David Lalic provides advice to the transport industry. He regularly advises owner/drivers in respect of contract disputes and has conducted litigation in respect of contracts. He also advises on the national regulations on driver fatigue.
David has been asked to contribute a regular article to Owner/Driver, a newspaper for those in the transport industry.
Action Towards Fairness
The Fair Work Act has seen changes implemented from January 1 which has implications for both employers and employees alike. David Lalic writes
SINCE JULY 1, 2009 employment law has been governed by The Fair Work Act 2009 (“the Act”). The new Act has made a number of important changes to employment law. In particular, changes have been made to unfair dismissal, the making of agreements and dispute resolution. In addition, it has introduced Fair Work Ombudsman.
While many changes have already taken place, some changes were implemented on January 1 this year.
ELIGIBILITY
Who is covered by the Act? A business will be covered by the Act if it is:
A constitutional corporation
An employer in the Australian Capital Territory, Northern Territory and Victoria
An employer covered by a Federal Award before 27 March, 2006, but which is not a constitutional corporation.
CHANGES MADE BY THE ACT
If you are covered by the Federal System, you are likely to be affected by the National Employment Standards and the introduction of Modern Awards, both of which came into force on January 1.
HOURS
The introduction of the National Employment Standards limits employees to working 38 hours per week plus “reasonable additional hours” averaged over 26 weeks.
This provision applies to both full time and casual employees.
When considering “reasonable additional hours” employers should have regard to the following factors:
Whether the additional hours are a risk to the employee’s health and safety
Whether it may cause problems for the employee’s personal circumstances
The needs of the business and the other staff members’ entitlements to receive overtime payments.
REDUNDANCY PAYMENTS
Further, under the National Employment Standards, all employees are entitled to receive redundancy payments if their employment is terminated for reasons of redundancy.
For highly paid employees (more than $108,300 as at August 2009) whose termination benefits may exceed this scale, it is possible to avoid the nasty surprise of a claim of statutory redundancy.
If this issue is relevant to you, make a note to seek legal advice.
FLEXIBLE ARRANGEMENTS AND PARENTAL LEAVE
The National Employment Standards provide for flexible working arrangements and 12 months unpaid parental leave to employees with more than 12 months continuous service or for long term causal employees. Either parent may apply for this parental leave. In our following article, we will address modern awards, contracting out of modern awards and termination of employees under modern awards.
FAIR WORK INFORMATION
Employees must provide each new employee with an Information Statement at the start of their employment. This can be downloaded from www.fairwork.gov.au
DAVID LALIC is a partner in Jackson Lalic Lawyers and specializes in providing legal advice to the transport industry. David Lalic can be contacted on 02 9262 1700 or dlalic@jacksonlalic.com.au
HEN IS A COMPANY INSOLVENT? - as appeared in the December 2009 edition of Owner/Driver
David Lalic is a partner in Jackson Lalic Layers and specializes in providing legal advice to the transport industry.
One of the defences for a director is if there were reasonable grounds to expect the company was solvent and would remain solvent even if it incurred the debt or incurred a range of debt including that particular debt.
Another defence is if the director had reasonable grounds to believe, and did believe, that competent and reliable person who was responsible for providing adequate information about the company’s solvency was fulfilling that responsibility.
Directors can also defend themselves on the basis that because of illness or other good reason they did not take part in the management of the company at that time.
Finally, a director can show they took all reasonable steps to prevent the company incurring the debt. Matters that may be considered when determining this defence is any action the director took to appoint an administrator to the company, when that action was taken and the results of that action.
Generally, a company is classed as insolvent if it is unable to pay all its debts when they fall due.
The company’s ability to pay its debts should be determined by reference to the facts of each case.
A member of issues must be taken into consideration, such as the company’s assets and liabilities as a whole. This includes the company’s ability to collect debts owed to it and whether arrangements have been negotiated with creditors to defer payment of outstanding fees.
The company must also consider whether additional money can realistically be raised in a timely manner from the introduction of additional share capital or from future borrowings.
Companies should also look at whether there are surplus assets that can be sold in a relatively short period of time to help pay debts without damaging the company’s ability to trade.
Anyone wishing to have more detailed in formation about the regulations should contact David Lalic at Jackson Lalic Lawyers.
Unfair dismissal Laws from July 1 - As appeared in Owner/Driver Magazine January 2009 issue
A new industrial relations system will be introduced in 2010, with unfair dismissal rules to take effect this year, writes David Lilac
The federal government as it promised in its election campaign, has announced a new Industrial Relations System that will commence on January 1, 2010.The rules in relation to unfair dismissal will however take effect from the July, 2009. All employees will be able to make a claim for unfair dismissal provided they have worked in their jobs for a qualifying period.
In the case of business with fewer than 15 employees the qualifying period is 12 months, in businesses with 14 or more employees the qualifying period is six months. Casual employees who have been employed on a regular basis are not excluded, as long as they have worked for the qualifying period.
Any claim for wrongful dismissal must be made to Fair Work Australia within seven days of termination. This time period can be extended if Fair Work Australia is satisfied there are exceptional circumstances. Fair Work Australia can gather information about the claim by phone or in writing from the employer and the employee.
Where there is a complete disagreement Fair Work Australia must either hold an informal face-to-face conference or hearing. Legal representation will only be allowed if Fair Work Australia deems it appropriate that both parties can have non-legal representation.
The preferred remedy in a complaint is for the reinstalment of the worker. However, financial compensation can be ordered. Businesses with fewer than 15 employees can avoid unfair dismissal claims by complying with the Small Business Fair Dismissal Code. If Fair Work Australia is satisfied that the business complies with the code it will not look any further.
Non-compliance will not automatically mean that the dismissal was unfair. Fair Work Australia will consider whether the dismissal was harsh, unjust or unreasonable.
David Lalic is a partner at Jackson Lalic Lawyers and can be reached on 02 9262 1770.
Credit Where Due - As appeared in Owner/Driver Magazine December 2008 issue
The rules for businesses going into voluntary administration have changed, David Lalic writes
Everyone in business at some time comes in contact with companies that have appointed a voluntary administrator. The directors of a company, when faced with difficulties with creditors, can appoint a voluntary administrator to give them time to sort out things. This will allow them to hopefully resume their business under their own control when administration ends.
As a business operator you may also have to deal with an administrator who has been appointed by
one of the creditors of business. In both of these scenarios it is important to know what the rules
are and where you stand.
NEW RULES
Early in 2008, changes were made as to how voluntary administration are conducted. One first things that happens when a voluntary administrator is appointed is a meeting of creditors is called to consider setting up a committee of the creditors to oversee the administration, or to appoint an alternative administrator
In the past this had to be done five business days after the appointment. This gave creditors very little time to receive notice of the meeting or even to know what was going on. Under the new rules this meeting is to be held eight business days after the appointment of the administrator. Ideally extra time will be enough to allow creditors to seek advice, protect their position and for the administrator to prepare before the meeting.
SECOND MEETING
The second meeting of creditors in the administration is an important one. At this meeting the decision is made on wether the administration should end or liquidator should be appointed. It is also possible at this meeting for the creditors to agree to an arrangement as to how the debts will be paid. At the end of the arrangement the company returns to the original owners.
If everything has been sorted out before the second meeting it might be that the administration simply ends. Before the changes in the rules this important meeting had to be held a maximum of 28 days following the appointment of the administrator. This gave very little time for the administrator to issue his detailed export to the creditors as to what his opinion was as to the best options. This report under the old rules had to be despatched to the creditors seven days prior to the meeting.
The new rules require the second meeting to be help within approximately 34 days of the appointment of the administrator.
DEBT SECURITY
Sometimes people have security for their debts. Under the old rules secured creditors only had 10 days to appoint a receiver to secure property and try to recover on the secured property;this has been extended to 13 days.
As we are entering very uncertain time it is important everyone in business understand the new rules and take advantage of them to grow and protect their business.
David Lalic is a partner at Jackson Lalic Lawyers and can be reached on 02 9262 1770.
The changes ring in - a new set of fatigue regulations means a new set of headaches for truckies.
DRIVER FATIGUE and its management has been debated for some years. Self regulation has not balanced the competing priorities of the owners and the drivers. Owners find themselves under increasing pressure with delivery targets and the drivers risk injury.
Part of the answer to the problem would be the introduction of a National Safe Rates Scheme as promoted by the Transport Workers Union.
The Federal Government has responded by introducing a set of regulations, under the Act, whose purpose is to provide for safe fatigue management of heavy vehicle drivers while they are driving on the road. We are yet to see if the government's response is effective to deal with the problem.
This is the first of a series of articles that will outline the regulations, how they impact on the owner and what the rights of the owner are under the legislation. Later articles will deal with particular sections in more detail.
The Act not only applies to drivers, but to persons whose activities influence the conduct of drivers in such a way as to affect the drivers' fatigue when driving on the road.
The regulations set out the duties to avoid or prevent drivers from driving heavy vehicles while they are fatigued. Fatigue and 'impaired by fatigue' are defined.
Not only do employers have obligations to protect drivers but schedulers, consignors, consignees, and loading managers, also have duties. For example; "the consignor or consignee each must take reasonable steps to ensure that the terms of consignment, for example delivery times, will not result in, encourage or provide an incentive for the driver to:
drive while impaired by fatigue; or
drive while in breach of his or her work/rest hours option; or
drive in breach of another law in order to avoid driving while impaired by fatigue while in
breach of his or her work/rest hours option"
The most important concept in the set of regulations is accreditation. Without accreditation, standard hours apply when determining rest. Under the standard hours rest provisions, in any period of five-and-a-half hours there must be 15 minutes of continuous rest for a solo driver.
In the case of a solo driver where there is BFM accreditation, the period changes to six-and-a-quarterhours and the rest period is 15 continuous minutes.
In the case of an AFM accredited driver, the first period of time is extended to seven hours with a 45 minute rest.
There are many other time periods and obligatory rest periods that vary between accredited heavy vehicles and those that do not have accreditation.
The regulations set out what must be done to gain accreditation. Application must be made and evidence given of the systems that are in place. Because of the advantages of having AFM accreditation, the requirements are more strict. For an AFM accreditation, for example, the risks involved with working under the proposed work and rest hours limits and the proposed countermeasures that are designed to manage those risks, must be set out.
In the regulations there are provisions for the review of decisions that relate to accreditation.
Compliance with the regulations will be in the hands of authorised officers or the police. A driver can be directed to have a rest break if they have not had one at the time of inspection or the driver can be directed not to work for a specified period of time if it is believed they are fatigued.
There are financial penalties ranging from $1,000 to $10,000 plus $1,000 per 15 minute breach.
Anyone wishing to have more detailed information about the regulations before the publication of future articles and in particular the rules relating to accreditation, should contact David Lalic at Jackson Lalic Lawyers.
Unfair Contracts- as appeared in the June 2008 edition of Owner/Driver
Owner-drivers might find themselves in a dispute over their contract. For Example, Andrew Smith (not his real name) spent approximately $280,000 buying a truck and trailer because he was promised ongoing work worth approximately $2,000 per day. The ongoing contract was cancelled and the source of income lost. Mr Smith was left with an expensive truck and trailer and no work.
This is a classic example of an unfair contract. An application to vary an unfair contract can be made by a contractor or subcontractor working in the transport industry.
Contractors and subcontractors employed in the transport industry in NSW can ask the NSW industrial Relations Commission ("Commission") to vary contracts or arrangements, whether oral or in writing, for services provided.
Section 106 of the Industrial Relations Act of 1996 NSW ("the Act") gives contractors and subcontractors the right to vary any contract or arrangement under which they perform work if the contract is found to be unfair, harsh or unconscionable or against public interest. Section 276 of the Industrial Relations Act (Queensland) also enables the Queensland Industrial Relations Commission to declare void or vary contracts which are declared to be unfair.
The Commissions powers under the unfair contract laws are extremely wide and the commission has the power to review contracts or arrangements whether the parties are in breach of the contracts or arrangements or not. The court also has the power to order that money be paid to the contractor or subcontractor.
In the past, the Commission has been prepared to vary unfair contracts by extending periods of notice, severance payments on redundancy and working conditions
David Lalic is a partner at Jackson Lalic Lawyers and specializes in providing legal advice to the transport industry. David Lalic can be contacted on (02) 9262 1770 or dlalic@jacksonlalic.com.au
