News & Insights

From 10:30 pm, 29 March 2020, the monetary thresholds for substantial interests attracting the obligation to obtain Foreign Investment Review Board (FIRB) approval have been reduced to $0.

On Saturday 28 March 2020, the Fair Work Commission (FWC) full bench (presided by President Iain Ross, Deputy President Richard Clancy and Commissioner Michelle Bissett) granted a joint application made by the Ai Group and Australian Chamber of Commerce and Industry on 26 March 2020 to insert a COVID-19 flexibility schedule in the Clerks Private Sector Award (Award). The application was supported by the Australian Services Union and the Australian Council of Trade Unions.

Further to our update last week, the government has now moved to impose export controls on COVID-19 goods during the present ‘human biosecurity period’.

The COVID-19 pandemic is having an unprecedented impact on the economy. The effects of escalating government counter-measures will change the way we do business for the foreseeable future.

The impacts of COVID-19 mean that key aspects of a construction project may need to be reconsidered. The correct approach will depend on a range of factors, including the stage at which your project is impacted.

In light of the ongoing and increasing impact of COVID 19, here we summarise a few relevant issues in the international supply chain, including at our national border.

The COVID-19 medical emergency highlights the importance of having a Will and Powers of Attorney in place. Now is the time to ensure you – and your loved ones – are protected by guaranteeing you have valid and effective medical and financial documents prepared.

With the COVID-19 pandemic continuing to spread and both State and Federal Governments announcing changes to their response policies daily, there has been understandable concern about the continued operation of the supply chain domestically and internationally.

All Australian organisations are facing unfamiliar challenges and pressures as they manage and adapt their business operations in these unprecedented times. It is definitely not “business as usual”.

However, it is important for businesses not to lose sight of their privacy and data protection obligations during this time. This is particularly so as businesses are collecting more detailed and sensitive information about employees, contractors, visitors and other individuals that interact with their business to help manage the spread of COVID-19 and many workplaces have moved to remote working arrangements.

Today’s M&A deal environment is uncertain. Whilst it is still relatively early days, at the time of writing, COVID-19 has already significantly impacted the basic logistics of running the sale process as countries close borders and ban employees from travelling.

Last night, the Fair Work Commission granted a joint Australian Hotels Association and United Workers Union application to insert a COVID-19 flexibility schedule in the Hospitality Industry (General) Award 2010 (Award), which will operate from 24 March 2020 until 30 June 2020, with a possible extension upon application.

To support the hospitality industry, the Victorian Commission for Liquor Licencing and Gambling Regulation (VCGLR) has announced a special temporary limited licence free of charge available to current liquor licensees that may be granted within 72 hours from application lodgement.

On Monday 23 March 2020, the federal parliament passed the Coronavirus Economic Response Package Omnibus Act 2020 (Cth) implementing a range of urgent measures announced by the government on Sunday 22 March 2020.

On 23 March 2020, the Federal Government urgently passed legislation to introduce economic stimulus measures to address the impact of the coronavirus pandemic.

The two packages of measures, worth $17.6 billion and $66 billion, combined with the relief provided by the Reserve Bank of Australia and the Government’s support to smaller lenders, brings total support to $189 billion.

The current COVID-19 situation brings uncertain and unsettling times.

Rigby Cooke has received several enquiries from landlords and tenants alike regarding their rights and obligations under their lease.

As part of the 4 yearly review of modern awards (which commenced in 2014 and is continuing), a Full Bench of the Fair Work Commission (FWC) has decided to replace and/or insert an
annualised wage clause in a number of awards.

The news headlines often report on defamation claims filed by high profile celebrities and politicians.

However, a recent New South Wales decision concerning a child care worker and his ex-employer, a small private sector child care centre shows any Australian workplace is potentially at risk of a defamation claim.

On 12 March 2020, the Government announced a stimulus package totalling $17.6 billion to address the economic impacts of the Coronavirus outbreak. Included in the package are tax incentives and cash flow assistance for businesses, in order to support investment and help small businesses manage short-term cash flow challenges.

Rigby Cooke Lawyers’ Planning and Environment team continue to be recognised for their outstanding work in the planning space in Victoria.

Andrew Hudson has recently co-authored a white paper with the Customs Brokers and Forwarders Council of Australia, alongside Scott Carson and Gerardo D’Angelo, with additional contributions from Adam Butler, Tim Gray and Taras Lubczyk.

With the recent introduction of the offence of workplace manslaughter in Victoria, it is important for organisations and their officers to understand the risks should they fail to maintain their health and safety obligations and how the consequences differ across the nation.

Is it lawful? Can it be done in secret? A recent case sheds light on how and when you can record workplace conversations.

On 6 March 2020, the legislation introducing the Superannuation Guarantee Amnesty (amnesty) received Royal Assent.

From 1 April 2020, in a significant extension to the director penalty regime, company directors will be personally liable for unpaid GST (including luxury car tax and wine equalisation tax).

Although short-stay accommodation is not a new concept, the introduction of AirBnB (also known as ‘AirBed and Breakfast’) and similar short term letting agencies created a worldwide phenomenon resulting in an upsurge in short-stay rentals.

Rigby Cooke Lawyers’ Workplace Relations team continues to be recognised for their outstanding work in Employment Law and Workplace Health & Safety Law in Victoria.

I had previously published an article on 28 January 2020 with some early thoughts on the possible impacts of the coronavirus. However, as matters have progressed, I thought that it warranted an update.

Are you considering purchasing Victorian property through a discretionary trust? Think again, because from 1 March 2020 the State Revenue Office (SRO) will deem all discretionary trusts to constitute foreign purchasers.

This article was first published by AirCargo Magazine.

Well, it finally happened. 1,317 days, two elections and a number of pieces of legislation after the UK referendum voted to leave the European Union (EU), the departure procedures commenced.

This article was first published by Daily Cargo News.

As I write these words (8 January 2020), we are swaying on the precipice of escalation of warfare between the US and Iran. We are also stunned by the ongoing bushfire disaster which is taking the lives of animals and people as well as destroying properties and countryside.

The High Court decision on the tariff classification of ‘Vita gummies’ and ‘Garcinia weight-loss preparation’. 

We have previously written at length on decisions of the Administrative Appeals Tribunal (AAT), or State or Federal Courts on the classification of goods for customs purposes. The classification of goods is a vital process as many things follow from that classification including rates of customs duty, the need to pay dumping or countervailing duty and whether the goods are prohibited or need permits or licences.

This article was first published by Daily Cargo News.

As I write this article, news of the spread of the ‘coronavirus’ becomes worse on a regular basis. According to today’s media, nearly 60 million people in China’s largest cities are in lockdown, there are 2700 confirmed cases and 80 people have died.

This article was first published by Daily Cargo News.

Only the beginning of the end of tension?

In much the same way that Australia welcomed rain this week, the release of ‘Phase One’ of the US and China Agreement had led to some degree of relief and confidence in the commercial and financial world.

The Australia – Hong Kong Free Trade Agreement (A – HKFTA) starts today, 17 January 2020. This will include preferential rates of customs duty for certain classifications of goods along with more opportunities for investment and trade in services.

The ‘active asset test’ for the purpose of accessing the small business capital gains tax (CGT) concessions has effectively been narrowed, due to a Federal Court decision which held that land used to store business assets and materials was not an active asset. The decision sets a new ‘direct functional relevance’ test, which will create difficulty for business owners in accessing the concessions.

This article was first published by Daily Cargo News.

While much debate surrounds the operation of our anti-dumping legislation in practice, it may be a surprise to some that we did not create the regime unilaterally. Our regime takes its origin from Article VI of the General Agreement on Tariffs and Trade 1994 (GATT).

Governments and, increasingly big companies, are using tender processes (including Request for Proposals and Request for Tenders) to award contracts to Australian manufacturers.

Australian manufacturers know that safety must be part of the business culture. Manufacturing has always carried a high risk of physical injury.

This article was first published by Daily Cargo News.

I have been in the fortunate position of being involved with the Customs Brokers and Forwarders Council of Australia (CBFCA) for a number of years.

Legislative measures are currently before Parliament, which will operate to deny foreign residents the ability to access the capital gains tax (CGT) main residence exemption upon the disposal of their Australian dwelling.

The decision of the Victorian County Court in Technology Swiss Pty Ltd and Ecology SRL v Famous Pacific Shipping Pty Ltd which was delivered on 30 September 2019 and published on 13 November 2019 has already received some attention and commentary within industry.

The Labour Hire Licensing Act 2018 (Act) establishes a licensing scheme to regulate labour hire providers and labour hire users in Victoria.

This article was first published by Air Cargo.

On occasion, life has a habit of appearing to imitate art.

Both Beckett’s ‘Waiting for Godot’ and Kafka’s ‘The Castle’ are now widely being considered as contemporary literary representations of the UK’s tortured Brexit process.

Readers may be aware that on 1 October 2018 changes to the Chain of Responsibility (CoR) provisions of the Heavy Vehicle National Law (HVNL) were implemented. These changes imposed a primary duty on each party in the supply chain to ensure that everything reasonably practical to guarantee safety in transport and reduce the risk of harm and loss, is done.

This article was first published by Daily Cargo News.

The Australian Trusted Trader Programme (ATTP) is one of the lead offerings of the Australian Border Force (ABF) and represents an example of how industry and government can work closely together to co-develop a program which has largely delivered on its intended outcomes and is actively supported by industry.

This article was first published by Daily Cargo News.

As much of Australia’s focus was taken by the Melbourne Cup carnival, the leaders of 15 of the 16 nations negotiating the Regional Comprehensive Economic Partnership (RCEP) announced the conclusion of ‘text-based’ negotiations with formal signing now expected in 2020.

Amendments to the Owner Drivers and Forestry Contractors Act 2005 (ODFC Act) passed the Victorian Parliament on 12 September 2019, granting greater rights to contractors who own and drive their own vehicles.

Large penalties for ‘providing’ or ‘using’ unlicensed labour hire in the Transport industry

The Labour Hire Licensing Act 2018 (Act) establishes a licensing scheme to regulate labour hire providers and labour hire users in Victoria.

Linfox Australia Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia [2019] FCAFC 131

The Full Court of the Federal Court recently handed down a decision in Linfox Australia Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia [2019] FCAFC 131 (Linfox Case) in relation to fuel tax credits claimed by Linfox pursuant to the provisions of the Fuel Tax Act 2006 (Cth) (FTA).

The Commonwealth Notifiable Data Breaches (NDB) scheme has now been in place for over 18 months and has been widely publicised. Your organisation should be aware of its obligations and have a data breach response plan in place so that quick action can be taken if a breach occurs or is suspected to have occurred.

Businesses that provide road freight services have increased tax compliance obligations as they are now subject to the Government’s Taxable Payments Reporting System (TPRS).

A recent Federal Court judgment demonstrates it is more crucial than ever that employers keep accurate records in accordance with the requirements in the Fair Work Act 2009 (Cth) (FWA) and Fair Work Regulations (Regulations).

The sale of a person’s main residence (ie their home) is generally exempt from capital gains tax. This exemption is ‘carried through’ to beneficiaries or executors of deceased estates who seek to dispose of the deceased’s main residence, where certain conditions are satisfied.

This article was first published by Daily Cargo News.

I wrote an earlier article on Brexit for this publication and thought it may be a good time to review the situation and whether there was any further clarity on the position.

There are new signs that the Australian property market is on the rebound. As the property market recovers, so does the credit market and companies will increasingly seek financing for their business. Financing may take many forms: revolving credit loans, loans to finance the acquisition of a target company, or construction loans, to name a few.

On 18 September 2019, the Treasury Laws Amendment (Recovering Unpaid Superannuation) Bill 2019 (the Bill) was introduced into Parliament. The Bill seeks to re-introduce a superannuation guarantee amnesty, following the previous amnesty legislation lapsing due to the Federal Election being called in April 2019.

Rigby Cooke Lawyers’ Wills & Estates team continues to be recognised for their outstanding work in the Wills & Estates space in Victoria.

This article was first published by AirCargo magazine.

Now that the 46th Federal Parliament has resumed and the commencement formalities have been completed, it is a good time to review the status of our Free Trade Agreement (FTA) agenda along with other new initiatives aimed at facilitating trade.

This article was first published by Daily Cargo News.

Even with the current political pressures around global trade and the supply chain, there seems to be little prospect that there will be no reduction in goods being moved through the international supply chain.

In a Bill currently before Parliament, property investors will be denied deductions for holding and financing costs incurred in owning vacant land. Ordinarily, such costs would be deductible where the land is intended to be used for the purpose of producing assessable income.

The Internet can offer consumers a convenient way to access therapeutic goods, but online purchases of prescription-only medicines can be extremely dangerous.

Key Points:

• In a recent decision of the Supreme Court of Victoria, the Court held that an appeal under the new Insolvency Practice Rules against an insolvency practitioner’s determination on a proof of debt at a meeting of creditors is a hearing de novo (ie a fresh hearing) without any need for the appellant to identify error by the original decision-maker.

Victoria’s family provision legislation was substantially amended by the introduction of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014. This Act had the effect of reducing the classes of claimants that may make a claim for provision from a deceased estate, and also the number of claims being filed in Victorian courts against estates.

Remaining married can leave your Will open to challenges

We have seen a number of recent deceased estates where a deceased person remained married at the time of their death, despite having separated from their spouse for a significant period of time prior to their death.

The Labour Hire Licensing Act 2018 (Act) establishes a licensing scheme to regulate labour hire providers and labour hire users in Victoria.

This article was first published by Daily Cargo News.

The start of a new financial year is often used by the business community to launch new initiatives into the market. However, in this case, by media release on 1 July 2019, the Australian Border Force (ABF) as a division within the Department of Home Affairs (DHA) provided details of the establishment of a new ‘Customs Group’ within the ABF.

This article was first published by AMTIL.

Are you overpaying land tax based on out of date council valuations?

The 2019-2020 Victorian State Budget reported that land tax revenue in 2019-2020 is expected to increase to $3.7 billion. This is a significant increase from the $1.2 billion raised in 2009-2010.

The term seems to have first arisen in the early 1990s with reference to an ‘open distributed ledger that can record transactions between two parties efficiently and in a verifiable and permanent way’ and was developed to serve as a ‘public transaction ledger’ for the bitcoin cryptocurrency.

With the ever increasing responsibility on companies and their directors and officers to ensure safety and security in the workplace, as well as to ensure compliance with the Heavy Vehicle National Law (HVNL), various forms of workplace surveillance are increasingly being used by employers in the transport and logistics industry.

Safety v privacy: In a landmark decision, the Fair Work Commission (FWC) Full Bench has held that an employee was unfairly dismissed for refusing to use biometric scanners to sign in at work.

This article was published in the July print edition of Daily Cargo News and updated for recent events

In the week leading to the recent Federal election, the Minister for Industry Science and Technology (Minister) released her decisions as to the imposition of interim dumping and countervailing duties on steel pallet racking and PVC covered electrical cabling

In the week leading to the Federal election, the Minister for Industry Science and Technology (Minister) released her decisions as to the imposition of interim dumping and countervailing duties on steel pallet racking and PVC covered electrical cabling.

The Therapeutic Goods Administration (TGA), currently uses a standardised, risk-based international classification system (risk-based system) to assess and approve the use, consumption and implantation of medical devices in Australia. The same system is used in the United States, the European Union, the United Kingdom, Canada and Japan.

Accommodating a growing client base in Melbourne’s south-east, Rigby Cooke Lawyers has opened a business hub in Dandenong South to serve business located in the region.

Adjustments to wages and remuneration in the transport industry commence today.

The following tables detail the new minimum rates of pay for part-time and full-time employees under various modern awards, applicable to adult employees in the transport industry.

Accommodating a growing client base in Melbourne’s south-east, we are thrilled to announce that we will be officially opening a South East Business Hub in Dandenong South on the 2 July. Check out the progress of our fit out which has been undertaken by Canopy Fitouts.

This article was first published in AirCargo magazine, June 2019.

Those in industry (let alone anyone with an interest in world news) would be painfully aware that global trade is under massive pressure at the moment. Examples of these threats are everywhere and if they come to pass, the consequences will be uniformly bad. Trade and global integration has been a driver of financial and social improvement with the World Bank estimating that more than a billion people have been lifted out of poverty over the last 25 years.

The Fair Work Act 2009 (Cth) (FW Act) does not specifically deal with whistleblowers, and the Federal Government has previously rejected proposals to amend the FW Act to link disclosure rights under public and private sector whistleblowing laws with the General Protections in Part 3-1. That said, whistleblowers can still utilise provisions in the FW Act to gain additional protection, including where their disclosure may not actually qualify for protection under whistleblowing laws.

Property developers who enter into agreements to develop Victorian land with an unencumbered value of over $1 million are at significant risk of incurring a duty liability, under new legislation that received Royal Assent on 18 June 2019.

The last few years have seen several high profile cases of senior executives being ‘caught out’ providing fake or misleading information on their CVs/ job applications.

What is the employer’s duty of care?

Employers have a duty under workplace health and safety legislation, including the Occupational Health & Safety Act (2004) (Vic), to provide and maintain (as far as is reasonably practicable) a safe workplace. In addition, employers have a duty to monitor the health of their employees. Criminal prosecution, penalties and potentially imprisonment can result if these statutory duties are breached.

20 June 2019 – Correction to article in footnote 5

Annual Wage Review Decision

On 30 May 2019, the Fair Work Commission handed down its 2019 Annual Wage Review Decision. The key elements of the decision are:

This article is co-authored by Andrew Hudson and Bethany Clark 

During each year we discuss various important decisions handed down by the Tribunals and Courts.

Rigby Cooke Lawyer, led by property partner Darren Marx, recently acted for Stronghold Investment Management on its acquisition of the Cardinia Club from Pakenham Racing Club for $16m. The well established entertainment venue has 105 Electronic Gaming Machines, a large bistro, upmarket sports bar and multiple function rooms. Brisbane based Stronghold is a specialist Business Park and Hospitality sector Fund Manager.

Chapter 11 of the Parliamentary Joint Committee on Corporations and Financial Services ‘Fairness in Franchising Report’ – published in March 2019 – covered the termination of franchise agreements.