From 1 July 2014 changes to care and services for residential aged care services came into effect, applying to the care of new and continuing residents. These changes are accompanied by changes to the fees payable for aged care.

Aged care services provided before 1 July 2014 will not be subject to the fee changes. However, if the type of service being received changes, than it is likely that the changes resulting from the Government’s ‘Living Longer Living Better’ reforms, will apply.

It is predicted that as a result of the reforms to fees, the cost of aged care services and residential aged care will be more expensive with higher total fee payments applicable than under the former arrangements.

Contemplating a move to residential care or making care decisions can be both confronting and difficult. Coupled with the financial implications of the decisions made, it is important to be informed and familiar with your rights and care options available to you.

If you are considering a move into residential aged care including a short respite stay, an aged care home will offer a Resident Agreement. The Resident Agreement will form the legal contract between you and your aged care home.

 A Resident Agreement should set out your rights and responsibilities and those of the aged care home. A separate Accommodation Agreement might be provided setting out the costs of care and payment.

Committing to a Resident Agreement is a significant decision. Whilst there is an obligation on the aged care provider to help you to understand the terms of such an agreement, it is important to remember that the advice is not independent or directed to protecting or considering your individual circumstances and needs including, providing advice about what issues are not dealt with or should form part of the agreement.

If JV Legal can assist you with advising on or negotiating your aged care agreement or for more information about this article, please contact us on 8860 9477.

Author: Jo-Anne Chong

The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity and does not constitute specific legal advice.

PLAYING FAVOURITES

Sometimes a parent makes provision for some but not all of their children in their Will – or treats one child differently, disadvantaging others.

Other times a parent will stubbornly stick to an equal division of assets because it is ‘fair’ in their mind – when clearly one child is much better off financially than others, or one child much worse off.

This can give rise to hurt feelings or resentment and is a common reason for people seeking advice about challenging a Will.

When a person dies and does not adequately provide for an eligible person (including a child, spouse, ex-spouse or dependant) the Court may make an adjustment on application, if it considers it appropriate (even if this is contrary to a testator direction in the Will).

The process to get to the court order is often very costly and stressful for all involved. It almost always has a significant impact upon the residual amount to be paid from the Estate to the beneficiaries. It can take years to finalise the litigation.

When making your Will you should consider the individual circumstances of your beneficiaries and what a ‘wise and just’ testator would do.

If you have a Will – have you made adequate provision for those you will leave behind?

If you don’t have a Will – YOU SHOULD!!

For assistance with drafting a Will or if you  have concerns about the provisions of your existing Will, please contact us on 8860 9477.

Author: Vanessa Steinfelder

The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity and does not constitute specific legal advice.

With the commencement of the recent amendments to the Fair Work Act, a worker who believes they have been bullied in the workplace may now apply to the Fair Work Commission for an order to stop the bullying from 1 January 2014. The provision is not limited to employees but extends to contractors, labour hire personnel and persons engaged under other workplace arrangements.

There are no time limits for making an anti-bullying application however, a worker must still be working at the offending workplace. A terminated worker cannot apply for an anti-bullying order although may still be able to pursue an unfair or unlawful dismissal claim.

Bullying at Work

A worker is “bullied at work” if an individual (or group), repeatedly behaves unreasonably towards that worker and that behaviour creates a risk to health and safety. Bullying however does not include one off instances of insensitivity or rudeness or reasonable management activities carried out in a reasonable manner.

Although “unreasonable behaviour” is not defined in the amendment Act, the Safe Work Australia Guide for Preventing and Responding to Workplace Bullying defines “unreasonable behavior” as behaviour that a reasonable person, having considered the circumstances, would see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening. Examples of such behaviour include:

• abusive, insulting or offensive language or comments
• unjustified criticism or complaints
• deliberately excluding someone from workplace activities
• withholding information that is vital for effective work performance
• setting unreasonable timelines or constantly changing deadlines
• setting tasks that are unreasonably below or beyond a person’s skill level
• denying access to information, supervision, consultation or resources to the detriment of the worker
• spreading misinformation or malicious rumours; or
• changing work arrangements such as rosters and leave to deliberately inconvenience a particular worker or workers.

A single incident of unreasonable behaviour is not considered to be workplace bullying – it must persist to constitute bullying.

Reasonable Management Action

“Reasonable management activities” will not constitute workplace bullying. Employers (being those that are constitutionally covered businesses) may take “reasonable management” action to direct and control the way work is carried out.

Managers and supervisors may allocate work and give feedback on a worker’s performance. These actions are not considered to be workplace bullying if they are carried out lawfully and in a reasonable manner.

Constitutionally covered businesses

The new bullying provisions apply to all “constitutionally covered businesses” including:

• constitutional corporations (Pty Ltd and Ltd businesses)
• the Australian Government and its agencies
• sole traders, partnerships and trustees in ACT and NT; and
• incorporated volunteer associations that have at least 1 employee.

The amendment provisions do not apply to certain State public sector employees or unincorporated partnerships although State work health safety legislation will continue to apply.

The Defence Force and a number of federal security agencies have also been carved out from the application of the bullying amendments.

If a worker does not work for a constitutionally covered business, they cannot apply to the Fair Work Commission to stop bullying.

Powers of the Fair Work Commission

The Fair Work Commission will be required to commence dealing with an application within 14 days.

The Commission may make any order it considers appropriate (except orders requiring the payment of a pecuniary penalty) including:

• that an individual or group stop specified behaviour
• regular monitoring of behaviour by an employer
• compliance with an employer’s workplace bullying policy; and/or
• support and training, or review of an employer’s workplace bullying policy.

An order may be directed to the employer or principal of the worker, the employer or principal of an alleged bully and an alleged bully and/or co-workers of the worker. A breach of an order of the Fair Work Commission will attract a civil penalty.

Anti-bullying implications

There is significant concern and uncertainty about the potential impact of the new anti-bullying laws with an anticipated influx of stop order applications being brought before the Fair Work Commission.

In an attempt to allay these concerns, the Fair Work Commission has released an Anti-Bullying Benchbook and Anti-Workplace Bullying Guide for parties in lodging or responding to anti-bullying applications made under the new anti-bullying laws.

In the interests of a safe and harmonious workplace, workers are encouraged to raise any issues of bullying within their appropriate lines of management. Employers ought to have appropriate policies, training and procedures in place addressing anti-bullying in the workplace and are encouraged to respond to allegations of bullying in a prompt and fair manner.

To further discuss your workplace rights or obligations, please contact us on 8860 9477.

 Author: Jo-Anne Chong

The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity and does not constitute specific legal advice.

We look forward to a prosperous New Year and working with you again in 2014.

Our offices will be closed from Friday, 20 December 2013 and will reopen on Monday, 13 January 2014.

BE CARE AWARE

JV Legal recognises the important work that carers undertake in the community – supporting friends and family who have a disability, impairment, mental or terminal illness or condition.

Please join us in spreading the awareness for this worthwhile cause and go to http://carersaustralia.com.au/home/to see how you can share your experiences or if you can help.

In addition to renaming Fair Work Australia the Fair Work Commission, a number of legislative changes came into effect on 1 January 2013 in relation to unfair dismissals, general protections and enterprise agreements.
 
Unfair Dismissals
 
The time limit for lodging unfair dismissal applications has increased from 14 to 21 days.

The amendments also introduced additional circumstances in which the Commission may make a costs order against a party in unfair dismissal matters. Costs orders may be made against a party that has:

• unreasonably failed to discontinue a proceeding;
• unreasonably failed to agree to terms of settlement that could have led to discontinuing the application; or
• caused the other party to incur costs through an unreasonable act or omission.

General Protections

In uniformity with the timing for an unfair dismissal application, the time limit for lodging a general protections (or adverse action) application arising out of a dismissal has been reduced from 60 days to 21 days.
 
The changed time limits noted above apply to all employees dismissed on or after 1 January 2013. This means that employees dismissed prior to 1 January 2013 who wish to lodge an unfair dismissal or general protections dismissal application will still have 14 days and 60 days respectively from the date of dismissal to lodge an application. Employees dismissed on or after 1 January 2013 will have 21 days from the date of dismissal to lodge either an unfair dismissal or a general protections dismissal application.

Enterprise Agreements

A number of changes were made to the enterprise agreement related process including a requirement that such agreements cannot be made with a single employee.

The main amendment is to expressly prohibit ‘opt out’ clauses in enterprise agreements being clauses which enable an employee to opt out of enterprise agreement coverage. Such clauses are now prohibited. This will mean that employers will need to consider other mechanisms for making flexible working arrangements with individual employees, such an individual flexibility agreement.

A union official cannot act as bargaining representative for an employee unless the union has coverage to represent that employee and a bargaining representative applying for a scope order, need only take all reasonable steps to give notice to other bargaining representatives.

Further Amendments

This first wave of changes has addressed a number of issues raised by the Fair Work Act Review Panel however, a number of recommendations made in the Review Panel’s Report remain to be addressed including:

• whether good faith bargaining obligations also apply to negotiation of greenfields agreements;
• whether expired fixed-term contracts will be deemed as a “dismissal” for the purpose of making an unfair dismissal claim where the substantial purpose of the fixed-term contracts was to avoid unfair dismissal; 
• right of entry issues; and 
• whether employees accrue annual leave while absent from work and are receiving workers’ compensation payments.

Now that this year’s Federal election has been announced to occur on 14 September 2013, it remains unclear whether these issues will be addressed during an election campaign.

Implications of 1 January 2013 changes

With respect to the amendments that are now in place, it will be important to be mindful of:

• the new time limits that apply to unfair dismissals applications and general protection claims; 
• whether initial documentation lodged with the Fair Work Commission provides sufficient information about the alleged circumstances of dismissal;
• whether there are grounds to apply for a cost order;
• whether there is scope for an unfair dismissal application to be dismissed;
• one-employee enterprise agreements are now prohibited;
• whether an individual union official actually has coverage of employees in negotiations; and
• removing ‘opt’ out clauses in enterprise agreements.

For further information, please contact us at enquiries@jvlegal.com.au

Author: Jo-Anne Chong

The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity and does not constitute specific legal advice.

We look forward to a prosperous New Year and working with you again in 2013.

Our offices will be closed from Friday, 21 December 2012 until Monday, 14 January 2013.

Attorney-General Nicola Roxon said the changes represent the most significant developments in privacy reform since Labor introduced the Act in 1988.

The Bill has been referred to the Standing Committee on Social Policy and Legal Affairs. The Committee intends to hold a public hearing on 14 August 2012 and has announced it will table its report on the Bill by 21 September 2012. Deferred commencement provisions will provide a 9 month transition period for businesses to review and update their information-handling practices before the new regime comes into effect.

 The Bill amends the Act to:

• create a single set of Australian Privacy Principles, which will apply to both Commonwealth agencies and private sector organisations (replacing the existing National Privacy Principles and Information Privacy Principles);
•  introduce more comprehensive credit reporting with improved privacy protections; and
• clarify the functions and powers of the Commissioner and improve the Commissioner’s ability to resolve complaints, recognise and encourage the use of external dispute resolution services, conduct investigations and promote privacy compliance.

NEW AUSTRALIAN PRIVACY PRINCIPLES

The new Australian Privacy Principles will replace the existing National Privacy Principles (which apply to private sector organisations) and Information Privacy Principles (which apply to Commonwealth public sector agencies). 

There are some significant differences between the Australian Privacy Principles and the existing National Privacy Principles which include:

•  A new principle requiring entities to take reasonable steps to implement practices, procedures and systems to ensure they comply with the Australian Privacy Principles and can deal with inquiries or complaints about their compliance.

It is likely that this new principle will require businesses to take steps to establish new complaints-handling procedures and develop new information-handling policies and practices.

•  Additional information that entities must include in their privacy policies, including how they handle privacy complaints and whether they disclose personal information to recipients out of Australia.

 In practice, businesses will need to review their privacy policies and make sure they contain all of the required information which will need to be made available free of charge and provided in an appropriate form (usually by posting the policy on its website).

•  The rules for use of information for direct marketing will change with an opt-out requirement that will apply to all direct marketing communications.

 Whether businesses can use personal information for direct marketing will depend on how they collected the information (whether it was directly from the relevant individual or from a third party) and whether individuals would reasonably expect their information to be used for this purpose.

 NEW CREDIT REPORTING PROVISION

The new credit reporting provisions will overhaul the current credit reporting provisions in the Act, introducing a more comprehensive credit reporting system and improved privacy protections.

 The key reforms include:

•  The introduction of positive credit reporting;
•  Changes to data retention obligations;
•  The introduction of specific rules relating to pre-screening of credit offers and freezing access to personal information where there has been fraud; and
• Additional consumer protections relating to data quality, access, correction and complaints.

NEW POWERS FOR THE AUSTRALIAN PRIVACY COMMISSIONER

Currently, the Commissioner has relatively limited powers and functions to enforce the Act. The Commissioner can investigate a complaint that an entity has breached the Act and make a determination that can be enforced by a Court. It can also investigate a potential breach on its own motion, but has no power to take steps to enforce its findings.

There are currently no civil penalties for breaches of the Act and only limited criminal penalties for credit reporting and tax file number offences.

The Bill gives the Commissioner new powers and functions to resolve complaints, conduct investigations, and promote compliance with the Act including new civil penalty provision that apply if an entity engages in an act that is a serious interference with an individual’s privacy or if it repeatedly does an act that is an interference with one or more individual’s privacy. For a corporation, the maximum penalty that may be imposed is $1.1 million.

WHERE TO FOR BUSINESSES

It is likely the reforms to the Act will impact the privacy and personal information handling practices and procedures of your business. There will be a 9 month transition period from the date the Bill is passed within which you will have to comply with the amendments to the Act.

In preparation for the new laws, you may consider reviewing the systems, practices and procedures your business has in place in relation to its collection, use and disclosure of personal information.

Noting that civil penalty provisions will apply in respect of breaches of the Act, your business may need to update (or implement) its privacy policy and collection notices to address the new Australian Privacy Principles requirements.

You should ensure your business has in place a system for handling enquiries and complaints from individuals about how your business uses and handles personal information.

You will need to ensure your business collects and uses personal information for direct marketing in accordance with the new laws, including the provision of an opt-out option on all direct marketing communications.

Over the coming months more information will be released regarding the proposed reforms including the Government’s second stage response and the Standing Committee’s report on the provisions of the Bill.

 If you have any questions about the reforms to the Act or would like assistance with your privacy practices and personal information handling procedures, please contact us on 8860 9477.

Author: Jo-Anne Chong

The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity and does not constitute specific legal advice.

What are you buying?

There are various legal forms of ownership for residential properties. What you are buying is important as the form of ownership will effect your rights, entitlements and use of your new home. Common forms of ownership include:

• Torrens Title

Most commonly, the title to your new home will be Torrens Title. This is a system whereby ownership and any other interests in the property are recorded on the Certificate of Title. A recording on the Certificate of Title confirms your rights and interests in the property.

 A mortgage by your lender will be recorded on the Certificate of Title as a charge or encumbrance until such time as the mortgage is discharged.

•  Strata Title

Strata title gives you ownership of a unit, villa or townhouse of a larger building, which you may sell, lease or transfer at your discretion. Of the entire building, individuals each own a small portion (such as a unit or townhouse) but where there is common property (external walls, windows, driveways, foyers, lawns and gardens) all owners share and are responsible for the common property.

 Strata levies are payable for the maintenance of common property and administration of the owners corporation. Your rights and entitlements in respect of the property may be limited or restricted by the by-laws or governing rules of the strata complex.

•  Community Title

Not unlike strata title, community title is a form of subdivision, where owners receive a Torrens Title for the lot they own however, are members of a body corporate and share and are responsible for common facilities.

 Community title levies are payable for the maintenance of common facilities and administration of the body corporate. Your rights and entitlements in respect of the property may be limited or restricted by the by-laws or governing rules of the community.

•  Company Title

Company title is more common in older more established suburbs such as inner-city Sydney. This title applies when unit owners are actually shareholders in a private company that owns the property. A purchase is conveyed by the transfer of shares in the company and as a shareholder, you are entitled to the exclusive occupation of a particular unit equivalent to your shareholding.

 In some instances, company title may limit your use of the property where for example, any leasing or rent for leasing is determined by the company or future sale where the transfer of your shareholding must be pre-approved by the company.

 Company levies are also payable in respect of common property and the functioning of the company.

 Financing your purchase

Typically, most of us and particularly first home buyers, require the assistance of a lender to fund the purchase of your new home. Shop around for a lender and mortgage that best suits your appetite for commitment and financial circumstances. You can do this on your own or engage the services of a mortgage broker.

Before entering the market for your new home, consider obtaining pre-approval. Pre-approval is where a lender gives a commitment to make you a loan. The benefit of pre-approval is that it gives you an idea of your borrowing capacity and starts the process of obtaining a loan which can take some time depending on your financial history and circumstances.  

You don’t have to get a loan from a lender that offers you pre-approval. However, be aware, pre-approval is NOT final approval! A lender will confirm the security value of the property before preparing their loan documentation and agreement to loan.

Be mindful that fees and charges and possibly lenders mortgage insurance apply on the establishment of a loan. Whilst such fees don’t reduce the size of your mortgage they do effect the total monies available for purchase. Legislation requires fee disclosure however, be sure you understand the nature of the fees, charges and any insurance that may apply, upfront.

House Hunting

House hunting may be fun, exciting, stressful, daunting or a combination of mixed feelings. Most of us take the opportunity to inspect the house we intend to purchase. This may be by appointment or attendance at an open for inspection.

On inspection, think about the property that is for sale – what are the inclusions and what is excluded, what neighbours the property and consider its immediate environment – is there a bus stop in your front yard? Is the house on bush fire prone land? Have there been recent renovations to the property?

Consider how the house is intended to be sold that is, by private treaty or public auction. Often there are different preparations that need to be made when you attempt to buy at auction.

In NSW, before a house goes on the market, a Contract for the Sale of Land is prepared in respect of the property. This is a standard form contract however is often accompanied by qualifying special or further provisions and required disclosure documents particular to the property.

A copy of the Contract will often be available at inspection or arrangements can be made with the relevant agent to make a copy available to you. If you have a genuine interest in the property and are prepared to make an offer, consider obtaining a copy of the Contract for Sale so that you can obtain advice.

Price Negotiations

The manner in which price negotiations take place vary and can be subject to the seller’s instructions, the nature of the property for sale or the agent’s own practices. If you are uncomfortable about approaching the price negotiation process you may consider appointing a buyer’s agent to act on your behalf.

Once you have selected a property that you are interested in buying, the seller may ask you to pay an initial deposit. This does not mean that the property will be held for you or that it gets taken off the market. It is more like a goodwill gesture, indicating to the seller that you are serious about the prospective purchase and may mean that the seller or agent will be less likely to show the property to anyone else. The seller is able to take initial deposits from other prospective purchasers as well but must refund your deposit if they choose not to sell the property to you.

Until you exchange contracts, there is no legal obligation on the seller to sell to you.

Exchange

Up until the exchange of contracts, both you and the seller are entitled to change your mind without any legal consequences.

The Contract sets out the terms and conditions of sale. Exchange refers to the time at which the parties to the Contract each sign the Contract and hand their signed copy to the other party.

On the date the Contracts are exchanged, you will have to pay a 10% deposit (subject to a negotiated deposit amount – for instance, 5%) which is usually handed over to the seller’s agent or acting solicitor to be held in trust or invested on behalf of the parties, pending settlement.

Cooling Off Period

Because the purchase of a home is such a significant investment, there is a period of time after exchange of contracts where you can still change your mind and exercise your right to rescind the Contract.

In NSW, the cooling off period runs for 5 business days after the day on which the Contract was made. If you do exercise your cooling-off rights 0.25% of the purchase price is forfeited to the seller and the balance of any deposit paid is refundable.

There are some circumstances in which the cooling off period does not apply and you should discuss this further when you seek advice on the Contract.

Where it does apply, the cooling off period is an appropriate time to stop and reflect on your choice.

Settlement

There is a period, usually 42 days, between exchange and settlement – the settlement period. During the settlement period various matters are attended to you by your solicitor and lender acting on your behalf.

Prior to exchange, the settlement period can by agreement, be extended or shortened. Ensure to confirm that your lender is in a position to finance in relation to any shorter settlement period BEFORE agreeing to a shorter period.

During the settlement period you should attend to confirmation and execution of relevant loan documentation including any First Home Buyer incentives, finance any stamp duty payable and arrange appropriate insurance on the property in anticipation of settlement.

First Home Buyer incentives – There have been some changes that may affect your ability to purchase

• First Home Owner Grant (FHOG)

From 1 October 2012, the $7,000 FHOG will be replaced by the $15 000 First Home Owner Grant (New Homes) Scheme.

The $7,000 FHOG which is currently capped at $835,000, ends on 30 September 2012 and will not be available where the Contract is dated on or after 1 October 2012.

• First Home Owner Grant (New Homes) Scheme

First home owners who purchase or build a new home where the Contract is dated on or after 1 October 2012, will be eligible for the $15,000 grant. The grant will reduce to $10,000 on 1 January 2014.

A new home is a home that has not been previously occupied or sold as a place of residence, and includes a home that is a substantially renovated home and a home built to replace demolished premises. It includes off the plan purchases and house and land packages.

There is certain eligibility criteria that must be met and the scheme is capped to $650,000 from 1 October 2012.

• Stamp Duty

The First Home—New Home scheme provides exemptions or concessions on transfer duty for people who are buying their first home in NSW. This includes buying vacant land on which you intend to build your first home.

The First Home—New Home scheme provides exemptions on transfer duty on new homes valued up to $500,000 ($550,000 from 1 July 2012) and concessions on transfer duty for new homes valued between $500,000 ($550,000 from 1 July 2012) and $600,000 ($650,000 from 1 July 2012).

No duty on vacant land valued up to $300,000 ($350,000 from 1 July 2012) and concessional duty for vacant land valued between $300,000 ($350,000 from 1 July 2012) and $450,000 applies to vacant blocks of residential land.

These exemptions or concessions DO NOT apply to the purchase of an existing dwelling.

Further details about First Home Buyer Incentives can be obtained via the link to OSR.

For more information about this article or if JV Legal can assist you with your purchase, please contact us on 8860 9477.

Authors: Jo-Anne Chong & Vanessa Steinfelder

The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity and does not constitute specific legal advice.