ByLawyers News and Updates

Employment law publication – FED

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The Employment Law publication has been extensively reviewed and enhanced. This work is part of By Lawyers continual commitment to updating and enhancing our publications.

Key components of the Employment Law publication – the matter plan, commentary and 101 Employment Law Answers reference materials – have been re-organised and augmented.

Matter plan

The matter plan has been reordered to:

  • better reflect the distinction between matters relating to employment agreements and employment disputes;
  • separate the content – both commentary and precedents – on employment agreements and non-employment agreements, such as independent contractor agreements;
  • add a new dedicated folder for the important content on workplace bullying.

Commentary

Updates include the following:

  • Getting the matter underway – initial consideration of employment status;
  • Awards –  expanded discussion of applicability and effect of awards;
  • Coverage of The National Employment Standards (NES) and a link to the Fair Work Ombudsman’s new Small Business Employer Advisory Service;
  • The new provisions for casual conversion;
  • Other rights and entitlements – additional commentary on children in the workplace, overtime, vehicles, deductions, access to records and employers in liquidation;
  • Employment agreements – considerations for negotiating and documenting terms, with a link to the Commonwealth Government’s helpful Employment contract tool;
  • Termination of employment, including when it happens during workers compensation claims;
  • Redundancy – entitlement under the NES and the connection to unfair dismissal;
  • Unfair dismissal claims – coverage of all relevant considerations, including who is protected, the small business exception, high-income threshold, what the Fair Work Commission considers, the application and response, the claims procedure, conciliation, hearings and conferences, remedies and costs orders;
  • General protections claims – coverage of adverse action, discrimination, other protections and sham contracts; and
  • Dedicated commentary on unlawful termination claims.

The comprehensive History of legislative changes has been relocated to 101 Employment Law Answers. This will assist when the rights of a client need to be determined as at a certain prior date.

101 Employment Law Answers

This handy reference material has received a comprehensive revamp that is a precursor to a more detailed review. As with all By Lawyers reference materials 101 Employment Law Answers provides relevant and up-to-date case law summaries and links to legislation. It covers such topics as leave entitlements, the multi-indicia test, abandonment, non-solicitation, redundancy entitlement, and unfair dismissal.

Working order condition

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By Russell Cocks

First published in the Law Institute Journal
A purchaser pursuant to a contract of sale of land may sometimes request that a ‘working order’ condition be added to the contract

Parties to a contract of sale of land are free to negotiate the terms of their contract and include whatever conditions they agree to. In the context of the standard contract of sale of land, such an agreement will be recorded by way of a Special Condition added to the 28 General Conditions. Such Special Conditions usually provide that all fittings, fixtures and chattels included in the sale are to be in working order as at the date of settlement. The focus of the purchaser is usually on such items as heating and cooling equipment, hot water services, swimming pool equipment and even stoves and lighting.

Because there is no General Condition applicable to this situation, the wording used often varies between contracts and the first difficulty is to determine the exact meaning and application of the Special Condition. No Court has had cause to interpret such a Special Condition, so no assistance can be gained from decided cases and as Working Order conditions are often drafted by estate agents on an ad hoc basis, interpretation is often a difficult task.

Such Special Conditions effectively seek to amend General Condition 24 of the standard contract, which provides that the vendor is obliged to deliver the property (which includes fittings & fixtures and arguably includes the chattels listed in the contract) to the purchaser at settlement in the same condition that it was in on the day of sale, fair wear and tear excepted. A Working Order Special Condition seeks to amend this general condition in two ways:

  1. General Condition 24 does NOT require the vendor to improve the property after contract, merely maintain it. Something that was not working on the day of sale does not have to be working at settlement, as it complies with General Condition 24 by being in the same condition at settlement as it was upon sale.

A Working Order Special Condition will require the vendor to improve an item that was not working on the day of sale, unless the vendor specifically excludes that item. Thus, an air conditioning unit that was not working on the day of sale must be repaired (or replaced) by the vendor prior to settlement, unless the vendor specifically excludes that unit from the Working Order Special Condition.

  1. The ‘fair wear & tear’ exception in General Condition 24 will be overridden by a Working Order Special Condition, such that the vendor will have an absolute obligation to have all aspects of the property in working order at settlement, irrespective of the cause of the deterioration. An air conditioning unit that was working at contract but stops working before settlement is an example of fair wear and tear, but under a Working Order Special Condition there is usually no provision for fair wear and tear and the vendor would be obliged to repair or replace the air conditioning unit prior to settlement.

Consequences of Breach

General Condition 24(a) provides a limited right to compensation for breach, but that right relates to a breach flowing from a failure to deliver the property in a significant sense, not the breach of a relatively insignificant provision such as a Working Order condition. (see April 2019 Property column) Therefore, the purchaser’s remedy for a breach of a Working Order condition is to rely on common law rights flowing from the breach and to sue the vendor AFTER settlement for consequential loss. There is certainly nothing in the standard contract that will allow the purchaser to refuse to settle for breach of a Working Order condition, or to claim a reduction in the purchase price. Even if the Working Order condition is framed as a warranty by the vendor, the common law remedy for breach of warranty is by way of damages to be pursued after settlement.

In those circumstances, a Working Order condition may be more trouble than it is worth. It reflects an unrealistic purchaser expectation that a second-hand property will be in an as-new condition at settlement and it simply creates disputation at the time-poor end of the transaction. Given that the purchaser’s right is limited to proceedings after settlement, the prospect of a pyrrhic victory looms large.

Conveyancing needs to be a smooth process, for both the clients and their representatives. Adding additional speedbumps to that process is not in the interest of either the clients or their representatives.

Tip Box

•Working Order conditions may be added to contracts

•Vendor may need to improve the property

•Purchaser can only sue after settlement

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