News Flash

Competition law changes

Significant changes to Australia’s competition laws will soon come into effect, with the Parliament passing amendments to the Competition and Consumer Act 2010 (Cth).

The misuse of market power provisions in s 46 have been substantially revised, to now prohibit conduct that has the purpose, effect or likely effect of substantially lessening competition. This shifts the focus to the overall economic effect of the conduct, rather than its intended effect on a particular competitor. The current law prohibits conduct that has the purpose of damaging a competitor.

Other changes include a new prohibition on ‘concerted practice’ that has the purpose, effect or likely effect of substantially lessening competition. This is intended to catch informal conduct (such as price signalling) that the courts have held is not caught by the current law prohibiting arrangements that substantially lessen competition.

Third line forcing will no longer be prohibited per se, and will only be prohibited if it substantially lessens competition.

The exemption to the cartel provisions for joint ventures has been broadened.

Reverse onus on employers who do not keep proper records

Employers have an obligation to keep proper employee records, including detail of pay, overtime hours worked and annual leave entitlements.

Under recent changes to the Fair Work Act 2009 (Cth), if an employee makes an allegation against an employer (e.g. alleging that the employer has not paid the right overtime pay) and the employer has failed to keep proper records, the employee will be presumed to be right and the employer will have the burden of disproving the allegations.

It is therefore more important than ever for employers to maintain proper records.

Vacant Residential Property Tax

The Victorian Government has announced plans to introduce a new tax on properties in Melbourne that are left vacant for six months or longer.

Owners of vacant property in the inner and middle areas of Melbourne will be charged 1% of the property’s Capital Improved Value, with tax first being calculated on 1 January 2018. If you have vacant property in the inner or middle Melbourne areas, now might be the time to make it available for rent.

PPSR Registrations

If you are registering securities on the Personal Property Security Register, it is critical that you get the registration right. If you are registering a security against an ordinary company (not one acting as a trustee), you need to use the company’s ACN, not its ABN.

In OneSteel Manufacturing Pty Limited, the New South Wales Supreme Court held a registration was ineffective because the grantee only listed the company’s ABN in its PPSR registration, not its ACN. It proved a very costly mistake. The Court’s reason for taking this strict approach was that if someone had only searched the company by its ACN, the registration would not have appeared.

Changes to the Off the Plan stamp duty concession

The Victorian Government has announced that, as of 1 July 2017, only people who are buying a property as their principle place of residence will be eligible for the Off the Plan stamp duty concession.

Currently, anyone who buys a property Off the Plan can apply for the concession. The concession means a purchaser only pays duty on the value of the property as of the date they sign the contract, and not on the subsequent construction costs.

Franchisors to be liable for misconduct by franchisees (Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017)

The federal government has introduced a bill to the Parliament that, when enacted, could make a franchisor liable where its franchisees fail to meet their obligations to their employees.

A franchisor would be liable for their franchisee’s misconduct where the franchisor has significant influence or control over the franchisee’s affairs, and the franchisor knew or should have known the contravention was likely to occur.

AirBnB Case

Tenants who rent out their house to AirBnB guests could be in breach of their lease, the Supreme Court of Victoria has found.

In Swan v Uecker the tenants made the house they were renting available on AirBnB for between three and five nights. The Supreme Court found that the tenants had granted their AirBnB guests a lease, and accordingly breached their obligations under the Residential Tenancies Act. The landlord was successful in having the tenants evicted.

Workplace dispute changes

Up until recently, when an employee was dismissed on unlawful grounds or for exercising a workplace right, that dispute had to be determined by the Federal Court or the Federal Circuit Court if it could not be resolved by conciliation at the Fair Work Commission.

As from 1 January 2014, with the consent of both the employer and the employee, such a dispute can instead be resolved at the Commission by arbitration.

Accordingly, both the employer and employee are spared considerable time and expense.

New bullying laws have come into operation

All employers should revise their existing workplace policy to ensure that it addresses the issue of workplace bullying and sets out a clear complaints process should bullying occur.

Needless to say, if an employer has no such policy, now would be the perfect time to initiate one.  If a complaint of bullying is made, notwithstanding the content of any policy, it may well be worthwhile obtaining legal advice with the aim of minimising the fall out from any complaint.

Registering any interests under the Personal Property Securities Act

The transitional period for registering any interests under the Personal Property Securities Act is to expire on 31 January 2014.

Any security interest which pre-dates the commencement of the Personal Property Securities Act must be registered on the Personal Property Securities Register immediately.

If you are in the business of supplying goods on the basis that you retain ownership until paid or if you lease goods, then you have a registerable security interest in the goods.

If you do not register your security interest on the Register, this can mean that you will have no priority in recovering money owing to you if your customer becomes insolvent and is wound up.  Even though ownership of the goods has not changed, you stand to miss out in those circumstances.

If you purchase valuable second hand items, then it is essential to check the Register to ensure that you are buying those goods with a clear title.

New privacy legislation is to commence

There are 13 Australian privacy principles which will apply to both Federal Government and agencies, as well as to private sector companies and not for profit organisations which have revenue of more than $3,000,000.00 per annum.  Accordingly, most companies and organisations in Australia will need to have a privacy policy which complies with the new legislation to protect the private information of their customers and clients.

Changes to Franchising Code

The Franchising Code of Conduct has undergone a significant overhaul.

From 1 January 2015, there are new disclosure obligations for Franchisors and so current disclosure documents will need updating.

Restraint of trade, marketing funds and advertising fees have also changed.

Both Franchisors and Franchisees must act honestly and in good faith.  They must co-operate to achieve the purposes of their agreement.

Penalties for breach of the Code are now substantive.