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Topic: HR

Are confidential wage rates in enterprise agreements a thing of the past?

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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All in a day’s work: a landmark decision on personal/carer’s leave entitlements

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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“Poisonous employee” wins claim of adverse action

“Poisonous employee” wins claim of adverse action

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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Are you next?: the implications of underpaying staff

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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Changes to legislation for off-the-plan sales

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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Employee or contractor – which one is it?

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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Changes to the Security of Payment Act to commence on 21 October 2019

Security of Payments

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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5 key changes to employment laws on 1 July 2019

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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NSW Government considers new legislation against contractors

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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Stay on adjudicated amount prevents DSD ‘rising from the ashes’

  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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A developer’s liability arising from an unsigned contract

  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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Ipso facto clauses on insolvency

  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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Separable Parts in Staged Development

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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Are you Guaranteeing an Indemnity?

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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Stamp Duty Relief for Australian-Based Foreign Developers

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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Changes To Fire Safety Requirements In The 2016 National Construction Codes – Could This Affect Your Project?

  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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Deferral of Strata Building Bond Regime to 1 January 2018

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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NSW Government to impose increased stamp duty and land tax surcharges on foreign persons (including foreign owned developers)

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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Proposed cap on foreign ownership in New Dwelling Exemption Certificates aimed at reducing pressure on housing affordability.

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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Changes to NSW Retail Leasing Legislation to Commence on 1 July 2017

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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Building Approval Statistics: what they are and what they mean to you

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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You, Me and the Garnishee

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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Creditors to be vigilant when using the statutory demand procedure to enforce an Adjudication Certificate

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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Adjudication determinations are not reviewable for non-jurisdictional errors of law

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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High Court rules that a payment claim is invalid without a valid reference date

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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Developers to be allowed to resell off-the-plan dwellings after failed sales

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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Building Energy Efficiency Certificates (BEEC) – changes from 2017

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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Construction, Property & Projects Insights Issue 5 – November 2016

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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Proposed changes to retail leasing legislation – what you need to know

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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Vincent Young Annual Luncheon – Est.

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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Loose Lips Sink Ships – Representations During Negotiations

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

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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New strata building bond scheme is set to commence 1 July 2017

 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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Construction, Property & Projects Insights Issue 4 – June 2016

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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AFR – Property Industry Fights War for Talented Staff to Meet Growing Demands in Boom Time

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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Commercial Construction and a Duty of Care

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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Asbestos Register

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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Product Safety Recall – Electrical Cable

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 PPSA and Equipment on Site

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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More government control planned for the NSW construction industry

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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Contracting essentials for lawn mower mechanics – Part 1

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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Contracting essentials for lawn mower mechanics – Part 2: Throttle and fuel

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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Contracting essentials for lawn mower mechanics – Part 3

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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Defects liability – How long am I liable?

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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