News & Events

  • Victoria recognises the rights of de facto children

    Victoria recognises the rights of de facto children

    The Victorian Court of Appeal recognised earlier this month in the case of Scott-Mackenzie v Bail that stepchildren of a de facto couple have the same rights as of married couples for the purposes of Family Provision Applications. The effect of this case is significant (at least in Victoria, for now) as it overturns the common law principal that a stepchild/step-parent relationship is created and recognised only when the parties are married.

    The case concerned a claim brought by a stepchild pursuant to Part IV of the Administration and Probate Act 1958 (Vic). Part IV of the Act allows an “eligible person” to bring a claim for provision (or further provision) from the estate of a deceased person. The definition of eligible person, contained in section 90 of the Act includes the following:

    (c) a stepchild of the deceased who, at the time of the deceased’s death, was—

    (i) under the age of 18 years; or
    (ii) a full-time student aged between 18 years and 25 years; or
    (iii) a stepchild with a disability;

    In this case, the applicant’s mother was in a domestic relationship with the deceased for 40 years until the applicant’s mother died in 2001. Following the death of the applicant’s mother, the deceased commenced a domestic relationship with another woman and when he died, left his entire estate to her. The estate was worth just under $1 million.

    The Court stated the following in relation to the word “stepchild”:

    “In modern life, domestic partnerships are no longer uncommon. They have become considerably more common than they were, say, 30 years ago. Domestic partnerships can, and frequently do, have all of the appearances of partnerships that are marriages and have been recognised by the Parliament as a legitimate alternative to marriage. The fact that the word ‘stepchild’ came into existence at a time before domestic partnerships became more common explains why definitions have previously referred to either an original marriage and a subsequent marriage, or merely a subsequent marriage”.

    It is important to note that the Court found the stepchild/ step-parent relationship of de facto couples is broken by separation of the couple, not by death of one of the partners. Therefore, if the deceased and the applicant’s mother had separated before her death, the stepchild/ step-parent relationship would have been broken.

    It is important to note that this is a Victorian case and therefore, Victorian law. It is uncertain whether the ACT or NSW Supreme Courts will apply this case should a similar situation arise. In Queensland, section 40A of the Succession Act continues to refer to a stepchild/step-parent relationship as one arising only by way of marriage.

    The takeaway from this case is that you may need to carefully consider children from a de facto partner when writing your Will or, if you are the child of such a relationship, to take considered advice in relation to any potential family provision claim.

    To make sure that your will and estate plan takes care of your loved ones, please contact us.

    Read more
  • Canberra Employment Obligations

    Your rights and obligations under Australian Employment law

    Whether you are moving to Canberra as an employee or employer, your future employment relationships are likely to be at the forefront of your mind. In 2009, significant changes were made to Australia’s industrial relations law which will affect those relationships. Given strong penalties are awarded for non-compliance, it is important that you are familiar with your rights and obligations under Australian employment law.

    Here are five things you need to know:

    1. National Employment Standards

    With very few exceptions, workplaces in Australia are governed by the Fair Work Act 2009 (Cth). Therefore, it is likely your future employment in Australia will be subject to the National Employment Standards (NES) contained in that Act. Covering areas from maximum working hours to leave, these 10 entitlements represent a minimum standard that no employment contract can fall below.  Failure to comply with these standards can leave contractual terms voidable and result in considerable penalties being awarded against the employer.

    2. Wages

    Pay is central to every employment relationship and Australia has a famously generous national minimum wage – $17.70 per hour in 2017. But this is not the end of the story. Under the 2009 changes, the wages received by many employees are determined by industry awards. These set base pay rates for an industry according to the nature of work undertaken and frequently exceed the national minimum. Award rates are updated regularly (every six months in some industries), so it is essential to regularly check the applicable award.

    3. Unfair Dismissal

    Employers should be cautious of, and employees familiar with, the right of a recently dismissed employee to make an application to the Fair Work Commission arguing that their dismissal was harsh, unjust or unreasonable. If the Commission agrees, employers may be required to reinstate the employee or pay them compensation. What constitutes a harsh, unjust or unreasonable dismissal will depend on the circumstances. Employers can also be found liable under these rules if they handle a dismissal in an improper manner, even if there is a valid underlying reason for the dismissal.

    4. Adverse Action

    In keeping with Australia’s strong stance against discrimination, Australian employees are protected from the “adverse actions” of their employer if those actions were taken due to certain protected attributes possessed by the employee. In other words, an employer is liable for discrimination on the basis of a protected attribute – including gender, sexuality, disability and race – even when those actions would otherwise be legal (for example, terminating employment contracts). As with unfair dismissal, employers may face severe penalties from the Fair Work Commission for breaching these protections.

    5. Jurisdiction

    Due to Australia’s federal structure, many employment relationships attract obligations under Commonwealth (or federal) legislation as well as state/territory statutes. In many instances, these obligations are concurrent. Under Australian industrial law, rights and obligations can even arise for employment contracts executed overseas. Employers (and their employees) should be aware of these jurisdictional traps.

    John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. He thanks Robert Allen for his help in preparing this article.

    Read more
  • superannuation

    Impact of Superannuation Reforms on Estate Planning

    The Federal Government has announced changes to superannuation from 1 July 2017 that will affect many individuals. As we draw closer to 1 July, more and more people are seeking advice on how the changes will affect them and specifically, what the changes mean to their existing wills and estate plans.

    The Federal Government has imposed a $1.6 million balance cap on the total amount that a member can transfer into a tax-free pension phase account from 1 July 2017. This will mean that from 1 July, many members will need to transfer a significant portion of their superannuation benefits into accumulation phase, which will attract the superannuation 15% tax on income generated within the fund, including capital gains.

    How will the member’s family and their estate be impacted when the member dies? Consider the situation where a husband and wife each have $2 million in pension phase. The husband and wife each execute binding death benefit nominations to leave their super to the other. The husband subsequently dies.

    Traditionally, the wife could maintain the benefits within the superannuation environment by commencing a death benefit pension and subsequently commuting the pension (after the relevant period of time, known as the 3 month/6 month rule, and provided the super fund deed permitted this to take place).

    From 1 July however, things will need to change. The following would need to occur:

    • During their lifetimes, the husband and wife would each need to wind back $400,000 from their pension accounts into their accumulation accounts, thereby holding no more than $1.6million within the pension phase
      On the death of the husband:
    • The wife would need to wind back $1.6 million from her own pension account into accumulation, thereby holding $2 million in accumulation phase;
    • The wife could then commence (or receive a reversionary pension) from the deceased husbands pension account to the value of $1.6 million; and
    • The husbands remaining $400,000 held in his accumulation would need to be withdrawn or “cashed out” from the superannuation environment

    Once the funds are out of the superannuation environment, contribution limits and the “work test” may prevent the wife’s ability to recontribute funds back into superannuation.

    Auto-reversionary pensions offer some relief and flexibility by not causing a debit to the recipients transfer balance account until 12 months after the death of the member. As a result, a reversionary pensioner has 12 months decide whether to cash out their pension or retain it.

    The estate planning issue is then where should this lump sum withdrawal be paid. It will be necessary to review and update estate plans including Wills and binding death benefit nominations in light of these changes:

    • if funds are required to be cashed out from the superannuation environment, this might impact a family’s overall distribution of their estate and undo estate planning strategies previously put in place;
    • binding death benefit nominations may need to be reviewed and amended as they may no longer be appropriate in light of the recent changes;
    • binding death benefit nominations may need to be limited to ensure the surviving spouse’s transfer balance cap is not affected. Particular care needs to be taken when drafting binding death benefit nominations in light of recent case law;
    • In the case of second marriages where superannuation may have been used as an estate planning tool to provide for the spouse, this arrangement may need to be unwound and an alternate arrangement considered;
    • Superannuation trust deeds may require review and amendment to ensure there is maximum flexibility including the ability to execute (non-lapsing) binding death benefit nominations, and auto-reversionary pensions.

    Make sure you get your estate affairs in order before the changes arrive on 1 July 2017.

    If you need assistance with superannuation reforms, or Estate Planning, please contact us.

    Read more
  • social media and performance management

    Keeping Performance Management On Track

    Workplaces of all shapes and sizes need employees to pull their weight, so why do so many organisations tolerate underperformance?

    Dealing with underperformance and performance management is not easy. For an organisation to succeed, employees need to be meeting and exceeding performance expectations. Yet too often unsatisfactory performance is ignored and placed in the ‘too hard’ basket.

    The video below illustrates a case study about managing performance, and how easily it can go wrong.

    The reasons for this are twofold. At a human level it can be challenging to tell a colleague that their work is substandard. Add in the perceived legal complexities surrounding performance management, including the potential for allegations of bullying or victimisation in response, and it is unsurprising that many underperforming staff are simply left to their own devices or quietly shuffled elsewhere.

    But given the financial, human and workplace culture consequences of ignoring underperformance, it is imperative that management adopt a ‘can do’ mindset in this area. Minor or aberrant instances of underperformance should be courteously nipped in the bud, and not escalated unnecessarily. For more serious or longer term underperformance, let me give you an outline of key steps in any ‘defensible’ performance management process.

    The first step is to identify whether a genuine performance problem exists. Information gathering is essential. In addition to obtaining any quantitative data, holding regular performance reviews and keeping written notes allows underperformance to be identified with more certainty than relying on the ‘feeling’ of a direct supervisor. Ensure that the performance expectations are aligned with the relevant duty statement or employment agreement, the resources the employee has to work with, and how much they are being paid.

    The second step after a genuine gap in performance is identified is to find out if the organisation has a performance management policy. If they do, this should be followed to the letter to avoid claims of unfair dismissal, breach of contract or procedural fairness. [If the policy is hard to apply because it is poorly drafted – a common occurrence – it should be followed as best as possible in the instant case, and then later rewritten to make it work for the organisation]. If the organisation doesn’t have a policy, then a sound framework to follow is summarised as follows: Identify the gap in performance with specificity, and identify reasonable measures to fill the gap within a reasonable time frame. Inform the employee in writing of these matters, as well as the consequences of non-improvement. ‘Reasonableness’ is an objective test, so getting a second manager’s opinion on the contents of the letter would be a good idea.

    The third step is to keep the process on track during the assessment phase. Again, follow any policy, but if there isn’t one, monitor and give feedback against the notified performance measures. This means the assessment manager needs to be present during this period. That manager’s communications should be constructive, courteous and on-task, regardless of how the employee conducts themselves during this stressful phase. A common de-railer at this point is often an allegation by the employee that their manager is ‘bullying’ them. But ‘reasonable performance management’ carried out in a ‘reasonable manner’ is not bullying at law, nor in most Australian jurisdictions, is it grounds for workers’ compensation for any resultant stress injury.

    The fourth step is decision-making at the conclusion of the assessment period. If, on objective assessment, performance has satisfactorily improved over the period, then mission accomplished. However, where genuine underperformance remains, this is generally a valid reason for termination of employment, in both the public and private sectors. The employee should be notified of any intention to terminate in writing, giving opportunity to respond ahead of any decision being recorded in writing. Transfer should only be considered where the transfer is to a role that will not be affected by the identified performance deficit.

    Finally, there is nothing wrong with offering an employee up-front the opportunity to resign (with or without an incentive), as an alternative to going through the performance management process.

    Underperformance affects an entire organisation. Individual instances can and should be managed by common sense, fairness, and following any policies to the letter. Remember: the standard we walk past is the standard we set.

    Gabrielle Sullivan is a Director in the Employment and Workplace Relations team at Bradley Allen Love Lawyers.

    Read more
  • Pushing the Boundaries

    Pushing the Boundaries - Episodes One and Two

    Episode one of Pushing the Boundaries aired in Canberra on Saturday 6 and 13 May.

    If you missed out, you can watch it below:

    Pushing the Boundaries Episode one:

    Pushing the Boundaries Episode two:


    Mark Love was chosen as a guest panelist, and had the pleasure of reviewing the Kim Harvey School of Dance by Clarke Keller Architects. This particular building also won the Art in Architecture Award at the 2016 Australian Capital Territory (ACT) Architecture Awards.

    Read more
  • intern employee - BAL Lawyers (2)

    Intern or Employee? A potentially expensive question

    Internships are becoming increasingly prevalent in the legal sector and elsewhere. While internships can be beneficial for intern and host organisation alike, these atypical workplace arrangements pose several thorny employment law questions. When, as is commonplace, interns are unpaid or only receive a modest ‘stipend’, these dilemmas become particularly pressing.

    The foremost question concerns the legal status of the intern. ‘Internship’ is not a legal term of art – it has no meaning at common law or under the industrial relations regulatory landscape created by the Fair Work Act 2009 (Cth). An intern is therefore either an employee, or has no legal relationship whatsoever with the host organisation. There is no middle ground. This article will not consider the status of ‘volunteers’ in this context, although  that topic is perhaps deserving of a separate contribution.

    Where an intern is objectively considered to be an employee, they are entitled to the minimum wage and basic entitlements as set out in the Fair Work Act, National Employment Standards contained therein and any applicable award or enterprise agreement. Accordingly, organisations who use  interns without providing them with the requisite wages and conditions risk exposure to considerable liability – through litigation initiated by either interns themselves or the Fair Work Ombudsman – for non-compliance with the Fair Work Act. This risk has been exacerbated by recent developments.
    The Fair Work Ombudsman’s crackdown Concerned by the apparent increase in unpaid work arrangements across the  country and perhaps inspired by highprofile internship-related lawsuits in the United States, in 2012 the Fair Work Ombudsman commissioned a report into the phenomenon. In Experience or Exploitation: The Nature, Prevalence and Regulation of Unpaid Work Experience, Internships and Trial Periods in Australia, academics Andrew Stewart and Rosemary Owens found that – despite a dearth of official data – internships are undeniably on the rise. They observed that ‘unpaid work exists on a scale substantial enough to warrant attention as a serious legal, practical and policy challenge in Australia’.

    The Ombudsman was quick to respond, and has successfully prosecuted three companies in recent years for utilising unpaid or underpaid interns. In the first case to be determined, Fair Work Ombudsman v Crocmedia Pty Ltd [2015] FCCA 140, Judge Riethmuller penalised a Melbourne-based sports media company $24,000 for an ‘exploitative’ arrangement where two individuals undertook work in return for modest ‘expenses’ payments.

    Similarly, in Fair Work Ombudsman v Aldred [2016] FCCA 220, the respondent was ordered to pay $17,500. While these sums may seem modest, Judge Riethmuller sounded an ominous warning at the end of his Crocmedia judgment. There can be little doubt, he noted, ‘that the penalties are likely to increase significantly over time as public exposure of the issues in the press will result in respondents not being in the position of being able to claim that a genuine error of categorisation was made’ (at [46]). This prediction came to fruition in mid-2016, when the Federal Circuit Court imposed a penalty of almost $300,000 on a media company that had failed to pay an intern for 180 hours of work and committed various other breaches of the Fair Work Act (see Fair Work Ombudsman v AIMG BQ Pty Ltd [2016] FCCA 1024).

    Continue Reading…

    First published in the NSW Law Society Journal. Written by John Wilson, Director of Employment Law, and Kieran Pender, Law Clerk.

    Read more
  • Stamp Duty Changes in the ACT

    Stamp duty changes in the ACT

    What you need to know about Stamp Duty when buying property in the ACT

    Upon implementation of the reforms, Land and improvements duty (often referred to as stamp duty) will not be payable until a transfer of dutiable property has been registered with the Registrar-General. An instrument that gives effect to a dutiable transaction such as a Contract for Sale must be lodged with the registrar-general within 14 days of the date the agreement is completed. Duty must then be paid within 14 days of the date of registration of the Transfer.

    This represents a significant change for those purchasing property in the ACT, who will not be required to pay duty until after settlement and registration have occurred. These changes also apply to the purchase of an off-the-plan unit, where duty will not be payable until registration of the Transfer. Currently stamp duty for an off-the-plan purchase is payable within 1 year of entering into the Contract or earlier if the unit is completed. Now you will not have to pay stamp duty until the unit is completed.

    How is the stamp duty amount secured?

    We assume in practice ACT may adopt a system similar to that in Victoria (where the incoming mortgagee registers the Transfer and attends to payment of stamp duty from the loan amount). Any unpaid duty liability under the new regime will become a secured charge on the property under the Taxation Administration Act 1999, allowing the ACT government to take measures to recover the debt. Accordingly, purchasers will need to ensure they have the funds to pay the duty when the liability arises.

    Exemptions 

    There will also be changes to the application process for exemptions to stamp duty. To apply for an exemption a purchaser must indicate the category of exemption when the Transfer is lodged with ACT Land Titles. The purchaser will not be required to provide supporting evidence unless requested by the ACT Revenue Office. However, as with the current duty model it appears there will be no pre-assessment of exemptions and purchasers must ensure they are able to pay the full duty amount if an exemption is not granted.

    Conclusion 

    If you require specific duties advice or advice regarding a particular transaction, please do not hesitate to contact a member of our experienced Commercial and Real Estate Team.

    References
     1. Real Estate Institute of Australia, Real Estate Market Facts December Quarter (2016). 
     2. Real Estate Institute of Australia, Real Estate Market Facts December Quarter (2016).
     3. In the Revenue Legislation Amendment Bill 2016 (No. 2). 

    First published in the Capital Express.

    Read more
  • NSW Duty Amendments A sign of changing times

    NSW Stamp Duty Amendments: A sign of changing times

    Technology has changed the way we live our lives. We have the internet in our pockets, speaking with someone face-to-face in another country is merely a click away and we can order groceries on our fridge. Even the Real Estate industry is not immune to technological change. In 2014, investment worldwide in real estate start-up technology companies amounted to US $1.4 billion[1] and eConveyancing is now or will soon be live in 7 of the 8 Australian jurisdictions.

    Continuing this trend, the NSW State Government has passed the State Revenue Legislation Amendment Bill 2017 (the Bill) which has amended the Duties Act 1997 (the Act) to make it clear that a dutiable instrument includes instruments in digital form capable of being reproduced, stored and duplicated by electronic means. This means that digital instruments effecting a dutiable transaction are considered dutiable instruments under the Act and must be lodged with the Office of State Revenue for assessment of stamp duty.

    The Bill also brings about further changes to the Duties Act 1997 giving rise to or clarifying exemptions to stamp duty. These include:

    1. Nominal duty is now chargeable on a transfer to a custodian of a trustee of a Self-Managed Super Fund (SMSF) if the transfer is not in conformity with a Contract for Sale, the purchaser under the Contract is the trustee of the SMSF and ad valorem duty has been paid on the Contract.
    2. Nominal duty is chargeable on a transfer due to the change of a trustee of a trust only if the Chief Commissioner is satisfied the transfer is not part of a scheme to avoid duty by altering the beneficial interest in property.
    3. No duty is chargeable on the transfer of dutiable property to a trustee in bankruptcy of a party to a relationship following the break-up of the relationship.
    4. No duty is chargeable on the transfer of primary production land held by an SMSF where a member of the SMSF and the transferee are family members.

    The definition of associated persons under the Act has also been extended to include beneficiaries of sub-trusts, allowing the Office of State Revenue to look behind sub-trusts to determine if there are related people involved in a transaction.

    Clearly duty legislation in Australia is constantly evolving to suit changing times. Regardless of where your property transactions occur, it is important to obtain up-to-date duty advice to ensure your transaction is not subject to unnecessary or unanticipated costs.

    [1] Tech innovators aim to shale up property industry, The Financial Times (https://www.ft.com/content/e746fbb4-d87b-11e4-ba53-00144feab7de)

    Read more
  • 4 BAL Directors ranked in the 2018 edition of Best Lawyers - Australia

    4 BAL Directors ranked in the 2017 edition of Best Lawyers - Australia

    Four BAL Directors have been recognised for their legal excellence in the 2017 edition of the Australian Financial Review’s Best Lawyers Australia list. Produced by a peer review company and published by the Australian Financial Review, the list is compiled following an extensive evaluation process. The list includes more than 3000 lawyers from 330 law firms nationwide, up from more than 2850 last year.

    The directors have been successful in the following practice areas:

    • Alan Bradbury – Government Practice, Planning and Environment Law;
    • John Bradley – Leasing Law, Real Property Law;
    • Mark Love – Commercial Law, Insolvency and Reorganisation Law, and Corporate Law; and
    • John Wilson – Labour and Employment Law, Occupational Health and Safety Law.

    This is the eighth consecutive year the Alan Bradbury has been acknowledged for his expertise. Managing Legal Director John Wilson makes his fifth appearance in the list, while Mark Love and John Bradley were again recognised for their respective practices.

    John Wilson congratulated his fellow Legal Directors on their achievements.

    “A listing in Best Lawyers is a considerable honour, reflecting as it does the praise of fellow practitioners in each speciality,” he said. “For three of my colleagues and I to be included speaks highly to the calibre of our team at Bradley Allen Love.”

    Best Lawyers is the oldest and most respected peer-review publication in the legal profession. A listing in Best Lawyers is widely regarded by both clients and legal professionals as a significant honour, conferred on a lawyer by his or her peers. For more than three decades, Best Lawyers lists have earned the respect of the profession, the media, and the public, as the most reliable, unbiased source of legal referrals anywhere.

    The full list is available here.

    4 BAL Directors ranked in the 2018 edition of Best Lawyers - Australia

    Above: Alan Bradbury, Mark Love, John Wilson and John Bradley – listed in The Best Lawyers in Australia© 2017

    Read more
  • Domestic Violence Damage Limitation

    Domestic Violence Damage Limitation

    The effects of domestic violence are felt far beyond the home. What are employers obliged to do?

    Following media discussion in 2016 about comprehensively introducing paid domestic violence leave, the impacts of familial violence beyond the home – particularly in the workplace – are under scrutiny.

    Around one in six female workers has experienced or is currently experiencing domestic violence (DV). Many victims of DV experience financial risk or poverty. Financial security, such as stable employment, increases a victim’s ability to leave a violent situation, and gives them a secure financial future independent from their attacker. However, it can be difficult to maintain employment while suffering abuse and its flow-on effects.

    DV can impact employment in numerous ways: perpetrators may interrupt workplaces – giving rise to work health and safety issues; victims may need time off work in order to access support services; victims may be unable
    to concentrate at work and have performance related issues. Understandably, this can make the employment relationship volatile for both the employee and the employer.

    What employers must do

    Under the Fair Work Act 2009 employees experiencing DV, or caring for an immediate family member who is experiencing DV, have the right to request a ‘flexible working arrangement’. For example, an employee may request to start work later because they have had to move to a new suburb with poor public transport in order to escape their abuser. Employers are not obliged to agree to requests for a ‘flexible working arrangement’, provided any refusal is based on ‘reasonable business grounds’. For some organisations it would not be possible to have an employee start later because that employee normally opens the shopfront, and the business cannot afford to hire another employee to cover this duty. In general, employees do not have the right to challenge the refusal of a flexible working arrangement unless they are entitled under an enterprise agreement. However, that does not mean that an employer should feel free to refuse all requests. A request for a flexible working arrangement should open up a dialogue between employer and employee to see if they can find an arrangement that is suitable for both parties.

    Read the full article here.

    First published in HR Monthly. Written by John Wilson and Rebecca Richardson.

    Read more