Marriage revokes your will – how is marriage defined?
Federal Court finding distinguishes employment class actions from commercial class actions
Secure Jobs, Better Pay Bill: Key Changes at a Glance
The Secure Jobs, Better Pay Bill (Bill) passed both Houses of Parliament and received Royal Assent in early December 2022.
The Bill amends the Fair Work Act 2009 (Cth) (FW Act) to make changes across a wide range of areas including:
prohibiting sexual harassment in connection with work and introducing a sexual harassment dispute resolution process;
amendments to bargaining dispute provisions, including the introduction of intractable bargaining declarations and changes to workplace determinations;
industrial action changes including in relation to protected industrial action;
changes to enterprise agreement termination;
simplifying the initiation of bargaining;
abolishing the ROC and ABCC;
sunsetting zombie agreements;
introducing expert panels;
changes to the enterprise agreement approval process and streamlining the ‘better off overall test’;
significant changes to multi-employer bargaining;
prohibiting pay secrecy clauses in employment contracts and requiring advertising to reflect accurate and lawful pay;
changing the objects of the FW Act and increasing the small claims jurisdiction to $100,000;
introducing a right to make flexible working requests and an associated dispute resolution process; and
prohibiting fixed term employment contracts unless certain exceptions apply.
Sladen Legal has developed an overview of the key changes to the FW Act, including information about the timing of commencement of the changes. Sladen Legal’s summary of the key changes and timing can be accessed at the link below.
Jasmine O'Brien
Principal
M +61 401 926 108 | T +61 3 9611 0149
E: jobrien@sladen.com.au
Katherine Dennis
Principal Lawyer
M +61 407 013 010 | T +61 3 9611 0151
E: kdennis@sladen.com.au
Stephan Hill
Lawyer
T +61 9611 0165
E shill@sladen.com.au
Costly Lesson for Employee’s Conduct – Vicarious Liability and Sexual Harassment
Primary production land tax exemption denied for landowner that entered into a property development agreement
In the recent Victorian Civil and Administrative Tribunal (Tribunal) decision in Lavender Rain Pty Ltd v Commissioner of State Revenue (Review and Regulation) [2022] VCAT 1264 (Lavender Rain) the primary production land tax exemption for urban zoned land was denied on the basis that the land owning company operated a number of businesses, including the entering into a property development agreement.
Super guarantee Series - Part 4: How is super guarantee and the super guarantee charge calculated?
In Part 1 of our Super Guarantee article series, we discussed the background to the super guarantee regime and an overview of how the regime operates. In Part 2, we looked at who will be covered by the super guarantee regime, and in Part 3 we specifically looked at when this will include certain contractors.
FWC grants out-of-time application delayed because of domestic violence
The Fair Work Commission (FWC) recently held that a general protections application submitted seven minutes late warranted an extension of time because of exceptional circumstances.
Bosanac: presumption of resulting trust v presumption of advancement: High Court tells both to sit down
The High Court in Bosanac v Commissioner of Taxation [2022] HCA 34 culminated a protracted debate on whether to apply the presumption of resulting trust or presumption of advancement in the context of a matrimonial home.
Flawed investigation results in reinstatement of training instructor who stared at colleague’s chest
Super guarantee Series - Part 3: When do super contributions need to be made on behalf of contractors?
As discussed under Part 2 of this super guarantee article series, under the super guarantee system, super contributions must be made on behalf of “employees” as that term is defined under the Superannuation Guarantee (Administration) Act 1992 (SG Act).
Sladen Legal’s Tax Practice Recognised In Doyles Guide Victoria 2022
Tax-Effective Succession Of A Family Trust
Section 100A: if you want BBlood, you’ve got it: 100A and capital amounts
On 19 September 2022, Justice Thawley of the Federal Court handed down his decision in BBlood Enterprises Pty Ltd v FCT [2022] FCA 1112 (BBlood), the most recent decision on section 100A of the Income Tax Assessment Act 1936. The Australian Taxation Office (ATO) was successful in arguing that section 100A applied.
Developments on the positive duty to prevent sexual harassment
The Federal Government has taken further steps to implement outstanding recommendations contained in the Respect@Work Report (the Report), which was initially published by the Sex Discrimination Commissioner (the Commissioner) in January 2020.
Super guarantee Series - Part 2: Who must contributions be made for – “employees” and “deemed employees”
Under the super guarantee system, super contributions are made on behalf of “employees”.
Section 12(1) of the Superannuation Guarantee (Administration) Act 1992 (SG Act) provides that “employees” for the purposes of the SG Act are defined under their ordinary meaning. That is, the meaning of that term at common law.
Hasty termination lands employer in hot water
Petroulis – Renting principal place of residence invalidates land tax exemption - Commissioner has no discretion
The recent Victorian Civil and Administrative Tribunal’s (Tribunal) decision in Petroulis v Commissioner of State Revenue [2022] VCAT 1054 dismissed the taxpayers’ request for review of the land tax assessments issued by the Commissioner.
Can Part IVA apply to trustee discretions? Yes, according to the Federal Court
The recent Federal Court decision of Minerva Financial Group Pty Ltd v Commissioner of Taxation [2022] FCA 1092 (Minerva) signifies that the Federal Commissioner of Taxation (Commissioner) can successfully scrutinise a trustee’s discretion under the general anti-avoidance provisions (Part IVA).
Sladen snippet - AAT upholds super guarantee charge assessments and refuses further remission of penalties
In the recent decision of Signium Pty Limited and FCT [2022] AATA 2824, the Administrative Appeals Tribunal (Tribunal) upheld super guarantee (SG) assessments issued by the Commissioner of Taxation (Commissioner) and refused to remit Part 7 penalties further.
The taxpayer operates a small pig farming business. The business is run by a general manager, and at relevant times it employed two or three people.
The ATO conducted an audit of the taxpayer’s SG obligations and issued 16 SG charge assessments for quarters ending 30 September 2013 to 31 March 2017. The Commissioner also issued a Part 7 penalty assessment of 200% of the SG charge (Part 7 penalties are automatically incurred under Part 7 of the Superannuation Guarantee (Administration) Act 1992 (SG Act) for failure to lodge SG charge statements within the relevant timeframe).
The taxpayer disagreed with the ATO’s calculation of the shortfall amounts on the SG charge assessments. However, the Tribunal accepted the ATO’s calculations as they were more thorough than those provided by the taxpayer. The taxpayer asked the Tribunal to remit the shortfall interest component of the SG charge, but the Tribunal declined, noting that the Commissioner has no discretion under the SG Act to remit the shortfall interest component.
The Part 7 penalties were remitted to 35% during the review process, and the Commissioner agreed that a further 25% remission was appropriate. The taxpayer argued that the penalties should be reduced further due to various factors including the general manager’s age, his health conditions, the impact of COVID-19, drought in 2018-2019, bushfires in 2019 and flood in 2021, all of which put the business under considerable pressure. However these factors all arose after the relevant quarters which were the subject of the audit, and therefore did not impact on the taxpayer’s ability to comply with its SG obligations at the relevant time. Accordingly, the Tribunal was not persuaded to remit the Part 7 penalties further.
Key takeaways from this decision:
While a taxpayer should confirm the accuracy of the calculations making up an SG charge assessment, and cross-reference these with their own records, a taxpayer cannot argue for remission of the shortfall interest component, as the Commissioner has no discretion in this regard;
Part 7 penalties are incurred automatically under the SG Act at 200% of the SG charge for late or non-lodgement of SG charge statements. The Commissioner has discretion to remit Part 7 penalties with regard to various mitigating factors. Where the taxpayer is arguing that these factors impacted on the taxpayer’s ability to comply with its SG obligations, it is key to show a nexus between these factors and the quarters in question.
Phil Broderick
Principal
M +61 419 512 801 | T +61 3 9611 0163
E: pbroderick@sladen.com.au
Philippa Briglia
Senior Associate
T +61 3 9611 0173
E pbriglia@sladen.com.au
Jan Oh
Graduate Lawyer
T +61 3 9611 0158
E joh@sladen.com.au