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
Q: Some mid-career employees have been working for 10 years without a formal employment contract. I've had no problem without an employment contract, but should I still have an written employment contract? (Male in their 40s, HR department at Japanese company) A: Employment contracts do not necessarily have to be reduced in writing. Oral employment contracts have legal effect. Even if specific terms of employment contract have not been discussed, there is in principle an employment relationship if an employee actually works for an employer. It goes without saying that wages, working hours, annual Leave and superannuation, etc., must meet the minimum labour standards set by law, even if no detailed employment conditions are negotiated. However, labour standards set by law are complex. Employers may violate inadvertently minimum labour standards if they do not ensure that minimum employment standards are well covered in the employment contract. Fair Work Ombudsman may impose a fine in case of violation of the standards. Also, even if employees are employed under conditions that exceed the minimum labour standards, it is necessary to confirm and reduce in writing that both parties understand the details of the terms. When an annual salary is presented (as opposed to hourly wages), there could be a disagreement between the parties about what their wage cover. For example, an employer may understand that its salary includes reasonable overtime work, while an employee understood that overtime works are billable separately. In this case, the employer is legally required to notify the employee in writing that the overtime payment is included in the salary. Another common issue is that in the absence of a contract, an uncertainty arises whether a notice is required to terminate an employment contract. Generally, if an employment contract states that a notice of dismissal should be given before certain weeks (except for unfair and illegal dismissal), an employee must be informed of the termination before that period. However, in the absence of a written agreement, the notice of termination must be a reasonable period. The reasonable period is determined a case-by-case. If you hire a position that need creativity, you need to make sure who owns the intellectual property that arises as your employees perform their duties. In addition, it will be disadvantageous for employers if an employment contract fails to incorporate confidentiality obligations and non-competition obligations after termination. Especially for mid-career employees or employees in senior management positions, if above terms are not stipulated in their employment contract, it can lead to major legal issues later. However, it may be difficult to ask for sign an employment contract suddenly, it is recommended that written employment contract is presented to employees at their promotion.
04 Jul 2019
Q: I have been living in Australia for almost 20 years. I have been married with my husband for 5 years but have hardly contacted with him. I had considered starting procedures for divorce and marriage property distribution because that our relationship collapsed. However, I was recently informed that he was given six moths to live due to his final state lung cancer. He has never written a will that would leave inheritance to me. So, what would be my rights to marriage property if he dies? And do I have any right to receive inheritance? A: Divorce and distribution of marital property in Australia are subject to the Family Law Act. If a marriage property proceeding has commenced pursuant to section 79(8) of the Act, even if one of them died in the middle, it shall be continued by the executor or the estate administrator as the agent of the deceased. Importantly, the lawsuit must be initiated while the spouse is alive. If the proceeding has not begun before your husband dies, your right to claim for sharing marital property has been expired. Therefore, if you choose the marriage property distribution method, you need to start a legal action immediately. If your marriage distribution proceeding cannot begin before your husband dies, your rights will become the right as an inheritance. In this regard, if your husband wrote a will that would leave you with no property or only an inadequate inheritance, you would still be granted a family provision (similar to a Japanese claim for retention). The amount of inheritance under family provision is at the discretion of the court in light of your situation and other factors. The most important factor is whether you a dependent of your husband have relied on him. On the other hand, in the case of seeking marriage property distribution, the family court is mainly concerned with the situation during the past marriage period, for example, the court takes into account how much each couple has contributed to acquire the marriage property to be distributed. The contribution of a full-time housewife to the family, such as childcare and housework, is of course an important factor to be considered.
15 Jun 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
Q: I bought a pair of jeans, but I couldn't wear it because the zipper was broken only after wearing it twice. When I asked for return, the store clerk told me, "the jean was am on-sale item, and we do not accept returns." How can I deal with this matter? A: In Australia, the Australian Consumer Law (“ACL”) guarantees consumers various rights. The scope of ACL is very wide, and it can be applied not only to products but also to services. Section 54 of the ACL states, so to speak, that goods are of acceptable quality—that is, they are safe, durable and free from defects, are acceptable in appearance and finish and do what they are ordinarily expected to do. In this sense, the seller has to refund, replace, or repair these jeans because clothes that broke after being worn twice would not be at least "reasonably durable". Section 54 of the ACL requires to determine the degree of assurance of "reasonable quality" for a product by taking into account various factors such as general use, price, labelling, etc. For example, a $5 T-shirt naturally has a guarantee of a lower degree of "reasonable quality" than that of a $ 50 T-shirt. In other words, the $5 T-shirt being discoloured after several times of washing will not fall under a consumer guarantee claim. If a home appliance such as a refrigerator breaks after one year of normal use, it will not be considered "reasonably durable." Products such as home appliances often come with a manufacturer's warranty for a fixed period (for example, one-year warranty). However, although this manufacturer's warranty expires, the consumer's right could continue if section 54 applies. In addition, ACL requires manufacturers to incorporate into a warranty a term that "this manufacturer's warranty does not limit the consumer's ACL rights." Furthermore, even if the purchased goods are goods on sale, used goods or goods purchased on the Internet, despite a difference in the degree of guarantee, section 54 of ACL still applies. Situations where the ACL consumer guarantee does not apply include a purchase of goods without receipts or proof of purchase, a purchase between private individuals without receipt (e.g. garage sales) or at auctions, unusual usage. Additionally, there may be cases where consumers want to return a product just because they changed their mind without any problem with quality. In such case, ACL does not provide the consumer guarantee. Accordingly, for the current case, if the store does not accept the return of jeans, it is recommended that you first tell the store manager that you would consult with the Australian Competition and Consumer Commission or Fair Trading. Nevertheless, if they still deny responding, we encourage you to contact these agencies for your matter.
06 Jun 2019
Q: Recently, my mother passed away. Her will stated that, in addition to part of the mother's deposit, the house she owned would be handed over to me, but the condition of the inheritance was that I would "be baptised and become a Christian." During her life, my mother was a devout Christian, but I am not interested in any religion, and therefore become embarrassed. Are these bequest conditions legally binding? A: In short, it is likely that such conditions of inheritance will be legally acceptable. In particular, if the will specify how the inheritance will be treated in case that you do not satisfy the conditions, it will be more likely that such conditions are legally binding. Therefore, you need to examine your mother's will in detail. In principle, "freedom of will" is recognised in Australia so that a testator can freely decide who and how its estate will be inherited. Generally, if the conditions of an inheritance are 1) clear, 2) achievable, and 3) not contrary to public policy, the condition of the inheritance is considered valid. There is a case held in 2014 before the NSW Supreme Court in 2014, Carolyn Margaret Hicken v Robyn Patricia Carroll & Ors (No2), where the court discussed the validity of a condition that a heir needs to be baptized by the Catholic Church within three months of the death of his father. The heir of course claimed that the above conditions were invalid. In particular, he argued that the condition was "inconsistent with public policy" because "it is religious discrimination, which creates discord within the family, and also infringes universal human rights and freedom concepts." In response, the court ruled that "the condition does not force the heir change its religion, and they are not contrary to public policy." In other words, the heir had the choice of converting and receiving an inheritance or keeping their own religion. In addition, it was held that the condition was clear and achievable. One of the major factors that led to such a decision was that the will specified how to inherit if the heir fails to meet the condition. In the current matter, it will be determined that the mother's inheritance conditions do not oblige her child to be converted. However, even if she or he is unable to fulfil the conditions, and thereby the estate is to be inherited to others, it does not mean that the child cannot inherit anything. According to the Family Provision regime stipulated in the Succession Act 2006 (NSW), regardless of the content of the will, children of the deceased can claim inheritance rights for a part of heritage. Further details about the inheritance claim on Family Provision will be explained in the later article.
26 Apr 2019