General

20 Aug

Posted at 17:27h in General

On 4 August 2021, the High Court unanimously allowed an appeal from a judgment of the Full Court of the Federal Court of Australia. The appeal concerned the nature of casual employment. THE FACTS Mr Rossato was employed as a production worker by the labour-hire company WorkPac under a series of six contracts, or "assignments", to perform work for one of WorkPac's clients. At all relevant times, WorkPac treated Mr Rossato as a casual employee, such that Mr Rossato was not paid the leave and public holiday entitlements owed by employers to non-casual employees pursuant to the Fair Work Act 2009 (Cth) ("the Act") and the enterprise agreement which governed his employment. THE LITIGATION On 16 August 2018, a judgment was delivered in the Federal Court. Inthat decision, it was found that Mr Skene, who had been employed by WorkPac in circumstancessimilar to those of Mr Rossato, was not a casual employee. In reliance on that decision, Mr Rossatoclaimed that he was likewise not a casual employee, and was therefore entitled to be paid for untaken annual leave, public holidays, and periods of personal leave and compassionate leave taken during his employment. The Full Federal Court also concluded that Mr Rossato was not a...

09 Jul

Posted at 16:47h in General

On 1 July 2021, the value of goods covered by the definition of ‘consumer’ under the Australian Consumer Law increased from $40,000 to $100,000. This means that the consumer guarantees will apply to more transactions, including when businesses sell to other business. The guarantees also apply to those who only have an online presence and no retail outlets in Australia. The critical issue is that sales are to Australian consumers. Valve, one of the world’s largest online video game retailers,  incurred a $3 million penalty for non-compliance and was unsuccessful in its special leave application to the High Court in April 2018. The following is an update of my earlier blog and is a useful summary. What is covered? Businesses must guarantee products and services they sell, hire or lease that are: •          under $100,000 •          over $100,000 if they are normally bought for personal or household use •          business vehicles and trailers, provided they are used mainly to transport goods. There are some exceptions. For example, products purchased to be resold, or to be transformed into a product that is sold, are not covered. What are consumer guarantees? Businesses must provide these automatic guarantees regardless of any other warranties. If a product or service fails to meet a consumer...

25 Jun

Posted at 17:15h in General

The media has recently highlighted the proposed payment of a $180,000 superannuation benefit in the highly publicised relationship of a Victorian Magistrate and his court clerk, many years his junior. It drives home the importance of taking superannuation into consideration when making your will. Further, consideration of your options if you are not satisfied with a superannuation fund’s decision. Sadly, almost a year ago, the young court clerk died after being struck by a car. The superannuation fund is reported as indicating that it will pay the magistrate the super benefits on the basis that he was her de facto partner of some seven months. Apparently, there was a binding death nomination in favour of the deceased's mother. Most funds make provision for binding or non-binding death nominations (BDNs). In this instance, the superannuation fund has chosen to bypass that nomination. We understand that the fund's decision is being challenged. This is not a unique situation. Amongst the matters we are looking at in this area is one where 16 year old and 18 year old daughters have had minimal amounts been provided to them by the superannuation funds. Their father's superannuation funds have large superannuation benefits. The bulk of the benefits...

10 May

Posted at 15:49h in General

We have just acted in a tragic matter which raised two issues.  The first as to the need to make a Will regardless of how old you are.  The second as to the need to ensure that the Will has been properly prepared.  As to the first, our client's daughter was an athlete who had received many awards locally and internationally.  It was a devastating blow to the family when at the age of 33, she died in her sleep.  No one could have predicted that event.  Unfortunately, probably due to youthful exuberance and a feeling of invincibility, no proper Will had been prepared.  One therefore led to the inevitable conclusion, that despite one's youth, it is essential to have a Will prepared along with the associated documents such as an Enduring Power of Attorney and an Advance Care Directive.  The second issue which arose was in relation to the informal Will.  That had a date on it. It contained two paragraphs. In the first, in very simple terms it indicated that 70% of the Estate was to go to the will maker's mother and 30% to her father.  In the second paragraph, it indicated that should the mother predecease the will...

04 May

Posted at 12:10h in General

“Before borrowing or lending money to or from a friend, decide which you need most – the money or the friend” Disclaimer/use of this information This information is general in nature and does not constitute legal advice.  You must not rely on it.  Legal advice based on your specific circumstances should be sought by you. Understandably, many people wish to assist family members or friends with loans from time to time. (“friendship loan”) A friendship loan carries with it significant risk. Our apologies for what may appear to be a negative tone in this information piece. The issues and concerns raised are often seen by lawyers in loan arrangements between family and friends. Too many of these arrangements turn bad. Too many relationships are significantly impacted on or end as a result of someone trying to help a close friend or family member with a loan. They are the sort of arrangements that must be very carefully considered by all involved and independent legal, taxation, accounting, financial planning and Centrelink advice obtained well before agreeing to proceed. Some considerations may include: - Often, the need for the loan is due to the fact that a bank or independent lender will not make the loan. The friend in...

02 Mar

Posted at 14:00h in General

Disclaimer: The contents of this page are for general information only. They are not intended as professional advice and should not be relied upon for any purpose. Any specific situation should be analysed and assessed by a suitably skilled and experienced solicitor, barrister or other suitably qualified professional. Many people or their family, friends and associates trade through a company or are otherwise involved in the company. This may include as a director. Significant changes have been introduced for company directors when resigning. From 18 February 2021, new rules exist regarding the ‘effective date' of: - Resignations that are not notified to ASIC on time; and - Resignations of last remaining directors. These changes are part of ASIC’s continued push to eliminate illegal phoenixing activities. The government has, from 18 February 2021, commenced their new regime in relation to resigning directors The provisions are part of the aim to prevent companies from liquidating, winding up or being abandoned in order to avoid paying their debts. Directors must consider these new laws when planning to resign their position. Changes to the ‘effective date’ of a director’s resignation if notified late If ASIC is notified of a director's resignation more than 28 days after the resignation date, ASIC will now impose an ‘effective...

11 Nov

Posted at 11:15h in General

It is quite common for issues to arise from the purchase of a Used Car. The Australian Financial Security Authority (AFSA) has recently expressed concerns with such sales.  We thought it useful to provide the following tips. They also let you know where you can find more information which is available from the various government organisations who oversee this area. The tips are for dealers as well as consumers. A PPSR SEARCH on the Personal Property Securities Register There is a fee of $2 for a PPSR search. It is especially important when privately purchasing cars, motorbikes and more. The PPSR can tell you if the vehicle you want to buy is safe from possible repossession, or if it has been reported written-off or stolen. AFSA's newest video, available now on YouTube, highlights the key information a PPSR search can provide. We encourage you to access this short video if you are considering purchasing a second hand vehicle privately. To complete a search, you’ll need the vehicle’s serial number, such as a VIN or chassis number, and a credit or debit card for payment. Just do it and you will save possible future anguish. Consumer and Business Services (CBS) The CBS is the South Australian government...

04 Nov

Posted at 11:30h in General

The ACCC has instituted proceedings against Fuji alleging that nine types of Fuji’s standard form small business contracts contain numerous unfair contract terms, including automatic renewal terms, excessive exit fees and unilateral price increases. ACCC Deputy Chair Mick Keogh, explained why the ACCC took action. “We have received a number of complaints from small businesses alleging that some of the terms in Fuji’s contracts have caused them significant financial harm,” Mr Keogh said. “Some of the unilateral variation terms allow Fuji to modify contracts by creating new rights and obligations, including increasing prices, without notifying its customers and without giving them any corresponding right to negotiate or reject.” “The ACCC will argue that the unfair terms in these contracts cause a significant imbalance in the rights and obligations of Fuji and the small businesses they contract with,” Mr Keogh said. “This court action by the ACCC should prompt all other traders in the printing support industry to review their standard form contracts and make any necessary changes to remove unfair contract terms." The ACCC is seeking declarations that the terms in the existing contracts between Fuji and its small business customers are unfair and therefore void, and an injunction to prevent Fuji from relying on these...

28 Oct

Posted at 11:15h in General

The Parliamentary Joint Committee’s Fairness in Franchising report revealed a range of problems in the franchising sector. Franchising regulation needs reform to restore confidence in the sector. The Australian Government has now prepared its response to the Parliamentary Joint Committee’s 2019 report. The Australian Government will: double the penalties that apply for breaches of the Franchising Code.strengthen dispute resolution options by introducing conciliation and voluntary binding arbitration. Furthermore, the functions of the Franchising Mediation Adviser will be incorporated into ASBFEO (Australian Small Business and Family Enterprise Ombudsman) to improve the efficiency of dispute resolution assistance and make it clearer that ASBFEO can assist with franchise disputes.improve disclosure relating to supply arrangements, marketing funds.strengthen the ability of franchisees to exit the agreement before the end of the term and increase disclosure of end-of-term arrangements for goodwill. The Government will balance the rights of franchisors and franchisees to facilitate and negotiate an early exit from a franchise agreement.to strengthen franchisees’ rights when a demand for significant capital expenditure is made.introduce a public register of franchisors to increase transparency in the sector.develop a franchising website to make it easier for both franchisors and franchisees to access information and support.prohibit franchisors unilaterally imposing significant capital expenditure on franchisees during...

07 Sep

Posted at 15:18h in General

Many articles talk of the complex nature of relationships that lead to blended families. Studies suggests that 60 percent of marriages involving children from a previous marriage end in separation or divorce. This is double that of the overall percentage of first marriages[i]. Blended families have many positive and loving attributes. They can also create complicated estates. To minimise future disputes, it is important seek experienced and professional advice regarding binding financial (“pre-nuptial”) agreements and estate planning. Pre-nuptial agreements may protect assets if the relationship breaks down. A Will is the simplest way to lay out how you want your assets to be distributed upon you passing away. Furthermore, a trust fund can (in your will or during your life) also be set up to pass assets to your children or your stepchildren upon your death[ii]. Whilst this all can sound complicated; it need not be. We have a dedicated, caring, experienced team here at Belperio Clark who are committed to help you navigate positively through these challenges. Please feel free to contact us on 8212 1322 to speak to one of our team. [i] Meleen, Michele, "Blended Family Statistics", Love To Know: Family (Webpage, 2020) <https://family.lovetoknow.com/co-parenting/blended-family-statistics> [ii] Omier, Emily, "Blended Family Estates:...

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