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Important legal information about redundancy

July 14th, 2020

Redundancy – Is it genuine?

During these times of economic uncertainty, redundancy could, understandably, be on your mind.  As a business owner, you might be faced with the difficult decision to reduce employee numbers.  If you are an employee at risk of redundancy you may be wondering what your options are.

In either case, it is important to understand whether any redundancy is a “genuine redundancy”, or a termination on other grounds.  If a termination is a case of genuine redundancy, and the proper steps are followed, then the ensuing dismissal will not be unfair.

A genuine redundancy occurs where:

  • the employer no longer needs the employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise;
  • the employer has complied with any obligation to consult with the employee about redundancy (if an award or enterprise agreement requires consultation about major workplace change); and
  • the employee could not be reasonably redeployed in the employer’s enterprise or that of an associated entity.

Changes in redundancy requirements

There are many things that might happen in a business which could be described as a “change in operational requirements”.  It is a very broad concept.  Some examples include:

  • a downturn in trade that reduces the number of employees required;
  • technological development;
  • restructuring a business for the sake of efficiency, which reduces the number of positions available;
  • closure of the business; or
  • outsourcing of the employee’s role.

The key question is whether anyone needs to do the employee’s job in the face of the organisational change.  It may be that a particular job is no longer required to be performed even if some of the duties associated with that job are still being performed by other employees or have been outsourced to contractors.

Redundancy consultation

There is usually a requirement in modern Australian awards and enterprise agreements for an employer to consult with affected employees about impending redundancy.

Where an employer has  an obligation to consult, it is very important that the obligation is fulfilled.  Even if all other requirements have been met, a redundancy can still be an unfair dismissal if the proper consultation process is not followed.

Redeployment or redundancy

The final question is, whether it would be reasonable to redeploy a redundant employee into another role, instead of making the employee redundant.  Relevant factors include:

  • if any other job is available and, if so, the nature of that position;
  • the qualifications and experience required to perform the job;
  • the location of the job in relation to the employee’s residence; and
  • the remuneration which is offered.

If thinking about, or faced with redundancy, make sure that it is a genuine redundancy.  A failure to implement and follow a proper process of evaluation and consultation may raise the prospect of unfair dismissal, and the legal remedies and ramifications that go along with it.  If you have any queries, talk to our experienced team today on 4036 9700.

Please note these comments apply to employees covered by the Fair Work Act redundancy provisions.

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What you need to know about the new Federal HomeBuilder grant

June 16th, 2020

Federal HomeBuilder grant 2020

The Australian Government has recently announced a new “HomeBuilder grant” to boost the Australian economy, particularly the construction industry, in light of the Coronavirus pandemic.

The new HomeBuilder grant provides eligible homeowners and first home buyers with a grant of $25,000.00 to build a new home or significantly renovate an existing home.

HomeBuilder requirements

The following eligibility requirements apply:

  1. you must be an Australian citizen (not resident);
  2. you must have an annual income of $125,000.00 or less or, for couples, your combined income in the last financial year must be $200,000.00 or less;
  3. the building or renovation contract must be entered into and signed between 4 June 2020 and 31 December 2020 and work must commence within three months from the contract date (current projects do not qualify);
  4. for new buildings, the value of the home (including land) must not exceed $750,000.00; and
  5. for renovations:
    • the renovation must be valued between $150,000.00 to $750,00.00;
    • the pre-renovation value of the home must not exceed $1.5 million dollars excluding fixtures such as sheds and granny flats; and
    • some renovations are not covered such as adding a pool or detached garage.

HomeBuilder eligibility

Eligible homeowners will be able to apply for the HomeBuilder grant when their relevant State or Territory Government implements the grant.

The HomeBuilder grant is a temporary scheme which applies alongside existing first-home and home‑owner grants.  You can register your interest to receive updates when more information is available on the Australian Government Treasury website.

The existing Queensland First Home Owners’ Grant provides $15,000.00 towards purchasing or building a new house or apartment where the value of the home (including the land) is less than $750,000.00.  These grants have their own eligibility criteria.

First homeowners

First homeowners may also qualify for stamp duty concessions, and the federal government’s first-home loan deposit scheme and first-home super saver scheme.

If you are considering purchasing, building or renovating property and have any questions concerning the grants that may be available to you, please do not hesitate to contact our team of experienced property lawyers on (07) 4036 9700 or enquiries@millerharris.com.au.

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Separated but living under one roof? Here is what you need to know

May 26th, 2020

One impact of Coronavirus may be that more people find themselves separated from their spouse, but continuing to live together for a period of time.  In family law this is coined “separation under one roof” and there are important consequences to be aware of.

The most important thing about separating under one roof, is determining the actual date of separation.  This is typically the date where one spouse has the intention to separate, and that intention is clearly communicated to the other spouse.  There are many ways in which an intention to separate may be communicated and relevant factors include:

  • details of any conversation about separating between the spouses;
  • separating finances, including opening personal accounts and ceasing use of joint accounts;
  • a change in sleeping arrangements and living arrangements;
  • communication of separation to friends and family;
  • living separate social and public lives;
  • cessation of performing household duties for each other;
  • cessation of a sexual relationship; and
  • notifying government departments that you are separated, such as Centrelink.

It is also important to consider whether there has been any reconciliation of the relationship after the date that separation has initially been communicated.  Whether or not reconciliation has occurred can be a grey area requiring specific advice based on your circumstances.

The date of separation is very important as it triggers the following time limits for family law matters:

  • For married couples: You are only eligible to apply for a divorce 12 months after the date you separated. Once a divorce order is obtained, a further 12 month time limit is triggered for resolving all property division and spousal maintenance matters.
  • For de facto couples: You have two years after the date of separation to finalise both the division of your property and any spousal maintenance matters.

If property and spousal maintenance issues cannot be agreed to and formalised according to the requirements of the family law legislation, within the above time limits, then it may be necessary to commence court proceedings prior to the time limit expiring to protect your interests.

We recommend that you diarise the date that you have separated, including details of the separation and obtain independent legal advice as soon as possible after separation.

Our experienced family law team is here to help and can be contacted on 07 4036 9700 or enquiries@millerharris.com.au.

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Businesses beware! Business name renewal invoice scams

May 21st, 2020

Many business owners carry on business using a registered business name.  Registered names need to be renewed from time to time.  Private company service providers now have access to the business names register information, and some offer “renewal services”.  Unfortunately, some of these service providers are sending business owners “renewal notices” which look very much like official renewal notices or invoices from the registry, and call for payment more than double the fee to renew directly with ASIC.  No doubt they hope that businesses will simply put the “renewal notice” into their payment systems without question.

You do not have to pay for renewal through these service providers.

It is cheaper and just as easy to renew through ASIC.

Renewing your business name through ASIC is cheap, easy and quick.  You can visit their website at asic.gov.au.

ASIC sends a business name renewal notice at least 30 days before your renewal is due.  We recommend that you bin all other renewal notices received from anyone other than the ASIC.

ASIC provides the option of renewing your business name for either:

  1. one year, which costs $36.00; or
  2. three years, which costs $85.00.

Other service providers charge more than double the amount required by ASIC.  Please contact us if you are uncertain whether an invoice from a service provider is legitimate or not.

Do you need a business name?

You are required to register a business name if you are trading under a name that is different from your own name or your company’s name.

It is important to have a business name which is currently registered.  Carrying on business under a name which is not your own name, and not registered as a business name, is an offence.  It is also possible that someone else might register the name which you are using, leading to confusion and disputes.

If you have any questions concerning the operation of your business, please do not hesitate to contact our experienced team on 07 4036 9700.

Wishing you all the success for your business!

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Are your super and life insurance beneficiary nominations up to date?

May 5th, 2020

If you have finished (or are well and truly over) ‘Marie Kondo-ing’ your home, now is a good time to ensure that your superannuation and life insurance beneficiary nominations are in place and up to date.

What a lot of people don’t realise is that your superannuation and life insurance do not typically form part of your estate in the first instance to flow through your will.

In order to direct who your superannuation and life insurance is to go to, you should have beneficiary nominations in place with your superannuation funds and life insurance companies.

If you do not have a binding death benefit nomination in place (or your nomination has expired), the trustees of your superannuation fund have discretion to determine who they pay your superannuation death benefit to and in what amount, which may or may not be in accordance with your wishes.  Also, these nominations usually lapse every 3 years.

It is important that you read the beneficiary nominations carefully when completing as, while they may appear to be simple forms, they are still legal documents that require certain elements to be met in order to be binding and effective.

If you have any questions or would like assistance preparing your superannuation and life insurance beneficiary nominations, please do not hesitate to call our office on 4036 9700.

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COVID-19: The impacts of Coronavirus on family law and parenting

April 28th, 2020

Co-parenting can be difficult at the best of times.  The additional uncertainty and significant changes in response to the global pandemic will see parents face new challenges.

The message from the courts is that where possible parents should continue to comply with existing court orders.  It is not clear at this stage, what the courts will consider a reasonable excuse for not complying with a parenting order in the context of the pandemic.  Parents are being encouraged by the courts to use their common sense and to act reasonably as new challenges present as a result of the pandemic.  Communication will be crucial as parents navigate through the temporary restrictions in place, particularly in relation to travel and quarantine.

If orders cannot be complied with, or parents seek to change arrangements during the pandemic, parents should, in the first instance, try to reach an agreement in writing with the other parent about what is to occur, including consideration of makeup time if time is not proceeding in accordance with orders.  Parents are being reminded by the courts that they should always prioritise the best interests of the children, their health, safety and wellbeing.

If you are in a situation where you believe that you are unable to comply with court orders and the other parent does not agree, and the issue cannot be resolved between you, you should seek legal advice.

Parents should attempt to work through issues reasonably and sensibly to prevent any more distress during this time.  They should keep each other informed about any health issues or concerns as they arise.  If issues arise that cannot be resolved, they may be able to be negotiated through lawyers or through alternative dispute resolution services, such as mediation which continue to be offered remotely.

Travel restrictions

The latest direction from the Queensland Chief Health Officer permits persons to cross the border for the following purposes:

  • to continue existing arrangements (such as parenting plan arrangements) for children under 18 years to have contract with their parents and siblings who they do not live in the same household with (but contact with vulnerable groups, such as persons over 70 years, is not permitted);
  • to provide care or support to an immediate family member; and
  • to attend any court of Australia or to comply with court orders (including parenting orders).

The courts and the government are continually reviewing and updating travel restrictions, so it is always best to obtain advice on the current arrangements that apply to your situation.

Our lawyers are continuing to advise clients on all family law matters.  Please do not hesitate to contact us on 07 4036 9700 if you have any questions or concerns regarding your family law matter during this difficult time.

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Making the transition to retirement living – 4 questions you might have about manufactured home parks

April 23rd, 2020

Cairns is soon to introduce its newest (and first) land lease community, also known as a manufactured home park.  The Botanica Lifestyle Resort is the first of its kind in Cairns and a new option for those looking to make the transition to retirement living.

There are a number of options for those wanting to move into retirement living including moving into a retirement village (and the various iterations of retirement villages) or a manufactured home park.

What is a manufactured home (or a land lease community) and how is it different from other retirement living options?

One of the main differences between a manufactured home (or land lease community) and regular home ownership is that you do not own the land on which your house is placed, you rent it.

You do however own the home that you reside in, which differs from most retirement villages where you lease or licence the unit or villa that you live in.

Depending on how the home is constructed, one of the features of a manufactured home park is that you can physically move the home to another location if you wish.  That may not be practical however depending upon the characteristics of the house.

What is included?

There are a number of benefits to purchasing a home in a manufactured home park over traditional land ownership, including:

  1. the access to a community of people of a similar age and with similar interests; and
  2. various community facilities including sporting areas, parks, restaurants, pools and event spaces.

Because you actually own the home you will live in, you also have more freedom in how you keep and manage it, subject to the rules of the park.

A manufactured home is also a capital asset that you can sell in the future, and as you will own the home in the park you will be able to leave it as an asset in your will.

What rights do I have?

Manufactured home parks are governed by the Manufactured Homes (Residential Parks) Act 2003, and that act contains numerous protections for those wishing to adopt that style of living.

Among the protections is an indefinite lease period in most cases, meaning that not only can you reside at the property for as long as you want,  you have the flexibility to terminate the arrangement whenever you are ready to move on.

The legislation also requires that the operator of the park allow cooling off periods and provide extensive disclosure to you about the costs involved in living in the park, the facilities that will be provided, and your obligations when living in the park.

What happens when I am ready to move on?

When the wander bug strikes again and it is time to move on, a manufactured home can present more options than a traditional retirement village.

Depending on the construction of the home, you may choose to terminate the rental arrangement with the operator and move your home somewhere else.  You also have the option, and it may be a more  practical one, to sell the property.  Such a sale will need to involve the park operator though as they will need to consent to any new owner.

You are entitled to receive any capital gain on the sale of your property as you own it and unlike exit from a retirement village, there is no exit entitlement or lump sum payment that you need to pay to the operator when you move on.

If you wish to move on but cannot sell the property, and it is not practical to physically move the property to another location, questions may arise as to what may be done with the property.  You should carefully consider the terms of your site agreement with the operator as this will largely determine what your obligations on exit will be.

Entering into an agreement to reside in a home in a manufactured home park is a big decision and there are a number of different factors that you should consider before signing on the dotted line.  Seeking legal advice on the agreement is a must!

Our experienced commercial lawyers are able to assist with any enquiries about manufactured home parks or retirement villages so call us today on 07 4036 9700.

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Commercial Landlords and Tenants: impacts of pandemic lockdowns

April 9th, 2020

The Commonwealth Government yesterday announced the mandatory code of conduct for commercial leasing.

The code is intended to alleviate the impact of government implemented measures to combat the COVID-19 pandemic.

To be eligible for the code to apply, an individual, business or company must show:

  1. a 30% reduction in revenue compared to a similar time last year; and
  2. an annual turnover of less than $50 million.

Businesses eligible for the JobKeeper program are automatically eligible for the code of conduct.

The code encourages tenants and landlords to adhere to, and apply as soon as practicable, good faith leasing principles for the duration of the code, which will remain in place as long as the JobKeeper program remains in place.

Among those principles are:

  1. landlords must not terminate leases due to non-payment of rent during the period of the COVID‑19 pandemic and a reasonable subsequent recovery period;
  2. tenants must remain committed to the terms of their lease, and a failure to abide to the terms of the lease may forfeit any protection by the code;
  3. landlords must offer tenants a reduction in rent proportionate to the downturn in the tenant’s business, this is likely to be between 30% and 100% of the rent;
  4. at least half of the reduction must be a waiver of rent, with the remainder able to be a deferral, where the tenant pays it to the landlord over the remaining term of the lease (or a minimum of 24 months);
  5. landlords should also pass on where practicable the effects of any financial assistance received, including alleviation of loan repayments;
  6. landlords should where appropriate seek to waive recovery of other expenses and outgoings against tenants, and can choose to reduce services provided to the tenants;
  7. landlords must not draw on a tenant’s security for the non-payment of rent during the period of the code;
  8. the tenant should be provided with the option to extend the lease for the same period as it was non-trading; and
  9. landlords must freeze rent increases (except for those based on turnover rent) for the period of the pandemic.

If agreement cannot be reached between the landlord and the tenant as to the above arrangements (including as to the amount of any waiver), the matter must be referred to mediation.

The measures prescribed above, and others in the code, seek to ensure that businesses are able to survive and continue trading when the pandemic reaches its end.

The code has an effective date as of 3 April 2020, but will not apply in Queensland until such time as it is enacted by parliament.  There is no prescribed time for this, but it is expected to be as soon as possible.

The code will only cease to apply when the JobKeeper program no longer applies and the pandemic is deemed to be over.

While this announcement will bring welcome relief for tenants, its implications in the long run may be uncertain. If you have any questions or concerns regarding your rights and obligations under the Code, you should contact our experienced commercial and property law team as soon as possible.

 

Checklist for Commercial Tenants

  • Get your business records in order so that you can demonstrate the impact of the COVID-19 measures on your business;
  • Speak to your accountant about the financial impact, and what can be done to minimise it and allow you to recover;
  • If applicable, register for the Jobkeeper Program;
  • Consider what you are realistically going to be able to do financially over the next six months or so, and come up with a proposal regarding the lease. Make sure it is fair, and is able to be justified based on your business records.  It may be useful to involve your accountants and lawyers in this process;
  • Start negotiations with your landlord to try to find an acceptable solution for both of you to get through this difficult period. Bother parties need to be honest and negotiate in good faith.
  • Do not just stop paying rent or expect your landlord to stop charging rent and outgoings. Doing so will mean that you lose the protection the government is offering.
  • Ensure that any agreed outcome is recorded in writing, and that changes to the leases are reflected in formal, enforceable documentation. Your lawyers should be engaged to do this.

 

Checklist for Commercial Landlords

  • Be pro-active. Contact your tenants and see how they are impacted.  Starting early might make the situation more manageable rather than waiting until there are few options left.
  • Speak with your bank about what your options are if the tenants are unable to pay the full rent. Can the bank help with repayment holidays or converting to interest only, or other measures?
  • Consider your outgoings and other holding costs – are there savings or deferrals which may be available?
  • If your tenants are adversely impacted, ask them to show you some financial information to show what that impact is, and what sort or relief they may be looking for;
  • Engage in negotiations with the tenant. Remember that you will both have an obligation to negotiate honestly and in good faith, and that is it likely to be better to have a viable tenant at the end of pandemic period, than be looking for a new tenant in what is likely to still be a difficult market.
  • Ensure that any agreed outcome is recorded in writing, and that changes to the leases are reflected in formal, enforceable documentation.  Your lawyers should be engaged to do this.
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Am I in a de facto relationship?

March 17th, 2020

As a family lawyer, I am regularly asked the question – am I in a de facto relationship?

The answer to this question is not as simple as you might expect.  A person will be considered to be in a de facto relationship if, having regard to all of the circumstances of the relationship, they have a relationship as a couple and are living together on a genuine domestic basis.

The most well-known test for determining whether two people are in a de facto relationship, is whether they have been living together as a couple for more than two years.  However, a couple can be living together for less than two years and still be considered to be in a de facto relationship.  Other factors that need to be considered include:

  1. the duration or length of the relationship;
  2. the nature and extent of their common residence;
  3. whether a sexual relationship exists;
  4. the degree of financial dependence, interdependence or financial support between them;
  5. ownership, use and acquisition of property;
  6. the degree of mutual commitment to a shared life;
  7. whether the relationship was registered;
  8. the care and support of children; and
  9. the reputation and public aspects of the relationship.

The most common situations in which people may be found to be in a de facto relationship, despite not living together as a couple for more than two years are where:

  1. the couple have a child together; or
  2. the couple have intermingled their finances, such as by purchasing a property together.

A lot of people want to avoid being in a de facto relationship because they believe that this will automatically entitle their partner to a share of their assets.  It is important to note that even if you are considered to be in a de facto relationship, this does not necessarily mean that your partner is entitled to a share in your property or assets.  The court must first determine whether or not an adjustment of property between the spouses is necessary to do justice between them, based on their respective contributions to the relationship and their future needs.  In some circumstances the court will not intervene if the property interests as they stand are just and equitable.

If you would like to discuss your relationship, property settlement or obtain advice on your family law matter, contact one of our Cairns and Mareeba family lawyers today.

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The truth about why you need an enduring power of attorney

February 25th, 2020

The importance of an enduring power of attorney is often overlooked because people believe that their spouse or next of kin will be able to look after their affairs if they were to lose capacity. The truth is, it would be very difficult for your loved ones to deal with your affairs if they are not appointed as your attorney.

Let’s use the example of Jane and Tom:
• Jane and Tom are in their mid 50’s.
• Tom works full-time and Jane works part-time.
• Jane and Tom own their family home jointly.  There is a mortgage over their property.
• Tom is involved in a car accident and suffers serious brain injuries. As a result, Tom is unable to make decisions for himself and requires care on a full time basis.
• Jane is unable to care for Tom on a full-time basis and cover the mortgage repayments.  Jane decides to sell the family home and move Tom into a care facility.
• Jane contacts a real estate agent to list the property, however the sale comes to a standstill when Jane encounters a problem; Jane and Tom do not have enduring powers of attorneys.
• As Jane is not appointed as Tom’s attorney, she is unable to sign the contract for sale or transfer documents on Tom’s behalf to effect the sale of the property.

The consequence of not having an enduring power of attorney in place means that an interested party (i.e. family member or friend) would need to make an application to the Queensland Civil and Administrative Tribunal (“QCAT”) to be appointed as the administrator for financial matters and/or guardian for personal and health matters. So in the scenario above, Jane would need to make this application to have the power to sell their property. This process is stressful and can be costly.

If no one is willing to take on this responsibility then the Public Trustee and the Public Guardian may be appointed to take control of your affairs. There is also the risk of these statutory offices being appointed if there is a dispute between family members about who is the most appropriate person(s) to act.

The reality is, any person can unforeseeably lose their capacity at any time during their life. Wouldn’t you prefer to appoint someone who you trust to look after your affairs if this situation were to arise?

If you would like to avoid this problem for relatively little time and money, please do not hesitate to contact us to set up your enduring power of attorney.

Get your affairs sorted today.  Contact our Mareeba wills and estate lawyers on 07 4092 3555.

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