October GPO Box 863 PO Box 16013

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1 October 2015 GPO Box 863 PO Box Sydney NSW Melbourne VIC Tel DX 128 Melbourne Fax Tel Fax justiceconnect.org.au

2 JobWatch Thank you to JobWatch for partnering with us to deliver this Pilot. Law firms Thank you to the following law firms for their contribution to and support of the Pilot: Clayton Utz Baker & McKenzie Sparke Helmore HWL Ebsworth Lander & Rogers Wotton + Kearney Tel miriana.smoljko@justiceconnect.org.au Tel tina.turner@justiceconnect.org.au 2

3 Australia s national workplace relations tribunal, the Fair Work Commission ( FWC ), is responsible for resolving disputes under the unfair dismissal and general protections provisions of the Fair Work Act 2009 (Cth). These provisions allow employees who believe they have been unfairly dismissed from their workplace to make an unfair dismissal or general protections at the FWC. Because it can be difficult for unrepresented employees to exercise their rights at the FWC, Justice Connect s Referral Service is working with JobWatch to help secure pro bono legal representation in unfair dismissal and general protections claims listed for conciliation or conference. This is part of Justice Connect s efforts to improve access to justice and address unmet legal need. The pilot s preliminary results obtained from 1 July to 30 September 2015 have been encouraging. It appears that the program is of benefit both to unrepresented employees and to the wider legal process. For this reason, Justice Connect and JobWatch have decided to continue the program. Expansion of the model into other Community Legal Centres and areas of employment law should be considered once we have found further funding and the operation of the program is more firmly established. The report seeks to assess the impact of: connecting unrepresented employees experiencing disadvantage with legal advice and representation up to and including conciliation or conference before the FWC; and addressing unmet legal need by establishing a new referral pathway and model of collaboration between Justice Connect s Referral Service and Community Legal Centres Unrepresented employees experiencing disadvantage young workers holders of temporary work visas older workers disabled workers workers from culturally and linguistically diverse backgrounds clients who work and live in rural and regional Victoria workers in low paid labour industries. This group of workers are vulnerable to exploitation at work and face significant barriers to asserting their employment law rights. Justice Connect Justice Connect is a not-for-profit community legal centre that facilitates the provision of pro bono legal services across Victoria and New South Wales. Justice Connect exists to help build a world that is just and fair where systems are more accessible and accountable, rights are respected, and laws are fairer. This is achieved by partnering with pro bono lawyers to develop and strengthen pro bono capacity and strategically match this with unmet legal need. JobWatch JobWatch is a specialist employment rights legal centre which helps Victorian workers with employment law problems. JobWatch s functions include: a free and confidential telephone information and referral service for Victorian workers; community legal education, including training, seminars and the production of a variety of publications on employment law and workers' rights; representation and assistance for disadvantaged workers through a legal casework practice; and 3

4 campaign and law reform activities to promote workplace justice and equity for all Victorian workers. Pro bono partners: Clayton Utz Lander & Rogers HWL Ebsworth Sparke Helmore Baker & McKenzie Victorian Bar Pro Bono Referral Scheme Wotton + Kearney Justice Connect s Referral Service and JobWatch have worked together to test a new pro bono referral pathway model to address unmet employment law need. As part of the model a lawyer from Justice Connect s Referral Service is seconded to JobWatch to refer clients for pro bono legal assistance. The pilot established a new model of collaboration between Justice Connect s Referral Service and JobWatch. It was designed to connect recently dismissed employees with pro bono help for conferences and conciliations in general protections or unfair dismissal matters at the FWC. This help was available to unrepresented litigants who meet pro bono criteria and have filed claims with the FWC. Under the secondment arrangement, a lawyer from Justice Connect s Referral Service attends JobWatch on a weekly basis. The lawyer scans through inquiries taken by JobWatch s telephone information and referral service to identify eligible clients with unfair dismissal or general protections claims. These clients are then referred to Justice Connect for pro bono legal assistance. Matters appropriate for pro bono identified at CLC by seconded Referral Lawyer Matters referred to Justice Connect Justice Connect coordinates referrals to pro bono partners that have expressed interest in adressing unmet employment law need The pathway works as follows: (a) Justice Connect Staff member is seconded to CLC on weekly basis to: identify appropriate matters for pro bono referral; contact potential clients to see if they have filed their application at the FWC, obtain consent, conduct merits assessment and take preliminary instructions; and refer appropriate clients to Justice Connect for pro bono assistance (b) (c) (d) Following, Justice Connect sends out application form and request for list of relevant documents to client. Once a client returns application form Justice Connect coordinates pro bono assistance by referring the client to participating member firms for advice and representation up to and including conciliation or conference before the FWC. Once matters are completed Justice Connect surveys clients and lawyers to collect information on the value of the assistance provided. 4

5 The secondment arrangement aims to develop an effective referral pathway to assist unrepresented employees who have filed unfair dismissal or general protections claims listed at the FWC by connecting them with pro bono lawyers for representation at conciliation or conference. Jobwatch does not have the time to assess which of its clients could be helped by pro bono lawyers. Many people are missing out on a chance to assert their employment rights because they cannot get legal representation. The aims of the pilot were to: Identify matters appropriate for pro bono assistance Create a timely and effective referral pathway and process Assist unrepresented employees who do not have access to legal representation A Referral Service staff member was seconded to JobWatch for 12 weeks (68 hours). Over that time the Secondee scanned through a total of 1143 inquires. Job watch s client database collects the following information: contact details, work type, age, employer s name, brief summary of matter and information/referral pathways provided. The database can be scanned by narrowing searches to specific date ranges and issue types. Month 1: The preliminary focus in July 2015 was to identify clients who had made inquiries about filing an unfair dismissal claim. Initially, the secondee attended JobWatch one full day per week to scan exclusively through unfair dismissal inquiries recorded between May and July (36 hours) Month 2 & 3: From August the Pilot expanded to include identifying clients with general protection claims. Database search categories and filters were widened. With a more manageable weekly task of scanning through current inquiries the secondee began attending JobWatch for half days. Additionally, a pro bono log book was created for JobWatch staff and students to record any inquiries where a client exhibited special circumstances.(32 hours) Snapshot of database scan: From an initial data scan 14% of inquiries were deemed appropriate for pro bono* May June July August September Inquiries received by JobWatch Inquiries identified as potentially appropriate for pro bono Referrals to Justice Connect

6 Inquiries that were not appropriate for pro bono assistance were rejected on the following grounds*: Referred elsewhere Not eligible Income threshold Means No dismissal 136 Alternative claim 83 Out of time 19 No special circumstances *Alternative claims comprised of unpaid entitlements 1, discrimination claims 2 and WorkCover 3. *Special circumstances include where an individual is from a CALD community, cannot afford legal representation and is not eligible for Legal Aid or other legal assistance, in accordance with Justice Connect s pro bono guidelines as priority clients. The Secondee attempted to call 157 potential clients 4 identified through the preliminary data scan (3 to 4 attempts). A total of 106 potential clients were successfully contacted. When a successful call was made prospective clients were: provided with information about the Pilot between Justice Connect and JobWatch (assistance limited to conciliation/conference); asked if they had filed or were contemplating filing an unfair dismissal or general protections claim; asked if they were interested in the service and completing a financial means test; and if interested, asked for consent so details could be passed on to Justice Connect for an application form to be sent out. If a client met Justice Connect s eligibility criteria for pro bono assistance they were asked further questions about their matter (for matter summary and comprehensive chronology to be compiled). On average calls involving a successful warm referral to Justice Connect took approximately 23 minutes. 23% of prospective clients were successfully referred to Justice Connect. Successful clients were advised that Justice Connect would send them an application form within 24 hours, and to complete and return the form at the earliest opportunity. Outcome of phone calls to prospective clients 1 Fair Work Act 2009 (Cth) s548: Employees can use the small claims process to recover employment entitlements such as unpaid wages or annual leave. The time limit for making a small claim is usually 6 years from the date when the employee was supposed to have been paid their entitlement. 2 Unlawful workplace discrimination occurs when an employer takes adverse action against a person who is an employee or prospective employee because of protected attributes. Claims can be filed at a state or federal level. The time limit for making a small claim is usually 12 months from the date of the adverse action. 3 The WorkCover scheme is a system of statute based, compulsory insurance that provides a range of entitlements to workers and insures employers against the impact of economic and non-economic loss suffered by workers. 4 Priority Clients who have received preliminary information from JobWatch about filing an unfair dismissal or general protections claim with termination at the Fair Work Commission. 6

7 No dismissal 5% File and withdrew 1% Represented by private lawyer/union 6% Filed alternative claim 5% Means test 3% Negotiating with employer 7% Matters referred to Justice Connect 23% File UD Claims that settled 6% Decided not to file 44% 6% of clients who contacted JobWatch from May to June 2015 decided to file unfair dismissal claims and self-represent. Each of these clients indicated that pro bono representation would have helped them better assert their rights. Feedback included: It would have been useful having representation at conciliation because the other party had representation. I felt powerless". The whole matter has been so unfair. In the end I just felt pressure to give in. A lawyer helping me out would have been so useful. I felt a real imbalance of power. Having a lawyer really would have helped. 44% of clients contacted decided not to file a claim. Almost all clients contacted expressed that it was overwhelming to make a decision about the most appropriate claim to make without legal advice. Additionally, many clients expressed that the process was confusing. One prospective client stated, with a lawyer I d stand a chance. But without one I d just burst into tears in front of my old boss. He has already caused me enough grief so I decided not to file because I felt unsupported Many of these prospective clients were workers who because of their industry or occupation, employment status or personal characteristics were vulnerable to exploitation at work and faced significant barriers to asserting their employment rights Number of referrals to Justice Connect under the Pilot: Total: 25 matters were identified as appropriate for pro bono assistance 19 potential unfair dismissal claims 6 general protections claims 7

8 Client profile Clients identified in the pilot worked predominately in food processing, hospitality, cleaning, warehousing and distribution and labour industries. Apprentices and people on temporary work visas were also identified. Special circumstances 6 clients were from culturally and linguistically diverse backgrounds 8 clients lived in Regional and Rural Victoria 7 clients had a disability All clients expressed that they were experiencing financial hardship- debts that they could no longer pay, and rental or mortgage repayment arrears Age of clients 7 clients were aged years of age 10 clients were aged years of age 8 clients were aged years of age Total: 17 applications returned 3 people did not complete the application form because they decided not to proceed further with their matter 2 people received assistance from Victoria Legal Aid 2 people returned application forms after the conclusion of the pilot evaluation period Applications accepted for referral Applications returned Note: *1 applicant was rejected on the basis that the application was provided less than 24 hours before the matter was listed for conciliation. *1 applicant was referred to Justice Connect s Self Representation Service for assistance in the Federal Circuit Court. Total: 15 successful referrals We were able to place each matter we attempted to refer. Number of matters that have been referred and settled: 7% 7% Settled Did not settle 14% 72% Client withdrewpersonal circumstances Pending 8

9 Remedies: Compensation Sums Under $1000 Under $4000 Under $8000 Over $8000 All matters that settled resulted in clients receiving compensation and a statement of service. 3 clients also received payment of unpaid entitlements. Eritrean factory worker forced to pay loan to keep job Many people that work in the same factory are new to this country and treated badly. When my supervisor forced me to pay money so I could keep my job and told me not to come back to work when I asked for the money to be returned I felt helpless and confused. The lawyer gave me answers and helped get my money back. I have let all of my friends at the factory know that they are being treated unfairly and should speak with a lawyer. Adiam* Adiam is a young female refugee who had been working at a food packaging factory in regional Victoria. It was her second job since coming to Australia. Adiam was excited to be in the workforce and building the foundations for a new life in Australia. This year it came as a shock to Adiam when her supervisor told her that she would lose her job unless she took out a loan and paid him $20,000. Adiam was under the belief that he had to follow the direction. She explains, I tried to listen and follow my supervisor because having a job and future is my dream. After a few months had passed Adiam asked her supervisor when she would receive the money back. Adiam s supervisor terminated her on the spot and told her not to return to work and that she would be paid back in 4 weeks. Adiam called JobWatch and was sent a Justice Connect application form after being screened in the Justice Connect and JobWatch Unfair Dismissal Pilot Project. Adiam filed an unfair dismissal claim with termination at the Fair Work Commission. With a helping hand from a member law firm of Justice Connect Adiam was represented at Conciliation and settled for an award of compensation for underpayment of wages, an agreement for Adiam s $20,000 to be paid back and a $12,000 lump sum payment. Adiam was extremely pleased with the result. From Unfair Assessment to Equal Footing Steve* suffered from several disabilities that made it difficult for him to work. Steve had been a recipient of the Disability Support Pension since 2008 due to chronic injuries, depression and Post Traumatic Stress Disorder. Steve s situation was made worse when, in 2012, he was severely and permanently injured in a motor vehicle accident. After taking three years off, Steve returned to his job at a paper mill as part of the Commonwealth Supported Wages Scheme. Steve arranged to work part time over a few days per week. 9

10 Like all workers at the paper mill, Steve was required to undergo productivity assessments to determine his wage. When Steve undertook his assessment, he was subjected to a more difficult test than other workers and his productivity rating subsequently dropped. Steve s employer told him that his income would be reduced by 25% based on his new productivity rating. Steve s employer asked him to sign a new agreement reflecting this change. When he queried the outcome of his assessment, Steve was told to go home. His employer later sent him a letter of termination. Steve then filed a General Protections Application with the Fair Work Commission. Steve called JobWatch and was sent a Justice Connect application form after being screened in the Justice Connect and JobWatch Unfair Dismissal Pilot Project. Steve s matter was referred to a Justice Connect Member firm, for assistance at his Fair Work Commission Conference. At Conference, Steve and his employer reached a confidential settlement. Steve was extremely pleased with the assistance he received. Steve said that before receiving assistance he thought [he] had no chance. He said the lawyer representing me helped me understand my rights and stood up for me. *Clients personal details have been changed to preserve anonymity. There was high overall satisfaction with the Service (above>4 average rating of client satisfaction across a range of feedback questions). Overall satisfaction of 4.2 across a range of feedback questions 5. Information collected covers a range of elements of the Service, including initial contact, application process, and perceived outcomes from obtaining advice and being represented at the Fair Work Commission. This information is collected via a telephone survey directly after a matter is finalised. Three of the surveys were completed pre FWC Conference for the purpose of this Pilot. Client feedback collected during the Pilot indicates that clients are very satisfied with the service, with top responses relating to confidence and legal outcome. All respondents indicated that they preferred to have a lawyer represent them at the FWC. Other recipients made the following comments: I was lost and could not sleep at night before I got a lawyer It s great to know that someone who is an expert will be there to support me Such a big weight has been taken off my shoulders. It s so good to have somebody to advise me about my rights and what I m likely to be entitled to. Client empowerment: There was an average increase of 7.15 in self perceived confidence after receiving a referral for pro bono assistance. The perceived levels of confidence is one element of determining whether clients of the Service are being empowered to better understand and assert their legal rights at the FWC. The graph below indicates the movement in confidence before and after receiving assistance. The average response before assistance was 3.35, this moved to 7.55 following assistance. 5 Scale: (1) strongly disagree, (2) disagree, (3) unsure (4) agree and (5) strongly agree 10

11 12 Self Percieved Confidence (1-10) Before assistance After assistance The feedback from participating law firms supported the overall value of the program, with firms observing that referral briefs were well prepared, representation promoted procedural efficiency and that the assistance had improved their clients understanding of the FWC process. Many clients were described as having little knowledge of the FWC procedures and remedies available pro bono hours of assistance provided. 92% of lawyers who participated in the Pilot indicated that they received relevant instructions prior to client s conciliation. 100% of lawyers indicated that they believed their client benefited from obtaining legal advice and representation. 100% lawyers indicated that the experience encouraged them to recommend pro bono to other lawyers. The pilot successfully matched 15 individuals with pro bono lawyers for assistance and representation with unfair dismissal or general protections claims listed for conciliation/conference at the FWC. This assistance would not have been possible without this pilot. The feedback from both clients and lawyers demonstrates the value of this assistance and the importance of continuing to address unmet employment law need through fostering strategic pro bono partnerships between community legal centres and Justice Connect. In establishing a simple and effective referral pathway from JobWatch to Justice Connect we think the following measures would benefit the program: JobWatch volunteers and staff flagging matters that may be appropriate for pro bono in a log book on a weekly basis to narrow search scope for seconded lawyer. Consideration be given to pilot a fortnightly drop-in clinic model or workshop where clients with special circumstances are given advice and helped with filing unfair dismissal/general protections applications by JobWatch. Subsequently, a warm referral for pro bono representation can be coordinated by Justice Connect. Our observations, as well as client feedback gathered in the pilot through surveys, demonstrate a significant unmet legal need for employment law matters, particularly for vulnerable workers. Expansion of this referral model to other community legal centres will align pro bono resources with the needs of vulnerable workers, including: young workers; 11

12 holders of temporary work visas; older workers; workers from culturally and linguistically diverse backgrounds; clients who work and live in rural and regional Victoria; and workers in labour industries (i.e. working under labour hire arrangements) that have traditionally found it difficult to assert their legal rights It is hoped that these findings will inform future pro bono referral pathways for responding to unmet legal need in employment law. We consider the model can be expanded to include other community legal centres and we will seek funding to expand the scope of the project. 12