On 8 February 2022, the Commissioner appealed Justice Loganâs decision on section 100A in Guardian AIT Pty Ltd ATF Australian Investment Trust v Commissioner of Taxation [2021] FCA 1619(Guardian) to the Full Court of the Federal Court of Australia. Over the past several years, section 100A of the Income Tax Assessment Act 1936 (Cth) has …
Continue reading “Will Guardian protect family trust distributions from attack by the ATO?”
Flexible working arrangements are certainly not new. However, the uptake of such arrangements was turbo charged with the emergence of the COVID-19 pandemic. The recent Productivity Commission Working from Home Research Paper (September 2021), shows that the percentage of Australians working from home jumped from 8% to 40% in the past two years. As such, …
Continue reading “Flexible Work Arrangements – Responding Flexibly”
Yesterday, the High Court published two decisions addressing the âcentral questionâ of whether the workers involved were contractors or employees.[1] The decisions could not have come at a better time. With the rise of unconventional contracting businesses like Uber, and companies often engaging individuals rather than a corporate entity with key personnel, the line between contractor and …
The NSW Department of Planning, Industry and Environment (Department), is in the process of introducing infrastructure contribution reforms, intended to simplify the system of contributions currently in place and provide greater transparency and consistency for key stakeholders, including local government, developers and landowners. In December 2020, the NSW Productivity Commissioner undertook a review of the …
Commercial contracts often provide mechanisms for parties to resolve disputes outside the orthodox court process. Parties will often include these alternative dispute resolution clauses for a range of reasons, but the underlying reasons usually include confidentiality concerns, cost or the need for expedient resolution of disputes. One such mechanism for dispute resolution is for the …
Continue reading “Arbitration agreements â is your dispute resolution clause enforceable?”
Under section 72 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act), the Queensland Building and Construction Commission (QBCC), is able to direct a person who carried out building work to rectify such work if it is defective or incomplete. The QBCC Act also sets out mechanisms regarding when a direction can …
Continue reading “Parliament Rectifies Problems with Directions to Rectify”
With the festive season upon us, members of the construction industry are looking forward to â and preparing for â a well-deserved break. For most projects, late December and early January means âtools downâ for an extended period (Shutdown Period), as many of us enjoy the festive season. So, what happens to the project during …
Continue reading “Tools down â What happens to construction projects during the holiday period?”
The Federal Government is boosting its compliance activity following the recent reforms to the Foreign Acquisitions and Takeovers Act 1975 (Cth) (the FATA). Specifically, the Foreign Investment Review Board (FIRB) and the Australian Taxation Office (ATO) (which administers FIRBâs functions in relation to residential land in particular) are actively seeking to identify acquisitions of Australian …
Continue reading “FIRB compliance audits: what to expect and how to respond”
One of the fundamental assumptions underpinning the interpretation of development approvals is that ambiguity in an approval should be construed in favour of the approval holder. A recent High Court authority seems to have chartered a course away from this previously settled principle. The Status Quo In the 1970 New South Wales Supreme Court decision …
Continue reading “A Fundamental Change to Interpreting Development Approvals?”
The Fair Work Commission (FWC) has found BHPâs COVID-19 vaccination mandate is not reasonable and lawful, but reached this decision based on its failure to consult on whether to implement the policy, rather than consultation on how to implement. The decision, which many expected would clear the way for mandatory COVID-19 policies, has instead delivered …
Continue reading “Road to mandatory VAX hits consultation roadblock”
A claim for misleading and deceptive conduct found within section 18 of the Australian Consumer Law[1] (ACL) is a frequently visited harbour for those wishing to navigate the seas of unfair commercial practices. Section 18(1) of the ACL provides: âA person must not, in trade or commerce, engage in conduct that is misleading or deceptive …
Two recent legal decisions have emphasised the importance of employers having an adequate workplace bullying policy or procedure and that a failure to have these in place (or having an inadequate policy or procedure), can have serious consequences. WHS prosecution for inadequate bullying policies or procedures On 1 October 2021, the Melbourne Magistrates Court convicted …
Continue reading “Bullying policies and responding to complaints: is your house in order?”
From 1 November 2021, employers need to ensure that their employee onboarding processes, payroll systems and contracts comply with the Governmentâs new super stapling requirements. These new rules are aimed at reducing the number of superannuation accounts that are established each time an employee commences a new role. What has changed? Under the current regime, …
Continue reading “Super Stapling â the new rules affecting employee onboarding processes”
Proposing and voting upon resolutions (and therefore making decisions) is an essential responsibility of any board of directors. Company boards must be able to definitively and efficiently make decisions regarding the affairs of a company. However, the procedure for passing resolutions is subject to strict legal requirements aimed at the maintenance of good corporate governance. …
Continue reading “Too little, too late? Passing a last-minute resolution of directors”
A sigh of relief for Australian companies In August, the Federal Government passed legislation allowing companies to electronically execute documents (including deeds) under section 127 of the Corporations Act. The Treasury Laws Amendment (2021 Measures No 1) Act 2021 (Act) was enacted on 14 August 2021 to temporarily amend the Corporations Act 2001 (Corporations Act) until 31 March 2022. …
This weekâs decision of the Full Bench of the Fair Work Commission in Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015 has hit the headlines, primarily due to comments in the dissenting opinion of Deputy President Dean regarding mandatory COVID-19 vaccinations. Despite the hype, it is of course the decision of …
The Australian Government has taken the first step towards the development of a new offshore renewable energy industry through the introduction of the Offshore Electricity Infrastructure Bill 2021. This Bill provides a regulatory framework to support the construction, installation, commissioning, operation, maintenance and decommissioning of electricity transmission and renewable energy infrastructure in the Commonwealth offshore …
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In recent years, employers have grappled with the concept of who is a âcasual employeeâ for the purposes of the Fair Work Act 2009 (Cth) (FW Act). Following a lengthy legal process, the High Court has provided clarity in WorkPac Pty Ltd v Rossato & Ors [2021] HCA 23. In finding that Mr Rossato was …
The High Court provided welcome clarification in the casual employment debate on Wednesday 4 August. It has overturned the Full Court of the Federal Courtâs findings that Mr Rossato was not a casual employee and was due permanent employment entitlements. The Full Court of the Federal Courtâs decision had been a cause of significant concern …
Continue reading “High Court fixes casual employment uncertainty”
