bailiwick

Supporting landmark conservation outcomes across Western Australia

Thu, 19 Feb 2026 03:42:26 GMT

Bailiwick Legal has been honoured to support Forever Wild over the past few years as they delivered one of the most significant conservation land acquisition programs undertaken in Western Australia.

Our team assisted Forever Wild with the strategic purchase of four pastoral stations, Narndee , Boodanoo , Meeline and Challa , transactions that now connect three State Reserves and protect more than 12,000 square kilometres of land. To put that scale into perspective, the combined area is approximately five times the size of the ACT and nearly one-fifth the size of Tasmania .

Navigating complexity at scale

These were not straightforward property transactions. Each acquisition involved:

Multiple pastoral leases
Layered regulatory and approval pathways
Significant operational and on-ground assets
Numerous stakeholders across government, industry and land management

Our role was to guide Forever Wild through this complexity with clarity, precision and confidence, ensuring each transaction progressed efficiently while managing risk and safeguarding long-term objectives.

“ Forever Wild is creating a world-leading model for nature funding that demonstrates we can manage viable, working pastoral stations whilst also restoring and protecting local ecological flora and fauna, and engaging and supporting Indigenous people and local communities. Complex & challenging, but this initiative could literally change the world .” Jessica Brunner - Director, Bailiwick Legal

A growing and evolving legal landscape

Large-scale conservation acquisitions sit within an emerging and increasingly complex legal field , intersecting land tenure, pastoral regulation, environmental frameworks and commercial considerations. These matters demand a deep understanding of both the legal mechanics and the practical realities of operating in regional and remote Australia.

Our team’s experience in agribusiness, pastoral land transactions and regulatory approvals allowed us to support Forever Wild at every stage, from strategic structuring through to completion.

Proud to support leadership in nature finance

Forever Wild is widely recognised as an industry leader and a steadfast advocate for nature finance initiatives , helping pave the way for greater accessibility and innovation in conservation funding and land stewardship.

We are proud to have contributed our relationships, expertise and practical legal insight to help Forever Wild achieve its vision, and to have played a role, however small, in shaping a groundbreaking future for conservation in Australia.

At Bailiwick Legal, we value the opportunity to work alongside organisations that are thinking long-term, acting boldly, and creating outcomes that extend well beyond the transaction itself.

For assistance with all of your agribusiness needs, contact Bailiwick Legal on 08 9321 5451 or email office@bailiwicklegal.com.au

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au

The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.

Bailiwick Legal Advises on Landmark Acquisition of Rawlinna Station by Consolidated Pastoral Company

Mon, 05 Jan 2026 09:00:34 GMT

Bailiwick Legal is proud to have acted for Consolidated Pastoral Company (CPC) in its successful acquisition of Rawlinna Station , Australia’s largest sheep station, located on the remote Nullarbor Plain in Western Australia.

Spanning over 1 million hectares and running approximately 30,000 sheep , Rawlinna is an iconic pastoral asset with a rich legacy, having been held by the MacLachlan family’s Jumbuck Pastoral Company since its establishment in 1962. The sale marks the first change of ownership in over six decades and was finalised following formal approval from the Western Australian Government for the transfer of the pastoral leases.

This transaction involved navigating:

The transfer of three separate pastoral leases
Coordination across multiple vendor entities
Consideration of livestock and operating assets
Fulfilment of regulatory and compliance requirements, including WA lease approval processes

Bailiwick Legal is a boutique agricultural and regional law firm , proudly based in Perth and Bridgetown, Western Australia. Our role in this acquisition demonstrates that deep sector knowledge, local insight, and personalised legal support are crucial for agribusiness clients managing complex, high-value transactions.

Our team, led by our regionally-based solicitor, Matilda Lloyd, provided end-to-end legal and strategic support, including:

Due diligence on land tenure and operating assets
Contract negotiation and preparation
Advice on regulatory approvals and compliance
Strategic coordination with CPC’s internal and external stakeholders to ensure a smooth and timely settlement

We are honoured to have supported CPC in this milestone acquisition and look forward to watching

Rawlinna’s next chapter unfolds.

At Bailiwick Legal, we believe that regional expertise, deep industry knowledge, and relationship-based service remain essential to agribusiness success, no matter the scale.

Congratulations to all parties involved, including the MacLachlan family, whose stewardship of Rawlinna leaves a lasting legacy in Australian agriculture.

– The Bailiwick Legal Team

Working alongside agribusinesses to grow, transition, and thrive .

For assistance with all of your agribusiness needs, contact Bailiwick Legal on 08 9321 5451 or email office@bailiwicklegal.com.au

By Matilda Lloyd (Associate)

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au

Bailiwick Legal newsletter June 2024 edition

Wed, 19 Jun 2024 04:48:04 GMT

Our June 2024 newsletter is now available. Have a read to find out what we have been up to in the first half of the year!

ISCC Spraying decision

Tue, 14 May 2024 07:33:16 GMT

The International Sustainability and Carbon Certification (ISCC) System has come to the attention of many Western Australian farmers recently, as the scheme has changed one of its policies regarding aerial spraying.

What is the ISCC?

The ISCC is one of the world’s largest voluntary sustainability certification schemes enabling participants to demonstrate they are producing materials in a sustainable way that meets or exceeds community expectations. In Australia it is widely used in the canola industry, enabling Australian canola growers to access the European biofuel market. CBH Marketing and Trading holds certification for the ISCC EU and ISCC PLUS programs, that cover canola, barley, oats, wheat and lupin, allowing WA growers to participate in both programs.

Participating in the ISCC program can result in a premium on grain, however participants are subject to more stringent measures to satisfy sustainability accreditation requirements.

Recent decision on aerial spraying

ISCC Principle 2.6.2 prevents aerial spraying from taking place within 500 metres of a body of water. CBH has successfully lobbied for an exemption to this Principle, for farm dams and salt lakes of low ecological value. As part of its lobbying, CBH provided expert reports to the ISCC on the hydrology and ecology of WA farm systems.

For farmers who are signed up to the ISCC program, this removes an obstacle during the season for weed management. The Principle does still require a 500 metre buffer for other bodies of water, including freshwater lakes, rivers, ponds or creeks.

However, for those who farm yabbies and marron, this change may not be welcome. Marron and yabby farmers have noticed impacts on their populations where aerial spraying has taken place close to their properties, and aerial spraying can unintentionally damage natural vegetation, including young and old growth trees.

For growers, it’s always prudent to follow best practice guidelines for aerial spraying to avoid spray drift – including monitoring weather conditions and the effect of water added to the chemical.

For some farmers, this decision may prompt an examination of whether signing up to the ISCC program might be best for their business. In this circumstance, it is important to weigh up the potential benefits of the program compared to the sustainability accreditation requirements.

For others, this decision is a timely reminder to stay up to date with best practice guidelines when it comes to spraying, particularly during the seeding season.

For assistance with all of your agribusiness needs, contact Bailiwick Legal on 08 9321 5451 or email office@bailiwicklegal.com.au

By Ciara Nalty (Solicitor)

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au

Annual Wage Review on the horizon

Tue, 14 May 2024 07:27:05 GMT

How does the Annual Wage Review affect workers and small business owners? Each year, the Fair Work Commission reviews the National Minimum Wage and the minimum wages set out in awards. Cost of living and inflation are front of mind for both employers and employees, and this year’s Annual Wage Review is likely to see an increase in the minimum wage and award rates.

The Annual Wage Review is conducted by an Expert Panel, which takes submissions from interested groups, including the Federal Government, unions, and business lobby groups. The Federal Government’s submission to the Wage Review this year called for an increase to the minimum wage, though not specifying an amount. The Australian Chamber of Commerce and Industry has advocated for an increase of 2 per cent, at most.

The announcement will likely take place in early June and any increase to the national minimum wage will take effect in the first full pay period on or after 1 July 2024. Failure to pay employees at least the minimum rate that is set out in an applicable award can result in penalties, including requirements for back pay and fines.

The Fair Work Ombudsman uses its enforcement powers to issue compliance notices to employers, and recovered $14.8 million in unpaid wages in 2022-23. Small and medium businesses are subject to the same scrutiny as large businesses.

For business owners, this is a timely reminder to review employment agreements and payments to staff. You should be conscious of which awards cover your staff members, as award rates for each level increase commensurate with the national minimum wage increase.

It is also important to be aware of employee entitlements and set-offs, to ensure you are paying employees what they’re entitled to and avoiding future claims.

If you are not sure what award your employee is covered by, have a question about employment conditions or require any other assistance with employment and workplace matters contact Bailiwick Legal on 08 9321 5451 or email office@bailiwicklegal.com.au .

By Ciara Nalty (Solicitor)

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au

Bailiwick Legal newsletter March 2024 edition

Tue, 05 Mar 2024 06:35:44 GMT

Find out what we have been up to and recent events in our March 2024 newsletter .

Employers at risk of action over harassment

Tue, 20 Feb 2024 06:05:15 GMT

The Human Rights Commission may take action against employers who fail to actively eliminate sexual harassment, discrimination and victimisation in the workplace, as part of a positive duty reform.

While the reform itself was introduced under the Sex Discrimination Act in 2022, a change was put in place last December - and every employer, including those in the agricultural sector, is affected.

This change has provided the commission with new powers to investigate and enforce compliance with positive duty and investigate organisations or businesses where it "reasonably suspects" non-compliance.

What does this mean for shearing contractors, sheep producers and other primary producers?

Speaking at the WA Shearing Industry Association (WASIA) general meeting last month, Bailiwick Legal solicitor Matilda Lloyd said the enforcement power involved inquiries and investigations similar to WorkSafe.

She said a complaint did not have to be made for an inspector from the commission to visit and look over a workplace, and see if there is any kind of sexual harassment occurring.

"The commission looks at policies and procedures, and essentially you need to be able to demonstrate that you're compliant with this positive duty.

"When you think about it in the context of a shearing shed, it is the safety checklist you have in place for when people enter the shed.

"Those are the things you need to consider with sexual harassment as well."

Ms Lloyd said the commissioner never had the power to conduct an investigation before and, as such, practically how it was going to work was an unknown.

"We don't know whether they're going to be coming out and doing regular inspections, what those inspections are going to look like in terms of time or how thorough they are going to be, " sh e said.

"They need to be thought of the same way as a WorkSafe investigation, whereby it could happen at any point whether a complaint is made or not.

"Investigators will expect employers to show that they are actively trying to eliminate this form of unlawful conduct."

If an inquiry occurs, what will happen?

If an employer wasn't taking the correct measures to stop sexual harassment, discrimination and victimisation from occurring, they could be issued a compliance notice.

Ms Lloyd said if the notice wasn't adhered to and an inspector returned, they could apply to the Federal Court to have that positive duty enforced.

What is positive duty?

Ms Lloyd said a positive duty was a legal obligation on an employer or person conducting a business or undertaking to take reasonable and proportionate measures to eliminate unlawful behaviours in the context of work, workplaces and working relationships.

In the case of shearing contractors, sheep producers and other primary producers, she said that obligation was on the employer and applied to all staff, workers, contractors, customers and people entering, for example, a shearing shed.

She said the obligation was "very broad" and applied right across the board.

"Enforcing positive duty is pretty straightforward in terms of the employer, but when we look at the other parties involved it is extensive, " Ms Lloyd said.

"When we are talking about sexual harassment in the workplace we are talking in the shed and in a vehicle on the way to work or another shed.

"It is also offsite, so if you are having work drinks at the quarters or wherever afterwards - that's also a workplace within the definitions of the act.

"The obligation applies across the board in all of these circumstances.

"And also applies to visitors, so if you have farmers and they bring their wives, it is anyone coming into that shed or environment."

In the context of positive duty, what do contractors need to do?

Firstly, employers need to understand what sexual harassment, sex-based harassment, discrimination and victimisation is.

Ms Lloyd said employers were responsible for leading their team, so it was important to understand what the laws were and how they affected not only them, but their employees.

"When we talk about sexual harassment we talk about unwelcome conduct that is of a sexual nature or requests for sexual favours, touching, requesting dates and so forth," she said.

"Whereas sex-based harassment is harassment that is targeted at a particular sex.

"This could be making sexist comments about a woman because she's a woman or making sexist comments about a man because he's a man. "Then victimisation is about targeting someone because they've made a complaint."

Ms Lloyd said a conversation then needed to be had to educate employees, whether that be face-to-face, by Whatsapp or having it displayed in the shed. She said there were resources and guidelines available through the Human Rights Commission, which helped with this.

"Have that conversation - as an employer understand what sexual harassment is but then talk to your employees and be serious about educating your employees, " Ms Lloyd said.

"It is about actually having that conversation and then thinking about what material can be given to them.

"The whole point is to make it easy, so people understand.

"Then it goes into training and support - is there someone in your team people can talk to?"

The seven standards

The commission has released guidelines for complying with the positive duty under the Sex Discrimination Act 1984. The guidelines are centred around seven standards - leadership, culture, knowledge, risk management, support, reporting and response, and monitoring, evaluation and transparency. Examples of practical actions that organisations or businesses can take to meet each of the standards are set out in the guidelines.

Ms Lloyd said, as each business is different, it depended on how big a team was, what was going to be practical and cost-effective in the workplace. She said the commission would look at the different standards if there was an investigation or inquiry.

How often do employers need to talk to their team about this?

Ms Lloyd said it should be looked at similarly to safety or work related issues, whether that be a toolbox or regular meeting once a week or every couple of days. She said if a contractor was starting a new job or visiting a place they hadn't been to before, it was about having that conversation upon arrival.

"When everyone's preparing for their first break, sit down and have a chat about general safety as well, " Ms Lloyd said.

"That's the first step, and then follow it up a month later when you start a new shed.

"It is about consistently and actively taking measures to create a safe space.

"It seems obvious that once you've gone through your checklist you then talk to the people coming into that environment, who are your workers, and alert them to what you have found.

"Similarly, with positive duty, a checklist is proof that you are doing the right thing if you are audited."

Does insurance cover sexual discrimination cases?

Having insurance does not diminish positive duty, it just safeguards employers against potential damage and loss against their business if they are sued. Ms Lloyd said sexual discrimination cases, which travelled through the Federal Court, were not cheap and often have adverse outcomes from an award of damages perspective.

"If we talk about Work Health and Safety, as you know, that is a serious issue you have to take onboard and consider, " she said,

"And that's the way I think employers need to frame their conduct when talking about and implementing measures to prevent sexual harassment, discrimination and victimisation."

Is an employer covered if they have put everything in place, but those rules are still broken?

Ms Lloyd said an employer would be protected if they have been able to eliminate as much as they can with the resources available to them. She said it was important to remember sexual harassment and discrimination is unlawful conduct.

"In terms of positive duty, by taking all reasonable steps and measures given the resources available to you, you will be able to mount a solid defence against any claim.

"If you've done your duty positively and it can be demonstrated that you've exercised your role in appropriate fashion, then that will be solid defence."

For more information on the positive duty reform and seven standards, go to humanrights.gov.au

Bailiwick Legal newsletter December 2023 edition

Thu, 14 Dec 2023 06:34:10 GMT

See what's been happening and current topics of interest in our December 2023 newsletter .

Bailiwick Legal newsletter November 2023 edition

Wed, 01 Nov 2023 06:32:35 GMT

Check out what's been happening and topics of interest in our November 2023 newsletter .

Farm Weekly Contract Dramas

Mon, 11 Sep 2023 05:59:43 GMT

Farm Weekly - Advice to avoid contract dramas

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What’s Next for WA’s Aboriginal Cultural Heritage Legislation

Fri, 11 Aug 2023 05:41:11 GMT

On 1 July 2023 the Aboriginal Cultural Heritage Act 2021 (2021 Act) came into effect following five years of alleged stakeholder consultation and drafting. The new Act replaced the Aboriginal Heritage Act 1972 (1972 Act), which was deemed to be completely inadequate at providing recognition and protection for cultural heritage by the Joint Standing Committee on Northern Australia in A Way Forward, the Final report into the destruction of Indigenous heritage sites.

To improve these deficiencies the section 18 consent process under the 1972 Act was replaced with a four-tier management system for Aboriginal cultural heritage which required proponents to undertake a due diligence assessment prior to undertaking activities, including where ground was to be disturbed, for the purpose of determining whether there was any Aboriginal cultural heritage or risk of harm being caused to Aboriginal cultural heritage by those activities.

The four-tier system was also accompanied by a new definition of Aboriginal cultural heritage, a new Directory of information related to Aboriginal cultural heritage as well as harsher fines, stop activity orders, prohibition orders and remediation orders which were introduced as new compliance measures to prevent and remedy harm.

The objects of the 2021 Act were to recognise, protect, conserve, and preserve Aboriginal cultural heritage and to manage activities that may harm Aboriginal cultural heritage in a manner that provides clarity, confidence and certainty.

However, in the weeks up to and then following 1 July 2023, substantial concerns and uncertainty were raised about the 2021 Act (and Regulations) together with a good dose of misinformation and in particular the impact that the new regime would have on freehold landowners and proponents who wanted to undertake their usual and normal (farming) activities on blocks of land greater than 1100m2.

During this period Matilda Lloyd and Phil Brunner attended many seminars, in conjunction with WAFarmers, to explain to the agricultural industry and the broader community the new laws. We attended at WAFarmers Zone meetings and grower organised information sessions in Karridale, Busselton, Esperance, Katanning and Perth. Information was also provided in online workshops and information sessions for grower groups and agricultural consultants.

On 8 August 2023 the Premier, Roger Cook, announced that the 2021 Act (and Regulations) would be repealed and that the 1972 Act would be reintroduced with simple and effective amendments. The announcement is welcome news however the Government’s rhetoric is that even the 1972 Act applies to freehold farmland. There is more work to be done to exclude freehold (improved) farmland from the operation of the 1972 Act.

Currently the 2021 Act remains in force and will be repealed once the Bill for the amended 1972 Act is passed by both houses of Parliament.

Bailiwick Legal extends its thanks to WAFarmers and the PGA for their efforts over the last two months. We will continue to work with WAFarmers and farmers to navigate the amended 1972 Act and press for further changes to the Aboriginal cultural heritage laws in WA.

If you would like more information about Aboriginal cultural heritage or how these changes may affect you and your business, please contact Bailiwick Legal on (08) 9321 5451 or by email at office@bailiwicklegal.com.au .

By Matilda Lloyd (Solicitor)

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au

The Aboriginal Cultural Heritage Act 2021

Tue, 18 Jul 2023 02:44:31 GMT

On the 1 July 2023, the new Aboriginal Cultural Heritage Act 2021 (WA) came into force. The new Act makes extensive amendments to the existing Aboriginal Heritage Act 1972, including the introduction of the four-tier activity approval process, the due diligence assessment (DDA), and the Local Aboriginal Cultural Heritage Services (LACHS). Under the new legislation greater onus is placed on landowners and proponents in WA to undertake a DDA to identify Aboriginal Cultural Heritage (ACH) and to avoid and minimise any harm to ACH. Below is a summary of the key changes landowners and proponents should be aware of.

What is Aboriginal Cultural Heritage?

Aboriginal Cultural Heritage (ACH) means the tangible and intangible elements that are important to the Aboriginal people of the State. ACH includes an Aboriginal Place, an Aboriginal object, a cultural landscape and Aboriginal ancestral remains.

Waterways

Aboriginal Cultural Heritage may be present on, in or surrounding the waterways on your property. If a landowner or proponent intends to undertake ground disturbing activities that impact a waterway, then they will be required to undertake a due diligence assessment. For the purposes of the Act, Regulations and Guidelines, a waterway includes the following:

(a) a river, creek, brook or other naturally flowing stream of water, whether or not it flows permanently;

(b) a lake, salt lake, claypan, lagoon, marsh or swamp;

(d) an artificial waterway as defined in the Planning and Development Act 2005 section 4(1).

Activity Tiers

Under the Act, a four-tier approval process has been introduced for activities that may cause harm to ACH. The four-tier approval process is applicable to landowners and proponents, who are intending to carry out ground disturbing activities that may harm ACH. The four activities include exempt, tier 1, tier 2 and tier 3 activities.

Due Diligence Assessment

The landowners of exempt, tier 1, tier 2 and tier 3 activities will all be required to undertake a search of the ACH Directory to determine if there is ACH or a Protected Area registered on their land. Landowners and proponents wishing to undertake tier one, two or three activities will then be required to undertake a due diligence assessment to determine if their activities will cause a risk of harm to ACH.

ACH Directory

The Directory is a tool that will assist landowners and proponents with undertaking a DDA. The Directory contains prescribed information about ACH that is located throughout the State. This includes information about ACH previously recorded on the Register of Aboriginal Sites throughout the administration of the Aboriginal Heritage Act 1972, as well as records of new ACH as they are submitted.

LACHS

LACHS have been introduced under the new legislation to assist landowners and proponents during a DDA. A person or entity with comprehensive knowledge of the local Aboriginal community in an area, of the State, such as a native title representative body, can apply to be designated as the LACHS for that area. Once appointed a LACHS is responsible for providing advice to landowners and proponents about ACH, engaging with proponents and other local knowledge holders and facilitating and making ACH management plans, amongst other things. A proponent intending to carry out a Tier 2 or Tier 3 activity that is the subject of a Plan will be required to consult with the LACHS for their area.

Permits

If a tier 2 activity cannot be carried out so as to avoid harm to ACH, then the proponent must make an application to the ACH Council to obtain a Permit. Similarly, if a tier 3 activity cannot be carried out so as to avoid harm to ACH then the proponent will be required to develop an ACH Management Plan with each interested Aboriginal party.

Stop Activity and Prohibition Orders

If a landowner or proponent is carrying out an approved tier 2 or tier 3 activity and ACH is being harmed or there is an imminent risk of harm being caused to ACH then the Minister for Aboriginal Affairs, may give a stop activity order to a person to stop the activity. The Minister also has the power, upon the recommendation of the ACH Council, to give a prohibition order to a person carrying out a tier 2 or tier 3 activity, if harm or imminent risk of harm to ACH is caused by their activity. If ACH has been harmed the Minister may, upon the recommendation of the ACH Council, issue a remediation order.

If you would like more information about the Act or Aboriginal cultural heritage in general, please contact Bailiwick Legal on (08) 9321 5451 or by email at office@bailiwicklegal.com.au.

By Matilda Lloyd (Solicitor)

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

Bailiwick Legal newsletter May 2023 edition

Wed, 10 May 2023 02:56:17 GMT

Find out what's coming up, what's been happening and legal insights on current topics of interest in our May 2023 newsletter .

Farmers warned to look out for 'cowboys' when signing complex renewable energy contracts on farmland

Wed, 19 Apr 2023 10:38:53 GMT

Legal experts and renewable energy advocates have warned farmers to be wary of land speculators looking to cash in on the renewable energy boom.

Perth law firm Bailiwick Legal has provided advice to farmers regarding contracts for proposed renewable energy projects on freehold farming land from Yuna in the Mid West to Denmark in WA's Great Southern.

Firm director Philip Brunner said many of the documents were detailed, complex, and weighted for the benefit of the proponent.

"It feels like there are a lot of cowboys out there," he said.

" Like mining, you have a lot of juniors or fly-by-nighters that sort of try to tie up land and then on-sell that to a bigger entity — it feels a bit like that. "

Mr Brunner said a number of proponents did not have experience in the production of energy and he expected they would on-sell projects.

Bailiwick Legal director Philip Brunner is concerned farmers are being encouraged to sign unfavourable contracts.

The state government has committed to closing WA's last coal-fired power plant by 2029 in order to reduce carbon emissions.

Advocacy group Sustainable Energy Now said the lack of clarity around WA's proposed transition to renewables could be fuelling speculation in the industry.

Chairman Frasier Maywood said he was not surprised companies were interested in securing leases.

" I had heard of companies that were intending to do that very thing, to try and sign up farmers and then use that as a means of getting a project up or getting others to invest in a project, " Mr Maywood said.

" It could be a function of the uncertainty in the electricity market .

"I t doesn't surprise me because there are a lot of green projects being hyped at the moment and they will need an enormous amount of electricity, several times what the current [main electricity grid] is ."

The state's electricity transmission network, the South West Interconnected System (SWIS), operates as a contested network.

Approximately 30 per cent of the electricity fed into the SWIS is generated by renewable sources.

Mr Maywood said investment in transmission was needed so more renewable projects could be built.

" A wind farm in a particular location may not be able to export all of its power at any given time because of constraints in the network , " he said.

" For future projects, if the network is constrained then that represents a risk to investors and they may say: 'Well, we don't want to invest in WA because there is uncertainty on network access arrangements."

Lease agreement structures concerning

Of most concern to Mr Brunner were options to lease agreements that could be exercised anytime within five to seven years.

He said Bailiwick Legal had reviewed a number of option-for-lease documents that offered between $3,000 and $7,000 per megawatt of energy, per year, per turbine.

" Those are today's figures and if a proponent doesn't exercise an option for say seven years, the landholder has locked themself into today's values when in seven years' time those values may have even doubled or tripled given the way electricity prices have moved ," he said.

" Those rates are then locked in for the term of the project, which is usually somewhere between 15 and 25 years. "

Rather than sign leases or options to lease, Bailiwick Legal is encouraging land owners to grant a licence for proponents to test if the land is suitable for wind turbines.

Sustainable Energy Now said farmers should talk to farm advocacy groups and seek independent legal advice when considering proposals or work with other farmers to develop their own wind farms as proponents.

Wind Farm Projects and the Paperwork – get (the right) advice!

Thu, 30 Mar 2023 08:55:51 GMT

Recently we have seen a significant increase in wind farm proponents exploring locations and seeking to lock farmers into land access agreements and long term leases.

Recently we have seen a significant increase in wind farm proponents exploring locations and seeking to lock farmers into land access agreements and long term leases without any wind testing and before they have a real buyer for the power. The proponents will invariably offer landowners upfront payments, dangle large annual payments and even larger rent payments to entice farmers to sign the access and Lease agreements, thus ensuring that they have access to the land should they go ahead with the wind farm project in the future.

A wind farm lease typically allows for the construction of turbines and associated structures, including roads, fences, compounds and electric transformers. Easements are registered for underground cables, access tracks and the air space around the turbine blades. These structures can restrict use of the farm land and impact on farmer’s rights to deal with the land.

Contracts generally include an option agreement and lease. Basically, the developers want an option, to be exercised anytime within 5 years, to lease the land, essentially “land banking”. Locking the farmer in to a project that may or may not go ahead. The documents themselves are detailed, complex and weighted for the benefit of the proponent. In our experience, these documents require substantial amendments to protect the farmer’s interests.

Many wind farm proponents say agreements must be signed urgently. Where the proponent is seeking an option to be exercised at any time in the next 5 years, time is not really the issue. There are a raft of approvals required for the construction of a wind farm, including from the EPA, Planning Commission and potentially aboriginal cultural heritage and it is important that a lease captures these requirements.

Of importance also is that the farmer has a right to simply say no, I do not want turbines on my land.

At Bailiwick Legal, we have been dealing with wind farm projects for many years. Our director assisted the 16 plus farmers on the Collgar project back in 2009, the first and largest major wind farm in WA. Since then we have acted for farmers from Yuna to Denmark on:

(i) Option arrangements

(ii) Licence arrangements for wind testing masts

(iii) Lease arrangements for small wind farms of 2 to 3 turbines

(iv) Lease arrangements for overhead wire routes; and

(v) Easements for live wires from turbines to mine sites

We have also dealt with dozens of farm access agreements exploring for mining and gas.

If you have been approached by a wind farm proponent looking to negotiate an option and lease it is essential that you seek legal advice from a lawyer who has experience with these projects and who understands the complex set of laws and regulations and the long term impact that these projects have on your business and land to minimise the risks associated with these projects, both short and long term.

If you would like further information please contact us on (08) 9321 5451, by email at office@bailiwicklegal.com.au

Bailiwick Legal newsletter March 2023 edition

Fri, 10 Mar 2023 08:50:03 GMT

Our latest newsletter went out today. Check out what we have been up to and what is coming up in our March newsletter !

Phil has been selected as the exclusive Agribusiness Lawyer Network Member for Australia

admin@bailiwicklegal.com.au (Jessica Brunner) — Wed, 18 Jan 2023 08:23:46 GMT

The Lawyer Network is the next generation for finding a specialist lawyer for global business requirements. When choosing a law firm, most businesses and their directors will know qualified law firms in their domestic markets, but have little knowledge of the best firms outside of their own chosen jurisdiction. The Lawyer Network identifies practice area expertise and the jurisdiction Industry specialists across the globe to bring the best of each sector and location to the client. Bailiwick Legal is the only specialist Agribusiness law firm in Australia to have recieved this honor.

Bailiwick Legal newsletter December 2022 edition

Fri, 16 Dec 2022 08:12:28 GMT

We don't quite know how this year managed to escape so quickly! It has been a busy year for Bailiwick Legal - find out what we have been up to in our December newsletter - the latest and last one for 2022!

Harvest Labour

Wed, 23 Nov 2022 05:55:39 GMT

Don't be Casual When Employing Harvest Casuals

Harvest is a busy time for farmers and their workers. The lead up to harvest comes quickly and the essentials of recruitment and compliance can often be overlooked. However, it is important that you get appropriate contractual arrangements in place early and that you cover workers’ lawful entitlements to avoid future disputes.

Employees vs Contractors

During harvest, labour is often engaged on either an employment or subcontract basis. From a risk perspective, it is important to know the difference between the two because there can be severe penalties if you misclassify an employee as an independent contractor (or vice versa). When considering whether to employ or subcontract your harvest labour, the following factors should be considered:

are there fixed working hours;
who controls and directs the work;
who bears the commercial and financial risk;
is there an ongoing expectation of work;
what is the method of payment;
how is superannuation to be dealt with;
is tax pay-as-you-go (PAYG) or Goods and Services Tax (GST);
do you require pre-engagement medicals and or training; and
who covers insurance, workers compensation and public liability.

If you engage a person to provide their labour, establish set hours of work for them and maintain control over the work the person does, then it is likely that the person will be (at law) considered an employee and you will be required to meet certain minimum statutory entitlements, such as payment of a minimum wage, regulated hours of work, leave (casuals are entitled to leave in certain circumstances) and superannuation payments.

On the other hand, if you engage a person who uses their own harvester (or other similar equipment) and contracts with other farmers to get their crops off, then the person is likely to be (at law) considered a contractor.

It is important to also note that some statutory obligations, such as safety laws, are likely to apply regardless of whether the person is an employee or contractor whilst working on your property.

Written Agreements

Regardless of whether you engage employees or contractors, a written agreement should always be set up to establish the appropriate terms and conditions applicable to the relationship. For employees, it is important to have an agreement that provides for conditions such as the role, hours of work, pay and notice, to name a few.

Employee Entitlements

Employees will invariably be covered by an “Award”. An Award is a legal document which sets minimum terms of employment within a specific industry or occupation. The two Awards that are most applicable to harvest labour in Western Australia are the Pastoral Award 2020 (Cmlth) and the Farm Employees Award (WA). Again, it is important to understand which of these Awards will apply to your employees. This is a topic for another time.

Information about the above Awards can be found using the below links:

What Should You Do

Taking the time to sort out employment contracts, and contractor agreements, can be the difference between a swift harvest or a stressful one and minimises the prospect of dispute. It is therefore important, and strongly recommended, to engage with a professional to assist you in this area.

By Matilda Lloyd (Solicitor)

If you would like more information about harvest labour, the Awards or contractual agreements, please contact us on (08) 9321 5451 or by email at office@bailiwicklegal.com.au .

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

The above information is a summary and overview of the matters discussed. This publication does not const itute legal advice and you should seek legal or other professional advice before acting or relying on any of the content .

Is Carbon Farming right for you?

Fri, 18 Nov 2022 05:58:19 GMT

Phil and Matilda discuss what you need to consider before committing to Carbon Farming.

As a farmer, you’re looking for the best ways to make your land work for you, whether that is producing grain, livestock, or other commodities such as carbon.

For many years, Western Australian farmers have looked for ways to sequester carbon and improve their soil health and ultimately their productivity. In more recent times farmers have also look to carbon farming as a source of income.

In the last year the value of global carbon markets has surged to a record of $851 billion, which has certainly attracted more farmers to carbon farming. $ 815 billion dollars !!

To help farmers navigate carbon and this growing industry we did a Live on our Facebook page (which you should definitely check out), but if you missed it, here are the main takeaways:

Legislation

Much like any other source of farming income, to get into carbon farming, you’ll need to get acquainted with the legislation surrounding the activity, which mainly means getting acquainted with the emissions reduction fund.

This government fund is focused on incentivising actions that either diminish carbon emissions or store carbon by giving those that undertake said activities the opportunity to earn Australian Carbon Credit Units (ACCU’s).

Each ACCU is equivalent to 1 metric tonne of carbon dioxide equivalent (CO-e) net abatement, and they can be sold either to the government or in the open market.

There tend to be two methods of acquiring ACCUs.One is through the “sequestration of carbon” which is done by trapping carbon either into trees or into the soil, and the other is by lowering emissions in the farm’s daily activities. .

If you want your carbon entrapment to be considered eligible, you’ll need an approved method for measuring abatement, and land managers will need to check on the guidelines of different methodologies to pick one that suits their project.

For sequestration to continuously earn you credits, it needs to fulfill permanence obligations. That is, the quantity of carbon sequestered must increase at a certain rate for 25 to 100 years.

Selling your Carbon Credits

Great! So now you have carbon credits that you can sell and make quite a bit of income from, but how exactly do you sell them?

You have two main options: selling it to the government, or to the open private market.

If you’re going with the first option, you’ll have to wait for the next government carbon auction, which happens twice a year, where you’ll put up your credits for sale, either to the government itself or to other businesses looking to reduce their emissions.

The open market, on the other hand, works on a more conventional method, where you advertise your credits and interested parties, which will normally be companies, or even investors, can buy them for themselves.

This can be extremely profitable, as demonstrated by Willmot Cattle Co, which sold its carbon soil sequestration credits to Microsoft for $500,000..

As we always emphasise here at Bailiwick, you need to pay very close attention to your contract as it could contain a reverse clause, which obligates you to pay back received credits if you don’t meet a certain carbon quota.

Risks

Now, much like any investment, carbon farming does come with its own assortment of risks and caveats, some less obvious than others, with a main one, being the permanence period.

It’s not hard to imagine why, after all, 25 to 100 years is a really long time for you to lock up your land.

Indeed, how can you be sure that carbon farming will yield more return than crops or livestock? That will largely depend on your eligibility for government funding, since without it, the entirety of the project will come out of your own pocket at a great expense.

Also, there is the simple matter of what you’re going to do with all the trees on your property if you fail to meet the carbon quota, especially since clearing can be quite expensive. Will the land still be usable?

What’s more, the ERF wants you to start the project from the beginning, so you can’t really be eligible, if there already are trees in your property.

Mining Tenements

Earlier on we mentioned caveats, something else to look out for is that mining tenants, that is, hosting a mining operation in your land can have an effect on your carbon credit eligibility.

If the mining company approaches you after you’ve already established a carbon project, the best thing to do is sit them down and talk about compensation, particularly if mining operations are likely to encroach on your carbon project. Once again, it's all about your contracts.

On the other hand, if the situation is reversed and you already have a mining tenement on your land, and you’ve been playing with the idea of starting a carbon project, you’ll essentially be forced by the government to reach an agreement with the company for use of the land you’ve leased.

There are pros and cons to this alone, but once again the outcome is affected by a series of variables, including the location of your property, of the mining operation, and of course the carbon project within it.

Conclusion

When considering the risks and concerns of carbon farming you have consider whether the environmental benefits and income potential from carbon credits is be worth you locking away a portion of your land for 25-100 years.

The best way to approach carbon is with caution, looking at your particular circumstances and evaluating your chances of securing funding for your project But you don’t have to do it alone, in fact, it would be wise not to.

So, if you are considering getting into carbon farming, don’t be afraid to ask for the legal advice of the experts at Bailiwick as we are always available to provide you with assistance on your rights and opportunities as a rural landowner.

Enduring Power of Attorney and Enduring Power of Guardianship

Thu, 10 Nov 2022 03:23:24 GMT

There are two types of powers of attorney, a power of attorney (also known as a POA) and an enduring power of attorney (also known as an EPA).

Previously we covered an overview of what a Will in Western Australia is, what the requirements are for a Will to be considered valid, and what are some of the consequences that come from passing away without a Will.

We will now cover some of the other documents that can be prepared when undertaking your estate planning.

Let’s have a look:

Enduring Power of Attorney

There are two types of powers of attorney, a power of attorney (also known as a POA) and an enduring power of attorney (also known as an EPA). The key difference between a POA and an EPA is that an EPA will continue to operate even if the person who made the document loses full legal capacity, unlike a POA where it will cease to be valid. For the purpose of this article we are going to focus on the EPA as this is more commonly used in estate planning environments.

An EPA is a legal document whereby the donor (person making the EPA) gives another person and/or organisation (the attorney) the authority to make legal, financial and property decisions on the donor’s behalf. It is largely used whenever an individual loses the ability to make independent decisions on account of an illness, injury or similar circumstance, and can be made by anyone over the age of 18 who has full legal capacity.

When making an EPA, you can appoint a primary attorney as well as substitute attorney. You can also make the attorney’s powers general or impose restrictions on the decisions that can be made on your behalf.

An EPA can come into effect either immediately upon the EPA being signed and witnessed, or only once the State Administrative Tribunal has made a declaration that the donor has lost legal capacity.

If the donor has property, it is important to note that the EPA must be lodged with Landgate in order for the attorney to be able to deal with the donor’s property. Ideally this should be undertaken within 3 months of the EPA being signed by the donor, otherwise Landgate will require additional documents to be lodged together with the EPA to affirm its validity.

Enduring Power of Guardianship

Another legal document to be considered is the enduring power of guardianship (also known as an EPG).

An EPG is a legal document whereby the donor (person making the EPG) gives another person (the guardian) the authority to make personal, lifestyle and treatment decisions on the donor’s behalf. To make an EPG, the donor again must be 18 years of age or older and have full legal capacity.

When making an EPG, you can appoint a primary guardian as well as substitute guardian. You can also make the guardian’s powers general or impose restrictions on the decisions that can be made on your behalf.

Unlike an EPA, an EPG will only become effective after a person has been declared legally unable to make their own decisions and is not required to be registered with Landgate or any other third party. An EPG.

Conclusion

Life is unpredictable so it’s recommended to make use of the instruments available to you to protect your rights and interests not only when you pass, but also whilst you are alive but are not able to make your own decisions.

This is what these documents seek to achieve, largely through using the trust-based relationships already present in your life, which means that whoever you name in these documents should be very well picked.

There are a number of formalities that need to be addressed when undertaking these documents so it is recommended you engage professional advice in order to ensure your rights and interests are adequately addressed. You can always count on the guidance and advice from Bailiwick Legal in this space, so feel free to contact us through this link should you have any queries.

The contents of this article does not constitute legal advice, is not intended to be a substitute for legal advice and should not be relied upon as such. It is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. The material may not apply to all jurisdictions. You should seek legal advice or other professional advice in relation to any particular matters you may have.

By Danielle Edwards (Senior Associate)

What Happens if you Die Without a Will?

Sun, 30 Oct 2022 03:17:00 GMT

Dying without a Will (also known as dying ‘intestate’).

In our last blog , we mentioned the alarming number of Australians that die without a valid Will, leaving no verifiable proof of their wishes as to what happens to their estate.

In this article we are discussing what happens when you die without a Will (also known as dying ‘intestate’). Intestacy also occurs when a deceased person has left a Will that only deals with part of their estate, or the Will is not valid

We’re going to be covering the legal processes that are put in place for such a scenario and how to settle potential disputes that may arise over property that has not been properly distributed after the passing of the deceased.

Without further ado, let’s get to it.

How would the estate be distributed?

When a person dies intestate, the Administration Act 1903 (WA) (“Administration Act”) governs who is entitled to that person’s estate and how it will be distributed.

The process of deciding who gets what from that estate depends on a number of factors, including what relatives are alive at the time of death and the value of the estate.

This is a good moment to point out that no, if you die intestate, the government is not automatically entitled to the entirety of the deceased’s estate. This outcome is at the very end of the line and typically only happens if the deceased had no living relatives.

Whilst in some circumstances it may seem that distributing the deceased’s estate in accordance with the Administration Act is of a similar outcome to what the deceased would have written in a Will in any event, it should be noted that more often than not the results tend to be less than desirable.

A Case Study

Let’s use an example to understand this better.

We have a family that consists of dad, mum, child (aged 3), child (aged 5) and child (aged 8). Dad and mum each own a car in their respective names, there is a joint bank account and mum owned the family home solely.

Mum passes away unexpectedly and without leaving a Will. Let’s say, for the sake of this example, that mum’s car was worth $20,000, and the home $500,000, mum’s estate is worth a total of $520.000 (noting that the other car was in dad’s name so that remains his and the bank account was joint so that automatically transfers to dad upon mum’s death).

As mum died without a Will, she died intestate. This means the distribution of her estate is going to be governed by the Administration Act.

To determine who is entitled to mum’s estate and how it is to be distributed to such beneficiaries, the following questions needs to be considered:

1. Did mum have a husband/wife/de facto partner à Yes.

2. Did mum have kids (or kids of deceased kids) à Yes.

3. What was the value of the estate, being above or below the current threshold of $472,000 à above (mum’s estate was $520,000).

Therefore, mum’s estate would be distributed as follows:

· Dad would be entitled to the household chattels, $472,000 of mum’s estate and 1/3 of the balance; and

· Children would be entitled to share in the remaining 2/3 of the balance equally.

A Prevailing Problem

Whilst this outcome may not seem problematic at first as dad is entitled to a majority of the estate (which presumably is what mum would have wanted in any event), it does give rise to some potentially problematic issues.

Deducting dad’s automatic entitlement to the first $472,000 means there is $48,000 left for distribution between dad and the children. $16,000 (being 1/3) is dad’s whilst the other $32,000 (being 2/3) is to be split between the children equally.

As the only assets are the family home and mum’s car, it is going to be difficult to split these assets in accordance with the above without having to convert them to cash. This is perhaps more problematic when considering the family home as it may result in the home having to be sold to effect the intended distribution.

Further, as the children are all under age, dad would need to hold their portions on trust until they were old enough to receive their benefit. This may be assets that the dad may require in order to provide for the children as they grow up.

One can imagine how this scenario would be further complicated if there was a blended family or second marriage, which today is quite common.

All these issues could easily be avoided with the preparation of a valid Will.

But who would be the Executor?

We’ve discussed what happens to the deceased’s estate when they die intestate, but we haven’t discussed who is appointed as the executor.

When someone dies intestate, Letters of Administration must be applied for and granted from the Supreme Court appointing an administrator (same role as an executor) prior to the estate being able to be dealt with. This process can be more complicated, timely and costly than the Probate process (where the deceased died with a valid Will appointing an executor).

So who exactly gets to be the administrator in such situations?

Any direct beneficiary of the estate can apply to be the administrator, so long as they are over the age of 18 and are of sound mind. If there are no direct relatives then anyone, including a creditor of the estate, can apply for Letters of Administration.

In the case study above, the direct beneficiaries of mum’s estate were dad and the children, however as the children are minors dad would be the only person in the family entitled to apply for Letters of Administration.

Conclusion

Having a loved one die can be a terrible experience by itself long before anyone even mentions a Will, but having them die intestate does nothing to better such a terrible scenario.

If you unfortunately find yourself in this kind of situation, it is recommended you seek out legal advice tailored to your particular circumstances in order to formulate the best possible course of action.

Please contact our office on (08) 9321 5451 or office@bailiwicklegal.com.au for more information.

By Danielle Edwards (Senior Associate)

Bailiwick Legal newsletter September 2022 edition

Sat, 01 Oct 2022 04:46:01 GMT

Check out the latest and what we have been up to in our September newsletter !

Credit History

Tue, 27 Sep 2022 04:18:45 GMT

What personal information is allowed on your Credit History Report and how long does it stay on there?

What is a Credit Report?

A credit report contains information about any past or current consumer loans or debts and your repayment history. A credit report can also contain other public information such as court proceedings, and whether you have been bankrupt or personally insolvent.

Your credit report is an important measure of your financial reliability and will be reviewed by banks and other financial institutions when applying for a credit card, a loan or buying a house.

Who regulates credit-related information?

Credit-related personal information is regulated by the Privacy Act 1988 (Cth), the Privacy Regulation 2013 and the Privacy (Credit Reporting) Code 2014. The legislation covers what is allowed to be on reports about credit, deletion of information, access to credit information and accuracy and the security of the information held.

Recent Changes

On 3 February 2021, the Federal Parliament passed the National Consumer Credit Protection Amendment (Mandatory Credit Reporting and Other Measures) Bill 2019.

The changes commenced on 1 July 2021 and were aimed at ensuring that credit reporting bodies have a more complete and comprehensive picture of consumers' creditworthiness, by mandating that certain credit providers supply information about 'positive' credit matters, such as how well a person is meeting their repayment obligations.

What personal information is recorded on your Credit Report?

Under the Privacy Act 1998 (Cth) the following information can be recorded on your Credit Report:

· Consumer credit liability accounts;

· Monthly repayment history on credit accounts such as mortgages and credit cards;

· Overdue accounts such as defaults and serious credit infringements;

· Bankruptcy, debt agreements and personal insolvency; and

· Court proceedings information.

How long with personal information remain on my Credit Report?

Your personal information will only be retained for certain periods of time. For example, court proceedings information will be retained for a period of 5 years that starts on the day on which the judgement to which the information relates is made or given. Credit information relating to repayment history will be retained for a period of 2 years, starting on the day on which the monthly payment to which the information relates is due and payable.

Generally information can only be removed from your credit report once the relevant retention period has passed, however it is possible to request amendments to your credit report to reflect satisfied debts etc so that they do not show as outstanding.

How do I check my credit report?

There are a number of credit reporting agencies that can provide you with a copy of your credit report on request and further information.

Otherwise if you have any questions about your own credit information or credit history report please contact us.

By Danielle Edwards (Senior Associate)

Some Reasons to Re-think why you need a Will

Wed, 14 Sep 2022 04:25:54 GMT

Despite being one of the most commonly known legal documents to the general public, around 50% of Australians don’t have a valid Will.

This statistic is alarming, particularly when you consider how important a Will is as it deals with your life’s hard work and has the ability to significantly impact your loved ones.

So today, we are going to have a look at what makes a Will valid and how it can be written to ensure your estate is distributed according to your desires.

Benefits of having a Will

There are many good reasons to have a Will. Some of these include:

You can be clear about who gets your assets, deciding who gets what and how much;
You can keep your assets out of the hands of people you don’t want to have them (like an estranged child for example);
You can identify who should care for your children;
Your beneficiaries will have a faster and easier time getting access to your assets; and
You can plan to save your estate money on taxes and leave gifts and charitable donations which can help offset any estate taxes.

A Will Requires…

In order to be considered valid, a Will must be in writing and be witnessed by two independent witnesses . The will-maker must also be of sound mind at the time of writing and signing their Will.

The Will should also contain the will-maker’s full name, address and occupation, the date the Will was signed, the name of your executor, how your estate is to be distributed and the signing clause.

You may distribute any piece of property, from personal items like books and jewellery to real property. It is not necessary to list every item of property specifically in your Will, the only caveat is that your Will must deal with all of your property in some manner. It is therefore recommended that your Will contains a clause dealing with “all of [your] property” or “all remaining property”.

A badly written Will can not only lead to delays and disputes, but it may also be deemed invalid.

The Executor

So what is the executor?

The executor is the person charged with executing the instructions left by you in your Will. Essentially this means gathering all your assets, paying off your debts and distributing the remaining assets in accordance with your Will.

The executor often also arranges the funeral and makes initial contact with the beneficiaries.

If you have left property or investments, it is the executor’s job to arrange for them to be looked after. If you have distributed assets to persons under age, it is also the executor’s job to set up any required trusts and maintain these for as long as required.

The role of the executor can be complex and time consuming so it is important you nominate someone that can appropriately take on this position.

Superannuation and Life Insurance

Something to keep in mind when you write your Will is that superannuation and life insurance policies are not automatically considered by the law to be a part of your estate. After you pass, these policies are dealt with by the trustee of the fund.

However, most funds will give you the option of making a death nomination, which allows you to elect those who will benefit from your policies. When making a death nomination there are a combination of options you can choose from, typically being binding (the trustee will be bound by your nomination) or non-binding (the trustee can use its discretion) and lapsing (it must be renewed every three years or as otherwise directed by the fund) or non-lapsing (it will remain valid until you pass). It is often our recommendation that you elect a binding non-lapsing death nomination, however this will depend on who you wish to leave the benefit of these policies too.

This process is similar with self managed superannuation funds, however it is important to note there are additional rules and regulations that govern these types of policies that need to be taken into account when making a death nomination or determining who you want your superannuation to be distributed to.

Taxes

Lastly, it should be noted that whilst there is generally no tax on inheritance in Australia, there may be tax implications if your executor resides outside Australia (this is because the tax residency of the executor determines the tax residency of your estate) or your beneficiaries reside outside Australia.

Further, beneficiaries may have tax obligations for the assets inherited once assets are disposed of (i.e. on the sale of real property capital gains tax may apply) or for income dervied from assets inherited (i.e. income tax may apply for dividends from shares or rent from real property).

Conclusion

Wills are a great insurance that the fruits of your labor are distributed to the people of your choosing and ensuring your loved ones are provided for after your passing.

If you would like assistance with preparing or amending your Will we would be more than glad to help out. Please contact our office on (08) 9321 5451 or office@bailiwicklegal.com.au for more information.

By Danielle Edwards (Senior Associate)

Bailiwick Legal newsletter July 2022 edition

Fri, 29 Jul 2022 06:23:47 GMT

Our latest newsletter is out. Click here to read what we have been up to in the months leading up to July.

Family Farm Exemption - Stamp Duty

Thu, 14 Jul 2022 06:48:30 GMT

Does the Exemption Apply to me?

The family farm exemption is one of several exemptions under the Duties Act 2008 (WA). The exemption applies to farm land that is transferred between family members that use the land solely or dominantly for the purpose of primary production. If applicable, the exemption can save farming families from having to pay substantial amounts of duty.

However, the exemption does have limitations. In particular, the Act requires the “transferor” to be an individual or a bare trustee who is acting on behalf of an individual. This means that if the farm is held in the name of a company, and the directors wish to transfer the farm to their children, the transaction will not be exempt from duty.

Limitation also arises from the definition of “transferee”. If the transferee is a family member or the trustee of a trust in which each beneficiary is a family member of the transferor then the exemption will apply. However, if the transferee is a trustee of a discretionary trust in which a company can be a beneficiary, then the exemption will not be applicable.

A lot of family farms are held under a trust, individually, by several persons involved in the farm business or in a company. In most instances all of the key people will be related family members. It is not always the case though that the family farm exemption will apply where land is transferred for the benefit of other family members.

If you are contemplating a transfer of land for the benefit of other family members, for business succession or otherwise, ensure to seek advice early on whether duty will or will not apply to the transition.

By Matilda Lloyd (Law Graduate)

If you need assistance or have questions relating to the family farm exemption or the structure of your family farm, please contact us on (08) 9321 5451 or by email at office@bailiwicklegal.com.au .

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

The above information is a summary and overview of the matters discussed. This publication does not const itute legal advice and you should seek legal or other professional advice before acting or relying on any of the content .

Increase to Minimum Wage - What does the changes mean to you?

Thu, 23 Jun 2022 03:58:48 GMT

Recently the Fair Work Commission undertook its annual wage review. The Commission announced that there would be a 5.2% wage increase to the national minimum wage, and a $40 or 4.6% increase to award wages.

Minimum Wage Increase

The national minimum wage is currently $20.33 per hour or $772.60 per week. However, from 1 July 2022 the minimum wage will increase by 5.2%. For those employees not covered by an award or registered an agreement, the 5.2% wage increase will mean that those employees will earn an extra $40 per week.

Modern Award Increase

In addition, the Commission has announced an increase to minimum award wages. The increase means that minimum award wages above $869.60 per week, will get a 4.6% increase and minimum award wages below $869.60 per week, will get a $40 increase. Most award wages will increase from the first full pay period on or after 1 July 2022.

However, if you are in the hospitality and tourism industries, and covered by the following awards, the increase will not roll out until 1 October 2022:

Aircraft Cabin Crew Award
Airline Operations – Ground Staff Award
Air Pilots Award
Airport Employees Award
Airservices Australia Enterprise Award 2016
Hospitality Industry (General) Award
Registered and Licensed Clubs Award
Restaurant Industry Award
Marine Tourism and Charter Vessels Award
Alpine Resorts Award

Changes to Superannuation

The Federal Government has also announced that there will be changes to the superannuation laws, effective also from 1 July 2022. These changes will include the removal of the $450 minimum earnings threshold, and an increase in the employer contribution rate from 10% to 10.5%.

Once the $450 minimum earnings threshold is removed employers will be required to make contributions to an eligible employee's super fund regardless of how much the employee is paid. However, employees will still be required to satisfy other existing eligibility requirements.

The second change to the superannuation laws is an increase to the employer contribution rate. This change simply means that, as of the 1 July 2022 employers will need to calculate super contributions on payments to employees at the new rate of 10.5%.

As the end of the financial year approaches it will be important for employers to review their employment contracts and implement the necessary wage increases to ensure that they are compliant with the relevant award.

By Matilda Lloyd (Law Graduate)

If you have questions about the changes and how they may affect you and your business, or on employment issues generally, please contact us on (08) 9321 5451 or by email at office@bailiwicklegal.com.au .

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

The above information is a summary and overview of the matters discussed. This publication does not const itute legal advice and you should seek legal or other professional advice before acting or relying on any of the content .

Bailiwick Legal newsletter March 2022 edition

administrator@heliummarketing.agency (Helium Marketing) — Fri, 04 Mar 2022 03:53:35 GMT

Our first newsletter of 2022 is out! Click here to read our March news.

** Note: Since the publication of our newsletter, an announcement has been made that the Wagin Woolorama Show of 2022 scheduled for 11-12 March has had to be cancelled due to COVID restrictions.

Aboriginal Cultural Heritage Bill 2021- implications for farmers

Tue, 14 Dec 2021 03:05:47 GMT

A year after the destruction of Juukan Gorge, the McGowan Government has introduced a new Aboriginal Cultural Heritage Bill to the State’s current Aboriginal Heritage Act 1972. The Bill makes extensive amendments to Act to improve the recognition and protection of Aboriginal cultural heritage in WA. However, the introduction of a four tier assessment process for the approval of activities on freehold and Crown land has raised concerns from many farmers and landholders across the State.

Landholders

Under the Bill a landholder is defined very broadly to include:

a person or body that owns, leases or manages Crown land;
a person that is the proprietor of an estate in fee simple in land; or
a person who is the holder of the freehold in land.

Rights of Aboriginal people in relation to Aboriginal Cultural Heritage

Under the Bill Aboriginal people are granted certain rights in respect of Aboriginal cultural heritage, which is now defined to include an Aboriginal place, an Aboriginal object, a cultural landscape and Aboriginal ancestral remains.

An Aboriginal person, group or community that has traditional rights, interests and responsibilities in respect of a secret or sacred object or an area in which Aboriginal ancestral remains are located, or are reasonably believed to have originated from, is a custodian and entitled to possession and control of the object or ancestral remains. However, in order for an Aboriginal cultural heritage to be recognised and protected from activities that may cause harm to it, a protected area order is required.

Protected Area Order

Under part 4 a protected area application to the Aboriginal Cultural Heritage Council (ACH Council) can only be made by a local knowledge holder, which is an Aboriginal person who in accordance with Aboriginal tradition, holds particular knowledge about Aboriginal cultural heritage of the area.

Once a protected area application is made, the ACH Council must notify each local ACH service, native title party and knowledge holder for the application area. If the ACH Council forms a preliminary view that an area be declared as a protected area, the Council must then give public notice about the area and notify each landholder for the area or a part of the area and any other person the Council considers has an interest in the area. Each party who is notified can then make submissions to the ACH Council about the application area.

The ACH Council may then make recommendations to the Minister for Aboriginal Affairs as to whether the application area should be declared as a protected area and whether it should be subject to any conditions such as management or access to the area. The Minister has the authority to declare an application area as a protected area and issue a protected area order. The Registrar of Titles must also be notified of the protected area order. The Registrar has the discretion to make an endorsement or notation on the certificate of title of the land affected. Once an order is issued it must be complied with.

Activities that Require a Due Diligence Assessment

Under the new Bill, a four-tier approval process has been introduced for activities that may cause harm to Aboriginal cultural heritage.

The four-tier approval process is only applicable to proponents, who are persons intending to carry out activities that may harm Aboriginal cultural heritage. There are four types of activities, however only the proponents of tier two and tier three activities which involve low or moderate to high levels of ground disturbance will be required to undertake a due diligence assessment. Similarly, if the proposed activity is intended to be carried out in an area that is part of a protected area or is an area where Aboriginal cultural heritage is known to be located or there is a risk of harm to Aboriginal cultural heritage by the proposed activity, then the proponent of that activity will be required to undertake a due diligence assessment.

A due diligence assessment involves:

the proponent notifying each ACH local service for the area, or alternatively each native title holder or knowledge holder for the area, of the proposed activity;
if the activity is a tier 2 or 3 then the proponent must give each of the persons notified about the activity the opportunity to submit a statement about the person’s views about the risk of harm being caused to Aboriginal cultural harm from the proposed activity; and;
then an application to the ACH Council to gain an ACH permit to carry out a tier 2 activity.

The application to the ACH Council must outline the details of the proposed activity, the characteristics of Aboriginal cultural heritage of which the proponent is aware of and any risk of harm to Aboriginal cultural heritage identified in the due diligence assessment. The ACH Council can either grant an ACH permit for the proposed activity or refuse to issue a permit. If refused, the proponent can object in writing to the Minister who can either confirm the decision of the ACH Council or make another decision.

For a tier 3 activity, a proponent is required to have an approved or authorised ACH management plan with interested Aboriginal parties, including local ACH services and native title parties in the area, and consult with those parties before the commencement of a tier 3 activity. Aboriginal parties are required to give informed consent to an ACH management plan before a plan can be approved by the ACH Council or authorised by the Minister. Once approved or authorised, a proponent can carry out their proposed activities in accordance with their ACH management plan. However, if new information about Aboriginal cultural heritage emerges in relation to an area to which an ACH permit or approved or authorised ACH management plan relates, then the Minister has the discretion to issue a stop activity order, prohibition order and remediation order to prevent harm to Aboriginal cultural heritage.

Implications for Landholders

If no protected area order has been declared over an area of land and there is no knowledge of Aboriginal cultural heritage in the area then a landholder is free to carry out activities on their land without having to comply with the provisions of the proposed Bill.

Compliance Measures

The main concern about the Bill is the compliance measures that have been introduced. Under part 10, Aboriginal and non-Aboriginal inspectors are given broad powers to enter Aboriginal places, obtain information and conduct inspections for the purpose of ascertaining whether the Act or any instrument has been contravened. As part of their powers, inspectors will have the power to enter places, take samples or specimens, survey and mark out land, and make reasonable use of any equipment, facilities or services on or in a place or vehicle in order to carry out an inspection.

It is unclear, how often inspectors will be used to carry out inspections as the purpose for inspections in s 230 is worded very broadly, but it appears that Aboriginal and non-Aboriginal inspectors will be given much broader powers of inspection, entry and seizure than what is in the current Act.

By Matilda Lloyd (Paralegal)

If you would like more information about the proposed amendments or how the above matters may affect your business, please contact us on (08) 9321 5451 or by email at office@bailiwicklegal.com.au .

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

The above information is a summary and overview of the matters discussed. This publication does not const itute legal advice and you should seek legal or other professional advice before acting or relying on any of the content .

Unlawful and Unreasonable Vaccination Mandate - The FairWork Commission’s Recent Decision on BHP’s Vaccination Policy

Thu, 09 Dec 2021 05:37:25 GMT

Last week, the Fair Work Commission Full Bench handed down the much anticipated decision of CFMMEU & Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal .

BHP COVID-19 Vaccination Policy

Mt Arthur is an open cut coal mine in NSW owned by Hunter Valley Energy Coal Pty Ltd, which is a member of the BHP group of companies. The dispute between the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and Hunter Valley Energy Coal arose when Mt Arthur announced that all workers at the Mine must be vaccinated against COVID-19 as a condition of site entry. Under the Site Access Requirement that was announced, workers would have had to have at least a single dose of an approved COIVD-19 vaccine by 10 November 2021, and be fully vaccinated by 31 January 2022.

The Fair Work Commission Decision

After expressing concerns about the lawfulness of the Site Access Requirement, the CFMMEU who represent 700 of the employers at the mine, made an application to the Fair Work Commission seeking a determination. The issue before the Full Bench was whether the Site Access Requirement was a “lawful and reasonable direction” in respect of employees at the Mt Arthur mine who are covered by the Mt Arthur Coal Enterprise Agreement 2019.

The Full Bench observed that a lawful direction is one which falls within the scope of an employee’s employment and there is no obligation to obey a direction which goes beyond the nature of the work the employee has been contracted to perform. Accordingly, employees are obliged to comply with employer directions which are lawful and reasonable. The Full Bench recognised that reasonableness is a question of fact having regard to all the circumstances and the nature of the particular employment.

To assess the lawfulness and reasonableness of the Site Access Requirement, the Full Bench considered whether Mt Arthur had an obligation under the current Work Health and Safety Act 2011 (WHS Act). Under s 47(1) of the WHS Act there is an obligation on employers to consult, so far as reasonably practicable, with “workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety”.

The Full Bench reached the conclusion that the Mt Arthur did not given the employees a “genuine opportunity to express their views and to raise work health and safety issues, or to contribute to the decision-making process relating to the decision to introduce the Site Access Requirement.” The Full Bench said that due to the lack of information relating to the reasons, rationale and data supporting the proposal, the engagement with employees in the assessment phase was not “consulting” as far as reasonably practicable to comply with s 47 of the WHS Act.

Reasons for the Decision

The Full Bench determined that the Site Access Requirement was a lawful direction because it fell within the scope of the employment and there is nothing illegal or unlawful about becoming vaccinated. However, when it came to the question of reasonableness the Full Bench determined that the Site Access Requirement was not a reasonable direction because Mt Arthur had not consulted with its employees as required by ss 47 and 48 of the WHS Act.

The Full Bench noted that had Mt Arthur consulted the employees in accordance with its consultation obligations under the WHS Act and Enterprise Agreement, such that the Commission could be satisfied that the decision to introduce the Site Access Requirements was the outcome of a meaningful consultation process, the Site Access Requirements would have been a reasonable direction.

What does this decision mean for other employers?

The decision provides some clarity as to the minimum expectations in relation to COVID-19 vaccination policies and directions introduced by employers. The Site Access Requirement would have been lawful and reasonable, if the consultation process had been engaged before implementation by Mt Arthur.

BHP currently has other vaccine mandates in place across Victoria and Western Australia which will remain in place. Provided that Mt Arthur commences its consultation with the employees in a timely fashion, the Full Bench expects that Mt Arthur would be in a position to make a decision about whether to impose the Site Access Requirement at the Mine prior to 15 December 2021.

The decision will have little impact where public health orders mandate vaccination.

Until then if you would like further information in relation to how the above matters may affect your business, please contact us on (08) 9321 5451 or by email at office@bailiwicklegal.com.au .

By Matilda Lloyd (Paralegal)

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

New Diversification Lease for Pastoralists

Thu, 09 Dec 2021 05:10:41 GMT

Proposed Amendments to the Land Administration Act 1997

On 18 November 2021 the Minister for Lands, Tony Buti, announced that the Land Administration Act 1997 (WA) would be amended in 2022 to introduce a new, more flexible form of land tenure for unallocated Crown land and pastoral land known as a ‘diversification lease’.

Currently, the Land Administration Act only permits pastoral and unallocated Crown land to be used for grazing livestock. Pastoral leases in WA are granted for a period of 50 years with an option to renew, which most pastoralists exercise at the end of the lease period. The proposed ‘diversification lease’ will allow pastoralists to extend their pastoral lease for a further 50 years and use their land for other than pastoral purposes including horticulture and renewable projects such as wind farms and carbon sequestration projects.

The Minister has said that this new ‘diversification lease’ will also open up large areas of land for conservation organisations to preserve or rehabilitate biodivsity or for Native Title holders to undertake economic development activities such as cultural tourism.

Diversification Leases

The diversification lease that has been proposed will not extinguish native title rights and interests where there is native title, nor will it prevent mining and exploration activities from occurring. However, the Minister has indicated that all diversification leases will require the establishment of an Indigenous land Use Agreement with native title holders in the area.

The Northern Territory has been granting diversification leases to pastoralists through the Northern Territory Pastoral Land Act 1992 and the Crown Lands Act 1992 for several years and many pastoralists in the Territory have been able to leverage opportunities in the renewable energy sector and diversify their operational activities.

The Minister believes that the proposed amendments will:

Offer greater certainty of tenure for pastoralists;
Provide new large-scale carbon farming opportunities on Crown and pastoral lands;
Remove red tape to aid in the fight against climate change;
Facilitate important renewable energy projects in regional WA;
Unlock economic opportunities for Native Title holders; and
Be another step closer in WA’s transition to net zero emissions by 2050.

Some farmers and pastoralists have raised concerns about the practicality of the diversification lease and whether the proposed amendments will make much difference to the average pastoralist. Most renewable energy projects are very costly and require investment from external sources in order to be established. Diversification leases may only be a viable option for pastoralists with other interests, whom can gain large investments. However, a diversification lease may be an avenue for pastoralists to establish carbon projects and participate in the Commonwealth’s ERF scheme.

The amendments are still being drafted so the details of the diversification lease will not be known until a Bill is introduced into parliament, scheduled for early 2022.

Until then if you would like further information in relation to how the above matters may affect your business, please contact us on (08) 9321 5451 or by email at office@bailiwicklegal.com.au .

By Matilda Lloyd (Paralegal)

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

Merely having a waiver for your business is not enough. Here’s why!

Wed, 24 Nov 2021 03:28:40 GMT

Waivers are vital for businesses seeking to reduce their risk of liability, particularly those providing high-risk related activities and services. However, merely having a waiver is not enough. It is also of importance to consider how the waiver is to be incorporated into your contractual arrangement with the participant.

What is a waiver?

A waiver is a legal instrument evidencing a persons act of intentionally relinquishing or abandoning a known right or claim. Waivers are commonly utilised by businesses to obtain agreement from a participant to ‘waive’ the participant’s right to make a claim against the business if they suffer any damage or injury arising from their participation in activities or services provided by the business. If properly drafted and accepted, a waiver will allow a business to potentially avoid liability if a participant suffers damage or injury in connection with the business’ activities.

Importance of implementation

The recent case of Marks v Skydive Holdings Pty Ltd [2021] VSC 21 in the Victorian Supreme Court emphasises the importance of implementing waivers in a manner that ensures participants are able to access and accept the waiver prior to entering into a contractual arrangement with the business. Businesses cannot merely rely on the existence of a waiver (even if signed by the participant) to automatically entitle it to protection from liability.

In this case, Ms Marks sued Skydive Holdings Pty Ltd (‘ Skydive ’) after sustaining serious injuries arising from a heavy landing. One of the issues considered by the Court in determining the cause of Ms Mark’s injuries (and whether Skydive had any liability), was whether the waiver signed by Ms Marks provided Skydive with a complete bar to any liability.

Prior to Ms Mark’s participating in the activity, Skydive provided Ms Marks with, and she signed, a waiver indemnifying Skydive from loss or damage suffered in connection with the skydiving activity. However, the Court held that the waiver could not be relied upon as a complete bar to any liability because it did not form part of the contractual arrangement entered into with Skydive at the time Ms Marks booked and paid for the activity.

The waiver was provided to Ms Marks at its place of business on the day of her skydive. It was not provided to Ms Mark’s at the time she booked and paid for the activity online, nor was it mentioned in the booking confirmation or the terms and conditions signed by Ms Marks.

Had the waiver been provided to Ms Marks during the course of the booking process, perhaps the outcome may have been different.

Jumping with caution

This case provides a timely reminder of the importance of implementing waivers in a manner that ensures participants are able to access and accept the waiver prior to entering into a contractual arrangement with the business, particularly those providing high-risk related activities and services. Merely having a waiver for your business is not enough.

By Danielle Edwards (Associate)

If you would like further information in relation to how the above matters may affect your business or assistance with preparing and implementing a waiver and or terms and conditions for your business, please contact us on (08) 9321 5451 or by email at office@bailiwicklegal.com.au .

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

New Fair Work Commission Rules - Minimum Rate of Pay for All Farm Workers across Australia

Fri, 19 Nov 2021 03:23:01 GMT

What are the Fair Work Commission’s new rules?

In what has been described as one of the most significant industrial decisions of modern times, the Fair Work Commission has ruled that workers on a piece rate must now be guaranteed a minimum wage under the Horticultural Award.

For decades many workers in the fruit and vege industries have been paid according to the amount of produce they harvest which is also known as a piece rate. However, those practices are set to change after the Commission’s recent ruling.

The ruling comes after the Australian Workers Union (AWU) lodged a claim with the Commission, arguing that every worker should be guaranteed a minimum casual rate, currently $25.41 per hour. The Commission "expressed the view that the existing pieceworker provisions in the Horticulture Award are not fit for purpose", and “do not provide a fair and relevant minimum safety net as required by the Act”.

Who do the new rules apply to?

The horticulture industry includes all fruits, vegetables, grains, seeds, hops, nuts, fungi, olives, flowers and other specialised crops (excluding broadacre field crops). Examples of employees covered by the Horticulture Award include:

fruit or vegetable pickers;
sorters and packers, including employees using machines and equipment;
drivers of lorries, harvesters, forklifts and tractors; and
employees performing inventory, store control and quality assurance/control.

The Horticulture Award also covers labour hire businesses and their employees who are placed with an organisation in the horticulture industry.

How will the rules work?

Prior to the ruling, if an employee was being paid under a piecework rate system, they may not necessarily receive the equivalent of the minimum wage. Typically, this applied to slower pickers who worked below the average of other pickers. Piece rates were used to incentivise workers but this concept may now be obsolete.

The new changes essentially act as a safety net so that all horticultural workers will be guaranteed a set minimum hourly rate. The piecework rates can still operate and be used by farmers but workers now have a second option and a safety net.

What are the implications on farmers?

The Full Bench of the Fair Work Commission has said that “the insertion of a minimum wage floor with consequential time recording provisions in the piece work clause is necessary to ensure that the Horticulture Award achieves the modern awards objective”.

However, federal agriculture minister David Littleproud suggested that “the ruling could mean Australians will be asked to pay higher prices for their produce, as the cost of producing that produce should be reflected at the checkout”.

The National Farmers' Federation have also raised concerns and said they oppose the changes arguing that ‘piece rates promote productivity and any change to the award could drive farmers out of business.’

The changes to the Award do not prevent farmers from using piecework agreements with their employees, but it is important that farmers are aware of the rules regarding piecework rates. The rules include:

if an employer uses piecework rates to pay their employees, they should be able to demonstrate how they calculated their piecework rates;
piecework rates must be set at the time a piecework agreement is made;
a piecework agreement must be made before work starts under the agreement; and
piecework rates must also be reviewed regularly.

By Matilda Lloyd (Paralegal)

If you would like more information about how to understand and use piecework agreements or how the above matters may affect your business, please contact us on (08) 9321 5451 or by email at office@bailiwicklegal.com.au .

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

Bailiwick Legal newsletter November 2021 edition

administrator@heliummarketing.agency (Helium Marketing) — Tue, 16 Nov 2021 07:00:47 GMT

Our latest newsletter is out! We have been very busy both in and out of the office this couple of months.

Click here to read our November news.

The Debt Recovery Process - Part 2: Commencing Legal Proceedings

Thu, 04 Nov 2021 07:35:50 GMT

As discussed in Part 1 of The Debt Recovery Process , it is important to carefully consider the approach taken to recover due and owing monies and the quality of debt recovery assistance sought.

Once a Letter of Demand has been issued and the debtor still continues to be indebted, there are a variety of options available to the business to recover the debt. The most common form of recovery is commencing legal proceedings against the debtor. Depending on the monetary amount, this can be done in a number of jurisdictions.

For claims less than $75,000, proceedings will be commenced in the Magistrates Court. For claims between $75,000 and $750,000 proceedings will be commenced in the District Court. For claims above $750,000, proceedings will be commenced in the Supreme Court.

Magistrates Court

The Magistrates Court is further split up into two jurisdictions. The Minor Case division handles matters of a monetary amount of less than $10,000 and the General Case division handles matters of a monetary amount of more than $10,000.

The process in both divisions is substantially the same. The notable differences are that:

legal representatives are not permitted to act on a parties behalf in the Minor Case division without permission being granted by the Magistrates Court; and
legal costs incurred in connection with a Minor Case claim are typically not recoverable from the unsuccessful party.

Otherwise, the process is summarily as follows:

Proceedings are commenced by the Claimant against the Defendant by lodging and serving a General Procedure Claim.
The Defendant is then given an opportunity to lodge and serve a Response.
If the claim is defended, the Plaintiff is then required to lodge and serve a Statement of Claim.
The Defendant is then given an opportunity to lodge and serve a Statement of Defence.
The parties will then typically undertake the Discovery process whereby copies of all documents relevant to the claim are exchanged.
The claim would then be listed for a Pre-Trial Conference. This is a without prejudice and confidential conference before a Registrar of the Court whereby the parties attempt to settle the claim.
If the claim is not settled at the Pre-Trial Conference, the parties are then required to lodge and serve statements from witnesses and experts in support of their claim.
The claim would then be listed for a trial before a Magistrate who will make a determination.

The above process typically takes between 12 and 18 months.

District Court and Supreme Court

The process in the District Court and Supreme Court is substantially the same as that in the Magistrates Court except:

parties are automatically entitled to legal representation (and for companies are mandatory);
legal costs are recoverable from the unsuccessful party in accordance with the scale set by the Legal Costs Committee (except in certain circumstances);
the party commencing the claim is known as the Plaintiff (not the Claimant); and
it can take slightly longer to get to a trial (between 18 and 24 months).

Conclusion

Legal proceedings can be timely and costly so it is important to engage professional assistance to ensure you are giving yourself the best opportunity to recover a debt owed to you.

By Danielle Edwards (Associate)

If you would like further information in relation to how the above matters may affect your business, please contact us on (08) 9321 5451 or by email at office@bailiwicklegal.com.au .

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

Would I need to pay Workers Compensation if my Employee Contracts COVID-19? A case summary of Sara v G&S Sara Pty ltd’

Thu, 04 Nov 2021 07:23:56 GMT

COVID-19 has drastically impacted on employers management practices in relation to their employees. The Western Australian Government recently mandated vaccinations for particular industries , creating uncertainties for employers in those industries as well as in areas where the COVID-19 vaccination is not yet mandated as compulsory. Whilst the WA Government is largely deferring the mandatory vaccination requirement to the employer – a recent case in NSW may provide an insight for employers when considering their options.

In the recent case of Sara v G & S Sara Pty Ltd [2021] NSWPIC 286 (‘the Sara Case’), the Court determined that an employee who contracted the COVID-19 virus during the course of the employment was entitled to workers compensation payments

The Sara Case

In the Sara Case, Mr Sara, a director of G & S Sara Pty Ltd (‘the employer’), passed away after contracting the COVID-19 virus whilst travelling on a trip to New York from Sydney to sell and promote the employer’s products. While in the United States, Mr Sara tested positive to COVID-19 and was admitted to a New York Hospital, where he suffered heart attacks and strokes, before dying from COVID-19 complications. Mr Sara’s wife applied for compensation for her husband’s hospitalisation, medical and funeral expenses in addition to a lump sum death benefit pursuant to the NSW Workers Compensation Act 1987 (‘the Act’).

In the application made under the Act, the NSW Personal Injury Commission (‘the Commission’) was required to determine two contentious issues.

Whether Mr Sara was considered to be an employee of the employer whilst on travel; and
Whether Mr Sara contracted the COVID-19 virus during the course of his employment.

Interestingly, the question of whether COVID-19 fell within the definition of ‘injury’ under the Act, was not put in issue.

The Commission’s Findings

Although the employer argued that Mr Sara contracted the COVID-19 virus during social functions outside the course of his employment in New York, the Commission held that Mr Sara was very likely to have contracted COVID-19 during his travel to New York from Sydney, which included his transit from San Francisco to New York. The Commission made this determination by analysing the following factors:

Mr Sara’s length of travel from Sydney to New York, which exposed Mr Sara to many environments and potential close contacts, making Mr Sara likely to contract COVID-19;
Mr Sara’s unwillingness to wear a mask during his travel from Sydney; and
The medical evidence provided to the Commission as to the likely incubation period of the virus.

Secondly, the Commission found that Mr Sara’s contraction of the COVID-19 virus was within the course of Mr Sara’s employment with the employer, citing the following reasons:

Mr Sara was a paid employee with the employer under a contract of service;
the employer paid workers compensation insurance including for Mr Sara;
the work trip was induced and encouraged by the employer, to produce outcomes for the benefit of the employer; and
Mr Sara was continually receiving his ordinary wage from the employer while he was in the United States (and was not on annual leave during his travel to the United States).

As a result, the employer was ordered to pay Mr Sara’s wife a lump sum death benefit and weekly compensation of $834,000 to compensate for the period of Mr Sara’s hospitalisation and resulting death due to COVID-19.

Relevance to Western Australian Employers

Section 4 of the Western Australian Workers Compensation and Injury Management Act 1981 (‘the WA Act’) defines ‘injury’ to mean the following:

(a) a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer’s instructions; or

(b) a disease because of which an injury occurs under section 32 or 33; or

(c) a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree; or

(d) the recurrence, aggravation, or acceleration of any pre-existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree; or

(e) a loss of function that occurs in the circumstances mentioned in section 49,

but does not include a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in subsection (4) unless the matter is mentioned in paragraph (a) or (b) of that subsection and is unreasonable and harsh on the part of the employer

In light of the Sara Case, and given that the dominant literature provides that COVID-19 is a disease, employers in WA may find themselves liable under Section 4(c) of the WA Act in the event that an employee contracts COVID-19 during the course of the employment of the employee, or at a location whereby the employment was a contributing factor to contracting COVID-19.

Conclusion

Overall, the Sara Case underscores the importance for employers to be mindful of the propensity for employees to contract diseases, such as COVID-19 during the course of the employment of an employee, or at a location whereby the employment was a contributing factor to contracting the disease, and to implement measures to minimise that risk. A minimisation measure may be to introduce a mandatory vaccination policy.

If you would like further information in relation to how the above matters may affect your business or assistance in drafting a mandatory vaccination/proof of vaccination policy, please contact us on (08) 9321 5451 or by email at office@bailiwicklegal.com.au .

By Mikhail Safarudin (Law Graduate)

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

Social Media Users Beware - Who is responsible for publications on social media?

Fri, 22 Oct 2021 04:11:24 GMT

In September 2021, the High Court held in Fairfax Media Publications Pty Ltd v Voller ; N ationwide News Pty Limited v Voller ; Australian News Channel Pty Ltd v Voller ( Voller ) that media outlets may be held accountable for comments made by third party users on their Facebook pages as publishers. By extension, it is foreseeable that companies and organisations may now be held to be liable in defamation for comments that are made by third parties on their social media platforms.

What is defamation?

In summary, defamation is the action of damaging the good reputation of someone, whether it be a company or individual, by communicating a defamatory meaning which may arise from the imputations of the publication.

An essential element of defamation law in Australia is that the material must be published. Publication can occur by a variety of methods of communication, including by spoken words or audible sounds, written or printed matter, drawings or photographs, signs or gestures, broadcast or telecast material, live theatrical performances or the display of objects in public.

Intention is not an essential element of defamation. A person or entity can be held liable for publishing defamatory material even if they did not intend to defame anyone. A person can also be held liable as the publisher of defamation if they failing to act or remove the defamatory material.

Voller case: the background

Dylan Voller was a young Aboriginal man who was mistreated in a Northern Territory youth detention centre. Mr Voller’s mistreatment was documented in an ABC Four Corners Report in 2016 which then sparked a Royal Commission into youth detention in the Northern Territory. After the Royal Commission commenced, Mr Voller began making media appearances to discuss his mistreatment. Different media outlets began sharing stories, interviews and videos of Mr Voller on their Facebook pages. Some Facebook users began leaving defamatory comments of Mr Voller on the Facebook pages of those media outlets that had shared content about Mr Voller.

Instead of suing the authors of those defamatory comments, Mr Voller sued the media outlets (Fairfax Media, Nationwide News and Sky News) arguing that they were responsible for publishing the defamatory comments .

Voller case: the argument

The Voller case was initially heard in the Supreme Court of NSW. The primary judge considered whether Mr Voller had "established the publication element of the cause of action of defamation against the defendant[s] in respect of each of the Facebook comments by third-party users". The media outlets argued that there was no case against them but the Supreme Court found in favour of Mr Voller and held that the media outlets held the burden of publishing the defamatory content.

This decision was appealed to the NSW Court of Appeal and then to the High Court.

The High Court dismissed the appeal and ultimately held that the media outlets were the publishers of the third-party Facebook user comments, affirming the decision made by the Supreme Court. In the reasons for their decision, the majority said that “each appellant by the creation of a public Facebook page and the posting of content on that page, facilitated, encouraged and thereby assisted the publication of comments from third-party Facebook users.” The High Court said that any degree of participation in the process of communication, however minor, makes the participant a publisher

Implications of the decision

The decision confirmed that media outlets have an active responsibility to monitor and censor comments that are damaging or inappropriate that are published on their Facebook pages.

Prior to the Voller decision, social media platforms (such as Facebook) did not provide users with the option to turn off comments made on their pages. However, Facebook has since modified their platform to provide users with greater control over comments published on their page.

What does this mean for you?

The effect of this decision will likely extend beyond media outlets and Facebook and apply to all people and organisations that maintain their own social media platforms. It is therefore important for all people and organisations that maintain their own social media platforms to ensure they tighten up their review mechanisms and make an active effort to regularly monitor what third parties are publishing on their pages.

By Danielle Williams (Associate) and Matilda Lloyd (Paralegal)

If you would like further information in relation to how the above matters may affect your business, please contact us on (08) 9321 5451 or by email at office@bailiwicklegal.com.au .

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

Bailiwick Legal newsletter September 2021 edition

administrator@heliummarketing.agency (Helium Marketing) — Wed, 20 Oct 2021 05:09:07 GMT

The Bailiwick Legal September 2021 newsletter is out! It's been a busy few months - find out what we have been up to...

Click here to read more.

Bailiwick Legal newsletter June 2021 edition

administrator@heliummarketing.agency (Helium Marketing) — Wed, 20 Oct 2021 05:07:17 GMT

Check out the Bailiwick Legal June 2021 newsletter and see what we have been up to these past months.

Click here to read more.

Should you open the Farm Gate to a Mining or Oil & Gas Company?

administrator@heliummarketing.agency (Helium Marketing) — Wed, 29 Sep 2021 06:51:28 GMT

Over the last few years there has been a noticeable increase in mineral exploration in Western Australia, particularly within the southwest region.

So, when someone out of the blue turns up at your door offering a deal for access rights, it is in your interest to seek legal advice. At Bailiwick Legal, we have assisted many land owners and farm businesses in such circumstances.

The following article provides some general advice about access and the rights of the farm land holders. The information in this article is general in nature and is not legal advice. We recommend that you speak to your legal advisor before taking any action.

Mining

First we are going to have a look at the mining industry, and what your options are when a representative of a mining company seeks access to explore for mineral resources on your land.

“Right of Veto”

Under the Mining Act 1981, the owner or occupier of land under cultivation (usually referred to as “arable land”) has what is commonly called a “right of veto”: that is, the right to politely say “No, you cannot explore on my land”.

This right is especially useful today as farmers are becoming increasingly wary about who is accessing their land and importantly, what biosecurity measures are proposed to be taken if access is granted.

If you decide to exercise your right of veto, you can feel secure in the knowledge that there is nothing more that a mining company can do, as there is no mechanism under the Mining Act to force you to allow access.

However, this right of veto only protects you if you haven’t previously given permission to a mining company to access and explore on your land. If you have already consented to access in the past, your rights are likely to be significantly limited.

Granting Access

Now, if you have no objection to a mining company having access to your land we advise that you negotiate an “access and compensation agreement”. If you take this course, you also need to be very careful.

You need to take a good look at the terms of any access and compensation agreement proposed and make sure granting access will not leave you disadvantaged or displace your right to farm the land. It is important to know what the mining company is looking for, what works it is proposing to undertake, the timing of those works and what compensation is being offered in return for access to the land. Also, question what biosecurity measures the mining company plans to adopt, and again importantly, how these activities are likley to impact on your production program.

The Mining Register

Under the Mining Act the Department of Mines is required to maintain a register of “mining tenements”. This register is a critical reference for ascertaining who owns a mining tenement and what land the mining tenement falls over.

If you have already granted a mining company access to your land it is likely that your land has been formally “added” to the register for the relevant mining tenement. If this is the case, then it will likely be easier for a mining company to obtain a mining lease (where there is a commercial ore body), and your right may be limited to negotiating further compensation.

The Price of Not Setting a Price

It is of some concern the amount of times I have been informed by landowners or occupiers of land, that they have simply allowed a company to explore on their land where no access and compensation agreement, or any agreement, has been reached. In such circumstances, land owners and occupiers may well be limiting or negating any rights they have under the Mining Act.

Oil and Gas

When considering exploration for hydrocarbons, the laws around access to farm land are significantly different.

Under the Petroleum and Geothermal Energy Resources Act 1967, there is no such thing as a “right of veto”, and if an agreement to access and compensation is not reached, one of the parties can commence proceedings in the nearest Magistrates Court to seek a determination of compensation.

In our experience, on most occasions the parties reach an agreement in relation to access, timing, compensation and biosecurity measures, to name a few of the key components to an access agreement. However, occassionally companies seeking to explore for hydrocarbons on farm land (by drilling an exploration well) have commenced an action in the Magistrates Court because an agreement to compensation has not been reached. All of these have settled in one way or another and none, as yet, have gone to a trial.

In 2015, APPEA (Australian Petroleum Production and Exploration Association), WAFarmers, the PGA and vegesWA negotiated a template Access and Compensation Agreement for use within the rural sector. This template is available from the organisations named and is a useful tool for farmers.

Not all companies use this template, and because the land owner and occupier do not have a “right of veto”, we recommend the obtaining of advice and assistance from your lawyer as soon as possible if approached.

Conclusion

The intricacies of the legal relationship between farmers and mining or oil and gas companies is substantial.

Given our experience with these agreements and dealing with such companies, the team at Bailiwick Legal are well placed available to provide you with guidance, and ensure that you are not only aware of your rights, but also to assist you in engaging your rights to best suit your interests.

So, if you are asked for access to your land by a mining company, or by company that wants to drill an exploration well (or even a production well), and you're wondering if you should agree to that access, pause and take a step back and then give us a call. We are here to help you with that decision.

High Court Decides on Workpac v Rossato

Mon, 16 Aug 2021 03:41:58 GMT

On 4 August 2021, the High Court unanimously overturned the Full Court of the Federal Court of Australia’s decision in Workpac Pty Ltd v Rossato [2020] FCAFC 84 and the precedent set in the Full Federal Court judgment of Skene v WorkPac Pty Ltd (2018) 264 FCR 536, being cases which dealt with the nature of casual employment.

In WorkPac v Rossato & Ors [2021] HCA 23 ( ‘WorkPac v Rossato’ ), the High Court found that Mr Rossato was a casual employee for the purposes of WorkPac’s Enterprise Agreement and the Fair Work Act 2009 (Cth), thus excluding Mr Rossato from entitlements, such as paid annual leave, that apply to permanent employees.

To read more about the Federal Court decision, you can view our article here .

Background

Mr Rossato was employed by WorkPac, a labour hire company, on a series of separate casual employment contracts between 2014 and 2018 and was recognised (and paid) as a casual employee under WorkPac’s 2012 Mining (Coal) Industry Enterprise Agreement.

After his last engagement with WorkPac had ended, Mr Rossato claimed he was a permanent employee rather than a casual and was therefore entitled to receive annual leave and personal leave entitlements. In particular, Mr Rossato claimed:

He had regular and ongoing employment, due to receiving a set roster a year in advance in addition to regular shift patterns;
His shift hours were standard and rarely deviated from his roster; and
WorkPac expected Mr Rossato would attend every shift.

Overall, the core issues before the High Court were whether Mr Rossato had a ‘firm advanced commitment’ that was an enforceable term of his contract, and whether the express terms of Mr Rossato’s written contracts of employment had primacy.

High Court Decision

The majority of the High Court rejected the notion that the employment relationship between the parties was to be established by analysing ‘the real substance, practical reality and true nature of that relationship’. In considering whether Mr Rossato had any ‘firm advance commitment as to the duration of his employment’ the Court identified that the appropriate method to assess this question was to look to the employee’s several written employment contracts.

In particular, the Court noted the express terms of Mr Rossato’s contracts, including:

Mr Rossato was engaged on several separate contracts for specified periods of time;
Mr Rossato could accept or reject any offer of work;
the contract could be terminated on one hour’s notice;
Mr Rossato did receive a casual loading; and
the specification of daily working hours could be varied.

Additionally, the High Court gave limited weight to two other factors which the Full Court of the Federal Court had deemed relevant:

WorkPac’s ability to terminate or vary Mr Rossato’s shifts and roster on one hour’s notice; and
Mr Rossato’s work obligations being consistent and organised well in advance in accordance with WorkPac’s rosters.

The Court ultimately concluded that the express contractual terms agreed between Mr Rossato and WorkPac did not evidence a ‘firm advance commitment’ which Mr Rossato was able to enforce. Whilst the Court said that Mr Rossato may have had a reasonable expectation of continuing employment, this did not amount to an advance firm commitment to ongoing employment and was not an enforceable term of his contracts.

Key Takeaways

The High Court’s decision reinforces the need for employers to have carefully constructed and drafted employment contracts. The Court gave primacy to the express terms of Mr Rossato’s written contracts and dispelled notions of “expectations” as enforceable contractual terms.

We recommend that employers review their employment contracts and seek advice in relation to the engagement of casual employees in particular.

To view the full decision please click here .

If you need assistance with your employment contracts, or seek further information in relation to your legal rights and responsibilities, please contact us on (08) 9321 5451 or by email at phil@bailiwicklegal.com.au .

Keep Calm and Cruise On – When Disappointment and Distress May Result in an Award of Damages

Tue, 08 Jun 2021 07:19:32 GMT

With the impacts of COVID-19 continuing to effect our everyday lives, Australia’s tourism industry has been forced to adapt more than most for the foreseeable future. This is particularly the case for those businesses that provide services aimed at entertainment, enjoyment and relaxation.

Damages for disappointment and distress

At law, a consumer may recover damages against a supplier for any loss or damage suffered by the consumer because of a failure to comply with consumer guarantees if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such failure.

Last year, the High Court handed down a judgment in Moore v Scenic Tours Pty Ltd [2020] HCA 17 which enabled individuals to successfully seek damages for ‘disappointment and distress’ arising from breaches of consumer guarantees.

Following this decision, there is an expectation that claims for disappointment and distress suffered as a result of disruptions to travel and tours caused by COVID-19 may dramatically rise.

Moore v Scenic Tours Pty Ltd

In 2012, Mr Moore booked a cruise through Europe for himself and his wife with Scenic Tours. Scenic Tours promoted the cruise as a luxurious, once in a lifetime cruise, which visited numerous destinations without passengers having to constantly unpack. Unfortunately, a major portion of the cruise (10 days out of the 14 days) were spent on a bus, with the passengers having to change ship twice due to unfavourable weather conditions and flooding. Needless to say, the cruise fell short of what was promoted by Scenic Tours.

As a result, Mr Moore, together with 1,500 other disgruntled passengers, sued Scenic Tours claiming damages arising from disappointment and distress. The claim against Scenic Tours comprised multiple breaches of the Australian Consumer Law, including that the tour supplied was not fit for purpose and was not of a nature and quality that passengers could reasonably expect.

Scenic Tours argued that the poor weather and flooding were out of its control and additionally that disappointment fell under a personal mental injury which meant that the Australian Consumer Law was not applicable.

The High Court determined that Mr Moore’s claim for disappointment and distress was not a type of personal injury damages and accordingly the Australian Consumer Law applied and Mr Moore was able to recover damages for the disappointment and distress he had suffered as a result of the failed tour.

Keep calm and cruise on

The Moore v Scenic Tours case demonstrates a tourism operator’s necessity to be well-versed in current legal principles regarding the Australian Consumer Law. By doing so, the operator will have a better chance at avoiding liability through any potential misleading and deceptive conduct.

Under the Australian Consumer Law, damages for losses suffered as a result of a failure to comply with the consumer guarantees are available if they are reasonably foreseeable. Such consumer guarantees include that the service be:

• provided with due care and skill;

• fit for any express or implied specified purpose; and

• provided within a reasonable time (when no time is set).

Although consumer guarantees cannot be contracted out of, suppliers of services should avoid making false statements and misrepresentations regarding the standard, value or quality of the service they are providing in advertising material.

Furthermore, operators should strive to ensure all clients are aware of potential conditions which may affect the service provided to avoid disappointment, such as ‘out of control’ events like unfavourable weather.

How we can help

In light of the recent High Court case and the constantly changing nature of COVID-19, tourism operators should be aware of the potential repercussions of failing to review and update their promotional material and terms and conditions.

At Bailiwick Legal, we can assist you by drafting or reviewing and updating your current terms and conditions as well as your contracts and promotional material.

If you would like further information in relation to how the above matters may affect you, please contact us on (08) 9321 5451 or by email danielle@bailiwicklegal.com.au.

Danielle Edwards (Associate)

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

What Happens to the Farm Once You're Gone?

Tue, 01 Jun 2021 08:28:56 GMT

You love your farm but what happens when you decide to retire or you pass away? Which simply raises the question:

“Once you’re gone, what happens to your farm?”

As a precursor to this Agribusiness article i remind readers that the below contents are general in nature and do not constitute legal advice.

The fact that you are here, reading, might mean you’ve asked yourself the same question, so in order to make the answer a little easier, we are going to have a look at how you can create a proper succession plan.

The Imbalance of Inheritance

Before we get to the practical side of succession planning, an explanation on the best mindset to have when approaching this delicate subject becomes necessary.

In what so many call “the good ol’ days”, a common theme for succession was that when a landowner died his property would pass on to the closest male relative of the family, inevitably excluding women from any land inheritance.

So, what exactly happened, for example, if the landowner had left a brother, a wife, and daughter?

The ownership of the estate would pass on to the brother, and the deceased’s wife and daughter would be left to fend for themselves, which created a problem. One that we are unfortunately still seeing some of the side effects to this day.

Our friends at CWA realised this problem some time ago and created accommodation for some of these displaced women. But that isn’t a long term solution and probably not one you want for your loved ones.

There are still many family businesses that haven’t addressed this issue and hopefully this article jogs you to acknowledge and take action on planning for a future that you may or may not be part of but are most likely to be able to influence.

The Danger of An Unfairly Written Will

As you can imagine, the practice adopted in the “the good ol’ days” led to a great deal of injustice, after all, farms are more than just land, they are also businesses, and having only the closest male relative inherit all the farm assets often created an uneven distribution of the deceased assets between the men and women in the family.

One of the ways in which society has addressed this inequity was to introduce the Family Provision Act 1972 (FPA), which gave women (and other family members generally), a right to contest an unequal distribution where they felt that they were treated unfairly by their deceased parent (or partner or grandparent).

However, the relevant test under the FPA does not hinge on someone’s subjective view of what is fair or unfair. The test is whether the deceased made “adequate provision from his/her estate for the proper maintenance, support, education or advancement in life” of the person contesting the distribution. As you will no doubt suspect, the meaning and interpretation of this phrase has itself led to many disputes.

The obvious danger is that the test is not necessarily straight forward and lends itself to further dispute and legal complication.

That is to say: A failed Succession Plan can easily lead to the destruction of family ties where siblings sue each other for property and fight over the property left by their parents or partner.

Before You’re Gone

In order to address the potential inequities and legal complications that can arise from not having a succession plan, or not having a properly balanced succession plan, it is important to recognise that the “farm” is not just a square of land, but is also a business, with all the different assets and complications that that come with running a business.

Farm businesses are often set up with different entities separately owning the land, the machinery and stock, and also quite often a completely separate entity operates the “business”.

So, to provide balance and to try to avoid possible conflicts that may arise with your departure, a common and efficient solution is to deal with your assets whilst you are still alive.

There are some advantages to this, one being that as you are still around, you can act as a mediator between your spouse and or children, and you have the ability to talk to them to try and manage expectations over wants and needs, before you depart.

In preparing any succession plan it is important to remember that everyone is different and will not necessarily have the same expectations on inheritance. This highlights a benefit of being able to discuss your proposed succession plan with your children whilst you still can. This can assist in structuring the distribution of your assets among your children.

Shared Ownership and Inheritance

Here’s another pickle for you:

Let’s say there are three brothers that inherited a farm together and have been working it for thirty-five years, now one of them is looking to retire and pass down his share to his descendants.

How can the farms assets be correctly passed down the succession line without creating complete chaos?

There may be a multitude of ways to achieve this, each dependent on the current structures of ownership and control of the farms, the business and assets and other imposts, such as taxation and duty costs. Attempting to find a low cost way to achieve the desired outcome can sometimes be a complex problem and solutions may require some expense and some time to implement.

Where trusts are involved, complications can arise due to the breadth of the pool of beneficiaries, who the appointors and guardians are, who controls the trustee if it is a company and tax and duty implications if property is to be moved out of the trust to another entity.

These issues are a reminder that when setting up the farm and its business, to do so with one eye to the future and the possibility that one or more of the business founders will pass on whilst the business is operating. On this, it is important to remember that for a partnership, where there is no written partnership agreement dealing with the situation, the death of a partner forces the partnership to end. This may also result in the partnership bank accounts being frozen.

Conclusion

If you are going to come out of this article with one takeaway, then let it be this: The best way to ensure the orderly and peaceful succession of your assets after your retirement or death is to look and plan ahead.

This is not the type of thing that you leave to the last minute, and it pays to build your agricultural business with its inheritor in mind, especially when you are not the sole proprietor.

I realise that the topic is large, but that’s because its complexity makes it hard to unravel all the minutia that comes with it.

So, if you have questions, or simply would like to learn more on the subject, I’ll be doing seminars on the subject of succession planning throughout the lower South West from May 27th through to the end of July.

Bailiwick Legal newsletter February 2021 edition

administrator@heliummarketing.agency (Helium Marketing) — Tue, 23 Feb 2021 06:34:41 GMT

Our first newsletter of 2021 is out! Check it to find out to see what we have been up to recently.

Click here to read more.

Residential Tenancies - End of the Moratorium

Tue, 23 Feb 2021 02:18:51 GMT

As most people will be aware, in response to the continuing impact COVID-19 was having on home renters, the WA Government introduced the Residential Tenancies (COVID-19 Response) Act 2020 (the Response Act), providing a moratorium on some evictions and all rent increases from 30 March 2020.

This moratorium is due to end on 28 March 2021, and below we provide some comments on the consequential effects that may occur once ordinary tenancy laws return and apply again.

The Residential Tenancies (COVID-19 Response) Act 2020

The Response Act implemented a moratorium on residential evictions during the emergency period (30 March 2020 to 28 March 2021) for those experiencing financial distress as a result of COVID-19 in addition to other amendments to the Residential Tenancies Act 1987. Amendments introduced by the Response Act included:

A landlord being restricted on increasing rent during the emergency period, even after renegotiating the lease with the tenant;
Fixed-term tenancies converting to periodic tenancies if the tenancies expire during the emergency period unless another fixed-term agreement is entered into;
Landlords not having to carry out non-urgent repairs if they themselves are experiencing financial hardship; and
The extinguishment of break lease fees if a renter experience COVID-19 related financial hardships.

Although rent rate increases and lease terminations are frozen due to the moratorium, it must be noted that renters may still be evicted or have their leases terminated on the basis of property damage, unsociable behaviour, or financial hardship not related due to COVID-19.

28 March 2021?

As the emergency period is coming to a close, landlords and tenants should be encouraged to discuss and negotiate their options and future rental plans. Once the emergency period ends, the above amendments will no longer apply. Instead, landlords will regain their powers to enforce rent payments and to terminate leases.

If a landlord is owed money from the tenant, the Residential Rent Relief Grant Scheme allows for a one-off payment of up to $4,000 for accrued rent arrears.

If a landlord sees fit to terminate the tenancy on the basis of unpaid rent or to seek a new tenant, notice requirements will need to be provided to the tenant.

Relevant notice period will be provided in the lease or under the Residential Tenancies Act 1987. As an example, for fixed-term agreements, the landlord must give at least 30 days’ notice of termination to the tenant. For periodic agreements, at least 60 days’ notice of termination is required.

If the tenant fails to vacate the premises after the appropriate notice has been provided, the landlord will have the right to apply to the Court for an order terminating the agreement and to regain possession of the premises by evicting the tenant.

What to consider if you are a tenant

With landlords soon to accrue rights to terminate leases and increase rents, tenants will have multiple options to consider as the emergency period comes to a close. These options will include:

renegotiating the current lease with your landlord; or
ending the tenancy on the 28th of March 2021 and either start a new lease or not take a new lease.

If a tenant chooses to terminate their tenancy, the tenant must give the landlord 30 days’ notice for a fixed-term agreement, or 21 days’ notice if the lease is under a periodic agreement.

As a tenant approaching the end of the emergency period, it is vital to understand tenancy laws regarding eviction. Even though the original tenancy laws will return on the 28th of March, it is still unlawful for a landlord to lock you out of your rental home or evict you without a Court order.

How Bailiwick Legal can support tenants and landlords

With the emergency period ending on the 28th of March 2021, both landlords and tenants should familiarise themselves with the legal changes which will occur. Due to the intricacies of property law and tenancy legislation, it is crucial for both tenants and landlords to seek legal advice before taking any steps to enforce rent, or terminate a lease.

Seeking legal advice will ensure you are not in breach of any laws, saving yourself potential legal fees, repercussions and strained relationships. At Bailiwick Legal we can assist you in:

Drafting new lease agreements for your tenant;
Negotiating lease agreements with your landlord or tenant;
Representation in legal disputes and Court actions regarding evictions and lease disputes; and
Understanding the leasing process and your rights as a landlord or tenant.

Richard Dewar (Solicitor)

If you would like further information in relation to how the above matters may affect you, please contact us on (08) 9321 5451 or by email danielle@bailiwicklegal.com.au . For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

The Fight to Combat Illegal Phoenixing

Wed, 10 Feb 2021 03:52:50 GMT

With the recent introduction of the Treasury Laws Amendment (Combating Illegal Phoenixing) Act 2020 (Cth) (Illegal Phoenixing legislation), the law has been heightened to restrict and punish those engaging in illegal phoenix activity.

The long-awaited legislation will enable the Australian Securities and Investments Commission (ASIC), the Australian Taxation Office (ATO) and insolvency practitioners to take increased action to combat this illegal activity, and will require directors to carefully consider their company obligations.

What is illegal phoenix activity?

Illegal phoenix activity involves the stripping and transferring of an entity’s assets to a new entity, thereby denying any creditors of the old entity access to those assets to meet unpaid debts. Essentially, this allows directors to continue operating the same business under a new entity without any, or with limited, liability.

There are a number of people usually involved in phoenix activity, including:

pre-insolvency adviser – an adviser who encourages phoenix activity by maintaining a network of ‘friendly’ professionals who assist companies in financial trouble;
valuer – a valuer who provides low valuations of the company’s assets;
liquidator – a liquidator who doesn’t investigate the affairs of the company, attempt to recover illegally removed assets or report their findings to ASIC and creditors;
dummy directors – fake directors appointed to the old company just prior to its failure or to the new company that aren’t involved in the running of either company; and
phoenix operators – the controlling minds behind the phoenix activity and the people that ultimately benefit from it.

Illegal phoenix activity has a significant impact on sub-contractors, creditors and employees that are left unpaid, as well as the broader community because the entity avoids paying tax and other entitlements which the government often subsidises. The Economic Impact of Potential Illegal Phoenix Activity Report estimates that phoenix activity costs the Australian economy $2.85 to $5.13 billion dollars annually, with between $31 to $293 million dollars in unpaid employee entitlements.

Illegal Phoenixing legislation amendments

The amendments to the Corporations Act 2001 (Cth) and Taxation Administration Act 1953 (Cth) arising out of the Illegal Phoenixing legislation aim to target those involved in illegal phoenix activity to prevent it from occurring.

Some key amendments are:

introduction of the creditor defeating disposition, a concept whereby the disposition of company property is a creditor defeating disposition if the consideration payable for the property was less than market value or the best price reasonably obtainable for the property and the disposition has the effect of preventing the property from becoming available, or readily available, for the benefit of creditors;
introduction of new phoenix offences and civil penalty provisions which carry the highest penalties available under the law to target those who conduct or facilitate phoenix activity (large fines and imprisonment up to 15 years);
provision of new recovery powers to ASIC and liquidators to improve their ability to recover assets lost through phoenix activity;
preventing directors from improperly backdating resignations or resigning where the company would be left with no directors to avoid liability or prosecution;
extending director penalty provisions making directors personally liable; and
expanding the ATO’s power to retain refunds where there are outstanding tax lodgements.

What this means for you

The Illegal Phoenixing legislation is a reminder of the importance to seek advice and assistance before entering into contracts for the provision of goods and services and transferring/selling a business to ensure you are protected from engaging in or being affected by illegal phoenix activity.

Danielle Williams (Solicitor)

Debt Recovery - a General Overview

Wed, 10 Feb 2021 03:38:06 GMT

Securing money owed to you can be time consuming, frustrating and ultimately futile if your options are not clearly understood. In extreme cases, an unpaid debt can lead to the failure of the creditor’s own business.

Debt recovery is the process of recovering unpaid debts through letters, email, phone calls and/or personal contact with a person who has neglected his/her end of the deal to pay for services or products you have supplied.

Bailiwick Legal are experienced in helping clients recover money that is owed by another business. We have a detailed understanding of the legal remedies available to you. We pursue both formal and informal channels of debt recovery until a satisfactory outcome is reached.

In addition, we help clients set up robust terms of trade, properly secure any debts, and provide options for fast and efficient recovery.

The Debt Recovery Process

The Process can be summarised as follows:

1. Contacting the Debtor

Before going straight to court, it is wise to first contact the debtor and ensure repayment of the debt is unlikely. The debtor may usually be contacted by phone, mail or email.

2. Letter of Demand

If the debtor fails to repay the debt, a letter of demand can be sent. The letter of demand will include the details of the debt and instructions for payment including expected time of payment. A letter of demand will state that the matter has now entered the debt recovery process and may potentially result in legal proceedings in a Court.

3. Start Court Proceedings

Commencing Court proceedings will be the next and final step of the debt recovery process. Commencing court proceedings involves several legal processes, time limits and details which must be fulfilled, which is why seeking legal advice early is highly recommended.

However before commencing Court proceedings, the relevant Court must first be identified. The amount of the debt you are seeking to recover will determine which Court will be engaged.

Generally:

claims less than $75,000 will be commenced in the Magistrates Court
claims between $75,000 and $750,000 are in the District Court
claims above $750,000 are in the Supreme Court.

The three Courts all have different processes and procedures, which we at Bailiwick Legal can explain in plain language and guide you through.

At Bailiwick Legal, we highly recommend seeking legal advice and representation when seeking to recover debts in the Courts due to the numerous rules and processes the parties must comply with to give yourself the best chance of recovering your debt.

4. Judgment

Once Court proceedings have been commenced there are many ways that judgment can be made against a debtor. A judgment against a debtor allows you to use the Court processes to then recover the debt.

Recovering Judgments

If the debtor fails to repay the debt after judgment has been awarded, you should commence enforcement proceedings to recover the judgment from the debtor using the Civil Judgement Enforcement Act procedures in the Court.

As an alternative, there are the below options:

Bankruptcy notice – if debtor is an individual followed by a Sequestration Order – (if the bankruptcy notice is not satisfied)
Statutory demand – if debtor is a company followed by a winding up petition (if the statutory demand is not satisfied)

Once judgment is awarded in your favour, we can advise you of the best avenue to recover the debt.

Summary

Debt recovery is a complex process, where obtaining legal advice is essential and vital to ensure all processes are complied with. Legal advice will ensure your situation is analysed to determine the best process to undertake and will assist your claim tremendously.

At Bailiwick Legal, we can:

Help you get back money you are owed through informal as well as formal debt recovery.
Help set up your credit and debt process, so they properly protect your business from bad payers, and provide options for fast and efficient recovery if required.
Help you reach a workable and commercial solution through negotiation and other alternative dispute resolution.
Draft letters of demand and other process documents to prompt recalcitrant debtors into action.
Apply to wind up a company, pursue director guarantees, or take other legal action needed to protect your interests.

If you would like further information in relation to how the above matters may affect your business, please contact us on (08) 9321 5451 or by email at office@bailiwicklegal.com.au .

By Luke Davies (Special Counsel)

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

20 Years Imprisonment and a $5,000,000 fine!: Industrial Manslaughter and You

Wed, 30 Dec 2020 02:06:26 GMT

Significant changes to Western Australia’s Work Health and Safety laws were passed in November 2020. Although not yet operational * the changes are coming and every business owner needs to be prepared.

But what does this mean for your family, business and farm? and why is the term “Industrial Manslaughter” getting thrown around?

The Work Health and Safety Bill

In 2011, Safe Work Australia developed a single set of WHS laws to be implemented across Australia, known as the ‘Model‘ Laws. For these Model laws to become binding the Commonwealth, States and Territories must separately implement them as their own laws.

Western Australia has two work safety law regimes, the Occupational Safety and Health Act 1984 (the OSH Act) and the Mines Safety and Inspection Act 1994 (the MSI Act).

The Work Health & Safety Bill 2019 (WA) (the Bill) brings these laws together whilst adopting much of the Model Work Health and Safety laws. The objectives of the Bill is said to provide a balanced and nationally consistent framework to protect the health and safety of workers, improve safety outcomes in workplaces, reduce compliance costs for businesses and to improve efficiency for regulatory agencies.

The Bill also includes other key reforms, such as a prohibition of insurance against fines imposed for a work health and safety offence as well as the introduction of a charge of industrial manslaughter.

Industrial Manslaughter

Previously, the term “industrial accident” was commonly used to describe an incident resulting in death at the workplace. However, this term implied no causality and no culpability, something that, while significant and terrible, indicated no error or reasonability to be assigned.

The government recognises that workplace injuries and deaths are mostly caused by, but not limited to, a combination of factors, including poor system design, bad behaviour as well as poor and improper choices.

The proposed industrial manslaughter laws are split into two different categories, one being a “crime” and the other a “simple offense”. The table below highlights some of the main points and differences.

An offence under the MSI Act and the OSH Act which resulted in a death of an employee would draw a fine of up to $500, 000.

There are few important things to note from the Bill:

1. More than one person can concurrently have the same duty.

2. The duties that apply cover persons conducting businesses or undertakings, officers as well as workers and any person at the workplace.

3. The duties appear quite loosely defined, such as, a duty to take reasonable care that a person’s actions do not adversely affect the health and safety of another person. Neither “reasonable care” nor “adversely affect” is clearly defined, which means it could be open to a number of different interpretations.

4. The test for whether or not a simple offence has been committed involving death at a workplace is simply whether or not a person had a health and safety duty and whether or not the person has failed to comply with that duty. Any knowledge or any mental element is not necessary for the evidentiary threshold to be passed.

Differences compared to Other Jurisdictions

While one of the intentions of the new laws is to bring harmony to work health and safety laws used throughout Australia, the reality is different. For example, in the Northern Territory, the maximum penalty for the offense of Industrial Manslaughter is life imprisonment and $10,205,000 while in Victoria, the maximum fine for a body corporate will be $16,522,000 once its proposed laws come into effect on 1 July 2020.

Additionally, as mentioned above, the Bill provides that an offence will have been committed if an individual, or organisation, has a health and safety duty and simply fails to comply with that duty and subsequently causes the death of an individual.

While jurisdictions like Victoria have proposed laws that consider conduct as negligent only if it involves “a great falling short of the standard of care”, the Bill does not provide for the degree of the failure to comply with a person’s duty before it becomes an offence, just that the duty wasn’t complied with.

One of the health and safety duties imposed on a person with “management or control of a workplace” is to ensure that the means of entering and exiting a workplace and anything arises from the workplace are without risk to health and safety of any person. This appears to set the bar relatively low when it comes to establishing whether or not there is a duty that can be breached. With no definition as to what properly constitutes a failure to comply with that duty, we may be seeing a claim of industrial manslaughter for any cause of death at a workplace.

Where to next with your work health and safety measures?

No two work environments are alike and, after considering all the variable factors and different management styles of different organisations, very few are even similar. Given the potential seriousness of these charges it is essential that every agribusiness from the local farmer to CBH reviews, updates and implements clear safety practices, policies and equipment. Documentation and Inductions will be essential to protect your business and yourself.

*At the time of printing this article the legislation was not operational. Please contact us for an update on this matter.

Disclaimer: This information is of a general nature only and is not intended to be a substitute for specific legal advice. It is recommended that these matters be discussed with your lawyer.

Bailiwick Legal newsletter December 2020 edition

administrator@heliummarketing.agency (Helium Marketing) — Thu, 03 Dec 2020 04:23:41 GMT

Our latest newsletter is out! Make sure to check it to find out what we have been up to recently.

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Bailiwick Legal newsletter October 2020 edition

administrator@heliummarketing.agency (Helium Marketing) — Sat, 31 Oct 2020 04:22:20 GMT

Our latest newsletter is out! Make sure to check it to find out what we have been up to recently.

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Federal Court Reinforces Need for Express Contractual Terms

administrator@heliummarketing.agency (Helium Marketing) — Tue, 21 Jul 2020 05:57:00 GMT

Recently, the Full Court of the Federal Court of Australia issued its decision in the matter of WorkPac Pty Ltd v Rossato [2020] FCAFC 84 (Rossato), a decision which sent shockwaves across businesses in Australia in relation to the engagement of casual workers.

In Rossato, the Full Court made several key determinations:

Firstly, that Mr Rossato was not a casual employee because both WorkPac and Rossato “had agreed on employment of indefinite duration which was stable, regular and predictable”;
Secondly, Mr Rosatto was, as a consequence of being a full-time employee, entitled to benefits under the National Employment Standards (under the Fair Work Act 2009), including paid annual leave, paid personal leave, paid compassionate leave and payment for public holidays (the FWA Entitlements)
Third, that WorkPac was not entitled to bring into account the payments it had made to Mr Rossato on the basis that he was a casual employee because “the purposes of those payments did not have a close correlation to the FWA Entitlements Rossato was seeking”.

The question of whether an employee is, according to law, a casual employee or a permanent employee called by a different label has plagued employers for decades. In many senses, the Full Court decision does not raise any new principles on this particular area of law.

Ultimately, the Courts will always look to the nature of the relationship as the deciding factor. Thus if you engage a person and call them a casual, but employ them indefinitely and on a regular, systematic and predictable manner, it is likely that a Court will determine that the employee is permanent and not a casual. In such circumstances the employee will then be entitled to the benefits associated with being a permanent employee.

In our view, the decision in Rossato reinforces the importance of considering the employer’s labour needs prior to the engagement of any additional staff, and also in ensuring that the engagement is reflected in a written contract of employment, which clearly and precisely sets out (amongst other things) the nature of the engagement, the expectations of the employer and the remuneration to be paid.

It is also important to ensure that where a casual loading is paid to a casual employee, the amount of the loading is stated in the contract and reference is made as to which entitlements the loading is being paid in lieu of.

Where additional staff are required but there is uncertainty as to the hours of work required or the duration of the engagement, employers should also consider whether it would be appropriate to engage the employee for a set period of time, for a particular task, or for a particular season, or a combination of these.

Finally, if you have engaged a “casual” employee and that person has had regular and systematic employment for a lengthy duration, and has an expectation that the employment will continue indefinitely, you should seriously consider whether that engagement should be converted to permanent employment.

If you need assistance with your employment contracts, or seek further information in relation to your legal rights and responsibilities, or assistance with COVID-19 related matters, please contact us on (08) 9321 5451 or by email at brian@bailiwicklegal.com.au.

What a relief – WA’s COVID-19 Code of Conduct is finally released

administrator@heliummarketing.agency (Helium Marketing) — Tue, 21 Jul 2020 05:55:00 GMT

In my previous article, ‘New Laws Supporting Tenancies Through COVID-19’, I explored the provisions of the then proposed Residential Tenancies (COVID-19 Response) Bill 2020 and Commercial Tenancies (COVID-19 Response) Bill 2020. These bills have since been passed as the Residential Tenancies (COVID-19 Response) Act 2020 and Commercial Tenancies (COVID-19 Response) Act 2020 respectively.

The Commercial Tenancies (COVID-19 Response) Act 2020 enabled the government to prescribe a code of conduct to ensure negotiations between landlords and tenants are carried out in good faith so agreements can be reached on temporary changes to small commercial leases during the moratorium period.

After much anticipation, today (29 May 2020) the government has released WA’s code of conduct (“Code”) under Schedule 1 of the Commercial Tenancies (COVID-19 Response) Regulation 2020.

What are the overarching obligations of landlords and tenants under the Code?

In negotiations for the purposes of the Code, landlords and tenants must:

Cooperate;
Act reasonably and in good faith;
Act in an open, honest and transparent manner;
Provide each other with sufficient and accurate information that is reasonable for them to provide in the circumstances for the purposes of negotiations; and
Not make onerous demands for information from each other.

Who does the Code apply to?

The Code applies to eligible tenants with:

an annual turnover in the financial year ending 30 June 2019 of less than $50 million; and
which qualify for the JobKeeper scheme or have experienced a decline in turnover of 30 per cent or more during the emergency period (30 March 2020 to 29 September 2020).

What does this mean for tenants?

The Code outlines a process for tenants to request rent relief from landlords. The request must be in writing and be accompanied by the following:

a statement by the tenant that:
1) the tenant’s lease is a small commercial lease; and
2) the tenant is an eligible tenant in relation to the small commercial lease;
sufficient and accurate information that evidences that the tenant is an eligible tenant in relation to the small commercial lease; and
sufficient and accurate information that evidences the reduction in the tenant’s turnover that:

is associated with the business conducted at the land or premises that are subject of the small commercial lease; and
the tenant has experienced during the emergency period.

What does this mean for landlords?

Landlords are required to respond within 14 days of receiving a request for rent relief with an offer of rent relief. The following principles are to be taken into account when determining the offer of rent relief (unless the landlord and tenant agree otherwise in writing):

an offer of rent relief must apply to the emergency period;
the offer of rent relief must be at least proportionate to the reduction in the tenant’s turnover that is associated with the business conducted at the land or premises that are the subject of the small commercial lease and the tenant has experienced during the emergency period; and
not less than 50% of the rent relief is to be in the form of a waiver of rent, unless the landlord has the financial capacity to provide more than 50% and the tenant’s capacity to fulfil the tenant’s ongoing obligations under the small commercial lease would be compromised otherwise then more than 50% of the rent relief is to be in the form of a waiver of rent.

When will deferred payments be due?

Unless otherwise agreed between the parties, any deferred rental amount must be repaid in equal installments over the greater of:

The balance of the lease term; or
A period of not less than 24 months.

Tenants should be given the opportunity to extend their leases for an equivalent period of the rent waiver and/or deferral period, unless the extension would be inconsistent with any written agreement or contract, such as any head lease.

What if an agreement cannot be reached?

If an agreement cannot be reached under the Code, the Small Business Commissioner can mediate or conciliate. If disputes cannot be resolved through conciliation, they can be taken to the State Administrative Tribunal.

What should you do?

In light of the release of the Code, it is crucial that tenants and landlords know their rights and obligations prior to entering into negotiations for rental or other relief. We recommend parties seek advice as to the Code’s application to their specific circumstances before negotiating and agreeing to revised lease terms.

If you would like further information or assistance in relation to the above, please contact us on (08) 9321 5451 or by email at danielle@bailiwicklegal.com.au.

By Danielle Williams (Solicitor)

Bailiwick Legal newsletter June 2020 edition

administrator@heliummarketing.agency (Helium Marketing) — Tue, 02 Jun 2020 07:39:31 GMT

Our latest newsletter is out! Make sure to check it to find out what we have been up to recently.

Click here to read more.

Bailiwick Legal newsletter April 2020 – COVID-19 special edition

administrator@heliummarketing.agency (Helium Marketing) — Fri, 29 May 2020 05:59:48 GMT

Our latest newsletter is out. This is a special edition focused on the evolving COVID-19 situation. You will find articles, legal services we offer, and links to videos related to issues arising out of COVID-19. We hope it is informative and will be of assistance to you.

Bailiwick Legal newsletter April 2020 edition

administrator@heliummarketing.agency (Helium Marketing) — Thu, 02 Apr 2020 07:41:00 GMT

Our latest newsletter is out! Make sure to check it to find out what we have been up to recently.

Click here to read more.

Bailiwick Legal newsletter March 2020 edition

administrator@heliummarketing.agency (Helium Marketing) — Mon, 02 Mar 2020 07:44:08 GMT

Our latest newsletter is out! Make sure to check it to find out what we have been up to recently.

Click here to read more.

Bailiwick Legal newsletter February 2020 edition

administrator@heliummarketing.agency (Helium Marketing) — Wed, 05 Feb 2020 07:14:04 GMT

We are pleased to share the Bailiwick Legal February 2020 newsletter for the latest Bailiwick Legal news!

In this first edition of the year we celebrate another win as the Supreme Court of Appeal upholds a decision over an easement dispute. We are also pleased to share an article by our esteemed colleague Kondwani Mwenda of FMD Legal, and talk about the necessity of a social media policy for your business. Plus share about what we have been up to and some great events coming up.

Is a social media policy necessary for your business?

Thu, 30 Jan 2020 03:57:34 GMT

This is a subtitle for your new post

Regardless of who you are or the size of your business, the widespread and exponential use of social media in the last few years means that social media has significant potential to affect you and your customers. The business world is rife with stories where a company’s reputation has been adversely affected by a single inappropriate post on social media linked to the company.

Is a Social Media Policy Necessary?

Like most other policies and procedures found in the workplace, some of the benefits to having a social media policy in place include:

Letting employees know what is expected of them;
Maintaining a common standard throughout the business where employees are treated equally;
Assistance with decision making; and
Providing guidance for dealing with complaints and disputes when they arise.

There has been an increasing number of disputes between employers and employees in relation to an employee’s use of social media. In the recent case of Waters v Mt Arthur Coal, the employee made an application for unfair dismissal after his employment was terminated for posting incorrect work related information on Facebook, affecting hundreds of other employees. While the post was made outside of work hours and on his personal account, the Commission found in the employer’s favour and determined that the post was related to work matters and was in breach of an existing workplace policy.

How Does This Apply To You?

While the case above provides that it is possible to terminate an employee due to social media conduct, factors employers need to consider before doing so include, but are not limited to:

whether or not any damage or conflict occurred within or to the workplace;
if the conduct damages the employer’s interest or working relationships;
the employee’s past performance;
the impact social media posts have on the employer’s business;
whether or not the employee was aware of the social media policy; and
the accessibility of the social media policy.

While a breach of a known workplace policy would give an employer much stronger reason to consider termination, the employer should still provide procedural fairness within any investigation and subsequent disciplinary action, including termination. In the case of Singh v Aerocare Flight Support Pty Ltd, the employee was found to have been wrongfully dismissed after his offensive comments on Facebook were found to have been sarcastic in nature but the employer had failed to properly research the matter before dismissing Mr Singh.

Things to Consider

Workplace policies and procedures will likely vary between businesses and industries, for example an office environment will likely have different, and generally less onerous, safety procedures than you would consider for other more high risk environments such as a mining or construction sites.

The following are some things to consider when reviewing or creating a workplace policy:

Clarity – policies should be in language that is easy to understand, explain what you expect from your employees and the consequences of acting in breach of the policy.
Awareness – all employees should know you have these policies and where to find them. When bringing onboard new employees ensure that you have provided them with access and copies, and it is best practice to require acknowledgement from new employees that they have read and understood the policy.
Training – provide training to employees on all key policies, different levels of employees may require training on different policies, for example a manager may require training on managing a complaint, however all staff may require training in relation to general health and safety risk and issues.
Review (and Update )– keep policies up to date with changes in your business, relevant laws, accepted practice in your industry and with other policies and procedures in your business with regular reviews and updates.

When it comes to workplace policies you must ensure that they are reasonable and purposeful, and therefore don’t do more harm than good to the culture and moral in your business, and that they are not contrary to any legislated requirement, including the Fair Work Act.

Where Next With Your Social Media Policy

Not all social media polices are created equal.

As mentioned above, the type of social media policies and its contents will differ from business to business. Using a standard template form for a social medial policy will rarely be as effective as engaging a professional to draft or review your policy. Your social media policy has to reflect the nature of your business, including its employees, marketing strategies and client engagement strategies amongst other things.

If you would like assistance generally in employment matters, please contact us on (08) 9321 5451. For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

Is your wealth protected – Divorce and separation (by FMD Legal)

Thu, 30 Jan 2020 03:32:03 GMT

The sting of separation and divorce has no equal.

There are thousands of quotes that encapsulate the financial consequences of divorce, and none more brutally honest than:

“Divorce is the one human tragedy that reduces everything to cash”. Rita Mae Brown; and
“Divorce looks like one of the fastest ways to destroy your wealth”. Jay Zagorsky

Married couples in Australia have a 40 to 50 percent chance of divorcing. The latest data published by the Australian Bureau of Statistics shows that:

in 2018, there were 119,188 marriages registered and 49,404 divorces granted; and
the median duration from marriage to divorce was approximately 12.3 years.

The data does not capture:

married couples that separated but elected not to divorce; and
the number of de facto relationships commenced and brought to an end.

The reality is that divorce (separation for de facto couples) has a real and detrimental impact on wealth. Those that fall in the above statistics are left exposed. What can they and their families do about it?

Protecting your wealth against divorce or separation

There are several mechanisms that can be utilised to protect wealth under federal and state laws.

In the context of separation and divorce, one such mechanism is a financial agreement, more commonly referred to as a pre-nuptial agreement.

Although nearly two decades have passed since the inception of financial agreements in Australia, they remain an underutilised asset protection and estate planning mechanism.

Consequently, men and women fail to protect or conserve their hard-earned wealth, and that of their families, when divorce or separation befalls them in the absence of a financial agreement.

Characteristics of Financial Agreements

What does a financial agreement do?

A financial agreement ousts the Family Court’s power to determine property settlement and maintenance disputes between married and de facto couples.

In the absence of a financial agreement, the Court’s power to determine the couple’s affairs is engaged when one of them makes a competent application regarding:

the division of the couple’s wealth (“property settlement”); and
the maintenance of members of the couple, including their current or future children (“maintenance”).

The Court’s reach is not limited to the wealth of the couple. It can extend to the wealth of related and unrelated third parties, such as family members, business partners and their respective entities. This is because the Court has the power to divest third parties of their rights in specific circumstances.

Commonly, a member of the couple in such disputes, asserts that assets, or a portion of them, held by a third party are, for all intents and purposes:

owned by one or both parties;
held on trust for one or both parties;
has historically been a financial resource for the couple; and
will be, or continue to be, a financial resource for the other member of the couple.

In some cases, neither member of the couple may have made any measurable or discernible contributions to the acquisition, improvement or maintenance of the wealth of third parties, the subject of the dispute.

Parties seeking to avoid the above, and achieve certainty or asset protection, should enter into financial agreements so that they oust the Court’s abovementioned power. This can be done at any point prior to, during or after marriage (or a de facto relationship).

Consequently, financial agreements are a critical component to asset protection and estate planning. They manage risk when effectively used and fend off challenges from others.

For example:

where parents wish to transfer their wealth to their child and/ or grandchildren, without losing it to someone outside that group. The parents could require, without duress, pressure or acting unconscionably, their child and significant other to enter into a financial agreement prior to marriage, commencing a de facto relationship and, importantly, the proposed transfer of wealth.
where former spouses or partners with complex financial structures, for their mutual benefit, remain tied together, and one or both parties enter new relationships (introducing blended families). The former spouses can protect their joint wealth by entering into financial agreements with their new partners.

The requirements of a financial agreement?

A financial agreement must be in writing, made between parties and deal with:

how the current or future wealth of both parties is to be dealt with. For example:

(a) assets and resources brought into the relationship by the parties;

(b) inheritances; and

how the current or future maintenance of the parties or their children will be catered for; and
any other matter incidental or ancillary to maintenance or wealth of the parties.

Accordingly, couples can agree, record and predetermine their financial outcomes without the intervention of the Court.

When is a financial agreement binding?

For a financial agreement to be binding (under Commonwealth legislation), the following must be satisfied:

before signing the agreement, the parties must receive specific independent legal advice about the financial agreement;
either before or after signing the agreement, the parties must receive a signed statement from their respective lawyers stating that the advice referred to above was provided;
the parties must exchange the said statements; and
The agreement must not been terminated or set aside by the Court.

Can financial agreements be changed?

A financial agreement cannot be changed unless:

the parties agree to:

(a) terminate the original by executing a termination agreement. The power of the Court to determine property and maintenance disputes is thereafter revived; or

(b) execute a new financial agreement which contains a clause terminating the original.

Notably, parties that enter into a financial agreement solely under Western Australian legislation and never intend to marry, but subsequently marry, need to be aware that their agreement terminates upon marriage.

If they still require the protection of a financial agreement, they should enter into an agreement under Commonwealth legislation and, advisedly, well prior to their marriage.

Can financial agreements be set aside?

The Court can set aside a financial agreement upon application in limited circumstances, including where:

the agreement was obtained by fraud;
the agreement is void, voidable or unenforceable. Where a party has been subjected to:

(a) duress;

(b) undue influence; or

it is impracticable for the agreement, or a part of the agreement, to be carried out; or
The purpose of the agreement was to defraud or defeat creditors.

Expert advice

Financial agreements must be drafted with the utmost care and in accordance with the requirements of the law.

It is only in those circumstances that financial agreements achieve their intended goal of ousting the Court’s power and consequentially facilitating effective estate planning and protecting wealth.

In addition to financial agreements, parties must execute other documents that work harmoniously with financial agreements such as Wills, enduring powers of attorney and commercial agreements in relation to the operation of intergenerational assets such as farms and businesses.

The content of this article is a brief summary and overview only. It does not constitute legal advice. Accordingly, you must seek legal or other professional advice before acting or relying on any of the content.

The gate remains closed! The Court of Appeal upholds a win for common sense in an easement dispute

Wed, 18 Dec 2019 05:32:18 GMT

Bailiwick Legal has won again in the long running dispute over neighbourhood trespass and the true purpose of an Easement

The trial at first instance

In March 2019, the Supreme Court found that the terms of an easement used by a neighbour to access their dominant tenement (neighbouring land) and then to travel to on to other parts of her farm (with separate titles), was a misuse of the easement and was a trespass on our client’s land.

The full article regarding the trial at first instance can be read here.

The appeal

The neighbour appealed this decision to the Court of Appeal, challenging the Supreme Court’s conclusions and contending that the Court of Appeal should find that she is allowed to access the rest of her farm via the easement and through the dominant tenement and that she did not trespass on our client’s land.

Our client’s position was unchanged, that the deed of easement did not provide for the dominant tenement to be a thoroughfare to other parts of the neighbour’s farm land (such land having separate titles).

The decision

Earlier this month, the Court of Appeal handed down a unanimous decision, holding that on its proper construction, the deed of easement does not provide for access to other parts of the neighbouring land owner’s farm beyond the dominant tenement. The Court of Appeal further held that the neighbouring land owner’s use of the easement to access those other parts of her farm was a trespass on our client’s land.

This decision affirms the long-established authority that the terms of an easement typically provide access to the dominant tenement only, and do not provide passage to other areas of land adjoining the dominant tenement, even where that adjoining land is owned by the same person.

Bailiwick Legal were proud to be instructed on this matter and are extremely pleased to obtain a positive result for our client once again.

If you would like further information in relation to the above or have a legal issue you would like to discuss, please contact us on (08) 9321 5451 or by email at danielle@bailiwicklegal.com.au.

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

Bailiwick Legal newsletter December 2019 edition

administrator@heliummarketing.agency (Helium Marketing) — Thu, 05 Dec 2019 07:46:41 GMT

Check out the Bailiwick Legal December 2019 newsletter for the latest Bailiwick Legal news.

Enjoy!

Bailiwick Legal newsletter November 2019 edition

administrator@heliummarketing.agency (Helium Marketing) — Fri, 15 Nov 2019 07:15:41 GMT

Check out the Bailiwick Legal November 2019 newsletter for the latest Bailiwick Legal news.

In this edition we continue our series of employment law articles with the essentials you need to include in an employment agreement, and share some insight into the debt recovery process.

Enjoy!

What should you put in a written agreement?

Tue, 29 Oct 2019 05:16:55 GMT

An employment agreement exists within every employment relationship, however, without a written employment agreement, uncertainties may arise as to the rights and obligations of both parties. Having assisted many clients with employment related disputes, usually at the end of the relationship, we understand how important it is that both parties are clear about their rights and obligations from the beginning.

Is a written employment contract necessary?

We believe that your employees are a great asset to your business; they can ensure your business goes from strength to strength. However, with any opportunity there is also risk. An employee that does not perform well will eat into your time and any profits, may threaten your business’ reputation, and may leave you vulnerable to the risk of legal action by a third party.

Very few businesses would make a major investment in equipment without a written agreement in place to help protect the business in case the equipment is faulty or doesn’t do what it should, so why take this risk with your staff?

First and foremost, by writing down your expectations and requirements, as well as how the parties should deal with any problems that may occur, you are making sure both you and your employee are on the same page. Without a written contract, oral and implied terms may be relied upon by either party, bringing uncertainty into the relationship.

This article in our Bailiwick Workplace Series will provide guidance about some of the terms that we recommend to include in your written employment agreements. This is of course not exhaustive and we always recommend that a legal professional draft or at least review your employment contract prior to proving it to your employee.

Key Terms to think about:

1. Remuneration

One obviously important term required is to set out what an employee will be paid.

Minimum remuneration may be set by an award or industrial agreement, or you may need to refer to the applicable national or State minimum wage. If you are unsure as to any minimum terms of employment, including minimum wage, there are resources available to assist you through both:

the Fair Work Ombudsman website: https://www.fwc.gov.au/awards-and-agreements/minimum-wages-conditions, for federal system employees; and

the Department of Mines, Industry Regulation and Safety: https://www.commerce.wa.gov.au/labour-relations, for State system employees.

Many of the queries we receive involve minimum remuneration rates and how these are calculated, and we are happy to assist if you find this issue confusing or want reassurance that you are meeting your minimum obligations.

2. Role and Responsibilities

We are often approached by employers who are involved in a dispute about why an employee was dismissed. One reason that is often cited is that the employer believes that the employee has not performed their role to a satisfactory standard. However, if the employee and employer are not clear in the beginning as to what is expected of the employee, it can then be difficult to justify a dismissal based on unsatisfactory performance.

Even if a dispute does not ensue, an employer will struggle to achieve the best from an employee if that employee is not clear on the scope of their role.

If the role changes over time, an amended agreement or position description should be prepared.

3. Restraint of Trade/Confidentiality

How important is protecting information, ideas and trade secrets (such as intellectual property) to your business? This is a question you should be asking prior to engaging an employee to work within your business.

A confidentiality clause can protect your business by ensuring that employees keep your information, including intellectual property, private and confidential throughout the employment and after the employment relationship ends.

A properly drafted restraint of trade clause can prevent an employee from performing work or from joining a competitor or becoming a competitor after the cessation of their employment. It is important to note here that there are limits on the enforceability of restraints based on how reasonable the restraint is in the circumstances. These limits are often around the geographical area of restraint and how long the restraint is for.

4. Notice of Termination

Another important clause to include in an employment contract is the period of notice required to terminate the contract. There are minimum requirements set by legislation, awards and enterprise agreement, and your employment contract cannot provide for less notice than these minimum requirements. The minimum notice period an employer must give is based on the employee’s continuous service with the business.

An important matter to note is that, if no period of notice is specified in an agreement, a ‘reasonable notice’ notice period will be implied into the contract. Even though a minimum notice period exists in legislation or an award, any implied notice period may be longer. The employee’s notice period may not automatically fall back to a minimum requirement if an agreement is silent on the issue of notice.

What is ‘reasonable’ can vary in different situations. If an employee wishes to be paid for a ‘reasonable notice’ period, the employee’s idea of reasonable may well be very different from their employer. As you may imagine, such a difference in opinion can lead to a costly and time-consuming dispute.

In your employment contract you should consider notice periods applicable under different circumstances, for example who is giving notice, is the termination a result of a breach of the agreement, or because the employee has acted in a way so serious that the employer may be justified in terminating the employee’s employment immediately and without notice.

Where next with your contract drafting?

Not all written employment agreements are created equal. At Bailiwick Legal we assist employers to avoid unnecessary risks when engaging an employee or varying the terms of employment. Having a well-drafted comprehensive contract, with clear terms, goes a long way to avoiding future litigation and disputes and maintain a happier workplace.

The five clauses mentioned in this article are just some of the employment terms to consider, however, they are by no means exhaustive.

Every employment situation is different, which is why using a standard template will rarely be as effective as engaging a professional to draft or review your employment agreement. Your employment agreement should reflect your business, your priorities and your unique relationship with your employee.

For further information in relation to employment contracts for your business or other assistance with your employment matters, please contact us on (08) 9321 5451. For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

The Debt Recover Plan - Part 1: Your first point of call

Fri, 25 Oct 2019 05:47:02 GMT

Is your business losing money because clients don’t pay on time or at all? Is your debt recovery process failing to recover the money owed to you? If so, Bailiwick Legal can help.

With the new financial year having just commenced and the end of the calendar year right about the corner, this time of the year is a common time for debt recovery action to be taken. However, businesses should be mindful as to the approach taken to recover due and owing monies and the quality of debt recovery assistance sought.

Who are you going to call?

When monies become due, a business’s first point of call is usually to a debt collection agency. The agency may make a few phone calls and send a few emails/letters, but if the debtor still does not pay, the agency will often then refer the business to a lawyer to commence legal proceedings.

So why not engage a lawyer from the start?

There are many advantages to engaging a lawyer from the start to recover the debt:

The quicker you pursue your debtors, the more likely you are to collect the full amount of the debt;
There is a limitation period for the collection of debts, after which the debt becomes statute barred, so time is somewhat of the essence;
Debt collection agencies usually have no ability to commence legal proceedings on your behalf, so they are simply a ‘stepping stone’ in the debt recovery process; and
You will more often than not have to pay a percentage of the debt to the debt collection agency as a commission for their services, which could end up being more expensive than a lawyer’s legal costs, depending on the circumstances.

At Bailiwick Legal, we have a wealth of experience in debt recovery actions. We can assist you from start to finish and can tailor the process to your specific situation.

First things first – issuing a Letter of Demand

Our first step when recovering unpaid monies is to issue a formal Letter of Demand to the debtor. This can be a relatively inexpensive and effective way of recovering a debt.

The Letter of Demand will be a last written demand for payment of the debt to be made within a specified time period. It puts the debtor on notice that if they fail to comply with the terms of the Letter of Demand, they risk further action being taken against them, including the commencement of legal proceedings.

A Letter of Demand can be effective because it:

Is a formal written document;
Is coming from a lawyer;
Requires strict compliance with the terms therein within a specified time period;
Notifies the debtor that if legal proceedings are commenced, such proceedings will be listed on the debtor’s credit report which may effect the debtor’s ability to obtain finance; and
Gives the debtor a final opportunity to pay the debt before further interest and legal costs are incurred, for which the debtor may be liable.

If the Letter of Demand is not complied with, there are a variety of options available to the business to recover the debt.

So, if you find yourself in one of the below situations, get in contact with us to find out how our services can be of benefit to you:

You have monies that are due and payable to you;
You have a debt that remains outstanding despite numerous follow ups with the debtor (including from a debt collection agency); or
Your debt collection agency is advising you that the next step is to commence legal proceedings/seek assistance from a lawyer.

If you would like further information in relation to how the above matters may affect your business, please contact us on (08) 9321 5451 or by email at danielle@bailiwicklegal.com.au.

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

Close the gate! Another win for Bailiwick Legal

Tue, 08 Oct 2019 05:41:36 GMT

In a win for common sense, Bailiwick Legal has successfully argued that the true nature and purpose of an Easement granted is to allow specific passage and not just free access to all.

The Supreme Court dispute between farm land neighbours centred on the terms of an access easement over our client’s land. This was used by the neighbour to access the dominant tenement, but then also as a short cut to other parts of the farm owned by the neighbour.

The neighbour was opposed to closing boundary gates on the easement, despite this being an express term. They also refused to leave a midway gate as they found it, contrary to farming protocol.

The Court found, following near 400 years of authority that the terms of the easement provided access to the dominant tenement only and did not provide for passage to other areas of the farm. The Court also determined that in this case, misuse of the easement was a trespass on our client’s land and awarded damages to be paid to our client for such trespass.

In its case, the neighbour complained that their access across the easement was obstructed by gates which they had to open. On this issue, the Court determined that gates can be put across an easement by the owner of the underlying land provided that they do not substantially interfere with the lawful use of the easement.

When an easement exists, it is important for all parties to know and understand the rights and obligations that arise under the grant of the easement and ensure that their actions are lawful and consistent with the terms of the easement.

Given that easements are always on someone else’s land, it is perhaps just as important to be understanding and respectful of your neighbour whose land the easement crosses.

If you would like more information on this or would like to discuss your issue, please contact Philip Brunner at Bailiwick Legal – phil@bailiwicklegal.com.au or call (08) 9321 5451.

Does your employee have the right to dictate their conditions ?

Fri, 27 Sep 2019 05:56:01 GMT

A recent Fair Work Commission decision illustrates the importance of responding reasonably to the radically altered situation of an employee.

When a staff member is faced with drastic changes in their personal life, it’s important that as an employer you respond with kindness and empathy, but does your employee have the right to dictate their conditions ? In a recent case the Fair Work Commissioner found that the employer had made a clear attempt to negotiate with the employee and that when a suitable arrangement could not be found, the employer had not been unreasonable in its refusal to meet the employees requested hours and leave arrangements .

Phillips v Integrated Medical Solutions Group (IMS) – https://bit.ly/2n1KBVh

Ms Phillips, a 24-year-old medical receptionist, alleged she had been unfairly dismissed when her employment ceased due to the inability of her employer to accommodate her request for a change in hours.

Phillips was a full-time employee when her mother became ill and then passed away, leaving Phillips as carer to her 11-year-old sister. Phillips began a period of unpaid leave and claimed that during a meeting with HR she was told that she would “always have a job to return to”, and upon her return to work, she could work from 10:00am-2pm, Monday-Friday, instead of her usual hours of 8-6pm. The head of HR disputed this ‘promise’ claiming she advised Phillips the request would be subject to the approval of the practice owner.

Three months after her mother’s death, Phillips advised the head of HR that she was prepared to return to work under the condition that her hours would be changed (as above), to allow her to drop off and collect her sister from school, and that she would need to take one week off work each school holidays to care for her sister, and three weeks off over summer – stating that she had suggested she could take these holidays as unpaid leave. Countering this, the head of HR told the Commission that Phillips had informed her she would require all of the school holidays off work, and had not offered to take this as unpaid leave. Ms Phillips was advised that the employer could not accommodate her requests but could offer her alternative reasonable hours from 8:30am to 2:30pm, Monday to Friday, and she would be required to apply for annual leave, as per policy, for the school holiday periods. Alternative, Phillips was offered “casual employment on the standard terms.” She was also informed that she could return to work in her usual, full-time role. Phillips still wasn’t happy with these options and kept claiming the verbal ‘promise’ made by the head of HR when her mother first became ill. The head of HR, who was sympathetic to Phillip’s situation, outlined that there clearly was a position for Phillips, in fact she’d been given three different options, they just couldn’t operate around Phillip’s proposed hours. If Phillips was unable to take on one of these options, the head of HR said IMS would assume that Phillips “did not intend to return to work”.

On 2 May, Phillips was given until May 8 to respond if she wished to return to work however the employee refused to compromise. The head of HR prepared a separation certificate at Phillips’ request, recording the reason for the separation as, “employee ceased work voluntarily” however Ms Phillips did not agree and argued that she had been dismissed at the employers initiative and not resigned.

The decision.

Commissioner Hunt noted the many emails sent by Phillips stipulated that she was available to work between 10:00am and 2:00pm only. Hunt found that the practice had, “repeatedly, reasonably and professionally corresponded” with Phillips about the reduced working hours it could accommodate, and, alternatively, “invited Ms Phillips to return as a casual employee.” As a result, the Commissioner found that there was no conduct on IMS’s part that amounted to a dismissal on IMS’s initiative. Phillips, it was found, “had a substantive job to return to and she chose not to accept the respondent’s reasonable and accommodating hours of work given her personal circumstances.”

Ultimately, Commissioner Hunt felt that the practice had not been unreasonable in its refusal to meet Phillips’ requested hours and leave arrangements, and had responded appropriately to Phillips’ requests.

Lessons for employers

Phillips’ case is illustrative of the importance of employers taking reasonable steps to try to accommodate an employee’s changed circumstances, but that they are allowed to factor in the business’s operational needs. Perhaps most importantly, this case demonstrates that the best approach is always to engage in frank and open dialogue with an affected employee, as well as:

• Offering alternative working arrangements that are reasonable for both parties.

• Affording the employee an opportunity to discuss suitable working arrangements.

• Advising the employee of decisions regarding their employment and affording them an opportunity to respond.

The case also emphasis once again the importance of keeping a record of all HR related conversations with staff members either by writing memo’s or in a confirmation email.

If you would like further information in relation to how the above matters may affect your business, please contact us on (08) 9321 5451

Bailiwick Legal newsletter September 2019 edition

administrator@heliummarketing.agency (Helium Marketing) — Thu, 12 Sep 2019 07:17:38 GMT

Our latest newsletter is out! Check out the Bailiwick Legal September 2019 newsletter for news on what we have been up to.

In this edition we start a new series of employment law articles with ‘5 things to consider when hiring a new employee’. We also discuss the need for a solid social media policy for your workplace, and continue on with part 2 of our series on Wills, estates and beneficiary rights.

PLUS we are hosting a free seminar on planning your will and estate on 25 September! Details and registration link are in the Upcoming Events section of the newsletter. Don’t miss out!

Wills, Estates and Beneficiary Rights – Part 2: Beneficiary rights

Mon, 09 Sep 2019 07:11:17 GMT

Part one of this series looked at beneficiary rights in relation to Wills. In part 2 of the series we will focus on disputes in relation to estates.

Here in Western Australia, disputes relating to the division of assets in an estate are governed by the Family Provision Act WA (“the Act”).

Who can claim for further provision in WA?

The Act sets out the class of persons who are entitled to bring a claim against a deceased person’s estate. This class is limited to:

Spouses (including a de facto partner)
former spouses or de facto partners if they were receiving (or entitled to) maintenance from the deceased
children
step-children, in some circumstances
grandchildren, in some circumstances
the deceased’s parents

How does the Court determine whether further provision ought to be made for a claimant?

If you fall within the class of potential claimants, then the Court may change the disposition of a deceased’s estate to make further provision for you. In determining whether a change ought to be made, the Court must carry out a two stage process:

The first stage involves determining whether the disposition of the deceased estate by Will makes adequate provision from the estate for the proper maintenance, support, education or advancement in the life of the claimant, and
If the Court determines that adequate provision has not been made for the claimant, then the Court may order such provision as the Court thinks fit to be made out of the deceased’s estate for the proper maintenance, support, education or advancement in life of the claimant.

In order for the Court to make a determination that inadequate provision has been made for a claimant, the claimant needs to establish that they have a financial need for further provision. The more financially well-off a claimant is, the less likely it is they will be able to satisfy the Court that provision ought to be made for them.

What is the process for commencing an FPA Claim?

If you believe that inadequate provision has been made for you from an estate, then you have 6 months from the issue of a Grant of Probate in which to commence an action in the Supreme Court. The Court does however have the discretion to extend this time limit in special circumstances.

The process is usually commenced by the claimant filing an Originating Summons (this is akin to an application form) and a first affidavit.

The originating summons must set out what changes the claimant would like the Court to make to the Will of a deceased, or in the case of an intestacy (dying without a Will), to the statutory formula dividing the deceased’s estate. The Court will no longer accept applications which simply ask the Court to make “orders which the Court thinks fit and proper”.

The Court requires claimants to join all affected parties to the application. This means that if a claimant is asking the Court to alter a Will so that a property which is due to pass to person X under the Will instead passes to the claimant, then person X must be joined to the proceedings.

As part of a claimant’s application, they are also required to swear and submit a first affidavit to the Court which states matters such as:

Confirmation of their eligibility to bring a claim under the Act (i.e. confirmation as to which class of beneficiaries they belong to)
Their income, financial resources and expenditure
Their assets and liabilities (including details of values and how these values have been determined)
Their state of health
Where a claimant has a spouse, then (B) to (D) above in relation to the spouse too

Most Family Provision Act claims settle at the first Court ordered mediation. This means that very few matters actually proceed to trial.

How are legal costs in FPA claims dealt with?

The legal costs of a claimant will not automatically be paid from the estate.

Ordinarily, where a matter settles as a mediation, each party bears their own legal costs.

If the matter proceeds to trial, the Court has the discretion to award costs in favour of a successful claimant. However, where the claimant is unsuccessful, the Court may order the claimant to pay their own legal costs ans also those of the other parties’.

Summary

If you are concerned that:

inadequate provision has been made for you under a deceased person’s Will,
inadequate provision has been made for you on an intestacy (i.e. because the deceased person died without a Will),
you have not been included as a beneficiary under a Will, or
you need assistance in defending your entitlements under a Will or intestacy,

then please contact us at 9321 5451 to discuss your rights.

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

Changes to the Pastoral Award and Wine Award

administrator@heliummarketing.agency (Helium Marketing) — Fri, 06 Sep 2019 07:20:09 GMT

Changes to the Pastoral Award and the Wine Award

The Fair Work Commission has varied the payment of wages on termination clause in the Pastoral Award and the Wine Award as part of its Modern Award Review.

The changes apply from the first full pay period starting on or after 6 September 2019.

What are the changes?

When an employer pays the final pay by cash or cheque, employees need to be paid on their last day of employment. If this isn’t possible, the employer needs to mail out all:

remaining wages by the next working day
other entitlements (such as annual leave) within 7 days.

When an employer pays the final pay by electronic funds transfer (EFT), employees need to be paid all their entitlements within 7 days of their employment ending.

Note – There may be special rules about paying any accumulated long-service leave. Check with your state or territory long service leave agency, listed on our Long service leave page.

You can view the updated rules in clause 16.3 of the Pastoral Award.

You can view the updated rules in clause 26.3 of the Wine Industry Award.

Changes to the Hospitality Award & Restaurant Award

administrator@heliummarketing.agency (Helium Marketing) — Fri, 06 Sep 2019 06:11:30 GMT

The Fair Work Commission has varied the payment of wages on termination clause in the Hospitality Award and the Restaurant Award as part of its Modern Award Review.

The changes apply from the first full pay period starting on or after 6 September 2019.

What are the changes?

Employers are now required to pay an employee’s wage and all other entitlements within 7 days of their employment ending.

For casual employees paid at the end of each engagement, their final pay must be paid at the end of their final engagement.

Note – There may be special rules about paying any accumulated long-service leave. Check with your state or territory long service leave agency, listed on our Long service leave page.

You can view the updated rules in clause 26.6 of the Hospitality Industry (General) Award.

You can view the updated rules in clause 27.4 of the Restaurant Industry Award.

Five things to consider when hiring a new employee

Fri, 30 Aug 2019 07:30:06 GMT

Hiring employees is an important part of growing your business, bringing new skills and perspectives into the workplace. However the hiring process can be overwhelming. Ensuring that you have started the employment relationship with thorough and accurate knowledge of your responsibilities, and having all the correct documentation in place, can be daunting. As part of our Bailiwick Workplace employers’ series, we will talk you through some of the legal obligations that you should know when engaging your new employee.

1. Your Legal Obligations

Do you know where your legal obligations stem from? Is the employment relationship covered by the Fair Work Act or state legislation? Will your employee be covered by an award or enterprise agreement? It is crucial that you know what your employment obligations are and where these arise from, and ensure that you are up to date with any recent changes.

2. Permanent, casual or contractor?

In deciding to take on an employee, you will have considered the capacity in which to engage them: full time or part time, permanent, casual or fixed term or for a specified task.

However, just because an employee is called a ‘casual’, even in a written employment contract, this is not conclusive of their status. There are a number of legal authorities which state that even though in the contract of employment the employee was described as a ‘casual’, and paid as such, the employee was entitled to the benefits of a permanent employee.

Similarly, with contractors there can often be a fine line as to whether they are contractor or employee. Again, a written contract may not be definitive of the status of a contractor (versus an employee). The ATO has a useful video guide to help you make this distinction: https://www.ato.gov.au/Calculators-and-tools/Employee-or-contractor/.

If classified incorrectly unpaid entitlements may become payable. As every case is different, employers that are unsure should always seek legal advice.

3. Paperwork

Do you have the necessary paperwork in place? Has this been provided to your employee, and signed and returned?

As well as your employee’s taxation and bank details, it is important to consider what other paperwork should be prepared.

An employment contract can be important in mitigating your risk as an employer and ensuring both parties are clear on the terms of employment, an issue we will cover in more detail in a later article.

Other documents that you should consider include: an induction manual, workplace policies and procedures, a copy of the fair work statement (if applicable), and a copy of any applicable award or agreement. Have you taken copies of identification, qualification certificates, driver’s license and visa details (if relevant)?

Please note that as of 1 July 2019, unless an exemption applies, all employers are required to have joined the Single Touch Payroll scheme. For more information see: https://www.ato.gov.au/Business/Single-Touch-Payroll/

4. Training

With greater focus than ever on workplace safety, and recent increases in fines, it is essential that every employer considers their workplace safety and health obligation for every new (as well as existing) employee.

This includes the requirement to train employees appropriately. Section 19 of the Occupational Safety and Health Act 1984 (WA) (OS&H Act) states:

“(1) An employer shall, so far as is practicable, provide and maintain a working environment in which the employees of the employer (the employees) are not exposed to hazards and in particular, but without limiting the generality of the foregoing, an employer shall —

…

(b) provide such information, instruction, and training to, and supervision of, the employees as is necessary to enable them to perform their work in such a manner that they are not exposed to hazards;”

In circumstances where an employer is grossly negligent in breaching this requirement, the OS&H Act provides for fines of up to $550,00.00 for an individual, as well as 5 years imprisonment, and $2,700,000.00 for a body corporate (increased last year from $500,000.00 for body corporates).

Please note that there will be further significant developments in this area if the Western Australian Model Work Health and Safety Bill (WHS Bill) is passed in parliament this year.

Employees should receive ongoing information about health and safety matters affecting their work. Some things for employers to think about when bringing on a new employee are:

Has your new employee:

been given a tour of the premises and adequate induction?
been given access to workplace safety policies and guidelines?
received training on all equipment required to perform their role?

Are safety instructions available for all equipment?
Does your employee require any supervision?
Is your employee aware of hazards or potential hazards?
Is a safety briefing required, and how often?

We recommend regular training needs analysis with each employee, which should include consultation with the employee about their training needs. It is important to document all training and meetings, and to retain this documentation to protect your business.

5. The end of the relationship

Although you have just taken on a new employee, it is important to think about what happens at the other end.

You would require a crystal ball to see when and under what circumstances the employment relationship will end, however, from a risk management perspective, it is important to consider the following matters at the beginning of the relationship:

Will the employee be privy to confidential or sensitive information that may damage my business if disclosed?
Do I need to put measures in place to protect my client base?
How much notice will I need to find a replacement, and should I allow the employee to be paid in lieu of this period?

These are matters that can be dealt with in a written contract, and if handled correctly, may save a lot of pain (and money arguing the point) at a later date.

There are many resources available to assist you when taking on a new employee, and we will be happy to have a conversation with you if you have any questions.

TIP : The Australian Government’s ‘Business’ website provides a helpful checklist to assist small businesses to learn about their employee obligations: https://www.business.gov.au/people/hiring/taking-on-an-employee-checklist

If you would like further information in relation to how the above matters may affect your business, please contact us on (08) 9321 5451.

Please also subscribe to our newsletter to be alerted to further articles in this series. Next time we will be looking at employment contracts and what should be included.

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au.

Will my family business survive succession?

Tue, 09 Jul 2019 07:34:44 GMT

Over the next decade, 1.5 million Australian business owners will be retiring. However, recent research shows that only 16% of Australian businesses are equipped with a succession plan (according to Small Business Secrets research).

It is often difficult to discuss business succession planning, particularly in a family business environment. This is often because:

Everyone is too busy running the business
Parents are unclear about their children’s expectations
Children are concerned that instigating business succession conversations may lead to their parents feeling they are being “pushed out” of the business prematurely, and
Parents find it hard to discuss financial aspects of the succession plan (i.e. will they be paid for stepping away from the business). Only 16% of Australian businesses are equipped with a succession plan. Will your Family Business survive succession to the next generation?

It is hard to separate family and business because unlike other business, the individuals involved will always remain ‘family’. Where a breakdown occurs due to a failure to plan, not only does it often result in a failure of the business but also a permanent fracture in the family.

Clients are often confused about what is involved as part of a business succession plan. A business succession plan can include any or all of the following:

The complete or gradual transfer of managerial control;
The transfer of assets and ownership;
The establishment or reconfiguration of business structures
Education and training of successors into their new roles
Planning and managing the entry and exit of family members, and
Broader estate planning of the individuals involved.

As lawyers we often find that clients are most concerned about what will happen to their family business in the event of their demise, however very few consider what will happen to the family business in the event of their permanent incapacity. A well-considered and thought out succession plan should cover circumstances of death, retirement, incapacity and possibly even the impact of relationship breakdowns (i.e. divorce and separation).

Succession plans can sometimes take several years to finalise so it is important to begin the process early. At Bailiwick Legal we take a holistic approach to succession planning. We believe it is important to work with your accountants, advisors, financial planners and bankers to ensure a robust and effective transition takes place.

If you are part of a family business and require assistance with business succession planning, please contact us by phone or email at office@bailiwicklegal.com.au for more information.

Remember, failing to plan more often than not, means planning to fail.

Bailiwick Legal newsletter June 2019 edition

administrator@heliummarketing.agency (Helium Marketing) — Fri, 21 Jun 2019 07:19:57 GMT

The June 2019 edition of the Bailiwick Legal newsletter is out! Make sure to check it to find out what we have been up to recently. In this edition we share some legal insights into changes to 2019/2010 WA State minimum wage rates, Single Touch Payroll (STP), and part 1 of our series on Wills, estates and beneficiary rights.

Family Farm Transfers - Return of the Exemption

Thu, 20 Jun 2019 07:49:14 GMT

Amendments to the Duties Act 2008 to assist with family farm transfers

Bailiwick Legal regularly advises farmers on farm transfers and the exemptions that have been available. As we noted in January 2019, under the Duties Act, an exemption of duty was not available where the transferor of the land continued to be involved in the business farming the land after the transfer had taken place.

This position has now been amended under changes recently made to the Duties Act 2008.

Revenue Law Amendment Act 2019

On 13 June 2019 the Revenue Law Amendment Act 2019 came into effect, including changes to the family farm transfer exemption provisions under the Duties Act 2008. The changes are intended to re-establish the flexibilities that were available under the old laws for the generational transferring of farmland.

In the Explanatory Memorandum to the Bill, it is said that the changes will provide for the exemption from duty to apply where:

a farmer transfers farming property to a related discretionary trust under which the farmer is a beneficiary
a farmer transfers farming property to a family member and retains an interest in the entity (such as a partnership) conducting the farming business on the land
a farmer is not conducting a farming business immediately prior to a transfer of farming property to a family member, if the Commissioner is satisfied the farmer had previously conducted the business and a family member (or a related entity) is conducting the business immediately prior to the transfer
the partnership that conducts a farming business includes non-family members
if a transferee is a bare trustee, the beneficiaries hold an interest in the related entity that conducts the farming business

These changes to the family farm exemption provisions should allow greater flexibility for intergenerational transfers of farmland. This will be a positive outcome for rural businesses and planning for successions.

If you would like assistance with family farm transitions between generations, or family and business succession planning, please contact us on (08) 9321 5451 or by email at phil@bailiwicklegal.com.au.

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au.

Changes to 2019/20 WA State Minimum Wage

Thu, 20 Jun 2019 07:41:56 GMT

The WA Industrial Relations Commission has announced a 2.75% increase to the state minimum wage for the 2019/20 financial year. This increase will apply from 1 July 2019, and will mean that the new WA minimum wage, at $746.90 per week, will still be greater than the national minimum wage, which is to increase to $740.80 per week.

As well as a raise to the state minimum wage, WA award rates will also be raised by 2.75%. Changes to 2019 / 2010 WA State Minimum Wage

The Commission estimates that: “approximately 27,000 employers and over 300,000 employees are likely to be directly or indirectly affected by rises in the minimum wage and minimum award wages.”

Why the increase?

The Commission is required by the Industrial Relations Act 1979 to take a number of factors into consideration when deciding on whether to increase the minimum wage and award rates, including the following:

Current WA and national economies;
Needs of low paid workers;
Capacity for employers to meet any increases;
The National Minimum Wage decision;
Need for equal remuneration for men and women for work of equal or comparable value; and
Any other matters the Commission considers relevant.

After considering these factors and in its decision, the Commission commented that:

“The Western Australian economy is now in the process of improving … and there are signs of growth. However, Western Australia’s economy compares unfavourably with the rest of the national economy, and in that context, the national economy also has its challenges.”

The Commission also noted that: “Sectors of the Western Australian economy where employees are reliant on award increases and the low paid generally are employed, have not yet seen improvements in their profitability or employment growth. Signs of improvement in industries such as mining have not yet flowed to the rest of the economy.”

“A number of factors of particular concern are the spare capacity in the economy and the desire for there to be higher employment, hours worked and other improvements in employment and productivity. The cost of living, measured by Perth Consumer Price Index has increased but only at a low level and low in comparison with other capital cities.”

(The Commission’s full statement and decision can be found at: http://www.wairc.wa.gov.au/index.php/en/latest-news/550-state-minimum-wage-set-at-746-90-per-week )

Is this increase enough?

Not everyone believes that this increase is sufficient to assist low paid workers. Meredith Hammat, Secretary for UnionsWA, commented:

“Today’s decision to increase the WA minimum wage by 2.75% is welcomed however it won’t go far enough to relieve the financial pressure facing working people and their families… It is disappointing that this WA decision is lower than the recent decision to increase the National Minimum Wage by 3%.”

(You can find further comments from Unions WA at: https://www.unionswa.com.au/pay_decision_not_enough_for_living_costs )

How does this effect employers?

If you are an employer paying employees based on these rates, you should be prepared to implement this change from the first full pay period from 1 July 2019. All award rates will be available on the Industrial Relations Commission website and https://www.commerce.wa.gov.au/labour-relations.

Please also remember that, as of 1 July 2019:

The Federal Minimum Wage and award rates will also be increasing; and
All businesses will be required to adhere to the new single touch payroll reporting system, unless an exemption has been specifically granted.

If you would like further information in relation to how the above matters may affect your business, please contact us on (08) 9321 5451 or by email at brian@bailiwicklegal.com.au

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au.

The introduction of Single Touch Payroll (STP)

Mon, 17 Jun 2019 07:46:49 GMT

We have had a number of inquiries from our clients seeking to understand the upcoming introduction of Single Touch Payroll (STP). Although payroll is not our Bailiwick and this issue is not directly relevant to us, we are happy to give our clients some general understanding to assist them to meet their legal obligations. This article does not provide legal or accounting advice but is for the purpose of improving understanding by simplifying the information available from the ATO – https://www.ato.gov.au/Business/Single-Touch-Payroll/

STP is a new way of reporting tax and super information to the ATO. It is important to be aware that STP does not in any way change your existing practices, obligations or rates of pay.

STP will be a legal obligation on small employers from 1 July 2019. This is a perfect time to review all of your legal obligations to ensure you are complying with all employment regulations and protecting yourself against disputes or claims from your employees.

Things you need to check

As an Employer do you know your legal obligations for documents and records?
Is your casual employee really a casual employee?

How STP works

STP works by sending tax and super information directly from your payroll or accounting software to the ATO every time you run your payroll.

When you start reporting:

you will run your payroll, pay your employees as normal, and give them a payslip – your pay cycle or method does not need to change.
your STP-enabled payroll software will send a report to the ATO which includes the information they need from you, such as salaries and wages, pay as you go (PAYG) withholding and super information.

At the end of the financial year, you’ll will need to finalise your STP data. This is a declaration to the Commissioner to state you have completed your reporting for the financial year. You will no longer have to give your employees a payment summary (group certificate) or provide the ATO with a payment summary annual report.

You can report STP through one of the following ways:

Report from your current payroll solution when it is STP-ready. A payroll solution is the accounting, business management or payroll software you use to run your payroll and pay your employees.
Report from a new payroll solution which is STP-ready.
Ask a third party, such as your registered tax agent, to report to STP on your behalf.

In essence, nothing will change in how you process payroll. The main thing is that after each “payroll” you will have to send some additional reporting information to the ATO. The obligation is on you as the employer to send information to the ATO.

No-cost and low-cost solutions for Single Touch Payroll

Employers with 1-4 employees (micro employers)

If you have four or less employees (micro employer) and you don’t currently use payroll software, there will be other ways to report STP information.

The ATO asked software developers to build no-cost and low-cost STP solutions for micro employers – including simple payroll software, mobile phone apps and portals.

They have published a list of the companies intending to offer these solutions. Find out more at https://www.ato.gov.au/business/single-touch-payroll/in-detail/low-cost-single-touch-payroll-solutions/

If it’s all too hard …

You will also have the option for your accountant, registered tax or BAS agent to report your STP information quarterly, rather than each time you run payroll. This option will be available until 30 June 2021.

If you would like assistance generally in employment matters, please contact us on (08) 9321 5451 or by email phil@bailiwicklegal.com.au.

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

Wills, Estates and Beneficiary Rights – Part 1

Fri, 14 Jun 2019 07:13:53 GMT

Is there a ‘reading of the will’?

A very common question I hear from family members of a deceased is “when is the reading of the Will”.

The answer is… “there is no requirement for a ‘reading of the Will’ in Australia”.

Sadly, most of us are guilty of watching too much American TV. We are constantly exposed to images of lawyers theatrically walking around court rooms eyeballing jurors and hearing about “the reading of Wills” where TV characters die. The reality is, our Australian legal system is quite different from American TV yet most of us seem to know more about the American legal system than we do about our own.

In Australia, an executor simply needs to notify a beneficiary of their entitlements under a Will upon the issue of a Grant of Probate. It is common practice for the executor to also provide them with a copy of the Grant (which attaches a copy of the Will).

Are you a beneficiary?

Often individuals want to know as soon as possible whether they are a beneficiary of an Estate, and before a Grant of Probate is made.

If you are unsure whether you are a beneficiary of an estate and want to check the Will, here are some of your options:

If you know who the executor of the Will is, you can approach them and ask for a copy of the Will.
If the executor is unwilling to provide you with a copy, or you do not know who the executor is, then you are entitled (in return for a small fee) to obtain a copy of the Will from the Supreme Court Probate Registry of WA (if it has been presented to the Probate Registry by the executor).
If you believe the wrong Will has been or is going to be submitted into Probate by the executor, then you should obtain legal advice immediately. You may need to lodge a probate caveat to protect your interests in the estate.

What if you are unhappy about the provision, or lack of provision, the deceased has made for you in their Will?

Often disputes regarding the division and distribution of an estate can be resolved amicably between parties without the need to commence any Court proceedings.

However, at times, where one or both parties are unwilling to negotiate or simply cannot reach a resolution, disgruntled beneficiaries are often left with no choice but to commence legal action against the Estate pursuant to the Family Provision Act(WA) 1972. More on this in Part 2 of this series.

If you believe that you have not been adequately provided for out of a deceased estate, or you require assistance with defending your position as a beneficiary of an estate because someone is challenging your entitlements, the lawyers at Bailiwick Legal can help. To find out more, phone us at 9321 5451.

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

Significant Changes to the Horticulture Award 2010 (Horticulture Award)

Mon, 08 Apr 2019 07:53:25 GMT

Significant changes to the Horticulture Award 2010 (Horticulture Award)

Some of Australia’s biggest fruit producers say a ruling this week by the Fair Work Commission is “a crazy decision” that will send some farmers broke and force up the price of fruit and vegetables.

Starting from April 15 2019, the Fair Work Commission has ruled that casuals on horticultural farms, who work more than an average of 38 hours a week over an 8 week period, will receive overtime, with overtime penalties also paid for working more than 12 hours on any one day.

The Horticulture Award 2010 (Horticulture Award) covers employers throughout Australia operating in the horticulture industry as defined in the Award and includes sowing, planting, cultivation, harvesting, picking, washing, packing and grading of horticultural crops and more.

Key points:

Casual farm workers to be paid casual loading on overtime penalties beyond an average of 38 hours a week over an 8 week period
Casual farm workers to be paid casual loading on overtime penalties beyond 12 hours work on any one day

The changes to the Horticulture Award may affect the way many horticultural producers operate by limiting casual engagements due to the higher payments now required on overtime rates.

The impact of the decision seems counterproductive to recent changes to the Working Holiday Maker (WHM) visa program which was designed to attract more working holidaymakers to help support our farmers and boost regional tourism, and to target genuine workforce shortages in regional Australia.

If you are an employer in the horticultural Industry operating under the Horticulture Award 2010 then it is essential that you review your upcoming rosters to identify where the increased payments may apply. The increased rates apply as of next week, on and after 15 April 2019.

If you would like further information on the above ruling and its potential impact on your business, or assistance generally in employment matters, please contact us on (08) 9321 5451 or by email phil@bailiwicklegal.com.au.

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

Bailiwick Legal newsletter April 2019 edition

administrator@heliummarketing.agency (Helium Marketing) — Mon, 08 Apr 2019 07:22:01 GMT

Our latest newsletter is out! Make sure to check it to find out what we have been up to recently.

The Working Holiday Maker (WHM) visa helping our farmers and regional tourism

administrator@heliummarketing.agency (Helium Marketing) — Thu, 28 Mar 2019 07:57:41 GMT

The Government has announced a new campaign to attract more working holiday makers to Australia, helping to support our farmers and boost regional tourism.

Farmers and Tourism operators in regional and rural areas around Australia are receiving more support to resolve labour shortages with changes to two visa programs introduced late last year, in conjunction with the new promotional campaign being broadcast across the UK, France & Germany.

Working Holiday Maker Visa

The Working Holiday Maker (WHM) visa program is designed to target genuine workforce shortages in regional Australia without displacing Australian workers. The visa benefits both the agricultural and tourism industries as these holiday makers are critical in filling short-term seasonal workforce shortages in regional areas, as well as spend their income on local tourism.

The enhancements include expanding the regional areas where working holiday makers can work, increasing the time period they can stay with an employer and adding the option of a third-year.

The Australia Inc. marketing campaign is a new campaign designed to attract more working holiday makers to help to support our farmers and boost regional tourism. The campaign will run in Europe targeting young people considering overseas travel with temporary work.

Seasonal Worker Program

Changes have also been made to the Seasonal Worker Program, making it easier for farmers & tourism operators to access workers for a longer period with less administration costs. For more information visit https://www.jobs.gov.au/seasonal-worker-programme.

Is my Casual Employee a Casual Employee? A look into WorkPac Pty Ltd v Skene

Mon, 11 Mar 2019 08:03:48 GMT

His contract described him as a casual employee, however ...

There are significant implications relating to an employee’s entitlements when considering whether the employee is a casual or permanent employee. Rights such as notice of termination and paid leave entitlements will differ depending on the determination of that question.

In WorkPac Pty Ltd v Skene [2018] FCAFC 131 (16 August 2018) Mr Skene was engaged as a “casual or fixed term employee” under the terms of the Workpac Pty Ltd Mining Industry Workplace Agreement. He worked 12.5 hours a shift with permanent accommodation provided and regular and predictable working hours. His employment was continuous and he did not elect the days he worked.

Some time after his employment ended, Mr Skene claimed that he was not a casual employee and was entitled to annual leave benefits, as part of the National Employment Standards under the Fair Work Act.

At trial, the Court found that Mr Skene was a casual employee for the purposes of the Workplace Agreement, but that, as a matter of law, he was not a casual for the purposes of the Fair Work Act and was therefore entitled to be paid annual leave benefits. This decision was disturbed on appeal.

The Court’s decision that Mr Skene was not a casual employee (for the purposes of the Act) included the factors referred to above, ie that he was provided with a roster twelve months in advance, had regular and predictable working hours, had continuous employment with an expectation that it would continue, did not elect the days he worked and was provided permanent accommodation.

The Court’s decision reflects a long line of authority, to the effect that it does not matter how the employer and employee view the relationship or what they might call themselves, the question as to whether or not a particular employee is a casual employee or a permanent employee (at least for the purposes of the annual leave entitlements under the NES) will be determined by the Court, as a matter of law, and based on all the factors of the employment.

In this case, the court also remarked that an employer may be able to claim a set-off against the amount owed to an employee who has successfully established an entitlement to annual leave (under the NES) if the employee has already been paid a casual loading. Workpac did not succeed in achieving this set off as in the agreement with Mr Skene, the “casual loading” was not distinguished within the hourly rate paid.

For employers, the case is a reminder of the necessity to properly manage the risks around employment. We at Bailiwick Legal can assist employers in this area, a brief checklist will likely include:

distinguishing the casual loading in an employee’s contract and their pay advice;
comparing the contract of employment with actual work practices; and
considering a casual employee’s work patterns and expectations, and whether the employee really has the option of not working on any day.

Employers covered by federal modern awards will also need to consider the effect of the new award provisions which provide a right for longer term, regular casual employees to request a “transfer” to permanent status.

If you would like further information on the above case and its potential impact on your business, or assistance generally in employment matters, please contact us on (08) 9321 5451 or by email at phil@bailiwicklegal.com.au.

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

Family Farm Transfers - Amendments to the Duties Act 2008

Thu, 24 Jan 2019 08:06:52 GMT

Amendments to the Duties Act 2008 to replace the old Stamp Act gave rise to some unintended consequences for family farm transfers.

Bailiwick Legal regularly advises farmers on one of those consequences. Currently, under the Duties Act, an exemption of duty is not available where the transferor of the land continues to be involved in the business farming the land after the transfer has taken place. This outcome was confirmed in the decision of West v Commissioner of State Revenue [2015] WASAT 36 (West).

Revenue Laws Amendment Bill 2018

In late 2018, the WA Government introduced the Revenue Laws Amendment Bill into Parliament. One of the proposed changes relates to the operation of the family farm transfer exemptions. It proposes to re-establish the flexibilities that were available under the old laws for the generational transferring of farmland.

In the Explanatory Memorandum to the Bill, it is said that the proposed changes will provide for the exemption from duty to apply where:

a farmer transfers farming property to a related discretionary trust under which the farmer is a beneficiary
farmer transfers farming property to a family member and retains an interest in the entity conducting the farming business on the land
a farmer is not conducting a farming business immediately prior to a transfer of farming property to a family member, if the Commissioner is satisfied the farmer had previously conducted the business and a family member (or a related entity) is conducting the business immediately prior to the transfer
the partnership that conducts a farming business includes non-family members
if a transferee is a bare trustee, the beneficiaries hold an interest in the related entity that conducts the farming business

The government anticipates that the Bill will be passed in the autumn of 2019. If enacted, these changes to the family farm exemption provisions should allow greater flexibility for generational transfers of farmland. This will be a positive outcome for rural law. Bailiwick Legal, specialists in rural law, will continue to monitor the passage of the Bill.

An Employer's legal obligations for documents and records

Fri, 18 Jan 2019 08:24:45 GMT

At Bailiwick Legal we are constantly surprised at the gaps in documentation that our clients just didn’t know they had to have !

Documents you must give to your employee (and keep a record of) :

TFN form
Payslip
Superannuation Choice Form
Fair Work Information Statement

Documents you must have as an employer and keep records :

Time & Wages Records
Employee File Record
Workers Compensation Injury Management System
Workers Compensation Return to Work Program

Penalties can be imposed where relevant records are not maintained.

In addition, we believe that there are a number of essential and highly recommended documents that would be useful to use to assist with the smooth running of your business.

Induction Manuals and Checklist are usually a good means to ensure each employee is made aware of key information, such as reporting lines, safety equipment and policies. Maintaining a record of the provision of this material to an employee, or having the employee sign acknowledgement of their receipt and understanding of such matters, will invariably assist in answering any later claims.

Similarly, including a complaints or dispute resolution procedure will assist with the management of complaints, which again are often useful in addressing subsequent termination or adverse action claims. A Code of Conduct is an essential tool which sets out your expectations of behaviour, dress and service standards and can be a useful tool where performance management of an employee is required.

At the very beginning of the relationship though, perhaps the most important of all documents – although many employers still do not use them – is the signing of the Contract of Employment. An essential document that sets out conditions of employment, the duties required to be performed and provides for the hours of work, leave entitlements, performance management and termination rights. A small investment in developing and using written contracts of employment is a risk management “must do”.

At Bailiwick Legal we assist employers and employees understand their rights and responsibilities under Australian workplace laws. We also work to resolve workplace issues, often while the employment relationship is ongoing and also at its end.

If you would like assistance with understanding your legal obligations on the provision and retention of documents, or workplace matters generally, please contact us on (08) 9321 5451 or by email at phil@bailiwicklegal.com.au.

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

Mandatory wording for goods & services warranties Amendment in the CCR

Fri, 18 Jan 2019 08:19:23 GMT

As of 8 June 2019, the Competition and Consumer Regulations (CCR) will require new mandatory wording to be included in all warranties against defects that are provided to consumers when businesses supply services, or goods and services together. Prior to this change, only warranties relating to the supply of goods required the mandatory text.

The wording notifies consumers and draws attention to consumer guarantee rights within the ACL that cannot be replaced by the businesses’ warranty.

What constitutes a warranty against defects?

Warranties against defects include representations made to consumers that if goods or services are defective, the supplier will repair or replace goods, provide the services again or rectify the services, or provide compensation to the consumer. The representation must be made around the time of the supply. Warranties against defects may also be referred to as manufacturer’s warranties.

The warranty may consist of writing on packaging, a pamphlet, or any document on which representations are made that accompanies the supply of goods and services.

The mandatory wording: services

Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

to cancel your service contract with us; and
to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.

The mandatory wording: goods & services

Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

to cancel your service contract with us; and
to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service’.

Additional Requirements

Existing requirements under the CCR provide that any warranty against defects must:

be transparent, including providing name, business address, and contact details of person providing the warranty;
explain what the supplier must do to honour the warranty and what the consumer must do to claim the warranty;
state the period within which the defect must be identified for the consumer to claim the warranty; and
explain the procedure for the consumer to make a claim on the warranty, including any expense details.

Conclusion

Businesses that regularly supply goods or services to consumers should ensure they implement the new mandatory wording in their warranties. Failure to do so may result in breach of the ACL and consequent penalties.

If you would like assistance with any consumer or warranty matters, or for further information in relation to consumer law generally, please contact us on (08) 9321 5451 or by email at phil@bailiwicklegal.com.au.

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

Landowner's Rights with Gas Exploration and Access to Farm Land

Fri, 18 Jan 2019 08:15:59 GMT

With the moratorium on exploration of on shore gas resources being lifted in the northern regions of the State, oil and gas companies are now seeking access to farming land to determine the location and size of reservoirs.

If you are approached by a petroleum explorer seeking access to your land, it is important that you understand your rights and consider the impact that exploration may have on your farming operations.

We have prepared this article to assist farmers in the initial stages of dealing with land access requests. In later articles in this series, we will discuss (in further detail): land access agreements, compensation for land access and what happens when access and compensation cannot be agreed.

Landowner’s rights

Petroleum activities in Western Australian are governed by the Petroleum and Geothermal Energy Resources Act 1967 and related regulations.

Some key provisions to be aware of are:

An Operator (the company responsible for any activities taking place on a Petroleum Title) must obtain written consent to access private land;
The Operator must negotiate compensation with the land owner (to compensate the landowner for loss and damage, including for disruption of farming activities);
Activities may not commence until an agreement between the landowner and Operator has been reached; and
If compensation cannot be agreed during negotiations, the Magistrates Court has the power to fix the amount of compensation.

It is important that the agreement between a landowner and Operator is fully and accurately reflected in a written contract. In 2015, Bailiwick Legal assisted with the development of a model agreement to assist farming landowners and petroleum operators to determine and document fair and equitable terms for access. See: https://www.appea.com.au/media_release/oil-and-gas-and-farming-industries-endorse-new-framework-for-coexistence-in-western-australia/ for copies of the agreement template and supporting information.

Can access be denied?

Access can only be denied in very limited circumstances. Where the land is:

Private land not exceeding 2000 m2;
Used as a cemetery or burial place; or
Less than 150m from any cemetery or burial place, reservoir or any substantial improvement,

the landowner has the discretion to withhold consent to access for exploration.

Negotiations – things to consider

1. Operator’s proposed activities

When considering a request for land access, it is crucial to understand exactly what activities the Operator is proposing to carry out, where these activities will take place, and a timeline for such activities.

These activities may include carrying out surveys, drilling and rehabilitation, and the construction of required infrastructure (such as roads, gravel pads, bores, workers quarters, fencing, power supply networks and wells). You should consider how intrusive each activity is likely to be, and seek confirmation of the likely time period for each.

2. Impact on your farming operations

It is equally important to consider your own farming program. Exploration activities may impact your farming operations by requiring the relocation of stock or to stop cropping activities, effecting water supplies and access on your farm and /or creating security, biosecurity and safety hazards.

3. Minimizing the effects of exploration on your land

We suggest that you prepare a comprehensive plan of your current and future farming operations prior to finalising any agreement for land access, so that you may properly consider the impacts of exploration, and the measures available to minimise disruption and loss.

Some measure to consider include:

Agreed compensation (including for loss of income, disruption, professional advice, and any devaluation of your land);
Changes to your farming plan / operations;
Negotiating changes to the proposed activities and / or time frames with the Operator; and
Whether your farming operations or land can benefit from retaining any of the Operator’s infrastructure after exploration has ended.

Seeking Professional Advice

Under the model agreement, Operators are liable for the reasonable costs of a landowner seeking advice, including legal, financial or technical advice, in relation to a land access agreement and/or proposed exploration activities. If approached, we recommend that you seek professional advice to assess, negotiate and document access and compensation arrangements.

If you would like assistance with negotiating the terms of a land access agreement, or for further information in relation to how the above matters may affect your farming operations, please contact us on (08) 9321 5451 or by email at phil@bailiwicklegal.com.au.

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

What does the 7% increase in Foreign Buyers Duty mean for you?

Wed, 09 Jan 2019 08:36:13 GMT

As at 1 January 2019, foreign transfer duty and foreign landholder duty came into effect through the Duties Act 2008. An additional 7% duty will apply to certain acquisitions of residential property (including land) where the buyer or transferee (person receiving the property) are foreign persons, including foreign companies and foreign trustees.

What does this mean to you?

Every buyer or transferee that acquires or purchases land or vacant land for residential building in Western Australia is now required to complete a Foreign Transfer Duty Declaration Form within two (2) months of executing the dutiable transaction such as the contract for sale. This applies even if you are not a foreign person.

But I have already signed a Contract !

If you have signed a contract prior to 1st January 2019 with settlement due in 2019, and the transferee(s) on the transfer are the same as the purchasers on the agreement or contract, you will not be liable for the additional duty on the transfer.

How do I calculate the total duty payable?

The Office of State Revenue has online transfer duty calculators HERE which can be used to calculate duty estimates.

Who is responsible for making the declaration?

The buyer and or transferee is responsible for completing the Foreign Transfer Duty Declaration Form. This cannot be completed by a representative for a buyer

A foreign person is a foreign individual, a foreign corporation or a foreign trust.

A foreign individual is:

A person who is not an Australian citizen, or does not hold a permanent or special category visa.
A permanent visa allows a person to remain in Australia indefinitely as an Australian permanent resident.
A special category visa is granted to New Zealand citizens who wish to visit, stay or work in Australia.

A foreign corporation is:

a corporation that was incorporated outside Australia; or
a corporation in which foreign persons have a controlling interest.

A foreign trust is:

A discretionary trust controlled by a foreign person; or
a discretionary trust where one or more foreign persons that are takers in default, together with their associates, hold at least 50 per cent interest in the discretionary trust; or
a trust other than a discretionary trust where one or more foreign persons, together with their associates, hold beneficial interests in at least 50 per cent of the income of the trust.

Important!

There are some exemptions, some split percentage arrangements and situations where nominal duty will apply. It will be important to seek professional advice as early as possible.

If you would like more information on this issue, please contact Philip Brunner at Bailiwick Legal – phil@bailiwicklegal.com.au or call (08) 9321 5451.

Bailiwick Legal newsletter January 2019 edition

administrator@heliummarketing.agency (Helium Marketing) — Thu, 03 Jan 2019 07:48:16 GMT

Check out the Bailiwick Legal January 2019 newsletter for the latest Bailiwick Legal news.

Enjoy!

New Extension of Family & Domestic Violence Leave Entitlements in Australia's Fair Work System

Thu, 13 Dec 2018 08:31:05 GMT

Family and domestic violence is a well-recognised problem in Australia, with a reported 1 in 6 women, aged 15 or above, and 1 in 16 men, having experienced physical or sexual violence by a current or former partner (according to the report released by the Australian Institute of Health and Welfare: Family, domestic and sexual violence in Australia, 2018).

It is clear that the effects of such violence extend beyond physical injuries and do not end if or when the violence does. Those experiencing family and domestic violence often require time to deal with mental health issues, housing arrangements, caring for children involved, including ensuring children are removed to a safe environment, as well as to access legal and financial services.

With this in mind, amendments have now come into force extending the entitlement to family and domestic violence leave to all Fair Work system employees.

Extension of entitlement

Earlier this year, changes were made to industry and occupation modern awards entitling employees covered by the relevant awards to five (5) days unpaid leave in order to address family and domestic violence issues. However, millions of Fair Work system employees did not have this entitlement.

From 11 December 2018, the entitlement has been extended to all employees covered by the national Fair Work system, and is to be included in the National Employment Standards (NES), which provide minimum standards of employment.

This inclusion will provide support and assistance to those affected by domestic and family violence, and should encourage employers to work with their employees to minimise disruption to their employment.

How will this apply?

If an employee’s family member is threatening, violent or abusive, in a manner that seeks to coerce or control the employee, or causes them harm or fear, the employee may take unpaid leave if they need to deal with the impact of the behaviour and it is impractical to do so outside of ordinary work hours.

The full leave entitlement (of 5 days) is automatically available at the beginning of each 12-month period of employment, but does not roll over into the next year.

Recommendations to Employers

If you are an employer within the Fair Work system, we recommend that you:
Update your policies to reflect this new entitlement;
Keep employees up to date in relation to their entitlements; and
Remember that sensitivity and confidentiality should be maintained when dealing with requests for family and domestic violence leave.

If you would like further information in relation to how the above matters may affect your business, please contact us on (08) 9321 5451 or by email at phil@bailiwicklegal.com.au.

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au

Bailiwick Legal newsletter December 2018 edition

administrator@heliummarketing.agency (Helium Marketing) — Mon, 03 Dec 2018 07:50:24 GMT

Our latest newsletter is out! Make sure to check it to find out what we have been up to recently.

Click here to read more.

Investing in machinery - is the machinery fit for purpose and recoverable?

Wed, 21 Nov 2018 08:44:31 GMT

A large investment for any business is the purchase of machinery and equipment. With more sophisticated technology available every year, not only are there increased costs involved with purchasing the machinery, there is also a greater reliance on the manufacturer and dealer to ensure that the machinery being purchased is suitable for the buyer’s needs.

It is not always apparent whether machinery purchased is right for the job, or will do what is promised, until it has been delivered and put into operation. Even then it may take some time to identify any problems or defects in the machinery.

We understand that the impact of machinery breaking down or not working correctly can be stressful, time consuming and expensive, especially at key times in the season, such as seeding, spraying and harvest.

Should you find yourself in this situation, there are a number of options that may be pursued to seek to recover some or all of the loss that you have suffered.

First, it is important to keep a full copy of the purchase agreement, user manuals and warranty documents. These documents often provide key terms under which you purchased the machinery. They may provide rights to repairs or a replacement machine.

If a solution cannot be found in the written terms of the agreement or warranty, there are also terms that are implied by Statute. Such ‘implied’ terms may include that machinery:

will be fit for the purchaser’s purpose (if this purpose was communicated to the seller); and
will be of merchantable quality (meeting a level of quality and performance that could have been reasonably expected by the purchaser).

Where you have machinery that is broken down or not working as expected, it is important to maintain detailed records and to review the options as early as possible. Sometimes dealers will enter into negotiations to assist you to keep your business moving along smoothly. If you are not successful in finding a solution you may wish to consider a stronger approach, such as dispute resolution processes or initiating court proceedings, to recover your losses.

If you would like more information on these issues, please contact Philip Brunner at Bailiwick Legal – phil@bailiwicklegal.com.au or call (08) 9321 5451.

Easements - A few recent legal issues to learn from

Tue, 20 Nov 2018 08:57:21 GMT

Access over an easement on someone else’s land often seems innocuous enough, however we have recently assisted a few clients on issues which highlight some of the disputes that can arise in relation to that use.

The first example centers on a common situation for farmers. Typically, the grant of an easement allows the user of the dominant tenement to have unobstructed use of the easement land over the servient tenement. On farms, an easement may have fences and gates across it. It is a common industry practice to leave gates as you find them, if open, to leave the gate open and vice versa.

In our example, the users of the dominant tenement refused to close these gates, despite having legal advice stating that the gates were not an obstruction. This dispute is currently before the Supreme Court.

Our second example is a lesson to ensure that the detailed survey plan matches the physical location of the easement, prior to registration of the easement on the relevant land titles.

In this situation, the surveyed easement which was registered on the titles did not actually reflect the actual roadway being used. Whilst the roadway being used ran along the boundary, the surveyed and registered easement essentially ran through the middle of the property.

This situation potentially creates difficulties for both the dominant and servient tenement owners, including in relation to maintenance obligations and enforcement of rights.

In the third example, our clients were asked to grant an easement over their land to the holder of a leasehold interest on the neighbour’s land. The easement was required for a power transmission line from a wind farm power generator.

Wind farm leases and easements are becoming increasingly common over farm land and require consideration of some quite different issues due to the regulatory and safety issues that surround power generation and transmission. The commercial incentives for such long term projects are also key components of these agreements.

If you would like further information in relation to how the above matters may affect your business, please contact us on (08) 9321 5451 or by email at phil@bailiwicklegal.com.au.

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au

Bailiwick Legal newsletter November 2018 edition

administrator@heliummarketing.agency (Helium Marketing) — Tue, 20 Nov 2018 07:23:51 GMT

Check out Bailiwick Legal’s November newslette r.

Articles in this newsletter include legal considerations about easements and the latest in changes to employee entitlements that could affect employers. We also share a little about what we have been up to and what we are planning for the near future. We hope you enjoy it!

Employers ! – Does the recent changes to employee entitlements affect you?

Thu, 15 Nov 2018 08:53:53 GMT

In the second half of 2018 we have seen a number of changes to the national industrial relations system, including to modern awards. It is important that employers keep up to date with these changes to remain compliant with their obligations.

Family & Domestic Violence Leave

As of 1 August 2018, employees covered by an industry or occupation modern award now are entitled to five (5) days unpaid leave in order to address family and domestic violence issues.

If an employee’s family member is threatening, violent or abusive, in a manner that seeks to coerce or control the employee, or causes them harm or fear, the employee may take leave if they need to deal with the impact of the behaviour and it is impractical to do so outside of ordinary work hours.

The full leave entitlement (of 5 days) is automatically available at the beginning of each 12-month period of employment, but does not roll over into the next year.

We recommend that as an employer you:

review your relevant award provisions;
update your policies to reflect this new entitlement; and
remember that sensitivity and confidentiality should be maintained when dealing with requests for family and domestic violence leave.

Regular Casual Workers May Not Be Casual

In a recent landmark case in the Federal Court, the issue of ‘what is a casual employee?’ was discussed. The court said that where a worker has set hours or shifts, or they have been promised ongoing future work, they may not be classified as a ‘casual employee’, regardless of their terms of engagement.

Entitlements not usually afforded to casual employees, such as paid annual leave, notice of termination, redundancy pay, and the right to not work on public holidays, may be payable by an employer if the employee is found by the court to not meet the criteria of a ‘casual employee’. This may be the case even though a written contract defined the employee as a casual, and a casual loading has been paid.

Employers should ensure that they know the capacity under which their employees are engaged, based on the reality of employment relationship, not just the classification given by the employer.

Where employers guarantee or promise their casual workers certainty as to future work, they should consider reviewing and or revising the casual workers’ terms of employment, including converting the employee to a permanent position.

Casual Conversion Requests

As of 1 October 2018, 84 modern awards were varied to contain a casual conversion clause.

If your casual employee has worked in their position for 12 months, on an ongoing and regular basis, they may be entitled to request conversion to permanent employment.

ACTION REQUIRED! Employers must advise all casual employees of their rights to request conversion, whether they are eligible or not, by providing them with a copy of the relevant casual conversion clause within their award contract.

Family Friendly Flexible Working Arrangements

The Fair Work Commission recently published its provisional view that a model term be incorporated into modern awards relating to flexible working arrangements.

This move appears to be in response to a growing concern that there is an unmet need for more flexibility in the workplace, in accordance with the needs of a modern workforce, including for working families.

The model clause is currently open for comment in relation to the requirements of specific industries.

The clause would apply to employees within the following categories:

parents, or those with responsibility for the care of a child who is school age or younger;
carers (within the meaning of the Carer Recognition Act 2010);
those with a disability;
those aged 55 or older; and
those experiencing family violence or providing care or support to an immediate family or household member, who requires care or support due to family violence.

Common arrangements requiring such flexibility include: adjustments to start and finishing times, job-sharing arrangements, part-time work, working more hours over fewer days, time off in lieu of overtime pay and working from home.

The model term would require that requests from employees:

be in writing: and
include an outline of reasons for the request.

Employers would then be required to respond in writing within 21 days, to either grant or refuse the request. Any refusal by an employer must include reasons based on ‘reasonable grounds’, which may include that:

the changes would be too costly, or likely to result in significant loss of efficiency or productivity;
other employees would be impacted, and there is no capacity to accommodate such an impact;
it would be impractical to change other employee’s arrangements, or recruit new employees, to accommodate the request; and
the changes would likely have a significant negative impact on customer service.

Employers are encouraged to keep up to date with industrial relations changes and discuss any concerns they may have with their solicitor.

If you would like further information in relation to how the above matters may affect your business, please contact us on (08) 9321 5451 or by email at phil@bailiwicklegal.com.au.

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au

Have you considered Capital Gains Tax when Granting Easements?

Wed, 14 Nov 2018 08:50:39 GMT

On 31 October 2018, the Australian Taxation Office (“ATO”) finalised Tax Determination 2018/15 (“Determination”). The Determination considered whether or not a Capital Gains Tax (“CGT”) event arises if a taxpayer grants an easement or license over an asset.

It is now clear that the ATO considers the granting of an easement as the creation of rights in respect of an asset and a trigger for CGT Event D1.

Example from TD 2018/15:

Lisa bought a property on 1 January 1985 (pre capital gains tax). On 1 December 2017 she granted an easement over the property to her neighbour and received $40,000 for doing so. Lisa incurred $1,000 in legal expenses in relation to the grant of the easement.

Lisa will make a capital gain of $39,000 in respect of the grant of the easement [capital proceeds $40,000 less incidental costs $1,000]. The capital gain is not a discount capital gain.

Even though Lisa acquired the land over which the easement was granted prior to 20 September 1985, she cannot disregard the capital gain from the grant of the easement. Further, Lisa could not disregard the capital gain even if the property was her main residence.

As a result of the Determination, the following are important points to remember in regards to easements:

No part of the asset’s cost base can be taken into account in working out the amount of the capital gain or loss. This means that the underlying cost base of the property in the above example is not relevant;
A capital gain or loss from the grant of the easement cannot be disregarded merely because the underlying asset was a pre CGT asset. In the above example, CGT is still payable despite the underlying property being a pre CGT asset;
The capital gain from the grant of the easement is not a “discount capital gain” meaning there is no relief from tax and ordinary discounts or concessions afforded for other CGT Events do not apply; and
There is no exemption from CGT even if the asset over which the easement is created is a main residence. In the above example, the property being a main residence would be irrelevant.

It is also important to note that TD 2018/15 confirms that the Determination applies to years of income commencing both before and after its date of issue. Therefore, if you have granted an easement prior to or post 31 October 2018, you ought to ensure you have accounted for any capital gains appropriately.

If you require assistance with any easements or easement related disputes, please contact us on (08) 9321 5451 or by email at phil@bailiwicklegal.com.au.

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au

Bailiwick Legal newsletter September 2018 edition

administrator@heliummarketing.agency (Helium Marketing) — Thu, 04 Oct 2018 07:25:28 GMT

Read all about our activities and catch up on our latest articles :

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My Tourism Business – what are my employment obligations?

Will your family business survive succession?

What are my employment obligations as a tourism business?

Wed, 29 Aug 2018 06:00:06 GMT

In 2016/17, the WA tourism industry directly employed 71,100 people and indirectly created a further 32,800 jobs.

As a sector providing significant employment in our state, it is important for businesses in tourism to understand their legal obligation to their employees.

The majority of employers in tourism will be covered by the national Fair Work Act 2009. The Fair Work Act sets out National Employment Standards (NES), which are 10 minimum employment entitlements that must be adhered to by all employers under the system.

These stands include: maximum working hours, leave arrangements (including annual, personal, parental, community service and public holiday entitlements), the right to request flexible working arrangements, and notice and redundancy requirements.

The NES also required that all new employees must be provided with a Fair Work Information Statement by their employer. You can access a copy here: https://www.fairwork.gov.au/employee-entitlements/national-employment-standards/fair-work-information-statement

Awards & enterprise agreements

Your business may also be required to meet further minimum standards of employment set by a registered agreement or modern awards.

If there is no registered agreement in place, it may be unclear to an employer which, if any, award applies.

Your business may be covered by more than one award depending on the jobs carried out by your employees. You should refer to the section of each award that deals with ‘coverage’ to ascertain whether the award applies to you.

Individual flexibility agreements

If an award or agreement does apply, an employer may choose to vary certain terms of an employee’s employment through a written employment agreement, referred to as an Individual Flexibility Agreement (IFA).

An IFA can assist both parties in structuring an employment agreement that meets their specific requirements. However, only certain terms can be varied, which will be outlined in the award or agreement.

If an employer is varying award or registered agreement terms, the employer must ensure that the employee is better off under the varied agreement than they would be if the relevant modern award or registered agreement applied. This is known as the ‘Better Off Overall Test’ or ‘BOOT’.

An IFA may pass the test even if some benefits have been reduced, as long as overall those reductions are more than offset by the benefits of the IFA.

Occupational Health and Safety (OH&S)

Employers should also be aware of their duty to protect employees from risks in the workplace, including duties imposed by workplace health and safety laws.

The Occupational Safety and Health Act 1984 (WA) and Occupational Safety and Health Regulations 1996 (WA), currently apply to workplaces in Western Australian.

New workplace health and safety legislation in Western Australia has been proposed and is in the consultation phase.

This new legislation is based on the national model work health and safety laws. Other states have now adopted this model, and WA employers should be aware that there are likely to be significant changes to workplace health and safety legislation in WA in the near future.

Further Resources: Resources to assist small businesses to comply with safety obligations, including guides, action plans and checklists, can be found on the WA Department of Mines, Industry Regulation and Safety website at: https://www.commerce.wa.gov.au/worksafe/small-business

If you would like more information on these issues, please contact Bailiwick Legal by calling (08) 9321 5451.

Family and domestic violence leave entitlements for employees

Wed, 01 Aug 2018 06:04:55 GMT

As of 1 August 2018, employees covered by modern awards will be entitled to unpaid family and domestic violence leave.

If an employee is covered by a modern award, their employer will be required to allow 5 days of unpaid family and domestic violence leave each year, in addition, the employee other leave entitlements.

This entitlement will be available to the majority of employees, but does not apply to employees who are:

covered by enterprise awards;
covered by state reference public sector awards;
covered by enterprise and other registered agreements; or
award and agreement free.

These changes have come about following a decision by the Fair Work Commission to update all modern awards to include a clause allowing for leave to assist employees affected by family violence.

Following this decision, employees may take unpaid leave if the employee:

is experiencing family and domestic violence; and
needs to do something to deal with the impact of the family and domestic violence and it is impractical for the employee to do that thing outside their ordinary hours of work.

Reasons for taking leave may include: making arrangements to ensure the safety of the employee’s family, an urgent court hearing and accessing police services.

The employee should provide notice that leave will be taken as soon as practicable.

An employer may request evidence that would satisfy the reasonable person that such leave was required in the circumstances. However, employers should be mindful that they must take reasonably practicable steps to keep any information about an employee’s situation confidential.

If you would like more information on this issue, please contact Bailiwick Legal by calling (08) 9321 5451.

Bailiwick Legal newsletter July 2018 edition

administrator@heliummarketing.agency (Helium Marketing) — Sun, 01 Jul 2018 07:52:32 GMT

Our latest newsletter is out! Make sure to check it to find out what we have been up to recently.

Click here to read more.

What is GDPR and what does it mean to my Australian business?

Fri, 25 May 2018 06:13:52 GMT

What is the GDPR?

In April 2016 the European Parliament adopted the General Data Protection Regulation (GDPR), which regulates how businesses must handle, secure and share the data of EU residents. The GDPR applies from 25 May 2018, and has important implications for organisations inside and outside of the EU, including Australia.

Who is affected?

The GDPR applies to:

EU-based businesses; and
Businesses outside of the EU which:

offer goods or services to individuals in the EU;
have an office in the EU; or
monitor the behavior of individuals in the EU (including profiling of individuals through online data).

Am I affected?

Examples of transactions (of a Western Australian business) that may come under the GDPR include:

Taking an online booking for accommodation in WA from a tourist travelling from Paris;
Obtaining credit card information, from an Australian travelling through Germany, to change their flight home; or
Using information from companies profiling potential customers in Spain through their online preferences.

What is personal data?

The definition of personal data for the purposes of the GDPR is wide and includes any information relating to an identified or identifiable natural person. Such a person is referred to as a ‘data subject’. This information can include basic information, such as a name or address, to information about the person’s health, ethnicity, or credit card transactions.

What do I need to do? – Questions to ask yourself about your business

1. How does my business handle personal data?

The first step is to carry out an audit on your current processes and procedures. Knowledge is power. Without knowledge of how your business collects, uses, transfers, stores and removes personal data, it will be impossible to be sure your business is are meeting its obligations.

2. Does my business have a lawful basis for handling personal data?

Under the GDPR, your business must have a lawful basis for processing personal data. There are 6 lawful bases identified: consent, contract, legal obligation, vital interests, public task (processing data in the public interest) and necessity (where processing is necessary for the legitimate interests of your business). You should be able to identify under which category your business is processing an individual’s data.

3. Is my Privacy Policy (and Privacy Collection Notification Statement) relevant to my business and does it comply with the GDPR?

Having a template privacy policy and statement is not enough. A prime focus of the GDPR is transparency and accountability. A well thought out privacy policy and statement will tell your clients and customers the steps your business is taking to protect their data and comply with privacy laws.

4. Do my third party suppliers comply with the GDPR?

You may still be liable for a data breach that did not occur on your watch, if the breach occurred with data shared with a third party. Your business should take active steps to ensure that relevant third party suppliers also comply with data protections laws, including the GDPR.

5. Has my business taken appropriate steps to secure the personal data it is processing?

The protection of personal data has never been more important. Significant penalties apply under the GDPR (and local privacy laws), and there are stringent requirements for notification and reporting on breaches. Taking measures to ensure adequate protection, can include: deciding when to process personal data, deciding when to destroy it, and ways to avoid the misuse or interference with personal data. As well as ensuring your compliance with the GDPR, such measures will give your customers and clients peace of mind in choosing to entrust you with their data.

Large scale & sensitive data dealings

If you are collecting or processing data of EU individuals on a large scale, or are processing sensitive data, further obligations may apply, including the appointment of a data representative in the EU.

If you would like more information on this issue, please contact Bailiwick Legal at (08) 9321 5451.

Bailiwick Legal newsletter May 2018 edition

administrator@heliummarketing.agency (Helium Marketing) — Fri, 04 May 2018 07:53:32 GMT

Our latest newsletter is out! Make sure to check it to find out what we have been up to recently.

Click here to read more.

Is your employment record keeping up to scratch?

Tue, 01 May 2018 06:17:18 GMT

Employers must give serious consideration as to whether they are meeting their legal requirements for keeping employee records.

Such records are important, not only for calculating what is owed to an employee, but also to address any claims that an employee may make, particularly after a dismissal of the employee.

In Fair Work Ombudsman v Pulis Plumbing Pty Ltd & Anor [2017], it was found that the employer had neglected to pay an apprentice plumber $27,000.00 in unpaid overtime. Pulis Plumbing was fined $100,000.00 and its director, Mr Pulis, was personally fined an additional $21,500.00. These fines followed a finding of numerous contraventions of the Fair Work Act, including a failure to make and keep records and to pay the apprentice his entitlements.

The court relied on the employee’s evidence of the hours he worked, as Pulis Plumbing were unable to provide evidence to dispute the employee’s claim. This decision follows recent amendments to the Fair Work Act (s557C) which provide that an employer who fails to keep time sheets and provide payslips holds the burden of disproving an employee’s claim about hours worked and payments made.

Pulis Plumbing’s failure to keep appropriate records resulted in a costly outcome, especially given that this particular employee only carried out 3 months of work with the company prior to being dismissed.

If you would like assistance or require advice regarding your obligations as an employer, or exposure to an employment related claim, please contact Bailiwick Legal by calling (08) 9321 5451.

Australian Broadcasting Corporation v SAWA Pty Ltd - Right to free speech and publication Case Notes

Tue, 03 Apr 2018 06:20:33 GMT

Video Surveillance of Alleged Animal Cruelty

In 2012 an employee of SAWA Pty Ltd secretly videoed activities involving what they believed to be potential animal cruelty offenses occurring on a cattle station in Western Australia. The videos showed the de-horning of cattle and one animal being put down. After providing the videos to the RSPCA, SAWA and one of their directors were charged with eight animal cruelty offenses.

The Magistrates Court determined that the videos were in breach of the Surveillance Devices Act because they were secret recordings of private activities and conversations, and would usually not be allowed to be shown as evidence. However, in the circumstances of the case the Court decided that the videos would be admitted as evidence despite being in breach of the Act, and they were played to the open court during the trial.

SAWA and the director were subsequently acquitted of seven of the charges and convicted of one; they appealed that conviction and were also acquitted.

ABC’s Application to Publish the Videos

After the appeal, the ABC applied to the Magistrates Court to gain a copy of the videos that had been shown as evidence. The Court approved the application. SAWA became aware that the ABC had a copy of the videos and began legal action to prevent the ABC from publishing the videos. The ABC then applied to the Court to gain permission to publish the videos.

The Surveillance Devices Act provides that recordings of private conversations and activities cannot be published if they came to a person’s knowledge as a result of covert or secret recording, except when a judge is convinced that publication should occur in order to protect or further the public interest.

The ABC argued that publishing the videos would further and protect the public interest by allowing for free communication and debate, especially surrounding the proposed changes to the Animal Welfare Act that are currently being discussed in Parliament. The ABC also claimed that publishing the videos would assist in preventing inhumane treatment of animals and would encourage general debate about animal welfare laws and standard farming practices in different states. ABC’s application was refused, and they appealed this decision.

Freedom of Speech

On the appeal the ABC argued, among other things, that the original judge made an error in the decision by not giving consideration to a legal principle that basically states that legislation should not be interpreted in a way that restricts our basic freedoms and rights. The ABC believed that the judge had to give consideration to the public’s implied right to free speech and that this right should have taken priority over other considerations. The Appeal Court disagreed, explaining that the purpose of the Surveillance Devices Act is to specifically protect against this type of publication and to prioritise free speech would go against the Act’s purpose.

Further, the Appeal Court found that the ABC did not necessarily need to publish the videos in order to achieve the purpose of protecting and furthering public interest. ABC could very easily report on the events that occurred in the video and encourage debate around changes to Animal Welfare law without the videos being shown. The ABC disagreed on this, arguing that images are powerful in informing public understanding of animal cruelty and animal distress and could not be adequately replaced by descriptions. The Court reasoned that the recordings would not positively enhance public understanding or debate on the issues to any significant degree.

Uncontrolled Publication

The Court also discussed concerns with allowing covertly recorded videos to be published in what is arguably an uncontrollable manner.

The ABC’s application to publish the videos laid out the purposes for which they believed publication should occur, as discussed above. Even if these purposes were considered valid, the Appeal Court expressed concern that the inability to control republication of the videos would cause damage to the privacy protections that the Act was designed to provide to the public.

The ABC may have followed the rules of how and why it would be given permission to publish the videos, but there would be no way to prevent others from republishing the videos for whatever purposes they wished. This would potentially destroy the protections that the Act was designed to provide. Republication via social media is common and it would be impossible for a Court to enforce any limitations on how or why the videos would be republished.

Conclusion

The right to free speech is seen by most Australians as a common law right with far-reaching implications. While Australian Courts have accepted that an implied right to freedom of political communication exists in our Constitution, that right is not one without limitations.

As this case has demonstrated, the Courts respect that the right exists and that it serves to further the public interest in understanding and engaging with political debate. However, legislation that also stands to serve the public interest in some manner – in this case privacy protection – should not be overlooked in order to extend that right beyond what is necessary.

Reporters have a variety of opportunities to engage the public in political debate and enhance public understanding, upholding the implied right to freedom of political communication. Publishing videos is not always necessary in order for that right to prevail and should not do so when it directly goes against the protections extended to the public by the Surveillance Devices Act.

For any questions or further information on the above please contact Philip Brunner on 0427 783 168 or email: phil@bailiwicklegal.com.au

Changes to the Australian Privacy Act 1988 - Mandatory data breach notification requirements

Fri, 23 Feb 2018 06:24:35 GMT

From 22 February 2018, all entities that are covered by the Australian Privacy Act 1988 ( Privacy Act ) will be subject to mandatory data breach notification requirements.

Currently, the Privacy Act covers Australian Government agencies, businesses and not-for-profit organisations with an annual turnover of $3 million or more, credit reporting bodies, health service providers, and TFN recipients, among others.

If an entity is aware of reasonable grounds to believe that:

there has been a data breach;
such data includes personal information; and
The breach is likely to result in serious harm to the individual affected,

it must report this to both the individual and the Australian Information Commissioner.

Even if your business is not affected by these changes, we still recommend that you review your privacy policy to ensure the safety of your clients’ personal information and your business reputation.

If you would like assistance or require advice regarding your obligations under the Privacy Act, or reviewing or updating your company policies, please contact Bailiwick Legal at (08) 9321 5451.

Was it ‘promised’ or just expected? Death, Assets and the subject of testamentary promises

Wed, 07 Feb 2018 06:22:15 GMT

It is common in farming families for children to dedicate significant time to working on a family farm (often for minimal ongoing financial reward) based on a verbal promise, belief or understanding that someday the farm will become theirs.

Arrangements like this often continue for decades without any formal documentation being put in place or one party erroneously believing that ‘everything has been taken care of’ by the promising party.

Matters come to a halt however when the owner of the farm passes away and the working child discovers that, despite devoting their life to the farm, no provision has been made for the farm to pass to them. All they have to rely on is a ‘testamentary promise’ at best.

It is then up to the Courts to decide on the validity of the ‘promise’ and how that promise is to be treated relative to any other competing claims. Questions are often raised about whether the testator actually made a promise or whether the working child simply held a mistaken belief or expectation that the farm would one day become theirs. The onus lies with the child to prove on the balance of probabilities that the promise was made.

Additional complications can also arise where farmlands are held via discretionary trust structures and where the person making the promise is not in fact the owner of the land and the land does not form part of their estate on death.

Testamentary promise arguments extend beyond just farmlands. They are also raised in situations where one party has provided care or other services to another in return for the promise of an asset or larger share of an estate.

Testamentary promise cases are complex, lengthy and expensive. The best form of protection is to ensure that arrangements are accurately documented whilst all parties are still alive. This enables all parties to clearly communicate their intentions and understandings.

If you would like assistance with documenting any testamentary promises or require advice on wills, contesting estates or other estate related matters, please contact Bailiwick Legal by calling (08) 9321 5451.

Employee accommodation: what happens after the employment relationship ends?

Wed, 17 Jan 2018 06:26:25 GMT

In many cases in rural WA, when taking on an employee, part of the employment package includes the use of a house, whether this is on the farm or in the local town.

We are often asked for advice and assistance on the proper processes to be implemented where the employment relationship has deteriorated and the employer is looking to dismiss the employee, including situations where the employee lives in accommodation provided as part of the employee’s employment package.

In this situation, a complication that may not have been considered is that, as well as the rights of the employee under an employment agreement (whether that is a written or verbal agreement), the employee may have additional rights under the Residential Tenancies Act 1987 ( the Act ).

A key requirement of this Act is that the tenant (in this case the employee) be given written notice, in the prescribed form, specifying the owner’s (employer’s) grounds for terminating the tenancy agreement.

There are specific periods of notice of termination required under the Act, usually 60 days from the date that notice is given. This means that the tenant (employee) can remain in the accommodation for 60 days from the day that notice is given.

Often when an employee is dismissed, the accommodation is required for a new employee taking over the role. However, the former employees’ rights under the Act means that he or she may remain in farm accommodation even after the employment has ended.

Notice of termination of employment is not the same as notice of termination of Tenancy – you must do both.

If, after proper notice is given to the employee, the person refuses to move out, a court order can be sought to move the person on. This can be a difficult and time consuming process and potentially costly.

However, we consider that there are certain circumstances where either the Residential Tenancy Act does not apply, or where measures can be taken to ensure that the obligations of the owner of the property can be met without having to apply a lengthy notice period and thereby prevent a new employee, or the owner, from using the accommodation.

For further information or advice on the above issue, or employment or property related matters, please contact Bailiwick Legal at (08) 9321 5451.

Smoke alarm exemption for dwellings proposed for demolition - WA's Building Regulations 2012

administrator@heliummarketing.agency (Helium Marketing) — Fri, 12 Jan 2018 06:28:52 GMT

Western Australia’s Building Regulations 2012 require owners of residential dwellings to have compliant smoke alarms installed prior to the sale, transfer of ownership, rent or hire of the dwelling.

Changes to the Regulations that come into effect on 22 January 2018 provide an exemption for owners who are transferring ownership to a person intending to demolish the dwelling.

The incoming owner must provide the Seller them with a declaration of intended demolition before the transfer of ownership.

A declaration of intended demolition is a statutory declaration made by the new owner, declaring they intend to demolish the dwelling within six months of the transfer day.

Contact Bailiwick Legal for more information or assistance with your statutory declaration and Property Transfer.

To read more about the Smoke Alarm Laws visit the Department of Mines, Industry Regulations and Safety : Smoke Alarm Laws

Sexual Harassment in your Workplace - What is Workplace sexual harassment?

administrator@heliummarketing.agency (Helium Marketing) — Wed, 29 Nov 2017 06:38:48 GMT

Do you know where to draw the line?

https://www.humanrights.gov.au/our-work/sex-discrimination/projects/sexual-harassment-know-where-line

Sexual harassment is an ongoing problem in our workplaces and comes at a considerable cost, both to your employees and to your business. It is important that as an employer you take active steps to prevent sexual harassment and respond effectively when it occurs. The usual response to those who raise complaints about sexual harassment “it was just a bit of banter” or “just teasing” or that the person harassed “cannot take a joke”, is simply no legal defense.

Sexual harassment is defined in the Sex Discrimination Act as any unwelcome sexual advance, request for sexual favours or conduct of a sexual nature in relation to the person harassed in circumstances where a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

The best response for employers and managers is to take all complaints of sexual harassment seriously, listen to the person making it, ask them what they would like to be done. If you need support with the process contact your lawyer.

Parent to Child loans - Tips for parents considering making loans to their children

Fri, 22 Sep 2017 06:36:56 GMT

It is becoming common in today’s society for parents to help their adult children by giving them a financial kick start in life – but don’t let your generosity come back to haunt you.

When contemplating providing financial assistance the starting point for parents is to decide whether the monies are to be advanced as a gift or a loan.

In most cases, particularly where larger amounts are involved, parents generally wish to advance monies as a loan. Where this occurs, we often see disputes arising because the child:

becomes involved in Family Court proceedings. Their spouse claims the monies were a gift and wants a share,
decides to dishonour agreements made with their parents due to a breakdown of the relationship,
becomes bankrupt and their trustee in bankruptcy seeks to have the funds classed as an asset instead of a liability, or
tries to depart from the agreement upon the death of the parents, leading to disputes between siblings and other beneficiaries.

Unfortunately, in most of the above situations it is up to the parents (or their executors) to prove that monies advanced were loans and not gifts, and that they remain owing by the child. In order to be successful, a clear paper trail and proper loan agreements are required.

Sadly, too many of these monetary advances are either never documented, or documented without assistance from suitably experienced lawyers.

Tips for parents considering making loans to their children

Ensure the loans are acknowledged in writing by both the children and the children’s spouse/partner. This makes it harder for a child or spouse to renege on the agreement later.
Ensure that the child makes at least some repayments of the principal or pays interest annually. This will help to confirm the arrangement as a loan.
Consider taking security over the loan, such as a mortgage. This will better protect you should a dispute arise involving a spouse or creditor. If your loan agreement is not secured by a mortgage, in the case of bankruptcy, you will be just another unsecured creditor and may never be repaid.
Update your estate planning documents to ensure that they reflect your intentions regarding the loan. Will it be forgiven on death? If so, will the other children be compensated with a greater share of the estate?
Ensure your accountant, advisor, executors and attorneys are aware of the loan and your intentions concerning whether the loan is to be forgiven or repaid.
Consider what is to happen with the loan if your child dies before you.
Seek advice as to who ought to lend the monies. Will you lend personally, or will an entity associated with you lend the monies?
Seek advice on the tax implications to you.

At Bailiwick Legal, we are experienced in parent to child loan agreements (secured and unsecured). We can guide you through the potential pitfalls, offer you sound legal advice and ensure that the arrangement is documented in a robust manner.

Selling a Property worth $750,000 or more? Know the ATO Foreign Resident Capital Gains Tax Clearance Certificate

administrator@heliummarketing.agency (Helium Marketing) — Tue, 27 Jun 2017 06:40:37 GMT

From the 1st of July 2017 all sellers entering into a contract of Sale for $ 750,000 plus must apply for an ATO Foreign Resident Capital Gains Tax Clearance Certificate.

Failure to provide this Certificate will cost you 12.5% of the sale price at settlement time*.

Don’t be confused by the Title – even if you were born and raised in Australia you need to provide this Clearance Certificate. Should you have outstanding taxation returns or other unresolved matters with the ATO then you may not receive the Certificate, so make sure when you are preparing to sell, that you get advice from a qualified Conveyancer.

for more information :

https://www.aicwa.com.au/sites/default/files/user-content/foreign_cgt_1_july_2017-6.pdf and https://www.ato.gov.au/

(* the 12.5 % is paid to the ATO who will then assess your obligations to Capital Gains Tax)

What happens to your estate if you die without a Will?

Tue, 30 May 2017 06:42:41 GMT

Have you ever wondered what would happen to your estate if you died without a Will?

The majority of us spend our lives working hard to build a financially stable future for ourselves, our children and our families. Yet despite our work ethic and efforts, unfortunately more than 50% of us will die having failed to implement any form of Will to address the transfer of our wealth to our loved ones.

After more than 10 years advising clients in the area of wills and succession planning, one thing is clear…very few clients actually understand how their estate will be divided if they die without a Will (also known as an “intestacy”). Clients can often be divided into 2 groups, the ones who worry the government will take it all and those who mistakenly believe that everything will first pass to their surviving spouse and then equally between their children. Neither of these views are entirely correct.

In WA, legislation governs the fate of your estate assets if you die without a Will. The legislation contains a table which sets out how a person’s estate is to be divided upon death. The table covers situations where a person dies with or without, partners, children, parents and/or siblings.

Let’s look at one example…

Mum, Dad and 3 children aged 12, 16 and 18. Their main asset is their family home which is registered in mum’s name only.

Mum dies leaving behind dad and the 3 children. How will her estate be divided?

Dad will receive:

all of mum’s personal items
the first $50,000 of mum’s estate, and
1/3 of the balance of mum’s estate.

The children will each receive an equal share in the remaining 2/3 of the balance of mum’s estate upon 18 years of age.

This might not appear completely inappropriate at first thought, but what does it mean in practical terms?

Well, the children upon reaching 18 years of age can force dad to sell the family home. If the 18 year old happens to have a drug addiction or a spending habit, this would mean a large sum of disposable funds would be made available to him/her at a very early age – in the meantime, dad and the younger children could be left homeless.

A Will would solve many issues in the above situation. It could provide for the home to pass to dad upon mum’s death, and divide the estate equally between the children if dad failed to survive mum. A special protective trust could be created for each of the children to ensure that their inheritances are protected until they reach a later age, perhaps 25 or 30 years of age. This type of protective trust could fund the children’s education and day to day costs but preserve the capital assets until they are each old enough to manage a large sum of money.

As you can see, an intestacy is often not reflective of a deceased’s testamentary wishes and results in undesirable distribution and tax outcomes for surviving relatives.

If you are one of the 50% without a valid Will, or perhaps someone with an outdated Will, please contact us to arrange a time to meet and discuss your requirements, your loved ones will thank you for it.

Finally, for those of you still wondering… “yes”, the State Government will take your estate but only if you are not survived by any relatives.

Size does Matter! What all Small Business Employers must learn

administrator@heliummarketing.agency (Helium Marketing) — Wed, 07 Dec 2016 06:53:06 GMT

A Small Business Employer is defined under the Fair Work Act 2009 (FWA) as being an employer with fewer than 15 employees.

Being a Small Business Employer provides a number of concessions under the FWA such as an exemption from redundancy pay; a 12 months’ protection window from unfair dismissal claims; and an additional defence to an unfair dismissal claim by demonstrating compliance with the Small Business Fair Dismissal Code.

For the Small Business Fair Dismissal Code & Checklist see: Small-Business-Fair-Dismissal-Code

But do your casuals count as part of your 15 employees? One of the key factors is whether your casuals have been employed on a “regular and systematic” basis.

EMPLOYMENT CRITERIA

In the case of Harry Grives v Aura Sports Pty Ltd (2012) FWA 5552a number of criteria were established to identify whether a casual was to be included as an employee.

The employee need only have been employed on a “regular and systematic” basis at some stage during their employment with the employer;
The employee does not need to have a reasonable expectation of ongoing employment with the employer;
Employment on a “regular and systematic” basis does not require the employee to be able to foresee or predict when their services may be required by the employer; and
The pattern of employment must demonstrate the employer’s ongoing reliance on the employee’s services in the conduct of the employer’s business.

Significant gaps in periods of employment and lack of any consistent pattern in the hours worked shows that a company does not rely on the casuals’ services in the conduct of its business. In such a circumstance, for the purposes of the FWA, the casual would not be counted as an employee.

LESSONS FOR EMPLOYERS

When determining whether an employer employs fewer than 15 employees at the date of a dismissal to attain “Small Business Employer” protection, the following classes of employee are counted:

All permanent part-time and full-time employees of the business;
All permanent part-time and full-time employees of the business of an associated entity (e.g. companies with common directors or ownership,
Casual employees of the business, or the business of an associated entity offered regular employment over a protracted period of service, regardless of:

any variation in the hours they may work; or
whether they have a reasonable expectation of ongoing employment with the business.

For the Small Business Fair Dismissal Code & Checklist see: Small-Business-Fair-Dismissal-Code

This article is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer.

Playing Fair with the Family Farm - Disputes regarding family farms

Fri, 13 May 2016 06:55:40 GMT

Playing fair with the family farm - Succession, disputes ...

Rural enterprises, like many small to medium sized businesses are typically a ‘family affair’. Mum and dad work together, the business and land are in their name and/or control, and the children help according to their age and ability. This scenario usually works well while dependent children are still learning essential industry skills from senior family members.

Once children have grown to adulthood and begin to consider their place within the family business structure, formerly productive working arrangements can change dramatically. Who will farm the land, run the associated business, live at the homestead and ultimately inherit the property? In families where there are a number of siblings, these types of questions can cause bitter family divisions if they have not been dealt with honestly and openly by parents.

The addition of spouses and another generation of offspring usually creates a tipping point within the family dynamic whereby unmet expectations rise and poor communication can threaten to destroy a lifetime of hard work.

There have been many cases where grown children have been forced into court to enforce promises made by their parents. Usually they work for little comparative remuneration on the promise that the family farm and its associated business will be theirs at some point in the future.

Generally, nothing is ever written down and as the years pass, no property is ever legally transferred from one family member to another. Adult children pass up other employment opportunities and eventually find themselves waiting for an inheritance or financial interest that may never come their way. This type of situation can give rise to a claim of equitable estoppel, which essentially means that any promise made to a child in this kind of circumstance should be kept.

There are also situations where the actions and behavior of the parents have led the child to reasonably believe that they will be rewarded for their endeavors and input into the family business, even if this has never been stated. In these instances, the courts will look at their contribution to the business and the intention shown by all those concerned that they had a ‘stake’ in the successful operation of the rural enterprise.

Adult children who work on their parent’s farm may believe that their interest in the property has been clearly established by an unspoken understanding that they will inherit the property. This can give rise to a claim that a constructive trust exists on the grounds that it would be unconscionable for the parents to maintain beneficial ownership when it is clear that the child is working to benefit the family business.

A lack of communication and/or an unwillingness to acknowledge and commit to a decision can often lead to expensive legal action. It is essential to remember that these types of dispute have the ability to decimate a family’s business interests and irrevocably tear relationships apart.

For further information or guidance regarding these issues please call us at 9321 5451.

Latest Forge decision reinforces power of Personal Property Securities Act (PPSA)

Wed, 30 Mar 2016 07:01:52 GMT

Forge Group Power Pty Limited (in liquidation) (receivers and managers appointed) v General Electric International Inc. [2016] NSWSC 52

A recent Court decision reinforces the critical need to register security interests over personal property under the Personal Property Securities Act (PPSA) to avoid losing that property. A simple failure to register under the PPSA led to Forge Group Power Pty Ltd (Forge) gaining about $50,000,000 worth of mobile gas turbine generator sets, despite not being the ‘true’ rightful owner.

Background

General Electric International Inc. (GE) and Forge entered into a contract for the lease of turbine generators on 5 March 2013 as part of the construction of a temporary power station near Port Headland in Western Australia.

In what would become a fatal omission, the generators were not registered on the PPSA’s Registry in accordance with the PPSA (a relatively quick and inexpensive, albeit unnecessarily confusing, process).

On 11 February 2014 Forge went into voluntary administration and subsequently liquidation on 18 March 2014.

Forge, through its liquidators, sought declarations from the NSW Supreme Court that GE’s interests in the generators vested in Forge immediately before the appointment of the administrators pursuant to the provisions of the PPSA. GE raised a number of defences in the action, one being particularly desperate. GE’s defences ultimately failed.

The Outcome

On 11 February 2016 the Court found that the lease for the generators was a “PPS Lease”, a security interest artificially created for certain lease arrangements by and for the purposes of the PPSA. As a result, GE was required to register that security interest in accordance with the PPSA to protect that interest in the event of Forge becoming insolvent.

By not registering the equipment, the Court found that GE’s interests in the generators had vested in Forge immediately before Forge went into administration. The proceeds that will come from the sale of the generators will therefore go into the pool of funds to be distributed amongst Forge’s numerous creditors.

This decision highlights:

why the PPSA is widely perceived to ignore common-sense in favour of producing technical and grossly unreasonable results;
the critical importance to register security interests over personal property accurately and within the PPSA’s statutory timeframes; and
the need for proper due diligence when purchasing a business to ensure its assets are adequately protected under the PPSA.

For further information or guidance regarding the PPSA, please contact Phil at (08) 9321 5451

New Law for ‘Not for Profit’ Associations and Clubs - Model Rules in the Associations Incorporation Act 2015

Thu, 11 Feb 2016 06:58:45 GMT

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There will be few of us whom have never had any involvement with an incorporated association or club. In Western Australia they include groups ranging from the local country football club to our very own Farmers Federation. It is significant to remember that the amazing volunteer fire-fighters who have bravely fought to protect home and hearth throughout this terrible bushfire season are members of a ‘not for profit’ association.

At present many social, sporting and community groups are incorporated under the Associations Incorporation Act 1987 however, this situation is due to change from 1 July 2016 with the proposed introduction of the Associations Incorporation Act 2015. We will briefly examine some of the key changes to the law due to be enacted soon.

MODEL RULES

The new Act will introduce a set of Model Rules designed to help simplify the process for incorporation and set out minimum standards for accountability. Existing associations’ constitutions may need to be modified to successfully reflect the new legal requirements.

The Model Rules are not compulsory but must be adopted if the existing association’s laws do not comply with the new laws.

Compliance will be essential for organisations to demonstrate eligibility to be considered a ‘not for profit’ incorporated association. Associations will have three years from the time the new law commences to ensure that either their rules are consistent with the new law or to adopt the new model rules.

COMMITTEE MEMBERS OBLIGATIONS

The new Act codifies the obligations that already exist within the common law in regards to committee members. They include provision for: the duty of care and diligence; the duty to act in the best interests of the association and for a proper purpose; and the duty of a committee member not to misuse their position or information. Other changes include the introduction of stricter eligibility requirements for those people seeking a seat on management committees.

ACCOUNTABILITY

The new Act will require incorporated associations to demonstrate different levels of financial accountability based upon their revenue. There will be a three tired system which will create different reporting requirements dependent upon the association’s revenue.

Tier 1 associations have revenue of less than $250,000. They can chose to prepare basic financial statements with no independent review or audit. Tier 2 associations are those with revenue from $250,000 to $1,000,000. They must prepare financial reports in accordance with Australian Accounting Standards and these reports must be reviewed by a member of a professional accounting body. Tier 3 associations are those with revenue of more than $1,000,000. These associations must prepare financial reports in accordance with Australian Accounting Standards and reports must be audited by a member of a professional accounting body holding a public practicing certificate.

WHAT NEXT?

The new Act is aimed to improve accountability, minimise administration and compliance costs, and align our State legislation with contemporary laws already existing in other Australian jurisdictions.

To be ready for the changes coming there are a number of things you can do. The first step is to find out more about the changes by viewing and downloading a copy of the Associations Incorporation Act 2015 from the State Law Publisher website. Secondly, check that the details of your association are up to date at ‘Associations Online’ via the Department of Commerce and sign up to their newsletter. Thirdly, start talking to your members about the rule changes you will need to make.

These associations and clubs contribute to rural and farming communities’ vibrancy and engagement with the world around them. For the work of these groups to continue without disruption, it is important that these new laws are given proper consideration.

For further information and guidance contact Phil at (08) 9321 5451