Partners providing Q & A discussing Asbestos and Employment Law 12 December 2013

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CS – Chris Smith/DT – Tanya Segelov & David Taylor /C1,2,3, etc – Callers 

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VOICEOVER

And now legal matters with Turner Freeman Lawyers, great people, great results, great value.

CS       Last of the year, last of 2013 for our legal matters segment sponsored by Turner freeman.  I thought I would do something different today. I have got an interesting case to discuss with the help of Turner Freeman partner, Tanya Segelov about a former Qantas flight attendant who is suing the Australian Government after he developed Parkinson’s Disease. Now the actual legal case has not been lodged, we are not up to date but I understand there has been almost an inundation from other attendants who work for Qantas as they investigate whether they could possibly be included in this case. Now Brett Bolus says his Parkinson’s Disease was caused from long term exposure to the insecticide spray used through aircraft cabins in Australia and we all remember the spray used before we got out of the cabin and headed down into customs. Now we will also get to David Taylor who will be able to take your calls and your queries on employment workplace legal questions of course, in comes Holden as soon as you mention redundancy and the end of an old workplace so we will talk to him about that but first of all Tanya, thank you for coming in today.

TS       It’s a pleasure.

CS       Is it a hectic time of the year as people want things done before Christmas day, make sure you have got it done and then you say to them well hang on, we are breaking for Christmas well probably on 20 December so there is all roads leading to the one day/

TS       Yeah, it’s incredibly hectic but most of us are back at work very early in January and it has been a long time since the Courts closed and you couldn’t find a Judge in January, most Courts have Duty Judges sitting and if anything is urgent things can be dealt with, so it’s really a week or 2 that people are off but this incredible panic every single case has to be finished by 20 December.

CS       Exactly, councils are finding that out as well in terms of buildings etc. Brett Bolus, tell us, did he come to you.

TS       He did come to me, it’s a very interesting case in fact his suspicion was sparked when he was diagnosed with Parkinson’s Disease, his neurologist took his history from him and asked him what he did and he said he was a long haul flight attendant with Qantas and the neurologist said “what’s going on over there, I have a large number of long haul flight attendants on my books” and that sparked something in my client who started to investigate and he started to ask around other flight attendants why do flight attendants have Parkinson’s above what the average should be for that _______? and what he discovered very quickly was the link between insecticides and Parkinson’s which is a well-known link.

CS       It’s a well-known link is it?

TS       It has been reporting the medical lecture for decades and it has mainly been in relation to farmers and exposure to spray on farms and there have started to be some studies about flight attendants and what those studies have shown and what we know totally is an increase in numbers amongst not only flight attendants, pilots, flight engineers, people who were working on board aeroplanes where they were spraying insecticides.

CS       Why did we spray it by the way, was it a way to get rid of any overseas mosquitos that was on board?

TS       Yes, and it is still sprayed now it is just no longer sprayed while passengers are on board, it’s sprayed now before anybody gets on the aircraft. It is part of a world-force organisation requirement and we have signed up to the treaty, so we are required to spray it to carry out protection measures, but what the Australian and New Zealand Governments did for a long period of time until the end of the 90’s and early 2000’s was they mandated that the spray happen at the top of descent with the flight attendants with a can in each hand walking through and spraying while the air conditioning system is turned off so people are inhaling the spray and you look at someone like Brett he did this once a week, once a fortnight for over 10 years, so while most people may have 4 or 5 recollections of being on a plane when its sprayed, he is doing this repeatedly.

CS       Now, since you gathered some momentum in terms of media and publicity for the case, how many other flight attendants have contacted you?

TS       I have had in excess of a dozen contact me in the last 2 days. I know the Daily Telegraph have also had a large number of people contact them and I expect that we will continue to have people contact us because I don’t think people who have had the diagnosis ever made the connection between their work and the diagnosis.

CS       So who do you sue?

TS       Well in this case who we are looking at suing is the Commonwealth Government because they were the ones that not only mandated the spray but they mandated the method of spraying and it was always open to them to have the residual method of spraying which is now in operation whereby the spraying happens in the hangar not by the crew but a ground staff who are properly protected wearing masks and suits and so you therefore limit the airborne exposure.

CS       Okay, but do you have to prove or is it not up to you to prove this. Do you have to prove that this was a case of neglect or a case of recklessness?

TS       We have to prove negligence so we have to prove that the Commonwealth knew of the dangers or the risk of injury to this group of people or should have known, should have carried out investigations to see what the long term effects to people who were repeatedly exposed to this substance.

CS       Okay, so for those people who may be listening who think they might be in the same boat so to speak, they contact Turner Freeman and they should try and navigate their way to you, Tanya Segelov and you can look at their case, obviously sit down with them and see if a study can be done which may lead to them being joined. Now, you haven’t launched any proceedings as yet.

TS       We haven’t, we are waiting to receive some documents under the Freedom of Information Act request.  We think the link is established and we think we should be able to bring a claim but we really need to see the documents about the processes and procedures and what they knew and what research they carried out.

CS       Okay, this is interesting, Richard is raising a question here on the open line about customs officers, Richard – quickly.

C1       Yeah, I was 32 years in the customs service and customs officers were regularly forced to be aboard airfreight coming into Australia at every airport _____?? coming into the country and they were consistently ordered to spray the aircraft and once the aircraft had landed they would be locked up or prior to departure.

CS       So there’s your second series of complainants possibly.

C1       And it follows along with a cover up inside the customers boarder protection service on the poisoning of customs officer searching shit over a number of years and that has been covered up by the Commonwealth. I don’t expect any help from the customs agency or Commonwealth. They will be ducking and weaving on this left right and centre.

CS       You may not want to contact Tanya, you may might want to contact him.

TS       I think anybody who has had an exposure to the insecticide and we can show that link it is worth investigating that claim and I think airlines are very interesting because you are in an enclosed environment, there is no way to escape that so if you have a repeated exposure in an enclosed environment to a knowing toxic substance that has been linked for decades and decades to Parkinson’s Disease, it is worth having a look at.

CS       Okay, Tanya can I ask you to stay here because although I will take calls for David next on employment law, I am sure there will be some other questions that may be of interest to you or it may be interesting to hear what you have got to say with callers. It’s 12 minutes away from 2 o’clock. Tanya I was just reading a couple of emails that have come in, there is one here from Stephen. I have just flows Philippine Airlines this Monday and on arrival in Sydney spraying was conducted with passengers inside the plane. John says, I was on board a British Airways flight from London in October and the cabin was sprayed by cabin crew in-flight as we approached Sydney. Rob says they still do spraying when flying into Sri Lanka says Rob..

TS       As I understood it they didn’t spray anymore flying into Sydney so I find those interesting and want to know more about the ones that are spraying coming into Sydney. When they spray going into Sri Lanka they are still spraying a number of countries flying into Cuba, flying into India, flying into Sri Lanka, they do still spray and that’s because that’s a requirement of those countries to spray coming in. As I understood it is not a requirement anymore to spray coming into Australia provided the airline is sprayed prior to departure, so there may be some reason in those cases why they were sprayed.

CS       Okay, 131 873 is our telephone number, our legal matters segment sponsored by Turner Freeman. We have got David Taylor from Turner Freeman and employment expert in the field. You can ask him a question, go right ahead and it doesn’t matter what part of it, he doesn’t seem to be troubled by most questions, he is a real expert at this Davit Taylor, good afternoon.

DT       Good afternoon Chris.

CS       I want to talk about Holden of course. Now say I worked for Holden and I want to get in on some of this fantastic redundancy money but I don’t want to wait until 2017, because I think if I wait until 2017 I am either going to be untrained or unsuitable for certain work. I am going to be older, much older so I want to get out soon but I want to get part of the redundancy, should I be going to my union? I guess I can but maybe I have got more faith in myself doing the deal with Holden. Can I do that?

DT       There is no in principle or logical reason why you can’t go to Holden and have a direct conversation with them yourself. It is certainly one of those things where you have got workers who know that their jobs have got a limited life span, they need to have a look at all the circumstances and say, well it may be that I am going to get a big redundancy payment in an identified period but if I was to move sooner, even if I get less or get nothing that may actually be in my overall economic need and it can be a really hard decision because when you look at redundancy payments and it is a big lump of money, they can look quite attractive but the way most people earn money genuinely is not through big payments but through long work, you know working over extended periods of time.

CS       I worked for Derryn Hinch once at Channel 7 many years ago, they made the show redundant, all us reporters were made redundant, I then moved over to Channel 9 in the same kind of business but I received a redundancy payment. Now tell people what the tax implications or the lack of implications for someone who gets a redundancy payout.

DT       There is a different tax regime around redundancy payments for, and I am not a tax lawyer, but for workers under 65 once you are over 65 it is taxed not as a redundancy, if you are under 65 the first portion of it, and there is a formula in the Tax Act is untaxed and then after that it is taxed as an eligible termination payment.

CS       As I remember it, it was only 5% that was taxed.

DT       No well, it depends on the amount so it is something like about $8,000 plus $4,000 per year that service is untaxed and then after that it becomes taxed and that is a ballpark figure, so it maybe that the Holden workers have got long periods of service have quite generous redundancy payments so they will have big amounts that are untaxed and then the remainder will be taxed but not at the same rate as normal tax.

CS       The most common employment law case that came up during the year, the most frequent one that you had to deal with in 2013.

DT       I think the most frequent one that comes to us is one that we struggled to help are people who are just struggling with the interpersonal relationships or workplace where the relationship with the boss isn’t working as well as it used to where there is a change in manager and you have got 5 or 10 years where you have been seen as a very high performer and there is a new supervisor and the new supervisor doesn’t like you and the relationship changes and it is trying to navigate your way through that sort of difficulty that causes most people grief in the workplace.

CS       Does it help if you have seen some of this come on and you start taking notes, does it assist you down the track if you get into strife?

DT       Always, always even if you are doing nothing with it to have the record to confirm conversations and emails, I think always it’s a great idea for people if something happens to record it in an email so send an email to their boss or somebody and say “thanks for the conversation I confirm that I will do this or that you will do this” so that it is there on the record and can be relied upon later.

CS       Okay, can I ask you to stay quickly after the news for 5 minutes after the news because there are some other callers I would like you to get to taking us in a different direction

David Taylor and Tanya Segelov from Turner Freeman, our leg matters segment. We will do a little bit more after the news and of course we have got a bit of good tucker later, some Christmas tucker at that.

VOICEOVER

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

CS       This is the afternoon programme. We have extended our legal matters segment just after 2 because we have some callers that I wanted to get to and also some very interesting emails on this issue that is being handled by Tanya Segelov from Turner Freeman over the connection between Parkinson’s Disease and the flight attendants spraying its insecticides but it sounds as if some of these insecticides are still being sprayed and I will get to those mails in just a second. Now compensation can’t change the past but it will make a difference to your future so if you are 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 time. When a Turner Freeman Lawyer acts for you they draw 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 have got offices throughout NSW and Queensland. Visit the website turnerfreeman.com.au to find the details of your nearest office, Turner Freeman Lawyers when you need to win your case. I have got David Taylor, our employment expert and also Tanya in the studio right now if you have got calls, they will be here for a couple of more minutes and you can ask your questions. Brian go right ahead.

C1       G’day Chris

CS       G’day.

C1       I have just come back from a flight from Hawaii about a month ago today and we were sprayed in Sydney. The plane landed and they said we have to stay seated and they were getting the ground crew on to come in and spray and we were all just sat there for about 15 minutes and all the overhead lockers were opened and they sprayed right through the whole plane.

CS       Okay hold on there, I have got someone from within the airline industry, Julian who has just written an email to me and he says this. To answer your question regarding spraying, aircrafts are residually sprayed and upon inspection into Australia the certificate has expired then the cabin will be sprayed. What do you know about that Tanya?

TS       No, that is true. There is a discretion amongst the ground staff if there is some question as to how the spraying has been done and residual spray refers to a spraying before the passengers get on the aircraft if that has expired in terms of the hours or if there is some question that it wasn’t carried out correctly or if there is some extra concern because of a particular bug or a particular disease that they are worried about there is a discretion for further spraying.

CS       So the point is, unlike the situations and scenarios you are referring to in the case involving Mr Bolus, these are sporadic spraying with passengers.

TS       As I understand it but the vast majority of spraying coming into Australia it is now done as residual spraying which is done before people come into Australia, that’s not to say people won’t be sprayed going into some foreign countries that still requiring spraying in the cabin.

CS       Okay, Alan writes in this email that he came back from Hawaii last month and we were sprayed in Sydney. We flew to Hawaii from LA but weren’t sprayed when coming in from there. Both flights were with Hawaiian Airlines, I just thought you should know that. Peter says returned on Hawaiian Airlines direct from Honolulu in October and remained seated. Another person, not the cabin crew, came on board and opened all the overhead luggage compartments and then walked along and sprayed inside all the overhead luggage compartments, they have travelled to the USA annually since 1988 on Qantas or Virgin and cannot recall being sprayed before though coming from LA.

TS       It is the seemingly the US spraying on flights coming into the US in 1979 when the Centre for Disease Control in the US said or determined that they risk of harm to passengers and the crew from the spraying was greater than any benefits to be carried out from the spray and in the Clinton Administration, the US lobbied very hard for countries such as Australia to relax the requirement that the American aircraft coming in would have to spray and they actually went to the measures where the airlines advised passengers before they booked the flight, this is a flight that you will be required to be sprayed on.

CS       Yeah, it’s interesting, Adam says in January this year I was on a Jetstar flight from Honolulu to Sydney and upon approach to Sydney Airport the cabin crew walked up and down the aisle of the plane spraying aerosol cans, the crew themselves were wearing masks, the passengers had no protection.

TS       It’s good to know that at least now the crew are offered some form of protection of course when my client was carrying out the spraying there was no form of protection offered. I think we need to also differentiate between like most things there is a dose reaction so if someone is only as a passenger going to have contact with this spray very infrequently it may cause short term irritation but any long term symptoms are likely to be less. What we are talking about is long term frequent exposure.

CS       Absolutely. George, you have a question for David Taylor. Go right ahead George.

C2       G’day look I have a lady friend who works in an office and there is an individual there and I won’t call him a man because he is a real mongrel and he has been bullying her for quite some time and she is now off on stress leave, can she sue that individual?

DT       It would depend on the reason why he took the action that he took as to whether or not she could sue him. Certainly she has a number of options available to her. One of the particular options would be that she may be able to go to the Fair Work Commission as of 1 January next year and seek the assistance of fair work in dealing with what are known as bullying disputes so as of the start of next year there will be new power for the Fair Work Commission to assist in incidents of workplace bullying and try to work out a way through it. The Commission won’t be making any payments. It is not a compensation jurisdiction it is just the Commission trying to assist people in what is a really big issue in workplaces.

C2       Can I go and castrate him?

DT       Haha

CS       Hahaha rhetoric surely.  Thank you 131 873 I have ran out of time. Haha what a way to end the year of 2013 in this particular area. I am sure you have heard similar things in private counsel. Merry Christmas to you both, thank you very much for your contributions through the year and of course to Dave as well.

DT       Thank you Chris.

CS       David Taylor hahaha and Tanya Segelov, what a way to end a stirring series of programmes with Turner Freeman for 2013. No you can’t George and you won’t get any counsel here recommending you should.  Sixteen minutes after 2.