News & Insights

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.

On 12 March 2018, the existing legal framework for medical treatment decision-making, the Medical Treatment Planning and Decisions Act 2016, changed in an attempt to provide greater autonomy to potential patients by enabling them to give advance care directives that are legally enforceable.

A Supreme Court order which saw a financial services firm pay $423,445 to a former accountant provides a reminder of how repudiation of employment contracts can be used by employees to obtain significant damages awards and prevent employers from enforcing otherwise valid post-employment restraints.

This article was first published by Daily Cargo News.

After several months of uncertainty and speculation, President Trump has finally announced his intention for the US to introduce additional tariffs on steel and aluminium imported into the US. To adapt a famous comment from former US Secretary of Defence, Donald Rumsfeld, it’s time to work out what we know we know, what we think we know and what we know we would like to know.

Changes to the Heavy Vehicle National Law (HVNL) are due to take effect in mid-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.

The Export Council of Australia (ECA) has released its 2018 Trade Policy Recommendations. The release comes with a clear message that there are not enough small and medium-sized enterprises (SMEs) exporting and that this is an issue that those in government and industry need to address.

Rigby Cooke Lawyers’ Workplace Relations team continues our strong presence in the market, with the expertise of partners Sam Eichenbaum and Rob Jackson recognised by independent survey and review source Doyle’s Guide, in their 2018 Employment (Employer Representation) and Workplace Health & Safety lists.

This article was first published on the 20 February 2018 in Air Cargo Asia-Pacific Magazine. and has been updated on 22 February 2018 to reflect the release of the CPTPP text.

The Trans-Pacific Partnership (TPP) was an ambitious 12 nation free trade agreement (FTA) which was entered into some time ago but had never been formally implemented even though its entry into force had been approved by New Zealand and Australia.

Many of you would be aware of the tradition from Papal elections where white smoke from the Vatican indicates the election of a new Pope.

The Residential Tenancies Act 1997 (Act) is currently undergoing a significant review as part of the Victorian Government’s extensive Fairer Safer Housing initiative. The proposed amendments contained within the review will have an impact on both caravan and residential park residents and operators.

This article was first published by Daily Cargo News.

On 17 January 2018 a series of media stories announced that Australia had initiated the World Trade Organisation (WTO) ‘disputes’ process against Canada in relation to measures maintained by the Canadian Government and a number of Canadian provinces governing the retail sale of wine.

Overview

The reconstitution of a general law partnership or a tax law partnership may have different income tax, capital gains tax (CGT) and goods and services tax (GST) consequences that should be addressed in preparing a Partnership Reconstitution Deed.

A general law partnership may be reconstituted without the tax consequences associated with reconstituting a tax law partnership, a joint venture or co-ownership.

Rigby Cooke Lawyers’ Partner, Andrew Hudson has been recognised as one of Australia’s top five ‘true leaders in the field’ by independent research resource, Who’s Who Legal, in their global Trade & Customs list, 2017.

The Administrative Appeals Tribunal has clarified the tax treatment of gaming machine entitlement fees expenditure deciding the amounts constitute a general deduction in the income year incurred.

Solicitors and other professionals who act as executors of deceased estates need to be aware of recent law changes which clarify when commissions can be charged for administering an estate.

An appeal to a claim involving a love child, a substantial estate and a diamond encrusted guitar, has reached its conclusion in a decision which sets a precedent for all estates to be treated the same regardless of their size.

Following a nation-wide postal survey and many months of debate, the passage of the same-sex marriage legislation came into effect on 9 December 2017. With many same-sex couples organising their weddings, it is essential to understand how marriage can affect your estate planning.

If you have been appointed as a financial attorney or administrator, whether by the individual or by VCAT, it is essential to understand what is involved in this role. A breach of your legal duties can result in suspension of the role or an order of compensation if brought forth by an interested party.

This paper was presented by Rigby Cooke Lawyers Tax Partner, Dr Keith Kendall at the Tax Institute Tasmania State Convention, 19 & 20 October 2017.

This article was first published by Air Cargo Asia-Pacific Magazine.

Even as the world’s attention is drawn to events including the Eleventh WTO Ministerial Conference (MC11) in Buenos Aires, Argentina and the announcement of a proposed free trade agreement (FTA) between the EU and Japan, there also is growing acceptance of the importance of small and medium enterprises (SMEs) globally.

The festive season is upon us, with many companies having hosted their end of year celebrations over recent weeks. Although most parties go off without a hitch, sometimes there can be post-event fallout which needs to be addressed.

When an employee is struggling with meeting company expectations, often a performance improvement plan (PIP) is implemented as an opportunity for the employee to rectify unsatisfactory performance and/or problematic behaviours. Unfortunately this process is not always successful, and in some cases a disciplinary process will commence and dismissal may result.

The annual Australian International Business Survey (AIBS) has been released. This survey is the product of a collaboration between the University of Technology Sydney, Efic, Austrade and the Export Council of Australia (ECA). It is one of the country’s largest and most in-depth surveys of internationally-active Australian businesses.

Tourism and hospitality operators and retailers are being urged to smarten up on their legal rights regarding online reviews as the busy summer holiday season gets underway.

Important insolvency reforms recently passed into law as a result of the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth) (TLA Act).

Rigby Cooke Lawyers’ Tax & Wealth and Wills & Estates teams have been recognised by independent survey and review source Doyle’s Guide for their expertise in their respective practice areas.

Those within the customs and international trade industry have been following ongoing narration on the imposition of the Goods and Services Tax (GST) on low-value transactions (LVT) closely.

This article was first published by DCN.

Much of the focus in the supply chain revolves around the physical logistics of moving goods to their final destination and the regulation of that movement.

A decision of the NSW District Court delivered on 16 October 2017 has created massive levels of concern in the freight forwarding industry as it led to an order for significant damages against a freight forwarding company based on bills of lading (BL) which it had issued but were used for purposes other than originally intended.

This article was first published by Air Cargo Asia-Pacific Magazine.

To misquote someone, the free trade agenda is a ‘many-splendored thing’.

To adapt one of the literary world’s great quotes it would appear that ‘the news of the death of the TPP had been greatly exaggerated.’

Franchisors and holding companies will now face much greater accountability for failing to act when a franchisee or subsidiary is found to be breaching the Fair Work Act (FWA).

This update was first published by CBFCA Australia.

On 12 October 2017, the Australian Border Force (ABF) released the September 2017 edition of the ABF Goods Compliance Update (Update).

This article first published in the Australian Industry Group (Ai Group) Exporters Guide 2017 – 2018.

Sadly, the importance of complying with the requirements of the agencies at the border (which govern the export and import of goods) is often last on a long list of considerations of an exporter – if it appears at all.

In February 2017 the AAT handed down its decision in Zaps Transport (Aust) Pty Ltd, Domenic Zappia and John Zappia ats the Comptroller – General of Customs (Zaps Case). Readers are referred to a previous discussion of this case available here.

This article was first published by Daily Cargo News.

A previously reported, the Bill to impose GST on low value imported goods (LVTs) has recently passed through our Federal Parliament. However, by no means have all the issues associated with the Bill been resolved with certainty.

The Minister for Immigration and Border Protection (and future Minister for Home Affairs) along with the Acting Commissioner of the ABF used their opening addresses at the DIBP Industry Summit this morning (31 July 2017) to address the ongoing role of the DIBP and ABF in facilitating the legitimate trade in goods and movement of people.

This article was first published by New Zealand Trade and Enterpriseon 3 July 2017..

Australia is introducing new goods and services tax (GST) legislation relating to ‘low value’ imported goods and services.

This article first published in Air Cargo Asia Pacific magazine: Issue 247, March 2017.

For many years, Australian consumers buying goods online from overseas have not been obliged to pay either customs duty or GST on ‘low value transaction’ (LVT) imports where the value of the consignment being purchased was less than $1,000.