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Termination of Weekly Benefits – Don’t ignore a Section 39 Notice!

Have you received a notice from your insurer advising that your weekly workers compensation benefits are coming to an end later this year?

The current legislation provides that for injured workers who do not suffer from greater than 21% whole person impairment, entitlements to weekly benefits cease after 260 weeks of weekly compensation payments.

For workers injured prior to the 2012 NSW Workers Compensation Scheme amendments, this 260 week period will cease near the end of 2017.

Workers approaching the end of this period should receive a Section 39 Notice from their workers compensation insurer inviting them to attend an independent medical examination. This will assist the insurer to determine whether the worker is eligible for ongoing payments after 260 weeks (i.e. whether you have over 20% whole person impairment).

It is important to remember that this determination is not necessarily final. Workers are entitled to challenge the medical assessment, at no cost to them.

The Workers Compensation Independent Review Office (WIRO) can provide funding for legal advice and to meet the expenses of challenging an insurer’s assessment.
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Your weekly compensation benefits

If you have been injured and made a workers compensation claim, you may be receiving ongoing weekly payments from a workers compensation insurer.

If the insurer has disputed liability for your claim, you may still be entitled to receive weekly benefits. You can speak to a compensation lawyer who will advise on challenging the insurer’s decision.

Either way, it is important to be aware of the workers compensation law in this area to anticipate how and when your weekly benefits may change over time.

First Entitlement Period

The law states that, where a worker is unable to work in any capacity as a result of their work injury, they are generally entitled to 13 weeks of compensation payments at 95% of their pre-injury earnings.  Where the worker is able to work in some capacity during this time, the amount of those earnings will be deducted.

Second Entitlement Period

After 13 weeks, for the second entitlement period of 14-130 weeks, a worker who continues to have no working capacity is generally entitled to weekly payments at 80% of their pre-injury earnings.
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Bull rider successfully claims for rodeo injury

A bull rider who sustained severe injuries was recently successful in a claim for workers compensation, where his industry insurance coverage was inadequate.

Having enjoyed early rodeo success, the claimant had planned to move to the USA to pursue a bull riding career. That dream came to a sudden end just before his 19th birthday.

He was participating in a public performance in Camden when he was thrown from a bucking bull. His head collided with the bull’s and his ear was torn away by its horn.

The doctors at that time did not expect him to survive the incident. He pulled through, but the injury left him with a traumatic brain injury and the need for full time care.

As the industry insurance coverage provided an inadequate $50,000 for his injuries, the claimant’s compensation lawyers approached the case with a strategy that had never been tested before. The compensation lawyers argued that the claimant met the definition of a worker under the workers compensation legislation – specifically, that his bull riding classified him as an ‘entertainer’ under the deemed worker provisions of the Workplace Injury Management and Workers Compensation Act 1998.
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Employment Law – New Financial Year Changes

What every employer MUST know for 1 July 2017

With the commencement of a new financial year, it brings with it important changes and new rates which will apply from 1 July 2017.

NEW! High Income Threshold (HIT)

With the HIT:

  • it is expected to increase to $143,500 (subject to formal confirmation by the FWC)
  • it impacts:
  • who can make a claim for unfair dismissal (for those not covered by a Modern Award or to whom an enterprise agreement does not apply)
  • the maximum amount of compensation payable in an unfair dismissal claim
  • those on a ‘guarantee of annual earnings’ (a Modern Award does not apply to an employee whilstever this guarantee is in place provided it continues to meet the relevant legislative requirements)

NEW! Modern Award Increases

With Modern Awards (including enterprise awards):

  • minimum wages increase by 3% (starting on the first full pay period on or after 1 July 2017)
  • absorption of wage increases into over-award payments is permissible (subject to the terms of the relevant employment agreement and what other amounts are being absorbed into any annualised salary)
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Employment Law – Contractor Ordered to Return Files

Employment Law – Background

In Blue Badge Insurance Australia Pty Ltd v Farnarn [2017], an employer won a court order for a contractor to return confidential files

Employment Law – Facts

In essence:

  • A contractor was engaged by Blue Badge Insurance Australia between April 2013 and November 2014 to provide compliance advice. However, the end of this arrangement was not “amicable”
  • Blue Badge reminded the contactor of her confidentiality obligations. These included that she was return or destroy all documents, electronic storage media and other materials relating to confidential business information
  • Blue Badge took court action after failed multiple attempts to recover the documents

Employment Law – Decision

The NSW Supreme Court found:  

  • It was likely the contractor still had the confidential documents in her possession
  • The contractor was ordered to deliver hard-copy documents, computers and other electronic storage devices for inspection or file an affidavit identifying each document, the manner in which they were held, the date in which she ceased to possess them and an explanation of why she no longer had the documents
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Fair Work Commission – Employee not Subcontractor

Fair Work Commission – Background

In the case of Zielke v Pro-Built Engine Reconditioning Pty Ltd [2017], the Fair Work Commission has found that a worker who claimed they were unfairly dismissed was an employee, instead of a subcontractor.

Fair Work Commission – Facts

In essence:

  • The worker claimed they were dismissed unfairly
  • The employer, Pro-Built Engine Reconditioning argued that the worker was a subcontractor, instead of an employee. This was on the basis he only worked as needed and a verbal agreement with him that he would be on a set wage per week and he would pay his own tax and superannuation
  • However, the worker claimed he was a full-time employee. This is because he was paid a net $800 per week, every week, never provided invoices to the employer and was given group certificates during his engagement

Fair Work Commission – Decision

The Fair Work Commission:

  • Found that the worker was an employee
  • This finding was on the basis that he was required to consult the employer before taking leave, had to catch up on tasks after he returned from leave and had set hours of work. He was also paid whilst on leave, didn’t advertise his services or have a separate place of work and the employer supplied all his tools
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Employment Law – Dismissal of Injured Worker Not Discriminatory

Employment Law – Background

In Hilditch v AHG Services (NSW) Trading As Lansvale Holden [2017], the Federal Court rejected a fitter’s claim that his previous employer had breached disability discrimination legislation when they fired him without considering reasonable adjustments to accommodate his workplace injury.

Employment Law – Facts

In essence:

  • In 2009 a fitter at AHG Services injured a finger on his left hand
  • After surgery, he gradually returned to his pre-injury duties
  • In 2012 he was dismissed after providing medical certificates which confirmed he couldn’t perform his duties adequately and was only fit for office work
  • The worker sought damages for lost income and non-economic loss. He argued that AGHS had breached the Disability Discrimination Act 1992 (Cth) by dismissing him without contemplating reasonable adjustments or reassigning him to another role


Employment Law – Decision

The Federal Court found:

  • Prior to January 2011, there was no reason for AHGS to consider making reasonable adjustments to accommodate the employee’s injury because he was performing his role and failed to provide any medical certificates to suggest he could not perform his role
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CGT Withholding Payments: How will they impact insolvency practitioners transferring property?

By Natalie Gosper a Solicitor of Matthews Folbigg, in our Commercial and Property Law Groups and Bonnie McMahon a Solicitor of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.
New amendments to Schedule 1 of the Tax Administration Act 1953 (“the Act”), will amend the current foreign resident capital gains withholding payments regime, and apply to contracts transferring an interest in real property entered into on or after 1 July 2017.

What is the Foreign Resident Capital Gains Withholding Payments Regime?

Under the current regime, purchasers of taxable Australian real property (or an indirect taxable Australian real property interest which causes a company title interest to arise), with a market value over $2 million, must withhold and pay 10% of the purchase price to the ATO, unless a valid clearance certificate issued by the ATO (or a valid vendor declaration declaring that for a specified time the vendor is or will be an Australian resident), is provided before settlement. Although these new rules are intended to affect non-Australian resident vendors selling real property, the regime applies to all vendors, regardless of whether they are foreign residents.
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