News

News

Employment law update: Industrial manslaughter laws introduced

October 30th, 2017

Following two major tragedies in 2016 that resulted in the death of four patrons at the Dreamworld theme park and the death of two workers at the Eagle Farm racecourse, the Queensland Government has enacted new industrial manslaughter legislation aimed at reducing deaths in the workplace.

The changes make it a criminal offence where:

  1. a worker dies, or is injured and subsequently passes away; and
  2. either a person conducting a business or undertaking or a senior officer (any person who is concerned with or takes part in a corporations management) causes the death or was negligent about causing the death of the worker by their conduct.

In determining whether or not a person has been negligent about causing the death of a worker, the enquiry will focus on whether the standard of conduct of the person concerned departs from the standard of care expected in order to prevent death, and whether that same conduct is connected to the death.

A person conducting a business or undertaking who is convicted of the above offence faces a fine up to $10 million dollars, whilst a senior officer faces an imprisonment sentence of up to 20 years.

The new laws currently do not apply to the mining sector.

Given that the new laws have come into effect from 23 October 2017, it is timely for employers to revisit their obligations under Work Health and Safety legislation and review their policies and training to ensure that staff are aware of these obligations.

For further information on Work Health and Safety contact our office today on 07 4036 9700.

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Belle Gibson, author of The Whole Pantry fined $410,000 for misleading and deceptive conduct

October 25th, 2017

Early this year, Belle Gibson was found by the Federal Court to have engaged in misleading and deceptive conduct and unconscionable conduct in relation to her promotion of her book and app “The Whole Pantry”.  Ms Gibson was made famous when it came to light that her story claiming that she had survived brain cancer through alternative treatments as outlined in her book and app were false.  It was further discovered that the charitable donations that her company promised to make from her book and app purchases were not made.

In September this year the Federal Court ordered Ms Gibson to pay a fine in the sum of $410,000.

Whilst this case is an extreme example of misleading and deceptive conduct in marketing and advertising, it serves as a timely reminder of the importance of ensuring the legitimacy of any claims made in marketing.

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SPOTLIGHT: Electronic transfer of deposits under contracts

October 23rd, 2017

In a recent decision of the District Court, it was held that a deposit that is electronically transferred is taken to be paid on the date of the transfer, not the date that the funds are cleared.

In this case the seller purported to terminate the sale contract on the basis that the deposit had not been paid ‘on the day the buyer signs the contract’.  The contract has been signed at 2.08 pm on 19 October 2016 and the deposit was transferred into the specified trust account by the purchasers at 8.30 pm that same day, however the funds did not appear in the trust account until the following day.  The sellers argued that because the funds did not appear until the day after the purchasers had signed the contract they were entitled to terminate.

The court in deciding that the deposit had been paid on the date the contract was signed emphasised that the purchasers were ready, willing and able to complete the contract which was indicated by their payment of the deposit on the date stipulated in the contract.

This is a timely reminder of how important it is to meet the timelines stipulated in contracts.  It may now be useful for agents to consider specifically dealing with when electronic funds will be deemed to be received in the terms of the contract.

Please contact Miller Harris Lawyers on 07 4036 9700 if you require any further information on this issue.

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The ACCC issues the first proceeding under the new unfair contract regime

October 10th, 2017

Consumers and small businesses are often presented with standard form contracts and lack the time, expertise and bargaining power to critically analyse and negotiate the terms of these contracts.  As a result, on 1 January 2011, the Australian Consumer Law (“ACL”) was introduced.  The ACL provides a uniform framework for the protection of consumer rights through multiple protections including the power of a court to void unfair terms in a standard form contract.  On 12 November 2016 these provisions were extended to small business contracts where the business employs fewer than 20 employees and the upfront price payable under the contract is less than $300,000.00.  The ACCC has recently issued its first proceeding against JJ Richards & Sons under this regime claiming that provisions of their standard form contract are unfair.

What are unfair contract terms?

A term of a contract is unfair if it:

  1. would cause a significant imbalance in the parties’ rights and obligations arising under the contract;
  2. is not reasonably necessary to protect the interests of the party who would be advantaged by the term; and
  3. would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.

If a term of the contract is found to be unfair by the court, it will be declared void and of no effect.

The background to the proceeding

JJ Richards and Sons are one of the largest privately‑owned waste management companies in Australia.  It is alleged that in April of this year, it entered into standard form contracts containing eight clauses which the ACCC claim are unfair.  They are clauses that:

  1. provide that the contract term automatically renews unless the small business terminates within the last 30 days of the existing term;
  2. allow JJ Richards to unilaterally change its prices during the contract term;
  3. seek to clear JJ Richards of any liability for breach of the contract if they fail to deliver services on time;
  4. require the customer to apply for a credit where JJ Richards fails to provide the services, yet JJ Richards only has to use its best endeavours to provide services within agreed times;
  5. prevent the small business from obtaining waste management services from another party during the contract term, even if those services are not already being provided by JJ Richards;
  6. require the small business to pay their invoices within seven days. If they do not do so, JJ Richards can suspend their services but continue to charge them;
  7. require the small business to provide an unlimited indemnity to JJ Richards, even if the small business does not cause the loss sustained; and
  8. prevents the small business from terminating the contract if monies are owed to JJ Richards and allows JJ Richards to continue charging the small business for equipment rental after termination even if the services are no longer being provided.

ACCC is seeking declarations that these eight clauses are unfair and void.  It is also seeking an injunction to prevent JJ Richards from relying on those terms in future contracts with small businesses.

This action is a timely reminder that parties who are using standard form contracts should seek legal advice about whether the unfair contract regime applies and if so, whether the provisions of those contracts would be in breach of those obligations and void.

For advice in relation to your individual circumstances, please do not hesitate to contact our Senior Associate, Melanie Husband on 07 4036 9700.

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