Welcome

The Elevate Team is Growing!

Another Financial Year has been and gone – welcome to FY23.

It has been a busy few months for the Elevate team, including welcoming a new team member! Kathryn Tran joined our team in March as a Paralegal and has been a welcome addition to Elevate. Kathy is in her final year of the JD at Melbourne University. Outside of work and study, you will most likely find Kathy at the Prahran Market munching on a warm cheese toastie from Maker & Monger (a Melbourne icon) or throwing clay at the local ceramic studio. It is exciting to have our small team grow.

Outside of work, Andrew was able to take a short break for a little bit of sun at Hamilton Island, and we are all enjoying having more freedoms than this time last year. The weekend football is still a hot topic of conversation on a Monday – Andrew is now officially outnumbered with three Hawks supporters on the team, however as a Richmond supporter he is usually the one smiling.

We have welcomed the opportunity to continue working with our clients and helping them pursue their business endeavours and look forward to continuing this work in FY23.

Best Wishes

Andrew, Roxie, Yee, Ash & Kathy

Quarter Highlights

Jupiter Ionics

We would like to congratulate our Alliance client Jupiter Ionics on receiving a $2.65 million from the Australian Government as part of its Co-operative Research Centres – Projects scheme. This grant will be used to help develop the Company’s modular green ammonia manufacturing technology with the aim of the project being to deploy pilot-scale units on farms that manufacture green ammonia and ammonia-based fertilisers powered by renewable energy. Jupiter Ionics will lead a consortium on this project that includes Monash University, Fortescue Future Industries, Wesfarmers Chemicals Energy & Fertilisers, and SJDC Produce.

Contactile

Elevate was happy to represent our Alliance client Contactile in their recent capital raise for US$2.5 million in seed funding led by Silicon Valley based venture capital fund True Ventures. Other participants in the raise were Flying Fox Ventures, Radar Ventures and UNSW Founders – the University where the Contractile founders developed their core technology. Contactile develops tactile sensor technology for robotic dexterity, and we look forward to continuing to partner with the Company on their journey.

Envirostream

We were pleased to assist our Alliance client Envirostream Australia and its founding shareholder in selling the final 10% of the company to Lithium Australia NL (ASX:LIT). Lithium Australia NL had purchased 90% of the company in several tranches over 2019 and 2020, and completed the purchase of the final 10% in April 2022. Envirostream is the only accredited B-cycle entity to operate battery collection sorting and processing services in Australia.

Amaero

We acted for our Alliance client Amaero International (ASX:3DA) in a capital raise of approximately $11 million, led by growth investors Pegasus Growth Capital Fund and a group of prominent US institutional investors.  The investment was structured as a placement of ordinary shares, an issue of convertible notes, plus matching options.  We partnered with global firm DLA Piper, who provided US coverage and specialist ASX advice.  ASX-listed Amaero is a leader in metal additive manufacturing with operations in Australia and the US.

Alliance Update

We have welcomed new clients to our Alliance service over the last quarter. The subscription service is appealing to those who want to avoid bill shock and have us available for ‘business as usual’ legal support. We have continued to draft and review many different types of commercial contracts during the last quarter. If you are looking for a better model for commercial legal support, please contact us at alliance@elevate.legal.

Legal briefing

ASIC Relief for Virtual Meetings ends

We have previously reported on the relief provided by ASIC in ASIC Corporations (Virtual-only Meetings) Instrument 2022/129, permitting companies to continue holding virtual only meetings regardless of the provisions of their constitution. This relief was brought in due to the impacts of the Covid-19 Pandemic, however the relief expired on 30 June 2022. As of 1 July 2022, both listed and unlisted companies will only be able to hold virtual meetings if this is expressly permitted or required by the company’s constitution.

If you would like to continue (or start) holding virtual meetings and need your constitution reviewed to ensure it allows for this, please reach out.

Employee or Independent Contractor? High Court says look to the contract.

Earlier this year the High Court of Australia handed down two decisions (Construction, Forestry, Maritime, Mining and Energy Union & Anor v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations & Anor v Jamsek & Ors [2022] HCA 2) that help to clarify the test for determining whether an individual is an employee or independent contractor. In both decisions the Court ruled that the terms contained in a valid written contract take precedence over any subsequent conduct of the parties. This means that the rights and obligations in the contract are the focus of the determination, rather than what practically took place in the working relationship as it unfolded.

Previously, Australian Courts would apply a ‘multi-factorial’ approach when determining whether an individual was an employee or a contractor. The terms in any written contract were taken into account, however they were not decisive. Many factors were considered including how the working relationship played out in practice. The above two decisions give greater certainty for employers who have set out the relationship (either of an employee or an independent contractor) in a clear written contract. If the terms of a contract are not in writing or are ambiguous, the Court can still apply the multi-factorial approach to determining the relationship between the parties.

It is important to note that ‘sham’ contracting (misrepresenting an employment relationship as an independent contractor relationship) will still be considered, so if there is an allegation that the arrangement is a sham, despite it being documented in a written contract, an employer could still be exposed to orders to pay compensation and penalties.

These decisions highlight the importance of ensuring employers have well drafted written contracts with both employees and independent contractors that accurately reflect the nature of the arrangement.

Employee Share Schemes – Reporting Requirements

A reminder that if you are an employer who provides your employees (or their associates / related entities) with ESS interests (including Options, Performance Rights or other rights) under an Employee Share Scheme, you have certain reporting obligations each year. These reporting obligations are both to employees (by 14 July) and to the Australian Tax Office (ATO) (by 14 August).

An employer must provide their employees with an ESS statement if:

• They have acquired ESS interests under a taxed-upfront ESS at a discount during the financial year.
• A deferred taxing point for ESS interests acquired under a tax-deferred ESS happened or could have happened in the financial year.
• A start-up concession acquisition event occurred – you must provide certain information about the ESS interests acquired in the income year (number of interests acquired, market value of interests, acquisition price of ESS interests that are shares, exercise price of ESS interests that are rights, acquisition date of interests).

An employer must report to the ATO each year through an electronic lodgement.

For further information please visit the ATO website – https://www.ato.gov.au/general/employee-share-schemes/in-detail/employer-reporting-requirements/ess—reporting-requirements-for-employers/

Change in Charity Sizes

In our last newsletter we gave an update that the definitions of registered Australian charities were changing. A reminder that this change came into effect on 1 July 2022 with the following updates:

If you need any further information please visit https://www.acnc.gov.au/for-charities/manage-your-charity/financial-and-other-reporting.

Diversions

A selection of things taking up time outside work:

• Sorrow and Bliss, Meg Mason – I gobbled this book up in two days. The story follows Martha, a 40 year old woman whose husband has just left her and looks back at her past to piece together why she is the way she is. It is a sensitive look at mental health and, as the title suggests, the sorrow and bliss of living life with mental heal difficulties. Though it tackles some tough topics, the book manages to be funny and entertaining in parts and sad in others. Definitely recommend! (Roxie)

• AllTrails – We love exploring the wonderful trails Australia has to offer. The most challenging part of it all is finding a walking trail that is suitable for young kids. AllTrails is a platform and app designed for outdoor enthusiasts. One of the great advantages of the AllTrails app is being able to read other people’s reviews. The app is easy to use, intuitive and you can input variables like location, activity type, difficulty of track, distance and so much more. Once you’re on your way, AllTrails allows you to record and share your outdoor adventures with family and friends https://www.alltrails.com/ (Yee)

• The Years of Lyndon Johnson – as forewarned in the April edition, I have embarked on Robert Caro’s 4-volume biography (3,257 pages!) of Lyndon B. Johnson. Volume 1 was about his family history and early life in the dirt-poor Hill Country of Texas, and early career in Washington, including his election as Congressman in 1937.  Volume 2 covered the hotly contested (or, let’s be frank, stolen) Senate nomination and election in 1948.  I’m now deep into the 3^rd volume, in 1957, when LBJ is ‘Master of the Senate’ and trying to win support from Northern liberals (so he can run for President in 1960) without alienating Southern conservatives (or, again, being blunt, reactionaries and bigots).  This is a monumental work of American political history and biography – not only of Johnson, but of other influential figures of the time (Sam Rayburn, Dick Russell, FDR, and the wonderfully named Coke Stevenson) and of the US Senate itself.  As for LBJ, so far I’m deeply conflicted about his personal vs political morality, and means vs ends.  And we haven’t even got to Vietnam… Another instalment to follow in the next newsletter (Andrew)

• American politics and law in general…Where to start? The Congressional Committee hearings into the January 6 attack on the Capital.  The Senate’s decades-long moral failure in blocking meaningful gun control laws. The Supreme Court overturning Roe vs Wade (and lots of other liberal laws).  Has the American two-party system become so partisan and entrenched that it now threatens democratic civic order?  This podcast from the Washington Post looks at the emerging legal battles between States on abortions, including laws that would allow citizens of a State that bans abortions (say Missouri) to sue people in other States where abortions are legal (say Illinois), and vice versa.  One State lawmaker cites the historical analogy of the States’ battles over fugitive slave laws of the 1800s…let’s hope not.  (Andrew)

• Nomad, a little bit of tasty magic… Neatly tucked away in the small yet bustling basement of Flinders Lane is an innocuous, Mediterranean restaurant, Nomad. Established over the COVID19 pandemic, Nomad is the first outpost of Sydney’s much beloved restaurant. However, unlike its bright and rustic Sydney counterpart, Nomad is a dark sultry restaurant that feels very uniquely ‘Melbourne’. Using only locally sourced ingredients, Nomad deserves to be on every foodie’s must-try list. The highlight dishes include the freshly wood-fired flatbread with house-made za’atar, the kingfish ceviche and the charcuterie board – featuring a peculiar Great Ocean duck mortadella that was cured inhouse by Nomad’s charcuterie facility. On top of all that, Nomad has an extensive wine list that champions small Australia growers and producers. So really… what’s not to love? (Kathy)