The Key Differences Between Privacy and Confidentiality

The Key Differences Between Privacy and Confidentiality

Privacy and confidentiality are two separate concepts that protect different types of information. ‘Privacy’ is used in relation to information that is protected under law (normally under the Privacy Act 1988 (Cth)), whereas ‘confidentiality’ refers to different information contained in valid contracts and agreements.

Understanding the differences between these terms is key in helping avoid confusion when seeking legal assistance with contracts, understanding how to rightfully maintain personal information or even in establishing successful lawyer-client relationships. This article will outline how these different types of classified information can be legally disclosed.

What does Privacy mean?

The term privacy traverses multiple contexts, including physical, surveillance and information privacy.

  • Physical privacy refers to an individual’s natural right to sustain their own physical space and/or bodily privacy. This form of privacy may be compromised when individuals are forced into invasive procedures such as genetic tests, drug testing and cavity searches.
  • Surveillance privacy concerns communications made by and between individuals, and protects the security and privacy of mail, telephones, e-mail and other forms of communication.
  • Information privacy relates to the government’s responsibility to regulate and protect individual’s data. The Federal Government is responsible for regulating collections of an individual’s personal data including credit information, and medical and government records.

Who does the Privacy Act apply to?

The purpose of the Act is to regulate and protect the personal, classified information belonging to individuals. The Act allows individuals to:

  • Ask for access to their personal information;
  • Know why their information is being collected, how it will be used and who it will be disclosed to; Have the option not to identify themselves;
  • Ask for personal information that is incorrect to be corrected; and
  • Make a complaint about an organisation or agency the Act covers if they believe personal information has been mishandled.

The Act applies to certain government agencies, organisations and businesses that produce an annual turnover that exceeds $3 million. This imposes obligations on businesses, not-for-profit organisations, clubs associations and employee union organisations in relation to handling personal data.

What does Confidentiality mean?

Confidentiality protects private information that is disclosed in a legal document or relationship. Common types of confidential relationships include between lawyers and clients, and between doctors and patients. Confidential agreements can be made in written or oral form.

Legal obligations to confidentiality

Confidential obligations are often sourced from case law, and can exist without express statements as to their presence. However, an obligation may be enforced through contract and is most commonly expressed in a confidentiality clause that binds parties to keep certain information classified. However, these obligations may vary depending on the nature of contractual terms.

How Etheringtons Solicitors can help 

A solicitor at Etheringtons Solicitors can provide further clarification of the relevant law and its relation to your individual circumstances. If you require assistance with understanding privacy or confidentiality obligations, do not hesitate to get in contact with our experienced team by calling (02) 9963 9800 or via our contact form.

Construction Update: New Regulations for Builders, Designers and Engineers

Construction Update: New Regulations for Builders, Designers and Engineers

As of July 2021, reforms under the Design and Building Practitioners Act 2020 (NSW) and the Design and Building Practitioners Regulation 2021 (NSW) have come into effect to provide greater regulations for building and construction practices in response to a number of defective residential apartment blocks.

These reforms have implemented a compliance declaration scheme, as well as further registration and mandatory insurance requirements for practitioners. This article will outline the new obligations for practitioners, including builders, designers and engineers, which are aimed at ensuring a higher standard of safety and quality of work in the building industry.

What ‘Building Work’ does the law regulate? 

Pursuant to the Regulations, buildings are separated into ‘classes’. Those that are covered by the new reforms are classified as Class 2 buildings, which are generally residential apartments. This would also include mixed use residential and commercial buildings. However, it is important for practitioners to note that the duty of care requirements extend beyond Class 2 buildings and includes single dwelling homes and other residential building works.

Registration Requirements

If you are performing design or construction work on Class 2 buildings, you are now required under the reforms to be registered. The Act defines the requirements for compliance by building and design practitioners as follows:

  • A design practitioner is a person who prepares regulated designs.
  • A principal design practitioner is a person who coordinates the provision of design compliance declarations.
  • A building practitioner is a person who carries out building work, or a person who is the principal contractor for the work.

The requirement of registration includes minimum qualifications, experience, knowledge and skills in respect of the various classes of practitioner. Designers and builders will also be required to comply with the prescribed Code of Practice and must continue to satisfy professional development requirements in order to maintain their registration under the Act.

There are penalties if a building or design practitioner:

  • Fails to provide compliance declarations;
  • Makes false or misleading declarations; or
  • Makes declarations without the requisite registration.

Compliance Declaration Scheme

The Regulations also require further detail for designs and compliance declarations which must be lodged by a practitioner before an occupation certificate must be issued. This lodgment must take place at four different stages of a project. These are:

  1. Before the building work commences, a building practitioner must provide a complete set of construction designs and compliance declarations;
  2. For each variation to a design, the building practitioner must lodge the varied designs and accompanying declarations no later than a day after the variation is This does not apply to minor variations that do not impact building elements or performance solutions;
  3. Before applying for an occupancy certificate the practitioner must lodge another compliance declaration, contractor document and variations statements on the NSW planning portal;
  4. Within 90 days after the occupancy certificate is issued, each regulated design and any other documents that relate to the building work must be lodged.

These required documents can only be provided to the Secretary of the Department of Customer Service by a registered design practitioner or registered building practitioner.

Insurance

From the 1st of July 2023, registered building, design and engineer practitioners will need to be indemnified under a professional indemnity insurance policy. The policy must cover the liability that could be incurred in the course of their work, as determined by the practitioner. These insurance policies must also apply retrospectively to any liability incurred from the point that the practitioner became registered under the new regime.

How Etheringtons can help

It is important that building practitioners are made aware of their obligations. Etheringtons Solicitors can provide additional information and advice to you regarding your building or property situation. If you would like to discuss your concerns with a legal professional please contact us on 9963 9800 or via our contact form.

Terminating a Building Contract for Breaching Due Diligence

Terminating a Building Contract for Breaching Due Diligence

Terminating a building contract enables parties to discontinue their contractual obligations. The terms for termination are dependent on the terms of the contract and the circumstances involved. Therefore it is important that the contract is reviewed by a solicitor prior to enforcement and/or termination. If there has been a substantial breach or repudiation of the contract, termination can be made by express or implied agreement.

There are significant consequences for owners who invalidly terminate a building contract. This article will examine a recent case where the owners claimed the builder had breached their due diligence and thus the owners repudiated the contract. However they failed to establish the builder’s breach of due diligence, thus emphasising the importance for owners to fulfil all of their obligations when considering termination.

A recent case study: Patel v Redmyre Group Limited

The builder (Redmyre Group) carried out building works to renovate and restore a 4 storey residential terrace in Dawes Point, Sydney, for the owners (Nandini Patel, Harsh Jain and Jainco Services Pty Ltd). The building contract required building completion within 32 calendar weeks from the date of commencement. At the end of 32 weeks, the building was not complete. The owners took the following actions:

  • 20 February 2019: the owners issued a ‘show cause’ notice demanding a schedule of works and estimated time for completion.
  • 7 March 2019: the owners issued a notice of termination with immediate effect due to the builder’s alleged breach of the contract and statutory warranties contained in section 18B of the Home Building Act 1989  (NSW).
  • 4 April 2019: the builder responded noting their intention to rectify the defects and seeking access to the site. The owners did not provide this requested access.

At first instance, the owners alleged that the builder failed to progress the works and exercise due diligence. The owners claimed $215,683 in damages for incomplete works and an additional $130,000 for delay. The builder alleged that the delay was beyond their control for factors including the owners’ direct interference and variations from the initial works.

The NSW Civil and Administrative Tribunal held that the owners did not establish that the builder had breached their due diligence obligation and instead issued a notice which was not in accordance with that required by the building contract. It was found that the owners repudiated the contract in their letter dated 7 March 2019, but the builder had not terminated the contract given their request to return to the site. Repudiation occurs when one party to the contract expressly or implicitly demonstrates that they are either unwilling or unable to perform their contractual obligations (see DCT Projects Pty Limited v Champions Homes Sales Pty Limited).

No damages for delay or incomplete works were awarded as the owners had failed to mitigate the loss and provide the builder with reasonable access to rectify the defects as required by the Home Building Act 1989 (NSW) section 18BA(3). This was upheld by the Appeal panel in the NSW Civil and Administrative Tribunal (Consumer and Commercial Division). The owners’ appeal was dismissed and they were ordered to pay the builder’s costs.

Valid termination for breach of due diligence

Valid termination can occur in circumstances where the owners can prove, on the balance of probabilities, that the builder has not proceeded with due diligence and within the time stipulated in the contract, as this would breach the statutory warranties which are considered to be implied terms of all building contracts. This requirement of due diligence is breached when a “failure to proceed with that degree of promptness and efficiency that one would expect of a reasonable builder who is undertaking a building project in accordance with the terms of the contract in question” occurs (see Re Stewardson Stubbs & Collett Pty Ltd v Bankstown Municipal Council). The length of time considered reasonable must be taken into account if construction is delayed for circumstances outside the builders’ control, such as an exclusion from the site by the owners as in the above mentioned case.

Obligations on the owner

The onus is on the owner to establish this breach of due diligence, but also to take reasonable efforts to mitigate their own loss and allow reasonable access to the site for builders seeking to rectify any defects according to section 18BA of the Home Building Act 1989 (NSW). In the Patel v Redmyre case, the owners merely proved that the builder had not achieved practical completion by the date specified in the building contract, and failed to take into account the rate of progress of the works on site. They then deliberately, and unreasonably, excluded the builder from accessing the site, thereby failing to meet these obligations.

In the event that a builder defaults on an obligation within the building contract, such as not completing the building works in a reasonable time, the building contract will typically include a notice clause. Under this, the owner is obligated to give appropriate notice of termination of the contract, in accordance with the specified terms of the building contract.

In the case study, the owners were found not to be entitled to claim damages for defective or incomplete work, or delay, as a result of their invalid termination. The Tribunal held that the owners’ letter dated 20 February 2019 was not sufficient notice and the builder was not given sufficient capacity to rectify the breach within a reasonable time frame. Failing to strictly follow the requirements of the notice clause within the building contract may result in repudiation by the owner.

How Etheringtons Solicitors can help

A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. Etheringtons Solicitors can assist with if you need further advice or assistance with construction or contractual law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

Uber Breached its Privacy Obligations to Users

Uber Breached its Privacy Obligations to Users

The Office of the Australian Information Commissioner has found that Uber failed to protect the personal data of Australians following a cyber-attack in 2016. Uber had been able to prevent the attack and subsequently paid the attackers a reward in exchange for the destruction of the data. The Commissioner conducted an investigation into whether Uber’s preventative measures complied with the Privacy Act 1988 (Cth) (‘Privacy Act’).

Do Australian Privacy Laws apply to International Companies?

Uber does not have a head office in Australia and therefore has no physical presence in Australia. As such, it did not have a direct contractual relationship with Australian drivers or passengers when the data breach occurred. Uber claimed that it was not subject to the requirements under the Privacy Act. However, the Commissioner determined that as Uber carried out business in Australia, section 5B(1A) of the Privacy Act applied. This section extends the operation of the Privacy Act extra-territorially to the acts of organisations which engage in Australia, despite being registered or having their physical presence outside Australia.

How did Uber breach the Privacy Act?

 In their findings, the Commissioner determined that Uber failed to comply with three Australian Privacy Principles (APPs). We have written a previous article explaining these principles in more detail. In this case, the main breaches were:

  • APP 11.1, which requires an entity to ‘take such steps as are reasonable in the circumstances to protect the information from misuse, interference and loss and [to protect the information] from unauthorised access, modification or disclosure’.
  • APP 11.2, which requires an entity that no longer needs personal information it holds to ‘take such steps as are reasonable in the circumstances to destroy the information or to ensure that the information is de- identified’.
  • APP 1.2, which requires an entity to take reasonable steps to ‘implement practices, procedures and systems relating to the entity’s functions or activities that will ensure’ compliance with the APPs and will enable inquiries or complaints to be dealt with.

As a consequence of these breaches, the Commissioner ordered Uber to implement a comprehensive data retention and destruction policy, an information security program and an incident response program to ensure that they can comply with the APPs moving forward. However, no fines were imposed on the organisation.

This decision has made clear that global corporations will be held liable under Australian privacy laws even if customers’ personal information is retained overseas. It is also important to note that Uber has faced proceedings in other jurisdictions including the United Kingdom for similar breaches, and where monetary sanctions were imposed.

How Etheringtons Solicitors can help

The findings of the Commissioner are a timely reminder of the importance of both inter and intra-national entities who operate within Australia to ensure they are meeting their obligations when dealing with personal information. If you require assistance with understanding privacy obligations, do not hesitate to get in contact with our experienced team by calling (02) 9963 9800 or via our contact form.

Estate Planning For Single Parents

Estate Planning For Single Parents

Single parent families now represent 14% of all Australian families, with a majority of their children being under the age of 18. Being a single parent can be difficult financially, therefore, it is important to ensure that your financial affairs and estate plan are in place to protect your children should something ever happen to you. An Estate Plan is legally binding and documents how you wish for your assets distributed in the event of your death.

This article will discuss the two main factors you should consider when forming your estate plan as a single parent, namely making sure you have an updated Will, have appointed a guardian, and have made plans regarding your insurance and superannuation.

1. Your Will

 Your Will appoints an Executor to manage your assets and liaise with your children’s guardian. The Executor will hold your children’s share of the estate on trust until they become adults. Alternatively, a solicitor can assist you in setting up a private trust in which your children’s share of assets is held by someone other than the Executor.

As a single parent, it is important to ensure that your Will is up to date and reflects the current circumstances of you and your children. This is particularly true if you have separated, or are currently in the process of separating from a former partner, or entering into a new relationship as these changes can have a profound effect on your estate plan. You also need to ensure that any and all alterations to existing Wills should comply with section 6 of the  Succession Act 2006 (NSW). Furthermore, if you do not have a Will, your assets will be divided according to the laws of intestacy, and may not be divided according to your wishes had you been alive. This emphasises the importance of having an accurate, updated Will which clearly sets out your wishes in the event something should happen to you.

It is important to note that your life insurance and superannuation death benefits are not controlled by your Will. It is important to nominate beneficiaries for these assets so that your children may be provided for financially after your death. While minor children cannot receive these assets themselves, there are methods for protecting these assets until your children are older.

2. Appointing a Guardian

In the event of your passing, it is important that a guardian is appointed. In multiple parent families, the surviving parent is made solely responsible due to the presumption of shared parental responsibility prior to the death. However, in single parent families, the appointed Guardian will be responsible for your minor children (those under the age of 18) in your absence, and will have decision-making powers over their care, welfare and development. Appointing this guardian will help support your children through the difficult transition in the event something happens to you. It will also avoid any uncertainty over who is responsible for them, and may assist in reducing family conflicts in the future.

This is a significant decision, as the appointed guardian will be responsible for their medical treatment, education, residence and other day to day considerations. It is important that you choose someone who you believe will make these decisions in your children’s best interest, in the same way that you would. A frank discussion with the person you are considering appointing is important to ensure that they are willing to take on this significant responsibility, as well as outlining specific arrangements to be made in your stead. You may choose to include a Memorandum of Wishes with your Will to provide any such specific guidance for your guardian.

Similarly, you may wish to prepare an Enduring Power of Attorney which specifies who will make personal and financial decisions on your behalf if you become incapacitated by illness or an accident.

How Etheringtons Solicitors can help

As a single parent important thing is to protect the interests of your children as you navigate major milestones in life. This may include removing or adding partners in the future. Any Will you have made may become obsolete and no longer representative of your wishes within a few years of drawing it up. If you would like to discuss constructing a new Will, or changes in your circumstances resulting in the need to review of your current Will, please call us on (02) 9963 9800 or via our contact form.

High Court’s decision to reject backpay to Casual Workers

High Court’s decision to reject backpay to Casual Workers

The High Court of Australia has recently affirmed that casual workers are not entitled to receive payments for annual, sick, or other forms of leave, and that if a worker is receiving these benefits and being promised ongoing employment, that worker may not legally be considered casually employed under the Fair work Act 2009 (Cth) (‘Fair Work Act’).

The decision in Workpac v Rossato

 The High Court’s decision was made after allowing the appeal of Workpac in their case against casual mine worker Robert Rossato. The courts had investigated Mr Rossato’s alleged status as a ‘long-term employee’ for the labour- hire company and found that he was actually only employed in the capacity of a designated ‘casual-worker’.

Mr Rossato was employed by Workpac for four years. During the time, he received a total of six employment contracts which described his role as a ‘casual employee’. Mr Rossato claimed that by working on a fixed weekly roster – sometimes over several consecutive months – he was more than just a ‘casual-worker’ and that there was a discrepancy between his title and the actual nature of his work. At first instance in the Federal Court it was found that Mr Rossato was not a casual employee upon this basis. However, upon appeal, the High Court found that Mr Rossato was a casual employee under the Fair Work Act.

The Court made this decision on the basis that although Mr Rossato had been given rosters several months in advance, this did not constitute a ‘firm advance commitment’ of work, as the shifts could have been changed or taken away from him at any time. Additionally, the Court concluded that Mr Rossato was employed on an ‘assignment-by-assignment’ basis, as he was entitled to accept or reject any offer of assignment, and Workpac had no obligation to offer additional assignments.

Mr Rossato was not receiving any paid annual or sick leave and he was receiving casual loading. The Court held that these were “compelling indicators” of a casual employee.

Fair Work Act 2009

The Fair Work Act is an essential Commonwealth statutes that governs employment by setting out terms, conditions, rights and responsibilities in the relationship between employers and employees. It regulates the rights of both employers and employees to request flexible working arrangements, and also deals with things such as termination and the general protection of workers’ rights.

The Federal Court’s initial decision in Workpac v Rossato necessitated a change to the definition of a casual employee under s 15A of the Fair Work Act. The new definition states casual work involves an employment relationship in which ‘employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work”.

How Etheringtons Solicitors can help

If you would like further information regarding employment issues or paid entitlements, please do not hesitate to contact one of our solicitors on 9963 9800 or via our contact form here.

Fair Work Commission Rejects Unfair Dismissal of Unvaccinated Employees

Fair Work Commission Rejects Unfair Dismissal of Unvaccinated Employees

Australia’s national workplace tribunal, the Fair Work Commission (FWC), has upheld the dismissal of unvaccinated employees for failing to comply with relevant public health orders (vaccination directions) regarding COVID-19. To mitigate the risk of unfair dismissal claims, employers must ensure that procedural fairness is upheld.

Disclaimer: The directives in this article relating to the COVID-19 pandemic may no longer be in force. Please use caution if you are citing legislative material from this article as laws are subject to change. We recommend that you seek the most up-to-date law.

Can an employee be terminated for refusing to be vaccinated?

The cases explored in this article have established a precedent for the lawful dismissal of unvaccinated employees. The cases demonstrate how an employee’s decision to remain unvaccinated against COVID-19 can prevent onsite work. The refusal of vaccination directions can result in an employee being incapable of performing the inherent requirements of their role, thus leading to a valid reason for dismissal.

Floors Aucamp v Association for Christian Senior Citizens Homes Inc [2021] FWC 6669

Background:

In January 2016, Mr Aucamp commenced employment with the Association for Christian Senior Citizens Homes Inc (the Association) in the role of a full-time maintenance manager.

On 4 October 2021, a meeting took place between Mr Aucamp and two representatives from the Association to discuss the vaccination directions that were going to be implemented on 7 October 2021. The Association was aware of Mr Aucamp’s objection to the vaccine. Mr Aucamp agreed to the possibility of dismissal should he refuse to comply with the vaccination orders.

Mr Aucamp’s employment was terminated on 14 October 2021 on the basis that Mr Aucamp could not lawfully enter the premises and was therefore unable to perform his duties.

FWC Decision:

The FWC agreed that Mr Aucamp was required to be vaccinated in accordance with public health orders. The FWC held that Mr Aucamp’s decision to remain unvaccinated rendered him incapable of achieving the expected standards of performance, thereby constituting a valid reason for dismissal.

Isabella Stevens v Epworth Foundation [2022] FWC 593

Background:

On 20 September 2021, the management of Epworth HealthCare (Epworth) informed all employees that mandatory vaccination directions required healthcare workers to ‘be vaccinated and provide appropriate evidence of vaccination, or have a booking to receive a vaccination by 29 October 2021, unless the exception for medical contraindications applied.’

Ms Stevens, a dietician at Epworth, communicated her objections to the vaccine to the executive general manager of Epworth Richmond. The executive general manager advised her that it would not be feasible to ‘perform the key requirements of her role from home.’ Owing to Ms Stevens’ incapacity to attend the workplace, her employment was terminated.

FWC Decision:

The FWC upheld the dismissal of Ms Stevens on the grounds that she refused to provide her employer with proof of her vaccination status.

The FWC rejected the following submissions from Ms Stevens:

  • that taking the vaccine was to ‘participate in a “medical trial procedure”’
  • that the vaccination directions were inconsistent with federal law
  • that the vaccination directions were inconsistent with the Privacy Act 1988
  • that the vaccination directions were inconsistent with anti-discrimination legislation
  • that the vaccination directions were inconsistent with international human rights conventions
  • that Epworth should have lobbied against the Victorian Government to have the vaccination directions revoked

The FWC held that Epworth’s dismissal of Ms Stevens was in accordance with vaccination directions which imposed a duty of care on healthcare facilities. These directions imposed a ‘regulatory requirement’ in relation to the vaccination status of Epworth’s employees, rendering the dismissal lawful.

Likewise, the FWC rejected the contention that the COVID-19 vaccination rollout was a “medical trial,” as the relevant tests had taken place before the Therapeutic Goods Administration approved the vaccines.

What are the obligations of an employer?

It is the responsibility of the employer to take steps to comply with the relevant public health orders. When implementing policies such as mandatory COVID-19 vaccine policy, employers must ensure procedural fairness by undertaking a consulting process with their employees.

To understand how the vaccination directions apply differently across each state and territory, please visit the Fair Work Ombudsman website.

Additionally, if you would like to learn more about the complexities of unfair dismissal claims, please visit our blog.

How Etheringtons Solicitors can help?

A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. If you need further advice or assistance with any employment law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

The Legality of Cash in Hand Wages in Australia

The Legality of Cash in Hand Wages in Australia

Some businesses choose to pay their employees cash in hand wages rather than transferring them to a nominated bank account. Whilst this method is generally believed to be illegal, that is not necessarily the case. Employers must meet their obligations to their employees and the government, whether they make payment in cash or otherwise. This article will explain how cash in hand wages can be legal and the obligations employers must observe when paying their employees.

What is ‘cash in hand’?

Payment of wages as cash in hand means that a person is paid directly in cash rather than through a bank or with a cheque. In small hospitality and maintenance businesses, where this practice is common, it is an easy and efficient way to operate the business.

Employer obligations

If an employer wants to pay wages through cash in hand, it is important that they ensure their obligations are still being met by:

  • Paying their employees the correct amount under the relevant award;
  • Paying the correct amount as stipulated in employment contracts and allowing for any leave entitlements;
  • Taking out the relevant tax amount to ensure employees aren’t left with the bill;
  • Contributing superannuation payments to employees superannuation funds; and
  • Being covered by workers compensation in case an employee is injured at

To legitimise the cash in hand payment, it is advisable to provide your employees with a pay-slip to prove that their earnings correlate with the award, the correct tax is being taken out and superannuation payments are being made. Pay slips should generally include:

Employer and employee names; Australian Business Number; Pay period (weekly or fortnightly);

Gross and net pay (pay before and after tax); Applicable hours worked and rate of pay; Any additional loadings or penalty rates; and Superannuation contributions.

Employers can also provide employees with a payment summary at the end of each financial year which outlines how much they have been paid throughout the year, and what amount of this is going to tax.

Once these records have been provided to employees, it is essential that employers keep and file a copy for their own records. Employers are expected to keep a record of their employees and their pay and this can be as simple as keeping a physical or electronic copy of employees’ pay slip.

It is also important as an employer that you ensure that you comply with the requirements of the Australian Taxation Office. Committing tax fraud or other tax related offences can attract severe criminal penalties. Therefore, it is important to comply with the ATO’s requirements and withhold the correct tax amount from your employees’ wages. If you are concerned about tax thresholds or understanding your reporting obligations, it is imperative that you seek the appropriate financial and legal advice.

There have been a number of high-profile cases involving the systemic underpayment of workers in restaurants, convenience stores and petrol stations. It is critical that these sorts of practices do not continue into the future.

Receiving cash in hand wages

As an employee, receiving cash in hand payments may be more convenient for you and your employer. However it is important to ensure that you are not being paid less than what you are owed under your contract or under the correct award rate. You are also obligated to declare your income to the Australian Taxation Office when completing your tax return. It is advisable to confirm with your employer that they are paying superannuation contributions to your nominated super fund. If you are concerned about the way in which you are being paid, speak to your employer or seek experienced legal advice.

How Etheringtons Solicitors can help? 

We can help you by providing advice and representation in any employment law matter, whether you are the employer or employee. If you need any assistance contact one of our lawyers here or call 02 9963 9800 for a no- obligation discussion and for expert legal advice.

Applying for a Director Identification (Director ID) Number

Applying for a Director Identification (Director ID) Number

With the enactment of the new laws, all current company directors and anyone who wishes to become one, will be required to obtain a unique director identification (Director ID or DIN) number. This will be administered by a new national registry service, the Australian Business Registry Services (ABRS). Unlike the previous system which allowed any natural person to register themselves as a director in a database maintained by ASIC, this new registry will assist regulators to accurately identify directors with verified identification documents, which will assist with enforcing accountability if they commit offences or engage in misconduct, and prevent illegal phoenix activity.

Who should apply for Director ID and when?

All natural persons who are currently registered as a director, or want to be registered as a director, of a legal entity under the Corporations Act 2001 (Cth) must apply for a DIN through the new service called the Australian Business Registry Services (or ABRS). Relevant legal entities include a company, corporate trustee (including a self-managed super fund), charity or not-for-profit organisation, registered Australian body, or a foreign company registered with ASIC carrying on business in Australia.

The deadline for applying for a DIN depends on when you were appointed as a director:

  • If you are already a director on or by 31 October 2021, you must apply by 30 November 2022.
  • If you become a director between 1 November 2021 and 4 April 2022, you must apply within 28 days of your appointment.
  • If you become a director from 5 April 2022, you must apply prior to your appointment or registration of a company.

Failure to apply by the required date may result in criminal or civil penalties of 5000 penalty units, which equates to up to $1.11 million. From the date you receive your DIN, it will be attached to you permanently, even if you cease to be a director, move interstate/overseas or change your name.

How do you apply for a Director ID through the ABRS?

You must apply yourself as you must verify your own identity. However, a staff member at Etheringtons Solicitors can assist you to understand the new DIN requirements and provide support throughout your application. To apply, you must:

  1. Set up your MyGov ID login, ensuring you achieve standard or strong identity strength, and download the relevant phone application.

If you are unable to do this, you can complete your application through a slower phone application or paper form which will be available in November 2021 but you must still complete step 2.

  1. Prepare your documentation as evidence of your personal This documentation must be verifiable by the ATO and will include the following:
    • Tax file number (TFN),
    • Residential address as held by the ATO, and
  • Any two of the following personal information documents:
    • Bank account statement
    • ATO notice of assessment
    • Superannuation statement
    • Dividend statement
    • Centrelink payment summary
    • PAYG payment summary.
  • If your legal entity has an Australian Business Number (ABN), you will be required to confirm whether that organisation is registered as a company with ASIC (with an appropriate Australian Company Number), as an Australian Body (with an appropriate Australian Body Number (ARBN)), or as a foreign company (with an appropriate ARBN).
  1. Once you have a myGovID you can log in and If you can’t apply online you can use a downloadable form instead – Application for a director identification number (NAT75329, PDF, 306KB).

How Etheringtons Solicitors can help

 A solicitor or other staff member at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. If you need further advice or assistance with business law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

Trademarking a Business with a Geographical Place Name

Trademarking a Business with a Geographical Place Name

Many businesses choose to include a geographical place in their business name. Using a suburb or location communicates to customers where a business is located or from where their products originate. This is effective in helping to build a local client base and enhancing a business’ reputation.

The inclusion of a geographical place in your business name, however, may make it difficult to register that name or logo for a trademark.

Trademarking a business name or logo

In order to trademark a business name with IP Australia, you must satisfy the distinctiveness test. The ability to register a trademark is determined by whether the business name or logo is new and distinctive from any other names or designs that have been registered through IP Australia or that may be registered in the future.

To have a valid trademark, therefore, it is essential that your business name and design is distinguishable from other businesses. A business may be prevented from registering their trademark if their name or logo is identified as being too similar to that of another business.

Registering a geographical place name

For this reason, it is difficult to trademark a business name with a geographical term because this prohibits any other businesses that are operating in the same location to promote their goods or services. IP Australia considers this to be an unfair monopolisation of a geographical term.

It is particularly difficult to register a trademark with a geographical place name if the location features a range of goods and/or is a location name found commonly across Australia.

To circumvent these location hindrances, there are two ways that a business can trademark a geographical place name:

  1. Stylised Logo
  2. Ongoing Use and Community Recognition

Stylised logo

According to IP Australia, if a logo depicts a “highly stylised” or “unusual representation” of particular goods, services, or locations, it may be sufficient to satisfy the distinctiveness test.

If a logo portrays a conventional depiction of goods, or includes a map or national symbol, it is not likely that the trademark will be validated. This means that if a business were to use a common geographical place name, they would need to make sure their logo design is highly distinguishable so it is able to be registered as a trademark.

Ongoing use and community recognition

As an alternative to creating a distinctive name or logo, if your business is able to demonstrate that you have used a geographical place name extensively over time, IP Australia may accept the trademark based on ongoing use and community recognition.

This involves submitting evidence to prove you have continuously used the geographical place name in the market for a period of at least three years, and that customers distinguish your goods and services from others in the area on the basis of that geographical name. For more information on the benefits of registering a trademark for building brand awareness and strengthening your business reputation, please see our blog.

How Etheringtons Solicitors can help

A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. If you need further advice or assistance with IP law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

Independent Contractor v Employee

Independent Contractor v Employee

Ongoing structural shifts within the workforce have exacerbated the importance of a clear distinction between employees and independent contractors. Flexible working-from-home arrangements and the rise of the gig economy have attracted the global workforce to a non-traditional means of employment. Greater autonomy and a more sustainable work-life balance are factors which are likely to catalyse the growth of independent contractors, a sector which already accounts for 7.8% of Australia’s total employment (as of August 2021).

Although this broadens opportunities for employers, there have been frequent legal disputes in distinguishing between employees and independent contractors. Fortunately, in February 2022, the High Court handed down a decision which aided in clarifying the nature of independent contracting relationships; ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 (Jamsek).

Who is an independent contractor?

An independent contractor provides agreed services under a contract for those services. Contractors, or subcontractors, usually negotiate their own fees and working arrangements because they represent their own work, not the work that is executed by the business they are contracting for. Although there are many professions which are capable of being performed by independent contractors, the most common examples include freelance writers, graphic designers and auctioneers.

Who is an employee?

Employees on the other hand, are workers who represent the business they are working for. An employee works in the service of the employer under a contract, which establishes work duties and employee entitlements, which must be in accordance with the National Employment Standards.

How does the court differentiate between contractors and employees?

Previously, courts considered the manner in which parties conducted their relationship after the contract was signed. Courts applied a multifactorial approach in determining whether a worker was an employee or an independent contractor. The terms of the contract were relevant but not decisive.

However, in Jamsek, the High Court found that the key differentiation between contractors and employees is to be found within the terms of the contract (whether written, oral or a combination thereof). In Jamsek, the court had significant regard to the nature of legal rights and obligations held within the contracts. Specifically, the court noted that each partnership (provision of delivery services) paid for running costs and expenses of their trucks, and would invoice ‘ZG Lighting’ (the company) for the delivery services provided. By examining these features within the contract, the High Court concluded that these “partnerships” were operating as a business of their own.

How relevant are contracts in determining the relationship between contractors and employees?

The majority decision in Jamsek concluded that the way in which ‘contracts are played out in practice’ is, in most cases, no longer relevant in determining the nature of the relationship. Rather, post-contract conduct is only relevant when identifying relevant contractual terms (where the contract is not wholly in writing), or challenging the enforceability of the contract under the provisions of the Fair Work Act 2009.

It should not be assumed, however, that post-contract performance is entirely irrelevant to the categorisation of work relationships. In particular, it is crucial that parties avoid the following:

  1. Waiving their rights under the contract
  2. Varying their contracts by way of conduct; or
  3. Making representations which may be used to compromise their interests.

Why is it important to distinguish between independent contractors and employees?

The choice between employees or contractors will affect an employer’s tax, super and other obligations. For instance, an independent contractor is not entitled to paid leave and for the majority, pay their own superannuation. On the other hand, employees are entitled to paid leave, are covered under the National Employment Standards and are entitled to a compulsory superannuation provision by their employer. Hence, an ambiguous distinction is likely to create disputes, resulting in severe penalties for employers.

How Etheringtons Solicitors can help?

A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. If you need further advice or assistance with any employment law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

What is the Difference between a Justice of the Peace and a Notary Public?

What is the Difference between a Justice of the Peace and a Notary Public?

A Notary Public and Justice of the Peace are both individuals who offer services in order to verify identity and authenticate true copies of documents. To ensure that you are receiving the most appropriate service, however, it is essential to identify the differences between the two.

What is a Justice of the Peace?

Justices of the Peace (JPs) are volunteers appointed by the Governor of New South Wales and represent all sections of the community. As such, an Australian citizen over the age of 18, who is of good character, nominated by a New South Wales Member of Parliament and meets the other criteria stipulated by Service NSW, is eligible to apply to become a JP. The primary role of a JP involves acting as a witness to the signing of documents such as statutory declarations or affidavits, as well as certifying true copies of documents.

What is a Notary Public?

A Notary Public is a senior solicitor of at least five years, who has been appointed by the relevant Supreme Court of the State or Territory with respect to the Public Notaries Act 1997. A Notary must have completed the Notarial Practice Accreditation program. The role of a Notary Public (sometimes referred to as a Public Notary) has been in existence for approximately 800 years.

A Notary Public can provide a range of services including:

  • Authenticating documents to certify their proper execution so they may be used within Australia or internationally
  • Certifying legal documents such as Contracts, Deeds, Wills and Powers of Attorney which may be used within Australia or internationally
  • Verifying documentation for use in Australia or overseas
  • Administering oaths for the giving of evidence
  • Witnessing statutory declarations
  • Preparing and notarising ship protests.

What is the difference between a JP and a Notary Public?

The main difference between the two is that documents authenticated by a Notary Public may be recognised and accepted overseas. Documents verified by a Justice of the Peace may only be recognised in Australia.

It is also worth noting that JP services are free of charge whereas those of a Notary Public follow a recommended schedule of fees relevant to their State or Territory. Please visit the Society of Notaries of NSW website to learn more about the recommended fees for notary services in NSW.

Who should you go to?

You should go to a JP when you require an authorised person to witness you signing a statutory declaration or affidavit, or when you need to certify copies of original documents for use within Australia. It is important to note that JPs are prohibited from offering legal advice. If a JP provides legal advice and they are not an Australian Legal Practitioner, they will be in breach of the Code of Conduct for JPs in NSW and committing an offence under s14 of the Legal Profession Act 2004 No 112.

If your document needs to be authenticated with legal assistance or for use overseas, you must visit a Notary Public. Whilst Notaries do not always provide legal advice on the document being notarised, they do possess legal expertise which makes them invaluable to guiding clients.

Apostille for use of Notary documents overseas

If your documents need to be recognised and accepted by overseas businesses, governments or courts, you must have your documents legalised by a Notary Public and then apostilled by the Department of Foreign Affairs and Trade (DFAT). Documents certified by a JP will not be accepted by DFAT because JPs are not recognised under overseas law.

Examples of commercial documents that need to be notarised for use outside of Australia include:

  • Overseas trade documents (letters of credit)
  • Contractual arrangements between foreign businesses (transfers of foreign assets, property and land)
  • Matters concerning international trademarks, copyright or patent applications.

Examples of personal documents that require a Notary Public’s action for use overseas may include:

  • The certification of passports
  • Academic transcripts and testamurs
  • Citizenship certificates and consent to travel documentation
  • Probate documents where overseas assets form part of an estate
  • Overseas police checks.

Attending a Notary Public or JP appointment

When attending a Notary Public or JP appointment, the true identity of the person having their documents authenticated must be verified. This means that you will need sufficient identification documents such as your driver’s licence, passport, Medicare card or original birth certificate, to verify your identity.

Additionally, neither a JP nor Notary Public may witness a document that has already been signed. The act of signing must be witnessed by the JP or Notary Public at the time of signature.

A Notary Public must also make an informed decision that the signatory is not legally incapacitated and understands the nature and effect of the document being signed and/or attested. To learn more about Notary Public services, please refer to our website for more information.

How Etheringtons Solicitors can help?

Etheringtons Solicitors provides both Notary Public and Justice of the Peace services in their North Sydney office.

If you require either a Notary Public or JP service, please submit an enquiry using our online contact form or call our office on 02 9963 9800.