The recent government webinar – getting your business ready for the 2016/2017 financial year

Just in case you missed the recent webinar held by representatives from the ATO, ACCC, ASIC and Fair Work Ombudsman, here is the list of important links shown as part of the above webinar:

Question

Fair Work Ombudsman:

Australian Competition & Consumer Commission: B2B UCT (Business To Business Unfair Contract Terms)

Excessive card surcharging

Scams

Australian Securities & Investments Commission:

Australian Taxation Office:

What does it mean to be proactive, rather than reactive?

We have all heard of the saying – “be proactive, rather than reactive” – but what does that actually mean, particularly when you are talking in the context of a legal firm? It means taking steps sooner rather than later to avoid issues arising, rather than only taking steps once the issue has arisen – which usually takes more time, money and worry. In the legal context, this can best be demonstrated by looking at some of the issues we have dealt with in recent years, issues which could have been avoided if the client had their legal affairs in order at the start:

Situation 1OTP An employer was in dispute with an employee as to what the employee’s entitlements were.  The employee claimed that ….  How could this have been avoided?  By having a customised employment agreement drawn up and signed off by both parties at the time that the employee commenced. Commercial

Situation 2 After operating her business successfully for a period of years, a client allowed her sister to start working in the business as well, and after a short time, transferred ownership of the business name to her sister, and also allowed her to operate the bank account.  The client had a falling out with her sister, following which her sister proceeded to operate her own business under the same trading name, took some of the business’ core equipment, and continued to draw monies out of the bank account.  Neither the client nor the sister knew how to resolve the dispute between them.  How could this have been avoided?  By having a partnership agreement drawn up between them, they could set out the circumstances within which the partnership would come to an end, and what steps would need to be taken to those circumstances.

Situation 3ACCC A client was challenged by the ACCC about the labelling on its product.  How could this have been avoided?  By having a specialist lawyer review and approve the proposed labelling before it went into production.  The review would ensure compliance with labelling requirements regarding:

CommercialSituation 4 At the end of the fixed term of the franchise agreement, the franchisee was unsure as to whether or not they should renew the franchise agreement for a further term.  In the meantime, the franchisee continued to operate the franchised business, giving the franchisor the impression that the franchise had been renewed (although documents had not been signed).  When the franchisee decided to exit the franchise, the franchisor attempted to bind the franchisee to the terms of the franchise agreement, and sought damages.  How could this have been avoided? By approaching a specialist franchise lawyer at the end of the fixed period, the franchisee could have been guided as to what to do and not to do, to preserve their rights regarding the agreement, and to avoid creating the impression that the franchise agreement was continuing.

Situation 5 A client entered into negotiations with a prospective purchaser of its business, and subsequently signed off on a 1 page document by which the client agreed to sell the business to the purchaser for a fixed price.  This created a number of issues – the real asset to be sold was not the business as such, but the client’s shares in a Pty Ltd company which owned the business.  The lease was in the company’s name, and any change in control of the company lessee required the landlord’s approval.  Some of the business assets were under lease, and not owned by the company as such.  Although the client and the purchaser had negotiated to settle the deal within a matter of days, the matter eventually settled after a number of months because of the numerous issues to be dealt with.  How could this have been avoided?  By contacting lawyers at first instance, the 1 page document could have been drafted with the correct details and with the correct procedures, ensuring that the deal was negotiated and settled within a reasonable time frame and with correct documentation in place.

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Statements like “I don’t need a lawyer” or “I haven’t got the time/energy/money to get a lawyer involved in this” could end up costing you more time/energy/money in the long run.

Please contact the team at Shire Legal to discuss your situation and see how we can help you to minimise the time/energy/money spent in resolving any issues you may have.

ALERT: High Court hands down significant decision regarding employment contracts

8808432-lawThe High Court has found that a term of mutual trust and confidence should not be implied into employment contracts.  What does the term ‘trust and confidence’ mean? It refers to conduct, either on behalf of an employee or employer, which is contrary to the interests of the other and serious enough to destroy or seriously damage the relationship of trust and confidence between them.   Click here to read more …

Small businesses are no longer exempt from work health and safety compliance

Since “harmonisation” of workplace safety laws in 2012, to create national uniform regulation of work health and safety in Australia, a “person conducting a business or undertaking” (“PCBU”), no matter how large or small, has an obligation to provide:

  • safe premises
  • safe machinery and materials
  • safe systems of work
  • information, instruction, training and supervision
  • a suitable working environment and facilities.

This is done by ensuring:

  • the provision of first aid equipment for the workplace
  • each worker at the workplace has access to the equipment and facilities for the administration of first aid
  • that an adequate number of works are trained to administer first aid or workers have access to an adequate number of trained persons (Work Health and Safety Regulation 2011).

The provision of first aid will require the PCBU to take into account all relevant matters, including :

  • nature of  the work being undertaken
  • hazards in the workplace
  • size and location  of the workplace
  • number and composition of workers and others (including contractors, subcontractors, volunteers and visitors) at the workplace.

WHSOnce these factors have been considered you can then determine the appropriate first aid kit contents for your workplace, as well as the adequate number of trained first aid providers required.

The type of work being undertaken will be a factor in determining what are an adequate number of first aid kits and trained first aid providers.  For example, a business handling hazardous chemicals may require a higher number of first aid kits and providers than a legal office with the same number of workers.

These laws are designed to require employers to make a more proactive role to ensure safety in the workplace – not only for employees but anyone else carrying out any form of work for the business, such as contractors, sub-contractors and consultants.

Shire Legal can assist its clients with:

  • safety audits, to ensure compliance with relevant rules and regulations (using suitably qualified WHS experts where appropriate);
  • reviewing existing policies and procedures for compliance and if necessary, introducing work health and safety systems to ensure due diligence;
  • assisting with initial management of workplace injury;
  • assisting with employee issues, such as drugs and alcohol, stress and mental disorders and rehabilitation;
  • accident investigation and assisting with WorkCover investigations;
  • conducting training seminars specifically tailored for your particular business and audience.

New workplace anti-bullying laws are now in place

Australia’s new workplace anti-bullying laws commenced on 1 January 2014, providing your employees, volunteers, work experience students, interns and apprentices with the right to apply to the Fair Work Commission directly if they feel they have been bullied. The Commission has the power to make an order for the bullying to be stopped.

What is considered bullying?

Under the amended law, bullying happens when:

  • an individual or group repeatedly behaves unreasonably towards a worker or group
  • the behaviour creates a risk to health and safety.

Bullying doesn’t include:

  • one off instances of insensitivity or rudeness, or
  • reasonable management activities carried out in a reasonable manner.

BullyingWhat does this mean for employers?

Firstly, it is important to note that the anti-bullying laws only apply to “constitutionally covered businesses”, such as corporations (e.g. Pty Ltd), sole traders in ACT and NT.  This means that the anti-bullying laws do not apply to unincorporated associations such as partnerships or sole traders in the States (e.g. NSW).

If the employer does fall within the definition of a “constitutionally covered business”, and if they haven’t done so already, it should seriously consider implementing a Fair Work compliant workplace bullying policy.

Guidance as to how the Fair Work Commission would deal with an anti-bullying claim can be found in its Anti-Bullying Case Management Model.

What about other employers not covered by the Federal law?

State-based employers (such as sole traders and partnerships) still need to be mindful of bullying claims being made by employees, which may be in breach of the State-based workplace health and safety laws (such as the NSW Work Health and Safety Act 2011 – in particular, section 19 regarding the employer’s primary duty of care to its employees).

Workcover NSW recommends that victims of alleged bullying “check to see if [their] workplace has a policy to prevent, report and deal with bullying.”  To assist employers, there is plenty of information on the Workcover NSW website in relation to bullying, such as:

Contact the team at Shire Legal if you have any questions about bullying in the workplace, or if you need assistance implementing an appropriate anti-bullying policy.

How to avoid firing / being fired after the work Christmas party

The annual work Christmas party is usually the one and only opportunity for workmates to really let their hair down, socialise away from the usual constraints of work and celebrate the festive season … a celebration which unfortunately has the potential to result in a whole host of legal issues for the employer, such as alcohol-fuelled violence and other inappropriate conduct.

Should a worker be concerned about their conduct at the work Christmas party?  Should a boss be entitled to fire someone because of their conduct at the work Christmas party?christmas-excitement-7284575

Employers have an over-riding responsibility to ensure the health and safety of their employees at all times, and therefore have an obligation to take all reasonable steps to protect their staff.  Ultimately, it comes down to ensuring that there is a policy in place regarding the Christmas party, which all employees should be aware of – sending a simple email to all staff prior to the event is not too hard, but will go a long way to protect your employees.  After all, despite the party being held outside of normal work hours and/or off-site, workplace policies – and employers’ responsibilities and obligations – more often than not still apply.

Employers should inform all employees of expectations regarding conduct at the Christmas party (e.g. all employees should act responsibly), and also set out the types of behaviour that will be accepted and not accepted (e.g. an expectation that alcohol will not be consumed in excess).  In addition, it is a prudent time for employers to review the workplace’s human resources policies regarding harassment (including sexual harassment), Workplace Health & Safety (this should cover physical injury at the party, whether or not fuelled by excessive alcohol consumption), and responsible service of alcohol.

As always, it is a lot easier to be proactive rather than reactive.

Nevertheless, despite the employer taking all reasonable steps prior to the party to ensure that it goes off without a hitch, issues may still arise.  Therefore the employer should ensure that the workplace also has a policy to deal with post-party incidents.  If an employee is concerned about an incident at the party, the employee should be assured that he or she can confidentially discuss the incident with human resources.

Remember that the risks are not just confined to the Christmas party – this time of year tends to bring all sorts of conduct out of employees, as they prepare for holidays and other end-of-year celebrations – this could include an offensive Kris-Kringle present, an unwelcome comment, or inappropriate “joke staff awards”.