Category Archives: Government

Ramsey v The Trustees for the Roman Catholic Church for the Diocese of Parramatta

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GMH Legal has recently succeeded in a significant unfair dismissal case heard before the Fair Work Commission. The Applicant, Mr Michael Ramsey, was an IT manager for CatholicCare in the Roman Catholic Diocese of Parramatta.

Mr Ramsey had been a full-time IT manager at CatholicCare since July 2010. During the course of his employment with CatholicCare, Mr Ramsey maintained a high standard of work, and was well-liked by his colleagues with witness statements and evidence tendered in Mr Ramsey’s favour being given by two former CEO’s of CatholicCare and the religious consecrated members of CatholicCare.

Mr Ramsey was summoned by the HR Manager of the Roman Catholic Diocese of Parramatta for a work performance meeting on three occasions. These meetings were outside of his usual place of employment and were scheduled to take place in the Diocesan Chancery office. On the first two occasions Mr Ramsey was kept waiting by the HR Manager for four hours each time as the HR Manager was too busy to meet him. Vice President Hatcher in his Fair Work Commission judgement dated 27 January 2017 characterised the HR Manager’s treatment of Mr Ramsey “arrogant and disrespectful”.

After a faultless almost seven year employment period with CatholicCare, Mr Ramsey was given two warning letters on the same day by CatholicCare, and was then terminated three (3) days later when the HR Manager for the Catholic Diocese of Parramatta, accused Mr Ramsey of pushing her on the shoulder.

The two warning letters given to Mr Ramsey were found to be “issued without any proper justification” and “a completely excessive response” by Vice President Hatcher.

Vice President Hatcher went on to state that the HR Manager “did not attempt any independent investigation or analysis” of any of the employment matters of concern prior to issuing the warning letters to Mr Ramsey. On issuing two warning letters on the same day, Vice President states “additionally, the process of constructing and delivering two separate warning letters at the same time, instead of one letter, was entirely artificial and, I infer, intended to build up an adverse employment record for Mr Ramsey.”

The allegation of a push


On 9 May 2016 the HR Manager alleged that Mr Ramsey pushed her after the following conversation allegedly occurred:

  • HR Manager: You know what, you are not going to stay here, I will sack you.
  • Mr Ramsey: Why? What have I done wrong?
  • HR Manager: What the fuck do you think you are?
  • Mr Ramsey: Watch your words, this is discrimination and bullying to me. Lee is here and witness[ed] your F word.
  • HR Manager: I didn’t say anything and Lee didn’t hear anything.
  • Mr Ramsey: Are you Catholic, and you are at the Diocese of Parramatta and working here with words of God helping people, you will never go away from God.

In the HR Manager’s version of events, Mr Ramsey then used his right arm and hand to shove her on her right shoulder. In her witness statement, the HR Manager described it as “a decent shove”. In her oral evidence, the HR Manager went further and said that the shove had forced her two or three steps backwards.

In his judgement, Vice President Hatcher found that “I cannot accept [the HR Manager] as a witness of credit”. Vice President Hatcher found that “there are numerous other aspects of [the HR Manager’s] evidence and conduct which cause me to question her veracity”, and that her evidence at times was in direct contradiction with Mr Joe Cashman (Director of Administrative Services for the Diocese), Mr Geoff Officer (Chief of Operations and Finance of the Diocese), Mr Lee Netana (the IT Manager for the Diocese). As to other evidence that the HR Manager put forward as to having discussions with the leadership team of the Diocese to dismiss Mr Ramsey, Vice President Hatcher found “that [the HR Manager’s] evidence was plainly false” and further that her evidence was “not only was it directly inconsistent with the evidence of Mr Netana and Mr Ramsey, but it was also contradicted by Mr Cashman and Mr Officer.”

Mr Ramsey’s dismissal was found to be “harsh, unjust and unreasonable”. Vice-President Hatcher was “not satisfied that there was a valid reason for the dismissal”, and Mr Ramsey was denied procedural fairness and was dismissed by a person lacking impartiality and authority. As a result of this, Mr Ramsey was awarded 26 weeks in compensation.

The full judgement can be viewed here.Judgement – Ramsey v The Trustees for the Roman Catholic Church for the Diocese of Parramatta

Australians can apply to grow cannabis for medicinal use from November 2016

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marijuana

Growing cannabis legally is a step closer as federal legislation comes into effect allowing the drug to be grown for medicinal purposes. Australia has enacted the Narcotics Drugs Amendment Bill of 2016 to “establish licensing and permit schemes for the cultivation and production of cannabis and cannabis resin for medicinal and scientific purposes.”

The Office of Drug Control is currently accepting applications for cultivation licenses from companies and individuals. Those who are granted permission to grow nature’s most versatile crop in Australia can only supply it to a licensed medical cannabis manufacturer or researcher.

Further to the supply chain details, anyone applying will need to pass a test to prove they are “fit and proper” — a background and security check to ensure the potential cultivator will take the precautions necessary to protect a high-demand crop prone to theft.

Hundreds of people have been attending information sessions on how to obtain a license, so it’s clear that interest in the burgeoning Australian cannabis industry is high. Attendees ranged from small individual operators to large international corporations.

The first legal cannabis crop was planted earlier this year by the Victorian Government with the Federal Government’s approval. The location is secret.

THC, the major active component of marijuana, has broad medical use — including for pain relief, nausea and anxiety. Previous research has also found that it could reduce tumor size in cancer patients. However, it is also known to induce numerous undesirable side effects such as memory impairment, anxiety and dependence. Published studies have also shown that marijuana use is linked with lower IQ, with people who use marijuana experiencing problems in their brain regions associated with visuo-spatial processing, memory, self-referential activity and reward processing.


New laws introduced on 30 November 2016 allow for the forced sale of units in an apartment

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forced sale of apartment buildings

The strata management industry is in for a significant shake up with the “once-in-a-generation” changes to strata laws being introduced on November 30, 2016.

The NSW Government has amended the laws regarding the management of apartment buildings allowing 75% of owners in apartment blocks will be able to sell the entire building to developers, regardless of objections from the other 25%. Essentially the 25% of the apartment block owners will be forced to sell.

Currently you need 100% of owners in an apartment building to force the sale of a building. The new laws will take effect 30 November 2016.

There are further changes that will arrive as a result of the NSW Governments changes to the strata laws. What the New South Wales Government is hailing as “modern,” “flexible” and “reflecting 21st-century strata living” will be the kiss of death for many agency agreements, as some strata managers face the prospect of their income disappearing overnight.

One of the government’s selling points is “stronger accountability for strata managers and caretakers” and under the new laws developers and people connected with them will be banned from being managing agents for 10 years from the registration of the strata plan.

That means many managing agents won’t be eligible for reappointment when their existing agreement comes to an end, and for some that could be as early as the end of December.

This presents significant opportunities for independent managing agents to win new business.

For strata managers, the rollover of agency agreements has been an industry-wide practice. By not being presented with a contract for renewal, but simply asked to roll over a contract, executive committees have a much easier path. They do not have a decision to make and invariably maintain the incumbent.

When the new legislation comes into force, agency agreements between the strata managing agent and the owners corporation will be limited to a maximum term of three years. After that, the strata committee (currently known as the executive committee) would then be able to extend the appointment in three-month blocks, but only until the next annual general meeting.

Strata managers also won’t be able to receive gifts and other benefits from suppliers which will stop a very common practice of strata managers receiving considerable financial rebates from suppliers to a strata building.

Pet owners are getting a break with the new laws, with the new standard bylaws including a default option that allows pets to reside in apartment building.

And the management of the strata scheme is moving into the electronic age, where a scheme can adopt social media, video and teleconference to hold meetings. Voting can occur electronically and through secret ballots, with the possibility of sending papers by email.

Chinese regulators may turn off the money flow that is funding the Australian real estate bubble

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A Chinese Government crackdown on the recently exposed activities of the Bank of China’s money laundering efforts in Australia will have repercussions on the sustainability of high property values in Sydney and Melbourne.

China’s state broadcaster CCTV has launched an attack on one of the country’s most powerful government controlled financial institutions – the Bank of China, accusing it of money laundering in Australia, via the Australian Significant Investor Visa Program.

Australia’s Significant Investor Visa program offers an accelerated pathway for wealthy investors to gain permanent residency by investing $5 million in the Australian economy.

There are over 1,200 applicants either approved, or in the pipeline for approval for the Significant Investor Visa, with an estimated $6 billion of proposed investments in Australia. A significant amount of the funds being invested in Australia through the program have been used to fund new residential housing developments in major Australian cities, particularly Sydney and Melbourne.

Chinese and other Asian investors have been a major force in driving the price of dwellings in Sydney and Melbourne to high levels. If the Chinese were to suddenly curtail their buying, then the Australian dwelling market would almost certainly suffer a considerable setback.

Under the Labor government, only a small number of Significant Investor Visas’ were granted, whereas the Liberal government is ramping up its approved of the Visa’s.

Under China’s stringent foreign exchange law, citizens are only allowed to send $US50,000 or $A53,000 abroad per year. Australia has been repeatedly been mentioned as the destination of “grey money” coming out of China in relation to Australia’s significant investor visa program.

“We don’t care where your money is from or how you earn it, we can help you get it out of the country”, a Bank of China employee told CCTV. “We don’t care how black your money is or how dirty it is, we will find ways to launder it and shift it overseas for you,” according to a detailed CCTV investigative report.

CCTV undercover footage clearly shows the Australian national flag on a Bank of China stand at a busy immigration show, advertising Australia as an important destination for investors. Social media posts from major media outlets about the story prominently feature a picture of a map of Australia

A senior manager with one of the big four Australian banks told the CCTV reporters that the Bank of China was crucial to the bank’s migration business. “The money is very safe and will leave the country in a very grey channel. The Bank of China is the same as an underground bank [a Chinese term for black market operators that launder money],” he told CCTV.

We have just seen development land in Melbourne and Sydney with building permits double in price on the back of frantic Asian buying, funded by Chinese banks.
The risk of the curtailing of the Significant Investor Visa program leading to a significant downfall in the residential property market cannot be discounted, and even the possibility of the end of the program leading to a technical recession must be acknowledged.

We will be watching to see whether Chinese regulators turn off the money flow that is funding the Australian real estate market.

Contact us for a Free Consultation


Our lawyers always go over and above to give you the best advice as quickly as possible.

Whether its quick information over the phone for a question that’s been on your mind for while, or general information about an area of law, we’re happy to help. Call us today and experience the difference:

Tel: (02) 9587 0458
Email: solicitors@gmhlegal.com

Legal Duties & Responsibilities of an Employer

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Under NSW law, the Duties of an Employer (provided a contract of employment is established) includes

  • the provision of workers’ entitlements under various laws and awards (both state and federal), and
  • compliance with taxation/superannuation laws.

To comply with these duties (and avoid running foul of inspectors from the Department of Industrial Relations and civil litigation), the employer should (in law they must), inter alia:

  • Obtain their own Australian Business Number (ABN).
  • Obtain a policy of Workers compensation insurance. (It is recommended, but not compulsory, that employers obtain Public liability insurance against vicarious liability for the torts of employees.) Employers should display the policy of insurance, and maintain a record of any injuries or related incidents in the workplace.
  • Obtain a Tax File Number (TFN) number and a TFN declaration from the worker, and supply the declaration to the Australian Taxation Office.
  • Pay wages and other financial entitlements to the worker/emplyee as set out in the applicable award, Enterprise Bargaining Agreement (EBA), or Australian Workplace Agreement (AWA), or New Modern Award (NMA’s came into effect on 1/1/2010, replacing most State and Federal Awards, or National Employment Standards (NES now apply and provide minimum terms of employment for most employees in Australia.)
  • Comply with all other requirements (as to loadings, allowances, conditions, union entitlements, etc), imposed by any industrial instrument, or award, or EB, AWA, NMA that applies to the contract of employment.
  • Make provision for Superannuation for employees (except for employees who are aged over 70, or under 18 & working less than 30 hours/week or earning under $450/month). This first became compulsory in the result of a 1980’s national wage case, and has since been written into statute law. This is known as the Superannuation guarantee. Employers must contribute 9% of wages to a superannuation fund, but according to recent (2010) government announcements, this percentage will rise to 12%. From 2005 employees have a choice of fund.
  • Make Leave provision (in compliance with the Annual Holidays Act NSW and the Long Service Leave Act). That is, set money aside to pay a worker during the worker’s paid holidays. (Note that the contract of employment has terms inserted into it by statute that prescribe: employer pays for annual holidays, and public holidays.
  • Maintain Wage records. Most newsagencies sell a Zions Systems “Hours and Wages Record Book”, which is suitable for that purpose. Different size books are available for different sized workforces.
  • Provide wage slips to employees, to accompany regular payments of wages, as required by the NSW Industrial Relations Act 1996.
  • Make Pay As You Go (“PAYG”) tax deductions from wages. The ATO will supply blank PAYG Payment Summaries and also “PAYG Tables” to calculate the amount of the deduction. After the end of the financial year, the employer must supply a PAYG payment summary annual report to the ATO by 14 August.
  • Forward the accumulated PAYG tax deductions to the Tax Office, together with the quarterly (?) BAS.
  • Supply annual Payment Summaries to employees by 14 July, each year. Before PAYG Payment Summaries became the rule, employers supplied “group certificates” their employees. That terminology still persists and is commonly applied to the PAYG Payment Summaries. The employer also supplies a copy of the PAYG Payment Summary to the Tax Office.
  • Keep records such as PAYG payment summary annual reports, and PAYG Payment Summaries, for 5 years.
  • Give Reasonable notice prior to dismissal (see Dyer v Peverill (1979)2NTR1 below), or pay in lieu of notice.
  • Provide a Separation Certificate to the worker, upon dismissal of the worker.
  • Provide procedural fairness prior to any summary dismissal for “misconduct”.
  • In order to comply with various obligations, an employers’ letter of dismissal [or final payment] could say: “Enclosed herewith is (a) final payslip, and (b) a cheque in the sum of XX being for pay due from XX To XX less PAYG. Accrued LSL, AL up to XX, XX days $20. Enclosed herewith is Certificate of Service. Enclose herewith is Employment separation certificate (saying: This is to certify that fred bloggs was an employee of ?? from ?? to XX.)”.
  • Note: Regardless of what any award or written contract says, an employer is vulnerable to unfair dismissal claims (See Part 6 of the Industrial Relations Act 1996), and possibly claims under s.106 of the Industrial Relations Act 1996. (An employer is g generally vulnerable to intervention by the Industrial Relations Commission.)
  • (Note that the Howard government amended Federal laws affecting unfair dismissals, and I think these laws don’t apply with workplaces with fewer than 15 employees.)
  • Make provision for possible redundancy payments under s.119 of the Fair Work Act (Commonwealth).

Changing A SMSF Trustee to a Corporate Trustee

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SMSF


Benefits of a Corporate Trustee

1. Changing Members


If an SMSF is set up with a corporate trustee structure you can add a member (e.g. a spouse or child) or remove a member (e.g. if a member dies or can no longer act as trustee) with much less hassle than an individual trustee structure. If there is a change of fund members, it’s not necessary to change the name on the ownership documents for each fund asset as the trustee of the fund remains the same.

On the other hand, a fund with an individual trustee structure will be required to re-register all assets held in the SMSF (with relevant authorities and registries) each time a member is added or removed. If you have a number of different investments in your fund, this can result in a lot of administration, paperwork, time, and potentially cost, to manage this change. For corporate trustees, the only change is notification to both ASIC and the ATO of the change of directors and members as the name on the assets will be the name of the corporate trustee.

2. Estate planning


An SMSF set up with a corporate trustee can have a single member and director. So, if one member of a two member fund leaves (for example, where either a husband or wife member passes away) and a corporate trustee structure is in place, the fund will continue to satisfy the trustee structure rules. In the case of a two member SMSF with an individual trustee structure, if one member dies, another individual will need to be appointed as a trustee of the fund.

3. Borrowing to purchase property


If you are looking to borrow to purchase property in your SMSF most banks require a corporate trustee arrangement. Banks generally prefer that a separately recognised legal entity is identified as trustee of the fund.

4. Reduced liability


A corporate trustee structure can also provide greater peace of mind around liability. Your personal liability, as a director of a corporate trustee, is generally limited to the assets held within the SMSF. An individual trustee arrangement does not provide this security and members’ personal assets may be subject to liability claims. This could be particularly important for you if you are considering holding property in your SMSF as public liability claims can be substantial.

5. Clarity


Having a corporate trustee makes the separation of assets and income for individuals clearer. This makes it easier to satisfy the regulator that superannuation assets are being separately maintained from the member’s personal assets.

When changing to a corporate trustee, the provisions of the Superannuation Industry (Supervision) Act 1993 (Cth) (‘SISA’), which impose an additional regulatory framework in relation to corporate trustees of SMSF’S, must be considered. Relevant provisions are:

  • Under as 17A(1) SISA, all members of an SMSF with a corporate trustee must be directors of the corporate trustee of the fund, and vice versa, each director of a corporate trustee must be a member of the SMSF;
  • Under s188 SISA, an individual is not eligible for appointment as a director of a corporate trustee unless they have consented to the appointment in writing; and
  • Under s104A SISA, all individuals becoming directors of a corporate trustee of an SMSF must sign a declaration in the approved form confirming that they understand their duties as directors of thee corporate trustee within 21 days after their appointment. The approved form is the ATO ‘Trustee Declaration’ (NAT 71089). This declaration must be retained by the corporate trustee for as long as it is relevant, and in any case for at least 10 years.

Some other relevant considerations that should be borne in mind include:

  • A corporate trustee must not be paid for their services as trustee, and no director of the corporate trustee can be paid for their duties or services as a director of the trustee;
  • The assets of the fund need to be registered in the name of the company that has been set up to act as corporate trustee; and
  • A company established as the corporate trustee will require a company constitution and certificate of registration.


What is required when transferring from a individual trustee to a corporate trustee?


The following steps will have to be taken if you choose to switch to a corporate trustee:

  • A company must be established to act as corporate trustee;
  • A constitution must be drafted for this company;
  • The current trustees must provide the incoming corporate trustee an instrument in writing stating they will be retiring as trustees and the corporate trustee will be assuming duties as trustee at a given date and this instrument being signed by all relevant parties;
  • The company must provide a signed consent stating it consents to acting as corporate trustee;
  • The directors of the corporate trustee must provide a signed consent stating they consent to being appointed as directors of the corporate trustee;
  • The directors must provide the corporate trustee with a signed ‘Trustee Declaration’;
  • All assets of the fund must be transferred to the name of the corporate trustee.


Contact us for a Free Consultation


If you have any questions regarding your SMSF, call the experienced lawyers at GMH Legal for a FREE consultation:

Tel: (02) 9587 0458
Email: solicitors@gmhlegal.com

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Our Legal Fees & Services

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Family Law, Criminal Law, Immigration, Traffic Law

At GMH Legal we believe that client relationships matter more than time sheets which is why we offer a range of alternative fee arrangements to best suit your needs.

Our focus is on client service and establishing mutually rewarding relationships with our clients. We think that billing by the hour does not encourage the most efficient and effective delivery of legal services.

We strive to be innovative and eliminating the inherent inefficiencies of the billable hour means that we can focus on achieving the best possible result for our clients.

However, we do recognise that not all matters lend themselves to an alternative fee arrangement. That is why we offer a range of alternative fee arrangements, including straight time based billing if that is what works best for you.

We will work in collaboration with you to determine your specific legal requirements and then develop the most effective strategy and fee arrangement for your needs.

What we offer

GMH Legal can offer you the following fee arrangements, or a combination of these, as an alternative to time based billing. These options can be customised to suit your needs. No matter what fee arrangement you prefer, providing you with certainty by scoping and pricing our work upfront is our priority.

Fixed and value pricing

GMH Legal can charge you a fixed price for any matter. We will quote you a price and stick to it. If there is a change in the agreed scope of work, we will send you a variation detailing the new scope and the price for that change.

Value pricing is a fixed price that we agree up front with you that reflects your legal requirements and the service we provide. With value pricing you don’t pay for our time – you pay for the work we do and the value you receive.

This ensures you receive more value for your legal spend. Value pricing can also include fee incentives to achieve your goals and for results that exceed expectations. These incentives align our interests with yours, making your success our success.

Flexible retainers

With a retainer agreement, GMH Legal will charge you a fixed periodic fee for the provision of legal services. A retainer provides the budgetary control and certainty that hourly billing can’t.

We determine the periodic fee by calculating the average value of our services over the time taken to conduct the matter. A retainer means you know exactly what you will pay for the result you desire.

We will regularly review the terms of the retainer with you to ensure it remains fair to both parties.

Event-based pricing

GMH Legal can charge you a fixed price for each stage of a matter. We work with you to properly scope the matter, determine the stages involved and then agree a fixed fee with you for each stage.

Want to know more? Contact us to discuss how we can tailor a fee arrangement to best suit your needs.

George Hanna
Director Solicitor

Tel: (02) 9587 0458
Email: solicitors@gmhlegal.com

ASIC reviews Dark Liquidity and Kill Switches

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The Minister for Financial Services and Superannuation Bill Shorten has announced a package of market integrity rules that will better protect investors who use Australia’s financial markets.

The rules were developed following extensive consultation by ASIC.

The package will provide for the direct control over trading algorithms, including kill switches and new extreme trading rules in case of large price movements.

The Minister for Financial Services and Superannuation recently announced new ASIC Market Integrity Rules to address the growth in automated trading and the changing nature of dark liquidity in equities markets.

These new rules appropriately balance the need for additional regulation to address the changes in the equities markets without succumbing to the unsubstantiated hysteria that has plagued the public debate on these issues in recent months.
The two most crucial elements of the new automated trading rules relate to extreme price movements and “kill switches”.
The extreme price movement rules, which take effect immediately, require ASX and Chi-X to impose a brief trading pause in the event of an extreme price movement. This pause is intended to allow investors to reconsider positions and allow algorithms to reset in response to large price changes.

A “kill switch” requires that brokers have direct and immediate control over algorithms which are sending orders to the market through their systems. The rules require that brokers prohibit the entry of orders to the market where they “have interfered with or are likely to interfere with the efficiency or integrity of the market”.

Most of the media discussion on these new rules has suggested that they are designed to curb the activities of high frequency traders. But in reality, their scope is much broader. The rules address the potential for anomalous orders from all types of trading algorithms, not just those used in high-frequency trading (HFT). HFT is a subset of algorithmic trading that is dependent on being able to enter and amend orders at very high speed.

New rules also include a requirement that dark pools offer meaningful price improvement over the market with exemptions for block trades, and additional data reporting requirements to assist ASIC in performing market surveillance.
The market integrity rules would provide for an immediate obligation on the market operators – the Australian Securities Exchange and Chi-X – to enforce an extreme trading range for trades in securities, in addition to new data reporting requirements on operations from 2013.

While the market integrity rules are a good start, stakeholders advised there were additional issues that needed to be considered, and as a result, ASIC has also launched two task forces focused on dark liquidity and high-frequency trading. They are due to report to the government in March 2013.

A New Tax Guide for NFPs

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The ATO has released a new version of their guide Tax Basics to assist Non Profit Organisations operate through the maze of regulations.

The guide provides an overview of tax obligations and concessions for not-for-profit (NFP) organisations and helps to identify which taxes affect organisations, including income tax, fringe benefits tax (FBT), goods and services tax (GST) and pay as you go (PAYG).

Changes to the guide include:

  • 1. A new diagram showing the relationship between the types of NFP organisations
  • 2. Additional information on salary sacrifice and gifts made to deductible gift recipients (DGRs)
  • 3. Information on record keeping requirements for DGRs
  • 4. Additional information on reporting and paying tax, including lodging annual income tax returns
  • 5. Updates to tax policy.

Should you require any assistance for your non-profit organisation, please contact the Principal Solicitor for GMH Legal, Mr George Hanna on 02 9587 0458.