by DSA LawIs a parenting plan legally binding?
The short answer is no, a parenting plan is not legally binding in the sense that it is not legally enforceable. However, let’s take a step back and examine what a parenting plan is and how it may differ from a parenting order.
First and foremost, a similarity between both is that parenting arrangements should be in the best interests of a child. A parenting arrangement can be in either:
- a parenting plan
- a parenting order
What is a parenting plan?
A parenting plan is a voluntary, written agreement which sets out parenting arrangements for children in the challenging times following a separation.
Parenting plans may be between parents, grandparents or other persons concerned with the care, welfare and development of a child. However, the parenting plan needs to be recorded in writing, signed and dated by the parties to the plan. The plan does not need to be in any specific format or independently witnessed.
Why make a parenting plan?
A parenting plan can be tailored to the unique circumstances of your family.
The benefits of a parenting plan include that it creates certainty in parenting arrangements whilst allowing for a change to the plan as time passes and the circumstances of the family alter. For example, when children commence primary or secondary school. This level of flexibility, afforded to the parenting plan, stands in contrast to parenting orders which are difficult to be amended, set aside or discharged.
A family dispute resolution service may be able to help you make a parenting plan.[1]
What is included in a parenting plan?
A parenting plan may typically include matters such as:
- where the children live
- who the children spend time, and communicate with
- details regarding the children’s schooling or childcare
- the cultural needs of a child
- medical issues surrounding a child and their treatment
- financial support for the children (however, a Child Support Agency cannot enforce these terms unless the terms are also incorporated into a valid child support agreement),
- arrangements for special days such as birthdays and holidays.
Importantly, consideration should be given to the process to be adopted in the event that the plan requires alteration, or disagreements arise with respect to the parenting plan.
How do I decide between a parenting plan and parenting order?
A parenting order is an order made by the court about matters to do with children.[2] This may include:[3]
- the person who the children live with
- how long the children spend with each person(s)
- the allocation of parental responsibility for the children
- maintenance of the children
- aspect of care, welfare or development of the children
Furthermore, a parenting order is a legally enforceable document that parents are required to abide by. Parenting orders can be made by:
- consent, that is by agreement between the parties (this is filed with the court)
- by the court, in circumstances where the parties cannot agree and a hearing is required.
If both parents agree to parenting orders being made, they can apply to the court for parenting orders to be made by agreement. The parties may wish to obtain an order based on the terms of their parenting plan.
Furthermore, the biggest difference between a parenting plan and a parenting order, is that parenting orders are legally binding and enforceable by the court, and a parenting plan is not. There are no legal repercussions or consequences by a court for breaching a parenting plan whereas there can be serious consequences for breaching a parenting order made by the court.
The most appropriate forum for a breach of a parenting order is before the court.[4]
How can DSA Law help?
We understand that there are many challenges to face following a separation. You may still remain confused about how best to document the arrangements relating to your children or you may have questions on the financial aspects of your separation.
If you have a family law enquiry, please Contact Us via our Website or Call us on (03) 8595 9580 and one of our team will be able to assist you.
[1] You may attend mediation or seek out other professionals to assist you. For example, the Family Relationship Advice Line may be a helpful place to start.
[2] Family Law Act 1975 (Cth) ss 60CA, 64B.
[3] Family Law Act 1975 (Cth) s 64B.
[4] Family Law Act 1975 (Cth) s 70NFB.
by DSA LawWhat is intellectual property in Australia?
When operating a business, particularly in this digital age, intellectual property (IP) remains a crucial element that should be understood and appreciated. This is because IP is what distinguishes your version of a business from that of your competitors.
What is intellectual property?
IP is an asset, first and foremost. You can buy it, sell it, build it and destroy it. Unlike the company car or furniture however, you can’t touch it. In this way, it’s known as an intangible asset.
There is no conclusive definition of what IP is. The common characteristics tend to be:
- intangible value; and
- independent intellectual effort.
Some simple examples include:
- your logo, business name and anything else you use to distinguish your business;
- your standard operating procedures; or
the content of your product designs. Further below we explain what category of IP these examples fall into.
Why intellectual property is important?
When developing a strategy for your business, it is important to think about:
- which part of your business involves or relies upon intellectual property;
- how to protect your intellectual property; and
- how to maximise your intellectual property to give you the best outcome.
What common forms of intellectual property should you look out for?
The commonly recognised categories of IP are:
Trade Marks (aka Trademarks)
A ‘trade mark’ is exactly that, a mark, i.e. a sign, that represents your trade, i.e. your business. It is the concept that recognises your distinct branding used to distinguish your goods or services from those of another. [1]
In Australia, you can register a trade mark with the government department called “IP Australia”, which is the authority vested with powers under the Trade Marks Act 1995 (Cth). While registration is not necessary to claim rights over your brand, it certainly helps and ensures your brand’s protection is available for all to see and much easier to enforce if someone tries to misuse it.
For example, while one shoe manufacturer might have a tick shaped logo on its product, another might have three stripes down the side. Both are shoes but their respective logos and business names are their trade marks, and by those trade marks, customers can differentiate their product from that of their competitors.
Copyright
Copyright is a legal right, that cannot be registered in any database unlike trade marks but is able to be protected.
Generally, copyright arises automatically for: [2]
- works (including literary, dramatical, musical and artistic works); and
- other subject matters (including film, sound recording, broadcast or published editions).
For example, if you are the author of a published book, copyright of the literary work within that book almost always arises.
While our shoe example doesn’t really fit this category, if our ‘ticky’ manufacturer wanted to put out a guide on the best running style to use for their shoe, they could potentially claim copyright over the content of that guide. If ‘stripey’ copied the content of the guide and just put their logo on it, Mr Ticky could sue Mr Stripey for breach of copyright.
Patents
A patent is a legal right to a patentable invention that is disclosed to the public. Generally, for a patent to be obtained for a manufactured product or idea, the product or idea:[3]
- should be a ‘manner of manufacture’, that is, something that provides a material advantage in a field of economic endeavour;
- be novel;
- involve an inventive step;
- useful; and
- not be secretly used.
Registration of a patent is a complex process and, in Australia, can provide protection for between 8 and 25 years depending on the type of patent.
Carrying on the shoe analogy, the shoe is a concept that has been in vogue for thousands of years. As technology has improved, so have the shoes. Therefore it is unlikely an entire shoe is able to be patented, but parts of the shoe, such as the material used in the sole to create more traction with the ground, or the particular weave of the fabric, might be patentable if it is sufficiently inventive and novel. Mr Ticky secured 867 patents in 2018 alone.
If you think you have a patentable product or idea, you should be very careful with whom you share it and what obligations they have to you when they do. If you don’t have the right protections in place and someone else decides to copy your work, there’s little you can do.
Confidential Information
Confidential information is another category of IP that cannot be registered but is recognised at law. It also encompasses some of the other forms of IP, such as the details of a patent application are inherently confidential.
Generally, information takes a confidential character when: [4]
- the information has the necessary quality of confidence;
- the circumstances surrounding the information creates a duty of confidence; and
- the person who acquires that information.
Mr Ticky and Mr Stripey would both have significant confidential information in their business. While the name of their new shoe might not be confidential once launched, up until that point it absolutely would be. An employee that obtains that information would be obliged to keep it ‘confidential’ until authorised otherwise.
Therefore, part of your business planning should involve making sure any employees are aware of their confidentiality obligations to the business.
What you should also consider?
In addition to the above most prominent examples, you can register a design for a product packaging and for a new type of plant bred by you. There are also rights known as moral rights arising for those that created the intellectual property, whether it’s owned officially by them or not.
So now that you know IP is more than just a catchphrase used by smart people to describe their ideas, and that you have your own, what should you do?
When planning a new business, have a think about which part/s of your business might be considered intellectual property. If you have any doubts, research, and consider whether seeking legal advice is necessary to help you organise, plan and position your business’s intellectual assets.
Obtain advice as to an appropriate business structure that will protect your IP assets from the risks of trading.
If you’re buying someone else’s business, you should make sure you’re buying as many of their IP assets as possible and ensuring they commit not to use that IP moving forward.
How can DSA Law help?
If you have a commercial or intellectual property enquiry, please Contact Us via our Website or Call us on (03) 8595 9580 and one of our team will be able to assist you.
[1] Trade Marks Act 1995 (Cth) s 17.
[2] Copyright Act 1968 (Cth) s 10.
[3] Patents Act 1990 (Cth) s 18.
[4] Coco. V A.N.Clark (Engineers) Ltd [1969] R.P.C 41
by DSA LawCoronavirus (COVID-19) and Powers of Attorney
Given the increasing prevalence of coronavirus infections in Victoria and the likelihood that more and more of us will need to self-quarantine or self-isolate, now is the time to ensure you’ve got adequate Powers of Attorney in place.
Practically speaking, being required to self-quarantine or self-isolate means you may struggle to get those things done which you ordinarily took for granted, such as attend the bank, sign documents, or even authorise and implement commercial decisions. While technical advances have certainly made this easier, there will be limits to what you can do. Fortunately, a power of attorney can significantly help.
For more information on Powers of Attorney in general, read our article, ‘What is a Power of Attorney?’.
We strongly recommend you consider whether you need to make any of the following:
- Appointment of a medical treatment decision maker, being somebody who can make important medical and related decisions for you, should you not have the capacity to do so yourself.
- Appointment of an enduring power of attorney, being somebody who can make and give effect to legal and financial decisions on your behalf.
- Power of attorneys for companies, which can provide authorisation to individuals to give effect to decisions made by directors of the company.
If you have an issue regarding Powers of Attorney and believe you could benefit expert legal assistance, please Contact Us or one of our Wills & Estate Lawyers at DSA Law on (03) 8595 9580.
by DSA LawMandatory Code of Conduct for Commercial and Retail Leases during the COVID-19 pandemic
On 7 April 2020, the National Cabinet released the Mandatory Code of Conduct (“Code”) for commercial tenancies during the COVID-19 pandemic period.[1] While we are yet to see how the individual State jurisdictions will implement it and some fine tuning is expected, here is DSA Law’s summary of the key points.
1. What is the purpose of the Code?
The purpose of the Code is to:
- ensure that landlords and tenants share a common interest in:
- working together,
- the promotion of business continuity,
- the negotiation of temporary arrangements, and
- working towards achieving mutually satisfactory outcomes
- set good faith principles between landlords and tenants; and
- facilitate open, honest and transparent communication between landlords and tenants,
with, the objective that financial risk and cash flow impacts are shared proportionately between landlords and tenants.
The Code is closely connected with the national JobKeeper program.
2. Eligibility: Are you eligible?
The Code applies to commercial tenancies, which is broadly defined to include retail, office and industrial tenancies.
To be eligible, the tenant must:
- have an annual turnover of less than $50 million AUD; and
- have suffered, or be suffering, financial stress or hardship as a result of COVID-19. If your business is deemed eligible for the JobKeeper programme, the Code applies automatically to you.
Furthermore, the annual turnover threshold test is only intended to be applied for franchises at the individual franchisee level, as opposed to retail corporate groups, for which it applies to the group as a whole.
3. Leasing Principles: What are they?
The key leasing principles, include:
Non-Termination
Landlords must not terminate leases due to non-payment of rent during the COVID-19 pandemic and the reasonable recovery period, which is yet to be determined (Relief Period). It is yet to be made clear whether this only applies to leases falling under the Code, or a wider mandate.
Commitment
Tenants must remain committed to their leasing arrangements, subject to negotiation in accordance with the Code. This would appear to be a warning to tenants not to try and use the Code unnecessarily or to their unfair advantage.
Proportionality
Landlords must offer tenants rent reductions proportionate to tenants’ reduced trade during the Relief Period. Any reductions in statutory charges and insurances must flow through to tenants proportionate to their obligations to pay those amounts as outgoings.
Rental Waivers & Deferral
Any agreed rental waiver and deferral should continue for entire Relief Period.
Waivers (that is, the landlord will never ask this amount to be paid) of rental must be at least 50% of the total reduction in rent negotiated.
Deferred rent (that is, rent the landlord still claims but will wait to be paid when the business is recovering after the Relief Period) must be spread out equally over the balance of a lease term or 24 months, whichever is the greater.
Security
Landlords are precluded from drawing on a tenant’s security for non-payment of rent during the Relief Period.
Penalties
Landlords may not apply any prohibition or levy any penalties if tenants reduce opening hours or cease to trade due to the COVID-19 pandemic.
Rent Freeze
Landlords are to freeze rent increases for the Relief Period.
Extension of Lease
Tenants should be provided an opportunity to extend their lease for a period equivalent to the Relief Period.
4. Sufficient Information: What Tenants should know?
If you intend to rely on the Code of Conduct, landlords may ask you for ‘sufficient and accurate’ information to support your reliance on the Code. As a tenant, you should be prepared to provide evidentiary support for any decline in business. This may include:
- evidence that your business’ annual turnover is less than $50 million AUD;
- evidence that your business is eligible for the JobKeeper programme (i.e ATO approval or evidence submitted for such approval showing your revenue has decreased by more than 30%);
- financial reports stating your income, expenditure, assets and liabilities. The financial statement should be certified by an accountant; and
- a financial report from an accountant showing your business’ current cash flow trajectories, with any significant present or anticipated changes in revenue or income relating to your business.
The landlord may also request:
- any insurance policies that may cover your losses, expenses or liabilities during the Relief Period;
- statements generated from your accounting system; and
- statements provided to / received from financial institutions.
4. Negotiations: What may happen?
Landlords and tenants should openly communicate and attempt to negotiate the best mutual outcome possible based on the Leasing Principles.
Landlords should not attempt to adopt a ‘one-size fits all’ approach, as the circumstances of each individual tenant differ.
Moreover, the Code illustrates an example of how the application of proportionality may apply, in Appendix 1. For example, a qualifying tenant that experiences a 60% loss in turnover would be guaranteed a 60% cash flow (rent) relief. This relief may provide that:
- at a minimum, half of the rent reduction is to be waived during the cashflow relief period; and
- at most half can be deferred rent, which may be negotiated with the landlord to be paid over a minimum of 24 months, or the remainder of the lease term, whichever is the greater.
Please note that these are guidelines and therefore the landlord and tenant may negotiate and agree on an alternative arrangement.
If the parties are unable to arrive at a mutually agreeable arrangement then the dispute will be referred to a binding mediation. In Victoria, we would expect the Victorian Small Business Commissioner’s office will be involved.
Key Takeaways
- landlords should be prepared to negotiate with qualifying tenants, in accordance with the Code.
- tenants should be regularly updating their financials to substantiate any decline in revenue / income from their business.
- the Code is intended to redistribute, fairly, the financial risk and cash flow impact between landlords and tenants.
- the application of the Code is subject to how it will be legislated in each State or Territory.
How can DSA Law help?
There are many scenarios which may arise during this difficult time and the process of dealing with these is often difficult and taxing. DSA Law has the skills and expertise to help you navigate this ever changing landscape.
If you require assistance or guidance with your rights and obligations pursuant to the Code, please Contact DSA Law on (03) 8595 9580.
Download the Article
Mandatory Code of Conduct for Commercial and Retail Leases during the COVID-19 pandemic
[1] Scott Morrison, Update on Coronavirus Measures, Prime Minister of Australia (Web Page, 7 April 2020) <https://www.pm.gov.au/media/update-coronavirus-measures-070420>; National Cabinet, National Cabinet Mandatory Code of Conduct, Prime Minister of Australia (Web Page, 7 April 2020) <https://www.pm.gov.au/sites/default/files/files/national-cabinet-mandatory-code-ofconduct-sme-commercial-leasing-principles.pdf>.
by DSA LawCoronavirus (COVID-19): Legal Issues for Businesses in Australia
With the onset of the Coronavirus (COVID-19) and recent measures to slow the spread of the outbreak, many businesses have adapted by shifting towards digital technology and innovating new methods to deliver goods and services to Australian consumers.
The Federal Government, together with the State Governments, have also introduced concessions and incentives to support local businesses during this period.
Our brief guide:
- summarises the Federal Incentives and Concessions introduced for Australian businesses; and
- addresses the frequently asked employment law questions that employers and employees may face during the Coronavirus (COVID-19) outbreak.
For more information, read our recent Coronavirus (COVID-19) related articles:
Download Guide
Coronavirus (COVID-19): Guide for Business Owners to Legal Issues in Australia
by DSA LawCan employers stand down employees during the Coronavirus (COVID-19) outbreak?
The Coronavirus (COVID-19) outbreak has caused uncertainty, not least when it comes to people’s employment.
One of the current issues for employers is, how do they continue to pay employees, whether that may be by way of:
- normal pay;
- annual leave;
- personal leave; or
- long service leave,
in circumstances where the business is not generating sufficient income to meet liabilities.
Can employers ‘stand down’ and not pay their employees because of the Coronavirus (COVID-19)?
The answer is yes, but only in particular circumstances. However, getting it wrong could expose the employer to proceedings in the Fair Work Commission if key requirements under the Fair Work Act 2009 (Cth)(“the Act”) are not considered.
When can employees be asked to ‘stand down’?
An employer may stand down an employee if the employee cannot usefully be employed because of one of the following circumstances:
- industrial action (other than industrial action organised or engaged in by the employer);
- a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown; or
- a stoppage of work for any cause for which the employer cannot reasonably be held responsible.[1]
If an employer stands down employees, then they are not required to pay those employees.
How does the Coronavirus (COVID-19) affect the standing down of employees?
Whether the option of standing down employees is available in circumstances relating to the Coronavirus (COVID-19) is a case by case assessment of the relevant facts, and an employer should exercise the option cautiously.
An employee may only be stood down if they “cannot be usefully employed” because of the stoppage.[2]
This means that employees should:
- be given the opportunity to perform any work that is available; and
- be given work that they are capable of performing, even if it falls outside their usual duties,
before a decision is made to stand them down.
It is also important to remember that if an enterprise agreement or award applies, and either document contains a stand down provision, any decision to stand down employees must meet the standards set by those agreements.[3]
What are the alternative options to a ‘stand down’?
Stand down should be an option of last resort.
Employers should consider whether employees could be given an ex gratia payment or a form of “subsistence pay”, although there is no legal obligation to do so when employees have been stood down.[4]
Other options that an employer may consider instead of a stand down, include:
- seeking employees’ agreement to take paid (or unpaid) leave for a period. Where paid leave, this at least has the benefit of reducing the debts of the business that will need to be paid out if the employee’s employment has to be terminated;
- in limited circumstances, directing employees to take paid annual leave;
- in limited circumstances, negotiating with employees to change regular rosters or hours of work; or
- terminating the employment of the employees, in which case the employer may have to provide redundancy pay and pay out leave entitlements.
Importantly, if an employer simply faces a reduction in trade volumes or it is uneconomical to continue to employ staff (even if that reduction in trade can be traced back to the Coronavirus (COVID-19), it is unlikely this will be considered a “stoppage” of work for the purposes of the legislation.[5]
Finally, section 524 of the Act is intended to relieve an employer of the obligation to pay wages to employees who cannot be usefully employed in limited circumstances. This limitation is founded on the reality that the consequences of a stand down can have a severe impact on an employee and their family, as the employee may be deprived of wages for a significant period.
How can DSA Law help?
If you have an employment
law enquiry, please Contact Us or one
of the Employment Lawyers at DSA
Law on (03) 8595 9580 so we can assist you.
[1] Fair Work Act 2009 (Cth) s 524.
[2] Fair Work Act 2009 (Cth) s 524(1).
[3] Fair Work Act 2009 (Cth) s 524 (2).
[4] Coronavirus and Australian Work Place Laws, Fair Work Ombudsman (Webpage, 2020)
[5] Australian Federation of Air Pilots v Bristow Helicopters Australia Pty Ltd [2016] FWC 8515.
by DSA LawCoronavirus (COVID-19): What are the legal issues for businesses affected?
The onset of the Coronavirus (COVID-19) has had a profound impact around the world and caused disruption to most facets of daily life.
This includes cancellation of public events, unprecedented ‘work from home’ arrangements, restrictions to international travel, prohibitive social distancing and quarantine measures, and closure of public services.
Businesses that have relied on international commerce for their supply chain, have been particularly challenged as countries grapple with closure of national borders and hibernation of the world economy.
In considering how Coronavirus (COVID-19) may affect your business, you should consider the following legal issues:
Employee – Employer Relationships
Review your employment policies and employment contracts to ensure that current policies in place are suitable for new workplace dynamics created by COVID-19, then consider if changes should be made to policies relating to: [1]
- leave;
- flexible work;
- overseas travel; and
- absenteeism.
If you are encouraging staff to work from home, you should consider what resources employees need to be effective while working from home. This should assist you to streamline work functions during this crisis.
Protect your Business
Review your current commercial contracts with your customers and suppliers.[2] Common contractual terms, that may raise disputes during this pandemic period, include terms such as:[3]
- force majeure;
- extensions of time;
- liquidated damage; and
- notice requirements.
A common issue arising from the pandemic is the reliance on ‘force majeure’ clauses. The term, ‘force majeure’ literally means ‘unstoppable force’, but at lawdoes not have a standard meaning and therefore, it is important to review each clause in this category carefully before attempting to avoid an agreement.
Some agreements have lengthy force majeure clauses and definitions while others will provide that parties can terminate or suspend a contract due to a list of factors specified in the clauses.
Otherwise, you may need to rely on the common law doctrine of frustration.
Risk Management
If you have a policy in place, you should review and ensure your business is ready and able to reduce the risks arising from government mandated restrictions.
Factors to consider when reviewing risk management policies, include:
- creating a safe work environment, particularly if your team are working from home, this remains your responsibility as an employer;
- optimising revenue;
- reducing or deferring expenses;
- reliance on alternative supply/substitutes if relevant imports are affected;
- contacting financiers to discuss what financial support may be available; and
- reviewing your insurance policies and their coverage.
How can DSA Law help?
If you have a commercial legal issues, please Contact Us or one of the Commercial Lawyers at DSA Law on (03) 8595 9580 so we can assist you with your concerns.
[1] To read more regarding leave entitlement, you can find out by reading the article, “How does the Coronavirus (COVID-19) affect employees’ leave entitlements. “
[2] To read more regarding defaults and statutory demands, you can find out by reading the article, “How does Coronavirus (COVID-19) affects Defaults and Statutory Demands.”
[3] To read more regarding frustration and force majeure, you can find out by reading the article, “How does the Coronavirus (COVID-19) affect Retail Leases.“
by DSA LawHow does the Coronavirus (COVID-19) affect employees’ leave entitlements?
At the risk of stating the obvious, the Coronavirus (COVID-19) pandemic is having a massive impact on the Australian workforce. With each passing day, more and more employees are being directed to work from home so as to help promote social distancing and slow the spread of the Coronavirus (COVID-19).
Whilst the current climate is unprecedented, employees are still entitled to take leave. Most part-time and full-time employees are entitled to 4 weeks of paid annual leave and 10 days of paid personal/carer’s leave each year.[1] If you’ve been employed by the same company, or in the same job across different companies for more than 7 years you may even have an entitlement to pro-rata long service leave.
Your specific circumstances will determine what type of leave you could take. Annual and long service leave are often both able to be taken in half measures, meaning you can take smaller payments over a longer period of time. This can be helpful in the longer run as less tax is payable on each payment under the PAYG regimes, meaning you might not have to wait until after 30 June to see more of your money.
What if I am sick, or I am caring for a sick family member?
If you are sick or caring for a sick family member, you can take personal/carer’s leave.
If you have exhausted your entitlement to personal/carer’s leave, discuss with your employer the possibility of taking annual leave.
If you have exhausted both your personal/carer’s leave and annual leave you may be required to take a period of unpaid leave. Remember, your employer cannot lawfully dismiss you if you are absent from work due to illness or injury, and the period of absence is less than 3 months (either consecutively or in total over a 12-month period).[2]
You may still be required to provide evidence to your employer of your illness/injury.
I am required to be quarantined, self-isolate or cannot return to work – can I take leave?
If you are required to be quarantined, self-isolate or cannot return to work, because of Coronavirus (COVID-19), your options include the following:
- if you are sick, you may take personal leave; [3]
- if you are not sick or have exhausted your personal leave entitlements, you may take annual leave or long-service leave (if eligible) if agreed to by your employer (they must agree unless it reasonable not to do so, and in a situation such as that anticipated above, few if any refusals could be reasonable);[4]
- you may discuss with your employer the possibility of working remotely, or taking a period of paid or unpaid leave (e.g. your employer may agree for you to take annual leave in advance).
My Employer has told me to not come to work – do I have to take leave?
If you are not sick and your Employer nevertheless directs you to not come to work, they must continue paying you and they cannot make deductions from your leave entitlements unless:
- there has been a stoppage of work; and
- the employees cannot be usefully employed.[5]
Generally, an employer cannot stand down employees because there is a downturn in business.
How can DSA Law help?
There are many scenarios which may arise during the Coronavirus (COVID-19) pandemic.
If:
- you require legal advice about your leave entitlements or other workplace rights; or
- you are an employer and need advice as to your obligations,
please Contact Us or
one of the Employment Lawyers at DSA Law on
(03) 8595 9580 so we can assist you with your concerns.
[1] Fair Work Act 2009 (Cth) ss 87, 96.
[2] Fair Work Act 2009 (Cth) s 352; Fair Work Regulations 2009 (Cth) r 3.01.
[3] Fair Work Act 2009 (Cth) s 97.
[4] Fair Work Act 2009 (Cth) s. 88.
[5] Fair Work Act 2009 (Cth) s 524.
by DSA LawDSA expansion takes a rural shift
Dynamic Melbourne law firm DSA Law is set to partner with historic Ballarat firm Nevett Wilkinson Frawley in a strategic alliance that will bridge the gap between the two cities.
Four years of expansion and consolidation of their place in the Melbourne legal fraternity has DSA Law knocking on the door of the ‘next step’ in its evolution.
Part of that future now includes a strategic alliance with Ballarat law firm Nevett Wilkinson Frawley, a firm with over 100 years’ history and broad access to the greater Ballarat and Western District regions.
Newly appointed CEO of DSA Law, Litsa Pillios, says “we weren’t looking for your cliché ‘city firm takeover’. Instead, we’re sending our very talented partner, Ben Franklin, to become part of the NWF team. Ben will integrate with the local community and create a service pipeline of great value between the Ballarat and Melbourne offices using his in depth understanding of what DSA Law can do where needed, as well as adding his wide ranging skillset to NWF’s resources. This effort will be supported by fly-in, fly-out support from DSA Law’s senior staff as and when the specialised needs arise. We see Ballarat and the surrounding districts as an area experiencing economic growth and as a regional success story. We see it as a long-term investment.”
Having appointed a CEO to start the 2020 year, and taken on a second level of their building at 180 Queen Street, DSA’s three founding partners, Joseph Alesci, Joseph Di Mauro and Kimble Stynes, have their focus fixed on a bright future.
“From the outside, nothing will change. The NWF brand is iconic and synonymous with the Greater Ballarat and Western Districts Region. Ben will be running NWF with the assistance of Frank and Rhonda. In addition, he will have all the support he needs from DSA in Melbourne, but the firms will maintain distinct and separate identities. At the same time, the alliance with NWF adds a lot to our firm’s dynamic with its history and experience, so the intellectual property sharing works both ways.”
Frank and Rhonda will be welcoming Ben on 30 March 2020.
Ben Franklin (click here for his profile), is delighted with the opportunity. “I’m really looking forward to it. I ‘cut my teeth’ as a rural lawyer in Shepparton before refining my skills in the CBD over the past six years. The opportunity to bring a unique skillset and legal offering to Ballarat’s ever-growing business community is exciting. What’s more, we can now say to clients whose work requires a Melbourne presence that we have people on the ground down there we can not only trust but whom are on call and ready to provide a country-style service.”
With his wife and two young sons, the ‘tree change’ is an added bonus. “It’s hard to explain to a nearly 3-year-old that you spend at least an hour in traffic/on a train every day and that’s why you haven’t seen him for a couple of days. Our job as lawyers requires a lot of commitment but I’m really looking forward to finding more of a balance.”
Ms Pillios confirms this is not just an exciting year for Mr Franklin either. “With my appointment, this new strategic partnership, expansion into Level 1 and a couple of other developments in the works, 2020 is going to be a big year for DSA and there’s no doubting we’re on a mission.”
For further information or comment, please contact DSA Law’s CEO Litsa Pilios on (03) 8595 9580.
by DSA LawHow does the Coronavirus (COVID-19) affect Retail Leases?
With the rapid outbreak of Coronavirus (COVID-19) and the recent announcements in New South Wales and Victoria of lockdown, landlords and tenants are questioning how the virus will affect them. In particular, tenants under commercial or retails leases are questioning the viability of their businesses under the current environment and their options for terminating their lease.
What happens if the tenant decides to stop trading?
In the absence of a force majeure provision, frustration, or vitiating factors, a tenant will, generally, not be entitled to stop making rental payments purely because they have been forced to stop trading. In fact, a lot of leases require a tenant to remain open during ordinary business hours. Accordingly, the tenant would need too make the decision to stop trading in the knowledge that they will still generally be liable for rental and other payments due under the lease.
Can a tenant terminate a lease under “force majeure”?
Generally, force majeure clauses provide a party with a right not to perform its contractual obligations if that performance is impacted by events outside its control, such as war or a natural disaster. Under the current climate, force majeure clause may provide the best remedy for a party wishing to avoid a lease.
The term, force majeure, does not have a standard meaning and it is important that the force majeure clause is carefully examined to determine what constitutes a “force majeure event” and the rights conferred on the parties in the event that there is such an event.
The term may be defined broadly to include, events:
- that are not the fault of any party which are not able to be overcome by reasonable endeavours; and/or
- caused by an act of God (this may include, epidemics or quarantines).
The term may also be defined in the agreement to include other specific events. However, if there is no definition of what constitutes a “force majeure event”, there is a risk that the clause will be determined to be void for uncertainty.
Ultimately, whether a tenant is entitled to terminate the lease under any force majeure provisions will depend on how the provision was drafted. Otherwise, this will generally be reliant on the common law understanding of force majeure.
In Victoria, the standard lease terms do not include a force majeure as a standard provision so it will be a lucky tenant that has one.
Frustration of lease
Generally, frustration occurs where a tenant can point to an event which makes further performance of its obligations “fundamentally” different from the situation to that it contracted for. [1]
The circumstances in which the doctrine of frustration can apply to leases are exceedingly rare and the following factors are relevant:
- duration of the lease – the longer it is the harder it is to frustrate;
- how important the lease is to the tenant’s business – the more important, the more likely frustration becomes possible;
- the duration of the frustrating event – the longer it is, the more likely frustration is an option;
- an event outside the power and control of the parties which renders the use of the property during the leased period unlawful or impossible – that is, a contractual obligation becomes incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract (Ooh! Media Roadside Pty Ltd v Diamond Wheels Pty Ltd (2011) 32 VR 255 at [70] per Nettle JA).
What if my landlord closes a whole building or shopping centre?
A landlord under a lease is required to provide a tenant with quiet enjoyment and the consequence of a closure by a landlord will vary from lease to lease.[2]
Leases will often contain a requirement that the tenant comply with all laws. The right to close a shopping centre will largely depend on whether a shutdown is Government mandated as opposed to a directive or recommendation only. Generally, a contract cannot require a party to act unlawfully. Therefore, keeping a building open in the face of laws that say the landlord must not, is not a term that of a contract that will be enforceable.
However, it is common for leases to include provisions, or have such provisions implied, that a tenant is entitled to rent reductions and to be excused from other payments due and payable under the lease if the tenant cannot reasonably access or use the premises.
Can a tenant receive compensation if the premises cannot be accessed?
Finally, the landlord may be liable to pay the tenant reasonable compensation for loss and damage in certain circumstances if the tenant is unable to access the premises as a result of actions taken by the landlord, including: [3]
- the landlord substantially inhibiting the tenant’s access to the retail premises; or
- the landlord unreasonably taking action that substantially inhibits or alters the flow of customers to the retail premise.
However, these provisions do not apply to action taken by a landlord as:
- a reasonable response to an emergency;
- under an Act; or
- resulting from a requirement imposed by a body acting under the authority of an Act,
Given this, it is important that parties are aware of government guidelines, directives and laws.
How can DSA Law help?
If you are a landlord or tenant and have an issue or question relating to how your rights or liabilities under the lease are affected by the Coronavirus (COVID-19), please Contact Us or one of the Commercial Lawyers at DSA Law on (03) 8595 9580 so we can assist you with your concerns.
[1] Davis Contractors Ltd v Fareham Urban DC [1956] UKHL 3.
[2] Hawkesbury Nominees v Battik [2000] FCA 185.
[3] Retail Leases Act 2003 (Vic) s 54.
by DSA LawHow Coronavirus (COVID-19) affects Defaults and Statutory Demands?
With the unprecedented upheaval following the spread of Coronavirus (COVID-19), more and more businesses are temporarily closing their doors and/or having their staff work remotely off site to mitigate the spread of the virus.
Whilst the Coronavirus (COVID-19) has already caused considerable disruption, this now presents a further risk – that of companies unknowingly facing default judgments being entered against them in Court, as well as statutory demands inadvertently not being complied with, due to their registered offices being unmanned. The consequences are potentially catastrophic.
Even though the Courts are taking measures in response to the virus by deferring hearings, using video conferencing and applying other technology, the Court Rules and standard procedures remain in place.
Service by mail
Court proceedings brought against companies, as well as statutory demands, are both typically instigated by the relevant documentation being ‘served’ on the company by ordinary post, to its registered office. The rules provide that a document may be served on a company by leaving it at, or posting it to, the company’s registered office.[1]
In most occasions, this is either the company’s trading address or the address of its accountants.
Whilst permissible, it is not a formal requirement that the document actually be given personally to a director. Further, if the registered office is a business address, there is no requirement that the business be open or trading at that time.
Risk of not monitoring mail
Given the present state of affairs, and impending office lockdowns and closures, there is every risk of documentation being validly served on a company by post to an unmanned office and not actually coming to anybody’s attention.
As such, it is imperative that companies have measures in place to ensure that their ordinary physical mail is being checked in a timely fashion. If it is not, there is a severe risk of either:
- a judgment in default being obtained against the company if a Court proceeding is issued against it, served and then not defended (the judgment is then immediately recorded against the company’s credit file); or
- a statutory demand not being complied with, which paves the way for a creditor to issue a winding up application against the company and have a liquidator appointed.[2]
Court Proceedings
Court Proceedings are typically initiated by a Writ, Originating Process, Complaint (a Writ in the Magistrates’ Court) or other application being served on a company by being sent to a company’s registered office by post.
Debt claims for instance, are most commonly issued in the Magistrates’ Court or County Court of Victoria, depending on the amount being claimed. The time frame to respond varies as follows:
- with a Magistrates’ Court Complaint, if a Defence is not filed with the Court within 21 days of the Complaint being served, the Plaintiff can obtain a judgment in default of defence.[3]
- with a County Court writ, if a Notice of Appearance is not filed with the Court within 10 days of the writ being served, the creditor can apply to obtain a judgment in default of appearance.[4]
In both instances, as well as being immediately devastating to a company’s credit rating, the creditor will also typically obtain an order for legal costs and interest on top of the debt and can begin enforcement proceedings against the company.
Further, this may mean that you are in default of other agreements, enabling other parties to terminate agreements you thought were not at risk, or, for example, call up a loan.
Provided they were validly served, it is no excuse to say that the document(s) didn’t actually come to anyone’s attention.
Creditor’s Statutory Demand for Payment of Debt
This is a statutory process whereby a creditor who is owed a debt of at least $2,000 can serve a demand for payment on a company.[5]As of 25 March 2020, this limit has temporarily been increased to $20,000.
Crucially, there is a strict 21 day deadline for compliance from the date of service. Whilst this is ordinarily 21 days from the date of service, where the date of service is on or after 25 March 2020, the deadline has temporarily been increased to 6 months from the date of service. Within that time, the company needs to:[6]
- pay the debt in full; or
- settle the debt to the creditor’s satisfaction; or
- bring an application to set aside the demand and serve that application on the creditor.[7]
If the company doesn’t do any of the above the applicable deadline, it is presumed to be insolvent.[8]
This then enables the creditor to bring an application in the Supreme or Federal Court to wind up the company, which may result in a liquidator being appointed if not opposed.
The 21 day deadline is strict and cannot be extended.
As such, it is imperative to ensure that processes are in place to ensure that mail being sent to the company’s registered office is:
- still being monitored;
- that the date it is received is being correctly recorded; and
- that any Court proceedings, statutory demands or other legal notices are actioned in a timely fashion to avoid significant inconvenience, potentially considerable legal costs being incurred and at worst, your company facing liquidation.
How can DSA Law help?
If you have a bankruptcy or insolvency issue, please Contact Us or one of the Commercial Lawyers at DSA Law on (03) 8595 9580 so we can assist you with your concerns.[9]
[1] Corporations Act 2001 (Cth) s 109X
[2] Corporations Act 2001 (Cth) s 459F.
[3] Magistrates Court Civil Procedure Rules 2018 (Vic) r 21.02.
[4] County Court Civil Procedure Rules 2018 (Vic) r 21.01.
[6] Corporations Act 2001 (Cth) s 9.
[8] Corporations Act 2001 (Cth) s 459F.
[9] To know more regarding bankruptcy or insolvency, you can find out by reading the articles, “What is a Voluntary Administration” and “What happens when you declare bankruptcy”.
by DSA LawDo I need a Labour Hire Licence in Victoria?
From 30 October 2019, only licensed labour hire providers may supply the provision of labour hire services. This came about through a new legislation called Labour Hire Licensing Act 2018 (Vic) (“Act”), which was designed to:[1]
- protect workers from being exploited from providers of labour hire services; and
- improve the transparency and integrity of the labour hire industry.
In particular, prior to the introduction of this new law, it was found that labour hire workers had “little protection from exploitative behaviour”, and were often:[2]
- afraid to come forward;
- uncertain of how to seek assistance; or
- operated on temporary visas, and subsequently returning to their home country.
Therefore, with the introduction of the Act in Victoria, if you run a business that that is a labour hire provider, you must be licensed.[3] Otherwise, you may face significant penalties if you provide labour hire services without a licence to do so.
Is my business, a Labour Hire Provider?
There are three questions that may asked to determine whether your business is a labour hire provider, if:
- your business supply workers to another business;
- the workers perform work ‘in and as part of’ that other business; and
- the workers are within the meaning of the Act.
If you answered yes to the above, your business is most likely a labour hire provider.[4] However, examples that your business may not be a labour hire provider, includes:
- an accounting firm supplying an employee accountant to prepare tax documents for a client’s business; or
- a plumbing company supplying an employee plumber to fix a dishwasher at a domestic residence.[5]
Furthermore, if your business provides recruitment or placement services, and provides or procures accommodation for the workers, then you may also fall definition within the of labour hire provider.[6] This is so, even if you are not obligated to pay the workers for the work engaged. [7]
Likewise, the definition of labour hire provider can also extend to businesses conducting contractor management services in some circumstances.[8] Examples of types of contractor managements services that may be classed as labour hire providers, include:
- providing administration and payroll functions;
- providing supervision or performance management functions,
in relation to an independent contractor that is supplied.[9]
For some businesses, the question of whether they provide labour hire services will be reasonably straightforward. For other businesses, whether they fall within the Act’s definition of “labour hire providers” will not be so clear. However, the consequences of failing to properly identify your business as a labour hire provider can be detrimental.
What happens if my business does not obtain a Labour Hire Licence?
If you are found to be providing labour hire services, without appropriate licence, the Labour Hire Licensing Authority may apply to the Court for any order that the Court considers appropriate against you.[10]
This may include a penalty of up to 800 penalty units for an individual (i.e. a fine of $132,176.00), or 3200 penalty units for a body corporate (i.e. a fine of $528,704.00).[11]
How can DSA Law help?
If you have
an employment issue or question, please Contact Us or one of Commercial Lawyers at DSA Law on (03) 8595 9580 so we can assist you
with your concerns .
[1] Labour Hire Licensing Act 2018 (Vic) s 4.
[2] Victoria, Parliamentary Debates (Hansard), Legislative Council, 8 February 2018, 216.
[3] Labour Hire Licensing Act 2018 (Vic) s 13.
[5] Explanatory Memorandum, Labour Hire Licensing Bill 2017 (Vic) 3.
[6] Labour Hire Licensing Act 2018 (Vic) s 8.
[7] Explanatory Memorandum, Labour Hire Licensing Bill 2017 (Vic) 4.
[8] Labour Hire Licensing Act 2018 (Vic) s 8.
[9] Explanatory Memorandum, Labour Hire Licensing Bill 2017 (Vic) 5.
[10] Labour Hire Licensing Act 2018 (Vic) s 93.