This program will provide employers with useful skills and knowledge in understanding when to undertake a workplace investigation and how to conduct it thoroughly to minimise legal risk.
The topics for discussion will include:

understanding when an investigation should be undertaken and the options for employers
learning best practice when conducting a workplace investigation
the legal issues associated with workplace investigations and how to avoid or minimise them
how to prepare an investigation report to withstand legal scrutiny.

We hope that you are able to join us for our first online training session in 2021

Half day training – The importance of workplace investigations and how to get them right$495.00

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The post Interactive online training – The importance of workplace investigations and how to get them right appeared first on Cooper Grace Ward.

Click below for who, what, where with Precedents Manager Susan Bryant. Hear what brought Susan to Cooper Grace Ward Lawyers and the best advice she’s ever been given.
 
 
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We have recently seen a surge in payroll tax audit activity as the state revenue authorities have received data from other sources, including the ATO and ASIC.
If you receive an audit letter for your business or a client, it is important to review the payroll tax position and respond within the timeframe.
We have set out below some common traps to watch out for.
Trap 1 – assuming the letter from the OSR is correct
Some of the OSR’s audit letters use strong language: ‘data available to us indicates you should be grouped with other entities for payroll tax purposes’, ‘we have strong evidence that suggests you should be grouped’ and ‘state and federal agency information indicates a possible discrepancy in your taxable wages’.
The payroll tax provisions are notoriously difficult. Data matching helps the revenue authorities identify a risk, but more work must be done to determine whether there is actually a payroll tax problem.
We have seen multiple cases where the OSR’s data matching has not resulted in grouping or undeclared taxable wages.
Trap 2 – assuming the business’s payroll tax position is OK
We have also seen multiple cases where the OSR’s data matching has revealed a payroll tax problem.
In these cases, there is a very narrow window of opportunity to correct the problem – which can reduce the penalties that are otherwise imposed at 75% of the payroll tax shortfall.
The payroll tax provisions are complicated, and often counterintuitive. Businesses and advisers should consider getting an independent review to see whether they have a problem or not.
Trap 3 – assuming payments to company contractors are not subject to payroll tax
Payments to contractors that are companies are generally not subject to PAYG withholding or compulsory superannuation – however payroll tax plays by different rules.
Payments to contractors, including companies and trusts, are often ‘relevant contracts’ and therefore subject to payroll tax – unless one of the exemptions applies.
The exemptions have particular conditions in the legislation but if the services or circumstances fall within one of the following categories, you should check whether that exemption applies. The exemptions are:

the services are ancillary to the supply or use of the goods
the services are not ordinarily required by the business and are performed by someone who ordinarily provides those services to the public generally
the services are ordinarily required for less than 180 days in a financial year
the services are provided by a person for a period that does not exceed 90 days in a financial year (bearing in mind that any work on a day counts as a whole day)
the Commissioner is satisfied (this often requires an application to the OSR) that the contractor provides the services of that kind to the public generally
the contractor has employees or subcontractors (two or more for companies)
the services are connected to the delivery of goods, where the contractor provides the vehicle
the services are in relation to sales of insurance
the services are in relation to the door-to-door sale of goods for domestic purposes.

In some cases, an exemption may apply in one financial year, but not the next financial year. To track this, the business should identify all payments to all contractors for the relevant financial years, and then test whether an exemption applies for each contractor for each financial year. We can help with this if requested.
Trap 4 – service entity structures not reporting their income tax positions correctly
The OSR is specifically targeting whether payments to contractors should be subject to payroll tax. The OSR is able to use information from the business’s income tax returns, particularly the label for ‘contractor expenses’.
We often see service entities, particularly for medical practices, incorrectly report their income because they have misunderstood their structure.
Medical and allied health industry businesses often fall within one of two types of business models:

An employee or contractor model. In this structure, a practice entity carries on the medical services business and contracts with its patients. The practice entity then separately engages either employees or contractors (or both) to provide the services the practice entity needs to serve its patients.
A service entity model. In this structure, practitioners carry on their own business and contract with patients directly. The practitioners pay a fee to a services entity for the provision of administration and other support services, and often the right to occupy the premises to carry on their business.

The two models have very different PAYG withholding, superannuation and payroll tax consequences. In some cases, we see documents that incorrectly mix both models: this results in increased tax, superannuation and payroll tax risks. For example, we sometimes see a service entity incorrectly report all of the fees they collect on behalf of their medical practitioners as the service entity’s income, and then report all of the payments remitted to the medical practitioners as ‘contractor expenses’. This will unnecessarily trigger a payroll tax risk.
We also see cases where what happens in practice (particularly in relation to invoicing) does not match the documents. This also increases the income tax, GST, superannuation and payroll tax risks.
Trap 5 – missing when a business is part of a payroll tax group
For common grouping traps, please see our previous article Payroll tax grouping – common mistakes to avoid.
Those issues will continue to be common audit targets through 2021.
I have received a payroll tax letter and I’m not sure if I have a problem – what should I do?
If you have received a letter from the OSR, and are concerned about possible payroll tax problems, please feel free to contact us as soon as possible.
The first step is identifying whether this is a possible payroll tax risk. The second step is responding to the OSR – either that there is no problem (and the reasons why) or that the business has a voluntary disclosure to make.
The post Payroll tax audit activity surges as a result of data matching – watch out for these traps appeared first on Cooper Grace Ward.

In Giles v State of Queensland [2020] QDC 332, the District Court of Queensland dismissed an injured worker’s claim on the basis the State was not negligent in its management and welfare checking during his attendance at a catastrophic fire.
Facts
The plaintiff, Peter Giles, had been employed as a firefighter with the Queensland Fire and Rescue Services (QFRS) for 27 years.
In August 2011, Mr Giles was working as a pump operator to help fight a house fire in Slacks Creek where, tragically, many lives were lost.
QFRS made a deliberate decision that night to not rotate workers on site, with a view to limiting the number of personnel exposed to the catastrophic scene.
As a result of his attendance at the fire, Mr Giles developed post-traumatic stress disorder (PTSD).
Issues
The key issue was whether QFRS was negligent in its management of Mr Giles at the fire, and whether any such negligence caused his PTSD.
Mr Giles argued that QFRS breached its duty of care to him by failing to:

rotate him to prevent extended exposure to the traumatic event
undertake appropriate questioning and assessment of his welfare
remove the crowd of spectators from his vicinity.

The State argued QFRS discharged its obligations to take reasonable care for Mr Giles and other QFRS employees by limiting the number of QFRS personnel at the fire. Specifically for Mr Giles, QFRS took steps to monitor his wellbeing by having senior personnel assess his welfare repeatedly during his attendance at the fire.
Credibility
Before considering liability, the Court considered Mr Giles’ credibility and reliability. Reid DCJ noted credibility was a ‘critical factor’ in determining the case.
The State argued that Mr Giles was not a credible or reliable witness. The Court accepted that argument. It held that Mr Giles had been ‘less than frank’ about various prior medical issues, including whether he had previously suffered psychological issues.
The Court’s findings about credibility heavily influenced its findings of fact.
Decision
Mr Giles’ claim failed.
In relation to the welfare checks and other support, the Court found as follows:

Mr Giles’ supervisor and a safety officer had enquired about his wellbeing on at least four occasions while the fire was being fought.
Mr Giles had not expressed any issues in response to those enquiries, and he did not appear to be distressed.
Mr Giles participated in a debrief immediately after the fire, which involved being offered access to a peer support officer with FireCare.

The Court considered whether Mr Giles ought to have been rotated and made the following findings:

The (deliberate) decision to limit the number of personnel exposed to the catastrophic scene was appropriate because, despite being catastrophic, the fire was quickly brought under control.
(The Court accepted Prof Harvey Whiteford’s psychiatric evidence that there were competing considerations in the decision whether to rotate firefighters, and that ‘many personnel would be distressed and resentful at the idea of being removed from the scene’ before the fire was contained.)
Mr Giles was informed of the decision to limit the number of personnel at the fire.
There was no persuasive psychiatric evidence that, had Mr Giles been rotated earlier from his work, he would not have suffered from PTSD.
(The Court considered a study of the emergency services personnel involved in the 11 September 2001 terror attacks, which indicated that prolonged exposure of over 200 days increased the risk of psychological injury. However, the Court noted there was no evidence that exposure of 3-4 hours rather than 8-9 hours would have prevented the injury.)
The decision to limit the personnel involved in the fire (and therefore to not rotate Mr Giles) was reasonable.
The Court found that the presence of the crowd was not a strong contributor to the development of Mr Giles’ PTSD.

Accordingly, the Court held that QFRS had provided sufficient welfare checks and, in doing so, had reasonably managed Mr Giles’ work duties while engaged in fighting this particular fire.
Conclusion
At the start of Reid DCJ’s long judgment, his Honour commented:
The role of a firefighter can be a demanding one and one that can place a significant emotional burden on those that perform that role to ensure, so far is can be done, that others in the community are safe. Unfortunately that emotional burden can become overwhelming, without fault of the individual firefighter or of his employer. This is such a case.
Emergency Services personnel provide crucial community services, often in traumatic circumstances. In such situations, an employer owes an onerous duty of care to ensure all reasonable precautions for workers’ safety are taken. However, this case is a reminder that, even where circumstances may be tragic, a plaintiff needs to prove that his employer should have done more, and that such additional measures would have made a real difference.
The post No negligence in welfare management of emergency services worker on night of catastrophic fire appeared first on Cooper Grace Ward.

My ex-partner is screaming at my staff, throwing tantrums in the tea room and has a client-losing attitude. Can I sack them?
Yes, provided the termination process is lawful and it is the same as it would be for any other employee.
How do I know if my ex is an employee?
If your ex performs work for your business, they may be an employee at law. It is commonplace for a spouse to be employed in the business one to two days per week to provide general support to the business as needed. However, it is not always straightforward as to whether they are:

an employee and entitled to employment benefits, or
simply performing unpaid work for the business as a director, as members of a family commonly do.

Can I sack them on the spot?
If your ex is an employee, on rare occasions, and if their behaviour warrants it, you may be able to ask them to leave on the spot. However, in most cases, you will need to provide notice or payment in lieu. If they are a casual employee according to law, you can just stop offering them work.
If your ex has an employment agreement or is covered by a modern award, you should look at these documents for any notice periods. If there is no written document that governs the working relationship, there may be a verbal agreement that makes up the employment agreement. In determining if an employment agreement exists, it must be clear that:

the parties intended to create a legally binding arrangement
there is a commitment to perform work for the benefit of the business
the person performing the work is to get something in return
the person is not performing the work as part of a business of their own.

A court will also consider the nature of the arrangement, not just what the parties have decided to call it. In doing so, the court will consider:

the nature and purpose of the arrangement
the length of the arrangement
the significance of the arrangement to the business
the person’s obligations
who benefits from the arrangement.

Where your ex is performing productive work for the ordinary operation of the business and is being remunerated for their work, it is likely that an employment relationship exists. If this is the case, you will need to further determine what protections your ex is entitled to under the Fair Work Act or any applicable agreement or modern award.
Can my ex bring an unfair dismissal claim?
Some employees are eligible to bring an unfair dismissal claim. If there is a risk of an unfair dismissal claim, you need to consider whether the dismissal:

was made for a valid reason
was not made for an unlawful reason
was not harsh, unjust or unreasonable.

Whether there is a valid reason for dismissal will depend on the individual facts of each case. Simply because a person is your ex and you don’t like them will not be a valid reason to dismiss them. If, however:

they are behaving inappropriately
they are causing issues for staff or clients
they are not meeting an acceptable level of work
there is a loss of trust and confidence
the business does not require their role to be performed by anyone,

you may have a valid reason to dismiss them.
Once you have established that there may be a valid reason for dismissal, your ex must be:

provided with notice of the reason for the possible dismissal
given an opportunity to respond
informed of the reason for dismissal (in person where possible) and offered the opportunity to have a support person.

Keep in mind, you may be up for paying spousal maintenance
If you terminate your ex-spouse’s employment resulting in them having no income, you may be ordered to pay spousal maintenance.
Spousal maintenance is an amount of money paid by one spouse to the other for their financial support.
In an application for maintenance, the family law courts will consider whether:

your spouse can adequately support themselves
you have the capacity to support them.

In determining whether your spouse can support themselves, the court will consider whether:

they have the care and control of a child of the marriage
they are unable to obtain appropriate gainful employment due to age or physical or mental incapacity
they have any other demonstrated need having regard to the matters in section 75(2) of the Family Law Act 1975.

If you sack your ex-partner, you may be up for paying them maintenance from your after-tax dollars, which is likely to be less tax effective than if they were to be paid a wage from your business.
If you think it preferable that your ex-partner no longer works in the business, address this with your family lawyer first, rather than put anything in writing directly to them that might constitute a termination. It may be that, through without prejudice negotiations, an agreement can be reached for your ex-partner’s early exist from the business with little fuss.
If that cannot occur, then an employment lawyer will be able to guide you through a lawful termination process. However, it is important to bear in mind the family law consequences of your ex being out of work and having no income.
If you need advice about these issues, you are most welcome to contact one of our experienced family or employment lawyers who will be able to assist.
The post Can I sack my ex-partner? appeared first on Cooper Grace Ward.

Eligible small business owners may now be able to get a full or partial transfer duty and vehicle registration duty exemption in Queensland when they restructure their small business.
Until recently, sole traders, partnerships and discretionary trusts who had business assets in Queensland were often unable to restructure their business due to the prohibitive transfer duty costs. Under a new administrative arrangement contained in Public Ruling DA000.16.1 issued by the Commissioner of State Revenue, these business owners may be eligible for the new small business restructure duty exemption.
The small business restructure exemption applies to a transfer:

of small business property with a dutiable value of not more than $10million
from a small business entity
to a newly registered unlisted corporation or an unlisted corporation that has been dormant since its registration (see further below in relation to who the shareholders can be).

What is small business property?
Small business property is dutiable property (goodwill, plant and equipment, stock etc.) that is actively used by a small business entity to carry on the small business entity’s business. A home that is used for residential purposes (even if part of the home is used to conduct the business) is not small business property.
What is an eligible small business entity?
Each of the following entities may be eligible for the exemption:

an individual
a partnership
a discretionary trust.

To be a small business entity for duty purposes, the entity must directly hold small business property and carry on a business that:

has an annual turnover of not more than $5 million; and
is conducted on or from a place in Queensland (or is a business that supplies land, money, credit or goods or provides a service to Queensland customers).

What’s the catch?
The exemption will only apply to the extent that the shares in the transferee company are held by the following required shareholders:
 

 
The required shareholders do not have to be the only shareholders in the company. A partial duty exemption is available if there are other shareholders. A partial duty exemption is also available if the shares are held in different proportions to the ownership interests before the transfer.
The duty exemption will apply to the lower of:

the individual’s interest, partner’s interest or default beneficiary’s interest in the small business property before the transfer; and
the individual’s interest, partner’s interest or default beneficiary’s interest in the value of the transferee company’s property on winding up (expressed as a percentage).

Further detail is needed on some aspects of the administrative arrangement. There is currently no certainty as to:

what year the $5 million turnover requirement relates to
if the exemption is intended to apply to a partnership of trusts that restructures and, if so, who do the shareholders of the company need to be?

Like any duty exemption, it is important to check that all the boxes are ticked before carrying out a restructure and relying on the exemption. Unlike the corporate reconstruction exemption, there does not appear to be any ability to seek a ruling on the application of the exemption before carrying out the restructure.
Please contact a member of our private client team if you would like more information on the small business restructure duty exemption.
The post New small business restructure duty exemption for Queensland appeared first on Cooper Grace Ward.

In some American states, when a relationship ends a spouse can be entitled to alimony for life or equalisation of the parties’ incomes for a period.
The Australian law is not so generous. Spousal maintenance (as we refer to it) is not an automatic right upon separation, nor is there any strict rule that the pre-separation standard of living must be maintained.
When I tell this to my clients who are avid Suits watchers (or insert any other American lawyer TV show), then depending on whom I am acting for, their response is either relief or uncertainty about their financial future.
What is spousal maintenance?
Spousal maintenance is an amount of money paid by one spouse to the other for their financial support.
It is unrelated to the financial support of children, which is dealt with separately by our child support legislation.
To be successful in an application for spousal maintenance, the family law courts must determine that:

the applicant party cannot adequately support themselves for a valid reason; and
the respondent party has the capacity to support the applicant.

In determining whether the applicant can adequately support themselves, the court will have regard to whether they:

have the care and control of children of the marriage
are unable to obtain appropriate employment due to age or physical or mental incapacity
have any other need having regard to various factors in section 75(2) / 90SF(3) of the Family Law Act 1975.

How much will I get paid / be ordered to pay?
Even if the court determines the applicant is unable to adequately support themselves, the respondent is only liable to support them in so far as they are reasonably able to do so.
The respondent’s capacity to pay (if any) is assessed by determining their surplus of income after payment of their reasonable weekly needs.
If the applicant has a weekly deficit of $100, but the respondent only has a weekly surplus of $50, then the court could only order a spousal maintenance payment of $50 per week despite the applicant’s greater need.
Where possible, both spouses should continue to live after separation at the level that they had previously enjoyed, if reasonable. That is not always possible, however, where the higher costs of running two households means the parties do not have the financial resources to live at their former level of luxury.
How long will maintenance last for?
The court does expect that a party of working age will ultimately return to the workforce, particularly as their children get older and need less physical care, unless there are other reasons they can’t work, such as health issues. Spousal maintenance payments therefore are generally only ordered for a short fixed period, usually of no more than four years, to allow a party to re-train and re-enter the workforce.
For those approaching retirement age and the ability to access their super, the length of the award can be longer and, in some rare cases, spousal maintenance has been ordered for an indefinite period.
If you need any advice about your spousal maintenance entitlements as a recipient, or your obligations as a payer, you are most welcome to contact me or one of our other experienced family lawyers.
The post Am I entitled to spousal maintenance? appeared first on Cooper Grace Ward.

The two ways to finalise financial matters with your ex-partner are consent orders or a financial agreement.
Both documents are legally binding, but one may be more appropriate than the other depending on your circumstances.
It is important to finalise matters in a legally binding way because informal agreements about the division of assets often collapse.
We have seen unfortunate cases where a spouse has filed a court application more than 20 years after a hand shake division of the assets asking for a different and bigger settlement because their financial matters were never finalised and their ex has prospered and they have not; always to the shock and horror of their ex and, usually, new partner.
What’s the difference between the two documents?
Consent orders are lodged with the Family Court and stamped as a court order. Two documents are filed; an Application for Consent Orders and proposed orders. The Application contains details of both parties’ income, assets, liabilities and super. The proposed orders set out the orders the parties are asking the Court to make.
A financial agreement is a private contract between parties that is not lodged with a court, nor subject to court scrutiny. For the agreement to be binding both parties are required to have their own lawyer provide them with legal advice about the agreement and sign a certificate.
Why choose one over the other?
In most cases consent orders will be appropriate. A financial agreement, however, is likely to be the better option in the following circumstances:

The deal struck is outside the range of legal entitlements. For the Court to approve consent orders, it must be satisfied the orders are just and equitable. A financial agreement is not subject to the Court’s scrutiny so any deal can be struck, however bad it may be for one spouse.
For example, if a spouse’s legal entitlements are between 65 to 70% of the property pool and they have agreed to a deal where they retain 50%, the Court will not approve the orders. The only way to finalise the deal would be by entering a financial agreement.
However financial agreements must be signed off by each party’s lawyers and, if too outlandish, could be liable to be challenged.
Spousal maintenance must be dealt with. A financial agreement can include provisions for maintenance or oust the jurisdiction of the Court to make any orders for maintenance. This is less risky than an order for maintenance because the Court can later, upon the application of a party, extend or increase maintenance beyond the original term in the consent orders.
Parties have the option to finalise their property settlement in consent orders and spousal maintenance in a financial agreement.
There are urgent time limits. Once consent orders are lodged in Court, depending on the registry, it can take weeks for them to be approved. A financial agreement can come into effect immediately upon the parties signing. This may be necessary where parties need an agreement in place and documents signed for tax relief before a looming 30 June deadline.
A financial agreement provides more privacy than consent orders. It is a private contract between parties and is not subject to the Court’s review, nor is it available on the Court file.

An experienced family lawyer will be able to assist you in determining which settlement documents are more appropriate for you.
If you need any assistance documenting your financial matters after separation, please do not hesitate to contact one of our other experienced family lawyers.
The post What’s the difference between consent orders and a financial agreement? appeared first on Cooper Grace Ward.

School principals can be faced with a raft of angry emails between warring parents and their lawyers at this time of year, and in the lead up to Term 1.
Where separated parents cannot agree upon which school their child will attend, schools often get caught in the crossfire, with one parent asking the school to enrol a child and the other refusing to sign enrolment forms.
Discussions about schools can be heated even between parents in intact relationships, let alone those who have separated.
The starting point is that unless a court has ordered otherwise, separated parents must endeavour to make joint decisions about the school their child will attend.
This will involve discussing with your former partner the various options for schools, perhaps attending school open days, and communicating with each other why you think a certain school is the most appropriate for your child.
It generally assists in these negotiations to remain open minded and research several schools, then communicate to your partner why a particular school is the best fit for your child and what it offers that is superior to other schools.
Things to think about include:

How far is the school located from your respective residences and workplaces? Bearing in mind the current parenting arrangement, is it practicable for both of you to get your child to and from school?
Does your child have friends or siblings attending your proposed school?
What are your child’s views about the school? This will be more relevant the older your child is.
Did you and your partner have any prior agreement about the school your child would attend? Has your child already been enrolled in that school for some time?
Are there any cultural or religious reasons for your child to attend a certain school?
Does your child have special needs and are there programs or facilities at your proposed school that will specifically cater for their needs?
If you would like your child to attend a private school, who will pay the fees? If your ex-partner does not have the financial means to meet the costs, it may be that you have to offer to pay the full fees. A court will not order a child to attend a private school if a parent is pressing for the school fees to be paid jointly but one party cannot afford it.

If, despite your best efforts, a joint decision cannot be made, the next step is mediation and then, as a last resort, court proceedings.
The court will come to a decision based on what school it considers is in the best interests of your child; this is highly discretionary.
The court won’t compare schools based on NAPLAN results or the like, and, usually, practical considerations like the location, who is the primary carer, whether siblings are attending, special needs, etc, are the most important factors.
Unfortunately, as a result of court delays, even if a court application is filed in November or December the year before the school term, it is unlikely to be listed for hearing before Term 1.
This means parents need to think about schooling early and ramp up their negotiation efforts to avoid court, and the no doubt very confusing situation for a child of not starting school on time or changing a few weeks into the school term.
If you need any assistance in negotiating schooling matters, attending mediation or commencing court proceedings, you are most welcome to contact me or one of our other experienced family lawyers.
The post How do I change or choose my child’s school after separation? appeared first on Cooper Grace Ward.

Click below for who, what, where with senior associate Steven Jell. Hear what brought Steven to Cooper Grace Ward Lawyers and the best advice he’s ever been given.

 
The post Who, what, where with Steven Jell appeared first on Cooper Grace Ward.

Register now
Employers that have underpaid compulsory superannuation up to 31 March 2018, and who did not take advantage of the amnesty, will now generally be subject to a base penalty of between 100% and 200% of the superannuation guarantee charge (SGC).
The ATO previously had a broad discretion to remit penalties. However, the legislation now generally prevents the ATO from remitting penalties below 100% of the employer’s SGC for quarters that were covered by the amnesty.
One exception, which allows the ATO to remit penalties below 100%, is where the employer makes a voluntary disclosure.
We see many cases where employers attempt to comply with their compulsory superannuation obligations but are caught by complexities in the law. The minimum 100% penalty for those historical quarters will be a harsh result in these cases.
In this webinar, partner Fletch Heinemann will work through a series of case studies to discuss:

what amounts are ‘ordinary time earnings’ and subject to compulsory superannuation
specific problems around overtime and ‘ordinary time earnings’
when annual leave loading is and isn’t subject to compulsory superannuation
recent examples of when individual contractors have been considered employees
when genuine contractors are still entitled to compulsory superannuation
a step by step plan to help you identify risks and resolve problems.

After this webinar, you should be able to identify the main superannuation guarantee risks, and take steps to avoid hefty penalties.
The webinar will be recorded, so, if you are unable to attend at the advertised time, we will send you the recording for future viewing.

Webinar – The superannuation guarantee amnesty has ended$165.00

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The post Webinar – The superannuation guarantee amnesty has ended – and the stakes for identifying and fixing compulsory superannuation mistakes just got higher appeared first on Cooper Grace Ward.

The Federal Government has announced it will table its new IR omnibus Bill on Wednesday 9 December, which is set to include a number of changes for casual workers and those who employ them.
Due to be introduced this week, the IR omnibus Bill will include a definition of casual employment and provide criteria for when employers must offer permanent employment.
In an effort to address ‘double dipping’ by employees, the Bill will contain provisions allowing employers to offset any loadings paid against future claims for other benefits.
The Bill will also include:

a more flexible interpretation of the Better Off Overall Test by the Fair Work Commission
award simplification for employers to pay loaded rates
criminal charges for employers who egregiously, recklessly and knowingly underpay workers.

With the Bill still subject to change, the exact nature of the provisions are uncertain. Employers should ensure they are aware of the amendments as and when they are released, and that those with casual workforces are ready to implement the requisite changes.
For more information on this topic, please contact a member of our team . Subscribe to our interest lists to receive publications like this straight to your inbox. 
The post Casual workers ‘must’ be offered permanent employment and definition of a ‘casual’ – changes announced to workplace laws appeared first on Cooper Grace Ward.

The recent Victorian decision of Wilstead No.5 Pty Ltd v Smyth [2020] VSC 651 reinforces the importance of checking beneficiary structures in family trust deeds to ensure they are wide enough and include everyone to whom we wish to distribute (and have been distributing).
The Bowen Family Trust was established in 1988 and operated a building business, which Robert Bowen ran very successfully for many years.
The primary beneficiaries were listed as ‘the children of the persons listed in the Schedule’. The Schedule listed Robert Bowen and his wife Venetia Bowen and their children as primary beneficiaries.
The general beneficiaries included the parents of the primary beneficiaries, but excluded the guardian and the appointor, unless specifically included as a primary beneficiary. Robert Bowen was the guardian and the appointor.
All of this together meant that Robert Bowen was not actually a beneficiary of the trust. The trustee had been distributing to him for many years.
Ultimately, the Court rectified the trust deed to include Robert Bowen as a beneficiary as it accepted that was the intention when the trust was established, but this required a formal court application that would have involved several sets of lawyers and considerable cost.
This court case reminds advisers to thoroughly check the beneficiaries listed in family trust deeds to ensure we know who is included and excluded, and that the people to whom we are distributing are in fact beneficiaries.
Every year we deal with situations where distributions have been made outside the beneficiary group. Particular risk areas include new spouses (especially de facto and same sex partners), stepchildren, charities and related trusts and companies.
If you would like any assistance with reviewing trust deeds and beneficiary structures, or dealing with issues, please contact a member of our team.
The post Am I sure who the beneficiaries of my trust are? appeared first on Cooper Grace Ward.

The ATO has issued a formal Legislative Instrument that covers in-house asset issues where a self-managed superannuation fund (SMSF) provides rent relief to a related party (Self Managed Superannuation Funds (COVID 19 Rental income deferrals – In house Asset Exclusion) Determination 2020 – Self Managed Superannuation Funds (COVID-19 Rental income deferrals – In-house Asset Exclusion) Determination 2020 (legislation.gov.au)).
The determination provides that rent deferred during the 2019-20 and 2020-21 financial years by an SMSF, or a company or unit trust in which an SMSF holds an interest, is not an in-house asset where the related party tenant is financially affected by COVID-19.
The determination applies for the year in which the deferral was made and any future income years.
Without the determination, the rent deferred could be an in-house asset of the SMSF and result in compliance issues if the value of all in-house assets of that SMSF exceeded 5% of the assets of the SMSF.
It is still important for SMSFs to ensure that any rent relief provided to related parties is on normal arm’s length terms, and properly documented. This is discussed further in our earlier publications, including What SMSFs must do to keep their auditors happy when they have provided COVID-19 relief to related parties  and ATO confirms auditors must review and report on SMSFs providing COVID-19 rent relief to related parties.
Please contact a member of our superannuation team if you would like to discuss how this impacts your SMSF, or the SMSFs of your clients.
 
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The recent Victorian decision of Re Owies Family Trust [2020] VSC 716 reinforces the importance of checking variation powers in trust deeds and ensuring they are wide enough.
Re Owies Family Trust involved a dispute between brothers and a sister (all adults) over how a family trust established by their parents in 1970 had operated for the last years of their parents’ lives, and would operate into the future. The trust held substantial assets including an apartment in Melbourne where one of the parties lived.
There were many issues in dispute. Over the years the trust deed had been varied to change the identity of the appointor and the guardian from the parents to ultimately one of their children. The first issue was whether the variation clause in the trust deed allowed the person who was appointor and guardian to be changed. If the variations were effective, the child was the appointor and the guardian with particular powers. If not, the trust no longer had an appointor or a guardian.
The variation power in the trust deed allowed the trustee to ‘vary all or any of the trusts hereinbefore limited’ and to ‘declare any new or other trusts or powers’. This was a typical variation power for a trust set up at the time.
The Court decided the variation power did not allow the trustee to alter the Schedule (which was where the identity of the appointor and the guardian was listed) or otherwise to amend the identity of the appointor and the guardian.
This meant the appointor and guardian role had not been changed to the intended child, and the trust no longer had an appointor or a guardian. As a result, control of the trust did not flow as smoothly as the parents had planned.
This is another court case that reminds advisers to check the variation power in family trust deeds to ensure proposed and past variations are within the power. There have been other cases in the last few years where amendments to trust deeds were not allowed, which lead to outcomes different to what was intended.
If you would like any assistance with reviewing past trust deed variations or considering varying a trust deed, please contact a member of our team.
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On 7 September 2020, the superannuation guarantee amnesty period ended.
Employers that have underpaid compulsory superannuation up to 31 March 2018, and who did not take advantage of the amnesty, will now generally be subject to a base penalty of between 100% and 200% of the superannuation guarantee charge (SGC).
There is no limitation period for when the ATO can issue original assessments for SGC.
The ATO previously had a broad discretion to remit penalties. However, the legislation now generally prevents the ATO from remitting penalties below 100% of the employer’s SGC for quarters that were covered by the amnesty.
One exception, which allows the ATO to remit penalties below 100%, is where the employer makes a voluntary disclosure.
What are the common mistakes for underpaying compulsory superannuation?
We see many cases where employers attempt to comply with their compulsory superannuation obligations but are caught by complexities in the law. The minimum 100% penalty for those historical quarters will be a harsh result in these cases.
Employers should check they are not caught by one of the traps below.
Trap one – not understanding ordinary time earnings
There should be no SGC when compulsory superannuation is paid on time, at the correct rate, on ‘ordinary time earnings’.
‘Ordinary time earnings’ means the earnings in respect of the ordinary hours of work. The difficulty in some cases is assessing what hours of work are ‘ordinary’. Overtime is generally not ‘ordinary hours’, but complications can arise when:

a workplace agreement prevails over an award, so that it is not clear what hours are ordinary and what hours are overtime
hours are designated as ‘overtime’ but are paid at the same rates as normal hours
there is no award and no agreement, in which case all hours may be ‘ordinary hours’.

The worst cases we have seen are businesses paying compulsory superannuation on 38 hours per week, when in fact individuals were working more than 38 hours and all hours were ‘ordinary hours’. A mistake like this, multiplied across a workforce, can produce a significant SGC bill.
Trap two – contractors who are actually employees
Whether an individual is an employee or independent contractor continues to be the subject of many disputes.
The ATO provides a list of factors that they consider when assessing whether an individual is an employee or independent contractor. These factors are:

the intention of the parties, as shown in the terms and circumstances of the formation of the contract
who exercises control over the individual’s work
whether the individual operates on his or her own account or in the business of the payer – particular risk areas include uniforms and email signatures
whether the individual is paid for ‘results’ contracts
whether the work can be delegated or subcontracted
who bears the commercial risk
who provides tools and equipment and who pays business expenses
other indicators, such as leave.

The list is a helpful overview of the factors to consider. However, applying these factors to a particular individual’s circumstances can be much more difficult. Extreme care should be taken when using the ATO’s online calculator. While it generally produces the correct answer in clear-cut cases, it does not properly analyse border-line cases. It is also not binding.
There has also been a recent trend in the case law where a further test has been introduced: whether the individual is carrying on a business. This is a different test compared to the ATO’s consideration of the factors (above) about whether the individual is acting on their own account. On the business test, if an individual is not carrying on a business, they are an employee.
We have seen a number of unfortunate cases where the ATO (or OSR) has concluded that individuals who were treated as contractors were actually employees.
Trap three – deemed employees
SGC legislation deems certain contractors to be employees. This applies to genuine independent contractors.
The list of deemed employees includes:

board members
individuals who work under a contract that is wholly or principally for their labour
various MPs, members of legislative assemblies and other officials
anyone paid to perform or present any music, play, dance, entertainment, sport, display or promotional activity – and anyone paid to provide services in connection with one of those
anyone paid to perform services in connection with the making of any film, tape or disc or any television or radio broadcast.

For individuals providing professional services, the issue is often whether they are being paid wholly or principally for their labour.
How much will my penalty be remitted if I make a voluntary disclosure for historical quarters?
For historical quarters, the legislation requires that the employer makes a voluntary disclosure to the ATO. This must be done before the ATO informs the employer that it will be examining the employer’s compliance for a particular quarter. If this is not done, the ATO does not have the power to remit the penalty below 100%.
If the employer does make a voluntary disclosure, the effect is that the ATO has the power to remit the penalty below 100%.
In assessing the base penalty rate, the ATO will first consider whether the voluntary disclosure was made:

before any ATO contact at all – in which case the base penalty will be 20% of the SGC, or
after initial ATO contact (e.g. a reminder letter) but before any ATO compliance action – in which case the base penalty will be 40% of the SGC.

The ATO will then decide whether to increase or decrease the base penalty rate. Mitigating facts and circumstances that the ATO will consider when looking at whether to remit the penalty below the base penalty are listed in PS LA 2020/4:

a key ATO system (e.g. Small Business Super Clearing House) was out or malfunctioned and the employer can demonstrate that this caused them to narrowly miss the due date for the lodgement due date
the employer or a key employee of the employer was ill
the employer’s non-compliance with their SG obligations occurred in their first year of operation, and their principals had no previous business experience
the employer made a voluntary disclosure of their SGC liability for a quarter and the facts indicate the shortfall arose due to an error or honest mistake
the employer made a voluntary disclosure of their SGC liability for a quarter and the ATO is satisfied that they have addressed the issues that led to their SG shortfalls or failure to lodge SG statements
the employer made a voluntary disclosure and their SG shortfalls are because the employer has correctly identified an individual as not being an employee under the ordinary meaning of the word, but has missed that the individual is a deemed employee because the employee is engaged wholly or principally for their labour – see trap three above
the employer made all required contributions, but was late in paying by a small period, or
the employer participates in a penalty relief arrangement and the ATO gives them an education direction.

These are not the only factors the ATO will take into account.
What steps should I take now?
Employers need to check that they are making the correct compulsory superannuation contributions – and that those amounts are being paid on time.
Employers should particularly check they are correctly calculating ‘ordinary time earnings’, and work through all of their contractors to check they are not caught by the ‘deemed employee’ provisions for compulsory superannuation purposes.
To manage the penalty risk, these steps need to be taken before any contact from the ATO.
If the ATO has made contact, for example by sending a reminder notice, then employers should take action immediately after that contact.
Please contact a member of our team if you would like any assistance.
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In Walker v Greenmountain Food Processing Pty Ltd [2020] QSC 329, the Supreme Court of Queensland found in favour of an injured worker who climbed onto a roof to inspect a boiler failure, at nightfall after drinking alcohol. He was awarded over $960,000 and his damages were not reduced for contributory negligence.
Facts
The plaintiff, Scott Walker, was employed as the maintenance manager of the Greenmountain Food Processing Pty Ltd meat processing plant at Coominya.
On Friday 12 June 2015, after finishing work, Mr Walker had two light beers with a friend at the Coominya Hotel. At about 5 pm, he drove home past the plant and noticed large plumes of steam coming from the plant. He realised it was steam venting from a boiler. Knowing the boiler was crucial to the plant reopening on Monday morning, Mr Walker’s ‘sense of duty’ to his role as maintenance manager led him to investigate.
While talking on the phone with the repair contractor, Mr Walker determined that he needed to know which relief valve was leaking so that repair could occur over the weekend. Light was fading, and time was of the essence.
Mr Walker climbed up the stairs, and accessed the roof area by stepping through a gap in the railing onto a section of roof that was alsynite (polycarbonate). When he stepped onto the alsynite, the roof gave way causing him to fall seven metres to the concrete floor.
Mr Walker fractured his skull and sustained multiple injuries to his spine, knees and wrist.
Liability
The employer argued that it was not reasonably foreseeable that a senior employee would access the roof of the rendering shed, in failing light, after consuming two alcoholic beverages and while talking on a mobile phone, when that employee knew that the roof contained alsynite panels. The employer also submitted it was unlikely that any instruction about safety harnesses would have prevented Mr Walker’s actions.
Justice Applegarth found Mr Walker to be a thoughtful, intelligent and honest witness. He accepted Mr Walker’s evidence (and that of the friend he was with) that he had only had two mid-strength beers over the course of an hour and a half. His Honour did not believe that this would have caused any material impact or rendered Mr Walker under the influence of alcohol.
After methodical consideration of the evidence, his Honour found that:

It was reasonably foreseeable that Mr Walker, or another worker on his instruction, would have cause to go onto the roof to investigate an issue or undertake repair or installation, and the relevant risk of injury from falling off or through the roof was not insignificant.
A reasonable employer’s response was not burdensome or expensive and could have included safety harness training for employees, instruction not to go on the roof without a harness, implementing a policy and safe work method statement for working at heights or fencing off access to the roof.
Mr Walker was a safety conscious, dutiful and compliant, and well-regarded employee. Accordingly, implementing any of the possible precautions would likely have prevented the incident.

Contributory negligence
The employer argued that Mr Walker failed to take care for his own safety on the basis he accessed the roof which he knew had alsynite panels, in failing light, while on his phone.
While Mr Walker was aware that there was an area of the roof that was alsynite, he did not believe it was in the area that he was standing and, given the poor lighting, the difference in roof surface was not apparent to him.
Applegarth J indicated he initially believed that stepping onto the roof, without properly inspecting the surface, in fading light was a departure from the standard of care required of a reasonable person in Mr Walker’s position.
However, his Honour concluded that ‘an employee who has not been adequately protected by an employer should not be found to have been guilty of contributory negligence simply because he was engrossed in his task’.
His Honour found that Mr Walker stepping onto the roof was a momentary misjudgement, falling short of contributory negligence.
Quantum
The primary issue with respect to damages was impairment of future earning capacity.
Mr Walker was only 32 years of age at the time of trial, but had worked his way up from electrician at commencement with the employer in December 2008 to maintenance manager.
Despite his significant, permanent orthopaedic and head injuries, Mr Walker was able to return to his pre-injury role as a maintenance manager and was earning the same wage as pre-injury.
Applegarth J assessed the chances of how a variety of contingencies might impact Mr Walker’s future earning capacity, the most significant being the likelihood of losing his present employment.
The employer denied there was any plan to terminate Mr Walker’s employment and his Honour accepted that evidence. However, his Honour found there was reasonably high chance that Mr Walker would not be able to continue in his pre-injury role for a substantial period and that, if that occurred, his prospects of obtaining alternate full time work on the open labour market were poor.
Applegarth J awarded $765,600 for future economic loss and entered judgment for Mr Walker in the sum of $967,383.39 clear of WorkCover statutory refund.
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The Modern Slavery Act 2018 (Cth) commenced 1 January 2019 and introduced mandatory reporting requirements for larger companies to address the risk of modern slavery in their operations and supply chains.
The Commonwealth Government responded to the COVID-19 outbreak by providing a temporary extension to the reporting deadlines under the Modern Slavery Act. Reporting entities with a financial year ending on 31 March 2020 have until the end of the year to lodge modern slavery statements. Entities that follow the Australian financial year have until 31 March 2021 to lodge modern slavery statements.
Modern Slavery Act and COVID-19
Although the Modern Slavery Act’s mandatory reporting obligations only apply to organisations operating in Australia with annual revenues over $100 million – roughly 3,000 organisations – the Modern Slavery Act’s impacts extend much further. If a business has any dealings with these large organisations, directly or through a third party, its own supply chain may come under scrutiny.
Due to the spread of COVID-19, the Australian Border Force announced extensions of time for businesses that are required to submit modern slavery statements. The table below sets out the new deadlines:

Reporting entities should consider how factory shutdowns, order cancellations and supply chain disruptions resulting from COVID-19 might have affected vulnerable workers in their supply chains and operations. View Cooper Grace Ward’s Modern slavery – uncovering and preventing the risks in your supply chain pre-recorded webinar for more information.
If you require assistance preparing or lodging a modern slavery statement, please contact Cooper Grace Ward’s corporate advisory team.
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The most tumultuous time for separated parents is typically the annual stoush over the summer holiday arrangements and where the children will be on Christmas Day. If you have not reached agreement with the other parent and were hoping the family law courts would assist you in 2020; I have some bad news. If you file an application now, you will not get a return date until well into 2021. Therefore, parents who are yet to resolve these issues will need to compromise and reach agreement between themselves and not rely on the family law courts.
Summer holidays and Christmas for separated parents
Depending of course on the age of your child and their needs, parents often have very different views about how the summer holidays should be divided. Should you simply split these: with one parent having the first half and the other the second; or is a rotating week about arrangement best?
Similarly, parents are often at loggerheads about the Christmas Day arrangements. Most parents would like their child to wake up in their household on Christmas morning; we all remember the thrill of running out of our rooms (as early as our parents permitted!) to find numerous oversized wrapped presents. It can also be a significant extended family day of long drives to visit relatives we have not seen all year.
What happens, though, if you want to take your child away for a few weeks on holiday while the other parent wants a rolling week-about arrangement over summer? What if both of your respective families have significant lunches planned on Christmas Day and each of you wants your child there for an important family bonding experience?
Family law courts and delays
It is well-known that the family law courts in Australia are overwhelmed with cases and there is a large backlog. This means that when a parenting application is filed (or any other application for that matter), your first return date will not be scheduled as quickly as you might expect.
In the Brisbane registry, once your application is filed, your first court date will be scheduled in about three months’ time. I understand that this timeframe is broadly standard across other states.
The only exception is where there is genuine urgency about a serious issue, such as where child abuse is allegedly occurring, in which case the application might be listed much sooner. A dispute about which household a child wakes up in on Christmas Day is not going to be listed urgently.
Obviously, a timeframe of three months takes us well into 2021. Parents who are therefore not already in the family law courts cannot expect to file an application this year and have it listed in time for a judge to make summer holidays or Christmas 2020 arrangements.
What options are left?
If you have been unable to resolve those issues with the other parent already, given that the family law courts will be unable to assist you this year, you really have no alternative other than to ramp up your negotiation efforts.
A common compromise on Christmas Day is for the child to wake up in the household of one parent and then to be collected by the other parent for lunch. This ensures the child can spend time with both parents on the special day and the arrangement can be reversed each year.
Disputes about the length of time a child should spend with their parents over the summer holidays generally boil down to the child’s age and their ability to cope being away from either parent for an extended period. For example, a five year old may be too young to be away from either parent for half of the summer holidays; whereas this might be perfectly appropriate for a 12 year old.
If direct negotiation is not working, there is still time to organise family dispute resolution (such as mediation) this year. Often the involvement of an experienced and neutral third party can help warring parents resolve parenting issues, even if they are only short-term ones.
You should obtain legal advice about parenting arrangements if you have not already. It is very common for new clients to have unrealistic expectations about how much time their child will spend with them (or framed differently, how little time they consider the child should see the other parent) that is not consistent with the social science research or likely court outcomes.
If you have any questions about your options to resolve a parenting dispute, including any specific issues over the festive season, please do not hesitate to contact me or one of the other family lawyers in our workgroup.
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The Associations Incorporation and Other Legislation Amendment Act 2020 (Qld) will introduce changes to incorporated associations in Queensland over the next few years.
While some provisions have already commenced, others are expected to progressively take effect. We have provided an overview of some of the key changes below.
Changes effective from 22 June 2020
Meetings using technology
Incorporated associations may hold meetings using any technology that reasonably allows members to hear and take part in discussions as they happen.
There is no longer a requirement for the use of technology to be provided for in an association’s rules.
Model rules
An express provision has been added to clarify that an association may replace its rules with the model rules at any time (including after incorporation) by special resolution.
Incorporated associations will need to notify the Office of Fair Trading (OFT) of the replacement within three months of the resolution.
As was the case previously, the replacement will not take effect until granted and registered by the OFT.
Introduction of voluntary administration
Incorporated associations may now be placed in voluntary administration if they are experiencing financial problems.
Introduction of voluntary cancellation
As an alternative to the winding up process, incorporated associations have been given the option to apply for voluntary cancellation. An application can be made by the association if it:
(a) has no outstanding debts or liabilities
(b) has paid all applicable fees and penalties under the Associations Incorporation Act 1981 (Qld), and
(c) is not a party to any legal proceedings.
The association must pass a special resolution approving the voluntary cancellation application and providing for the distribution of its surplus assets. Generally speaking, surplus assets must be distributed to another not-for-profit with similar objects and tax concessions (if relevant). An application must be made within one month of a special resolution being passed.
Administrators of incorporated associations in voluntary administration also have the option to apply for voluntary cancellation.
Changes expected by 30 June 2021
The following changes have not yet commenced and are subject to government proclamation.
Using a common seal
It will be optional for an incorporated association to have a common seal. Associations will also be able to choose whether to execute documents with or without a common seal. If associations wish to discontinue use of a common seal, they will need to amend their rules to specify this.
Reduction in annual reporting for charities
The financial reporting requirements under both the Associations Incorporation Act 1981 (Qld) and the Collections Act 1966 (Qld) will be amended to allow for entities registered with the Australian Charities and Not-for-profits Commission (ACNC) to be exempt from state-based reporting requirements.
Practically this means that registered charities will no longer be required to submit annual financial reports to both the OFT and the ACNC. Provided charities have met their financial reporting obligations to the ACNC, they will not be required to report to the OFT.
According to OFT, 3,750 Queensland incorporated association are registered as charities with the ACNC.
Duties of officers
Several new provisions have been added to clarify the duties of officers and management committee members of incorporated associations. The changes are an attempt to bring the governance obligations for incorporated associations in line with obligations that are placed on company officers.
Many of the obligations already applied to management committee members either under the ACNC regime (where applicable) or at common law.
Penalties will apply for breaches of these provisions.
Care and diligence
It will be a legislative requirement for officers of incorporated associations to exercise their powers and discharge their duties with a degree of care and diligence that a reasonable person in the same position would exercise.
An officer who makes a business judgment is considered to have acted with the required degree of care and diligence if the officer:
(a) makes the judgment in good faith for a proper purpose
(b) does not have a material personal interest in the subject matter of the judgment
(c) is informed about the subject matter of the judgment to the extent the officer reasonably believes to be appropriate, and
(d) reasonably believes the judgment is in the best interests of the association.
Good faith
Officers must also exercise their powers and discharge their duties in good faith in the best interests of the association and for a proper purpose.
Not profiting from position
Officers will not be able to use their position, or information obtained from their position, to:
(a) gain a pecuniary benefit or material advantage for themselves or another person, or
(b) cause detriment to the association.
Prevent insolvent trading
Management committee members will have a duty to prevent the incorporated association from trading while insolvent.
It will be an offence for a person who was a management committee member, or who took part in the management committee, to incur a debt if:
(a) the association was insolvent at the time the debt was incurred or becomes insolvent by incurring that debt, and
(b) immediately before the debt was incurred there were reasonable grounds to expect that:
(i) the association was insolvent, or
(ii) if the association incurred the debt, the association would become insolvent.
It is a defence if the individual proves that:
(a) the debt was incurred without their authority or consent
(b) they did not take part in the management of the incorporated association at the time the debt was incurred due to illness or some other good reason, or
(c) at the time the debt was incurred, they had reasonable grounds to expect, and did expect, that the incorporated association was solvent even if it incurred that debt and any other debts that it incurred at that time.
Matters of material personal interest and remuneration
Management committee members who have a material personal interest in a matter being considered at a management committee meeting must disclose the nature and extent of the interest:
(a) to the management committee as soon as they become aware of the interest, and
(b) at the next general meeting of the association.
If a committee member has a material personal interest being considered at a management committee meeting, the member must not be present at the meeting or vote on the matter unless permitted to do so by the management committee.
Additionally, management committee members must disclose at the annual general meeting for the association details of remuneration paid or other benefits given to management committee members, senior staff and relatives of those individuals.
Penalties apply for breaches of these provisions.
Extended powers of OFT inspectors
The Fair Trading Inspectors Act 2014 (Qld) (FTIA) has been amended to incorporate investigations under the Associations Incorporation Act 1981 (Qld).
This change gives OFT inspectors powers available under the FTIA to investigate incorporated associations including entry and seizure powers, such as the power to enter a place where an incorporated association carries out its activities, holds its meetings or keeps its records. Some powers under the FTIA will not extend to investigations of incorporated associations. For example, inspectors will not have the power to stop and move vehicles, or the power to obtain criminal history reports.
Changes expected by 30 June 2022
Internal grievance procedure
Incorporated associations will be required to have an internal grievance procedure in place. Associations have the option to include this procedure in their rules. If an association fails to implement a procedure by the required date it will be required to observe the grievance procedure in the model rules.
This change has not commenced and is subject to government proclamation.
What do officers need to do?
Incorporated associations should consider any changes that need to be made to their governing documents to ensure compliance with the new requirements as they become law. Officers of incorporated associations should also familiarise themselves with their new and potential future obligations.
Please contact our team if you would like to discuss the new legislation or any other matters affecting your incorporated association.
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