Latest publications
The “Weinstein Clause”: What is it? Could it be coming to Australia?
What is the “Weinstein Clause”? The disturbing revelations about Harvey Weinstein and other entertainment luminaries have put sexual harassment firmly on the agenda, emboldening victims to come forward to share experiences and pursue claims, leading to the rise of the #MeToo and #TimesUp movements internationally, and #NowAustralia locally. The latest consequence of…
Do you have to pay an employee where their own conduct has prevented them from performing their job?
An employer might be forgiven for thinking that where an employee’s conduct has rendered them unable to perform their role, then there is no obligation to pay them wages for the relevant period of downtime. However, this question is one which is now the subject of a Full Bench decision of…
Dismissing employees on grounds of incapacity where the employer is alleged to have caused the incapacity
One of the most challenging issues employers face is dealing with employees who are not well enough to perform their duties. There sometimes comes a point where – when faced with an employee who has been on an extended period of sick leave — the employer considers the possibility of terminating the employment…
Right to terminate contracts for insolvency
“Ipso facto” clauses are clauses which allow a party to terminate a contract if the other party suffers an insolvency event. These provisions are enforceable even if the insolvent party has otherwise continued to perform its obligations under the contract. Some important reforms came into force on 1 July 2018 which restrict the operation…
Establishment fees in private financing transactions
As the banks have tightened their lending criteria, we have been working with a number of private financiers who have increased their activity to satisfy the demand for debt finance in the SME market. Most lenders charge borrowers an establishment fee to help recover the costs of establishing a loan facility. The…
Everyone lies in their job applications… so can I fire them?
There is a common perception that most people lie in their résumés and job applications. Whether it be the exaggerating the seniority of a role, extending the length of time you actually worked in a particular position or describing a particular epoch as “time spent travelling” to avoid disclosing a short but ill-fated period of…
The AHRC and Criminal Record Discrimination: A Toothless Tiger
The recent AHRC report into discrimination in employment on the basis of criminal record, BE v Suncorp Group Ltd [2018] AusHRC 121, has garnered significant media attention and community debate. What it serves to highlight is that the Australian Human Rights Commission (AHRC) is a “toothless tiger” when it comes to discrimination…
Salacious facts, important principles
The attention an unfair dismissal case receives is sometimes proportionate to how salacious the underlying facts considered in the case are as opposed to the importance of any legal principles that emerge. Having said that, an interesting factual matrix (which sometimes results in a “tabloid” or “clickbait” treatment of a case)…
What’s in a name?
“I don’t believe a rose would be as nice if it was called a thistle or a skunk cabbage.” - LM Montgomery Changing an adult’s name In December 2015, Japan’s Supreme Court upheld a law dating back to the 19th Century that requires married couples to have the same surname. This law is still in…
School Holiday Time
“I have had a holiday, and I’d like to take it up professionally” - Kylie Minogue In 2006, amendments were made to the Family Law Act 1975 that required (amongst other things) the Courts to consider if parents should have equal shared parental responsibility for their children, and if so, whether…