Having recently purchased my first home in regional Victoria, I understand better than most just how difficult it is for Victorian first home buyers to break into the property market.
The Victorian Government has recently announced significant changes to the First Home Owner Grant Scheme and the stamp duty concessions applicable to first home owners. In an initiative to improve property affordability for first home buyers and to encourage regional development, first home owners in regional areas now have significantly more generous benefits available to them. Below is a summary of the changes:
Article on Skinner v Asciano Services Pty Ltd  FWCFB 574
The recent decision of a Full Bench of the Fair Work Commission should cause concern for employers regarding the interpretation of "genuine redundancy" under the Fair Work legislation.
In Skinner v Asciano Services Pty Ltd  FWCFB 574 ("Skinner"), the Commission has cast doubt on the previously settled interpretation of Section 389 of the Fair Work Act 2009.
Until this recent decision, employers knew with some certainty that redundant employees would be unable to successfully make an unfair dismissal application provided that that they could show:
It is timely to remind businesses of the importance of correctly registering security interests in property (other than land) on the Personal Property Securities Register (PPSR) and to reflect on this developing area of the law. A lack of understanding of the law or attention to the rules of registration can be very costly and could result in unexpected outcomes. Two recent NSW cases highlight this and how disastrous mistakes can be.
Two bills to make substantial changes to the Fair Work Act 2009 were tabled in the federal Parliament yesterday.
Following its 2016 federal election promises, on 1 March 2017 the Turnbull government tabled the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 ("Vulnerable Workers Bill") and the Fair Work Amendment (Repeal of 4 Yearly Reviews and other Measures) Bill 2017 ("Repeal Bill").
Appointing the right executor is one of the most important decisions when making a will. In essence the role of an executor is to carry out the last wishes of the will maker by collecting assets, paying liabilities and distributing the testator's assets to those persons whom the testator wished to inherit such assets. The executors must discharge their duties with due care, and in the best interest of the beneficiaries of the estate.
Duties of an executor may involve:
- attending to funeral arrangements;
- locating the will;
- identifying, collecting and protecting all the assets;
- applying to the Supreme Court for a grant of Probate of the last Will if there are assets in the estate which require production of the Probate for the executor to be able to deal with those assets;
- determining and paying liabilities of the estate;
- lodging tax returns and paying taxes;
- selling assets as required;
- communicating with beneficiaries and distributing the estate within a reasonable time;
- defending the estate when the will is contested;
- continuing administration and holding assets on trust if the executor is also appointed as a trustee of the estate.
How often should I review my Will?
Unfortunately, there is no “one size fits all” answer to this question.
However, there are some key life events which should definitely trigger a review of your estate planning arrangements.
A change in your relationship status
“Single”, “married”, “in a relationship”, or “it’s complicated”? As well as updating your Facebook status, be sure to have a look at your Will:-
- Marriage will invalidate a Will. It is possible to prepare a Will “in contemplation of marriage”, so that the Will continues to operate after your happy day, but if you were single when you made your Will, then you will need a new Will after your marriage;
- Divorce will not automatically invalidate a Will, but the operation of the Wills Act will have an effect on gifts to your former wife or husband. It’s best not to rely on the operation of the Wills Act though – check with your solicitor to make sure your Will still operates as intended;
- Entering a new de facto relationship may give rights to your new partner to share in your estate. We often see arguments when someone dies resulting in expensive litigation, particularly when family members may not have known, or accepted, that a genuine relationship existed.
Contemplating retirement, or retiring
You’ve worked hard, and now it’s time to enjoy the fruits of your labour. Right now, your financial affairs are probably as complicated as they will ever be, but that provides great opportunity to ensure that your assets (in particular, your superannuation) are structured to ensure your assets are passing to your beneficiaries in the most tax-effective manner.
Buying or selling property
It’s important to ensure that the property you have worked so hard to acquire is left in accordance with your wishes. Likewise, the sale of a property is a good chance to reflect on your estate planning goals.
This is when I often meet people for the first time – as they are starting to think about ‘grown-up’ responsibilities, and how to care for a new bundle of joy which has just arrived.
Entering into business
There are a number of ways to structure a business – sole trader, Pty Ltd trading company, and partnership, just to name just a few – and each has different estate planning consequences.
A good tip is to put a copy of your Will with your important tax records. That way, when it comes time to do the tax return each year, you will be reminded to review your Will. It should be ok – but if you are not sure, simply give one of our friendly lawyers a call.
A massive congratulations to Kayla Kristensen who was admitted into practice yesterday! She is pictured below with our Employment Law Solicitor, Jessica Duff.
A massive congratulations to Tessa Mead who was admitted into practice yesterday! She is pictured below with our Employment Law Solicitor, Jessica Duff and Director, Andrew Pickles.
Bendigo businesses should expect a visit from the Fair Work Ombudsman ("FWO") in 2017.
The FWO conducts random audits of employment records as part of regional or industry-specific campaigns. It has been some years since Bendigo was targeted by the FWO.
During 2016 the FWO conducted random audits of many regional locations, including 200 businesses in each of Shepparton (November) and Ballarat (December) regions as part of a series of nationwide random audits. The results of the audits will be published in the coming months.
Previous audit results published by the FWO suggest that compliance in regional areas including Bendigo remains low:
An alarming 55% of businesses were not complying with all workplace laws. Small business compliance was particularly poor with only 39% of businesses being fully compliant
The FWO has previously identified many sizeable underpayments by Bendigo businesses including:
All of the above matters came to the FWO's attention as a result of complaints made by employees or audits conducted as part of industry-specific campaigns.
Robertson Hyetts can provide assistance in identifying the correct awards, drafting contracts, employment policies and responding to the FWO in relation to complaints, audits and litigation. Speak to our employment law team, Jessica Duff and Tessa Mead today on 03 5434 6666.
In this issue Jessica talks about the growing strike rate of employer audits carried out by the Fair Work Ombudsman and the broader net being cast to include professional advisors and people managers in the determination of prosecutions and penalties.
Provisions extending liability for contraventions to people "involved" in the breaches of workplace laws and relevant conduct are not new, having appeared in workplace relations legislation for over a decade.
During 2016, the "accessory liability provision" currently contained in Section 550 of the Fair Work Act 2009 ("FW Act") was successfully used by the Fair Work Ombudsman ("FWO") to achieve a number of notable decisions which significantly increase the risk for all advisors to business. The trend looks set to continue into 2017.
Orders have been made against HR managers, payroll and other administrative staff, staff employed to perform recruitment and supervisory duties, entities higher up the supply chain and head franchisors:
"We have been concerned about the role of key advisers, such as accountants and HR professionals, in some serious and deliberate contraventions. Small business relies heavily on trusted advisers, and if they give incorrect or bad advice, or deliberately assist with the contravention, should they not be held accountable? In situations where we believe accountants or other professionals knowingly facilitate contraventions of workplace laws, we are prepared to hold them to account.” (Fair Work Ombudsman Natalie James)
Dealing with the countless demands of running a business, business owners often have little opportunity to consider whether they have the correct documents and procedures in place to protect their business from claims and actions by employees. However, employing staff can be a veritable minefield and addressing the most common employment mistakes, especially if buying a business, can avoid greater losses of time, productivity and costs down the track.
1. Award identification and compliance
The introduction of the Modern Awards in 2010 was intended to simplify the award identification process, however identifying the correct award remains a source of frustration and confusion for some businesses.
Despite the common misconception amongst businesses that there is no award that applies to them, the vast majority of businesses are covered by at least one Modern Award.
It is critical for businesses to identify the award or awards that apply to all staff within their business to ensure that base rates of pay, overtime, penalties and allowances are being paid correctly. Failure to pay correct rates can lead to large underpayment claims and potential prosecution by the Fair Work Ombudsman (“FWO”) seeking the imposition of pecuniary penalties, which can be many times greater than the initial underpayment.
Last week, we briefly looked at Enduring Powers of Attorney. This week, I will answer the most commonly-asked questions regarding Powers of Attorney.
I’ve made a Will. Why do I need a Power of Attorney? A Will is only operative after your death, whereas a Power of Attorney is operative during your lifetime. There’s no overlap, and they perform different functions.
I’m too young to make a Power of Attorney. That’s just for old people! Incorrect. That’s like saying that you don’t need car insurance because you never intend to have an accident! We don’t know what is in store for us tomorrow, so it’s better to have everything in place today.
I have an Enduring Power of Attorney – how do I make sure my Attorneys do what I want? The law requires that anyone acting as your Attorney must do so in your best interests. In addition, the Enduring Power of Attorney allows you to include your own restrictions and safeguards. For example, you might like to have two or more people act together, or limit your Attorney from being able to deal with only certain assets, or require them to take certain factors into account when making decisions.
Enduring Powers of Attorney are a crucial part of the estate planning process. When prepared correctly, they allow someone to make decisions for you and manage your affairs on your behalf. It’s not just a form-filling exercise - the law is continually evolving and becoming more complex in an attempt to strike the right balance between protecting the person giving the power of attorney, and ensuring that the document is useful and practical.
Are there different types of Enduring Powers of Attorney?
Yes, there are a number of different types, and also differences from state to state. In Victoria, the two most important and useful types of Enduring Powers of Attorney are:-
- The Enduring Power of Attorney, and
- The Enduring Power of Attorney (Medical Treatment).
What are the key points that I should know about Enduring Powers of Attorney?
An Enduring Power of Attorney allows you to appoint a person (who is then called your Attorney) to act on your behalf in relation to your financial matters, or your personal matters, or both.
On 26 November 2016, Senator Richard Di Natale, leader of the Greens, recommended that his party consider lobbying for the reintroduction of death taxes in Australia. What is a death tax, and who will it affect?
What is a death tax?
Death taxes exist in many jurisdictions around the world. Typically, they fall into one of two categories:-
1. Either a tax on a deceased estate (known as an estate tax, or death duty); or
2. A tax on the beneficiary (known as an inheritance tax).