As everyone knows, the COVID-19 Pandemic is having an unprecedented impact worldwide. Even though the restrictions are currently easing in Queensland, unfortunately the pandemic may still have a significant effect on your conveyance and for that reason we are here to help you out more than ever!
How can we help you during the COVID-19 pandemic with your purchase?
To ensure that we can assist our clients with the same level of service during COVID-19 as we do at other times, we have:

kept both our Brisbane and Sunshine Coast offices open with normal operating hours so that we are able to be contacted with ease at any time;
have been available for the witnessing of any legal documents which we would have otherwise not been involved with which has greatly assisted buyers and sellers in meeting timeframes for conditions and settlement under the contract; this has helped given the limited availability of Justices of the Peace and Commissioners for Declarations.;
taken extra precautions to ensure that any client meetings are spaced out in our large boardrooms with no physical contact;
implemented client meetings via skype, zoom and Microsoft teams;
set up our IT systems to ensure you are able to contact us and work with us wherever you may be;
used PEXA (more information on PEXA can be found here) to ensure that there has been no face to face contact, unless absolutely necessary with clients or other parties; ‘PEXA’ stands for Property Exchange Australia and is the only Electronic Lodgement Network;it is a faster and smoother way for matters to settle as opposed to physically attending settlement and exchanging physical documents.
been using online verification of identity by sending links to your phones and emails so that you do not have to physically attend our office or a Post Office.

Is there anything extra needed to be done by you?
You don’t have to physically do anything extra, however there are more factors for you to take into consideration prior to signing a contract during these times. Some of these factors are:

longer timeframes for finance, building and pest and any other condition under the contract as they could be impacted by further closures or unavailability of parties (including financiers);
special conditions specifically regarding any change of circumstances which may come around under COVID-19; and
some conveyancing steps and processes may take longer due to the relevant authorities not all being available as they usually would be. This includes things like undertaking searches, obtaining independent reports or approvals and signing of documents.

It is important that you speak with us first so that we can provide you with the relevant advice and guidance prior to signing a contract to try and work around these factors during the pandemic.
Who should you speak with to assist with your purchase?
If you are getting cold feet or sweating over entering into a contract, contact us. We will be able to walk you through the process and make sure that you’ve got all the conditions and timeframes you need to protect you by ensuring that you make all enquiries in relation to your purchase.
Our team have acted for thousands of clients wanting to buy houses, units, and land. Contact our team today to discuss your options when buying a property during the current Coronavirus pandemic.
The post Buying a property during COVID-19 appeared first on FC Lawyers.

As an increasing number of Australians move into retirement villages, or the popular “Over 55 Lifestyle Estates,” it is important to view the issues that can arise and the different types of arrangements that Retirement Village Operators may use. While this may seem like a simple, straight-forward process, the purchase of a unit in a retirement village, in reality is quite complex. These types of transactions are covered by multiple pieces of intricate legislation, and there are many pitfalls which purchasers may be unaware of until after settlement, when it is too late.
The current Retirement Villages Act 1999 (Qld) (Retirement Villages Act) does not prescribe how a resident holds title to their unit in the village. Instead, it refers to a concept called a ‘right to reside’.
As a consequence, there are various arrangements devised by operators to record a resident’s right to reside in a unit including:

Leasehold
Freehold
Loan & Licence Agreement
Rental Arrangements

There are a variety of different forms of documents utilised by retirement village operators depending on how their scheme is set up, the main examples being as follows:
Every person in a retirement village who is a resident has a right to reside granted by their residence contract.
Leasehold
A leasehold arrangement is the most frequently found operating model of retirement villages and a high level of security is provided to the resident as the lease of the unit is generally registered on the village’s title.
The resident has an exclusive right to reside in an accommodation unit under the residence contract which includes a lease to the resident from the scheme operator.
In these arrangements the resident pays an ingoing contribution, which is in effect an interest free loan, to the operator for the right to reside. They will also need to pay ongoing fees for services offered by the provider.
Under leasehold arrangements, the residents sign leases in respect of their individual units and the provider owns the entirety of the facility. Usually these leases have a period of 99 years, and accordingly, they may be sold or ‘assigned’ many times to many different residents over the years.
Ultimately, it is important that the client understands that usually they are not purchasing real property within a retirement village, but rather the right to reside in the property (under the lease agreement).
The resident (or their estate) will usually be entitled to the purchase price paid by the new resident or ‘assignee’ less any periodic fees owing and an exit fee, upon selling or ‘assigning’ the lease. These fees may be made up of a number of components and which will generally increase for each year since the resident signed the lease. The resident may also need to pay the village a share of the capital gain upon the sale of the unit, in addition to the exit fees.
Freehold
Freehold Retirement Villages differ in that the unit and land it stands upon are wholly owned by the resident. Usually in the form of community title schemes, freehold ownership can offer a sense of security and control to residents, and they also have a right to vote as part of the body corporate.
A resident would purchase the premises by entering into a Contract for Sale of Land with the existing registered proprietor, which may be the village operator if the premises have never been lived in before or otherwise an outgoing resident/executor.
The resident will become the registered proprietor of the Lot within the community title scheme for the premises, upon settlement of the Contract, all lot owners become members of the body corporate by means of their ownership of a lot within the community titles scheme and liable to make payment of the relevant community titles levies for the scheme. As a result of membership of the body corporate, each resident owns their unit or ‘lot’, along with a fractional interest in the common property (which may include the hallways, grounds and shared facilities) under a community titles scheme
All common property is owned by the lot owners/residents and all contribute via the Body Corporate Sinking Fund and Administrative Fund in a freehold village.
The repairs and replacement of all items within the boundary of the Lot are the responsibility of the owner/resident, including all capital items within the unit.
No permission is needed for alterations made to the inside of your unit but outside alterations usually need body corporate permission.
Loan & Licence Agreement
Some Retirement Village Operators will offer residents a right to occupy which is often the least costly approach for residents but also offers the least security as the resident’s interest is not registered on the land’s title.
Under this arrangement, the resident makes a cash interest free loan to the operator in exchange for the right to reside which is very similar to a leasehold arrangement. These agreements provide the resident with a contractual licence to occupy the unit. The upfront, interest-free loan is usually termed the ‘ingoing contribution’ or ‘refundable accommodation deposit’. The term of the licences under loan and licence agreements is usually for the life of the occupant or licensee contrary to leasehold agreements which are generally for 99 years. A licence does not provide the same level of security as a registered lease as the licence and financial interest are not registered with the Queensland Land Registry.
The village operator must maintain the capital items in the premises that do not belong to the resident.
Upon the passing or vacation of the unit by the licensee, the licensee will generally be entitled to the ingoing contribution they paid less any ongoing fees owing and an exit fee.
Rental Arrangements
Typically, this type of arrangement involves a residential tenancy agreement whereby an individual pays rent for a house to live in. There is generally a bond payable at the commencement of the tenancy, along with ongoing regular rental payments and other costs associated with the tenancy, as you would under a standard tenancy agreement.
There are no Ingoing Contributions and no Departure Fees with this type of arrangement. Some of the support services offered by the facility may be factored into the rental payments. However, this type of arrangement is becoming less common compared to the other options discussed.
Retirement village contracts are often voluminous; however, this is due to the onus on villages to satisfy certain disclosure requirements and regulatory provisions under the Act.
Before entering into a retirement village contract, a resident should seek independent legal advice to ensure they fully understand his/her rights, financial commitments and other obligations under the retirement village contract and the Act.
Contact our team today to discuss your retirement village needs.
The post Retirement Villages – Right to Reside appeared first on FC Lawyers.

How to protect your equity in your house or assets against claims from unsecured creditors
In today’s world it is risky being in business. Your assets, including your house, can be on the line. One of the most effective strategies you can put in place to protect your assets is commonly referred to as a gift and loan back strategy.
This is a very tax-effective strategy and in its simplest form involves managing risk by removing the value of your assets, out of your name. Effectively, you remove the asset from a high-risk environment to a low-risk environment. High-risk broadly means where you are at a higher risk of being sued or otherwise having your assets subject to creditors.
The benefit of this strategy is that it can occur without transferring the legal ownership of the asset itself.
With proper planning, it can be a simple staregy to implement.
What kind of assets can be used?
Generally, this type of arrangement will involve real estate and a mortgage will be registered at the Land Titles office.
If no real property is available to be used, personal property can be used, and security can be registered with the Personal Property Securities Register (PPSR).
How does this occur?
Consider Dan owns one hundred per cent (100%) of an investment property.
The value of the investment property is $1 million. Therefore, the equity is $1 million.
By using a Trust or forming one and ensuring the correct documentation is prepared, the Trust becomes a secured creditor protecting the house against any unsecured creditors, if they pursue you.
The steps to the arrangement are:

Dan owns 100% of his House valued at $1 million
Dan lends $1 million to the DAN Trust
The DAN Trust then lends the $1 million back to Dan
The DAN Trust then takes a security over the House by way of a mortgage

Do I need cash to do this?
This strategy is often an internal one. There is no requirement for cash, and it is possible to use a negotiable instrument against the available equity in the asset.
What are the tax implications?
Generally, there are no adverse tax or stamp duty implications if the documentation is correctly prepared.
Can it be overturned in bankruptcy or at law?
Bankruptcy or corporate law clawbacks may occur where a gift or ‘under value’ transaction has occurred within five years of the party becoming insolvent.
This period is generally reduced to four years if the party can show they were solvent at the time of the transaction. For this reason, a solvency statement will generally be requested from your accountant.
However, if the transfer was done purely for the purpose of avoiding creditors, there is no limit on time.
What do I need to do?

The arrangements need to be carefully discussed with both your legal and accountant/financial advisors
The arrangement needs to be constantly reviewed to ensure any changes are accurately captured
You have to be proactive about getting advice about the appropriateness of this type of arrangement so that the clock starts ticking on bankruptcy clawback times
You must get advice to ensure the Trust that will make the secured loan does not itself conduct any risky business or other activities
If there is a third party financier who already has a mortgage or security over the asset, they will generally require a deed of priority securing their lending as a first priority before the Trust’s second mortgage.

To effectively implement this strategy, you must ensure the legal documentation is correct. It will include a deed of gift, loan contract and a mortgage or security document. It may also require consultation with your financier if there is a loan or mortgage over the asset to ensure they consent to the arrangement.
How do I start a gift and loan back strategy?
At FC Lawyers, we have acted for a wide range of clients and worked with their accountants and financial advisors to put these arrangements into place.
Contact our team today to discuss your current situation.
The post Asset protection through a gift and loan back strategy appeared first on FC Lawyers.

The Terms and Conditions (Ts & Cs) of Trade go to the heart of any relationship with a business and its customers and/or clients.
It is important that any business has clear and unequivocal Ts & Cs to ensure commercial expediency when forming a contract with their customers. It is the cornerstone of being able to manage that relationship.
In today’s modern world where contracts for the provision of goods and services can be formed in person, over the phone, online or through a myriad of different ways, it is important that a customer understands that a business has Ts & Cs available and easily accessible.
Due consideration must also be given to how your Ts & Cs will be affected if the customer is overseas and in another jurisdiction.
It is also important to distinguish between Ts & Cs for different types of orders if that is something unique to your business.
Communication in simple language which is clear and concise is not negotiable. It is imperative that a customer understands when and under what circumstances they have accepted a business’s offer to provide the goods and services.
What should be included in your Terms and Conditions?
Some of the matters a business must consider the following matters when drafting your Ts & Cs:

Payment terms
Consequences for not paying
Delivery times and terms
Can you contract your obligations to third parties?
Warranty terms
What is the refund policy?
Limitation of liability under statutory warranties
When does title pass in the goods?
Will there be a provision for security interest in the goods under the PPSA and subsequent registration on the Personal Property Securities Register (PPSR)?
What is the standard that any services must comply with?

Also, it is not worth trying to put in Ts & Cs which will not be enforceable due to the impact of Australian Consumer Law (ACL) where businesses who supply goods and services are taken to give certain consumer guarantees that cannot be contracted out of, including guarantees as to such as:

Acceptable quality
Fitness for any disclosed purpose
Due care and skill
Reasonable time for supply
Exclusion of all and any warranties
Exclusion of all liability even for defective goods or services

Other types of clauses will be impacted by legislation regardless of what is in the Ts & Cs. By way of example, the ACL provides that if a supplier uses a standard form consumer or small business contract which contains an unfair term, the term will be considered void.
A business’s Ts & Cs will usually be considered a standard form contract as they will be prepared in advance and not be subject to negotiation. The ACL provides examples of unfair terms, which include provisions that allow one party but not the other to:

Assign the contract
Avoid or limit performance
Renew or not renew
Terminate the contract
Vary the price without given the customer the right to terminate the contract
Vary the terms of the contract

To avoid the unfair contracts regime, you can allow customers the right to negotiate terms and conditions or to clearly notify the customer of which Ts & Cs in the contract give unilateral rights to the business.
At FC Lawyers we have considerable expertise in drafting Ts & Cs for both large and small businesses in a variety of industries.
Contact our team today to discuss your options in drafting Ts & Cs for your business, or if you have current Ts & Cs, to review them to ensure they are the best fit for your business.
The post Terms and Conditions of trade for your business appeared first on FC Lawyers.

One of the most important assets of any business is its employees and it is imperative that when you are buying or selling a business, you appreciate how they are going to be dealt with during the process. It is very important that you get expert legal advice in relation to your obligations with employee entitlements.
Employee entitlements – what to consider?
Consideration must be given to who will be responsible for existing long service leave, annual leave and sick leave entitlement of the employees.
A buyer of a business is not required to re-employ any existing employees.
A seller must consider whether an employee will be retrenched, if the buyer chooses not to re-employ the employee. Some awards, or employment agreements, may consider this to be a retrenchment. There may be obligations under the relevant award or employment agreement to give the employee notice of termination.
The REIQ business sale contract in Queensland has a standard condition which states:

EMPLOYEES

See Item Y.
This clause sets out the process for the termination of employees from the seller and the re-employment of employees by the buyer.
This is a complex clause and is very important if the Business has employees. Both the seller and the buyer should obtain legal advice prior to entering into the Contract if they do not understand the implications of this clause.
Any employee of the Business re-employed by the buyer is considered to be a “Transferring Employee” and the buyer will be responsible for all accrued entitlements from the date the Employee commenced employment with the seller (or any previous owner of the Business).
Consequently, the seller must reimburse the buyer at Completion for 70% of such accrued entitlements. The Contract explains in Appendix A that it is only 70% “since the buyer will get a tax deduction when the employee entitlements are paid”. Whilst, the net effect of any tax deduction will vary from buyer to buyer, the 70% apportionment is generally fair. However, if your circumstances warrant a variation, you should obtain legal advice.
If you notify the Seller that you will employ an employee but don’t offer them employment in accordance with standard condition 18.3, you will be responsible for any redundancy payments due to that employee arising from the Seller’s termination of their employment on or within 12 months after Completion. If an offer is properly made but rejected by the employee, or if you did not notify a desire for that employee, the Seller is responsible for their redundancy payments.
The standard condition basically states that in relation to employees that are re-employed by the buyer, the selling price be reduced by 70% of existing employee entitlements consisting of annual leave, sick leave or long service leave (only for employees that are employed for at least five years). Thereafter, the buyer will be solely liable to pay the employee entitlements.
Therefore, you should be very careful when signing a standard REIQ business sale contract and get expert legal advice to consider whether you want to amend this clause or replace it with another clause to adjust your rights and obligations.
Your lawyer should consider if you do amend this clause whether there are any legislative obligations which may make void any amended clause relating to employees.
It is important to note that companies fall under federal jurisdiction. Individuals and partnerships (not involving companies) fall under state jurisdiction.
Trusts will usually be determined on the category of the trustee. Where a company is trustee it is considered federal jurisdiction and an individual as trustee is considered state jurisdiction. If state legislation applies, then the sale of a business is considered a continuation of employment.
If federal legislation applies, it is not automatically a continuation of employment unless the seller and buyer of a business agree to this in writing. The only entitlement that automatically transfers over is the period of service to enable an employee to qualify for unpaid maternity leave.
Regardless of what the contract states, annual leave, sick leave and long service leave transfer to the new buyer of the business. If you are a buyer and do not adjust employee entitlements with the seller, you will be left ultimately responsible.
This is a very complex area of law and it is very important to seek expert legal advice.
At FC Lawyers, we have acted for business large and small in various industries when buying and selling businesses.
Contact our team today to discuss your legal options reagrding employee entitlements when buying or selling a business in Queensland.
The post Employee entitlements when buying or selling a business in Queensland appeared first on FC Lawyers.

The Commonwealth Government has moved quickly it would seem to stop foreign nationals buying up Australian assets at bargain basement prices in the current crisis.
The threshold for any foreign investment from Sunday 29 March 2020 is now $0.
The Treasurer announced that all proposed foreign investments into Australia subject to the Foreign Acquisitions and Takeovers Act 1975 (the Act) will require approval, regardless of value or the nature of the foreign investor. You can read the changes to the foreign investment framework from The Hon Josh Frydenberg MP, here.
The Treasurer said:
“In doing so, the Government will prioritise urgent applications for investments that protect and support Australian business and Australian jobs.
Even in these uncertain times, Australia continues to welcome foreign investment, which remains vital to our long-term economic success and stability. The Government recognises that foreign investment will play an important part in helping many businesses get to the other side – securing jobs and supporting our economic recovery.”
FIRB is currently updating its website with the changes now and will have full information on the website in due course.
FIRB has indicated to ensure sufficient time for screening applications, applicants will be contacted by FIRB and asked to request that the decision period for foreign investment application involving significant actions and/or exemption certificates be extended by up to 6 months from the date that their application fee is paid. This will extend your statutory deadline to 6 months does not mean that your application will take the full six months to process.
It is clear the Government will prioritise urgent applications for investments that directly protect and support Australian businesses and Australian jobs, taking account of any commercial deadlines related to those proposed investments.
Foreign Investment Review Board – What should you do next?
At FC Lawyers we have experience in a wide range of FIRB applications for businesses, individuals, accountants and advisors.
Our team is more than happy to discuss your requirements in relation to the Foreign Investment Review Board framework and FIRB applications.
Contact our team of property lawyers today.
The post Foreign Investment Review Board (FIRB) changes in response to global pandemic appeared first on FC Lawyers.

Embarking into the world of business requires careful planning and an understanding of your legal and financial obligations.
There are several ways of entering into business. You can buy an existing business, buy the shareholding in an existing corporate business, buy a franchise or set a business up from scratch.
On the other side of the equation is when you decide to sell a business. It also requires careful planning and consideration to ensure you obtain the maximum return and are not burdened with any unforeseen consequences.
Setting up a business
Starting a business from scratch will require careful consideration and planning.
When setting up a business, you need to:

Define your unique selling point
Engage a good lawyer and accountant
Create a business plan
Protect your intellectual property including registering web domains, logos and trademarks
Set up your business structure
Set up a business bank accounts and financing arrangements
Arrange business insurance
Register for taxes
Develop a marketing and social media plan
Consider what technology you will use and protect your data
Ensure you have practices and procedures in place to operate the business.

Buying a Business
When looking to buy a business you need to undertake a full due diligence on the business.
You will need to:

Review the business and company structure to see if it’s appropriate
Review the business records
Consider the financial information
Check any licenses, permits or statutory obligations the business might need to operate
Understand employee rights and obligations
Review the Leases, licenses etc. relating to any premises the business operates from
Consider and review any contracts or agreements the business has with suppliers, customers and third parties
Review the asset lists and any encumbrances that may be over them
Review and consider any warranties or other obligations the business has which may become your responsibility
Check the stock and the levels required to operate
Consider the economic environment it operates in and any competitors
Review the trademarks, patents or other intellectual property of the business.

The above list is a broad indication of what is required and is by no means exhaustive. Each business will require careful consideration of what due diligence will need to be carried out.
Once the due diligence has been carried out you will need to consider the type of contract you will enter and how to finance the purchase. You may decide to purchase the business in a new structure, or you may decide to purchase the shares in the current structure. All of these issues need to be considered from a legal perspective.
Selling a Business
When you consider selling your business, it is very important that prior to entering any contract for sale you must:

Consider the taxation consequences of the sale
Consider how you will deal with adjustments for liabilities such as employee entitlements and compliance with statutory disclosure obligations
Ensure all your business and financial records are up to date
Determine how you will value the business and how to justify the proposed sale price
Prepare schedules of debtors and creditors
Prepare a full asset schedule
Collate all your lease, ownership or rental documents relating to the premises.

Again, this list is not exhaustive and will need to be reviewed considering nature and type of business being sold.
Heads of Agreement when buying or selling a Business
Often the first step before entering a formal contract will be a Heads of Agreement. This is a proposal of key terms that both the buyer and seller would like the sale contract to include.
A Heads of Agreement is usually a non-binding document. It will include a disclaimer that the proposal is not binding until both parties execute the formal sale of business contract.
The Heads of Agreement also can help to reduce your legal costs. Negotiating the terms in advance makes it easier for your lawyer to write the sale of business contract.
The Contract
In Queensland, the standard sale of business contract is the ‘Real Estate Institute of Queensland (REIQ) Sale of Business Contract’.
It’s a good idea to use this contract in many situations when buying a business in Queensland so that you know you’ve covered the important terms.
However, some contracts may need to include extra clauses or special conditions into your contract. Other contracts may be applicable to share sale agreements and other more unique contracts.
Business structures
Your business structure affects your business taxes, liabilities, ownership and profitability.
The four most common business structures are:

Sole proprietor (owned and run by an individual)
Partnership (arrangement of people to carry on business in common but not as a separate legal entity)
Company (body corporate which is a separate legal entity from its shareholders)
Trust (holding property for the benefit of one or more persons)

When you are planning to carry on business with another person, it is critical to ensure that there is a clear understanding and agreement with your partner or shareholders on how the business will be managed. Therefore, it is important to consider such other legal documents such as shareholders agreements.
Leases
If your business has a lease, you will need to ensure that the landlord will agree to assign the lease over.
If the lease is a retail lease, before consent can be given, the Retail Shop Leases Act 1994 (Qld) (the Act) requires that the landlord, assignor (business seller) and assignee (business purchaser) must follow the disclosure requirements.
Both the assignor and assignee must exchange a disclosure statement at least seven days before seeking the landlord’s consent. The landlord must also provide a disclosure statement and a copy of the lease to the assignee at least seven days before consenting to the assignment.
The Act also requires that:

The assignee and the assignee’s lawyer sign a statement acknowledging that the assignee received legal advice about the lease; and
The assignee and the assignee’s qualified accountant must sign a similar document to demonstrate that the assignee has received financial advice.

Transfer Duty
When you buy a business in Queensland, you may need to pay transfer duty on the transfer of business assets.
Business assets can include any of the following:

Goodwill
A right to use a statutory business licence
The business name/s
A debt of a business if the debtor lives in Queensland
A right under a franchise arrangement
Intellectual property; and
Personal property such as equipment and trading stock.

Your contract will state which business assets are being transferred. Your lawyer and accountant will be able to assist you with whether you will have to pay any transfer duty, and if so, how much.
Conclusion
The more preparation you do before setting up, buying or selling a business in Queensland, the better your chance of success.
At FC Lawyers, our team can assist you with:

Director or partner duties and obligations
Employer and employee relations
Debt recovery
Copyright and trademarks
Consumer protection and trade practices
Superannuation.

We have worked with thousands of clients in their business endeavours in a wide variety of industries and professions throughout Queensland and Australia.
Contact our team today to discuss your legal options when setting up, buying or selling a business in Queensland.
The post Setting up, buying or selling a business in Queensland appeared first on FC Lawyers.

To say that commercial landlords and tenants are facing challenging times is an understatement! The effects of the novel coronavirus COVID-19 are pushing countless businesses to the limit.
The lease relationship is crucial to the businesses and finances of both landlords and tenants, and the lease document is at the centre of this.
The age-old questions “What happens where a tenant can’t afford the rent?” and “Can I get out of my lease?” are being asked constantly at the moment.
The answer for both landlords and tenants is: Get legal advice early, and then communicate.
Each lease is different. Knowing your rights and obligations is important as the starting point before communicating with the other party.
Our team can review your lease and identify the sections which hurt or help you in this situation. The fine print of the lease is important!
When deciding how to approach the other party it is important to base your approach on the legal situation, but also on the context of your relationship.
It is often possible to work together and face the challenges and come out the other side with a stronger commercial relationship. Or, if things go pear-shaped, you need to know what to do.
Want to know more about your commercial lease obligations in a pandemic?
We can help both landlords and tenants of retail shops, offices and commercial premises, and industrial premises.
Contact our team of commercial leasing lawyers to discuss your lease obligations today.
The post Commercial Lease obligations in a pandemic appeared first on FC Lawyers.

In Australia a consumer is protected when they purchase any goods and services by the Trade Practices Act 1974 (Act).
A consumer is a person or corporation who acquires:

goods or services normally meant for personal or household purposes
any other type of goods or services costing less than $40,000
a commercial road vehicle or trailer used mainly to transport goods on public roads

A person or business that acquires goods in order to on-sell them or to make a profit is not a consumer.
The Australian Competition and Consumer Commission (ACCC) enforces the Act and can:

Investigate complaints and take action against business who have sold the good or provided the services
Educate consumers and businesses about their rights under the Act
Suggest solutions to consumers and businesses to resolve disputes

Supply of Goods
All contracts for goods protect consumers by including a number of statutory conditions and statutory warranties.
The statutory conditions require that:

Goods must be of merchantable quality
Goods must be fit for their intended purpose
The goods must match the description given to the consumer
The consumer must receive clear title to the goods

The statutory warranties require that:

The consumer will enjoy quiet possession of the goods
The goods are free from any charge or encumbrance that has not been disclosed

Supply of Services
All contracts for services contain a number of statutory warranties that require that:

Any service must be carried out with due care and skill
Any materials supplied in connection with the service must be reasonably fit for purpose for they are supplied
The service, and any materials supplied in connection with the service, should be reasonably for any particular purpose they consumer made known to the seller

What are the remedies open to a consumer?
If goods do not meet a statutory condition or warranty and the contract is breached a consumer can be entitled to:

A refund
Have the goods replaced
Have the goods repaired

It should be noted that remedies are not limited to a set time and can be available to a consumer even after a manufacturers voluntary extended warranty expires.
The Act also give the consumer the right to pursue the manufacturer and importer of the goods.
Where the dispute relates to services a consumer can:

Have the services supplied again
Receive payment for the costs of having the services supplied again
Compensation for any loss

It is against the law for a seller to do anything that leads consumers to believe their rights are limited, or do not apply – for example, by claiming that no refunds will be given under any circumstances.
Any misleading claims a business makes about a consumer’s statutory rights are invalid and do not affect a consumer’s right to obtain a remedy for a breach of a statutory condition or warranty.
The ACCC has the ability to take court action against sellers for misleading consumer and impose fines of $1.1 million for businesses and $220,000 for individuals.
Get Advice on Warranties and Refunds
At FC Lawyers we have advised consumers, businesses large and small relating to their obligations.
If you need an obligation free quote to discuss any issues with Warranties and Refunds, please don’t hesitate to contact us.
The post Warranties and refunds – what a business needs to know appeared first on FC Lawyers.

Employers all over the country are struggling with how to look after and manage their workforce and employees. There is no doubt we are in unprecedented times not just here in Australia but across the globe.
Employers and businesses are facing significant workplace health and safety, logistic, supply chain and financial issues and pressures.
An employer at law has employer obligations to protect their employees’ health and wellbeing.
It is important that you understand your legal and statutory obligations including:

Explaining and attending to workplace hygiene
Having a plan in place to identify and control risks to employees
Providing the latest up to date information in relation to the risk
Controlling visitors, clients and customers to premises under your control
Polices to work from home or in isolation

In the current climate it is an opportune time for businesses to review and understand their obligations and legal requirements relating to:

Insurance
Workers Compensation
Leave
Redundancies
Travel policies

In the worst-case scenario of a workplace being shut down either voluntarily or as a result of government action, it is imperative that you have well thought out and clearly articulated contingency plans in place for your employees.
Internal and external communication is incredibly important when dealing with this pandemic which has no boundaries. For up to date information on the coronavirus (COVID-19), please visit the Australian Government Department of Health website here.
At FC Lawyers, we have assisted many of our clients both large and small to understand and implement polices to protect their personal and business interests.
Contact our team today to discuss your employer obligations and business legal needs.
The post Employer obligations to employees in the coronavirus (COVID-19) pandemic appeared first on FC Lawyers.

In these increasingly uncertain times, both in Australia and globally with Coronavirus (COVID-19) the terms Force Majeure and Frustration is increasingly being discussed in the context of commercial contracts.
What is Force Majeure?
This is commonly known as the ‘Act of God’ clause. In very simple terms it is an event beyond the control of either party to a contract that prevents or hinders the performance of that contract.
When the clause is enacted in a contract the Force Majeure clause will suspend the contractual obligations during that period and those contractual obligations will not recommence until the event has ended.
Generally, the contract will provide a definition of Force Majeure and will include such events as:

Government action
Health events such as epidemics or pandemics
Industrial action
War
Weather events

It is very important to understand what Force Majeure events are covered in a contract and when they can be enacted.
A party relying on any Force Majeure event must also take reasonable steps to mitigate the affect on the party to the contract.
Not all Force Majeure clauses are the same and they can have vastly different outcomes.
What is Frustration?
Frustration is a common law doctrine which provides that where there hardship in performing the obligations under the contract and they are “radically different” from those contemplated by the parties to the contract and performance becomes impossible there should be an automatic mutual discharge of the contract, with neither party being at fault.
There are some remedies that a party can claim if a contract is frustrated and each matter will be considered on the basis of the individual contract.
What should I do?
The business community and individuals in the face of the current uncertainty surrounding the Coronavirus have become increasingly concerned with the legal issues arising out of the ability to perform contracts, honour lease arrangements and associated legal obligations.
It is important to get advice at an early stage.
At FC Lawyers we have been helping our clients to understand what their current obligations together with their future obligations.
Contact us for an obligation free initial discussion regarding your commercial contract and legal rights.
The post Force majeure and frustration in commercial contracts and coronavirus (covoid-19) appeared first on FC Lawyers.

Over the past few years the restaurant industry has been shaken by the revelations of underpaid staff by high-end restaurants such as Dinner by Heston and those belonging to George Calombaris’s empire.
In 2019, George Calombaris’s MAdE Establishment back paid $7.8 million in wages and superannuation after underpaying 500 current and former employees, whilst more recently (2020) Dinner by Heston owed at least $4.5 million in underpayments following an administrator’s report.
Although auditing may shed light on the dark corners of wage theft and poor (if not deliberate) accounting and/or management methods, restaurant staff can play a pivotal role in ensuring they do not fall victim to underpayment. The key questions to consider are:

Does an Award apply to my employment?
Which Award applies to my employment?
What are my entitlements under the Award?

Restaurant Industry Award 2010
If you work in a restaurant, whether as a food and beverage attendant, kitchen staff (not including Chefs), administration (clerks), store person, security or a handyperson (not a tradesperson), you are likely covered by the Restaurant Industry Award 2010 (‘the Award’).
The Award sets out the minimum terms and conditions of employment in addition to those outlined under the National Employment Standards (NES).
Employers and employees may agree to vary the terms of employment set out under the Award, as long as such variations result in the employee being in a better position than under the Award. Under clause 7 of the Award, an employer and employee may vary the following terms:

arrangements for when work is performed (excluding clause 32); or
overtime rates; or
penalty rates; or
allowances; or
annual leave loading.

Increased Salaries and Overtime
Often employers and employees enter into (or attempt to) an arrangement where the employee’s salary is increased in full satisfaction of other entitlements such as overtime. This can be a dangerous exercise and perhaps outside the boundaries set by clause 7 of the Award, as an employee may work overtime which, over the period of a year, results in the employee accumulating wages above the salary agreed to. If an employee works overtime, such overtime will be payable should the employee’s payable hours exceed their salary. An employer cannot contract out of the minimum entitlements set out under clause 33 of the Award.
This does not mean employers should only pay staff the minimum wage, but certainly should avoid an all-encompassing salary that may fall short of an employee’s minimum entitlements.
If you are a restaurant employee who works overtime, you should consider keeping track of such overtime worked to ensure you are not being underpaid over the course of a year (or more).
Reasonable Additional Hours
A common misconception is that the NES provides that an employer may request an employee to work reasonable additional hours as part of their standard wage or salary in all circumstances. The Fair Work Ombudsman clarifies that although the NES applies to all employees covered by the national workplace relations system, reasonable additional hours must take into consideration where an employee is entitled to receive overtime payments, penalty rates or other compensation for working additional hours. Where an employer requests that an employee works reasonable overtime, overtime can only be reasonable so long as the following is considered:

any risk to health and safety from working the extra hours;
the employee’s personal situation, including their family responsibilities;
the workplace’s needs;
if the employee is entitled to receive overtime payments or penalty rates for working the extra hours;
if they are paid at a higher rate on the understanding that they work some overtime;
if the employee was given enough notice that they may have to work overtime;
if the employee has already stated they can’t ever work overtime; and
the usual patterns of work in the industry.

An employee can refuse to work overtime, if the request is unreasonable. Pursuant to clause 33 of the Award, restaurant employees are entitled to overtime and penalty rates for any additional hours requested/worked. Thus, it may be unreasonable for a restaurant employer to request an employee to work additional hours without additional pay.
Changes to the Award
Every 4 years the Fair Work Commission (‘FWC’) reviews modern awards. On 23 January 2020, the FWC provided a determination for immediate changes to the Award. There are 3 major changes outlined, being:

changes to clauses relating to apprentices, by effectively introducing a competency-based progression and amended the apprentice wages and allowances;
changes to clause 39 relating to any deductions made with respect to wilful misconduct; and
changes to clause 32 relating to break provisions for employees working 5 or more hours, or more than 10 hours.

These changes can be difficult to understand, and you should consider seeking expert advice before making any deductions or payments pursuant to these changes.
If you are a restaurant employee or employer and you are concerned about wages and/or entitlements under the Award, please do not hesitate to contact me.
The post Restaurant Employees – Are you being served the wrong wage? appeared first on FC Lawyers.

On November 1, 2018 the Australian Financial Complaints Authority, or AFCA, commenced to receive complaints from consumers and small business.
What is the Australian Financial Complaints Authority (‘AFCA’)?
AFCA is not a government department or agency and is not a regulator of the financial services industry. AFCA are a not-for-profit company, limited by guarantee that is governed by a Board of Directors, which includes equal numbers of industry and consumer representatives.
AFCA is the new Ombudsman responsible for providing fair, independent and effective solutions for financial disputes by working with consumers, small business and the financial services sector. It replaced the Financial Ombudsman Service (FOS), the Credit and Investments Ombudsman (CIO) and the Superannuation Complaints Tribunal (SCT).
All Australian financial services licensees, Australian credit licensees, authorised credit representatives and superannuation trustees are required to be a member of the Australian Financial Complaints Authority  under their financial services licence conditions, in accordance with ASIC Regulatory Guide RG 165. An example of the organisations that are members of AFCA are:

banks and other credit providers
financial planning firms
general insurers
insurance broking firms
life insurers
superannuation fund trustees,
retirement savings account (RSA) providers
stock broking firms
fund management companies.

AFCA considers complaints in relation to:

banking deposits and payments;
credit, finance and loans;
insurance;
investments and financial advice; and
superannuation.

When lodging a complaint, the following is necessary to consider:

identify the issue you want to complain about;
determine the loss, or type of loss, you have experienced;
provide copies of relevant documents which support your claim; and
if you are experiencing financial hardship, prepare and lodge a Statement of Financial Position.
decide what sort of outcome you want to achieve.

After lodging a complaint AFCA will then determine the approach proposed to resolve the complaint. This may involve the following:
AFCA providing a preliminary assessment verbally or in writing. A preliminary assessment includes:

an overview of the facts of the complaint
the issues raised in the complaint and our preliminary assessment of those issues
how we think the complaint should be resolved and why
when the parties must tell us whether they are willing to settle the complaint in line with our preliminary assessment.

If the parties cannot come to an agreement to resolve the issue and AFCA makes a decision some of the remedies AFCA can award have financial values and others not. Below are examples of possible remedies:

the payment of a sum of money
the forgiveness or variation of a debt
the release of security for debt
the repayment, waiver or variation of a fee or other amount paid to, or owing to, the financial firm or to its representative or agent including the variation in the applicable interest rate on a loan
the reinstatement, variation, rectification or setting aside of a contract
the meeting of a claim under an insurance policy by, for example, repairing, reinstating or replacing items of property
in the case of a complaint involving a privacy issue with an individual – that the financial firm should not repeat conduct on the basis that it constitutes an interference with the privacy of an individual or that the financial firm should correct, add to or delete information pertaining to the complainant
in relation to a default judgment, not enforcing the default judgment
in relation to privacy-related complaints, to make an order that is generally consistent with the declarations available to the Information Commissioner when they make a decision under section 52 of the Privacy Act
an apology.

Monetary limits for general complaints
Note: This text is reproduced, based or adapted from AFCA’s Operational Guidelines, with the source below:

(Source: Australian Financial Complaints Authority (2018). Operational Guidelines, ‘Monetary limits for general complaints’ p198. Retrieved from the AFCA guidelines website here)
When AFCA makes a decision, it is binding on the financial firms if the complainant accepts it. In the case you do not need legal representation to lodge a complaint with AFCA, however you can be legally represented if you choose at your cost.
How can FC Lawyers help with Australian Financial Complaints Authority (AFCA)?

giving you advice about your rights,
assist you in submitting your complaint ensuring that all your issues are identified and supported,
provide support and advice in negotiating a resolution with the other side
advising as to the outcome of AFCA’s decision
advising on any later legal proceedings against a financial institution.

Our team have assisted clients through the Australian Financial Complaints Authority complaint process. If you have an enquiry about a financial complaint, please contact our team at FC Lawyers.
The post Australian Financial Complaints Authority (AFCA) – What is it? appeared first on FC Lawyers.

( By Timothy – Flickr: Lake Annand 2, CC BY 2.0, https://commons.wikimedia.org/w/index.php?curid=12650243)
On 6 September 2019 in the Supreme Court of Queensland, under the direction of Justice Applegarth, a jury found that Nine Network Australia & Ors (“Nine”) defamed Toowoomba’s Wagner brothers in a 60 Minutes report on 24 May 2015 about the Grantham floods in 2011. The report insinuated, incorrectly, that the brothers were responsible for a man-made disaster (catastrophic flood) which ultimately lead to the destruction of Grantham and the death of 12 people.
The imputations and defamatory meanings conveyed that the Wagners:

“sought to conceal the truth from becoming known about the role their quarry played in causing the catastrophic flood that devastated the town of Grantham”; and
“disgracefully refused to answer to the public for their failure to take steps that they should have taken to prevent a quarry wall on property they owned from collapsing and causing the catastrophic flood that devastated the town of Grantham”.

The evidence that the imputations are false were uncontested, and in fact, no substantive defence was presented. In a report handed down by a Commission of Inquiry to the allegations found that the quarry did not materially contribute to the damage caused in Grantham or near the quarry. In light of this, the Commissioner stated that the Wagners had been “unjustly blamed by some people” and “viciously blamed by some elements of the media, and they should not have been.”
Since 1 January 2001, uniform defamation laws have made it possible for a plaintiff to use an apology as an admission of liability, however it is not admissible as evidence of liability (section 19 of the Defamation Act 2005 (Qld)). It was therefore possible for Nine to apologise and still have their day in court to convince a jury that the meanings conveyed by the imputations were not in fact conveyed. Despite the findings, Nine maintained that the imputations were true and refused to correct, retract, or apologise for their poor reporting.
Fast forward to 22 November 2019, what was a case of poor journalism and a group of bemoaned individuals looking for someone to blame, has become a costly exercise for the network, and more particularly for Mr Nicholas Cater, the culprit journalist. Justice Applegarth ordered damages for each of the four (4) plaintiffs (Wagner & Ors) against the first to fifth defendants (Nine Network Australia and its associated entities) in the amount of $663,000.00 (inclusive of interest), and $331,500.00 against Mr Cater, the total payout approximately $3.6m.
His honour went on to explain that the main issue was Nine’s “unjustifiable conduct in publishing such a defamatory imputation in the first place”, without a proper basis for broadcasting the imputations. Nine’s reckless indifference to the truth or falsity of the imputations, and failure to put those allegations to the Wagners demonstrates their indifference or lack of remorse.
In relation to Mr Cater’s conduct, his honour was “conscious that malice in the making of a defamatory statement may be inferred by conduct, including malicious conduct, which occurs before or after the publication”. The Wagners relied on the fact that Mr Cater had materials available to him, which suggested that the wave of water did not start with the quarry. Mr Cater disregarded this evidence and further provided no evidence for his beliefs and the basis for them other than “he plainly believed” that he had all the evidence he required to support his case. His honour found that Mr Cater’s conduct in failure to make any inquiries of the Wagners and unexplained disregard for evidence provided to him warranted an award of aggravated compensatory damages.
It is important to note that damages for an indefensible defamation are “substitutive for the right to a reputation infringed and are awarded even where no loss consequent upon the libel is proven” (Robert Stevens, Torts and Rights (Oxford University Press, 2007) at 59). Compensation is not awarded for a damaged reputation, but rather an injury in reputation as a result of being publicly defamed (Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150). It is simply a method of vindication of the plaintiff to the public.
The decision of Justice Applegarth in Wagner & Ors v Nine Network Australia & Ors should operate to deter anyone from engaging in the same or similar conduct, particularly those in the journalism industry.
False accusations – what to do next?
If you feel that you have been defamed or someone is alleging that you have defamed them, our legal team will help you through what can be a very difficult and complex area.
If you would like anymore information on false accusations, defamation or any other legal issues, please contact our team today.
The post Costly false accusations – Wagner & Ors v Nine Network Australia & Ors appeared first on FC Lawyers.

Why would my land be resumed?
With the many major infrastructure projects (such as construction of new roads and busways) currently being undertaken across Queensland, many landowners are having part, or all of their property resumed/acquired by an authority to make way for the infrastructure. This process is known as Compulsory Acquisition.
Compulsory acquisition occurs where a constructing authority (such as a local Council, the State Government or a public utility provider) seeks to resume all or part of the property under the Acquisition of Land Act 1967 (Qld).
Am I entitled to compensation?
If you are the landowner on the date the resumption notice is published by the Government or other relevant authority, you will be entitled to claim compensation.
In fact, anyone with an interest in the property (such a lessee or a licensee) may also be entitled to claim compensation.
How much compensation am I entitled to?
When assessing the amount of compensation payable, there are 2 major factors:

the “value of the land” resumed; and
“disturbance costs” you have incurred because of the resumption.

What if I do not want the land to be resumed?
Property can be ‘compulsorily acquired’ by a constructing authority with or without the agreement of a landowner.
If the property is to be acquired with the agreement of a landowner, it is essential that the landowner understands their legal rights and is able to negotiate a fair and just outcome so that the compensation received adequately reflects the loss of part or all of their property.
If the property is to be acquired without the agreement of the landowner, it is essential that the landowner understands their legal rights and is be able to take the steps necessary in the circumstances to protect and enforce their rights.
Strict time limits do apply and a failure by a landowner to take appropriate steps within the strict time frames required may result in a loss of their rights or have a significantly detrimental effect on their position.
Is there an entitlement to legal fees?
To enable landowners to be properly advised of their rights, the relevant laws and policies permit, in certain circumstances, landowners to claim their legal costs over and above the value of the property resumed.
Legal fees are generally included as part of the “disturbance costs”.
How can FC Lawyers assist with Compulsory Acquisition?
Our team is experienced in acting for landowners in compulsory acquisition matters and can provide legal advice tailored to your specific needs and circumstances. Contact our team today to discuss your legal requirements regarding compuslory acquisition.
The post What are your legal rights when your land or property is being resumed through Compulsory Acquisition? appeared first on FC Lawyers.

What are your options should you find yourself in a dispute with:

your landlord or body corporate over the conditions of your office suite or real property; or
a customer or contractor about the meaning and implications of ambiguous terms in a contract; or
a business partner over distribution efforts and rewards; or
a former employee who has filed an unfair dismissal application against you for wrongful termination; or
your insurance company in relation to a claim.

Do you go to court or do you attempt to resolve the matter in a way which saves time and minimises costs? The answer is: it depends on the circumstances and nature of your dispute.
At times, the only appropriate measure is to resolve a matter via the courts (litigate) – for example, criminal matters (fraud, financial crimes, forgery etc.) must go to court. However commercial disputes, being civil in nature, can be resolved through Alternative Dispute Resolution (ADR) mechanisms such as arbitration, mediation or both.
What is Arbitration?
Arbitration clauses are becoming more prevalent in commercial contracts, and you may be surprised to learn that you have agreed to be bound this method. Arbitration is similar to that of a courtroom trial; however it is outside the normal judicial process and are generally kept private (as opposed to litigation which is within the public domain). Parties to a dispute present evidence and arguments before an arbitrator, or panel of arbitrators, who then consider the case and render a binding decision. Although the rules of evidence are more relaxed and legal briefs are not always necessary, legal representation is strongly recommended given the decisive/binding nature of the process.
Arbitration is less expensive than litigation, but not necessarily inexpensive, and the outcome may not be as ‘controllable’ as the process might suggest. The process may also be subject to delays due to scheduling conflicts with other cases, rendering the arbitrator unavailable, or a party’s inability to gather evidence in a timely manner.
When should you consider arbitration?
Arbitration is appropriate where:

the circumstances are indicative of a win-lose situation;
parties agree to be bound by the arbitrator’s decision;
parties do not require the State’s intervention to enforce the decision; and
parties are not attempting to set legal precedent.

At the end of the day, one party wins and the other loses.
What is Mediation?
Unlike arbitration, mediation does not involve a third party to make a final binding decision. Mediators are appointed to facilitate an environment where the parties mutually agree on a resolution. Mediators do not make any decisions with respect to the parties’ obligations or actions but will present any proposals from either party to the other and suggest likely outcomes. Often mediators will talk to each party in confidence and exchange only such information or proposals as allowed by the relative parties.
Mediation is less expensive than arbitration or litigation, albeit that there is generally a need for legal counsel due to the nature of disputes. Delays are minimal as the process usually continues until the dispute is settled or a stalemate. If parties are unsuccessful at mediation, other options such as arbitration and litigation are still available. Generally, courts are a last resort.
When should you consider mediation?
Mediation is appropriate where:

parties intend to continue working together for the survival of their respective businesses;
parties do not fully understand the other party’s position;
parties want to resolve matters in an affordable and amicable way.

Where arbitration has a definite winner and loser, mediation allows both parties to walk away with something.
What is Litigation?
In short, litigation resolve matters via the courts before a judge or jury. The type of court is determined by the type of dispute. For further information about Queensland Courts and Tribunals, visit their website here.
Commercial disputes are often dealt with by the following Queensland Courts/Tribunals:

Magistrates Court ($150,000.00 or less);
District Court (between $150,000.00 and $750,000.00);
Supreme Court (greater than $750,000.00);
Queensland Civil and Administrative Appeals Tribunal; and
Queensland Industrial Relations Commission.

Matters under federal jurisdiction are usually dealt with by the Australian Administrative Tribunal (AAT) or the Federal Court of Australia (FCA).
Unlike arbitration and mediation, litigation is conducted in a public court room and can be a lengthy process. The expediency of resolving a dispute is dependent on the relevant Court/Tribunal’s availability to hear the case. It may take weeks, months or years.
Litigation is also a costly exercise, which involves court fees, solicitors’ fees, barristers’ fees (if required) in addition to any costs already spent on negotiation or mediation, and you may be subject of a costs order, whereby the Court orders you to pay the other side’s reasonable legal costs.
When should you consider litigation?
Litigation should be considered as a last resort, and is appropriate where:

parties have been unsuccessful at mediation;
the defendant or respondent to a dispute has been uncooperative or non-responsive to attempts to resolve the matter by negotiation or mediation; or
a question of fact needs to be tried (where strongly contested) before a judge or jury.

Like arbitration, there is a winner and a loser. However, the ramifications of either outcomes are significant given the associated costs.
If you are involved in a dispute or have concerns with respect to your legal rights under an agreement and you are not sure how to approach your situation, please do not hesitate to contact me.
The post Commercial Disputes – Arbitration, Mediation or Litigation? appeared first on FC Lawyers.

From 1 January 2020 charities and not-for-profits structured as public companies (including companies limited by guarantee) and large proprietary companies must have a whistleblower policy unless they have an annual consolidated revenue of less than $1 million.
There is an obligation to make the policy available to all employees and office holders of the company. Failure to do so is an offence pursuant to Section 1317AI of the Corporations Act 2001 and penalties will be enforced by the Australian Securities and Investments Commission (ASIC).
All corporations will need to comply with the new whistleblower regime and develop procedures to educate their employees and office holders regarding their rights and obligations in the context of whistleblower protected disclosures.
What must the whistleblower policy include?
The policy must include information about:

the disclosures that qualify for protection;
the protections available to whistleblowers;
how and to whom a disclosure may be made;
how the company will support whistleblowers, protect them from victimisation and ensure fair treatment of employees who are mentioned in disclosures;
how the policy is to be made available to the company’s employees and officers; and
how the company will investigate disclosures.

The identity of the person making the protected disclosure must be kept confidential, and the person will have certain protections from prosecution or victimisation arising from the disclosure.
We strongly recommend that all charities and not-for-profits which are companies should either review their current policies or ensure that the new policy is in place well before 1 January 2020.
The penalties for companies are the higher of 50,000 penalty units (approximately $10.5 million), three times the benefit derived, or detriment avoided, or 10% of the company’s annual turnover (capped at $525 million). For individuals it is 5,000 penalty units (approximately $1.05 million), or three times the benefit derived, or detriment avoided.
ASIC will be putting out whistleblower regulatory guidelines and further information can be found on their website here.
The Australian Charities and Not-for-profits Commission (ACNC) also has a range of information in relation to this topic.
What should you do now?
At FC Lawyers, we act for a range of charities and not-for-profits and our team can assist in advising and drafting the policies and explaining the implications to boards to ensure compliance.
Contact our team today to discuss your whistleblower policy, or if you have any other legal issues regarding charities or not-for-profit organisations.
The post Is a charity or not-for-profit organisation required to have a Whistleblower policy? appeared first on FC Lawyers.

Most people know that contracts can be anything from a formal written agreement to a verbal promise, or a combination of both. They may also be familiar with the phrase “you are only as good as your word”. People often make handshake-deals with close friends or family due to the trust fostered within those relationships over many years. Unfortunately, friends or family can become enemies within the blink of an eye when money is at stake, and their word adopts the characteristics of a broken relationship. Since December 2018, verbal agreements have once again come under the spotlight when one of Australia’s most successful pop-artist, Guy Sebastian, and manager of 12-years, Titus Day, issued claims and counter-claims against each other over unpaid commissions.
Sebastian is suing Day and his management firm 6 Degrees for alleged breaches of contract for more than $200,000.00, inclusive of performance fees and proceeds/dividends from a sunscreen deal (Solar D) which he promoted. In response, Day is counter-suing Sebastian for alleged unpaid commission for work relating to Sebastian’s 2015 Eurovision performance, music videos and performances on The X Factor and creation of The Sebastian Foundation to name a few. Current reports suggest that neither party put the agreements/work subject of the disputes in writing, and solely relied upon the strength of their long-standing relationship. Mr Day described the work done by 6 Degrees as “personal favours”.
More recently, further discovery of the facts reveals what once may have been an understanding of the agreements between Sebastian and Day, are now completely at odds with either party’s recollection of events. It may be that Sebastian or Day possesses emails or text messages which support any verbal agreements between them and could be relied upon as evidence should the matter fail to settle prior to a hearing. More will be revealed as the matter unfolds.
Situations like this, particularly where “big money” is at stake, should act as red flag to those who still rely purely on handshakes and relationships to bring about fruition of a deal. Although a verbal promise accompanied by a handshake is deemed a valid contract enforceable by a court, they more often than not lead to uncertainty about each party’s rights and/or obligations. Without a written document setting out those rights/obligations, the job of convincing a court about what the parties agreed to become increasingly difficult, especially if the parties themselves can’t agree to what they promised to do.
Why a written contract?
Written contracts are essential where the contract price is large enough to make or break a business if a party fails to perform. A written contract acts as proof of what is agreed between the parties and can prevent any misunderstanding or disputes with respect to their rights and/or obligations. It may also set out how those rights and/or obligations can be varied or terminated prior to completion of the contract.
It is important for anyone, irrespective of how small the job or who the agreement is with (family or friends), to put an agreement in writing if a failure to perform by the other party could significantly impact their lives. This does not mean that you must put in writing a verbal agreement for your friend to pay you back for the expensive dinner you paid for because they “conveniently” forgot their wallet. Seek legal advice before entering an agreement which could cause significant damage to you or your business, should the other party fail to uphold their side of the agreement.
If you are entering into negotiations with another person or business, or simply seeking legal advice with respect to your rights and/or obligations under a contract, please do not hesitate to contact me.
The post How good is your word – Sebastian v Day appeared first on FC Lawyers.

In the midst of economic downturns or poor financial performance, employers are often faced with the difficult decision to restructure their business, or streamline/automate some of their processes to remain competitive. Sometimes employers are left with no other option but to make some of their hard-working employees redundant. However, employers should be wary of their obligations with respect to making an employee genuinely redundant, particularly with respect to consultations. Failing to follow the proper process may open employers to unfair dismissal claims.
The Law of Genuine Redundancy
Under section 389 of the Fair Work Act 2009 (the Act), the crucial elements of a “genuine redundancy” are:

The employer no longer requires the employee’s job to be done by anyone because of changes in the operational requirements of the employer’s enterprise; and
The employer has complied with any obligation in a modern award or enterprise agreement that applied to employment to consult about the redundancy; and
The employer has taken reasonable steps to redeploy the employee within its enterprise or an associated entity.

The first and third elements are usually determined at the time which an employer made the decision to make an employee redundant, otherwise a redundancy is unnecessary. The second element places an onus on the employer to have ongoing and meaningful discussions with their employees about how any internal restructuring may affect them, including the possibility of termination.  However, the obligation of consulting with an employee only applies in circumstances where an employee’s employment is subject to a modern award or enterprise agreement, and such an instrument addresses the employee’s rights with respect to consultation and/or dispute resolution.
Does a modern award or enterprise agreement apply?
An easy pitfall for employers arises where an employee’s employment contract does not explicitly state that the contract is subject to any modern award or enterprise agreement and, as such, the employer has no obligations with respect to consulting about redundancies. Employers are reminded that pursuant to sections 47 and 52 of the Act, a modern award or enterprise agreement applies to an employee if it:

covers the employee;
is in operation; and
no other provision of the Act provides, or has the effect, that the modern award or enterprise agreement does not apply to the employee.

For example, a receptionist’s employment contract might not stipulate whether a modern award applies, however they may fall within one of the classifications under the Clerks – Private Sector Award 2010, which contains provisions with respect to consultations and/or dispute resolution.
Importance of consulting
If an employer is obligated to consult under a modern award or enterprise agreement and fails to do so, there cannot be a genuine redundancy (UES (Int’l) Pty Ltd v Harvey [2012] FWAFB 5241).
A consultation must be meaningful and provide an opportunity to the employee to influence the employer’s decision before any irreversible decision to terminate has been made (Steele v Ennesty Energy Pty Ltd T/A Ennesty Energy [2012] FWA 4917).
Irrespective of the burden consultations might bear on employers, they can be valuable in enabling points of view to be put forward by both the employer and employee (Sinfield v London Transport Executive [1970] Ch 558). The right to be consulted is one which should be implemented by providing an opportunity for those who have the right to be heard before the employer’s mind becomes unduly fixed.
The ultimate purpose of consultations is to facilitate change where it is necessary in the most humane way possible, providing an interchange between employer and employee which may benefit both parties.
This is a reminder to employers to consult their employees during a period of internal restructuring before rushing to terminate employees on the basis of redundancy.
If you are an employer who needs to make some tough decisions with respect to redundancies, or you are an employee who believes they have been made redundant unfairly, please do not hesitate to contact me.
The post Genuine Redundancy – A reminder to consult appeared first on FC Lawyers.

Business owners put a lot of hard work and effort into building their business. It is important to protect your commercial information and intellectual property.
What do you do when an employee leaves to work for a competitor?
Firstly, it is very important to have a well drafted employment agreement in place which contains strong restraint of trade clauses in place which gives you protection against employees or ex-employees exploiting your business.
Often this will include what is commonly referred to as a cascading restraint clause which provides a reducing time and/or geographical area.
The employment agreement will clearly bring to the attention of the employee their obligations pursuant to the restraint clause.
What is a restraint clause?
Basically, there are two types of restraint clauses:

non-competition clauses, which prevent ex-employees from working with direct competitors for a specific period or distance after their employment ceases; or
non-solicitation clauses, which prevent ex-employees from soliciting clients and current staff from your business.

What do you do when an employee leaves your employment and breaches their restraint of trade clause?

You can send the ex-employee and/or the new employer a letter outlining and reminding them of their obligations;
Require the ex-employee to sign an undertaking to stop breaching the restraint of trade clause and maintain confidentiality;
If the above does not stop the behaviour, then you can seek an injunction through the courts and/or damages suffered to your business

Many businesses will have the employee sign an exit deed when they leave to reinforce the restraint of trade clause ad that you will enforce the obligations against them if necessary. There is no obligation on an employee to sign an exit deed but when done it can be a powerful tool.
It is important to remember restraint of trade clauses are complex and can be costly to enforce through the courts. Therefore a well-drafted clause in the employment agreements is essential.
At FC Lawyers we have acted for businesses in a large range of industries to secure their employment agreements are drafted correctly including the very important restraint of trade clauses.
Contact our team of business and commercial lawyers today to discuss your employment law needs.
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