Unlicensed building work – why would you?

Michael Callow, Partner

By Michael Callow, Partner

In Queensland, people or companies wishing to undertake building work have an obligation to hold a Building Services Authority licence. I expect that requirement is for the protection of the public, to ensure any building work undertaken is done so by qualified trades people.

One of the consequences of undertaking unlicensed building work was highlighted in a recent action brought under the Queensland Building Services Authority Act, when an unlicensed contractor commenced a claim for an unpaid final claim.

The unlicensed contractor, Mr McCoy, reached agreement with Mr and Mrs Sloss to find a removal home to be relocated to a block of land owned by the Slosses, and to undertake the work necessary to obtain council approval, to then able the house to either be rented, or sold.

Mr McCoy successfully identified a suitable house, relocated it to the vacant block, and undertook, either by himself or with the assistance of other relevant trades people, the work necessary to satisfy council.

There was trouble in paradise however, when the budget blew out (which is probably a familiar story for people having a home built). Mr and Mrs Sloss were also “dismayed to discover” that they did not qualify for the first home owner’s grant, which they had, it would appear, factored in to contribute $21,000.00 towards the cost of the project. Consequently, when Mr McCoy delivered his last account to the Slosses they refused to pay, resulting in proceedings being commenced to recover the final claim.

Unfortunately for Mr McCoy his lack of a QBSA licence came back to haunt him.

Under the Queensland Building Services Authority Act an unlicensed person cannot recover an amount for that person’s own labour, or for any profit which would have been made by the person, for carrying out building work. There remains an entitlement for an unlicensed person to recover costs paid for material, to other people for their labour, or for other costs, but the legislation does not allow an unlicensed person to personally be rewarded for undertaking building work – the price to be paid for not being licensed.

In determining Mr McCoy’s claim, the tribunal allowed Mr McCoy to recover costs incurred in undertaking the project, including the provision of materials and labour from other people, in an amount of slightly less than $10,000.00. However, the tribunal also identified that the Slosses had paid to Mr McCoy almost $27,500.00, including GST, for his labour to which Mr McCoy was not entitled, with the end result being an order that Mr McCoy in fact pay to the Slosses approximately $17,500.00, being the difference between the two amounts.

There was no question that Mr McCoy had not performed the contract in a tradesmanlike manner, with no complaints as to the relocation and establishment of the house, however, his lack of a licence meant he received no benefit in the process. And to add injury to insult Mr and Mrs Sloss reported Mr McCoy to the Building Services Authority for being unlicensed which in all likelihood led to a fine being imposed. I expect the Slosses are not on Mr McCoy’s Christmas list!

MDV Black Pearl Shiraz 2008

MDV Black Pearl

By Travis Schultz

Is it just me, or has Barossa Valley Shiraz become what Marlborough Sauvignon Blanc is to white wines?  You know what I mean – mouth filling, fruit driven styles that rely on overpowering sweetness and flavours to distract you from structural deficiencies?

That may be true of a number of the more clumsily mass produced wines that show up on the steel racking of the  major “discount” retailers, but you’d never make that observation of the boutique (if not artisan) wines like the MDV Black Pearl Shiraz 2008.

Winemakers Michael Datta and Wyndam House have captured the dense dark essence of Barossa Shiraz and harnessed it without resort to the shackles of heavy oak and its resulting tannins.  They caress the chocolate coated raspberries across the palate until the savoury cedar fingers massage their way through an ever so slightly astringent finale and invite a repeat of the dose.

I love the way that the natural sweetness (you’d almost swear that there was a dash of Grenache) ignites the taste buds yet manages to retain its dignity without an ounce of alcoholic heat showing across the palate.

It’s an honourable wine for a majestic occasion, but priced for us, the proletariat, at around $40 a bottle.

Travis Schultz, is managing partner of Schultz Toomey O’Brien Lawyers and lover of fine food and wine.



All employers must have a social media / Facebook policy for employees

By Peta Yujnovich, Senior Associate

Facebook is a social networking site first launched in 2004. In the eight years since Facebook was created it has grown at a steady rate and the most recent statistics suggest that there are now over 10 million Australians who consider themselves active Facebook users.

Such widespread use of Facebook has changed the way that we all receive and process information, how we socialise with others, the way businesses advertise, how politicians relate to the mass public and popular culture in general.

With all this happening in the last eight years the law is struggling to keep up with these changes. As a result more and more cases are coming before the Australian Industrial Relations Commission and Fairwork Australia showing what can happen when employees “post” about work on Facebook and the ramifications this can have. In particular two recent cases before Fairwork Australia have highlighted the need for employers to be aware of the use of social media and Facebook by their employees and to create policies as to how and when Facebook is to be used in the workforce.

The first case was the matter of Damian O’Keefe v Williams Muir’s Pty Ltd t/a Troy Williams The Good Guys.

In this case Damian lodged a claim for unfair dismissal after he was fired from his employment with the Good Guys. His employer fired him after he posted the following on his Facebook page, “I wonder how the f***ing work can be so f***ing useless and mess up my pay again. C**ts are going down tomorrow”.

Damian’s Facebook settings were set to the maximum privacy so his employer, conducting a search could not read his post without Damian allowing it (becoming an accepted friend on Facebook). However, some of Damian’s Facebook friends were co-workers who saw his comments and brought them to the attention of his boss.

In Damian’s case the Court dismissed his claim for unfair dismissal and determined that his employer was justified in terminating his employment. The Court was satisfied that his conduct was misconduct. Damian had admitted he had posted the comments, other employees had read them and the employee’s handbook created by the Good Guys specifically prohibited the type of post he had placed on his Facebook site.

The Court suggested that we all have to accept the separation between work and home is now less obvious than it used to be.

Damian’s case, however, can be contrasted with another case that has gone before Fairwork Australia, being Glen Strutsel v Linfox Australia Pty Ltd. In this case Glen was dismissed from employment as a truck driver after his employer found comments on his Facebook page about other employees that amounted to sexual discrimination and other comments that were racially derogatory.

Glen was successful in his case and the Court found that he had been unfairly dismissed by his employer.

The difference between Glen’s case and Damien’s case was that:

  • Glen’s Facebook postings had been bought to his employers attention by an employee who was not his friend on Facebook but had been effectively snooping through Glen’s Facebook page.
  • Some of the posts complained about were not posted by Glen but his friends and Glen was not aware that he could delete posts on his Facebook page that he didn’t create; and
  • His employer had no workplace policy in place regarding the use of social media by employees.

The cases highlight how important it is for an employer to have a social media policy in place which clearly outlines the rights and responsibilities of employees when using social media both in and outside of work.

With a clear social media policy in place an employer can ensure that if employees breach such a policy that they can take appropriate action to deal with the matter which in some circumstances may result in an employee’s dismissal.

A clear workplace policy also allows the issues to be brought to an employee’s attention so that they are mindful of their obligations to their employer when using social media and Facebook both in and outside of work hours.

Fraser Gallop 2009 Cabernet Sauvignon

By Travis Schultz

Western Australia is a state blessed with mineral wealth and a booming economy, but it’s not just the mining sector that is creating its economic prosperity.

In the Margaret River wine region, very talented vignerons have carved a niche in the market for their flagship styles in their (white) Semillon Sauvignon Blanc blend, and in the reds, their Bordeaux style Cabernet.  And the 2009 vintage of the Fraser Gallop Cabernet Sauvignon with its power and understated elegance seems set to continue the good fortune being experienced by our Western cousins.

Once again, the planets have seemingly aligned for the 2009 vintage which shows concentrated ripe cherry and cassis flavours, window dressed by a violet and cooking chocolate edge.  It’s the Cabernet that provides the power, but there’s some grip and graininess as a result of the Petit Verdot (8%), Malbec (2.5%), Cabernet Franc (2.5%) and Merlot (1.5%) which provide restraint and richness to the finish.

There’s layer upon layer of complexity and intrigue complete with cigar box aroma and all for only a thirty-something dollar outlay.  I challenge you to find an equivalent Bordeaux wine at that price!  A worthy wine right now, but will surely get even better with age.

Travis Schultz, is managing partner of Schultz Toomey O’Brien Lawyers and lover of fine food and wine.

Big Fines for Hiring Illegal Workers

The Federal Government has recently announced plans to introduce new laws next year which will impose massive fines on employers who hire illegal workers.  Under the proposed legislation, an employer found to have engaged a staff member who is not entitled to work in the country, could be exposed to a fine of as much as $50,000.00.

In the current economic climate, there has been a growing temptation for employers to reduce costs by engaging workers who are not legally entitled to work in the country, but who are prepared to do so for less than the minimum wage.  On the other hand, there is a growing sense that available jobs need to be protected and made available to Australian workers.

While I can understand the sense of national self interest that has seen these laws introduced, there does seem to be a much bigger issue at play.  Increasingly, businesses (and especially those in the manufacturing sector) are finding it difficult to compete internationally with other businesses who have access to a cheaper workforce and lower costs. In recent decades, Australians have enjoyed an increasingly high standard of living and all of the trappings that come with it.  On the other hand, our businesses that compete in international markets are now being asked to do so against a headwind of high labour costs that their competitors are able to avoid.  If the mining boom ends any time soon, I suspect that something is going to have to give in our labour market if we are going to be able to maintain a reasonable balance of trade!