by theladInformation About Powers Of Attorney
Powers of Attorney provide authority for another person to make decisions on your behalf, during your lifetime, in relation to financial, personal and medical treatment matters. All Powers of Attorney cease effectiveness upon your passing.
Enduring power of attorney
An Enduring Power of Attorney authorises your appointed attorney(s) to make decisions on your behalf in relation to both financial and personal matters. As the name suggests, it endures for your lifetime, even after you have lost your cognitive capacity.
Some examples of the powers your attorney(s) may exercise include:
- Conducting property and financial transactions.
- Decide where you live, whether permanently or temporarily.
- Decide on your daily diet and dress.
- Restrict visitors, as far as it is necessary to protect your best interests.
The exercise of powers in relation to financial matters can come into effect upon the completion of your Enduring Power of Attorney, although may only be used with your direct instruction while you have cognitive capacity. This may be useful in situations where you are overseas or otherwise unable to carry out specific tasks (i.e. lack of mobility).
Conversely, powers pertaining to personal matters will only ever come into effect when you are no longer in a position to make these decisions for yourself.
Appointment of medical treatment decision maker
An Appointment of Medical Treatment Decision Maker authorises your appointed decision maker to make decisions on your behalf in relation to your health and medical treatment.
The person responsible for making a medical treatment decision will be the first person listed on the appointment who is reasonably available and willing to act at that time. Your decision makers have very significant responsibilities, including:
- Authorising the switching off of a life support machine.
- Authorising or refusing medication.
- Authorising or refusing operations and procedures.
Like personal matters, medical treatment powers under an Appointment of Medical Treatment Decision Maker will only ever come into effect when you are no longer in a position to make these decisions for yourself, as certified by a doctor.
General non-enduring power of attorney
A General Non-Enduring Power of Attorney authorises your appointed attorney(s) to make decisions on your behalf in relation to financial affairs only.
In contrast with the Enduring Power of Attorney, a General Non-Enduring Power of Attorney will cease operation when the maker loses their cognitive capacity.
These documents are predominantly used for a specific purpose and time-frame, often in situations where a person requires assistance managing their finance or business interests while they are unavailable.
Contacts
Senior Associate
E: bfranklin@dsalaw.com.au
Lawyer
E: mhickey@dsalaw.com.au
by theladInformation About Wills
A Will sets out who is to receive the benefit of your estate and under what circumstances, after you have passed away.
Executors
In addition to setting out who is to receive the benefit of your estate, a Will also sets out who is in charge of ensuring these wishes are carried out – known as your executor.
You can appoint up to four (4) executors in your Will. Alternatively, you can nominate an organisation or institution, such as a legal or accounting firm, to act as your executor. Appointing a professional to act as your executor can have significant benefits:
- Where there is the possibility of a family dispute over the division of your estate, appointing a professional to be your executor allows your estate to be administered impartially.
- Large and complex estates can often be very difficult to Administer. By appointing a professional to be your executor, they often have the requisite experience and expertise to deal with these matters and avoid common pitfalls.
- If you appoint a family member or friend, who subsequently passes away, you may be left in the situation whereby you have no one appointed to administer your estate. By appointing a professional firm or company to act on your behalf, there will always be someone available to step into the role of executor.
If you would like to discuss appointing DSA Law to be your executor, please contact our office for a further discussion.
What can i give away under my will?
All assets owned in your sole name will form part of your estate to be distributed in accordance with your Will.
However, when considering what your estate comprises, it is important to consider that some assets do not automatically form part of your estate, including:
- Assets owned jointly with other persons.
- Assets held in a trust, such as a family trust.
- Superannuation and life insurance.
These types of assets are treated differently when it comes to their distribution following your passing. When planning for the succession of such assets, you should consult with your legal representative and/or accountant.
Testamentary trust wills
A Testamentary Trust Will allows your beneficiaries to direct some or all of their inheritance into a special trust set up in your Will, which provides a more tax-effective way of holding and investing inherited assets.
These types of Wills can also provide increased protection for those beneficiaries who are, or may at a later stage be, going through a relationship breakdown or insolvency.
Testamentary Trusts are not able to be created at a later stage, if they are not incorporated into your Will – which is often a flaw with basic Wills. Beneficiaries may then find themselves with no alternative but to inherit significant assets, which could be detrimental for tax-planning and asset protection purposes.
What if I have underage or disadvantaged beneficiaries?
If any of your beneficiaries are under the age of eighteen (18) years, then their share of your estate must be held on trust (subject to your executors’ ability to advance funds early for the purposes of maintenance, education, etc.) You can also specify a higher age, as you deem appropriate.
For children under the age of eighteen (18) years, you can also appoint a guardian, who will assume responsibility for your children’s care until they reach the age of majority.
Where one (or more) of your beneficiaries is disadvantaged to the extent that they are not able to sensibly deal with their inheritance (i.e. mental impairment, spendthrift, etc.), you may establish a trust to hold their inheritance, thereby allowing for its proper application.
How do I leave someone out of my will?
At law, a Willmaker is obligated to make provision for anyone to whom they have a responsibility, such as their children, spouse or any other persons who are dependent on them.
However, we acknowledge that everyone has their reasons for the way in which they wish to distribute their estate, which can often mean the exclusion of a person or people to whom they would normally be obliged to provide for.
If you are intending to exclude someone from your Will whom may otherwise be eligible to make a claim against your estate, it is highly recommended to seek expert legal advice on how this can be achieved.
Contacts
Senior Associate
E: bfranklin@dsalaw.com.au
Lawyer
E: mhickey@dsalaw.com.au
by theladI bought a second-hand car and it’s a lemon. What are my rights?
A lemon experience
When life gives you lemons, you make lemonade as the adage goes.
But what happens when you buy a rust bucket thinking it was the best purchase of the year and then you find out that the car cannot be driven. They can’t be squeezed to make lemonade no matter how hard you try to squeeze.
What is lemon law?
“Lemon law” is not established in Australia. Rather, when you look at disputes in Court, it is generally about how the Australian Consumer Law (“ACL”) may apply to second-hand cars when purchased from a second-hand car dealer.
In Victoria, the Motor Car Traders Act 1986 (Vic) may also apply to assist regarding “lemon” cars. However, this article will address the application of the ACL for consumers purchasing second-hand cars.
If a person purchases a second-hand car from a car dealer, section 4 of the ACL defines a person as a consumer if the car bought is for less than $40,000, is the kind ordinarily acquired for a personal, domestic or household use, or for use principally in the transport of goods on public roads.
Therefore, if your car is below $40,000, and you bought that car from a second-hand car dealer, generally, you will be protected by the ACL.
You might ask, what about a second-hand Mercedes, BMW or a Porsche? That’s an interesting question because if you bought a premium car for more than $40,000, this may not be barred from the protection of the ACL. For example, a second-hand BMW or Mercedes could be the kind ordinarily acquired for personal or domestic use, and therefore, you could still be classed as a “consumer”.
What are my lemon rights?
The ACL outlines number of guarantees that may apply to second-hand cars:
- guarantee for fitness of disclosed purpose
- guarantee of acceptable quality
- guarantee of express warranties
If you felt your car was a lemon, then what can you do? If you want to return the lemon car, then you may have to show the car has a “major failure”. This is a high threshold. For example, the car would have to be shown to be a lemon because:
- the car would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure
- the car was supplied and departs significantly from that description
- the car is substantially unfit for the purpose which the car of the same kind are commonly supplied
- the car is unfit for disclosed purpose that was made known to
- the car is an unacceptable quality
Generally, this would not mean that if you paid $20,000 for a car, and there are scratches costing $500 to repair, then you will be entitled to claim for “major failure”. Instead, the defects would have to be substantial to be considered a “major failure”. For example, you pay $20,000, but the engine breaks down costing $15,000 to repair.
Where do I lemon from here?
As an owner of a lemon car:
- Talk to the car dealer if they are willing to take back the lemon car.
- If they reject and you are still unsure about what to do next, then you should consider getting legal professional help to ensure that you understand what kind of relief you may claim.
While “lemon car” laws are unclear, there are laws there to help protect you and your car. Maybe lemonade can be made from rust buckets after all.
The litigation lawyers at DSA Law know how to win cases and how to maximise your recoverable costs. Allow us to advise you about what strategies can be employed in your specific matter to get you the best possible outcome.
For more information, contact us today on 03 8595 9580.
Written by Ben Franklin, Senior Associate at DSA Law.
by theladCan I challenge my speeding ticket?
Most drivers will, at one time or another, get caught for exceeding the speed limit. Speeding offences can lead to
- significant fines being imposed,
- the accumulation of demerit points against your driver licence, and
- the automatic mandatory suspension of your driver licence (should you exceed the speed limit by 25 km/h or more).
If you are detected speeding by either a fixed road safety camera or a police officer using a speed gun, you will most likely be issued with an Infringement Notice. If you receive an Infringement Notice, and wish to challenge it, your options are as follows:
1. Nominate the Actual Driver
If you were not driving the vehicle at the time of the alleged offence, you should nominate the person who was driving. This is particularly important if the vehicle is registered in a company’s name, as the fine imposed is generally ten times that for an individual, and failure to nominate can result in further penalties being imposed.
2. Application for Internal Review
One option for dealing with an infringement notice is to apply for an internal review by writing to Victoria Police. If you decide to apply for an internal review, you are asking Victoria Police to withdraw the infringement notice and issue an official warning instead. If Victoria Police does withdraw the infringement notice, you will not be required to pay any fine and you will not accumulate any demerit points against your driver licence.
Whilst Victoria Police has discretion to withdraw an infringement notice, they generally will do so in only limited circumstances, namely, where you have exceeded the speed limit by less than 10 km/h, and if your driving record for the previous two years is clean (see Victoria Police’s website for further information https://www.police.vic.gov.au/official-warnings).
In an application for internal review, an admission of liability for the speeding offence will be considered favourably by Victoria Police, and it is more likely the infringement notice will be withdrawn. You should not admit liability if you did not commit the alleged offence and wish to challenge the alleged offence in Court.
3. Object to the Infringement Notice
You may object to the infringement notice and have the matter referred to Court. You must object to the infringement notice before the due date (generally 28 days after the date of the notice) by completing the relevant section on the infringement notice and sending it to Fines Victoria.
When you object to the infringement notice, Victoria Police will withdraw the infringement notice and file charges with the Court. The matter is then dealt with through the Court process.
If you wish to object to an infringement notice, and challenge the alleged speeding offence, we strongly suggest engaging a lawyer to substantially increase your chances of success.
At DSA Law, we have vast experience in dealing with road safety matters, and have a track record of successfully contesting speeding offences.
If you would like to discuss your options in dealing with an infringement notice, or require assistance in challenging a speeding offence, please contact our office to speak to one of our lawyers.
Contact us today on 03 8595 9580
by theladSmall businesses and unfair contract terms
Have you recently signed an unfair contract as a small business operator?
If so, your small business may be protected under Australian Consumer Law.
Australian Consumer Law protects consumers from unfair terms in a contract. In November 2016, the law was amended to extend these protections to small businesses.
Is my small business protected? First Steps
To be protected from unfair terms as a small business, the contract must be a standard form contract entered into or renewed on or after 12 November 2016. A standard form contract is a contract prepared by one party where the other party has little opportunity to negotiate the terms. These contracts are typically offered on a take-it-or-leave-it basis. Additionally, the following criteria must apply:
If you have been listed as a Defendant (sometimes referred to as the Respondent), the proceeding is a civil one, meaning there is no immediate risk of criminal charges.
- at the time the contract is entered into, at least one party to the contract must be a business that employs fewer than 20 persons, and
- the upfront price payable under the contract must be less than $300,000 (or $1,000,000 if the contract is longer than 12 months), and
- the contract is for the supply of goods or services or the sale or grant of an interest in land.
When is a contract term ‘unfair’?
The law sets out examples of terms that may be unfair, including:
- terms that enable one party (but not the other) to avoid or limit their obligations under the contract
- terms that enable one party (but not the other) to terminate the contract
- terms that penalise one party (but not the other) for breaching or terminating the contract
- terms that enable one party (but not the other) to vary the terms of the contract.
What are the exceptions?
While the unfair contract terms laws cover most standard form contracts and contractual terms, there are several exceptions, including:
Generally speaking, yes. However, in some limited circumstances, you may not need a lawyer.
- contracts entered into before 12 November 2016 (unless renewed on or after this date)
- shipping contracts
- constitutions of companies, managed investment schemes or other kinds of bodies
- certain insurance contracts (e.g. car insurance)
- contracts in sectors exempted by the Minister – no sectors are currently exempt
Who can assess fairness?
Only a court or tribunal can assess the fairness of terms. If a court or tribunal finds that a term is ‘unfair’, the term is no longer valid. However, the rest of the contract will continue to bind the parties.
Do you have concerns that you may have entered into an unfair contract?
Do you feel like you are eligible for protections under the law?
Contact us today on 03 8595 9580
by theladI have just been served with Court documents where I am listed as the Defendant – do I need a lawyer?
Welcome to “Do I need a lawyer?”. This is where we dissect various instances where you might require legal advice and how the team at DSA Law can help in such instances.
You’ve just been served with Court documents. They might allege you owe money or require you to attend Court on a specific date. Do you need a lawyer?
First Steps
DO NOT PANIC.
If you have been listed as a Defendant (sometimes referred to as the Respondent), the proceeding is a civil one, meaning there is no immediate risk of criminal charges.
At first reading, there are three simple things you should take note of:
- Who is the Plaintiff (sometimes listed as the Applicant);
- What do they claim; and
- What do you need to do and by when
While most Court applications seem scary at first, reading the document carefully will outline what you as the Defendant need to do next and by what date.
Do I need a lawyer?
Generally speaking, yes. However, in some limited circumstances, you may not need a lawyer.
If you do not dispute their claim, you should contact the Plaintiff and/or their lawyer and make an offer to pay the amount sought. It is vital that before making such an offer, you expressly state that it is made “Without Prejudice”. Basically, this means it cannot be disclosed to the Court until the proceeding is finalised.
If the Plaintiff does not accept, they may object to the amount offered or the timing of any payments, then it might be worth engaging a lawyer to negotiate the settlement.
Why do I need a lawyer?
Litigation can be complicated. Each forum has its own rules and regulations which need to be adhered to and on which the balance of a matter can seemingly turn, even if you are in the legal right.
If you dispute their claim and hope to contest it, we suggest engaging a lawyer to do so on your behalf. Not only will they be able to navigate the complex legal structures but also provide you with advice as to any potential defences and liabilities.
Where can I get help?
Here at DSA Law, our lawyers have a wealth of litigation experience across a vast array of legal fields. We will assess your legal position and provide timely cost-effective advice on how to proceed. Even prima facie hopeless cases can be dealt with in a manner which brings the proceedings to an end and is cost-effective. DSA can negotiate on your behalf and hold off creditor claims.
If you have been served with Court documents and you are at all unsure of your rights and how best to proceed, or if you would like us to engage the other side to negotiate a settlement, please give us a call to arrange a friendly first conference.
Contact us today on 03 8595 9580
Written by Frank Starvaggi, Paralegal at DSA Law.
by theladI am in the right; will the other side have to pay all of my legal costs?
The general rule is that the successful party will have its costs paid by the unsuccessful party. In addition, the unsuccessful party will bear their own costs.
That sounds great; but it still doesn’t mean you will get all of your costs. The usual order is for costs on a standard basis (since 1 April 2013). The rule of thumb is that you can expect to receive around 65% of the costs you have actually incurred through the process of taxation, where costs are taxed on a standard basis. ‘Taxation’ is the technical term for the court’s process of assessing how much the unsuccessful party is to pay and is measured against the relevant Court’s ‘scale’ of permitted costs.
You are about to say: “But why should I be left out of pocket? The other side was in the wrong, the court said so!” The law makers that set the relevant ‘scale’ for each court continue to set it at well below market rates for a senior lawyer. Whether this is an attempt at finding an ‘average’ of those doing the work, or by design to encourage pre-trial settlement, litigants must accept it as a reality. The rationale is that a case is more likely to settle if both parties know they will be left out of pocket should the matter proceed, even if they go on to win their case or successfully defend the case against them. In this way, parties are encouraged to settle their dispute prior to trial (e.g. see Ugly Tribe v Sikola (2001) VSC 189 at para 10).
To maximise your recovery of costs, what you need to have is an order that the other side is to pay your costs on an indemnity basis. Indemnity costs should cover you for virtually all of the costs that you have incurred since issuing the court proceeding. A court will only make an order for indemnity costs in certain circumstances; for example, where a litigant commences proceedings, or an application within a proceeding, with a wilful disregard for known facts or clearly established law.
The most certain way to obtain an order for indemnity costs is to make an offer of compromise in accordance with the court rules, or what is known as a Calderbank letter. Calderbank letters are sufficiently complex to require their own article. If your matter is a simple question of how much money is owing, then an offer of compromise pursuant to the court’s rules is simpler. If you make an offer of compromise and it is rejected by the other side, you will be entitled to a more favourable costs assessment from 11:00am, two business days after the offer is made if the determination of the court is more favourable to you than the offer you made. The rationale behind these courts rules is to reward litigants who make offers to settle, and to punish litigants that cause unnecessary costs to be incurred by rejecting reasonable offers. Accordingly, it pays to make an early offer; even if you think the other side will not accept it.
The litigation lawyers at DSA Law know how to win cases and how to maximise your recoverable costs. Allow us to advise you about what strategies can be employed in your specific matter to get you the best possible outcome.
This information is limited to Victorian and Federal Courts, not tribunals for the Family Court.
For more information, contact us today on 03 8595 9580
Written by Jonathan Hancock, Associate and Ben Franklin, Senior Associate at DSA Law.
by theladAre you up to speed on unpaid parental leave?
Unpaid parental leave is an important area of employment law that is regularly overlooked by employers. We often find that employers have not turned their minds to the management of unpaid parental leave, until it is too late and a workplace dispute has arisen.
We aim to bring all employers up to speed on the essential ‘must knows’ of unpaid parental leave.
Let’s start at the beginning
The National Employment Standards (NES), which apply to all employees in Australia, establish the minimum unpaid parental leave entitlements.
In short, all employees are eligible for unpaid parental leave, as long as they have completed at least 12 months of continuous service with their employer.
The entitlement itself constitutes 12 months of unpaid leave, as long as the leave is associated with the birth of the employee’s child (or employee’s spouse), or the placement of a child under 16 years of age with the employee for adoption.
On-going consultation
Employers have an on-going obligation to consult with their employee, particularly when it comes to issues relating to the employee’s pre-parental leave position and their return to work.
This obligation requires the employer to be proactive and engage with the employee regularly to discuss possible changes to the workplace and how such changes may affect the employee’s role.
An employer will not satisfy the obligation to consult by simply informing an employee of a workplace related decision or change. Rather, it requires an ongoing and persistent dialogue between the employer and employee, so as to allow the employee an opportunity to consider and voice their concerns regarding changes in the workplace, before they are implemented.
Can an employee work while on unpaid parental leave?
It is common for an employer to require an employee to perform some work while they are on unpaid parental leave.
Should this be the case, the employer can request a ‘keeping in touch’ day, which allows the employee to perform some work while they are on leave.
Employers must take care when requesting a ‘keeping in touch’ day. An employee can only work up to ten ‘keeping in touch’ days over any 12 month period, all of which must be paid as an ordinary day of work.
In addition, an employer cannot request a ‘keeping in touch’ day within 42 days of the date of birth or placement of a child. However, an employee can request a ‘keeping in touch’ day, as long as 14 days have elapsed since the date of birth or placement of a child.
Most importantly, employers need to be aware that even though they can request an employee to perform a ‘keeping in touch’ day, the employee must ultimately consent (such consent cannot be unreasonably withheld).
Can an employee request more than 12 months leave?
An employee who has completed 12 months of unpaid parental leave may request an additional 12 months of leave. Such a request must be made in writing. The employer must respond, in writing within 21 days of receiving such a request.
While an employer can refuse an employee’s request for additional leave, the refusal must be based on reasonable business grounds only. In addition, prior to refusing such a request, the employer must consult with the employee and allow them an opportunity to discuss the request.
What happens on the employee’s return to work?
An employee who has been on unpaid parental leave has an entitlement to return to the same role that they had prior to taking leave. This is referred to as the ‘return to work guarantee’.
The ‘return to work guarantee’ regularly causes mix-ups and confusion among employers, particularly when the employee’s position no longer exists, or another employee has been placed in that role.
Pursuant to the consultation obligation, an employer should have already consulted with the employee on workplace changes that may affect the employee’s role. Should the employee’s role no longer exist, but the employee is able and qualified to perform another vacant role, then the employee is entitled to be placed in that vacant role. In the event there are two vacant roles, the employee will be entitled to the role which is closest in status and pay to their pre-parental leave role.
Should there be no available roles at all, the employee’s employment will come to an end by way of redundancy. Even though an employer can make an employee’s role redundant while that employee is still on unpaid parental leave, the employer must still comply with the redundancy provisions of the Fair Work Act 2009 (Cth).
Finally, the fact that the employee is on unpaid parental leave at the time their role is made redundant cannot influence the employer’s decision to make the role redundant.
What about the employee who filled the role?
When hiring or transferring an employee to fill in for another who is on unpaid parental leave, the employer must ensure the replacement is aware that their engagement/transfer is temporary and that the employee who is on unpaid parental leave is entitled to have their role back when they return to the workplace.
Importantly (and regularly overlooked), an employer must inform the replacement that the employee’s unpaid parental leave may end early, should something unexpected happen to the child, or should the employee cease having responsibility for the care of the child.
This is merely a snapshot of the various laws that regulate unpaid parental leave. As an employer, it is critically important that you obtain professional advice when it comes to managing employees who are considering taking unpaid parental leave, or are returning to the workplace.
Contact us on 03 8595 9580 for more information.
Written by Philip Heaven, Associate at DSA Law
by theladThe work Christmas party, a good time or potential liability?
The silly season is well and truly upon us! For many, this means blowing off steam at the annual work Christmas party.
While this is often the highlight of the long work year, a degree of care must be exercised when organising and hosting such a party. From a legal point of view, the Christmas party is generally accepted as an extension of the workplace itself.
To help you ensure a (safe) fun event, we’ve put together this list of top tips to keep in mind when organising your work Christmas party.
1. Where will the party be held?
This is key, given offsite locations become a ‘workplace’ for the purposes of OHS and discrimination legislation. As such, it should go without saying that the Christmas party should be held in a safe, sensible location.
If a venue has been hired, ensure it is properly equipped to hold parties. Does the venue have proper fire exits and other essential safety measures in place? Are toilets and non-smoking areas adequately signed?
While you are not expected to exercise a forensic level of scrutiny, you must exercise common sense. Asking yourself whether the location is safe enough for your family is usually a good start.
If the party is going to be held at your workplace, consider whether this location is in fact safe for such an event. Does furniture need to be moved? Are there hazards that pose a risk if people are drinking alcohol? Could something in the office be damaged?
2. Will alcohol be served at the party?
Not surprisingly, alcohol is often the issue that leaves many employers with a headache (and not just from drinking it!)
Ensure the venue is licensed and the staff are RSA (Responsible Service of Alcohol) trained.
If the Christmas party is going to be held at your workplace and you are supplying alcohol (or allowing employees to bring their own), store the alcohol in one central location and task somebody (who is not drinking and preferably RSA trained) to serve.
Also make sure sufficient food is available, so people are not drinking alcohol on an empty stomach.
Finally, ensure there is a sufficient supply of non-alcoholic beverages available for those who do not want to drink alcohol.
3. How will people get home?
No matter the location, make sure all staff are given sufficient information on how to get home safely. Advise them of the nearest train station, bus station and taxi cab rank. Consider supplying taxi vouchers or organising a car pool to minimise any risks.
For those employees who may have had too much to drink, don’t simply say goodbye at the end of the night and leave them to get home on their own. Rather, exercise the level of care you may for a friend or family member, and do what you can to ensure they get home safely.
4. Anything further?
Yes! Given the Christmas party is an extension of the workplace, make sure all staff are briefed beforehand that the standard of conduct expected of them at the party is the same standard expected in the workplace.
Simply send out a group email or have a quick staff meeting to ensure everyone is alerted to the fact that workplace policies on behavior/discrimination/harassment will still apply at the party.
Also, set clear expectations on alcohol consumption. Let employees know prior to the party that if they are too intoxicated, they will not be served and while at the party, keep an eye on the alcohol consumption, even if you are not responsible for serving it.
Finally, when organising all aspects of the work Christmas party, be mindful not to offend anyone. Don’t choose music, entertainment or a venue that some may consider offensive.
While not a conclusive list, being mindful of these various issues and exercising care will help reduce the risk of legal issues arising from the work Christmas party.
by theladEmployer update – casual conversion
What happened?
On 1 October 2018, a significant change to the majority of modern awards came into effect. This change, referred to as ‘casual conversion’, affects most employers across Australia, including those operating in the hospitality and retail industries.
In short, casual conversion provides a pathway to casual employees, who, if certain criteria are met, may be entitled to convert their employment status from casual to part-time or full-time.
How does it work?
Broadly speaking, casual conversion allows casual employees whose employment is ‘regular’ to request that their employer convert their casual employment to part-time or full-time employment.
For an employee to satisfy the requirement that their casual employment is ‘regular’, they must have worked the equivalent of 38 hours per week (i.e. full-time equivalent) over the preceding 12 months.
For an employee who has worked less than 38 hours per week over the preceding 12 months, they may request to have their casual employment converted to part-time employment, based on the equivalent hours they have worked.
Any casual conversion request from an employee must be made in writing.
Can an employer refuse the casual conversion request?
Yes, an employer may refuse a casual conversion request.
However, refusal must be based on reasonable grounds. Furthermore, the employer must consult with the employee on their decision.
Reasonable grounds may include the following:
- That casual conversion would require a significant adjustment to the casual employee’s hours of work.
- 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 hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months.
- It is known or reasonably foreseeable that there will be 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.
Should the employer refuse an employee’s casual conversion request, such refusal must be communicated to the employee in writing, within 21 days of the casual conversion request being made.
Should the employer and employee not see eye to eye on the casual conversion request, the matter may be referred to the Fair Work Commission under the relevant dispute resolution clause in the applicable Modern Award.
Should an agreement on casual conversion be reached, such an agreement must be reduced into writing, and also record the new form of employment (i.e. part-time or full-time).
What should I do now?
An update to a Modern Award (such as this) presents a great opportunity to review your business’s employment policies and procedures.
Ensure you know if a Modern Award applied to your business and employees. If one does apply, familiarise yourself with its terms.
If you have casual employees, make sure you provide them with a copy of the casual conversion clause by no later than 1 January 2019.
Most importantly, should an employee request casual conversion, don’t assume such conversion will be detrimental to your business. Consider the upsides, such as greater employee engagement.
Should you not be able to accommodate a casual conversion request, seek professional advice first, to ensure that your reasons for refusal are clear and comply with the relevant Modern Award.
Finally, remember that the requirement to consult your employee does not simply mean communicating your decision. Rather, consultation requires you to take the time to sit down with your employee and discuss with them, openly and frankly, your views and concerns on casual conversion. Likewise, you must also listen to, and consider, the views and concerns of your employee.
by theladCommon misconceptions about Wills
Do I need a Will?
This is one of the most common questions asked by our clients (other than “will I win?”) Generally speaking, we find that people are evenly split on this issue, with half thinking a Will is a good idea, and the other half not.
For those who consider a Will to be unnecessary, such perception is usually based on assumptions that only wealthy people need a Will, or that if somebody dies without a Will, the estate will always go to the deceased’s domestic partner.
For many of those who believe having a Will is a good idea, a large cohort of them consider a standard ‘will kit’ to be as effective as a professionally drafted Will.
In short, these assumptions are false – everybody needs a Will, and every Will should be professionally drafted by a lawyer.
Don’t only wealthy people need a Will?
No. Everybody needs a Will.
While you may not consider yourself wealthy today, you cannot predict the future. What if you land that big promotion? What if you inherit money yourself?
Additionally, people can sometimes die unexpectedly in a way that results in compensation or insurance funds being paid out to a deceased person’s estate.
Furthermore, most superannuation schemes have life insurance (or a like policy) included as part of their fund membership, which can also result in large payments to an estate.
Won’t my estate go to my domestic partner?
Ordinarily, yes. But not always.
Each state has their own intestacy laws (when someone dies without a Will they die intestate). For example, in Queensland, only the first $150,000.00 goes to the deceased’s domestic partner, with a remaining portion going to any surviving children. This sometimes leads to unfortunate situations where the domestic partner must hold money on trust for small children, resulting in that money being quarantined and not available for general household use.
Equally, you may decide that you want to gift part of your estate to somebody else, such as a friend, a sibling, or even a charity. More often than not, intestacy laws will not accommodate such gifts.
Why put your faith in the intestacy laws when you can decide for yourself where you would like your estate to go?
Can I use a Will kit?
This is a question we hear everyday – why pay a lawyer when I can use a Will kit?
Beware! Will kits vary dramatically in quality, from the ‘just OK’ all the way down to the absurd (why does this Will kit not allow me to nominate an Executor?)
Not only can the quality of the Will kit cause problems, but so too can the person who is completing it. It is not uncommon to discover that a Will, completed by a recently deceased, was filled out incorrectly, or not executed properly. This can cause problems for the surviving family, as time and money if often then spent trying to determine the true intentions of the deceased, or explaining to the Court why the Will was not executed properly.
It’s not worth the risk
You’ve worked hard to build up your wealth. Wouldn’t you prefer to decide where it goes?
Having your Will drafted by a lawyer will help ensure your wishes are properly reflected in your Will. Additionally, a professionally drafted Will can help prevent legal challenges to your estate.
by theladHow to avoid an unfair dismissal claim
Do you operate or manage a business? Are you considering terminating an employee who is causing you grief by always arriving late, or just not completing their work to the high standard you require?
If so, you must exercise a high degree of care when terminating that employee, otherwise you run the serious risk of being on the receiving end of an expensive unfair dismissal claim.
Serious misconduct
Serious misconduct is conduct that is considered sufficiently serious to warrant immediate dismissal, without the provision of notice.
Serious misconduct can include theft, fraud, violence, or a serious breach of occupational health and safety laws.
Should you believe an employee has engaged in serious misconduct, we recommend you seek professional advice first, as the boundaries of what may be considered serious misconduct are often blurred.
Don’t forget, even though an employee may have committed serious misconduct, they are still entitled to their employment entitlements, such as annual leave and long service leave.
What if the employee has not engaged in serious misconduct?
A high degree of caution must be exercised where an employee has not engaged in serious misconduct.
While certainly not intended to be a definitive guide, the following may assist you in reducing the likelihood of being on the receiving end of an unfair dismissal claim.
1. Do you have a valid concern about the employee’s capacity or conduct in the workplace?
A valid reason will be well-founded, defensible and not spiteful or fanciful, and not related to the employee’s capacity or conduct. Dismissing an employee for a reason not related to their capacity or conduct is often a guaranteed way to get yourself before the Fair Work Commission.
2. Have you adequately warned the employee about your valid concern?
Putting your employee on notice about your valid concern is absolutely critical to ensuring any subsequent dismissal is fair. How can an employee be expected to improve their capacity or conduct if they are not aware of your concern? In addition, rather than simply handing your employee a warning letter, consider sitting down with them to discuss, in a non-confrontational manner, your concerns.
3. Have you notified the employee that they could be terminated, should they fail to improve their capacity or conduct?
It goes without saying that people should be told the risk their capacity or conduct poses to their continuing employment. Being open and straightforward with your employee about this is often the deciding factor in whether any subsequent dismissal was fair.
4. Have you given the employee sufficient time to improve their capacity or conduct?
Generally speaking, this is a matter of common sense, as people should be allowed a reasonable opportunity to rectify their poor performance and improve. How much time you should give an employee to improve their performance will be dependent on the duties they perform and what, in particular, needs improvement.
What happens next?
You should only consider proceeding with the termination of an employee once you have satisfied the above requirements and the employee’s capacity or conduct has not improved.
Importantly, if you are a Small Business Employer (you employ fewer than 15 people), we recommend you read and follow the Small Business Fair Dismissal Code Checklist. Doing so may further reduce the risk posed by any subsequent unfair dismissal claim.
Even armed with this information, we recommend employers still seek legal advice, prior to terminating an employee. Every workplace and employee is different, and every termination requires a targeted and bespoke approach.