News & Events

  • Public Servants: Fair Work Commission gives government a helping hand while shackling its staff

    Fair Work Commission gives government a helping hand while shackling its staff

    Public servants in dispute with their employer are unfairly outgunned.

     “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness.” So wrote Charles Dickens in 1859 in his novel A Tale of Two Cities.These words might equally have been uttered by a perplexed employment lawyer today, with the Fair Work Commission perpetuating an inconsistent approach to legal representation in disputes. The upshot for public servants is that the government gains an unfair advantage, while other participants before the commission are forced to make do without legal help.

    I first wrote about this issue earlier this year, in a column titled “Government hypocrisy on display again in the Fair Work Commission“. In response, Public Service Commissioner John Lloyd emailed me to say my article was “potentially misleading” and that the commission’s decision I had discussed was “correct”. Lloyd invited me to approach his commission “before publishing future articles about matters within the remit of this agency”. Respectfully, I have no intention of doing so – although I [and the Informant‘s editor] invite him to publish a response if he wishes.

    To recap: the Fair Work Act, which governs almost all employment arrangements in this country, prevents lawyers from appearing for parties in disputes unless they receive permission from the Fair Work Commission. The policy intent was, according to the act’s explanatory memorandum, because the commission is “intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner”.

    This rationale has strength and, while experienced lawyers are more often than not invaluable in resolving workplace disputes efficiently, I can nonetheless accept that, in certain cases, there can be merit to keeping lawyers at a distance.

    This year, the commission issued several decisions concerning when permission will be granted and the scope of exceptions to the act’s limitation. The jurisprudence has diverged considerably, to the benefit of the federal government and to the disadvantage of everyone else.

    Until recently, it was common practice for AGS lawyers to seek permission to appear. However, earlier this year, lawyers at the Attorney-General’s Department offshoot took the contrary view that, because they are government employees, they satisfy the in-house exception in the Fair Work Act. This interpretation of the AGS’s position was upheld in Gibbens v Commonwealth of Australia.

    Whatever one’s legal view of the decision, there can be little denying that it has considerably tilted the playing field in the government’s favour. Despite:

    1. the AGS acting in effect as a private law firm within government,
    2. the AGS competing with private firms to provide legal services to government, and
    3. almost all government departments having their own in-house lawyers already,

    the Fair Work Commission has permitted the AGS to bypass the considered policy judgment of the act. Given the manifold benefits that the public service already enjoys in disputes against its employees, the desirability of this development is dubious.

    While Gibbens and Woolworths involve distinct legal points, they are logically inconsistent. The former allowed more government lawyers to appear before the commission, while the latter and its progeny make it far harder for employers to be represented or otherwise receive legal aid. Much has been written about the potentially negative effects of Woolworths, while far less has been said about Gibbens. But the adverse consequences for public servants of allowing the government unfettered access to experienced legal representation in employment disputes are considerable, and deserve attention – possibility in the form of legislative clarification.

    Gibbens also presents, at least in theory, a considerable challenge for private law firms in obtaining permission to represent government clients before the commission. Why would the commission ever grant a private firm permission to represent a government agency when there are plenty of individuals experienced in workplace-relations advocacy among the hundreds of AGS lawyers who can appear as of right? This is especially the case one criterion for granting permission is that “it would be unfair not to allow the person [here, the government] to be represented because the person is unable to represent … itself effectively”.

    The issues raised above may seem trivial to some. But the level of representation involved in employment disputes, when emotions are high and jobs are on the line, requires a delicate policy decision. Until change eventuates, public servants can only hope they don’t find themselves legally outgunned before the commission. Surely that is the real access-to-justice concern here.

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

    First published in The Canberra Times.

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  • A poorly thought-out federal ICAC could be a band-aid on a bullet wound

    A poorly thought-out federal ICAC could be a band-aid on a bullet wound

    Momentum is gathering for the establishment of a federal anti-corruption commission. What structure and powers would it need to be effective? Public sector law expert John Wilson says the wrong kind of federal ICAC could be counterproductive.

    Amid numerous recent findings of corruption and misconduct by public officials, the public service and federal politicians are under increasing pressure to maintain the confidence of the public they collectively serve. It is not surprising, then, that the call for a federal anti-corruption commission (ICAC) is becoming louder and louder. The tone of an event organised by The Australia Institute earlier this year was telling – the question was no longer whether, but how.

    That does not mean there is consensus. Professor Adam Graycar told a parliamentary committee last year that the proponents of a federal ICAC were not even sure of the problems they were trying to solve, let alone how to solve them. What, then, is necessary to ensure such an institution can effectively curb corruption in the political and bureaucratic spheres?

    Three main areas of concern have been identified, which will be considered here in turn:

    1. The incompatibility of a federal ICAC with existing regulatory bodies;
    2. the likely misuse of a misconduct register to discriminate against prospective employees; and
    3. fairness and justice considerations.

    Scope of jurisdiction

    Firstly, the boundaries of the federal ICAC’s jurisdiction must be clear to ensure the definition of corruption is not brought into question. In the 2015 case of ICAC v Cunneen, NSW Deputy Senior Crown Prosecutor Margaret Cunneen was accused of perverting the course of justice. The High Court ruled that her actions did not constitute “corrupt conduct”, nor did it adversely affect the police investigators’ ability to exercise their official functions, as those terms are defined in the NSW legislation. The bench concluded that applying this narrow interpretation would allow the ICAC Act to operate as it was intended to, and avoid overtly criminal acts falling within the scope of the NSW ICAC’s investigative powers.

    However, a narrow interpretation may prove more problematic in a federal setting, where crimes such as tax evasion may not be construed as an attempt to pervert the course of justice, and would therefore not fall within reach of the federal ICAC. Establishing such an institution without causing conflict with already-existing regulatory bodies would require “a genius in legislative artistry.”

    A misconduct register

    Secondly, it has been proposed that the federal ICAC would be supplemented by a misconduct register, modelled on the one being established in South Australia. In that state, the register forms a repository for the findings of the SA ICAC, with a database on public officers who have been dismissed from public employment. The repository will also include allegations that never advanced to investigation, to ensure that records are created on those who resign before investigations commence.

    But there are concerns about misuse of such a register. Misconduct findings are administrative, not judicial decisions, and for a range of reasons many never proceed beyond the initial decision. The 2016/17 APSC Annual Report indicated that only 93 of the 223 cases brought to the Merit Protection Commissioner as a second tier of review ended up being reconsidered. It may be, therefore, that these findings are ultimately given unjustifiable weight in future employment decisions as a result of the register.

    Former Senator Zhenya Wang, prior Chair of the Select Committee into the Establishment of a National Integrity Commission, has voiced similar concerns. “A dedicated [federal ICAC] would threaten the legal rights of individuals, as well as potentially unfairly tarnish the reputation of individuals investigated, even when they are later found not to have engaged in corrupt conduct,” said Wang. Elevating the weight of an internal administrative finding to a permanent stain on someone’s record has troubling implications.

    Fairness

    Finally, the Rule of Law Institute of Australia has argued that introducing a federal ICAC may create a new system of justice without the legal safeguards entrenched in the existing one. The risk has been articulated as that of a “parallel system of justice to the traditional criminal court system initially with all the credibility of a court, but without any of the protections that have been built up around the court system over many generations.” Principles such as the presumption of innocence, the standard of proof beyond reasonable doubt and the privilege against self-incrimination may not be embedded in this new system.

    Yet none of these flaws are fatal. With proper design and a nuanced appreciation of need to balance institutional concerns with personal liberty issues, a federal ICAC can effectively address corruption and misfeasance at the Commonwealth level without unduly imposing on the rights of affected individuals. That is not to understate the challenging task facing the creators of such a body; rather, it is to accept that these concerns are real and deserve consideration, but do not represent overwhelming obstacles.

    A band-aid?

    It may be, as detractors are quick to point out, that the risk of corruption is already lowered at the federal level. There are more pre-existing mechanisms for transparency and accountability, and the spheres administered by federal public servants are potentially less susceptible to the development-related corruption exposed in NSW.

    But there are many benefits to restoring public confidence in the federal bureaucracy through a nationwide anti-corruption commission. Like the common response to climate-change deniers (what is the detriment of a cleaner planet in any event?), if politics and administration at a federal-level are indeed free from corruption, then what harm would the added-level of accountability brought by a federal ICAC do?

    Yet the creation of such an institution is attended by risks. The establishment and subsequent failure of a federal ICAC may even prove counterproductive in the fight against corruption. Unless its implementation is carefully considered and thoughtfully executed, we may end up patching a bullet wound with a band-aid.

    John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. His colleague Zoe Zhang assisted in preparing this article. 

    First published in The Mandarin.

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  • Can you disinherit an estranged child?

    Can you disinherit an estranged child?

    In every Australian State and Territory, “Family Provision” legislation exists to allow a natural child to bring a claim for provision (or further provision) from the estate of their deceased parent. At the very core of the Family Provision legislation is the recognition of a moral duty that a parent owes to their child.

    Whilst the Law recognises that a parent owes a moral duty to their child, it also recognises that the moral duty will be impacted based on the nature of the relationship between the parent and the child. This moral factor must be weighed against the Applicant child’s financial need for provision from an estate.

    But what if the relationship between the parent and child had been a strained one? Perhaps for a few years, or a few decades? What if the child or the parent had done something (or failed to do something) which caused a breakdown in the relationship? There is a vast array of case law which looks at “the character and conduct” of applicants, at “disentitling conduct” and “estrangement” between parent and child, and unfortunately, the case law can often be ad hoc and sometimes inconsistent.

    What is consistent among the case law however is that the nature of the relationship between a child and their deceased parent is always taken into account by the Court and may serve to reduce or even deny a claim for provision in circumstances that may otherwise have presented a compelling case.

    Let’s focus just on “estrangement” between a parent and their child.

    We know from the case law that the cause of the estrangement is relevant. Estrangement that is caused entirely by a deceased parent’s unreasonable conduct or beliefs alone cannot amount to disentitling conduct on the part of an Applicant child. The Court therefore engages in a forensic analysis of the conduct and attitude of the deceased judged by prevailing community standards. As we know, moral standards are always changing and what was considered reasonable 30 years ago, may not be considered reasonable today.

    Nonetheless, the cause of the estrangement is one factor. The period of estrangement is another factor – naturally, a longer period of estrangement may justify a lesser moral duty on behalf of the parent towards their child. Of course, moral duty needs to be weighed against other competing claims (e.g. the moral claim of a testator’s children may lose priority to those of the testator’s spouse (for example, the case of Temple v Cowell [2011]SASC 20).

    It should be noted however that issues of fault within family relationships are inherently complex, and often relationship breakdowns have causes that are not exclusive to one party (as recognised by Young J in Walker v Walker)

    More recently, in the case of Larkin v Leech-Larkin (judgement being delivered in October 2017), the NSW Supreme Court came across yet another case involving the estrangement between a mother and her son, Julian.

    The mother had 4 sons and had left her entire estate to her second son Lucien. Two of her other sons had not made a claim against their mother’s estate. One son however ( Julian) decided to make a claim.

    The Court recognised that Julian had a strained relationship with his mother caused predominantly by (a) Julian continuing to have a relationship with his father following his mother and father’s divorce and (b) Julian failing to have any meaningful contact with his mother over the past 40 years of her life, and no contact within the last 8 years of her life.

    The Court also recognised that the other son, Lucien, who was the sole beneficiary of his mother’s estate, had a much closer relationship. They had a shared common interest (being their property in the Blue Mountains), and the Court also found that Lucien had spent a great deal of his own wealth towards this property.

    The estate was worth approximately $680,000 and the Court ultimately dismissed the application by the estranged some Julian.

    Does this case add anything further to the case law on estrangement and moral duty (and the principles in Keep v Bourke and Andrew v Andrew)? The short answer is “not really”.

    The take-away point from this case is that we consistently see the Courts at the very least, having regard to the following:

    1. the family history and dynamic between family members, the parent and the Applicant child
    1. the nature and conduct of the Applicant child and his or her parent, and any dis-entitling conduct on part of the Applicant child;
    1. what is considered to be “prevailing community standards”; and
    1. weighing the above factors with against the applicant child’s financial need for provision from an estate.

    Please contact our Estate Planning team if you need to carefully structure your estate plan, or if you believe you have been unfairly treated in the distribution of an estate.

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  • In bed with Embedded Networks Are Embedded Networks the answer to rising utility prices?

    In bed with Embedded Networks

    Are Embedded Networks the answer to rising utility prices?  

    The costs of electricity for households in Australia rose 72% over the ten years preceding 2013. This only slightly outpaced the rising cost of gas, which rose 54% during the period.[1] Prices have only been rising since. This led to the Federal Coalition Party releasing a new energy policy and closer to home, the ACT Government passing the Utilities Legislation Amendment Bill 2017 (the Bill). The Bill aims to remove unnecessary regulation of energy utilities in the ACT. In part, the Bill aims to reduce rising energy costs by promoting the use of Embedded Networks.

    What is an Embedded Network? 

    An Embedded Network is a distribution system within a building development, typically for water, gas or electricity, connected at a parent connection point to the national or regional grid, where the delivery infrastructure to multiple users is owned, controlled and operated by a person who is not a network provider[2] and is typically not the Owners’ corporation. Operating an Embedded Network within a residential or commercial building allows the Embedded Network operator to control the provision of utility services to each unit or part of the building. The argument runs that this allows the Embedded Network operator to reduce the cost of utility services by negotiating with energy retailers for the provision of utilities to the building in bulk.

    How do these amendments affect Embedded Networks in the Territory?

    The Bill, scheduled to come into effect on 1 December 2017, creates an exemption for Embedded Networks from the Utilities Act 2000 and the Utilities (Technical Regulation) Act 2014. This means that those operating an Embedded Network will not need to obtain a licence under the Utilities Act 2000 and thus they will be exempt from compliance with the technical codes and regulations of the Utilities (Technical Regulation) Act 2014. By removing these requirements, it is now easier to establish and operate an Embedded Network in the ACT.

    Problems with Embedded Networks

    Despite the removal of some red tape, there are foreseeable problems for Developers seeking to establish an Embedded Network in new or existing Developments, as well as for Buyers or occupiers within a complex serviced by an Embedded Network. These include:

    1. The commencement of the Scheme coincides with the commencement of the Australian Energy Market Commission “rule determination” on Embedded Networks. This Rule Determination creates an additional level of regulations and obligations for those operating Embedded Networks;
    1. The Electrical Safety Act 1971 continues to apply to Embedded Networks, imposing safety standards for the installation of electrical equipment and wiring work, hence leading to certification and maintenance compliance;
    1. The ability of a Developer of a new Unit Title complex to install an Embedded Network, who must address the ongoing commitment to the Embedded Network operator in accordance with the Developer obligations under the Unit Titles (Management) Act 2011;
    1. The legislative changes do not directly cater for mixed used buildings, where different management groups may have to engage with the operator of the Embedded Network; and
    1. The management (and hence cost) of delivery of the utility through the Embedded Network will be governed through the terms of the contracts that will be offered to the Owners Corporation and to the end user, that represents a cost risk to the buyer and a disclosure risk to the seller.

    Conclusion

    Ultimately, without further change (in particular to Unit Titles and mixed use development legislation) the current legislative changes do little to resolve a number of key issues  associated with what should be an innovative way for Developers to defray construction costs or to remove the maze of legislation and regulation surrounding the establishment and delivery of Embedded Networks in the ACT. Until further change is brought about, the terms of utility supply will become and remain a critical aspect of “cost”. This highlights the good sense in securing legal advice when looking to install an Embedded Network or when purchasing in a complex with an Embedded Network. Should you require legal advice on these issues, please contact a member of our experienced Property and Real Estate team.

    [1]Both figures from: https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BriefingBook44p/EnergyPrices

    [2] National Electricity Rules Chapter 10 (Glossary).

     

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  • Workplace Policies

    If in doubt, leave it out: Making workplace policies work

    It’s only natural (for some) to try to pin things down in writing. This is particularly true for those in the people management business, and especially for those among them who are exposed to bureaucracy. That way everyone knows where they stand – right?

    And so the drafting of the HR policy manual begins. Cutting and pasting from here and there while adding their lashings of common sense, the drafters of an HR policy manual do their best to spell out all manner of things relating to work. What is the social media policy? What is the organisational policy on the Christmas shutdown? Where are the tea towels kept? Then the CEO and the Board add in a few of their pet peccadillos, and a HR policy manual is born.

    Sooner or later the original drafters leave the organisation. Eventually, the new policy person gets around to looking at the HR policy manual. They notice a gap in coverage, and add a few more policies, drawing from their previous workplace experience and their own brand of common sense. The new CEO and Board members do likewise. The cycle repeats itself.

    Within a few years, the manual has grown to 5 times its original size. The policies overlap. Inconsistencies emerge between the ‘grievance policy’, the ‘dispute resolution policy’ and the ‘Code of Conduct’ and nobody knows which policies to apply when an intra-staff spat breaks out. In fact, the CEO isn’t even sure if the staff concerned know of the existence of the updated policies, since the version published on the intranet isn’t the version that was included in the employee induction pack. Plus one of the staff members involved in the spat is out in the field and doesn’t have access to the intranet anyway.

    Does all this sound familiar?

    Policies are just that – policies. That is: a document drafted by the organisation for the benefit of that organisation. Unless a policy is serving that purpose, it should be ditched.

    For a start, this means policies should be clear, and internally consistent. If they aren’t, the organisation should change them so that they are. Make sure all your staff know where to find the policies, and make sure any updated versions are clearly published to everyone.

    Secondly, policies should not duplicate or, worse, be inconsistent with employee entitlements located elsewhere (for example, in the employee’s contract, the relevant Modern Award, the Enterprise Agreement or the Fair Work Act). This just asks for trouble. While this all sounds terribly obvious, in my practice it is routine to see (for both NFP’s and FP’s alike) HR policy manuals including substantive entitlements (to, say, redundancy and termination of employment) that are different to the entitlements in the employee’s contract or Award. This can have unintended consequences for everyone and is particularly hard to watch given it was a wholly avoidable situation in the first place.

    Thirdly, the promises (if any) made in the HR manual must be achievable. Courts will not allow clear policy statements to act as a ‘cruel hoax’ on employees.[1] Also, on a common sense level, it just upsets staff when their employer doesn’t follow its own rules. So, if the policies proclaim that the organisation ‘will investigate all grievances within 48 hours’, the organisation must be able to deliver on that – in all cases. If it can’t (and, let’s face it, who wants to be pinned down to that anyway?) then the policy should be recast in more aspirational terms. For example: ‘where appropriate, the organisation will investigate grievances within the earliest practicable timeframe.’ Workers are people, and no two people (or situations) are exactly alike. Policies must be drafted to give your organisation the ‘wiggle room’ it is going to need to respond fairly and reasonably to every workplace situation.

    Finally, give some thought to whether the policy should even exist at all by asking yourself “do we really need to write this down?” Remember, the only HR policies that should exist are the ones that are necessary. Specifically, the ones that:

    • avoid legal liability (e.g.: include policies on sexual harassment, workplace surveillance, and work safety);
    • provide necessary workplace directions to employees that, if breached, can be treated as a disciplinary issue (e.g.: regarding the use of electronic communications and social media in relation to work);
    • give information to employees about basic workplace operations (e.g.: this is how to apply for annual leave); or
    • contain statements of aspiration about the organisation (e.g.: ‘we strive to be a family friendly workplace’).

    HR policies that seek to go beyond this list need to be carefully contained and justified. While NFP’s have some compliance obligations they cannot avoid, they are not the public service. This means that if you look carefully at HR policies, you may well find that less is more.

    [1] Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784, [223].

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  • Children on site – a heightened duty of care

    Children on site – a heightened duty of care

    Risk to Children

    Young children are at higher risk of injuries as they are often incapable of having the necessary foresight of the consequences of their conduct and need to be protected from injuring themselves.

    The purpose of this paper is to show how the law of negligence operates within a school environment.

    General principles

    A child is to be judged, not by the standards of an adult, but according to what could be reasonably expected of a child of their age.

    The cases establish that the law employs a sliding scale of responsibility where the safety and well being of children is involved, sliding down according to their age:

    It is obvious that a child is less capable of taking care of its own safety than a normal adult and the younger the child the less the capacity until a stage is reached at which there is none.[1]

    The relationship between the school authority, teachers and students give rise to a duty of care of general supervision to the students concerning their physical safety.  The High Court of Australia has summarised the extent of teachers’ duty of care to students:

    Children stand in need of care and supervision and this their parents cannot effectively provide when children are attending school; instead it is those then in charge of them, their teachers, who must provide it.[2]

    The duty of the school authority to its students is a duty to ensure that reasonable care is taken of them whilst they are on school premises during hours when the school is open for attendance.  The duty was expressed by the High Court as follows:

    …the duty is not discharged by merely appointing competent teaching staff and leaving it to the staff to take appropriate steps for the care of the children.  It is a duty to ensure that reasonable steps are taken for the safety of the children, a duty the performance of which cannot be delegated.[3]

    Negligence

    To be successful in a negligence claim, it must be established, on the balance of probabilities, that:

    • a duty of care was owed to the person at the time of the injury;
    • the risk of injury was reasonably foreseeable;
    • the likelihood of the injury occurring was more than insignificant;
    • there was a breach of the duty of care or a failure to observe a reasonable standard of care; and
    • this breach or failure caused or contributed to the injury, loss or damage suffered.

    The fact that a duty of care exists does not mean that a school authority will be liable for an injury sustained by a student.  In order for the student to succeed in a negligence claim, all of these elements must be established.

    Foreseeability of risk

    To establish a duty of care, the student must prove that the school authority or teacher ought to have foreseen that the negligent act or omission of the school authority or teacher might endanger the student.  It is not enough to establish that the school authority or teacher knew or ought to have known of the potential hazard.  It must be shown that a reasonable person in the position of the school authority or teacher would have foreseen that the situation constituted a real risk to the student.

    This duty of care is not absolute and only extends to protection from harm where the risk of injury is reasonably foreseeable.  The higher the risk or potential for harm, the greater the duty imposed on the school authority and the teacher.

    In many cases where a student has failed to prove their case, the school authority or teacher have acted reasonably in the circumstances rather than the injury not being foreseeable.

    Breach of duty

    In the Australian Capital Territory for a student to establish a breach of duty of care, three elements need to be satisfied:

    • the school authority or teacher knew or ought to have known of the risk – sometimes called ‘reasonable foreseeability’;
    • the risk was not insignificant; and
    • a reasonable person in the person’s position would have taken precautions against the risk.[4]

    The court in determining the liability of a school or teacher establishes whether the risk of injury was foreseeable, what the school or teacher could have done to reduce that risk being mindful of factors such as the magnitude of the risk, the age and experience of the student, and the cost of eliminating the risk.

    Causation

    To establish negligence, you must show that the act or omission caused the injury.  The High Court has noted:

    “…it is of course necessary that the breach of duty of care must be causally related to the injury received…[students] have often failed because they have been unable to prove that the exercise of an appropriate degree of supervision would have prevented the particular injury in question.[5]

    Once the breach of duty of care has been established, it is often relatively easy to find that the breach caused the injury suffered by the student so long as the risk of injury is ‘not insignificant’.

    The student may suffer physical, psychological (nervous shock or other recognisable psychiatric disorder) injury or financial damage.

    Conclusion

    Teachers and school authorities need to recognise their legal responsibilities to students.  Whether as a teacher in the classroom, on the playing field or on a school excursion, a duty of care is owed to students.  This manifests itself as a duty to protect students from injuries that are reasonably foreseeable.  To avoid injuries that are reasonably foreseeable, teachers and school authorities should at all times maintain an acceptable standard of care given the circumstances.  The consequences for failing to meet this standard and in the event a student suffers injury, the teacher and/or school authority could face an action in negligence.

    [1] Cotton v Commissioner for Road Transport (1942) 43 SR (NSW) 66; Jordan CJ at 69

    [2] Geyer v Downs (1977) 138 CLR 91 at 93;

    [3] Commonwealth v Introvigne (1981) 150 CLR 258; at 270

    [4] Section 43, Civil Law (Wrongs) Act 2002 (ACT)

    [5] Geyer v Downs (1977) at p102

    For more information about negligence and duty of care with children on site, please contact Bill McCarthy.

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  • An unholy trinity? Religion, employees and the workplace

    An unholy trinity? Religion, employees and the workplace

    Australia is, by and large, a secular country. Australians have a constitutionally-entrenched freedom of religion, and anti-discrimination laws prohibit discrimination based on religion in a range of spheres. Yet as the furore surrounding the marriage equality survey demonstrated, religious issues sometimes intrude into the workplace. Companies large and small took vocal positions for and against marriage equality; in September a contractor in Canberra was terminated for expressing her religiously-motivated intention to vote no.

    The intersection between religion and employment is vexed. Drawing the boundaries between private and public life, determining reasonable concessions for religious observance in the workplace and exempting religious organisations from general law require delicate judicial and legislative policy judgments. This topic is also inevitably a controversial one. What to an atheist might represent a reasonable compromise between religion and employment would likely be entirely different for a devoutly religious person.

    Religion and the contract of employment

    Religion has tended to intrude on the contract of employment in two distinct contexts. Firstly, spiritual motives may prevent a contract existing due to the absence of an intention to create legal relations. Alternatively, where a contract is on foot, religious law may be incorporated within that relationship.

     Intention to create legal relations

    The mutual intention to create legal relations is an essential requirement in the formation of a contract (Australian Woollen Mills Pty Ltd v Commonwealth (1954) 92 CLR 424, 457). Traditionally, it was considered that family, religious and community settings gave rise to a presumption against the existence of such intentions.

    The Australian position was altered in the seminal case of Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 (‘Ermogenous’) in which the High Court highlighted the dangers of such presumptions. The Court held that the proper inquiry requires an ‘objective assessment of the state of affairs between the parties’ (at 105). Accordingly, ‘to say that a minister of religion serves God and those to whom he or she ministers may be right, but that is a description of the minister’s spiritual duties. It leaves open the possibility that the minister has been engaged to do this under a contract of employment’ (at 110).

    Of course, Ermogenous did not say that a religious worker necessarily has a contract of employment with the relevant religious organisation. While in that case the question was remitted to a lower court, which upheld the existence of a valid contract (2002) 223 LSJS 459), subsequent judgments have retained the view that typically no legal relationship arises in the religious context. In Redeemer Baptist School Ltd v Glossop [2006] NSWSC 1201, for example, the Supreme Court of NSW held that teachers at a particular religious school provided their services ‘as volunteers in response to a calling to serve  God’ (at [59]).

    As these varied outcomes demonstrate, whether or not an intention to create legal relations exists will be a fact-dependent inquiry. In some religious contexts, the manner of appointment and on- going relationship will support the existence of an enforceable agreement; in others it will remain in the realm of a ‘consensual compact … based on religious, spiritual and mystical ideas’ (Scandrett v Dowling (1992) 27 NSWLR 483, 513).

    Continue Reading.

    Written by John Wilson, managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law, and Kieran Pender. First published in the Law Society Journal.

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  • Court of Appeal drains Pasminco’s pipe dream

    Court of Appeal drains Pasminco’s pipe dream

    A dispute between developers and a council concerning the construction of a stormwater pipe has given the Court of Appeal another opportunity to consider how to resolve inconsistencies between development consents and construction certificates and the principles to apply when interpreting an uncertain condition of development consent.

    An uncertain condition of development consent can be a nightmare for developers, councils and prospective purchasers when trying to understand what the condition requires. While the starting point must always be the text of the condition, what do you do when the text is itself unclear? What if someone suggests that a document, not in existence at the time the consent was issued, changes the way the condition should be understood?  What effect do the plans and specifications approved by a construction certificate have on the plans approved by the development consent?

    These questions were answered recently by the Court of Appeal in Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement) [2017] NSWCA 263.

    Background facts of the case

    The dispute between (our client) Bunderra Holdings Pty Ltd (Bunderra) and Pasminco Cockle Creek Smelter Pty Ltd (subject to a Deed of Company Arrangement) (Pasminco) concerned the ultimate responsibility to construct a stormwater pipe due to an ‘awkwardly drafted condition’ of a development consent issued by Lake Macquarie City Council (the Council).

    The land the subject of the development consent, known as the Tripad site, originally formed part of a larger holding of land owned by Pasminco.  Pasminco sold the Tripad site to Bunderra after the Council had granted Pasminco development consent for a residential subdivision on the Tripad land. The Tripad site was below the Pasminco site.

    The consent required the subdivision to occur in accordance with stormwater strategies which had been prepared on behalf of Pasminco. These contemplated the construction of a pipe under a road that divided the two sites to carry stormwater from the Pasminco site through the Tripad site. A condition of consent required the applicant to demonstrate that stormwater could safely flow from the Pasminco land through the Tripad site and required plans and calculations for these stormwater controls to be submitted to the Council prior to the issue of a construction certificate for the residential subdivision.

    After the consent was issued, Pasminco submitted a further stormwater strategy to the Council.  This was said to be in response to the consent condition referred to above, and expressly required the pipe to be built as part of the Tripad site subdivision works, ie, by Bunderra.

    Bunderra obtained construction certificates from the Council for all required civil works and carried out those works.  The Council issued certificates of practical completion for all of those works. The plans approved by the construction certificates did not provide for the construction of the pipe.

    A dispute then arose between Pasminco and Bunderra over who was responsible for the construction of the pipe. This culminated in Pasminco bringing class 4 proceedings in the Land and Environment Court to restrain the Council from granting a subdivision certificate for the development until after the pipe had been constructed.

    Pasminco succeeded at first instance.  Robson J held that:

    1. Pasminco’s further stormwater strategy, which expressly provided for the construction of the pipe as part of the Tripad subdivision, was impliedly (and retrospectively) incorporated into the consent; and
    2. the issue of the construction certificate, which made no provision for the construction of the pipe, did not alter the applicant’s obligations under the development consent.

    Bunderra appealed.

    The Court of Appeal’s decision

    The Court of Appeal reversed Robson J’s decision and, in doing so, gave some important guidance on the interpretation of development consents.

    Development consents are to be construed to achieve practical results

    The Court reaffirmed the principle that development consents are to be interpreted to achieve practical results. In doing so, it pointed out that development consents are drafted by planners and not lawyers, and should therefore be given a liberal construction.

    The retrospective incorporation of the later stormwater strategy.

    The Court found that the stormwater strategy given to the Council after the development consent had been granted could not be retrospectively incorporated into the consent for the purpose of interpreting the consent conditions. In doing so, the Court reinforced the principle that, because a development consent enures for the benefit of subsequent land owners, it is of fundamental importance that people are able to determine with precision what the consent requires by reference to the text of the consent and any documents incorporated into the consent either expressly or “by necessary implication”. A document that does not come into existence until after the consent has been granted cannot be used to determine the meaning of the conditions of consent.

    The effect of the construction certificate

    The Court confirmed that the plans and specifications approved by a construction certificate prevail over the plans and specifications the subject of development consent to the extent of any inconsistency between them.

    In Bunderra’s case, the Court concluded that the construction certificates issued by the Council imposed no requirement to construct the pipe and held that these must prevail over any inconsistent provisions of the development consent plans.

    Lessons learned

    There are two key lessons to be learned from this case:

    1. A development consent must be interpreted by reference to the text of the consent itself and any documents incorporated “by necessary implication”. A document that is not in existence when a development consent is granted cannot be used to interpret the meaning of the conditions of consent.
    2. In the event of any inconsistency between development consent plans and the plans the subject of a construction certificate, the construction certificate plans will prevail to the extent of any inconsistency.

    To learn more about this case, please contact Andrew Brickhill.

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  • Employment matters: can there be a bias-free dispute?

    Employment matters: can there be a bias-free dispute?

    Bias can arise at several stages when public servants make decisions. Be wary to avoid it.

    The rule against bias has a storied history. Australian academic Simon Young recently cited the 800-year-old Magna Carta as providing a basis for the principle, which he described as having “a uniquely long pedigree in Western legal thinking”. The rule is simultaneously simple and plagued by complexity. At its essence, a decision-maker must bring a fair and open mind to any decision.

    Of course, complainants do not need to be aware of this legal history to cry bias. The law is dense, in a state of flux and can deliver harsh outcomes from time to time. It is unsurprising, then, that affected individuals often mistake a dislikeable decision for one tainted by bias. But bias does occur, and distinguishing between unsupported complaints and legitimate grievances is not always easy.

    Particularly in the employment law context, where emotions run high and personal relationships are firmly relevant, there can be a considerable risk of bias. In the public service, employment disputes typically tread a well-worn path. First, an investigator will investigate the disputed conduct. Second, a decision-maker will decide whether the allegations were substantiated and whether the wrongdoer should be sanctioned. Finally, a distressed public servant has avenues for appeal – whether internally, through industrial tribunals or in court. At all three stages, issues of bias can arise.

    Before considering each in turn, a more elaborate definition is required. The Macquarie Dictionary defines bias as “a particular tendency or inclination, especially one which prevents unprejudiced consideration of a question”. Essentially, bias occurs when a factor influences a decision where that factor has no reasonable and rational connection with the decision. If I have an irrational dislike of people with red hair, and I fire an employee because they have red hair, my decision-making would be tainted by my bias against redheads.

    But the law is concerned not just with this actual bias; it extends to what can be described as an apprehension of bias. If my dislike of red-headed people is well-known, and I sanction an employee who happens to have red hair for misconduct, there is a risk that bystanders may apprehend I was biased in my decision-making regardless of whether the sanction was in fact influenced by bias. This is because our justice system is concerned not only with justice being done, but also with justice being seen to be done.

    Investigation bias

    One of the most common complaints in employment disputes is that a workplace investigation was tainted by biased. In Francis v Patrick Stevedores Holdings, Fair Work Commission Deputy President Peter Sams found an investigation “was biased, incomplete and totally one-sided” because the investigator chose not to investigate counter-allegations of harassment. In another case, the commission found an apprehension of bias where an investigator was required to investigate his own conduct.

    However, a finding of bias in the investigation will not necessarily result in compensation for the affected employee, nor reinstatement if they have been terminated. In Dent v Halliburton Australia, the commissioner, Susan Booth, held that an investigation did not need to be “flawless” provided the ultimate decision is reasonable. This places the focus on the final decision, rather than the investigation process, when determining possible remedies in unfair dismissal cases. That said, any finding of bias in the investigation will certainly help an employee in their attempt to overturn the decision or its consequences.

    Decision-maker bias

    After the investigation, a decision-maker typically makes a finding of fact (for example, whether the allegations were proven) and determines the appropriate sanction. Here, the decision-maker can find themselves between a rock and a hard place. If they simply adopt the investigation report without independently assessing the evidence presented, their decision may be infected by bias – as was the case in Francis. But if they take the inverse approach and disagree with the (typically independent) investigator, they may also be labelled as biased and accused of harbouring ulterior motives.

    The Fair Work Commission comes to the aid of decision-makers here, with several decisions accepting that reasonable minds can differ and therefore a decision-maker is not obliged to follow an investigator’s conclusions. The test remains whether the decision was reached reasonably and without bias.

    Judicial bias

    Finally, there are typically avenues for appeal once a decision is made. Two forms of bias are sometimes alleged against courts and industrial tribunals. The first occurs where one party has communicated with the institution without informing the other party. In CFMEU v LCR Group, a union applied for Senior Deputy President Peter Richards to recuse himself on the basis of his private emails with the other party’s legal representatives. The full bench acknowledged that unilateral communications could give rise to a reasonable apprehension of bias, but held that there was no logical connection between the procedural discussions in the email chain and Richards’ ability to bring an impartial mind to the particular case. Accordingly, the application was refused.

    Allegations of bias have also arisen (unsuccessfully) where a decision-maker has previously expressed an opinion on the legal question to arise in the case. The High Court’s comments in a 1986 case are apt: “[bias] flows from a reasonable apprehension that the judge might not decide the case impartially, rather than that [they] will decide the case adversely to a party”.

    The resounding message from both cases is that proving bias against a judicial or quasi-judicial officer is extremely difficult. This is for obvious reasons: the overwhelming majority of judges are highly professional and take their responsibility of impartiality seriously. Yet this has not stopped such allegations, even from within their own ranks. In February, Fair Work Commission Vice-President Graeme Watson sensationally resigned over his concerns that the institution was biased towards employees in unfair-dismissal cases.

    Bias is a common complaint during workplace investigations and the processes that follow. When emotions run high, it can be an allegation which is easy to hurl yet difficult to substantiate. To avoid the risk of bias grounding a successful appeal, public servants should adhere to proper processes, manage conflicts of interest and utilise independent decision-makers wherever possible.

    John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. He thanks his colleagues Robert Allen and Kieran Pender for their help in preparing this article. First published in the Canberra Times.

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  • Are your trees safe

    Are your trees safe?

    A new State Environmental Planning Policy has changed the circumstances in which Council approval is required for the removal of trees in non-rural areas.

    The State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 commenced on 25 August 2017. The SEPP is part of an extensive overhaul of native vegetation clearing laws in NSW and requires a Council permit to clear any vegetation below the Biodiversity Offset Scheme threshold, to which Part 3 of the SEPP applies.  The SEPP also provides for an appeal to the Land and Environment Court against a Council’s refusal to grant such a permit.

    The SEPP applies to vegetation in ‘non-rural’ areas. Non-rural areas are defined as being land in the local government areas in metropolitan Sydney and Newcastle and land within a wide range of specified ‘urban’ zones.

    However, Part 3 of the SEPP applies only to vegetation that is declared by a development control plan to be vegetation to which the SEPP applies.  Where a development control plan doesn’t contain such a declaration, urban trees in the Council’s area may be unprotected.

    There is a savings provisions in clause 26 of the SEPP. This saves the application of vegetation removal provisions in development control plans which were in force at the time the vegetation SEPP commenced.

    But there is a catch. If a Council’s development control plan did not prescribe the vegetation to be protected under the former clause 5.9 of the Standard Instrument (and this may be more common that you might think), Part 3 of the new SEPP will simply not apply.

    The Department of Planning and Environment is developing a model development control plan. However, this is not yet available.  All Councils should therefore check that their development control plan contains a list of vegetation to be protected by the SEPP.  Any existing list prepared under the former clause 5.9 of the Standard Instrument will carry over to the SEPP but, if your development control plan doesn’t contain such a list, the trees in your urban areas may be without any legal protection.  It goes without saying that, if this is the case, your development control plan should be amended urgently to include a declaration of the vegetation to which the SEPP will apply.

    For more information, please contact us.

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  • Lodging a Caveat Against an Estate Proceed with Caution

    Lodging a Caveat Against an Estate – Proceed with Caution

    In all Australian States and Territories, a person with an interest in the estate has the ability to lodge a Caveat seeking to halt proceedings in respect of a Grant of Probate. In some jurisdictions (including the Australian Capital Territory) a Caveat can even be lodged to prevent the distribution of assets in an estate (assuming the whole estate has not been distributed).

    Lodging a Caveat can be critical in giving a Caveator (the person who lodged the Caveat) time to make further enquiries to determine and ultimately establish their grounds of challenge.

    Each State and Territory has different requirements that a Caveator must be aware of. For example, in the Australian Capital Territory, a caveat may be:

    1. against a grant of probate or letters of administration for the estate;
    2. a caveat requiring proof in solemn form of the Will of the deceased person; or
    3. a caveat against the distribution of an estate.

    All jurisdictions however (in some form or another) require that a caveator have sufficient grounds in order to lodge a valid Caveat and often, “sufficient grounds” is held to be present if the Caveator has a material interest that is affected by the application to prove the last Will of the testator (Re Seymour[1934] VLR 136 and Poulos v Pellicer [2004] NSWSC 504).

    Sufficient grounds for objection might include where the Caveator has reasonable grounds to believe:

    • there is a later Will of the Deceased;
    • that the Deceased lacked testamentary capacity at the time of execution of the Will;
    • that the Deceased executed the Will under some undue influence; or
    • where the person seeking the Grant of Representation does not have the relevant capacity or is disqualified from applying for some reason.

    In the ACT, once the Caveat is prepared and lodged with the Court, it must be served as soon as practicable (but no later than 7 days from the date of filing) on the relevant person, which could be the person applying for the Grant or the Administrator or Executor seeking to distribute the estate. The Caveat will then remain in force for 6 months unless it is set aside or withdrawn.

    Lodging a Caveat against a Grant or requiring proof of the Will in Solemn Form would often mean the propounder of the Will (the person proving the Will) has the burden of proving the validity of the Will that they are seeking a Grant be issued by the Court.

    Of course the evidence necessary to successfully challenge a Will will vary in each case. For example, challenging a Will on the basis that the testator lacked testamentary capacity could require a series of affidavits from the solicitor or the person who prepared the Will, the attesting witnesses, the testator’s treating medical specialists, expert medical witnesses, people who knew the deceased – the list could go on.

    Lodging a Caveat should not be taken lightly. A Caveat which is lodged without sufficient grounds could present a cost risk to a Caveator if it is not withdrawn. In some instances, once lodged it cannot be withdrawn without the leave of the Court, potentially presenting further costs to the Caveator or the estate.

    While the registration costs of lodging a Caveat may be relatively inexpensive (actually, it does not cost anything in the ACT), the subsequent costs implications could mean that a Caveator without sufficient grounds suffers hefty penalties for prematurely acting to prevent a Grant of Probate or Letters of Administration being issued by the court.

    The key point to remember when you are considering lodging a Caveat is to be very careful, always seek legal advice as to the strengths of your case and consider the possible implications.

    If you are considering lodging a Caveat, contact us to speak to one of our specialist estates lawyers.

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  • Electronic Signatures can they be used in the ACT - REIACT Magazine

    Electronic Signatures: can they be used in the ACT?

    With the rapid advances of technology come equally rapid changes in the way we interact and communicate with one another. Where once correspondence was sent by post and negotiations were drawn out over a number of weeks or months, it is now often resolved by email in a matter of days. The acceptance or agreement of contract terms by signature used on an electronic document (electronic signatures) is no exception and will often be considered binding.

    Though the concept of electronic signatures is not new and the preference (at least amongst the legal profession) appears to remain with ‘wet ink’ signatures, the trend and popularity towards an electronic form of execution seems to be growing.

    The legal framework for the electronic signature has been in place for some time under the Electronic Transactions Act 1999 (Cth) which has been adopted generally in the Australian Capital Territory under the Electronic Transactions Act 2001 (ACT) (Act).

    Where an electronic signature is to be used, Section 9 requires that:

    1. the method of signing identifies the person and indicates that person’s intention in relation to the document being signed;
    2. the method was reliable in the circumstances; and
    3. the recipient consents to the document being signed electronically.

    Subject to the electronic signature complying with the above, the validity of the document cannot be denied on the basis it had been signed electronically.

    It should be noted however, that the requirements set out under Section 9 are intentionally non-specific and have the obvious downfall of allowing for the method of electronic signature to be legally challenged. There is further uncertainty in that the validity or reliability of the method of electronic signature will also depend upon the type of document or the circumstances in which the document is being signed. The Explanatory Memorandum to the Act states that the intention was to resolve the Act having to be revised to take into account technological changes.  

    Caution should also be taken when signing electronically as there are specific Territory laws which may prevent this method of execution. For instance, Section 219 of the Civil Law (Property Act) 2006 (ACT)
    requires that there be at least one witness to the execution of a deed. Due to the very nature of an electronic signature (there is no witness), such provisions cannot be satisfied electronically.

    First published in the REIACT newsletter, available here. Written by Benjamin Grady.

    If you would like more information about using electronic signatures within the ACT, please contact us.

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  • Free speech denied in the High Court of Australia in Bernard Gaynor case

    Opportunity missed in the High Court on the free speech of public servants

    The High Court has refused to hear an appeal from Bernard Gaynor, who was terminated from the Army Reserves for his controversial public views, leaving public servants in an invidious position. Can they be fired for expressing their political opinion? Maybe.

    Before the High Court in August, distinguished barrister Jeremy Kirk SC addressed the elephant in the room. “No doubt there are some interesting issues over the horizon here,” he said, “interesting issues about social media and members of the public service and so forth, but this is a really extreme case.”

    The extreme case was this: Army reservist Bernard Gaynor had commenced legal proceedings after having his commission terminated for publicly expressing homophobic and Islamophobic views. He won in the Federal Court on free speech grounds, but lost in the Full Federal Court. Following Kirk’s suggestion (he appeared for the Defence Force), the High Court elected not to hear the appeal.

    For all public servants, the High Court’s failure to review the case is a great pity. While those “interesting issues” linger over the horizon, the ability of APS employees to speak their mind on political matters out-of-hours remains uncertain. With the Australian Public Service Commission continuing a crackdown on social media usage by public servants, this is no mere legal nicety but a pressing issue of public importance.

    Public servants and free speech

    Public servants are equal members of the Australian community and, ordinarily, enjoy the same rights and freedoms as any other citizen. However, the government has long sought to regulate the political expression of its employees – in 1902 a regulation was passed forbidding public servants from making any political comment. While the law has long since changed, the APS Code of Conduct is still regularly invoked against public servants who express disagreement with prevailing policy.

    The real difficulty in this context is striking the right balance. Few would argue that public servants have an unrestrained right to criticise government policy. In the GaynorHigh Court hearing, judge Patrick Keane posed a hypothetical: “If a minister of the Crown … were to make comments disparaging of the government policy and the Governor-General, on the advice of the Prime Minister, were to terminate the commission”, would that be unconstitutional?

    The answer is obviously no, and similarly a department head could hardly use the constitution as a shield against dismissal for publicly criticising his or her minister. But when a departmental receptionist expresses their views at home and out-of-hours, the pertinent considerations are entirely different. In Gaynor, the appellant was not in uniform, not on duty and not an active member of the Reserves.

    Read More.

    John Wilson is managing legal director at Bradley Allen Love and acted for the public servant plaintiff in Bennett. He acknowledges the assistance of his colleague Kieran Pender in the preparation of this article. For more information about this case, please contact us.

    Article first published in the Mandarin.

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  • Candid Camera Covert Surveillance

    Candid Camera: Covert Surveillance in the Workplace

    If covert surveillance is used in a workplace, employers had better be sure it’s done with the agreement of staff.

    It is not uncommon for organisations to keep an eye on their employees via video cameras or internet monitoring. But beware the legal pitfalls.  The vexing topic of covert surveillance recently reared its ugly head in the Fair Work Commission. Nursing home provider Bupa had commenced an investigation into an employee after a colleague secretly recorded footage allegedly showing misconduct. Bupa claimed that Shahin Tavassoli had laughed during a conversation about the death of a resident and ignored residents’ calls for assistance. The latter is a serious breach of Bupa’s duty of care.

    These allegations were put to Tavassoli who immediately resigned. Two days later, she sought to rescind her resignation, but Bupa refused. Tavassoli then commenced unfair dismissal proceedings, arguing that she had been constructively dismissed. The Fair Work Commission recently found in her favour, ordering that Tavassoli be reinstated. The decision raises three important issues, which we will consider in turn.

    Procedural fairness

    Firstly, commissioner Bernie Riordan found that Bupa’s approach to the alleged misconduct was lacking in procedural fairness. The allegations were first put to Tavassoli orally and she was not given a copy of relevant written correspondence. Nor was the video recording, the only evidence for the alleged misconduct, shown to Tavassoli. Even several months after she had commenced unfair dismissal proceedings, Bupa had still not disclosed either.

    This, the commissioner held, fell considerably short of the standards required. “I struggle to see how the principles of procedural fairness can be satisfied,” the judgment reads.

    “Employees have a right to know the case that they have to answer. Bupa had an obligation to show Tavassoli the video footage, particularly when it forms the sole foundation of the allegations. Simply making generalised accusations when specific information was available is a form of entrapment. The decision to terminate an employee should not be based on a memory test but rather the employee’s considered response to specific accusations.”

    This passage is highly instructive. Employers must put particularised allegations to employees: “you were rude to clients” should be “on 1 October, you were disrespectful to John Smith by…”. When the employer has evidence to substantiate these claims – email logs, video footage, witness statements – they must also be provided to the employee (redacting names to protect privacy, where necessary). Anything less, and an organisation may fail to satisfy the Fair Work Act’s procedural fairness requirements.

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    First published HR Monthly. Written by John Wilson, Managing Legal Director, and Kieran Pender, Law Clerk.

    If you have any questions about surveillance in the workplace, please contact us.

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  • Has the clock really stopped time?

    Planning Law Update: Has the clock really stopped?

    In certain circumstances, a request for additional information will ‘stop the clock’: that is, the time for lodging an appeal ceases to run until either the information is provided within the time specified by the Council or the applicant tells the Council that it doesn’t intend to provide the information.

    However, failing to provide the information within the time specified by the Council may not result in the clock restarting.

    In a decision handed down earlier this week, the Land and Environment Court held that a Council’s actions following the end of the period within which the additional information was required to be provided effectively amounted to an extension of time for the provision of the information: Corbett Constructions P/L v Wollondilly Shire Council [2017] NSWLEC 135 (9 October 2017).

    In that case the Council had requested a substantial amount of additional information in relation to a development application for a large medium-density residential development.  The additional information included a residential flat building architectural design verification; a new BASIX statement; a ‘phase 1’ contaminated site assessment; a flood impact assessment and various other pieces of information.  The request for information was made 10 days after the DA was lodged and therefore complied with the requirement that such requests be made within 25 days from the date of lodgement of the DA: reg 109(2). The request required that this information be made available within 28 days and indicated that if the information was not received, the application may be determined on the basis of the current information.

    The deadline for the provision of the additional information passed, and sometime later, an exchange of emails took place between the applicant and the Council in which the applicant indicated that the additional information would be provided “in the coming weeks”.  This was followed by a letter from the Council noting that the requested information had not been provided and warning that if the information was not provided within the following 7 days, it would be assumed that the applicant wished to have the DA determined on the information previously submitted. When the additional information had still not been provided, the assessing officer emailed the applicant noting that “I have previously provided until 18 October for the provision of the outstanding information” and indicating that if the information was not provided by the end of the week, the assessment report would be prepared without it.  The requested information was provided that day.

    When the DA remained undetermined some months later, the applicant lodged an appeal to the Land and Environment Court against the “deemed refusal” of the application.  The Council applied to strike out the appeal on the basis that the appeal was required to be commenced within 6 months from the date on which the application was deemed to be refused (ss. 82 and 97(1)(b)), and that this period had already expired.

    The issue for the Court was whether the Council’s request for additional information had stopped the clock only for the 28 day period specified in the Council’s letter requesting the information, or until the ultimate deadline nominated in the assessment officer’s email of 18 October.  The appeal was only within time if the clock had been stopped until 18 October.

    The Council argued that, because there had been no information provided in answer to the Council’s letter within the 28 day period specified, time began to run again once the 28 day period had expired.  This meant that the appeal had commenced more than 6 months after the date on which it was deemed to have been refused.

    The Applicant referred to the requirement in reg 54(2)(b) that the request for additional information specify a reasonable period for the provision of the additional information and argued that the 28 day period specified by the Council was, having regard to the nature of the additional information requested, unreasonable.  In fact, the Applicant described the task of providing the information to the Council in the specified timeframe as so onerous that it was “mission impossible”.  In any event, the Applicant argued that the Council had extended the time for the provision of the information, and the information had been provided prior to the expiration of the extended deadline.

    As indicated above, the Court accepted the Applicant’s argument that the Council had in fact extended the time for the provision of the additional information, the information was provided within that extended period and the clock had been stopped until that time.  In coming to this conclusion the Court found that a consent authority was not restricted to allowing a further period of time for the provision of additional information only before the expiry of any period specified in the request for further information.  Rather, it is open to the consent authority, after the expiry of that period, to re-assess the situation and provide the applicant with further time to provide the information requested.

    These findings meant that it was unnecessary for the Court to determine whether the initial 28 day period specified by the Council was reasonable in the circumstances of the development application.  Nevertheless the Court went on the make some useful comments on what the requirement for the specification of a reasonable period entails.  Those comments may be summarised as follows:

    1. The inclusion of the word “reasonable” in reg 54(1)(b) is intended to ensure that consent authorities prescribe reasonable periods within which responses are to be prepared and provided when additional information is requested.
    2. The provision of additional information will often require careful, and sometimes time consuming, preparation.
    3. To be “reasonable”, logic demands that the period specified is sufficiently workable or feasible so as to provide enough time for the information to be assembled and then provided to the consent authority.
    4. What period of time will be “reasonable” will depend on the nature of the proposed development and the varying sophistication or complexity of the analysis required to provide the further information sought.
    5. It follows that a pro forma specification of a specified period within which information must be provided will often be inappropriate.
    6. Consent authorities should carefully tailor their requests under reg 54 after making their own assessment of what time would be necessary, and therefore reasonable, to enable an applicant to respond appropriately.

    For more information about this decision, please contact us.

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  • ACT’s First Wills Rectification Case - In the Estate of Rummer

    ACT’s First Wills Rectification Case - In the Estate of Rummer

    The ACT Supreme Court has recently delivered judgement in a case involving Section 12A (Rectification) of the Wills Act 1968. This was the first time Section 12A was considered by the ACT Supreme Court, so pracititioners have finally been provided with judicial guidance on the application of the rectification provisions in the Wills Act.

    The case involved a Will executed by Mr Rummer on 20 August 2015. Mr Rummer’s Will made provision for his half-sister, a close friend and gave the residue of his estate to his friend Judith, who was also the defendant in the proceedings.

    Mr Rummer subsequently dictated some amendments to his 2015 Will to his nominated executor, who was the Plaintiff in the proceedings, while the executor was at his bedside. Handwritten amendments were made to the 2015 Will which were signed by Mr Rummer in the presence of a registered nurse. The handwritten amendments constituted a Codicil to the 2015 Will.

    Among the changes were the following:

    • The deletion of the gift to Mr Rummer’s close friend (Roy);
    • An amendment to give “most of the rest and residue” of his estate to the defendant; and
    • Inserting the words after the gift of the residue to the Defendant of “amounts as directed to my Executor to my friends Pat … and Peter…”

    Sadly, Mr Rummer died on the same day he signed the “Codicil”.

    The Plaintiff sought rectification of Codicil seeking an order that the residue clause be amended to replace the words “most of the rest and residue” with “one-half of the rest and residue”. Based on conversations that the Plaintiff had with Mr Rummer, the Plaintiff’s position was that Mr Rummer meant to give the Defendant only one-half of the residue of his estate and that the other half was meant to be divided between friends Pat and Peter.

    The task before the Court was to consider the proper construction of the following words, and to consider the application for rectification by the Plaintiff:

    • “Most of the rest and residue” and
    • “amounts as directed to my executor”.

    The Judgement 

    The Court ultimately held that:

    • notwithstanding the insertion of the words “most of the rest and residue” the testator did not intend the defendant to only receive one-half of the residue. Rather, the testator intended that the defendant should receive the rest and residue of the estate in full after payment of two monetary gifts to Pat and Peter of $35,000 each; and
    • The Court also found that the gift to Pat and Peter of “amounts as directed” failed for uncertainty, however, the testator’s intention was that Pat and Peter at least receive some money and that having regard to the submissions by the parties, the testator probable intention was that Pat and Peter receive an amount of $35,000 each.

    “Most of the rest and residue”

    With regard to the words “most of the rest and residue”, the Court stated the following:

    “I reject the plaintiff’s submission that the word ‘most’ should be construed to mean ‘half’, for a number of reasons.

    First, the express words of the Codicil dictated by the testator are ‘most’ of the residue. The ordinary meaning of that word is ‘in the greatest quantity, amount, measure, degree, or number’ (Macquarie Dictionary, 7th ed). It denotes a quantity greater than ‘more’. The plain meaning of the word is not ‘half’.

    The word ‘most’, in my view, reflects the non-legal thinking of a dying man that he needed to replace the word ‘ALL’ in the Will (that had been drafted by a solicitor) with a different word, as he was now allocating some of the money that would previously have formed part of the residue to two other people”

    “Amounts as directed to my Executor”

    With regard to the words “amounts as directed to my executor to my friends Pat….and Peter”, the Court’s reasoning was interesting.

    The Court disagreed with comments in Charles Rowlands publication “The Construction or Rectification of Wills” which state that It would not be enough that the testator’s actual or probable intentions are known exclusively from external sources”.

    The Court disagreed with the above comment, indeed drawing from external sources and saying that “had the testator known the lack of stipulation of an amount or a mechanism for calculation of an amount would have the effect of the gifts to his two friends failing for uncertainty, he would have stated a sum for each”.

    In determining the amount to award each of Pat and Peter, the Court had regard to a range of factors and principles, including the “armchair principle” rule of construction.

    This case sets the precedent for cases involving section 12A in the ACT and sheds light on the legislative of“probable intention”. It is a well written and seemingly well-reasoned judgement highlighting key principles of construction and rectification of Wills.

    If you are involved in a will dispute, or have any questions about rectification provisions, please contact us.

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  • Does Comcare allow the Commonwealth to discriminate with impunity

    Does Comcare allow the Commonwealth to discriminate with impunity?

    A legislative ambiguity may be wrongly crimping public servants’ discrimination claims.

    Before the Safety, Rehabilitation and Compensation Act (the “Comcare Act”) commenced, if a federal public servant was injured at work, they could either file a general workers’ compensation claim or sue the Commonwealth in negligence. To succeed with the latter, the employee needed to establish fault on the part of the Australian Public Service, which made proceedings invariably costly and inefficient.

    To address this mischief, Parliament passed the Comcare Act in 1988, which extinguished the right to sue the Commonwealth in negligence and replaced it with a more generous workers’ compensation scheme administered by a government authority.

    his substitution of rights is enshrined in section 44 of the act, which relevantly reads: “an action or other proceeding for damages does not lie against the Commonwealth in respect of an injury sustained by an employee in the course of their employment”. In effect, it precludes a public servant from suing the Commonwealth following a workplace injury and, in return, they receive the right to ample compensation granted by the remainder of the act. However, the section’s wording does not restrict its application to negligence claims alone, but rather any action for damages “in respect of an injury”.

    This brings us to the four federal discrimination acts (the Racial Discrimination Act, Sex Discrimination Act, Disability Discrimination Act and Age Discrimination Act), which are intended to eliminate discrimination against vulnerable members of society. They expressly apply to the Commonwealth as an employer.

    Under these discrimination acts, an aggrieved public servant can sue the Commonwealth for unlawful discrimination and, if they succeed, the court can make “any order it thinks fit”, which would generally include damages. There are two broad heads of damages: compensation for economic loss (such as lost wages) and compensation for non-economic loss, known as “general damages”. The latter takes the form of a sum of money the court determines would adequately compensate for the hurt, humiliation, distress and loss of enjoyment of life caused by the person’s experience of unlawful discrimination.

    In the landmark 2014 decision of Richardson v Oracle, the full Federal Court flexed its muscle by substantially increasing the general damages that could be awarded under the discrimination acts. Rebecca Richardson had been sexually harassed by a colleague, causing her to develop anxiety and depression. At first instance, Richardson was awarded just $18,000 in general damages; on appeal, the full Federal Court increased this to $100,000. Richardson was hailed as the start of a new era, giving teeth to discrimination law.

    However, if she had worked for the Commonwealth, the outcome of her claim might have been different: her employer might have claimed that section 44 of the Comcare Act precluded her from maintaining an action against it “in respect of an injury sustained by her in the course of her employment”.

    I have seen firsthand the Commonwealth raise this defence on several recent occasions, and it is unknown how many other claims it has sought to quash on this basis. Without a court decision or legislative clarification, the Commonwealth can continue to raise section 44 to rebuff claims of unlawful discrimination that result in injury, and for which it would otherwise be liable. This persisting uncertainty compromises public servants’ bargaining position.

    It would, in my opinion, be absurd for the Comcare Act to override the discrimination acts in this way, because it would mean public servants could only sue for unlawful discrimination if it either caused them permanent impairment (for which the Comcare Act provides an exception to section 44), or no injury at all – but not for anything in between. One can easily imagine some obscene outcomes if this interpretation was applied in practice: for instance, a public servant is raped at work by their boss and suffers a psychological injury because of it, but because they are not permanently impaired, they are precluded from recovering any compensation from the Commonwealth for their pain and suffering, despite the Commonwealth’s clear liability otherwise.

    My view is that the section 44 defence should fail, because a claim brought under the discrimination acts is a claim brought in respect of unlawful discrimination, not “in respect of injury”. The claim would be a complete cause of action whether the claimant had been harmed by way of injury or not. The injury is not the focus or subject of the claim. The claim is not one in respect of injury.

    This conclusion is supported by the Comcare Act’s second reading speech, which says section 44 was specifically directed towards common law negligence claims, and several High Court decisions to the effect that an implied repeal of another statute, particularly one that confers an individual right, requires “very strong grounds” and “clear words”, neither of which are found in the Comcare Act.

    Until the matter is resolved, the Commonwealth may unlawfully discriminate against any one of its roughly 250,000 employees, and then raise section 44 in its own defence to settle claims for much less than what they are worth. There is also a real question, in my opinion, whether reliance on such a defence is consistent with the Commonwealth’s model-litigant guidelines. Accordingly, I implore government lawyers to think carefully before arguing this defence in the future.

    Unless Parliament acts or the Commonwealth’s lawyers desist from this tactic, it will be left to a brave victim to run the matter to a court hearing and have the issue decided. But when there is a significant risk of having to pay tens of thousands of dollars to cover the Commonwealth’s costs if unsuccessful, most victims would prefer to simply settle for a much smaller sum and put the traumatic matter to rest. Who could blame them.

    First published in the Canberra Times.

    John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. He thanks his colleagues Ian Brettell and Kieran Pender, and barrister James Macken of Henry Parkes Chambers, for their help in preparing this article.

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  • Sweatworking-2017

    Sweatworking 2017

    Sweatworking – BAL’s Corporate Physical Challenge Event

    On September 21, teams from Canberra businesses came together for an evening of Sweatworking to raise money with each team registering with a minimum $250 donation to Communities@Work.

    The sixth annual Sweatworking® event saw 22 teams of 4, rotate through 10 stations completing a variety of exercises including the gruelling burpee and jump!

    Thank you to everyone for participating in our Sweatworking event last night. We cannot thank everyone enough for the donations that totalled $6,500!  We were very proud to hand over the cheque to Communities@Work.

    After the first round was completed, there was a quick break for a sausage sizzle and some networking, before the finals began. The teams that made it to the finals were

    1. Don’t Stop BALieving
    2. Netier Red
    3. Deloitte Sweat Warriors
    4. Much Fit.

    Special thank you to:

    • Tina Barac and her team from Ignite Nutrition for organising the circuit program and motivating everyone through the challenge
    • Our Charity Partner, Communities@Work for cooking the BBQ on the night
    • BAL Staff for scoring
    • AIS for an amazing venue

    Sweatworking® is an annual networking event organised by Bradley Allen Love Lawyers which pits teams from a variety of Canberra organisations against each other in a physical challenge.

    Bradley Allen Love hold the annual Sweatworking® challenge to facilitate being able to network and staying active at the same time.

    Managing Legal Director, John Wilson was very proud to present Communtiies@Work with a cheque for $6,500.  “It is really great to see all these Canberra teams come out to support Communities@Work” said John.

    Bradley Allen Love are excited about the partnership with Communities@Work, raising funds to assist them in the vital role they play in our community.

    Sweatworking cheque

    The list of organisations that participated in Sweatworking®2017 and donated are;

    • Netier
    • Addvantage Financial Freedom
    • Much More Than Money
    • RSM
    • Global School Partners
    • Colliers International
    • Xact Project Consulting
    • SPA Accounting
    • Nexia Canberra
    • LJ Hooker
    • Ernst & Young
    • Deloitte
    • Communities@Work

    OUR 2017 CHARITY PARTNER – Communities@Work

    logo

    Communities@Work is a broad-based social enterprise serving the community in the ACT and wider capital region.  Offering choice and flexibility across numerous centres and sites, we are a leading provider of children’s services. We are a Registered Training Organisation (RTO 88148) offering qualifications and professional development in early education and care.  Our surplus for purpose philosophy enables us to provide valuable community support services to seniors, people with a disability and the most vulnerable and disadvantaged members of our community.  With a rich heritage spanning 40 years, we truly understand the needs of our local community. We balance sound business acumen with empathy for those in need and adopt a client-centered approach to the delivery of services:While some community services are provided on a fee-for-service basis or funded through government contracts, our charitable programs rely on strong corporate, philanthropic and community support. We are endorsed to receive tax deductible donations.

    www.commsatwork.org

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  • Free speech denied in the High Court of Australia in Bernard Gaynor case

    Bernard Gaynor case - Free speech denied in the High Court of Australia

    Last month, Australia’s highest court refused to hear an appeal brought by conservative activist Bernard Gaynor. The reservist had his commission with the army terminated in 2013 for provocative public comments, and has since been engaged in a legal battle with the Australian Defence Force. Gaynor won in the Federal Court, lost in the Full Federal Court, and with the High Court declining special leave to appeal, the one-time Senate candidate’s litigious crusade is now over.

    Some might view this latest development in a positive light – Gaynor’s political views are deeply offensive to certain sectors of society. Prior to his termination, he tweeted: “I wouldn’t let a gay person teach my children and I am not afraid to say it”; published a press release on “Defence’s gender-bending preoccupation” and issued another entitled “Government and Defence blinded on Islam”. More recently, Gaynor lobbied to remove an ADF imam and campaigned against halal certification. His comments often evoke One Nation senator Pauline Hanson, whose position on immigration he has endorsed.

    But the High Court’s refusal to even consider an appeal from Gaynor should be deeply troubling, regardless of your political persuasion. The Full Federal Court finding that the ADF did not impermissibly encroach on Gaynor’s constitutionally protected free speech has broader ramifications. They may be well-worn to the point of cliché, but the words of English writer Evelyn Beatrice Hall are apt. “I disapprove of what you say,” she mused in 1906, “but I will defend to the death your right to say it.”

    To elucidate the nuances of this topic, several preliminary observations are necessary. Firstly, Australians do not enjoy an American-style constitutional right to free speech; we have no First Amendment. But 25 years ago, the High Court “discovered” in the Constitution an implied protection for political communication. This, the judges argued, was a necessary implication from the system of representative government established by our founding document.

    Yet such judicial activism created a shield, not a sword. The implied freedom has been consistently conceptualised as a limitation on legislative power, rather than an individually enforceable right. It was on this ground that the Full Federal Court accepted the ADF’s appeal: an error from the primary judge supposedly “led his Honour to look at [Gaynor’s] constitutional argument through an incorrect prism”.

    Finally, that political communication may be deeply offensive does not lessen the protection it is afforded. “History,” a High Court judge once wrote, “teaches that abuse and invective are an inevitable part of political discourse.”

    With these points in mind, the High Court’s disinclination to involve itself in the Gaynor case becomes all the more problematic. The comments that led to Gaynor’s termination were made while he “was not on duty, not in uniform and not doing anything connected with the ADF except criticising it and certain of its members”.

    Similarities with the public sector employment context are striking. Earlier this month the Australian Public Service Commission published new guidance on social media use by public servants, continuing its attempt to limit the participation of government employees in political debate. The Full Federal Court’s decision against Gaynor buttresses these efforts.

    In both contexts, the government is prosecuting legitimate objectives. The ADF is implementing a long-overdue process of cultural change within the Australian military, reform to which Gaynor was stridently opposed; the effectiveness of public servants depends on them acting impartially, and the APSC’s guidance is aimed at protecting that impartiality. But the dangers of silencing dissenting voices, when expressed as private opinion, are self-evident in a democratic society. Striking the right balance may not be easy, but it is certainly a task within the High Court’s remit.

    The drawbacks with the status quo are demonstrated through a simple counterfactual: what if Gaynor had instead vocally praised the ADF’s approach? He would still be an army reservist. Indeed, this is what the APSC wants of public servants – its guidance stressed “this doesn’t stop you making a positive comment on social media about your agency.” But the contest of ideas – the Miltonian concept underlying much of the philosophical grounding for free speech – becomes moot if only one side can speak. Such “content-based” restrictions on expression should be subject to exacting scrutiny.

    Whether we agree with their views or not, every member of Australian society should be able to engage in political debate without fear of retribution by the state. That includes public servants and those enlisted in the armed forces. In refusing to hear Gaynor’s appeal, the High Court has missed a significant opportunity to protect freedom of expression in this country. Our democracy is poorer for this omission.

    The last word should go to the first instance judge in this lengthy saga, Justice Robert Buchanan. ”[Gaynor’s] commission was terminated,” Buchanan concluded, “because of the publication of his private views about political matters.” Last month, the High Court failed to appreciate the deeply troubling implications of that fact.

    Written by John Wilson, managing legal director of Bradley Allen Love Lawyers and Kieran Pender, law clerk.

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  • Government hypocrisy on display again in the Fair Work Commission

    Government hypocrisy on display again in the Fair Work Commission

    A recent judgment has tipped the scales even further to the government’s advantage against public servants.

    The federal government, it has been said in the litigation context, is a “behemoth”. Public servants who take on the might of the bureaucracy in employment disputes have always faced an uphill battle. The government has practically unlimited resources and its pick of legal talent; employees often have neither. However, in the past this stark inequality was partially alleviated by a requirement in the Fair Work Act that parties must seek permission before they can be represented by lawyers.

    Following Gibbens v Commonwealth of Australia, public servants no longer have even this minor protection. In July, the Fair Work Commission rejected an appeal against a decision which gave lawyers at the Australian Government Solicitor the right to appear for the government without permission.

    The relevant legislation provides an automatic right of appearance for lawyers who are employees of a party. But, so appellant Gregory Gibbens argued, lawyers of the AGS hold a distinct role: the AGS is a government legal practice that works across departments, whereas the exception is aimed at in-house lawyers. The Full Bench disagreed: “AGS lawyers are … employees of the respondent (that is, the Commonwealth) engaged by the Secretary of the Attorney-General’s department to work in that department.” Accordingly, post-Gibbens, the AGS can appear without leave before the Fair Work Commission, while public servants require permission to have legal representation.

    While the legislative interpretation in Gibbens may be correct on a strictly textual view, it is entirely contrary to the Fair Work Act’s policy intention. The explanatory memorandum stated that the commission would “move away from formal, adversarial processes … There will also be a higher bar set for representation.” Tellingly, it continued: “Permission for representation will only be granted to parties (including the minister) where it would enable the matter to be dealt with more efficiently or fairly” (emphasis added).

    Moreover, the Gibbens precedent, which the government has since relied upon in other matters, contradicts the position departments have taken in other contexts. In a 2004 High Court case, the Department of Immigration argued that the AGS was not “the Commonwealth” for the purposes of recovering legal fees. Justice William Gummow agreed. While that judgment was made when the AGS was a Commonwealth authority, and it has since been subsumed within the Attorney General’s department, this is seemingly a distinction without a difference.

    The government’s approach to this issue continues a trend of self-serving inconsistency – some might even say hypocrisy – when it comes to workplace relations. Two other examples are instructive.

    Judges have long adopted the view that the federal government and its myriad departments form one legal entity. The High Court held in 1920 that “the Crown”, or the executive branch, “is one and indivisible”. The bench continued: “Elementary as that statement appears, it is essential to recall it, because its truth and its force have been overlooked.”

    In all but name, the government often engages in pattern bargaining during the enterprise bargaining process – seeking common terms for distinct enterprise agreements across multiple agencies – which is illegal under the Fair Work Act. This is permissible, they say, because the departments are not distinct employers but all part of the Commonwealth of Australia.

    But when a dismissed public servant pursues reinstatement in the Fair Work Commission, agencies invariably resist on the grounds that doing so would be disruptive to the workplace. If the Commonwealth is just one legal entity, why can’t the unfairly dismissed public servant be reinstated to another department? This issue has arisen in the Fair Work Commission on occasion, and there are no prizes for guessing the position adopted by the Commonwealth when the shoe is on the other foot.

    Former Canberra-based Fair Work Commissioner Barbara Deegan was frank about this contradiction in an interview with Workplace Reviewfollowing her retirement. “The bargaining framework does sit uncomfortably with the prohibition on pattern bargaining. Of course in a formal sense there is no inconsistency. The bargaining framework only applies to a single employer – the Commonwealth of Australia. But then in other contexts, when it is suggested that the Commonwealth is a single employer, the response is that under the Public Service Act each agency head is a separate employer or exercises all the powers of an employer. So there is a very good argument that the Commonwealth can’t have it both ways”.

    Another area of inconsistency involves the APS’ reach into the private lives of public servant. I have written repeatedly about the government’s overreach in this field, and controversy was sparked again last month when the Australian Public Service Commission sought to regulate public servants’ “liking” of Facebook posts.

    This expansive interpretation of the Code of Conduct’s scope was highlighted by one passage. The APSC instructed: “Your capacity to affect the reputation of your agency and the APS does not stop when you leave the office. The comments you make after hours can make people question your ability to be impartial, respectful and professional when you are at work. APS employees are required by law to uphold the APS Values at all times.” Political opinion is not the only area where the APS has sought to intrude into the private lives of employees.

    Yet when an employee injures themselves outside of the office (but still in a workplace context), the APS has sought to resile from its workers’ compensation obligations. Comcare famously fought all the way to the High Court (and won) in a case involving a public servant injured having sex while away from home on work travel. The comparison between Comcare v PVYW and free speech cases may be crude, but the point nevertheless remains: the government argues for an expansive definition of what falls within the scope of employment when it suits them, and a restrictive definition when it does not.

    Although so much might be expected from a private litigant, Australians are entitled to hold the Commonwealth to a higher standard. Indeed the Model Litigant Guidelines require the government to act “consistently in the handling of claims and litigation”. While it is not obliged to “fight with one hand behind its back in proceedings“, it should certainly not – to use Deegan’s language – be able to have it both ways.

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

    First published in the Canberra Times.

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  • Loan Agreement - a Useful Tool for Asset Protection

    Loan Agreement - a Useful Tool for Asset Protection

    A properly documented loan agreement can be an effective tool to preserve family wealth.

    It is fairly common to find loans between family members and family entities, sometimes for very substantial sums of money. Often the terms of loans between family members are undocumented which can result in complications including complications arising as a result of the following:

    1) The terms of the advance being uncertain

    Funds advanced to family members that are not documented are uncertain. Questions that may arise with undocumented loans include.

    • What are the terms of repayment;
    • When are the funds repayable;
    • Is there any interest payable.

    2) Loans being construed as a gift to the recipient

    Undocumented loans can be construed as gifts to the recipient (particularly when it comes to family members, there exists a rebuttable presumption that funds advanced constitute a gift). Funds which are construed as gifts could mean they are vulnerable to attack in the event of a relationship breakdown or insolvency.

    It should be noted also that if the advance is construed as a gift that the executors do not have an inherent power to reduce a beneficiary’s share of an estate by the amount advanced.

    3) Loans being construed as one that is payable on demand

    Undocumented loans can be construed as being payable on demand.

    Loans that are payable on demand mean (i.e. continuously recoverable at all times) mean that the cause of action arise when the money is advanced. In other words, the time for recovery for the purposes of limitations law is from the time the loan is made, not from the time the demand is made. As a result, if a loan was made more than 6 years ago (the limitation period), it may be irrecoverable.

    Loan Agreement

    A properly documented Loan Agreement can prevent these complications from arising by:

    • Ensuring that the terms of the loan are made certain between the parties
    • Ensuring that there is no doubt that the advance of funds are construed as a loan and not a gift to the recipient. This will mean that the funds do not form part of the matrimonial property for the purposes of the Family Law Act, and are not within grasp of the trustee in bankruptcy or creditors and
    • That the cause of action for recovery of the debt does not expire prematurely.

    Terms of a Properly Documented Loan Agreement

    It is not enough that there is a document in place between the parties that is signed and dated. The more the loan is presented at arm’s length, the more it is likely to be construed as a “loan”. In other words, your loan agreement should aim to contain the following terms:

    • The amount of the loan;
    • Interest rates, if any;
    • The term of the loan.
    • How the loan is to be repaid (lump sum, instalments);
    • Method of repayment (cash, direct credit, bank cheque);
    • Security for the lender if required.

    A properly documented Loan Agreement is also a useful tool to incorporate as part of a succession plan when trying to maintain equality amongst beneficiaries. To discuss adding a loan agreement to your will, please contact us.

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  • Australia by Design - Mark Love - Kim Harvey School of Dance

    Australia by Design - ACT

    Australia by Design is an architectural show that showcases the top 10 architectural statements for the year in each state and territory in Australia.

    The show is hosted by Tim Horton, a renowned Australia Architect.

    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. The episode is available to watch below.

    Australia by Design – Episode 4

    The other episodes are available to watch here.

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  • Costs, compromise, Calderbanks

    Costs, compromise, and Calderbanks: Recent developments

    “The issue of costs is central to essentially all forms of legal practice.” — GE Dal Pont.

    It is a common (though perhaps dangerous) assumption that a successful party to litigation will obtain an order that the unsuccessful party pay their costs on a party/party basis.

    This is traditionally known as ‘costs following the event’, with the ‘party/ party’ component of a costs order usually amounting to about 70 per cent of the cost a party has actually incurred.

    However, the ACT Court of Appeal’s recent decision in Cooper v Singh provides a useful reminder that the awarding of costs is an entirely discretionary power that courts may exercise as they see fit.

    It follows that the expectations of a party (and their counsel) as cost may not align with the court’s view as to how its discretion should be exercised.

    Singh also highlights the complex relationship between Calderbank offers and Offers of Compromise, the latter a device created by the Court Procedure Rules 2006 (ACT) (“the Court Rules”).

    Singh

    In Singh, the plaintiff was injured in a motor vehicle accident leading to myriad personal injuries. Prior to the matter being heard, the defendants made an offer to settle the case for $540,000 plus costs. The offer was stated to be pursuant to the principle in Calderbank v Calderbank. The effect of the Calderbank nature of the offer was that, should it not be accepted and the plaintiff fail to obtain an outcome better than $540,000, the defendants could seek an order that the plaintiff pay their costs on an indemnity basis from the date of the offer.

    Through this regime, while a plaintiff may enjoy some success in obtaining a judgment, if a defendant can demonstrate that costs were unreasonably incurred because of a plaintiff’s rejection of an offer which would have seen him or her better off overall, a Calderbank may provide costs protection for the defendant. At first instance in Singh, the plaintiff succeeded at hearing but only for $311,603 — a sum considerably less than the defendants’ Calderbank offer.

    With the offer having been made shortly before the commencement of the hearing, the defendants sought an order that their costs, essentially those of the hearing days, be paid by the plaintiff on a full indemnity basis.

    Read More.

    First published in Ethos.

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  • False Positive Employment Reference

    A false positive: employment reference checking

    The humble employment reference is an indispensable part of recruitment, but HR managers should be aware of risks.

    While the vast majority of employers take the provision of references seriously and provide fair and beneficial documents, a misleading or erroneous reference can be costly. A candidate may require
    more training than their reference suggests, or may be entirely unsuited for the position. A derogatory reference, meanwhile, can considerably harm an individual’s job prospects.
    Given the vulnerability of workers and prospective employers to inaccurate references, it is perhaps surprising that employers have few legal obligations to provide honest references.

    Duty to give a reference?

    If an employer is reluctant to provide a positive reference, they may be tempted to not provide one at all. Sometimes this will be the best option: the employer does not openly criticise a former employee, the worker is not burdened by a poor report and prospective employers are free to draw their own inferences.

    However, there are limited instances where employers may be obliged to provide a reference. In Australia, there is some judicial support for the implication of a contractual term compelling employers to provide references. If it is usual practice in an industry to provide them, and the worker is unlikely to find work without one, the courts might imply such a term. This will, however, be highly context-specific and there is certainly no blanket legal duty on employers to give references.

    Defamation and negligence

    Once a reference is given, employers may be liable under defamation law if it is inaccurate and damaging. An aggrieved worker might seek damages, or injunct the employer from making further defamatory statements. Employers can avoid liability by being honest and fair in their assessment of the worker, and only making negative statements supported by objective evidence. Provided the negative reference was not given for reasons of malice, the doctrine of qualified privilege will provide a strong defence to defamation lawsuits.

    While a prospective employer has no protection under defamation law for damagecaused to them by a false-positive reference, they may be able to sue for negligence. Employers might owe a duty of care to anyone who is likely to suffer damage as a consequence of (both negative and positive) misstatements in an employment reference, which would encompass the worker and possible future employers. This is certainly the legal position in Britain where one case saw an ex-employee successfully sue a company for negligence following the provision of a damagingly inaccurate reference.
    The legal position is unsettled in Australia – although some courts have endorsed the British approach, differences in underlying law means the question remains open. Until then, employers would be well-advised to ensure they are fair, honest and take reasonable care when providing employment references.

    Disagreeable agreement

    It is not uncommon for an employer and employee to agree upon a reference if the employment relationship breaks down and the employee exits by way of a settlement deed. These references are typically positive or neutral, and might not reflect the employer’s true sentiment. If Australian courts do establish a duty to provide accurate references, employers could be in breach of that duty by giving a false-positive, albeit agreed, reference.

    It is difficult to reconcile these competing concerns, and while the law remains unsettled, employers are in an uncomfortable position. As it is far harder to attach liability for omissions than positive statements, where possible, employers should only include objectively verifiable statements in an agreed reference.

    While several legal risks arise when organisations give employment references, they can be mostly mitigated through common sense. Provide accurate information, do not defame former employees and keep any negative comments to oral communication. If these precautions are followed, references need not be a risky business.

    John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. 

    First published in HR Monthly.

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  • Dirty washing on the line: Nasty employment disputes can generate bad publicity. How can HR help protect the organisation?

    Dirty washing on the line: Nasty employment disputes

    Nasty employment disputes can generate bad publicity. How can HR help protect the organisation?

    Newspaper readers love scandal, and employment disputes can be particularly scandalous. As the widely-publicised litigation between Channel Seven and Amber Harrison demonstrates, the airing of workplace grievances in open court can be damaging to all. Unfortunately for media-shy employers, the principle of open justice – that litigation must be open to the public – is an essential feature of the Australian judicial system.

    Gagging orders

    There are exceptions to the open justice principle. Most courts and tribunals have power to issue suppression, anonymity and pseudonym orders. For example, the Fair Work Commission can ‘de-identify’ (or hide the identity of) parties, order closed hearings, restrict attendance and prohibit the publication of evidence. These orders can be granted where the Commission is “satisfied that it is desirable to do so because of the confidential nature of any evidence” or “for any other reason”. The Federal Court and state courts have similar powers.

    Yet despite the scope of its powers, the Commission (and various courts) have been particularly hesitant to abrogate the open justice principle in the employment setting. The 2014 case of Corfield is illustrative. After an employee had sought an anti-bullying order, the employer applied to the Commission to conceal the identity of the parties. The employer submitted that “the publication of the name of the applicant and respondents in what is essentially a private and confidential matter will not be conducive to good governance of the respondent employer”.

    Given the employment relationship was ongoing, the respondent argued that a de-identification order was appropriate. Commissioner Michelle Bissett didn’t agree. The submissions of the employer were insufficient to overcome the “presumption… that a hearing will be conducted in public”. She concluded: “Mere embarrassment, distress or damage by publicity is not a sufficient basis to grant such an application.” While this is not an insurmountable hurdle, it does require the employer to demonstrate compelling grounds.

    Behind closed doors

    There are other ways to minimise the likelihood of employment disputes descending into trial by media. If an employee is exiting in a situation which may turn acrimonious, ask them to execute a Deed of Release in return for a small ex-gratia payment in addition to their termination entitlements. Not only does this prevent the employee from commencing litigation (at least in theory – some disgruntled ex-employees have been known to try suing regardless), but the Deed can also include a confidentiality provision. This restrains either party from disclosing the terms of the Deed or related circumstances, and a breach entitles the affected party to sue for damages.

    Such Deeds can include non-disparagement obligations. These often require that “the parties must not disparage each other”, with disparage defined as “any negative statement, whether written or oral, about either party”. Non-disparagement provisions are common in settlement agreements between commercial disputants, but can also be used in the employment context.
    Such clauses are no panacea. Particularly aggrieved employees may not agree to a Deed of Release, preferring to chance their arm before the Fair Work Commission or a court. And if the employee breached the confidentiality or non-disparagement provisions, (public) litigation would be required to seek damages – defeating the very point of the clause. However, in our experience once a Deed is signed and the employee has left the organisation, such steps rarely become necessary.

    Judicial luminary Michael Kirby once wrote: “An unfortunate incident of the open administration of justice, is that embarrassing, damaging and even dangerous facts occasionally come to light.”
    This sentiment may be cold comfort for human resource professionals trying to protect their organisation’s reputation. It only underscores, though, the importance of effectively managing the termination process to ensure that an employer’s dirty laundry is not aired on the front page.

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

    First published in HR Monthly.

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  • High heels and head scarves: dress codes discrimination in the workplace

    High heels and head scarves: dress codes & discrimination in the workplace

    “Discriminatory dress codes remain widespread… the existing law is not yet fully effective in protecting employees from discrimination at work.” — Report of a British House of Commons Joint Committee.

    In 1977, the British Employment Appeal Tribunal heard an unusual complaint from an aggrieved bookseller. Austicks Bookshops in Leeds had a policy that prohibited female workers from wearing trousers. One employee, Ms Schmidt, refused to comply. She was dismissed, and subsequently brought proceedings on the basis that the employer’s policy constituted sex discrimination.

    In rejecting Ms Schmidt’s claim, Justice Nicholas Phillips recognised the expansive powers of an employer to determine appropriate dress code in the workplace. “As a general proposition,” he opined, “an employer is entitled to a large measure of discretion in controlling the image of his establishment, including the appearance of staff, and especially so when, as a result of their duties, they come into contact with the public.”

    Read in 2017, the judgment in Schmidt seems rather antiquated. Certainly, the law has taken considerable steps over the intervening four decades to address such discrimination. Yet the dilemma faced by Ms Schmidt — comply with a sex-specific dress code or be dismissed — lingers to this day. Indeed, just last year professional services firm PwC found itself at the centre of a media storm after an outsourced receptionist in London was sent home for refusing to wear high heels. The furore led to a joint committee inquiry by the House of Commons, which found that clothing related
    discrimination remained widespread in Britain and had not been adequately addressed by legislation.

    There is no evidence to suggest that the situation is any better in Australia. This is not solely a matter of sex discrimination either. An employer’s ability to regulate employee dress standards, regardless of gender, remains unsettled. Questions of religious discrimination also intrude.

    In March 2017, the European Court of Justice found that it was not discriminatory to fire a Muslim employee who insisted on wearing a head scarf contrary to a workplace policy prohibiting visible signs of religious belief. These issues are interrelated. This article will begin by discussing an employer’s power to prescribe and enforce dress codes in the workplace. It will then consider possible legal remedies available to aggrieved employees, located in discrimination legislation and the Fair Work Act 2009 (Cth). Given the paucity of Australian case law in this area, reference to foreign  jurisprudence will be made where appropriate.

    Read more.

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

    First published in Ethos.

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  • We need the voices of public servants in the political debate. Their free speech is in peril

    Free speech is in peril: We need the voices of public servants in the political debate.

    Praising your agency is welcome, but not criticising it – new social media guidelines continue a troubling trend of silencing public servants’ free speech.

    Another day, another attack on the ability of public servants to participate in Australian democracy.

    On Monday the Australian Public Service Commission (APSC) released revised guidance on how federal government employees should use social media. It advised that expressing disagreement with government policy, criticising the prime minister or even liking a negative social media post could land public servants in hot water. This, the APSC contended, was the case whether or not comments were made anonymously, on a private account or after hours.

    The new guidelines, which public service commissioner John Lloyd insists are “not more restrictive than previous guidance”, represent the latest frontier in a sustained campaign of government encroachment on the free speech of public servants. In 2013, an immigration officer was fired for criticising department policy on Twitter using a pseudonym. Last year, Centrelink was forced to reinstate an employee who had been terminated for speaking out online. In the Australian Capital Territory meanwhile, the local Labor government recently attempted to restrict criticism from public servants and force them to “dob in” colleagues who disobeyed. For every case that makes the headlines, there are also many more where public servants are sanctioned behind closed doors.

    Nor is the issue straightforward. The government undoubtedly has a legitimate interest in maintaining a neutral and effective bureaucracy. The overt politicisation of the public service would have hugely deleterious consequences, from wholesale turnover following change of government to diminished societal trust in public administration.

    But that does not mean public servants should be silenced. Doing so not only disenfranchises them from proper participation in the system of Australian democracy; Australia’s limited free speech protections, it should be remembered, are predicated on the nexus between political communication and representative government. But it also deprives the broader community of important voices in political debate – public servants are often some of the most qualified contributors to policy discussion.

    The APSC’s guidance is blind to such countervailing considerations. It offers:“Criticising the work, or the administration, of your agency is almost always going to be seen as a breach of the [code of conduct].” Praise is welcome, though. “This doesn’t stop you making a positive comment on social media about your agency,” the guidelines continue, making a mockery of the stated desire for impartiality. Neutrality, it seems, does not swing both ways.

    The latest diktats from commissioner Lloyd’s office also raise intriguing legal questions. In 2013, amendments to the public service act sought to extend the code of conduct’s reach – certain obligations were professed to apply “at all times.” Monday’s guidance argued: “[A public servant’s] capacity to affect the reputation of [their] agency and the APS does not stop when [they] leave the office … APS employees are required by law to uphold the APS Values at all times.”

    Except, “at all times” may not really mean “at all times”. In 2016, Fair Work Commission vice-president Adam Hatcher dismissed arguments to that effect from Centrelink. “I reject completely,” he wrote, the proposition that the law requires public servants “to be ‘respectful’ at all times outside of working hours, including in the expression of their attitude to the government of the day.” Such a “gross intrusion into the non-working lives and rights of public servants”, Hatcher suggested, “would require express and absolutely unambiguous language.”

    Except, this is a half-truth at best. In 2003, customs officer Peter Bennett was directed not to make media comment in his capacity as a union representative where doing so would disclose information gained via his official position. Bennett refused to comply and was charged with breaching a secrecy regulation made under the public service act’s predecessor. Justice Paul Finn of the federal court invalidated the regulation on free speech grounds.

    It is a great shame the APSC overlooked this case while preparing new social media guidance for the public service. If its drafters had read the judgment carefully, they might have reflected on one particular line. “Public servants cannot be,” Finn quoted, “‘silent members of society’”.

    John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. 

    First published in The Guardian.

    Disclosure: John Wilson acted for Peter Bennett in the federal court proceedings.

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  • What is Procedural Fairness

    'I know it when I see it': what is procedural fairness?

    It can be hard to define, but procedural fairness must underlie public service employment decisions.

    Of hardcore pornography, a United States Supreme Court judge once wrote: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” Putting aside the far less titillating context, much the same can be said of procedural fairness. This amorphous concept is an essential element of employment-related decision-making in the Australian Public Service. Yet procedural fairness is incredibly difficult to define in the abstract.

    It also means different things to different people: for decision-makers, it can be a frustrating restraint on the efficient exercise of their powers, while for those affected by an adverse decision the alleged absence of procedural fairness is often a catch-all for any number of grievances. For public servants charged with ensuring procedural fairness, “I know it when I see it” is hardly sufficient.

    The concept, an offshoot of natural justice, has ancient origins. A British judge once observed that “even God himself did not pass sentence upon Adam, before he was called upon to make his defence”. For the secular jurist, an early judgment of the Australian High Court drew support from a tragedy by Roman playwright Seneca. Justice Ian Callinan similarly posited: “That no man is to be judged unheard was a precept known to the Greeks.”

    Two millennia later, it remains accepted that, absent clear statutory language to the contrary, a government decision-maker intending to exercise their power in a manner that affects rights, interests or legitimate expectations must afford procedural fairness to those affected. In the APS context, this common law duty is supplemented by statute: section 15 of the Public Service Act requires agency heads to establish code of conduct procedures that have due regard to procedural fairness.

    What, then, does this entail? To begin with, it is clear what procedural fairness is not. The High Court has repeatedly stressed that “what is required by procedural fairness is a fair hearing, not a fair outcome”. The inverse is also true: a decision might be objectively “right” but can still be invalidated via judicial review if it was made contrary to the requirements of procedural fairness. British courts have summarised that “judicial review is concerned, not with the decision, but with the decision-making process”.

    Beyond these exclusions, the concept has two primary components: the hearing rule and the bias rule. The former requires that someone who will be affected by a prospective administrative decision must be heard, whether through oral or written submissions, before the decision is made. Misconduct investigations are an obvious example: it would be grossly procedurally unfair for a decision to be issued without the alleged wrongdoer having an opportunity to make their case.

    The second element of procedural fairness demands that a decision-maker be free from bias or any apprehension of bias. This requirement derives from a central legal tenet: a person cannot be the judge in his or her own cause. The decision-maker in a code of conduct investigation could not be the complainant, nor have close ties with the accused. While actual bias is readily identifiable and rarely problematic, the apprehended bias limb often requires closer attention. Decision-makers must ensure that a reasonable bystander would not apprehend the existence of bias from the circumstances.

    One difficulty in defining procedural fairness is its context-specific nature. As High Court justice Frank Kitto mused in 1963: “The books are full of cases which illustrate … the impossibility of laying down a universally valid test … ‘the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.’ ”

    However, drawing on my experience acting for public servants in countless APS code of conduct matters, I can offer some guidance. First, procedural fairness requires that specific and particularised allegations of misconduct be put to the accused. It is insufficient to state these at a level of generality: for example, “it is alleged that, over the past 12 months, you have breached the APS code of conduct contained within the Public Service Act, by engaging in a course of conduct that constituted bullying of your colleagues”.

    Instead, the particular detail of each and every allegation must be put: “It is alleged that, on June 12, 2017, you said words to the effect of “you are stupid and useless” to John Smith, being conduct amounting to a breach of subsection 13(3) of the Public Service Act because you failed to treat everyone with respect and courtesy, and without harassment.”

    The NSW Supreme Court confirmed the need for such an approach in Etherton v Public Service Board. The allegations in that case were provided to the accused in broad terms and accompanied by hundreds of pages of evidence. Justice David Hunt scolded the decision-maker: “It is only by knowing precisely the basis upon which the board has charged the plaintiff that he can properly prepare.”

    Decision-makers are also well-advised to adopt a liberal approach to deadlines. In my experience, decision-makers often set artificial deadlines and insist that the accused reply promptly to allegations. In Etherton, the accused was given just three days to admit or deny the charges against him. Other than in the most urgent of cases, such deadlines will be procedurally unfair.

    It is apt to end with complementary quotations from two of Australia’s past chief justices. In a 2010 paper, Robert Gleeson observed: “Procedural fairness is part of our cultural heritage. It is deeply rooted in our law.”

    Murray Gleeson had previously offered a method to translate such lofty sentiment into practice. “Fairness is not an abstract concept,” he once wrote. “It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”

    Procedural unfairness might be hard to define, but judges and lawyers know it when they see it.

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

    First published in The Canberra Times.

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  • David and Goliath in the Fair Work Commission

    David and Goliath in the Fair Work Commission

    Government departments have recently gained an unfair advantage in workplace disputes, employment lawyer John Wilson explains. But the odds have always been stacked against public servants in disputes with the government.

    A recent Fair Work Commission decision has permitted Australian Government Solicitor lawyers and their state or territory counterparts to appear as of right in the industrial tribunal. This is a troubling judgment for a number of reasons, but is particularly concerning for public servants.

    Typically, parties can only be represented by a lawyer before the Commission with the approval of a Commissioner. This is because the Fair Work Act jurisdiction is intended to operate in an informal and non-adversarial manner. Until this point, lawyers for both the applicant (say an aggrieved public servant) and the respondent (the government department) would have to state their case as to why they should be allowed to represent their client. While in most cases leave to appear was granted, the Commission retained the discretion to decline representation when appropriate.

    A leg up for government departments

    Following Gibbens v Department of Immigration and Border Protection, only the employee’s lawyer has to make such arguments. At first glance this is unproblematic; few Commissioners would decline an employee representation when the government is represented by the Australian Government Solicitor. But often employees do not have the finances to procure legal representation. It is now likely that, despite the clear inequity, a public servant might be forced to battle their department and the Australian Government Solicitor. Employees already feel disadvantaged when legally sparing with their employer, let alone when they are unrepresented against the largest employer in Australia with guaranteed legal representation.

    Beyond the tangible effect on employees, taxpayers might also be burdened. The Australian Government Solicitor must bid for government work alongside private law firms, to ensure public legal work is done at competitive rates. But departments will now have an added incentive to engage their services over private options, regardless of costs differences.

    The Gibbens precedent

    Given these deleterious side effects, what motivated Commissioner Williams’ decision in Gibbens? Under the Fair Work Act, in-house lawyers – employees of the organisation before the Commission – are excused from the requirement to seek permission to appear. The Department of Immigration and Border Protection argued that, as Australian Government Solicitor lawyers are employees of the Commonwealth, they were effectively in-house counsel for the department.

    Commissioner Williams agreed. He observed: “I have considered the submissions of both parties and am satisfied that lawyers of the AGS are entitled, as of right, to represent the Respondent being the Commonwealth of Australia (Department of Immigration and Border Protection) and consequently permission from the Commission is not required.” Commissioner Williams offered no further reasons and did not consider the policy consequences of his judgment. I have already seen other departments seeking to rely on this decision.

    Whether the judgment stands is another question. While Commissioner Williams’ interpretation of the legislation is sound, the practical implications strike at the heart of the Fair Work Act’s objectives in this regard. Additionally, the relevant statutory provisions relied upon in Gibbens concerning in-house lawyers hardly represents an accurate description of the Australian Government Solicitor. That agency has to bid for government work alongside other law firms, which is rather inconsistent with being in-house. Yet the likelihood of a public servant appealing the Gibbens precedent is slim – few employees have the funds or desire to challenge such a procedural point of principle.

    To further illustrate the issue, departments do have their own in-house lawyers. The Department of Immigration and Border Protection has an extensive legal department. If this is the case, why would any department choose to engage the Australian Government Solicitor’s services over that of its in-house lawyers? Probably because such counsel are not well versed in employment law matters while the Australian Government Solicitor have specialists.

    Gibbens leaves public servants in an undesirable position. The odds have always been stacked against public servants in disputes with the government, and department are already spoilt for choice when it comes to legal representation. David against Goliath indeed.

    John Wilson is managing legal director at Bradley Allen Love. He acknowledges the assistance of his colleagues Rebecca Richardson and Kieran Pender in the preparation of this article.

    First published in the Mandarin.

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  • The most common workplace issues that never reach the courts

    The most common workplace issues that never reach the courts

    Many public sector workplace disputes never end up in court, says leading employment lawyer John Wilson.

    In the popular imagination, workplace injustice ends with triumph on the courtroom steps. Unfortunately, the reality is often less rosy. Many workplace incidents never find their way to courts or employment tribunals, for reasons ranging from cost to complexity. Even when lawyers are engaged, the vast majority of disputes settle before being heard by a judge. Here are three workplace issues that are rarely litigated.

    Unlawful discrimination

    Prior to the landmark 2014 decision in Richardson v Oracle, non-economic damages in discrimination cases (including sexual harassment) were typically limited to no more than $10,000. This provided a considerable disincentive to litigating unlawful discrimination, with legal costs often outweighing the compensation received. While Richardson has changed things for the better – six figure general damages sum are no longer uncommon – it remains that few of these cases see the light of a courtroom.

    Beyond uncertainty as to pay-out, three other factors inhibit litigation. Firstly, discrimination claims under federal law must first be taken to the Australian Human Rights Commission, which insists on a cumbersome and often ineffective conciliation process before an aggrieved individual can take court action. Secondly, discrimination laws provide no costs protection, so if the complainant is unable to make their case, they can face hundreds of thousands of dollars in legal fees; government departments rarely use cheap lawyers. Finally, there is a psychological barrier – discrimination (whether age, sex, disability, race or another attribute) can be deeply traumatic, and many victims would rather forget than relive the incident under cross-examination.

    There is, though, one positive reason why discrimination matters are not ending up in court. Employers have rightly adopted, and in admirable instances driven, the broader community’s increasing prevalent stance against all forms of discrimination. One effect of this has been stronger internal protections against discrimination through the enforcement of ‘zero tolerance’ policies. Aware of the risk of vicarious liability, many employers have been diligent in stamping out discrimination.

    Work health and safety complaints

    In every jurisdiction around Australia, employers owe a duty to keep their workplaces free from reasonably preventable risks to their employees. For example, work health and safety legislation and regulations require employers to ensure their employees are not subjected to unreasonable risks while at work. Most employers are highly responsive to employee feedback that something in the workplace is unsafe, and will quickly rectify the situation.

    But when an employer fails to act, an employee has little scope for recourse. Work health and safety legislation provides no individually-enforceable cause of action for employees; its provisions are typically enforced by the relevant regulator. This means that the right of an employee to sue an employer for breaching their workplace safety obligations typically does not arise until after the fact, once an injury has occurred.

    However, if a government department failed to act promptly to reports of workplace hazards, the Public Interest Disclosure Act provides an alternative route to agitate the matter. The whistleblower protection legislation includes within its definition of disclosable conduct: “conduct that unreasonably results in a danger to the health or safety of one or more persons”. In circumstances of “substantial and imminent danger”, disclosure to the media may even be permissible. A paper cut probably does not meet this threshold, though.

    Unfair Code of Conduct investigations

    As all public servants (should) know, their employment is subject to additional conditions found in section 13 of the Public Service Act: the APS Code of Conduct. Complaints that employees have not upheld their obligations under the Code are usually managed through internal processes, or sometimes outsourced to external investigators. Public servants often complain that these investigations are managed unfairly, with departments regularly failing to comply with their procedural fairness obligations. The allegations are not properly particularised, the decision maker is bias, the accused is not given an adequate opportunity to respond – the list of grievances is endless.

    Regrettably for aggrieved public servants, few will possess the financial resources to successfully remedy these errors through judicial review. Not only will the costs of pursing such a claim regularly enter six-figures, judicial review also operates in an ‘adverse costs’ jurisdiction. This means that if the employee loses, they will not only be liable for their own costs bill, but also that of the Commonwealth.

    Additionally, there are very limited remedies available to judicial review, with the most common being an order that the decision be remade in accordance with procedural fairness. This means the investigation will be rerun, often leading to the same conclusion anyway. One alternative route is the Merit Protection Commissioner, who can review administrative decisions made within the public service in a variety of circumstances. This avenue is without cost, and the Commissioner can recommend that the original decision be set aside, varied or remade.

    John Wilson is managing legal director at Bradley Allen Love. He acknowledges the assistance of his colleagues Robert Allen and Kieran Pender in the preparation of this article.

    First published in the Mandarin.

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  • Federal public servants beware Big Brother is watching you

    Federal public servants beware: Big Brother is watching you

    For federal public servants, sitting on your couch at night scrolling through Facebook or Twitter on your phone, “liking” posts critical of Malcolm Turnbull could spell trouble for you at work. Ditto if you send a private email criticising the government to a friend from your home computer.

    But if you want to cheer on Turnbull on social media, no worries, that’s acceptable to the government — unless your Facebook friends and Twitter followers then vent their disagreement.

    Under “new guidance” issued by the Australian Public Service Commission this week, federal government employees could be in breach of the public service code of conduct if they do not remove “nasty comments” about the ­Coalition posted by others on the employee’s Facebook page.

    In short, it is not enough for public servants to self-censor; they need to censor the views of others, even after hours.

    “The latest guidance continues a worrying trend of restricting the free speech of public servants,” says John Wilson, managing legal director of Canberra law firm, Bradley Allen Love Lawyers.

    “This issue pits two competing and compelling considerations. On one hand, the government has a very legitimate interest in maintaining an impartial and effective public service, while on the other public servants are entitled to a private life like anyone else. This latest guidance, though, overreaches to such an extent that it is of questionable constitutionality.”

    According to the commission, liking or sharing anti-government material on social media will generally be taken as an endorsement and in the same light as if the public servant created the material.

    Stating the code operates “in ­effect” to limit an individual’s right to freedom of expression, the guidance warns public servants against posting criticism anonymously or criticising government policy in an email to a friend.

    “There’s nothing to stop your friend taking a screenshot of that email, including your personal details, and sending it to other people or posting it all over the internet, Again, the breach of the code is not in their subsequent publication of your material but in your emailing that material in the first place.”

    As for “nasty comments” made by others, it says: “Doing nothing about objectionable material that someone else has posted on your page can reasonably be seen in some circumstances as your endorsement of that material. If someone does post material of this kind, it may be sensible to delete it or make it plain that you don’t agree with it or support it. Any breach of the code would not come from the person making the post. It would come from how you ­reacted to it.”

    Even if a social media account is limited to family and friends, the employee will be in breach of the code if an anti-government post was shared by a friend. “The breach of the code occurs at the time you made your post,’’ it says.

    Public comment is defined as “anything that you say in public or which ends up in public”. “This can include something you’ve said or written to one person. If your comment has an audience, or a recipient, it’s a public comment.”

    The government says a public servant’s capacity to affect the reputation of their agency and the public service “does not stop when you leave the office”. “The comments you make after hours can make people question your ability to be impartial, respectful and professional … at work. APS employees are required by law to uphold the APS values at all times.”

    University of Adelaide law professor Andrew Stewart says the warning about private emails is “legally questionable”. He is also critical of the apparent lack of “even-handedness” in the government’s approach.

    According to the guidance, criticising your employer is “almost always going to be seen as a breach of the code” but “this doesn’t stop you making a positive comment on social media about your agency, or using social media to explain the policy and services that it delivers”.

    “That’s beginning to look like you are supposed to be above politics unless you are praising us,’’ Stewart says.

    “The idea that you can’t inter­vene in political matters unless you are praising the government of the day seems to me to be highly questionable.’’

    He says he believes it is also an “overreach” legally for the government to warn employees to remove negative comments made by others. “The idea you are now starting to have to take proactive steps to censor other people’s views when there is nothing to suggest you have personally endorsed those views seems to me legally to be getting into question­able territory,’’ he says.

    “And, politically, it’s a terrible look.”

    Community and Public Sector Union national secretary Nadine Flood says it is “completely unreasonable” for a worker to face disciplinary action over a private email or an act as benign as liking a social media post.

    “Of course, there needs to be limits, but this policy goes too far,’’ she says. “The notion that the mum of a gay son who happens to work in Centrelink can’t like a Facebook post on marriage equality without endangering her job is patently absurd.” But while critical of the government’s “ham-fisted” approach, Stewart says he does not see a legal problem with public servants being warned about liking anti-Coalition posts.

    “It seems to me that if you are going to have rules that say public servants are not supposed to get involved in political matters, liking a post surely means you are endorsing what is said in that post,’’ he says. “It’s reasonable to say there’s no difference between making a statement which you are not allowed to make under the code, and you publicly endorsing someone else making a statement you are not allowed to make under the code.”

    Australian Public Service Commissioner John Lloyd says the guidance “sets out the risks public servants need to take into account when they consider what they say and how they say it’’.

    He says public servants using privacy settings on social media is an “unreliable protection”, while posting anonymously does not miraculously sanitise “objectionable material”. “That ­argument is similar to a burglar ­arguing that charges should be dismissed because he wore a balaclava,’’ he says.

    Stewart says a public servant dismissed for breaching the code of conduct can challenge the fairness of their dismissal in the Fair Work Commission.

    In March last year, a Centrelink officer who called clients “spastics” and “whingeing junkies” on social media and said he was embarrassed to work for the Department of Human Services given its “disgraceful” processing times won his job back after making an unfair dismissal claim.

    The public servant, using a user­name, “mmmdl”, contradicted the department’s social media unit over the time taken for processing youth allowance claims. The investigators appear to have trawled through thousands of posts through several years to identify the ­officer.

    But while commission vice-president Adam Hatcher found the public servant’s “seriously inappropriate” conduct was a valid reason for his sacking, he found the dismissal harsh.

    He said the penalty of dismissal was disproportionate to the gravity of the misconduct, given it bore no relationship to his actual work performance, caused no detriment to the department, was engaged in impulsively rather than deliber­ately, and consisted of a small number of widely interspersed comments across a period of years.

    “It may be accepted that, in some cases, the public expression of political views by public servants in their private time might compromise their capacity to carry out their work functions impartially and this might, consequently, contravene (the code of conduct),’’ Hatcher wrote.

    “This might happen if, for example, a departmental secretary, a policy adviser, a ministerial staff member or a senior diplomat publicly and emphatically criticised the government of the day. However, in the case of the vast majority of public servants who perform routine administrative tasks, it is difficult to envisage any circumstance in which the robust expression of political views and criticism of the government outside of work could have an impact on the performance of their ­duties.’’

    Wilson says the law in this area is unsettled. “In 2003, the Federal Court found an official secrecy regulation unconstitutional for infringing the implied freedom of political communication when it was used to gag a union representative within Customs,’’ he says.

    “On the other hand, in 2013, the Federal Circuit Court rejected the case of an immigration officer who was disciplined and lost her job for tweeting criticisms of the government’s border policy.

    “We are still awaiting a definitive judgment from the High Court on the extent to which the government can intrude into the private lives of public servants and limit their free speech.”

    Lloyd says termination of a public servant for misuse of social media would be rare.

    Asked whether the guidance would require public servants to not like social media posts opposing the government’s same-sex marriage postal vote process, or whether employees should remove “nasty comments” about it from their social media platforms, Lloyd says: “Public servants should apply the principles of the social media guidance to this issue. All public servants should exercise judgment and discretion when commenting publicly on same-sex marriage. Like all Australians, public servants should engage with this issue respectfully and with courtesy. The appropriateness of specific social media activities will depend on the context in which they occur.”

    Flood says his response is a “non-answer”, saying Lloyd is seeking to use the guidance to “scare people into not exercising the right they have to engage on social media and in public debate’’.

    “You don’t have to actually act to enforce the guidance to have that chilling effect,’’ she says.

    John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. 

    First published in The Australian.

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  • APS employees caught in AGSVA security clearances bind

    APS employees caught in AGSVA security clearances bind

    In the age of terror, rights and freedoms are being inexorably eroded in the name of national security. In April, the federal government’s data retention laws came into effect, compelling telecommunication companies and internet service providers to retain metadata on their customers’ usage for two years.

    Just last month, Prime Minister Malcolm Turnbull announced the government’s intention to enact legislation that would oblige Facebook and WhatsApp to give Australian security agencies access to encrypted messages. Together with the extension of the military’s power to intervene in domestic terrorist incidents, and the contemporaneous transfer of several security agencies to the Immigration Minister’s portfolio, these events continue the trend away from government transparency in the name of public protection.

    Agencies can bandy about the term ‘national security’ to circumvent many procedural fairness requirements, and this is perhaps no more salient for public servants than in relation to security clearances. To be engaged by the APS, it is often a requirement that one holds a security clearance, or is able to obtain one within a reasonable time. Security clearances comprise four classifications, from lowest to highest clearance: baseline (protected), negative vetting levels 1 (secret) and 2 (top secret), and positive vetting (all).

    The Australian Government Security Vetting Agency is responsible for reviewing security clearance applications, vetting individuals and granting security clearances for workers in all APS departments other than in certain agencies which conduct their own. The application process is invasive and protracted, the more so the higher the classification applied for. Benchmark timeframes range from one month for baseline to six months for positive vetting.

    To obtain a security clearance, an individual also needs to be sponsored by an agency, which causes headaches for those trying to break into the APS without one. The Australian Public Service Commissioner has stated that “potential candidates should not be excluded from applying for a vacancy in the APS on the basis that they do not hold a security clearance”, to ensure that “all eligible members of the community are given reasonable opportunity to apply”. However, this has not prevented agencies from requiring a current security clearance when advertising for vacancies.

    Perhaps the more vexing question concerns the dearth of options available to public servants or prospective public servants in the event of an adverse security clearance decision. As a security clearance file contains personal information, an individual is entitled to access its contents under the Privacy Act and Freedom of Information Act. However, any request for disclosure of such material is subject to exceptions, including one exemption that precludes the release of documents that “would, or could reasonably be expected to, cause damage to the security of the Commonwealth”.

    This provision has been tested in a number of cases, and unfortunately for those who have recently had security clearances denied or revoked, both the Office of the Australian Information Commissioner (which decides the matter at first instance) and the Administrative Appeals Tribunal (the first-tier appellate body) have fallen down strongly against disclosure.

    Their reasoning is that documents which constitute the security clearance material would almost always reveal the nature of the tests administered, the questions asked of referees and the methods used by the AGSVA to gather information about the clearance subject. This, in turn, would disclose the kinds of characteristics that are relevant to assessing suitability for clearance, which people with devious machinations contrary to the “national interest” could then use to subvert the vetting process. If the vetting process was compromised and clearances were inadvertently granted to undesirables, the Commonwealth’s ability to protect sensitive information would be diminished. And then if sensitive information were to end up in the wrong hands, it could reasonably be expected to cause damage to the security of the Commonwealth. The logic is sound.

    But what is the ‘security of the Commonwealth’? The legislation defines it as “matters relating to the detection, prevention or suppression of activities, whether within Australia or outside Australia, subversive of, or hostile to, the interests of the Commonwealth or of any country allied or associated with the Commonwealth”. In other words, it is anything that damages the Commonwealth’s interests. Those interests are ever-changing and lack precise definition.

    This leaves career APS employees in an unfortunate position. If the AGSVA comes across adverse information about them and cancels their security clearance as a result, it is very unlikely that they will ever be able to find out what was said about them, or by whom. Under section 33 of the Public Service Act a public servant can seek primary review of the decision to cancel the security clearance, although the utility of that process is debatable – agencies rarely seem willing to override their own decisions, especially those shrouded in a thick cloud of mystique.

    The only recourse remaining is to commence proceedings in the Federal Court of Australia, for either disclosure of the documents under the Freedom of Information Act, or judicial review of the clearance decision under the Administrative Decision (Judicial Review) Act. Yet one could understand the hesitation in staking tens of thousands of dollars on the chance to have a decision remade on the basis of unseen documents.

    The better alternative would be for the Privacy Commissioner and the AAT to be braver about releasing material that is not likely to reveal much about the AGSVA’s processes – surely a great deal of the presumptive harm could be avoided through the prudent use of redaction. As it stands, a person’s APS career can be easily destroyed by a scurrilous antagonist, whose identity remains undisclosed. Does the affected individual not deserve some protection?

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

    First published in The Canberra Times.

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  • Making reasonable adjustments for employees with a disability

    Making reasonable adjustments for disabled employees

    Effectively managing public servants with a disability is not easy, but managers have legal obligations to properly accommodate such employees, says employment lawyer John Wilson.

    Discrimination against disabled workers continues to occur at a disheartening frequency, causing undue harm to society’s more vulnerable and depriving the workforce of valuable human capital. Most cases emerge as a result of management’s inadequate understanding of their obligations under the Commonwealth Disability Discrimination Act 1992, which applies to public and private employers across Australia.

    The object of the DDA is to promote equality and eliminate discrimination on the ground of disability. Proper compliance with its provisions will allow all parties to reap the benefits of productive employment, while avoiding inevitably Pyrrhic litigation.

    Reasonable adjustments

    In the employment context, the central obligation under the DDA is that an employer must make all reasonable adjustments to ensure that their employees with disabilities can carry out the inherent requirements of their job. They must make those adjustments up to the point that it would cause them unjustifiable hardship — a high bar. If, once the employer has made those adjustments, the employee still cannot perform the inherent requirements of their job, only then can the employer “lawfully discriminate” against them because of their disability by, for instance, sending them on leave without pay or terminating their employment. These obligations also apply to prospective employees.

    To determine the point at which the hardship caused by the reasonable adjustments becomes “unjustifiable”, all relevant circumstances must be taken into account. For guidance, the DDA sets out a list of non-exhaustive factors, including the costs of making the adjustments and the financial circumstances of the employer.

    It is difficult to conceive of circumstances where an employer with the resources of the federal government could successfully argue that a non-fanciful adjustment would cause it unjustifiable hardship. That is not to say such circumstances would not exist where some inherent characteristic of the disability would prevent the person from carrying out their job. Where managers are faced with a situation involving an employee with a disability that may affect their performance at work, the preferred approach would be to: 1) determine what the “inherent requirements” are of the pre-adjusted position; and then 2) look to the adjustments that could be made to permit the employee to perform them.

    Inherent requirements

    The case law provides colourful illustrations of what constitute the “inherent requirements” — or essential duties — of a position: it is an inherent requirement for a worker at a pharmaceutical plant to have a tolerance to penicillin; it is an inherent requirement for a pilot to be under the age of 60 (most countries prohibit older individuals from flying in their airspace); and it is an inherent requirement for a soldier to be able to bleed without the risk of infecting their comrades with HIV. In each of these cases, the courts held in favour of the employer, where even if reasonable adjustments were made to the point of imposing unjustifiable hardship, the employee would nevertheless be unable to fulfil those inherent requirements, and so each was lawfully dismissed on that basis.

    It is easy to envisage more basic examples of inherent requirements that could be fulfilled through making reasonable adjustments. If an employee’s medical condition causes them to fatigue, a reasonable adjustment could be to reduce their working hours. If an employee’s anxiety is triggered by a particular supervisor, a reasonable adjustment could be to change their reporting lines. If an employee’s disability makes their commute to the workplace burdensome, a reasonable adjustment could be to relocate them to a more accessible office. In each example, if the employer was to refuse such adjustments, they would have unlawfully discriminated against the employee, unless they were able to establish that the adjustments would impose on them unjustifiable hardship.

    Since 2001, the number of working age individuals on disability support for psychiatric conditions has increased by about 50%, making these issues more salient than ever. They often arise in the context of an employee’s apparent under-performance — invariably sensitive situations that require a delicate balance between protecting the well-being of the employee and maintaining the productivity of the enterprise. If the under-performance may be related to the disability, the matter will be best dealt with at first instance through a medical assessment of the individual’s fitness for duty. The medical assessor, upon request, can provide important guidance on what (if any) reasonable adjustments should be made.

    Taking such steps proactively may allow employers to avoid situations such as in Huntley v Department of Police and Justice (Corrective Services NSW), where the employer failed to turn its mind to both the inherent requirements of the position, and the reasonable adjustments that could be made. The court awarded the employee $180,000 in damages, plus interest. Even leaving monetary factors to one side, it is incumbent on all, and particularly APS employees, whose values are enshrined in a statute of their own, to remain cognisant of the heavier hardships borne by others.

    John Wilson is managing legal director at Bradley Allen Love. He acknowledges the assistance of his colleagues Ian Brettell and Kieran Pender in the preparation of this article.

    First published in the Mandarin.

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  • Queensland Statutory Will Application Dismissed – Re CGB [2017] QSC 128

    Queensland Statutory Will Application Dismissed

    Will Application Dismissed – Re CGB [2017] QSC 128

    Last week the Supreme Court of Queensland gave its reasons for dismissing an application for a Statutory Will in a $17.3 million dollar estate. The judgement can be found here.

    The proposed testator (referred to in the judgement as “CGB”) was based in the Gold Coast area. To preserve the privacy of those involved in the case, the judgement was handed down in de-identified form.

    CGB was aged 83 and had been a quadriplegic since he was 40. He had conducted business from his home in Broadbeach before he was moved into an aged care facility in Robina. He had never been married, had two children and an estate worth $17.3 million. Interestingly, he had only recently made contact with his two children in the last 4 years.

    The Courts dismissal of the application means that unless an appeal is brought, or a new application is made (and held to be successful), the proposed testator’s two children are set to inherit their father’s estate on intestacy.

    The Application

    The application for the Statutory Will was initially bought by the proposed testator’s accountant, who later discontinued proceedings due to a potential conflict of interest. A litigation guardian was subsequently appointed.

    The draft Will was proposed included a number of legacies to certain persons (including his children and a charity, namely, the Spinal Research Institution Ltd).

    During the trial, the Court heard evidence from a number of persons including:

    • his children;
    • carers;
    • his solicitor from some years ago;
    • his brother;
    • his accountant;
    • his assistant and driver; and
    • his mortgage broker

    The reasons for the Court’s judgement 

    The Court was required to examine whether the proposed Will “…is or may be a Will….that the person would make if the person were to have testamentary capacity” (s 24(d) of Succession Act 1981).

    The Court distinguished the Queensland Succession Act 1984 from the NSW Succession Act 2006 which requires that the proposed Will “is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity” (s22(b) Succession Act 2006).

    The Court stated that in the Queensland legislation, the use of the word “may” “suggests a lower evidential base to satisfy the test”(at 105).

    The Court was influenced by the fact that in the proposed testator had twice instructed lawyers about drafting a Will. In both instances, his lawyers stated that it was difficult for the proposed testator to commit to instructions.

    Ultimately, the Court was not convinced the proposed Will was one that the proposed testator would have made had he had testamentary capacity. The Court referred to the case of Re Fenwick (which is the leading case in NSW on Statutory Wills) stating that that Court should not simply presume that the proposed testator did not wish to die intestate. If the Court believes that the testator didn’t propose to make a Will at all, then the provisions of clause 24 (d) are not satisfied.

    The Court held that the proposed testator was indifferent to dying intestate. The Court commented that he intended to make a Will at some point, and took steps to consult a solicitor, but that he was  “ambivalent about whether he did make one or died intestate” (at 141).

    The Court also looked at the fact that eligible applicants would be entitled to bring Family Provision Applications if they were left without adequate provision on the proposed testator’s death.

    The judgement is a lengthy one, and the application was possibly prejudiced by the terms of the proposed Will (specifically, the number of legacies contained in the proposed Will). Even though the application failed, the Court ultimately ordered that all parties’ costs in the proceedings be paid out of the proposed testators on an indemnity basis, which was quite a generous order.

    If you need advice about your will or are involved in a will application, please contact our Estate Planning team to for more information.

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  • contract

    Is it a done deal?

    When does pre-settlement correspondence constitute a binding agreement?

    A recent New South Wales Court of Appeal case, Feldman v GNM Australia Ltd,[1] considered whether correspondence between parties, prior to the execution of a formal settlement deed constitutes a binding agreement.

    The case concerned defamation proceedings brought by Rabbi Feldman against GNM Australia Pty Limited (GNM), the publisher of the Guardian newspaper.

    In February 2015, a number of articles were published on the Guardian’s website about Feldman and evidence he gave to the Royal Commission into Institutional Responses to Child Sexual Abuse. Feldman served a concerns notice on GNM pursuant to section 14(2) of the Defamation Act 2005 (NSW) (Concerns Notice). In response, GNM through its solicitors sent an email offering to remove the articles from its website and publish a statement made by Feldman, if Feldman agreed to release GNM of all liability. The email stated that “[a]n agreement reflecting the above would be documented in a Deed of Release which would also include obligations of confidentiality”.

    Subsequent correspondence passed between the parties. On 30 April 2015, GNM’s solicitors confirmed GNM’s acceptance of settlement terms outlined in the parties’ correspondence in an email attaching “a draft deed of release documenting the parties agreed terms”. Neither GNM nor Feldman executed any settlement deed. Further correspondence between the parties ensued, largely relating to the confidentiality requirements under the agreement.

    On 7 July 2015, Feldman’s solicitors wrote that their client had withdrawn “his offer to settle the matter”. Feldman subsequently commenced defamation proceedings against GNM and the author of the articles. GNM sought a permanent stay of proceedings, contending that the parties had a concluded settlement agreement as at 30 April 2015. The primary judge, McCallum J found in favour of GNM.

    Feldman sought leave to appeal. The key questions answered on appeal were whether:

    1. there was a binding agreement between the parties as at 30 April 2015; and
    2. a solicitor has ostensible authority (also called apparent authority) to bind a client to a contract where litigation is not on foot.

    Did the email correspondence constitute a binding agreement?

    A contract will fail for incompleteness if an essential or important term is not agreed.[2] Feldman submitted that as at 30 April 2015, the parties did not have a binding agreement because the following terms were incomplete:

    1. Time frame: The correspondence did not specify any timeframe for the performance of the obligations. This contrasted with the terms of the draft deed which detailed when specific steps had to be completed. GNM argued that a Court could and would imply reasonable time frames.
    2. Confidentiality obligations: No terms had been agreed as to the obligations of confidentiality. GNM argued that the nature of the correspondence and the generic confidentiality clause in the draft deed indicated that the obligation of confidentiality was not considered by the parties to be essential. Further, GNM submitted that the confidentiality obligations were not part of the agreement as at 30 April 2015, but were an “optional extra”, to be agreed on later.

    Generally, where negotiating parties decide on terms of a contractual nature and agree that the subject of their negotiation is to be dealt with in a formal contract, the agreement will fall into one of the following four categories:

    1. First Category: the parties decide on all the terms in their agreement and intend to be immediately bound, but also intend to have the terms restated in a form which will be more complete or precise, but of the same effect.
    2. Second Category: the parties agree on all the terms of their arrangement, they intend no departure from these terms, but performance of one or more terms is conditional upon a formal contract being executed.
    3. Third Category: the parties do not intend to be bound unless and until a formal contract has been executed.[3]
    4. Fourth Category: the parties are content to be bound immediately and exclusively by the terms which they have agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms.[4]

    In Feldman, Beazley P highlighted that the above categories “are neither strict nor prescriptive. Nor are they exclusive nor necessarily exhaustive. Rather, they describe circumstances in which a finally binding contract may or may not have come into existence.”[5]

    GNM submitted that the contract between the parties as at 30 April 2015 fell into the First Category or Fourth Category.

    The Court held:

    1. There was nothing in the correspondence stating expressly, or indicating that the parties intended to be bound immediately if the terms offered were accepted (First Category). Nor did the communications evince an intention to be immediately bound by some of the terms specified in the emails and to then have a substitute contract with additional agreed terms (Fourth Category).
    2. GNM’s reliance on the First Category was inconsistent with its argument that a reasonable time would be implied for the performance of obligations. The absence of any confidentiality obligations in the alleged agreement further supported this. Objectively viewed, the correspondence made it apparent that the parties intended their agreement to contain a confidentiality clause. That the obligations of confidentiality were to be contained in the proposed deed indicated the parties intended to be bound to the agreement only after the deed was finalised and executed. The significance of obligations of confidentiality were further supported by the commercial context of the negotiations.
    3.  For essentially the same reasons, the Court held that the circumstances did not fall within the Fourth Category.
    4. Conduct after the date of an alleged agreement can inform whether a contract has been formed.[6] In Feldman, the nature of the subsequent correspondence and the failure of GNM to take steps to implement the agreement indicated that the parties did not believe they were already bound.

    In summary, the email correspondence did not constitute a binding agreement.

    Do solicitors have ostensible authority to bind a client to a contract where litigation is not on foot?

    Determining whether or not a person has ostensible authority usually involves an inference based on a representation made by the principal (in this case the client) that the agent (in this case the solicitor) has authority to contract within the ambit or scope of the ‘apparent authority’.[7]

    As a general rule, solicitors do not have ostensible authority to bind their clients to contracts. An exception to this rule is in the context of litigation. In the context of litigation, a legal practitioner has ostensible authority to bind their client to a contract provided that the contract “actually and genuinely relates to the litigation”.[8]

    In this case, a majority of the Court held that Feldman’s solicitors did not have ostensible authority to bind their client to a contract. Three key factors informed this decision:

    1. Feldman had not made any representation that his solicitors had authority to enter into a binding agreement on his behalf.
    2. The concerns notice made it clear that if Feldman’s demands were not met, legal proceedings would be commenced. The agreement was not ‘in the context of litigation’.
    3. The correspondence between the parties’ respective solicitors indicated that it was Feldman himself who would enter into the deed. For example, the email of 30 April 2015 from GNM’s solicitors stated “[c]ould you please let me know if your client has any comments” and asked that, if not, arrangements be made for Feldman to sign the deed.

    Feldman has since been cited with approval by:

    1. the Victorian Court of Appeal in Nurisvan Investment Ltd v Anyoption Holdings[9] handed down on 16 June 2017; and
    2. the Supreme Court of Western Australia in Marindi Metals Ltd v Kidman Resources Ltd[10] handed down on 7 July 2017.

    Key Points

    1. The question of whether parties intend to bind themselves to a contract is determined objectively, having regard to the intention conveyed in the language used by the parties.[11]
    1. If you are negotiating a settlement agreement and wish to be bound immediately upon an offer being accepted, it is best practice to:
    • expressly state that this is your intention;
    • ensure that both parties agree on all important terms; and
    • actively take steps to implement the agreement after the agreement has been reached.
    1. If you do not wish to be bound immediately upon agreement of terms in the absence of a written contract, expressly state (ideally in writing) that this is your intention.
    1. If you do not hold your solicitors out to have authority to bind you to a contract and no litigation is on foot, as a general rule, your solicitors will not have ostensible authority to enter into a contract on your behalf.
    [1] [2017] NSWCA 107.
    [2] J W Carter, Contract Law in Australia (LexisNexis, 6th ed, 2013) 91 [4-01].
    [3] Masters v Cameron (1954) 91 CLR 353, 360 (Dixon CJ, Mc Tiernan and Kitto JJ).
    [4] Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622, 317; Sinclair, Scott & Co v Naughton (1929) 43 CLR 310, 317 (Knox CJ, Rich and Dixon JJ).
    [5] Feldman v GNM Australia Ltd [2017] NSWCA 107, [68] (Beazley P).
    [6] See eg, Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540, 547-548 (Gleeson CJ, Hope and Mahoney JJA agreeing).
    [7] Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480, [503].
    [8] Lucke v Cleary (2011) 111 SASR 134, [62].
    [9] [2017] VSCA 141, [77], [103], [106], [109].
    [10] [2017] WASC 189, [60] – [62].
    [11] Masters v Cameron (1954) 91 CLR 353, 362.
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  • Indeed, sign away: do you need a deed to seal the deal?

    Do you need a deed to seal the deal?

    What is a deed of settlement?

    A deed is a special type of contract. It sets out the legal obligations that the parties agree to be bound by; in short, what the parties can and cannot do to finalise a dispute (of any kind) and/or ensure a future dispute does not arise. A deed of settlement is used to bring an end to a litigious matter or current court proceedings on clearly defined terms. A deed of release is often used in an employment context to ensure the parties’ rights and obligations are recorded in a document.

    One of the key differences between a normal contract or agreement and a deed is the issue of consideration. Consideration is an essential element in a contract. It means something for something, and is variously defined as “the price for which the promise of the other is bought[1] or “a price in return for the promisor’s promise or a quid pro quo. The price can be in the form of an act, forbearance of promise.[2] It can include the act of performing a term or terms of an agreement in the reliance or expectation of all other terms being satisfied. Consideration is not required for a deed. This is because a deed is intended to record the parties’ solemn intentions to be bound by its terms and that in itself is sufficient.

    Some basic similarities with contracts will still be applied, especially in relation to construing its terms. A court will usually interpret the deed using the plain, everyday meaning of the words used in the document in the event there is a dispute.

    Sign away?

    Consider the following two situations:

    1. You have negotiated a good settlement of the long-running legal issues (whether or not court proceedings are on foot) with a business supplier. They will pay you $50,000 “at some point” to settle the accounts and “sort the details out” later. You usually operate on handshake agreements, but the specifics are hazy and you really want to get this one right. Do you contact a lawyer to instruct them to put the agreement into writing? Will it be worth getting a lawyer at the end of the matter?
    2. You have agreed to accept a voluntary redundancy from your employer. The redundancy is, however, on the condition the parties “enter into a deed of release”. Your employer then sends you a draft deed containing detailed clauses and it all appears to be in order. Should you sign the deed? Should you have even agreed that the redundancy be subject to a deed in the first place?

    In order to answer these questions, we explore what a deed is and what you can expect it to contain, and some words of caution when you may be in a position to need one.

    Usual formalities

    Most law firms and lawyers will rely on their pro forma deeds, amended as necessary to fit the situation. However, the below are some key elements which can be found in most deeds of settlement.

    Parties: Who agrees to be subject to the deed and bound by its terms. Whilst it may seem obvious in some circumstances as to who the parties should be, sometimes it is not so simple. Should the directors of a company be parties to the deed, even if the directors personally weren’t part of the court proceedings? Can the other side demand that all of your subsidiary companies be included when the dispute wasn’t specifically about them? This will depend on a case by case basis.

    Recitals: A brief background to the dispute set out in dot points. This section should set out succinctly and usually chronologically any facts the parties agree are relevant for the purposes of the deed. If it is to settle a current court case, it may include expressly that the parties have agreed to enter into the deed “without any admissions” and to avoid the time and cost of further litigation.

    Definitions: The key words or phrases used throughout the deed to ensure consistency and readability. A common definition is “Business Day”, which is usually a day on which trading banks are open for ordinary business in the chosen state or territory. Whilst some definitions are straightforward, care needs to be taken to define any settlement sums clearly, including whether they are inclusive of GST or any other taxes, interest, legal costs and disbursements.

    Settlement/ Release/ Indemnity: The terms the parties actually agree to do (or not do) from the moment of exchange. These terms are sometimes used interchangeably, however, as their names suggest, they mean very different things. Deeds may have one or all of these components.

    As stated above, a settlement will usually be used for a disputed matter. Key terms will include who will do what, and when they will do it; for example, Party A will pay Party B the “Settlement Sum” (which should be set out in your definition section) within ten business days of the date of the deed. Party B will agree to never commence court proceedings or any type of claim in respect of the circumstances which gave rise to the payment.

    A release means that past, present and future claims will be limited or discharged in some way; usually they are ruled out in their entirety. In an employment context, if an employee accepts a voluntary redundancy, the employer will want to be released from any liability including, for example, unfair dismissal. By the same token, an employee could require a release from any actions arising from their employment such as negligence.

    An indemnity is a type of insurance for future loss or damage. One party agrees to take on the risk of the other party for damage that may occur as a result of a certain event occurring. Be careful that you are not indemnifying a party for acts or events entirely outside your control well into the future.

    Default: What happens when a party does not adhere to the terms of the deed. A good default clause will include a detailed process that needs to be followed in the event a party fails to fulfil its obligations, starting from giving notice of the default. An example for non-payment of an instalment agreement is that the balance of the amount becomes due and payable immediately. The consequences of a default will necessarily be different for each party, so any possible contingencies will need to be considered.

    Confidentiality: The parties cannot disclose the terms of the deed unless required by law. Most deeds will include a standard confidentiality clause. Depending on how widely it is drafted, it may range from being unable to discuss the exact terms or even as far as being unable to disclose the existence of the deed itself. An exception to confidentiality includes when a party sues for breach of deed in the event of default.

    Applicable laws: The jurisdiction to interpret and adjudicate the terms of the deed. An ACT matter where both parties reside in the Territory and the facts all arose in Canberra will usually nominate ACT laws and courts to hear any dispute relating to the deed. This can become complicated when there are national or even international issues which played a part.

    Entire agreement: The terms set out in the deed comprises the full conditions by which the parties agree to be bound. This means any prior negotiations and agreements will be superseded, and this is why you want someone with serious drafting skills to capture all the necessary components without making it an overly onerous document.

    Execution: The official signing of the deed, usually prefaced with a statement to the effect that it is “executed by the parties as a Deed”. A company will need to execute a deed in accordance with the Corporations Act 2001, by its directors or a director and company secretary.[3] An individual will need to “sign, seal and deliver” the deed, which nowadays means signed before a witness who is not a party to the deed.

    Exchange: One party’s executed deed is given to the other party/parties, and vice versa. A deed may be executed in counterparts and this is usually provided for expressly. This means the parties will sign separate but identical copies of the same deed, which together form a single binding document. These days, lawyers often exchange deeds electronically, by sending scanned copies of the signed deed by email. You should ensure that the copies exchanged are identical documents, rather than a previous version which has since become redundant.

    Some notes of caution

    • Get it right from the negotiation stages. If you intended to settle a directors’ dispute but not the shareholders’ claim, this should be made clear from the beginning. Otherwise, you may be locked into a settlement that you never wanted or anticipated, resulting in those terms being locked into a deed.
    • Ensure you read and understand all the terms of the deed prior to signing and returning it. Once it is exchanged, it is a legally binding document. For example, if the deed contains a confidentiality clause, depending on the wording, it is unlikely you will be able to talk to the media about the deed or the even the circumstances of the case.
    • A cause of action founded on a deed has a 12 year limitation period in the ACT, rather than the usual six years for a contractual claim.[4] This means if a party breaches the deed, the non-breaching party will have 12 years from the date of the breach to commence a court claim to have it rectified. Keep in mind the limitation period varies in each state and territory.
    • Make sure you keep an exchanged copy for your records. The deed sets out the rights and obligations of all parties, so it is the key document to refer to going forward. In the event a party breaches the deed, you will need to refer to it (including any default provisions) to seek redress.

    To collectively answer the questions posed in the opening scenarios, as shown above, a deed is a complicated document which can have serious legal consequences. When used properly, it can be a valuable document for any party. It is always worth getting a lawyer’s opinion early on, or even to review the terms of a deed to ensure that you are not signing away your rights.

    If you need legal advice or require assistance in drafting a deed, please contact us.

    [1] Pollock on Contracts (8th ed, 1911), p 175.

    [2] Beaton v McDivitt (1987) 13 NSWLR 162, 168.

    [3] Section 127.

    [4] Limitation Act 1985 (ACT) sections 11 and 13.

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  • fair_work_act

    A Guide to Compliance with the Fair Work Act

    Bradley Allen Love offers a range of seminars and workplace training tools which can be tailored to your workplace and interests. Gabrielle Sullivan, Director – Employment & Workplace Relations,  recently spoke at the Australian Medical Association equipping practice managers and HR professionals with the fundamentals of employment law, noting that even large corporations manage to get the basics wrong.

    Click here to view the presentation:  A Guide to Compliance with the Fair Work Act

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  • Property Market update – ACT

    METH: Ruining Lives and Properties

    It goes without saying that when you are hired to market a property, you will find out as much as you can about it to ensure you can find a buyer or a tenant — whether that is information about the house’s design and construction, an understanding of its location and potential price or insider knowledge about the neighbourhood.

    One thing that might not be considered is whether the house has been used for illegal activities and whether these activities have had a lasting impact on the property. Attention to these factors has become important recently with the rise in the creation and consumption of a drug called methamphetamine, which has almost tripled since 2011.

    Methamphetamine (also called ice or meth) is a highly addictive drug that is made or ‘cooked’ inside properties, which leads to contamination. This contamination has considerable consequences for any current and prospective inhabitants, as well as the condition of the property itself. For example, in 2016 the Courier Mail reported that a family who had purchased a house in rural Victoria had discovered their six year old son had the same levels of methamphetamine in his body as an adult drug abuser, just by living in the house. The family sued the local council for not disclosing the activities.

    The chemical fumes that are a by-product of the drug seep into plaster, paint, carpet, the walls, furnishings and the floor, and it is very difficult to remediate — properly decontaminating the house can require completely gutting a property to a shell and in some cases it can be cheaper to demolish. In New Zealand, meth contamination has become such a problem that home insurers like IAG have recently increased premiums and excess levels.

    WHAT DOES THIS MEAN FOR YOU?

    All agents need to be aware of what kind of property they are marketing and whether they need to disclose that some kind of illegal activity — such as meth cooking — has taken place in the property.

    A failure to disclose methamphetamine contamination may result in an agent being liable for misleading or deceptive conduct. Indeed, in 2016 in New Zealand a family sued an agent who sold them a meth contaminated house. It is likely that methamphetamine contaminated houses will be seen as ‘stigmatized properties’ — if an agent sells such a property without disclosure they may be open to large fines.

    Finding out that a house is being used for illegal activities is likely to be difficult. Some signs of meth contamination can include burns, rust in unusual places like doors and windows, strange smells and stains, and yellowed walls. It may also be prudent to include a section regarding awareness of illegal activities on a client questionnaire when you are first engaged. It may then be necessary to make further enquiries to ensure no misrepresentations are made.

    It is clear that smoking meth ruins lives, but the cooking of meth ruins houses.

    If you are concerned about what you should or should not disclose, please contact our office for advice.

    First published in REIACT July Newsletter

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  • bonus time - paying for performance

    Bonus Time: Paying for Performance

    A short case study video on the pitfalls around employee salary review and bonuses.

    Tips for employers:

    1. Make sure you are not capricious, arbitrary or irrational in awarding discretionary bonuses;
    2. Note that sometimes employees who are terminated before receipt of a bonus may be entitled to a portion of that bonus; and
    3. Be wary that workplace policies can sometimes have contractual force
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  • Disputes over Burial and Cremation - who has the last say?

    Disputes over Burial and Cremation - who has the last say?

    There is little doubt that we still live in “death denying” community where talking about death is considered an uncomfortable and taboo topic.

    Consequently, too few people express their wishes with regards to their burial during their lifetime. Add into the mix the highly emotional time following the death of a loved one and it is only natural that disagreements and disputes arise between family members over a loved one’s burial plans.

    Disagreements and disputes can vary from where the person is to be buried, whether they are to be buried or cremated, and who is to be invited (or uninvited) from the memorial service. Disputes are more likely to arise where:

    • The deceased is of indigenous descent;
    • In cross cultural families;
    • In blended families;
    • In families of where the deceased was lesbian, gay, bisexual, transgender or intersex;
    • In families where there is or has been conflict.

    Disputes regarding the disposal of body are unique in that there is usually no “compromise” that could satisfy all parties.

    Where does the Law stand with regard to disposal of body?

    A testator cannot dispose of something which he or she does not own. A corpse is not considered “property” (Williams v Williams (1882) 20 Ch D 659) and therefore cannot be subject to property offences such as being seized or stolen.

    Contrary to common belief, wishes and directions set out in a Will regarding burial or cremation are precisely wishes. They are not binding on the testator’s executor or enforceable at law. At best, they offer guidance to the executor and to the family and are morally binding.

    Where then does the law stand with regard to the disposal of body?

    Where there is a Will , the executor (and if there is more than one, then the executors jointly unless contrary intention is expressed in the Will) has the right and responsibility to arrange for the disposal of the deceased person’s body.

    Where there is no Will, then the person with the highest rank to apply for a Grant of Representation in that jurisdiction has the same rights as an executor. This of itself might cause disputes as there may be disagreement as to who ranks has priority ranking to apply for a Grant of Representation (say for example, in the situation where the children of a deceased person deny that the deceased’s girlfriend was his legal “de facto” partner).

    The principles regarding the disposal of body were discussed in a fairly recent case of Darcy v Duckett in the NSW Supreme Court. This case had to consider both the principles in law, and also traditional Aboriginal law.

    Mr Darcy died intestate leaving 4 children from one relationship and another 4 children with his de facto partner. He was born in Gulargambone (NSW) and was part of the Aboriginal Weilwan tribe. He had also been living on and off with his de facto partner at Bowraville (NSW). Ms Darcy’s sister insisted that he be buried on Weilwan country and his de facto partner wanted him buried in Bowraville.

    The common law principles regarding the right to dispose of a body were summarised by the Court (referring to the case of Smith v Tamworth City Council (1997) 41 NSWLR 680):

    1. A person named as an executor in the deceased’s will has the right to arrange for the burial of the deceased’s body.
    2. Apart from appointing an executor, a person may not dictate what will happen to his or her body.
    3. The person responsible for the burial of the body is expected to consult with other stakeholders, but is not legally bound to do so.
    4. If no executor is named, the person with the highest right to apply for a grant of administration will have the same right regarding disposal of the body as a named executor.
    5. The right of the surviving spouse or de facto spouse will be preferred to the right of the deceased’s children.
    6. Where more than one person has an equal right to disposal, the practicalities of burial without unreasonable delay will prevail.

    The Court had regard to the views of the indigenous community. The Court ultimately held that de facto partner had a superior claim for administration of Mr Darcy’s estate and also had superior right based on Indigenous laws and traditions.

    Different rules apply to persons who are members of the defence force or armed services who die while on service. Special rules also apply for deceased destitute.

    Further, where the deceased has expressed or implicitly requested not to be cremated, those wishes must be taken into account (s 20 Cemeteries and Crematoria Act 2003 (ACT)).

    There are two takeaway point from the Darcy case:

    • It is important to put a Will in place that validly appoints an executor who can take care of your affairs and burial/cremation once you die; and
    • It is important to talk about and express your wishes with regard to your burial/cremation during your lifetime.

    The best way avoid a dispute is to make sure you have a valid will in place that clearly sets our your wishes. Please contact our Estate Planning team to learn more.

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  • Has the ACT maxed out on Units?

    Has the ACT maxed out on units?

    On 29 June 2017, the ACT Government introduced the Planning and Development (Lease Variation Charges) Determination 2017 (No 1) through which the ACT Government seeks to improve the efficiency and transparency in the ACT planning system, but more particularly the application and codified value of Lease Variation Charges (LVC)[1]. The changes brought in under the Determination will apply to development applications submitted after 1 July 2017.

    Under the Determination, the codified value of LVC’s relating to GFA increases under commercial and industrial Crown Leases and additional dwellings under residential Crown Leases has been amended. The more controversial of the changes has been the increased LVC payable on variations required to enable unit titling on residential land.

    Under the former LVC determination, if a developer were to submit an application to vary a residential Crown Lease to specify that 5 dwellings were permitted on the land, the LVC payable would have been the sum of $32,500 (being, $7,500 for the first 3 dwellings plus $5,000 for each additional dwelling). The new Determination however, sets a flat fee of $30,000 per dwelling meaning that the LVC payable (for applications submitted after 1 July 2017) will now be $150,000.

    If you are a developer and are unsure if the new LVC determination will affect you, please contact the Real Estate and Commercial Team at BAL Lawyers.

    [1] Planning and Development (Lease Variation Charges) Determination 2017 (No 1), Explanatory Statement.

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  • Co-operatives: Need to know

    Co-operatives: Need to know

    Co-operatives are organisations that are owned, controlled and used by their members primarily for the mutual economic, social or cultural benefit of those members. Co-operatives are founded on seven international principles that empower and educate their members and promote community participation and support; they are values-based entities, albeit ones which can turn a profit for their members.

    It seems only right that the ACT Government finally introduced the Co-operatives National Law (ACT) Act 2017 (“CNL”); a move which shows its co-operation with the other Australian State and Territory Governments and which delivers comparable rights and obligations of companies.

    Co-operatives are prolific around the world. There are approximately 2.6 million co-operatives in the world with about 1 billion members. In Singapore, about 25% of the population is a member of a co-operative, with about 1.4 million members[1]. New Zealand co-operatives represent approximately one fifth of NZ’s economy based on revenue with (again) approximately 1.4 million members[2]. Co-operative enterprises employ 250 million people worldwide and generate over 2.2 trillion USD[3] in turnover all while providing member benefits.

    Co-operatives are found in all sectors of the economy including agriculture, banking and finance, housing, insurance, retail, healthcare, aged care and education. The CNL reduces the regulatory burden and reporting requirements to allow co-operatives in Australia (and now Canberra specifically) to stay agile in an increasingly global economy.  So what are these changes?

    1. Co-operatives: Registration and Rules

    Historically, co-operatives have only been able to trade in the jurisdiction it was registered in unless it also registered as a ‘foreign co-operative’ in other jurisdictions (i.e. the other States and Territories). The CNL relieves the administrative burden of multiple registrations and reporting and allows for mutual recognition of co-operatives, delivering a simplicity that has been afforded to companies registered under the Corporations Act 2001 (Cth) for over 16 years.

    2. Simplification of financial reporting requirements

    Small co-operatives[4] are no longer required to lodge publically available accounts with the Registrar or appoint an auditor to have their accounts audited annually, saving time and money. Small co-operatives will however still lodge an annual return with the Registrar, and, may (as best practice or out of a specific membership concern) conduct an audit. These new measures under the CNL will provide significant costs savings for small co-operatives and align with the financial reporting requirements on small companies under the Corporations Act 2001 (Cth).

    3. Co-operative Capital Units

    The CNL also provides for a hybrid security called “co-operative capital units”. Co-operatives can issue these units to non-members anywhere in Australia allowing co-operatives to raise external capital without compromising member rights and democratic control.

    Co-operatives are a fascinating and sustainable business model, particularly in an age of corporate social responsibility and social enterprise. The CNL represents a supportive legal framework to secure the co-operative identity and better equip co-operatives to grow their businesses.

    If you want to discuss the implications of the CNL, contact Katie Innes.

    [1] Source: International Co-operative Alliance

    [2] Source: Cooperative Business New Zealand

    [3] Source: International Co-operative Alliance

    [4] Small co-operatives must not have raised funds from the public issue of securities or if it issued shares (no more than 20 members and the amount raised must not exceed $2 million in 12 months) and they must satisfy two of the three criteria:

    a) the consolidated revenue of the co-operative and the entities it controls (if any) is less than $8 million for the previous financial year;

    b) the value of the consolidated gross assets and the entities it controls (if any) is less than $4 million at the end of the previous financial year;

    c) the co-operative and the entities it controls (if any) had fewer than 30 employees at the end of the previous financial year.

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  • Lawful Threats – When is Pressure Too Much?

    Lawful Threats – When is Pressure Too Much?

    If you have been forced into a transaction because of the actions of another, that transaction may be set aside in certain circumstances. The doctrine of duress is well established, and works to protect parties who have been forced into an agreement by the illegitimate pressure or threats from the other party, by giving rights to the aggrieved party to void transactions.

    What is duress?

    In order to establish a claim for duress, a party must demonstrate that:

    1. they were subject to illegitimate pressure; and
    2. the illegitimate pressure induced the plaintiff to confer a benefit on the other party.[1] What is a ‘benefit’ in this sense is broad, and can include entering into an agreement on unfavourable terms.

    But what about circumstances, for example in a commercial transaction, where one party is exerting legitimate pressure on the other? Can legitimate pressure, which is lawful, cease to be a normal incident of commercial transactions and amount to duress? Or should prospective plaintiffs rely on the statutory protections afforded by the Australian Consumer Law?

    While the law in this area is continuing to develop, we may be given a clearer picture soon.

    In the upcoming months, the High Court of Australia will hear an appeal in the matter of Kennedy v Thorne [2016] FamCAFC 189. This will see the High Court examining the enforceability of a prenuptial agreement insisted upon by one party prior to the marriage; in essence, the consideration will be whether the conduct in that context, whilst lawful, may nevertheless have been illegitimate.

    Justice Edelman, newly appointed to the High Court, has worked extensively in the field of restitution, which encompasses the concept of duress. With Thorne v Kennedy being His Honour’s first opportunity to deliver a judgment in the field of restitution, it seems likely that this opening act will cast significant light on the scope of duress. Whilst Thorne v Kennedy will be heard in a family law context, the ramifications to the general commercial law may nevertheless be significant.

    When is pressure illegitimate?

    The courts have recognised that unlawful conduct, such as threats to a person or threats to detain another’s property, is illegitimate. For instance, if a salesman said to you “Buy this pen for $1,000 or I will beat you up”, the resultant transaction could be voided, on the ground that you only entered into the transaction because of duress. However, what amounts to duress from seemingly ‘lawful’ commercial pressures is still controversial. Watch this space insofar as Thorne v Kennedy may provide clarity in the near future.

    What if pressure is legitimate?

    Threats are often made in commercial contexts to compel another party into action:

    “I’ll sue!’

    “I’ll breach!”

    “I won’t supply to you”

    Will threats of this nature be considered duress, despite the fact that they are ‘legitimate’? Several courts have considered the extent to which commercial pressures can and should constitute “economic duress”.

    In the leading authority in this area, McHugh JA stated that pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct.[2] However, he left the category of “economic” duress (that is, conduct that is not unlawful) open, only to say that overwhelming pressure, which does not amount to unlawful conduct, will not necessarily constitute duress.

    For instance, Company A might say to Company B that they will not supply to them unless Company B agrees to some onerous conditions. Despite the pressure that may be applied, there may not necessarily be a case for duress, as the conduct is not unlawful. What is clear from the case is that, to constitute duress, a high bar has been set.

    The phrase “economic duress” has become used frequently, but remains frustratingly undefined, and subsequent courts have been reluctant to interfere with commercial dealings. In Equiticorp Finance Ltd (in liq) v Bank of New Zealand the issue was revisited.[3] In that case, the Bank of New Zealand requested of the chairman of the Equiticorp companies that cash reserves be applied to the discharge of a debt owed to the Bank. It was found that the Bank was asserting commercial pressure, but this pressure did not amount to economic duress.

    Kirby P (in dissent) was critical of the inherent vagueness of economic duress. His Honour stated that there needed to be more clarity as to what conduct amounts to economic duress (and is not allowed) and what conduct does not.[4]

    Statutory relief

    While the law in this area is developing, there remains some relief in statute. For example, the Australian Consumer Law prohibits conduct that is “unconscionable”, a concept which can bear many similarities to economic duress. Through this, conduct may not necessarily be unlawful, but may amount to that which ought not to be permitted in commercial dealings.

    Since the introduction of the Australian Consumer Law in 2010, there have been various authorities dealing with the question of unconscionable conduct. This begs the question, is it necessary to have both this and “economic duress”? Considering the uncertain nature of economic duress, it seems that relying on statutory protection would be an easier course. Indeed, the NSW Court of Appeal came to a similar conclusion in Australia and New Zealand Banking Group Ltd v Karam.[5]

    The main point from all of this is that the law of economic duress is continuing to develop, both through the courts and through legislation. Is there a place for both a common law doctrine of economic duress and statutory prohibitions against unconscionable conduct? The hope is that Kennedy v Thorne will shed some light and provide guidance on the issue; however, until the matter of “economic duress” is resolved, the statutory measures offered by the Australian Consumer Law should be followed at the minimum.

    [1] Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40, 45-6 (McHugh JA).

    [2] Ibid 19 NSWLR 40.

    [3] (1993) 32 NSWLR 50.

    [4] Ibid 106.

    [5] [2005] NSWCA 344.

    Our business and commercial litigation teams have experience with cases of duress and assisting clients set aside transactions which they have been forced into. If you are concerned because you may have entered into an agreement on account of duress, and wish to know your rights, please contact us.

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  • Work address personal information

    Can you keep a secret? When a work address is personal information

    A recent decision in the NSW Civil and Administrative Tribunal highlights the importance of thinking carefully about whether information constitutes personal information that may be protected by the Privacy and Personal Information Protection Act 1998 (NSW).

    In CRP v Department of Family and Community Services it was found that, in the particular circumstances of the application before the Tribunal, an individual’s work address was personal information that was protected by the Act.

    Following an incident in which a Departmental employee released the applicant’s work address to an estranged family member, the Tribunal has definitively stated that, in these circumstances at least, doing so amounted to a breach of privacy.

    Given how easy it can be to reveal seemingly harmless information, this case demonstrates how important it is to be careful with any information that might be considered to be personal information.

    The background

    The applicant was employed with the Department of Family and Community Services. He was estranged from his father, with whom he had a long-running personal dispute. The applicant’s father phoned the office without identifying himself. He requested, and received, the address of the applicant’s workplace: previously, he had only known the name of the organisation for which his son worked.

    Following this, the applicant’s father went to the son’s place of work, where he confronted him and handed him some documents.

    The son – the applicant in the proceedings, argued that through the Department’s actions, his personal information had been shared in breach of the Act.

    The findings

    The Tribunal considered whether the applicant’s work address was information ‘about an individual’ for the purposes of s4 of the Act. If so, by providing the information, the employee had breached ss 17 and 18 of the Act.  The respondent argued that it was not, as this was information that had been shared within the normal course of business, as part of the applicant’s work. The Tribunal, however, found that this was not the case.

    In coming to its decision, the Tribunal considered the findings of several previous Tribunal decisions saying that the definition of ‘personal information’ was to be interpreted broadly and that the Tribunal should not adopt an overly technical approach.  Instead, the Tribunal said that it was important to consider the information that was provided in context.

    Ultimately the Tribunal decided that the information had been provided in a context that solely related to the applicant. At the time, there had been no indication that the phone call was made in connection with the applicant’s work, or as part of his role as a caseworker. No other information was requested. By giving out the applicant’s work address, the Department’s employee provided personal information about him, and as a result breached his privacy.

    The consequences

    As a result of this breach, the Department was ordered both to apologise to the applicant, and to review its current Privacy Management Plan. However, this case could evidently have significant general consequences. While providing a work address for a co-worker may seem harmless, as we have seen here, the results can be serious.

    Written by Alan Bradbury, Legal Director, Planning, Environment and Local Government.

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  • Reference Checking - BAL HR Breakfast Club

    Reference Checking: HR Breakfast Club June Summary

    This month, we discussed the importance of reference checking. Ian Meagher chaired the meeting with special guest Jeremy Boland, Principal Consultant at Gillian Beaumont Legal Recruiting giving some insight on reference checking:

    1. What is appropriate information to release, and ask for, as part of a reference enquiry?
      In all cases, relevance is key. If the information is relevant to how a potential employee may ultimately perform in an applied for position, that is essentially what the potential new employer should be looking for. Asking questions that relate to a potential employee’s values is permissible, provided it is within reason and does not extend into any discriminatory areas.
    2. Do I need to provide a reference, if asked?
      No.  In fact, you may be doing the person a disservice by doing so. Whilst a possibly uncomfortable conversation to have, there may be times when the appropriate answer to being asked to provide a reference is to flag that, for whatever reasons you may hold, the person may wish to consider asking another person to speak for them

    There was also a short video case study about the importance of reference checking. Watch it again.

    Q&A CORNER

    Q. Can I direct an employee to not provide a reference for an outgoing employee?

    A. Provided the direction is reasonably made (which, in general terms, should be so), such a direction will be lawful.  The reason why such a direction should be reasonable for an employer to make is because if a current employee gives a reference as an agent of your business, then it will reflect poorly on your business if it turns out to be inaccurate.  Requiring control of such decisions to vest with the directors, owners or such other appropriate senior staff, is thus reasonable.

    If you are interested in attending HR Breakfast Club, please submit your email below and you will be added to the invite list.

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  • Queensland now the latest State to follow the recognition of de facto and step-children’s rights

    Queensland now the latest State to follow the recognition of de facto and step-children’s rights

    A few weeks ago we wrote about the Victorian Court of Appeal recognising the rights of de facto children in the case of Scott-Mackenzie v Bail. The case concerned an applicant whose mother was in a domestic relationship with the deceased for 40 years until the mother’s death years prior to the deceased’s death. The applicant bought a claim under Part IV of the Administration and Probate Act 1958 (Vic) in a (bold and successful) attempt to widen the Courts interpretation of “Step Child” to including one where the parties were not married.

    This case was handed down in May this year.

    Queensland has now followed by recently introducing major changes to the Succession Act 1981 (Qld).

    Two major changes include:

    1. A new section 15B being inserted which sets out that the end of a de facto relationship revokes any gifts to the de facto partner and the appointment of the de facto partner as executor – this in effect treats de facto relationships the same as marriages.
    1. The expansion of the definitions of “Step Child” contained in section 40A for the purposes of making a family provision claim. A step child/step parent relationship is deemed to have ended upon the ending of the de facto relationship and not merely because the step child’s parent died before the deceased person (if the de facto relationship subsisted at the time the parent died) or if the deceased person remarried or entered into another relationship or de facto relationship after the death of the stepchild parent.

    The “movement” towards highlighting the changing familial values in Australia all started with the Western Australian case of Blyth v Wilken [2015] WASC 486 which was only handed down very recently in 2015 and at the time, this was truly a landmark decision of its kind Will in Australia.

    In the case of Blyth v Wilken, the deceased left a Will dated 2 December 2003 giving the bulk of his estate to “my de facto wife Katherine Mary Murray”.

    The deceased and Ms Murray ended their relationship in 2011 and the deceased subsequently died in 2014 without changing his Will.

    The Court decided that Ms Murray did not receive the gift under the Will because her relationship with the deceased had ended. The Court recognised that the deceased had only intended Ms Murray to receive the gift if she continued to be his de facto spouse – and not in any other instance. In other words, the Court held de facto relationships on the same platform as marriages when it came to the interpretation of a Will.

    At the time the judgement in Blyth v Wilken was handed down, there was a lot of scepticism by commentators that this judgement would be appealed or otherwise challenged in the future.

    With Victoria and Queensland following the trend towards recognising these relationships, it may be safe to say at this stage that other Australian jurisdictions are likely to follow down the path of recognising  de facto and step children’s rights.

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

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  • Litigation enlivened by Facebook "liking"

    Litigation enlivened by Facebook "liking"

    Gone are the days where defamation cases solely concerned allegations in newspaper articles or remarks on the radio. Now Australian courts are hearing trials over tweets, feuds over Facebook and litigation over Linkedin. But a Swiss court has taken it one step further making a finding of defamation against a Facebook user for liking a post.

    A statement from the Zurich district court has revealed that a 45-year old man has been fined for liking what a judge deemed to be defamatory Facebook posts.

    The comments accused Erwin Kessler, the president of an animal rights group, of racism and anti-Semitism. The posts arose on Facebook during discussions about which animal activist groups should be allowed to participate in Veganmania Schweiz, a large vegan festival in Switzerland.

    The posts claiming that Kessler was racist and that his welfare group was a neo-Nazi association were liked by several Facebook users, including the defendant.

    Kessler commenced legal action against several people who contributed and participated in the posts. Several users who posted on during the discussion were found guilty of defamation, but the defendant is believed to be the first person to have been fined for simply “liking” such comments. Court documents reveal that the defendant’s “liking” of the posts were an “affront to [Kessler’s] honour” and was a clear endorsement of the “unseemly content”.

    Social media defamation cases are going viral in Australia. Last year a Facebook post insinuating that the plaintiff was a paedophile cost one Facebook user $150,000. Justice Gibson of the NSW District Court, warned social media users that:
    The anonymity instantaneous and wide-ranging reach of the Internet and social media make it a dangerous tool in the hands of person who see themselves as caped crusaders or whistleblowers, or alternatively want to ‘troll’ other members of the community for the purpose of gratifying their own wishes or fears or for the purpose of gaining attention”

    But the decision of the Swiss court reinforces the need for caution in maintaining a social media presence. While Australian courts have so far restricted finding the requisite ‘publication’ of defamatory remarks to those who post, it may not be long before “liking” results in more than Facebook notifications.

    Written by Laura Scotton. If you would like to more about defamation, please contact us.

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  • World Elder Abuse Awareness Day – 15 June 2017

    World Elder Abuse Awareness Day

    15 June 2017 was World Elder Abuse Awareness Day — a day designated by the United Nations General Assembly to raise awareness on the potential mistreatment and abuse inflicted on members of the elder community.

    As the number of older persons continues to steadily increase among the Australian population, so does the risk of elder abuse.

    What is elder abuse?

    The World Health Organisation defines elder abuse as:

    “a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person. Elder abuse can take various forms such as physical, psychological or emotional, sexual and financial abuse.”

    World Health Organisation (WHO – 2002)

    It is apparent therefore that elder abuse can take a number of forms and is not just limited to financial or psychological abuse.

    How common is elder abuse?

    Various studies (primarily conducted in Victoria, Queensland and New South Wales and which were based mostly on anecdotal evidence) suggest that it is more common than we realise.

    The available evidence suggests that prevalence of elder abuse varies across different types with physiological and financial abuse being the most commonly reported types of abuse recorded. Women are more susceptible to elder abuse than men. There has been no reported study conducted in the ACT on elder abuse to date.

    On an international level, the United Nations estimates that based on the available information, 5 to 10 per cent of the elderly population may experience some kind of financial exploitation.

    Signs of Elder Abuse

    Very broadly, some warning signs of elder abuse might include the following:

    • Control of access to bank accounts and other household money;
    • Denying access to internet, phone or transport or withholding mail;
    • Denying access to other family members or support persons;
    • Moving into the home of an older person (with or without consent) and failing to contribute to household costs;
    • Coercing or influencing the older person to sign paperwork including loan documentation, Wills, Loan Agreements and Powers of Attorney;
    • Neglect or not giving the person the care and medical attention they require;
    • Using a power of attorney of an older person inappropriately.

    Part of raising awareness of World Elder Abuse Awareness Day includes understanding and being able to recognise the signs of Elder Abuse.

    What is being done about Elder Abuse Australia Wide?

    Early last year, the Australian Law Reform Commission (ALRC) launched a national inquiry and on Thursday 15 June 2017 (to coincide with World Elder Abuse Awareness Day) released its final report on the topic.

    In its report, the ALRC has urged the Federal Government to seize a “once in a lifetime opportunity” to stop the financial and physical abuse of the elderly. The report contains 43 recommendations for the Attorney-General, George Brandis, to consider. The recommendations include:

    • proposing an incident response scheme, requiring aged care providers to report allegations of physical, sexual, and financial elder abuse to an independent oversight body
    • putting in place guidelines for financial institutions (including amending the Code of Banking Practice) to ensure banks take reasonable steps to prevent the financial abuse of vulnerable customers
    • putting in place a national register of enduring powers of attorney to prevent abuse of the document

    What can you do to prevent Elder Abuse?

    Be aware, raise awareness and know how to recognise (and when to report) Elder Abuse

    Recognise the warning signs in the older person, in the caregiver, in the home and among family. The majority of abusers are those in close contact with the older person and usually family. Of family member abuses, about 50% are reported to be adult children and 20% to be intimate partners of the older person. As mentioned above, the data indicates that women are more susceptible to elder abuse than men.

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  • Reference Checking

    The importance of reference checking

    Below is a short case study around the importance of reference checking, and what can happen if you don’t keep accurate records.

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  • WHEN CAN AN EMPLOYER DIRECT A WORKER TO ATTEND A MEDICAL APPOINTMENT

    When can an employer direct a worker to attend a medical appointment?

    It is a well-established employment law principle that a worker must follow the lawful and reasonable instructions of their employer.

    A recent decision of the Federal Court in Grant v BHP Coal[1] has upheld the dismissal of a worker for refusing to undergo a medical examination by a company-nominated doctor.  A Queensland boilermaker, who had undergone surgery for a work-related shoulder injury, was cleared by his GP as “fit to return to normal duties” after 8 months’ sick leave.  His superintendent directed him to see a company-nominated occupational physician to assess his fitness before he resumed work.  The worker refused and was eventually sacked.

    The Court did not have to consider whether an employer has an implied contractual right to order a worker to undergo a company medical examination (in the sense that it was not an unlawful direction and, accordingly, fell within the scope of the contract of employment).  Here, the broad obligations under Queensland’s coal mining legislation for mine safety and management applied and makes it clear that a mine worker could be required to undergo a medical examination in cases where there might be a risk to the safety and health of the worker and other mine workers because of his injury.

    The case does not stand for the general proposition that every direction by an employer to a worker to attend a medical examination with a doctor chosen by the employer will be reasonable.  Whether such a direction is reasonable will depend on the circumstances of each case.  For example, a worker may only have been sick for a short period of time, or may have already given sufficient information to their employer about their illness.  In this circumstance, it is unlikely that a direction to attend a specific doctor would be reasonable.

    If an employer was uncertain of a worker’s health status and had genuine concern as to their fitness to perform their job safely, a lawful direction to the worker to attend a medical assessment could be given as it could be argued that there is a genuine and legitimate operational reason for doing so.

    Employers have strict and onerous obligations to ensure the health and safety of their workers while at work.  Because of these obligations, various courts and tribunals have recognised, in some circumstances, an employer has a right to compel or demand a worker attend an independent medical assessment so they can determine the worker’s fitness for their duties.  Any refusal by the worker to do so may expose them to the risk of disciplinary action up to and including dismissal.

    An employer cannot exercise this right arbitrarily; they have an obligation to provide “procedural fairness” in the particular circumstances of the case.  This includes the employer giving the worker adequate notice of the medical appointment that they require them to attend.  Furthermore, procedural fairness also requires that the worker be allowed the opportunity to secure their own medical opinion if they do not agree with the opinion provided by the employer’s doctor.

    The doctor conducting the assessment should be provided with a thorough description of the work duties to enable them to assess appropriately whether or not the worker’s disability, illness or injury will affect their ability to undertake those duties.  The medical assessment will consider whether the worker is medically fit to perform the inherent requirements of their job and if any adjustments could be made to the role to enable the worker to perform their position.  It would be unreasonable for an employer to embark on a “fishing expedition” by asking unnecessarily broad questions of the doctor, such as asking for a complete medical history when the medical issue is more confined.

    Can an employer obtain medical reports on their workers without their knowledge or consent?

    The short answer is NO.

    The federal government’s Merit Protection Commissioner has recently ruled[2] on a “secret medical” on a paper-based assessment from a doctor of a public servant who had not been informed that his mental health was being examined.  The public servant had not worked since 2011 as a result of claimed bullying and harassment suffered whilst employed by the Department of Human Resources.  A doctor’s report was commissioned to assess work fitness and was done without the public servant’s knowledge or consent.  The Commissioner found that the Department breached its legal obligations when it handed the public servant’s medical file to the doctor asking for an assessment.  The Commissioner’s office ordered the Department to discard the “file assessment” on its employee finding that it failed its legislative requirement to act in a fair and reasonable manner.

    Does an employer have the right to attend a medical appointment with a worker?

    The short answer is NO.

    The current advice on the Fair Work Ombudsman’s website is:

    Employers attending medical appointments

    We don’t consider it reasonable for an employer to go to a medical appointment with an employee unless an employee requests this.

    We also don’t consider it reasonable for an employer to contact the employee’s doctor for further information.

    Source reference: Fair Work Act 2009 (Cth) Section 107

    [1] Grant v BHP Coal Pty Ltd [2017] FCAFC 42 (10 March 2017)

    [2] “’Secret medicals’ on public servants unlawful, authority rules”: The Canberra Times 16 March 2017, page 8

    Written by Bill McCarthy, Special Counsel. If you have any questions about this article, or about your rights when it comes to medical appointments, please contact us.

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  • Public servants' right to actually work - Bradley Allen Love Lawyers

    Public servants' right to actually work, versus a Dickensian-era employment law

    An old legal rule allows employers to keep their employees idle at work.

    Imagine you are a cook. You just landed your dream job as a personal chef. You arrive at your employer’s home ready to impress but receive a message saying your employers will dine out. You take the wages left on the kitchen bench and leave disappointed. The same thing happens again every day of your first week of work until, finally, you snap, threatening to resign unless you are given an opportunity to cook. Your employer replies: “Provided I pay my cook her wages regularly, she cannot complain if I choose to take any or all of my meals out.”

    These words, quipped by judge Lord Cyril Asquith, reflect a general rule developed by British courts in the mid-19th century: an employer has no obligation to provide their employees with work. Why, though, you might joke, would an employee ever ask their employer for more work?

    Imagine a month passed and you still haven’t cooked for Asquith. Deciding enough is enough, you interview for a new position and are asked to prepare a steak. You overcook it. When employees are denied the opportunity to perform the job they were hired for, they will lose skills – whether those are the skills of a chef or a capable public servant. This old rule is particularly concerning in the modern era, when the job market is competitive and prospective employers almost always want details of a candidate’s experience.

    Public servants are among those who might feel this most acutely because their employment, promotions and performance reviews depend heavily on meeting performance targets and metrics. It is easy to see how an Australian Public Service career could be derailed when a public servant is denied work. Additionally, given it is difficult to terminate government employment, some managers might be tempted to simply stop giving their employees work instead.

    Fortunately, the courts are sympathetic to employees in this predicament. Numerous exceptions were developed to address the problems arising from this rule, typically taking the form of implied terms in employment contracts.

    First, the courts have held that employment contracts for public performers – including actors, sport stars or even cartoonists – impliedly require the employer to give their employee reasonable opportunities to perform. However, given few people conduct their careers in the public eye, the value of this exception is limited.

    Second, courts have found that contracts for skilled employees contain a limited requirement to provide a reasonable amount of work. This exception applies to apprentices, trainees and professionals with continuing practice obligations (it’s not the first time lawyers carved out an exception for themselves). However, this caveat is not a blanket obligation to provide work – as Arnold Mann, a surgeon in Canberra, discovered in 1981 when the court found his employer was not required to provide him with patients to operate on when no patients needed operations (Mann v ACT Health Commission).

    Third, when an employee receives performance-based pay, courts have found employers must provide a reasonable amount of actual work. This exception most commonly applies to employees who receive a proportion of their pay from commission. The amount of work an employer is required to offer will depend on the circumstances, but, generally, courts have found the obligation is to provide enough work to give them an opportunity to earn a commission.

    Fourth, when an employee is appointed to perform specific duties, courts have found that a failure to provide work of the kind contemplated amounts to a breach of contract. For example, if it is contrary to the contract of a chief executive to undertake general office cleaning, it follows that it is also against their contract to not have work at all. This is highly relevant in the APS, given federal government employees are frequently employed to positions with well-defined duties and obligations.

    There are other reasons why these rules are particularly applicable to public servants. APS employees must adhere to obligations found in the Public Service Act’s code of conduct. It is unclear how these obligations might affect the general rule’s application in this context. The code could be interpreted as a two-way street: if the public servant must perform work effectively, then the public service must provide work to be effectively performed. Alternatively, if a public service manager fails to give an employee work, the manager may breach the code by failing to ensure “effective performance from each employee”. The employee could then lodge a code of conduct report against their manager.

    An extra option open to an employee who finds themselves denied work is to pursue a complaint under workplace bullying and harassment protections. Though legally speaking these protections are not exceptions to the general rule, practically workplace bullying and denials of work can go hand-in-hand. There are several remedies available to bullying victims, including stop bullying orders. If it is accepted that denying an employee work constitutes bullying, it follows that a stop bullying order could take the form of an order to provide them with work.

    It would be fair to question the purpose of this old rule if judges are going to find exceptions at every turn. The High Court itself has expressed similar sentiments. In 2005, justices Ian Callinan and Dyson Heydon queried “the current relevance of judicial pronouncements made more than 60 years ago in the United Kingdom”.

    Given the right case, it is possible Asquith’s quip will be overruled. But, until that time, a little piece of Dickensian England remains part of Australian employment law. Indeed, employees asking for work might feel a little like Oliver Twist asking the master for more gruel.

    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 and Kieran Pender for their help in preparing this article. 

    First published in the Canberra Times.

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  • Preparing to sell your business bw

    Preparing to sell your business

    There will come a point when a business owner wishes to sell their investment. Whether for personal or financial reasons there are steps all owners can take to prepare their business for sale; to minimise tax, transactional costs and stress, and maximise the return.

    Grooming your business for sale can streamline the sale process. Even if the sale doesn’t proceed, you will have a better understanding of the assets that you hold and allow you to consider alternative succession plans. Below are some fundamental matters to ask yourself when selling your business.

    Consider the sale from the buyer’s perspective. If you were going to buy the business what would you want to know?
    First, understand what you are selling. This may seem obvious; you’re selling your café, what more is there? Using the café as the example, there are a number of assets that may be included or excluded from the sale:

    1. The business name;
    2. The premises; the Lease;
    3. Intellectual property rights;
    4. Stock-in-trade;
    5. Plant and Equipment; and
    6. Website and Social Media Accounts.

    Get a clear asset register, have access to your depreciation register, know what is encumbered, leased or hired. Prepare your Landlord.

    Understand these obligations early so you know what “hoops” you need to jump through to sell.

    Second, make yourself redundant – the buyer wants to know that the business can run effectively without you, otherwise the business’ value is likely wrapped up in your ongoing employment.

    Third, take practical steps now (even if you aren’t sure if you want to sell):

    1. understand what value your assets have (asset registers should include licences and intellectual property rights);
    2. document your procedures or policies (manuals about how the business operates will assist the new buyer);
    3. update all maintenance registers;
    4. maintain a list of your suppliers with copies of the relevant contracts or terms;
    5. make sure your accounts and financial statements are up to date (these can provide you and the buyer with a true understanding of the value of the business); and
    6. know where you have given personal guarantees.

    Be clear that any offer or discussions are “subject to contract” so you aren’t bound by an ill-informed handshake deal. Be careful with all representations you make. Before releasing information, consider a Non-Disclosure Agreement. In this path a business broker can be very instructive.

    Finally, seeking financial and legal advice early will assist structure the sale to minimise tax and to create a plan.

    First Published in B2B magazine.

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  • 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.

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  • 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.

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  • 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.

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  • Performance Management Video

    Performance Management: HR Breakfast Club May Summary

    This month, we discussed the importance of Performance Management. Cecilia Blewitt spoke on the nuts and bolts of performance management, including the benefits of:

    • Monthly reviews;
    • Continuous performance management for all staff; and
    • Having clear KPI’s and letting staff self review against them before their formal review to create accountability and ownership.

    Gabrielle Sullivan spoke about the dangers of performance management ‘gone wrong’, including:

    • Inconsistent performance management leading to unfair dismissal and other claims;
    • The importance of organisations following their own performance management policies to the letter;
    • The importance of performance management policies being easy for an organisation to comply with; and
    • The link between performance management, bullying claims, and workplace absences.

    The safest way for an employer to safeguard themselves is to make sure all performance management is ‘reasonable management action’. One way to gauge whether the action is ‘reasonable’ is to seek a second opinion.

    There was also a short video case study about managing performance in the workplace. Watch it again.

    Q&A CORNER

    Q. What can you do when an employee who is being performance managed goes on indefinite personal leave?

    A. If the employee has a valid medical certificate, then you must allow them to take their accrued paid personal leave. Once the paid accrued leave runs out, the employee is still considered to be temporarily absent from work on account of illness or injury until the unpaid absence extends for more than three months or an aggregate of three months in any 12 month period.  At that point, consideration can be given to terminating the employee’s employment because they cannot perform the inherent requirements of their position and it is unclear when, if ever, they will be able to do so.  In any event, you should make clear to the employee that their illness is a separate matter and that the management of their performance will continue if and when they are able to return to work.

    This answer is, of course, general commentary only.  It is not legal advice.  Readers must contact us and receive our specific advice on the particular situation that concerns them before acting or refraining from acting.    

    If you are interested in attending HR Breakfast Club, please submit your email below and you will be added to the invite list.

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  • 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.

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  • Pushing the Boundaries

    Pushing the Boundaries - Episodes One and Two

    Episode one of Pushing the Boundaries are available to watch 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.

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  • 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.

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  • 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.

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  • 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)

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  • Recruitment - BAL HR Breakfast Club

    Recruitment: HR Breakfast Club April Summary

    This month, we heard from guest speaker, Andrew Marshall, on recruitment.

    Andrew, kindly, spoke on the attraction, recruitment and retention of employees in today’s HR world.  Under each point, some of the talking points that arose included:

    1. Attraction

    • Employer Branding: Branding is more than an administrative function, and requires strategic considerations.  How one’s external and internal branding is delivered and received is an important distinction and one that some concerns were discussed in relation to.  Ensuring a consistency between your perception of your brand, as compared to the outside world’s perception, is important.
    • Value Proposition: What is your point of difference in employees wanting to work at your workplace?  As a tip, one way to look at this is from the employee’s perspective.  That is, what is their driving purpose for wanting to work with you?  How can you deliver on that, and get those benefits across, will increase your perceived value to prospective applicants.  This said, it delivering on your advertised value adds is necessary – promising the world may lead to a low retention rate.

    2. Recruitment

    • Evaluating personality profiles is not necessarily straight forward.  Experience and qualifications can be more easily documented, but competencies such as an applicant’s ability to be a leader may be harder to determine at the interview stage.  Understanding why an employee wishes to get into your work field is a useful consideration in determining their drivers – but be careful that you have not oversold the area they are pitching themselves into.  Personality profile tools can be useful, but be careful in using the right model, and don’t disregard your own judgement.

    3. Retention

    • Get the first two right (ie Attraction and Recruitment) and this should follow.
    • Keep consistency between your external brand and internal brand.
    • Recruit people for the right roles, with solid recruitment processes.  Widely scoped recruitment will (often unhelpfully) lead to a greater pool to sift through to get to the applicant you really want

    If you are interested in attending HR Breakfast Club, please submit your email below and you will be added to the invite list.

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  • 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

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  • 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.

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  • Property Market update – ACT

    Property Market Update - ACT

    A report released on 20 March 2017 by the Real Estate Institute of Australia (REIA) has found that residential property prices continued to rise in the December quarter 2016 across Australia.

    Residential

    REIA reported 545 sales of residential property in the December quarter in Canberra. In the ACT, the median house price has reached $621,000.00, which is an increase of 5.3% over the quarter and 4.2% over the previous year. The Inner South experienced the largest increase of 7.9% over the quarter and 6.3% over the previous year.

    Compared to December 2015, the median house price rose for all Canberra zones but the Inner Central, which saw a decrease of 5.4%.

    These figures mean that housing affordability has again worsened in the ACT, with the proportion of income required to meet loan repayments hitting 19.7%.

    Rental

    The median rent for a three bedroom also increased in the ACT to $460.00 per week, which represents a 9.5% increase from the previous quarter and 6.4% annual change.

    The median rents for four bedroom houses in Inner South (14%) and Inner Central (12.8%) saw the biggest increases, and median rents generally increased for all sized in all zones except two bedrooms in Inner Central, which decreased by 2.2%.  The vacancy rate, however, increased to 2.2%.

    Rental affordability consequently has declined in Canberra and 17.6% of a family’s annual income being required to meet rent payments.

    Other property

    Over this same period the price for other property in Canberra decreased by 1.2% to $425,000.00, but it was steady when compared to the 2015 year.  The median price for other dwellings increased only in Inner Central, while it dropped as much as 11.4% in the Inner South.  There were 365 sales of other dwellings in the December quarter, with the most in Inner Central and the least in the Inner South.

    The above figures show that the market has continued to be tightly contested.  To stay ahead of the curve, contact BAL Lawyers who can assist you with your property transactions.

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  • Internships: Experience vs Exploitation

    Internships: Experience vs Exploitation

    Internships can be valuable for employer and student alike. Beware, though, the legal pitfalls.

    Internships and work experience programs are commonplace in many industries. They can provide essential practical training for students and recent graduates, while giving employers a “trial period” in which to assess potential future employees. For less scrupulous companies, interns also represent a limitless pool of free labour. It is not surprising then that responses to an intern survey ranged from “valuable learning experience” to “slavery”.

    Regardless of the exact name or shape, all internship programs face legal risks. This is because Australian law maintains a binary conception of employment: an individual is either an employee, and thereby entitled to the full range of employment protections, or not. The current scheme has little room for lesser shades of employment: paid interns, unpaid interns and the like.

    It follows that where an employment relationship is objectively considered to exist between a company and an intern, the latter is entitled to pay and other benefits in accordance with the relevant award. Where proper remuneration has not been provided, the company risks legal action from aggrieved interns and prosecution by the Fair Work Ombudsman.

    The cost of turning a blind eye

    The ombudsman has been pursuing internship cases with vigour lately, successfully seeking a total of over $300,000 in penalties against several companies over the past two years.

    Penalties are usually imposed in addition to full payment of entitlements to the interns involved. While some of the penalties paid in early cases – $17,500 in one, $24,000 in another – may not provoke immediate fear, Judge Riethmuller sounded an ominous word of caution in a 2015 case involving media company Crocmedia.

    “There can also be little doubt,” the federal circuit court judge observed, “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.” In other words, turning a blind eye to the risks posed by internships will no longer suffice.

    Where’s the dividing line?

    Unfortunately, determining as a matter of law how an intern should be classified is fraught with difficulty, as neither case law nor statute offers a clear dividing line between employee and non-employee in this context. An individual’s attendance at a workplace for a matter of weeks in a predominantly observational capacity will not satisfy the criteria of an employment relationship.

    Conversely, a three-month program where the intern works regular hours and undertakes productive work in a position indistinguishable from junior employees will almost certainly amount to employment. Where the middle ground falls is unclear.

    Herein lies the dilemma: for an internship to be useful for both parties, interns need to be engaging in proper work and not simply sitting around ‘making coffee’. Yet that important characteristic is the very thing that exposes companies to risk. As the ombudsman explained: “Where the arrangement involves productive work rather than just meaningful learning, training and skill development, it is likely to be an employment relationship.”

    The obvious solution is to employ interns on a fully award-compliant basis – that is, to engage the individuals as short-term employees. However, in many cases this defeats the purpose and leaves little incentive for prospective employers to run such programs.

    Vocational placements

    A more comprehensive way to avoid these legal risks is to take advantage of the vocational placement exception in the Fair Work Act. This excludes from the Act’s coverage individuals undertaking unpaid work as a requirement of an authorised educational or training course.

    Aligning an internship program with a local school, university or training college would therefore be a prudent risk mitigation strategy. While such an approach may limit flexibility, this seems a small price to pay to ensure a legally compliant scheme.

    If the current oversupply of graduates in many professions continues, internships may become even more commonplace. In this context, companies need to tread carefully in devising and operating their own internship programs. When the various pitfalls are minimised, internships can be a valuable experience for both parties. Offered without due regard to the legal risks, an attempt to attract free labour can become very expensive.

    Written by John Wilson and First published in HR Monthly.

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  • Whistleblowers protection in Australia

    Protection for whistleblowers in Australia - A new era?

    “Nobody in Australia much likes whistleblowers…” (attributed to former NSW Police Commissioner Tony Lauer)

    2017 could prove to be a landmark year for a previously neglected aspect of Australian workplace law. Where those who blew the  whistle on corporate or public sector wrongdoing once faced retribution without legal protections, recent developments have underscored the need to comprehensively safeguard whistleblowers in this country. While the sentiment expressed by former NSW Police Commissioner Tony Lauer in the 1990s may still reflect the prevailing attitude in Australian workplaces, change is afoot.

    Late last year, in a political deal between the Coalition and crossbenchers to pass the double dissolution trigger legislation, strong protections for union whistleblowers were introduced. As part of the pact, the government also agreed to review public and private sector whistleblower protections with a view to enacting reform by 2018. In January 2017, the first ever case under whistleblower provisions in the Corporations Act 2001 (Cth) was filed against Origin Energy by their former compliance lawyer.

    If the applicant is successful, the implications for corporate Australia will be far-reaching. Elsewhere, the Public Interest Disclosure Act 2013 (Cth) — although far from perfect — has helped facilitate the reporting of public sector misfeasance and corruption by federal mandarins since coming into force in 2014. Improvements in this vexing field will inevitably be slow and controversial. It took two decades, six parliamentary inquiries, and a number of unsuccessful bills before the Public Interest Disclosure Act was finally passed. But with apparent domestic political will for greater whistleblower protections and impetus from developments in foreign jurisdictions, there is room for optimism — and a need for external lawyers and in-house counsel alike to be aware of the regulatory landscape.

    This article will begin by exploring the history of whistleblower protections in Australia, before considering three relevant laws which protect whistleblowers in different sectors. It will then consider the strategic utilisation of whistleblower legislation in employment litigation and the potential applicability of foreign laws to Australian whistleblowers, before concluding with a discussion of expected developments in the coming years.

    Continue Reading.

    Written by John Wilson and Kieran Pender. First published in Ethos.

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  • ACAT changes what are they and how do they affect you

    ACAT changes: what are they and how do they affect you?

    Many people, especially individuals and small businesses, may be familiar with the ACT Civil and Administrative Tribunal (usually referred to as the ACAT or Tribunal). With their focus on early alternative dispute resolution and proactive case management, the ACAT hears claims in a wide variety of areas, most notably civil disputes residential tenancy, mental health and unit titles claims.

    In December 2016 several changes were made to the Tribunal’s powers. The main change was an increase in the civil disputes jurisdiction of claims to $25,000, a significant increase from the previous maximum of $10,000. The ACAT website states the increase is to “ensure that the civil dispute jurisdiction of ACAT continues to be able to address the needs of the Canberra community.[1]

    A few months in, does it look like parties to an ACAT civil claim have benefitted from the changes? Below, we explain the updated procedures, crunch some numbers and provide our insights into how this may affect you.

    Different procedures

    To accommodate the widening of the ACAT’s jurisdiction, new procedures have been adopted to progress claims in a timely and cost-efficient manner. For contested claims up to $3,000, a Conference and Determination process has been implemented. The Tribunal will list the matter for a preliminary conference, with parties to file all material prior to the conference. If the matter is not resolved at the conference, it will usually be scheduled before a different ACAT Member on the same day for hearing.

    For those bringing claims over $15,000, the Tribunal may use the Conference and Evaluation process. Parties will be required to submit a case summary and position summary prior to a preliminary conference being held. If the dispute does not settle at the conference, the matter will proceed to a directions hearing where a timetable will be set to take the matter to hearing.

    Both processes are intended to assist in:

    • deciding the real issues in dispute between the parties; and
    • discussing and helping the parties reach a settlement before the hearing; or
    • having the matter listed for hearing in a swift and fair manner.

    One of the other changes affecting the civil claims includes the requirement for Presidential Members of the Tribunal to be eligible as Magistrates. Other interstate tribunals also employ a judicial head, so it remains to be seen whether this will change the culture of the ACAT, as some fear it may.

    Reasons for changes

    The dual purpose in raising the maximum jurisdiction was to:

    • improve access to justice to those for bringing claims beyond the previous $10,000 limit but still of relatively low value; and
    • alleviate some of the pressure on the Magistrates Court, which hears civil claims up to $250,000.

    It remains to be seen whether the increase in jurisdiction will see a larger number of matters being filed in the Tribunal rather than the Court. Between July 2014 and June 2015, 1997 matters were lodged in the civil jurisdiction of the Magistrates Court.[2] In comparison, the Tribunal’s 2015-2016 Annual Review, published a month before the changes were implemented, indicated a general downward trend in the number of civil dispute applications lodged as follows:

    ACAT

    Existing matters in the Magistrates Court which now fall into the Tribunal’s jurisdiction can also be transferred to the Tribunal on application by either of the parties. If the Court considers it to be the interests of justice to transfer the matter, it will make that order accordingly.

    The jurisdictional increase also brings the ACAT more in line with its interstate equivalents. For example, since May 2014 the NSW Civil and Administrative Tribunal (NCAT) has determined consumer claims up to the value of $40,000, an increase from its previous limit of $30,000.[3] In Victoria, the VCAT Civil Claims List can hear disputes for any amount of money that arise out of the purchase or supply of goods or services of any value (noting the claim must have a connection to the state of Victoria).

    The jury is out

    The change in the civil claims maximum to $25,000 took many by surprise. Whilst most had been expecting an increase, the 250% jump was far more than would be considered a proportionate increase in line with inflation.

    The move clearly had community support and good policy reasons behind it. However, the increase has also put more pressure many Tribunal users, especially sole traders and small businesses which regularly provide goods and services for under $25,000. As mentioned above, until recently the ACT Magistrates Court had jurisdiction of matters between $10,001 and $250,000. One of the key differences between the Magistrates Court and Tribunal is that the Tribunal is a “costs-free jurisdiction”, meaning that parties to an application must bear their own costs, including legal costs, unless the Tribunal otherwise orders.[4]

    Therefore, whilst a litigant could previously have expected to recover their legal fees along with a sizeable debt of, say, $20,000, this is no longer the case. Except in special circumstances, legal fees will have to be worn by the claimant, or they may consider prosecuting a claim without lawyers. Despite the Tribunal’s aim to be friendly to self-represented litigants, running an ACAT case from start to finish is often a daunting prospect for most.

    It remains to be seen whether the ACAT can handle the increased number of claims which have trickled down from the Magistrates Court, whilst upholding its key “cheap and fast justice” function. Watch this space for a full review when the annual figures are released. In the meantime, if you need help with an ACAT claim, or have any questions about your options, please contact Litigation. Bradley Allen Love assists clients, whether claimants or respondents to an application, in preparing their cases, advising in relation to required evidence and legal points which may arise as part of the claim, and can support or attend the Tribunal as required.

    [1] From: http://www.acat.act.gov.au/application-type/civil_disputes_and_common_boundaries/increase-in-civil-jurisdiction.

    [2] ACT Magistrates Court Annual Review 2014-15, from: http://www.courts.act.gov.au/__data/assets/pdf_file/0005/971321/act_magistrates_court_annual_review_2015.pdf.

    [3] Consumer Claims Regulation 2014 (NSW) regulation 4.

    [4] ACT Civil and Administrative Tribunal Act 2008 (ACT) section 48.

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  • agents beware: attorneys behaving badly

    Agents Beware: Attorneys Behaving Badly

    Tips for agents when receiving instructions from third parties and enduring powers of attorney.

    It is not uncommon for real estate agents to be approached by someone acting under a Power of Attorney on behalf of a registered proprietor.

    Where a registered proprietor has appointed an attorney under an Enduring Power of Attorney, it is important that the agent make some enquiries to ensure that person has the legal authority to provide instructions.

    We are living in an ageing population. It is fast becoming a luxury to remain in the family home until death. There is an increasing need for people to move into residential aged care facilities, where a standard method of payment is by way of a ‘Refundable Accommodation Deposit’ (RAD). A RAD is a lump sum payment that operates like a loan in favour of the particular aged care facility. The balance of the RAD is then refunded to the estate of the resident on their death.

    For many elderly people, it is not financially viable to fund a RAD without selling their main residence. To complicate matters, once an incoming resident elects to pay a RAD, they generally only have a period of six months to come up with the money. This increases the pressure on sellers, agents and conveyancers to efficiently bring about exchange and settlement of the property.

    An Enduring Power of Attorney is a legal document under which a principal appoints an attorney (or attorneys) to make decisions on their behalf. The document is ‘enduring’ in that it continues to operate even if the principal loses decision–making capacity. In the Australian Capital Territory, an Enduring Power of Attorney typically gives an attorney broad decision–making powers, including in relation to the property and financial affairs of the principal. It is possible for a person to have a valid Enduring Power of Attorney that grants no powers in relation to property. If an attorney does have powers in relation to a principal’s property matters, these powers may be of immediate effect, or, more often, the use of the powers is conditional on the principal having lost capacity.

    The first thing a real estate agent should do when approached by an attorney is request a certified copy of the Enduring Power of Attorney. The agent should then review the document and consider the following issues:

    1. Is the person giving the instructions actually appointed as an attorney?;
    2. Is the attorney granted powers over property matters?; and
    3. When does the attorney’s power come into effect?

    If the power is expressed to be conditional on the loss of capacity, the agent should go on to request some type of supporting evidence. Generally, a letter from the principal’s General Practitioner, treating Geriatrician, or other specialist is sufficient in this regard. Real estate agents should also be aware that where an attorney intends to act on behalf of a person who is entering into contracts for the sale, purchase or leasing of land, the Enduring Power of Attorney must be registered at the ACT Land Titles Office. All Enduring Powers of Attorney must be witnessed by a qualified witness. If you are unsure about any of the issues discussed in this article, or if you would merely like some peace of mind, it is a good idea to contact the person who witnessed the document. Often this will be the solicitor who drafted the document, and who has acted for the client previously in relation to their estate planning arrangements. It was only last week that we had a telephone call from a concerned real estate agent: “Joe Bloggs has turned up at our office waving a document and telling us to sell his mother’s house, including its contents”.

    A significant percentage of elder abuse is committed by attorneys (frequently adult children) appointed under an Enduring Power of Attorney. Aside from superannuation, the family home is often a person’s most valuable asset. Both of these facts highlight the importance of communication between real estate agents and solicitors, and the value in adopting a collaborative approach. As the saying goes, it is better to be safe than sorry. There are a few simple steps real estate agents can take when instructed by attorneys to protect not only themselves, but ultimately the interests of the vulnerable property–owner.

    The Estates & Business Succession Team of BAL Lawyers, a Corporate Partner of REIACT, can assist agents and agencies in reviewing Powers of Attorney. Please contact us to discuss.

    First published in the REIACT magazine.

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  • Termination employment policies and procedural fairness

    Terminating employment: pornography, policies, and procedural fairness

    When handled insensitively or without regard to the regulatory landscape, termination can open a Pandora’s box of potentially litigious grievances.

    Ordinarily, the use of employer provided equipment to access, download and/or store hard core pornographic material would represent misconduct. Unless the employee worked in the sex industry it would be difficult to contemplate that the viewing, downloading and/or storage of pornographic material represented proper, work-related use of the employer’s equipment. — Commissioner Cambridge in Croft v Smarter Insurance Brokers Pty Ltd.

    In late September, the Fair Work Commission delivered judgment in a seemingly remarkable unfair dismissal case. The employer had sought to rely on pornography found on the fired employee’s work laptop and mobile phone, discovered after termination, to justify the dismissal. While Commissioner Cambridge accepted that such actions constituted misconduct, he nevertheless concluded that a panoply of errors in the termination
    process meant that they did not constitute a valid reason for dismissal. The termination was therefore harsh, unjust and unreasonable, and an award of compensation was ordered — an eye-catching result given the applicant admitted using employer provided technology to download pornography.

    Croft is highly instructive, providing employment lawyers and employers alike with a range of lessons about how not to terminate employees. The dispute highlights the limitations on the ability of employers to justify
    dismissals based on information acquired post-termination, while also emphasising the importance of procedural fairness, rigorous policy mechanisms and consistency in workplace decision-making. This
    article will commence with an outline of Croft, before considering each topic in turn.

    Croft

    Mr Allan Croft was an insurance manager at a small insurance broking firm. His employment was ‘beset with difficulties from an early stage’ due to his ‘fractious’ relationship with the Directors of the employer. The employer alleged that Mr Croft was given several verbal warnings about underperformance and misconduct during his employment, but these were never particularised in written form.

    In January 2016, the employer dismissed Mr Croft. Rather than terminating on the basis of underperformance or misconduct, they sought to rely upon a contractual clause which purportedly permitted termination without cause on four weeks’ notice. Mr Croft subsequently filed unfair dismissal proceedings.

    In his decision, Commissioner Cambridge firstly dealt with the alleged ‘right to dismiss at will’. He held that a dismissal made without reason but solely reliant on a purported contractual right ‘would plainly subvert the statutory unfair dismissal laws, and also offend the broader common law position’. Commissioner Cambridge then considered whether Mr Croft’s accessing, downloading and storing of hard-core pornographic material on employer provided technology — the alleged misconduct discovered only after he had been dismissed — constituted a valid reason for the termination of his employment. On balance he decided — for reasons outlined below — that it did not. Accordingly, Mr Croft’s dismissal was found to be harsh, unjust and unreasonable, and $10,000 in compensation was awarded.

    Continue Reading.

    Written by John Wilson and Kieran Pender and first published in Ethos.

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  • Crown Lease

    Crown Lease in the ACT: What a strange Land it is! Sort of.

    Buying real estate in Canberra – the first thing you will notice is that you don’t actually buy the Land.

    The Australian Capital Territory (ACT), and in particular Canberra, offers an almost unrivalled standard of living and lifestyle. Its open landscape City plan facilitates ease (and speed) of travel throughout the Territory and provides  generous access to restaurants, cafes, parklands and the rural hinterland making it one of the most highly rated and liveable  cities in the world. Yet when you look at buying a stake in the ACT, you’ll be confronted with a somewhat different form of “land ownership” compared to that of its neighbours New South Wales  and Victoria, namely leasehold. The ACT’s leasehold system applies to all land in the Territory, other than National Land. Under the leasehold system, all land is owned by the Commonwealth and leased to residents of the ACT, meaning that all commercial, residential, rural and community title land is owned and leased by the Commonwealth and managed by the ACT Government. The terms of this leasing arrangement are set out in what’s called a Crown Lease.

    But the system, in practise, is not so alien. The Crown Lease sets out the terms and conditions for the “owner’s” (the “lessee”) use and occupation of the land, including the right to exclusive use and enjoyment of the land during the term of the Crown Lease. This is not so different to the manner of land use control exercised by state planning authorities, such as a “Council”. The Crown Lease however, dispenses with the often politicised approaches that can occur through “Council approval” processes.

    Before entering into a “Crown lease”, there are some points to consider:

    Length of Crown Lease

    Ordinarily, the term (or length) of a Crown Lease in the ACT will be 99 years. So, although the money you’re coughing up for your house may not buy you the land, you will be buying the right to use the land for the term of the Crown Lease. For most purposes, there is no practical difference between the use of the Crown Lease in the ACT and other title systems in Australia, a Crown Lease can be sold, mortgaged or devised under a will.

    But then what? 

    Although most residential Crown Leases in the ACT are granted for a term of 99 years, the term will not be renewed upon your purchase of the Crown Lease. You will instead acquire the balance of the term of the Lease.

    Upon expiry of the term of the Crown Lease, provided that the land is not required by either the Territory or the Commonwealth and the terms of the Crown Lease provide for a renewal, you may apply for a renewal of the Lease. The first renewals are approaching and there is every political and social reason to expect that these leases will be seamlessly renewed; in fact, many Crown Leases have already been renewed for valuation or sale purposes, as mortgagees often require that you apply for a renewal if the term of the Crown Lease is set to expire with 25 years.

    Development conditions

    When considering buying vacant land in the ACT, you should seek a copy of the Crown Lease as it will contain development conditions and construction timeframes. You can also check the Lease and Development Conditions Register. This will allow you to see building, lease and development conditions prepared for the blocks – the Environment and Planning Directorate must approve these conditions.

    Lease availability

    For new blocks of land, or areas that are still being developed, Crown Leases will not be issued until all necessary services, roads and other civil works around the area are completed. In this instance, you will not become the registered owner of the land until the works are complete and the Crown Lease has been granted and registered at the ACT Land Titles Office.

    As you will not be the registered owner until the Crown Lease has been granted, you may find it difficult to borrow money from a bank or other financial institution, and will not be able to build on the land, until the Crown Lease is granted. In most instances, a specimen (or draft) Crown Lease will be attached to a Contract for Sale to assist you to determine what you are buying and to obtain finance (where necessary).

    Costs

    The rent to be paid by an owner (or lessee) under a residential Crown Lease will be 5 cents if and when demanded” (no demand has yet been made), but some, and typically commercial or rural leases have substantive land rent.  Such leases are subject to payment of an annual land rent charge billed quarterly; however, lessees have the option of paying weekly, fortnightly, monthly or quarterly.

    Selling your leased block?

    As the lessee under a Crown Lease, you can sell your interest in the Crown lease provided you have complied with all building and development conditions contained in the Crown Lease, or you must otherwise obtain consent from the relevant Minister to the sale of the land.

    In short, if you are looking to buy real estate in Canberra under the modern land ownership leasehold system and get a new Crown Lease on life, consider the points above and seek advice as to your rights and obligations. If you’ve finished this article, and are still wondering about the strange land laws of the ACT, please contact the team at BAL Lawyers, as we can answer any questions you might have regarding leases in the ACT.

    First published by Capital Express.

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  • Designated responsibility supervision duties of a law firm

    Designated responsibility: the supervisory duties of a law firm principal

    It is a breach of the Solicitors Conduct Rules to allow an employee to have conduct of a matter without reasonable supervision. This article considers two matters relating to the duty to supervise.

    The Legal Profession (Solicitors) Conduct Rules 2015 contain an express duty for solicitors with designated responsibility for a matter to exercise reasonable supervision over all employees engaged in the provision of legal services for that matter. This is a non-delegable supervisorial responsibility.

    Allowing an employed solicitor, clerk,paralegal, or any other employee to have the conduct of a matter without reasonable supervision breaches that rule and, depending on the seriousness of the failure involved, may constitute unsatisfactory professional conduct or professional misconduct, especially in financial matters.

    Supervisors’ duties

    Kelly v Jowett [2009] NSWCA 278 (4 September 2009)

    This case was an appeal from a Family Provision Act matter where an employed solicitor handling the matter in the first instance had, among other things, deliberately and consistently flouted the Court’s orders and directions, and had failed to file affidavit evidence in the matter. The Court of Appeal considered whether there had been a failure by the firm to supervise the employed solicitor.

    The employed solicitor signed a notice of appearance as the solicitor on record. During the conduct of the matter he failed to keep the client appraised of the progress of the matter, failed to comply with undertakings to file affidavit evidence
    within defined times, gave the clients 20 minutes’ notice of a Court ordered mediation (which the client was unable to attend due to the late notice), and had failed to inform the clients of the hearing because he had told them he would be seeking an adjournment. The employed solicitor appeared at the hearing, without the clients, and gave submissions.

    In short, the carriage of the matter was left entirely to the employed solicitor. The partners of the firm did not take any direct role in supervising the employed solicitor’s conduct of the matter. This remained the case even after the partners knew of the employed solicitor’s unreliability and his serial delinquency in complying with the Court’s directions. The partners told him “This file is your mess, clean it up”.

    By the time of the Appeal judgment, the employed solicitor was no longer practising. Other solicitors within the firm described the employed solicitor’s conduct in intra-firm communications as “woeful”.

    Keep Reading.

    First published in Ethos.

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  • HR-Human-Resources-Bully-Harassment

    Bullying and Harassment: The New Black in HR

    Being a HR manager, there will often be times you have to deal with employees not getting along.

    You may be dealing with employees complaining about being bullied, requests to be moved to different office locations, claims of unfair work loads and staff taking long breaks.

    These situations can get out of hand very quickly if not dealt with swiftly.

    To illustrate some of the do’s and don’ts of how to deal with bullying claims at work, watch the case study video below that follows Sarah, Jim and Julia through their tales of bullying. This tale is based on a true story, but for education purposes only, of course.

    The video highlights Sarah’s story as a manager at an accounting firm, and her actions around some of the employees she supervises.

    Jim thinks Sarah is putting too much pressure on him and makes a bullying complaint to the HR Manager.

    Julia makes a complaint to HR that she is being bullied by Sarah her as well, citing that Sarah ‘monitors her breaks’.

    Sarah, in turn makes a complaint about the two employees that have made unsubstantiated bullying accusations against her, she also feels that they have been spreading rumors about her.

    The claims end up in front of the Fair Work Commission, who note that these issues should have been dealt with on a HR level, and not have been allowed to escalate to this point.

    Bullying at work occurs when: a person or a group of people repeatedly behaves unreasonably (objectively!) Towards a worker or a group of workers at work, and the behaviour creates a risk to health and safety.

    Take Note: bullying does not include reasonable management action carried out in a reasonable manner.

    It is important to refer to your office bullying and harassment policy, to make sure you are treating employees fairly and reasonably.

    If you need help dealing with bullying and harassment claims at work, please contact the employment team.

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  • The midwife who breached a mother's confidentiality: lessons for public servants

    The midwife who breached a mother's confidentiality: lessons for public servants

    Public servants must comply carefully with their confidentiality obligations, a recent case highlights.

    An employee, whether in the public or private sector, has obligations of confidentiality to their employer. The extent of these obligations varies significantly, depending on the nature of the job, the employer and the information at issue. The onus of confidentiality has a multitude of sources, arising from legislation, contract and the law of equity: this combination, it has been said, “is an unhappy mixture”.

    Our starting point, as usual, is the federal Public Service Act. The Australian Public Service’s code of conduct imposes a range of requirements with relevance to confidentiality: public servants must “behave honestly and with integrity”, “act with care and diligence”, “comply with any lawful and reasonable direction” and “maintain appropriate confidentiality about dealings that the employee has with any minister or minister’s member of staff”. Similarly, federal government staff must “at all times” comply with the APS values, one of which is that “the APS demonstrates leadership, is trustworthy and acts with integrity, in all that it does”.

    Beyond these legislative obligations, public servants – like ordinary employees – have duties of confidentiality arising from their employment contract. These can be express or implied. The twin implied duties of “loyalty and fidelity” and “confidence” impose requirements on employees not to misuse information gained in the course of their employment. Both duties also have alternative underpinnings in the law of equity, such that the exact shape of these confidentiality obligations is frustratingly nebulous.

    This uncertainty is compounded in the public sector context because of the special nature of such employment, and a lack of judicial clarity as to whether the duties should be altered to reflect that character. As Federal Court Justice Paul Finn explained in 2003, “there is no significant Australian jurisprudence on how the duty is to be adapted to accommodate the distinctive demands of public service employment that result from the ‘special position’ [that] … public servants enjoy … This is not the place to essay the significance that ought be given to the precepts of loyalty, neutrality and impartiality which are hallmarks of a public service … My only comment would be that to consider the duty in a setting such as the present without regard to such precepts would involve a flight from reality.”

    While such high-minded concepts were not at issue in the recent South Australian Industrial Relations Commission case of Kore v chief executive, Department of the Premier and Cabinet, the judgment provides an instructive example of the confidentiality obligations imposed on government employees.

    In Kore, a midwife at a public Adelaide hospital, Erin Kore, sought out information about a newborn baby and then passed these details on to a personal friend, the baby’s father. While the midwife knew the mother and father were no longer in a relationship, she was apparently unaware of a past history of aggressive behaviour on the father’s part. The mother soon drew this breach of patient confidentiality to the hospital’s attention, citing safety concerns for herself and the baby, and the midwife was suspended pending an investigation into alleged breaches of South Australia’s code of Conduct equivalent.

    Kore was later sacked, and brought proceedings claiming the dismissal was harsh, unjust or unreasonable. She argued there were numerous mitigating circumstances: the midwife otherwise had an exemplary record, this was a single isolated incident, she had shown contrition, cooperated and had not acted maliciously. While commission Deputy President Karen Bartel accepted many of these arguments, she ultimately denied Kore’s application: “It is with some regret that I am unable to conclude that the dismissal was harsh, unjust or unreasonable.”

    Three of Bartel’s observations are noteworthy. First, the hospital asserted that Kore had no valid reason for accessing the information from the birth register, despite the fact that reviewing the register was an ordinary part of her role. Bartel wrote: “I do not accept the respondent’s view that the applicant should have skimmed past the entries for Ms H in the birth register … This criticism is not realistic … The issue is not that she became aware of the details, but that she disclosed them”.

    Moreover, Bartel emphasised that the employee’s position will be a highly relevant factor. That Kore had obligations under the code of ethics for midwives in Australia and that maintaining the confidentiality of patient health information was an integral requirement of her role both weighed heavily in Bartel’s decision. “The applicant’s conduct,” Bartel wrote in her concluding remarks, “took place in the context of professional obligations upon her, which emphasise the importance of trust and confidentiality”.

    Finally, consonant with Finn’s comments above, Bartel stressed the importance of context in determining the gravity of a confidentiality breach. She wrote: “The nature of public sector employment carries with it obligations which do not exist in the private sector because of the public accountability requirements of government.”

    Yet the public service’s special nature cuts both ways. Public servants may have greater duties than private sector employees, but these duties are ultimately owed to the Australian people, not a particular department or manager. The necessary consequence is that there will occasionally be situations where disclosure of confidential information is in the public interest, even if – were it to take place in the private sector – it might represent a breach of confidentiality. That was not contended in Kore for obvious reasons, but such cases have arisen previously.

    The law’s response to this conflict is uncertain. Finn once hinted that, in cases where the implied constitutional protection of political communication is invoked, it might not be proper for the federal government to rely on a duty of confidentiality. Elsewhere, it has been suggested that the public interest in the disclosure of “iniquity”, whether criminal, civil or political wrongdoing, “will always outweigh the public interest in the preservation of private and confidential information”.

    APS employees should take due care to abide by their confidentiality duties, particularly given the unsettled legal position. As Kore shows, breaches can happen inadvertently and even when the individual believes themselves to be acting in good faith. However, confidentiality should not silence public servants when the public interest demands otherwise.

    Judicial luminary Anthony Mason deserves the final word. As he explained in the High Court’s 1980 Commonwealth v John Fairfax & Sons Ltd judgment: “It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticise government action.”

    First published in the Canberra Times.

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  • Why play by the rules? fair is fair, isn’t it?

    Why play by the rules? fair is fair, isn’t it?

    Despite the fact that people care more about the result of the final Saturday in September than the goings-on in Parliament, the AFL does not wield governmental power (though the AFL might wish otherwise). How then did James Hird allege that he was denied procedural fairness when the question of whether he breached the rules was determined? While those proceedings were ultimately discontinued, it raises the question of whether procedural fairness applies to private organisations.

    Historically, procedural fairness has been a common law right that applied only to governmental powers that, when exercised, negatively affected the rights or interests of an individual. Where certain decisions are made, procedural fairness operates so that the decision must be reached in a fair manner.

    More recently, the courts have begun to expand the role of procedural fairness and have applied it to companies and private organisations. The classic example of decisions affecting individuals is where members or employees are suspended or terminated (e.g. for supplying performance enhancing supplements).

    The key procedural fairness principles to keep in mind are:

    • the hearing rule –the organisation must inform the individual of the case against them. It encompasses a right to be heard, giving the person an opportunity to reply to the allegations against them and present their case;
    • the bias rule –the decision-maker must not have a personal interest in the matter or even the appearance of bias. This can sometimes be difficult in the case of smaller = organisations where all the members or employees know each other; and
    • the no evidence rule – all decisions must be based on logically probative evidence.

    The hearing rule has an added benefit, in that it can give the decision maker advance warning of the defence to be made and highlight any weaknesses in their own case.

    So why does procedural fairness apply to private organisations? For government decisions, the duty was implied into legislation, rather than expressly provided for. In much the same way, the duty arises from the rules of the particular organisation being construed on the basis that fair procedures are intended. Express words in the rules can operate to exclude the duty, but if the rules are silent it is likely that procedural fairness will apply.

    It is important to remember that the critical question for procedural fairness is not whether the ultimate decision is fair; it is whether it was reached fairly. The best practice is to assume that procedural fairness will apply to decisions that negatively affect the rights or interests of an individual. You should have proper procedures in place so that decisions of this nature are made in a procedurally fair manner; if you don’t play by the rules, you may end up with a decision that does not stand.

    First published in B2B magazine.

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  • Lewd jokes and explicit images navigating the workplace sexual harassment minefield

    Lewd jokes and explicit images: navigating the workplace sexual harassment minefield

    When can an employee be dismissed for workplace sexual harassment? Public and private sector employers have cause for concern following several recent contradictory tribunal decisions.

    The gravity of workplace sexual harassment changed in Australia in July 2014. While at a societal level it has long been accepted that such conduct cannot be tolerated, the law lagged behind. Suing an employer for its failure to prevent sexual harassment was costly and rarely led to a sufficiently large award of damages to justify the financial and emotional expense.

    That changed three years ago. The Full Court of the Federal Court’s landmark judgment in Richardson v Oracle Corporation Australia Pty Ltd significantly increased the range of damages available in sexual harassment cases. Compensation in the order of $10,000-$20,000 was suddenly replaced by $100,000 and above, jolting employers into action for fear of costly litigation and significant liability.

    The result, to speak generally, has been a greater responsiveness to sexual harassment complaints, more thorough investigations and harsher sanctions (including termination) for perpetrators. For the most part, this cultural change has been rewarded. Two recent unfair dismissal cases have reasserted that serious sexual harassment warrants dismissal.

    Workplace culture no excuse

    The applicant in Torres v Commissioner of Police was terminated on the grounds that he had engaged in a pattern of lewd behaviour, particularly with junior employees. His indecent conduct included serenading a colleague with a song about anal sex, bragging about his genital piercings, asking a junior employee “do you want to suck my c*ck” and making vulgar comments about female visitors.

    The applicant claimed that this was all “innocent joking”, and not out of place in the particular workplace. He offered: “At work we have a culture, in the police I call you a name and you call me a name, we swear at work and everything and all that they used against me. I do swear at work but so does everybody else”. These comments fell on deaf ears, with the tribunal holding that the dismissal was fair. Neither the fact that he had never received harassment or code of conduct training nor that he was a decorated senior special constable swayed the tribunal.

    In Applicant v Respondent, an airline dismissed a cabin crew supervisor after the applicant showed explicit images of a colleague to other colleagues and made inappropriate sexual comments. The cabin crew supervisor, like the police commissioner, pleaded that his actions were in keeping with the workplace culture. He argued that it was “common for there to be discussions of a sexual nature while at work”. These pleas were ignored, and the Fair Work Commission found that the employee’s dismissal was not harsh, unjust or unreasonable.

    The above two cases are examples of egregious workplace conduct handled appropriately by the employers, and subsequently upheld by workplace tribunals. Read together, they strongly condemn the use of ‘workplace culture’ as an excuse for poor behaviour and support employers taking swift action in the face of blatant sexual harassment.

    An outlier?

    However, another recent Fair Work Commission decision is hard to reconcile with this trend. In Renton v Bendigo Health Care Group, Commissioner Michelle Bissett found that an employer was harsh for dismissing a nurse who had tagged two colleagues in a sexually explicit video on Facebook.

    Indeed, it is difficult to understand how the actions of the airline employee or senior constable differ wildly in crudity from the behaviour of the nurse in this case. The applicant had shared a video of an obese woman in her underwear ‘dropping’ her stomach onto a man’s back. He captioned this video “[Colleague 1] getting slammed by [Colleague 2] at work yesterday”. The nurse also left tissues and ‘blobs’ of white sorbolene cream on the desk of one of the colleagues tagged in the video, to make it appear — so the employer alleged — that the colleague had been masturb*ting.

    The commissioner was initially sympathetic to the hospital, noting that the matter required a “swift and strong response”. Yet given the Facebook incident was a “one-off” and that previous “jokes” along the same theme as the sorbolene cream incident had not given rise to a reprimand, the dismissal was deemed harsh and an order for compensation made.

    Which approach to take?

    How are employers to proceed in the face of such contradictory decisions? Notwithstanding Bendigo Health Care, it would be advisable to err on the side of caution. That case seemingly represents an outlier, rather than the rule.

    APS departments should adopt a two-pronged approach. HR professionals should ensure strict adherence to the procedures and processes created by the relevant policies, which are designed in accordance with the APS Code of Conduct. At the same time, actions taken should be proportionate and those involved must be afforded procedural fairness. While the administrative apparatus that accompanies Code of Conduct investigation in the APS should, in theory, ensure proportionality and procedural fairness, we see too often that this is not the case.

    Sexual harassment is serious issue. Following Richardson, employers — whether public or private — are on notice that such conduct cannot be tolerated, and that the onus is on them to prevent its occurrence in the workplace. Employers must tread carefully when navigating the sexual harassment minefield.

    Written by John Wilson, with the assistance of his colleagues Rebecca Richardson and Kieran Pender.

    First published in The Mandarin.

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  • When life gives you lemon

    When life gives you lemons - Australian Consumer Law

    Australian Consumer Law remedies for dodgy vehicles

    A recent study by the Australian Bureau of Statistics found that approximately 71% of Australians primarily use vehicles to commute and 88% use a car to get to places other than work.[1] Unfortunately, as many as two-thirds of new car buyers have experienced problems with their vehicles in the first 5 years of use.[2] What happens when your hard-earned car is a lemon?

    In Australia, consumers are protected by the Australian Consumer Law, contained in the Competition and Consumer Act 2010 (formerly known as the Trade Practices Act 1974), which provides a number of guarantees, including guarantees as to:

    • acceptable quality; and
    • fitness for any disclosed purpose.

    These guarantees are implied by law into all purchase agreements for goods priced under $40,000 or acquired for personal, domestic or household use.  This includes cars purchased for personal or family use. Whether under warranty or not, cars must comply with certain standards so as not to breach the guarantees. The above two guarantees are explored further below.

    Acceptable quality” means that goods must be safe and free from defects, amongst other things. This encompasses a range of potential problems that could occur with a car, from engine issues to more minor concerns such as appearance. However, this guarantee does not cover defects which the consumer knew about prior to purchase or damage due to abnormal use.

    The guarantee as to fitness for any disclosed purpose means that goods will be reasonably fit for:

    • a particular purpose for which the goods are being bought, made known to the supplier; and
    • any purpose for which the supplier represents the goods will be reasonably fit.

    This provides another, more specialized, layer of protection in addition to the guarantee as to acceptable quality. For example, a car acquired from the dealer for regular family camping trips should be able to handle off-road terrain; the sale of a car which cannot could be in breach of the Australian Consumer Law, despite the car being otherwise in good working order.

    Where a guarantee has been breached, the failure to comply with the Australian Consumer Law can be classified as either a major or a minor failure. The remedies available to the buyer differ according to this classification. Whether a failure is major or minor will depend on the circumstances; however, a major failure occurs where:

    • the consumer would not have purchased the goods had they known of the failure;
    • the goods are unfit for purpose and cannot be remedied within a reasonable time; or
    • the goods are unsafe.

    Cars that undergo multiple repairs may indicate that there has been a major failure to comply with consumer guarantees.

    Remedies available include requiring the supplier of the car to remedy the failure (if minor) or rejection of the car, with a corresponding right to compensation. Consumers may also recover damages for any reasonably foreseeable loss or damage suffered by reason of the failure.

    So what can you do if you suspect your car is a lemon?

    1. Consider the issues. Is there a small fault or is there a serious safety concern?
    2. Contact the supplier. In the first instance, depending on issue, the supplier may seek to remedy any defect. This communication is best done in writing so you can keep a record.
    3. Know your rights. If a remedy isn’t forthcoming or the car is a true lemon and the problems remain unresolved, you may have a right to reject the vehicle and claim compensation.

    Often these matters are resolved in the early stages without recourse to litigation, but sometimes something more is required to get the solution you need. If you are experiencing difficulties or the manufacturer or dealer is dragging the chain in fixing your car, let us know if you need help. If life gives you a lemon, there are protections available – so don’t settle for lemonade.

    [1] http://www.abc.net.au/news/2014-02-03/two-in-three-australians-drive-to-work-study-of-commuting-habit/5233950

    [2] http://www.smh.com.au/business/retail/owners-of-lemon-cars-are-struggling-to-use-their-consumer-rights-to-end-nightmare-20160311-gngmhs.html

    If you have a problem with a lemon car, or have any questions about your options, please contact Laura Scotton, Litigation.

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  • Amalgamation gives Council ‘Get Out of Jail Free Card’

    Amalgamation gives Council ‘Get Out of Jail Free Card’

    In a decision handed down by Moore J on 2 February 2017, the Land and Environment Court has held that the amalgamation of two Councils effectively put an end to a criminal prosecution brought by the EPA for an environmental offence committed by one of the Councils prior to the amalgamation.

    The EPA had commenced criminal proceedings against the former Wellington Shire Council on 21 April 2015 for an offence of “causing water pollution” in breach of s.120 of the Protection of the Environment Operations Act 1997.  The old Council entered a plea of guilty to the charge but a sentencing hearing for the offence had not been held when, on 12 May 2016, the Local Government (Council Amalgamations) Proclamation 2016 was made.  That Proclamation dissolved both the old Council and the former Dubbo City Council and constituted a new Council now known as Dubbo Regional Council.

    The Proclamation contained a number of provisions to give effect to the amalgamation, including provisions transferring a range of staffing, financial and legal responsibilities to the new Council.  One of those provisions expressly provided that any proceedings relating to the assets, rights or liabilities commenced against one of the old Councils and pending immediately prior to the amalgamation were to be taken to be proceedings pending against the new Council.

    Following the amalgamation, the new Council applied to strike out the EPA prosecution.  The Council’s position was that clear words would be required in the Proclamation to result in the criminal liability of a former Council being transferred to the new Council. It argued that, in the absence of express statutory provision and clear language, it was ‘inconceivable’ that a legal person not in existence at the time of the alleged offence, could be found to be criminally liable for an offence alleged to have been committed by another person.

    The Court accepted the Council’s argument, holding that clear and express language would be necessary to have the effect that criminal proceedings commenced against a former Council could be continued against the new Council.  The Proclamation transferring assets and liabilities to the new Council should therefore be taken to have transferred only civil liabilities, not criminal ones.

    A second Proclamation was made on 9 September 2016, the Local Government (Bayside) Proclamation 2016.  Although the primary purpose of this Proclamation was to dissolve the former Councils of Rockdale and Botany Bay, it also contained a number of amendments to the first Proclamation.  One of those amendments was a new provision that expressly transferred criminal liability from dissolved Councils to newly constituted Councils.

    Section 736 of the Local Government Act 1993 permits the amendment of a Proclamation by the Governor but expressly provides that, except with the consent of the relevant Council, such an amendment is not to affect anything done before the publication of the Proclamation.  The Court found that these provisions meant that the second Proclamation could not have the effect of transferring criminal liability to the new Council unless the new Council had agreed to that occurring, which it had not.

    In those circumstances, the Court struck out the prosecution that had been brought against the former Wellington Shire Council by the EPA and the Council was effectively given a ‘get out of jail free’ card.

    If you have any questions about Local Government Law, or about the proceedings above, please contact Alan Bradbury.

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  • PPSA Gas Turbine

    How to lose US$44 million in 344 days - PPSA

    The Personal Property Securities Act (PPSA) has done it again!

    In a decision handed down on 6 February 2017 the NSW Court of Appeal found that the lessor of goods had failed to perfect their security interest in circumstances where the PPSA applied and, as a result, lost title to $US44 million worth of equipment.

    Under the PPSA if a person supplies goods on credit or leases goods then they can (and should) register a ‘security interest’ to protect their ownership of the goods until either (1) the goods are fully paid for or (2) the lease comes to an end and the goods returned. Registering a security interest on the Personal Property Securities Register ‘perfects’ their rights and puts the world on notice that it claims an interest in the goods. The PPSA is about registration; it is no longer about ownership rights.

    In this case, on 5 March 2013 General Electric International Inc (GE) agreed to lease four mobile electricity generating gas turbines to Forge Group Power Pty Ltd (Forge Power) for two years. The turbines were delivered and installed to a temporary power station. GE sold part of its leasing business to Power Rental Op Co Australia (Power Rental) and took ownership of the turbines in October 2013, even though the turbines were physically at the Forge Power site.

    As luck would have it, voluntary administrators were appointed to Forge Power on 11 February 2014.

    Under the PPSA unless you have a perfected security interest, when an administrator is appointed title in goods that are leased by the company can vest in the administrator. At no point did GE or Power Rental register on the PPSR, even though they had approximately 344 days between the start of the lease and the date of the administration to do so.

    The administrators claimed that because there was no perfected security interest, and the lease of the equipment was a ‘PPS Lease’ they now owned the turbines (worth approximately US$44 million). In order to get their turbines back Power Rental argued that because the turbines had been fixed to the land, they were not ‘personal property’ and the PPSA did not apply to them.

    So what was the decision?

    The Court of Appeal held that the turbines did not become ‘fixtures’ to the land. As the turbines were not ‘fixtures’ the PPSA did apply, the lease of the turbines was a PPS Lease and should have been registered. As neither GE nor Power Rental registered or perfected their security interest, they lost title to the turbines.

    If you supply goods on credit or you lease or hire goods then you can (and should) register a security interest – don’t assume you are protected.

    A copy of the decision is available here.

    If you have any questions regarding the PPSA or the PPSR, contact Katie Innes.

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  • Taking the piss misconduct - BAL Lawyers

    Taking the piss: 'serious' misconduct in the Australian Public Service

    Allegations of misbehaviour must be handled with great care, as a recent case shows. Serious misconduct in the workplace is no laughing matter. It takes effort, though, to suppress a chuckle when reading the recent Fair Work Commission case of Walia v Citywide Service Solutions. Notwithstanding its private sector context, Walia offers a reminder about the care needed when managing code of conduct allegations and provides a timely opportunity to revisit the Australian Public Service’s misconduct process.

    The applicant in Walia was employed by Citywide as a garbage-truck driver, operating in the Melbourne CBD. In June 2016, Bobby Walia was midway through a 10-hour shift when a City of Melbourne inspector spotted him urinating in a laneway. The inspector issued Walia with an infringement notice for public urination.

    Walia notified his employer of the incident, who were understandably concerned. Walia said he had urgently needed to urinate but found it difficult to park his garbage truck near a public toilet. Citywide determined that, as Walia’s actions were against the law and had the potential to cause reputational damage to Citywide, it would terminate his employment for serious misconduct. Walia promptly sought unfair-dismissal relief.

    Commissioner Michelle Bissett began her consideration of the dispute by observing: “There have been many (perhaps too many) decisions of the commission where an employee has had his employment terminated for urinating other than in the toilet.” She held that, while Citywide had a valid justification – “[Walia] provided no cogent reason why he did not stop to go to the toilet before it became urgent” – the dismissal was nevertheless harsh. Termination was “disproportionate to the gravity of the misconduct”, especially given that Walia had immediately self-reported and shown contrition, and that termination would also have an inordinate adverse impact on him. Accordingly, Bissett ordered Walia’s reinstatement.

    Had the applicant in Walia been a federal public servant, his misconduct would have been dealt with under the APS code of conduct and the relevant agency guidelines. I have dealt with the minutiae of code disciplinary investigation on many occasions before, and don’t propose to do so again here. The Public Service Commission’s 2015 Handling Misconduct: A Human Resource Manager’s Guide and the Australian Government Solicitor’s 2014 Misconduct in the Australian Public Service legal briefing are both good starting points.

    The key takeaway point from Walia, though, is that conduct considered by the employer to constitute serious misconduct does not axiomatically justify termination. While the label “serious misconduct” is often used in the APS context, it must be noted that the term does not appear in the Public Service Act. Notwithstanding the concept’s origins in the common law – and it is well accepted that, absent a legislative framework, an employer can summarily dismiss an employee for a single act of “serious misconduct” where it is fundamentally inconsistent with the continuation of the employment contract – termination on such a basis could still fall foul of the unfair-dismissal protections.

    Moreover, it should always be borne in mind that the APS misconduct regime is protective rather than punitive. Sanctioning public servants can only be done to protect the public, maintain proper standards of conduct within the APS and uphold the service’s reputation. Too often, this protective purpose is forgotten in a rush to punish misbehaviour. In the Walia case, the incident occurred in sight of an apartment block, giving rise to a reputational hazard. However, had Walia’s public servant equivalent urinated out of sight behind a corner, imposing anything more than a reprimand would be questionable.

    There is, though, one notable exception that deserves consideration. Employees at the Australian Criminal Intelligence Commission, Australian Federal Police and Australian Border Force are all subject to a peculiar provision in their respective originating legislation. Where the agency head reasonably believes that the conduct of a terminated employee amounted to serious misconduct, and this conduct had or is likely to have a damaging effect on the agency’s reputation or staff morale, they can make a declaration. This declaration precludes the Fair Work Act from applying to the termination, such that the terminated employee can’t lodge an unfair dismissal claim or demand payment in lieu of notice.

    While the specialised nature of the Australian Criminal Intelligence Commission or the AFP may justify this limitation, its introduction in the Australian Border Force Act means thousands of public servants are now at risk of losing their right to challenge a termination. The explanatory memorandum’s justification was hardly persuasive: … in instances of serious misconduct … the application of the Fair Work Act can impact on the ability of the secretary to both quickly and decisively remove an APS employee … For example, a review of the dismissal that results in the person having to be reinstated may send a mixed signal to the community or the workforce about the tolerance of serious misconduct within the department.

    The latter proposition borders on the absurd: an employee would only be reinstated should the commission determine they had not committed the misconduct, or there were compelling mitigating circumstances that make the termination “harsh”. Suggesting this eventuality would be destructive of public confidence in the Border Force is tantamount to arguing that appeal rights in criminal cases should be removed because an overturned conviction undermines faith in the prosecutor’s office.

    Thankfully, terminated Border Force staff who are subject to such a declaration can still challenge the misconduct finding (and, indeed, the declaration itself) via judicial review. Nevertheless, this development is deeply troubling, and unlikely to lessen red tape for affected employees – or the public service generally – in resolving nasty workplace disputes.

    Managing misconduct is rarely easy, and often reasonable minds will differ on the appropriate response to misbehaviour in the workplace. To some, the decision in Walia might be “taking the piss” and offer yet another example of the Fair Work Commission’s employee-friendly nature; to others, Citywide’s initial handling of the incident would be considered grossly excessive and the ultimate outcome entirely just. For those managing misconduct in the APS, adopting a proportionate and procedurally fair approach should prevent headline-grabbing outcomes like that in Walia.

    First published in the Canberra Times.

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

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  • cycling liability

    Picking Up the Pieces - Liability Cover for Accidents Caused by Your Negligence

    Are you financially prepared for a major accident outside the boundary of your home caused by you?

    Does your home and contents insurance policy provide liability cover if you cause injury or death to another person in an accident?

    Though most Australians insure their homes, more than one-third do not insure their contents.  Contents insurance covers the financial cost of repairing or replacing your household personal possessions and furnishings such as curtains, furniture, white goods, stereo, TV, computers and other electrical appliances, clothing, jewellery, sporting equipment and even toys.

    It is important to check that the home and contents insurance includes liability cover to protect against financial loss if your actions or your negligence is found to cause a person to be injured or killed.

    The insurance should cover two key financial risks.  One is the compensation that you may be ordered to pay the injured party, plus their legal costs if a claim against you is upheld.  The second is the legal cost of defending a claim.  Ordinarily the level of coverage for all claims from any one incident under contents legal liability cover should be at least $10 million including all associated legal costs. Some policies will provide coverage of up to $30 million for public liability.

    The importance of checking your home and contents insurance cover was recently highlighted when the ACT Supreme Court ordered a cyclist to pay nearly $1.7 million in damages to a fellow cyclist who was knocked off his bike and hit by a car when the cyclists side by side collided on their way home from work.

    At the time, the cyclists were riding on a major road in a designated cycling lane after dark. The wheel of the offending cyclist struck a wooden stake lying on the cycle-way.  The accident occurred during the evening peak hour in winter when there was adequate lighting; which the court found would have allowed the offending cyclist to see the wooden stake.  The primary judge found that the offending cyclist should have seen the wooden stake in adequate time to take evasive action had he been keeping a proper look out for objects on the cycle-way.

    The offending cyclist appealed the decision that he had breached his duty of care and caused injury and financial loss to his fellow cyclist on the grounds that the findings against him were based on inadequate evidence about flawed lighting, and that expert evidence was required to show that he failed to exercise reasonable care.  He also argued the primary judge did not properly explain his reasons for finding the accident was avoidable.  The ACT Court of Appeal found that none of the challenges to the primary judge’s findings were supported by the evidence.  Special leave to appeal to the High Court was refused.

    The subsequent publicity surrounding the case, as it was widely reported in the Canberra media, resulted in an increase in the membership of the local cycling group Pedal Power ACT which automatically provides insurance coverage for its members.

    Fortunately, the negligent cyclist had insurance protection under his general home and contents insurance policy which provided liability cover for his fellow cyclist’s injuries. Certainly, cyclists should have insurance protection against liability to others, in their own interest as much as for the victims of anyone they negligently injure.  Whilst this may be a benefit of membership of a local cyclist organisation, it is prudent to check whether this coverage exists as part of a home and contents insurance policy.

    Written by Bill McCarthy, Special Counsel, Insurance Law & Liability.

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  • BAL-WhistleBlower

    Is 2017 the year of the whistleblower?

    Proposed changes to the Public Interest Disclosure Act and talk of a private sector equivalent indicate that 2017 could bring positive change for whistleblowers. Employment law expert John Wilson explains.

    “Sunlight,” eminent American judge Louis Brandeis once mused, “is said to be the best of disinfectants.” Yet while transparency is now a popular political buzzword, Australia remains an unfriendly place for those who dare to let the light shine on corruption and maladministration. The words of former NSW police commissioner Tony Lauer – that “nobody in Australia much likes whistleblowers” – continue to ring true.

    While the enactment of the federal Public Interest Disclosure Act in 2013 introduced long overdue protections for public sector whistleblowers, complementing a patchwork of similar legislation at state-level, this reform has been largely ineffectual. The absence of a comprehensive whistleblower scheme in the private sector only exacerbates a prevailing atmosphere of hostility towards those who report governmental or corporate wrongdoing.

    Unlike some jurisdictions where whistleblowers are adequately protected from retaliation, able to seek financial rewards and even empowered to initiate lawsuits when regulators fail to act, whistleblowers in Australia face severe personal and professional consequences. A Fairfax headline last year said it all: “Americans pay millions to whistleblower at BHP; we hound them out of their jobs”.

    A ray of sunlight?

    Political developments last November provide hope that change could be imminent. The Derryn Hinch and Nick Xenophon cross-bench deal to pass the government’s union regulation legislation came in return for strong protections for union whistleblowers, and the promise that similar laws will be introduced in other sectors. A parliamentary inquiry will report by June, with the objective of implementing “an equal or better whistleblower protection and compensation regime in the corporate and public sectors” by mid-2018. It has even been suggested that an American-style system of bounties or financial rewards for information could be established.

    Long-time observers of whistleblower protection laws in this country will not hold their breath. The federal Public Interest Disclosure Act, which although flawed represents a consideration step forward, took two decades, six parliamentary committees and three unsuccessful bills before finally being passed in 2013. Nevertheless, the prospect of improved whistleblower protections for public servants and the introduction of a private sector equivalent is enticing.

    First published in the Mandarin. Read the full article here.

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

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  • Workplace Policies

    Workplace Policies - Why You Need Them

    A cautionary tale on the importance of keeping your workplace policies up to date:


    If you have a business, we can help you keep your policies up-to-date – because even if your employees don’t read them, you never know when you still might need them. Contact us to discuss your workplace policies.

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  • community focussed

    ANU School of Art EASS Patron Keith Bradley AM on collecting art

    The Bradley Allen Love law firm in Civic could almost be mistaken for an art gallery. As a supporter of the arts for over a decade, lawyer and EASS Patron Keith Bradley AM has a collection that overflows from the office to his home, then into his family’s homes.

    “I’ve been collecting for about 12 to 15 years, and I own works across the broad spectrum of photography, glass, woodwork, painting, and sculpture. I find it very enjoyable”, he says.

    Works by graduates Sally O’Callaghan, Joel Arthur, Yioryios Papayioryiou and Sara Freeman adorn the office and board room walls, and that’s only what’s on view at work.

    “Our home in Fadden is over run with art. The walls are full so I’ve had to move out into the gardens. I’ve got ceramic tiles by Oscar Blyth going up the front of my house, overlooking the Brindabella Valley.”

    Buying art for living spaces is something Bradley is particularly passionate about.

    “I think it’s sad when people spend an awful lot of money on their houses but don’t have the daring or the bravery or the inventiveness to buy something that expresses their personality, or something that’s a bit quirky, or interesting or beautiful”, he says.

    “The only trouble is with all this art you feel you never want to move from the house! It’s all too entrenched. But I get a great deal of fun and satisfaction out of it.”

    He also likes to meet artists whose works he buys, and have them over to view the work in its new home.

    “The University medalist from last year, glass artist Hannah Gason, came over with her husband to install her lovely piece on the wall.”

    Asked what will happen when he runs out of space, Bradley paused, then admitted “that’s a problem, yes.”

    But he’s tackled that issue so far by assisting his family to also acquire art. “My most recent purchase from this year’s graduating exhibition was three very beautiful photographs by Monica Styles. They’re going to go into my daughter’s new place in Campbell, and I think they’ll look very snappy in a modern apartment.”

    “The other item I bought is a bit law related – we’ve got a commercial conveyancing department here in our law firm and there’s a terrific collage by Emma Holland that will suit that space.”

    While Bradley loves buying art for the office, he doesn’t do it alone, but with help from business partner Bill McCarthy who is on several of the arts boards in the ACT.

    “He’s a wonderful collector with a very good eye and he enlivens the walls of our office with a lot of the art that he buys”, Bradley says. “But I concentrate on art from ANU School of Art, which I love to support.”

    sally Photo 23-11-16, 11 52 25 am  joel

    First published on the ANU School of Art website.

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  • PPSR & PPSR - Personal Properties Securities Act

    PPSR & PPSA

    The Personal Property Securities Act (PPSA for short) and the Personal Property Securities Register (PPSR) came into effect nearly five years ago, yet some businesses have never heard of these terms. Regardless of the size or type of your business, the PPSA is likely to affect you.

    So what is a “security interest”? A security interest acts like a charge or mortgage over personal property that secures a payment. It allows a supplier to retake possession of the goods it supplied if the customer fails to pay their debts. By registering their interest on the PPSR, the supplier is making sure that their rights are enforceable. To help explain how securities interests and the PPSR may affect you, here is a tale based on a true story but for educational purposes only[1] of course.

    Seem complicated? It can be; which is why you need to understand your rights to protect your goods.

    This case was determined largely in favour of the customer; but it shows the range of outcomes that can occur when you do (and do not) register your security interests. If you supply goods on credit then make sure your contracts specify what the buyer can do with those goods, whether you can register a security interest and if you do have that right, make sure to register it. Otherwise you too might miss out on reclaiming your goods.

    [1] Warehouse Sales Pty Ltd (in Liq) & Lewis and Templeton v LG Electronics Australia Pty Ltd & Ors [2014] VSC 644

    A registration on the PPSR means that if your customer doesn’t pay, or goes broke, you are in the best position to get your goods, or their value, back. If you do have any registrations that transferred across to the PPSR when it started in 2012 and you haven’t taken any action, your registration may no longer ensure your interests are protected.

    When the PPSR was established, it replaced over 30 registers (which recorded “security interests” in all types of personal properties). Registrations were automatically moved across to the PPSR on 30 January 2012. Many of these registrations migrated with missing or incomplete fields. The PPSA, provided a grace period, allowing the creditors/secured parties time to fix and update these migrated registrations.
    However, this period is coming to an end on 31 January 2017 for registrations that were migrated without an end date.

    The PPSA is about registration; it is no longer about ownership rights. If you had (and continue to have) a relationship with a customer or supplier where, prior to 2012, you held a charge over goods (cars, stock, crops etc) and have done nothing about it recently, we strongly recommend you search the PPSR now. If your charge migrated across to the PPSR and has not been claimed or amended, your rights may be ineffective and you may lose rights to recover the goods.

    If you need assistance searching the PPSR please contact Katie Innes.

     

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  • dispute trust money

    Beware of Disputed Trust Money

    Have you been in the situation where a Contract for Sale has been terminated and both the Buyer and the Seller are claiming an entitlement to monies held in Trust? What do you do?

    As you are aware, under the Agents Act 2003 (ACT) (“the Act”), a Licensed Agent commits an offence if they deal with Trust money otherwise than as directed by the person for whom the money is held. The maximum penalty being $15,000 for individuals and $75,000 for a corporation. Records must be kept stating the material details of every transaction the Agent conducts.

    Failure to comply with the record keeping requirements may result in a maximum penalty of $7,500 for individuals and $37,500 for a corporation. In addition to monetary fines, the Agent, who will also be in breach of the rules of conduct, may have their licence cancelled or suspended.

    So, what do you do if you have both the Buyer and Seller providing writing instructions to disburse the monies to them?

    Agents are at risk of breaching their Trust account requirements if they disburse money contrary to the directions of the parties. If the parties cannot agree on the distribution of the funds, to ensure compliance with the Act, an Agent must hold the funds until agreement is made or court proceedings are commenced. If court proceedings are commenced, the money may be paid into the court, to be held until a decision is made. If court proceedings are not commenced by the parties, one option the Agent may consider is to make its own originating application to the court as a third party under rule 35(1)(a) of the Court Procedure Rules 2006 (ACT). The originating application would be a request to pay the disputed Trust monies to the court where they would be held until the dispute is resolved between the Seller and the Buyer.

    So what should you do?

    If you consider that there may be a dispute in relation to the money you hold in Trust, keep the lines of communication open. If the Contract is subsequently terminated and the parties cannot agree on how it is to be disbursed, a letter to both advising that you may seek the assistance of the courts may be enough to push the parties to come to an agreement. Until you receive written confirmation from both parties that convey the same instructions, do not disburse the Trust monies. Seek legal advice if you consider the dispute is likely to require court assistance or if you are not certain what to do.

    If you have any questions about contracts for sale or entitlement to monies held in trust, please get in contact with our Real Estate team.

    First published in REIACT newsletter. Full article available for download here.

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  • A GUIDE TO THE DELEGATION OF COUNCIL FUNCTIONS

    A guide to the Delegation of Council Functions

    A quick guide to The Cans, the Can’ts, the Whats, and the Hows of Delegation AND Sub-delegating Council Functions under Legislation and the Common Law

    THE AUTHORITY TO DELEGATE

    Chapter 12, Part 3 of the Local Government Act 1993 (NSW) (‘LGA’) governs the power of Councils to delegate their functions.

    Principally, section 377 of the LGA affords Councils the power to delegate certain functions to general managers or to other persons or bodies (other than directly to other Council staff).

    The statutory regime is designed to facilitate delegations of authority, in recognition of the important functions delegates play in maintaining the effective and efficient governance of Councils. However, the scope of the power to delegate is not without restrictions and Councils need to be aware of the legislative and common law principles governing delegations.

    TO WHOM CAN A COUNCIL DELEGATE?

    Section 377 of the LGA provides that Council functions can be delegated to general managers and to other persons or bodies. However, the Council cannot delegate directly to an employee of the council other than the general manager.

    Section 49 of the Interpretation Act 1987 (NSW) provides some further guidance:

    • Where a Council seeks to delegate a function to someone other than the General Manager, the delegation must be made to either a specified person or body (by name), or to a particular officer or the holder of a particular office (by reference to the title of the office concerned): section 49(1).
    • If a function has been delegated to the holder of a particular office or position, the delegation does not cease to have effect merely because the specific person holding the office or position ceases to occupy that particular office or position. Where this arises, the person occupying the office in the meantime is taken to be the delegate: section 49(8).

    A function can only be delegated to an office or position that is in existence at the time that the delegation is made: Australian Chemical Refiners Pty Ltd v Bradwell (1986) 10 ALN at N96.

    HOW TO DELEGATE

    Section 377 of the LGA requires delegations to the general manager to be made by Council resolution.

    Section 49(2)(b) of the Interpretation Act requires delegations be in writing or evidenced in writing.

    Delegations can be general or limited: section 49(2)(a) of the Interpretation Act.  Where a function may be exercised in relation to a number of different matters or classes of matters, the delegation may be restricted to only certain matters or classes of matters.

    The delegation may be made subject to conditions: section 49(3) of the Interpretation Act. Any conditions restricting the exercise of the delegation must be satisfied for the exercise of the delegation to be valid: Aldous v Greater Taree City Council [2009] NSWLEC 17.

    THE SCOPE OF DELEGATED POWER

    A delegation can cover a wide range of functions.  Additionally, section 378 of the LGA gives a general manager the power to delegate any of his functions, including functions that have been delegated to him by the Council.

    The delegation of a function includes the power to exercise any other function that is incidental to the delegated function: Interpretation Act, section 49(4).

    Where the exercise of a statutory function requires the formation of an opinion, belief, or state of mind, when the function is delegated it is the opinion, belief or state of mind of the delegate and not the primary decision maker that controls the exercise of the function: Interpretation Act, section 49(7).

    Even where a function has been delegated, the primary decision maker (the Council or general manager) may still exercise the function at any time prior to its exercise by the delegate: Interpretation Act, section 49(9).

    Some functions must be exercised by the Council itself and cannot be delegated.  The Council’s non-delegable functions are set out in section 377(1)(a)-(u) of the LGA and include (but are not limited to):

    • the appointment of a general manager;
    • the making of a rate or a determination as to the levying of a rate;
    • the making of a charge;
    • the fixing of a fee;
    • the borrowing of money;
    • voting of money for expenditure on council works, services or operations;
    • the compulsory acquisition, purchase, sale, exchange or surrender of any land or other property (but not including the sale of items of plant or equipment);

    A Council is precluded from delegating a function that is specifically required by any legislation to be exercised by resolution of the Council: section 377(1)(u) of the LGA.

    A Council and a general manager are precluded from delegating their power of delegation: sections 377(1)(t) and 387(1) of the LGA.

    Where the exercise of discretion is involved in the exercise of a Council function, the function cannot be delegated in a way that requires the discretion to be exercised in a specific way.  For example, section 80 of the Environmental Planning and Assessment Act 1979 (NSW) confers power on the council to determine whether to grant consent to a development application. The function conferred involves the exercise of discretion as to whether or not to approve the application unconditionally, to approve it subject to conditions, or to refuse it. The Council cannot delegate the power to approve a development application without also delegating the power to approve it subject to conditions or to refuse it: Belmorgan Property Development Pty Ltd v GPT Re Ltd & Anor [2007] NSWCA 171.

    A Council is also obliged to review all of its delegations within the first 12 months of each term of office: section 380 of the LGA.

    NB: this is a ‘guide’ only. The legal principles discussed about are intended to provide a general overview of the legal principles applicable to the delegation of Council functions. It is not exhaustive and does not constitute legal advice. Should any questions or issues arise regarding delegation please feel free to contact BAL Lawyers on (02) 6274 0999 or seek alternative legal advice.

     

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  • investigate bradley allen love

    To investigate or not to investigate? Allegations in the workplace

    Hamlet was fortunate not to be an employment lawyer or human resources professional. Following a recent Queensland case, the question of whether or not to investigate employee misconduct is more vexed than ever.

    Public and private sector employers now find themselves walking a tightrope where a misstep in either direction can lead to litigation and liability.

    In late September, the Queensland Industrial Relations Commission delivered judgment in East Coast Pipeline Pty Ltd v Workers’ Compensation Regulator. The case involved a workplace investigation into complaints of sexual harassment and bullying. The accused employee allegedly told a colleague that “flavoured condoms were on sale, and that maybe that would give her something to do in the lunch break”, suggested that his colleague was a lesbian because she received flowers from a female friend, made lewd comments about her skirt, and demeaned and swore at other colleagues.

    Upon hearing these allegations, the employer initiated a formal investigation into the employee’s behaviour. The employer requested the complainants make their complaints formal, conducted interviews, kept meticulous records, required all participants to sign and endorse interview minutes, suspended the accused employee and sent home the complainants.

    To most, the approach adopted by the employer in this case is uncontroversial. Bullying and sexual harassment are serious matters. Employers can be vicariously liable for the sexual harassment of an employee, and the potential for substantial awards of compensation has increased dramatically following the landmark 2014 case of Oracle v Richardson. Being complacent to sexual harassment in the workplace is now a potentially expensive exercise, and for some the decisive action of East Coast Pipelines may resemble best practice.

    However, in the present case, the employee under investigation subsequently lodged a workers’ compensation application, claiming that the unreasonable actions of his employer were major contributing factors to a psychological injury he suffered. Despite his employer mounting a vigorous defence, the claim was accepted by WorkCover and then upheld by the Industrial Relations Commission. Both found that East Coast Pipelines had contributed to the employee’s mental health injury by proceeding straight to a formal investigation, and that the employer’s approach did not constitute reasonable management action. Read More.

    First published in The Mandarin.

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  • Healthier Work ACT - Silver Status - Bradley Allen Love

    BAL Receives Silver Status for being a Healthier Workplace

    Since formalising our 12-month health and well being plan with Healthier Work ACT, BAL has already seen improved employee engagement and enthusiasm about participating.

    The Directors recognise the correlation between health and well being and productivity, and are proud of BAL’s focus on the program.

    To take care of our staff and look after their well being, our team along with the staff at Healthier Work ACT developed the BAL Health and Well being 12 month Plan. Each year it is renewed and refreshed with new activities, initiatives and a different charity to support. Our health and well being plan is broken up into four sections, aligned with the seasons, to address four aspects of health and well being; to help reduce stress, minimise absenteeism and promote well being.

    More importantly, it is raising awareness of the high rates of stress and depression that historically affect the legal profession and that the additional vitamin D and exercise obtained through our program may go some way to alleviate this for staff. The end goal is to ensure that all employees are in a happy and supportive workplace with healthy work strategies with both a mental and physical benefit.

    Healthier Work has developed the Healthier Work Recognition Scheme, to acknowledge and reward Canberra businesses who are committed to the workplace health and well being journey.

    Now in our second year of the ACT Government program, we are very excited to have received our silver status this year.

    Our Healthier Work ACT case study is available here.

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  • drug testing in the workplace - john wilson

    Drug Testing Employees - 3AW radio interview

    Workplace drug tests are now commonly conducted across a number of industries. Lately, there has been talk of implementing workplace drug testing programs among all employees of the Australian Public Service.

    Melbourne radio station, 3AW spoke with legal director, John Wilson on Drug Testing Employees:

     

    If you are having trouble with drug testing in the workplace, call the BAL employment team on 6274 0999 or contact us.

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  • Australian Employment Contract

    Amendments to the Competition & Consumer Act

    From 12 November 2016 amendments to the Competition & Consumer Act (2010) (Cth) will take effect which mean that small businesses will now be considered ‘consumers’ and have the benefit of the unfair contract terms regime. Small businesses will be able to seek relief from the Courts to strike out any terms in their “standard form contracts” which are “unfair”.

    The regime doesn’t apply to all contracts; contracts must be ‘standard form contracts’ entered into on or after 1 July 2010 and constitutions of companies, managed investment schemes and other similar bodies are excluded from the regime. However, the regime may apply to certain commercial leases and licences of land.

    If you haven’t already, we recommend that you review your current contracts (including leases) to determine whether this regime applies to you, to identify any potentially “unfair” clauses and enforcement issues.

    For more detail about how the amendments will apply, please visit our website here.

    If you would like us to review your existing contracts, please contact Katie Innes.

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  • Keith Bradley listed in doyles guide 2016

    Estates Team Listing in Doyles Guide 2016

    The 2016 Doyles Guide listing of leading Canberra Wills & Estates Litigation Lawyers has just been released and details solicitors and law firms practising within the areas of Wills & Estates Litigation, Disputes and Contested matters in the ACT legal market who have been identified by their peers for their expertise and abilities in these areas.

    BAL Lawyers has been listed as a First Tier Firm in the category of Leading Wills & Estates Litigation Law Firms – Canberra, which is the highest category available in this section. Full Listing Here.

    An additional Congratulations to Keith, who this year has been listed as a Leading Wills & Estates Litigation Lawyer – Canberra, 2016. Keith’s ability to empathise and identify with clients’ particular needs sets him apart from others in this practice area. Keith has been listed in the Preeminent section, which is the highest category available to practitioners. Full Listing Here.

    BAL Estates Team Doyles Guide 2016 Keith Bradley

    Our Estates Lawyers take a holistic approach to estate planning, considering your broader personal, family and financial circumstances to ensure your wealth is passed onto the people you wish to benefit in an efficient and tax-effective way. If we can assist you with a making a will, appointing a power of attorney, estate litigation or helping you set up a business succession plan, please contact us.

    Bradley Allen Love are a proud partner of Will It Your Way and are committed to providing young and mature Australians to obtain a legally binding Will and Estate Plan.

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  • shareholders agreement

    Shareholders Agreement: your company’s first aid kit

    When it comes to a company, the corporate “constitution” is often assumed to be the most important document when it comes to governing its day-to-day affairs and operations. In reality, there are a range of issues which are not covered by a constitution and implementing a Shareholders Agreement can be key; giving certainty and clarifying shareholder “rights”, expectations and procedures. These become particularly useful in the event of a dispute or relationship breakdown. Shareholders Agreements cannot remove a shareholder’s statutory rights.

    Consider the following issues which can be covered in your Shareholders Agreement:

    • Management Structure: the process for appointing directors, board composition and the general management and running of the company;
    • Decision making: allocating different types of decisions to different classes of people to approve them. Relatively minor day-to-day company decisions may require only a majority vote of directors, but bigger decisions affecting the core business of the company (such as a merger or winding up) could require approval by a special resolution (75%) or unanimous decision of directors and shareholders;
    • Share transfers: provisions relating to the transfer of shares form a crucial part of the overall Agreement. These clauses cover a multitude of situations, including first rights of refusal, price valuation mechanisms and the right (or obligation) to buy or sell in certain circumstances. These can work to resolve voting deadlocks between shareholders;
    • Restraints: imposing obligations on existing shareholders and directors to refrain them from starting up a competing business next door, or poaching employees or clients from the company for their own benefit, ensuring they dedicate their time and efforts to ensuring that the business is a success; and
    • Dispute resolution: despite best efforts, disputes with business partners are all too common, so it is important to have a pre-agreed dispute resolution process in place at the start of the venture, so that disagreements don’t disrupt the entire operation.

    The risk in not having a Shareholders Agreement is that a dispute or stalemate between the decision makers could jeopardise the operation of the business or payment of creditors, leading to a deterioration of the business’ good will and value. Absent a predetermined resolution process, the only way to resolve a dispute may be litigation, which in turn can lead to the winding up the company by the Courts.

    Ideally, your Shareholders Agreement can be drafted and filed away, never needed because the business and the parties are working well together. If, however, you ever get caught up in a dispute, you’ll be glad you’ve got a safety mechanism in place.

    First Published in B2B Magazine, available  here.

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  • sweatworking

    ANOTHER YEAR OF SWEATWORKING DONE AND DUSTED

    On October 18, 24 teams from Canberra businesses came together for an evening of Sweatworking to raise money – each team registering with a minimum $250 donation to Global School Partners.

    The fifth annual Sweatworking® event saw the teams rotate through 10 stations completing a variety of exercises including the gruelling burpee and jump!

    After the 10 rounds were completed, there was a quick break for a sausage sizzle and some networking, before the finals began.

    The teams that made it to the finals we Much more than Money, EY, Netier and BAL Lawyers.

    The finals were close, but Much more than Money couldn’t be rivalled. A huge congratulations to the Winning Team from Much more than Money – “Much More than athletes” – who proudly took home the champions cup.

    Sweatworking® is an annual networking event organised by Bradley Allen Love Lawyers which pits teams from a variety of Canberra organisations against each other in a physical challenge.

    Bradley Allen Love created the annual Sweatworking® challenge to facilitate being able to network and staying active at the same time.

    It’s an event that focuses on health and fitness and most importantly friendly competition. It’s the Bradley Allen Love way to network – fresh, exciting and innovative.” Sweatworking® is not only a fantastic fundraiser assisting the wider community, but participants also benefit from the experience of exercising in a challenging outdoor environment. “The correlation between physical and mental health cannot be underestimated.

    We are excited about our partnership with Global School Partners, raising funds to assist them in the vital role they play in our community

    Thank you to everyone for participating in our Sweatworking event last night. We cannot thank everyone enough for the donations that totalled $6,500!  We were very proud to hand over the cheque to Simon Carroll, CEO of Global School Partners.

    The list of organisations that participated in Sweatworking®2016 and donated are;

    Addvantage Accountants Global School Partners
    SPA Accounting MUCH Pty Ltd
    Colliers Deloitte
    DUO Ernst & Young
    RSM CBRE
    Southlands Capital Chemist Trilogy
    Netier

    Looking Forwards to seeing you all for Sweatworking 2017!

     

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  • Sweatworking 2016

    Sweatworking 2016

    GLOBAL SCHOOL PARTNERS AND THE COMMUNITY TO BENEFIT FROM CORPORATE SWEATWORKING®

    Sweatworking 2016 brings together Corporates from across the region to push their athletic prowess to the limit tomorrow with Global School Partners set to reap the benefits of an evening spent Sweatworking®.

    Sweatworking® is an annual networking event organised by Bradley Allen Love Lawyers (BAL) which pits teams from a variety of Canberra organisations against each other in a physical challenge, each team registering with a minimum $250 donation to Global School Partners.

    Now in its fifth year, Sweatworking 2016 will see 25 teams of four; rotate through 10 stations completing a variety of exercises in the bid to take out the Champions Cup, awarded to the team with the most points at the end of the event.

    BAL Lawyers created the annual Sweatworking® challenge to facilitate being able to network and staying active at the same time.

    Sweatworking 2016 compliments the work ethic and philosophies of staff at BAL Lawyers while raising funds for a different charity each year.

    It’s an event that focuses on health and fitness and most importantly friendly competition.  It’s the BAL Lawyers way to network – fresh, exciting and innovative.

    We are excited about our partnership with Global School Partners, raising funds to assist them in the vital role they play in our community.

    Sweatworking 2016 will commence at 6:00pm (sharp), Tuesday 18 October at the AIS Outdoor Synthetic Oval.

    The list of organisations participating in Sweatworking®2016 and donating are;

    Addvantage Accountants Global School Partners
    BAL Lawyers MUCH Pty Ltd
    Colliers Deloitte
    DUO Ernst & Young
    RSM CBRE
    Southlands Capital Chemist Netier
    Trilogy SPA Accounting

    Media and spectators are welcome to attend this event to encourage their friends or colleagues. Participants will enjoy a BBQ and refreshments at the conclusion of the event.

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  • A Gambler’s Play: Brumbies Defend Quantum Meruit

    A Gambler’s Play: Quantum Meruit

    It is not uncommon, in claims seeking monies owed under services contracts, for plaintiffs to plead an alternative cause of action in quantum meruit (Latin for ‘what one has earned’).  In doing so, the litigant is essentially saying: ‘even if there is some defect in the contract on which I rely, I have nevertheless performed services at your request, and it is not fair that you benefit from my services without paying me for them.’ In principle, this is not an altogether unreasonable fall-back position. But what if it is your only position? What if youhave not taken steps to formalise your expectations for payment through a written contract? How are you going to prove what the value of your services amounts to? The recent ACT Supreme Court case of Beagle v ACT & Southern NSW Rugby Union Limited [2016] ACTSC 71, in which the ACT Brumbies successfully defended a quantum meruit claim, considered these issues.

    The Facts

    Mr Beagle – a retired gaming industry consultant – approached the ACT Brumbies in December 2014, at a time when the organisation was publically known to be without a major sponsor heading into the 2015 Super Rugby competition. In a meeting with the Brumbies’ then CEO on 4 December 2014, Mr Beagle asserted that he knew of a possible sponsor but, for confidentiality reasons, he could not disclose who. Whilst the Brumbies were interested in being introduced to the unidentified sponsor – at least, generally, given the uncertainty as who they were talking about, or to – no terms were agreed as to what, precisely, Mr Beagle would do, or how he would be paid (if at all). Rather, only vague comments were said, along the lines that Mr Beagle would expect a “finder’s fee” or that the Brumbies would “look after him” if Mr Beagle “pulled it off”.

    It was not, however, discussed or agreed what was meant by a “finder’s fee”, or how Mr Beagle expected to be “looked after”.  More importantly, the meeting ended without any clear certainty as to what Mr Beagle was tasked to “pull off”.

    On 15 December 2014, Mr Beagle met with a Hong Kong group (‘Aquis’), who had arrived in Canberra as part of their purchase of the Canberra Casino.  Prior to the meeting, Mr Beagle provided Aquis’ executive director with a Brumbies sponsorship proposal document. However, Aquis agreed to meet with Mr Beagle before receiving the sponsorship document, with a view to gaining insight into the workings of ACT Government. When it became apparent to Aquis that Mr Beagle was of no assistance to that end, the meeting was concluded. Aquis’s executive director gave evidence that she could not recall the extent – if any – that the Brumbies may have been discussed at that meeting.

    In early 2015, with Aquis having completed its purchase of the Canberra Casino, it sought advice from its public relations advisors as to strategies to engage with the ACT community.  The advice was to sponsor the Brumbies. When a sponsorship deal was subsequently completed, Mr Beagle surfaced to claim his “finder’s fee” for his part in the transaction. The Brumbies, unaware of what approaches Mr Beagle made to Aquis (keeping in mind that Mr Beagle had declined to identify his contact for “confidentiality reasons”), and having identified and approached Aquis independently through their publicly reported purchase of the Canberra Casino, refused to pay any such fee.

    In the absence of a contract setting out (a) what he was tasked with doing, or (b) how he would be remunerated, Mr Beagle commenced proceedings against the Brumbies exclusively through a claim in quantum meruit.  In doing so, Mr Beagle likened his services to that of a sports agent, and sought a reasonable compensation, comparable to a commission, in the sum of $587,000.

    Applying the Quantum Meruit principles

    Even in the absence of a contract, the law may impose an obligation to make restitution, or pay reasonable compensation, on a quantum meruit basis where a plaintiff can prove that:

    1. a request for services was made;
    2. requested services were performed;
    3. the defendant was aware that the plaintiff expected to be paid for the services;
    4. the defendant received a benefit as a consequence of the services; and
    5. it would be unjust for the defendant to retain the benefits without paying some reasonable remuneration.

    In the Beagle case, it was accepted by the Brumbies that a ‘request’ was made for Mr Beagle to deliver their sponsorship proposal to an unidentified potential sponsor. Whilst not known to the Brumbies at the time, through the legal proceedings, it was evident that Mr Beagle did so – such that the elements (1) and (2) above were satisfied.

    However, where Mr Beagle’s claim came unstuck was his failure to prove the Brumbies were aware of his expectation for payment.  To the extent that the Brumbies had acknowledged an entitlement, it was conditional upon Mr Beagle “pulling it off”, which imported a requirement that he have some causal influence over Aquis’ eventual decision to enter the sponsorship was required – Mr Beagle was unable to make this out on the evidence.

    The court also did not accept any ‘benefit’ was conferred upon the Brumbies which would render their refusal to compensate Mr Beagle for the services carried out by him (largely outside of their knowledge or control) as being unjust. Accordingly, neither element (4) nor (5) above was satisfied.

    Lessons Learnt

    The simplest way to minimise disputes is to formalise your agreements in writing.  Where practicable and possible, legal advice should be obtained. Had Mr Beagle made it clear that he expected to be paid such a significant “finder’s fee”, notwithstanding the steps taken by him would be minimal, the Brumbies no doubt would have instructed him not to carry out any services and no dispute would have arisen.

    Equally, if you do have a contract on foot, do not assume that pleading an alternative quantum meruit claim will solve any technical deficiencies in your contractual claim. As the High Court held in a leading quantum meruit authority, Pavey & Matthews Pty Ltd v Paul, ‘An inability to sue on a contract provides no ground for imposing a quasi-contractual obligation inconsistent with the contractual obligation to pay remuneration.’

    For example, if your contract fails to clearly set out the remuneration payable, you may encounter the same difficulties as Mr Beagle in establishing your opponent’s knowledge of your expectation to payment. Alternatively, the compensation payable under quantum meruit may see your remuneration assessed in line with industry standards or conditions which you had not intended your contract to be limited by.

    After all, and returning finally to the Beagle decision, in many respects it is easy to argue that there was an enforceable contract in place. That contract, however, would have required Mr Beagle to “pull it off” (that is, arrange the Aquis sponsorship), such that his entitlements under contract would have been ‘nil’. In sum, then, the Beagle case demonstrates that relying on quantum meruit, whether exclusively or as a fall-back position, is a risky bet. For Mr Beagle, his gamble failed to pay off in the ACT Supreme Court.

     

    Written by Ian Meagher, Director, Employment & Workplace Relations and Litigation & Dispute Resolution.

    Disclaimer: Bradley Allen Love acted for the Brumbies in their successful defence of Mr Beagle’s claim. Please note this case is currently subject to appeal. Further updates will be provided as they become available.

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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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  • Line of Sight and Kiosk Tenancies

    Line of Sight and Kiosk Tenancies

    The recent case of Spuds Surf Chatswood Pty Ltd v PT Ltd (No 4) [2015] NSWCATAP 11 (the Spuds Surf Case) demonstrates that landlords should be aware of their conduct and the impact of new tenancies on existing tenancies when making a new deal.

    Lease documents will not always refer to sightlines or guaranteed views, contain height restrictions or refer to a proposed new tenancy that was not considered at the time of entering into the Lease.

    The relevant facts of the Spuds Surf Case are:

    1. The Tenant let 3 shop spaces from the Landlord from 1999.
    2. The Landlord allowed the installation of three kiosks outside the Tenant’s premises from 2002. Sightlines to the Tenant’s premises were partially obstructed.
    3. The kiosks were in breach of the Landlord’s fitout requirements on height restrictions. The Landlord changed the height restrictions in 2005.
    4. The Tenant commenced proceedings against the Landlord on various grounds, including for unconscionable conduct.

    The relevant findings from the Spuds Surf Case are:

    1. The Landlord acted unconscionably by:
      • refusing to acknowledge or address the Tenant’s concerns regarding the height of the kiosks;
      • relying on new height restrictions which were self-serving to allow the new tenancy; and
      • refusing a rent abatement despite several requests.
    2. The Tenant was awarded an 80% rent reduction as an equitable remedy due to the Landlord’s unconscionable conduct, not because of loss of profits as claimed by the Tenant (they were unable to prove that point).

    In ordering the rent relief, the NSW Civil and Administrative Tribunal noted the “ongoing nature” of the Landlord’s unconscionable conduct “may well” have contributed to the tenant’s reduced turnover and subsequent financial difficulties.[1]

    The emphasis of the decision in the Spuds Surf Case focused on the actions of the Landlord and whether the Landlord acted unconscionably.

    When considering new tenancies which may affect current tenants’ sightlines or views, irrespective of what is contained in the lease documents, it is recommended that landlord’s maintain an open dialogue with tenants.  There are also notification requirements within the Leases (Commercial and Retail) Act 2001 (ACT) which may apply.

    It is important to remember that not all leases will be drafted in the same manner and that conduct can be unconscionable in certain circumstances. If you require advice and assistance in a matter involving a new kiosk tenant, 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] Spuds Surf Case, paragraph [235].

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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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  • grandchild b & w

    I'm a survivor

    When drafting your Will it is important to be aware that many words do not carry what would seem to be their everyday meaning. If a document could have a side-view mirror it would read: “Warning: words in Will carry greater legal baggage than appears.”

    Take the word “survive.” If you leave something in your Will to grandchildren who “survive” you, what do you mean? Do you intend to benefit only those grandchildren who were born during your lifetime? Or do you intend to benefit all the children your children may have, even if they were born after your death?

    There have been cases that have turned on just this question. Lawyers and judges alike have debated the sense in which “survive” should be construed, calling on dictionaries, Shakespeare, and “intuition” in the process. Overwhelmingly, the interpretation has been this: to “survive” is to “outlive” – someone survives you if they live both during and after your lifetime.

    It is an interpretation that is not without a catch, or two (or three). One such catch is known as the 30-day rule.[i] It applies in all Australian jurisdictions, and it means that even if a beneficiary survives you, they are presumed to have died before you unless they lived for a full 30 days after your death.

    Another catch in the word “survive” could be that you unwittingly enable impatient beneficiaries to access their inheritance earlier than you wanted them to. Imagine you leave your estate to your two children, Bill and Ben, provided they attain the age of 30. If either die before you, you leave everything to any children that they have “who survive [you].” This means that if you die and Bill and Ben have no children, there are never going to be any grandchildren who could be considered to “survive” you. There is no-one else your estate could possibly go to except for Bill and Ben. So, Bill and Ben say, “why can’t we take the money now? Why should we have to wait til we’re 30?” From a legal perspective, it is a good question.

    Finally, does a child “survive” you if they were not yet born but were conceived and anticipated while you were alive?[ii] What about frozen embryos that are created during your lifetime but only implanted and carried to term after your death?[iii] The normal meaning of the word “survive” does not adequately cover these cases and therefore may not align with your intentions.

    To survive is not merely to live after, and it is not merely to outlive: terms and conditions attach.

    Ultimately, the best way to guard against your testamentary intentions being misconstrued is to seek the advice of specialised estate planners who are aware of these language minefields and can navigate the drafting of your Will through them.

    [i] See, for example, Wills Act 1968 (ACT), section 31C.

    [ii] See, for example, Knight v Knight (1912) 14 CLR 86.

    [iii] See, for example, Krstic v State Trustees Ltd [2012] VSC 344.

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  • Winding Road b & w

    Another twist in the road: the latest case on the standard instrument savings clause 1.8A

    The recent NSW Court of Appeal decision in De Angelis v Wingecarribee Shire Council [2016] NSWCA189 has significant implications for development applications which are made but not determined before an amendment to a Local Environmental Plan (LEP) comes into force.

    In De Angelis v Wingecarribee Shire Council [2016] NSWLEC 1, a case decided by the Land and Environment Court in February this year, the Court found that the standard instrument savings provision, clause 1.8A, applied to an application which was made but not determined before an amendment to the Wingecarribee LEP commenced. In this case Wingecarribee Shire Council delayed determining a development application it had received for mixed use development and amended its LEP by rezoning the land the subject of the application so that the proposed development was prohibited rather than permissible with consent. When the deemed refusal of the application came before the Court the Council asserted that the Court had no power to grant consent to the application on the basis that the development was prohibited by the amended LEP. The Land and Environment Court did not agree and applied clause 1.8A to ‘save’ the operation of the unamended LEP. The Court’s interpretation would then have enabled it to go on to determine the development application on its merits and did not require the application to be refused.

    However, the application of clause 1.8A in this context was comprehensively rejected by the Court of Appeal. The Court of Appeal found that clause 1.8A only applied to development applications which were made before the commencement of an original LEP and did not ‘save’ development applications which were made but not determined before an amendment to a LEP came into force.  The Court noted that savings provisions are generally not ambulatory in their operation, but instead deal with a precise point in time, being when the new legal instrument commences.  In the words of the Court, to give clause 1.8A any additional operation is ‘inconsistent with its purpose, as well as its language’.  It followed that, in this case, clause 1.8A did not apply and the proposed development was prohibited by the time the matter came to be determined by the Court.

    The Court of Appeal’s decision has two key implications:

    1. LEP amendments can provide an effective tool for a Council to block an application for development which it considers undesirable, even after a development application has been received; and
    2. Where a Council wishes to limit the application of a LEP amendment to new development applications then the amending LEP needs to include its own savings clause.

     

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  • working with friends

    Working With Friends: A complimentary dish or a recipe for disaster

    A married couple have been ordered to pay more than $1.1 million in damages to a friend who fell from a ladder while working with friends on their roof.

    The accident occurred after the couple engaged their friend as a paid contractor to replace the roof of their home.  The husband provided and erected the ladder in the “A position” in front of the carport roof.  The top of the ladder was about 40cms lower than the roofline.  Their friend fell from the ladder while descending it frontwards, hitting his head and suffering other injuries.

    In a decision of Hendrex v Keating [2016] Tas SC 20 (13 April 2016), the Tasmanian Supreme Court found that the husband failed to eliminate the foreseeable risk of a person falling from the ladder in failing to erect the ladder in an extended position instead of the A position or secure it with a rope to the carport roof.  The couple breached their duty of care to their injured friend as they had a duty to protect him from harm while travelling up and down from the carport roof; that his capacity to take care for his own safety did not alter this duty; and that the accident was reasonably foreseeable.

    The case is a timely reminder of the problems that a householder can encounter when a group of friends are engaged to work on their home.  Here, the husband arranged to pay the friend for his work; the other friends volunteered to work without payment.  The husband provided a ladder and was present at all times controlling the work project.

    There was a finding of contributory negligence against the friend as he increased the level of danger to himself by using the ladder when it was not in the extended position, using the ladder when it was not secured, and coming down the ladder frontwards with nothing to hold onto.  The Court considered that the friend’s negligence was greater than the husband’s and the damages ($2.6 million) were reduced by 60% because of contributory negligence.  The Court regarded the friend as an experienced tradesman working irregularly, mainly doing tiling and roofing work and was engaged, at the time of the accident, as an independent contractor.

    It is important that a householder is aware of the liability risks when friends are engaged to perform work on their home.  The householder should always consider the risks associated with the work when making decisions about who will undertake the work.  A risk assessment should be conducted in relation to all facets of a work project so a decision can be made whether to engage experienced or licensed professionals to undertake specific work.  Only involve friends if the overall health and safety risk is very low and, if in doubt, always seek assistance from a licensed professional.  When you engage a tradesman, your home should become their workplace.  These tradesmen should provide their equipment to perform the work and be responsible for their own occupational health and safety issues.

    If you engage a domestic worker such as gardener or cleaner, you could be liable to pay compensation if they are injured.  While your home and contents insurance may have public liability cover, this does not necessarily mean that this will include cover should a worker be injured on your property.

    This is because public liability insurance does not normally apply if the person injured is considered an “employee” under the terms of the policy or generally at law.  It does not matter if you believed you had engaged your gardener or cleaner as an independent contractor and not as an employee – if the terms and conditions of their engagement indicate that they are an “employee” at law, then they will be entitled to bring a workers’ compensation claim and possibly sue for common law damages for their injury.

    Although there is no national code for workers compensation, each state and territory has a Fund that will meet such claims under workers’ compensation legislation.  The Fund will have the right to seek recovery of those claim costs from you, having a devastating impact on you and your family.

    There are three key factors to be considered, although individually each one would not be definitive:

    • Is the individual under your direction and control? Do they come every week at a set time and do what you tell them to do?  Do you supply the tools and products when performing the work?  If this is the case, they may be deemed an employee.
    • Do they work for half a dozen other people in a similar capacity? If so, then they may be more likely to be an independent contractor.
    • How are they paid? If it is by the hour, there is a higher possibility they fall into the employee category.  If they are paid by the job, they may be more likely deemed a contractor.

    As a contractor, the onus is on this individual to have insurance, although if you were found to be negligent, then you might want to have extra cover to protect yourself against this risk.

    If you are planning on having a worker on your property to undertake some work, then in the first instance you should ask them whether they have their own insurance – ask to see proof.  The insurance should cover:

    • any bodily injury or property damage that the worker causes to you, your family, and your property;
    • workers compensation for injuries the individual cause to themselves;
    • accidents involving the worker’s own equipment, such as falling off a ladder (a worker using your ladder could claim it was your faulty equipment, not their clumsiness, leading to an insurance battle and a law suit. The bottom line…don’t provide the worker with anything more dangerous than a pencil).

    It can be expensive for a worker to obtain this contractor liability insurance – this will be reflected in the invoice for their work.  If an uninsured worker hurts themself on your property, you’ll find a lawyer’s hand in your pocket pretty quickly.

    While it may not be necessary for you to take out insurance to cover domestic help in your home, it is certainly worth your while to check the policy.  If you are uncertain, you should approach your insurer to see if you are covered through your home and contents insurance policy.

    Remember that insurance is an essential protection.

    Written by Bill McCarthy, Special Counsel, Insurance. To learn more about liability for working with friends, contact us.

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  • will and estate planning

    Salvation Army Wills Day

    This month, the Estates team donated their time and expertise to the Salvation Army Wills Day.

    The Wills Day has been initiated by The Salvation Army to help relieve some of the confusion and anxiety associated with making Wills, while raising funds for their extensive work with the needy.

    For recognition of their pro-bono work, the team were awarded a certificate of thanks.

    Salvation Army Wills Day

    To see more of the great work the Salvation Army does, or to see dates and locations for their upcoming will days, see their website.

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  • Shareholders meetings – where the majority rules

    Shareholders meetings – where the majority rules

    Directors are not the only decision makers regarding the operation and direction of a company’s business; shareholders also have a lot of power. By being entitled to vote on key resolution affecting the company’s future, its directors and strategic goals, shareholders can be crucial to a company’s success and expansion. Shareholders exercise their powers through general meetings – but who has the right to call these meetings, and what resolutions can be considered by the shareholders?

    Under the Corporations Act 2001 (Cth), such meetings can be called by either a company’s director(s) or its member(s), where the shareholders hold at least 5% of the eligible votes and make the appropriate meeting request to the directors.

    Before a meeting can be held, a notice must be issued to shareholders, detailing the proposed resolutions. Share holders can also propose ordinary resolutions from the floor, if they meet the minimum threshold requirements (5% or 100 members). Ordinary resolutions require 50% majority support to be adopted. Generally, these resolutions relate to the day to-day business of the company, such as the appointment of directors or auditors. Special resolutions require a higher threshold of 75% support which is reflective of their importance.

    Generally share holders cannot overrule a Board decision, but in extreme circumstances they can apply to a Court to prevent the Board from carrying out a decision if deemed ‘oppressive conduct’. This occurs where the conduct of the company’s affairs is either:

    1. contrary to the interests of the members as a whole; or
    2. oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member.

    Read More.

    First published in B2B Magazine.

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  • Australian Employment Contract

    Australian Employment Contracts: The good, the bad & the uncertain

    “The law concerning the duty of good faith, if any, in employment contracts is currently in a state of flux, just as it is in the law of contracts generally.” — Mark Irving

    In 2012, barrister Mark Irving commenced the section on good faith in employment contracts in his text with that pithy summary of the uncertain legal position. He continued: “The following description of the law will be completely outdated once the High Court has resolved these issues.”

    When Mr Irving appeared before  Australia’s apex judiciary two years later, for the respondent in Commonwealth Bank of Australia v Barker, he must have wondered whether those words would prove prophetic.

    Unfortunately for Australian employment lawyers, the occasion has not yet arisen for Mr Irving to wholly revise his consideration of the implied term of good faith. While the High Court in Barker definitively rejected the implication of a term of mutual trust and confidence in employment contracts, they refused to consider its ‘sibling’, good faith.

    The plurality of French CJ, Bell and Keane JJ observed: “The above conclusion [regarding mutual trust and confidence] should not be taken as reflecting upon the question whether there is a general obligation to act in good faith in the performance of contracts. Nor does it reflect upon the related question whether contractual powers and discretions may be limited by good faith and rationality requirements analogous to those applicable in the sphere of public law. Those questions were not before the Court in this appeal.”

    Kiefel J provided a slightly lengthier consideration, pondering that ‘in some legal systems good faith is regarded as a vitally important ingredient for a modern general law of contract … This raises the question how other legal systems cope without it.’

    Yet she too refused to delve further. Despite admitting that the question had not been resolved in Australia, as it was not raised in argument she concluded: “It is therefore neither necessary nor appropriate to discuss good faith further, particularly having regard to the wider importance of the topic.”. Read more.

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

    First published in Ethos.

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  • Section 46 of development standards

    Using clause 4.6 of the Standard Instrument to vary development standards

    Councils and developers are continuing to grapple with the process of amending development standards under clause 4.6 of the standard instrument local environmental plans. However, the trend in recent cases, including the recent decision in Zhang v Council of the City of Ryde , has been towards taking a more liberal approach to allowing variations to development standards.

    Clause 4.6

    Clause 4.6 allows a consent authority to grant consent for development, even though the development would contravene a development standard imposed by an environmental planning instrument, where the following requirements are met;

    1. the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

    a.  that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
    b.  that there are sufficient environmental planning grounds to justify contravening the development standard.

    2. the consent authority is satisfied that:

    a.  the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and
    b.  the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

    3. the concurrence of the Secretary has been obtained.

    Four2five Pty Ltd v Ashfield Council [2015] NSWLEC 9 was one of the first appeal cases to consider clause 4.6. In this case, the Court refused to vary the relevant development standards for two primary reasons:

    1. the written request failed to demonstrate that the grounds for departing from the standard were particular to the circumstances of the proposed development on the subject site; and

    2. the applicant had not demonstrated that compliance with the development standard was unreasonable or unnecessary, in addition to demonstrating that the proposal was consistent with the objectives of the standard.

    The Four2five case, other recent cases demonstrate a trend towards allowing variations where these two elements are not necessarily met. This is facilitated by the broad discretion given to the consent authority under clause 4.6.

    Applying clause 4.6 – a recent example

    Zhang v Council of the City of Ryde is the latest in a series of cases to apply clause 4.6. The case involved an application for the construction of in-fill affordable housing (multi-dwelling housing) in the low density residential zone (R2). The proposed development exceeded the 5m height requirement which applied and also exceeded the density controls for the zone.

    The applicant had prepared a written request to vary the relevant height and density controls. He argued that strict compliance with the standards was unnecessary, in part, because the proposed development would not have any unreasonable adverse impacts and would facilitate the provision of an additional dwelling house to be dedicated as affordable rental housing for a period of 10 years. Similar reasons were put forward to justify departure from controls on environmental planning grounds. The Council did not support the written request.

    Commissioner Brown reiterated that clause 4.6 imposes three preconditions which must be satisfied before the application could be approved:

    1. The consent authority must be satisfied that the proposed development will be consistent with the objectives of the zone;

    2. The consent authority must be satisfied that the proposed development will be consistent with the objects of the standard which is not met; and

    3. The consent authority must be satisfied that the written request demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances and there are sufficient environmental planning grounds to justify contravening the development standard.

    It is only if all of these conditions are met that consent can be granted to the application, subject to an assessment of the merits of the application.

    The Commissioner applied the now familiar approach to determining consistency with zone objectives by considering whether the development was antipathetic to the objectives. Like most zone objectives, the R2 zone objectives were relatively general. They did not specifically relate to building height and, although the objectives referred to the provision of housing within a low density residential environment, that term was not defined. The Commissioner accepted that the proposed development was consistent with the zone objectives.

    The Commissioner was also satisfied that the proposed development was consistent with the relevant objectives of the height controls, accepting that the development was both compatible with the character of the local area and would avoid any overshadowing impacts. The LEP did not include any specific objectives for the density standards and, although the development control plan did contain provisions which addressed density, these were in conflict with the density controls in the local environmental plan and were of limited assistance.

    The Commissioner went on to find that there were sufficient grounds to justify contravening both development standards in this case and approved the application on its merits. However, in contrast to four2five, the reasons relied on to justify the departure from the standards in this case were not necessarily site specific.

    The decision in Zhang follows another recent case, Randwick City Council v Micaul Holdings , in which the Court allowed a departure from development standards in comparable circumstances. Provided the processes required by clause 4.6 are followed, it therefore seems that a consent authority has a broad discretion as to whether to allow a departure from development standards under clause 4.6, even where the variation is not justified for site or development specific reasons.

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  • contract

    Small Business to benefit from the Unfair Contract Terms Regime

    Small businesses will soon enjoy the benefits of protection against unfair contract terms, previously available only to consumers, following Royal Assent given to the Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Bill 2015 on 12 November 2015. The Legislation will apply from 12 November 2016, giving businesses nearly 10 months to make sure their contracts are compliant.

    Currently protection from ‘unfair contracts’ is only available to consumers who enter into standard form contracts under Part 2-3, Schedule 2 of the Competition & Consumer Act (2010) (Cth). Yet, small business can be just as vulnerable to unfair terms and standard form contracts as consumers. Small businesses can lack the bargaining power to successfully negotiate changes to the terms of contracts or may simply lack the resources to identify unfair terms and understand their legal and practical risks. The Government has described the amendments as one which will “level the playing field in commercial transactions”.

    Under the Legislation, a small business will be able to seek relief with the courts being able to strike out terms considered unfair. The protection would apply to businesses with fewer than 20 employees at the time of the transaction and the upfront price payable under the contract is either:

    1. $300,000 or less; or
    2. $1,000,000 or less if the contract lasts more than 12 months.

    What is an unfair contract term?

    The Legislation does not propose to amend what an unfair contract term is, but simply extend the right to claim that there is an unfair term by small business.

    Pursuant to section 24 of the Act, a term is unfair if:

    1. it would cause a significant imbalance in the parties’ rights and obligations under the contract; and
    2. it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and
    3. it would cause detriment (financial or otherwise) to a party if it were applied or relied on.

    However, all three limbs of the test must be made out, and the court must consider the contract as a whole before a term will be deemed ‘unfair’. Unfair terms can include terms permitting unilateral changes by one party, terms limiting the rights of one party, terms which penalise a party for breach and terms which permit the assignment of a contract to the detriment of the other without their consent.

    What is a standard form contract?

    Standard form contracts are usually template documents produced by one party and offered on a “take it or leave it” basis. Sometimes, but not often, standard form contracts can be one-sided and contain rights that go beyond the requirements to legitimately protect the drafter’s business interests and may, in fact, cause detriment to the other party.

    In determining whether a contract is a standard form Courts will consider:

    1. whether one of the parties has all or most of the bargaining power relating to the transaction;
    2. whether one party was, in effect, required to either accept or reject the contract in the form presented (i.e. whether they were given an effective opportunity to negotiate); and
    3. whether the terms of the contract take into account the specific characteristics of the transaction.

    The way forward

    The Legislation will affect all contracts made on or after 12 November 2016, and will also apply to existing contracts that are renewed after this date. Businesses have a one year grace period to review and amend their existing standard form contracts to ensure compliance.

    Obviously we recommend seeking advice on your contract terms if you are unsure about the legal or practical implications however the extension of the unfair contracts regime will provide comfort to small businesses that cannot afford to negotiate or seek such advice on its contracts.

    By Katie Innes, Director, Business Law

    This article is intended to provide a summary of the subject matter only. It does not purport to be comprehensive or to render legal advice. No one should act on the basis of any matter contained in this article without first obtaining specific professional advice.
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  • social media and performance management

    Social Media & Small Business Politics

    Social media has irrevocably changed the way people communicate and do business. It allows individuals and businesses to engage in a multifarious communication and exchange of information and ideas in real time. That said, whilst social media is both convenient and readily accessible, there can be serious consequences for failing to appropriately manage its use, due simply to the inherent risks that exist in using a technology with such instantaneous impact.

    The objective of social media is to create a dialogue with your existing and potential customers. Participation is imperative; having a passive social media “presence” is not generally enough to generate a positive business outcome. You need to understand the technology, have a plan for proactive engagement and be both energetic and consistent in your use of social media.

    A business owners’ focus should be on developing and sustaining a great business and investing in its success. This calls for a broad vision and an open mind when it comes to marketing techniques. With a solid plan and proactive strategy, adding a social media approach can maximise your business’ market presence while (importantly) controlling the risks posed by potential breach of copyright or misleading representations. The most effective way to minimise the risk to your business is to have appropriate terms and conditions and disclaimers for your website.

    To learn more, download our free eBook.

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  • construction waste

    One person’s waste is another person’s treasure: or is it?

    Court finds that recycled demolition material is still waste

    On 5 May 2016in EPA v Terrace Earthmoving PL (No 3) [2016] NSWLEC 50 (Terrace No 3) the Land and Environment Court (LEC) found Terrance Earthmoving Pty Ltd and its sole director guilty of four related offences under the Protection of the Environment Operations Act 1997 (Act) of transporting building waste material to a place that cannot lawfully be used as a waste facility even though the material was ultimately being reused in road construction. This decision is noteworthy for those seeking to reuse, recycle or recover scrap demolition material in New South Wales.

    The case concerned the actions of Terrace Earthmoving who carried out demolition and excavation work to various buildings. The company removed unwanted by-products, consisting of crushed rock, broken bricks, tiles and concrete and then transported them for use in the construction of a road on private land. Despite the materials being reused, the finding of guilt was based on the Court’s finding that the demolished building materials were waste because they were unwanted by the original owners of the demolished buildings.

    The outcome follows earlier decisions of the LEC and NSW Court of Criminal Appeal in the case. The earlier decisions concerned whether the material removed and transported should properly be considered ‘waste’ within the meaning of the Act. In the first instance, the LEC considered that the material was not waste because, amongst other things, the material was not unwanted or surplus as it was intended to be reused for road construction. However, the NSW Court of Criminal Appeal overturned that decision and held that it is immaterial whether the end user or transporter had a use for the material. Rather, the Court of Criminal Appeal determined that transported material will be waste for the purposes of the Act if the original owner of the material had no continuing use for it at the time of the material is transported.

    In Terrace No. 3, the LEC applied the findings of the Court of Criminal Appeal to the evidence that was presented by the EPA. It found that the transported material was waste because it was clearly unwanted by the original owners of the buildings being demolished, regardless of whether the material was sorted or crushed onsite prior to transportation to be used for other purposes. It then went on to consider whether the land where the road was being constructed by Terrace Earthmoving could, at the time the waste was deposited, be lawfully used as a waste facility for that waste. In finding that it could not, the LEC noted that there was no licence under the Act or development consent under the Environmental Planning and Assessment Act 1979 to use the property as a ‘waste facility’ and that both of these authorities were required.

    The matter has now been listed for a sentencing hearing where Terrace Earthmoving and the director of the company face maximum penalties of $1 Million and the $250,000 respectively.

    This decision is an important reminder of how broad the concept of waste is – and the potentially serious consequences for persons who transport or source waste material for reuse, recovery or recycling waste from or into New South Wales without obtaining the necessary approvals.

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  • privacy

    Public servants privacy: ABC Radio National interview

    Bradley Allen Love Legal Director John Wilson was recently interviewed  on the Privacy of Public Servants by ABC Radio National for their Background Briefing program.

    The Fair Work Commission has ruled that Centrelink’s decision to sack an employee for anonymous posts critical of the department on a discussion group was a “gross intrusion on the private lives of public servants”.

    The Department is now appealing. What a public servant is free to say is now being fought in the courts.

    Legal Director John Wilson says Daniel Starr’s case is important for a couple of reasons, mainly because the Commission makes a distinction between senior and lower level public servants, and spells out how admin workers are unlikely to derail government policy, no matter how critical they are online. Listen to the full interview below.

    Interview conducted by ABC, more information available here.

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  • caveat property - residential real estate and conveyancing

    Sitting pretty? – can you caveat your debtor's property?

    It’s a common scenario: you’re owed money and your debtor is refusing to pay. Surely the next step is to protect your debt by lodging a caveat over the land they’re sitting on, right? Wrong. The mere existence of a debt is no basis for lodging a caveat. If you lodge a caveat without reasonable cause, then you could end up compensating your debtor for your actions.

    A caveat is a form of statutory injunction; a ‘notice to beware’ that flags to the world that someone other than the property owner holds an equitable interest in the land. Where properly lodged and recorded on the property title, a caveat will thwart registration of any other interests, and prevent the property from being transferred or otherwise dealt with until the caveat is removed; it effectively freezes all dealings with that property.

    However, before you can properly lodge a caveat, you must have a “caveatable interest”. Whilst there is no comprehensive definition of that term under ACT law, it must always constitute an “interest in the land”. This could be a purchaser protecting their interest pursuant to a sale contract before the purchase is settled, a trustee registering an interest held pursuant to a trust deed, a charge granted over your property as part of a guarantee, or a formal or informal mortgage. The mere existence of a debt will not be sufficient. A debt does not give the creditor any proprietary interest in the land, being merely a contractual right to sue for the return of the money. A debt is not a caveatable interest.

    If you register a caveat without a valid caveatable interest, the Land Titles Act 1925 (Act) confirms that you could be liable to pay “just compensation” to the owner. Such compensation could extend to the owner’s legal costs or far more where a sale or lease of the property is lost or delayed. If you’re considering extending credit or entering a credit arrangement with a customer or client, and want to ensure you have a “caveatable interest”, then make sure you get security over the land at the outset, upfront and in writing. Such security is much more likely to be granted at the time the credit, goods or services are provided, than later on when things go wrong. If you’ve got developing concerns about an existing debtor, ask for additional security before granting further credit. Be proactive and protect yourself early; if you wait until the money runs out, then you could be out of luck.

    First published in B2B Magazine.

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  • free speech

    Daniel Starr v DHS: laws on public servants' free speech

    The right to criticise government should be protected, not punished, in a liberal democracy.

    The Fair Work Commission’s recent reinstatement of a long-serving Centrelink officer is a blow to the federal government in its ongoing battle over its ability to regulate the private lives of APS employees. Yet the Department of Human Services’ decision to appeal suggests it will not give up without a fight.

    Over the past decade, frontline Centrelink employee Daniel Starr had anonymously posted work-related comments on internet forums out of hours. Most were of a helpful nature, advising benefit applicants of likely processing times, although some were undoubtedly objectionable: at one point Starr labelled clients “spastics and junkies” and on another occasion he said he was “embarrassed to work” at Centrelink.

    Starr’s troubles began when he began contradicting a departmental social media officer who posted on the same forum. The officer repeatedly said that the estimated processing time for certain applications was 21 days, while Starr explained that the target had in fact been changed to 42 days. Although his posts were forthright – “Please Flick, you need to stop giving this incorrect information” – they were hardly rude. Read the full article here.

    Written by John Wilson, Employment Law Director.

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  • silence public servants

    Political communication: Be wary, public servants, of speaking freely in an election year

    With two elections forthcoming in Canberra this year, it’s worth commenting on the ability of public servants to speak their mind on political communication and political matters. Since this column last touched on the topic last year, there have been two noteworthy developments.

    In December, the Federal Court delivered judgment in a challenge by an Australian Army Reserve major, Bernard Gaynor, against the termination of his commission. Gaynor had repeatedly made comments critical of homosexuality and Islam, alongside attacks on Defence Force policies and practices. For example, in January 2013, he tweeted: “I wouldn’t let a gay person teach my children and I am not afraid to say it”, while later he issued a media release titled “Defence shows hypocrisy with gay officer”.

    Gaynor even lodged a complaint against the Defence Force for permitting other personnel to march in uniform at Mardi Gras, and continued to make public comments despite being instructed by a commanding officer to cease “intemperate or inflammatory remarks on social media”. He was eventually issued a termination notice, to which Gaynor mounted a strident response: “I note that logically this means the ADF has a hierarchy of members and that homosexual and Islamic members have more right to be offended than Catholics.”

    Following the termination of his commission, Gaynor challenged the decision on administrative and constitutional law grounds. While the former failed, Gaynor succeeded on a freedom of political communication basis.

    The Defence Force had submitted that a burden on free speech was justified because it was directed towards the maintenance of the chain of command, the avoidance of danger to military personnel and the protection of its reputation. Such reasons are not dissimilar to those proffered in a public sector context: the efficient operation of government and the preservation of an impartial and neutral public service are often cited as reasons to restrict the political communication of APS employees.

    Justice Robert Buchanan had little sympathy for these arguments in the broad form presented – they were “essentially speculative” and “the same may be said of any comment of the same kind from any source”. Instead, the decision turned on whether Gaynor’s commission was terminated because of his comments, or because he made the comments in connection with his service (in which case his termination might have been defensible, especially in light of an explicit direction to remove material linking his comments to the ADF).

    Buchanan observed that Gaynor’s statements “were made while the applicant was not on duty, not in uniform and not doing anything connected with the ADF except criticising it and certain of its members”. While accepting the need for “discipline, obedience to orders and adherence to [ADF] standards”, particularly by full-time personnel, Buchanan concluded “the applicant’s commission was terminated because of the publication of his private views about political matters”.

    As there was insufficient connection “with any legitimate legislative aim to displace the freedom of political communication implied in the constitution”, the termination was set aside. The Defence Force has lodged an appeal, which will be heard by the full Federal Court in May, and the matter seems destined for an eventual airing in the High Court.

    In light of Gaynor’s success, the Public Service Commission issued updated guidance in its final newsletter of 2015. Admitting that the current legal position is unclear – “this is an evolving area of the law that attracts considerable attention” – the commission identified the conflict at the heart of this topic. “The commission’s guidance on this question asks employees not to do, or say, anything that might cause a reasonable person to question their ability to serve the government of the day impartially,” it said. “At the same time, employees have a right to a private life.”

    The appropriate balance to be struck between these competing principles has been considered twice in the past decade or so, in Bennett v President, Human Rights and Equal Opportunity Commission and Banerji v Bowles. In the former, a regulation restricting APS employees’ ability to disclose official information was invalidated on free-speech grounds; in the latter, a public servant facing disciplinary action after publishing tweets critical of departmental policy lost her application for interlocutory relief.

    While Gaynor’s case is distinguishable from Bennett and Banerji – service personnel are not employees and distinct considerations arise in the military context – its final outcome may have broader implications. In the interim, public servants are advised to tread carefully when commenting publicly – on social media or elsewhere – about sensitive political matters.

    This is hardly a satisfactory position, and it can only be hoped that the Gaynor appeal brings clarity (although a case involving an APS employee will probably be needed before the situation is resolved definitively). Public servants should enjoy in their private life the same protections from encroachments on their ability to speak freely as every other Australian. While some legitimate exceptions may arise on matters connected to their (public sector) employment, these should be “carefully contained and fully justified”.

    When I last wrote on this topic, I quoted a Canadian judge, cited in Bennett, to the effect that “public servants cannot be … ‘silent members of society’ “. That sentiment is worth repeating.

    Many would think Gaynor’s comments were deeply offensive and the Defence Force had strong justifications for terminating his commission. Yet as English writer Evelyn Beatrice Hall once noted (in an observation often misattributed to Voltaire), “I disapprove of what you say, but I will defend to the death your right to say it”.

    Offensive or not, public servants should be given ample room to speak their mind on political matters. Continued uncertainty in this area of the law reflects poorly on the state of political communication in this country. With impending territory and federal elections, that should be a cause for real concern.

    First published in The Canberra Times.

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  • personal property register

    Personal Property Securities Register: PPSR – PPS huh?

    It has now been over four years since the Personal Properties Securities Act 2009 (Cth) (PPSA) took substantive effect on 30 January 2012.However, many businesses remain oblivious to the PPSA register and the serious consequences that can follow its oversight. So what is the PPSA and what is the risk in ignoring it?

    The PPSA established a new, national system for managing and recording all secured lending over personal property. For businesses, it applies to stock and inventory, plant and equipment and vehicles. If your business sends out or receives ‘property’ on consignment, allows suppliers to take goods on credit or accepts such property as security for outstanding debts, then you need to understand the PPSA. If you ignore the PPSA on the basis that “it doesn’t affect me” or “this is how I’ve done business all my life, I’m not going to change”– then you’re likely to lose.

    The PPSA created a system of priority for secured and unsecured creditors. It is effectively a ‘first registered, best dressed’ policy, whereby the first creditor to register generally takes primacy over later creditors (registered or unregistered). This means that if your business hasn’t registered its “security interests” on the Personal Property Securities Register (PPSR), then you could miss out when it comes to reclaiming the property you have title to or security over.

    A basic example will help to illustrate this concept:

    Your company imports and assembles bicycles. You sell some to “Bike Co” on credit. Your terms and conditions state that “We retain all title to the bicycles until invoices are paid in full” but you do not register a security interest on the PPSR. You have transferred possession but not ownership of the bicycles to Bike Co.

    Bike Co goes under and appoints a liquidator. You try to get your bicycles back but the liquidator claims they are now owned by them.

    Under the old system, if your invoice asserted ownership until goods are fully paid, you could probably get your bicycles back. But under the PPSA, you lose ownership because you failed to protect your ownership rights and obtain “secured creditor” status by registering a security interest. Any Bike Co property which is unencumbered by a perfected (registered) security interest now vests with the liquidator (Corporations Act 2001, section 588FL). If you had registered, then you would likely take priority over the liquidator and recover your property.

    The danger for businesses which ignore the PPSR is clear: if you fail to register, you may get nothing, not even your own property. If you’re still saying “Huh?” to the term ‘security interest’, PPSA or PPSR, then seek advice and get your interests registered soon to help protect your business and your livelihood.

    First published in B2B Magazine.

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  • social media and performance management

    Effective Management of Workplace Disrepute by Employees

    As Benjamin Franklin once said, “Glass, china, and reputation are easily cracked, and never well mended.” It is commonplace in the modern workplace for contracts of employment to include terms giving the employer the right to terminate the employment relationship if the employee brings the employer’s business into disrepute. But how is one to judge whether damage has been suffered to one’s reputation?

    The answer is not always as simple as one might first assume.

    With the rise of social media and other ‘instant’ sources of publication, the ability for content harmful to a business’ reputation to go viral is at an all-time high. However, whether this has any nexus with the employment relationship is worth considering closely.

    For employers, the probability of their employees posting, or being tagged in, posts containing content that could be said to bring disrepute upon their workplace is an evergrowing risk.

    Few areas of an individuals’ life are now fully led behind closed doors. Such was certainly so for Scott McIntyre, the former employee of and reporter for the SBS, who was famously sacked for his Tweets surrounding ANZAC Day. The SBS did not appreciate being associated with those Tweets (McIntyre’s Twitter profile referred to the fact that he was an SBS journalist).

    More recently, there has been the concern expressed by the Sydney Roosters rugby league team and the National Rugby League about the alleged private activities of the Roosters captain, Mitchell Pearce, which found their way into the public domain via social media.

    An example that this article will consider is personal recreational drug use, and its causal link with, and repercussions that it might have on, an individual’s workplace, particularly when linked through online forums.

    At the click of a button, social media content can be instantly published, with audiences often measured in the thousands (or more). Social media rarely requires the approval of all concerned before publishing occurs, creating breeding grounds for morally questionable content. Naturally, it has been a struggle for Australian courts to respond to this, in the face of the sheer amount of content being posted by Australians to social media sites. Read the full article here.

    By John Wilson, Managing Legal Director, Employment Law, and Kieran Pender.

    First published in Ethos, the ACT Law Society’s journal.

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  • Alan Bradbury, John Wilson and Mark Love have been announced Best Lawyers in their respective fields.

    Bradley Allen Love Recognised in Best Lawyers List 2016

    Bradley Allen Love are pleased to announce that four of its Legal Directors have been recognised for their legal excellence in the latest edition of Best Lawyers. Produced by a peer review company and published by the Australian Financial Review, the list is compiled following an extensive evaluation process.

    For the seventh consecutive year Alan Bradbury (Government Practice and Planning and Environment Law) has been acknowledged for his expertise. Managing Legal Director John Wilson makes his fourth appearance in the list (Labour and Employment Law, Occupational Health and Safety Law), while Mark Love (Commercial Law, Insolvency and Reorganisation Law) and John Bradley (Leasing Law, Real Property Law) were again recognised for their respective practices.

    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.

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  • Reasonable Adjustment The disability to discriminate lawfully

    Reasonable Adjustment: The disability to discriminate lawfully

    “It takes an open-minded individual to look beyond a disability, and see, that ability has so much more to offer than the limitations society tries to place upon them.” — Robert M. Hensel

    Injuries or disability outside of work — whose responsibility?

    If an employee is injured in the course of their employment, the path forward is relatively clear: workers’ compensation legislation enacted across the Commonwealth and all its States and Territories provide a mechanism for the employees to be compensated, and a statutory program to manage their rehabilitation and return to work.

    The situation is different for an employee who becomes injured or acquires a disease in circumstances unrelated to their employment, and that injury or disease affects their ability to satisfactorily carry out their duties.

    What then is the employer obligated to do; where lies the legal tipping point on the balance beam between mandated compassion, and permitted self-interest?

    Putting the human element to one side, such circumstances present obvious practical difficulties for the employer — they will likely want to minimise the time, costs, and risks inherent in making “adjustments” for the injured employee, whilst ensuring they do not take any action that might open them up to an expensive lawsuit under the Disability Discrimination Act 1992 (Cth) (DDA).

    Yet for the employee, the consequences are certainly graver. Not only do they have to deal with the physical and emotional burdens of the injury itself, but also with the risk that they may lose their livelihood because of it. Read more.

    By John Wilson, Managing Legal Director, Employment Law, and Kieran Pender.

    First published in Ethos, the ACT Law Society’s journal.

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  • insolvency

    Insolvency: National Agenda of Credit Risk in Focus

    ‘The statutory regime that governs the realm of corporate insolvency and personal bankruptcy has long been a point of contention between the business community and regulators, a balancing act that each side felt too often erred in favour of the other. The recently published recommended changes to Insolvency Laws, introduced as part of the Commonwealth’s National Innovation & Science Agenda, foreshadow a ‘cultural shift’ in this regard, but gave scant detail as to what the Government is actually proposing to do.¹ At this stage, all we know is that it wants to strike “a better balance between encouraging entrepreneurship and protecting creditors by:

    • Reducing the current default bankruptcy period from three years to one year;

    • Introducing a ‘safe harbour’ for directors from personal liability for insolvent trading if they appoint a restructuring adviser to develop a turn around plan for the company;

    • Making ‘ipso facto’ clauses [allowing contract termination for insolvency] unenforceable if a company is undertaking a restructure.” ²

    A proposal paper will be released in the first half of 2016 with legislation to follow by mid-2017; and so we are, for the present, left to anticipate what will be offered.

    Whether or not the changes are retrospective, it will be the existing contractual arrangements and structures that you have in place when these laws come into effect which will determine the degree to which you, as a creditor, are affected and to what extent you “lose” as a consequence of any “loosening” of the rules.

    The core answers to mitigating potential loss when dealing with persons or corporations facing insolvency remain unchanged:

    1. Know who you are trading with;

    2. Make sure any credit terms are tight, tidy and capable of enforcement;

    3. Take security – hold guarantees, charges and make sure those interests are registered; and

    4. Keep your debtor balances within a manageable range – overextending credit increases your problem and postpones theirs.

    The unforeseen losses suffered by traders whose clients fail to pay a debt have a flow on effect and, as the economy tightens, the effect becomes more so. Pre-empting risk is what good “innovators” do, and steps should be taken to protect your valuable cash flow.

    It is encouraging that the Government might introduce changes that allow corporate restructures before that step into the great unknown of “Administration” or “Liquidation”, but for most of us, we need to remain vigilant in reducing the risk we might otherwise unwittingly assume through our associates’ risk taking behaviours.

    First published in B2B Magazine.

    1 http://www.innovation.gov.au/page/agenda (released 8 December 2015).

    2 http://www.innovation.gov.au/page/insolvency-laws-reform

     

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  • Director Liability - Highway to the danger zone

    Director Liability - Highway to the Danger Zone

    The key benefit of a company structure is the separate legal personality that the company has from its controllers (directors) and its owners (shareholders) and the protection given to those individuals if the worst occurs and the business goes bust; but if you think that a director therefore has no liability, you are mistaken.

    We often hear about instances of director liability for breaches of directors’ duties (trading whilst insolvent for example). However there are more obvious (although less talked about) instances of personal liability that directors may overlook; consider personal guarantees and incorrectly signed contracts.

    Where suppliers or financiers are concerned about a company’s ability to repay its debts, they may request personal guarantees. These can expose a director’s personal assets. For multiple directors, the guarantees could be joint and several. So whilst a director may believe she/he is ‘equally liable’ with fellow directors, nothing prevents a creditor pursuing only some (or even one) of the guarantors. In such cases, creditors are inclined to pursue the guarantor with the greatest apparent wealth.

    There are two particularly dangerous aspects of personal guarantees:

    • Continuing guarantees, which are not limited in time and thus may make the guarantor liable for past, present and future obligations; and
    • All money guarantees, where there is no financial limit on the guarantee provided.

    Ceasing to act as a director may not and typically does not release you from your guarantees. It requires active steps to achieve the release of a guarantee. A guarantee is a separate contractual assurance.

    Directors should also be wary about signing contracts incorrectly, where the danger of personal liability again looms overhead. In the recent decision of Knight Frank Australia Pty Ltd v Paley Properties Pty Ltd [2014] SASCFC 103, the Court made it clear that an agent incorrectly purporting to have authority to contract on behalf of their principal will be personally liable. If a director executes a contract as “company agent”, rather than signing as the company itself, that director warrants that they have the appropriate authority to enter that contract. The Knight decision highlights that directors could be liable if that authority proves faulty and the company fails to adopt the contract.

    For directors, the scope of personal liability extends beyond a breach of director’s duties. Signing a personal guarantee or incorrectly signing a contract can be just as dangerous. Ensuring you’re appropriately released from obligations and have proper authority to deal on behalf of the company can help you steer clear of that road to (personal) ruin. If you have concerns as to your personal exposure as a director, seeking professional advice early can help mitigate the risks.

    By Mark Love, Managing Legal Director, Business Law.

    First published in B2B Magazine.

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  • Debt Management

    Mates - a cautionary tale about debt and debt management

    Debt & Debt Management

    Debt and debt management seems to conjure up images of dread and sometimes this is for good reason.

    Dun & Bradstreet have recorded that invoice payments are reaching a record pace in 2015, with average payment dates being 50.4 days Australia-wide and 53.3 days in the ACT1. That is a significant amount of time for businesses to be exposed to a reduced cash flow and reduced profit margins while seeking to maintain a strong financial position and grow their business.

    There are three aspects of debt and debt management – the good, the bad and the ugly. The discerning business owner should understand and develop a healthy respect for all three, from proactive debtor management to the risks of insolvency and ‘stick’ of director liability.

    Two of the statistics by Dun & Bradstreet’s recent report are particularly revealing:

    …46 per cent of businesses would choose to miss a payment to a trader supplier if without enough money to cover all of their expenses. …34 per cent of businesses have had a customer or supplier become insolvent or otherwise unable to pay them during the past year.

    A person or entity is insolvent if they are unable to pay all of their debts, as and when they become due and payable2. With 44%3 of commercial invoices in Australia being paid late, a large number of businesses are at risk.

    Bad debt management can cause your business to suffer financial constraints which, if not dealt with early and effectively, can also lead to its demise. Worse still, if a business owner ignores those constraints, continuing to trade without implementing strategies to reduce their debt and exposure, then they risk engaging in “insolvent trading”, which puts personal assets on the line to satisfy creditors, chief amongst them the ATO.

    Implementing efficient business systems to better manage these debts through early identification and prompt collection of overdue accounts can lead to improved cash flow and stronger financial positions.

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  • dispute resolution

    Dispute resolution: fast, efficient and effective

    Dispute Resolution

    Bradley Allen Love Lawyers recently assisted a client to resolve a dispute at the earliest stage with the minimum of fuss. There is nothing unique about that achievement, which accords with the aim to facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense. What this matter highlighted, though, is that it is essential to use lawyers that know how to recognise when a fight is worth having and have the capability to meet that challenge.

    The client was starting up his small business. He had previously been employed in a similar franchised business and decided to go into the industry himself. His start up business was a significant family investment and he wanted to ensure that it was successful. He initially made the mistake of giving his business a similar name to that of the franchised name of his former employer. This brought him to the attention of the franchisor, who demanded that he change the name of his business.

    Realising his error, the client changed his business name and proceeded with his business. Despite the change of business name, the franchisor then sued him for breach of a purported restraint of trade provision and also alleged that he was passing off his goods as though they were the franchisor’s goods.

    The franchisor had legal representation. In contrast, the client initially did not have representation because he was aware of the significant cost involved. The client did his best to conduct the matter; however, it was a distraction from his business and caused him great concern for his family’s investment. Eventually his son persuaded him to seek professional advice in relation to the claim, which by now had a hearing date set. The client realised his limitations and made an appointment to see Bradley Allen Love.

    Here was a new business operator who was facing a significant claim that threatened to ruin his business and his family investment.

    After reviewing the claim and the supporting documents, it was immediately apparent to Bradley Allen Love that the franchisor’s claims were all fundamentally flawed. It was time to resolve the matter before the costs began to mount for either party.

    After filing a defence that refuted each of the franchisor’s allegations, the client made a settlement offer to resolve the dispute. The settlement offer explained the client’s position and utterly dismantled each of the franchisor’s allegations. The franchisor accepted the offer. Fortunately, both parties are now able to put the matter behind them and get on with their respective business.

    If you have a commercial dispute, seek professional help at an early stage. Make sure you seek that help from a suitably experienced lawyer. Ideally, seek advice from an Accredited Specialist in Business Law; better still, if that specialist has access to an Accredited Specialist in Commercial Litigation.

    Bradley Allen Love has both.

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  • Enforcement and Compliance

    Enforcement and Compliance - Some Traps to Avoid

    Unlawful Development – Prosecution, Civil Enforcement or both?

    Sutherland Shire Council v Sud [2015] NSWLEC 44 (24 August 2015)

    Craig J

    The Land and Environment Court’s decision in Sutherland Shire Council v Sud serves as a useful reminder of the underlying principles, and key differences, between criminal prosecution and civil enforcement proceedings available under the Environment Planning and Assessment Act 1979.

    A key feature of this case was the Council’s decision to utilise both mechanisms against the Respondents in relation to development that had been carried out otherwise than in accordance with the development consent. The Court ultimately endorsed the Council’s approach as it acknowledged that the consequence of one action was to punish the offender, while the other was aimed at remedying the environmental harm caused by the breach. The order in which criminal and civil proceedings are taken is, however, of fundamental importance in achieving these desired outcomes.

    Background

    Before the Council commenced civil enforcement proceedings in the Land and Environment Court it had prosecuted Mr Sud in the Local Court in relation to the unauthorised development. Mr Sud entered a plea of guilty and the Local Court convicted him and ordered him to pay a fine in the sum of $30,000.00 as well as the Council’s legal costs in the sum of $9,634.00.

    Issues and legal principles

    In responding to the Council’s civil enforcement action, the respondent argued that bringing civil enforcement proceedings under section 123 of the Act was an abuse of process because the statutory scheme required the council to elect to either prosecute for an offence or to seek civil enforcement, but not both. To find otherwise, it was argued, would result in a “double punishment”.

    The respondents’ argument was based on their construction of section 127(7) of the Act. That provision is in the following terms:

    (7) A person shall not be convicted of an offence against this Act or the regulations where the matter constituting the offence is, at the date upon which the conviction would, but for this subsection, be made:

    (a) the subject of proceedings under section 123, which proceedings have not been concluded, or

    (b) the subject of an order made under section 124.

    Proceedings taken under section 123 and orders made under section 124 are civil enforcement proceedings.

    The Court rejected the respondents’ argument and held that section 127(7) does not require a council to make an election between criminal prosecution or civil enforcement proceedings. However, the Court confirmed that a council needs to think carefully about whether, and when, to commence civil enforcement proceedings because the commencement of civil enforcement proceedings under section 123 or the making by the Court of an order remedying or restraining a breach of the Act under section 124 will prevent a council from subsequently taking criminal action for an offence based on the same breach. The Court explained that the basis for this restriction is enshrined in the procedural fairness principles applicable to a criminal prosecution, such as the right to silence. Procedural fairness precludes a criminal prosecution (which must be proved to the criminal standard of “beyond reasonable doubt”) taking place if the issues have already been aired and decided in a civil case (where the relevant standard is lower: “on the balance of probabilities”).

    In coming to this decision, the Court discussed the different purposes of criminal proceedings and civil enforcement proceedings. The Court explained that criminal proceedings are intended to punish the offender, to deter both the offender and others from engaging in similar conduct in the future, to publicly denounce the offender’s behaviour and to recognise the relative harm caused by the offence in the sentence imposed.

    By contrast, the Court observed that civil enforcement proceedings are intended to remedy or restrain breaches of the Act and do not involve any element of punishment. This led the Court to conclude that the statutory scheme did not expose a person to “double punishment” and that the commencement of civil enforcement proceedings following a successful prosecution did not amount to an abuse of process. It was open to the council to take both criminal proceedings and civil enforcement proceedings in relation to the same incident provided the criminal proceedings were dealt with first.

    Giving orders – the importance of careful drafting

    Manly Council v Leech [2015] NSWLEC 149 (17 September 2015)

    Biscoe J

    This case is yet another in which the poor drafting of an order has led to the Court holding it to be invalid. The order in this case was an order given under section 121B of the Environmental Planning and Assessment Act 1979; however, the Court’s findings apply with equal force to orders given under section 124 of the Local Government Act 1993.

    When giving notice of a proposed order and also when giving an order, it is very tempting to cut and paste from earlier notices and orders given by the council. As this case demonstrates, this can be dangerous. It is very important to make sure that the information contained in a notice of proposed order is the information required to be included in such a notice and that the recipient is being given an opportunity to make representations about whether the order should be given and, if so, in what terms. Likewise, it is essential that the information contained in any subsequent order is clear and unambiguous and does not create any confusion about whether it constitutes an order that must be complied with or is simply notice of an order that the Council is intending to give in the future.

    The order the subject of the Court’s decision in Manly Council v Leech was a “stop work” order given pursuant to item 19(a) of the Table to section 121B. While it is open to a council to give notice of a proposed order pursuant to item 19 of the Table to section 121B (and it will often be good practice to do so), the Act does not require notice to be given of such an order: section 121D(a).

    The “order” the subject of the proceedings was in the following terms:

    ENVIRONMENTAL PLANNING & ASSESSMENT ACT 1979

    SECTION 121 B

    ORDER

    TAKE NOTICE that Manly Council (“Council”) intends to give to you an Order in terms of Order No 19(a) in the Table to Section 121B of the Environmental Planning and Assessment Act 1979 (“the Act”) in the terms set out below on the grounds that building works are being carried out unlawfully in contravention of the Act. [emphasis added]

    Below that there followed a page and a half of words under the headings: Schedule of Works, Time Period for Compliance with Orders, Reasons for Order, Offence, Penalty, Execution of Order by Council, Right of Appeal Against Order, and Orders that Make or are Likely to Make Residents Homeless.

    The Court observed that a statutory order requiring someone to do, or not do, something that is subject to penal consequences will be strictly construed. Consequently, the validity of such an order depends on strict compliance with the statutory conditions governing its issue, and it will not be enforced by the Courts unless the order is expressed in clear and unambiguous language.

    In the present case, the Court pointed out that the document began by stating that the Council “intends” to give an order. It was framed in terms of an order the council intended to give in the future and the Court found that this led to confusion about whether the Council required immediate compliance with the order or whether it was merely giving some sort of warning notice. In those circumstances the Court held that the order was invalid.

    This case serves as a timely reminder for councils to review the template documents they use for the giving of notice of proposed orders and for giving orders to ensure that, if challenged, they will stand up to scrutiny by the Court.

    Read more
  • Sweatworking 2015

    Sweatworking 2015 - It is time to network, the Bradley Allen Love way!

    Are you ready to get your organisation Sweatworking and show your competitive winning side?

    Then put together your team/s and start training now to compete in Sweatworking ® – our physical challenge networking event. With a new date, new venue and new charity partner – Duo Services – this event is set to be bigger than ever!

    Sweatworking 2015

    Sweatworking 2015

    WHAT IS SWEATWORKING?

    Your organisation’s team of 4 will complete 10 fitness stations – each with its own unique challenge. Our fitness partner Ignite Nutrition and Fitness have devised a gruelling circuit style program – the more reps, the more points! All of your team registration fee will be donated to DUO, our 2015 Charity Partner.

     

    We hope to see you there!

    2014 PARTICIPATING ORGANISATIONS

    ActewAGL | Beames and Associates | Bradley Allen Love | Canberra Labor Club Limited | Cataldos | Colliers International | Commonwealth Bank of Australia | Construction Control | Deloitte | Godfrey Pembroke | Kazar Slaven | KPMG | Land Development Agency | Lifeline Canberra | Ray White | RSM Bird Cameron | Schiavello (ACT) Pty Ltd | The Vikings Group | Trilogy Funding | University of Canberra

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  • Christmas Party Legalities

    Employment Law: Lessons From the Ghosts of Christmases Past

    Christmas Party Warnings

    Christmas in July has come and gone, marking the end of another round of workplace celebrations, and the slow march back from solstice to silly season. During this intervening period of calm it is perhaps timely to remind employers and employees alike of the perils and pitfalls of the infamous work Christmas party.

    Such events are intended to allow staff to mix and mingle while celebrating all that was achieved over the course of the year. Yet often it is also used as an excuse to take advantage of a bottomless bar tab, and an excess of social lubricant has been known to cause some slip-ups.

    The recent case of Keenan v Leighton Boral Amey Joint Venture provides a stark illustration of what can happen when an employer fails to take the proper precautions before, during, or after a Christmas work party. Some may also learn lessons from Mr Keenan’s conduct.

    The Keenan case involves an employee who helped himself to the unlimited supply of alcohol at a staff Christmas function before embarking on what could be described as a “rampage” of misconduct, swearing at managers and making overt sexual advances to female colleagues. The employer dismissed Mr Keenan in the New Year, but the Fair Work Commission (FWC) ordered his reinstatement on the basis that much of the conduct occurred “out of hours”.

    The Facts

    Mr Keenan was a ‘Team Leader’ for his employer, Leighton Boral Amey Joint Venture (LBAJV), a company which carries out road maintenance work in Sydney under a contract with the NSW Roads and Maritime Services. LBAJV held a Christmas Party at a hotel between 6pm and 10pm in December 2014. Before the party, the employees were warned that LBAJV’s policies and procedures were to apply during the function.

    During the party (which was not supervised by any LBAJV manager), the hotel staff were obliged to serve alcohol in compliance with their responsible service of alcohol requirements. However, in practice, the service of alcohol was not appropriately restrained or regulated, to the point where later in the night the attendees were simply left to help themselves.

    Mr Keenan certainly did “help himself”, downing around ten beers and one vodka and coke between the hours of 7pm and around 11:15pm. Read More.

    By John Wilson, Managing Legal Director, Employment Law.

    First published in Ethos, the ACT Law Society’s journal.

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  • investigation

    PLANNING LAW UPDATE – Reinforcements have arrived!

    The wait is over – amendments to the Environmental Planning and Assessment Act 1979 which confer significantly improved investigation powers on Councils commenced on 31 July 2015. The amendments also create new offences and establish a new hierarchy of offences which attract higher penalties and distinguish between offences committed by individuals and corporations.

    The amendments to the Act are supported by amendments to the Environmental Planning and Assessment Regulation 2000 (Amended Regulations) which also came into force on 31 July 2015. The Amended Regulations contains important transitional provisions and a revised schedule of penalty notice offences including higher penalties.

    Investigation powers

    The new provisions expand the powers of an “investigation officer” bringing them in line with the powers of an “authorised officer” under the Protection of the Environment Operations Act 1997. Relevantly, the new provisions enable an investigation officer to:

    1. Enter any premises on which any industrial, agricultural or commercial activities are being carried out, at any time those activities are being carried out: s.119D(1).
    2. Require a person to furnish such information or records (or both) in connection with an investigation purpose where the request is made in writing: s.119J.

    These provisions allow councils significantly greater scope to obtain information and evidence in relation to investigations into possible breaches of the Act.

    The amendments also provide that an investigation officer is now able to commence criminal proceeding within, but not later than, 2 years after the date on which evidence of the alleged offence first came to the attention of that investigation officer: section 127(5A). Prior to the amendments, this provision had only applied to authorised officers of the Department.

    Investigation officers

    The new provisions have moved away from the terms “a person authorised” and “authorised officer” and instead confer powers of investigation on an “investigation officer”. That term refers to both departmental officers and council officers, unless otherwise specified.

    An “investigation officer” is a person appointed in accordance with s.119B. The requirements for appointment vary depending on whether the appointment relates to an individual or a class of persons. Relevantly:

    1. In the case of an individual appointment – the appointment must be made by written instrument.
    2. In the case of the appointment of a class of persons – the appointment must be made by notice published on the NSW planning portal or in the Gazette.

    To date the Minister has not authorised a class of persons as “investigation officers” for the purpose of s.119B of the Act. As such, in order for council officers to rely on the new investigative powers of the Act, councils must ensure that relevant council officers are formally appointed, in writing, as an investigation officer.

    However, the Amended Regulations provide that Council officers who were authorised by a council under s.118A(1) of the Act, being an authorisation to enter any premises, immediately before the commencement of the new provisions will be taken to be a “council investigation officer” for the purposes of the amended Act.

    While this assists existing council staff who were authorised persons under the unamended Act, as the Council’s power to appoint an investigation officer under the Act did not previously exist, Councils will need to delegate the new power to their general managers before general managers will be able to make new appointments to the position of investigation officer.

    New offences

    The new provisions also create new offences. It is now an offence to:

    • Aid, abet, counsel or procure another person to commit, or conspire to commit an offence against a provision of the Act or Regulations: s.125(3A).

    The introduction of this new offence allows councils to take action against persons who are indirectly involved in a contravention of the Act or Regulations, rather than just a person who was directly responsible for an offence. A person aiding, abetting etc an offence will be subject to the same penalty as the person who directly committed the offence.

    A further new offence is to be created in relation to the provision of false or misleading information in connection with a planning matter but that offence will not commence until 30 September 2015. The new offence will be contained within section 148B and will apply to both applicants and consultants.

    Higher penalties

    The new provisions of the Act are backed up by significantly higher maximum penalties which vary depending on the seriousness of the offence. In this respect the Act now lists three categories of offences. The hierarchy this creates provides clear guidance to councils, the courts and the community about which offences are deemed to be more serious than others.

    The Act now also imposes higher penalties for offences committed by corporations than those for individuals.

    The Amended Regulations include a revised schedule of penalty notice offences which is consistent with the new penalty regime of the Act (Schedule 5). The new schedule introduces additional items to the list of penalty notice offences and increases the penalty amount for most offences. The most serious offences are now subject a penalty notice amount of $6,000 for corporations and $3,000 for individuals, e.g carrying out designated development without consent. The changes to the penalty notice provisions commenced operation on 14 August 2015.

    Please contact Alan Bradbury if you have any queries about the application or effect of the new provisions of Act or Amended Regulations.

    Read more
  • floats like an intern, stings like a bee

    Floats Like an Intern, Stings Like an Employee: The Legality of Unpaid Internships

    The issue of unpaid internships, both in the legal sector and elsewhere, can be polarising. A 2012 survey found that 50 per cent of law student respondents had undertaken unpaid work experience, with responses ranging from ‘slavery’ to ‘valuable learning experience’.

    In both Australia and the United States of America, the ‘intern economy’ is flourishing. Yet on both sides of the Pacific, the legalities of offering workplace experience without remuneration are uncertain. In the US, several high-profile entertainment and publishing companies have faced law suits for failing to pay interns, while one such case was recently decided by the Australian Federal Circuit Court in Fair Work Ombudsman v Crocmedia Pty Ltd.

    This question has particular importance for both law firms and employment lawyers. As demonstrated by the Fair Work Ombudsman-commissioned survey, unpaid internships and work experience in the legal industry are commonplace. Although the specific circumstances will be paramount to determining the legality of such arrangements, unwary firms could find themselves prosecuted by the Ombudsman. For practitioners of employment law, the relevant law is complex and jurisprudence on this topic is still developing. If the litigious trend in the US finds its way to Australian shores, disgruntled interns could fire a barrage of legal action at unsuspecting employers.

    Moral Dilemma
    The internship issue is, as Riethmuller J acknowledged in Crocmedia, ‘a difficult topic’. When interns actively apply for these unpaid roles, and employers act “charitably” by allowing them the opportunity to gain essential experience, it is difficult to feel sympathetic. This is particularly so when it is the intern primarily benefiting from the arrangement — perhaps in an observational role where they are not producing any substantive work for the employer.

    Yet as the boundary between internship and employment blurs, broader moral issues arise. In a 2013 report for the Fair Work Ombudsman, respected employment law academics Andrew Stewart and Rosemary Owens considered this dilemma, observing:

    An intelligent and articulate graduate from a wealthy family who opts to do months of unpaid work in order to break into their chosen profession may not seem very vulnerable. They may not seem to be a “victim” of exploitation. But the point of… taking action is not necessarily to protect them as an individual. It is to assert a principle — a fair day’s pay for a fair day’s work — that underpins our system of minimum labour standards.

    While this “moralising” of the issue may not sit comfortably with everyone, Stewart and Owens’ approach has helped inform the Ombudsman’s response to the growing intern economy in Australia. Their decision to prosecute in Crocmedia despite the employer’s cooperation speaks volumes as to the organisation’s determination to pursue the ‘strong public interest in deterring employers from significantly underpaying young workers’ entitlements through unpaid work arrangements’, and recent success will only encourage further litigation.

    Accordingly, employers of all shapes and sizes would be well advised to think carefully before entering into unpaid internships or work experience arrangement. Characterised properly and undertaken in a legally-compliant manner, such arrangements can be mutually beneficial: offering much-needed experience for the individual and giving the employer an opportunity to train and assess a potential future employee. Yet following Crocmedia, the risks attaching to a cavalier approach have significantly increased. Read More.

    By John Wilson, Managing Legal Director, Employment Law.

    First published in Ethos, the ACT Law Society’s journal.

    Read more
  • house construction

    The costs of not playing by a Council’s own rules

    The Land and Environment Court has sent a timely reminder to local Councils about the possible costs consequences of refusing development consent to a development application that is fully compliant with the relevant planning controls.

    In a decision handed down last Friday, the Court has ordered one Council to pay the costs of a successful applicant in a case in which the Council was refusing development consent and defended the ensuing appeal even though the development application complied with all of the relevant provisions of the Council’s local environmental plan and development control plan: Dunford v Gosford City Council (No.3) [2015] NSWLEC 96 (12 June 2015). The successful applicant’s costs had been estimated to be more than $150,000.

    In that case the applicant had sought development consent for the demolition of a dwelling house and the erection of a new replacement dwelling house at Wamberal Beach. The land the subject of the development application was at risk of coastal erosion and the Council refused development consent on two grounds. One was that the construction of the proposed new dwelling did not sufficiently avoid or minimise the potential risk of coastal erosion. The other was that the development was not in the public interest as it would be “impacted by coastal hazard processes, resulting in property damage and loss”.

    In the hearing of the appeal, the Council’s witnesses accepted that the proposed development complied with the technical provisions of the Council’s planning instruments but the Council still argued that were right in refusing development consent. In doing so, the Council sought to depart from the policy contained in its development control plan.

    In handing down the Court’s decision, Sheahan J summarised the applicable principles in the following way:

    • The basic rule in Class 1 proceedings is that the Court will not make any order for costs unless it considers that doing so would be fair and reasonable in the circumstances;
    • The effect of the rule is that ordinarily each party in class 1 proceedings will be liable to pay its own costs;
    • Success alone therefore is insufficient to justify the making of an order for costs;
    • A Council is not always bound to follow previous planning decisions and can act in a way that may appear to be inconsistent, eg when it becomes aware of additional information which means it would be responsible to take a different stance;
    • The principle which underlies the basic rule is that persons should not be discouraged from exercising their rights of appeal (the “no discouragement principle”);
    • A significant purpose of planning appeals is to improve the decision-making process and in this context the no discouragement principle means that an unsuccessful consent authority is more likely to suffer an adverse costs order than an unsuccessful applicant; and
    • Failing to lead the evidence necessary to make out a Council’s case and defending appeals that have poor prospects of success can amount to unreasonable conduct on the part of a consent authority.
    • Applying these principles to the case before him, Sheahan J held that it was neither fair nor reasonable for the Council to argue against its own planning instruments and to adopt instead an arbitrary alternative approach. His Honour observed, “As is seen far too often, the Council left the applicant with no alternative but to bring her complaints to the Court”.

    In the circumstances, the Court ordered the Council to pay the applicant’s costs of the whole proceedings.

    Read more
  • business

    Oppressive Conduct Regime: can unitholders take advantage?

    Oppressive Conduct

    The oppressive conduct regime in the Corporations Act 2001 (Cth) (the Corporations Act) is designed to provide protection and extensive remedies for oppressed minority shareholders. It is one of a number of means to ensure Directors conduct the company’s affairs in good faith and in a manner which is in the interests of all shareholders.

    Sections 232 and 233 of the Corporations Act allow shareholders to seek relief against oppressive conduct in circumstances where the conduct of the company’s affairs is alleged to be:

    1. contrary to the interests of the members as a whole – s232(d); or
    2. oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member – s232(e).

    The Court has broad powers under section 233 to grant relief to oppressed shareholders, including the power to wind up the company, appoint a receiver/manager, grant injunctions and, importantly, providing for the buy-out of shareholders.

    The question considered here is whether “unitholders” of a unit trust can seek the same relief as “shareholders” under those provisions. The law in this respect is uncertain; hence the importance of having a Unitholders Agreement or equivalent right in the unit trust deed. The uncertainty arises because the jurisdictions of NSW and VIC have taken different positions on whether unitholders can seek relief under the oppressive conduct provisions of the Corporations Act, even where there is a corporate trustee.

    The New South Wales Approach

    The NSW approach is that claims of oppression and entitlement to relief under the Corporations Act are limited to the company only, and does not apply to its capacity as a trustee in the course of administering the trust. This is so, notwithstanding that the sole purpose of the company may be to act as trustee. Even where oppression has occurred against a trust beneficiary in a company which holds all its assets on trust, there is no diminution in value of the complainant’s share in the company (the shares in the company being valued at nil or the nominal amount of $1) and therefore no prejudice or unfairness occurs.

    Plainly, the NSW position is that “oppression” against a beneficiary of a trust is a matter to be raised as “a breach of trust” not a Corporations Act cause.

    The Victorian Approach

    Victoria has departed from the NSW approach in that Courts will look at the conduct of the majority unitholders “as a whole” regardless of whether the conduct relates to their position as a shareholder or as a unitholder or both. The Courts have considered the application of section 53 of the Corporations Act in the interpretation of the oppression provisions.

    For conduct to be oppressive it must be in relation to the “conduct of a company’s affairs’. Section 53 provides that “affairs of a body corporate” include:

    1. business, trading, transactions and dealings as trustee; and
    2. where a company is a trustee: matters concerned with beneficiaries, their rights under the trust and any payment they have received or are entitled to receive under the terms of the trust.

    It has been held that section 53 is broad enough to extend to the oppression remedy where the oppression relates to the operation of the trust which has a corporate trustee and potentially extends oppression of a member to include their interests and associated interests as a “unitholder”. Even if that was so, it nevertheless may be that in many cases it is possible to separate the affairs of the company from those of a trust. Whether that can be done depends on the facts.

    The Australian Capital Territory Approach

    Unfortunately the ACT approach is unclear as the issue appears untested. In our view the NSW approach is likely to prevail for reason that a corporate trustee is bound to act in accordance with the Trust Deed and if the Trust Deed does not set out conduct which (if reached) could be unconscionable, then the corporate trustee cannot be engaging in unconscionable or oppressive conduct separately. Our view is that the rights of a beneficiary under a trust are determined according to the terms of the trust and the law of trusts.

    Conclusion

    Whether the laws of oppression reliant on the Corporations Act 2001 apply or don’t apply should be an academic question. The advantage in having a Unitholders Agreement is that if the document is well prepared, there will be clear rights and obligations on each of the parties to identify what conduct is or is not acceptable, reducing or even removing the possibility of claims of oppression and providing unit holders with a clear path out of the unit trust. If a business is designed to be an investment it should also be designed to be realised.

    By Katie Innes, Director, Business Law.

    This article is intended to provide a summary of the subject matter only. It does not purport to be comprehensive or to render legal advice. No one should act on the basis of any matter contained in this article without first obtaining specific professional advice.

    Read more
  • pecuniary interests

    Disclosure of Pecuniary Interests and Environmental Planning Instruments

    Case note: Background

    The making or amendment of an environmental planning instrument will sometimes affect the value of land owned by a councillor, giving rise to a “pecuniary interest” for the purposes of the Local Government Act.

    When this happens, the Act requires the councillor:

    a) to disclose the nature of the interest to any meeting of the council or committee at which the matter is being considered (section 451(1)); and

    b) to not be present at, or in sight of, the meeting at any time during which the matter is being considered or discussed or voted on (section 451(2)).

    These obligations are in addition to the obligations relating to the preparation and submission of written returns of interests under section 449.

    When the making or amendment of an environmental planning instrument will affect the value of land owned by a number of councillors, there is the potential for the council to be unable to obtain a quorum for a council or committee meeting convened to consider the instrument. To deal with this issue, section 451(4) provides that the obligations imposed by section 451(1) and (2) do not apply if:

    a) the environmental planning instrument applies “to the whole or a significant part of the council’s area”; and

    b) the councillor makes a special disclosure prior to the meeting.

    Councillor Petty

    The provisions of section 451(4) came under the spotlight in the recent decision of the NSW Civil and Administrative Tribunal in Office of Local Government v Petty [2015] NSWCATOD 46.

    The issue in that case was whether Cr Petty, a councillor on the Wollongong City Council, had breached the pecuniary interests provisions of the Act.

    The Council held an extraordinary meeting to consider a number of rezoning proposals for land at Helensburgh and Stanwell Tops. Although there were a number of such proposals, each one was listed separately in the Council’s business paper. One of those proposals, item 8 in the business paper, related to a property known as “the Blackwells” which was across the road from Cr Petty’s home. The proposal was to rezone part of the Blackwells property from E2 Environmental Conservation to IN2 Light Industrial. Evidence before the Tribunal indicated that, if approved, the rezoning proposal would have a detrimental impact on Cr Petty’s property and would result in the value of his land decreasing by some $175,000.

    Cr Petty attended the council meeting at which the proposal was considered. At the commencement of the meeting he read from a statement prepared by his solicitors. He acknowledged in the statement that he owned land that would be affected by the proposal and that he may have an appreciable financial gain or loss depending on what decision the Council made. However, he then said that, because the proposal was part of a much larger overall rezoning proposal for a significant part of the Council’s area, he had decided to make a special disclosure and to take part in the meeting.

    The councillor remained in the meeting and argued against the approval of the proposal. He then voted against the proposal.

    Did section 451(4) apply?

    In the Tribunal Cr Petty argued that he was not required to absent himself from the Council meeting because the matter being considered fell within the exception contained in section 451(4). He argued that the whole of the business before the Council that night related to zoning proposals for a significant part of the Council’s area.

    However, the Tribunal found that the specific agenda item relating to the Blackwells related to an area of land that made up only 2.33% of the Council’s area and that this was not a “significant” part of the Council’s area for the purposes of section 451(4). It was this agenda item and not the whole of the business before the Council meeting, that gave rise to the councillor’s pecuniary interest.

    Reliance on legal advice

    Cr Petty also argued that he had obtained legal advice from a solicitor who was an accredited specialist in local government and planning law and relied on that advice in dealing with his pecuniary interest in the way he did. That advice was to the effect that, when all of the various rezoning proposals were taken together, they did affect a significant part of the Council’s area and this was sufficient to bring the circumstances with section 451(4).

    The Tribunal disagreed with the councillor’s legal advice, noting that the rezoning proposal in which Cr Petty had a pecuniary interest was a separate agenda item, requiring separate consideration and to be voted upon separately. It did not come within section 451(4) because the specific proposal did not relate to the whole or a significant part of the Council’s area: it related only to the zoning of the Blackwells.

    The Tribunal also found that the fact that the councillor had obtained and relied on legal advice was not an answer to the complaint against him. The Tribunal said that Cr Petty was not bound by the legal advice he obtained and it was a matter for him whether he relied upon it. The Tribunal concluded that regardless of the legal advice it was open to the councillor to give careful consideration to whether the specific proposal relating to the Blackwells was a “proposal relating to the whole or a significant part of the Council’s area” and, if there was some doubt about that, whether it would be prudent or more ethical for him to refrain from participating in the consideration of that item. The councillor was criticised by the Tribunal for adopting the legal advice as “an unqualified shield”.

    Special disclosure – formal requirements

    Another issue relied on by the Tribunal was the technical point that the special disclosure had not been signed. Section 451(4) provides that a special disclosure must be in the form prescribed by, and must contain the information required by, the regulations. Regulation 195A of the Local Government (General) Regulation 2005 requires a special disclosure to be in the form set out in schedule 3A and to contain the information required by that form. The prescribed form requires, as part of that information, the signature of the councillor. The Tribunal also noted that the councillor’s legal advice also pointed out that the special disclosure needed to be signed to become effective. So even if the rezoning proposal had applied to the whole or a significant part of the Council’s area, Cr Petty would still not have been entitled to the protection of section 451(4) because he had not made the special disclosure required by that provision.

    The Tribunal’s orders

    In the circumstances the Tribunal ordered that Cr Petty be reprimanded and suspended and that his right to be paid any fee or remuneration also be suspended for a period of 3 months.

    The Lessons Learned

    1. Section 451(4) provides an exception to the usual obligations in relation to pecuniary interests only where the environmental planning instrument applies to the whole or a significant part of the Council’s area.
    2. If a councillor has a pecuniary interest in a specific agenda item concerning a rezoning proposal that does not relate to the whole or a significant part of the Council’s area, section 451(4) will still not apply even if the proposal is one of many included in the same business paper which, if taken together, would relate to a significant part of the Council’s area.
    3. Reliance on legal advice will not provide a complete shield to a complaint that a councillor has breached his or her obligations in relation to dealing with pecuniary interests – the exercise of reasonable care and diligence by the councillor is still required.
    4. For a special disclosure to be legally effective it is important to ensure that it contains all of the information required by the prescribed form – including the councillor’s signature.
    Read more
  • contract

    Fee for service or contract?

    In a decision handed down on Monday of this week, the Court of Appeal has found that councils must comply with the public notice requirements for the setting of fees for service in the Local Government Act even when the fees are paid pursuant to a contract and have been arrived at following commercial negotiation between the council and the other party to the contract.

    Background

    The Local Government Act 1993 contains elaborate provisions regulating the financial management and accountability of local councils. Chapter 13, “How are councils made accountable for their actions”, requires the preparation of a delivery program and draft operational plan (including a statement of the council’s revenue policy for the year) and imposes an obligation on councils to exhibit and receive and consider submissions before a final operational plan is adopted.

    A council’s revenue comes from a number of sources. One of those sources is the charging of fees for services.

    The Local Government Act differentiates between fees for business activities and fees for non-business activities.

    The fees for services provided in relation to any of a council’s business activities must be charged in accordance with a pricing methodology adopted by the council in its operational plan prepared under Part 2 of Chapter 13 or in accordance with a resolution passed at an open meeting of the Council: section 610B.

    The fees for any non-business activity must be set by the council after considering the factors set out in section 610D. These include:

    • The cost to the council of providing the service;
    • The price suggested for the service by any relevant industry body or in any schedule of charges published by the Department;
    • The importance of the service to the community; and
    • Any factors set out in the Regulations.

    The transparency of the fee setting process is ensured by the requirements of section 610F. That section requires that a council must not determine the amount of a fee until it has given public notice of the fee in accordance with that section and until it has considered any submissions duly made to it during the period of public notice. The section also requires that public notice of the amount of a proposed fee must be given in the draft operational plan for the year in which the fee is to be made.

    The Court of Appeal

    In a decision handed down on Monday 11 May 2015, the New South Wales Court of Appeal has held that the restrictions imposed on a council in charging a fee for a non-business related service apply to the grant of a licence for the use of council land, even where the fee has been arrived at by negotiation between the council and the licensee.

    Facts

    In Adrenaline Pty Ltd v Bathurst Regional Council [2015] NSWCA 123 the council had entered into a five year agreement with Adrenaline under which Adrenaline agreed to pay the council an annual fee in the order of $250,000 for the use of the Mt Panorama motor racing circuit for 5 days each December. When negotiations for the renewal of the agreement collapsed, Adrenaline brought proceedings seeking to recover the fees it had paid over the five year term, arguing that it had paid the amounts in the mistaken belief that the Council had been authorised to enter into the agreement.

    The council accepted that if the requirement to give public notice of a proposed fee for service in section 610F of the Act applied to the fees set by the agreement, public notice of the fees had not been given. The council argued, however, that it had a general power to enter into a contract in connection with the exercise of its functions and that this general power was not constrained by the public notice requirements contained in the Local Government Act.

    The Decision

    The Court of Appeal rejected the council’s argument.

    Leeming JA (with whom MacFarlan and Ward JJA agreed) held that the council was still required to comply with the public notice requirements of the Local Government Act in setting the fee payable under the agreement even though the fee had been the subject of commercial negotiations between the council and Adrenaline. He cited a number of reasons for coming to this conclusion:

    1. The structure of the Local Government Act as a whole, the importance placed on public exhibition and consultation and the similar treatment of rates and charges, on the one hand, and fees for services on the other, tended against the council’s argument.
    2. It is a basic principle of statutory construction that, where a statute confers a power subject to qualifications and conditions, general provisions in the statute are read as being subject to those qualifications and conditions. In this case this meant that the council could not avoid the obligation imposed by section 610F to give public notice of a fee for a service by relying on its general power to enter into contracts.
    3. The council’s power to enter into contracts, conferred by section 24 of the Local Government Act, is expressed to be “subject to this Act”. This made it clear that the power was subject to the obligation to give public notice of the fee to be charged for any service to be provided by the council pursuant to the contract.
    4. The fact that the fee was negotiated did not take it outside the ambit of the statutory scheme which regulated the charging of fees for services.
    5. A licence to use real property is the provision of a service and any fee payable for the grant of the licence (and associated services) can only be imposed after complying with the public notice requirement contained in section 610F.

    The Court therefore found that the council had entered into the contract in breach of its obligations in relation to the charging of a fee for a service contained in section 610F of the Act.

    Fortunately for the Council, however, the Court stopped short of ordering it to refund the licence fees it had been paid under the contract. This was for two reasons.

    One was that the Court held that the fees were an “impost” for the purposes of the Recovery of Imposts Act 1963 so that the fees could only be recovered in an action brought within a period of 12 months from the date of payment. In this case the proceedings had been commenced after that period had already expired.

    The second was that the Court found that Adrenaline had in fact received good consideration for the fees it had paid and, in fact, had received precisely what it had bargained for: the use of the racetrack for a 5 day period for each of the five years of the contract’s duration. The Court held that this precluded Adrenaline from recovering the amounts it had paid, even though they had been imposed contrary to the provisions of the Local Government Act.

    The take home message

    The Court’s decision means that councils will need to review contracts they have entered into that involve the provision of a service (including licences for the use of council land) to ensure that the fees payable have been imposed in accordance with the public notice requirement of the Local Government Act. In this regard it does not matter that the fees may have been arrived at by negotiation with the other party – public notice of the fee is still required.

    By Alan Bradbury, Legal Director, Environment and Planning.

    Read more
  • homestead environment and planning

    Planning Law Update: Heritage hit

    The Court is demonstrating its willingness to crack down on planning offences. In the recent decision Cowra Shire Council v Fuller [2015] NSWLEC 13, in which Bradley Allen Love Lawyers acted for Cowra Shire Council, the Court imposed a penalty of $175,000 on the Defendant for carrying out unlawful development and demolition of a heritage homestead. This is understood to be the highest penalty given to an individual for the offence of carrying out development without consent.

    The offence involved the deliberate and wilful demolition of Shiel Homestead, a building with heritage value, in the Cowra Local Government Area. The homestead was demolished on the Easter weekend in 2012, immediately prior to the Council considering a proposal to include the homestead as a heritage item in its local environmental plan. In considering what an appropriate penalty would be, the Court noted the importance of maintaining the integrity of the planning system and that the failure to obtain development consent potentially undermines that system. The deliberate and wilful demolition of the building, and the irreversible nature of the offence, led the Court to describe the offence as objectively serious and deserving of a $250,000 penalty, which was then reduced by 30% to $175,000 due to mitigating factors, including an early plea of guilty. The Court also ordered the Defendant to pay the costs incurred by the Council in the proceedings.

    While prosecuting someone for carrying out unlawful development can seem daunting, a successful prosecution can have a substantial deterrent effect and sends an important message to the broader community that the law is being fairly and consistently applied. The incoming changes to the EPA Act support local councils in undertaking strategic prosecutions as part of the tools available to councils to achieve the orderly and economic use and development of land.

    Read more
  • awards

    Planning Law Update: Painful penalty!

    The NSW Parliament has recently passed amendments to the Environmental Planning and Assessment Act 1979 (EPA Act)to substantially increase the maximum penalty that can be imposed by the Court when a person commits an offence under the EPA Act. These new provisions have not yet taken effect – they will commence on a day to be appointed by proclamation – but it is only a matter of time.

    The Amendment will see the Court switch from its “one size fits all” approach of having one maximum fine for all offences to a tiered offence system similar to that used for offences against the Protection of the Environment Operations Act 1997. Like that Act, three new classes of offences have been created, being:

    Tier One Offences

    Tier one offences are the most serious category of offences. An offence is be a Tier One offence if it is deliberate and causes, or is likely to cause, significant harm to the environment or caused the death of, or serious injury or illness to, a person. The maximum penalty for a tier one offence is $5 million for corporations and $1 million for individuals.

    Tier Two Offences

    Tier two offences are those offences that do not fall within Tier One or Tier Three. The maximum penalty that can be imposed for a Tier Two offence is $2 million for corporations and $500,000 for individuals.

    Tier Three Offences

    These are the least serious offences and include “certificate-related offences”. A certificate related offence is defined in the EPA Act and is an offence which arises in relation to the issue of a construction, compliance, subdivision or occupation certificate (including the procedures for, and restrictions on, issuing such certificates and the notification requirements of a principal certifying authority). An example of a certificate related offence would be where an occupation certificate is issued and the preconditions to the issue of the certificate that are specified in the development consent, complying development certificate or planning agreement have not been met (s190H EPA Act).The maximum penalty that can be imposed for a Tier Three offence is $1 million for corporations and $250,000 for individuals.

    The three tier structure will assist councils to assess the seriousness of an offence upfront and enable strategic decisions to be made about which matters to prosecute.

    The Amendment also creates new offences under the EPA Act, including the offence of providing false or misleading information in connection with planning matters. Significantly, the new offence will apply to applicants for an approval, development or certificate and consultants that provide information as part of a development or certificate application, including statements of environmental effects. These changes reflect the important role that consultants play in providing professional and objective information that can be relied on by a consent authority when assessing an application.

    Read more
  • open

    Open Justice and Closed Courts: From Fairfax to Fair Work

    Open justice lies at the heart of the Australian court system. The principle has been variously described as ‘immutable’, an ‘essential aspect’ of judicial character and ‘the best security for the pure, impartial and efficient administration of justice’.

    Unsurprisingly, the concept has a variety of meanings. At base, it requires that court proceedings and associated documents be physically accessible to the general public. Yet perhaps more importantly, especially as most people rarely, if ever, are inclined to attend court as spectators, open justice entails media access to courtroom hearings so that such reporting can be disseminated to a larger audience.

    This principle is not, however, absolute. As with many fundamental legal principles, open justice is often at tension with well-meaning exceptions. Just as the administration of justice normally requires litigation to occur in the open, so may it occasionally necessitate closed hearings in cases of confidential information, child-related matters and where issues of national security arise. While these exceptions are ‘strictly defined’, common law and statute make allowances for private proceedings or the issuance of various orders to a similar effect.

    For example, s 37AG of the Federal Court of Australia Act 1976 (Cth) provides several grounds for the Court to make non-publication or suppression orders. While it ‘must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice’, orders can be made when necessary, among other things, to prevent prejudice to the administration of justice, to protect national security related government interests and to protect the safety of any person. Similar powers exist at common law, and the legislation expressly does not affect those powers.

    Although the Federal Court Act provides little guidance as to determining between these various competing principles, case law offers ‘necessity’ as a tool. This test prescribes that a departure from open justice will only be permitted if it is ‘really necessary to secure the proper administration of justice’. In Hogan v Australian Crime Commission, a decision dealing with the previous incarnation of the Federal Court’s suppression powers, the High Court added that it must be more than ‘convenient, reasonable or sensible, or to serve some notion of the public interest’. As the Victorian bench book bluntly puts it, ‘necessity is a high threshold’. Read more.

    By John Wilson, Managing Legal Director, Employment Law.

    First published in Ethos, the ACT Law Society’s journal.

    Read more
  • piggy bank - mutual trust

    Moves like Jagger: The High Court on Mutual Trust and Confidence

    The law governing employment contracts has become significantly more black and white in recent months, following the High Court’s pronouncement in Commonwealth Bank of Australia v Barker that the implied term of mutual trust and confidence is, under the common law of Australia, dead

    In doing so, the Court conclusively settled “one of the most contentious questions in Australian employment law,” and provided relief for nervous employers already concerned about their employment-related liability following Richardson v Oracle Corporation of Australia. Yet the Court’s reluctance to consider the associated implied term of good faith leaves another area of uncertainty awaiting further litigation.

    Barker arose following the Commonwealth Bank’s decision in 2009 to make a senior and long-serving employee redundant as the result of restructuring. While the Bank attempted to find redeployment opportunities for Mr Barker, he had been stripped of access to his work email and so the Bank’s messages about such attempts did not reach him until just prior to the date of termination.

    Before Besanko J of the Federal Court, Mr Barker claimed that the Bank “had failed to conduct the termination or redundancy process in a bona fide and/or proper manner.” This failure, he claimed, amounted to a breach of two of the Bank’s policies — its redundancy policy and its equal employment opportunity policy. Mr Barker founded his claim in contract on three alternative propositions — the policies were expressly incorporated into his employment contract; the policies were incorporated by practice and usage into his employment contract; or ‘his contract of employment included an implied term of mutual trust and confidence and that a serious breach of the policies was a breach of that implied term.’

    Besanko J was not persuaded by the first two propositions, particularly as the Bank’s employment manual bluntly stated that it was “not in any way incorporated as part of any industrial award or agreement entered into by the Bank, nor does it form any part of an employee’s contract of employment.” However, after considering English cases and judicial recognition of the term in Australia, Besanko J found that “there is an implied term of mutual trust and confidence in the contract of employment between Mr Barker and the Bank.” Read More.

    By John Wilson, Managing Legal Director, Employment Law

    First published in Ethos, the ACT Law Society’s journal.

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  • workplace health and safety policy

    Protect Your Business: Employment Policy Packages

    Bradley Allen Love Lawyers can help protect you and your company by providing a range of policies and policy packages drafted by our team of employment law experts and customised to suit the individual workplace.

    Drafting workplace policies can be challenging. They need to comply with a diverse range of legislation, should be directive to employees yet not contractually binding on employers, and may have to withstand judicial scrutiny if relied upon in a workplace dispute.

    The cost of poorly worded policies has increased significantly following recent court decisions. In Richardson v Oracle, the employer was found vicariously liable for an employee’s sexual harassment of a colleague. The judge held that Oracle’s policies were not sufficient to provide a ‘reasonable steps’ defence, and awarded damages of $130,000. In another case, an employee subjected to persistent sexual harassment from her manager received $733,723 in compensation.

    To assist organisations protect themselves from these risks, Bradley Allen Love has drafted customisable policies aimed at fulfilling legal requirements and explaining the obligations of employers and employees.

    Bullying, Harassment & Discrimination Policy ($750 inc GST)

    Designed to be compliant with a range of legislation,this policy forms an essential part of a prospective ‘reasonable steps’ defence against vicarious liability for sexual harassment. It explains the legal responsibilities of employees, and outlines what constitutes bullying, sexual harassment and unlawful discrimination. It also includes clauses on complaints procedures, privacy and disciplinary sanctions.

    Work Health and Safety Policy ($750 inc GST)

    Drafted to meet obligations arising under the Work Health and Safety Act 2011 and Workers Compensation Act 1951, this policy aims to foster a safe workplace and provide protection from liability when incidents occur. It describes the relevant responsibilities, includes work safety concern and inspection templates, and highlights the duty to notify of incidents obligation. It also provides for the creation of a workplace health and safety committee – the most practical way to satisfy the consultation requirement.

    Complete Workplace Policies Suite ($2,000 inc GST)

    Bradley Allen Love Lawyers can provide an extensive suite of legislatively compliant policies. Aimed at protecting your organisation from a range of potential workplace issues, the suite includes:

    • Bullying, Harassment & Discrimination Policy;
    • Work Health & Safety Policy;
    • Social Media Policy;
    • Information Technology & Confidentiality Policy;
    • Underperformance & Misconduct Policy; and
    • Grievance Resolution Policy.

    To talk about the policies that will best suit your business, or to order a package, please call us on 02 6274 0842.

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  • will and estate planning

    Where There’s a Will, There’s Now a Way

    The ACT recently brought itself into line with most other Australian jurisdictions when the Legislative Assembly enacted legislation giving certain people the right to access a copy of a deceased’s will. As of 17 November 2014, section 126 was inserted into the Administration and Probate Act 1929. It gives an ‘interested person’ the right to inspect, or be provided with, copies of a will, even if the holder only has a copy of the will themselves. A will is defined to include a revoked will, an informal will, or a codicil to any will. The inclusive definition means that the Act does not limit the documents which may be accessed.

    Before this law was passed, there was little recourse available to force someone to provide a copy of the will of a deceased person. As a result, in some circumstances it was difficult to hold an executor to account or know whether to challenge the will.

    There is a range of reasons why a person might need to look at a will or former will of a deceased person. In a claim for family provision, for instance, one of the factors considered by the court is the testamentary intentions of the deceased person. Examining a former will is one way to shed light on these intentions. It may also be necessary to confirm whether or not the deceased had testamentary capacity at the time they gave instructions for their will. Further, former wills may be evidence of the authenticity of the testator’s signature on their last will.

    In practice, firms could previously ask the Supreme Court to permit access to the will once the executor applied for probate. However, this only helped where the executor needs to apply for probate (which is not always necessary) and the costs of accessing the will in this manner were significant.

    Under the amended legislation, an ‘interested person’ is defined with reference to nine broad categories and includes:

    1. the spouse, partner, parent, or child of the deceased;
    2. a person who would be entitled to a portion of the estate if it were distributed according to the laws of intestacy;
    3. a person named or referred to in that will;
    4. a beneficiary in that will or in an earlier will; and
    5. an attorney or the guardian or financial manager of the deceased person.

    A person does not necessarily need to be specifically identified in a will. A person will have the right to request a copy of a will if he or she meets the description of a class of people in the will such as ‘brothers and sisters’.

    The only formalities contained the new legislation are that the interested person must make the request in writing, and, to the extent that there are any costs associated with furnishing or copying the will, the interested person must personally bear those costs.

    The Act places a positive obligation on any person with ‘possession or control’ of a will to grant access to an interested person. The executor, law firms, and other institutions that employ safe custody procedures cannot refuse access to a copy of a will or former will if the person making the request is an interested person.

    So, provided a person can demonstrate that they fall into one of the categories of an ‘interested person’, a request made pursuant to section 126 creates an unqualified obligation to provide copies or access. No additional documentation is required, and access is not dependent on obtaining the consent of any client, or executor or administrator of an estate.

    This change to the Act is a positive development. The legal right to access a will is a measure which is designed to save time and, consequently, lower costs. It should simplify the process of estate administration and limit associated potential litigation.

    If you would like more information, Bradley Allen Love can provide you with advice on your responsibilities as an executor and your rights as a beneficiary.

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  • commercial building - intellectual property law

    Employment Law: High Court retreats from the Rubicon

    The High Court has delivered their landmark judgment in Commonwealth Bank of Australia v Barker, definitively rejecting the implication of a mutual trust and confidence term in Australian employment contracts.

    In a judgment that will relieve employers and that clarifies a previously unsettled area of law, the Court broke from British legal developments in a decision cautious about the possibility of encroaching on legislative territory.

    Mr Barker, a senior and long-serving employee of the Commonwealth Bank, was made redundant in 2009 as the result of restructuring. Although the Bank made attempts to offer Mr Barker redeployment opportunities, he had been stripped of access to his work email and consequently these messages did not reach him until just before the date of termination.

    At first instance, Mr Barker alleged, amongst other things, that the Bank ‘had failed to conduct the termination or redundancy process in a bona fide and/or proper manner’, which represented a breach of both the redundancy policy and equal employment opportunity policy. While these policies expressly stated that they did not form part of the employment contract, Mr Barker alleged his contract contained an implied term of mutual trust and confidence, and the Bank’s actions had breached this term.

    Drawing on extensive British jurisprudence, both Besanko J of the Federal Court and Jacobson and Lander JJ of the Full Federal Court agreed with Mr Barker. They noted the implied term was necessary to ‘prevent the enjoyment of rights conferred by contract being rendered nugatory, worthless, or seriously undermined’, before quoting another case to the effect that its development ‘can be seen as consistent with the contemporary view of the employment relationship as involving elements of common interest and partnership, rather than of conflict and subordination.’ Mr Barker was awarded damages in the sum of $317,500.

    These decisions represented a significant shift in Australian workplace law, potentially finding an implied term of mutual trust and confidence in every employment contract across the country. However, relying on Jessup J’s strong dissenting judgment, the Bank appealed to the High Court.

    Across three concurring judgments, the Court upheld the appeal. Having quoted Brennan J’s statement that ‘there must be constraints on the exercise of the power, else the courts would cross “the Rubicon that divides the judicial and the legislative powers”’, the Court found that such an implied term was ‘a matter more appropriate for the legislature than for the courts to determine’.

    Mixing historical metaphors, and having witnessed the Full Federal Court march on Rome, the High Court felt compelled to beat a hasty retreat across the Rubicon lest the implied term ‘act as a Trojan horse’ in employment contracts across Australia.

    The take-home message for employers, already apprehensive after the recent Richardson decision, is that they can breathe easy – for now. The Court’s principle-based as opposed to factually-driven rationale in Barker was such that distinguishing the judgment in a later case would prove difficult and thus, barring (unlikely) legislative intervention, the implied term of mutual trust and confidence appears to be no more.

    However, the Court left open the possible existence of an implied term of good faith in employment contracts, refusing to be drawn into a consideration of the merits of such an argument. Until another matter brings that question squarely before the Court, it seems the familiar “mutual trust and confidence” pleading will simply be replaced by that of the equally vague “good faith”.

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  • discrimination

    Damages for Sexual Harassment: A New Era?

    Winds of change are sweeping through the sexual harassment landscape, with significant implications for employers and employees alike.

    In July, the Full Court of the Federal Court delivered judgment in Richardson v Oracle Corporation Australia Pty Ltd, awarding damages of $130,000 (including $100,000 for general damages alone) to a former employee of Oracle who had suffered sexual harassment in the workplace.

    Ms Richardson was based in Sydney, but in 2008 was frequently required to work on a project in Melbourne. During their first face-to-face meeting, an employee of the Melbourne office, Mr Tucker, commented in front of other colleagues: ‘Gosh, Rebecca, you and I fight so much … I think we must have been married in our last life’. This remark was followed several days later by: ‘So, Rebecca, how do you think our marriage was? I bet the sex was hot.’

    Over the following months, Ms Richardson ‘was subjected to a humiliating series of slurs, alternating with sexual advances, from Mr Tucker which built into a more or less constant barrage of sexual harassment.’ After initially attempting to defuse the harassment herself, Ms Richardson made a formal complaint to the Human Resources Department, yet was still required to maintain contact with Mr Tucker. Eventually, Ms Richardson resigned and brought a number of claims against Oracle in the Federal Court, including for sexual harassment, indirect discrimination, victimisation and breach of contract.

    Section 106(1) of the Sex Discrimination Act 1984 (Cth) provides for the vicarious liability of an employer where an employee or agent, ‘in connection with the employment of the employee or with the duties of the agent as an agent’, commits an action that would be considered sexual harassment by the Act. Accordingly, where sexual harassment occurs in the workplace, the affected employee will have a strong prima facie case against the employer.

    However, s 106(2) allows the reasonable steps defence — that is to say, an employer will not be vicariously liable ‘if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind’ discussed above.

    Unhappy with the amount of compensation, Ms Richardson appealed to the Full Court of the Federal Court. The Court’s recent acceptance of her appeal, and grant of significantly increased general damages, has sent shockwaves through the employment law field, greatly heightening the financial risks to employers and making litigation a more viable option for sexually harassed employees. Read More.

    First published in Ethos, the ACT Law Society’s journal.

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  • estate administration

    An Executor’s Guide to Estate Administration

    At Bradley Allen Love we understand that being the Executor or Administrator of an estate, particularly of a recently deceased loved one, can be both stressful and challenging. To simplify the process as much as possible we’ve developed the following guide, which explains the key terms and outlines several steps that the Executor or Administrator should follow.

    Role of the Executor and Administrator

    An “Executor” is a person appointed by a will to manage the deceased’s estate and carry out their wishes as set out in the will.

    If the deceased left no will, an invalid will, or an incomplete will, an “Administrator” is appointed by the Court to manage the deceased’s estate and distribute according to law.

    Although a willmaker can choose whomever they want to be the executor, it is standard practice to appoint someone who is going to be a major beneficiary under the will. If, on the other hand, the Court appoints an administrator, they have complete discretion in selecting their appointee.

    Being the Executor or Administrator is a position of trust and responsibility, and comes with duties and obligations that can be quite time-consuming. The Executor or Administrator is entitled to seek legal advice in the course of carrying out their duties, with such advice paid for by the estate. Accordingly, you should not be personally out-of-pocket as a result of being the Executor or Administrator. If you have any concerns about your rights and obligations as an Executor or Administrator, please seek legal advice.

    What to do before receiving the Death Certificate

    A Death Certificate is typically issued approximately two weeks after the funeral and will be posted to the person who completed the death notification for the funeral director. This period of time can be particularly frustrating for many executors and the family, because little progress can be made while waiting for the Death Certificate. However, the executor or proposed administrator can take some preliminary steps, such as:

    1. satisfying themselves that the will is the last will and then locate and hold on to it;
    2. creating an inventory of assets, paying particular attention to those assets that are solely owned (Estate Assets) and jointly owned (Non-Estate Assets);
    3. gathering together contemporaneous documents related to assets (e.g. holder/dividend statements for shares, recent superannuation statements, and recent bank statements); and
    4. gathering together the contact details for beneficiaries and immediate family members.

    You should also consider obtaining legal advice during this time.

    How long is this all going to take?

    Completing the estate administration is likely to take until the end of the current financial year, though can take until the end of the next financial year in some circumstances. This is because the executor or administrator is obliged to file the deceased’s last tax return covering the period from that financial year until date of death and, possibly, an estate tax return from date of death to the end of the financial year as well.

    You can expect to complete the estate administration, with prompt professional advice and assistance, within six to twelve months.

    It is entirely possible for it to take longer, but this is usually the result of litigation, delays on the part of banks or other financial institutions, or difficulty selling a property.

    Is there anything else I need to know?

    There are a few key terms that you may not understand. An explanatory document with definitions of such terms can be found here.

    You should also be aware that no estate is the same. Applying for Grants of Probate or Letters of Administration, properly attending to the estate administration and dealing with the tax issues that flow from it, dealing with estate litigation, and dealing with the beneficiaries is a difficult and time-consuming task.

    Our point is that you should not take these things lightly, nor should you rely on advice from anyone other than specialist estate lawyers. Our team of expert estate lawyers are able to answer all your estate inquiries.

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  • sexual harassment

    New Sexual Harassment Compensation Standard Should Make Employers Wary

    A recent decision by the full bench of the Federal Court has significant ramifications for employers, who could find themselves liable for substantial damages in sexual harassment cases.

    Under the Sex Discrimination Act 1984 (Cth), an employer may be found vicariously liable for sexual harassment occasioned by an employee if it occurs in the workplace or in connection with their employment. On the other hand, an employer can defend such a claim by demonstrating they took ‘reasonable steps’ to prevent the harassment, and, until recently, even if found liable were unlikely to face substantial damages.

    However, both the first instance judgment and the appeal in Richardson v Oracle Corporation Australia provide important insight into these issues, and should caution employers about the potential pecuniary dangers of failing to prevent sexual harassment in the workplace.

    In Richardson, an employee of software firm Oracle suffered numerous incidents of sexual harassment at the hands of a colleague. Ms Richardson attempted to handle the harassment by herself, before eventually making a formal complaint to the human resources department. The accused employee was given a ‘first and final’ warning, and subsequently Ms Richardson resigned.

    In the initial decision, Buchanan J held Oracle vicariously liable for the sexual harassment because their code prohibiting sexual harassment and associated compulsory online training contained ‘serious inadequacies’. The Justice highlighted that ‘the test is a difficult one to satisfy’, which he inferred was an intention of the legislature, before concluding that Oracle had not ‘taken all reasonable steps to prevent sexual harassment.’

    Buchanan J’s decision emphasises that employers must have sexual harassment policies that clearly prohibit harassment and explain its illegality, and should consider running regular face-to-face training sessions, if they are to rely on a ‘reasonable steps’ defence.

    Despite Oracle being found liable in the first instance judgment and ordered to pay $18,000 in compensation, Ms Richardson appealed this assessment of damages. In a landmark recent decision, the Full Court expanded damages to $130,000, including $100,000 for non-economic loss.

    In her individual judgment, Kenny J suggested the low range traditionally awarded for general damages in sexual discrimination and harassment cases risked ‘creating a time capsule’, which failed to recognise that ‘community standards now accord a higher value to compensation for pain and suffering and loss of enjoyment of life than before.’

    Accordingly, Kenny J (with whom Besanko and Perram JJ largely agreed) held that Ms Richardson was entitled to significantly higher damages for the hurt, humiliation, mental distress and loss of enjoyment she had suffered. This was despite, in contrast to cases with similarly substantial awards of compensation, a lack of physical harm or (for the most part) serious diagnosed mental injury.

    The take home message for employers is to be vigilant in attempting to prevent sexual harassment and other forms of unlawful discrimination in the workplace, lest they be found vicariously liable for such behaviour and ordered to pay significant damages. Having a clear and detailed sexual harassment policy, mandating comprehensive training, and swiftly responding to any alleged incidents are all steps that may provide a defence to vicarious liability for sexual harassment.

    Bob Dylan once sang that ‘the times they are a-changin’, and it seems his 1964 sentiments have finally caught up to Australian discrimination law.

    By John Wilson, Managing Legal Director, Employment Law.

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  • tax

    Changes to ACT Payroll Tax Exemptions: Who Will Bear the Cost?

    On 5 June 2014 the ACT Government introduced the Payroll Tax Amendment Bill 2014 that will remove the ‘genuine employer’ payroll tax exemption on wages paid to subcontractors by employment agents and payroll agencies (collectively ‘agencies’). The bill was originally slated to commence on 1 July 2014, however the Commissioner for ACT Revenue acknowledged this date would have been challenging for the industry and the commencement date has been delayed until 1 October 2014.

    The genuine employer exemption is currently relied on by a majority of local employment agencies, payroll companies and subcontractors (ICT contractors in particular). Its removal effectively imposes a new tax on an industry locally evolved to meet the Commonwealth’s ad hoc labour needs. Someone in the employment agent/subcontractor chain will end up wearing that 6.85% cost.

    That 6.85% cost may well represent a considerable part of an agency’s revenue, threatening its very viability. Without provisions to increase the contracted ‘spend’, this cost will represent a significant loss of income for a subcontractor or risk the agency’s business. Who will bear that cost will depend upon the contractual arrangements in place.

    Contracts that have not yet been executed should address the payroll tax cost from 1 October 2014; if agencies are to avoid this imposition, they need the indemnities to be clear. Where contracts had already been negotiated and executed, the question of who will bear the payroll tax cost will turn on the specific terms of those contracts.

    Well drafted contracts should have anticipated the possible removal of the exemption and should clearly set out how any increase in tax liability will be assigned.  Poorly drafted contracts may be unclear and those uncertainties may result in parties attempting to pass on costs that they are not entitled to pass on, parties refusing liability for costs that they are liable to bear, breaches or terminations of contracts that are no longer profitable and possible insolvencies within the industry.

    This issue is further complicated by the $1.85m tax free threshold for payroll tax.  Employment agencies do not have to pay the tax on their first $1.85m of payroll in the ACT.  If agencies simply withhold a flat 6.85% from all contractors’ wages in order to meet the payroll tax obligations, what happens to that first $126,725.00 they withhold but do not have to pay in tax?  Some agencies may pocket the money; others may hold the money on trust for the subcontractors and return it at the end of the financial year on a pro-rata basis.

    If you are involved in the industry then it is imperative that you review your contracts to ensure your position is protected.

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  • record - privacy

    Pitfalls of Secretly Recording Workplace Conversations

    “Just between you and me…”

    Should a client secretly record conversations at work?

    A covert recording of a conversation occurring in the workplace could be an evidentiary trump card, in a contest of otherwise differing recollections and inconclusive evidence. However, admissibility of such evidence is subject to s 138 of the Evidence Act 1995 (Cth), which operates to exclude evidence that is improperly or illegally obtained, unless in its discretion the court considers that the illegality is outweighed by the desirability of admitting it.

    Accordingly, if a party to workplace litigation seeks to use such a recording, attention must be had to whether its creation involved any breach of legislation. If there has been a breach, then the evidence could be excluded upon successful objection.

    Even if the recording is successfully admitted as evidence there may be other risks. First, the potential benefit of a recording as evidence should be weighed against the risk that a recording may tend to discredit the party — because of deception innate to a covert recording. Secondly, depending on what might transpire in the recorded conversation, it might turn out to evidence misconduct on their part. Thirdly, the making of a covert recording in the workplace (whether by the employer or the employee) might be conduct held to be in breach of the implied term of mutual trust and confidence in the contract of employment.

    If a lawyer is consulted by a client who is in the midst of an ongoing workplace dispute, they may be asked whether creating evidence through a covert recording would be a good idea. The answer is most often going to be “no”, because of various risks, including that the client may commit a criminal offence, the discretionary exclusion of evidence, and that the evidence may harm the client’s case.

    Another reason why creating a covert recording may be unwise is that it would bring into existence a “document”, within the meaning of that expression in most rules of court (whether Commonwealth, State or Territory). Once a document relating to litigated events exists, then the document will normally be discoverable in the litigation. This means that if it is in the client’s custody or control, then it must be listed and made available to the other side — regardless of whether its contents help or harm your client’s case. If the recording has turned out to be unhelpful, and the client has destroyed it, rules of discovery may still require them to list the document as having once existed, and to state — by affidavit — when the client parted with it and what became of it. Read more.

    By John Wilson, Legal Director, Employment Law

    First published in Ethos, the ACT Law Society’s journal.

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  • canberra house

    A Time to Celebrate - Canberra House

    This month, Bradley Allen Love Lawyers has much to celebrate with staff and clients. The firm has completed renovations of its premises, which now includes the 8th and 9th floors of the iconic Canberra House at the heart of Canberra’s legal and financial precinct. The firm also celebrates the promotion of seven of its lawyers as they take on new responsibilities.

    “Bradley Allen Love Lawyers has gone from strength to strength since the merger of well-known firms Williams Love & Nicol Lawyers and Bradley Allen Lawyers in September 2012,” Managing Legal Director, John Wilson said.

    Bradley Allen Love Lawyers – A Time to Celebrate “To support the firm’s continued success and growth in operations, we’re pleased to be able to accommodate our eighty staff within one location in the city with some great new facilities for our clients,” he said.

    Bradley Allen Love Lawyers’ stylish renovations at 40 Marcus Clarke Street include client seminar room facilities, additional conference rooms, a large project area and a staff breakout area.

    “It’s important to acknowledge and celebrate success and we look forward to doing this with our staff, clients and community partners at the renovation opening,” he said.

    “The Directors are very proud of the team at Bradley Allen Love Lawyers and that it continues to be a city firm in the heart of Canberra.”

    This year’s promotion of seven of the firm’s lawyers is recognition of their hard work and determination to establish their reputations in their chosen field, and acknowledgement of their commitment to client service excellence.

    “As a local firm, we invest in our staff and provide them with a rewarding career path so they are proud ambassadors for our firm and an integral part of the Canberra community, whether for work or in their social lives,” John said.

    “The Directors congratulate each of the team members on their promotion.”

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  • statutory demand

    Statutory Demands: A Risky Business

    A statutory demand notice is a formal, attested demand, which if correctly issued and served, gives the debtor company 21 days from the date of service to pay or compromise the debt to the creditor’s satisfaction. If the company fails to do so, then it is presumed to be “insolvent”.

    If a debtor company takes issue with the claim in the statutory demand, its form or its service, then the debtor company only has 21 days within which it must file and serve an application before the Court to have the statutory demand set aside; the Court cannot allow more time in which to bring that application and the application must be served with all the evidence on which the debtor company intends to rely.

    If the debtor company responds promptly, and has creditable proof that there is a genuine dispute regarding the debt claimed, then it should immediately state that case to the party making the demand, inviting the creditor to withdraw the statutory demand. A “genuine dispute” about the debt is a very low threshold. If the creditor does not heed that, then the creditor risks losing such an application, with a costs order to bear for the creditor’s trouble.

    With time being of the essence, the worst thing you can do in relation to a statutory demand is to ignore it.

    Consider:

    1. A company which ignores the notice and allows 21 days from service to expire is presumed insolvent; this triggers an opportunity for a winding up application.
    2. Once a winding up application is made, other creditors can apply to “adopt” the application and thus even resolving the statutory demand does not solve the problem.
    3. Rebutting a presumption of insolvency is expensive and no mean feat: the onus is on the defendant, who must present the Court with the “fullest and best” evidence of its financial position.

    Where there is proper basis for belief that no genuine dispute exists, a statutory demand puts the creditor in a strong position.

    But where the debt claimed was in dispute, then the pendulum of pressure can rapidly and fiercely swing in the opposite direction and can do so at considerable cost. Not only will the costs of preparing the statutory demand be sunk, but also the imprudent creditor claim can be turned into a considerable liability. In short, a statutory demand should not be lightly made, nor lightly taken.

    Lesson for the well prepared: Habits are purportedly broken in 21 days – as are debtor companies who fail to respond to statutory demand notices.

    By Mark Love, Legal Director, Business Law.

    First published in B2B Magazine.

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  • Bradley Allen Love are pleased to announce that Alan Bradbury, John Bradley, Mark Love and John Wilson have featured in the 2014 edition of The Best Lawyers in Australia. This is the second year running for John Wilson and the fifth for Alan Bradbury.

    Our Experts Feature in “Best Lawyers in Australia 2014”

    Bradley Allen Love are pleased to announce that Alan Bradbury, John Bradley, Mark Love and John Wilson have featured in the 2014 edition of The Best Lawyers in Australia. This is the second year running for John Wilson and the fifth for Alan Bradbury.

    Created by peer-review company Best Lawyers and published by the Australian Financial Review, the list of Australia’s best includes lawyers in private practice, chosen through an exhaustive survey where top lawyers evaluate their professional peers. Ultimately a lawyer’s inclusion is based on the subjective judgments of his or her fellow lawyers.

    Our experts have been selected across the following specialties:

    • Alan Bradbury – Planning and Environmental Law
    • John Bradley – Leasing Law, Real Property Law11
    • Mark Love – Commercial Law, Insolvency and Reorganisation Law
    • John Wilson – Labour and Employment Law, Occupational Health and Safety Law

    Bradbury tops the list for Canberra in Planning and Environmental Law

    In addition to this, Alan Bradbury has been named the Best Lawyers’ 2014 Planning and Environmental Law “Lawyer of the Year” – recognition only bestowed on those with the highest score of their peer group.

    Receiving this designation reflects the high level of respect a lawyer has earned among other leading lawyers in the same communities and the same practise areas for their abilities, their professionalism and their integrity.

    The Best Lawyers list has been published for over 30 years, earning the respect of the legal profession, the media, and the public as the most reliable, unbiased source of legal referrals.

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  • redundancy

    Redundancy – No Minefield, but Tread Carefully

    Restructuring, redeploying and refocusing business activities often result in positions becoming excess to your organisation’s requirements.

    But identifying such positions is just the first step in ensuring compliance with redundancy obligations. All businesses, both large and small, need to be aware of a number of legal issues relevant to terminations and redundancies to reduce the risk of an employment dispute.

    These include:

    1. avoiding discriminatory behaviour when identifying excess positions;
    2. identifying and complying with any entitlements the employee may have under their individual employment contracts; and
    3. complying with the employer’s policies and procedures relevant to the redundancy process.

    Further, if a redundancy is to result in termination, the termination will be outside the unfair dismissal regime of the Fair Work Act 2009, if the redundancy is a “genuine redundancy” as defined under that Act. However, the definition is not as straightforward as one might think.

    A “genuine redundancy” requires an employer to be able to demonstrate:[1]

    1. that the employer no longer required the person’s job to be performed by anyone, because of changes in the operational requirements of the employer’s enterprise;
    2. the employer has complied with any consultation obligations in a modern award or enterprise agreement that applied to the employment about the redundancy; and
    3. that it was not reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise, or the enterprise of an associated entity.

    The general position regarding redeployment obligations is that an employer must consider the redeployment of the individual where the employee has the appropriate skills and qualifications to perform the new role, and the redeployment would not have any adverse impact on the operational efficiency of the business.

    One area in which employers often fail to satisfy the Fair Work Commission (FWC) that they have taken such reasonable steps to redeploy is where they do not make enquiries to identify available positions:

    1. at other work locations (e.g. interstate); or
    2. with associated entities of the business.

    In the 2012 FWC decision of Aldred,[2] a construction worker was successful in his application for unfair dismissal because his employer:

    1. failed to comply with the express consultation provisions to provide relevant information about the proposed changes, and the expected effect the changes would have on his employment, to Mr Aldred in writing; and
    2. failed to make reasonable enquiries within its enterprise to identify vacant interstate positions that Mr Aldred had suitable qualifications and experience to perform (the employer just assumed Mr Alred would not be interested in changing roles or moving interstate, without actually investigating further).[3]

    Getting a redundancy right is no minefield, but do tread carefully. Be fair about identifying who is to be made redundant, treat them in accordance with the obligations in their contract, the Enterprise Agreement or award, and your policies, and make genuine attempts to redeploy them. This will avoid most headaches.

    For advice and assistance with consultation requirements and the redundancy process please contact the Bradley Allen Love Employment Law Team on 6274 0999.
    [1] Section 389 of the Fair Work Act 2009 (Cth).
    [2] Robert Aldred v J Hutchinson [2012] FWA 8289.
    [3] Ulan Coal Mines Ltd v Honeysett; Murray v Ulan Coal Mines Ltd [2010] FWAFB 7578 at 35.

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  • bond

    Cash Bond or Bank Guarantee?

    It is common practice for a Landlord to request a Tenant to provide security for performance of their commercial lease obligations by way of cash bond or bank guarantee. However, many Landlords accept either form of security without considering the relative advantages and disadvantages of each.

    Why a bank guarantee?

    A bank guarantee is an undertaking from a banking institution to guarantee performance of the Tenant’s lease obligations. This form of security allows a Landlord to call upon the guarantee without reference to the Tenant once the bank guarantee is presented by the Landlord to the banking institution.

    This form of security is very convenient, as it requires no ongoing obligations from the Landlord such as opening a bank account and having to account to the Tenant for interest accrued.

    Another advantage of holding a bank guarantee is that the Landlord does not have to consider recent changes to the Banking Act 1959 which have reduced the timeframe before a bank account is deemed inactive from seven to three years.

    The main disadvantage of requesting a bank guarantee is the time it takes to call upon. This is normally due to the Tenant or their banking institution’s own administrative procedures which can take days or weeks to finalise. A further important consideration for Landlords when accepting bank guarantees is to ensure that the document contains all of the necessary and correct information.

    Why a cash bond?

    A cash bond is monies provided by the Tenant, usually by way of bank cheque, to guarantee performance of the Tenant’s lease obligations.

    The main advantage of accepting a cash bond is that it is easy to collect and avoids the Tenant having to deal with a banking institution which can delay security being provided.

    The primary disadvantage of accepting a cash bond, where a lease is subject to the Leases (Commercial and Retail) Act 2001 (the ‘Act’), is that under section 42 of the Act the Landlord is required to hold the monies on trust, in a bank account that attracts interest. The obligation to deposit the cash bond is arguably immediate, notwithstanding the possible intention of the parties to replace the cash bond with a bank guarantee at a later date.

    Another drawback is that the Landlord needs to be proactive to ensure the cash bond is not declared unclaimed under the Banking Act 1959. If a bank account has had no withdrawals or deposits within a three year period the account will be deemed inactive and the monies will be transferred to ASIC or the Commonwealth. Although the monies are not lost, recovery can involve a lengthy and protracted process.

    If you have any questions regarding a Tenant’s security or require any general or specific commercial leasing advice please contact Bradley Allen Love.

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  • Memorandum of understanding

    MOU - Agreeing to Agree: Just a Double Up?

    A memorandum of understanding (MOU) can be a useful mechanism to facilitate a comforting commitment between two parties to either informally agree, or to agree to negotiate an agreement. While for some this may inspire confidence and assist in speeding up negotiations, for others, in light of the supposedly non-binding legal nature of such agreements, the MOU is nothing more than a benchmark against which future drafting of a formal contract can be measured.

    Often MOUs are employed by government agencies in their interdepartmental dealings as, generally, two different arms of the same legal entity are unable to contract. MOUs allow agencies to clarify roles and responsibilities and manage expectations in joint projects.

    For the private sector, it may be appropriate for parties to enter into an MOU where a development project is unusually complex and the detail is undetermined. In those circumstances the MOU might, for example, outline the commercial intent of the parties or the framework for the transaction..

    In considering the implementation of an MOU during negotiations, parties should address whether they intend the document to impose legally binding obligations. If such an intention is required, an agreement or deed may be better suited to protecting the parties and avoiding duplication of work, otherwise the MOU should specifically state it is non-binding or state which clauses are intended to be binding (confidentiality, exclusive dealings). Common law has tended to construe MOUs as non-binding. Occasionally a presumption of intention will apply if intention is unclear, terms are clear and consideration is present.

    If due diligence is being conducted prior to the signing of any contract, an important consideration is confidentiality. Whether non-disclosure assurances are effected as a binding clause in an MOU or choosing to enter into a Non-Disclosure Agreement, the significance of confidentially regardless of the outcome is paramount. If the parties are after a quick turnaround in documents to achieve confidentiality (even if other ‘in principle terms’ have been agreed) a template non-disclosure agreement will probably suffice with the ‘in principle terms’ best left for the formal agreement or deed. There are no ‘template’ MOUs as each deal will be different.

    MOUs are absolutely appropriate in some circumstances but they shouldn’t be used as the automatic first step in a new deal.

    To consider: Are you better off pausing while the formal, legally binding (and confidential) contract is drafted which has the capability to protect both parties versus the potential uncertainty of whether an MOU is binding? Or will an ‘intentionally ambivalent’ preliminary agreement conveniently provide you with the flexibility to opt-in or opt-out prior to the formalisation of a contract?[1]

    First published in B2B Magazine.

    By Mark Love, Legal Director, Business Law.

    [1] Arthur, John, ‘Contract Law – Avoiding Legal Risk With MOUs & Heads of Agreement’, Professional Development Young Lawyers Lecture Series 2011 (18 October 2011) 2.

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  • business structure

    Choosing the Best Business Structure

    Whether you are contemplating a new venture or a shakeup of your existing business, the New Year is a great time to ask – which business structure is right for me?

    Every business is different, but they share a raft of common concerns. The three most commonly used vehicles are sole trader, partnership and private company. Each strikes a different balance between risk and reward.

    A sole trader gets your business off the ground fast with minimal compliance burdens. Start-up costs are low and any income derived is considered personal income and taxed at the relevant tax rates. If the business tires or grows rapidly, it’s easy to close it or expand into a new structure. The inherent risk is that you are personally liable for all business expenses; your personal assets are exposed to risk.

    If going solo isn’t appealing, partnerships are a common alternative, but dangerous. With similar perks to sole traders, a partnership has the added benefit of shared knowledge and resources. New partners can be added as the business grows. Apart from personal liability, the greatest threat to a partnership is infighting between partners. All debts incurred by another partner, even where done without partnership consent, can land in your lap. Should one partner decide to leave, the entire partnership could be dissolved (and your business along with it).

    The universally preferred structure is a private company. The biggest advantage is limited liability which quarantines company losses and protects against most personal liability for company debts. Companies can be run by one person or expanded by issuing shares. A company is expensive to establish, maintain and dispose of. It is subject to regulatory and reporting obligations. Directors are burdened with fiduciary duties. A failure to comply with these duties can attract financial and criminal penalties. The single most overlooked problem with a company is getting your money out as a “shareholder”; you’ll need a lawyer and that is best done well before you want to get out.

    There are real advantages to choosing the most suitable business structure, and it’s never too late to make a change that could better protect your assets, reduce your costs or expand your business into the future.

    What suits one won’t necessarily suit another so always take the time to get proper advice – it could save you considerable time and money.

    First published in B2B Magazine.

    By Mark Love, Legal Director, Business Law.

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  • Work Health and Safety

    Work Health and Safety Update: New ACT Industrial Relations Court

    There has been a shake-up in Canberra’s industrial relations world following the Work Health and Safety Act 2011 (ACT) and the commencement of the ACT Industrial Court on 8 November 2013.

    The ACT Government has ramped up work safety measures following evidence of a serious injury rate which is 31% higher than other States and Territories, and 4 workplace fatalities that took place in the construction sector prior to September 2012. A driving factor is the “Getting Home Safely, Inquiry into Compliance with Work Health and Safety Requirements in the ACT’s Construction Industry” report published in November 2012.

    The recommendations in the report focused on the construction industry, and have been accepted for implementation by the ACT Government. If they are successful, the way in which all businesses need to approach work safety will be affected.

    The ACT Industrial Court

    One of the 28 recommendations was that the ACT Government should appoint an Industrial Magistrate who can develop knowledge and experience of work health and safety matters and the impact of deterrence.

    The Industrial Court will, similarly to the Children’s and Coroner’s Courts, operate within the ACT Magistrates Court. Chief Magistrate Lorraine Walker has been appointed as the Industrial Court Magistrate and will to a large extent hear all matters under the following ACT legislation:

    1. the Workers Compensation Act 1951;
    2. the Work Health and Safety Act 2011;
    3. the Dangerous Substances Act 2004;
    4. the Machinery Act 1949; and
    5. the Scaffolding and Lifts Act 1912.

    The Industrial Court has the jurisdiction of the Magistrates Court to hear criminal proceedings as well as industrial civil claims of up to $250,000.

    Penalties under the Work Health and Safety Act 2011

    The Work Health and Safety Act 2011 which commenced in January 2012 has penalties for offences in respect of primary health and safety duties as follows:

    1. Category 1 – Reckless Conduct:this offence is committed if a person has a safety duty and without reasonable excuse they engage in conduct that exposes an individual to a risk of death or serious injury/illness and the duty holder is reckless to that risk. Maximum Penalty: Corporation $3 million, Officer or Senior Executive $6000,000 and/or 5 years gaol, an Individual $300,000 and/or 5 years gaol;
    2. Category 2 – Failure to comply with health and safety duty: this offence is committed if a person has a safety duty and fails to comply with that duty and the failure exposes an individual to a risk of death or serious injury/illness, with no element of recklessness. Maximum Penalty: Corporation $1.5 million, Officer or Senior Executive $300,000, an Individual $150,0000;
    3. Category 3 – Failure to comply with health and safety duty: this offence is committed if a duty holder fails to comply with their safety obligations. Maximum Penalty: Corporation $500,000, Officer or Senior Executive $100,000, an Individual $50,000.

    Additionally, penalties for discriminatory, coercive or misleading conduct in respect of work health and safety obligations apply. Under these provisions, an individual can also bring an injunction or a claim for compensation and reinstatement.

    One of the concerns raised by the Getting Home Safely Report was the low range of penalties being awarded in comparison with other jurisdictions. The report highlighted the range of penalties handed down in Victoria of between $30,000 and $124,000, in comparison to the ACT, where it is not uncommon for similar contraventions to receive penalties in the low tens of thousands.

    Because there have not yet been any decisions under the new work safety legislation, it is still not known whether the new Industrial Court will impose the size of penalties seen in Victoria. However, the most recent decision by Chief Magistrate Walker under the former Work Safety Act 2008 indicated that future penalties are likely to be higher. In the case, which involved an explosion of gas cans in a Canberra pizza restaurant, Chief Magistrate Walker penalised each of the two defendants $24,000 (reduced from $30,000 reflecting a guilty plea) and emphasised the deterrent effect of a penalty “where the cost of failing to comply with one’s work safety obligations is greater than the cost of compliance.”[1]

    On the spot fines issued for contraventions of workplace safety obligations

    A noticeable change has been the hiring by Work Safe ACT of additional Safety Inspectors. Over the past year there has been a significant increase in the number of site visits and subsequent issuing by them of improvement, prohibition and infringement notices. Importantly, effective from 1 July 2013, Work Safety Inspectors have been able to issue infringement notices, or on the spot fines for contraventions of the work health and safety legislation. Maximum fines are $720 for an individual and $3,600 for a company. While Work Safe ACT is currently targeting construction sites, it is likely that in the future retail and hospitality workplaces will be inspected.

    Practical steps can be taken to mitigate risk

    The new measures and penalties might appear to be strict, but they can be made workable by businesses. The Getting Home Safely Report accepts that the legislative framework more than adequately protects employees, and that far from needing more rules and regulations there is a risk of employers placing an emphasis on paperwork at the expense of their safe work practices. To better assist, Work Safe ACT are increasingly developing checklists and codes of practice which outline practical steps employers can take to mitigate risk.

    Work safety is about changing the culture in your workplace, ensuring that:
    1. employees have an opportunity to bring safety concerns to their employer’s attention in the knowledge that their concerns will be taken seriously and acted upon; and
    2. work safe policies including task specific instructions are not just in place but understood, promoted by management and complied with by all employees.

    To assist you in developing a compliant and workable safety regime in your workplace please contact the Bradley Allen Love Employment Law team on 02 6274 0999.

    [1] Anthony Noakes v Stephen Fitzsimmons and Jeremy Grobben [2013] ACTMC 8 (1 JULY 2013) at [46].

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  • security

    PPSR: Last Chance to Register Security Interest

    The two year transitional period under the Personal Property Securities Act 2009 (Cth) (‘PPSA’) ends on 31 January 2014.

    If you have been granted a security interest prior to 30 January 2012, it is time to review your existing security arrangements and confirm the security interest is appropriately recorded on the Personal Property Securities Register (‘PPSR’) before 31 January 2014.

    If a security interest is not registered before the 31 January 2014, title to an asset can be lost in the event of insolvency if the insolvent party is in possession or control of the asset. Title can also be lost to a subsequent security interest holder if they register an interest on the PPSR. Registration or perfection of a security interest is essential to protect your interests from such risks.

    There are also interests that were not previously regarded as security interests or registrable under legislation prior to the PPSA that are now regarded as security interests and they can and should be registered.

    Examples of agreements which may give rise to a security interest under the PPSA include:

    • Financing/leasing agreements;
    • Retention of title/consignment agreements;
    • Transport/haulage/storage agreements;
    • Shareholder/joint venture agreements (containing charging provisions over personal property);
    • Real property leases (in circumstances where the landlord retains ownership of fit-out and/or equipment).

    While certain security interests granted prior to 30 January 2012 were automatically migrated to the PPSR from various Commonwealth, State and Territory pre-PPSR registers, it is necessary to check if the security interest has been successfully migrated. Issues arose during the migration process which means there is no guarantee that all migrated charges were correctly registered on the PPSR, which presents a risk to security interest holders. Discrepancies in recording company details and serial numbers are just a few examples of how the migration process was flawed.

    Details regarding registering and/or searching for a security interest can be found on the PPSR website.

    For more information about registering and searching a security interest, or to better understand the possible implications of the PPSA for your business, please contact Bradley Allen Love.

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  • new year

    A Safe and Secure New Year

    Bradley Allen Love wants to ensure that all its clients enjoy a safe and prosperous New Year. If the people and the assets of a business are its muscles and bones, then information is its life blood. With this in mind, here are some recommendations for keeping your information safe and secure in 2014:

    1. Value your information. If you run a business, then along with staff and physical property, information is one of your most valuable assets. That information may well include the financial details of your customers, their purchasing history and possibly even personal information, which may be subject to the Privacy Act.
    2. Keep your computer software up-to-date. This does not mean that you have to download the latest version of an operating system the minute it becomes available – often it is wise to wait a few weeks to ensure there are no security problems with the new system. But you should ensure your internet browser, anti-virus software, email client and word processing/file viewing software are always kept fully updated, as these are key areas that hackers will try to exploit.
    3. Make a New Year’s resolution to avoid the following:
      • Opening file attachments that you receive in emails from people you do not know;
      • Sharing passwords, passphrases or any type of security settings;
      • Using USB sticks, data CDs or DVDs that have not been virus-checked first;
      • Forwarding on emails about computer viruses (many such emails are hoaxes or, worse still, may actually contain malware);
      • Activating links in emails that appear to come from a bank or similar trusted organisations that ask you to put in your username and password (you should contact the organisation concerned by telephone to resolve any alleged problems).
    4. If you run a business with employees, don’t give them more IT access than they need to do their jobs – sometimes called the “Principle of Minimal Authority”. Surprisingly, some very large organisations routinely allow employees to have access to, and even authority to change, sensitive aspects of the IT system, simply because it never occurs to the organisation to limit this access. If someone does not need access to a part of the system or information held on the system, they should not have access. Coincidentally, taking these steps also makes our job less invasive if you suffer from fraud, a system breach or information theft, because one of the first questions we will ask when investigating is “who had access?” If you tell us that everyone has access, then everyone is a suspect until we clear them. This is both costly and intrusive, so better to be safe than sorry!
    5. As most homes and businesses now use Wi-Fi, improvements to network security can be invaluable. Firstly, disable network “Administrator” (Admin) access from all computers using your wireless network. Admin privileges are required to undertake most important changes to a computer or a network, such as modifying security settings, changing access, resetting passphrases, installing software and the like. By preventing the use of Admin privileges from a Wi-Fi computer on the network, you limit the damage that a hacker can do even if they actually get Wi-Fi access to the network. In order to use Admin privileges, they will now need to be physically connected to the wireless router through the cable part of the network, which is obviously much harder than simply hacking the wireless network. Most hackers will see this as one challenge too many and look elsewhere.
    6. Try to use a complex passphrase, rather than a simple password. Even an advanced form of encryption such as WPA2 is vulnerable to “brute force attack”, when a hacker randomly generates passwords to bombard a network. If you use any form of real word, eventually the network will be breached as brute force attacks begin by using a dictionary of real words, on the basis that this is where most people find their passwords. The IT security industry recommends a passphrase that contains at least 25 characters including a mix of upper and lower case letters, numbers and symbols. While this may seem excessive to some, certainly do not use your spouse’s name, your dog’s name, your birthday, or (as some people still like to do) the word “password”!
    7. You should avoid using common Service Set Identification (SSID) names, essentially the name of the network. While some people switch off the SSID broadcast option on the router to stop neighbours knowing about the network, a determined hacker can use software to ‘sniff’ out the SSID name. It is important therefore to rename the SSID, as the brand name default can provide hints to would-be hackers as to how to breach the network.
    8. Back up your important data and keep it safe somewhere off your network. That latest trend in hacking now involves information being held to ‘ransom’. The victim usually opens an unknown link on a website or email and quickly finds that a virus has encrypted their data. This attack may even include other computers on the same network as the hacked computer. The virus then sends a message giving the victim 24 hours to pay a ransom or the virus will permanently scramble the data. Any attempt by the victim to break the encryption usually results in the virus immediately scrambling the data. Payment of the ransom doesn’t always guarantee that the encryption will be lifted. Therefore, the best way to avoid this type of hacking is to be very careful about the links you follow, the attachments you open, and to keep data backups separate from your network.

    Have a safe, prosperous and secure 2014.

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  • bullying

    New Workplace Bullying Laws

    Employees will soon be able to ask the Fair Work Commission to intervene in alleged instances of workplace bullying, with amendments to the Fair Work Act 2009 coming into effect on 1 January 2014. The legislation introduces anti-bullying laws and establishes a specific division within the Commission to govern the new jurisdiction, in a change that could cause headaches for employers.

    As a consequence of the new laws, workers who ‘reasonably believe’ they are being bullied at work may apply to the Commission for an order to stop the bullying. The use of the words ‘reasonably believe’ within the legislation will significantly increase a workers’ ability to bring claims against their employer, as to have standing they will only need a reasonable belief that they are being subject to bullying. Previously, workers alleging bullying at work had to craft claims against their employer within the (often narrow) limits of existing WHS laws, discrimination laws, or general protections (adverse action) laws available within the Fair Work Act 2009.

    It is important to note, however, that the available remedies under the new regime do not extend to any compensatory relief. Indeed, the only powers of the Commission will be to issue “Stop Bullying” orders. As President Justice Iain Ross explained in a recent press release by the Commission:

    “The new anti-bullying jurisdiction is not an avenue to provide compensation to those who have been subject to bullying, and nor is it about penalising employers. It is directed at preventing workers from being bullied at work”.

    The scope of a Stop Bullying order will extend to the Commission making orders requiring, for example:

    1. individuals or groups to stop specified behaviour;
    2. employers to regularly monitor certain behaviour;
    3. individuals to comply with their employer’s workplace bullying policy, and for employers to provide such policies to workers;
    4. employers to review their policies or provide workers with support and training.

    In anticipation of the new bullying regime, businesses may protect themselves through a voluntary review of their current workplace bullying policies or, if no such policies are in place, ensure that policies are prepared and implemented as soon as possible. Best practice could also require some refresher training for staff, whether conducted internally or with the benefit of a third party trainer (depending on the size of the organisation).

    While the new legislation’s ultimate effect on workplace bullying remains to be seen, employers should be aware of the potential for these claims to arise in 2014. In anticipation of a significant number of bullying applications being received, the Commission has released procedural guidelines for how bullying applications are to be conducted. In the first instance, the parties will be required to attend a compulsory conciliation. If the matter is unable to be resolved by conciliation, the Commission may then impose directions for the matter to be referred to arbitration for final determination. Noting that the bullying division will be a ‘no costs’ jurisdiction, responding to such claims will undoubtedly be a strain on human resources available to small to medium enterprises.

    By Ian Meagher, Director, Employment Law and Litigation.

    If your business is faced with such an application, please do not hesitate to contact the Bradley Allen Love Employment Law team for further information.

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  • newsagent wills

    Newsagent Wills are Risky Business

    The risks of an improperly or inadequately drafted Will are numerous, with the likelihood of expensive estate administration and the possibility that wishes will not be followed. ‘Newsagent Wills’ are some of the worst offenders in this area, despite their attractive price-tag, because they are often ambiguous and seldom reflect an understanding of the deeper complexity of modern estate planning that goes so much further than just having a Will.

    The need to fix problems arising from an improperly drafted Will can give rise to unnecessary costs amounting to tens of thousands of dollars, and can even damage family relationships going forward. This is particularly true if the Will unintentionally divides the estate inequitably between children, giving rise to a dispute.

    When an untrained will-maker takes on the task of drafting their own Will without understanding the critical importance of the gift of residue, the central concept of estate and non-estate assets and the role and responsibilities of the executor, the risk that the above issues will become a reality are greatly increased.

    Risks of a Newsagent Will

    Newsagent Wills are relatively inexpensive – often sold as part of a ‘two for one’ deal under $30.00. Nevertheless, many expect such Will packs to be an adequate substitute for legal advice and professional Will drafting, and their use generally comes at the cost of proper estate planning advice.

    However, estate planning is not so simple that it may be dealt with satisfactorily by a single, simple document and in the absence of legal advice in respect of your assets, the proper drafting of your Will and the many other aspects of your estate planning.

    Newsagent Wills almost always fall short of the sophistication and quality required, as such documents simply cannot provide the necessary guidance or tailoring for the particular circumstances of their users. And ultimately you are paying for a product, rather than legal advice, so you cannot call anyone if queries arise while writing the Will.

    Common issues associated with Newsagent Wills are:

    • they may be ambiguous or illegible or there could be questions about whether the document was added to after it was executed;
    • incomplete disposal of your estate, resulting in a partial intestacy meaning you, at least to some extent, do not have a Will;
    • failure to appoint an executor and backup executors, leaving no one with immediate authority to handle your estate;
    • misunderstanding what is an estate asset or incorrectly describing estate assets, resulting in gifts failing and undermining your entire plan;
    • failure to understand that specific gifts, which tend to be favoured in homemade Wills, will fail (‘adeem’) if they are not owned by the will-maker at the date of death;
    • failure to appreciate the different tax treatment of certain property and incurring a substantial tax bill as a result;
    • failure to include ‘tragedy’ clauses, to deal with the unlikely event that all of the beneficiaries of residue predecease the will-maker; and
    • the incorrect and unsafe presumption that the will-maker’s estate planning is now complete.

    Case Studies

    Our experience is that Newsagent Wills invariably cost the estate a great deal more to administer. In a 2006 case, the judge made the following comment:

    The making of home-made Wills can lead to problems. That statement is not a paid advertisement for the legal profession. It is a statement of fact. This case illustrates the point.

    Example 1: An Old Will for an Old Time

    We have had to obtain a Grant of Probate of with an old, handwritten Will that failed to dispose of much of the estate, though what it did dispose of it divided equally between the children.

    Unfortunately, times had changed and the will-maker had since re-partnered and remained in that relationship for more than a decade.

    When the will-maker died, there were issues about validity, due execution, partial intestacy and a claim under the Family Provision Act 1969 (ACT), in addition to other complicating issues, which costs the estate significantly.

    Example 2: Copying from an old, Solicitor-prepared Will

    Solicitors turn their mind to many issues when drafting a Will and will often carefully amend the Will to reflect the instructions of the client before them; it is not just a matter of copying from an old Will or a friend’s Will.

    We have had to administer estates where people have done just this, but, as a result of misunderstanding the structure of the Will, no executors were appointed, meaning that statutory rules apply.

    The failure to appoint executors was not fatal to the Will, but it needlessly incurred further costs.

    Example 3: Is it enough?

    Take the person who writes out their own Will by hand without the aid of a solicitor and just signs it at home by themselves. They may hide that document away for many years or give it to a family member for safe keeping without a further thought.

    Years later, that person passes away. It may be that we have little evidence outside of the document itself that the person intended that document to be their last Will. As result it may be regarded as a mere expression of wishes because it lacked the necessary testamentary intent.

    We have acted in one such matter where a note has been left to the effect that a child was to receive a particular property, being the vast majority of the estate. Unfortunately, that document could not be propounded as a Will because it lacked the necessary testamentary intention. The intended beneficiary had to share the property with other siblings.

    A Final Word of Warning

    Our advice is that Newsagent Wills should never be used if you:

    • are in a blended family;
    • have a business or Self-Managed Superannuation Fund;
    • have complicated taxation affairs; or
    • you wish to do anything more than ‘all to spouse’.

    The reality is that Newsagents Wills are likely to fall-short in a number of ways, and often through no fault of the will-maker. We would emphasise that the real cost is in fixing the above problems, not in instructing an experienced estate planning solicitor to draft your Will for you.

    By Keith Bradley, the Director of  Wills & Estate Planning.

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  • censored - censorship

    Porn at Work Posing Problems

    Porn at work poses plenty of problems – for both employers and the employees who view it, John Wilson says.

    The advent of the federal Sex Discrimination Act 1984 made ”sexual harassment” in the workplace unlawful. In 1984, desktop computers, laptops, mobile phones, SMS, Skype and the internet were largely future technologies. The typing pool was still de rigueur in the workplace and most senior executives would not have been seen dead getting their fingers dirty at a keyboard.

    Back then, efforts to eliminate sexual harassment may have focused simply on ridding the workplace of the many tangible things associated with it: raunchy calendars, sexually explicit posters and pictures, and ”dirty” magazines. But three decades on, porn has gone underground. As technology has evolved, workers have become smarter about the ways they harass and discriminate at work (the Australian Defence Force Academy’s Skype-sex scandal and the Jedi Council email ring are recent cases in point), as well as how they access porn.

    Sexual harassment today also encompasses things such as offensive and explicit emails, SMS messages or screen savers, accessing sexually explicit websites, obscene communications and behaviour that would also be an offence under criminal law (e.g. child pornography and using a carriage service to cause offence).

    Sometimes, a workplace culture or environment that is sexually permeated or sexually hostile may also amount to sexual harassment. As early as 1988, in the case of Bennett v Everitt, it was held that ”all employees have a right to employment without sexuality … either direct or indirect”.

    In the 1994 case of Horne v Press Clough Venture, it was held that it ”is now well established that one of the conditions of employment is quiet enjoyment of it. That concept includes not only freedom from physical intrusion … but extends to not having to work in an unsought sexually permeated work environment.” In Horne (a case that involved the display of posters of semi-naked women in a male-dominated environment), both the employer and the union were required to pay $92,000 in damages.

    But what about those cases where the pornography is not openly on display? What if the pornographic images are accessed on the work computer in the relative privacy of an employee’s own office during business hours?

    Over time, fears of prosecution for sexual harassment and sex discrimination under the vicarious liability provisions of the Sex Discrimination Act led employers, public and private sector alike, to develop comprehensive policies and procedures to try to prevent and eliminate such behaviour in the workplace.

    In addition, the code of conduct in the Public Service Act 1998 requires that all Australian Public Service employees ”when acting in connection with APS employment must treat everyone with respect and courtesy, and without harassment”. Thus, it is a breach of the code for an APS employee, when acting in connection with their employment, to sexually harass anyone – including his or her fellow employees. The phrase ”in connection with APS employment” extends the prohibition not only to behaviour in the workplace but to behaviour anywhere that somehow or other has ”connection with APS employment”.

    Some might expect, given the (at least outward) moral opprobrium that surrounds the subject, that accessing porn via the internet or email at work – and even, in some circumstances, outside of work using a work device – would amount to a breach of the APS code of conduct (and, where they exist, relevant agency-specific policies and procedures) and would inevitably lead to dismissal.

    However, recent cases indicate this is not as clear-cut as some might assume. While it may be determined that such conduct does amount to a breach of the code, it does not inexorably follow that a dismissal for such conduct will be upheld by the Fair Work Commission or a court, as is demonstrated by two recent public sector cases before the commission.

    The case of B, C and D v Australia Post, which was decided in August, concerned three employees who were dismissed by Australia Post for sending emails containing porn (including ”hard-core” material) to work colleagues using work facilities. Before a single commissioner at first instance, two of the employees had their unfair dismissal applications rejected. The other was found to have been harshly dismissed, but was awarded compensation rather than reinstatement. On appeal before a full bench, each of the employees had their applications upheld by a majority.

    Australia Post had a policy in place that prohibited what the employees had done. A new software system it had installed unearthed the fact that many staff, including supervisors and managers, had breached the policy. Forty employees were disciplined as a result. Some were dismissed; others received lesser sanctions.

    In upholding the appeal, the majority considered that the commissioner at first instance had given too much attention to whether there was a ”valid reason” for the dismissals, and neglected to properly consider other factors that weighed in the employees’ favour. They pointed out that whether an employer has a ”valid reason” for sacking an employee is only one of a number of factors that the commission must consider when determining whether a dismissal is ”harsh, unjust or unreasonable”.

    The majority found that Australia Post had failed to take ”active steps” to notify staff that breaches of the policy would be taken seriously, and noted that the policy did not say that dismissal was a likely sanction for breach. They also found there was a tolerance for pornographic material in the particular workplace, and said Australia Post should have taken steps to monitor policy compliance and manage risk much earlier than it did. The majority were also critical of the criteria used to determine the appellants’ sacking compared with that applied to those who were not dismissed, and the fact that managers who appeared equally involved as the appellants also escaped dismissal. They also noted the employees’ long service, otherwise good disciplinary records, and the harsh economic effect that dismissal would inevitably have on them.

    Those other factors, so the majority held, made the dismissal of the appellant employees ”unfair”, notwithstanding that Australia Post had a ”valid reason” for terminating their employment.

    In short, while they acknowledged that it was reasonable and necessary for employers to take steps to eradicate the access and distribution of porn at work (among other things, for work, health and safety reasons, and to reduce the risk of staff being sexually harassed upon being confronted with such material), the majority held that sacking an employee for breaching a code or policy that bans the access, distribution or storage of porn will not automatically be ”fair”. Granted, they said a dismissal for such a breach will often, ”if not usually”, be upheld. However, there may be special factors that render a dismissal for doing so ”unfair”.

    Read the full article in the Canberra Times’ Public Sector Informant.

    By John Wilson, Legal Director, Employment Law.

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  • Boundless Playground at Black Mountain Peninsula

    Bradley Allen Love partners with Boundless

    Bradley Allen Love Lawyers is proud to be supporting Boundless Canberra, as they raise funds to build an all-abilities playground to celebrate the national capital’s centenary.

    To be built on the shores of Lake Burley Griffin near the Carillion, the playground will be a free play space with world class facilities, designed to be inclusive for children of all ages and abilities.

    “Canberra is a fantastic place to raise children and one of the reasons for that are the many parks and playgrounds throughout our city,” Boundless Canberra Chair Ross Barrett explained. “However, children with disabilities often can’t access these parks and miss out on the fun and learning benefits that are associated with play.”

    Bradley Allen Love provided legal services as an auction item for the Charity Ball last month, with all proceeds going to Boundless.

    “The Boundless project is a great gift from the people of Canberra to the city, and will provide a space for children from all around the region to enjoy the nation’s capital over the next 100 years.”

    Bradley Allen Love Lawyers’ partnership with another centenary project, providing pro bono legal advice to Craft ACT, was recognised in September with the 2013 Creative Partnerships SME Award for New South Wales and the Australian Capital Territory.

    Bradley Allen Love is proud to actively support a range of community organisations and endeavours. For more information see our Community page.

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  • redundant volunteers

    A Taxing Question: Are You Really Redundant or Merely Excess?

    Part one of this article looked at the distinction between being found to be ”excess to requirements” under the Public Service Act and the meaning of ”genuine redundancy” or “redundant” under the Fair Work Act. A case recently decided by the Federal Court’s full bench, Weeks v Commissioner of Taxation, shows these distinctions can have very real-world consequences in relation to the taxation of payments made to an employee who has left their employer.

    Before looking at the decision in Weeks, it is worthwhile setting out the central provision of the Income Tax Assessment Act, section 83-175(1), which is written in the following terms:

    What is a genuine redundancy payment?

    A genuine redundancy payment is so much of a payment received by an employee who is dismissed from employment because the employee’s position is genuinely redundant as exceeds the amount that could reasonably be expected to be received by the employee in consequence of the voluntary termination of his or her employment at the time of the dismissal.

    The questions arise: is a termination of employment on the ground of being ”excess to requirements” a ”genuine redundancy” under tax law? Is a ”directed retirement”, as per section 37 of the Public Service Act, a real ”retirement” at all?

    Taxation ruling TR 2009/2 is quite detailed but it relevantly provides the following:

    The commissioner’s view is that a genuine redundancy payment can only arise where there is no suitable job available for the employee with the employer, meaning that he or she must therefore be dismissed.

    Dismissal is a particular mode of employment termination. It requires a decision to terminate employment at the employer’s initiative without the consent of the employee. This stands in contrast to employment that is terminated at the initiative of the employee, for example in the case of resignation.

    … Consent in this context refers to the employee freely choosing to agree to or approve the act or decision to terminate employment in circumstances where the employee has the capacity to make such a choice. Determining whether an employee has consented to their termination requires an assessment of the facts and circumstances of each case. Consent may be either expressly stated by the employee or implied by their behaviour or conduct.

    If we turn now to the Weeks decision, the full bench of the Federal Court found no inconsistency between a public sector executive being ”excess to requirements” under the Public Service Act and her position not being genuinely redundant.

    A former Australian Taxation Office executive, Cheryl Weeks, failed in her argument that the termination of her employment was a genuine redundancy under tax law.

    The full court upheld an earlier ruling that her termination payout did not amount to a genuine redundancy payment under the Income Tax Assessment Act.

    The Tax Office terminated Weeks’s employment under s29(3)(a) of the Public Service Act. That is, the reason for her termination was that she was ”excess to requirements”.

    In response to a submission by Weeks, her manager had agreed to her termination being treated as a ”voluntary redundancy” under clause 97 of the ATO (Executive Level 2) Agreement 2009.

    The full court rejected her argument that the payment be treated in a tax-advantaged manner as a genuine redundancy payment. The court saw no inconsistency between the employee being excess to the requirements of the agency and the employee’s position not being (genuinely) redundant. In the reasons for judgment, the court observed that the ”important question for present purposes is whether she was genuinely redundant”, and went on to note that case law had established that ”redundancy occurs where an employer no longer requires that a job be done by anyone. That situation – where a job effectively disappears – must be distinguished from the situation in which the employer no longer wants a job done by the (former) employee in question.” The court found that, in this case, the job had not disappeared, even if the position number had changed.

    Weeks was therefore liable for a substantially increased tax bill.

    Thus, you can be excess to requirements, terminated from your employment by way of an offer of redundancy, but not actually have that payment treated under tax law as a genuine redundancy payment.

    When one assesses the definitions of ”excess to requirements” and the kind of effort that would need to be put into redeployment before such a determination being made, it seems clear that a properly founded case of ”excess to requirements” would also satisfy the requirements for a ”genuine redundancy” under the Fair Work Act. However, as discussed above, this does not mean payments received as a result of being found excess to requirements will attract the tax benefits applicable to a ”genuine redundancy” under tax law.

    All this seems to suggest that, if a public servant is notified that they are ”excess to requirements”, they should first ascertain what steps their employer has taken to find them ”suitable employment” elsewhere within the Australian Public Service. That is, what efforts have been made for their ”redeployment”.

    If, on its face, it seems that the agency has made a genuine effort to redeploy them, then the public servant should get a statement from their employer saying that not only are they excess to requirements but their position has been made redundant. Additionally, the public servant should specifically ask their employer if theirs is a case where the employer no longer wants the job done by them specifically or, rather, if it is a case where the job has effectively disappeared.

    If the job has effectively disappeared, the public servant should be able to access the tax benefits that are attracted by a ”genuine redundancy payment” under the Income Tax Assessment Act. However, if the employer has decided that they do not wish for the public servant to specifically do the job in question, the public servant should seek answers as to why this may be the case. He or she may find that they have redress because of:

    • a breach by their employer of their enterprise agreement;
    • a breach by their employer of applicable anti-discrimination legislation; or
    • a breach by their employer of the general protection provisions under the Fair Work Act.

    First published in the Canberra Times’ Public Sector Informant.

    By John Wilson, Legal Director, Employment Law.

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  • redundancy

    Pitfalls of Picking the Wrong Redundancy

    The Australian Public Service is at the forefront of the new government’s search for savings. The Coalition announced before the election it would significantly reduce the size of the federal bureaucracy. Public servants and their managers will need to be aware of the ways in which these savings can be sought with redundancy.

    Excess to Requirements

    Section 29(3)(a) of the Public Service Act says an employee can be terminated if they are ”excess to the requirements of the agency”. An agency is either a department, an executive agency or a statutory agency. The act does not provide a definition of ”excess to requirements”, though a brief review of individual agencies’ enterprise agreements shows they define excess to requirements in much the same terms. Broadly, they say:

    An employee may be declared excess if:

    • there is a greater number of employees at the employee’s regular level than is necessary for the efficient and economical working of the department; or
    • their services cannot be effectively used because of technological or other changes in work methods, or other organisational changes in the department; or
    • the employee is unwilling to move to or perform duties at another locality where their usual duties are reassigned, and the secretary determines that these provisions will apply to that employee.

    The Senior Executive Service

    In relation to SES employees, there is also section 37 of the act:

    … an agency head may give a notice in writing to an SES employee in the agency, stating that the employee will become entitled to a payment of a specified amount if the employee retires within a period specified in the notice.

    Relevantly:

    … if the employee retires within the specified period, by notice in writing to the agency head: (a) the employee is entitled to be paid the specified amount; and (b) the employee is taken, for all purposes, to have retired involuntarily from the APS.

    The concept of a genuine redundancy is set out in the Fair Work Act. Under section 119, an employee is entitled to redundancy pay if their employment is terminated at the employer’s initiative because the employer no longer needs the employee’s job to be done by anyone, except where this is due to the ordinary and customary turnover of labour. Additionally, section 389(1)(a) tells us that a genuine redundancy exists where:

    … the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.

    Genuine Redundancy

    Section 389(2)(a) tells us that a person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

    • the employer’s enterprise; or
    • the enterprise of an associated entity of the employer.

    The meaning of section 389(2) was considered by the full bench of Federal Court in Ulan Coal Mines v Honeysett and Ors, where the court essentially found that if, at the time of the dismissal, there was a job to which the employee could be redeployed, whether a person should be redeployed depended on several factors. They include: the nature of any available position; the qualifications needed to perform the job; the employee’s skills, qualifications and experience; the location of the job in relation to the employee’s residence; and the remuneration that is offered.

    For public servants, the question of whether other federal government agencies could be considered ”associated entities” for the purposes of the Fair Work Act was considered by the Fair Work Commission in Noronha v Department of Veterans’ Affairs. After some discussion of the meaning of associated entities under section 50AAA of the Corporations Act, the commission found ”that Commonwealth government departments would be considered ‘associated entities’ ” and that ”the dismissal of a Commonwealth government employee in one department may not be a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within another Commonwealth government department”.

    It is worth noting that, since about 1999, public servants have not been employed in a particular ”office”. Rather, they are employed at ”a level”, such as APS1 to APS6. That is, subject to the obvious limits in relation to certain employment tasks, each and every public servant at a particular level was seen to be interchangeable with every other public servant employed at the same level in the agency. There have been cases where a person has been moved from a job they enjoy at a certain level to a job they, at the very least, might not enjoy at the same level. This is perfectly legal. They are still being employed at that level regardless of the fact that their day-to-day job tasks and functions may have substantially changed. This, then, suggests it should be easier to redeploy a public servant from a particular level in one branch or agency to another branch or agency at the same level. Coupling this with the discussion in Noronha would suggest that an agency or department would need to go to some lengths to show that any termination of a public service employee was a genuine redundancy.

    Whether someone is ”excess to requirements” seems an easier hurdle to jump and will be considered in more detail next month in part two of this article, dealing with the tax consequences of ”voluntary redundancies” and being found to be ”excess to requirements”.

    First published in the Canberra Times’ Public Sector Informant.

    By John Wilson, Legal Director, Employment Law.

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  • risk

    Contractual Risk: Filling the Gap

    Australia exists as one of the most regulated economies in the world. As new technology and access to information sweeps through our lives, society’s expectations of what businesses should deliver is constantly rising. That expectation shift means increased risk for businesses, as our society becomes increasingly litigious.

    In all skilled trades and professions this increasingly complex world demands that businesses must get specifically skilled teams to do specific jobs. Industry has long dealt with meeting specialist needs by “subcontracting”.

    What many often overlook is the risk posed to them by “proportionate liability” and by the further subcontracting of modern day responsibilities to multiple subcontractors down the line. Having multiple contributors to an outcome can leave a gap between the contractual commitment which a “head contractor” makes with its client and the capacity of the head contractor to recover compensation from its subcontractors.

    Where multiple subcontractors have failed to take reasonable care or have breached the Australian Consumer Law causing economic loss or damage to the client then each “concurrent wrongdoer” who contributed to that loss will only be found liable for the proportion of the loss that they caused. Therefore, if the head contractor is going to be able to recover 100% of the loss inflicted on the client, then every party who contributed to the loss must be identified and pursued for their share.

    First published in B2B Magazine.

    By Mark Love, Legal Director, Business Law.

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  • commercial building - intellectual property law

    A Reminder for Commercial Buildings Owners – don’t forget your BEEC

    In November 2011 the Building Energy Efficiency Disclosure Act 2010 (‘the Act’) came into effect as part of the Australian Government’s initiative toward promoting energy efficient commercial buildings and greener leasing.

    The Act requires building owners to produce a Building Energy Efficiency Certificate (BEEC) when offering for sale or lease space over 2,000 square metres which is capable of being used or is used as office space. This will include entering into a new lease with an existing tenant which exceeds the required area.

    A BEEC certificate must include:

    • An up-to-date National Australian Built Environment Rating System (NABERS) energy efficiency star rating for the building;
    • An assessment of tenancy lighting in the area of the building that is being sold or leases; and
    • General energy efficiency guidance.

    A BEEC is only valid for 12 months, so it is important a building owner checks whether the building has a current BEEC before they invite offers to buy, let or sublet a building (or part of a building).

    Failure to have a BEEC can be extremely costly to a building owner with theAct allowing Courts to imposepenalties of up to $170,000 for a body corporate and up to $59,500 for an individual. Alternatively, infringement notices can be issued by the government with fines of up to $17,000 for a body corporate or $5,950 for an individual.

    TheAct will not apply to a building that is less than 2 years old or if it is strata titled. It will also not apply to a lease if the term being offered is for 12 months or less.

    If you are contemplating the sale of a building or lease of an area of more than 2,000 square metres then Bradley Allen Love Lawyers can assist with the preparation of contracts to ensure building owners are not in breach of their obligations.

    For more information or specific advice regarding the sale or leasing of commercial buildings please contact our specialist Commercial Property Team.

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  • SMS

    Sacking Staff by SMS? It Won’t End Happily

    Breaking up by SMS is generally considered a cowardly act. But what people do in their private lives is a far cry from what they do in the public arena of employment – and sacking staff by SMS is really not a smart way to go.

    Recent cases of ‘sacking by text’ suggest that employers should think twice before hitting the send button on their mobile phone, yet unfortunately this type of conduct appears to be on the rise.

    An employee made a successful general protections claim on the basis of such circumstances.

    OC (not her real initials) was employed as a permanent full-time senior member of staff and was soon due to commence maternity leave. There had been no performance issues during OC’s employment, and there were no signs of any down-turn in the business – indeed the company had just hired a new employee.

    OC asked for a minor reduction in her hours, particularly on her longest day, because she was getting very tired working on her feet all day.

    Shortly after making this request, OC was called into a meeting with her employer and was told she had to become a casual and work significantly less hours per week, because business was bad.

    OC immediately disputed the changes, and was told that a letter about her new employment conditions would be waiting at work. When she went to collect it, the manager would not speak to her and a third party (not an employee) had to give OC the envelope. Unsurprisingly, she left work immediately in a state of shock, and two days later was sacked by text message.

    OC made a general protections application to the Fair Work Commission, and received a considerable lump sum from her former employer by way of settlement.

    In a similar case, the Fair Work Commission (‘FWC’) made a ruling against an employer for firing staff by text, fining the business almost $10,000 after the Commission ruled the sacking by text was harsh, unreasonable and unjust.

    The Commission found there were no reasons given in the text, or during the later hearing, that included any allegations of “serious misconduct” justifying an instant dismissal.

    The FWC Commissioner even added that the text sacking showed a “lack of courage”.

    The message from these cases is that firing staff by SMS message is completely inappropriate, and unlikely to end happily for the boss who decides to take what seems to be, but is not, the easy way out.

    Contact our Specialist Employment & Workplace Relations Team for more information.

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  • Personal Property Security Register

    Personal Property Security Register – No More Excuses

    Do you have a security interest?

    Is your security interest registered on the Personal Property Security Register?

    With many individuals and companies still struggling to understand the implications of the Personal Property Security Register (PPSR), it is crucial that people who have a security interest in property take it seriously or risk losing their security interests.

    With the PPSR transitional period set to end on 30 January 2014, those who have been granted a security interest before 30 January 2012 need to ensure those interests are registered on the Personal Property Security Register.

    Failure to have a security interest registered on the PPSR will mean that those interests will be unenforceable if a subsequent security interest holder registers an interest on the PPSR. This is particularly relevant for those who are engaged in the business of:

    • Leasing and hiring equipment;
    • Supplying goods based on retention of title;
    • Mortgaging equipment; and
    • Charging individuals or companies property as security for loan repayments.

    To ensure you are protected it is important you search the Personal Property Security Register.

    Although some security interests prior to 30 January 2012 have been migrated onto the Personal Property Security Register (eg. charges registered on the ASIC Register of Company Charges) others may not have. Even where charges have been ‘successfully’ migrated onto the Personal Property Security Register, issues have arisen during the migration process which mean there is no guarantee that all migrated charges are properly registered on the PPSR.

    To check a security interest is registered on the PPSR click here.

    Before searching the online register you will need to set up an account. Once you have an account and pay a small fee you can search by serial number, individual or by company to locate a security interest.

    Failure to search the PPSR register and register missing interests means you risk losing your security interest all together.

    For more advice on searching and/or registering a security interests please contact our Commercial Property Team at Bradley Allen Love Lawyers who will be happy to assist.

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  • house construction

    Pitfalls in Responding to Defective Sub-contractor Construction

    The Building and Construction Industry (Security for Payments) Act 2009 (“the Act”) aims to expedite the recovery of payments owing to smaller sub-contractors who may otherwise be disadvantaged if they are forced to litigate against larger head-contractors.

    The Act achieves this through a mandatory adjudication process. The adjudication process under the Act can be summarised through the following steps:

    A claim is made

    Any person who carries out construction work under a construction contract (excluding residential works) can make a claim under the Act. The claim must (a) identify the works performed, (b) state the amount claimed, and (c) express that the claim is made pursuant to the Act.

    The Payment Schedule

    If served with a Payment Claim, the builder will have 10 business days to provide a Payment Schedule. The Payment Schedule must assess what the builder says is owing and, if it is less than what is claimed, it must specify the reasons why.

    If the Payment Schedule does not specify all the reasons available to the builder, an Adjudicator can only consider those listed in the Payment Schedule.

    If no Payment Schedule is provided, the claimant may bring Court proceedings for judgment, and the builder will be barred from raising a Defence in relation to matters arising under the contract.

    Adjudication

    If the claimant does not accept the Payment Schedule, they have 10 business days apply for adjudication. If adjudication is applied for, the builder will have only 7 days to respond (or 5 days from when the Adjudicator accepts his/her appointment, whichever is the later).

    Given the short time limits, if you anticipate a dispute, document everything.

    The Determination

    The adjudicator will make a determination within 10 days of the builder’s Response being received. The determination will specify the adjudicated amount payable (if any) which is binding on the parties. Failure to pay the adjudicated amount within 5 days can lead to the decision being recognised as a judgment debt by the Courts, with enforcement action (including winding-up of your company) to follow.

    Appeal Avenues?

    The adjudicator’s decision is final. The Supreme Court will only hear appeals on errors of law, such as whether the Adjudicator acted outside of his/her jurisdiction. A party cannot appeal where they are simply dissatisfied with the findings of fact by the Adjudicator.

    However, the Act does not prevent a party from commencing civil proceedings to recover a payment paid under the Act, if they believe the adjudication decision was made in error.

    If you receive a statutory demand, always act immediately. Contact our Litigation and Dispute Resolution team for more information.

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  • Enforcement

    Enforcement of Judgments – What are Your Options?

    Obtaining judgment in your favour is often only half the battle, as the judgment debt then needs to be enforced. There are multiple enforcement options available for creditors, the suitability of which will depend on various factors, including the financial circumstances of the debtor and the quantum of the debt.

    Initial considerations

    The first step to take after obtaining judgment is service of the judgment order and notice in compliance with the Court Procedures Rules 2006 (ACT) – enforcement of the judgment can only commence seven days after service has been effected. From there, creditors have twelve years to enforce judgment debts.

    The most crucial consideration is whether the debtor has the financial ability to satisfy the judgment debt. If they have assets, property or a steady source of income then it is likely that one of the enforcement options is suitable. If not, or you are unsure of the debtor’s position, this information may be obtained.

    Further, the debtor (or the assets) against which the creditor wishes to enforce must be within the Australian Capital Territory. If outside this jurisdiction, the creditor can register and enforce the judgment debt interstate. Certainty is key in respect of enforcement of judgments, as this process can be difficult and costly if not done correctly. While the creditor’s costs (as well as interest) are recoverable as part of the judgment debt, this is usually limited to scale costs (as determined by the quantum of the debt) and so getting the pre-requisites right and seeking the appropriate enforcement order is of high importance.

    Enforcement hearings

    Enforcement hearings are a useful tool to inform the creditor of the debtor’s financial position (including assets, liabilities, income, living expenses and dependants). This information is either obtained by way of a sworn statement (served prior to the hearing) or on oath before the Court. From this, the creditor may consider and apply for an appropriate enforcement order, or decide to wait to enforce the judgment debt at a future date in the hope that the debtor’s financial position will improve. Enforcement hearings can only be held in respect of the same judgment debt and debtor once every six months, although on application the Court may grant leave for a further hearing.

    Garnishee orders

    A creditor may apply for various garnishee orders, which can be enforced against wages, bank accounts, regular payments made to the debtor (such as rental income) as well as debts owed to the debtor.

    Instalment orders

    The Court can order that a regular payment of a set sum be made (weekly, fortnightly or monthly) in satisfaction of the judgment debt. The creditor or the debtor may apply for an instalment order to be made, or, if both agree on a certain payment plan, the Court can make an instalment order by agreement.

    Seizure and sale orders

    A seizure and sale order authorises the sheriff to enforce the judgment debt by selling the debtor’s real and personal property. Some property, such as a primary vehicle up to a certain value, or tools used for the debtor’s trade, are exempt from seizure, and creditors must be cautious where the debtor’s property is subject to a charge or mortgage, as the judgment debt will only be paid once the charge or mortgage has been satisfied.

    By Laura Scotton, Litigation.

    Contact our Litigation and Dispute Resolution team for more information.

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  • Employment PolicyPackages

    Statutory Demands: Pay Up or Wind Up

    There is little scope for error for creditors or company debtors where statutory demands are concerned. The consequences for failure to comply with a demand are harsh. The Courts are bound by a strict legislative framework in relation to the operation of statutory demands and a failure to properly issue a demand can be expensive.

    A statutory demand notice is a formal, verified demand issued under section 459E of the Corporations Act 2001 (Cth). It is a very effective instrument for ascertaining whether a company can pay its debts as and when they fall due. If such a demand is correctly issued and served and the debtor company fails to pay the debt within 21 days from the date of service of the demand, or otherwise fails to make arrangements to pay the debt to the creditor’s satisfaction, the company is presumed “insolvent” and the creditor can make an application to wind the company up.

    Issuing Statutory Demands

    Issuing a statutory demand is one of the quickest and least expensive avenues of recovering money owed to you by corporate debtors. It is also one of the most effective ways of enforcing a judgment of the courts if the judgment debtor is a company.

    In what circumstances can you issue a statutory demand? A statutory demand can only be issued to a corporate debtor if:

    • the debt or debts owed total more than $2,000; and
    • there is no genuine dispute about the existence of the debt or debts. (If the debt is a judgment debt, there is an automatic presumption that there is no dispute as to the existence of the debt).

    If a creditor issues a demand that fails to meet these tests, the demand will fail.

    Importance of Getting the Statutory Demand Right

    The Courts have held that creditors who use statutory demands must ensure the demand is expressed in clear, correct and unambiguous terms. The Corporations Act 2001 (Cth) places strict requirements on the form and wording of the demand and the methods of service.

    If the demand is confusing, does not correctly identify the creditor, the debtor or the debt outstanding, the creditor risks having a Court set aside the demand.
    If a statutory demand is set aside the creditor will not gain the benefit of presumed insolvency and the creditor is likely to bear liability for the debtor’s costs in that application.

    A creditor should consider the following before issuing a statutory demand:

    • if the debtor company fails to comply with the statutory demand this does not enhance the creditor’s rights to enforce the debt – liability to pay the debt must still be proved;
    • if the debtor company applies to have the statutory demand set aside and succeeds – the Court is likely to order the creditor to pay the debtor company’s legal costs;
    • if the debtor company complies with the statutory demand, pays the monies outstanding, but then enters into liquidation within 6 months of making the payment to the creditor – the payment may be considered an unfair preference and the creditor may be required to return the money. The issue of the statutory demand by the creditor tends to be evidence that the creditor had grounds to suspect that the debtor company was insolvent.

    Receiving a Statutory Demand

    Statutory demands must be served upon the debtor company in accordance with section 109X of the Corporations Act 2001 (Cth). This merely requires delivering it or posting it to the company’s registered address or delivering a copy of the document personally to a director of the company.

    These methods of service place a responsibility on directors as well as the true occupiers of the registered office, which typically might be the company’s accountants, financial advisers or lawyers, to take action in response to the statutory demand immediately.

    For these reasons, having a domestic residence as a company’s registered office is inadvisable, as absence or failure to deal with mail for periods of weeks is not uncommon.

    The worst thing you can do in relation to a statutory demand is to ignore it.

    Importance of Acting Immediately

    A debtor company has 21 days from the date of service of the demand to either pay the money owed or to make an application to set aside the statutory demand.
    This time frame is strictly enforced by the courts.

    A creditor is entitled to assume that the debtor company has been served 4 days after the date on which they posted the demand. Debtor companies cannot get an extension of time.

    A delay of even one day may mean that the debtor company cannot set aside the demand and then, in response to an application to have the debtor company wound up, the company must bring sufficient evidence before a Court to prove that the company is in fact solvent – the issue before the Court is no longer the debt on which the demand was issued, but the solvency of the company.

    Time, then, is of the essence. In Challenge Home Loans v Etienne Lawyers [2007] NSWSC 1145 there was a factual dispute as to the day on which the demand was served. The Court held that the demand had actually been served one day prior to the day the debtor company had thought and as such their application to set aside the demand failed.

    If the demand is disputed, a debtor company can attempt to negotiate with the creditor to unconditionally withdraw the demand but the debtor company should also instruct solicitors and prepare both the application to set aside the demand and the affidavit material to dispute the debt in the event negotiations fail; those materials must be filed and served within the 21 day period.

    To be clear, we repeat: an application to set aside the demand including the affidavit material to be relied upon must be filed and served upon the creditor within the 21 day period.

    Consequences of failure to act

    If a debtor company fails to comply with a statutory demand or have the demand set aside, a presumption can be made that the debtor company is insolvent (s 459C(2)). A creditor can then use this presumption of insolvency to apply to the Court to have the debtor company wound up.

    If you receive a statutory demand, always act immediately. Contact our Litigation and Dispute Resolution team for more information.

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  • unsolicited goods

    ‘Where’s My Money?’ Unsolicited Goods and Demands for Payment

    It is a time honoured scam – send someone unsolicited goods and then demand payment, yet unsurprisingly it’s also against the law. Recipients of such goods or unsolicited services are protected by consumer law and any assertion of a right to payment can lead to pecuniary penalties.

    Under section 40 of the Australian Customer Law (‘ACL’), a person involved in trade or commerce is prohibited from claiming a right to payment from the receiver of unsolicited goods or services, unless there is a reasonable cause to believe a right to payment exists.

    Similarly, the ACL prevents the sending of an invoice for unsolicited goods or services unless it contains a regulation-compliant warning statement.

    The good news for a recipient of unsolicited goods or services is that the law is clearly on their side. However, it would still be prudent to take further steps as outlined in the ACL. The recipient should give the sender of the unsolicited goods a written notice stating their:

    1. Name and address;
    2. Address for collection;
    3. A statement that the goods are unsolicited.

    Having sent such a letter, the recipient can be safe in the knowledge that the sender of unsolicited goods loses the right to recover the goods one month after the notice was given. Alternatively, even if no notice is sent, the sender loses any recovery rights three months after the goods were received.

    As Halsbury’s states, ‘thereupon they become the property of the recipient. The recipient is not liable to make any payment for the goods, and is not liable for their loss or damage during that period, except in the case of a wilful and unlawful act.’

    It is therefore clear that the ACL provides protection for businesses and individuals who receive unsolicited goods or services. Although it may be prudent to send a return letter informing the sender of the address for collection, demands for payment are unlawful and the goods become property of the recipient three months later.

    If you have received unsolicited goods or services and a corresponding demand for payment, do not hesitate to contact Mark Love, Director of Business and Corporate Law at Bradley Allen Love Lawyers or the Australian Competition and Consumer Commission.

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  • football

    Why You Should Watch Football

    Bruce Malcolm Reid is a doctor contracted to the Essendon Football Club as the “Club Doctor”. He is bringing a case against the Australian Football League to require it to have an independent party hear allegations against him that assert he breached the Australian Football League Rules.

    In his writ filed before the Supreme Court of Victoria, Dr Reid’s counsel say that charges were laid against Dr Reid by the Australian Football League: namely for engaging in “conduct unbecoming or likely to prejudice the interests or reputation of the Australian Football League or bring the game of football into disrepute”. The Essendon and others associated with the circumstances leading to the charges laid against Dr Reid have resolved matters with certain agreed admissions being acknowledged, fines, bans and a range of penalties.

    The issue for your organisation is “Can I keep my disciplinary processes out of the Court?”

    The short answer to that is “No”, as the Court bows to no-one (allowing the full appellate process to be followed). But following the Dr Reid Saga will be educational for many, as it moves to a hearing in two weeks’ time. The real issue here is what issues of bias arise when you apprehend a code breach, assess and, investigate conduct, decide that a contravention may have occurred, and then preside over determining what penalty should apply.

    In the course of our work we assist our clients with a range of code compliance issues, whether that is in the course of personal behaviour, employment, advertising in breach of codes, industry rules in the course of conduct, marketing safety or other compliance, as well as professional and educational accreditation standards compliance. These matters have much in common with Dr Reid’s case (‘the Dr Reid Saga’). Much is also is about sustaining industry self-regulation by ensuring the process has integrity, and that the reputation of the assessing body remain intact.

    As you would imagine, Counsel for the Australian Football League delivered Dr Reid a well-crafted and lengthy statement of grounds, articulating the basis on which the AFL apprehended Dr Reid had engaged in “conduct unbecoming or likely to prejudice the interests or reputation of the Australian Football League or bring the game of football into disrepute”. That ticks part of the first fundamental box in applying “natural justice”:

    • Inform the person whose interests are likely to be affected by any allegations about the allegations; and
    • Provide such person with an explanation as to why the decision-maker is considering making the decision, stating the grounds before the decision maker and an outline of the consequences of an adverse decision; and:
    • Provide such person with a reference to the relevant rule or policy relevant to the allegation and at least an outline of the material evidence that the investigator relies on to support the allegation.

    These actions go towards that part of natural justice which requires that people are entitled to know the case against them. The second part of that requirement is that people need to be given an opportunity to respond to the case against them – a fair hearing so to speak.

    In the Dr Reid Saga, Dr Reid appears to be objecting to the fact that the Australian Football League is apparently ruling on its own investigation. These concerns arise from the perception of bias – can one party fairly be judge, jury, and executioner?

    Is that somehow wrong?

    Now those of us minded to look to notions of “Separation of Powers” and “Westminster Justice” can be inclined to burr up at such a French concept as a formal hearing being part of the investigative process: how can an investigation lead to a ‘determination’ at the conclusion of that investigation with no independent judge? But such structures are not only common, but typical and intended, and in the realm of bodies who seek to regulate their own affairs, highly desirable.

    So, how do you achieve such an outcome? Any regulating body whose actions stand to unfavourably affect the rights and interests of an organisation or a person, should expect the scrutiny of the Courts in dispensing their “justice”.

    But the role for society’s ultimate scrutineer (the courts) can be mitigated, reducing that to considerations of whether the rules were properly applied and cases of actual bias, oppression, fraud and other like malfeasance. But this reduction can only through clear drafting of the rules of engagement in the disciplinary processes.

    Getting the rules “right” is particularly important for those bodies who administer industry regulatory schemes and professional or educational accreditation processes – particularly where an aspect of public policy is being fulfilled.

    Where a member of your organisation or a member of the public has a legitimate expectation that the rules of natural justice and fairness will apply, then a range of (judicial)rules (‘the Rules’) regulating behaviour, will, in all likelihood, apply to the inquisitorial and decision-making processes at all stages of the decision making path. These rules can apply to all sorts of processes and decisions from admission to membership through to expulsion and everything in between.

    The Rules are about openness, fairness, participation, accountability, consistency, rationality, legality, and impartiality.

    The Rules, in addition to requiring that persons be afforded natural justice (otherwise known as procedural fairness) in relation to decisions that adversely impact on their rights provide that a person aggrieved by a decision may apply to the Court for an order of review in relation to the decision on any one or more of the following grounds:

    • that a breach of the rules of natural justice happened in relation to the making of the decision;
    • that procedures that were required by law to be observed in relation to the making of the decision were not observed;
    • that the person who purported to make the decision did not have jurisdiction to make the decision;
    • that the decision was not authorised by the rules under which it was purported to be made;
    • that the making of the decision was an improper exercise of the power given by the rules under which it was purported to be made;
    • that the decision involved an error of law, whether or not the error appears on the record of the decision;
    • that the decision was induced or affected by fraud;
    • that there was no evidence or other material to justify the making of the decision; or that
    • that the decision was otherwise contrary to law.

    The reference to an improper exercise of a power includes a reference to taking an irrelevant consideration into account in the exercise of a power; failing to take a relevant consideration into account in the exercise of a power; an exercise of a power for a purpose other than a purpose for which the power is given or in bad faith; an exercise of a personal discretionary power at the direction or behest of another person; an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power or in such a way that the result of the exercise of the power is uncertain; and any other exercise of a power in a way that is abuse of the power.

    If the rules of engagement in the decision-making or disciplinary process do not clearly exclude these rules or principles[1], then the Rules clearly delineate how those processes are intended to work – and you may become exposed to vagaries of competing case law.

    Our strong recommendation is that if the rules surrounding your business’ processes and decisions are likely to be subject to challenge, you should delineate in clear terms how they will apply – control them, so that the disgruntled accused does not derail your processes.

    It the person or body undertaking an investigation is the same person or body making the finding, then spell it out, as was the case with the case of Cynthia Weinstein v Medical Practitioners Board Of Victoria [2008] VSCA 193. If the body hearing the matter is entitled to make its own inquiry, then specifically ensure that you make allowance for that in the rules. If rules of evidence and burdens of proof are not to apply, then say so.

    Regulatory committees are rarely intended to operate “judicially”, by which I mean to assess the competing adversarial submissions of the advocates before it, not looking beyond the submissions made, being bound by rules of proof. If your committee is not intended to be that way, then, once again, you need to say it.

    If your rules are clear about how the process will apply, then you have the best chance of fending off the challenges that are entirely process-based; the question of “bias” must then devolve to whether the decision-making panel had acted in such a way that

    a fair-minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that [the tribunal] might not bring an impartial and unprejudiced mind to the resolution of the question in issue[2]

    and that, would be left as a question of fact, not a question of process and then the decision ought to be upheld, if fair weight is given to all the material before the decision makers.

    Apart from the matters referred to above, core considerations in the application of “natural justice” include:

    • Entitlement to representation for the “accused”;
    • Reference to information or evidence of which the accused might not have prior notice;
    • Assessment of standards of performance or compliance by a third person;
    • Manner by which the “accused” can put their case;
    • Whether “reasons” for a decision must be published[3]

    And whilst Dr Reid may resort to the Magna Carta that No freeman shall be taken or imprisoned ruined or disseised or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgement of his peers or by the law of the land.[4]

    He might find he has submitted to a system and process that adequately provides for him, to be exhausted before the law will interfere with what he has agreed.

    By Mark Love, Legal Director and Accredited Specialist in Business Law.

    [1] And the circumstances are such that the rules of natural justice can be excluded at all.
    [2] Webb v R (1994) 181 CLR 41 at 67 (Deane J)
    [3] Noting that integrity of the decision making process suggests that giving reasons is prudent in many circumstances
    [4] J C Holt, Magna Carta (2nd Ed, Cambridge University Press, 1992) at 461

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  • transport

    Taxi Transport: Cabby Crabby After Shameful Sham

    “Happy Cabby”, a NSW transport company, is very unhappy after it was slapped with a record-breaking fine for sham contracting.

    In Fair Work Ombudsman v Happy Cabby Pty Ltd & Anor [2013] FCCA 397 (26 July 2013) Happy Cabby was fined $286,704.00 for sham contracting in one of the fair work regulator’s harshest crackdowns in its ongoing crusade against businesses which are misclassifying employees (in this case shuttle bus drivers) as independent contractors.

    The transport company was fined $238,920, and its sole director and owner was fined $47,784.00 for underpaying the transport drivers and average of $3,700 per worker.

    One factor in the decision was the vulnerable nature of Happy Cabby’s workforce which generally consists of mature workers, who at the beginning of the relevant period, were aged between 50 and 71 years of age.

    The age of the drivers meant that it may have been more difficult for them to find alternative work, especially in a regional centre such as Newcastle. It also meant that they were to some extent held captive by Happy Cabby.

    Another factor in the high fine was Happy Cabby’s blatant disregard for earlier cautions in relation to similar conduct which had been given to it by the Fair Work Ombudsman (FWO) in January 2011.

    Despite the warning the business kept underpaying the workers and misrepresenting to them that they were contractors.

    In addition, prior to Happy Cabby going to the Federal Court, the classification of the workers as employees had also been confirmed by the Australian Taxation Office and by a decision of the Administrative Appeals Tribunal.

    The judge, coincidentally Judge Driver (no relation!) determined that the high penalties were appropriate because of a history of prior similar conduct and because, in this case, the director and the company had been “put on notice” of their misdeeds on multiple occasions.

    “The Company and Mr Paff could have been in little doubt of the true legal position following the AAT proceedings, and any lingering doubt should have been removed by the Letter of Caution. Their refusal thereafter to change their position was deliberate, based on wilful blindness,” Driver said.

    The court ordered individual penalties against Mr Paff for all of the transport company’s contraventions (under the accessorial liability provision: section 550(1) of the Fair Work Act 2009 (Cth) (‘the FW Act’) saying:

    Mr Paff is the sole director and company secretary of the Company and served as the Company’s controlling hand and mind. Mr Paff was responsible for all operating decisions and has been extensively involved in the events leading to the contraventions….

    Other business personnel who are potentially liability under section 550 (1) of the FW Act include HR managers and other company officers including directors.

    Happy Cabby was also found to have breached the statutory record-keeping and pay slip requirements which lead to additional concerns about worker safety.

    As Judge Driver said “There is a well-established link between fatigue and poor road safety; as a result, there is significant public interest in keeping track of the hours worked by drivers of transport and public vehicles to ensure that the drivers do not undertake excessive shift lengths and are granted appropriate breaks to ensure they are alert and responsive when in the road”.

    Natalie James, the Fair Work Ombudsman, in acknowledging that the case highlighted the serious nature of sham contracting, .said “In cases where we suspect sham contracting is occurring, we look behind the often carefully drafted legal documents to determine what the correct classification for workers is under workplace laws….a business operator cannot automatically convert an employee who is clearly not operating their own business into an independent contractor simply by directing the worker to obtain an Australian Business Number.”

    Happy Cabby shows that employers cannot escape prosecution and hefty penalties simply by shopping around for and relying upon, legal advice that conforms to their desired view of the nature of the engagement.

    “Sham contracting” essentially means misrepresenting as “contractors”, workers who are in fact “employees”. It is against the law: section 357(1) of the FW Act.

    Section 357(1) provides that a person that employs, or proposes to employ, an individual must not represent to the individual that the contract of employment under which the individual is, or would be, employed is a contract for services under which the individual performs, or would perform, work as an independent contractor.

    Happy Cabby, in breach of s 357(1), told its employees they were independent contractors by:

    • requiring each driver to provide an Australian Business Number;
    • requiring each driver to produce invoices in order to receive payment for work performed;
    • not withholding income tax from payments made to the drivers;
    • not making superannuation guarantee payments in relation to the drivers;
    • not providing worker compensation insurance coverage for the drivers;
    • requiring drivers to reimburse the company for costs of public liability and personal accident insurance coverage taken out by the company.

    The Court decided that the doing of those things did not serve to miraculously transform the employees into contractors. Sham contracting is a serious matter because it can lead and does lead to workers being denied their rightful workplace rights and entitlements.

    As has often been observed if it looks like a duck, walks like a duck and quacks like a duck regardless of what you call it, it is in all likelihood a duck.

    Contact our Specialist Employment & Workplace Relations Team for more information.

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  • craft ACT sponsorship

    Craft ACT and Bradley Allen Love win Creative Partnership award

    Craft ACT and Bradley Allen Love Lawyers have won the 2013 Creative Partnerships SME Award for New South Wales and the Australian Capital Territory. The award recognises innovative partnerships between the arts, businesses and donors, with state-level winners representing their region at the national awards in November.

    Bradley Allen Love has supported Craft ACT with a range of pro bono legal services in relation to the Centenary of Canberra celebrations, advising on a variety of contracts and tender submissions, while the local organisation has reciprocated with promotional support.

    The partnership between Bradley Allen Love Lawyers and Craft ACT was born out of a shared passion for the arts and the alignment of key principles and objectives of both organisations to support the arts, enrich the local community and strengthen relationships into the future.

    Craft ACT and Bradley Allen Love will represent the ACT/NSW region at the 2013 Creative Partnerships Australia national awards, which will be held in Canberra on November 18.

    CEO of Creative Partnerships Australia, Fiona Menzies, was delighted with the quality of nominations.

    We’ve been very impressed with the high standard of entries and the range of initiatives nominated this year. The Awards continue to demonstrate that innovative and creative partnerships between the cultural and private sectors are thriving across the country, reaffirming the value these partnerships bring to the organisations and the broader community.

    Bradley Allen Love is proud to actively support a range of community organisations and endeavours. For more information see our community page.

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  • fair

    A Hole in One - Fair Ways to Fire

    Unlike golf, the employment relationship is not a game or a sport – but like golf, the employment relationship is fraught with hazards which need to be effectively negotiated, and which have a number of “additional rules of play” to remain fair.

    In the employment relationship, one of the primary hazards occurs when employers and employees are contemplating bringing the employment relationship to an end.

    Ending an employment relationship (or indeed ending any relationship) can, just like negotiating any trap in golf, be very problematic.

    If an employer wants to bring an employment relationship to an end with minimum financial loss and damage to workplace morale, they need to play fair with the employee at risk of losing their employment.

    What does playing fair in the employment arena look like? Certainly not like clubbing the hapless employee with a three-iron.

    In Australia, the rules of the employment end-game for small business are found in a legislative instrument called the Small Business Fair Dismissal Code (the Code).

    The Code provides that small business employers (that is any business with fewer than 15 employees) may fairly dismiss an employee without notice or warning (that is, summarily dismiss an employee) when the employer has reasonable grounds to believe that the employee was guilty of serious misconduct.

    Serious misconduct is defined in the Fair Work Regulations 2009 (Cth) at Regulation 1.07. It includes both (a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment; and (b) conduct that causes serious and imminent risk to: (i) the health or safety of a person; or (ii) the reputation, viability or profitability of the employer’s business.

    Serious misconduct includes the employee, in the course of the employee’s employment, engaging in theft, fraud, or assault, being intoxicated at work, refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

    However, such behaviour does not count for summary dismissal purposes if the employee is able to show that, in the circumstances, the conduct engaged in was not conduct that made employment during the period of notice, unreasonable.

    Note that an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.

    Where an employee is not summarily dismissed because of serious misconduct, a small business employer must give the employee a valid reason, based on their capacity to do the job, or their performance or conduct on the job, if they are at risk of being dismissed.

    The employee must be warned verbally (or preferably in writing), that they risk being dismissed if there is no improvement in their work performance or behaviour.

    In addition, the employer must give the employee an opportunity to respond to the warning and a reasonable chance to rectify the problem, having regard to the employee’s response.

    Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

    Where an employee is at risk of being dismissed, the employee can have another person present to assist them in discussions. However, the other person cannot be a lawyer acting in a professional capacity.

    If an employee is dismissed, the employee may (with certain exceptions) make an unfair dismissal application to the Fair Work Commission.

    Should this happen the small business employer will be required to provide evidence to the Commission that they have complied with the Code.

    This evidence may include proof that a warning has been given (except in cases of summary dismissal) to the employee, a completed Code checklist, copies of written warning(s), a statement of termination, and signed witness statements.

    So long as the employer has properly followed the Code, the dismissal will be deemed fair.

    Employees who have been dismissed because of a business downturn or because their job is no longer needed cannot make an unfair dismissal application. However, such a “redundancy” needs to be genuine – not just a strategy the employer is using to remove the employee in question.

    If an employer wishes to fairly end the employment relationship because of an employees’ unsatisfactory conduct, performance or capacity to do the job, they should consider taking the following six steps:

    The 3 Tees and the 3 Rs

    1. Tell– warn the employee verbally or in writing that they are not doing the job properly and that they must improve their conduct/performance or risk being terminated
    2. Time – provide the employee with a reasonable amount of time to lift their game
    3. Train– provide the employee with the training and opportunity to develop their skills and knowledge
    4. Reflect– ask yourself if the employee who was given adequate time and training was able to subsequently improve his or her work performance, conduct, or capacity
    5. Respond – before dismissing the employee, tell them the reason for the impending dismissal and give him or her a chance to respond
    6. Records – keep records of warnings, discussions, training, etc geared towards improving the employee’s conduct, performance or capacity.

    If you play fair, chances are you’re more likely to escape the hazards and pitfalls of the employment relationship, and hit a hole in one – that is, to either safely lose a problem employee or, better still, turn a problem employee into a success story and an asset to your business. Remember it is more cost-effective to retain and retrain existing workers than to recruit new ones.

    Contact our Specialist Employment & Workplace Relations Team for more information.

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  • the art of partnerships

    The art of partnerships

    In September 2012, two of Canberra’s prominent law firms, Bradley Allen Lawyers and Williams Love & Nicol, merged to form a practice focused on commercial law. Bradley Allen Love Lawyers now has a comprehensive suite of specialist lawyers in the fields of employment and industrial law, business law, commercial property, planning law, local government, environmental law, administrative law, estate planning and litigation. The firm takes pride in its talented and innovative lawyers who are capable working as an extension of their clients’ businesses, to go beyond the traditional legal role of reactive adviser. The firm currently operates in two separate locations whilst it searches for new premises to accommodate not only their expanded workforce, but also their ever-growing collection of contemporary art. Clients visiting the law firm’s premises in Canberra House are welcomed into the attractive foyer decorated with original paintings, prints and handcrafted furniture, many of which are created by local and emerging artists. This prominent display is symbolic of the engagement and support of the Canberra community espoused by Bradley Allen Love Lawyers.

    Keith Bradley AM, Director of Estate Planning, explained that the collection of art started many years ago with Bill McCarthy, Special Counsel in Litigation and Personal Injury. Bill is well-known to artists and arts organizations in Canberra through his pro-bono work and appointments to the Board of many local arts organisations, including ANCA, Canberra Youth Music, Megalo and past organisations of Studio One and MUSE. He also assists local artists in his capacity as pro bono lawyer for the Arts Law Centre of Australia. Through this community interaction Bill has gained considerable insight into how arts organizations and artists operate, what their legal and financial requirements are and how to ensure responsible management without stifling creativity. Bill is highly sympathetic to the financial constraints imposed on many artists and willingly delivers sage advice. In return, Bill is constantly attuned to the local art scene and over the years has used his eye for art to collect pieces he loves to have around him in the office, “According to current psychological profiling, artists tend to be imaginative, emotionally sensitive, open to new ideas and experiences, unconventional and perceptive. We know that support for the arts in its varied forms – authors, visual and performing artists and craftspeople – that their primary purpose in life is the creation of art; that is, passion, rather than money, drives most artists”.

    Bill’s enthusiasm encouraged Keith to begin acquiring contemporary art. Together they have built an impressive collection by both established and emerging art and craft practitioners that now adorn the walls of Bradley Allen Love Lawyers, from well-known names like John Coburn, Phillip Wolfhagen and David Rankin, to up-and coming artists such as Carol Sullivan and Geoff Farquhar-Still. Keith is quick to point out that they do not collect for investment purposes – they buy purely in response to a real connection with the work itself. Bill agrees, “Art should not be seen as an investment, rather it adds a certain intangible aura to our lives. Any rise in value should be seen as a bonus.”

    As testament to this Keith and Bill both support the annual ANU School of Art Graduate Exhibition by regularly attending the Patrons Preview to purchase work by graduating students. Keith is particularly interested in photography and owns several early works from the ‘Vanity Feminine’ series by Majella Brown, and the apt “Two High Shelving” by Madeleine Donovan hangs above his desk.

    Another work that Keith loves to look at each day are two small dioramas discretely nestled on his bookshelf amongst the law tomes. The first diorama has a tiny superman emerging from a red phone box in the middle of a tropical beach; whilst the other scene involves sunbathers, windsurfers and palms trees swaying in the breeze. Keith is amused by the whimsical actions at play within these tiny works of art, allowing his mind to relax and perhaps find creative solutions for the work-related legal problems at hand.

    Their eclectic collection inspires not only clients but also staff, who are able to choose pieces to adorn their walls or alternatively to bring in their own artworks for their office. Providing an aesthetically pleasing and intellectually engaging environment for over 80 staff enables a relaxed, creative and productive workplace because, as Keith points out, directors and staff often spend more time in the office than they do in their own homes. Keith believes that the warmth and humanity emanating from original works of art is reflected in the aspirations of the firm.

    Bradley Allen Love would like to further their relationships with Canberra artists in the future through targeted events that provide artists with pro bono legal advice on important issues that are often overlooked, such as making a will, consignment contracts, small business issues and intellectual property advice.

    Bradley Allen Love Lawyers are already strong supporters of the Canberra community – as Official Legal Services Provider and Sponsor of the Brumbies; as a supporter of Clubs ACT; by running a Small Business Legal Advice Clinic in conjunction with the University of Canberra and through the support of many other organisations such as SIDS, Movember and ACT Diabetes to name a few. Through their involvement with the ANU School of Art and their ongoing relationship with Craft ACT, Bradley Allen Love Lawyers will continue to express their passion for the arts not only through philanthropy and art collection, but by providing the artistic community with much-needed strong, sound legal advice.

    Julie Ryder
    Julie Ryder is a freelance textile artist and designer based in Canberra.

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  • workers compensation

    Can I Terminate an Employee Who is on Workers' Compensation?

    Termination is stressful for all parties – so if you have to do it, make sure you get it right!

    Having a worker away from your workplace on workers compensation is a very difficult situation for both the employer and the worker. The employer needs the work done and the worker, in all probability feels guilty because they cannot work.

    Imagine you have a loyal long-term senior hairdresser who was injured on the job when he tripped over a client’s handbag and fractured his arm. He is now on long-term workers compensation and has had multiple surgeries to correct what was a very complex break, involving nerve injury, to his dominant arm.

    Then, your employee tells you that his doctor has determined that he will not ever be able to return to his pre-injury duties as a hairdresser because, due to the arm injury, he has lost the fine motor skills he needs to cut hair.

    You require a competent senior hairdresser who is fit enough to be his feet all day and to cut and style well – your business depends on it and the employee in question was very popular with clients .

    But your business just isn’t big enough to find your employee an alternative position – your husband works on reception and he also does all the business administration, including pays.

    Sound familiar? You are caught between a rock and a hard place – what should you do?

    In certain circumstances it may be possible to lawfully terminate an employee who is on long term workers compensation provided you employer adhere to several key obligations – and crucially, provided you observe the “protected period.”

    The “Protected Period” and Vocational Rehabilitation

    By law, an employer is required to keep a worker’s position open for six months from the date he or she becomes entitled to weekly compensation (‘the protected period’). Failure to do so may make an employer liable for a maximum penalty of $5,500.00.

    Employers are also required to rehabilitate injured workers with the aim of keeping the worker employable (‘the vocational rehabilitation requirement’).

    An employer is at risk of penalties of up to $27,500.00 for non-compliance. You and your insurer should discuss these requirements where an employee is injured at work.

    After you have observed the protected periods and the requirement for a rehabilitation program, you may decide that it is in the best interest of the business to terminate the worker’s employment.

    If you chose to do that, the employee might then decide to file an unfair dismissal or general protections (dismissal) application with the Fair Work Commission (‘the FWC’).

    This can be a costly exercise for both the employee and the employer.

    It may be possible to avoid such outcomes by consulting the worker and negotiating a separation that suits all parties, and allows relationships and reputations to remain intact.

    Unfair Dismissal

    Under the Fair Work Act 2009 (Cth) (‘the FW Act’) an employee whose employment has been terminated, including an employee on long term workers compensation, may apply to the FWC for remedy.

    Some employees are not covered by these provisions, for example, workers who earn above the unfair dismissal threshold of $118,000 per annum. There are also additional provisions relating to small businesses and the proper processes small businesses need to engage in so as to dismiss an employee.

    A termination will be judged to have been an unfair dismissal if it was “harsh, unjust or unreasonable” and not a case of genuine redundancy.

    In determining whether or not a dismissal has been unfair, there are numerous factors the FWC takes into account when assessing the harshness of any dismissal.

    Summary

    Every situation is different and it is not possible to provide comprehensive termination advice without a detailed factual understanding of a given case.

    Therefore, this information is necessarily general rather than specific.

    Termination is tough for both employer and employee, particularly where they have become close friends, and it pays to make any proposed termination as painless as possible for both parties.

    If you require assistance in doing this please contact us so that you can receive advice tailored to your unique circumstances.

    Contact our Specialist Employment & Workplace Relations Team for more information.

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  • hours

    Can casual employees work regular and systematic hours?

    Often the operational requirements of a business including the size of a business and the uncertainty of future income necessitate the hiring of casual employees. The benefit of having a casual workforce is fundamentally the flexibility of being able to hire an employee for as long or for as short a period as there is work available. However in some circumstances, casual employees may find themselves working the same hours week to week over an extended period of time, maybe even years. This means that a casual employee may appear to be a committed, long term employee more akin to a permanent employee than a casual.

    A recent decision made by the Full Bench of the Fair Work Commission has determined that a casual who works regular and systematic hours will still be classified and treated as a casual employee so long as that employee is engaged as a casual pursuant to the terms of a Modern Award or Enterprise Agreement that covers them. The test will hold true regardless of whether the employee would be assessed as a casual under the general common law meaning of the word or not.

    The consequences of failing to identify the classification of an employee as either a permanent or casual employee can have significant consequences. The most important factor is whether an employee is entitled to the casual loading of 25% or whether an employee is entitled to the benefits of permanent employment such as annual leave, personal/carer’s leave, notice of termination and redundancy benefits. A decision that an employee has been incorrectly assessed by an employer as a casual could involve payment to the employee of penalties and back pay of annual and other personal/sick leave entitlements.

    The general common law position is that a feature of casual employment is its temporary or irregular nature, “the employee is not obliged to accept an offer to work a particular shift; [and]the employee’s employment technically commences at the beginning of a particular shift and ceases at the end of that shift.[1] In effect, the casual employee is paid the 25% loading to compensate them for the intermittent nature of their employment.

    The Telum Decision[2] handed down on 22 April 2012 sets out the circumstances in which a casual employee who works:

    1. full-time hours;
    2. on a regular and systematic basis;
    3. with regular and consistent start and finish times; and
    4. who attends work at the required time without regular direction to do so;

    will nevertheless still be classified as a casual employee for the purposes of the National Employment Standards.

    In order to satisfy the test set out in the decision, an employer must engage the casual employee in accordance with the relevant provisions of a Modern Award or Enterprise Agreement that covers the employee. The arrangement of casual employment can vary between Modern Awards but generally require an employer to:

    1. inform the employee (usually in writing) at the time of first engaging the casual that he or she is a “casual”; and
    2. pay the casual the 25% loading in lieu of entitlements.

    It is essential for employers to be certain of whether a Modern Award, if any covers their employees. Not only do Modern Awards provide for minimum rates of pay but a Modern Awards may also have specific provisions regarding casual employees that an employer must comply with. For example, a Modern Award may set a maximum number of hours that a casual employee can be rostered to work in a week, or require an employer to offer the casual permanent employment after six months.

    The Telum Decision goes some way to bringing certainty to those employers and employees who are covered by a Modern Award or Enterprise Agreement. For those employees however, who are not covered by an Award or Enterprise Agreement, the case emphasizes the importance for employers to be mindful of casual employees who might be considered to be permanent employees because of the regular nature of their work.

    Contact our Specialist Employment & Workplace Relations Team for more information.

    [1] Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Department of Justice and Attorney General (Corrective Services NSW) [2010] NSWIRComm 148 at [25].
    [2] Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2434 (the Telum Decision)

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  • regulators

    Australian Charities and Not-for-profit Commission, the New National Regulators

    There are approximately 600,000 not-for-profit organisations in Australia. A not-for-profit organisation is one which does not operate for the profit, personal gain or other benefit of particular people such as its members or those who run the organisation. Not for profits(‘NFP’) can make a profit, but that profit must be applied for the organisations purpose – i.e. the furtherance of the objects of the organisation without any portion being distributed directly or indirectly to members of the organisation except as bona fide compensation for services rendered or expenses incurred on behalf of the organisation. A need has been identified for regulators to watch over the process.

    On 3 December 2013 the new national regulators, the Australian Charities and Not-for-profits Commission (‘ACNC’) commenced operations. As the NFP sector receives a range of funding, including donations from members of the public and tax concessions, grants and other support from Australian Governments, it was considered important to have a national regulatory system that promotes good governance, accountability and transparency for NFP entities so as to maintain, protect and enhance public trust and confidence in the NFP sector.

    At present the ACNC will only focus on charities and therefore there are no implications for clubs at the current time.

    The ACNC is responsible for ensuring all charities comply with their obligations under the ACNC Act including enforcing governance and external conduct standards.

    The new regulators are responsible for determining charity status for all federal tax purposes.

    The ATO will however continue to be responsible for administering tax concessions relevant to charities, including income tax exemptions; FBT rebate or exemptions; GST charity concessions and deductible gift recipient (DGR) status.

    Registration with the ACNC is voluntary but is now a prerequisite for charities to access charity tax concessions. Registration may also be a prerequisite for other exemptions, benefits and concessions.

    You will not need to re-register your organisation if it was endorsed by the ATO as a charity to access tax concessions immediately before 3 December 2012 as your organisation will have automatically been registered with the ACNC. Religious organisations which previously self-assessed as ‘religious institutions’ for tax exemption purposes are not automatically registered with the ACNC.

    The services offered by the ACNC includes charity registration, a searchable charity register listing registered Australian charities, education and guidance materials to help charities understand and meet their obligations.

    The Register will be maintained electronically and includes specified information about each registered and each formerly registered organisation. The purpose of the register is to provide a single source of easily accessible public information on the NFP sector covered by the ACNC Act.

    The Register builds on information that is currently permitted to be included on the register and includes the requirement to include information such as countries (other than Australia) in which the registered entity operates and other names by which the registered entity may be publicly known.

    Once registered, an organisation will be required to keep written financial records explaining its transactions, financial position and performance. The records must enable true and fair financial statements to be prepared and to be audited. Records must also be kept that correctly record operations and enable assessment activity by the ACNC to be carried out, which assessment will include entitlement to registration as a type of entity, compliance with the ACNC Act and assessment by the ATO for compliance with taxation laws. These records must be maintained for 7 years.

    Reporting Obligations

    Each registered organisation must provide the ACNC with an annual information statement. Medium and large organisations must also provide a financial report for the financial year together with any auditor’s report or reviewer’s report required under the ACNC Act. Exemptions for annual financial reports apply for ‘basic religious charities’ (as defined); however, these organisations mus