Issue 49 - February 2008

• In memory of James John Francis
• Annual leave - base pay and commission
• Building & Construction Industry Security of Payment Act
• New suburb - Caringbah South
• Tray Ramp - "Hard work made easy"
   

In memory of James John Francis

It is with sadness that we note the passing of Jim Francis (normally known as “JJ” to his clients colleagues and friends) on 17 January 2008. 

JJ joined our firm in 1994 when he became a Senior Consultant with us and he remained working with us until his retirement from the Law in 1998.   He will be remembered as a caring, highly skilled and upright lawyer.   The time that he spent with our firm was characterised by dignity, patience and a genuine interest in helping to develop the knowledge and skills of the many young practitioners who have been involved in our firm.

Jim had an encyclopaedic knowledge of every scandal and triumph that has helped shape the law in New South Wales for more than 50 years and his excellent memory and skill in telling a story helped to enliven many of our weekly lawyers meetings.

Jim will be sorely missed by us and everyone who was fortunate enough to be associated with him.

Care to be taken in the calculation of annual leave  Annual leave - base pay and commission

According to the Australian Fair Pay and Conditions Standard (AFPCS) under the Workplace Relations Act 1996 (Cth), accrued but untaken annual leave entitlements paid out upon termination are to be calculated using an employees base salary only.

In a recent NSW District Court case, Brad Mason v Citigroup Pty Limited, it was confirmed that annual leave entitlements under the Annual Holidays Act 1944 (NSW) continued to apply as a notional agreement preserving state awards (NAPSA). Annual leave entitlements are calculated based on ‘ordinary pay’ which includes bonus and incentive payments for employees with a base salary of $144,000 or less.

The fact that Mr Mason’s employment contract included a term which effectively incorporated legislation in force at the time the contract was made (instead of legislation which applies from time to time) meant that he was found to be entitled to annual leave payments calculated with regards to his base salary of $50,000 and the sum of $250,000 he earned via commission. Citigroup has lodged an appeal with the Federal Court.

In the meantime (and until all NAPSAs expire in March 2009) if a company terminates an employee who commenced employment before 27 March 2006 (when the WorkChoices legislation came into force) calculation of payments in lieu of accrued but untaken annual leave must include base pay and commission and bonus payments, unless base pay is over $144,000.

Employees should be aware of possible entitlements and companies should take care to seek legal advice before making payments regarding termination and accrued annual leave. Companies should also look carefully at the wording of employment contracts so that current legislation always applies.

If you require our assistance with respect to any employment related matter, please contact Kevin Dwyer on 9525 8688 or kevin@wmdlaw.com.au.

How to obtain payment in 10 days… Building & Construction Industry Security of Payment Act

The adjudication procedure under the Building and Construction Industry Security of Payment Act 1999 (NSW) provides a quick and relatively inexpensive statutory regime for the prompt payment of monies due between parties to any construction related contract in New South Wales.

The Act applies to contracts between contractors, subcontractors, consultants (including planners, architects, surveyors and engineers) and suppliers, whether written or oral, but not to direct contracts with homeowners, which are covered by the Home Building Act 1989 (NSW).

The process starts by a claimant serving a payment claim on a respondent. The claim must describe the work done or goods provided, the amount claimed and that it is issued under the Act. The respondent then has 10 business days to serve a payment schedule. If this does not occur within the 10 business days, the respondent is liable for the amount claimed. This 10 day period cannot be extended.

If a payment schedule is served that differs from the amount claimed, the claimant then has 10 business days in which to serve an application for adjudication.

If the respondent does not serve a payment schedule or pay the amount stated in the payment schedule by the due date, the claimant can sue in court for recovery of the debt or go to a simplified adjudication process. 

Once served, the adjudicator has 10 business days to make a decision from the date he/she accepts the adjudication application, unless the parties mutually agree to extend the period. The respondent has 5 business days after receiving a copy of the adjudication application to provide the adjudicator with a response, failing which the adjudicator may determine the application purely on the claimant’s submissions.

If the respondent does not pay the amount, if any, determined by adjudicator as owing, the claimant can stop work on giving notice and apply for an adjudication certificate certifying the amount due, including any interest and unpaid adjudication fee and register it as a judgment in a court.

Once judgment is obtained, it can be enforced by way of issuing a writ of execution, obtaining garnishee order or examination summons, serving a bankruptcy notice or a creditor’s statutory demand or even by way of obtaining adebt certificate directing a principal (such as a builder or a contractor) to pay to the claimant the judgment debt from any money due to the respondent.

For assistance in making or defending a claim under the Act, enforcing a judgment or for enquiries in relation to the building and construction industry generally, please contact Craig Pryor or email craig@wmdlaw.com.au

Sutherland Shire's suburb boundaries have changed  New suburb - Caringbah South

The Geographical Names Board has a statutory responsibility under the provisions of the Geographical Names Act 1966 (NSW) to determine definitive boundaries for suburbs and localities throughout New South Wales.

According to the Board’s website, the process of determining boundaries is one of acknowledging existing names and formalising their extent according to common local usage. In approximately May 2007, the Board called for submissions in relation to the naming of boundaries in within the Sutherland Shire Local Government Area.

In the NSW Government Gazette on 18 January 2008, the Board notified its determination in relation to 43 locality names and their boundaries in the Sutherland Shire, namely Alfords Point, Bangor, Barden Ridge, Bonnet Bay, Bundeena, Burraneer, Caringbah, Caringbah South, Como, Cronulla, Dolans Bay, Engadine, Grays Point, Gymea Bay, Gymea, Heathcote, Holsworthy, Illawong, Jannali, Kangaroo Point, Kareela, Kirrawee, Kurnell, Lilli Pilli, Loftus, Lucas Heights, Maianbar, Menai, Miranda, Oyster Bay, Royal National Park, Sandy Point, Sutherland, Sylvania, Sylvania Waters, Taren Point, Waterfall, Woolooware, Woronora, Woronora Dam, Woronora Heights, Yarrawarrah, Yowie Bay.

The position and extent of these address localities are shown on the Department of Lands’ map GNB3721-1 and are recorded and shown within the Geographical Names Register of New South Wales. Of note is the newly named suburb “Caringbah South” which until now has not been an official name despite its widespread and longstanding use in the community.

If you require any assistance in relation to the proper naming of any locality or any other issue, please contact Craig Pryor or email craig@wmdlaw.com.au or contact the head of our WMD Property Group, Rebecca Flynn or email rebecca@wmdlaw.com.au

Watch out for Tray Ramp on the ABC's New Inventors program

 Tray Ramp - "Hard work made easy"

We often take the opportunity to introduce the readers of our newsletter to our clients and contacts who offer services which may be of interest or assistance. This month we introduce Brad White, the inventor of "Tray Ramp."

Tray Ramp is a retractable safety ramp designed for professional tradespersons and individual operators. With safety and convenience in mind, the Tray Ramp enables easy loading and unloading of heavy equipment or goods with out the need for lifting. The Tray Ramp has a load capacity of 350kg with a non-slip mesh tread which complies with Australian Standards (AS 1657).

The Tray Ramp is made from lightweight material and stores neatly under the tray of utility vehicles, therefore not taking up valuable storage space on the tray.

Brad will be featuring on the ABC New Inventors program on Wednesday, 20 February 2008 at 8pm. Be sure to watch the New Inventors program if you require more information. If you miss the program and would like more details visit www.trayramp.com or contact Brad on 0422 940 477.

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