Insights

• “I’m not bound.” “Yes you are!” “No I’m not!” - The tricks and traps of heads of agreements - Sometimes it can be difficult to clearly distinguish between what does and does not constitute a binding agreement. Are we still negotiating? Is this deal done?
• “Large proprietary companies” to double in size - The thresholds for determining whether a proprietary company is considered “large” will double from 1 July 2019, reducing the compliance burden of companies that no longer fit this category (including financial reporting requirements and the need to have a whistleblower policy).
• “Please do not give me CPR”: ‘Do Not Resuscitate’ requests in retirement living - Retirement village operators are receiving an increasing number of ‘Do Not Resuscitate’ (‘DNR’) requests from their residents. This introduces the uncomfortable prospect of counter-intuitively withholding CPR (cardio-pulmonary resuscitation) in the event a resident is found unresponsive.
• 1 January 2019 deadline for Casual Conversion Notification - Further to our previous Alert, the Fair Work Commission has now inserted casual conversion clauses into a number of modern awards. It is important to be aware that if a modern award applies to your casual employees, you may be required to notify them of their conversion rights by 1 January 2019.
• 8 legal issues for home care providers in the world of COVID-19 - To date, much of the focus within the aged care industry in relation to COVID-19 has been directed at residential care – the government directives exclusively so. However the home care sector is also facing unprecedented challenges arising from the COVID-19 crisis.
• A Guide to Buying Commercial Property - Buying commercial property (such as a warehouse, office building or retail space) is more complicated than buying a residential property. There are complex contract terms, detailed planning information and additional legal and commercial implications if the premises are leased.
• A New Direction for Victorian Government Public Construction - With effect from 1 July 2018, when procuring public construction works and services, Victorian government departments and public bodies must adhere to mandatory Ministerial Directions for Public Construction Procurement in Victoria (Directions) and Instructions for Public Construction Procurement in Victoria (Instructions).
• ACCC continues to press big business to cut unfair contract terms - Stevedore companies DP World Australia, Hutchison Ports Australia and Victorian International Container Terminal (VICT) have agreed to remove or amend terms in their standard form contracts that the ACCC considered were likely to be “unfair” within the meaning of the Australian Consumer Law.
• ACCC Crackdown on Unfair Contract Terms - Are Your Contracts Fair? - ACCC Crackdown on Unfair Contract Terms - Are Your Contracts Fair?
• ACCC steps in as standard form contract goes pear-shaped - The ACCC has continued to show its willingness to deal with businesses that fall foul of the Australian Consumer Law (ACL) unfair contract terms provisions.
• ACL unfair contract terms provisions start to bite: JJ Richards contract terms declared unfair and void - The Federal Court of Australia has made orders by consent declaring unfair and void eight terms in JJ Richards & Sons’ standard form contract.
• Additional Services and My Aged Care: some much needed clarity? - On, or around 22 July 2019, the Department of Health updated its My Aged Care website section on aged care fees to include the following section regarding additional services.
• Advance Care Directives and Medical Treatment Decision Makers - 4 things for health practitioners and facilities to be aware of - The new Medical Treatment Planning and Decisions Act 2016 has now been operable for almost two months. The new Act introduced legal Advance Care Directives and changed the mechanism for appointing a person to make decisions on your behalf if you lose capacity.
• Aged care and the COVID-19 pandemic: 10 legal tips for residential aged care providers - The World Health Organization today declared COVID-19 a pandemic. With cases rising in Australia, particularly from community transmission, COVID-19 will present significant ongoing challenges to the aged care industry for months to come.
• Aged Care Bulletin 1 August 2019 - The latest insights from our award winning Aged Care legal team.
• Aged Care Bulletin 20 February 2020 - The latest insights from our award winning Aged Care legal team.
• Aged Care Bulletin 29 August 2019 - The latest insights from our award winning Aged Care legal team.
• Aged Care Bulletin 5 December 2019 - The latest insights from our award winning Aged Care legal team.
• Aged Care Bulletin 8 October 2019 - The latest insights from our award winning Aged Care legal team.
• Aged Care Video Alert: Dignity of Risk - Dr Melanie Tan provides a video update on dignity of risk in the aged care sector.
• Aged Care Video Alert: Voluntary Assisted Dying Update - 25 June 2019 - The Voluntary Assisted Dying Act 2017 (Vic) (Act) commenced in Victoria on 19 June 2019. We have prepared a short video to keep you updated on the information you need to know and be aware of: • What is VAD and who does it apply to? • What is the role of aged care providers? • What do you need to do to prepare?
• AGM Report Card from ASIC: "Significantly less tumultuous" - On 29 January 2018, ASIC published its overview of the 2017 annual general meeting (AGM) season, concluding that the latest AGM season was “significantly less tumultuous” than previous years.
• Alternative law on the calculation of solatium for compulsory acquisition of land - When an interest in land is compulsorily acquired, a claimant can be entitled to solatium pursuant to s.44 of the Land Acquisition and Compensation Act 1986. Solatium is compensation for the intangible and non-pecuniary disadvantages resulting from the acquisition.
• Amendments to the Building Act 1993 on 16 August 2017 - The Building Amendment (Enforcement and Other Measures) Act 2017 (“Amendment Act”) which received royal assent on 23 May 2017, proposes amendments to the Building Act 1993 (“Act”).
• Amends to the Insolvency Law Reform Act - On 1 March 2017 the Insolvency Law Reform Act 2016 (ILRA), came into effect, significantly changing the rights of creditors to access information from Trustees and Liquidators. The Insolvency Law Reform Act amended the Bankruptcy Act 1996 (Cth) and the Corporations Act 2001 (Cth) by adding what have been called the “Insolvency Practice Schedules” (IPS).
• An update on the Royal Commission into Victoria’s Mental Health System - With public hearings finishing up on 26 July 2019, now is a good time to reflect on how the Royal Commission into Victoria’s Mental Health System has progressed and what we can expect moving forward.
• Annualised wages – new obligations on employers - Earlier this year, the Fair Work Commission published its decision in relation to the 4 year review of annualised wage arrangement provisions in modern awards, available here. From 1 March 2020, annualised salary clauses in many awards will be replaced with a standard clause containing more comprehensive obligations. Standard clauses will also be added to other awards.
• Are Guarantees in Aged Care Unenforceable? - RK have recently become aware of an article making some questionable claims about third party guarantees in residential aged care.
• Are you being watched? The risks of "nanny-cams" in residential aged care - There has been commentary advocating the increased use of hidden cameras in the aged care industry.
• Are you paying superannuation on annual leave loading? ATO clarifies position - Superannuation contributions are calculated on an employee’s ‘ordinary time earnings’ (OTE). The ATO has recently confirmed that OTE may include annual leave loading.
• ASIC introduces e-lodgement - ASIC now facilitates the electronic lodgement of fundraising and takeover documents that have historically been provided in hard copy at ASIC offices. Further, as of 4 July 2018, the fees for a number of document lodgements and applications have increased.
• ASIC releases final guidance on whistleblower policies and relief for smaller not-for-profits - The new Australian whistleblower laws commenced on 1 July 2019 and included a requirement that all “public” (including not-for-profits registered as public companies limited by guarantee) and “large proprietary” companies have a complying whistleblower policy in place from 1 January 2020.
• ASIC Report on the Regulation of Corporate Finance - ASIC has published its latest report on corporate finance regulation in Australia, recently releasing Report 567 ASIC Regulation of Corporate Finance: July to December 2017 ("Report").
• ASIC Report on the Regulation of Corporate Finance - Update - ASIC has published its latest report on corporate finance regulation in Australia, recently releasing Report 589 ASIC Regulation of Corporate Finance: January to June 2018 ("Report").
• ASIC Report on the Regulation of Corporate Finance - Update 28 March 2019 - ASIC has published its latest report on corporate finance regulation in Australia, recently releasing Report 612 ASIC Regulation of Corporate Finance: July to December 2018 ("Report").
• Australia Still Attracting Foreign Investment - On 29 May 2018, the Foreign Investment Review Board (FIRB) released its Annual Report for the year ending 30 June 2017, finding that Australia remains an attractive destination for foreign investment despite a significant reduction in the number and value of residential real estate applications.
• Australian Consumer Law Update - May 2019 - Principal and Corporate & Commercial practice group leader Rohan Harris provides an update on Australian Consumer Law.
• Australian Consumer Law video update: Extended Warranties - New Mandatory Text - Stephanie Quatela, associate in the Corporate and Commercial team at Russell Kennedy Lawyers, provides and update on Australian Consumer Law.
• Banking Royal Commission – Key lessons for company directors - The Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry has concluded with the Honourable Justice Hayne submitting his final report on 1 February 2019.
• Better, but not best - new intestacy laws - Do you have a valid Will? Do you know what would happen to your assets if you died without a Will tomorrow?
• Bill Kills Sunset Clauses - If the Victorian government’s Sale of Land Amendment Bill 2018 (Bill) is passed, property developers will have to obtain the purchaser’s consent to rescind the contract under a ‘sunset clause’ in a residential off-the-plan contract of sale for land (Contract).
• Bitcoin & Death - What will happen to your Facebook account when you die? How about your tweets on Twitter? Photos on iCloud? What about your songs on iTunes?
• Brand Protection - Put yourself in these shoes…
• Brodie’s Law – Workplace Bullying - On 31 May, 2011 the Victorian Parliament passed the Crimes Amendment (Bullying) Act 2011, referred to in the media as “Brodie’s Law”, amending the Crimes Act 1958. The purpose of the law was to alter the crime of stalking to include behaviour that is generally characterised as bullying.
• Building Act Injunctions - Supreme Court Judgment - The recent Supreme Court judgment of Carson v Turner & Ors [2019] VSC 427 has the potential to raise issues regarding the enforcement of building orders.
• Bullying by management: How to get it wrong and then get it right - A recent Fair Work Commission decision demonstrates the hurdles for employees seeking orders to stop bullying.
• Bupa case and the impact on additional services - The recent coverage around the Australian Competition and Consumer Commission (ACCC) filing in the Federal Court against Bupa marks a first in the regulation of aged care providers.
• Businesses must consider Modern Slavery risks - Last week representatives from Russell Kennedy attended a Panel Discussion held by Project Respect on the Modern Slavery Bill 2018 (Cth) (the Bill).
• Buyers of New Homes to pay GST to ATO - Buyers of New Homes to pay GST to ATO
• Buying a Unit? Why Strata Inspections are Important - When purchasing a strata unit: - It is extremely important from a due diligence point of view to arrange for an independent strata books and records inspection of the Owners Corporation records to be carried out prior to entering into a Contract to purchase a strata unit (residential or commercial); and
• Cafes, restaurants and bars – what to do if the Government closes your doors - Usually, it's the change of season that influences people’s plans to head out and eat. Restaurant, bar and café owners are prepared for a rainy day as summer turns to autumn. But nothing has quite prepared the hospitality industry for the unprecedented effects of COVID-19.
• Can you “set and forget” your estate plan? - A well-crafted Estate plan can be flexible enough to work for a number of years. It can be drafted to have “one eye on the present” and “half an eye on the future”. But even the best laid plans can be undone by the unforeseeable. So what could prompt you to review your Estate plan?
• Case Study: Does a grandparent have a duty to provide for their grandchild under their Will? - The Supreme Court of Victoria recently released its judgment of Veniou v Equity Trustees Limited [2018] VSC 832. Russell Kennedy acted for Equity Trustees in successfully obtaining summary judgment and defending the application made by a grandchild who made a claim for provision against her grandmother’s estate.
• Changes to the Health Complaints Act 2016 and the Health Services Act 1988 - The Health Legislation Amendment and Repeal Bill
• Changes to the Main Residence Exemption for Expats: The effect on deceased estates - As previously set out in ‘Expats have until 30 June 2020 to sell main residence’, legislation assented to on 12 December 2019 radically amended the availability of the main residence exemption on capital gains tax (CGT) for foreign residents for tax purposes.
• Changes to the Medical Power of Attorney Legislation - Is your estate plan complete? New laws provide for comprehensive appointment of medical treatment decision makers
• China’s restriction on import of recyclables - impact on Victorian Local Government - What has happened? On 1 January 2018 the People’s Republic of China (China) imposed restrictions on the import of recyclable materials into China.
• Choosing the Right Executor - Choosing the right executor isn’t necessarily difficult but in this blog we’ve put together some tips to make it easier.
• Claiming for Building Defects: A guide to limitation periods - Before contemplating litigation for building or strata defect claims the first thing that you need to ask yourself is “Am I out of time?” When claiming for building defects there are limitation periods.
• Classifying employees under an enterprise agreement or modern award - A recent Fair Work Commission decision highlights the importance of properly identifying and communicating an employee’s classification under an award or enterprise agreement.
• Climate change strategic litigation – a glimmer of hope from New Zealand - In November last year, law student Sarah Thomson lost her legal battle with New Zealand’s Minister for Climate Change Issues. While her application was unsuccessful, Justice Jillian Mallon’s judgment may give some hope to those in other common law countries when considering strategic litigation related to climate change.
• Code of Conduct: Transition Towards Implementation - With the introduction of the Retirement Living Code of Conduct (the Code), operators have a transitional period of 12 months to ensure they are ready to fully comply with the Code.
• Consumer Directed Care & Self-Management in Home Care - As more consumers self-manage their home care packages - what are the risks for providers and how can those risks be minimised?
• Converting the (casual) masses: Fair Work Commission expands the rights of casual workers - Share  Email  Print As part of the Fair Work Commission’s four-yearly review of modern awards, on 5 July 2017 the Commission handed down a decision which will allow many more casuals to convert to permanent full-time or part-time employment.
• Corrupting benefits laws – what do employers need to know? - The Fair Work Act 2009 (Cth) has been amended to prohibit “sweetheart deals” between employers and unions by criminalising “corrupting benefits” passing between them.
• Could you be in a de facto relationship and not even know it? - The Family Law Act contains provisions which set out the requirements for a de facto relationship by law. De facto relationship laws in NSW cover a range of family law issues including the division of property, maintenance, financial agreements, and the superannuation of individuals in these relationships. The provisions of the Family Law Act apply to both heterosexual and LGBTQI relationships. Also, The Child Support (Assessment) Act applies to same-sex couples.
• Court considers the meaning of a 'bedroom' in a rooming house case - Magistrates’ Court affirms Improvement Notice issued under the Public Health and Wellbeing Act
• COVID-19 - How to protect your employees - The World Health Organisation has declared COVID-19 a pandemic. Employers are now facing hard choices as to how to protect their workforce, clients and business in this increasingly anxious climate.
• COVID-19 – Is it time to get a contingency plan in place for your AGM? - Given the uncertainty with COVID-19 at the present time there are a number of options that companies need to consider when contingency planning for their Annual General Meeting (AGM).
• COVID-19 Insolvency Update: Temporary Relief for Financially Distressed Businesses - The Federal Government has recently introduced the Coronavirus Economic Response Package Omnibus Bill 2020 (Bill).
• COVID-19 payroll tax relief measures - The majority of State and Territory Revenue offices have recently announced various measures to provide payroll tax relief to businesses in response to COVID-19 and associated economic impacts. These measures range from tax waivers and deferrals, increases to the tax threshold, tax refunds and grants, and differ for each state or territory and depending on the size of the business payroll.
• COVID-19 Update: What you need to know about temporary changes to Australia’s Foreign Investment Framework - The Morrison Government has announced temporary changes to the foreign investment review framework by removing the existing thresholds for foreign investments in Australia which are subject to the Foreign Acquisitions and Takeovers Act 1975 (Act).
• COVID-19 Update: Temporary relief granted for capital raising - In recognition that many listed entities will need to raise capital urgently to sustain themselves during the COVID-19 crisis, the ASX has announced temporary capital raising relief, while ASIC has announced temporary relief to enable certain ‘low doc’ offers, such as rights offers, placements and share purchase plans, to be made to investors even if they do not meet all the normal requirements.
• COVID-19: Impact on residents’ rights to security of tenure in aged care homes - The States are moving to further protect vulnerable residents of aged care facilities by restricting the movement of those residents who put themselves at risk of contracting COVID-19.
• Crossing the boundaries: when can employers intervene in personal relationships in the workplace? - Workplace romances have recently been in the spotlight thanks to two highly publicised news stories.
• Crowd-Sourced Equity Funding Takes Off - Earlier this month, ASIC issued the first licences to crowd-sourced equity funding (CSF) intermediaries, enabling public unlisted companies to launch CSF campaigns via their platforms. Already, the first crowdfunds have begun to go live, with one raising $500,000 in less than a day. The next step is for CSF to be extended to private companies, which is expected to come into effect from the middle of this year.
• Crowd-Sourced Funding For Private Companies Finally Launches - Private companies can now access the Government’s equity crowd-funding reforms, after they were passed almost a year after being introduced.
• Crucial changes to the Sale of Land Act 1962 (Vic) are coming into effect on 1 March 2020. How can developers avoid some costly mistakes? - The final changes from the Sale of Land Amendment Act 2019 (Vic) (Amendment Act) come into effect on 1 March 2020.
• Dealing with bullying allegations against school principals - A recent Federal Court decision highlights the risks for school principals when disciplining staff who have made bullying complaints against them, and the importance of getting advice before commencing any disciplinary process.
• Dealing with commercial leases in the time of COVID-19 - In these turbulent and unpredictable times, the impacts and challenges that COVID-19 bring to daily life continue to evolve on a daily, and even hourly, basis. COVID-19 will continue to cause significant disruption and challenges to all persons, business and governments on a global scale.
• Dementia Fact Sheet - Dementia – a simple fact sheet.
• Developers and Owners Corporations: When can you break the rules? - The Victorian Civil and Administrative Tribunal affirms the decision in Balcombe. Owners corporations’ rule-making powers are very narrow and must not seek to punish lot owners.
• Did the aged care industry budget for the 2018-2019 Budget? - In the 2018-2019 Budget, aged care providers were informed that the government would be introducing a levy to fund the Accommodation Payment Security Scheme ("Scheme").
• Directors - Is Your Financial Literacy Good Enough? - Directors - Is Your Financial Literacy Good Enough?
• Director's liabilities and phoenix activity targeted - The 2018 budget update for company directors. On 8 May 2018, Treasurer Scott Morrison delivered the 2018 Budget, new measures to increase director liabilities and compliance were revealed, specifically targeting illegal company ‘phoenix activity’.
• Disclosure Requirements Update: Retirement Living - Retirement Living Operators should note that the Director of Consumer Affairs Victoria (CAV) has released the updated form of Factsheets which must be used from 1 March 2018.
• Discrimination and Criminal Records - The new Australian Human Rights Commission Regulations 2019 (Regulations) were recently enacted, arguably expanding the circumstances in which an employer can discriminate on the basis of a current or prospective employee’s criminal record under Commonwealth law.
• Discrimination v Safety: Determining an Employee’s Capacity for Work - Our 8 March 2017 seminar raised a number of hot topics about dealing with employee injuries, illnesses and absences that are not work-related. In this Alert we explore one of those topics in more detail.
• DLW Health Services decision - Federal Court says Aged Care ACFI documents are “riddled with ambiguous, uncertain and inconsistent language” - The Full Court of the Federal Court has made a number of comments about the poor quality of the ACFI documents in a decision handed down on 23 August concerning an appeal from the Administrative Appeals Tribunal.
• Doctors defamed – New actions available - Recent cases expand the basis on which doctors can sue where defamatory and untrue material is published against them.
• Double trouble: Federal Circuit Court recognises that entitlements for two separate jobs worked by an employee within the same organisation must be calculated independently - The Federal Circuit Court has rejected a claim for unpaid overtime, rest relief and meal entitlements by an employee who worked in two separate part-time positions at Australia Post.
• Drawing the line: when "workplace banter" is unacceptable conduct - A recent Fair Work Commission decision has likened racial slurs made by an employee to incidents of sexual harassment called out in the #MeToo movement, distinguishing between crude conduct and fundamentally unacceptable conduct.
• Elder abuse again thrust into spotlight - On 24 September 2019, the Victorian Civil and Administrative Tribunal (the Tribunal) handed down a 5 year disqualification to a nurse found to be “overly involved” in the affairs of a patient at a residential aged care facility where the nurse worked as a nurse unit manager.
• Enhancing the workplace or an intrusion of privacy? As surveillance technology continues to evolve, so too will the debate - Surveillance in the workplace is a topic which attracts controversy. Employers will argue that surveillance technology mitigates work health and safety risks and can optimise the workplace and productivity, for the ultimate benefit of employees.
• Equal Remuneration Decision - Our Employment team discuss equal remuneration.
• Expansion of the Disability Worker Exclusion Scheme – new employment screening obligations in effect - On 1 November 2017, the Victorian Disability Worker Exclusion Scheme was expanded to cover all disability services providers, including NDIS providers that are registered with the Department of Health and Human Services, with a 1 February 2018 deadline for completing all checks on existing disability workers.
• Expats have until 30 June 2020 to sell main residence - Legislation assented to on 12 December 2019 has radically amended the availability of the main residence exemption on capital gains tax (CGT) to foreign residents for tax purposes (expats).
• Fair Work Commission Approves 3.5% Increase to Minimum Wage - The Fair Work Commission has today released its annual wage review for the 2017-2018 financial year.
• Fair Work Commission confirms – right to a support person is not a right to an advocate - Share  Email  Print Employers are increasingly being frustrated by union representatives and lawyers seeking to speak on behalf of employees during meetings regarding disciplinary and dismissal processes. Last week the Fair Work Commission handed down a helpful decision confirming that there are limits on the role of support persons.
• Fair Work Commission decides municipal council is covered by anti-bullying jurisdiction - On 18 December 2018, the Fair Work Commission determined that the City of Port Phillip is a constitutional corporation, with the result that it is covered by the Commission’s anti-bullying jurisdiction.
• Fair Work Commission finds NDIS is not yet a reason to increase flexibility in the SCHDSI Award - In July 2017 the Fair Work Commission handed down a decision regarding part-time and casual employment as part of its review of modern awards.
• Fair Work Commission supports unpaid Family and Domestic Violence Leave - In March 2017, we published an alert about the Full Bench of the Fair Work Commission’s consideration of the Australian Council of Trade Unions’ application for paid family and domestic violence leave to be included in modern awards.
• Family Law Video Alert: Separation – Where to start? - If you are going through a separation or considering separating from your partner you are dealing with a range of both emotional and practical challenges at this difficult time.
• Family Law Video Alert: Separation – Who can help? - If you are going through a separation or considering separating from your partner you are dealing with a range of both emotional and practical challenges at this difficult time.
• Family Violence Leave: Providing organisational support to employees experiencing family violence - In recent years a national dialogue about family violence has taken place in Australia.
• Fingerprint Scanning - Beware! - The Full Bench of the Fair Work Commission’s decision in Jeremy Lee v Superior Wood Pty Ltd [2019] FWCFB 2946 highlights the increasing tension between technology and privacy in the workplace.
• Fire Safety in High Rise Buildings – Proposed Amendments to the National Construction Code - Significant changes are on the horizon for building standards relating to fire safety, with draft amendments to all building codes expected to be adopted in March 2018. Building owners and professionals will need to keep up with the planned changes.
• Foreign Investment still strong - FIRB releases 2017-18 Annual Report - On 18 February 2019, the Foreign Investment Review Board (FIRB) released its Annual Report for the year ending 30 June 2018, finding that foreign investment remains strong despite a decline in proposed investment from China as Chinese authorities tighten capital controls.
• Further changes to restraint rules in aged care: Clarity on the responsibilities of providers - Following the commencement of the new restraint rules (found in Part 4A of the Quality of Care Principles) in July 2019, aged care providers have been waiting for the outcome of the Standing Committee’s review of the rules.
• Get it right or pay the penalties – employers put on notice with changes to the Fair Work Act 2009 - In the aftermath of the 7-Eleven underpayments scandal, the Fair Work Act 2009 has been amended to better protect workers.
• Good Governance Principles and Guidance for Not-for-Profits update - In January 2019, the Australian Institute of Company Directors (AICD) published a revised and developed version of its Good Governance Principles and Guidance for Not-for-Profits (the Principles).
• Gorton IVF Review released by Minister - The report on the 12 month Review of IVF legislation in Victoria conducted by Russell Kennedy Principal, Michael Gorton, was recently released by the Victorian Health Minister, Jenny Mikakos.
• Government Compulsory Acquisition - It's Not Selling, It's Retrieving... - Government Compulsory Acquisition - It's Not Selling, It's Retrieving...
• Government’s proposed changes to Australian Citizenship Act 2007 defeated - On 18 October 2017, the Federal Government’s proposed changes to the Australian Citizenship Act 2007 were defeated in the Senate when the deadline to vote on the associated Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 expired and Labor, the Greens and the Nick Xenophon Team refused to support the changes.
• Greater Long Service Leave flexibility in Victoria by 1 November 2018 - The Long Service Leave Act 2018 (Vic) has now been passed by parliament, with the new Act set to come into effect by 1 November 2018.
• Guess who’s back: Federal Court reinstates employees pending the outcome of their general protections claim - In most general protections claims under the Fair Work Act 2009 (Cth), dismissed employees will seek reinstatement and/or compensation. Ordinarily, the Court will only order reinstatement if the employee is successful at the final hearing. However, a recent Federal Court decision (CFMEU v Anglo Coal (Capcoal Management) Pty Ltd [2016] FCA 1582) provides a rare example of an employee achieving reinstatement at the start when making a general protections claim.
• Has your land tax skyrocketed? How to object to your land tax assessment - Land tax is a state-based tax levied on the land value component of each property you own. This value is traditionally based on the site value determined by council valuers. To determine your land tax liability, the State Revenue Office (SRO) will consider the properties you own and whether any exemptions apply to you as at 31 December each year.
• Have you considered the implications of the PPSR on your leases? - An update from our Property and Development team.
• Health Bulletin (10 December 2018) - The latest insights from our Health Law team.
• Health Bulletin (12 April 2018) - The latest insights from our Health Law team.
• Health Bulletin (12 November 2018) - The latest insights from our Health Law team.
• Health Bulletin (12 October 2018) - The latest insights from our Health Law team.
• Health Bulletin (14 June 2018) - The latest insights from our Health Law team.
• Health Bulletin (15 April 2019) - The latest insights from our Health Law team.
• Health Bulletin (17 August 2018) - The latest insights from our Health Law team.
• Health Bulletin (18 December 2018) - The latest insights from our Health Law team.
• Health Bulletin (2 April 2019) - The latest insights from our Health Law team.
• Health Bulletin (20 February 2019) - The latest insights from our Health Law team.
• Health Bulletin (20 March 2018) - The latest insights from our Health Law team.
• Health Bulletin (23 May 2018) - The latest insights from our Health Law team.
• Health Bulletin (25 June 2018) - The latest insights from our Health Law team.
• Health Bulletin (25 March 2019) - The latest insights from our Health Law team.
• Health Bulletin (26 July 2018) - The latest insights from our Health Law team
• Health Bulletin (26 November 2018) - The latest insights from our Health Law team.
• Health Bulletin (30 August 2018) - The latest insights from our Health Law team.
• Health Bulletin (30 October 2018) - The latest insights from our Health Law team.
• Health Bulletin (31 May 2018) - The latest insights from our Health Law team.
• Health Bulletin (5 April 2018) - The latest insights from our Health Law team.
• Health Bulletin (5 July 2018) - The latest insights from our Health Law team.
• Health Bulletin (5 March 2018) - The latest insights from our Health Law team.
• Health Bulletin (7 August 2018) - The latest insights from our Health Law team.
• Health Bulletin (8 May 2018) - The latest insights from our Health Law team.
• Health Bulletin 11 September 2019 - The latest insights from our Health Law team.
• Health Bulletin 13 December 2019 - The latest insights from our Health Law team.
• Health Bulletin 13 March 2020 - The latest insights from our Health Law team.
• Health Bulletin 13 May 2019 - The latest insights from our Health Law team.
• Health Bulletin 14 June 2019 - The latest insights from our Health Law team.
• Health Bulletin 14 November 2019 - The latest insights from our Health Law team.
• Health Bulletin 18 October 2019 - The latest insights from our Health Law team.
• Health Bulletin 2 May 2019 - The latest insights from our Health Law team.
• Health Bulletin 22 August 2019 - The latest insights from our Health Law team.
• Health Bulletin 24 September 2019 - The latest insights from our Health Law team.
• Health Bulletin 25 February 2020 - The latest insights from our Health Law team.
• Health Bulletin 25 July 2019 - The latest insights from our Health Law team.
• Health Bulletin 27 June 2019 - The latest insights from our Health Law team.
• Health Bulletin 28 May 2019 - The latest insights from our Health Law team.
• Health Bulletin 28 November 2019 - The latest insights from our Health Law team.
• Health Bulletin 3 October 2019 - The latest insights from our Health Law team.
• Health Bulletin 30 October 2019 - The latest insights from our Health Law team.
• Health Bulletin 7 August 2019 - The latest insights from our Health Law team.
• Health Bulletin 9 July 2019 - The latest insights from our Health Law team.
• Health Bulletin (11 February 2019) - The latest insights from our Health Law team.
• Health Bulletin (12 March 2019) - The latest insights from our Health Law team.
• Health sector most vulnerable to data breaches - In July 2018, the Office of the Australian Information Commissioner (OAIC) released a report summarising about notifications received under the notifiable data breaches (NDB) scheme between 1 April-30 June 2018.
• High Court surprises in Commonwealth Bank v Barker - No implied mutual trust and confidence term in employment contracts.
• How a smoko before work led to a broken leg (and workers’ compensation) - A Queensland Court has held that a worker directed to arrive at work 10 minutes prior to her start time was covered by the WorkCover system during that period – despite the fact that she was not performing any duties.
• How does the Reform of the Marriage Act Benefit me? - How does the Reform of the Marriage Act Benefit me?
• How is Revenue NSW regulating discretionary trusts with “foreign person” beneficiaries? - Given that we are living in an increasingly smaller globalised world, concepts of citizenship, domicile and nationality are more fluid concepts as people freely relocate.
• How to get the most out of your Family Law Representation - Family Law Representation can be complicated enough without back and forth communication with your lawyer. You are entitled to high standards of legal advice and your solicitor must act in accordance with a range of legal duties to achieve the best possible outcome for your case. At the same time, a successful solicitor/client relationship requires cooperation on both sides.
• How to sell or merge your legal practice: a step-by-step guide - If you are thinking of selling or merging your legal practice, Rohan Harris Principal at Russell Kennedy Lawyers, has created a step by step guide to getting your legal practice ready.
• How will the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability affect independent schools? - On Friday 5 April 2019, the Prime Minister formally announced the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Royal Commission).
• Identity cards for authorised persons under the Building Act - Sections 228 and 228A of the Building Act 1993 (Building Act) operate to allow a municipal building surveyor (MBS) to authorise a person to exercise any or all of the powers of the MBS under Division 2 of Part 13 of the Building Act. Where a person has been so authorised by the MBS, the MBS must issue identification to that person.
• Importance of a properly signed resident agreement - Importance of a properly signed resident agreement
• In a rare injunction application, Court sends suspended employee back to work - A suspended Professor has been allowed to return to work, after claiming her University employer failed to comply with its enterprise agreement when standing her down with pay while investigating allegations of misconduct.
• In August the Full Bench of the Federal Court handed down a decision regarding the meaning of a ‘day’ for the purpose of personal/carer’s leave under the Fair Work Act 2009 - This decision is of particular significance to workplaces where employees work varying hours from day to day as part of a roster.
• Increased flexibility in Clerks Award in response to COVID-19 - The Fair Work Commission has varied the Clerks – Private Sector Award 2010 to allow greater flexibility to businesses to manage their workforce and preserve jobs throughout the COVID-19 pandemic. The amendments are in response to an urgent application by the Australian Chamber of Commerce and Industry, Ai Group, the Australian Council of Trade Unions and Australian Services Union.
• Industrial Manslaughter - substantial new penalties for work related deaths - The Victorian Government has introduced new, substantial penalties for work related deaths. The Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 (Amendment) will amend the Occupational Health and Safety Act 2004 (Vic) and is likely to take effect from July 2020.
• Insight on Insight – Binding Financial Agreements - If you tuned into the Insight program on Binding Financial Agreements that aired last week you might be left with the same lingering questions and concerns that I have.
• Insolvency In The Construction Industry – Are You Covered? - Insolvency in the construction industry is a perennial concern for contractors who can be thinly capitalised and depend on reliable cash flow to meet obligations to staff and suppliers.
• Intellectual Property - Protecting your brand - Stephanie Quatela, associate in the Corporate and Commercial team at Russell Kennedy Lawyers, provides and update on brand protection and intellectual property law.
• Ipso Facto Reforms - Are your contracts affected? - Ipso Facto Reforms - Are your contracts affected?
• Is “buyer beware” still relevant? Crucial changes to the Sale of Land Act 1962 (Vic) Update: New Regulations and Material Fact Guidelines - We recently published an article on a series of changes to the Sale of Land Act 1962 (Vic) which came into effect on 1 March 2020.
• Is bird’s nest parenting the answer for divorcing parents? - Bird’s nest parenting is one option for parenting during separation and divorce. This concept gives children figurative custody of the family home. Rather than the children going from one parent’s home to another, the children stay put in the family home. The parents on the other hand each move into their own residence and split their time between that residence and the family home. In some families, the parents share the second home and move in and out of the family home due to economic concerns.
• Is there a right to be afforded procedural fairness in a compulsory acquisition? - Russell Kennedy acted on behalf of Melbourne Water and Yarra Valley Water (Authorities) in respect of the compulsory acquisition of land and easements in Beveridge, Victoria.
• Just how far can owners corporation rules go? The rule making powers of an owners corporation - The Owners Corporations Amendment (Short-stay Accommodation) Act 2018 (Vic) (Act) came into effect on 1 February 2019. The Act provides owners corporations with more discretion to self-regulate short-stay accommodation in their buildings and to better address the concerns of lot owners affected by any unruly short-stay occupants who enter into short stay accommodation arrangements of up to 6 nights.
• Just in - Aged Care COVID-19 Visitation Restrictions – Federal Government Announcement - Just in - Aged Care COVID-19 Visitation Restrictions – Federal Government Announcement. ‘Whatever we do, we’ve got to do for at least 6 months. 6 months.’
• Keypads in aged care homes and the rules on restraints: FAQs - Since the commencement of the new restraint provisions in July last year, there has been an increased focus on the issue of restraints. A particularly vexing issue for the industry is what to do about keypads on the entrances and exits to/from aged care facilities, or areas within them (eg. secure dementia units). With most of the industry using coded keypads to enter and exit, we are receiving a number of questions on this issue.
• Labour hire licensing scheme update - From 30 October 2019, heavy penalties will apply to labour hire providers who operate without a licence and to businesses that use unlicensed labour hire providers in Victoria.
• Landlords beware - essential safety measures are your responsibility - Landlords and tenants should review the repair and maintenance provisions and outgoings provisions of leases in light of a very significant advisory opinion given by the President of the Victorian Civil and Administrative Tribunal, Justice Garde, on Friday, 1 May 2015.
• Large businesses with consolidated revenue of over $100m must consider Modern Slavery risks - The Modern Slavery Bill 2018 (Cth) (the Bill), which is currently before the Senate and is expected to become law, introduces new obligations for large businesses operating in or from Australia with a consolidated revenue of over $100 million AUD to provide annual reports on the actions they have taken to address the risks of modern slavery in their operations and supply chains.
• Law reform for charities and not-for-profit organisations - Over the last six months a number of proposals have been considered by the Australian Government, and a number of announcements have been made in relation to their policy directions.
• Leasing market reviews - Trips, traps and tips. In most long term leases a mechanism is inserted to increase the rent over time, ostensibly to combat increases in the cost of owning the Premises.
• Legal Practice Management – Is it time to sell or merge? - Rohan Harris has contributed a practice management column for the Law Institute Journal (LIJ) June edition.
• Local Government Act 2020 – a generational reform? - This Alert provides an overview of the general intent of the new legislation and how it will be implemented. Further Alters will follow on the key parts of the legislation.
• Long Service Benefits Portability Scheme – new regulations published - The Long Service Benefits Portability Regulations 2019 have been published, just in time for commencement of the Long Service Portability Scheme on Monday, 1 July 2019.
• Long Service Benefits Portability Scheme - What community service employers need to know - The Long Service Benefits Portability Bill 2018, if it is passed, will have significant implications for the long service entitlements of Victorian employees in a range of industries, including community services.
• Long service leave amendments in Victoria to target flexibility - The Victorian Government has introduced a Bill to amend the Long Service Leave Act 1992 (Vic), improving flexibility for employees and addressing some of the Act’s historical quirks.
• Look out for GST errors in land contracts - Property developers should pay careful attention to the treatment of GST in contracts for the sale of land. Recently, two developers in dispute incurred significant costs and delays simply over missing the word “Plus” in a contract of sale.
• Major restructurings in the agriculture industry - In late 2017, the agribusiness sector was uncertain as to the likely impact(s) that the three agribusiness mega mergers undergoing review at that time (ChemChina-Syngenta, Bayer-Monsanto and Dow-DuPont) would have.
• Managing reputation and online reviews in an era of fake news, keyboard warriors and troll farms - Consumer reviews are big business. We are operating in a world where a lone keyboard warrior can reach a global audience, warehouses of people (usually in other countries) known as ‘troll farms’ can mass generate fake content, and consumer activism is on the increase.
• Marsh v Baxter - The High Court has dismissed Stephen and Susan Marsh’s application for leave to appeal a decision from The Court of Appeal (WA). Three important issues/outcomes have emerged from this case.
• Medical certificates – when can an employer question them? - Our Employment team review medical certificates and when an employer can question them.
• Medical colleges unite to defend Medevac legislation - In the face of a potential repeal of Medevac legislation through the Migration Amendment (Repairing Medical Transfers) Bill 2019, eleven of Australia’s peak medical bodies have united to call for the Medevac legislation and Independent Health Advice Panel to be maintained by the federal parliament.
• More than six months of the Medical Treatment Planning and Decisions Act 2016 (Vic) – what issues are aged care providers seeing? - It has been over six months since the Medical Treatment Planning and Decisions Act 2016 (Vic) (Act) commenced. With the Royal Commission into Aged Care set to consider end of life care, it’s more important than ever that aged care providers ensure their policies are up to date and compliant with the changes.
• My Health Record Opt-Out Dates Announced by the Australian Government - Australians who do not want their medical records stored on a national electronic database can opt-out of the scheme from July 16 to October 15 this year.
• My parents want to help me get a foot in the door in the property market… - Did you know – in 1994 the average median house price in Sydney was $192, 375?
• National Health Practitioner Regulation Scheme must prioritise protection of the public - The National Regulatory Scheme for health practitioners, under which complaints may be made against health practitioners, has been in place for almost 10 years. One of the principles of the scheme was that AHPRA (the Regulator) and National Boards for each of the 15 regulated health professions, undertake their work on the basis that they will apply restrictions or impose sanctions only to the extent necessary to ensure safe health practice and quality services.
• NDIS Service Agreement: Not worth the paper they're written on? - Russell Kennedy has become aware that some NDIS providers believe they are not required to enter into written Service Agreements with participants and are commencing supports without a written agreement.
• New Australian Consumer Law (ACL) laws released for comment - Direct selling businesses need to have a working knowledge and good risk management in place for ACL compliance.
• New Laws for Data Breach Reporting - Our checklist to help you prepare - As we previously wrote, on and from 22 February 2018, organisations regulated by the Privacy Act 1988 will be required to notify any individuals likely to be at risk of “serious harm” as a result of a data breach, together with the Privacy Commissioner.
• New mandatory wording for Notices of Employee Representational Rights: Get the wording right, or start again - Employers must provide employees who will be covered by a proposed enterprise agreement with a Notice of Employee Representational Rights when commencing the enterprise bargaining process. Notices must be in the precise form set out in the Fair Work Regulations 2009 (Cth).
• New Model Contract Clauses for Recycling Industry – Implications for Local Government - Recycling Industry Support for Councils – Guidance Notes and Model Contract Clauses
• New modern awards for local government in Victoria - New modern awards for local government in Victoria
• New Obligation for Hospitals - Consultation Paper - The Victorian Government is considering legislative reforms arising from the Duckett Review. One of the recommendations was the introduction of a Statutory Duty of Candour for Victoria.
• New Owners Corporations Regulations 2018 - Change is on the horizon - The existing Owners Corporations Regulations 2007 (Vic) will be replaced by the Owners Corporations Regulations 2018 (Vic) (“2018 Regulations”) with effect from 2 December 2018. Owners Corporation managers and operators of strata titled retirement villages need to be aware of the key changes. More particularly:
• New report into aged care a sign of things to come - The regulation of aged care in Australia is set to undergo a major review, as the Royal Commission into Aged Care looks at how to evolve towards a safer, more consumer-driven system that delivers high quality outcomes.
• New reporting for charities - Charities must report advocacy/political expenditure to the Australian Electoral Commission. Read about the new thresholds and deadlines below.
• New Residential Property Sales – GST Withholding Regime - As we have previously highlighted, in the 2017 budget, the Federal government introduced a new regime to require home buyers of new properties to withhold 1/11th of the sale price and to remit it to the ATO as the developer’s GST.
• New retirement village regulations commenced over the weekend in Victoria - The Retirement Villages (Records and Notices) Regulations 2015 (Victoria) (“2015 Regulations”) commenced on Saturday 12 December 2015.
• New Retirement Villages Regulations released in South Australia - The Retirement Villages Act 2016 (SA) was introduced in November 2016 as the first part of the reform of retirement village laws in South Australia. The final piece of that reform, the Retirement Villages Regulations 2017, were released on 8 August 2017. The new Regulations and the new Act will commence from 1 January 2018.
• New Victorian Medical Treatment Laws - Health practitioners, hospitals, aged care and other health facilities will be affected by new medical treatment laws.
• New Whistleblower laws commence on 1 July 2019 - The long awaited reforms to Australian whistleblower laws commence on 1 July 2019. The new legislation will apply to all ‘companies’ (including any Not-For-Profits set up as a company, i.e. registered as public companies limited by guarantee). In addition, all ‘public’ and ‘large proprietary’ companies must have a complying whistleblower policy in place from 1 January 2020.
• Now is the time to review your discretionary trusts - Practical approach no more! Changes are afoot in relation to the Victorian State Revenue Office’s (“SRO”) treatment of discretionary trusts.
• NSW Retirement Villages – Proposed reforms to exit entitlement timeframe and recurrent charges cap - The NSW Government has released its discussion paper on proposed reforms to exit entitlements and a cap on recurrent charges in line with its election commitment to do so.
• Number of notified data breaches holds steady in September 2018 - We recently highlighted that the health sector appeared to be the most vulnerable to data breaches. On 30 October 2018, the Office of the Australian Information Commissioner (OAIC) released statistics on data breaches notified to the OAIC during the September quarter.
• Offensive odour and annual performance statements - This Alert is relevant to licence holders declaring Annual Performance Statements.
• Outsourcing and Local Government: Fair Work Commission decision may open up new options - Last week, the Fair Work Commission ordered that a council’s enterprise agreement would not apply to former council employees who changed jobs due to an outsourcing arrangement.
• Owners Corporations must make reasonable adjustments for persons with a disability – but who should pay? - The Supreme Court of Victoria has found that Owners Corporations provide ‘services’ to Owners and Occupiers within the meaning of the Equal Opportunity Act 2010. This means they cannot discriminate in the provision of these services, and must make reasonable adjustments for persons with a disability.
• Parliament set to follow Fair Work Commission’s casual conversion lead - The Federal Government is proposing to amend the Fair Work Act 2009 to ensure that all casual employees have a right to request to convert to full-time or part-time employment.
• Penalty shootout: Fair Work Commission decides to change penalty rates - Yesterday the Fair Work Commission handed down a decision to reduce Sunday, public holiday and late night/early morning penalty rates in various modern awards. Some of these changes will be effective from late March this year.
• Planning Enforcement: Owners of land fined for tree being poisoned on their land - Russell Kennedy Lawyers were recently engaged by Monash City Council to prosecute a breach of the Monash Planning Scheme (Planning Scheme). The breach of the Planning Scheme was on the basis that land in Glen Waverley (Land) was developed by way of poisoning a tree.
• Police checks to be removed for IVF patients - The Victorian Government has introduced legislation into Parliament to remove the requirement for police checks and child protection order checks to be deleted as a pre-requisite for Victorians to undertaken IVF procedures.
• Poor performance or misconduct? An important distinction - When will an employee’s poor performance constitute misconduct? The Fair Work Commission has considered this question in the recent unfair dismissal decision of Steven Zirilli v StarTrack Express Pty Limited [2019] FWC 3557.
• Property Alert – Recent amendments to conveyancing legislation (Conveyancing Act) in NSW - The Conveyancing Legislation Amendment Act 2018 (NSW), assented to on 22 November 2018, introduces a number of changes to the Conveyancing Act 1919 (NSW) (Conveyancing Act) and the Real Property Act 1900 (NSW) that will affect property transactions in NSW.
• Protecting small business from unfair contracts – ACCC issues first proceeding under the new unfair contracts regime - The ACCC has commenced its first Federal Court case under the November 2016 Australian Consumer Law unfair contracts provisions relating to small businesses.
• Purchasing Property for Others - You may fall foul of the foreign investment framework - Purchasing Property for Others - You may fall foul of the foreign investment framework
• Recent amendments to conveyancing legislation in NSW - The Conveyancing Legislation Amendment Act 2018 (NSW), assented to on 22 November 2018, introduces a number of changes to the Conveyancing Act 1919 (NSW) (Conveyancing Act) and the Real Property Act 1900 (NSW) that will affect property transactions in NSW.
• Recent amendments to the Child Support (Assessment) Act are retrospective - On 1 July 2018, amendments to the Child Support (Assessment) Act 1989 were made via the enactment of the Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018. Among those were a series of changes affecting Binding Child Support Agreements.
• Redundancy consultation processes: how much and when? - Two recent decisions highlight the importance of complying with redundancy consultation requirements.
• Reform of Victoria's Environment Legislation - Planning & Environment Alert - Reform of Victoria's Environment Legislation
• Reform of Victoria's Subordinate Environment Legislation - Planning & Environment Alert - Reform of Victoria's Subordinate Environment Legislation
• Renewable Energy Targets for Victoria Enshrined into Law - Victoria is the first State to enshrine its renewable energy targets into legislation, and the passing of the Renewable Energy (Jobs and Investment) Act 2017 (Vic) will provide greater investment certainty for the renewable energy industry in Victoria.
• Responding to an unprecedented pandemic: unprecedented restraints? - The Commonwealth and State governments are taking unprecedented actions to protect the public from the spread of COVID-19, and the potential side effects of an overwhelmed health service if the virus is allowed to spread unchecked.
• Responding to the Royal Commission’s Invitation: top tips - The first round of responses to the Royal Commission into Aged Care Quality and Safety were submitted on 7 January 2019.
• Retail Leases: Richmond Football Club take out the win, this time in the Supreme Court - The outcome: If the Retail Leases Act applies to a lease at its commencement, it will continue to apply to the lease throughout its term
• Retirement living and the COVID-19 pandemic: 10 legal tips for retirement living operators - Following the World Health Organisation’s declaration that COVID-19 is a global pandemic, the Australian Governor General has this week made a declaration under the Biosecurity Act 2015 (Cth) that a human biosecurity emergency exists in Australia. Unfortunately, COVID-19 cases in Australia continue to rise and this will present significant ongoing challenges to the retirement living industry for months to come.
• Retirement Village Operators - CAV Inspections and Complaints/Disputes Process - Retirement Village operators should note that Consumer Affairs Victoria (“CAV”) has changed its internal process in relation to assisting and dealing with complaints made by residents about management and resident disputes.
• Review of the Retirement Villages Act 1986 - The Minister for Consumer Affairs has recently published an Issues Paper on the review of the entire Retirement Villages Act 1986. The Paper marks the beginning of the Victorian Government’s public consultation process.
• Risks associated with fixed-term employment contracts - A recent decision of the Fair Work Commission highlights the risks in misusing fixed-term employment contracts.
• Roster Flexibility: Fitting Your Employees into New Care Models - As employers look for ways to implement more fluid work arrangements to respond to consumer demand, the Full Bench of the Fair Work Commission has handed down a decision which may assist employers of part-time employees. In Bupa Care Services Pty Limited v New South Wales Nurses and Midwives' Association [2017] FWCFB 1093 the Full Bench held that Bupa could change part-time employees’ rosters without their agreement, provided there were no changes to the employees’ minimum guaranteed hours. The issue The part-time employment and rostering clauses in Bupa’s enterprise agreement, which are almost identical to clauses in the Nurses Award 2010, provide that: 1.prior to commencement, an agreement must be reached with a part-time employee about the guaranteed minimum number of hours to be worked and the rostering arrangements which will apply to those hours; 2.the terms of a part-time employee’s agreement can be varied by agreement and recorded in writing; and 3.Bupa can change rosters by giving seven days’ notice to affected employees. Bupa decided to implement a new care model which resulted in changes to its roster. After a consultation process, it wrote to employees informing them of the new roster, providing requisite notice of the change. The NSWNMA took issue with this, arguing that employees had to agree to a change to their roster and Bupa could not change it unilaterally. The decision The Full Bench considered the words of the enterprise agreement, as well as other written contracts in place between Bupa and its employees. It held that the enterprise agreement did not require an employee’s agreement to implement changes to the employee’s rostered hours. Importantly, the written contracts in place between Bupa and its part-time employees contained wording making it clear that Bupa guaranteed minimum hours for part-time employees, but that the roster was subject to change by management. The Full Bench also held that displaying a ros
• Royal Commission into Aged Care Quality and Safety - Four Corners - The Governor-General has today released the Terms of Reference for the Royal Commission into Aged Care Quality and Safety. We encourage providers to become familiar with the scope of the Commissioners’ inquiry.
• Royal Commission into Aged Care Quality and Safety - Terms of Reference explained - In anticipation of the Commissioners releasing a scoping document which defines more precisely the areas the Commission will cover, Russell Kennedy has reviewed the Terms of Reference. We have analysed each Term to assist providers understand from a high level, what the Commission is likely to enquire into.
• Royal Commission into Aged Care Quality and Safety - Terms of Reference released - The Governor-General has today released the Terms of Reference for the Royal Commission into Aged Care Quality and Safety. We encourage providers to become familiar with the scope of the Commissioners’ inquiry.
• Royal Commission into Quality and Safety in Aged Care - As providers work through their data and documents for the Provider Survey, the Royal Commission’s office is engaging with select consumers and interviewing stakeholders across Australia to inform itself of the perceptions and experiences of the community.
• Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability - Prime Minister Scott Morrison announced the establishment of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability on 5 April 2019.
• Russell Kennedy has designed a suite of webinars for disability service workers to better understand how to create reliable records - Principal Emma Turner and Associate Riaza Rigby were engaged by the National Disability Services (NDS) to create a series of six webinars promoting reliable record keeping practices.
• Safe Harbour - Protection from Liability for Insolvent Trading - Earlier this year we reported on the reforms to the Corporations Act 2001 (Cth) known as safe harbour, which provides directors with protection from liability for insolvent trading, in circumstances where they have started developing a course of action that is reasonably likely to lead to a better outcome for the company than the appointment of a voluntary administrator or liquidator.
• Safe harbour to extend the two year period to dispose of dwellings from a deceased estate - Where a dwelling was used as the deceased’s main residence (but not for producing income) just before they died and disposed of within 2 years from the deceased’s date of death, any capital gains and capital losses triggered by the disposal are disregarded.
• Separating from your partner? You need to update your estate planning documents now - Relationship breakdown and the subsequent stress over division of property and/or parenting arrangements often leaves reviewing and updating your Will, Power of Attorney and Appointment of Enduring Guardianship in the “I’ll deal with that later…” basket.
• Sexual harassment – is your Councillor Code of Conduct up to the task? - The ongoing process arising from the allegations against Melbourne Lord Mayor Robert Doyle has highlighted the fact that many Councillor Codes of Conduct do not deal directly with sexual harassment. This gap can make it difficult for a councillor to make a complaint regarding another councillor, and equally for a Council to deal with sexual harassment allegations when they arise.
• Sexual Harassment in 2019 - In March, Libby Pallot and Abbey Burns presented on sexual harassment in the workplace.
• Sham contracting in the home care industry - The Federal Circuit Court recently issued penalties of $216,000 against two labour hire companies and two of their senior employees for sham contracting and the consequential underpayment of personal care workers.
• Shareholders Agreement - Your Legal Relationship Document - Shareholders Agreement - Your Legal Relationship Document
• Significant increase to financial penalties under the Australian Consumer Law - The maximum financial penalties that can be imposed for breaches of the Australian Consumer Law have been considerably increased.
• Small claim win illustrates the big impact of changes to ACL - A VCAT small claims decision on 9 August 2017 demonstrates the Tribunal’s readiness to apply the unfair contract provisions in the Australian Consumer Law (ACL) to standard form contracts entered into by small businesses.
• Stop right now – investigation put on hold - Some employees use various tactics to resist ‘facing the music’ when they are required to participate in a disciplinary process. A recent decision by the Fair Work Commission creates a precedent for another avenue for delay.
• Storage of Combustible Recyclables and Waste - This alert is relevant to the Waste Industry, Councils and Water Corporations.
• Strategic Planning – Minister for Planning directs that Environment Protection Authority to be consulted where significant impact on environment, amenity and human health - On 10 October 2018 the Minister for Planning directed planning authorities to engage the Environment Protection Authority (“EPA”) during the preparation of an amendment or in reviewing a scheme, and to obtain the EPA’s written views. The Minister’s direction codifies sound strategic planning practice and prioritises allocation of resources to ensure the EPA’s contribution is taken into account.
• Subpoenaed Medical Records - What should Practitioners do? - Medical practitioners are often requested to release their patients’ medical records to courts under subpoenas. However some medical organisations have concerns that some subpoenas issued for improper purposes have the potential to stigmatise vulnerable people and damage patient–practitioner relationships.
• Supreme Court of Victoria provides guidance with regard to the interpretation of Regulation 414 of the Building Regulations - Anderson v Building Appeals Board [2017] VSC 415 (21 July 2017) Background The plaintiffs filed two appeals with the Building Appeals Board (“Board”) against Stonnington City Council’s refusal to give its consent to requests for report and consent in respect of Regulation 414 of the Building Regulations 2006 (“Regulations”) to proposed alterations and additions to a dwelling.
• Surgeons: Link between unprofessional conduct and patient outcomes - A recent study links professional conduct/workplace culture with quality and safety for patients, and has indicated that the patients of surgeons who have been reported by colleagues for unprofessional conduct are at a significantly increased risk of post-operative complications. The study, published in JAMA Surgery medical journal in June 2019 compared the data of 13,653 patient outcomes with the number of complaints received about their surgeon over the three years prior to the surgery. The data was collected at two geographically diverse study sites that participated in the National Surgical Quality Improvement Program (NSQIP).
• Take Note – Capital Gains Tax Changes re: Main Residence - Buying a home to live in is part of the Australian dream and has historically been supported by the government by allowing any principal place of residence held by an Australian to be capital gains tax (CGT) free. That allowance historically continued for a period of up to six years from the date the property is no longer a person’s principal place of residence, provided the person did not claim another property as their principal place of residence.
• The eight step plan to better health privacy - The health sector is particularly vulnerable to notifiable data breaches since reporting under the scheme became mandatory in February 2018.
• The legal framework helping to control and prevent the spread of COVID-19 in Australia - The spread of the novel coronavirus disease (COVID-19) to Australia is seeing unprecedented restrictions being put in place across Australia to attempt to prevent and control the spread of the virus.
• The new Medical Treatment Act - what do Victorian aged care providers need to know? - On 2 February 2018 Russell Kennedy published an article on the introduction of the Medical Treatment Planning and Decisions Act 2016 (Vic) (“Act”) which commences on 12 March 2018.
• The new Retirement Villages Regulations commence on 30 July 2017 - From 30 July 2017, the Retirement Villages (Contractual Arrangements) Regulations 2017 (Vic) (“New Regulations”) will take effect. The New Regulations will repeal and replace the Retirement Villages (Contractual Arrangements) Regulations 2006 (Vic) (“Old Regulations”).
• The new Retirement Villages Regulations commenced on 30 July 2017 - From 30 July 2017, the Retirement Villages (Contractual Arrangements) Regulations 2017 (Vic) (“New Regulations”) have taken effect. The New Regulations repeal and replace the Retirement Villages (Contractual Arrangements) Regulations 2006 (Vic) (“Old Regulations”).
• The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability – Top five FAQs providers are asking us - Our team has extensive experience acting for clients in Royal Commissions. We have presented at a number of disability sector events recently about the Royal Commission and in this alert we address the top five questions disability service providers have been asking.
• The Supreme Court of Victoria breathes new life into the statutory cap to compensation for financial loss - New law in relation to claims for financial loss as a consequence of a reservation of land under section 98 of the Planning and Environment Act 1987 - The Supreme Court of Victoria departs from Gobbo J’s judgment in Mario Piraino.
• The top 10 common mistakes to avoid when selling or merging your legal practice - Share  Email  Print Many of my clients have achieved great satisfaction in building profitable practices from humble beginnings, often dealing with challenging circumstances along the way.
• The top 10 frequently asked questions about divorce part 1 - The top 10 frequently asked questions about divorce
• Thinking about getting your affairs sorted? - As we can all appreciate, the Government and World Health Organisation’s advice and instruction around containing the spread of COVID-19 changes on a daily basis.
• Thinking of building or renovating? Beware the builder… - Thinking of building or renovating? Most complaints received by the Office of Fair Trading relate to residential building work. In our experience, the majority of the complaints relate to poor workmanship, substandard materials and unfinished work.
• Three strikes and you're out! Implications of the new short-stay accommodation provisions - The Owners Corporations Amendment (Short-stay Accommodation) Act 2018 (Vic) (Act) came into effect on 1 February 2019. The Act provides owners corporations with more discretion to self-regulate short-stay accommodation in their buildings and to better address the concerns of lot owners affected by any unruly short-stay occupants who enter into short stay accommodation arrangements of up to 6 nights.
• Three top tips for drafting Local Government policies - Getting a policy document right is crucial. Policy purpose, objectives and content are obviously paramount, but good policy drafting is difficult and getting it wrong can have unexpected and troublesome consequences.
• Till death do us part - Estate Planning for Same-sex Marriage - The recent legalisation of same-sex marriage in Australia is certainly a cause for celebration, as are the weddings now following.
• Time to update your aged care client agreements (residential, home care, STRC and CHSP) and supplier agreements - With the 1 July 2019 deadline fast approaching, the team at Russell Kennedy has been busy updating our home care, residential care, CHSP, STRC and brokered services/contractor agreements to reflect the new Quality Standards, Charter of Rights and Pricing Schedule requirements.
• Top 10 frequently asked questions about Divorce - Part 2 - Top 10 frequently asked questions about Divorce - Part 2
• Trademarks and Parallel Imports - On 24 August 2018, the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Act 2018 (Act) received Royal Assent. This Act represents a shift in policy for dealing with trade marked goods and parallel imports. Trade mark owners are no longer able to block parallel importation of their products by assigning the mark to a local distributor.
• Unexpected Trap when Borrowing from an Overseas Lender for Second Hand Property - Be Wary if you are borrowing from an overseas lender to purchase an investment property which is not in the usual business of lending money.
• Unfit for work, but making money elsewhere - The NSW Industrial Relations Commission has upheld the dismissal of a support worker who lied about both her capacity for work, and her employment with another organisation, to support her workers’ compensation claim.
• Unpaid Family and Domestic Violence Leave for more employees - The Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018 (Cth) was passed on 6 December 2018, and received Royal Assent on Tuesday 11 December 2018.
• Update: Long Service Benefits Portability Scheme Passes Parliament - On 4 September 2018, the Long Service Benefits Portability Bill 2018 (Bill) was debated in the Legislative Council Committee and approved by an absolute majority. The intention of the Bill is to create a scheme which enables employees’ long service leave to accrue despite a change in employment within the same sector.
• Update: SCHADS Award changes; Mondelez Appeal; Victorian Portable Long Service Leave Scheme - Update: SCHADS Award changes; Mondelez Appeal; Victorian Portable Long Service Leave Scheme
• Vacant Residential Land Tax - Deadline Looming - As most property owners in Victoria are now aware, the new Victorian Vacant Residential Land Tax (“VRLT”) came into effect from 1 January 2018. All owners of property in Victoria who are liable to pay the VRLT must notify the State Revenue Office of the details of their properties by no later than 15 January 2018. Failure to do so may result in penalties being imposed on the property owner.
• Victoria on Target - Renewable Energy Update - On 11 September 2018, the State government announced the successful renewable energy project bidders from the Victorian Renewable Energy Auction Scheme (VREAS).
• Victorian Government proposes amendment to IVF laws - The Victorian Government has introduced changes to IVF legislation to provide that a married woman in Victoria need not obtain the consent of her spouse to undergo IVF treatment, if using donor sperm, in circumstances where the woman and husband are separated.
• Victorian Landfill Registry - This Alert is important to all entities responsible for (owner, occupier, committee of management) land impacted by a closed landfill, including municipal councils, State Government, water corporations and Commonwealth Government.
• Video Alert: Voluntary Assisted Dying Update - November 2019 - In June 2019, Victoria became the first state to legalise Voluntary Assisted Dying (VAD). Health services and their staff will inevitably be involved in providing care to patients who wish to access the scheme.
• Voluntary assisted dying – considerations for Victorian aged care providers - The Voluntary Assisted Dying Act 2017 (Vic) (Act) commences in Victoria on 19 June 2019. The Act will allow Victorians at the end of life who are suffering and who meet strict eligibility criteria to request access to voluntary assisted dying (VAD).
• Voluntary Assisted Dying update – Regulations introduced setting out some of the specifics - The Voluntary Assisted Dying Regulations 2018 (the Regulations) have now been finalised under the authority of the Voluntary Assisted Dying Act 2017 (the Act) and will commence on 19 June 2019.
• Voluntary Assisted Dying: What do Retirement Village Operators need to know? - The media recently reported that the first person in Victoria has passed away using the voluntary assisted dying (VAD) scheme that came into effect on 19 June 2019. Other states are also looking at introducing similar laws, so the issue is likely to stay on the agenda for some time.
• Warm winter comfort for landlords - Failing to maintain an air-conditioner won’t cost the landlord its lease.
• Warning - ATO and Airbnb Sharing Data - Be Aware of the Implications - Warning - ATO and Airbnb Sharing Data - Be Aware of the Implications
• We all understand “misleading and deceptive conduct”, right? Australian Consumer Law issues for American direct selling companies - A number of DSA Member companies are multinational corporations and, of those, a significant number have head offices in the United States of America.
• Western Australia passes voluntary assisted dying laws: Comparing the Victorian and Western Australian schemes - Western Australia (WA) has become the second state in Australia to legalise voluntary assisted dying (VAD) after Victoria. The Voluntary Assisted Dying Act 2019 (WA) (Act) provides for eligible individuals (in consultation with specialised medical practitioners) to legally choose the manner and timing of their death (Scheme). The Act also establishes a Voluntary Assisted Dying Board (Board) to monitor the Scheme.
• What are my organisation's COVID-19 privacy obligations? - In response to the COVID-19 pandemic that has rapidly spread across the world, the Office of the Australian Information Commissioner (OAIC) has released guidance detailing how businesses subject to the Privacy Act 1988 (Cth) (Privacy Act) should be dealing with personal information relating to COVID-19 throughout the crisis.
• What are the limits of a Director’s accessorial liability for wage claims? - A recent Federal Court decision suggests that directors may have a new but risky basis for avoiding personal liability under the Fair Work Act 2009 (Cth).
• What are the limits of a Director's accessorial liability for wage claims? - What are the limits of a Director's accessorial liability for wage claims?
• What determines a casual employee? Casual just awarded 15 years of leave - What determines a casual employee? Casual just awarded 15 years of leave
• What happens to your pet if you pass away? - What happens to your pet if you pass away?
• What is an Independent Children’s Lawyer? - Many of our clients are unaware that Amy Jenkins is not only a Partner of the firm and the head of the Family Law team but she has also been appointed to the Legal Aid Panel of Independent Children’s Lawyers.
• What is involved in acting as an executor of an estate? - So your loved one or friend has passed away and you have just found out that you are appointed their executor. You have no idea what that means and what the role entails. Here is what you need to know about being an executor of an estate.
• What is it about Surgeons? - Surgeons are twice as likely to have claims made against them than physicians, according to the Medical Board of Australia data.
• What the Royal Commission into aged care quality and safety means for you - With the Prime Minister’s call to establish a Royal Commission into the aged care sector, many approved providers are seeking information about what they should be doing now.
• What’s in a day? The Full bench of the Federal Court hands down decision in Mondelez v AMWU [2019] FCAFC 138 - In August the Full bench of the Federal Court handed down a decision regarding the meaning of a ‘day’ for the purpose of personal/carer’s leave under the Fair Work Act.
• What’s in a name? It’s the duties, not the title, which determine award coverage - Employees who earn more than the high income threshold (currently $138,900 per annum) are not eligible to make an unfair dismissal application unless their role is covered by an enterprise agreement or award.
• When do you have to pay independent contractors superannuation? - Correctly determining whether or not an independent contractor is entitled to superannuation is important, because a failure to make the required superannuation contributions could result in you being required to pay the Superannuation Guarantee Charge and, potentially, penalties.
• When someone is lacking financial capacity, what does it mean? - When someone is lacking financial capacity, what does it mean?
• Where did the time go? Limitation periods in building actions where no occupancy permit is issued - The recent VCAT decision of Gledhill v Scotia Property Maintenance Pty Ltd (Gledhill) provides timely guidance in relation to the application of the 10 year limitation of action period for claims for defective building work in Victoria.
• Whistleblower laws finally approved - The new whistleblower laws will apply from 1 July 2019, having now received Royal Assent after passing both Houses of Parliament last month.
• Whistleblower legislation – what does this mean for employers? - Companies registered under the Corporations Act 2001 (Cth) must now comply with an enhanced set of protections for whistleblowers.
• Whistleblower Reform - Put yourself in these shoes… You think your CFO boss is feeding false information to the company auditors to cover up accounting irregularities in the company financials. What would you do? Who should you tell? What protections are you entitled to receive?
• Whistleblower Regime Update - The Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 has now been passed by the Senate – with a number of significant amendments – and is awaiting approval by the House of Representatives in order to finally take effect.
• Whistleblowers policy deadline approaches – new guidelines released by ASIC - The new whistleblower protection laws bring significant changes to the existing whistleblower protection framework. Under the new regime, whistleblowers receive greater protections if they report corruption, fraud, tax evasion/avoidance and misconduct.
• Why have a Will? - Wills are often associated with the elderly, but what happens with the sudden and unexpected death of a young person? The last thing that a family wants in that instance is complexity or the risk of losing their home and income stream.
• Will mega-mergers modify the Agriculture industry’s DNA? - The recent mergers of numerous chemical and agricultural companies are said to be the biggest farm-business oligopoly in history. This article will review the proposed mergers and how they will affect agricultural research as a result.
• With the spread of COVID-19 getting one’s own affairs in order is now a priority - The sudden and unexpected spread of COVID-19 has made us all realise that circumstances which are out of our control can change so rapidly. We are now seeing people panicking at supermarkets and stockpiling staple foods, toilet paper and hand-sanitiser.
• WorkPac Pty Ltd v Skene – Casuals are still casuals - The recent decision about casual employment in WorkPac Pty Ltd v Skene has received a lot of publicity. The Full Court of the Federal Court confirmed a decision that an employee who was hired under a casual employment contract was in fact a permanent employee, based on the substance of the relationship and working arrangements.
• You're moving overseas - is your SMSF compliant? - If you are a trustee and/or member of a Self-Managed Superannuation Fund (SMSF), then you need to consider whether your SMSF will remain compliant if you move overseas.