NTEU opposes sessional teacher vote in enterprise bargaining

NTEU opposes sessional teacher vote in enterprise bargaining

The Federal Court has revoked a decision made by the Fair Work Commission (FWC) to approve the Swinburne University of Technology’s 2014 enterprise agreement (EA), due to the inclusion of casual or sessional employees in the voting process.

In February 2014 the University requested staff to vote in favour of the agreement, including individuals who had been engaged as sessional employees during the 2013 academic year. The University considered 2005 of the votes cast to be valid, and made an application to the FWC for approval based on a slim 57 majority votes in favour of the agreement.

Sladen Snippet – An expensive conversation – the dangers of verbal agreements

Sladen Snippet – An expensive conversation – the dangers of verbal agreements

A recent judgment of the New South Wales Supreme Court serves as an important reminder that verbal agreements can be just as enforceable as written agreements. In the case of Yulema Pty Ltd & Anor v Simmons & Anor [2015], the Supreme Court upheld contractual obligations imposed by a verbal agreement in October 2009. As a result, the defendant was required to pay the plaintiff approximately $350,000 plus interest from May 2011. It is significant to note that the Court upheld the agreement notwithstanding that one of the parties involved in the negotiations was unable to give evidence because they had passed away.

Sladen Snippet - Big payout the result of an employer’s failure to make reasonable adjustments

Sladen Snippet - Big payout the result of an employer’s failure to make reasonable adjustments

In a recent case in the Federal Circuit Court an employer; Corrective Services New South Wales, was ordered to pay a former probation and parole officer employed by it the sum of $180,000 plus interest as a result of discriminatory treatment of her.  The employee suffered from Crohn’s Disease and took sick leave on a number of occasions.

Sladen Snippet – Bill to extend application of unfair contract provisions to small business contracts

Sladen Snippet – Bill to extend application of unfair contract provisions to small business contracts

The unfair contract provisions under the Australian Consumer Law (ACL) provide that terms in “standard form” contracts that are “unfair” under the legislation can be declared void. The provisions apply to contracts for the supply of goods or services or a sale or grant of an interest in land for personal, domestic or household use or consumption. There are similar provisions in the Australian Securities and Investments Commission Act 2001  applying to the sale of financial products and services.

Sladen Snippet – The overuse and misuse of the “without prejudice” privilege

Sladen Snippet – The overuse and misuse of the “without prejudice” privilege

The phrase “without prejudice” is commonly overused and misunderstood. When using the phrase, people should be mindful that simply labelling communication “without prejudice” does not automatically guarantee the privilege. Rather, the surrounding circumstances and the content of the communication will be taken into consideration when determining whether the privilege applies.

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Sladen Snippet – New financial year – new employment pay rates and thresholds

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Sladen Snippet – New financial year – new employment pay rates and thresholds

The 2015/16 new financial year commencing this Wednesday will also bring into effect new minimum pay rates and thresholds.

According to the Fair Work Commission (FWC), from 1 July 2015, the following changes will take effect

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Sladen Snippet – “Look through” Bill released for limited recourse borrowing arrangements

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Sladen Snippet – “Look through” Bill released for limited recourse borrowing arrangements

The Government has released the Tax and Superannuation Laws Amendment (2015 Measures No. 2) Bill 2015 which, if passed in its current form, will provide for “look through” tax treatment for trusts set up for limited recourse borrowing arrangements (LRBA).

In effect, this means that, from a tax law perspective (except for certain limited exceptions), the asset of the LRBA trust will be deemed to be held by the super fund and the actions of the trustee of the LRBA trust in relation to the asset will be deemed to be the actions of the trustee of the super fund. This will reduce adverse tax consequences (eg capital gains tax on collapsing the trust, losses being trapped in the trust and difficulties of passing franking credits) and result in a reduction to tax administration (eg the trust will not require a TFN or be required to prepare a tax return). It also means that, from a tax law perspective, super funds no longer need a bare trust for a LRBA in order to achieve a look through approach.

Director’s breach of fiduciary duties results in a clawback of super contributions

Director’s breach of fiduciary duties results in a clawback of super contributions

In April 2015, an article written by Sladen Legal's Phil Broderick and Melissa Brazzale, was published in the Tax Institute’s Journal, Taxation in Australia.

This article addresses the need for directors of corporate trustees to beware, as breaches of their fiduciary duties can result in amounts taken out of the trust, including super contributions, being clawed back.

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Sladen Snippet – The Segelov decision: trustee not under a duty to notify discretionary objects of their entitlements

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Sladen Snippet – The Segelov decision: trustee not under a duty to notify discretionary objects of their entitlements

The New South Wales Court of Appeal adopted a traditional and technical approach to the interpretation of the terms of a trust deed when dismissing an appeal in the decision in Segelov v Ernst & Young Services Pty Ltd.

Sladen snippet - Turning 55 in 2015/16? You can’t access your super until you turn 56

Sladen snippet - Turning 55 in 2015/16? You can’t access your super until you turn 56

For super purposes, turning 55 has traditionally been the year in which you start to access your benefits (for example under a transition to retirement income stream (TRIS)). However, with the auto-rise of the preservation age coming into effect, as of 1 July 2015, persons turning 55 in the 2015/16 year will have to wait until they turn 56 (ie in the 2016/17 year).

Sladen Legal presents at the Tax Institute's Trusts & Estates Forum

Sladen Legal presents at the Tax Institute's Trusts & Estates Forum

The attached presentation was delivered by Sladen Legal’s Rob Jeremiah and Phil Broderick at the Tax Institute’s Trusts & Estates Club on 17 June, 2015.

In this presentation, Rob discussed “Beneficial interests” in and “beneficial ownership” of trust property – trustees, trusts and beneficiaries, while Phil addressed issues about Superannuation and insurance – the good, the bad and the ugly.

Sladen Snippet - SMSF trust deeds must be QROPS compliant to receive UK pension transfers

Sladen Snippet - SMSF trust deeds must be QROPS compliant to receive UK pension transfers

Newly introduced UK regulations impose additional conditions on SMSFs that are registered, or will be registered as Qualifying Overseas Pension Scheme (QROPS). The new regulations broadly require that in order to be treated as, or continue to be treated as, a QROPS, the relevant SMSF’s deed must now contain provisions that prevents members from accessing benefits prior to age 55, unless they retire as a result of ill health under the UK laws.

The importance of dealing with statutory demands in a timely manner

The importance of dealing with statutory demands in a timely manner

When served with a statutory demand a company has 21 days to pay the debt, negotiate an outcome or apply to have the statutory demand set aside. Upon the expiration of 21 days the company is deemed insolvent and an application can be made to wind it up. 

Following this expiration date, the company cannot make an application to set aside the statutory demand, even if it has grounds to do so. Instead, it has to oppose the winding up application if it is to avoid being wound up. The most common ground for setting aside a statutory demand is that the debt is in dispute.

Do I own the trade mark if I buy the business?

Do I own the trade mark if I buy the business?

Use our online trade mark search tools to ensure it is not already registered.

If you are purchasing a business and want to use the existing brand, it’s important to ensure the brand is available for use and sale. It may not automatically come with the acquisition of
business assets.

This happened to poor Mr Carroll who purchased a pallet racking, shelving and storage solutions business from the Griffiths in Queensland in 2009, called Rack’N Stack*. Unbeknown to Mr Carroll, the Griffiths had already sold the Rack’N Stack business to someone else in 2008. Under the original sale, the Griffiths retained a limited licence to trade in an agreed geographical location. Mr Carroll was unaware of this until he tried to register the trade mark Rack’N Stack and found out that the purchaser of the business in 2008 had already registered it as a trade mark in Australia. This registration was cited against Mr Carroll’s application, and the owners also opposed the registration of Mr Carroll’s Rack’N Stack trade mark.

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Sladen Snippet - Minimum wage to rise 2.5%

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Sladen Snippet - Minimum wage to rise 2.5%

Yesterday, the Fair Work Commission handed down its Annual Wage Review decision.

From 1 July 2015, the national minimum wage will be increased by 2.5% (equating to an increase of $16 per week) and the new weekly minimum wage will be $656.90 (or $17.29 an hour) .

Modern award rates will also be increased by 2.5%  from 1 July.

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Sladen Snippet – Safe Work Health and Safety Statistics

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Sladen Snippet – Safe Work Health and Safety Statistics

Safe Work Australia has released key statistics on work-related injuries, diseases and fatalities. While the report shows a downward trend in both worker fatalities and in the rates of serious injury over the period 2003 to 2013, the total number of serious workers’ compensation claims (117,815 in 2012-13) and worker fatalities (196 in 2013) are significant.

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Facebook gives users more control with 'Legacy Contacts'

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Facebook gives users more control with 'Legacy Contacts'

Digitally stored information, including records, communications, photographs and other details which are held with various internet-based organisations can be difficult to deal with when the account holder dies. Many organisations are grappling with methods of dealing with the problem or simply ignoring it.

Facebook is giving users more control over their social networking afterlives with a “Legacy Contact” setting. This allows account holders to have their account deleted after they die or alternatively appoint a Legacy Contact to manage the account.

Legal matters: Schools and data privacy

Legal matters: Schools and data privacy

Schools collect and receive personal and sensitive information on a daily basis. What are the legal requirements for managing and using this data?

Much of the personal and sensitive information collected by schools is, of course, essential to their day-to-day running.

This information can relate to students, parents and guardians, job applicants, staff members, volunteers and contractors, and others who come into contact with the school.

Following significant changes to the Privacy Act 1988 (Act), which took effect from 12 March 2014, schools need to consider how they use and manage such information, so as to avoid significant penalties.

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Sladen Snippet – what is a unit trust for the public trading trust rules?

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Sladen Snippet – what is a unit trust for the public trading trust rules?

The Federal Court, in the decision of Elecnet (Aust) Pty Ltd v FCOT, has ruled that a trust established to pay out redundancy benefits for employees of the electricity industry was a unit trust for the purposes of the public trading trust rules.  This was held notwithstanding that the employees’ interest in the trust is not unitised but rather operates in a way that is akin to a superannuation fund. In coming to this conclusion, the Court found, for the purposes of the public trading trust rules, that the employees have a beneficial interest in the property of the trust.