Legal Updates

ASIC Enforcement Review – Part 4

“Co-regulation” encouraged for industry Codes – greater telecommunications surveillance a possibility

The major take-out from the ASIC Enforcement Review Taskforce on industry codes is whether co-regulation in appropriate parts of the financial sector would improve the self-regulatory model.

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Appellate Division Second Department Declines to Defer to NYSDOL Opinion Letter and Rules That Home Healthcare Attendants May Be Entitled to Wages for Hours Worked In Excess of 13 Hours a Day

In New York, State Department of Labor (“DOL”) regulations provide that the minimum wage must be paid for each hour an employee is “required to be available for work at a place prescribed by the employer.” (12 NYCRR § 142-2.1(b)) (“Wage Order”). Exception is made for a “residential employee,” defined as one who lives on the premises of the employer, during his or her sleeping hours or any time he or she is free to leave the place of employment. Id.

On March 1, 2010, the DOL issued an Opinion Letter advising that sleep-in employees, whether or not they are residential employees, who work a twenty-four hour shift must be paid not less than for thirteen hours for a twenty-four hour period provided they are afforded at least eight hours for sleep, actually received at least five hours of uninterrupted sleep and are afforded at least three hours for meals. (NYS St. Dept. of Labor OP. No-09-0169 at 4 (March 11, 2010)). The Opinion Letter was a reiteration of the DOL’s long standing interpretation of the Wage Order as applied to home health care attendants, and agencies assigning attendants to twenty-four hour shifts have long followed it in paying the attendants for this shift.

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Talking Tax – Issue 95

Cases

A win for the farmers!

In Brown Cavallo Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 18 , Brown Cavallo Pty Ltd as trustee for the Cavallo Family Trust (Taxpayer) applied to the Civil and Administrative Tribunal of New South Wales (Tribunal) for a review of the Commissioner of State Revenue’s (Commissioner) assessment of land tax on its land at Woolgoolga (Woolgoolga) for the 2012 to 2015 land tax years (Relevant Years).

The Tribunal determined that the Taxpayer was entitled to a primary production land tax exemption relating to the Woolgoolga, in respect of the assessments of land tax for the Relevant Years and the assessments were set aside.

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Internal investigations and the limits of privilege

The High Court recently ruled, in a landmark case brought by the Serious Fraud Office (SFO), that the Eurasian Natural Resources Corporation (ENRC) must hand over documents generated by an internal investigation by the company, including notes taken by lawyers of interviews with ENRC’s employees.

The SFO’s application was made in the course of its ongoing criminal investigation relating to ENRC’s activities in Kazakhstan and Africa. As part of its investigation, the SFO sought to compel ENRC to produce a range of documents which ENRC claimed were protected by litigation privilege. However, ENRC’s argument failed at the first hurdle.

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California: Citizen initiatives are for special elections, two-thirds approval does not apply

The California Supreme Court recently issued an opinion in favor of the plaintiffs – the California Cannabis Coalition (CCC) and two individuals – holding that the mandate that general taxes be submitted to the voters at a regularly scheduled general election applies only to local governments, and not to the electorate’s initiative power. This meant that the initiative at issue in the case, pertaining to legalization of medical marijuana in the city of Upland, should be submitted to the voters at a special election, not at a general election.

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Oregon: First state-wide bike tax generates controversy and revenue

On Aug. 8, 2017, Oregon’s governor, Kate Brown, signed HB 2017, a transportation-funding package, into law. Called the Transportation Improvement, Modernization and Preservation (TIMP) package, the legislation will be financed through a gradual increase in the motor fuels tax and motor vehicles registration and titling fees, among other things, according to the revenue impact statement. The registration fee and title fee surcharges are set to take effect on Jan. 1, 2018.

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Legality of Deduction of Wages of Factory Workers for Failure to Serve Notice Period

Employees resigning and ceasing to report to work without due notice and employers facing issues due to lack of proper handover and replacements is a common concern of employer companies. In an earlier article1, we had assessed the issue of deduction of wages of employees of a corporate office in Delhi, upon their failure to serve the required notice period. As a follow up, this article seeks to examine the legality of deduction of wages by employers due to lack of notice by a resigning employee, employed in a factory.

The ‘workers’ employed in a factory in Delhi are governed under the provisions of the Factories Act, 1948 (“Factories Act”). The term “workers” under the Factories Act, has been defined in a wide manner to mean any “person employed, directly or by or through any agency (including a contractor) with or without the knowledge of the principal employer, whether for remuneration or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process but does not include any member of the armed forces of the Union”.

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Trademark infringement within the European Union: the EU Court of Justice provides the official definition of an establishment for the purpose of finding the competent Judge

Trademark infringement within the European Union: the EU Court of Justice provides the official definition of an establishment for the purpose of finding the competent Judge
Authors: Maria Grazia Cavallo, Emanuele Cretaro In order to define the competent jurisdiction for the…
Maria Grazia Cavallo Marincola
Emanuele Cretaro

This is what the EU Court of Justice has affirmed in a recent decision of 18 May 2017, in the proceeding C-617/151.

The proceeding originated from a trademark infringement appeal promoted by the Danish company Hummel against Nike and Nike Retail (companies of the same group) for an alleged infringement of an international trademark by the US giant.

 

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Premium Processing Reinstated for FY 2018 Cap H-1B Petitions

As of September 18, 2017, the U.S. Citizenship & Immigration Services (USCIS) resumed premium processing service for H-1B petitions filed as part of the Fiscal Year 2018 cap quota, which includes 65,000 regular H-1B filings and 20,000 additional petitions for candidates holding a U.S. Master’s degree. Premium processing is not resumed for other types of H-1B filings, such as normal-course H-1B Extension of Status or Amendment filings. The H-1B nonimmigrant category allows for the U.S. employment of skilled workers in specialty occupations, such as information technology, academic research, and accounting, and requires candidates to hold a minimum of a U.S. Bachelor’s degree, or its equivalent.

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Can you disinherit your children if you want to?

You may recall that, a couple of years ago, the English press was full of reports of the Will case of Ilott v Mitson.  (For some background on the case, see my 2015 and 2017 blogs about it.) 

The case was of interest to any testator who is considering cutting out children from their Will.  However the Ilott case has now been applied in the more recent case of Nahajec v Fowle [2017] EW Misc 11 (CC), in which another impecunious child applied to the court and was successful in obtaining provision from her father’s estate, contrary to her father’s express wish that she should receive nothing.  So what can the Nahajec case teach us about whether it is possible, even, for parents to successfully exclude adult children from receiving any inheritance from them?
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