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Policy Bulletin 2 / 16 (Amendment to Civil Law Policy-employment law matters)

1 Feb 2016

The Legal Aid NSW Board has approved an amendment to the Civil Law Policy relating to employment law matters.

Background

Legal Aid NSW established an Employment Law Service in 2011. Since establishing the service Legal Aid NSW has assisted thousands of clients in relation to their employment matters. Most of the assistance has been provide by way of advice and minor assistance. While many clients would have benefited from a grant of aid, legal aid was only available in limited circumstances. The Legal Aid NSW Board has approved changes to employment law policy to more accurately target the types of vulnerable clients needing legal aid for employment matters.

Policy changes

A new ‘at social disadvantage’ test

The main change to the policy is the introduction of a new test, the ‘at social disadvantage’ test. Legal Aid NSW previously required an applicant to be ‘at special disadvantage’ to be eligible for legal aid for employment matters. That test required applicants to have a substantial difficulty dealing with the legal system by reason of a substantial psychiatric, physical or intellectual disability. The ‘at special disadvantage’ test did not capture some of the most vulnerable employees which meant legal aid was not available to applicants who were significantly disadvantage. In order to more accurately target those most in need, the ‘at special disadvantage’ test has now been replaced with the ‘at social disadvantage’ test. The ‘at social disadvantage test’ will better target applicants who are vulnerable in employment. In assessing whether an applicant is ‘at social disadvantage’ Legal Aid NSW will consider factors including:

  • the applicant’s level of personal disadvantage including the applicants level of education, training and skills or whether the applicant mental health problems, or  an ongoing heath condition or disability, or
  • whether the applicant is an Aboriginal person, a child or a victim of or at risk of domestic violence, and
  • the level of the applicant’s financial disadvantage (such as no savings or alternative sources of, or access to, funds, or are in debt and have unstable housing).

The applicant must satisfy the financial vulnerability criteria and either satisfy the personal vulnerability criteria or be an Aboriginal person, a victim of domestic violence or a child: the criteria are set out in the ‘at social disadvantage’ guidelines.

Further changes - employment entitlements policy

Under the previous policy, legal aid was available for recovery for employment entitlements up to a limit of $20 000. Under this policy, Legal Aid NSW was unable to grant aid in worker exploitation matters where large amounts were owed. Workers can access dispute resolution processes for small claims without the assistance of legal aid; for example through the Fair Work Ombudsman.

The policy has now been amended to make legal aid only available in employment entitlements claims in excess of $20 000. This allows Legal Aid NSW to represent workers who are the victim of gross exploitation, whilst workers with smaller claims can access services of other agencies for assistance.

Where do I find the changes?

The changes can be found on Policy Online, Civil Law Policy 6.13 and Civil Law Guidelines 3.3.

Commencement date

The changes are effective for determinations of applications made on or after 1 February 2016.