Issue 22 - November 2005

• WorkChoices legislation passed by House of Representatives
• Ennis Smith & Bradbury - our new Batemans Bay branch office
• Family loans - to secure or not to secure?
• It is important to be aware of the by-laws which apply to a strata scheme
• Employer liability at work Christmas parties

How does the new Federal Workplace Relations System affect you? WorkChoices legislation passed by House of Representatives

The Federal Government's publicised industrial relations reforms have now been passed by the House of Representatives and will, if passed by the Senate, overhaul the Australian industrial relations system.

We have prepared a report on the changes which you can access by clicking here - Download the WMD WorkChoices Report. Once the legislation has been passed by the Upper House in its final form we will issue a further report which will be placed on our website.

For more information about how the new national workplace relations system may affect you or your business, please telephone Dean Groundwater or Kevin Dwyer or email dean@wmdlaw.com.au or kevin@wmdlaw.com.au.

We are proud to announce the opening of our Batemans Bay branch office Ennis Smith & Bradbury - our new Batemans Bay branch office

For a number of years, we have enjoyed a close working relationship with South East Coast Conveyancing Pty, a legal and conveyancing firm in Batemans Bay. From 1 December 2005, the legal work conducted from the Batemans Bay practice will be under the control of our new Batemans Bay office, trading as "Ennis Smith & Bradbury".

Joe Smith, a former partner of Ennis Smith & Bradbury and the solicitor-director of South East Coast Conveyancing Pty, has agreed to remain as a senior consultant to the firm to ensure that there is a smooth transition of all matters. Our senior partner, Bob Warren, has been practising at our Miranda office and also at the Batemans Bay office for a number of years and will be the partner primarily responsible for the day to day conduct of the Batemans Bay office.

We are looking forward to working with Joe Smith and also with the other members of the team at South East Coast Conveyancing Pty including Gayle Ferrier and Cheryl Batchelor.

If you would like more information about our Batemans Bay practice, please telephone Bob Warren or email bob@wmdlaw.com.au.

Parents can secure funds lent to their children Family loans - to secure or not to secure?

Many parents wish to lend money to their children to assist in the acquisition of a home, a car or even to deal with a business matter. However, you need to ensure that the loan is properly documented, particularly if there is a chance that one of the parties will become bankrupt or if there is a possibility of a divorce.

Simply shaking hands and hoping for the best is not wise. The preparation of a loan agreement is advisable as it clearly sets out the obligations of each party, if there is a responsibility to pay interest and what constitutes an act of default. This can become important in the event of bankruptcy or divorce as the amount loaned may be able to be taken out of the asset pool available to a trustee in bankruptcy or a spouse.

Most loan agreements provide for the ability to lodge a caveat on title as security for the the loan however, this will not affect a trustee or the Family Court from utilising that asset. The best approach is to have the security under the loan agreement take the form of a registered (or registrable) mortgage or possibly a second mortgage with the primary lenders' consent. Taking security for the loan also increases the likelihood that the Family Court will not set aside the loan in a divorce settlement. Recent changes to the Family Law Act enable the Court to change or set aside loans to and from married couples. The chance of this happening is minimised if the loan is properly documented from the beginning.

A mortgage security will usually allow the lender to sell the property upon default, subject always to the rights of any prior lender. Default could be defined in the loan agreement to include divorce or bankruptcy.

If we can assist you in relation to any loan, finance or mortgage matters, please telephone Craig Pryor or email craig@wmdlaw.com.au.

It is important to be aware of the by-laws which apply to a strata scheme Changes to by-laws arising from the Strata Schemes Management Regulation 2005

The regulations which govern strata schemes in New South Wales have been amended 3 times this year and new regulations, the Strata Schemes Management Regulation 2005, are now in force.

Some of the most important changes brought about by the regulations relate to by-laws - the rules which govern the behaviour of owners and occupiers in a strata scheme.

An owners corporation may register its own by-laws, or it may adopt the Schedule 1 By-laws (for schemes registered prior to 1 July 1997) or the Model By-laws (for schemes registered on or after 1 July 1997). Regardless of whether the scheme was registered before or after 1 July 1997, the owners corporation has the power to amend the by-laws for the strata scheme from time to time.

The following changes to the by-laws, which are contained in the new regulations, will affect only those schemes which were registered on or after 1 July 1997:

The model by-law in relation to cleaning of windows and doors has been amended so that owners of individual lots are now responsible for the cleaning of all internal windows and all external windows which they can safely access. The owners corporation is only responsible for the cleaning of external windows and doors which the owner or occupier cannot access safely.

The model by-law in relation to moving furniture and other objects through common property has been deleted and accordingly there is no longer a by-law to deal with these issues. Owners corporations may wish to consider registering a special by-law to deal with the issue of how and when furniture and other items may be moved through the common property.

There is a new model by-law which requires an owner or occupier to give the owners corporation at least 21 days notice of any proposed changes to the floor coverings or surfaces of the lot if it is likely to increase the noise transmitted from that lot to any other lot.

The model by-laws in relation to garbage disposal have been amended to provide that an owner or occupier of a lot must comply with the relevant local council's requirements for storage, handling and collection of garage, waste and recyclable material and notify council of any loss or damage to its receptacles. The by-law also permits the owners corporation to post signs on the common property regarding council's requirements for handling garbage, waste and recyclable material.

A new model by-law now applies which gives an owners corporation the ability to require owners to comply with other laws applicable to the use of the lot, such as planning law requirements through the usual strata schemes procedures of notices to comply, mediation at the Office of Fair Trading and orders and penalties in the Consumer Trader and Tenancy Tribunal.
If you require any further information in relation to the effect of the new regulations, or any strata matter in general, please telephone Rebecca Flynn or email rebecca@wmdlaw.com.au.

Liability for employers arising from Christmas functions Employer liability at work Christmas parties

All employers need to consider the potential hazards which may arise when holding an office Christmas Party. An employer may be held liable for injuries of employees travelling to or from a work function as well as any injury arising from the behaviour of employees during celebrations. "Injuries" includes suffering from harassment or intimidation, unwanted sexual advances or being subjected to offensive language. All employees attending the party should be made aware of their responsibilities and what is considered appropriate behaviour.

Employees should be made aware that a Christmas party is a work activity, and as such, normal disciplinary procedures will apply in the event of any harassment.

Employers must also ensure that all health and safety requirements are met by inspecting the function venue prior to the party. A risk assessment should be conducted to identify and eliminate any potential hazards, bearing in mind that attendees may be under the influence of alcohol.

Only qualified personnel are permitted by law to serve alcohol, as required by the responsible service of alcohol regulations. It is sensible for employers to issue advice to employees prior to any party about the risks of drink driving. Employers may also wish to organise a mini bus or make available details of a local taxi organisation in an attempt to ensure employees enjoy their night and return home safely.

Workplace policies covering harassment, discrimination, alcohol and drug use, dress code and acceptable behaviour and disciplinary procedures would assist to minimise the potential liability for employers. All employers should have such policies in place for their ongoing protection.

For further enquires regarding employment policies or employer's liability, please telephone Kevin Dwyer or email kevin@wmdlaw.com.au.

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