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Important GST Withholding Legislation

On 1 July 2018, a new regime of GST withholding obligations comes into effect and is set to create considerable change to property transactions which property lawyers should be aware of.

Where a supplier (the vendor) makes a taxable supply of new residential premises or a subdivision of potential residential land by way of sale or long term lease, the recipient of the supply (the purchaser) is required to withhold an amount from the contract price and remit it to the Australian Taxation Office on or before settlement.

As a result, new vendor disclosure obligations apply to all Contracts for Sale of Land. This means property lawyers will need to revise the Contract for Sale to ensure vendors are not in breach of legislation. Failure to provide disclosure will result in penalties.

The amended legislation includes a transitional arrangement that excludes sale contracts entered into before 1 July 2018 as long as the property transaction settles before 1 July 2020. This will provide certainty for sale contracts that have already been signed.
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Employment Law – Protecting Company Connections

Employment Law – Background

Employers can take pre-employment steps to safeguard intellectual and commercial property such as company information or Linkedin connections. Furthermore, HR needs to establish a compliance framework for employee conduct, expectations and obligations.

In addition, an ex-employee’s Linkedin connections are ‘unlikely’ to be defined as trade secrets belonging to the former employer.

Employment Law – Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • insert key restraint of trade provisions. These should explicitly refer to the use of social media connections
  • include restrictive terms for the post-employment period. For instance, restricting the use of social media to publish or share content
  • obtain a list of the employee’s current social media connections
  • include terms which provide that connections gained during the course of employment are the property of the employer
  • creating appropriate social media policies and guidelines. These should cover the course of employment and post-employment.
  • train employees to ensure understanding of obligations
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Employment Law – Recommendations for Employment Entitlements

Employment Law – Background

This article provides a consideration of the pros and cons of including employment entitlements in the following forms:

  • HR policy
  • Enterprise agreement
  • terms in a separate employment contract

Employment Law – Enterprise Agreements

Employers should actively encourage diversity and inclusion by using ‘inclusive’ language in the Enterprise Agreement. It should include:

  • Paid parental leave for both primary and secondary carers (this language includes same-sex couples)
  • A flexibility term
  • A consulation term
  • A disputes, grievance handling provision
  • Rates of pay
  • Provisions that enhance productivity improvement and flexibility.

Employment Law – HR policy versus Enterprise Agreement

Pros of using a HR policy include:

  • the benefit of non-binding application compared to a binding provision for the life of the Enterprise Agreement
  • less legal exposure in policy statements as breaches of enterprise agreements can incur fines or legal action
  • HR policies can be amended from time to time
  • a policy statement adds details and implementation procedures to the core entitlements contained in the Enterprise Agreement
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Property Law changes to Off-the-Plan Contract

As of 2 November 2015, property law in New South Wales has changed in relation to off-the-plan contracts, giving purchasers increased protection which make it harder for developers to enact sunset clauses to cancel contracts. This applies to all contracts for sale, even those already entered into.

A sunset clause is traditionally included in an off-the-plan contract in order to allow a buyer or developer to rescind if completion has been delayed. However, some developers have been using abusing these clauses, intentionally delaying a project in order to cancel existing contracts and then resell to new buyers at a higher price to reflect the current market.

With the Conveyancing Amendment (Sunset Clauses) Act 2015 introducing s66ZL into the Conveyancing Act, developers must now provide purchasers with written notice of their intention to rescind no later than 28 days before the sunset date and specify why they are proposing to rescind the contract and the reason for the delay in creating the subject lot.
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FWO flags review of abandonment clauses in Awards

The Fair Work Commission has indicated that it will conduct a review of abandonment clauses contained in six modern awards, following the decision of the Full Bench of the Fair Work Commission in Benias v Iplex Pipelines Australia Pty Ltd [2017] FWCFB 38.

In the decision, the Full Bench overturned the decision of Senior Deputy President O’Callaghan ([2016] FWC 6624), who dismissed an employee’s unfair dismissal claim on the basis that the termination was not at the initiative of the employer.

The facts

Section 386 of the Fair Work Act 2009 defines a dismissal as a termination of employment ‘on the employer’s initiative’. The Act provides that where an employee’s employment is not terminated on the employer’s initiative (i.e. a voluntary resignation), that employee is unable to pursue a remedy for Unfair Dismissal.

The employee in question had failed to show up for his shifts for a fortnight without explanation, leading the employer to conclude that the employee had abandoned his employment. The employer relied upon a clause in the Manufacturing and Associated Industries and Occupations Award 2010 (‘the Manufacturing Award’), which provides:
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Does your business supply on credit?

When a customer applies for a credit account it is critical that they are made aware of your Terms of Trade. The Terms will set out how credit is given, how goods are supplied to the customer, how payment is made and when title and ownership in those goods transfers to the customer. The terms should make it clear that title in goods will only transfer to the customer once the item has been fully paid for, this is called retention of title.

For more business, contract and commercial advice, contact our commercial lawyers at Matthews Folbigg. Our offices are located in Parramatta.

Phillip Brophy – phillipb@matthewsfolbigg.com.au or 9635 7966

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Loaning money? Don’t rely on a handshake – you need a Loan Agreement

Whether you are making a loan of money for business or personal purposes it is important to document your agreement with the borrower. This should set out how much has been loaned, repayment procedure, interest payable and the length of the loan period.

If the loan is for a large amount of money, it may require a security or guarantee document to provide the lender with further protection.

Matthews Folbigg Lawyers in Parramatta can assist in drafting loan agreements and associated documentation. Contact our commercial law team for more information.

Phillip Brophy – phillipb@matthewsfolbigg.com.au or 9635 7966