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  • 23-Feb-2024 15:34 | Cassidy Lau (Administrator)

    There has never been a better time to be in Penrith, with two newly endorsed strategies setting the path to create more jobs and build strength and resilience in the Penrith economy.

    The Penrith Economic Development Strategy 2023-2031 (EDS 2031) and the Penrith Visitor Economy Strategy 2023-2030 (VES 2030) were endorsed by Penrith City Council in December 2023, after extensive consultation with industry and residents as well as thorough economic modelling by experts.

    Penrith is strategically located in one of Australia’s fastest growing areas, with plenty of land to develop, and 37% (1028 ha) of future employment lands in Greater Sydney. A myriad of investment opportunities are on offer in the economic triangle connecting Penrith, St Marys and the Western Sydney International Airport, including the Quarter Penrith Health and Education Precinct, Mamre Road Precinct, and three new Western Sydney Airport Metro stations.

    Harnessing all this potential, Penrith seeks to create 23,000 new jobs in the city by 2031. Target industry clusters for this growth that have been identified in the EDS 2031 include transport, freight and logistics, manufacturing, and healthcare and education. Penrith’s visitor economy is also expected to grow significantly with the opening of the new airport in 2026. Some of the priorities laid out in the VES 2030 that will support this growth include encouraging investment in the accommodation sector, fostering new attractions, and leveraging Penrith’s conference and events assets.

    To read the strategies in full, visit the Invest Penrith website and get in touch if you want to be involved in Penrith’s exciting future.



  • 23-Feb-2024 15:22 | Cassidy Lau (Administrator)

    Get ready for Culture for Keepers – it's heading your way.

    Culture for Keepers was created to empower others to enjoy what they do as much as we do. Building teams that celebrate the uncommon. And making an impact along the way.

    From Brisbane's mental health focus to the Central Coast's leadership spotlight and Newcastle's happiness chat, Culture for Keepers opened the conversation to important topics in the workplace. Experts like Jason Banks from TIACS, Jess May from HumanX HR, Suzy Miller, Leadership Developer and Declan Edwards from BU Happiness College dished out insights on psychosocial safety, exceptional leadership, and workplace happiness – sparking meaningful conversations across regions.

    These sessions not only left professionals inspired to make a change within their workplaces but created a community where people felt confident to share their career and business thoughts, opinions, and questions.

    Now, we're gearing up for the Western Sydney edition of Culture for Keepers, and we want to see you there. Save the date, Tuesday, March 26th.

    Connect with Gemma at goneilldouglas@rarekind.com.au for your exclusive invite.  


  • 23-Feb-2024 15:03 | Cassidy Lau (Administrator)

    Do you have employees that do not understand their obligations regarding work they create during the course of their employment? Are you unsure of what rights as an employer you have to work product?

    The primary position is that any work created by an employee is owned by the employer, including any intellectual property rights within the work. There may be ways in which an employer or employee has contracted out of this position or altered ownership of the various rights. There is also the question of moral rights…but that is for another time. It is a common misconception by employees that any work product they create is their own and they are entitled to all rights to such work product upon leaving their employment. Former employees, as a result, can then conduct themselves in a manner which may infringe on rights held by the employer in copyright which subsists in a work they may have created whilst employed.

    This issue was considered in the case of Campaigntrack Pty Ltd v Real Estate Tool Box Pty Ltd [2022] FCAFC 112.

    Campaigntrack Pty Ltd (“CPL”) commenced action against Real Estate Tool Box Pty Ltd (“RETB”) for a claim of copyright infringement of the source code of their marketing and service real estate software, DreamDesk.

    The source code of DreamDesk was created by the Third Respondent, David Semmens. Mr Semmens also created software called ‘Real Estate Tool Box’ (“Tool Box”).

    CPL alleged that Mr Semmens created Tool Box with portions of the same source code contained in DreamDesk, which was CPL’s intellectual property. CPL claimed that the infringing source code was also used by the remaining 6 respondents, further infringing their copyright, and that the remaining respondents authorised Mr Semmens’ conduct in infringing the copyright.

    The primary judge on the matter, Thawley J, found that only Mr Semmens had infringed copyright of some of CPL’s work and that he misused confidential information owned by CPL. However, his Honour held that the remaining respondents were not in breach of authorising said infringement.

    The Appeal

    CPL appealed to the Full Court of the Federal Court of Australia primarily on the ground that the primary judge erred in not taking into consideration certain evidence in deciding whether inferences can be made in that the other respondents had authorised the copyright infringement by Mr Semmens.

    The Full Court considered evidence which the primary judge had not regarded, which indicated that, within the relevant period, there were countless occasions where inferences could be made that a reasonable person within the circumstances would have suspected Mr Semmens was infringing on the copyright of CPL, and taken reasonable steps to prevent or avoid any infringing acts.

    Section 36(1A) of the Copyright Act 1968 (Cth) sets out the matters that a court must consider when making a determination of whether a person has authorised any act comprised in copyright. These factors include:

    1. the extent of the person’s power to prevent the act from occurring;
    2. the nature of the relationship between a person and the person that conducts the act; and
    3. whether the person took any reasonable steps in the prevention or avoidance of any infringements occurring.

    McElwaine J relevantly provided in his judgment that:

    “in order to establish that a person has authorised the doing of an act comprised in the copyright in the work and has thus infringed the copyright by exercising an exclusive right of the copyright owner in relation to that act, it is necessary to prove on the balance of probabilities that the person either had actual knowledge of the doing of the act or constructive knowledge of the act because the person had reasonable grounds to suspect the doing of the act or, the person exhibited wilful blindness to the doing of the act… taking into account the s 36(1A)(a) to (c) factors.”

    “…the represented respondents either knew or had reason to suspect that Mr Semmens had or would copy from the DreamDesk system. What the represented respondents believed based on what they were told by Mr Semmens is relevant but not dispositive if, in all of the circumstances, a reasonable person would have had reason to suspect that infringements had occurred.”

    The Full Court held that the circumstances relevant to each of the remaining respondents was adoptive that a reasonable person would have suspected Mr Semmens was infringing CPL’s copyright. Accordingly, the remaining respondents would have had an opportunity to investigate whether any infringement was occurring, and had the power to avoid or prevent the infringing acts or further acts being committed.

    Lessons

    This case exemplifies the importance for employers to proactively ensure that any work produced by an employee or contractor does not infringe a copyright. As the body of intellectual property law grows, this obligation will become increasingly significant and steps should be taken immediately to avoid the risk of potentially authorising copyright infringement.

    For more information on how to address copyright infringement in your workplace or to educate and protect your intellectual property rights with your employees, please contact the Matthews Folbigg Intellectual Property team to speak with one of our lawyers.

    If you would like more information or advice in relation to intellectual property law, contact Senior Associate of the Matthews Folbigg Intellectual Property Group, Hayley Hitch at hayleyh@matthewsfolbigg.com.au or a Principal of the Matthews Folbigg Intellectual Property Group, Simone Brew at simoneb@matthewsfolbigg.com.au.




  • 21-Nov-2023 09:21 | Cassidy Lau (Administrator)

    Witness the best atmosphere and rivalry in Australian Sport when the Sydney Derby comes to Allianz Stadium next Saturday 25 November 2023.

    Join the Western Sydney Wanderers at an exclusive cocktail function and be close to the action both on and off the field.


    Match Details

    Sydney Derby at Allianz Stadium

    Saturday 25 November 2023


    Cocktail function inclusions

    • Close to the atmosphere and action both on and off the field
    • Premium food and drinks
    • Exclusive Cocktail Function Space


    Price

    $320pp plus GST


    Book Now



  • 20-Nov-2023 18:49 | Cassidy Lau (Administrator)

    HR professionals and people leaders of Western Sydney

    Get ready for Culture for Keepers – it's heading your way.


    Culture for Keepers was created to empower others to enjoy what they do as much as we do. Building teams that celebrate the uncommon. And making an impact along the way.

    From Brisbane's mental health focus to the Central Coast's leadership spotlight and Newcastle's happiness chat, Culture for Keepers opened the conversation to important topics in the workplace. Experts like Jason Banks from TIACS, Jess May from HumanX HR, Suzy Miller, Leadership Developer and Declan Edwards from BU Happiness College dished out insights on psychosocial safety, exceptional leadership, and workplace happiness – sparking meaningful conversations across regions.

    These sessions not only left professionals inspired to make a change within their workplaces but created a community where people felt confident to share their career and business thoughts, opinions, and questions.

    Now, we're gearing up for the Western Sydney edition of Culture for Keepers, and we want your input. Who stands out in your mind as a culture, HR, or wellbeing go to in the workplace? We're on the lookout for a speaker for our next event in March.

    Connect with Gemma at goneilldouglas@rarekind.com.au to nominate your speaker or suggest someone who you think fits the brief.

     


  • 20-Nov-2023 18:41 | Cassidy Lau (Administrator)

    Overview 

    On Monday 4 September 2023, the Federal Government introduced the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 into Parliament. The purpose of the Closing Loopholes Bill is to provide further employee protections and close off employer loopholes arising from the use of casual contracts and ‘gig economy’ arrangements.

    The Closing Loopholes Bill constitutes the third tranche of IR reforms to the Fair Work Act introduced by the current government, and follows on from prior IR reforms in December 2022 and again in June 2023.

    The key reforms proposed by the Closing Loopholes Bill include:

    • replacing the existing definition of ‘casual employment’ to overcome the High Court’s decision in Workpac Pty Ltd v Rossato;
    • inserting a new definition of employee/employment to overcome the High Court’s decision in CFMMEU v Personnel Contracting Pty Ltd and ZG Operations Australia Pty Ltd v Jamsek;
    • introducing a new employee choice pathway for eligible casual employees to convert to permanent employment if they wish to do so;
    • granting the Fair Work Commission the power to make orders where host employers use labour hire to undercut bargained wages and conditions in enterprise agreements;
    • granting the Fair Work Commission the power to set minimum standards for workers in employee-like forms of work and to hear claims of unfair deactivation or termination;
    • introducing new criminal offences for underpayments and ‘wage theft’ and increased penalties for non-compliance; and
    • bolstering the discrimination protections in the Fair Work Act and aligning these protections closer to those protections contained in other federal anti-discrimination laws.

    Although the proposed reforms are wide in scope, one of the primary focuses of the Closing Loopholes Bill is stronger protections for casual employees. Specifically, the Bill attempts to remove (or at least reduce) uncertainty around casual characterisation, as well as restrict the ability of employers to falsely characterise employees as casual in order to avoid leave, notice and redundancy obligations.


    New Definition of Casual Employment

    The Closing Loopholes Bill will introduce a new definition of casual employment into the Act. 

    The Bill proposes that commencing from 1 July 2024, an employee will be a casual employee of an employer only if: 

    (a)   the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work; and 

    (b)   the employee would be entitled to a casual loading or a specific rate of pay for casual employees under the terms of a fair work instrument if the employee were a casual employee, or the employee is entitled to such a loading or rate of pay under the contract of employment.

    For the purposes of the definition, whether the employment relationship is characterised by ‘an absence of a firm advance commitment to continuing and indefinite work’ is to be assessed:

    • on the basis of the  ‘real substance, practical reality and true nature of the employment relationship’;
    • on the basis that a firm advance commitment can be in the form of a contract of employment, or in the form of a mutual understanding or expectation between the employer and employee (which can be inferred from the conduct of the parties); and
    • having regard to the following considerations:
      • whether there is an inability of the employer to elect to offer work or an inability of the employee to elect to accept or reject work (and whether this occurs in practice);
      • whether, having regard to the nature of the employer’s enterprise, it is reasonably likely that there will be future availability of continuing work in that enterprise of the kind usually performed by the employee;
      • whether there are full-time employees or part-time employees performing the same kind of work in the employer’s enterprise that is usually performed by the casual employee; and
      • whether there is a regular pattern of work for the employee (which does not need to be absolutely uniform).

    Notably, the new definition no longer requires there to be an ‘agreed regular pattern of work’.  Fixed term and specified task contracts are now also expressly excluded from the definition of casual employment. 

    The new definition more closely accords with the common law multi-factorial test for casual employment accepted prior to the decision in WorkPac Pty Ltd v Rossato [2021] HCA 23. It also appears that the new definition is primarily designed to overcome the High Court’s narrower and more objective interpretation adopted in that case.

    In essence, the new definition will require parties to need to look beyond the terms of the contract to determine whether an employee is truly a casual based upon the ‘real substance, practical reality and true nature of the employment relationship’. The new definition also means that employers can no longer simply assume a casual employment contract will be incontrovertible evidence of an employment relationship.

    Finally, given the second limb of the new definition, it appears that an employee will be a casual employee if the employee has an entitlement to a casual loading or specific casual rate of pay under an industrial instrument or contract of employment. Although all current modern awards prescribe casual loading rates for casual employees, employers should ensure that casual employment agreements expressly specify that the rate of pay is intended to reflect the casual nature of the employee’s employment and incorporate the employee’s entitlement to casual loading.

    The New ‘Employee Choice’ Casual Conversion Regime

    A natural consequence of the return to a broader and more subjective assessment of the employment relationship (based upon the ‘real substance, practical reality and true nature of the employment relationship’) is that the true nature of an employment relationship may become uncertain as it evolves over time.

    To mitigate this potential uncertainty, the Closing Loopholes Bill introduces an alternative ‘employee choice’ casual conversion regime, whereby employees engaged as casual employees may seek to convert to permanent employment in response to changes to their working conditions and/or to the employment relationship.

    This conversion regime is in addition to existing casual conversion provisions in the Fair Work Act which require employers to notify employees of their rights to convert and make offers to convert to permanent employment after a specified period of time.

    In essence, the Closing Loopholes Bill provides that where a casual employee has been employed by an employer for 6 months (or 12 months in the case of a small business employer), the employee is entitled to give the employer written notice that they believe their status no longer meets the definition of a casual employee and request to convert to permanent employment.

    Where an employee makes a written request for casual conversion, the employer is obliged to:

    • consult with the employee about the request; and
    • respond to the request within 21 days of receiving the request, including by stating whether the request is accepted or rejected.

    Where the request is accepted, the employer is obliged to notify the employee in writing whether the employee is changing to full-time or part-time employment (based upon the employee’s work patterns as a casual employee), as well as confirm the employee's new hours of work and the day the conversion comes into effect. 

    If the employer rejects the request, it must also notify the employee of the rejection in writing together with detailed reasons for the rejection. The employer’s response must also state that the employee may dispute the decision and that if the dispute is not resolved the employee may apply to the Fair Work Commission.

    The employer’s rejection must be based on one or more of the following grounds: 

    • that the employee still meets the definition of casual employment; 
    • that substantial changes to the employee’s terms and conditions would be necessary to meet the request; and/or
    • that accepting notification would affect compliance with a recruitment or selection process required under a law of the Commonwealth, a State or Territory. 

    Critically, the employer cannot refuse an employee’s request for casual conversion purely on the general basis of ‘reasonable business grounds’.

    If the employee disputes the employer's decision, the employee will need to try and see if the dispute can first be resolved directly with the employer. If the dispute cannot be resolved, the employee may apply to the Fair Work Commission to dispute the employer's decision via arbitration.

    The Closing Loopholes Bill also contains anti-avoidance provisions that are designed to ensure employers do not circumvent their casual conversion obligations by reducing or varying employees’ hours, changing patterns of work, or terminating employees’ employment. Where an employer is found to have engaged in such conduct, the employer would be subject to significant civil penalties and potentially exposed to General Protections claims (on the basis that the right to request casual conversion is a ‘workplace right’).

    Potential Liability for Back Pay

    One of the major concerns with the continuing alterations to the definition of casual employment is the potential for back pay claims. Such claims typically arise where an employee was employed on a casual basis but subsequently alleges that they were in reality a permanent employee and seeks to recover unpaid entitlements such as leave, notice of termination and redundancy pay.

    To alleviate these concerns, the Closing Loopholes Bill provides that a casual employee will remain so until the occurrence of a ‘specified event’ – such as when the employee’s status is changed or converted to permanent employment in accordance with the ‘employee’ choice’ casual conversion regime, with the existing casual conversion provisions in the Fair Work Act, or by an order of the Fair Work Commission following arbitration.

    For further clarity, the Closing Loopholes Bill provides that all existing employees who were considered to be casuals upon the commencement of the reforms will be deemed to be casuals until the occurrence of one of these specified events.  

    Accordingly, an entitlement to back pay is only likely to arise when an employer incorrectly classifies an employee as a casual from the commencement of their employment.

    Given the significant changes to casual employment brought by the Closing Loopholes Bill, it requires that employers provide all casuals employees with a new ‘Casual Employment Information Statement’ within 3 months of the commencement of the reforms. 

    Further Information

    If you have any questions in respect of the above or would like any other WHS or employment-related assistance, please contact our Matthews Folbigg Workplace Solutions team.


    Stewart Gough 
    Principal
    T: (02) 9806 7483
    M: 0458 586 444
    stewartg@matthewsfolbigg.com.au


    Peter Doughman
    Senior Associate
    T: (02) 9806 7412
    M: 0404 020 409
    pdoughman@matthewsfolbigg.com.au


    DISCLAIMER: This article is provided to readers for their general information and on a complimentary basis. It contains a brief summary only and should not be relied upon or used as a definitive or complete statement of the relevant law.

    Liability limited by a scheme approved under Professional Standards Legislation


  • 20-Nov-2023 18:30 | Cassidy Lau (Administrator)

    Due diligence is an integral step in the acquisition of any business, whether the transaction is an asset purchase or a share purchase.  If done correctly, due diligence helps mitigate the various commercial, financial and legal risks that a purchaser may otherwise be exposed to when acquiring a business.  Due diligence is the process undertaken by the purchaser of a business to perform an assessment of risks and compliance to ensure that the target business is, amongst other things, profitable, compliant with its legal, including contractual, tax and other obligations and operating with appropriate licenses and approvals. 

    The process of due diligence can be extensive and robust depending on the nature, age and size of the business. It involves reviewing, investigating and obtaining appropriate professional advice on various aspects of the business, and verifying the information provided and representations made by the vendor. 

    When should due diligence be conducted?

    While it may be preferred to commence due diligence before entering into a binding contract, the vendor may be reluctant to share sensitive business information prior to an agreement being concluded between the parties. It is therefore common practice for parties to enter into a separate due diligence deed with the necessary confidentiality provisions, or for the sale contract to be drafted such that due diligence is a condition precedent to the sale. This will give the purchaser the right to terminate the contract if the outcome of the due diligence is unsatisfactory.

    Types of Due Diligence

    The types of due diligence will vary depending on the nature of the business being acquired. Generally, due diligence should be conducted in the following areas:

    1. Commercial and operational

    Commercial due diligence involves evaluating the commercial position of the business, including the market, valuation, performance, feasibility, profitability and growth potential.

    Operational due diligence considers the operational aspects of the business, such as personnel, supply chain, logistics, quality, systems, technology and efficiency.

    It is prudent to engage the relevant experts to assist with conducting commercial and operational due diligence of the business, and appointing an industry expert can be critical in certain industries.

    2. Financial

    It is important to obtain financial and tax advice in respect of any business acquisition. An accountant or financial advisor should be engaged as soon as practicable during the due diligence period.

    The process involves examining the assets and financial records of the business to ensure that it is financially sound and that the purchase price is commensurate with the financial position of the business.

    Financial due diligence further entails considering financial responsibilities, such as employee entitlements, and reviewing the tax returns and business activity statements of the business to ensure compliance with its statutory obligations.

    3. Legal

    Legal due diligence involves obtaining and examining information, without limitation, regarding:

    1. the corporate structure of the business;
    2. corporate governance mechanisms;
    3. any applicable licenses, permits or approvals;
    4. insurance policies and insurance claims;
    5. any legal proceedings to which the business is a party;
    6. any purported legal proceedings against the business or to be commenced by the business;
    7. breaches of any agreements to which the business is a party;
    8. any claims, debt, orders for compensation or damages brought against the business or  brought by the business against another party; and
    9. intellectual property rights (including copyrights and trade marks).

    The business would have entered into various legal agreements, such as a lease, franchise agreement, service agreements, supply agreements, employment agreements and other such contracts. Legal due diligence involves reviewing all relevant agreements to:

    1. understand the legal rights and obligations under those agreements;
    2. ensure there are no breaches or purported breaches of such agreements; and
    3. determine whether such agreements are transferable and, if so, the requirements to transfer or assign those agreements.

    It is prudent that a purchaser engages a lawyer to assist with:

    1. advising on the legal risks associated with the business;
    2. reviewing the proposed contract for sale for the purchase of the business;
    3. reviewing and advising on any relevant agreements; and
    4. attending to the necessary enquiries, including ASIC and PPSR searches.

    Key Takeaway

    While due diligence may be a time consuming and expensive exercise, it is an essential step when acquiring a business as it allows the purchaser to:

    1. assess the risks associated with the business;
    2. obtain crucial advice regarding the legal, financial, commercial, and operational aspects of the business; and
    3. make an informed decision before entering into an unconditional contract.

    A successful due diligence investigation can ultimately save time and money and assist with reducing the stress of having to bear the consequences of any undisclosed risks of the target business.

    Further information

    If you require specific advice or assistance regarding a purchase or sale of a business, please contact the Commercial Law Team at Matthews Folbigg Lawyers.

    Liability limited by a scheme approved under Professional Standards Legislation.

    Zeeshaan Nordien

    Level 7, 10-14 Smith Street Parramatta NSW 2150
    P: 02 9806 7408
    E: zeeshaann@matthewsfolbigg.com.au


    DISCLAIMER: This article is provided to readers for their general information and on a complimentary basis. It contains a brief summary only and should not be relied upon or used as a definitive or complete statement of the relevant law.

    Liability limited by a scheme approved under Professional Standards Legislation


  • 20-Nov-2023 18:22 | Cassidy Lau (Administrator)

    Just like his dad, 12-year-old Arato loves sport, but tennis is where he comes alive! He recently represented Australia at an international tennis tournament, and he even came home with medals.

    But when he was nine, his coach noticed Arato was beginning to miss the ball more and more. That’s when he was tested and it was discovered, just like his dad, Arato had Stargardt Disease.


    Stargardt Disease is a progressive condition that often starts as a few black spots in the central vision but can eventually lead to loss of the entire central vision, leaving only the peripheral vision. Sadly, this is how Arato’s dad, Tim, now sees the world.

    But scientists at Children’s Medical Research Institute in Westmead have just calculated that an individual with a genetic eye disease could spend $5.2M over their lifetime, just to live an independent life.

    Now, their only hope for Arato is through research.

    Professor Robyn Jamieson at Children’s Medical Research Institute said research is closer than it has ever been to finding treatments for kids like Arato.


    “We need to find a treatment to stop the progression of his vision loss right now.

    “With your support, we can continue our research into Stargardt Disease and help give his parents hope that Arato will live life to the fullest, playing tennis, and winning tournaments.’’

    To find out more about this research happening right in your backyard in Western Sydney, visit: https://www.cmrijeansforgenes.org.au/get-involved/appeals/join-aratos-mission



  • 20-Nov-2023 18:11 | Cassidy Lau (Administrator)

    The William Inglis Hotel is a boutique equine themed, MGallery by Hotel Collection 5 Star Hotel. Celebrating racing history and the thoroughbred industry.

    Located in the South West of Sydney and nestled in the scenic Riverside Stables Precinct. The property is situated only 30 minutes from Sydney Airport and 45 minutes from the Sydney CBD.


    The property features:

    • 144 Accommodation Rooms
    • Dining Precincts including: The Newmarket Room Restaurant, Heroic Café & 1867 Bar Lounge, Chiltern Pool Deck Bar (Summer Exclusive) Room Service
    • Fitness Centre
    • Spa and Wellness Centre
    • Chiltern Rooftop Pool
    • 800 Complimentary Parking Spaces



    Discover our Day Delegate Packages

    In our versatile event spaces, we offer tea and coffee on arrival and seasonal fruit to kick start your day. Our spaces include everything you may need from AV to chef selected lunch and afternoon tea. An all in one offer, in a unique space like no other.

    HALF DAY DELEGATE PACKAGE - $80.00 PP

    FULL DAY DELEGATE PACKAGE - $85.00 PP

    Enquire now to HB042-EV1@accor.com



  • 20-Nov-2023 17:55 | Cassidy Lau (Administrator)

    The Federal Government plans to reduce concessions for individuals with superannuation balances over $3 million, introducing an additional 15% tax on their superannuation earnings if the draft legislation is passed. Our friends at William Buck have summarised the proposed changes and what they mean for your superannuation and tax planning strategies.

    Read more here



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