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Merry Christmas
The Principals and Staff would like to wish you a very Merry Christmas and a happy, safe and properous 2010.
Relieving financial pressure at separation
When a relationship breaks down it can often leave one party without financial support and this can make it difficult to properly fund a legal case to obtain appropriate property settlement and other rights.
Provisions of the Family Law Act provide that, in appropriate circumstances, the Court can order that the party in control of funds make available to the other party sufficient money to pay legal costs and investigative costs so that their case can be properly prepared. Proper preparation and funding for preparation can make an enormous difference in Family Law and Property Relationships Act cases.
An appeal to the Family Court recently confirmed that where (in this case) the wife needed funds to meet ongoing legal costs of the proceedings and where she did not have the funds to pay those costs it was appropriate to exercise their discretion to make an Order compelling the husband to make those funds available.
If you or anyone you know is in need of assistance in relation to a family law or de facto relationship please contact Greg Dickson, greg@wmdlaw.com.au or (02) 9525 8688.
Employees accruing too much leave?
Annual leave entitlements can be a massive burden on businesses because if accrued liability builds up, it can cause significant cash flow problems. If your business has employees accruing excessive amounts of annual leave, there are several things that can be done.
1. Direct employees to take annual leave
You may have the right to direct employees to take annual leave. If you are covered by the minimum employment conditions in the Workplace Relations Act, you can direct employees to take up to one quarter of their annual leave if they have accrued more than 8 weeks of leave (pro rata for part-time employees).
However, if you are subject to an award or enterprise agreement, you will need to check whether you have this right. Remember, even if an employment contract allows you to direct employees to take leave, you will be still be subject to the terms of any applicable award or enterprise agreement, or the Act.
Even though it is not provided for in the Act, it is a good idea for you to give employees at least one month's notice of a direction to take leave. For example, you might give an employee 6 months to take leave voluntarily, but let them know that if they do not take it within that period, you will direct them to take it.
2. Cash out leave
In some limited circumstances you may be able to cash out leave. You may be able to cash out leave if:
- You are a Western Australian employer not covered by the Act, or
- You are covered by an agreement made under the Act that provides for the cashing out of leave.
If this is the case, you can cash out up to 50% of accrued leave, but only by written agreement with the employee. However, if you do not fall into one of the above categories, then you cannot cash out leave.
3. Advance payment of leave
If you do not have the right to cash-out leave you might pay for annual leave 'in advance'. This can occur on the basis that this amount will be deducted from any annual leave payment made to the employee upon the termination of their employment. If you decide to do this, you may wish to reach an informal understanding with the employee that they will not take the leave they were paid in advance for.
In addition, your time and wages records for that employee must still show that the leave remains accrued and that it has not been taken. However, your financial records need to show that payment for the leave has been accounted for by an advance payment. (This is subject to any difference in salary that might arise between the time the advance payment was made and the time you either granted the leave or paid it out upon termination).
If we can assist you in relation to any annual leave enquiries or any employment law issue, please contact Dean Groundwater or Kevin Dwyer on 02 9525 8688 or email dean@wmdlaw.com.au or kevin@wmdlaw.com.au.
New regulations for child restraints
On 4 November 2009, the NSW Government announced new safety rules which require children to the age of 7will to be strapped into car restraints.
The regulations which come into effect on 1 March 2010 broadly require children:
- younger than 6 months of age to be placed in a rearward-facing restraint,
- aged 6 months to 4 years to be secured in a rear or forward-facing restraint,
- aged between 4 and 7 years old to sit in a forward-facing restraint or booster seat.
Until these regulations, which are part of national reforms, it was only compulsory for children up to 12 months of age to travel in baby capsules or seats that contain their own restraints.
NSW Premier Nathan Rees announced a 4 month amnesty on enforcement to allow parents to make arrangements to accommodate the changes.
Further information about restraints and the regulations can be found on the Roads and Traffic Authority website.
Cadbury wins battle to trademark the colour purple
It is widely known that over the past 10 years, Cadbury has filed numerous applications to register a trademark over the colour purple. In September and October of 2009, Cadbury was finally granted trademarks for various shades of purple. Cadbury’s initial applications were rejected and then subsequent applications were opposed by Nestle and Darrell Lea.
This trademark does not mean that Cadbury “owns” the colour purple, rather it has owns the exclusive right to use certain shades of purple for use in relation to packaging and a limited range of goods.
The Trade Marks Act 1995 (Cth) (Act) expressly allows for registration of trademarks over colours. To register a colour trademark, the application should include:
- A clear and concise description of the trademark (“purple” is insufficient);
- Must show you use the colour which you seek to be registered;
- Must show a sufficient/significant use of the colour; and
- Should show use of the colour, ideally without words or logos.
Colour can be used as a distinctive brand image, which is indicative of the goods or services offered by a business. Questions are likely to arise in relation to what will constitute breach of Cadbury’s purple trademarks.
If there is a particular attribute of your branding that is recognisable and creates an association to you or your business, you should consider registering it as a trademark.
If you have any queries in relation to registration of trademarks or trademark disputes, please contact Dean Groundwater or Craig Pryor on 9525 8688, or email dean@wmdlaw.com.au or craig@wmdlaw.com.au
This newsletter is intended to provide general information and is current as at the date of publication only. This newsletter does not, and is not intended to, provide legal advice to any person. Recipients of this newsletter should not alter their position (or refrain from altering their position) on the basis of any information contained in this newsletter and should always obtain appropriate legal advice from a qualified lawyer. Receipt of this newsletter is not intended to and does not create any solicitor-client relationship.
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