Norman Waterhouse
   
Norman Waterhouse

 

 

Normans Briefly

In this issue

Welcome to the March edition of our Local Government Briefly.

Norman Waterhouse Lawyers has again been named one of two First Tier firms in environment and planning law in South Australia by the Doyle's Guide.

Click here for more information.

>   Walking the Talk – Less than 2 weeks to go – Don’t miss out!
>   Employment – The age-old question: independent contractor or employee?
>   Property, Infrastructure & Development – Amendments to the Residential Tenancies Act 1995(SA)
>   Environment and Planning – Demolition contractors convicted and fined for tree removal
>   Local Government – A new State Parliament, but where do the old Bills go?
>   Town Planning – Consideration of ‘bulky goods outlet’ and ‘junk yard’ definitions
>   Certificate IV Local Government (Regulatory Services)
>   Diploma in Local Government (Rates)

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 – 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.



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Environment and Planning – Demolition contractors convicted and fined for tree removal

The Norman Waterhouse Environment and Planning team recently represented the Corporation of the City of Norwood, Payneham & St Peters in a prosecution for the unlawful removal of a regulated tree.

The owner of the land sought development approval to demolish buildings on land previously used as a nursing home and replace them with a new development. The Council had granted development approval for stage 1 – demolition of the existing nursing home. The tree was to be retained as part of the redevelopment.

Demolition contractors were engaged by the owners to clear all buildings and vegetation from the land (including the subject tree). Prior to carrying out the demolition works and the removal of the tree, the demolition contractors did not sight any approved plans or documents, nor did they make any enquiries as to the existence of any development approval or any regulated trees on the land.

The Court convicted and fined the demolition company and the employee of the demolition company who carried out the demolition work and the removal of the subject tree.   The employee was fined $8,000 which was reduced by 20% on account of his early guilty plea. The Court also took into account the fact that the employee did not cooperate with the Council in its investigations and that he had a prior conviction for an environmental offence.

The demolition company received a fine of $3,600 reduced by 40% as a result of its contrition, early guilty plea and cooperation with the Council. The sole director and secretary of the company was not convicted but was fined $600 taking into account that while she did not have a day to day role in the running of the company, the Court considered she should bear some responsibility.

In sentencing the defendants, the Court said that their collective conduct was negligent and “where individuals are involved in the business of demolition it is incumbent upon them to do more than merely accept demolition instructions. It is incumbent upon them to go further and insist on seeing appropriate demolition authorisations.” The Court also remarked that in offences of this kind general and specific deterrence is important given the difficulty in detecting such offences.

Although the Court did not view the defendants in the same fashion as tree loppers – who have previously been referred to by the Court in other tree removal prosecutions as “quasi-gate keepers” of regulated trees – the penalties imposed serve as a reminder that anyone who plays a role in unlawful tree removal may face punishment.

The defendants were also ordered to pay the Council’s legal costs.

Please contact us if you are considering legal action in relation the removal of a regulated tree within your council area, or, indeed any legal action concerning the Development Act 1993.

For more specific information on any of the material contained in this article please contact Jacqueline Plant on 08 8210 1230 or jplant@normans.com.au.



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Local Government – A new State Parliament, but where do the old Bills go?

Local Government is created and controlled by State Parliament, and so naturally each four-yearly reconfiguration of the Parliament has an impact upon Local Government. However, aside from the various policy implications of having new faces and new political dynamics within the Houses of Parliament, there also are ramifications in the ‘lapsing’ of Bills.

When an election occurs, one ‘Parliament’ ends and a new Parliament begins. We have recently seen the 52nd Parliament of South Australia end, giving way to the newly elected 53rd Parliament. To a large extent, a new Parliament is not bound by the proceedings which had occurred in the previous Parliament. As a part of this principle, the various Bills which were under consideration in the previous Parliament lapse.

Several lapsed Bills were set to have had an impact on Local Government, had they been passed by the previous Parliament. The Housing Improvement Bill 2013 (which sought to wholly replace the Housing Improvement Act 1940) was a Government sponsored Bill which was never debated and is now consigned to history. Various Private Members’ Bills have also lapsed, including the Local Government (Waste Collection) Amendment Bill 2013 and the Local Government (Burning of Olive Material) Amendment Bill 2012, neither of which were ever debated.

Some Bills which were set to have an impact only on certain specific Councils have also now expired. For example, the Government’s South East Drainage System Operation and Management Bill 2012 has now lapsed. So too has the Local Government (Road Closures – 1934 Act) Amendment Bill, a Private Member’s Bill which had particular application to the City of Adelaide.

There is nothing preventing the introduction of a Bill in the new Parliament which is substantially similar to a Bill of the previous Parliament. However, the reintroduction of old subject matter will nevertheless require new debate and new consideration by a new Parliament.

For more specific information on any of the material contained in this article please contact Dale Mazzachi on 8210 1221 or dmazzachi@normans.com.au.



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Town Planning – Consideration of ‘bulky goods outlet’ and ‘junk yard’ definitions

The ERD Court recently handed down two decisions which clarified the scope of two land use definitions which are commonly encountered by planners and compliance officers.

Amberich Pty Ltd v City of Mount Gambier [2014] SAERDC 7 – Junk Yards

Amberich Pty Ltd (the appellant) applied for development approval to use the land for “Temporary parking of 6 loaded trailers – 12 months”. The (unregistered) trailers were to contain salvage materials which were stored in the open on the land. The City of Mount Gambier determined that the development was for a ‘junk yard’, which was a non-complying development in the Light Industry and Industry (Enterprise) Zones. Amberich appealed.

The trailers were intended for sale through the salvage yard once their role as salvage receptacles has ended. The Appellant stated that such trailers can be sold and re-used as sheds, and that the use of the land as a salvage yard included the use of four trailers, with their wheels removed, as sheds.  On this basis the trailers were also salvage items in their own right.

Her Honour Judge Cole held that the proposed use of the land came within any reasonable definition of a “junk yard”.

In the absence of a definition under the Act, Her Honour turned to the dictionary definition of ‘junk yard’, being ‘an open air place where junk is stored’. The trailers were considered receptacles for the storage of salvage materials, and not vehicles which were merely stored on the land.

In addition, Her Honour also considered that the proposed use fell within the definition of ‘junk yard’ which appeared in Schedule 1 of the Development Regulations until 1999:

“... land used for the collection, storage, abandonment or sale of scrap metals, wastepaper, bottles or other scrap materials or goods, or for the collecting, dismantling, storage, salvaging or abandonment or automobiles or other vehicles or machinery or the sale or other disposal of their parts.”

Kipa Freeholds Pty Ltd v City of Tea Tree Gully [2014] SAERDC 8 – Bulky Goods Outlets

Kipa Freeholds Pty Ltd appealed against a decision of the City of Tea Tree Gully to grant development plan consent to Coles Group Property Development Ltd for a proposed First Choice liquor store development which involved a change of use from an office and retail showroom to a retail liquor outlet. The land was primarily within the Regional Centre Zone, which envisaged bulky goods outlets (amongst other uses).

His Honour Judge Costello, Commissioner Green and Commissioner Hamnett held that the proposed retail liquor outlet (which primarily sells alcohol) was not a bulky goods outlet.

Based on the definitions in the Development Regulations 2008, bulky goods outlets are a kind of shop which primarily sells products other than ‘foodstuffs.’ However, the term ‘foodstuffs’ is not defined.

The Court considered the types of goods offered at bulky goods outlets. It determined that these are more likely to be:

  • larger-sized;
  • purchased as a part of a special or single purpose trip, as opposed to a convenience or day to day shopping trip;
  • difficult to move after purchase (typically with the aid of a vehicle), and require more space to display;
  • commonly found in premises with large floor areas and dedicated loading facilities; and
  • often located at the periphery of centre zones.

Such goods would not ordinarily be found in the core of the centre where a range of specialty type shops selling convenience type products may be expected to be located.

Conversely, food and drink is commonly retailed, and often located in the core of centres “as part of the overall convenience shopping experience”. In particular, alcohol is sold traditionally from bottle shops, with their more limited ranges and smaller floor plates.

The Court concluded that a retail liquor store which primarily sells alcohol[ic beverages] does not fall within the definition of a ‘bulky goods outlet’.  It held that ‘foodstuffs’ include alcoholic beverages, at least as that term is used in the definition of ‘bulky goods outlet’.

Although the Court was referred to the relevant authorities which, in our respectful opinion, support the contrary position (that alcoholic beverages are neither foods nor foodstuffs), the Court held that these cases considered different statutory regimes and were ultimately unhelpful.  The cases included Van der Feltz v City of Stirling (2009) 167 LGERA 236 (coffee is not “food” in a town planning context) and Bristol-Myers Co Pty Ltd v Commissioner of Taxation (1990) 23 FCR 126 (Sustagen Gold is a beverage and also a food, but tea is not a food because it is not nutritious and is a stimulant), and may have included Diet Tea Co Ltd v Attorney-General (1986) 2 NZLR 693 (in its natural and ordinary meaning, the word "food" did not include tea); Sainsbury v Saunders (1918) 88 LKJB 441 (tea is not nutritious, you cannot live on it; it is not food, but not merely because it is a beverage); Hinde v Allmond (1918) 87 LKJB 893 (food is something taken into the system as nourishment not mere stimulant; tea is not food).

Despite its finding that the liquor store was not a bulky goods outlet, the Court nevertheless accepted that it would be a ‘large format’ store and would be a ‘destination outlet’ which would draw shoppers with vehicles (rather than pedestrians who might walk on to other parts of the Zone, across an arterial road).  In that sense it would perform and function similarly to a bulky goods outlet and was an appropriate use in context (and would also have a similar parking demand to bulky goods outlets).

Thoughts for councils

The above cases demonstrate that properly determining the land use for a proposed development can be a difficult and complex task. Not only does an incorrectly determined land use impact the nature and categorisation of a development (and may invite appeals and judicial review action), it can also lead to issues later on with compliance and enforcement.

It is crucial that the nature of a proposed land use be correctly determined once a development application is lodged. Councils should seek advice as soon as possible if there are doubts about a proposed land use. This will help to avoid ‘going down the wrong path’ at an early stage, and help with the statutory timeframes for assessing applications under Regulation 41 of the Development Regulations 2008.

For more specific information on any of the material contained in this article please contact John Watson on 8210 1245 or jwatson@normans.com.au.



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Certificate IV Local Government (Regulatory Services)

The delivery of a 2 ½ day intensive of the specialist stream units for the Certificate IV in Local Government Regulatory Services is scheduled to commence here at Norman Waterhouse Lawyers on Wednesday 21st May 2014

“This course is ideal for employees who enforce legislation in areas such as environmental compliance, food safety, parking control as well as those involved in facilities and animal control”.

Please click here to view the flyer about the course and the subjects currently on offer which include “Investigate alleged breaches of legislation and prepare documentation” and “Provide evidence in court”.  The presenters for the subjects include Paul Kelly, Partner Local Government Governance and Regulatory Services and Dale Mazzachi, Senior Associate Local Government Governance and Regulatory Services.

Enrolment cut off for course is fast approaching – 7th May 2014.

To secure your enrolment, please contact Municipal Training on 8227 2296.



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Diploma in Local Government (Rates)

The first of the 2014 specialist stream units for the Diploma in Local Government (Rates) is scheduled to commence here at Norman Waterhouse Lawyers on Wednesday 30th April 2014.

“This is a high level course developed specifically for rating officers (or prospective rating/ administrative officers) and staff providing a supporting role to the rating functions at council”.

Please click here to view a copy of a flyer about the course and the subjects currently on offer that include “Assist customers with rate enquiries” and “Implement debt recovery procedures”.  The presenters for the subjects include Felice D’Agostino, Partner Local Government Governance and Regulatory Services.

Enrolment cut off for these subjects is fast approaching – 9th April 2014.

To secure your enrolment, please contact Municipal Training on 8227 2296.



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