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From Monday, 12 July, all businesses will need to display their Service NSW QR code and take reasonable steps to ensure people entering their premises check-in using that QR code or digital sign-in sheet.
This applies to ALL workplaces of any nature and includes takeaway only venues.
For more information or to register your business as COVIDSafe and to get your QR Code, visit the NSW Government COVID-19 page for business and employment.
Under the Succession Act 2006 (NSW), eligible persons may apply to the Supreme Court of New South Wales for a family provision order in relation to the estate or notional* estate of a deceased person to provide “for their maintenance, education or advancement in life”.
The first hurdle to overcome is being an “eligible person” and the second is whether the provision (if any) made for the applicant in the deceased’s Will** is adequate, and if not, what “family provision order” could be made to make it adequate. Unfortunately, this process is not as simple as we have explained it.
Limitation period
Claims for provision must be made within 12 months of the date of death of the deceased person (although in limited circumstanced, this time limit can be extended).
Process
After proceedings are commenced and the parties have put on the majority of their evidence, applications for family provision orders are generally referred to either a Court annexed mediation or to private mediation but if no agreement can be reached, the matter will be set down for hearing.
Eligibility
Those who are “eligible” to make a claim for a family provision order out of a deceased person’s estate include:
How do you know if you are to receive an inheritance?
Click here to read about how to get a copy of a deceased person’s will.
Adequacy
The Court won’t simply rewrite a deceased person’s Will based on claims of justice or unfairness such as unequally dividing an estate between siblings. The Court has a wide discretion in determining these matters and the nature of any order for provision that may be made.
The Court first considers if the gift (if any) was adequate and if not, what provision may be adequate.
The Court exercises is discretion to make an order and if so, on what terms, after considering the following factors:
*Where assets that were previously assets of the deceased prior to death (such as assets gifted or transferred by the deceased to another person or entity prior to death to attempt to avoid an application for an order for provision, superannuation, property owned as joint tenants between the deceased and another person), be considered as an asset of the estate for the purposes of an application for a family provision order.
**Note that even in intestacy (where there is no Will), an application can be made for a family provision order.
*** 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 organization.
FURTHER INFORMATION
For further information in relation to Wills, Probate, Intestacy, Estate Planning or even International Wills, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.
In previous articles we explained the consumer guarantees under the Australian Consumer Law (ACL) in relation to goods and how the ACL applies to services, such as being of acceptable quality, fitness for purpose, matching description etc however, from 01 July 2021, the monetary threshold increases from $40,000 to $100,000 (an increase of 150%).
Presently, the ACL covers ‘consumers’ as being any person or business who acquires goods or services that
From 01 July 2021, the Treasury Laws Amendment (Acquisition as Consumer—Financial Thresholds) Regulations 2020 expands the ambit of these non-excludable consumer rights to any goods or services acquired for an amount of up to $100,000, regardless of their intended use.
Businesses ought to ensure that their terms and conditions, packaging and advertising covers this expanded definition and ensure that the consumer guarantees are provided for the greater value items and that the mandatory wording is included in relation to the consumer guarantees.
Additionally, staff ought to be made aware of the changes and their effect, arrangements made to identify these expanded ‘consumer’ sales and budgets ought to be adjusted to allow for more claims for refund, replacement or compensation.
FURTHER INFORMATION
For further information in contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.
McKillop Legal is a COVIDsafe venue and remains open for business during the lockdown.
On 12 April 2021, the .au Domain Administration Rules: Licensing (Rules) took effect, consolidating in excess of 30 policies and guidelines which previously applied to all “.au” domain names.
The Rules apply to all registrants who create, transfer or renew a domain name with a “.au” country code Top Level Domain (ccTLD) and the registrars who administer those domain names. The new Rules affect .au namespaces created, transferred or renewed after 12 April 2021.
This includes the following open namespaces:
.au Domain Administration Limited (auDA) is the administrator and policy body for the .au ccTLD.
Existing domain name licences expiring after 12 April 2021 continue to be governed by the legacy licensing rules applicable at the time of registration or last renewal until the current licence period ends.
Accordingly, if you had already registered a domain name before 12 April 2021, then the Rules will not apply to that domain name until your current licence period expires and you renew that domain name, or you transfer it.
Any proposed registrant applying for any “.au” domain name licence must:
Australian presence
To prove an Australian presence, a registrant can show either that they are:
Eligibility and allocation criteria
An intended registrant with an Australian presence must also satisfy any eligibility and allocation criteria for the relevant namespace.
Those name spaces are open to registrants who are a “commercial entity” (including Commonwealth entities, statutory bodies, incorporated limited partnerships, trading co-operatives and the government) who apply for a domain name which is:
For Australian present registrants, a match is defined to mean a domain name that is identical to one, some or all of the words or numbers used in the applicant’s legal name, business name or Australian trade mark. While words or numbers may be omitted, they must be in the same order and must not include any additional words or numbers.
Previously, for foreign entities, a domain name could be “closely and substantially connected“ to the registrant’s trade mark however, the Rules now require an “exact match“ to the words which are the subject of the trade mark registration (excluding trivial items such as punctuation and articles such as “a”, “the”, “of” or “&” etc).
Renting or leasing domain names
Under the Rules, registrants are not allowed to rent or lease their domain names to a third party.
This excludes companies who license domain names held by related bodies corporate (provided they still meet the Australian presence requirement).
What to do for renewal?
If the requirements of the Rules and not satisfied, the licence for that domain name may be suspended or cancelled by the registrar or auDA.
If that domain name registered before 12 April 2021, you can use the time before renewal to assess whether it will comply with the Rules at renewal time and if it doesn’t, you can adopt an appropriate strategy as required.
This may include:
FURTHER INFORMATION
For further information regarding the new eligibility rules for .au domain names or in relation to any commercial law issue, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.
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Shadow directors
The term ‘director’ is defined in s.9 of the Corporations Act 2001 (Cth) (Act) to mean:
(a) a person who:
(i) is appointed to the position of a director; or
(ii) is appointed to the position of an alternate director and is acting in that capacity;
regardless of the name that is given to their position; and
(b) unless the contrary intention appears, a person who is not validly appointed as a director if:
(i) they act in the position of a director; or
(ii) the directors of the company or body are accustomed to act in accordance with the person’s instructions or wishes.
That is, (a) refers to directors notified to ASIC and (b) covers those who are de facto directors or shadow directors.
Consequently, a person who has not been validly appointed as a director of a company (and whose details are not therefore recorded in ASIC’s registers) may nonetheless be deemed a director of that company if they have influence to the extent that the directors of the company are accustomed to acting in accordance with the person’s instructions or wishes or if they act as if they are a director.
Indicators of being a shadow director
Examples of being a de facto or shadow director can include:
Subparagraph (b)(ii) does not generally apply to advice given by the person in the proper performance of functions attaching to the person’s professional capacity (such as an external accountant, lawyer or professional adviser), but can include employees and spouses of directors (who may own assets as part of a risk minimization/asset protection strategy implemented by their director spouse).
Those that sit on so called “advisory boards” should pay particular attention to the way in which they carry out their roles and the way in which the company follows (or questions or considers) their recommendations or suggestions.
Consequences
A shadow director will be required to comply with director duties under the Act and can become liable for things like insolvent trading under section 588G.
If you are determined to be a shadow director, penalties can include:
How to help prevent being a shadow director
Steps that can be taken to help minimize the risk of being deemed a director of a company or the consequences of it include:
FURTHER INFORMATION
For further information in relation to any business related or company matters, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.
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The Corporations Act provides that undischarged bankrupts or those who have entered into personal insolvency agreements under Part X of the Bankruptcy Act (whether in Australia or another country) cannot act as a director of, or take part in the management of, a company.
Court can grant leave
The Court can however grant leave to an undischarged bankrupt to take part in management of a company and such leave can be granted either with or without conditions. Australian Securities and Investments Commission must be notified of any such application (so ASIC can intervene if required).
The applicant will bear the onus of establishing that the Court should make an exception to the legislative policy behind the prohibition (to protect the public). The court will not easily be convinced that the usual prohibition should not apply and will exercise its discretion with a view to balancing the considerations relevant to the bankrupt and the underlying public policy.
Leave will not be granted where the disqualification was imposed by ASIC (as opposed to an automatic disqualification due to the operation of the Corporations Act).
What is considered?
Hardship to the proposed director is not of itself a persuasive ground for the granting of leave however, it is one of many factors which may be considered by the court in exercising its discretion including the reason for the disqualification, the nature of the bankrupt’s involvement, the general character and conduct of the applicant in the intervening period since being removed from or prevented from being in office, the structure of the company, its business and the interests of shareholders, creditors and employees.
Although such applications are not commonplace, an undischarged bankrupt may be granted leave to take part in the management of companies generally or, more frequently, in the management of a particular company.
Penalties
The disqualification imposed by the Act continues despite the Court granting leave and care must be taken to ensure that any conditions on the leave are complied with as failure to do so can result in the leave being revoked and an offence then being committed and the penalty can include a significant 50 penalty unit fine and/or imprisonment for 12 months.
Bankruptcies generally last 3 years. You can check if someone is an undischarged bankrupt by checking the Australian Financial Security Authority’s Bankruptcy Register
FURTHER INFORMATION
For further information in relation to bankruptcy, insolvency or company matters, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.
The Fair Work Act 2009 (Cth) (Act) has been amended with effect from 27 March 2021 in relation to casual employees.
Here are the 4 practical steps that most employers should take to help ensure compliance with the Act and prevent disputes from arising with their casual employees:
1. Casual Employment Information Statement
The Fair Work Ombudsman has now made available a new Casual Employment Information Statement (CEIS). Both new and existing casual employees must be given a CEIS.
From 27 March 2021, all employers must give every new casual employee a CEIS before, or as soon as possible after, they commence their employment.
Small business employers (those with less than 15 employees) must give their existing casual employees (those employed before 27 March 2021) a copy of the CEIS as soon as possible after 27 March 2021. All other employers must give their existing casual employees a copy of the CEIS as soon as possible after 27 September 2021.
Note that the CEIS does not replace the Fair Work Information Statement (FWIS). The FWIS is still required to be provided to every new employee (casual employees should receive both the FWIS and the new CEIS).
2. Update casual employment contracts
The Act now includes a definition of ‘casual’ employee. Under the new definition, a person is a casual employee if they accept a job offer from an employer knowing that there is no firm advance commitment to ongoing work with an agreed pattern of work.
With retrospective effect, the question of whether an employee is a casual is now assessed based on what was agreed when the employment was offered and accepted, not on the pattern of hours later worked or some other subsequent conduct occurring during the course of their employment.
Employment contracts for casuals, if they don’t already, should:
3. Specify the casual loading in employment contracts and payroll documentation
The changes to the Act also remove the ability (which arose from several recent cases such as Workpac v Rossato) for employees to “double-dip” and receive entitlements as permanent staff as well as retaining the casual loading already paid to them (in lieu of such other entitlements).
The amounts actually paid to the employee as casual loading operate as a reduction to, or are set off against, of any amount that may later be determined to be payable by the employer for permanent employee entitlements.
Casual employment contracts thus should:
Further, payroll documentation (including payslips) should separately identify the dollar value of the casual loading paid in each pay period.
4. Identify eligibility for casual conversions
Once employed as a casual, an employee will continue to be a casual until they either:
a) become a permanent employee through:
(i) casual conversion, or
(ii) are offered (and accept the offer of) full-time or part-time employment, or
b) stop being employed by the employer.
Although many employers had pre-existing casual conversion obligations in relevant Modern Awards or enterprise agreements, these casual conversion provisions are now included in the National Employment Standards (NES), which means that now employers that were not historically subject to such conversion obligations are subject to the casual conversion pathway regime. Small business employers (with fewer than 15 employees) are not subject to these rules.
The new provisions require employers to offer permanent employment to any casual employee who has:
An employer need not make an offer of casual conversion if there are “reasonable grounds” not to, based on facts that are known or reasonably foreseeable (such as where the employee’s position will cease to exist within 12 months, the hours of work that employee is required to perform in the following 12 months will be significantly reduced or the employee’s availability cannot accommodate the significant change in the employees’ hours/days required to be worked).
During the 6-month transition period ending 27 September 2021 and from then on, employers should identify any employees that may meet the criteria for conversion and make an offer of casual conversion to an eligible employee within 21 days of the employee attaining 12 months of employment. There is a form and process relating to the offer (and its acceptance).
FURTHER INFORMATION
Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to any employment related issue or any business/commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.
The Treasury Laws Amendment (Combatting Illegal Phoenixing) Act 2020 (Cth), which came into effect from 17 February 2021, changed the process and timing relating to director resignations and the resignation of last remaining directors, as well as granting additional powers to ASIC, the ATO and liquidators.
The Act made changes to the Corporations Act 2000 (Cth) as well as taxation administration and GST legislation in an attempt to help prevent illegal phoenixing activities (when a new company is incorporated with the intention to continue the business of a failed company, using the same controllers and assets) including preventing the disposal of assets for less than market value and would prevents or hinders the property being available for creditors (known as ’creditor defeating dispositions’).
The regulations made seek to prevent backdating of resignations and having companies left with no directors at all.
Late notification of resignations
If ASIC is notified of a director’s resignation more than 28 days after the actual resignation date, ASIC will treat the date ASIC receives the notice as the ‘effective date’ of the resignation. Late lodgment fees will still apply.
Practically, this will mean that even if a company director had resigned, that director will remain responsible for the conduct of the company as a director until the later ‘effective date’.
Administrative oversight will not be an excuse even if a third party such as an accountant was responsible for notification.
Last remaining director
Any notices to ASIC that have the effect that a company is left without at least one director will be rejected (or member resolutions of a company to that effect are void).
Some exceptions to this rule exist, including if the last director passes away, the company is being wound up and if the director never consented to their appointment.
Practical approach to resigning
If you are a resigning director (or are removed as a director by resolution), not only should the company notify ASIC of the change in directorship using the standard form 484, you should also take steps yourself to notify ASIC using the form 370.
FURTHER INFORMATION
For further information in relation to any business related or company matters, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.
A lien is the right of a person or business to hold or retain possession of an item as security for performance of an obligation owed by another, such as the payment of monies owed.
Liens only apply to physically transferable items of personal property and effectively act as an informal or unregistered form of security for payment.
Liens only arise if the item was given to the lien holder with the express or implied authority of the owner (such as the owner or driver of a vehicle) and generally won’t arise over stolen property.
A lien does not arise simply by simply performing work. There must be a basis for a lien to arise such as a contractual right, a piece of legislation or operation of the law.
There are 4 types of liens, each of which we discuss briefly below:
In all but the latter of the categories, maintaining actual possession of the property in question is crucial as the rights afforded to the lien holder are only applicable while the lien holder is in possession of such property.
Statutory liens
Statutory liens arise through the operation of specific pieces of legislation such as those in Part 5 of the Sale of Goods Act 1923 (NSW), the Storer’s Liens Act 1935 (NSW) etc.
The relevant Acts describe the terms of the liens created by those statutes.
Contractual liens
If the terms of agreement, terms and conditions of trade or similar document that governs the rights and obligations of the parties to a contract provide for a lien, then such a lien is a ‘contractual lien’.
The operation of the lien is the same however – there must be money or some obligation owed and an item of the other party held pending payment or performance of that obligation.
Common law liens
At common law, liens can either be ‘particular’ or ‘general’ (also known as ‘specific’) and arise by implication of law.
A ‘specific lien’ secures obligations that are incurred in respect of the particular goods that are held. A common example of a specific lien is the ‘mechanic’s lien’ – the right to hold your car until you have paid for the work performed or a repairer’s lien for payment in respect of improvement work done on a chattel.
A ‘general lien’ however is more favourable, although far less common and more difficult to establish. A general lien allows a person to retain possession of any goods held (but not sell or otherwise deal with that property) until all sums payable by the owner of the goods are satisfied, not just the amount payable in respect of work performed on the specific goods held hostage.
General liens must be established by strict proof of custom or usage such as a ‘solicitors’ lien’ or an ‘accountant’s lien’ which allows a solicitor or accountant to assert a lien over and thus retain a client’s documents (or the fruits of a court action) until payment of all debts owed by the client. It is effectively an implied term of the relevant contract.
Equitable liens
Equitable liens are created on a case by case basis by the law of equity as determined by the Courts. Judges may declare such liens so as to uphold or preserve fairness or justice to a situation having regard to the parties’ dealings and conduct.
An example is where a party spends money improving the item for another where there was either express or implied agreement that the performing party should have an interest in the enhanced property. The party who performed the work and is owed the debt may then acquire an equitable interest in the property proportionate to the value of the enhancement.
Unlike the other types of liens, ‘equitable liens’ do not require actual possession of the article in question. Such liens can be voided by the express or implied agreement of the parties.
Consideration often needs to be given to the value of the lien compared to the substantial time and monetary cost of seeking judicial intervention.
How does a lien end?
Any right to assert a lien (other than an equitable lien) expires upon performance of the outstanding obligation (such as payment) or upon release if the item over which the lien is maintained as without possession, there is no lien.
How does the PPSA affect a lien?
Statutory liens and common law liens can be exempted from the operation of the Personal Properties Securities Act 2009 (Cth) (PPSA).
In some circumstanced, the party asserting the lien can have priority over any security interests registered on the Personal Property Securities Register (PPSR) held by other creditors of owner of the item if:
Security interests registered on the PPSR under the PPSA will usually defeat any contractual lien.
FURTHER INFORMATION
For more information, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au to discuss your needs.
This information is general only and is not a substitute for proper legal advice.