News & Insights

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

On 19 December 2018, the Latrobe Valley Magistrates’ Court sentenced a 72 year old employer to prison for breach of her duties to provide a safe workplace under the Victorian Occupational Health & Safety Act 2004 (OHS Act).

For a variety of reasons Australians have wholeheartedly embraced the various means of electronic communication and social media platforms.

This article was first published by Daily Cargo News.

Beware those working in licensed premises – you can be liable for amounts equal to duty owing on goods stolen from those premises.

This article was first published by AirCargo Magazine.

The Australian Productivity Commission (PC) website describes its main role as:

“Providing independent research and advice to government on economic, social and environmental issues affecting the welfare of Australians”

The Fair Work Commission (FWC) has recently considered whether a dismissal for incapacity was harsh, unjust or unreasonable, in circumstances where the employee was unable to return safely to her substantive position and had declined to accept alternative employment due to her personal circumstances.

Following a health and safety related incident in the workplace, there are several actions that employers may need to take depending on the type of incident.

Readers will be aware that significant changes to the Chain of Responsibility (CoR) provisions under the Heavy Vehicle National Law (HVNL) came into effect on 1 October 2018.

The Australian border is a busy place, not just in terms of the movement of goods and people and not just in terms of the many free trade agreements (FTAs) and other trade developments.

The new Oaths and Affirmations Act 2018 (Vic) (the Act) is set to come into operation on 1 March 2019. The Act updates the processes and requirements regarding oaths, affirmations, affidavits, statutory declarations and certification of documents.

While there has recently been significant commentary on Chain of Responsibility under the Heavy Vehicle National Law and transport of goods by road the most common manner of importing and exporting goods to and from Australia is by sea.

In early 2018, Greater Shepparton City Council (Council) initiated an application to the Victorian Civil and Administrative Tribunal (VCAT) for a declaration that a camping and caravan park in Shepparton East had transformed from a camping and caravan park to a residential village or retirement village as a result of four new high quality long term cabins being constructed within the park.

The Fair Work Commission (FWC) recently considered whether an employee’s employment was terminated on the employer’s initiative of whether the employee had resigned.

In response to the decision in WorkPac Pty Ltd v Skene [2018] FCAFC 131 (WorkPac Decision), the Minister for Jobs and Industrial Relations has made the Fair Work Amendment (Casual Loading Offset) Regulations 2018 (Cth) (Casual Loading Offset Regulations).

This article was first published by Daily Cargo News, January 2019.

It really should come as no surprise that Australia and New Zealand have a shared experience and agenda when it comes to customs and trade matters. After all, both countries started out as far-flung outposts of the British Empire, both started with a similar legal framework and both have some similar trade interests and challenges, as well as similar national security interests.

Rigby Cooke Lawyers partner and litigation and dispute resolution specialist Elizabeth Guerra-Stolfa recently warned of the consequences to members of the supply chain for failing to be prepared to meet their obligations under the new Chain of Responsibility (CoR) provisions of the Heavy Vehicle National Law (HVNL) which came into effect on 1 October 2018.

So much of what we do in our lives is now carried out online, so it’s not very surprising that we’re now including access to our digital assets if not in our Wills, in letters of instruction to our executors. However, you may find that by including such instructions, you could actually be putting your executor at risk.

If you have recently purchased property in Australia, it is important that you protect your new asset. Most people immediately take out insurance to protect their new property from the consequences of flood, fire, damage and theft. Many people fail to protect their new asset from the consequences of incapacity or death.

This article was first published by AirCargo magazine, December 2018.

One of the essential elements of good regulation is the need for clear contemporary supporting legislation and associated regulation.

This article was first published by the Customs Brokers and Forwarders Council of Australia.

I have been working with the Customs Brokers and Forwarders Council of Australia (CBFCA) to develop guidance material and host legal forums on the introduction of the Trans-Pacific Partnership (TPP-11), a free trade agreement that comes into play from 30 December 2018.

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

Privacy and data protection concerns the management of personal information. The definition of personal information is broad and captures most information about an identified or identifiable individual. This includes for example names, photographs, basic contact information, credit card details, health or genetic information and information about a person’s location at a specific point in time.

Since the launch of Bitcoin in 2009, more and more people have become aware of blockchain technology, and its potential to revolutionise payments systems. However, blockchain has many applications beyond cryptocurrency. ‘Smart contracts’ – computer code which execute the terms of an agreement have the potential to revolutionise commercial transactions.

In recent times, the legalisation of ‘euthanasia’ has been hotly debated within our homes, schools and parliaments. Whilst positions may remain conflicted, the State Government of Victoria has passed the Voluntary Assisted Dying Act 2017 (Vic) (VAD Act) which is due to commence on 19 June 2019.[1]

It is often said that the one constant in life is change. Employers in the health and welfare industry are well aware of that fact of life, given the frequency of regulatory change. One of the consequences of those sorts of changes for employers is that they often result in the need to modify or reshape the skills or qualification mix or working hours of the workforce.

The Heavy Vehicle National Law (HVNL) requires that heavy vehicles, their components and their loads meet mass requirements including mass limits. The Heavy Vehicle (Mass, Dimension and Loading) National Regulation sets out, among other things, the mass requirements, mass limits and exemptions applicable to heavy vehicles.

This may seem a somewhat straightforward question, but, as with many tax questions, the answer is not particularly easy. Like most of these matters, the answer depends on the circumstances.

Changes to the Heavy Vehicle National Law (HVNL) took effect on 1 October 2018. These changes relate to new inclusions to Chain of Responsibility (CoR) laws, and resemble the current risk-based approach that is applied in workplace health and safety law.

Trans Pacific Partnership (TPP 11) to start on 30 December 2018

Good news for all – six countries have ratified the commencement of TPP 11, which is the magic number to allow the agreement to commence (for those countries which have ratified the Agreement)

We congratulate our client, Alfasi Property Group, on the announcement of their new hotel development at 2-10 River Street, South Yarra.

On Thursday 1 November 2018, the Long Service Leave Act 2018 (Vic) (LSL Act 2018) took effect.

Although the rate at which long service leave (LSL) accrues (0.8667 weeks per year) will not change, there are other significant changes that businesses operating in Victoria need to ensure they comply with to avoid exposure to penalties which have tripled under the new law.

In September 2018, the Fair Work Commission (FWC) published a new model award term to supplement the flexible work provisions in s65 of the Fair Work Act 2009 (Cth) (FW Act). In another decision, when arbitrating a dispute under an enterprise agreement, it found that the employer had not demonstrated that it had “reasonable business grounds” for refusing an employee’s flexible work request.

On 2 October 2018, a Full Bench of the Fair Work Commission, headed by Ross J, partially overturned a decision of Deputy President Colman, regarding the cases of Mr Gelagotis and Mr Hatwell which received media coverage because of the industrial context that the dismissals arose.

There has been a significant amendment to the Trade Marks Act 1995 which further entrenches the legality of parallel imports in Australia.

The recent decision of the Supreme Court in Estate of Elzow [2018] VSC 498 highlights the importance of validly executing a Will.

While most of the Australian population (and its media) are fixated on the Royal visit or the AFL player trade, those in the industry have had a similar level of interest in the movement towards Australian domestic ratification of the Trans Pacific Partnership (TPP-11) (aka the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and its possible commencement date.

This article was first published by Daily Cargo News, October 2018.

A Senior trade lawyer says the Trans-Pacific Partnership still will be subject to a transparent review process before being implemented by the government.

The prevalence of mental health issues and its impact on individuals and the workplace is now well-known and accepted by employers. Around 45% of Australians between 16-85 experience a mental health condition at some point in their lifetime[1]. In a given 12-month period, one in 5 Australians will have experienced a mental health condition[2].

The process of making an enterprise agreement and having it approved by the Fair Work Commission (Commission) is becoming ever more pedantically complicated.

A recent decision of the Fair Work Commission (FWC) provides insight into the meaning of “acceptable” alternative employment and when the FWC will use its discretion to reduce a redundancy payment in circumstances where an employee, whose position has become redundant, has declined an offer of alternative employment.

Readers will be aware from our previous articles (available here, here and here) that the new Chain of Responsibility (CoR) provisions under the Heavy Vehicle National Law (HVNL) will come into force on 1 October 2018.

Privacy and data protection concerns the management of personal information. The definition of personal information is broad and captures most information about an identified or identifiable individual. This includes for example names, photographs, basic contact information, credit card details and information about a person’s location at a specific point in time.

In recent months there have been several important developments which affect businesses which employ casual employees directly or use casual labour hire workers.

This article was first published in AirCargo magazine, September 2018.

Notwithstanding the issues associated with changes in the Australian Federal Government (including a new prime minister and new ministers for both Foreign Affairs and Trade), the process of approval of new Free Trade Agreements (FTAs) and parliamentary reviews of FTAs before enabling legislation is introduced to Parliament has continued.

A recent Supreme Court decision has highlighted the importance of accurately implementing estate planning for individuals with Self-Managed Superannuation Funds (SMSFs), together with preparing tailored Powers of Attorney.

Private binding rulings are a mechanism in the Australian tax administration system where a taxpayer may seek the ATO’s view on the treatment of a transaction without going through the formal objection or dispute process.

With tourism figures reaching new heights and migration to Melbourne soaring, developments that offer multi-purpose utility, provide a much-needed solution to accommodate the increasing influx of people in the nation’s cultural capital.

Infringement Notices (INs) were once a relatively minor nuisance in industry, largely associated with speeding or parking fines. However, since the introduction of the Infringement Notice Scheme (INS) to the Customs Act 1901 (Customs Act), INs have taken on much greater significance. That significance may escalate again following a recent media release by the Australian Border Force and the release by the Department of Agriculture and Water Resources of its notice of intention to implement its broadly-based INS under the Biosecurity Act 2015 (Biosecurity Act).

There have long been allegations that importers and their service providers here and overseas have been engaged (knowingly or innocently) in “circumventing” existing measures otherwise payable on imported goods.

Fleur came into see one of our lawyers on behalf of her friend, Norma, who was distressed and unhappy with her accommodation arrangements at an Aged Care Facility and wanted out. This was not a situation where the resident had lost the ability to make decisions for herself, but rather it was a situation where an elderly woman with no family was being taken advantage of.

Some readers will recall the final scenes of the original Jaws movie when the captain of the shark hunting vessel (Robert Shaw) finally sees the size of the monster shark and loudly announces “You’re gonna need a bigger boat” (and is then eaten by the shark).

In an increasingly diversified world, traditional notions of the definition of a “step-child” are being modified.

In earlier times, a step-child was understood to mean the child of a spouse by a previous marriage.

On 26 June 2018 the Labour Hire Licensing Act 2018 (Act) was assented to after it passed the Victorian Parliament on 20 June 2018. The Act legislates a scheme to regulate labour hire providers and labour hire users in Victoria (Labour Hire Participants).

Every four years the Fair Work Commission (FWC) reviews the Modern Awards that apply to a significant portion of Australia’s workforce. In 2017, the ACTU made a submission to the FWC as part of that process proposing that Family and Domestic Violence leave (FDV leave) be included in the Awards. Research indicates that family or domestic violence had a negative impact on their work for nearly 60% of women experiencing family or domestic violence.

This article was updated on 29 August 2018 and provides an update to our previous coverage on this matter.

Slavery is thought of as something from a past era. However, legislators across the world have passed laws this decade to combat modern slavery, for example, in 2010 California passed the Transparency in Supply Chains Act. In 2015, the UK followed with the Modern Slavery Act.

The National Employment Standards (NES) in the Fair Work Act provide that employees are entitled to accrue 10 days of personal leave per 12 months of continuous service. Where employees regularly work a standard 7.6 hour day in a 76 hour fortnight, this is not problematic. However, problems can arise where an employee works a non-standard or varying work pattern.

From taking “reasonable steps” to manage risk, to the imposition of a Primary Duty.

The Chain of Responsibility (CoR) regime is intended to ensure that responsibility for preventing breaches of the Heavy Vehicle National Law (HVNL) are shared by each member of the supply chain.

There has been a recent focus on breaches of the Heavy Vehicle National Law (HVNL) in the lead up to the implementation on 1 October 2018 of the primary duty obligations under the Chain of Responsibility (CoR) provisions of the HVNL.

The Modern Slavery Bill was promoted to prompt businesses to consider how they do business on a global scale, including within their supply chain, and take steps to eradicate any risk of modern slavery.

The idea of facilitating secure and compliant trade underpins many international agreements such as the WTO Trade Facilitation Agreement (TFA) and WCO Safe Framework of Standards (SAFE) and is reflected in many “Authorised Economic Operator” programmes such as our own Australian Trusted Trader Programme (ATTP).

The Fair Work Commission (FWC) recently considered whether a dismissal for incapacity was “harsh, unjust or unreasonable” in the following decisions.

This is the story of a worker who sent an offensive text message to his co-workers, and the legal battle that ensued. The key message… context is key.

This quote is taken from an online platform dedicated to employees expressing their anonymous opinions about their employers.

Many readers would be aware of the ongoing debate on what constitutes Hollow Structural Sections (HSS) steel or iron which is subject to dumping or countervailing duties. That has included debate on whether the alleged HSS is, in fact, another type of product (scaffolding for example) or whether the HSS is actually only part of a larger structure and should be classified on that basis.

Australia passes espionage, foreign interference, foreign influence and critical infrastructure security laws.

Readers would be aware that as and from 1 July 2017, all Australian air cargo exports to the United States were required to undergo new “piece level” screening to accommodate the requirements of the US Transportation Security Administration.

Transport companies often have people working for them, or providing services to them, in a number of different capacities.

The first question many clients ask when we raise the issue of digital assets is…‘What are they?’

Digital assets can be as basic as your Facebook page and as complicated as cryptocurrencies such as Bitcoin. In the middle, we have many different types of assets such as an online share portfolio, subscription to online newspapers, iTunes accounts or Kindle books.

Transporting goods by road can be a risky and expensive process.

The risk of damage to or loss of goods transported by road is a real concern for not only the seller and buyer of those goods but also the private carrier responsible for transporting the goods.

In follow up to our recent article titled Independent Contractors or Employees, while it’s one thing to know the difference between employees and independent contractors, an important issue to consider is the consequences for getting the classification wrong.

Transport companies often have people working for them, or providing services to them, in a number of different capacities. In addition to full-time, part-time and casual employees, transport companies may engage drivers or other workers who are described as independent contractors and who may rely exclusively on the transport company for work and income and be subject to significant control of their activities by the transport company.

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

Demotion of an employee may arise when there is a change in the operational requirements of a role or as a disciplinary consequence following an employee’s unsatisfactory performance or conduct.

Incorrectly assuming that an employee is a casual, rather than a full time or part time employee can be a very costly mistake, as a recent Federal Circuit Court decision has again highlighted.

An employee’s contract reaches its expiry date and the employment ends. Can the employee claim that they were unfairly dismissed?

The National Heavy Vehicle Regulator (NHVR) has announced that the new Chain of Responsibility (CoR) provisions under the Heavy Vehicle National Law (HVNL) will be implemented from 1 October 2018.

The Australian Federal Budget for the 2018/2019 year was announced in Parliament on 8 May 2018. Individual summaries for portfolios can be found at the relevant websites for the portfolio agencies.

On 2 April 2018 significant changes to the Real Estate Industry Award 2010 (Real Estate Award) made by the Fair Work Commission (FWC) came into effect.

Mandatory data breach reporting requirements commenced on 22 February 2018. Organisations that are bound by the Privacy Act 1988 (Cth) (Privacy Act) need to report certain data breaches to the affected individual(s) and the Australian Information Commissioner.

Those operating premises licensed for the handling and retention of goods ‘under customs control’ face a number of significant challenges:

How to prepare to comply

From 1 July 2018 food businesses must comply with labelling requirements set out by the Australian Government which aim to provide consumers with greater transparency on the origin of their food.

This article was first published by AirCargo Magazine.

The renowned journalist Alistair Cooke famously wrote and broadcast ‘Letter from America’ from the US for a period of 58 years. It was a concise and learned spoken piece, around 15 minutes in length in which Mr Cooke delivered observations on developments in the US over the preceding week to a BBC audience in a manner intended to educate the listener and remove some of the confusion usually associated with the US. 

After recently assisting our client and hotel developer, Barnes Capital, with the negotiation of a hotel management agreement with IHG, we congratulate the announcement of a new Holiday Inn to be built in Coburg, Melbourne.

We congratulate our client, Melbourne investment company and fund manager PE Capital, who revealed their plans to build an eight-storey, 200-key hotel, at yesterday’s (2 May) annual Australasian Hotel Industry Conference and Exhibition (AHICE).

Foreign investors in Victorian land are subject to complex State taxes, including foreign purchaser additional duty, absentee owner land tax surcharge and vacant residential land tax.

New laws have been passed affecting the GST obligations of property developers. These laws take effect from 1 July 2018, but may affect contracts entered into prior to this date.

Employees might assert they have a ‘right’ to have a support person present during certain processes, for example during performance management, investigations and disciplinary procedures.

Understanding the role of a support person, and how far an employer can go to control what they can do, is an important element of successfully and lawfully managing employees.

Managing the relationship with your WorkCover Agent and the Return to Work Inspector.

Whether you operate in an office or a warehouse, workplace injuries can happen to any business!

If an accident happens, as an employer, you must understand the obligation for returning an injured employee to work, in circumstances, where a WorkCover claim has been accepted. The Victorian WorkCover Authority (VCA) has a central role in overseeing this process.

Earlier this month in MWP Transport Pty Ltd & Ors v Kent & Ors [2018] NSWSC 300, the Supreme Court of New South Wales granted a transport company a freezing order over the assets of its group’s Chief Financial Officer (CFO) and a number of his companies after he admitted to theft of more than $5 million over an extended period.

This article was originally published by Daily Cargo News.

There has been significant commentary on the proposal for the introduction of a processing charge on certain low-value import transactions (LVT) which are transacted through a Self-Assessed Clearance Declaration (SAC).

The development and operation of commercial accommodation raises complex regulatory, contractual, commercial and taxation issues.