As a result of a decision by the Federal Court of NSW on 11 November 2014, workers in NSW are entitled to accrue annual leave whilst they are receiving weekly payments of compensation.
The case, NSW Nursing & Midwives Associations v Anglican Care [2014] FCCA 2580, involved a lady by the name of Ms Copas, who was receiving weekly payments of compensation as a result of a workplace injury for a number of years.
The question the Court had to answer was whether Ms Copas was entitled to accrue annual leave whilst she was not working and receiving weekly payments of compensation. Importantly, Ms Copas had not been terminated and was still an employee of Anglican Care.
Section 49 of the Workers Compensation Act 1987 provides that an injured worker is entitled to compensation even though they are entitled to holidays or long service leave. That has been long interpreted as allowing an injured worker to receive both, workers compensation payments and annual leave or long service leave, assuming the worker had annual leave or long service leave owing.
Section 130 of the Fair Work Act 2009 (Cth) provides that a worker is not entitled to take or accrue any leave if they were absent from work because of a personal injury or personal illness, unless the taking or accruing of leave is permitted by compensation law.
The Federal Court held that the NSW legislation is a ‘compensation law’ and that because of section 49 of the NSW legislation, it allows workers to accrue annual leave and long service leave throughout the period that they off work receiving weekly payments of compensation, and prior to them being terminated.
This decision has wide ranging consequences for both employers and employees, for both the past and future. As the decision is very recent, it may well be that there is an appeal to a higher court and the full ramifications take some time to filter through.
If you require any assistance in respect to these or other matters, please do not hesitate to contact us at Everingham Solomons because Helping You is Our Business.
More people drift into de-facto relationships and many do not have an understanding of where they stand legally and financially, when the relationship ends.
It is worth noting that de-facto relationships can occur between heterosexual and same sex couples. They also exist even if one of the parties to the de-facto relationship is married to someone else or is in another de-facto relationship.
The Family Law Act states that for a de-facto relationship to exist, the parties must not be married or related to each other, and must be a couple living together on a genuine domestic basis, having regard to all the “circumstances” of the relationship. The circumstances may include for instance, the nature and extent of a common residence, the duration of the relationship, whether a sexual relationship exists, and/or whether there is a financial interdependence between the parties.
Furthermore, a de-facto relationship is deemed to exist if the total period of the de-facto relationship is at least 2 years, or where there is a child of both parties to the relationship. Additionally, if you do not meet the first two tests, but you are a party to a relationship where you made substantial contributions, you may also be entitled to be considered a party to a de-facto relationship.
The reason why it is important to determine whether you are in a de-facto relationship, is because a party will be able to make an application for a property settlement in the Family Court or Federal Circuit Court for financial orders upon the breakdown of the relationship.
A property settlement will legally finalise all financial matters between de-facto parties, including the ownership of property, repayment of loans and superannuation entitlements. Parties may also wish to seek a property settlement where one party has performed unpaid work in a joint business venture, or made significant improvements to the other party’s property, or where they have performed unpaid care of their de-facto partner.
Nonetheless, the court will only make financial orders in respect of a property settlement if it is just and equitable to do so.
It is also worth noting that you have a two year period from the date of separation in which to apply to the court for a property settlement in respect of the breakdown of a de-facto relationship.
At Everingham Solomons we have the expertise and experience to assist you with de-facto relationships and property settlements and any other family law matter because Helping You is Our Business.
Many commercial contracts contain provisions to the effect that one party must use their reasonable endeavors, best efforts or best endeavors to fulfill some promise to another party.
In the recent case of Electricity Generation Corporation v Woodside Energy, the High Court of Australia examined exactly what an obligation to use reasonable endeavors involved.
Woodside Energy (Woodside) and another business called Apache Energy (Apache), were the two main suppliers of natural gas in Western Australia. Electricity Generation Corporation (EGC) was a statutory body that supplied electricity to Western Australia and relied on natural gas from both Woodside and Apache to power its electricity stations.
EGC had entered a long term contract to buy natural gas from Woodside at a certain price (the initial market price). There were two relevant clauses in the contract, stated, essentially as follows:
Clause 3.2 Woodside will make available to EGC a guaranteed daily quantity of gas (GDQ);
Clause 3.3 In addition to the GDQ, Woodside will ‘use reasonable endeavors, taking into account all commercial, economic and operational matters’ to make available to EGC a supplemental daily quantity of gas (SDQ), should it be requested by EGC;
In June 2008 an explosion occurred at an Apache gas plant and stopped the plant’s production. As a result there was an undersupply of gas in the Western Australian market, driving up gas prices.
Shortly after the explosion, Apache and others, entered agreements to buy gas from Woodside above the initial market price. Woodside, now able to receive a higher price for their gas elsewhere, informed EGC that they would no longer make the SDQ available to EGC at the initial market price.
These facts gave rise to a dispute about whether Woodside had breached their obligations to usereasonable endeavors to supply the SDQ to EGC, by refusing to supply the gas to EGC at the lower price.
By a majority of four judges to one, the High Court sided with Woodside. Applying commercial considerations and having regard to the wording of clause 3.3, the court said that the contract did not oblige the Woodside to forgo or sacrifice their own business interests when applying their reasonable endeavors to supply the SDQ.
So, as it turns out, when it comes to exercising your reasonable endeavors in business, the above case seems to suggest that you don’t need to be very reasonable at all.
If you are engaged in any type of commercial dispute, contact Everingham Solomons, because Helping You is Our Business.
Passing ownership of assets to a disabled beneficiary can have the undesired result of reducing the beneficiary’s government pension.
The introduction of the Special Disability Trust (SDT) in 2006 was the Australian Government’s response to this problem.
SDTs can be established in a Testator’s Will and allow assets to be left to a disabled beneficiary without having adverse effects on their Centrelink entitlements.
SDTs may also be set up whilst you are alive and the restrictions and concessions applicable will be the same as those that apply to SDT’s created by a Will.
Who is eligible?
SDTs are only available to beneficiaries who meet the definition of “severely disabled” as defined in section 1209M of the Social Security Act 1991.
What are the benefits?
1. Asset Test Exemption
The assets of a SDT up to the value of $609,500.00 (indexed annually) will not be included in the beneficiary’s asset test;
Income from the assets of a SDT will not be included as income of the beneficiary; and
The principal home of the disabled person is not counted in the asset test.
2. Gifting Concession
Gifts up to the value of $50,000.00 to a SDT by a person who:-
is an immediate family member of the severely disabled beneficiary; and
is receiving an eligible form of social security pension; will not affect the giftor’s social security payment.
Summary
Whilst SDTs are potentially beneficial for persons with severe disabilities and their families, they are not suited to everyone.
For more information on whether a Special Disability Trust is right for you, please contact the experienced team at Everingham Solomons because Helping You is Our Business.
We often have a business client or an individual come to see us with one or more mystery notices from the Australian Taxation Office, their bank or their creditors. The notices contain lots of small print, intimidating language and tight deadlines for action. Too often, days or even weeks have passed before we see the notices because they have been sent to the client’s accountant initially, which ís commonly the registered office for the company behind the business, or the client’s tax agent. Or, quite frequently as well, the notices have arrived and been put straight in the client’s “too hard” or “rainy day” basket.
The notices turn out to be Director Penalty Notices from the ATO (a precursor notice to directors of a company that the ATO intends to recover from them personally the company’s PAYG withholding and/or SGC liabilities), a formal demand from the bank before possession action is taken regarding mortgaged property, or a creditor’s statutory demand for payment of a debt. With the latter type of notice, the company behind the business will be presumed to be insolvent if the demand is not dealt with in the 21 day period. That can lead to winding up proceedings being brought against the company.
In short, these types of notices are serious and need to be actioned as soon as they are received. Advice from experienced professionals should be sought and lines of communication opened with the party that has issued the notice. Otherwise, the future of the business, the company or individual behind it, and the personal assets of the company’s directors can be put at risk.
Keep those “too hard” and “rainy day” baskets empty, and ensure you have a good understanding with the registered office for your company to get such notices to you as soon as possible.
There is always a solution that can be fashioned if such notices are acted on early and proactively. At Everingham Solomons we will work with you to find the solution because Helping You is Our Business.
Click here for more information on Keiran Breckenridge.
Most franchise agreements contain terms to the effect that the franchisee is entitled to an “exclusive territory” where the franchisor will not compete for business or allow another franchisee to operate in that area.
Several recent court decisions have reviewed the obligation of franchisors to ensure the franchisee’s territory is not encroached upon by the actions of the franchisor itself or other franchisees.
A case involving a video hire store concerned whether the franchisor’s online sales breached the exclusive territory of the franchisee. The franchisor argued that as it had not opened a “bricks and mortar” store in the franchisee’s territory, it had not breached its obligation of non-competition. The Court held that there is no distinction between online and shopfront trading, and found that not only had the franchisor breached the exclusive territory, but had also failed to act in good faith.
A separate case was brought by a building contractor company against its franchisor, after making various complaints to head office over a 2 year period that it believed a neighbouring franchisee was poaching jobs in its territory. The franchisor had told the franchisee that it did not tolerate such behavior by other franchisees, and would take the necessary action to prevent the breach continuing. When nothing happened, the franchisee was forced to take the matter to court.
The Court discovered that the franchisor had in fact entered into an agreement with the neighbouring franchisee, allowing it to take on certain jobs in the area. Similar to the earlier case, the franchisor argued that there was no breach of the exclusive territory as the neighbouring franchisee had not opened a showroom in the territory. The Court held that the franchisee’s exclusive territory had been breached by the selling activities of the neighbouring franchisee, and the franchisor had breached its obligations in permitting this to occur. The franchisor was ordered to pay damages for lost profit and sales to the franchisee.
These recent decisions bode well for franchisees that are suffering as a result of franchisors’ lack of concern for their territorial rights – franchisors should now be aware that they may be liable for lost profits if they do not preserve their franchisee’s exclusive territories.
If you are a franchisee and believe that your exclusive territory has been breached, contact the team at Everingham Solomons where Helping You is Our Business.
The Family Law Act in Australia provides where parties to a marriage are granted a “divorce order”, an application to divide their assets must be made within 12 months of the “divorce order”, unless, the parties otherwise consent to an order or leave of the Court is granted.
However, what is the situation where parties are divorced overseas, 12 months has lapsed since their divorce and they are still to divide their jointly owned Australian property?
This was the dilemma that faced the trial judge in a recent case of Anderson & McIntosh (2013). The short facts of this case were, the parties married in 1988 in Queensland. They moved to Argentina in 2006. The parties during the course of their marriage had purchased property both in Australia and in Argentina. Their marriage irretrievably broke down. In 2010 the parties divorced in Argentina. The parties reached an agreement as to how their property in Argentina was to be divided but no agreement nor orders were made in relation to the property owned in Australia. In 2012, the wife made an application to the Family Court in Australia to divide the property the parties owned in Australia. This was outside the period of 12 months and she did not obtain leave of the Court to make this application. The husband sought that the wife’s application be dismissed as the time limitation had lapsed and prior leave of the Court was required prior to the wife making an application for the division of property.
The trial judge determined that leave of the Court was not required in these circumstances as the judge held the time limitation does not apply to an overseas divorce and that no part of the Australian legislation indicated the term inferred in the “divorce order” should apply to a divorce granted overseas.
The husband appealed to the Full Court of the Family Court.
The Full Court of the Family Court sitting at Brisbane held that there was no error at law by the trial judge and that the wife’s original application be granted.
At Everingham Solomons we have the expertise and experience to assist you with all legal matters associated with Family Law because Helping You is Our Business.
In our practice, we find that our business clients are increasingly focused on workplace matters – how they can effectively recruit, retain, train, manage and support their employees, while also keeping their employees healthy, safe, happy and productive. There can be many twists and turns, successes and mistakes in an employer’s journey with its workforce. There can also be some very difficult times – when an employee is injured or dies, suffers from a mental health issue, redundancies and dismissals, legal action around unfair dismissal and so on.
It is for all these “Workplace Matters” that we say “Workplace Matters”! Or at least it should for our region’s many employers.
On Wednesday, 15 October 2014, I will be joining Tania Thompson of Tania Thompson & Associates (an HR Consulting firm) and Greg Parkinson of Subsyst (a Work Health and Safety Consultancy) on an interactive Q & A panel as part of The Tamworth Toolbox series coordinated by the NSW Business Chamber. We will be answering your questions about Work, Health & Safety, Human Resources and Employee Relations.
Our goal is to have our region’s employers better understand their obligations and rights in relation to workplace matters.
We encourage you to join us from 12.00 pm to 1.00 pm next Wednesday, 15 October 2014 at The Pub, Gunnedah Road, Taminda.
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.
Click here for more information on Keiran Breckenridge.
Making a valid Will is one of the most important things a person can do to protect their loved ones. Over time a Will needs to be reviewed and updated so that it properly reflects life changing events. A recent South Australian court case highlights what can happen when appropriate professional advice is not sought before changing a Will. The effect can be devastating if the gift fails which was the result in this case.
The deceased left a valid Will dated 21 January 1993. The deceased subsequently prepared a note by hand on 12 May 1994 which sought to make a change to the 1993 Will. The terms of the 1994 document provided “Michael may have the use of the house for as long as he needs it”. Unfortunately the 1994 note did not comply with the legal formalities required to change a Will for example there were not two witnesses present when the note was written out by hand by the deceased and signed. This resulted in the case having to go before a court to determine a proper construction of the 1994 handwritten note of the deceased. This in turn caused delay and inconvenience to the administration of the estate.
Notwithstanding that the 1994 handwritten note prepared by the deceased did not comply with the strict formalities prescribed by legislation, courts are empowered to dispense with the formal requirements of a Will if certain requirements are met. In this case much turned on the 1994 document using uncertain language. “In the circumstances of this case, the expression ‘for as long as he needs it’ is, without more, entirely uncertain”. For example, how is Michael’s ‘need’ for the residence to be determined, by an independent arbitrator or by Michael himself? Is regard to be had to Michael’s financial situation and are emotional factors, such as sentimentality, to be considered also? The Judge emphasised that a reasonable beneficiary would require answers to these kinds of questions since the ultimate realisation of their bequest depends upon their answer.
In the end the court determined that the gift set out in the 1994 document was uncertain and therefore the gift failed. “In the circumstances, I am unable to give precise meaning to the expression, ‘as long as he needs it’, and therefore the duration of the … the gift is uncertain. I am not prepared to make any presumptions to remedy the ambiguity”.
In a 2013 case, a timely warning was issued “Homemade Wills are a curse. Occasionally where the assets of a testator are limited and where the beneficiaries are not in dispute no difficulties may arise in the administration of an estate. Flaws in the Will can be glossed over and the interests of all parties can be reconciled. But where, as here, the estate of the deceased is substantial, the Will is opaque and there is no agreement among the beneficiaries, the inevitable result is an expensive legal battle which is unlikely to satisfy everyone. All of this could have been avoided if the testator had consulted a lawyer and signed off on a Will which reflected his wishes”.
At Everingham Solomons we have the expertise and experience to assist you in making a Will that is in conformity with current law and deals with your particular circumstances Because Helping You is our Business.
Click here for more information on Lesley McDonnell
The Family Law Act, which is the overriding legislation which deals with parenting matters across Australia, does not prohibit parents from relocating following the breakdown of their marriage or de-facto relationship.
Parents may wish to relocate for many reasons, including for new employment opportunities, seeking family support, commencing a new relationship, or to create a physical distance between them and their estranged partner.
At the end of the day, any relocation should not be merely about distance. It should be about what are the consequences on the children who are moving away from the former family home and the non-resident parent?
The Family Law Court deals with parenting disputes where parties are unfortunately unable to agree in respect of the formal parenting arrangements concerning their children. The Court may be required to make an order permitting a parent to relocate away from the other parent or indeed can order a parent to return to where the estranged parent is living.
The Court must ensure that whatever decision it makes in light of all the facts and circumstances of the case, that the child’s best interests are paramount.
Clearly, relocating to a different town or suburb, interstate or overseas, will impact a child’s ability to spend time with and communicate with the non-resident parent. The practical difficulties, inconvenience and expense associated with facilitating time with the non-resident parent may therefore, outweigh the perceived benefits of moving. Likewise, the commitment of the resident parent to facilitate such time may be an issue.
It is also worth noting that so long as there is no history of abuse, violence or neglect by a parent, the Court must consider the benefit of the child having a meaningful relationship with both parents. Ultimately, relocating children away from one parent, may have a minimal, or alternatively, a significant effect on the ability to maintain a meaningful relationship with both parents.
At Everingham Solomons we have the expertise and experience to assist you with relocation issues and any family law matter because Helping You is Our Business.
As a result of a decision by the Federal Court of NSW on 11 November 2014, workers in NSW are entitled to accrue annual leave whilst they are receiving weekly payments of compensation.
