Thursday, 24th of December 2015

 

Issue #2 December

 

TOP STORY

Christmas Greetings from No Borders
 

ISSUES OF THIS MONTH

Time to Give & Time to Love

 

Redundancy, Restructure and Redeployment

 

Minister cannot keep backing heartless decisions of case-officers

 

Real estate agents enter FIRB 'grey area'

 

Fraudsters held 400 passports in bank vault

 

Time to Give & Time to Love

It seems as if it were just yesterday that we celebrated the New Year, followed by Easter of 2015, its now Christmas Eve and the year of 2016 is just on the horizon.

Some of us might have come from Europe, whom perhaps have missed their white Christmas - making snowmen with friends, brothers, sisters and cousins in sub zero temperatures.

Some of us might have come from Asia – missing the rush hour in shopping centres and the gathering in the heart of the city, regardless if they are Christian or non-Christian.

Some of us might have come from the safari of Africa, surrounded by the wilderness and blessed by the close encounter with nature.

But we are all here now, in a peaceful land – Australia. There is only a scorching hot Christmas here, sometimes accompanied by a random storm for the festive season. Most importantly it comes with a community that has a big warm heart to help us through the storm that is our life.

So let us bring the loved ones closer to share the joyous feelings and to say the words “I Love You”!

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Redundancy, Restructure and Redeployment

redundancy-restructuring

For companies and employers considering restructuring prior to Christmas or early in the new year, there are many issues to consider.

The Fair Work Act 2009 (Cth) is prescriptive at some level, for example the amount of redundancy pay that is payable to employees.

A recent case, Troy Brown & Ors v Clermont Coal Pty Ltd [2015] FWC 3862 (Brown Case) has given more scope for managerial prerogative where there is a mix of workers who are employees, labour hire staff and contractors. In particular, the Brown Case has given employers the ability and right to reasonably implement a restructure wherein positions held by employees may be terminated even though there are contractors and labour hire staff engaged in other areas of the business.

The Brown Case explored the mining industry in this context however, in our view the decision could be implemented for other industries which regularly engage labour hire and contractor workers in different parts of the business such as manufacturing, warehouse and construction.

To be clear, the Brown Case does not change the fact that for there to be a genuine redundancy (and therefore avoid amongst other things an unfair dismissal claim), it is the position which must be made redundant and therefore as a consequence the employee that held the position.

In the Brown Case, the employer undertook a restructure of 76 employees and 25 contractors/labour hire workers. Six of the employees made an unfair dismissal claim, claiming that the redundancies were not genuine – there contention was that they could have been redeployed in other positions which were held by contractors and/or labour hire workers.

It was established generally that the employees would have been able to perform the duties of the positions held by the contractors and/or labour hire workers.

The decision by Vice President Catanzariti found that the redundancies were genuine and it would not have been reasonable to expect that they be redeployed into roles (even with associated entities) which were already filled by contractors and/or labour hire workers.

In recognising both the right to restructure and the right to structure its business in whatever fashion it saw fit, Vice President Catanzariti held the following views:

  • The Fair Work Commission should not be criticising the legitimate business model of an employer which may or may not engage a mixed work force inclusive of contractors and/or labour hire workers; and
  • In cases where there is a legitimate operational strategy to engage a mixed workforce, the Fair Work Commission should not require a change to the strategy.

The Brown Case confirms that an employer still has managerial prerogative to make decisions about the way a business should be structured.

The Brown Case gives employers several ways forward in considering a mixed workforce business model and still enter into restructures legitimately. Caution should prevail however, with redundancies it is very easy to be perceived to be terminating an employee’s employment to engage contractors in their place. The Brown Case does not go this far and advice should be sought immediately if this is the plan.

Some tips to consider:

  • Redundancies need to be genuine (and not for other nefarious purposes such as performance issues or other bias);
  • Minimum redundancy pay is prescribed under the Fair Work Act 2009 (Cth) (some limited exceptions apply);
  • A mixed workforce model should not deter an employer from making certain positions redundant if required;
  • Be able to present your business case – of a mixed workforce or the use of a mixed workforce;
  • Always consider redeployment;
  • Most Modern Awards have consultation provisions for redundancies – it is important that a consultation step (or several) is taken.

For further information please contact Jonathan Mamaril, Principal on 07 3876 5111 or email jonathanm@nb-lawyers.com.au or visit our website www.lawyersforemployers.com.au.

Written By
Jonathan Mamaril, Principal & Director, NB Lawyers
07 3876 5111
LAWYERSFOREMPLOYERS.COM.AU

 

Minister cannot keep backing heartless decisions of case-officers

Australian Immigration inister cannot back heartless decision

Was it the Christmas spirit or unrelenting media pressure and public backlash that led the Immigration Minister to reverse a decision not to grant a visitor visa to the mother of a Pakistani student dying of cancer in Melbourne?

Immigration Minister Peter Dutton yesterday allowed the mother of Hassan Asif to be with her 25-year old son in Australia in, what doctors say are likely to be, the last few days of his life.

The high commission in Islamabad last week refused Mr Asif's mother and brother's application to visit Australia on the grounds they were a flight a risk and would not return home.

The decision was made despite being aware that the young Melbourne student was suffering from terminal skin cancer. Mr Dutton, first stood by the decision saying it could cost the Australian public millions if the visitors did not return home after the visit.

Speaking to the ABC after hearing the news of the minister’s change of heart, Sherri Bruinhout, from Melbourne City Mission which is providing Mr Asaf pallative care, said "[Hassan] is over the moon.

It was a terrible day last Friday when he heard the decision that the Immigration Department had denied the visa and he was absolutely devastated as was his family so you can imagine the absolute delight when the news came through that the visa had been issued and there were lots of tears all around...Tears of happiness."

 

Real estate agents enter FIRB 'grey area'

real-estate-agents

Real estate agents could find themselves liable for breaches of foreign investment laws on residential property when new rules kick in next month, property lawyer John Turnbull says.

While strengthened Foreign Investment Review Board rules - which come into effect from December 1 - specify civil penalties of up to $45,000 for individuals and $225,000 for companies that "knowingly" permit foreign investors to breach rules, the definition of "knowingly" was unclear, said Mr Turnbull, a Mills Oakley partner.

If a purchaser stated they were not a resident and did not have permission to buy an established property, it was clear an agent who then sold that property had knowingly assisted them. But how far an estate agent had to go to ask a purchaser about their legality when they did not volunteer that information was unclear, Mr Turnbull said.

"If someone doesn't tell you that, do you have to start asking personal questions?" he told The Australian Financial Review. "That's going to be the hard bit. Just sitting back and not asking too many questions, maybe that's not 'knowingly'. It's still going to be a grey area until there's a prosecution of somebody."

Treasurer Scott Morrison on Wednesday said he had issued forced divestment orders on over $9.7 million-worth of residential real estate, including a $5.2-million mansion in Melbourne's Hawthorn East purchased by Chinese businessman Li Jian Guo in March last year. While an amnesty until the end of this month permits owners of properties bought in contravention of Foreign Investment Review Board (FIRB) rules to sell them and avoid prosecution, the enforcement of laws and prosecution under them is about to become tougher.

Gerald Delany, the chairman of Melbourne estate agency Kay & Burton and the person who last year conducted the auction in which Mr Li bought the 6 Higham Road property, said his agency had "always assumed" Mr Li was entitled to acquire it. Nothing the agency had done assisted Mr Li to break the law, Mr Delany said.

"A gentleman attends an auction, bids, signs a contract and pays a deposit," Mr Delany said. "The deposit gets cleared within the prescribed time and he settles. There are no obligations over and above that. There is no assistance being given to that person to flaunt the laws."

Lawyers and financiers acting for buyers had the responsibility to ensure their clients were qualified to make a purchase, but real estate agents couldn't demand that information, he said.

"As agents we can't… ask for passports or delve into qualifications of who they are," Mr Delany said. "That's something that is a personal issue."

Mr Delany said, however, he would be happy to comply with the rules if they changed.

Malcolm Gunning, president of the Real Estate Institute of NSW, took a different line and said the industry already had a role to play. Real estate agents should ensure buyers were entitled to acquire a property, even at auctions, he said.

"I don't think that's unreasonable," Mr Gunning said. "If they're knowingly doing it, they deserve to get fined. Pleading ignorance when you're being paid a $30000 fee doesn't wash very well."

Responsibility was spread across the chain, Mr Gunning said.

"A lot of the misinformation or misguided information is coming from lawyers, financial planners, migration agents and, in some cases, the real estate agents and property spruikers," he said.

Mr Delany said Mr Li had requested Kay & Burton to sell the Higham Road property six weeks ago. It was passed in at auction on Saturday for $5,525,000 but they had since received a higher offer and hoped to sell it soon.

"He didn't give us instructions to sell because of this issue," Mr Delany said.

Mr Turnbull said regulators were likely to bide their time before prosecuting any real estate agents for knowingly helping a buyer evade the law.

"They'll pick out a high-profile person," he said. "It's done by finding someone fairly high profile, prosecuting them and sending a message to the industry."

 
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Fraudsters held 400 passports in bank vault

fake passports for Australia Visa

Indian police have arrested at least 5 people and charged them with various offenses relating to defrauding hundreds of people by promising them visas to Australia and New Zealand, according to media reports from India.

Police have seized some 400 passports held by Royal Education Consultants in Jalandhar, a city in the northwest of Punjab, India. The passports belonged to people from various districts across Punjab and Chandigarh who paid thousands of dollars on the promise of receiving ‘work permits’ and student visas for Australia and New Zealand.

Media reports estimate the fraud committed by the firm could amount to ‘crores of rupees’ (a ‘crore’ which is 10,000,000 rupees is equivalent to about AU$210,000.)

Police suspect that some of the passports are fakes and are in the process of verifying the authenticity of all the travel documents.

The company’s owner, Gangandeep has absconded but several of his employees have been arrested and charged with cheating, breach of trust and forgery.

One media report alleges that some employees who have avoided arrest are working with other immigration firms in India and cite a case where a victim of the fraud was assaulted for asking for his money-back.

 
 

We hope that you have found the information in this issue of our newsletter to be enriching and useful. Stay tuned for our next publication and if you would like to talk to us directly, please do not hesitate to email service@noborders-group.com. In addition, if you would like your contact details updated or removed from this distribution list or you know someone who would like to be added, please email us on the same address.

"The only limits to being the person you truly want to be are your own self-limiting beliefs and thoughts. In every moment, you have the power to choose your life"

 
 

No Borders Group

Email: service@noborders-group.com
Phone: (+61) 07 3876 4000

 
 

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