AGNESMCKAY LAW PRACTICE


Business | Workplace | Health and Safety

About Us


About Us
AGNESMCKAY LAW PRACTICE is owned and operated by Agnes McKay. Agnes is an experienced lawyer, having practised law in both New Zealand and (since 2011) in Western Australia.

Agnes graduated from Auckland University in 1994 with a Masters in Commercial Law with 1st Class Honours and has practised in the employment law space for over 30 years.

From Perth, Agnes works principally with employers and with senior level employees in workplace and health and safety matters.

Agnes collaborates with other select professionals and stakeholders to bring the best skills strategies and experience to any particular client engagement. She holds more than 10 years Board experience (on the shareholder Board of a NZ ITO educational training institution, and on the Board of a Perth community mental health organisation) and understands the difference between 'governance' and 'operations' as well as the legal and internal organisational implications involved when "crossing the line".

Agnes is a regular mentor with the Murdoch Student Emerging Leaders Program and is also a Forget Me Not volunteer at Royal Perth Hospital, providing support and practical assistance to vulnerable elderly patients.

Agnes lives in Perth with her husband Joseph, a Chiropractor. She enjoys quality time with family and friends, historical movies, long nature walks, and writing. In 2017 Agnes completed writing "The Law of Business Entities", with accompanying E-book of Practical Exercises. These were published by and are available from Thomson Reuters New Zealand . https://www.thomsonreuters.co.nz/the-law-of-business-entities/productdetail/125605



Services


Business

Assisting SME's and NFP's with a range of business related matters, including...

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Employment

Advice and representation on National system (Fair Work) and state industrial relations law, including...

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Health and Safety

Assisting Western Australian businesses with general legal advice on regulatory and compliance matters, including site visits and, in the unfortunate event of a workplace accident, legal representation.

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F.A.Q


From 1 July 2019, the high income threshold in unfair dismissal cases will increase to $148,700 and the compensation limit will be $74,350 for dismissals occurring on or after 1 July 2019.

This means that those national system employees earning more than $148,700 p.a.from 1 July 2019, will not be eligible to take an unfair dismissal claim to Fair Work. However there may be other claim options available depending on the facts and circumstances.



​​​​NES means National Employment Standards, and these are set out in the Fair Work Act 2009.These are minimum standards that apply to the employment of national system employees, and cannot be excluded by modern awards or enterprise agreements. The parental leave and notice of termination provisions of the NES also apply to employees who are not national system employees.


All states except Western Australia have referred their industrial relations powers to the Commonwealth.The definition of national system employee gives the Fair Work Act 2009 the constitutional power to regulate national workplace relations.

The Fair Work Act 2009 defines a national system employee  as an employee employed or usually employed by a national system employer (see FAQ What is the definition of a national system employer?).

Basically, if you are working for a business that operates as a Pty Ltd business, or is a trading or financial corporation, you will be employed by a national system employer.




The definition of national system employer is set out in section 14 of the Fair Work Act 2009. Unfortunately it is not straight forward. Section 14 states:

A national system employer is:
                     (a)  a constitutional corporation, so far as it employs, or usually employs, an individual; or
                     (b)  the Commonwealth, so far as it employs, or usually employs, an individual; or
                     (c)  a Commonwealth authority, so far as it employs, or usually employs, an individual; or
                     (d)  a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:
                              (i)  a flight crew officer; or
                             (ii)  a maritime employee; or
                            (iii)  a waterside worker; or
                     (e)  a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or
(f) a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.

Particular employers are declared NOT to be national system employers. This includes: 1) a body established for a public purpose; 2) a body established for a local government purpose, or a wholly owned subsidiary of (or controlled by) that body; 3) employers specifically declared by law not to be so, including by endorsement, revocation, or amendment of a Minister of a State or Territory (s.14(2) Fair Work Act).

This leads us to another question. What is a constitutional corporation? (see FAQ)
I wish this was an easy question to answer, but it is not! Consequently, there has been many a legal opinion written on this very question. Unhelpfully the term "constitutional corporation" is defined in the Fair Work Act to mean "a corporation to which paragraph 51(xx) of the Constitution applies." In other words, foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth

Not being an easy question to answer is why there are still cases brought in either the Fair Work or the State Commissions involving jurisdictional issues. In other words, legal arguments such as "this case should not have been filed under the Fair Work Act, which has no jurisdiction to hear it, but under the WA industrial relations system." The employer is not a "trading corporation" and is therefore not a national system employer." 

For example, many local governments consider themselves to be constitutional corporations and under the jurisdiction of Fair Work legislation. Some are trading corporations and some are not. That fact in itself often requires a legal finding based on specific evidence and cross examination. Also, trading changes from year to year, so the finding in favour of a trading corporation in one year may not be so, in a different year. There is legal and factual confusion about whether a particular LG is within the state system or the national system.

All local government employees can have access to the general jurisdiction of the WA Industrial Relations Commission (WAIRC), if they are employed by a non-constitutional corporation. That is the critical jurisdictional issue.

Working it all out is a bit like doing a jigsaw puzzle and trying to make the pieces fit. Some appear to fit but later it is clear that they are in the wrong place. Hopefully the confusion will disappear in the near future, once the WA Industrial Relations system is updated, following the 2018 Ministerial Review into our State Industrial Relations System. There is a recommendation by the Reviewer (not by many LG's however) for a declaration under state law, that a body established for a local government purpose is NOT a national system employer. Such a law and declaration needs to be endorsed by the Federal Minister. Watch this space!

Is your business in WA and are you in the WA industrial relations system?
i.e. Do you have award free employees? Are you a sole trader? Are you an unincorporated partnership? Do you have an unincorporated trust arrangement? Are you an incorporated association or not for profit body that is not a trading or financial association?

If so, this link is for you.2019 Award free employees minimum pay rates

Articles


Is a dismissal always fair if a health and safety procedure has been breached? No, not always.This article discusses what the Full Bench of the Fair Work Commission has to say on the matter in a 2018 decision. The lessons we can learn from this are set out at the end of the article.

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Planning on doing future online business in the EU? If so, you may need to review and re-design your online privacy policy and also get yourself up to speed with changes applying, since May 2018, under the EU General Data Protection Regulation rules (commonly referred to as EU GDPR). At the end of the day, your online business information and communication relating to the processing of personal data needs to be easily accessible, easy to understand, and in clear and plain language. This article sets out a list of matters for you to consider and work on, in relation to data protection wording and online design features for your business.

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When may a parent company be liable for defective products made, marketed and sold by its subsidiary company? The basis for imposing a duty of care upon holding companies in these circumstances is novel. It is a developing area of law, far from settled in Australia, the United Kingdom or Canada. It is a largely untouched area of law in New Zealand and was recently addressed by its Court of Appeal in December 2018. This article outlines a developing body of principles as to the circumstances in which a duty of care might be imposed upon a parent company for the acts or omissions of its subsidiary.

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This article examines future changes in Western Australia to the delivery of the National Disability Insurance Scheme

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Contact


  • Office: 176 Main St, Osborne Park Western Australia, Australia
  • Postal: PO Box 7314, Karawara, WA 6152