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Small Business Fair Dismissal Code

Posted on March 25, 2019 by admin

During the course of your business, you may be required to terminate an employee. The Small Business Fair Dismissal Code operates to help employers follow a fair process and protect against unfair dismissal claims when terminating employees. The Fair Work Commission will deem a dismissal to be fair if an employer follows the Code and can provide evidence of this. The Code defines a small business as one with fewer than 15 employees. These can include both permanent or casual workers employed on a regular and systemic basis. Staff members who have been employed for less than 12 months are not eligible to place an unfair dismissal claim. If a worker is terminated after this period of time but the employer has followed the Code, then the dismissal will be regarded as fair by the Commission. The Code outlines when it is fair to dismiss an employee in the following instances: Summary dismissal: If an employer believes that a staff member’s conduct is sufficiently serious to justify immediate dismissal, then it is fair to terminate said employee without notice or warning. Serious misconduct includes theft, fraud, violence and significant breaches of occupational health and safety procedures. Other dismissals: In some […]

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Understanding contracts

Posted on February 21, 2019 by admin

Working in a business environment, you will inevitably come across contracts at some point. There are basic employee contracts you will encounter when hiring or starting a new job, but then there are more complicated contracts that require greater attention be paid. A contract is a legally binding agreement so they must be entered into carefully with a full understanding of the commitment. Kinds of contracts:Contracts can be written, verbal or both in some circumstances, with the more formal contracts being required in writing. Both kinds are legally binding if they contain the elements of a contract. Verbal contracts are hard to prove and rely on the trust of a person unlike written agreements with physical evidence. Elements of a contract:For a contract to legally binding it must contain; an offer an acceptance intention to create a legal relationship a consideration e.g. money Before you sign: Read everything, including the fine print, carefully Ensure negotiated terms and conditions are included Seek legal advice Take time to consider and understand the contract Don’t be pressured into signing Never leave blank spaces on a signed contract, cross them out if irrelevant Make sure that you and the other party can make changes […]

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What you need to know about Gender Identity Laws

Posted on January 24, 2019 by admin

Gender identity can be a sensitive subject but the need for awareness is ever growing. In Australia, sexual orientation, gender identity and intersex status are all protected under The Sex Discrimination Act 1984 (SDA). It is unlawful to treat any person differently because of these reasons. Being aware and considerate of someone’s identity is not silencing your opinion or forcing ideas onto you, it is a way to protect your business and employees. It is important to understand the terminology of gender identity and why it is significant to those who identify as such. Directly or indirectly, you can discriminate and be held accountable, for security and peace of mind, familiarise yourself with the laws and establish an inclusive environment for everyone. It is also important to be mindful that not everyone is comfortable sharing their gender identity.

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Employer’s legal responsibilities regarding sexual harassment

Posted on November 29, 2018 by admin

An employer can be held vicariously liable if they fail to take all reasonable steps to prevent workplace sexual harassment. Implement a sexual harassment policy consistent with discrimination legislation to avoid legal ramifications. Discrimination legislationThe Sex Discrimination Act is a Commonwealth statute that applies to all of Australia. The Act defines sexual harassment as unwanted or unwelcome sexual behaviour, which makes a person feel offended, humiliated or intimidated. Sexual harassment is not interaction, flirtation or friendship which is mutual or consensual. Examples of sexual harassment include: Staring or leering Unwelcome touching Intrusive questions or statements about one’s personal life Requests for sex or repeated unwanted requests to go out on dates Inappropriate advances on social networking sites What you can doEmployers should take reasonable steps by drafting a sexual harassment policy. The courts will judge the policy’s efficacy should an employee bring a claim against you. The policy should contain: Adequate details defining sexual harassment Be endorsed by the employer through workplace education and training on procedures Outline the disciplinary courses of action should a breach occur

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Changing a will after death

Posted on October 30, 2018 by admin

Contrary to popular belief, a will may be effectively changed after a person’s death. Entering into a deed of family arrangement is a way to vary the terms of a will and can be established provided that all beneficiaries or interested parties come to a consensus on a specific outcome. Circumstances for a deed of family arrangementA deed of family arrangement will be an option in the following circumstances: There are doubts about the meaning of the will The beneficiaries desire to rearrange the distribution of the estate To compromise a claim against the estate agent where there is a challenge to the will To create an estate proceeds trust under taxation legislation Compliance rulesConsider the following points to make sure your your agreement is binding and abides by taxation legislation: All interested parties including the executor of the estate must sign the deed For greater certainty that the agreement is binding seek court approval of the terms of your agreement No adverse Capital Gains Tax consequences will be incurred if the requirements of 128-20(1)(d)(i) of the Income Tax Assessment Act 1997 are met Applying for eligible concessions minimises any Stamp Duty triggered by the agreement

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Employer’s annual leave obligations

Posted on October 5, 2018 by admin

Annual leave or holiday pay, allows an employee to be paid while they have time off from work. The law confers obligations on employers to provide rights to their employees depending on the status of that employee. All of your employees are entitled to annual leave, aside from those who work casually. Keep compliant by following this basic checklist. Minimum entitlementsEmployees working full time accumulate four weeks of paid annual leave each year of service. This leave will accrue based on the number of ordinary hours that they work. Annual leave will continue to accumulate during paid leave but not unpaid leave. Shift workersIf you are using shift workers, they are entitled to five weeks of paid leave. The award or registered agreement must apply to the employee. When can annual leave be taken?Annual leave can be taken as soon as it is accumulates. You cannot compel your employees to take the leave each year. However, an employee cannot unreasonably refuse your request to take annual leave, if they have accumulated it over a long period, such as ten years.

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What to consider before signing a franchise agreement

Posted on September 6, 2018 by admin

It is essential to understand what your legal rights and responsibilities as a franchisee entail before buying a franchise. The franchise agreement is a legal document that includes the rights and responsibilities of the franchisee and the franchisor. Before signing the franchise agreement ensure the franchisor has provided you with relevant information about the franchise within 14 days before you start, renew or extend a franchise agreement or pay a non-refundable deposit, as per the Franchising Code of Conduct. This information will include: – A copy of the final form of the franchise agreement. – A copy of the Franchising Code. – A disclosure document. – A short document which outlines the rewards and risks of franchising. Also, consider the following before signing the agreement: – The details of the business (i.e., franchisor’s track record and success rate of other franchisees in the same business). – Your rights and obligations (i.e., guidelines and costs when you sell the franchise). – Fees you will be required to pay under the agreement (i.e., advertising fees, training fees, initial franchise purchase fee). – What is included in the sale (i.e., your intellectual property rights and obligations?). You can choose to terminate a new […]

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Understanding redundancy

Posted on August 7, 2018 by admin

It is important to understand what your legal obligations entail before you make an employee redundant. You must make sure it is a ‘genuine redundancy’. Otherwise, you risk the employee lodging an unfair dismissal claim against you with the Fair Work Commission. Your employee is entitled to make their claim within 21 days from the day after you dismissed them. A genuine redundancy occurs when: – the employee’s job is no longer needed; – and you followed any consultation requirements in the award, enterprise agreement or other registered agreement. Unfair dismissal occurs when you: – dismiss an employee in relation to discrimination, or for a reason that would be considered unjust, harsh or unreasonable; – require someone to do the job (i.e., hire a replacement); – could have reasonably transferred the employee to another role in your business or associated entity, or did not consult your employees about the redundancy under an award or registered agreement. Redundancy pay and entitlements Your employee is entitled to receive a redundancy pay or severance pay when they are made redundant. However, a redundancy pay is not required by some businesses or to casual employees. A redundancy pay amount is usually based upon your […]

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Dealing with separation

Posted on July 13, 2018 by admin

Separating from a partner can be a stressful time. There are many legal considerations to factor in when protecting your finances. To set yourself up for the future, consider the following upon separation: Seek legal advice First and foremost, seek legal advice in relation to access to children, marital property and financial matters. If you are unsure of your legal position or want to look after your divorce, a solicitor can assess your situation and advise you in relation to your legal rights before you start negotiating with your ex-spouse. Sever joint tenancies Joint tenancy means that if one of the joint owners dies, the deceased’s share is automatically passed on to the other joint tenant. This means that if you die, your interest may be automatically inherited by your ex-spouse or partner. Severing the joint tenancy will ensure that your share is dealt with in accordance with your wishes. Update your Will Before the divorce, any gifts to your ex-partner in your Will remain valid. If you die suddenly during the process of separation and before your divorce is finalised, your ex-partner may inherit your property. Seek financial advice You should seek financial advice before making any legal decisions. […]

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Sham Contracting: What you need to know

Posted on June 15, 2018 by admin

Employers who hire and treat an employee as a contractor could face serious penalties as well as claims for super contributions and worker entitlements. A sham contracting arrangement refers to an employer who deliberately attempts to disguise an employee relationship as an independent contracting arrangement. This type of arrangement is illegal and a breach against the Fair Work Act 2009. An employer that engages in a sham contracting arrangement is at risk of receiving: A PAYG withholding penalty (for not deducting tax from worker payments and sending these amounts to the ATO). A super guarantee charge made up of super guarantee shortfall amounts (which are made up of the amount of super contributions that should have been paid into a complying super fund) and an additional super guarantee charge of up to 200 per cent. Interest charges. Administration fee. Each time an employer hires a worker, it is essential to check if the worker will be considered either a contractor or an employee. The difference between the two will affect how the employer’s obligations i.e., for tax and super. To avoid sham contracting, ensure you know the difference. Employee Contractor Ability to subcontract/delegate: the worker cannot subcontract/delegate the work – […]

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