Impacts from changes to the Workers Compensation Act
 
In October in 2013 the Queensland Government made changes to the Workers Compensation and Rehabilitation Act which set up a process whereby, as an applicant for a new job, you are required, if asked by a prospective employer, to fully and properly disclose and inform the prospective  employer  all  of  your  prior  and/s to theor existing injuries or medical conditions that might be aggravated in the duties of the new job.

If you provide false or misleading information, when asked by a prospective employer, and you then get the job but later are involved in an accident or event at work which aggravates your existing or pre-existing injuries or medical conditions, you may not be entitled to claim Workers Compensation statutory benefits for that aggravation or injury. Further, you may not be entitled to bring a common law claim for damages (negligence) against your employer for that aggravation or injury.

A request for disclosure of prior and existing injuries or medical conditions must be made by the prospective employer in writing. The request must also contain information about the nature of the duties and the subject of the employment (e.g. position description or job method statements). The request must warn you about the impact of providing false and misleading disclosure.

The employer must also give you reasonable time to provide proper and full disclosure before hiring you. If they do not give you reasonable time to comply with the request then the exclusionary provisions to access compensation cannot apply to you.

In addition to the above, any prospective employer can now apply to the Workers Compensation regulator for a complete copy of your Workers Compensation claims history within Queensland. If they apply and obtain a copy of your claims history, they are not allowed to release that information to anyone else but they are allowed to use that information to assist them with the employment process, that is, to assist them in deciding whether or not to give you the job.

So any person applying for a new job in Queensland needs to be careful about the amount of the information provided to any prospective employer. If the request is made in writing then you need to carefully consider how you comply with that request because failure to do so at all or failing to properly disclose, will mean that if you are later subsequently injured in the course of your employment, you may not be entitled to make an application for workers compensation benefits for that injury.

The recent amendments to workers compensation have reduced or removed a number of injured workers entitlements to compensation and damages. If in doubt about any entitlement to claim compensation you should obtain legal advice immediately.


Motor Vehicle Accidents: A Crash Course

Motor vehicle accidents are a shock for everyone involved. Knowing the typical issues that arise in advance can help you to avoid the situation becoming more difficult. Here are seven common mistakes that to avoid.

  1. Not exchanging details

The law requires that the drivers of vehicles involved in an accident exchange:

  • Names and addresses of both the drivers and owners of each vehicle;
  • Each vehicle’s registration number;
  • Any other information to identify the vehicle, eg. signage or dents.

Failure to exchange these details can result in a fine.

  1. Not providing details to the Police

Each driver of a vehicle involved in an accident must also give the details listed in point one above to a Police Officer if:

  • Any person is killed or injured in the crash; or
  • There  is  damage  to  property  (other  than  your  own) greater than $2,500.00.

You should contact Police at the accident scene or within 24 hours to avoid a fine.

  1. Not taking photographs

If possible, photograph the damage to each vehicle and the position of the cars at the scene. This information is an explanation of the accident. After treatment, if your symptoms are not improving it is

  1. Not obtaining witness details

 

Obtain the names and contact details of witnesses who may have seen the accident.

  1. Not obtaining medical advice

The shock of an accident can mask pain and other symptoms that would otherwise indicate you are injured. It is important to attend upon a general practitioner to ensure early diagnosis.

The law requires that the drivers of vehicles involved in an accident exchange:

  • Names and addresses of both the drivers and owners of each vehicle;
  • Each vehicle’s registration number;
  • Any other information to identify the vehicle, eg. signage or dents.

Failure to exchange these details can result in a fine.

  1. Not seeking legal advice regarding injuries

Injuries may prevent people from working (either immediately post-accident or after years of aggravation). To protect yourself, it is best to seek legal advice regarding compensation available.

It is important to consult a solicitor as early as possible. This is because strict time limits apply to personal injury claims.

  1. Not enquiring how QCAT can help you with property damage

If the damage to your vehicle is less than $25,000 and you are unsuccessful in requesting repairs from the other driver or owner, you can bring proceedings in the Queensland Civil and Administrative Tribunal (QCAT).

If the damage exceeds $25,000, it is best to consult a solicitor as Court proceedings may be required.


Who can and can’t be an SMSF trustee?

Most people understand that superannuation can  be  accumulated   within   a   retail fund, industry fund or a self managed superannuation fund (SMSF).

The main difference between retail or industry superannuation funds and an SMSF is that generally, the members of an SMSF (whether personally or as directors of a corporate trustee), are also the trustees of the fund.

SMSFs can provide member-trustees with greater control over their investments, enabling them to manage the fund for their own benefit. As a result, SMSFs are becoming increasingly attractive for those seeking to increase and preserve their retirement savings.

With the increase in the number of SMSFs, it follows that SMSF trusteeship is becoming more and more common. However, not just anyone can become, or continue as an SMSF trustee. In order to be eligible, certain criteria must be met.

What are the eligibility criteria?

SMSF trustees must be over the age of 18, and not be under any legal disability or be a disqualified person.

Legal Disability

Legal disability can arise where someone has lost capacity to conduct their affairs because of deterioration with age or following an accident.

Disqualified Person

An individual is a disqualified person if:

  • convicted of an offence involving dishonesty (e.g. fraud);
  • subject to a civil penalty under the superannuation laws (e.g. fine for non compliance);
  • insolvent   under   administration, including being an undischarged bankrupt   or   have   executed   a personal  insolvency agreement pursuant to the Bankruptcy Act; or
  • disqualified by a court or regulator (i.e. by the Australian Taxation Office (ATO)).

A company is disqualified if:

  • a responsible officer (i.e. a director, secretary of executive officer) is a disqualified person;
  • a receiver, official manager or provisional liquidator has been appointed; or
  • action has commenced to wind up the company.

What to do if you become a disqualified person

A disqualified person is prohibited from continuing to be, or act, as trustee of an SMSF. In such circumstances, the disqualified person must immediately notify the ATO of the disqualification and cease being (by retirement), or acting, as trustee or director of the corporate trustee. This may mean that your SMSF is no longer a complying fund.

If this happens, your SMSF might need to be restructured to meet the ATO’s requirements. Often this will require the transfer of your superannuation interest out of your SMSF. If you are the sole member of the SMSF, it would then need to be wound up.

Continuing to be, or act, as trustee of an SMSF when you know you are disqualified is an offence punishable by significant fines or imprisonment.


"If I volunteer, can I be sued personally if something goes wrong?”

The Legislative Scheme

It was recognised that the work of volunteers in the community was invaluable and should to be encouraged. Accordingly, a statutory protection against civil liability for those persons was created through the introduction of the Civil Liability Act 2003 (Qld) (“the Act”).

Am I a Volunteer?

You will be considered a volunteer if you carry out community work without receiving personal financial gain.

You will also be considered as a volunteer if you donate food for a charitable purpose, without financial reward. Having your reasonable expenses (ie. fuel costs, toll fares, cost of ingredients) paid by way of reimbursement will not preclude you from being considered as a volunteer under the Act.

Protection for Volunteers

If you are a volunteer, you are protected against being sued for any act or omission made through the course of that volunteering provided it is organised through a recognised community organisation (ie. The Salvation Army, a parent and citizens association, an incorporated surf club).

If you are a volunteer donating food, you will be protected from being sued for any harm resulting from the consumption of the food that you donate providing that:

  1.  you did make a profit from donating the food;
  2. you donated to a recognised community organisation;
  3. you donated in good faith and for charitable/philanthropic, sporting/ recreational, political or educational purposes; and
  4. it was safe for consumption at the time you donated it.

You also have an obligation to inform the community organisation that you are donating to of any expiration dates or particular handling/storage requirements. It is for this reason that many community organisations only accept canned foods or foods with a long shelf-life.

What is not protected?

There are three scenarios whereby you will have a problem:

  1. if you do something that is considered outside of the normal course of the volunteering activity or for anything that you do that is contrary to the instructions of the community organisation;
  2. if  you  were  involved  in  a  criminal  act  at  the  time  that  you  are volunteering; or
  3. if you were affected by drugs or alcohol and caused harm.

So what does all this mean for me?

Whether you are volunteering at your local community organisation or donating food to your local charity, you should be aware of what protections are in place to prevent you from being sued.

Jack Fairweather