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Four current challenges facing contractors Ian Heathwood – BA LLB (Hons) Grad Dip LP

Four current challenges facing contractors Ian Heathwood – BA LLB (Hons) Grad Dip LP. Disclaimer. This information is only of a general nature, should not be applied to individual situations without seeking further specialised advice, is focused on particular issues and is not

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Four current challenges facing contractors Ian Heathwood – BA LLB (Hons) Grad Dip LP

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  1. Four current challenges facing contractorsIan Heathwood – BA LLB (Hons) Grad Dip LP

  2. Disclaimer This information is only of a general nature, should not be applied to individual situations without seeking further specialised advice, is focused on particular issues and is not intended to be an exhaustive representation of the different legal issues. We are not providing any accounting, taxation, financial advice – you should seek advice from the appropriate professional.

  3. Focus on • Employment hot-spots • Contracting • Administration of contracts • Payment Claims

  4. Don’t engage in sham contracting • Employee - v – sham contracting • e.g. boat builder • check list

  5. Why employment contracts and policies? • Clarify employment obligations both ways • More options for termination/performance management • Safeguards your business • vehicle, phone, laptop and external access • control number / contacts / privacy

  6. Employee management • Qualifying period – use it • Be careful with apprentices • Sexual harassment & discrimination • need to avoid vicarious liability • Performance management – do it! • 2 years of “performance management” • warning but what consequences?

  7. Unfair Dismissal • Dismissal is unfair “harsh, unjust or unreasonable” • Look at: • was there a valid reason to dismiss? • were they told the reason? • were they given opportunity to respond? • did you refuse a support person? • did you warn performance unsatisfactory?

  8. Unfair Dismissal (con’t) • did you warn of possible further action? • for FWC, if small business (15 or fewer) did you follow Small Business Fair Dismissal Code? • For FWC, income must be under $129,300 plus super • FWC, must be “eligible employee” • small business – 12 months employed • other – 6 months employed

  9. Unfair Dismissal (con’t) • Capped at 26 weeks • Exception for serious misconduct • Exception of genuine redundancy

  10. The new threat • A General Protections claim is • e.g. adverse action regarding “workplace right” • includes making a complaint or inquiry about their employment • law unsettled but e.g. Harrison -v- In Control (2013) • Uncapped damages

  11. The new threat (con’t) • Fines • $10,200 individuals • $51,000 business • Watch out for complaints!

  12. Tips on avoiding a claim • Use warnings • Act decisively and follow through • Use the Small Business Dismissal Code • Understand the concept of adverse action • Watch out for complaints • Anticipate what your employees are planning

  13. Contracting • Who are you contracting with • check adjudications • ask Mr Google • use your ears • Same questions for the principals

  14. Contracting (con’t) • Get it right upfront • Try to set the terms • Understand the contract and risks • Negotiate before you contract • Clarify everything • Price for risk

  15. Contracting (con’t) • Negotiating • be objective and un-emotive • give commercial reasons • know your strengths and weaknesses • record and rely on promises

  16. Administration of contracts • Site meetings and instructions • take good notes • clarify • everything in writing • EOT’s, variations, delay claims • follow contract – in writing • or be barred

  17. Payment Claims • Claimant delivers “Payment Claim” • Respondent can deliver “Payment Schedule” • WA and NT – Notice of Dispute →“Payment Dispute” • Accept and receive amount in Payment Schedule – OK

  18. Payment Claims (con’t) • Do not receive Payment Schedule or admitted amount is not paid:- • stop work • adjudication – certificate converts to judgment • court – special rules • no defence • no counter claims

  19. Payment Claims (con’t) • Receive Payment Schedule but dispute amount • adjudication • court – no special rules • can’t stop work

  20. Payment Claims (con’t) • Use all the time – pros and cons • Convert your invoice to a Payment Claim? • not practical in VIC

  21. Take aways • Understand your employment risks • Manage them • Beware the complaint • Get contracts right up front • Administer properly • Document, document, document • Use Payment Claim system

  22. Questions?

  23. This presentation is for the general information of McKays’ clients and associates. The information contained in it should not be relied upon without first consulting us and obtaining specific advice in relation to any issue.

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