If you are unsure to the status of your workforce or the robustness of your employment and contractor agreements, we can help.  Contact Mark on 02 8096 8143.

Fair Work has handed down their Annual Wage Review. The 2019 Minimum Wage Decision applies to all employees covered by the National Workplace Relations system.

If these changes apply, employers need to adjust employee wages accordingly in the next full pay period starting on or after the 1st of July 2019.

The new Federal weekly minimum full time wage has increased by 3.0% to $740.80 or $19.49 per hour.

• For award based employees – the increase may be absorbed in the pay rate where it is in excess of the award rate and there is specific contractual agreement between an employer and employee to do so. 
  
• For non-award employees – the obligation is for employers to ensure that an employee is being paid more than the minimum wage rate for all their hours of work.

Following a couple of Fair Work Commission decisions in 2017 and 2018, some penalty rates in the following awards will also change from 1 July 2019:  

• Fast Food Industry Award 2010
• General Retail Industry Award 2010
• Hospitality Industry (General) Award 2010
• Pharmacy Industry Award 2010

If your workforce contains permanent and/or casual employees, please ensure you understand and implement the changes. For further information on the updated penalty rates, please visit the Fair Work Australia website for more information. Penalty rates changes

A new financial year is usually a time when government implements new changes and increases in fees as part of the immigration process. This year is no different.

Visa Application Fee Increases

The Department of Home Affairs has announced a 5.4% increase in application fees for most visa classes, commencing 1 July 2019. The increase will not apply to applications lodged before this date. For most applications, this will be a minor increase. The largest total increase will be for the Partner (Sc309/100 or Sc820/100), which will increase by $387.

The second visa application charge for the Contributory Parent (Sc143/173) and Contributory Aged Parent (Sc864/884) visas will remain at $43,600 per person. The Visitor (Sc600) visa fees will not be affected by the increase.
If you are eligible for a visa and considering lodging an application before 1 July 2019, get in contact with us and we’d be happy to advise on whether you can avoid this fee increase.

Changes to the Working Holiday Visas

From 1 July 2019, Working Holiday (Sc417) and Work and Holiday (Sc462) visa holders have the option of applying for a third-year visa. This is subject to meeting the criteria of completing 6 months of specified work in a specified area in their second year. This means that a successful application for a third year cannot be lodged before January 2020.

A lower number of permanent migration places

The government has capped the 2019/2020 immigration intake to 160,000, down from 190,000 in 2018/2019. However, with only approximately 162,000 visas reportedly granted in the 2018/2019 year, there may be little actual change from year to year.

Despite the decrease in prospects for migration given the lower number of places, the start of a new financial year can be a hopeful time for some prospective Skilled migrants. The Skilled visa invitation rounds for the last quarter of the financial year have seen only 200 applicants invited so far. We are likely to see an increase in invitation numbers from July 2019, although the points required for an invitation is likely to remain high.

If any of these changes affect you, we’re here to help call our Potts Point office 02-8096 8143 and ask for Pablo.

For our clients who have investment properties as part of their investment portfolio and are running businesses, this piece by Jessica Jiang of Clarity Tax Consulting, is really informative.

As Australians prepare to lodge their tax returns, the ATO reveals, besides keeping a firm eye on work-related expenses, the ATO’s top priority this tax year is rental deductions.

To continue reading https://claritytaxconsulting.com.au/blog-1/f/what-will-the-ato-focus-on-during-this-tax-season

You, right?

What if you are interviewed, do you own the rights?

And if you recorded the sound?

Or if it was filmed?

What if someone uploads it to social media?

• The Basics of Copyright
• Making a Monkey of Copyright
• Videography
• Exceptions
• Social Media
• Interviews
• Computer Copyright
• Conclusion

The law often struggles to keep up with society and that hasn’t been more evident then with the internet and social media.

If you post content to Facebook do you still own the rights to it?

What about Instagram?

Twitter?

Pinterest?

Vero? (Also what is Vero…)

While the law can seem archaic around these issues, it still applies, and can be extrapolated to influence modern artistic works.

The Basics of Copyright

Essentially the person who created the original work is usually the owner.

But what does created mean?

Well put simply it is who made the work come into the world.

So, for a drawing that’s easy, it’s who ran the pencil over the paper.

A photograph is also relatively simple, whoever activated the camera to capture the light going through it at that moment.

This means that even if someone composed the shot, placed the camera ‘just right’, adjusted the lighting then asked another person to activate the camera, the second person would own the rights.

Making a Monkey of Copyright

There’s even a famous case about this with a monkey.

Essentially a photography named David Slater placed the camera, turned on, near the monkeys.

One of them, a strapping monkey named Naruto, picked up the camera and activated it.

Naruto took a selfie,

And a dazzling one at that, better then any of my attempts

But, because the monkey cannot hold copyright, as it is not human, the image is therefore in the public domain.

Free for anyone to use.

Videography

So,

What does that mean for video?

Well if you are the person who presses record, you are the person who owns the rights.

If the sound is recorded on the camera then you own that too.

If it’s recorded on a separate device though, then the person who activated that is in control.

This means that all the other people involved in the process,

Actors,

Directors,

Costume Designers,

Lighting Designers,

Etc,

Don’t own the rights.

Exceptions

Now there are several exceptions, the first of which is both relatively obvious and is incredibly important

                 Employment

If you create a work while employed by someone, you do not own the rights.

Your employer has copyright.

Under the Copyright Act 1968 you give up this ability while you are under their service.

Again with the exceptions though,

The creative work must be in the scope of the employment.

For example, if you are hired as a school cleaner and you go home and paint a modern masterpiece the school won’t own the rights.

The only person who would own them is you, ready for it to be ignored for decades before making you a fortune.

If however you were cleaning the school gym and cleaned a cool pattern on the basketball court, this ‘artwork’ could be argued to be within the scope of your employment.

This would mean that the school would own the copyright to a cool, wet pattern on their gym floor.

The example is silly, but the point is made, if you create a work while within the scope of your employment, the entity that employs you owns the rights.

                 Commissioned Works

In a similar idea, if you are payed to create a work then the person who payed you will become the copyright owner automatically.

For example, if I pay a local artist to cast a 10’ statue of our office dog, Lilebette, I would automatically own the copyright to that work.

If the artist thinks it is worth more then what was paid (It is a giant dog after all), then they might try to sell that and create another work for the commission.

Unfortunately for the artist, the copyright is automatically ours, so they cannot legally do this.

Nor can they create more identical 10’ statues and sell them, as that expression of the idea belongs to the person who paid for it.

                 Government

If a work is created for the government,

Whether that be an agency, department or otherwise,

The copyright is automatically gained by that entity.

So, if it’s made for the government, it is owned by the government.

Social Media

Okay so we know who starts with copyright, but what happens when we post that online?

If it’s on our private website it’s easy, it stays ours 100%.

But what really happens if you post a company logo to a social network?

Or your “8 tips for better lawn mowing” video to your personal YouTube?

The easy answer is,

It depends,

Which is easy for me to say, but not so much for you to interpret.

Generally social media networks don’t claim copyright themselves or require you to transfer copyright to them.

What they do instead is require you to allow them to use your content.

This is through the terms of service.

These differ from platform to platform but are generally similar in this regard.

So, the safe answer is you still hold copyright, just Facebook, or Instagram, or wherever you post it to can do with it as they please.

Importantly this doesn’t mean that the users of the company may,

But the social media platform may sub-lease it to them without your consent.

Generally, though, if someone else wants to use your content on the platform they must ask you,

And because you are the copyright owner you can enforce the terms of that arrangement, if you want to have one at all.

Except of course if they change it enough to warrant fair use, but that is another issue.

Interviews

For an interview, our exploration of copyright should give you the indication that the person being interviewed does not own the rights to the recordings.

Generally, they have the ‘idea’ but copyright protects the expression of that.

In other words, the recording, article or lip-sync music video that someone makes from the interview.

Obviously, factors are different on a case by case basis so if there’s potential for some reason otherwise you should get in touch with a trustworthy lawyer.

Computer Copyright

If a computer made something purely independently then the work is in the public domain,

However, that is an incredibly rare occurrence,

Usually it is assisting a human, in which case the human that is aided by the computer owns the copyright.

Conclusion

Copyright is complicated, but somethings are cut and dry.

Hopefully this should give you enough clarity to understand the basics of copyright, if you have any more serious questions I would advise contacting a lawyer.

Here at Teddington we have some great options when they aren’t full of client’s work,

I would suggest giving us a call now at 02-8096-8143 or sending us an email at info@tt.legal while there is some availability.

For that there are a couple of visa options to get you out and about in Australia.

• Tourist Visa
• Working Holiday Visa
• Application Process
• Student Visa
• Permanent Residency
• Conclusion

Tourist Visa

Australia is a great place to visit, whether you are staying for a holiday, to see friends or relatives, or to work or study for a short time. Regardless of how long you intend to stay, you mustid= have a valid Australian visa.

Electronic Travel Authority (subclass 601)

The Electronic Travel Authority (ETA) was introduced to replace the complicated visa application process previously in place for Australian tourist visas. The Australian holiday visa is a multiple entry visa and entitles you to stay up to 3 months on each visit within the 12 months from when your visa is granted.

Conditions for ETA
• You do not have employment rights in Australia
• Business visitor activities are not restricted meaning you can handle business enquiries, negotiations, attend conferences, etc.
• You are allowed to study for the period of your visa validity
• You must be free of tuberculosis
• You must not have any criminal convictions for which you have been sentenced for a total combined period of 12 months or more

Working Holiday Visa

The Working Holiday Visa in Australia is a temporary visa ideally suited for young people who want to travel, work and study in Australia for a year.

It will cost roughly $440 (AUD) to apply and will grant you permission to stay in Australia for twelve months.

Still there are some regulations regarding your work and study during your time here.

You are allowed to do any work having all the rights concerning pay, conditions and workplace entitlements by the Fair Work Act 2009.

However, you are limited to a maximum of 6 months at one employer unless you have been given permission by the Department of Immigration and Border Protection.

You are also limited to a maximum of four months of study during your time here.

It’s a great option for exploring the country as you can find employment and support the trip while you’re in Australia however it is not a long-term solution as it doesn’t really lead into any permanent residency visa options.

The Working Holiday Visa Subclass 417 is also not open to all the nationalities.

That doesn’t necessarily mean there aren’t other options for coming Down Under such as the Work and Holiday Visa (subclass 462) and the Student Visa (Subclass 500).

There are some additional requirements for the Working Holiday Visa, these include:

– You must be between 18 and 31
– You cannot be accompanied by dependent children
– You must apply from outside Australia and you must remain there until your visa is granted
– You must be able to prove you have enough funds to sustain yourself and to purchase a ticket to depart Australia
– You must be of a level of Health that satisfies the departments requirements

Application Process

First you will have to prepare the appropriate documentation to support your visa application.

This could include personal identification, evidence of enough funds and evidence of employment. There may also be additional documents that could support your application that should come about from consulting an immigration lawyer.

Next you will have to submit your application via an online form, post or in person at an Australian embassy.

You will then soon receive confirmation that your documents and application have been received by the department.

You should then be able to track the application, being updated as it reaches each stage of the process.

Working Holiday Visas usually have a short turnaround and you can expect a result after around 6 business days if it is your first Working Holiday Visa application.

You may be asked to provide more details to clarify your application so that a decision can be made.

You should be notifying the department if there are any factors that turn up during the process that might affect the application. This could include a change of address, death, illness or change in relationship status.
You can review your decision and you may appeal if it doesn’t fall in your favor. I would suggest at this point reaching out to an immigration lawyer if you haven’t already to help smooth the appeal process and improve your chances of success.

Student Visa (Subclass 500)

The student visa offers a strong, semi-reliable progression toward permanent residency within Australia.

It grants the owner up to 5 years of residency within Australia that can be used to both study and work to support yourself.

Work however is heavily restricted under this Visa so it cannot be used a substitute for a work visa.

You can bring family members with you if they pass the visa application phase as well.

Eligibility

To be eligible for a Student Visa, you must have received a confirmation of enrolment from a full-time course at an institute registered with the Commonwealth Register of Institutions.

A letter of offer is not enough for a successful visa application.

If you are under 18 you are also required to prove you will have welfare support while you are in Australia.

If you are sponsored by the Department of Foreign Affairs and Trade, Department of Defence, a secondary exchange student or a postgraduate research student you don’t need to provide a Confirmation of Enrolment, a letter should suffice.

You must meet a minimum English ability.

You may need to prove you have the financial capacity for your time in Australia, this would include either
– Proof of funds for 12 months of living expenses, course fees and travel costs to and from Australia
– Evidence of the annual income requirement

So, what do you get for all that effort?

Well for the estimated $575 for the application, alongside the documentation, you can be eligible for up to 5 years in Australia while both studying and working.

While you can study full-time, you may only work a maximum of 40 hours over any 2-week period while your course is in session.

When your course is out of session however you may work for any number of hours so long as you are paying taxes under an Australian Tax Number.

Your Visa can also carry over into your next course if they are in related and relevant fields. That way you can stack your courses to reach up to the 5-year visa maximum.

Following on from your degree you may also apply to extend your visa to allow you to:

– Graduate
– Conduct further study
– Go on holiday
– Work within Australia
– Migrate

Thus, it places you with a period of work beyond your course where you can establish yourself within the Australian workforce, potentially finding a sponsor for your permanent residency.

Permanent Residency

An Australian permanent resident is the name given to a non-citizen who is the holder of a permanent visa.

A permanent resident can live, work and study without restriction in Australia.

A permanent resident has most of the rights and entitlements of a citizen, however they do not have the automatic right of re-entry into Australia if they travel internationally and they cannot vote in Australian government elections.

Since there are many different types of Visas, your first step will be to identify which Visa is the best option for you.

Partner Visa (Subclasses 820 and 801)

The partner Visa is the family-based type of permanent residential visa. If you have family in Australia, you may be eligible for Australian permanent residency.

Employer Nomination Scheme (Subclass 186)

The Subclass 186 visa requires you to be a qualified skilled worker nominated by an approved Australian employer.

Regional Sponsored Migration Scheme (Subclass 187)

The Subclass 187 visa requires you to be nominated by an approved Australian employer for a job in regional Australia. Regional Australia includes everything but the Gold Coast, Brisbane, Newcastle, Sydney, Wollongong or Melbourne.

Business Innovation & Investment Visa (Subclass 188)

The Business Innovation and Investment provisional Visa allows you to own and manage a new or existing business in Australia, or to invest in Australia. You must be nominated by a state or territory government or Australian agency to be eligible to apply.

Skilled Independent Visa (Subclass 189) / Skilled Nominated Visa (Subclass 190)

Foreign-national skilled workers who hold occupations on Australia’s Skilled Occupations List may be eligible for a Subclass 189 or 190 visa. This visa requires the applicant to complete a skills test and be nominated by a state or territory government. In addition to this in Visa 189 you can also be sponsored by an employer or family member.

Business Talent Visa (Subclass 132)

Establish a new business or expand your existing business in Australia with the Subclass 132 visa. This visa requires the applicant to have a minimum net business, personal assets and annual business turnover, or a minimum in venture capital funding. You must also be nominated to apply by an Australian state or territory government agency.

Once you have figured out which is the right option for you and are aware of the eligibility requirements you can apply for it on the Department of Home Affairs Website.

Conclusion

Australia is somewhat of a challenge to attain a visa to, especially if you are seeking the right to work within our shores. Fortunately, there are a large swath of options available for entering the country if you understand the system and have the relevant skills. My usual suggestion for someone with the eventual goal of permanent residency is the Student Visa as it allows them time in the country, work to support themselves and the potential to network to find a long-term sponsor. For more experienced individuals there are options available to go straight for the permanent residency visa. These are more difficult though, so I would suggest contacting an immigration professional.

If you have any questions feel free to shoot me an email at info@tt.legal or give me a call at +61 2 8096 8143

• What sort of leases are commercial?
• Does retail commercial leasing apply to your lease?
• Commercial Leasing in Australia is Controlled by the States
• Do I have to register my commercial lease in Australia?
• Do I have to have a lawyer look over the commercial lease?
• Unfair Contracts and terms under a lease
• What are some terms that I should understand?
• How much will it cost me to get a commercial lease in Australia?
• So what sort of timeline should you expect?
• What if something goes wrong?
• Conclusion

What sort of leases are commercial?

Strictly speaking commercial leases are those that are leasing a commercial property, which doesn’t really help us with a definition.

Commercial properties though are those that are used to produced economic benefit for either a person or a company.

So commercial leases would apply over spaces such as offices, workshops, warehouses, retail stores, storage sheds, working yards, mechanical shops, industrial units etc.

Essentially a commercial lease will apply over anything that isn’t a residential lease.

Does retail commercial leasing apply to your lease?

Retail leases offer greater protection over non-retail commercial leases, making them a stronger lease for the tenant to hold. Your lawyer should be able to identify if you qualify for a retail lease, offering you increased security in your investment.

If you are granted a retail lease, your land lord can’t charge you what’s called Key Money, that being upfront payment that isn’t a guarantee or a deposit, keeping more money in your pocket.

The landlord can’t withhold consent to an assignment of the lease without providing reasonable grounds. This means that they can’t deny your lease agreement without a solid and justifiable reason.

You are also protected from the landlord charging you for lease preparation costs, unless you’re investing in South Australia, thus you should be able to withhold a larger amount of capital.

In NSW, any security deposit that you pay must be registered with the Director-General of the Department of State and Regional Development. While normally you are still ‘guaranteed’ this money back, this provides an additional level of security.

As you can probably tell from those benefits, it is well worth your time to ensure that your lawyer is checking whether you qualify for a legal lease, which is why at Teddington we talk this through with our clients.

Commercial Leasing in Australia is Controlled by the States

It is worth noting that in Australia, the laws for commercial leases differ from state to state. This can make it tricky to be certain which laws affect your lease and how they interact with your investment.

This can be especially difficult if you are looking to open a chain of locations across multiple jurisdictions, with each state you open in having a different act to operate under.

Generally commercial lease lawyers in Australia are familiar with the differences and can help you navigate the separate states. A good example of that at Teddington is our work with Hearing Retail Group who has locations in 5 states and one territory. Working under 6 different acts is a complicated affair that affects each location. Now with over 50 locations, Hearing Retail group and Teddington have successfully managed these varied rules.

Do I have to register my commercial lease in Australia?

Quite often no, but that doesn’t mean you shouldn’t. Most states have some protectable term where the contract is covered. For Victoria this is indefinite resulting in a lot of people not registering leases. NSW and QLD are for 3 years and SA it is just one year.

It is worth considering registering regardless though, as it gives your lease extra protection. When you register, it will place a notation on the certificate of title that the landlord possesses.

This means that when they present this title to other parties it is viewable, and your stake is at the table.

The most common occurrence here is if they decide to sell the property, the purchaser will see your lease and will have an obligation to uphold your agreement.

So, if you do register your commercial lease, it offers an extra layer of protection over your business should your landlord decide to sell.

For the Landlord, it offers an increase in property value as it represents an already vetted and signed tenant all but guaranteeing a return on the property.

If the tenant requires that the landlord registers the lease, then the landlord must do so and be present at the registration. However, the tenant must pay the cost of the registration.

Do I have to have a lawyer look over the commercial lease?

 Again, technically no. However, in this case I would strongly suggest you consult a legal professional as I would with most contracts.

Considering the level of investment that usually goes into a commercial lease, the potential for damage to your business is quite high.

Thus it’s not worth the risk to be signing a contract without someone who is trained to identify potential potholes to your business future.

In commercial leases, tenants can often negotiate the removal of onerous terms that you or a lawyer identify.

Lawyer’s are also great at providing information and ideas for these negotiations, stressing their implications for the success of your business.

Landlords should also consult with their lawyers due to the level of risk they are putting their asset under without professional hands.

Unfair Contracts and terms under a lease

 I personally suggest that clients ensure they aren’t infringing on unfair contract terms as these can have significant effects on tenants if not picked up.

Landlords are also at risk if there is an unfair term in the contract as it against legislation and could leave a loophole for tenants damaging your business.

Terms to look at are those that could cause significant imbalance between both party’s rights. That being either the tenant or the landlord benefiting to the others misfortune.

What are some terms that I should understand?

These are some key words that should enable you to be able to navigate through the contract. However, I would still suggest consulting a legal professional if you find something you don’t understand.

How much will it cost me to get a commercial lease in Australia?

The actual lease won’t cost you anything, unfortunately that is usually the end of the freebies. Leasing a property is a significant financial investment both in terms of running the location and securing it.

Generally, the tenant will have to fund a bank guarantee or a security deposit to provide safety for the landlord.

To prove your ability to pay rent, you usually will have to pay in advance when you sign your commercial lease agreement.

The contract will also outline additional costs such as mortgage consent fees, outgoings, operating expenses, turnover rent, promotional funds or remit fees.

An Australian lawyer should also be budgeted considering these financial costs often represent a lot of hard work for you and your business. A lawyer will reduce the level of risk you are exposed to giving you the peace of mind to operate your business.

Fortunately you no longer have to pay stamp duty on a commercial lease, but if you are planning on subletting or transferring the lease then you will have to pay.

So what sort of timeline should you expect?

The landlord party (usually their lawyer) drafts the lease agreement and a disclosure statement (for retail) and presents it to the tenant.

This is then the opportunity for the tenant to look over the contract and identify and terms that they are worried about. I would also strongly advise seeking a professional set of eyes to look over it as well.

With your legal team you can then usually negotiate with the landlord to potentially exclude any terms that don’t support your objective with the lease.

The tenant will then collect all the documents they require (usually a fully executed lease, initial rent deposit, certificate of currency for insurance and some sort of bank guarantee or security deposit) and present it to the landlord.

If the landlord is holding a mortgage over the property, they will also need to obtain consent from the mortgagee (usually the bank). The tenant is sometimes held responsible in covering the cost for this consent.

The landlord then usually registers the lease.

What if something goes wrong?

 Fortunately, the Australian system is quite defined in your options of what you can do if there is a dispute over the contract.

Failing negotiation, there are dispute resolution procedures that can be initiated that allow enforcement over the outcome.

These differ from state to state so for NSW this would be the NSW Civil and Administrative Tribunal.

Conclusion

Commercial leases are costly endeavors and thus is usually a significant investment for both parties. I would strongly recommend getting professional legal advice to look over the contract and to protect your investment. Whether that is through a fixed fee from a legal firm such as Teddington Legal or through more traditional hourly rates.

Check to see if you qualify as a retail lease as there are extra protections that apply.

Make sure you understand which leasing legislation you fall under as every state differs.

Consider registering the lease to enable an extra level of commercial protection.

Ensure you understand your part in the leasing process as to not miss a critical step and put your business at risk.

If you still have questions, feel free to shoot me an email at info@tt.legal or give me a call at +61 2 8096 8143

简而言之，就是将房地产的产权从一方转移到另一方。

很简单吧？

不过，如果这样想就错了。通常它涉及几个步骤，这些步骤可能会非常复杂。对于房地产的买方和卖方来说，这个过程有所不同，我会尝试从两个角度进行介绍。具体涉及以下内容：

在理想的情况下，您应该在就房地产出价或放盘出售之前计划好相应流程，确保有法律顾问支持您实现购买或销售目标，并准备好直接进入房地产过户流程。

我在以下给出了关于如何针对自己的目标选择最佳从业人员的一些建议，但现在我们先来看看过户流程。

房地产过户流程

您的报价被接受或竞购胜出之后，便会进入过户流程。卖方律师将首先进行产权检索。该流程即确认卖方是否实际拥有相关房地产，为双方确保这是一项合法的销售。

律师还将完成几项政府检索，并获取房地产类型的相关文件。

然后，他们将向买方提供这些信息及初步起草的销售合同。

与您的律师协商以了解流程，并确保一切正常，这一点非常重要。例如，询问他们房地产是否有任何限制（列明的遗产等），产权契约是否正常及是否有任何可能影响销售的其他因素。

优秀的律师会帮助您了解这些流程，让您充分了解应向买方提供什么，或了解您所要购买的房地产。

交换合同

此时，每一方都将已签署的相同版本合同转交给另一方，房地产出售开始具有约束力。

买方还必须提供房地产定金支票，作为合同的对价。

您的律师应该负责处理这个流程，检查两份合同的两份副本，以确保它们内容相同，并告知您如何签署及在何处签署文件。

这个流程听起来似乎很复杂，但在律师的支持下可以变得很简单。

优秀的律师可以把控这个流程，并将解释该流程的每一步，让您有信心完成相应流程。

购买的审慎思考时间（冷静期）

根据法律规定，交换合同后有一个冷静期。

从本质上讲，这意味着买方可在规定时间内撤销交易。这有助于减少高压销售和买方悔恨等问题。

但这不是免费的流程，因为如果买方撤销交易，则必须向卖方支付房地产价格的一小部分。目前这个比例是0.25%，所以，如果房产商定的价格为100澳元（虽然不现实），那么如果买方撤销交易，则他们将被卖方没收25分。

对于100澳元的交易，这点钱不算什么，但是您可想而知，对于真正的房屋价格来说，这笔钱可能会很高。

冷静期时间多长因合同而异，但通常是在交换合同后的5个工作日内。

如果合同没有规定时间，那么冷静期将持续到过户流程完成为止。

还有一种文件被称为66W证书。66W证书并不像听起来那么可怕，但基本上该证书允许您跳过冷静期，并在更短时间内进一步完成相关流程。买方通常会要求提供该证书，但卖方不必同意，卖方可保留其冷静期权利。

如果您是买方，冷静期很有好处，但如果在咨询律师后，您认为不需要冷静期，便可继续执行之后的购买流程。

经验提示：可利用这段时间来确认可能影响您房产的周围的开发方案。例如，我已完成房产转让，但视线会在一年内被其他建筑堵住，从而使房产价值的最重要因素被抹杀。

提问时间

您的律师应当与您协商确定发送给卖家的一系列问题。

这些问题被称为有关产权的正式请求，是卖方为确保您购买而要回答的正式问题。

这些问题对于确定您需要对房地产的那些方面进行检查非常有用。

该检查房产了

完成房产过户流程之前（特别是前三天），买方有权检查房地产。

理想情况下，卖方应该在此时离开该房地产，但他们没有义务这样做。如果出售对象不包括家具或其财产，则尤其如此。

如卖方尽力配合，他们就会腾出房地产，并保持其整洁干净。

在该阶段可聘请一位检查员，以确保您不会遗漏任何基本的或代价成本较高的房地产缺陷。

如果买方确实发现了他们不满意的事情，他们可能会要求双方等待最终解决，直至卖方解决问题为止。

有时买方不希望推迟购买，您可能也不希望推迟——这种情况下可安排和解，并在问题得到解决之前扣留房地产售价的一部分。

确定合同并获得钥匙

到这一阶段，您已完成大部分流程，最后是完成产权交接的时候了。无论您是买方或卖方，这都是令人兴奋和值得称道的时刻。

买方律师将按照这一流程进行操作，并准备必要的文件，确定最终的结算数据，并确保支票准备就绪并且恰当。

他们还负责安排买卖双方之间的会议。

通常还有第三方，即银行。如果卖方对房地产有抵押，银行必须在场收取应收欠款，并允许卖方解除房地产抵押。

会议将以安排好的方式进行。

首先，买方将提交房地产全价支票。

他们还将提交“代理订单”。这即意味着房地产经纪有权释放他们持有的定金。他们会在收到其费用及适用于相关房地产转让的任何其他费用后将其释放。

然后由卖方律师跟进，他们提交已签署的转让文件和房地产产权文件。

之后，双方将签署一套转让和产权契据的文件。如果有贷方（通常是银行），他们将确保对转让和抵押进行登记。

贷方将持有抵押贷款和产权文件，直到他们收到全部贷款还款。

之后是最有意思的环节。

卖家将立即移交进入房地产需要的工具，如钥匙、密码、门卡或遥控器。这与定金一样，也是合同的对价，意味着合同内容付诸实施。因此，您的律师将确保实际发生这种情况，遵循法律流程。

然后卖方不能再进入房屋，除非这是他们的主要居住地。这种情况下，他们可将其“钥匙”保留到第二天中午。

完成

最后，代表买方的银行将进行一系列最终检查，包括抵押转让、产权文件等。

完成这些步骤之后，银行即确认所有权转让已经完成。

您还必须向澳大利亚地契局（Land Titles Office）登记新的所有权。优秀的律师将引导您完成此流程，以确保您已采取所有必要步骤

然后就大功告成了！

房产过户流程结束，新业主拥有该房地产。

但您还应该了解其他一些事项……

不利事项

在整个过程中，卖方必须披露任何可能影响房地产过户结果的事项。也就是说，他们可能知道一些关于房地产的不明显的负面信息（比如白蚁，不过通过检查应该能了解这个情况）。

如果确实发生这种情况，那么即使交易已经结算，买方也有权撤销合同。

这仅在买方之前不知道有该问题时才有效。以白蚁为例，如果在房产检查中已经发现这一问题，但卖方没有告知，则买方无法撤销合同。

保险

由于房屋产权在流程结束之前不会变化，因此房地产的损害风险等仍然属于卖方的责任范围。

因此，强烈建议他们在过户流程结束时的结算之前维持保险。

例如，如果房屋在合同交换后但在完成之前被烧毁，则损失需要由卖方承担。

房产过户与律师

到目前为止，我们应该可以清楚地看到：这个流程非常简单，但如果经手从业人员未接受过恰当训练，可能会带来许多麻烦。是否聘请律师或过户师帮忙处理相关流程，这个决定非常重要。但更重要的可能是决定聘请哪位律师或过户师。您应该考虑以下因素：

• 经验：无论您选择哪种方式，都应该询问从业人员的经验情况。无论它们是否与您的房地产相关，无论它们是否与您的销售情况类似。
• 雇员：您也应该考虑他们是否真的会自己去做这项工作，还是会安排雇员负责处理您的房产过户工作。在理想情况下，您应该寻找亲力亲为的人，因为他们拥有第一手经验。如果您聘请了不会直接处理相关流程的人，那就核实一下负责具体工作人员的经验，不论他们是否乐意。
• 保险：律师必须就他们提供的咨询服务投保，这样如果他们犯了错误，就有财务支持来支付相应费用。有些人不需要过户师，有些人则需要，所以最好与您聘请的人员进行确认。对于任何法律交易，我都建议避免聘请未投保的从业人员。
• 价格：关于价格的选择有很多，如今许多从业人员都提供固定费用价格。这通常比小时费率更合算，因为您可以控制成本，可以做支出预算。一般来说，您应避开最便宜的选项，因为他们通常缺乏经验、缺少支持资源，而且过于想要获得业务。尽管如此，也并不是说越贵越好，有很多高质量的选项可满足您的预算。
• 训练：另外，有必要核实从业人员的资质，确保他们有权从事相关业务，并确保他们确实适合您的需求。

结论

买卖房地产并不难，但通常会面临很大的压力。但愿我为您提供的针对相关操作流程的专业知识，能对您有所帮助，让您更好地了解房地产过户的步骤。好的律师应当能够帮您缓解压力，让您随时了解最新步骤以及相应的操作。Teddington始终致力于让您生活中的“假想”成为现实——我认为，选择经验丰富的律师能够帮助您掌控情况、确保安全，这样，无论您最终选择哪位律师，都能更好的实现这一点。

如果您仍有疑问，请随时 联系我们 或致电给我：+61 2 8096 8143

The media keeps reporting that the gig economy is on the rise, but how does that affect your business?

Are the people that you hired employees or contractors? The employment contract may say one way or the other but in the eyes of the law that is up for debate.

The essential differentiation is pretty simple, employees work for a business while contractors work for themselves.

What tends to happen with legal discussions is the surface is easy to understand, but then there are the intricate details that might be putting your business as risk.

• Consequences of Incorrect Assignment
• Differentiators
• Uber Employment
• Independent Contractors
• Reasons for confusion
• Employee
• Long Term Casual Employees
• Flexible working arrangements and leave
• Superannuation and Tax
• Workplace Safety
• Conclusion

Consequences of Incorrect Assignment

Firstly, I thought I would clear the air and stress the importance of having a fundamental understanding of these employment relations. Businesses are liable for up to $51,000 fines should they incorrectly label an employee as a contractor.

It might not be enough to tank your business, but it certainly will be dragging you down.

Fortunately, it’s easily avoidable so long as you’re educated on what definition applies to your hires.

Differentiators

Employment is judged based on the entire relationship of employment. This means any one factor doesn’t determine the status of the hire. For example, the contract alone doesn’t dictate the type of employment.

There are several factors that contribute, these are;

• Remuneration: Essentially this is whether you are paying the worker based on if they’ve completed a task instead of the amount of time they spent doing it. While this seems like a simple way to split the options, traditional lawyers for example are paid by the number of hours they work, unlike Teddington where we usually do work based on a fixed fee. In this case, the traditional lawyers still aren’t employees because of the other factors in the relationship.
• Leave: If the worker is accumulating sick leave or paid holidays while they work their hours at your discretion, it is a strong indicator for being an employee. If they take breaks when they please and complete the work on their schedule it suggests that they are a contractor. This boundary is being challenged with the increasing number of flexible workplaces where employees can take days off from work on a non-limited method, taking them as they need regardless of how many they have used. Like the other factors, this shouldn’t be a sole indicator of employment status.
• Choice of Work Hours: Generally, if an employer can dictate when the hire works or where they work from, it is an indicator toward an employment relationship. Contractors usually retain this ability, free to choose on what schedule they operate and sometimes on what locations. However, if we look at construction workers (who are usually contractors) we can see that they have an assigned workplace and there is a growing trend to allow employees to work from where they want, when they want instead of office environments.
• Equipment: If a hire is responsible for obtaining and maintaining their own equipment, they are usually a contractor. This is especially true if the cost is significant as a proportion of total income. The caveat being that some workplaces require their employees to provide their own laptop or devices, which is equipment which isn’t particularly cheap.
• Taxation: Are you handling the hires taxation? Generally, the employer will handle the taxation on any payments to an employee but will leave a contractor to deal with tax themselves.
• Sub-Contracting: If the hire can delegate work to someone else it would suggest that they are a contractor because employees usually have to do the work they are assigned. This isn’t a straight cut factor either as employees frequently pass off work to other people within the organisation
• Contract: The contract between the two parties is a strong indicator toward the intent of the relationship. It will usually set out the terms based on the other factors and can be used to argue what category the worker falls under. It defines factors such as taxation, renumeration, insurance, superannuation, subcontracting and exclusivity. However, it isn’t considered to be the definition of the relationship and can be overturned by the Fair Work Commission.

It’s those factors that ultimately decide whether your new hire is an employee or a contractor, regardless of what the contract states.

It’s pretty clear that none of them solely dictate which category workers fall into, instead the entire relationship must be considered across those factors.

Let’s take a look at a Case Study to see if that can help give us some perspective

Uber Employment

You might have heard of the controversy with employment within Uber and other ride sharing companies.

This was tested by the Fair Work Commission giving us a solid ground to stand on for your business dilemma.

An Uber driver (Kaseris) was terminated from being able to operate on the app without warning due to his low rating. They claimed that Kaseris was an independent contractor and not an employee and thus had no obligation to give warning.

The Fair Work Commission said that Kaseris chose when and where he wanted to work, he only used the app on some days and chose which clients he would transport. Kaseris also used his own vehicle and paid maintenance on it. The driver only received payment when he completed a specified trip.

This meant over the factors that we talked about, he was considered an independent contractor and not an employee leaving Uber with no obligation to give warning to the termination of his contract.

 Independent Contractors

Independent contractors don’t have to be an individual. They are usually a business that is inhabited by people who complete the work.

On the flip side though, an individual can also be a business as a sole trader, leading to easy confusion as to the state of their employment.

A good way to look at this is tradies.

Generally, a tradie will be an independent contractor as they run their own business, completing work on their schedule and choosing what tasks they want to be involved with.

An apprentice for a tradie is considered an independent contractor to you as you hired the tradie. However, for the tradie, the apprentice is considered an employee and would expect to receive all the above benefits from the tradie (but not from you).

Reasons for confusion.

ABN: If a worker has an ABN, it doesn’t necessarily mean they are a contractor as you must look at the relationship as a whole. Having said that if they are using the ABN to operate a business in that field (especially if they have other clients) it is a strong indicator towards being a contractor.

Business Name: It is similar for a business name. I could be working as a lawyer here at Teddington and own a registered fruit stall in The Rocks, it wouldn’t make me a contractor for Teddington.

Invoicing: Invoicing is not a strong indicator of the relationship as both employees and contractors sometimes operate under this basis. For example, many casual employees log their hours on behalf of the employer and submit it for renumeration.

Employee

So what sort of responsibilities and obligations do you have toward your employees?

Well quite a number unfortunately.

Under Australian law, you are obligated to provide a minimum number of requirements defined as the National Employment Standards (NES for short). These mean they have protection but also it sets out to ensure that they are productive in the workplace.

Some industries are dictated by an additional set of requirements, specified as an ‘award’. I would strongly advise making sure you are compliant with your industry’s award levels.

Your non-casual employees have a maximum number of hours that you can request for them to work for. For full-time employees this is 38 hours and for part-time employees this is the number specified in their contract under the 38-hour mark.

That’s not to say that you can’t let them work over that limit, most ambitious employees will want to work longer hours, it just prevents you from requesting them to do so.

Long Term Casual Employees

Long term casual employees are those that have been working at your business for more than 12 months and have received a regular and systematic assignment of shifts. They must also have the reasonable expectation to continue to receive those shifts.

These employees have more rights than a standard casual employee and are closer aligned to permanent positions.

Flexible working arrangements and leave

Employees are also entitled to requesting for a change in the scheduling of their work hours should they have a child below school age or a child with a disability below the age of 18. This also applies to Long Term Casual Employees.

They are also entitled to unpaid parental leave during the development years of their child. If they have worked at your business for a continuous year they are able to access the government’s paid parental leave scheme giving them options to make this leave paid under the governments support.

Permanent employees are also entitled to both paid annual leave and personal leave. Annual leave accumulates as the employee works for your business, starting with 0 when they first start. For paid personal leave they receive a minimum of 10 days for each year at the business.

All employees will also receive a pair of unpaid carer’s leave days per year where they are caring for an immediate family member.

That’s a lot of leave to track and pay out, but if you have employees you are required to provide these as a minimum.

If you’re worried that your contractors may be in the grey area and you can’t support these amounts of leave I would suggest speaking with a lawyer on how you can get that contract more defined.

Superannuation and Tax

Your business also is required to handle the tax and superannuation payments of your employees. For super this means paying the current 10% of income into their nominated super fund.

For tax you are obligated to determine what rate you withhold from your employee to pay to the Tax Office. You will use a Pay As You Go system, withdrawing their tax percentage from each pay check so that they receive a constant flow of cash to support themselves.

Finally, you will also have to pay what is referred to as a fringe benefits tax, a rate against additional expenditures for you employees. This could include entertainment or living away from home costs.

At Teddington we would advise you at this point to speak to an accountant to ensure you have the correct processes in handling your payments.

Workplace Safety

Finally, you are obligated to provide a safe place of work for your employees. This essentially means reducing the risk that they are exposed to while under your duty of care. At a basic level you should be ensuring that they are trained in the operation of the workplace, that there are clear exit and entry points, that they understand fire safety procedure and that it is free of hazards. This act is complicated and varies greatly from workplace to workplace, so I would suggest seeking advice on how best to manage it.

Conclusion

You can see how easy it is to be confused by the two categories of workers. Generally, at Teddington we encourage our clients to review the relationship so that it is indicative of the category that suits your business. Whether that is the control over an employee or the flexibility and minimal commitment of a contractor.

With appropriate management you can tailor the relationship to match your business needs and reach your goals.

If you still have questions, feel free to shoot us an email at teddington@tt.legal or give us a call at +61 2 8096 8143

Well put simply it’s the transfer of ownership of a property from one party to another.

Pretty simple right?

Sadly, I’d be wrong to believe that. Usually it involves several steps that can get quite complicated. These differ from if you are the party purchasing the property or if you’re selling it but I’ll try to cover both angles. I will be covering:

• Exchanging the Contract
• Cooling Off Period
• Formal Questions
• Inspection
• Settlement
• Finishing Up
• Adverse Matters
• Insurance
• Conveyancer vs Solicitor
• Conclusion

Ideally, you should be planning your process before you place offers on properties or list your property for sale to ensure you have a legal advisor by your side supporting your purchasing or selling goals, ready to jump straight into the conveyancing process.

I’ve included some pointers on how to choose the best practitioner for your objectives below but for now let’s take a look at the conveyancing process.

The Conveyancing Process

Once you’ve won the offer or auction, the conveyancing process gets underway. The solicitor for the party selling the property will first conduct a title search. Basically, this check whether the seller actually owns the property to assure both sides that it is a legal sale.

The solicitor will also complete several government searches and acquire the relevant documents for your type of property.

They will then provide these to the buyer, alongside the initial drafted contract for the sale.

It’s important to confer with your solicitor to understand the process and to make sure everything is in order. For example, asking them if there are any restrictions on the property (heritage listed etc), if the title deeds are in order and whether there are any other factors that might affect the sale.

A good solicitor will keep you informed of these processes, so you fully understand either what you are passing on to the buying party or what you are purchasing.

Exchanging the Contract

It is at this point that the sale of the property becomes binding, by each party passing over a signed identical version of the contract to the other side.

The buying party will also have to provide the cheque for the deposit on the property as consideration for the contract.

Your solicitor should be managing this process, checking the two copies of the two contracts to make sure they are identical and informing you in how and where to sign the documents.

This sounds like a scary process, but it can be quite simple with the support of a solicitor.

A good solicitor will have it under control and will explain each step of the process so that you are confident in committing to this process.

Contemplation time on the purchase (Cooling off Period)

Legally once the contract is exchanged there is a cooling off period.

Essentially this means that the buyer has a defined period of time that they can back out of the deal. This is to help mitigate against things like high-pressure sales and buyer’s remorse.

It isn’t a free process though, as if the buyer backs out they must pay the seller a small slice of what the agreed price was for the property. This is currently 0.25%, so, if you have an agreed price for the property at $100 (However realistic that is) then if the buyer backs out they would forfeit 25 cents to the seller.

That’s not really a significant cost when dealing with $100 but with the prices of houses you can image it can be hefty.

How long the cooling off period is varies from contract to contract but usually its 5 business days from after the exchanging of contracts.

If the contract doesn’t specify a time, then the cooling off period is ongoing until the conveyancing process is complete.

There’s also this thing called a 66W certificate. Not as scary as it sounds but it basically allows you to skip the cooling off period and get further along the process in a shorter time frame. The buyer will usually ask for it, but the seller doesn’t have to agree, holding their right to the cooling off period.

Cooling off periods are great if you’re buying, but on consultation with your solicitor you feel you don’t need it then by all means commit to continue moving through the purchase.

Tip from Experience: Use this time to check for things like development proposals around the property that might affect you. For example, I’ve done the conveyancing on properties where the view was going to be built out within a year, killing the most significant contributor to the property’s value.

Question Time

Your solicitor should work with you on a set of questions to send to the seller.

These are known as requisitions on title and are formal questions that the selling party will answer to assure your purchase.

They are quite useful for identifying areas of the property that you will need to inspect.

Time to inspect the property

The buying party has the right to inspect the property leading up to the completion of the conveyancing process (specifically the three days prior).

Ideally the selling party should leave the property by this time, but they’re not obligated to. This is especially true if the sale doesn’t include furniture or other possessions.

A cooperative seller will have vacated the property and left it in a tidy and clean state.

It is worth getting an inspector in for this stage to ensure you’re not missing any fundamental or costly flaws in the property.

If the buyer does uncover something to their dissatisfaction they may force both parties to wait on the final settlement. This will continue until the issue is resolved by the seller.

Sometimes the buyer doesn’t want to delay on the purchase and you might not want to either, in this case it is possible to arrange for the settlement to occur regardless and to withhold some on the cost of the property until the issue is fixed.

Settling the contracts and getting the keys

So, you’ve made it through most of the process and its finally time to pass over the ownership. Whichever side you’re on this is an exciting and commendable time

The solicitor for the buyer will have followed the process up to this point and prepared the necessary documentation, worked out the final figures for settlement and make sure that the cheque is ready and in order.

They’re also responsible for arranging the meeting between the two parties.

There is also the usual case of a third party, that being the bank. If the seller has a mortgage over the property, the Bank will have to be present to receive the cost owed to them and allow the seller to release the property.

The meeting will flow in a structured manner.

Firstly, the buyer will pass over the cheque for the full price of the property.

They will also hand over a ‘order on agent’. Basically, this means that the real estate agent has authorisation to release the deposit they’ve held. They will release it after they have claimed their fee’s and any other fees applicable to your conveyance.

Then the seller’s solicitor is up, they hand over an executed transfer document and the documents of title over the property.

Both sides will then sign a set of documents for the transfer and title deed. If there is a lender (usually a bank), they will ensure that the transfer and mortgage is registered.

The lender will take possession of the mortgage and title documents until they have received their entire loan back in repayments.

Now the fun part.

The seller will immediately hand over any access devices such as keys, codes, swipe cards or remotes. Like the deposit, this is the consideration in the contract meaning what actually puts it into force. So, your solicitor will ensure that this physically occurs to follow legal procedure.

The seller then no longer has access to the house, unless it is their place of primary residence. In this case they may hold onto their ‘keys’ until Mid-day the following day.

Finishing up

Finally, the bank on behalf of the buyer will conduct a series of final checks including the transfer of the mortgage, title documents etc.

Once these are complete the bank signifies that the transfer of ownership has been completed.

You will also have to lodge your new ownership with the Land Titles Office. A good solicitor will walk you through this process to ensure that you have taken all the necessary steps

Then that’s it!

The conveyancing process is over, and the new owner has possession of the property.

There’re a few extra things you should know though…

Adverse Matters

Throughout the process, the seller must disclose anything that would affect the outcome of the conveyance. Basically, if there is something negative about the property that isn’t obviously apparent, but they are aware of (think termites even though the inspection should have picked this up).

If this does occur, then the buyer has the right to back out of the contract even after it has settled.

This only works if the buyer wasn’t aware of the issue. For our termite example, if the inspection had picked it up but the seller didn’t tell them, the buyer wouldn’t be able to back out of the contract.

Insurance

Essentially as the ownership of the property doesn’t change until the conclusion of the process, the risk of damages etc on the property still fall under the seller’s responsibility.

For this reason, it is strongly recommended that they maintain their insurance until after the settlement at the end of the conveyancing process.

For example, if the house burnt down after the contracts had exchanged but before the completion, then it would be the seller’s loss.

Conveyancer vs Solicitor

By this point I think its relatively clear that the process is quite simple, but there are plenty of nuisances that would catch an untrained practitioner. The decision of whether you go with a solicitor or a conveyancer to handle the process for you is important. Probably even more important is which solicitor or conveyancer. You should be looking at;

• Experience: Regardless of which option you go for, you should be asking for the experience that the practitioner has earned. Whether they are relevant to your property and whether they have seen similar situations to those your sale falls under.
• Employees: You should also be looking at whether they will actually do the work themselves or if they have staff that will really be looking after your conveyance. Ideally you should be looking for someone who will manage it themselves as they are the ones who have earned the experience. If you do go for someone who won’t directly be managing your process then check the experience of the people who will, despite their protests.
• Insurance: Solicitors are required to be insured on the advice that they give so that if they do make a mistake then they have the financial support to cover the cost. Conveyancers aren’t required however some do, so it is worth checking with whoever you are looking at. I would avoid uninsured practitioners as a rule with any legal dealings.
• Pricing: There’s a lot of options out there, and in the modern world many of them offer fixed-fee pricing. This is usually the better option over an hourly rate as you can control the cost and budget the expenses. Generally, you want to avoid the cheapest options as they usually lack the experience or support and are too desperate for a work load. Having said that don’t run for the most expensive, since there are plenty of high quality options available to fit your budget.
• Training: It is worth checking what the practitioner’s qualifications are as well, just to make sure that they are authorised to be dealing and that they are well suited for your needs.

Conclusion

Purchasing or selling a property can be easy, but usually it’s a stressful time. Hopefully I’ve provided you with some insight as to how the process works so that you can have a good idea as to what is going on during the conveyancing process. A good solicitor should take the stress out of it, keeping you informed as to what stage you’re up to and how to proceed. As a rule, at Teddington we try to make the “What if” in your life a reality and I feel that by keeping you informed and safe in experienced hands encourages this regardless of which solicitor you end up trusting.

If you still have questions, feel free to get in contact or give me a call at +61 2 8096 8143