Legal news
In the case of Williams v Williams, the Supreme Court of Queensland has determined that a binding death benefit nomination (BDBN) was not binding on the basis that it was not provided to the trustees of the applicable self managed superannuation fund (SMSF).
One of the anomalies of the super guarantee system is the inability of employees to force employers to make contributions payable under the system. That could soon change, with proposed changes to the Fair Work Act 2009 which would allow employees to force employers to make contributions to avoid the liability to pay the super contribution charge under the Superannuation Guarantee Charge Act 1992 (SG Act)
The Government has announced that, from 1 July 2026, employers will obligated to make super contributions at the same time they pay their employee’s their salary and wages (eg weekly, fortnightly or monthly). Currently, super must be made within 28 days of the end of each quarter.
The Full Federal Court has confirmed in Jamsek v ZG Operations Australia Pty Ltd (No 3) [2023] FCAFC 48 that a truck driver partnership was not eligible for super guarantee contributions. The decision is an important decision in relation the application to super guarantee in relation to contractors and, in particular, partnerships and other entities.
Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51
Background facts
The Respondent (OS)[1] — BHP’s in–house labour hire provider — operates the Daunia Mine near Moranbah in central Queensland. OS employs shiftworkers on a 24/7 basis to work in the Daunia Mine.
OS rostered shiftworkers on Christmas and Boxing Day 2019 as part of standard operations at the Daunia Mine
An application was brought by the CFMMEU contending that a routine requirement for employees to work during public holidays (as rostered) contravened ss 44 and 114 of the Fair Work Act 2009 (FW Act). The CFMMEU argued that a requirement for workers to perform work during public holidays by way of routine rostering enlivened section 114 of the FW Act such that employers would need to first reasonably request employees to work on public holidays. At first instance the Federal Court held that a routine requirement to work on public holidays was not in contravention of section 114 of the FW Act. The CFMMEU subsequently appealed to the Full Court.
OS’s standard form contracts said that the expectation to work on public holidays was incorporated into existing remuneration. Relevant contractual provisions stipulated that employees “may be required to work on public holidays”.
Key Issues to be decided
The Full Court considered whether OS’s engagement of shiftworkers on 24/7, 365-day rosters enlivened section 114 of the FW Act in circumstances where employees were routinely required to work on public holidays (and specifically on Christmas Day and Boxing Day in 2019).
The CFMMEU argued that a contravention of s 114(2) would occur where an employer imposes a requirement for employees to work on public holidays without making any request at all. OS argued that its requirement for shiftworkers to work on Christmas and Boxing day 2019 was a reasonable request within the meaning of section 114(2) of the FW Act.
Determination
The Full Court held that OS had contravened section 114(2) because it required the employees to work on Christmas Day and Boxing Day in 2019 without affording an opportunity to reasonably challenge or refuse the requirement. The evidence showed that OS required (and did not request) shiftworkers to work on the relevant public holidays. There was an assumption that employees rostered to work on public holidays would work unless they applied for leave and it was granted. OS did not communicate to employees that they had any right under s 114 or otherwise to refuse to work on public holidays.
The Full Court cited the previous decision of Shop, Distributive & Allied Employees Association v Woolworths Ltd [2012] FCA 540 in which Barker J suggested that a request in the context of section 114(1) included “leaving room for negotiation and discussion.” The Full Court further considered that section 114(2) required employers to provide employees with an opportunity to refuse the request on reasonable grounds.
The Full Court said:
[38] The intended mischief the provision confronts is the inherent power imbalance that exists between employers and employees. By virtue of this imbalance, employees will often feel compelled, and not understand, that they have the capacity to refuse a request that is unreasonable or where their own refusal is reasonable. The requirement that there be a “request” rather than a unilateral command, prompts the capacity for discussion, negotiation and a refusal.
The Full Court has clarified that s 114(2) will be contravened if there is no opportunity afforded to refuse an unreasonable request
Implications for Employers
Ask employees: Employees cannot unreasonably refuse a request to work on a public holiday. Employers can robustly respond to refusal communications in accordance with business / operational requirements. However, it is important to set expectations upfront.
Provide an opportunity to challenge: Employers must at least provide employees who are rostered to work on a public holiday with an opportunity to challenge the applicable roster if it would be unreasonable to work on a particular public holiday. This requires making employees aware that they can reasonably refuse a request to work on a public holiday.
Take action: Employers who employ shiftworkers on 24/7 rostering arrangements should take action as follows:
implement policies, procedures and processes to assess and respond to employee refusals to work on public holidays; and
ensure that employees who are rostered to work on public holidays confirm that they have agreed to work (ideally in writing) on the relevant public holiday.
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The New South Wales Court of Appeal (NSWCA) in Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 has dismissed a medical practice’s appeal and upheld the New South Wales Civil and Administrative Tribunal Appeal Panel’s (Appeal Panel) decision that payments from a medical practice to doctors, who worked at the practice, are subject to payroll tax.
This year seven of Sladen Legal’s lawyers have been recognised in the 2024 edition of The Best Lawyers® in Australia. Daniel Smedley, Bernie O’Sullivan, Phil Broderick, Rob Jeremiah, Neil Brydges, Victor Di Felice, and Edward Skilton. The list of exceptional legal professionals was announced on 20 April 2023.
The general requirement of an self managed superannuation fund (SMSF) is that all members must be trustees of the SMSF or directors of the SMSF corporate trustee. As such, putting aside disputes between trustees/directors, generally members are making the decisions about their benefits and the assets of the SMSF.
Treasury has released an information sheet on how the new “30% tax rate” for super balances over $3 million will work.
According to the ATO’s March 2022 statistical data (see here), the total value of crypto assets held by SMSFs was $220 million. That is less than 0.03% of all SMSF investments. The number of SMSFs that held crypto assets was 3,345 SMSFs being 0.6% of SMSFs.
On 21 February 2023 Revenue NSW announced that it has been determined that NSW surcharge purchaser duty and surcharge land tax (Surcharge Provisions) are inconsistent with international tax treaties entered into by the Australian Federal Government with New Zealand, Finland, Germany, and South Africa (Treaty Countries).
The introduction of windfall gains tax under the Windfall Gains Tax and State Taxation and Other Acts Further Amendment Act 2021 (Vic) (Act) has been highly controversial from the outset due to real concerns as to whether the tax truly captures a purported “windfall” by landowners who rezone land in Victoria and its punitive tax rate of 50% of such gains.
