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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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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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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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 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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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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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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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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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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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 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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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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To be able to access the adjudication process under the various Security of Payment schemes in Australia, claimants are required by legislation to “identify” the construction works in a payment claim for which they seek payment. The word “identify” does not arise frequently in security of payment legislation, but where it does, claimants seeking the …
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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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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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What you need to know? Trustees are commonly used to enter into construction contracts as a risk mitigation tool. When contracting as a trustee one needs to be careful to ensure that the appropriate trustee limitation of liability provisions are included in the construction contract. When contracting with a trustee one needs to be careful …
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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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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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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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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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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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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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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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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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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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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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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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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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In this article, we will: provide a quick refresher on how and when transfer duty and call option assignment duty is assessed under the Duties Act 1997 (NSW) (Duties Act); and provide an update on the proposed changes on transfer duty after announcement of the 2021-2022 State Budget. PART 1 – A SUMMARY ON THE …
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On 22 September 2021, a magnitude 5.9 earthquake struck Victoria. Undoubtedly, this led many construction managers in Melbourne to review their contracts to assess who bears the risk for any damage caused. Ordinarily, Contractors carry the risk for all loss or damage which occurs during the works whilst they are managing the site with the …
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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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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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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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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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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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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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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:
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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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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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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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
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 High Court of Australia (HCA) has determined in the case of WorkPac Pty Ltd v Rossato [2021] HCA 23, that a long-term employee Mr Rossato was a casual employee. The HCA has unanimously found that Mr Rossato was a casual employee, and that casual employees are those with no “firm advance commitment”. The High …
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On 1 July 2021, the following sections of the Act commenced operation: Part 2; Division 1 of Part 3; Parts 5 to 9; and Clauses 2 to 4 of Schedule 1. The commencement of these sections introduces the Act in its full operation, except for the requirements as to specialist work under Division 2 of …
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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 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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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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In a case involving Mondelez (Company), the Fair Work Commission (FWC) has found that an employee who was engaged in eight maximum term contracts over two and half years, was not dismissed by the Company, but rather the employment relationship came to an end as a result of the effluxion of time. The employee was …
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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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Last week, it was decided in the National Cabinet that residential workers in the aged care sector will be mandated to get the COVID-19 vaccine to remain employed. The Federal Government will require that at least the first dose of the COVID-19 vaccine be administered by mid-September. We anticipate that there will be a public …
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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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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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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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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.
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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Recap The Design and Building Practitioners Act 2020 (‘DBP Act’) assented on 10 June 2020 created a statutory duty of care on residential builders to owners of land and each subsequent owner of the land (owners corporations and lot owners) over and above the statutory warranties provided under the Home Building Act 1989 (NSW). From …
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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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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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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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On 1 March 2021, Schedule 2[2] of the Building and Construction Industry Security of Payment Regulation 2020 (NSW) (Regulations) came into force. As a result, owner occupier construction contracts entered into on or after 1 March 2021 are no longer exempt from the application of the Building and Construction Industry Security of Payment Act 1999 …
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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 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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The answer – because the employer “overplayed its hand”. Allan Jones (no, not that one) was issued a JobKeeper enabling direction by his employer, Live Events Australia Pty Ltd (Live Events). Live Events is in the business of broadcasting live events, including sport. Mr Jones is employed on a full-time basis as a broadcast engineer, …
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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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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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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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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 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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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Sunset clauses are common in off the plan contracts or other contracts where the vendor has obligations to satisfy conditions precedent to complete (Contract). Off the plan contract means a contract for the sale of a residential lot (subject lot) that has not been created at the time that the contract is entered into. A …
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Can a respondent not pay an adjudication determination because the claimant is acting as if it were broke? An adjudication has been made against a respondent. The builder or subcontractor (the claimant) is on the brink – trading at a loss, firing staff, changing corporate structure. The respondent knows they are close to insolvency, and …
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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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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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In All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd [2017] NSWCA 289, the Court of Appeal held that a payment claim served before a reference date will be invalid under the Act despite a provision in a contract deeming that the service of the payment claim is taken to have been made …
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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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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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The Federal Government has reduced the threshold at which a vendor is required to provide a Foreign Resident Capital Gains Clearance Certificate (FRCGCC) to purchasers of real property. The new rules apply to all contracts for sale with a market value over $750,000 (previously $2,000,000) entered into from 1 July 2017. If an Australian resident …
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The Electronic Transactions Legislation Amendment (Government Transactions) Act 2017 (Act) passed into law in the last week of June 2017. It amended a number of Acts including the Strata Management Scheme Act 2015 NSW delaying the commencement of the new defects bond scheme until January 2018. Email Allowed Whilst it did not create much fanfare the …
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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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In February of this year, the Society of Construction Law (“SOCL”) published the 2nd Edition of the Delay and Disruption Protocol (“the Protocol”) – the first update to the Protocol since the release of the first edition in 2002. The Protocol is prepared for the UK market, but has found application around the world, …
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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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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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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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In The Trustee for the Whitby Trust v Commissioner of taxation [2017] AATA 343 (20 March 2017), the AAT has held that an option fee paid by a developer do not form part of the consideration for acquiring the property for the purposes of calculating GST under the margin scheme in accordance with Div …
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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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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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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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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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Legal Issue A recent decision in the Victorian Supreme Court examined whether the Plaintiffs, Tan and Lo, validly exercised their cooling off rights to terminate a contract for sale in circumstances where the notice was served on the vendor’s selling agent. Practical Effect of Decision The case illustrates the importance of knowing, prior to entering …
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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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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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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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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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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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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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Part 10 of the Strata Schemes Development Act 2015 (Act) prescribes a process for strata renewal. Part 10 commenced on 30 November 2016. The Part 10 process enables the owners in a strata scheme to seek a Court order for one of 2 options: the “collective sale” of all apartments in that strata scheme for …
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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 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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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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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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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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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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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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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 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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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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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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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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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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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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