Knowledge Centre

3 min read

A bold vision for a new standard of excellence in both client and staff experience in the law has been realised with the creation of Better Lawyers Group, a new home and support network for innovative firms and individuals who want to push past outdated beliefs stifling the profession.

Managing Director Peta Gray said she has always been driven by the belief things can be done better and wanted to make a positive impact on the legal industry beyond her own multi-award winning firm, Enterprise Legal.

Tired of hearing ‘it’s always been that way’ or ‘that’s just how it’s done’, in 2017 at 27 years of age she co-founded Enterprise Legal and worked to redefine what’s possible in a regional law firm, from embracing a predominantly fixed fee structure to offering genuine wellness and flexibility options for staff.

“It’s one thing to say it can be done differently; no one believed us until we did it. Firms in our region did not think that fixed-fee billing could work until we did it. We absolutely smashed it out of the ballpark in those first 18 months,” Ms Gray said.

“I felt like we had conquered a lot, we’re an option that people can use if they want a different approach to legal services or if they want to work in a different law firm to other traditional firms, but it felt like a small impact. We’re one firm, so I think for the last few years it’s been apparent to me that to spread that impact, we need to go bigger.”

After waiting for the right firm to acquire as a foundation brand under her Better Lawyers Group umbrella, Ms Gray said she was excited to announce alongside her close colleague Adair Donaldson, that his firm Donaldson Law had joined the Better Lawyers fold.

She said both businesses had proven it’s possible to adopt modern and innovative practices, policies and incentives usually associated with top-tier capital city firms, in a smaller and regional setting.

“I can’t think of a better firm than Donaldson Law to be the first firm to join with Enterprise Legal to be the founding brands, they’re so aligned,” Ms Gray said.

“The Better Lawyers Group is a plan I’ve had for years and I was waiting for the right firm to become available - it has the ability to be very impactful within the legal sector. Donaldson Law, who’s already had all those impacts under Adair, is perfect. That is exactly aligned in terms of what we want.”

Adair Donaldson said from his point of view, the sale was a “perfect fit”.
Donaldson Law specialises in abuse claims and landholder compensation cases, with a focus on a trauma-informed approach to achieving out of court solutions whenever possible.

“We always had a vision when we created Donaldson Law that we wanted to be doing law differently,” Mr Donaldson said.

“We wanted to be innovative, we didn’t want to be like any other law firm.”

He said while many personal injury firms talked about being “trauma informed”, Donaldson Law walked the walk with an approach which prioritised the needs of particularly vulnerable clients.

"Based in regional Queensland, we developed a national practice here where we have been at the forefront of issues involving abuse in the Australian Defence Force, advocating for landholders impacted by PFAS contamination and land resumptions,” he said.

Practice Manager and wife Samantha Donaldson said while Donaldson Law had been approached by other firms, selling to Better Lawyers Group under Peta Gray’s leadership offered the best outcome for their staff and clients.

“We are entrusting this firm that we’ve poured our heart and soul into, to Peta,” Samantha said.

“We wanted it to have longevity and be successful, and with Peta all those things align. Finding any lawyer who is both an extremely knowledgeable and excellent lawyer but also a good manager of a business and a law firm - to get those two skills in one person is really rare.”

With Mr Donaldson looking to take on new projects including mediation work and education and advocacy around gendered violence, he said he was ready for someone else to take Donaldson Law to “the next level”.

“More than anything we wanted not only a safe place for our clients, a place where our clients were going to be looked after because they’re the most vulnerable people, we wanted somewhere that understood trauma, someone who got what we were trying to achieve,” Mr Donaldson said.

“We wanted to make sure that our staff were going to a place where they would be respected. We wanted that legacy to live on and that meant finding someone with the same values. I’m a huge fan of Peta. Words I’d use to describe her are courageous, innovative, assertive, book smart, street smart, go-getter, fearless.”

Mr Donaldson said he still reflects on the first time the pair met for coffee in Toowoomba, where they are both proudly based.

“For someone 27 years of age, a young mum with a son who’d just turned one, to take that risk and go out by herself - that was wow,” he said.

“I’ve watched her, and we’ve watched each other as close colleagues, because it’s tough being in business. Very few people these days want to take the risk of going and creating their own business, so for someone to go and do that they deserve tremendous respect.”

Those risks are another challenge Peta Gray wants to help rural and regional solicitors overcome, by tapping into the Better Lawyers Group’s collective resources and knowledge base.

“The long term vision for Better Lawyers Group is that we can act as a network,” she said.

“You don’t even necessarily have to be a fully-owned brand under it, my long term goal is to offer a network of support to regional and rural firms so if you do want to go back to your home town and start a firm, but you don’t know the business side of how to do that, they’re the kinds of things you can tap into as part of the Better Lawyers Group.”

Ms Gray said local solicitors could refer clients to Better Lawyers Group for larger matters, without the risk of losing those clients and all their business to capital city firms.

“That’s getting better outcomes for everyone, because we can’t have the only people doing law being people in metro areas, but it’s trending towards that,” she said.

“The message is absolutely, you can do it differently. Don’t be disillusioned, look around. It is easier now than when I did it 10 years ago and when Adair did it 20 years ago but the thing you can’t sub out is hard work.”

For further comment and interview opportunities contact:
PETA GRAY: 0427 034 600
ADAIR DONALDSON: 0427 625 977

Better Lawyers Group
www.betterlawyersgroup.com.au

PO Box 817, Toowoomba QLD 4350
Level 1, 11 Annand Street, Toowoomba QLD 4350

By James Hart
4 min read

The Treasury Laws Amendment (More Competition, Better Prices) Bill 2022 has recently made waves in the legal realm, bringing about significant modifications to the 'unfair contract terms' (UCT) provisions within the Australian Consumer Law.  As of 10 November 2023, these changes are in full effect, meaning the UCT Provisions apply to contracts entered into or renewed or varied from that date onward. 

Businesses must carefully consider these amendments, prompting a thorough review and adjustment of their contracts and operational practices. In this article, we explain the amendments, their legal implications and why they matter to your business.

Key Changes to UCT Provisions 

The amendments significantly modify unfair contract term provisions in the ACL and the ASIC Act. 

Expanded meaning of standard form contracts

The ACL unfair contract provisions previously only applied to consumer or small business contracts that were "standard form contracts" – generally being a ready-made agreement where one party (usually the business) sets all the rules. The changes expand the application of these provisions because now a contract can be found to be a "standard form contract" even where a party has had an opportunity to:

• To negotiate changes that are minor or insubstantial in effect
• To select a term from a range of options determined by another party 
• To another contract or proposed contract to negotiate the other contract's or proposed contract's terms.

The practical effect of this change is that it reduces the ability of businesses to enforce their Terms and Conditions if they are unfair, even if the customer has 'agreed' to them. 

The UCT provision

Rather than looking at the value of the contract in question as was previously the case, the UCT provisions now apply to businesses that:

• Employ less than 100 persons (up from 20 previously) or
• Had a turnover of less than $10 million in the last income year.

This means the UCT provisions apply to more (particularly larger) businesses than was the case previously. Consumers, therefore, have recourse to these provisions in a greater range of circumstances.

In addition, the Bill prevents businesses from avoiding the UCT provisions by clarifying how employees are to be counted to ensure a more accurate reflection of a business's scale. For example, casual employees are counted if they are employed regularly and systematically. Part-time employees are now considered a fraction of a full-time equivalent.

Introduction of penalties

Under the Bill, both UCT regimes will be amended to prohibit expressly:

• The inclusion or reliance on a UCT in a standard form contract
• Applying or relying on (or purporting to apply or rely on) a UCT in a standard form contract
• Proposing a UCT in a standard form contract, which they have entered into.

This means that your business may incur substantial liability if its contracts are not reviewed for compliance with the UCT provisions.

Penalties for breaching the ACL UCT prohibitions range from $2.5 million for an individual, to greater than $50 million for companies. 

If the court can determine the value of the benefit obtained—the penalty could be three times that amount. And if the court cannot determine the value of the benefit obtained—the penalty could be 30% of the company's turnover during the turnover period for the offence.

Expanded Remedies

The Bill will expand the above by ensuring that an unfair contract term in a standard form contract remains automatically void and will allow a Court to make orders to void, vary or refuse to enforce the contract if it is appropriate to:

• Prevent loss or damage that is likely to be caused or
• Remedy loss or damage that has occurred.

How Enterprise Legal Can Assist

These changes necessitate a proactive approach from businesses, prompting a thorough review and adjustment of contracts to align with the new requirements. 

Enterprise Legal's dedicated Business Team can assist in reviewing the contracts for your business. Businesses often issue numerous standard form contracts daily, so they are exposed to significant liability if all of their contracts are subsequently found to contravene the UCT provisions. 

Our Disputes Team is well-equipped to act on behalf of your business in defending complaints by consumers. Whether representing consumers or businesses, we strive for positive outcomes using the UCT Provisions. In a recent case, we successfully utilised the UCT provisions to vary a contract and achieve a favourable outcome for our client.

For specialist guidance in navigating these changes and ensuring your business is on the right side of the law, do not hesitate to contact Enterprise Legals's business team today. 

Let us provide the legal expertise your business needs to thrive amidst these regulatory shifts!

By James Hart
3 min read

In Lacson v Australia Post Corporation [2019] FCA 51, an employee, Mr Lacson held two part-time jobs with the same employer, Australia Post. The first job was as a Postal Delivery Officer at Collingwood Post Office, and the second was as a Postal Sorting Officer at the Melbourne Parcel Facility.

His positions, with different working hours, rates of pay, and responsibilities, sparked a legal debate over entitlements under separate enterprise agreements.

Examining the Federal Circuit Court’s initial ruling and the subsequent Federal Court of Australia appeal decision sheds light on the complexities employers face when managing multiple roles within a single contract and the potential repercussions concerning overtime payments and award provisions.

The Issue in Brief

The pivotal issue was whether these roles should be considered separately or cumulatively for overtime calculations. The employer argued that the enterprise agreements applied separately to each job and, therefore, overtime calculations should be separate.

Federal Circuit Court Decision – Round 1
In the first instance, the judge ruled in favour of Australia Post.

The Court held that the enterprise agreements could apply to each job separately. This decision was reached based on the Court’s interpretation of section 52(2) of the Fair Work Act 2009 (Cth) (the Act) which referred to ‘particular employment’.

Federal Court of Australia Appeal – Round 2
The case was later appealed to the Federal Court, where the justice upheld the previous decision based on various factors, including different contracts, working hours, locations, and pay rates. The Court stated that “particular employment” referred to a specific job or position and confirmed that the enterprise agreements could apply separately to each job.

Important Insights for Employers:

• Employer Caution: Exercise caution when hiring individuals for multiple roles under one contract to prevent potential violations regarding overtime payment. Such arrangements might be viewed as an attempt to bypass overtime and award regulations. Note that negotiations on these arrangements might be permissible at the workplace level in certain cases.
• Intentional Distinction: The Lacson case highlights a key difference from instances where employers deliberately evade paying overtime. In Lacson, the dual employment stemmed from the employee’s choices, not a deliberate strategy by the employer. Diverse circumstances might apply if an employer consciously evades overtime payments or misleads employees into assuming that multiple roles equate to a single job.
• Restructuring Clarification: Instances involving restructuring, offering separate contracts for distinct roles within the same organisation, are less likely to be construed as attempts to avoid overtime payments. Such scenarios commonly emerge from restructuring efforts, maintaining the separation and distinction of roles.
• How Enterprise Legal Can Assist

Navigating employment law and ensuring compliance with legal requirements can be complex, especially in cases involving dual employment. At Enterprise Legal, our specialised expertise in employment law ensures that your business remains compliant while addressing the intricacies of dual roles within a single contract.

Key Assistance Areas:

• Employment Agreement Review: Enterprise Legal specialises in employment law, providing full-spectrum support from crafting and reviewing agreements to resolving disputes. We can assist in evaluating and refining existing employment agreements or craft new ones to guarantee full compliance with prevailing legislation.
• Guidance on Compliance: Our team provides tailored legal advice on integrating legislative requirements into your business practices, ensuring adherence to overtime regulations and award provisions.
• Unfair Dismissal and General Protections Applications: Our team assists employers and employees resolve disputes that occur in relation to an employee’s employment and workplace rights. We can provide tailored advice and, if necessary, assist in brining Applications before the Fair Work Commission.

For comprehensive legal support and guidance in managing dual employment scenarios within your business, contact our dedicated Business and Disputes teams today. Enterprise Legal is here to provide the legal expertise and support you need to navigate employment-related challenges confidently.

By Rheannon Simmonds 
6 min read

We have seen some significant changes to residential tenancies over the last year and it’s important to understand how these changes may impact your upcoming purchase plans.

This article highlights some of the more prevalent changes and will assist buyers and sellers to understand these changes and how they might impact a sale or purchase of property.

Key Change - Vacating a Tenant

Several changes were made to the Residential Tenancies Act at the end of 2022, but for buyers and sellers, one of the biggest changes was new legislation about how tenancies may be ended by a landlord or a tenant.

For owners and managing agents, a tenant can no longer require a tenant to vacate “without grounds”, however the following additional “with grounds” options for giving notice to a tenant to vacate were added:

1. End of a fixed term agreement
2. Undertaking a significate repair, renovation or demolition
3. Change of use
4. Owner or relative moving into property
5. Preparing to sell, or sale of rental property requiring vacant possession
6. Property is required by a State Government Program

For tenants, they have benefited from the following additional “with grounds” options:

1. Property not in good repair
2. Death of a co-tenant
3. Entitlement to student accommodation has ended (eg. no longer a student)
4. Failure of owner/manager to comply with repair order
5. Misrepresentation by lessor or agent

Although additional ‘grounds’ have been included, there are still very strict timeframes (which vary depending on the ‘grounds’ given) that must be followed to give a tenant enough time to vacate the property.

Impacts on Purchases and Sales of Residential Property

It’s important to understand that a fixed term tenancy does not automatically end when the property is sold, and the agreement must be honoured until the end date.

Of course, the tenant and owner may agree to end the tenancy early because of the sale, but this is only if they agree to such an arrangement. The tenant is otherwise entitled to stay until the end date of their agreement, or until the expiry of the relevant notice period.

For buyers, a key point to understand is that you may not necessarily be able to move in straight away if there is an existing fixed term tenancy, and this might significantly impact your moving plans when it comes time for settlement. This is something that should be discussed with the seller or selling agent before the contract is entered into, and is one of the things Enterprise Legal will consider and discuss for you whenever we review your draft contract. For example, if f the tenant has agreed to vacate early during the sale negotiations, we will need to ensure this is reflected in the Contract.

For sellers, you will need to know whether your buyer intends to move into the property so that you can factor in whether you have grounds to terminate the tenancy, and if so, how much notice you are required to give.

This should also be discussed at the outset and reflected in the contract, including ensuring the contract has appropriate due dates.

Key Change – Minimum Standards

Another key change is the obligation on landlords to maintain ‘minimum housing standards’
The minimum housing standards have been updated and will apply to new leases entered into from 1 September 2023 to 1 September 2024 (and a ‘new lease’ includes any renewal or formal variation of an existing lease). The minimum housing standards require:

1. The premises to be weatherproof and structurally sound. Premises are not weatherproof if the roofing or windows of the premises do not prevent water entering the premises when it rains.
2. Fixtures and fittings to be in good repair and not likely to cause injury to a person.
3. Functioning Locks or latches on all external windows and doors secure the premises but only applies to those could be accessed without having to use a ladder.
4. The premises to be free of vermin, damp and mould but does not apply to any caused by the tenant.
5. Privacy coverings for windows in all rooms in which you would expect privacy, such as a bedroom but does not apply to a window if a line of sight between a person outside the premises and a person inside the room is obstructed by a fence, hedge, tree or other feature of the property. Privacy covering for windows can be achieved with the use of any of the following:

a) Blinds
b) Curtains
c) Tinting
d) Glass frosting

6. Adequate plumbing and drainage that is connected to a water supply service or other infrastructure that supplies hot and cold water suitable for drinking.
7. The bathroom and toilet facilities at premises must provide the user with privacy. In addition, each toilet must function as designed, including flushing and refilling, and be connected to a sewer, septic system or other waste disposal system.

a) Kitchens must include a functioning cook-top.
b) Laundries must include the fixtures required to provide a functional laundry other than whitegoods.

Failure to comply with the minimum requirements means that you risk:

1. Increased rent may not be enforceable as the tenant may apply to the Queensland Civil and Administrative Tribunal (QCAT) for an order reducing the proposed rent increase.
2. A tenant may claim that you have breached your obligations of the tenancy agreement and can vacate the property early without penalty.
3. A tenant may apply to QCAT to seek an order requiring remedy of the failure to comply.

The minimum housing requirements may appear standard and what you would expect from any property but it’s important to understand your obligations from the outset if you are intending to rent your property so you can consider this at the time of your property search.

For buyers, they will need to consider whether the property they are purchasing already meets these requirements, or whether any works need to be done as this may affect things such as the purchase price offered, or seeking agreement from the seller to take certain steps before settlement can be completed.

Enterprise Legal's Top Tips

1. Find out from your agent about any tenancies that are in place at the property you are looking to purchase.
2. Request a copy of the Lease Agreement to determine what the requirements are for ending/maintaining the lease, so that you can decide on appropriate timeframes.
3. Get your property contract reviewed by us before you sign it, Contract so we can discuss your obligations and options with you.
4. Inspect the property initially before you put in your offer but also try to be present during your Building and Pest Inspection. Inspectors will often speak with you about different issues during their inspection, so it is an ideal time to discuss any issues in accordance with the minimum housing standards and in general so that you may negotiate any rectification required with the seller.

Enterprise Legal’s property team are experts in working with buyers and sellers throughout the conveyance process, including navigating these changes and what practical and legal impacts they will have before, during and after the conveyance process.

Please don’t hesitate to contact our Conveyancing team if you have any questions about this article or to discuss your next purchase or sale.