Independent contractors are usually self-employed and accordingly are their own boss – providing their own tools, deciding which jobs to take on, being paid to achieve a result and bearing the risk of non-payment.
Employees on the other hand are paid to work certain hours for an agreed wage, and are usually entitled to paid leave.
A common distinction between contractors and employees is the documentation used to engage the worker – an employee will usually be provided with an employment agreement for ongoing services; an independent contractor will usually enter into a contract specifying the nature of the work to be carried out during a particular period. The difference is sometimes small and it can be difficult to ascertain whether a person is a contractor or employee.
Whilst a difficult distinction, contractor versus employee is an important one for businesses to make.
A recent Federal Court case has held that signing contracts indicating an independent contractor relationship is not sufficient to shirk responsibility if the real nature of the relationship is that of employer/employee.
The case involved a number of insurance sales representatives who signed contracts to provide independent contractor services. The sales representatives however were trained by the insurance company, supervised and directed by the insurance company, and worked closely with the insurance company. The Court held that the insurance company’s ability to control the sales representatives placed them into the category of employee rather than contractor. The decision resulted in more than $500,000 in accrued annual and long service leave being paid to the insurance representatives by the company.
To avoid a costly claim for back pay or other entitlements such as superannuation or long service leave, contact the employment law team at Everingham Solomons where Helping You is Our Business.
Click here for more information on Rebecca Greenland.
When buying a rural property, it pays to do your homework. Rural conveyancing is a complex area in which purchasers need to take care to ensure they know exactly what they are buying.
The general principle of “caveat emptor” – buyer beware – applies to all land purchases, but has particular significance for rural properties. Not only is a farm a home, but also a business. Failure on the part of a purchaser to adequately investigate the property can have not only functional implications, but often monetary consequences too.
It is generally advisable for purchasers to conduct pre-purchase searches or enquiries prior to entering into the contract – once contracts are exchanged, the purchaser is locked into the deal and it will be too late to withdraw if a problem arises.
Some common searches include:
Livestock Health & Pest Authority – provides information regarding chemical residue and stock diseases.
Crown Lands – ascertains whether there is any land within the boundaries of the farm that does not belong to the Vendor and for which a rental may be payable to the government.
Mineral Resources – with mining and gas installations becoming ever more common, this search identifies whether any exploration or drilling licences affect the property.
Water entitlements – the implementation of water sharing plans is changing the nature of water licences, whereby water entitlements that were once attached to the land can in some situations now be severed from the land and sold separately. The distinction is important not only for the purchaser’s use of the water, but also as it alters the conveyancing process in terms of ensuring the purchaser receives legal title to use the water.
Building entitlements – the introduction of new local environmental plans is changing Council requirements regarding the lot size on which dwellings can be constructed. A farm may have no value to the purchaser if they cannot build their home on the property.
There are a plethora of other enquiries which can be made, however the searches will differ depending on the location and proposed use of the property.
Whilst the searches require money to be expended prior to securing the purchase, it is worthwhile outlaying some funds to ensure the property will meet all of the purchaser’s requirements.
If you are considering buying a rural property, contact the experienced team at Everingham Solomons where Helping You is Our Business.
Click here for more information on Rebecca Greenland.
Employers have an obligation under the Work Health & Safety Act to ensure, so far as is reasonably practicable, the health and safety of workers.
One of the increasing areas of concern is drug and alcohol use which affects a workers’ performance or has the potential to cause harm or injury to other employees.
Many employers are implementing workplace drug and alcohol polices in an effort to satisfy their WHS obligations.
A recent decision by Fair Work Australia illustrates that in attempting to comply with WHS legislation, employers need to consider the privacy rights of workers.
The case involved a company implementing a new drug and alcohol testing policy which included urine testing. Both the employer and the Union representing the employees of the company, agreed that random drug and alcohol testing was appropriate from a WHS perspective. The cause for disagreement was the appropriateness of urine testing.
The general principle is that a judicial body should not seek to interfere with the right of an employer to manage its business, unless the employer is seeking from the employees something which is unjust or unreasonable.
Fair Work Australia found that urine testing was an unjust and unreasonable method because:
oral (saliva) testing was available;
oral testing is able to identify whether there has been recent consumption of drugs, whereas urine testing cannot; and
urine testing can have a positive result even where the consumption of drugs occurred several days prior. There was therefore a risk that employees might be disciplined for drugs taken outside the employment context which at the time of testing had no WHS ramifications.
The decision illustrates the need for employers to be reasonable in their requirements of employees, whilst also balancing their WHS duties.
The Employment Law team at Everingham Solomons is well equipped to assist you to prepare appropriate employment policies because Helping You is Our Business.
Click here for more information on Rebecca Greenland.
Obtaining registration of trademark can be a lengthy and at times costly process. Creating an intellectual property right from the seed of an idea is however a worthwhile pursuit – provided all the hard work doesn’t go to waste by your failure to use it.
IP Australia, the government agency responsible for administering intellectual property rights and legislation, is warning holders of trademarks to use their IP or risk losing their rights – failure to utilise your intellectual property can see a person or company apply to have your trademark removed from the register.
An application for removal can be commenced if you have not utilised your trademark for a period of three years, or if you did not have an intention of using the trademark when you filed your application for approval (as evidenced by never having utilised your trademark).
Obviously competitors are the most common applicants for removal – they might be wishing to register a similar trademark and your IP is hindering their registration. And fair enough where you are effectively “sitting” on a trademark to deliberately prevent your competition from being able to utilise similar words or logos, without actually using the trademark in your own marketing or business.
An application for removal must be defended by the holder of the trademark – failure to oppose the application will see it succeed and your trademark will be deregistered. Deregistration not only means your competitor will get a foot in the door, but also that you will need to re-apply for registration which could be difficult if your competitor has since filed a similar trademark.
So the moral of the story is as simple as “use it or lose it”. If your business has gone to the effort and expense of registering a trademark, taking time to manage your IP rights by ensuring the trademark is used regularly is a worthwhile investment to maintain your market advantage.
If you are considering IP registration, contact the team at Everingham Solomons. We are well equipped to assist you with all your intellectual property enquiries becauseHelping You is Our Business.
Click here for more information on Rebecca Greenland.
Have you developed a great product, logo, brand, design or process? Are you a wannabe “inventor”? Do you have a unique target market?
If this description fits you or your business, you should be considering intellectual property (IP) protection.
IP protection comes in various forms, depending on what you are wanting to protect:
Trademark: a valuable marketing tool which identifies your “brand”. Commonly used to protect a word, logo, letter, number, phrase, picture or shape (but can extend to sound and smell too!). By registering a trademark, you have a legally enforceable right to exclusive use of the trademarked item.
Patent: a right that is registered for new, inventive and/or useful devices, substances, methods or processes to provide the owner with a legally enforceable exclusive ability to exploit the invention.
Design: registration protects new and distinctive designs (that is, shapes, patterns, configurations) that have a commercial use. Registration of a design gives the owner exclusive rights of licence and sale.
Plant Breeder’s Rights: protects new varieties of plants to enable the owner to exclusively cultivate, sell and distribute. The owner of a Plant Breeder’s Right is entitled to receive royalties from the sale of the plant.
Copyright: protection of original expression of ideas (not the ideas themselves) is automatically protected in Australia. Examples include books, music, films, artwork and computer programs.
Registration of your Intellectual Property is required in order to obtain the protections offered by trademarks, patents, designs and Plant Breeder’s Rights. Failure to register your idea or product could lead to other people imitating your IP or worse still, claiming a registration so that you will not be entitled to use your own invention!
Online registration is now available to make the application process more timely and cost effective. There is no excuse for putting off your IP registration any longer.
If you are considering IP registration, contact the team at Everingham Solomons. We are well equipped to assist you with all your intellectual property enquiries Because Helping You is Our Business.
Click here for more information on Rebecca Greenland.
The use of the internet and iphones by workers is increasing, and with social media becoming more and more popular, so too is the use of these devices by employees during work hours.
Whilst some employers may encourage their staff to actively promote the business via social media networks such as Facebook and Twitter, many a boss is lamenting the rise of the thumb-twitching, seemingly constant, updating of employees’ status between nine and five.
The most obvious impact of an employee using work time for personal communications is decreased productivity. But having the employee’s mind more focused on who “liked” what and what they had for breakfast could be the least of the employer’s worries.
The use of social media at work also raises concerns regarding inappropriate conduct which can negatively impact on public perception of the business, or could also lead to bullying and harassment or disclosure of confidential information (whether intentional or not).
There are further risks for employers when attempting to discipline employees who inappropriately use social media.
To combat the risks of inappropriate social media use, it is recommended that employers adopt a social media policy which provides strict guidelines on the use of social media in the workplace, as well as out of hours. Such a policy can also reiterate employees’ responsibilities in relation to harassment and confidentiality.
A standard social media policy should include:
a definition of inappropriate use;
details of the employer’s expectations in relation to social media use in the workplace;
a warning that comments made in private accounts out of hours may result in disciplinary action;
reiteration of obligations around the use of confidential information;
consequences of inappropriate social media use.
If you think your business could benefit from a social media policy, contact the employment law team at Everingham Solomons where Helping You is Our Business.
Click here for more information on Rebecca Greenland.
1 January 2012 saw the commencement of the harmonised Work Health and Safety Act. To date, the new legislation to implement a national approach to workplace health and safety has been adopted by the Commonwealth, New South Wales, Queensland, Northern Territory and ACT governments.
The Work Health & Safety (WHS) legislation requires those persons who have a duty to ensure health and safety in the workplace to manage, or at least minimise, risks to workers so far as is reasonably practicable.
This duty applies to the person who is conducting a business or undertaking (a PCBU). A PCBU includes:
– employers
– corporations
– associations
– partnerships
– sole traders
– volunteer organisations that employ workers
The PCBU must ensure the health and safety of workers, and also has a duty of care in relation to customers and visitors to the workplace.
Workers include employees, volunteers, labour hire staff, apprentices, contractors, sub-contractors and work experience students. Workers have a duty to take reasonable care for their own safety whilst at work, and to ensure that their actions in the workplace do not detrimentally impact on the health and safety of others.
In order to satisfy the new legislative requirements, PCBUs should develop work health and safety policies and procedures. However developing a policy will not of itself ensure compliance with the WHS Act – PCBUs must ensure that workers are trained in work health & safety matters and comply with the strategies adopted by the PCBU.
Is your business compliant with the WHS legislation?
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues from provision of written policies, advice regarding termination of employees and redundancy, contracts of employment and warning letters, to the application of the Modern Awards, because Helping You is Our Business.
Click here for more information on Rebecca Greenland.
No-one, man or woman, should be subject to harassment of a sexual nature in any circumstances and particularly not in the workplace.
Whilst notions of equality and commonsense should dictate that sexual advances in the work environment are not condoned, unfortunately sexual harassment by both employers and co-workers remains problematic in Australian businesses.
Obviously the emotional and health effects of sexual harassment impact severely on the victim. But rarely do employers expect a sexual harassment claim to affect their business.
Employers need to be aware of the ramifications of an employee bringing a claim for sexual harassment, and should take positive steps to prevent an incident occurring in the workplace.
It is vital that all businesses have a harassment policy in place, preferably in conjunction with anti-discrimination and equal opportunity strategies.
Employers need to ensure that not only is a policy in place, but that complaints regarding sexual or any other form of discrimination are dealt with in a confidential and responsive manner, and that all grievances raised are adequately addressed.
Unfortunately many instances of sexual harassment result in the victim’s employment being unfairly terminated. In such a situation, the employer can expect OH&S implications to flow from a failure to create a safe working environment, together with an unfair dismissal or unlawful termination claim being filed by the employee.
A breach of the general protections grounds under the Fair Work Act (which include sexual discrimination and filing of a complaint) can result in the employee being awarded compensation, together with the employer being fined up to $33,000 for a corporation or $6,600 for an individual, for each offence.
It is therefore important that employers have the necessary written policies in place to comply with their legislative obligations.
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues from provision of written policies, advice regarding termination of employees and redundancy, contracts of employment and warning letters, to the application of the Modern Awards, because Helping You is Our Business.
Click here for more information on Rebecca Greenland.
I have my dress chosen, the high heels co-ordinated; I am wondering whether elbow-length gloves and some pearls would be the final additions to my outfit? I am getting frocked-up for the Women in Business Charity Movie Night co-hosted by Eversols and the National Australia Bank.
With the assistance of Forum 6 Cinema, we have secured a private screening of the classic “High Society”, starring the glamorous Grace Kelly, in support of Ovarian Cancer.
As the event will support Frocktober, we are asking attendees to wear a dress to the movie. For those more daring, 1950s Hollywood glamour will be the theme of the night.
So channeling the enchanting Princess of Monaco, I have selected my dress and I am gathering all my loose change together for the raffles and auction items that will feature at intermission.
I am most looking forward to the auction of several blokes who will kindly donate their time & handy-man skills to the highest bidder. Andrew Warden, winner of this year’s Young Auctioneer competition at the Sydney Royal Easter Show and stock & station agent with Ray White Garvin & Cousens, will convene our auction and talk up the fellas (as if they don’t do it enough themselves!) who will be available for “purchase”. We are hoping that the highest bidder will utilise the team of blokes for a business renovation or better still, donate the boys to a charity who could use some hands-on assistance. Hopefully the ladies who attend the night will be in need of some muscle and will be willing to bid up the boys in aid of a great cause.
Employers are entitled to direct and control how employees carry out their work and to provide feedback on employee performance. But employers (and senior employees) should be mindful not to “let the power go to their heads” and tip the scale from constructive criticism to workplace bullying.
Workplace bullying can be difficult to define, but is generally classified as repeated unreasonable behaviour that threatens, intimidates or humiliates a person in the workplace and usually has negative effects on the bullied persons’ health and safety.
Bullying can be quite overt, such as physical assault or being demeaned and patronized in front of colleagues. However, it is common for the bullying behaviour to be subtle and only directed at the victim out of the hearing of others in the workplace.
The perpetrators of bullying usually employ the less overt techniques of trivial criticism, lack of acknowledgment, isolation, withdrawal of work and setting of unrealistic targets in order to ‘fly under the radar’ whilst fulfilling their own misguided desire to wield power or play puppetmaster.
Employees affected by bullying suffer from stress and anxiety, loss of self esteem and feelings of isolation at work. Apart from the negative health & well-being effects on the employee, a worker who is the subject of bullying will not be operating to their full working capacity which in turn affects the profitability of a business.
Employers should be mindful of the ways in which the incidence of workplace bullying can be reduced, including:
developing a workplace bullying and harassment policy, as part of an overall OH&S policy.
educating employees as to what constitutes unacceptable behaviour, and encouraging respectful behaviour in the workplace
being responsive to allegations of bullying by providing avenues for employees to make complaints (without suffering ramifications for whistleblowing)
monitoring the workplace for signs of bullying behaviour (such as employees taking excessive amounts of leave)
Employers need to be aware that in some cases, depending on the nature of the harassment, employees can commence legal action against their employer for failing to prevent bullying in the workplace.
It is therefore important that employers have the necessary policies in place to prevent bullying and create a safe & productive workplace environment.
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues from policy updates to termination of employees, contracts of employment to redundancy correspondence, warning letters to application of the Modern Awards because Helping You is Our Business.
Click here for more information on Rebecca Greenland.
Independent contractors are usually self-employed and accordingly are their own boss – providing their own tools, deciding which jobs to take on, being paid to achieve a result and bearing the risk of non-payment.
