Payne we can work with you to discuss your potential rights and entitlements. If you’re experiencing workplace bullying and/or harassment, or any other employment law related problems, and you want to consider your options, feel free to get in touch with today’s blog writer, Solicitor in   Employment & Industrial Law ,   Kris Birch . https://www.hallpayne.com.au/blog/rss/blog/2018/november/city-of-darwin-loses-bid-to-suppress-bullying-report/ Tue, 06 November 2018 00:00:00 The National Redress Scheme was a key recommendation of the   Royal Commission into Institutional Responses to Child Sexual Abuse . What remedies are available? The National Redress Scheme may assist in providing various remedies, including: Counselling; a Redress payment; and a direct personal response from an institution (eg. an apology). A payment through the National Redress Scheme is not ‘common law’ damages or compensation. The redress payment will not include any amount for loss of income or pain and suffering. It is a payment to acknowledge the impact of institutional child sexual abuse on you. Who can apply? Generally, a person can apply if they: experienced institutional child sexual abuse before 1 July 2018; and are aged over 18 or will turn 18 before 30 June 2028; and are an Australian citizen or permanent resident; and are applying about an institution that has joined the National Redress Scheme; and apply between 1 July 2018 and 30 June 2027. Are there any restrictions? Restrictions may apply if the institution where the abuse occurred has not ‘signed up’ to the Redress Scheme. Further preclusions may also apply if a person has previously received a payment for abuse, or if they are in gaol (although you can apply once you are released) or have been sentenced to a period of more than 5 years imprisonment. Applications can be lodged by the affected person, or their nominee, including their lawyer. At Hall Payne Lawyers, we have a team who understand the difficulties you are facing and who are here to help you access compensation for your harm. Our lawyers will work with you in a supportive and compassionate manner to make sure the compensation process is as simple as possible, and will strive to obtain the outcomes that truly matter to you. Get help from an abuse lawyer  If you’d like assistance or more information about the National Redress Scheme, please feel free to contact today’s blog writer, Senior Associate,   Megan Stanley . https://www.hallpayne.com.au/blog/rss/blog/2018/october/redress-scheme-sexual-abuse-victims/ Tue, 30 October 2018 00:00:00 Doyles Guide is an awards recognition program for law firms and lawyers across Australia. Awards are attributed as “Australia wide” or for specific states and territories. They are also awarded relative to practice area or specialty. It is compiled through legal industry peer recommendations. At Hall Payne, we’re delighted to have been recognised in 2018, by our peers, for a number of awards. We take great pride in the work we do, the clients we work with (both individuals and institutions) and our team of lawyers, managers and administrative staff. It’s this pride along with our expertise and experience and our dedication to what we do and who we do it for, that has helped deliver these awards. We congratulate our whole team on our “firm” based awards and those lawyers listed below for their “individual” awards. 2018 Doyles Guide Awards Firm Awards: Australia Leading Employment Law Firms (Employee & Union Representation) – Australia, 2018 Second Tier Award Queensland Leading Asbestos & Dust Diseases Compensation Law Firms (Plaintiff)- Queensland, 2018 Recommended Queensland Leading Employment Law Firms (Employee & Union Representation) – Queensland, 2018 First Tier Award New South Wales Leading Employment Law Firms (Employee & Trade Union Representation) – NSW, 2018 Second Tier Award Individual Lawyer Awards: Australia Leading Employment Lawyers (Employee & Union Representation) – Australia, 2018 Leading –   John Payne Leading –   Luke Tiley Queensland Leading Asbestos & Dust Diseases Compensation Lawyers (Plaintiff) – Queensland, 2018 Recommended –   Linda Brangan Queensland Leading Employment Lawyers (Employee & Union Representation) – Queensland, 2018 Preeminent –   Luke Tiley Leading –   John Payne New South Wales Leading Employment Lawyers (Employee & Trade Union Representation) – NSW, 2018 Leading –   Luke Forsyth Leading –   Joe Kennedy https://www.hallpayne.com.au/blog/rss/blog/2018/october/doyles-awards-2018/ Wed, 24 October 2018 00:00:00 Hall Payne Lawyers has a proud history of working collaboratively with trade unions and their members to achieve exceptional results for Australian workers. Our commitment to fighting for workers’ rights was demonstrated in a hard-fought victory in the Fair Work Commission in the case of   Kim Star v WorkPac Pty Ltd . Against the odds, we succeeded in convincing the Commission to reinstate our client into her role with her host-employer in the mining industry. Ms Star is a member of the Queensland branch of the Construction Forestry Mining & Energy Union (CFMEU) which has   recognised this result   as an important victory over widespread exploitation of casuals in the coal mining industry. Goonyella Riverside Mine instructs a labour hire company to discontinue our client’s employment at the mine By way of brief background, Ms Star had been employed through a labour hire firm called WorkPac and had been performing regular and consistent shifts at the Goonyella Riverside Mine (operated by BHP BMA) for approximately four years. It is clear that when Ms Star entered the employment relationship with WorkPac, it was done so on the basis that she only work at the Goonyella Mine. Suddenly, Ms Star was notified that her role at the mine was being ‘demobilised’ and BHP had directed WorkPac to remove Ms Star from the mine. BHP failed to provide any reason for their decision to remove Ms Star from the mine despite her inquiries =. Case goes to full hearing at the Fairwork Commission Following a full hearing, the Commission found that Ms Star was the victim of an unfair dismissal at the hands of the labour hire company WorkPac, and the Commission ordered that Ms Star be reinstated to BHP’s Goonyella Mine. This decision has important potential ramifications for the mining industry and other sectors that utilise the services of labour-hire workers; BHP is not technically the employer of Ms Star, yet are now faced with an order to reinstate her to work at their worksite. The Commission found that no persisting employment relationship existed between WorkPac and Ms Star beyond her placement at the Goonyella Mine. Therefore, when WorkPac notified Ms Star that she was not required at the mine any further (at BHP’s request), they effectively dismissed her from employment and this gave rise to an unfair dismissal. Lost wages awarded to our client In addition to the reinstatement order, the Commission also awarded over $4,000 in lost salary to Ms Star. It is unfortunate, and somewhat disturbing that Ms Star’s case does not represent an isolated incident. To the contrary, Ms Star’s circumstances and experiences are prevalent throughout the mining industry in Australia. Queensland’s mining industry on notice In Queensland less than half of workers in the coal mining industry are permanent; the majority are either casual or employed through labour hire arrangements. This highly casualised and labour hire reliant environment creates a lot of uncertainty and anxiety for workers. These types of workers are simply not afforded the same level of industrial protections and entitlements as permanent staff. For too long, mining companies have preferred casual and labour hire staff because they can end their employment for absolutely no reason. This demonstrates why Ms Star’s victory is so important. Ms Star’s case should be a wake-up call to the mining industry that they cannot simply treat casual workers as disposable commodities. These major companies should not be allowed to order the removal of a worker from the site without providing valid justification. We look forward to working with Ms Star to assist with the transition back to work. At the time of originally writing this article, it was not clear whether BHP would allow Ms Star to return to work at the mine. We’re delighted to report that Ms Star returned to the mine on 31 October 2018. The   latest judgment in Ms Star’s case can be found here . We will continue to work with unions including the CFMEU to ensure all workers, including labour hire workers, are given a fair go in the workplace. Get help from an employment lawyer  If you are experiencing problems in your workplace, including if you have been unfairly targeted or dismissed, please contact Principal in Employment Law,   Joseph Kennedy . https://www.hallpayne.com.au/blog/rss/blog/2018/september/labour-hire-workers/ Wed, 05 September 2018 00:00:00 In a type of case rarely seen before the court, the   Federal Court   ruled last week on two breaches of the enterprise agreement by Walz Group at the Rocklands Copper Mine. The case involved Hall Payne Lawyers and their client, the Electrical Trades Union, enforcing two enterprise agreement causes relating to job security. By demonstrating that the Walz Group did not correctly adhere to appropriate consultation process when hiring third party employers, Hall Payne successfully proved they contravened the enterprise agreement in place. Hall Payne also successfully proved that Walz Group contravened the enterprise agreement by not ensuring that a contractor that it engaged, Brice Engineering, paid its employees in accordance with the applicable Walz Group enterprise agreement. Through its decision, the Federal Court has confirmed that job security clauses as to consultation and pay parity are not only permitted but are, in fact, legally enforceable by a union. As one of few proceedings enforcing job security clauses, the ruling holds great significance as to how the Fair Work Act is applied and enforced in practice. A ruling on the relevant penalties is expected within the next few months, which should prove an interesting conclusion to this unique case. Hall Payne are proud of this result, a continuation of their commitment to ensuring a fair work environment for union employees across the country. https://www.hallpayne.com.au/blog/rss/blog/2018/june/enterprise-agreement-breaches-etu-walz-group/ Mon, 25 June 2018 00:00:00 Through employing a planned and comprehensive strategy, Hall Payne Lawyers were recently able to assist a CFMMEU official with regaining his federal right of entry permit. An unrestricted right of entry permit is obviously of crucial importance to union organisations, enabling union officials to enter premises for specific purposes and is legislated as part of Commonwealth and state workplace laws. As the   Fair Work Commission sets out , the laws allow an official to enter premises for the purpose of: investigating suspected breaches of the FW Act and other instruments meeting with employees during breaks, and exercising inspection rights under occupational health and safety laws. Having held his Federal permit since 2008, Townsville CFMMEU official Michael Robinson had been denied this permit by the Commission in 2017. Part of the reasoning for the refusal of the permit on that occasion was the reliance on a decision made under s.418 in relation to organising industrial action. Hall Payne devised a strategy to make a fresh application for his federal permit, including specialised training with a former member of the Commission. Hall Payne also submitted before the Commission that the previous reliance on the findings made in a s.418 decision was wrong, and that no weight should be given to those findings. The   decision   by the Fair Work Commission noted the importance of this training “about the rights and obligations of a permit holder on two occasions in 2017 through different vehicles is a matter that weighs in favour of a conclusion that he is a fit and proper person to hold a right of entry permit and the Act.” The Commission decided that the previous decision was incorrect and granted his permit without any conditions. In relation to the previous reliance on the s.418 decision, the Commission accepted our arguments, finding that the relevant state of satisfaction in such matters is merely that “if it appears” industrial action is being organised. His Honour found that the reasoning in the s.418 decision was “less than compelling” and that it did not provide a “sound basis to infer that Mr Robinson was organising industrial action.” His Honour ultimately determined that it was unsafe to ascribe any weight to that s.418 decision. This case establishes an important precedent for future permit applications. It reinforces that the Commission should exercise considerable caution in applying previous findings made in s.418 matters to the question of whether an official is a “fit and proper person” to hold a permit. Hall Payne Lawyers were proud of this result and subsequent return of an unrestricted entry permit to Mr Robinson. If you have an industrial relations matter, Hall Payne’s expert and award winning advice can help. Contact us via our  contact  page, or on 1800 659 114 for a consultation today. https://www.hallpayne.com.au/blog/rss/blog/2018/april/cfmmeu-retain-right-of-entry-permit/ Mon, 23 April 2018 00:00:00 Hall Payne Lawyers recently acted for the Bacon Factories’ Union of Employees, Queensland in a dispute with Swickers Kingaroy Bacon Factory over the payment of shift penalties. The heavily casualised workforce at Swickers had been not paid their necessary shift penalty, in addition to casual loading. These underpayments went back six years and it is estimated that they may exceed $1,000,000. The Fair Work Commission dealt with the dispute by answering three questions posed to it. The Union was successful at first instance with Deputy President Asbury deciding that a shift penalty should be paid in addition to the casual loading, and not instead of the casual loading. The Deputy President also expressed preliminary views, in favour of the Union, in relation to the other two questions. The matter was to be finalised early this year, however Swickers appealed the decision on the first question. On 4 April 2018, shortly after a hearing before a Full Bench of the Commission on 20 March 2018, Vice President Hatcher, Deputy President Dean and Commissioner Hunt found unanimously and resoundingly that the conclusion reached by Deputy President Asbury was correct and dismissed the appeal. The Full Bench remitted the matter to Deputy President Asbury to decide the answers to the last two questions. Swickers recently advised the Union that it would concede that the preliminary views expressed by the Commission were correct. Consequently, the underpayment amount is likely to exceed $1,000,000. If you have an industrial relations matter, Hall Payne’s expert and award winning advice can help. Contact us via our  contact  page, or on 1800 659 114 for a consultation today. https://www.hallpayne.com.au/blog/rss/blog/2018/april/underpayments-bacon-factories-union/ Fri, 20 April 2018 00:00:00 In a significant win for contract workers, the Federal Court   recently found   that Berkeley Challenge Pty Ltd, a part of the Spotless Group, contravened sections 117 and 119 (and therefore 44) of the Fair Work Act 2009 (Cth). Sections 117 and 119 are part of the National Employment Standards. The breaches concerned a failure to provide notice of termination of employment and a failure to provide severance pay upon redundancy, when the company lost its contract to provide cleaning and security services at the Sunshine Plaza Shopping Centre. Acting for United Voice, we alleged that the company breached the Act in those ways, and the Court agreed. As a consequence of its breaches, the company was ordered to pay compensation and interest to the affected employees of over $209,000. The United Voice members affected by the breaches will also be put back in the same position that they would have been in if not for the breaches. The s.119 aspect of the case was the most notable. The company sought to rely on the “ordinary and customary turnover of labour” exception to the obligation to pay severance upon redundancy. The Court closely examined the history of that provision dating back to the TCR Case. The Court analysed the company’s evidence about its practices, and the practices of other companies in the Spotless Group, upon the loss of a contract to provide services (whether cleaning, security, catering or similar). Ultimately the Court was not persuaded that the retrenchment of the employees upon the loss of a contract was the ordinary and customary practice for the company. On that basis the company failed to discharge its onus and the exception was not made out. As a result, United Voice’s s.119 claim was successful. We expect that the case will be an important precedent in future s.119 cases. It is hoped that the case will arrest the industry-wide practice of failing to pay severance upon redundancy caused by loss of contract. Further, in any subsequent litigation concerning the ordinary and customary turnover of labour exception, the Court will be required to examine the practices of the employer, not of other companies in its corporate structure. The s.117 aspect of the case turned on the proper construction of a notice distributed by the company with respect to the loss of contract. The Court found, as we argued, that the company had not discharged its obligations to provide the employees with notice of termination as required by s.117. The Court has not yet determined the question of penalty, which will be dealt with at a further hearing in June 2018. The outcome of the proceedings is a significant victory for United Voice and its members. The decision of United Voice to commence the proceedings has been vindicated. Hall Payne Lawyers has unrivalled experience in acting for unions in proceedings for breach of the National Employment Standards.   Contact us via our  contact  page, or on 1800 659 114 for a consultation today. https://www.hallpayne.com.au/blog/rss/blog/2018/april/historic-win-termination-employment-spotless/ Wed, 18 April 2018 00:00:00 The Federal Court   recently found   that Hail Creek Coal Pty Ltd, a subsidiary of Rio Tinto, contravened its enterprise agreement, and therefore section 50 of the   Fair Work Act   2009 (Cth), on 506 occasions. The breaches concerned a roster change, which was implemented by the company together with a unilateral reduction in the applicable roster allowance for employees. Acting for the CFMEU, Hall Payne alleged that the company was not permitted by the enterprise agreement to reduce the roster allowance upon the roster change, and the Court agreed. As a consequence of its breaches, the company was fined $45,540 and ordered to pay compensation and interest to the affected employees in the amount of $198,341.69. The decision is the third time that Hall Payne has successfully acted for the CFMEU and its members in Federal Court proceedings for breach of the Hail Creek enterprise agreement: the company has previously been found to have breached the enterprise agreement and fined in cases involving the employment of Michael Haylett, and the non-payment of sick leave. The fact that those prior fines had not deterred the company from its breaches in this case was a factor which the Court relied upon in its assessment of penalty. The Court found that because of the prior breaches, the company should have taken a cautious approach to the proposed reduction in the roster allowance but instead it “took the odds” that its interpretation was correct, when it should not have done so. The Court also criticised the company for the fact that it   “…decided to reduce the roster allowance it paid for its own financial benefit, knowing that to do so would have a detrimental financial impact upon the affected employees”   and took that matter into account in its assessment of penalty. As a result of the Court’s remedial orders the CFMEU members affected by the breaches will be put back in the same position as they would have been in if not for the breaches. The outcome of the proceedings is another significant victory for the CFMEU and its members. The decision of the CFMEU to commence the proceedings has been vindicated. Hall Payne Lawyers has unrivalled experience in acting for unions in proceedings for breach of industrial instruments. Contact us via our  contact  page, or on 1800 659 114 for a consultation today. https://www.hallpayne.com.au/blog/rss/blog/2018/april/hail-creek-enterprise-agreement-breaches/ Mon, 16 April 2018 00:00:00 At Hall Payne Lawyers, our clients are our priority. We strive to ensure that our clients feel comfortable, confident and connected during their time with us. We were so pleased to receive this letter from a recent client, as an acknowledgement of the ongoing efforts of our Sydney employment team. We’re proud to see the recognition of Principal  Joe Kennedy , recently named on the Doyle’s List as a leading   Sydney employment lawyer , solicitor   Eliza Sarlos   and team member Anita. “Dear Eliza, Joe and Anita, I write this to express to you my sincere gratitude and thanks for representing me on my recent court case. From our first telephone conversation, you showed great professionalism, demonstrating flexibility booking a time to conduct a telephone conversation that suited me and not having to attend your office. You listened to the facts and circumstances surrounding my case, instructing me as to what I needed to do to provide as much evidence as we could to prepare for the case. At no time were you ever judgmental of me and gave the reassurance I needed through your confidence with regards to my case. Anita was truly wonderful in my contact with your office, friendly and punctual in any calls or inquiries I made to you both. I never had to wait long for replies, be it via telephone or email. I felt at ease when Joe has stepped in to assist when Eliza was on leave. Eliza my only regret is that I never got the opportunity to meet the three of you in person, as the case was dropped the day before my hearing. I would not hesitate to use your firm, refer or highly recommend your services to anyone for whatever the reasons may be. Once again, my heartfelt thanks for all the work you did. Yours Sincerely Darryl Jones ” Get help from an employment lawyer If you have an employment law or industrial relations matter, Hall Payne’s expert and award winning advice can help. Contact us via our   contact   page, or on 1800 659 114 for a consultation today. https://www.hallpayne.com.au/blog/rss/blog/2018/april/people-first-at-hall-payne-lawyers/ Fri, 06 April 2018 00:00:00 Hall Payne is proud to announce the appointment of Hobart lawyer   Indi Gunadasa   to Associate. Having joined Hall Payne in 2016, Indi is a key member of our   Tasmanian   office and has achieved significant victories in several employment law cases many thought could not be won. In the most recent of these wins, Indi represented his client to win   a rare reinstatement   order in an unfair dismissal case. Keeping in mind the Fair Work Commission’s   2016-17 Annual Report   states that less than 0.01% of applicants will receive a reinstatement order from the Commission, this was a fantastic outcome for his client and sets a strong precedent for future cases. In 2017, he also achieved a landmark result in the Tasmanian Industrial Commission for a   nurse employed casually , with the Commission finding that casual employees across the entire Tasmanian state service could be protected from unfair dismissal. These results are a continuation of Indi’s career-long commitment of solving problems and helping individuals. He says “being promoted by Hall Payne is a privilege and I am happy to see some of the great results achieved in Tasmania recognised nationally. I look forward to continuing to assist disadvantaged workers in the Tasmanian community in their time of need.” Indi graduated with a combined Bachelor of Business and Laws from the University of Tasmania in 2011 and was admitted to the Supreme Court of Tasmania and High Court of Australia in 2012. Prior to joining Hall Payne, he was a solicitor at Hobart Community Legal Service, where he still volunteers in their after hours clinic. He notes of his appointment to Associate, “Since commencing with Hall Payne Lawyers, I have had the opportunity to work with a number of recognised leading lawyers in their respective fields of industrial relations, employment and personal injury law.  Through working closely with these individuals, I have had the benefit of developing my knowledge, experience and specific skillset.” The Directors and Principals congratulate Indi on his appointment and look forward to continuing work together with him in the years to come. https://www.hallpayne.com.au/blog/rss/blog/2018/march/indi-gunadasa-associate-hobart-hall-payne-lawyers/ Fri, 09 March 2018 00:00:00 On 21 February 2018 the Full Bench of the Queensland Industrial Relations Commission handed down its decision in   Electrical Trades Union and ors v Brisbane City Council . The case was a test case in relation to the operation of the agreement making provisions in the   Industrial Relations Act 2016 . The decision makes clear that, unlike the   Fair Work Act   2009, in the state system, the agreement of unions involved in negotiations is a prerequisite that cannot be bypassed in reaching an agreement. Negotiations for a new single certified agreement for the workers at the Council had been ongoing for over a year. Some of the unions had applied for a scope order to negotiate a separate agreement for their members. The Council opposed the scope order application and it was dismissed in August 2017. The Council then attempted to bypass those unions and sought to request employees vote on a proposed certified agreement prior to obtaining the agreement of all of the relevant unions. Hall Payne Lawyers responded by commencing proceedings on behalf of its clients; the Electrical Trades Union, the Construction, Forestry Mining and Energy Union and the Australian Manufacturing Workers Union. The unions sought an injunction at the end of last year to prevent the Council from proceeding with its proposed vote by employees and were successful in obtaining that injunction. When the matter came on for final hearing before a Full Bench the Council argued that the legislation only required one or more of the parties (but not all) to propose the agreement in order for employees to be permitted to vote on it. The Council also argued that the unions were no longer negotiating parties because it had unilaterally decided that it didn’t want to negotiate with them any longer. The Council sought to deal directly with its employees with respect to a proposed agreement. The unions argued that the legislation required the agreement of all the negotiating parties. The Full Bench agreed with our clients and declared that they were all negotiating parties and that the Council could not bypass them. This is a very important decision in relation to the operation of the agreement making provisions in the   Industrial Relations Act   2016   and will have an effect on the ongoing negotiations in a number of local Councils and within the state public service in Queensland. https://www.hallpayne.com.au/blog/rss/blog/2018/march/hall-payne-union-agreement-negotiations-2018/ Thu, 01 March 2018 00:00:00 Hall Payne’s NSW Employment team has been named by the prestigious Doyle’s Guide as a  leading employment law firm  representing employees and trade unions. As the definitive listing and commentary on Australia’s leading law firms and lawyers, Doyle’s Guide releases results each year on the top lawyers and firms in each practice area, as voted by peers across the profession. Hall Payne’s Sydney employment lawyers are proud to be recognised by the prestigious guide for the   second year running , having experienced extraordinary growth in the three years since expanding into NSW. Being named a leading law firm is an accolade you might expect, given the team’s involvement in significant victories this year – achievements that are clearly recognised by their peers with this nomination. This included   achieving permanent employment   for a client in a landmark Federal Court of Australia, the first of its kind in Australia for casual employees, as well as accomplishing a significant victory on behalf of   Queensland apprentices . Giving further cause to celebrate, the listings also named Hall Payne Principals   Luke Forsyth   and   Joe Kennedy   as two of   Sydney’s leading employment lawyers . Joe commented on their recognition: “Hall Payne Lawyers strives to push the boundaries of the law to achieve real and lasting change in the lives of working people. Individual recognition such as this from our peers is a lasting indicator of the quality of our work. It also shows that we are very effective at what we do and we go about it in the right way.” Luke has been consistently recognised as one of Australia’s leading employment lawyers by his peers in the Doyle’s Guide, a testament to the quality of skill and service in over fifteen years of experience helping employees in all areas of employment law. Having been named a   Hall Payne Principal in 2017 , Joe’s listing illustrates his growing reputation as of one of Sydney’s most skilled and dedicated employment and industrial relations lawyers. With Principals John Payne and Luke Tiley named earlier this week in the   Doyle’s Guide Queensland listing , to have Hall Payne’s entire Employment & Industrial Relations leadership team individually recognised is a fantastic achievement. These results grow on Hall Payne’s reputation for providing the best advice and legal representation to employees and unions across Australia. With offices open in   Queensland, NSW, Tasmania and the Northern Territory   workers across the country can now benefit from that quality of advice. If you have an employment law or industrial relations matter, Hall Payne’s expert and award winning advice can help. Contact us via our   contact page , or on   1800 659 114  for a consultation today. https://www.hallpayne.com.au/blog/rss/blog/2018/february/hall-payne-doyles-guide-2018-leading-sydney-employment-lawyers/ Thu, 22 February 2018 00:00:00 For the seventh year running, Hall Payne has been recognised as one of Queensland’s preeminent employment law firms, named by the prestigious Doyle’s Guide as a First Tier firm within the areas of employment and industrial relations. Doyle’s Guide releases results each year on the top lawyers and firms in each practice area, as voted by peers across the profession. As the definitive listing and commentary on Australia’s leading law firms and lawyers, Hall Payne is proud to be recognised again for their commitment to workers’ rights. Compiled on “peer-based surveys as well as extensive telephone and face to face interviews with clients, peers and relevant industry bodies”, an achievement of the accolade of First Tier is a huge honour for the   Queensland employment team . The ranking continues   the strong results from 2017 , with Hall Payne again one of only two firms to receive the First Tier status in 2018. It is recognition you might expect, given the same publication nominated Hall Payne partners   John Payne   and   Luke Tiley   as two of the State’s top employment lawyers. Having spent more than 30 years helping organisations across Queensland, John Payne’s expertise is unrivalled. This continued recognition from peers is the result of the depth of that expert knowledge, and John’s commitment to trade unionism. An Accredited Workplace Relations Law Specialist, Luke Tiley heads up Hall Payne’s Industrial Relations team, Luke has been responsible for some big wins across the union movement in recent years – achievements that are clearly recognised by his peers with this nomination. These results firm up Hall Payne’s reputation for providing the best advice and legal representation to employees and unions across Queensland. With offices now open in   Sydney, Hobart and Darwin   that quality is quickly becoming available to clients across Australia. If you have an employment law or industrial relations matter, Hall Payne’s expert and award winning advice can help. Contact us via our contact page, or on   1800 659 114  for a consultation today. https://www.hallpayne.com.au/blog/rss/blog/2018/february/hall-payne-2018-best-employment-lawyers/ Mon, 19 February 2018 00:00:00 Our client, Peter Brain, started working at Hobart Zinc Smelter now operated by Nyrstar when he was 20 years old. For over 37 years he worked hard in various roles, with an exemplary record. He was dismissed in 2017. Peter came to Hall Payne to investigate his unfair dismissal options. Overview Peter was sacked for a single safety breach. At no time was he invited by his employer to discuss the appropriate sanction for the safety breach. Indi Gunadasa , from Hall Payne’s Hobart office, represented Peter in his unfair dismissal case. He argued that Peter should be reinstated because his sacking was harsh and unfair. Indi drew attention to the fact that Peter had a very particular and specialised skill set which he had acquired over his 37 years of loyal service. This very specialised skill set would hinder Peter in obtaining meaningful employment elsewhere after his termination. The Commission’s Decision The Commission agreed with Hall Payne. Deputy President Barclay held that the termination of Peter’s employment was harsh. The Commission criticised Nyrstar for failing to provide Peter with an opportunity to discuss the appropriate penalty before sacking him for the breach of safety. Deputy President Barclay when considering trust and confidence in the employment relationship concluded that: … In reality [Peter] was a good worker. He has, over the course of 37 years committed one serious disciplinary breach of policy and protocol. He was terminated because of the seriousness with which the [Nyrstar] regarded the breach. The evidence of the deliberations in reaching a decision on sanction is scant… I am asked to accept that the trust and confidence built up over a very long time has been destroyed by one incident of a safety breach. I do not. The Commission ordered that Peter be reinstated to his former position with Nyrstar. Reinstatement in unfair dismissal claims is very rare. The Commission’s  2016-17 Annual Report  states that  less than 0.01% of applicants  will receive a reinstatement order from the Commission. Quick Facts: There were 14,135 unfair dismissal applications made to the Commission during 2016-17 period. Only 307 applications were resolved by order of the Commission. Only 25 applications resulted in reinstatement by order of the Commission. This was a fantastic outcome for our client. Peter said: “ The way Indi handled my case, from the advice at the start and all the way to the end,… he was great! Me and my entire family are grateful for the result .” Get help from an employment lawyer If you have an employment law or industrial relations matter and you’re looking for advice and assistance, Hall Payne’s expert advice can help. You can either get in touch directly with today’s blog writer,   Indi Gunadasa   (Hobart office) or   contact us at our head office   for referral to an   employment lawyer   at any one of our other offices. https://www.hallpayne.com.au/blog/rss/blog/2018/february/reinstatement-after-37-years-service/ Fri, 16 February 2018 00:00:00 Health providers have a duty to exercise reasonable care and skill when providing advice and treatment to patients. The duty of care extends to the examination, diagnosis and treatment of the patient. So what treatment should be provided to a patient? It depends on the individual circumstances of each case. For example, treatment provided in an emergency situation would be different to the treatment recommended to a patient who has to undergo elective cosmetic surgery. NSW dentist found to have performed unnecessary treatment In the New South Wales decision of   Dean v Phung [2012) NSW CA 223 , the Court of Appeal considered what damages were to be awarded against a dentist who was found to have performed unnecessary treatment. In that case, the plaintiff patient sustained what was described as minor injuries to his front teeth when a piece of timber struck him in the chin. The defendant dentist provided extensive treatment which included root canal therapy and placing crowns on each tooth at a cost in the vicinity of $74,000. The treatment was irreversible. Despite undergoing the extensive treatment, there was evidence that the patient would require ongoing expensive dental treatment including further root canal therapies which had been performed inadequately. Action was taken against the dentist The patient sued the dentist claiming that the treatment was unnecessary and unreasonable. At trial, one of the issues considered was whether the dental treatment was reasonably necessary to treat the patient’s condition or whether the dentist performed damaging procedures to healthy teeth. Expert evidence from a consultant dentist described the treatment as being   ‘inexcusably bad and completely outside the bounds of what any reputable dental practitioner might prescribe or perform. The treatment was obviously unnecessary and improper… ‘. A specialist prosthodontist opined that the patient’s mouth   ‘was very healthy and there was nothing to suggest the need for the amount of treatment’   provided by the dentist. The dental treatment was unnecessary and ineffective and the patient was successful in his claim. Not only can unnecessary treatment hurt your back pocket, it can be detrimental to your health. You have rights as both a consumer, and as a patient. You have the right to ask questions about proposed medical treatment.  Do I really need this treatment?   Are there other options?  Importantly, as a patient you have the right to seek a second opinion. If you have had problems following a medical procedure you should speak to one of our lawyers so  that you know your rights.   Disclaimer The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances. For further information, please do not hesitate to contact Megan Stanley at Hall Payne Lawyers.   Contact us   through our inquiry form, or on 1800 659 114 to book a free initial consultation today. – Hall Payne Lawyers, serious lawyers for serious injuries https://www.hallpayne.com.au/blog/rss/blog/2018/january/treatment-is-it-necessary/ Mon, 29 January 2018 00:00:00 Health providers have a duty to exercise reasonable care and skill when providing advice and treatment. This duty extends to the examination, diagnosis and treatment of a patient and the level of information provided to the patient. Not all medical procedures and treatment result in the expected outcome. They carry risks. Does a doctor have respon sibility to tell the patient about risks? As a patient, you should be given appropriate and sufficient information about the potential risks of a procedure or treatment to allow you to make an informed decision on whether to undergo the procedure or treatment. A doctor is not expected to warn a patient about every possible risk associated with the medical procedure or treatment. But that doctor does have a duty to warn patients of all material risks associated with a medical procedure or treatment. The duty to warn was considered in the High Court case of   Rogers v Whitaker (1992) 175 CLR 479 where it was said a risk was material if: ‘in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it, or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.’ What information and advice is given to a patient depends on the individual circumstances of each case. For example, information about risks given in a lifesaving emergency situation, if at all possible, would be substantially different to those discussed with a patient who was about to undergo elective surgery. In any claim for medical negligence (malpractice), it is the claimant to prove that the injury sustained was caused or materially contributed to by the wrongful conduct of the health provider. The difficulty a claimant will often face in a failure to warn case is proving that, had the doctor warned them of the risk, they would not have agreed to undergo the procedure or treatment. A claimant cannot rely on a statement made after suffering the injury that they would not have undergone the procedure or treatment if they had been warned of the risk. Failure to warn medical negligence claims are notoriously difficult to run. The patient must prove that they would not have undergone the procedure, or had the treatment, if they had been informed of the material risks. While the Courts have certainly awarded damages in a number of failure to warn claims, the individual circumstances of each case must be considered carefully. Importantly, as a patient, you have the right to ask questions about medical procedures and treatment. If you are not satisfied with the medical services provided by a health provider, you can seek further opinions. If you are concerned by medical treatment provided to you, then you should contact us as soon as possible to find out about your legal rights. https://www.hallpayne.com.au/blog/rss/blog/2018/january/informed-consent-duty-warn/ Thu, 25 January 2018 00:00:00 Do I need to attend a medical appointment organised by my employer? Employers will usually ask an employee to undergo a medical examination when: the employee has had a work injury and is wanting to return to work; the employee wants to return to work on full duties after a period on suitable duties; the employee has been on sick leave for an extended period; and/or the employee has had work restrictions for a long period of time. What does “employer has a duty of care” mean? An employer has a duty of care to protect their employees from foreseeable injury arising from their employment and to maintain a working environment which is safe and without risks to health. This means that they have the obligation to ensure that employees are medically fit to perform the inherent requirements of their job. Generally, it is lawful and reasonable for an employer to request that an employee submit to a medical examination by a company nominated doctor. However, there must be a genuine indication of a need for a medical examination. Determining whether there is a genuine need for you to attend a medical examination The following factors should be taken into consideration when deciding if there is a genuine need for you to attend a medical examination: Is the injury or illness for which you are absent from work, related to the inherent requirements of your position? Have had prolonged and/or unexplained absences from work? Have you already provided information to your employer regarding fitness to perform duties? Are inconsistencies or absences in medical certificates which have been provided to the employer? What is the nature of your workplace and the degree of associated risk with performing your work? Does the employer have legitimate concerns that the illness or injury will impact on others in the workplace? It’s important to gather as much information as possible about the nature of the proposed medical examination before deciding whether or not you will attend. The issue of whether or not it is lawful to direct an employee to undergo a medical examination really needs to be looked at on a case by case basis. Get help If your ability to work has been impacted by injury or illness, we can help. We provide services   across Queensland, New South Wales, Tasmania, Victoria and the Northern Territory. You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation. Phone: 1800 659 114 Email: general@hallpayne.com.au https://www.hallpayne.com.au/blog/rss/blog/2018/january/medical-appointments-request-employer-rights-obligations/ Mon, 08 January 2018 00:00:00 Hall Payne recently obtained a favourable Determination from the Financial Ombudsman Service (FOS) for a former Police Officer diagnosed with Post Traumatic Stress Disorder (PTSD). Our client made a claim for Total and Permanent Disablement Benefits (TPD) after being diagnosed with PTSD in 2010. The PTSD diagnosis caused him to resign from his employment as a Police Officer in March 2010, but to his credit, he then obtained a job in a warehouse in June 2010, initially through a labour hire company, but then permanently. It was not until August 2011 that our client resigned from his warehouse position. His resignation coincided with being convicted of a criminal offence, and a period of incarceration. The Financial Service Provider (FSP) with whom our client was insured declined his claim on the basis that his TPD illness was not the reason he was absent from work, but rather it was his incarceration that caused him to be unable to continue working. Because of this, the FSP decided he did not qualify, under the terms of the policy, for payment of his TPD benefit. In addition, the FSP argued that he should be denied a TPD benefit on public policy grounds because of his criminal conviction. The FSP continued to decline the claim through all its internal dispute resolution procedures. Hall Payne then applied to the Financial Ombudsman Service for determination of the dispute. The argument advanced by Hall Payne was that, although our client’s resignation was brought about by his conviction, he was otherwise unfit to work due to his PTSD condition, and would have been obliged to cease his employment on that basis notwithstanding his incarceration. There was strong medical support for the fact that our client was attempting to maintain employment to his significant detriment and against medical advice, and would not have been able to maintain his position in the warehouse. Indeed, the evidence was that his condition was deteriorating as time passed. The Financial Ombudsman Service agreed and made a Determination in favour of our client. It also determined that the benefit could not be withheld from a claimant merely because they happened to have a criminal conviction, because his injury arose for reasons unrelated to his criminal offences. The FSP continued to decline the claim through all its internal dispute resolution procedures.  Hall Payne then applied to the Financial Ombudsman Service for determination of the dispute.  The argument advanced by Hall Payne was that, although our client’s resignation was brought about by his conviction, he was otherwise unfit to work due to his PTSD condition, and would have been obliged to cease his employment on that basis notwithstanding his incarceration. There was strong medical support for the fact that our client was attempting to maintain employment to his significant detriment and against medical advice, and would not have been able to maintain his position in the warehouse.  Indeed, the evidence was that his condition was deteriorating as time passed. The Financial Ombudsman Service agreed and made a Determination in favour of our client.  It also determined that the benefit could not be withheld from a claimant merely because they happened to have a criminal conviction, because his injury arose for reasons unrelated to his criminal offences. https://www.hallpayne.com.au/blog/rss/blog/2018/january/hall-payne-helps-police-officer-ptsd/ Tue, 02 January 2018 00:00:00 A recent ruling by the Fair Work Commission’s full bench has seen the Registered Organisation Commission (ROC) given a stinging rebuke and quashed its refusal to grant the Queensland Together Branch of the Australian Municipal, Administrative, Clerical and  Services  Union (ASU) request for an extension to file election information. The delegate of the ROC, Mr Chris Enright, gave no consideration for the reasons given by the Queensland Together Branch of the ASU for the extension of the prescribed information lodged by the ASU on 1 and 9 June 2017 in refusing the ASU’s request for an extension and also stated that the ASU had liability for a civil penalty for not meeting the deadline. John Payne, Director of Hall Payne Lawyers and one of Australia’s leading experts in governance and compliance took on the case on behalf of the ASU and the Branch. In respect of what the Fair Work Commission (FWC) characterised as the Mr Enright’s first decision, the ASU’s first ground of appeal focused on the delegate’s statement that his refusal to allow a later date for the lodgment of the prescribed information “renders the organisation liable for a civil penalty” under s 189(2). The Commission found that  It was clear that the delegate had no power to find that the ASU was liable to a civil penalty, and it was not necessary for the delegate to form a view about that matter in order to reach a conclusion as to whether to allow the ASU an extension of time to lodge the prescribed information under s 189(2). Although the observation may be the subject of criticism, in that it was gratuitous and might give rise to a perception of insufficient impartiality, we do not consider it to constitute an appealable decision. The FWC found that  Mr Chris Enright went further and advanced submissions seeking that the ASU’s rules be interpreted in a particular way in defence of the appeal. The decision of the delegate under appeal did not enunciate any such interpretation; rather the delegate seems to have proceeded, reasonably enough, on the assumption that because the ASU sought a later date of lodgement under s 189(2) of the RO Act it had not in fact lodged the prescribed information on the prescribed date. That is, the particular interpretation of the ASU’s rules submitted by the Commissioner’s lawyers in the appeal was not advanced in defence of the delegate’s reasoning, but simply to defeat the appeal. Such an approach might conceivably give rise to a perception of a lack of impartiality, particularly given that the Commissioner will necessarily be involved on an ongoing basis in regulatory dealings with the ASU in the future, and should have been avoided. https://www.hallpayne.com.au/blog/rss/blog/2017/december/hall-payne-helps-deliver-a-stinging-defeat-to-the-registered-organisations-commission/ Thu, 21 December 2017 00:00:00 The recent decision in Pryszlak v. Workers’ compensation Regulator highlights the need for injured workers’ to obtain sound legal advice from an expert workers compensation lawyer. In this case, Mr Pryszlak made application for compensation in early 2015 but received a letter from WorkCover Queensland dated 27 August, 2015, to advise that they did not think that his ‘work was a significant contributing factor causing his injury’ and thus rejected his claim. WorkCover advised Mr P that he had 3 months in which to lodge a Review Application with the Workers compensation Regulator (an independent body set up by the government to review decisions of workers compensation insurers). Mr Pryszlak didn’t lodge a review until some 18 months later (i.e. 15 months outside the 3-month time limit provided by the Workers Compensation and Rehabilitation Act 2003 (the Act) via his solicitors. The Act, whilst stipulating that an application for review must be made within3 months from receiving the decision (in this case to reject the application for compensation), it also notes that the injured worker can ask the Regulator to allow further time to apply for the review- and the Regulator can grant that extension of time ‘..if it is satisfied that specials circumstances exist’. Mr Pryszlak (through his solicitors) supplied the Regulator with reasons why he did not lodge the application for review until some 15 months outside the time limit, but the delegate of the Regulator decided that ‘ (she did) not consider it appropriate to waive the legislative time frame to lodge your review application’. In attempting to explain the delay Mr Pryszlak noted (in his application to the Regulator): He did not appreciate that the initial decision maker (i.e. WorkCover Qld claims officer) didn’t have all the relevant medical evidence (medical records) before him when he decided to reject the claim He made this (erroneous ) assumption on the basis that he had provided WorkCover with a complete authority to allow them to get his medical records (they didn’t do this as he subsequently learned). Mr Pryszlak didn’t appreciate that what was communicated to him was something he could challenge (i.e. given he thought they had all the relevant medical records, he didn’t think there was any point to challenge it- what else could he provide them he though?) This ‘lack of understanding’ of the whole process was, it was claimed by Mr Pryszlak’s solicitors, due to his ‘lack of sophistication, his illiteracy and intellectual incompetence’. The Judge in this case (Justice McMeekin) decided to not follow an earlier supreme court decision (of Devi Workers Compensation Regulator (footnote omitted) which decided that ‘relevant circumstances must relate to the explanations of the delay’ (and to discount earlier judicial statements concerning the downplaying of issues that impact on the justice of the case). Rather, His Honour made the following observation (at paragraph 26): “On this approach, such things as the prejudice to parties, or lack (of it), and the merits of the review are not relevant. In my view any circumstance that bears on the justice of the case is relevant and the issue for the decision maker is whether all those circumstances, taken as a whole, amount to ‘special circumstances ‘ justifying the extension sought’ His Honour noted that the decision maker had failed to apply the proper legal process to determine the issue at hand, which consisted of a ‘two-stage’ process, which was: firstly to determine whether there were ‘special circumstances’; and then if there where (special circumstances), whether the discretion should be exercised (to allow the application for review outside the 3-month time limit) In reviewing the Decision Maker’s decision, His Honour noted (at paragraph 45): “ the reasons taken as a whole do not show any appreciation of the need to first identify the circumstances said to be special, then determine whether or not they had that quality and then determine whether they were sufficient to justify the long extension sought’ This was (ultimately the basis for His Honour’s determination (on this application to the court) to set aside the decision of the Decision Maker (not to accept the application for review out of time) and refer it back to the Regulator for further consideration (and hopefully acceptance of it). This case serves to again highlight that ‘it’s never over until it’s over’ when it comes to workers compensation claims. Mr Pryszlak’s injury continued to cause him a lot of grief some nearly 2 years since he applied for workers compensation benefits – he sought the advice of an experienced workers’ compensation lawyer who has been able to give him some hope of eventually being properly compensated for his work-related injury. https://www.hallpayne.com.au/blog/rss/blog/2017/december/rejected-workers-compensation-claim-need-legal-advice/ Mon, 18 December 2017 00:00:00 For over 20 years our client dedicated his working life to helping people as an advanced care paramedic, and had been commended for his service. In one vile smear his unblemished reputation was ripped away. With the help of Hall Payne, he applied for a review of the decision to restrict his practice, with QCAT rejecting the regulator’s decision and restoring our client’s capacity for unrestricted practice. Our client worked for the Queensland Ambulance Service (QAS) for more than 20 years. In June 2016 he and his partner responded to an urgent call about an eight month old vomiting blood. Less than 10 minutes later they were at the infant’s residence where our client began to assess the infant’s health. Given the serious circumstances, our client conducted a rigorous head-to-toe examination of the baby assisted by the baby’s mother, and grandmother, who was herself an enrolled nurse. Following examination the baby was transported to the local hospital, and was released after getting the all clear after a few hours. A short time later our client was reported by his junior and less experienced partner for having inspected the baby’s genital area during the assessment, suggesting that the examination was somehow indecent or worse, potentially sinister. Our client was suspended as a result. The QAS reported our client to the Office of the Health Ombudsman. The Ombudsman issued an Interim Prohibition Order (IPO). The IPO restricted him from providing any health service to persons under 18. The Ombudsman concluding that he posed a serious risk because the conduct occurred while attending to a child. The Ombudsman confirmed the decision to issue the IPO that the assessment, conducted in the presence of the mother and grandmother, may have been criminal and of  a sexual nature! The effect of the IPO included that our client would have to notify any employer of the restriction, and with it carry the burden of what a restriction like that implies. The IPO stopped out client working as an ambo immediately. Following the imposition of the IPO the Ombudsman investigated our client’s conduct as a paramedic generally, fishing for conduct which could be framed as concerning in an attempt to bolster their reasons for imposing the IPO. Evidence from the Ombudsman would later concede that none of this conduct would ever be subject to disciplinary action. Desperate to return to work helping the people of his community, and clear his name of the vile smear at the heart of the Ombudsman’s decision, our client sought the assistance of Hall Payne to apply to the Queensland Civil and Administrative Tribunal (QCAT) to review the decision. This application was made on the basis that: there were no reasonable grounds to impose the IPO; our client’s conduct did not pose a serious risk; and the imposition of the IPO was not necessary to protect public health or safety. In response to this the Ombudsman sought to extend the IPO, claiming that our client should be restricted from treating any patients. At hearing, the Ombudsman changed their argument, stating that the issue was not that there had been a serious risk to the child, but that the examination was performed without any reasonable clinical justification and, when considering the other conduct they had discovered through their investigation, our client had shown a pattern of non-compliant behaviour. On this basis, they argued there was a risk that our client would engage in further conduct that lacked clinical justification. In an overwhelming victory for our client, the Tribunal rejected the Ombudsman’s arguments. QCAT found there was no evidence to establish a pattern of non-compliant behaviour, nor to warrant concern for public safety. Instead, the QCAT member found that the Ombudsman’s submissions were so abstract that they could not support a reasonable belief that our client posed any risk. Our client’s right to practice without restrictions was restored in full. Get help from an employment lawyer There’s a lot at stake in professional disciplinary matters. If you find yourself subject to an investigation by the Ombudsman, or your professional registration Board, advice from experts can save your career. Our Employment and Industrial Relations team is recognised as one of Australia’s top employment law firms working with unions and employees, and offer specialised knowledge in professional discipline. We have assisted hundreds of people subject of complaints to professional regulators across the country. https://www.hallpayne.com.au/blog/rss/blog/2017/november/hall-payne-lawyers-restores-ambo-s-reputation-and-job/ Thu, 30 November 2017 00:00:00 It is a cruel reality that those people whose job it is to help others, are most often the victims of violence in the workplace. Most front line ambulance and hospital staff would be able to tell you story about being subjected to violence by a person who needs the care they are trying to provide. However, it is not just those workers whom you immediately think of that are affected by workplace violence. Here at Hall Payne, we see hundreds of ordinary hard working people who are subjected to violence in their working life, including Teacher Aides, Personal and Residential Care workers, Aged Care workers and airline Cabin Crew. The effects of workplace violence can be significant. Along with physical injury, the psychological impact of being assaulted in a familiar place while simply going about your work can be devastating. Anyone injured in these circumstances should be eligible for workers’ compensation benefits, and entitled to receive payment of weekly benefits and medical expenses while they recover. In addition, a worker injured in these circumstances may also have a common law claim for damages against their employer, for breaching its duty of care to the worker. Whether or not an employer has been negligent will come down to the individual circumstances of each case. An Employer’s Obligations So what are an employer’s obligations when it comes to keeping staff safe from workplace violence? An employer has a duty of care to its workers. Elements of that duty involve providing a safe workplace and taking all reasonable steps to prevent a foreseeable risk of harm. Therefore, any employer who places a worker in a situation where there is a foreseeable risk of violence must consider how that risk can be managed, and put in place policies and procedures to reduce that risk. An employer will need to look at the potential risk of violence to its workers, at an industry level, an organisational level, and a personal level. An employer will need to ask itself: Is it in a high-risk industry where violence towards staff is common and well known? If so, it will need to have taken significant steps to assess and address that risk because the likelihood of the event occurring is high. Is it a high-risk organisation? If an organisation provides services to persons who might be likely to inflict violence on its staff, it should make an assessment of the likelihood of violence, train its staff in how avoid or defuse difficult situations and have procedures in place to respond to incidences of violence so they do not re-occur. Is it a high-risk personal situation for the worker? Where workers are in close contact with individuals, such as caring for a person one on one (and particularly if that person poses a risk of violence because of illness, injury, disability or addiction) an assessment of the individual involved and the risk they pose to the worker is essential. Serious Lawyers for Serious Injuries Not all workplace violence is preventable, and not all workers injured in such circumstances will be able to successfully sue their employer. However, getting the right legal advice from lawyers who understand the sectors where these kinds of events take place, may make all the difference. https://www.hallpayne.com.au/blog/rss/blog/2017/november/violence-in-the-workplace/ Mon, 13 November 2017 00:00:00 Hall Payne Lawyers has again been recommended among Queensland’s top work injury lawyers, with Hall Payne Principal   Cameron Hall   named as one of the State’s leading lawyers in the area. Doyle’s Guide, the definitive listing and commentary on the profession within Australia, recognises leading lawyers and law firms as determined by a ranking system. These rankings are determined through peer-based review, and interviews with clients, peers and relevant industry bodies. Their listings analyse this research to identify the highest achievers in the area. This year’s listing of leading lawyers and firms in work injury compensation details solicitors practising in workplace injury, accident and WorkCover matters in Queensland. Identified by the State’s defendant insurance lawyers, the listing acknowledges expertise and abilities across these areas of practice. Hall Payne returns to both categories in 2016 after being featured in the 2015 Doyle’s Guide recommendations. The recognition acknowledges Hall Payne’s commitment to protecting the rights of workers, and Cameron Hall’s long-standing reputation as one of Brisbane’s leading workplace compensation lawyers. This recognition in the area of work injury compensation follows a remarkable showing in the employment law categories for 2016, where Hall Payne Principals   Luke Forsyth   and   Luke Tiley   were both recognised at a   state   and   federal   level, as was the firm. 2016 also saw recognition of Hall Payne Senior Associate   Juliana Virine   as a rising star in the area of employment law. If you’ve been injured at work and need help accessing compensation, our award winning team can help. Please contact us via our   contact page   or on   1800 659 114   for a consultation today. https://www.hallpayne.com.au/blog/rss/blog/2017/november/queenslands-top-work-injury-lawyers/ Tue, 07 November 2017 00:00:00 Our client sought compensation for multiple injuries sustained at work after being crushed by an automated-robotic arm. Smith’s claimed that a latent defect was responsible and denied liability. This was despite two ‘near misses’ putting them on notice that they needed to do more. Mrs Peapell, our client, was dedicated to her job, having worked for Smith’s Snackfoods as a Packing Machine Operator for 13 years. On the morning of her injuries, she started work as she would any other day. While at work cardboard jammed up one of the packing machines she was working on, causing it to stop.  Mrs Peapell went inside the machine to clear the cardboard – a fairly routine task that was necessary to keep the production line flowing. Once cleared of the jam, the machine automatically restarted. Moving to pick up the next lot of cardboard, tragically it collected Mrs Peapell too – resulting in injuries to her chest and back as well as hypoxic brain injuries which caused pain and suffering and shortened her working life. This shouldn’t have happened – with both parties recognising that it shouldn’t have been possible for the door to open while the machine was geared to automatically restart. Smith’s argued they had no way of knowing that this could occur, and there was nothing they could have been expected to do to prevent the accident. We argued this wasn’t the case. A year earlier two ‘near misses’ had taken place on the same machine, in comparable circumstances. These near misses were found to have put Smith’s on notice that the equipment needed careful monitoring and attention, even where the manufacturer advised that the issue had been fixed. Expert evidence from both sides further demonstrated that there was an ongoing need for regular inspection, which would have revealed a need for maintenance that could have seen the accident avoided. Judge Ryrie held that this had resulted in the creation of an unsafe system of work, with Smith’s having breached their duty of care. This breach was found to have exposed Mrs Peapell to a foreseeable risk of harm or injury, injuries that they were ultimately responsible for. Smith’s argued that Mrs Peapell had contributed to her injury as a result of her own negligence. Smith’s argued that rather than entering the machine after it stopped during the fault, Mrs Peapell should have pressed the “stop” button and then entered. Judge Ryrie found that this had not been standard procedure, and that without training and direction about how and when to enter the machine this could not be relied upon to establish contributory negligence. Judge Ryrie found in favour of our client, with no finding of contributory negligence. Get help from a personal injury lawyer If you’ve been injured at expert legal advice can assist you in claiming the compensation you need to get your life back on track. Please talk to one of our Personal Injury lawyers today.   Call   or   contact  us  for a free initial consultation today. https://www.hallpayne.com.au/blog/rss/blog/2017/november/smith-s-liable-for-compensation-for-multiple-injuries-as-hpl-client-wins-against-snackfood-giant/ Fri, 03 November 2017 00:00:00 Mark was an experienced rigger working for a crane, rigging and hoists business in Queensland. Mark’s leading hand directed him to assist loading a portion of tower crane on to a truck for delivery. To perform the task, the work crew were instructed to use an unregistered and unsafe mobile crane. Mark raised concerns with his leading hand about the unsafe state of the mobile crane; noting it had numerous defects, was not registered, and the tower crane portion exceeded the safe weight limit. The leading hand rejected Mark’s proposal to use a larger crane for the task, as it would take up too much time. The leading hand proceeded to undertake the task of slinging the load. Cruelly, whilst the leading hand was driving the mobile crane out of the workshop, part of the load came in contact with the workshop wall causing the load to shift and swing back, contacting Mark’s head and knocking him to the ground unconscious. Mark sustained a serious neck injury in the incident and has not returned to work since. Mark’s claim for workers’ compensation was accepted. However, the internal and external safety investigations undertaken following the incident failed to properly examine the failings that caused the incident and did not recommend any action be taken against Mark’s employer. Nevertheless, Hall Payne Lawyers persisted with Mark’s common law claim, alleging the employer had breached its duty of care by failing to provide safe plant and equipment. The insurer for the employer rejected liability during the first round of negotiations. To counter the investigations undertaken by the employer, Hall Payne Lawyers engaged an independent engineer to investigate the circumstances of the incident. The independent engineer found numerous failings on the part of the employer that contributed to the incident. The insurer eventually accepted liability for the claim prosecuted by Hall Payne Lawyers. Hall Payne Lawyers secured a significant financial settlement for Mark, without Mark having to set foot in Court. Mark’s disability caused by the incident will continue to impact him and his family. The significant financial settlement will, however, assist Mark to move forward with his rehabilitation and provide financial security for his family into the future. https://www.hallpayne.com.au/blog/rss/blog/2017/october/serious-neck-injury/ Wed, 25 October 2017 00:00:00 The Fair Work Commission has condemned Glencore for unfair or capricious conduct that is undermining the collective bargaining process and the freedom of association of employees. Deputy President Asbury noted that the conduct occurred at a critical time in the negotiations. Glencore employees have engaged in protected industrial action and maintained their bargaining position in the face of being locked out for an extensive period. During the industrial action the company balloted a proposed agreement. Over 99% of employees voted overwhelmingly to reject it. After the result of the ballot was announced, the company issued letters that threatened members with the possibility of losing their jobs because of alleged activity at the picket line and Facebook posts in a private Facebook group. The company also sought to ban the wearing of CFMEU clothing at the mine. The drafting of the letters coincided with results of the ballot for approval of the Company’s proposed agreement and the overwhelming rejection of that proposal by employees. The Commission found that the presentation of the letters to members was unfair and capricious because it was related to the employees’ rejection of the agreement. It was also determined by the Commission that there had been a concerted effort by the company to investigate and uncover social media posts made by CFMEU members employed by Glencore and those supporting them when drafting the allegation letters. With regards to the CFMEU clothing being banned, the Commission said, other than the fact that the shirt in question is a particularly unattractive shade of fluorescent green and is branded with the name of the CFMEU, there is nothing out of the ordinary about it. The Commission also took the unusual step of finding that the company conducted surveillance of employees in the township of Tieri, and of ordering the company to cease such surveillance on the basis that it breaches the good faith bargaining provisions of the Act. With workers’ jobs being threatened and the employer’s unfair and capricious conduct during protected industrial action, the CFMEU turned to Hall Payne Lawyers.   Luke Tiley   and   Kris Birch   took on the case. A legal strategy was developed to preserve the workers’ jobs and to restore the balance of bargaining power. The Commission’s decision is a great outcome for the CFMEU and its members who work at the Oaky North Mine. https://www.hallpayne.com.au/blog/rss/blog/2017/october/glencore/ Tue, 24 October 2017 00:00:00 In a significant win for good sense and workers’ protections, Queensland now has Industrial Manslaughter laws. These laws are long over-due. Since November 2007 over 100 Queensland construction workers have died on the job. One of those killed was Jason Garrels. He was just 20 years old when he died at a construction site in Clermont in 2012. He had only been working there for nine days. During a clean-up of the outdoor site, he was asked to move a switchboard box however its covering had slipped and the box came into contact with live wires. Jason was electrocuted and died. The law is a deterrent designed to ensure that workers like Jason return home from work to their families. It does so by making it a prospective 20-year term of imprisonment for individuals and potential fines of up to $10 million for a corporation convicted of industrial manslaughter. The legislation is also directed at senior executives of corporations who can now be the subject of the specific charge of industrial manslaughter if someone dies at their workplace as a result of negligence. The penalties will serve as a deterrent to employers and contractors who are tempted to cut corners when it comes to safety in the workplace and to prevent those who do so from hiding behind a corporation. The new Industrial Manslaughter Laws will ensure that Queensland’s work, health, and safety framework is robust and operates as an effective deterrent to those who would choose to disregard safety at work. Hall Payne Lawyers assisted in preparing submissions for these long over-due Industrial Manslaughter Laws. For further information please contact   Dale Blackmore   on 1800 659 114. https://www.hallpayne.com.au/blog/rss/blog/2017/october/industrial-manslaughter-no-one-is-abovethe-law/ Sun, 22 October 2017 00:00:00 Hall Payne Lawyers along with the ETU, CFMEU, and AMWU representing workers at Brisbane City Council have successfully stopped Brisbane City Council from acting unilaterally from putting an agreement out to ballot that they didn’t agree to the terms of. Before the ballot Brisbane City Council also attempted to deny the employees represented by their union from having a saying by unilaterally determining that they were not part of the negotiations, even though they had been from the start. It was not until around a week after Brisbane City Council sent the proposed agreement to employee to vote on that Brisbane City Council gave notice to the unions that they no longer intended to negotiate with them in relation to the proposed bargaining instrument. The commission also noted that Brisbane City Council made a number of submissions, most of which were not supported by any evidence. The commission also found that there was a reasonable case to be tried that all relevant parties, including employees represented by the unions, need to agree on the terms of the agreement before it is balloted. The substantive hearing should occur quickly to determine, for the first time, how the agreement making provisions of the new Industrial Relations Act 2016 operate. The decision will have wide-ranging implication for state-system bargaining. Hall Payne is one of Australia’s leading employment law firms. If you believe your employer has treated you unfairly or prevented you from exercising your workplace right, Hall Payne can help. Get help from an employment lawyer If you have an employment law or industrial relations matter, expert advice from Hall Payne can help. Contact us via our   contact page , or on 1800 659 114 for a consultation today. https://www.hallpayne.com.au/blog/rss/blog/2017/october/qirc-brisbane-city-council-can-t-act-unilaterally-and-determine-who-isn-t-part-of-negotiations/ Sun, 15 October 2017 00:00:00 In a test of Queensland’s laws around peaceful assemblies, Queensland’s Supreme Court has rejected an attempt by Glencore to stop Union members exercising their democratic and industrial rights. The CFMEU has been using peaceful assembly legislation to organise member and community pickets outside the Oaky North Mine near Tieri in Central Queensland. The protests have been held to further the bargaining efforts of others. Glencore sought a declaration that the assembly was not taken to have been approved for the purposes of s10(1) of the PA Act and argued that the PA Act and the Fair Work Act need to be read together. Justice Jackson in a decision said “nothing” in the PA Act suggested that the need for coherence with the terms of the PA Act and the FW Act resulted in the assembly’s activities being outside the scope of an authorised public assembly. Justice Jackson also rejected Glencore’s position that the PA Act didn’t enable authorisation of assemblies for longer than a day. The CFMEU’s Stephen Smyth said that the Supreme Court’s ruling was a “good decision that allows our members to continue to attend peaceful assembles to protest about being locked out of their jobs for 60 days”. Luke Tiley , Director of Hall Payne Lawyers, represented the CFMEU in the matter. Luke said: “The decision affirms the important role that the Peaceful Assembly Act can play during enterprise bargaining disputes in Queensland. It is now beyond doubt that Queenslanders enjoy the same rights in those circumstances as persons protesting under the comparable New South Wales legislation”. If you have an employment law or industrial relations matter, expert advice from Hall Payne can help. Contact us via our  contact page , or on 1800 659 114 for a consultation today. https://www.hallpayne.com.au/blog/rss/blog/2017/september/queensland-supreme-court-rules-peaceful-assembly-laws-dont-govern-unions-protests/ Fri, 22 September 2017 00:00:00 After 6 years of dedicated service, Ms Assiri, a nurse and a single mum, who was also caring for her elderly mother was given devastating news – she would not be given any further shifts and that her contract would not be renewed. Previous authority of the Tasmanian Industrial Commission set a precedent that casual employees in the state service were not protected from being unfairly dismissed because they did not have an expectation of on-going employment. Indi Gunadasa   from Hall Payne Lawyers took on her case , “Our client had been out of work for some time, had a family, which included her children and elderly mother to support and needed someone to fight for her” said Indi. “I could see straight away a number of issues with her treatment, but the state of the law at that time was that she couldn’t challenge her dismissal, so we decided to try and change the law” Hall Payne Lawyers argued that the previous authorities were incorrect and was successful in that argument, with the Commission finding that casual employees across the entire Tasmanian state service could be protected from unfair dismissal. This landmark ruling also considers whether the Tasmanian government had the prerogative to employ casual employees at all as the State Service legislation did not provide for the engagement of casual employment. The Commission agreed with the arguments made by Hall Payne Lawyers that the Tasmania government could not employ Ms Assiri as a ‘fixed-term casual’. Both the finding that casual employees are protected from unfair dismissal and the Tasmanian government may not have the power to employ employees as causal has far ranging implications for the Tasmanian state service. “Casual employees across the State Service in Tasmania need to now know that they have rights. If they stopped getting shifts or are otherwise sacked, they can appeal that decision to the Tasmania Industrial Commission”, says Indi. Hall Payne is one of Australia’s leading employment law firms. If you believe your employer has treated you unfairly or prevented you from exercising your workplace right, Hall Payne can help. If you have an employment law or industrial relations matter, expert advice from Hall Payne can help. Contact us via our   contact page , or on 1800 659 114 for a consultation today. https://www.hallpayne.com.au/blog/rss/blog/2017/august/unfair-dismissal/ Mon, 14 August 2017 00:00:00 A recent full bench decision of the Fair Work Commission has determined that it is more than just a person’s position description that determines a person’s primary purpose of employment. The Full bench also stated that an employer couldn’t argue that an employee is ineligible for union membership based on their position description. Recently a local utility employer in Queensland argued that an employee was ineligible to be a member of the CFMEU, because, although he was specialised in what he did, the employer engaged him in a general role. The CFMEU challenged the employer’s positon arguing that the employee was specialised in what they did and so could be a member of their union. At first instance, the Fair Work Commission agreed that they could be a member of the CFMEU. The first decision was appealed to the Full Bench of the Commission. The utility company said that an employee’s position description determined their primary purpose of employment and that this was determinative of their eligibility to join their union and be represented by them. The Full Bench did not grant the appellants permission to appeal and said that the first decision did not contain any errors. Will Ash   from Hall Payne’s Union Law represented the CFMEU. “A position description is not determinative of the primary purpose for which an employee is employed. You need to look at what the person actually does,” said Will Will continued highlighting that an employee cannot simply issue generic position descriptions and then argue that employees are not entitled to be a member of a union based on the position description. As home to some of Australia’s leading employment law and professional discipline lawyers, Hall Payne can provide assistance with all employment and professional discipline issues. Contact Hall Payne on 1800 659 114 or via our   contact page   to speak to one of our experts today. https://www.hallpayne.com.au/blog/rss/blog/2017/august/union-membership/ Fri, 11 August 2017 00:00:00 Hall Payne is delighted to announce the appointment of   Joseph Kennedy   as a Principal of Hall Payne Lawyers. Over the past decade, Joe has become known as one of Sydney’s most skilled and dedicated employment and industrial relations lawyers. An accredited specialist with the NSW Law Society, Joe is widely recognised as an expert in his area, and has advocated in most Australian courts and tribunals with a focus on Fair Work Commission and Federal Court matters. Joe has a wealth of experience acting for unions and employees, having worked as a lawyer with the Australian Manufacturing Workers’ Union and United Voice before moving into private practice. This experience, mixed with Joe’s dedication to his clients and a commitment to finding practical solutions to complex legal problems, has seen him make a real difference to working people’s lives. “Hall Payne consistently operates at the cutting edge of employment and industrial law practice in this country, and I’ve always held them in high regard,” Joe said, following his appointment. “The firm strives to push to boundaries of the law to achieve real and lasting change in the lives of working people, and I couldn’t be prouder to now be a part of the leadership team at Hall Payne. I look forward to our continued work fighting for social justice and achieving positive outcomes for our clients.” Based in the Sydney office and with a practice that includes clients in Queensland and the Northern Territory, Joe is an essential member of Hall Payne’s industrial relations and employment law team. His contributions have been invaluable to a team independently recognised as one of the best in   Queensland,   New South Wales    and   Australia . The appointment is a credit to the Sydney office which has experienced extraordinary growth across its three years in operation. “Hall Payne’s expansion into New South Wales continues to strengthen, and we’re thrilled to see that continue under the leadership of Joe, who will join me in directing our Sydney operations,” Luke Forsyth, Sydney Principal, said of the appointment. “In just two short years Joe has become an essential part of our team, and his commitment to equality and fairness at work, along with his exceptional legal skill, will continue to be instrumental to our practice, both in Sydney and nationally.” Hall Payne welcomes Joe to this leadership position within the firm alongside current Principals John Payne, Luke Forsyth and Luke Tiley in the industrial relations and employment area. https://www.hallpayne.com.au/blog/rss/blog/2017/august/hall-payne-appoints-joseph-kennedy-principal/ Sun, 06 August 2017 00:00:00 Until recently the word ‘organising’ in an industrial relations context has been widely used but not defined. In a recent decision from the Federal Court of Australia, Justice White said: “It [organising] is a commonly used term in industrial parlance but lacks a precise definition”. So what is ‘organising’ industrial action, what does it involve, and what isn’t considered ‘organising’ industrial action? Justice White gave a summary the principles of what makes up ‘organising’ industrial action under the Fair Work Act 2009.  He stated that the ‘organisation’ of industrial action had to involve the “intentional arranging, bringing about, putting in place, procuring or coordinating of the action in question.” The types of actions that could fall within this definition of ‘organise’ could take on a variety of forms, as the word itself has a lot of connotations attached to it. The Federal court determined that conduct that would be considered ‘organising’ industrial action is conduct that ‘encourages’ or ‘supports’ the action. The court also found that a person who simply assisted in enabling the organisation of industrial action would not satisfy this definition. By way of example, while a union representative telling an employer about employees’ industrial action may be viewed as encouraging and enabling the action to take place, they would on this authority not necessarily be regarded as having ‘organised’ the action. This case demonstrates that for industrial action to be taken for the purposes of the Fair Work Act 2009, “organising” industrial action must be conduct that brings about, manages or maintains industrial action. The full text of the judgement can be found   here . If you require assistance with an industrial dispute, Hall Payne Lawyers has been recognised as one of Australia’s leading employment law firms in Australia for 2017. Contact us on 1800 659 114 or via our   contact page   for more information. https://www.hallpayne.com.au/blog/rss/blog/2017/july/federal-court-clarifies-meaning-organising-respect-industrial-action/ Thu, 13 July 2017 00:00:00 An NT teacher faced deregistration after an inquiry into his private life. Hall Payne successfully defended the matter, helping the teacher keep his job. Earlier this year a teacher in the Northern Territory was facing an inquiry by the NT Teacher’s Registration Board (TRB) into whether he was a fit and proper person to teach.  The teacher’s career was on the line as the Inquiry Board had the power to recommend that his registration be suspended or revoked. Prior to the inquiry hearing, the teacher had been suspended from teaching for a significant period. The TRB stated that they had concerns about his conduct, not related to his work or performance as a teacher but to events in his private life. Thankfully, being a union member he was able to seek assistance from his union, the Australian Education Union. After looking into the matter, the AEU decided that the best course of action was to seek legal advice from Hall Payne’s Union Law.  Joseph Kennedy and Darwin-based solicitor James Burke took on the case. With only a week before the start of the inquiry, Hall Payne developed an effective strategy and took up the fight. Hall Payne was able to demonstrate that despite this isolated event, as a teacher he had an excellent work history. He was honest and diligent in his role and was an asset to the profession and school community. Hall Payne also made the recommendation that instead of losing his registration, if the TRB had any concerns about him that he should be appointed a mentor or some other condition imposed. After a number of months, the TRB inquiry found that he was a “fit and proper person” to teach and be in the classroom. Based on the reasonable recommendations Hall Payne made, the TRB decided that he should have a mentor for a short period and further professional development. He was able to maintain his registration and continue his passion for teaching. He said he is excited about the prospect of returning to the classroom in the very near future. The outcome and the situation faced by this teacher shows the importance of being a union member for protection and having a law firm experienced in employment law and professional discipline as an advocate. AEU NT Branch President Jarvis Ryan commented: ‘The AEU NT Branch is concerned about the wide-ranging powers the TRB has under the Teacher Registration Act to determine who is a “fit and proper” person. While we accept the need for high standards for the teaching profession, we do not believe TRB inquiries of this nature are warranted as they relate to issues that are outside of the work environment. ‘Nonetheless, the TRB has such powers under the Act and we felt it important that our member was able to mount a strong case. Hence the AEU authorised the experienced team at Hall Payne to advocate for our member. Both we and the member are pleased with the outcome, and would remind all NT teachers working in the public sector that our union is there to support you in relation to registration matters.’ As home to some of Australia’s leading employment law and professional discipline lawyers, Hall Payne can provide assistance with all employment and professional discipline issues. Contact Hall Payne on 1800 659 114 or via our   contact page   to speak to one of our experts today. https://www.hallpayne.com.au/blog/rss/blog/2017/july/nt-teacher/ Wed, 05 July 2017 00:00:00 Hall Payne develops a novel legal strategy to obtain documents leaked to the Courier Mail and how they got them in the first place. News Limited also had to pay a significant amount of the Union’s legal costs. In early 2017 Des Houghton of the Courier Mail (published by Queensland Newspapers Pty Ltd, a subsidiary of News Ltd) wrote several articles, which were critical of our client, a prominent Queensland trade union. It was clear to the Union, based on the articles, that someone had leaked its confidential and sensitive documents to Mr Houghton and that the leak had given rise to the articles. The Union was concerned that the person, who leaked the documents, as well as Mr Houghton and News Ltd, may have committed a tortious breach of confidence. The Union turned to Hall Payne to for advice. At the outset, Hall Payne asked for corrections to be made to the articles. News Limited and Mr Houghton initially rejected that reasonable request. However, the following day Mr Houghton published another article that was in effect a “correction” of the previous article. Hall Payne were then instructed to advise the Union as to whether it had a claim for a tortious breach of confidence. We could not do so without obtaining the documents and learning how Mr Houghton gained access to them. Hall Payne therefore devised a novel strategy to investigate those matters: an application to the Supreme Court for “primary discovery” in respect of the alleged breach of confidence. Naturally, Mr Houghton and News Limited opposed the application. However, the application was ultimately successful for the Union. It forced News Limited and Mr Houghton to give the leaked documents to Hall Payne and the Union. Further, News Limited and Mr Houghton also had to pay a significant component of the Union’s legal costs. The documents that the Union ultimately obtained were in an unredacted form. This outcome was secured for the Union without the time, expense and risk of a contested hearing in the Supreme Court.  By devising this novel strategy Hall Payne was able to assist the Union by obtaining an outcome that was previously thought to be impossible. This is the first known successful application of its kind. The Union will now be able to pursue its litigation for a tortious breach of confidence if, and when, it wishes. If you require assistance with defamation, breach of confidence or any other aspect of media law then please contact HPL Directors   Luke Tiley   (Brisbane) or   Luke Forsyth   (Sydney) on 1800 659 114 or via our contact  page  for more information. https://www.hallpayne.com.au/blog/rss/blog/2017/june/is-it-true-or-did-you-read-it-in-the-courier-mail/ Tue, 20 June 2017 00:00:00 Frustrated by failed attempts to get access to his son, a desperate father turned to Hall Payne. Within 12 Days, our family law team won him the visitation rights he had been denied for 2 years Earlier this year a young Queensland father was seeking to have a relationship with his three-year-old son living in South Australia. However, the young boy’s mother would not let the little boy have unsupervised visits with his father. She would often cancel the visits. To get access to his son, the father sought advice from a law firm in Queensland. After 2 years, several failed negotiations, and commencing proceedings in the Federal Circuit Court of Australia, the father was still being denied access to his son. Desperate to see his young son, and after 2 years of his former partner continuing to deny him access, the father sought advice and help from Hall Payne Lawyers. Hall Payne’s Kate Tolley took on the case. After reviewing the matter, Ms Tolley advised the father that the mother had no grounds in stopping him from seeing his son. She also outlined that the previous orders were ineffective because there was no specified dates and times for the father to spend with the child. With only 12 days until the next hearing, Ms Tolley had to act quickly creating a legal strategy to win access for our client. After just one hearing, Ms Tolley’s successful strategy resulted in the court ordering that the father and his family be granted access to the child. Thankfully, the next day the three-year-old boy was able to spend time with his father and grandmother. “ I   was so happy to be able to see my son again. If it wasn’t for Hall Payne I don’t know what I  have done. I now get to see my son again and this is the best result ever ” said the father. Hall Payne gaining access for the father was a significant win for the father and the young boy. The mother was strongly opposed to the father and son having a relationship and sought to stop unsupervised visits. With Hall Payne’s winning strategy, our client can now have a relationship with his young son, free from unfair interference. Hall Payne Lawyers can help with your family law needs. If you require assistance with any family law issues or needs we can help. Contact Hall Payne Lawyers on 1800 659 114 or via our contact  page   for more information. https://www.hallpayne.com.au/blog/rss/blog/2017/june/visitation-rights-dispute-hall-payne-reunites-father-son-after-2-years-of-separation/ Thu, 15 June 2017 00:00:00 An Advance Health Directive (AHD) is a legal document used in Queensland which allows you to give instructions about your health care if you can’t make decisions for yourself. In this article we are referencing Queensland requirements to complete such a document. There are similar documents in other states and territories of Australia each with different names; in NSW and Tasmania it is called an Advance Care Directive and in the Northern Territory it is called an Advance Personal Plan. If you require estate planning documents in any of those locations, please   contact   a suitable Hall Payne office. What does an Advance Health Directive (Queensland) provide? An AHD  makes your wishes known about what you want to happen if an incident were to occur, such as incurable disease or a brain injury. It includes information that health professionals should know about you such as your health conditions, allergies, and religious, spiritual or cultural beliefs that could affect your care. You can also state the quality of life that would be acceptable to you. Such as whether you want to be resuscitated or given assisted ventilation, nutrition and hydration. It also enables you to appoint an attorney for health and personal matters. Who can make an AHD? Anyone who is over the age of 18 can make an AHD as long as they have the mental capacity to do so. When Does an AHD start? Your directive will apply at any time when you are unable to decide for yourself, or you may want it to apply only if you are terminally ill. Does a doctor have to be involved when making an AHD? To make an AHD you need to take the document to your doctor so that they can advise you about the consequences of the decisions that you have made. It’s a requirement that your AHD is signed by your doctor. Do I need witnesses when signing my AHD? There are special procedures that must be followed in having your signature witnessed. Your witness must be over 21 and  a qualified witness; for example a Justice of the Peace, Commissioner for Declarations, lawyer or notary public. It’s important to note that your witness can not be: your attorney for personal matters your relative or a relative of your attorney a current health provider a current paid carer (which does not include a person on a carer’s pension) a beneficiary of your will. It’s very important to get it right! Where should I keep my AHD? There is no register of Advance Health Directives. The document needs to be kept in a safe place so that it can be used if required. You should advise your loved ones where your original AHD is stored. Can I change my AHD? You can change the provisions in your Advance Health Directive at any time while you have the capacity. Don’t forget to tell your family that you have an AHD. In Summary You can make an Advance Health Directive if you are over 18 years of age You must have capacity to make an AHD Your doctor must sign your AHD Your witness must be over 21 and qualified ( Justice of the Peace, Commissioner for Declarations, lawyer or notary public) Store your AHD in a safe place and tell your family where it is Hall Payne Lawyers can help with all your   estate planning   needs. If you require assistance with an Advance Health Directive (or Advance Care Directive or Advance Personal Plan) or any other estate planning needs we can help. Contact Hall Payne Lawyers on 1800 659 114 or   select a suitable office location . https://www.hallpayne.com.au/blog/rss/blog/2017/may/what-is-an-advance-health-directive-why-do-you-need-one/ Thu, 25 May 2017 00:00:00 In a win for QNMU and ANMF members, the Federal Court has ruled there were no irregularities in the 2015 ANMF election for the position of Federal President and Federal Secretary. Failed candidate Michael Clancy made allegations that the election was full of irregularities that affected the outcome and called for an inquiry into the results. Hall Payne represented the QNMU in those proceedings. Amongst other things, Mr Clancy alleged that the ANMF had issued publications that favoured the incumbent. Justice Siopis found that there was no basis for that claim and that Mr Clancy had not established that the publications affected the result of the election, noting that Mr Clancy only received about 20% of the vote for Federal President and 34% for Federal Secretary. Justice Siopis dismissed Mr Clancy’s allegations that there had been a breach of the ANMF’s rules and that the QNMU and ANMF had breached section 190 of the FW(RO) Act before concluding that Mr Clancy had failed to establish that there were any reasonable grounds for an inquiry into the election. The decision upholds the result of the election and confirms the democratic mandate of the National President and National Secretary who members of the QNMU overwhelmingly supported. Hall Payne Lawyers are experts in the area of Industrial Relations and associated litigation. If you require assistance with any associated IR issue and want to achieve the best possible outcome, we can help. Please contact Hall Payne Lawyers on   1800 659 114   or via our   contact page . https://www.hallpayne.com.au/blog/rss/blog/2017/may/win-for-qnmu-members-court-finds-no-irregularity-in-anmf-election/ Mon, 15 May 2017 00:00:00 The recent decision of the Full Bench in the Fair Work Commission (FWC) in Kentz Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (C2017/999) serves as a reminder of the importance of proper, clear drafting of agreements.   This week’s FWC decision in Kentz Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (C2017/999) is another win for ETU members and their lawyers Hall Payne Lawyers in protecting worker’s rights and conditions. The ETU has been pursuing the issue of the payment of income protection and the interpretation of the clause 19 (a) in their certified agreement with Kentz Australia for the past couple of years. In relation to the issue the FWC mentioned the interpretation of an agreement must be read in the context of the agreement along with the legislative background against which the agreement is made and in the way it operates. The commission also noted that certified agreements commonly lack the “precise drafting of legislation”. The FWC found that the problem of poor drafting of enterprise agreements is one that frequently occurs in Commission proceedings, noting that the parties to an agreement “naturally adopt interpretations which favour their interest, and a refusal to compromise leads to litigation of this sort.” This recent decision highlights the importance of an agreement clearly stating what is agreed to by the parties, and not based on assumptions, and, more importantly, of the parties to the agreement abiding by what has been agreed. The FWC highlighted that the interpretations of 19(a) in the agreement was ambiguous and that the reference to ‘an approved insurer’ was a reference to an income protection insurance product of one of the named insurance bodies in clause 19(a)(1) – (3), or such other insurance products that is agreed between the parties to the agreement. 19(a) reads: “(a) The employer will take out income protection insurance for all Employees that provides cover for the Employee for any period of absence on leave without pay such as.          (1)  Energy Super Protection (ESP) – for electrical and instrumentation employees and Storepersons who are members of SPEC Super – ESP (a division of SPEC Super) or Australian Income Protection Pty Ltd.         (2) Wage Guard – for mechanical and fabrication employees, non-destructive testing employees and Storepersons.       (3) Chifley or Construction Income Protection Ltd – in respect of all classifications within the scope of the classification structure except those classifications listed above in sub-clauses 19(a)(1) and (2) and appropriate Storepersons.” The Full Bench also said, “The clause is not a riddle, wrapped in a mystery, inside an enigma, although at some points in the proceedings it perhaps threatened to become so. It is fair to say that the parties and the Commission struggled to make sense of the ordinary meaning of the words. The clause is ambiguous.” “It is regrettable that …more attention was not focused on clear drafting,” commented the Commission. The ETU Queensland & NT Branch said they are glad to be working with Hall Payne Lawyers, who are committed to fight for union members’ rights. In a statement to members the ETU Queensland & NT Branch said that now that there is a Full Bench decision, the ETU expects the employer will apply the agreement correctly. The ETU said they hope that the employer accepts the decision by the FWC and abides by the provisions of the agreement. Kentz Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2017] FWCFB 2600 (11 May 2017) Get help from an employment lawyer If you suspect an employer has contravened a term of an Agreement but can’t see the path towards a resolution, advice from experts in the area can help. Our Employment and Industrial Relations team is recognised as one of Australia’s top employment law firms working with unions and employees. To speak to a member of our team   contact us   via our contact page, or on   1800 659 114 . https://www.hallpayne.com.au/blog/rss/blog/2017/may/fair-work-commission-highlights-the-need-for-proper-clear-drafting-of-agreements/ Fri, 12 May 2017 00:00:00 The Queensland Industrial Relations Commission has accepted that an employer’s conduct surrounding inaccurate No Go Zone training was unreasonable management action that caused miner’s injury.   The Queensland Industrial Relations Commission (QIRC) has found that inaccurate training, and directions provided to our client, an underground miner, caused his psychological injury, rejecting arguments from the Workers’ Compensation Regulator that those directions amounted to reasonable management action undertaken in a reasonable way. Our client was undertaking training in relation to No Go Zones in an underground mine. The training information contained conflicting and inaccurate information about the safe working distances to be observed when operating plant and machinery underground.  Due to the inaccuracies, our client could not complete the required assessment and was not authorised as competent in relation to the No Go Zones in his work area. The next day, our client alerted management to the inaccuracies in the training paperwork. Management responded by telling him to “get down there and cut coal, get underground.” When underground our client again raised his concerns with his supervisor, but was directed to agree that he understood there was a problem with the paperwork, and then get to work. Our client refused the direction, and raised his concerns with a training assessor, who also advised that he would not follow the direction, reminding the supervisor of competency procedures. Unable to reconcile what his employer was directing him to do and its disregard for its own safety procedures,  our client broke down. He described subsequently being escorted to the surface in a ‘blithering mess’. Medical evidence confirmed our client sustained a psychological injury because of this incident. The workers’ compensation insurer initially rejected our client’s claim for compensation, with the Regulator upholding the rejection on review. Hall Payne appealed this decision to the QIRC. The QIRC found that the direction to proceed to the coalface despite not being assessed as competent did not constitute reasonable management action taken in a reasonable way, and that it posed a safety risk to our client and his fellow workers. The QIRC made particular note that underground mining is an industry where  workplace  health  and  safety  is  considered  paramount  and where the consequences of the employer providing  inaccurate  information and training regarding safe working distances could lead to serious injury, or possibly death. In its findings, the QIRC set aside the decision of the insurer to reject our client’s application, ordering that his claim for workers’ compensation be accepted. Get help from a personal injury lawyer Hall Payne have regular success in appealing decisions of Insurers rejecting workers’ injuries. Strict time limits apply in appealing these decisions, so contact us through  our inquiry form , or on  1800 659 114 , to book a free initial consultation today. https://www.hallpayne.com.au/blog/rss/blog/2017/may/qirc-accepts-direction-after-inaccurate-training-amounted-to-unreasonable-management-action/ Fri, 05 May 2017 00:00:00 The Federal Court has found in favour of the CFMEU, with yet another ABCC case dropped after it was deemed they had no reasonable prospects of success. In October 2016 the Director of the Fair Work Building Industry Inspectorate, now known as the Australian Building and Construction Commissioner (ABCC), commenced proceedings against the CFMEU and one of its officials. The ABCC alleged contraventions of the   Fair Work Act 2009   (Cth) by the official and alleged that the CFMEU had also contravened the Act as a result of the same conduct. The contraventions relied on what was said to have been a “lawful request” made by the official. To establish the contraventions it was necessary for the ABCC to establish that a lawful request had been made within the meaning of section 347 of the Act. Acting for the CFMEU, we made an interlocutory application to have the proceeding thrown out on the basis that no such request had been made. Without establishing this essential element, we argued the ABCC had no reasonable prospect of success. Justice Reeves agreed, saying in an ex tempore judgment on 9 March 2017: ‘I don’t consider that the Commissioner has any reasonable prospects of successfully prosecuting a contravention on the basis of such a request.’ Following the ex tempore judgment on 9 March 2017 the ABCC discontinued its entire case against the CFMEU and its organiser. We also secured from the ABCC an enforceable commitment not to conduct any further litigation on the matter against our clients (including other officers or employees of the CFMEU). The outcome of this matter represents a comprehensive win for our clients, secured at a preliminary stage in the proceeding. To have this matter disposed of at the interlocutory stage meant the outcome was reached without needing to file a defence, or for the CFMEU to be put to the expense of substantive hearings. It demonstrates the value in challenging unmeritorious claims wherever possible. If you require assistance about a civil penalty matter, be it a claim by the ABCC or a claim   against an employer   for breach of the Act, Hall Payne can help. As one of Australia’s leading Industrial Relations firms, we have significant experience in all stages of civil litigation, including penalty litigation. To speak to a member of our team contact us via our  contact page , or on  1800 659 114 . https://www.hallpayne.com.au/blog/rss/blog/2017/march/court-finds-no-reasonable-prospect-of-success-as-abcc-case-dropped/ Fri, 31 March 2017 00:00:00 The recent decision of the District Court of Queensland in Clayton v Jetcrete Oz Pty Ltd serves as a reminder of the importance of credibility of and the reliability of expert evidence in personal injury litigation. The Plaintiff, aged 57 at trial, was employed by the Defendant as a concrete agitator truck driver/operator, and worked two weeks on, two weeks off on a fly-in, fly-out basis at the Ernest Henry Mine in Northern Queensland. A claim was brought by the Plaintiff under the   Workers Compensation and Rehabilitation Act 2003 , seeking damages resulting from an alleged back injury she sustained at work on 13 July 2012 when she was pushing/regulating the flow of concrete down the chute of a concrete truck. Prior to the alleged injury, and during a two-week period off work, the Plaintiff experienced an episode of back pain, and received chiropractic treatment for sciatica. Upon attending work, and before the start of her shift on 13 July 2012, the Plaintiff claimed that she informed two of her supervisors about the injury. Those conversations were disputed at trial. The Plaintiff alleged that her injuries were caused by the negligence of the Defendant. The Defendant denied that it was liable to the Plaintiff for those injuries. Three primary issues for Justice Morzone QC to determine at trial were as follows: Whether the Plaintiff was in fact injured in the way she alleged; Whether the Plaintiff’s injury was caused by the Defendant’s negligence/breach of duty of care; and How much the Plaintiff’s claim was worth if she succeeded. Due to conflicting versions of events between the parties, the Plaintiff was called to give evidence at trial, and the Defendant called three witnesses. The Plaintiff’s case ultimately turned on her honesty as a witness and the reliability of her evidence. She was found to be an unfavourable witness on account of several factors including her version of events, the misreporting of her pre-existing back and psychiatric injuries in the pre-employment process with the Defendant, and the concealment of her financial circumstances following the alleged workplace incident. While Justice Morzone QC found that the first witness called by the Defendant was obstructive, his Honour preferred the evidence of the following two Defence witnesses. The version of events described by these witnesses was in stark contrast with that of the Plaintiff, especially in relation to the mechanism pushing concrete down the chute of the concrete truck. It was because of this evidence that the Plaintiff failed to establish, on the balance of probabilities, that her injuries were caused in the way she alleged. Despite the Plaintiff’s failure to establish that her injury was attributable to any work-related event, the Court also addressed the issues of whether the Defendant owed a duty of care to the Plaintiff, and whether the Defendant breached their duty of care as the Plaintiff had alleged. There is clear authority that in all workplace master/servant arrangements, employers owe a non-delegable duty to ensure reasonable steps are taken for the safety of their employees, including taking reasonable care to avoid exposing employees to unnecessary risks of danger. At law, a person does not breach a duty to take precautions against a risk of injury to a worker unless: The risk was foreseeable; The risk was not insignificant; and In the circumstances, a reasonable person in the position of the person would have taken the precautions. The Court addressed each of these factors, and held that the Plaintiff failed to establish that the Defendant breached its duty of care to the Plaintiff. In making his determination, Justice Morzone QC considered an expert liability report adduced by the Plaintiff, which was found to have failed to provide an objective assessment of the task the Plaintiff was carrying out when she was allegedly injured. His Honour also accepted the Defendant’s submissions that the report and opinion was written through the prism of hindsight. His Honour held that hindsight has no place in the assessment of the risk of injury, relying on the reasoning of Justice Garling in the decision of   Benic v New South Wales   [2010] NSWSC 1039, noting: “ The assessment of the risk of harm is one made in prospect and not in retrospect. Hindsight has no part to play.” His Honour, in addressing the question of damages, concluded that the Plaintiff stood to be awarded $191,366.59 had she succeeded. Get help from a personal injury lawyer If you have been injured because of a workplace injury, Hall Payne’s expert personal injury lawyers can assist you in carefully preparing your case and maximising your compensation entitlements. Call us on 1800 659 114   or contact us through our   online inquiry form for a free initial consultation. https://www.hallpayne.com.au/blog/rss/blog/2017/march/clayton-v-jetcrete-the-importance-of-expert-evidence-in-personal-injury-litigation/ Wed, 29 March 2017 00:00:00 A fundamental failure in the health surveillance systems comes under even greater scrutiny as the Queensland Parliament’s black lung inquiry expands, with a broader terms of reference set to examine the full scope of black lung both above and below ground. Hall Payne have welcomed the interim findings of the Coal Workers’ Pneumoconiosis Select Committee on black lung disease. Hall Payne Principal Linda Brangan said the Parliamentary Committee’s Interim Report seeking to extend the inquiry for a further six months to allow for a broader terms of reference recognised the significance of the evidence obtained thus far, and more importantly the pain and suffering of those afflicted by coal mining dust lung diseases. Hall Payne represents former coal miner Percy Verrall and a number of other current and retired coal miners who make up some of the 19 Queenslanders currently diagnosed with black lung – and had spent hundreds of hours documenting the lives and experiences of those suffering the condition. In 2015 Mr Verrall became the first Australian diagnosed with black lung in 30 years. “We have spoken with Percy about the Committee’s Interim Report and I know this has given him and others hope that steps are being taken to ensure that others don’t have to suffer as he has,’’ Ms Brangan said. “There has been a fundamental failure in the health surveillance systems intended to ensure the protection of coal industry workers from Coal Workers Pneumoconiosis and other coal mining dust lung diseases. There is a 30 year gap in medical, legal and other information to deal with dust diseases arising out of coal mining activities.” “The damning interim findings handed down last night and the decision to extend the Parliamentary inquiry provide a stronger foundation moving forward. “Hall Payne, whilst acting in the interests of those suffering from coal mining dust lung diseases will continue to fight for workers in the coal mining industry and other industries involving potentially dangerous underground environments.’’ The Courier Mail today reported   “ The interim parliamentary report…condemned the Department of Natural Resources, Queensland Health, WorkCover, mine operators, health professionals and others for 30 years of failure .’’ Hall Payne Lawyers are representing those suffering from coal mining dust lung diseases, including CWP and other undiagnosed respiratory symptoms of coal miners, and have been since the first diagnosed case in 2015. Ms Brangan said Hall Payne would continue to work with the world’s leading expert on CWP, Dr Robert Cohen along with recognised Australian Respiratory and Thoracic Physicians to ensure those suffering from coal mining dust lung diseases are adequately compensated. Black Lung: What to do if you’re showing symptoms Get help from a personal injury lawyer We offer a free initial consultation, and discounted rates, to all CFMEU members. If you are diagnosed with black lung or are seeking review of a decision on compensation, contact your union for a referral to discuss your rights. If you require further information please contact us on   1800 659 114   or via our   contact page . Photo credit:  Solidarity Centre, 2014 https://www.hallpayne.com.au/blog/rss/blog/2017/march/black-lung-inquiry-issues-interim-reports-widening-scope-to-examine-full-effects/ Thu, 23 March 2017 00:00:00 After suspecting an Agreement had been breached, our client, the ETU, had limited options moving forward because the relevant project was complete. With the use of pre litigation discovery, we obtained orders giving them access to documents, helping them shore up their position ahead of commencing proceedings. In 2012 the Fair Work Commission approved a Greenfields agreement which covered workers to be employed on the Grosvenor Mine Construction Project. The Agreement applied to any employees of Mainteck, the Prospective Respondent in this matter, working at the project within the scope of the Agreement. Mainteck commenced work on the project around July 2015, finishing in March 2016. Clause 22 of the Agreement required that Mainteck engage any independent contractor, sub-contractor or employees of labour hire companies on the same terms and conditions as if they were employed under the terms of this Agreement. September 2015 Mainteck contracted out work to another provider, Bass Electrical, with 48 employees of that company coming on board. Under clause 22 of the Agreement, all of these workers should have been paid on the same terms and conditions as Mainteck’s employees. Some time after the project finished the Electrical Trades Union (ETU) had reason to believe that sub-contractors engaged by Bass Electrical weren’t paid under the terms of the Agreement, as was required. At this stage, the project was over, employees had all gone back to where they came from and were now spread across the country. These unique circumstances meant that neither Right of Entry provisions nor the provision for accessing employee records under the Act were appropriate mechanisms for the ETU to make further enquiries. The Union came to Hall Payne with the predicament. With a strong suspicion that the Agreement had been contravened, but concerns that getting the case off the ground would be costly, the ETU were stuck as to how to proceed, and against whom they should commence proceedings. On Hall Payne’s advice, the Union made an application for preliminary discovery to obtain documents from Mainteck that would show what steps they had taken to ensure that subcontractors were employed under the terms of the Agreement. The Federal Court of Australia has granted the orders sought, meaning that the union will be able to confirm its suspected contraventions and make a decision about the potentially commencing a claim against Mainteck. Pre litigation discovery is an underused mechanism, but it’s a useful tool that can place potential litigants in a stronger position ahead of commencing proceedings. Hall Payne have had   previous success using pre-litigation discovery , and this result confirms the benefit of strategic thinking to achieve the strongest possible results for our clients. This outcome is also testament to the ETU’s commitment to enforcing their members’ rights at work – before, during and after employment. Get help from an employment lawyer If you suspect an employer has contravened a term of an Agreement but can’t see the path towards a resolution, advice from experts in the area can help. Our Employment and Industrial Relations team is recognised as one of Australia’s top employment law firms working with unions and employees. To speak to a member of our team   contact us   via our contact page, or on   1800 659 114 . CEPU v Mainteck Pty Ltd (QUD891/2016) https://www.hallpayne.com.au/blog/rss/blog/2017/march/pre-litigation-discovery-the-first-step-to-enforcing-agreement-terms-and-conditions/ Wed, 22 March 2017 00:00:00 For as long as it has been measured, Hall Payne has featured as one of Australia’s leading employment law firms. The accolade comes alongside recognition of Principals John Payne and Luke Tiley as being among the nation’s best employment lawyers working for employees and trade unions.   Doyle’s Guide began recording Australia’s leading employment law firms in 2016, with Hall Payne featuring in its inaugural listings. As the definitive listing and commentary on Australia’s leading law firms and lawyers, the recognition from peers across the profession rates as one of the most significant endorsements of the quality of a firm’s practice and service. For the second year running,   Hall Payne has been recognised in the national listing , following on from strong showings in   Queensland   and   NSW   earlier this year. This recognition comes after a year of high achievements across Hall Payne’s employment law and industrial relations team, which has seen   big wins for workers   in the past 12 months. The same survey of practitioners has recognised Hall Payne Principals   John Payne   and   Luke Tiley , recommending them among the   best lawyers in Australia   working with a focus on employees and trade unions. Having spent more than 30 years helping organisations across Queensland, John Payne’s expertise is unrivalled. This continued recognition from peers is the result of the depth of that expert knowledge, and John’s commitment to trade unionism. That same commitment to workers’ rights similarly drives Luke Tiley, who heads up Hall Payne’s industrial relations team. An Accredited Workplace Relations Law Specialist, Luke has been responsible for some big wins across the union movement over the past year – achievements that are clearly recognised by his peers with this ranking. These results firm up Hall Payne’s reputation for providing the best advice and legal representation to employees and unions across Australia. With offices open in Queensland, NSW, Tasmania and the Northern Territory workers across the country can now benefit from that quality of advice. If you have an employment law or industrial relations matter, expert advice from Hall Payne can help.   Contact us   via our contact page, or on   1800 659 114  for a consultation today. https://www.hallpayne.com.au/blog/rss/blog/2017/march/hall-payne-recognised-as-one-of-australia-s-leading-employment-law-firms/ Tue, 21 March 2017 00:00:00 The Federal Court has approved the CFMEU’s interpretation of the Fair Work Act, rejecting BMA’s arguments and finding the union had a right to hold discussion in the dragline’s crib room.   This matter concerned the interpretation of where discussions could take place for the purpose of conducting interviews or discussions under the   Fair Work Act 2009   in circumstances where there was no agreed location for interviews or discussions by permit holders .   Section 492(3) of the Act prescribes that a permit holder can conduct interviews or discussions with certain employees in any room or area: in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks; and that is provided by the occupier for the purpose of taking meal or other breaks. In this case an official of the CFMEU, a permit holder under the Fair Work Act, sought to enter the Caval Ridge mine site to have discussions with employees under s 484 of the Act. The official attempted to reach an agreement with BMA as to where these discussions could take place, but failed. When those discussions failed, the official sought to rely on s 492(3) and use a default location. The employees the official was meeting with were the operators of two draglines that were used for mining operations at the Caval Ridge mine. The relevant draglines are large, heavy excavators that include a cab. Behind the cab is an area that is small room which includes a fridge, some cupboards and a small bench, as well as what was called a ‘half-kitchenette’. The area also had a computer, a couple of chairs, and was used to store safety equipment, like earplugs. While not a purpose built lunch room, the relevant employees was used for taking meals. The CFMEU submitted that as this was the area where the relevant employees usually took their meal breaks, it could be considered default location under s 492(3). BMA argued that because the room or area in question was used for other purposes it couldn’t be considered that it was provided for ‘the purpose’ of taking meal or other breaks. That is, they argued that the legislation required that there was the singular purpose of taking a meal or other breaks, and that for a space to be comply with the terms of s 492(3) it could not also be used for another purpose. After a decision at arbitration in favour of BMA got overturned by a Full Bench of the Fair Work Commission, BMA applied to the Federal Court to review the Commission decision accepting that the crib room was a ‘default location’, on the basis that the decision amounted to a jurisdictional error. The Full Court of the Federal Court rejected this argument. In a joint decision, Tracey and Reeves JJ observed, when considering the text of the phrase ‘the purpose of taking meal or other breaks’: ‘… none of those words, taken individually or collectively, conveys any sense that the room or area concerned must be used for the single or sole purpose of taking such breaks. To the contrary, in our view, those words go no further than signifying that the purpose for which the room or area is provided must include the taking of such breaks.’ Tracey and Reeves JJ went on to analyse the grammar of the provision. They found that the usual grammatical use of ‘the purpose’ meant that the use of the word ‘the’ could not be used to confine the meaning of the word ‘purpose’ in the way that BMA argued. In a separate but supporting judgment, Justice Jessup considered that the key to the construction of the second aspect of the provision was in considering the word ‘provided’, and that where the room had been provided for the relevant purpose (being meal or other breaks) it would meet the requirements of a default location, irrespective of if it was also used for another purpose. As a result of this decision, where a meal break location is a mixed-use area, and that mixed-use includes that one of the employees participating in the discussions takes breaks in the area, then a permit holder can use that location to conduct interviews or hold discussions. As home to some of Australia’s leading industrial relations lawyers Hall Payne can provide assistance with all employment and industrial relations issues. Contact Hall Payne on  1800 659 114  or via our  contact  page to speak to one of our experts today. Case:   Central Queensland Services Pty Ltd v Construction, Forestry, Mining and Energy Union [2017] FCAFC 43 https://www.hallpayne.com.au/blog/rss/blog/2017/march/federal-court-finds-cfmeu-has-right-to-hold-discussions-in-crib-room/ Wed, 15 March 2017 00:00:00 It has been a steady rise for Hall Payne’s NSW office, having been recommended among the leading employment lawyers in Sydney after only 2 years.   Doyles Guide is the definitive listing and commentary on Australia’s leading law firms and lawyers. Each year they release results on the top lawyers and firms in each practice area, as voted by peers across the profession. The prestigious guide has just released its results for NSW, including the leading employment lawyers in Sydney and the State’s top firms. After featuring in   the Queensland listings for six successive years , Hall Payne has recorded its first interstate showing, recommended by Doyles Guide as one of   leading employment law firms representing employees and trade unions. This recognition comes after a year of high achievements working for a growing client base of employees and unions in Sydney and across the State. Giving further cause to celebrate, the NSW listings also named Hall Payne Principal Luke Forsyth as one of the   leading employment lawyers in Sydney . This accolade shows that Luke’s reputation as one of the Country’s leading employment lawyers continues to grow, and is a testament to the quality of skill and service he has built in our Sydney office in such a short time. It is his fourth listing with Doyle’s, and comes after being recognised as one of Australia’s leading employment lawyers in 2016. With an exceptional reputation across Queensland, these results show that reputation continues to grow – this time spreading beyond Hall Payne’s home state.   If you have an employment law or industrial relations matter, Hall Payne’s expert and award winning advice can help. Contact us via our  contact page , or on  1800 659 114  for a consultation today. https://www.hallpayne.com.au/blog/rss/blog/2017/february/hall-payne-recommended-among-the-leading-employment-lawyers-in-sydney/ Sat, 25 February 2017 00:00:00 For the sixth year running, Hall Payne has been recognised as one of   Queensland’s leading employment law firm s, and make up the majority of the best employment lawyers working for employees and trade unions. Doyles Guide is the definitive listing and commentary on Australia’s leading law firms and lawyers. Each year they release results on the top lawyers and firms in each practice area, as voted by peers across the profession. Following a   strong showing in 2016   Hall Payne has again been recognised, this time as Queensland’s preeminent employment law firm working for employees, only one of two firms to receive the accolade. This recognition comes after a year of high achievements across Hall Payne’s employment law and industrial relations team, which has seen   big wins for workers   in the past 12 months. It is recognition you might expect, given the same survey of practitioners nominated Hall Payne partners   John Payne   and   Luke Tiley   as   preeminent lawyers , two of the State’s three best lawyers working with a focus on employees and trade unions. Having spent more than 30 years helping organisations across Queensland, John Payne’s expertise is unrivalled. This continued recognition from peers is the result of the depth of that expert knowledge, and John’s commitment to trade unionism. That same commitment to workers’ rights similarly drives Luke Tiley, who heads up Hall Payne’s industrial relations team. An Accredited Workplace Relations Law Specialist, Luke has been responsible for some big wins across the union movement over the past year – achievements that are clearly recognised by his peers with this nomination. These results firm up Hall Payne’s reputation for providing the best advice and legal representation to employees and unions across Queensland. With offices now open in   Sydney, Hobart and Darwin   that quality is quickly becoming available to clients across Australia. If you have an employment law or industrial relations matter, Hall Payne’s expert and award winning advice can help. Contact us via our   contact page , or on   1800 659 114  for a consultation today. https://www.hallpayne.com.au/blog/rss/blog/2017/february/hall-payne-recognised-among-queensland-s-best-employment-lawyers-for-6th-year-in-a-row/ Wed, 08 February 2017 00:00:00 After more than two years of proceedings, the Full Bench of the Fair Work Commission has held that undertakings will not resolve deficiencies where an Agreement fails the Better Off Overall Test. Last year a Full Court of the Federal Court found that the Full Bench of the Fair Work Commission had fallen into error by failing to adequately consider whether an Agreement passed the better off overall test. The decision concerned the approval of the   MSS Security Qld Enterprise Agreement 2014 – 2018 , with United Voice opposing the application on the basis that it failed to meet the Better Off Overall Test. This test – commonly known as the ‘BOOT’ –requires the Commission to be satisfied that the relevant agreement puts employees in a position which is better off overall than the relevant modern award which otherwise applies to those employees. United Voice argued that the Agreement regulated the allocation of overtime to the extent that some employees would receive below award entitlements, and would therefore be worse off under the Agreement. At first instance, the Commissioner attempted to address this by approving the Agreement with undertakings from the employer. The union appealed this approval on the basis that the Agreement failed the BOOT, even with the undertaking. United Voice identified several grounds in relation to the payment of overtime, arguing that the undertaking did not adequately address these deficiencies. The appeal was allowed, with the Agreement again being approved – this time by the Full Bench of the Fair Work Commission – subject to revised undertakings. Still not satisfied that employees would be better off overall, the union again appealed, this time to the Full Court of the Federal Court. The Federal Court agreed, quashing the approval on the basis that the Full Bench hadn’t considered questions it was required to consider. The matter was remitted to the Fair Work Commission, with the Full Court directing the Commission to consider whether the Agreement passed the BOOT. Upon rehearing the matter, the Full Bench granted permission for the appeal. They did so on the basis it raised important questions about the correct application of the BOOT ‘in circumstances where the Commissioner’s discretion to determine whether employees were better off under the Agreement is an issue in the dispute’. United Voice made submissions that the application of the BOOT required the Commissioner to assess the Agreement, including an assessment of specific clauses that provided entitlements which were both more and less beneficial than the Award. The union argued that any assessment of this kind would necessarily identify that the number of overtime hours payable for some employees was reduced by the operation of the Agreement, submitting that the Commissioner at first instance erred in failing to appreciate the effect of the relevant clause. Secondly, United Voice contended that the Commissioner erred in approving the Agreement subject to the undertakings of MSS on the basis that requiring the undertaking accepted that the Agreement on its own did not pass the BOOT, and that the undertaking then failed to adequately address the deficiencies of the Agreement. The Full Bench agreed. The Commission identified that the effect of the undertaking amounted to a financial detriment to some employees covered by the Agreement, with the effect being that the Commission had erred when accepting the Agreement subject to the undertaking. The Full Bench went on to reconsider the revised undertaking. With the benefit of guidance from the Full Court, the Full Bench determined that the revised undertaking did not appropriately address MSS’ obligations under the Act. The Full Bench were not satisfied that the undertaking made employees better off under the Agreement, even where the Respondent argued that any detriment caused to employees was off-set by other more beneficial provisions under the Agreement. The Full Bench upheld the appeal, quashing the original decision more than two years after approval for the Agreement was originally sought. This decision highlights that the circumstances where undertakings may be made to address deficiencies in Agreements are restricted, and a failure to meet the BOOT will not easily be resolved by an employer making undertakings. Hall Payne have represented United Voice throughout these proceedings, asserting from the beginning that the Agreement failed to meet the better off overall test. This decision is a vindication of that commitment, and the importance of the role unions take in negotiating strong outcomes for their members via industrial litigation. Get help from an employment lawyer As home to some of Australia’s leading industrial relations lawyers Hall Payne can provide assistance with all employment and industrial relations issues, helping you to achieve the best possible outcome for your members. Contact Hall Payne on  1800 659 114  or via our  contact  page to speak to one of our experts today. Case: United Voice – Queensland Branch v MSS Security Pty Limited [2017] FWCFB 651 Related Cases: United Voice v MSS Security Pty Ltd [2016] FCAFC 124 United Voice – Queensland Branch v MSS Security Pty Ltd [2015] FWCFB 6923 Application by MSS Security Pty Ltd [2015] FWC 2283 https://www.hallpayne.com.au/blog/rss/blog/2017/february/undertakings-deemed-insufficient-as-agreement-fails-better-off-overall-test/ Tue, 07 February 2017 00:00:00 The Queensland Industrial Relations Commission has held that the decisions of the Medical Assessment Tribunal are only ‘final’ if they relate to ‘medical matters’. In the recent case of   JJ Richards & Sons v Workers’ Compensation Regulator , a Queensland garbage collection truck driver injured his shoulder turning the steering wheel of his truck to avoid a parked car. He was working when the injury occurred, and applied for compensation from WorkCover. WorkCover was unable to determine whether he had an acceptable injury under the law, and eventually they referred him to the Medical Assessment Tribunal for a medical determination. The Medical Assessment Tribunal is an independent panel of medical specialists with experience and expertise in assessing particular physical or mental injuries. Their decisions play a vital role in workers’ compensation claims of injured workers. Generally, these decisions are final and binding. Under the applicable law, the Tribunal determine: Has the worker sustained an injury and, if so, what was the nature of the injury? Was there any incapacity from work resulting from the injury? The Tribunal determined the worker had sustained an injury. In arriving at this decision they relied on a finding that the truck’s steering was defective. WorkCover then relied on the Tribunal’s findings and accepted the worker’s claim for compensation. The Employer disputed these findings, appealing to the Queensland Industrial Relations Commission (QIRC). On appeal the QIRC was tasked with determining what the Tribunal could and could not decide in their assessment. This question is extremely important because the law states that the Tribunal’s decision is final and binding, with extremely limited avenues available to challenge those findings. The Employer asserted that the Tribunal had no basis to determine whether or not the steering wheel was defective at the time of the injury because they were limited to determining medical matters alone. Deputy President O’Connor agreed, stating that the legislation: “… confines the Tribunal’s power to the determination of issues of a medical nature necessary to make an assessment of the claim. The term ‘medical matter’… contemplates issues within the specialist panel’s expertise and knowledge of medical science” . Deputy President O’Connor found that the Tribunal was limited to matters of diagnosis, and that a diagnoses by the Tribunal could not be challenged. However, any decision outside of a diagnosis was not a medical matter, and could therefore not be determined by the Tribunal. Importantly, the Deputy President formed the view that the parties could contest both the factual and legal issues arising from that decision. This could include whether the injury arose out of or in the course of the worker’s employment, whether the claimant’s employment was a significant contributing factor to the injury, and whether the injury was compensable under the applicable law. The Deputy President allowed the application, with the claim likely to be subject to further appeal in coming months. It is possible the Employer will be able to overturn the worker’s accepted claim on this basis. As it stands, this case represents a significant departure from the longstanding view that the decisions of the Medical Assessment Tribunal cannot be challenged. If the current decision stands, it will affect the way workers’ compensation claims are handled in the future. Get help from a worker's compensation lawyer Hall Payne Lawyers have regular success in challenging the decisions of insurers such as WorkCover Queensland. Strict time limits apply in appealing these decisions, so contact us through our   enquiry form , or on   1800 659 114 , to book a   FREE   initial consultation today. JJ Richards & Sons Pty Ltd v Workers’ Compensation Regulator   [2016] QIRC 147 DID YOU KNOW:   If you want a law firm to review your workers’ compensation file that your insurer has up to 20 business days to provide them with your file? Short time limits apply in workers’ compensation matters so you must act quickly. https://www.hallpayne.com.au/blog/rss/blog/2017/february/the-medical-assessment-tribunal-s-role-in-the-workcover-process-is-their-decision-always-final/ Fri, 03 February 2017 00:00:00 Our client admitted allegations of professional misconduct brought by the Nurisng and Midwifery Board of Australia (NMBA) and sought to settle the matter. The NMBA refused, with the matter going to hearing 6 months later. In a rare decision from QCAT costs have been awarded against the NMBA, in a jurisdiction where parties will only be awarded costs if “the interests of justice require it.” Our client had been working as a registered nurse for 20 years, mostly in mental health. Against a backdrop of tragic circumstances, he began an inappropriate relationship with a patient. This relationship continued for some time, and resulted in AHPRA investigating the matter. During this investigation our client made false statements, later volunteering corrections. He apologised for misleading investigators, cooperating fully with the investigation from this point. He went on to agree with all the allegations presented by NMBA, yet sought to position them in the context of mitigating circumstances – including chronic mental health disorders, which had influenced his actions and impacted his decision making abilities. We sought to resolve the matter but the NMBA continued to press for significant sanctions, including a 2 year suspension. The NMBA’s approach disregarded the unique circumstances of our client’s case. In   deciding the matter,   Deputy President Judge Suzanne Sheridan agreed that our client had been severely impacted by his personal circumstances. She ordered that our client continue to see his psychologist and rejected the NMBA’s request for a suspension. While our client did the wrong thing, his unique circumstances and this range of mitigating factors should have been considered – factors that we presented to the NMBA in trying to settle the matter. By proceeding without giving proper consideration to these issues the NMBA acted in a way that was found to be against the interests of justice. QCAT held that the matter reached the high threshold required to award costs, with our client receiving a reduction in his misconduct penalty as well as what is an extremely rare costs order from the Tribunal. While our client did the wrong thing, his unique circumstances and this range of mitigating factors had not been considered by the NMBA. By challenging their proposed penalty, with the support of the Queensland Nurses’ Union, we were able to fight for an appropriate result that considered our client’s circumstances and the context in which his misconduct had occurred. This award of costs is a vindication of the union’s commitment to challenging the decision, and speaks to the immense value in being a member of a union committed to protecting your rights at work. Seek advice from a health lawyer If you’re a health professional caught up in an AHPRA disciplinary proceeding and need representation or support through your matter, Hall Payne are experts in professional conduct and discipline law who can help you reach the best outcome possible. Hall Payne represents hundreds of health professional in AHPRA processes each year. Get in touch to find out how we can help on   1800 659 114   or via our  contact form . https://www.hallpayne.com.au/blog/rss/blog/2017/january/rare-qcat-costs-order-awarded-against-nmba-after-refusal-to-settle/ Wed, 04 January 2017 00:00:00 The Supreme Court of Queensland has held that workers who sustain multiple injuries cannot claim common law damages for injuries rejected by Insurer. In the case of   Connor v Queensland Rail Ltd   a Queensland Rail worker was injured when a train took off suddenly, pushing her off the train and dragged her along the platform. Queensland Rail, a self-insurer under the   Workers’ Compensation and Rehabilitation Act 2003 , accepted her application for statutory compensation for injuries to the cheek, buttock and leg, but rejected her claim relating to spinal, psychological and knee injuries. The worker was assessed as having no permanent impairment for the accepted injuries. The worker lodged a claim for common law damages for all the injuries she sustained in the accident, including those rejected by the self-insurer. In Court, she relied on section 237 of the Act which, she contended, allowed her to claim for any injury sustained in a workplace event, so long as one of the accepted injuries was assessed for permanent impairment and there had been an election to pursue common law damages for that accepted, assessed injury. Given the worker was attempting to claim damages for unassessed injuries, this invoked section 245(3) of the Act, which provides that a claimant could only access common law damages for such an injury if the Insurer determines that the claimant was a worker when the injury was sustained, and that they had sustained an injury. The Court found that the practical consequence of this section as drafted was that the Insurer would be required to make a new decision about the worker’s injury, when they had already made the decision to reject the injury during the compensation claims process. The Court held that this approach made no sense, and that it was inconsistent with the objects of the legislation. In making this determination, Justice Martin held that section 245(3) contained a drafting error, and that an injured worker could not claim common law damages in relation to injuries that had otherwise been rejected by the insurer. Insurers’ decisions to reject workers’ injuries are subject to appeal. What this decision confirms is how important it is to work to have all injuries accepted by an Insurer during that initial compensation process. It is clear that if an injury is rejected by the Insurer, there will be no opportunity for an injured worker to pursue common law damages for it, and a failure to appeal an Insurer’s decision will limit the injuries for which a worker is able to pursue damages. In short, If you do not appeal, you cannot claim. Get help from a worker's compensation lawyer Hall Payne have regular success in appealing decisions of Insurers rejecting workers’ injuries. Strict time limits apply in appealing these decisions, so contact us through   our inquiry form , or on   1800 659 114 , to book a free initial consultation today. Case:   Connor v Queensland Rail Ltd   [2016] QSC 270 https://www.hallpayne.com.au/blog/rss/blog/2017/january/no-second-bite-of-the-cherry-for-workers-comp-injuries-rejected-by-insurer/ Wed, 04 January 2017 00:00:00 As the year comes to an end we review the big wins from Hall Payne Lawyers, as well as key legal developments in Industrial Relations in 2015. Trade unions from across the industrial landscape remained under attack politically in 2015, yet the actions of employers have shown that they’ve never been more essential. This year saw some landmark judicial decisions, with HPL consolidating our reputation in running, and winning, substantial and strategic litigation for unions and their members. In April, the case of   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail   [2015] HCA 11 was heard in the original jurisdiction of the High Court,   who handed down a decision in favour of our clients. Acting for five rail unions – the ETU, ASU, AMWU, AFULE and RTBU – the decision was made against the Newman Government’s attempt to exempt Queensland Rail from the federal Fair Work Act 2009. Examining the meaning of corporation in the context of a “trading and financial corporation”, the court unanimously found that the Newman Government’s attack on workers’ rights, conditions and bargaining power was unconstitutional, ruling that the newly created Queensland Rail Transit Authority was a corporation formed within the limits of the Commonwealth, such that the   Fair Work Act   applied. This decision was backed up by   another big win in the High Court   in the case of   CFMEU v Director, Fair Work Building Industry Inspectorate   [2015] HCA 46. Here the High Court unanimously set aside a Federal Court decision which incorrectly applied criminal precedent to the determination of civil penalties. As a result of this decision, parties in civil proceedings are now able to make joint submissions to the court about the penalties to be imposed. Throughout the year we repeatedly saw employers trying to limit the role unions play in the workplace, and were proud to work with them to ensure the rights of workers were protected. A series of Right of Entry decisions this year demonstrated the importance in exercising these rights, whether it be   under the   Fair Work Act   or   the Work Health and Safety Act , or   defending unsubstantiated allegations of trespass . When it came to Right of Entry, decisions handed down consistently confirmed the value in challenging overreach by the Director of the Fair Work Building Industry Inspectorate, with a series of wins asserting the rights of officials to exercise their duties, see: • CFMEU retain Right of Entry Permit ; • Hall Payne and the Electrical Division of the CEPU win on Entry Permits ; • Right of Entry Granted despite opposition In discussing right of entry, the decisions of   Director of the Fair Work Building Industry Inspectorate v CFMEU   [2015] FWC 2158   and, on appeal to the full bench,   Director of the Fair Work Building Industry Inspectorate v CFMEU   [2015] FWCFB 6035, confirmed that the statutory test for holding a right of entry permit was about personal fitness and as such the record of the Union was not relevant to the Secretary’s permit. In a situation where there is no question on personal fitness, imposing conditions on a permit was found to not be appropriate or useful. Further successes included   ensuring employers adhered to their Enterprise Agreements in the face of an organisational restructure , and that   members were reinstated to their positions following unfair dismissal   ( also, here ). When it came to health at work, we got confirmation on the way that health assessments are to be conducted under the   Coal Mining Safety and Health Regulation 2001   (Qld) and with it,   a better deal for coal mine workers . HPL also secured countless lucrative settlements compensating our clients for the loss of income, pain and suffering, superannuation losses and medical expenses that resulted from injury at work. In many of these cases, compensation settlements also saw the integration of   policies with the intention of reducing injury risk for workers . These successes put the rights of workers – both currently and into the future – at the core of our work supporting unions. This extended to ensuring enterprise agreements were made and followed in the best interests of union members. Decisions   ensuring agreements can be assessed to determine whether they pass the Better Off Over All Test   (BOOT), that   United Voice members got the back pay they were entitled to , and that a ctual entitlements matched those provided for in the agreement   all demonstrated the role that a well constructed and enforced enterprise agreement can play in improving the day to day lives of individual workers. When it came to making agreements we fought for the   rights of workers to do so without employers seeking to influence the vote , and were successful in   obtaining a scope order preventing three enterprise agreements being merged into a single state-wide enterprise agreement , which would have ignored the regional relevance of the separate agreements. In seeking protected action ballots, we had success in obtaining orders despite opposition, receiving an incredibly   rare decision ordering costs against the employer   from the Commission. We also worked with unions to empower workers through their involvement in industrial activity. This included seeing   an order to stop industrial action quashed , and our IR team working to   ensure rights to freedom of association are upheld . While pursuing permanent reinstatement for a union member and Lodge President of the CFMEU at the Dawson Mine, we supported the Union in an application for an   interlocutory order reinstating the member,   pending the trial of his case. The court reinstated the member for a range of reasons, citing the social and psychological benefits associated with returning to employment, importantly rejecting an offer by the employer to pay wages as it lacked these benefits. The above decisions highlight a small range of the protections unions provide to their members, and the work we do to assist them in ensuring better pay and conditions, support and that their rights are enforced. This was all in a year where some very conservative decisions were made by the Commission, emphasising the importance of asserting the rights of unions and their members. One such decision shifted how we perceive industrial relations operating in this country – an application by Aurizon ([2015] FWCFB 540), where we represented the CEPU, the Queensland Services Union, AFULE and the AMWU. While bargaining for a new agreement the recently privatised Aurizon (formerly Queensland Rail National) sought to terminate the enterprise bargaining agreements that, while having reached their nominal expiration date, continued to apply. The court permitted the termination, departing from earlier interpretations of the Fair Work Act’s objectives. This decision had the effect of ruling that terms and conditions of an agreement do not continue unaltered, in perpetuity. The Aurizon decision departs with the way collective bargaining has been understood for the last 15 years. Across that time there has generally been the understanding that enterprise bargaining agreements exist in a context where they advance conditions and productivity progressively. The Full Bench held that those gains aren’t guaranteed, and that parties are entitled to go back to scratch and begin again with the modern award as starting point. The result of an incredibly conservative approach, these two decisions demonstrate the constantly changing dynamic of industrial relations in Australia. It is the sorts of challenges listed above that provide all the more reason to engage with us. 2015 saw some changes from the legislature, too. The   Fair Work Amendment Bill 2014   (Cth) came into force late this year, making significant changes to the   Fair Work Act 2009   (Cth) in the area of greenfields agreements and protected action ballot orders. These changes give employers the ability to apply to the Fair Work Commission to have their greenfields agreements approved if negotiations remain unsuccessful after a set negotiation period of six months. Amendments to protected action ballot orders mean that unions may be required to demonstrate majority support for bargaining before they will be able to take protected action. As industrial relations remains subject to changes from both the Courts and Parliament, we are committed to working with unions to achieve the very best results for the union and their members, whatever the situation. Hall Payne Lawyers are experts in the area of Industrial Relations. If you require assistance with any associated IR issue and want to achieve the best possible outcome, we can help. Please contact HPL Principal   Luke Tiley  (Brisbane), HPL Associate  Joseph Kennedy  (Sydney) or HPL Associate  William Ash  (Hobart), all available on 1800 659 114 . https://www.hallpayne.com.au/blog/rss/blog/2016/december/the-year-in-review-industrial-relations-in-2015/ Wed, 28 December 2016 00:00:00 Less than two weeks after gaining enhanced powers, ABCC submissions have been dismissed for the third time, this time by the Full Court of the Federal Court. This decision follows two other decisions concerning this matter, both of which also dismissed the ABCC’s arguments. In June 2014 the CFMEU applied to the Fair Work Commission for right of entry permits for some of its officials, including Michael Ravbar, the Divisional Branch Secretary of the Construction and General Division of the Queensland/ Northern Territory branch of the Union. Using their power under the   Fair Work   (Building Industry) Act 2012,   the Director of the Fair Work Building Industry Inspectorate has made two submissions to the Fair Work Commission in relation to Mr Ravbar’s application, arguing that it should not be granted. Firstly, the Director argued that Mr Ravbar was not a fit and proper person to hold an entry permit, on the basis that back in 2002 he had contravened the   Workplace Relations Act , that at the time of application he was the respondent in proceedings before both the Commission and the Federal Circuit Court, and that he held senior office in an organisation that appeared to have manifested a ‘continuing attitude of wilful disobedience to the law.’ The Director made further submissions that the CFMEU and Mr Ravbar had failed to provide ‘full and frank disclosure’ in relation to a number of these matters which would have been relevant to determine whether Mr Ravbar was a fit and proper person. Despite this opposition, the Commission granted Mr Ravbar an entry permit. The Director sought permission to appeal that decision, on the basis that the Commission, at first instance, had failed to take into account matters that would have been relevant under s 513(g) of the   Fair Work Act,   where the Commission was required to consider ‘any other matters that the FWC considers relevant.’ A Full Bench of the Commission refused permission to appeal on the basis that an arguable case of appealable error had not been demonstrated, and that it had not been established that an appeal was in the public interest. In the most recent stage of this matter, heard by a Full Court of the Federal Court, the Director sought to have either decision quashed and reheard in an application under the   Judiciary Act 1903 , alleging that both decisions had been affected by jurisdictional error. In relation to the decision to refuse permission for the appeal, the Director argued that the Full Bench had applied the wrong legislative provision and had therefore based their decision on a jurisdictional error. This argument was rejected by the Full Court, who found that the provision concerned was, in substance, applied correctly although a typographical error had been made by the Full Bench. The Director further claimed that at first instance the Commission had misunderstood the nature of the opinion it was required to form and the questions it asked itself when considering whether Mr Ravbar was a fit and proper person. The Director argued that the Commission had failed to have regard to relevant considerations which it was bound to take into account, and this had affected the exercise of its power. The Full Court found this was not the case. They agreed with our submissions that the Commission had considered each of the matters it was required to take into account, and that this had involved an ‘unremarkable’ exercise of discretion. On this key point the Full Court summarised their position by saying: ‘The real complaint of the applicant is that the Commission did not attach the same weight to that conduct that the applicant attached to it. That, however, does not reveal any jurisdictional error on the part of the Commission…‘ As the Director, now the Australian Building and Construction Commissioner, assumes greater power under the recently passed ABCC legislation it is worth reflecting on this decision which has found, on three occasions, that there was no basis for the Director’s intervention. How the Commissioner’s power will be exercised under this new legislation remains to be seen, but protecting the rights of unions to lawfully conduct their business remains as important as ever. Hall Payne are experts in the area of Industrial Relations and associated litigation. If you require assistance with any associated IR issue and want to achieve the best possible outcome, we can help. Contact Hall Payne on   1800 659 114   or via our   contact   page today to speak to one of our experts in employment and industrial relations. https://www.hallpayne.com.au/blog/rss/blog/2016/december/abcc-submissions-dismissed-for-third-time-this-time-by-federal-court/ Mon, 12 December 2016 00:00:00 A rejected tourist visa application meant our client’s parents couldn’t come and meet their grandson. A difficult situation for all, we worked with the applicants to demonstrate that they were genuine tourists. The second time around, the Department agreed. It started with a client’s desire to have his parents visit him in Australia and meet their daughter-in-law and two year old grandson for the first time. Sounds reasonable right? Not when you are a Somali born UK citizen with Australian Permanent Resident status, your parents still live in Somaliland (a self declared state which is internationally recognised as an autonomous region within Somalia) and are both over 70 years of age. Our client – we’ll call him Ibda (not his real name) – approached Hall Payne for assistance after the initial tourist visa applications for his parents were refused, with the Department of Immigration and Border Protection assessing them as “non-genuine” visitors. The decision maker took the view that these elderly parents, once here in Australia, would do anything they could to stay. This was simply not the case. In fact, Ibda’s parents were reluctant visitors. So much so that Ibda had to “do a deal” with his father to even get him to come and visit. To get his parents here, Ibda promised his father that he would travel the Hajj with him to Mecca – meaning time off work and away from his family. Ibda agreed, willing to do whatever he needed to so he could give his son the opportunity to get to know his grandparents. We assisted Ibda and his parents in preparing a second set of applications. These applications directed the Department to a number of factors that had been overlooked in the first decision. Ibda’s parents owned a large herd of livestock, including camels, sheep and goats, with Ibda’s father earning his livelihood breeding and selling that livestock – not something that he would ever walk away from. Ibda’s father also had extended family in Somaliland, with significant responsibilities to his clan, and he had no desire to live out the rest of his life in a country he knows nothing about, with a language he does not speak. To complicate the application process more, the Department did not accept Ibda’s parents’ passports as legitimate travel documents, and there were no formal birth or marriage records to support the application. Throughout this process we worked with Ibda and his parents to overcome these hurdles – and the perseverance has paid off. Ibda’s parents each have a three month entry visa, with no need to pay a security bond. Who wouldn’t want to show off this cute little fella to their parents? Refusing to accept the Department’s original decision was clearly worth it. Many people from various countries and age groups are classified as being “high risk”. This may well result in a refusal decision if strong supporting evidence of their incentive to depart as required is not provided. If you or anyone you know is thinking of applying for tourist visas for family or friends to come to Australia to visit, it is well worth speaking to a Registered Migration Agent about the specific criteria which will apply. Hall Payne can help. Visit our   contact page   or   call   to speak to a Registered Migration Agent today. https://www.hallpayne.com.au/blog/rss/blog/2016/november/success-after-a-rejected-tourist-visa-allows-grandparents-to-meet-their-grandson/ Sun, 13 November 2016 00:00:00 After our client was injured during an electric arc flash, his employer refused to accept any responsibility. We commenced a claim for damages, and ended up settling the matter out of court. The settlement meant our client was able to support his family and move on from the injury, all without stepping inside a courtroom. Shaun worked for a labour hire company, working as an experienced electrician in regional Queensland. As part of this work, Shaun was sent to work on a sugar mill as a maintenance electrician providing electrical maintenance at the mill. When he started work at the mill, Shaun didn’t receive a formal induction and wasn’t told about the existence of multiple live feeds into the existing switchboard unit. While Shaun was performing switchboard maintenance, an electrical arc flash occurred. Shaun sustained serious burns to his face and hands, and developed Post Traumatic Stress Disorder as a consequence of the incident. Unable to return to work as an electrician, his family experienced significant financial hardship. On behalf of Shaun, Hall Payne commenced a claim for damages against both the owner of the mill and the labour hire company. We alleged both parties had been negligent by not ensuring Shaun’s safety in the workplace. Specifically, we noted the absence of warning markings showing the existence of the second live feed, inadequate schematic diagrams, and a lack of proper procedures and training for the work Shaun was performing. Both parties strongly denied liability. After persistence from Hall Payne, both defendants finally acknowledged responsibility and made offers compensating Shaun for his past and future losses of income, pain and suffering, superannuation and medical expenses. Shaun accepted the offers, overjoyed with the outcome and relieved at achieving such a good result without having to proceed to Court. He was most happy to put the whole episode in the past and use the compensation to continue to provide for himself and his family. Shaun’s case highlights the danger facing even experienced electrical workers when proper workplace procedures, hazard markings and safety and training are absent. It also signifies the importance of ensuring access to fair compensation for workers’ injured as a result of negligence. If your ability to work has been impacted by injury or illness, we can help. Contact us through our   inquiry form , or on   1800 659 114   to book a free initial consultation today Image credit:  Garry Knight https://www.hallpayne.com.au/blog/rss/blog/2016/november/hall-payne-secures-work-injury-compensation-settlement-for-injured-rural-electrician/ Tue, 08 November 2016 00:00:00 Hall Payne is thrilled to appoint Cale Fryer Principal of the firm. Cale started with the firm as a law clerk in 2009, and has continued at Hall Payne since being admitted to practice in early 2010. During this time he has been an essential member of our personal injury and disability and superannuation teams, quickly working his way up to Senior Associate, and now Principal, through a driving passion to achieve strong outcomes for his clients. With expertise in serious workplace, public liability, motor vehicle, disability insurance and superannuation injury claims, Cale’s commitment to his clients, and finding solutions to complex legal problems, has seen him make a real difference to people’s lives. An exceptional lawyer and a strong role model for others in the firm, as a Principal Cale hopes to continue to work with  his colleagues to develop and implement effective legal strategies, ensuring the best possible outcomes for clients. HPL is delighted to welcome Cale to this leadership position within the firm, joining current Principals Cameron Hall and Linda Brangan, also in the areas of personal injury and disability and superannuation, and Principals in our industrial relations and employment area, John Payne, Luke Forsyth and Luke Tiley. If you have a personal injury or disability and superannuation matter and need assistance, our lawyers can help. Contact us on   1800 659 114 , or via our   contact form today . https://www.hallpayne.com.au/blog/rss/blog/2016/october/hall-payne-appoints-cale-fryer-principal/ Tue, 25 October 2016 00:00:00 After being awarded $630k for injuries sustained at work, our client was stood down by Rio Tinto. Along with the CFMEU, we alleged they took adverse action because our client had sought out compensation for his injuries. The Court agreed, awarding a record $1.27 million. It’s been a long couple of years for CFMEU member Michael Haylett. In 2010 Mr Haylett injured his neck driving a bulldozer at the Hail Creek Mine. Rio Tinto, operators of the mine, admitted that it was their negligence that had caused the injury. Mr Haylett returned to an altered position, working as a drill rig operator for three years following the injury. At the same time, he sought compensation for his injury and the ongoing impact it would have on him. In late 2013 he was awarded $630,000 compensation by the Queensland District Court. Less than a week after that decision was handed down Mr Haylett was stood down. Rio Tinto asserted this was because he didn’t have a valid health assessment, with the mining giant attempting to justify these actions as necessary for compliance with the   Coal Mining Safety and Health Act 1999  (Qld). The Court has repeatedly found these reasons to be hollow. Across two Supreme Court cases, a Court of Appeal decision, and the most recent decision of the Federal Court, the stand down has been found to be contrived. Across these decisions different Courts have labelled Rio Tinto’s conduct as disgraceful and recalcitrant, while commenting on the resilience of Mr Haylett. That resilience and commitment to asserting his rights has paid off. In what is a record amount of compensation in the Employment area, Mr Haylett has been awarded $1.272 million, plus interest, for the adverse action taken by Rio Tinto. Along with the fine imposed on Rio Tinto earlier this week, their decision to ignore the rights of this worker has been a costly one. Hall Payne Lawyers are committed to protecting the rights of workers. While the best situation would be for Mr Haylett not to be in this situation at all, this award of compensation means he has the financial support to sustain him in whatever comes next. If you believe your employer has treated you unfairly or prevented you from exercising your workplace right, we can help. Contact HPL Principal   Luke Tiley   and HPL Associate   Will Ash   on   1800 659 114   or via our   online inquiry form . https://www.hallpayne.com.au/blog/rss/blog/2016/october/hall-payne-lawyers-scores-record-127m-compensation-for-adverse-action-claim/ Sat, 01 October 2016 00:00:00 After almost three years of litigation, the Federal Court has identified Rio Tinto’s “disturbing level of recalcitrance” and “hollow” claims as CFMEU member wins compensation and a penalty of a further $50,000 is awarded to the Union. In February 2016 Justice Reeves of the Federal Court found in favour of the CFMEU after the Hail Creek mine, a subsidiary of Rio Tinto, were found to have taken adverse action against Michael Haylett. The adverse action occurred after Mr Haylett was awarded $630,000 in compensation for an injury sustained while driving a bulldozer at the Mine, with Rio Tinto standing him down from his ongoing position following this decision in the Queensland District Court. A summary of this adverse action finding is   available here . In August 2016 Reeves J handed down a further decision concerning the remaining issues of compensation and penalty, the latest in a series of CFMEU member wins. In his reasons, Reeves J continued his criticism of Rio Tinto, whose behaviour he labelled “disgraceful” in the earlier 2016 decision. While the Court required further calculations to make an order on compensation, Reeves J rejected Rio Tinto’s argument that there was no entitlement to compensation because of the award in the District Court. The Federal Court found that the two awards were directed to different purposes, with the current matter being to compensate Mr Haylett for past and future loss of wages resulting from the contraventions of the Fair Work Act. The judgment provided for an award of compensation, along with back pay, to be made to Mr Haylett. The Court did, however, determine the penalty to be paid – and in doing so made a strong statement on what consequences may flow from the kind of behaviour displayed by Rio Tinto. Reeves J found that there had been no satisfactory explanation for their conduct, and that they had demonstrated “a disturbing level of recalcitrance”. Reeves J made specific reference to Hall Payne Lawyers’ attempts to find a quick resolution to the issue when, in early 2014, we approached Rio Tinto. They refused to reconsider their approach. Later in 2014 and again in 2015, after successes in the Supreme Court and then in the Court of Appeal, we again requested that Rio Tinto reconsider their position. They refused. Reeves J highlighted these occasions as further compounding the seriousness of their wrongdoing. Reeves J found that Hail Creek’s submissions demonstrated they had no insight into their wrongdoing, and that they had shown no remorse for their contraventions. Further, the court labelled Rio Tinto’s submission that they had been acting out of concern to comply with the Coal Mining Safety and Health Regulations and Act “particularly hollow”, given the complete lack of regard they had for the effects of their actions on Mr Haylett. The Court awarded the significant penalty of $50,000, to be paid to the CFMEU, for the “serious and persistent wrongdoing” of Rio Tinto. Subject to the provision of calculations for the award of compensation, this decision is the latest in a suite of decisions condemning the behaviour of Rio Tinto and CFMEU member wins. This case has been running for almost three years, with challenges at every turn. It is the case of a coal miner who dared to take on a multi-national, with Rio Tinto determined to use him as an example to prevent other workers from making similar claims for compensation. With the ongoing support of the CFMEU and Hall Payne Lawyers, that position was turned around, with the Federal Court ultimately using compensation and the award of penalties to the CFMEU to make an example of Rio Tinto. It is further testament to the importance of resilience and Union support in ensuring and enforcing your rights at work. If you require any assistance in relation to your right to work, or the enforcement of your rights, please do not hesitate to contact HPL Principal  Luke Tiley  and HPL Associate   William Ash on  1800 659 114 View the full decision here. This decision has been part of a series of long-running litigation. You can see summaries of previous decisions here: Sick leave entitlements won for CFMEU member Win paves way for improved treatment of injured Coal Mine Workers CFMEU wins long running case against Rio Tinto CFMEU public interest role praised as Court finds against Rio Tinto https://www.hallpayne.com.au/blog/rss/blog/2016/august/court-calls-out-rio-tinto-s-recalcitrance-in-cfmeu-member-win/ Mon, 29 August 2016 00:00:00 Our client had to stop work because of Post Traumatic Stress Disorder. When he did, his super fund rejected his insurance claim, arguing he didn’t meet the “at work” definition. We fought that decision, and won. Our client suffered Post Traumatic Stress Disorder while working as a Parking Attendant for his local council, where he was subjected to a number of physical encounters with fined customers. He was not able to concentrate or do his job properly, becoming increasingly scared of dealing with people and angry at what was a terrible situation to be working in. Suffering from nightmares and flashbacks, the symptoms of his condition eventually overwhelmed him. Without being able to perform these day to day tasks, our client had no other option but to stop work. Our client made a claim for total and permanent disablement (TPD) benefits under the insurance cover he held through his superannuation policy with Sunsuper. Sunsuper argued he did not meet the “at work” definition of his policy and as a result he could only access a small amount of insurance. HPL thought that initial decision was wrong, and took on the case on a no win, no fee basis meaning that if he didn’t win, he didn’t pay. We made a complaint to the Super Fund seeking to overturn the decision. Sunsuper maintained their stance. They claimed they had evidence he had been on restricted duties and therefore did not meet the “at work” definition. We submitted a complaint to the Superannuation Complaints Tribunal. Through this process we argued, and were able to show, that our client did meet the “at work” definition. We obtained evidence from Council that he was performing the full duties of his job, and that he had given out over 20 parking fines a day – meeting his job description and working without limitation. From the evidence we provided it was very clear that our client met the “at work” definition. At conciliation Sunsuper agreed. Based on our submissions it was difficult to argue that our client hadn’t met the “at work” definition, meaning he was eligible for, and entitled to, the full benefit of his insurance. Following this our client received the extra $100,000 in TPD benefits that was rightfully his. Our client has had trouble meeting day to day bills and mortgage payments since stopping work. This win means he’s no longer in the tough financial position that being out of work suddenly left him in. If you’ve had a claim rejected and you suspect this was the wrong decision, legal assistance can help you get it overturned. For a free consultation and assessment of your prospects, our teams across Queensland, NSW, Tasmania and the Northern Territory can help. Contact us on   1800 659 114   or via our   online inquiry form   to find out how. https://www.hallpayne.com.au/blog/rss/blog/2016/august/hall-payne-appeals-to-super-fund-and-wins-over-at-work-definition/ Sun, 07 August 2016 00:00:00 Following a suite of failed allegations stemming from the Trade Union Royal Commission, two separate decisions have seen CFMEU charges dropped. The charges were laid against CFMEU Officials Chad Bragdon and Mark O’Brien, years after the alleged incidents took place. Mr Bragdon was charged by Trade Union Royal Commission Police with one count of Obstruction of a Commonwealth official. The charge was based on allegations that Mr Bragdon had intimidated an employee of the Fair Work Building Industry Inspectorate, Steven Lovewell. Mr Lovewell provided three statements and only mentioned feeling intimidated in the third statement, provided to Mr Bragdon on 11 July 2016, more than three years after the incident was said to have happened. The offence allegedly occurred on 21 November 2012, and despite the Inspectorate deciding to not take the case any further, Mr Bragdon was charged on 25 September 2015. The Court examined the event, and while Mr Bragdon had used some colourful language, the Magistrate commented that this did not amount to intimidation. The Magistrate was satisfied beyond reasonable doubt that Mr Bragdon was not guilty. Also heard this week, CFMEU Official Mr O’Brien, was charged with two counts of Obstruction of a Commonwealth Official. It was alleged that back in November 2013 Mr O’Brien had struck a car with his fists or water bottle, and that inside the car were two employees of the Fair Work Building Industry Inspectorate. Despite neither of the Industry Inspectorate employees advising that the matter be prosecuted, Mr O’Brien was arrested by the Trade Union Task Force almost two years later. As the prosecution concluded their case, the Magistrate invited each side to “discuss the matter.” Following this discussion, the prosecution returned and advised the court that they were proceeding with the prosecution. Counsel from Mr O’Brien made a no case submission. The Magistrate agreed that there was no case to answer, observing that the prosecution case was a “dog’s breakfast.” The Magistrate further awarded the maximum amount of costs in favour of Mr O’Brien These CFMEU charges dropped are the   latest in a line   of failed allegations stemming from the Trade Union Royal Commission. We’re proud to continue to support the CFMEU to challenge these charges and the unfounded grounds on which they’re being made. If you require any assistance in relation to defending charges be they criminal or as a result of involving police in an Industrial Relations matter, please contact HPL Associate   Talitha Burson , available on  1800 659 114  or via the  contact form . https://www.hallpayne.com.au/blog/rss/blog/2016/july/cfmeu-charges-dropped-as-royal-commission-case-labelled-a-dog-s-breakfast/ Thu, 21 July 2016 00:00:00 A 100% preventable disease, the resurgence of black lung is an outrage. That compensation for sufferers is being rejected should be an affront to us all. Decades after black lung was eradicated from Australian coalfields, the dreadful scourge is back, with eight cases of black lung identified in the last year. Caused by exposure to coal dust, black lung mostly affects coal miners. This isn’t news to anyone – the disease is also known as ‘coal workers’ pneumoconiosis’ and hit Australian workers hard from the 1830s, when coal mining was established in Australia, for the next 150 years. Under union pressure, Government regulation mandating screening and setting limits for coal dust levels meant the disease was eradicated in Australia in 1980s. A hard fought and important victory for the workers showing black lung isn’t a disease anyone should have to live with. If it’s totally preventable, why is it back? Industry complacency has been putting coal miners in direct danger – that’s their words, not ours, with the Queensland Resource Council chief blaming the industry’s attitude to monitoring for the re-emergence. The recent Senate Select Committee on Health went further, identifying regulatory failure, industry incompetence and inconsistent risk mitigation as key contributors to the emergence of black lung. This is affecting the lives of workers in Queensland and it’s a disgrace. The CFMEU have been taking the fight to the industry and campaigning hard to ensure that the mining companies are forced to deliver the health and safety that will avoid injury.  They are fighting hard to make sure the injury is recognised for what it is and not passed off as being a lifestyle illness of the worker. The disgrace of it all is highlighted no more than in the case of Percy Verrall who had worked as a coal miner for almost 30 years.   The picture of health across his working life, at 73 he now struggles to breathe.Percy first presented to hospital in 2003 with shortness of breath, chest pressure and a severe cough, all symptoms of black lung. Diagnosing black lung can be difficult, and Percy went undiagnosed for the next four years. Over this time his health worsened, with the full impacts of black lung creeping up on him. In January 2007 Percy finally received a definitive diagnosis, being the first Australian worker diagnosed with black lung in over 30 years. In and out of hospital, and having been out of the mines for over a decade, Percy didn’t think he had a claim for workers’ compensation. In January this year Percy applied for compensation to BHP Billiton, his former employer and a self insurer. BHP Billiton rejected the application, claiming it was out of time. With Percy and the significant support of the CFMEU, Hall Payne Lawyers fought that decision. The Regulator has come down on Percy’s side, finding that Percy’s circumstances excused the delay and the limitations for applying should be waived. While BHP Billiton may appeal that decision, the CFMEU and Hall Payne Lawyers will continue to fight with Percy to get him compensation for what he’s been through and what he must now live with. This shouldn’t be a battle.   Black lung shouldn’t be something we see at all. If it hits you, the last thing you need is a self-interested insurer rejecting your right to compensation. Just as the CFMEU and Hall Payne Lawyers fought for Percy, we will fight for you. How can you get help? Hall Payne Lawyers have worked with workers and their unions for years, getting them the compensation they deserve. We act on a no win no fee basis, and have the experience and knowledge relevant to the mining industry to expertly assist anyone affected by black lung. Black Lung: What to do if you’re showing symptoms We offer a free initial consultation, and discounted rates, to all CFMEU members. If you are diagnosed with black lung or are seeking review of a decision on compensation, contact your union for a referral to discuss your rights. If you require further information please contact us on   1800 659 114   or via our   contact page . Photo Credit:   Solidarity Center , 2014. https://www.hallpayne.com.au/blog/rss/blog/2016/july/black-lung-resurgence-seeking-compensation-and-getting-help/ Thu, 14 July 2016 00:00:00 Hall Payne Lawyers is thrilled to announce two senior appointments within the firm, as award winning Juliana Virine and specialist Joseph Kennedy get promoted to Senior Associate. Having been with Hall Payne for four years,   Juliana Virine   has been promoted to Senior Associate on the back of an exceptional start to the year. Having been named as one of the   rising stars of Employment law   in Australia by the prestigious Doyle’s guide, Juliana is a key member of our highly regarded Brisbane Employment Law and Industrial Relations team. Coming to Hall Payne Lawyers with experience working in two of Queensland’s largest unions, and having also worked as Women’s Officer and Industrial Officer for the Queensland Council of Unions, Juliana has repeatedly demonstrated why she is recognised as a rising star in Employment law. Joseph Kennedy   joins Juliana as one of the firm’s new Senior Associates. Joe has been with Hall Payne Lawyers for 18 months, and has quickly established himself as an essential member of our Industrial Relations team. As part of a growing practice in Sydney, Joe has considerable experience in advising a wide range of unions and employees in Employment and Industrial Law. Joe also holds specialist accreditation from the NSW Law Society in Employment and Industrial Law. Both Juliana and Joe combine their significant expertise in Employment Law and Industrial Relations with a passion for access to justice. Both volunteer their time at community legal centres in Brisbane and Sydney respectively, and having developed their practices with a strong commitment to social justice and workers’ rights. We’re delighted to see them assume senior positions within the firm as both role models and exceptional lawyers within our growing team. If you have an employment or industrial relations matter and need assistance, our teams across Queensland, NSW, Tasmania and the Northern Territory can help. You can contact us on   1800 659 114  or via our  online inquiry form . https://www.hallpayne.com.au/blog/rss/blog/2016/july/hall-payne-makes-two-senior-appointments-in-industrial-relations-and-employment-law/ Mon, 11 July 2016 00:00:00 A registered nurse who had started a relationship with a former patient admitted to allegations of professional misconduct brought by Nursing and Midwifery Board of Australia (NMBA). The NMBA sought to suspend him for 2 years, a penalty which would have financially and psychologically crippled our client. Against a backdrop of tragedy, we fought to see his misconduct penalty reduced to recognise his circumstances and his insight into his conduct. The Queensland Nurses Union supported their member.   Our client had been working as a registered nurse for 20 years, practicing mostly in mental health. Over this time our client met, married, and separated from his wife, who suffered from significant mental health issues. Even following their separation, our client continued to care for her. In 2008 she tragically committed suicide in 2008, leaving behind our client and their young son. The effects of this period of care and grief were significant – our client was later diagnosed with chronic adjustment disorder with mixed anxiety and depressed mood, unresolved grief and chronic post-traumatic stress disorder as a result of the anguish he suffered. It was against the backdrop of these tragic circumstances that our client was part of the mental health team providing nursing care to a patient in mid to late 2012. After periods of direct care, the patient sought out our client, commencing frequent contact between the two and the start of what our client agreed became an inappropriate personal relationship. Around this time the patient was thrown out of home, becoming homeless. Suffering from depression and alcohol dependence, and with nowhere to go, the patient sought out our client’s home, broke in, and was found unconscious with a bottle of pills next to her. The patient was hospitalised for a week, with our client ensuring that he was not rostered on during this admission. Despite feeling uncomfortable about their out-of-hospital contact, our client did not notify his employer the patient had been in touch. Following discharge from hospital, the patient stayed with our client – on the couch – after telling him she had nowhere else to stay. Some months later, the patient and our client started a sexual relationship, and they eventually lived together. Their relationship continued until mid-September 2014. While AHPRA were investigating the matter, our client made false statements to the investigation. He later volunteered corrections, apologising for having misled investigating officers. AHPRA focused on this dishonesty in arguing for firm sanctions and the application of conditions on our client’s ability to practice. While we agreed to all of the allegations, we argued that there were mitigating circumstances that should be taken into account by the NMBA when considering the sanction it was seeking from the Tribunal. Our client’s wife had suffered with alcohol and substance abuse, as had the patient. When considering the offending conduct, our client’s Psychologist and Psychiatrist found that our client had considered a significant degree of countertransference, where the patient had “evoked a sense of his now deceased wife.” The Psychologist and Psychiatrist went on to say that our client had “unknowingly and subconsciously thought that by rescuing the patient and keeping her safe he was somehow preventing the death of his wife.” We submitted that these were exceptional factors. Our client had suffered from chronic mental health disorders in the years leading up to his wife’s death for over a decade, including the time period in question, and this had affected his judgment. The NMBA relied on the case of   Psychology Board of Australia v Wakelin   [2014] QCAT 516   to argue for a 2 year suspension, as well as the imposition of conditions, sanctions and a formal reprimand. We argued that our client’s circumstances were distinguishable from   Wakelin.   In that case there had been a high degree of deception with the Board, with a sexual relationship commencing as soon as the treating relationship had ended. Deputy President Judge Suzanne Sheridan agreed that   Wakelin , and other similar cases, should be distinguished from the facts in this matter. Her Honour found that while grounds existed for taking disciplinary action, our client’s insight and judgment was severely impaired following the tragic death of his wife. Her Honour held that our client’s conduct had not been knowingly exploitative, and that the relationship had not caused any harm to the patient – in fact, the relationship had been loving and supportive. That our client had, at his own initiative, taken part in an educational program on maintaining professional boundaries, and continued psychological counselling, was also significant.  Our client’s admissions, cooperation, and remorse all displayed a developed awareness and insight into his conduct. Her Honour commented on the protective nature of disciplinary penalties, and the role that personal deterrence will play. Judge Sheridan held that there was no justification for suspension, agreeing with our client that he should continue psychological treatment for the next 12 months, and that a reprimand for that same length of time was an appropriate disciplining. While our client did the wrong thing, his unique circumstances and this range of mitigating factors had not been considered by the NMBA. By challenging their proposed penalty, with the support of the QNU, we were able to fight for an appropriate result that considered our client’s circumstances and the context in which his misconduct had occurred. If you’re part of disciplinary proceedings and need representation or support through your matter, Hall Payne Lawyers are experts in employment law with over 25 years of experience in arguing against harsh penalties and regulatory overreach. For assistance, contact HPL Principal   Luke Forsyth   (Sydney) or   Talitha Burson , (Brisbane) available on   1800 659 114   or via the   contact form . https://www.hallpayne.com.au/blog/rss/blog/2016/june/nursing-misconduct-penalty-reduced-amidst-exceptional-mitigating-circumstances/ Tue, 28 June 2016 00:00:00 The Federal Court has found in favour of six workers who were denied access to their personal leave entitlements while working at the Hail Creek Mine, run by Rio Tinto. Supported by their Union, the Court has found in their favour, highlighting the importance of workers’ rights and the CFMEU’s public interest role. The CFMEU alleged that, across a period of over two years, Rio Tinto had incorrectly appropriated annual leave, or failed to pay any leave at all, despite being required to pay personal leave under the Enterprise Agreement signed with workers and the Union. Justice Logan agreed with the argument advanced by Hall Payne Lawyers on behalf of the CFMEU, finding that Hail Creek had contravened the Agreement. In considering whether a civil penalty would apply, his Honour reflected on the purpose of these penalties, and where and when they should be paid. This case was associated to the earlier decision of the full court in   Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd   [2015] FCAFC 149 . Even after having the benefit of the Full Court’s construction of the relevant clause in the Enterprise Agreement in this earlier decision, Hail Creek continued to assert there had not been a contravention. Despite the fact that Hail Creek belatedly re-credited annual leave or paid out previously denied sick leave in the wake of that decision, Justice Logan found that these actions were not “truly indicative either of insight or remorse,” and that they instead laid the foundation for an unmeritorious defence. In considering the misappropriation of annual leave that characterised the majority of the contravention, Justice Logan spoke of the importance of the entitlement to annual leave: “… annual leave entitlement forms part of the balance between recreation and labour for which provision is made in the Enterprise Agreement. As to that balance, it is now almost two centuries since the English socialist, Robert Owen, promoted, in 1817, the ideal that workers should enjoy,   “8 Hours Work, 8 Hours Recreation, 8 Hours Rest ” ( “888 ”), an ideal taken up in Australia in 1856   … To recall this history is to highlight that conduct by an employer which diminishes the provision for a worker’s recreation struck in an industrial bargain is not to be trivialised. ” His Honour went on to agree with the parties that where a penalty was to be paid, it should be paid to the Union. In making this decision Justice Logan reflected on the importance of the Union in securing compliance with the obligations placed on employers. His Honour commented that this case was “an example of how in modern times a trade union may continue to serve both the public interest and the interests of its members.” Accordingly, the Court ordered that the penalty arising for this contravention was to be paid to the CFMEU. HPL Principal Luke Tiley described the decision as “further confirmation that a union that commences breach proceedings is acting in the public interest and should ordinarily have any civil penalty paid to it rather than the Commonwealth.” “The decision stands in stark contrast to recent Federal Circuit Court decisions in which similar penalties were ordered to be paid to the Commonwealth rather than the union,” Tiley added. Hall Payne Lawyers have more than 25 years of experience in protecting workers’ rights, and have specialist Industrial Relations experience and associated litigation. If you require assistance with any associated IR issue and want to achieve the best possible outcome, we can help. Please contact HPL Principal   Luke Tiley   (Brisbane) or HPL Associate   Joseph Kennedy   (Sydney), available on   1800 659 114   or via our   contact page . https://www.hallpayne.com.au/blog/rss/blog/2016/june/cfmeu-public-interest-role-praised-as-court-finds-against-rio-tinto/ Sun, 26 June 2016 00:00:00 The Federal Court has again criticised the Fair Work Building Inspectorate, this time for issuing the CFMEU with a Notice to Produce Documents that was “woefully deficient”, and therefore invalid. Earlier this year the Inspector issued the Notice for documents relating to the membership of three CFMEU members. The Inspector claimed the documents were required in relation to his investigation of alleged contraventions of the general protections provisions of the Fair Work Act 2009. Had the CFMEU failed to comply with the Notice that failure could attract a penalty of up to $54,000 for the Union and important civil liberties of the affected members would have been compromised.   The CFMEU opposed the Notice, arguing it was deficient. The CFMEU sought a declaration that the notice was invalid. This was the first case of its kind in relation to section 712 of the Act. In summary, the Court made the following findings in favour of the CFMEU. The power that an Inspector has is limited to those exercised in relation to a “building matter”, and the documents sought must relate to that matter. The Notice identified the location, date and the sections of the Act, but failed to give sufficient detail to allow the CFMEU to assess whether the Notice would, in fact, require the specified documents to be produced. While the contravention was said to have occurred at a building site, the Notice made no reference to the matter being investigated involving a building industry participant. This put the Notice outside the scope of the powers of the Inspector. The Notice was “woefully deficient in its particularity”, and that it failed to show that the production required was within the authority of the Inspector to request. Where that authority is not established, a notice will be void. Justice Logan of the Federal Court went on to observe: “This type of statutory inquiry power needs to be exercised with particular precision of language. Unfortunately, that particular message, which is by no means a new one, has been lost on the author of this notice.”   Accordingly, Logan J found the Notice to Produce was invalid. The Court’s decision has particular significance in the context of the ongoing political debate about the proposal to replace the FWBC with the ABCC which would have additional coercive power – the kind of powers that were mis-applied here. View the full decision here. Hall Payne Lawyers are experts in the area of Industrial Relations and associated litigation. If you require assistance with any associated IR issue and want to achieve the best possible outcome, we can help. Please contact HPL Principal Luke Tiley (Brisbane) or HPL Associate Joseph Kennedy (Sydney), available on   1800 659 114   or via our   contact page . https://www.hallpayne.com.au/blog/rss/blog/2016/may/cfmeu-records-another-win-as-fair-work-building-inspectorate-notice-to-produce-labelled-woefully-deficient/ Tue, 31 May 2016 00:00:00 A Nurse to Patient ratio has just been legislated across Queensland, strengthening patient safety & enhancing high quality health services across the State. The Palaszczuk government has delivered on an election commitment by legislating minimum nurse-to-patient and midwife-to-patient ratios across Queensland. This legislation will change the way that hospitals are staffed, with the ratios enhancing patient safety and ensuring the delivery of high quality health services across the State. Queensland joins Victoria as the only other State in the country to legislate how many patients can safely be allocated to a nurse or midwife, with research suggesting these changes improve patient outcomes and can be lifesaving. The Hospital and Health Boards (Safe Nurse-to-Patient and Midwife-to-Patient Ratios) Amendment Bill 2015 amends the Hospital and Health Boards Act 2011 by establishing a legislative framework which ensures safe nursing and midwifery staff numbers. The amendment regulation prescribes ratios of one nurse or midwife to every four patients for morning and afternoon shifts, and one nurse or midwife to every seven patients for a night shift. Nurses may adjust the number of patients allocated above the stipulated ratio according to a number of variables, including patient activity, acuity and other relevant factors, providing flexibility within appropriate safeguards to ensure best outcomes are delivered. Speaking during the second reading of the Bill, the honourable Cameron Dick, Minister for Health and Minister for Ambulance Services, acknowledged the instrumental role that the Queensland Nurses’ Union had played in advocating for, and assisting in developing, this legislation. Minister Dick spoke of the great benefits these changes will bring to patients, through improving their care, and the benefits to nursing staff through providing a safer workload and enabling the delivery of expert, professional services to their patients. The Queensland Nurses’ Union will be instrumental in the implementation of these changes. Keep in touch with your union to stay on top of how this will impact you at work. Having worked with the QNU for many years, we’re delighted to continue supporting the essential work they do, and congratulate them in driving this important change to Queensland’s public health system to the benefit of all Queenslanders. Image credit:   Queensland Nurses Union https://www.hallpayne.com.au/blog/rss/blog/2016/may/nurse-to-patient-ratio-becomes-law-in-queensland/ Mon, 16 May 2016 00:00:00 Decades after the disease was thought to have been eradicated from Australian coalfields, eight cases of black lung have been identified in the last year. What happens if you’re diagnosed, and what help is available? Black lung, or coal miner’s pneumoconiosis, is caused by breathing in dust from coal or graphite. In severe cases, the disease can be fatal. With the amount of time you have been exposed to coal dust being a determining factor, coal miners or those working in manufacturing graphite or man-made carbon products are at risk of developing the disease. The disease can progress long after exposure has ended, and severe symptoms can emerge up to 15 years later. Since 1993 all coal miners in Queensland are required to undergo pre-employment chest X-rays, with follow up scans done at least once every five years. The X-rays must be sent to the State Department of Natural Resources and Mines for review. Through this process, the Department has confirmed that eight Queensland mineworkers have been diagnosed with black lung in the past 12 months, with a likelihood of more diagnoses to come. What happens if I am diagnosed with Black lung? Black lung or coal workers’ pneumoconiosis (CWP) is ordinarily diagnosed following a physical examination and is confirmed by chest X-Ray and/or CT Scan. The disease can present in two forms: Simple CWP, occurring in the upper region of the lungs; and   Complicated CWP. Complicated CWP involves progressive massive fibrosis, sometimes known as PMF. Complicated CWP can severely inhibit lung function and predispose those affected to other chronic conditions. Black Lung Compensation If you develop black lung as a result of your employment you may be entitled to claim compensation for the condition. Claiming compensation for the condition is not straight forward – when you were diagnosed, and the length of time of exposure are important factors in determining your rights to claim compensation, and strict time limits apply to your claim. What if my claim has been rejected? There’s a history of recent claims for black lung compensation being rejected. We have been working with the CFMEU; acting for one of their members after BHP, their former employer and a self-insurer for workers’ compensation, rejected the claim. We have lodged a review of this decision with the Workers’ Compensation Regulator, but we can only hope that proper consideration is given by workers’ compensation insurers to claims brought for black lung in the future. What can I do if I’ve been diagnosed with black lung? If you or someone you know has been affected by black lung we strongly recommend seeking legal advice to discuss your rights to compensation. Whilst there is no known cure for black lung, compensation will provide access to medical treatment and support that can make a significant difference to a person’s quality of life. Hall Payne Lawyers act on a no win no fee basis, and have the experience and knowledge relevant to the mining industry to expertly assist anyone affected by black lung. We offer a free initial consultation, and discounted rates, to all CFMEU members. If you are diagnosed with black lung, contact your union for a referral to discuss your right to seek compensation. If you require further information please contact us on   1800 659 114   or via our   contact page . Photo Credit:   Solidarity Center , 2014. https://www.hallpayne.com.au/blog/rss/blog/2016/may/black-lung-what-is-it-and-what-can-i-do-if-i-m-showing-symptoms/ Sun, 08 May 2016 00:00:00 The CFMEU win again, as the Full Federal Court dismisses “inappropriate” proceedings from the Fair Work Building Industry Inspectorate, labelling their approach as “misconceived” & “unhelpful.” In a joint decision, the Full Federal Court have rejected the orders and declarations made at first instance, dismissing proceedings brought by the Director of the Fair Work Building Industry Inspectorate in their entirety. This decision found that two officials of the CFMEU, Chad Bragdon and Anthony Kong, were not in breach of the   Fair Work Act   when they entered a building site near Sydney Airport. The Full Court held that, when entering the site, Bragdon and Kong were not exercising a right under either the   Fair Work Act , or the NSW   Work Health and Safety Act 2011 . Further, the Court found that the appellants did not seek or claim to exercise a right under either the relevant federal or state legislation – elements that were held to be essential to establishing the alleged contraventions. It was regarded by the Court as “inappropriate” that the officials and the CFMEU were pursued in this way by the Director. Justices Buchanan, Reeves and Bromberg were also critical of the Director of the Fair Work Building Industry Inspectorate, directly criticising the way the case was pleaded at first instance and finding that they had not put forward the necessary evidence required to make out the alleged contraventions. While the evidence had been inadequate, their Honours further observed that the approach of the Director, in abandoning a claim they had relied on at first instance, was “unhelpful” and “misconceived”. While this case provides clarity around the applicability of the relevant right of entry provisions, it also shed some light on the appropriateness of requiring personal payment of any penalties. The Full Court considered the primary judge’s penalty orders, specifically that the individual respondents were to personally pay the penalty. Following these orders being issued at first instance, we identified this as the   biggest emerging issue in this area of the law , with its potential to require personal payment of significant pecuniary penalties on an individual. In this matter it wasn’t necessary to deal with this issue as the orders were thrown out, however the Full Court did choose to express a view. They considered the imposition of personal penalties as impractical and unnecessary. While this point is open to further consideration the comments from the Full Court would be considered persuasive. Hall Payne Lawyers are experts in the area of Industrial Relations and associated litigation. If you require assistance with any associated IR issue and want to achieve the best possible outcome, we can help. Please contact HPL Principal   Luke Tiley   (Brisbane) or HPL Associate Joseph Kennedy   (Sydney), available on   1800 659 114   or via the   contact form . https://www.hallpayne.com.au/blog/rss/blog/2016/april/full-federal-court-slams-fair-work-building-industry-inspectorate-in-another-cfmeu-win/ Thu, 28 April 2016 00:00:00 The Queensland police have dropped all charges against CFMEU organiser Justin Steele in the fifth instance of failed charges by the Police Taskforce. In May of last year a developer made a complaint against CFMEU organiser Justin Steele. The allegation was that Mr Steele had assaulted the developer while attempting to enter a Brisbane construction site to investigate complaints on matters relating to safety. Mr Steele was taking photographs of unsafe practices on the South Brisbane site when the developer stopped him from entering, demanding he give up his phone. Mr Steele walked away, with the developer following him. An argument followed. The incident was recorded by both sides, with the footage showing the developer striking at the defendant, but providing no support for the claim that Mr Steele assaulted the developer. Any criminal charges must be proven beyond reasonable doubt, yet the allegations of assault could hardly be made out based on these recordings. This matter was first mentioned in June of last year. It was initially referred to mediation, with the developer cancelling the mediation and the matter being listed for trial. Following extensive preparation for trial, in December 2015 the developer again entertained the idea of mediation despite having earlier refused it. We agreed with this course, and have been working towards mediation which was set to take place in February. In a bizarre turn of events, the developer cancelled this mediation as well. The protracted nature of what was an unsubstantiated allegation has come at significant cost to our client. Based on the developer’s approach to this matter, the trivial nature of the assault charges, the questionable context under which the charges arose and the significant resources already expended by both the State and the defendant, we requested the police drop these charges. On 23 March 2016 the Queensland police dropped all charges against our client; police prosecution offered no evidence upon the common assault and associated charges. Luke Tiley, Principal at Hall Payne Lawyers, said he is not surprised that the TURC police taskforce was unable to persist with the charges against the organiser. “This is another example of inappropriate use of police resources to regulate the conduct of industrial relations. It is the second time in as many months that the TURC police taskforce has had to discontinue charges against officials of our client, the Queensland Branch of the Construction Division of the CFMEU”, he said. If you require any assistance in relation to right of entry or an attempt to involve police in the conduct of industrial relations matter, please contact HPL Principal   Luke Tiley   (Brisbane) or HPL Associate   Joseph Kennedy   (Sydney), available on   1800 659 114   or via the   contact form . Image credit:   Highways Agency photo library   under   Creative Commons licence . https://www.hallpayne.com.au/blog/rss/blog/2016/march/trade-union-royal-commission-police-taskforce-drop-all-charges-against-cfmeu-organiser/ Thu, 24 March 2016 00:00:00 The ETU has successfully obtained three protected action ballot orders despite opposition from NECA, the peak body for employers in the electrical contracting industry. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the ETU) recently made three protected action ballot applications under the Fair Work Act. NECA, the peak industry body representing employers in the electrical contracting industry, attempted to challenge the applications on the basis that the agreements included content that was not about “permitted matters”, so the ETU was not genuinely trying to reach agreement. NECA also originally argued that the ETU was engaged in pattern bargaining but that argument was later abandoned. The Fair Work Commission rejected all of NECA’s arguments. Senior Deputy President Richards referred to precedent establishing that scrutinising claims to determine whether they are about permitted matters was an unnecessary delay to the agreement approval process, and that it was therefore inconsistent with the relevant objects of the Act. Instead, the Commission found that there were a number of considerations to be made, including when any concerns were voiced and what the response from the relevant union was to those concerns. In this matter, the employers waited until the day of the hearing to articulate their argument in detail. This was despite the ETU having written to the employers asking them for notification of any concerns, and that negotiations had already been in progress for some time, giving ample opportunity for the employers to express their concerns. SDP Richards was critical of the employers’ behaviour, noting that at no stage during any of the discussions did the employers raise their concerns. To have these objections to an application for a protected action ballot order rejected so conclusively confirms that where an alleged non-permitted matter is contained within an agreement it does not necessarily follow that the union was not genuinely trying to reach agreement, nor will it necessarily be relevant to determining that question. This matter saw the employer’s association trying to limit the rights of the workers and the union in the negotiation process. By working with Hall Payne Lawyers, the ETU were able to demonstrate the flaws in their arguments, succeeding in their applications for three protected action ballot orders. If your employers try to stop you taking protected action, we can help fix this for you. Please contact HPL Principal   Luke Tiley   (Brisbane) or HPL Associate   Joseph Kennedy   (Sydney), available on   1800 659 114   or via   the contact form . Photo Credit:   Garry Knight https://www.hallpayne.com.au/blog/rss/blog/2016/march/etu-protected-action-ballot-approved-despite-opposition-from-neca/ Mon, 21 March 2016 00:00:00 What started as an unfair deal pushed upon staff at Capalaba Sports Club has ended in the opportunity for hundreds of hospitality workers around the country to claim unpaid penalty rates from HospitalityX. In May 2015 management at the Capalaba Sports Club had a meeting with all casual employees, informing them that they were being outsourced to Hospitality X, a subsidiary of AWX. During this process, staff were told that there would be a new certified agreement, which gave the club the option to stop paying penalty rates for work on nights, weekends and public holidays. Staff were given 72 hours to sign on to the agreement. One worker, Samarah Wilson, refused to sign on to this unfair deal. She lost her job. “When I was first told that I was being forced onto an exploitative agreement which removed my right to receive penalty rates I felt sick. I wasn’t sure why my employer would do such a thing, and how it was legal. I kept thinking that it wasn’t fair and it wasn’t right.” Don Brown, State MP for Capalaba, contacted United Voice who started to campaign publicly. Behind the scenes, Hall Payne Lawyers worked with United Voice to put an end to this exploitative agreement. In order to find out more information to identify any potential breaches,   HPL worked with United Voice to enforce a Right of Entry   and gain essential records for future action. This included commencing litigation on behalf of the Union in the Federal Court, alleging a breach of right of entry provisions. Following submissions from United Voice and evidence filed in the Court, HospitalityX produced the requested documents and proceedings were discontinued. With this information HPL was able to run further litigation on behalf of the Union. In December last year we commenced proceedings alleging a number of contraventions by HospitalityX against two of their employees, members of United Voice. The proceedings were scheduled to take place later this year, but we’re thrilled to announce that HospitalityX has capitulated to the Union’s requests. The members who made the claim have been paid their penalty rates, and the agreement has been binned. Following the campaign, AWX has also made the decision to wind up HospitalityX. While this win has an immediate impact on the workers involved in the case, its ability to impact hospitality workers everywhere is huge. HospitalityX had hundreds signed up to their shonky agreement, and the result in this matter seriously undermines its legitimacy. Hundreds of hospitality workers around the country may now be eligible for back pay, with   United Voice running a campaign   to get current and former employees the penalty rates they’ve worked for, and that they deserve. HPL Principal Luke Tiley ran the case for United Voice and the members who made the claim. “The fact that this unprecedented attempt by HospitalityX to strip away penalty rates from unsuspecting workers was so spectacularly unsuccessful, will send a strong message to other greedy employers”, Luke said. United Voice’s role in challenging this agreement has been instrumental in pushing for fairer work conditions, and ensuring that hospitality workers continue to get the pay that they’re entitled to. “Without the help and support of the United Voice community and Hall Payne Lawyers, the great wins that have been achieved for hospitality workers would never have happened. The workers of the Capalaba Sports Club would still be underpaid and disadvantaged by the HospitalityX agreement,” Samarah Wilson, a former employee of the Capalaba Sports Club said. “I am extremely grateful for the hard work and perseverance of United Voice and of Hall Payne lawyers in the fight to see hospitality workers being duly compensated for the unsociable hours they work.” If you believe you’re not getting the pay you’re entitled to and require legal assistance in enforcing your rights please contact HPL Principal   Luke Tiley   (Brisbane) or HPL Associate   Joseph Kennedy   (Sydney), all available on Free Call   1800 659 114   or via the   online contact form . https://www.hallpayne.com.au/blog/rss/blog/2016/march/unfair-deal-binned-as-united-voice-restores-penalty-rates-for-hospitalityx-workers/ Sun, 20 March 2016 00:00:00 Restraint of former employee backfires, as the Queensland District Court throws out Real Estate Agency’s attempts to limit the activities of a former employee. Our client, a real estate agent, was unhappy in her job. She resigned from her position of Sales Associate, triggering a poor reaction from her employers. While she was willing to serve out her notice period, she was thrown out of her boss’s office and told to finish work that day. Shortly after, our client got a job with another real estate agent in a neighbouring suburb, working as a Senior Sales and Marketing Consultant. While working here she was approached by two former clients regarding properties that they were looking to put on the market. These clients had been impressed with her work in the past, seeking her out in order to continue the relationship. Her former employer thought otherwise – alleging that she was misusing their confidential information to get leads on sales of property. They commenced proceedings in the Queensland District Court on that basis. The former employer sought interlocutory orders to restrain our client from dealing with anyone who was their client as of the day her employment was terminated. They further requested that our client pay all profits made from these clients. The former employer also claimed that there was an implied Restraint of Trade on our client, arising from her employment with them. They argued that she was unable to work in any way which directly competed or conflicted with their commercial interest. The Court rejected these arguments, dismissing the claim for interlocutory relief and finding these allegations had no grounds. In addition to dismissing the former employer’s claims as unfounded, Judge Andrews SC ordered costs against them. Our client is relieved with the outcome, not only as it sees a potentially harmful and restrictive claim come to an end, but that she now has clarity about the work she can do with her new employer. The case demonstrates how the law can be misread, particularly by employers trying to gain a benefit that just doesn’t exist. There’s a particular tendency for this to happen within the real estate sector, where we’ve found litigation against former employees has been increasing. If you find yourself caught up in a situation like this, the default may be to accept what your former employer is telling you, and limit the type of work you perform and who you work for as a consequence. You shouldn’t. As a worker the law is there to protect you – getting proper legal advice can help you better assert your rights. Should you require assistance with your contract of employment, or attempts from a former employer to restrict your ability to work for someone else, we can help. Please contact HPL Director   Luke Forsyth   (Sydney) or Associate   William Ash   (Brisbane) on   1800 659 114   or via   our online form   for a consultation today. https://www.hallpayne.com.au/blog/rss/blog/2016/march/district-court-dismisses-real-estate-employer-s-attempt-at-restraint-of-former-employee/ Thu, 17 March 2016 00:00:00 The Queensland Supreme Court has ruled that fund management fees are not to form part of damages payable where an amount is held on trust following the death of a minor’s parents. Our client, the applicant, was just one year old when both her parents died after their parked vehicle was struck by another car. There was an agreed settlement, with the claim before the court being about whether the cost of the administration and management of that amount to be held on trust was also payable by the respondent, RACQ Insurance. The claim was brought under s 64 of the Civil Proceedings Act 2011 (Qld) which allows the Court to award “damages it considers to be proportional to the damage to them resulting from the death.” The issue in question was whether fund management fees fall within the concept of “damages… resulting from the death”. While it was accepted by both sides that fund management fees were recoverable in a common law claim arising from a negligently caused injury, RACQ argued that the Civil Proceedings Act did not allow recovery of such fees. Our argument for the applicant was that any fees payable on management of an amount of money held on trust for the applicant minor did result from the death – had her parents lived there would be no cause to put money on trust and accrue such fees. Those fees are a foreseeable consequence of loss resulting from the death of our client’s parents. Justice Boddice disagreed. In making his decision, Boddice J referred to the 1988 Queensland decision of Fox v The Commissioner for Main Roads which found that costs associated with the administration of funds were not properly chargeable against the defendant. Reviewing this decision in the context of the newer legislation, the 2011 Civil Proceedings Act, his Honour found the legislature had no stated intention to change the type of damages recoverable. As a result, Boddice J found no basis to extend damages recoverable to include administration fees. Notwithstanding this decision (and any option of an appeal), there is no denying that a minor is unable to manage large sums of money which are usually the subject of settlements (or court awards) for actions for loss of dependency upon one (or in this case both) parent(s). It is too important an issue not to be properly dealt with and that is probably achieved by legislative amendment. If you believe you or someone close to you has a claim and you need help navigating how this decision may impact your claim, we can help. Please contact a member of our personal compensation law team   on   1800 659 114   or via   our online form   for a consultation today. https://www.hallpayne.com.au/blog/rss/blog/2016/march/qld-supreme-court-rules-on-damages-payable-to-minor-following-parents-death/ Sun, 13 March 2016 00:00:00 Doyle’s Guide name Hall Payne Lawyers Associate Juliana Virine as an Employment Law Rising Star, and recognise HPL and Directors Luke Tiley and Luke Forsyth as national leaders in employment law. Doyle’s Guide   is the definitive listing and commentary on Australia’s leading law firms and lawyers. Ranked according to a peer-based review system alongside interviews with clients, peers, and industry bodies, the listing captures the leading lawyers and firms across practice areas. Already heavily represented in the areas of   Workers’ Compensation   and   Employment Law   in Queensland, Hall Payne Lawyers is delighted to see Associate   Juliana Virine   recognised as an employment law rising star. Having been with the firm for almost four years, Juliana has been an essential part of our Industrial Relations team. Juliana has a strong history representing workers, having spent time at both United Voice and the Queensland Nurse’s Union before joining HPL, and she brings a deep commitment to social justice to her work. The announcement comes alongside the release of the Doyle’s Guide national listings in employment law. Having already featured among Brisbane’s leading employment and industrial relations firms,   Hall Payne Lawyers has been named as one of the leading firms   representing employees nationally. To round off the hat-trick, HPL Directors Luke Tiley and Luke Forsyth have been named among   the best Employment and Industrial Relations lawyers   representing employees nationally. This is on top of having both been featured in the Brisbane based listings last month. If you have an employment or industrial relations matter get help from the best. Contact HPL Associate and Rising Star   Juliana Virine , or HPL Directors   Luke Forsyth   and   Luke Tiley   on   1800 659 114. https://www.hallpayne.com.au/blog/rss/blog/2016/march/hpl-associate-juliana-virine-recognised-as-employment-law-rising-star/ Wed, 09 March 2016 00:00:00 The Federal Court has found that Rio Tinto, operator of the Hail Creek Mine, unlawfully victimised a worker and CFMEU member who had won a $630,000 damages claim against the Mine. Justice John Reeves described the case as one with “remarkable history” characterised by the “resilience” of the worker and the “recalcitrance” of Rio Tinto. The worker, Michael Haylett, injured his neck driving a bulldozer at the Mine. Rio Tinto admitted its negligence caused the injury. When Mr Haylett returned to work, in October 2010, the Mine assigned him to work on a drill rig. He worked in that role for 3 years without any issue. The Queensland District Court awarded Mr Haylett $630,000 compensation for his injury in November 2013, taking into account that Mr Haylett continued working at the Mine. Five days after that decision Rio Tinto stood Mr Haylett down, asserting he did not hold a valid health assessment. He remained stood down with pay until March 2014, when his pay was stopped. In September 2014, the Mine sent Mr Haylett for a second health assessment. When the Mine’s nominated medical advisor assessed Mr Haylett as fit subject to restrictions, the Mine contacted the doctor and asked him to change his report. Justice Reeves noted during the hearing that it was “disgraceful” that Rio Tinto’s “staff prevailed on [the doctor] to change a report directed towards the safety of an employee, because that served [the Mine’s] litigious or commercial or industrial…convenience.” Despite Mr Haylett bringing two successful Supreme Court cases about the validity of the health assessments, the Mine refused to return him to work. Even after the   Queensland Court of Appeal declared   that he did have a valid health assessment, the Mine refused to take him back. The Federal Court found that the stand down was contrived: it was done in retaliation for him winning his damages claim, and was in breach of the Fair Work Act. The Court also found that Mr Haylett had been ready, willing and able to work and the Mine’s failure to pay Mr Haylett his wages was in breach of the Mine’s enterprise agreement. Justice Reeves was critical of the refusal to return Mr Haylett to work following the Court of Appeal’s declaration, commenting that it was confounding an organisation of the status of the Mine could obstinately maintain the incorrect view. In commenting about the purpose of the health assessment scheme Justice Reeves said in the hearing “It’s not something that the employer can use to dispose of workers because they’re suffering from a disability. It’s a process that requires assessment in the interests of the worker every five years to ensure that they’re not being affected by working in a coal mine.” The outcome is a vindication of the Union and Mr Haylett’s insistence on rights at work, and is a testament to Mr Haylett’s resilience in asserting his rights. The Court will hold a further hearing on 18 April 2015 to determine compensation and penalties. If you require any assistance in relation to your right to work please do not hesitate to contact HPL Principal   Luke Tiley   and HPL Associate   Juliana Virine   on   1800 659 114. https://www.hallpayne.com.au/blog/rss/blog/2016/march/cfmeu-member-wins-long-running-case-against-rio-tinto/ Mon, 07 March 2016 00:00:00 The Queensland Supreme Court has awarded a former electrician in excess of $1.28 million in damages for injuries sustained in a motor vehicle accident on 1 July 2011. The judgment by Justice Duncan McMeekin is considered to be the highest injury compensation in any jurisdiction in Australia for a non-catastrophically injured electrician. On 1 July 2011, whilst driving home from work, Mr Martin was involved in a rear end collision on the Peak Downs Highway north of Clermont when his stationary vehicle was hit with speed causing it to be shunted forward and colliding with the vehicle in front. Prior to the accident, Mr Martin had an exemplary work history with decades of experience working as a highly skilled electrician in both the mining and commercial sectors. Mr Martin was 39 years of age at the time of accident and 44 at the time of trial. It was accepted that he had sustained a moderate lumbar spine injury and a minor cervical spine injury. Following the accident Mr Martin was limited in his capacity to perform various manual tasks and precluded from returning to work as an electrician. As a result he suffered significant financial hardship, had to sell the family farm and was forced to follow a nomadic life; often living in caravan parks, men’s shelters and sleeping rough using a swag. In court, the defendant contended Mr Martin’s injuries were not severe, and that Mr Martin lacked the motivation to obtain alternative employment. They alleged a failure to mitigate loss. Cale Fryer, Senior Associate with Hall Payne Lawyers, acted for Mr Martin. Mr Fryer noted that had Queensland had in place thresholds similar to those in place in other states then Mr Martin would have most probably been denied his right to seek compensation. “This seemingly moderate injury has had a very significant adverse impact upon my client’s ability to earn an income in his chosen trade. Even a 5% threshold (if it was in place) would most probably have meant that he would not have been able to pursue his right to seek compensation due to the negligence of the at fault driver”   Mr Fryer said. The case examines the difference between the concept of assessment of physical impairment (which is based on strict medical criteria) and that of ‘disability’ which demonstrates how that physical impairment adversely impacts the injured person’s life, in particular his or her ability to earn income following injury. “We have a well funded and fair compulsory-third-party (motor vehicle) insurance scheme in place in Queensland, and this case highlights the importance of keeping it that way” , he said. “My client can now get on with trying to get his life back together, and whilst this award won’t relieve him of the many challenges he will continue to face going forward, it will allow him to obtain a reasonable quality of life, which has been denied him since the accident” If you suffer an injury or illness that impacts your ability to work we can help. Contact  a member of our personal compensation team   on   1800 659 114   for a consultation today or complete an   online inquiry form . Courier Mail: “Injured Electrician wins record compensation of $1.28 million” The Morning Bulletin: “Injured electrician awarded a record $1.28m after accident” https://www.hallpayne.com.au/blog/rss/blog/2016/february/hall-payne-lawyers-secures-record-128-million-injury-compensation-for-electrician/ Tue, 23 February 2016 00:00:00 HPL Principals Luke Tiley and Luke Forsyth recognised as leading employment lawyers, while Hall Payne gets recognised as leading employment and IR law firm for the fifth year running by the prestigious Doyles guide. Doyles guide is the definitive listing and commentary on Australia’s leading law firms and lawyers. Earlier this week they released their list of top employment and industrial relations lawyers, and the leading employment law firms in Brisbane, with Hall Payne Lawyers featuring prominently in both. Determined by a ranking system that analyses peer-based review and interviews with clients, peers and relevant industry bodies, the Doyles listings analyse the highest achievers across practice areas and location. 2016 sees HPL Principal   Luke Forsyth   listed as one of the leading lawyers in Employment and Industrial Relations in Queensland for the 3rd time, and a new entry by HPL Principal Luke Tiley . Tiley is the only new addition to the guide’s collection of leading lawyers, with both Lukes being rated by their peers as being among the   top 15 Employment and Industrial Relations lawyers in Queensland. For the fifth year in a row, Hall Payne Lawyers has been named as one of the   leading Employment and Industrial Relations law firms.   This comes after a big year for the Employment and IR team at HPL, which saw   two wins in the High Court   as well as a number of key victories for clients in lower courts. This recognition follows on from the release of the Doyles guide leading workplace compensation lawyers and leading workplace compensation law firms lists, which recognised the work of HPL principals   Cameron Hall and Linda Brangan and Hall Payne Lawyers   late last year. If you have an employment or industrial relations matter get help from the best. Contact HPL Directors   Luke Forsyth   and   Luke Tiley   on   1800 659 114   for a consultation today. https://www.hallpayne.com.au/blog/rss/blog/2016/february/hpl-named-as-queensland-s-leading-employment-lawyers-for-5th-year-running/ Wed, 17 February 2016 00:00:00 Do you ever think about what happens to everything and everyone you care about if you suddenly find yourself in the situation where you can’t make decisions? Most of us have a will in place, but very few people will make provisions for someone to make important decisions when they’re not able to. That’s where an Enduring Power of Attorney comes in. What is an Enduring Power of Attorney? You may be familiar with a general Power of Attorney, which allows someone to make decisions if you’re unable to make them for a period of time, provided you still have full legal capacity to make those decisions. An Enduring Power of Attorney (EPA) differs in that it operates specifically if and when you don’t have the capacity to make decisions. Ensuring your EPA is drafted correctly means you know that even if the worst happens, your best interests will be taken care of. An EPA gives the person you nominate the power to make decisions on your behalf. It can apply to your property, legal and financial affairs. You may nominate any, or all, of these areas as areas where your enduring attorney can make decisions on your behalf. In Queensland, Victoria and the Australian Capital Territory you can also give authority to your enduring attorney to make decisions around personal, health and well-being matters. Why have an Enduring Power of Attorney? Having an EPA in place gives you the comfort of knowing that if something does happen to you, someone you trust has the legal authority to make the decisions that need to be made. A correctly drafted EPA gives the person you nominate the authority to make decisions on your behalf, at any point in time. You can nominate who can make these decisions, what decisions can be made, what should be considered in making any particular decisions, any limitations to making decisions, and when they can start making decisions on your behalf. Above all else, an EPA means you have someone who you have appointed to make these decisions in the way that you would want them to be made. Who should be my Enduring Power of Attorney? Should they need to exercise their authority, an EPA will end up being an important part of your life. The person you appoint should be someone you trust absolutely. This person is obliged to always act in your best interests and within the scope of their authority, and you should have confidence that they will understand these obligations. It’s very important to think carefully about your choice of Attorney. Whoever you appoint will make important decisions for you so it’s essential you appoint someone who you believe understands your wishes, and has the skills to manage your financial and legal affairs according to those wishes. You may decide to appoint more than one Attorney. If you do, you can prescribe how they will work together, being: Jointly, where they must act together in all situations; or Jointly, severally, and, in some cases, by a majority, giving your attorneys the option to act individually, as a majority, or as otherwise stipulated. Can I appoint an Enduring Power of Attorney for a specific purpose? You are able to place limitations or conditions on the authority of any or all Attorneys you appoint. An example could be limiting your Attorney’s authority to act on your behalf in property matters only, or requiring that they consult with a family member before exercising their authority. You may also nominate an Attorney for a very specific purpose, such as paying a particular bill, or a class of events, such as paying bills in general. How do I appoint an Enduring Power of Attorney? An EPA document is as important as a Will, and for this reason we advise you obtain legal advice to help you draft it according to your specific wishes. Hall Payne Lawyers has a team of experts who can walk you through the process, ensuring that your EPA gives your nominated Attorney the authority they need to make decisions on your behalf. When should I appoint an Enduring Power of Attorney? You can prepare your EPA at any time, and indicate when you would like the authority to commence. This may be from the time the Attorney has accepted their appointment, when a medical practitioner considers that you are no longer able to manage your affairs, at the Attorney’s discretion or at some other nominated time. An EPA stops operating when you die. From this point forward, the executor of your Will takes on all responsibilities associated with your estate. You can revoke your Power of Attorney if, for some reason, you no longer believe your Attorney is acting according to your wishes. You can do this at any time, in writing, as long as you have the capacity to do so. Where you don’t have the capacity to make your own decisions your EPA will continue to operate, although their position is reviewable by the Court. Hall Payne Lawyers has an online tool designed to make the process of writing your EPA simple and affordable, as well as a team of experts who can help.   Create your EPA here today , or talk to one of our team to get advice on your best options   via email   or on   1800 659 114 https://www.hallpayne.com.au/blog/rss/blog/2016/february/what-is-an-enduring-power-of-attorney-and-why-do-i-need-one/ Mon, 15 February 2016 00:00:00 In July 2015 a United Voice member was unfairly dismissed by her employer, ISS. The Union were successful in obtaining orders at the Fair Work Commission, but ISS, along with Gold Coast Airport, refused to comply. Today the member returns to work the first time since July, thanks to United Voice and Hall Payne Lawyers. Mid last year an Aviation Protection Officer employed by ISS was terminated from her position at Gold Coast Airport. Shortly after, United Voice, the employee’s union, filed an unfair dismissal application with the Fair Work Commission. The application alleged the dismissal was unfair, and successfully obtained orders reinstating the employee to her position from 4 January 2016. The orders also provided for full back pay. ISS complied with this component of the order, including payment of a regular income, but this income was accompanied with a direction the employee not return to work. ISS had emailed both the Union and the FWC to advise that they were unable to comply with the Commissioner’s order for reinstatement as Gold Coast Airport, their client, had exercised rights under their commercial contract with ISS to exclude the employee from providing services. While ISS offered alternative roles to the employee, local alternatives offered were insulting and undermined the qualifications, skill and experience of the employee. Other options presented to the employee included a role at Brisbane Airport, an unfeasible alternative for a Gold Coast based part-time worker. Writing following ISS’s refusal to comply with the orders the employee spoke of the humiliating and devastating experience of the dismissal, and how the orders had been vindicating. The employee had wanted to return to the workplace with her head held high, so that colleagues could see she had been treated unfairly, and wasn’t a bad employee. While the Commission had supported her right to do this, the joint actions of ISS and Gold Coast Airport deprived her of what she wanted most – to return to her job. Until this point United Voice had acted for their member, obtaining the orders from the FWC reinstating the employee. When ISS refused to comply United Voice called on Hall Payne Lawyers to seek enforcement and get the worker back to work. On 1 February HPL commenced proceedings in the court against both ISS and their client, Gold Coast Airport, to enforce the order. This process kicked off the commencement of negotiations which ultimately saw a settlement. As a result of that settlement this United Voice member will today return to her job for the first time since July last year. The negotiated settlement also resulted in an agreed amount of costs being paid to our client, United Voice. What happened to this employee was wrong in the first instance, and was compounded by ISS and Gold Coast Airport’s refusal to comply with the FWC order. The two stages of this matter, and the actions and support of United Voice, demonstrate how a Union can drastically change your ability to protect your rights and work, and why Union membership is so important. Through representing the employee at the Fair Work Commission, and then calling on Hall Payne Lawyers to enforce the Orders provided United Voice together with HPL have returned an employee to her job and with full back pay. The other aspect of this case is the value and dignity in work. While this employee was receiving full pay, what ISS’s actions failed to acknowledge is the non-monetary value in work. The employee’s refusal to settle for anything less than the job she had trained for, worked in for five years, and loved, is a demonstration of the important role work plays in our lives, and why there’s value in fighting for your rights in the workplace. If you believe you’ve been unfairly treated and require assistance please contact HPL Principal   Luke Tiley  (Brisbane) or HPL Associate  Joseph Kennedy  (Sydney), both available on Free Call 1800 659 114. https://www.hallpayne.com.au/blog/rss/blog/2016/february/united-voice-member-back-at-work-thanks-to-hall-payne-lawyers/ Thu, 04 February 2016 00:00:00 Hall Payne Lawyers Principals Cameron Hall and Linda Brangan recognised as leading workplace compensation lawyers by the prestigious Doyles Guide. Late last year   Doyles Guide , the definitive listing and commentary on Australia’s leading law firms and lawyers, released their list of top   workplace compensation lawyers   and the leading   workplace compensation law firms   in Brisbane. Determined by a ranking system that analyses peer-based review and interviews with clients, peers and relevant industry bodies, their listings analyse the highest achievers across practice areas and location. Already identified as one of the leading law firms for our Employment Law team earlier in 2015, we’re thrilled to have been named one of the top firms for Workplace Compensation in Brisbane. This highly respected placement is a significant achievement for the firm, and confirms our standing as one of the best workers’ compensation firms in the State. The esteemed position Hall Payne Lawyers holds is due to the quality of our team working in Personal Injury. Headed by HPL Principals   Cameron Hall   and   Linda Brangan , it’s no surprise to see both Cameron and Linda recognised in the Doyles Guide’s top 15 Workplace Compensation Lawyers in Brisbane. If you think you may have a workers’ compensation claim our team is best placed to assist you in your matter. Please contact HPL Directors   Cameron Hall   and   Linda Brangan   on   1800 659 114   for a consultation today. https://www.hallpayne.com.au/blog/rss/blog/2016/january/hall-payne-lawyers-recognised-as-leading-workplace-compensation-lawyers-in-brisbane/ Mon, 04 January 2016 00:00:00 After a tumultuous period at the hands of the Newman Government, 2015 has seen significant changes to the legal framework for workers compensation in Queensland. As the year comes to a close, HPL Directors Cameron Hall and Linda Brangan walk us through how the current workers’ compensation scheme in Queensland came about, and how it might apply to you. The   Workers’ Compensation and Rehabilitation Act 2003   (the Act) and associated   Workers’ Compensation and Rehabilitation Regulation 2014   (the Regulation) provide a framework for managing workers’ compensation and rehabilitation in Queensland, with a statutory requirement that the scheme undergo periodic public review. Having been subject to thorough review and amendment in 2010 by the then Bligh Labor Government, the Newman Government took aim at the reformed workers’ compensation scheme. It referred responsibility for a review of the scheme to Parliament’s Finance and Administration Committee, who made a number of recommendations. The most significant of these findings were that: • After considering all arguments for and against imposing an impairment threshold that no impairment threshold should be imposed. • Amendments brought in to address the increase in common law claims had not been fully realised at the time of the their review due to the three statute of limitations that applies to common law claims. On that basis the Committee determined that there should be no changes to the current system. • The Committee recognised that imposing thresholds to accessing common law rights would improperly remove rights from one group of citizens that were available to other citizens.   The Newman Government did not accept the recommendations of its own Committee, amending legislation which the review had found to be working well and was widely accepted to be one of the best systems in the country. These amendments introduced a threshold requiring more than 5% permanent impairment resulting from an injury before an employee had the ability to sue their employer in negligence, along with a number of other restrictive requirements. Until very recently, this has been the workers’ compensation scheme operating in Queensland. 2015 amendments Hall Payne Lawyers is recognised as a substantial stakeholder in workers’ compensation injury in Queensland. The firm has been actively involved at a political level lobbying governments for fair and appropriate workers’ compensation benefits for Queenslanders. When the Newman Government set its sights on Workers’ Compensation legislation, we joined with a handful of labour law firms in creating the Work Cover Protection Coalition, a crucial player in creating a groundswell of public opposition to these amendments. On the back of this opposition, the Queensland Labor Party campaigned with a very clear policy to wind back this unfair injury threshold and, in January 2015, won the election with this policy as part of their platform. Following that victory, Parliament’s Finance and Administration Committee commenced a review of the changes, accepting submissions and inviting further feedback via a very limited public hearing. Hall Payne Lawyers was involved at both these stages, as one of the only firms of lawyers invited to participate directly with the committee. Based on this review, the Palaszczuk Government made good on that election promise, with the   Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2015   coming in to force on 24 September 2015. The amending Act brought a number of changes which establish the framework for workers’ compensation in Queensland today. It: • removes the threshold   on the entitlement to seek damages that requires a worker to have a DPI of greater than 5% to access common law for all injuries sustained on or after the Queensland State election (31 January 2015); • establishes the ability to provide additional compensation   to particular workers impacted by the operation of the common law threshold (that is workers who sustain injury on or after 15 October 2013 and before 31 January 2015) • introduces provisions for firefighters   diagnosed with one of 12 specified diseases that will deem their injury to be work related; • removes the entitlement prospective employers   had to obtain a copy of a prospective worker’s compensation claims history from the Workers’ Compensation Regulator; and • clarifies certain procedural aspects   of the claims process and reduce regulatory burden through a number of minor miscellaneous amendments. What does the Palaszczuk reforms mean to injured workers in Queensland? How injured workers are affected by these amendments depends on the date of their work related injury. Workers injured on or before 15 October 2013 or from 31 January 2015 Workers who were injured on or before 15 October 2013 or from 31 January 2015 and who have not accepted a lump sum compensation offer for that injury have an entitlement to access common law damages for their injury. Once these workers have had their DPI assessed, they will have the option of either accepting a statutory lump sum payment offer from their insurer or seeking common law damages for their injury. In effect restoring the position for access to common law damages prior to the Newman amendments. Workers injured between 15 October 2013 and 31 January 2015 Workers injured on or after 15 October 2013 and before 31 January 2015 will not have their common law rights restored for work related injuries. In acknowledging the adverse impact that the threshold will have on this group of workers, an additional lump sum compensation payment has been introduced. Section 193A of the Act provides that to be eligible for this additional lump sum compensation, a worker must have: • been injured on or after 15 October 2013 and before 31 January 2015;   • had a DPI of five per cent or less assessed for their injury; and • not accepted or rejected an insurer’s statutory lump sum offer for that injury. The conditions and process for how these payments are to be made is outlined under new provisions prescribed in the Workers’ Compensation and Rehabilitation Regulation 2014 (the Regulation). This includes a requirement that the insurer be satisfied, on the balance of probabilities, that the worker’s employer is, or would have been, liable to pay damages to the worker for their injury but for the application of the common law threshold. So how much does the injured worker receive as an additional lump sum? An additional lump sum is based on the worker’s Degree of Permanent Impairment (DPI) and whether they sought legal assistance for certain steps in the additional lump sum process. The amounts are fixed and equate to an additional two times the amount of statutory lump sum compensation they are already entitled to for their DPI. The worker may also be compensated for the legal costs prescribed under the Regulation. Workers who have already accepted a lump sum compensation payment The changes introduced by the Amendment Act provide that an injured worker must not have already accepted a lump sum compensation offer for their injury from the insurer if they are to be eligible to receive an additional lump sum payment. A large number of injured workers who will not benefit from the Palaszczuk amendments remains because they will have already accepted their lump sum compensation. This group of injured workers do not have their common law rights reinstated Still not sure how these changes may effect you? Hall Payne Lawyers’ personal injury team includes accredited specialists in the area of workers’ compensation, and our role in helping shape these reforms means we can help you understand the full scope of workers’ compensation benefits for Queenslanders, and what you’re entitled to. If you require any assistance with your claim for compensation please do not hesitate to contact a member of our workers compensation teams:   1800 659 114 . https://www.hallpayne.com.au/blog/rss/blog/2015/december/2015-in-review-workers-compensation-in-queensland/ Mon, 28 December 2015 00:00:00 Hall Payne Lawyers Associate and Employment/Industrial Law Accredited Specialist Joseph Kennedy is a key player in our Industrial Relations team. As 2015 comes to a close, read about the year that was in his Industrial Relations review. What do you think is the biggest emerging issue in employment and industrial law from 2015? In my view, the biggest emerging issue is the rising prevalence of individuals being found liable by courts for contraventions of the   Fair Work Act   (FW Act). This has largely been caused by regulators, unions and employers showing an increasing desire to pursue the individual persons involved (for the purpose of s.550 of the FW Act) in contraventions, whether they be union officials and permit holders, or company directors and managers. The consequences of such a finding can lead to the imposition of significant pecuniary penalties on the individual and even orders to pay compensation caused by the contravention. The imposition of pecuniary penalties now has the potential for more serious consequences for the individual, in light of the Federal Court decision of Director of the   Fair Work Building Inspectorate v Bragdon Ors (No. 2)   [2015] FCA 998. That judgment, presently on appeal to the Full Court, stands for the proposition that an individual right of entry permit holder found to have contravened the Act, can be ordered by a court to pay the penalty personally and not seek or receive reimbursement from their union or a related party. In my view, this principle is equally applicable to company directors and managers found to have contravened the FW Act, for example by failing to pay wages or entitlements, and may even be the subject of legislative amendment in 2016. What role do you think unions can play in this issue? Unions need to continue to be vigilant in their approach to contraventions of the FW Act both in relation to their own compliance but also when pursuing companies. They should not miss the opportunity to pursue company directors or managers, where possible, for contraventions of the FW Act. Whether the Court will be likely to make similar orders as those made in Bragdon will be likely settled either on appeal or by the Commonwealth Parliament. Compared to 2014, do you think there’s anything that has taken a back seat when it comes to IR? The monitoring of employer compliance with employment and industrial laws. Regulators also appear to have shown a lower willingness to pursue employers in the courts, preferring instead to receive undertakings or settlement agreements. This, unfortunately, has the potential to create an expectation amongst employers that non-compliance has a negligible real cost. The 7/11 scandal that emerged a few months ago is but one example. This year has seen some incredible decisions come down in favour of HPL clients – when you look back in five years time, what do you think will be the standout? Our High Court victory in CEPU v Queensland Rail   would have to be a highlight of 2015. That decision has the potential to fundamentally alter the way state governments go about structuring their various entities in the future and typifies the inherent value in strategic and well executed litigation for unions. Our other High Court success   in Commonwealth v Director, Fair Work Building Industry Inspectorate & CFMEU [2015] HCA 46 means unions and the regulator will be able to continue to reach common-sense resolutions to prosecutions and highlights the inherent distinction between criminal and civil prosecutions. Finally, our recent success in achieving a stay in our appeal of the above first instance Federal Court decision in Bragdon in relation to personal payment of penalties and right of entry purpose when entering sites may prove to be a standout, along with the outcome of the substantive appeal, in relation to those two emerging legal issues. Stepping outside the firm, what do you think have been the big decisions effecting unions and workers? The recent sham contracting case in the High Court –   Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd   [2015] HCA 45 – reinforces not only the increasing prevalence of such sham arrangements in the industrial relations landscape, but also the potential liability for employers and litigious opportunities for employees found in such situations, and the unions representing them. Any predictions for 2016? The Liberal government to take a suite of reforms in the industrial relations area to the next election, including not least of all increasing the maximum penalty for a contravention of legislation (with the aim to punish unions) and providing court’s with power to ensure personal liability for penalties, which will have unintended consequences for employers and managers found to a have contravened such laws. Hall Payne Lawyers are experts in the area of Industrial Relations. If you require assistance with any associated IR issue and want to achieve the best possible outcome, we can help. Please contact HPL Principal   Luke Tiley  (Brisbane), HPL Associate  Joseph Kennedy  (Sydney) , all available on  1800 659 114 . https://www.hallpayne.com.au/blog/rss/blog/2015/december/2015-industrial-relations-review-a-specialist-s-perspective/ Mon, 28 December 2015 00:00:00 Hall Payne Lawyers and the CFMEU have secured an important win, paving the way to improve how health assessments are conducted for injured coal mine workers. Our client was injured working at the Hail Creek Coal Mine, operated by Rio Tinto. He made a successful damages claim against Rio Tinto, which took into account that he continued working at the mine after being retrained as a drill rig operator. Under the Coal Mining Safety and Health Regulation 2001 (Qld) mine workers must have periodic health assessments. At an assessment on tin November 2013 our client’s injury was assessed as putting him at risk of being injured in the generic role of “operator”, and he was stood down. In early 2014 we challenged the health assessment in the Supreme Court of Queensland on the basis that our client should have been assessed for his usual job, drill rig operator, as he had been performing those specific duties since shortly after his injury. The health assessment was set aside. He was sent for a second health assessment. The Doctor initially found that, subject to a restriction requiring that he only operate the drill rig, our client was fit for the generic role of Operator. The Doctor was then contacted by Rio Tinto’s HR Manager, asking that our client be assessed for the full role of mobile equipment operator, which went beyond the duties of his role as drill rig operator. Subsequently, the Doctor issued an amended health assessment stating our client was unfit for the position. The member challenged the amended health assessment in the Supreme Court and was again successful in having it set aside. Rio Tinto appealed that decision to the Court of Appeal arguing that the amended health assessment was valid. In a unanimous decision, the Court of Appeal determined that the first September 2014 assessment was valid meaning that Mr Haylett was fit to perform the role of Operator subject to a restriction that he only operate the drill rig. The Court found that the Regulations required an assessment of the “task/s” that the worker is involved in, in accordance with the statutory form and covering the matters in the form. As the form contained information from our client’s doctor specifically referring to his employment in operating the drill rig, the assessing Doctor was required to consider that information in the assessment. Conversely, the information supplied by the HR Manager was not included in the form, and could not be considered. In bringing these proceedings, our client has successfully curbed Rio Tinto’s attempts to influence the way a Doctor may complete the form, setting a strong precedent for how health assessments are to take place under the Regulations. Employers who attempt to have employees assessed against duties they aren’t required to perform will have to think twice following this decision. If you require any assistance in relation to your right to work after an injury please do not hesitate to contact HPL Principal   Luke Tiley   and HPL Associate   Juliana Virine   on   1800 659 114 https://www.hallpayne.com.au/blog/rss/blog/2015/december/win-paves-the-way-for-improved-treatment-of-injured-coal-mine-workers/ Tue, 15 December 2015 00:00:00 Hall Payne Lawyers are thrilled to confirm another High Court win for Unions. Regular readers will recall that we have had recent success in the High Court for our union clients, for example in the original jurisdiction of the High Court, concerning the   Newman LNP Government’s attempt to decorporatise Queensland Rail by unconstitutional means. On 1 May 2015 a Full Court of the Federal Court of Australia handed down a judgment against our clients the CFMEU and the CEPU in   D,FWBII v CFMEU   [2015] FCAFC 59. In that judgment the Court held, amongst other things, that the principles enunciated by the High Court in   Barbaro v The Queen   [2014] 253 CLR 58, regarding criminal matters, also applied to civil penalty matters under the (now repealed)   Building Construction Industry Improvement Act 2005   (Cth). Our clients and the Commonwealth sought and obtained special leave to appeal the Full Court of the Federal Court judgment to the High Court. The appeal was heard by a Full Court of the High Court, comprising seven judges in the appellate jurisdiction, on 13 October 2015 at Canberra. The High Court has today handed down its decision upon the two appeals. The appeals were unanimously allowed by the High Court, in reasons spread across three separate judgments. The judgment of the High Court will ensure that the CFMEU and CEPU’s matter before the Federal Court is now dealt with according to law, without the application of   Barbaro v The Queen   [2014] 253 CLR 58. The judgment of the High Court reinforces our reputation as experienced High Court practitioners, representing our union clients. If you require assistance in relation to an existing or proposed High Court matter, in either the original or appellate jurisdiction, please contact HPL Principal,   Luke Tiley   on   1800 659 114 https://www.hallpayne.com.au/blog/rss/blog/2015/december/hpl-has-another-high-court-win-for-unions/ Wed, 09 December 2015 00:00:00 Hall Payne Lawyers have succeeded in assisting a CFMEU and CFMEUQ Organiser to apply for a Right of Entry Permit despite opposition from the Director of the Fair Work Building Industry Inspectorate. The Organiser had held entry permits for more than a decade. His most recent permit expired in April 2015, while he had, in error, assumed it remained valid until April 2016. He applied under s 512 of the Fair Work Act 2009 (Cth) for a new entry permit, which the Commission is empowered to issue if it is satisfied that the official is a fit and proper person to hold the entry permit. The Director submitted that the organiser ought to have conditions imposed on his permit as a consequence of the organiser’s oversight. The Director submitted conditions were necessary because the organiser had attended sites without an authorised copy of his permit, and had used his expired permit to enter a site. Vice President Hatcher accepted that this had been a mistake. He held that our client was a fit and proper person to hold an entry permit, and that discretion should be exercised in favour of him being issued with the permits applied for. Accepting our submissions, Hatcher VP rejected the unprecedented condition suggested by the Director, and approved the application with two small conditions applied to the permits, neither of which stepped outside of the bounds of legislative provisions already contained within the Fair Work Act 2009. With his newly issued Right of Entry Permit our client has been able to get back to work, exercising his right of entry in order to fight for the rights and conditions of workers. If you require any assistance in relation to right of entry please do not hesitate to contact HPL Principal  Luke Tiley  (Brisbane) on (07) 3017 2400, HPL Associate   Joseph Kennedy   (Sydney) on (02) 8338 8477 or HPL Associate   William Ash   (Tasmania) on   1800 659 114. https://www.hallpayne.com.au/blog/rss/blog/2015/december/cfmeu-and-cfmeuq-successful-with-right-of-entry-permit-despite-opposition/ Mon, 07 December 2015 00:00:00 Hall Payne Lawyers recently acted for the Communications, Electrical and Plumbing Union (CEPU) in relation to an application for a protected action ballot order, securing a rare costs win at the Fair Work Commission. The Employer, Tasmanian Railways (TasRail) opposed the Union’s application arguing that it was not genuinely trying to reach agreement because it was ‘surface bargaining’, the implication being that the CEPU didn’t want to reach agreement.. Following a hearing and after the Union’s closing submissions, TasRail withdrew their opposition to the application. Hall Payne Lawyers then made an application on behalf of the Union for costs. While civil litigation will usually see the unsuccessful party pay a portion of the winner’s costs, the Fair Work Act 2009 follows what has been long standing practice in industrial law, that generally a person will pay their own costs when appearing before the Fair Work Commission. One exception to this is found in s 611, which allows the commission to order a person to bear some or all of the costs of another person in relation to an application, or opposition to an application, if it has no reasonable prospects of success.. The Commission has historically been reluctant to award costs, with successful applications under s 611 being incredibly rare. Despite this, Hall Payne Lawyers were successful in obtaining costs from TasRail, with agreement to pay all of the CEPUs costs. The win on both fronts demonstrates the Hall Payne Lawyer’s commitment to protecting your rights, and our success in getting you the best results. If you require assistance with a protected action ballot order and want to achieve the best possible outcome, we can help. Please contact HPL Principal   Luke Tiley  (Brisbane), HPL Associate  Joseph Kennedy  (Sydney) or HPL Associate  William Ash  (Hobart), all available on  1800 659 114 . https://www.hallpayne.com.au/blog/rss/blog/2015/december/costs-win-at-the-fair-work-commission-in-protected-action-ballot-order/ Thu, 03 December 2015 00:00:00 When a Union, our client, suspected contravention of the   Fair Work Act 2009   (Cth) by the employer of some of its members we worked with them to enforce a right of entry and gain essential records for subsequent action. The union tried to obtain certain time and wages records from an employer pursuant to an order from the Fair Work Commission, but the Employer repeatedly refused to provide the requested records, alleging that the Union’s right of entry notices were not valid. Without obtaining these time and wages records through enforcement of the Right of Entry the Union could not investigate its suspicions. The following month HPL commenced litigation on behalf of the Union in the Federal Court of Australia, alleging a breach of the general protections provisions. The matter was listed for an urgent trial. Two days after the Union’s submissions and evidence were filed in the Court, the Employer agreed to promptly produce the requested documents, so that the proceeding could be discontinued. A large box containing the requested time and wages records were delivered to the Union shortly after and the litigation was discontinued by consent the next day. The outcome here reinforces that Union rights of entry are serious matters that must be enforced. As a result of our expertise and prompt action, the Union was able to obtain the necessary documentation so as to continue its investigation and, it is hoped, commence relevant civil penalty litigation. If you require assistance with a right of entry or any associated matter from HPL please contact HPL Principal   Luke Tiley  (Brisbane), HPL Associate  Joseph Kennedy  (Sydney) or HPL Associate  William Ash  (Hobart), all available on Free Call 1800 659 114. https://www.hallpayne.com.au/blog/rss/blog/2015/november/rogue-employer-gives-up-documents-as-union-enforce-right-of-entry/ Fri, 13 November 2015 00:00:00 In December last year our client entered into a Deed of Settlement with his former employer to settle a claim regarding unfair dismissal. The Deed included mutual terms as to non-disparagement and confidentiality. On 1 October 2015 our client applied for, and was successful in gaining, new employment. The next day he received an email confirming his employment would commence shortly. Less than a week later the new employer advised our client that his employment would not proceed, at the behest of the former employer. Our client suspected that this communication between the former employer and the new employer was a breach of the deed and sought assistance from HPL. We wrote to the both the former and new employer on behalf of our client, alleging that there had been a breach of the deed. Our correspondence went on to seek certain documents by way of pre-litigation disclosure, so as to ascertain the precise details of the former employer’s breach of the deed. The correspondence threatened an application to the Court for pre-litigation disclosure if those documents were not provided. Shortly after, the new employer responded to our correspondence by re-opening its offer of employment. The offer was accepted by our client and he commenced his new employment on 3 November 2015. Importantly, the offer of employment with the new employer was made and accepted without our client being required to compromise his rights against either of these organisations. The result in this matter shows the benefit of thinking strategically – the use of pre-litigation discovery meant our client was able to enforce his rights under the deed in order to get the best possible outcome. It also means that, if necessary, our client can still pursue the former employer for breach of the deed. HPL is experienced in the art of pre-litigation discovery and, in particular, its use in employment and industrial matters. If you should require assistance about such matters, please contact HPL Principal  Luke Tiley  (Brisbane), HPL Associate  Joseph Kennedy  (Sydney) or HPL Associate  William Ash (Hobart), all available on Free Call 1800 659 114. https://www.hallpayne.com.au/blog/rss/blog/2015/november/pre-litigation-discovery-gets-train-driver-back-on-track/ Thu, 12 November 2015 00:00:00 n 2014 the CFMEU Mining and Energy Division Union became aware that some of its members at the Hail Creek Coal Mine had been denied paid sick leave entitlements by their employer, Hail Creek Coal Pty Ltd. The Union subsequently commenced proceedings against Hail Creek in the Federal Court alleging Hail Creek had breached the Hail Creek Agreement 2011. Hail Creek argued that the sick leave clause of the Agreement only entitled the employees to the National Employment Standards minimum of 10 days per annum and that the employees were not entitled to be paid sick leave because they had used all of their NES entitlement. The Union argued the clause properly interpreted meant that employees were entitled to be paid for sick leave up to three months in one period after which time, any entitlement to sick leave would be at the discretion of the employee’s manager. The Court decided to proceed by way of determining whether the Union’s interpretation of the clause or the Mine’s interpretation of the clause was correct before turning to the question of whether the Agreement had been breached by Hail Creek. On 20 May 2015, His Honour Justice Logan decided in favour of Hail Creek that the clause provided for employees to be paid sick leave only for the period prescribed by the NES entitlement and that all sick leave in excess of that amount was at the manager’s discretion. The Union appealed Justice Logan’s judgment to the Full Federal Court. In the appeal, the Union submitted to the Full Court that the surrounding circumstances of the Union and Hail Creek negotiating the clause and the common intention of the parties was not taken into account in the first instance judgment. On 23 October 2015 the Full Court handed down its unanimous judgment in the Union’s appeal finding that the sentence of the Agreement which provided “Employees, other than casuals, have access to paid sick leave on Total Salary when they are unable to work due to illness or injury” did not confer a discretion on the employee’s manager and entitles employees other than casuals to be absent from work and paid for the period of the leave. In reaching their decision, the Full Court gave consideration to the earlier iterations of the Agreement, most notably the 2003 Agreement which contained a sick leave clause in almost identical terms to the 2011 Agreement. On analysing the 2003 Agreement clause and the then legislative framework, their Honours found the clause provided for an entitlement to sick leave that was not merely discretionary reasoning the replacement of the 2003 Agreement with the subsequent 2007 and 2011 Agreements in virtually the same terms in respect of sick leave meant “the consistency of terminology points strongly to the conclusion, that no change in meaning, and certainly no change in the diminution of employee entitlements, was intended as the parties moved from one agreement to the next.” Hall Payne Lawyers represented the Union in both the first instance and appeal proceedings. The decision is a vindication of the superior sick leave entitlements fought for by the Union and shows the importance of being a union member. If you require any assistance in relation to entitlements and enterprise agreements please do not hesitate to contact HPL Principal  Luke Tiley  (Brisbane), HPL Associate   Joseph Kennedy   (Sydney) or HPL Associate   William Ash   (Hobart), all available on Free Call 1800 659 114. https://www.hallpayne.com.au/blog/rss/blog/2015/november/sick-leave-entitlements-won-for-cfmeu/ Mon, 02 November 2015 00:00:00 Hall Payne Lawyers successfully applied for an injunction on behalf of a Tasmanian union against a mining services company, standing up against employer tactics to influence a vote. The union and the mining services company, Barminco Limited (“Barminco”), had commenced negotiations to replace an enterprise agreement covering two mines in western Tasmania. Barminco stated to the union that it needed to cut its costs and that employees would all need to take a pay cut. Barminco put a proposed enterprise agreement out to ballot that contained pay cuts of 5% of all employees. Barminco held information sessions with it’s employees which included a Slide Show with a slide threating employees that if they voted ‘no’ to the proposed enterprise agreement, Barminco would unilaterally cut employees pay by an average of 10%. The union instructed Hall Payne Lawyers to commence proceedings in the Federal Circuit Court of Australia alleging that Barminco had breached Part 3-1 of the Fair Work Act 2009, and to seek an injunction to restrain Barminco from following through with their threat in the event that the employees voted ‘no’. Barminco gave an undertaking to the Court in the form of the orders sought by the union. The undertaking from Barminco was that the employee’s existing legal entitlements would remain, irrespective of a no vote. Barminco were ordered to give a copy of the undertaking to each employee before they voted on the proposed enterprise agreement, making sure that all employees new there was no threat to their pay as they went in to vote. The proposed enterprise agreement with 5% pay cuts was voted down and the employees have not had their pay cut. Negotiations continue, with this result showing the importance of standing up against employer tactics intended to influence employees to vote in favour of their preferred bargaining outcomes. If you require any assistance in relation to asserting the rights of your enterprise agreement do not hesitate to contact HPL Principal  Luke Tiley  (Brisbane), HPL Associate   Joseph Kennedy   (Sydney) or HPL Associate   William Ash   (Tasmania) on   1800 659 114 . https://www.hallpayne.com.au/blog/rss/blog/2015/november/standing-up-against-employer-tactics-awu-v-barminco/ Mon, 02 November 2015 00:00:00 Seven Tasmanian unions – the CEPU, AMWU, CFMEU, AWU, CPSU, Professionals Australia and the ASU had been negotiating with the Tasmanian Water and Sewerage Corporation (TasWater) since around April 2014 to replace three regionally based enterprise agreements.  TasWater was created in mid 2013 through consolidating three regional water corporations, inheriting their enterprise agreements. TasWater proposed a single state-wide enterprise agreement to replace the three regional agreements. By the end of 2014, it became apparent that the negotiations were not progressing efficiently due to difficulties associated with consolidating differing terms and conditions contained in the three regional agreements. Hall Payne Lawyers filed an application for a scope order on behalf of the CEPU with the support of the others unions. The application was opposed by TasWater. On 25 June 2015 the Fair Work Commission handed down a decision in favour of the unions, ordering TasWater to re-negotiate the three regional agreements. TasWater appealed the decision. Immediately following the hearing on 13 August 2015, The Full Bench of the Fair Work Commission did not grant permission for TasWater to appeal, finding that no appealable errors had been identified. TasWater were encouraged by the Full Bench to continue their negotiations to replace the three regional enterprise agreements. Negotiations continue, and the CEPU and other unions are confident that agreement will be reached in the near future. The scope of an enterprise agreement can affect a party’s bargaining position. This is a reminder that unions do not automatically have to accept the employer’s proposed scope of an enterprise agreement and can argue for what works for their members. If you require any assistance in relation to scope orders please do not hesitate to contact HPL Principal  Luke Tiley  (Brisbane), HPL Associate  Joseph Kennedy  (Sydney) or HPL Associate  William Ash  (Hobart), all available on Free Call  1800 659 114 . https://www.hallpayne.com.au/blog/rss/blog/2015/october/scope-order-win-for-tasmanian-unions-against-taswater/ Thu, 29 October 2015 00:00:00 On 13 April 2015 the Queensland Secretary of the CFMEU Construction retained his right of entry permit, thanks to Hall Payne Lawyers [see   related article ]. On 4 May 2015 the Director of the Fair Work Building Industry Inspectorate (FWBC) appealed the decision (the Decision) of the Fair Work Commission to a Full Bench of the Fair Work Commission (the Full Bench). The FWBC alleged 5 errors in the Decision and sought that it be overturned on appeal. The CFMEU, represented by HPL, defended the appeal. Specifically, before the Full Bench on 8 July 2015, we argued that there were no errors in the Decision and that the FWBC’s submissions were exaggerated, unhelpful and offensive. The Full Bench agreed with HPL and the CFMEU. On 9 October 2015 the Full Bench   dismissed the appeal , observing that the appeal process is not intended to provide an avenue for an unsuccessful party to re-run  their  case  or  redress  deficiencies  in  the  manner  in  which  their  case  was  run  at  first instance. Further, the Full Bench accepted our submission for the CFMEU, that the FWBC’s appeal grounds were riddled with unsubstantiated  hyperbole. As the appeal is dismissed the Secretary continues to hold his right of entry permit. It is hoped that this litigation is now at an end so that the Secretary can continue to carry out his important duties including exercising right of entry pursuant to the   Fair Work Act 2009   (Cth). If you require any assistance in relation to right of entry please do not hesitate to contact HPL Principal  Luke Tiley  (Brisbane) on (07) 3017 2400, HPL Associate   Joseph Kennedy   (Sydney) on (02) 8338 8477 or HPL Associate   William Ash   (Tasmania) on ( 03) 6108 9127 . https://www.hallpayne.com.au/blog/rss/blog/2015/october/cfmeu-retain-right-of-entry-permit-as-the-full-bench-of-the-fair-work-commission-rejects-appeal/ Sun, 25 October 2015 00:00:00 The   Fair Work Act 2009   (FW Act) entitles officers or employees of registered unions to enter workplaces during working hours as long as a permit is obtained to do so and subject to a number of conditions. The   Work Health and Safety (National Uniform Legislation) Act 2011   (WHS Act) provides a right of entry to inquire into a suspected contravention of that Act. On 6 September 2015 a CEPU member raised safety concerns relating to the site at the Ichthys On-shore Construction Project at Blaydin Point (the Project). The following morning several officials of our client, the CEPU, went to the Project site to inquire into suspected safety contraventions of the WHS Act. It is alleged that over the course of the next week our client’s officials were refused, unduly delayed, hindered and obstructed as they tried to conduct investigations into the safety issues on the Project site, as was their lawful right. It is alleged that similar conduct was repeated by JKC and its representatives in the week of 21 to 25 September 2015. In a decision handed down last week, Hall Payne Lawyers (HPL) obtained a number of injunctions against JKC Australia LNG Pty Ltd (JKC) in respect of right of entry at the Project. The orders represent the second time the Federal Court has made urgent orders protecting the rights of CEPU officials exercising a right of entry at the Project. On 15 September 2015, HPL filed an originating application in the Federal Court on behalf of the CEPU, alleging that JKC and two individuals had contravened the FW Act.  The matter was first set down for an urgent hearing on 18 September 2015, at the end of which Justice White of the Federal Court   made orders and issued a decision . A further interlocutory application was filed by HPL, in relation to the alleged new contraventions of the FW Act in the week of 21 to 25 September 2015, which was set down for an urgent hearing on 8 October 2015. In that hearing HPL sought a number of orders, all seeking to protect the rights of CEPU officials exercising a right of entry to inquire into suspected contraventions of the WHS Act. Prior to the hearing HPL secured an undertaking from JKC to allow CEPU officials access to certain parts of the Project which had been previously refused. Lawyers for JKC however opposed the remainder of the orders sought. At the end of the hearing on 8 October 2015 the Court made   two further injunctive orders in favour of the CEPU. These proceedings demonstrate the value of urgent strategic litigation to obtain interlocutory orders protecting the legal rights of union official permit holders, including in relation to right of entry, and the importance of enforcing legal rights under industrial and safety legislation. If you require any assistance in relation to right of entry please do not hesitate to contact HPL Principal  Luke Tiley  (Brisbane), HPL Principal   Joseph Kennedy   (Sydney) or HPL Hobart office. https://www.hallpayne.com.au/blog/rss/blog/2015/october/hpl-wins-for-cepu-in-right-of-entry-matter/ Mon, 12 October 2015 00:00:00 Imagine being in a meeting and being secretly photographed by your boss, with photos of your cleavage joining a library of over 10,000 lewd images on his work laptop. The last thing you’d expect would be for management to have known about this and let it happen, and for your supervisors to discourage and deflect your concerns. When exactly this happened to our client, a project manager at the State Library of Queensland, she suffered psychiatric injury. Her claim was originally accepted by WorkCover Queensland but the employer appealed to the Workers’ Compensation Regulator and the claim was rejected on the basis that the injury was excluded by the Act because the employer had taken reasonable management action in a reasonable way. The focus of that decision was on the reasonableness or otherwise of how management had informed her of the photographs being taken. It completely ignored the fact that the photographs had been taken. We appealed that decision to the Queensland Industrial Relations Commission and the appeal was rejected on the basis that the injury did not arise out of our client’s employment. The Commission found that her workplace was merely the setting in which the events took place. We appealed that decision to the Industrial Court and, on 8 October 2015, Martin J upheld our appeal, finding: The injury was sustained in the course of her employment; Her employment was a significant contributing factor to the development of her condition; The management action, viewed in a global way, was not reasonable. The Commissioner was scathing of the earlier decision, finding that it was “infected with error.” This decision brings a protracted process for our client to an end, after an earlier appeal from the State Library of Queensland extended this matter to a two-year battle. It restores a common sense understanding of a workplace complaint being one that arises in the workplace involving workers. While this matter has concluded, its end coincides with an official investigation into the State Library of Queensland’s handling of the matter. On September 12 the Queensland Minister for Science and Innovation, Leanne Enoch, established an independent review into the way these allegations were handled by the Library. Headed by Queensland’s former public service commissioner, Rachel Hunter, findings of that investigation are due by the end of this month. If you suffer an injury or illness that impacts your ability to work then contact our Senior Associate  Cale Fryer   or our Principal   Linda Brangan   on (07) 3017 2400 or complete an   online inquiry form . https://www.hallpayne.com.au/blog/rss/blog/2015/october/lewd-photo-ruled-workplace-complaint/ Fri, 09 October 2015 00:00:00 Hall Payne Lawyers (“HPL”) recently acted for a grader driver (“John”) who sustained injuries to his lower back over time whilst working 12 hour shifts on an 11 day on 3 day off roster. The cause of John’s injury was attributed to repeated exposure to whole body vibration during the years he spent working long shifts as a grader driver with limited to no rotation of his duties. John’s employment had been terminated as a result of the work injury and he was experiencing significant financial hardship. The workers’ compensation insurer (“the insurer”) rejected John’s application for compensation alleging his employment did not cause the injury. On Behalf of John, HPL lodged an Application for Review of the insurer’s decision with the Workers’ Compensation Regulator. The review was successful however the employer appealed the Regulator’s decision to the Qld Industrial Relations Commission. In the weeks leading up to the hearing, the Employer finally conceded the Appeal accepting John’s injury was work related. This win meant that John now had an entitlement to compensation for his work related injury and he could now access common law damages. On behalf of John, HPL commenced a claim for damages however, as part of John’s injury had been sustained outside the 3 year limitation period that applies to a claim for damages at common law, the matter was not without its difficulties. Despite these considerable hurdles, Hall Payne Lawyers   was successful in extending the limitation period which allowed the claim to proceed at common law. The defendant strongly denied liability in the claim stating they had taken all necessary steps to manage the risk of injury. The matter proceeded through the pre-court process but failed to resolve after two separate attempts at settlement negotiations. As the matter could not be resolved in the pre court process, HPL commenced proceedings in the Supreme Court of Qld on behalf of John. In the lead up to trial, the defendant finally made an offer that was sufficient to compensate John for his past and future losses of income, pain and suffering, superannuation and medical expenses. On the advice of HPL, John settled his claim for damages. He was very happy with the outcome and relieved he could achieve such a good result without having to proceed to Court. John’s case is important in that the defendant finally acknowledged that plant operators faced a foreseeable risk of injury when working long hours over rough and uneven terrain. As a result of John’s case, the defendant introduced a new Zero Harm policy to manage the risk of plant operators sustaining injuries as a result of repetitive exposure to whole body vibration in circumstances similar to John’s. If you suffer an injury or illness that impacts your ability to work then contact our Senior Associate   Cale Fryer   or our Principal   Linda Brangan   on (07) 3017 2400 or complete an   online inquiry form . https://www.hallpayne.com.au/blog/rss/blog/2015/october/hall-payne-lawyers-win-workplace-injury-claim-for-grader-driver/ Tue, 06 October 2015 00:00:00 This year members of our team conquered the Bridge to Brisbane and had a blast doing it!   From L to R: Tully Stanley, Simon Hall, Cameron Hall, Annette Brander, Melissa Sharp & Krystal Savage. Also in the team but not pictured were Charles Massy & Ian Kelly. https://www.hallpayne.com.au/blog/rss/blog/2015/august/bridge-to-brisbane-2015/ Mon, 31 August 2015 00:00:00 On 4 September 2014 an Organiser employed by the Construction, Forestry, Mining and Energy Union was charged with one count of trespass. The charge arose out of an allegation that the official had trespassed onto a construction site in Toowoomba. The official denied that his entry was unlawful. Hall Payne Lawyers successfully argued on behalf of the official that there was insufficient evidence to make out the summary offence. HPL argued that on the evidence the entry appeared to have been pursuant to the Work Health and Safety Act 2011 (Qld). Hall Payne also argued that the official had been invited onto the site previously and therefore had a licence, or similar, to enter the site. As a result of our submissions, the Queensland Police Service withdrew the charge against the official. The success in this matter is another example of Hall Payne’s industrial knowledge being used to successfully defend criminal charges in relation to industrial disputation, when raised by employers and employer representatives. If you require any assistance in relation to police intervention in an industrial matter please do not hesitate to contact our Principal   Luke Tiley   on (07) 3017 2400. https://www.hallpayne.com.au/blog/rss/blog/2015/august/hall-payne-and-the-cfmeu-win-on-right-of-entry-matter/ Sat, 15 August 2015 00:00:00 Hall Payne Lawyers (HPL), acting for the CFMEU and CEPU, has successfully appealed a section 418 order of the Fair Work Commission (FWC). In late June 2015 there had been some issues with the use of a hazardous substance known as perlite at Bechtel’s Curtis Island site. Our clients’ members were understandably concerned about this issue. On the afternoon of 29 June 2015 our clients were served with a s.418 application on behalf of the relevant employer (Bechtel). The matter was listed for hearing at 2.30pm the following day (30 June 2015). At 1.50pm on 30 June 2015 our clients were served with the Applicant’s evidence in the matter. The matter was then called on before the FWC at 2.30pm before DP Lawrence. It was not in dispute that, at the time of the hearing, there was no industrial action happening. During the course of the hearing, our clients sought adjournment(s) to take instructions and to consider the filed material, however this was not granted. At the conclusion of the hearing DP Lawrence found that there were sufficient grounds to make a s.418 order. He then issued an order that required that the unions (our clients and the AMWU) and the relevant employees, must stop, not engage in and not organise industrial action. The basis of this finding by DP Lawrence was said to be a threat made by an AMWU delegate to management. The CFMEU and the CEPU appealed the order on the basis of 3 alleged jurisdictional errors and the fact that there was no rational connection between the evidence and the length of the order (3 months), and there were no adequate reasons provided for an order of that length. Our clients’ appeals were lodged on 14 July 2015 and listed for an expedited hearing on 31 July 2015. On 22 July 2015 the AMWU also filed an appeal, relying on substantially the same grounds as our client’s appeal, with the addition of a procedural fairness ground founded upon evidence of their industrial officer. The CFMEU and CEPU later added a procedural fairness appeal ground based on the evidence of the AMWU industrial officer. At the commencement of the hearing counsel for Bechtel made concessions, the effect of which was that the original appeal grounds of the CFMEU and CEPU were established. The parties went on to argue the procedural fairness ground including by hearing evidence of the AMWU industrial officer. The Full Bench did not require any submissions from the representatives of the unions. The Full Bench quashed the order of Deputy President Lawrence due to the denial of procedural fairness and the fact that in any event “the Deputy President could not have formed the view that industrial action was being organised by at least two of the organisations”. Hall Payne Lawyers has extensive experience in dealing with urgent applications regarding stoppages of work. In particular HPL acted for the CEPU in the landmark procedural fairness case CEPU v Abigroup [2013] FCAFC 148. If you require advice about such matters in Brisbane please contact our Principal   Luke Tiley   on (07) 3017 2400 or in Sydney our Associate   Joe Kennedy   on on (02) 8338 8477. https://www.hallpayne.com.au/blog/rss/blog/2015/august/cfmeu-and-cepu-quash-bechtel-industrial-action-orders/ Sat, 01 August 2015 00:00:00 In January 2015 the Queensland Branch of the Electrical Division of the Communications, Electrical and Plumbing Union, the CEPU (the Union), applied to the Fair Work Commission (the Commission) to renew the right of entry permits of two of its longstanding officials pursuant to the Fair Work Act 2009 (Cth) (the Act). The application was made on the basis that the officials were a fit and proper people to hold permits pursuant to the Act. The Director of the Fair Work Building Industry Inspectorate (the FWBC) intervened in the matter to make submissions. The FWBC argued that a new permit should not be granted to the officials or alternatively any new permits should be issued subject to certain conditions. Hall Payne Lawyers (HPL) argued on behalf of the Union that the officials were fit and proper people, had disclosed all relevant matters and had received appropriate training regarding right of entry. On 20 July 2015 the Commission granted the application, renewing the permits of the officials without the imposition of conditions. The Commission rejected the FWBC’s submission that there was no evidence that the ACTU right of entry training was adequate training, pointing out that the training was approved by a delegate of the Commission. The Commission observed that both officials had held right of entry permits for some time, without revocation. The Commission noted that even though both officials had committed some transgressions, these were isolated incidents which did not effect the assessment of their character so as to render them not fit and proper people. The decision is an important victory for the officials and the Union; it enables the officials to continue to carry out their important duties including by exercising right of entry pursuant to the Act. If you require any assistance in relation to right of entry please do not hesitate to contact HPL Principals   Luke Tiley   or   Charles Massy   on (07) 3017 2400. https://www.hallpayne.com.au/blog/rss/blog/2015/july/hall-payne-and-the-electrical-division-of-the-cepu-win-on-entry-permits/ Tue, 28 July 2015 00:00:00 In Construction, Forestry, Mining and Energy Union v CSR Limited T/A Viridian New World Glass [2015] FWCFB 3889 and [2015] FWCFB 4624 a Full Bench of the Fair Work Commission has over turned the approval of two enterprise agreements. On 19 January 2015 SDP Richards approved two agreements purportedly made by CSR Limited in Cairns and Townsville. Each agreement contained a clause referring to the draft Building and Construction Industry (Fair and Lawful Building Sites) Code 2014 (the “Draft Building Code”). Each of the relevant clauses provided that the agreements were intended to satisfy the Draft Building Code and that any part of the Award, which had been called up in the Agreements, was inconsistent with the Draft Building Code, as varied from time to time, that part of the Award would cease to be part of the Agreements. The Construction, Forestry, Mining and Energy Union (the Union), appealed the approval decisions on the basis that: those agreements were not sufficiently certain so as to enable an assessment as to whether they passed the BOOT; and the employer could not have complied with the pre approval steps of explaining the likely effect of the Agreements to the employees, where the likely effect of the Draft Building Code, as varied from time to time, was indeterminate. CSR submitted that the Union was not a person aggrieved by the decision to grant the approval of the agreements, relying on Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Ltd (Collinsville). The CFMEU argued that Collinsville should be distinguished open the basis that Collinsville was concerned with whether a Union had a right to be heard as opposed to they were a person aggrieved. The Full Bench agreed that the CFMEU was a person aggrieved and had standing to appeal. The Full Bench went on to hold that the inclusion of references to the Draft Building Code, not yet passed by parliament at the time of the decision, rendered the Agreement so uncertain that a proper assessment as to whether those agreements passed the BOOT could be undertaken. The Full Bench also found that there was insufficient evidence to find that the employer had complied with the pre-approval steps by explaining the likely effect of the agreements to the employees. The Full Bench decisions are available   here  and   here . Hall Payne Lawyers has considerable experience in dealing with bargaining and agreement approval matters. If you require any assistance in relation to these matters please do not hesitate to contact Charles Massy on (07) 3017 2400. https://www.hallpayne.com.au/blog/rss/blog/2015/july/construction-forestry-mining-and-energy-union-v-csr-limited-ta-viridian-new-world-glass-2015-fwcfb-3889-and-2015-fwcfb-4624/ Mon, 27 July 2015 00:00:00 On 15 June 2015 Hall Payne Lawyers obtained a consent order at the Fair Work Commission for the reinstatement of Leading Firefighter Paul Rubie to his position with the Northern Territory Fire and Rescue Service. Mr Rubie had been terminated for posting a Facebook comment outside of work hours. The reinstatement followed a lengthy process involving Mr Rubie challenging his dismissal by making an unfair dismissal claim to the Fair Work Commission seeking reinstatement. Joseph Kennedy, an Associate with our Sydney office, along with United Voice (Mr Rubie’s union) represented Mr Rubie throughout his matter. Hall Payne Lawyers contended that the termination was unfair on several bases. These included that there was no valid reason for the termination, that Mr Rubie had been subjected to differential treatment compared to other employees and that the termination was manifestly harsh. The matter was set down for a two day contested hearing in Darwin. On the morning of the hearing prior to it commencing, the employer offered Mr Rubie reinstatement back to his previous position, with some conditions. This was agreed to by Mr Rubie and a consent order was made by the Commission without the matter needing to proceed to hearing or any evidence being heard. You can read the relevant consent order   here . The outcome in this matter reinforces the importance of union membership for workers in the Northern Territory. United Voice and Hall Payne Lawyers both have significant experience in dealing with unfair dismissals, both in the Northern Territory and throughout Australia, and have a proven track record of obtaining positive outcomes for employees. It is absolutely vital that unions and employees act quickly in the event of an unfair dismissal.   Pictured front row (from the left) HPL Solicitor James Burke, HPL Associate Joseph Kennedy, United Voice Branch Secretary Erina Early and Paul Rubie, along with other United Voice members. https://www.hallpayne.com.au/blog/rss/blog/2015/june/nt-fire-service-employee-reinstated/ Tue, 23 June 2015 00:00:00 The Northern Territory Police, Fire and Emergency Services (NTPFES) purported to demote a senior officer (the “Appellant”) on the basis of multiple breaches of the Northern Territory Public Sector Employment and Management Act (the “NT PSEMA”). In a historic win for the Appellant, the NT Public Sector Appeals Board (the “Board”) set aside the decision, the findings on which it was based, and re-instated him to his substantive position. United Voice (UV) and James Burke of Hall Payne Lawyers (HPL) acted for the Appellant. The first breach related to a single incident involving the Appellant and a superior officer. This led the NTPFES to suspend the Appellant and the Appellant to lodge a grievance against the superior. The NTPFES then engaged an independent investigator who compiled a lengthy report. The report was lengthy and seemingly comprehensive. However, from the outset, the appellant disputed many of the “findings of fact” in the report. These complaints were never addressed. The report’s findings led the CEO, NTPFES to allege and ultimately find even more breaches of the NT PSEMA. These additional findings were based solely on the report’s findings that included that the Appellant routinely questioned directives, was querulous with the superior and made derogatory comments about the NT Fire and Rescue Service. A Disciplinary Appeal was made to the NT Public Sector Appeals Board (the “Board”). Submissions were made on the papers without the need to appear or call witnesses. The Appellant submitted statements from 3 subordinate officers within the Appellant’s command. The Respondent did not provide any additional evidence. The Appellant argued that the CEO’s decision had to meet the test in Briginshaw v. Briginshaw. He argued that the CEO’s decision was so reliant on the investigator’s report that if it failed the Briginshaw test so did the CEO’s decision. The Appellant submitted that the report was riddled with “inexact proofs, indefinite testimony or indirect references”. The board agreed. The Appellant argued that in a career spanning almost 30 years, the Appellant’s personal record did not contain a single reprimand, complaint or negative comment. For much of the period where he was alleged to have been disparaging of management and the service generally, he was not in fact present. The allegations were all general and did not make any reference to specific incidents even by way of example. The Respondent submitted that “…the CEO relied on evidence in the investigation report and ‘staff comments’ made by unidentified witnesses interviewed by the investigator”. The Board found, “…neither of these sources are sufficient evidence for the CEO…”. The Board preferred every one of the Appellant’s substantive submissions and attached them to its decision. The Board’s decision reinforces the importance of union membership for workers in the Northern Territory. UV and HPL both have significant experience in dealing with public sector disciplinary matters, in the Northern Territory and elsewhere. If you have any queries in relation to this matter please contact James Burke of HPL on (08) 8942 0384. https://www.hallpayne.com.au/blog/rss/blog/2015/june/failure-of-investigation-fatal-to-disciplinary-action/ Wed, 17 June 2015 00:00:00 May Day 2015 in Darwin was a huge success and Hall Payne are delighted to have been the major sponsor. John Payne joined James Burke for a full weekend of activity. 2015 is the 100th birthday of the Electrical Trades Union, Northern Territory/Queensland Branch (ETU) and ETU members were out in force and headed up the march from outside 38 Wood Street (aka Union Central) to the Esplanade. Peter Ong, ETU NT/Qld Branch Assistant Secretary and Paul Kirby, NT Organiser expertly marshalled their members, all wearing specially printed ETU t-shirts commemorating the 100 year history of the Union. The CFMEU also had a large contingent who marched in hi-vis orange May Day shirts. Michael Ravbar, Secretary of the CFMEU NT/Qld Branch lead the large and loud contingent. The turnout was historic and impressive, for as one long term CFMEU member said, “I remember when only two of us marched under the CFMEU banner”. Those days are now behind the NT unionists with it being reported that over 1000 people marched in 2015. John Payne gave a short (welcomed from a lawyer) speech to the gathered crowd at the waterfront park, and congratulated them on their fantastic turn-out for which they could be deservedly proud. Nova Peris OAM, Senator for the Northern Territory addressed the crowd at the end of the march. She recognised the struggles of unionists and the importance of collectivism. She deplored the attacks on workers by the NT Government with its present amendments to the Workers’ Rehabilitation and Compensation Act and the Abbott government’s prospective budget that will secure even more of the country’s wealth for those who need it least at the expense of those who need it most. The crowd was entertained by a blues band supported by Hall Payne Lawyers and a jolly time was had by all. https://www.hallpayne.com.au/blog/rss/blog/2015/may/may-day-2015-in-the-northern-territory/ Tue, 05 May 2015 00:00:00 On Friday 17 April 2015, writer and comedian Catherine Deveny launched the Hall Payne Lawyers Women’s Law Group at the Fox Hotel with all proceeds from the night going to Women’s House, a feminist community organisation that works with women who have experienced violence. Hall Payne Lawyers is proud that many of its practitioners have decided that they have a role to play in the advancement of women in our community and profession. The Women’s Law Group of Hall Payne Lawyers exists to: In our Community advance the status of women in the wider community; support the role of women in the trade unions whose members we represent; support the role of women in employment and industry through providing effective legal representation; support external women’s groups. In our Profession advance the status of women in the legal profession; support the role of women in the legal profession; provide a forum to discuss and respond to particular issues women may face, or experience, in the legal profession; specifically address industrial relations concerns for women in law such as flexibility and paid parental leave. The night was a fantastic celebration of the great work women do in the trade union movement and community sector and gave the women who attended a chance to connect with other organisations. The Women’s Law Group looks forward to working with the attendees in the coming year to improve the lives of women in the union movement and broader community. https://www.hallpayne.com.au/blog/rss/blog/2015/april/launch-of-the-hall-payne-lawyers-women-s-law-group/ Tue, 21 April 2015 00:00:00 In June 2014 the Queensland Branch of the construction union, the CFMEU (the Union), applied to the Fair Work Commission (the Commission) to renew the right of entry permit of its Secretary Mr Michael Ravbar (the Secretary) pursuant to the Fair Work Act 2009 (Cth) (the Act). The application was made on the basis that the Secretary was a fit and proper person to hold a permit pursuant to the Act. In July 2013 the Director of the Fair Work Building Industry Inspectorate (the FWBC) intervened in the matter to make submissions, purportedly in the public interest. The FWBC argued that a new permit should not be granted to the Secretary. Hall Payne Lawyers (HPL) argued on behalf of the Union that the Secretary was a fit and proper person, had disclosed all relevant matters and had received appropriate training regarding right of entry. Further, HPL argued that the statutory test for the holding of a right of entry permit was about personal fitness and as such the record of the Union was not relevant to the permit of the Secretary. In doing so we relied upon an earlier matter which we won for the Union before a Full Bench of the Commission regarding the permit of Mr Tong Kong (DFWBII V. CFMEU [2014] FWCFB 5947 which is located   here ). On 13 April 2015 the Commission granted the application, renewing the permit of the Secretary. It rejected the FWBC application that conditions be imposed on the permit, on the basis that conditions would not be appropriate or useful. The Commission observed that the Secretary had a relatively clean record for someone involved in the conflict ridden construction industry and had never been found to have contravened any right of entry laws. The decision is an important victory for the Secretary and the Union; it enables the Secretary to continue to carry out his important duties including by exercising right of entry pursuant to the Act. The decision further reinforces the abovementioned victory by HPL for the Union in September 2014 before a Full Bench of the Commission. If you require any assistance in relation to right of entry please do not hesitate to contact HPL Principals   Luke Tiley   or   Charles Massy   on (07) 3017 2400. https://www.hallpayne.com.au/blog/rss/blog/2015/april/queensland-secretary-of-cfmeu-construction-retains-right-of-entry-permit/ Thu, 16 April 2015 00:00:00 Today the High Court unanimously held that Queensland Rail is a Constitutional Corporation and as such is covered by the Fair Work Act 2009 (Cth). HaIn 2013 the then Newman Government passed the Queensland Rail Transit Authority Act 2012 (Qld). The QRTA Act had the effect of transferring all employees of the Government Owned Corporation, Queensland Rail, to the Queensland Rail Transit Authority. The QRTA, which was subsequently renamed Queensland Rail, acts a labour hire company and supply labour to Queensland Rail Limited for the purposes of operating Queensland public rail network. The QRTA Act provides that the QRTA had all of the powers of individual, including the power to sue and be sued in its own name. However, the QRTA Act provided by s. 6(2) that the QRTA was not a body corporate. The QRTA Act also provides that the Industrial Relations Act 1999 (Qld) applied to the employment of all QRTA employees. One of the significant effects of the QRTA Act was to take all of the employees out of the Federal industrial relations jurisdiction and to make those employees subject to the Queensland industrial relations system. This meant the provisions in existing enterprise agreements which provided for job security, no forced redundancy and consultation were of no effect. On 11 November 2013 Hall Payne Lawyers, acting on behalf of the the five rail unions (ETU, ASU, AMWU, AFULE and RTBU) commenced proceedings in the original jurisdiction of the High Court of Australia alleging that the QRTA was, notwithstanding s. 6 (2), a trading corporation within the meaning of the Constitution and that the Fair Work Act 2009 (Cth) applied to all of the QRTA’s employees. On 8 April 2015 the High Court found that there were no reasons to read ss. 51(xx) of the Constitution as only applying to some classes of artificial legal persons. The Court unanimously found that the QRTA had the full character of a corporation and therefore was a trading corporation within the meaning of the Constitution. This meant that the QRTA was subject to the Fair Work Act 2009 (Cth) and that, by virtue of s. 109 of the Constitution, ss 69, 72 and 73 of the QRTA Act and ss 691A-691D of the Industrial Relations Act 1999 (Qld) are invalid in so far as they apply to employees of the QRTA. The effect of the Court’s decision is that the previous government’s attempt to transfer the employees out of the Federal industrial relations jurisdiction into the Queensland system and to thereby reduce their terms and conditions failed. The Court ordered that QR pay the unions’ costs. Hall Payne Lawyers has significant experience in running substantial and strategic litigation for unions and their members. Should you require advice please contact   Charles Massy   on (07) 3017 2400. https://www.hallpayne.com.au/blog/rss/blog/2015/april/high-court-holds-that-queensland-rail-is-subject-to-the-fair-work-act-2009-cth/ Wed, 08 April 2015 00:00:00 On 20 May 2014 Hall Payne Lawyers obtained an interlocutory order from the Federal Court which reinstated a member of the Mining & Energy Division of the CFMEU, the President of the Moura Lodge of the Union, to his former employment with Anglo Coal at the Dawson Mine. The member suffers from serious asthma. On 21 April 2014 the member was feeling unwell and didn’t believe that he would be fit to perform the night shift that he was rostered for on 23 and 24 April 2014. In an attempt to help his employer manage unplanned absences from work, the member applied for annual leave on those days. The application for annual leave was refused. On 23 and 24 April 2014 the member was unwell and unable to work. His Doctor certified him as unfit for work and prescribed him medication. He took sick leave for the two days in question. On 12 May 2014 Anglo Coal dismissed the member for failing to attend for a rostered shift. The Union commenced proceedings in Federal Court alleging that the member was terminated for a reason prohibited by the   Fair Work Act   2009 (Cth). Specifically, because he took sick leave and/or because he was a representative of the Union. On 20 May 2014 the Court heard the Union’s application for an interlocutory order re-instating the member pending the trial of this case. The Court found that there was a “serious question to be tried” in relation to these allegations and the matter is set down for trial in late July 2014 in the Federal Court at Brisbane. The Court decided to reinstate the member to his employment pending the trial of the Federal Court matter for the following reasons: there are social and psychological benefits associated with the member returning to the duties of his former employment; an offer by Anglo Coal to pay the member’s wages until the trial of the matter did not provide the member with a sufficient remedy because he would still go without the social and psychological benefits of work; the strength of the “serious question to be tried” favoured the Court granting an injunction reinstating the member; there was no evidence to support the submission by Anglo Coal that reinstating the member would undermine discipline at the Mine; there was no evidence to support the submission by Anglo Coal that there had been a breakdown in trust and confidence between the member and Anglo Coal; the Union and the members at the Mine would be inconvenienced if the member was not reinstated because he would be unable to perform the duties of his role as Lodge President; and the Court was not persuaded that, if an order was made reinstating the member, Anglo Coal would be able to stand the member down from his employment with pay pending the outcome of the case (as was contended for by Anglo Coal). This is a fantastic outcome for the member and the Union. The decision ensures that the member will remain in employment until the Union’s case is heard and determined. Hall Payne Lawyers has significant experience in running adverse action claims for breaches of he general protections provisions, particularly breaches of section 346 (relating to union membership and industrial activity) of the Fair Work Act 2009 (Cth). It is important that unions seek advice urgently if they believe that adverse action is being taken against a member or official in breach of these provisions. Delay may reduce the prospects of being able to obtain interlocutory relief, for example, reinstating a member or official or restraining such action from occurring pending the outcome of the substantive application. Should you require advice on a freedom of association matter please contact   Charles Massy or   Luke Tiley   on (07) 3017 2400. https://www.hallpayne.com.au/blog/rss/blog/2015/february/case-update-mining-energy-division-of-the-cfmeu/ Thu, 26 February 2015 00:00:00 On 16 July 2014 Hall Payne Lawyers (HPL) obtained an order in favour of the CEPU against Thyssenkrupp Elevator Australia Pty Ltd (Thyssenkrupp). The Federal Circuit Court declared that Thyssenkrupp breached section 50 of the  Fair Work Act  2009 (Cth) (the Act) and ordered Thyssenkrupp to pay a civil penalty of $15,300 to the CEPU. The Court found that Thyssenkrupp breached clause 10 of the Thyssenkrupp enterprise agreement, and therefore section 50 of the   Fair Work Act   2009 (Cth), by failing to consult with the CEPU and a CEPU member during an organisational restructure which resulted in the termination of the employment of the CEPU member, by way of redundancy. The Court relevantly found that Thyssenkrupp’s argument seemed not to recognise the important nature of the consultation right. The Court accepted that consultation is designed to assist management, not just employees and their unions.  The Court found that the CEPU and its member were denied the benefit of their right to be consulted and, in the case of the member, that right was irretrievably lost. The Court found that a member of the senior management of Thyssenkrupp was involved in the breach. The Court noted that consultation is designed to allow parties to an enterprise agreement to participate in a process to share ideas, suggestions and alternatives however no such opportunity was provided, in breach of the Act. The Court’s decision underscores the need for employers to understand the content of the consultation obligation and the important right it conveys to both employers and employees. It is an important right which can be activated irrespective of how many persons are affected by the workplace change that the employer is seeking to implement. Should you require advice on consultation, or enterprise agreement breaches generally, please contact   HPL Senior Associate   Luke Tiley   on (07) 3017 2400. https://www.hallpayne.com.au/blog/rss/blog/2015/february/win-for-etu/ Thu, 26 February 2015 00:00:00 Yesterday, Hall Payne Lawyers won a general protections matter in the Federal Court of Australia for United Voice. The proceeding concerned the termination by child care employer MDBR123 Pty Ltd (the Employer) and Mr Denis Hinton (the Director) of the employment of a United Voice member (the Union Member) in May 2013. United Voice (the Union) contended that the termination was effected in contravention of the Fair Work Act (the Act). The Court agreed. From March 2013 the Union Member attempted to recruit her fellow employees of the Union in an attempt to make an enterprise agreement with the Employer, which the Court accepted was the exercise of a “workplace right”. The Court also accepted that the Union Member proposed to engage in “industrial activity” by: encouraging her fellow employees to become members of the Union; by seeking to make an enterprise agreement ; by advancing the interests of the Union and by seeking to increase membership of the Union. In May 2013 the Union Member’s employment was terminated which is “adverse action” for the purpose of the Act. The Employer argued that the termination was effected because of:  complaints from fellow employees about the Member engaging in bullying and harassment;  the receipt of a complaint from a fellow employee about misrepresentations by the Member; the receipt of complaints from parents in respect of aggressive and unprofessional conduct by the Member, and no other reason. The Court rejected the Employer’s arguments and evidence. The Court found that the Employer’s concerns about the Union Member’s conduct were overstated and exaggerated and found that the Employer and the Director were concerned about unionisation and therefore the conduct of the Union member. The Court found that the Employer and the Director contravened the Act by terminating the Union Member’s employment for prohibited reasons, namely that the Union member had exercised a workplace right and proposed to engage in industrial activity. The matter is back before the Court for a hearing as to compensation and penalty on 4 February 2015. This is a terrific outcome for the Union Member and the Union. The decision reinforces the protections given to union members and activists by the general protections provisions. The decision will ensure that the Union Member receives compensation and the Employer and the Director are penalised for contravening the Act. The decision demonstrates the importance of union membership . Hall Payne Lawyers has significant experience in litigation involving the general protections provisions in the Act. It is important that unions and employees act quickly if they are dismissed because of a prohibited reason. Should you require advice on general protections matter please contact   HPL Senior Associate   Luke Tiley   on (07) 3017 2400. https://www.hallpayne.com.au/blog/rss/blog/2015/february/hall-payne-s-general-protections-win-demonstrates-importance-of-union-membership/ Thu, 26 February 2015 00:00:00 On 10 February 2015 a Full Bench of the Fair Work Commission in Serco Australia Pty Ltd v United Voice [2015] FWCFB 841 dismissed an appeal which sought to challenge a dispute finding which provided for back pay to United Voice members at the Southern Queensland Correctional Centre. In November 2013, United Voice lodged a dispute in the Fair Work Commission in relation to the   Serco Southern Queensland Correctional Centre Agreement 2013-2016   (the Serco Agreement). United Voice argued that a number of its members, covered by the Serco Agreement, were entitled to back pay. The matter went before Commissioner Booth in the Fair Work Commission who held on 19 December 2014 that: the Fair Work Commission had jurisdiction to hear the dispute; and, the workers were entitled to back pay from 1 April 2013. Serco Australia appealed Commissioner Booth’s decision to the Full Bench of the Fair Work Commission. Serco argued that that Commissioner Booth did not have jurisdiction to hear the dispute and that the decision for the United Voice members to be paid back pay should be set aside. United Voice engaged Hall Payne Lawyers to act on its behalf in the appeal. On appeal, the Union argued that the dispute was within the jurisdiction of Commissioner Booth and that the appeal should be dismissed. The Full Bench of the Fair Work Commission upheld Commissioner Booth’s initial finding that the dispute raised by United Voice in relation to the Serco Agreement was within the jurisdiction of the Fair Work Commission. As a result, the workers covered by the agreement were entitled to back pay from 1 April 2013. This is an important decision as the workers covered by the Serco Agreement will now receive back pay.  This decision illustrates how important it is for workers to be members of their union, as unions are able to not only negotiate better conditions for their members, but if a dispute arises about an Industrial Instrument, such as occurred with the Serco Agreement, the union will support its members through the dispute. Hall Payne Lawyers has significant experience and expertise in advising on industrial disputes and industrial agreements. Should you require advice in relation to an industrial dispute or industrial agreements please contact either   Charles Massy   or   Luke Tiley   on (07) 3017 2400. https://www.hallpayne.com.au/blog/rss/blog/2015/february/full-bench-upholds-dispute-finding-for-united-voice-queensland/ Tue, 17 February 2015 00:00:00 On 11 February 2014 a United Voice member (the First United Voice Member) attended upon HPL for a free consultation about a Courier Mail article containing the sub-heading “ A Brisbane jail is facing a high-level probe over suspicions a guard may have set up the murder of a prisoner ”, which the First United Voice Member considered to be defamatory. It quickly became apparent to HPL that, quite apart from the alleged defamation, the First United Voice Member was due to give evidence at a Coronial Inquest the following week and had not received any legal advice or representation to assist him in doing so. This was a particularly catastrophic situation given the serious allegation that had been made at the pre-inquest conference, leading to the Courier Mail publication. United Voice then engaged HPL on an urgent basis to provide the First United Voice Member with legal advice and representation regarding the Inquest.  During the course of preparing for the inquest it emerged that another United Voice member (the Second United Voice Member) was due to give evidence at a Coronial Inquest the following week and had not received any legal advice or representation to assist him in doing so. Ultimately HPL was also engaged by United Voice to act for the Second United Voice Member. On 19 February 2014 HPL represented the both the United Voice members at the Inquest including by cross-examining several witnesses. The ultimate outcome of the Inquest was as follows: (a)    No adverse  findings were made against either United Voice member; (b)   no adverse recommendations were made against either United Voice member; (c)    the Coroner expressly rejected the serious allegation against the First United Voice member; (d)   the Coroner held that the internal disciplinary process engaged in by the employer was adequate such that no further action was required. This Inquest demonstrates the importance of all workers being a member of their trade union. United Voice was able to promptly react to an extremely serious legal matter on behalf of its two members, at no expense to the members, by engaging the services of HPL who successfully protected the interests of the two members. If not for United Voice and HPL, it is possible that there would have been far more serious consequences for the two United Voice members and they would have been exposed to significant personal expenditure on legal fees. HPL has acted in Coronial Inquests on behalf of employees and trade unions. If you require any assistance in relation to a Coronial Inquest you should promptly contact HPL Senior Associate,   Luke Tiley   on 07 3017 2400 or  luket@hallpayne.com.au . https://www.hallpayne.com.au/blog/rss/blog/2014/december/successful-appearance-for-hall-payne-lawyers-at-coronial-inquest/ Thu, 18 December 2014 00:00:00 A recent Full Bench decision of the Fair Work Commission has highlighted the importance of properly electing whether to pursue relief for unfair dismissal or a general protections dispute when your employment is terminated and you believe it shouldn’t have been. When the   Fair Work Act 2009   (“ the Act ”) first came into force, it provided for different time limits for application for relief from unfair dismissal and general protections disputes involving a dismissal, being 14 days and 60 days. These time limits were amended effective 1 January 2013, to be 21 days for both types of applications. Although the Fair Work Commission is relatively informal in its processes and has broad discretion to correct or amend applications under section 586 of the Act, in   Peter Ioannau v Northern Belting Services Pty Limited   [2014] FWCFB 6660, the Full Bench held that section 725 of the Act meant that an applicant must withdraw the application before being able to pursue the other application. The practical effect of being required to withdraw the application before making the other application is that the applicant would need to convince the Fair Work Commission that there are exceptional circumstances to allow a further period in which to file the new application. As the words themselves suggest, ‘exceptional circumstances’ occur exceptionally. Applications for relief from unfair dismissal and general protections disputes involving dismissal are very different applications, but both can be grounded on a similar factual matrix. There are many reasons an applicant would elect one type of application over another, such as the jurisdictional pre-requisites of one type not being met. Hall Payne Lawyers has significant expertise in assisting individuals when their employment is terminated. For further information on your rights when your employment is terminated, please contact Hall Payne Lawyers. One of our Employment and Industrial Relations solicitors will be available to help you.  Click here to find out more about our services. https://www.hallpayne.com.au/blog/rss/blog/2014/october/getting-it-right-the-first-time/ Tue, 14 October 2014 00:00:00 On the evening of 23 August 2008, Ms Windley alleged that she sustained injuries when she attended Gladstone Ten Pin Bowl with work colleagues. Ms Windley suffered a fractured left femur when she slipped on the bowling lane surface when the lights were dimmed for “glow in the dark” bowling.  She argued that due to the limited lighting, she had difficulty judging or seeing where the “foul line” (the line that marks where you are to release the bowling ball) was situated.  She alleged that she used the position of another bowler a few lanes down to gauge where on the lane she should be releasing the bowling ball.   She took a couple of steps and slipped, falling onto her left hip and sustaining an injury.  It was alleged she had overstepped the foul line because she could not see it clearly, and had slipped on the polished lane surface beyond the foul line. It was alleged by Ms Windley that Gladstone Ten Pin Bowl owed her a duty to take reasonable care to avoid a risk of injury. She also alleged there were contractual obligations owed to her by Gladstone Ten Pin Bowl.  Whilst acknowledging a duty of care was owed to Ms Windley, The Gladstone Ten Pin Bowl denied that their duty and the contract had been breached.  It was also argued that the danger of slipping was an obvious risk and Ms Windley voluntarily assumed the risk. Ms Windley’s knowledge of ten pin bowling was important to the case.  She was experienced, having bowled for a number of years.  She conceded she was aware the lane surface beyond the foul line was polished and had previously attended (not always participated in) “glow in the dark bowls” at other venues in the past (importantly, not previously at the Gladstone Ten Pin Bowl) and on this basis a warning about the lane surface beyond the foul line being highly polished would have been “superfluous”.   However, she did state that whilst she was aware of the dangers, she still required visibility. Where the injury actually occurred was of some debate.  Ms Windley was unsure whether she slipped before or after the foul line.  Witness statements as to Ms Windley’s position after falling, led the judge to conclude she had slipped on the polished lane surface beyond the foul line.  It was accepted by the judge that whilst there were warning signs at the time of the accident, these were not clearly visible.  Importantly, these signs were replaced and located differently following the accident, and the lighting was also significantly improved after the incident to assist in providing better illumination. The judge also accepted evidence that a verbal warning to participants was not made until after the subject incident. The most important feature of the case was the foul line.  It was black in colour.  The judge accepted this made the foul line difficult to see in poor lighting where the lights had been extinguished.  An employee of Gladstone Ten Pin Bowl conceded that a white foul line could be produced.  The judge accepted a white foul line would be more visible than the existing black foul line.  The same employee conceded that bowlers slip/fall over approximately once per month because the lane surface is more slippery than the approach. The judge accepted that the foul line was not clearly visible and the warnings made about the dangers of “Glow in the Dark” bowling were inadequate.  He accepted that Ms Windley unsuccessfully attempted to look after her own safety.  The duty to her was owed and breached, and as a result she sustained injury.   He also found that there had been a breach of contract by Gladstone Ten Pin Bowl.  He did however concede that she failed to keep a proper lookout given her prior experience.  Based on previous court decisions, the judge determined Ms Windley was 40% contributory negligent. Ms Windley sustained a significant left hip injury.  It was accepted she may require a hip replacement in future, which could potentially lead to her developing a whole person impairment of 15%.  After apportioning contributory negligence of 40%, the court awarded Ms Windley over $156,000.00. Hall Payne Lawyers has significant experience in personal injuries law and the litigation involving public liability claims.  It is important that people act quickly if they are injured because strict time limits do apply. Should you require advice on a personal injury matter please   contact us  on (07) 3017 2400. https://www.hallpayne.com.au/blog/rss/blog/2014/september/hall-payne-lawyers-case-note-windley-v-gladstone-ten-pin-bowl/ Tue, 30 September 2014 00:00:00 Hall Payne Lawyers recently represented United Voice, Northern Territory Branch in respect of its ongoing industrial dispute with St John Ambulance Australia (NT) Inc.  United Voice paramedics in the Northern Territory have been engaged in various forms of protected industrial action in pursuit of their claims in respect of a new enterprise agreement.  One form of protected industrial action was a ban on entering patient information into the Siren system, a computerized system on ambulances for recording patient information, and to instead record this information on paper patient case cards.  The recording of information on paper patient case cards was the practice until August 2013. This industrial action commenced in February 2014.  In August 2014, St John issued Notices pursuant to section 471 of the Fair Work Act proposing to deduct amounts of up to 12% from paramedics pay in respect of each shift during which the paramedics participated in the partial work ban. United Voice commenced an application pursuant to section 472 seeking that the Fair Work Commission reduce the proposed deduction on the basis that the deduction was unreasonable given the nature and extent of the industrial action and was unfair. The matter was to be heard to be heard in the Fair Work Commission on 17 September 2014.  Prior to the matter being heard, at the direction of the FWC, United Voice and St John reached a consent position.    United Voice was successful in reducing the proposed deduction in respect of the vast majority of paramedics in the Northern Territory of over 60%.  This was a significant victory for United Voice  and for its paramedic members.  Hall Payne Lawyers has significant expertise in assisting unions in developing and implementing strategies in respect of enterprise bargaining and industrial action.  For assistance with bargaining and industrial action matters contact   Charles Massy   or   Luke Forsyth   on 07 3017 2400. https://www.hallpayne.com.au/blog/rss/blog/2014/september/hall-payne-lawyers-assists-united-voice-northern-nt-branch-to-reduce-partial-work-ban-deduction/ Wed, 24 September 2014 00:00:00 The Federal Court of Australia has found that four CFMEU officials are entitled to continue their claim against Sunbuild Pty Ltd (“Sunbuild”) for refusing them entry and/or hindering and obstructing them in the exercise of their rights as permit holders under the  Work Health and Safety Act 2011  (NT) (the “WHS Act”).  The CFMEU officials allege that: between June and July 2013, Sunbuild was engaged in demolition work at the Paspaley site in the central business district of Darwin; the four officials held a reasonable suspicion that Sunbuild was contravening the WHS Act. Specifically, the officials suspected the workers at the site were being exposed to asbestos; on three separate occasion in that period Andrew Ramsay, Michael Huddy, Scott Vink and Dennis Mitchell attempted to enter the Sunbuild worksite to inspect it; on each occasion all four applicants were refused entry to the site, although Mr. Ramsay and Mr. Huddy each eventually gained entry; and on the occasion that Mr. Ramsey gained entry to the worksite a water sprinkler was turned on him and he was later told that the police would be called; and when Mr Huddy final gained entry to the site he requested a copy of the safe disposal plan for the removal of any asbestos present at the site. The manager refused to provide the safe disposal plan and told Mr Huddy to leave the site.  Following this direction Mr Huddy was yelled at, pushed and shoved. Mr Ramsay, Huddy, Vink and Mitchell subsequently commenced a proceeding in the Federal Court of Australia seeking, amongst other things, the imposition of pecuniary penalties and declarations that pursuant to the   Fair Work Act 2009   (Cth) (the “FW Act”) Sunbuild had unlawfully refused them entry or hindered or obstructed them in the course of their duties.  After the proceedings were commenced Sunbuild agreed to allow the officials to gain entry to the site in accordance with the WHS Act. Sunbuild has defended their claims and, amongst other things, asserted that Mr Ramsay, Huddy, Vink and Mitchell were not entitled to commence the proceeding pursuant to the FW Act because the rights of entry arose in accordance with the WHS Act.  Further, Sunbuild contended that as Mr. Ramsey, Huddy, Vink and Mitchell had no right of prosecution under the WHS Act they could not bring the proceedings under the FW Act. On 11 February 2014 Justice Reeves found that Mr Ramsay, Huddy, Vink and Mitchell were entitled to bring proceedings pursuant to the FW Act.  Justice Reeves found that the relevant provisions of the FW Act regulated the exercise of State and Territory OH&S rights by officials of Federally registered unions. Provided those regulations were complied with, those officials were entitled to commence proceedings to enforce that the prohibitions on refusal of entry and/or hindering and obstructing contained in the  FW Act. The case will now proceed to a final hearing. Hall Payne Lawyers has significant experience in right of entry disputes and penalty proceedings.  It is important that unions and permit holders seek advise quickly if they consider that an employer is breaching their right of entry obligations.  Delay may reduce the prospects of being able to obtain interlocutory relief, for example, requiring an employer to permit an entry or to provide relevant records. Should you require advice on a right of entry dispute please contact   Luke Tiley. https://www.hallpayne.com.au/blog/rss/blog/2014/february/sunbuild-asbestos-dispute/ Wed, 12 February 2014 00:00:00