Q. A member is currently chairing a not-for-profit (NFP) board. There are 10 board members and one has requested a leave of absence for more than six months due to other work commitments. He advised that there is nothing in the constitution advising on this issue.
He wants to know, can he grant the director the leave of absence or is it best to advise the director to resign and then reapply?
A. As the constitution of the NFP does not provide for a leave of absence, one cannot be granted to the applicant director. The director may simply cease attending meetings (although he would remain a director with full liability under the Corporations Act), or he could resign.
Topic: Workplace law
Q. My client has 20 employees and office hours are 9am to 5pm. Most employees work within the hours 8am to 6pm. However, one person chooses to work till 7.30pm each night (including Saturdays) by herself.
We have a hotel next door. Is this an OHS issue and should we insist she cease working by at least 6pm? If she continues, what are our legal responsibilities?
A. An employer has a general duty to ensure the health, safety and welfare of all its employees whenever they are at work, regardless of the time of day. Your obligations do not change with the time of day or day of the week.
There may, however, be different measures you must take at different times to ensure the safety of your employees. For example, employees who are required to work at night may be at greater risk travelling home at night than employees who travel home at peak hour, or you may be concerned for the employees’ safety in being alone in the office.
There are no measures prescribed as to how to ensure the safety of employees in these circumstances. The employer must adopt appropriate risk management policies depending upon the working environment and must consider any risks in determining whether to allow employees to work at particular times.
If you do not wish your employees to work at particular hours, you can direct them not to do so. The employee is required to follow the lawful and reasonable direction of the employer. If they do not comply, you may take disciplinary action against them. However, if you allow an employee to work the hours specified in your question, you remain liable for their health and safety whenever they are at work.
Topic: SMSFs
Q. I wish to purchase business real property (an office) in my superannuation fund, in partnership with another super fund – each super fund to own 50 per cent without any borrowings. Do the purchasers need to buy the property as ‘tenants in common’ or can they be ‘joint tenants’?
A. The interests of the two super funds should be owned as tenants in common (not joint tenants), since under a joint tenancy, if the trustees of one of the superannuation funds die, then the property will pass to the trustees of the other super fund. This would be inconsistent with superannuation law (in that benefits are to be paid to the member’s dependants: SIS Act s 62(1)(iv)) and/or breach the terms of the deeds of each superannuation fund.
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All information is copyright Information Exchange 2012.
