Jeremy Kennedy undertook an internal investigation against senior managers in relation to alleged culture of bullying behaviour at a Boeing regional site resulting in a significant report and recommendations on requirements for cultural change and potential liabilities. All of the investigations and recommendations were actioned by the client and resulted in disciplinary proceedings being taken against senior management staff.

Need Help? Call Jeremy Now, 1300 553 343

Jeremy Kennedy acted on behalf of the Council in respect of a General Protections claim commenced by the former General Manager on his termination for breaches of the Council’s Code of Conduct and financial approvals policy. Proceedings were struck out based upon submissions to the Federal Court disclosing no proper cause of action under the Fair Work Act.

Need Help? Call Jeremy Now, 1300 553 343

Jeremy Kennedy provided advice in relation to proceedings commenced by former Work Health & Safety Manager with respect to unfair dismissal, unlawful termination when terminated following a worker’s compensation claim. Negotiations resulted in the exit of the manager with no payment of compensation or damages based upon expert medical evidence obtained.

Need Help? Call Jeremy Now, 1300 553 343

Jeremy Kennedy acted in a General Protections /Adverse Action matter commenced by an apprentice on the basis of discriminatory conduct with respect to disability and his exercise of his right to take leave. Jeremy produced a significant and detailed response to the claim, resulting in the proceedings being withdrawn / discontinued.

Need Help? Call Jeremy Now, 1300 553 343

Jeremy Kennedy acted on behalf of Newcastle Stevedores in a multi-faceted investigation by Workcover NSW, Australian Maritime Safety Authority and the Police/ Coroner in relation to a fatality occurring on board a ship whilst loading for the transport of aluminium ingots where a stevedore was fatally injured when the ingot packs collapsed in the ship’s hold. This including formulating a comprehensive enforceable undertaking in order to achieve no prosecution of the company or its directors.

Need Help? Call Jeremy Now, 1300 553 343

In a first for WHS prosecutions, on 11 June 2020, The District Court of Queensland handed down a judgement which became the first recorded conviction and sentencing under industrial manslaughter legislation in Australia.

The Case
Brisbane Auto Recycling Pty Limited was convicted and fined a record $3 million after pleading guilty to causing the death of a worker and being ‘negligent about causing the death’ contrary to Queensland’s new industrial manslaughter legislation.
Two directors of the Company were also both convicted and sentenced to 10 months imprisonment, with their sentence suspended, after being found guilty of breaches of their duty to exercise due diligence as officers and guilty of a ‘reckless conduct’ category one offence.
The convictions relate to a worker who was killed when a forklift, being driven by an unlicensed employee, reversed into the deceased and crushed him against the tilt tray of a truck being used to unload a motor vehicle body.
The Defendants
The two directors, Mr Hussani and Mr Karimi, were both immigrants who had migrated to Australia from Afghanistan, where they had been exposed to extreme violence including being abducted, kidnapped and held prisoner. These matters were taken into account in sentencing.
The Defendants did not have any WHS procedures in place and had not ensured that the driver of the forklift was qualified and licenced. The Court found that the costs of implementing appropriate risk management measures, including the installation of signage, plastic bollards and marked exclusion zones to manage traffic in the workplace was quite modest and easy to implement. The Court considered that there had been a conscious disregard for the safety of workers and that the incident did not arise from a momentary or isolated breach.
The Court also found that both individual defendants had engaged in deceptive conduct after the incident by attempting to deflect responsibility by lying about the identity of the driver and also by telling the deceased’s daughter that he had fallen from a truck.
The Penalty
The $3 million penalty handed down to the company is a record for any WHS prosecution for a single offence in Australia on one of only a hand full custodial sentences directed at individuals.
Whilst in NSW, we have found the introduction of industrial manslaughter a bridge too far, recent amendments to the Work Health and Safety Act 2011 (NSW) provide for the introduction of a new category one offence, being that of ‘gross negligence’ with maximum penalties up to $3,463,000 for companies, and $6,925,000 for individuals, together with five years gaol.
Other states and territories in Australia, however, have implemented similar industrial manslaughter legislation to that of Queensland, including Victoria, Western Australia, the Australian Capital Territory and Northern Territory.
Companies and their officers and directors are reminded that the legal risks of prosecution in serious work health and safety matters is high and that the potential penalties available are significant. They should ensure that they have proper systems and legal strategies in place for dealing with WHS issues and an appropriate legal strategy to protect their interests in the event of a serious incident.
How We Can Help
Roberts Legal is able to assist in the development of such policies and procedures and to provide training on serious incident management and dealing with regulator investigations and prosecutions.
Our WHS expert, Jeremy Kennedy, is available to provide assistance in the event of a serious incident 24/7. You can contact Jeremy via email on [email protected] or by phone on 1300 553 343.
 
By Jeremy Kennedy

The post Industrial Manslaughter – First Conviction Recorded in Australia appeared first on Roberts Legal.

Amendments to the Work Health and Safety Act 2011 (NSW) which had been before Parliament since November 2019 were finally passed by the State Legislative Council on 4 June 2020 and commenced operation on 10 June 2020.
As was anticipated in our earlier article the new laws contain significant amendments to the current Act with the State Government implementing a number of key recommendations from the Federal Senate Inquiry, ‘They never came home – the framework surrounding the prevention, investigation and prosecution of industrial deaths in Australia’, and also the independent review, ‘The review of the model Work Health and Safety Laws’– December 2018, undertaken by Marie Boland.
New Offence of Gross Negligence
Whilst falling short of introducing industrial manslaughter, in accordance with the recommendations of the above Inquiry, NSW now has a new offence of ‘gross negligence’ which sits alongside the other category one offence of ‘recklessness’.
The new offence requires a lesser fault element then the already existing offence of recklessness and will make it easier for regulators and prosecutors to commence and obtain convictions for proceedings commenced under the category one offence provisions. The maximum penalty for the new offence of gross negligence is $3,463,000 for companies, and $692,500, together with imprisonment of up to 5 years for individual company officers.
The new provisions also provide for a note to be inserted into the Act that there is an existing offence of criminal manslaughter contained in the Crimes Act 1900 (NSW), as a reminder that this already exists as an option for prosecutors. Whilst the offence under the Crimes Act contains penalties of up to 25 years imprisonment for individuals it is not applicable to corporations.
Ban on Insurance
Another significant amendment makes it illegal to have insurance and give indemnities for penalties in relation to offences for work health and safety breaches. From the date of commencement (10 June 2020) it is now illegal to offer and take out policies of insurance. A breach of the new provisions carries its own penalties of $50,000 for individuals and $250,000 for companies.
From this point on, a business cannot insure for this risk in standard Director and Officer, or Statutory Indemnity type policies and will have to meet any fines directly as either a company or personal liability.
Increase to Existing Penalties
Maximum penalties for all offences under the Act have also been increased significantly. The penalties have not been increased since the commencement of the current legislation 10 years ago.
The maximum penalties under the legislation are now $3,463,000 per offence for companies, and $692,500 for individuals, with all other penalties being increased by a similar level. The legislation also introduces a penalty unit system and provides for automatic increases to the value of the penalty unit based on CPI increases on an annual basis.
What do we Recommend?
Roberts Legal recommends that businesses, company directors and officers review their current work health and safety systems to ensure that they are compliant with the legislation and that they are prepared in the event of a serious incident. We would recommend that companies and their senior managers undertake training in officer due diligence and incident management. This training can be arranged by Roberts Legal. Click here for more information about our WHS Compliance Products & Training options.
Given the prohibition on insurance, Roberts Legal also recommends that all businesses review their insurance program to ensure that any policies which may fall foul of the new legislation are identified and discounts on premiums for existing policies be negotiated with insurers and brokers. Roberts Legal can assist with reviewing your current policies to ensure that they are not in breach of the new legislation.
Our team of WHS legal specialists are available to provide assistance in relation to these matters. Call 1300 553 343 to arrange an appointment or click here for more information.
 
By Jeremy Kennedy

The post NSW Health and Safety Act Amendments Passed appeared first on Roberts Legal.

COVID-19 is already affecting Small Businesses and Employees in many industries and is also a major risk for the elderly. What will happen if you lose your parents to the Coronavirus at a time when you are facing bankruptcy or financial hardship? Your parents’ Will could protect your inheritance from creditors, banks and even Bankruptcy. […]

The post Estate Planning & COVID-19: Have your parents got you covered? appeared first on Roberts Legal.

The Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW), which commenced on 24 April 2020, is the NSW government’s response to the National Government’s Mandatory Code. Click here to read our previous article on the Code. The Regulations are valid from 24 April 2020 until 24 October 2020 only and apply to Leases (an […]

The post NSW Commercial Leasing Regulations for Covid-19 appeared first on Roberts Legal.

The Treasury Laws Amendment (Combating Illegal Phoenixing) Act 2019 (Cth) (“the Act”) came into effect earlier this year to combat Phoenix activity. Illegal Phoenixing arises when the assets of a company are transferred for minimal, if any, value to a related company to avoid payment of the transferor company’s debts. Commonly, the transferor company is […]

The post New Laws Introduced to Combat Illegal Phoenixing appeared first on Roberts Legal.

If you missed our recent ‘Hard Choices’ Webinar please find a link to the presentation below.
The Webinar provides a summary and analysis of the JobKeeper program with clear and succinct guidance on what this legislation means for businesses and how the program will operate.
Catastrophic times call for unheard of and heart breaking responses in relation to our workforces. How can we as businesses legally downsize, manage and suspend our labour force without further legal risk? Our industrial and labour legislation doesn’t envisage such challenges to the extent that we are now experiencing so we need to tread carefully and act swiftly.
In this Webinar, our Employment Law expert, Jeremy Kennedy, discusses the options that Australian employers have to manage their employees within the confines of our system, with some practical and strategic choices and measures that businesses can take to assist in these difficult times.

How can we help?
Our expert Employment Law team can assist Employers with:

Drafting and enforcing Employment Contracts including post-employment restraint and confidentiality clauses,
Fair Work Act advice,
National Employment Standards,
Award Interpretation and application,
Termination of Employment,
Unfair Dismissal claims under the Fair Work Act,
Small Business Fair Dismissal Code, and
Sale of business and transferring employee issues.

Fixed Fee Employment Law Solutions for Employers
 
The post ‘The Hard Choices’ Webinar – 14 April 2020 appeared first on Roberts Legal.

The NSW Government has introduced further measures to assist the financial management of your rental properties.

In particular, they are reducing land tax payable on eligible residential and commercial properties up to 25% for the current land tax year. To be eligible:

you must have a land tax liability in the current land tax year,
your property must be used for a residential or business purpose,
you are leasing the property to a tenant who can show they are experiencing financial distress as a result of the COVID-19 pandemic,
you reduce the rent payable from your tenant by at least as much as the reduction you receive on land tax, and
the land tax payable directly relates to the rental property in question.

In line with other government measures to manage the effects of the pandemic, a commercial tenant must be able to demonstrate a 30% drop in revenue, and residential tenants must demonstrate a 25% drop in household income.
The application process is currently not available, but it appears the reduction will be received by way of a refund after land tax has been paid. To assist with paying land tax, Revenue NSW also has an option to apply for an instalment plan or receiving leniency for late payment of land tax.
How can we help?
We will continue to monitor announcements from Revenue NSW and provide an update as soon as we know further. If you have any questions in the meantime, don’t hesitate to contact one of our Property Lawyers on 1300 553 343.
Find out more about Commercial Leases
By Christa Chapman

 
 
The post Commercial and Residential Landlords – Land Tax Reductions appeared first on Roberts Legal.

On 8 April 2020, the Federal Government passed the Coronavirus Economic Response Package 2020 which authorised the introduction of the widely publicised “JobKeeper payment” for eligible employees.
The JobKeeper payment is a wage supplement of $1,500.00 per fortnight (subject to PAYG tax) that is being introduced by the Federal Government to eligible businesses for eligible employees whose jobs and income have been impacted by the COVID-19 pandemic.

Is my business eligible?
A business will be eligible for the JobKeeper payment if:

The business has an aggregated turnover of less than $1 billion (for income tax purposes) and their GST turnover has fallen or will likely fall by 30% or more; or
The business has an aggregated turnover of more than $1 billion (for income tax purposes) and estimate that their GST turnover has fallen or will likely fall by 50% or more; or
The business is not subject to the Major Bank Levy

Which of my employees are eligible?
An eligible employee is an employee of your business who:

Is currently employed (including being stood down) as of 1 March 2020,
Is full-time or part-time, or a casual employee who has been employed on a regular and systematic basis for longer than 12 months as of 1 March 2020,
Is a permanent employee of the employer, or if a casual employee, not a permanent employee of any other employer;
Was 16 years or older as at 1 March 2020,
Was an Australian citizen, the holder of a permanent visa, or a Special Category (Subclass 444) Visa Holder at 1 March 2020,
Was a resident for Australian tax purposes on 1 March 2020, and
Is not in receipt of a JobKeeper payment from another employer.

How do I register?
To register for the JobKeeper payment, a business must register online with the Australian Taxation Office (ATO). Upon registration with the ATO, you will be able to nominate which of your employees are eligible for the JobKeeper payment. Any employees you nominate as an eligible employee for the JobKeeper payment are required to be informed following registration.
How can we help?
We offer fixed fee support for Australian businesses during these unprecedented times that can be accessed via the link below.
With the employment law landscape rapidly changing, now is the time to ensure that your business is compliant with the legislation as it continues to evolve throughout this pandemic.
We look forward to hearing from you and wish you good health through this difficult time.
Fixed Fee Employment Law Solutions for Employers
By Haydon Potter

The post The JobKeeper Payment Explained appeared first on Roberts Legal.

Recently proposed safety legislation in NSW indicates that industrial manslaughter is simply a bridge too far for our state Government.
The introduction and passing by the Legislative Assembly of the Work Health and Safety Amendment (Review) Bill 2020 clearly indicates that we have baulked at this level of regulation in our state. This is despite highly publicised national interest following high profile workplace disasters, a Federal Senate Inquiry – ‘They never came home’ – the frameworks surrounding the prevention, investigation and prosecution of industrial deaths in Australia’ and also an independent review -‘The review of the model Work Health and Safety Laws’ – December 2018, undertaken by Marie Boland, which all recommend such laws.

Other states, commencing with Queensland, have either passed such laws or are working on their introduction, which will see a major shift in the Work Health and Safety landscape. Queensland introduced industrial manslaughter legislation, which commenced in 2018, with fines of up to 10 million dollars against corporations and 20 years gaol for individuals. Victoria has passed similar industrial manslaughter legislation with maximum penalties for corporations of 16.5 million dollars and 20 years gaol for individuals, whilst Western Australia’s proposed legislation has fines of 10 million dollars and 10 years gaol for individuals. The ACT is on the bottom end of the scale with corporate penalties of 1.62 million dollars and 20 years gaol for individuals.
It appears the Labor Government states have taken the lead egged on by the unions, whilst the Liberal/Coalition states have baulked at this move and have taken a more conservative approach. That is not to say that the NSW Government has not had a response at all. In the recent bill the NSW Parliament has introduced a new category 1 offence, that being an offence of ‘gross negligence’. This is in addition to the already existing Work Health and Safety offence of recklessness.
Whilst this falls short of industrial manslaughter legislation, the offence of gross negligence will require a lessor fault element then the already existing offence of recklessness and make it easier for prosecutors to successfully commence proceedings under the highest-level category 1 offence provisions.
The bill also increases maximum penalties under the legislation to $3,463,000 for companies and $346,500 for individuals together with 5 years gaol. Interestingly there has also been a note proposed to be inserted into the Work Health and Safety Act that references the availability of manslaughter in The Crimes Act 1900 as a reminder this is an already existing option for state prosecutors. This offence in The Crimes Act however is only available for the prosecution of individuals punishable by up to 25 years gaol. This is not a corporate offence where incorporated companies or organisations can be prosecuted.
Whilst the bill has fully passed the legislative assembly, it has not yet made it to the Legislative Council and given current developments in regard to COVID-19 and a very distracted Parliament, it may not be until 2021 when the legislation will actually take effect.
Other key elements of the bill for NSW businesses relate to the proposed prohibition on insurance for Work Health and Safety penalties. Currently businesses can take out insurance for penalties handed down by the courts for what amount to criminal prosecutions of breaches of the Work Health and Safety Act.
The bill proposes to make it illegal for such insurances and any indemnities which may be offered under insurance policies or other agreements between companies and their officers and employees. This has been a somewhat controversial issue for many years since the insurance industry developed these products. Whilst legally questionable, there has however been continued reliance upon such insurance products by Defendants with no definitive court judgement on their legality.
Whilst it remains to be seen how these new provisions will be enforced by the state regulator, SafeWork NSW, there is no doubt that such legislation will bring Work Health and Safety into a sharper focus for companies and their directors with high level prosecutions being easier to achieve and the ability to mitigate risk through insurance and taken away by the legislator.
How Can We Help?
Roberts Legal strongly recommends that companies and their officers review their Work Health and Safety systems and policies to ensure compliance with the Work Health and Safety Act, conduct a review of their current insurance program to ensure that they are not paying premiums for what will soon become obsolete products and ensure that they have a disaster management plan in place should the unforeseen and unlikely event of a major Work Health and Safety incident or fatality occur in their workplace.
Roberts Legal can assist in reviewing company Work Health and Safety management systems and policies and provide appropriate training and legal representation in relation to such matters.
 
By Jeremy Kennedy

The post Industrial Manslaughter – A Bridge Too Far For New South Wales appeared first on Roberts Legal.

In response to the COVID-19 situation, the Government has announced the implementation of a mandatory code of conduct (“the Code”) regulating relations between commercial landlords and tenants whose business turnover may be affected by the current restrictions in place. This includes retail, office and industrial leases.
The premise of the Code is to impose ‘good faith’ obligations on both landlords and tenants to negotiate current leasing arrangements, with the aim being to aid cash flow proportionately between landlords and tenants so businesses can remain in operation during the pandemic period and thereafter, and preserve the relationship between the landlord and tenant.
The Code is mandatory and will be regulated by each state and territory upon rollout. It applies to those tenancies where the tenants and landlords are eligible and apply for the JobKeeper program, namely businesses who:

have a turnover of $50 million or less (including franchises at the franchisee level and retail corporate groups),
have lost, or will lose, more than 30% of their turnover as a result of COVID-19, and
are in financial distress.

In particular, the Code means that:

landlords will not be able to terminate a lease on tenants who are unable to pay the regular amount of rent during the pandemic period, nor will a landlord be able to draw on any of the tenant’s security,
landlords will be required to reduce the rent payable in proportion to their tenants reduced turnover during the pandemic period, either through a waiver or deferral of rent, or combination thereof,
any waiver in rent will need to account for at least 50% of the reduction in rent payable,
repayment of rent deferrals (i.e. payments that have been put off) will need to be spread across the greater of the remaining lease term or 24 months, and
tenants must continue to honour the terms of the lease, or else risk forfeiting their rights under the lease.

While currently still being legislated, commercial landlords and tenants should consider whether the Code will be applicable to their situation during the next few months. Upon rollout of the legislation, we will be able to advise you further on your rights and responsibilities under the Code. Please contact us if we can be of any assistance.
For further information click here.
How we can help:
Please contact us on 1300 553 343 or [email protected] if you would like to arrange a telephone or online appointment to discuss your commercial lease and to obtain advice on how to the new code of conduct may impact your business.
By Christa Chapman

The post Commercial Leasing ‘Code of Conduct’ appeared first on Roberts Legal.

COVID-19 is already affecting Small Businesses and Employees in many industries and is also a major risk for the elderly. What will happen if you lose your parents to the Coronavirus at a time when you are facing bankruptcy or financial hardship? Your parents’ Will could protect your inheritance from creditors, banks and even Bankruptcy.

COVID-19 has already had a huge impact on our lives and for some of us the impact has or may be significant. As Lawyers our job is to identify risk and find a way to remove or at least limit the risk.
A Multi Generation Issue
Our older generations are at greater risk of dying from the Coronavirus while younger generations are facing an increased risk of financial hardship or even bankruptcy due to the forced closure of businesses and loss of employment. Every day I hear more stories both on the news and from people around me of redundancies, casual staff being stood down and employment being terminated. Meanwhile, the bills continue to roll in for our homes, our credit cards, our purchases made on credit, not to mention Afterpay!
What concerns me as an Estate Planning Lawyer is the increased risk of entire inheritances being claimed by creditors or a Trustee in Bankruptcy.
So, what can be done?
Discretionary Testamentary Trust Will
If we consider a situation where a person is leaving their Estate to their child, a standard Will leaves the inheritance to the child directly or absolutely. The inheritances passes for the benefit of the child (and their creditors) and is free for the taking by any Trustee in Bankruptcy or a creditor who is owed a debt or has some other claim against the child.
However, a Will can be drafted so that upon the death of the Willmaker a Discretionary Trust is created for each child that will inherit the Estate. When a Will creates a Discretionary Testamentary Trust, the inheritance passes to the Trustee of that Trust (often the child) who holds the inheritance on trust for the beneficiaries of that Trust (typically, the child and their family). As the child has not received the inheritance absolutely, the inheritance would not be available to the child’s creditor or form part of their Bankrupt Estate. Instead, the child only receives the inheritance or parts of it absolutely when the Trustee exercises a discretion to distribute money or assets from the Trust (such discretion should be exercised after obtaining legal and accounting advice).
Whilst Discretionary Testamentary Trusts also have significant advantages for implementing tax minimisation strategies in relation to income or capital gains derived from an inheritance, the asset protection benefits of Discretionary Testamentary Trusts should never be over looked. With the wealth of the aging population being greater than ever, and a pandemic upon us that is putting that demographic at significant risks, now more than ever business owners and other at risk individuals should be insisting that their parent’s Wills create Discretionary Testamentary Trusts.
How can we help?
If you have parents in the at risk category for COVID-19 and their Wills do not create Discretionary Testamentary Trusts for you and your siblings, you should encourage them to contact us on 1300 553 343 or [email protected] to discuss their Wills and Estate Plans and our fixed fee option for Wills creating Basic Discretionary Testamentary Trusts.
 
By Rebecca Wosman

 
The post Estate Planning & COVID-19: Have your parents got you covered? appeared first on Roberts Legal.

At Roberts Legal we understand that the current health crisis may have increased your anxiety in relation to your separation and family law matter. However just because we are encouraged to socially isolate, doesn’t mean that you have to put your life on hold.
Certainly, the way we are interacting is changing, however we are well equipped to continue to offer the same quality service to our existing and new clients.
How our Family Law Team are Dealing with the Crisis
We are conducting all conferences (including smart start conferences via telephone, or if you would prefer to see who you are talking to, we can set up a Zoom meeting (which is a lot like ‘facetime’). If you haven’t used this service before, but would like to, one of our admin staff can talk you through the process.
What are the Courts and Mediators Doing?
Where possible, most mediation facilities are continuing to function via telephone and Zoom. As always, we encourage our clients to attempt mediation if it is appropriate and/or safe to do so.
Whether you have a matter currently before the Court, or you need to file an application with the Court, rest assured that it continues to function.
Last week the Chief Justice of the Federal Circuit and Family Courts, Justice Will Alstergren stated that “Closing down the Courts is not an option”.
The situation is fluid, however at the moment, unless there is a specific reason for personal attendance at Court, all matters are being conducted via telephone or in the case of hearings, via video link.
The Court has always facilitated attendance via telephone and in our experience, it certainly does not prevent your matter from moving forward. It may even serve to reduce costs because there is typically less waiting around!
Some, non-urgent matters are being adjourned and parties are encouraged, where possible to attend mediation.
Personal Safety
If your safety, or the safety of your children, has been compromised as a result of this health crisis, please do not put off calling us. Where necessary, we can file an urgent application on your behalf and help to link you in with social services.
Call us today on 1300 553 343 to book your fixed fee initial consultation or click the Smart Start button below.
Download Family Law Information Pack 
Book a Smart Start Appointment
 
By Linsey Wilson

The post COVID-19 and your Family Law Matter appeared first on Roberts Legal.

Given the impact of COVID-19 on the economy, the casualties will inevitably include businesses as well as individuals. We have all heard of businesses citing COVID-19 as the cause of, or contributing to, their insolvency. On 22 March 2020 the Federal Government announced a number of changes to insolvency laws to provide relief for businesses and to cushion the economic impact of COVID-19.
Please find a summary of the changes outlined below:
Changes to statutory demands:

The threshold for a creditor issuing a statutory demand on a company has been temporarily increased from $2,000 to $20,000
The period for a company to respond to a statutory demand will increase from 21 days to six (6) months

Changes to insolvent trading:

Company directors are relieved from any personal liability for trading whilst insolvent – in relation to debts incurred in the ordinary course of business
Any debts incurred by the company will still be payable by the company

These changes will be in effect for at least six months.
Other temporary changes:
A number of other temporary changes have also been introduced, including similar increases in relation to bankruptcy laws for individuals. The Treasurer has also been provided with the power to make instruments under the Corporations Act to provide temporary targeted relief from specific obligations for companies.
We expect the Government will act urgently to bring these proposed changes into effect. It is not yet known whether the changes will be applied retrospectively.
Impact of the changes:
These amendments are good news for businesses in the current COVID-19 environment. They are designed to lessen the threat of actions that could unnecessarily push otherwise profitable and viable businesses into insolvency during this temporary period.
Until the changes are brought into effect, the “safe harbour” laws may assist directors of companies suffering financial hardship if the requirements are met.
Please click here if you would like a complimentary copy of our Safe Harbour Guide.
And what about suppliers?
For businesses that supply on credit terms, there is likely to be a tightening of credit.
Even without these amendments, in the current economic environment there is a risk that the business you have contracted to supply goods or services to, may be in financial difficulty. With these amendments, there is a further risk that the business you are supplying to may already be trading whilst insolvent.
Whilst the amendments are important for businesses to be able to carry on business during this period, suppliers do need to be conscious about protecting their own interests.
The proposed amendments will increase the risk of a company purchasing goods and services without being in a financial position to pay for those goods and services, thereby putting the supplier at increased risk of financial difficulties.
As such, suppliers ought to act now to review their existing contracts and terms of trade. Options for suppliers to address these risks might include:

Tightening terms of credit
Reviewing your deposit requirements and payment terms
Ensuring that your contracts or terms and conditions provide for adequate security
Registering all security interests, even if you do not intend to commence recovery action at this stage, to ensure priority over other interests where possible

Bottom line:
These amendments are good news for businesses in the current COVID-19 environment. They are designed to lessen the threat of actions that could unnecessarily push otherwise profitable and viable businesses into insolvency during this temporary period.
Whilst the amendments are important for businesses to be able to carry on business during this period, suppliers do need to be conscious about protecting their own interests to reduce flow on effects and financial risks.
It is expected that further measures will be introduced over the coming days and weeks, and we will keep you informed of those changes as they arise.
How we can help:
Please contact us on 1300 553 343 or [email protected] if you would like to arrange a telephone or online appointment to discuss your existing contracts or terms of trade and to obtain advice on how to best implement these changes for your business.
By Felicity Donald

The post Temporary Changes to Insolvency Laws: What You Need to Know appeared first on Roberts Legal.

Podcast: Ep 32 Special Counsel Jeremy Kennedy Explains How New NSW Legislation Wipes Ability To Insure
In Podcast 32 for OHS.com.au, we discuss the new legislation about to go through the NSW parliament that makes WHS Penalties tougher on business owners / PCBU’s.
Once passed, the ability to insure against WHS Criminal Penalties will become illegal. Find out about the new proposed changes to the WHS Regulations
Click here to listen to the podcast
By Jeremy Kennedy

 
The post New NSW Legislation Wipes Ability To Insure appeared first on Roberts Legal.

You are setting up a new business and getting excited about its upcoming launch. Or perhaps you have been in business for a while and want to know more about protecting your business’ reputation and profits.
You have registered your chosen Business Name on the Australian Business Register and reserved a domain name for your website.
Protecting the name and branding of your business is important and could be critical to the success of your business – you want to make sure it is protected and your customers can find you.
You also want to limit the risk of competitors attempting to have a ‘free ride’ on the goodwill and reputation of your business.
When do I need a Business Name?
In Australia, a business can trade under the legal name of its owner, be that an individual, partnership or company, without having to register a Business Name.
However, if you wish to use a name other than the legal owner’s name for your business, it is a legal requirement that you register your chosen Business Name.
Is a registered Business Name or domain name enough?
The short answer is probably not.
Having a registered Business Name does not give you any intellectual property rights in that name, as such. Registering a Business Name is about identifying the legal owner of the business. Owning a registered Business Name will not prevent other people from using the same or a similar name.
Likewise, having a domain name is probably not enough. Usually a domain name will be based upon the Business Name. Like a Business Name, a domain name secures a unique website address for you but does not give intellectual property rights as such.
Something more is needed to protect your products and services in the marketplace, and to deter any competitors from benefiting from your reputation and branding.
What is a Trade Mark?
A Trade Mark is a sign used (or intended to be used) to distinguish the goods and services of your business from those of another business or person.
A Trade Mark could be your logo, Business Name, picture or jingle. Words, phrases, numbers, and even sounds, smells and movement can be a Trade Mark.
Your Trade Mark is what you use to identify your products and services and show your customers who you are.
I have a Trade Mark. Can I register it?
There are a few requirements that must be met for a trade mark to be registrable.
These include that the trade mark:

is a sign used, or intended to be used, to distinguish goods or services in trade from those of others,
is inherently capable of distinguishing the goods or services from those of others,
is not ‘substantially identical with, or deceptively similar to’ another registered trade mark or a pending trade mark that has an earlier priority date, and
is not, when used, ‘likely to deceive or cause confusion.’

It is important to consider these requirements before registering a Trade Mark. In addition, searches of existing Trade Marks may be carried out, so as to identify any issues that might potentially arise. Any issues can then be addressed early, thus reducing the risk of incurring unnecessary costs after an application is lodged.
Do I need to register my Trade Mark?
Registering a Trade Mark is a choice, not a legal requirement.
There are significant benefits of registering a Trade Mark. Perhaps most importantly, it gives you the exclusive right to use, licence and sell the Trade Mark.
Once you have a registered Trade Mark, you can protect your business from any unauthorised use of your Trade Mark throughout Australia. You may also prevent someone else from using a Trade Mark that is substantially the same or deceptively similar to your registered Trade Mark. Remedies for an infringement of your Trade Mark may include obtaining an injunction, claiming damages or seeking an account of profits.
Registering your Trade Mark also means it becomes available on a searchable public register through IP Australia. Prudent people considering using or registering a Trade Mark may search the register for clashes. Having your Trade Mark on the register may therefore reduce the risk of others inadvertently choosing to use the same or a deceptively similar Trade Mark in the marketplace.
If you choose not to register your Trade Mark, someone else may use the same or a deceptively similar Trade Mark in a way which confuses customers and causes detriment to your business. Having a registered Trade Mark makes it easier to enforce your rights against such a competitor without needing to prove all the aspects of a claim in passing off or misleading and deceptive conduct.
How can we help?
Protecting the name and branding of your business is important and could be critical to the success of your business.
Roberts Legal can assist you with advising on whether your Trade Mark can be registered, filing a Trade Mark application on your behalf, and providing you with expert advice on how best to protect the intellectual property assets of your business.
If you would like specific advice about your situation or assistance with your business needs, please call and speak to one of our experienced Intellectual Property Lawyers at Roberts Legal. You can reach us on 1300 553 343 or [email protected].
By Felicity Donald

The post What’s in a Name? The Difference between Business Names and Trade Marks appeared first on Roberts Legal.