Unintended Consequences from Workcover Changes

Unintended Concequeses from WorkCover ChangesWhen the State Government amended the Workers’ Compensation and Rehabilitation Act from October last year, it provided a legislative entitlement to employers to obtain a WorkCover claims history for a prospective employee.  The mechanism was intended to benefit business through enabling them to be fully aware of a worker’s previous injuries and claims history and it was thought it would enable business to manage its risks and avoid increased costs through absenteeism, WorkCover claims or work restrictions.

It turns out, however, that these changes may in fact have exactly the opposite effect and it may end up increasing cost to business through increasing the economic loss that will be suffered by any worker who is injured in the course of their employment.

In recent decisions of both the District and Supreme Courts, trial judges hearing claims involving work injuries have expressly referred to the new obligation on a worker to disclose their WorkCover claims history to a prospective employer and have observed that this of itself will impair their earning capacity in the future simply because they had the misfortune of suffering from a work related injury.

As a result, in both of these recent decisions, Judge Baulch SC in the District Court and Justice McMeekin in the Supreme Court have made higher awards to injured workers for future economic loss, than they otherwise would.

There is an obvious tension between the interests of the employer in knowing the full workers’ compensation history of a prospective employee, and the interests of the injured employee who is just trying to do their best to get back to work after being off due to an accident.  I am not sure what the answer is but, it may be that the new provisions are not going to provide the benefits to employers that the Government thought that they would.

Travis Schultz
Managing Partner
Schultz Toomey O’Brien Lawyers
Ph: (07) 5413 8900
Fax: (07) 5413 8958

Domestic Violence Sufferer Tells Her Story

White Ribbon NightOn news.com.au yesterday, Rachel Kayrooz tells her story about the domestic violence she suffered from her ex-partner. Rachel and her ‘future boyfriend’ met while performing at a wedding. She was the singer and he was in the string quartet. She said she had a lot of great friends and was really enjoying her life and career as best she could.

However, from the first day she met him, he manipulated her which started out as emotional and psychological abuse and stalking. It wasn’t until later on that she found out he had a domestic violence order out against him, from a relationship breakup he’d just gone through.

He would stalk her male work colleges, call her fat and put her down all the time. She would cover up her bruises by wearing makeup and long-sleeved tops. He’d lock her up in the house and take the keys so she couldn’t go anywhere. She was a prisoner. Rachel had saved over $35,000 in which he also took from her.

Rachel fell pregnant and he wasn’t happy about it, and she thought he’d leave her. But instead, he said “let’s move in together.” The suburb they moved to was away from her friends and family. She was now four and a half months pregnant with no support around her.

Rachel tried to leave him on numerous occasions but was caught up in his psychological control. He would throw food against the wall when she’d go to make breakfast in the morning. She suffered from anorexia for years and was anorexia while pregnant. Her doctor told her to try and eat anything she could to put on weight.

Rachel was six and a half months pregnant when she was beaten by him and left in a cupboard to die. She thought about what would happen if her baby survived and she didn’t and who would look after the child.

She eventually moved into a rental property with her child but he still stalked her there and she had to relocate again. He would drive by and call her phone and have other women call her and abuse her as well.

Rachel now has a number of disabilities from the abuse including a lot of physical injuries and emotional trauma.

You can read more of Rachel’s story here http://www.news.com.au/lifestyle/real-life/rachel-kayrooz-who-suffered-domestic-violence-talks-about-her-heartbreak-for-allison-badenclay-and-white-ribbon-night/story-fnixwvgh-1227000328570

Rachael is a supporter of White Ribbon Night, a fundraising event being held on July 25, 2014, for the White Ribbon foundation, Australia’s campaign to stop domestic violence against women.

To find out how you can get involved with the White Ribbon or to donate, visit http://www.whiteribbon.org.au.

How To Have A Happy Family – 7 Tips Backed By Research

How to have a happy familyA recent article published in TIME magazine provides 7 tips on how to have a happy family. Each tip is backed by research. You can read about each item here. Below we have provided the list.

1) Having Dinner Together Matters
2) Share the Family History
3) Reduce Stress
4) Be Part Of A Larger Community
5) Use Checklists
6) Empower The Children!
7) Grandma’s Have Superpowers

If you need any assistance with a family situation, please contact our Family Lawyers today. 1300 STOLAW or visit our website stolaw.com.au.

Father marries off 12 year old daughter

Earlier this year, the father of a 12 year old girl and a 26 year old man, were charged over numerous child sex offenses. The child was allegedly married off because she was told sharia law “overrides” Australian law. The 26 year old was charged with 25 counts of sexual intercourse with a child and admitted to having sex each day with the girl after the religious ceremony in January.

In the court documents the girl stated thattogether with the accused they had been trying to get him registered as her legal guardian with Centrelink in order to obtain any welfare benefits they could.”

The girls’ 62 year old father was also charged for procuring a child for sex and being an accessory.

The alleged child bride is now in the care of the Department of Community Services along with her 8 year old sister.

Read the full story here

New risk in drip pricing

New risk in drip pricingThe practice of advertising a price for a particular service but adding on additional fees in particular circumstances has become a reasonably common practice across a range of service industries but it is now one which is the subject of scrutiny by the Australian Competition and Consumer Commission (ACCC). The practice of “drip pricing”, as it is known, has been commonly used in the airline industry and now both Virgin and Jetstar are facing action by the ACCC because of the alleged unfairness of the practice.

In the matter brought against Jetstar, The ACCC is concerned because of their addition of a “booking and service” fees where tickets are booked by credit card and in the case of Virgin, because they add a fee of $7.70 per fare for both credit and debit card transactions.

The ACCC believes that the airlines have provided insufficient disclosure when a particular sale price is advertised and that it can lead to consumers being mislead.

Both Virgin and Jetstar say they intend to defend the allegations.

It is not at all unusual for businesses operating in the services sector to attract customers by advertising a low price but to charge additional fees where there are “service upgrades” or “additions”. Arguably, the practice makes it harder for other businesses to compete on a level playing field as well as potentially misleading consumers. If the ACCC is successful in its actions against the airlines, it may be that businesses in the services sector have to take a whole new approach to marking themselves in the future.

Travis Schultz
Managing Partner
Schultz Toomey O’Brien
Ph: (07) 5413 8900
Fax: (07) 5413 8958

Employers must take mental health issues seriously

Employers must take mental health issues seriouslyA recent decision of the Fair Work Commission has reinforced that employers must take into account mental health illnesses being suffered by workers when considering a termination in light of their conduct. In a decision handed down on 26 June this year, the Commission found that a large corporation, John Holland Pty Ltd, had unfairly dismissed an employee who was known to have had mental health issues and who had his employment terminated because he had refused to change rosters and had sent an email to his managing director alleging that his managers were “trying to kill me and my family”. John Holland Pty Ltd then terminated the employee primarily on the basis that he had made “alarming, incorrect and threatening” statements about the John Holland Group.

The particular employee, an aircraft engineer, had been under the care of his General Practitioner for mental health issues for more than six months and his General Practitioner had recommended that he not change rosters so as to remain in a role that he was familiar with.

In handing down the decision, Commissioner Ryan found that the actions of the employer were unfair and that it ought to have had regard to his known history of a psychological condition and the fact that English was his second language. Because the Tullamarine operations of John Holland had closed by the time of the hearing, reinstatement was not possible but compensation was awarded.

There is no doubt that at common law, an employer owes a duty to an employee to take reasonable care to avoid foreseeable risks of injury, including the risk of a psychological injury or aggravating or worsening a known condition. The same can be said when termination is being considered as this recent Fair Work Commission decision makes it clear that a psychological condition needs to be taken into account when considering the offending conduct.

Travis Schultz
Managing Partner
Schultz Toomey O’Brien Lawyers
Ph: (07) 5413 8900
Fax: (07) 5413 8958

Are we getting fat and lazy?

Are we getting fat and lazy?Despite a global economic crisis, Australia has ridden a wave of prosperity in recent years thanks to a well timed mining boom but is our relative wealth and prosperity going to do more harm than good in the long term? Thanks to the mining boom, Australians have been enjoying a period of real wages growth despite a low interest rate environment (which the rest of the world would consider to be high given what has happened over the last few years) and it has been sufficient to cause resurgence in the National property market. Our robust economy and relatively high interest rates have seen the Australian dollar remain inflated with the consequential negative influence on both our exporting and tourism sectors.

But what causes me greatest concern is what all of this means for our taxpaying working class. Where other countries have had little growth since the GFC and have tightened their belts accordingly, Australians have become accustomed to increasing rates of pay and all the perks of industrial awards, generous maternity (and paternity) leave, penalty rates and entitlements. Add to that an increasing rate of superannuation and we really are the lucky country. Or are we?

The World Economic Forum recently released their competitiveness tables and these show that we are currently ranked number 54 in the world in terms of labour market flexibility. That is a relatively sudden drop from our position of 14 back in 2009. This is the first time we have ever been outside the top 20!

Largely as a result of our high cost of labour and inflexibility, we have lost our car industry and it is near on impossible to manufacture in Australia and export. The hospitality sector does it tough when our cost of living is so relatively high that we struggle to attract international tourists and our locals are keeping their cash in their pockets (or at least what is left after recent tax increases).

Given that we operate in a global economic environment, it’s hard to see how our economic profile can continue to improve whilst we remain so uncompetitive in terms of our labour force.

Perhaps this is why our University graduates are starting to find it difficult to secure their first job?

Travis Schultz
Managing Partner
Schultz Toomey O’Brien
Ph: (07) 5413 8900
Fax: (07) 5413 8958

Data Brokerages Require Regulation

Data Brokerages Require RegulationIt is not an industry that promotes itself nor does it want you to know much about their business model, but the evolution of technology and an era of E-Commerce has resulted in the growth of companies who collect data about individuals and on sell that information for a fee. These so called “data brokerages” have global presences and many operate in Australia. Companies with Australian presences include Corelogic, Acxiom and eBureau.

And you would be surprised what they know about you. Depending upon your online presence and profile, they might know about your hobbies and sporting interests, the type of hotel you like to stay in, your political persuasion and what you buy online. They will collect details of your current and past residential addresses, your employment history and have a fair idea about your level of income. It is scary really!

I, for one, am uncomfortable with the idea that there are companies out there collecting information about me so they can sell it to the highest bidder. It seems that it is not really ASIO or any big brother Federal Authority that we need to be worried about!

In the United States, the Federal Trade Commission has recently issued a report which suggests that these data collecting companies need to be regulated due to a “fundamental lack of transparency” about the way in which they operate.

It’s surprising that given our national privacy laws and our fundamental belief in a right to keep our personal business as our own, that the Australian Federal Government has not seen fit to regulate the industry. Perhaps now is the time?

Travis Schultz
Managing Partner
Schultz Toomey O’Brien
Ph: (07) 5413 8900
Fax: (07) 5413 8958

What is distracted driving?

Thank you Join the Drive for sharing the Fatality Free Friday post this “What is Distracted Driving”? It is very important when driving to ensure you are focused at all times, otherwise you are putting not only yourself at risk, but your passengers and other road users. Take care on the roads.distracted driving

Image source: Fatality Free Friday

Second Annual Wine Makers Masterclass

On Thursday 10th July, we held our Wine Makers Masterclass in support of SunnyKids. Our major sponsors for the day were Think Office Technology and glassware sponsors was Riedel. The event had close to 200 guests in attendance and 7 wine makers from Australia’s First Families of Wine. We were very privileged to be able to listen to some of Australia’s best Wine Makers including Mitchell Taylor of Taylors Wines, Ross Brown of Brown Brothers, Bruce Tyrrell of Tyrrell’s Wines, Darren DeBortoli of DeBortoli, Adrian Gett of McWilliams, Mark Baily of Howard Park Wines and Toby Porter of d’Arenberg. It was a great afternoon with a live auction and raffle. The event raised over $35,000 for SunnyKids. Thank you to everyone who attended on the day we hope you all had a fabulous time. More photos on our Facebook page -> http://ow.ly/z77Xm

Wine Makers Masterclass