Events & Seminars Calendar

Membership Policies

Policy on Industrial & Legal Assistance to Members, Non-Members & New Members

Current Financial Members
Current Unfinancial Members
Past Members Rejoining
New Members with Pre-Existing Problem
New Members
Non-Members
General
Request for Reimbursement for Debt Recovery Advice for Self-employed Contractor form (47KB, 1 page)

1. Current Financial Members

(a) Industrial Assistance

Current financial members of APESMA are entitled to advice and assistance from APESMA staff on industrial and employment related issues on an as required basis. The Association will also represent these members in discussions with their employer or before industrial tribunals and dispute resolution bodies.

(b)(i) Legal Assistance [no change is proposed to existing policy which is repeated below for sake of completeness]

The Association's policy of providing legal assistance to existing financial members on employment related issues is based on the principle that in granting assistance a member is placed in a position which is equal to but not better than that of an unassisted member in relation to the payment of legal costs. As such before any assistance is granted the following conditions must be met:

The Association and its legal advisers must assess that there is a good chance of success in the proceeding. The costs of this assessment will be borne by APESMA provided that where the assessment is to proceed with a claim which is ultimately successful, the costs of the assessment will be recovered from the proceeds of the settlement.
There are reasonable grounds for believing that the proposed defendant has the capacity to pay any amount found due to the member.
An estimate of costs is made available to the Association.
Any limits imposed on the grant of assistance are set out in a letter offering assistance to the member. For example assistance may be limited to obtaining further opinions, commencing proceedings or taking the proceedings to a certain stage such as mediation. Estimates of costs for these various stages are to be provided by the Association's solicitors and limits imposed upon the total amount of assistance. Where circumstances change application can be made to APESMA for an increase in the amount of assistance.
The member will sign an appropriate agreement or acknowledgment of the terms under which assistance has been provided entitling the Association upon completion of the matter, either by way of settlement or verdict, to have the right to recover its costs from the settlement or verdict before any funds are disbursed to the member .
APESMA will not be liable for award of costs made against a member.

In cases other than where the assistance is provided in pursuit of legal principles that may impact on large segments of members and the Association agrees to provide assistance in an individual case, the extent of indemnity will be:

Until a case is resolved the Association will bear all legal costs on behalf of the member.
Where a settlement in favour of a member is made, the member shall reimburse to the Association the lesser of:
The total legal costs incurred by the Association on behalf of the member; and
Any amount of money determined as part of a judgement or settlement to be reimbursement for costs plus up to 10% of any award or settlement amount in favour of the member.
Where the case is decided against the member, the member shall reimburse the Association the total legal costs incurred less an amount determined by Federal Executive and assessed on length of Association membership of up to thirty five (35) times the full subscription rate in the particular year that the legal assistance is provided. In addition, the member shall pay any costs awarded to the defendant or agreed as part of a settlement reached.

The Association has the right to determine at any stage that it is not reasonable to continue the provision of legal assistance to the member in circumstances where:

The member acts contrary to advice from the Association or the Association's Solicitors.
Where the employer makes an offer which the Association considers should be accepted based on advice available to it and its own assessment of the position reached.
Where new evidence arises which substantially alters the original assessment of the merits of the case.
Where new evidence arises which substantially alters the original assessment of the employer's ability to pay the sum awarded.

In any particular case where assistance to a member is provided under this policy, the full details of the policy and the terms under which assistance has been provided will be made available to the Association's legal advisers and the member.

NOTE 1: This policy on provision of industrial and legal assistance to current financial members will also apply to those treated as having been members and admitted to membership as required by S168 of Schedule 1B of Workplace Relations Act 1996.

NOTE 2: See Sections 3 and 4 for application of Association policy on provision of industrial & legal assistance in the case of Past Members Rejoining and New Members with Pre-Existing Problem respectively.

(b)(ii) Legal Assistance – Advice on Debt Recovery for Self-employed Contractors

The Association's policy of providing legal assistance to existing financial members also provides for debt recovery for self-employed contractors.

This assistance will initially involve preparation of a debt-recovery letter by one of the Association's Legal Officers.

Where this letter is ineffective in recovering the debt, the relevant Industrial Officer will make contact with the National Legal Officer (NLO).

The NLO will decide whether or not to authorise the Industrial Officer (IO) to advise the member to approach the relevant local legal service for advice (the NLO will communicate his/her decision to the relevant IO in writing (email is sufficient)).

Where possible, no cost advice shall be obtained as follows:

an analysis of the contractual basis for the debt (including ensuring that the debt has been conclusively established);
where the debt cannot be established based on the contract, advice on action needed to establish the debt;
an outline of legal options to recover debt; and
a quotation on the likely cost of legal action required to recover the debt.

Where there is a cost involved in obtaining this advice, the matter may be referred to the National Board for consideration of reimbursement of the cost or part thereof.

The IO will forward a completed Request for Reimbursement for Debt Recovery Advice for Self-employed Contractor form. This form will be submitted to the Executive Director of Industrial Relations (and copied to the Connect Executive Officer) for presentation to National Board. The Connect Executive Officer will compile consolidated financial year statistics on legal expenses to self-employed contractors which will be submitted with the Connect report to each NB meeting. The member will generally be only reimbursed up to a maximum amount of the membership fee paid by the member for that financial year.

The Association has the right to determine at any stage that it is not reasonable to provide legal assistance to the member in circumstances where:

the member acts contrary to advice from the Association or Association's National Legal Officer;
the member's client makes an offer which the Association considers should be accepted based on advice available to it and its own assessment of the position reached;
new evidence arises which substantially alters the original assessment of the merits of the case;
new evidence arises which substantially alters the original assessment of the member's client's ability to pay the debt.

The policy will be accompanied by a Request for Reimbursement form which would be the process by which the member would be reimbursed for the cost of advice up to the amount of their membership fee. The National Legal Officer and Executive Director Industrial Relations will also need to compile a set of criteria by which authorisation for referral can be approved by the NLO.

2. Current Unfinancial Members

Current unfinancial members are not entitled to any industrial or legal assistance – see Section 6 – Non-members.

3. Past Members Rejoining

Members who left the Association in good financial standing and who wish to rejoin the Association with a pre-existing industrial problem will be treated as new members with a pre-existing problem (see Section 4).

Members who resigned from the Association or had their membership terminated with financial arrears and who wish to rejoin the Association with a pre-existing industrial problem will be provided no assistance for the pre-existing problem other than on terms determined by a Director, Executive Officer or Branch/Divisional Committee in each case which, in addition to the requirements in Section 4 below, may include payment of arrears due at the time of resignation or termination.

Intending members are to be advised of the Association's policy on provision of industrial and legal assistance to past members rejoining where a pre-existing problem exists.

4. New Members with Pre-Existing Problem

The provision of industrial and legal assistance to new members with a pre-existing problem at the time of joining the Association will be limited to industrial/legal staff making an initial representation on behalf of the member (e.g. by letter, phone or in person). This activity is contingent on the member paying a fee for service equal to the current full year's membership subscription. The member must also have commenced payment of the current year's membership subscription by bank or credit card deduction. Should the matter not settle at initial representation the Association reserves the right to both determine whether any additional assistance will be provided and to charge a further fee for service for the additional assistance at an agreed rate of not less than $120 per hour or part thereof and to require payment of disbursements (e.g. legal costs, court fees etc) for the further activity on behalf of the member.

In circumstances where it is necessary to obtain external legal advice and/or representation with regard to a new member pre-existing problem the member is to be responsible for all costs (including disbursements) whether the action is successful or unsuccessful. Appropriate arrangements for the payment of such costs is to be agreed before the costs are incurred.

Intending members are to be advised of the Association's policy on provision of industrial and legal assistance in circumstances where a pre-existing problem exists.

The level of service provided under this policy may be varied at the discretion of industrial/legal staff in special circumstances (e.g. where a recent graduate may not have been aware of the Association's existence; where the new member has himself/herself already recruited members to APESMA).

5. New Members

The policy position of APESMA with respect to provision of industrial and legal assistance to new members is that, unless it is evident the new member joined with a pre-existing industrial problem, they are entitled to the Association's industrial and legal assistance on the same basis as any other member (see Section 1).

6. Non-Members

The basic policy position of APESMA is that non-members of the Association are not entitled to any industrial or legal assistance.

However the Association recognises the need to engage non-members if they are to be attracted to membership. For this purpose Association staff should use contact from a non-member as an opportunity to market the Association and membership of it. This might for example require explaining Association activities and services and how these might benefit the non-member. In the case of industrial queries raised by a non-member it might require Association staff providing basic telephone advice that is not instructive or recommendative as to solutions but rather indicative of action the Association might take on behalf of a member. Even so, advice of the latter type should be given only if the non-member is willing to reciprocate the Association's willingness to assist by providing a name, address (and telephone number for follow-up) for mailing of a membership kit. Where the non-member refuses an offer of assistance on this basis, no advice however basic should be provided and the contact should be courteously discontinued.

In no circumstances should representations be made on behalf of a non-member.

7. General

Note that the Collieries Staff Division has its own policy on provision of legal assistance/ representation to members. This arises in connection with the member funded Legal Defence Fund operated by the Division