QTU legal assistance and indemnity

Dear colleague,

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The risk of legal action is something school leaders face on a daily basis. That’s why the Queensland Teachers’ Union gives such a high priority to giving its school leader members the best possible legal protection and assistance.

The Queensland Teachers’ Union established a legal assistance scheme many years ago in order to protect the legal and industrial rights of members.

Any legal action, whether it be prosecution or defence, is expensive. Without legal aid, you could face a severe financial setback from which you might never fully recover.

What legal assistance is available to QTU members?

The Union offers three forms of legal assistance.

Free legal assistance

This may be granted for civil and criminal matters arising directly from your employment. Members receive free legal assistance on a work-related matter. The member pays nothing. This full legal assistance includes counsel’s fees and other disbursements.

A free local solicitor can be accessed, where necessary, for members outside South East Queensland (eg police interview, court attendance required).

Members will receive free QTU assistance to prepare applications for indemnity and legal assistance, plus referral to free legal assistance if legal work is required prior to indemnity being granted.

Free legal assistance may be granted for:

  • assault allegations
  • departmental investigations of physical abuse allegations
  • abusive parents
  • defamatory comments made by parents
  • student accident
  • parent complaints
  • anti-discrimination complaints
  • RTI requests lodged by parents
  • advice with regards to subpoenas
  • common law damages where the employer has been negligent
  • family law cases where the member is involved in their role as a teacher
  • departmental disciplinary matters
  • Queensland College of Teacher registration matters
  • workers’ compensation(WorkCover) claims
  • superannuation disablement benefit disputes
  • school related matters
  • workplace health and safety investigations.

This list is not exhaustive. The Union will consider any request for free legal assistance for any work-related matter, if legal action is the most appropriate way to address the issue.

Subsidised legal assistance

This form of legal assistance may be granted to members in relation to matters not arising directly from their employment but which could have a bearing on their employment, that is, a matter which could lead to the dismissal of a teacher (e.g. a criminal charge, assaults, public nuisance). It is available at 90 per cent of the usual fee, with the Union contributing 30 per cent of cost and outlays and the member paying the remainder.

If the matter goes to QCAT or is investigated by the department, the QTU will pay full legal costs with regards to these processes.

Extended legal assistance

This is provided for matters which do not fall within the two categories above (although it will not generally be provided where one member is in dispute with another). Members are able to access an unlimited number (different legal matters) of free half hour consultations (at lawyers’ discretion, but usually an untimed consultation) on any matter, and further work is undertaken at member expense but at a discounted rate.

Other legal services for members

  • a designated legal officer for school leaders
  • free face to face, education specific legal seminars.

The QTU offers an annual program of free face-to-face, education-specific legal seminars in metropolitan and regional centres around the state, including specific programs for education leaders, as well as Journal articles.

Teachers and the Law publication
The Union publishes Teachers and the Law, an excellent source of preliminary information, including:
    • duty of care/ supervision of students
    • discipline in schools
    • family law matters
    • discrimination
    • police visits in schools
    • judicial review
    • disclosure of information about students
    • discrimination 
    • judicial review
    • complaints against teachers
    • defamation
    • abuse / threats against teachers
    • workers’ compensation (including for assaults on teachers)
    • disciplinary action against teachers
    • code of conduct
    • student protection
    • Queensland Civil and Administrative Tribunal
    • teacher registration.
QTU legal brochures
The QTU provides legal brochures on a variety of education specific topics. These include:
  • abuse of teachers by parents
  • defamatory and/or objectionable material on the internet
  • defamation of teachers by parents and others
  • intellectual property created by teachers
  • making a WorkCover claim
  • Teachers’ liability in negligence to students – Queensland Government schools
  • Teachers and the law – police matters
  • Teachers and the law – accidents
  • Teachers’ rights in relation to departmental records about them.
Conciliation

QTU Officers and Organisers facilitate conciliation through EQ’s employee management procedures, including member v member.

Member versus Member

There is some misinformation about what the Union does when two members are in legal dispute with each other.

QTU policy is not to provide legal assistance in these cases. Rather than pay two sets of lawyers to fight each other, we try to conciliate these disputes. There is no truth in stories that the Union favours teachers over principals in providing legal assistance in these cases.

Indemnity and/or legal assistance

A few school leader QTU members have been asking questions in relation to indemnity insurance.

Do I need professional indemnity insurance?

Every member needs to make their own decision about whether such insurance is needed.

Members need to be aware that the state of Queensland does provide Indemnity and Legal assistance to state employees. In the “Guideline for the grant of Indemnities and legal assistance to state employees” the following principle is outlined:

The state will provide legal assistance and/or an Indemnity to a state employee in relation to a civil proceeding if –
a. the civil proceeding arises from or relates to the state employee’s duties or functions; and
b. the decision maker is satisfied that the state employee has diligently and conscientiously endeavoured to carry out such duties or functions.

If indemnity is not granted and the matter is work-related, the QTU will provide free legal assistance. It should be noted that the QTU and its lawyers are not aware of any case in recent times where indemnity has not been granted by the department when a teacher has been undertaking official departmental duties.

Private indemnity insurance

Private indemnity insurance can take a number of forms. It may be one or some combination of :

  • insurance in respect of legal costs only
  • insurance to cover an order for the payment of monies resulting from court orders. These could be damages, whether compensatory or punitive, or costs or fines or penalties.

If you are considering private indemnity insurance, below are some general comments about limitations of private insurance compared to the QTU’s legal assistance.

  • Multiple policies may be required. 
    • While many insurers offer “employment claims” policies, not all policies are the same and many do not cover the common types of legal costs and claims that the Union currently funds. For example, many insurers will not cover legal costs of any type for WorkCover claims. Only very specialised insurers offer insurance for claims for personal injuries (and they are really “litigation funds”, not insurers). Other insurers will not cover any form of penalty or fine, such as a workplace, health and safety fine.
  • Policies can be re-written from year to year. There is no way to compel the insurer to continue to offer the same benefits or cover.
  • Private insurance generally provides cover to respond to or defend proceedings commenced by someone else. 
    • It would be difficult to obtain insurance that would cover commencement of a claim by the person who holds the insurance (eg defamation or damages or discrimination claims).
  • Private insurers retain the right to take over a legal process in some circumstances. 
    • The insurer can be entitled to make all decisions about how the claim is to be run or what offer of settlement is to be made or accepted, irrespective of the wishes of the holder of the policy.
Legal costs insurance

The insurance of liability for legal costs is common, in respect of all types of potential legal or legal proceedings or preliminary matters such as investigations. The Queensland Teachers’ Union in effect already provides this cover under its full legal assistance program. That is, where a matter arises out of the employment relationship, members have access to free legal assistance with the Union’s lawyers.

The Union’s legal assistance is superior to an employment claims policy because it also provides subsidised legal assistance and extended legal assistance for matters which do not arise from employment.

How do I apply for legal assistance

The Union requires a written request for legal assistance (email, fax, letter). However, urgent requests will be dealt with initially by telephone.

If you are unsure of whether or not you need legal assistance, contact the QTU. Many questions and issues can be addressed initially by the appropriate Union Officer.

  Conclusion

The Queensland Teachers’ Union prides itself on providing one of the best legal assistance schemes of any union in Australia.

The QTU retains lawyers*  who are experts in education and employment law and have been working with the QTU for over 40 years. Best of all, the benefits are included in your annual QTU membership.

* The expertise of TressCox lawyers

Our lawyers have been involved in every piece of current legislation and every change to legislation in education, the public sector, workers compensation, teacher registration, QCAT and child protection through submissions to Parliament and appearance at Parliamentary inquiries.

  • Andrew Knott, Special Counsel, acting for teachers for over 40 years
  • Rachel Drew, Partner, acting for teachers since 2000.

Our lawyers represent all teacher union members in both the public and private sector in Queensland.

TressCox also guarantee partner/special counsel/experienced solicitor involvement in every matter.


 

To find out more about QTU legal assistance, call the QTU on 3512 9000 or email qtu@qtu.asn.au

Yours sincerely,
Graham Moloney
May 2013