The Fairness Test will apply to all AWAs that are lodged on or after 7 May 2007 if the relevant employee's annual income is less than $75,000. In addition, all Collective Agreements lodged on or after 7 May 2007 will be subject to the Fairness Test. The Fairness Test has been designed to ensure that fair compensation is paid to employees if any of the following protected award conditions have been removed or altered:

1. penalty rates (including those rates applicable for working on weekends and public holidays);
2. shift and overtime loading;
3. monetary allowances;
4. annual leave loading;
5. Public Holidays;
6. rest breaks; and
7. incentive based payments and bonuses.

The Fairness Test will involve the Workplace Authority considering all monetary and non-monetary compensation which an employer proposes to pay to an employee, relative to these protected award conditions. Accordingly, if after consideration of the proposed terms of an AWA or Collective Agreement, the Workplace Authority concludes that the employee's conditions of employment are not at least as favourable as the applicable protected award conditions, then the Workplace Authority will issue an advice to the employer confirming that the Workplace Authority considers that the proposed agreement is unfair. The advice issued by the Workplace Authority will set out why the agreement is considered unfair, how the agreement could be remedied and how much backpay the Workplace Authority considers payable in order to fairly compensate the employee/s. Following receipt of the advice from the Workplace Authority, the parties will have 14 days in which to agree on revised terms. If changes are not made to the proposed agreement within that time, the agreement will be void.

These amendments have a significant effect on the flexibility of terms of AWAs and Collective Agreements. Unfortunately, although already enforceable, the parameters of the Fairness Test are not yet clear as the Federal Government will not be tabling the relevant amending legislation until the next parliamentary sittings. Prime Minister, John Howard, has advised employers to err on the side of caution when drafting workplace agreements until the exact scope of the Fairness Test has been legislated. It has also been confirmed that employers can lodge a proposed agreement with the Workplace Authority for pre-lodgment assessment with respect to the Fairness Test. In the meantime, employers should be conscious of the need to ensure that any previously acceptable 'template' agreement, proposed Collective Agreement or relevant AWA lodged with the Workplace Authority after 7 May 2007 adequately compensates employees for any lost or modified protected award conditions.

For further information, please contact a member of our Statewide Employment and Workplace Relations Team.

and your business structure

Today, the rural landscape is dominated by succession planning, property restructuring and enterprise expansion. The acquisition and disposal of landholdings presents an opportunity to review your business structure that should not be missed. Partner Michael Keir and Senior Associate Connie Navarro outline the main factors for consideration by buyers and sellers of rural properties and those considering a change of business structure.

Ownership Structure

Advice on ownership structures should take into account a number of matters relevant to your particular circumstances, both present and future, including:

• asset protection and minimisation of exposure to risk, including consideration of any family law or insolvency issues;
• stamp duty, finance and taxation considerations;
• flexibility to allow for unforeseen circumstances, different activities, and perhaps a cost effective inter-generational transfer of capital and business assets;
• any restrictions on ownership structures contained in the Land Act 1994, and in the case of State leasehold land, within the conditions of the lease;
• the decision making process relating to day-to-day matters and extraordinary transactions;
• guidelines addressing a change in owners or participants, within a joint venture, partnership or corporate structure; and
• succession planning and exit strategies.

Matters for the Buyer

The acquisition of rural property involves a substantial outlay and it is appropriate that a commensurate degree of time, energy and effort is allocated to financial, tax and legal due diligence enquiries of the proposed enterprise.

Some of the headline issues (other than structure) that require particular attention include:

• water licences, permits, authorities and entitlements, including conditions and obligations on the licence holder;
• finance arrangements;
• vegetation management;
• mining tenements and rights over and in the vicinity of the property;
• in relation to State leasehold land, existing renewal processes and timeframes, along with the impact and obligations as a result of the Draft State Rural Leasehold Land Strategy and proposed amendments to the Land Act 1994; and
• enquiries with infrastructure and service providers in relation to existing and proposed requirements for all or part of the property.

Matters for the Seller

Prior to marketing a property for sale, a seller should ensure the affairs of the property are up to date and accurate to facilitate a smooth transaction.

Appropriate disclosure in the contract of sale, of all matters having an impact or potential impact upon the property and its productivity, will enable any issues to be safely dealt with upfront.  Just one example involves contaminated land disclosure by the seller relating to, amongst other items, livestock dips, spray races and fuel storage upon the property. Appropriate notification at the time of contract is a critical issue for the seller, as a failure to do so in the correct manner may result in the contract no longer being enforceable against the buyer.

The seller should also consider matters relating to the transfer of licences and employees, along with Goods and Services Tax and Capital Gains Tax implications on the sale of the assets.

For further information, please contact a member of our Statewide Agri-business team.

reforms to immigration laws in 2007

This year will see significant developments in the area of immigration law. In order to avoid prosecution and incurring fines for non-compliance, employers of foreign workers should gain an understanding of the visa entry requirements and ensure that all staff meet the requirement for legal employment in Australia. Partner Tony Hogarth examines some of the changes, including new offences for employing illegal migrants, and amendments to the requirements for obtaining working visas.

New Offences under the Migration Act

The Migration Amendment (Employer Sanctions) Act 2007 was assented to on 19 February 2007, amending Division 12, Part 2 of the Migration Act 1958 ("the Migration Act"). The new legislation creates an offence for a person or business to either "knowingly or recklessly" allow a non-citizen to work illegally, or refers an illegal non-citizen to work for another.

The amendments place particular emphasis on the role of referral agencies. In particular sections 245AD and 245AE, which specifically apply to persons who are "operating a referral service", will be introduced to the Migration Act. The definition of "referral service" will be interpreted broadly to include job networks, labour hire companies and even backpacker hostels.

Fines of up to $13,200.00 with up to two years punishment for individuals, and $66,000.00 for businesses, will be imposed under these provisions.

Which businesses will be captured?

While the new offences target employment agencies and labour hire companies, employers in other industries could find themselves caught under the new provisions for failing to conduct adequate searches on the background of employees. In particular, businesses operating in the hospitality, agriculture, manufacturing, construction, transportation and entertainment industries where a large percentage of foreign workers are employed, should be aware of their obligations under the Migration Act.

How can businesses protect themselves?

Fortunately, the requirement of "knowingly or recklessly" will be interpreted strictly, and liability will not extend to an "innocent business operator" who simply employs an illegal worker hired through a referral service.

Checking the "work rights" of all employees is the simplest and most efficient means of avoiding liability under the new provisions.  Employers can do this by conducting a search using an "Entitlement Verification Online" system, or by requesting that overseas workers produce their passport, which will include any applicable work rights.

Skilled Working Visa Revisions

In the midst of a skills shortage crisis in Australia, more employers are turning to overseas markets to find candidates. Accordingly, there has been pressure from industry for the level of English language ability required by those obtaining a General Skilled Migration Visa ("GSM Visa") to be revised.

As part of the criteria for GSM Visas, applicants must score a minimum number of 120 "points" on the GSM Points Test. An individual's points are determined by taking a number of factors into consideration including English language ability, relevant work experience and Australian tertiary qualifications. It has been asserted that, among other things, the minimum number of points is set too low, and further that the assessment process is not fair to all applicants. The Federal Government Department of Immigration and Citizenship has advised that the following measures will be taken to address these concerns:

• the English language points requirement will be increased;
• greater emphasis will be placed on skilled work experience;
• bonus points for sponsored individuals or capital investors will be removed; and
• work experience undertaken in any "relevant" rather than specific "closely related" field will satisfy the requirements of compulsory work experience.

For further information or advice relating to migration laws, please contact one of our five Registered Migration Agents ("RMA") Statewide.

Tony Hogarth | RMA No 9357386
Matthew Bowen | RMA No 9472546
Michael Keir | RMA No 0635783
Barry Taylor | RMA No 0635776
Jodie Miller | RMA No 0639992

compulsory from 1 July 2007

The introduction of the Fire and Rescue Service Amendment Act 2006 ("the Act") creates new obligations with respect to the installation, use and maintenance of smoke alarms in domestic dwellings.  Consultant Matthew Bowen explains the changes and how they affect you.

Currently in Queensland, homes built post 1997 are required by the Building Code of Australia (BCA) to have mains-wired smoke alarms installed. Residences built pre 1997 are only required to have smoke alarms installed if required by a building certifier when renovations are carried out to more than 50% of the original building.

The new obligations created by the Act apply to all domestic dwellings including houses and units of certain classes regardless of their date of construction and are as follows:

1. require smoke alarms complying with Australian Standard 3786-1993 to be installed in domestic dwellings in accordance with the requirements of the BCA;
2. require that smoke alarms be installed in the locations in the home that are currently specified for new homes under the BCA;
3. provide for ongoing smoke alarm testing, cleaning and maintenance requirements for both lessors and tenants;
4. prohibit people interfering with smoke alarms except for the legitimate purpose of testing, cleaning or maintaining the alarm; and
5. require a seller of land containing a domestic dwelling to give written notice to a buyer on or before the date of possession as to whether smoke alarms have been installed and maintained in accordance with this Act. Notice to this effect must also be given to the Department of Natural Resources and Mines. This will be similar to the process currently used for approved safety switches. We understand that the REIQ House and Land Contract will be updated to include smoke alarm provisions.  Failure to provide this notice will result in a fine of five penalty units, which is currently valued at $375.

The Act also amends the Residential Tenancies Act 1994 to provide a requirement for landlords to enter the premises to comply with the requirements of the:

1. Fire and Rescue Service Act 1990 in relation to smoke alarms (as outlined above); and
2. Electrical Safety Act 2002 in relation to approved safety switches.

For further information on these requirements or on any other property matter, please contact a member of our Statewide Commercial Law team.

giving back to the cairns community

An avid supporter of charities, sports, the arts and the Cairns community as a whole, businessman John O'Brien has been an influential figure in shaping the city's society for several years.

A successful local operator, John is the owner of Pacific Toyota and co-owner of the Cairns Taipans franchise.

Due to his dedication to supporting the city, John has been described by Cairns Mayor Kevin Byrne as a "leading figure in developing the fabric of community in Cairns". Humbled by this description, John attributes his community efforts to a passion for the region, which has grown since he came to Cairns in 1967.

"I've grown to love the place as a city. More importantly, Cairns has presented me with many opportunities and I think it's a pre-requisite for people who have had good opportunities from a city to put back into the community," John said.

John started out in Cairns as a clerk at the courthouse. After that, he contributed in small ways to the community, including working with the racing and other sporting clubs and doing sports reporting for the radio. However, it was when he got into business full time that he recognised the opportunities Cairns had given him.

"That's when the seed was planted in relation to me giving back to the community," he said.

In forty years, John has witnessed Cairns' extraordinary growth. Two events which John identifies as significant to Cairns' growth include the opening of the Cairns International airport in the early 1980s and the establishment of the Cairns Taipans basketball team, Cairns' only elite National sporting team, in 1999.

Today, as a leading force in the NBL, the Taipans bring greater recognition to Cairns, helping it make the transition from small regional town to a vibrant metropolitan centre. John has been heavily involved with the Taipans, and while the club has met with many hurdles, John's contributions have helped to retain their presence in Cairns. 

John's longstanding contribution to society has earned him recognition as the Cairns citizen of the year in 2003 and a Member of Australia Award, which was presented to him in June 2006.

John's contributions to the region have always been coupled with a strong ambition for the future. This is evident in his active participation as a Director of Advance Cairns, an organisation that seeks to develop economic opportunities for the Far North Queensland region. The growing Cairns events industry also benefits from John's ambition. He is the chairman of Events Cairns, an organisation that attracts and conducts major sporting and cultural events in and around Cairns.

With a clear vision for continued growth in Cairns, John said he sees everything very positively for the city's future.

"What I'd like to see - and what Advance Cairns is very conscious of - is to grow the base of the economy. At one stage Cairns very heavily relied on the sugar industry, and it grew to be slanted strongly towards tourism. Our economy now is much more broad based and I believe in continuing to endeavour this," he said.

"Cairns has got a great future, and how great it is depends on the contributions from local businesses and the efforts they're prepared to put behind the wheel."

John has been a valued MacDonnells client for decades. The firm has proudly witnessed his active involvement within the Cairns region for many years and shares his vision for continued strong growth in the coming years.

MacDonnells has enjoyed significant expansion, particularly over the past three years growing its capability in Brisbane, Townsville and Cairns. The firm consistently demonstrates that it has the professionals with specialist expertise to partner private, corporate and government clients with a full range of legal advice and action.

MacDonnells Board Chairman, Russell Beer said the firm was committed to its clients and continual improvement, "we have recently welcomed a new executive team that will guide and support the firm's position as a leader in the provision of legal services. We see this as being of great benefit to clients by providing cost effective business solutions through increased expediency and quality of service as well as capability and capacity".

MacDonnells Executive Team

Lois Fordham | Chief Executive Officer
FAICD, FAIM
Lois Fordham has extensive executive management experience including strategy and business planning, structuring and development of start-ups, change management and re-engineering, finance, HR, commercial business development (both national and international), and information technology. Prior to joining MacDonnells, Lois held the position of Director and CFO at the Australian Sports Commission. Lois was also the inaugural National CEO of Ebsworth & Ebsworth Lawyers where she was responsible for financial integration of this National firm.

Nick Smith | ICT Director
Nick Smith holds an Honours Degree in Organic Chemistry from Adelaide University and a Master of Business and Technology at the University of New South Wales. Nick has worked in London, Sydney, Melbourne, Canberra, Zanzibar and Brisbane across a number of industries including Finance, Banking, Insurance, Manufacturing and Government. Most recently Nick held the position of IT Manager at the Australian Institute of Sport.

Susan White | Human Resources Director
Susan White holds degrees in Strategic Human Resources Management and Business Administration and has more than 20 years HR experience. For 9 years, Susan held the position of Executive Director, HR/Corporate Policy, with global professional services organisation WorleyParsons, where she was responsible for global corporate HR and operational HR for Africa, Asia and the Middle East. Previously Susan worked with Santos, Union Switch & Signal, and for 11 years in HR and OH&S consulting.

Katie Bickford | Business Development and Marketing Director
FAIM
Katie Bickford has more than 18 years experience as a senior executive in business development, marketing and communication. Her experience includes almost every facet of business management from developing business, risk and reputation management to strategic positioning, community consultation, brand profiling, marketing, corporate social responsibility and change-management. Katie has held senior business development, marketing and communications positions with government, Qantas Airways Ltd, CSR Limited, and most recently as Director Executive Management with the Phillips Group.

MacDonnells is pleased to announce the following new appointments:

Saul Holt, Lawyer | Litigation

Jeffrey Smith, Lawyer | Employment & Workplace Relations

Dave Cheng, Lawyer | Commercial & Property

Dhakshmi Sivanathan, Lawyer | Family

Tania Carvalho, Lawyer | Commercial

Talayeh Saidi, Lawyer | Commercial

Gordon Stünzner, Lawyer | Commercial

Jodie Miller, Registered Migration Agent No. 0639992 | Migration