How do the Casual Employee Changes Affect You?

How do the Casual Employee Changes Affect You?

How do the Casual Employee Changes Affect You?

Changes TO THE FAIR WORK ACT – MARCH 2021

In an effort to provide business with more confidence to employ people under casual and part time employment arrangements, a number of significant changes were made to the Fair Work Act, effective 27 March 2021, by the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021.

It appears that the Federal Parliament have taken the May 2020 decision in WorkPac Pty Ltd v Rossato (which was under appeal before the High Court at the time) into consideration in making changes to employment law.

The decision in Rossato had the effect that an employee who accepted casual employment, but was then engaged in such a way that they had either certainty about future work, or the days and hours of work that may be required of them, was in face a permanent employee entitled to paid leave entitlements. 

Unfortunately,  the Court went on to find that neither the contract of employment nor the law was sufficiently clear to allow the employer to off set casual loadings already paid to the employee against those leave entitlements. 

The concerns raised after this decision revolved around an employee’s ability to effectively ‘double dip’ against entitlements paid and the potential cost to employers with large casual work forces. 

WHO IS CONSIDERED A CASUAL EMPLOYEE?

Casual employment was not defined under the Fair Work 2009 and remained a term subject to interpretation of the Courts, until now.

This new definition of ‘casual employee’ applies across all Modern Awards, and all employment agreements not covered by an Award. 

15A Meaning of casual employee

(1) A person is a casual employee of an employer if:

(a) an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and

(b) the person accepts the offer on that basis; and

(c) the person is an employee as a result of that acceptance.

(2) For the purposes of subsection (1), in determining whether, at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had only to the following considerations:

(a) whether the employer can elect to offer work and whether the person can elect to accept or reject work;

(b) whether the person will work as required according to the needs of the employer;

(c) whether the employment is described as casual employment;

(d) whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.

(3) To avoid doubt, a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.

(4) To avoid doubt, the question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party.

(5) A person who commences employment as a result of acceptance of an offer of employment in accordance with subsection (1) remains a casual employee of the employer until:

(a) the employee’s employment is converted to full-time or part-time employment under Division 4A of Part 2-2; or

(b) the employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis.

WHAT DOES THIS MEAN FOR SMALL BUSINESS?

As a small business owner, you can now employ someone as a casual with confidence that the casual loading you pay them (25% under most Modern Awards) as compensation for not accruing paid leave entitlements, can be applied against any leave entitlements the employee might seek to claim as a permanent employee in the future. 

With clarity around the conversion from casual to permanent employee, the risk of employees claiming that they should be deemed a permanent employee in the future is also now reduced. 

 

Conversion to permanent employment is now simpler 

Under Part 2-2 of the Act, if you employ someone as a casual for 12 months and they have a regular pattern of employment during the last 6 months of that period, you must offer them conversion to permanent employment (attracting paid leave entitlements). 

The offer of conversion should be made at the end of any 6 month period where the regular pattern of employment they have undertaken could be converted to permanent part time or full time employment ‘without significant adjustment‘. 

The offer must be made in writing within 21 days of the end of the first 12 months of employment. This provision does place an obligation on an employer to offer a longer term casual who has secured a regular pattern of employment over 6 months after the initial 12 months of employment.  

If an employee rejects the offer of conversion, they remain a casual employee. 

The requirement to make an offer of conversion doe not apply:

  • to small business operators with less than 15 employees
  • if there are reasonable grounds not to make the offer (some examples are given in the Act).

If an employer decides not to offer conversion, the decision not to make an offer must also be given to an employee within 21 days of the end of their first 12 months of employment. 

An employee retains the right to ask for conversion at the end of any 6 month period of regular pattern of employment after the initial 12 months, provided that:

  • the employee has not previously rejected an offer of conversion
  • the employer has not previously issued a notice of grounds for not offering a conversion
  • the request is made more than 21 days after the employees first 12 months of employment

The Act specifically allows for employers and employees to reach agreement on conversion outside the provisions of the Act.  

Casual Employee Information Statement – Fair Work

When do you have to give a CEIS to an employee?

As an employer you will be familiar with the obligation to provide an Fair Work Information Statement to new employees which explains the National Employment Standards (NES).

With the inclusion of a definition of casual employment, employers now also have the obligation to provide a Casual Employee Information Statement to new casual employees. 

Small business employers (less than 15 employees) need to give their existing casual employees a copy of the CEIS as soon as possible after 27 March 2021.

Other employers have to give their existing casual employees a copy of the CEIS as soon as possible after 27 September 2021.

Need help as an Employer?

If you are struggling to understand your obligations as an employer, or just want to check how the recent changes in law impact you, get in touch through our contact form or by booking an appointment. 

Coaches and Consultants – 3 Legal Case Studies

Coaches and Consultants – 3 Legal Case Studies

Coaches and Consultants – 3 Legal Case Studies

Coaches and Consultants – 3 Legal Case Studies

The challenge with coaching or mentoring, whether that’s life coaching or business coaching, is that your students often expect you to do it for them instead of them doing it themselves.

This is completely contradictory to the sports setting where people understand that the coach is the person who does not end up on the field, who is not part of the game, and who supports the players get the best out of themselves.

As a coach you are likely to have a variety of offerings for your clients, which might include any one or more of:

  • downloadable, self-paced individual programs
  • moderation of online forums
  • facilitation of mastermind groups, online or offline
  • individual coaching sessions, in person or via technology
  • a combination of individual and group coaching sessions, in person or via technology 
  • face-to-face events 
  • consultancy 

Some of the coaches we work with have limited number high end programs which provide a combination of the different offerings above.

Due to the variety of different offerings the coaches we work with provide, rather than one case study, we will share three snap shots of the problems some of our coaches have encountered, and the solutions we provided.

We would also like to thank Si Harris, Business Strategist, for requesting these case studies.

PROBLEM 1 – managing expectations

Your advertising, and your Coaching Services Agreement should manage the expectations of your client. You should be clear before coaching commences that it is the client’s responsibility to get what they can out of the coaching program, and if the client does not participate fully, they will not get the results they expect.

It is also important that you carefully assess the capabilities of your potential client before agreeing to provide services to them. If it were obvious before coaching commenced that your potential client could not afford your services, you run the risk of ending up in dispute over payment. Similarly, if you recognise that your potential client has a particular personality trait or disorder that you do not want to manage, or do not have the qualifications or experience to manage, it is best not to start the relationship at all.  

CASE STUDY 1 – Complaint about Services

We have a coach who focuses on assisting their clients to develop a business plan. Business planning is not an easy process. It requires time and effort. This coach provides a 13-week program with the promise that at the end of the program their client would have a completed business plan.

The problem they faced was clients seeking refunds at the end of the program if they were not happy with their business plan.

We restructured the coach’s Coaching Services Agreement to clearly set out and include what the coach provided, what they did not provide and what actions the client was responsible for undertaking throughout the coaching program. The client had to sign up to their responsibilities and was responsible for completing different sections of a template business plan from the start of the coaching relationship. We also prepared a disclaimer for our coaching client’s website which clearly set out the limits of their services, and the obligations of the participant. The disclaimer was easily accessible through the footer of the website, reflected the terms of the Coaching Services Agreement and was in unambiguous plain English terms.

This agreement was tested by almost the first client who signed it.

That client turned up every week for thirteen weeks and consumed more than the allocated 90 min window of time allowed by the coach but failed to do any homework in between sessions and made no effort to prepare their own business plan.

The coach, just like the coach on a playing field, was there each week, supporting from the sidelines, encouraging the client to play, but the client consumed the attention only, and failed to play the game.

At the end of the program the client demanded a refund because they did not have a completed business plan that they were happy with, or at all.

The client had signed the Coaching Services Agreement, in that instance in wet ink, and was bound by its terms. They had also claimed they relied on representations on the website, enabling our client to also point to the disclaimer.

The coach was able to simply direct the client back to the plain English, unambiguous responsibilities the client had agreed to at the start of the relationship through the Coaching Services Agreement and disclaimer, and the complaint about services and demand for refund was not pursued. 

Note that it is important you fulfil on the promises you make about the delivery of your programs.

A 2011 Queensland QCAT series of cases involving Venzin Danielli Pty Ltd as defendant, required the coaching services provider to refund to four participants 77.5% of their program fees after the participants withdrew part way through the program for the provider’s “failure to provide the various benefits that were represented as flowing from participation in the Inspire Series program”. 

In that case, the coaching service provider over promised and under-delivered. Make sure your advertising is accurate and does not over promise what you can deliver. 

PROBLEM 2 – REFUNDS

Australian Consumer Law Guarantees

Before looking at case studies, it is important you know that a ‘no refunds’ policy is not supportable under Australian Consumer Law.  You CAN advise clients that a refund will not be provided if they change their mind about completing the program, there is a difference. 

If a provider of services with a value of less than AU$40,000 does not meet the following consumer guarantees:

  • provision of services with due care and skill
  • provision of services in a timely manner
  • provision of services that are fit for purpose

then the purchaser has a right to request a refund or replacement of the services.

For a major fault (an irreparable fault or collection of faults that would have influenced the purchaser not to buy in the first place if they had known about those faults), the purchaser is entitled to a refund.

High-end Coaching Programs

High end coaching programs are often year long programs with limited places and application processes before acceptance. It is not uncommon for coaches offering high end programs to allow participants to pay by instalment over time, rather than require the full amount up front.

So, what happens when someone gets part way through a coaching program and discovers they just do not want to finish it?

The first risk mitigation strategy we recommend for high end coaching programs is a clear application process, including a written, signed application accepting the terms and conditions of the program, and a face-to-face interview process. Applications and interviews can be conducted electronically. Applications can be signed electronically.

During the application process, as a coach, you can validly ask that your potential client tell you that they have considered the cost of the program and that participating in the program is not going to affect them badly financially.

Some providers we work with may it clear that to get the most out of the program, the participant will need to have further money to invest – say in set up costs for a new business or development costs in a property purchase – and the coach will also ask for confirmation that the possible further investment is affordable for the potential client.

CASE STUDY 2 – Refund request, or stop payment request, part way through program

So, what do you do when you get a request for release from a program that has not been paid in full, or a refund part way through a program? This happens for our coaching clients once or twice a year. 

When it comes to the Coaching Services Agreement, we make it clear that participation is limited, and the place purchased means someone else misses out. On that basis and taking into consideration the costs attributable to their participation, the whole of the program must be paid, whether paid by instalment or in full up front.

We ensure the wording is very clear regarding instalments and cannot be mistaken for a monthly fee. We also suggest a provision that makes the full balance of course fees payable if an instalment is not made on time. This allows for immediate debt recovery instead of having to wait until the end of the period for payment of the instalments.

If your Coaching Services Agreement has clear terms about the payment for a program, you will not be obliged to refund any amount received, or to forgive any payments still outstanding.

A 2015 Victorian VCAT case of Quick Coach Pty Ltd v Papalia made it clear that return of signed terms and conditions and a deposit, together with receipt of materials, attendance at some workshops and access to a website built for the client (although not the whole of the program), were sufficient to support an order that the client pay for the program in full.  

However, if your client is in genuine personal difficulty (such as having lost income due to a downturn resulting from COVID, or been diagnosed with cancer) then, regardless of the terms of your Coaching Services Agreement, you might consider releasing the person from the program without further payment, or partial refund of the program, or deferral of participation until a later date. Any agreement not to require full payment, or to defer participation, must be documented in a deed signed by you and the client.  

We have assisted our coaching clients to recover unpaid fees, and have also assisted clients to prepare a deed of release of a person from their program.

We have also had a client have to refund a portion of fees for a program where a tribunal expressed a view that the cost of the program was disproportionate to the benefits received, and where there were allegations of undue influence or high pressure sales tactics used in the sign up process. 

PROBLEM 3 – Protecting intellectual property

It is important to document your ideas and create tangible material as part of your programs. This can include printable materials like workbooks, or downloadable materials like PowerPoint presentations, or materials for online consumption like video or audio materials.  

Once you have any sort of material that can be reproduced, you can protect it under copyright law. Enforcing protection of your work may require you to start legal proceedings, but if you have already included specific terms in your Coaching Services Agreement about the use of your copyright material, you can specifically include all of the materials you use in your coaching delivery. 

Yes, someone can still take your ideas and run with them, but they won’t be able to closely copy what you have created, or you will be able to pursue them for infringement of your rights. If you can apply catch-phrases to what you have created, like Porter’s Five Forces Framework, then it can be easier to protect your ideas.

CASE STUDY 3 – What can you do with Coaching clients, or consultants who steal your stuff?

We had a new client who had developed and delivered a leadership program to an organisation without receiving payment of any part of the $15,000 fee up front, and without a clear agreement with the organisation. The head of the organisation refused to pay for the training delivered, rebranded the slides used in delivery of the program and started offering the program as something developed by the organisation.

Our client did have the option to start legal proceedings to recover payment for delivering the training, and for copyright infringement but was concerned about taking action to the expense and fear that the head of organisation’s partner was also a lawyer, and the organisation would probably not incur legal fees in defending that claim.

Unfortunately, our client decided not to take action and treated the event as an expensive lesson in business.

How could our coaching client have done it better? Our coaching client’s position would have been stronger:

  1. with a clear Coaching Services Agreement including specific provisions regarding copyright,
  2. if a wet ink or electronic signature was required on the Coaching Services Agreement before the booking was confirmed, or the agreement included other provisions to make it binding upon receipt of payment of deposit,
  3. if the Coaching Services agreement included a specific provision limiting the number of people to receive that coaching for the specified fee,
  4. if the Coaching Services Agreement required payment up-front of expenses (travel was involved) and a deposit before delivery, and
  5. if the Coaching Services Agreement included fixed dates for payment of the balance of fees, and provision for the application of interest and recovery of costs if debt recovery had to be pursued.

TAKE AWAY POINTS FOR COACHES AND CONSULTANTS –

  • Share a clear Coaching Services Agreement with your clients before the point of purchase
  • Ensure your agreement and advertising are consistent and accurate
  • Protect your intellectual property
  • Seek at least part payment up front
  • Ensure that payment terms are clear around the full amount to be paid, due dates for payment and any interest or acceleration of payments that apply if payments are not made when due.
  • Include a disclaimer to explain what you do not do for your clients
  • Seek applications from potential high end clients to check their ability to participate fully, and your ability to work with them.

Need Support as a Coach?

Would you like to improve your Coaching Services Agreement, your Online Program Terms & Conditions, your Disclaimer or  your Privacy procedures?  Let us know through our contact form or by booking an appointment. 

COVID-19 and Signing Contracts

COVID-19 and Signing Contracts

COVID-19 and Signing Contracts

COVID-19 and Signing Contracts

 *Last updated 12 July 2021*

Very few documents are legally required to have a ‘wet’ signature. That is a signature applied using pen and ink. 

Most business contracts you enter into don’t require a ‘wet’ signature and may not require a signature at all to be binding. Contracts are not formalised by a signature; a signature simply serves as good evidence that a person agreed to the contents of a contract. Some examples of documents that would normally need a wet signature are: 

  • Wills
  • powers of attorney
  • deeds
  • documents that need to be witnessed, verified or authenticated in some way
  • some court documents
  • some documents for lodgement with land titles offices
  • some governance documents, such as minutes of meetings of directors
  • some regulatory documents, depending on the regulator 

Since the introduction of electronic transactions legislation by the Australian federal government and most Australian state and territory governments around the year 2000, it has been possible to sign a lot of agreements electronically

Rules do apply. 

Broadly speaking, the requirements for using an electronic signature are:

  • you must be able to identify the person signing, either directly or through additional evidence
  • the person signing must agree to be bound by their signature
  • the method for identifying the signatory and his or her intention in the circumstances is reliable
  • all the parties agree to accept e-signatures, which agreement can be inferred by conduct 

Provided that all parties agree, a typewritten name can be used as a signature.  Consider that you may be one of many people in business who have a formal typewritten signature as a standard footer to your emails.

Case study

In Stellard’s case (Stellard Pty Ltd & anor v North Queensland Fuel Pty Ltd [2015] QSC 119) a signature was required because the transaction involved property. There requirement for a signature was in s.59 of the Queensland Property Law Act, which says “No action may be brought upon any contract for the sale… of land… unless the contract… or some memorandum or note of the contract, is in writing, and signed by the party to be charged…”

All exchanges relied upon were either via email, or by conversation. Stellard argued that they were entitled to rely on NQF’s acceptance of their offer to purchase, contained in an email, by virtue of the Queensland electronic transactions legislation. The Court decided that:

 

  • the parties agreed to accept electronic signatures through their conduct, being negotiation via email including stating the offer in the body of the email and receiving the acceptance in the body of an email
  • the identity of the person sending the email acceptance was found through evidence of conversations held earlier than the date of the email, and an admission of the sender that they were the person sending the email

What does that mean for you? 

Be aware of what you are negotiating and agreeing to by email. 

CHANGES TO 1 JULY 2021

Federal

On 23 April 2021 ASIC extended their temporary ‘no action’ position on the following activities for reporting dates up to 7 July 2021:

  • the holding of meetings using appropriate technology;•
  • electronic dispatch of notices of meeting including supplementary notices; and•
  • public companies holding AGMs within an additional 2 months on the extended term.

There is no allowance or exemption for signing documents electronically. Wet signatures are still required for minutes of meeting, although scanned copies of documents can be kept.

ACT

On 20 February 2021 The ACT Parliament extended the timeframe of relevant COVID legislation.

NSW

On 25 March 2021 NSW Parliament extended COVID timeframes under a variety of legislation with the COVID-19 Recovery Act 2021, to 31 December 2021, but excluded the Electronic Transactions legislation, which had been previously amended on 28 September 2020 by the Stronger Communities Legislation Amendment (Courts and Civil) Act 2020 until 1 January 2022.

QLD

On 14 April 2021 amending legislation was passed by QLD Parliament to extend the expiry date of various legislation impacted by COVID measures to 30 September 2021. However, the time available for electronic signing and witnessing of Wills and enduring powers of attorney ended on 1 July 2021.  

SA

Changes were made by SA Parliament in February 2021.

VIC

On 23 March 2021 Victoria led the way for all Australian jurisdictions by permanently adopting changes to the Electronic Transactions (Victoria) Act 2000, enabling witnessing of signatures by audio visual link, and the electronic creation and signing of Deeds and mortgages.

No other changes were tabled before parliaments around the country before 31 March 2021.

Signing documents during COVID-19 restrictions

After COVID-19 was declared a pandemic and Australian federal and state governments started enacting temporary legislation for greater flexibility, laws were introduced to change the way certain documents, which usually required a wet signature and a witness, could be signed using electronic means.

Changes are not consistent around Australia. Each state or territory has slightly different requirements and not every state or territory enacted relevant laws, so you do need to be conscious of the location of the person signing, and the applicable rules in that place, and when those rules will expire:

 

 

Legislation

Start Date

Expiry Date

Federal

Corporations (Coronavirus Economic Response) Determination (No. 3) 2020

5 May 2020

EXPIRED*

ACT

COVID-19 Emergency Response Act 2020

14 May 2020

12* months after COVID emergency ends

NSW

Stronger Communities Legislation Amendment (Courts and Civil) Act 2020 adding Part 2B to the Electronic Transactions Act 2000 

28 Sep 2020

 

1 Jan 2022

NT

N/A

 

 

QLD

Justice Legislation (COVID-19 Emergency Response—Wills and Enduring Documents) Regulation 2020

Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020

15 May 2020

 

EXPIRED for Wills

30 Sep 2021 for Deeds

SA

COVID-19 Emergency Response (Section 16) Regulations 2020

20 Apr 2020

later of 31 May 2021 or 28 days after COVID emergency ends

Tas

Notice under Section 17 of COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020

3 Apr 2020

EXPIRED 

Vic

Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 amending Electronic Transactions Act

 

PERMANENT CHANGE

WA

COVID-19 Response and Economic Recovery Omnibus Act 2020

12 Sept 2020

31 Dec 2021

*The above table mentions only the first applicable legislation, which is likely to have been amended by further legislation over time, resulting the expiry dates listed. Expiry dates are subject to change.

Signing of corporate documents under australian federal law during covid

Federal law covers signing for and on behalf of companies, as well as the holding of shareholder or member meetings electronically. The legislation was due to expire on 5 November 2020 but was extended.

The Corporations Act is specifically excluded from electronic transactions legislation, so you will normally require a wet signature of directors or secretaries who are signing a document in accordance with s.127 of that Act. The document can still be shared electronically, it just cannot be signed electronically.

Pursuant to s.127 you would usually require two directors, a company secretary and a director or a sole director and secretary to sign on behalf of a company. You usually require both people (if two are signing) to sign the same document on behalf of the company.

The temporary legislation allows for electronic application of signatures when signing for a company, which can occur on separate documents, provided that each document contains the entire contents of the document, and a method was applied to identify each person signing and their intent to be bound, and that method was reliable.

A document signed on behalf of a company another way can still be binding. Section 127 does not limit the ways in which a company can sign a document. 

Permanent changes to the Corporations Act have now been tabled before parliament for consideration in 2021 which would allow for electronic signatures and virtual meetings.

Nothing in the legislation appears to enable the electronic signing of minutes of meetings, whether of a board or shareholders.

Signing documents in the Australian Capital Territory (ACT) or New South Wales (NSW) during covid 

Measures were introduced to allow for the witnessing and attestation of documents including affidavits, Wills, powers of attorney and health directives. Witnessing can be done by audio visual link provided that:

  • both video and audio are active
  • the witness watches the signatory sign in real time
  • the witness confirms the signing was witnessed by signing the document or a copy of it
  • the witness is reasonably satisfied that the document signed and the document witnessed are the same
  • the witness includes a statement on the document about how the document was witnessed in accordance with the ACT legislation.

To demonstrate confirmation of witnessing the original signature, that can be done by signing a full copy of the document (counterpart) as soon as possible after witnessing the original or signing a scanned copy of the document signed by the original signatory.

Signing documents in the Northern Territory (NT) during covid

Although the NT does have electronic transactions legislation, no specific amendments have been made to that legislation as a result of COVID. As a result, any documents that needed a wet signature in the NT before COVID restrictions started, still do.

Signing documents in Queensland (Qld) during covid

Queensland appears to have adopted the most complicated provisions. In Queensland, the witnessing a Will, powers of attorney, affidavit or statutory declaration can be completed by audio visual link, provided that:

  • the person witnessing is an Australian legal practitioner, justice of the peace (JP) or commissioner of declarations, notary public or other person mentioned in the regulations
  • the witness completes a certificate that is kept with the document
  • the witness sees the person sign in real time
  • the person signing signs each page of the document
  • the witness is satisfied that the signing person is making the document freely and voluntarily

Confirmation of witnessing, in addition to the required certificate, can be done by signing each page of a counterpart or scanned copy of the document signed by the original signatory, as soon as possible.

There are additional variations for affidavits and statutory declarations.

Documents other than Wills and enduring powers of attorney can also be signed electronically provided the method used to identify the signatory and their intend to be bound is reliable, in the circumstances.

Deeds can be signed electronically without a witness provided that the document is clearly identified as a deed. This applies to both individuals and companies, and for companies, where a second director or secretary is to sign, they can sign a counterpart.

Signing documents in South Australia (SA) during covid

While South Australia made amendments to make meetings by electronic means easier, rather than expanding the ability to apply electronic signatures to documents they simply expanded the categories of professional people documents could be sworn or attested in front of.

Witnessing documents by audio visual means is expressly excluded.

Some alterations were made for property related transactions in June 2020.

Signing documents in Tasmania (TAS) during COVID

Rather than specifying document, in Tasmania the legislation is focused on actions taken. So where a document requires a physical actions such as the making, taking, receiving, swearing, signing or witnessing of a document, those actions can be completed electronically, or by audio visual link provided that:

  • the witness watches the signatory sign in real time
  • the witness attests to the signing by signing the document or a copy of it
  • the witness includes a statement on the document about how the document was witnessed in accordance with the Tasmanian legislation.

Signing documents in Victoria (VIC) during COVID

Victoria expanded the categories of people who could take oaths and affidavits first, before then introducing broader measures for the use of electronic signatures. Timing is very important in Victoria. A witness must apply their signature on the same day as the person signing the document.

Witnessing is permitted by audio visual link provided that:

  • the witness watches the signatory sign in real time
  • the witness confirms the signing was witnessed by signing the document or a copy of it on the same day
  • the witness includes a statement on the document about how the document was witnessed in accordance with the Victorian regulation.

There are specific rules around attachments, counterparts and copies of documents that must be met to comply with Victorian requirements.

Under the Victorian Oaths Act a person can electronically write anything on a document, sign, initial or date it electronically under the COVID rules. There is also provision for Wills to be signed and witnessed by audio visual link, provided that the actions result in one document with all signatures and statements relevant to any signing by electronic means, and that all actions are taken on the same day.

Signing documents in Western Australia (WA) during COVID

Witnessing can be done by audio visual link provided that:

  • both video and audio are active
  • the witness watches the signatory sign in real time
  • the witness is satisfied that the document signed and the document witnessed are the same
  • the witness signs the document or a copy of it
  • the witness includes a statement on the document about how the document was witnessed in accordance with s.23 of the WA legislation.

To demonstrate confirmation of witnessing the original signature, that can be done by signing a full copy of the document (counterpart) as soon as possible after witnessing the original or signing a scanned copy of the document signed by the original signatory.

Want more information?

Where documents do need to be signed in a particular way, or witnessed, to be enforceable, then it’s important you understand the requirements that apply in the place of the person signing if you want to be able to rely on those documents in the future. 

If you need help with deeds, agreements, Wills or powers of attorney and worry about what COVID rules apply, contact us. 

Event Release Forms: Everything Yours Should Include

Event Release Forms: Everything Yours Should Include

Event Release Forms: Everything Yours Should Include

event release forms: everything yours should include

As a small business owner, do you run events, co-host events, sponsor events or plan to run events to help propel your business forward faster?

The advantages of holding events are obvious. Not only will you be meeting new people and adding new prospects to your client list, but it is also a good opportunity for you to gain valuable insights and understand the market better. Events can be face-to-face or online or a combination of both.

Events come in many shapes and sizes – meetings, conferences, online classes, training sessions, networking sessions, product launches, fundraising events and many more. No matter what type of event it is, one thing that you should always consider having is an Event Release Form.

Essentially, an Event Release Form is a contract or agreement for participation in an event. Like all other contracts, its purpose is to protect your business interests and limit your liabilities, but also to protect the interests of your participants. Just like running a business, you do not want to expose yourself or your valuable clients to any unnecessary risks when running an event.

Hand-shake contracts are great in theory. If you have ever been in a situation where you believed everyone was on the same page and later found out that there was a miscommunication, then you probably understand the importance of having a written contract.

Setting the rules for participation just before the start of an event can remind everyone of their expectations and obligations.

WHAT is the purpose of an event release form?

The event release form is to:

  • introduce the purpose of the event, eg. education only
  • remind participants of what is excluded, eg. not providing legal advice
  • require participants to take responsibility for their own behaviour, mental and physical health during the event
  • make parents or guardians aware of their responsibility for any child they bring
  • alert participants to the fact that other products or services might be promoted for sale
  • refer to privacy obligations
  • cover your rules for recording of the event by you and your participants
  • limit your liability

when do you provide an event release form?

For a face-to-face event, you want participants to read and sign your form before they enter the event venue. 

For an online event, you want participants to check a box agreeing to your release before they can access the event online.

how long should you keep an event release form?

You should keep a copy of your event release forms for as long as your business operations suggest you may have a risk to the business arising from that event.  Generally speaking, financial claims are barred 6 years after becoming aware of a right to claim and personal injury claims are barred 3 years after becoming aware of a right to claim.  Many businesses keep documents for 7 years for accounting reporting purposes.

can you use an event release form for multiple events?

You should require participants to complete a new form each time they attend an event, even if the one participant attends a variety of events you have on offer. A multi-day event, where it is clearly still the one event, will not need a daily release form, or a release form for each session, just a release for the event itself.

do you need separate event release forms for children?

It is easier to create a release form that have room to name one or more children who have come with their parent or guardian, and which binds the parent or guardian in respect of each child. You don’t need to have separate forms.

what if a participant does not want to be filmed?

If a participant doesn’t want to be included in photos or videos, then consider allocating a part of the room that is not going to be filmed or photographed and ask that they sit in that area, explaining that seating elsewhere will be caught on film. For online participants, you can ask that they keep video turned off to avoid being captured or use technology to exclude them.

Postproduction editing tends to be complicated and expensive. Practical measures before filming make permissions easier to manage.

what if we want to restrict participants from recording the event?

Your terms and conditions before registering for the event should specify that recording will be prohibited, then the Event Release Form should also state that recording is prohibited and participants may be removed if caught, and an announcement should also be made at the beginning of the event. As an alternative, some event organisers are now arranging specific digital interactive activities during the event to encourage participants to share it live on social media or ask questions during the event. 

is the event release form the same as event terms and conditions?

Your Event Release Form is NOT the same as the terms and conditions your participant signed up to before they purchased or registered for your event. Event terms and conditions are more comprehensive and need to be provided before the point of purchase, and agreed to by the participant, to be binding.

Event terms and conditions will cover in detail the things like:

1. What are you offering, and what are you not providing? 

Introduce what the event is about and what services you will be providing. This is to help set clear expectations for participants and prevent any disputes from arising as a result of ‘unmet’ expectations.

If you are running a physical event, will you be providing venue or catering? If catering, is it limited to tea and coffee or a full buffet lunch? If you are running an online event, will you be providing preparatory or post event audio or visual materials such as videos or PowerPoint slides?

For example, if you are an online fitness trainer, depending on how you offer your courses, you may want to state that you will be engaging your participants in activities but will not be giving any dietary advice. You may also want to state that it is the participant’s responsibility to have a safe space and the appropriate equipment to hand to carry out any techniques to be demonstrated during the course.

2. payment terms

If you are charging a fee for people to attend your event, then your terms and conditions should include payment terms. Include any payment options you are offering, such as the ability to pay by instalments and what payments methods are available.

For example, you may want to provide the option to participants to pay in full by direct deposit to your nominated bank account before attending the event, rather than by credit card.

3. cancellation or refund policy 

Things do not always go as planned. In the middle of 2019 very few people would have predicted that face-to-face conferencing would be put on hold for most of 2020 due to COVID restrictions. Venues do occasionally burn down. Guest presenters do sometimes drop out due to personal reasons. You may end up having to postpone or even worse, cancel your event.

If you don’t want to give refunds, your terms and conditions need to be clear about what you will do if you have to postpone an event. As long as the postponement was outside your control and you remain ready, willing and able to give credit toward a future event, or ensuring a space is available in the next, or one of the next 3 scheduled events, your may not be legally obliged to give a refund.

But what if your participants are the ones that want to cancel or withdraw from your event?

You should set out clearly in what circumstances you participants’ cancellation would be a ‘valid’ cancellation, which would entitle them to a refund. Factors for you to consider include the reason for their cancellation (eg. change of mind, medical reasons) and how long before the event they notify you of their intention to cancel. You should also specify in what circumstances a refund will be made in full, when it will be made in part and whether an administration fee will be deducted.

Having a clear cancellation policy can deter participants from simply changing their mind about attending.

4. disclaimer

When you make a statement to the effect that you are not responsible for something, then you are making a disclaimer. Its purpose, of course, is also to protect you from potential disputes or legal issues.

If you do not want your participants to be under the impression that all information you provide will be accurate and therefore safe to rely on, then you need to say that. If expect your participants to take responsibility for their own health and wellbeing at your event, then that needs to be spelt out.

5. limitation of liability and indemnity

The last thing you want is to have someone bring a legal action against you for a loss they claim to have suffered by attending your event. A limitation of liability and indemnity clause is to protect you from being held responsible for losses or damages that were not caused as a result of your negligence.

6. intellectual property

The materials that you make available to your participants are likely to be your intellectual property and valuable assets of your business. It is important to correctly identify your intellectual property and draft effective clauses to protect it from being misused or exploited by your participants against your wishes.

7. personal information

You are collecting personal information from your participants when they register for your event or provide you with their contact details in any other way. To ensure that you are complying with your privacy obligations, you need to have a privacy policy and link that to your terms and conditions.

If you wish to take photos or videos of your participants during your event and later use that footage to market your business, you will also need your participants’ consent and release, because images can also be personal information.

Want more information?

If you plan to conduct online or offline events, consider what terms and conditions and release forms you need to protect you and your business. Contact Onyx Legal and we can work with you to prepare documents tailored to your business.

Intellectual Property Protection – What is it? & Why You Need it

Intellectual Property Protection – What is it? & Why You Need it

Intellectual Property Protection – What is it? & Why You Need it

What IS INTELLECTUAL PROPERTY? 

If you are a business owner, it is important for you to understand that your intangible assets, the ones you can’t pick up and hold, are just as valuable as your physical property.


If you haven’t appreciated the value of your intellectual property before now, you might not have taken any steps to protect it. Unfortunately, the point where you recognise value is often when it’s already too late and other people are already exploiting your name, or your brand, or your ideas, and reaping all the benefits.

WHAT RISKS DO YOU FACE IF YOU DON’T PROTECT YOUR INTELLECTUAL PROPERTY?

Almost all businesses you have heard of or are looking for are either offering products or services online or marketing their business online in order to reach as broad an audience as possible. But not all businesses realise that the higher the exposure, the higher the risk of your content being copied, misused or stolen.

You do not want to put yourself in a situation where you make it too easy for someone to infringe your intellectual property or even worse, have them infringe your intellectual property without you even realising it’s happening; consider the current feud between McDonald’s and Hungry Jack’s over the ‘Big Jack’ burger.

HUNGRY JACK’S ‘BIG JACK’ TOO MCDONALD’S BY SURPRISE

Whilst McDonald’s did take action back in the 1970’s to register the trade mark ‘Big Mac’ after years of comfortably holding sway with the name, they stopped checking their core competitors’ trade mark registrations and November 2019 Hungry Jack’s dared to see if they could get the ‘Big Jack’ through.

Surprisingly, they did! Examination was expedited, and although an adverse report was initially issued the response was filed, considered and accepted within days, resulting in registration in about half the time typical for current filings. Sales were initiated in late July 2020 and McDonald’s filed a claim in the Federal Court opposing the trade mark within a month.

Regular monitoring of filings might have enabled McDonald’s to object before registration, with the opportunity to stop the application getting through, stopping the Hungry Jack’s campaign before launch, and saving the cost of having to start court proceedings.

In November 2020 the case was still ongoing and mediation had been ordered. In the meantime, the Big Jack is on menus around the country.

Apart from trade mark infringement, one of the most common complaints we see is copying of contenT… 

… usually by someone who has been involved with your business as an employee or contractor, or as a customer.

Customers tend to take your information and think they can do it better, but without the grounding you have in the history of the product or service, often fail after a short period. With millennial employees, our experience has been sheer ignorance on the part of the employee of what is expected of them, even if it was clearly written into their employment contract. With contractors and more mature employees, our experience suggests that intellectual property theft tends to be based more in what they think they can get away with and has been conducted on an assessment that you won’t take action.

So, if you are still doing nothing to protect your intellectual property, then you are exposing your business to a significant amount of risk and the potential for the high costs of enforcement as compared to prevention.

Not only could your business lose its competitive advantage in the market, but poor-quality imitations of your content can also ruin your business’s reputation.

DON’T PANIC 

This article helps you consider what intellectual property you need to protect and offer some tips on how you can do that.

WHAT IS INTELLECTUAL PROPERTY?

It is important you understand the scope of your intellectual property.

As the name suggests, intellectual property is any property or creation of your mind or intellect. Whenever you develop a new product, service, process or idea, that is considered your intellectual property and belongs to you.

From small things such as the name on your door, to bigger things like your secret recipe, or an innovative invention, these may all be your intellectual property. These are the things that differentiate your business from other businesses in the market and therefore give your business its commercial value.

Common examples of Intellectual Property for online business:

  • brand name and byline
  • logo and colour choices
  • website meta information
  • website content – visual, video, written, downloadable
  • content – planning, drafts, upgrades
  • customer lists – email, SMS, FB messenger, push notification
  • customer service – processes, scripts, emails
  • internal operating processes and procedures
  • business delivery methodology
Intellectual property can be divided into the following categories. Which category you need to seek protection under for your creation will depend on your product or service.

1. Trade Marks

Many businesses register trade marks to protect their interests. The value of your trade mark increases with the success of your business, so consider when the best time will be for you to register your trade mark.

A trade mark is a form of brand recognition that distinguishes your product or services from your competitors. It helps consumers recognise the source or quality of your products or services. It could be a word, logo, phrase, letter, number, picture, or even a smell. For example, both Google and Facebook have registered their names as trade marks to protect their exclusive rights.

You may wish to do the same and register your business name as your trade mark to prevent anyone else from using it. You could also register the name of your core product or your core service as a trade mark. Think ‘Big Jack’.

Do not confuse trade mark registration with registering a business name with the Australian Securities and Investments Commission (ASIC). Registering a business name with ASIC is your legal obligation, which would allow you to use that name to identify your business. However, it does not stop others from using the same or similar name the way a trade mark registration does.

Similarly, registering a domain name does not give you the exclusive right to use it the way a registered trade mark does, and there are limits on the way trade marks can be used in domain names and on websites.

2. COPYRIGHT

Copyright is a bundle of rights in creative work such as text, artistic work, music, computer programs or films. For example, if you draw a sketch, write a book, a journal article or a movie script, those would be protected by copyright. (Copywriting is writing of copy, usually with the objective of making someone want to buy. Two different concepts.)

As the copyright owner, you have the exclusive right to reproduce your work, decide how it will be published and distributed, and keep it from being used or modified by others. If you allow other people to use your work, you still have the right of attribution. What this means is that anyone using your work has to give you credit by for example, putting your name or photo on or next to your work. Commercial exploitation and attribution rights are separately enforceable, not linked.

Be aware that copyright does not protect what are merely ideas or concepts. Your work has to be in some material form (ie. written down or recorded in some way) to be protected. So even if you have a brilliant idea in your head for a movie, but you have not written it down as a script or storyboard, then that idea will not be protected by copyright.

3. patents

If you have an invention or innovation that you wish to protect, then you should look at patent registration. You may need a patent when you have developed a new device, substance, method or process. For example, it may be a solar panel, a new textile, or even medicine. Patent registration gives you the exclusive right to exploit your product for commercial gain.

Onyx Legal doesn’t specialise in patent registration and we can instead refer you to a patent attorney.

4. DESIGNS

Designs are like a mixture of copyright and patents, but what you are protecting is the design or appearance of your product. That may include its shape, colour, configuration, pattern or ornamentation. Sometimes, the overall visual appearance of your product may be so new and distinctive that it forms a valuable asset of your business. Examples of designs include the ball chair, the mankini, or the Tiffany box.

Design registration gives you the exclusive right to make, import, sell, hire, use or keep a product based on that design.

5. TRade secrets and confidential information

All businesses have trade secrets and confidential information. Your employee, client and supplier data are examples of your confidential information. Trade secrets might be secret formulas, practices, processes or any other information that has commercial value because it is not generally known by others. Trade secrets are also a type of intellectual property.

As the holder of trade secrets and confidential information, you need to take steps to protect that information and maintain its secrecy. For example, you can prepare confidentiality or non-disclosure agreements to help ensure that whoever you disclose trade secrets to must keep it confidential. It is also advisable to ensure you have provisions in employment agreements and contractor agreements if you have others contributing to your business. 

COCA-COLA PROTECTING ITS INTELLECTUAL PROPERTY

To give you an illustration of how important it is for businesses to protect intellectual property, let’s take the familiar brand of Coca-Cola as an example.

The Coca-Cola company owns the trade mark ‘Coca-Cola’, as well as the trade mark on the graphic designs of their name, and even the shape of their bottles. You may think that it is being overly cautious, but these are all valuable assets of its business which distinguish it from other cola brands.

Imagine what would happen if Coca-Cola’s competitors are able to use its unique bottle shape, logo, brand name or design to mislead consumers into thinking that they are the real Coca-Cola.

Of course, Coca-Cola’s formula is a trade secret. The company has high security measures to protect its secret formula and ensure that it remains completely confidential.

The success of Coca-Cola depends largely on its ability to obtain protection of its intangible creations and assets. The key takeaway here for you is, if you want your business to stay competitive in the market, it is crucial for you to consider effective protection of your intellectual property.

HOW DO YOU PROTECT YOUR INTELLECTUAL PROPERTY?

You must be prepared to spend money.

  1. Protection by registration

Patents, designs, and trade marks can be protected through registration. In Australia, registrations are made with IP Australia.

Registration offers you the most secure legal protection, with codified exclusive rights. If someone infringes your rights, you are entitled to take legal action against them.

Be aware that in design registration there is an extra step which requires your registration to be certified before you can enforce your rights.

If a dispute ever arises, it is less costly to defend a registered right than an unregistered one because your registration serves as proof of your ownership.

  1. Automatic protection

There is no system of registration for copyright in Australia.

If you are the creator of copyright work, you automatically get copyright protection in the work upon its creation (ie. as soon as it is written down or recorded). Copyright vests in the employer for works created in the course of employment. 

If you sell into the United States market, you must register digital products with the Electronic Copyright Office before you can enforce your rights in the United States.

Because there is no registration system to protect your copyright in Australia, consider placing a © symbol or label on your work to indicate that copyright belongs to you and you intend to protect it. This can act as a deterrent to potential infringers.

There is no right order. Consider including a copyright statement that looks something like this:

“© the year of first publication and your name ”

For example, “© 2020 Onyx Legal”.

Similarly, there is no system of registration for trade secrets either. You will need confidentiality agreements for people to sign so that they do not disclose your trade secrets without your permission, as well as provisions in your employment and contractor agreements.

  1. Confidentiality/ Non Disclosure Agreements (NDA)

Whenever you share trade secrets or any confidential information with your employees, contractors or business partners, you need to ensure that they don’t share it with anyone else.

The most effective way to prove their agreement to protect your intellection property is to prepare an NDA which holds the other party liable for intentionally or unintentionally disclosing any confidential information without your consent.

However, keep in mind that no contract or agreement is any protection against human misbehaviour, so whilst it will remind most people to do the right thing, it does not offer 100% protection of your intellectual property.

4. PRACTICAL MEASUREs

The more effort you put a potential copycat to, the less attractive your product or service is to being copied. Within your business, it might be cheaper to educate staff and contractors rather than taking them to court. Some practical measures you could apply are:

  • watermarks
  • PDF rather than text downloads
  • a pay wall before access
  • terms and conditions on your website and for access through pay walls
  • contracts and agreements
  • employee education and training
  • internal policies
  • an intellectual property register
  • creating a method or framework eg. Six Sigma
  • keep an eye on competitors
  • create your own enforcement process map
  • regularly search for your core product or service
  • give cease and desist or take down notices to infringers

WHAT IF YOU WANT TO LET SOMEONE USE YOUR INTELLECTUAL PROPERTY?

You may wish to grant licenses for individuals or businesses to access or use your intellectual property for either personal use or commercial use. For example, Disney grants licenses to toy makers to use Disney characters for commercial purposes. Or if you are an online educator, you may grant to your customers a license to access your online classes for personal use.

Creative Commons licencing is one option to define your licence terms for public online content, but other content is usually protected by drafting a clear and appropriate license agreements.

From an asset protection perspective, you might extablish a separate holding entity to hold your business intellectual property and licence use of it to your trading entity. 

When you license your materials to others, it is important for you to define the parameters of  use of your intellectual property, including timing and payment. 

IT IS YOUR RESPONSIBILITY TO ENFORCE YOUR INTELLECTUAL PROPERTY RIGHTS

Don’t think that by having your intellectual property registered or protected by a NDA, you can sit back and relax. That is only the first part of it. As the owner of intellectual property, you are responsible to identify infringements and enforce your rights.

What constitutes an infringement varies depending on the circumstances.

Whenever you are not sure about grounds to allege an infringement, then you should always be cautious and get legal advice before sending out any correspondence to the offending party. It the action in question does not constitute an infringement, your accusation may be considered as a groundless or unjustified threat. If that is the case, then the other party might be in a position to bring a claim against you.

Want more information?

A good understanding of the scope and value of your intellectual property can help you decide what steps to take to protect it, and improve the long term value of your business.

Make an appointment with us at Onyx Legal to discuss appropriate strategies for the protection of your intellectual property.