By Brilliant Digital 

You’ve no doubt heard that Google is threatening to make its Search Engine unavailable in Australia.

They are unhappy about a proposed government bill which will control how much Google and other tech giants have to pay for professional news articles shared on their platforms.

Similarly, Facebook is also vowing to stop Aussie users from posting or sharing news links if the proposed bill becomes law.

Of course, if Google does disappear from our screens, Aussies will find other ways to search online (Bing, DuckDuckGo, Yahoo etc) and our world will keep turning.

In turn, this will open the flood gates for other governments to play hardball with the tech giants, probably something Google doesn’t want.

So, it seems to me unlikely that Australia will find itself without Google.

But say they do go, what opportunity opens up for us? Click here to find out.

By Blacktown City Council

The current pandemic has brought into stark relief the exposure of local businesses to the effects of this major public health shock.

The response by most local councils has been to support local business and help minimise the negative effects of the pandemic on their businesses and move forward.

This situation has highlighted to many of us in local government the strengths and weaknesses of our local economies. It has also indicated how we may need to learn more about how our local areas function as part of the broader system of the Australian economy.

The current situation

At present, Blacktown City Council is served well by different layers of data sets provided by data gathering/data analytic services. This data covers areas such as:

• economic indicators
• economic value
• local employment
• businesses
• industry focus
• journey to work
• local and resident workers
• market profile.

This information creates a good structure to explain the size of the economy and businesses, industry sectors which create local jobs, levels of output, value added activities and local sales.

The problem

This is good information. However, it’s historical and based on data generated in some cases 12 months or more ago. We do not know what is currently happening in the economy in sufficient detail.

This is important, because during the current COVID-19 pandemic, our local businesses have been significantly affected by the changing local economic conditions brought about by random outbreaks of the disease. There have been very few metrics to measure what’s been happening in our local economy during this period. What information has been available has tended to be anecdotal and selective.

Big data project

Blacktown City’s preference would be to know what is happening in real time, so that our limited resources can be prioritised. We need to target our activities and maximise the return on our service and optimise the beneficial effects of Council’s engagement with our local business community.

A solution

Council wants to know the movements of money around our local economy. We want to find out at any one time:

• the business cohort which generates revenue
• where revenue is spent
• what revenue is spent on, such as wages and investment
• how much created wealth leaks out of the local economy.

The concept would be to create a desktop dashboard and use access to financial information to generate data trends. Council would not want access to individual data. We are more interested in the information created by data from the different business cohorts across our City.

The challenge is to:

• to create the algorithms which can identify and select financial data in a useable format
• have legal access to this financial data
• be able to translate that data into positive actions by local government.

This project is emerging out of some blue sky thinking.

We’re beginning to form a project team to understand the technical challenges and conditions of access for gathering such data.

If you are interested in finding out more, or being part of a solution to the ‘big data’ challenge, please contact David Somerville at  david.somerville@blacktown.nsw.gov.au

Western Sydney International (Nancy-Bird Walton) Airport has revealed it is exceeding its local employment target two years into the project, with 54 percent of the workforce building Sydney’s new airport from the local community.

Western Sydney Airport Chief Executive Officer Simon Hickey said more than half of the airport team are from Western Sydney, almost double the construction phase target of 30 per cent.

“Western Sydney International is being built to be a catalyst for jobs and opportunities in Sydney’s west, so we’re proud that just over two years into the seven-year build, more than half of the team are local,” Mr Hickey said.

Mr Hickey said the project was still in the earthworks phase, moving more than 25 million cubic metres of earth to prepare the site for terminal, runway and other civil infrastructure construction, including internal roads, utilities and supporting buildings.

“With terminal construction due to begin by the start of 2022 and the runway soon after, in around two years we’ll be at peak construction, with thousands of people working directly on the site,” he said.

“The flow-on benefits mean that more jobs will be created so that businesses of all sizes, including small to medium local businesses, can service and supply this massive project.

“Once the airport is operating, it will mean jobs of all kinds from ground crew, customer service and retail, as well as jobs at the myriad of employers in the on-airport business park and cargo facility.

“It’s an exciting time for Western Sydney and it’s great that the airport will be an important part of its growth.”

Mr Hickey said on top of jobs at the airport itself, it will be a catalyst for higher quality employment locally in Western Sydney, meaning fewer people will have to sacrifice three hours a day commuting to work in the east.

“The generational impact Western Sydney International will have on this region is yet to be fully realised,” he said.

Work to build Western Sydney International is on schedule for the airport to open to international and domestic passenger and air cargo services in late 2026.

Western Sydney International has been designed to grow and expand with demand, in stages and over decades, eventually catering for 82 million passengers a year in the 2060s – comparable to Dubai, Heathrow or JFK today – it will become the biggest gateway to Australia.

The design is thoughtful, with consideration to how tomorrow’s technology will come together with great design, intuitive wayfinding and dedicated customer service to create a fast and easy experience for passengers and airlines.

Western Sydney International will proudly be the beating heart of a thriving and vibrant precinct supporting growth and prosperity, stimulating new business and investment, and enhancing our state’s, and Western Sydney’s offering on a global scale.

Click here to learn more about Western Sydney Airport. 

In 2020, businesses across Australia saw disruption from significant factors, including a global pandemic, a shift to remote working arrangements, changes in client demands, and the need to rapidly adopt new business models.

Just how much has the landscape changed for employers and employees?

According to a report by The Guardian, 81% of Australians think employees should work from home. 31% continued to work from home in September 2020 (source: ABS).

However, information from NBER shows that, despite the added convenience, people are now working 4 hours longer each week due to COVID-19.

On the bright side, 25% of Australian businesses reported increased revenue in December 2020, with 65% of medium to large companies planning to employ more staff from January to March (source: ABS).

If you're a business on the road to recovery, it's critical to find and hire the right talent.

According to the Harvard Business Review, an engaged employee is 45% more productive than a worker who's "merely satisfied". The best companies are 20% more productive than the rest, due to the way they acquire, develop, team, and lead their high-quality talent.

Once you've found suitable talent, it's also a great idea to ensure that the right HR systems and processes are in place. Such checks and balances will make it easy to retain, motivate and develop your top talent while minimising your business risk.

Want to give your business an HR health check while identifying potential opportunities and risks? Check out ChandlerWoods HR Assessment for Businesses. Take a few minutes to fill out a quick questionnaire and they will provide you with some tailored options that can improve the way your business and HR systems work.

You can get started here.

ChandlerWoods is an award-winning HR solutions provider based in Sydney, focused on building growth and maximising ROI for businesses across Australia.

Stay up to date with ChandlerWoods! Follow us on LinkedIn, Twitter and Facebook.

By Diana Tapp, CEO of World Class Teams

Do you have managers or leaders in your business? And if you want to transition your people into becoming successful leaders, how exactly do you do that?

Watch this three-minute video where I take you through the five key distinctions between managers and true leaders.

Find out why having leaders at all levels of your business is more important now than ever, and how you can fast track that process for yourself or members of your staff in 2021.

Are you ready for your leaders to become world class?

Enquire about World Class Teams’ customised in-house Leadership Accelerator program and short courses or enrol in our nationally accredited BSB51918 – Diploma of Leadership and Management with generous funding assistance from the NSW Government for WSBC Members.

Want to Find Out More About the Diploma?

• Delivered by Diana Tapp from World Class Teams
• Download your free Diploma course guide here
• Click here to submit your Expression of Interest, or
• Contact World Class Teams on 1300 085 248 or info@worldclassteams.com.au

How do you change behaviours in a small workplace?

Providing a 'fair go' is part of Australia's cultural DNA, but it is also good for business – if you acknowledge the growing body of evidence from high-profile consulting firms like McKinsey and Deloitte.

Read more here.

Macquarie has been providing Business Banking solutions for over 30 years and provides SME clients with tools and strategies to grow and develop their business. You can get regular updates by subscribing to the monthly newsletter, Strictly Business by visiting macquarie.com.au/businessbanking. If you would like to find out more about how Macquarie can support you to take your business further, call Sam McCarthy at our Parramatta office on 0417 518 724 and be connected with one of our banking specialists.

This information has been prepared by Macquarie Bank Limited ABN 46 008 583 542 AFSL and Australian Credit Licence 237502 (“Macquarie”) for general information purposes only. This information does not constitute advice. Opinions expressed are subject to change without notice. No member of Macquarie accepts any liability whatsoever for any direct, indirect, consequential or other loss arising from any use of this information.

The Director of Children’s Medical Research Institute in Westmead, Professor Roger Reddel, was recently recognised as an Officer (AO) in the general division of the Order of Australia.

He was awarded for “distinguished service to biomedical research in the field of adult and childhood cancer and genetics, and to tertiary education.”

Professor Reddel has been the Executive Director of Children's Medical Research Institute (CMRI), Westmead, since 2007. He wears many hats and has also been: Head of CMRI’s Cancer Research Unit since 1988; Director of CellBank Australia since 2005; Co-Director of ProCan since 2016; and the University of Sydney Sir Lorimer Dods Professor, Sydney Medical School, University of Sydney, since 2007.

He has been a Fellow of the Australian Academy of Health and Medical Sciences from 2017; a Fellow of the Australian Academy of Science from 2010; a Fellow of the Royal Australasian College of Physicians from 1985; a Senior Principal Research Fellow, National Health and Medical Research Council, 2004-2007; a C J Martin Fellow, National Health and Medical Research Council, 1984-1986; and Fulbright Postdoctoral Fellow, 1984-1985. In addition to his focus on research, he has been a registered Medical Practitioner since 1977.

Professor Reddel has often been recognised for his dedication to cancer research. He has been a Cancer Council NSW Bicentennial Fellow, receiving the Carcinogenesis Fellowship for 10 years. As well as Program Grants for 10 years.

Professor Reddel is also the author of more than 250 peer-reviewed articles and book chapters published in various journals including: Nature; Nature Structural and Molecular Biology; Nature Genetics; Nature Biotechnology.

By Stewart Gough  |  Principal  |  9806 7483  |  stewartg@matthewsfolbigg.com.au

By Peter Doughman  |  Senior Associate  |  9806 7412  | pdoughman@matthewsfolbigg.com.au

Liability limited by a scheme approved under Professional Standards Legislation.

DISCLAIMER: This article is provided to readers for their general information and on a complimentary basis. It contains a brief summary only and should not be relied upon or used as a definitive or complete statement of the relevant law.

Casuals - High Court to hear ‘Workpac’ Appeal

In late 2020, WorkPac was granted special leave by the High Court to appeal the Federal Court’s decision in Workpac Pty Ltd v Rossato [2020], meaning that the High Court may finally provide authoritative guidance on what properly constitutes ‘casual’ employment.

By way of background, Mr Rossato was engaged by Workpac on a casual basis, his employment agreement specified that he was a casual employee, and he was paid a casual loading throughout his employment, however, after that employment ended he alleged he was in reality a permanent employee and therefore entitled to various NES benefits such as notice of termination and paid annual leave.

The Full Court of the Federal Court of Australia found that:

• Workpac had engaged Mr Rossato on a ‘regular, systematic and predictable basis’, and demonstrated a ‘firm advance commitment’ to provide Mr Rossato with ongoing work throughout his employment
• notwithstanding the fact that his employment agreement characterised him as a casual employee and he had received wages inclusive of casual loading, Mr Rossato was in fact a permanent employee and therefore eligible to recover unpaid NES entitlements from Workpac such as notice and annual leave
• Workpac could not set-off the casual loading against the entitlements claimed by Mr Rossato since the amount of casual loading paid had been subsumed into his wages and was not separately identifiable or recoverable

The Rossato decision followed on from the 2018 decision of Workpac Pty Ltd v Skene, in which the employee in question was held to be ‘other than a casual employee’ and thus eligible to leave and other entitlements under the NES.

Both decisions have caused particular anxiety to employers who rely upon a substantial casualised workforce as they illustrate that such employers may be vulnerable to underpayment claims made by casual employees even where they are paid a substantially-higher casual rate of pay throughout their employment.

It is anticipated that the High Court will resolve the ongoing dispute by formulating a clear and comprehensive definition of casual employment or at least provide meaningful guidance about the conditions which give rise to a ‘true’ casual employment relationship.

Action Items

Until the High Court hands down its decision employers should:

• ensure (as far as possible) casual employees are not engaged on regular, systematic and predicable shifts, and avoid giving such employees any guarantee of long-term employment
• ensure that all payslips issued to any casual employees show a separate and clearly-identifiable casual loading payment
• review and update their pro-forma casual employment agreements to ensure they contain strong and clearly-worded restitution and set-off provisions
• where appropriate, invite longer-term casual employees to convert to permanent employment in accordance with an applicable modern award or enterprise agreement

Proposed Amendments to the Fair Work Act

In December 2020 the Federal Government proposed the most significant set of changes to the national workplace system since the passage of the Fair Work Act in 2009.

The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 represents the outcome of deliberations by five working groups convened by the Minister for Industrial Relations and featuring representatives from employer groups and trade unions.

The Federal Government has stated that the purposes of the Bill include assisting businesses to recover from the effects of the Covid-19 pandemic, providing more clarity and certainty to both employers and employees about their rights and responsibilities, increasing employee/employer flexibility, and streamlining and simplifying the current industrial relations system.

The more significant changes proposed by the Bill include:

• providing a statutory definition of a ‘casual employee’ and introducing ‘casual conversion’ provisions for all national system casual employees (including Award-free employees)
• instituting ‘double-dipping’ protections that allow employers to set-off casual loading payments against other amounts that may be subsequently claimed by an employee (such as in the Rossato case mentioned in our other article)

• permitting certain Award-covered part-time employees to agree with their employers to work additional hours outside their ordinary hours of work at ordinary rates
• increasing the maximum penalties for contraventions of the Fair Work Act, introducing new penalties for systematic and dishonest wage underpayments (including jail for individuals), and granting ASIC the power to disqualify such individuals from managing a company
• simplifying the pre-approval and approval process for enterprise agreements and limiting the application of the Better Off Overall test (BOOT)
• conferring a power on the Fair Work Commission to approve certain enterprise agreements that fail the BOOT where it is in the public interest to do so, with such agreements to operate for a maximum of 2 years

Action Items

Until the proposed changes in their final form become law, employers should:

• continue to monitor all developments and changes to the draft legislation

• review and update their pro-forma employment agreements to ensure they remain compliant with all current laws and the requirements of all applicable modern awards and enterprise agreements

Miscellaneous Award 2020 – Extended Application

In mid 2020 the Fair Work Commission made a variation to the coverage provisions of the Miscellaneous Award 2020 (Award) which dramatically increased the potential application and scope of the Award to cover employees who would otherwise be ‘award-free’.

The Award has historically acted as a ‘catch-all’ to cover employees who were traditionally award-covered but who were not covered by any of the other modern awards.

Prior to 1 July 2020, the coverage provisions in the Award (including the previous 2010 version of the Award) included the following exclusions:

4.2 The award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards including managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.

4.3 The award does not cover employees:

(a) in an industry covered by a modern award who are not within a classification in that modern award; or

(b) in a class exempted by a modern award from its operation,

or employers in relation to those employees.

In March 2020 the Commission conducted a review of the Award and noted the Fair Work Act also contained provisions that excluded from award coverage any classes of employees who, because of the nature or seniority of their role, have traditionally not been covered by awards, or who perform work that is not of a similar nature to work traditionally regulated by awards.

The Commission therefore determined clauses 4.2 and 4.3 of the Award were largely redundant and liable to give rise to confusion and conflict.

The Commission considered the coverage terms would, for example, exclude from coverage any employee who performed work of a kind that was traditionally award-covered (e.g. a cleaner), but was nevertheless not covered by an award on account of the industry of the employer.

Thus the Award was varied with effect from 1 July 2020 by:

• amending clause 4.2 to read “The award does not cover managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists”
• deleting clause 4.3

As a result workers may no longer be excluded from this Award simply because they work in an industry that does not have a modern award and/or because their position does not correspond to a classification within a relevant industry award.

Employees who were previously considered to be award-free may now in fact be covered by this Award and therefore entitled to the minimum rates of pay and other benefits prescribed by it from 1 July 2020.

Action Items

In light of the Award variation every employer who employs staff they consider to be award-free must:

• re-consider the issue of modern award coverage under the Award

• ensure employees who are covered by the Award are being paid at or above the Award minimum entitlements from 1 July 2020 (and correct any underpayments and any other Award non-compliance)
• notify all affected employees of their coverage by the Award from 1 July 2020 and disclose any resulting underpayments
• amend their pro-forma employment agreements to refer to the Award, comply with all administrative requirements prescribed by the Award, and ensure that any set-off clause captures (to the extent legally possible) all applicable Award entitlements

The JobKeeper 2.0 Scheme

As part of the Federal Government’s initial response to the Covid-19 pandemic the JobKeeper scheme assisted to keep businesses afloat (and employees employed) through the payment of employee wage subsidies.

As the original JobKeeper scheme ended on 28 September 2020 and the effects of the Covid-19 pandemic are continuing, the Federal Government introduced the replacement ‘JobKeeper 2.0’ scheme to apply from 28 September 2020 to 28 March 2021.

As with the original JobKeeper scheme, JobKeeper 2.0 operates by providing eligible employers with fixed fortnightly wage subsidies (JobKeeper payments) that the employer is required to pass on to all eligible employees.

However, JobKeeper 2.0 provides two different rates of JobKeeper payments which reduce part-way through the life of the scheme as follows:

28 September 2020 to 3 January 2021 (Quarter 1):

$1,200 per fortnight for:

• eligible employees who worked 20 hours or more a week on average in the four week pay periods before either 1 March 2020 or 1 July 2020
• eligible business participants who were actively engaged in the business for 20 hours or more per week on average

$750 per fortnight for all other eligible employees and business participants

4 January 2021 to 28 March 2021 (Quarter 2):

$1,000 per fortnight for:

• eligible employees who worked 20 hours or more a week on average in the four week pay periods before either 1 March 2020 or 1 July 2020
• eligible business participants who were actively engaged in the business for 20 hours or more per week on average

$650 per fortnight for other eligible employees and business participants

Amongst other things:

• to be eligible for the JobKeeper 2.0 scheme, employers must have a GST turnover of less than $1 billion and must be able to demonstrate a decline in actual GST turnover of 30% or more for Quarter 1 and/or Quarter 2 compared to the same quarter in 2019
• employers with a GST turnover of more than $1 billion will also be eligible provided they can demonstrate a decline in actual GST turnover of 50% or more for the relevant quarters
• employers who were eligible under the original JobKeeper scheme are not required to re-register for JobKeeper 2.0 provided they meet and can demonstrate the above GST turnover requirements

Critically, the JobKeeper 2.0 scheme continues to allow employers to issue JobKeeper stand-down directions to their eligible employees, to make unilateral changes to eligible employees’ duties and location of work, and to request eligible employees agree to changes to their ordinary working hours.

Employers must still ensure any such directions and arrangements strictly comply with the mandated legal administrative requirements (eg, notice and consultation obligations).

Action Items

All eligible employers (including those grandfathered from the original JobKeeper scheme) must:

• notify the ATO of all eligible employees, business participants, and their associated rates of pay in respect of the quarters covered by the JobKeeper 2.0 scheme

• work closely with their accountants to ensure their GST turnover has been correctly calculated for each quarter, and ensure these amounts continue to meet the relevant turnover test requirements
• continue to pay their eligible employees at least the value of the JobKeeper subsidy each fortnight, including if any eligible employees are ordinarily paid less than this amount or would not be entitled to this amount due to stand-down
• ensure all business participants declare to the ATO if their active involvement with the business exceeds 20 hours or more per week on average in a four week pay period in order to avoid potential costly repayment obligations

The JobMaker Scheme

Whilst handing down the Federal Budget in October 2020, the Federal Government introduced another wage subsidy scheme aimed at addressing the increase in unemployment due to the ongoing Covid-19 pandemic and called the JobMaker scheme.

The purpose of the JobMaker scheme is to support and incentivise employers to create new jobs within their business and employ additional people, with eligible employers to receive the following ‘hiring credits’:

• $200 a week for each eligible employee hired who is aged 16-29 (up to a maximum credit of $10,400)
• $100 a week for each eligible employee hired who is aged 30-35 (up to a maximum credit of $5,200)

The hiring credit is payable weekly for a period of 12 months following the date on which the employee was hired, provided they are employed by the employer between 7 October 2020 and 6 October 2021.

Amongst other things, the employer must be able to demonstrate:

• an increase in their total employee headcount from 30 September 2020 (the ‘reference date’)
• an increase to their payroll compared to the three month period up to the reference date

In addition, the employer must be registered for PAYG withholding, report to the ATO via Single Touch Payroll, and be up-to-date with their tax lodgement obligations.

Whilst the JobMaker scheme does not exclude a business or employer based on GST turnover, any employer that is registered for the JobKeeper 2.0 scheme will automatically be ineligible for the JobMaker scheme.

Where an employer meets the eligibility requirements, hiring credits will only be paid for a new employee where the following conditions are met:

• the employer has already employed one additional employee during the scheme period (ie, the hiring credits are only payable for new employees following the first new employee)
• the employee is aged between 16 and 35 as at the date of commencement of employment
• the employee had received some other Federal Government unemployment benefit (eg, JobSeeker payment, Youth Allowance (Other), or Parenting Payment) within the three month period prior to employment
• the employee is employed to work an average of at least 20 hours per week

If the eligible employee ceases employment with the employer, the employer will no longer be able to claim hiring credits for that employee following the date of cessation.

Action Items

An employer who wishes to take advantage of the JobMaker scheme must:

• ensure they are not registered with any other disqualifying subsidy scheme (eg, JobKeeper 2.0)
• register online with the ATO
• create and fill as many suitable positions as possible with new eligible employees during the period between 7 October 2020 and 6 October 2021
• commence submitting claims for wage subsidies from 1 February 2021 (for all new roles created in the first reporting period up to 6 January 2021)
• submit all claims for wage subsidies within three months of each new position being filled (supported by all relevant substantiating documentation)

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By Stewart Gough  |  Principal  |  9806 7483  |  stewartg@matthewsfolbigg.com.au

By Phillip Brophy  |  Senior Commercial Lawyer  |  9806 7452  | phillipb@matthewsfolbigg.com.au

Liability limited by a scheme approved under Professional Standards Legislation.

DISCLAIMER: This article is provided to readers for their general information and on a complimentary basis. It contains a brief summary only and should not be relied upon or used as a definitive or complete statement of the relevant law.

Directors - Director ID Numbers are Coming

Company directors will be required to apply for a director identification number under changes to the Corporations Act.

The Treasury Laws Amendment (Registries Modernisation and Other Measures) Act 2020 (Cth) was enacted on 22 June 2020 and amends the Corporations Act 2001 (Cth) by implementing a system of director identification numbers (similar to ACN’s for companies).

Under the current system, companies supply personal information about their directors (such as their full name, date of birth, place of birth and residential address) to ASIC when those persons are appointed as directors.

A number of deficiencies have been identified with the current system including:

• ASIC does not vet the information supplied by companies

• although companies are required to have a signed consent to act form from each director, ASIC does not check this either, so a “dummy director” could be unwittingly or dishonestly registered as a director of a company

• the personal information of directors (including their residential addresses) is publicly available on the ASIC register, creating risks in terms of personal safety, identity fraud and privacy

• you cannot search the ASIC register by director name, so it is difficult to make inquiries in respect of “related parties” and potential “conflicts of interest”

To remedy these deficiencies, the director identification number system has been introduced. Amongst other things:

• the new register will be administered by the ATO

• directors will be required to apply for a director identification number within prescribed timeframes (to be specified in due course)

• it is expected that directors will need to submit personal information and identity documents to be verified (it is unclear to what extent personal information will be publicly available)

• further details will be provided in the regulations/legislative instrument

• the director identification number system is expected to commence in mid-2021

Each director identification number will be unique to the individual, and civil and criminal penalties will apply to any director who:

• fails to hold a director identification number or fails to apply for one within the prescribed timeframe

• knowingly provides false or misleading information about their identity to the registrar

• intentionally provides a false director identification number to a company or relevant authority

• knowingly applies for multiple director identification numbers

Action Item

Directors must ensure they comply with the new regime as significant penalties will apply for breaches.

Leasing – NSW COVID-19 Protections Extended

The NSW COVID-19 leasing regulations have been extended until 28 March 2021, albeit with some qualifications.

The Retail and Other Commercial Leases (COVID-19) Regulation (No. 3) 2020 (NSW) (Regulation) commenced on 1 January 2021. The effect of the Regulation is to extend the “prescribed period” to 28 March 2021.

Amongst other things:

• a landlord under an “impacted lease” cannot take any “prescribed action” against an “impacted lessee” (such as eviction, termination of the lease, or calling on any security provided by the tenant) due to non-payment of rent or outgoings during the “prescribed period”

• an impacted lessee has the right to re-negotiate their rent payable under an impacted lease, and the rent cannot be increased during the prescribed period (unless it is rent determined by reference to turnover)

However, the new Regulation has significantly narrowed the scope of these protections for tenants as:

• the Regulation only applies to retail leases and not commercial leases – previous versions of the regulation applied to both

• to qualify as an “impacted lessee”, the tenant must be eligible for Jobkeeper after 4 January 2021 (when new eligibility rules for Jobkeeper commence) and the tenant’s turnover (including corporate group turnover) for the 2018-19 financial year must be less than $5 million (previously this was $50 million)

The Regulation is not due to be repealed until 1 June 2021, leaving the door open for possible further extensions to the “prescribed period” depending on the state of the economy.

Action Item

Landlords and tenants should carefully review the new Regulation to determine whether it applies to their existing leases and ensure they comply with its terms as any non-compliance may have serious adverse consequences.

Businesses – Greater Exposure to Liability

The liability of a business for a consumer transaction (which can include business-to-business transactions) under the Australian Consumer Law will increase to $100,000 (up from $40,000).

This means that a broader range of commercial transactions will be afforded the protections of the “consumer guarantees” in the Australian Consumer Law which include amongst other things:

• goods must be of acceptable quality and fit for any disclosed purpose

• goods must match any description, sample or model

• services must be performed with due care and skill

• services must be supplied within a reasonable time

If a consumer guarantee is breached then, depending on the nature and severity of the breach, the consumer (which may include a business customer) may be entitled to:

• the repair, replacement or re-supply of the goods or services

• a refund

• termination of the contract for the supply of services

• compensatory damages

The consumer guarantees and remedies cannot be excluded by contract.

Action Item

Businesses must review and update their terms of trade to ensure they are compliant with the consumer guarantees and remedies available under the Australian Consumer Law.

Terms of Trade – Beware of Unlawful Unfair Contract Terms

The Federal Government has announced its intention to expand the scope of the unfair contract terms regime in the Australian Consumer Law.

To recap, a term in a “consumer contract” or “small business contract” (as defined in the Australian Consumer Law) is unfair if it meets all of the following:

• it would cause a significant imbalance in the rights and obligations of the parties under the contract

• it is not reasonably necessary to protect the legitimate interests of the party who would be advantaged by the term

• it would cause detriment (financial or otherwise) to a party if the term were to be applied or relied on

The Australian Consumer Law lists examples of unfair contract terms, such as a term which allows one party (but not the other party) to terminate the contract.

The planned changes include:

• making unfair contract terms unlawful and not merely voidable, thereby giving rise to penalties for businesses which include unfair contract terms in their standard form contracts (eg, in their terms of trade)

• expanding the definition of “small business contract” to a contract where one of the parties employs less than 100 people (previously it was 20 people) and has an annual turnover of less than $10 million

• removing the “upfront price payable” threshold for small business contracts (previously this was $300,000, or $1 million if the contract term was greater than 12 months)

• providing greater clarity about the meaning of a “standard form contract”

The proposed changes are designed to address the shortcomings of the current unfair contract terms regime which excluded too many small businesses on the basis of the “employee headcount” and “upfront price payable” tests.

The Commonwealth Treasury Department will now begin the process of preparing draft legislation for consultation.

Action Item

Although businesses must already ensure they comply with the existing unfair contract terms regime, if the proposed legislation is passed then it becomes even more imperative to remove/satisfactorily amend any unfair contract terms otherwise penalties will apply.

Terms of Trade – New Disclosure Obligations for NSW Businesses

NSW businesses must ensure they comply with the mandatory disclosure obligations in respect of their terms of trade.

The new section 47A of the Fair Trading Act 1987 (NSW) commenced operation on 1 July 2020 and, in essence, this requires NSW businesses to:

• take reasonable steps to ensure that consumers are aware of the substance and effect of any terms or conditions relating to the supply of goods or services which may substantially prejudice the interests of the consumer

• make this disclosure to consumers before the goods or services are supplied to the consumer

Examples of terms or conditions which “substantially prejudice” the interests of the consumer include but are not limited to:

• terms which exclude the liability of the supplier

• terms which impose a liability on the consumer for damage to goods which occurred prior to delivery

• terms allowing the supplier to provide personally identifiable information about that consumer to third parties

• exit fees, balloon payments and other similar payments which accrue upon the expiry or termination of an agreement

NSW Fair Trading has suggested that reasonable steps may include:

• using short, plain English summaries of onerous terms on the front page of a contract

• providing succinct information to consumers (eg, in information fact sheets or on the businesses’ online payments page)

• using scrollable pop-up text boxes for online purchases which the consumer can click “I accept” on

• using images to explain relevant information

• using prominently displayed signage at the supplier’s place of business

• obtaining the consumer’s express consent to the onerous terms (eg, having the consumer initial a contract or tick-a-box on an online form)

Whilst NSW Fair Trading applied a grace period between 1 July 2020 and 31 December 2020, as this has now ended businesses must ensure they comply with this regime.

Action Item

Businesses must ensure they properly disclose such contractual terms otherwise penalties and other detrimental and serious consequences for the business could arise.