Changes to 457 Visa from 1 July 2013

MKG-newThe Migration Amendment (Temporary Sponsored Visa) Bill 2013 was passed in July 2013.  Although there are some positives for employers that are sponsoring overseas workers, generally they do not assist.

The Sub-Class 457 Visa allows skilled workers to come to Australia and for businesses to hire overseas workers on a full time basis for up to four years.  The purpose of the Visa is to fill a skill shortage.

The most draconian change is that employers must now prove that they attempted to hire Australian citizens and permanent residents before hiring overseas workers.  An employer must provide evidence of any retrenchments or redundancies in the four months prior, any testing undertaken and evidence of attempts to recruit local workers.

There is an increase in application fees from $455 to $900 but there are also a lot more additional fees that are payable such as fees for secondary applicants which includes children or spouses.

Perhaps the only positive for employers and workers alike is that if a worker ceased employment with a sponsor, they had to find another sponsor within 28 days or leave the country.  This period has been extended to 90 days which will give workers a better opportunity to find other employers and proposed sponsors an ability to complete any applications.

With the recent change in government, it will be of great interest to see if there amendments to the recent changes.

If we can of any assistance, please call us at Everingham Solomons because Helping You is Our Business.

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Employing Migrant Workers

MKG-newIt is the responsibility of the business to ensure that their employees are allowed to work in Australia.

On 1 June 2013 there were amendments to the legislation that broadens those people that can be found responsible for employing illegal workers.

The changes to the legislation also gives the government greater powers to obtain evidence and introduces not only harsher but more far reaching penalties.

It is the responsibility of the business to take reasonable steps to determine whether a worker is able to work in Australia. It is irrelevant that the workers are sourced directly or through a contractor or a labour hire company.

The fines range from $3,060 per illegal worker for an individual up to $255,000 for a corporation, again per illegal worker. What can you do to ensure that a non-citizen is able to work:

  1. sight an Australian or New Zealand passport;
  2. sight an Australian or New Zealand birth certificate;
  3. use the Department of Immigration and Citizenship Visa entitlement and
    verification online services (VEVO);
  4. sight the worker’s passport that has a valid work Visa label.

Copies of all documentation that you sight need to be kept.

It is imperative that workers are checked to ensure that they are able to work in Australia as the penalties are great.

If you need assistance in this regard, please call us as Helping You is Our Business.

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MKG-newGenerally speaking, a lien allows a person to retain possession of another person’s property until the costs or monies have been paid for it.

There can be a statutory lien which gives a person the right to hold the goods until the seller’s monies are paid.

Under the common law there can be a general or particular lien.  A particular lien which is more common refers to a person holding goods for work done on those goods until accounts have been paid.  Examples of this are a mechanic holding a car until a bill is paid or a solicitor holding a file until their account is paid.

A general lien however allows the person to hold the goods until all sums payable are satisfied.  Again to use the prior analogy, mechanics holding a car for bills paid for that car as well as another car, or a solicitor holding a file regarding family law for work done on that file and a conveyance file.

An interesting case on this topic is Stapley v Towing Masters Pty Limited (trading a Dynamic Towing) [2009] NSW CA 382.  This involved a tow truck driver claiming a lien over a vehicle.  The case was bought by an insurer who argued that a tow truck driver did not have lien over the vehicle.

The facts in short are that the truck driver picked up a vehicle and was asked by the driver’s insurer to drop it to a service centre so that the insurer could assess the damage.  When they went to deliver it the insurer refused to pay their account, so the tow truck driver took the car back to its depot and claimed a lien over it.

At first instance the court held that the tow truck driver was entitled to exercise a lien over the car as he was a common carrier.

The Court of Appeal however held that the tow truck driver was not a common carrier and therefore was not entitled to the lien.  This matter turned on the facts and whether the tow truck driver was a common carrier and held himself out to pick up all jobs at reasonable rates without reservation.

If you should have any queries about goods being held until payment, please do not hesitate to call us at Everingham Solomons because Helping You is Our Business.

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Casual or Permanent

MKG-newMost casuals know from week to week whether they will be offered more work.  That however does not mean that only those employees that do not know, would be treated as casual.

It is the informality, uncertainty and irregularity that gives rise to the characteristics of being a casual.

In the recent decision of Williams v McMahon Mining Services Pty Limited [2009] FMCA 511 the court held that as the employee’s work were performed according to a stable organised and certain roster, with certainty of working hours throughout the term of employment, he was not a casual worker.

There is however no one characteristic that makes an employee a casual and each case needs to be looked at on an individual basis.

Another older case is Licensed Clubs Association of Victoria v Higgins (1988) AILR497 where the court examined the following factors to determine what the ongoing relation was:

  • the number of hours worked each week;
  • whether a roster system is published in advance;
  • whether the employment pattern is regular;
  • whether the employee has an expectation of continuity of work;
  • whether the employer requires notice before an employee is absent or on leave;
  • whether the employee works to consistent starting and finishing times.

Implications for getting it wrong are significant.  Apart from fines, there are also entitlements to personal leave, notice of termination, redundancy pay, annual leave and protection from unfair dismissal.

Employers should carefully consider when engaging a casual employee whether the employee can be considered a true casual.  Employers should also review the employment contracts they use, particularly for casual employees, to ensure that they reflect the true legal relationship created.

The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues because Helping You is Our Business.

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Youth Sexting – The Legal Implications

MKG-newSexting refers to the sending of sexually explicit material by way of a phone or some other electronic means.

Whilst sometimes it may be malicious, often it may be an attempt at humour or where somebody has not thought through the consequences of their actions.  (Which teenagers do not have a mortgage on.)

It is an offence to distribute the images and store the images.  The criminal law implicates both the sender and the receiver of the images and whether there is consent by both parties is immaterial.

For instance a person who is under 16 takes a photograph of themselves and sends it to another person.  Both the person who sent the image and the person who received it, even though it may not have been requested, would be charged.

What’s more the person who receives it would also be placed on the sex offenders’ registry.  It is immaterial if the person who received it was 15 or 16 years old.  Once a person is on the sex offenders’ registry you are required to tell the Police where you live, where you work and in short where you are at all times, including, if you go on holidays.

An example of this might be if a 15 year old girl takes a provocative photograph of herself and forwards that on to her 15 year old boyfriend.  One of the parents seeing the image then alerts the Police.  Both children would be charged and the receiver of the image put on the sex offenders registry.  The sex offenders registry is reserved for pedophiles not sex offenders. Once on the sex offenders registry working in a school or coaching a soccer team on the weekend would be impossible.

In this digital new age where only five years ago texting didn’t exist, the grown ups are trying very hard to make the laws and grapple with new technology, however the consequences are not always as expected.

If you should have any concerns in respect to criminal matters, we can help because Helping You is Our Business.

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Forcing the Sale of My Property

MKG-newWhat can I do if I own a property with somebody else and I am the only one who wants to sell it?

Section 66G of the Conveyancing Act 1919 provides that where any property is owned by more than one person, one of the parties, who owns at least 50%, can approach the court and seek orders that trustees be appointed and for the property to be sold.

The money would then be held by the trustee and distributed in accordance with any orders of the court.

The court will generally only refuse an application for a sale pursuant to section 66G under special circumstances.  An example of a reason might be if it has previously been agreed between the parties that they will not sell the property unless everyone agrees.

In respect to the sale proceeds and how the trustee will distribute those, the following rules apply:

  1. the starting point is that the proceeds will be distributed in accordance with the title as provided for on the certificate of title;
  2. if the property is held in joint names, but the parties have not contributed equally to the acquisition/maintenance, there is a presumption that the property is held in a resulting trust in proportion to the respective contributions;
  3. this presumption of a trust can also be rebutted in cases where there may be a presumption of advancement.  Presumptions of advancement come about mostly in cases of property that is held jointly by family members and there may be a presumption that one party care or provide for the other, such as a parent/child relationship.

If you should have any queries about selling land that is jointly owned, please do not hesitate to call us at Everingham Solomons because Helping You is Our Business.

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Caveatable Interest

MKG-newWhen can somebody lodge a caveat over land?  The answer is when they have an interest over the land.

What exactly does it mean to have an interest over the land?  Common examples of caveatable interests are interests of a purchaser under a contract for the sale of land, interests of a mortgagee and somebody who contributes to the purchase price of a property.  Options to purchase land can also invoke a caveatable interest.

Interests that do not give you a caveatable interest over the land are, debts (that do not involve land), or any other contractual rights that do not involve the land.

A more difficult question is if there is a contract between the owners of the land and a builder.  This wouldn’t ordinarily give rise to a caveatable interest over the land unless the interest is elevated by the owner giving the builder a charge over the land.  In that instance the contractual right would become a caveatable interest over the land and a caveat could be lodged.

This type of scenario was considered in Composite Buyer v Soong (1995) 38 NSWLR 286.  This was a matter where the owners of the land gave a charge to the lenders of money.  This was held to be a caveatable interest as it was expressly stated that a charge was to be put over the property.

In the case of Epple v Wilson [1972] VR 440 VSC, an employee owed his employer money and they reached an agreement that said in part ‘Any proceeds due to me from the sale of my house is to be paid to (the employer)’.  This was held not to be a caveatable interest as although the money was to come out of the proceeds it did not create an interest over the land.

If you should have any queries in respect to caveats, please do not hesitate to contact the offices of Everingham Solomons because Helping You is Our Business.

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<MKG-newIn 2009 Safe Work Australia, a national statutory body was given the job of nationalising state occupational health and safety laws.  This was designed to harmonize the laws across the various jurisdictions.

On 1 July 2012, the Work Health & Safety Act (NSW) 2011 (WHS Act) commenced operation replacing the Occupation Health & Safety Act (NSW) 2000.  The NSW legislation, although not identical, is very similar to the legislation across the various States in Australia.

The reason for the changes has been the change in the workforce.  Over the years workplaces have become far less structured.  It is becoming far more common for people to do their work from home, be employed by labour hire companies, use contractors, sub-contractors as well as volunteers.  These changes to the workforce are reflected in the changes to the legislation and it attempts to encompass all workers as more broadly defined.

For NSW employers, there has been a shift away from an ‘absolute duty’ towards a duty to ensure safety ‘insofar as it is reasonably practicable’.  Having said that it also requires employers to be more proactive in respect to the safety measures they implement and their obligations are far broader.

What is ‘reasonably practicable’ depends on a number of factors which include the time and expense it takes to eliminate or reduce the risk.  If the steps required are disproportionate to the risk, then they may not be reasonably practicable.

The WHS Act also requires an ‘officer’ of the business to exercise due diligence to ensure the person conducting the business complies with its duties.  To exercise due diligence requires positive action which is to say it cannot be passive or disinterested in its obligations.

There is also a raft of regulations that have been introduced to place further obligations on employers and require them to, in effect, self regulate themselves.  This includes the introduction of health and safety representatives which will be discussed in a later advertorial.

If you should have any queries in respect to the Work Health & Safety Act, please contact the writer to discuss because Helping You is Our Business.

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Legal Professional Privilege

MKG-newPrivilege in legal circles or legal professional privilege is a lawyer and client’s right to maintain confidences.

This means that any oral or written communication between a client and his or her solicitor cannot be disclosed.  This has the effect of allowing the client to be open and frank with his or her solicitor without fear of incriminating themselves.

This right of a client is protected by both legislation and the common law.  The Evidence Act 1995 provides that a confidential communication between a client, lawyer and/or third party is privileged, if the communication was bought into existence for the dominant purpose of providing legal advice and/or litigation.

This may sound like a fairly simple test, however you can be rest assured that lawyers will complicate it.

There have been a number of high profile matters where legal professional privilege has been raised.  Most recently Michael Williamson, the head of the Health Services Union was caught with a suitcase full of documents in a carpark following a raid on his office.  At this stage the Police have been unable to look at the documents as he has asserted that the documents were subject to a legal professional privilege claim.  This claim is yet to be tested by the courts however the documents cannot be inspected by the Police until this claim for privilege is determined.

Another high profile case is that of Rupert Murdoch in the UK.  Mr Murdoch said that his solicitors had done an investigation in which they found there was no evidence of any illegal activity.  The law firm was unable to protect itself because the advice it had given was privileged and the privilege is that of the client’s.  It could however be said that Mr Murdoch may have waived the privilege by saying what the advice was.

Advice must be legal advice and does not extend to advice given by accountants.  Having said that if the advice is to a solicitor (about a mutual client), then it would be covered by legal professional privilege.

The privilege belongs to the client and can only be waived by the client or an order from the court.  If you have any questions about capturing or maintaining privilege, please call us at Everingham Solomons because Helping You is Our Business.

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How Much Can the Bank Sell My House For?

MKG-newSince 1 November 2011, a mortgagee (financial institution) has a higher duty to the mortgagor (property owner) when selling their property as a result of the property owner having defaulted on their loan repayments.

Section 111A of the Conveyancing Act 1998 (NSW) replaces a duty to ‘act in good faith’ with a negligence style duty of care.

Financial institutions already owe this duty to corporations but not to individuals.

Prior to these amendments, the law only required the financial institution to act in good faith.  This meant that the financial institution should not act willfully and recklessly and sacrifice the property owner’s interests.  The only remedy was for the property owner to go to the Equity Division of the Supreme Court.  This meant that sales referred to as ‘fire sales’ were often just that and purchasers would be able to pick up property well below market value, with little or no recourse for the property owner.

Since November 2011 a financial institution must take reasonable care to make sure that the property is not sold for less than market value.  If they breach this duty they will be liable to the property owner in damages.  More importantly the financial institution will not be able to contract out of this duty.  This means that the mortgage documents that are signed when the property owner takes out a loan will not allow the financial institution to exclude the provision.

It is also important to understand that this obligation extends to not only the financial institution but also their agents which would obviously include real estate agents.

The banks must take all reasonable care to ensure that the property is sold for either:

  1. not less than market value; or
  2. the best price that can be reasonably obtained.

Reasonably obtained’ would mean that the bank must take steps to obtain the best result which may include obtaining professional valuations, advertising the property, leaving it on the market for a reasonable period and allowing inspections.

This is definitely a step in the right direction for those people whose houses are sold by banks.  If we can be of any assistance, the property group at Everingham Solomons will be happy to assist you because Helping You is Our Business.

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