Increase to Minimum Wages and new Penalty Rates from 1 July 2017

Georgie Wakenshaw - Monday, July 17, 2017

 

3.3% increase to Minimum Wages and new Penalty Rates from 1 July 2017

 The Fair Work Commission has conducted its Annual Wage Review and the decision has been made to increase the minimum wage by 3.3 per cent.

The increase will apply from the first full pay period starting on or after 1 July 2017.

The 3.3 per cent increase applies to employees who are covered by an award and employees to whom the minimum wage applies.

The increase does not affect employees who are already getting paid more than the new minimum wage or above the new award rates.

Employers should also note that from 1 July 2017 certain penalty rate provisions in some awards for the hospitality, restaurant and retail industries will be varied.

The changes are different for each award, so they affect employers and employer differently depending on the award they are covered by.

For further information in relation to changes and how they affect your business, please contact Skye Engwerda and Zoe Broadbent.

 


Industrial and warehousing leases and the Retail Leases Act

Georgie Wakenshaw - Thursday, March 23, 2017


The recent decision in CB Cold Storage Pty Ltd v IMCC Group Pty Ltd [2017] VSC 23 (CB Cold Storage) could mean that landlords leasing premises to industrial or warehousing business in Victoria may no longer be able to recover land tax from a tenant and market rent reviews that do not allow the rent to decreased may be void.


Under the Retail Leases Act 2003 (Vic) (RLA) landlords are liable for the payment land tax and any provision of a retail lease that makes the tenant liable to pay land tax is void. There is also a prohibition against provisions in retail leases that do not allow for a decrease of rent after a market rent review.


Until recently, it has been commonly accepted that the RLA does not apply to industrial and warehousing leases. However, CB Cold Storage follows a line of recent cases which have the effect of broadening the application of the RLA. In CB Cold Storage, Croft J determined that the lease in question was in fact a retail lease and thus covered by the RLA. The tenant’s business in CB Cold Storage provided cold storage services to individuals and companies out of the landlord’s warehouse.


The decision in CB Cold Storage used the ‘ultimate consumer’ test to characterise the lease and after considering the nature of the services provided by the tenant to the ‘ultimate consumer or user’, the Supreme Court concluded that the Tenant’s business was ‘retail’.


Given this characterisation of the tenant’s business other industrial and warehousing leases could also be subject to the RLA. Parties cannot contract out of the RLA and its effect is retrospective from the start of the lease. Therefore a tenant may be entitled to be refunded any land tax or incorrect rent paid.


If you consider you may be affected as landlord or tenant by the CB Cold Storage case, please contact Cosgriff Lawyers on (03) 5480 6344.


Purchasing Your First Home

Georgie Wakenshaw - Wednesday, March 08, 2017


Purchasing Your First Home

It’s natural to be a little nervous when purchasing your first home. There’s no denying it’s a big commitment, but it doesn’t have to be daunting. You only buy your first home once and it’s something you’ve looked forward to for years so we think it should fun, exciting and rewarding.

Cosgriff Lawyers is here to guide you through the whole process and to make it as simple for you as possible. Here are a couple of incentives to help you get your first home sooner.

First Home Owner Grant

The First Home Owner Grant (FHOG) is a government initiative to help first homebuyers into the property market. It’s a genuine, one-time grant that never has to be repaid. In both Victoria and NSW, a FHOG of $10,000 may be available for first home buyers who are building or purchasing a new home, to the value of $750,000. This includes off the plan homes or newly built homes that have not been previously occupied.

You may qualify for the FHOG if you meet the following criteria:

  • 18 years old or over;
  • Australian citizen or permanent resident;
  • You are intending to live in the home for a continuous period of at least six months within 12 months of settlement;
  • You have never owned a residential property in any State or Territory in Australia;
  • Have never received a FHOG in any state or territory in Australia.

From 1 July 2017

In an attempt to boost entry into the housing market, the Victorian Government has just announced that it will increase the FHOG from $10,000 to $20,000 for first home buyers building their homes in regional Victoria. The increased Grant will apply to Contracts entered into from 1 July 2017 until 30 June 2020. The same eligibility criteria listed above apply.

Stamp Duty Concession

In Victoria, stamp duty concessions may also available for first home buyers for homes with a purchase price of up to $600,000 and in NSW stamp duty concessions may be available for first home buyers for homes with a purchase price of up to $650,000. The reduced stamp duty amount will depend on the purchase price.

From 1 July 2017

Further to increasing the FHOG to $20,000 the Victorian Government also announced that the stamp duty will be abolished for first home buyers of properties valued up to $600,000 providing a saving of up to $15,000. Duty will be phased in for properties valued between $600,001 to $750,000.

For more information on purchasing your first home please contact Zoe Broadbent at Cosgriff Lawyers on 5480 6344.

 


Bullying in the Workplace

Georgie Wakenshaw - Monday, March 06, 2017
Bullying in the Workplace (Now a Crime Punishable by up to 10 Years Imprisonment) – Employers Must Have a Bullying Policy in Place


What if I am being bullied?

Anyone can be subjected to bullying in the workplace, regardless of their position, salary or seniority.

The Fair Work Commission (FWC) have released an Anti-Bullying Benchbook and has provided the following examples of what constitutes bullying in the workplace:

  1. Belittling or humiliating comments;
  2. Spreading malicious rumours;
  3. Exclusion from work related events; and
  4. Unreasonable work expectations.

At Cosgriff Lawyers our employment lawyers can help you quickly and discretely put a stop to bullying and protect your rights if you are suffering from bullying.

What if I am accused of being a bully?

We also understand that sometimes an employer or employee can be unfairly accused of bullying for reasonable management actions or where there are personality clashes in the workplace.

If you are accused of bullying we can assist you work through the process in an effort to minimise conflict and issues with your employment.

What must all employers do?

At a bare minimum, employers must have a bullying policy in place and provide training to their employees around that policy.

We can draft the policy and attend at your workplace to provide training for your staff.

Bullying can expose employers to legal liability. There are a number of legal actions that can and are being brought against employers arising from workplace bullying. Examples of potential legal actions are:

  • claims for breach of the implied term of good faith in the contract of employment;
  • unfair dismissal claims;
  • unfair contract claims; and
  • criminal charges.

How can bullying be prevented in the workplace?

  • Performance reviews and feedback
  • Providing staff education as to what is and isn’t bullying
  • Early intervention and conducting an investigation into bullying if claims are being made.

Please call or email our office to make an appointment.


Superannuation Reforms

Georgie Wakenshaw - Tuesday, November 29, 2016

 

In October 2016 the Government released proposed reforms to superannuation legislation and regulations. If and once legislated, most measures will take effect from 1 July 2017.

Key changes to superannuation include the following:

  • Introduction of a $1.6 million superannuation transfer balance cap

There will be a $1.6 million transfer balance cap on the total amount of accumulated superannuation an individual can transfer into the tax-free retirement phase. Savings beyond this point can remain in an accumulation account where earnings are taxed at 15 per cent, or may be removed from superannuation.

  • Reduction of concessional superannuation contributions

The Government will reduce the annual cap on concessional superannuation contributions to $25,000. Concessional superannuation contributions are currently $30,000 for people under the age of 50 and $35,000 for people over the age of 50.

  • Introduction of the Low Income Superannuation Tax Offset (LISTO)

The LISTO effectively refunds the tax paid on concessional contributions by individuals with a taxable income of under $37,000. This will avoid situations where a low income earner pays more tax on contributions to superannuation than on their take home pay.

  • Allowing catch-up concessional contributions

From 1 July 2018, the Government will help people catch-up their superannuation contributions by allowing individuals with account balances of $500,000 or less to rollover unused concessional caps for up 5 years. This means that if a person does not make any concessional superannuation contributions in 2018-19, in 2019-20 they will be able to contribute $50,000 ($25,000 for 2018-19 and $25,000 for 2019-20).

For a full overview of the proposed changes to superannuation, please do not hesitate to contact Cosgriff Lawyers.


 


How many hours can your employees work in a week?

Georgie Wakenshaw - Monday, November 14, 2016

 

How many hours can your employees work in a week?

The National Employment Standards (NES) provide that the maximum weekly hours which a full time employee can be required to work is 38 hours per week, plus reasonable additional hours as required by the employer. If an employee is working reasonable additional hours, they are required to paid for these hours at the rate prescribed in the award, or pursuant to a written agreement between the employee and employer.

When determining whether additional hours are reasonable, the NES set outs a number of factors are to be considered.

The NES also provides the ability for an employer and an employee to enter into a written agreement regarding the averaging of hours over a maximum period of 26 weeks.

The Manufacturing and Associated Industries and Occupations Award 2010(Award) contains examples of the type of provisions relating to hours worked that are usually contained in modern awards.

A Manufacturing Industry Example

Ordinary hours: The ordinary hours for day workers (non-shift workers) are 38 hours per week but not exceeding 152 hours in 28 days. Ordinary hours may be worked Monday to Friday inclusive, although by an individual agreement the ordinary hours may include Saturday or Sunday. Where agreement is reached, the rate between midnight Friday and midnight on Saturday is time and a half and the rate between midnight on Saturday and midnight on Sunday is double time.

Overtime: If a day work works hours in addition to their ordinary hours, the overtime rate is time and a half for the first three hours and double time thereafter until the completion of the overtime work.

Work on public holiday: A day worker required to work on a public holiday must be paid for a minimum of three hours work at double time and a half.

Flexibility arrangement of ordinary working hours: The Award allows flexibility of ordinary working hours by agreement between an employer and an individual employee. The matters on which agreement may be reached include:
  • the duration and how the hours are to be averaged within a work cycle;
  • rosters that specify starting and finishing times of working hours;
  • a period of notice of a rostered day off (RDO) which is less than four weeks;
  • substitution or accumulation of RDOs and flexibility in arrangements around taking RDOs;
  • any arrangements of ordinary hours that exceed eight hours in any day.
 

Further, by agreement between an employer and the majority of employees, 12 hour days or shifts may be introduced subject to various factors such as ensuring proper health monitoring procedures being introduced and adequate breaks are provided to employees.


 


Verification of Identity

Georgie Wakenshaw - Thursday, October 27, 2016

 

Verification of Identity

Whether you are selling, purchasing or transferring a property in Victoria or New South Wales, it is mandatory for your lawyer to complete a verification of your identity prior to settlement.

How do I verify my identity?

You must have a face to face interview with your lawyer and provide original identity documents such as:

  • -Australian or foreign passport AND Drivers licence AND Marriage or Change of Name Certificate (if the names on those documents are different);
  • -Australian or foreign passport AND full Birth or Citizenship Certificate AND Medicare or Centrelink card AND Marriage or Change of Name Certificate (if the names on those documents are different)

If you are not able to attend your lawyer’s office you may be able to complete the verification of identity at a post office for a fee.

If your lawyer has any doubts that an identity document does not appear genuine, or a photograph on an identity document in a not a reasonable likeness then they will make further enquiries to verify your identity.

For example, Jack and Jill Jones have made an offer to purchase a house in Echuca for and the Vendor has accepted their offer. A Contract of Sale has been prepared and Jack and Jill go to see their lawyer for advice on the Contract of Sale. During the meeting, Jack provides his Australian passport and Driver’s Licence and Jill provides her Australian passport, Driver’s Licence and Marriage Certificate (as her surname on her passport is Smith). Their lawyer verifies their identity and the land transaction can proceed to settlement.

There is a risk that settlement may not proceed on the agreed date in the Contract of Sale if you have not completed a verification of identity.

Cosgriff Lawyers has a team of property lawyers who keep up-to-date on the latest developments relating to Land Transfers and Verification of Identity. If you are thinking of selling, purchasing or transferring a property, please do not hesitate to contact our office.

 


Stamp Duty Concessions and Taxation Concession on the Purchase of Primary Production Land

Georgie Wakenshaw - Friday, July 01, 2016

Stamp duty and tax are two important issues associated with purchasing farming land.

These costs eat into your equity, reduce the profitability of your investment and can affect whether or not your Bank will require you to purchase Lenders Mortgage Insurance.  Most farms are businesses and therefore will attract GST and significant stamp duty if the transaction is not structured properly.

For example, if you purchased a farm valued at $375,000.00, on three titles, all of equal size with water to the value of $50,000.00, including primary production goods of $25,000.00 then the duty chargeble will be $17,570.00 plus GST of $37,500.00.

However, if the transaction were to be structured carefully, the Stamp Duty could be reduced to as little as $7,947.00.  Depending on the circumstances GST may not be payable.  With these concessions, a saving of $47,123.00 is achieved.

This is achieved through a number of measures including;

  1. Disaggregation of Dutiable and Non-Dutiable Property;
  2. Valuation and aggregation of each parcel of land;
  3. Identification and valuation of Primary Production Goods (stock in trade); and
  4. The correct GST treatment of the transaction
The above exemptions are just a few of the possible scenarios which can apply in the sale and purchase of primary production land.  Each situation must be assessed on its own merits.

Cosgriff Lawyers has a team of property and agri-business lawyers who keep up-to-date on the latest developments relating to Primary Production tax and stamp duty concessions.  If you are thinking of selling or purchasing farmland, please do not hesitate to contact our office.


The Ombudsman is Ready for 1 July // Are You?

Georgie Wakenshaw - Friday, July 01, 2016

Changes to Modern Awards and minimum pay rates will take place from July 1 2016.

Fair Work Commission Announces 2.4% Wage Increase

The minimum pay rate under all Awards will increase by 2.4% from 1 July. The national minimum wage will also increase from 1 July to $672.70 per week or $17.70 per hour.

Whether employers are paying strictly in accordance with an Award or a higher flat rate or annual salary, it is important to review whether they are paying employees correctly taking into account the increase (or offsetting the increase against a flat rate of pay or annual salary).

Fair Work Ombudsman Launches Anonymous Reporting Function

Employees who do not want to provide their personal details can now make an anonymous report to the Ombudsman if they suspect they are being underpaid.

The Ombudsman believes this function will see an increase in the number of underpayment complaints including those by employers who are concerned that other businesses may be getting a competitive advantage by engaging in unlawful practices.

Over the past financial year, the Ombudsman has recovered more than $22.3 million in unpaid entitlements. In our experience, most local employers are paying a flat rate above that required by the relevant Award but do not have sufficient documentation in place offsetting overtime, allowances and leaving loading etc. This means employees can bring an underpayment of wages claim for overtime and allowances to be paid in addition to the higher flat rate or annual salary.



Family Law and Binding Financial Agreements

Georgie Wakenshaw - Monday, November 02, 2015

A Binding Financial Agreement made after the breakdown of marriage (section 90K of the Family Law Act 1975) or de facto relationship (section 90UM of the Family Law Act 1975) can deal with property and financial resources and maintenance. 

Clients are required to disclose all assets and liabilities they have at the time of entering into the financial agreement.  Both parties must seek independent legal advice and have their lawyer sign a certificate of independent legal advice. In the event that there is material change to your circumstances such as circumstances relating to the care, welfare and development of a child of your relationship, or that the agreement was obtained by fraud, the Binding Financial Agreement may be set aside. 
 
A recent case, F Firm & Ruane & Ors (2014) FLC 93-611 confirmed the Family Court’s jurisdiction to hear and determine a damages claim against a firm of solicitors who prepared a defective Financial Agreement. This appeal concerned the availability of the Family Court’s jurisdiction to determine a damages claim brought by the wife against her former solicitors and barrister as part of the property settlement proceedings. The suit had its foundation in an earlier finding that a financial agreement was not binding because the husband’s certificate of independent legal advice signed by a lawyer from the United Kingdom and not an ‘Australian Legal Practitioner’. The wife sought that her former solicitors pay her damages for an alleged breach of their duty of care. An application was brought by the wife’s former solicitors and barrister seeking that the proceedings against them be dismissed as being outside the Family Court’s jurisdiction. That application was dismissed which was the reason for the appeal in this case. 
 
The Full Court distinguished from a previous decision in Noll & Noll & Anor wherein the dismissal of an application by the husband to sue the wife’s former solicitors in litigation arising from a financial agreement was upheld and subsequently dismissed the appeal. Clients must also be aware that once a Binding Financial Agreement is in force, you forego your right to have your property entitlements determined by a Court.

 

Jim Cosgriff
Director
+61 5480 6344