Norman Waterhouse
   
Norman Waterhouse

 

 

Normans Briefly

In this issue

Welcome to the March edition of our Corporate and Commercial Briefly.

>   Smarter, Better, Stronger... Half Day Commercial Seminar
>   Walking the Talk – Less than 2 weeks to go – Don’t miss out!
>   Employment – Fair Work Act Amendment Bill 2014
>   Privacy Law Reforms
>   Employment – The age-old question: independent contractor or employee?
>   Property, Infrastructure & Development – Amendments to the Residential Tenancies Act 1995(SA)

Smarter, Better, Stronger... Half Day Commercial Seminar

Friday 23 May 2014
Adelaide Oval

The Norman Waterhouse Commercial Team invites you to join them for a half day in depth analysis of business issues relevant in the current economy. Stay ahead of the game with this invaluable seminar for accounting professionals, business owners and financial planners.

Attendees may be eligible for CPD points with industry associations including FINSIA, CPA and The Tax Institute.

Click here to view the program and register.


Walking the Talk – Less than 2 weeks to go – Don’t miss out!

Seats are filling up quickly for Walking the Talk 2014, the annual full-day conference presented by the Norman Waterhouse Employment and Industrial Relations Team. This year’s conference follows our highly successful conferences in both 2012 and 2013, and will again comprise in-depth and interactive analysis of the contemporary workplace issues that matter most to our clientele. This is an invaluable learning experience for Chief Executive Officers, directors, human resource professionals and managers across the State and Federal industrial regimes.

Walking the Talk 2014 is a must-attend conference for anyone who employs workers, regardless of the size of their business. Topics discussed will be of importance to all employment relationships. This year will also see the return of the ‘expert panel’, where you can ask the questions you have always wanted to ask.

The conference program and registration is online now! Book now to avoid disappointment. Contact us to see if our conference can help fulfil mandatory professional development obligations.


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Employment – Fair Work Act Amendment Bill 2014

On 27 February 2014, the Government introduced the Fair Work Act Amendment Bill 2014 (Amendment Bill) into the Federal Parliament. If passed, the Amendment Bill could have a significant impact on the Fair Work Act 2009 (Cth) (Fair Work Act) and therefore your relationship with employees. The more significant changes are summarised below.

Right of entry

Currently, a union official’s right to enter a workplace for the purpose of holding discussions is determined upon whether the relevant union is entitled to represent the industrial interests of relevant employees at the workplace. This means that a union can enter a workplace for discussion purposes even if they have no actual members at that workplace and no-one has requested their presence.

The Amendment Bill proposes to restrict these entry rights so that a union official will only be entitled to enter a workplace for discussion purposes where:

  • they are covered by an enterprise agreement; or
  • employees at the workplace have requested the union’s presence.

The Amendment Bill also repeals the expanded entry rights of unions introduced in 2013 by:

  • abolishing the obligations on an employer (or occupier) to organise transport and accommodation arrangements to remote work sites; and
  • restoring former rules relating to the default location of interviews and discussions – a union official will no longer have the power to insist on having discussions with employees in the lunchroom. Rather, the union official must comply with the employer’s reasonable requests to use particular rooms or areas of a work site and take particular routes to those areas.

Furthermore, the Amendment Bill broadens the power of the Fair Work Commission to deal with disputes about excessive right-of-entry visits. The powers of the Fair Work Commission include suspending, revoking or imposing conditions on an entry permit. 

Individual flexibility arrangements (IFAs)

Various amendments are proposed in relation to individual flexibility arrangements (IFAs). Importantly, employees must now demonstrate that they will be ‘better off overall’ under an IFA. Additionally, enterprise agreements will no longer be able to restrict the scope of IFAs. Enterprise agreement flexibility arrangements must permit flexibility in relation to all five of the following: arrangements about when work is performed, overtime rates, penalty rates, allowances and leave loading.

Other proposed amendments include extending the unilateral termination period for IFAs made under enterprise agreements from 28 days to 13 weeks, having the 13-week unilateral termination period for modern awards and enterprise agreements included in the legislation, requiring a written statement from employees indicating why they believe an IFA meets their needs and leaves them better off, and introducing a defence for an employer from contravening a flexibility term if the employer reasonably believed that the requirements had been complied with.

Annual leave and unpaid parental leave

The Amendment Bill clarifies the circumstances where annual leave loading is payable when a person leaves their job. The Amendment Bill also proposes to introduce a requirement that an employer must give an employee who has requested to extend their unpaid parental leave a reasonable opportunity to discuss the request unless the employer has already agreed to the request.

Other changes that are proposed in the Amendment Bill include:

  • Changes to the Greenfields agreement process - allowing an employer to apply for the Fair Work Commission to approve a proposed Greenfields agreement if that employer has been unable to successfully negotiate the agreement within 3 months.
  • Unfair dismissals - Gives the Fair Work Commission clearer powers to dismiss unfair dismissal proceedings ‘on the papers’ without conducting a conference or hearing in certain circumstances.
  • Amendment of the transfer of business rules - When an employee takes up employment with an associated employer at their own initiative, the transfer of business provisions under the Fair Work Act will not apply.
  • Protected action ballot orders - The Fair Work Commission will not be able to issue a protected action ballot order before bargaining for a proposed enterprise agreement has commenced.

If you have any queries about the abovementioned amendments, or any other changes arising from the Amendment Bill, we encourage you to contact a member of the Employment Team for further information and assistance.

For more specific information on any of the material contained in this article please contact Sathish Dasan on 8210 1253 or sdasan@normans.com.au or Chris Alexandrides on 8210 1299 or calexandrides@normans.com.au.



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Privacy Law Reforms

On 12 March 2014, the Privacy Amendment (Enhancing Privacy Protection) Act 2012 came into operation and amended the Privacy Act.

General privacy amendments

As part of these amendments, a single set of uniform Australian Privacy Principles (APPs) replaced the Information Privacy Principles (IPPs) and National Privacy Principles (NPPs) which previously applied to Commonwealth agencies and private sector businesses caught by the Privacy Act (APP entities).

Businesses caught by the Privacy Act should act immediately to ensure that they have in place privacy practices and procedures and a privacy policy which comply with the APPs.  This includes private sector businesses (and non-profit organisations) with an annual turnover of more than $3m.  A business with a turnover of $3m or less is not covered unless the business:

  • is related to another business with turnover of more than $3m;
  • provides a health service;
  • trades in personal information;
  • is a contracted service provider for a Commonwealth contract;
  • is a credit provider or credit reporting agency;
  • is a reporting entity under the Anti-Money Laundering an Counter-Terrorism Financing Act; or
  • opts into Privacy Act.

The new APPs:

  • introduce a positive obligation on APP entities to take reasonable steps to implement practices, procedures and systems that comply with the APPs and that enable privacy inquires and complaints to be dealt with properly;
  • introduce more prescriptive requirements for privacy policies than the previous requirements.  A privacy policy must contain specified information, including the kinds of personal information the APP entity collects, how an individual may complain about a breach of the APPs, and whether the APP entity is likely to disclose information to overseas recipients. An APP entity needs to take reasonable steps to make its APP privacy policy available free of charge and in appropriate form;
  • provide that unless an exception applies, sensitive information (which includes health information and information about an individual’s racial or ethnic origin, religion, sexual orientation or criminal record) must only be collected with an individual’s consent and if the collection is also reasonably necessary for one or more of the APP entity’s functions or activities;
  • create new obligations in relation to the receipt of personal information which is not solicited;
  • require an APP entity to generally make an individual aware of their rights in respect of personal information held about that individual, whether any personal information about that individual may be disclosed to overseas recipients and the likely location of those overseas recipients, at the time or as soon as practicable after, the entity collects the personal information.  This will generally be done by provision of a privacy policy at that time;
  • prohibit the use or disclose personal information (other than sensitive information) for direct marketing purposes unless the individual has either consented to their personal information being used for direct marketing, or has a reasonable expectation that their personal information will be used for this purpose, and conditions relating to opt-out mechanisms are met.  Sensitive information may only be used for direct marketing with the individual’s consent;
  • require an APP entity to ensure that any overseas recipient of personal information provided by the entity does not breach the APPs in relation to that information. In some circumstances, an act done, or a practice engaged in, by the overseas recipient that would breach the APPs, will be taken to be a breach of the APPs by the APP entity;
  • require an APP entity to ensure that all personal information used or disclosed is relevant, as well as, accurate, up-to-date and complete, having regard to the purpose of the use or disclosure;
  • require an APP entity to respond to requests by an individual for access to personal information it holds about that individual within a reasonable period; and
  • require an APP entity to respond to a correction request or a request to associate a statement by the individual within a reasonable period after the request is made.

Credit reporting changes

In addition to the above amendments relating to privacy generally, there have been changes made in relation to consumer credit reporting.

Consumer credit was previously defined to mean credit to an individual where that individual intends to use the credit wholly or primarily for personal or household purposes.  This definition is now extended so that the consumer credit reporting provisions also apply to credit given to an individual where that credit is intended to be used to acquire, maintain, renovate or improve residential property or investment purposes, or to refinance such credit.

The reforms also permit more comprehensive credit reporting allowing the reporting of information about an individual’s current credit commitments and their repayment history information over the previous two years.

These measures are accompanied by greater privacy protection for individuals’ credit-related information.  These protections include:

  • a simplified and enhanced correction and complaints process;
  • a prohibition on the reporting of credit-related information about children;
  • a prohibition on the reporting of defaults of less than $150;
  • the introduction of specific rules to deal with pre-screening of credit offers;
  • the introduction of specific provisions that allow an individual to freeze access to their credit related personal information in cases of suspected identity or theft or fraud; and
  • the introduction of civil penalties for breaches of certain credit reporting provisions.

These reforms will be supported by a credit reporting code which will apply to all credit reporting bodies and specified credit providers and other entities such as mortgage and trade insurers listed in the code.  The code will set out how the credit reporting requirements are to be applied or complied with by those entities.

Other changes

In addition, the Australian Information Commissioner’s powers under the Privacy Act have been extended allowing the Commissioner to:

  • conduct investigations on his own initiative (ie without a complaint);
  • make determinations following an investigation which can be enforced by court proceedings;
  • accept court enforceable undertakings; and
  • seek civil penalties in the case of serious or repeated penalties.

For more specific information on any of the material contained in this article, please contact Johanna Churchill on 8210 1236 or jchurchill@normans.com.au.



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Employment – The age-old question: independent contractor or employee?

From the recent outcome of the case of Bertok v Halsan Pty Ltd trading as Hughes Chauffeured Cars [2014] FWC 1252, we are provided with an opportune moment to remind our readers about the differences between an ‘independent contractor’ and an ‘employee’. Halsan Pty Ltd (the Respondent), instructing Norman Waterhouse, has successfully had Mr Bertok’s (the Applicant) application for unfair dismissal remedy dismissed in the Fair Work Commission (FWC).

The Applicant claimed he was unfairly dismissed as an ‘employee’ when the Respondent advised that he would not be offered any more work because of complaints they had received from a major customer. The Respondent contended that the Applicant was always an independent contractor.

Section 382 of the Fair Work Act 2009 (Cth) provides that only an employee may be protected from unfair dismissal.

Independent contractor vs employee

The question of whether a worker is an employee or an independent contractor turns on the nature of the contract between the parties. The FWC considered whether the contract was “characterised as a contract of service or a contract for services.” In other words, was the Applicant a servant of another in that other’s business, or was the Applicant carrying on a business of his own. The FWC answered this question by considering the totality of the relationship between the parties.

The FWC looked at the following indicia:

  • control over how work is performed and the hours of work etc;
  • the entitlement to work for others;
  • a separate place of work and the advertising of the services;
  • the provision and maintenance of tools and equipment;
  • the entitlement to delegate or sub-contract work;
  • the right to suspend or dismiss;
  • the public presentation of the workers (uniforms and other badging);
  • deduction of income tax;
  • the provision of invoices/periodic payment of wages;
  • paid holidays and leave;
  • the nature of the work;
  • the creation of goodwill and other saleable assets; and
  • the proportion of remuneration on business expenses.

Summary of the key facts taken into consideration

The Respondent provided chauffeured car services to its clients. The Respondent would contact the Applicant to carry out work when it was required.

The Applicant owned and operated his own vehicle, and paid for all expenses associated with his vehicle. This included paying for fuel, repair work, cleaning costs, etc.

The Applicant had complete discretion as to when he wanted to work, he was able to refuse work by not making his car available whenever he desired. The Applicant did not have access to any leave entitlements (i.e. annual leave, personal leave, long service leave) from the Respondent.

The Applicant was also able to sub-contract his vehicle to other drivers, as he chose, and was also able to perform work for other companies. The Applicant was not limited to only work for the Respondent. This was an option that many other drivers who provided services to the Respondent would partake in.

Furthermore, the Applicant was never paid a salary. The Applicant’s income from the Respondent was determined by how many jobs he accepted. The Applicant was also responsible for and did his own taxation returns.

FWC decision

The FWC, in applying the High Court case of Hollis v Vabu Pty Ltd (2001) 207 CLR 21, held that the Applicant was conducting a business of his own. Furthermore, the FWC held that the Applicant was not an employee within the meaning of the FW Act. Therefore, the unfair dismissal application was itself dismissed because the Applicant was not an employee, and in fact an independent contractor.

Take home messages

Generally, employees work in your business and are part of your business; independent contractors are running their own business. To correctly work out whether a worker is an employee or an independent contractor, you need to look at the totality of the working arrangement in particular the terms and conditions under which the work is performed. The difference between an independent contractor and an employee is an age-old question and will always rely heavily on the facts. While this decision provides some clarity for this industry, each case should always be dealt with individually.

For more specific information on any of the material contained in this article please contact Lincoln Smith on 08 8210 1203 or lsmith@normans.com.au or Ganesh Krishnan on 8217 1395 or gkrishnan@normans.com.au.



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Property, Infrastructure & Development – Amendments to the Residential Tenancies Act 1995(SA)

The Residential Tenancies (Miscellaneous) Amendment Act 2013 (SA) was enacted last year and made a number of changes to the Residential Tenancies Act 1995 (SA) (RT Act) and related amendments to the Fair Trading Act 1987 (SA) and the Residential Parks Act 2007 (SA).  The amendments have been made to reflect changes in the residential tenancy sector over the past 15 years and to provide more clarity and protection for tenants and landlords. A number of the significant amendments for landlords to be aware of are discussed below.

Application of the RT Act

A number of amendments have been made to clarify when the RT Act applies.  For example, the RT Act previously did not apply to a right to occupy residential premises arising pursuant to a contract for the sale of land.  This has been amended to now provide that the RT Act will only not apply in these circumstances where the right to occupy is for a period of 28 days or less.

Disclosure obligations

A landlord or agent must now give a tenant, before entering into a residential tenancy agreement, a written guide that explains the tenant’s rights and obligations under the agreement, in a form approved by the Commissioner for Consumer Affairs. 

Requirements in relation to the content of residential tenancy agreements

The RT Act now prescribes certain details that must be included in a residential tenancy agreement.  For example, it is now a requirement to state clearly in a prominent position at the beginning of the agreement that the agreement is a residential tenancy agreement and that the parties should consider obtaining legal advice about their rights and obligations under the agreement. 

A landlord must also ensure that a tenant receives a copy of the residential tenancy agreement when the tenant signs it and a copy of the agreement executed by all parties within 21 days after the tenant gives the agreement back to the landlord or the landlord’s agent to complete its execution.

Variation of rent

A landlord may still increase the rent payable under a residential tenancy agreement pursuant to section 55(1) of the RT Act, however, the date fixed for an increase must now be at least 12 months (previously 6 months) after the date of the agreement (unless the rent is increased by the mutual agreement of the parties).

Record keeping

A landlord must keep a copy of a written residential tenancy agreement and any variations to it, in paper or electronic form, for at least 2 years following the termination of the agreement.  The RT Act now also prescribes additional requirements regarding records that must be kept in relation to rent.

Domestic facilities

A landlord must take reasonable steps to ensure that a tenant is given, before or at the time the tenant commences occupation of the premises, manufacturers’ manuals, or written or oral instructions, about the operation of any appliances or devices provided by the landlord for which it would be reasonable to expect the tenant to require instructions. Such appliances and devices must also be listed in the residential tenancy agreement as a ‘domestic facility requiring instruction’.  If a tenant unintentionally causes damage to the premises or ancillary property as a result of the use of a ‘domestic facility requiring instruction’, the landlord is not entitled to compensation for the damage unless the domestic facility is listed in the residential tenancy agreement as a ‘domestic facility requiring instruction’ and the landlord has complied with its obligation to provide manuals and instructions in relation to the domestic facility.

Potential sale or sale of the residential premises

A landlord must advise prospective tenants if it has advertised or intends to advertise the premises for sale and of any existing sales agency agreement.  If the landlord does not comply with this obligation and then enters into a contract for sale within 2 months of the start of the residential tenancy agreement, the tenant may give notice to terminate the residential tenancy agreement.  A landlord must also give a residential tenant written notice of its intention to sell the premises within 14 days of entering into a sales agency agreement or deciding to make the premises available for inspection.  The premises must not be advertised for sale or made available for inspection until more than 14 days after the tenant has been given this notice.

Water supply charges

In the absence of an agreement as to water usage charges, where water is separately metered the landlord may recover all costs from the tenant, however, if water is not separately metered these charges must be borne by the landlord.

Termination of fixed term and other tenancies

A new section 83A has been inserted into the RT Act which allows a landlord to terminate a fixed term residential tenancy agreement at the end of the fixed term without specifying a ground of termination by giving a notice of termination to the tenant with a period of notice of at least 28 days.   A new section 86A has also been inserted which gives the tenant the same right. 

A new section 79A has been inserted into the RT Act which provides that if a residential tenancy agreement for a fixed term has not terminated before or at the end of the fixed term by notice of termination in accordance with sections 83A or 86A, the agreement continues as a periodic tenancy with a tenancy period equivalent to the interval between rental payment times and under the same terms (as applicable).

Further, a new section 92A has been inserted into the RT Act which provides that:

  • if a notice of termination has been given to a landlord or tenant; and
  • the tenant has not given up vacant possession of the premises within 1 month of the day on which they are required to do so; and
  • the landlord has not, within that period, applied to the Tribunal for an order for possession of the premises;

then the notice of termination is ineffectual and the residential tenancy will be taken not to have been terminated.

Residential tenancy databases

The RT Act now regulates residential tenancy databases, based on national model provisions. These databases contain information about an individual’s tenancy history.  The changes promote accuracy and quality and ensure that tenants can access listings and request corrections if required.

For more specific information on any of the material contained in this article please contact Lisa Hubbard on 08 8217 1369 or lhubbard@normans.com.au.



© Norman Waterhouse 2014. All Rights Reserved. You may not reproduce all or any part of this newsletter without our prior consent.
We respect your right to privacy. You can view our Privacy Information Notice on our website
The contents of this newsletter are for information only and
should not be taken as advice on the law

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