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The Fair Work Commission has determined an unfair dismissal application made against Deliveroo having regard to recent High Court guidance in respect of the question of whether a person is an employee or contractor. The test now focuses more on the terms of the written contract in question, but retains the ever important factors of the extent of control by the alleged employer over the activities of the alleged employee, whether the alleged employee is supplied equipment, and the ability of the contractor to delegate without consent. More than ever the terms of the written contract will be critical to the determination of the capacity of the contracting party. The decision can be found here https://www.fwc.gov.au/documents/decisionssigned/html/2022fwcfb156.htm For questions concerning employment and services contracts, please contact Gul-e-Raana Rizvi or Peter Muller at peterm@qbmlaw.com.au

Reported locally under the particularly adventurous headline “Premier keeps Dick in the Dark”, the amendments to Queensland’s land tax laws proposed by treasurer Cameron Dick have been shelved, at least for the time being. Those amendments would have seen the value of interstate landholdings included when calculating the overall land holdings of an owner, resulting in an added liability many owners.

A recent decision of the Queensland Supreme Court considered whether Beatrice Lane in Brisbane City is public or private land. While delving into matters concerning rights of way and easements often involves looking into the history of the land, this matter was unusual in that the relevant facts started from when the subject land was first offered for sale in 1851 – before Queensland was a colony in its own right (December 1859), and when it was still part of the colony of New South Wales, no doubt seen by many Queenslanders as Something Of Which We Do Not Speak. That of itself wasn’t of any real significance in the matter, but the decision does have a fascinating (for some) explanation of the various historical dealings with the property and 19th century land law. https://archive.sclqld.org.au/qjudgment/2022/QSC22-190.pdf QBM Lawyers advise in relation to land dealings and interests, including the obtaining and extinguishment of easements and rights of way. For any enquiries about those matters, contact Peter Muller peterm@qbmlaw.com.au

Many prospective employees are given employment contracts which contain restraints against competition with their employer. Given that these are given at the outset of the employment relationship, the employee might not be thinking about what would potentially happen at its end, and not pay a great deal of attention to the restraints. This however can lead to issues at the ending of the employment. Restraints against competition from employees are only valid to the extent to which they are reasonably necessary to protect the legitimate interests of the employer, assessed as at the time that the restraints were agreed to, but potentially having regard to planned expansion. Usually, this will involve protecting business intellectual property, and preserving the client relationship, for example restricting the employee from taking instructions from a client of the business with whom the employee dealt for a sufficient time to allow a replacement employee to form a relationship with the client. Many restraint clauses however go much further than what is reasonably necessary. It is not uncommon for clauses to provide that the employee cannot work in that industry for a period of months to years, even if it is their profession. The clauses then set out different periods of restraint and different areas, with the intention that if one combination fails as it is excessive, then a lesser one might be valid.  Sometimes there will be dozens of potential combinations of time, area, and capacity.  There is also legislation in New South Wales allowing the courts to impose a lesser restraint. The problem with this for employees is that they will not be sure what is or isnt valid until they are tested in court, at a cost of tens of thousands of dollars (money that the employer can afford but the employee might not) and potentially months or years of stress and risk. Unfortunately, the unfair contracts legislation does not apply to employment contracts.  It is possible that if it did, the restraints in many employment contracts would be taken to be grossly excessive and unfair.  There is also nothing in the Fair Work Act to protect the employees against this situation, whether or not deliberately done by the employer. As a result it is critical that any restraints in employment contracts are considered before they are signed, and that nothing is agreed to beyond what is reasonable. For advice on restraints in employment, please contact Peter Muller at peterm@qbmlaw.com.au