All employees in Australia are subject to 10 employment entitlements that are provided to all employees under the National Employment Standards (“NES”). In respect of notice periods under the NES the minimum notice periods are as follows;
Employee’s period of continuous service with the employer at the end of the day the notice is given
Period
Not more than 1 year
1 week
More than 1 year but not more than 3 years
2 weeks
More than 3 years but not more than 5 years
3 weeks
More than 5 years
4 weeks
There is a common misconception that the notice periods set out in the NES are the notice periods an employer can actually rely upon in terminating an employee’s employment. The law is that the National Employment Standards only set out a minimum, so, in circumstances where there is no employment contract or enterprise agreement with a clause stating precisely what the period of notice is a ‘reasonable notice period’ will be implied instead.
This was highlighted in a recent Supreme Court of New South Wales case being, Susanna Ma v Expeditors International Pty Limited [2014] NSWSC 859.
The case of Susanna Ma involved an employee at a global shipping company who had 24 years of service. There was no termination of employment clause in her contract, therefore the Court was able to find that a ‘reasonable notice period’ of 10 months be applied to the employee in these circumstances. This is in contrast to 4 weeks as a notice period under the NES for more than 5 years of continuous service.
The Court in this case looked at the employee’s circumstances such as her age (which was 49 years), the relatively high wage and the seniority of her position.
Cases such as Susanna Ma highlight the need for employers to have well-drafted contracts of employment in place. In circumstances where there is no express clause in relation to notice periods a Court may well interpret a reasonable notice period as being in excess of the National Employment Standards. It is important to have employees on current and clearly defined employment contracts with sufficiently drafted termination clauses.
If you are an employer who wishes to review their employment contracts, or an employee facing termination in their employment, Everingham Solomons can assist, because Helping You is Our Business.
This is an option for enforcement of a judgment when the judgment debtor is a company and the judgment debt exceeds $2,000.00.
A creditor’s statutory demand for payment must be made in the prescribed form and must be accompanied by an affidavit from or on behalf of the creditor stating that the judgment debt is owing. On service of the demand the options for the judgment debtor company are as follows:
Pay the creditor the judgment debt; or
Bring an application in the Supreme Court of New South Wales to have the demand set aside.
If the judgment debtor company does not respond to a statutory demand within 21 days of service, it is deemed to be insolvent under the Corporations Act. After expiry of the 21 days an application can be made for the winding up of that company in the Supreme Court of New South Wales.
When a company is deemed insolvent and an order is made for its winding up, the Court appoints a Liquidator to undertake investigations into the affairs, books and conduct of the company, and potentially its directors. From this the creditors are to be paid depending on other debts of the company.
For a debtor company to set aside a creditor’s statutory demand it must raise that there is a genuine dispute in relation to the debt which is the subject of the statutory demand. The test for a genuine dispute is not a high one for the debtor company to meet. Because of this it is advised that only uncontroversial debts or judgments be the subject of any creditor’s statutory demand.
This is an efficient and effective way to pursue a debt against a company. Any Company served with a creditor’s statutory demand should take it seriously due to the ramifications of a winding up order.
From experience it is the leverage of a creditor’s statutory demand that can yield results in a creditor receiving monies owed under a judgment by a company.
As with any litigation the enforcement of judgments should be taken with a commercial view. You may well not receive all or any of the monies owed to you under a judgment.
If you hold a judgment against a company or your company has received a creditor’s statutory demand for payment, you should contact a solicitor for advice.
At Everingham Solomons, our dispute resolution team is committed to providing the most time and cost efficient outcome when pursuing enforcement of judgments because Helping You is Our Business.
When dealing with difficult debtors are you or is your company having to;
Enter into payment plans?
Make stop work threats?
Threaten commencing legal action? or
Accept payments outside the normal trading terms?
These might be perceived as normal industry practice in order to get paid, but, as a creditor you should know the real risks that moneys received in these circumstances could very well be clawed back and repaid to a liquidator.
It is an affronting prospect that a creditor has to hand back monies earned for hard work to a company that may still owe them even more money. The classic examples are sub-contractors that have cash flow problems themselves having to pay back money to the larger building company when liquidators are appointed.
If a creditor receives a payment from a company within 6 months of that company going into liquidation (winding up) then that payment could be deemed an Unfair Preference Payment under the Corporations Act. It is deemed to be “Unfair” because the creditor has received more than it would have as a normal unsecured creditor in the winding up of the company.
There are Defences available. A creditor may be able to prove that it was a party to the transaction in good faith and had no reasonable grounds to suspect that the company was trading whilst insolvent (Good Faith Defence) or that it was part of an ongoing business relationship (Running Account Defence).
As with any potential legal problem prevention is the best cure. To minimise the risk of a later Preference Claim individuals and companies should;
Listen to your industry if you hear that a company is not paying its bills on time or struggling do not supply them;
Request money up front or at the time of supply;
Have clear terms of trade and stick by them;
For larger clients offer to enter a running account whereby an agreed monthly amount is paid.
If you have been the subject of an Unfair Preference Claim by a liquidator contact Everingham Solomons dispute resolution team. Our team is committed to providing the most time and cost efficient outcome when advising on Unfair Preference Claims or your debt collection needs because Helping You is Our Business.
Greetings my name is George Hoddle, I am the most recent addition to the Everingham Solomons Dispute Resolution Team.
I originally grew up on a farm in the Gunnedah area and my wife is originally from Armidale so the move has felt in some ways a bit of a home coming. I have been impressed with the economic growth and opportunities this area is providing.
With two children under two and having gone from a two bedroom inner city apartment to being able to have a menagerie of chickens, cats and dogs my family is thriving in its new country environment.
I am enjoying reconnecting with this great region and I am often on the road meeting with clients in the North West discussing what they require in legal services.
For the past 8 years I have been practicing in a commercial law firm based in Martin Place. During that time my practice was in the areas of commercial and common law litigation acting for companies, community groups and individuals across most State and Federal Jurisdictions.
Everingham and Solomons has impressed me with its continued pursuit of excellence and I am enjoying working with a team providing city standard service whilst competing on price and excelling in client service.
Our Dispute Resolution Team is headed by an accredited mediator. This helps us to explore all avenues available to our clients outside the traditional legal frame work. Some issues however, require a determination of a Court or Tribunal. In those circumstances, we are able to benefit from a combined experience of over 60 years of legal practice to prepare our client’s case for the best possible outcome.
Any form of legal dispute can be extremely stressful for all involved. At Everingham Solomons, our Dispute Resolution Team is committed to providing the most time and cost efficient outcomes for our clients because Helping You is Our Business.
All employees in Australia are subject to 10 employment entitlements that are provided to all employees under the National Employment Standards (“NES”). In respect of notice periods under the NES the minimum notice periods are as follows;