It's nearly that time of the year again when the Fair Work Commission will hand down the increase the Minimum Wage (FMW). This will mean that all Award rates of pay will increase by the increase that is pronounced. As is always the case, the announcement is expected in early to mid-June with an operative date of the first pay period on or after 1 July 2016.
How much will the increase be?
As is always the case, the peak Employer bodies and the Unions are "poles-apart" on their submissions for the increase. Employers are arguing for a modest 1.2% increase, while the ACTU submits that the increase should be a flat $30.00 per week I have long given up on trying to accurately predict the increase, however the trend since I can recall has been that the increase is about .5% -1% higher than the current CPI figure. In the last 5 years or so, the increase has been between 2.5% and just under 3%. CPI is currently running at about 1.3 - 1.5%. The recent interest rate cut by the RBA may also have an impact on the outcome.
So I'm going to hazard a guess and suggest that the increase will be between 2.3% and 2.5% - the lowest for a long time. But don’t be surprised if the increase is a flat dollar amount because we have had 5 years of percentage increases which results in an expansion in the range of wages, and the FWC may want to curb that expansion this year.
Do I have to pay the increase?
The question I'm often asked at this time is "Do I have to pass on the increase to my staff?" The short answer is yes; if you pay your staff under the Award.
However, if you pay your staff wages or salaries over the Award, then it may well be that you can absorb any increase into that over-Award payment. But much will depend upon the employment contract or letter of appointment that you have with the staff member and how the over-Award payment is expressed in those documents.
If you would like further information in relation to this issue, and whether the FMW increase can be absorbed into above Award payments, please do not hesitate to contact us.
"Since the writing of the article, the Fair Work Commission have announced a 2.4% increase in Award wages operative from 1 July 2016. If you would like information as to the application of this increase, and whether or not it can be absorbed into over-Award payments, please contact Effective Workplace Solutions"
Having a licence to operate a vehicle is a well known requirement. Some might not be aware of this requirement in respect of pleasure craft in particular jet skis.
The enclosed Carter Newell legal update contains discussion of an interesting case authority in respect of personal injuries litigation arising from jet ski usage and in particular unlicensed drivers.
A brief summary of the judgment: The precedent holds that failure to possess a jet ski licence, despite being a breach of policy terms and conditions, but which does not cause the accident occurring , does not give the Insurer right to deny coverage. This is true of Australian law because of protections in section 54 of the Insurance Contracts Act (ICA).
It is conceivable that in the family dynamic, the dominant driver would be licenced with other family members not being licenced. Without ICA s 54, an Insurer would be able to decline the claim. In other circumstances, where the act of not being licenced, say from lack of instructed practical knowledge does contribute to the occurrence of the claim, the Insurer will almost certainly be entitled to deny indemnity to the policy holder regardless of s 54 of ICA.
We take this opportunity to remind clients that even a family member or other acquaintance that only operates a vehicle for a minimal amount of time, exposes themselves to the prospect of being uninsured because of a technicality.
Given this case involve the unfortunate amputation below the knee of the claimant’s leg, it shows that jet ski injuries can be severe such that the potential for significant uninsured losses is far from trivial.
Below is a link to Carter Newell’s case discussion and judgment itself on AUSTLII should you wish to read more.
Below is an article published in couriermail.com.au. It again highlights the growing need to business of all sizes to hold this insurance. This is just as important as having public liability cover. We will be talking to each of you about this cover when we next review your covers but if you would like to look at this sooner please contact our office.
ONE in five Australian small and medium-sized businesses have been hit with a cyber-attack, polling suggests.
And many have paid the price in the form of cash or intellectual property, according to the survey results.
The latest Norton SMB Cybersecurity Survey indicates that 19 per cent — or about 400,000 — of the 2.1 million Australian small and medium-sized businesses have been attacked at some point by cyber threats.
Phishing scams, where criminals send emails impersonating someone and ask for money or intellectual property, are the main form of attack. The Norton survey also found 11 per cent of small businesses had been hit with ransomware attacks.
In such attacks, criminals take control of computer systems remotely until a ransom is paid.
Among those targeted, 34 per cent paid the ransom at an average cost of $4677.
Cyber security expert Mark Gorrie from Symantec said he had even heard of businesses paying a $50,000 ransom to regain control of their data.
“Two respondents said that had paid more than $50,000 to recover their data…once they are in that situation and realise they can’t survive without that information, they are paying up.
Professional car thieves have colour preferences when choosing their targets, according to a new study by the National Motor Vehicle Theft Reduction Council.
A black 1997-2000 Holden Commodore VT is three times more likely to be stolen for profit than a red one, but black and red Commodores have similar short-term thefts rates.
By type, green small and medium passenger vehicles are the most likely to be stolen.
The 2015/16 theft rate for green cars was 3.58 per 1000 vehicles, followed by black at 2.96.
The next most popular targets by type are large black passenger vehicles, black sports vehicles, green SUVs and black light commercial vehicles.
Black cars became increasingly popular to own in 2015/16, up 29% since 2011/2012, and even more popular to steal, up 56% since 2011/12.
Red 1995-2000 Nissan Pulsars have the highest theft rate by model (29.6 thefts per 1000 registrations) – a 46% higher theft rate than blue ones.
Black 2006-13 Holden Commodores have a 57% higher theft rate than silver ones.
The insurance bill for the hailstorm that pummelled parts of Sydney and the Illawarra on February 18 has passed $350 million, according to latest figures from IAG and Suncorp.
IAG today announced it has received more than 20,000 claims, expected to cost $160 million, and its net exposure could reach $200 million after allowing for reinsurance.
Suncorp has received about 11,000 claims across its insurance brands, at an estimated cost of $150-$170 million.
The Insurance Council of Australia says 48,000 claims have been received for the hailstorm, with 38% for damage to motor vehicles, while roofs and incidental contents claims account for the rest.
IAG is close to its 2016/17 natural perils allowance of $680 million, reaching about $650 million at the end of February. However, a 2016/17-specific natural perils cover of $96 million effectively extends the allowance to $776 million.
Suncorp’s total natural hazard claims stand at $610-$630 million for the eight months to February 28.
Insurance fraud comes in a few different shapes and sizes. Some types of fraud are done on purpose, some types involve small lies that may seem like they won’t matter, and some are committed without the person committing them even realising.
The cost of insurance fraud each year is big — it’s in the billions — and while it may seem easy to ignore these costs because they only affect insurance companies, the reality is that insurance fraud ends up costing you and others, be it in the form of higher premiums, higher excesses or policies with more things an insurer won’t cover — all of which are aimed at cutting down the increasing costs of fraud.
But what exactly is insurance fraud? And how can it be avoided?
What are the types of insurance fraud?
Insurance fraud generally falls into a few categories: non-disclosure, exaggeration and deliberate.
Non-disclosurecan be both deliberate and inadvertent. Fraudulent non-disclosure basically means that you haven’t revealed information to an insurer that might affect their decision to insure you or to pay out a claim. For example, when applying for car insurance, you may neglect to mention a conviction for drink-driving or you may tell your insurer that your car is always parked in a secure garage overnight when, in fact, it’s typically parked on the street. It’s important to note that even unintentional non-disclosure is still fraudulent.
Deliberatefraud is premeditated and calculated in an effort to defraud an insurance company. That is, someone planned to commit fraud to make money. Common types of deliberate fraud include setting fire to property or faking a theft in order to receive an insurance payout.
Exaggerationis pretty straightforward and is mainly limited to when a person makes a claim — it involves exaggerating the amount of damage or the cost of the loss in order to increase the payout of a claim.
As you can see from the various types, insurance fraud isn’t limited to criminals. Even well-behaved people can often be tempted to leave out important information or inflate the value of a claim for their own personal gain, and it can also be the case that a person doesn’t realise they are committing a crime by exaggerating the facts or failing to disclose important information.
How can you avoid committing insurance fraud?
Obviously, if you are deliberately committing insurance fraud, then it’s quite easy to figure out how to avoid doing it. However, in order to avoid accidentally committing insurance fraud, there are a few things you can do:
What is the insurance industry doing about fraud?
Insurance companies are putting a lot of resources and money into combatting insurance fraud, and new technology and software is being used to identify it, along with specialist claims training and engaging with specialist investigators.
Additionally, the Insurance Fraud Bureau of Australia (IFBA) works with insurance companies to notify them of information relating to possible insurance fraud so that those companies can then investigate and act on these suspicions of fraud. The IFBA also works to help develop strategies that can be used across the industry to help stamp out insurance fraud and, as a result, protect honest consumers from having to bear some of the costs of insurance fraud.
The Insurance Council of New Zealand (ICNZ) have an online form along with a toll free number (0505 372 835) where the public are encouraged to call and report information about potential Insurance fraud cases.
ICNZ use the information submitted to make investigations with Insurers who may take further action if necessary.
Directors, CEOs, General Managers, and even HR Managers beware; the Fair Work Ombudsman (FWO) appears to be increasing its activities and is taking legal action against individuals under the Fair Work Act 2009 (Cth) (“the Act”), and there can be serious consequences.
Last year saw an increase in the Fair Work Ombudsman’s (FWO) efforts to pursue directors and managers, including HR and payroll managers, for their involvement in contraventions of the Act.
Section 550 of the Act makes it possible for legal action to be taken against individuals who are personally involved in breaching the provisions of the Act. This is commonly referred to as “accessorial liability”. The FWO is utilising that Section of the Act to prosecute personally those who make decisions which contravene the Act, particularly in respect to underpayment of wages.
Accessorial liability applies when an individual is “involved in” a contravention of the Act. Section 550 states that an individual will be considered as being “involved in” a contravention if the person:
Where its proven that an employer has committed a contravention and an individual has knowingly and intentionally been “involved in” that contravention, both parties can be held liable for the same offence and may be subject to separate penalties.
HR Manager Held Responsible
In the past 12 months, accessorial liability was dealt with in several notable decisions, including in FWO v Oz Staff Career Services Pty Ltd & Ors  FCCA 105 where it was found that the Company had been falsifying its employment records and unlawfully deducting around $130,000 in wages from dozens of cleaners that it had employed.
It was found that the employer had been unlawfully deducting meal allowances and other fees from employees’ wages. Despite the employer admitting to a contravention of the Act, the HR Manager denied any involvement. However, the Federal Circuit Court found that the HR manager was aware of the deductions and knew that they were unlawful. Therefore, the Court found that the HR manager was “involved in” the contravention and was ordered to pay a penalty of $9,920.
Continual Breaches Treated Seriously
The Courts have clearly indicated that where an individual has previously had contact with the FWO, they will be taken to have knowledge of workplace laws and accordingly, contraventions of the Act that occur after contact with the FWO will be treated more seriously.
This was the case in FWO v AIMG BQ Pty Ltd & Anor  FCCA where a director of one employer was also the director of another associated entity that had had previous dealings with the FWO. In that case the director had given the FWO an undertaking and commitment to properly pay all employees engaged by companies of which he was a director. It was then discovered by the FWO that the associated entity was not paying its employees correctly and had failed to keep proper time and wages records. Consequently, the FWO took legal action against both the company and the director. The Court found that the director’s previous dealings with the FWO and the fact that he had breached undertakings provided to the FWO made his contraventions more serious and the Court ordered the director to personally pay a penalty of $8,160.
Individuals Are Now Able to be Held Jointly and Severally Liable
Most cases involving underpayment of wages have required the Company involved to back pay wages to employees. However, a case from last year demonstrates that an individual can now be held jointly and severally liable for repaying unpaid wages to staff.
In FWO v Step Ahead Security Services Pty Ltd & Anor  FCCA 1482, the Gold Coast security company involved in the contraventions had only operated for a short period of time. The Federal Court decided that it was unlikely that the Company would be able to back pay outstanding wages to former employees, as it would be more than likely wound-up in the near future. Accordingly, the Court ordered that the sole director and the employer Company would be held jointly and severally liable for the amounts underpaid. Therefore, if the Company did not back pay the wages, the Director would be personally liable for paying a total of $22,779.72. In addition to the underpaid wages, the sole director was ordered to pay a record penalty amount of over $51,000 and the employing company was ordered to pay penalties amounting to $257,000.
After the case, the Fair Work Ombudsman stated:
“Unfortunately, there are some rogue business operators who think they can short-change their staff and get away with it by liquidating their companies and hiding behind a corporate veil … so they should think again, as we will seek to hold them to account at every available opportunity” (Courier Mail 20 June, 2016)
On-going Responsibility and Liability
In FWO v Sona Peaks Pty Ltd & Anor  FCCA 6015, it is now clear that the FWO will also pursue individuals for their contraventions of the Act even after their involvement with an employer has ended. This is demonstrated by the decision where the Federal Court made a garnishee order against a former director of an employer who persistently failed to pay the penalty ordered against him.
The individual in question was the sole director and secretary of a restaurant that had underpaid its staff. As result of the underpayment contraventions, the director was ordered to pay a penalty of $23,715, which he didn’t pay. To recover the amount, the Court made a garnishee order which required the director’s new employer to pay regularly until the penalty was paid in full.
What Can Businesses do?
The simple and straight-forward answer is to ensure that due diligence is applied by Managers and Directors and make sure that all staff are being paid in accordance with the law and that proper records keeping practices are in place. These cases demonstrate that the FWO is working harder than ever to ensure that employers comply with Award, Agreement and legislative requirements and it also demonstrates that the Courts are prepared to hold those individuals personally liable for a range of penalties and underpayment amounts.
It is fair to say that much of this increased activity and action by the FWO can be attributed to the 7-Eleven matter, and it now appears that other fast-food chains have been involved in underpayment of wages as well.
By Greg Arnold
Director and Principal Consultant
Effective Workplace Solutions
The 32-year-old is locked in a nightmare dispute with insurer AAMI, which rejected his claim on the basis of what he says is a flawed analysis of photographs he provided as evidence of ownership of the stolen items, costing him close to $187,000.
And experts say a common glitch in time and date stamps on images stored by online cloud services could put other claims at risk, with metadata left exposed to accidental or intentional corruption.
Mr Dowsett has spent the past nine months fruitlessly trying to have a $51,000 claim on his home and contents insurance settled, finally lodging a complaint to the Financial Services Ombudsman.
It all started on April 28, when he and his partner returned to their rented home in the Perth suburb of Rivervale to find it stripped of valuables, with his remaining possessions strewn all over the place and a sliding door damaged after being jimmied open.
“Each room downstairs had been ransacked, the television, sound system and DVDs were missing from the loungeroom and the door of my safe was wide open and emptied of its contents,” he said.
Also among the missing items were a drone, two designer and smartphone watches and cash from a recent motor vehicle sale, the latter not covered by the insurance policy.
When AAMI raised questions about the time stamps on photographs taken from his Google Photos cloud platform, Mr Dowsett explained that they appeared to be showing the dates when he uploaded them, between May 20 and 23.
He said other photos showing these dates had in fact been taken during his March hospital stay, and provided evidence of this to AAMI.
Telstra confirmed the Galaxy Note 5 was not in Mr Dowsett’s possession. Source: Supplied
Crucially, the Samsung Galaxy Note 5 used to take the photographs — a fact confirmed by AAMI’s forensic analysis — was not in his possession at the time AAMI alleges they were taken.
News.com.au has seen a copy of a letter from Telstra confirming that Mr Dowsett had traded in the Samsung Note 5 on March 3, replacing it with a Samsung Galaxy S7 Edge.
After retrieving the original images through a Samsung switch backup restore, Mr Dowsett said, he examined them using a Jeffrey’s Image Exif Viewer, a free online tool for analysing metadata embedded within images such as time, date, camera or device used and location.
The results, he said, showed that the photographs of his Samsung and Gucci watches had been taken on February 24, while that of his Cannon EOS digital camera had been taken on February 28.
But AAMI refused to acknowledge this when he provided them with this evidence, he said.
On October 20, the insurer officially rejected his claim, alleging that it had been made fraudulently, while cancelling his policy.
THE PERILS OF DIGITAL EVIDENCE
According to Matthew Warren, deputy director of Deakin University’s Centre for Cyber Research, digital time stamps are notoriously unreliable.
“The problem is, any data can easily be manipulated,” Mr Warren told news.com.au. “Time stamping is a key aspect of digital forensics, but it can be corrupted and altered. It’s such a grey area, and it’s going to become more of an issue as we move more into digital evidence.”
Metadata on images could be altered both on purpose or by accident, such as when resizing files or forwarding them by email or Facebook.
“It’s actually a problem of using cloud services because you don’t know who has access to your data on the cloud,” he said. “It’s something that insurance companies are very concerned about.”
Unfortunately for people like Mr Dowsett, he said, “there’s not a lot you can do if the insurance company doesn’t trust the evidence”.
“When someone takes a picture and uses it as evidence, a lot of that’s based on trust,” he said.
“If an insurance company thinks that manipulation has occurred, they simply won’t pay the claim.”
But if the master copy was provided with raw, unedited data, that would give a claimant the best possible chance.
‘NO SATISFACTORY EXPLANATION’
AAMI declined to comment on Mr Dowsett’s dispute, citing privacy restrictions.
In its letter rejecting his claim, the insurer claimed that he had failed to attend appointments, which Mr Dowsett disputes.
“Our investigations indicate that you have deliberately provided false and misleading statements regarding the circumstances of the claim,” the letter said.
“You have not been able to supply a satisfactory explanation for why the images supplied were taken after the event, in the absence of evidence to the contrary we conclude that these items were not stolen as claimed.”
Mr Dowsett has taken the dispute to the Ombudsman, seeking a reversal of the insurer’s decision, plus compensation.
If you live in a bushfire prone area you need to develop a Bushfire Survival Plan for you and your pets. Whether you choose to relocate your pets during high risk days or keep them at home with you, it’s important to plan for their safety as well as your family’s. But please remember to always put your own safety before the safety of your pets.
Here are some basic steps you can follow to help keep your pets safe and sound:
Find more information on keeping your pets safe during bushfire season at: