News & Insights

This article was first published in AirCargo magazine, June 2019.

Those in industry (let alone anyone with an interest in world news) would be painfully aware that global trade is under massive pressure at the moment. Examples of these threats are everywhere and if they come to pass, the consequences will be uniformly bad. Trade and global integration has been a driver of financial and social improvement with the World Bank estimating that more than a billion people have been lifted out of poverty over the last 25 years.

The Fair Work Act 2009 (Cth) (FW Act) does not specifically deal with whistleblowers, and the Federal Government has previously rejected proposals to amend the FW Act to link disclosure rights under public and private sector whistleblowing laws with the General Protections in Part 3-1. That said, whistleblowers can still utilise provisions in the FW Act to gain additional protection, including where their disclosure may not actually qualify for protection under whistleblowing laws.

Property developers who enter into agreements to develop Victorian land with an unencumbered value of over $1 million are at significant risk of incurring a duty liability, under new legislation that received Royal Assent on 18 June 2019.

The last few years have seen several high profile cases of senior executives being ‘caught out’ providing fake or misleading information on their CVs/ job applications.

What is the employer’s duty of care?

Employers have a duty under workplace health and safety legislation, including the Occupational Health & Safety Act (2004) (Vic), to provide and maintain (as far as is reasonably practicable) a safe workplace. In addition, employers have a duty to monitor the health of their employees. Criminal prosecution, penalties and potentially imprisonment can result if these statutory duties are breached.

20 June 2019 – Correction to article in footnote 5

Annual Wage Review Decision

On 30 May 2019, the Fair Work Commission handed down its 2019 Annual Wage Review Decision. The key elements of the decision are:

This article is co-authored by Andrew Hudson and Bethany Clark 

During each year we discuss various important decisions handed down by the Tribunals and Courts.

Rigby Cooke Lawyer, led by property partner Darren Marx, recently acted for Stronghold Investment Management on its acquisition of the Cardinia Club from Pakenham Racing Club for $16m. The well established entertainment venue has 105 Electronic Gaming Machines, a large bistro, upmarket sports bar and multiple function rooms. Brisbane based Stronghold is a specialist Business Park and Hospitality sector Fund Manager.

Chapter 11 of the Parliamentary Joint Committee on Corporations and Financial Services ‘Fairness in Franchising Report’ – published in March 2019 – covered the termination of franchise agreements.

Now that the Australian Federal election has been run and won, attention will turn to the priorities of the Coalition Government once Parliament resumes, whether in relation to the introduction of new initiatives or pursuit of the agenda which had been on hold pending the election outcome.

Led by partner Michael Gough, Rigby Cooke is delighted to have the opportunity to support Barnes Capital, a premier boutique capital investment firm, on the launch of the Oakwood Hotel and Apartment development in Dandenong.

Businesses operating in Australia are subject to a kaleidoscope of constantly evolving privacy obligations. As privacy week draws to a close, it is an opportune time to look forward to how the privacy landscape might change in the future, subject to the outcome of tomorrow’s federal election.

Rigby Cooke Lawyers’ Planning and Environment team continues to be recognised for their outstanding work in the planning space in Victoria.

Rigby Cooke Lawyers partner and Intellectual Property expert, Ian Rosenfeld, has been selected by Mondaq Ltd as its Exclusive Australian Contributor and author of the Australian chapter of the Mondaq Comparative Guide to Trademarks 2019.

Rigby Cooke Lawyers have just introduced a new Notary Public offering led by Partner, Rachael Grabovic.

This article was first published by Daily Cargo News.

I write this article on 12 April 2019, shortly after the announcement of the federal budget and the announcement of the date for the federal election. As expected, this period encompassed the usual claim and counter-claim between the major political parties and the usual cynicism that even after the election, the political landscape may not change significantly.

This article was first published by AirCargo Magazine.

Faced with the prospect of a no deal Brexit on 12 April 2019, the EU and the UK put into place a compromise that is referred to as a ‘flextension’ because it delays Brexit until 31 October 2019, subject to a number of conditions. 

What is a Will? Almost all of us would answer that question by mentioning that it’s a written document setting out who receives our assets when we die.

However, recent court cases have taken a more expansive view as to what they are prepared to accept is a valid Will. The 2017 decision of the Supreme Court of Queensland (QSC) in Re Nichol; Nichol v Nichol & Anor [2017] QSC 220 held that an unsent SMS message was sufficient to constitute a Will.

This article was first published by Daily Cargo News.

Technology has contributed to improvements in trade and is seen as one means to facilitate improvements. For example, many parties are looking to Blockchain as a means to enhance both the speed and safety in the movement of goods. Most contemporary Free Trade Agreements (FTAs) include provisions to facilitate customs procedures and trade as well as chapters on assisting e-commerce. In one excellent example, the FTA Portal by the Department of Foreign Affairs and Trade (DFAT) comprises up to date information on the terms of our FTAs in a way which makes it easier for parties to understand the FTAs and take advantage of them.

Last year the Victorian Government passed the Labour Hire Licensing Act 2018 (Act). The Act legislates a scheme to regulate labour hire providers and labour hire users in Victoria (Labour Hire Participants). The scheme legislated by the Act will commence operation on 29 April 2019 and labour hire providers are required to have applied for licences under the Act by no later than 29 October 2019.

Last month, the Parliamentary Joint Committee on Corporations and Financial Services published its ‘Fairness in Franchising report’ (Report). The terms of reference for the Report were released over 12 months ago and more than 400 submissions were received, mostly from franchisees.

The Federal Budget 2019 was formally released by the Federal Government last night (2 April 2019). However, in an election year, the Federal Government took the unusual path of confirming that the government would not be seeking to pass new legislation implementing that Budget in the remaining Parliamentary sitting days. Instead, the Budget legislation would be left only to pass if the government is re-elected in the next Federal Election which is likely to take place in May 2019.

The freedom to make a Will and to leave your estate to whomever you choose (called testamentary freedom) is one of the most fundamental principles of succession law in Australia.

As many readers would be aware, when the New Zealand Customs Act 2018 (Act) commenced on 10 October 2018, not all of its provisions come into force on the same day.

I had been working with Custom Brokers & Freight Forwarders Federation of New Zealand (CBAFF) and other members of the Stakeholders Reference Group (Group) established by New Zealand Customs (Customs) in reviewing the proposed terms of the Act including changes to powers to Customs and the enforcement regime in the Act.

This article was first published by Daily Cargo News.

The term “Brexit” has well and truly entered into regular use and represents one of the top topics for news and current affairs at the moment. The world is transfixed by developments in the UK including close attention to the (non) passage of legislation to implement the Exit Agreement brokered by the UK Government with the EU and the associated pressure on the UK Conservative Government. As the day of departure from the EU approaches (29 March 2019), the absence of a clear exit process gives rise to more concerns on how the world will cope if no deal (or a bad deal) is struck.

Key points:

• When contracting with administrators or liquidators, counterparties need to be careful to ensure such contracts will give them enforceable rights.
• An administrator can enter into almost any contract and is personally liable for numerous categories of debts they may incur.
• A liquidator has only limited powers to enter into contracts on behalf of a company, and generally has no personal liability under such contacts.

Key points:

• A liquidator is unable to apply for a judgment under the Building and Construction Industry Security of Payment Act 2002 (Vic) (SOPA).
• Where judgment under the SOPA was obtained by the contractor before it went into liquidation, and the principal asserts an offsetting claim, the Court will stay enforcement of the judgment pending a taking of accounts pursuant to section 553C of the Corporations Act.
• Ultimately, a liquidator will only be able to enforce payment of an amount actually shown to be owed under the construction contract, after a final reconciliation has occurred.

Key points:

• Liquidators have the power to sell causes of action belonging to the company, or conferred on the liquidator by the Corporations Act 2001 (Cth) (Act).
• Selling instead of litigating causes of action can be a safer, surer and quicker path for a liquidator to realise value for creditors.
• However, there are certain important limitations on a liquidator’s power to sell causes of action.

The memory of the summer holidays are long over. And, as a full working year looms, some employees will consider looking for opportunities elsewhere.

There may be many motives to contemplate change. More pay or new career challenges, for example, a promotion. Or, the motive, as the common social media catchphrases go, might be that an employee leaves their boss, not the organisation – seeking neither money nor career advancement, but simply respect.

Australia depends heavily on sea cargo and the efficient movement of goods through the supply chain both for exports and imports. The benefits of the proliferation of free trade agreements (FTAs) and other initiatives aimed at facilitating trade and reducing barriers and costs, can be compromised when access to the infrastructure is limited, delayed or made more expensive, especially where there is little recourse against those practices.

When most goods enter the country, the completion of customs formalities usually includes the payment of customs and excise duty. However in a number of cases, the duties are not paid on import and the goods are moved under “customs control” to “licensed premises” which are secured facilities, whether bonds or warehouses where goods are held pending payment of the duties and release into “home consumption” for wider use, often for retail sale.

One of the fundamental questions any business owner needs to address is how to finance their assets. On commercial grounds, the various options have important implications.

Contracts to provide transport or logistics services are vital to business success, but if not well negotiated, can have serious or even fatal consequences for the transport or logistics provider.

Rigby Cooke Lawyers’ Workplace Relations team continues to be recognised for their outstanding work in the Workplace Health & Safety and Employment space in Victoria.

On 19 December 2018, the Latrobe Valley Magistrates’ Court sentenced a 72 year old employer to prison for breach of her duties to provide a safe workplace under the Victorian Occupational Health & Safety Act 2004 (OHS Act).

For a variety of reasons Australians have wholeheartedly embraced the various means of electronic communication and social media platforms.

This article was first published by Daily Cargo News.

Beware those working in licensed premises – you can be liable for amounts equal to duty owing on goods stolen from those premises.

This article was first published by AirCargo Magazine.

The Australian Productivity Commission (PC) website describes its main role as:

“Providing independent research and advice to government on economic, social and environmental issues affecting the welfare of Australians”

The Fair Work Commission (FWC) has recently considered whether a dismissal for incapacity was harsh, unjust or unreasonable, in circumstances where the employee was unable to return safely to her substantive position and had declined to accept alternative employment due to her personal circumstances.

Following a health and safety related incident in the workplace, there are several actions that employers may need to take depending on the type of incident.

Readers will be aware that significant changes to the Chain of Responsibility (CoR) provisions under the Heavy Vehicle National Law (HVNL) came into effect on 1 October 2018.

The Australian border is a busy place, not just in terms of the movement of goods and people and not just in terms of the many free trade agreements (FTAs) and other trade developments.

The new Oaths and Affirmations Act 2018 (Vic) (the Act) is set to come into operation on 1 March 2019. The Act updates the processes and requirements regarding oaths, affirmations, affidavits, statutory declarations and certification of documents.

While there has recently been significant commentary on Chain of Responsibility under the Heavy Vehicle National Law and transport of goods by road the most common manner of importing and exporting goods to and from Australia is by sea.

In early 2018, Greater Shepparton City Council (Council) initiated an application to the Victorian Civil and Administrative Tribunal (VCAT) for a declaration that a camping and caravan park in Shepparton East had transformed from a camping and caravan park to a residential village or retirement village as a result of four new high quality long term cabins being constructed within the park.

The Fair Work Commission (FWC) recently considered whether an employee’s employment was terminated on the employer’s initiative of whether the employee had resigned.

In response to the decision in WorkPac Pty Ltd v Skene [2018] FCAFC 131 (WorkPac Decision), the Minister for Jobs and Industrial Relations has made the Fair Work Amendment (Casual Loading Offset) Regulations 2018 (Cth) (Casual Loading Offset Regulations).

This article was first published by Daily Cargo News, January 2019.

It really should come as no surprise that Australia and New Zealand have a shared experience and agenda when it comes to customs and trade matters. After all, both countries started out as far-flung outposts of the British Empire, both started with a similar legal framework and both have some similar trade interests and challenges, as well as similar national security interests.

Rigby Cooke Lawyers partner and litigation and dispute resolution specialist Elizabeth Guerra-Stolfa recently warned of the consequences to members of the supply chain for failing to be prepared to meet their obligations under the new Chain of Responsibility (CoR) provisions of the Heavy Vehicle National Law (HVNL) which came into effect on 1 October 2018.

So much of what we do in our lives is now carried out online, so it’s not very surprising that we’re now including access to our digital assets if not in our Wills, in letters of instruction to our executors. However, you may find that by including such instructions, you could actually be putting your executor at risk.

If you have recently purchased property in Australia, it is important that you protect your new asset. Most people immediately take out insurance to protect their new property from the consequences of flood, fire, damage and theft. Many people fail to protect their new asset from the consequences of incapacity or death.

This article was first published by AirCargo magazine, December 2018.

One of the essential elements of good regulation is the need for clear contemporary supporting legislation and associated regulation.

This article was first published by the Customs Brokers and Forwarders Council of Australia.

I have been working with the Customs Brokers and Forwarders Council of Australia (CBFCA) to develop guidance material and host legal forums on the introduction of the Trans-Pacific Partnership (TPP-11), a free trade agreement that comes into play from 30 December 2018.

Governments and, increasingly big companies, are using tender processes (including Request for Proposals and Request for Tenders) to award contracts to transport and logistics companies.

Privacy and data protection concerns the management of personal information. The definition of personal information is broad and captures most information about an identified or identifiable individual. This includes for example names, photographs, basic contact information, credit card details, health or genetic information and information about a person’s location at a specific point in time.

Since the launch of Bitcoin in 2009, more and more people have become aware of blockchain technology, and its potential to revolutionise payments systems. However, blockchain has many applications beyond cryptocurrency. ‘Smart contracts’ – computer code which execute the terms of an agreement have the potential to revolutionise commercial transactions.

In recent times, the legalisation of ‘euthanasia’ has been hotly debated within our homes, schools and parliaments. Whilst positions may remain conflicted, the State Government of Victoria has passed the Voluntary Assisted Dying Act 2017 (Vic) (VAD Act) which is due to commence on 19 June 2019.[1]

It is often said that the one constant in life is change. Employers in the health and welfare industry are well aware of that fact of life, given the frequency of regulatory change. One of the consequences of those sorts of changes for employers is that they often result in the need to modify or reshape the skills or qualification mix or working hours of the workforce.

The Heavy Vehicle National Law (HVNL) requires that heavy vehicles, their components and their loads meet mass requirements including mass limits. The Heavy Vehicle (Mass, Dimension and Loading) National Regulation sets out, among other things, the mass requirements, mass limits and exemptions applicable to heavy vehicles.

This may seem a somewhat straightforward question, but, as with many tax questions, the answer is not particularly easy. Like most of these matters, the answer depends on the circumstances.

Changes to the Heavy Vehicle National Law (HVNL) took effect on 1 October 2018. These changes relate to new inclusions to Chain of Responsibility (CoR) laws, and resemble the current risk-based approach that is applied in workplace health and safety law.

Trans Pacific Partnership (TPP 11) to start on 30 December 2018

Good news for all – six countries have ratified the commencement of TPP 11, which is the magic number to allow the agreement to commence (for those countries which have ratified the Agreement)

We congratulate our client, Alfasi Property Group, on the announcement of their new hotel development at 2-10 River Street, South Yarra.

On Thursday 1 November 2018, the Long Service Leave Act 2018 (Vic) (LSL Act 2018) took effect.

Although the rate at which long service leave (LSL) accrues (0.8667 weeks per year) will not change, there are other significant changes that businesses operating in Victoria need to ensure they comply with to avoid exposure to penalties which have tripled under the new law.

In September 2018, the Fair Work Commission (FWC) published a new model award term to supplement the flexible work provisions in s65 of the Fair Work Act 2009 (Cth) (FW Act). In another decision, when arbitrating a dispute under an enterprise agreement, it found that the employer had not demonstrated that it had “reasonable business grounds” for refusing an employee’s flexible work request.

On 2 October 2018, a Full Bench of the Fair Work Commission, headed by Ross J, partially overturned a decision of Deputy President Colman, regarding the cases of Mr Gelagotis and Mr Hatwell which received media coverage because of the industrial context that the dismissals arose.

There has been a significant amendment to the Trade Marks Act 1995 which further entrenches the legality of parallel imports in Australia.

The recent decision of the Supreme Court in Estate of Elzow [2018] VSC 498 highlights the importance of validly executing a Will.

While most of the Australian population (and its media) are fixated on the Royal visit or the AFL player trade, those in the industry have had a similar level of interest in the movement towards Australian domestic ratification of the Trans Pacific Partnership (TPP-11) (aka the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and its possible commencement date.

This article was first published by Daily Cargo News, October 2018.

A Senior trade lawyer says the Trans-Pacific Partnership still will be subject to a transparent review process before being implemented by the government.

The prevalence of mental health issues and its impact on individuals and the workplace is now well-known and accepted by employers. Around 45% of Australians between 16-85 experience a mental health condition at some point in their lifetime[1]. In a given 12-month period, one in 5 Australians will have experienced a mental health condition[2].

The process of making an enterprise agreement and having it approved by the Fair Work Commission (Commission) is becoming ever more pedantically complicated.

A recent decision of the Fair Work Commission (FWC) provides insight into the meaning of “acceptable” alternative employment and when the FWC will use its discretion to reduce a redundancy payment in circumstances where an employee, whose position has become redundant, has declined an offer of alternative employment.

Readers will be aware from our previous articles (available here, here and here) that the new Chain of Responsibility (CoR) provisions under the Heavy Vehicle National Law (HVNL) will come into force on 1 October 2018.

Privacy and data protection concerns the management of personal information. The definition of personal information is broad and captures most information about an identified or identifiable individual. This includes for example names, photographs, basic contact information, credit card details and information about a person’s location at a specific point in time.

In recent months there have been several important developments which affect businesses which employ casual employees directly or use casual labour hire workers.

This article was first published in AirCargo magazine, September 2018.

Notwithstanding the issues associated with changes in the Australian Federal Government (including a new prime minister and new ministers for both Foreign Affairs and Trade), the process of approval of new Free Trade Agreements (FTAs) and parliamentary reviews of FTAs before enabling legislation is introduced to Parliament has continued.

A recent Supreme Court decision has highlighted the importance of accurately implementing estate planning for individuals with Self-Managed Superannuation Funds (SMSFs), together with preparing tailored Powers of Attorney.

Private binding rulings are a mechanism in the Australian tax administration system where a taxpayer may seek the ATO’s view on the treatment of a transaction without going through the formal objection or dispute process.

With tourism figures reaching new heights and migration to Melbourne soaring, developments that offer multi-purpose utility, provide a much-needed solution to accommodate the increasing influx of people in the nation’s cultural capital.

Infringement Notices (INs) were once a relatively minor nuisance in industry, largely associated with speeding or parking fines. However, since the introduction of the Infringement Notice Scheme (INS) to the Customs Act 1901 (Customs Act), INs have taken on much greater significance. That significance may escalate again following a recent media release by the Australian Border Force and the release by the Department of Agriculture and Water Resources of its notice of intention to implement its broadly-based INS under the Biosecurity Act 2015 (Biosecurity Act).

There have long been allegations that importers and their service providers here and overseas have been engaged (knowingly or innocently) in “circumventing” existing measures otherwise payable on imported goods.

Fleur came into see one of our lawyers on behalf of her friend, Norma, who was distressed and unhappy with her accommodation arrangements at an Aged Care Facility and wanted out. This was not a situation where the resident had lost the ability to make decisions for herself, but rather it was a situation where an elderly woman with no family was being taken advantage of.

Some readers will recall the final scenes of the original Jaws movie when the captain of the shark hunting vessel (Robert Shaw) finally sees the size of the monster shark and loudly announces “You’re gonna need a bigger boat” (and is then eaten by the shark).

In an increasingly diversified world, traditional notions of the definition of a “step-child” are being modified.

In earlier times, a step-child was understood to mean the child of a spouse by a previous marriage.

On 26 June 2018 the Labour Hire Licensing Act 2018 (Act) was assented to after it passed the Victorian Parliament on 20 June 2018. The Act legislates a scheme to regulate labour hire providers and labour hire users in Victoria (Labour Hire Participants).

Every four years the Fair Work Commission (FWC) reviews the Modern Awards that apply to a significant portion of Australia’s workforce. In 2017, the ACTU made a submission to the FWC as part of that process proposing that Family and Domestic Violence leave (FDV leave) be included in the Awards. Research indicates that family or domestic violence had a negative impact on their work for nearly 60% of women experiencing family or domestic violence.

This article was updated on 29 August 2018 and provides an update to our previous coverage on this matter.

Slavery is thought of as something from a past era. However, legislators across the world have passed laws this decade to combat modern slavery, for example, in 2010 California passed the Transparency in Supply Chains Act. In 2015, the UK followed with the Modern Slavery Act.

The National Employment Standards (NES) in the Fair Work Act provide that employees are entitled to accrue 10 days of personal leave per 12 months of continuous service. Where employees regularly work a standard 7.6 hour day in a 76 hour fortnight, this is not problematic. However, problems can arise where an employee works a non-standard or varying work pattern.

From taking “reasonable steps” to manage risk, to the imposition of a Primary Duty.

The Chain of Responsibility (CoR) regime is intended to ensure that responsibility for preventing breaches of the Heavy Vehicle National Law (HVNL) are shared by each member of the supply chain.

There has been a recent focus on breaches of the Heavy Vehicle National Law (HVNL) in the lead up to the implementation on 1 October 2018 of the primary duty obligations under the Chain of Responsibility (CoR) provisions of the HVNL.

The Modern Slavery Bill was promoted to prompt businesses to consider how they do business on a global scale, including within their supply chain, and take steps to eradicate any risk of modern slavery.

The idea of facilitating secure and compliant trade underpins many international agreements such as the WTO Trade Facilitation Agreement (TFA) and WCO Safe Framework of Standards (SAFE) and is reflected in many “Authorised Economic Operator” programmes such as our own Australian Trusted Trader Programme (ATTP).

The Fair Work Commission (FWC) recently considered whether a dismissal for incapacity was “harsh, unjust or unreasonable” in the following decisions.

This is the story of a worker who sent an offensive text message to his co-workers, and the legal battle that ensued. The key message… context is key.