Changes to the industrial relations system are looming, with the Prime Minister asking the Attorney-General in his capacity as Minister for Industrial Relations to look at the system and the Minister releasing two discussion papers seeking input about the operation of certain parts of the system. The closing date for submissions is 3 April 2020. …
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A 64 year old employee with six years’ service has been awarded reinstatement by the Fair Work Commission (FWC). The FWC determined that there was no valid reason for dismissal and even if there was a valid reason, the termination of employment was still harsh given the employee’s personal and financial circumstances. The lessons for …
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In this Full Bench decision, it was found that the Commission lacked the necessary power to redact the wages rates in the published version of an enterprise agreement. This is the first Full Bench decision to consider the proper construction of sections 601(4)(b) and 594(1) of the Fair Work Act 2009 (Cth) (FW Act). This …
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The Full Federal Court has handed down an important decision about personal/carer’s leave entitlements under the Fair Work Act 2009 (Cth) (Act). This decision is now the authority for how personal/carer’s leave should be treated and, for some employers, will have significant implications on how they treat personal/carer’s leave. The Court has said that: eligible …
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This recent Federal Circuit Court decision reminds us of the need for employers to ensure that redundancies are implemented on the basis of genuine operational reasons. A decision to terminate an employee’s employment or disestablish an employee’s position where there is a lack of evidence around the operational reasons for the decision is likely to …
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The recent headlines involving celebrity chef George Calombaris and the MADE Group of Restaurants serves as a warning to employers about workplace compliance and the consequences of getting it wrong. Fair Work Ombudsman Sandra Parker says “the Fair Work Ombudsman is cracking down on underpayments in the Fast Food, Restaurant and Café sector, and we …
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The Conveyancing (Legislation) Amendment Act 2018 (Act) was passed by Parliament on 13 November 2018. It deals with aspects of electronic land transactions and off-the-plan sale contracts for residential property. The sections of the Act dealing with electronic land transactions took effect on assent being 22 November 2018. The sections introduced to provide greater protections …
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The Fair Work Commission (FWC) has once again confirmed that parties cannot alter the true nature of a relationship by putting a different label on it. “It would be hard to find a clearer case where the indicia were so strong as suggesting this to be an employment relationship and not a contractor relationship. I …
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The NSW Government has proclaimed 21 October 2019 as the day on which the Building and Construction Industry Security of Payment Amendment Act 2018 No 78 will commence, introducing the following key changes to the Building and Construction Industry Security of Act 1999 (NSW) (Act): the concept of “reference dates” has been removed with payment …
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National Minimum Wage Each financial year, the Fair Work Commission’s (FWC) Expert Panel for wage reviews undertakes it annual wage review and subsequently publishes its decision. This financial year, the FWC’s decision has resulted in the new national minimum wage being set at $740.80/week or $19.49/hour from the first full pay period on or after …
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In the wake of two well-publicised damaged apartment blocks, the NSW Government has released an update on their plan for legal reform within the building and construction landscape. In short, the NSW Government proposes further regulation and a statutory duty of care. In June 2019, the NSW Government released the “Building Stronger Foundations Discussion Paper” …
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TALKING POINTS: Contractor’s risk of insolvency Implications on adjudication determination under the Security of Payment Act NSW (SOP Act) Illegal phoenix activity Greenwood Futures v DSD Builders (No 2) [2018] NSWSC 1471 In Greenwood Futures v DSD Builders (No 2), the NSW Supreme Court granted a continuation of stay on an adjudicated amount in …
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On Appeal (3 August 2018), it was found that builders and persons that are considered to be developers can be equally held liable for defects, under the New South Wales Home Building Act 1989 (HBA) in breach of the statutory warranties. FACTS AT FIRST INSTANCE Mr and Mrs King (Kings) owned a warehouse …
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On 12 September 2017, reforms to Australia’s corporate insolvency were passed by both Houses of the Australian Federal Parliament, which includes:[1] a) a safe harbour for company directors from personal liability for companies trading insolvent; and b) a stay on the enforcement of ipso facto clauses during a period of restructuring of a company. …
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Sunset clauses are common in off the plan contracts or other contracts where the vendor has obligations to satisfy conditions precedent to complete (Contract). Off the plan contract means a contract for the sale of a residential lot (subject lot) that has not been created at the time that the contract is entered into. A …
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Can a respondent not pay an adjudication determination because the claimant is acting as if it were broke? An adjudication has been made against a respondent. The builder or subcontractor (the claimant) is on the brink – trading at a loss, firing staff, changing corporate structure. The respondent knows they are close to insolvency, and …
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The Strata Building Bond Scheme, which was introduced by the Strata Management Act 2015 (the Act), provides that in situations where the Act applies (See New strata law and building bond regime are set to commence), the developer must give a security (“building bond”) to the Secretary of the Department of Finance, Services and Innovation …
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Introduction It is common for a contractor to provide an indemnity and/or a guarantee to a principal under a construction contract. However, contractors must know that the two are fundamentally different. They should not take on additional obligations/risks than what is agreed between the parties under the construction contract. For ease of understanding, we shall …
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In All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd [2017] NSWCA 289, the Court of Appeal held that a payment claim served before a reference date will be invalid under the Act despite a provision in a contract deeming that the service of the payment claim is taken to have been made …
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A bill has recently passed through both Houses of the NSW Parliament entitled the State Revenue Legislation Amendment (Surcharge) Bill 2017 (NSW) (Bill) which targets Australian-based developers that are foreign persons (Foreign Developer). It has received assent but is to commence on a date to be proclaimed. We await the proclamation, which is yet to …
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Following the Lacrosse Apartments fire in Melbourne, the Australian Building Codes Board (ABCB) began to develop a comprehensive package of fire safety measures for high rise buildings which was to be incorporated into the next version of the National Construction Code (NCC). However, following the Grenfell Tower fire in London, the Building Ministers’ Forum …
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The Federal Government has reduced the threshold at which a vendor is required to provide a Foreign Resident Capital Gains Clearance Certificate (FRCGCC) to purchasers of real property. The new rules apply to all contracts for sale with a market value over $750,000 (previously $2,000,000) entered into from 1 July 2017. If an Australian resident …
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The Electronic Transactions Legislation Amendment (Government Transactions) Act 2017 (Act) passed into law in the last week of June 2017. It amended a number of Acts including the Strata Management Scheme Act 2015 NSW delaying the commencement of the new defects bond scheme until January 2018. Email Allowed Whilst it did not create much fanfare the …
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The commencement of the strata building bond regime has been deferred from 1 July 2017 to 1 January 2018. This means that the regime will not apply if the construction contract (to carry out residential building work associated with a new strata scheme) was signed before 1 January 2018. The regime will apply if the …
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In February of this year, the Society of Construction Law (“SOCL”) published the 2nd Edition of the Delay and Disruption Protocol (“the Protocol”) – the first update to the Protocol since the release of the first edition in 2002. The Protocol is prepared for the UK market, but has found application around the world, …
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The NSW Budget Statement (released on 20 June 2017) has provided further details on how the increased stamp duty and land tax surcharges will affect foreign owned developers. To recap, on 1 June 2017, the NSW Government announced its intention to increase the surcharges as such: Summary Foreign owned purchasers of residential property will be …
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In the 2017-2018 Federal Budget the Government announced several changes aimed at reducing pressure on housing affordability, some of which affect foreign ownership of Australian residential property. The biggest change is the introduction of a cap on foreign ownership in new developments, through a condition on New Dwelling Exemption Certificates applied for after 7:30PM (AEST) …
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On 5 April 2017, the New South Wales Government signed and sealed a Commencement Proclamation which will bring into effect the Retail Leases Amendment (Review) Act 2017 (NSW) (Act) on 1 July 2017 as the day on which that Act commences. Among other things, the Act will introduce tighter obligations on the lessor by way …
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In The Trustee for the Whitby Trust v Commissioner of taxation [2017] AATA 343 (20 March 2017), the AAT has held that an option fee paid by a developer do not form part of the consideration for acquiring the property for the purposes of calculating GST under the margin scheme in accordance with Div …
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These statistics on Building from the Australian Bureau of Statistics (ABS) published in February 2017 show some very interesting trends. The salient figures worth noting is that, at the time of publication, there has been a slightly downwards trend for all building by 0.1% for the last 7 months but the ride down is bumpy …
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The first question clients ask when obtaining a favourable judgment is “how will we enforce this judgment against the debtor?”. The quickest and most effective way to enforce a judgment debt is to obtain a garnishee order from the Court. This article sets out the key elements of garnishee orders so that you can enforce …
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Introduction During the process of obtaining payment under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act), a Contractor (or Subcontractor) may, after obtaining an adjudication certificate and filing the certificate in the court of competent jurisdiction, serve a statutory demand on the Principal (or Contractor) demanding payment. In the matter …
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In our June 2016 issue of Construction, Property & Projects Insights (Issue 4), we discussed the first instance decision of Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2016] NSWSC 770, in which the Supreme Court of NSW held that adjudication determinations were subject to judicial review for non-jurisdictional errors of law on …
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Legal Issue A recent decision in the Victorian Supreme Court examined whether the Plaintiffs, Tan and Lo, validly exercised their cooling off rights to terminate a contract for sale in circumstances where the notice was served on the vendor’s selling agent. Practical Effect of Decision The case illustrates the importance of knowing, prior to entering …
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Introduction In our November 2016 Construction, Property & Projects Insights (Issue 5), we noted that the High Court was soon to release judgment in Southern Han Breakfast Point Pty Ltd (In Liquidation) v Lewence Construction Pty Ltd [2016] HCA 52 (Southern Han Decision), which would be the first time the High Court had given judgment …
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The Federal Government has announced its intention to pass legislation under the foreign investment framework to allow foreign buyers to purchase an off-the-plan dwelling when another foreign buyer has failed to reach settlement and the contract has been rescinded or terminated. The main legislative issue for developers is what currently constitutes a new dwelling. Under …
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The position regarding Building Energy Efficiency Certificates (BEEC) in Australia is in a transition phase as a result of changes to the Commercial Building Disclosure Program (CBDP), which exists under the Building Energy Efficiency Disclosure Act 2010. Currently, lessors are required to provide energy efficient information when they lease or sell commercial office space of …
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In this issue, we look at the following key developments in construction, property & projects law: Security of Payments Goes to the High Court Unfair Contract Terms in the Construction Industry – You Need to Take Action New Strata Laws and Building Bond Regime Set to Commence Loose Lips Sink Ships – Representations During Negotiations …
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On 8 November 2016, the NSW government introduced the Retail Leases Amendment (Review) Bill 2016 (Bill), which seeks to amend the Retail Leases Act 1994 (Act). The Bill provides further protection to a lessee consistent with the general legal environment of increased ‘consumer’ and small business protection. This article examines some of the key changes …
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On Friday 14th October 2016, Vincent Young hosted its Annual Luncheon at Est. Our Annual Luncheon is an opportunity for us to thank our existing clients as well as get to know companies and businesses we admire and would like to work with in the future. The luncheon featured speeches from Carolyn Cummins, the Commercial Property Editor …
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Part 10 of the Strata Schemes Development Act 2015 (Act) prescribes a process for strata renewal. Part 10 commenced on 30 November 2016. The Part 10 process enables the owners in a strata scheme to seek a Court order for one of 2 options: the “collective sale” of all apartments in that strata scheme for …
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Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26 This Victorian case illustrates the problem with talking loosely during negotiations. The case worked its way from the Victorian Civil & Administrative Tribunal (VCAT), through the Victorian Court of Appeal and finally to the full bench of the High Court. The Facts The …
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Unfair Contract Terms in the Construction Industry – You Need to Take Action In November 2016 new legislative changes will see negotiating power swing away from larger businesses towards small businesses. This article looks at: the changes to the Australian Consumer Law which will extend unfair contract protections to small businesses (less than 20 people …
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What is the Building Bond Scheme? The building bond scheme is a regime whereby developers of residential strata schemes have to: lodge a bond with the Department of Finance, Services and Innovation (DFSI); and arrange for defects inspections within the strata scheme after completion of the building work. Does the Building Bond Scheme Apply to …
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In this issue, we look at the following key developments in construction, property & projects law: Contractual Clauses Limiting the Accrual of Reference Dates or a Right to a Progress Payment | Are Your Clauses Void? Supreme Court Overturns Adjudication Determination for Failure to Apply LDs Case Law Developments | Required Form of a Supporting …
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The following article was published in The Australian Financial Review on 12 February 2015 by Michael Bleby. The principal of Vincent Young, Brett Vincent, offered his insight into the trends of the construction and property industry hiring boom. The property industry is going through a hiring boom as demand surges for construction- and property-related services. Jobs …
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Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36 The High Court of Australia has unanimously held that Brookfield Multiplex Ltd (Brookfield) did not owe a duty of care to prevent economic loss suffered by the Owners Corporation in a strata-titled complex it constructed. Brookfield was in fact not liable to Owners Corporation Strata …
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If you are in management or control of a workplace, then you must keep an asbestos register – a document that lists all identified or assumed asbestos in a workplace. If asbestos has been identified and you do not have a register, then penalties of up to $18,000 may apply.1 The register should be reviewed at …
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Please be advised that on 27 August 2014 the Australian Competition and Consumer Commission (ACCC) released a Product Safety Recall of all, INFINITY & OLSENT branded Infinity TPS (flat and flexible) & Orange Round low voltage electrical cables of all sizes, configurations and models that are polymeric insulated and PVC sheathed/insulated The safety recall is …
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The Personal Properties and Securities Act (2009) (Cth) (PPSA) is a law about security-interests which applies to all personal-property Australia wide.[1] The PPSA has created a national register over security interest called the Personal Property and Securities Register (PPSR). The PPSR has replaced over 70 national registers which previously dealt with registered security interests over …
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On 30 October 2013 the New South Wales Legislative Assembly passed the first of a number of proposed amendments to the Building and Construction Industry Security of Payment Act 1999 (NSW) (“Security of Payment Act”) that will change the construction legal landscape in New South Wales for many years to come. All that is required …
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A contract is like a lawn mower. Each has about 50 operable parts, some are dangerous, others fuel the engine and others clean up and catch the grass. Welcome to your first lesson on the contracting essentials for lawn mower mechanics. This first article will focus on the terms that are the dangerous parts. These …
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Welcome to your second lesson on the contracting essentials for lawn mower mechanics. This second article will discuss the ‘throttle and fuel’ of the contract. These clauses keep the machine running. They outline how money is to flow between Principal and Contractor as well as any other requirements which facilitate the operation of the Contract. …
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Welcome to your third lesson on the contracting essentials for lawn mower mechanics. This third article will discuss the ‘cleaning up’ of the contract. These clauses keep the ground tidy and clean up after the operation of a lawn mower. They outline what must be done by both parties prior to the works at the …
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Limitations on claims for breach of Statutory Warranties under the Home Building Act Contractors who undertake residential building work now carry the risk of multiple claims for defects for a period of seven years from completion of the works. Recent amendments to the Home Building Act 1989 NSW (“the HBA”) have changed the law on …
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