The Australian Government has implemented significant amendments to the Franchising Code, with most changes effective 1 July 2021. To find out more about these changes, please refer to the following link.
22 Oct 2021
In response to the latest COVID-19 restrictions, the NSW Government on 13 August 2021 passed the Retail and Other Commercial Leases (COVID-19) Amended Regulation 2021 (“New Regulation”), effectively reintroducing the 2020 regulations. The New Regulation prevents landlords from taking ‘prescribed actions’ from 13 July 2021 to 13 January 2022 (“Prescribed Period”) under certain retail leases for the tenant’s failure to pay rent and outgoings, or to trade. Landlords may only take ‘prescribed actions’ such as terminating the lease, evicting the tenant, claiming interest or recovering from a security bond or bank guarantee after a failed compulsory mediation. We set out the key aspects of the New Regulation below. 1. WHAT KIND OF LEASES AND TENANTS ARE PROTECTED UNDER THE NEW REGULATION? The New Regulation applies to retail shop leases entered before 26 June 2021 (including leases entered into by way of an option to extend or renew) where the tenant is an ‘impacted lessee’. An ‘impacted lessee’ is a tenant who: • qualifies for one or more of the COVID-19 Microbusiness Grant, COVID-19 NSW Business Grant, and JobSaver Payment; and • has a turnover in the business or group (including online sales) of less than $50 million for the 2020 – 2021 financial year. 2. WHAT KIND OF EVIDENCE IS REQUIRED TO BE PROVIDED TO THE LANDLORD? A tenant must provide a statement and evidence that it is an ‘impacted lessee’. This can be achieved by providing a statement to that effect along with a copy of their Business Activity Statements to demonstrate the $50 million turnover criteria, and evidence that the tenant is receiving or qualifies for the one of the government grants noted above. An ‘impacted lessee’ must provide this information before a prescribed breach occurs (e.g. failure to pay rent or outgoings or to trade) or as soon as practicable, and within a reasonable time if requested by the landlord. 3. WHAT NEXT? If the tenant is an ‘impacted lessee’, the parties must renegotiate the rent payable and other terms of the lease. Either party may request the other to renegotiate and must commence negotiations within 14 days of the request or within a period agreed by the parties. Subsequent requests for renegotiation can be made if it is submitted during the Prescribed Period and it does not relate to the same period that was renegotiated earlier, unless the landlord agrees otherwise. The parties must renegotiate in good faith having regard to the economic impacts of COVID-19, and the leasing principles in theNational Cabinet Mandatory Code of Conduct – SME Commercial Leasing Principles(“Code”). Among other things, the Code requires landlords to provide rent relief in proportion with the tenant’s substantiated decline in turnover and at least half of the rental relief must be in the form of a waiver, subject to the landlord’s financial ability to provide such rental relief. 4. WHAT IF THE RENEGOTIATION FAILS? The matter is referred to mediation through the NSW Small Business Commissioner. Should the mediation then be unsuccessful and certified to be so, the landlord may take ‘prescribed actions’ unless the tenant pursues proceedings through the NSW Civil and Administrative Tribunal or the courts. 5. WHAT ARE THE BENEFITS FOR LANDLORDS PROVIDING RENT REDUCTION TO TENANTS? Landlords will be entitled to land tax relief to the equal value up to 100% of their land tax liability for 2021. This is available by way of a credit or refund for land tax paid or a waiver for those landlords yet to pay. For more information regarding the land tax relief, please refer to theRevenue NSW website. Small commercial or retail landlords may be eligible for a grant from the Commercial Landlord Hardship Fund, which will provide to landlords a grant of up to $3,000 per month per eligible tenancy in proportion to the rental waiver provided. To be eligible, landlords must: • have a total taxable unimproved landholding of less than $5 million (excluding primary place of residence); • have not claimed land tax relief for the relevant property for rent reductions or waiver between 1 July 2021 – 31 December 2021; • have gross rental income as their primary source of income (more than 50% of total assessment income) for the 2019 – 2020 financial year; • be a landlord with a current lease that provided rental relief to the tenant from 13 July 2021 that will not be claimed as 2021 land tax relief; • the tenant is an ‘impacted lessee’ under the New Regulation; and • attest that providing rent relief to the tenant will cause financial hardship. Further details regarding the fund and its guidelines have just been publishedhere. Written on 02/09/2021 Disclaimer:The contents of this publication are general in nature and do not constitute legal advice. The information may have been obtained from external sources and we do not guarantee the accuracy or currency of the information at the date of publication or in the future. Please obtain legal advice specific to your circumstances before taking any action on matters discussed in this publication.
06 Sep 2021
2020年5月20日，澳大利亚联邦法院全席法庭对WorkPac Pty Ltd v Rossato一案作出判决。 此案聚焦并围绕劳务派遣公司WorkPac Pty Ltd（以下简称 “WorkPac”）和Robert Rossato (以下简称“Rossato”)之间的雇佣关系进行展开。该公司派遣Rossato先生到Glencore公司名下两处位于昆士兰州的矿山工作。Rossato先生作为临时员工 （casual employee）工作的三年半期间，签订的是滚动合同（rolling contract）。作为一名临时员工，他在工资的基础上还获得了25%的额外报酬 - 这是为了弥补临时员工未能享有类似年假等福利的通常做法。 澳大利亚联邦法院全席法庭驳回 WorkPac 认为Rossato先生是临时员工的主张，判定他属于正式员工(permanent employee)。联邦法院基于以下理据，做出上述判决：Rossato先生的工作性质是 “定期(regular)、稳定(certain)、连续(continuing)、持续性(constant)” ，而且有事先被告知工作日程。 Rossato先生有资格享受根据《2009年公平工作法》(Fair Work Act 2009 Cth)和企业协议(Enterprise Agreement)中全国就业标准(National Employment Standards - NES)所规定正式员工应享有的福利，其中包括带薪年假，个人病假/照顾者假，丧病假及法定公共假日等。 这一判决对于雇佣临时员工的雇主，无论是通过直接雇用、外包劳务、转包等不同的雇佣途径，都是不能忽视的重要判决。对于该判决，联邦政府可能会采取干预措施或向最高法院提出上诉，但是在判决发生改变之前，雇主现在应该仔细审查与临时员工之间的雇佣安排，更新与临时员工的合同条款。雇主应重新考量与劳务派遣公司以及派遣员工之间的关系，特别需要注意以下三点: 雇主应该进行阶段性审查与临时员工的雇佣安排，并考虑与临时雇佣相比，兼职或固定期限等其他形式的雇佣关系是否更加合适。 如果临时雇佣关系仍然适用，雇主应该注意合同中是否单独列明临时员工会获得额外报酬，由于临时员工不享受全国就业标准（NES）以及正式员工的应享福利。我们建议雇主与临时员工签署一份声明，表明如果之后被认定为正式雇佣关系，雇主有权要求员工退还之前所获得的额外报酬。 我们建议雇主至少每年定期审查临时雇佣合同。以评估该合同下的雇佣关系是否会被认定为工作日程稳定并且持续的雇佣关系。 如果您认为WorkPac Pty Ltd v Rossato的判决结果，会对您公司现有员工的工作安排有所影响，或者在处理与员工之间的雇佣关系上需要专业的法律意见，请与我们联络。
24 Jun 2020
热烈祝贺H & H Lawyers Kenneth Hong，洪敬一律师入选专业职业领域“40 Under 40: 最具影响力的亚裔澳大利亚青年领袖人物“。 此项荣誉由墨尔本大学、澳大利亚国立大学、PwC（PricewaterhouseCoopers）联合举办的澳大利亚亚洲领导力峰会（Asian-Australian Leadership Summit，简称‘AALS’）颁发，旨在表彰澳大利亚亚裔青年领袖人物。 AALS峰会评审团队从包括文化与体育、非盈利与公共事业、公司与商业、教育、创业、科学与医疗、专业职业、政府机构的八个领域评选出40位最具影响力的亚裔澳大利亚青年领袖，庆祝新一代澳大利亚亚裔青年取得的成就，并扩大入选人的社会影响力，使他们出众的领导力广泛惠及大众。
17 Sep 2019
Thursday, 13 June 2019 – Rise of the boutique law firm Doing business with international partners – whether it be an entity operating on Australian soil or a local brand venturing offshore – can be fraught with difficulty. Between establishing a fresh customer base, navigating new laws, regulations and corporate governance, creating effective relationships and becoming nuanced with cultural mores (perhaps the trickiest of all), the business of doing business has the potential to bring an enterprise undone. For instance, exchanging a business card using one hand rather than two can be seen as a sign of disrespect in some cultures. Who would necessarily know? With Australians increasingly undertaking business across the world and with Asian powerhouses such as Japan, Korea and China, navigating the behind-the-scenes landscape, as well as providing direct services and advice, has become all important. Business owners and operators need to focus on what they do best, so employing people who specialise in troubleshooting make-or-break sensitive legal, technical and cultural matters is a vital and strategic move. Sydney’s H & H Lawyers offers this official and unofficial role in its capacity as a firm on the path to being Australia’s biggest ‘‘Asian’’ law firm. H & H Lawyers’ services include commercial and corporate advisory, acquisitions, dispute resolution, employment law, corporate migration and intellectual property. “Our bilingual lawyers have been inundated with work representing multinational corporations and government agencies from Japan, Korea and China that want to expand their businesses into Australia,” says Principal Ken Hong. “We have also been very busy acting for local clients with Japanese, Korean or Chinese backgrounds, or that have transactions with their counterparts in those three countries. “Demand for our services has escalated, so we are rapidly expanding to meet the demand.’’ Fellow Principal Yukio Hayashi says a vital aspect of the firm’s work includes “bridging fundamental cultural differences”. “This cross-cultural dexterity is not necessarily part of our brief, but it’s what we offer as well, as it is so essential,’’ he says. “Our team not only speaks the languages, but also intimately understands the cultural nuances of Asia. This saves our clients so much time in getting straight to the actual issues and resolutions. Without the right knowledge of culture, a lot of key messages can be lost in translation, particularly legal concepts, leading to a frustrating experience for all. “We had one situation recently in which there was an investment in an Australian business by a Japanese company. There were excellent managers and staff in situ, but the incoming management from Japan had their way of doing things that did not rest well with the Australian team, and vice versa.” “This friction was no one’s fault, but we made it our job to navigate the cultural minefield. We were able to get each side to see things from the other’s perspective and that made all the difference.” Hong and Hayashi say that by going this extra mile, the law firm can resolve difficulties and help international-facing businesses to thrive. “The importance of Australia’s trade relationships with Korea, China and Japan need no further explanation,’’ says Hong. “They are our top three trading partners. We look forward to continuing with our work and contributing to Australia’s successful trade relationships with those three countries.” Says Hayashi: “Our firm is well placed and equipped to help clients have a more fruitful, efficient and enjoyable experience in doing business.’’
13 Jun 2019
31 May 2019