Adverse action pinned down by the High Court

Adverse action pinned down by the High Court

The High Court of Australia has handed down its second significant decision on the interpretation of the adverse action provisions in the Fair Work Act 2009 (the Act).

In 2012 the High Court made a decision in the case of Board of Bendigo Regional Institute of Technical and Further Education v Barclay, which provided employers with guidance on what must be established to defend a claim that adverse action had been taken against an employee for a prohibited reason.  This case informed us that if the person who made the decision to sanction the aggrieved employee (such as a HR or operations manager) could provide cogent and credible evidence that no part of their decision involved a prohibited reason (such as participating in a lawful industrial activity), that would be sufficient to resist the employee’s claim.   

,

Sladen Snippet - ASIC’s expectations for directors

,
Sladen Snippet - ASIC’s expectations for directors

In a recent speech to the Australian Institute of Directors, Australian Securities and Investments Commission (ASIC) chairman Greg Medcraft outlined ASIC’s expectations for directors. Previous speeches focused on the director’s role as a gatekeeper, and Mr Medcraft has said this will continue to be a focus for ASIC.

The chairman stated that directors should ensure their company has strong internal and audit compliance functions. He stated these functions are worthless unless the directors back it up with supervision and review, and that these processes are ingrained in the company’s culture. He considered culture a very important point and stressed directors should drive the right compliance culture in the workplace.

, , , ,

Creating the right environment for start-ups

, , , ,
Creating the right environment for start-ups

Proposed amendments to the employee share scheme provisions for start-ups.

On 14 October 2014, the Honourable Bruce Billson, the Honourable Tony Abbott and the Honourable Joe Hockey issued a media release titled "Encouraging employee share ownership and entrepreneurship".

The position of the Government in respect of the application of the employee share scheme (ESS) provisions to start ups has been long awaited, with it being seen as fundamental to the innovative nature of start-up companies, and the need to ensure that they retain a work environment that fosters new ideas.

,

Sladen Snippet - Withdrawing a benefit provided under your enterprise agreement may contravene your “no extra claims” clause

,
Sladen Snippet - Withdrawing a benefit provided under your enterprise agreement may contravene your “no extra claims” clause

A Victorian water authority was found to have contravened the no extra claims clause in its enterprise agreement, in a decision handed down by the Fair Work Commission (FWC) last week. The authority made changes to a vehicle policy which provided some employees with limited private use of work vehicles.  The enterprise agreement itself contained no provisions dealing directly with the provision or private use of motor vehicles.

Contracting Liability Exposed - The contractor / employee enigma

Contracting Liability Exposed - The contractor / employee enigma

The decision over whether to engage employees or contractors in business is a complex problem that many struggle over. This article highlights a case that illustrates how getting it wrong can evoke dire consequences.

In 2013 the case of Ace Insurance Ltd v Trifunovski came up before the Federal Court. This case dealt with a claim by five insurance agents, who asserted that they were engaged as employees and not contractors. Their payment terms were on a commission basis from premiums they had collected. Each agent carried out their respective duties using their own car, and engaged their own secretarial support. The agents also issued tax invoices for their services and each agent was contracted to the insurer through a company. The insurer deemed them to be contractors, and didn’t pay them any leave entitlements.

,

Sladen snippet – Recent successes with excess contributions

,
Sladen snippet – Recent successes with excess contributions

Sladen Legal had two recent successful applications to disregard or reallocate excess non-concessional contributions, with the result that significant excess contributions assessments were extinguished or reduced to a nominal amount.

In the first case the client inadvertently triggered the bring forward rule by paying what she thought was an insurance premium, but was in fact a contribution to a retail superannuation fund (that in turn funded an insurance policy held by the fund). The client also made a $150K non-concessional contribution in that year followed by a $450K in the following year (causing excess non-concessional contributions of over $150K). The Commissioner of Taxation agreed that special circumstances existed and agreed to reallocate the “insurance” contribution to the second year reducing the excess contributions tax from over $70K to approximately $1,500.