January 14, 2012

Beware – the Work Health and Safety Act has Commenced

1 January 2012 saw the commencement of the harmonised Work Health and Safety Act. To date, the new legislation to implement a national approach to workplace health and safety has been adopted by the Commonwealth, New South Wales, Queensland, Northern Territory and ACT governments.

The Work Health & Safety (WHS) legislation requires those persons who have a duty to ensure health and safety in the workplace to manage, or at least minimise, risks to workers so far as is reasonably practicable.

This duty applies to the person who is conducting a business or undertaking (a PCBU). A PCBU includes:

- employers

- corporations

- associations

- partnerships

- sole traders

- volunteer organisations that employ workers

The PCBU must ensure the health and safety of workers, and also has a duty of care in relation to customers and visitors to the workplace.

Workers include employees, volunteers, labour hire staff, apprentices, contractors, sub-contractors and work experience students. Workers have a duty to take reasonable care for their own safety whilst at work, and to ensure that their actions in the workplace do not detrimentally impact on the health and safety of others.

In order to satisfy the new legislative requirements, PCBUs should develop work health and safety policies and procedures. However developing a policy will not of itself ensure compliance with the WHS Act – PCBUs must ensure that workers are trained in work health & safety matters and comply with the strategies adopted by the PCBU.

Is your business compliant with the WHS legislation?

The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues from provision of written policies, advice regarding termination of employees and redundancy, contracts of employment and warning letters, to the application of the Modern Awards, because Helping You is Our Business.

Click here for more information on Rebecca Greenland.

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Filed under Employment Law, Weekly Columns

January 7, 2012

Illegal Downloading

There is a great deal of illegal downloading of copyright material via the internet worldwide.  It has been going on for years. The copyright owners are in a terrific flap about it. They call it “theft”.  There will be a great deal less of it, in Australia at least, if  the copyright owners are successful in their appeal to the High Court in the case of Roadshow Films Pty Limited v iiNet Limited.

Films and other works the subject of copyright can be downloaded through unauthorised file sharing on the BIT Torrent system, the operation of which is pretty technical but the effect of which is that anyone with a computer and access to the internet can download and enjoy all manner of copyright protected works without paying a cent other than the subscription fee to the internet service provider.

Copyright owners are extremely unhappy about illegal downloading. This is understandable. Hollywood production houses pay millions of dollars for the rights to eg the latest Harry Potter and millions more to turn those rights into a film and bring it to the screen only to lose what countless 14 year olds would have paid to watch the movie at the cinema if they had not downloaded it illegally and watched it at home on their parents’ flat screen, possibly with surround sound, while eating popcorn and a packet of Jaffas.

In Roadshow Films, the Australian Federation Against Copyright Theft  argued that iiNet  was liable for the copyright infringement by its customers when they illegally downloaded films because iiNet had authorised the infringement.  The complicated fortress of copyright and related legislation prohibits authorising infringement. iiNet knew its services were being used for downloading and did nothing to stop it by terminating accounts that had been identified to it. iiNet  argued that it did not give express authority or invite its customers to do acts in breach of copyright. iiNet’s arguement has been successful so far but the case has gone on appeal from the full bench of the Federal Court to the High Court. Plainly, there is a lot of money at stake for the copyright owners.

If  the High Court makes internet service providers liable for illegal downloading, it will come to a crashing halt. If not, rumour has it that pirate hunters for the copyright owners can use the aptly named “bot crawler” to sneak through the back doors of illegal downloaders’ computers to catch them at it. Some may think it unacceptable to commit a crime to detect a crime. Watch this space because Helping You is Our Business.

Click here for more information on Mark Johnson.

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December 31, 2011

Your New Years Resolution: Plan your Estate

As the year draws to a close, it is timely to commit to new goals for the coming year. As you spend time with family and loved ones this Christmas, we encourage you to consider estate planning as one of your goals for the coming year.

This could mean one of two things. It could mean making a will for the first time which is tailored to suit your personal and financial circumstances. Or updating your current will in case your circumstances have changed since the last time you made your will.  

One recent case serves as a timely reminder that just as life does not standstill nor should your will be locked away in a drawer and forgotten.  Your will needs to be reviewed and updated regularly to ensure it carries out your wishes.  

The Deceased made a Will in 1959. She died some 40 years later. The estate of the deceased consisted principally of a house and a bank account.

The applicant in this case was the grandson of the deceased (the Plaintiff).

There was a very good relationship between the Plaintiff and his grandmother.

Having been left out of his grandmother’s will, the plaintiff claimed that for a period of twelve years he resided in the same house as the Deceased, that for at least the last four years of her life he was the principal carer of the Deceased, looking after every aspect of her daily routine, recognised by him receiving a carer’s pension. It was submitted that that care was undertaken at a considerable sacrifice to the Plaintiff, who has been subsequently disadvantaged. Further, that in consequence of the efforts and activities of the Plaintiff there was a substantial contribution by him to the conservation of the assets which comprise the estate of the Deceased. The Plaintiff submitted that those contributions to the personal and financial welfare of the Deceased were such as would cause him to be generally regarded as a natural object of the testamentary recognition of the Deceased.

Taking into account all of the circumstances of the case, the Court agreed.

In so doing the Court emphasised that an order for provision is not made as a reward for good conduct. Neither is such an order withheld as punishment for perceived bad conduct on the part of an applicant.

As one of your goals for 2012, we encourage you to put your affairs in order for the benefit of your loved ones and for your own peace of mind. At Everingham Solomons we have the expertise to assist you with all matters relating to Estate Planning, because Helping You is Our Business.

Click here for more information on Lesley McDonnell

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December 24, 2011

Drink Drivers Don’t Stop for Christmas

With the festive season upon us it is important to be mindful of the laws relating to drink driving. 

With 70 percent of drink drivers convicted in the local court having no previous criminal history, it seems clear that this is an offence which often catches law abiding people off guard.

It is important to remember that the limits of blood alcohol content (BAC) differ for different classes of driver.

The limit for Learner and Provisional drivers is zero.  For drivers of public and heavy vehicles the BAC limit is 0.02.  For ordinary licence holders the limit is 0.05.

Passengers acting as ‘supervisors’ to a learner driver can also be charged with exceeding the prescribed limit of alcohol content whilst acting as a supervisor.  Being full licence holders, the supervising passenger must be at a BAC below 0.05.  Such a case received some press coverage recently. 

One mistake which often causes people to come before the local Magistrate, is a failure to monitor the number of standard drinks that have been consumed over a period.  It is quite common for drivers to be charged with exceeding the prescribed limit of blood alcohol many hours or even the day after drinking.

The general rule of thumb to follow is that the body cleanses itself of one ‘standard drink’ each hour, although this is subject to a number of factors including the drinkers age, sex, weight and the like.

When calculating how long it will be before you are able to drive it is important to remember that each glass consumed by the drinker is not necessarily one ‘standard drink’.  A ‘standard drink’ in Australia is defined as 12.5ml of pure alcohol.  Many commercialized products hold more than one ‘standard drink’ in a single serving, so it is important to take note of the number of ‘standard drinks’ consumed and not, the number of cans or glasses of the beverage.

Take for example one ‘stubbie’ of full strength beer which typically contains 17.5 ml of alcohol or 1.4 standard drinks, but can vary depending on the brand and type of beer.  Although a drinker might consume only two stubbies over a one hour period  and expect to be able to legally drive, in fact they have consumed almost three ‘standard drinks’ and could be well above the legal limit of alcohol prescribed for driving.

It is important to note that the above calculations are general in nature.  The way in which alcohol is absorbed by the body varies greatly between individuals and the advice provided above should not be relied on to calculate or estimate your BAC.  The most certain way to avoid drink driving offences is to refrain from driving if you have consumed any alcohol whatsoever.

If you have any enquiries relating to drink driving please call Everingham Solomons Solicitors because Helping You is Our Business.

Click here for more information on Clint Coles.

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December 17, 2011

Appropriate Behaviour at End of Year Events

With holidays around the corner, it’s not surprising that many employees tend to lose their inhibitions at work-related end of year celebrations.

Employer Responsibilities

 As part of their obligations, and to avoid the litigious pitfalls due to an employee’s inappropriate conduct, employers must take reasonable steps to mitigate their legal exposure and to avoid inappropriate workplace behaviour at the Christmas party, or any other work function 

Practical Steps for Employers

Ten basic precautions employers can take include the following:

  1. Ensure all policies and procedures are clear and that they are understood by all employees. A written reminder just prior to the function may assist to ensure employees are aware of the company’s expectations with regard to their behaviour.
  2. Monitor the consumption of alcohol and ensure the venue ceases service if necessary. Also provide non-alcoholic beverages.
  3. Have a designated senior manager who does not drink at the function to increase the level of vigilance and set a ‘lead by example’ approach.
  4. Where there is alcohol, there should also be food. People become inebriated faster when consuming alcohol on an empty stomach.
  5. Enquire about and, if reasonable, provide safe transportation arrangements from the venue, or make sure employees have suitable arrangements in place.
  6. Make it clear when the event ends and remind employees that any ‘kick-on’ parties are subject to the same appropriate behaviour expectations.
  7. Ensure that the entertainment at the event is not considered offensive.
  8. Set guidelines for gift exchanges such as ‘Secret Santa’ to ensure they are not offensive, and set a dress code for the event to maintain the level of professionalism.
  9. Should rumours circulate address them promptly, regardless of whether a formal complaint has been made.
  10. If a complaint is made, investigate it immediately and thoroughly.

Finally remember, the festive season is the time to have some fun and reminisce on the year that was.

The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues because Helping You is Our Business.

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December 10, 2011

Sale of Goods – Right of Stoppage after Delivery

What rights does a Vendor have to reclaim goods sold after delivery where the Purchaser becomes insolvent and is unable to pay?

In a recent Supreme Court decision of Gilgandra Marketing Co-Operative Limited v Australian Commodities and Merchandise Pty Limited and Others the parties entered into Contracts for the sale of a large quantity of wheat which was supplied from the Narrabri area to the Sydney container terminal and then shipped to Bangladesh.

At the time of litigation, the wheat was at the port in Bangladesh but the purchaser had not taken physical delivery.

The seller instituted proceedings seeking among other things a right to take possession of the wheat based on a claim that the title to the goods had not passed to the Purchaser because the Purchaser had not taken actual delivery of the wheat from the carrier.

The Judge held that under the specific Contract terms, title in the wheat passed to the purchaser on the delivery of the wheat to the Sydney terminal and that was deemed to be delivery to the Buyer at that time.

The Vendor also argued that under Section 42(1)(b) and (c) of the Sale of Goods Act (NSW) that where the Purchaser becomes insolvent, the unpaid vendor has a right of stopping the goods in transit even if the title in the goods may have passed to the purchaser.

The Court agreed with this argument and the Vendor was entitled to re-take possession of the goods because they were still in the course of transit.

It is always worth seeking legal advice regarding your circumstances, you might be surprised..

At Everingham Solomons we have the experience to help you because Helping You is Our Business.

Click here for more information on Terry Robinson

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December 3, 2011

Second Marriages and Old Age – Do They Mix?

Your first marriage did not succeed but you have now found a partner with whom you want to share the remainder of your life with. You both have children from a previous marriage but no children together. Your only asset is the matrimonial home and life is pretty comfortable.

What happens when either you or your spouse need to leave the matrimonial home due to ill health? Who is going to pay the costs when the cash is tied up in the matrimonial home? What happens when adult children become concerned for the welfare of their parent, not the marriage?

This was a question for the Full Court of the Family Court to determine in the matter of Stanford & Stanford [2011] Fam CAFC 208 after the children appeared on behalf of their parents.  The facts of this case were that the husband and wife were aged 87 and 89 respectfully. They had been married for 40 years, each having been married previously and each having adult children.

The wife was the husband’s carer for a number of years in the matrimonial home after he suffered 2 strokes. On 30 December 2008, the wife suffered a stroke herself and had to remain in full time residential care. The husband had recovered well from his strokes and he was able to remain in the former matrimonial home. He visited his wife three times per week and placed $40,000 into a trust account for her use.  

The parties still were married but separated due to the ill health of the wife. The wife was in a nursing home which was paid for by her pension however her children were not happy with the level of care that she was receiving. Her children wanted to move the wife into a nursing home that required a $300,000 bond. The difficulty was that all funds of the wife were held in the matrimonial home and the husband did not want to sell as he was still able to live there.

In that regard, the Full Court of the Family Court had to decide whether it had the jurisdiction and the power to order that assets be divided when the marriage had not ended.

After much consideration the Full Court found that it did have the power to make Orders in circumstances whereby the elements of the marriage were gone despite the parties still being married. The Court outlined that it had to be just and equitable to make such an Order to ensure that both parties had the adequate support and financial provisions.

This is a significant case for those couples who have entered into second marriages and their funds have intermingled. Adult children may often seek to be involved to ensure that what they think is the best for their parent even if it may be to the detriment of that parent’s spouse.

If you have entered into a second marriage and want to protect your assets, or make provisions in the future for events such as above, please contact us to make an appointment because at Everingham Solomons we have the experience and expertise to assist you because Helping You is Our Business

Click here for more information on Sara Burnheim.

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November 25, 2011

Put A Halt To Sexual Harassment In The Workplace

No-one, man or woman, should be subject to harassment of a sexual nature in any circumstances and particularly not in the workplace.

Whilst notions of equality and commonsense should dictate that sexual advances in the work environment are not condoned, unfortunately sexual harassment by both employers and co-workers remains problematic in Australian businesses.

Obviously the emotional and health effects of sexual harassment impact severely on the victim. But rarely do employers expect a sexual harassment claim to affect their business.

Employers need to be aware of the ramifications of an employee bringing a claim for sexual harassment, and should take positive steps to prevent an incident occurring in the workplace.

It is vital that all businesses have a harassment policy in place, preferably in conjunction with anti-discrimination and equal opportunity strategies.

Employers need to ensure that not only is a policy in place, but that complaints regarding sexual or any other form of discrimination are dealt with in a confidential and responsive manner, and that all grievances raised are adequately addressed.

Unfortunately many instances of sexual harassment result in the victim’s employment being unfairly terminated. In such a situation, the employer can expect OH&S implications to flow from a failure to create a safe working environment, together with an unfair dismissal or unlawful termination claim being filed by the employee.

A breach of the general protections grounds under the Fair Work Act (which include sexual discrimination and filing of a complaint) can result in the employee being awarded compensation, together with the employer being fined up to $33,000 for a corporation or $6,600 for an individual, for each offence.

It is therefore important that employers have the necessary written policies in place to comply with their legislative obligations.

The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues from provision of written policies, advice regarding termination of employees and redundancy, contracts of employment and warning letters, to the application of the Modern Awards, because Helping You is Our Business.

Click here for more information on Rebecca Greenland.

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November 19, 2011

Sir Adrian Solomons Memorial Law Bursary Applications are Still Being Accepted

Everingham Solomons are still accepting applications from Tamworth, Quirindi, Gunnedah or Manilla students for the Sir Adrian Solomons Memorial Law Bursary. 

The Sir Adrian Solomons Memorial Law Bursary was first given in 1998.  It provides financial assistance for the successful applicant during their first year as well as an opportunity to gain valuable work experience in our offices periodically throughout the duration of their studies.

The Principals of local High Schools have been contacted and advised of the correct format for submitting applications.  Interested students should liaise with the Principal or Careers Advisor of their school, who will assist them in making a formal application for this Bursary.

We emphasise that the selection process does not depend solely on academic merit.  We appreciate that students come from a variety of backgrounds and accordingly the selection process concentrates on the attributes of the student as a whole, rather than solely academic achievement.

The Bursary has gained widespread interest since its inception and continues to provide a valuable opportunity for current Year 12 students wishing to pursue a legal career.

Everingham Solomons view the Bursary as a continuing commitment to young people in the communities of Tamworth, Quirindi, Manilla and Gunnedah and we encourage interested students to apply.  

Applications will be accepted until 30 November, 2011 with interviews conducted during December.  A final decision as to the recipient is made in January once university acceptances are confirmed.

Helping You is Our Business

Click here for more information on the Sir Adrian Solomons Law Bursary.

Click here for more information on Terry Broomfield.

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November 12, 2011

Specialist Accreditation

The Law Society of New South Wales operates the Specialist Accreditation Scheme to help the general public find Solicitors who have proven expertise in particular areas of the law.

Before gaining accreditation a Solicitor seeking Specialist Accreditation must pass rigorous assessments in communication, problem solving, client relations and the law in the relevant area.

A successful applicant for Specialist Accreditation is also required to commit to ongoing mandatory continuing legal education in the specialty area which means that the Specialist must undertake twice the mandatory continuing legal education of a non-accredited Solicitor.

In the end result, people dealing with Accredited Specialists can be confident that they are dealing with a person of proven expertise in the particular field who is also required to continually update and maintain their skills.

The Specialist Accreditation Scheme commenced in 1992 and has been actively supported by Everingham Solomons since that time. At one stage Everingham Solomons was the only firm in New South Wales of more than four Principals where all the Principals were Accredited Specialists in various areas of the law.

With that background, the Directors of Everingham Solomons are very pleased to announce that Jennifer Blissett has been awarded accreditation in the area of Family Law. Jennifer becomes the sixth of the current solicitors of Everingham Solomons to achieve Specialist Accreditation.

Jennifer joined Everingham Solomons in 1999 and is the Director in charge of the firm’s Family Law section. She practices extensively in the areas of-

  • Property division and settlements
  • Parenting issues
  • Care arrangements for children
  • Divorce
  • De facto relationships
  • Child support
  • Spousal maintenance

At Everingham Solomons we can offer a range of Accredited Specialists to meet your specific legal needs.

BecauseHelping You is Our Business.

Click here for more information on Ken Sorrenson.

Click here for more information on Jennifer Blissett.

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