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Indemnity costs awarded when court finds ‘right of entry permit holders’ wrongly charged with trespass

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.
 
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 today’s writer, Employment & Industrial Law Solicitor, Kris Birch.
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Can I have a support person at a workplace disciplinary meeting?

Disciplinary meetings
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.
 
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 Hall Payne Lawyers.
The post Can I have a support person at a workplace disciplinary meeting? appeared first on Hall Payne Lawyers.

My employment contract has a Restraint of Trade. How do I ensure it’s reasonable?

Employers will often include a restraint of trade clause in their employment contracts as a way of protecting their interests during the term of employment or after termination. Most disputes involving these clauses commonly arise after termination of employment and the employee has moved on or, attempted to move on.
The core legal principles applicable to restraint clauses operate in essentially the same manner during the employment as they do after termination. In this article, those core principles are explained so that you may be better informed before considering your next job.
What is a Restraint of Trade?
A restraint of trade clause in an employment contract is intended to operate as a provision which seeks to restrain an employee’s capacity to undertake work during or after the termination of the employment.
Interestingly, in accordance with the common law doctrine of restraint of trade, such a clause will be unenforceable at law unless the employer can prove that the restraint was ‘reasonable’ to protect the employer’s legitimate business interests at the time the restraint was agreed.
Reasonableness of restraint
In order to determine whether a restraint clause is ‘reasonable’, the courts will engage in an assessment of the need of the employer to protect their legitimate business interests on the one hand, against the right of the employee to earn a living.
Such an assessment will consider the following main points:
1. Whether the employer has a legitimate protectable interest
A court will not enforce a restraint of trade clause if the clause merely operates to protect the employer from competition from an ex-employee, or to prevent a valuable worker from being employed by someone else. Protection will be granted where it can be established that:
… the employee’s personal knowledge of an influence over the customers of his employer, or such an acquaintance with his employer’s trade secrets as would enable the employee, if competition were allowed, to take advantage of his employer’s trade connection or utilize information confidentially obtained.
Ultimately, it will be a balancing act by the courts as to whether the employer has established the existence of a legitimate protectable interest.
2. Whether the restraint is reasonable in its scope of the protection of that interest
The duration of the restraint, the geographical area in which the restraint is to have effect, and the nature of the activities the restraint seeks to control are all factors which are considered in determining whether the scope of the restraint is reasonable.
Case Example
In 2009, the New South Wales Court of Appeal held in Miles v Genesys Wealth Advisers Ltd [2009] NSWCA 25 that a clause which sought to restrain a former employee for two and a half years was upheld. The court decided that the restraint was reasonable because:

The former employee had been an executive;
the information received by this former employee whilst employed by Genesys was at a high level of confidentiality and it directly equipped a competitor to attack Genesys’s weak points in its relationships with Member Firms and to build upon them; and
the former employee’s potential to damage Genesys by using the confidential information and by soliciting its Member Firms was very high.

In 2016, the Victorian Supreme Court held in Just Group Ltd v Peck [2016] VSCA 334 that a clause which sought to restrain a former employer for two years from taking up a new position as Chief Financial Officer for another business was not upheld. The Court decided that the restraints were not reasonable because:

it went well beyond that which was reasonable to protect Just Group’s legitimate interests;
Just Group had not established that the other businesses the former employee intended on working for were in fact competitors; and
the restraint periods ranging between 12 months and 24 months applied to both Australia and New Zealand and therefore were considered unreasonable.

Conclusion
All restraint clauses are presumed to be void and unenforceable. However, that presumption may be rebutted if there are special circumstances which demonstrate that the restraint clause is imposed to protect the legitimate interests of the employer, the restraint clause does no more than is reasonably necessary to protect that legitimate interest in its scope and the clause is not unreasonable in the public interest.
Have you got a restraint in your employment contract that you believe is unreasonable? Do you want a restraint clause reviewed before you sign your new employment contract? Feel free to get in touch directly with today’s blog writer, Solicitor in Employment Law, Kathryn Lohman.
 
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 Hall Payne Lawyers.
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What is the high income threshold and how might it affect me?

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 $145,400.00 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.
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.
Need Help?
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. You can get in touch directly with today’s blog writer, Ellie Bassingthwaighte.
 
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 Hall Payne Lawyers.
The post What is the high income threshold and how might it affect me? appeared first on Hall Payne Lawyers.

How do I get a divorce in Australia?

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.
 
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 Gary Su at Hall Payne Lawyers.
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