The Head Contractor’s Duty of Care.

The Head Contractor’s Duty of Care.

A recent decision of the New South Wales Court of Appeal outlines the head contractor’s duty of care requirements and provides a timely reminder that head contractors cannot reasonably be expected to continuously supervise or intervene in all activities being performed at a work site. The decision of Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77 centres around Mr Murray who was installing a window on a construction site. While on site he fell from a ladder and sustained injury. He alleged that the reason he fell was due to the build-up of dust on the rungs of the ladder which occurred a result of some sanding work being undertaken by another nearby subcontractor.  According to Mr Murray, excessive dust was being distributed because of a fault in the vacuum attached to the sanding machine. Mr Murray commenced proceedings against the head contractor, Sheldon Commercial Interiors, alleging its negligence caused his accident. The NSWCA found that Mr Murray failed to establish any breach of duty. Mr Murray needed to show that the head contractor should have noted that excessive dust was being deposited by sanding in the vicinity of Mr Murray’s work and then done something about it. Mr Murray failed to establish this. Instead, the NSWCA held that the size of the site and the limited time in which the sanding took place were important considerations in determining that a breach of duty of care had not occurred. Head contractors should still always be mindful of their obligations to all of those on site but head contractors cannot be reasonably expected to supervise all subcontractors on...
Lessons for Labour Hire Employers

Lessons for Labour Hire Employers

Two recent court cases have highlighted some of the issues that should be considered when hiring your employees out to third parties. Kool v Adecco Industrial Pty Ltd [2016] FWC 925 Ms Kool was employed by labour hire firm Adecco as a casual and had been on-hired to Nestle for more than two years. Nestle accused Ms Kool of misconduct by engaging in behaviour that was contrary to Nestle’s values.  Nestle advised Adecco that it “no longer required” Ms Kool. Adecco accepted Nestle’s decision and Ms Kool’s assignment with Nestle came to an end. Ms Kool then claimed that she has been unfairly dismissed by Adecco. In response, Adecco argued that she had not been ‘dismissed’ because she was still on Adecco’s books and they were still trying to place her with alternative host employers. Adecco’s alternative argument was that even if her employment had been terminated, the placement at Nestle had ended at Nestle’s initiative and therefore the dismissal was not ‘at the initiative’ of Adecco. The Fair Work Commission rejected both of Addeco’s arguments and found that the situation did amount to unfair dismissal under the Fair Work Act because: Ms Kool had worked the equivalent of full-time hours during her placement at Nestle; Adecco’s work with Nestle did not come to an end. Adecco continued to place employees with Nestle. It was only when Nestle alleged misconduct against Ms Kool that her services were withdrawn; Following Ms Kool’s placement at Nestle ending, Adecco offered Ms Kool very little alternative work and the work it did offer was sporadic and uncertain whereas her work at Nestle was...
Shareholder Agreements – What’s in it for me?

Shareholder Agreements – What’s in it for me?

Starting a new business or purchasing an existing business is an attractive and exciting prospect for many people. While the focus of any business plan tends to be on the positive potential for the business, it is also important to plan for any unexpected events that may occur. What if, for example: A shareholder wants to leave the business; A shareholder is unable to contribute to the business due to injury or death; The shareholders are unable to agree on vital issues. These things can and do happen and so it is always important to discuss and agree a plan of action for these types of events before jumping into any business. One very effective way of creating some certainty for these uncertain events is to have a shareholder’s agreement in place. A shareholder’s agreement regulates the rights and obligations of the shareholders and it can help avoid costly court litigation which may result when things don’t go to plan. What’s in a shareholder’s agreement? Every business is different and so each shareholder’s agreement should be tailored to the specific needs of the business and the individual shareholders. At minimum, your shareholder’s agreement should include the following basic provisions: Alternative Dispute Resolution. This usually requires the shareholders to try and resolve their disputes through an alternative dispute resolution process before launching into costly and protracted court litigation. This may include mediation, arbitration or conciliation. Deadlock Provisions. This outlines what procedures will be used to resolve situations when shareholders cannot agree upon major business issues. Pre-Emptive Rights. Pre-emptive rights impose certain restrictions on the transfer of shares. Pre-emptive rights may...