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Personal Leave – Have You Calculated It Correctly?

Two recent rulings have thrown the workplace arrangements of two large-scale employers of shift workers into chaos as they potentially may result in mass underpayment claims being made against hundreds of businesses around the country.

The Issue

Under the National Employment Standards (NES) full-time employees receive 10 days paid personal/carer’s leave per year of service and each work-day day is calculated as being comprised of 7.6 hours.

The Mondelez Decision

In the Mondelez decision a dispute arose in respect of their enterprise agreement:

  • it provided “80 hours per annum” for paid personal/carer’s leave rather than 10 days per annum under the NES
  • the FWC was concerned the provision would deprive Mondelez’s 10 and 12 hour shiftworkers from receiving the full NES entitlement of 10 days per annum
  • the FWC had to decide whether the NES entitlement meant 10 days x 7.6 hours or 10 days x actual hours worked being either 10 or 12 hours for its shift workers

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Calderbank Offers – What You Need to Know

By Andrew Behman, an Associate of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group

 

In our earlier post about settlement negotiations “Agreement in principle” – is it binding?“, we discussed the an offer that was agreed to “in principle” and what that means.  The offer that we talked about was a Calderbank offer.

What is it?

A Calderbank offer is a type of settlement offer designed to put the offeror in a position to ask the court to make an indemnity costs order, if the offerer succeeds in the litigation beyond the amount offered. An indemnity costs order is an order that the less successful party pay a larger portion of the other party’s costs. Normally ‘costs follow the event’ – which means that an unsuccessful party  will be ordered to pay the successful party’s costs of litigation. However normally, because of the way the costs assessment process works, only a portion of the successful party’s actual costs will be recoverable. However by making a Calderbank offer, a party to litigation can improve the chances of recovering a significantly higher proportion of those costs. These offers are based on the principles outlined in the English case of Calderbank v Calderbank [1975] 3 All ER 333.
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Garnishee Orders – 5 things to know.

By Renee Smith a Solicitor of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group

In a previous blog, which can be found here, we explained the advantages and disadvantages of using Garnishee Orders to recover money from a Judgement Debtor.

Here are 5 things you may not have known about Garnishee Orders:

  1. There is no filing fee on a Garnishee Order.

The process of issuing a Garnishee Order against a Garnishee is a quick and inexpensive process.

  1. You can issue a Garnishee Order with limited information about your Judgment Debtor.

An advantage of Garnishee Orders is that you don’t need a lot of information in order to use the garnishing process. In most cases, the name of the debtor is all that is required, however the more information that is provided the quicker the process will be.

  1. A Garnishee Order for Debts can be Repeated.

A Garnishee Order for Debts will garnish an amount owed to, or held on behalf of, the Judgment Debtor at a particular period of time.  However, Garnishee Orders can be issued on the same garnishee multiple times. Therefore, should a Garnishee Order by issued on a bank, but not recover any monies at that time, a Judgment Creditor may choose to wait a further period of time and issue an additional Garnishee Order to the same bank.
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“Agreement in principle” – is it binding?

By Andrew Behman, an Associate of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group

When you’re negotiating the terms of a contract, settlement or payment arrangement, you might hear the term “agreement in principle”.  The obvious questions are:

  1. What does it mean?
  2. If you agree “in principle” to a person’s offer, or that person agrees “in principle” to your offer, can the agreement be enforced?

These are questions that are considered in numerous cases and various situations. The Courts have historically considered such cases in the context of different categories of agreement based on the decision in Masters v. Cameron. Recently the Supreme Court of New South Wales looked at these questions again in the matter of P J Leahy & Ors v A R Hill & Anor [2018] NSWSC 6. In this matter, Mr Leahy (and his related parties) commenced proceedings against Mr and Mrs Hill to recover an amount he claimed was due for repairs to a shed and arrears under a licence agreement.
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A tree dispute relating to obstruction of views and sunlight

Rees & Anor v Chen [2017] NSWLEC 1502

Background

On 12 September 2017, judgment was delivered in Rees & Anor v Chen [2017] NSWLEC 1502 dismissing an application brought by Rees pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘Trees Act’) against the adjoining property owner, Chen. The applicant sought to have the hedges planted in the adjoining property to be limited to a certain height as it was alleged that the hedges have severely obstructed Rees’ view of the Lane Cover River.

Judgment

  • The Court found that the jurisdictional tests in s 14E(2) are not met in regards to the obstruction of sunlight because i) the obstruction of sunlight was caused by a hedge that pre-existed the applicant’s purchase of the property and ii) the sunlight obstructed was not direct sunlight.
  • The Court also found that the jurisdictional tests are not met in regards to the obstruction of views because i) the view of water was across a side boundary and relatively small portion of the overall view available; ii) the loss of views from other rooms was not severe and iii) the obstruction of views from one room pre-existed the applicant’s purchase of the property.

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Resolving Issues with Local Councils

It is not uncommon for issues to arise between local councils and the residents or businesses who make up the local government area.  We have outlined a general process of dispute resolution that can be followed if such an issue were to arise.

Dispute Resolution Steps

Step One

The first step that should be taken in trying to resolve a dispute with a Local Council is to approach Council directly.  This is because Councils are autonomous bodies with rights and powers under law.  As such, many problems are able to be resolved directly with the Local Councils.

Step Two

If the first step fails to resolve the issue, you should write to the General Manager and request that they look into your complaint.  It is a good idea to allow the General Manager a reasonable time to respond to the complaint, so that they can liaise with the relevant department.  Usually, four weeks is a good time frame, however, if the problem is long or complex you should allow more time for a response.
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