“Workplace” clarified by sexual harassment case

Industrial relations

  “Workplace” clarified by sexual harassment case

 In a recent decision, the Federal Court held that the term “a workplace” is broad and may include a range of venues and locations, depending upon the surrounding circumstances and the conduct of workplace participants.

A recent decision of the Federal Court of Australia is a reminder to employees and employers of the need to keep professional and personal relationships separate. In E. v V. (No. 3) [2013] FCA 1311, an employee was awarded $476,163 for sexual harassment by a fellow worker, making it one of the largest court-ordered sexual harassment awards.

The case also provides clarification on the meaning of “workplace” in the Sex Discrimination Act 1984 (Cth) (SD Act), giving the term a potentially broad definition.

Justice Blomberg's judgment contains detailed record of events, beginning at 97 and discussion of damages at 597:

http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2013/2013fca1311#_Ref374004070

“The article is published with permission of Law Society of New South Wales. Copyright (c) Law Society Of New South Wales – Client Newsletter, 2, 2014.”

Contact Solicitor Andre Petrov at Ross Anderson Lawyers if you require assistance with a work-related issue. Ross Anderson Lawyers is a Sydney-based general legal practice.

Please feel free to check our website http://www.rossandersonlawyers.com.au/ for details or visit us on Facebook: https://www.facebook.com/rossandersonlawyers?ref=hl and click Like or Follow.

Overseas posting not a right

MULTINATIONALS’ OBLIGATION TO REDEPLOY

"A Fair Work Commission decision sheds light on the obligation of multinational companies to consider overseas employment for employees affected by redundancy.

The commission found the failure of a multinational company to redeploy an employee who was made redundant into an overseas position was not unfair.

The company, part of a multinational employer group, was found to have complied with its obligation to consider reasonable redeployment options, even though it declined to place an employee in an available position overseas when it made employees in its Brisbane office redundant.

The commission found that only after considering basic questions about a company’s structure, such as whether it has a formal overseas relocations policy and central management control over the relevant overseas office, need the task of assessing an employee’s skills, experience and qualifications against available positions be undertaken.

At any given time there may be a number of vacancies in a firm’s overseas offices. This decision establishes that it will only be necessary to consider international options for redeployment in certain circumstances. A number of other factors which the commission said need to be considered include the costs of relocating an employee from one country to another and training to fit relevant job requirements or gain necessary language skills."

“The article is published with permission of Law Society of New South Wales. Copyright (c) Law Society Of New South Wales – Client Newsletter, 1, 2014.”

Contact Principal Solicitor Andre Petrov at Systema Lex  if you require assistance with a work-related issue. Systema Lex is a Sydney-based general legal practice. Please feel free to check our website http://www.systemalex.com.au for details.

ACCC wins by forfeit in the first unfair contract terms case

ACCC wins by forfeit in the first unfair contract terms case

"Unfair terms and conditions will not be tolerated under the consumer watchdog’s unfair contract term rules.

The Australian Competition and Consumer Commission (ACCC) has chalked up its first win on a case solely arising from the unfair contracts terms rules, with internet service provider ByteCard quickly capitulating and consenting to declarations that its terms and conditions (T&Cs) were unfair.

The rules target industries with a reputation for locking customers in to dodgy contracts, like mobile service providers, airlines and gyms. They caused a stir when they were introduced, threatening to be a serious weapon for consumers and an equally serious headache for businesses. Marred with vague terms like ‘fairness’ and ‘legitimate interests’, it’s sometimes a challenge to assess whether contracts are compliant.

Unfairness in ByteCard’s T&Cs arose because they:

• allowed ByteCard to vary prices without notice, and without giving consumers the opportunity to negotiate or the right to terminate;
• included an indemnity from its customers for, well, anything. It wasn’t even limited to losses arising from the customer’s actions; and
• permitted ByteCard to terminate any account at any time without cause or reason.

For ByteCard, the case cost $10,000 towards the ACCC’s legals, the cost of its own legals, and, most importantly, the damage to its reputation. It could also face damages claims from customers who were adversely affected by the unfair terms.

The kinds of clauses targeted in the case aren’t peculiar to internet service providers. The common thread to the terms in question are that they are one-sided, wide reaching, vague or are internally inconsistent.

It’s fair to assume that these kinds of clauses will remain of most concern to the ACCC.

In short, the ACCC is done with friendly approaches. Enforcement of the unfair contract terms rules is now a priority."

“The article is published with permission of Law Society of New South Wales. Copyright (c) Law Society Of New South Wales – Client Newsletter, 4, 2013.”

Contact Principal Solicitor Andre Petrov at Systema Lex  if you require assistance with a consumer contract issue. 

Systema Lex is a Sydney-based general legal practice. Please feel free to check our website http://www.systemalex.com.au for details.

No land tax for living in a garage...this time

Exemption from land tax

 Deciding on a principal place of residence

"In a recent case, a parcel of land was found to be exempt from land tax where the land owner was living in a garage he had built on the land. The law exempts land that is a “principal place of residence” from land tax.

The person had bought land three doors away from his mother and decided to build a new residence on it. First though, he built a garage which he claimed to live in as his principal place of residence. 

The Commissioner of State Revenue argued that it was not, primarily because he felt the land owner did not really live in the garage which had been built on it. The Commissioner argued that the architectural design and physical character of a garage was inappropriate for residential purposes and that a mere sleeping place was not “residential” in the relevant sense.

The Tax Office has standard procedures in seeking to show a parcel of land is not a person’s principal place of residence, invariably looking at tax returns, electricity bills, driver’s licence and the like, in order to match up the addresses on those returns, bills and licence with the address of the claimed principal place of residence.

In the case, the tribunal decided that the land was not used for anything other than the development of the new house and as the person’s residence"

“The article is published with permission of Law Society of New South Wales. Copyright (c) Law Society Of New South Wales – Client Newsletter, 3, 2013.”

Contact Andre Petrov at Systema Lex if you require assistance with estate planning, construction or conveyancing issue. Systema Lex is a Sydney-based general legal practice. Please check our website at http://www.systemalex.com.au for details.

Change in job duties and responsibilities a breach of employment contract ?

"Employers should be aware that varying an employee’s duties and responsibilities may have the effect of repudiating the employment contract, particularly if it materially impacts on the employee’s status within the organisation or industry.

In a recent decision, a judge found that a company’s executive chairman, who had hired an executive, in effect, in the same position as an existing executive, had repudiated the latter’s employment contract.

Apart from identifying the title of his position, the latter’s employment contract provided no specific detail about his role within the firm. The judge noted that repudiation may refer to conduct which “evinces an unwillingness or an inability to render substantial performance of the contract”.

The well-recognised test for repudiation is whether, objectively, the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it.

There are circumstances where a considerable change in the nature of an employee’s duties may not amount to a repudiation. The circumstances of a particular case may permit a degree of flexibility in approach."

“The article is published with permission of Law Society of New South Wales. Copyright (c) Law Society Of New South Wales – Client Newsletter, 3, 2013.”

Contact Andre Petrov at Systema Lex if you require assistance with a job-related issue.  Systema Lex is a Sydney-based legal practice. Please see our website at http://www.systemalex.com.au for details.

Introducing Systema Lex

Systema Lex   

 

is a general legal practice located in Sydney, Australia. We provide quality legal services to individual clients and business community.

Andrey Petrov is the Principal Solicitor, member of the Law Society of NSW, admitted to practice in NSW and across Australia.

We operate across many areas of law, including Conveyancing, Wills and Probates, Family Law, Employment Law, Construction Law, Criminal Law, Commercial Litigation, Commercial Property and Leases, Strata Law.

We speak English and Russian.

We are open to discuss any legal needs you may have and act for you diligently and efficiently.

Please call us on 1300 65 16 76 or email info@systemalex.com.au

View our website at http://www.systemalex.com.au

Check out our Facebook page at  http://www.facebook.com/legal.systemalex

Connect with Andrey Petrov on Linked In at http://www.linkedin.com/profile/view?id=321194067&authType=name&authToken=Va83&locale=en_US&pvs=pp&trk=ppro_viewmore

 

Logging off for life

Logging off for life

'Take steps now to ensure your online presence is managed appropriately after death.

Digital assets do not have an expiry date. The question of who should have post-mortem access to digital assets is of particular importance in the context of estate planning and management. Dealing with digital assets may not be as simple as leaving login details with a third party. Sensitive information left in the wrong hands could lead to disastrous consequences.

Executors may have legitimate reasons for seeking access to digital assets, including:

• online banking accounts which can hold vital information such as account and credit card details for proper administration of the estate;

• Paypal and Ebay accounts which may contain funds of significant value that the executor must collect for distribution; and

• online photo accounts that might hold sentimental value and will be memoirs for family members.

When making a will, you should consider:

• making a list of your digital assets and online accounts;

• making a record of user names and passwords to each account, *including answers to any security questions (ideally, this should be kept separately from your will);

• giving your executors access to some or all of your digital assets which refer to where the full list and password information can be found; and

• how you want your digital assets to be dealt with, for example, whether you want family members reading your personal emails or accessing other personal information, or simply deleting all online accounts.'

“The article is published with permission of Law Society of New South Wales. Copyright (c) Law Society Of New South Wales – Client Newsletter, 3, 2013.” 

See Andre Petrov at Systema Lex about your will today.