Issue 24 - January 2006Written workplace polices can prevent claims and assist in dismissing troublesome employees Workplace policies It is prudent practice for employers to implement risk management strategies to combat and prevent claims made by employees. Creating and enforcing workplace policies is one way in which you may be able to effectively prevent or manage such claims. The purpose of workplace policies is to place both the employer and employees (or prospective employees) on notice of certain things such as prohibited conduct. Employers who create procedures and policies to ensure they uphold their statutory obligations towards employees or prospective employees can usually prevent any serious problems arising. If problems do arise however, the employer is usually able to prove they upheld their legal duty by showing compliance with an established written policy. The following is a non-exhaustive list of topics that employers may wish to implement a policy in respect of:
Equal employment opportunity Workplace discrimination and harassment Occupational health and safety Email & internet use Drug & alcohol use Mobile telephone use Dress codes Annual leave and sick leave Dispute resolution Counselling and disciplinary procedures Privacy Redundancy
Workplace bullying and violence
Workplace policies such as these are a valuable tool when faced with issues such as workplace bullying. Bullying in the workplace is an increasing problem for employers and employees alike. At present, there is no direct remedy for conduct that amounts to bullying. Workers must prove that the bullying falls within one of the grounds of discrimination (for example sex, race or age). Alternatively, should the bullying turn into violence, workers must rely upon the criminal law system to deliver justice. By creating a “Workplace Bullying and Violence Policy”, employers can put into place steps to prevent bullying and protect themselves in the event of a claim. Employees benefit too as, their health and safety are protected. If we can assist you in relation to the preparation of tailored workplace policies for your workplace or in relation to any employment law matter generally, please telephone Kevin Dwyer or Dean Groundwater or email kevin@wmdlaw.com.au or dean@wmdlaw.com.au How to search for and lodge unclaimed monies Unclaimed moniesUnclaimed money in New South Wales is held by the Office of State Revenue (OSR). Monies held by the OSR in this regard include dividends, unpresented cheques, distributions from liquidations, sale proceeds, royalties, unclaimed superannuation benefits (since 1 July 1997) and retirement savings account benefits. These unclaimed monies are deposited by employers and entities such as government agencies, superannuation funds and local councils because they have not been able to locate and return the money to the relevant owners. You can search for money held by OSR from 1996 on the OSR's website. Money collected before 1996 may be listed in back issues of the New South Wales Government Gazette. For information about lost superannuation benefits, contact your superannuation fund directly or visit the Superannuation Lost Members Register on the Australian Taxation Office's website. If you are searching for unclaimed money from banks, credit unions and building societies or life insurance and friendly societies, you should visit the Australian Securities and Investments Commission's (ASIC) website. Unclaimed money of this nature is transferred to ASIC after 7 years. If following your search, you find unclaimed life insurance money, you ought to lodge your claim with the relevant insurer. The ASIC website contains a list of all life insurance companies and friendly societies that have sent unclaimed money to ASIC. The list gives the name of the original company and the current name and contact details so that companies that a change of name does not preclude recovery of the monies. Lodging unclaimed money All enterprises in New South Wales holding unclaimed money as at 30 June in any year must lodge an Unclaimed Money Return with OSR by 31 October of that year. The return must list all unclaimed money worth more than $100 held in an account which has been dormant for 6 years or more. The return statement must be in the specified electronic format, validated and accompanied by a cheque for the total value of the return. If we can assist you in relation to lodging or searching for unclaimed monies, please telephone Craig Pryor or email craig@wmdlaw.com.au. Evidence of an agreement reached in mediation is no longer privileged Revised powers of courts to order mediation under the Civil Procedure Act 2005Prior to the introduction of the Civil Procedure Act 2005 (CPA) on 15 August 2005, both the Supreme Court and the District Court had the power to make orders requiring parties to undergo mediation. Previously, the Local Court's power in this respect was restricted only to matters where the parties consented to this path. However, the CPA has made significant changes to court ordered mediation, including giving the Local Court the power to order proceedings to mediation whether or not the parties consent. The CPA also makes 2 significant changes to the mediation regime. Section 29(1) provides that parties who have undergone mediation may apply to the Court for orders giving effect to an agreement reached at mediation ordered by the Court. While this provision is not new, a new section 29(2) has the effect that on such an application, “any party can call evidence from the mediator and any other person engaged in mediation, as to the fact that an agreement or arrangement has been reached and as to the substances of the agreement or arrangement.” The combined effect of these provisions enables parties to a dispute to give the Court evidence of an agreement reached at mediation (where it was previously inadmissible due to privilege), in order to make that agreement binding. The second significant change gives a mediator to whom a Court renders proceedings the same protection and immunity as a judicial officer. These new CPA provisions are also part of the continual move to making alternative dispute resolution an efficient and cost effective alternative to the court system. For anyone considering litigation, the CPA changes mean that mediation should be considered not only as an alternative, but another likely step in the litigation process, and that legal advice should be sought before participating in any formal or informal settlement discussions with the other party. For any further enquiries regarding changes to the Civil Procedure Act 2005, mediation or other alternative dispute resolution options generally, please telephone Louise Stone or email louise@wmdlaw.com.au. Parents may be liable to pay adult child support in certain circumstances Child support for children over 18The liability of parents to contribute to the maintenance of children is normally limited to children under the age of 18 years. The Child Support Legislation imposes a duty on the part of parents to contribute to the cost of maintaining children under 18, however, the Family Court can, in some circumstances, impose a liability to maintain children even after they have turned 18. One of the most common grounds for making such an application under the Family Law Act is that it is necessary to have an order made to enable the child to complete his or her education. The Court will look at the financial circumstances of the child in deciding whether to make an order. The Court has consistently said that lack of contact between a child and the parent from whom the child is seeking maintenance will not be relevant in deciding whether the obligation is made out. If you need assistance in relation to child maintenance payments for children over 18 or if you require any advice or assistance regarding Family or Property Relationships Act Law, please telephone Greg Dickson or email greg@wmdlaw.com.au. New tool for parents may also assist businesses Technology updateA new device will soon be available which allows parents and guardians to remain in constant contact with their children, and may be particularly useful for separated parents experiencing difficulties with phone contact. The device may also benefit employers whose employees work out of the office on a daily basis. Utilize and Mobiles2go have developed the i-Kids handset and subscription which uses the GSM network for mobile phone services and GPS for tracking the phone's user. The i-Kids service provides a controlled environment by only allowing 4 pre-programmed numbers to be called. The service also provides the real-time location of the user and a notification if the user has left a pre-determined "Safety Zone". If you would like more information on the i-Kids handset and subscription, please telephone Utilize on 1300 666 676 or email info@utilize.com.au.
This newsletter is intended to provide general information and is current as at the date of publication only. This newsletter does not, and is not intended to, provide legal advice to any person. Recipients of this newsletter should not alter their position (or refrain from altering their position) on the basis of any information contained in this newsletter and should always obtain appropriate legal advice from a qualified lawyer. Receipt of this newsletter is not intended to and does not create any solicitor-client relationship.
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