Issue 43 - August 2007

• Occupational health & safety and the employer’s duty
• Protect yourself, start a second business
• Compulsory family dispute resolution
• Statutory rights in relation to refunds and warranties
• The Verdict
• Business Succession Seminar

Are you doing enough to ensure the safety of your employees? Occupational health & safety and the employer’s duty

Two recent decisions of the Industrial Court of NSW involving employee fatalities have highlighted the duty of employers to ensure safety in the workplace. Employers are obliged to eliminate unsafe work practices, even where such practices are accepted industry norms.

In Inspector Stephen Gill v Wayne Thomas Fisher & Ors [2007] the Court fined an employer company $60,000 and two of its directors $10,000 each after an employee who was performing shunting work on a moving train fell and suffered fatal injuries. Although the Court accepted evidence that it was normal industry practice for workers to ride on moving trains while shunting, it held that this was not a defence.

Similarly, in Inspector Mulder v South Coast Equipment Pty Ltd [2007] an employer was fined $220,000 after a worker was electrocuted and killed while completing a welding job in low level damp conditions. While the Court accepted the fact that the industry is not generally aware of the risk of low level dampness and electrocution, it found that the employers risk assessment prior to the job was insufficient.

The implications for employers resulting from these two cases are enormous. An employer cannot rely on accepted industry practices and norms when it comes to the safety of its employees. All employers must ensure they conduct appropriate risk assessments and remove any foreseeable risks.

If you would like any further information regarding the duties of employers or have any concerns in the area of occupational health and safety, please contact Kevin Dwyer or email kevin@wmdlaw.com.au.

Don’t keep all of your eggs in the one basket Protect yourself, start a second business

It is good business practice to keep the ownership of the premises at which a business is conducted separate from the ownership of the business itself – essentially, to have 2 separate, although intimately related, businesses. The first business is that which owns the premises and the second is the main operating business, which leases the premises from the first business.

There are many reasons why adopting a simple structure such as this can be beneficial, including for risk protection and succession planning reasons. If, for example, a risky business such as a restaurant were to become insolvent and cease trading, the assets of that business might be available to creditors leaving the assets of that business exposed. The fact that the property is owned by a separate business means that the property is not available to those creditors and is, in effect, protected.

Another example is where a business owner wishes to introduce a new party into the business. That new party could buy into the business without having to buy an interest in the premises at which business is operated. This may be beneficial as the cost of buying into both may prevent the owner from gaining new business partners and growing the business, the original owner may have tax benefits such as those associated with capital gains tax and it leaves the business owner with an income producing asset upon retirement from the main business.

If we can assist you in relation to the establishment of any new business structures or reviewing your current structure, please contact Craig Pryor or Dean Groundwater or email craig@wmdlaw.com.au or dean@wmdlaw.com.au.

New Rules require pre-court action before going to the Family Court Compulsory family dispute resolution

From 1 July 2007, courts are not be able to hear an application for a parenting order in a new case unless the person seeking the order first obtains a certificate under Section 60 of the Family Law Act from a registered Family Dispute Resolution practitioner.

The purpose of this new requirement is to ensure that non-litigious methods of trying to overcome disputes have been fully explored before action is commenced in the Family Court.  There will be some exceptions to the requirement to have this intervention before going to court but these exceptions mainly relate to cases of family violence or child abuse.

This legislation will not alter the way in which we conduct family law matters for our clients because our approach has always been to try to resolve the matter without resort to litigation if at all possible.  The purpose of the new rules is to compel all parties to try these methods first.  For more information about the new Family Dispute Resolution procedures or any family law or defacto law questions, please contact Greg Dickson or Kevin Dwyer email greg@wmdlaw.com.au or kevin@wmdlaw.com.au.

Do you know your consumer rights? Statutory rights in relation to refunds and warranties

All consumer purchases come with a set of implied rights which are set out in the Trade Practices Act 1974 and the common law.

Refunds
Consumers have the right to seek a refund on any goods purchased if it:

Does not meet a basic level of quality and performance considering the price and description;
Is not fit for its purpose; or
Does not match the description or sample provided.
The right to seek a refund applies to both new and second hand goods and may be exercised by a consumer despite “no refund” store policies. There is no statutory right to a refund for services, even if they were not carried out properly.

Warranties
Most consumers are aware of extended warranties, store warranties or money back guarantees provided by retailers or manufacturers. These are referred to as express warranties. Statutory implied warranties apply irrespective of express warranties. Rights covered by statutory warranties include:

That the seller has undisputed ownership of the goods;
That any service you buy will be carried out with due care and skill;
That services and associated material have are fit for their purpose.
If these rights are breached, you may be able to have the goods repaired or replaced, or seek payment for the cost of repair, replacement or re-supply of the goods or services.

The Australian Competition and Consumer Commission (ACCC) have recently released a set of flyers outlining consumer rights in relation to refunds and warranties. These flyers are available from the ACCC website, www.accc.gov.au.

If you require any further information in relation to your consumer rights please contact Dean Groundwater or Melissa Grant or email dean@wmdlaw.com.au or melissa@wmdlaw.com.au.

Your questions answered  The Verdict

In this section, we answer your general questions in relation to any area of law. Obviously, we are not able to provide specific legal advice or advice in relation to a current legal matter. If you have a question you would like us to answer, please submit it by email to rebecca@wmdlaw.com.au.

Does the exemption from mortgage stamp duty, which starts on 1 September 2007, apply to a refinance?

New changes introduced by the New South Wales budget will mean that from 1 September 2007, no stamp duty will be payable on a mortgage for owner occupied housing. The exemption will be extended to mortgages for investment properties from 1 July 2008.

An mortgage is for owner occupied housing if the advance is to be applied wholly or predominantly for:

financing the acquisition of a residence,
financing the construction of a residence,
financing alterations or additions to a residence,
financing the acquisition of residential land,
repaying another advance, if the advance to be repaid was made for the purpose of owner occupied housing.
Accordingly, a new mortgage, or a refinance of a mortgage, for owner occupied housing will be free from duty with effect from 1 September 2007.
For further information regarding these new stamp duty exemptions please contact Rebecca Flynn or see our July Newsletter.

Expressions of interest Business Succession Seminar

We are often asked to advise our clients in relation to business succession and planning issues. In an effort to ensure that our clients and readers of this newsletter are well informed about the options available, and the risks to be aware of, we are planning to host a business succession seminar in the near future.

We propose that the seminar will cover the following areas:

Why you should make a succession plan for your business;
How to develop and implement a succession plan; and
Estate planning (and its relationship with business succession)
If you would be interested in attending the seminar, please email Melissa Grant at melissa@wmdlaw.com.au with your expression of interest.
 

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