Dual “Notifiable Incident” Obligations in Building Industry

THE Queensland Building and Construction Commission Act 1991 (QBCC Act) and Work Health and Safety Act 2011 (WHS Act) define “notifiable incidents” as the death or serious injury or illness of a person. Under the QBCC Act, it includes an incident that exposes a person to a risk of serious injury or illness. Under the WHS Act, it includes a “dangerous incident”. The QBCC Act requires licensees to report notifiable incidents to the Commission and the WHS Act requires a “person who conducts a business or undertaking” to report them to WHS Queensland. A QBCC licensee must also notify the Commission, in certain circumstances, if they become aware of breaches of the WHS Act.

Due to the rise in safety incidents relating to the use of non-conforming building products, the QBCC also now obligates “a person in the chain of responsibility for a building product” to report certain information and incidents involving non-conforming products.

The QBCC and WHS obligations are separate, but often overlap. If you have dual obligations, you need to comply with both.

QBCC and WHS work closely on safety matters, so they can identify discrepancies between incident reporting data. This recently led the QBCC to issue a media release stating “QBCC is now actively assessing which Queensland licensees could be failing to report notifiable incidents”. Breaches may result in penalties.

Additional obligations exist under the Electrical Safety Regulation 2013, which are not covered here.

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.

New Scheme for Financial Services & Product Disputes

MOST individuals and small businesses are consumers of financial services and products provided by banks, insurers or other providers. Until recently, complaints regarding unfair treatment or products were lodged with one of the following:

  1. Financial Ombudsman Service (FIO);
  2. Credit and Investments Ombudsman (CIO); or
  3. Superannuation Complaints Tribunal (SCT).

Since November 1, these complaints are no longer lodged with FIO, CIO and SCT because these bodies have been replaced by the Australian Financial Complaints Authority (AFCA). AFCA provides a single, external dispute resolution (EDR) scheme for consumers and small business to attempt to resolve complaints about financial service products.

The AFCA’s EDR service is free and provides a dispute resolution alternative to court action. The AFCA’s approach to complaints appears to follow a three-step process:

  1. Encouraging the provider and consumer to resolve the dispute directly;
  2. Working with the parties through methods such as conciliation and negotiation; and
  3. If that fails, making a determination (which can include “remedies” such as compensation, varying terms of a financial contracts, forgiveness/variations of a debt and many more).

If a complaint progresses to a determination by AFCA, the complaining party will have a choice whether to accept the determination (which then becomes binding) or to reject the determination and pursue court action. The AFCA service is not mandatory; consider what is right for your circumstances.

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.

Are you Breaching Pool Safety Laws?

DID you purchase a “portable” pool/spa to help get you through summer? If so, Queensland’s pool safety laws under the Building Act 1975 (Act) may apply.

If the structure is capable of being filled with water to a depth of 300mm or more, has a volume of no more than 2000 litres and has no filtration system, then it may be captured by the Act. Many of the “portable” pools/spas sold will meet this description.

If the pool is located on “regulated land” as defined under the Act, it is a “regulated pool” and the owner has many responsibilities, including:

  • Registering it with the Queensland Building and Construction Commission, who can issue on-the-spot fines for failure to register;
  • Complying with the pool safety standard and keeping barriers in good condition. The standard covers many aspects including height and strength of barriers, mandatory non-climbable zones, gates and latches (exemption from part(s) of the standard is possible in cases of impracticality and disability if approved by local council).

Failure to comply not only creates unnecessary safety risks, but also leaves owners open to receiving fines or court imposed penalties (which can be significant). You can engage a licenced pool safety inspector to confirm whether your pool/ spa is captured by the Act and to help you comply with Queensland’s pool safety laws.

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.

Have you Checked on your PPSR Registrations?

I AM pleased to bring you the first publication of Keeping it Legal, a weekly article on a range of legal topics relevant to individuals and businesses.

I am grateful to Walker Pender Group Lawyers and The Queensland Times for supporting this project, aimed at adding value to the community through sharing of legal information. I invite readers to email me with comments or topic requests.

Today is a reminder for those with registered security interests on the Personal Property Securities Register (PPSR).

The PPSR is a national register where individuals and businesses record security interests over personal property.

It can also be searched by consumers before buying certain goods to ensure they are debt-free and safe from repossession.

The PPSR started practical operation on January 30, 2012, making January 30, 2019, its seventh anniversary.

Many registrations are taken out for seven years and so those taken out at the start of the register will soon expire.

If you or your business registered an interest at the commencement of the register, your registration may well soon expire.

You can access a “Registrations due to expire report” for free from the PPSR website to check your registration expiry dates.

Also ensure you have an effective warning system to prompt you to renew your registrations before they expire.

If a registration lapses, not only is the security lost, but where multiple registrations exist, you may lose priority ranking when you re-register.

Until next week, Keep it Legal!

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.

ATO Warns of Scammers Impersonating Tax Agents

Pender Accounting Group are a registered tax agent and we take our business seriously.

The Australian Taxation Office have been receiving and increasing number of reports of a new scam method. If you have received one of these calls please contact our office or the ATO immediately.

ATO warns of scammers impersonating tax agents

The ATO warns taxpayers to be aware of a phone scam intimidating people into paying fake tax debts. It is a new approach where the scammers impersonate registered tax agents. Therefore, gaining their trust and access to their details.

Recently the ATO have received an alarming number of reports advising of calls received from scammers. The ATO have since identified that scammers coerce the victim into revealing their agent’s name or initiate a three-way conversation between the scammer, the victim and another scammer impersonating the victim’s registered agent. 

In a recent case, a victim withdrew thousands of dollars in cash and deposited it into a Bitcoin ATM, fearing police had a warrant out for his arrest.

The ATO says taxpayers can verify suspicious phone calls by calling 1800 008 540.

No business will request payments via Bitcoin, iTunes vouchers, store gift cards or Western Union.

If you are unsure, take the details of the call and the caller and hang up. Contact Pender Accounting Group on 07 3050 7142 or the ATO on 1800 008 540 and confirm with them the legitimacy of the call.

This also serves as a reminder for any calls your receive from banking institutions, communication companies i.e Telstra, charities, power suppliers, etc. If you are unsure hang up the phone.

Recognising it Takes A Village

In business, what is your most important asset?

Over the years I have attended many seminars and business meetings to try to find the ‘key’ which unlocks the gateway to success. I know that seminar organisers and every presenter I’ve ever listened to had good intentions at heart. For me, it started with Peter Drucker and the theory that management should be decentralised; that people are your greatest asset in business. Countless business managers have focused on these philosophies and been successful. Drucker was a respected leading management theorist and consultant. But something was and still is amiss.

I am a woman, and I always sought to identify myself as a success using tools identified at these meetings. I worked hard, studied, and read books including ‘How to be an assertive not an aggressive woman in business”. And if you ever find a copy you’ll see that it recommended that woman not wear large earrings as it intimidated men. Many ideas; some not quite as successful as others.

I have been studying these categories of books and going to seminars year after year after year. The books and speakers laud success. Success is ‘never giving up’, ‘believing in yourself’ and ‘studying hard’. More recently the tone is to recognise and learn from your failures and then ‘after the darkest night comes the brightest morning’. All true and all motivational to a point. Returning to work, the difficulty of leading change becomes a reality when we recognise not everyone we work with have the same goals in life. Some want to succeed in weekend sport, some in a hobby, and some in being great parents. Yet as someone who wants to see a business succeed I question why we keep repeating the same actions. The same seminars minimally altered using slightly different words and thereby only slightly different management directions. In the 80’s and 90’s the goal was focused on winning at all costs, now, it’s all about winning but doing it drinking a kale smoothie.

It seems to me the world has been changing rapidly; now at an exponential rate. In days gone by we attended a seminar with the expectation we would lead the business using the acquired knowledge into a new decade or a new millennium. We recognised it takes time. Now we expect to implement and effect change the minute we return to our offices, only to be confronted with the same barriers which existed thirty years ago. Except now an intense frustration sets in because change doesn’t happen immediately.

What is the most important asset in your business?

Maybe the understanding that you need a village to help grow a business, the same as you need a village to help raise a balanced, intelligent child. In business we tend to believe all changes need to be internal. We don’t have the right staff, the right equipment, the right location, the right marketing program. Maybe we should be questioning our ingrained belief that “change” will solve a problem. Maybe we should trust ourselves in putting in place a network of people and support structures that help us see the alternative points of view when making our business decisions and sticking with those people, through the highs and low of the journey.

Who do we need in business?

An accountant, a lawyer, marketing consultant and financier? Maybe we should stick to the same group of external advisors with the experience to help, and over time develop a long-standing trust and belief in the skills shaped together. Too often businesses move between consultants hoping the next will have the miracle solution. The one thing I have learned attending all these seminars is that successful people and businesses have people around them that have stuck with them for many years. They have been loyal, dedicated and totally focused on the goal together – a village of concurring individuals. And over time a trust is developed, a mutual respect of each other. There is no giving up on an individual when someone makes a bad move, just a concentration of friendship, support and like-mindedness in achieving a positive result. When you look for a ‘new team’ to put together, think just as seriously about your external consultants as you do about your internal staff. Focus on developing a partnership for life.

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.

Lawyer Says Positive Leadership Needed Now

Gerard Pender is a well-known local figure in the Ipswich community. He is a well-regarded lawyer and community member, and one of the quiet achievers.

Mr Pender has made a significant contribution to the life and wellbeing of Ipswich City and he picked up the 2017 Business Person of the Year at the Ipswich Chamber of Commerce Business Awards.

He has brought leadership to legal firm Walker Pender Group and is involved in local community organisations. As senior director of Walker Pender Group, he has been in leadership over many years.

Mr Pender said he was delighted to be nominated and win the 2017 award. “It is pleasing to win. It is good to be recognised,” Mr Pender said. He said if you are going to make yourself a part of the community, you must get involved.

The Walker Pender Group was formed in 1988. It grew from two independent firms, Walker and Walker, founded in 1896, and Pender and Pender, founded in 1874. Mr Pender has been a solicitor since 1979 and was in partnership with his father before taking on a role as partner in the Walker Pender Group.

“Ipswich is an old city and it is pleasing to see that it is growing in a variety of ways, but it is good to see it maintains history,” Mr Pender said. Mr Pender said he was aware of the challenges facing business people daily. “I believe it is important to take a long term view. That is hard when you are starting up, but the challenge is that you can make decisions based on the short term that can be unwise,” he said. “You have to do your homework, you must know your industry. There is no doubt that it is much harder these days to run your own business.”.

He cites one of the major issues facing the industry is digital disruption. “It is about keeping your eye on the changes that are coming in your own industry. You cannot ignore it. Uncertainty is greater than ever, but businesses have to be flexible. Plan ahead and see the challenges as opportunities,” Mr Pender said.

He fears many business people try to do too much and don’t seekout professional assistance. “It is so important to have the right advice from a legal and financial perspective. Ensure you are meeting the legal requirements and managing finances. Getting advice is so important,” Mr Pender said.

Mr Pender is hopeful of a bright future for Ipswich. “I am always optimistic – we have such a growth in population and the economy, this is a good time to grow a business,” he said he hopes the new administrator will provide good leadership.

“The CBD is vital. It needs to be done.I have an investment in as much as we are tenants on the mall, but it has to be addressed quickly,” Mr Pender said. “All those who provide leadership in the city, whether that is in politics, education, business or the community, we must be positive and take our role.”

Do I Really Need a Will and EPOA?

How often have you said that to yourself?

I have often heard friends, family and clients say this to me – I have been discussing a Will and EPOA for a while now.

So why is it so important?

A couple of years ago I was working in a law office, seeing clients about their Wills. One Monday morning a woman came into the office early. She didn’t have an appointment and was clearly distressed. Her ex-husband had been rushed to hospital on the weekend after he had collapsed. Even though she had been separated from him for many years, friends contacted her. They had two children together and while the divorce had been unsavoury the friendship after divorce had remained.

Even though she lived in her own home, she still visited the substantial family home often. Her ex had been very successful in his career and had never spared the best in the home, the cars and boats and other toys. He had a substantial amount of superannuation and had been preparing himself for many years of international travel.

But here we were….a very well dressed woman, in tears, frenetically distressed and constantly on the phone talking to her sons and other relatives. They did not know what to do to fix the situation. No one had expected this. And like so many times…. that nearly everyone can relate to – there is a void, an unknown as to what the future holds……and it is very unsettling.

Her ex-husband had been diagnosed with a tumour in the brain. The doctors had already operated to stop the bleeding which had caused the collapse, but he needed another surgery to remove the mass in his brain. Regardless as to how the surgery progressed he would need to be placed into a facility for extensive rehabilitation or at worst a hospice to die. The doctors had asked the family if they had an enduring power of attorney, a requirement of both the hospital and the rehabilitation facility. No he did not have an EPOA. And of course the subsequent question came; does your ex-husband have a Will? No. Heart sinks, panic sets in.

Our office was able to help this client by travelling to the hospital and taking instructions for both a Will and an Enduring Power of Attorney….but it was highly stressful for the family. There was uncertainty as to how to care for him if they (his family) were not allowed to be involved in either his financial and health decisions. The doctor had mentioned he could lose his capacity within days if the surgery went badly meaning he would have to rely on others, not family to make decisions for him using assets which he would have wanted to pass to his sons.

Why make a Will and EPOA?
  1. Your assets are passed to those individuals you chose
  2. You have control
  3. You can nominate an executor and guardian you want
When to make a Will and EPOA?
  1. When you turn 18, marry, separate, divorce
  2. Upon buying your first property
  3. When you have your first child
  4. And other important life decisions

and remember, young people die too, sometimes with superannuation and death benefits!

Check both annually and if necessary replace your Will every two years.

To organise your Will and EPOA or to make changes to your current Will and EPOA, contact our office and make an appointment with Gerard or one of our other experienced Solicitors.

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.