4 Quarterly 2011 - Issue 3

Posted on 27 September 2011

Adverse Action and You The Employee

The introduction of General Protections/Adverse Action workplace rights in 2010 provided new rights to employees, prospective employees, independent contractors and industrial associations.

The aim of the laws is to protect workplace rights, freedom of association (union membership) and prevent workplace discrimination.

The General Protections provisions say that an employer must not take Adverse Action against an employee or contractor because they have a workplace right, have exercised a workplace right, or propose to exercise a workplace right.

So what is considered Adverse Action against an someone? It can include various negative actions and is not limited to dismissal. It can include causing the employee an injury, altering their employment to their detriment (for example demoting them) or discriminating against them. “Workplace right” is very broadly defined and includes rights under workplace laws (e.g. OH&S and discrimination laws). For example an employer cannot take Adverse Action against an employee because the employee complained about a safety breach.

To make a successful claim you must be able to identify the workplace right and the adverse action that has occurred. Such claims are very new so can be complex in their nature and uncertain in their outcome. Strict time limits apply, if you believe you have treated adversely, you should act quickly.

What is ‘Shared Care’ and ‘Shared Parental

These terms are used in reference to family law parenting matters all the time, but what do they really mean? Many believe these terms mean the same thing, but do they?

The simple answer is no. ‘Shared Care’ relates to how much time the child spends with each parent. The Family Law Act 1975 communicates the rights for children to spend significant time with each parent and to otherwise be able to communicate with them in a full and meaningful way.

‘Shared Parental Responsibility’, on the other hand, relates to the duties, powers, responsibilities and authority which, by law, parents have in relation to their child. This includes (but is not limited to) making decisions relating to the care, welfare and development of the child.

The Family Law Act 1975 presumes that each parent shares parental responsibility in relation to their child unless there are circumstances whereby that responsibility should be more specifically allocated to protect the child’s best interests.

What is important to remember however, is the Family Law Act’s presumption of ‘shared parental responsibility’ does not automatically created a presumption of ‘shared care’ of children.

Prenuptial Agreements - Asset Protection v Romance

Public opinion is divided into 2 camps, “Why would you enter into a marriage expecting it to fail – how unromantic is that?” or “A BFA is smart; it’s just another form of asset protection”.

Putting aside romantic and ethical views, the reality is that when people marry or start living together in a de-facto relationship, their is, in essence, a financial merger (even if you keep your property and bank accounts in separate names) therefore, all risks should be assessed and the parties should discuss the tough issues relating to each other’s intentions regarding the merging of property and finances. This is particularly important as people are starting to live together and/or marry later and often already have significant assets and interests. The agreements can also be useful to those contemplating marrying (or entering into a de facto relationship) for a second time (or third) who want to secure for themselves and their children assets that they have acquired up to that point. BFA’s can actually be the most romantic thing you can do for each other. You will ensure that you both protect assets that you each agree to protect and you provide each other with certainty as to how the assets are to be divided in the event of a marital breakdown, saving on the stress and significant costs that are often a consequence of Family Court litigation. As there is no ‘one size fits all’ agreement and there are specific legal requirements that must be met, please contact us if you require a BFA.

The 2 Certainties in Life - Death & Taxes

Australia, does not have death duties but instead has Capital Gains Tax (CGT). Inheriting shares or property from a Will may mean dealing with CGT. Different rules as to CGT apply depending upon when the asset was acquired. Superannuation inherited from a will may also attract tax.

If you inherit a property which was the principle place of residence of the deceased and that property is sold within two years, no CGT applies. Retaining it as an investment property will require advice as to the CGT payable, as different rates of tax apply depending upon when the residence was purchased, the purchase price and the market price the property at the time of death of the owner.

A superannuation payout made to a financially dependant beneficiary may be tax-free, however payments to non-financially dependant beneficiaries will attract tax. The tax payable on death benefits on super depends upon whether the super fund member (the deceased) received a tax concession on their original contributions.

How other assets which are inherited are taxed is dependant upon when the asset was purchased as different rules apply to CGT depending upon whether the asset was acquired pre or post 1985, when CGT was introduced.

It is wise to obtain legal and financial advice when drafting your Will or organising your finances to ensure that your heard earned assets, are not significantly taxed upon your death.