Issue 55 - August 2008

• The legal implications of the Sonny Bill saga
• Applications to the Guardianship Tribunal
• Take care in selecting an executor or trustee where children beneficiaries are under 18
• Labor government introduces workplace reforms
• Appointment of Senior Associate
• The Verdict

Employment law and commercial litigation will come into the spotlight  The legal implications of the Sonny Bill saga

The decision by Sonny Bill Williams to walk out on a 4 year, $450,000 a season contract with the Bulldogs to play Rugby Union in France has created a number of interesting legal issues that require both consideration and explanation.

Firstly, there is the injunction that the Bulldogs and the National Rugby League (NRL) immediately sought from the NSW Supreme Court following Sonny Bill’s departure to prevent him from breaching the terms of his contract by playing for another club while his contract with the Bulldogs is still on foot.

In considering whether to grant an injunction, the Court considers such factors as whether the contract is still on foot, whether the contractual terms are valid and enforceable or whether the terms are void as clauses in restraint of trade. Above all else, the restraint imposed by the employer's injunction must be a reasonable restriction of the employees activities.

On Friday, 8 August 2008, the NSW Supreme Court considered the above factors and ordered an interim interlocutory injunction effectively preventing Sonny Bill from playing Rugby Union and leaving him liable to being held in contempt of court if he takes the field for Toulon. It would seem that Sonny Bill avoided service of the injunction on him prior to taking the field for his first game. This is only a temporary drawback for the Bulldogs and the NRL.

However, because Sonny Bill is now outside the jurisdiction of the NSW Supreme Court a further legal hurdle arises regarding the international enforceability of the injunction. While Australia and France generally enforce the judgments of the other, enforcement of the injunction will ultimately be a matter for the discretion of the French courts. It is possible that the French courts may take the view that enforcing the injunction would be against French public policy as it prevents a person from carrying on their trade.

In response to this injunction, Sonny Bill has threatened to challenge the legality of the NRL’s salary cap. This raises another legal implication with any challenge likely to come on 2 bases:

that the salary cap represents an unreasonable restraint on players’ freedom of contracting;
that the salary cap is in breach of the Trade Practices Act 1995 (Cth)(TPA).
On the surface, it appears that the TPA argument is more plausible. The argument here is that the salary cap system is effectively a cartel arrangement between the clubs and the NRL, which artificially depresses players’ salaries by maintaining a closed shop in the market for players’ services. If this argument were successful, it could have far reaching consequences for the NRL.

With the injunction now in place it will be interesting to see if Sonny Bill and his legal representatives make good on their threat to challenge the NRL’s salary cap. Whatever happens, the Sonny Bill saga has certainly uncovered a number of complex legal issues in the areas of employment law and commercial litigation that will have considerable implications for NRL players considering breaking their contracts.

If you require assistance in the area of employment law, please contact Kevin Dwyer or email kevin@wmdlaw.com.au. For assistance in the area of commercial litigation please contact Dean Groundwater or email dean@wmdlaw.com.au.

* For further information please visit www.mondaq.com/article.asp?articleid=64404&email_access=on

What are financial managers and guardians Applications to the Guardianship Tribunal

The Guardianship Tribunal, established under the Guardianship Act 1987 (NSW), makes decisions in relation to the appointment of guardians and financial managers for those who live in or who have property in New South Wales and who do not have the capacity to make their own decisions.

A Guardian is a legally appointed person who can make lifestyle decisions for a person who is unable to make such decisions. Such decisions include that person’s accommodation arrangements, medical and dental treatments and the like. Guardians are usually appointed for specified periods of time, initially one year however they can be extended to 3 years or even 5 years in special circumstances. Reviews may also result in the order being dismissed or varied, limiting or altering the scope of the Guardian’s role.

A Financial Manager is a legally appointed person who can make financial decisions for a person who is unable to make them due to disability or mental incapacity. The Tribunal can appoint a person and/or the Protective Commissioner as a financial manager, either separately or jointly. 

If the person’s financial or lifestyle decisions can be made informally in the person’s best interests, the Tribunal will not appoint a financial manager or a guardian, subject to the evidence to be put before the Tribunal.

In addition to making Guardianship Orders and Financial Management Orders, the Guardianship Tribunal can review enduring powers of attorney, their operation and effect and can replace an attorney or declare that an enduring power of attorney is invalid. The Tribunal can also decide to convert the review application to an application for financial management and appoint a financial manager.

For assistance in relation to making or opposing an application in the Guardianship Tribunal or in relation to the affairs of a family member or friend, please contact Craig Pryor or Kara Yacoubian or email craig@wmdlaw.com.au or kara@wmdlaw.com.au.

Considerations for divorced or separated parents Take care in selecting an executor or trustee where children beneficiaries are under 18

When a married or de-facto couple separates, it is common for them to look to their wills to make sure that the testamentary plans they have previously laid down accord with their new direction in life. Often, an earlier will might have made provision for the now separated spouse and it frequently occurs that the will is changed to benefit the children directly.

Great care should be taken in the choice of the executor or trustee named in your will if you have children who are still minors. This is because most wills contain a power of advancement that enables the trustee or executor to provide money for the education, welfare and advancement in life of the child.

If, after the death of the will-maker, the children are living with the ex-spouse, it can sometimes be difficult for the trustee to know whether the estate’s funds are being unfairly called upon to meet expenses for the children that should properly be shouldered by the surviving parent with whom the children are living. This can require strength of character and commonsense judgment on the part of the executor in managing the estate money for the benefit of your children.

If you need assistance in estate planning, please contact Greg Dickson or Jayne Humphreys or email greg@wmdlaw.com.au or jayne@wmdlaw.com.au.

The Workplace Relations Amendment (Transition to Forward with Fairness) Act Labor government introduces workplace reforms

The Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 (Cth) introduces the Rudd Government’s first phase of labour reforms. The principal changes introduced by the Act, which received assent on 25 March 2008, are:

the abolition of new Australian Workplace Agreements (AWAs) with existing AWAs remaining in force until their nominal expiry date (when either party can terminate the AWA by giving 90 days notice);
the introduction of Individual Transitional Employment Agreements (ITEAs); and
the replacement of the fairness test with the no-disadvantage test (NDT) for ITEAs and collective agreements.
ITEAs will be available to employers who had at least one employee on an AWA at 1 December 2007. They will automatically expire on 31 December 2009 and can be made when re-engaging previous employees (providing that the employee was not dismissed in order to re-engage under new conditions) and with existing or new employees.

ITEAs must pass the NDT. To pass the NDT, the Workplace Authority must be satisfied that the ITEA will not result, on balance, in a reduction in the overall terms and condition of the employee’s employment.

The fundamental difference between the NDT and the fairness test is that under the NDT, the entire agreement will be compared against the entire applicable award. In contrast, the fairness test focused on the value that was being provided in relation to the modification and removal of protected award conditions.

The short lifespan of ITEAs means that the shift is now back to collective agreements or common law contracts of employment. Collective agreements must pass the NDT.

Awards are to be ‘modernised’ by the Full Bench of the Australian Industrial Relations Commission and notional agreements preserving State awards will continue until replaced or until the end of 2009, at which time they can only be extended by further regulation.

There are also a number of significant procedural differences under the Act such as the Workplace Authority’s ability to contact the employee directly when testing agreements and the removal of the employer’s obligation to provide a copy of certain fact sheets to employees.

The next phase of the Rudd Government’s reforms will follow later this year, with legislation that will reform the existing Unfair Dismissal laws and introduce new provisions for employees earning over $100,000 to enable those employees to negotiate their pay and conditions without reference to any Award.

If you would like further information regarding the effect of the changes introduced by the Act on employers and employees or employment law generally, please contact Kevin Dwyer on 9525 8688 or email kevin@wmdlaw.com.au.

Congratulations to Amanda Appointment of Senior Associate

We are very pleased to announce that Amanda Solomon, one of our Accredited Specialist family lawyers, has been appointed as a Senior Associate of the firm.

Amanda’s appointment is a recognition of her hard work and efforts on behalf of the firm and our clients and her standing as a Law Society Accredited Specialist in family and de-facto law.

Amanda is based in our Miranda Office, but is available for representation for our Wollongong and South Coast clients as well. We congratulate Amanda on her appointment.

If you need assistance in family law, please contact Greg Dickson or Amanda Solomon or email greg@wmdlaw.com.au or amanda@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.

I am recently divorced and do not want my ex-wife to use my surname. Can I ensure she reverts to her maiden name?

There is usually no obligation on a party to revert to the surname they held before marriage upon divorce. Each party is free to continue to use the name their married name if they wish to do so. One situation where a party would be obliged to revert to the surname they held before marriage is if both parties entered into a Binding Financial Agreement (BFA) by consent before, during or after the marriage that contained such a condition. Whilst BFA's primarily deal with the property and financial resources of the parties they can also contain provisions of this nature. If you require a BFA or further information about BFA's please contact Kevin Dwyer or email kevin@wmdlaw.com.au.

What are my legal rights to ensure my children continue using my surname?

Changing a child’s name requires consent of both parents. If consent is not given, then changing a child’s name requires a court order. The determination of whether a child’s name should be changed will depend on the circumstances of each case. The court will examine what is in the child’s best interests in making its decision.

The landmark case of Chapman and Palmer (1978) outlines factors that the court will consider in determining what is in the best interests of the child. These factors include the short and long term effects of any change on the child, any embarrassment likely to be caused to the child if their name is different from the parent they live with, any confusion of identity that the child may experience if their name is changed or not changed and the effect any change may have on the relationship between the child and the parent whose name the child bore during the marriage.

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