Category Archives: LABOUR LAW

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

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

Facebookers beware!

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The Full Bench of Fair Work Australia (FWA) has upheld the reinstatement of an employee who was terminated for posting offensive comments about his managers on Facebook.

The employee was dismissed after he posted comments on Facebook about two of his managers that were ‘offensive, derogatory and discriminatory, and included suggestions of dishonest and underhanded conduct, and comments of sexual misconduct’. He had some 170 Facebook friends who could see the comments, many of whom were also Linfox employees.

FWA held that the employee’s actions did not amount to serious misconduct, and that the termination of his employment was harsh, unjust and unreasonable.

Linfox appealed FWA’s decision on several grounds. The Full Bench granted permission to hear Linfox’s appeal, due to the importance of clarifying issues regarding use by employees of social networks, in the context of their employment obligations.

However, the appeal was dismissed, with the Full Bench finding that the FWA’s decision at first instance was reasonably open.

The Full Bench noted that a posting on Facebook may provide a valid reason for termination, but each case will depend on the nature of the comments and the width of their publication.

The Full Bench found that FWA’s conclusion that the comments did not amount to serious misconduct was reasonably open, especially considering:

  • some comments were made not by the employee but by his Facebook friends; and
  • some were ‘so exaggerated or stupid as not to amount to any credible threat’.

It followed that the Full Bench considered there was no valid reason for termination.

Even if a valid reason for dismissal had been established, the Full Bench considered that termination was harsh, unjust or unreasonable, because of the employee’s:

  • belief he was using Facebook’s maximum privacy settings;
  • long employment with Linfox (21 years); and
  • regret over his behaviour.

In addition, the comments were made outside the workplace, and other Linfox employees who had participated in the online conversation were not subjected to disciplinary action.

The Full Bench also upheld FWA’s order for reinstatement, finding the conduct the employee had engaged in was not so destructive of the employment relationship that reinstatement was inappropriate.

The Full Bench’s decision is a reminder to employers that derogatory or insulting comments by employees made outside the work setting in online posts may not amount to conduct justifying dismissal.

The decision places the onus on employers to educate employees about their expectations regarding the use of social networks, or face the risk that employees will use ignorance of these as a basis to excuse inappropriate online posts. Development of a social media policy is a desirable step in communicating an employer’s expectations.

For further information on the Emplyment Law matters, please contact our Principal Solicitor, Mr George Hanna on (02) 9587 0458 during business hours.

The Commonwealth Government has introduced new gender reporting requirements.

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The Senate has passed the Government’s workplace gender equality legislation, the Equal Opportunity for Women in the Workplace Amendment Bill 2001 (Cth). The Bill establishes a new reporting framework for employers and changes the name of the Equal Opportunity for Women in the Workplace Act 1999 (Cth) (EOWW Act) to the Workplace Gender Equality Act 2012 (WGE Act).
The new law aims to “modernise” the EOWW Act to change the focus of gender equality legislation from equal opportunity in the workplace for women only, to gender equality in the workplace for men and women through new reporting requirements for employers.

The key changes to reporting requirements to commence in May 2014 are summarised below:

  • Gender Equality Indicators: all relevant employers (i.e. non-public sector employers with 100 or more employees) must report annually on their compliance with a set of gender equality indicators (GEI). GEI’s are defined as:
    • gender composition of the workforce;
    • gender composition of governing bodies of relevant employers;
    • equal remuneration between men and women;
    • availability and utility of employment terms, conditions and practices relating to flexible working arrangements for employees and to working arrangements supporting employees with family or caring responsibilities;
  • consultation with employees on issues concerning gender equality in the workplace; and
  • any other matters specified by the Minister.
  • Minimum standards: the report must meet minimum standards, set by the Minister each year. The standards will be evidence based, relating to quantitative outcomes or evidence of actions taken that are aimed at improving quantitative outcomes.
  • Chief Executive sign-off: the report must be signed off by the Chief Executive Officer of the employer.
  • Notification and access: after the report is lodged, employers must inform their employees, shareholders and unions that the report has been lodged and provide access to the report to employees and shareholders. Employers must also allow employees and unions an opportunity to provide comments on the report to the Agency and/or employer.

The transition to the new reporting obligations will be phased in over the next two years.

Consequences for non-compliance with the reporting obligations under the WGE Act- the Workplace Gender Equality Agency will name non-compliant employers through its annual report and other means. Additionally, non-compliant employers may also be ineligible to compete for Commonwealth procurement contracts, Commonwealth grants or other financial assistance.

Should you wish to arrange a consultation, please contact Mr George Hanna by email on ghanna@gmhlegal.com  or call us on (02) 9587 0458.