Publications

• Bullet proofing against adverse action claims
  Published 01 May 2013
  As first published on Workplace Info (www.workplaceinfo.com.au). The adverse action provisions in the Fair Work Act 2009 (Cth) (‘the Act’) have the potential to provide very broad protections to employees and others. Taking adverse action is not, on its own, unlawful; however, it is unlawful to take adverse action because of a prescribed ground such as union membership, sex, race and disability. A key question in a claim for adverse action under the Act is the causal link between the adverse action alleged and the prescribed ground. How the link is proven in practice is usually the central issue. This article briefly outlines the adverse action framework with a focus on the link between union membership and adverse action and how the Federal Court in a recent case applied the High Court decision in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 (7 September 2012).
• Not-For-Profit Newsletter - April 2013
  Published 26 Apr 2013
  Welcome to April's Not-For-Profit Newsletter. This month features Helping you navigate the changing not-for-profit regulatory landscape; Charities Bill 2013: a new definition for charities; ACNC update: Annual information statements; Governance standards under the ACNC Act; The Gilstrap Charity; Royal Commission into child sexual abuse begins and Other News
• Iranian Flim Maker Granted Visa Protection
  Published 03 Apr 2013
  Carroll & O'Dea recently made a successful Application for judicial review to the Federal Magistrates Court on behalf of a client who arrived in Australia by boat seeking asylum, and who had subsequently made two applications for a protection visa which were refused.
• Not-For-Profit Newsletter - March 2013
  Published 18 Mar 2013
  This month's newsletter is packed with information on School Building Fund New Taxation Ruling; Update on the Federal Government’s proposed Human Rights and Anti-Discrimination Bill 2012; and Good news.
• Newcastle to get new $94 million dollar court house - across the road from Carroll & O'Dea
  Published 27 Feb 2013
  Due to open in 2014 Newcastle's new 7 storey multi-million dollar court house will set a new benchmark for justice facilities in one of Australia's busiest court precincts.
• ‘Go away money’— will it now go away?
  Published 21 Feb 2013
  First published in WorkplaceInfo. One of the most common complaints to the Fair Work Act Review was that the Act has led to employers increasingly having to pay compensation (‘go away money’) to settle claims, irrespective of their merits. All experienced advisors, however, are well aware that ‘go away money’ has always been a feature of the system. Have amendments to the Act meant that this will finally go away? A Sydney law firm comments, based on its experience.
• Not-For-Profit Newsletter - February 2013 (2nd Edition)
  Published 20 Feb 2013
  An update on New Workplace Gender Equality legislation.
• Calculating Damages for Termination of Contract - Lunchtime Seminar - Tuesday 19 February 2013
  Published 18 Feb 2013
  Matthew Gywnne, Adrian O'Dea & James Mitchell come together to discuss how a recent decision in the Supreme Court of NSW Court of Appeal has crystallised the law in NSW on how to treat overhead expenses when calculating expectation damages where a fixed term contract for services has been wrongfully terminated.
• Not-For-Profit Newsletter - February 2013
  Published 13 Feb 2013
  Welcome to our first N-F-P Newsletter of 2013. February's edition includes topics such as The Royal Commission begins; ACNC Update; Time Deadlines; Financial Reporting Regimes; Governance and Reporting Duplication Impact Assessment; Unrelated Business Income Tax; Definition of Charity and The Good News.
• How do periods of chaos interrupt your work-life plans?
  Published 08 Feb 2013
  Womens Agenda article
• Managing work-life balance during periods of chaos: The five point plan
  Published 08 Feb 2013
  While we can thank feminist activists for obtaining the right for women to enter the workforce, modern women have a new struggle: managing the demands that work places on our lives.
• Tuesday Lunchtime Speaker Series - The Hon. Brian Tamberlin QC.
  Published 01 Feb 2013
  On Tuesday 12 February 2013, Brian Tamberlin will talk about the many different places a law degree can take you, weaving in stories of his contemporaries from the class of 1962.
• BBB Constructions Pty Ltd V Aldi Foods Pty Ltd [2012] NSWCA 224
  Published 19 Nov 2012
  On 26 July, 2012 the Court of Appeal dismissed the appeal of BBB Constructions Pty Limited (“BBB”) against our client Aldi Foods Pty Ltd (“Aldi”) in relation to a decision of Justice McDougall made 2 December, 2010.
• Note on the ‘implied undertaking’
  Published 19 Nov 2012
  It is important that parties in litigation and/or their legal representatives are aware of the ‘implied undertaking’ not to use documents received in proceedings for an ulterior purpose. In essence, this involves a requirement to be open and honest.
• Interest on Costs
  Published 19 Nov 2012
• Not-For-Profit Newsletter November 2012
  Published 12 Nov 2012
  November's N-F-P Newsletter contains topics such as Victorian Inquiry Commences; ACNC Established; Poker Machine Reform; Homelessness Bill 2012 and National Affordable Housing Agreement ("NAHA"); The Good News & a special invite to our Charity Law Seminar on November 28.
• Charity Law Event Nov 28- watch clip to find out more
  Published 06 Nov 2012
  Carroll & O'Dea will be running a half day seminar on Charity Law - Wednesday November 28 from 9AM - 1.30PM. Held at the Australian Catholic University, North Sydney campus, a short walk from North Sydney train station.
• Media Release: Australian Charities and Not-For-Profits Commission (ACNC) Passes the Senate
  Published 01 Nov 2012
  Please see the joint media release issued 31 October 2012 by Mark Butler and David Bradbury. It seems ACNC will be operational from early December 2012. We remind you that the ACNC and its implications for Religious Congregations will be discussed at our half day seminar at ACU on 28 November, 2012.
• Police Have Special Rights - Can We Help You?
  Published 19 Oct 2012
• Superannuation Lump Sum - policy long forgotten?
  Published 19 Oct 2012
  Carroll & O'Dea have been looking after people's rights since 1899, we have helped many clients who can't work, to access their benefits.
• Charity Law Seminar on Wednesday 28 November 2012 at the Australian Catholic University
  Published 16 Oct 2012
• Not-For-Profit Newsletter October 2012
  Published 10 Oct 2012
  This month's Not-For-Profit Newsletter features; Aged Care: The Dilemma for Providers; Auditors and Charities; Recent Enactment Roman Catholic Church Communities’ Lands Regulation, 2012; Good News & Charity Law Seminar details.
• Property Newsletter - October 2012
  Published 08 Oct 2012
  October's Property Newsletter features topics such as False and Misleading Statements by Agents; The Foundry; and Portico Plaza.
• Not-For-Profit Newsletter September 2012
  Published 05 Sep 2012
  This month's edition of the N-F-P Newsletter featuring; HOUSE OF REPRESENTATIVES FIRST & SECOND READING SPEECH - The Commission Bill; Consequential & Transitional Bill & the Tax Laws Amendment Bill.
• Business Matters Newsletter - September 2012
  Published 04 Sep 2012
  The second edition of 'Business Matters' features - Getting Caught in the Social Net(work); Private Ancillary Fund Shake-Up; Crowd Funding Gets Attention & SMS with a Lock in Contract.
• Fair Work Act Review
  Published 15 Aug 2012
  The recently released Report of the Independent Panel conducting the Review of the Fair Work Act -- “Towards more productive and equitable workplaces; an evaluation of the Fair Work legislation” has attracted very considerable comment, much of it is politically motivated.
• Not-For-Profit Newsletter August 2012
  Published 15 Aug 2012
  ACNC Update; Basic religious charity; N-F-P Seminar - Save the Date; The Good News.
• OHS Alert
  Published 18 Jul 2012
  Tim Concannon, a NSW Law Society injury compensation committee member and a Carroll and O'Dea partner, told the inquiry this week that the vast majority of injured workers "express an abhorrence" at the idea of obtaining a lump sum instead of returning to work.
• Not for Profit Newsletter July 2012
  Published 17 Jul 2012
  Australian Charities and Not-For-Profits Commission Bill 2012
• Regional Visits April-December 2012
  Published 29 Jun 2012
• Business Matters Newsletter - June 2012
  Published 27 Jun 2012
  Welcome to the first edition of ‘Business Matters’, a newsletter for Carroll and O’Dea business clients and friends.
• Calculating Damages for Termination of Contract
  Published 27 Jun 2012
  A recent decision in the Supreme Court of NSW Court of Appeal has crystallised the law in NSW on how to treat overhead expenses when calculating expectation damages where a fixed term contract for services has been wrongfully terminated.
• Security For Costs
  Published 13 Jun 2012
  During the course of legal proceedings, costs are usually incurred by all parties in prosecuting and defending the proceedings. It is sometimes the case that despite the order being made for the payment of costs by the unsuccessful party, the unsuccessful party does not have the financial capacity to comply with the Court order. If it is deemed appropriate, an application can be made to the court for security for costs.
• Not-For-Profit Newsletter June 2012
  Published 08 Jun 2012
  Update regarding: Privacy Act Reform; Australian Charities and Not-for-profits Commission Update; Widening the Anti Discrimination Net; Lifting the corporate veil on Church Property Trusts; and further Good News.
• Tuesday Lunchtime Speaker Series - The Hon. Greg Smith SC MP
  Published 03 Jun 2012
  Greg Smith will be speaking on, his committment to policies that promote rehabilitation and reduction in reoffending, as part of our Tuesday Lunchtime Speaker Series.
• F2F Meetings
  Published 25 May 2012
  ADHC, NSW Department of Family and Community Services & Spinal Talk - a Statewide Telephone Peer Support for Individuals with SCI - invite you and your family to a face-to-face meeting in Orange, Wollongong, Coffs Harbour or Ballina
• Drugs and alcohol at work
  Published 01 Nov 2011
  First Published in Human Capital. An employee who is affected by drugs or alcohol in the workplace presents a risk to themselves, other employees, customers and your business.
• Tuesday Lunchtime Speaker Series
  Published 10 Oct 2011
  A break with tradition - the lunchtime speaker this month will be on MONDAY 31st October. Lunchtime Speaker Series “Ethical leadership; unpopular causes” - Julian Burnside QC
• Dismissed for misconduct:facing the consequences of facebook postings
  Published 07 Oct 2011
  First Published in Human Capital. Two recent decisions highlight the differing outcomes for employees who criticise their employers on social media sites outside working hours.
• Anti-social media: extending the employer’s tentacles…
  Published 28 Sep 2011
  There can be no doubt that social media in the workplace has become a live legal issue: judgments reflect it, company policies address it and we have all heard nightmare stories of comments on social networking sites costing people their job. Peter Punch, Partner at Carroll & O’Dea Lawyers, examines a recent social media decision and the blurring of our personal and working lives.
• The Taree Terrier
  Published 19 Sep 2011
  Carroll & O'Dea has enjoyed a long association with cycling. The 'Taree Terrier', Phillip Grenfell, recently grabbed two stage wins in Victoria.
• The NEW Personal Property Securities Act – What it means for Landlords
  Published 12 Sep 2011
  In brief - Landlords are not directly affected. This Act primarily affects finance providers and people who lease goods. A landlord will be affected if they provide finance or lease goods (eg vehicles or equipment) or possibly if they finance a lessee’s fitout of premises and wish to retains ownership of the fitout. The main objective of the Act is to remove the illusion of wealth.
• BULLIES IN THEIR MIDST – EMPLOYERS’ OBLIGATIONS AND RISKS
  Published 01 Sep 2011
  First published in Human Capital Magazine
• REGIONAL VISITS SEPTEMBER - NOVEMBER 2011
  Published 29 Aug 2011
  Details of the regional visits for our solicitors.
• Long suffering over Long Service Leave
  Published 22 Aug 2011
  First published by CCH Australia Limited
• Winter Newsletter
  Published 12 Aug 2011
  In this issue you will find information about free seminars which you may find of interest on legal planning ahead.
• New Partner in Intellectual Property and Business Services.
  Published 01 Aug 2011
  We are glad to welcome Patricia Monemvasitis to her new role as a partner of Carroll & O’Dea lawyers.
• FOLLOWING THE BOSS’ INSTRUCTIONS – HR MANAGERS BEWARE
  Published 21 Jul 2011
  First published in Human Capital Magazine
• Do you work in a coal mine?
  Published 07 Jul 2011
  If you work in or about a coal mine are you aware you have special rights?
• Serious Safety Breaches – Upholding Dismissals
  Published 07 Jul 2011
• Newcastle Opening
  Published 14 Jun 2011
  Newcastle relocate to their new office.
• Damages, duty to mitigate and the new duty to negotiate
  Published 08 Jun 2011
  Beware the new Duty to Negotiate provisions in the Civil Procedure Act
• SHARING A BIRTHDAY WITH THE FAIR WORK ACT – WHAT HAS CHANGED IN TWO YEARS?
  Published 19 May 2011
  First published by Human Capital magazine.
• NEW OHS LAW CHANGES COMING SOONER THAN EXPECTED IN NEW SOUTH WALES?
  Published 06 May 2011
  First Published by CCH AUSTRALIA LIMITED
• Banning Bullying - But What Is It?
  Published 01 Apr 2011
  The recent initiative by the new Liberal State Government in Victoria to introduce the “Crimes Amendment (Bullying) Bill 2011 has drawn attention again to the apparent epidemic of “bullying” in Australian workplaces and the need for a legislative response to this spreading disease.
• The Use of Social Media and Implications for the Employment Relationship
  Published 14 Feb 2011
  The almost universal usage of computers in the workplace and the emergence of new forms of social networking media such as Facebook, YouTube and Twitter are generating novel challenges for employers. Most employers are addressing the social media phenomenon by implementing acceptable use policies and/or monitoring employee internet usage in accordance with applicable surveillance legislation.
• COMMERCIAL LITIGATION AND DISPUTE RESOLUTION
  Published 07 Jan 2011
  January 2011
• “CASUAL” BY NAME – BUT NOT BY NATURE!
  Published 01 Jan 2011
  For some years Australia has had one of the highest rates of casual or insecure employment in the OECD. That state of affairs is a result of a number of factors, prominent among which is the changing nature of work in our age of exponential technological advances, increased employer interest in the perceived cheaper option of casuals and employee ‘lifestyle’ choices.
• The Fair Work Ombudsman – an industrial watchdog with teeth
  Published 01 Dec 2010
  The WorkChoices legislation introduced by the Howard Government changed many aspects of Australian workplace law, and some of those changes have been retained by Labor. One of the significant changes has been the establishment of a large and well-resourced federal government agency charged with the tasks of ensuring compliance with workplace laws and the protection of employees’ entitlements – the Fair Work Ombudsman (or “FWO”), previously known as the Workplace Ombudsman. Prior to 2007, state and federal government workplace regulators tended to be under-resourced and their impact on Australia’s workplace culture and the rights of workers was limited. With the FWO now on the scene, that state of affairs has changed fundamentally.
• Legal Link - Not For Profit
  Published 01 Dec 2010
  Welcome to the spring edition of Legal Link a publication designed to give you a snapshot of recent issues from Carroll & O’Dea Lawyers.
• Legal Link - Cyber Safety News
  Published 01 Nov 2010
  Welcome to the spring edition of Legal Link a publication designed to give you a snapshot of recent issues from Carroll & O’Dea Lawyers.
• Workplace Sexual Harassment: Implications beyond Discrimination
  Published 01 Nov 2010
  The recent publicity arising from the David Jones case has catapulted the issue of workplace sexual harassment back into the public consciousness and has highlighted the need for employers to ensure that their staff and management comply with anti-discrimination legislation at all times.
• Discrimination: The potential for attack on multiple fronts
  Published 01 Sep 2010
  The potential for discrimination claims by employees against their employers is certainly not new; employees have for many years been able to bring such claims against their employers using federal and state anti-discrimination legislation, and unlawful termination protections. However, since 1 July 2009 employees have also been able to commence proceedings against their employers using the new “adverse action” provisions under the Fair Work Act 2009 (Cth).
• Can the new “Transfer of Business” provisions work for employers??
  Published 01 Aug 2010
  Compared to the provisions in the now repealed “Work Choices” amendments to the Workplace Relations Act 1996, the Transfer of Business provisions contained in Part 2-8 of the Fair Work Act 2009 (“the Act”) provide greater certainty and flexibility for employers in a time of rapid change in modes of employment.
• MODERN AWARDS – MISSION ACCOMPLISHED?... NOT YET!
  Published 01 Jun 2010
  A major element of the Labor Party’s industrial relations policy for the 2007 Federal election was the replacement of the many thousands of State and Federal awards with a limited number of ‘Modern Awards’.
• “Workplace rights” and “adverse action” – Fear of the unknown or simply not yet known?
  Published 01 May 2010
  The Fair Work Act 2009 (Cth), which commenced on 1 July 2009, introduced some new and enhanced provisions relating to the protection of what are called “workplace rights”. These provisions provide an alternative basis upon which legal proceedings can be commenced by employees against employers where they are subjected to “adverse action”. However, in the nine months since the commencement of the Act, there has not been a huge wave of claims. Is it because employees fear the unknown quantity of new legislation or are they simply unaware that such rights exist?
• OHS: looking to a fairer future?
  Published 01 Apr 2010
  Most employers will be aware of the strict obligations they are required to meet under occupational health and safety (OHS) legislation, particularly those employers operating in NSW. Over the past two decades, the NSW regime has earned the reputation for being the toughest in Australia. Unlike the system operating in some other states, the NSW Act imposes on employers virtually automatic liability for alleged OHS offences. The Act requires employers to ‘ensure’ (taken to mean ‘guarantee’) the health, safety and welfare at work of all employees, an obligation that is far more demanding than the common law duty to take reasonable care for workers’ safety.
• Managing Chronic Sick Leave
  Published 01 Mar 2010
  “I have a senior employee who is regularly sick (due to colds, flu, etc). This person calls in sick approximately once a fortnight, sometimes for days at a time, and it’s hard to plan work around this person. He/ she is genuinely sick (displaying obvious signs of illness). The employee follows protocols, provides genuine medical certificates and abides by company policies, and while the employee is in the office, he/she performs ok. The problem is that the employee occupies a full-time position and he/she is not meeting the expectations of the role because he/she is only present around 80% of the time. How do I deal with this issue without breaching discriminations laws?”
• The National Employment Standard - The devil is in the detail!
  Published 01 Feb 2010
  A central feature of the national industrial relations system proposed by the Rudd Labor Government was the establishment of certain minimum employment standards applicable to all employers and employees within this national system. This feature is now found in Part 2-2 of Chapter 2 of the Fair Work Act 2009 (Cth) (“the FW Act”) and became operative on 1 January 2010, at the same time as the Government’s national system of industrial relations came into effect (with some minor exceptions in Western Australia).
• Property Newsletter February 2010
  Published 01 Feb 2010
  Register your interests – or risk losing them. A brief look at two recent cases that serves as reminders and lessons to ensure that any interest you may have in land is protected by registration.
• Property Law Update Retail Leasing November 2009
  Published 01 Nov 2009
  Assignment of retail lease – if it wobbles like a duck and quacks like a duck. A landlord refused to consent to assign on the basis that the Assignee would be changing the use to which the shop was put. The Tribunal agreed and the refusal was upheld.
• The New National Industrial Relations System - Some Certainty for Not For Profit Employers at last
  Published 01 Nov 2009
• Employment Law Newsletter - NFP Focus - October 2009
  Published 01 Oct 2009
• Property Law Update - Retail Leasing - October 2009
  Published 01 Oct 2009
  OH&S and fitout works in leased premises – principal contractors. A quick and brief overview of some of the OH&S issues associated with fitout works in leased premises – an important area of consideration for Lessors and Lessees.
• Property Law Update September 2009
  Published 01 Sep 2009
  Misleading and deceptive conduct and unconscionable conduct. When does an agent or manager go too far in attempting to secure a commercial outcome for a landlord? This newsletter looks at a recent case where the manager’s conduct was misleading and deceptive and unconscionable and the landlord and manager were penalised as a result.
• Property Law Update August 2009
  Published 01 Aug 2009
  What is compensation for fitout? The New South Wales Supreme Court had to determine what is ‘compensation for the fitout’ which a Lessor is required to pay a Lessee when the Lessor terminates a lease under a demolition clause – we look at lessons from that decision.
• Property Law Update July 2009
  Published 01 Jul 2009
  Licences can be a retail shop subject leases too. A recent decision in the NSW ADT reinforces earlier Court decisions that a licence granted for use of space by a retail shop business will itself be a retail shop lease and will be subject to the provisions of the Retail Leases Act 1994 (NSW) – including the minimum five year term.
• Unfair Dismissal Claims Bulletin
  Published 01 Jul 2009
  Important news about unfair dismissal claims Some important parts of the Fair Work Act 2009 (C'th) start on 1 July 2009, including the new rules concerning unfair dismissal claims
• Will you be ready for the changes in Fair Work Act ?
  Published 01 Jun 2009
• Property Law Update June 2009
  Published 01 Jun 2009
  Invalid Relocation Notice A short note on a case from the Victoria Tribunal which found that a Relocation Notice served under the Victorian Retail Leases Act was invalid as it did not contain sufficient details for the alternate premises and because the alternate premises were commercially disadvantageous for the tenant.
• Property Law Update May 2009
  Published 01 May 2009
  Key points in Relocation and Demolition under the NSW Retail Leases Act. This newsletter investigates court interpretations of key terms within the NSW Retail Leases Act including ‘vacant possession’, ‘genuine proposal’ and ‘alternative premises’. These are all crucial components of the legislation in relation to a landlord terminating a retail lease using a demolition or relocation clause.
• Fair Work Act 2009 now enacted - National Employment Standards Start 1 January 2010
  Published 01 May 2009
• HR Policies that promise too much ...
  Published 01 May 2009
• December 2008 - Immigration Law Update
  Published 01 Dec 2008
• September 2008 Immigration Law – Press Release
  Published 01 Sep 2008
• August 2008 - Immigration Law Update
  Published 01 Aug 2008