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  • The ‘Litigious’ Lottery: Costs Regimes in Employment Litigation

    The ‘Litigious’ Lottery: Costs Orders in Employment Litigation

    Costs, it might be said, are an unsexy topic. Amidst the cut and thrust of high stakes litigation, questions of costs can be easily overlooked. Yet that does not diminish their importance. Many a courtroom victory has been soured by an unfavourable costs order.

    In the employment context, costs take on additional importance. The financial stakes in employment disputes are often lower than in commercial litigation, such that costs can quickly surpass any damages awarded. Almost all employment grievances involve at least one individual party, who ordinarily will be far less able to absorb an adverse costs order than a corporate litigator. The diverse variety of costs regimes governing workplace-related litigation, which in turn often have complex and uncertain exceptions, only amplifies the necessity for employment lawyers to be attuned to the law in this area.

    The following article intends to provide practitioners with an accessible guide to costs in employment disputes. It will begin by considering the costs protections offered by the Fair Work Act 2009 (Cth) and Public Interest Disclosure Act 2013 (Cth), before identifying other prominent employment related claims which lack beneficial costs regimes. It then concludes by highlighting an important yet often overlooked issue — the application of inconsistent costs regimes to litigation where multiple causes of actions are pleaded.

    Fair Work Act

    The general position in disputes under the Fair Work Act, which account for the bulk of employment litigation, is that parties bear their own costs. Thus, in unfair dismissal and general protection claims, among others, the costs result is the same — win, lose or draw. This default position gives effect to a desirable policy objective: encouraging the resolution of employment disputes in a cheap and efficient manner. When neither party can be awarded costs, there is — in most circumstances — a common interest in avoiding protracted litigation. Although there are nuances to the costs treatment of different sections of the Fair Work Act, and slight deviations depending on the chosen forum (whether the Fair Work Commission or a court exercising federal jurisdiction), generally the exceptions to this no costs principle are limited to three. Read More.

    Written by John Wilson, Director, Employment & Workplace Relations, and Kieran Pender, Law Clerk.

    First published in Ethos: Journal of the ACT Law Society.

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  • NDA Non-Disclosure and Confidentiality Agreements

    Non-Disclosure and Confidentiality Agreements – four quick tips

    These days, information is can be the most valuable asset a business can own – so how do you protect it when entering into a new business partnership? Confidentiality or Non-Disclosure Agreements (NDA) are used in a wide variety of business relationships, where protection of one or both sides’ confidential information is essential, whether it’s customer and contact lists, design concepts or logo material, employee data or the protection of non-patented inventions being presented to a manufacturer or new investor.

    Here are four quick tips to keep in mind when crafting an NDA for your business.

    1. Define the confidential information appropriately
    Your first question should be what information needs to be protected? The key to a successful and enforceable NDA is an accurate and comprehensive definition of what information is confidential and covered by the agreement. If you are intending to “open your books” then it should be an exhaustive definition that covers all business information disclosed in the course of negotiations, the relationship or for the purpose of the collaboration. Without a definition, you may have difficulty enforcing the parameters of the NDA in a later dispute.

    2. Permitted purpose
    You should specify the purpose for which the confidential information is being disclosed and can be used. This will limit the recipient’s use of the confidential information to that prescribed purpose. Any other use for any ulterior purpose will be a breach of the agreement, with liability consequences.

    3. Disclosure to employees
    If you are disclosing information to a company or entity, then the information will often need to be shared with the directors and/or employees of that entity. An NDA can ensure that the original recipient is held responsible for the actions of their employees and others in possession of the confidential information and place limits on who can receive the information, minimising the potential distribution of your confidential information.

    4. End of the agreement
    Consider the “end-game” – NDAs should make clear what happens to the information at the end of the business relationship, whether this occurs upon the expiry of a fixed term on a certain date, or when certain conditions are met. Details to cover here include the return or destruction of any confidential information still in the possession of the recipient and a continuing obligation to not disclose.

    The above tips are designed to minimise the risk of your confidential information being released to the general public and to give certainty to the contracting parties. If you are considering a business collaboration or commercial joint venture, we recommend that you seek professional advice on whether an NDA is an appropriate mechanism to protect your information.

    First Published in B2B Magazine.

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  • swearing-in the workplace

    Offending angels: on swearing in the workplace

    When is it OK to discipline an employee for swearing in the workplace?

    Everyone has done it. Whether in a fit of rage, while watching a close sports game or experiencing pain, the occasional expletive is part of a standard vocabulary. But what happens when such language is uttered in the workplace? At what point does friendly banter or light-hearted self-criticism become a breach of the public service code of conduct?

    The answer is no longer as simple as it might once have been; coarse language has become increasingly commonplace in society. As a fair work commission explained last year, “there is no doubt that workplaces are more robust in 2015, as they relate to the use of swearing, than they were in the 1940s”. Drawing the line between acceptable and unacceptable conduct is increasingly difficult.

    Two recent private sector cases highlight this uncertainty. In Sayers v CUB Pty Ltd, a Carlton & United Breweries employee told a colleague “you are nothing but a dirty gringo c—” and “any place, any time, you name it, you are going down”. After he was sacked on the ground of serious misconduct, Mark Sayers applied for unfair-dismissal relief.

    Despite a rather creative application, which asserted that “gringo” was not intended as a racist slur because the target of the comment was South American, and the term is traditionally used by South Americans to disparage North Americans, Sayers’ claim failed. Fair Work Commission deputy president Richard Clancy observed that “there is no place for behaviour in the workplace that combines threats of violence, racial slurs of such an offensive and degrading nature, and such inappropriate abuse and offensive language”.

    In contrast, in Goodall v Mt Arthur Coal Pty Ltd, a mining truck operator won reinstatement after his dismissal from BHP Billiton’s Hunter Valley coal mine. Jodie Goodall had engaged in “banter and chat” over a radio system “as a means of dealing with fatigue” towards the end of a 12½-hour night shift. This “banter” included comments that a colleague was…Read more.

    First published in the Canberra Times, July 2016.

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  • Drugs and property: Managing a rental property with a drug dealer: how to manage a tricky situation

    Managing a rental property with a drug dealer: how to manage a tricky situation

    The statistics regarding drugs in Australia are overwhelming.  Nearly one in two Australians have used an illicit substance in their lifetime; 15% have used an illicit substance in the last 12 months; and 93,148 were arrested for “dealing” an illicit substance in 2010/11.[1] But what should you do if a property you manage is tenanted by a drug dealer?

    This situation came up in the recent NSW Case of Davis v NSW Land and Housing Corporation [2016] NSWSC 1025. The landlord tried to kick out a tenant because the tenant’s husband had been using her unit and common property to sell heroin.

    The Court ruled that the tenant, by allowing her husband to sell heroin from the premises, had permitted the use of the premises for the purposes of the sale of a prohibited substance (in contravention of section 91 of the Residential Tenancies Act 2010). This meant the landlord’s successful application to the Tribunal to terminate the tenancy agreement was valid.

    In the ACT the Residential Tenancies Act 1997, unlike its NSW counterpart, does not have specific provision allowing ACAT to terminate a residential tenancy if the premises are used in the cultivation or supply of a prohibited drug.[2]

    However, the Residential Tenancies Act 1997 does insert into all residential tenancy agreements a clause prohibiting the tenant from using the premises, or permitting them to be used for an illegal purpose.[3]  If the tenant does use or permit the premises to be used for an illegal purpose, the landlord can seek to have the tenancy terminated by taking the following steps:

    1. Serve on the tenant a notice to remedy the breach if the breach is capable of being remedied (if a tenant is selling drugs from the premises, the breach may be unable to be remedied);
    2. If the tenant does not remedy the breach, serve on the tenant a notice to vacate the premises; and
    3. If the tenant does not vacate, apply to ACAT for an order terminating the residential tenancy.

    If ACAT is satisfied that the breach justifies a termination, it will order the termination of the tenancy.

    Although issues such as a tenant selling illicit substances or drugs do not arise every day, residential property managers should still be aware of the terms of the Residential Tenancies Act 1997 allowing termination of a tenancy agreement.

    The Property team of BAL Lawyers, a Corporate Partner of REIACT, can assist agencies with tricky situations.  If you find your agency or your landlord clients in a tricky situation please give us a call.

     

    [1] Statistics from http://www.druginfo.adf.org.au/topics/statistics-trends#illicit and http://aic.gov.au/media_library/publications/facts/2013/facts_and_figures_2013.pdf.

    [2] Residential Tenancies Act 2010 (NSW) s 91(1).

    [3] Residential Tenancies Act 1997 (ACT) s 70(a).

    This article was first published in REIACT newsletter, September 2016.

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  • Assignment of a Lease by Conduct – Landlords Beware

    Assignment of a Lease by Conduct – Landlords Beware

    The recent case of Chamberlain Group Pty Ltd v Kids for Life Academy Pty Ltd [2015] NSWCA 241 (Chamberlain Group) demonstrates that landlords should tread carefully when requests for consent to assignment of leases are made by tenants. Lease documents will generally set out the requirements necessary for consent to assignment of a lease, however the conduct of the parties may also be taken into account when determining whether or not consent to assignment of a lease has been obtained.

    In Chamberlain Group, the Court ruled that the landlord’s conduct supported a conclusion that “consent” had been provided to the request for assignment of the lease regardless of the fact that no formal documentation had been executed by the parties.[1] The following factors were relevant to this determination:

    1. the landlord was aware that the assignee (a childcare operator) was already in possession of the Premises and was operating the business and held the relevant business licence;[2]
    2. the landlord had continued to collect rent from the assignee;[3]
    3. the landlord had allowed the assignee to remain in the Premises at a time when the previous tenant was deregistered as a company and ceased to exist;[4] and
    4. there was a handwritten note signed by the landlord and the assignee whereby the landlord agreed to attend to registration of the transfer of the lease.[5]

    The Court held that the conduct of the landlord in this case amounted to the landlord providing the necessary “consent” set out in the lease and this was despite the fact that no assignment documentation had been formalised and no transfer of lease had ever been registered.[6]

    The terms of the lease in this case stated simply that landlord “consent” was the necessary pre-condition to assignment, not that an agreement regarding landlord “consent” be obtained first.[7]

    The Court confirmed that whilst there was no registered lease to the assignee on the title to the land, there was nonetheless an enforceable unregistered leasehold interest in the Premises and the caveats lodged on the title to the land by the assignee to protect its interests were upheld.[8]

    It is important to remember that not all leases will be drafted in the same manner and that conduct can amount to consent in certain circumstances. If you require advice and assistance in a matter involving an assignment of lease, please contact a member of our experienced Leasing Team.

    Changes to mandatory energy efficiency disclosure for office premises:

    From 1 July 2017 premises capable of being used as an office which are offered for lease will require a Building Energy Efficiency Certificate (BEEC) in accordance with the Building Energy Efficiency Disclosure Act 2010 if the area of the premises is greater than 1000m2 (this reduces the threshold from 2000m2). After 1 July 2017 owners of premises with a lettable area over 1000m2 but under 2000m2 must ensure compliance with the obligation to have a BEEC before offering to lease the premises. Significant financial penalties may be imposed for noncompliance.

    [1] Chamberlain Group [2015] NSWCA 241 paragraph [24].

    [2] Chamberlain Group [2015] NSWCA 241 paragraph [28].

    [3] Chamberlain Group [2015] NSWCA 241 paragraph [27].

    [4] Chamberlain Group [2015] NSWCA 241 paragraph [30].

    [5] Chamberlain Group [2015] NSWCA 241 paragraph [40].

    [6] Chamberlain Group [2015] NSWCA 241 paragraph [51].

    [7] Chamberlain Group [2015] NSWCA 241 paragraph [22].

    [8] Chamberlain Group [2015] NSWCA 241 paragraph [51].

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  • No Fowl Play

    No fowl play! The role of Council policy in controlling animal numbers

    The recent Land and Environment Court of New South Wales decision in Tanious v Georges River Council [2016] NSWLEC 1330 is a timely reminder of the utility of a local orders policy for NSW councils in relation to controlling the number of animals at a residential property.

    The facts 

    Mr Tanious kept 3 roosters, 30 chickens, 1 turkey rooster, 1 female turkey and between 130 and 150 Japanese quail at his residential premises. Georges River Council (formerly Hurstville City Council) considered that the keeping of this number of birds was excessive for the site and had the potential to cause unhealthy conditions.

    On 18 January 2016 the Council issued an order to Mr Tanious under section 124 of the Local Government Act 1993 which required him to remove all poultry from the property with the exception of 10 birds (including all roosters but excluding offspring to three months of age), and required the remaining birds to be kept in a paved poultry house 15.2 metres from a dwelling. Mr Tanious appealed the Council’s order and sought to set it aside or alternatively, to increase the number of birds that may be kept at his premises.

    The Council relied upon its ‘Local Orders Policy – Keeping Animals’ (Policy) for the purposes of assessing the number of, and manner in which, birds could be kept at the premises. In the case of domestic poultry and guinea fowl, the Policy permitted a maximum number of 10 birds with poultry houses to be 4.5 metres from buildings. In the case of other poultry (including ducks, geese, turkeys, peafowl and other pheasants), the maximum number of birds permitted was 5 and the poultry housing was required to be at least 30 metres from a dwelling. The Policy also noted that a greater separation distance may be required in particular cases; hard paving must be provided under roosts if within 15.2 metres of a dwelling and roosters were prohibited where crowing will cause offensive noise.

    The outcome

    The Court was guided by the Policy in coming to its decision. It noted that the Policy sought to regulate an appropriate number of animals that can be kept in a residential property within the community, had been the subject of public consultation and had recently been reviewed.

    Unsurprisingly, the Court considered that the number of birds kept by Mr Tanious at his premises needed to be reduced. However, it found that the Policy permitted up to 15 poultry birds (including the Japanese quail, but excluding offspring to 3 months of age)  to be kept and that it only required a separation distance of 4.5 metres between a paved poultry house and the dwelling house. It therefore applied the Policy and varied the terms of Council’s order so it was consistent with these requirements.

    The Court supported the Council’s position in relation to the keeping of the roosters. It found that, having regard to the proximity of nearby residential properties and the manner in which the birds were housed, the keeping of a rooster was likely to result in ‘offensive noise’ (as defined in the Protection of Environment Operations Act 1997) and required them all to be removed.

    What can your Council learn from this case?

    The Court’s reliance upon the publicly exhibited policy as a guiding factor to determine the number of birds and the manner in which they are kept demonstrates the value of a clearly stated local orders policy for the keeping of animals.

    The decision also illustrates that the Court will hold a Council accountable to the terms of its orders policy unless there are clear reasons not to do so.

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