Our changed contacts

Before we forget, please make sure that you have our new office and contact details, so we don't lose you.  New office and contact details are:

Suite 1803, Level 18

109 Pitt Street, Sydney

PO Box 3449 Sydney 2001

Email:  ua.moc.sreywalnamllih@ofni

Tel:  +61(0)2 9232 8392

Fax:  +61(0)2 9233 3591

"The war to end all wars and to make the world safe for democracy"

Woodrow Wilson - World War 1

A sad centenary - World War 1, an extraordinary waste of life that achieved nothing more than paving the way for another inferno - World War 2.  At the outbreak of the war only 3 of the major protagonists had universal male suffrage (none had female suffrage) - Austria, France and Germany, and of these only France had parliamentary democracy and the other 2 were on the other side.  The war was instigated by leaders with 18th century mindsets, strategised by generals with 19th century tactics, and fought by 65 million troops with 20th century weapons.  Deaths were more than 20 million and 21 million were wounded, often irreparably.

"To our last man, to our last shilling"

Andrew Fisher, Australian Labo(u)r Party Leader at the outbreak of World War 1

Australia lost over 60,000 men and suffered 156,000 injured in what was a conflict of European nations and dynasties.  This was Australia's insurance premium for a frightened nation's defence by another - the British Empire.  This insurance premium, married with fear, became part of the Australian psyche, just the insurer changed to the USA, ensuring ongoing unthinking participation such as in Vietnam and Iraq.

What was Australia so frightened of?

Australia, as a nation, began at the beginning of the 20th century with 4.5 million people feeling threatened and isolated by perceived reality.

The response was threefold - white Australia policy, wage arbitration, and high tariffs to protect local industry - an uneconomic and unsustainable response.

Reforms that began in the 1980s combined with the mining boom have allowed Australia unprecedented 24 years of economic growth and Australia's real GDP to more than double.

"This is no time to make new enemies"

Voltaire on his deathbed when asked by a priest if he rejected Satan and all his works

The mining boom has been led by China and its sensational demand for coal and iron ore.  We have recently seen the exuberant welcome of the Prime Minister of China's rival, Japan.  The comfort is that we are able to be less pliant, China's growth is and will continue to slow, and is increased awareness of the impact of pollution will reduce demand for coal.  Japan and South Korea are gearing up for massive imports of liquefied natural gas, as will China.

Here is the tip - what we need is more service!

Mining employs less than 1% of the workforce, manufacturing continues to shrink, and meanwhile more than 70% of Australia's workforce is in services.  Services need to expand and export, through the entire range available - tourism, banking, IT, education, medicine, research. legal services, etc.  Investment in services of course requires cash, private and government, but also in human capital - education, immigration and employment.

Flexible and adaptable employment

All employment in Australia will see increasingly qualified people moving more frequently, either as self employed contractors or as employees and employers looking for less than full time input in services, either in hours or duration of the employment period.  Contractors, employees and employers need to adapt their work processes to this flexibility and legal requirements.  Contracts need to be clear, correct and enforceable.

Casual employees

Contrary to common belief, regular hours do not in themselves change casual employees into permanent part-time provided they receive loading and come under a modern award or an enterprise agreement according to the Fair Work Commission in Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining and Energy Union (2013) FWCFB 243.

Unfair dismissal

Unfair dismissal claims stalk employers who have disciplinary or redundancy issues.

Changes in July 2014 give access to the Fair Work Commission for employees who earn less than $133,000 per annum or are covered by an award or an industrial agreement.

Implied terms in contract of employment

Following the decision of Commonwealth Bank of Australia v Barker (2013) FCAFC 83 a "duty of trust and confidence" has been implied into contracts of employment.  This obliges employers to follow through their own policy procedures in questions of discipline and possible redeployment in redundancy situations.

In Dafallah v Fair Work Commission (2014) FCA 328 the Court held that in failling to follow its disciplinary procedures the consequent dismissal was unlawful, and that any codes of conduct or policy to apply to an employee need to be provided to and be acknowledged by the employee as read.

Flexible and adaptable immigration

We have 457 visas that allow for import of highly skilled personnel to take positions and train others.  The current program shows a decrease of 23.2% over the previous period.  Total of 457 visas equals 0.3% of total employed Australian residents.  These are not people taking the jobs of others, but providing expertise in services not otherwise available and not drawing on education and social services.  On achieving successful long term employment these temporary residents may move on to permanent residence, and over 70% do.

Developments in immigration law

It is fundamental to subclass 457 visas that the provisions of the Fair Work legislation apply to all employees, Australian resident and otherwise.

However, a recent decision of the Fair Work Commission, Smallwood v Ergo Asia Pty Ltd (2014) FWC 964, put an interesting spin on this by holding that where the employer was not an approved sponsor the employee 457 visa holder could not pursue an unfair dismissal claim because there was no legally enforceable employment contract.

Real estate and interest rates

The Reserve Bank's decision to keep interest rates low is likely to keep the property market on the boil and purchasers hot to purchase in a hurry.

Building and strata reports

These are essential tools in deciding to purchase or not.  Going without them is a risky business that can turn what appears to be a good buy into an expensive and very regrettable decision.

Building works and special levies

When selling make sure that these are revealed in the contract, and for strata levies when and on whom the obligation to pay falls - the vendor or the purchaser or shared.

"If it looks like a contract and smells like a contract..."

Some enthusiasts sign up on a contract and exchange with the vendor or the vendor's agent, with a cooling off period, believing it to be no more than a reservation.  It is not.  if the purchaser does nothing in 5 working days, the contract becomes binding.

On the other hand, paying a deposit, signing the contract and leaving it with vendor's agent without receiving the contract signed by the vendor does not bind the vendor to proceed.  Such contract signed by a purchaser and deposit paid may in fact be  used to stimulate and procure another purchaser at a higher price, or even a "Dutch auction", playing off one potential purchaser against another.

Back issues of the Bugle

If you want to catch up on issues in previous Bugles, you can check them out on our website (www.hillmanlawyers.com.au) where you will find a whole orchestra of them.

Brian Hillman

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