The minimum wage has increased, but my pay hasn’t. What should I do now?

The minimum wage has increased, but my pay hasn’t. What should I do now?

 

By Alison Martens

On 1 July 2022 the National Minimum Wage increased by 5.2% and the award minimum wages increased by 4.6% (fairwork.gov.au). This means that about $40 extra per week would be landing in the pockets of those employed under these agreements. 

For employees, this is good news, however some might be left wondering why their pay cheque hasn’t increased yet. Below I break down what steps you should take, or why your pay might not increase.

Check your eligibility

Not everyone in Australia will have their wage increase because of this decision by the Fair Work Commission. The decision affects the pay of approximately 2.7 million Australians who are on the national minimum or those who work under an award. If you’re not sure which award applies to you, you can use this tool here.

Calculating your new pay rate

If you fall within an award or receive the national minimum, you can calculate your new pay rate (including allowances) with this tool here.

Once you have calculated your updated wage, we recommend speaking with your employer to discuss having the updated rate reflected in your employment agreement.

If you work within the aviation, tourism, or hospitality sectors, it is important to note that the wage increase has been delayed until 1 October because of their slower economic recovery post Covid.

Employer refusing to increase wage

If your employer refuses or is unnecessarily delaying the increase of your wage, and you fall outside of one of the delayed sectors, you should seek legal advice.

You can obtain generic initial advice from the Fair Work Commission, however if your situation is more complex, it is best to obtain personalized advice from an employment lawyer. It can be hard to navigate these situations with employers, therefore obtaining the correct advice up front is important.

Our employment law team offers free 30-minute consultations, which will help you understand what your next steps should be suited to your personal situation. To book in, call Boylan Lawyers on 08 8632 2777.

Alison Martens, Senior Associate at Boylan Lawyers, has built an impressive career within the employment law area over her seven years practicing.

It takes a village to have a child: surrogacy in South Australia

It takes a village to have a child: surrogacy in South Australia

By Simone Cureton

They say it takes a village to raise a child, however in surrogacy world, we say it takes a village to make one. I am fortunate enough to work in one of the brighter areas of law, which involves helping Australian families work with their surrogates and create the family they’ve always wanted.

What is surrogacy?

Surrogacy is an arrangement between a couple/person and a surrogate wherein the surrogate agrees to become pregnant (or seek to become pregnant) and surrender custody of, and the rights in relation to, the child born as a result of the arrangement. Surrogacy is an option for people who are unable to carry their own child and must be ‘eligible’ in accordance with the Surrogacy Act 2019.

In Australia, only altruistic surrogacy is legal. This means that the surrogate mother cannot receive any payment or equivalent material reward. Only the pregnancy related costs (including medical) can be reimbursed.

What are the legal requirements of surrogacy?

In South Australia, the Surrogacy Act 2019 sets out the legislative requirements for the preparation of a Lawful Surrogacy Agreement (‘LSA’). The LSA is not an enforceable document, except in relation to the financial aspect of the Agreement.

It is an important document recognizing the intention of the parties, and is necessary to gain a parentage order after the baby is born.

What is it like being a surrogacy lawyer?

I have the pleasure of acting for many surrogates and intended parent/s on a regular basis. Being a past-surrogate myself, I have a deep understanding of the journey that all parties will go through.

I had the pleasure of acting for Sarah and Ben who entered into a Recognised Surrogacy Agreement with Danni and Troy. Danni carried Sarah and Ben’s child as a traditional surrogate. In 2020, all four adults were blessed with a baby girl, Evie.

In a surrogacy arrangement, following the birth, the surrogate is registered on the birth certificate as the parent. Sarah and Ben made an application for parentage in the Youth Court of South Australia which I helped facilitate. In this matter, I acted for both Danni and Troy, and the parents, Sarah and Ben.

Judge Eldrige made the Order for Parentage formally recognizing Sarah and Ben as Evie’s legal parents. Evie’s birth certificate was then amended by Births, Deaths and Marriages to reflect Sarah and Ben as her parents.

There is nothing quite like seeing a family come together and celebrating an exciting new chapter in their lives. Surrogacy is a team effort, and is exciting, scary and amazing all at the same time! I am passionate about surrogacy in Australia, both educating others and advocating for fulfilling and successful surrogacy arrangements.

If you are interested in this area of law and would like more information, contact us on 08 8632 2777 or email hello@boylanlawyers.com.au.

 

How are weekly workers compensation benefits calculated?

How are weekly workers compensation benefits calculated?

By Alison Martens, Senior Associate

 

If you have suffered a work injury and you are entitled to weekly payments, you might be wondering how these payments are calculated…

Under the Return to Work Act 2014 (‘the Act’), if you suffer a compensable work injury and are unable to work due to your injury, you may have an entitlement to weekly payments of compensation. Often a complex and overwhelming area of law, these weekly payments are usually calculated with reference to your ‘average weekly earnings’. But what does this mean exactly?

Under the Act, ‘average weekly earnings’ is defined as the average weekly amount that you earned during the period of twelve months preceding your injury date. Importantly, for the purposes of the calculation, earnings are not confined to wages. So, what else could be included? 

Earnings can include any amount paid while you were on annual, sick, or other leave. They might also include a voluntary salary sacrifice for superannuation purposes (paid by you) or a non-cash benefit provided to you by an employer.

Sometimes this calculation method can produce unfair outcomes. The Act recognises that at times, basing your entitlement on the average weekly amount that you earned during the period of twelve months preceding your injury, will not produce a fair outcome.  Accordingly, the Act contains provisions as an alternate means to calculate your average weekly earnings. The purpose of these provisions is to ensure your average weekly earnings will not be based on earnings that are less than your lawful entitlement. 

What do these provisions cover? The provisions cover circumstances where you have suffered a gradual onset work injury and it appears that your level of earnings have been affected by your injury. You might have also had unplanned time off in the 12 months prior to your injury. In circumstances where you were predominantly in full-time employment prior to your injury or you regularly worked overtime, this will be factored in too. Exceptions for apprentices and injured workers under the age of 21 years also exist.

If at the time of suffering your injury, you were covered by an award or industrial agreement, your average weekly earnings will not be less than the weekly wage to which you were entitled to be paid. If there is no industrial instrument, then you are entitled to be paid no less than the Federal Minimum Wage.

If you have suffered a work injury and need advice with regards to what you are entitled to, Boylan Lawyers can assist you with navigating what is often a complicated and overwhelming area of the law. Contact us today on 08 8632 2777 or email hello@boylanlawyers.com.au. 

The End of COVID Mandates

The End of COVID Mandates

 

By Andrew Wright, Partner at Boylan Lawyers

 

At 12:25pm on 24 May 2022, the Emergency Management Declaration made pursuant to the Emergency Management Act that allowed South Australia’s Police Commissioner Grant Stevens to impose COVID-19 lockdowns, mask and vaccine mandates has been revoked.

 

Other than the SA Public Health Act 2011 and any Direction that may from time to time be issued by The Governor of SA, there is no absolute requirement for obligatory vaccinations for COVID-19 as it relates to the workplace and employment.

 

Indeed, each matter in South Australia will now raise the question of “safety” in the workplace balanced with the rights of the worker to determine one’s own vaccination status. From an employment law perspective, employers can no longer terminate workers simply due to a refusal to vaccinate. That would not constitute a “valid reason” under the Fair Work Act 1994. There must be proof that Work Health and Safety Law requires it, or some other statutory provision has provided for it, but saying that the Government has mandated vaccinations to terminate employment with no other valid reason, will no longer be sufficient.

 

There are matters that we are dealing with where injured workers are fit for suitable duties but have been denied suitable employment based on their non-vaccination status. Since the revocation of the Emergency Declaration, employers can no longer maintain this position even if arguably it was made and confirmed previously.

 

As such, in these cases we will write to the insurer and/or worker and put them on notice about the worker being ready, willing, and able to undertake suitable duties regardless of their vaccination status. Similarly, injured workers cannot be criticised now for breaches of mutuality or suffer prejudice because of their non-vaccination status.

 

Andrew Wright, Partner at Boylan Lawyers, expert in industrial relations for workers encourages workers to be aware of their rights. 

Boylan Lawyers puts the rights of South Australian workers first. Contact our team of experts on (08) 8632 2777.

 

International Women’s Day 2022

International Women’s Day 2022

 

International Women’s Day 2022

by: Boylan Lawyers

International Women’s Day is about celebrating women’s achievements, raising awareness against bias, and taking action for equality. The theme for this year is #BreakTheBias.

One of the incredible things about International Women’s Day is how it can be interpreted differently by each person celebrating it. That’s why we asked the women at Boylan Lawyers “what does #BreakTheBias mean to you?” Here are their answers…

 

Ensuring diversity, respect and equal opportunities for each and every individual however they identifyNaomi Bennier

 

I am a sensitive person and I think my sensitivity should not be used to judge me, but rather be seen as part of my ability. Being sensitive in the legal profession isn’t a hindrance, but a way to connect and humanise our work. It is a good feeling to work in a business where it is seen this way too.Rianie Huggins

To me the #Breakthebias theme is all about taking action. We all know gender bias continues to exist but real change can only happen by calling it out when it occurs. Samantha Kelly

#breakthebias means coming together in support of one another to live our life to the highest potential. By supporting one another we can take pragmatic action, incorporate disciplinary habits, and move unapologetically and confidently towards our goals and dreams to shatter glass ceilings and break biases. Happy International Women’s Day. – Lucinda Nicholas

To me, the theme #Breakthebias encourages us to listen and appreciate every person who identifies as a woman. We have a responsibility to lift all women, especially women of colour, women with disabilities, and queer or trans women. On a personal level, it is my responsibility to educate myself of the differing levels of equality that exists across our gender and continuously check my priviledge. Ellie Watford

 

#Breakthebias to me means a world without Gender dynamics. A world where my thoughts, views, and opinions are valued for what they are, and not dismissed up front because I am not the right gender.Pamela Badcock

#Breakthebias encourages me to be grateful for all the strong and determined women who have forged a path. I look forward to continuing to support women in breaking the bias for decades to come. – Simone Cureton

International Women’s Day is to acknowledge that we are seen, heard and recognised as equals – a celebration of what we have achieved to date and the bravery needed to continue to call for change in how we represent and how we are represented in family, political and social landscapes. Sharon McMahon

You can learn more about International Women’s Day here.

COVID19 and Workers Compensation Claims

COVID19 and Workers Compensation Claims

Injured Worker | Boylan Lawyers
From 23 November 2021, South Australia’s borders will be open to fully vaccinated people from all Australian states and territories, with some exceptions (SA Gov). The expected rise in COVID-19 transmission means everyone should be aware of their rights and responsibilities when it comes to safety at work and workers compensation.
 

Workplace Responsibilities

Any person conducting a business has a responsibility to ensure, so far as is reasonably practicable, the health and safety of workers in their workplace. This likely includes minimising, if not wholly eliminating, the risk of exposure to COVID-19. Consequently, workplaces are expected to continue with physical distancing, mask wearing, good hygiene, regular cleaning and maintenance, and encouraging vaccination. 

Employers should keep up to date with cleaning requirements for the various workplaces (SA Health).

Workers have responsibilities to take reasonable care for their own safety too. Workers should ensure their acts or omissions don’t adversely affect the health and safety of others. Workers must also comply with reasonable instructions and co-operate any reasonable policy or procedure relating to health or safety at the workplace. 

Employers are encouraged to read the SafeWork Australia guides and understand how to best provide a safe working environment. Read the SafeWork guides here to check if your workplace is complying with the recommendations.  

What Happens if my Workplace is Deemed an Exposure Site? 

If your workplace is exposed to COVID-19, the following guidelines for assessing and managing risk have been implemented by SA Health: 

  • General Businesses and Venues: hospitality, community sport, places of worship, retail services, entertainment facilities, higher level education, beauty and other services, information and educational facilities, major recreation facilities.  
  • Critical services and infrastructure: defence, essential infrastructure work (i.e. energy services, water services, food manufacturing), emergency services, veterinary services, and agriculture.   
  • Primary and community health care settings: medical settings, paramedics, pharmacies, pathology services, non-residential disability care. 

What Financial Support Exists if I am Directed to Quarantine or Isolate?  

The South Australian Government has outlined a pandemic leave support payment and cluster isolation payment for individuals. More information can be found here 

Alternatively, sick/personal leave, annual leave, income protection (where a policy allows), or other applicable insurance may be available to you. If you are unsure of your entitlements, you should speak to a lawyer. 

Can I Claim Workers Compensation if I Catch COVID-19 at work? 

If you catch COVID-19 and believe you caught it from work, then you can make a workers compensation claim, this is even if your employer took all reasonable steps to minimise the risk. Whether you succeed will depend on your unique circumstances. You will have to prove on balance that the infection came from the workplace, rather than another source such as exposure in the community outside of work. It is highly recommended that you speak to a lawyer if you think you caught COVID-19 at work. 

Boylan Lawyers puts the rights of South Australian workers first. If you want more information about your rights as a worker, contact our team of employment and workers compensation experts on (08) 8632 2777.  

Elias Angeletti is Senior Associate at Boylan Lawyers, specialising in employment and workers compensation law. Elias was admitted in 2014 and has since been involved in workers compensation legal proceedings before the South Australian Employment Tribunal, Administrative Appeals Tribunal, the Supreme Court of South Australia, and the High Court of Australia.