Published in Employment and Workplace advice on 21st Nov 2021

It is therefore timely to remind employers which of these additional payments will attract superannuation contributions. Employers must contribute 10% (10.5% from 1 July 2022) of an employee's "ordinary time earnings" (“OTEs”) into their chosen superannuation fund.  The test of whether any additional payments attract the obligation to make a superannuation contribution will therefore turn on whether such payments are considered "ordinary time earnings". Ordinary Time Earnings To determine an employee’s OTEs, an employer should first check the applicable employment agreement and/or Award or enterprise agreement. These documents will often specify set ordinary hours of work. If...

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Published in Commercial Agreements on 21st Nov 2021

What constitutes a small business? The legislation defines a small business as a business that employs less than 20 employees. The definition includes all full-time, part-time and even casual employees if they are engaged on a regular basis. What is a standard form contract? Several factors need to be taken into account in determining if a contract is standard form. Generally, standard form contracts are those which contain standardised and non-negotiated terms, are prepared by one party prior to entering into the transaction and are offered on a ‘take it or leave it’ basis.  Contracts will be presumed to be standard form unless a party proves otherwise. Examples of comm...

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Published in Corporate & Commercial on 20th Apr 2016

Accessing Preferential Tariffs Only those goods which “originate” in either China or Australia will be able to qualify for preferential tariff treatment under the ChAFTA. Goods will be considered “originating” if: they are wholly obtained or produced from wholly obtained goods in China or Australia; or they are produced entirely in China or Australia from materials classified as ‘originating’; or they are produced in China or Australia using inputs from other countries which meet the Product Specific Rules. Wholly obtained goods typically include goods that are sourced directly from natural resources including live plant and animal products, minerals and naturally o...

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Published in Corporate & Commercial on 13th Apr 2016

Is the Foreign Company ‘Carrying on Business’? Foreign companies that do not meet the ‘carrying on business’ threshold in section 21(2) of the Act may not need to register. It is therefore necessary to consider the specific nature of your intended Australian business activities. At common law, courts have interpreted the threshold as a ‘systematic and regular carrying on of business with a view to profit.’ Foreign companies that merely seek to invest funds, collect debts or hold property will generally not be required to register.     Registration If a foreign company is deemed to be ‘carrying on business,’ it is required to register with ASIC in the prosc...

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Published in Technology and Intellectual Property on 24th Aug 2015

  Can I use that cat image? Just because an image is publically available on the internet, does not mean it is free.  In fact, unless there is a clear statement to the contrary, you should always assume that material found on the internet is copyright protected and therefore requires the owner’s permission in order to be used.  This is further complicated by the fact that the image may have been displaced several times and the site on which you have found it may not even have the rights to it. Many believe they can avoid a claim for copyright infringement by merely attributing the work to the source on which they found it with a “shoutout” or link back. Unfortunatel...

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Published in Corporate & Commercial on 10th Aug 2015

Can a binding agreement be created over email? In the recent decision of Stellard Pty Ltd v North Queensland Fuel Pty Ltd, The Supreme Court of Queensland held that a binding contract of sale existed where parties had communicated via email and intended to later enter into a written agreement.  Stellard Pty Ltd v North Queensland Fuel Pty Ltd North Queensland Fuel (NQF) and Stellard negotiated via email for the purchase of a petrol station. Stellard sent an email to NQF containing the terms of their purchase offer. Notably, a follow up email from Stellard stated “this offer is of course subject to contract” and “[we] need acceptance of our offer immediately so we are in a pos...

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Published in Employment and Workplace advice on 3rd Dec 2013

Who is eligible to make an application? A new section will be inserted in to the Fair Work Act 2009 (“the Act”) to extend the definition of “worker” to include employees, contractors, subcontractors, outworkers, apprentices, trainees, volunteers and students gaining work experience. When is a worker “bullied” at work? The new laws will provide that a worker is bullied at work if another individual, or group of individuals, repeatedly behaves unreasonably towards the worker, and that behaviour creates a risk to health and safety.  The implications of this definition are: The behaviour has to be repeated and there must be a “persistent nature” to it. This means that a...

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Published in Employment and Workplace advice on 3rd Apr 2013

The case law suggests that the relevant test is whether there is a “sufficient nexus” between the employee’s actions and their employment. In any event, it is difficult to discern any predictive principles as each situation will be assessed on a case-by-case basis. This article will provide an overview of cases that illustrate this issue in practice. Public Employment Office Department of Attorney General & Justice v Silling [2012] NSWIRComm 118 Mr Silling was employed as a corrections officer by the Department of Corrective Services. Mr Silling was dismissed after his third conviction for domestic violence. After the first conviction in 1998, Mr Silling received an official w...

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Published in Employment and Workplace advice on 25th Mar 2013

Requests to work from home Section 65 of the Fair Work Act 2009 (“the FWA”) allows an employee who is a parent or who cares for a child to request a change in working arrangements where the child is under school age. However, an employer may refuse the request on “reasonable business grounds”. Furthermore, an employee may only request to work from home if they have served a minimum period of 12 months of employment service. The FWA does not define “reasonable business grounds”, however a number of factors may be considered, including: whether the work is required to be carried out “on-site”; the effect that the arrangement may have on the employer’s business; the...

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Published in Employment and Workplace advice on 13th Jul 2012

Facts Mr Symes was a long-term employee at Armaguard, who had worked his way up to the position of a crew leader. His duties included transporting cash to and from clients’ premises and servicing ATMs. After suffering a workplace injury, he was effectively demoted and placed on light duties pending his full recovery. He was informed that, due to the amount of time it was taking Mr Symes to do his runs he would remain in this position until his performance improved. At one of Armaguard’s regular monthly staff meetings, Mr Symes was informed that he had been allocated a vehicle with a faulty indicator. Frustrated and angry that this would cause delay in his work duties, Mr Symes told h...

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Published in Competition and Consumer Law on 26th Mar 2012

Background Mercland Investment Group (“Mercland”) entered into a Contract of Sale with Duncalm Pty Ltd (“Duncalm”) for the purchase of a parcel of land comprising a petrol station and a variety of fast-food outlets (“the Service Centre”). Before its sale Duncalm engaged engineers to advise on the design of the car parks and driveways. Not all the specifications stipulated in the designs were followed. In fact, inferior materials and construction methods were used to cut down on costs. This made the pavements more susceptible to damage and caused the concrete to break upon pressure. The decision to construct the car parks and driveways in this way rendered them unsuitable for...

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Published in Corporate & Commercial on 26th Sep 2011

Background Luxottica Retail Australia Pty Ltd (“Luxottica”) owns subsidiaries such as OPSM and Budget Eyewear and deals in eye-wear and eye-care. Luxottica, and its subsidiaries, promoted the sale of frames for glasses at a discount on the condition that the customers purchase the lenses that fit the frames at full price. Under the Act the supply of lenses is considered a GST-free supply while the supply of a frame is considered a taxable supply. A dispute arose as to the correct application of GST on the promotion. The inherent circularity of section 9-80 Section 9-80 of the Act contains the equation used to determine the GST payable on mixed-supplies; that is supplies that contai...

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Published in Employment and Workplace advice on 3rd Jun 2011

Dubbed "Brodie's Law", the Bill has now passed both Houses of the Victorian Parliament and will take effect in early June 2011. What has changed? Workplace bullies will now be dealt with under the criminal law. The Bill extends the definition “stalking” in the Crimes Act 1958 (Vic), the Stalking Intervention Orders Act 2008 (Vic) and the Personal Safety Intervention Orders Act 2010 (Vic) to include the following behaviours that are typical of workplace bullying: making threats to the victim; using abusive or offensive words to or in the presence of the victim; performing abusive or offensive acts in the presence of the victim; directing abusive or offensive acts towards the vic...

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Published in Migration on 30th May 2011

The laws and processes surrounding migration are complex and require careful consideration and a depth of understanding. Zelma Rudstein, partner of Rudstein Kron Lawyers, has thorough knowledge of the latest visa and migration laws and regulations, and can expertly guide you through the process from beginning to end, including providing detailed advice, preparing application forms, supporting documents and submissions and lodging applications. She has been helping people to achieve their goal of living permanently in Australia since 1993. Zelma is a qualified practising lawyer and a registered Migration Agent (MARN 9301002). She adheres to the Migration Agents Registration Authority's Cod...

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