Revenge Porn –It has never been o.k and now there is a law against it!

While the term “revenge porn” is not the term used in the bill (Criminal Code (Non-Consensual Sharing of Intimate Images) Amendment Bill 2018), the message is clear. Harmful behaviour is no longer tolerated.  Queensland has taken a stand against the increase of non-consensual sharing of intimate images.

Queensland Attorney-General and Minister for Justice Yvette D’Ath has advised “The government recognises that the non-consensual sharing of intimate images covers a broad range of conduct, relationships, motivations and modes of distribution,”

The bill to change the law was introduced in or about 2018. On 13 February 2019, the changes to the Queensland Criminal Code were passed through parliament and made into law. 

A brief summary of such an important law includes that (circumstance dependent);

  • People who share sexual or intimate images or videos of another person without their consent could now spend up to three years’ in jail in Queensland; and
  • Please who threat to distribute intimate or prohibited images or recordings is also a misdemeanour with a maximum of 3 years prison;

The new law includes that;

  • consent means – consent freely and voluntarily given by a person with the cognitive capacity to give the consent.
  • Intimate image, of a person, means – a moving or still image that depicts;
  • the person engaged in an intimate sexual activity that is not ordinarily done in public; or
  • the person’s genital or anal region, when it is bare or covered only by underwear; or
  • if the person is female or a transgender or intersex person who identifies as female—the person’s bare breasts; and
  • includes an image that has been altered (digitally) to appear to show any of the things mentioned above, even if the thing has been digitally obscured if the person is depicted in a sexual way.
  • prohibited visual recording, of a person, means;
  • a visual recording of the person, in a private place or engaging in a private act, made in circumstances where a reasonable adult would expect to be afforded privacy; or
  • a visual recording of the person’s genital or anal region, when it is bare or covered only by underwear, made in circumstances where a reasonable adult would expect to be afforded privacy in relation to that region.

Distribute the images and pay the price

It is now clear. Section 223 of the Queensland Criminal Code provides that it is an offence to distribute intimate images of a person without the person’s consent in a way that would reasonably cause the person distress.

It is irrelevant whether the person distributing the images intended to cause distress or actually caused distress.

Rectification order

If a court finds a person guilty of these offences, it can order that the images or recordings be removed, deleted or destroyed within a stated timeframe. If the offender fails to comply with the order, they can be found guilty of a further offence.  Such offence is punishable  by a term of imprisonment up to two (2) years.

This will be an increasing area of law so watch this space.  This law has been passed in Queensland, which means the jurisdiction of the law is in Queensland.  For matters outside Queensland, Commonwealth Law may apply.

If you have been subject to inappropriate images and video’s being sent via text, email, social media or the internet.  We highly recommend and also implore you to contact your local Police Station in addition to your State and the Federal Safety Commissioner. 

If you are concerned about actions against you, legal advice should be obtained about your specific circumstances, in addition to contacting the Government entities. You can also seek counselling and advice from Kids Helpline on 1800 55 1800 (if you are under 25), or Lifeline on 13 11 14.

The information in the Tropical Lawyer articles are provided as guidance only and legal advice should be sought specific to your circumstances and the application of the law to your circumstances.

Tips for dealing with Insurance following the flood

 

One of the main issues with policies will be are you covered for “flood water” and/or “stormwater”?  Secondly, what type of water impacted your property. Your policy may cover you even though at first glance it does not appear that way.

Keep records

  • While everything is fresh in your mind, make notes about the event. When water first came into the property, where the water was coming from and the times;
  • When calling your Insurer, note down the name of the representative you are speaking too and the reference number (if any);
  • Take a screenshot of your phone call details;
  • Confirm the advice/information received in an email;
  • Keep samples of the materials and fabrics to show assessors;
  • Do request instructions on how to deal with the damaged property;
  • Do not move anything or clean anything without taking photos and/or video’s and speaking with your insurer. You may even wish to have some neighbours come and view the damage as well for extra witnesses;

Quantifying the damage and dealing with Insurers

  • Do print out or review online a copy of the terms of your policy;
  • Do ask the Insurer to email you the information and documents they need. It is important that you take your time in filling in the forms/advising of the information.  Only give the information they ask for;
  • Ensure emergency work is authorised by the Insurer in writing, before commencement;
  • Do not answer questions you do not know the answer to, write down the information the Insurer is seeking, obtain the information then advise;
  • Do question your Insurer if/when they say no;
  • Question policy definitions and exclusions. On closer inspection, you may be entitled to be insured for the damage when an Insurer says no;
  • Do ask your Insurer for a copy of the Loss Adjustor Report, they commission from their loss adjustor;
  • Do question the Report and seek a second opinion;
  • Do check to ensure that any works to be performed are by licensed and insured professionals;
  • Do obtain your own independent report on the damage;
  • If you are in urgent financial need you can ask your insurer to fast track your claim and make an advance payment within five business days of you demonstrating your urgent financial need. Any advance payment may be deducted from the total value of your claim;
  • If your claim has been finalised within one month of the disaster, your insurer must give you six months from the finalisation date to ask for a review of your claim (for instance, if you think the insurer has not accurately assessed your loss), even if you have signed a release.

Complaints

Insurance companies will have a number of claims they are processing.  It is likely that there may be some delays.  Your Insurer will have a complaints procedure on their website that should be followed in the event that you wish to lodge a complaint.

Following this, the Australian Financial Complaints Authority (“AFCA”), is a free and independent dispute resolution body for Insurance complaints.  AFCA request that you first make contact with the Insurer for your complaint and if not resolved to follow their complaints process on their website.  https://www.afca.org.au/

Further Assistance

The Insurance Council of Australia have advised that they will hold two insurance forums in Townsville to provide claims guidance.  

The information provided in this article is general in nature and is intended to provide a summary or general overview.  It is not intended to be comprehensive and does not constitute legal advice.  You should obtain legal advice specific to your circumstances.

 

I

Wet Weather and Work

WET WEATHER & WORK

Given the current wild weather in NQ and FNQ questions are being asked about entitlements to pay when stood down due to weather.

If an employer stands down an employee because of a natural disaster, they don’t have to make inclement weather payments, unless it is provided for in the Award, Contract, Letter of Offer or Enterprise Agreement etc. 

If you are concerned about if you should be paid during a shut down for inclement weather, you should review the terms of your employment, (please don’t rely upon advice from well-meaning Facebook comments from non-qualified individuals).

If the terms of your employment make no reference to inclement weather, then pursuant to the Fair Work Act, your employer is not required to pay you during the stand down.

Inclement or severe weather

Inclement weather is when it is unsafe or unreasonable for an employee to work because of severe weather conditions.

Awards, enterprise agreements and other registered agreements can set out:

  • what inclement weather includes
  • what employees and employers have to do when there is inclement weather.

Stand down

Unless the terms of employment provide otherwise, an employer can send employees home if there is no useful work for them to do because of natural disaster (including floods, bushfires, tropical cyclones).  This is known as a stand down. This can only happen if the reason for the stand down was out of the employer’s control.

Employees can’t be stood down just because there is not enough work.

Pay during stand down

An employee is not paid during a stand-down period unless the terms of the employment state otherwise.

The Fair Work Ombudsman has published a “Best practice tip”

An employee is not paid during a stand down period. However, an employer can be flexible and consider other options that will allow an employee to be paid.

The employer can consider letting employees:

  • take a period of paid leave, such as annual leave
  • work at another location such as from home or another work site.

However, you should be aware this is a best practice tip, not a requirement unless provided for in the terms of the employment.

Employers should review documents before standing employees down

Employers can often be caught out being unaware of their obligations to employees.  This can be unintentional, but despite this, it can often lead to angst and discourse in the workplace.  Don’t be caught out. Make sure you are prepared for inclement weather events (particularly given where we live).

Employers prior to, and during times of inclement weather should review their terms of employment, enterprise agreements or awards to ascertain their legal requirements and obligations to their employees.

Employers should also review these documents to establish if they have an obligation to find other work or consult with employees before standing them down due to inclement weather.  Failure to do so can also have legal ramifications for breaching general protections.

Contracts of Employment/ Enterprise Agreement may provide for pay

Employees and Employers should review terms of employment to determine if your employment conditions include being paid for stand down during severe weather.  It is not unusual in fields such as civil mining/mining for contracts/enterprise bargaining agreements to provide that employees are to be paid a portion or their full wage during a stand down.

Remember in times like these, if it’s flooded FORGET IT!  Stay safe Queenslanders!

For more information, see the Fair Work Ombudsman Website https://www.fairwork.gov.au/pay/pay-during-stand-down-and-severe-weather

The information provided in this article is general in nature and is intended to provide a summary or general overview.  It is not intended to be comprehensive and does not constitute legal advice.  You should obtain legal advice specific to your circumstances.

 

Gaslighting in the Workplace – Bullying and Harassment

gaslighting workplace

A lie that is repeated long enough eventually can be seen as the truth (Hasher, Goldstein and Toppino (1997))

Lately, I have seen a significant increase in gaslighting incidents within workplaces.  The term gaslighting is more commonly associated with relationships and friendships. However, with a rise in bullying and harassment the term is becoming more common and a term for explaining behaviours within the workplace environment.

So, what exactly is gaslighting?

Gaslighting is a term that stemmed from a 1944 movie titled “Gaslighting.”  The movie featured a husband that manipulates his young wife to a point where she no longer trusts her memory, perception or judgment and thinks she is losing her mind.  The gaslighter, as is common, exuded a charming and well-liked personality.

More recently, gaslighting has been used when describing certain workplace situations. It is more commonly identified as a technique of emotional and psychological manipulation – including obvious and transparent tactics and/or highly deceitful and calculated behaviours such as;

  • Shaming;
  • Being dismissive and denying events/discussions;
  • Repetition of lies;
  • Minimising their conduct “You’re making a mountain out of a mole hill”, “I’m just trying to help you” “You’re misinterpreting things”;
  • Withholding information and /or stonewalling;
  • Questioning your competence. This can sometimes include blaming such as “are the kids keeping you up at night” “are you having relationship issues?”

The person who has been gaslighted often has feelings of second-guessing, they question their sensitivity, feel confused or even crazy at work, notice changes to their personality, often feel undermined and have a loss of confidence.  The gaslighter is a master manipulator and often doesn’t necessarily look like the bad guy/girl you’re used to in the movies.

Gaslighting can occur by a Manager/Supervisor to an employee or by an employee to their Supervisor/Manager; it is not discriminatory on your workplace status.  The instances of gaslighting can vary in severity and frequency, it commences gradually.  As gaslighting behaviour can be broad, it can be misused or confused with other behaviours such as;

  • An honest disagreement;
  • Stubborn Individuals;
  • White lies masking more painful or difficult truths;
  • Rudeness and discourtesy;
  • Erroneous and confusing directions; and
  • An argument from a misunderstanding.

Similar to friendship gaslighting, workplace gaslighting can include mobbing, where the gaslighter “recruits” by bringing in allies, it can include gossiping, excluding and sabotaging within the workplace.

How does gaslighting affect the workplace?

Gaslighting will affect the culture and therefore the productivity in a workplace.  Gaslighting can result in higher use of sick leave, tarnishing of the employer’s reputation and increased staff turnover with unhappy employees leaving the workplace.

In addition to the loss of valuable staff members, gaslighting can also cause injury to employees, resulting in WHS breaches, Fair Work/Industrial Relations actions and workers compensation claims.

Regardless of your position within a business, if you are on the receiving end of gaslighting, it is likely that you will or have been exposed to psychological effects.  It is important that you seek medical advice as soon as possible.

Ways to assist in minimising/preventing/stopping gaslighting.

Early identification.  Identify and act;

  • Stop seeking validation from the gaslighter – minimise contact (where possible);
  • Stop apologising (it’s likely you have nothing to apologise for);
  • Document the events where possible (in writing or recording). Is it occurring by email? Then cc another person into the emails;
  • Then assert yourself! Remember – gaslighters will try to turn the situation around.  Documenting stops this;
  • Report incidents within the workplace;
  • Where possible obtain a witness;
  • Talk to HR (or another representative). Explain what gaslighting is and the events that have transpired with you;
  • Find support (medical and personal). You need to regain faith in your own reality and perception.

Don’t forget, if you identify gaslighting in the workplace, report it and act on it – it’s a form of bullying and harassment.  Generally, confronting them directly will not get you anywhere.

What can you do to help prevent gaslighting within your workplace?

Don’t just talk the talk – walk it.  Make a conscious decision to take a stand and make an effort to continue to improve your workplace culture.  Have strong bullying and harassment morals, ethics and workplace practices that are adhered to.

Lastly, make up your own mind!   Have you been told something about someone? Sound out of character? One way in which to avoid being manipulated to join a gaslighter is that you should ALWAYS make your own enquiries.  It’s a basic plan, don’t be lazy with your decision making.  Give the other person the benefit of the doubt, before joining the mob with your pitchfork.

Please note that this article is meant for general information only and is not intended to be medical or legal advice.  If you have or think you may be affected by gaslighting, you should seek advice specific to your circumstances as soon as possible.

 

Casual workers can have unfair dismissal rights too!

All too often I see and hear people comment that casual workers don’t have rights in regard to unfair dismissal.  “You’re a casual, they can sack you at any time.”

This is a false statement and casual workers who rely upon this information are potentially losing out on entitlements.  Casual workers do have rights, which include, in some circumstances, actions for unfair dismissal.

Casual workers are excluded from bringing unfair dismissal claims unless they:

  • worked on a regular and systematic basis,
  • had a reasonable expectation of ongoing employment, and
  • worked in excess of 6 months (if their employer is not a small business employer) or 12 months (if their employer is a small business employer (under 15 staff).

Regular and Systematic basis

The Fair Work Commission considers the following factors when determining whether a casual’s employment was regular and systematic:

  • the worker is offered work regularly and generally accepts work when offered
  • a pattern or system is clearly established that the casual worker is offered work regularly and the worker would accept that work.
  • the casual worker generally works as part of a regular crew and has a reasonable expectation of work on particular days of the week. The casual does not need to be told each and every day to be required to work in these circumstances. This illustrates evidence of a regular and systematic basis for the employment.
  • there is a clear pattern of work being offered with reasonable frequency and of the work being generally accepted.
  • the employer has a reasonable expectation that the casual worker would work when work is offered. The pattern of employment cannot be described as irregular, informal or occasional.
  • it is not necessary to establish that shifts and start and finish times are regular or rostered to establish that the employment is on a regular and systematic basis.
  • whether during the period of employment there was a reasonable expectation of ongoing employment.
  • the evidence of what actually happened supports the finding that there was a reasonable expectation of ongoing employment on the same basis as had been occurring during the period of employment.

The recurring factors are that a casual worker is regularly offered work when it was available and came to expect that.

Reasonable expectation of ongoing work

The Fair Work Act also provides that a “long term casual worker “ is a national system worker of a national system employer at a particular time if, at that time:

(a)  the worker is a casual worker; and

(b)  the worker has been employed by the employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months.

The next step a casual need to consider is if they meet the requirements to bring an unfair dismissal on the basis that the dismissal was harsh, unjust or unreasonable. Strict 21-day time limits apply, so legal advice should be obtained urgently.

Employers and workers should also remember that just because a worker is called a casual does not necessarily mean that they are one! Many times, casuals have been found to be permanent employees.

This article is written to provide information only.  You should consult with a qualified lawyer with questions about your employment entitlements, specific to your circumstances.  State and Territory workers will need to review the State and Territory Laws, where they are not a national worker.  Other avenues also exist for general protection matters (involving termination) which has not been covered in this information sheet.

Do not resuscitate (think Grey’s Anatomy – Izzy!) – Have I got your attention?

Since Tuesday afternoon, I have had self-diagnosed laryngitis that came on super strong. So, I lost my voice amongst a general feeling of intense cold and flu symptoms.  When asked how I am this week, I have responded (where able) with a very serious, “I have a hard-core man flu – imminent death is apparent.” People laughed, some may have thought I was oversharing/dramatising?, but I was deadly serious. I wasn’t laughing, I felt like death warmed up and speaking caused physical pain!

It gets you thinking, what if you couldn’t speak for yourself?  What if your brain could make decisions but you were unable to express them? Think Callie Torres in season 7, episode 18 of Grey’s Anatomy (I LOVE this show!). You’re in a coma, able to hear what is being said, but unable to speak.  OMG! intense, uncool and a very scary situation.

My husband and I have completely different opinions on health management in the event that we lose capacity or the ability to express our wishes.  He says he doesn’t want to live on a machine, turn it off.  I say I am a rock star! I might be on life support for months before I wake up, but I will wake up (because I’m amazing), so don’t you dare turn it off!

We talk about things like this, and that’s awesome, a lot of people don’t. But, if I am in a situation where my husband does not have the capacity to express his wishes, I don’t know if I could follow the instructions he has verbally told me.  He wants me to turn off the machine! But, I’m a believer in that 1% chance of waking up and I’ll hold onto that 1% and run with it for years if I have to.

So, what’s this post about? Advance Health Directives (“AHD”).  They are a Queensland document which provides direction on your health in the event you don’t have the capacity to make decisions.  They are a document for your loved ones and medical team, detailing what your wishes are!

The benefit of an AHD is that it gives you a greater say in your future healthcare, such as in circumstances where life support is necessary, directions on what action you would like taken. An AHD applies at a future time if you become unwell and are unable to make decisions about your healthcare. i.e you do not have the ‘capacity’ to make decisions.

You can use your AHD to express your wishes in a general way, such as stating that you would want to receive all available treatment. You can include relevant information about yourself that health professionals should know, such as:

  • special health conditions;
  • allergies to medications; and
  • religious, spiritual or cultural beliefs that could affect your care.

You can give specific instructions about certain medical treatments; for instance, you might feel strongly about whether or not you want to receive life-sustaining measures to prolong your life. These include:

  • Cardio-pulmonary resuscitation, to keep your heart beating;
  • Assisted ventilation, to keep you breathing if your lungs stop working; and
  • Artificial nutrition and hydration.

Before completing the form, first, take time to carefully reflect on the decisions you have to make. Remember, you are putting in place a plan that will determine your future health care. Consider what is important to you, such as being able to communicate with loved ones, or receiving maximum pain relief.

At the end of the day, if I was placed in that actual  “what if situation”, I honestly don’t think I could make the directive to turn off a machine that was keeping my husband alive, and if I did, I know I would think about my decision every day for the rest of my life. So unless my husband makes an AHD, he’s stuck with my decisions!

When I discuss estate planning with client’s, we talk about advance health directives and I provide them with a copy of an AHD.  Personally, I believe that people should be entitled to have their health care carried out to their wishes and I believe that placing that decision into the care of loved ones, without written direction can lead to very difficult decisions being made.  Put your wishes in writing, so your loved ones don’t have to make decisions for you!

More information about Advance Health Directives can be located from the Government Information Website here.  The actual document to be completed can be located here.

As is usual, the information provided here is brief general information and should not be construed as legal advice.  Should you have a legal question or situation, you should engage the services of a lawyer to provide you with advice on the current law specific to your individual circumstances.

 

 

 

 

Employment Law – Who and what are the Fair Work Ombudsman and the Fair Work Commission

This article is written in response to me reading some social media posts by people seeking employment advice and the responses of well-meaning people giving out advice about employment law issues or referring to lay employment law advice available online.

I personally have an unhealthy obsession with “googling” and I love reading articles.  Recipes for cooking dinner with hidden vegetable for the kids – #boom!  Nailed it – found in 30 seconds.  How to get a homemade slime stain out of a school uniform?  Endless information (however, despite trial and error based on information in articles, I can’t get it out).  You get the idea.  The internet is awesome!  But, relying upon articles, advice and information about the law that is not presented by qualified Lawyers on areas of law is scary.

Believe it or not, it is really hard being a Lawyer on social media and restraining yourself from commenting on well-meaning incorrect advice about the law.  Why do we avoid commenting? In brief, simply because it is an ethical minefield for Lawyers that I would need to write a whole new lengthy article on to explain!

I completely understand that people who are having employment issues either can’t afford to expend money on getting legal advice or don’t even know where to start to find out their rights and employers obligations.  However, relying upon non-legal advice is fraught with danger.  Say you have a well-meaning friend who tells you about their issue and their advice to you about your issues from that. Or they tell you about their cousin’s sisters, ex’s, uncle’s,  stepson went through the same thing and then explains what happened and what you should do.  No…….. just no! Stop!  This happens a lot.  Each employment issue is individual in it’s circumstances.  While there may be cases similar, this does not mean the outcome will be the same or similar, at all.

Employment law has such a strict time limit for some of the applications, so let’s try and debunk some myths and present some facts on who, what, when and where the Fair Work Commission and Fair Work Ombudsman come into play in employment law matters.  At the bottom of the article, you will find some links for some useful websites for further information.

Who and what is – The Fair Work Ombudsman (“FWO”)
  • The FWO’s role is to provide a free information service to employees and employers on their rights and obligations (this is not legal advice);
  • The FWO can help employees and employers find correct pay rates and entitlements such as leave, overtime and allowances;
  • The FWO enforces compliance with the Fair Work Act, related legislation, awards and registered agreements;
  • The FWO does NOT deal with unfair dismissal and general protections. The FWO cannot investigate unfair dismissals and unlawful termination application, or investigate workplace bullying and harassment complaints (NOTE – very strict time limits apply for lodging a claim);
  • You can make anonymous reports about workplaces to the FWO;
  • The FWO works with employees and employers to resolve workplace issues by offering dispute resolution services. They do not advocate for either party – meaning they will not take sides through this process.
  • The FWO enforce workplace laws and seek penalties for breaches of workplace law. They also enforce certain orders made by the Fair Work Commission;
  • The FWO provide assistance on issues such as wage disputes and award entitlements;
  • The FWO cannot assist with unpaid super (contact the ATO – https://www.ato.gov.au/Individuals/Super/In-detail/Growing/Unpaid-super/)
Who and what is – The Fair Work Commission (“FWC”)
  • The FWC is the national workplace relations tribunal. You need to be employed under the Federal System (does not include State Government and Local Government Employees) in order for the FWC jurisdiction to apply.
  • The FWC hear unfair dismissal and unlawful termination application, hear bullying and harassment applications, resolve general protection claims, accept and investigate bullying complaints, make changes to pay and entitlements in awards and registered agreements, approve registered agreements, make and change awards and make decisions about industrial action and union activity;
  • The FWC do not provide advice on entitlements under an award or registered agreement or enforce minimum wage and award entitlements;
  • Disputes – if an employee has not been dismissed, but alleges that there has been some other contravention of the general protections provisions, they need to make an application to the FWC to deal with the dispute;
  • Dismissals (general protection) – if an employee believes they have been dismissed and alleges that their dismissal was in contravention of the general protections provisions, they should make an application to the FWC to deal with the dismissal. A general protections dismissal application must be lodged within 21 days of the dismissal taking effect.
  • Unfair Dismissal – of an employee believes they have been unfairly dismissed an unfair dismissal application must be lodged within 21 days of the dismissal taking effect.
  • Bullying and Harassment – Bullying at work occurs when a person or group of people repeatedly behaves unreasonably towards a worker or groups of workers at work AND that behaviour creates a risk to health and safety. Bullying does not include reasonable management action carried out in a reasonable way. Where matters do not resolve through the FWC dispute resolution/conciliation process, the FWC can through a hearing process, make an order they consider appropriate to prevent the worker from being further bullied.

Need advice?

If you can’t afford to obtain preliminary employment law advice specific to your circumstances from a Lawyer, then you may find the below links useful;

FWO: https://www.fairwork.gov.au/contact-us

FWC: https://www.fwc.gov.au/about-us/contact-us/enquiries

Legal Aid Queensland http://www.legalaid.qld.gov.au/Find-legal-information/Work-and-money/Employment/Employment-law-and-your-rights/

Caxton Legal Centre Inc https://caxton.org.au/employment_law_service.html

LawRight (Formerly Qpilch) http://www.legalpediaqld.org.au/index.php?title=Welcome_to_Legalpedia_Queensland

Don’t forget, if you are a union member you should contact your local organiser for advice.  Also, consider if you have a local community legal centre to contact.

I cannot stress enough, that early legal advice is good advice.  Strict 21-day time limits apply to some of the employment law entitlements!

Keep forgetting to pay your SPER notice? Don’t take the “she’ll be right” approach.

sper fines

Let’s be honest, a lot of people forget to pay their fines.  Whether it’s a parking ticket, speeding ticket/traffic infringement etc.  People forget.

You get a notice that your fine has been referred to SPER. It doesn’t seem like a big thing at the time, it’s a little fine, “she’ll be right”.  SPER send you a letter with a nice little administrative fee attached to your current fine and date for payment.  Generally, you get a bit (a lot) annoyed at this point as your fine has gone up significantly.

However, you forget again.  You are distracted because, well, life can get hectic.  SPER send you another notice (they are good like that).  This one states your licence will be suspended on a date they nominate within the letter.  You forget to pay again.

Next thing you know, you are then driving on the road, minding your own business when you get pulled over or stopped for a random breath test or licence/rego check.   The police run a check – BINGO your licence is suspended due to an unpaid SPER debt.   You are issued with an infringement notice and summons to appear in Court.  What!! you say.  Court! You only forgot to pay the fine, why do you need to go to Court?

This is the part that people don’t understand.  When your licence is suspended by SPER you cannot legally drive.  If you are caught driving unlicensed (SPER suspended) the charge will be for unlicensed driving.  It is not simply a matter of paying the SPER amount.  You are required to appear in Court and will be issued with a summons to appear.

Prior to Court, you may need to seek legal advice from a criminal lawyer.  There may be a defence available to you, including but not limited to duress, necessity or insanity.  However, again, you will need to see a criminal lawyer to see if your circumstances meet the criteria for a defence.

Moved house so you didn’t get the SPER notices? That old chestnut is a big reason people try to defend the charge, however, it is not a defence.  The law provides that if you hold a driver’s licence, you are required to notify Transport and Main Roads of a change to your address within 14 days. Penalties may apply if you fail to do so.  So, unless all the notices went out within those 14 days (which is unlikely given they send so many) you are out of luck!  Also, be careful if you use this chestnut as an excuse as you may attract a penalty for failure to update your address

Fine and court appearance

If you do not have a defence, the biggest shock to people who have been charged with unlicensed driving is the mandatory MINIMUM 1-month loss of licence.  Yes, you read that correctly.  Driving while having a licence suspended by SPER carries a mandatory minimum of 1-month loss of licence and the licence suspension can be up to six months!  The maximum fine under this charge is currently $4400.00 or imprisoned for up to 1 year.

The law provides that you cannot apply for a work licence during this time.  In limited circumstances, the Court may agree to hear submissions for a hardship application.  Again, you should see a criminal lawyer as these are very difficult to achieve.

After your licence suspension

After you have done your “time” you will need to apply to get your licence back.  If you contact the Queensland Department of Main Roads unless you have been warned you may be in for a shock!

If you were disqualified from holding or obtaining a driver licence by a Court and you have now served the period of disqualification, despite the fact that you were on an open licence, you will be issued with a probationary licence.  A probationary licence means;

You must:

  • hold the probationary licence for at least 1 year;
  • carry your licence always when driving
  • have a zero blood alcohol concentration when driving.

If at the time you committed the offence that resulted in the disqualification you were under 25, you will also be subject to a late night driving restriction.

SPER has a wide range of powers, if you don’t pay an enforcement order, while this article has been focused on licence suspension, actions against you can include;

SPER Tips

  • If you dispute the enforcement order/infringement notice and the associated fine, you need to contact the relevant agency or court that issued the fine. SPER cannot make the decision to waive a fine issued by an agency or an order issued by a court. SPER is an agent, they are enforcing, not reviewing the circumstances of your matter;
  • Pay the fine, or contact SPER to discuss payment arrangements https://www.sper.qld.gov.au/payment-options/paying-by-instalments.php;
  • Diarise people! Life is busy, but unfortunately, this is not an excuse. Put it in your diary and as a reminder in your phone to remind you to pay!
  • Keep your address up to date with the Department of Main Roads at all times;
  • If you believe that your licence may be suspended by SPER, don’t drive and contact them immediately; and
  • If you believe that you have a defence, get legal advice early!

the information contained within this article is for infomration purposes.  You should seek legal advice specific to your circumstances, where you have a SPER fine.

Why do Lawyers dislike DIY Will kits?

Last Will

 

Why do Lawyers dislike DIY will kits?

Despite contrary belief, it is not because they are cheap so people prefer to use them rather than engage a Lawyer to draft their will.  As you read through the article, you’ll find that fixing DIY wills often results in significant legal fees being paid to a Lawyer, which is what people were avoiding in the first place!

Wills are very complex.  While a DIY kit certainly does not make them look complex and a well-drafted will is clear and concise also making them appear simple, there is no one size fits all for a will.    When you engage a Lawyer to draft your will, you are paying for the advice of how the current law applies to your specific circumstances and how to best plan for the future, taking into account your wishes and the many variable situations that may arise.

I don’t have a degree in dental science, but I can buy the products online needed to do my own filling to save paying a Dentist. Just because you can do it yourself, should you?

There has been an increasing number of legally invalid or deficient wills that have resulted in legal action before the courts and considerable legal fees being paid by the estate (and parties) in these litigations.  Issues that may arise from DIY will include, but are not limited to;

  • Gifting of jointly owned assets that cannot be gifted;
  • Inaccurate or invalid execution of the will;
  • An issue regarding the capacity of the testator;
  • Conditions being placed on gifts (…”Sally can have the house but only if she leaves that husband of hers that I hate”…) which are either offensive or impossible to meet or enforce;
  • Issues relating to children, taxation, superannuation that are not adequately covered;
  • Incorrect description of gifts;
  • The will has been completed (handwritten) by someone other than the testator, which can give rise to issues such as undue influence;
  • Appointing inappropriate executors;
  • The residuary estate is not effectively disposed of in the will resulting in Legislation determining the distribution of the remaining Estate.
  • Failure to consider and protect against family application provisions;
  • The explanation about the distribution of superannuation is ambiguous;
  • The testator failing to dispose of their entire estate leading to a partial intestacy;
  • Failure to deal with agreements such as to buy/sell, mutual wills, binding financial agreements, partnership agreements which need to be considered when drafting your will;
  • Failure to deal with promises made throughout your life (even those made orally);
  • The Testator making handwritten changes to the will which have not been witnessed or dated.

Where there is ambiguity, inconsistency or errors within a will an application to the court will need to be made to determine the proper construction or validity of the will. Your executor and or beneficiaries, who are probably still mourning your passing, then need to engage Lawyers to fix this. This is both emotionally and financially taxing on a person.  Speaking for myself, I can state this is one of the reasons I do not like will kits!

Other factors I like to point out to people regarding will kits (apart from the above);

  • Look for statements such as; this template is drafted by a Lawyer and you don’t need a Lawyer to draft a will. However, if you read the terms and conditions there is a disclaimer relating to the kit not provide legal advice, nor is it a substitute for legal advice. There is generally a further disclaimer relating to them not accept liability for loss and damage because of you using the kit.
  • You are not being provided with legal advice. You are being provided with a template, which may or may not be correctly completed by you.
  • The will kit is basic. It does not consider the many factors relevant to our modern lives, businesses and blended families.
  • Superannuation does not automatically pass to your estate, you need to deal with it separately. Depending upon who you nominate to receive your superannuation, there may be tax implications.
  • The consumer watchdog “Choice” reviewed several DIY will kits and noted, they were often confusing and had basic instructions contained within.

So, why don’t Lawyers like DIY will kits? I can’t speak for the whole legal fraternity, but some of my reasons are as follows;

  • People are making a document when they don’t understand the law surrounding their decisions and if they can even make that direction. It’s your assets! You need to know what the laws are and understand them;
  • The wills that come out of these kits are ambiguous, can be misinterpreted and therefore challenged, or even worse, are invalid;
  • The emotional and financial strain on the family/friends left to deal with the will could not come at a worse time!
  • If the will cannot be fixed, the deceased will be deemed to die intestate (which means without a will) which reverts to the state succession law for the distribution of the assets; and
  • Lastly, the expense to fix them eats into the estate and beneficiaries share of the estate reduces, which is not what the Testator wanted or intended.

At the end of the day, while will kits are cheap, they inevitably are very risky.  They often result in Lawyers being paid legal fees potentially totalling many thousands of dollars to fix them, rather than comparable, the small fee associated with engaging a Lawyer for estate planning in the first place.  As the old saying goes, you get what you pay for!

 

School aged young workers and employment – what do you know about it?

Young worker

A few months ago, our eldest daughter (who is 15) started her first paid job.  It was a bittersweet moment.  My bank account was grateful and thankful to the employer for providing her with a job.  But, my head and heart felt concerned and anxious about how our eldest baby will experience her first job.

Our eldest daughter has been tasked with 7 years of emptying the dishwasher as her one chore.  Now, this is paid work within the home so I expect (as any employer would) for the job to be done.  However, sure enough, I have had to remind her to unload said dishwasher nearly each and every one of those days …for 7 years.  Hence my concern regarding her entering the workforce.  As the relationship dynamics are different, would she perform well? What if she doesn’t? How will her employer deal with her? And my “inner protective lioness”  moment of how is she going to deal with rude customers?

Fast forward to now.  She commenced her employment with an employer who has an impressive training technique.  She felt comfortable enough with the trainer and manager to ask a lot of questions during her training.  She likes her job.  Her employer likes her work performance and I like and appreciate her employer’s style.  She has dealt with rude customers in a way in which I am super proud! On this occasion, it all worked out.

In contrast, I have heard about the other end of the spectrum with inadequate training, questionable verbal interactions and bullying of young workers. Employers must take reasonable steps to ensure that a child (a young worker) is not subject to deliberate or unnecessary social isolation or any behaviour likely to intimidate, threaten, frighten or humiliate them.  Apart from rupturing young workers confidence, this is a serious health and safety risk.

Employing young workers is beneficial to businesses as it significantly reduces wages.  However, this also means that an employer must understand and adapt to the special characteristics involved.  The special characteristics of young workers include, but are not limited to;

  • The size of the person and physical maturity;
  • Their general behaviours and maturity;
  • Their work experience and training;
  • Their confidence to raise problems with their supervisors;
  • Their ability to make mature judgements about their own safety and the safety of others;
  • Their ability to cope with unexpected and stressful situations; and
  • Special characteristics that mean young workers are more likely to be affected that adults in the same situation.

Each State and Territory have legislation dealing with child employment which supplements the Fair Work Act 2009. This article is dealing specifically with the Queensland Child Employment Act 2006, the Child Employment Regulation 2016 (commenced 1 September 2016) and school-aged workers.

The common misconception is that children must be 14 years and 9 months in which to seek and obtain employment.   Queensland legislation generally prohibits (unless approved) the employment of young workers younger than 13 years of age.  Prior to age 13 approved circumstances include: for entertainment employers, family business and some forms of supervised employment such as deliveries and charitable collections.

Hours of work

For those young workers who are still at school there are restrictions on hours that can be worked on a school day and non-school day:

  • During a school week, a school-aged child can work a maximum of 12 hours per week;
  • Work on a school day is a maximum of 4 hours only; and
  • On days that children are not required to attend a school they can work a maximum of 8 hours, but again this is capped for a 12 hour week during school weeks.

During a non-school week, a school-aged child can work a maximum of 38 hours.

Times of work

Restrictions are in place regarding the times for work:

  • School-aged and young children cannot work between 10pm and 6.00am.
  • Those children between the age of 11 and 13 years (that carry out delivery work) cannot work between 6pm and 6am.

Children working in a family business are not subject to these restrictions, however family businesses should be mindful of the power the Director-General of the Department of Justice and Attorney- General’s office has to issue a work limitation notice (where it is reasonably believed that the work may interfere with a child’s schooling or be harmful to their safety, health, physical, mental or social development).

Business Owners

Business owners who should already be familiar with our Federal workplace laws should also review the Child Employment Act 2006, Child Employment Regulation 2016, the Child Employment Guide and Children and Young Workers Code of Practice 2006.

There is a number of published materials available online to assist employers, however, these should be tailored specifically to the workplace and the young workers employed.

The Fair Work Ombudsman has published the “Best Practice Guide – An employer’s guide to employing young workers.” Located here.

Queensland Work Health and Safety has published guidance material.  Located here.  In addition to a “Young Worker Safety Toolkit” located here.

Practical tips for working with young workers include: invite interactions, set short terms goals, tailor training to cultural, literacy and learning needs, provide a thorough induction and continued supervision, check for understanding and provide positive affirmations on their work progress.  If you are particularly keen, try reverse mentoring! Many young workers are highly skilled in tech and social media skills which may be beneficial to your business.

Parents/Guardian

Your school-aged or young child worker will need you to complete a parents/guardian consent form.   A parent/guardian must ensure:

  • they are present if it is their baby that is employed;
  • they provide a parent’s consent form to the employer before employment can occur;
  • they inform the employer if their child’s school hours change by submitting a parent’s consent form within 14 days of the hours changing.

Parents and guardians should familiarise themselves with the law surrounding young workers employment to ensure that both their child’s rights and obligations are being met.

The Queensland Department of Justice and Attorney General has published a “Child Employment Guide” located here.  By law, this guide is required to be displayed conspicuously in a child’s (young workers) workplace where it can be easily accessed by the child to read (by the employer).

The Fair Work Ombudsman has published a “Best Practice Guide – A Guide for young workers” located here.

The Regulations also provide for circumstances when your child is ill, parent/child communication during working hours and employers requirement to provide notice.

Young entertainment workers rights and obligations are not covered in this article.  This article provides very brief general information and does not cover all aspects of young workers in employment.  This article was written in 2016 qnd the law may have changed since then. Should you have a legal question or situation you should engage the services of a lawyer to provide you with advice on the law specific to your circumstances.