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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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Immediate review of discretionary trust deeds required in light of NSW duty and land tax changes

Article by Mimi Su, Senior Associate

Introduction
As a result of the 2016 NSW State Budget the NSW Government has introduced two measures aimed at foreign investors purchasing or holding NSW residential land.

Firstly, a surcharge duty of 4% has been effective from 21 June 2016 and will apply to acquisitions of NSW residential land by foreign persons.  This surcharge is payable in additional to any other stamp duty payable on the transaction.

Additionally there is a 0.75% surcharge land tax that applies to foreign persons who are owners of NSW residential land as at 31 December in each calendar year and to commence from the 2017 land tax year.

Specific issue that it creates for discretionary trusts
The definition of who constitutes a “foreign person” for the purposes of these new measures are quite wide and takes the definition in the Foreign Acquisitions and Takeovers Act 1975.

The test applicable to whether a trust will be a foreign person for the purposes of these measures is to determine whether any foreign beneficiary of the trust holds a ‘substantial interest’ in the trust.
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Review of the Personal Property Securities Act (PPSA)

The Government is currently in the process of reviewing the PPSA (the Act which governs security over assets other than land) to address continuing problems and ‘teething issues’. Currently there are a number of consultation papers which are being released for comment in preparation for the final report.The legislation requires the review to be completed by 30 January 2015.

To find out more about the PPSA and how to protect your security interests contact a commercial lawyer at Matthews Folbigg. We can provide you with comprehensive legal advice and assist with PPSR registrations.

 

Jeffrey Brown – jeffreyb@matthewsfolbigg.com.au or 9635 7966