The PRWIRE Press Releases https:// 2013-05-08T23:15:00Z Off the plan sales and amendments 2013-05-08T23:15:00Z off-the-plan-sales-and-amendments This decision considers a critical issue in off the plan developments – what amendments can be made to a proposed plan of subdivision between the time that a contract is entered into and registration of the plan of subdivision, without giving a purchaser a right to terminate their contract? This issue may arise in the context of all off the plan developments; land subdivisions, apartment and commercial developments. Section 9AC of the Sale of Land Act 1962 provides that: if changes are made to a proposed plan of subdivision after a contract is entered into and before it is registered, the vendor must notify purchasers within 14 days of making the amendment; anda purchaser may rescind its contract if the amendment “will materially affect the lot to which the contract relates”.In Lockwood, the purchaser entered into 8 separate contracts – 4 contracts for apartments and 4 contracts for car park lots. At the time the contracts were entered into, the proposed development comprised 86 apartments, 10 car park lots and common property over 8 levels in Windsor. Ultimately, the proposed plan of subdivision was amended (based on Council requirements) so that the car parks were converted to common property. Other amendments were also made to the plan of subdivision which increased the common property and varied the lot liabilities and entitlements of the apartments in the development. As a matter of timing, the vendor did not notify the purchaser of the changes to the plan of subdivision until after the plan of subdivision was registered. The vendor conceded that the car park contracts were incapable of completion (given the car parks no longer existed as separate lots) but offered the purchaser 99 years leases in their place. The purchaser rejected that offer. The purchaser asked the Court to determine whether the deletion of the car park lots and other changes to the plan of subdivision permitted the purchaser to also rescind the apartment contracts under section 9AC of the Sale of Land Act. The Court considered the following key issues: did the deletion of the car park lots from the plan of subdivision “materially affect the lot” in the context of the apartment contracts, even though the apartment lots themselves were not varied? did changes to common property, including to each apartment’s lot liability and entitlement, “materially affect the lot”? were each of the 8 contracts to be considered separately or as a single transaction? Does amendment to the plan need to be detrimental to “materially affect the lot”? It is often suggested that in order for an amendment to “materially affect the lot”, the amendment must in some way be detrimental or prejudicial to the rights of a purchaser. In Lockwood, the Court rejected this position. Referring to the Court’s recent decision in Besser v Alma Homes Pty Ltd [2012] VSC 460 (Besser), the Court noted that in considering the materiality of an amendment to a plan, one must consider “the totality of the scheme and arrangement by which the property is to be subdivided”. Critically, the Court determined that the amendments need not be detrimental in order for the purchaser to terminate the contract, as section 9AC makes no reference to the material effect being deleterious or adverse. A purchaser is not required to prove any detriment. Notwithstanding, the Court did note that it may be easier to establish materiality if the amendment does have a detrimental effect. Taking the Court’s reasoning further, even an amendment which on its face may be considered to be a benefit to a purchaser, may give the purchaser a right to rescind their contract if the effect is nevertheless material. The Court noted that by way of evidence a purchaser need only produce “the contracts containing the initial plan and the amended plan”. The Court also noted that the vendor had breached its obligation under section 9AC to advise the purchaser of an amendment to the plan which was made after the contract was entered into and before registration of the plan, within the 14 day period required by the section. Importantly, the Sale of Land Act does not confer an express right on a purchaser to terminate a contract based solely on such a breach. Can changes to common property, including lot liability and entitlement, “materially affect the lot”? The Court decided that a change to a lot entitlement could materially affect a lot – even though in this case, the lot entitlement of the purchaser increased. This was consistent with the Court’s earlier decision in the Besser case. Were the 8 contracts to be considered separately, or as a single transaction? It is not uncommon for a vendor and purchaser to enter into separate contracts for lots in the same development. There may be various reasons for doing so (including funding or lending arrangements such as superannuation fund borrowing, desire to on-sell lots separately, etc). Section 9AC unequivocally gives to the purchaser a right to rescind the contract of sale for the lot “to which the contract relates”. In Lockwood, the 8 separate contracts were not expressed to be collateral, and the Court did not imply such a term into the contracts. On a literal reading, each contract was required to be considered in isolation. Despite this, the Court concluded that while each lot was the subject of a separate contract, it formed the part of the whole development proposal in which the purchaser invested prior to its completion – the separate contracts were to be considered effectively as a single transaction for the purposes of section 9AC of the Sale of Land Act. The Court considered the circumstances objectively and considered that it would be “entirely artificial to look only at each individual contract, on a standalone basis, when considering the impact of an amendment to the plan on a particular lot and contract.” It is not clear whether that would also be the position where related purchasers entered into separate contracts. Interestingly, the Court concluded that even if the 8 contracts were to be considered in isolation, the amendment to the plan of subdivision would have materially affected each lot because of the increase in common property which resulted in a greater proportion of common property for which each lot owner would be responsible. The Court’s decision Ultimately, the Court held in favour of the purchaser on the basis that the amendment to the plan of subdivision denied the purchaser the benefit of four contracts for the purchase of car park lots which the Court considered formed the part of a package of rights acquired by the purchaser in the development. The purchaser was entitled to terminate all 8 contracts and receive a refund of the deposit paid. Issues to consider for developers when considering whether an amendment to a plan of subdivision materially affects a lot, consideration must be given to all contracts which the purchaser has entered into as a single transaction – not each contract separately. It is also likely that lenders will consider separate contracts to the same purchaser as a risk factor in determining whether sales qualify as pre-sales. when considering an amendment to a plan of subdivision, regard must be given to the effect of the amendment on the project as a whole. Is the amendment likely to change the context in which the purchaser has entered into contract? consider whether amendments to a plan of subdivision (including changes to common property and lot entitlements and liability) “materially affect a lot” not only in the context of a detrimental effect – any material affect may give rise to a right to rescind. For further information please contact Harwood Andrews Lawyers:Victor Di Felice Principal 03 9611 0162vdifelice@harwoodandrews.com.au Sarah Rizk Principal 03 9611 0111srizk@harwoodandrews.com.au Change in circumstances for the review of a current child support assessment 2011-12-09T00:28:52Z change-in-circumstances-for-the-review-of-a-current-child-support-assessment Child SupportChild support is the payment from one parent to the other for the financial support of their children where the parents have separated. Arrangements for the payment of child support, including the amount of child support that one parent is to pay to the other and any other expense toward which they will contribute, can be made by way of the following:1. a private agreement between the parties known as a Child Support Agreement which is entered into by both parents, or 2. by an assessment by the Child Support Agency under the Child Support (Assessment) Act 1989. The Child Support (Assessment) Act 1989 provides a formula for the Child Support Agency to calculate the amount of child support to be paid by one parent to the other based on the combined income of both parents, the “standard of living” such a combined income theoretically supports, and the amount of time each parent spends with their children. The Child Support Agency is a branch of the Australian Tax Office and can access the parties’ respective tax files for information regarding their incomes. Parties can elect whether child support payments under a Child Support Assessment are to be collected by the Child Support Agency from the liable parent or their employer to be paid to the other parent, or whether they are paid privately from the liable parent directly to the other parent.A child support assessment creates a periodic payment obligation for the liable parent to pay to the other parent. That is a set amount of money is to be paid by the liable parent to the other parent each week, fortnight or month. Child Support Agreements are usually registered with the Child Support Agency and can include both periodic payments and/or non-periodic payments. Non periodic payments include the payment of expenses for a child or children to third party providers such as school fees, health insurance and other educational costs. The parties to a Child Support Agreement can registered that agreement with the Child Support Agency and may also elect that the Child Support Agency collect the child support amount from the liable parent and send it to the other parent, or that the payments are made directly. Change of AssessmentA Child Support Agreement is binding for the period set out in the terms of the agreement and a child support assessment by the Child Support Agency is also for a set period of time.This article considers what constitutes a relevant change of circumstances to permit the amount of child support being paid to be varied where:1. The parties have a child support assessment which provides for the payment of child support based on the respective incomes of the parties at the time; and 2. One parent is now earning substantially more than the other, or substantially more than they were at the time of that the child support agreement or assessment was entered into; and 3. The care arrangements of the children change. Change of assessment in special circumstances – administrative assessment processWhere a party believes that their current child support assessment by the Child Support Agency does not reflect the parents’ special circumstances, thenthat party may apply for a change of assessment. Where a party’s income increases, there is no obligation to notify the Child Support Agency or the other party, unless that party voluntarily lodges an estimate that reflects the change in income. In this situation the aggrieved (other) party must apply for a departure from the administrative assessment under Part 6A of the Child Support (Assessment) Act 1989 (Act). However, in due course the Child Support Agency will become aware of any increase in a party’s taxable income when tax returns are lodged at the end of the financial year, and following such lodgement the Child Support Agency will automatically make a determination to vary or retain the administrative assessment amount. The Act states that where an administrative assessment is in force in relation to a child, a liable parent may, due to ‘special circumstances’, seek to depart from the administrative assessment by making a written application to the Child Support Registrar. ‘Special Circumstances’The phrase ‘special circumstances’ is not defined. The Family Court has held that ‘it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary’ (Gyselman and Gysleman (1992) FLC). The Child Support Agency (CSA) will be satisfied that there are special circumstances if a parent’s current income is not adequately reflected in the child support assessment (whether it is more or less than the income used to calculate the original assessment). Whether a change in income will be sufficient to justify a departure from the assessment will depend upon the facts of each individual case. In Onans and Onans (1993) Justice Kay found that it was appropriate to depart from an administrative assessment based on the income of the parties two years prior to the time of the application, by which time the party’s income had changed, especially as there was no other source of finance available to provide for child support. Justice Kay stated that “the obligation to support children exists only if there is an ability to support”. Percentage change in incomeIf the change in income amount is less than that required for a variation based on an income estimate (an estimate will be available where a parent’s current income is 15 per cent lower than the income used in the assessment), such a change may nonetheless amount to grounds for a departure from the administrative assessment. This will depend on the circumstances of each case, however it is likely that minor changes will amount to a special circumstance in cases involving very low incomes, but will not be so important in families with high incomes. In Savery and Savery (1990) the wife sought a departure order from the court under section 117 of the Act on the basis that her husband’s income had substantially increased from that on which the original assessment was based. The Court held that the original assessment produced an ‘unjust and inequitable determination’ under s 117(2)(i) of the Act, as the original administrative assessment made two years prior produced a child support liability of $26 per week, whilst an assessment based on the current estimated incomes of the husband and wife would produce a liability of $91 per week. Role of Child Support Agency The CSA will usually wait until both parties’ tax returns have been lodged and make a determination to vary or keep the administrative assessment amount.If the process for an administrative assessment is initiated by one of the parties this will take from 6 – 12 weeks for the CSA to make a final determination. Parties can initiate the administrative assessment process by completing a Change in Assessment in Special Circumstances Application Form and lodging it with the CSA.When there is a change in the level of care of the childWhen the care arrangements of a child vary (for example, the current assessment may assume a child spends two nights per week with their father, however by agreement between the parents this has now increased to four nights per week), there is an obligation on the parents to inform the Child Support Agency of this change immediately. Based on the details of the change in care provided by the parties, the CSA will then make a determination to vary or retain the administrative assessment amount. When a Child Support Agreement or court departure order sets the annual rate of child support payable based on an agreed level of care, changes in the level of care of a child cannot be reflected in the assessment, unless there is a clause that terminates or varies the agreement when there is a specified change in the level of care.For example, if a child who was in a parent’s sole care goes into the shared care of each parent. If the agreement did not make provision for this possibility, then the previously set annual rate would remain payable. This could be difficult for the paying parent who is now incurring the additional costs of also accommodating the child. Accordingly it is important to draft such agreements carefully to allow for changes to the level of care of the child.Harwood Andrews Lawyers haveFamily LawSpecialists thatcan provide you with advice in relation to child support:1800 552 018familylaw@harwoodandrews.com.au It is time for a rethink on occupational health and safety laws? 2011-12-08T23:36:11Z it-is-time-for-a-rethink-on-occupational-health-and-safety-laws No reasonable person disputes the need to have laws which protect workers’ occupational health and safety. That is a given. As far back as July 2008 the Council of Australian Governments committed to harmonising State and Territory occupational health and safety laws. This means that all States will have uniform workplace safety laws. It was originally proposed that the uniform workplace safety laws would be introduced by 1 January 2012. However the West Australian and Victorian Liberal Governments have stepped back from a commitment to introduce the new laws by January 2012. The NSW Government is also rumoured to have stepped back from introducing the new laws by January 2012. There is no doubt that the new workplace safety laws will have a huge impact on business. For example, companies will now be liable for fines of up to $3million for a single breach of a number of the offences created by the new workplace safety laws. Currently the maximum fine that a corporation will face for a single breach of the Victorian Occupational Health & Safety Act is just over $1million. The fines currently imposed for breaches of the Occupational Health & Safety Act can be massive. The Occupational Health & Safety Act does not distinguish between public corporations and private corporations. In the Longford gas explosion, Esso was fined in excess of $1million. For a corporation of that size a $1million fine, given the nature of the breach of the Occupational Health & Safety Act, was obviously appropriate. However private corporations face penalties of the same order. Responsible business owners, including our manufacturers, already bear the high cost of State and Federal regulatory compliance. Although the community is yet to properly understand its impact, many manufacturers are already apprehensive about the increased cost of production which they may bear as a result of the imposition of the Carbon Tax, as well as the current difficult trading conditions which are worsened by the high Australian dollar. Responsible manufacturers will have already borne the significant cost in creating a workplace safety culture. Measures such as conducting risk assessments, appointing a health and safety representative, appointing a manager with specific occupational health and safety responsibilities, devising comprehensive policies and procedures to ensure manufacturing processes are safe, engaging occupational health and safety consultants, re-engineering machinery to ensure that it is adequately guarded and adequately supervising employees to ensure that occupational health and safety procedures are complied with are just some measures that manufacturers ought to implement to ensure a safe workplace. However such measures come at a considerable cost. Even when such measures are in place accidents can happen. Sometimes such accidents are caused by employees breaching safe operating procedures. Even in those circumstances employers remain at risk of huge fines. Victorian corporations may be rightly concerned if the maximum penalty which can be imposed is to be increased to $3million. At the risk of such a fine, manufacturers, when deciding to continue operating in Victoria or going offshore, may just consider the risk of operating in Victoria is too great to continue. Our manufacturing sector is already under considerable pressure. The impact of manufacturers moving offshore to less regulated countries will leave workers in those workplaces without work, causing damage to them and their families. The other costs which manufacturers will need to bear as a result of a workplace accident are a possible Sentencing Act claim, where the worker and the worker’s relatives may seek compensation for pain and suffering, in addition to any WorkCover claim made by the employee, as well as a three year increase in WorkCover premiums. Any award of compensation made under the Sentencing Act is not covered by insurance. The personal consequences to workers involved in serious workplace accidents are significant and often tragic. Many employers are also personally affected by serious injuries to their employees. There is no doubt that creating a positive culture of workplace health and safety is in the interests of both employers and employees. However it is timely to ask whether the imposition of ever increasing financial penalties is the answer, particularly as such penalties go into consolidated revenue, and are not used to improve the occupational health and safety at the individual workplace. There is little doubt that if a significant financial penalty is to be imposed, employers would rather be compelled to spend that money improving occupational health and safety at their workplace than giving the money to the Government. For further information please contact Harwood Andrews LawyersOH&S and workplace relations lawyers:Jim RutherfordPrincipal & Accredited Specilist in Workplace Relations Law and Criminal Law1800 552 018jrutherford@harwoodandrews.com.au New Australian Consumer Laws - Issue 3: Consumer Warranties 2011-12-08T23:11:36Z new-australian-consumer-laws-issue-3-consumer-warranties The distinction between warranties and guarantees is commonly overlooked. From 1 January 2012, it will be more important than ever for manufacturers, retailers and other suppliers of goods and services to understand the distinction. With the introduction of stringent laws relating to warranties against defects, failure to make this distinction could have significant adverse consequences on businesses.Continue reading... Harwood Andrews Lawyers Regional Expansion - Ballarat 2011-12-08T22:54:10Z harwood-andrews-lawyers-regional-expansion-ballarat As part of Harwood Andrews Lawyers ongoing commitment to providing specialist legal services to regional communities we are pleased to announce the recent opening of our office in Ballarat. The new office, at 702A Sturt Street Ballarat, offers the firm’s existing Ballarat clients and the broader Ballarat business community commercially focussed legal expertise which currently can only be obtained by clients having to travel to Geelong or Melbourne. Our new office means that the local Ballarat community will have local access to the entire Harwood Andrews Lawyers group significant expertise and resources.The firm provides strategic legal and commercial advice nationally to a diverse range of leading Australian corporations, high-net-worth individuals and large family businesses as well as accountants and financial planners. Our experience in these areas will support our expansion into Ballarat.The Ballarat office offers a full range of legal services including commercial and corporate law; asset protection and business succession; tax, superannuation and trusts; estate and succession planning; intellectual property and franchising; workplace relations and employment; building and construction; property, land development and leasing; wills and probate; family law; planning and environment; local government and public sector; commercial litigation and dispute resolution. The Harwood Andrews Lawyers Ballarat team, led by Principal Joanna Monahan, are looking forward to welcoming new and existing clients and to building strong and long lasting relationships with the Ballarat community.For more information on our Ballarat office please visit www.harwoodandrewsballarat.com.au or phone 4308 8444. Suspect behaviour is not enough to justify termination 2011-12-08T01:45:28Z suspect-behaviour-is-not-enough-to-justify-termination A recent Fair Work Australia (FWA) decision (Bergin & Bennett v Workforce Solutions (Qld) Pty Ltd t/as Workforce Solutions) has awarded 2 employees over $50,000 compensation for being unfairly dismissed. Mr Bennett and Mr Bergin were both terminated after their employer disc overed they had set up a company and a website which their employer believed was in direct competition with the employer’s business. Bennett and Bergin maintained the company had been set up as a means of security as both had concerns about their employer’s financial viability resulting from the Queensland floods. Bennett and Bergin were both terminated at a weekly sales meeting in front of fellow employees after Bennett denied the company existed. Bergin did not contradict Bennett’s response and his employment was also terminated. Although the employer did question Bennett and Bergin about the company at the meeting, it appears the employer had already decided to terminate Bennett and Bergin prior to the meeting. In ordinary circumstances, one would suppose creating a company to potentially compete with an employer’s business could be considered a valid reason for dismissal. (In this case, FWA did not accept that Bennett and Bergin were carrying on a business, and decided that they had merely registered a company). However, terminating Bennett and Bergin nevertheless was deemed to be unfair, largely due to the way in which they were terminated. The two major factors which made the termination unfair resulted from the meeting which took place. The first is that Bennett and Bergin weren’t advised that the meeting would involve a discussion regarding their company or that it would result in their termination. Both were under the impression that the meeting was just an ordinary weekly sales meeting. As a result, neither Bennett nor Bergin were ready to respond to the employer’s questions, nor did either of them arrange for a support person to attend with them. The second factor is that during the meeting Bennett and Bergin were terminated in front of all staff present at the meeting. This included administrative staff as well as operational staff. In addition to the above factors, it is also obvious that the employer’s conduct at the FWA hearing contributed to the success of Bergin and Bennett’s claim. Clearly, the following factors did little to persuade FWA to make an order in the employer’s favour:1. the individual who questioned Bennett and Bergin at the meeting, and who made the decision to terminate Bennett and Bergin did not give evidence at the hearing; and2. an investigation report that was prepared apparently showing that Bennett and Bergin had downloaded information from the company database regarding the employer’s customers, was not available at hearing, nor was it provided to FWA or the applicants. This case highlights the importance for employer’s to ensure they have proper procedures in place when terminating (or deciding to terminate) employees. It also indicates the need for employer’s to fully commit to FWA proceedings if an unfair dismissal claim is made and the employer chooses to defend it. Employers should ensure they seek legal advice prior to terminating employeesand ensure their existing termination, staff disciplinary and performance management procedures are reviewed by a lawyer with expertise in workplace relations.Harwood Andrews Lawyers have an expert Workplace Relations team that can assist you with advice and concerns you may have in this area. For further information, please contact:P- 1800 552 018E- info@harwoodandrews.com.auW- http://www.harwoodandrews.com.au Drugs and Alcohol in the Workplace: A Cocktail for Disaster? 2011-11-15T05:46:22Z drugs-and-alcohol-in-the-workplace-a-cocktail-for-disaster The Occupational Health and Safety Act 2004 (Vic) requires employers to take positive steps to provide and maintain safe working environments for workers and to ensure that others are not exposed to risks to health and safety arising from the workplace. It is self-evident that drug and alcohol consumption results in impaired judgment, coordination, concentration and alertness. The residual effects of drug and alcohol consumption away from the workplace and outside working hours can create serious occupational health and safety risks in the workplace as well as impacting on employee performance, and productivity. Employers ought to assess the risks in their individual workplaces of employees attending work under the influence of drugs or alcohol. The most obvious workplaces where such risk assessments should occur are those where employees are driving vehicles, using any form of machinery, handling hazardous substances or working at heights. However, most workplaces involve some elements of risk.Policy development There is no such thing as a one size fits all policy and care must be taken to ensure that the right policies and procedures are developed for each workplace, taking into account the nature of the workplace and its individual health and safety requirements. For example, where employees are required to undertake tasks for which coordination, alertness and concentration are particularly important (eg driving), it may be appropriate to introduce mandatory drug and alcohol testing and implement a zero tolerance approach to drugs and alcohol, while a less severe approach may be appropriate for employees engaged to perform less dangerous tasks, such as administrative tasks in an office environment. Where drug and alcohol testing is introduced, care should be taken to choose fair, reasonable and non-discriminatory methods for testing and for selecting individuals or groups to undergo testing. Consideration should also be given to the potential for objections or refusal to undergo testing and a secure chain of custody should be put in place in respect of any samples taken for testing. Good drafting is important in any workplace policy and a drug and alcohol policy should be written in clear and understandable terms, setting out the employer’s expectations, the obligations of employees, and identifying the disciplinary or other consequences that may flow from a breach of the policy. Vague or subjective terminology, loopholes and overly complex or restrictive procedures should be avoided. Implementation As is the case with any workplace policy, education and awareness are key to ensuring that a drug and alcohol policy is worth the paper it is written on. Clear explanation and training should be provided to all individuals covered by drug and alcohol policies and procedures, including those who have a role in enforcing them. Employers and employees both need to be aware of their obligations with respect to occupational health and safety. Policies and procedures should also be regularly reviewed and updated to keep up with changes to the law and the requirements of the workplace.Enforcement. Decisions of the Australian Industrial Relations Commission and Fair Work Australia have repeatedly confirmed that employers are entitled to rely on reasonable drug and alcohol policies in support of the discipline of employees, including dismissal in appropriate cases. However, in some cases, employees have succeeded in unfair dismissal claims where the drug and alcohol policy relied on was unclear or unreasonable, procedures were not properly followed, or where the employer did not follow a fair procedure in relation to the employee’s dismissal. Drug and alcohol policies and procedures should be applied and enforced consistently so that employees know what to expect and there is less scope for an employee to claim that he or she has been treated harshly in comparison to others. Inconsistency in application and enforcement may result in a particular dismissal being perceived to be unfair or discriminatory, even where a valid reason existed for the dismissal. Summary The adoption of appropriate drug and alcohol policies and procedures is an important step towards ensuring occupational health and safety compliance and minimising the risk of accident and injury in the workplace. Emphasis should first be placed on developing and implementing policies and procedures that are suitable to the particular requirements of your workplace and then on enforcing those policies and procedures in a fair, reasonable and effective manner.Should you require assistance with OH&S matters, workplace relations and development and implementation of policies and procedures in your workplace, Harwood Andrews Lawyers can assist you and provide advice on these matters. The author of this article, Jim Rutherford, Accredited Specialist in Criminal Law and Workplace Relations law is respected for his knowledge and expertise regarding workplace relations issues and regularly presents to employer groups and human resources managers on employment and industrial relations matters. T - 1800 552 018E - info@harwoodandrews.com.au More perils for employees using social media 2011-10-10T01:07:19Z more-perils-for-employees-using-social-media This time last yearHarwood Andrewswrote about the perils of social media in the workplace. Back then, many businesses had a limited understanding of how an employee’s private use of online social media sites could have an adverse effect on the business’ brand, reputation and even generate internal workplace disputes between employees. There has also been a noticeable increase in employees being dismissed from their employment following inappropriate use of social media, even if the conduct occurred in the employee’s own time. Last year’s article referred to the dismissal of a hairdresser who was terminated by her employer after she posted a comment on her Facebook page which related to grievances about her job. In this case, the dismissal was held to be harsh and unreasonable on the basis that the employee’s comments merely reflected her dissatisfaction with the hairdressing industry and did not directly relate to her employer. Recently, an employer’s dismissal of an employee for comments made on the employee’s Facebook page has further demonstrated how an employee’s conduct outside of work hours can lead to the dismissal of his or her employment. In this particular case, an employee of the Good Guys franchise in Queensland was terminated for serious misconduct after he posted the following comment on his Facebook page: “Wonders how the f--k work can be so f--king useless and mess up my pay again. C--ts are going down tomorrow.” The employee challenged the dismissal and argued that his Facebook page was only able to be read by 70 of his Facebook friends due to his privacy settings. A key flaw in the employee’s claim was that his Facebook friends included co-workers and subsequently the comments were relayed back to the employee’s superiors who notified the franchise’s director and the employee was then dismissed. Fair Work Australia upheld the employee’s dismissal on the basis that the employee’s outburst was not excused by the fact it was made on his home computer and outside of work hours. Plainly, the turning issue was that the employees’ comments were read by fellow employees and that it could not be accepted the employee would be unaware of the consequences of his actions in these circumstances. Fair Work Australia was also particularly concerned about the threatening nature of the employee’s comments and considered that the employer was justified in terminating the employee’s employment.Deputy President Swan stated that, “The separation between home and work is now less pronounced than it once used to be.” The employee’s comments did not specifically name his employer however it was held that the comments were clearly directed against his employer, whereas the hairdresser’s comments referred to above were deemed more broadly to be a passing shot at the hairdressing industry in general.This decision reaffirms the developing principle that an employee’s actions outside of the workplace can directly affect his or her employment. Employers ought to have well drafted social media policies which clearly set out the limits of social media in the workplace as well as the consequences to employees of inappropriate use of social media which could impact on the workplace and the employer. For further infomation or advice on workplace relations contact Harwood Andrews Lawyers Workplace Relations Teaminfo@harwoodandrews.com.au1800 552 018 Risk of personal liability for poor industrial relations practices 2011-09-16T01:51:20Z risk-of-personal-liability-for-poor-industrial-relations-practices Section 550 of the Fair Work Act 2009 provides that a person who is involved in the contravention of a civil remedy provision (including by aiding, abetting or being knowingly concerned in the contravention) is taken to have contravened that provision, resulting in potential individual liability for civil penalties. The risk of personal liability is highlighted in a recent decision of the Federal Magistrates’ Court in Fair Work Ombusdman v Centennial Financial Services Pty Ltd & Ors. The case involved an employer’s attempt to re-classify sales personnel as independent contractors rather than employees by entering into “Consultancy Agreements” with those personnel. The agreements provided for the sales personnel to be paid on a commission only basis, rather than receiving wages, without any substantial change to their duties. The Court found that despite the purported re-classification, the relationship remained one of employment. The employer had contravened a number of provisions of the Workplace Relations Act by misrepresenting proposed employment relationships as proposed independent contract arrangements (section 901), dismissing employees for the purpose of engaging them as independent contractors (section 902) and failing to pay the employees a basic period rate of pay for guaranteed hours (section 182). Under provisions similar to section 550 of the Fair Work Act, the Court found that the company’s director and HR Manager were involved in these contraventions and taken to have contravened the provisions personally. In considering the personal liability of the HR Manager, the Court recognised that he was ‘little more than a typist’ for the director, and was not the decision maker. The HR Manager gave evidence that although he prepared the agreements, he believed the sales personnel had in fact become independent contractors rather than employees. However, the Court found that it was irrelevant whether or not the HR Manager properly understood or had reason to consider the legal effect of the agreements or proposed changes to the method of engagement or remuneration of the employees. To find that he was involved in the contraventions, it was sufficient that he: 1.knew that the sales personnel had initially been engaged as employees; 2.was familiar with the terms of the agreements, and knew that the introduction of the agreements would see the sales personnel remunerated by commissions and not by wages;3.was aware of all of the facts which were subsequently found to prove an employment relationship existed between the company and the sales personnel; and 4.was otherwise aware of all material facts giving rise to the contraventions. The FWO has applied to have both the director and HR Manager ordered to pay civil penalties in relation to the contraventions and separately warned that it expects prudent workplace relations practitioners to understand their responsibilities, describing ‘gosh, I didn’t know’ defences as disingenuous. Harwood Andrews Lawyers provides specialist legal advice on industrial realtions practices. Contact theirIndustrial Relations team for further information.info@harwoodandrews.com.au1800 552 018 Warning to avoid inadvertent breach of federal workplace laws 2011-09-16T01:37:54Z warning-to-avoid-inadvertent-breach-of-federal-workplace-laws The warning follows an investigation by FWO of Coles supermarkets and Coles’ admission that it inadvertently breached one of the ten National Employment Standards (NES) prescribed by the Fair Work Act when it transferred a pregnant employee from her position as a fresh produce manager to a ‘safe job’ as a service assistant, paying $67.40 less per week. The transfer was made in accordance with Coles’ collective agreement, made before the introduction of the NES, which provided that a pregnant employee ‘may be transferred to a safe job at the rate and on the conditions attached to that job with no other change to the team member’s terms and conditions of employment’.The National Employment Standards provide that a pregnant employee with at least 12 months of service who is unable to continue working in her existing position because of illness or risks associated with her pregnancy or hazards connected with her position must be transferred to an available appropriate safe job with no change to her terms and conditions of employment (including remuneration). If no appropriate safe job is available, the employee is entitled to paid leave.As a result of its admitted breach of the Fair Work Act, Coles has entered into an enforceable undertaking with the FWO which requires it to:1.Reimburse pregnant employees found to have been underpaid as a result of the agreement;2.Post a notice in all of its stores about the rights of pregnant employees;3.Provide training to supervisors on company obligations to pregnant employees; and4.Donate $20,000 to Jobwatch Australia to fund educational activities for pregnant employees.Coles’ unwitting breach serves as an example of the potential risk employers’ face where their employment agreements or policies have not been reviewed for compliance with the Fair Work Act. Harwood Andrews Lawyers can provide professional legal assistance with workplace relations please contact Harwood Andrews Lawyers Workplace Relations team for further information on how to avoid inadvertant breach of federal workplace laws or any other workplace relations information.info@harwoodandrews.com.au1800 552 018 2011 Minimum Wage Increase - decision handed down 2011-06-05T23:59:56Z 2011-minimum-wage-increase-decision-handed-down Fair Work Australia’s Minimum Wage Panel has today ordered a 3.4% increase to minimum wage rates which will take effect from 1 July 2011.The increase will affect the national minimum wage for award and agreement free employees by increasing the weekly minimum rate by $19.40 per week to $589.30 or 51 cents per hour $15.51. Similarly, the 3.4% increase will also apply to all minimum pay rates for classifications under modern awards with weekly wages rounded to the nearest 10 cents. The revised modern award pay rates will be published on Fair Work Australia’s website shortly. The Panel adopted a percentage increase rather than a flat dollar increase, which has been adopted in recent years, as the Panel considered the flat dollar approach reduced the real value of the increases for higher level award classifications.Requests by employer groups to delay the increase for employers situated in areas affected by the recent natural disasters in Queensland was rejected by the Panel who forecasted healthy economic conditions for the year ahead.Employers who pay employees under modern awards or in accordance with the national minimum wage need to ensure the revised pay rates are implemented from 1 July 2011. Professional advice should be sought in the event of any uncertainty regarding the applicability of the increase to your employees.Harwood Andrews Lawyers can provide professionallegal assistance with workplace relations please contact Harwood Andrews Lawyers Workplace Relations team. info@harwoodandrews.com.au1800 552 018 Native Vegetation 'Time Stamping Project' - The Clock is Ticking 2010-11-09T01:15:03Z native-vegetation-time-stamping-project-the-clock-is-ticking The Department of Sustainability & Environment (DSE) is currently undertaking a project entitled the 'Time Stamping Project' (TSP) which seeks to record the extent of native vegetation within Melbourne's growth areas. The project forms part of the Victorian Government’s actions under its Melbourne Strategic Assessment agreement with the Commonwealth Government and the results of the project will form the basis of assessment for native vegetation removal in these areas. It is vital that land owners and developers act before 1 December 2010, the closing date for submissions to the TSP, to ensure that any inaccuracies in the extent of native vegetation as depicted on the DSE’s preliminary maps are identified and addressed through the submissions process. What does the project do? The TSP is a mapping exercise which is establishing a benchmark assessment of native vegetation on all land identified as having potential for urban development under the Delivering Melbourne’s Newest Sustainable Communities project. This benchmarking assessment will create a point in time record of existing vegetation that will be used as the basis for assessing all native vegetation removal proposals arising from the future development of affected land. In some areas adjacent to the Regional Rail Link project, vegetation site assessments have been completed by relevant agencies such as the Department of Transport. Where this information is available the mapping will be prepared using these assessments. In other areas the DSE is utilising remote assessment tools such as aerial photography to establish estimates of the extent of native vegetation. The purpose of the TSP is to introduce finalised native vegetation maps that will increase certainty for the development industry when calculating development costs and also assist in streamlining the planning approval process. The risk to the development industry is that once established there is no method of amending the maps. Therefore developers will be bound by the DSE mapping irrespective of whether it is representative of the actual extent of native vegetation on a parcel. Participation in the mapping process During October 2010, the DSE wrote to affected land owners providing copies of its preliminary mapping and inviting written submissions. The DSE will consider all submissions. Owners must provide access to DSE to undertake an inspection of their property and it is understood that the outcome of this evaluation will be advised in writing. Aside from basic information there is no guidance on the form submissions should take, no opportunity provided for a hearing before DSE, nor any automatic right to review in respect of the final mapping outcome. If owners do not object the DSE will adopt its preliminary assessment of native vegetation. Implications for land development Native vegetation offsets are a significant contributor to the cost of land development. As part of the Melbourne Strategic Assessment a 15,000Ha grassland reserve is being secured through a series of acquisitions. The DSE has advised that offsets for removal of native grasslands in the identified urban growth areas must be sourced from the newly secured grassland reserve. The DSE has provided an indicative cost of native grassland credits within the grassland reserve of $137,500 per Habitat Hectare. Any inaccuracies in the TSP mapping could significantly increase development costs and therefore the price of delivery to the end consumer. What you need to do Submissions to the DSE regarding the TSP must be received by post on or before 1 December 2010. It is important that affected persons act now to assess the accuracy of the TSP mapping. If you are the registered proprietor of land and have received correspondence from the DSE regarding this project you should, if you have not already, seek advice on the accuracy of the native vegetation mapping. If you are not the registered proprietor of affected land but are in negotiations with an owner, hold an option over land or are a purchaser under contract, you should immediately contact the registered proprietor to confirm whether they have received the correspondence from the DSE. Harwood Andrews Lawyers can assist in both the identification of an appropriate ecologist to undertake a peer review of DSE’s assessment of native vegetation and the preparation of submission to the TSP. For further information please contact the author of this articleGreg Tobin, a senior associate of Planning, Environment andLocal Government at Harwood Andrews Lawyers. Greg Tobin1800 552 018gtobin@harwoodandrews.com.au Sexual Harassment 2010-10-06T04:59:22Z sexual-harassment Claims for sexual harassment can be brought under both the Sex Discrimination Act (Commonwealth) and the Equal Opportunity Act (Vic). Both Acts set out that a person sexually harasses another person if the harasser engages in unwelcome conduct of a sexual nature in relation to the person harassed, where the person harassed would be offended, humiliated or intimidated. The David Jones case in Sydney, as well as a recent decision of the Full Court of the Federal Court; Poniatowska, highlight the need for all employers to educate themselves about sexual harassment and put in place as a matter of urgency, polices and procedures to minimise its occurrence at their workplaces. In Poniatowska the Full Court upheld a record damages judgment in the sum of $466,000. The damages were made up of $90,000 for pain and suffering, $200,000 for past loss of earning capacity, $140,000 for future loss of earning capacity, $3,000 for future medical expenses and $33,000 for interest.The claim by Poniatowska was made under the Sex Discrimination Act.Poniatowska was sexually harassed by two male employees. However the Court ordered that the damages be paid by the employer, although it did give the employer a right to seek a contribution from the employees, as well as four other respondents to the claim. In both the David Jones case and the Poniatowska case the buck stops with the employer. That is because of the notion of vicarious liability. If an employee of an employer sexually harasses another person, the employer will always be sued by the victim of the sexual harassment. The David Jones case highlights the number of legal actions that can be taken against a large number of respondents if sexual harassment is alleged. Ms Fraser-Kirk has issued Federal Court proceedings not only against David Jones, but against each of the Board of Directors individually, the CEO, the Chief Financial Officer, as well as the Group General Manager – Stores and operations. Different claims are made against each of the respondents.The causes of actions are complex and various. The claims include: • misleading and deceptive conduct under the Trade Practices Act and the Fair Trading Act (NSW); • breach of contract; • breach of duty of care to provide a safe system of work; • trespass; and• a claim in equity as a result of a failure by the employer and the CEO to fulfil promises made at the start of employment.Curiously Ms Fraser-Kirk has not yet brought a claim in the Federal Court under the Sex Discrimination Act or an adverse action claim under the Fair Work Act. She has foreshadowed that she will bring these claims once compulsory procedures in the Australian Human Rights Commission and/or Fair Work Australia have been completed. The damages that have been claimed include a claim for punitive damages which is 5% of the profit generated by David Jones between 2003 and 2010 as well as 5% of McInnes’ remuneration during his time as Chief Executive Officer. It is these latter claims that have given rise to speculation that the damages claimed are in the order of $37 million. Regardless of the outcome of the David Jones case, it does send a message to all employers to take issues of sexual harassment seriously. An employer can avoid a claim of vicarious liability if it is able to prove that it had policies and procedures in place designed to minimise or avoid the incidents of sexual harassment in the workplace.However it is not sufficient just to pay lip service to such obligations and merely have a policy in place without providing sufficient training and supervision in relation to the policy. The cost to an employer of being involved in a sexual harassment case is not just the cost of the claim and associated legal costs, but it is also the disruption to the workplace, the damage to victims of sexual harassment and their families, the adverse affect on staff morale, the damage to the company’s reputation, as well as the damage to the reputation of the directors and employees of the company, and if defended; the time taken by directors and employees to provide witness statements and give evidence in Court. Given the complexity and variety of causes of action which can be claimed, the time taken to devise adequate policies and procedures to minimise or avoid incidents of sexual harassment in the workplace will provide a tangible benefit to both employers and employees alike. Expert advice ought to be sought to ensure that any policies and procedures that are implemented provide adequate legal protections. Harwood Andrews Lawyers workplace relations team has extensive experience in advising and representing employers and employees in all aspects of sexual harassment, discrimination and employment laws. Our team is lead by Jim Rutherford, anaccredited specialist in workplace relations law together with lawyers, Rohan Kux and Melissa Whelan.If you would like further information about Harwood Andrews Lawyers or our workplace relations services please contact: Jim Rutherford on1800 552 018or jrutherford@harwoodandrews.com.au. Workplace relations, Independent Contracting: Risks Associated with Sham Arrangements 2010-06-22T05:22:47Z workplace-relations-independent-contracting-risks-associated-with-sham-arrangements-1 Workplace sham contracting arrangements can present significant risks for employers who are seeking to avoid the employment related statutory obligations, such as superannuation, payroll tax, workers compensation, leave entitlements and withholding tax. However employers who intentionally disguise employees as individual contractors face serious financial penalties of up to $6,600 for individuals and $33,000 for corporations if convicted. Sham contracting occurs where an employer engages a worker under the same conditions as a normal employment relationship, but classifies the worker as an individual contractor. The arrangement may be as blatant as an employer dismissing its employees then re-engaging them once an ABN is provided. In more discreet cases, there may be difficulties in establishing whether a sham contracting arrangement exists. Many workplaces engage workers who fit somewhere between the definition of employee and contractor. Where do they stand? It is necessary to collectively review the factors which point to whether a sham arrangement is in existence: - Who pays the tax and makes superannuation contributions? - Does the worker receive statutory leave entitlements such as annual and long service leave? - Is the worker engaged continuously or for a specific project?- Is the worker paid by the hour or at the completion of a project? - Can the worker delegate duties?- Is the worker under direct supervision and control of the employer? If an employer is prosecuted by the Fair Work Ombudsman under this provision and the worker is deemed to be an employee, the onus lies with the employer to prove that it believed there was no risk, harm or illegality in engaging the worker as an independent contractor. A defence of ignorance will not stand where the employer has taken deliberate or reckless steps to engage the worker as a contractor in order to avoid meeting employee entitlements. In addition to prosecution by the Fair Work Ombudsman, employers who fall foul of the sham contracting arrangements prohibition may face a claim for back-pay of unpaid leave entitlements, overtime and compulsory superannuation contributions owed to the worker, further increasing the financial consequences of engaging in this prohibited practice. Employers should seek legal advice regarding their existing and future contracting arrangements to reduce the potential liability of being prosecuted. Harwood Andrews Lawyers workplace relations team has extensive experience in advising and representing employers and employees in all aspects of industrial relations. Our team is lead by Jim Rutherford, an accredited specialist in workplace relations law together with,Rohan Kuxand Melissa Whelan. If you would like further information about Harwood Andrews Lawyers or our workplace relations services please contact Jim Rutherford on1800 552 018or jrutherford@harwoodandrews.com.au. Accident Compensation Act - New discrimination laws: Beware of hefty fines 2010-04-06T06:28:52Z accident-compensation-act-new-discrimination-laws-beware-of-hefty-fines In addition to any prosecution by WorkSafe, there will be a new right for employees to bring their own action for damages to redress discrimination in the Magistrates’ Court. The reforms are designed to enhance protection against discrimination for employees making or pursuing compensation claims or giving notice of a workplace injury. The range of prohibited discriminatory conduct has been extended to conduct falling short of dismissal such as demotion, transfer or a reduction in hours consistent with obligations under Occupational Health & Safety and Equal Opportunity laws. The reforms also extend protection against discrimination to prospective employees; for example, job applicants. The maximum penalties for a WorkSafe prosecution have been increased drastically from $2,920.50 to $140,184 for a corporation ($28,036.80 for an individual). In addition, orders for reinstatement, compensation for lost income up to 12 months and, in the case of prospective employees, orders requiring employment are available to the court when sentencing for a discrimination offence. Employees may also request WorkSafe to bring a prosecution if he/she considers that an offence has occurred and no prosecution has been bought within 6 months of the occurrence of the alleged offence. In both criminal and civil cases, the onus is on the employer to satisfy the court that the reasons for the conduct complained of were not due to the compensation claim, but were for other operational reasons. Employers should also seek legal advice before making any decision in relation to the ongoing employment of an employee who has or may have a compensation claim. Harwood Andrews Lawyers workplace relations team has extensive experience in representing employers in the complicated area of Accident Compensation and discrimination prosecutions. Our team is lead by Jim Rutherford, an accredited specialist in workplace relations law together with, Rohan Kux and Melissa Whelan. Our services include: •complaints of sexual harassment and discrimination •workplace policies on matters such as sexual harassment, discrimination, workplace bullying and dispute resolution •unfair dismissal, unlawful termination and common law wrongful termination•defending occupational health and safety prosecutions Our services are not limited to the defence of prosecutions. We also assist employers to understand their rights and obligations and the possible outcomes of their decisions. We provide advice on the ways employers can reduce the risk of a Worksafe prosecution by ensuring that they have in place comprehensive and up to date discrimination and occupational health and safety policies. If you would like further information about Harwood Andrews Lawyers or our workplace relations services, including occupational health and safely, please contact Jim Rutherford on 03 5225 5225.