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I have an issue: do I need to investigate?

Wednesday, May 25, 2016

An employer has a legal obligation to provide a safe working environment under a number of legislative provisions such as the Work Health and Safety Act 2011. Investigations are one option available to establish the facts, identify issues, and look at potential outcomes to resolve a situation.

When should you investigate?

A workplace investigation should be conducted when you:

  • receive a specific complaint of misconduct;
  • are aware of ‘problems’ in an area;
  • don’t know what happened; or
  • need to establish evidence in order to make a decision. 

There is also often an obligation under an applicable Enterprise Agreement or internal policy to conduct an investigation.

Formal or Informal?

An informal investigation may occur when the complaint relates to minor misconduct that would, if substantiated, lead to performance management or a warning.

A more formal investigation should be conducted when it an allegation of serious misconduct, a breach of legislation or company policy, or if the potential disciplinary action may be serious, such as dismissal.

If the allegation is of deliberate misconduct and the actions were intentional, summary dismissal may be considered, however care should be taken to ensure any claim for unfair dismissal is not successful.

Key Steps for a Workplace Investigation

When a complaint is received, you should:

  • verify the initial complaint
  • appoint an independent investigator
  • determine the allegations
  • conduct evidence gathering
  • prepare a report.

There are a variety of types of evidence, ranging from statements, documentary evidence and electronic evidence. Although strict rules of evidence are not mandatory in an investigation, the ability to rely on the report will be stronger the more closely they are followed.

Where to from here?

Workplace investigations are an important tool that can be relied upon to defend a decision if they are conducted properly, by ensuring procedural fairness is provided, there is no conflict of interest, and information is kept confidential. Consequently, you should seek advice to ensure your investigation, and any outcome, is handled properly.

If you require more information on how to complete a workplace investigation, please contact us.

 

A guide to the leases Act for landlords

Thursday, May 19, 2016

Are you the landlord of retail or commercial premises in Canberra? If so, it is likely that the Leases (Commercial and Retail) Act 2001 (ACT) (the Leases Act) will apply.

As a landlord under a Leases Act lease, there are some of the things you should be aware of.

·      Inconsistency –You are unable to contract out of your obligations under the Leases Act – in the event of any inconsistency between the lease and the Leases Act, the Leases Act prevails and the lease clause is void.

·      Disclosure Statement – You are required to provide a prospective tenant with a disclosure statement for the proposed lease at least 14 days before the lease is entered into. A disclosure statement outlines all of the important details of the lease, for example the term of the lease, if any option terms are available and outgoings payable by the tenant, and should reflect all terms agreed upon between the landlord and the tenant. If a disclosure statement is not provided, a tenant has the right under the Leases Act to terminate the lease within the first three (3) months of the term.

·      Bonds and bank guarantees – you are entitled to require a bond or a bank guarantee for security of the tenant’s obligations under the lease.  Under the Leases Act a bond cannot be for an amount more than 3 months’ rent for the premises.  You are required to hold a bond in trust in an interest bearing account and you may only make certain deductions from the bond that are permitted under the Leases Act.  For this reason it is often preferable as a landlord to request a bank guarantee rather than a bond.

·      Rent review – under the Leases Act, rent cannot change more than once in each 12 month period after the commencement of the lease. A clause in a lease that allows for a rent review to occur more than once in a year will be void. You are not permitted to include a clause in the lease that prevents the amount of rent payable from decreasing on market review. If a clause to this effect (commonly referred to as a ratchet clause) is included in the lease, it will be deemed void under the Leases Act.

·      Outgoings – you are required to provide the tenant with a written estimate of the outgoings a tenant is required to contribute to under the lease 1 month before each accounting period during the term of the lease and make a written expenditure statement available to the tenant within 1 month after the end of the accounting period. The estimates must align with the description of the listed outgoings in the disclosure statement provided to the tenant before they entered into the lease.  For this reason it is critical to ensure that your disclosure statement includes a complete list of the outgoings you intend to recover from the tenant.

·      Harsh and oppressive conduct – you are prohibited under the Leases Act from engaging in conduct that is harsh and oppressive. An example of harsh and oppressive conduct includes, but is not limited to, discrimination against a tenant for being a member of an association that represents and protects the interests of tenants or preventing a tenant from joining such an association.

·      Lease costs – the landlord and the tenant are responsible for their own respective costs in relation to the preparation of a lease.  You are, however, entitled to require the tenant to pay for the landlord’s costs for certain things such as considering or preparing documentation for an assignment of or subletting under the lease.

 

 Contact our office for more information on your rights or obligations as a landlord.

A GUIDE TO THE LEASES ACT FOR TENANTS

Monday, May 16, 2016

Are you the tenant of retail or commercial premises in Canberra? If so, it is likely that the Leases (Commercial and Retail) Act 2001 (ACT) (the Leases Act) will apply.

As a tenant under a Leases Act lease, there are some of the things you should be aware of.

·      Inconsistency – if the landlord includes a clause in a lease that is inconsistent with the Leases Act, this clause will be considered void.

·      Disclosure Statement – Landlords are required to provide a prospective tenant with a disclosure statement for the proposed lease at least 14 days before the lease is entered into. A disclosure statement outlines all of the important details of the lease, for example the term of the lease, if any option terms are available and outgoings payable by you as the tenant, and should reflect all terms agreed upon between the landlord and the tenant. If a disclosure statement is not provided, a tenant has the right under the Leases Act to terminate the lease within the first three (3) months of the term.

·      Bonds and bank guarantees – in almost every case, a landlord will require the tenant to provide a bond amount. Under the Leases Act a bond cannot be for an amount more than 3 months’ rent for the premises. Your bond amount must be held in trust by the landlord in an interest bearing account and the landlord can only make certain deductions from the bond that are allowed under the Leases Act. You should also note that if it is your preference to provide a bank guarantee, instead of a bond amount, the landlord cannot unreasonably refuse to accept a bank guarantee in satisfaction of a bond.

·      Rent review – under the Leases Act, rent cannot change more than once in each 12 month period after the commencement of the lease. A clause in a lease that allows for a rent review to occur more than once in a year will be void. A landlord is also not able to include a clause in the lease that prevents the amount of rent payable from decreasing on market review.

·      Outgoings – a landlord is required to provide the tenant with a written estimate of the outgoings a tenant is required to contribute to under the lease 1 month before each accounting period during the term of the lease and make a written expenditure statement available to the tenant within 1 month after the end of the accounting period. The estimates must align with the description of the listed outgoings in the disclosure statement provided to the tenant before they entered into the lease. The landlord has other reporting requirements under the Leases Act in respect of all outgoings, including in relation to the landlord’s spending on outgoings.

·      Harsh and oppressive conduct – landlords are prohibited under the Leases Act from engaging in conduct that is harsh and oppressive. An example of harsh and oppressive conduct includes, but is not limited to, discrimination against a tenant for being a member of an association that represents and protects the interests of tenants or preventing a tenant from joining such an association.

·      Lease costs – the landlord and the tenant are responsible for their own respective costs in relation to the preparation of a lease. Tenants should be aware that the landlord may require the tenant to pay for the landlord’s costs for certain things such as considering or preparing documentation for an assignment of or subletting under the lease.

 

Contact our office for more information on your rights or obligations as a tenant.

Don’t risk losing 10% of your sale price on settlement: Understanding withholding tax obligations

Friday, May 06, 2016

If you are thinking about selling or purchasing property in the near future, you should be aware that for certain transactions there are additional obligations of the vendor and purchaser who are selling and buying some types of property. As of 1 July 2016, if a foreign resident disposes of certain taxable Australian Property a 10% withholding tax may apply. This tax will require the purchaser to withhold 10% of the purchase price and pay that amount to the Australian Taxation Office (ATO).

 

What assets will be affected?

 

The withholding tax will only apply on transactions entered into on or after 1 July 2016. The most predominant impact the withholding tax will have is on the sale of land, buildings, residential and commercial property within Australia with a market value of $2 million or more. There are obligations on both the vendor and purchaser of property above this value to take certain steps to prior to completion of the sale.

 

Other assets impacted include lease premiums paid for the grant of a lease over real property in Australia, mining, quarrying or prospecting rights, interests in Australian entities whose major assets consist of the above property or interests, and options or rights to acquire the above property or interests.

 

Exclusions include if the transactions are ones listed on an approved stock exchange, such as the Australian Stock Exchange (ASX), or if the foreign resident vendor is under external administration or has declared bankruptcy.

 

What do I have to do?

Vendor

 

If you are an Australian resident vendor of Australian real property with a market value of $2 million or above, as of 1 July 2016 you will be required to apply for a clearance certificate through the ATO and provide this to the purchaser before settlement to ensure that no funds are withheld from the sales proceeds on settlement. A clearance certificate confirms that the withholding tax is not to be applied to the transaction and can be accessed through the ATO website or by calling 132 866 within Australia or +61 2 6216 1111 outside Australia. The clearance certificate is valid for a 12 month period and must be valid on completion of the sale.

 

If, as a vendor, you are not entitled to a clearance certificate, but believe the withholding tax is inappropriate, you may apply for a variation application requesting a lower tax rate to be applied to your transaction. A variation application can be accessed in the same manner as a clearance certificate.

 

Purchaser

 

If you are a purchaser entering into a transaction including Australian real property on or after 1 July 2016 you must withhold 10% of the purchase price and pay this to the ATO unless the vendor provides a clearance certificate. Failure to withhold the relevant amount can result in a fine equal to the amount that was required to be withheld. If you are required to withhold an amount, you must complete an online Purchaser Payment Notification form, providing the details of the transaction (including vendor and assets you are purchasing) to the ATO. Doing this will generate a payment reference number and a barcode. The Purchaser Payment Notification can be accessed in the same manner as a clearance certificate. Payment methods are also available through the ATO website.

 

The Tax and Superannuation Laws Amendment (2015 Measures No. 6) Act 2016 can be accessed at the following link: https://www.legislation.gov.au/Details/C2016A00010.

Companies must get changed in public

Wednesday, April 27, 2016

The Australian Securities and Investments Commission (ASIC) is the regulator for corporate entities in Australia. ASIC administers the Corporations Act 2001 (Cth).

 

ASIC needs to know if your company changes a whole range of basic company information – and in most cases, you have just 28 days to let ASIC know. If you fail to tell ASIC you can be hit with late fees; $75 for up to one month late and $312 for over one month late.

 

We often see clients hit with late fees with many companies not realising that, for example, even a change of address of a director requires notification to ASIC.

 

A list of other changes which ASIC should be notified of include:

 

·                Name of office holders or members

·                Change to company addresses

·                New directors/ secretary

·                Removal of a director/ secretary

·                Proprietary company members

·                Ultimate holding company

·                Cancellation of shares

·                Issue of shares

·                Share structure

 

A Form 484 is used to notify ASIC of these changes and you can lodge this form online using your corporate key. For more information, go to: http://www.asic.gov.au/for-business/changes-to-your-company/

 

If you require any assistance please contact us.

Uh oh.... lose your work iPad?

Wednesday, April 20, 2016

We’ve seen media reports, heard stories and maybe it’s even happened to someone in your office – an employee loses the work tablet or phone. Other than a huge inconvenience it can also have implications for your organisation’s compliance with the Privacy Act.

 

Australian Privacy Principle 11.1 requires an organisation that holds personal information to take reasonable steps to protect information from:

 

(a)      misuse, interference and loss; and

(b)      unauthorised access, modification or disclosure.

 

Unfortunately with the rise of technology, so too has there been a rise of privacy breaches, which can happen in numerous ways including by:

 

(a)      lost devices;

(b)     staff emailing information that should not otherwise have been emailed to the recipient; and

(c)      hacking.

 

If this happens to your organisation, you should take the following steps to immediately respond:

 

1.         Take the breach seriously.

2.         Contain the breach: stop the breach, for example, by shutting down the system or changing computer privileges.

3.         Assess the breach: what personal information, or sensitive information, did the breach involve? What possible harms could come from the breach? Who is affected by the breach? What is the context of the breach?

4.         Notification: who needs to be notified immediately? Do affected individuals need to be notified immediately? Is an internal investigation required? Do the police need to be notified? Does your insurer need to be notified? Consider notifying the Office of the Australian Information Commissioner.

5.         Do not destroy evidence: evidence may be used to identify the cause or culprit and to help analyse corrective or future preventative action.

6.         Maintain records: detail steps taken, decisions made and outcomes.

7.         Conduct an audit: assess your organisation’s processes and systems to identify and resolve weaknesses which may expose the organisation to further breaches.

 

Following these steps can help you avoid or mitigate the loss such breaches can cause. It can also go a long way in protecting your organisation from adverse findings and penalties by the Office of the Australian Information Commissioner.

Are your employment agreements and policies sufficient for the 21st century?

Tuesday, April 19, 2016

Have you been using the same employment contracts for a number of years? Did you create a set of policies and procedures years ago, which are locked away in a top draw?

 

If the answer to either of those questions is yes, then it is probably time for an upgrade!

 

It is important that all policies and employment agreements are reviewed and amended regularly in order to ensure that the documents meet the changing requirements of your organisation and the law. Some issues to consider include the following:

(a)      Do your agreements and policies cover employees working remotely?

(b)      Do your agreements and policies cover employees working on different devices (such as phones or tablets)?

(c)       Do your agreement and policies cover new social media forums, such as Facebook and Twitter?

It is important that these issues are considered for a number of reasons, including:

(a)      Privacy and confidentiality concerns – including ensuring that employees are required to have passwords on all devices used for work purposes.

(b)      Ensuring that you remain protected as an employer when an employee is not physically located within the office.

(c)       Ensuring that employees are unable to behave in a way on social media which has the potential to impact on your business.

(d)      Ensuring that inappropriate conduct online, such as bullying or harassment, remains within the scope of the relevant disciplinary procedures.

The Courts and the Fair Work Commission have made clear in recent case law the importance of employers maintaining up to date policies and procedures, and also acting in accordance with those policies and procedures.

 

But keep in mind having these policies and procedures is not enough. It is also necessary that employees be kept informed of any amendments, and that the employer acts in accordance with amendments to policies and procedures. The consequences of not doing this is the risk of unfair dismissal or breach of contract proceedings.

Driverless cars - a liability dilemma

Tuesday, April 12, 2016

Driverless cars are the not-too-distant future with manufacturers claiming that fully autonomous cars could be on Australian roads as soon as 2025. This brings joyous thoughts to consumers such as the possibility of responding to a multitude of emails on the way to work, a well-deserved nap on the way home or finally finishing that novel in silence before arriving home to the family.

So what would this mean?  In addition to napping and emailing whilst your car takes over the responsibility of driving, experts claim that this innovation will make for safer roads, increased social inclusion, and greater fuel efficiency. 

The ACT might soon follow the lead of the South Australian Government in legislating to permit trials of driverless cars on ACT roads with the issue one that has been discussed in the ACT Legislative Assembly this year.  The ACT Shadow Transport Minister, Alistair Coe issued a draft bill earlier this year to allow trials of autonomous vehicles in the ACT. More recently Chief-Minister, Andrew Barr has been in discussions with Tesla and Google to lobby for the introduction of the testing of driverless cars in Canberra.

Still clearly in early stages, it is difficult to contemplate the full range of legal liability issues which could potentially arise from the commercial use of driverless cars.  What is clear, however, is that such changes would require a complete overhaul in the legal understanding of ‘drivers’, ‘vehicles’ and accountability on the roads. 

1.   Who is in control of the car?

The introduction of driverless cars would raise fundamental issues with the current wording of ACT legislation.  A ‘driver’ of a vehicle for instance is defined as ‘the person driving the vehicle’.  To ‘drive a vehicle’ is defined as ‘to be in control of the steering, movement or propulsion of the vehicle’.  Here arises a clear problem – If I am sitting in the front seat of the car, but the steering and movement of the vehicle is automatic, am I still the driver?  The importance of this question arises when issues of liability – in situations of speeding, crashing a vehicle, or “driving” under the influence. 

 

2.   Who is liable for speeding or car accidents?

Without clear legislation on where liability lies in accidents caused by driverless cars – with the ‘driver’ or with the car manufacturer – prosecution for traffic accidents will be more difficult than ever.  Firmly established principles of the duty of care owed by a driver to others on the road will face challenges.  A driver may be able to eschew responsibility by arguing that he or she had relied on the quality of the car’s technology, passing the duty of care over to the manufacturer of that car.  There are reports that Volvo cars has stated that it will accept full liability for accidents involving driverless cars. However, this would of course be limited and not extend to situations of misuse of the vehicle or third party accidents.

 

3.   Using technology in the driver’s seat

If a driverless car no longer requires the concentration of the driver to operate, there may be room for reconsideration of current nation-wide rules against the use of mobile devices and technology in the driver’s seat.  For the time being, this is unlikely, as in trial stages there must be a driver able to immediately take over control of the car in case of any difficulties.  Future developments in technology may, however, provoke serious reconsideration of these laws.  

 

4.   ‘Driving’ under the influence

Similarly, there may be potential for reconsideration of what it means to ‘drive under the influence’, where the person in the driver’s seat no longer controls the car.  Again, in the short-term this is unlikely, as the present safety and insurance standards set out in proposed driverless legislation require a licenced driver to be in the driver’s seat, and an easy and immediate way to switch off the driverless function.  This suggests that, for the time being, responsibility and liability will remain with the driver. 

Whilst still in early stages, the introduction of driverless cars is bound to create a new and interesting discussion about road laws in Canberra.  Such questions of legal liability are of equal concern to the manufacturers of these driverless cars – understandably hesitant to put driverless cars on the market until clearer answers of their own liability become available.   

Big win for small business

Friday, March 18, 2016

Are you that small business owner feeling the pressure of that retail giant next door?

Whether you are the small grocery shop who calls a supermarket a neighbour, or whether you are finding it hard to get into the business market for the first time, you may be in luck.

To the surprise of some, the Federal Government this week endorsed changes to competition laws by agreeing to implement the so called “effects tests” in relation to misuse of market power.

The idea behind the effects test is that the ACCC, where it is concerned that there is a significant degree of market power, will only have to prove that conduct has had the effect of reducing competition – as opposed to there being an intent to reduce competition.

The law concerning the misuse of market power is currently found under section 46 of the Competition and Consumer Act 2010 (Cth) which reads as follows:

A corporation that has a substantial degree of power in a market shall not take advantage of that power in that or any other market for the purpose of:

(a)  eliminating or substantially damaging a competitor of the corporation or of a body corporate that is related to the corporation in that or any other market;

(b)  preventing the entry of a person into that or any other market; or

(c)  deterring or preventing a person from engaging in competitive conduct in that or any other market.

 

The Courts have interpreted the use of the words “take advantage” to mean that big business can take whatever steps it likes as long as competitors, small or large, can also take those steps.  This interpretation has created problems for the ACCC in enforcing what many see as the real purpose of section 46 – not allowing big business to take advantage of their market power.

The Turnbull Government has committed to adopting the provision proposed in the Harper Review in full.  The proposed provision reads as follows:

A corporation that has a substantial degree of power in a market shall not engage in conduct if the conduct has the purpose, or would have or be likely to have the effect of substantially lessening competition in that or any other market.

 

The ACCC has long pushed for this change on the basis that it would assist in better scrutinizing businesses that try to damage competitors deliberately. Critics, however, believe it will stifle competitiveness and encourage inefficient businesses. There is also a belief that the changes will be difficult to enforce.

 

With all of this in mind, this week’s announcement that the Turnbull Government will legislate to fix this aspect of competition laws will no doubt continue to generate debate. The Exposure Draft is due our shortly, with the Bill to be introduced into Parliament later in 2016.

Policies and Procedures - can employers set and forget?

Wednesday, March 09, 2016

The short answer is no. It is vital that employers regularly review and update their policies and procedures. For example, changes in technology may cause amendments to be necessary to IT or social media policies. It is also beneficial to regularly consider whether policies and procedures meet the organisational requirements of the employer, for example are the procedures for dealing with conduct complaints clear and easy to follow?

 

However, it is equally as important that policies and procedures are not changed without proper notification and consultation with employees. Below are a couple of important considerations when it comes to implementing and updating your policies and procedures.

 

1.    Are the policies and procedures contractually binding?

 

Generally, the answer is yes. With this in mind employers should keep the following in mind:

 

(a)  Policies and procedures should only contain obligations on both the employer and the employee that you intend to be contractually binding. The consequence of including aspirational statements in policies and procedures is that they may be deemed binding on the employer as well as the employee.

 

(b) If the policies and procedures are contractually binding, it is also necessary for the contract to identify precisely how employees will be notified and consulted with respect to updates to the policies and procedures. For the contract to simply say that the policies and procedures will be applicable “as amended from time to time” is insufficient. Best practice dictates that some sort of system should be set out in the employment agreement for proper notification and consultation.

 

2.    Do employees actually know what the policies and procedures mean, and what changes are being made to them?

 

It is vital that employees are trained, including as part of the consultation process, on their obligations pursuant to the policies and procedures, and any amendments to those documents. It is not sufficient for employers to tell employees that they must comply with policies and procedures. They must be able to establish that the policies and procedures have been explained to the employees, and that they have had an opportunity to consider the documents and ask any questions about what they mean or what is required of employees.

 

Griffin Legal is able to provide assistance with the preparation or update or policies and procedures, as well as providing training to employees with respect to their obligations pursuant to the policies and procedures.

                   

               
       

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