Insolvent Trading Trusts: You can go your own way.

4 April, 2018

On 1 December 2022, McCabes’ Employment, Workplace Relations, and Safety group will be hosting a free Webinar to discuss the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022. Please feel free to register to attend by clicking here.

Reportedly, with Senate freshman David Pocock’s vote, the Federal Government now has the numbers in the Senate to pass its signature industrial relations legislation this side of Christmas – the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Proposed Bill).

When passed, the Proposed Bill will amend the Fair Work Act 2009 (Cth) (FW Act) in several key areas, which the Minister for Employment and Workplace Relations, Tony Burke, says are largely aimed at getting wages moving and improving the gender pay gap.

This latest legislative piece adds to changes already introduced by the Government in relation to paid family and domestic violence leave, parental leave and sexual harassment.

Key changes in the Proposed Bill include:

  • Two paths to multi-employer bargaining – supported bargaining and single interest multi-employer bargaining
  • Prohibiting pay secrecy clauses in employment contracts.
  • Limiting the use of fixed-term contracts.

Other changes include, introducing a statutory equal remuneration principle, amending the legislation to enable employees to access the Fair Work Commission where they have disputes over flexible working arrangements, introducing new grounds for discrimination including for breastfeeding, gender identity and intersex status, and abolishing the Australian Building and Construction Commission and the Registered Organisations Commission.

Multi-employer bargaining

The Proposed Bill includes two paths to multi-employer bargaining – supported bargaining and single interest multi-employer bargaining – aiming to assist workers who require support to bargain by increasing access to the renamed “supported bargaining stream” (previously the ‘low-paid bargaining stream’).

Workers that required support to bargain may include those in low paid occupations, government funded industries and female-dominated sectors, as well as employees with a disability, employees who are culturally and linguistically diverse and First Nations employees.

The more controversial of the changes relate to circumstances where employers have clearly identifiable common interests:

  • Permitting an employee bargaining representative to apply for a single interest employer authorisation to cover two or more employers, where there is majority support of employees.
  • Permitting an employee bargaining representative to vary a single interest employer authorisation to add or remove an employer’s name from the authorisation, where there is majority support of employees.
  • Permitting an employee organisation covered by an existing single interest employer agreement to apply for approval of a variation to the agreement to extend its coverage to a new employer and employees, provided certain criteria are satisfied, including majority support of employees.

The end to pay secrecy clauses

The Proposed Bill establishes a right for employees to disclose remuneration and associated terms.

It expressly prohibits pay secrecy clauses, enabling employees to confirm whether they are being remunerated fairly and comparable.

Further, Proposed Bill establishes that no adverse action can be taken against employees who discuss their remuneration with others.

Limiting the use of fixed term contracts

A fixed-term employee is hired under a fixed-term contract (that includes an expiry date for the employment) or for the duration of a specific project (where the employment comes to an end on completion of the project). This is an alternative to an ongoing employment arrangement.

The Proposed Bill renders it unlawful to enter a fixed-term contract in specific circumstances:

  • A fixed-term contract with a period of two or more years (including extensions).
  • On a fixed-term contract which may be extended more than once.

The change introduced by the Proposed Bill is designed to increase job security by limiting the use of fixed term contracts.

Paid family and domestic violence leave

The Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 was recently enacted. Commencing from 1 February 2023, this legislation amends the National Employment Standards in the FW Act, to introduce 10 days of paid family and domestic violence leave in a 12-month period, replacing the current entitlement of five days unpaid leave.

It will also extend the definition of ‘family and domestic violence’ to include conduct of a current or former intimate partner of an employee, or a member of an employee’s household.

This legislation passed largely as it was introduced, with minimal amendments being made in the Senate, with amendments largely dealing with how employers are to safeguard workers’ sensitive personal information.

For example, a new provision imposes obligations on employers in relation to payslips. Where an employer provides a payslip for a period where an employee has taken paid family and domestic violence leave, the employer must not include any information on the payslip as prescribed by the regulations in relation to paid family and domestic violence leave.

Employers must abide by amended Fair Work Regulations (still to be drafted) which may involve updating payroll systems. Additionally, employers may need to review their contractual arrangements and any leave policies that address family and domestic violence leave to ensure that they comply with the framework.

Parental leave policy changes

The Federal Government’s 2022-2023 budget includes an indication of the Government’s commitment to changing the paid parental leave scheme. However, legislation is still to be drafted and introduced – more to come.

The current Paid Parental Leave scheme includes two payments, Parental Leave Pay and Dad and Partner Pay.

The Budget indicates that, from 1 July 2023, both those payments are to be combined into one payment. Parents will be able to take 20 weeks of paid parental leave, which will increase by 2 weeks each July

until 2026. By 2026, parents will be eligible for 26 weeks of paid leave after the birth or adoption of their child, and full-time, part-time, casual, contract and self-employed workers may be eligible for the scheme.

The scheme is to be government funded and paid at the National Minimum Wage and can be received at the same time as employer-provided paid leave. However, families with a combined taxable income of more than $350,000 and individuals with a taxable income over $156,647 will be ineligible.

The updated scheme is aimed at providing families with greater flexibility to manage work and caring responsibilities, by removing primary and secondary carers, allowing parents to share parental leave pay with each other, and take parental leave days at the same time. Additionally, the leave can be taken in blocks or days at a time, within 2 years from the date of birth or adoption of their child.

Respect@Work Legislation Passed

Parliament passed new legislation on 28 November 2022 that incorporates seven recommendations from the Respect@Work report.

The key changes in the legislation are:

  • A positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation.
  • A new provision that prohibits conduct in the workplace that is hostile on the grounds of sex.
  • Gives the Australian Human Rights Commission (AHRC) new powers to issue compliance notices to employers who do not meet their obligations.
  • Enables representative actions before AHRC to proceed to the courts.
  • The federal public sector is now required to report against six gender equality indicators.
  • A Change to the object of the Sex Discrimination Act to state that it “seeks to achieve substantive equality between men and women”.

If you would like advice on the impact of the new industrial relations legislation, on your parental leave policy, on your duties under the Respect@Work Legislation or any further information on domestic violence leave, our Employment, Workplace Relations, and Safety group at McCabes Lawyers can assist.

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Litigation and Dispute Resolution

Canadian Court elevates thumbs-up emoji to signature status

In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract.   Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed.   Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph [18], Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)."   Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and   The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and   The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter.   Judgment At paragraph [36], Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship.   Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph [63]: "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest.   What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.

Published by Foez Dewan
29 August, 2023

Venues NSW ats Kerri Kane: Venues NSW successful in overturning a District Court decision

The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane [2023] NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty.  The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.

Published by Leighton Hawkes
18 August, 2023
Litigation and Dispute Resolution

Expert evidence – The letter of instruction and involvement of lawyers

The recent decision in New Aim Pty Ltd v Leung [2023] FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.

Published by Justin Pennay
10 August, 2023