News

News

Major reform of labour hire in Queensland

November 30th, 2017

The time has come for many businesses to prepare for the introduction of the Labour Hire Licensing Act 2017 (QLD).

This Act breaks new ground in regulation and is a first for any Australian jurisdiction.  The Act has the potential for very broad application.  It applies to anyone who provides labour hire services.  A party will provide labour hire services if, in the course of carrying on a business, the party supplies, to another person, a worker to do work.  The Act is broad enough to include any worker outsourcing, including secondment.

The Act was passed on 13 September 2017. It has not commenced operation.  The existing proclamation anticipates that the Act will commence operation on 16 April 2018.  The Act provides for a 60 day transitional period after commencement to allow for parties to make application to become licensed.  The penalties for operating an unlicensed labour hire business are significant ($378,450 for a corporation).

The chief executive may grant an application for a licence only if the chief executive is satisfied that:

1.           each of the following persons are fit and proper persons to provide labour hire services;

a.           each applicant;

b.           if a proposed nominated officer for the application is a person other than an applicant—the proposed nominated officer;

c.           if an applicant is a corporation—the corporation and each person who is an executive officer of the corporation; and

2.           the business to which the application relates is financially viable; and

3.           the business will comply with its legislative requirements, including the Work Health and Safety Act and the Workers’ Compensation and Rehabilitation Act 2003 (Qld).

The term executive officer, is very broadly defined.  It means any person (by whatever name called, and whether or not the person is a director of the corporation) who is concerned, or takes part in, the management of the corporation.  It suggests that businesses need to think very carefully about both the structure of their business, and compliance management.

In deciding whether a person is a fit and proper person to provide labour hire services, the chief executive must have regard to the following matters:

1.           the person’s character, including, for example, the person’s honesty, integrity and professionalism;

2.           whether the person—

a.           has a history of compliance with relevant laws; or

b.           is able to demonstrate an ability to comply with relevant laws;

3.              whether the person has previously held a licence that has been cancelled or suspended, or for which conditions have been imposed under section 29(1);

4.              whether the person has been convicted of an offence against a relevant law or another law that affects the person’s suitability to provide labour hire services;

5.              if the person is an individual—whether the person has been an insolvent under administration;

6.              whether a corporation has been placed into administration, receivership or liquidation while the person was an executive officer of the corporation;

7.              whether the person has been disqualified from managing corporations under the Corporations Act;

8.              whether the person is under the control of, or substantially influenced by, another person whom the chief executive considers is not a fit and proper person to provide labour hire services; and

9.              any other matter the chief executive considers relevant in deciding whether the person is a fit and proper person to provide labour hire

There are a many issues to think about here. Any business that may be affected needs to begin planning, including making application for a licence. It is expected that licences will be for a term of only 12 months, and may cost as much as $5,000 (for a corporation).

If you need assistance with this process, please let us know.

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What does the ‘Yes’ vote mean for family law?

November 16th, 2017

Yesterday marked a significant milestone in Australian history, with the result of the Marriage Law Survey being released.  Once same-sex couples are legally able to marry there will be minor ripple effects in family law practice.

It will make property proceedings for married same‑sex couples who are separating more simplified as they will no longer have to establish that they satisfy the criteria of being in a de facto relationship.  It will also allow same‑sex couples who were married in another country to apply for a divorce in Australia once they can establish that they have been separated for the threshold time limit of 12 months.  Previously it was not possible for same‑sex couples married in another country to be granted a divorce order in Australia which created many problems.

 

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Attorney-General commissions a comprehensive review of the Australian Family Law system

November 14th, 2017

Attorney-General the Honourable George Brandis QC recently commissioned the Australian Law Reform Commission to comprehensively review the Australian Family Law system

Professor Helen Rhoades has been appointed to lead this comprehensive review, which will focus on various issues faced by separated families including long delays in the court system and the financial burden of family law disputes, as well as how best to deal with the families of today and the issues they face; noting the Family Law Act 1975 was brought in over 40 years ago.

The review process will involve public consultation as well as consultation with family law experts.

The report will be released in 2019 and is very much welcomed by the family law legal profession.

For more information, visit the Attorney General’s website:

For more information about this issue and all family law matters, please contact our Senior Associate, Julie Hodge on 4036 9700, or visit our website.

Julie Hodge
Senior Associate
Miller Harris Lawyers

Telephone:  07 4036 9700
Email:  juliehodge@millerharris.com.au

Voted into 2016 and 2017 Doyles list of leading Family and Divorce Lawyers

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Important deadline for those operating in the tourism industry

November 10th, 2017

The Best of Queensland Experiences program was launched by the State’s Regional Tourism Organisations and Queensland Tourism Industry Council to identify the best experiences available within Queensland for visitors.  Those who are accepted into the program may in the future feature in promotional activity.  It is also expected that the program will feature throughout the Commonwealth Games.

To be assessed for the program, you must ensure that your product listing and details are up to date on the Australian Tourism Data Warehouse before 13 November 2017.

More information is available here.

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High Court affirms difficulty in creating a binding pre-nuptial or post-nuptial agreement

November 9th, 2017

The High Court has allowed an appeal which demonstrates the difficulty faced by parties wishing to enter into a binding pre-nuptial or post-nuptial agreement that deals with their respective property in the event that the parties separate in the future.

The parties in this case met online through the use of a dating website.  The husband at the time was approximately 67 years old and was extremely wealthy (he had assets between $18 and $24 million dollars).  The wife was 36 years old, living in the Middle East and had no assets.

Prior to the relationship commencing the husband had told the wife that once he had met her, if he liked her he would marry her, but that she would be required to sign an agreement because his money was for his children.

After the parties had been together for around seven months, the wife flew to Australia to live with the husband and they started planning for their wedding.  Just prior to the wedding, after the wife’s family had already been flown to Australia to attend, the husband asked the wife to sign a pre-nuptial agreement.  Consistent with the requirements of the Family Law Act (“Act”) the wife obtained independent legal advice, which was to the effect that the agreement was the “worst agreement” the lawyer had ever seen.  On the advice of the wife’s lawyer minor amendments were made to the agreement but the lawyer still recommended that the wife did not sign the agreement.  Despite this advice the wife still executed the agreement.

After the wedding the wife also executed a post-nuptial agreement in substantially similar terms to the pre-nuptial agreement, which was required to be executed by a term in the pre-nuptial agreement.  Unfortunately after three years of marriage the parties separated and three years after separation, during the course of the trial, the husband passed away.

The High Court upheld the decision of the primary judge that the agreements were null and void finding that the wife effectively had no choice and was powerless against the husband because:

  • the wife lacked financial equality with the husband;
  • the wife was at a significant disadvantage having left everything behind to move to Australia without a visa to marry the husband, and had no way of returning home;
  • the wife relied on the husband to support her absolutely;
  • the wife was influenced by her emotional connection to the husband and the prospects of motherhood; and
  • the agreements were presented to the wife at a time just before the wedding when her family had already flown over to attend and the husband had made it clear that the wedding would be cancelled if she did not sign.

The above circumstances were held to amount to undue influence and unconscionable conduct by the husband.  The wife will now continue her application for property adjustment and lump sum maintenance in the Federal Circuit Court against the estate of her late husband.

Interestingly no submissions were made regarding the restriction in the Act which prevents parties from excluding a court from making a maintenance order if, when the agreement came into effect, the disadvantaged party was unable to support himself or herself without an income tested pension.

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Be Games Ready – Business Mentor Chats – Preparing for the Commonwealth Games

November 9th, 2017

Cairns is set to host the Commonwealth Games basketball heats in April 2018.

During the month of November the Queensland Government is offering free mentor chats with experienced business mentors to businesses operating in Queensland to discuss how businesses can make the most of the opportunities presented by the Commonwealth Games. More information and tips are available on the Queensland Government webpage.

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Attention small business owners – government grant open for professional advice and support of up to $5,000.00

November 8th, 2017

The Queensland Government is currently accepting applications for the Small Business Entrepreneur Grants Program.  This program is aimed at providing small businesses with access to legal and financial advice along with planning, coaching and training to assist through the early critical stages of establishing a business.

The grant offers to match the contribution of a business for a project up to $5,000.00.  The minimum amount that the business must be willing to contribute is $1,000.00.  This is a fantastic opportunity for small businesses to gain vital assistance in running and developing their business.

To be eligible your business must:

  • have registered a business name within the last four years;
  • have fewer than 20 employees;
  • have an Australian Business Number; and
  • be based in Queensland.

If successful, the business must complete the program that the grant relates to within three months of the date of approval.

As part of the application you must include a proposal and quote from the service provider that you wish to engage.  If you would like more information on your eligibility for the grant and what type of services we can offer to assist your business contact our office today on 07 4036 9700.

Applications close at 5.00 pm on 21 November 2017.  More information on the grant is available on the Queensland Government website.

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High Court decides question of eligibility for election of dual citizens

November 2nd, 2017

On 27 October 2017, the High Court confirmed that any candidate who at the time of their nomination for election was a citizen of a foreign country is not eligible to be chosen to sit as a senator or a member of the House of Representatives.

The court determined that at the date of their nomination for election, Mr Scott Ludlam, Ms Larissa Waters, Senator Malcolm Roberts and Senator the Honourable Fiona Nash were all disqualified due to their dual citizenship.  The votes that each of these parties received in the 2016 election will now be attributed to the next candidate in the same parties list.  As to the Honourable Barnaby Joyce, Mr Joyce was also found to be disqualified and a by-election will need to be held to fill his vacant position.

Senator Nick Xenophon was not disqualified as his ‘British Overseas Citizenship’ did not entitle him to the rights and privileges of citizenship as he was not permitted to enter and live in the United Kingdom.  Senator the Honourable Matthew Canavan was also held not to be disqualified as whilst he may have been entitled to registration as a citizen of Italy, he was not an Italian citizen at the date of his nomination.

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New decision sheds light on the question: who keeps the engagement ring when parties separate prior to marriage?

November 1st, 2017

The question who keeps an engagement ring when a couple separate prior to marriage has been an unresolved issue for some time.

Until recently, the key authority on this point was the old English decision of Cohen v Seller which held that an engagement ring is a gift given for the promise to marry, and if the promise of marriage is not fulfilled then it is implied that the engagement ring will be returned.  This decision was more recently applied in the decision of Papathanaspoulos v Vacopoulos, in that case a man had proposed to a woman who subsequently rejected the proposal by throwing the engagement ring in the garbage.  In applying Cohen v Seller the Supreme Court of NSW held that if the woman did not intend on fulfilling the condition of accepting the ring (ie. marriage) then she ought to have returned the ring.

The Local Court in NSW in Toh v Su [2017] NSWLC 10 has departed from this old English authority.  Magistrate Brender held that:

  • the no fault rule under the Family Law Act means that it is not relevant to consider who decided to break-off the marriage; and
  • the treating of an engagement ring as a gift conditional upon marriage is not consistent with the ‘essential philosophy’ of the Family Law Act or modern concepts of marriage.

The court held that the engagement ring was a gift given absolutely during a time of happiness, and that the parties at that time did not intend to form a legally enforceable contract.  It was therefore not necessary to return the ring after the parties had separated.

The court did however find that the parties were required to return the wedding bands to each other that they had purchased as these rings were being held by the other party for safe keeping until the wedding and were not given as gifts.

Whilst this case sheds light on the question of who gets to keep the engagement ring after separation, ultimately given the conflicting authorities the question remains unresolved.

 

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