As a workplace lawyer, January can be a busy time assisting employers manage issues that arose from their office Christmas parties.
Here are some tips to avoid a lingering Christmas party hangover at your workplace!
It’s the end of the year and staff are keen to let off steam at the office Christmas party. The venue has been selected and Santa organised, but have you taken steps to minimise your risks should something go wrong?
There are many court decisions dealing with claims arising from end of year office celebrations where employers have been found vicariously liable for the actions of an employee. From work health and safety, workers compensation, sexual harassment, discrimination and bullying claims, employers can be exposed to serious damages.
If the out of hours conduct is found to have a relevant connection to the employment relationship, employers can be held liable for out of office conduct. For example, in Vegara v Ewin [2014] FCAFC 100, the actions of a sub-contractor sexually harassing an employee at a hotel across the road from the office and on the street outside the office were found to have occurred at the “workplace”.
There is an expectation that employers take appropriate steps to manage the risks associated with an office party. In McDaid v Future Engineering and Communication Pty Ltd [2016] FWC 343 despite finding that McDaid had not been unfairly dismissed for inappropriate behaviour at an office Christmas party, the employer was found to have a responsibility to take steps to ensure that alcohol was served responsibly at a staff event.
Similarly, in Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156, it was considered contradictory and self-defeating for an employer to require compliance with its usual standards of behaviour whilst allowing unlimited service of free alcohol at a function.
So before Ted from accounts decides it’s time to let his hair down, copy the Full Monty dance routine and make his move on Mary from marketing, consider taking the following steps to avoid post party blues:

ensure it is made clear that attendance is voluntary;
make your expectations clear with employees – remind them that employer policies and procedures continue to apply and set clear expectations for behaviour (an all-staff email can be useful evidence of this reminder);
set clear expectations about the use of social media and whether staff are permitted to take and post photos from the party;
make it clear that the use of illegal drugs and excessive consumption of alcohol is prohibited;
ensure that staff have access to relevant policies and procedures and understand the consequences if they breach them;
consider the venue – is it safe and appropriate for staff who have been drinking? (boats and water/beach parties are probably best avoided!);
assess the risks involved and take reasonable steps to minimise the risks identified – consider controlling the amount of alcohol consumed by issuing drink vouchers so staff are limited in the number of free alcoholic beverages they can consume;
ensure that there is plenty of food and it is served early so staff are not drinking on an empty stomach;
have plenty of non-alcoholic beverages available;
task several senior staff members with responsibility to set a good example and monitor the welfare of staff during the function, and have an action plan in place to manage any concerns;
make the start and end times of the function clear;
arrange appropriate transportation home after the function ends; and
review your relevant insurance policies and confirm that the proposed function is covered.

In the event of an issue arising from the office Christmas party, ensure it is managed appropriately and in accordance with relevant policies and procedures. Should enquiries reveal inappropriate conduct by staff at the party you should seek advice before deciding on appropriate action. The line between what is work-related, what is not and what is unreasonable behaviour in all circumstances, can be difficult to identify.
If you would like more information or to seek advice, please phone us on 1300 068 736.
This publication has been carefully prepared, but it has been written in general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.
The post Beware the Office Christmas Party appeared first on Murdoch Lawyers.

It can often be confusing for employers to determine when and if an employee has an entitlement to long service leave.
Despite robust argument by the State of Queensland, a recent decision of the Industrial Court of Queensland in Schipp & Anor v The Starr Entertainment Qld Limited [2019] ICQ 9 has confirmed that an employee whose employment was terminated by reason of medical incapacity a few works short of having served ten years of continuous service was not entitled to pro rata payment of long service leave.
This case demonstrates the uncertainty and confusion that can arise in determining an employee’s entitlement to long service leave.
To assist employers identify when long service leave may be payable a summary of the relevant status in Queensland is set out below:
General entitlement
Employees who have a long period of service in Queensland are usually entitled to long service leave. Even casual and part time employees may be entitled to long service leave if they meet the qualifying period for long service leave entitlement.
The Industrial Relations Act 2016 Qld (Industrial Relations Act) sets out the minimum long service leave entitlements in Queensland. These may be increased under an industrial instrument or contract of employment.
Section 95 of the Industrial Relations Act states that employees, other than seasonal employees*, are entitled to long service leave on full pay of 8.6667 weeks if the employee has completed 10 years continuous service. After 10 years of continuous service if the employee has completed at least a further 5 years continuous service, they are entitled to a proportionate payment of the 8.6667 weeks based on the proportion that the employees further period of continuous service bears to 10 years
Proportionate payment on termination
An employee is entitled to a proportionate payment of long service leave on the termination of the employee’s service before the employee has completed 10 years of continuous service if:

The employee terminates the service because of their illness or incapacity or a domestic or other pressing necessity; or
The termination is because the employer dismissed the employee for a reason other than the employee’s capacity, conduct or performance or unfairly dismissed the employee or the termination is because the passing of time and the employee had a reasonable expectation that their employment would continue until the employee had completed at least 10 years of continuous service and the employee was prepared to continue the employment with the employer.

Continuous service and continuity of service
The term continuous service generally means paid work time or leave.
A period of unpaid leave may not break the continuity of service but would generally not count as service. For example, an employee’s continuity of service is not generally broken:

during a period of unpaid parental leave;
during a period of approved leave granted by the employer (paid or unpaid); or
where the employee is terminated and then re-employed by the same employer within three months

Rate of payment
Long service leave is paid at the ordinary rate being paid to the employee at the time they take the leave. Leave loading is not payable on long service leave
Cashing out of long service leave
There is capacity under s 110 of the Industrial Relations Act for an employee to be paid out all, or part, of an entitlement to long service leave instead of taking the leave if:

The relevant industrial instrument provides for the employee to be paid for all or part of the entitlement; and
the employer and employee agree by a signed agreement that the payment may be made; and
the payment is made in accordance with the industrial instrument.

If the industrial instrument does not make provision for the cashing out of long service leave then payment can only be made if ordered by the Queensland Industrial Relations Commission upon application by the employee on compassionate grounds or on the grounds of financial hardship.
*The entitlement of seasonal employees is provided for in Subdivision 7, Chapter 2- Modern employment conditions in the Industrial Relations Act.
The post When Is Long Service Leave Payable Upon Termination Of Employment? appeared first on Murdoch Lawyers.

End of life preparation can be a difficult topic for many people, but it is an essential process to ensure that your wishes and the wishes of your loved ones are known and protected. When making these arrangements, it’s important to factor that at some stage in the future you may lose the capacity to make sound decisions about particular areas of your life. This inability may be temporary (for example, if you are in a coma following an accident) or permanent (for example, if you have suffered a stroke, with a prognosis that you will never regain capacity). As these circumstances can’t be predicted, every person should include as part of their estate planning legal documents instructing who is permitted to make decisions on their behalf should they lose capacity to so.
Why is this important?
There are two common misconceptions we frequently come across regarding the above, these are:

if I ever lose capacity the Executor of my Will can act on my behalf; and
if I ever lose capacity the my spouse will automatically be able to act on my behalf;

when in actual fact:

the instructions outlined in a Will only come into effect upon your death. Naming a person/s as Executor in your Will does not give them authority to act on your behalf whilst you are still alive, even if you no longer have capacity; and
your spouse can only act informally in certain situations. In particular, they will be unable to make significant financial decisions on your behalf unless a formal appointment has been made.

If you have not included incapacity as part of your Estate Plan, then state legislation dictates who will make personal/health and financial decisions on your behalf.

For health matters, this will be your statutory health attorney; and
for financial decisions (such as accessing your bank account to pay bills, or to sell your home), a spouse, family member or friend will need to apply to the Queensland Civil and Administrative Tribunal (‘QCAT’) for formal appointment as your Financial Administrator.

If an application is made with QCAT they will assess it and determine whether it is suitable for the applicant to be appointed as your Financial Administrator, or if there is a more suitable option (which may include appointing the Public Trustee to act on your behalf, for a scale fee). Similarly, QCAT may also make a determination as to who should be appointed as your guardian where relevant (which may include appointing the Adult Guardian).
What can I do to prevent this and ensure my wishes are clearly defined?
By preparing an Enduring Power of Attorney you can choose who you want to make decisions on your behalf if you were to unexpectedly lose capacity. This document provides your Attorney/s with the legal authority they require to act on your behalf, avoiding the need for them to apply to QCAT as your Guardian or Financial Administrator (which can be a 6 month process).
Your Enduring Power of Attorney ensures you can:

specify who is to act on your behalf (this may be one person or multiple people);
outline whether financial decisions and personal/health decisions are to be made by the same person, or separate people;
nominate substitute Attorneys if your initial Attorney is unable to act;
for financial matters, specify when the power is to begin (for example, are your attorneys to act immediately, or only if you lose capacity); and
limit your Attorney’s power, if you wish to do so.

What if a loved one has already lost capacity and they don’t have an Enduring Power of Attorney in place?
Once you have lost capacity it is too late to prepare an Enduring Power of Attorney as you need to be considered ‘sound of mind’ to prepare and finalise one.  The test as to whether a person has capacity to execute an Enduring Power of Attorney has strict parameters, with the level of capacity required to set up an Enduring Power of Attorney actually being higher than the level of capacity required to prepare a Will.
Unfortunately, once a loved one no longer has capacity, the only option available to family members who need to make major decisions on behalf of that person is to make an application to QCAT as a Guardian and/or Financial Administrator.
Where to from here?
An Enduring Power of Attorney is a crucial component of any Estate Plan. Incapacity can strike at any stage of life and an appropriately drafted Enduring Power of Attorney will decrease the stress, inconvenience, delays and uncertainty during a very stressful time, both for yourself and your loved ones.
Contact us today on 074616 9898 for additional information or to discuss which estate planning package would best suit you and your family.
The post Capacity Issues in Estate Planning: Enduring Powers of Attorney appeared first on Murdoch Lawyers.

It is not unusual these days for people to acquire assets in different countries (or Australian states) or with the ease of modern travel for them to live, work or die in differing countries (or states).
In such circumstances, on a person’s death, the administrator of their estate may be faced with numerous questions and issues to address, such as:

Which law actually applies?
If there is a Will in place, does it cover assets in all locations or just one?
Do I need a Grant of Administration in a foreign country or inter-state?
If so how do I practically obtain it and where should I apply in first?
Do I need to do the ground work or can I appoint an attorney in the foreign country or inter-state?
Are there forced inheritance rules in a foreign country that I need to consider?

As a starting point, consideration needs to be given to where the deceased was actually domiciled and what is the nature of the assets they owned. For example, are you dealing with an “immoveable” asset such as real property or a “moveable” asset such as personal effects or cash?
As a Grant of Administration is only effective within the jurisdiction in which it is granted, in some circumstances multiple Grants will be required (that is one in Queensland and one in another country or state).
Depending on the particular country or state that you are dealing with it may be possible to obtain what is called a “reseal” of an original Grant, rather than make a fresh application in the second location.
Of course, it is useful for a person to contemplate such issues in advance if possible by ensuring their Will is professionally drafted to address assets in multiple jurisdictions and provide clarity to those left behind administering their estate after their death.
Our Future Planning team are experienced in:

drafting Wills that deal with assets in multiple countries;
estate administration dealing with multiple jurisdictions;
obtaining Reseals of foreign or inter-state Grants in Queensland; and
obtaining assistance through our network from lawyers in foreign countries.

If you need assistance with managing an international or inter-state estate, call our expert team today on 07 4616 9898.
The post Dealing with International or Inter-State Estates appeared first on Murdoch Lawyers.

One of the most difficult scenarios an employer can be faced with is how to manage an employee with a non-work related medical condition.
With a minefield of legal pitfalls to navigate, Murdoch’s Senior Associate, Suzanne Wishart, provides some guidance.
Generally, if an employee is absent from work on sick leave for more than two days they are required to provide their employer with a medical certificate (this can vary depending on the applicable industrial instrument). However, medical practitioners usually provide little information on the medical certificate which can make it very difficult for an employer to manage the absence and any return to work.
Employers have an obligation under work health and safety legislation to take all reasonably practicable steps to provide a safe workplace. Further, under anti-discrimination legislation an employee can be required to make reasonable adjustments to accommodate an employee’s medical condition.
However, in order to assess the risk, identify ways to manage the risk and consider reasonable adjustments to accommodate the condition an employer needs to have information about the condition and its impact on the employee’s work capacity.
If an employee is absent on sick leave for an extended period of time an employer is generally entitled to seek further information about the nature of the employee’s illness/ injury and its expected duration to the extent that it is relevant to the employee’s work capacity and management of their return to work.
An employer should seek the written consent of the employee to liaise with and obtain information about their condition from their treating medical practitioners, keep this information confidential and discuss the information obtained with the employee.
Where the medical condition is prolonged and/or complex it may be necessary for an employer to arrange for an independent medical examination to be conducted and a report obtained with respect to the employee’s work capacity.
Under s 352 of the Fair Work Act 2009 an employee who is temporarily absent from work due to illness or injury may be protected from being dismissed if they are absent for less than 3 months or a total of less than 3 months over a 12 month period, they are on paid personal/carers leave and have provided evidence of their illness/injury.
If the absence extends beyond three months an employer is not entitled to automatically dismiss an employee. Steps should be taken to obtain information on whether the medical condition is temporary or permanent, when the employee is likely to be able to return to work, whether the employee will be able to perform the inherent requirements of their position, the safety implications of the condition and whether any adjustments need to be made for the condition.
An employer then needs to consider all of the information obtained, discuss this with the employee and determine:

if a return to work can safely occur;
the nature and extent of any adjustments required and if they are reasonable;
if the inherent duties of the position can be performed; and
the likely timeframes.

What is a reasonable adjustment has a particular legal meaning. An adjustment is considered reasonable unless it would impose unjustifiable hardship. What is unjustifiable hardship depends on all of the relevant circumstances including the nature of the benefit accrued and detriment suffered by the relevant persons, the effect of the condition on the person concerned, the financial circumstances and expected expenditure required and the availability of financial or other assistance.
A decision can then be made to return the employee to their usual position or a modified role, allow the employee further time to recover or terminate the employment on the basis the employee is unable to perform the inherent requirements of their role (even with reasonable adjustment) due to the condition and it is a permanent or long term condition.
An employer is not generally required to offer an incapacitated employee an alternative role on a permanent basis.
If a decision is made to terminate the employment care must be exercised to comply with the relevant requirements to dismiss an employee including giving adequate notice, advising the employee of the proposed decision, giving them access to the medical evidence gathered, ensuring the employee is offered a support person, giving the employee the opportunity to respond, carefully considering any response and ensuring the decision is not in breach of anti-discrimination, workers compensation or other applicable law.
It is important to understand that this can be a stressful time for an employee. Employers should ensure they provide reasonable support to employees and their dealings are reasonable, within the law, in accordance with any relevant policies/procedures and are conducted in a reasonable way.
If the condition is work related an employer’s obligations vary greatly and there are specific rules regarding termination due to the condition, the use of medical information and responsibilities to assist with rehabilitation and return to work.
The post Managing Employees with a Medical Condition appeared first on Murdoch Lawyers.

Work health and safety is one, of several areas, where a director is exposed to significant fines and lengthy terms of imprisonment.
The office of director is a powerful office and carries great responsibilities, irrespective of the size of the company / corporate trustee or the scale of its business.
It is essential all directors understand their duties and responsibilities so they can appropriately comply with the law and manage their personal exposure to fines and imprisonment.
Due diligence duty
An officer (including a director) has a duty to exercise due diligence to ensure that the person conducting the business or undertaking (PCBU) complies with that duty or obligation – section 27 Work Health and Safety Act 2011 (Qld).
Due diligence requires an officer to take reasonable steps to:

acquire and keep up to date knowledge of work health and safety matters

obtain up-to-date knowledge of the Work Health & Safety Act 2011, its regulations and any applicable codes of practice;
obtain up-to-date knowledge of work health and safety management principles and practices;
identify current issues in your industry through conferences, seminars, information and awareness sessions, industry groups and newsletters;
ensure work health and safety matters are discussed at the appropriate company meetings.

gain an understanding of the nature of the operations of the business or undertaking of the PCBU and generally of the hazards and risks associated with those operations

develop a plan to identify hazards in core activities of the company;
ensure information is available to other officers and workers relating to the procedures designed to ensure the safety of specific operations that pose health and safety risks;
continuously review and improve the safety management system.

ensure that the PCBU has available for use, and uses, appropriate resources and processes to eliminate or minimize risks to health and safety from work carried out as part of the conduct of the business or undertaking

implement a safety management system;
establish and maintaining safe methods of work;
recruit personnel with the appropriate skills for the tasks they will be required to perform;
ensure staffing levels are adequate for safety in the company’s operations;
ensure procedures are in place which allow employees to access decision makers for urgent issues;
ensure all infrastructure, plant and equipment is maintained and upgraded as necessary.

ensure the PCBU has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information

implement a risk management process;
employ efficient, timely reporting systems;
ensure procedures are in place for employees to cease unsafe work and request further resources to mitigate or eliminate the risk;
ensure procedures are in place to consider and respond to information about incidents, hazards and risks in a timely manner;
continuously review existing procedures against performance indicators to identify any deficiencies.

ensure that the PCBU has, and implements, processes for complying with any duty or obligation of the PCBU under the Act

undertake a legal compliance audit of policies, procedures and practices;
test policies, procedures and practices to verify compliance with safety management planning.

verify the provision and use of the resources and processes mentioned in above in paragraphs 1 to 5

ensure systems are in place which record and provide evidence of the criteria listed in paragraphs 1 to 5.

Work health and safety is a legal issue. To protect its directors, a company should engage its lawyers to help its directors comply with its due diligence duties and improve safety matters for everyone concerned.
Consequence of an officer failing to comply with its due diligence duty
An officer who fails to comply with their duty, is exposed to:

a fine; or
a period of imprisonment.

The penalties vary depending on whether there is an element of reckless conduct, the establishment of a WH&S duty, a failure to comply that duty and the seriousness of the exposure to risk.
There are three categories of offences under the Work Health and Safety Act 2011 (Qld).

Category 1 – Reckless conduct

Type of offence
Who
Penalty Units ($100)
Fine
Term of imprisonment

WH&S duty, exposure to a risk of death or serious injury or illness and reckless conduct
Individual (other than an PCBU or Officer/Director)
3,000
$300,000
5 years

Individual PCBU (ie sole trader of a business);
Officer / director
6,000
$600,000
5 years

Company
30,000
$3,000,000

 

Category 2 – Failure to comply with a duty exposing individual to risk of death or serious injury / illness

Type of offence
Who
Penalty Units
Fine
Term of imprisonment

WH&S duty, failure to comply with duty, exposure to a risk of death or serious injury or illness
Individual (other than an PCBU or Officer/Director)
1,500
$150,000

Individual PCBU (ie sole trader of a business);
Officer / director
3,000
$300,000

Company
15,000
$1,500,000

 

Category 3 – Failure to comply with a duty

Type of offence
Who
Penalty Units
Fine
Term of imprisonment

WH&S duty, failure to comply with duty, exposure to a risk of death or serious injury or illness
Individual (other than an PCBU or Officer/Director)
500
$50,000

Individual PCBU (ie sole trader of a business);
Officer / director
1,000
$100,000

Company
5,000
500,000

Industrial Manslaughter
Work health and safety laws are still State and Territory based laws.  While there has been an attempt to harmonize them in Australia, the harmonization is yet to fully roll out.
Queensland has largely adopted the proposed harmonized laws in the Work Health and Safety Act 2011 (Qld).
On 23 October 2017, Queensland introduced industrial manslaughter as an office into the Work Health and Safety Act 2011 (Qld).  Industrial manslaughter is a crime.
The offence was introduced in response to the recommendations of the Best Practice Review of Workplace Health and Safety Queensland, which was commissioned following high profile incidents in Queensland, including:

Eagle Farm incident where 2 workers were crushed to death by a concrete slab; and
Dreamworld incident where 4 people died when a ride overturned.

Industrial manslaughter – PCBU’s exposure
A PCBU commits the offence of industrial manslaughter if:

a worker:

dies in the course of carrying out work for the business or undertaking; or
is injured in the course of carrying out work for the PCBU and later dies;

the PCBU’s conduct causes the death of the worker; and
the PCBU is negligent about casing the death of the worker by the conduct.

Person
Max penalty
Fine

Individual (sole trader)
20 years imprisonment

Company / corporate trustee of a trust
100,000 penalty units
$10,000,000

Industrial manslaughter – Individual exposure
A senior officer of a PCBU means:

where the PCBU is a company or a corporate trustee of a trust – an executive officer; or
otherwise – the holder of an executive position (irrespective of how the position is described) in relation to the person who makes, or takes part in making, decisions affective all, or a substantial part, of the person’s functions.

An executive officer means a person who is concerned with, or takes part in, the corporation’s management, whether or not the person is a director or the person’s position is given the name of executive officer.
A senior officer of a PCBU commits an offence if:

a worker:

dies in the course of carrying out work for the business or undertaking; or
is injured in the course of carrying out work for the business or undertaking and later dies; and

the senior officer’s conduct causes the death of the worker; and
the senior officer is negligent about cause the death of the worker by the conduct (which can be an act or an omission.

A senior officer (including a director) who commits this offence is exposed to a maximum penalty or 20 years imprisonment.
This offence is a crime.
WH&S prosecution
With a work health and safety prosecution an employer and the individuals involved can expect to be questioned by a WH&S inspector.
Workers also have duties under the Work Health and Safety Act 2011 (Qld) and can be charged if they fail to comply with their duties.  While at work, a worker must:

take reasonable care for his or her own health and safety;
take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons;
comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the PCBU to allow the person to comply with the Work Health and Safety Act 2011 (Qld); and
cooperate with any reasonable policy or procedure of the PCBU relating to health or safety at the workplace that has been notified to workers.

While there may be a tendency might to want to cooperate and speak freely with an investigator, the information volunteered can be used against the individual, unless the individual takes steps to compel the investigator to exercise its coercive powers.
If there is a safety incident, the PCBU is required to notify WH&S.  If an ambulance is called to the scene, the ambulance officer is likely to also notify WH&S.
A PCBU should immediately contact their lawyer to better understand its rights and responsibilities.
Generally speaking there are three ways, a prosecution can be responded to:

defend the prosecution – if the employer has a reasonable defence;
enter an early guilty plea – if the employer does not have a reasonable defence; or
enter into an enforceable undertaking – this will generally require the employer to spend approximately three times the expected fine and any money spent on improving safety matters before the undertaking is entered into will not form part of the undertaking.

Workers compensation
If there is a work health and safety incident involving an employee, it is likely to also result in a workers compensation claim.
If WorkCover Queensland accepts the claim, WorkCover will appoint one of its panel lawyers. From the time WorkCover accepts the claim, the PCBU loses control of the matter.
Workers compensation insurance covers a statutory claim and a common law claim, if it proceeds to a common law claim.
It is vitally important that all employers take out and maintain suitable workers compensation insurance.
If the injured worker is an independent contractor, it is vitally important that the PCBU has adequate public liability insurance.
Where multiple parties are involved in a safety incident, there will usually be an allocation of risk. Typically, proportionate liability will be shared by those causing or contributing to the relevant claim.
The post Directors Exposure to Fines and Imprisonment – Work Health and Safety Matters appeared first on Murdoch Lawyers.

A recent decision of the Fair Work Commission has highlighted the risks employers face when dismissing an employee. In Paech v Hage Retail Group [2019] FWC 6487, the Commission found that Paech had been unfairly dismissed from his employment based on alleged conduct.
Paech was employed by Hage Retail as baker. After a period of absence following a workplace injury, Peach had returned to employment with Hage Retail with flexibility to vary his start and finish times. Paech would note any amendments on the roster sheet and initial to indicate the hours he had worked.
In early 2017 the employer took issue with the accuracy of a timesheet entry and issued Peach with a ‘written final warning’. Subsequently, in April 2019, the employer took further issue with timesheet entries and dismissed Paech without notice.
There was a dispute over the conduct which had led to the written warning being issued in 2017 and the subsequent conduct in April 2019 which led to his dismissal.
In May 2019, the employer had contacted Peach with respect to the alleged conduct which led to his dismissal wanting to arrange a meeting to discuss the matter. However, Paech indicated he would not be available for two days but could meet the next day as he was looking after his sick children. A representative of the employer telephoned Paech before the meeting and advised him he had been dismissed.
The Commission found that Peach was afforded the ability to vary his shift times provided the work was done. There was no suggestion that the requisite work had not been completed. Whilst it was determined that Peach had not correctly stated the hours he worked one day in February 2017 the Commission accepted that he left early due to concerns about working alone.
The Commission accepted the timesheet records in April 2019 were incorrect but the overall total hours matched those claimed as Paech had not taken the full lunch break.
The Commission found that a managers view that Paech’s workers compensation claim had been fraudulent was a factor in deciding to dismiss him but this was never put to Paech and Paech was not given the opportunity to respond to concerns about the timesheet entries in April 2019.
It was noted that where a dismissal related to an employee’s conduct the Commission must be satisfied the conduct occurred and that it justified dismissal. Whilst it was accepted there were inaccuracies in the subject timesheets, the Commission was satisfied that hours claimed had been worked and that Paech had not sought to defraud his employer.
The Commission stated that whilst Peach should have paid more attention to the accuracy of his timesheets there was a level of flexibility in his start and finish times and the taking of breaks. Accordingly, it was found there was not a valid reason for the dismissal.
It was determined that Paech had not been made aware of the employers concern about his conduct and was not given an opportunity to respond. Nor had he been given the opportunity to respond before the decision was made to terminate his employment.
Whilst the employer was entitled to sanction Paech for the timesheet inaccuracies it was determined his conduct did not support a decision to dismiss.
What you need to know about unfair dismissal claims:

Employees have 21 days after the dismissal takes effect to apply to the Fair Work Commission
Employees must have been employed for at least 6 months before they can bring a claim (12 months for small business)
A small business (with fewer than 15 employees) is protected from unfair dismissal claims if they follow the Small Business Fair Dismissal Code
To be unfair a dismissal must be harsh, unjust or unreasonable
In considering whether a dismissal was harsh unjust or unreasonable the Commission must consider:

–whether there was a valid reason for the dismissal
-whether the person was notified of that reason
-whether the employee was given an opportunity to respond to any reason regarding their capacity or conduct
Any unreasonable refusal by the employer to allow the person to have a support person present at discussions regarding the reasons for the dismissal
If the dismissal relates to unsatisfactory performance, whether the employee had been warned before the dismissal
The degree to which the size of the employer would be likely to impact on procedures followed in effecting the dismissal
The degree to which the absence of any dedicated HR management specialists or expertise in the business would be likely to impact on procedures followed in effecting the dismissal
Any other matters the Commission considers relevant.

If you are considering terminating an employee we recommend you obtain advice before making the decision. The risks are high and some expert assistance can avoid the pitfalls of an unfair dismissal claim.
The post Unfair Dismissal Claims – The Risks When Terminating An Employee appeared first on Murdoch Lawyers.

Under Queensland legislation the Court may authorise the payment of commission to an Executor.
The Court decides on the amount to be awarded based on “the pains and trouble” incurred by the Executor in the administration of the estate. “Pains” recognises the responsibility and anxiety to which an Executor is put in the administration. “Trouble” is used to assess the work which is actually attended to by the Executor.
Some of the matters which are taken into consideration by the Court when looking at the amount of commission which is appropriate include:

The size of the estate;
The care and responsibilities involved;
The time occupied in performing the duties;
The skill and responsibility displayed by the Executor; and
Whether the administration of the estate has been successful.

Although the Court’s approach is to form an overall assessment of what remuneration is just and reasonable in all the circumstances, the application of a percentage is then helpful in forming a view as to the amount to award. Generally, commission is assessed in terms of a percentage of the capital and income of the estate. Given the level of discretion involved, the reported cases show quite a range of percentages depending on the circumstances of each matter. However, as a rule of thumb, commission on capital of 2% and on income of 3% is appropriate in many cases.
In our experience Court applications claiming an Executor’s commission are rare. It is more usual for one of the following options to be adopted:

An Executor may agree not to be paid for their work. This is common where a family member is acting as Executor, particularly where they are also a beneficiary under the Will.
The will maker could leave a gift to the Executor under the Will. If an Executor is left a gift under the Will, this does not prevent the Executor from bringing a claim for commission. However, if the gift is worded so as to be “in lieu of commission”, the Executor generally will not be entitled to claim anything more than that gift. Care should be taken to ensure that the gift is adequate compensation as the appointed Executor could renounce their position or disclaim the benefit and apply for commission if the gift was not considered adequate.
Strictly, for an Executor to be able to claim commission from the estate, the payment must be authorised by the Court. However, if all residuary beneficiaries (those entitled to the balance of the estate) are over 18 and able to consent, payment could be authorised by their unanimous approval. Given the substantial costs of making an application to the Court, it is in the interests of all parties to try and work out an agreement as to an appropriate level of commission to be paid to the Executor.
Where a will maker proposes to appoint a solicitor as their Executor, consideration should be given to the fees and commission the Executor is entitled to claim. The solicitor is entitled to charge their usual professional fees for the work done by him or her or the firm of which they are a member. It is common practice for the Will to include a charging clause making it clear to the will maker that the Solicitor has the right to charge professional fees for acting in the role. The solicitor is also entitled to bring a claim for commission, although the professional fees paid would be taken into account.

If none of the above options are appropriate in the circumstances, an Executor is entitled to apply to the Court for the payment of commission and it will generally be allowed, with the commission and associated costs of the application to be paid from estate funds. This possibility and the above options should be carefully considered at the time of making a Will.
The post What is Executor’s Commission & When can it be Claimed? appeared first on Murdoch Lawyers.

In this podcast, Murdoch Lawyers’ Agnes Redulla from our Litigation and Insolvency team discusses an issue which is, unfortunately, becoming increasingly more common, and that issue is “undue influence” in the making of a Will.
TRANSCRIPT
What is undue influence with respect to a Will?
Undue influence occurs when the person making their last Will is pressured or coerced into making that Will, or giving a gift under that Will, that does not accurately reflect that person’s independent free wishes. Commonly, the person subjected to the undue influence will be vulnerable to coercion, and may be ill, elderly, or dependant on the person seeking to exert the undue influence over them.
Why and how does undue influence occur?
Undue influence usually occurs because there is an imbalance of power between the person making the Will, and the person coercing him or her to make the Will, or give gifts under the Will, contrary to the Will maker’s own wishes. A common scenario for undue influence is that of an elderly parent, who relies on an adult child for assistance. The adult child may pressure the parent, by indicating that the assistance provided will be withdrawn, unless the parent leaves more to the adult child under the Will than what the parent would otherwise intend.
What should you do if you believe that undue influence occurred in the making of someone’s Will?
If you believe that someone’s Will, or a gift given under that Will, may have been procured through undue influence, then specialist legal advice should be obtained as soon as possible. You should also keep very detailed records of everything that has occurred in case that information is needed as evidence in any future Court proceeding in respect to the Will.
Your lawyer will be able to advise you on your prospects of contesting the Will because of alleged undue influence. A Court must ultimately be satisfied that the Will in question does not reflect the true wishes of the deceased, and that can be difficult to prove given that most times the person who made the Will has passed away before the Will comes to light, and so is not available to give evidence as to what actually occurred in the making of the Will, and what their true wishes were.
If there has been undue influence, what happens to the Will?
An allegation of undue influence is a serious matter which, if proven, will invalidate the entire Will. If a Court finds an entire Will is invalid as a result of undue influence, then if the deceased made an earlier, valid, Will, then that Will may apply. If there is no earlier, valid, Will, then the Rules of Intestacy will apply to the deceased’s Estate.
Is this something Murdoch Lawyers can help with?
It certainly is. The Litigation team at Murdoch Lawyers is experienced in dealing with all types of deceased estate and Will disputes, including undue influence. If you, or someone you know, need advice on a possible undue influence on a Will-maker, then please call us on 07 4616 9898 and we will be able to assist you.
The post Contesting a Will on the basis of Undue Influence appeared first on Murdoch Lawyers.

In the past, Water Licences (as opposed to Water Allocations) have attached to land and could only be transferred with the land they were attached to. Water Licences were not separate assets in their own right and could not be transferred or traded independently of land.
Over the past few years however, a number of Water Management Plans have been introduced or amended to allow for the permanent relocation of a Water Licence (or part of its entitlement) to other land. At the time of writing, the Barron, Condamine and Balonne, Cooper Creek, Great Artesian Basin, Gulf and Wet Tropics Water Plans allow for the relocation of Water Licences.
This means that Water Licence Licensees in these Water Plan areas can:

relocate the Water Licence to other land they own in the same water area; or
sell the Water Licence to another land owner in the same water area.

In order to relocate the Water Licence, the Licensee must:

obtain the written consent of each interested entity that has a financial or other interest in the land the Water Licence is being transferred from (e.g. Mortgagees, Tenants);
make an application to the Department of Natural Resources, Mines and Energy (“the Department”) for the relocation; and
if the Department approves the Application, accept its offer within the set timeframe.

When the Department receives an Application, it must assess it against the protocol and water sharing rules of the relevant water management area and undertake an impact assessment to determine how the relocation may affect the underground water source. This process is aimed at ensuring that the relocation of the Water Licence won’t adversely impact on the water security of other existing entitlements in the area or the environment.
The ability for a Water Licence Licensee to relocate a Water Licence has meant that market for the sale of Water Licences has now opened up.
It is however important to ensure that both Buyers and Sellers fully understand the requirements and timeframes for any proposed relocation and that the Contract of Sale adequately addresses these issues and protects their interests in that regard.
Murdoch Lawyers has assisted a number of clients in both selling and buying Water Licences under the relocation process and we invite you to contact our Property Law Team if your require assistance in that regard.
This publication has been carefully prepared, but it has been written in general terms and should be viewed as a broad guidance only.  It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.
The post What You Need to Know About Water Licence Trading appeared first on Murdoch Lawyers.

The Australian Government has now amended the Family Law Act 1975 (Cth) to include restrictions on perpetrators of family violence, directly cross-examining their victims in family law proceedings. These amendments commenced on 10 September 2019.
What is cross-examination?
Cross-examination occurs at a final trial/hearing for a matter, which allows each party to question witnesses (under oath or affirmation) as to the evidence they have put before the Court, in an attempt to identify flaws, shortcomings and weaknesses in their evidence. There are very specific rules that apply when conducting cross-examination to prevent improper or misleading questions.
Given that the very nature of cross-examination is to challenge the evidence of a witness, it can be very confronting and stressful to be the person cross-examined. In family law proceedings and domestic violence proceedings a large portion of the evidence to consider at a final trial comes from the parties themselves and as a result they are required to be cross-examined at a final trial/hearing.
Ideally, cross-examination would be conducted by a Barrister which would avoid the situation where a perpetrator is given the opportunity to directly ask their victim questions. However, in many cases, parties are not able to afford legal representation and choose to self-represent. If a party chooses to represent themselves at a final trial/hearing they are tasked with conducting their own cross-examination.
The primary concern and risk here is that the perpetrator may use this opportunity to continue to engage in family violence through a legitimate and necessary court process. Additionally, where the victim of family violence is self-represented, they will be required to directly cross-examine the perpetrator, which understandably can be very daunting and potentially place them in a position of being subject to further family violence.
The amendments to the Act now place a ban on self-represented parties from cross-examining the other in family law proceedings, where the issue of family violence is present, however the ban will only occur in certain circumstances.
When does the ban apply?
If each party is legally represented the ban will not apply as cross-examination will be conducted by their legal representative.
However, should either party to the proceeding be self-represented, the ban will apply automatically in any of the following circumstances:

If either party to the proceedings has been convicted of, or is charged with, an offence, involving violence, or a threat of violence, to the other party;
If there is a Final Protection Order in place protecting one of the parties from the other (this does not include Temporary Protection Orders); or
If the Court has ordered a personal protection injunction for the protection of one of the parties from the other.

If any of the above circumstances apply, then the ban will automatically be in place regardless of whether the person who is self-represented, is the victim or perpetrator of family violence.
If the above does not apply and allegations of family violence have been raised during the course of the proceedings then the Court, of its own initiative or upon application from a party, is able to implement the ban after considering the matter.
What to do if the ban applies?
If the ban applies (either automatically or as decided by the Court), then each party MUST engage legal representatives for the trial.
The options in this regard are as follows:

Privately engage a legal representative; or
Apply for Legal Aid.
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In conjunction with the amendment of the Family Law Act, the Australian Government, has committed extra funding through the Commonwealth Family Violence and Cross-examination of Parties Scheme. This funding is provided to Legal Aid Commissions in each state, to allow them to assist parties where the ban has been applied.
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There are certain conditions that will apply to accessing this funding, so we would recommend that you contact Legal Aid Queensland for more information, if you are considering this option.

What to do if the ban DOES NOT apply?
If the ban does not apply either automatically or as decided by the Court at their discretion, then the self-represented party can proceed to cross-examine the other.
However, if an allegation of family violence between the parties has been made during the course of the proceedings, then the Court must ensure that there are appropriate protections in place during cross-examination. This may include cross-examination being conducted via video or telephone link, so that the alleged victim does not have to be in the physical presence of the alleged perpetrator, having a support person present, or closing the Court room to the public.
In addition to this, the Court will naturally have regard to the specific rules in place as to cross-examination to prevent improper or misleading questions.
Comparisons to domestic violence proceedings (Queensland)
Given the changes to the Family Law Act 1975 (Cth), it is also appropriate to address protections provided to victims during the course of domestic violence proceedings, to obtain Protection Orders as similar difficulties will also be present. There are a number of similarities between the protections now offered in family law proceedings and in domestic violence proceedings in Queensland. The key difference between the two, is the implementation of an automatic ban of cross-examination.
In domestic violence proceedings in Queensland, the Court firstly needs to identify if the alleged victim is a protected witness. This is likely to be the case, given that the definition of a protected witness includes the ‘aggrieved’ (being the alleged victim as we have been referring to them in this article). If this is the case, then the Court may seek to either:

Impose certain conditions on how cross-examination is to occur (whether or not the respondent or alleged perpetrator is self-represented or not).
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This can include their evidence being given via video or telephone link, having a support person present or any other arrangement that the Court considers appropriate in the circumstances. These provisions are similar to the changes being introduced to family law proceedings.
Prevent a self-represented party from directly cross-examining the self-represented respondent.
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The Court will make an Order, preventing a self-represented respondent from cross-examining the alleged victim if, the Court considers that it likely to cause the alleged victim to:

Suffer emotional harm or distress; or
be so intimidated as to be disadvantaged as a witness.

If the Court decides that it is not safe for the self-represented respondent to directly cross-examine the alleged victim, then the only option available to the self-represented respondent is to obtain legal representation, otherwise cross-examine will not take place.
This means that is that there is no automatic ban that is put in place, in domestic violence proceedings in Queensland, by virtue any previous Orders regarding domestic or family violence being made, any personal protection injunctions made during the course of family law proceedings, or any prior convictions or current charges against the respondent/alleged perpetrator of an offence involving violence to the alleged victim.
The Court, in domestic violence proceedings in Queensland, will consider the facts and circumstances of each case and make Orders they consider appropriate to ensure the safety of the alleged victims whilst balancing the parties fundamental right to due process and natural justice.
If you are likely to be impacted or allegations of domestic and family violence are present it is important that specialised advice is sought. Our experienced Family Law teams in Brisbane and Toowoomba are readily able to assist you with these queries so please contact us today.
The post Changes to Cross-Examination in Family Law Proceedings appeared first on Murdoch Lawyers.

Difference of opinion
Unfortunately, “casual employee” is not a term defined in the legislation. Its meaning comes from the case law, which is continually evolving.
Currently, there is also a significant discrepancy between:

the definitions of “casual employees” in the Modern Awards which are not always consistent, for example:

under Clerks Private Sector Award – “a casual employee is an employee engaged as such”;
under Building and Construction General On-site Award – “a casual employee is one engaged and paid in accordance with the provisions of this clause”; and

the case law.

General notions of casual employment
A casual employee:

has no guaranteed hours of work;
usually works irregular hours as needed;
is not entitled to paid leave;
is not entitled to notice on termination or redundancy pay.

In exchange, casual employees are entitled to:

an additional loading, usually 25%, on top of their usual hourly rate. This is called ‘casual loading’ and is paid in compensation of the benefits a casual employee does not receive;
2 days unpaid carer’s leave and 2 days unpaid compassionate leave per occasion;
up to 5 days unpaid family and domestic violence leave (in a 12-month period);
unpaid community service leave;
end their employment without giving notice;
protection from unfair dismissal, where the employee is a long term casual.

Comparison to full time and part time
Full-time employees are those who work at least 38 ordinary hours per week on average, whereas part time employees work less than 38 ordinary hours per week, but still have regular and predictable work hours.
Full-time and part-time employees both have ongoing employment (unless they are on a fixed-term contract) and can expect to work regular hours each week. They are entitled to paid leave, redundancy pay and notice on termination.
Relevant case law
In the decision of Telum Civil (Qld) Pty Ltd v CFMEU, the Full Bench of the Fair Work Commission determined that, where an employer engaged a casual employee under an award or enterprise agreement, then, if the engagement is consistent with the terms of the relevant industrial instrument, the relationship can be treated as casual.
Most awards and enterprise agreements simply describe a casual as an employee ‘paid and/or engaged as such’. Accordingly, the Fair Work Commission held that, provided an employee was referred to as a casual and paid a casual loading, they could legitimately be considered casual – notwithstanding their actual pattern of work.
However, a recent decision of the Full Court of the Federal Court of Australia, WorkPac Pty Ltd v Skene [2018] FCAFC 131 (Skene) has overturned this conventional wisdom.
In that case the Federal Court held that an employee who had been categorised as a ‘casual’ by the employer, WorkPac, was not in fact a casual but rather a permanent employee and, as a result, entitled to the paid annual leave associated with such employment on his termination.
The decision overturns the understanding that an employee who is ‘paid and/or engaged’ as a casual pursuant to an industrial instrument (that is, the employment agreement engages them as a ‘casual’ and the employer pays them the casual loading) can be treated as a casual employee even in circumstances where the pattern of days and hours worked by the employee might, applying common law principles, suggest otherwise.
In Skene the Federal Court rejected the approach in Telum and had regard to the broader common law tests of casual employment to determine whether an employee was in fact a ‘casual’ for the purpose of the applicable industrial instrument.
In doing this, the Federal Court placed particular significance on casual employees not having a ‘firm advance commitment’ from the employer for continuing and indefinite work according to an agreed pattern.
The Federal Court developed this further at paragraph 173:
The indicia of casual employment referred to in the authorities – irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability – are the usual manifestations of an absence of a firm advance commitment of the kind just discussed.  An irregular pattern of work may not always be apparent but will not necessarily mean that the underlying cause of the usual features of casual employment, what Hamzy identified as the ‘essence of casualness’, will be absent.
It was held that the payment of casual loading might reflect the intention of the parties but is not determinative. In this regard the Federal Court observed at paragraph 182:
The payment by the employer and the acceptance by the employee of a casual loading, like the description of the type of employment given by the parties in their contractual documentation, speaks to the intent of the parties to create and continue a casual employment.  But the objective assessment will need to consider whether that intent has been put into practice and if achieved, has been maintained.  The objectively demonstrated existence of a firm advance commitment to continuing and indefinite work (subject to rights of termination) according to an agreed pattern of work will ordinarily demonstrate a contrary intent and the existence of on-going full-time or part-time employment rather than casual employment.  The key indicators of an absence of the requisite firm advance commitment will be irregularity, uncertainty, unpredictability, intermittency and discontinuity in the pattern of work of the employee in question.  Those features will commonly reflect the fact that, whilst employed, the availability of work for the employee is short-term and not-ongoing and that the employer’s need for further work to be performed by the employee in the future is not reasonably predictable.
The Full Court held that the determination of whether an employee is a casual must be conducted by assessing ‘the real substance, practical reality and true nature of the relationship’ as opposed to adopting the description the parties have given to the relationship.
The Full Court endorsed the notion that, in order for an engagement to be considered casual:

there should be no certainty about the period over which the employment is offered; and
there should be an informality, uncertainty and irregularity about the engagement.

So, if an employment relationship has a level of certainty, regularity and predictability about the hours to be worked, then it is inconsistent with being a casual engagement.
Applying this analysis to the facts led the Federal Court to find that Mr Skene was not a casual employee and therefore WorkPac was liable to pay both compensation for its failure to meet entitlements to annual leave and penalties in respect of that failure.
We understand a number of multimillion dollar class actions have been launched against labour hire firms who failed to pay leave entitlements on termination of casual employees employment.
Long-term casual employees
A ‘long-term casual employee’ who is employed on a ‘regular and systematic basis’ may have access to entitlements and protections not afforded to other types of casual employees.
Long-term casuals are casual employees who have been employed by the employer on a ‘regular and systematic’ basis. The term ‘regular and systematic’ is the key term in defining casual employment relationships.
Evidence of regular and systematic employment might include a clear pattern or roster for the hours/days worked. Even where there is no pattern/roster, evidence of regular and systematic employment may be established where:

the employer regularly offers work when suitable work is available at times when the employee has generally made themselves available; and
work is offered and accepted sufficiently often that it is no longer occasional or irregular.

Employers of long-term casuals should be aware that these employees can:

request flexible working arrangements;
take unpaid parental leave;
access the same unfair dismissal rights as permanent employees;
request to convert to full time or part time employment in certain circumstances.

However, they don’t get paid leave or notice of termination; even if they work regularly for a long time.
From a risk perspective, a casual employee working under a regular and systematic basis may claim their casual status was misclassified and they were treated as part-time or full-time employees, therefore having access to the same annual leave, personal leave and redundancy entitlements of full-time or part-time employees.
Under some Modern Awards, there is also an obligation for the employer to advise casual employees who have been working for 6 months on a regular and systematic basis that they can elect to convert to full-time or part-time employment.
Converting to full-time or part-time employment
Casual conversion provides casual workers with the option to request that their employment be converted to full-time or part-time employment after completing a minimum period of service and subject to certain restrictions.
As casual conversion rights have been absent from many businesses and industries for some time, the concept of casual conversion may be foreign to some employers. In fact of the 122 modern awards only 28 previously contained a casual conversion clause. However, from 1 October 2018, casual conversion rights and obligations will affect the majority of award covered employers across Australia.
The FWC’s decision to introduce casual conversion clauses comes after a number of employer and union bodies petitioned the FWC to introduce a casual conversion clause into all modern awards as part of the FWC’s 4 yearly review of modern awards in 2017. The full bench of the FWC ultimately held that the inclusion of casual conversion clauses in modern awards is necessary in order to meet modern award objectives. Specifically the FWC accepted the proposition, put forward by the Australian Council of Trade Unions, that unrestricted use of casual employment without the safeguard of a casual conversion clause may operate to undermine the fairness and relevance of the safety net of modern awards and national employment standards.
The Commission found:
There is no constraint on the employer choosing to engage as casuals persons who equally might readily be engaged as permanent full-time or part-time employees under the terms of the modern award.  The lack of any such constraint creates the potential to render the NES irrelevant to a significant proportion of the workforce.
While the FWC noted higher casual rates are designed to compensate employees for entitlements such as annual leave and personal leave, they fail to account for the negative impacts long-term casual employment can have on workers. These include workers continuing to work while sick due to concerns that absences will affect future employment, poorer health and safety outcomes and a limited career path.
Although the FWC found the majority of employers did not exploit their ability to engage casual staff where the NES entitlements did not apply; some employers did appear to employ individuals as casual workers indefinitely despite the employees seeking, or at the very least being interested in, a permanent position.
Can employers refuse an employee’s request to convert to full time employment?
An employer may refuse a casual employee’s written request to convert to permanent employment after consulting with the employee and provided the refusal is on reasonable grounds. Reasonable grounds may include:

the conversion would require significant adjustment to the casual employee’s hours of work to accommodate them in full-time or part-time employment under the applicable modern award;
it is known or reasonably foreseeable that the casual employee’s position will cease to exist within the next 12 months;
it is known or reasonably foreseeable that the employee’s hours of work will be significantly reduced within the next 12 months; or
it is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.

The model clause requires employers to consult with employee’s regarding its decision to refuse a request for conversion.  Where the employer refuses a regular casual employee’s request to convert, the employer must provide the casual employee with the employer’s reasons for refusal in writing within 21 days of the request being made.
If an employee does not agree with an employer’s refusal they may have recourse to the dispute resolution provisions of the applicable modern award and to the adverse action provisions of the FW Act.
Key take away
As a general rule, you can determine whether a staff member should be classified as a casual employee by looking at their pattern of work. A casual position is usually one that has irregular hours of work. Remember that even when a position is initially genuinely casual, these roles often become more set and regular, and so it is important to review employee classifications regularly.
If you employ casual employees, it is essential to review how you engage them. If your casual staff have regular and systematic work arrangements, you may need to back pay leave entitlements.
Ask yourself:

how far in advance your casuals receive a roster?
do your casuals work in predictable, regular patterns?
is there a commitment to specific hours and days?

Also, if you think your casuals could actually be considered to be permanent staff, consider converting their employment to full-time or part-time employees.
Finally, review your employment contracts to ensure that you clearly identify casual loadings in monetary terms. This could help avoid double dipping.
Conclusion
Casual employment can work well for both employers and employees. For employers, having flexibility around payroll costs is arguably the number one attraction of hiring a casual. Employees are often happy to trade off certain entitlements such as annual and personal leave in return for the higher base rate of pay of a casual and the opportunity to work around family responsibilities, study or other work.
Notwithstanding such benefits, smart employers manage the risks around a long-term casual employee in the same manner they manage other risks: by seeking expert advice tailored to their business. That is where we can help. We identify your business risk and growth factors and work with you to manage both.
The post Complexities of Casual Employment appeared first on Murdoch Lawyers.

It is important to note from the outset that a directorship is an office, not necessarily a position of employment, but it can be both depending on the circumstances.
Applying the ‘multi-factor’ test
A good indication an employment relationship exists is where a person is engaged under a contract of service and not a contract for services (see Lincoln Mills (Aust) Ltd v Gough [1964] VR 193, 198). A contract of service will allow for the normal incidences of employment, such as annual leave, personal leave, set duties, hours of work and remuneration.
In the absence of a written contract, the common law ‘multi-factor’ test will be applied (see Hollis v Vabu Pty Ltd (2001) 207 CLR 21) to determine the nature of the relationship. This test involves weighing up a number of factors, including:

Method of engagement: usually an employees’ rights and duties are defined in their employment contract and/or in the relevant industrial instrument. Conversely, the rights and duties of an officeholder are set out in the Corporations Act and/or the company constitution.
Right to delegate / authority / control: an employee will not usually have the authority to delegate their duties and will have limited control over their work;
Personal risk: employees usually bear little or no personal risk in relation to the work they perform. Alternatively, directors can be held personally liable and will often be required to take out their own insurances (worker’s compensation).
Hours of work: employees will generally have set days and hours of work.
Leave entitlements: employees are entitled to annual leave, long service leave and personal leave etc., directors are not.
Payment: employees are paid a wage or salary as consideration for personal services rendered. Directors will generally receive dividends.

Relevant case law
The recent case of Jeremy Taylor v ALG provides some insight into how the Fair Work Commission applies the multi-factor test to determine whether an employment relationship exists.
In that case the FWC had to decide if two of ALG’s company directors were also employees. The question of whether the directors were employees was critical for determining if the company was a small business employer (i.e. an employer who employs fewer than 15 employees at a time, excluding true casuals).
The FWC ultimately held a contract of employment did not exist between the parties (i.e. the directors were not employees). In reaching its decision, the FWC considered the ‘true character’ of the relationship with the case turning on the following facts:

the directors were involved in high level strategic, marketing and technology matters and were responsible for hiring and firing employees;
the directors were not involved in the company’s day to day dealings;
the directors were not engaged pursuant to an employment agreement;
the directors did not have any specific roles or duties;
the directors derived income from the company through dividends as shareholders and had no entitlement to wages or superannuation; and
the directors were not covered by ALG’s workers compensation policy.

The FWC commission handed down a similar finding in the 2016 case of Wilson v B.A.R.B Trading [2016] FWC 3841. In that case, the FWC held two managing directors (as they identified themselves) were not employees. The FWC determined while the managing directors withdrew monies from the business as ‘wages’ neither of them did so as consideration for personal services rendered. They also did not receive the usual incidental benefits of employment (e.g. long service leave, superannuation, annual leave and personal leave) and notwithstanding their nominal title of ‘managing director’, the directors did not engage in the day to day operational matters of the business.
Overall, these cases demonstrate the FWC will look beyond a person’s position title and consider the totality of the relationship between the parties (Anderson v James Sutherland (Peterhead) Ltd. [1941] SC 203) in order to determine if an employment relationship exists.
Key take outs
The existence of an employment relationship is a question of fact to be determined on the particular circumstances of each case.
To avoid the risk of a dispute, employers should be careful to engage workers pursuant to written employment agreements, which clearly defines the nature of the relationship and sets out the conditions of employment.
Where the employee is a high income employee, they will also have a guarantee of annual earnings. A Modern Award does not apply to an employee at a time when the employee is a high income employee.
The post Blurring of the Lines: When is a Director also an Employee? appeared first on Murdoch Lawyers.

Murdoch Lawyers are the proud sponsors of the inaugural Darling Downs Bush Bash League. This fantastic initiative by Toowoomba Cricket Incorporated brings together six teams comprised of local cricket players of various ages from across the region.
There are six teams participating which are owned by local businesses from Toowoomba and the Lockyer Valley, including Hip Pocket Workwear, Livewired Electrical, Liebke Tyres, George Banks Rooftop Bar, Aidacare Mobility & Healthcare Equipment, Pollock Farms Pty Ltd and Lockyer Valley Toyota.
Round 1 was on Sunday 15 September 2019 with all three games taking place at the Captain Cook Ovals in Toowoomba.
The full game schedule can be found on our Events page here.
There will be plenty on offer to keep the whole family entertained with Western Districts Cricket Club – Toowoomba Inc running a bar and barbecue, plus Wilsonton Shopping Centre is just up the street as well as an assortment of food venues.
Plus, one of the games will be live streamed by Power FM Toowoomba each week!
Come join us and enjoy a sausage and a beer while watching a beloved Australian pastime and supporting your favourite team!
The post Murdoch Lawyers Proudly Sponsor the Bush Bash League appeared first on Murdoch Lawyers.

Do you need a WILL or does your current WILL need to be updated?
Do you feel your LEGACY INTENT is not clear to your family or beneficiaries?
Murdoch Lawyers and Strategic Evolution invite you to attend our next Estate Planning Kickstart Workshop on Friday 1st November 2019 at Sanctuary Cove on the beautiful Gold Coast. These half day workshops are held every 2 months and will help you and your family update and complete your Estate Plan.
Facilitated by Mark Westcott (Strategic Evolution) and Tom McVeigh (Murdoch Lawyers), this workshop will provide you with a full set of ‘fill in the blank’ activities that will clearly document your intentions, share your dreams and create consensus with all your family members.
Strategic Evolution and Murdoch Lawyers have been working together over the last 6 years helping our mutual clients create a family legacy they are proud of.
Please watch the video about our workshop here
Benefits:

Maximise your estate and fulfil your promises
Understand ‘fairness’ versus ‘equality’ for everyone
Allow yourself to speak from the heart and let all the human parts of the plan shine through for those you love
Leave invaluable direction for loved ones after you have passed—everything your family will ever need, in one folder
Principles and capabilities to keep the family together, happy and harmonious to eliminate any potential future squabbles
At the conclusion of the Workshop, you will take away a fully documented, cohesive, concise succinct but powerful, structured plan for your Estate in one folder. All the clues you can leave behind for a smooth transition of your estate
PLUS – You will have access to our NEW online ‘Peace of Mind Foundations’ site. All the tools and capabilities uncovered on the day can be stored on this platform

What Participants Say
 “I am grateful for the way in which you manage my Succession Plan. It is an area which is essential to the future welfare of my business and my family. With your professional approach, I am forced to give it the priority it deserves.” P.J. EBLEN Adelaide, SA
“My family now have comfort in knowing that if the unimaginable was to happen, they would be taken care of. Thank you once again, to Mark, and your team.” K. AMBROSE-PEARCE Darwin, NT
“There is so much more to consider, thank you Mark.” T. PERRY Townsville, QLD
“I have a really good feeling about what we are doing.” J. EASTHAM Noosa, QLD
At only $97 per family, we invite you and everyone you care about to attend this workshop and make your plans and arrangements, in one day, before lunch!
For more information or to register your interest, please contact Mark Westcott on 0418 743 888 or email [email protected].
The post Family Succession Plan Workshop appeared first on Murdoch Lawyers.

We are delighted to announce our rankings in Doyle’s Guide for 2019!
Doyle’s Guide is an independent organisation that rates and recommends law firms and individuals in the legal industry factoring in peer recognition, relevant industry bodies and client reviews.
The rankings are released throughout the year from February to November, with family law usually being the first announced. The most recently released rankings are for Wills and Estates lawyers in Queensland, with our team’s listings including:

Tom McVeigh – Preeminent Wills, Estates & Succession Planning Lawyer
Tom is one of only five lawyers listed as Preeminent and the only one outside of Brisbane, an outstanding achievement!
Leanne Matthewson – Recommended Wills, Estates & Succession Planning Lawyer
Juanita Maiden – Recommended Wills & Estates Litigation Lawyer

This brings the firm’s tally of lawyers included in Doyle’s Guide for 2019 to 8 – an impressive number for a team of 20 lawyers.  The rankings announced earlier this year include:

Tony Randall – Leading Agribusiness Lawyer
Craig Shepherd – Leading Commercial Litigation & Dispute Resolution Lawyer
John Lobban – Leading Insolvency & Restructuring Lawyer
Andrew Crooke – Leading Family Lawyer (High-Value/Complex Property & Commercial Matters) – Regional Qld
Andrew Crooke – Leading Family & Divorce Lawyer – Toowoomba, Darling Downs & Western Qld
Sarah Adams – Recommended Family & Divorce Lawyer – Toowoomba, Darling Downs & Western Qld

The firm has also received a number of mentions with these rankings achieved in 2019:

Recommended Commercial Litigation & Dispute Resolution Law Firm
Leading Agribusiness Law Firm
Leading Second Tier, Leading Wills, Estates & Succession Planning Law Firm
Recommended Leading Wills & Estates Litigation Law Firm
Leading Second Tier, Family & Divorce Lawyers – Toowoomba, Darling Downs & Western Qld

Our sincere thanks for your continued support and trust which has helped us to achieve these rankings.
The post Murdochs Recognised as Leading Lawyers in Multiple Areas of Law appeared first on Murdoch Lawyers.

The short answer is yes!  When a marriage or de facto relationship breaks down, superannuation (super) can be divided between spouse parties.
Why is super considered as part of a property settlement?
For the purposes of a family law property settlement, super is considered to be property and can be transferred between spouses funds as part of a property settlement.  One of the first steps taken in property settlements is to identify the property of both parties available for division. Naturally, this includes the parties’ current assets and liabilities, but also includes any super that they may have.
How will my super be impacted?
As you are probably aware, you cannot usually access your super until you reach retirement age. There are some other limited circumstances in which you can access your super (or part of it) earlier, but this cannot be done easily and there are certain conditions that need to be met, such as if you are assessed to be totally and permanently disabled.
In the context of a family law property settlement, super can be transferred between spouses as part of a property settlement, which has been formalised in a way that the Court recognises. This is referred to as a super split.
However, a super split to a former spouse or de-facto partner does not mean that the party receiving the benefit of a super split will receive that transfer as immediate cash. It will simply be transferred as super into their nominated fund.
An example of this is:
Ben and Anne have separated from a long marriage. Ben has $500,000 in superannuation. Anne has $100,000 in superannuation. Ben and Anne have agreed that as part of their property settlement, Anne will receive $200,000 from Ben’s superannuation. Once this has been implemented this will mean that Anne’s super will increase to $300,000. Ben’s super will decrease to $300,000. Both Ben and Anne will not be able to access their super or utilise the funds held in their super unless and until they meet the conditions to access their super, such as reaching retirement age. 
How much of my super will my former spouse/de facto partner receive?
This is a tricky question and the answer really is – it depends. Superannuation is just one aspect of property that will need to be divided between the parties, in amongst houses, companies, motor vehicles, mortgages, personal loans etc.
The Court will generally decide what percentage of the overall property pool each party should receive and from there identify which assets, liability and/or super (or part thereof) needs to be transferred (and from which party) to achieve that percentage.
We explain further on how a Court will arrive at a percentage in our article: – https://www.murdochs.com.au/family-law/property-settlements/
What needs to happen for super to be transferred?
In order for super to be divided between spouses, there a few requirements that need to be met. These steps put simply, are:

You will need to obtain a valuation of the person’s super interest you intend to divide. The method of valuing a superannuation interest, will depend on the particular superannuation scheme being considered;
You will need to document the proposed division. Super can be divided by way of an Order of the Family Law Courts (including Orders made by consent) or by way of a Superannuation Agreement.  If the division is by way of an Order or Superannuation Agreement, most people will need the assistance of a legal advisor as the wording of any Order or Agreement is generally quite complex and dependent on the type of interest being considered.  A Superannuation Agreement cannot be entered into without both parties having first received independent legal advice;
Once the proposed Order or Agreement has been drafted, a copy of the document will need to be sent to the relevant Superfund. The Superfund can require changes to the wording to ensure that the division is able to occur, pursuant to the particular rules governing the relevant fund; and
Once the Order has been approved or made by the Court, or in the case of a Superannuation Agreement signed by the parties and their legal representatives, a copy of the Order or Agreement will then need to served on the fund or the fund administrator so that the administrative process of a super division can occur.

Division of super can be quite complex and is subject to a raft of legislative requirements.   We recommend that you seek legal advice before making any decisions regarding division of superannuation and property settlement generally.
If you find yourself going through a separation and need assistance please do not hesitate to contact Murdoch Lawyers, who have an experienced and dedicated Family Law team who are ready to assist.
The post Can My Former Partner Receive Part of My Super as Part of a Family Law Property Settlement? appeared first on Murdoch Lawyers.

The short answer is yes!  When a marriage or de facto relationship breaks down, superannuation (super) can be divided between spouse parties.
Why is super considered as part of a property settlement?
For the purposes of a family law property settlement, super is considered to be property and can be transferred between spouses funds as part of a property settlement.  One of the first steps taken in property settlements is to identify the property of both parties available for division. Naturally, this includes the parties’ current assets and liabilities, but also includes any super that they may have.
How will my super be impacted?
As you are probably aware, you cannot usually access your super until you reach retirement age. There are some other limited circumstances in which you can access your super (or part of it) earlier, but this cannot be done easily and there are certain conditions that need to be met, such as if you are assessed to be totally and permanently disabled.
In the context of a family law property settlement, super can be transferred between spouses as part of a property settlement, which has been formalised in a way that the Court recognises. This is referred to as a super split.
However, a super split to a former spouse or de-facto partner does not mean that the party receiving the benefit of a super split will receive that transfer as immediate cash. It will simply be transferred as super into their nominated fund.
An example of this is:
Ben and Anne have separated from a long marriage. Ben has $500,000 in superannuation. Anne has $100,000 in superannuation. Ben and Anne have agreed that as part of their property settlement, Anne will receive $200,000 from Ben’s superannuation. Once this has been implemented this will mean that Anne’s super will increase to $300,000. Ben’s super will decrease to $300,000. Both Ben and Anne will not be able to access their super or utilise the funds held in their super unless and until they meet the conditions to access their super, such as reaching retirement age. 
How much of my super will my former spouse/de facto partner receive?
This is a tricky question and the answer really is – it depends. Superannuation is just one aspect of property that will need to be divided between the parties, in amongst houses, companies, motor vehicles, mortgages, personal loans etc.
The Court will generally decide what percentage of the overall property pool each party should receive and from there identify which assets, liability and/or super (or part thereof) needs to be transferred (and from which party) to achieve that percentage.
We explain further on how a Court will arrive at a percentage in our article: – https://www.murdochs.com.au/family-law/property-settlements/
What needs to happen for super to be transferred?
In order for super to be divided between spouses, there a few requirements that need to be met. These steps put simply, are:

You will need to obtain a valuation of the person’s super interest you intend to divide. The method of valuing a superannuation interest, will depend on the particular superannuation scheme being considered;
You will need to document the proposed division. Super can be divided by way of an Order of the Family Law Courts (including Orders made by consent) or by way of a Superannuation Agreement.  If the division is by way of an Order or Superannuation Agreement, most people will need the assistance of a legal advisor as the wording of any Order or Agreement is generally quite complex and dependent on the type of interest being considered.  A Superannuation Agreement cannot be entered into without both parties having first received independent legal advice;
Once the proposed Order or Agreement has been drafted, a copy of the document will need to be sent to the relevant Superfund. The Superfund can require changes to the wording to ensure that the division is able to occur, pursuant to the particular rules governing the relevant fund; and
Once the Order has been approved or made by the Court, or in the case of a Superannuation Agreement signed by the parties and their legal representatives, a copy of the Order or Agreement will then need to served on the fund or the fund administrator so that the administrative process of a super division can occur.

Division of super can be quite complex and is subject to a raft of legislative requirements.   We recommend that you seek legal advice before making any decisions regarding division of superannuation and property settlement generally.
If you find yourself going through a separation and need assistance please do not hesitate to contact Murdoch Lawyers, who have an experienced and dedicated Family Law team who are ready to assist.
The post Can My Former Partner Receive Part of My Super as Party of a Family Law Property Settlement? appeared first on Murdoch Lawyers.

 
Illegal phoenix activity in business is more common than it should be, and a concept which the government and regulatory bodies like ASIC have been trying to combat for several decades. A new Bill seeking to crack down in this area has been introduced into Parliament. To discuss more on this topic, John Lobban, Special Counsel for Disputes and Restructuring Law in our Litigation and Insolvency at Murdoch Lawyers.
TRANSCRIPT:
Dan:  A new bill seeking to crack down on this area has been introduced into parliament. To discuss more on this topic, I’m speaking with John Lobban, special counsel at Murdochs in the litigation and insolvency team.
Dan:   John, in the context of the corporate world, what is a Phoenix?
John:  As followers of Harry Potter will know, a phoenix is a legendary bird that’s reborn from the ashes of its former self and in the corporate context, a Phoenix is called, a Phoenix is the name given to a business that’s restarted from the ashes of a failed or a liquidated company.
Dan:   So why do businesses engage in illegal Phoenix activity?
John:  Well if a business is allowed to fail or indeed if it’s made to fail, it doesn’t pay all of its debts. It doesn’t pay outstanding wages, superannuation, taxes and so forth. In the construction space, it means suppliers and subcontractors aren’t paid.
John: Now that money that should have gone to those people remains in the pockets one way or another of the business operator, and that doesn’t only hurt unpaid creditors, but also competing businesses that do the right thing and they’re at a disadvantage.
John:   You’ll often find, Dan, that somebody that engages in this activity can undercut their competitors because they don’t have the same overheads.
John:  It doesn’t mean that a business can’t emerge from insolvency. It can be legally restructured, but the illegal activity is the stripping of the assets of the failed company without paying a full or proper value for them.
Dan:  John, what is the legislation in respect to Phoenix activity been like in the past?
John:  Certainly, the laws have existed that prohibits that sort of activity, but to enable a liquidator of a failed company to attack the transactions, the liquidator looks at what’s left in the shell and usually there’s nothing. There’s no assets, sometimes there’s not even books and records.
John:  So the liquidator asks the creditors to fund an action. They’ve already been stung once and now they’ve got to come up with money to take legal action going forward. It’s a complex procedure. You need to go to court and sometimes by the time you get a court order, the Phoenix has flown off somewhere else.
Dan:   So we know that there’s a new bill that’s been introduced into parliament relating to illegal Phoenix activity. What kind of changes will this new bill bring to the table in your view?
John:   It’s designed to help creditors who find that they’re involved with somebody engaging in this activity and it introduces a new concept called a creditor defeating disposition.
John:   Now that means that anyone responsible for that disposition, not just the company directors or shareholders, but anyone involved in it can be subject to criminal charges, fines, compensation, etc.
John:  Dan, that can happen in four ways. Firstly, a liquidator can use the laws to pursue the person who was involved in the disposition. The liquidator can also refer it to ASIC.
John:   So that brings me to the second stage. ASIC has been given the power to make administrative orders to recover property for the benefit of the liquidators and the creditors. It can do that without having to go to court and engage in expensive litigation, and it can levy charges, fines and orders for compensation.
John:   Thirdly, the creditors can pursue those responsible directly. They probably wouldn’t do that if the liquidator or ASIC was doing it.
John:  And then finally, of course, the tax office is involved and the tax office has been given the power to recover GST and other tax obligations directly from those involved in Phoenix activity. So it becomes a personal liability to pay the tax that the company has tried to avoid.
Dan:  So how can Murdoch Lawyers help?
John:  Well, if a client or prospective client can see that this sort of activity is affecting their business, they can come to us. We can advise them of their rights and how to pursue the people who’ve been involved and how to best preserve their position should a liquidation eventually occur.
Dan:   John, thanks for joining me.
John:  My pleasure. Thanks, Dan.
 
The post The Introduction of a New Bill to Crack Down on Illegal Phoenix Activity appeared first on Murdoch Lawyers.

Sadly, domestic violence is a prevalent part of our society and often it can be the case that there is confusion of what actually constitutes domestic violence.

In this podcast, Katrina Potter of Murdochs Lawyers discuses what is domestic violence and what do do if you’re experiencing it.

The post What is Domestic Violence? appeared first on Murdoch Lawyers.