Dooley Blog

Changes to Court and Commission Names

Mon, 20 May 2013 14:00:00 GMT

2013 has seen further changes to the face of the court system in Australia. Name changes have taken place and some of the functions of the Commissions and Courts have changed to more effectively serve and service the needs. Listed below are two major areas of change affecting employment and family law in Australia.

1. Fair Work Australia (FWA) is now known as the Fair Work Commission. This independent body covers a number of functions, including:

Minimum wage and employment conditions;
Enterprise Bargaining;
Industrial action;
Dispute resolution; and
Termination of employmen.

The FWC has also been given further powers. These include:-

The ability to dismiss applications when settlement has already been reached;
Dismissal of proceedings if an applicant fails to attend a hearing;
Dismissal of a non-compliant application;
The issue of a costs order for unreasonable failure to discontinue proceedings;
The issue of a costs order for failure to agree to terms of settlement; and
The issuing of a costs order if one party has acted or omitted to act in a manner causing further costs to be incurred.

The other significant change to the laws of the Fair Work Commission involves the time limit for lodging claims.

- Unfair Dismissal Claim – The time limit for lodging an unfair dismissal claim has increased from 14 days to 21 days
- General Protections Claim – Previously 60 days, this has now been aligned with Unfair Dismissal claims at 21 days

2. The Federal Magistrates Court of Australia has also undergone a name change and is now known as the Federal Circuit Court of Australia. The Judicial officers will be know as Judges of that Court.

The Federal Circuit Court of Australia deals with both family law and general federal law matters. The majority of all family law matters are now heard in the Federal Circuit Court whilst the Family Court is now a more specialist Court dealing with appeals or complex family law cases.

Chief Judge, John Pascoe AO CVO says the aim of the changes to the name of these courts is to more accurately reflect the modern role in the federal court system.

Guarantees and Deceased Estates

Wed, 15 May 2013 14:00:00 GMT

It is not uncommon for parents to guarantee loans for children. Unfortunately doing so can have very serious consequences where a person dies and the liability under the guarantee has not been discharged. Click here to to check out the Best Practice Lawyer's recent blog about this issue.

Save our Sons Casino Royale

Mon, 13 May 2013 21:52:00 GMT

A fantastic night was had by all that attended the Save our Sons Casino Royale on Saturday night.

Over 1500 people attended and a significant amount of money will have been raised for a truely amazing charity.

Thank you to Nick Tropea (Causbrook & Associates), Hamish McIntosh (KMW Financial) and Lee Hagipantelis and his team from Brydens Law Office for joining us on our celebrity poker table with Mark Geyer.

A great way that you can show your support for Save our Sons and the sufferers of Duchenne Muscular Dystrophy is to sign their petition to the Federal Government to support the finding of a cure for this devastating disease. Go to the Save our Sons website and see how ‘The World’s Most Powerful Arm’ can sign the petition for you. Please act NOW as the petition ends soon.

National Law Week - 13 - 19 May 2013

Wed, 08 May 2013 14:00:00 GMT

National Law Week is an annual event aimed at increasing public awareness about the law, the legal system and the legal profession as well as educating the community about the legal services available in New South Wales.

Law Week is a registered charity administered by a board. The board is comprised of leaders from the New South Wales justice system.

Most people in NSW will come into contact with the legal system at some stage of their lives and Law Week provides advice about how to best access the law when this happens.

In addition, Law Week provides an opportunity for legal service providers throughout NSW to participate in programs and events that engage the public and highlight social issues in the community.

The theme for Law Week 2013 is ‘Law and justice in your community’.A community legal expo offering members of the public an opportunity to learn about the law, access a wide range of legal services will be held in Parramatta on Monday 13th May.

For a full list of events throughout law week with cover click here.

Supporting Business to do their Business

Mon, 06 May 2013 14:00:00 GMT

When you think of using a lawyer, chances are you think you have to have a problem to need one. Whilst this can be the case, a partnership with your lawyer can enable you to sail through the course of a business year prepared and aware, and assist you to avoid costly litigation from both internal and external stakeholders through inadequate or outdated procedures and documentation.

Changes in Industrial Relations laws alone have occurred regularly over the past few years as newly elected state and federal governments brought in sweeping changes to Industrial Relations laws and to the function and name of the mediating commissions.

So how does a business keep up with changes and know it is covered legally?

Having an relationship with a lawyer you know and trust is a good start. Dooley and Associates offer clients a range of Business Support which can start with a Free Business Health Check. To make it quick and simple, we will come to you at no charge. We will carry out an assessment of your business to identify areas you may need assistance updating or initiating. We’ll help you to identify areas you may not have considered which left alone, could present a future issue.

Contact us to arrange for one of our staff to conduct a Free Business Health Check for you and let us help you ensure you are meeting your legal obligations.

Superannuation – expectations and responsibilities

Wed, 01 May 2013 14:00:00 GMT

As the changes to Superannuation guarantee contributions nears, here is some timely information about who is eligible for superannuation and what you should now be expecting.

As of July 1st 2013, the new SG contributions will begin to rise annually as set out below:

Financial Year	% change per year	New Rate
2012-13		9.00%
2013-14	+ 0.25	9.25%
2014-15	+ 0.25	9.50%
2015-16	+ 0.50	10.00%
2016-17	+ 0.50	10.50%
2017-18	+ 0.50	11.00%
2018-19	+ 0.50	11.50%
2019-20	+ 0.50	12.00%

Australian employees who are eligible to be paid super guarantee payments include:

Employees aged between 18 and 70 years of age
Employees 18 years of age or over paid at least $450 gross per month
Employees under 18 year of age working more than 30 hours per week and paid $450 gross per month
Employees who receive a super pension or annuity whilst still working (including those in the transition to retirement stage)
Directors of a business who receive salary, wages or director’s fees
Family member working in a business and who meet the above wage and age criteria

Employees may be casual, part-time or full-time workers. Employers should also check to ensure eligible contractors are also paid entitlements correctly.

If you are an employee and believe you are not being paid the correct entitlements or you are an employer and are unsure of who you should be paying, contact Dooley and Associates to speak with us about your situation. One of our employment team will be happy to assist you.

Update on proposed Anti Discrimination Bill

Mon, 29 Apr 2013 14:00:00 GMT

On 4 March 2013, we published a blog highlighting the key impact the proposed Human Rights and Anti Discrimination Bill would have on business and industry if it were to be passed by Parliament into new law. Our blog also noted that it was unknown whether the new Attorney-General, Mr Mark Dreyfus, would support the Bill. Previous comments by the Attorney-General in January 2013 indicated he was unsure whether he would endorse the Bill.

On 21 March 2013, the Attorney-General formally acknowledged that he would not endorse the Bill in its current form. The Government agreed with the recommendations set out in the Senate Legal and Constitutional Affairs Committee's report on the draft Bill which advised Government that there remain several policy, definitional and technical amendments that require deeper consideration in the process of consolidating five bodies of anti-discrimination law into one. Instead of endorsing the hurriedly drafted Bill, the Attorney-General decided to refocus his Department's energy and create further amendments to the Sex Discrimination Act 1984.

The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 was introduced into Parliament to insert new protections from discrimination on the basis of sexual orientation, gender identity and intersex status, and extend the ground of marital status to marital or relationship status to provide protection from discrimination for same-sex de facto couples. These amendments support the government's commitment to introduce new protections against discrimination on the basis of sexual orientation and gender identity.

While the Attorney-General's Department continues to work on the Human Rights and Anti Discrimination Bill, the new amendments will provide important, long overdue protections against discrimination on the basis of sexual orientation, gender identity and intersex status. However, it remains highly unlikely that the Human Rights and Anti Discrimination Bill will be redrafted and introduced to Parliament before the election on 14 September 2013.

Your Right to Silence

Mon, 22 Apr 2013 14:00:00 GMT

Previously, in our blog on 17 September 2012, we discussed the NSW Government’s plan to introduce new evidence laws that would potentially undermine the legal principle of "the right to silence". The amendments to the Evidence Act announced by Premier O'Farrell were designed to curtail incidences where organised crime gangs hide behind the right to silence. The proposed amendments were endorsed to allow juries to make an adverse finding against alleged criminals refusing to cooperate with investigating police but who later produce “evidence” at trial.

At the time the NSW Law Society raised severe concerns over the government's decision to amend the Evidence Act without consulting relevant stakeholders in the criminal justice field or with the people of NSW. Then President Justin Dowd stated that the news laws would not affect career criminals but most likely affect:

"those that are charged for the first time, those who are nervous or panicked, those who have a disability, language difficulties or other disadvantages".

In addition, he raised doubts about whether the new laws will actually assist police as they will only apply where a person is actually charged with an offence and not in cases where the "code of silence" practice by organised crime gangs and their affiliates applies, which is a completely different issue to the right to remain silent.

On 25 March 2013, the NSW Parliament assented the Evidence Amendment (Evidence of Silence) Bill 2013 into law. Attorney-General Mr Greg Smith SC has reaffirmed the government’s stance that the new laws are designed to allow juries to draw adverse inferences in certain circumstances where a person accused of a serious indictable crime seeks to raise a fact at trial they did not disclose during a police interview. The government has highlighted a European Court of Human Rights ruling, which found similar laws in the United Kingdom to be consistent with the right to fair trail, as justification for the new laws.

However, the NSW Law Society has criticised the new laws maintaining that they will lead to more costs and delays without increasing convictions. Current Law Society President, Mr John Dobson, has declared that removing the fundamental right to silence for people when they are arrested will increase the length and complexity of trials with the potential for the Courts to be bogged down by unnecessary legal proceedings due to an increase in the amount of appeals by those who have been convicted.

In addition, Mr Dobson argues that the NSW laws now go well beyond the provisions on which they are based on in the United Kingdom and effectively shifts the onus of proof onto the defendant to mention a fact, even in circumstances where the police have not even asked questions about it in an interview.

Dooley & Associates are disappointed by Parliament's decision to assent Evidence Amendment (Evidence of Silence) Bill 2013 and we reiterate our full support of the NSW Law Society’s position on the new laws. We believe the new laws will, in practice, fail to curb Serious Organised Crime and only succeed in undermining the civil rights of the people of NSW; and more often than not affect only the most vulnerable members of our society.

Family Friendly Arrangements in the Fair Work Amendment Bill

Wed, 17 Apr 2013 14:00:00 GMT

In our previous blog on the Fair Work Amendment Bill 2013 (the Bill) we discussed how the new legislation had been introduced into Parliament with the intention of curbing workplace bullying. In today's blog, we explore the Bill further and review the new laws specifically constructed to try and help parents balance family and work commitments as well as provide pregnant employees with safer working conditions.

Concurrent unpaid leave
At present concurrent leave can only be taken by an employee at the time of the birth or placement of a child. The Government's proposed changes attempt to provide greater flexibility for parents in responding to the caring needs of their new child and better align with Dad and Partner Pay, which can be accessed at any time during the first 12 months after the birth of a child.

The new laws relating to concurrent unpaid parental leave will extend the period of entitlement from three (3) weeks to (8) eight weeks. In addition, the new eight (8) week period of concurrent leave will be able to be taken in separate blocks, of no less than two weeks, at any time during the first 12 months after the birth of the child.

Safety and wellbeing of pregnant employees
At present, special maternity leave is provided for circumstances such as a woman suffering a pregnancy related illness. The Government's new amendments ensure that an employee is not penalised when they are forced to take special maternity leave as a result of circumstances outside of their control. These new provisions will allow the employee to retain their full entitlement to unpaid parental leave in circumstances where they are forced to take special maternity.

Currently, there is an express right in the Fair Work Act for a pregnant employee to transfer to a safe job where they can provide evidence that they cannot continue in their usual role due to an illness or risk arising from their pregnancy.

However, this right only exists in circumstances where the employee has served 12 months’ service. The Government's proposed changes are designed to ensure that employees who have served less than 12 months’ service at the time of birth will have the right to transfer to a safe job. In addition, where no safe job is available, the employee will be eligible for unpaid no safe job leave.

Additional leave entitlements
The amendments made by the Bill will also provide a right to request flexible working arrangements to:
• all employees with responsibilities for caring for others;
• an employee who is a parent, or has responsibility for the care, of a child of school age;
• employees who have a disability;
• employees aged 55 years and over;
• employees who are experiencing family violence;
• employees providing personal care, support and assistance to a member of their immediate family, or a member of their household, who requires care or support because the individual is experiencing family violence; and
• an employee returning from parental leave having the explicit right to request part-time work.

Consultation on Work Rosters
The new laws will place an obligation on employers to provide employees with information about changes to their roster or hours of work and consult with employees on the impact any changes will have, including on the employees’ family and caring responsibilities. Employers must then consider any views the employees have about how the change will impact them before implementing any changes. The proposed changes are designed to ensure that when decisions on rostering and working conditions are made, they involve a consideration of the needs of both employers and employees.

Impact on employers
The Bill, if passed, enacts a number of specific entitlements and protections for employees that businesses and employers need to be aware of, and comply with, in order to ensure they are acting within the law in relation to leave, safety of pregnant employees at work and consultation with employees with regard to roster changes. These proposed changes will, if passed, create another complex layer of legal obligations in conducting their business. Careful consideration of the laws and how they may impact upon the operation of business should be had. Where possible and relevant businesses should consider the implementation of appropriate workplace policies and procedures to help them comply with the proposed new obligations.

Should you need to obtain any further information on the proposed amendments to Fair Work Act 2009 or any aspect of our complex workplace laws please contact us.

What is a Testamentary Trust?

Tue, 16 Apr 2013 00:25:00 GMT

Click here to check out the Best Practice Lawyer's recent blog explaining some of the benefits of a Testamentary Trust.

School Zone Reminder during Holiday Period

Wed, 10 Apr 2013 14:00:00 GMT

As the first school term draws to a close, a reminder that school zone speed limits will not be in operation from Monday 15 April until Friday 26 April. School zone speed limits will re-commence from Monday, 29 April.

Exceeding the speed limit in school zones attracts the following points loss:

exceeding speed limit by not more than 10km/h – 2 points
exceeding speed limit by 11-20km/h – 4 points
exceeding speed limit by 21-30km/h – 5 points
exceeding speed limit by 31-45km/h – 6 points and licence suspension
exceeding speed limit by more than 45km/h – 7 points and licence suspension

During the school holiday period the Anzac Day public holiday on Thursday 25 April falls and will see a double demerit point period enforced. The double demerit period begins at 12:01am Wednesday, 24 April running for five days, finishing at 11:59pm Sunday, 28 April.The following is a list of the most common offences which attract double demerit points:

exceeding speed limit by not more than 10km/h – 2 points
exceeding speed limit by 11-20km/h – 6 points
exceeding speed limit by 21-30km/h – 8 points
exceeding speed limit by 31-45km/h – 10 points and licence suspension
exceeding speed limit by more than 45km/h – 12 points and licence suspension
driver not wearing own seatbelt – 6 points
driver with passengers not wearing seatbelt – minimum 6 points
motorcycle rider without own helmet – 6 points
motorcycle rider with a passenger not wearing a helmet – minimum 6 points

Stay safe, drive to the speed limits and road conditions during the school holidays and on Anzac Day.

Please don't hesitate to contact Dooley & Associates Solicitors should you require any assistance with a traffic matter.

Building Certificates

Mon, 08 Apr 2013 14:00:00 GMT

Click here to check out the Best Practice Lawyer's recent blog about Building Certificates.

New Laws to Curb Workplace Bullying

Wed, 03 Apr 2013 13:00:00 GMT

On 21 March 2013, the Federal Government introduced the Fair Work Amendment Bill 2013 (the Bill) in direct response to the Report into workplace bullying compiled by the House Standing Committee on Education and Employment. If enacted by Parliament, the Bill will allow a worker, who alleges that they have been bullied at work to apply to the Fair Work Commission for an order to stop the bullying.

Any person who carries out work in any capacity for a person conducting a business or undertaking will be defined "a worker" and includes a contractor and student gaining work experience or a volunteer. However it will not include members of volunteer associations and persons carrying out work for strata bodies corporate and incorporated volunteer associations.

A worker is deemed to be bullied at work if the worker is at work and either an individual or group of individuals repeatedly behave unreasonably towards the worker, or a group of workers of which the worker is a member and the behaviour creates a risk to health and safety.

Where the FWC is satisfied that the applicant has been bullied and that there is a risk that the bullying will continue then they may make any order it considers appropriate to prevent the worker from being bullied. In considering the terms of an order the FWC must take into the account:

Outcomes arises out of any investigations into the matter being undertaken;
Whether their are procedures in place already for the worker to lodge a complaint internally;
Any other matters they consider relevant.

Examples of the orders that the FWC may make include an order requiring:

the individual or group of individuals to stop the specified behaviour;
regular monitoring of behaviours by an employer;
compliance with an employer’s workplace bullying policy;
the provision of information and additional support and training to workers; or
review of the employer’s workplace bullying policy.

Reasonable management action when carried out in a reasonable manner will not result in a person being ‘bullied at work’. For instance, reasonable performance management in which an employee receives fair and constructive feedback on their performance will not amount to bullying. Similarly, a disciplinary process initiated against an employee in a reasonable manner will not be bullying.

Once the order is made by the FWC any person who contravenes the order is liable to a maximum penalty of 60 penalty units ($10,200.00).

Whilst the principles behind the proposed new law are honourable, it remains to be seen whether it will have the desired effects of stopping bullying in the workplace. Workplace bullying has been a very topical issue of late and is certainly a topic which requires and deserves thorough consideration there is some concern that these new laws will simply add an additional layer of compliance, complication and cost for employers without actually addressing the root cause of workplace bullying.

Further updates will be provided by us As the matter develops.

Divorce Woe for Baby Boomers

Mon, 01 Apr 2013 13:00:00 GMT

Many people plan their financial future and retirement around having sufficient funds to support themselves together with their partner. Unfortunately, many people are now separating later in life causing their ‘financial future and retirement plans’ to fall apart. For those Baby Boomers whose relationships and marriages are breaking down later in life, they are essentially having to halve their asset pool causing them to face having to fund their retirement as 2 singles. The cost of which is significantly greater.

If you are a Baby Boomer and your relationship of marriage has broken down, it is important to make sure that in reaching a property settlement with your former spouse you take into account this ‘change in your plans’ and think about the effect of the settlement on your financial future, particularly how it will affect your plans for retirement. Your family law Solicitor should not only ensure that a property settlement is properly formalised to secure your financial future, they should also work with your financial planner to help you to put in place a new plan for your future. We have a good relationship with a number of professional and reputable planners. Contact us for a referral.

Best Practice Lawyers Website Launch

Wed, 27 Mar 2013 13:00:00 GMT

Best Practice Lawyers is a group of like minded lawyers who are committed to excellence in the provision of legal services, and implementing best practice processes within their business.

As a member of the Best Practice Lawyers group, Dooley & Associates collaborate with these very experienced lawyers, sharing resources, practice management tips and also guidance with complex legal problems. As a client of a Best Practice Lawyer, you have the benefit of access and support from an entire group of specialist lawyers in their areas of practice.

The Best Practice Lawyers group has recently launched their website, which contains valuable information for clients on a range of topics. Click here to read their recent blog about ‘Recovering Unpaid Strata Levies’