Work Health & Safety Due Diligence

WORK HEALTH AND SAFETY DUE DILIGENCE FOR COMPANY DIRECTORS AND OFFICERS OF ORGANISATIONS

Have you really met this new set of obligations?

A new uniform Work Health and Safety regime has been adopted in Queensland, New South Wales, the ACT, the Northern Territory and the Commonwealth since 1 January 2012.

The new laws comprise the model Work Health and Safety Act 2011 (model Act), the model Work Health and Safety Regulations 2011 (model Regulations), model Codes of Practice, as well as a National Compliance and Enforcement Policy.

1. Are you caught?

The safety obligations under this regime, which we explain below, bind not only company directors, but also “officers” of companies, partnerships and government departments.

The term “officer” includes:

  • de facto directors (i.e., persons acting in the position of directors who gives instruction or guidance);
  • shadow directors;
  • company secretaries;
  • persons who make decisions that affect a substantial part, if not the whole, of an organisation’s business;
  • a person who is able to significantly affect the organisation’s financial standing;
  • a trustee who administers a compromise or an arrangement of the organisation;
  • project managers;
  • lawyers involved in decisions affecting a substantial part of the organisation’s business;
  • receivers;
  • administrators or liquidators of companies; and
  • officers of the Crown.

2. What does “due diligence” mean in the real world?

All “officers” of companies, partnerships and government departments are obliged, under the new regime, to exercise due diligence in order that the organisation that they head or significantly affect complies with the safety duties that are imposed by the new regime.

“Officers” cannot delegate this duty to anybody else.  Moreover, an “officer” can be found to be in breach of that duty even if their organisation has not breached its safety obligations under this new regime.  This means that, if the organisation has been lucky enough to avoid a safety incident, its “officers” could still be in breach of their due diligence duty if they do not have appropriate safety systems in place, etc. Practically, this means that even though you may specifically employ someone or task someone with a role, something like “safety officer” or similar, you still have to check to see that systems are in place to meet the potential safety risks in the workplace.

3. How do I meet these standards?

An “officer’s” exercise of due diligence comprises the following obligations:

  1. Acquiring and maintaining up to date knowledge of Work Health and Safety matters, both in terms of familiarisation with the current law and also in terms of acquiring internal organisation reports regarding safety performance and workplace health and safety regulationsany issues of concern.
  2. Familiarisation with the nature of the organisation’s operations and the hazards and risks associated with these.
  3. Provision of appropriate resources and processes to enable the identification of hazards and their elimination from the organisation.  At a minimum, this requires recruiting appropriate staff members with relevant safety expertise as well as training personnel to ensure that safety is taken into account in decision-making processes.
  4. Reporting and analyzing safety performance so the organisation can promptly respond to hazards.
  5. Ensuring that the organisation implements processes for complying with its safety obligations.  This includes not only reporting hazards, but also consulting with personnel, ensuring compliance with notices issued under the new legislation, and ensuring the training of personnel with regard to Work Health and Safety issues.
  6. Conduct of safety audits and officers’ personal verification that the organisation’s systems ensure compliance with safety obligations.

Overall, the due diligence duty on “officers” requires personal vigilance to ensure that their organisation complies with its safety obligations.

4. What if I am too busy or don’t get around to it?

Penalties apply.

The following penalties are the maximum penalties:

1. Category 1 offence:
The officer without reasonable excuse and with recklessness exposing an individual to a risk of death or serious injury or illness – $600,000 fine or 5 years imprisonment or both.

2. Category 2 offence:
Failure by an officer (without recklessness) exposing an individual to a risk of death or serious injury or illness – $300,000 fine.

3. Category 3 offence:
Officer’s failure to exercise due diligence, but there is no exposure of an individual to a risk of death or serious injury or illness – $100,000 fine.

5. Is there some way to limit my personal exposure?

Although “officers” cannot delegate their due diligence duty to any other person, they should, ensure that appropriate clauses are included in their Employment Contracts to provide for support with the payment of legal advice and costs so they can understand their legal position and respond to any enquiries made by the authorities.  It is also appropriate for organisations and “officers” to ensure that insurance policies maintained by the company provide this style of cover to “officers”.

If you have any further questions, please contact Adam Robinson of our office on (07) 3123 5700.

Due to the impact of specific facts on any given case please treat this information as a general guide and not as legal advice. If you require advice on how to adequately protect your security rights please contact Adam Robinson on 07 3123 5700.

Small business owners – plan now or pay later!

How you get into your business now can have drastic financial implications for everything from the day to day running to how you get out of it later.  The earlier you start planning the greater your ability to take advantage of the array of concessions and exemptions offered for tax, duty and superannuation.

small business planningGetting into small business – plan ahead!

Business restructures can involve capital gains tax and stamp duty implications, which will increase with the value of a business. It follows from this the best time to plan an effective structure of your business is before it begins trading or otherwise as early as possible. The longer you leave a restructure the greater the tax liabilities to be incurred as your business continues to (hopefully) grow in value.

Getting out – more than just a for sale contract!

When planning your business structure it needs to take into account more than just your current circumstances and tax needs. Are you married? How long do you plan on staying in business? How big will it grow? What is to happen in the unfortunate event of illness or death to a key member? What will happen in the event of bankruptcy?

These are just some of the factors which will impact upon which structure is best for your future needs.

Business acquisition of its rented premises?

Does your business rent premises which you may be able to purchase in the future? The ability to purchase may be easier than you think but you should always receive advice before signing on the dotted line.

Changes in the last few years have opened up the ability of Self-managed Superannuation Funds (SMSF) to borrow in order to acquire real property. This can enable your own SMSF to acquire the whole or part of your business premises but not where you already own it! Your business will then lease the premises from your SMSF. The main benefits of using a SMSF to acquire your premises are:

  1. Asset protection – generally your superannuation fund and property held by it will be safe from creditors in the event of bankruptcy.
  2. Less tax – income for a SMSF is taxed at a lower rate than for a company and generally lower than a trustee of a trust or individual. Your SMSF can also claim a deduction for the interest on loan repayments.
  3. Tax deductions – Your business will still be able to claim a tax deduction for rent paid to your SMSF. If your business purchases the property itself would only be able to claim interest on repayments as a deduction.

Due to the impact of specific facts on any given case please treat this information as a general guide and not as legal advice. If you are small business owner and curious about how we can help achieve your goals please contact Adam Robinson.

Employment Agreement Fundamentals

Employment Agreement Fundamentals: an Employee or an Independent Contractor?

Imagine, as an employer, you enter into an employment agreement with what you think are independent contractors. You lay down the terms and the conditions of the employment relationship including a specific stipulation that the workers are contractors and not employees; the workers you want to employ agree to these terms and the work gets under way. Time passes by, all is going well until one day several workers attempt to claim entitlements which are usually associated with employees and not contractors such as annual and long service leave. You point out to the employment agreement you have with the workers and refuse to pay. Next thing you know you’re looking for a law firm to represent you in court. employment agreementsAnd here is the bad news – you lose all the way to the Full Court of the Federal Court. Sounds unreal? Maybe, but this is exactly what happened in ACE Insurance Ltd v Trifunovski in January 2013 when the judge Buchanan J found, among other things, “no adequate foundation for a conclusion that the relationship [between ACE Insurance and its agents] was anything other than one of employment.”

Distinguishing factors

The distinction between an employee and an independent contractor is like that now proverbial “elephant test” – hard to describe in precise terms but instantly recognizable when spotted. It doesn’t help that the Fair Work Act 2009, fails to define what an “employee” is.

Over the years, the courts have developed the so called “multi-factorial” test to determine the employment status of a worker. Regardless of what side of an employment relationship you’re on, you’ll do well to familiarise yourself with some of the main factors used by the courts in disputes related to employment agreements:

  • Control – the ultimate control by the business over the performance of work by the worker will indicate an employer-employee relationship. If this test determines such a relationship exists, it’s unlikely other tests will be considered.
  • Representation – a worker is presented to the community as a representative of a business by means of, for example, special uniform, giving out business cards with a trade logo on it or signing off emails with a business signature. The court will likely see such a worker as an employee of a business they represent.
  • Tax – deducting income tax from the worker’s payment will generally indicate a worker is an employee.
  • Equipment – employees are usually supplied with equipment and its maintenance is the business’ responsibility.
  • Remuneration – employees are paid wages based, for example, on time spent on performing work, per item of work performed or commission. By contrast, contractors are usually paid for the completion of tasks which are invoiced by the worker with GST added to it.
  • Employment relationship – an employee can be lawfully dismissed or suspended.
  • Insurance – workers compensation insurance is generally associated with employees while contractors are free to arrange their own insurance cover.
  • Delegation – unlike contractors, employees are not able to delegate or sub-contract their work.
  • Choice of work – generally, contractors are free to work for whoever and whenever they choose while employees are not.
  • Tools and Repairs – generally contractors provide their own tools and are responsible for fixing defective work at their own cost.

Vicarious Liability

An employer is also generally vicariously liable for the negligent acts of an employee and will require insurances to cover such events. A principal engaging a contractor on the other hand is generally not liable for negligence of the contractor and will not require such insurances. However, the status of a contractor can be challenged after an incident has occurred, potentially leaving a principal liable for the negligence of the worker who they thought was a contractor. This can provide serious detriment to a principal with inadequate insurance coverage, particularly where the negligence results in personal injury, disability or death.  We can provide advice on the risk of your arrangements with contractors, and advice on how best to proceed in protecting your interests.

Conclusion

It’s important to realise that what might look like a straightforward, easy to understand employment agreement expressed in clear terms may turn against you if challenged in court. To that end, whether you employ people in your business or are employed, make sure you’re aware of these important points:

  • Australian legislation does not provide a clear distinction between employees and independent contractors.
  • It’s up to the courts to decide what the relationship between a business and a worker is.
  • The courts will look beyond contractual agreements and examine a number of factors to determine the employment relationship.
  • Employers should make sure the employment agreements are not only carefully drafted, but the day-to-day employment relationship is consistent with the employment status agreed upon between an employer and a worker.

Due to the impact of specific facts on any given case please treat this information as a general guide and not as legal advice. If you require advice on how to adequately protect your security rights please contact Adam Robinson on 07 3123 5700.

Asset Test for Age Pensioners: How Much Can You Give Away?

Giving away your own assets is generally not restricted in any way unless you’re planning to apply for Centrelink or a Department of Veteran Affairs’ age pension. If you are, then you should be aware of the “gifting rules” which will be used to assess your pension entitlements.  The “gifting rules” are comprised of two asset gifting tests:asset tests

  • A single person or a couple can give away assets up to a maximum of $10,000 in a single financial year, and
  • A single person or a couple can give away assets up to a maximum of $30,000 over a period of 5 consecutive years.

Any assets exceeding these amounts will be classed as “deprived assets” and will be assumed to earn interest and classified as income.

The consequences of excessive gifting can catch you out and cost you money. If you are thinking about it and want to discuss your estate planning, please contact Sue Fleming or Adam Robinson of Hollingworth & Spencer Lawyers for professional advice.

Due to the impact of specific facts on any given case please treat this information as a general guide and not as legal advice. If you require advice on how to adequately protect your security rights please contact Sue Fleming or Adam Robinson on 07 3123 5700.