Issue 28 - May 2006

• Probation periods and unfair dismissal claims
• Smoke alarms now compulsory in NSW
• Testamentary trusts in your will
• REVS - the Register of Encumbered Vehicles (and Boats)
• Changes to the Family Law Act Now Passed

Extended probation periods now permitted Probation periods and unfair dismissal claims

Under the Workplace Relations Act 1996, employees are excluded from bringing an unfair dismissal claim (and from claiming that they had not been given sufficient notice of termination) if they are serving a period of probation. Prior to the WorkChoices amendments a probationary period could be put into a contract for a period up to 3 months unless a longer period was reasonable due to the nature and circumstances of their employment.

The WorkChoices reforms permit a 6 month probationary period for employees covered by those reforms whose employment commenced on or after 27 March 2006. Importantly, there are many employees to whom the changes do not apply. Further, the period is not implied and must be specifically stated in an employee's contract of employment.

In some circumstances it is possible to include a probationary period clause in the new employment contract of a previously casual employee.

If you would like further information regarding your employees or incorporating the new WorkChoices legislation, including probationary periods, into your contracts of employment, please telephone Kevin Dwyer, Dean Groundwater or email kevin@wmdlaw.com.au or dean@wmdlaw.com.au.

Vendors now obliged to provide a statement regarding the presence of smoke alarms Smoke alarms now compulsory in NSW

Smoke alarms are now a compulsory fixture in all NSW homes. From 1 May 2006, all NSW residents must have at least one working smoke alarm installed on each level of their home. This includes owner occupied, rental properties, relocatable homes or any other residential building where people sleep.

There are several types of smoke alarms available. The Environmental Planning and Assessment Amendment (Smoke Alarms) Regulation 2006 requires that you purchase a smoke alarm that has been tested as compliant with Australian Standards (AS3786).

The Conveyancing (Sale of Land) Amendment (Smoke Alarms) Regulation 2006 commenced operation on 1 May 2006 and has specific implications for the sale of premises in NSW. A vendor under a contract for the sale of land is now required to attach to the contract a statement that any building situated on the land concerned complies with Div 7A of Pt 9 of the Environmental Planning and Assessment Regulation 2000 (which relates to the obligation of owners of certain buildings to install smoke alarms (or in certain cases heat alarms)).

The Regulations prevent an inaccurate statement to a contract for the sale of land from being a ground on which the contract may be rescinded by the purchaser, however the failure to attach such a statement to the contract will be grounds for the purchaser to rescind from the purchase.

Although an inaccurate statement attached to a contract is not a ground of rescission, a vendor who attaches an inaccurate statement to such a contract is guilty of an offence carrying a maximum penalty of 5 penalty units (currently $550).

If you would like more information about vendor obligations relating to smoke alarms or in relation to selling your property generally, please telephone Gina Haramis or email gina@wmdlaw.com.au.

The best time to get your estate planning affairs in order is ... right now Testamentary trusts in your will

As the saying goes, the best time to get your estate planning affairs in order is … right now.

Combined with the confronting statistic that an estimated 40% of Australians do not have a will at all, to be effective, a modern will often needs to deal with matters not historically covered by “simple wills” such as superannuation and life insurance proceeds, business assets, certain shares in private companies and family trusts.

If you consider that your personal or business affairs may involve one or more of these issues, you should seek legal advice on the benefits that may be gained from using a testamentary trust in your will so that your beneficiaries are shielded as much as possible from such life events such as divorce, bankruptcy and other disabilities. In simple terms, a testamentary trust is a trust established by a will, and may be optional (whereby the beneficiary can choose not to use it), discretionary (to decide who will benefit), a fixed trust or a combination or these types.

You may have heard that testamentary trusts are becoming increasingly popular in modern wills due to the taxation and asset protection advantages they can offer by comparison to a simple, old-fashioned will, for example by reducing personal income tax by splitting income from any inherited investments between a range of family members on lower tax rates.

Whilst a simple will may continue to be sufficient for some people, it is likely that a testamentary trust can offer your beneficiaries more flexibility in dealing with their inheritance depending on their own needs and financial circumstances at the time of your passing. Of course, the trust may also be drafted so that the beneficiary does not need to use the trust at all, if they choose not to do so.

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

The public is deemed to have knowledge of the state of the register at all times REVS - the Register of Encumbered Vehicles (and Boats)

REVS or the Register of Encumbered Vehicles was established in 1986 by the Registration of Interests in Goods Act 1986. The Act only operates in respect of certain nominated goods. At present, the only goods affected by the Act are motor vehicles and boats less than 24 metres in length.

The Act deals with the rights of people who buy and sell nominated goods that are subject to a financial interest. The financial interests covered by the Act include all types of securities including bills of sale, chattel mortgages, hire-purchase arrangements, leases and licences.

REVS is the statutory public register which holds information about motor vehicles and boats that have been used as security for a loan from a bank, finance company or other credit provider. The role of the Register is to deem knowledge of the financier's interest in the nominated goods in the public. The community is deemed to have knowledge of the state of the register at all times.

REVS is a register of financial interest. It is not a register of title as is the Torrens Title Register for real property in New South Wales. The general effect of the Act is that a financier can recover goods (if noted in the Register) in which it has an interest no matter who has purported to buy them. That is, the financier's interest (if noted in the Register) takes priority over subsequent purchasers and unless the debt is paid, the financier can repossess the goods.

Inquiries about information recorded on the Register may be made by telephone, over the counter, in writing or via REVS' website. However, advice given by the Register does not have the same legal guarantee as the issue of a Search Certificate (charges apply).

If you would like further information regarding bills of sale, chattel mortgages or the REVS system, please telephone Craig Pryor or email craig@wmdlaw.com.au.

The introduction of "Shared Parenting" Important Changes to the Family Law Act Now Passed

The Family Law Amendment (Shared Parental Responsibility) Bill 2006 was passed by the Federal Parliament on Wednesday, 10 May 2006.

We wrote in an earlier newsletter article about the changes which were likely to occur in parenting orders under the Family Law Act if this Bill became law as expected. The changes will commence on 1 July 2006. The changes to the law involve:

1. Requiring the court to have regard to a completely new range of tests about what is in the child’s best interests in looking at which parent or parents the child should reside with;

2. Changing the terminology normally associated with residence and contact (these terms will no longer apply);

3. Providing clearer direction on what will happen if a parent breaches parenting orders;

4. Expanding the jurisdiction of the Federal Magistrate’s Court.

These changes will apply to all parenting cases which are before the Family Court but not concluded as at 1 July 2006 and all cases which commence after 1 July 2006.

We recently conducted a seminar on these changes as we have been tracking the progress of the bill from its inception. If you require any information concerning the operation of the Family Law Act concerning parenting or any other family law or de facto law issues please telephone Greg Dickson or Kevin Dwyer or email greg@wmdlaw.com.au or kevin@wmdlaw.com.au

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