• Enterprise Legal | Changes to the Fair Work Act Requiring Casual Conversion

    Changes made to the Fair Work Act 2009 (Cth) earlier this year have introduced provisions to provide a pathway to permanent employment for casual employees.

    Employers now have an obligation to make an offer to convert a casual employee to either full-time or part-time employment (based on their regular work patterns) in circumstances where the employee:

    1. has been employed by the employer for 12 months; and
    1. during the last six months, has worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time or part time employee (based on their regular work patterns).

    While the obligation does exist, an employer is not required to make an offer where there may be “reasonable business grounds” to not do so. Businesses may rely on reasonable business grounds including:

    1. the employee’s position will cease to exist in the period of 12 months after the time of deciding not to make the offer;
    1. the hours of work which the employee is required to perform will be significantly reduced in that period;
    1. there will be a significant change in either or both of the following in that period:
      1. the days on which the employee’s hours of work are required to be performed;
      2. the times at which the employee’s hours of work are required to be performed;

    which cannot be accommodated within the days or times the employee is available to work during that period;

    1. making the offer would not comply with a recruitment or selection process required by or under a law of the Commonwealth or a State or a Territory.

    Employers will need to provide casual employees with notice of their decision to not make an offer within 21 days following the end of the employees first 12 months of employment. Any such notice should indicate that an offer will not be made and provide detailed reasons as to why.

     

    What Does This Mean For Small Businesses?

    While small businesses, being those employers who employ less than 15 employees, are not required to offer conversion to casual employees, casual employees are entitled to request casual conversion if they satisfy the grounds to do so.

     

    When Does This Come Into Action?

    A six-month transition period is in place, so employers must assess whether casual employees employed before 27 March 2021 are eligible to convert to permanent employment by 27 September 2021.

     

    If you would like assistance with these changes to casual employees, start a conversation with our dedicated Workplace Relations team:

    ☎️ (07) 4646 2621

    ✉️ Submit an Online Request

  • Enterprise Legal | Debt Recovery: Is It Time to Lawyer Up?

    Maintaining cash-flow in your business is essential to staying in the black and remaining a viable, vibrant business and nothing is more frustrating than having all your hard work in your business compromised by debtors not paying their Invoices as and when due.

    Enterprise Legal has a number of clients who, despite best efforts, have found it difficult to manage their debtor ledger effectively and consequently found themselves in the position of having to take steps to recover debts due and owing to them.

    Typically, by the time clients come to see us they are frustrated by the debt recovery process, they have several debts owing to them and in most instances significant time has passed since the provision of the services or goods, and the unpaid Invoice(s).

    Whilst ‘better late than never’ rings some truth, we always provide the following advice to our clients who find themselves in the position of having to recover debts due and owing:

    1. Prevention is better than cure, so make sure your business has a credit health check and appropriate debt recovery policy and procedure in place from the outset, to optimize the chances of being paid on-time and in-full. Sometimes, spending time and money up-front saves you significantly long-term.

    2. Don’t delay! The moment a debt is overdue and the debtor appears non-responsive to ‘chasers’ by your business, come and see the team at Enterprise Legal. The longer a debt is outstanding, the more confident the debtor gets that they can get away with non-payment. Debtors will always have an array of reasons why they can’t pay, it is about knowing the law and how to have the conversation with the debtor, to ensure payment is made swiftly.

    3. Sometimes it is as simple as sending a letter of demand on a legal letterhead to recoup payment in full! At Enterprise Legal, we have a 70% success rate at the letter of demand stage, and for a fixed-fee of $330 (which includes up to 3 chaser telephone calls), we often save our clients from headaches and compromised cash-flow down the line.

    4. On the occasions where the letter of demand route was not successful, Enterprise Legal has an array of cost-effective strategies and methods to recover debts for our clients, and by combining our knowledge of the law, our pragmatic thinking and our experience in dealing with debtors, we often assist our clients to recover their debts in a cost-effective manner.

     

    If you or your business would like a credit health check, a debt recovery policy or assistance with recovering debts, contact Enterprise Legal’s Disputes team today:

    ☎️ (07) 4646 2621

    ✉️ Submit an Online Request

  • A childcare worker in Gladstone was dismissed from her role at Goodstart Early Learning (Goodstart) following her repeated refusal to get the flu vaccine, with the Fair Work Commission finding in favour of her former employer in the case of Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156.

     

    Background:

    Goodstart had a workplace policy requiring employees to be vaccinated against influenza, stating that vaccines were “mandatory” for employees. Despite this policy, the policy contained an exemption for employees who had medical conditions preventing the administration of the vaccine. Ms Barber repeatedly refused to comply with the policy on the grounds that she suffered from coeliac disease, had suffered an adverse reaction to a previous flu vaccine, and had a “sensitive immune system”.

    In attempting to verify Ms Barber’s claims, Goodstart offered to pay for various medical appointments, although following this process, it remained unclear whether Ms Barber was precluded from obtaining the vaccine. In fact, the Commission found that Ms Barber submitted two medical certificates from different medical practitioners, neither providing a “substantive” medical reason justifying her refusal to comply with the policy.

    Furthermore, it was noted that Ms Barber was unable to find a doctor willing to complete Goodstart’s pro forma medical certificate which required the doctor to mark a box if they believed her medical condition would place her at an increased risk of an adverse reaction to the flu vaccination. Given that there was an absence of medical evidence to support her concerns, it was held that her refusal to obtain vaccination was more akin to a “conscientious objection” that did not excuse her from the obligation to comply with the policy.

     

    Is a Mandatory Vaccination Policy Lawful and Reasonable?

    In her continued refusal to comply with the policy, Ms Barber failed to comply with a lawful and reasonable direction to obtain vaccination. The Commission considered that Goodstart had legal obligations under workplace health and safety legislation to ensure the health and safety of the children in it’s care in addition to employees, with mandatory vaccinations being the most effective way to reduce the risk of transmission of influenza throughout the facility. The Commission also considered that the policy provided employees to be exempt from the vaccination on the provision of sufficient medical evidence, which Ms Barber was unable to do.

    The Commission were of the view that Ms Barber worked in a highly regulated industry and was in direct contact with children who did not have fully developed immune systems and were not old enough to be vaccinated. It was relevant to the Commission that the early childhood education industry has a long-standing history of requiring staff to be vaccinated against certain diseases and viruses, and that the vaccination policy implemented by Goodstart was not inconsistent with industry norms.

    In determining that Ms Barber’s dismissal was fair, the Commission drew particular attention to the careful process followed by Goodstart in that the process took a number of months and provided the employee with multiple opportunities to provide additional information and to respond to their concerns and requests.

     

    Can Other Businesses Introduce a Mandatory Vaccination Policy?

    The Commission’s decision confirmed that lawfulness and reasonableness of a direction for an employee to be vaccinated must be determined on the consideration of a number of factors, including:

    1. the type of vaccine that is involved;
    2. the type of workplace the employee works in;
    3. the nature of the industry; and
    4. the individual themselves, including whether any medical exemptions may be applicable.

    While such a direction was deemed to be reasonable in the context of early childhood education where hands-on care is provided to vulnerable members of the community, it is unlikely that the decision could be applied more broadly to other industries or workplaces.

     

    If you’re wanting to know whether such a policy would be applicable to your business or if you are considering enforcing or implementing a vaccination in your workplace, contact our dedicated Workplace Relations team today:

    Amie Mish-Wills
    Principal Legal Advisor – Workplace Relations

    Anna Fanelli
    Legal Advisor – Workplace Relations

    ☎️ |  (07) 4646 2621
    ✉️ | Submit an Online Request

  • The High Court has overturned the Federal Court decisions in the WorkPac v Rossato(see our previous article: 'Proposed Changes to Casual Employment') that found that employees who worked regular and predictable shifts over an extended period were not in fact casual employees.

     

    To refresh your memory on the previous WorkPac decisions, the Federal Court had determined that Mr Rossato had been given regular and ongoing shifts and should have been classified as a permanent worker, not casual, and awarded the associated entitlements including annual leave. This decision caused panic for businesses with fears that it would open the floodgates for claims of unpaid leave, despite casual workers already being paid 25% loading to compensate for entitlements. 

    This decision provides clarity to employers who can now be satisfied they have certainty when it comes to their casual employees. The High Court expressly stated that casual employment can be long-term with a casual employee working regular and systematic hours.

     

    It was found by the High Court that for an employee to be “other than” casual, there must exist a firm advance commitment to continuing work unqualified by indicia of irregularity, such as uncertainty, discontinuity, intermittency and unpredictability. A firm advance commitment is an enforceable promise, not an ‘expectation’ of ongoing work. Unlike the Federal Court, the High Court took the view that, where an employee’s contract is wholly in writing the terms of the written agreement are construed to determine whether a firm advance commitment exists, rather than looking to post-contractual conduct.

     

    The High Court specifically considered the following aspects of Mr Rossato’s employment agreement provided that:

    1. his hours of work “may vary” and were a “guide only”;
    2. that WorkPac was not required to offer him any assignment, and assignments could be accepted or rejected;
    3. either party could terminate on an hours’ notice;
    4. in some of his contracts, Mr Rossato had the right to refuse or cancel shifts;
    5. the payment of casual loading;
    6. that the employment was to be on a casual basis; and
    7. that any offered assignment could be varied on one hour’s notice.

    While Mr Rossato did receive his rosters far in advance, the High Court formed the view that this was of limited significance and did not provide a commitment to an ongoing employment relationship. In fact, based on the Agreement, it was clear that WorkPac had avoided making a firm advance commitment to ongoing employment.

     

    What Does This Mean For Employers?

    While this decision provides some certainty for employers, it is as important as ever for employers to review any employment agreements to ensure that employment agreements reflect a true casual engagement and that the terms are consistent with the recently introduced definition of “casual employee” in the Fair Work Act 2009 (Cth).

     

    If you’re wanting to have a chat about casual employees and whether your current agreements are up to scratch, contact our dedicated Workplace Relations team today:

    ☎️ | (07) 4646 2621
    ✉️ | Submit an Online Request

  • Do I Need To Pay Stamp Duty When Buying A Home? | Enterprise Legal

    Beware of Stamp Duty!

     

    Purchasing a property is usually a huge milestone in most people’s lives. Whether you are purchasing your first home, upgrading to a larger property or purchasing an investment property, buying a house is an extremely exciting time. However, during this time, it is important to realise that the purchase price is not going to be the only cost associated with securing your new property!

    When budgeting for your property purchase, it is important to make sure you consider all financial aspects of the transaction. One of the key costs that is often overlooked by prospective buyers is Transfer Duty, which is more commonly known as ‘Stamp Duty’ (even though it hasn’t officially been called this for many years!).

     

    What is Stamp Duty?

    Stamp Duty is a tax owing to the State Government’s Office of State Revenue on most ‘dutiable transactions’. A dutiable transaction includes purchasing a property or transferring an interest in a property, either from one person to another or into a separate entity (eg. transferring from a person to a Trust or Company). Stamp Duty is calculated based on the higher of the purchase price payable or the value of the property in the transaction, meaning that the amount payable can vary significantly. It also means that in many cases where you are receiving an interest in a property for free or at a discounted price, stamp duty will still be payable on the total value of the property.

     

    Stamp Duty Concessions and Exemptions

    You may be eligible for certain stamp duty concessions or exemptions, depending on your situation and whether you meet the specific criteria applicable. For example, first home buyers who are purchasing a property for under $500,000.00 may be eligible for the first home concession. This concession can only be accessed by a person that has never owned property anywhere in the world, who is purchasing the property as an individual (eg. not using a Trust or company).

    Buyers who have owned a property previously but are purchasing the property in question as their primary residence, may be eligible for the home concession.

    If you are purchasing a property in a Company or Trust, you will not receive the first home or home concession despite you living in the property and you will need to pay stamp duty at the highest rate.

     

    When Else is Stamp Duty Payable?

    Whilst purchasing a property is the most common scenario in which the obligation to pay stamp duty will arise, there are several other situations in which it may need to be paid. Check out our EL's recent video, 'Stamp Duty Explained', for more details regarding some of the other common scenarios in which stamp duty will be payable.

     

    Stamp Duty Top Tips

    When you are thinking of purchasing your next home, don’t forget to consider how much Stamp Duty you will be payable in addition to the purchase price, how you are going to fund the payment of stamp duty (eg. if you are getting finance, will you need to add it to your loan) and what Concessions or Exemptions you may be able to apply for.

     

    If you would like come clarification on what Stamp Duty you will be paying on the purchase of your next property, contact EL's Property Conveyancing team today:

     

    ☎️ | (07) 4646 2621
    ✉️ | 
    🌐 | Property Conveyancing Services

  • Upcoming Award Changes - Manufacturing, Hospitality, General Retail, Education Services, Fire Fighting and Pastoral Awards to Change on 27 September 2021

    Following on from the successful passing of the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth), the Fair Work Commission (the Commission) has commenced reviewing and amending current modern awards to ensure they align with the new definition of casual employees and appropriately include mechanisms for casual conversion.

     

    Starting with stage 1 awards, the Commission has confirmed that the following awards will be amended on 27 September 2021:

    • General Retail Industry Award 2020
    • Pastoral Award 2020, and
    • Manufacturing and Associated Industries and Occupations Award 2020
    • Hospitality Industry (General) Award 2020
    • Fire Fighting Industry Award 2020
    • Educational Services (Teachers) Award 2020.

     

    The Commission has highlighted the importance of ensuring existing awards are appropriately amended to remove outdated terms relating to causal employment as historical definitions including “engaged as a casual”, “paid by the hour” and “day to Day” could cause confusion and give rise to inconsistencies and uncertainty because they are inconsistent with the new definition of casual employee in s 15A of the FW Act.

     

    This is only the beginning of the Commission’s review and there will no doubt be further amendments announced as the work progresses.
    If you would like to know more about the changes to the modern awards, the Fair Work Act 2009 (Cth) or the definition of a casual employee,  reach out to our dedicated Workplace Relations team today:

    ☎️ | (07) 4646 2621
    ✉️ | Submit an Online Request

  • Does My Business Need Terms and Conditions? | Enterprise Legal

    Terms and Conditions are an excellent ‘starter’ document which every business should invest in. If you’re starting a new business, it should be the first business document you have in place. If you’ve been in business for a while and have been getting by without a set of Terms and Conditions, you should absolutely still consider them as they become particularly important as your business grows.

     

    A well-drafted set of Terms and Conditions will not only protect your business in the event a customer/client makes a claim for defective products or services, it will also clearly deal with important business policies such as refunds, payment timing and methods, insurance and cancellations.

     

    Of course, because all businesses are run differently, it follows all Terms and Conditions should be different too. Your specific business methods and procedures should be taken into account in preparing a quality set of Terms and Conditions. For example, if a business requires a deposit to be paid, their Terms should sufficiently state in what circumstances (if any) the deposit would be refunded or otherwise.

     

    Whether you’re starting a new business, have been operating for a while without any Terms, or would like a second opinion on your current Terms and Conditions, the expert Business Law Team at Enterprise Legal can help. At Enterprise Legal, we take the time to learn about your business before preparing your Terms and Conditions.

    Contact EL's Business Law Team today or book in your Free Business Health Check!

    ☎️ | (07) 4646 2621
    ✉️ | Submit an Online Request

     

  •  General Retail Industry Award Wage Increased by 2.5% On 1 September 2021 | Enterprise Legal

    As you would have seen in our previous annual wage increase article published in June, the Fair Work Commission announced that it would be rolling out its annual wage increase in stages as a knock on effect of the previous staged increases at the start of the COVID-19 pandemic.

    On 1 September 2021 the minimum wages contained in the General Retail Industry Award increased by 2.5% as part of this staged rollout. Employers in the retail industry should ensure that they appropriately review their staff wages and not delay in actioning this increase.

    The final stage of the increase rollout will take place on 1 November 2021, with the following Awards increasing by 2.5%:

    • Air Pilots Award 2020

    • Aircraft Cabin Crew Award 2020

    • Airline Operations – Ground Staff Award 2020

    • Airport Employees Award 2020

    • Airservices Australia Enterprise Award 2016

    • Alpine Resorts Award 2020

    • Amusement, Events and Recreation Award 2020

    • Dry Cleaning and Laundry Industry Award 2020

    • Fitness Industry Award 2020

    • Hair and Beauty Industry Award 2010

    • Hospitality Industry (General) Award 2020

    • Live Performance Award 2020

    • Mannequins and Models Award 2020

    • Marine Tourism and Charter Vessels Award 2020

    • Nursery Award 2020

    • Racing Clubs Events Award 2020

    • Racing Industry Ground Maintenance Award 2020

    • Registered and Licensed Clubs Award 2020

    • Restaurant Industry Award 2020

    • Sporting Organisations Award 2020

    • Travelling Shows Award 2020

    • Wine Industry Award 2020

     

    To learn more about the wage increase or to receive advice regarding how to best manage award wage increases throughout your business, contact EL's dedicated Workplace Relations team today:

    ☎️ | (07) 4646 2621
    ✉️ | Submit an Online Request 

  • Debt Collection Toolbox: Crack Open a Company With A Creditor’s Statutory Demand

    A Creditor’s Statutory Demand (or commonly referred to as a CSD) is a technical letter of demand. It is issued per section 459E of the Corporations Act 2001 (Cth) against corporate entities where the issuing creditor has good reason to believe that there is no dispute in relation to the debt owed.

    A CSD can be either supported by a Judgment of a court or an Affidavit and the demand must meet the statutory minimum amount of $4,000.00.

     

    How Does a Creditor’s Statutory Demand Work?

    The CSD provides a notice period of 21 days in which the debtor company must act. There are strict rules about service and the calculation from the date on which the CSD is delivered. If no action is taken within those 21 days, a presumption of insolvency automatically arises.

    This acts as a short cut and for a strict period of 3 months can be used by either the issuing creditor or any other creditor who becomes aware of an expired CSD.

     

    What Happens Next?

    A presumption of insolvency means a company is presumed to not be in a position to pay its debt as and when they fall due. This then supports a creditor making an application to the Court to wind the company up and appoint a liquidator.

    A liquidator has extensive powers to enable him/her to realise (recover or sell) the company’s assets and to also ask tricky questions of the directors such as: Where did all the money go?  Monies realised are then disbursed between all known unsecured creditors.

    If a company owes you a debt equal to or greater than $4,000.00, use of a CSD may be suitable. It is not an everyday debt collection tool, but when used properly it can be highly effective.

     

    Has your company been served with a Creditor’s Statutory Demand?
    Find out what you need to urgently do by reading EL's Knowledge Centre article 

    If you need to discuss your company's debt recovery options, get started by making an appointment with EL's Principal Legal Advisor - Disputes, Kirsten Woolston:

    ☎️ | (07) 4646 2621
    ✉️ | Submit an Online Request

  • Oh Look! A Creditor’s Statutory Demand

    If you have received a Creditor’s Statutory demand DO NOT DELAY! It is essential that you act and immediately seek legal advice.

    The 21-day time limit is very strict and time starts ticking from the moment of delivery to your registered office. This may mean that you already do not have the full 21 days and your options decrease in proportion to the amount of time you have left.

     

    1. Be Alert, Not Alarmed

    The first step will be to ascertain WHEN exactly the Creditor’s Statutory Demand was served upon your Company’s registered office. A date stamped on the received envelope can be useful. Otherwise, if it was posted to your street address, please keep the envelope as it may be possible to utilize the Australia Post tracking number to ascertain the delivery date.

     

    2. Does It Really Matter If I Don’t Know The Exact Date?

    It might. The 21-day time frame is strict and cannot be extended. At the expiration of the 21-day time frame a ‘presumption of insolvency’ automatically arises and the presumption exists for 3 months. This presumption can expose your company to an application to the Court for an order that the Company be wound up and a liquidator appointed. Besides losing control over your company and its bank accounts, assets, existing business networks and good will, this can also have adverse consequences on you personally as a director.

     

    3. What Are My Options?

    a) Call your Enterprise Legal advisor as soon as possible. We will ascertain whether:

    i. the Demand is technically compliant with the legislation;
    ii. the Demand was properly served; and
    iii. the debt is disputed.

    b) Depending on those results, most options include:

    i. Pay the demand in full and satisfy the debt;
    ii. Instructing Enterprise Legal to write that the debt is disputed and include available evidence in support, note any technical failings and demand that the Creditor’s Statutory Demand be withdrawn; or
    iii. File and serve a Supreme Court application to have the Creditor’s Statutory Demand set aside.

     

    All 3 of the available options MUST occur within the 21-day period, otherwise your company will be statutorily presumed insolvent. There is an exponential increase in costs to save your company after the 21-day deadline has passed.

    Have you been served with a Creditor's Statutory Demand?
    Front-foot it by making an appointment with EL's Principal Legal Advisor - Disputes, Kirsten Woolston to discuss your options:

    ☎️ | (07) 4646 2621
    ✉️ | Submit an Online Request

  • Residential Conveyancing: Frequently Asked Questions

    When buying or selling your property and going through the conveyancing process, it's not uncommon for both the buyer and the seller to have a lot of questions.

    These can relate to from how the entire process works, to specific questions about the documents you receive from us. Below are just a few of the questions we often get asked at Enterprise Legal and their answers!

     

    Should I Get My Draft Contract Reviewed?

    Yes, it is important for both Buyers and Sellers to get the draft contract reviewed. Small administrative errors such as misspelt names or incorrect property details have the potential to cause delays of Settlement or even financial loss when getting the contract amended. It is also important to be aware of all of your rights and obligations under the contract before signing and to ensure everything that has been agreed between the parties is documented correctly prior to signing.

     

    Why Is There So Much Paperwork?

    Conveyancing in Queensland is guided by a considerable number of State and Federal Legislations as well as specific guidelines which need to be followed. Due to this it is critical that we provide you with as much information as possible outlining your rights and obligations under the contract and equally obtaining as much detail of yourselves and the property to ensure we can meet all of the requirements. It is, after all, a substantial investment you are making! Our First Letter Pack contains a questionnaire that we require you to complete which will provide us with all the information you know about the property, so we then have that knowledge and we can tailor our advice to you based on your specific circumstances and the property.

     

    Why Do I Need To Do The Essential Searches? (Buyer)

    The essential searches that we undertake are completed for multiple reasons. Searches like Rates and Water Meter Readings are done to ensure that at Settlement, the correct adjustments can be made to account for the Sellers portion of the levies for the current period and that any unpaid rates with Council have been paid. Searches like QCAT and Court Searches ensure that there are no proceedings against the Sellers and/or there is nothing affecting the seller’s ability to sell the property. It is important to do these searches now to avoid potential consequences later or even after Settlement.

     

    How Do I Get My Keys Following Settlement? 

    Once Settlement has taken place, we will give you a call to confirm the exciting news. We then confirm with the Agent that they are authorised to release the deposit to the seller and to release the keys to the buyer. This is when you arrange with the Agent directly to collect the keys.

    If it is a private sale, keys can be exchanged at settlement with the Solicitors, or between the Buyer and Seller directly.

     

    At Enterprise Legal we aim to make the process of buying or selling your property as streamlined and stress free for you as we can. Most importantly, this is an exciting time for you and we want you to feel that way!

    If you are in the process of purchasing a residential property, EL offers a competetive fixed-fee rate of $1,100 + disbursements, and if you are selling your residential property, our fixed fee is $660 + disbursements.

    Get started today; contact EL’s Property Conveyancing team for a hassle-free property transaction:

    ☎️ | (07) 4646 2621
    ✉️ | Submit an Online Request

  • Is It Time For My Organisation Update Our Constitution/Governing Rules?

    Whether you refer to them as Governing Rules or a Constitution, you should regularly be considering whether an update is needed. However, knowing when to actually ‘pull the trigger’ on conducting a full review and update (or whether you just need a small internal policy change) is the tricky part, and as is the classic legal response, it ‘will depend’ on a number of factors.

    It is absolutely a case-by-case basis, but to help your organisation make that call, we have identified the following key factors to assist:

    1. when the Constitution was last updated;
    2. the structure of your organisation;
    3. the industry in which your organisation operates; and
    4. ‘who’ prepared the latest version of the Constitution.

     

    When Was The Constitution Last Updated?

    There is no hard and fast rule as to timing, and there is no time limit on how long a Constitution will be effective for. But, the law is constantly evolving and changing and any legal document (or any part of it) could quickly become ‘outdated’. A Constitution holds such significant bearing on how an organisation operates, so it is a document any organisation should at least consider updating every couple of years, to ensure it remains relevant in the context of changes in the law. There may also have been significant changes in the structure or policies of the organisation during that time, so there may be some practical changes to implement.

     

    What Is The Structure Of Your Organisation?

    A corporate entity with a Sole Director and Shareholder probably doesn’t need regular updates to their Constitution, but a non-profit who reports to members and stakeholders should frequently ensure the organisation keeps their Constitution up-to-date, as that ensures good governance measures are followed and any legislation changes are accounted for. For example, if there have been major changes to a Board of Directors then there are likely going to be significant changes to the way the organisation operates, so a great starting point would be updating the Constitution to ensure the new Board is on the same page with the direction the organisation is going to move to.

    Specifically for any Incorporated Associations in Queensland, there have been significant changes to the governing legislation (the Incorporated Associations Act 1981 (Qld)) which have been implemented in stages over the last few years. This means that right now is a great time for any Incorporated Association to review their Constitution.

     

    Industry Changes

    Depending on the industry in which your organisation operates, there may be more frequent industry changes which ‘force’ an organisation to reconsider various governance measures. For example, an organisation that operates in the technology space is likely going to have more frequent reason to update their Constitution, than an organisation which operates in the retail or hospitality industry, which are much more ‘established’ industries.

     

    Who Prepared the Current Constitution?

    If your organisation is using a template-style document that has been ‘borrowed’ or is adopting any legislative model rules, they won’t be drafted in a way that accounts for things such as industry changes, specific organisational policies and procedures, nor recent or incoming legal changes. However if you engaged a lawyer to prepare your Constitution and your organisation took the time to carefully consider the impacts it would have on governance, it won’t need to be updated as regularly.

     

    What’s Next?

    Our expert Business & Property Team has extensive experience in corporate governance, structuring matters with a particular expertise in assisting non-profits, charities and sporting organisations.

    If your organisation is considering updating their Constitution, get in touch with our team today and we can help you with updating your Constitution and structuring advice:

    ☎️ | (07) 4646 2621
    ✉️ | Submit an Online Request

  • Director Identification Number Scheme | Enterprise Legal

    What It Is

    On 1 November 2021, the Australian Business Registry Services (ABRS) introduced a requirement for directors of relevant companies to obtain a Director Identification Number (Director ID).

    A Director ID is a unique, fifteen-digit identifier given to a director of a company who has completed an application and verified their identify with the ABRS.

    A director must personally apply for their own Director ID (and it is is free to apply) and will only ever have one Director ID, regardless of how many companies or similar entities they are a director of.

     

    Who It Applies To

    Any person who is currently appointed as a director or alternate director of a company, registered Australian body, registered foreign company or Aboriginal and Torres Strait Islander corporation must apply for a Director ID.

    You can apply for a Director ID even if you are not currently a director, and it will stay with you for life and can be used if you do ever become a director.

     

    When You Need It

    The below table provided by the ABRS succinctly sets out the timeframes for application for a Director ID:

    Director ID Scheme – ABRS Timeframes

     

    How To Apply 

    All Directors must make their own applications – unlike other arrangements for company documents your accountant or registered tax agent is not permitted to do this for you.

    In order to apply for your Director ID, you will need to go to the ABRS Website and follow the process to download the myGovID app (this is different to myGov). The direct link is Apply for your director ID | Australian Business Registry Services (ABRS).

    As part of the application process, you will need to complete a verification of identity, so before you apply you should gather the following information/documents:

    1. your tax file number (TFN);
    2. your residential address as held by the ATO; and
    3. information from two (2) documents to verify your identity – the relevant documents that ABRS suggest are:
      1. bank account details;
      2. an ATO notice of assessment;
      3. superannuation account details;
      4. a dividend statement;
      5. a Centrelink payment summary; or
      6. a PAYG payment summary.

    If you are unable to apply online, you can apply by phone or by paper form, but you will still need the above information / documentation.

     

    How Enterprise Legal Can Help

    Although we are unable to complete the application for you, we are available to assist you with any questions or concerns you have regarding the Director ID, including whether it applies to you, when you need to make an application by, and any questions about how the application works or the best application method for you.

     

    Contact Enterprise Legal's expert Business Law team today:

    ☎️ | (07) 4646 2621
    ✉️ | Submit an Online Request

  • Defamation in a Digital Age | Enterprise Legal

    “Words are free. It’s how you use them that may cost you.”

    The monetization of digital social platforms like Facebook, Twitter, TripAdvisor, True Local or other referrer platforms, means that a few ill-chosen online comments can now have global reach and permanent consequences. 

    Opinions and views (informed or ludicrous) are freely published, and such words can significantly harm a person – be it reputational or financial. This is easiest to see in the growing industry of ‘influencers’, where the individual’s reputation is intricately linked to their financial worth. 

    In Queensland, if you are on the receiving end of false and damaging statements (known as Publications), you may have the right to commence proceedings for defamation even if the publication was physically made outside of Queensland.

     

    Defamation

    Defamation occurs when a false statement is published which harms your reputation. Defamation on social media has become a regular occurrence and a growing problem, resulting in recent legislative changes.

    On 1 July 2021, the Defamation (Model Provisions) and Other Legislative Amendment Act 2021 (Qld) came into force and amended the Defamation Act 2005 (Qld). One of the most significant changes is the introduction of section 10A which requires that an individual has no cause of action for defamation unless the individual proves that the publication has caused, or is likely to cause, serious harm to the reputation of the individual.

    For ‘excluded corporations’, which are businesses with 9 or less staff, it must prove the publication has caused, or is likely to cause, serious harm to the reputation of the business, and serious financial loss.

    The new result is that minor or trivial reputational harm alleged to be caused by a defamatory publication will no longer give rise to a cause of action in defamation.

    It is possible to extend a finding of defamation beyond the original publisher. This means that if another person shares or tags the original post, or adds comments to the post, or even ‘likes’ it or responds with an emoji (such as an angry or laughing face), each action can constitute a separate publication and can see each person liable for defamation.

     

    Time Limits

    In Queensland there is a limitation period of 12 months from the date of publication and any court action must be commenced within those 12 months, otherwise the claim is statute barred.

     

    10 or More Staff

    Businesses with 10 or more staff cannot file a claim for defamation and are required to make a claim for ‘injurious falsehood’.

     

    To be successful in an injurious falsehood claim:

    1. actual measurable financial loss attributable to the publications, is required; and
    2. the motive of malice to harm your businesses’ reputation by the publishing party, must be proved.

     

    Don't Panic

    If you or your business has been the target of defamatory comments, we recommend that you make a printed copy of the publication and make a note of the date and time of the online post. You may also wish to do a search of several platforms to see if the comments were limited to one online platform or several and monitor these for several days.

    You can reach out directly to the host of the platform for assistance, but generally limited assistance will be provided.

    The Defence of Contextual Truth is a complete defence to a claim of defamation, so ensure that you undertake appropriate investigations as to the accuracy or falsity of the Publications as soon as you become aware of the publication. Keep notes regarding your investigative process and conclusions. You may also need to speak with your financial advisor to assess sustained financial losses.

    If the post is not removed within several days, please contact us promptly to obtain legal advice as the sooner you act, the better the available outcomes. 

    If there is sufficient harm warranting progressing the matter, then a Concerns Notice under section 12B of the Act will need to be issued before any court proceedings can commence. This is a new requirement of the recent amendments.

    As at the date of this article, section 35 of the Act limits damages for non-economic loss to a maximum of $250,000.00 which is to be awarded only in the most serious of cases. Exemplary or punitive damages cannot be awarded but any awarded damages are to bear a rational relationship to the harm caused.

     

    Do you need professional advice in relation to defamation? Enterprise Legal can work collaboratively with your financial and marketing advisors to assist to limit the damage caused whilst also ensuring your legal rights and interests are protected. Contact EL's Principal Legal Advisor - Disputes, Kirsten Woolston to discuss your options:

    ☎️ | (07) 4646 2621
    ✉️ | Submit an Online Request

  • 6 Key Changes to the REIQ Residential Contracts | Enterprise Legal

    On 20 January 2022, the Real Estate Institute of Queensland (REIQ) released new versions of the Contract for Houses and Residential Land (17th edition) and the Contract for Residential Lots in a Community Titles Scheme (13th edition).

    The latest editions contain many amendments, but Enterprise Legal considers the following six changes to be the most significant:

     

    Pool Safety

    Both Contracts now allow for a Seller to provide a No Pool Compliance Certificate to the Buyer prior to the Contract being signed and in doing so, there is no other requirement from the Seller in relation to the pool on the land. The Buyer will no longer have a termination right if the pool is not compliant at Settlement.

    If however, the Seller does not disclose that there is not a Pool Compliance Certificate, prior to entering into the Contract, then the Seller will be required to obtain one prior to Settlement, at the Seller’s cost. If they fail to do so, the Buyer will have a right to terminate.

     

    Smoke Alarms

    From 1 January 2022, dwellings and residential units offered for sale must have smoke alarms installed that comply with the current requirements – these requirements have been getting ‘phased in’ for a number of years now. The new versions of the Contracts specify that should a Seller fail to comply with these requirements prior to Settlement, the Buyer will be entitled to a deduction at Settlement equal to 0.15% of the Purchase Price. Sellers and real estate agents should be aware of this and consider whether it is more appropriate to include a Special Condition fixing this deduction at an amount that has bearing on the actual cost of making the residence compliant. 

     

    New Seller Warranty

    The new contract editions require Sellers to warrant, as at the Contract Date, they have not received any communication from an authority that may lead to the issue of a show cause notice, enforcement notice or notice to do work. This requirement is a lot broader than previous, which only required a Seller to make a disclosure if an actual notice had been issued. In reality, authorities such as Councils and service providers usually correspond with owners prior to issuing formal notices and this new requirement put the onus on Sellers to disclose any such correspondence. 

     

    New Termination Rights

    Buyers now have a termination right is there is infrastructure that is unrelated to the delivery of services to the property that passes through the property and such service is not protected by a registered easement, BMS or statutory authority.

    Buyers will also have a termination right if any service to the property passes through another property and such service is not protected by a registered easement, BMS or statutory authority.

    This means that it is very important for Sellers to complete a ‘Dial Before You Dig’ or similar search prior to entering into the Contract, so that they are aware of the location of all services which may need to be disclosed. 

     

    Settlement Extensions

    This new concept allows either party to unilaterally extend Settlement by up to 5 Business Days after the Scheduled Settlement Date specified in the Contract.

    This mechanism only applies to Settlement and does not apply to other conditions like the Finance or Building and Pest Condition. 

     

    Default Place for Settlement

    The standard condition has been amended so that is a Seller does not advise the specific location for Settlement (e.g the specific law firm) at least 2 Business Days before the Settlement Date, Settlement will be required to take place at the Titles Office closest to where the land is located. Again, given the erroneous results this condition could result in, we recommend including a Special Condition to amend it.

     

    Summary

    There has been some significant changes made in the latest REIQ Contract updates for residential dwellings and units and it is important that parties understand what these mean and include appropriate Special Conditions to amend the Special Condition if required. 

    Firm Director, Peta Gray and Lead Conveyancer, Adrianna Williamson recently presented a Webinar regarding these changes and recommendations for dealing with those changes. 

     

    If you would like to receive a copy of the Webinar recording, or have any further questions about the changes and what that could mean for you, please contact our conveyancing team

    ☎️ | (07) 4646 2621
    ✉️ | 

     

    Our team has also made a range of Special Conditions, including the ones referred to in this article, available for your use via the links below:

    REIQ Contract for Houses & Residential Land (17th edition)

    REIQ Contract for Residential Lots in a Community Titles Scheme (13th edition)

  • Refinancing and Purchasing a Property at the Same Time? | Enterprise Legal

    Often to get the best deal (or even to get the deal done at all) on a new property purchase, you will need to refinance your existing loans to a new bank. Seems simple yes? Well, when you refinance at the same time as purchasing a property, it adds a whole extra layer to your transaction and as such, there are some important things you need to keep in mind during the process.

    You Need to Drive Your Refinance Process

    As we (your lawyers) are acting for you in relation to your purchase transaction and not the refinance transaction, this means we have limited ability to drive the matter, as your old financier will not discuss the matter with us as we are not a party to the transaction. It is important that you and your Broker (if you have engaged one) ‘drives’ this matter by completing the relevant forms needed as soon as required and checking in to ensure both banks will be ready by the Settlement Date under you property contract.

    Why is it Important to Drive Your Refinance Process?

    Most of the time, you will be refinancing when purchasing a property which means that it will happen simultaneously (eg. at the same time) with the settlement of your property purchase on Settlement day. This means if your refinance is not ready due to either your old or new financier not being ready, then your purchase transaction will not be able to proceed, placing you in breach of your contract. 

    Keep Us Updated!

    It is important to tell us from the start whether you are refinancing or not. As we don’t have the privilege to see how the refinance transaction is tracking, it is also important to keep us updated on how it is progressing. This also means letting us know what the outgoing (old) bank’s ‘payout figure’ is (eg. how much money you have to give them to leave), so we can ensure that your new loan covers not only the refinance with your outgoing bank but also your purchase transaction as well. 

     

    Between ourselves, you and your Broker, it is a collaborative effort to ensure your refinancing transaction and property transaction runs smoothly with no hiccups.

    Ensure a smooth transaction and getEnterprise Legal's expert conveyancing team in your corner when you buy your next property by getting in touch with us today: 

    ☎️ | (07) 4646 2621
    ✉️ | 
    🌐 | Property Conveyancing Services

  • Should My Business Have a Services Agreement? | Enterprise Legal

    If your business provides services, then the answer is YES!

     

    A Services Agreement is an essential document for every service-based business! If you’re just starting out, you should put a Services Agreement at the top of your ‘legal document priority list’ (which is definitely a list everyone has). For existing business owners, whether you’ve been going ok without one or rolling out some stock-standard agreement you found from a Google search, you should put it back on your legal document priority list, as it only becomes more important as your business grows.

     

    A tailored, well-drafted Services Agreement both protects your business (for example, in the event that a customer or client makes a claim for defective services) and clearly deals with important business policies such as cancellations, payment timing and methods, insurance etc.

     

    A Services Agreement should also be customised for your specific business and the services you provide, because one size does not fit all when it comes to these kinds of agreements. From matters such as specific legislation that might apply to the industry (eg. NDIS, medical services, specific privacy law requirements), how much notice must be given for a cancellation, to the basic style and tone of the document, different businesses will have different requirements, so it is important that your Services Agreement reflects what your business needs. This is where you can get unstuck if you ‘take inspiration from’ (eg. copy) another business’ Services Agreement (you might be copying something that isn’t actually very good) or buy a generic online document! For example, if you provide support services for NDIS participants, then grabbing a Services Agreement from the website of your local gym is probably not going to be suitable for your business.

     

    Whether you’re starting a new business or have been operating for a while and either don’t have a Services Agreement or you would like a second opinion on your current Services Agreement, the expert Business Law Team at Enterprise Legal can help. At Enterprise Legal, we take the time to learn about your business before preparing your Services Agreement.

     

    Contact the Business Law Team today or book in for your Free Business Health Check:

    ☎️ | (07) 4646 2621
    ✉️ | Submit an Online Request

  • Show Me the Money! (And the Release of Mortgage) | Enterprise Legal

    When selling your property there are several people involved in the process but three of those key players are your conveyancer, yourself, and your mortgagee / bank if applicable. 

    We all have a different role, but we all are working towards and want the same outcome. There is a common misconception that your Conveyancer will take the reins and do everything to complete Settlement on your behalf. Whilst it is our job to guide and assist you, there are certain limitations of what we can do on your behalf. 

     

    Sale of Property When There is a Mortgage 

    You have secured a contract of sale for your property and engaged a conveyancer, happy days.  

    Who else needs to know? Your Mortgagee / Bank / Lender.

    Who needs to tell them? You. 

    A Mortgage is a financial agreement (Loan) between yourself and your Lender. If your property has a Loan associated with it, you cannot sell it unless the Loan has been paid out and the Mortgage is released at settlement. This involves you completing the necessary paperwork with your Lender to request for the Loan to be released. Part of that process includes you listing us as the Conveyancer acting on your behalf for the transaction, and thus authorising us to speak to you Lender about it. 

    Your Lender will not get in touch with us or speak to us about your matter until they have received the completed Release of Mortgage request from you, and you have nominated us as your Conveyancer.  

    The lead time for your Lender to be ready to release the Loan is hard to predict as there are many contributing factors. An example being that your Lender may be waiting on valuations to be conducted of other securities you own which could add substantial delays to the normal processing time required to Release the Mortgage. Therefore, we encourage our clients to attend to the process of arranging the Release of Mortgage as soon as possible. Whilst we cannot complete this request for you, we make sure we advise you of this requirement in our First Letter Pack we send out soon after receiving the signed contract. We are also always ready to answer any questions you may have, regarding the Release of Mortgage

     

    Sale of a Property When the Loan has Been Paid but the Mortgage has not been Released 

    You have finally paid off your loan and your debt with the bank is over – Congratulations! 

    Why are we still asking you to arrange for the Mortgage to be Released? Because the Release of Mortgage has not actually been registered with Land Titles and the Mortgage is still on the Title. 

    When you purchase a property and borrow money to do so, your Lender will register a Mortgage over the Title after Settlement to confirm the Loan agreement. 

    Once you have paid off the loan amount, the Loan can be released from the Title, but to do so a Release of Mortgage needs to be obtained from your Lender and registered at Land Titles. Your Mortgagee may arrange to do this for you, or you may be provided with the Release of Mortgage for you to arrange for it to be registered.
    It may be that when it comes time to sell the property, you have not yet arranged for the Release of Mortgage to be registered. 

    If this is the case, the Release of Mortgage needs to be registered at the Land Titles before Settlement. Alternatively, you can provide the physical Release of Mortgage to us, and we can provide at settlement to the Buyer’s Solicitor. 

     

    In Conclusion 

    There is a lot involved when you are selling your property but at Enterprise Legal, our main aim is to try and make the process as stress-free as possible. 

    We have experience in what is involved in the process of selling your property, and what can go wrong so we know what to avoid.  

    Our goal in advising our clients of the importance of this process is to avoid any last-minute delays that may attribute stress, costs or ultimately, being in breach of your sale contract due to your releasing Mortgagee not being ready on Settlement Date.

     

    If you have any questions regarding your upcoming sale or any of the information in this article, please get in contact with EL's conveyancing team:

    ☎️ | (07) 4646 2621
    ✉️ | 
    🌐 | Property Conveyancing Services