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Posts By: Erin Lynch

Electronic execution of documents by companies

The Corporations Amendment (Meetings and Documents) Bill 2021 (Cth) (Amendment Act) was given royal assent on 22 February 2022 and has now come into force. The Amendment Act has amended the Corporations Act 2001 (Cth) (Corporations Act) and builds on the temporary measures introduced last year by the Treasury Laws Amendment (2021 Measures No.1) Act …
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Queensland project trust accounts

Since its introduction in 2020, the Queensland construction industry has been adapting to the Building Industry Fairness (Security of Payment) and Other Legislation Amendment Act 2020 (Qld) (‘BIFOLA’). One of the most significant amendments made by BIFOLA is the introduction of the new trust account framework to replace the previous project bank accounts. The introduction …
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Execution by Strata Bodies

Different strata bodies are formed in different ways under the NSW strata law and have different powers and functions under the relevant instruments. This article aims to set out the various considerations in relation to execution by strata bodies and also highlights the best practice in achieving validly executed documents with the relevant parties. Owners …
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SOPA & statutory demands

There has been some confusion about whether debts which arise under Building and Construction Industry Security of Payment Act 1999 (NSW) (the SOPA) can be enforced using a statutory demand. In Grandview Ausbuilder Pty Ltd v Budget Demolitions Pty Ltd [2019] NSWCA 60 (Grandview v Budget), the NSW Court of Appeal held that all debts …
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Jin Yi Construction Pty Ltd v Romeciti Eastwood Pty Ltd [2022] NSWSC 56

When is a purchaser in an off the plan sale entitled to terminate its contract? The Supreme Court of NSW declared earlier this year in Jin Yi Construction Pty Ltd v Romeciti Eastwood Pty Ltd [2022] NSWSC 56 that the purchaser of a commercial strata unit was entitled to rescind the contract, and ordered the …
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Rise and Fall Clauses in Construction Contracts

Rise and fall clauses have been largely overlooked in the Australian construction industry for over two decades. Interest has picked up in recent months due to rapid increases in materials prices. As we re-enter an inflationary environment, legal practitioners and Contractors should learn about or refresh their knowledge of rise and fall clauses and consider …
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Modern slavery obligations: a Commonwealth and NSW perspective

Background On 1 January 2019, the Modern Slavery Act 2018 (Cth) (“Commonwealth Act”) came into effect and established a national modern slavery reporting requirement. However, this Commonwealth Act had two key inconsistencies in the reporting requirements with the Modern Slavery Act 2018 (NSW) (“NSW Act”) as follows: the NSW Act reporting threshold was initially $50 …
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You’re dismissed…or maybe not: when a demotion may not amount to a dismissal

In a recent decision, the Fair Work Commission Full Bench (FWCFB), in considering the meaning of “dismissal” under section 386 of the Fair Work Act 2009 (Cth) (FW Act), has found that a 10% salary reduction did not amount to a dismissal. Following an investigation into allegations of misconduct, NSW Trains took disciplinary action against …
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Dealing with ipso-facto clauses and step in rights in construction insolvencies

Security of Payments

What you need to know The construction industry is currently experiencing a high number of insolvencies. Various moratoria arise on a builder entering into external administration which can impact upon the rights that can be exercised by developers, sub-contractors and suppliers. Amongst other restrictions, this includes prohibitions on counterparties taking advantage of ipso facto clauses …
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Case Note: Equa Building Services Pty Ltd v A&H Floors 2 Doors Australia Pty Ltd [2022] NSWSC 152

The recent Supreme Court decision in Equa Building Services Pty Ltd v A&H Floors 2 Doors Australia Pty Ltd [2022] NSWSC 152 (Equa) has re-emphasised the importance of strict compliance with the provisions of the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act). In particular: contractors and subcontractors must ensure that construction …
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Tranche II Building Reform Proposals

The NSW Government has tabled proposed amendments to key construction laws, including the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOPA) and the Design and Building Practitioners Act 2020 (NSW) (DBPA), which it refers to as the Tranche II building reforms. On Wednesday 23 February 2022, a roundtable discussion between the NSW …
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The addition of absolute discretion in EOT clauses – No notices – no extensions of time

The New South Wales Supreme Court’s decision in Growthbuilt Pty Ltd v Modern Touch Marble & Granite Pty Ltd [2021] NSWSC 290 (Growthbuilt) has extremely significant implications regarding extension of time (EOT) clauses. Contractors and legal practitioners must take note of this momentous decision. Implications for contractors The key takeaway from Growthbuilt is that a …
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Employee or Contractor?: the High Court decides

The High Court of Australia (HCA) handed down two major decisions that highlight the importance of getting contractual terms correct and how those terms can determine the nature of the relationship. In the two decisions, the HCA makes clear that where the terms of the parties’ relationship are comprehensively committed to a written contract, (and …
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Payment Schedules Must Contain Proper Reasons to Withhold Payment

It is tempting to respond in a Payment Schedule with the words “pending”, “insufficient information“ or  “we will not pay your claim until all works are finished”. However, these types of unsubstantiated reasons will not work. In the NSW Supreme Court of Appeal case, Joye Group Pty Ltd v Cemco Projects Pty Ltd [2021] NSWCA …
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Security Of Payment Act: work within 12 months a matter for the adjudicator

Under the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act), unless the contract provides otherwise, a payment claim may only be made within 12 months after the work to which the claim relates was last carried out (section 13(4)(b)). In EQ Constructions Pty Ltd v A-Civil Aust Pty Ltd [2021] NSWSC 1604; …
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I can manage myself – A lesson in bullying and performance management

The Fair Work Commission (FWC) has rejected an employee’s application for anti-bullying orders, after finding the employee had, on occasions, been “blatantly misogynistic”. The employee, who began reporting to his female supervisor last year, was put on a performance improvement plan (PIP) by the supervisor, following concerns about his performance, including missing targets, late starts …
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New changes to community land laws

The Community Land Development Act 2021 (NSW) (Development Act) and Community Land Management Act 2021 (NSW) (Management Act) reforms have commenced on 1 December 2021. The new laws are aimed to modernise the development, management and operation of community schemes in NSW. See below brief introduction on community schemes and summary on the key legislative …
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Decennial Liability Insurance

After a spate of issues plaguing the building and construction industry in recent years, the NSW government is proposing the introduction of a decennial liability insurance scheme (DLI) with the view of increasing protections for owners and purchasers of residential apartments. What is DLI? DLI is a mandatory defects insurance scheme which affords purchasers of …
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Government introduces the Religious Discrimination Bill 2021 (Cth)

This week the Morrison Government has introduced into Parliament the Religious Discrimination Bill 2021 (Cth) (Bill) . The Bill seeks to make it unlawful to discriminate against a person on the ground of religious belief or activity in various areas of public life, including work, education, access to premises and the provision of goods, services …
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More Than A (Bare) Pleading – The Implications of the Supreme Court’s First Decision on the Statutory Duty of Care under the DBPA

The New South Wales Supreme Court has issued its first decision concerning the statutory duty of care in section 37 of the Design and Building Practitioners Act 2020 (NSW) (DBPA), which carried important implications in relation to the operation of the statutory duty of care in defects disputes. Vincent Young has previously reviewed the operation …
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Charging clauses in residential home building contracts

This article considers whether a licensed contractor can insert a charging clause in a residential home building contract. This question is important because it determines whether a licensed contractor can secure their entitlement to receive payment from a residential homeowner.  A secured entitlement helps mitigate the risk of non-payment. Charging clauses In the past, it …
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Webinar: Key themes for workplaces as 2021 comes to an end

In this recent webinar, Erin Lynch, Employment Partner, discussed the key themes for workplaces as we return back to “normal” and 2021 comes to an end. Erin addressed the following topics: vaccinations; returning to the “workplace”; key workplace decisions; changes to sexual harassment laws; casual conversion terms in modern awards; and changes to superannuation. Donwload …
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National Security Actions: the new foreign investment review framework

Earlier in January 2021, the Foreign Investment Review Board (FIRB) introduced a new national security test. Many investments and acquisitions which were previously not ‘notifiable actions’ or ‘significant actions’ under the Foreign Acquisitions and Takeovers Act 1975 (Cth) (FATA) are now subject to compulsory or voluntary notifications. Under the new changes, the Treasurer is also …
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Have you got a contract or are you still negotiating?

Imagine this. You’ve spent months negotiating a deal.  Today, you and your counterparty agreed the last of the important terms.  Your lawyers still need to finalise the written document but you and your counterparty shook hands on the deal at the end of a meeting. Have you got a contract? The answer is “depends”.  There …
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Privity of Contract: The role of statutory warranties for third parties to construction agreements

Increasingly, we are reviewing contracts whereby developers seek to provide benefits to third parties by increasing who the contractor owes its obligations to under a contract. For example, a developer may amend all the indemnities in a contract to benefit “Indemnified Parties”. These “Indemnified Parties” are ordinarily third parties which have an interest in the …
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Webinar: Dealing with absent employees in the workplace

In this recent webinar, Erin Lynch, Employment Partner, discussed how to manage absent employees, best practice in dealing with unfit employees and potential legal risks. Erin addressed the following topics: Absent employees; Employees unfit for work; Making reasonable accommodations and adjustments; Independent medical examination; Termination of employment; Legal risks; and Practical tips. Download the slides …
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Contracting Out of Statutory Limitation Periods

Recently the High Court of Australia (Court) held that parties may validly contract out of statutory limitation periods. This decision will likely have broad application and impact on clauses in contracts moving forward. Care should still be taken when drafting contractual clauses that seek to exclude statutory limitation periods as the decision may not apply …
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Promissory estoppel

Commercial parties tend to operate in fluid and fast paced environments. Frequently formal contracts are entered into or amended late or possibly not at all. Time constrains, cost constraints or simply oversight are often to blame. Failing to record deals in contracts puts commercial parties at risk. One party may decide to walk away from …
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Webinar: A Roadmap for Respect – The Key Legislative Change and the Respect@Work Report

Erin Lynch, Employment Partner at Vincent Young Lawyers recently presented a webinar on Sexual Harassment in the Workplace. Erin, covered the following topics: The definition of sexual harassment. Statistics. Key recommendations for employers. Legislative changes including the Fair Work Act and Sex Discrimination Act. The impact for employers and the workplace. Download the slides here: …
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What’s your age again? The AHRC has released a report on ageism in Australia

Discrimination takes many forms. When we think about “age discrimination”, discrimination against “older” workers is generally the first thing that comes to our mind. However, the reality is that young people are also subject to this type of discrimination. In the workplace, older and younger workers experience ageism and discrimination of different kinds, which has …
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Residential builders and their claims under the Security of Payment Act

Effective from 1 March 2021, the operation of the Building and Construction Industry Security of Payment Act 1999 (NSW) has been expanded due to an amendment made to the Building and Construction Industry Security of Payment Regulation 2020 (NSW) (collectively, ‘Security of Payment Laws’). The Security of Payment Laws now apply to ‘Owner occupier construction …
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Signing Documents in the Digital Age

With the current lockdown forcing many offices to close, we have seen an increase in the number of queries from clients regarding the remote execution of documents. This article provides a “how to” guide for valid electronic execution of documents if you are signing a document on behalf of a company in NSW. Deed or …
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Activating development consents

In NSW, a development may or may not require consent, depending on the conditions in an environmental planning instrument. Developments which do not require consents are usually very low impact developments and are referred to as exempt developments. This article focuses on developments which require consents and that include complying developments, state-significant developments as well …
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Webinar: Workplace Engagement – Employee, Contractor or Something Else

Erin Lynch, Employment Partner at Vincent Young Lawyers recently presented a webinar on Employees and Independent Contractors. Erin, covered the following topics: What’s the difference between an employee and contractor? The impact on modern workplace relationships What happens if you get it wrong Practical tips for navigating these issues Download the slides here:

Caveats – who, what, why?

What is a caveat? A caveat is a form of warning with respect to land.  A caveat alerts others that the person who lodged the caveat (caveator) has an unregistered interest in the land against which the caveat is lodged (although at times it may not be an eligible interest in which case it is …
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Changes to Company Electronic Execution

Background The most common method by which a company may execute a document is that prescribed by s127 of the Corporations Act 2001 (Cth) (Corporations Act). By doing so, parties dealing with the company can be protected by relying on the assumptions listed in s129 of the Corporations Act when dealing with the company, including …
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Introduction to the PPSA

Most businesses and many individuals will be asked to either give a security interest over their personal property or will want to benefit from a security interest over another’s personal property.  Personal property is any property which is not land. The Personal Property Securities Act 2009 (Cth) (PPSA) provides a uniform system of registration for …
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Webinar: Performance Management – What you need to know

Join Erin Lynch as she discusses how to manage employees’ performance and, if appropriate, termination of employment. Erin will be addressing the following topics: performance management vs performance reviews; performance management and bullying; performance management in a remote context; the responsibilities of managers; termination of employment; legal risks; and practical tips. https://www.youtube.com/watch?v=-TM4i7Xu5mI

Settlement agreements in building disputes – a cautionary tale

A recent decision of the New South Wales Supreme Court in The Owners – Strata Plan No 85561 v Omaya Holdings Pty Ltd [2021] NSWSC 918 (Omaya) examined and enforced a settlement agreement executed as between an Owners Corporation (OC), a builder (Builder) and a developer (Developer). The decision of the Court in Omaya represents a …
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The Personal Property Securities Act 2009 (Cth) and retention of title

If you supply goods under retention of title arrangements, you need to know about the Personal Property Securities Act 2009 (Cth) (PPSA). Registering your interest in goods supplied under retention of title arrangements on the Personal Property Securities Register (PPSR) is essential to protect suppliers in the event of purchaser insolvency. Retention of title Retention …
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Interior Designers and the Application of the Design and Building Practitioners Act

  Interior Designers and Registration “Interior Architects” who make designs concerning Building Work would need to be registered as an Architect or Building Designer (Low/Mid-rise) to make compliance declarations. Building Work refers to: the construction; alteration or addition; repair or renovation; or protective treatment, of a Class 2 Building Element. For this scheme, Building Element …
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New levy, penalties and prohibitions to the RAB Act and the DBP Act.

On 8 June 2021, the NSW Parliament passed the Building Legislation Amendment Act 2021 (Amending Act) which made several key amendments to the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW) (RAB Act), and the Design and Building Practitioners Act 2020 (NSW) (DBP Act). The Amending Act focuses on enhancing the compliance and enforcement powers of …
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CPB held to its DEAL

A recent decision of the New South Wales Supreme Court in CPB Contractors Pty Ltd v DEAL S.R.L. [2021] NSWSC 820 confirmed the pro-arbitration approach of the Supreme Court and examined interesting issues concerning: the breadth of the kompetenz-kompetenz principle, and whether the Court or an arbitrator should determine if a “matter” falls within the …
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Morrison Government proposes changes to sexual harassment and sex discrimination laws in the workplace

The Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Cth) (Bill) was introduced into the Senate last week. The intent of the legislation is to amend the Fair Work Act 2009 (Cth) (FW Act), the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) and Sex Discrimination Act 1984 (Cth) (SD Act) …
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Construction company wins case on exception to redundancy payments

A Full Federal Court has found, in a case involving a construction company and the CEPU, that the “ordinary and customary turnover” exception to redundancy pay in section 119 of the Fair Work Act 2009 (Cth) applied to employees employed for a specific construction project. At first instance, the primary judge found that the employees …
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National Minimum Wage and Modern Award Minimum Wages to increase by 2.5%

Yesterday, the Fair Work Commission (FWC) handed down its decision as part of its annual wage review announcing an increase of 2.5% to the national minimum wage and the minimum wage rates in modern awards. From the first full pay period on or after 1 July 2021, the national minimum wage will be $772.60 per …
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Webinar: Workplace predictions for 2021-2022

Join, Erin Lynch, where she will discuss the hot topics for the next 12 months in the workplace. Erin will address the following topics: Changes to minimum wages; Employees and contractors; Sexual harassment; Workplace flexibility; and Changes to modern awards.

When a piccolo café latte might cost you your job

The Applicant, Ms Ajax, made an application to the Fair Work Commission (Commission) for an unfair dismissal remedy. Prior to being dismissed on 1 July 2020, she worked on a full-time basis for the Respondent, Credit Union Australia Ltd (CUA), as a Customer Service Specialist. As part of her position, Ms Ajax was required to offer …
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Webinar: Changes to casual employment – what you need to know

Erin Lynch, Vincent Young Employment Partner, recently presented a webinar where she discussed the legislative changes to casual employees and the impact on organisations. Erin addressed the following topics: who is a casual employee? casual employment under modern awards; casual conversion; casual loading and “double dipping”; the Casual Employment Information Statement; and practical tips for …
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Get the “jab” – mandatory COVID-19 vaccination for employees?

With the COVID-19 vaccine rollout starting in Australia, organisations are considering whether or not they are able to mandate that their employees get vaccinated. The answer…it depends (noting that there is yet to be a decision by the Courts on this question). Employers, in directing employees to get vaccinated, will need to assess each case …
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IR Reforms: Stripped back to amendments to casual employment

Yesterday, the amended Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2021 (the “Bill”) passed Parliament, after the House of Representatives accepted the Senate’s amendments. The Bill, as introduced in Parliament in December 2020, has been reduced to include only changes to casual employment. These changes include: a definition of casual employee based …
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Are you ready for it? JobKeeper 2.0 and the changes to flexibility under the Fair Work Act

The Coronavirus Economic Response Package (JobKeeper Payments) Amendment Act 2020 (Act) received royal assent on 3 September 2020. We have set out the key changes to the Fair Work Act 2009 (Cth) (FW Act) for employers below. Legacy employers The changes allow “legacy employers” to issue JobKeeper enabling directions to eligible employees. Legacy employers are employers who …
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The calculation of personal leave has been ‘put to bed’ by the High Court

The High Court has determined that, for the purposes of paid personal/carer’s leave, a “day” means a “notional day”, consisting of 1/10th of an employee’s ordinary hours of work in a two-week (fortnightly) period or 1/26th of the employee’s ordinary hours of work in a year. How does this work in practice? It means, for …
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JobKeeper 2.0 – An extension of the JobKeeper payment, with some changes

  Modified JobKeeper payment The JobKeeper payment, which was originally due to expire on 27 September 2020, will now continue until 28 March 2021. From 28 September 2020, the payment rate of $1,500 per fortnight for eligible employees and business participants will be reduced as set out below. 28 September 2020 – 3 January 2021 …
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Schedule of rates or lump sum? Pick your poison

On 29 May 2020, the New South Wales Court of Appeal (Court of Appeal) handed down its decision in C&V Engineering Pty Ltd v Hamilton & Marino Builders Pty Ltd [2020] NSWCA 103. The case deals with a common dispute in construction supply contracts: whether the contract is a ‘schedule of rates contract’ or a …
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Security of Payments: retention trust accounts on $10 mill projects

The NSW Government is proposing to repeal the current 2008 regulations to the Building and Construction Industry Security of Payment Act 1999 (NSW) replacing them with a new set of regulations: the Building and Construction Industry Security of Payment Regulation 2020. A key change is the requirement for head contractors to maintain retention money trust …
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Fundamentals: Employment + Workplace Relations (2020/2021)

  The Vincent Young Employment + Workplace Relations team has updated its Employment + Workplace Relations Guide to reflect the changes for this financial year. Download your copy below.     If you would like to discuss this further and the implications for your business please contact our Employment + Workplace Relations Partner, Erin Lynch. …
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Introduction of new law relating to serious defects and issuance of occupation certificates

Introduction The Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW) (Act) was assented to on 10 June 2020 and will commence on 1 September 2020. The Act applies retrospectively and significantly impacts residential projects delivery, completion, developer cash flow and contractors risks. Developers (you) must note these changes and take relevant measures to …
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National Minimum Wage and Modern Award Wages increase by 1.75%

Each year the Annual Wage Review is undertaken by an Expert Panel of the Fair Work Commission (Panel). National Minimum Wage This year, the Panel has determined to increase the National Minimum Wage (NMW) by 1.75%. From the first full pay period on or after 1 July 2020, the NMW will be $753.80 per week …
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NSW defect reform | 10 year retrospective duty of care introduced

The Building and Design Practitioners Act 2020 (NSW) (Act) has commenced. The Act is part of the wider suite of reforms the NSW Government is introducing following recommendations made in the 2018 Shergold and Weir Building Confidence Report. Duty of care on builders The Act creates a statutory duty of care on residential builders to owners of …
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Is your casual workforce really casual? The answer might be no.

A recent decision by the Full Federal Court has found that an employee who was employed by a labour hire business as a casual and paid as a casual, was in fact “other than a casual employee” for the purposes of: section 86 of the Fair Work Act 2009 (Cth) (FW Act) – dealing with …
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Security of Payment update | absence of supporting statement not fatal

Since supporting statements were introduced into the Building and Construction Industry Security of Payment Act 1999 NSW (Act) a question has been whether a payment claim served without one (or with deficiencies in one) is still valid. The answer The Court of Appeal in TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] …
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What JobKeeper disputes can the FWC can deal with?

Today, the Fair Work Commission (FWC) has ruled that it has jurisdiction to deal with a dispute about an employer’s practices in respect of the wage condition and minimum payment guarantee obligations that arise under the Fair Work Act 2009 (Cth) (FW Act) from the JobKeeper scheme. The FWC determined that: At the time of …
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Variation to redundancy pay during COVID-19

Two recent Fair Work Commission (FWC) decisions provide guidance to employers about the approach to varying redundancy pay during the time of COVID-19. The key takeaways are: the FWC may encourage you to consider alternatives to the termination; the onus is on the employer to establish that it cannot pay the amount; and anticipation of …
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Downloading COVIDSafe…a note to employers

As restrictions around our mobility start to ease, we will likely see more and more employees return to the workplace. At the same time, the Federal Government is encouraging us all to download the tracing application “COVIDSafe”. While it may seem logical that employers have their employees download “COVIDSafe” as they return to workplaces, a …
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NSW Government announces first tranche of projects for fast-tracked assessment

On 28 April 2020, in a bid by the NSW Government to stimulate and lift the economy out of the COVID-19 pandemic, it announced the first tranche of construction projects to undergo the Planning System Acceleration Program (Program). The first tranche of projects The first tranche of projects to undergo the Program consists of 16 …
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JobKeeper FAQs: eligibility and payments

Vincent Young has compiled a list of FAQs to help employers understand the JobKeeper scheme.     If you would like to discuss this further and the implications for your business please contact our Employment + Workplace Relations Partner, Erin Lynch. Erin Lynch, Partner M +61 477 330 202 E erin.lynch@vincentyoung.com.au The contents of this publication do not …
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JobKeeper FAQs: directions and agreements

Vincent Young has compiled a list of FAQs to help employers who qualify for the JobKeeper scheme. NOTE: The ability to provide these directions and reach these agreements comes from the temporary changes to the Fair Work Act 2009 (Cth) and applies only where the employer qualifies for the JobKeeper Scheme and is entitled to …
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COVID-19 UPDATE: Construction sites permitted to operate on weekends + public holidays

Two Ministerial Orders have been released in relation to the operation of construction sites under the Environmental Planning and Assessment (COVID-19 Development – Construction Work Days) Order 2020 and the Environmental Planning and Assessment (COVID-19 Development – Infrastructure Construction Work Days) Order 2020 (collectively, Orders). Under both Orders, construction sites are now permitted to operate …
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Galaxy Developments Pty Ltd v Civil Contractors (Aust) Pty Ltd t/a CCA Winslow & Ors [2020] QSC 51 (Galaxy Developments Case)

The recent decision of the Queensland Supreme Court in Galaxy Developments Pty Ltd v Civil Contractors (Aust) Pty Ltd t/a CCA Winslow & Ors [2020] QSC 51 (Galaxy Developments) examined whether an adjudication determination delivered outside the time period prescribed under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (Act) is void. Facts …
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COVID 19 Update – Temporary Changes to Foreign Investment Framework

Temporary changes to Australia’s foreign investment review framework were effective as at 10.30pm, by legal time in the ACT, on 29 March 2020 (Effective Time). The changes were made in response to the economic impact caused by the COVID-19 pandemic. Key changes and implications Key changes to the foreign investment review framework and their implications …
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COVID 19: changes to the Fair Work Act 2009 (Cth) give employers more flexibility

The Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 (Cth) provides for temporary amendments to the Fair Work Act 2009 (Cth) to assist those employers who are eligible for the jobkeeper scheme. The amendments provide for the implementation of further flexibility to deal with the impact of COVID-19. The amendments provide for employers …
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COVID-19 Update: SME Commercial Leasing Code of Conduct

The National Cabinet agreed to implement a mandatory Code of Conduct on commercial leasing (Code), details of which were revealed on 7 April 2020. The Code imposes a list of good faith leasing principles to existing leasing arrangements across Australia, in response to the economic impacts caused by the COVID-19 pandemic. The Code will be …
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COVID-19 Update for employers: three changes you may have missed

With things changing so rapidly, you may have missed some recent temporary amendments to legislation and modern awards that have been introduced to provide greater flexibility to employers (and employees) during this time.  These changes have come into effect in the last week and impact on the taking of long service leave in New South …
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COVID-19 Emergency Lease Legislation

The COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) (‘COVID Act‘) was assented to and became effective as at 25 March 2020. The COVID Act was introduced by the NSW Parliament to address the public health emergency impacts caused by COVID-19 in New South Wales. The measures introduced by the COVID Act will generally operate on …
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Temporary amendments to Australian insolvency laws due to coronavirus effective today

The Coronavirus Economic Response Package Omnibus Act 2020 (Cth) (Act) has come into force.  The Act, among other things, makes temporary amendments to the Australian insolvency and corporations laws in light of the economic impacts of the coronavirus. Why have the amendments been made? The Act provides temporary relief for financially distressed businesses and individuals in …
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Stay or leave: a guide to coronavirus for employers

The employment law team has been assisting clients in traversing the issues that every employer will likely encounter following the outbreak of novel coronavirus (COVID-19) and has developed a quick reference guide. The issues are varied and, in some instances, complex. We encourage you to seek assistance early to avoid falling foul of your legal …
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What does the future hold? – the changing landscape for employers in Australia

Changes to the industrial relations system are looming, with the Prime Minister asking the Attorney-General in his capacity as Minister for Industrial Relations to look at the system and the Minister releasing two discussion papers seeking input about the operation of certain parts of the system. The closing date for submissions is 3 April 2020. …
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Reinstatement win for an employee who tested positive for cannabis

A 64 year old employee with six years’ service has been awarded reinstatement by the Fair Work Commission (FWC). The FWC determined that there was no valid reason for dismissal and even if there was a valid reason, the termination of employment was still harsh given the employee’s personal and financial circumstances. The lessons for …
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Are confidential wage rates in enterprise agreements a thing of the past?

In this Full Bench decision, it was found that the Commission lacked the necessary power to redact the wages rates in the published version of an enterprise agreement. This is the first Full Bench decision to consider the proper construction of sections 601(4)(b) and 594(1) of the Fair Work Act 2009 (Cth) (FW Act). This …
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All in a day’s work: a landmark decision on personal/carer’s leave entitlements

The Full Federal Court has handed down an important decision about personal/carer’s leave entitlements under the Fair Work Act 2009 (Cth) (Act). This decision is now the authority for how personal/carer’s leave should be treated and, for some employers, will have significant implications on how they treat personal/carer’s leave. The Court has said that: eligible …
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“Poisonous employee” wins claim of adverse action

“Poisonous employee” wins claim of adverse action

This recent Federal Circuit Court decision reminds us of the need for employers to ensure that redundancies are implemented on the basis of genuine operational reasons. A decision to terminate an employee’s employment or disestablish an employee’s position where there is a lack of evidence around the operational reasons for the decision is likely to …
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Are you next?: the implications of underpaying staff

The recent headlines involving celebrity chef George Calombaris and the MADE Group of Restaurants serves as a warning to employers about workplace compliance and the consequences of getting it wrong. Fair Work Ombudsman Sandra Parker says “the Fair Work Ombudsman is cracking down on underpayments in the Fast Food, Restaurant and Café sector, and we …
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Changes to legislation for off-the-plan sales

The Conveyancing (Legislation) Amendment Act 2018 (Act) was passed by Parliament on 13 November 2018. It deals with aspects of electronic land transactions and off-the-plan sale contracts for residential property. The sections of the Act dealing with electronic land transactions took effect on assent being 22 November 2018. The sections introduced to provide greater protections …
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Employee or contractor – which one is it?

The Fair Work Commission (FWC) has once again confirmed that parties cannot alter the true nature of a relationship by putting a different label on it. “It would be hard to find a clearer case where the indicia were so strong as suggesting this to be an employment relationship and not a contractor relationship.  I …
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Changes to the Security of Payment Act to commence on 21 October 2019

Security of Payments

The NSW Government has proclaimed 21 October 2019 as the day on which the Building and Construction Industry Security of Payment Amendment Act 2018 No 78 will commence, introducing the following key changes to the Building and Construction Industry Security of Act 1999 (NSW) (Act): the concept of “reference dates” has been removed with payment …
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5 key changes to employment laws on 1 July 2019

National Minimum Wage Each financial year, the Fair Work Commission’s (FWC) Expert Panel for wage reviews undertakes it annual wage review and subsequently publishes its decision. This financial year, the FWC’s decision has resulted in the new national minimum wage being set at $740.80/week or $19.49/hour from the first full pay period on or after …
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NSW Government considers new legislation against contractors

In the wake of two well-publicised damaged apartment blocks, the NSW Government has released an update on their plan for legal reform within the building and construction landscape. In short, the NSW Government proposes further regulation and a statutory duty of care. In June 2019, the NSW Government released the “Building Stronger Foundations Discussion Paper” …
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Stay on adjudicated amount prevents DSD ‘rising from the ashes’

  TALKING POINTS: Contractor’s risk of insolvency Implications on adjudication determination under the Security of Payment Act NSW (SOP Act) Illegal phoenix activity Greenwood Futures v DSD Builders (No 2) [2018] NSWSC 1471 In Greenwood Futures v DSD Builders (No 2), the NSW Supreme Court granted a continuation of stay on an adjudicated amount in …
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A developer’s liability arising from an unsigned contract

  On Appeal (3 August 2018), it was found that builders and persons that are considered to be  developers can be equally held liable for defects, under the New South Wales Home Building Act 1989 (HBA) in breach of the statutory warranties.   FACTS AT FIRST INSTANCE Mr and Mrs King (Kings) owned a warehouse …
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Ipso facto clauses on insolvency

  On 12 September 2017, reforms to Australia’s corporate insolvency were passed by both Houses of the Australian Federal Parliament, which includes:[1] a) a safe harbour for company directors from personal liability for companies trading insolvent; and b) a stay on the enforcement of ipso facto clauses during a period of restructuring of a company. …
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Separable Parts in Staged Development

The Strata Building Bond Scheme, which was introduced by the Strata Management Act 2015 (the Act), provides that in situations where the Act applies (See New strata law and building bond regime are set to commence), the developer must give a security (“building bond”) to the Secretary of the Department of Finance, Services and Innovation …
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Are you Guaranteeing an Indemnity?

Introduction It is common for a contractor to provide an indemnity and/or a guarantee to a principal under a construction contract. However, contractors must know that the two are fundamentally different. They should not take on additional obligations/risks than what is agreed between the parties under the construction contract. For ease of understanding, we shall …
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Stamp Duty Relief for Australian-Based Foreign Developers

A bill has recently passed through both Houses of the NSW Parliament entitled the State Revenue Legislation Amendment (Surcharge) Bill 2017 (NSW) (Bill) which targets Australian-based developers that are foreign persons (Foreign Developer). It has received assent but is to commence on a date to be proclaimed. We await the proclamation, which is yet to …
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Changes To Fire Safety Requirements In The 2016 National Construction Codes – Could This Affect Your Project?

  Following the Lacrosse Apartments fire in Melbourne, the Australian Building Codes Board (ABCB) began to develop a comprehensive package of fire safety measures for high rise buildings which was to be incorporated into the next version of the National Construction Code (NCC). However, following the Grenfell Tower fire in London, the Building Ministers’ Forum …
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Deferral of Strata Building Bond Regime to 1 January 2018

The commencement of the strata building bond regime has been deferred from 1 July 2017 to 1 January 2018. This means that the regime will not apply if the construction contract (to carry out residential building work associated with a new strata scheme) was signed before 1 January 2018. The regime will apply if the …
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NSW Government to impose increased stamp duty and land tax surcharges on foreign persons (including foreign owned developers)

The NSW Budget Statement (released on 20 June 2017) has provided further details on how the increased stamp duty and land tax surcharges will affect foreign owned developers. To recap, on 1 June 2017, the NSW Government announced its intention to increase the surcharges as such: Summary Foreign owned purchasers of residential property will be …
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Proposed cap on foreign ownership in New Dwelling Exemption Certificates aimed at reducing pressure on housing affordability.

In the 2017-2018 Federal Budget the Government announced several changes aimed at reducing pressure on housing affordability, some of which affect foreign ownership of Australian residential property. The biggest change is the introduction of a cap on foreign ownership in new developments, through a condition on New Dwelling Exemption Certificates applied for after 7:30PM (AEST) …
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Changes to NSW Retail Leasing Legislation to Commence on 1 July 2017

On 5 April 2017, the New South Wales Government signed and sealed a Commencement Proclamation which will bring into effect the Retail Leases Amendment (Review) Act 2017 (NSW) (Act) on 1 July 2017 as the day on which that Act commences. Among other things, the Act will introduce tighter obligations on the lessor by way …
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Building Approval Statistics: what they are and what they mean to you

These statistics on Building from the Australian Bureau of Statistics (ABS) published in February 2017 show some very interesting trends. The salient figures worth noting is that, at the time of publication, there has been a slightly downwards trend for all building by 0.1% for the last 7 months but the ride down is bumpy …
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You, Me and the Garnishee

The first question clients ask when obtaining a favourable judgment is “how will we enforce this judgment against the debtor?”. The quickest and most effective way to enforce a judgment debt is to obtain a garnishee order from the Court. This article sets out the key elements of garnishee orders so that you can enforce …
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Creditors to be vigilant when using the statutory demand procedure to enforce an Adjudication Certificate

Introduction During the process of obtaining payment under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act), a Contractor (or Subcontractor) may, after obtaining an adjudication certificate and filing the certificate in the court of competent jurisdiction, serve a statutory demand on the Principal (or Contractor) demanding payment. In the matter …
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Adjudication determinations are not reviewable for non-jurisdictional errors of law

In our June 2016 issue of Construction, Property & Projects Insights (Issue 4), we discussed the first instance decision of Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2016] NSWSC 770, in which the Supreme Court of NSW held that adjudication determinations were subject to judicial review for non-jurisdictional errors of law on …
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High Court rules that a payment claim is invalid without a valid reference date

Introduction In our November 2016 Construction, Property & Projects Insights (Issue 5), we noted that the High Court was soon to release judgment in Southern Han Breakfast Point Pty Ltd (In Liquidation) v Lewence Construction Pty Ltd [2016] HCA 52 (Southern Han Decision), which would be the first time the High Court had given judgment …
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Developers to be allowed to resell off-the-plan dwellings after failed sales

The Federal Government has announced its intention to pass legislation under the foreign investment framework to allow foreign buyers to purchase an off-the-plan dwelling when another foreign buyer has failed to reach settlement and the contract has been rescinded or terminated. The main legislative issue for developers is what currently constitutes a new dwelling. Under …
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Building Energy Efficiency Certificates (BEEC) – changes from 2017

The position regarding Building Energy Efficiency Certificates (BEEC) in Australia is in a transition phase as a result of changes to the Commercial Building Disclosure Program (CBDP), which exists under the Building Energy Efficiency Disclosure Act 2010. Currently, lessors are required to provide energy efficient information when they lease or sell commercial office space of …
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Construction, Property & Projects Insights Issue 5 – November 2016

In this issue, we look at the following key developments in construction, property & projects law: Security of Payments Goes to the High Court Unfair Contract Terms in the Construction Industry – You Need to Take Action New Strata Laws and Building Bond Regime Set to Commence Loose Lips Sink Ships – Representations During Negotiations …
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Proposed changes to retail leasing legislation – what you need to know

On 8 November 2016, the NSW government introduced the Retail Leases Amendment (Review) Bill 2016 (Bill), which seeks to amend the Retail Leases Act 1994 (Act). The Bill provides further protection to a lessee consistent with the general legal environment of increased ‘consumer’ and small business protection. This article examines some of the key changes …
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Vincent Young Annual Luncheon – Est.

On Friday 14th October 2016, Vincent Young hosted its Annual Luncheon at Est. Our Annual Luncheon is an opportunity for us to thank our existing clients as well as get to know companies and businesses we admire and would like to work with in the future. The luncheon featured speeches from Carolyn Cummins, the Commercial Property Editor …
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Loose Lips Sink Ships – Representations During Negotiations

Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26 This Victorian case illustrates the problem with talking loosely during negotiations. The case worked its way from the Victorian Civil & Administrative Tribunal (VCAT), through the Victorian Court of Appeal and finally to the full bench of the High Court. The Facts The …
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Unfair Contract Terms in the Construction Industry – You Need to Take Action

Unfair Contract Terms in the Construction Industry – You Need to Take Action In November 2016 new legislative changes will see negotiating power swing away from larger businesses towards small businesses. This article looks at: the changes to the Australian Consumer Law which will extend unfair contract protections to small businesses (less than 20 people …
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New strata building bond scheme is set to commence 1 July 2017

 What is the Building Bond Scheme? The building bond scheme is a regime whereby developers of residential strata schemes have to: lodge a bond with the Department of Finance, Services and Innovation (DFSI); and arrange for defects inspections within the strata scheme after completion of the building work. Does the Building Bond Scheme Apply to …
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Construction, Property & Projects Insights Issue 4 – June 2016

In this issue, we look at the following key developments in construction, property & projects law: Contractual Clauses Limiting the Accrual of Reference Dates or a Right to a Progress Payment | Are Your Clauses Void? Supreme Court Overturns Adjudication Determination for Failure to Apply LDs Case Law Developments | Required Form of a Supporting …
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AFR – Property Industry Fights War for Talented Staff to Meet Growing Demands in Boom Time

The following article was published in The Australian Financial Review on  12 February 2015 by Michael Bleby. The principal of Vincent Young, Brett Vincent, offered his insight into the trends of the construction and property industry hiring boom. The property industry is going through a hiring boom as demand surges for construction- and property-related services. Jobs …
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Commercial Construction and a Duty of Care

Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36 The High Court of Australia has unanimously held that Brookfield Multiplex Ltd (Brookfield) did not owe a duty of care to prevent economic loss suffered by the Owners Corporation in a strata-titled complex it constructed. Brookfield was in fact not liable to Owners Corporation Strata …
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Asbestos Register

If you are in management or control of a workplace, then you must keep an asbestos register – a document that lists all identified or assumed asbestos in a workplace. If asbestos has been identified and you do not have a register, then penalties of up to $18,000 may apply.1 The register should be reviewed at …
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Product Safety Recall – Electrical Cable

Please be advised that on 27 August 2014 the Australian Competition and Consumer Commission (ACCC) released a Product Safety Recall of all, INFINITY & OLSENT branded Infinity TPS (flat and flexible) & Orange Round low voltage electrical cables of all sizes, configurations and models that are polymeric insulated and PVC sheathed/insulated The safety recall is …
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The PPSA and Equipment on Site

The Personal Properties and Securities Act (2009) (Cth) (PPSA) is a law about security-interests which applies to all personal-property Australia wide.[1] The PPSA has created a national register over security interest called the Personal Property and Securities Register (PPSR). The PPSR has replaced over 70 national registers which previously dealt with registered security interests over …
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More government control planned for the NSW construction industry

On 30 October 2013 the New South Wales Legislative Assembly passed the first of a number of proposed amendments to the Building and Construction Industry Security of Payment Act 1999 (NSW) (“Security of Payment Act”)  that will change the construction legal landscape in New South Wales for many years to come. All that is required …
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Contracting essentials for lawn mower mechanics – Part 1

A contract is like a lawn mower. Each has about 50 operable parts, some are dangerous, others fuel the engine and others clean up and catch the grass. Welcome to your first lesson on the contracting essentials for lawn mower mechanics. This first article will focus on the terms that are the dangerous parts. These …
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Contracting essentials for lawn mower mechanics – Part 2: Throttle and fuel

Welcome to your second lesson on the contracting essentials for lawn mower mechanics. This second article will discuss the ‘throttle and fuel’ of the contract. These clauses keep the machine running. They outline how money is to flow between Principal and Contractor as well as any other requirements which facilitate the operation of the Contract. …
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Contracting essentials for lawn mower mechanics – Part 3

Welcome to your third lesson on the contracting essentials for lawn mower mechanics. This third article will discuss the ‘cleaning up’ of the contract. These clauses keep the ground tidy and clean up after the operation of a lawn mower. They outline what must be done by both parties prior to the works at the …
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Defects liability – How long am I liable?

Limitations on claims for breach of Statutory Warranties under the Home Building Act Contractors who undertake residential building work now carry the risk of multiple claims for defects for a period of seven years from completion of the works. Recent amendments to the Home Building Act 1989 NSW (“the HBA”) have changed the law on …
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