Licences to work & disciplinary actions
Many workers are required to obtain and maintain licences or registration in order to work. A failure to hold or maintain a licence (or to have it placed subject to conditions) can mean loss of a particular employment; loss of clients, patients and customers; and in the extreme, loss of a right to work.
Such matters may arise where there are:
- Allegations of professional misconduct or breaches of professional standards made by clients, patients, etc;
- Allegations of breaches of obligations made by professional registration organisations;
- Criminal charges, which may be unrelated to one’s profession, that may impact on professional registration;
- Issues with regard to the application of professional licences and recognition of overseas qualifications;
- Issues with regard to clearances to work, such as working with children checks.
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Professional licensing
Many professionals are required to obtain and maintain licences in order to work
Workplace requirements differ in each industry. Most professional industries, however, require employees to obtain the proper licence or registration.
In some instances, it can help to have your application for registration professionally prepared. Seeking legal advice on aspects of the process you do not understand may avoid costly and stressful errors, especially if you are required to re-submit your application.
Legal advice when preparing your application can be especially important in circumstances where:
- You believe you may be required to disclose information adverse to your application, such as past allegations of misconduct or previous disciplinary investigations; or
- You are seeking to rely on overseas or inter-state qualifications as part of your registration.
Segelov Taylor Lawyers can provide advice and assistance on all aspects of professional licencing to reduce the risk of error or delay in obtaining registration.
Working with Children
WWCC are a requirement for anyone who works or volunteers in child-related work
Working With Children Checks (WWCC) are administered by state governments, but all operate on a very similar basis.
A person may not work in child-related work without a WWCC. A loss or suspension of a WWCC will often lead to a loss of employment. Employers may be committing an offence if they employ a person in child related work without a WWCC.
A WWCC involves a National Police Check (criminal history record check) and a review of relevant workplace misconduct.
What can I do if I have been refused a WWCC, or my WWCC has been cancelled?
The decision to refuse a WWCC, or cancel a WWCC is an administrative decision. Generally speaking, there are three possible avenues for challenging or seeking a review of a decision:- First is to seek internal review. In most jurisdictions, the decision to refuse or cancel will be accompanied by documents as to an internal review process. The internal review process requires the government authority responsible for the decision to reconsider the matter.
- Second is to seek external review. As the decision to refuse a WWCC is an administrative decision, an application for external review is made to the relevant administrative tribunal such as the NSW Civil and Administrative Tribunal (NCAT) or the Victoria Civil and Administrative Tribunal (VCAT).
- Third, which will not be open in all cases, is to identify a substantial legal error and seek judicial review in a Court. If successful, this may lead the matter being remitted to the Tribunal to be determined in accordance with the correct legal principles.
Segelov Taylor has substantial experience in advising and assisting individuals on seeking review of decision to terminate or refuse a WWCC.
Disciplinary action
Disciplinary action can have far-reaching and devastating effects on one’s career
A denial of access or the revocation of professional membership or registration can have a devastating effect on a person’s ability to work in their profession and earn an income. The effect is far greater than simply dismissal from employment, as it prohibits work (be it employment or self-employment), and often involves significant reputational damage which can last for years and, in many cases, the decision is published and available on the internet.
A decision to deny, refuse or cancel a credential required to perform work in an industry is capable of being appealed by way of an internal appeal process or by way of external merits or administrative review. The precise appeal or review rights will depend on the specific credential and the law associated with it. In some cases, a decision to cancel membership or credential can only be made by a Tribunal where the person has a right to be heard and represented.
Because of the significant effect of such cancellations, legal advice and representation is generally warranted and worthwhile. Legal fees in such cases may be tax deductable.
Segelov Taylor Lawyers are expert at assisting individuals defend their rights and position. We have extensive experience in internal review processes, along with proceedings in the NCAT and other administrative review tribunals.
Prior to the commencement of proceedings, we will undertake a thorough assessment of the matter and provide clear and practical advice as to:
- What options exist to challenge a decision;
- The pros and cons of each option including the likelihood of success of any challenge; and
- The costs associated with each option.
Professional Registration
Many workers are required to obtain and maintain licences or registration in order to work. A failure to hold or maintain a licence (or to have it placed subject to conditions) can mean loss of a right to work, at the extreme, and loss of particular employment, and loss of clients, patients and customers.
Such matters arise is the following contexts:
- Allegations of professional misconduct or breaches of professional standards made by clients, patients, etc;
- Allegations of breaches of obligations made by professional registration organisations;
- Impact of criminal charges (which may be unrelated) on professional registration;
- Recognition of overseas qualifications;
- Clearances to work, such as working with children checks.
These matters are often difficult and stressful, and can impact on the professionals mental health and capacity. Ensuring that responses to allegations are made carefully is crucial.
Decisions made by professional registration organisations, and others are, at a minimum, subject to requirements of procedural fairness and generally reviewable as administrative decisions. Segelov Taylor can provide expert, cost effective and pragmatic advice and assistance.
Segelov Taylor Lawyers can expertly advise and help you obtain and maintain the required licences or registrations.
Common Questions
The terms on which we act in employment matters varies depending on the circumstances of each matter. We act in such matters on normal fee basis, fixed fee, and on occasions, no win, no fee. (as well as a combination of the above). As part of the process of providing initial advice as to options we will have a conversation with you about our terms.
The difference between an employee and an independent contractor is complex, but can be crucial. Minimum rates of pay, and many protections containing in Modern Awards and the Fair Work Act (including unfair dismissal protections) apply only to employees. Taxation, superannuation and other payments may apply operate different on employees and contractors.
Courts make the assessment of whether a person if an employee or contractor by reference to a variety of factors such as:
- Degree of control over how work is performed – Employees are subject to higher level of control than contractors.
- Method of payment – employees are generally paid by reference to the hours they work, while contractors are often paid by reference to the tasks they perform.
- Hours of work – employees are more likely to work defined hours while contractors are more likely to have a discretion as to when they work.
- Tools and equipment – employees generally do not supply their own tools or equipment.
- Tax – Contractors normally have an ABN and charge GST, while employees have PAYG tax deducted.
- Whether the work can be delegated or must be done personally. A employee is required to do the work themselves, while a contractor can often have someone else perform the work.
- How the parties characterize the relationship – while not conclusive, whether the parties describe the relationship as being contrcator or employee is a consideration.
Please contact us for more ifnormation.
Adverse action is a term used in the Fair Work Act. Where adverse acted is taken by an employer or principal contractor for a prohibited reason, it is unlawful.
Adverse action includes the termination of employment, and any other action that causes a person determinant in their work.
There are three classes of prohibited reasons: around the exercise of workplace rights, around the exercise of industrial rights (such as being a member of a union), and because of a characteristic a person has (such as being a women).
Unlike unfair dismissal claims, adverse action claims do not require a person to have been employed for more than 6 months, or to earn less than the high income threshold.
Employment is the contractual relationship between an employee and an employer. By defintion, all employees have a contract of employment.
The contract does not need to be in writing, but can consist of oral terms, or implied terms, as well as written ones.
Not all terms and conditions that apply to employment will be reflected in the contract of employment. Terms of modern awards, enterprise agreements, and various statutes may also apply. These terms are not normally contractual. However, any other term (such as for example, an rate of pay in excess of the Award), will be contractual in nature.
One of the tasks an employment lawyer performs is working out the terms of the contract of employment.
Legal fees are tax deductible in matters related to employment in some, but not all cases.
The broad proposition is that fees paid in connection with the performance or maintenance of employment (such as for example underpayment claims) are deductible, while fees paid in connection with allegations about the termination of employment are not. You should obtain specific advice on whether your legal fees are deductible.
Employment & Industrial law articles
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- the types of claims that may be available for you;
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