NSW foreign surcharges – international tax treaties update – more countries excluded from the regime
In our previous article, we discuss Revenue NSW’s announcement that it has determined that NSW surcharge purchaser duty and surcharge land tax are inconsistent with international tax treaties entered into by the Australian Federal Government and certain countries (Treaty Countries).
On 29 May 2023, Revenue NSW has updated its list of Treaty Countries to now include India, Japan, Norway and Switzerland.
Sladen snippet – JMC – right to delegate means no super guarantee
The Full Federal Court, in the decision of JMC Pty Ltd v Commissioner of Taxation [2023] FCAFC 76, has effectively found that a right to delegate (unless such right is a sham) means a person will be a contractor (and not an employee) and won’t be engaged principally for their labour.
Victorian State Budget 2023/24 – The good, the bad and the ugly
The Victorian State Budget for the 2023-2024 year (Budget) brings with it a range of state taxation measures aimed at reigning in the Victorian Government’s surging debt, currently projected at $135.4 billion for the 2023-2024 tax year and set to grow to an “eye-watering” $171.4 billion in the 2026-2027
Managing Invalid Distributions
Sladen Snippet – Williams Part 2 - another SMSF trustee bites the dust
As seen in Part 1 of our article on the case of Williams v Williams, this is the latest of a long line of cases that have found that a binding death benefit nomination (BDBN) was not binding. However, the case also is an important decision in relation to when the Court will remove an SMSF trustee.
Sladen Snippet – Williams Part 1 - another BDBN bites the dust
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).
Sladen snippet – employees to be given right to enforce super contributions
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)
Sladen Snippet - Super to be paid on an employee’s payday
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.
2023 VIC Tax Forum Family trust elections, trust losses, and family change
Sladen Snippet – ATO issues a draft legislative instrument to ensue directors (and politicians) can make personal deductible contributions
Sladen Legal Property Team Recognised in Doyles Guide Victoria 2023
Sladen Snippet - Jamsek – truck driver partnerships not eligible for super guarantee
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.
Challenge to routine requirements for shiftworkers to work on public holidays upheld
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.
Click on the link below to download our full summary.
Thomas & Naaz – Payments To Doctors Subject To Payroll Tax
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.
Sladen Legal Lawyers Recognised as Best Lawyers® Award Recipients
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 Deceased Estate: Who Pays The Tax
Bosanac: presumption of advancement
Sick Pay Guarantee scheme: where to next?
Death And Incapacity And The SMSF: Who Steps In To Call The Shots?
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.