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Warning! Casual Employee Entitled to Annual Leave

In a major decision, the Full Bench of the Federal Court has held that a worker expressly engaged as a casual was entitled to annual leave and other entitlements upon termination.

In our view, in doing so the Court has cast doubt on decades of accepted industrial practices and the decision threatens to undermine casual employment relationships around the country.

The Facts

In WorkPac Pty Ltd v Skene:

  • the employee was employed by a labour-hire company in the mining industry as a dump-truck operator and the employment was governed by the WorkPac Pty Ltd Mining (Coal) Industry Workplace Agreement 2007 (Agreement)
  • although the letter of employment stated he was a casual, he was subject to a continuous 7 day ‘fly-in, fly-out’ pre-set roster arrangement, worked regular and systematic shifts, stayed in accommodation at/near the mine and was expected to attend each shift
  • an ‘all-in flat rate’ of pay was payable for each hour of work although WorkPac did not specify what entitlements this flat rate of pay purported to absorb

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Record Keeping for a SMSF

Record Keeping for SMSF’s

Introduction (SMSF)
Most SMSF trustees are aware that record keeping is important to ensure their fund remains compliant and eligible for tax concessions, but few trustees understand the actual ramifications of what happens when you don’t keep the right records.

Record Keeping Requirements
The ATO website contains a great deal of helpful information for SMSF trustees including the records a fund must keep. See https://www.ato.gov.au/super/self-managed-super-funds/administering-and-reporting/record-keeping-requirements/

For example, copies of annual returns must be retained for at least 5 years but records of changes of trustees and minutes recording investment decisions must be kept for at least 10 years.

Wrong Turns – Real Life Examples

1. Maintaining the Chain of Deeds
A and B set up the AB Super Fund in 1987.  They are the trustees of the fund in their own capacity.

In 1990 and again in 1998 they updated the provisions of their SMSF trust deed.  Their accountant arranges this for them.

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Do you know what PPSR interests affect your business?

Do you know what PPSR interests affect your business?

Selling
Selling your business can be both exciting and stressful at the same time. Once a purchaser is found the parties usually move as quickly as possible to enter into a sale contract and then to completion.

PPSR Considerations
An area often overlooked by a seller is taking the time to consider what security registrations (PPSR Interests) under the Personal Properties Securities Act (PPSA) may exist over the assets being sold including vehicles, stock, plant and equipment.

Standard Sale Condition
If the Contract for Sale of Business 2015 edition is being used:

  • a standard clause requires a seller to provide a release of each security interest that applies to the assets being sold (or such other statements or documents confirming the security interest does not apply to those assets
  • often a seller mistakenly believes that because they have already paid for various assets that they are not subject to any security interest

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Commercial Law – Tips for Small Business

Commercial Law – Some tips for small business owners

Many people operate small businesses and many people are setting them up. From a commercial law perspective here are a few simple but effective tips:

  • It is well known that you should try and separate assets from business risk. That is why many people operate under a company structure. It follows that you should not use the trading company to acquire any assets, that is, other than the business itself. For example, premises should be purchased in another name and, if possible, any valuable assets such as intellectual property or even expensive equipment should be held in another name and licensed to the trading entity.
  • If a husband and wife operate a business under a company structure there is no need for both to be directors (as opposed to shareholders). The role of director carries considerable personal risk and there is no need to expose all the couple’s personal assets to that risk.

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The Importance of Record Keeping

COMMERCIAL LAWYERS UNDERSTAND THE IMPORTANCE OF RECORD KEEPING

As commercial lawyers we understand that in this electronic age it is tempting and we are often encouraged not to print documents. However it is often a good idea to have a printed copy of some records, as well as an electronic copy.

Good record keeping may sound rather Dickensian but here are a few pointers to make things easier for you as the years roll on, people move on or retire and memories fade. Nobody may remember what happened to that beige filing cabinet in the corner outside Jim’s old office and sometimes you will need is not the current document.

Insurance policies

Particularly if you shop around for the best insurance deal from time to time do you have a copy of your policies in one spot? This is very important for workers compensation policies where a claim would be handled by the insurer at the time of the injury and not the insurer at the time of the claim.
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Commercial Law – Taxing Times for foreign owners

By Natalie Gosper, a Solicitor in our Commercial Law team.

In 2016 and continuing in early 2017, we saw many changes to legislation affecting both vendors and purchasers of property. These changes largely came about due to the new Commonwealth Reporting Requirements (CRR).

The CRR places requirements on States and Territories to report transfers of freehold or leasehold interests in land.  The information collected is used for data matching by the ATO to ensure compliance with Commonwealth tax laws and for the establishment of the National Register of Foreign Ownership of Land Titles.

For NSW property transactions, purchasers comply with the CRR by completing a Purchaser/Transferee Declaration.   The form, required by OSR, must be completed for every property transaction requiring a stamp duty notation (including Transfers of Land and Surrenders or Transfers of Leases).

Some of the recent legislative changes affecting foreign owners include:

NSW Land Tax surcharge

A land tax surcharge of 0.75% (i.e. over and above the usual rate of land tax) applies to foreign owners of residential real estate commencing in the 2017 land tax year.
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Commercial Law – Selling Your Business? Beware the Warranty

By Natalie Gosper, a Solicitor in our Commercial Law team.

The standard conditions contained in the Contract for Sale of Business 2015 edition contain a number of warranties or promises made by the vendor about certain aspects of the business.

As they are contained in the ‘fine print’, they can’t be that important, right?

Wrong.  The vendor’s warranties and promises must be carefully reviewed to ensure the vendor knows exactly what they are stating about the business and how they will conduct the business between exchange and completion.   If a vendor makes incorrect representations or warranties, the purchaser may be able to make a claim for damages, rescind or terminate the contract.

The vendor promises that ‘the equipment is proper working order’.  If some equipment is not in proper working order, this must be disclosed in the contract.  This sounds simple enough, but is easy to overlook especially for businesses using old or dated equipment.

‘There is no subsisting breach by the vendor of a lease’.  This sounds straight forward, however the vendor should check rent payments, bond requirements and insurance obligations are up to date and any redecoration or other specific obligations under the lease have been met. During the period between exchange and completion the vendor must continue to comply strictly with the lease terms, including exercising an option to renew if applicable.
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Commercial Law – Selling your business? Consider the PPSR

By Natalie Gosper, a Solicitor in our Commercial Law team

Selling your business can be both exciting and stressful at the same time.  Once a purchaser is found the parties usually move as quickly as possible to exchange.

An area often overlooked by vendors is taking time to consider what security registrations under the Personal Properties Securities Act 2009 (PPSA) may exist encumbering vehicles, stock or plant and equipment included in the business sale.

Under the most recent Contract for Sale of Business 2015 edition, a standard clause is included requiring a vendor to provide a release of each security interest (or such other statements or documents confirming the security interest does not apply to assets being sold).

Often vendors believe the plant and equipment in their business is unencumbered and it can be quite a surprise to receive a PPSA search showing security registrations do exist despite the vendor not owing any money on the particular asset.   It is then necessary to contact the secured party and request a Financing Change Statement (release) which, depending upon the secured party, can take days or often even longer.   This can result in delays in completion and an unhappy purchaser.
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