At present, business name registrations have been handled on a state by state basis by differing departments in each state. For example Fair Trading in NSW and Consumer Affairs in Victoria.
As and from 28 May 2012 the registration and renewal of business names will be managed by the Australian Securities and Investment Commission (ASIC) on a national level. Accordingly ASIC will oversee a national business names database and will handle all Australian business name applications and renewals.
This means that if you have the same name registered in multiple states, you will no longer need to renew them in multiple locations. All names will be registered from the various state locations on the new database. If you are in this situation it will be up to you to decide whether you ought cancel any duplicated names as they will all appear on the new national data base.
The change is about making it easier for businesses to operate in different states of Australia and making it easier for people to know who it is they are dealing with in a business, by cutting the red tape.
The change will not affect existing registered business names, as they will be automatically transferred to the new ASIC register and retain their existing expiry dates.
After 28 May, renewal notices will be sent from ASIC. Payment and renewal applications can be attended to online.
You should note however that the registration of a business name does not provide protection to you from someone else being permitted to register a similar business name. If this is what you require then consideration to registering a trademark ought to be considered.
If there are similar or identical names already registered in different states, then ASIC will register the names notwithstanding that they are similar or identical and will then identify them by indicating that the name was previously recorded in a particular state so that the public can differentiate the name when searching.
If you require any assistance with respect to business names, trademarks or any other business related matter we at Everingham Solomons have the expertise to help you because Helping You is Our Business.
With holidays around the corner, it’s not surprising that many employees tend to lose their inhibitions at work-related end of year celebrations.
Employer Responsibilities
As part of their obligations, and to avoid the litigious pitfalls due to an employee’s inappropriate conduct, employers must take reasonable steps to mitigate their legal exposure and to avoid inappropriate workplace behaviour at the Christmas party, or any other work function
Practical Steps for Employers
Ten basic precautions employers can take include the following:
Ensure all policies and procedures are clear and that they are understood by all employees. A written reminder just prior to the function may assist to ensure employees are aware of the company’s expectations with regard to their behaviour.
Monitor the consumption of alcohol and ensure the venue ceases service if necessary. Also provide non-alcoholic beverages.
Have a designated senior manager who does not drink at the function to increase the level of vigilance and set a ‘lead by example’ approach.
Where there is alcohol, there should also be food. People become inebriated faster when consuming alcohol on an empty stomach.
Enquire about and, if reasonable, provide safe transportation arrangements from the venue, or make sure employees have suitable arrangements in place.
Make it clear when the event ends and remind employees that any ‘kick-on’ parties are subject to the same appropriate behaviour expectations.
Ensure that the entertainment at the event is not considered offensive.
Set guidelines for gift exchanges such as ‘Secret Santa’ to ensure they are not offensive, and set a dress code for the event to maintain the level of professionalism.
Should rumours circulate address them promptly, regardless of whether a formal complaint has been made.
If a complaint is made, investigate it immediately and thoroughly.
Finally remember, the festive season is the time to have some fun and reminisce on the year that was.
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.
What rights does a Vendor have to reclaim goods sold after delivery where the Purchaser becomes insolvent and is unable to pay?
In a recent Supreme Court decision of Gilgandra Marketing Co-Operative Limited v Australian Commodities and Merchandise Pty Limited and Others the parties entered into Contracts for the sale of a large quantity of wheat which was supplied from the Narrabri area to the Sydney container terminal and then shipped to Bangladesh.
At the time of litigation, the wheat was at the port in Bangladesh but the purchaser had not taken physical delivery.
The seller instituted proceedings seeking among other things a right to take possession of the wheat based on a claim that the title to the goods had not passed to the Purchaser because the Purchaser had not taken actual delivery of the wheat from the carrier.
The Judge held that under the specific Contract terms, title in the wheat passed to the purchaser on the delivery of the wheat to the Sydney terminal and that was deemed to be delivery to the Buyer at that time.
The Vendor also argued that under Section 42(1)(b) and (c) of the Sale of Goods Act (NSW) that where the Purchaser becomes insolvent, the unpaid vendor has a right of stopping the goods in transit even if the title in the goods may have passed to the purchaser.
The Court agreed with this argument and the Vendor was entitled to re-take possession of the goods because they were still in the course of transit.
It is always worth seeking legal advice regarding your circumstances, you might be surprised..
At Everingham Solomons we have the experience to help you because Helping You is Our Business.
Modern attitudes to corporate responsibility have greatly increased the scope for directors to be personally liable for what would otherwise be corporate responsibilities.
We already have significant director liability provisions in Corporations, Occupational Health and Safety and Taxation legislation.
In October the Federal Government introduced legislation which will significantly extend the scope for liability of directors and their associates in the taxation and superannuation areas.
In releasing the legislation, the Government stressed the need to –
crack down on companies which ignore their tax and superannuation responsibilities to obtain a competitive advantage over other businesses and
protect workers entitlements
by “ensuring every Australian business plays by the rules”.
Under the current legislation, company directors receive a warning and a period of notice before becoming personally liable for company tax liabilities. That will no longer be the case. The ATO will be able to take action against directors without prior notice where a company’s pay as you go (“PAYG”) withholding tax or superannuation guarantee obligations are unpaid for three months.
It is very likely that this proposed legislation will become law. It will have significant implications for –
Companies with existing PAYG withholding liabilities. Ideally they will need to deal with those liabilities in one of the presently allowed ways before the new legislation takes effect;
People offered directorships will need to make due diligence enquiries before accepting appointment at the risk of otherwise becoming liable for unpaid tax or superannuation amounts due before they accepted appointment; and
Existing asset protection strategies. The proposed legislation extends to directors and their associates. This term includes relatives, partners, spouses and children. This will require all directors to review whatever asset protection strategies they might have in place before the legislation becomes effective.
At Everingham Solomons we have the expertise to assist you with these issues and all your other corporate and business legal issues because Helping You Is Our Business.
Under recent changes to the law, sub-contractors can now claim against the principal or head contactor for payments due to them from the person that contracted them to carry out the work.
Before the amendments, if you were owed money by a contractor you had to obtain a judgment in a Court or an adjudication certificate, whilst at the same time not knowing whether the contractor who owed you the money had the funds. The consequent delay in that process sometimes allowed the contractor to “do a runner”.
The changes effectively enable a sub-contractor to earmark and secure money owed to a contractor by the principal contractor. It has the potential to minimise the risk of non-payment due to a contractors insolvency or dishonesty.
The legislation effectively freezes money in the hands of the principal contractor before it is paid to the person or entity who owes the sub-contractor the money.
A sub-contractor must first lodge and serve an adjudication application on the contractor and then serve on the principal contractor a “payment withholding request”.
The principal contractors’ obligation is to withhold an amount equal to the amount specified until either the contractor pays the sub-contractor or there is an adjudication certificate in your favour.
If an adjudication certificate is served on the principal contractor, the principal contractor must pay the sub-contractor the amount withheld.
If the principal contractor does not comply with the request, it becomes liable for the debt owed to the sub-contractor.
In effect the new amendments allow a sub-contractor to use money owed to the contractor by the principal contractor as security for the sub-contractors entitlements to payment under the sub-contract.
The process is very much paper and time driven and needs to be carefully managed to ensure the documentation is correct and the time limits observed.
If you require assistance in recovering your debts, Everingham Solomons have the experience, because Helping You is Our Business.
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.
On 7 June 2011, the Work Health & Safety Act2011 became law in NSW. The WHS Act repealed the Occupational Health & Safety Act2000 and made three significant changes to the old law.
First, the new Act does away with the reverse onus of proof, which under the old law, meant, in effect, that all the prosecution had to prove was a work accident and then the onus shifted to the defence, which had to prove that the actions, that might have been taken to avoid the accident, were “not reasonably practicable”. This statutory reversal of the onus of proof was an assault on that principle of English criminal law, which Rumpole called the “golden thread”, namely that the prosecution must prove beyond reasonable doubt every single element of the crime charged and the defence does not have to prove a thing. Under the new Act, the prosecution must prove all of the elements of the offence including that the measures, that are asserted should have been taken to avoid the accident, were reasonably practicable. This will be easy if the risk of the accident was obvious e.g. unguarded machinery but, if the risk was not obvious, then the prosecutor will have to think twice about the evidence required.
Secondly, the new Act does away with the provisions which deemed as guilty officers of a guilty corporations. In their place are provisions imposing upon officers a duty to exercise all due diligence. The definition of officers is the same as the Corporations Act. Exercising due diligence includes taking steps to have knowledge of OHS matters, understanding hazards, ensuring that they are eliminated and the like. Some insurance companies offer cover for fines imposed on officers for OHS breaches but lawyers suggest that there are public policy difficulties about this because it is analogous to arranging for one person to do the time for another person’s crime.
Thirdly, the new Act does away with a trade union secretary’s right to prosecute an employer for an OHS breach. Not surprisingly, there was hot debate from the Opposition in the NSW Parliament about this change and the Government was always going to have its way.
Will the changes to OHS law make work places safer or affect the frequency of prosecutions or make it easier to defend a prosecution? The answer is, as the late Zhou En-lai, formerly Premier of China said, when asked what effect he though the French Revolution had had on the course of European history: “Too early to say”.
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace issues from OHS obligations, contracts of employment and policy updates to termination of employees, redundancy correspondence and warning letters because Helping You is Our Business.
Many employers use employment contracts that are out-dated, or may not have employment contracts for their staff at all. Are the employment contracts your business uses up to scratch?
Employers need to ensure their employment contracts comply with the current legal requirements. This means contracts need to be compliant with the National Employment Standards and the applicable Modern Award.
The National Employment Standards provide for minimum entitlements, such as hours of work, leave entitlements, flexible working arrangements and more.
For example, Business Pty Ltd is employing a new full-time administrative assistant. All Business Pty Ltd’s full-time staff work a 40 hour week. Business Pty Ltd has been using the same style employment contract since 2003. The employment contract states that the new administrative assistant must work 40 hours per week, and anything more than that is considered overtime.
Business Pty Ltd hasn’t realised that the National Employment Standards provide that full-time employees are to work a maximum of 38 hours per week. While an extra 2 hours work per week will likely be considered to be ‘reasonable additional hours’ which the employer may reasonably ask the employee to work, the appropriate award overtime provisions will apply to those 2 hours.
For example, if the new administrative assistant will be covered by the Clerks – Private Sector Award, then he or she will need to be paid time and a half for those extra 2 hours of work every week.
Business Pty Ltd needs to ensure that their employment contract is amended to meet these minimum requirements.
So, are the employment contracts your business uses up to scratch?
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues from contracts of employment and policy updates to termination of employees, redundancy correspondence and warning letters because Helping You is Our Business.
Click here for more information on Jessica Simmonds.
In an earlier article I spoke about the rules that govern a corporation. These can be either a specifically designed set of rules called a “Constitution” or a set of standard rules call “Replaceable Rules” set out in the Corporations Act 2001.
The question arises which is better?
In my view using a specially designed Constitution has many advantages over being governed by the Replaceable Rules set out in the Act including:
A Constitution enables you to have several classes of shares with different voting rights, dividend rights and rights to capital upon winding up which can be useful in achieving objectives like income splitting, dividend streaming and selective control. This is not available under the Replaceable Rules.
The Constitution normally contains comprehensive rules regarding the calling and holding of meetings, passing of resolutions, whereas these provisions are not contained in the Replaceable Rules.
A Constitution can contain comprehensively drafted guidelines on the day to day management of the company as compared to the brief provisions in the Replaceable Rules.
The Replaceable Rules are not applicable to proprietary companies with the same person as the sole director and shareholder.
The Replaceable Rule provisions regarding the appointment of directors can allow one group of shareholders to take control of a directors meeting in the absence of the usual directors which can be undesirable.
The Constitution provides a comprehensive published document which is easily assessable by its members and available to the company’s bankers and other parties.
The Replaceable Rules cannot be used for special purpose companies such as superannuation trustee companies.
A company’s Constitution can be modified and amended in accordance with the wishes of its members by the calling and passing of a special resolution.
Simply put, a Constitution give it’s shareholders flexibility and greater certainty.
If you have questions regarding the operation of a corporation please contact our business law team at Everingham Solomons where Helping You is Our Business.
If you are an employer faced with the difficult task of making employees redundant, it is important to know what obligations you have and what steps you ought to take to meet those obligations.
If you are an employee faced with redundancy, it’s important to know your rights and ensure you receive the correct entitlements.
What does redundancy mean?
A redundancy occurs when employment is terminated because the employer decides they no longer want that person’s job to be done by anyone, or because the employer becomes insolvent or bankrupt.
In order for a redundancy to be a ‘genuine redundancy’, it must be shown that:
The job will not be done by anyone else and the position will not be filled by any other person.
The requirements in the applicable modern award, enterprise agreement or industrial instrument to consult with the employee about the redundancy have been followed.
Redundancy pay
Redundancy pay may be up to 16 weeks of ordinary pay and is calculated upon the length of service. There is no legal requirement to pay redundancy pay to employees who have been employed for less than one year. Redundancy pay is paid in addition to any other entitlements, such as outstanding wages and accrued leave entitlements.
Steps to redundancy
Firstly, an employer ought to consider all options and alternatives to redundancy, like redeployment, job sharing and reduced overtime.
Secondly, an employer should meet with the employee who is to be made redundant to explain the situation and give him or her opportunity to ask questions.
Thirdly, written notice of the redundancy ought to be given to the employee.
Whether you are an employer or employee, Everingham Solomons will be more than happy to assist you with any employment queries because Helping You is Our Business.
Click here for more information on Jessica Simmonds.
At present, business name registrations have been handled on a state by state basis by differing departments in each state. For example Fair Trading in NSW and Consumer Affairs in Victoria.
