LAW COUNCIL president, Jacoba Brasch QC, has come out in support of the move by the state and federal Treasurers to focus together on an agreed approach to electronic legal documentation processes and systems.

“The Law Council of Australia is fully supportive of today’s decision by Commonwealth, State and Territory Treasurers to work together towards a common approach for electronic document execution," Dr Brasch said. 

"During the COVID-19 pandemic, the electronic execution of documents was a game changer, especially in the commercial law space. It will remain a game changer by offering real potential for trade and commerce to flow in a more efficient and cost-effective way.

"For the upheaval that was 2020, there have been positive outcomes in the service of document execution that will have long lasting positive outcomes for clients. However, the need for consistency across the states and territories is paramount, which is why today’s announcement is crucial.

"The Law Council looks forward to working with the government to ensure that fidelity and veracity of the process for the execution of electronic documents is maintained," Dr Brasch said.

"The Law Council supports further investigation into what additional permanent improvements can be made as a result of technology which may further improve the follow of commerce in this country, efficient service delivery and cost effectiveness for clients.”

 

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Australian Small Business and Family Enterprise Ombudsman, Bruce Billson said significant reforms to the Franchising Code of Conduct announced by the Australian Government yesterday will help level the playing field across the franchising sector.

Mr Billson said the reforms to the Code, which come into effect from July 1, 2021, "will go a long way to addressing the power imbalances that often exist between franchisees and franchisors, particularly when disputes arise".

“These reforms are an important step towards getting the balance right for our small and family businesses in the franchising sector,” Mr Billson said.

“In particular, providing greater powers to my office to appoint an independent arbitrator when both parties agree, will help resolve disputes in a cost-effective and timely manner, while crucially protecting business relationships. This supports a no-surprises, collaborative and mutually respectful commercial relationship between franchisees and franchisors.

“Allowing my office to facilitate group mediation when several franchisees are in a similar dispute with the same franchisor, is another critical reform that will help restore confidence in this sector. 

“The changes to the Code mean prospective and current franchisees will be better armed with vital information needed to run their business," Mr Billson said.

“This includes more transparency around the marketing fund, with an annual financial statement which sets out meaningful information regarding expenditure. Greater visibility around rebates and leasing arrangements will be achieved by these reforms.

“The new mandatory Franchise Disclosure Registry, which is scheduled for release in early 2022, is key to providing prospective franchisees with vital information needed prior to entering a binding franchise agreement.

“Over the past six months my office has fielded over 240 calls from franchisees seeking information regarding disputes under the Franchising Code of Conduct," he said.

“This demonstrates just how critically important it is for prospective franchisees to know exactly what they are getting into before signing on the dotted line.

“Ultimately these much-needed reforms to the Franchising Code of Conduct will play an important role in making Australia the best place to start, grow and transform a business.”

Businesses involved in a franchise dispute under the Code can contact ASBFEO for assistance on 1300 650 460 or email This email address is being protected from spambots. You need JavaScript enabled to view it..

www.asbfeo.gov.au

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FINANCIAL RIGHTS Legal Centre is calling on the Australian Government to respect the rights of joint bank account holders to control their own data.

Financial Rights chief executive officer Karen Cox said the government should rescind its proposal to automatically opt Australians in to data sharing under the Consumer Data Right (CDR) and Open Banking regimes.

These are the key recommendations of an important joint submission to the Australian Treasury led by Financial Rights. Ms Cox said the government’s proposed “opt out regime” for Open Banking data sharing for joint account holders fundamentally undermines the right to affirmative consent.

“Australians want a safe and secure data environment that puts their privacy ahead of the increasingly rapacious desires of industry,” Ms Cox said.

“Treasury’s proposal undermines the privacy rights of citizens and subverts the Open Banking regime’s own requirements to provide Australians with the ability to voluntarily and expressly consent to the sharing of their data with other parties.” 

The Treasury proposal means joint account holders would be automatically opted in to sharing their personal financial data if one account holder chooses to engage with Open Banking.

Australians will only be able to prevent such sharing if they engage and turn it off prior to the sharing or stop the process after it has occurred.

“This proposal contradicts basic privacy principles already set out in the Consumer Data Right,” Ms Cox said.

“It runs counter to the Australian Competition and Consumer Commission’s (ACCC) recommendations to strengthen consent requirements and puts the business interests of the FinTech sector ahead of the need to protect consumers’ privacy and security.

“It also poses significant risks to vulnerable people facing financial, elder or domestic abuse.”

Ms Cox said the proposal would undermine consumer trust in the CDR before it even gets going.

“Consumers – be they joint account holder or not – should be free to decide how much or how little of their information they wish to share in exchange for the use of Open Banking services.”

The submission: https://financialrights.org.au/submission/

 

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THE Australian Small Business and Family Enterprise Ombudsman Bruce Billson said small businesses in dispute with the ATO will get a fairer go, under new rules proposed by the Australian Government.

Mr Billson welcomed the pre-Budget announcement, giving the Administrative Appeals Tribunal (AAT) greater powers to pause or change debt recovery actions applying to a small business in dispute with the ATO.

“Small businesses disputing an ATO debt in the AAT will get a fairer go by stopping the ATO from relentlessly pushing on with debt recovery actions against a small business, while the case is being heard,” Mr Billson said. 

“I commend the government which has acted quickly to implement a key recommendation in our recently released report: A tax system that works for small business which will allow small businesses to pause ATO debt recovery actions until their case is resolved by the AAT.

“Currently, small businesses are only able to pause or modify ATO debt recovery actions through the court system. This can be prohibitively expensive and time consuming for a small business," Mr Billson said.

“Under the proposed changes, small businesses can save thousands of dollars in legal fees, not to mention up to two months waiting for a ruling.

“In line with the recommendations in our report, the AAT will be able to pause or modify any ATO debt recovery actions, such as garnishee notices, interest charges and other penalties until the dispute is resolved by the AAT.

“It means that rather than spending time and money fighting in court, small business owners can get on with what they do best – running and growing their business.

“These proposed changes follow the ATO’s decision to turn its small business independent review service into a permanent offering.

“ASBFEO’s tax concierge service and ongoing advocacy work has led to substantial tax administration improvements for SMEs, with leadership from ATO Deputy Commissioner Small Business Deborah Jenkins and government support.

“Collectively, these changes align with ASBFEO’s vision of a tax system that works for the small business sector, so businesses can achieve greater productivity, return to profitability and grow employment.”

The new powers for the AAT will be available following Royal Assent of the legislation.

Small businesses engaged in a tax dispute are encouraged to contact ASBFEO for assistance on 1300 650 460 or email This email address is being protected from spambots. You need JavaScript enabled to view it.

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By Riley Anastasio >>

Following the decision of Workpac Pty Ltd v Rossato (Rossato) in 2020, employers were left with uncertainty regarding their casual workforce, with concerns of misclassification and ‘double dipping’.

Thankfully for employers, on March 22, 2021, new legislation was passed that significantly amended the casual employment regime.

The legislation includes a definition of ‘casual employee’ and expands upon already existing casual conversion rights, including an obligation on employers to offer permanent employment in certain circumstances. 

What is a casual employee?

There is now a statutory definition of a casual employee. A casual employee is an employee who:

  • has been given an offer of employment on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work (CasualOffer);
  • accepts the offer on the above basis.

The legislation includes an exhaustive list of factors that must be considered when determining whether, at the time the Casual Offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work. These include, but are not limited to whether:

  • the employer can elect to offer work and whether the person can elect to accept or reject work;
  • the person will work according to the needs of the employer;
  • the person will be entitled to a casual loading or specific rate of pay for casual employees.

Importantly, the question of whether a person is a casual employee is to be assessed on the basis of the offer of employment and acceptance of that offer, not on the basis of any subsequent conduct of either party.

This arguably reverses the approach taken in Rossato, which assessed casual employment based on the conduct of the parties during the employment.

Changes to casual conversion

The Bill also introduces an obligation to offer casual employees permanent employment when certain circumstances are met. This will apply unless the employer can show there are ‘reasonable grounds’ not to make the offer.

An employer (other than a small business employer) must offer a casual employee conversion to either part-time or full-time employment if:

  • the employee has been employed for a period of 12 months;
  • during at least the last six months, the employee has worked a regular pattern of hours on an ongoing basis that, without significant adjustment, the employee could continue to work as a full-time or part-time employee.

Employers will be obliged to make a casual conversion offer, in the form prescribed, unless ‘reasonable grounds’ exist for not making the offer, based on facts that are known, or reasonably foreseeable. Reasonable grounds for deciding not to make an offer include, but are not limited to:

  • in the period of 12 months after the time of deciding not to make the offer:
  • the employee’s position will cease to exist;
  • the hours of work that the employee is required to perform will be significantly reduced;
  • there will be a significant change in:
  • the days on which the employee’s hours of work are required to be performed
  • the times at which the employee’s hours of work are required to be performed
  • and this cannot be accommodated due to the employee’s availability
  • making the offer would not comply with a recruitment or selection process required by or under law of the Commonwealth or a state or territory.

The Bill also gives casual employees a residual right to request conversion to permanent employment in circumstances where they have been employed for at least 12 months and have worked a regular patter of hours on an ongoing basis in the last six months that, without significant adjustment, they could continue to work as a full time or part-time employee.

Employers can only refuse a request for casual conversion made by an employee where ‘reasonable grounds’ for the refusal exist. The factors relevant to whether reasonable grounds exist are the same as the ones used to determine whether an employer must make an offer to casual employees to convert.

If an offer is accepted by an employee or granted by an employer, the employer must, within 21 days, notify the employee of:

  • whether they are converting to full-time or part-time employment;
  • their hours of work after the conversion;
  • the day the conversion will take effect.

Disputes

There is a new dispute resolution mechanism for disputes regarding an employer’s obligation to offer casual conversion or an employee’s right to request casual conversion. The dispute resolution mechanism may be contained in:

  • a fair work instrument that applies to the employee (e.g. an enterprise agreement);
  • the employee’s contract of employment;
  • another written agreement between the employer and employee.

If none of these mechanisms apply to the parties and the dispute could not be resolved at a workplace level, they may refer their dispute to the Fair Work Commission.

Casual employment information statement

Employers must give each casual employee a Casual Employment Information Statement before, or as soon as practicable after, the employee starts employment as a casual employee.

The Fair Work Ombudsman has been tasked with preparing a ‘Casual Employment Information Statement’, containing information about casual employment and offers and requests for casual conversion.

Casual loadings

In lieu of accruing permanent entitlements (e.g. annual leave and personal leave), casual employees are paid a separately identifiable amount, called a ‘casual loading’.

Labelled as potential ‘double dipping’, courts in recent cases have, when finding an employee is not a casual employee at law, not allowed employers to ‘set off’ the casual loading paid to the employee during their employment against the amount owed to them for permanent entitlements.

In response, the legislation requires a court, when making any order in relation to a claim by a casual employee for permanent entitlements, to reduce any amount payable for permanent entitlements by an amount equal to the casual loading paid during the period for which permanent entitlements are claimed.

Courts may, where an employer pays an employee a loading in satisfaction of a number of entitlements and only a portion of the loading is paid in lieu of permanent entitlements, reduce the amount the employer is required to pay by the proportion attributable to permanent entitlements.

The new legislation has given employers and their casual employees more certainty. It will be extremely important that employers are familiar with the new requirements and that they comply with them.

It will also be important that employers update their casual employment contracts for all employees, whether covered by a Modern Award or not, so that they trigger the protections in the new laws.

For more information, contact the Cooper Grace Ward Lawyers workplace relations and safety team.

Partners  Belinda Winter and Annie Smeaton will be hosting a complementary webinar on this topic on April 30, 2021. To register, see the listing on the Business Acumen Events Calendar.

www.cgw.com.au

*Author Riley Anastasio is a graduate team member at Cooper Grace Ward, Brisbane.

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BEFORE she left of office. former Australian Small Business and Family Enterprise Ombudsman,  Kate Carnell called for an overhaul of Australia's dispute resolution framework, saying the current court system "does not work for small businesses".

When she released the Access to Justice Report, Ms Carnell said small businesses urgently needed pathways to resolve their disputes quickly and cost-effectively.

“Trying to resolve a dispute through the courts is just not a viable option for most small businesses,” Ms Carnell said before leaving the role and handing over to Bruce Billson, a former Federal Government Minister whose portfolio represented the small business sector.

“It’s prohibitively expensive and time-consuming," Ms Carnell said at the time. "We know small businesses are more likely to abandon both the dispute and the commercial relationship, than suffer the cost and mental load of taking legal action. 

“Our report essentially provides a five point plan to ensure small businesses have access to tailored dispute resolution processes that are less formal, more timely and cost effective.”

The report includes a suite of recommendations as part of the five umbrella findings. These include:

-       Strengthening Unfair Contract Terms protections;

-       Promoting alternative dispute resolution;

-       Providing access to voluntary, binding arbitration;

-       Greater access to tribunal and court determinations for disputes;

-       Supporting the wellbeing of small business owners through permanent funding of the Beyond Blue NewAccess for Small Business program.

Ms Carnell said small businesses had been hit hard by the COVID crisis and in this time of unprecedented hardship, disputes inevitably arise.

“My office saw commercial lease disputes increase nine-fold during the peak of the pandemic, with more than 570 cases in the June quarter alone,” Ms Carnell said..

“We know that state-based small business commissioners’ offices were also inundated with these kinds of disputes.

“Commercial disputes are very common, but they can be devastating when not handled correctly.

“Clearly, alternative dispute resolution through mediation, conciliation and arbitration is the best way to preserve commercial relationships. Litigation, on the other hand, is a relationship killer," Ms Carnell said.

“When businesses can’t resolve a dispute with the help of experts, we need to have a system in place that allows for an external party to make a determination, without small businesses having to wait for lengthy periods or go bankrupt due to excessive legal fees.

“Our report recommends forming a small business jurisdiction as part of the Federal Circuit Court to hear matters which cannot be heard by current state or territory tribunals. Damages would be capped at $5 million, matters would be aimed to be resolved within 60 days and small businesses could apply for a no adverse costs order so they are not saddled with the other party’s costs.

“Current state tribunals have been found to be effective for small businesses but they are limited in dealing with cross-border and international disputes. For instance, a Queensland farmer who deals with a NSW processor would not be able to seek a resolution through either state tribunals.

“While the vast majority of disputes are resolved through mediation and conciliation, there also needs to be a cost-effective, timely and binding judicial process for those small businesses that need it.

“Given the enormous pressure small business owners are under as a result of the COVID crisis and the inevitable stress that comes with being involved in a dispute, it is important that our dispute resolution avenues are supportive of participants’ wellbeing.

“Our report recommends mental health measures be integrated into all dispute resolution processes and reviewed regularly to ensure they are meeting the needs of small business owners," Ms Carnell said.

“Ultimately the purpose of this report is to create a framework that supports small businesses and family enterprises in this critical recovery phase.” 

www.asbfeo.gov.au

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THE Australian Small Business and Family Enterprise Ombudsman, Bruce Billson has welcomed the landmark decision of the Full Federal Court to make ‘a sufficient departure from the norms of acceptable commercial behaviour’ a test of whether conduct is ‘unconscionable’ under the Australian law.

“This is a great day for Australian small businesses seeking protection from unconscionable conduct that can harm enterprises and livelihoods,’ Mr Billson said.

“The decision ensures egregious commercial conduct can be captured by the unconscionable conduct provisions under the Australian Consumer Law without having to prove that the harmed small business or consumer has a special disadvantage or vulnerability that was exploited.

“I welcome the Full Court confirmation that conduct may be found to be unconscionable as a result of deviations from the norms of acceptable commercial behaviour, even where there has not been a special disadvantage or vulnerability that was exploited. 

“This should reassure smaller businesses that remedies are available for the harm caused by the unconscionable conduct of a counterparty are available and that fair and reasonable commercial dealings support Australian commerce, even where a larger, more powerful corporation is involved."

Mr Billson congratulated the ACCC and its chair, Rod Sims, for appealing an earlier Federal Court decision that required that a business could only be found to have acted ‘unconscionably’ under the Australian Consumer Law and other similar laws, if it had exploited some disadvantage or vulnerability on the part of the consumers or small businesses affected.

“While the exploitation of a disadvantage or vulnerability is an important criteria for establishing if a business has acted ‘unconscionably’, egregious conduct that causes harm to another business cannot be acceptable purely by the absence of this specific form of exploitation,” Mr Billson said.

“We look forward to seeing further protections for small businesses through changes to the unfair contract terms legislation in the near future.”

www.asbfeo.gov.au

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