Changes to Annualised Salaries
in the Modern Awards

Annualised salary arrangements allow an employer to pay an employee an annual salary that encompasses all minimum weekly wages, allowances and penalties.  Such arrangements are commonly utilised to avoid the administrative burden of paying hourly rates and associated penalties and allowances. However, as part of the four-yearly review of modern awards, the Fair Work Commission has introduced changes to the annualised salaries clause set out in a range of modern awards – and it is catching many employers out.

Annualised Salaries

The changes, which were introduced on 1 March 2020, apply to a number of modern awards, including (but not limited to):

  • Banking, Finance and Insurance Award
  • Clerks – Private Sector Award
  • Health Professionals Award
  • Legal Services Award
  • Manufacturing and Associated Industries and Occupations Award
  • Pharmacy Industry Award

For those parties to an annualised salary or wage arrangement, the changes are significant:

  1. If an employer and employee enter into an annualised salary arrangement, the employer must confirm the agreement in writing.  The employer must also keep a record of the particulars of the arrangement, including the amount payable, the terms of the award satisfied by the arrangement and the outer limit of the number of ordinary hours or overtime hours in a given pay cycle that the annualised salary compensates for.
  2. The arrangement must not result in the employee being paid less than they would have if paid in accordance with the award.
  3. If an employee works in excess of the outer limits set out in the arrangement, they must be compensated for same, calculated with reference to the relevant award.
  4. The employer must complete an annual reconciliation (or on termination of the employee’s employment) to calculate the amount payable to the employee under the award, and compare same to the annualised salary actually paid.  If the employer identifies a shortfall, that shortfall must be paid to the employee within 14 days.
  5. In order to comply with the above, the employer must also keep a record of the employee’s hours worked, to be verified by the employee each pay cycle.

It is important to note that the above changes are expected to extend to other awards in the near future.

Common law contracts and off-set clauses

There is, however, an alternative for employers who wish to take advantage of an annualised salary arrangement, without the administrative burden and complexity involved in calculating hourly rates (including penalties and allowances) in accordance with the award.  An employer can instead utilise a common law contract and off-set clause.  We note such common law contracts and off-set clauses are not affected by the changes mentioned above.

Essentially, an employer can enter into an employment contract with an employee to pay him or her an all-inclusive salary or wage that is greater than the base rate provided for in the relevant award.  Such contracts must also include a provision that the annualised salary, being higher than the base rate set out in the award, is paid in satisfaction of the employer’s obligations to pay penalties and allowances under the award.

It is important to note, however, that an improperly drafted contract could leave an employer open to an underpayment or unpaid wages claim.  Similarly, such claims may also arise from failure to comply with a relevant award.  Further, failure to comply with an award, or otherwise breach the Fair Work Act 2009, could result in the imposition of significant penalties.

Whether it is drafting employment contracts or advising on your obligations under an award, our team can assist you with all of your employment law needs.  Contact one of our experienced employment lawyers either by phone on 07 4963 2000 or through our online contact form below.

Dannielle Woodward, Solicitor, Wallace & Wallace Lawyers Mackay

Dannielle Woodward
Solicitor
Litigation & Dispute Resolution

Seek advice if you require
more information or assistance.

(07) 4963 2000
ONLINE ENQUIRY
Read More
unhappy mine worker standing in front of container payment of personal leave

Payment of Personal Leave
-Impacts on Mining & Supporting Industries

The High Court is set to consider the proper basis for the payment of personal leave, in a decision which will have broad impacts particularly for mining and supporting industries.

Q1 – How should personal leave be calculated?

In Mondelez Australia Pty Ltd v. AMWU & Ors [2019] FCAFC 138, the Full Court of the Federal Court of Australia considered the question of how to calculate the payment for personal leave.

Under the Fair Work Act 2004, employees get 10 “days”  paid personal leave (generally known as sick leave).

The question was whether the leave payment should be calculated based on:

  1. the hours of a “nominal” or average working day; or
  2. on the hours actually missed on the day of the leave.

In that case, employees worked a 36 hour week across three 12 hour shifts.

The employer argued that for each sick day, the employee ought be paid for 7.2 hours; that is, 36 hours divided by 5 working days.  The Union argued that if an employee was sick for a 12 hour shift, they ought be paid for the full 12 hours.

On the employer’s case, shift workers would receive the equivalent of six sick days, compared with the 10 for an ordinary time worker; while on the Union’s case those shift workers would receive 120 hours of leave instead of the ordinary time worker’s 72.

In other words, both outcomes involved a degree of inequity.

Q2 – How many hours are there in a sick day?

The majority Full Court of the Federal Court found that the word “day” insofar as it relates to personal leave meant the absence from work during a 24 hour period.  This meant that “day” means the number of hours that would have been worked if the employee had not been ill.  One of the three justices dissented.

The consequence is that shift workers may receive more hours of sick leave than their ordinary time colleagues.  This inequality was balanced, in the Courts mind, by the fact that neither worker would lose money under those arrangements.  The Court does not appear to have considered the countervailing additional cost to employers, which could be considerable in the mining industry given the shift arrangements and high hourly rates.

The question, is not, however finally settled just yet.  The employer has received special leave to appeal the decision to the High Court which will hear the case in early July.  If the High Court upholds the decision, it then remains to be seen whether the government (which joined the proceedings as an interested party) will intervene with new legislation.

We will maintain a watching brief on this decision and provide an update on any developments.  In the meanwhile, if you have any employment law questions or disputes, do not hesitate to contact one of our experienced employment lawyers either by phone on 07 4963 2000 or through our online contact form below.

Greg Smart Solicitor, Wallace & Wallace Lawyers Mackay

Greg Smart
Partner
Litigation & Dispute Resolution

Seek advice if you require
more information or assistance.

(07) 4963 2000
ONLINE ENQUIRY
Read More
Man pointing finger at question mark - director penalty notices

Director Penalty Notices

On 1 April 2020, amendments under the Treasury Laws Amendment (Combatting Illegal Phoenixing) Bill 2019, came into force.

Under the previous director penalty regime, a company director may have been held personally liable for the company’s unpaid Pay As You Go (“PAYG”) and Superannuation Guarantee Charge (“SGC”) liabilities.  The changes to the director penalty regime are important, and have expanded the regime to include Goods and Services Tax (“GST”), Wine Equalisation Tax (“WET”) and Luxury Car Tax (“LCT”) liabilities.

PAYG

Directors become personally liable for PAYG obligations if they are unpaid within three months of the due date.  PAYG withholding payment (and reporting) is due 28 days after the relevant payment period (see below).

For small PAYG withholding entities (i.e. where withholdings are less than $25,000.00) who are required to report on a quarterly basis, the payment date is 28 days after the end of the relevant quarter.  If payment remains outstanding three months after that date, a director will automatically become liable for that obligation.  For example, payment for the first quarter (1 July 2019 to 30 September 2019) is due on 28 October 2019.  If that obligation remains unpaid after three months, the company’s director(s) will become automatically liable for that unpaid obligation.

For medium PAYG withholding entities (i.e. where withholdings are between $25,001.00 and $1,000,000.00) who are required to report on a monthly basis, the payment due date is on the 21st day of the following month, and automatic personal liability will accrue three months after that due date.

If a company fails to pay its PAYG obligations, but lodges its activity statements within three months of the due date, the Commissioner of Taxation has the power to issue a Director Penalty Notice (“DPN”) for the value of that liability.  Directors can avoid personal liability by doing one of the following within 21 days of the DPN issuing:

  1. causing the PAYG liability to be paid;
  2. appoint a voluntary administrator; or
  3. placing the company into liquidation.

If, however, a company reports its unpaid PAYG liability after three months of its due date (or otherwise fails to lodge its activity statements), the Commissioner of Taxation can estimate the amount of the company’s PAYG liability and issue a DPN to the value of that estimate.  A DPN issued in such circumstances is a “lockdown DPN”.  Should a lockdown DPN issue, the only option available for remitting the penalty (and avoiding personal liability) is to pay the value of the penalty.

SCG

Like PAYG obligations, Superannuation Guarantee (“SG”) payment is due 28 days after the end of the relevant quarter (or 28 days after month end if monthly payment is required by an award).  If the SG is not paid by the due date, a SGC is imposed, being the sum of any unpaid SG owed to employees, plus interest and administration fees.  The due date for reporting SGC is one month after the SG due date.  For example, SG for the first quarter (ending 30 September) is due on 28 October.  If payment of SG obligations is not made by that time, an SGC will arise, which is due 28 November.  If the SGC remains unpaid on 29 November, automatic personal liability will raise.

At that point, the Commissioner for Taxation may issue a lockdown DPN.  As above, the only way to remit same and avoid personal liability is to pay the value of the penalty.

Amendments to the regime

The amendments to the director penalty regime came into effect on 1 April 2020.  In short, those amendments extended the director penalty regime to include Goods and Services Tax (“GST”), Wine Equalisation Tax (“WET”) and Luxury Car Tax (“LCT”) liabilities (much in the same way the former regime applied to Super Guarantee Charge (“SGC”) and Pay As You Go (“PAYG”) liabilities).  For the purpose of this article, we refer only to GST liabilities, although the same principles apply to WET and LCT liabilities.

GST due dates will vary between entities.  Generally speaking, GST will be reported on a monthly or quarterly basis, with lodgement due dates being 28 days after the end of the relevant month or quarter.  For example, for monthly reporting, the due date for June will be 28 July, whereas the quarterly reporting, the due date for the first quarter (i.e. the quarter ending 30 September) will be 28 October.

If a company fails to pay GST, but lodges its activity statements within three months of the respective due date, the Commissioner of Taxation has the power to issue a DPN for the value of that liability.  As with the former regime (at least in respect of PAYG), directors can avoid liability by doing one of the following within 21 days of the DPN issuing:

  1. causing the GST liability to be paid;
  2. appoint a voluntary administrator; or
  3. placing the company into liquidation.

If a company reports its unpaid GST liability after three months of its due date (or otherwise fails to lodge its activity statements), the Commissioner of Taxation can estimate the aggregate of a company’s GST liability, and issue a lockdown DPN to the value of that estimate.  Should a lockdown DPN issue, the only option available for remitting the penalty (and avoiding personal liability) is to pay the liability.

Having a DPN issue against you can carry serious implications for you and your business.  We can work closely with your accountant or financial advisor to ensure you stay ahead of these changes and avoid a DPN.  Contact one of our local experts via the form below or by phone today.

Dannielle Woodward, Solicitor, Wallace & Wallace Lawyers Mackay

Dannielle Woodward
Solicitor
Litigation & Dispute Resolution

Seek advice if you require
more information or assistance.

(07) 4963 2000
ONLINE ENQUIRY
Read More
coronovirus and businesses, carpenter, hairdresser, cafe, etc. new bankruptcy & insolvency legislation

COVID-19 (Coronavirus)
– New Bankruptcy & Insolvency Legislation

The Federal Government has introduced significant and radical measures to soften the economic blow that will undoubtedly result from the Coronavirus (also known as COVID-19).  Although there are various financial relief packages being rolled out, this article will focus on the measures intended to protect individuals and companies being pushed into insolvency.

Bankruptcy Act 1966

For a comprehensive explanation of the bankruptcy process, refer to our article on Bankruptcy.

To summarise, bankruptcy is a legal process that catches most of your debts and liabilities, and may provide somewhat of a “fresh start”.

Under the current legislation, an individual may voluntarily enter into bankruptcy (also known as a debtor’s petition for bankruptcy), or one of his or her creditors may apply to the Court (referred to as a creditor’s petition).  In order to bring a creditor’s petition, a creditor must first apply to the Official Receiver for a bankruptcy notice to issue against the debtor.  In order to make that application, the creditor must be able to demonstrate that:

  1. There is a final judgement confirming that the debt is outstanding (such as an order of the court); and
  2. The amount of the debt (or total of cumulative debts) is greater than $5,000.00.

Once issued, a creditor has six months to serve the bankruptcy notice on the debtor.  Once served, the debtor has 21 days to make payment of the outstanding debt, or apply to have the bankruptcy notice set aside.  In the event that a debtor fails to comply with a bankruptcy notice, the creditor may rely on same as a presumption of insolvency, and apply to bankrupt the debtor.

The temporary measures being introduced by the Federal Government will see the threshold of $5,000.00 increase to $20,000.00.  Further, once served with a bankruptcy notice, a debtor will have six months to make payment, or otherwise apply to set same aside.   This is a significant increased from the current 21 day period.

Corporations Act 2001

For a more comprehensive explanation of Statutory Demands and how they work, refer to our article “Statutory Demands“.

Currently, under the Corporations Act 2001 (“the Act”), a creditor may use a Creditor’s Statutory Demand for Payment of Debt (“Statutory Demand”) to recover an outstanding debt owed by a debtor company where same exceeds $2,000.00.  This includes circumstances where the cumulative total of debts exceeds $2,000.00.  Once a Statutory Demand is served (and assuming it complies with all requirements set out in the Act) a debtor company has 21 days to make payment (or otherwise apply to have the Statutory Demand set aside).  If the debtor company fails to comply within that timeframe, the creditor can apply to have it wound up in insolvency, relying on the debtor company’s failure to comply as a presumption of insolvency.

Similar to the changes to bankruptcy notices, the proposed temporary measures will see the $2,000.00 threshold for Statutory Demands increase to $20,000.00, and the time to comply increased from 21 days to six months.

Further, company directors will enjoy temporary relief from any personal liability arising from insolvent trading.  Ordinarily, a director will be personally liable for the debts incurred by the company in circumstances where the director knew, or ought to have known, the company was engaging in insolvent trading, though particularly bad examples of fraudulent or dishonest behaviour will still be actionable.

When will the changes take place?

Although the above changes are yet to be legislated, they have been drafted in the Coronavirus Economic Response Package Omnibus Bill 2020, which is expected to receive Royal Assent in the coming days.  Once passed, the above measures will be in force for a period of six months.

It is our understanding that, upon receiving Royal Assent, the changes will apply:

  • to bankruptcy notices issued after the provisions come into force; and
  • to all statutory demands (whether new or existing).

There is no doubt that these measures will see a temporary decline in insolvency action, and hopefully provide some much needed relief to those in financial distress.  Unfortunately, this may also limit debt recovery options available to creditors.  Our article, Debt Recovery v Debt Management may provide some assistance in this regard.  If you require further, tailored advice, please do not hesitate to contact us by phone or via the online link below.

It is worthwhile noting that the above measures are a small part of the relief packages being rolled out by the Federal Government.  We encourage you to keep informed of the relief available to you, and to stay safe during these difficult and unprecedented times.

Dannielle Woodward, Solicitor, Wallace & Wallace Lawyers Mackay

Dannielle Woodward
Solicitor
Litigation & Dispute Resolution

Seek advice if you require
more information or assistance.

(07) 4963 2000
ONLINE ENQUIRY
Read More
women looking at wardrobe deciding what to wear to court

I’m going to court
what should I wear?

Going to Court can be a very stressful and confusing time.  We often have clients who are unsure of what to wear, particularly if our client has not been to Court before.

It is important to present yourself appropriately, and to dress suitably for Court.  There are a few simple guidelines to follow to ensure that you are dressed appropriately.

Dress Conservatively

You should dress conservatively and make sure your clothes fit you, and that you are modestly covered.  If you are wearing a dress or skirt, you should ensure the length is appropriate for Court.  You should not wear shorts, dresses and skirts that are shorter than knee length.  If you do not have knee length attire, we recommend that you wear stockings underneath or choose to wear pants instead.

Present neatly

You should present as well groomed, with tidy hair and clean clothing.  Facial hair should be neat and any tattoos should be covered if possible.

Avoid certain items of clothing

You should avoid wearing jeans, shorts, t-shirts and thongs.  You should also avoid any item of clothing with logos or slogans that could be deemed offensive or inappropriate.

Avoid being too formal

It is not necessary for you to wear a suit and tie, dress suit or a tuxedo.  You should be aiming to be dressed in smart casual or office appropriate attire.

Avoid buying expensive new clothes

While it is important that you dress appropriately, you should not go to the unnecessary expense of purchasing expensive clothing for your Court appearance.  This would not be practical for many clients.

Many clients have appropriate clothing to wear to Court, without needing to purchase new clothes.  For example, you could wear the following:-

  • A simple ironed button down or polo shirt, dress pants and dress shoes; or
  • A dress or skirt and blouse, conservative in length (knee length or longer) and appropriate footwear.

For more information, or if you would like to speak with someone about your pending court matter, please contact our office.

(07) 4963 2000
ONLINE ENQUIRY
Brittany McIntyre, Solicitor, Wallace & Wallace Lawyers Mackay

Brittany McIntyre
Law Graduate
Criminal Law

Other Articles

Mandatory Imprisonment
for Drink Driving Offences

Have you been charged with driving under the influence of alcohol or a drug? Is it your third offence? You may be subject to a period of mandatory imprisonment.

Financial Disclosure in
property settlement cases

Financial disclosure is required in every property settlement case. However despite this clear obligation, it can often become a problem.

Changes to Annualised Salaries
in the Modern Awards

As part of their four yearly review, the Fair Work Commission has introduced changes to the annualised salaries clauses set out in a range of Awards.

Read More
personal possessions, bike, tools

Conversion & Detinue

Someone has my property and won’t give it back.  What can I do?  We hear this scenario all too often; you’ve left your personal property at a mate’s place, and now they are refusing to give it back.  Or maybe they’ve sold it, or given it away.  Depending on the particular circumstances, you may have a claim for conversion or detinue.

What is Conversion?

Conversion is when someone does something with your personal property that is inconsistent with your rights as owner of that particular property.  For example, say John lends his lawn mower to Bob and then Bob gives the lawn mower to Sharon – that’s conversion.

Using this example, to bring a claim for conversion, John must be able to prove:

  1. He is the owner of the lawn mower (or, at the very least, is entitled to exclusive and immediate possession of the lawn mower);
  2. Bob’s use of the lawn mower is inconsistent with John’s right to the lawn mower; and
  3. Bob’s conduct causes John loss or damage (such as John being out of pocket to buy a new lawn mower).

The relief available for conversion includes:

  • damages (being the market value of the property at the date of the conversion); and
  • consequential losses.

Consequential losses are those that result from the offending conduct.  For example, if the conversion relates to hire equipment that is not returned at the conclusion of the hire period, the owner would be entitled to compensation for the replacement cost of the equipment, together with any lost income.  Or, using the example above, if John operated a lawn mowing business and lost profits because he did not have the lawn mower.

What is detinue?

Detinue is the wrongful detention of another person’s goods, and is akin to conversion.  However, unlike conversion, a claim in detinue will only arise if the owner has demanded the return of the goods, which has been refused or ignored.  Again, using John and his lawn mower as an example, but Bob still has the lawn mower.  If John demands Bob return the lawn mower but Bob refuses to hand it over, John will have a claim in detinue.

In order to bring a claim for detinue, John must be able to prove the following:

  1. He is the owner of the lawn mower (or, at the very least, is entitled to exclusive and immediate possession of the lawn mower);
  2. Bob’s use or retention of the lawn mower is inconsistent with John’s right to the lawn mower;
  3. John has demanded that Bob return the lawn mower to him;
  4. Bob has failed or refused to return the lawn mower (or allowed John to collect the lawn mower); and
  5. Bob’s conduct causes John loss or damage (such as John being out of pocket to buy a new lawn mower).

The relief available for a claim in detinue includes:

  • an order for the return of the goods;
  • in the alternative, damages instead of the return of the goods (being the market value of the property at the date of the detinue); and
  • consequential losses.

Although we have used a lawn mower as an example, both conversion and detinue apply to any personal property (i.e. any property that is not real estate).  We have seen examples including motor vehicles, massage tables, and industrial equipment, to name a few.

How long do I have to bring a claim for conversion and/or detinue?

Section 12 of the Limitations of Actions Act 1974 provides that there is a six year time limit to bring a claim for conversion and/or detinue.  That time limit commences from the date the original cause of action arose.  For conversion, that will be when the goods are dealt with (e.g. the date Bob gives the lawn mower to Sharon) while for detinue the six years will start from the date of the demand.

If you do not commence court proceedings, then you may lose your legal right to sue the other person and therefore your right to claim ownership of the items.

Can someone lawfully withhold my goods?

Yes.  In certain circumstances, another person can withhold your property from you to secure payment for work performed.  This is known as a lien.

There are two types of liens; general and particular.  A general lien allows a person to detain goods until all monies owed to them are paid.  For example, a solicitor may exercise a lien over a client’s file until all debts have been paid (and not just for the particular matter to which the detained file relates).

On the contrary, a particular lien can only be exercised over goods for their related debts.  For example, a mechanic may exercise a lien over an engine he or she has reconditioned, by refusing to return the engine to the owner until they receive payment for performance of that work.  The mechanic could not refuse to return a different engine for which he or she has been paid in full.

It is important to note that this can be a complex area of law, and is rarely straightforward.

If you think you have a claim for conversion or detinue, contact one of our local experts today on 07 4963 2000 or via our online contact form.

Other Articles

Changes to Annualised Salaries
in the Modern Awards

As part of their four yearly review, the Fair Work Commission has introduced changes to the annualised salaries clauses set out in a range of Awards.

Payment of Personal Leave
-Impacts on Mining & Supporting Industries

The High Court is set to consider the proper basis for the payment of personal leave, in a decision which will have broad impacts particularly for mining and supporting industries.

Director Penalty Notices

Amendments to the director penalty regime came into effect on 1 April 2020. These changes extend a director’s obligations under the regime.

Read More
Man with head in hands because of notifiable data breach

Notifiable Data Breaches

In February 2018, amendments to the Privacy Act 1988 saw the introduction of the Notifiable Data Breaches scheme.  The Notifiable Data Breaches scheme applies to all organisations that are subject to the Privacy Act and establishes a framework for assessing and responding to data breaches.

Who does the Notifiable Data Breaches scheme apply to?

The scheme is set out in Part IIIC of the Act, and applies to all Australian agencies and organisations (including individuals, bodies corporate, partnerships, trusts and associations).  Importantly, the scheme requires an organisation to report any notifiable data breaches to the Information Commissioner, as well as the affected individual.

What is a Notifiable Data Breach?

To summarise, a notifiable data breach will occur when personal information is misused, lost or disclosed without authorisation.  Under the Act, a notifiable data breach only occurs when:

  • the loss, misuse or unauthorised disclosure of information relates to natural persons; and
  • that data breach must be likely to result in serious harm to the relevant individual.

Although the Privacy Act does not define the term “serious harm”, it does provide a number of factors to consider in determining the risk of serious harm.  Such considerations include the kind of information, the sensitivity of the information and the persons who have obtained said information.  The Explanatory Memorandum offers further guidance.

“Serious harm… could include serious physical, psychological, emotional, economic and financial harm, as well as serious harm to reputation and other forms of serious harm that a reasonable person in the entity’s position would identify as a possible outcome of the data breach.  Though individuals may be distressed or otherwise upset at an unauthorised disclosure or loss of their personal information, this would not itself be sufficient to require notification unless a reasonable person in the entity’s position would consider that the likely consequences for those individuals would constitute a form of serious harm.”

What should I do if I have breached the Privacy Act?

A notifiable data breach does not occur if an entity takes remedial action.  Remedial action includes the action taken following an otherwise notifiable data breach, to prevent the likelihood of serious harm occurring.  For example, remedial action following the loss of personal information will be sufficient if it prevents disclosure or unauthorised access to the lost information.  The underlying requirement of the remedial action exemption is that, as a result of the remedial action, a reasonable person would form a view that the misuse would be unlikely to result in serious harm to the individual to which the information related.

If you require further information about your obligations under the Privacy Act, contact one of our local experts on 07 4963 2000 or via our online contact form.  We will be more than happy to assist.

Other Articles

Changes to Annualised Salaries
in the Modern Awards

As part of their four yearly review, the Fair Work Commission has introduced changes to the annualised salaries clauses set out in a range of Awards.

Payment of Personal Leave
-Impacts on Mining & Supporting Industries

The High Court is set to consider the proper basis for the payment of personal leave, in a decision which will have broad impacts particularly for mining and supporting industries.

Director Penalty Notices

Amendments to the director penalty regime came into effect on 1 April 2020. These changes extend a director’s obligations under the regime.

Read More
Hour glass and calendar to depict litigation limitation periods

How long do I have to sue?
Litigation Limitation Periods

Whether you are enforcing your rights under a contract, seeking damages for negligence or pursuing some other form of relief, anyone considering litigation should be aware of the applicable limitation period.

A limitation period is a period of time prescribed by statute within which a legal action can be brought or a right enforced.  The limitation period commences when the cause of action accrues, and runs for the period of time set out in the written law.  In Queensland, most limitation periods are set out in the Limitation of Actions Act 1974 (“the Act”).

How much time do I have to commence proceedings?

The applicable limitation period will vary depending on the particular cause of action.  The below table sets out the limitation periods for some of the more common causes of action.

Limitation PeriodCause of Action
1 YearDefamation and Claims under the Anti-Discrimination Act 1991 (Qld)
3 YearsClaim for damages resulting from personal injuries or death
6 YearsContract, Negligence (save for claims relating to personal injuries/death), Trespass and Nuisance
12 YearsEnforcing a judgment

When does a cause of action “accrue”?

Generally speaking, a cause of action will accrue when all of the elements required to establish a claim materialise.  This will vary for each specific cause of action.  For example, a claim for breach of contract will arise when there is a breach of a material term of a contract (such as failing to pay money or completing works).  The limitation period for an action for breach of contract begins to run from the date of the breach.  As you can see from the table set out above, a claimant has up to six years to bring an action for that breach.

An action for negligence also has a limitation period of six years (except in respect of personal injury or death claims, where the limitation period is three years).  However, the limitation period for a negligence claim begins once loss is suffered or damage occurs.

Calculating the applicable limitation period is not always a straight forward process.  For example, a claimant may have a claim in both contract and negligence arising from the same circumstances.  Quite often, both causes of action are pursued simultaneously.  However, in many instances the limitation period for breach of contract will expire first.

Can a limitation period be extended?

The courts have discretion to extend a limitation period.  For example:

  • Where the claimant is under a disability, the court can order an extension of the relevant time limit to six years after a person ceased being under a disability (or died, whichever is earlier).
  • In personal injury matters, the court may extend the limitation period by one year where there is a “material fact of a decisive character” that is unknown to the claimant until at least a year before expiry of the limitation period (or afterwards).

Further, in causes of action based on fraud, the Act provides that the limitation period is postponed until the claimant has discovered the fraud, while in certain circumstances an acknowledgment of debt can extend the limitation.

Notwithstanding the court’s discretion to extend the limitation period, we do not recommend relying on the exercise of this discretion, as there is a very real possibility that any such application would be refused.  In such circumstances, you would lose your right to bring a claim before the court.

Summary

Limitation periods, and their application to the various causes of action can be complex and confusing.  As such, it is imperative that potential claimants act promptly to protect their rights.

If you think you have a claim, or would like to enforce your rights, contact one of our local experts for confidential advice on 07 4963 2000 or via our online contact form.

Dannielle Woodward, Solicitor, Wallace & Wallace Lawyers Mackay

Dannielle Woodward
Solicitor
Litigation & Dispute Resolution

Read More
neighbour trimming hedge while looking over

Neighbourhood Tree Dispute

Neighbourhood disputes can arise over a variety of matters, and have the potential to become all consuming for those involved.  One such example is neighbourhood tree disputes resulting from overhanging branches.  The question is, who is ultimately responsible for remedying these issues and any damage caused?

Who is responsible in a neighbourhood tree dispute?

The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (“the Act”) sets out who is responsible for trees located on a particular parcel of land.  That person is known as a “tree-keeper”, and includes the registered owner of the property the tree is located on.

What are the owner’s responsibilities in relation to trees on their property?

The tree-keeper is responsible for:

  • cutting and removing any branches of the tree that overhang a neighbour’s land;
  • ensuring the tree does not cause serious injury to any person, property or land; and
  • ensuring the tree does not cause substantial interference with a person’s use and enjoyment of a neighbour’s property.

A tree-keeper will also be liable for any damage caused by a tree under his or her control, such as where an overhanging branch drops and damages structures located on a neighbouring property.

How do you make a neighbour comply with their obligations in relation to trees?

Ideally, the first step would be for the parties to discuss the matter and attempt to reach a solution.  If those discussions are not possible (or unsuccessful), the Act provides a process to deal with overhanging branches.

For branches that overhang more than 0.5 metres but are less than 2.5 metres above ground

For branches that overhang more than 0.5 metres but are less than 2.5 metres above ground, a neighbour can issue a tree-keeper with a notice seeking the removal of the overhanging branches.  That notice must:

  • include a timeframe for removal (at least 30 days from the date of serving the notice);
  • ask the tree-keeper to provide at least one days’ written notice, identifying who will carry out the works and when;
  • give permission to the tree-keeper (or their contractor) to enter the neighbour’s land; and
  • be accompanied by a written quotation setting out the estimated cost of the work.

In the event the notice is not complied with, the neighbour can cut and remove the overhanging branches (within the bounds of their property), and seek reimbursement for the cost of same from the tree-keeper, up to a maximum of $300.00.

For branches that overhang more than 0.5 metres but are in excess of 2.5 metres above ground

For branches that overhang more than 0.5 metres but are in excess of 2.5 metres above ground, a neighbour can apply to the Queensland Civil and Administrative Tribunal (“QCAT”) for an order that the overhanging branches be removed at the tree-keeper’s expense.  A similar order can be sought in circumstances where a tree has grown to such heights that it causes a “substantial and ongoing unreasonable” interference with a neighbour’s enjoyment of their land.  QCAT has the authority to make a variety of orders, including an order:

  • that the tree-keeper carry out specific works, such as trimming branches;
  • that a contractor enter the tree-keeper’s property to carry out specific works; or
  • for costs, such as for reimbursement for works carried out, or compensation for damages.

It is important to note that the provisions of the Act do not prevent a party from pursuing their rights under common law.  For example, notwithstanding the provisions of the Act, a neighbour is still entitled to exercise the right of abatement (that is, removing part of an overhanging branch).  Further, the Act does not prevent the parties from bringing a claim at common law, such as a claim for negligence following damage sustained due to encroaching roots.

How can we help?

We can help with all kinds of neighbourhood disputes, regardless of whether you’re a tree-keeper or a neighbour.  Contact one of our expert team on 07 4963 2000 or via our online contact form below.

Dannielle Woodward, Solicitor, Wallace & Wallace Lawyers Mackay

Dannielle Woodward
Solicitor
Litigation & Dispute Resolution

Read More
mine workers standing in front of machinery

Annual Leave for
Casual Employees

Annual leave for casual employees?  What the decision in Workpac v Skene means for you.

Under the Fair Work Act 2009 (Cth), an employer is required to pay its permanent employees (part-time and full-time) a number of entitlements, such as:

  • paid annual leave;
  • paid personal leave;
  • paid compassionate leave; and
  • redundancy pay.

Casual employees, on the other hand, are paid at a higher rate than their permanently employed colleagues (due to a 25% casual loading allowance), although there is no requirement for an employer to pay its casual employees any other entitlement, such as annual leave.

However, that position has been challenged in the landmark ruling in Workpac v Skene (2018) FCAFC 131 (“Workpac v Skene“).  In that matter, the Court found that an employee engaged on a casual basis, yet working a regular seven day on, 7 day off roster (set 12 months in advance), was properly characterised as a permanent employee and therefore entitled to be paid annual leave.

In summary, Mr Skene was employed by Workpac as a fly-in, fly-out, mine-site machinery operator between April 2010 and April 2014.  At all material times, Mr Skene’s employment with Workpac was described as casual.  Following termination of his employment in April 2014, Mr Skene made a claim for unpaid annual leave entitlements, on the basis that his employment was actually permanent in nature.

Ultimately, the Full Court of the Federal Court of Australia agreed with Mr Skene, and found that his employment with Workpac – although described as casual – lacked the “essence of casualness“.  In particular, the Court noted that casual employment generally involved the following:

  • irregular work patterns;
  • uncertainty;
  • discontinuity;
  • intermittency of work;
  • unpredictability; and
  • flexibility in the employment relationship.

As a result, the Court held that Mr Skene was entitled to be paid annual leave entitlements.  However, the Court also recognised that it was inequitable for an employee to receive both permanent employment allowances (such as paid leave) and casual employment allowances (i.e. loading).  As such, it was held that an employer is entitled to set off any permanent employment entitlements against casual loading actually paid, provided that the amount paid for loading could be readily ascertained.  Certainly, the introduction of the Fair Work Amendment (Casual Loading Offset) Regulations 2018 (Cth) now provides an employer with a statutory right to set off permanent employment entitlements owed, with casual loading already paid.

Workpac v Skene is an important decision that has the potential to impact many employers of casual employees.  The decision serves as a reminder to employers that they should:

  • review existing agreements to ensure employees are properly characterised and paid the appropriate allowances;
  • review rostering practices and avoid engaging casual employees on a regular and consistent basis;
  • ensure that casual employees are being paid a clearly identifiable casual loading; and
  • consider transitioning long-term casual employees to permanent positions.

If you require more information regarding the decision in Workpac v Skene, or employment matters in general, don’t hesitate to contact our local, expert team on 07 4963 2000 or via our online contact form below.

Dannielle Woodward, Solicitor, Wallace & Wallace Lawyers Mackay

Dannielle Woodward
Solicitor
Litigation & Dispute Resolution

Read More
TAKE ACTION