Issue 23 - December 2005

• Employers Seminar
• Travel abroad and foreign criminal law
• Wills, powers of attorney and enduring guardians
• Psychological injuries - employers beware
• Changes to the Retail Leases Act 1994
• Client Profile - Ronda Matthews

WMD Seminar Series Employers Seminar

On 6 December 2005, Warren McKeon Dickson Lawyers conducted a joint seminar for employers on the new WorkChoices Industrial Relations reforms which passed through the Senate on Friday 2 December. Our employment partners, Dean Groundwater and Kevin Dwyer, presented an outline of the legislative changes which are set to effect the operations of many employers from their anticipated commencement in April 2006.

The presentation highlighted the implications and opportunities for various business structures including the desirability for all employers to be aware of the changes which will effect their operations and the potential to adjust their operations to take advantage of the many opportunities which the new scheme creates.

We are pleased to report that the seminar, held at the Sutherland Districts Trade Union Club was a success with positive feedback being received on the relevance of the topics, the presentation and the facilities. We trust that the information provided will assist employers in dealing with the pending Industrial Relations changes and employment issues generally.

To discuss how your own business may be effected under the WorkChoices legislation please telephone Dean Groundwater or Kevin Dwyer or email dean@wmdlaw.com.au or kevin@wmdlaw.com.au.

A summary of materials presented at the seminar can be downloaded from the following section of our website - WMD Seminar Series.

Australians must be aware of their legal responsibilities while travelling abroad Travelling abroad and foreign criminal law

With the approach of the Christmas period, you or your relatives may be planning overseas travel. When travelling, you should ensure that you familiarise yourself with the local laws of your destination country prior to departure and that you take every care not to break those laws during your stay.

Upon your arrival in another country, its laws will apply to you. These laws may differ substantially to those that you are accustomed to in Australia. If you are arrested for any reason while overseas, you should ask to contact the Australian Consul immediately.

However, while the Consul may provide assistance such as contact with legal representatives and next-of-kin, the Consul does not have the power to secure the release of Australian citizens.

In particular, the issue of drug offences has been highly topical of late. In this regard, the Department of Foreign Affairs and Trade has issued the following advice to Australian citizens travelling abroad:
Do not purchase, take or travel with drugs

Do not leave your bags unattended or in the care of a stranger

Do not carry anything into or out of another country on behalf of someone else

Secure and lock your luggage to prevent tampering

Prior to travelling, check whether any medication you require contains any substance that is illegal in your destination country. If carrying prescription drugs, it is advisable to take a letter from your doctor as to your need for them.
For further information regarding travel abroad and foreign criminal law, please telephone Greg Dickson or email greg@wmdlaw.com.au. You can also visit www.smartraveller.gov.au

Planning for the welfare of your family and being prepared for unfortunate events  Wills, powers of attorney and enduring guardians

With the current year ending and the new one fast approaching, it is an appropriate time to consider whether your affairs are in order.

Do you have a will? Do you have a power of attorney? Who will make medical decisions for you if you are unable to? Many people are too busy at this time of year or even during the year to think of these things, however, what could be more important than protecting you and your family?

Consider whether your will requires updating due to an addition to your family, an adoption or the death of a beneficiary or an executor. Does your spouse or partner know where all of your important papers are, who your solicitors, accountants and financial planners are?

Also, sadly, the Christmas holiday season brings with it a high incident of theft and natural disasters such as bushfires. Consider whether your insurances are up to date – have you adequately insured your home, contents, car and your life? Have you paid your premiums? Where is the policy and schedule?

If we can assist you in relation to the preparation of your wills, powers of attorney, the appointment of enduring guardians or estate planning generally, please telephone Craig Pryor or email craig@wmdlaw.com.au.

Headaches of industrial proportions Psychological injuries - employers beware

The level of psychological injuries in the workplace is on the increase. Employers can be held responsible for such injuries under the Occupational Health and Safety Laws.

The current Occupational Health and Safety Regulations provide that an employer must provide a “safe workplace”.

The first step is for employers to understand the causes of psychological injuries. The next is to provide a safe working environment that is not conducive to employees suffering psychological injury.

An employer who dismisses an employee on account of their psychological injury leaves themselves open to an unfair dismissal claim. In many cases, provided an employee can perform their basic job requirements, they should not be dismissed. At times this may be hard for an employer to confidently determine and appropriate advice from qualified professionals should be sought.

If you would like further information or advice relating to employer's duties to provide a safe working environment, the dismissal of employees who suffer from psychological injuries or employment law generally, please telephone Kevin Dwyer or email kevin@wmdlaw.com.au.

New obligations for retail landlords Changes to the Retail Leases Act 1994

The Retail Leases Act 1994 (NSW) (RLA) regulates all stages of the relationship between landlords and tenants of retail shops, from the negotiation of terms to the end or transfer of a lease.

As recently as 1 July this year, the RLA was amended to prevent landlords recovering legal fees from their tenants and further changes are set to commence on 1 January 2006. The amendments allow for more transparency in retail lease transactions, with the objective of both landlord and tenant being better informed about what the lease requires of them. Some of the important changes are set out below:

Landlords will be required to provide to all prospective tenants with a copy of the NSW Government retail tenancy guide, as well as a copy of the proposed lease, as soon as negotiations begin.

There have been significant changes to the details to be included in Disclosure Statements. These changes include, amongst others, the inclusion of details of current legal proceedings, the right to a 5 year term, expiry dates of the leases of major tenants in the centre, annual sales and traffic counts for the centre.

The RLA will now apply to tenancies comprised of successive short term leases whose total term exceeds 12 months.

Tenants will be entitled to make written submissions to the auditor regarding the accuracy of outgoings statements.

A maximum amount or formula regarding the amount a tenant must pay for the fit-out of premises must be agreed to before the lease is entered into, and if a certain standard of fit-out is required by the landlord, this must be set out in the lease or disclosure statement.

Retail leases will allow a landlord to be excluded from liability for disturbance to a tenancy, provided a statement regarding the specific disturbance is given to the tenant before the lease is entered into.

Landlords will be restricted from advertising the availability of retail premises before offering those premises to the current tenant or informing the tenant that they do not propose to offer the tenant a renewal of the lease.

A new security bond scheme will be introduced, similar to current requirements for residential bonds. From 1 January 2006, any new cash security bonds must be lodged with the scheme within 20 business days, and from 1 April 2006 any cash bonds for existing leases must be lodged. The bond monies will be held by a funds manager appointed by the NSW Government.

Tenants wishing to transfer their lease must provide their landlord with a statement disclosing key facts about the proposed new tenant, and the new tenant will be required to provide documentation of their financial standing and business experience.

Landlords should ensure that they are well aware of their new obligations as of 1 January 2006 whilst tenants should familiarise themselves with their new rights under the amendments.

If you would like to obtain further information or advice regarding the new rights and obligations for retail tenants and landlords, please telephone Rebecca Flynn or Lauren Austin or email rebecca@wmdlaw.com.au or lauren@wmdlaw.com.au.

Opportunity for newsletter readers Client Profile - Ronda Matthews

This month we would like to introduce one of our clients, Ronda Matthews, who is putting the finishing touches on a pet friendly bed and breakfast facility in the Cessnock area.

Warren McKeon Dickson would like to congratulate Ronda for her long term and tireless work in rescuing neglected and unwanted dogs and finding new homes for them under the organisational banner of “Paws”. "Paws" comprises a small group of self-funded rescuers and volunteer foster carers and walkers whose primary aim is to help lost or abandoned animals in NSW. You can find out more about the work undertaken by "Paws" by following this link - www.paws.com.au.

In addition to her excellent work in finding new homes for these unwanted pets, Ronda’s other passion is breeding and racing horses. We don’t normally provide a “market place” service in our newsletter but we have made an exception due to Ronda’s considerable volunteer work.

Ronda presently has a 2 year old colt by Umatilla out of Jorocca (Octagonal) which will be trained by Don Robb at Wyong, who is a successful provincial trainer who has trained many city winners. The colt will be leased to Don Robb who is syndicating 10 shares – 8 of which are still available. Ronda advises that no upfront capital is required, just the training costs per share. WMD has no interest in this venture other than a wish to see our clients succeed in their business and personal activities. If you would like any further information about the syndicate, please contact Ronda at PO Box 321, Cessnock NSW 2325 or by email at ronda@paws.com.au.

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