Is your employment documentation ready to go for 2017? – Keiran Breckenridge

KXBbwThe Australian Institute of Company Directors released its Director Sentiment Index for the second half of the year on 1 December 2016.  One of the headline findings is that, despite greater global uncertainty, 34% of directors expect their business to increase both levels of staffing and investment.  Business confidence among directors has increased by ten index points and is at its highest since 2013.

When a business increases its staffing levels, it also adjusts all manner of systems and processes. The risks to the business associated with its employees increase.  At Everingham Solomons, we hold a comprehensive database of employment documents that can be tailored to the needs of your business to assist you to manage risks around the employer/employee relationship.… Read More

Blockchains and DAOs – a view of the future – Keiran Breckenridge

KXBbwDistributed ledger technologies utilising “blockchains” are set to change the legal industry and the industries in which our clients operate. The cryptocurrency Bitcoin is an early application of this technology.

Please go online and look for the TED talk by Don Tapscott: “How the blockchain is changing money and business“.

DAOs – Decentralised Autonomous Organisations – are a fascinating example, and just may be the way businesses are run in the future. DAOs are organisations run mainly through computer coding and smart contracts.  A DAO’s records and program rules are securely held on a blockchain for all stakeholders in the organisation to access, review and verify.… Read More

More quality time with your banker (or your lawyer…)?

KXBbwIt is very common for the owners of a business operating through a company to have to provide a personal guarantee of the debt owed to the bank by the company. The Code of Banking Practice requires banks to give notice of particular features of guarantee and indemnity documents to business owners before such documents are executed.  Often, however, that process is rushed in order to get a particular transaction over the line.

In a recent case from Victoria, a senior business banking manager presented a sophisticated business owner with various finance documents, including a guarantee and indemnity. The banker spent 15 to 30 minutes discussing the documents with the business owner and then pointed him to where they were to be signed. … Read More

Bank fees class action fails – Keiran Breckenridge

KXBbwA class action bought by credit card, consumer and business deposit customers of a bank in relation to dishonour fees, late payment fees and the like has failed in the High Court.

We have all experienced these fees and felt annoyed at having to wear such a large amount for what seems to be a minor default on a credit card or bank account. The customers in this case argued that the fees they paid were not a reasonable estimate of the actual costs to the bank of their default.  They argued that the fees amounted to the imposition of a penalty by the bank and were unenforceable. … Read More

Can I cash out my employees’ annual leave? – Keiran Breckenridge

KXBbwOften a business will have staff who hoard their annual leave, whether it is to insulate themselves for a rainy day, to seek longer periods of leave in the future, or perhaps they just prefer to work rather than holiday.

For a business, this hoarding can create issues. Greater financial provision has to be made for annual leave entitlements.  Uncertainty can exist as to whether those staff members may seek long periods of leave at a time not suitable to the business.  Employee errors or even fraud can remain undetected if an employee never takes annual leave.

The ability for an employer and an employee to agree to cash out some of an employee’s annual leave has not featured in most Modern Awards.… Read More

Am I my loved one’s carer or a manager of legal issues? – Keiran Breckenridge

KXBbwI was invited to meet with members of the New England Cancer Carers’ Group this week and present to them on some of the legal issues faced by those who find themselves caring for a loved one undergoing treatment for cancer or some other illness.

I was confronted during my research at how many legal issues carers face, mainly as volunteers as well. I felt it was important to reassure the carers that there are many good solicitors and accountants in our region who can assist to work through these issues.

The big ticket items are there – ensuring that their loved one has his or her affairs in order via a Will, an Enduring Power of Attorney, an Appointment of Enduring Guardian (with Advanced Care Directive) and through superannuation arrangements.… Read More

When “kickbacks” can really kick back – Keiran Breckenridge

KXBbwNews reports occasionally contain stories about individuals with influence in tendering processes who receive “kickbacks” for giving favourable treatment to certain tenderers. This can sometimes take the form of a tendering party receiving an invoice for “consulting services” of some type from a company associated in some way with the individual with influence in the tendering process.  The invoice is paid and accounted for in the tenderer’s books, which then receives favourable treatment in the tender. The funds are then moved from the invoicing company in some way into the pocket of the individual with influence. On the surface, the payment can look legitimate but a bribe has been concealed.… Read More

Credit Card Surcharges and Booking Fees Under the Microscope

KXBbwBusinesses that charge excessive payment surcharges are now on notice from the Federal Government to clean up their act or face hefty penalties.

The Competition and Consumer Amendment (Payment Surcharges) Act 2016 has passed Parliament and now “a corporation must not, in trade or commerce, charge a payment surcharge that is excessive”.  A “payment surcharge” is an additional amount charged for processing payment for goods or services or for using one payment method over another.  A payment surcharge will be “excessive” if it breaches standards to be set by the Reserve Bank of Australia (RBA), which has indicated that surcharges must not be greater than the actual costs of accepting payment by those methods.… Read More

Don’t Let Your House Become Bleak

KXBbwBefore Charles Dickens was a successful writer he worked in a legal office as a clerk so it’s not surprising that Lawyers have prominent roles in many of his books.

One of his most famous books is “Bleak House”. A major plot point in the book is a legal case that went for so long that all the money in dispute was spent in legal fees. Dickens usually did not portray lawyers in a favourable light. In this book he described the lawyer character as “always looking at the client, as if making a lingering meal of him with his eyes”.… Read More

A Tool For a Building Subcontractors Tool Kit

KXBbwThe Building and Construction Industry Security of Payment Act 1999 (NSW) (“Act”) can be a powerful tool for subcontractors to use when seeking payment for work performed and materials supplied from non-paying or late paying builders.

When work has been performed or materials supplied entitling a subcontractor to make a claim for a progress payment under a subcontract, the subcontractor can serve a “payment claim” (a complying invoice) on the builder. Under the Act, the builder then has 10 business days to issue a “payment schedule” to the subcontractor setting out the amount of the payment claim it intends to pay. … Read More