Legal Service

Archive for May, 2009

Creative Contracts needed if – or when – new Agency rules arrive

In May 2008, the Government agreed with the TUC and the CBI to drop its resistance to the proposed EU Agency Workers Directive (AWD), providing that it gave agency workers the right to ‘equal treatment’ (in other words, basic pay) after 12 weeks on an assignment. In effect, its support was conditional on being allowed to continue the UK’s opt-out (probably in a slightly more limited form) under the working time directive.

The UK proposal was broadly agreed at the European Council of Ministers on 9th June but it’s unlikely that any implementing legislation will take effect until late 2010.

What new rights would agency workers receive?

If the EU adopts the directive, agency workers would, from week 12, be entitled to the same basic pay as comparable permanent employees. Other benefits, such as share option schemes, company sick pay and the right to join an occupational pension scheme, are not included.

Who would be a comparator?

It may prove difficult to identify a comparable permanent employee. Agency workers often do tasks that the permanent workforce is not available or qualified to perform. The legislation will have to solve these “no obvious comparator” problems because there are no plans to include hypothetical comparators. It remains to be seen what basic pay a worker with no comparator will be entitled to.

Will any temps be excluded?

The directive is vague on whether contractors – individual workers who supply their services through limited companies – will be entitled to the new rights. But it is likely to allow countries to exclude agency workers employed, and paid between assignments, by a staffing company.

Many agencies may adopt this model or engage their agency workers via so-called umbrella companies to avoid the legislation. There may be some debate about whether “minimum annual hours” contracts should fall within this exclusion. If this does not apply in the UK, chaos may ensue, because any organisation – not only staffing companies – seconding employees to end-users would be caught.

Which employer will be liable for breaches?

The duty to comply with the legislation is likely to fall on staffing companies rather than end-user organisations. Staffing companies will need full information from end-users about comparable permanent employees’ pay to fulfil their obligations.

Business Activity Statements (BAS) are used by business’s to report and pay a number of tax obligations, including GST, Pay As You Go (PAYG) instalments, PAYG withholding and Fringe Benefits Tax. This is the ATO’s way of combining a range of taxes into one statement to make it easier for you to collect and report information and monies that are due to the ATO, making sure that none are forgotten. Promote your business today with custom silicone wristbands as part of marketing program.

The ATO will generally issue your activity statement around 2 weeks before the end of your reporting period. It will need to be completed and lodged by the due date which is set by the ATO, and any amounts owing will also need to be paid. It is important to keep a copy of your activity statement and the records used in the preparation of it for five years in case the ATO have any enquiries or choose to carry out an audit on your business and its books.

You activity statement is personalised to your situation and if your business has previously lodged a Business Activity Statement subsequent statements will include any options that you have previously included. Generally it will show the items that you need to report against, which could include:
• Goods and Services Tax (GST)
• PAYG Instalments
• PAYG Withholding
• Fringe Benefits Tax (FBT)
• Luxury Car Tax (LCT), and
• Fuel tax credits.

There are a number of ways that you can lodge your BAS. It can be lodged online, through your accountant, via mail or over the phone. If your BAS is not lodged on time you may be subject to a failure to lodge penalty (FTL). If you are late in lodging your BAS, for every 28 day period (or part of) that you failed to lodge you can be charged $110; however, you can not incur charges that exceed $550. NB: the penalty is x2 if your business turns over more than $1 million but less than $20 million, and x5 if you turnover more than $20 million.

If the BAS you submit contains information that is not correct, the least you will be charged – in the case of a genuine mistake, is general interest on the underpaid tax or extra credit received. If however, the mistake was attributable to carelessness or purposefully ignoring the law, you will be charged a penalty based on a percentage of the shortfall amount in question – the exact percentage charged will be dependent on the reason for the incorrect amount.

Important Dates:
You can lodge your BAS either monthly, quarterly, or annually. The following is important dates you need to know in relation to the lodgement and payment of your BAS:

• Monthly: The 21st of every month for the period just gone.
• Quarterly: The 28th of the following months – October, February, April, and July. (In the case of a lodgement/payment being due on a weekend or public holiday, it is due by the next business day.)
• Annually: (pertaining to GST Return): Is sent out after the fourth quarter BAS, and needs to be lodged by either the 28 February, or before your yearly income tax return is due, whatever comes first.

Refunds:
The usual outcome of a BAS being processed is either a refund (from the ATO), or you will owe them money (in relation to your tax collections). When it comes to your refund, sometimes the ATO will keep some or all of it. Their basis for this can include:

• You have a previous outstanding tax debt owing to the ATO,
• Information provided in your BAS needs clarifying,
• You failed to nominate a bank for the payment to go to, or the information you gave the ATO regarding that account was incorrect,
• You forgot to lodge one of your BAS, etc.

In order to avoid late or incorrect lodgment and to ensure that you are getting the maximum tax that is legally due to you it is recommended that you have an accountant or tax agent prepare and submit your Business Activity Statements. This also gives you more time to worry about the day-to-day running and growth of your business.

Should you have any queries, require assistance with your Business Activity Statement or would like more information please contact The Quinn Group on 1300 QUINNS or click here to submit an online enquiry.

If you’ve been victimized in the work place, you may very well feel alone and helpless. When times are tough as they are now, you may feel grateful to have any job at all and hesitate to make waves and risk losing your position. Work place crimes are some of the most intimidating events imaginable, especially if you are being victimized by one of your superiors. However, you should know that there are great labor lawyers out there who can help you to correct a situation, handle disputes, or receive compensation if you’ve been discriminated against. Here’s how to choose the right labor lawyer for you.

Where to Look

The internet is always a great place to start. There is always more information contained on a website than you could ever hope to find in a Yellow Pages advertisement. Enter the words “labor lawyer” along with your state or city in a search engine and see what comes up. Visit each law firm’s web site and see what they have to offer.

What to Look For

If you have a leaky pipe in your home, it doesn’t make sense to call in a carpenter to fix it. Just as all contractors are not alike, not all lawyers are alike. When it comes to resolving problems in the workplace, you don’t want to use a family law attorney or a lawyer who “specializes” in a variety of different kinds of law: you want a labor attorney.

The focus of an excellent attorney’s practice will be labor and labor alone. Within this category, the firm should be experienced in:

– Age Discrimination
– Gender Discrimination
– Race Discrimination
– Disability Discrimination
– Religious Discrimination
– Retaliation
– Whistleblower
– Family Medical Leave Act
– And a host of other work-related areas including wrongful discharge and breach of contract.

What to Do Next

Once you have a list of the best lawyers in town, it’s time to do some additional research. You may consider asking friends, coworkers, and family members if they have had any experience with any of the lawyers on your list. A good reference from a trusted person is a great place to start. You will also want to check all of the lawyers’ status with the Bar Association in your state.

The Final Step

Once you have narrowed your list further, set up consultations with each attorney and get a feel for him and his office. Are they solicitous of your needs? Do they return your phone calls promptly? Do you like the lawyer’s personality and feel he is someone you can trust? It is essential that you feel comfortable with the labor lawyer of your choice.

In every business, there comes a time when it is necessary to terminate a person’s employment. As this is not a pleasant prospect for either the employer or the employee, it should not be done thoughtlessly. Even when a person is being fired from their job, they deserve to be treated with respect and dignity.

In many instances, even if you believe it is obvious to an employee why they are being fired, it might not be as clear to them. With the exception of the most extreme cases, it is much better to inform them of your decision and explain your reasons, rather than simply having them presented with a notice of termination. In most cases, you can be both firm and kind when you are letting an employee know that they are being terminated.

In instances where you are terminating a person’s employment due to some type of illegal activity on their part, it is a good idea to inform them if you plan to take legal action. For example, if they have stolen something from your company, it is wise to terminate their employment as soon as you possibly can.

If you are in the position of needing to terminate a person from their job when they have not been at any fault, a frank discussion should be in order. For example, if your company needs to downsize by lowering its number of employees, they should not be in the position of feeling as if they did something wrong. In other cases, such as if they have been unable or unwilling to perform their job to meet your reasonable expectations; these facts should be made clear to them. It may have a significant impact on whether or not they will attempt to secure similar employment with another company; and it can also have a very strong effect on whether or not they are successful at doing so. If their work has not been up to par, it is in their best interests as well as yours to let them know the facts.

Sometimes it is necessary to terminate an employee due to extreme friction in the workplace. If the employee is constantly having personality-clashes with your other workers, it can make the workplace very uncomfortable for everyone concerned, as well as lowering other employees’ ability to conduct their own jobs properly. If you have tried to resolve this type of difficulty with your employee and have not been successful, terminating them may be the only reasonable solution.

The Florida Association of Criminal Defense Lawyers, based in Tallahassee, regulates the functioning of criminal lawyers in Florida. Founded in 1988, it has nearly 1,500 members. Its mission statement, according to its official website www.facdl.org, lists five important objectives, of which two are of great importance to consumers. They are: “To improve the criminal justice system at the judicial, legislative and executive levels” and “To promote the protection of the rights of individuals.” FACDL is the state organ of the National Association Criminal Defense Lawyers, whose Official website is www.nacdl.org.

Usually people imagine a criminal lawyer to be a professional involved in highly dramatic situations in courtrooms. However, this is only one aspect of their work. A criminal lawyer may spend one day with the client discussing the legal problem. He may spend another day in the study [library or a computer terminal] doing research on relevant points of law. He may spend yet another day in trial practice, actually pleading before the judge in court. Sometimes, he may also be visiting the scene of the crime.

Most criminal lawyers spend hours researching and developing legal reports and documents. Though the advantages of information and communication technology are immense, there is a downside too, particularly in relation to cyber and transnational crimes. This means that today’s criminal lawyers need to be equipped with the latest methods to handle these issues. In the US, there have always been excellent facilities for continuing legal education programs. The Florida Association of Criminal Defense Lawyers offers regular programs for its members.