In light of the Mother’s Day festivities last week, it is important to remember that 1 in 2 Australian mothers having experienced pregnancy-related discrimination in the workplace and to consider whether your rights as a new parent are being met.
What is parental leave and when can you take it?
Parental leave gives you the right to return to your old job and your absence can be paid or unpaid depending on your entitlements.
You can ask for parental leave when you give birth, your spouse or de facto partner gives birth or when you adopt a child below the age of 16. If you are adopting a child, you are also allowed up to 2 days of unpaid leave before the adoption to attend the required examinations.
To qualify for unpaid parental leave, you must have worked for your employer for at least a year before the date of birth, adoption or when the leave starts, and you should be responsible for the care of the child when it arrives.
How can you get paid parental leave?
As an employee, you can get both Parental Leave Pay from the Australian Government and paid parental leave from your employer. This does not affect your entitlement to unpaid parental leave.
You qualify for the government scheme and hence, can get up to 4 and a half months of paid leave at the national minimum wage if:
- You earned less than $150 000 in the last financial year,
- Are on leave or unemployed while receiving parental leave pay,
- Have done enough work in the 13 months before to pass the work test and
- Are the primary carer for the child
Your employer can provide paid parental leave in agreements, contracts and workplace policies and its details depend on the specific agreement, contract and policy.
Pregnant Employee Entitlements
Pregnant employees have entitlements which include:
- Special Maternity Leave: If you have an illness due to pregnancy or if your pregnancy has ended after 3 months due to a miscarriage, termination or stillbirth you can take this leave until you recover from the illness or you feel able to work again.
- Safe job: If your job is unsafe for you due to your pregnancy, you are entitled to move to a safe job which provides you with the same wage, hours and benefits even if you are not eligible for unpaid parental leave
- Safe Job Leave: If your place of employment has no safe jobs, you are entitled to a paid safe job leave if you are entitled to unpaid parental leave.
Your employer may need to see a medical certificate to prove illness or necessity for a safe job.
Discrimination
Ultimately, you cannot be discriminated for being pregnant through being fired, demoted or treated in a different way. If you feel that this is your situation, it is crucial to remember that you should contact the Fair Work Commission within 21 days to protect your rights.
If you have any queries in relation to the issues raised in this article, please do not hesitate to contact us on (02) 8999 9837, or fill out the enquiry box and we will get back to you ASAP.
What is workplace bullying?
Bullying in the workforce is defined as repeated and unreasonable behaviour directed towards a worker that created a risk to health and safety. This definition is inclusive of acts of verbal abuse and humiliation, social isolation, withholding information and spreading rumours.
It is an unfortunate reality that young people are most likely to be the target of bullying and sexual harassment in the workplace. Half of all Australian employee’s experience workplace bullying and an overwhelming 40% of these employees are subjected to bullying in the first few years of the career.
Effects of workplace bullying?
The effects of workplace bullying do not end when the victim leaves the office.
Being a victim of bullying can cause physical and psychological health problems, including:
- Stress
- Anxiety
- Panic attacks
- Trouble sleeping
Bullying also effects a victim’s ability to perform their jobs to the best of their ability. Performance issues include
- Having trouble making decisions
- An incapacity to work or concentrate
- Lower productivity
- in 2010, the Productivity Commission found that bullying at work costs Australian organisations between $6 billion and $26 billion a year in lost productivity - Loss of self-esteem
- Erosion of employee loyalty and commitment
- Increased use of sick leave, health care claims and staff turnover
How to combat bullying in the workplace?
If you are an employer, it is always best to confront workplace bullying and maintain a bullying-free workplace. You have a legal responsibility under Occupational Health and Safety and anti-discrimination laws to provide a safe workplace for your employees. Employers should offer education opportunities for all employees that are aimed at fostering a positive workplace environment.
If you are a victim of workplace bullying, the first step is to recognise that you do NOT have to suffer. Find your voice and speak up. Everyone has a right to work free of bullying and harassment. There are also the following steps you can take if you are experiencing bullying in the workplace
- Check your workplace’s bullying policies and complaints procedure.
- Document the behaviour, diarising incidents.
- Talk to someone you trust.
- Talk to the bully if you feel physically safe and confident enough
- If the bullying continues, follow the workplace complaints procedure for making a complaint.
- It is also a good time to check your own physical and mental health as workplace bullying can seriously harm mental health with depression, psychological distress and emotional exhaustion.
- If you have made a complaint at work and no adequate steps have been taken to stop the bullying from occurring, you should contact the Fair Work Commission or the Commonwealth Fairwork Ombudsman. If the bullying is violent or threatening, it may be a criminal offence and you should contact the police.
There are also several services available to people who are feeling depressed, stressed or anxious as a result of bullying behaviour. They include;
National Centre Against Bullying
If you have any queries in relation to the issues raised in this article, please do not hesitate to contact us on (02) 8999 9837, or fill out the enquiry box and we will get back to you ASAP.
The age of automation, much like the industrial revolution, will have an impact on employment like never before.
A study conducted by the McKinsey Global Institute approximates that 22 percent of a lawyer’s job and 35 percent of a law clerk’s job can be automated. Artificial Intelligence (also known as AI) today, can automatically categorise documents, extract entities and find similar documents. It can even learn concepts, predict possible outcomes and interview a client with better results due to its lack of human judgement and bias.
In a field with an over-supply of graduates and a billable hours model, this does seem concerning in relation to the availability and profitability of a career in law either as a paralegal, legal clerk or a lawyer should AI prove superior to the human mind.
Despite growing anxiety surrounding job disposability, AI, for the most part, merely replaces tasks and alters jobs. It takes over mundane roles like poring over piles of documents meticulously for small details and improves the cost-productivity of the profession with such tasks being accomplished almost instantaneously. Hence, it makes legal help more accessible for the masses with a reduction in its cost due to the inherent billable hours structure of the legal field.
Moreover, AI also bridges the gap between boutique firms and large firms, caused by the disparity in resources. AI tools like ContractControl, are used by boutique firms like MIA Contract Lawyers in Melbourne, to efficiently manage contracts instead of only looking at them as a final resort when problems arise, as done by larger firms.
AI opens the legal industry to more innovative methods of working. Australian businesses like LawPath have managed to provide clients with over 700 lawyers with most of the work and contact remaining online. This not only increases access to legal help for clients in more remote locations or with disabilities, it also provides more career opportunities for those in the field.
Ultimately, rather than a phenomenon to be feared, AI should be welcomed into the legal field as it improves the quality and productivity of work. Rather, it is time to focus on training paralegals, legal clerks and lawyers in new ways to cope with the rising age of automation.
Client legal privilege, also called legal professional privilege, and known as attorney client privilege in the USA, protects confidential communications between a lawyer and client. This means that the law and the courts cannot require your communications or documents to be disclosed, and your lawyer is under an obligation to keep that information confidential, like a doctor.
What is it
There are three requirements to client legal privilege
- There is a professional relationship between a lawyer and the client: once you have signed a Cost Agreement or retainer there is a professional relationship.
- There is confidential communications, or documents prepared by the lawyer or client, and even third parties in some instances.
- The communication or document is created for the dominant purpose of legal advice, or with reference to litigation
The privilege belongs to the client, not the lawyer, which is why in NSW it is now called ‘client legal privilege’ instead of legal professional privilege.
How can you lose it?
A client can waive client legal privilege by knowingly and voluntarily disclosing the communication or document. However, there are also instances where you may lose privilege in court proceedings, for example if the communication or document is prepared in furtherance of a fraud.
If the privileged document or communication is accidentally disclosed, it will not be taken to be a 'knowing and voluntary waiver' of privilege. Further, if the mistake is ‘obvious’ and should have been noticed by the party receiving the document or communication, privilege may not be lost.
Why do we have it
Privilege protects a client’s privacy and promotes access to justice. The reason for this privilege is to empower clients to provide full instructions without fear of the information being disclosed. This results in lawyers being able to provide considered and complete legal advice and the most effective representation. There is a public interest against disclosure of information and for privilege, and it ensures proper, accurate conduct of litigation with lawyers and clients who are honest and open with each other.
Client legal privilege may also be considered a human right. In 1983, the High Court said that privilege is an important element in the protection of the privacy and liberty of the individual (Baker v Campbell (1983) 153 CLR 52).
What does it mean for you
With the protection of client legal privilege, it is important to be open with your legal representation. They cannot disclose the information that you provide. Full disclosure from you to your lawyer is important for you to receive the best legal advice and representation.
Should you have any queries in relation to the above article, please do not hesitate to contact Freedman & Gopalan Solicitors by calling us on 02 8999 9837 or by filling out the enquiry form.
Have you been left out of the ‘Will’ of a loved one, or do you feel as if the gift left to you is inadequate? Unfortunately, this is a relatively common story.
The law has responded to this by allowing eligible individuals to make a Family Provision Claim under the Succession Act 2006 (NSW). The Act defines an eligible person to include, a spouse of the deceased person, a de facto partner, a child of the deceased, a former spouse, the deceased persons grandchild, or a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death. For more information regarding who can make a Family Provision Claim, click here to visit our previous article.
Despite children of the deceased persons being specifically included under the statute, adult children still face difficulty when making a claim.
Take, for example, the recent case of Olsen v Olsen [2019]. Here, a 61-year-old adult son made a claim for provision from the estate of his late Father, after his Father failed to include him in his Will. At the end of his life, Olsen’s Father had left his entire estate to his second wife, and their three children. Unfortunately, no provision was made for the plaintiff. Mr Olsen claimed that he was an entitled person under the statute and provisions should therefore be made for him from his Father’s estate. The Court rejected Mr Olsen’s claim, ultimately finding that Mr Olsen was ‘able to maintain and support himself’ and thus, intervention by the Court was not warranted.
There is thus the prevailing question, when can an individual make a claim for provision? According to section 59 of the Succession Act 2006 (NSW), the Court may make a family provision order in favour of an eligible person, where the Court deems it necessary for that person’s proper maintenance, education or advancement in life or if the court finds that person to be have been an dependant or if the deceased led that person to believe that he or she would be left with a portion of the deceased’s estate.
If you know someone having a possible right to an estate or hasn’t been included in someone’s will, please do not hesitate to contact Freedman and Gopalan on 8917 8700 or by filling out the enquiry box.
Has someone failed to pay money that is owed to you?
Here is what you could do;
- You attempt to communicate with the debtor in order to understand why the debt has not been paid.
- You send an email letting the debtor know that you would initiate legal proceedings.
- Even after giving the debtor sufficient time, the debtor has not paid the money owed to you then you proceed to contact a law firm and instruct them to proceed further
- The law firm will then issue a “Letter of Demand” advising the debtor that legal proceedings will commence if the debt is not paid within a given time limit.
- If the debt is not further paid, then, we need to determine the jurisdiction in which you need to commence proceedings. The Local Court determines matters where the money owed is not more than $100,000. The Local Court has two divisions,
- The Small Claims Division which hears claims upto 10,000;
- The General Division which hears claims over $10,000 only upto $100,000.
- The District Court can hear matters up to $750,000 and the Supreme Court determines debt recovery matter of higher amounts. Each court has their own specific procedures and court rules that apply.
- To commence legal proceedings, a Statement of Claim is to be filed and served on the debtor.
- The debtor has to file a Defence within 28 days of the date of service of Statement of Claim.
- In the event a Defence is not filed by the Debtor within 28 days, a ‘Default Judgement’ can be entered against the debtor.
- If a Defence is filed then the matter may be listed for a Pre-trial review or Callover in Local court and an attempt is made to resolve the matter between parties, before the matter is listed for a hearing.
- If the matter is still not resolved and the matter is listed for Hearing a timetable will be set for the filing of evidence, affidavits, expert reports etc.
- And then a Judgement will be made by an Assesor or an Arbitrator or a Judge after scrutiny of the Affidavits, evidences filed, expert reports etc.
- Unfortunately, in some circumstances even when Judgment has been obtained the Defendant may refuse to pay.
- You should send the Judgment Debtor an Examination Notice Form to complete and provide you the same, along with any documents to be able to ascertain the debtor’s ability to pay. Then you may be able to get the sheriff to seize and sell.
- If they fail to return the completed form and documents, you can have the matter set down for an Examination Hearing by filing and serving an Examination Order.
- If the Judgment Debtor fails to attend, then a warrant can be issued for their arrest.
- You then also have the option to commence Bankruptcy or Winding up proceedings depending on the size of your debt amount and who your debtor is.
If Freedman and Gopalan can be of any assistance, please do not hesitate to contact us on 02 8917 8700, or by filling out the enquiry form on this page.
Prime Minister Scott Morrison has warned social media companies of potential changes to the law which will impose severe penalties if they do not make changes to stop the spread of terrorism-related material on their platforms.
The proposed potential changes to the Privacy Act force companies such as Facebook and Twitter, to remove terrorist footage as soon as they are notified that it has been uploaded on their platform. The longer it takes the company to remove the footage, the heavier fine they will face. The current penalty of $2.1 million for online platforms that seriously or repeatedly breach privacy laws will be increased to $10 million. They could alternatively be charged three times the value of any benefit obtained by missing information, or 10% of their domestic turnover, whichever figure is greater.
As well as punishing the companies, company executives based in Australia can be found personally liable. The new law is triggered by the Christchurch terror attacks on the Mosques, where the terrorist live streamed the massacre of 50 innocent people.
What is a De Facto Relationship?
According to the Family Law Act 1975, a de facto relationship exists when two parties have been living together on a genuine domestic basis. A relationship is not a de facto relationship if, however, any of the parties is legally married to one another or if they are related by family.
Binding Financial Agreement
For individuals considering entering a serious de facto relationship, it is important to understand the implications of such an arrangement. It may be worthwhile to discuss any financial or relevant issues with your partner.
We would also highly recommend for you to consider arranging a formal Binding Financial Agreement (commonly known as a ‘pre-nup’). This will safeguard your assets in the event that the relationship breakdowns, and you will need to organise the assets accordingly. Our team can assist you in deciding whether a pre-nup is right for you and can help you prepare the documentation.
Property Settlement and Maintenance after the Relationship has broken down
In order to make a claim for property settlement or maintenance to be made with respect to a de facto relationship, the court considers the following: -
- That the period of the de facto relationship is at least 2 years;
- That there is a child of the de facto relationship;
- That the relationship is or was registered under a prescribed law of a State or Territory.
- That significant contributions were being made by one party and the failure to make an order would result in a serious injustice.
In the event that your de facto relationship breaks down, it is imperative that you understand your entitlements from the relationship.
Please do not hesitate to contact us to discuss your rights on 02 8917 8700 or fill out the enquiry box, and we will get back to you ASAP.
Separation is often a ‘catastrophic loss’ to either one or both parties. Adjusting to separation presents complications on many levels, such as self-esteem issues, financial security, friendships, loss of a family unit and the transition to living alone.
One party may be ‘blindsided’ by the separation when they find their partner/Wife/Husband has left a note on the kitchen bench stating that they have had enough of the marriage/relationship, left the family home to their parents and have also taken the kids.
Even parties who agree to amicably separate find it difficult to adjust to their new surroundings/environment, and emotions are fuelled when a party changes their position regarding the division of property despite both having agreed for ‘one to keep the house and pay the other out’.
Whilst many cases are settled outside of Court, stress and anxiety increases exponentially when parties are required to go to Court, especially matters involving children.
Emotions may fluctuate on a day-to-day basis or week-to-week basis. The thought of the family law proceedings weighing on one’s mind whilst they attempt to work or attend social outings affects the atmosphere and attitude of a person.
In the event that you do find yourself in this ‘pressure cooker’ environment, avoid substance abuse and reverting to alcohol to ‘ease’ the tension. Remember to focus on your psychological, emotional and physical well-being by seeking professional help with mental health professionals and doing physical exercise.
Whilst family lawyers make every attempt to make the separation process as smooth as a transition as possible and provide support in times of need, they are not trained counsellors/psychiatrists.
It is important to remember that stress is normal, but if you feel stressed and anxious all of the time, this may lead to depression and other mental health issues if not addressed.
Should this be the case, there a number of organisations that offer support and advice, including but not limited to:
Family Relationship Advice Line
If you have any queries in relation to the issues raised in this article, please do not hesitate to contact us on (02) 8999 9837, or fill out the enquiry box and we will get back to you ASAP.