Cullen Macleod Lawyers

Australian High Court to rule on 'Genuine Redundancy' exception to Unfair Dismissal laws

Yesterday the High Court granted leave to an employer, Helensburgh Coal, to appeal to against a Full Federal Court Court decision that its termination of 22 employees in 2020 was unfair.
The employer argued that they were validly dismissed because the terminations were genuine redundancies and it had done what it needed to do to consider redeployment elsewhere.

The question the High Court will look at is what is required in the case of a genuine redundancy, including the relevance of the employer's individual circumstances when looking at redeployment of workers to other roles in the business.

The employer will argue that "The question is not whether it would have been reasonable for the person to be redeployed in the abstract but whether it would have been reasonable for the person to be redeployed within the existing state of affairs, which is the 'employer's enterprise 'as it was at the time of the relevant dismissal."

The High Court's decision will clarify the scope of what makes a genuine redundancy, and what needs to be taken into account, when making an employee redundant.

A decision that is likely to have far reaching consequences for employers given the high amount of redundancies in Australia (an estimated 89,300 people were retrenched every quarter between November 2022 and August 2023 which was up on the average 87,300 the previous year). An likely to increase, given the current economic outlook.

If you have an employment question, feel free to contact me, or our Principal, Workplace Relations, Employment & Safety, Kate Walawski. We can assist to help guide you on how to safely navigate redundancy for your employees and avoid an Unfair Dismissal case, or advise you if you have been offered a redundancy (or other employment related questions). You can contact us for a prelim no charge chat on 9389 3999 / [email protected] / [email protected].

Building disputes in Western Australia are increasing at an alarming rate. Last year, over 602 official complaints were filed about construction projects. This trend affects everyone in the industry, especially business owners.

Most disputes involve poor workmanship claims or breach of contract claims. Delay claims and increased cost claims remain problematic areas. These issues can harm reputations and eat into profits.

The construction boom has stretched resources thin, causing material shortages. There's also a shortage of skilled workers in the industry.

As a business owner, protect yourself by knowing your contracts. Familiarise yourself with standard form Master Builders WA or HIA contracts. Focus on sections about extending completion time and accessing retention funds.

Ensure your dispute resolution clause is fit for purpose. Many clauses require parties to attempt self-resolution before other steps. Consider alternatives to compulsory arbitration for small claims or preferences.

Be proactive to avoid disputes. Cullen Macleod's team can help. We can set up systems to prevent disputes and guide you. Contact us for a consultation to protect your business.

Daniel Gill appointed to Wills & Estates Accreditation Advisory Sub-Committee

We're thrilled to announce that our very own Daniel Gill has been formally appointed to the Wills & Estates Accreditation Advisory Sub-committee of the Law Society of Western Australia!

What does this mean?
✅ Daniel will help shape the standards for Specialist Accreditation in Wills & Estates Programme
✅This appointment recognises Daniel's expertise and leadership in the field
✅It reinforces our firm's commitment to excellence in Wills & Estates practice

Daniel's involvement ensures our clients continue to receive top-tier legal advice in Wills & Estates matters, backed by the latest best practice.

Congratulations, Daniel!

Cullen Macleod’s Family Law Team has years of experience helping parents navigate the complexities of separation and divorce, we have seen first-hand the importance of a well-crafted parenting plan. A thoughtful, comprehensive plan can make all the difference in ensuring a smooth co-parenting relationship and, most importantly, supporting the well-being of your children. Here are ten essential tips to consider when creating your parenting plan:

1. Prioritise your children's best interests
The foundation of any effective parenting plan is a focus on what's best for your children. This means setting aside personal conflicts and preferences to create an environment that promotes stability, security, and healthy development. Consider your children's individual needs, personalities, and routines when making decisions.

2. Be specific and detailed
Ambiguity can lead to misunderstandings and conflicts down the road. Be as specific as possible when outlining schedules, responsibilities, and decision-making processes. For example, instead of saying "shared care," specify exact days, times for pick-ups and drop-offs, and how you'll handle schedule changes.

3. Allow for flexibility
While structure is crucial, life is unpredictable. Build in some flexibility to accommodate unexpected events, work schedule changes, or evolving needs of your children as they grow. This might include provisions for trading days or making up missed time.

4. Establish clear communication guidelines
Effective co-parenting relies on good communication. Outline how and when you'll communicate about your children. Will you use a co-parenting app, email, or phone calls? How often will you update each other on important matters? Setting these expectations upfront can prevent many future disagreements.

5. Plan for holidays and special occasions
Holidays and birthdays can be sources of stress if not properly addressed in your parenting plan. Create a detailed holiday schedule that alternates or shares these special times fairly. Don't forget to include school breaks, summer vacations, and other significant events.

6. Define decision-making processes
Clearly outline how you'll make major decisions regarding your children's education, healthcare, religious upbringing, and extracurricular activities. Will you make joint decisions, or will one parent have final say in specific areas? Having this spelled out can prevent major conflicts later.

7. Consider age-appropriate arrangements
Remember that a plan that works for a toddler might not be suitable for a teenager. Create a plan that can evolve as your children grow. For younger children, this might mean more frequent transitions between homes, while older children might prefer longer stretches with each parent.

8. Address financial responsibilities
Money matters can be a significant source of conflict. Clearly outline how you'll handle expenses related to your children, including everyday costs, medical expenses, education, and extracurricular activities. Consider creating a "child support agreement" for child-related expenses if appropriate.

9. Include dispute resolution mechanisms
Even with the best intentions, disagreements can arise. Include a process for resolving disputes, such as consulting a mediator or parenting coordinator before resorting to court intervention. This can save time, money, and stress in the long run.

10. Regularly review and update the plan
A parenting plan should be a living document that evolves with your family's changing needs. Set specific times, perhaps annually or bi-annually, to review and update the plan. This ensures it remains relevant and effective as your children grow and circumstances change.

Creating a comprehensive parenting plan takes time and effort, but remember, the goal is to provide a stable, nurturing environment for your children to thrive, even as your family structure changes. If you're struggling to agree on certain aspects, don't hesitate to seek the help of a family law professional or mediator.

Separation is a significant life decision that can have far-reaching consequences. While it may be the right choice for many, it's crucial to approach this decision with careful consideration. As experienced family lawyers, we've guided numerous clients through this process. Here are five essential factors to contemplate before you separate.

📍Your emotional readiness
Separation is not just a legal process; it's an emotional journey. Before proceeding, ask yourself:

- Are you emotionally prepared for the changes ahead?
- Have you exhausted all options to save your marriage, such as counseling?
- Are you making this decision based on long-term issues rather than temporary emotions?

Remember, separation can be emotionally taxing. Ensure you have a support system in place, whether it's friends, family, or a therapist.

📍The impact on your children
If you have children, their well-being should be a primary concern. Consider:

- How will you explain the separation to your children?
- What parenting arrangement might work best for your family?
- How will you ensure your children's emotional needs are met during this transition?

It's crucial to prioritise your children's needs and work towards a co-parenting relationship that minimises conflict wherever possible.

📍Your financial situation
Separation can have significant financial implications. Before proceeding, take stock of your financial situation:

- What assets and debts do you and your spouse have?
- Can you afford to live independently?
- Will you need to seek spousal maintenance or apply for child support?

Consider consulting with a financial advisor to understand the long-term financial impact of separation.

📍The legal process
Understanding the legal process can help you prepare for what's ahead. Consider:

- Are you aware of the laws that apply to separating couples?
- Do you know what options are available to try to negotiate a settlement, like mediation?
- How would you go about formalising a settlement?

Educating yourself about the legal aspects can help you make informed decisions throughout the process, and we recommend you obtain information about the range of outcomes you can expect as early as possible. Knowledge is power.

📍Your post-separation life
While it may seem distant, it's important to think about your life after separation:

- What are your goals for the future?
- How might your lifestyle change?
- Are there any personal or professional changes you want to make?

Having a vision for your post-separation life can provide motivation and direction during the separation process.

Separation is a complex decision that requires careful consideration of various factors. While these five points are crucial, every situation is unique. If you're contemplating separation and/or divorce, we recommend seeking professional legal advice to discuss your specific circumstances. Our team is here to guide you through this process, ensuring you make informed decisions every step of the way.

Remember, taking the time to carefully consider these factors doesn't mean you're indecisive. Rather, it demonstrates your commitment to making the best decision for yourself and your family. If you have any questions or would like to discuss your situation, don't hesitate to reach out to our team. Schedule a confidential consultation to discuss your unique situation and explore your options.

Changes to employment laws affecting all Australian businesses

The start of the new financial year brought with it a number of important changes to:
-national and Western Australian state minimum
wages
-unfair dismissal regulations
-superannuation
- as well as changes as part of the Closing
Loopholes Laws.

Kate Walawski, our Principal of Workplace Relationships, Employment + Safety, summarises the significant changes that all employers need to be aware of.

It is critical that employers consider the implications of the changes and ensure that their businesses remain compliant with all statutory and regulatory obligations.

Full article: https://www.linkedin.com/pulse/key-employment-law-changes-new-financial-year-update-cullen-macleod-am7oc/?trackingId=sr%2FcngcSTb6Snrmo3Ha0ZQ%3D%3D

Medicinal cannabis in the workplace is a tricky HR topic and an increasing challenge for businesses. Our Head of Workplace Relations, Employment + Safety, Kate Walawski, is one of three industry experts sharing their thoughts on an effective safety focused response. To register for this free webinar, please click on the link below:
https://us02web.zoom.us/meeting/register/tZEqfumhqDksHdQNfoIb0potXTGmQGsy3OAz

We have seen countless disputes that could have been prevented. We have written an article breaking down 5 of most common issues we see and how you might avoid them. Invest 5 minutes in reading our article now to potentially save you a headache later.

https://www.linkedin.com/pulse/5-common-business-disputes-how-avoid-them-cullen-macleod-sgxnc/?trackingId=R5%2BQ17NmGwiZCgx3hoJtOQ%3D%3D

If you are concerned or have some questions about your specific situation, reach out to one of our team today.

Promotion to Family Law Principal - Melissa Milne

Cullen Macleod is delighted to announce the promotion of Melissa Milne to the position of Principal within our Family Law team. Melissa's dedication, expertise, and compassionate approach have made her an invaluable asset to both the firm and clients alike.

Melissa holds a Bachelor of Business (Management) and Bachelor of Laws from Monash University in Victoria. She practiced law in Victoria until relocating to Perth in 2010.

Melissa has a particular interest in child relocation matters, high conflict parenting cases, and property settlement issues.

"Melissa's promotion to Principal reflects her phenomenal commitment to her clients and her outstanding legal skills," said Catriona Macleod, Director of Cullen Macleod. "Her empathetic approach and common sense make her a standout professional in the field of Family Law. We are confident that Melissa will continue to lead with the same dedication and excellence that she has demonstrated throughout her career. Over all the years that I have known her, Melissa has constantly shown empathy and compassion, and balanced that with a practical approach to negotiations and communication that has earned her the respect and trust of her clients and colleagues alike, and gets results."

Please join us in congratulating Melissa on this well-deserved achievement.

On Friday evening, Rick Cullen, Kylie Pritchard and Ross Harrison travelled to the Cowaramup District Social Club to present at an 'after work network' session entitled 'Protecting your Assets - at the beginning, during or at the end of a relationship or life'.

The session started and ended with a drink at the lively club and our team answered lots of questions about wills, binding financial agreements and much more. A informal way to get the answers to all those questions many have been wanting to ask.

If you or anyone you know would like to hear all about how to protect assets, speak to one of our team, they would be happy to have a chat or can come out to your workplace to present to a group.

Call Cullen Macleod Lawyers on 9389 3999 and ask to speak to Kylie Pritchard in our Wills & Succession Planning team or Rebecca Walker in our Family Law team.

The law relating to parenting orders for children whose parents have separated, or are separating, significantly changed on 6 May 2024.

The changes to the Family Law Act impact in WA on parenting orders for parents who were, or are, married, and are separating.

The courts make parenting orders based on what is in the best interests of your child. How that is determined, and the impact it will have, is what has changed.

The changes could have an impact on you and your family if you are in family court proceedings.

Understanding these changes is crucial in preparing for any impact on your approach to your parenting case.

Our family law team are available to talk you through the changes and help you work out what is best for you and your family.

You can also see a summary of the changes here: https://www.fcfcoa.gov.au/news-and-media-centre/fla2023 #:~:text=The%20new%20laws%20will%20make,about%20major%20long%2Dterm%20issues

We are pleased to introduce you to our wills & succession planning team at Cullen Macleod.

Our highly experienced and skilled lawyers can assist you in all aspects of planning for your future. Our team will consider your business, family and personal needs, from creating business structures such as companies and trusts to best protect your assets, Wills to pass your wealth on to those people or organisations who you wish to benefit and enduring powers of attorney and enduring powers of guardianship to assist you if you lose capacity.

We can assist clients across Australia, from complex business planning and high net wealth estates to mums and dads wanting a simpler estate plan.

Speak to any of our team Daniel Gill, Ross Harrison, Kylie Pritchard, Mia Lanigan (nee Threnoworth) or pop in to see us in Nedlands next time you're in the area.

School holidays can create unique obstacles for families dealing with legal issues. Whether dealing with divorce, custody battles, or other family legal matters, the excitement of school holidays can be overshadowed by stress and uncertainty.

Parenting arrangements can become difficult. Approaching these challenges with empathy can help remove tension. Consider exploring alternative plans or sharing holiday moments to ensure children experience the joy of school holidays with all involved, despite underlying legal issues.

Seeking guidance from legal experts can help as they can offer help with managing conflicts, navigating legal intricacies, and facilitating amicable resolutions, enabling families to focus on healing and positively moving forward.

If you require assistance then do not hesitate to reach out to the Cullen Macleod Lawyers Family Law Team on 08 9389 3999.

At Cullen Macleod Lawyers, we have an annual tradition of bringing our current and former staff, friends, and family for a weekend of grape picking, wine tasting, food and fun at our 'Pickers' Weekend'.

We had the perfect weather for a weekend away in the state’s beautiful southwest. The weekend started early for some who took extra leave and joined the team for a walk near Gallows Beach, then a long lazy lunch and wine-tasting at Cullen Wines (Australia) Pty Ltd. This was followed by dinner when joined by the rest of the crew on the deck at Cowaramup Brewing Company.

The next day it was an early start for a few hours of picking the beautiful Cabernet grapes and then a well-earned lunch and wine tasting led by the knowledgeable Gary Berson on the gorgeous verandah of Victory Point Wines.

The weekend culminated with a sit-down dinner, wine and entertainment from a live band, Rick on piano and later joined on guitar with Mark Fletcher for some sing-a-long tunes. This year our very own ‘Cowtown Swifties’ led the group in some timely Taylor Swift songs mixed in with some golden oldies. Thanks Rebecca Walker, Sara Leddin from our team and guest 'swiftie', Cal, for your charming performance.

Thanks to Directors Rick Cullen and Catriona Macleod for giving the staff, ex staff, friends and partners this wonderful opportunity and a fabulous weekend to remember.

Our family lawyer Grace Ritter’s opinion in The West today about the tragedy of the recent deaths in Sydney, the murder charge against a former policeman partner, the impact in the LGBTIQA+ community, and the many layers and faces of domestic violence.

Sydney killings highlight deepest fears of q***r community Over the past few weeks, as the terrible news about the alleged murder of Luke Davies and Jesse Baird has unfolded, my phone has buzzed periodically with updates. Not from news alerts but from friends.

We are in an age where technology challenges between reality and fiction. Earlier this month a multinational corporation was defrauded of millions of dollars through a scam involving deepfake technology that came straight out of Hollywood. This case highlights the continuing sophistication of modern fraud as well as another wake-up call for businesses to continue their cybersecurity measures.

The victim was led to believe they were interacting with colleagues during a video conference call, including the company’s chief financial officer. What is terrifying is that all participants other than the victim were deepfake creations. The experience was so real that following the call, the victim authorised the transfer of $200m Hong Kong dollars to various accounts.

The very technology that we use in today’s business world, now are an avenue to sophisticated cyber threats. It challenges the trust that remote teams place. The lessons that businesses must continue to learn are clear: vigilance, ongoing education, and advanced technology are essential to protect against sophisticated threats of the digital age.

What action you can take:
- Business leaders: regularly review your cybersecurity framework and protocols to ensure they are fit for purpose.
- IT + security teams: prioritise continuous education on the latest cyber threats and defence mechanisms. Develop strategies that include regular security assessments, employee training programs, and incident response plans.
- Employees: stay informed about potential risks. Adhere to business best practice for cybersecurity and question requests for financial transactions or sensitive information.

Everyone needs to stay vigilant, report suspicious activities and commit to a culture of cybersecurity awareness. If you need assistance then please contact Catriona Macleod, Rebecca Conder or Greg Paull.
T: 08 9389 3999
E: [email protected]

New Principal: Wills / Succession Planning

We are happy to announce that Daniel Gill has joined our Commercial & Wills/Succession Planning team as Principal.

Daniel joins us after 16 years with his previous firm as Head of Department – Wills, Probate & Estates, and brings his considerable expertise and experience to the benefit of Cullen Macleod’s clients and colleagues.

We are pleased to welcome Daniel to our expanding Commercial & Wills / Succession planning team.

We will also soon be welcoming another highly experienced solicitor to our team, at which point we will have a ‘Welcome to the Team’ event at our office for an opportunity to come along and meet the expanded team.

In the meantime, if you would like to meet up with Daniel, drop by on a Friday night for a drink, or catch up during the day by contacting Daniel on [email protected].

Reset your life and find love after divorce - 3 day event

We're thrilled to share that Catriona and our Family Law team will be available for an informal chat at this weekend's "Reset your life and find love after divorce" event at the Perth Convention and Exhibition Centre. Our team will be ready to offer guidance, support, and insights into navigating the complexities of family law. Whether you're seeking advice on matters of divorce, parenting, or any family law concerns, we're there for you.

This is a wonderful opportunity to connect with us in a setting that’s all about renewal and making positive changes. If you've been contemplating a fresh start or have legal questions that need answering, our team is eager to meet you. So come along and introduce yourself.

Welcome Mia Lanigan! We are very happy to announce that Mia has joined our Commercial & Wills/Succession Planning team.

With a breadth of experience spanning corporate law in a global law firm to legal investigation and compliance at the Australian Competition and Consumer Commission, and in-house at a State Government energy utility, Mia brings a highly useful skill set and experience to Cullen Macleod and our clients.

Mia will also continue to lecture at the College of Law, including wills and succession planning law.

We warmly welcome Mia to our Commercial & Wills/Succession Planning team.

If you would like to meet Mia, drop by on a Friday night for a drink, or catch up during the day by contacting Mia on [email protected]

For anyone looking to buy or a sell a business, a critical question which may arise is whether or not the parties should enter into a Heads of Agreement prior to preparation of a formal Sale Agreement.

Also known as a “Memorandum of Understanding”, a Heads of Agreement is generally a short document which sets out the key commercial terms of the transaction: such as the price, the parties, the assets included in the sale, and any conditions of the sale.

A key benefit of entering into a Heads of Agreement is that it clearly sets out the key commercial terms agreed by the parties before any discussions or negotiations about the legal terms which govern the transaction take place. In short, it enables the parties to reach an “in principle” agreement prior to entering into a formal, detailed legal contract, giving a level of comfort to the parties that each of them are committed to the deal. This is particularly useful for larger and more complex transactions, or where preliminary agreement is required for Board approval.

As a Heads of Agreement only sets out the key commercial terms, it is usually non-binding and conditional upon the parties entering into a formal Sale Agreement. However, this position will depend on the circumstances and nature of the transaction. Whatever the position (i.e. binding or non-binding) it is critically important that the position is clearly stated in the document to avoid any issues or confusion.

In contrast to a Heads of Agreement a formal Sale Agreement sets out the commercial terms of the transaction and the detailed legal obligations and responsibilities of the parties. If the parties have entered into a Heads of Agreement the Sale Agreement will incorporate these. Once the Sale Agreement is agreed and signed, it becomes a legally binding document.

For any queries or more information do not hesitate to reach out.

We have an opportunity for a senior solicitor to join our Commercial & Succession Planning Team.

You will have a minimum of 5 years PAE + (or equivalent), enjoy (or be willing to learn!) business development, and mentoring junior lawyers.

You will join an industry recognised law practice, have the opportunity to develop your individual skills and experience, and work with excellent lawyers. In addition, we want to hear your ideas and input and have a business-wide history of being open to both. In short, you can have a real impact at Cullen Macleod.

Who we are

We are an 18-lawyer law firm, with 5 specialist areas which gives you the opportunity to collaborate with our other 4 specialist teams (litigation & dispute resolution, property & franchising, and hospitality & liquor licensing, and family law) to develop your practice. We recruit, and retain, high-quality people, give them ample opportunity to flourish, and reward performance, dedication, and a positive attitude.

Why join us?

There are many benefits to working with us!

• We will coach and develop your skills to ensure you will be the best lawyer you can be.
• We have a positive, friendly, and supportive workplace, with a focus on a healthy and happy people – including weekly yoga, fortnightly massages, dog days, extra annual leave Happy Day, vineyard staycations, and many more.
• Fully paid local, interstate, and overseas conference attendance.
• Achievable daily billable target of 5 hours to ensure you can perform at your best for our clients and enjoy your life outside work with friends and family.
• A broad and varied business development programme managed by a BD specialist.
• Well-resourced IT and related systems to allow for seamless flexible working-from-home opportunities.
• On-site parking.

Skills and experience

• At least 5+ years' post admission experience or demonstrated ability to perform at a similarly high level.
• Interest in developing and being apart of an established and respected wills, succession planning and commercial practice.
• Confident to manage files across a wide range of matters.
• Ability to train, supervise and mentor staff.

Please apply with a cover letter and Resume to [email protected] by 31 January 2024

We are filled with immense pride as we recognise Rebecca's 17 years with Cullen Macleod Lawyers. Rebecca's dedication to excellence and commitment to our clients has contributed significantly to the growth and success of our firm.

Join us in congratulating Rebecca on this significant milestone.

From Today (12 Dec 2023) - All Australian Business & Orgs are Legally Required to Take Steps to Prevent Discrimination and Harassment

Today marks a new day as the S*x Discrimination Act now requires all organisations and businesses in Australia (irrespective of size) to take steps to eliminate (as far as possible):

1. discrimination on the grounds of s*x in a work context
2. s*xual harassment in connection with work
3. s*x-based harassment in connection with work
4. conduct creating a workplace environment that is hostile on the grounds of s*x
5. related acts of victimisation.

Employers will be held legally responsible for failing to proactively take steps to prevent unlawful conduct in the workplace, as opposed to only responding after it happens.

This means that employers must put in place policies and procedures to ensure they are actively taking steps to prevent discrimination and harassment.

To find out more information, see the link below:

If you need any help, we have a team of lawyers and consultants (interstate and in WA) who can assist you to draft and put in place the policies and processes that will assist you to comply with the new laws and look after your employees.