News

Can an employee’s knowledge be attributed to the company?

Commonwealth Bank of Australia v Kojic [2016] FCAFC 186 considered whether the conduct of two bank employees could be ‘aggregated’ to bring a finding of unconscionable conduct on the part of the bank under the (previous) Trade Practices Act 1974. The case was an appeal from the earlier decision (Kojic v Commonwealth Bank of Australia [2016] FCA 368) when the Court determined the bank’s conduct unconscionable due to the combined knowledge of employees engaged in separate but related transactions. The...

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Unfair dismissal at the end of a fixed term contract. What?

Fixed-term employment contracts are common in many workplaces. Understandably, most employers consider they would be protected from an unfair dismissal claim once the term ends. However, in Saeid Khayam v Navitas English Pty Ltd t/a Navitas English (‘Navitas’) [2017] FWCFB 5162 the Full Bench of the Fair Work Commission found that an employee may have rights to pursue unfair dismissal proceedings even though the employment ends at the expiration of a fixed-term contract. The case emphasises the need for businesses...

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Understanding a company charge and the PPSA

Essentially, a company charge is a security interest held by a lender over the personal property of a company. The charge is given by the company (the chargor) to the lender (the chargee) to secure payment of a debt or obligation. A charge does not give the lender a legal interest in the property by way of mortgage or possession but a right to enforce its interest upon the happening of an event, such as default or insolvency. Company charges...

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Disputes and the Australian Taxation Office

Given the complexity of the taxation regime and the requirement for taxpayers to initially self-assess their liabilities, disputes between taxpayers and the Australian Taxation Office (ATO) will inevitably arise from time to time. If you disagree with a decision that the ATO has made about your tax affairs, you have the right to have it reviewed. However, the ATO encourages you to first seek to clarify misunderstandings or disagreements by contacting them. If this does not resolve the issue, it...

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Minimising directors’ liability – deeds of insurance, access and indemnity

Company directors have many responsibilities when carrying out their duties. Generally, company directors and officers are not personally liable for a company’s debts. Certain circumstances however can arise where directors may find themselves facing legal or other regulatory action exposing them to personal liability. Generally, the more complex the role, the greater the risk. In addition to potential civil proceedings being brought against a company and personally against its directors, regulatory bodies such as the Australian Securities and Investment Commission...

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Interview questions you can’t ask

An employer’s potential liability for workplace discrimination arises before the first interview and exists whether or not a decision is made to hire a person. A job interview is integral to the recruitment process and provides an opportunity for the employer to ask questions, check credentials and determine a prospective employee’s suitability for a position. It also provides reciprocal opportunities for candidates to find out more about the role and the organisation and to assess their interest in the position....

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Alternative Dispute Resolution Explained

Litigation can be a costly and time-consuming process and parties are increasingly seeking alternative forms of resolving disputes. This article provides an overview of the main types of alternative dispute resolution (ADR) options and their respective benefits and limitations. What is ADR? The term ADR is used to describe dispute resolution processes that do not involve traditional litigation procedures or final adjudication of a Court or Tribunal. The aim of ADR is to provide participants with a quicker and cheaper...

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Franchisors must act in good faith and reasonable cause

A franchise operates within an existing business structure that gives the franchisor discretion to implement strategies, introduce new products and set prices for the ‘branded’ goods or services. These commercial decisions however must be exercised in ‘good faith and reasonableness’. The obligation of good faith is reflected in the Franchising Code of Conduct which sets out mandatory processes for buying and selling a franchise and regulates the conduct of franchisors and franchisees. The obligation of good faith was considered at...

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The benefits of mediation in a commercial dispute

Lawyers are often stereotyped as being interested in prolonging an expensive Court action, more often the opposite is true. Lawyers know that Court cases are expensive and that clients are fearful that legal costs could escalate to an intolerable level. Lawyers interested in preserving long standing relationships with their clients will often recommend alternative dispute resolution options instead of going to Court - mediation being one. According to the Professional Dispute Resolution Centre in Perth there is a settlement rate...

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Common misconceptions about estate planning

An estate plan involves more than signing a Will and leaving it in a safe place. An effective estate plan requires consideration of several matters and ongoing review to ensure it reflects your testamentary wishes and covers unexpected events. In this article, we look at some common misconceptions about Wills and estate planning and dispel some of the myths to put you on the right track to prepare an effective estate plan. I have a Will – isn’t that an...

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