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25.01.2022 What the new BUILDING GRANT PROVIDES: Your Build Contract must be entered between 4th June 31st Dec 2020 Price cap at $750,000 for a House and Land packag...e, off-the-plan or build (where you've already secured the land). For renovations the price of works must be between $150,000-$750,000 (with the dwelling value not more than $1.5m) Income cap Singles income must not exceed $125,000 and for couples $200,000 (based on tax return 2018-2019 or later) Eligibility 18 years or older and Australian citizen and for use on your principal place of residence (not an investment) Time frame Construction commencement within 3 months of contract date Tax Home Builder grant will not be taxed First Home Owner Grant can be used to complement the new Home Builder grant Investment property not applicable for use on an investment property Payments distributed via State (Territory) Revenue Office

24.01.2022 How current is your will? Do you actually have one? The recent corona virus outbreak has led to economic and health tidal waves throughout Australia and the wor...ld. It has affected every Australian and has created a huge demand for people to make or update their legal will. With the heightened health risks presented by coron avirus, now is a good time to review your legal will. Or if you don't have one, it's a prime opportunity to get it sorted. So, before creating or reviewing your legal will, what do you need to consider? Who would look after your children if you were to die? If you have minor children, under the age of 18, it's important to nominate who would look after them if you were to die. When deciding on their guardian, be sure to consider whether they will also be your executor, which would empower them to access and deal with your children's trust accounts after you die. It's recommended to appoint only one person as a legal guardian, as multiple guardians needing to make unified decisions about your children can often lead to difficulties. Do you need to set up a trust for minors in your will? Trusts can be created and included in your legal will to protect the inheritance of a child until they reach a certain age. You might prefer your children to wait until they're 21 or 25 years old before they inherit. Until this time, your appointed executor and trustee will have the power to access the trust for your child's education, medical needs and general upbringing. We can draft your will on line or by telephone. Call on 1300 913 284

23.01.2022 AMP ordered by the Federal Court to pay $5.175M penalty. The Federal Court of Australia on Thursday has ordered financial services giant AMP to pay over $5 mill...ion after finding that AMP failed to prevent insurance churn by its financial planners. Earlier today, the Federal Court ordered AMP to pay a $5.175 million penalty after the court found AMP failed to take reasonable steps to ensure its financial planners complied with the best interests duty and related obligations under the Corporations Act. ASIC had alleged that a number of AMP’s financial planners engaged in rewriting conduct, which it described as providing advice that results in the cancellation of the client’s existing insurance policies and the taking out of similar replacement policies by way of a new application rather than through a transfer. By cancelling insurance policies and advising clients to submit new applications, clients were exposed to a number of significant risks and the planners received higher commissions than they would have by simply transferring the policies, ASIC said in a statement. The court noted that the rewriting conduct by one of AMP’s financial planners, Rommel Panganiban, was morally indefensible. The court accepted the argument put forward by the regulator that, having become aware of Mr Panganiban’s conduct, it was necessary for AMP to ascertain the extent of breaches by other planners to meet its legal obligations, ASIC said. AMP failed to do so, it continued, with the court finding that the lack of an effective response is an illustration of how badly things had gone wrong within the organisation. In today’s ruling, the Federal Court identified a total of six contraventions of section 961L of the Corporations Act and thus imposed a penalty of $5.175 million, and also indicated that it will make orders requiring AMP to undertake a review and remediation program to ensure financial planning clients who were subject to rewriting conduct are detected and properly remediated.

22.01.2022 IT'S HARD TO WRITE A WILL WHEN YOU ARE DEAD! "Why do I need a Will?" you may ask. The reason is simple. If you die without one, the government not you decid...es who shares in your estate and who'll be responsible for managing it. But don't assume that just because you have a Will everything is taken care of forever. You should review it regularly. Again, the reason is simple: circumstances change. Children grow up, your original executor moves overseas. If you're lucky, you win the lottery and now want to leave something to your favourite charity. The point is, your Will should always reflect your current circumstances. In our experience, people often tend to think about Wills and powers of attorney only when they are about to go to hospital (or worse) or take a big trip or an emergency like Covid-19 strikes. That's not the way to do it. It leads to rushed, poorly considered documents. 1300 913284

20.01.2022 The former operators of two Hello Juice outlets in Victoria were penalised $276,929 by the Federal Circuit Court for deliberately exploiting 27 employees. Sky...pic Group Pty Ltd and Skypac Group Pty Ltd, who operated the Hello Juice outlets until April 2019 and March 2020 respectively, were penalised $161,988.75 and $80,325 respectively. Hua Gong, who was the general manager of both stores, was penalised an $34,616. The underpayments were uncovered in an auditing activity, in which the Fair Work Ombudsman found that employees had been underpaid of the ordinary hourly rates, casual loadings and penalty rates for weekend and public holiday work they were entitled to under the Fast Food Industry Award 2010. The 27 employees were underpaid a total of $38,458 over various periods in 2017, though they have been back-paid. Gong and Skypac Group Pty Ltd also breached laws relating to cashback arrangements on two separate occasions by requesting a worker aged in her 30s to pay amounts totalling $4,42.19 to cover part of a rectification payment and a tax refund payment made to her ($1,300 of which was paid). Gong and both companies were found to have breached laws relating to payslips and record-keeping. Skypic Group and Gong also failed to comply with a Notice to Produce records or documents, and Skypac Group and Gong provided inspectors with false or misleading records.

19.01.2022 Firmer stance against unfair contract terms for small business: Assistant Treasurer Michael Sukkar has announced that Commonwealth and state and territory gover...nments have agreed to make unfair contract terms unlawful and give courts the power to impose a civil penalty when a breach occurs. This nationwide agreement aims to strengthen the protection of small businesses against unfair contract terms and impose heavier penalties against the big businesses who are practising this now unlawful act. The move has earned the praise of Australian Small Business and Family Enterprise Ombudsman Kate Carnell who said, The government has clearly listened to the concerns my office has long held in relation to the impact of unfair contract terms imposed on small businesses by big businesses. Importantly these reforms will ensure unfair contract terms are illegal and the courts will have the power to levy penalties for breaches. The ASBFEO also welcomed the expansion of the definition of small business to under $10 million turnover or up to 100 employees, a change that will bring 99 per cent of Australian businesses within the scope of the unfair contract protection.

18.01.2022 Because hazardous chemicals are present in almost every workplace and are often commonly used, people sometimes overlook the dangers these substances pose. But ...no one ever should. As with any other health and safety hazard, you have a strict legal duty to protect your workers and others from harmful exposure to any chemical. This means implementing a system to correctly identify, label, store and handle any potentially dangerous substance and ensure that your staff are properly trained in these procedures, especially in the event of a spill or an emergency. Whatever industry you are in. If you fail to do this, the consequences can be catastrophic. A few months ago, the Royal Hotel in Queanbeyan was ordered to pay $59,000 in penalties and costs after its kitchen hand inadvertently stood in an odourless and colourless alkaline cleaner thinking it was water. He suffered chemical burns to both feet, requiring three skin grafts and a month of hospitalisation. This accident would have been avoided if the employer took the correct action. Make sure you take every step necessary to avoid a similar incident occurring in your organisation to protect your workers and your business from prosecution. See more

18.01.2022 Why you must take care when retrenching an employee who is on parental leave: Under section 84 of the Fair Work Act 2009 (Cth) (FW Act), an employee on parental leave has the right to return to their pre-parental leave position. If that position no longer exists, they are entitled to an available position for which they are qualified and suited, nearest in status and pay to the pre-parental leave position. In Heraud v Roy Morgan Research Ltd (2016), an employee on parental le...ave was due to return from parental leave on 2 July 2014. The Court found that, as a result of the employee’s workplace right to return to her pre-parental leave position, the employer’s decision to make that position redundant as part of an organisational restructure on or after 31 August 2014 was brought forwards to 27 June 2014. The Court also found that the employer backed down from its initial willingness to consider redeployment options because the employee had exercised her workplace right to request consideration of flexible work arrangements in any role to which she might be redeployed. The Court found the request was also a factor in the decision to bring the date of the redundancy forwards. The Court declared that the employer had subjected the employee to adverse action, by retrenching her and refusing to redeploy her, because of the exercising of her workplace rights to return to her pre-parental leave position or to request a flexible work arrangement in any role to which she might be redeployed. Breaches of the Fair Work Act with regard to adverse action can result in damages payouts of many hundreds of thousands of dollars. They are not capped like unfair dismissal claims.

16.01.2022 Worker sacked over positive drug test wins reinstatement after FWC slams illogical no-tolerance policy: A Sydney Trains customer service attendant sacked afte...r failing a random drug test has won reinstatement in an extraordinary case that has exposed an apparent logical inconsistency in Transport NSW’s zero-tolerance drug policy. The 64-year-old Sydney Trains worker was dismissed last year after testing positive for cannabis following a random urine test in late-2018, but Fair Work Commission (FWC) deputy president PJ Sams has overturned the sacking on grounds it was harsh and unreasonable. The case, details of which were published to the FWC’s website on Monday, has given rise to questions about whether the drugs and alcohol policies enforced by Sydney Trains are fair, or even able to meet their stated intentions. Sams branded Sydney Trains’ evidence as meaningless, misleading and lack[ing] logic, ordering it to reinstate the worker within 21 days with remuneration equal to 50% of his lost pay. Asked to comment, Sydney Trains declined, saying the matter was still subject to legal proceedings, suggesting it is pursuing an appeal that would be considered by the full bench of the FWC. Puffing the magic dragon The basic facts of the sacking were not disputed. The worker admitted to smoking a joint with an old friend the day before his shift, but maintained throughout the investigation he was not impaired by the time his duties started at 6.00am the next day. An hour after starting his shift, the attendant was called in for a random drug test, conducted periodically for Sydney Trains workers under the organisation’s drug policy, which stipulates zero tolerance for prohibited drugs. Following the test, the worker continued his duties for a further two days before asked to explain why he tested 78 ug/L for THCCOOH above the 15 ug/L cut off stipulated in the drug policy. Once Sydney Trains started its investigation, the worker expressed remorse, claiming the decision was a mistake, and there was no evidence he was a habitual cannabis user, even providing a subsequent test, signed by his doctor, stating he tested negative for cannabis several days after the first probe. The worker, aided by the Australian Workers Union, also submitted his record as an employee was previously unblemished, asking for an alternative punishment to sacking. There were also additional concerns the worker, who supports a family and is required to make mortgage repayments, would have difficulty finding another job due to his age. Zero tolerance? But Sydney Trains argued during a FWC hearing in Sydney last December that the attendant engaged in risk-taking behaviour that placed himself and our customers at an increased and unnecessary risk of harm, stressing its zero-tolerance approach to prohibited drugs required dismissal. The employer argued the conduct was reckless and undermined its trust in the worker, saying they could not claim human error because the worker did not smoke the joint by accident. Responding to a counter-argument that there was no evidence the worker was impaired on the job, Sydney Trains officials said it was not actually relevant whether the worker was high, or that no safety incidents occurred on the day he tested positive. Instead, they said, the relevant factor was the breach of its drug policy, and that by attending work with prohibited drugs in his system the attendant had taken a gamble that he would not be tested, putting Sydney Trains’ reputation at risk. Meaningless, misleading and lack[ing] logic However, deputy president Sams questioned the logical veracity of Sydney Trains’ drug policy, noting initial urine screenings only record a positive THC result over 50 ug/L, and thus an employee who tested over the cut off but under 50 ug/L could walk off scot-free. While Sydney Trains’ Drugs and Alcohol Policy is said to be underpinned by a ‘zero tolerance’ approach to drugs and alcohol in the workplace, the reality is that there is no such thing, Sams said. Further, Sams said Sydney Trains did take into account mitigating factors such as the worker’s age and financial circumstance, which are inconsistent with zero tolerance towards prohibited drugs. Sydney Trains admitted during the hearing that it took the attendant’s circumstances into account, but still decided to sack the worker for the positive drug test result. The evidence makes it abundantly clear that such considerations can never sway the decision-maker from a decision to dismiss, Sams said. This evidence not only demonstrates internal inconsistencies but Sydney Trains’ submissions are meaningless, misleading and lack logic.

16.01.2022 PARENTING arrangements may be effected by the virus, the impending lockdown, and the closure of schools. Right now, we do not have details of what a lockdown wi...ll mean for all of us. The best advice we can give at this stage is that you should ensure that you do your best to follow court orders, and if you cannot follow the orders due to circumstances, you need to document and provide evidence for those circumstances. In the event that you want to change arrangements in the court orders then you should try and communicate with the other party. If you cannot communicate with them, try to communicate through a third party or through your lawyer. The Family Court and Federal Circuit Court schedules are being updated almost on a daily basis to adjust for the corona-virus. The Chief Justice of both courts has indicated that he will fight to keep the courts open and functioning during these uncertain times. If your matter is being listed in the next 6 months, you may want to confirm that it is still proceeding when it gets closer to your court date. We will have lawyers at our office every day even though most staff are working from home. If you have any questions and you need an answer please feel free to telephone 1300 913 284.

16.01.2022 HUSBAND FINED $54,000 In a recent family law matter (Lescosky & Durante) The husband was ordered to pay to his wife's solicitors the sum of $30,000 as well as n...ot deal with any assets of the relationship outside the normal course of business and to provide 7 days notice to his wife's solicitors of any proposal to deal with any asset over $1000 in value. He later bought $180,000 of Crypto Currency in 18 different transactions and failed to notify the solicitors and failed to pay them the $30,000. The Family Court Judge fined him $3,000 for each breach of the Court Orders. He appealed the decision and the Full Court of the Family Court dismissed his appeal. He then also had to pay the wife's costs of the appeal. Family Court orders are to be taken very seriously.

12.01.2022 MCDONALDS IN STRIFE: A McDonald's Queensland franchisee that suggested it could stop staff from using the toilet or drinking water outside scheduled breaks has ...been ordered to pay penalties totalling $82,000 in what sends a clear message. The Federal Court has ruled Tantex Holdings, which runs six Queensland restaurants to pay the Retail and Fast Food Workers Union $72,000 and former Brisbane crew member Chiara Staines $10,000. However, this matter has only just begun. While the penalty may seem like a drop in the ocean for a global fast-food giant, today’s judgement in the Federal Court sends a clear message to McDonald's that fundamental workers’ rights are not up for negotiation. According to court documents, a general manager of a McDonald's franchisee, Tantex Holdings, had made a Facebook post telling a group of crew members the company was not obliged to let them go to the toilet outside scheduled breaks. "What this means is that if we implement this over our current situation, on your shift this 10 minute break would be the only time you would ever be permitted to have a drink or go to the toilet, the post wrote. Justice John Logan said the threat made by Mr Crenicean was a sinister one. There is a quality of cruelty to workers about it,’’ he said. Justice Logan found workers were entitled to use the bathroom when reasonable outside of their paid 10-minute breaks. After the retail union took a case to the Federal Court, in September Justice Logan ruled that Tantex was guilty of several contraventions of the Fair Work Act. Justice Logan found Tantex had failed to provide Ms Staines with 10-minute paid drink breaks. He also found the franchisee had recklessly made false representations about the rights of employees at its McDonald's Central Station restaurant in Ann St, Brisbane. The outrageous coercion of children by this employer which continues to employ hundreds of children and young workers was absolutely unlawful and it must now pay the penalties imposed on it.

12.01.2022 Alan Jones does it again. We recently reported on the Wagner family of Toowoomba who were the recipients of a damages awards in excess of $3 million after a cou...rt found that Nine Network Australia and their journalist Nicholas Cater falsely reported that the family was responsible for floods that led to the destruction of a town and the deaths of 12 people. But last year, Alan Jones and his broadcasters were similarly found guilty of defaming the family after the radio shock-jock repeatedly made "vicious and spiteful" comments about them on-air. The court ruled in favour of the Wagners and ordered Jones and two radio stations to pay more than $3 million dollars in damages at that time. Wilfully blind to the truth During the Supreme Court hearing, Justice Peter Flanagan found that Alan Jones was "wilfully blind to the truth," engaged in "unjustifiable conduct" and "was motivated by a desire to injure" the reputations of the Wagner brothers when he made false statements about them. Allegations made by Alan Jones, and found to be defamatory, included that the family was responsible for damage caused by the Grantham floods in 2011, including the loss of more than 50 homes and the deaths of 12 people, two of them children. In the aftermath of the floods, some media reports and commentary centred on the collapse of a quarry wall (the quarry is privately owned by the Wagner family), suggesting it played a significant role in the floods. But a commission of inquiry by Walter Sofronoff QC in 2015 cleared the family of any wrongdoing. The family went on to sue some of these media outlets for defamation. What is defamation? Defamation, as its name suggests, is to 'de-fame' or sully the reputation of someone. Many people think that defamation suits can only be resolved through civil liability suits, but this is not the case. In New South Wales, the Defamation Act 2005 (which is much the same as it is in all other states and territories in Australia) also makes a provision for criminal culpability, depending on the nature and seriousness of the act of defamation. Civil defamation The Wagner family's case against Alan Jones and the two radio broadcasters was a civil defamation case and these are presided over and deliberated by a single judge. Typically, civil defamation relies on three components to be established: Firstly, that information was published (including orally communicated) to at least one other person essentially this means that the defamatory statement was put into the 'public domain'. Secondly, the person allegedly defamed is clearly identifiable (directly or indirectly) by the information, and thirdly, that the information was defamatory in nature that is, it has the power to adversely affect or did affect a person's reputation. There are a number of defences to civil defamation including, but not limited to: * Truth being able to prove facts which support the truth * Expression of honest opinion supported by facts * Public interest in the matter * Innocence not being aware the material / information was defamatory * The information was already public record, for example, a criminal history. However, in ruling for the plaintiffs in the Wagner family's case against Alan Jones and radio broadcasters 2GB and 4BC, Judge Flanagan said during the hearing he had "not encountered before" a defamation case in which the defendants had repeated defamatory statements but did not seek to prove their truth through expert evidence. In civil cases, where defamation is found to have taken place, plaintiffs are awarded damages. Judge Flannagan noted that ... "prior to the publication of the defamatory broadcasts, each plaintiff enjoyed an excellent reputation for honesty and integrity, both in business and community circles.... "The publication of the defamatory broadcasts was very extensive. The defamatory broadcasts have caused each of the plaintiffs to suffer profound personal hurt and harm to their reputations." He awarded damages of more than $3 million to the family. Alan Jones and 2GB will be required to pay the Wagner family more than $3.3 million. In addition, Brisbane radio station 4BC and Jones were also ordered to pay the family more than $440,000. Article by Sonia Hickey

11.01.2022 High Court clarifies NES paid personal/carer's leave The entitlement to paid personal/carer's leave is calculated under s 96(1) of the Fair Work Act 2009 (Cth)... (FW Act). This provides that for each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer's leave. In an appeal decision handed down on 13 August 2020 (Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2020) HCA 29), the High Court has ruled that a ‘day’ in ‘10 days’ in s 96(1) refers to a ‘notional day’, consisting of one tenth of the equivalent of an employee's ordinary hours of work in a two week period. This decision provides guidance on the FW Act obligations of an employer with respect to accrual, payment and taking of paid personal/carer's leave Accrual: Over a year of service an employee accrues a number of hours of paid personal/carer's leave equal to the number of ordinary hours the employee works in a two-week period. This is the case, regardless of whether their ordinary hours over this two-week period are worked across ten, six, or five days. If the employee’s ordinary hours in a two-week period vary because of their working patterns, the entitlement is 1/26th of the number of ordinary hours the employee works in a year. Payment: When a day of personal/carer’s leave is taken, the employee is paid the amount they would have been paid if they worked a number of ordinary hours equal to one tenth of the ordinary hours the employee would have worked in a two week period (or if the employee’s ordinary hours in a two-week period vary because of their working patterns, 1/26th of the ordinary hours the employee would have worked in a year). The timing and number of hours or days of leave taken does not affect this payment. All employees working the same number of ordinary hours in a year are to be paid the same for a day of leave, regardless of whether their ordinary hours over a two-week period are worked across ten, six, or five days in that period. Deduction of leave when taken: When a day of personal/carer’s leave is taken, the employee’s accrued entitlement is reduced by the actual number of ordinary hours the employee would have worked on that day. This means in some cases, because of the employee’s pattern of work or distribution of hours, the paid personal/carer's leave entitlement will not entitle the employee to be absent without loss of pay on ten working days per year. The same principles apply to the entitlement to paid annual leave under s 87(1) of the FW Act. However, the FW Act’s provisions dealing with unpaid pre-adoption leave, unpaid carer's leave, compassionate leave, and unpaid family and domestic violence leave are different. In respect of these entitlements a ‘day’ is not calculated according to an employee's ordinary hours of work. Rather, they authorise an absence for the portion of the 24-hour period that would otherwise be allocated to working. The High Court rejected the argument that a ‘day’ in ‘10 days’ in s 96(1) referred to a ‘working day’, consisting of the portion of a 24-hour period that would otherwise be allotted to working, thereby authorising an employee to be absent without loss of pay on ten working days per year. An employee whose hours are spread over fewer days with longer shifts would be entitled to more paid personal/carer's leave than an employee working the same number of hours per week spread over more days. The Court cited a number of unfair anomalies that would arise from this construction: An employee working 36 ordinary hours in a week in three shifts of 12 hours would be entitled to ten 12-hour days of paid personal/carer's leave per annum, or 120 hours, whereas an employee working 36 ordinary hours in a week in five days of 7.2 hours would be entitled to ten 7.2-hour days of paid personal/carer's leave per annum, or 72 hours. This is despite the fact the first employee would be less likely to need to take paid personal/carer's leave on a working day given they work on fewer days than the second employee. A part-time employee working one day per week for 7.6 hours would be entitled to ten days of paid personal/carer's leave per annum (the same as an employee working 7.6 hours five days a week) and would accrue the leave at five times the rate of a full-time employee. A part-time employee who works 12 ordinary hours per week as a single shift would accrue 120 hours of leave (ten absences of 12 hours) almost double the 72 hours of leave a full time employee working 36 ordinary hours per week over five 7.2 hour days would accrue in a year. A person who was employed one day per week by a number of employers would be entitled to ten days of paid personal/carer's leave from each employer. An employee who takes a part day of paid personal/carer's leave could take two hours’ leave which would be measured as a fraction of a day, not necessarily in hours, whereas an employee working shifts of different hours who takes the same number of hours of paid personal/carer's leave will have different portions of the day deducted from their accrued leave. See more

11.01.2022 How will the Court divide my assets following separation? Whether you have separated, or are considering separating from your partner, it is often a time that c...auses angst and anxiety. Determining how the assets of the relationship will be divided and the prospect of being able to support yourself and moving past the separation can be quite a daunting experience. If you are thinking about applying for a divorce it is important to note that you must apply to the court for property orders within 12 months of your divorce becoming final. If you were in a de facto relationship, you are able to apply within two years from the date of separation. If you do not file within these time periods, leave of the Court will be required. It is important to note that parties can divide their assets before actually getting a divorce. If your matter proceeds to court, the court is asked to determine the alteration of property interests. Based on the law as it stands today, the court applies the following steps to come to a decision: Step 1 The court first needs to ascertain whether it is required to make an order altering legal and/or equitable rights and whether it has jurisdiction to do so. Step 2 The court identifies the value of all the assets, liabilities and financial resources. The values are usually determined by way of consent or if there is no agreement, valuations are obtained. It is important to note that any values will generally be the value as at the date the court determines the matter unless there is compelling evidence before the court that the value of the asset pool or specific assets within the pool should be considered as at the date of separation. Step 3 A court will determine what financial and non-financial contributions each party has made (both directly and indirectly) to the acquisition, conservation and improvement of those assets, liabilities and financial resources, as they stand at the time the matter is determined by the court. Step 4 Taking the results after step 3, a court assesses whether any adjustment of property for future needs arises, with reference to a myriad of factors set out in either section 75(2) (for parties to a marital relationship) or section 90SM (for parties to a de facto relationship) of the Family Law Act 1975. The court is required to identify whether an adjustment will be afforded to either of the parties based on one or more of those factors being applicable in the matter. Step 5 After consideration of the matters raised above, the court is then required to determine if an alteration of property interest is required, and if it is just and equitable in all of the circumstances having regard to the matters raised above to make orders. Judicial Discretion The court is made up of different judges exercising discretion so there is no strict mathematical approach to what the outcome will be. However, an outcome that is within a percentage range, based on the best and worst-case scenario in a matter is generally able to be provided in the early stages of the matter upon receipt of instructions addressing the matters set out above. Next Steps If you are separated or considering separation and don't know what the next steps are in your matter or how to progress the matter in a meaningful and cost-effective way, our specialists can provide guidance on the process. Credit to Jacob Smith & Nicole Pearce.

11.01.2022 JobKeeper: Do I have to nominate all eligible employees? The JobKeeper wage subsidy scheme is now being implemented by the Australian Taxation Office (ATO) in ...workplaces across Australia. The obligations on employers to execute this scheme appropriately and effectively have been clarified through a number of different bodies. A key step that must be taken for employees to access the JobKeeper scheme is to complete a signed nomination form and give it to their employer. That form requires the employee to meet the eligibility requirements. Civil and criminal liability arises if the employee’s completion of this form is false or misleading. So, if you qualify as an employer for the JobKeeper scheme and you receive one of these forms from a person who was your employee as at 1 March 2020, do you have to nominate this employee to the ATO? JobKeeper for retrenched employees If you have retrenched the employee since 1 March 2020 or in the case of a casual, not offered them shifts, do you need to re-employ or re-engage the person? If still employed, can you decline to nominate them and then retrench them? The ATO is clear on this question. It informs employers that if they decide to participate in the JobKeeper scheme, they cannot leave out eligible employees who have nominated. However, it’s not clear the JobKeeper legislation imposes an express obligation on employers to re-employ or re-engage any dismissed employees for the purposes of obtaining the JobKeeper subsidy. There also does not appear to be any prohibition on retrenching eligible employees. If unfair dismissal laws apply to that retrenchment, one of the factors that will determine whether it is a genuine redundancy (and therefore exempt from challenge as an unfair dismissal) will be the employer’s compliance with relevant consultation obligations and whether it was reasonable in all the circumstances for the employee to be redeployed. The consultation clause in a modern award requires you to genuinely consider alternatives to retrenchment so that it is a last resort. It requires you to adopt a reasonable and fair redundancy process that affords the affected employees a genuine opportunity to be heard about the proposed redundancy before any final decision is made. This in turn requires the provision of such information about the planned redundancies as is reasonably necessary for the making of suggestions in respect of that matter and being receptive to any resultant suggestions. You can approach consultation with a particular outcome in mind, provided it’s open to change. Genuine consultation must provide the employee with an opportunity to influence the decision. However, it is not a right of veto. Provided you take the employees’ input into account, you can proceed with implementing the redundancies. When an employer closed its Melbourne office for financial reasons, the Fair Work Commission (FWC) in ASU v Auscript (2020) ruled the employer did not give genuine consideration to options other than redundancy, such as interstate redeployment or accessing the JobKeeper scheme. The FWC observed that while the employer had determined its future is nonviable, there nevertheless remains an obligation to treat staff with dignity in this time of crisis. If an employer has consciously determined to retrench an employee rather than bring them into the JobKeeper scheme, they will need to be prepared to justify this in the event of any legal challenge, given the availability of other options to preserve employment, such as JobKeeper-enabling stand downs. Changes to the general protections provisions The JobKeeper scheme has also resulted in amendments to the general protections provisions in the Fair Work Act 2009 (Cth) (FW Act). A JobKeeper-eligible employer cannot take adverse action against a JobKeeper-eligible employee because the employee would be entitled under the JobKeeper scheme to be paid by the employer no less than $1500 a fortnight (inclusive of PAYG tax and salary sacrifice items). Therefore, if an employer retrenches an employee for reasons that include avoiding having to pass on the JobKeeper subsidy to the employee, then the employer will contravene the FW Act and attract liability for penalties, compensation and reinstatement. Similarly, if the employer declines to rehire a permanent employee or re-engage a casual for this reason or reasons that include this reason they will contravene the general protections prohibition. The general protections in the FW Act may even extend to steps taken by the employer to exclude an eligible employee from accessing the scheme (i.e. not nominating the employee to the ATO), if that leads directly to some injury to the employee in their employment, e.g. retrenchment or stand down without pay. We are still open and solicitors ar available to assist you: 1300 913 284

10.01.2022 RBA October Meeting: As widely expected, the RBA resisted cutting rates yesterday and decided to wait and see how the budget panned out The government has... made it clear they want to support the housing market at all costs with the removal of responsible lending guidelines, more FHLDS places and further support for trades to support the construction industry It is now widely expected that the RBA will cut from 0.25% to 0.15% at the November meeting. o This has been reflected over the last couple of weeks with banks reducing variable rates in expectation of this cut. Given that the purchase process is at least 6 weeks long, there is a small window of opportunity before the Christmas shutdown. With the scrapping of the 'Responsible Lending' and the expected interest rate cuts; We are hoping that investors who maxed their borrowing capacity to be able to borrow more and grow their real estate portfolio. First Home Buyers: A further 10,000 FHLDS spots have been released however these are only applicable for NEW BUILDS and not established builds, meaning off the plan properties and house and land packages. o They also increased the max purchase price for this scheme from $700k up to $950k. This will increase competition in other price brackets like the Sydney and the surrounding real-estate market.

09.01.2022 Many businesses are being affected by challenging economic conditions. You may be thinking about pausing, changing, or permanently closing your business. When m...aking these decisions, it's important to get advice from a registered professional law firm like Adams Legal. Be wary of advisers who may recommend inappropriate or illegal actions. Untrustworthy or unregistered advisers may suggest things such as removing assets before a business is wound up. Watch out for red flags including: - people you don't know cold calling with advice - unsolicited letters, emails, or phone calls after you've been through court action with a creditor - advice to transfer assets to a third party without payment - refusal to provide advice in writing - suggesting they have a sympathetic liquidator who will protect your personal interests and assets - advising you withhold certain records from the bankruptcy trustee or liquidator - suggest you provide incorrect information to authorities - suggesting they deal with the liquidator or trustee on your behalf. If you follow inappropriate or illegal advice, you put yourself at risk. You could receive a fine, criminal conviction or even a jail term.

08.01.2022 Firmer stance against unfair contract terms for small business: Assistant Treasurer Michael Sukkar has announced that Commonwealth and state and territory gover...nments have agreed to make unfair contract terms unlawful and give courts the power to impose a civil penalty when a breach occurs. This nationwide agreement aims to strengthen the protection of small businesses against unfair contract terms and impose heavier penalties against the big businesses who are practising this now unlawful act. The move has earned the praise of Australian Small Business and Family Enterprise Ombudsman Kate Carnell who said, The government has clearly listened to the concerns my office has long held in relation to the impact of unfair contract terms imposed on small businesses by big businesses. Importantly these reforms will ensure unfair contract terms are illegal and the courts will have the power to levy penalties for breaches. The ASBFEO also welcomed the expansion of the definition of small business to under $10 million turnover or up to 100 employees, a change that will bring 99 per cent of Australian businesses within the scope of the unfair contract protection.

08.01.2022 Man sent to prison for defrauding desperate farmers! Stephen John Swindle (His real name) from Parkes had a business masquerading the sale of hay and grain to f...armers, but simply did not deliver it after receiving payment. Mr Swindle was imprisoned last week for defrauding New South Wales farmers of more than $80,000 in a scam that lasted more than two years, after being found guilty of 10 counts of fraud under section 192E of the Crimes Act 1900. During Mr Swindle's sentencing hearing, the presiding magistrate described his actions as reprehensible, in light of the tough drought affecting our farmers, and labelled the defendant as "lying, dishonest and violent". According to police papers, several vulnerable farmers purchased food for their livestock through Mr Swindle's business. Some of the orders were partially delivered, while others were not delivered at all. Mr Swindle lied to his customers about the whereabouts of the delivery trucks, and spent his ill-gotten gains on trips to theme parks, accommodation on the NSW South Coast, sports betting, groceries and liquor. Mr Swindle has been sentenced to a total of three years and six months behind bars and will be eligible for parole in November 2020. Funny how people used to have the name of their trade - still applies in his case,

07.01.2022 Live-in nanny paid $2.33 per hour Managing director of Award Mortgage Solutions, Kit Antony (Tony) Lam, and his wife Ming Wei (Tiffany) Tong are facing prosecution over allegedly requiring a Filipino nanny to work between 88 and 106 hours per week and underpaying her by $155,178.90. The nanny was paid 40,000 Philippine pesos per month over a 12-month period, her total pay for that time being equivalent to $12,574 Australian dollars. Averaged across the alleged hours she work...ed, this equates to $2.33 per hour. The Fair Work Ombudsman (FWO) alleges that under the Miscellaneous Award, the nanny should have been paid between $17.29 and $18.91 per hour, and up to $37.82 for overtime hours. If the court decides that the nanny was not covered by this award as there is no award specifically covering nannies and domestic workers the FWO will allege that she should have received the national minimum wage between $17.29 and $17.70 for every hour she worked, amounting to a total underpayment of $85,834. Sandra Parker of the FWO says this case will help clarify the coverage of domestic workers and nannies under the Miscellaneous Award. We allege the worker in this case was vulnerable to exploitation given she was new to Australia, resided with Mr Lam and his family and did not know what her workplace rights were, Ms Parker said. The scale of the alleged underpayments and the unreasonable work hours are concerning. It is alleged that agents for Mr Lam, whose company claims a turnover of more than $1.5 billion per year, recruited the worker directly from the Philippines. The FWO launched the investigation after receiving a referral from the immigration department, which had received anonymous reports on the worker’s conditions. See more

05.01.2022 FWO issues some guidance on new annualised wage clause

05.01.2022 New Laws to Prevent Phoenix Activities: The Treasury Laws Amendment (Combating Illegal Phoenixing) Act 2019 (Cth) (Act) came into operation on 18 February 2020.... The purpose of the Act is to give regulators greater powers to 'detect and disrupt phoenix activity, and to prosecute directors and other professional advisors who engage in or facilitate the activity'.1 Illegal phoenixing involves the stripping and transferring of an entity's assets, thereby denying creditors' access to those assets to meet unpaid debts. Creditors, including employees, are often left out of pocket due to illegal phoenixing and these amendments are designed to crack down on directors who actively seek to avoid paying creditors and employees and dodgy pre-insolvency advisors who recommend and facilitate illegal phoenixing. Key points The key measures introduced are: Strengthening enforcement options through the introduction of new phoenix offences and civil penalty provisions, carrying the highest penalties available under the law, to target both those who conduct or facilitate illegal phoenixing; Introduction of a new recovery power for ASIC, and extending the recovery provisions available to liquidators, to improve their ability to recover assets lost through illegal phoenixing; Preventing directors improperly backdating resignations, or ceasing to be a director, when this would leave the company with no directors to avoid liability or prosecution; Extending the director penalty provisions to allow the Commissioner to collect anticipated GST and related liabilities thus making directors personally liable for these liabilities; Expanding the ATO's power to retain refunds where there are outstanding tax lodgements; and Protecting the interests of legitimate businesses when restructuring or attempting to turn around a financially distressed business by protecting transfers of property made when the directors are in a safe harbour against insolvent trading. Creditor defeating dispositions The Act introduces a new concept known as a creditor defeating disposition. A disposition of property of a company is a creditor-defeating disposition if: The consideration payable to the company for the disposition was less than the lesser of the following: the market value of the property; the best price that was reasonably obtainable for the property, having regard to the circumstances existing at that time; and The disposition has the effect of: preventing the property from becoming available for the benefit of the company's creditors in the winding-up of the company; or hindering, or significantly delaying, the process of making the property available for the benefit of the company's creditors in the winding-up of the company. Thanks to Scott Butler

05.01.2022 Cold-hearted text costs employer $12K The Fair Work Commission (FWC) has taken exception to a small business’s dismissal of a casual employee over text, which ...Commissioner Ian Cambridge described as unconscionably undignified. AFS Security 24/7 Pty Ltd dismissed its casual employee of more than two years with the following text: Effective immediately we no longer require your services as a casual patrol guard with AFS Security. When the employee texted back asking Please explain, he received no response. He then telephoned. The employer did not answer. The employee then drove to the company’s office and approached the director’s wife and payroll officer, who had messaged him, repeatedly asking for an explanation for his dismissal. She told him that as he was a casual employee, she was not required to give him an explanation. Further, the employer did not provide him with any documentation confirming the termination of his employment. The employee submitted to the FWC that he had been unfairly dismissed as he was employed by AFS Security regularly and systematically for more than 12 months. He also had a problem with being dismissed over text. As well as being disrespectful, he said the text message didn’t give him an opportunity to respond if there was anything to be discussed before dismissal. He also said that he had never been given any warnings or anything like a warning prior to the dismissal. In its defence, AFS Security said it had relied on guidance from the Fair Work website as it had no experience in HR. The director said the website stated that a casual employee does not have to have a firm commitment in advance from the employer about how long they will be employed for, or for the days or hours they work. The director also submitted that the employee's employment was not regular or systematic, and he did not have any reasonable expectation of continuing employment on a regular and systematic basis. Moreover, he argued that text messages were a generational thing and were the normal method of communication for the company. The only reason the director gave for the employee’s dismissal was in the application form he submitted before the hearing: His services as a casual employee were no longer required. However, Commissioner Cambridge found that the casual employee’s employment was regular and systematic and as he had completed a minimum employment period of 12 months, he was entitled to unfair dismissal protection. He pointed out that AFS Security did not comply with the Small Business Fair Dismissal Code where it states, unless an employee is summarily dismissed, that it must do the following: [T]he small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job. The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee 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. Commissioner Cambridge said the employer simply believed that because [the employee] was described and paid as a casual it could dispense with his services whenever it felt like it, and with or without any reason. The true motivation for the dismissal of the applicant must remain something of a mystery as the employer offered no other explanation for the reason for the dismissal of [the employee] other than; ‘His services as a casual employee were no longer required’, he said. Employer lacked ‘basic human dignity' Unless there is some genuine apprehension of physical violence or geographical impediment, the message of dismissal should be conveyed face to face, Commissioner Cambridge said. To do otherwise is unnecessarily callous. Even in circumstances where text message or other electronic communications are ordinarily used, the advice of termination of employment is a matter of such significance that basic human dignity requires that dismissal be conveyed personally with arrangements for the presence of a support person and documentary confirmation. The procedure that the employer adopted whereby it advised the applicant of his dismissal by way of text message, and which was for undisclosed reason, was plainly unjust, unreasonable, harsh, and, unconscionably undignified. The dismissal of [the employee] with such perfunctory disregard for basic human dignity reflects very poorly upon the character of the individual or individuals responsible, he said. Commissioner Cambridge ordered AFS Security to pay the former employee $12,465 in compensation. See more

02.01.2022 Contesting a will It is a generally accepted principle of law that an individual is entitled to leave their property by Will to whomever they wish when they di...e. However, there are unique circumstances where the Court may alter the terms of the Will. If you believe that the deceased in his or her Will has not made appropriate provisions for you, you may be entitled to contest its terms by lodging an application with the Court for an order for provision to be made out of the deceased's estate to you (known as the family provision application). Contesting a Will is often a confronting process, and there are a number of factors which you should consider when deciding whether or not to contest a Will. Things to Consider Adopting a 'human approach' to these situations can often make the process much easier. If you have an amicable relationship with the executor(s) and/or other beneficiaries of the Estate, you should consider whether or not you can voice your concerns in an attempt to reach a solution through common ground. When deciding whether or not you should contest a Will, there are a few questions that you should ask yourself about your current circumstances: Are you financially secure? Do you have any health concerns or disabilities? Are you independent? This is because not everyone is entitled to contest a Will. Eligibility is determined by the Succession Act 2006 (NSW). The Act states that the following are considered to be eligible persons who may make a family provision application within 12 months from the date of death of the deceased person: a spouse, a de facto spouse, child of the deceased, former spouse, a person who: was totally or partially dependent on the deceased at any time which need not necessarily be at the date of death of the deceased, except in the case of grandchildren, and was a member of the same household as the deceased at any time (for example, step-children or parents), or a person, whether or not related by family, with whom the deceased person was living in a close personal relationship as at the date of death of the deceased, and one or each of whom provides the other with domestic support and personal care at the time of the deceased's death. While all of these people may be eligible, there is no requirement for a will to treat all dependants equally. You should also consider what the total size of the Estate might be. The Court will be more reluctant to intervene in an Estate that holds minimal value. While a solicitor with experience in family provision applications will be able to help you determine whether or not your Application has reasonable prospects of success, it is worth your time to consider each of these factors and know that they may be relevant.

02.01.2022 The Tsunami is coming!! There’s a moment before a tsunami where the tide pulls back, and the beach is bare and calm just before a devastatingly big wave crash...es in. That’s the moment Australian businesses are facing right now, where after months of challenging trading, JobKeeper and rent relief, government packages and cash injections, we are in a brief second of unnatural calm. Right now, the creditors can’t come calling. Right now, the debts can remain unpaid. But within 80 days, the waves will start to wash away the work of business owners who have built up their companies over years only to lose them in the wake of COVID-19. To get a sense of how big the wave might be, let’s look at the ripples we can see already. Back in March, with the prospect of thousands of businesses collapsing overnight, the federal government put in place key initiatives to forestall that event. Since a moratorium preventing creditors issuing statutory demands was introduced, the number of businesses entering external administration has nearly halved. Under the moratorium, the minimum amount for creditors issuing a statutory demand jumped from $2,000 to $20,000, and the time to reply to the demand increased from 21 days to six months. At the same time, the government also introduced a temporary safe harbour defence against civil insolvent trading, which would normally make directors personally liable for debts incurred when they should have suspected their company to be insolvent. Both changes were due to run until mid-September but were extended again until the end of December. The impact of the moratorium is obvious. If you think your business may not make it then now is the time to act. NOW. 1300 913284 and start planning to protect.

01.01.2022 FUNDING BOOST AND NEW EMERGENCY MEASURES TO PROTECT TENANCIES Residential landlords facing financial hardship due to COVID-19 will receive increased s...upport and greater certainty from the NSW Government’s new temporary rental support measures announced today. The six-month support package includes a moratorium on applications for forced evictions due to rental arrears for those financially disadvantaged by COVID-19, and new requirements for landlords and tenants to enter into negotiations over rental payments in good faith. Minister for Better Regulation and Innovation Kevin Anderson said an interim 60-day moratorium on finalising existing matters,or making new applications to the NSW Civil and Administrative Tribunal (NCAT) for forced evictions over rent arrears related to COVID-19,sends a clear message that the process is not optional. We know many people are worried about meeting their financial commitments at the moment. That is why we need more stability for tenants and landlords while the new Commonwealth income support payments are rolled-out, and landlords talk to their bank about mortgage relief,Mr Anderson said. Where a household is struggling to make rental payments and has suffered a loss of income equal to or greater than 25per cent due to COVID-19,there is a new obligation to enter into negotiations with their landlord or managing agent, prior to seeking a forced end to the tenancy. Tenants will be protected from eviction until NCAT is satisfied that negotiations have concluded. Any unpaid rent will accrue as arrears during this period. Treasurer Dominic Perrottet said the Government was allocating around $440 million towards rent relief in the form of land tax waivers or rebateswith the expectation that this would be split approximately evenly between business and residential landlords.Mr Perrottet said residential landlords would be eligible for a land tax waiver or rebate of up to 25 per cent if they passed the saving on to tenants in financial distress.This is effectively a $220 million commitment in the residential sector from the NSW Government to help encourage both landlords and tenants to reach agreement on rent reductions during this difficult time, Mr Perrottet said. It's also important that tenants suffering financial distress as a result of COVID-19 will not be blacklisted for the accrual of rental arrears during this time.Mr Anderson said it was important that both landlords and tenants continued to honour existing agreements to the extent possible. No reasonable person wants to end a tenancy right now,which is why we are supporting renters and landlords to negotiate new temporary terms, so tenants keep a roof over their head, and landlords aren’t left without rental income for the next six-months.For some people this may be a daunting experience, so to boost available support we’ve announced a one-off $2.5million boost to tenancy advocacy and advice services across the state.Tenants and landlords will also have access to assistance from Fair Trading and access to the NCAT to resolve matters after the end of the 60-day period. Need help - call us and speak to one of our experienced lawyers on 1300 913 284 See more