News & Insights

In the third of our Wills and Estates 101 series we speak with Rigby Cooke Lawyers Wills, Trusts and Estates practice lead, Rachael Grabovic, to answer questions around Superannuation death benefits.

The Australian Taxation Office (ATO) has recently released a Guidance Note (GN 2020/1) which contains information for employers, payroll software providers and intermediaries who may need to change the way they calculate their superannuation guarantee obligations.

The JobKeeper payment scheme was announced on 30 March 2020 with the objective of providing financial support to entities to assist with the impact of COVID-19. Since that time, there has been a significant amount of information released to explain the complex operation of the scheme, including Treasury Rules, Australian Tax Office (ATO) rulings and guidelines, together with amendments to the Fair Work Act 2009 to enable employers to temporarily vary work arrangements for eligible employees.

In a busy week for the courts and the Fair Work Commission (FWC), three significant decisions have been handed down related to COVID-19 issues. Brief summaries are set out below:

In the second of our Wills and Estates 101 series we speak with Marcus Schivo, a lawyer in our Wills, Trusts and Estates team, to answer common questions around Probate and what you need to do.

Turn your mind to the other businesses with which you share personal information – they may be based in Australia or overseas, they may receive personal information about a single customer (for example, to facilitate delivery of an order), or whole databases (for example, to carry out marketing campaigns or store your CRM).

There have been a number of developments in recent weeks that all transport and logistics operators with employees need to be aware of.

In the first of our introductory series which looks into the world of Wills, Trusts and Estates, we speak to Rosa Bazzanella a Senior Associate at Rigby Cooke Lawyers about some of the questions she frequently encounters in her work.

This article was first published on 12 May 2020 by Daily Cargo News.

I have previously written the effects of COVID-19 in the international supply chain as well as having presented at meetings and webinars. This included a recent webinar with the Customs Brokers and Forwarders Council of Australia, which was attended by more than 300 members.

It is a common misconception that ‘personal information’ is a reference to sensitive information like health, medical or financial information. This is not true. Personal information captures any information about an identifiable person. 

Recently we discussed how the COVID-19 pandemic has brought to the forefront the importance of having a Will and Powers of Attorney in place. It has also highlighted the challenges of arranging and executing these documents whilst in lockdown.

The worldwide impact of COVID-19, which has resulted in countries around the world shutting down their borders and international travel being banned, requires companies to operate online whenever possible.

One of the major tasks for government’s around the world are to adopt measures which may assist business to recover and thrive as they plan to move out of COVID– 9 restrictions. As much as national governments have committed to generally keep borders open, there remains the need to actively take action to ensure that commitments are met and that new initiatives are adopted to support further enhancements to the trade environment.

As Privacy Awareness Week 2020 draws to a close we reflect on what businesses can do to ‘Reboot your privacy’ as well as some current hot topics in the Australian privacy space:

• Many Australian businesses must disclose when they have been affected by a data breach
• While reputational damage is a critical risk for businesses, there is also the threat of monetary penalties of up to $2.1 million and orders of uncapped compensation
• A representative complaint – similar to a class action – has been made against Optus on behalf of a group of individuals affected by an alleged breach in 2019.

In further recognition of the difficulties faced by companies in meeting strict corporate compliance requirements in a COVID-19 environment, the Treasurer released yesterday a ministerial determination permitting company general meetings to be held virtually and modifying the way companies can execute documents.

We’re a small business. The Privacy Act and Notifiable Data Breach Scheme don’t apply to us.

Generally, businesses do not need to comply with the Privacy Act until their annual turnover reaches $3 million. However, some businesses are required to comply regardless of their size.

On Wednesday 29 April 2020, the Australian Federal Government and the Queensland Government announced that works on 22 jointly funded projects would be brought forward under the Roads of Strategic Importance (ROSI) initiative. The full announcement is available here.

The Victorian Government recently announced a range of tax relief measures in response to COVID-19 to assist landlords and businesses. The State Revenue Office (SRO) has now provided further guidance on these initiatives.

On 1 May 2020 the Victorian Government passed regulations for the COVID-19 Omnibus (Emergency Measures) (Commercial Leases and Licences) Regulations 2020 (the Regulations) giving substance to the National Cabinet Mandatory Code of Conduct (the Code).

• Privacy Awareness Week – an opportunity for all organisations to ‘Reboot your privacy’
• Organisations are responsible for the actions of their employees – this calls for innovation when ensuring the security of personal and confidential information in the “home office”
• To be effective, privacy and security arrangements must include appropriate training, clear and documented policies and procedures and management oversight.

The National Heavy Vehicle Regulator (NHVR) has accepted an enforceable undertaking from Laing O’Rourke Australia Construction Pty Ltd (Laing O’Rourke). This is the first enforceable undertaking of its kind to be accepted by the NHVR.

During the current pandemic, the focus of many has been on the manufacture of the medical equipment required for the treatment of COVID -19 and their urgent movement through the international supply chain.

On 8 April 2020, the Parliament passed legislation to give effect to the Government’s JobKeeper scheme and to amend the Fair Work Act 2009 (Cth) (FW Act) to give eligible employers greater flexibility to modify employees’ working hours, days, duties and location to minimise the impact of the COVID-19 pandemic on their business and seek to preserve jobs.

Court of Appeal Superannuation Case

Managing your own self-managed superannuation fund (SMSF) brings with it estate planning issues. In addition to contemplating who will be entitled to receive your superannuation death benefit on your death you must also consider who will take control of your fund if you were to lose capacity or die.

Rigby Cooke is pleased to announce that two of our Partners, Andrew Hudson and David McLaughlin have been included in the Best Lawyers in Australia rankings for 2021.

• ASIC has recently announced a one month extension for the lodgement of corporate reports
• Extension is available to unlisted entities.

Following on from our previous article regarding leasing rights and obligations during the current COVID-19 pandemic (COVID-19), there have been further developments announced by the Federal Government. If you are after a definitive answer, we’re not quite there yet, but we are getting closer. Code

• Landlords should register security interests on the PPSR in cash security deposits or cash bonds paid under a commercial or retail leases

Last night, the Parliament passed legislation to give effect to the Government’s JobKeeper scheme and to amend the Fair Work Act 2009 (Cth) (FW Act) to give eligible employers greater flexibility to modify employees’ working hours, days, duties and location to minimise the impact of the COVID-19 pandemic on their business and seek to preserve jobs. The legislation became law after receiving Royal Assent today.

Many employers seeking to take corrective action under the Superannuation Guarantee Amnesty (the Amnesty) may currently be so overwhelmed by the impacts of the COVID-19 pandemic that they do not consider they have the financial resources to apply for the Amnesty.

This article was first published on 6 April 2020 by Daily Cargo News.

At last, the UK has finally started its process to depart the European Union (EU). However, there is still some real uncertainty about what will remain at the end of the departure process.

In response to the adverse impact that the COVID-19 pandemic will have on Australian companies’ ability to hold annual general meetings (AGMs), ASIC issued a guidance note – 20-068MR on 20 March 2020 (Guidance):

The COVID-19 pandemic and the restrictions implemented by both Federal and State Governments to combat the pandemic have had a substantial impact on businesses and their employees.

On 1 April 2020, the Australian Federal Government announced a new financial package to support exports of seafood to overseas markets as well as to increase funding of the Export Market Development Grant scheme (EMDG). This is one of a series of financial support packages released as part of Australia’s response to the effects of the COVID-19 pandemic.

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.

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.