McKillop Legal Blog

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Weekend and public holiday penalty rates

There has been a lot of news coverage recently in relation to the  Fair Work Commissions decision which effectively cuts Sunday and public holiday penalty rates for workers in the retail, fast food, hospitality and pharmacy industries. We explain how and why this occurred below.

Section 156 of the Fair Work Act 2009 (Cth)provides that the Fair Work Commission must conduct a 4 yearly review of Modern Awards.

The Commission’s task in the Review is to decide whether a particular Modern Award achieves the Modern Awards’ objective. If it doesn’t, then it is to be varied such that it only includes terms that are ‘necessary to achieve the Modern Awards’ objective’ (s.138).

As part of the Review, various employer bodies made applications to vary the penalty rates provisions in a number of Modern Awards in the Hospitality and Retail sectors. These applications have been heard together.

On 23 February 2017, a Full Bench of the Commission made a determination in relation to weekend and public holiday penalty rates and some related matters, in Hospitality and Retail awards.

The Modern Awards which are dealt with in this decision are:

  • Fast Food Industry Award 2010 (Fast Food Award)
  • General Retail Industry Award 2010 (Retail Award)
  • Hospitality Industry (General) Award 2010 (Hospitality Award)
  • Pharmacy Industry Award 2010 (Pharmacy Award)
  • Registered and Licensed Clubs Award 2010 (Clubs Award)
  • Restaurant Industry Award 2010 (Restaurant Award

A summary of sum of the changes are set out below.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to any business or employment related issue, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.

Fair Work Commission penalty rates

Fair Work Commission public holiday rates

Access the summary of the decision here

Deceased estate litigation

Succession Act claims

We are often called upon to advise clients in relation to claims on estates in relation to such things as challenging the validity of the Will (such as due to lack of mental capacity when the deceased person made the will or duress) or what is known as a Succession Act claim or a family provision claim (where a person says that adequate provision was not made for them in a Will). We discuss the latter here.

The purpose of the Succession Act is to seek to ensure that “adequate” provision is provided from a deceased’s estate to the family members of a deceased person (and others). Claims under the Act are based on needs.

Important facts

  • Claims must be made within 12 months of the date of death of the deceased (although in limited circumstanced, this time limit can be extended).
  • To make a claim, you must first establish that you are an “eligible person”.
  • Assuming you are an “eligible person”, you must demonstrate needs beyond the provision that was made for you in the Will (if any) for your proper maintenance, education or advancement in life.

Who is an eligible person?

Those who are eligible to make a claim for a provision out of deceased estate include:
  • A spouse of the deceased at the time of the deceased’s death;
  • A person in a de facto relationship with the deceased at the time of death
  • Children (including adopted children) of the deceased;
  • Former spouses of the deceased;
  • Someone with whom the deceased was in a close personal relationship* at the time of their death;
  • Those who have, at any time, been wholly or partly dependent upon the deceased:

- were either a grandchild of the deceased; or

- were, at any time, member of a household of which the deceased a member.

* A “close personal relationship” is a relationship other than a marriage or a de facto relationship between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care but not for reward or on behalf of another person or organisation.

What is involved?

To make a claim, the proceedings are usually commenced in the Supreme Court by way of Summons and evidence will be required in an affidavit setting out the nature and history of the relationship, contributions made to the deceased’s property and wellbeing, details of your financial need and any other relevant factors.

Simply having financial needs and showing some level of dependence on the deceased is not the end of it. The Court will have to weigh up many other factors, such as the size of the estate, the deceased’s wishes (such as those stated in a statement of testamentary intention or other similar document), competing claims from others, circumstances and events that may tend to dis-entitle a person from a benefit and so on.

Time and costs involved

Litigation is a lengthy and time-consuming process and it is an emotional one with family relationships being strained by what may be contained in affidavits or said in the witness box at a hearing. That said, often the estate pays the costs (or a large proportion of them) involved in such cases so it may not be a financial burden to enforce your rights.

Most cases settle prior hearing and usually at a mediation that can be arranged by the Court or by private agreement between the parties. Settlement is often advised to avoid the risks, costs (and emotional cost) of litigation and to help preserve any family relationships.

Often we act for the executors of an estate, but we also act for beneficiaries and those that are not mentioned in Wills at all.
Further information

If you would like any more information in relation to Wills, deceased estate litigation or estate planning/business succession issues generally, please contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au

Why have a Will?

WHAT IS A WILL?

A Will is a legal document that outlines how you wish to have your assets distributed on your death. You get to choose who administers your estate for you and who and how your beneficiaries are to receive your assets.

Generally, to make a Will, you must be over 18, have proper mental capacity and sign a document in the presence of 2 independent witnesses.

If you pass away without having a valid will in place (called ‘dying intestate’) then the provisions of the Succession Act 2006 (NSW) will apply and your estate will be divided up without regard to your wishes.

Take control of who controls your estate and who inherits by putting in place a will today.

EXECUTORS

An executor is the person you appoint in your Will to deal with your estate on your death and to ensure that your wishes are carried out.  Often, people appoint 2 executors or provide for an alternate executor so that if one person is not willing (for example, due to age or infirmity) or able (for example, if they are dead or incapacitated) to act, then the other/alternate executor can act.

WHAT CAN A WILL INCLUDE?

Any asset that you own can be deal with in your will, whether bank accounts, motor vehicles, boats, jewellery or any other item. Particular items can be left to particular people, the whole of your estate can be left to one person or to several people in various fractions or percentages and conditions of gift can be imposed, such as paying out encumbrances such as mortgages.

Real property (houses and land) that is owned as ‘joint tenants’ (as is often the case for married couples) cannot be left by Will because when one joint owner dies, it automatically passes to the surviving owner. Where land is owned as tenants in common, it can be transmitted by Will. There can be good reasons for holding property in either way.

Life insurance and superannuation benefits are not able to be dealt with by a Will where specific beneficiaries have been nominated by policy owner. If the estate is nominated as beneficiary, a nomination has lapsed (they often lapse after 3 years) or no nomination has been made, the proceeds will usually be paid to the estate and distributed under the Will however, the trustee or the insurer may have discretion as to who to pay the benefit to. Your financial advisor would be able to advise you in relation to any superannuation death benefit nominations.

Often, wishes are expressed in Wills such as those relating to cremation or burial and directions regarding guardianship of infant children.

WHEN IS A NEW WILL REQUIRED?

If you get married or if you get separated or divorced from your spouse or partner or if your family circumstances change (for example, through a birth or a death or if you have a significant change to your finances, like an inheritance, bankruptcy, changes in business structure etc), you should make a new Will.

Your Will should be regularly reviewed (every few years at least) to ensure it still reflects your current wishes.

TESTAMENTARY TRUSTS

Consider whether your beneficiaries would benefit from having Wills with Testamentary Trusts as they can offer significant and ongoing benefits, including:

  • asset protection from creditors, and
  • taxation advantages such as income splitting.

This is particularly useful where your beneficiaries are in business and have their own asset protection measures in place, if they are ‘at risk’ or where you have income producing assets. Speak to us about how testamentary trusts can benefit your family.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to estate planning, business succession or any other commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.

What is legal tender in Australia?

As you would expect, Australian banknotes are legal tender throughout Australia.

Similarly, a payment of coins is a legal tender in Australia however, there are restrictions, such as those in the Currency Act 1965, about how much can be paid in coins.

Coins are not legal tender if they exceed:
  • 20c where 1c and/or 2c coins are offered (these coins have been withdrawn from circulation, but are still legal tender);
  • $5 if any combination of 5c, 10c, 20c and/or 50c coins are offered; and
  • 10 times the face value of the coin if $1 or $2 coins are offered.

For example, if someone wants to pay a merchant with 5c coins, they can only pay up to $5 worth of 5c coins and any more than that will not be considered legal tender.

The above is of course subject to any agreement between parties – a provider of goods or services is at liberty to set the commercial terms upon which payment will take place before an agreement for the supply of the goods or services is entered into.

For example, vending machines may not accept small denomination coins or payment may be agreed to be made in foreign currency such as USD.

If you would like any more information in relation to any commercial law or contractual issue, please contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au

Source: Reserve Bank of Australia 

Trust & Superannuation Deed Amendments

Do you or any of your clients have a family/discretionary trust, unit trust or self-managed superannuation fund and want to change the deed?

Often the change is to remove and replace a trustee with a new one. In other situations, it may be changing a class of potential beneficiaries, dealing with the power of appointment, bringing forward the termination date or changing the trustee’s rights and/or obligations.

Care needs to be taken not to vest the trust or to cause a resettlement, which can give rise to unintended consequences, including:

  • CGT and
  • stamp duty.

There is no real “one size fits all” solution. Deeds can vary greatly as to the process and requirements.

McKillop Legal can assist in reviewing the relevant Deed/Rules and drafting an appropriate document to give effect to the required change.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to trusts, estate planning, business succession or any other commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.

School zones in operation

REMINDER: School zones will be operational again from Monday, 30 January 2017.

40km/h school zones help protect children on their way to and from schools at the times and places where they are often in high numbers. School zone signs, pedestrian crossings and dragon’s teeth road markings improve the visibility of school zones.

Double Demerits this Australia Day weekend

Those making a long weekend out of the upcoming Australia Day celebrations this Thursday are reminded of the double demerits points scheme that applies for driving offences, including:

  • Speeding
  • Illegal use of mobile phones
  • Not wearing a seatbelt
  • Riding without a helmet

The scheme is designed to encourage safe and responsible driving and will apply from 25 – 29 January 2017 inclusive as well as on other long weekends and holiday periods throughout the year. Drive safely.

What does an enduring guardian do?

An enduring guardian is a person appointed to make decisions about your health and lifestyle for periods in which you are incapable of making such decisions for yourself (for example if you have dementia, are in a coma, are unconscious following a car accident or suffer from some other mental incapacity.)

Appointing an Enduring Guardian is an important step in implementing a proper estate plan (others include having a Will and appointing a Power of Attorney).

HOW DO YOU APPOINT AN ENDURING GUARDIAN?

You can choose who can make decisions on your behalf regarding your medical and dental treatment and decide where you live if you are not capable of doing this for yourself. These are known as “functions”. The easiest way to do this is to appoint an enduring guardian.

The appointment of an enduring guardian takes effect only if and when you become unable to make personal or lifestyle decisions for yourself, such as where you are in a coma, are unconscious or suffer from mental incapacity like dementia.

WHO CAN BE APPOINTED?

An enduring guardian must be at least 18 years of age but cannot be a person who, at the time of the appointment, provides you with medical treatment, accommodation, support or care to you as a professional.

The appointed enduring guardian should be someone that you trust absolutely as they have significant powers. Although an enduring guardian must act in accordance with the provisions of the Guardianship Act 1987 (NSW), you should be satisfied that the person you appoint will act in your best interests.

You can appoint more than one person to act as your enduring guardian – either jointly (together) or separately. You can also appoint alternative enduring guardians in case something happens to your first nominated enduring guardian. For example, people often appoint their spouse and have their children as their joint alternate enduring guardians.

WHAT DECISIONS CAN AN ENDURING GUARDIAN MAKE?

You can give your enduring guardian the discretion to make all decisions for you when you are not able to make them for yourself or alternatively, you can limit your enduring guardian’s functions such as to consenting to certain procedures, limiting their discretion as to the type of nursing home or care facility you want to reside in or requiring specialist consultation or consultation with relatives regarding decisions about your care and treatment.

You cannot give your enduring guardian a function or direction which would require an unlawful act, such as assisted euthanasia. You can provide specific directions regarding turning off life support, ‘do not resuscitate’ orders, assisted ventilation, artificial nutrition and hydration etc.

ENDING ENDURING GUARDIANSHIP

An enduring guardian’s appointment comes to an end when you die or if you revoke the appointment however, you can only revoke it provided you still have mental capacity.

The New South Wales Civil & Administrative Tribunal can review or revoke a person’s appointment as an enduring guardian and can make a guardianship order appointing a new guardian or appointing a representative of the NSW Trustee & Guardian if it is considered that your guardian not making appropriate decisions on your behalf.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to estate planning, business succession or any commercial law issues, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.

Setting up a new business

Before starting a new business, the first thing that you need to consider is the structure of the entity to operate the business.

There are numerous options to choose from, such as:

  • sole trader;
  • partnership;
  • company; and
  • unit trust.

This is when it can pay to get good accounting/taxation, financial planning and legal advice as there are advantages and disadvantages associated with each type.

WHICH STRUCTURE IS THE BEST?

There is no right or wrong answer to this necessarily, although some are preferred more than others.

To determine the most appropriate structure, you need to consider what is most important for you and your family and things such as what assets/business you already have interests in, whether you intend to be in business with others or you’ll go it alone, how you intend to run the business and whether it is a long term plan or whether you intend to quickly build and sell it.

Each option has different qualities, including:

  • simplicity vs complexity,
  • asset protection vs personal liability,
  • income going to one individual vs ability to minimise tax through income splitting,
  • taxation issues on sale such as CGT exemptions; and
  • business succession planning issues.

OTHER THINGS TO CONSIDER

Once the structure has been determined, and depending on the structure to be adopted, other things that need to be covered off include:

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to starting or buying a business, drafting business documents or any other commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.

Merry Christmas

We wish our clients, family and friends a very merry Christmas and a happy new year. Our office is now closed until Monday, 9 January 2017

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