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
+61 5480 6344

A restatement of the principle ‘buyer beware’

Cosgriff Lawyer - Friday, October 23, 2015

A restatement of the principle ‘buyer beware’

A decision of the Supreme Court of South Australia has highlighted the importance of purchasers making complete inquiries before entering into a Contract of Sale. This case also illustrates the risks involved with allowing a third party agent to negotiate aspects of a sale on behalf of a vendor.

The case of Pirie Street Stage 1 Pty Ltd v Trotman & Anor and Stewart involved an off the plan purchase which went awry. After the purchaser failed to settle the contract on the date due for settlement (which was some two years after the contract was entered into), the vendor issued proceedings for loss and damage. By counterclaim, the purchasers alleged that representations had been made to them as to the commercial viability of the transaction by a mortgage broker. As is the common trend in the industry, the developer had touted its project to the mortgage broker, who in turn, it was alleged, spruiked the project as a great investment opportunity to the purchaser. It was further alleged that these representations made by the broker were false, misleading and constituted an inducement into the contract by the vendor. The mortgage broker was also joined to the proceedings.

In its ruling, the Court drew a distinction between a “selling agent” and a “direct agent”, or, a mouth piece of the vendor. It was ruled that no party really the had the intention of binding the vendor to the representations made by the mortgage broker. The case may have been decided differently if the vendor had a closer relationship to the broker and intended (or was deemed to have intended) to be bound by representation made on its behalf. As to the alleged misrepresentations, the Court held that these statements constituted puffery (i.e. not to something to be taken seriously) and were not intended to be relied upon. If the representations were more precise and substantial, the case that they formed part of the contract of sale may have been stronger.

Whilst the current litigious trend is to issue proceedings for misleading and deceptive conduct in such circumstances, this case highlights the importance of properly documenting all contractual terms prior to signing. This is particularly important were representations are made by a third party agent who is not a party to the contract.

If you would like to discuss any of the issues raised by this case or the principles more generally, please contact Jack Hobbs of our litigation and property department.

National Minimum Wage Increase

Cosgriff Lawyer - Wednesday, June 04, 2014

The Fair Work Commission Minimum Wage Panel today awarded a 3% increase to the national minimum wage. The new minimum wage of $640.90 per week or $16.87 per hour will be effective from 1 July 2014.

This will see a full time employee working a 38 hour week receive an increase of $18.70 per week (or 50 cents per hour).

The Commission noted that the increase in the superannuation guarantee to take effect from 1 July 2014 had a moderating impact on its decision to increase the minimum wage.

It is important the employers seek advice as to the applicability or implementation of the increase. All too often employers are under the misguided belief that they “pay above the award” and wage increases don’t affect them.

For further information or advice, please contact Skye Engwerda on (03) 5480 6344 or by email at

Restaurant employees take a Sunday Pay Cut

Cosgriff Lawyer - Thursday, May 15, 2014

A majority of the Fair Work Commission full bench yesterday reduced Sunday penalty rates for employees covered by the Restaurant Industry 2010 from 175% to 150% to take effect from 1 July this year.

In its decision the majority said "… Although a 50% Sunday penalty rate is generally appropriate for employees under the Restaurant Award, for transient and lower-skilled casual employees working mainly on weekends, who are primarily younger workers, the superimposition of the casual loading of 25% in addition to the 50% penalty tends to overcompensate them for working on Sundays and is more than is required to attract them for work on that day."

New Road Safety Remuneration Order

Cosgriff Lawyer - Monday, May 05, 2014

On 17 December 2013 the Road Safety Remuneration Tribunal made its first road safety remuneration order - ‘The Road Transport and Distribution and Long Distance Operations Road Safety Remuneration Order 2014’ (the ‘RSR Order’).

The RSR Order takes effect from 1 May 2014 and will have significant implications for all businesses operating in the long distance road transport industry and the road transport industry generally relating to transfer of goods destined for sale or hire by a supermarket chain.

Despite the reference to remuneration, the RSR Order does not deal with rates of pay. It does however impose a variety of obligations including:

  • Written ‘driver’ employment contracts;
  • Supply chain contracts;
  • Safe Driving Plans;
  • WHS training;
  • Drug & Alcohol policies;
  • Drug & Alcohol training;
  • Terms of payment;
  • Record keeping requirements; and
  • ‘Whistleblower’ protections.

For further information as to whether the RSR Order applies to your business and if so, what steps you should take, please contact Skye Engwerda on (03) 5480 6344 or by email

Retail Leases - New Disclosure Statements

Cosgriff Lawyer - Thursday, September 12, 2013

The Retail Leases Regulations 2013 (Vic) came into effect on 22 April 2013.

The most significant effect of the new Regulations was to replace the multi-purpose Disclosure Statement with four separate Disclosure Statements.Landlords now have to select the most appropriate Disclosure Statement, depending on whether the Lease relates to:

  • shopping centre premises;
  • non-shopping centre premises;
  • a renewal of a retail lease; or
  • an assignment of a retail lease where there is an ongoing business (to be given by the outgoing tenant to the incoming tenant).

There are serious consequences where a Disclosure Statement is not provided including the tenant being able to terminate the Lease.

For further information or assistance in preparing the correct Disclosure Statement please communicate with Jim Cosgriff or Skye Engwerda.

Property Update

Cosgriff Lawyer - Monday, September 02, 2013

First Home Buyers in Victoria and New South Wales

From 1 July 2013 the Victorian government increased the First Home Owner Grant from $7,000.00 to $10,000.00. The Grant is only available to first home buyers who are purchasing a new home, that is, a home that has not previously been occupied as a residence, or vacant land upon which a new home is to be built.

The restriction of the availability of the First Home Owner Grant to first home buyers purchasing a new home or vacant land has already been in place in New South Wales although the Grant is $15,000.00. The Grant was to be reduced to $10,000.00 from 1 January 2014 however the New South Wales government has recently announced that the Grant will instead decrease to $10,000.00 from 1 January 2016.

Fire Services Property Levy

The Fire Services Property Levy has been incorporated into your council rates in Victoria from 1 July 2013 as a replacement to the previous insurance based levy. The value of the levy depends upon a variety of factors such as the location, type and value of your property.

Further information on the levy, including a tool to estimate the value of the levy imposed on your property, is available at

Swimming Pools

In an effort to reduced child drownings in household swimming pools, the recently introduced Swimming Pools (Amendment) Act 2012 requires all homeowners in New South Wales to register their pool or spa online prior to 29 October 2013. Failure to do so may result in a fine. Registrations can be completed at and the website provides checklists based on the type of property and pool or spa to enable homeowners to independently assess whether their pool or spa meets the standard safety regulations. If you are purchasing a property in New South Wales which has a pool or spa prior to 29 October 2013 you may check the register to determine whether the pool or spa has already been registered.

Councils will also be required to have implemented an inspection program by 29 October 2013 and to compile reports on levels of compliance with the safety regulations.

Homeowners looking to sell or lease their property from 1 April 2014 will also be required to provide a compliance certificate issued by their local council certifying that the council’s inspection has found the pool to be compliant with safety regulations.

Sale of Properties in Bushfire Prone Areas

From 31 July 2013 all vendor’s statements for a sale of a Victorian property are required to include a statement as to whether the property is situated in a bushfire prone area. Failure to do so may result in a purchaser being able to rescind a contract at any time up to and including the day of settlement.

It is vital that buyers are aware of whether the property they are proposing to purchase is situated within a bushfire prone area particularly where they are intending to build on the land. Various Bushfire Attack Levels have been implemented which recommend the building materials that should be used when building in a bushfire prone area.

For further information on any of the above topics, please contact a member of our Property Law team.

Update to First Home Buyer Benefits in Victoria

Cosgriff Lawyer - Tuesday, June 18, 2013

Subject to the passage of legislation, from 1 July 2013 the Victorian Government will be increasing the First Home Owner Grant from $7,000.00 to $10,000.00. This will however be limited to those purchasing a new home or vacant land upon which a new home will be constructed. A new home is a home that has not previously been occupied as a residence.

The Grant of $7,000.00 will continue to apply to first home buyers who enter into a contract to purchase a new or existing home on or before 30 June 2013. Settlement of the first home buyer’s purchase does not need to take place before 30 June 2013 to be eligible for the Grant.

A stamp duty concession of 40% will continue to be available to first home buyers. This concession is due to increase to 50% from 1 September 2014.

Please contact Emma Wright for further information on the benefits available to first home buyers in Victoria or New South Wales.