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Home | Q & A on 2GB discussing Workplace & Employment Law 22/7/14

Turner Freeman Lawyers Partners on 2GB

Topic: Workplace and Employment Law in relation to MH 17 crash

Tuesday, 22 July 2014


CS – Chris Smith/TS – Tanya Segelov & DS – David DT /C1,2,3,4 – Callers


CS       Well this will be an interesting segment because there has been a lot said about what has occurred with MH17 and I’d like to welcome to the program firstly from Turner Freeman, Tanya Segelov and David Taylor. Tanya and David thank you very much for coming in

TS       Thank you

DT      Hi Chris, how are you

CS       I guess when you look at what’s happened here taking away the horror the tragedy but looking at what now for the families and what now for the families of the staff who were on board that aeroplane as well. In these circumstances Tanya you’ve had a great deal of experience in your profession based on cases involving actions against airlines and actions over mishaps that occur on airlines. How does it work if you can never ever find the person responsible for an event

TS       Crashes on airlines and claims against aircraft carriers are governed by the Montreal Convention. If you cannot find any fault on behalf, or the actual onus is reversed, so if the aircraft carrier can’t prove that they were not at fault, then you are entitled to sue and recover against the airline carrier. If the airline carrier can prove that they were not at fault, that is they say we did nothing wrong, then there is under the convention, each person on board can recover 100,000 Royal Exchange Units which I looked it up today, it equates to about $164,000.00

CS       Royal Exchange Units

TS       Oh it’s not Royal, it’s standard, I’ll get you the exact phrase, it’s an international monetary until, it’s called the special drawing rights

CS       Ok so approximately $160,000 which would go to

TS       Each member

CS       Of the family

TS       Each person who was one the flight is entitled to that money. If on top of that, the airline can’t come and say we did nothing wrong, then you can sue them for all your losses. So for instance in this case the airline might be able to say, well we don’t believe we did anything wrong, this was the fault of a third party. And there might be such a claim as people saying, well that’s not entirely true, you chose in an environment where there was attacks on the air, there has been a previous cargo that had been brought down, the week before, you knew it was a war zone and other carriers including British Airways had decided to change their routes

CS       Yeah including Qantas

TS       And Qantas

CS       So that’s interesting so there would be a case there for, that you could argue to say that Malaysian Airlines should have taken or heeded the warnings from various authorities and taken the same decision as other major carriers

TS       Yeah and it would then be up to Malaysian Airlines to say, no what we did was not at fault, it was not negligent. If they could prove it wasn’t negligent then you would be stuck with $100,000 special drawing rights, if they can’t prove they weren’t negligent then you could have an unlimited claim. And you have to look at all the circumstances of the case. There are some airlines that are flying now that have anti-missile devices on the aircraft. So

CS       Commercial

TS       Commercial, if you look at, if you fly El Al Israel Airline they have anti-missile devices on their airlines. So there is some technology that could be argued was available to Malaysian Airlines if it chose to fly over what was a conflict zone where there had been missiles in the air.

CS       But then again they are 10 kilometres in the sky aren’t they. 10 kilometres in the sky it’s a long way to be

TS       Well the missile capability was double where they were at, so and they knew there were some missiles flying, it would all be as to whether a Court decided that the actions Malaysian took in not changing its route was negligent

CS       Alright I want to come back to possible action against those who are associated with the Russian Separatists in a second and therefore how that tort would change. But David in terms of the families of the pilot of the crew etc, would they now that they’ve lost their lives, their families are obviously grieving but after the grieving recedes to some degree they would have to think about what they do

DT      Yes certainly and there are some different laws that would apply to crew as against passengers, so in terms of the operation of international law, it isn’t the same between those two classes and different actions are potentially available for those two classes

CS       We will expand on that in just a second and if you’ve got any calls, if you’ve got a question to ask and maybe something that’s been bothering you in the last few days about where to now, Tanya Segelov and David Taylor from Turner Freeman can answer your questions, and you know the number, 131873. You know compensation can’t change the past but it will make a difference to your future, so if you’re suffering because of someone else’s negligence, turn to Turner Freeman Lawyers. Now Turner Freeman Lawyers are heavy hitters, the type of law firm you need on your side to win, and they have been winning claims for a long, long time. When a Turner Freeman Lawyer acts for you they draw on over 500 years of combined experience. The financial and legal resources of a national firm and a reputation as tough, uncompromising litigators who won’t rest until you get the compensation you deserve, so give Turner Freeman Lawyers a call, they’ve got offices throughout New South Wales and Queensland, you can visit, Turner Freeman Lawyers, when you need to win your case

CS       Eight minutes away from two. Now I do want to indicate to you that Turner Freeman is now appearing in your locate newspaper. And they have decided to form an alliance with your local newspaper, to provide information on a range of legal topics in a weekly legal matters column, so they will have their legal matters column in your local newspaper, for instance they might have a column on employment law, and I think this week’s column in the local newspaper network is on employment or they might have advice on Wills at another time, so look in your local newspaper for the advice that Turner Freeman offer in their new legal matters column and of course this is the legal matters segment on radio, on 2GB plus now for all you listeners who have questions for either David or Tanya, I can tell you that Turner Freeman has decided to provide a $100 Westfield voucher each week to the best question of the day, so maybe the best question turns out to be the one that stumps us all, or the most difficult question or the most colourful question or whatever, or the most appropriate question, we will decide that in the 2 o’clock news and we will indicate after 2 o’clock exactly who has won. But it’s $100 Westfield voucher each week, on Tuesdays to the best question of the day within the legal matters segment right here thanks to Turner Freeman, alright so I’ve got $100 up for grabs a Westfield voucher operating right now. I want to ask you a question based on what you have said to us before the ad break David. So there are separate laws for those who are working in the air, almost like it’s an international club of laws that is different to what the passengers would come under

DT      For those employed on the aircraft, so for crew on aircraft their primary relationship with the carrier is that of employment, so that’s the relationship that you would look to bring a claim

CS       But under which jurisdiction though, I understand that. Is it international jurisdiction?

DT      No, no the employment is in the country where the employment occurs. So if one was to look at say Australian carriers, most Australian carriers are employed, most Australian carriers employ Australians and the contracts of employment are Australian contracts. Although there are occasions where Australian carriers may employ people in contracts that aren’t Australian, some flight attendants for example. In the MH17 case you’d be looking probably, although I don’t know, at Malaysian contracts of employment and it would be the law of Malaysia

CS       Law of Malaysia

DT      That would be the relevant law

CS       Which makes sense. I want to ask you Tanya, just say down the track the international Court decides that 3 Russian Separatists are to blame for firing those missiles after obtaining eye witnesses and other Separatists who turned over to them, what would happen to those class actions from passengers against Malaysian Airlines and would there be separate legal avenues pursued towards those individuals

TS       There could be separate actions towards those individuals. Malaysian Airlines, the claim against Malaysian Airlines will be determined whether they acted negligently or not in what they did and that would be in continuing to fly over the Ukrainian air space and that would be regardless of who was at fault in terms of who fired the missile. In terms of whether you could bring a claim against the Russian Separatists or if indeed there was some proven link to the Russian Government. You’d look at the claim that was made in relation to the Lockerbie bombing of the airplane, that claim was brought against the Libyan Government

CS       Yes

TS       And was successful in recovering money against the Libyan Government, so there is some possibility about it. It does raise very difficult questions, first of all whoever you sue has to have money, so there is no point in suing and not being able to recover the money

CS       Especially a Russian Separatists that lives in a village up the road

TS       That’s right and that’s what you’d be looking at was there Russian Government support behind the action

CS       Ok, alright what we’ll do now that we’ve put all that on the table and we are starting to understand the legalities involved in what’s occurred with MH17 we’ll take your calls and calls on other workplace issues by the way, any matters of the elk, legal matters segment with Turner Freeman straight after the news at 2

You’re listening to the Chris Smith afternoon show right across Australia

This is the afternoon programme we’ll get back to legal matters in just a second but here is an interesting twist from the sporting code of football, soccer in Melbourne the current head coach of Melbourne Heart, John van’t Schip has suggest a boycott of the 2018 FIFA World Cup in Russian following the downing of the Malaysian Airline MH17, the former Dutch international and Ajax player was clearly angry at the devastation brought upon his home country which lost 192 people and of course the dozens that were lost from his new home in Australia, so he is saying, lets boycott, I say to the Dutch Government and FIFA boycott the 2018 World Cup in Russia, see how the actions of Vladimir Putin and the Russian Government go before suggesting and following that little advice and David writes to me in an email, I’ll tell you what I’ve received a vast number of emails this afternoon on flight MH17 and a lot agreeing with what I had to say about Vladimir Putin, but David writes for instance:

            Chris on a day when we continue to grieve the loss of innocent Australians in the Ukraine air disaster, Jacqui Lambie scraps the bottom of the barrel saying in the media she is looking for a well hung man. I’ve just called her office employing her to show some class (that would be impossible David) she is a senator for God’s sake, I don’t think my call was the first!

This is what Jacqui Lambie has done on a day, as David says rightly, where we are still grieving the loss of innocent Australians

[JL –” that’s fine love they must have heaps of cash and they’re got to have a package between their legs let’s be honest, and I don’t even need them to speak!”

(interviewer) “There was a cruel question that you said was cruel for a partner Jacqui”

JL – “oh yes are you well hung“]

Yeah, great stuff, 131873 is the telephone number and to all those people who have emailed thank you so much and I can tell that there is a great deal of anger at what we’ve heard from Jacqui Lambie today. I think Jacqui Lambie should thank her lucky stars that she is in the senate and they only vote every 6 years. 131873 David Taylor and Tanya Segelov in the studio, let’s take some calls, as I say what we’re doing the best caller of each segment the Turner Freeman legal matters segment each of our best callers each week will get a $100 Westfield voucher courtesy of Turner Freeman, so let’s get into the calls today, Dionne you have been waiting patiently David Taylor is your man

C1       Good afternoon how are you David

DT      Hi Dionne how are you

C1       Good, I’m in a bit of bind with my, my son goes to day care and the current day care has been taken over. Now we paid a bond to the previous day care owners and we are trying to get that bond back. The current owners are basically just wiping their hands saying we have to go to the previous owner to get the money back, I’ve got no idea how to go by that, who is actually liable for it, cause I haven’t seen the contract between the two companies when they were bought out

DT      What was the bond for? Was the bond a payment made to reserve the position in the day care

C1       Pretty much yeah, it was basically, if we were still in arrears and we decided to just go than they had money to take out of that. Now my sons, it’s never been a problem and now all of sudden when they’ve been bought out we have gone to the current owners and they are just wiping their hands saying

DT      And they’re saying well we don’t hold the bond

C1       Yeah that’s correct

DT      It would depend upon and you’ve identified this, the nature of the contract transferring ownership and control and operation of the child care centre. If what happened was there is the same company still operating the child care centre, then the bond still should be held by that company. If it is a new company and that was the nature of the sale then the old company would be the one that you would need to pursue. I would have thought where you want to go is the office of Fair Trading.

C1       Ok, yeah so it is a new company that has purchased the old company, so

DT      But if they have purchased the old company then the old company may still be operating and they may still have the bond in which case it would be the new owners who have acquired the company that would be responsible. I think you need to have somebody and I think the office of Fair Trading is the logical place to go who could actually look into for you because it sounds completely unfair

CS       Ok good on you Dionne, thank you very much for that. We have got a very serious traffic accident to report, Jason go right ahead

C2       G’day mate how you going

CS       Ok

C2       There is a trucking company in Box Road in Caringbah, he’s come out of depot on Box Road and lost a whole heap of concrete all over the road and has damaged about 10 cars in Box Road

CS       Sandwiched in 10 cars with the load did he

C2       No, he spilled his load over the 10 cars

CS       Over the top of the 10 cars

C2       Yeah it’s all sprayed right up against, as he’s gone around the corner in Box Road, he has just sprayed his load all of the side of the cars. I spoke to a couple of witness on the site and police are on the way

CS       Ok police on the way and he’s made, created a great scene there, Box Road, Caringbah. Good on you Jason, thank you for the information

C2       Cheers mate have a good one

CS       Alright and a Sydney cafe has been evacuated and 2 waterfront homes are under threat after a fire broke out in a suburban garage. Fire fighters were called to the blaze in Bay Parade in Malabar about 1 o’clock this afternoon. Superintendent Joshua Turner said 2 adjoining townhouses were under threat and a cafe had been cleared, paramedics are assessing 1 man at the scene for smoke inhalation, we’ll try and get an update for you on that within the hour. David go ahead you’ve got a question

C3       Yeah hi, thanks for taking my call, I was thinking of calling your company, we lost what was a lot of money to us in the Timbercorp fiasco and we live in Sydney they were Melbourne based. We were advised by a financial planner and I won’t name the company, but he was an employee, basically of a large financial planning company in Melbourne. Would they be responsible for what he did? Have we got any recourse to the main company

TS       You may have, it depends on the circumstances of the particular case and of course a lot of these things do come down to the facts of the case, what was the relationship between this man and the company? Was there some sort of contractual relationship or some sort of quasi employment relationship? Was he acting under their imprimatur? Did he use that company to help sell his product, so it really does depend on the facts of the individual matter and there have been a lot of successful claims brought against financial planners, they are difficult claims but we have seen successful claims brought in relation to some financial planners, so it’s something that is worth investigating

CS       Hey David, I’ll tell you what I’m going to do, I think that is a very good question and you are probably speaking on behalf of a lot of those who have been burnt, how about we get you the $100 Westfield voucher

C3       Oh that would be great

CS       There are all yours David. The $100 Westfield voucher and you obtained some advice there from Tanya which I hope will help you out as well. Stay right there on the line and we will get you the $100 Westfield voucher, time is up, I’m gone, I’m out of here. You fix your cold up David Taylor

DT      Yeah it’s getting better

CS       Echinacea? Vitamin C tablets

DT      Does that work the Echinacea

CS       Yeah what’s that other thing Lemsip

DT      I’ve been keenly consuming Lemsip

CS       Yeah I don’t mind Lemsip. Tanya thank you very much for coming in

TS       Pleasure, thanks Chris

CS       Tanya Segelov and also David Taylor who hopefully will be back all clear from that cold, talking employment law and aspects related to the crash of MH17. We will take a break, don’t forget, we will do that every week, whenever you call and have your questions answered within the Turner Freeman legal matters segment you’ll be able to win a $100 Westfield voucher, we will do it again next Tuesday.

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