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Legal News
Applications required for all company directors under new business registry regime. Background The Federal Government is in the process of rolling out the Modernising Business Registers (‘MBR’) program. The MBR will consolidate various ASIC registers and the Australian Business Register, and establish the new Australian Business Registry Services (ABRS). As a part of the MBR program, the Directors Identification Number (‘DIN’) has been introduced. From November 2021, directors of an Australian company, registered foreign company, registered Australian body or Aboriginal and Torres Strait Islander corporation are required to apply for their DINs. When you need to apply You can apply for a DIN from November 2021. If you are planning on becoming a director, you can apply before you are appointed. When you must apply for your DIN depends on the date you become a director. Date you become a director Date you must apply On or before 31 October 2021 By 30 November 2022 Between 1 November 2021 and 4 April 2022 Within 28 days of the appointment From 5 April 2022 Before appointment Please note that there may be civil or criminal penalties and/or you may be issued with an infringement notice if you do not meet your obligation to apply within the above timeframe. How do I apply for the DIN? To apply for a DIN, the most straightforward way is by using myGovID. The myGovID app is available from the Apple App Store or Google Play. Have your ID documents/information ready and follow through with the instructions within the app. If for some reason you cannot set up a myGovID, you may apply by phone or with a paper form. Once you have set up your myGovID, you can complete your application for a DIN online at ABRS website. What ID documents/information would I need to provide? To set up myGovID, you will needat least two of the followingAustralianidentity documents: driver’s licence or learner’s permit passport (not more than three years expired) birth certificate visa (using your foreign passport) citizenship certificate ImmiCard Medicare card You will also need to have the following ID information that matches the information kept at the ATO: your tax file number (TFN) your residential address as held by the ATO information from two documents, such as: Bank account details Notice of assessment Super account details Dividend statement Centrelink payment summary PAYG payment summary What if I do not have sufficient ID documents/information? If you are a non-Australian citizen, non-resident director, the chances are that you do not have most of the abovementioned ID documents/information. If you do not have sufficient ID documents/information, you would have to apply with a paper form attaching certified copies of one primary and one secondary identity document. Primary documents Overseas birth certificate Overseas passport Secondary documents National photo identification card Foreign government identification Driver’s licence, as long as the licence address matches the address details on your application Marriage certificate (N.B. if this document is used to verify your change of name, it cannot be used as a secondary document). If you have changed your name, you must provide an additional document showing the change, such as a: marriage certificate deed poll change of name certificate. Please note that if your identity documents are not written in English, you must arrange for them to be translated into English by an approved translation service (such as NAATI - National Accreditation Authority for Translators and Interpreters) and certified as a true and correct copy. How do I certify my documents outside Australia? The following people are authorised to certify your identity documents outside Australia: notary publics staff at your nearest Australian embassy, high commission or consulate, including consulates headed by Austrade honorary consuls. An authorised certifier must, in the presence of the applicant, certify that each copy is a true and correct copy of the original document. This involves: sighting the original document stamping, signing and annotating the copy of the identity document to state, ‘I have sighted the original document and certify this to be a true and correct copy of the original document sighted' initialling each page listing their name, date of certification, phone number and position. 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.
03 Nov 2021
Workplace & Employment
On 20 May 2020, the Full Court of the Federal Court of Australia handed down its decision in WorkPac Pty Ltd v Rossato. The case centres around labour hire firm WorkPac, which employed Robert Rossato as a mine worker at two Queensland mines owned by Glencore. Mr Rossato was a casual employee, on rolling contracts, over a three-and-a-half-year period. As a casual, he was paid an extra 25 percent loading on top of his wage — which is the usual practice to make up for not being given benefits such as annual leave. The Full Federal Court dismissed WorkPac’s application for a declaration that Mr Rossato was a casual employee, instead finding that Mr Rossato was a permanent employee. It was found that because Mr Rossato's employment was "regular, certain, continuing, constant and predictable", and he was given rostered shifts well in advance, he was eligible to entitlements that full time employees receive under the National Employment Standards (NES) in the Fair Work Act 2009 (Cth) and the relevant Enterprise Agreement: being paid annual leave, paid personal/carer’s leave, paid compassionate leave, and payment for public holidays. This is an important decision for employers who engage casuals, whether directly or as a host employer. Pending any intervention by the Federal Government or appeal to the High Court, employers should now carefully review their casual employment arrangements, update the terms of their casual contracts, and revisit their arrangements with labour hire companies and their workers. In particular: • Employers should review their casual arrangements with a view to determining whether some other form of engagement is more appropriate – including part time and fixed term arrangements. • Assuming casual engagement is still appropriate, specific attention should be given to the employee’s written contract to ensure that the casual loading is a separately identifiable amount that is stated to be paid as a result of the employee not being entitled to NES or other entitlements peculiar to permanent employment. We also suggest a statement to the effect that if the employment is subsequently determined not to be casual employment, the employer is entitled to repayment of the casual loading. • Regular reviews of casual arrangements should be conducted – at least once every 12 months – to assess the likelihood of the employment being a “firm advance commitment” of employment. We can assist you if you have any questions about how the Workpac v Rossato decision may impact the work arrangements in your own organisation or more generally in relation to how you are employing or engaging your workforce.
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 a written employment contract? (Male in his 40s working in the HR department of a 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 inadvertently violate 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 covers. For example, an employer may understand that the 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 case-by-case. If you hire a position that involves 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. Though it may be difficult to ask an employee to sign an employment contract suddenly, it is recommended that a written employment contract is presented to employees at their promotion.
04 Jul 2019
Commercial & Corporate
Q: I bought a pair of jeans, but I couldn't wear them because the zipper broke after wearing it twice. When I asked for a return, the store clerk told me, "The jean was an 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 break after being worn twice would not be "reasonably durable". Section 54 of the ACL determines "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 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 a 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 the 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 in which 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 or with goods used unusually. Additionally, there may be cases in which consumers want to return a product just because they changed their mind without any problem with quality. In such cases, ACL does not apply. Accordingly, for the current case, if the store does not accept the return of the jeans, it is recommended that you first tell the store manager that you will consult with the Australian Competition and Consumer Commission or Fair Trading. If they still deny responding, we encourage you to contact these agencies.
06 Jun 2019
Family
Q: I have been living in Australia for almost 20 years. I have been married to my husband for five years but have hardly any contact with him. I had considered starting procedures for divorce and marriage property distribution because our relationship had collapsed. However, I was recently informed that he was given six months to live due to final stage lung cancer. He has never written a will that would leave an inheritance to me. What would be my rights to the 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 dies 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 expired. Therefore, if you choose the marriage property distribution method, you need to start 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 are dependent on your husband or 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 decide the marriage property to be distributed. The contributions of a full-time housewife, such as childcare and housework, is of course an important factor to be considered.
29 May 2019
Wills & Estate
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. 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 specifies how the inheritance will be treated in the 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 his or her 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), in which the court discussed the validity of a condition that an 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 to change his or her 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 his or her 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 who would inherit if the heir failed 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 he or she is unable to fulfil the conditions, and thereby the estate is to be inherited by 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