in this issue
page 1 What Goes Up ... Usually Comes Down.
Redundancy in the Workplace
page 2 No Win, Excessive Fees & No Glee?
page 3 “My Investment went South - Can My Investment Advisor be Liable?”
page 4 Leasing a Premises - What are some of the Traps You Should be Aware of? page 5 Leasing a Premises - What
are some of the Traps You Should be Aware of? continued from page 4 “My Investment went South - Can My Investment Advisor be Liable?”
continued from page 3
page 6 The Changes that I Have Seen in Over 35 Years as a Solicitor in Mackay
page 7 Profile - Charlotte Paterson What Goes Up ... Usually Comes Down.
Redundancy in the Workplace
continued from page 1
page 8 Profile - Catherine Webster Employee or Contractor -Information on the ATO Website
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Liability limited by a scheme approved under professional standards legislation
With the cyclical nature of the mining industry currently in its doom and gloom cycle it is
prudent to consider redundancy in the workplace and when this actually occurs.
Redundancy
Redundancy occurs when an employer:
a) decides they no longer want an employee’s job to be done by anyone and terminates their employment (except in the case of ordinary and customary turnover of labour); or
b) becomes bankrupt or insolvent.
“Ordinary and customary turnover of labour”
Termination of employment will not involve redundancy if the termination is due to “the ordinary and customary turnover of
labour”.
What constitutes “ordinary and customary turnover of labour” will depend on the particular
circumstances in each case; however the general rule is that termination will certainly not be in the “ordinary and customary turnover of labour” if an employer dismisses an employee and then
immediately proceeds to employ another to undertake essentially the same duties as the dismissed employee.
Entitlements
The amount of redundancy pay, payable by the employer to the employee, under the National Employment Standards is calculated at the employee’s “base rate of pay” for his or her ordinary hours of work for the redundancy pay period. The base rate of pay does not include: • incentive-based payments and
bonuses • loadings
• monetary allowances
• overtime or penalty rates; or • any other separately
identifiable amounts.
Solicitors
news update
oct 12
>
issue 48
Darren Sekac
What Goes Up ...
Usually Comes Down.
Redundancy in the
Workplace
By Darren Sekac
If you watch television you would have seen a number of ads for legal firms advertising that they act on a ‘No Win No Fee’ basis with respect to claims for damages for personal injuries. Similar
advertisements can be seen on billboards up and down the highway. Most individuals who have been injured either at work or as a result of a motor vehicle accident or some other related incident, do not have a nest of funds ready waiting to pay for legal services.
Consequently, many individuals in need of legal services are attracted by the slogan ‘No Win No Fee’. After attending or corresponding with the ‘No Win No Fee’ Lawyer, they then normally receive
correspondence or advice to the effect that “the matter is not straight forward but we will act on
your behalf and our total
professional fees inclusive of GST payable by you will not exceed half of the total amount which is
recovered from the opponent after deduction of Centrelink, Medicare, WorkCover and outlays that are incurred with respect to Barristers Medical Specialists, Court fees, travel and accommodation.”
The injured client will then be asked to sign a Cost Agreement which may contain references to
“we will only charge professional fees and expenses if we win or rates reflect our specialist
knowledge on the laws and tactics relating to these claims or
the precise amount of our legal costs that will be payable by you will vary depending upon a number of factors including the nature and
complexity of the matter” and a Schedule of professional fees. A close examination of the Schedule will disclose that the fees may range from $960.00 per hour for an Accredited Specialist to $540.00
per hour for a Senior Associate before the application of a further
uplift for “the risk of undertaking
the work and incurring expense without guarantee of payment”.
Whereas to the injured client the Law and the prospects of success may seem to be a complete mystery, any competent Lawyer should be able to assess a party’s prospects of success in a
consultation with the injured client of less than one hour.
That is, within an hour of meeting the injured client, any competent Lawyer should know whether the claim has prospects or no
prospects. After that assessment is made, the only risk to the Lawyer is if the injured client is not truthful with respect to their version of events. Whether the version of events as described by the injured client is accepted, will more than likely be revealed after obtaining WorkCover records or a Traffic Incident Report or Medical Records.
Our office has dealt with a rising number of complaints from disgruntled clients after entering into No Win No Fee arrangements. The complaints have included: • Legal firms not spending money
on paying for appropriate Engineering reports and
incurring expenses with respect to gathering evidence. Then advising the client that they had no prospects of success. Then demanding over $100,000.00 before they would release the client’s file to enable a client to pursue the action.
• Disputes over the amount of the legal firm’s account at the conclusion of the action. Where on settlement the legal fees charged were $46,000.00 and the client recovered an amount of $46,000.00.
• Matters being settled for less than the true value of the claim perhaps as a result of pressure on the Solicitor to reduce the firm’s overdraft/pay for its advertising budget.
Our practice has resisted acting on a No Win No Fee basis
deliberately to reduce incidents of client dissatisfaction. The
preferred arrangement is for the client to pay for the professional costs and outlays when the work is performed. This can be achieved through the client’s own funds or alternative litigation funding arrangements depending upon the client’s circumstances.
Where litigation funders provide funding they require the legal firm to guarantee repayment of monies lent for the litigation. If the
Solicitor acting on your behalf has guaranteed repayment of monies borrowed, the client can expect that the Solicitor is confident of the outcome of the Claim.
When the client is paying for the legal services provided, the client can demand proper performance. When a Solicitor is being paid at the time the work is performed, there is no pressure on the Solicitor to settle the claim at an undervalue. The costs of conducting litigation should relate solely to the work that is required to be performed, to achieve the best result for the client, and not be dependent upon the damages to which the client is entitled.
No Win, Excessive
Fees & No Glee?
By Gene Paterson
More and more people are choosing to invest in order to protect and secure their financial future and that of their family. It is important that you obtain correct general and financial advice from an experienced, well-informed financial advisor who has taken into account your objectives for investing and your financial situation and needs. In some circumstances, where you have not received the right financial advice you may be entitled to be compensated for the money you have invested.
Investors are often trusting of the advice and expertise of financial advisors and are effectively putting their futures in the hands of their financial advisor. It is important that you are aware that only persons permitted by law are entitled to give you financial advice. These persons are those that work for, or represent, a financial advisory business that hold an Australian Financial Services (AFS) licence. An advisory business that provides financial advice must provide advice that suits your personal circumstances, act efficiently, honestly, fairly and take legal responsibility for its employees and authorised representatives. In this industry, advisory
businesses set their own fees and can charge a commission on products they sell or an hourly rate for the work they do. In some circumstances, the financial advisor will receive a commission
or remuneration for the products they sell.
In the recent decision of Fisher
–v-Risk and Investment Advisors Australia Pty Ltd (ACN 104 922 394) (RIAA), Macrossan & Amiet
represented Mr Fisher, who was the Plaintiff in relation to a claim for negligent financial advice. Mr Fisher’s claim was established against three Defendants; RIAA, Mr Anthony Barlow and
Whitsunday Financial Services Pty Ltd (ACN 106 411 312).
Whitsunday Financial Services carried on business under the name “Neil Hartley & Associates”. Mr Barlow was employed as a financial services advisor for Neil Hartley & Associates.
The facts of the case are that in or about June 2008, Mr Fisher invested $200,000.00 in a commercial property product relating to storage sheds that were to be built in Mackay. The product was more commonly known as the “Ikin Product” and had been recommended by Mr Fisher’s financial advisor, Mr Anthony Barlow.
Mr Barlow was authorised by law to give Mr Fisher personal
financial advice as he was an authorised representative of RIAA, who held an Australian Financial Services (AFS) licence.
Consequently, RIAA provided financial advice to Mr Fisher through its authorised
representative and is therefore liable for Mr Barlow’s actions.
Mr Barlow had provided financial advice to Mr Fisher in the years preceding the Ikin Product Investment. Mr Fisher had developed a professional relationship with Mr Barlow and had previously received and acted upon other financial advice
provided by Mr Barlow without any loss.
Mr Barlow made false
representations to Mr Fisher in relation to the Ikin Product. The investment was explained by Mr Barlow as an investment in two storage facilities that would be built at the Gateway Industrial Park in Mackay. Mr Fisher was further advised that they would receive title to the storage units upon completion and that interest would be paid on the invested monies until completion as the monies would be kept in a trust referred to as the “Mackay Trust”. Acting on bad financial advice can have overwhelming
consequences. In Mr Fisher’s case, he invested $200,000.00 in the Ikin Product which was effectively worth nothing. Mr Fisher brought a claim in the District Court at Mackay against all three Defendants on the grounds of negligence, breaches of the duty owed by each of the Defendants and breaches under the Corporations Act 2001 which set out certain obligations of financial advisors with respect to providing financial advice.
South - Can My
Investment Advisor
be Liable?”
By Danielle Fitzgerald
Danielle FitzgeraldSo you’ve got the perfect idea for a new business, you’ve scoped out the competition, obtained the necessary finance and have found the perfect location to operate your business from… or have you? Sure it may be in the perfect street with affordable rent but what does the Lease say? The terms of a Lease will govern the relationship between you and your Landlord. It is a legally binding document and for many business proprietors it represents one of the most significant commitments of the business. Below are some of the common causes of contention for Tenants and Landlords alike:
• A Lease or Commercial
Tenancy Agreement? – A
Commercial Tenancy Agreement is an agreement commonly used by real estate agents and property managers. They are a standard form document that establishes the basic terms of the tenancy. Whilst these agreements are sometimes preferred by
Landlords over a Lease, mainly due to the costs of preparing a Lease, these agreements are often poorly prepared,
ambiguous, are not capable of registration and often result in difficulties for both the Landlord and Tenant. We encourage all Landlords and Tenants to use Form 7 Leases.
• Is it a Retail Shop Lease? – Over the last decade significant legislation has been introduced
to protect the interests of the Tenant or prospective Tenant of a Retail Shop Lease. If your business is situated in a retail shopping centre or retails to the public, then generally the Lease will fall under the protections of the Retail Shop
Leases Act 1994. One of the
most significant impacts of the Act is that the Landlord must provide you with a Lessor Disclosure Statement prior to signing a Lease and you can not be required to pay the Landlord’s costs of the preparation of the Lease. • What are you Leasing? –
Does the premises include the exterior wall of the building, an outdoor area or does it include a car park? It is essential that you know exactly what you are leasing as it will impact on your obligations with regards to repair and maintenance and the costs of outgoings. Tenants may assume or have been lead to believe that they have the use of one or more car parks or an outdoor area only to later discover that these are common areas. As a general rule, if the use of a particular area is not clearly stated in the Lease then you do not have a right to use it.
• What is the Permitted Use? – The majority of Leases will provide that the property can only be used for the “Permitted Use”. Whether the Permitted use is “surf shop” or “office space” or “warehouse” you will
be in breach of the Lease if your business operates outside of the Permitted Use.
Exclusivity is also another consideration to bear in mind. Unless the Lease expressly states that you have been granted “exclusivity” with regards to the Permitted Use, there is nothing to prevent the Landlord from allowing another Tenant to open a business next door that is in direct
competition with your business. • Rent – Is the rent inclusive or
exclusive of GST? When crunching the numbers it is essential that you know the exact amount that you will be required to pay. In most cases, rent is payable monthly in advance so you need to ensure that you have sufficient startup funds available to pay the first month’s rent. Tenants in major shopping centres should also be wary of Turnover Rent and other payments to be made in addition to base rent.
• Rent Reviews – Is the rent to be reviewed in accordance with the Consumer Price Index, a fixed percentage or to market? These are all methods of rent review and the benefits or detriment of each method will depend on prevailing market conditions. The Lease should clearly state the review dates and be clear as to which method of review is to be applied at each review date. • Outgoings – Many Leases
require Tenants to pay
Leasing a Premises
-What are some of the
Traps You Should be
Aware of?
By Tanya Whalley
Tanya Whalleyusually includes the Landlord’s expenses in relation to the operation, maintenance and repair of the property. Common examples of expenses that are considered outgoings are rates, taxes, levies, insurance costs, management fees and body corporate levies. It is
recommended that where outgoings are payable that you request that the Landlord provide an estimate of outgoings for the year. • Security – Tenants are often
required to provide a bank guarantee, personal guarantee or cash bond as security for the performance of their obligations in the Lease. Amounts required can vary, often between 1 – 6 month’s rent, and the security will be required to be provided before you take possession of the property. Your circumstances may make one form of security better than another.
• Term and Options – On one hand, a lengthy initial term will secure your rights to the
property for an extended period of time and may be beneficial in terms of rent reviews. On the other hand, consider the following example, if you have
you are still obligated to pay rent to the Landlord for the remaining three years of the term. This could have been avoided by having an initial term of two years with 2 x 2 year options as in that scenario the Tenant would be under no obligation beyond the initial term. It should be noted that without an option, a Landlord is under no obligation to renew a Lease.
• Repair and Maintenance – Generally a Tenant is
responsible for the repair and maintenance of the Premises and this includes everything from the replacement of light bulbs to the replacement of broken plate glass in the shop front. From a Tenant’s
perspective it would be prudent to ensure that any repairs of a capital nature would be at the Landlord’s expense, especially with regards to air conditioning which can prove to be a costly item to repair or replace. Leases often include an obligation to redecorate the premises (repaint and replace floor coverings) at particular intervals, say every three years and then again on the
expiration of the Lease.
possession.
• Registration – Whether or not a Lease is registered often is left up to the Tenant. Whilst Tenants can often be reluctant to register a Lease, the best way to secure your interest in the property and the rights afforded to you in the Lease is to register the Lease with the Department of Environment and Resource Management. Registration will protect your right to occupy the premises in the instance that the Landlord sells the property to a third party or a mortgagee enters into possession of the property. Lease terms vary significantly from Lease to Lease and it should never be assumed that one Lease is the same as another. In many cases, even the variation of only a few words can have a significant impact. We recommend that before entering into any agreement for the Lease of property, including Letters of Offer/Intent and Agreements to Lease, that you have the Lease reviewed by a Solicitor. In many cases, the terms of a Lease will be open to negotiation but will be difficult to vary once the agreement has been finalised.
On 7 September 2012, judgment was given in favour of Mr Fisher. He was successful in recovering the investment loss, including interest and legal costs. If you have received negligent financial advice you should consider the options that are available to you.
We understand that it can be at times difficult to deal with your financial advisor or the Financial Advisor licensee with respect to seeking compensation for bad financial advice. If you have suffered loss as a result of negligent financial advice we can assist you in providing legal advice, making a formal complaint
on your behalf to ASIC or the Financial Ombudsman Service or pursuing a civil claim for
compensation.
Macrossan & Amiet are able to assist anyone else who may have been affected by the Ikin Product Investment, or who thinks they have received bad financial advice.
“My Investment went South - Can My
Investment Advisor be Liable?”
Continued from page 3I was asked by David O’Connell, before he was appointed to the position of Central Coroner, to write an article about some of the changes that I have seen in the law since I began working as a solicitor in Mackay in 1977.
When I started working as a young solicitor, I was required to do regular Court work. This involved appearing in the Magistrates Court for cases involving, among other issues, drink driving, questions of paternity, child support and motor vehicle property damage.
At the time, the drink driving legislation required police to prove that a person was driving while drunk or intoxicated. This was achieved either through the police officer’s observations, by having a medical officer examine the person or by way of breath analysis. There were numerous technical loopholes in the legislation, many of which were exposed by prominent Brisbane barrister Bob Brewer, which solicitors used to obtain favourable outcomes for drivers.
As a result, the drink driving legislation was changed over the years, so that there are now very few opportunities for people to defend drink driving charges. Most notably, the results of breath analysis are now deemed to be conclusive. This means that arguments such as, “I was taking cough medicine”, or “I was working in the sun all day and hadn’t eaten” or “I’m a Catholic priest and have five witnesses who can say that I only had 1 glass of wine”, are treated with no regard at all by the Court.
The only current defences to drink driving exist where:
a) The police are put to proof as to the identity of the driver;
b) The blood alcohol specimen (blood or breath) was not taken within three hours of the alleged time of the vehicle being driven; c) The request to supply the
specimen was not lawful because the police officer had acted improperly. An example of this is where a person is
assaulted by a police officer at some stage during the process. With the use of breath analysis, a person is deemed drunk if they have a reading of 0.15 or more. A person with a reading of between 0.05 and 0.15 is charged with the lesser offence of driving while under the influence of alcohol. The effect of a reading of 0.10 or more is that a person’s licence is immediately suspended, pending finalisation of the charge in Court. In the 1980s, the drink driving legislation was changed to allow people with a blood alcohol reading of less than 0.10 to apply for the issue of a restricted licence (Work Licence), provided that: 1. They could establish that they
were the holder of a Queensland licence at the time they were charged, and
2. Their traffic history was not such that would deem them to be unfit to hold a restricted licence. There are no longer paternity cases as such. Questions about paternity are dealt with as part of family law (children’s / parenting)
proceedings, and are determined
relatively easily through DNA testing. The requirement for a parent to pay for the support and maintenance of a child is
determined by the Child Support Agency.
Further, the State law that required a woman to prove that she was deserted or that her leaving the home was as a result of the abuse and conduct of her partner, before she was entitled to family
maintenance has also been repealed. These matters are now dealt with under the Federal Family Law Act and through the Child Support Agency.
There have also been significant changes to the law regarding motor vehicle property damage. At a point in time, insurance companies worked out that it was cheaper to introduce “knock for knock” agreements, rather than incur the legal expense in suing each other every time their drivers were in a collision.
As a result, nowadays the only cases involving motor vehicle property damage arise where one of the parties is not insured. In these cases, it is often the situation that the person does not have insurance because they cannot afford it, and so have difficulty obtaining legal representation. There are still a small number of motor vehicle property damage claims, however these are usually conducted by insurance
companies or individuals acting on their own behalf.
The Changes that I
Have Seen in Over 35
Years as a Solicitor in
What Goes Up ... Usually Comes Down.
Redundancy in the Workplace
Continued from page 1
The redundancy pay periods range from 4 weeks to 16 weeks and are dependent on the employee’s period of continuous service with the employer on redundancy.
It is also necessary to consider any applicable Award that is adopted by the workplace to consider whether any differing redundancy provisions apply to the employee.
Termination
If an employer terminates an employee’s employment, and such termination does not fall within the definition of “redundancy” then
the employer only has to pay termination entitlements, which are less than redundancy
entitlements. The general rule for termination entitlements is as per the below table:
Employee’s period of continuous service with the Period employer at the end of the day the notice is given
Not more than 1 year 1 week
More than 1 year but not more than 3 years 2 weeks More than 3 years but not more than 5 years 3 weeks
More than 5 years 4 weeks
If you’re an employee or employer who would like further information with respect to redundancy, or any workplace matter in general, please feel free to contact our office so that we may discuss your particular circumstances and how the law applies to you.
My name is Charlotte Paterson and I have recently started working at the Cannonvale office. My father, Gene is a partner at the firm and has worked here since before I was born. My sister, George also works at Macrossan & Amiet.
Before I came to work at the Cannonvale office, I had just finished up at another job, and was sitting around Brisbane doing very little when Gene called me and asked me if I wanted to come and do some work at the firm. He asked me in the way that he normally does, which is to say he didn’t so much as ask, but told me, in no uncertain terms that he “would be bitterly disappointed” if I didn’t. My mind was made up – I was coming home.
The truth is though, that I was happy to come and work at Macrossan & Amiet, and if Gene
hadn’t asked me when he did, I would have had to broach the subject with him, which was a conversation I was not looking forward to.
I’ve spent a lot of time at the Mackay office over the years. Mostly in an unofficial capacity of course – stealing stationery, eating biscuits from the tea room and generally getting in the way of the support staff, and thought that it was about time that I contributed something worthwhile.
I was also thinking that it would be good to learn how the firm
worked, and now that I’ve finished Uni, been admitted and hopefully have some idea as to what lawyers actually do – what went on there.
I know that Macrossan & Amiet is well-respected and has a strong presence in the Mackay region. I also know that the lawyers know
what they’re doing. They’re good at their jobs and have good reputations in the profession and in the community.
I’m grateful to have the opportunity to work at the Cannonvale office. I’m looking forward to working with the staff there, being involved in some interesting matters and doing work that’s different from what I’ve done in the past.
My only thought now is that I probably should have come back sooner.
If you have any queries about any of the articles in this newsletter, please feel free to email
[email protected] phone 4944 2000 (Mackay)or 4948 4500 (Whitsundays)to speak directly with the author of the article.
Contact us
For further information about the services offered by Macrossan & Amiet Solicitors please contact your nearest office:
Mackay
Amiet House 55 Gordon Street Mackay QLD 4740 Ph 07 4944 2000 Fax 07 4957 3346 [email protected] Whitsunday Suite 4
Whitsunday Business Centre 230 Shute Harbour Road Cannonvale QLD 4802 Ph 07 4948 4500 Fax 07 4948 0699
Proserpine
18A Chapman Street Proserpine QLD 4800 Ph 07 4945 2388 Fax 07 4945 2664 [email protected]
www.macamiet.com.au
In our September edition, we published an article which discussed “Sham Contracting” arrangements and the risks posed to employers who make the
mistake of classifying their workers as contractors rather than
employees.
To assist employers in avoiding any confusion regarding this issue, the ATO has included information which is useful to determine whether a worker is an employee or contractor on its website at www.ato.gov.au.
To access the information, click on the “Businesses” tab, highlight the “Pay staff” heading and then click on the Employee or contractor link. The Employee or contractor link also contains an
Employee/contractor decision tool which employers or workers can
use to determine whether a worker is an employee or contractor. After answering some simple questions about your working arrangements, an employer or worker can obtain a report which will provide an answer on whether a worker is an employee or contractor. The report will also provide information about tax and superannuation obligations an employer may need to meet. The decision tool is free and can be completed anonymously. If you are unsure of whether your business may be engaging in sham contracting arrangements, you may wish to visit the ATO website and use the tool to check to see that you are following the law correctly. If you would like more advice on this issue, please contact Steven Hayles.
news
Employee or
Contractor
-Information on
the ATO Website
By Steven Hayles
Steven Hayles the last 2 1/2 years in Mount Isa in
north-west Queensland. Prior to moving to Mount Isa, I worked for Macrossan & Amiet for five years, completing my Articles of Clerkship (i.e. Traineeship) during my first two years at the firm. I was admitted as a Solicitor in January 2007.
In early 2010, my husband was transferred in his employment to Mount Isa, so I too made the move out west. While in Mount Isa, I worked for a small, family-owned law firm predominately in the areas of Commercial and Property Law and Wills and
continue to develop my legal knowledge and learn some new things relevant to the practice of law in a different part of
Queensland.
I am now pleased to have returned to Mackay, which still feels like home after a few years away. I look forward to
redeveloping working relationships with clients of Macrossan & Amiet and working with the directors and staff, focusing on my main areas of practice, Commercial and Property Law and Wills and Estates.
