Tales from our busiest-ever 12 months in pro bono

Employment rights could be quickly eroded by the pandemic, particularly for women, as well as vulnerable workers on visas who are ineligible for JobKeeper or JobSeeker. Here are three examples.

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We acted for a restaurant worker, who was employed under a visa. When the NSW Government issued business closure directives in March 2020, the restaurant closed for two weeks, and all staff were temporarily stood-down. Once the restaurant re-opened, the owner stopped paying our client's wages, and told her she would receive wages only if the restaurant made a profit. Until then, she was expected to work for free. When our client refused, she was stood down. The restaurant remained open, but only staff who qualified for JobKeeper were given work.

After months of not earning a wage, our client was forced to give up her rental accommodation and live out of her car. With no prospect of finding alternate employment, she had to return to the Czech Republic. We helped to bring an unfair dismissal complaint, where our client appeared by telephone from Prague at the conciliation conference.

The matter settled for payment of around $16,000 in unpaid wages and entitlements. Our client wrote that:

I can’t say how grateful I am for all your work and time, you helped me much more than only with the monies, you pulled me up from an ugly place, always with positivity and honesty. I have a confidence now that there is a reason to fight even when the whole world and all things happening are literally against it - pandemic or anything else.

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In Brisbane, our hostel worker client had worked regularly for 3 years at 30 hours a week. When COVID-19 hit, the employer cut her shifts to 13 hours per week, and told her that she would only be paid for 10 of those hours. Our client was on a visa, and not eligible for JobSeeker. She really struggled to survive on her measly wages. When she asked about her pay and conditions, she was sacked.

During the unfair dismissal conciliation before the Fair Work Commission, we overcame the employer's argument that our client could not bring a claim because she was a casual employee who had been stood down due to COVID-19. Our client then was able to negotiate a satisfactory payout.

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One employer thought he had the perfect out, when he used COVID-19 as cover to make our pregnant client redundant. In reality, his conduct was nothing more than a blatant example of pregnancy discrimination.

Our client was a full-time real estate manager. In March, her GP identified her as having a high-risk pregnancy, and advised that she work from home. Her role was well-suited to working from home. However, shortly after our client passed her GP's recommendation to her employer, she was redeployed to a front desk receptionist role, and told that there was no way she could perform that new role from home. No other job at the real estate agency was restructured this way.

Within one week of requesting that she take "no safe job leave", our client was made redundant. We lodged a general protections application in the Fair Work Commission, where our client settled the matter for $20,000.

COVID-19 suddenly made life much less secure for many people. From the start of the pandemic, we saw a real increase in clients in private rentals who had lost their jobs and were now at risk of losing their housing. Here are two clients and their families, saved by our Homeless Law team, whose lawyers had to learn quickly how to navigate the complex overhaul of tenancy laws and regulations.

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Tran (not his real name) is a single father, living in a private rental property with his two teenage sons. Tran lost his job in the first wave of COVID-19, and soon fell $4,000 behind in rent.

Tran attempted to negotiate a rental reduction with his real estate agent. A language barrier made that negotiation even more challenging. The landlord issued a termination order application for failure to pay rent.

We appeared for Tran in the brand-new rent reduction conciliation process created by the COVID-19 Omnibus (Emergency Measures) Regulations 2020 at the Dispute Settlement Centre of Victoria. Despite this being an unfamiliar process for all involved, we managed to negotiate an agreement to reduce Tran's arrears and his future rental payments by 45%, and give him until 2021 to pay off the reduced balance. This was a huge relief to our client and his two boys, and gave Tran enough time to get his head back above water.

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We also acted for Chloe (not her name), who lives in private rental with her daughter. The daughter was in Year 12. Chloe had survived family violence perpetrated by her ex-partner, who had finally left the home.

Chloe's ex-partner had been the sole tenant on the lease, and the landlord said that she could only get a tenancy transfer into her own name, if she paid her ex-partner a sum equivalent to the bond under the lease. Chloe had just lost her job due to COVID-19, and could not afford to do this. The landlord then filed an application for the termination of our client's tenancy.

All of this horror was going on while Chloe's daughter was studying virtually and undertaking her Year 12 VCE assessments from home during lockdown. Chloe was deeply worried that if she lost her home, it would impact severely on her daughter's education.

We filed an application in VCAT for the creation of a new tenancy agreement in Chloe's name, and negotiated with the landlord to finalise a formal tenancy transfer that would secure her housing. We also assisted her to obtain brokerage to cover the bond payment. Chloe could remain securely housed during the pandemic, and give some stability for her daughter during her VCE exams.

We are acting for residents of a retirement village, whose circumstances changed dramatically after new management took over this year. It was announced abruptly and without consultation, that, despite an existing Residential Agreement, residents would no longer be provided with three daily meals. Instead, only a basic lunch was to be provided. The fees remained unchanged, despite the residents now receiving 14 fewer meals a week. If they wished to receive breakfasts and lunches, the residents would need to pay what would effectively be the remainder of their pensions.

The new arrangements were made even worse by the COVID-19 lockdown, which prevented residents from being able to leave their homes to purchase their own groceries.

We have been negotiating a proportionate reduction in the service fees payable, so as to account for the reduced meals. It is extremely difficult to imagine, given our clients' very limited bargaining position, that they could have achieved any solution on their own.

Children's Ground is a First Nations organisation leading transformative work to break the cycle of intergenerational poverty, injustice and inequity in Australia’s First Nations communities.

A team across our Sydney and Darwin offices helped Children's Ground to acquire a former property of the Institute for Aboriginal Development (then under administration) in Alice Springs, for the benefit of the local Arrernte people.

This matter was the complex acquisition of a distressed asset. involving at various times the negotiation of a Deed of Company Arrangement with the administrator of the Institute for Aboriginal Development, a potential Joint Venture Agreement for use of the asset post-acquisition, a first-in-class tripartite financing arrangement to allow donors to leverage their donation to Children's Ground through a back-to-back loan from a third party social financing organisation and structured security package, as well as property diligence and closing, including consideration of contamination issues and a complicated stamp duty position.

Just read that sentence again. "Complex acquisition" does not begin to describe it.

The end result of our work is that a community of Elders and traditional owners, some of whom live in tin sheds without reliable water or power, have secured land and infrastructure on their traditional country, to support their leadership and vision for generational change. First Nations' knowledge, language and practice will be protected and promoted alongside the provision of integrated early childhood services education, health promotion, employment, enterprise and community development.

Jane Vadiveloo, Children's Ground's CEO wrote to thank the Clayton Utz team:

I cannot express how deeply grateful we are for your extraordinary work and efforts in realising this dream for Children’s Ground and the Arrernte Elders and leaders. Your commitment and professionalism has been truly outstanding. We feel humbled by your support. It really is quite incredible. Thank you. You will always be part of this significant moment.

 

One of our cases this year highlights how fraught the religious discrimination debate is, when applied in the real world.

Our client had been a teacher at a Christian College for more than 5 years. Following the marriage equality plebiscite, the College required all staff to sign a "Statement of Faith" which said that they personally believed that marriage could only be between a man and a woman. Our client has a strong Christian faith, and she believed that marriage could be between two people, regardless of gender. She could not in all conscience sign the statement, but did agree that she would teach the College's position. Unfortunately this arrangement could not work out, and eventually she had to resign from her job.

Our client brought a claim in the Victorian Civil and Administrative Tribunal, on the grounds that her employer had discriminated against her because of her religious and political belief that marriage could be between two people, regardless of gender. She told her local paper that: "I am bringing the case to let my LGBTQI+ students know that they aren't deformed or disordered. They were created as they are, in the image of God, and … share equal dignity with all human beings" .

At mediation, we secured a significant settlement, including the College providing a positive reference about our client's teaching abilities.

Our client was a well-respected teacher, whose religious beliefs did not mirror those of her employer. She didn't teach religious studies - she taught English, drama, Spanish, cooking, textiles, creative writing, and coached the basketball team. The case highlights very clearly many of the substantial impacts of the proposed Religious Discrimination Bill, in the workplace, on both the LGBTIQ community and its supporters.

Over the last decade, Clayton Utz has provided more than 2,150 pro bono hours to the South West Aboriginal Land and Sea Corporation, to make Australia's largest-ever native title settlement a reality. The South West Native Title Settlement affects 30,000 Noongar People and covers approximately 200,000 square kilometres in south western WA. (The area involved is bigger than Victoria).

The South West Native Title Settlement resolves all native title claims in Noongar country, formalising six Indigenous Land Use Agreements in exchange for a $1.3 billion package of benefits that includes:

• recognition of Noongar people as traditional owners of the land through an Act of Parliament;
• land access for customary activities;
• funding of a Noongar Cultural Centre;
• a perpetual Noongar Boodja Trust, receiving annual instalments of $50m;
• the establishment and secured funding of seven Noongar corporations;
• heritage and conservation agreements, including a collaboration framework for identifying, recording, protecting and managing Noongar heritage values and sites;
• a Noongar Land Fund of up to $46m over ten years for land-related projects; and
• a housing program, transferring and refurbishing 121 properties to the Noongar Boodja Trust.

In November we were in the High Court, successfully opposing the grant of special leave to challenge the registration of the Indigenous Land Use Agreements underpinning the South West Native Title Settlement. This removed the final hurdles preventing implementation of what has been described as Australia's First Treaty. It is such a significant moment in our history. The South West Aboriginal Land and Sea Corporation praised the settlement as "a great opportunity for our Noongar people to come together, to control our own destiny, and to build a solid future for generations to come".

It is hard for us to believe, but this year we acquired a speciality in appearing in the Local Court, for women whose ex-partners or boyfriends are suing them to try to claim money spent during their relationship. These guys' playbook is always the same - alleging that there was a loan agreement in place, which now must be repaid.

Everything is said to be covered by these alleged loans, be it Uber Eats deliveries, Christmas or birthday gifts, even a washing machine in their shared apartment. Of course, none of these angry men ever could produce written evidence of a loan agreement. One particular plaintiff might have given the truth away when he filed evidence that he expected that $200 he had once spent at Westfields now had to be repaid because our client had not agreed to sleep with him that same night. "This was the basis of the loan of funds ", said his optimistic affidavit.

Each of these matters was proved to be bogus and has been dismissed. At their heart, the cases have been about revenge and bullying, brought by ex-partners who still want to control a woman with the temerity to have left them. We're glad to have got in the way.

Every year we act for far too many vulnerable workers who have been exploited and underpaid by their employers. This is a story of one of these clients, who was underpaid for years and years.

Our client, who we will call Zheng, migrated to Australia from Shanghai. He found work as a kitchenhand at a food court restaurant, where he worked long hours, up to 12 hours a day, 6 or 7 days a week. He was paid in cash, well below the minimum wage required by the relevant Award. His employer failed to deduct tax or pay superannuation, and refused to provide Zheng with any employment documents. Zheng endured these conditions for seven years, before he was sacked by his employer for being 'too old and too slow'.

Zheng speaks very limited English, which proved a real barrier in finding out that he had legal rights. It took a few years after losing his job before Zheng became aware of just how significantly he had been underpaid. He is now in his sixties, with limited employment prospects, and only recently allowed himself to apply to Centrelink, having been too ashamed of what he saw as a failure to support his family. By the time he came to us, most of Zheng's wage theft claim was out of time.

We helped Zheng to advise the ATO as to why he had not put in tax returns, and then brought an unpaid wages claim in the Federal Circuit Court against his former employer. Our opponent produced evidence of what turned out to be fake work rosters, which claimed that Zheng had only worked 3 days a week. We were able to go through these documents forensically, and use Zheng's text and messaging records (all in Mandarin), to show that Zheng was reporting daily sales figures to the restaurant's boss, on many days when supposedly he was not rostered for work. We also used passport records to show that Zheng was out of the country on 17 of the days that the rosters recorded him as working. Needless to say, the claim was settled at mediation, for $70,000.

When Zheng received his settlement money this month, he wrote to tell us what our representation had meant to him:

Sincerely thank you, it is you who let me see what is the power and dignity of the law, through your unremitting efforts, finally in exchange for today's harvest, thank you very much! I wish you all good health! Merry Christmas!

We are so glad to have been able to help Zheng to right this wrong.

 

The brazen dodgyness of some companies is amazing. Here are two examples where we fought this year for clients caught up in scams.

A young woman in Townsville got caught in a payday lending trap. She borrowed $500 on Christmas Day 2018 from a payday lender based on the Gold Coast. 15 months later, when she came to us, she had already repaid $1,400 on the loan (by direct debit), and the lender said that she still had a further $1,100 to go!

The scam worked through the finance company offering a loan with charges equal to only 5% of the loan amount, but with a related company charging ‘financial supply’ and account fees for providing a ‘fast-tracked’ service for prompt payment of the loan into the consumer’s bank account. These second-company fees, and the amount charged on default, are uncapped, leading to the sort of situation where a very low-income borrower such as our client can be asked to pay back 5 times the amount she borrowed.

We negotiated a settlement that resulted in our client's complete release from the loan, including the $1,100 in unpaid fees asserted by the lender, together with a $250 cash refund. The client was delighted with the result and glad to have these sharks out of her life, once and for all.

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We have acted all year for a number of elderly clients (some in their 90s), who lost their life savings in the collapse of the Sterling Group. They had invested in the "Sterling New Life" accommodation scheme. This complex investment product was sold to our clients as having the return on their investment supposedly being sufficient to pay the rent and all costs on a 40 year lease over homes owned by another Sterling company (now in liquidation). Inevitably, the model failed.

At some point, an unrelated company registered mortgages over the properties, and when the money stopped coming in from the Sterling, the new mortgagee commenced proceedings to evict our clients as the tenants. We have been involved in those eviction actions, both before the Magistrates Court and Supreme Court.

Exploiting highly vulnerable people is reprehensible. Sometimes it takes legal intervention to put things right.

We were able to set aside a contract for the purchase of an apartment and recover a $6,200 deposit, for a really vulnerable client who had signed the contract under duress while she was experiencing a mental health episode.

Our client was referred to us by the Health Justice Partnership run by Inner Melbourne Community Legal. Health Justice Partnerships embed lawyers in hospitals and community health settings as part of the health care team, to address legal issues which get in the way of patient health.

We will call our client Sarah. She had turned up at a real estate agent, saying she wanted to buy an apartment. Sarah had only just been released from an involuntary admission to hospital, and we think that she had presented that day looking obviously unwell. The real estate agent completed a sale there and then, on an apartment that he had online. Sarah didn't even visit or inspect the property. She certainly didn't have the funds to afford the apartment. English was not Sarah's first language, and she failed to understand the terms of the written contract.

Sarah was overcome with emotion when we told her the outcome and the return of her life savings. The risk of the contract of sale being enforced had caused Sarah significant distress. One of our lawyers involved told us that this was an extremely rewarding matter to conduct:

I am incredibly grateful for the experience of getting to meet [Sarah] and fight for her rights in this matter. Not only did I get to engage in a number of complex legal issues, but seeing how much the result meant to our client was unbelievably rewarding. I cannot wait for the next opportunity to be part of CU's pro bono practice.

 

Our pro bono work over 17 years has secured $8.5 million in compensation for survivors of domestic violence and sexual assault. Here are just a few examples of our work this year in statutory compensation schemes around Australia. All of the names have been changed. The different amounts recovered reflect the patchwork way that different governments address criminal compensation.

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Charlotte endured years of coercive control and intimate partner violence. She told us that:

He said that if I told anyone, they wouldn't believe me. The police came around several times because of our neighbours reporting my screaming, but I never said anything because I was afraid of what he would do after they left. I also didn't know who to tell, I didn't feel I could tell mum because I didn't want to stress her out. A few times, I did want to tell somebody. I tried to leave the house. But we only had one key to the house that locked from the outside. He would often take the key and lock me in all day.

We helped Charlotte to receive $132,800.

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Karen left a violent and abusive relationship, only to be charged by police for stalking her ex-partner when she was trying to retrieve her personal belongings. We helped Karen to prepare a statement to police about the violence she experienced and, with the help of a criminal lawyer, got the stalking charge against Karen withdrawn. Karen received $1,500 in recognition of her trauma as well as $5,000 for clothing, household items and a security system to ensure that her new home was safe.

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Without legal help, 13 year old Sonia's original application for compensation for domestic violence was rejected. We helped Sonia to appeal that decision. We were thrilled that not only did Sonia receive $5,000 in recognition of her trauma, but she was also awarded $4,120 to purchase a therapy dog, to help reduce her anxiety and distress and provide support for any ongoing trauma. On hearing the news, Sonia's mum told us:

Sonia was blown away…this payment in the form of a puppy will be a means to make her feel safe. It is a physical representation that she was believed and that she can love the puppy and feel loved and comforted back.

If only all our matters ended with a puppy!

Some of our discrimination matters this year are reminders of just how far we have to go to ensure that all of us can participate equally in society, even in some of the most basic activities. Here are only a few examples.

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We acted for three women in regional Queensland, who were unable to become full members of their town's lawn bowls club. The club's constitution, in 2020, only permitted women to become associate members. They had no voting rights, and were limited as to which times and days they could play bowls.

Our clients brought complaints of sex discrimination to the Australian Human Rights Commission. At first, the Club and their local lawyer tried to justify the archaic provision, but with our help, the matter was resolved at conciliation and the Club's constitution amended. Our clients now have had their full-membership applications approved.

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We helped a client to overcome a systemic disability discrimination issue, at mediation in the Federal Circuit Court. He is a three-time former Paralympian, now in his 70s. Our client has paraplegia and uses a wheelchair. Our client travelled to regional NSW to attend his 55th anniversary school reunion. On the morning of the reunion, after breakfast in a café, he urgently needed to use a toilet. He went to accessible public toilets at two nearby locations, only to find that they were both locked. He soiled himself.

It turns out that the local Council had a policy that all public accessible toilets were locked, and could only be accessed with the purchase of a key from Council chambers. The general public toilets at the same locations were not locked. The Council's explanation was that, if the accessible toilets were open, they might get vandalised or used for drug-taking. (So, only the accessible toilets were inaccessible…?).

Anyway, we settled the matter with a policy change, an apology and the payment of $7,000 in damages. All of the accessible public toilets are now unlocked during daylight hours, just like the Council's general public toilets.

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Our client, who was born in Africa, was thrown out from a dance evening at a club, and roughed up on his way out. The reason given at the time was that he had not paid his entrance fee, although the organisers later acknowledged that our client had indeed paid. Tellingly, the opening words of the club's incident report read: "Male of African appearance refused to pay".

Our client gave evidence that: "I have encountered subtle forms of racism in my life, but what happened to me at the Club was by far the worst and most violent incident I have ever experienced. I felt helpless afterwards, as if my rights as a person had been taken way. I cannot escape the belief that I was seen as suspicious because I am black, and that was the reason I was accused of not paying to get in, and that was the reason that my honest statements that I had already paid were disregarded completely".

We settled his complaint of race discrimination through mediation, for an apology and the payment of $12,500.