The Fair Work Act and Casual Employees
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
The distinction between casuals and permanents has long been a vexed issue in employment law, particularly for employers. Frequently, employers think they have engaged a person as a ‘casual’ when in fact they are a permanent part-time employee. An error of classification can have significant financial consequences, at least in part because permanent part time employees have a range of entitlements that are not available to casuals; including parental leave, annual leave, and redundancy pay.
The Full Bench of the Fair Work Commission recently dealt with that issue in relation to a group of unionised workers who were engaged on a construction project in Queensland, which came to an end. Their union claimed they were entitled to redundancy payments when the jobs ended. The employer said they were casuals and therefore not entitled. The workers were successful at first instance but not on appeal. Read the rest of this entry »
ATO contacting employers regarding superannuation changes applying from 1 July 2013
Mark Sullivan is a Director at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law
Over 850,000 Australian business owners are in the process of receiving advice on new superannuation obligations from the ATO to ensure they are adequately prepared for changes to superannuation.
From 1 July 2013 employers must:
- increase the minimum rate for super guarantee payments on behalf of their employees from nine to 9.25 per cent; and
- start making super guarantee contributions for employees aged 70 years and over with the removal of the existing upper age limit.
These are the first part of changes to be implemented over a 6 year period. In superannuation law, change remains the constant.
Mark Sullivan is a Director at Mullane & Lindsay, and practises extensively in Family, Relationship and Matrimonial Law. If you require any assistance in this area please contact Mark Sullivan to arrange a consultation or contact our Newcastle office.
A Father’s Promise to his Son – The Sequel
David Gawthorne is a Senior Solicitor at Mullane & Lindsay in Newcastle and an Accredited Specialist in Family, Relationship and Matrimonial Law
We previously outlined the Family Law case of Hampton & Farley, in which the Family Court made good on a farmer’s promise to his son that “the farm” would be the son’s “one day”. There has since been another reported Family Court case of Daymond & Daymond, in which the wife sought a Family Law property settlement and claimed upon the husband’s share of a business, co-owned by his brother. The son of the husband and wife claimed that the husband and the son’s uncle held the business in trust for the son, due to assurances given years earlier that the son would take over the business after a period of working for them.
The judge held that the promises made to the son about what he would receive were too vague to establish that the son had suffered any detriment in reliance upon them, as at the date of the trial. The son’s claim therefore failed and the judge proceeded to determine the property settlement on the basis that the father and uncle remained the absolute owners of the business.
Hampton & Farley involved similarly vague promises by a father to his son, which similarly caused the son to work on a family farm that was vaguely defined, for an uncertain beneficial interest at an indeterminate future time. Yet, in that case, the son succeeded. Such varied outcomes further highlight the need for family members to formalise business relationships, including as to what might happen if related spouses separate.
David Gawthorne is a Senior Solicitor at Mullane & Lindsay, and practises extensively in Family, Relationship and Matrimonial Law. If you require any assistance in this area please contact David Gawthorne to arrange a consultation or contact our Newcastle office.
Parents versus Grandparents
Mark Sullivan is a Director at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law
Sadly, there are often disputes in our Family Court and Federal Circuit Courts between parents and grandparents over the care of children. Usually a parent’s ability to provide proper care for children due to mental illness, drugs or alcohol problems has necessitated grandparents stepping in to provide a safety net. Such problems are often ongoing and children become settled in the care of their grandparents. Distrust and anxiety can follow a parent’s rehabilitation and this can lead to a dispute between parents and grandparents as to the future care and parenting arrangements for children.
I remember the 1980’s when case law confirmed what I thought should have been the self evident. The best interests of the child trumped public perceptions that there was a legal presumption preferring birth parents over other significant persons who needed to undertake that role, such as grandparents in custody disputes. Read the rest of this entry »
Directors Duty To Prevent Insolvent Trading
by Kristy Nunn
Kristy Nunn is a Associate Director at Mullane & Lindsay in Newcastle and practices in our Dispute Resolution and Litigation Team.
A director of a company has a positive duty to prevent the company from trading whilst insolvent. Generally, a company is insolvent if it is unable to pay all its debts when they fall due. Determining whether a company is insolvent predominantly involves applying a cash flow test. This requires realistically assessing whether the company’s anticipated current future cash flows will be sufficient to enable the current and future liability to be paid as and when they fall due.
A director will contravene their duty if the company incurs a debt at a time when it was insolvent, or became insolvent by incurring the debt, and at that time there were reasonable grounds for the director to suspect that the company was insolvent, or would become insolvent as the case may be. Read the rest of this entry »
Work Out Your Defence Quickly- Or It May Be Too Late
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
The NSW Court of Appeal recently dealt with a case in which a surveyor, which had admitted liability and consented to judgment being entered against it, later sought to amend its defence (which was only as to the proper amount payable) to allege other parties were partially responsible for the loss. Briefly, the surveyor negligently recorded some height level relating to the construction of two properties at One Mile Beach. The owners, the plaintiffs suffered significant costs in rectifying and rebuilding the structures. The surveyor belatedly tried to argue that both the plaintiffs themselves, the builder, and other parties, should bear a proportion of the losses.
The Court rejected the surveyor’s bid on two grounds. Firstly, because having consented to the entry of judgment against it, it held the surveyor could not raise a defence that was inconsistent with the judgment, without the judgment being set aside. Secondly, because there was such delay on the part of the surveyor in raising the issue that there would be real prejudice to the plaintiffs if a change of position was permitted. Associated with that proposition, was the argument that if the surveyor really thought the builder (or others) was responsible, there was nothing to prevent it commencing separate proceedings against those other parties in due course.