Minimum Employment Terms and Conditions in Australia
Employers who wish to sponsor skilled employees from overseas are, in summary, required under the subclass 457 scheme to provide terms and conditions which are at least equivalent to those which an Australian citizen or permanent resident would achieve performing the same work at the same location. This is an ongoing requirement not least because it is a 457 sponsorship condition, and severe sanctions can result in non-compliance. Its primary purpose is to prevent the undercutting of the local Australian labour market, protect overseas employees from exploitation, and maintain integrity in the scheme. In Australia, the employment relationship is governed or affected by a number of different parameters, all of which are variable depending upon the circumstances: Applicable Federal, State and/or Territory legislation: These include the Fair Work Act 2009 (Cth). The Fair Work Act establishes the National Employment Standards. Industrial instruments: There are various awards and statutory agreements / enterprise agreements which may impact upon the minimum terms and conditions with which an employee must be provided (for example by amending or adding to the National Employment Standards, and setting minimum wages for particular occupations). Contract of employment: This is agreed between the employer and the employee. Terms are both express and implied into the contract: Express terms: These are usually the written terms and conditions of the employment contract but may include terms and conditions which have been agreed verbally and also provisions of internal employment policies and any other terms (if they have been incorporated into the contract by reference for example). Implied terms: Terms can be implied into the employment relationship through custom, and the common law also implies terms into every employment relationship. Importantly, the contractual terms cannot override or detract from legislation and so the contract needs to provide terms and conditions which are at least equivalent to the terms and conditions required by applicable law (referred to under points 1 and 2 above). It is therefore important to be mindful of the tasks and functions of the occupation in question (and any changes from time to time which may alter the nature of the role), and the minimum requirements which are prescribed by the law for that particular occupation. In addition, the obligation upon 457 visa employer sponsors is broader in the sense that market salary rate conditions (not merely the requirement to pay a minimum wage) are also relevant, and market salary rates may fluctuate from time to time.
Legal Considerations When Choosing A Business Name in Australia
When it comes to choosing the name of your business, there are various key legal factors that you should consider. Existing registered and unregistered rights may already exist in similar names. The mere registration of a business or company name with the Australian Securities & Investments Commission (ASIC) does not avoid any of the following issues, and you should consider these key points before registration of any business, company, or domain name: 1. Existing registered trade marks under the Trade Marks Act 1995 (Cth) A trade mark is, in summary, a sign (e.g. a letter, word, name, number, brand, logo, aspect of packaging, shape, colour, sound or scent) that is used to distinguish the goods or services of a trader from those of others. Words that describe the goods or services (e.g. lawyers in relation to a law firm) are difficult to protect because they are words which various traders in the ordinary course of their business would use in connection with their goods or services. As such they are not therefore distinctive. Make sure your name / sign is distinctive if you want more protection. Trade marks can be registered with the Australian Trade Marks Office (ATMO). Registration of the trade mark gives the trader a monopoly right over that trade mark in relation to the goods or services, or similar goods or services, in respect of which the trade mark is registered. Importantly, this protection extends to trade marks which are substantially identical or deceptively similar to the registered trade mark. Therefore, if your chosen name / logo / sign is substantially identical or deceptively similar to an existing trade mark, and you use your sign in relation to the same or similar goods or services, you run the risk of infringement and a claim for damages (unless a defence applies). A search of the Australian Trade Marks Office Online Search System should be conducted by a professional. 2. Passing off In addition, even if a trade mark has not been registered with the ATMO, business reputation is protected under the common law tort of passing off. Passing off involves the misappropriation by deception of a trader’s reputation and goodwill. Any deceptive conduct (for example a representation or name that falsely suggests some connection with another person’s product or business) where there is at least the threat of damage to a trader’s reputation and goodwill could constitute passing off. A trader’s reputation may attach to various means by which the public recognise their product or services from those of others such as their name, get-up / packaging, colour schemes, etc. You may be required to account for your profits in an action for passing off. Again, words that describe the product or service or other indicia such as packaging which are purely functional are much harder to protect. You should conduct a search of the marketplace to ascertain whether any existing businesses have reputation in your proposed name or sign. 3. Misleading and deceptive conduct under the Australian Consumer Law The Australian Consumer Law is found in Schedule 2 of the Competition and Consumer Act 2010 (Cth). Most relevantly, a person (which includes a corporation) must not engage in conduct that is misleading or deceptive or which is likely to mislead or deceive. Once you have decided upon a name that is available and which will not offend any of the above principles, you should register it as a trade mark with the ATMO in respect of your goods and services and also with ASIC without delay.
How to Manage an Employee’s Performance & Associated Disciplinary Action
1 ISSUE You have an employee who is under-performing in their work or behaviour and you wish to manage their performance and monitor it moving forwards. You may consider that a failure to improve in accordance with set guidelines should result in some form of disciplinary action[1]. In doing so it is important to consider various factors. This article does not cover situations where immediate dismissal as a result of serious / gross misconduct is appropriate. 2 CONSIDERATIONS 2.1 The terms of the employment contract and any relevant industrial award You need to consider the terms of the relevant employment contract and any other relevant provisions which may apply as a result of an applicable award. These may dictate part of the process which must be undertaken and/or the available disciplinary actions the breach of which may result in an unfair dismissal claim. 2.2 Policy and procedure for dismissal & adherence to policy Ensure that you have in place a policy which covers performance management procedures and adhere to them. Contact us for assistance in this regard. 2.3 Unfair dismissal – Part 3-2 of the Fair Work Act 2009 (Cth) (Act) Protected employees: National system employees are protected against “unfair” dismissal if they have completed at least 6 months of employment and a modern award or enterprise agreement applies to them. Alternatively if they have worked for more than 6 months for the employer and their income is less than the high income threshold then they will also be protected[2]. Unfairness: A person has been unfairly dismissed if: the person has been dismissed[3]; the dismissal was harsh, unjust, or unreasonable[4]; the dismissal was not consistent with the Small Business Fair Dismissal Code; and the dismissal was not a case of genuine redundancy[5]. Harsh, unjust or unreasonable: The Fair Work Commission can take into account any matter that it considers relevant but “must” take into account the following in deciding whether or not the dismissal was harsh, unjust, or unreasonable: (a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); (b) whether the person was notified of that reason; (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; (e) if the dismissal related to unsatisfactory performance by the person, whether the person had been warned about that unsatisfactory performance before the dismissal; (f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal. Therefore, be upfront (don’t ambush), reasonable, clear, give warning(s), and allow the employee to have a support person present during discussion(s). Listen to the employee before making a decision. Small businesses & unfair dismissal: Importantly, employers who employ fewer than 15 employees are covered by unique provisions contained in the Small Business Fair Dismissal Code. Furthermore, employees who have worked for less than 12 months for small business employers are not eligible to make a claim for unfair dismissal. Otherwise, small business dismissals which comply with the Small Business Fair Dismissal Code are deemed to be fair. 2.4 General protections provisions – Part 3-1 of the Act – adverse action and workplace rights Briefly, a person must not take adverse action against another person in relation to the exercise of a workplace right by that other person. The term “workplace right” is very broad in scope and includes, without limitation any process under a workplace law e.g. cashing out leave, making flexibility arrangements, taking parental leave, taking industrial action, temporary absences etc etc. The term “adverse action” is also similarly broad, and includes, without limitation, dismissal or the alteration of the employees position to the employees prejudice. Employees are also protected from coercion and undue influence as well as misrepresentation about workplace rights. So, seek advice, and make sure your reasons for disciplining are only performance related. 2.5 Bullying – Part 6-4B of the Act Behaving unreasonably towards the employee where that behaviour creates a risk to health and safety could also constitute bullying. However, reasonable management action carried out in a reasonable manner does not constitute bullying. 2.6 Discrimination legislation – protected attributes Ensure that you do not implement your performance management program in an inappropriate manner where the employee has a protected attribute[6] to minimise the risk of falling foul of anti-discrimination legislation. 2.7 Proportionality of the disciplinary action Any performance management program should be closely monitored. The disciplinary action taken should be proportionate to the conduct of the employee. Record and confirm everything in writing. ……………………………… [1] For example in the form of a warning or dismissal [2] s.382 of the Act. See also ss383 and 384. [3] Either terminated by the employer or because the employee was forced to resign because of the employers conduct. See s.386 of the Act for further details. [4] See s.387 of the Act [5] See s.389 of the Act [6] Race, colour, sex, sexual preference, age, physicial or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion or national extraction or social origin.
Online copyright infringement of movies and website blocking by CSPs: Roadshow Films Pty Ltd v Telstra Corporation Ltd [2016] FCA 1503 (15 December 2016)
The Federal Court of Australia has made the first reported orders under the new s.115A of the Copyright Act 1958 (Cth) by requiring numerous Australian carriage service providers to disable access[1], for up to 3 years[2], to various websites whose “primary purpose” is the infringement or facilitation of infringement of copyright. The Copyright Amendment (Online Infringement) Act 2015 (Cth) amended the Copyright Act 1958 (Cth) by introducing s.115A. s.115A provides that the Federal Court of Australia may, on application by the owner of a copyright, grant an injunction to require a carriage service provider to take reasonable steps to disable access to an online location if: a carriage service provider provides access to an online location outside Australia; the online location infringes, or facilitates the infringement of, the copyright; and the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia). The purpose of the scheme under the new s.115A is to allow a specific and targeted remedy to prevent online locations which flagrantly disregard the rights of copyright owners from facilitating access to infringing copyright content. Knowledge or intention on the part of the carriage service provider is not required; the specific and targeted remedy exists simply to bring an end to access to such online locations without the need for lengthy factual enquiries associated with copyright infringement actions of the kind seen in Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16. There is a high threshold test to be satisfied, namely, that the “primary purpose” of the online location must be to infringe. The case[3] provides guidance on the evidence that will satisfy a Court in this regard. The time at which the Court must be satisfied of the elements in s.115A is the time of granting of the injunction. The making of the application for an injunction must be notified to both the carriage service provider and the person operating the alleged infringing online location (unless their identity cannot be ascertained despite reasonable efforts). The rights owners were required to pay the arguably nominal compliance costs of the carriage service providers in complying with the orders (calculated as a sum per domain name), in addition to the carriage service providers’ legal costs. The carriage service providers were not awarded / not all of them sought their costs of setting up and configuring the necessary systems (i.e. website blocking systems) in order to comply with s.115A. s.115A (9) provides that the carriage service provider is not liable for any costs in relation to the proceedings unless the provider enters an appearance and takes part in the proceedings. It would seem that such costs should be quantifiable by reference to “the proceedings”, if considered commercial to spend time undertaking that exercise. ………………………… [1] By implementing DNS blocking, IP address blocking, URL blocking or any other alternative technical means of disabling access to the online locations (outside Australia) of various websites whose primary purpose is the infringement or facilitation of the infringement of copyright [2] Capable of extension for another 3 years in the case of continued infringement [3] As does the revised explanatory memorandum to the Copyright Amendment (Online Infringement) Bill 2015
Unfair Contract Term Protections for Small Businesses
BACKGROUND Following public consultation processes, new laws[1] came into force on 12 November 2016 which extended existing consumer protection laws against unfair contract terms to “small business contracts” (e.g. business to business contracts). Under these laws, small businesses can also have an “unfair” term in a “standard form contract” declared as void in specified circumstances. In doing so they would not have to comply with the term. Findings identified in the Explanatory Memorandum to the Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Bill 2015 suggest that, like consumers, small businesses are vulnerable to the inclusion of unfair terms in standard form contracts as they often lack: the resources to identify unfair terms, appreciate their significance and determine whether they can manage the associated risks; the resources to engage in negotiations over the terms of a contract; the bargaining power to successfully negotiate the terms of a contract; and/or the resources and bargaining power to resist the enforcement of unfair contract terms. The stated objective of this reform[2] is to promote fairness in contractual dealings with small businesses with regard to standard form contracts. This will reduce small business detriment and have positive impacts on the broader economy by increasing small business certainty and confidence, and providing for a more efficient allocation of risk. WHEN DOES PROTECTION TO CONSUMERS / SMALL BUSINESSES APPLY The unfair contract terms protection provisions are contained in ss23 – 28 of Schedule 2 to the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law). Section 23 provides that a term of a “consumer contract” and “small business contract” is void if the term is “unfair” and the contract is a “standard form contract”. We do not examine consumer contracts which were protected prior to the amendments but examine the concepts of “small business contracts”, “standard form contracts” and when terms will be considered to be “unfair”. Small business contract In summary, in order for the contract to be a small business contract, each of the following must apply: The contract must be for the supply of goods or services or a sale or grant of an interest in land; At least one of the parties to the contract is a business that employs less than 20 people[3]; and The upfront price[4] payable under the contract is $300,000 or less, or the contract is for a duration of more than 12 months and the upfront price is $1,000,000 or less. Standard form contracts Standard form contracts are everywhere for example IT services contracts, advertising services contracts, mobile phone contracts, licences of office space, gym memberships etc. They are an efficient and effective way for businesses to contract. The Court will take into account any facts that it considers to be relevant however at the time of writing it “must” take into account the following in determining whether a contract is a standard form contract: whether one of the parties has all or most of the bargaining power relating to the transaction; whether the contract was prepared by one party before any discussion relating to the transaction occurred between the parties; whether another party was, in effect, required either to accept or reject the terms of the contract (other than certain excluded terms discussed below)in the form in which they were presented; whether another party was given an effective opportunity to negotiate the terms (other than certain excluded terms discussed below); and whether the terms of the contract (other than certain excluded terms discussed below) take into account the specific characteristics of another party or the particular transaction. Excluded terms: the protection does not extend to terms to the extent that they define the main subject matter of the contract, set the upfront price payable under the contract, or are terms required by law. Excluded contracts: the protection does not extend to contracts which are individually negotiated, or to certain types of contracts such as contracts of marine salvage or towage, a charterparty of a ship, and contracts for the carriage of goods by ship, constitutions of companies or managed investment schemes or other kinds of bodies. After 12 November 2016: The contract needs to have been entered into, renewed or rolled over after 12 November 2016. The law also applies to amendments to contracts after 12 November 2016 but not to the terms which have not been amended. Unfair terms There is a three limb test to unfairness. A term will be “unfair” if: it would cause a significant imbalance to the parties’ rights and obligations arising under the contract; it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by them; and it would cause detriment to a party if it were to be applied or relied on. The Court “must” take into account the extent to which the term was transparent[5] and the contract as a whole. Make sure your print is not too fine! Some prescribed examples of the types of terms which may be unfair are as follows: a term that permits, or has the effect of permitting, one party (but not another party) to avoid or limit performance of the contract; a term that permits, or has the effect of permitting, one party (but not another party) to terminate the contract; a term that penalises, or has the effect of penalising, one party (but not another party) for a breach or termination of the contract; a term that permits, or has the effect of permitting, one party (but not another party) to vary the terms of the contract; a term that permits, or has the effect of permitting, one party (but not another party) to renew or not renew the contract; a term that permits, or has the effect of permitting, one party to vary the upfront price payable under the contract without the right of another party to terminate the contract; a term that permits, or has the effect of permitting, one party unilaterally to vary the characteristics of
Guide to Statutory Demands – What to Do When Served
Intro If a company owes one or more debts which are due and payable to a creditor and which remain outstanding, it is possible that the creditor may decide to serve a statutory demand on the debtor company. The statutory demand may require the debtor company to either pay the debt(s) in full or provide security for the debt(s) to the creditor’s reasonable satisfaction within 21 days after the demand is served on the company[1]. Requirements for a valid demand In summary the requirements for a valid statutory demand on a company are as follows: If the demand relates to a single debt the demand must specify the debt and its amount. If the demand relates to 2 or more debts then the demand must specify the total; The total debt(s) owed must be more than $2,000; The demand must require payment of the debt or the debtor company to secure or compound the debt to the creditors reasonable satisfaction within 21 days of service of the demand on the debtor company; The demand must be in writing, in the prescribed form, and signed by or on behalf of the creditor; and If there is no judgement in respect of the debt then the demand must be accompanied by an affidavit which clearly verifies that the debt is due and payable in full and the affidavit must comply with the rules. Bear in mind the available grounds to have the demand set aside, and the likely costs outcome if it is set aside (discussed below). All of the circumstances should be considered before deciding to proceed with service of a demand. Time is of the essence If you are on the receiving end of a statutory demand, legal advice should immediately be sought. If the debtor company does not take any action (i.e. comply with the demand, ensure that the demand is no longer in effect, or apply to the relevant Court) within 21 days of service of the demand, and the demand is still in effect, the creditor[2] can immediately apply for the debtor company to be wound up and the Court “must” presume that the debtor company is insolvent[3]. Extensions of time are not possible. Aside from the very harsh effects of winding up proceedings on the debtor company, the onus will be on the debtor company to then prove that it is in fact solvent. In such circumstances the debtor company will not, without the leave of the Court[4], be able to oppose the application on a ground that it might otherwise be able to do so in an application to set aside the statutory demand. Application to set aside a statutory demand If however an application is made to set aside the statutory demand within 21 days of service, supported by an affidavit, and the application to set aside the statutory demand along with the supporting affidavit is served on the person who served the demand on the debtor company within the 21 day period[5], then the application to set aside the demand would be validly issued[6]. Grounds for setting aside the statutory demand The Court must be satisfied either: that there is a “genuine dispute” between the company and the creditor about the existence or amount of the debt; that the debtor company has an offsetting claim[7]; that there is a defect in the demand “and substantial injustice will be caused unless the demand is set aside”; or that some other reason exists why the demand should be set aside[8]. If the demand is set aside then there will be no automatic presumption of insolvency and it is likely that the creditor would have to pay the debtors costs of the application to set aside[9] unless the debtor has behaved unreasonably. ……………………… [1] S.459E of the Corporations Act 2001 (Cth) (Corps Act) [2] being one of the class of persons under s.459P of the Corps Act [3] s.459C (2) (a) of the Corps Act [4] the Court can only grant leave if it is satisfied that the ground is “material” to proving that the company is solvent under s.459S of the Corps Act. [5] Sufficient time must be allowed for service in compliance with s.109X of the Corps Act. Any person receiving a statutory demand must take action immediately. [6] s.459G of the Corps Act [7] s.459H of the Corps Act [8] s.459J of the Corps Act [9] s.459N of the Corps Act