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While the crew members were engaged to provide labour, they were remunerated based on an outcome. That is, they were paid a share of the gross proceeds of the catch in accordance with the schedule to the JV Agreement. |
• Although the JV Agreement did not expressly disavow an employment relationship, it referred to the parties as “joint venturers”. In addition, a provision of the JV Agreement was found to be inconsistent with employment, insofar as it explicitly required crew members to bear the cost of their own sickness and accident insurance. |
• There was little scope for the Taxpayer to exercise supervision and control over the activities of the crew members. The captain and his crew collectively made decisions about the location of where to fish and other operational matters. Once the vessel was moored at sea, the crew members had significant autonomy with respect to their fishing operations, as they were not given directions about how or where to fish. |
• Although the Taxpayer provided equipment to the crew members, the equipment was “effectively placed at the service of the joint venture.” |
• It was not decisive that the Taxpayer took care of taxation affairs for one of the crew members, as it merely indicated administrative responsibilities had been delegated to the Taxpayer (similar to delegating them to an accountant or business adviser). |
• The crew were not integrated into the taxpayer’s organisation; each of the parties had a function that they performed individually, albeit cooperatively. |
• The extended definition in section 12 of the SG Act did not apply to the characterisation, as the JV Agreement was not wholly or principally for the labour of the crew members - rather, it was a joint venture agreement that was intended to produce fish for sale. |
Therefore, superannuation contributions were not payable under the SG Act. |
Re XVQY v Commissioner of Taxation |
What happened? |
In this matter, the AAT found that two licensed plumbing sub-contractors (Workers) engaged by Enterprise Pty Ltd (Taxpayer) were not employees within the meaning of section 12 of the SG Act. The Taxpayer carried out maintenance plumbing work on government housing and engaged the Workers to assist with the provision of these services. |
The AAT found that the Workers were not employees within the common law definition. In reaching its conclusion, the AAT was influenced by the following factors. |
• The Workers could exercise control over how many jobs to accept and when to deal with the allocated work. |
• Although the Workers predominantly purchased their own tools and equipment from the Taxpayer, they did so because of the favourable cost and convenience. |
• The Workers could delegate their work and retained the risks and profits associated with running their respective businesses (eg the Workers had their own insurance arrangements). |
• Each Worker provided his or her own capital and faced the loss of that capital if the venture failed. |
• The fact that the Workers substantially performed work for the Taxpayer (which generally indicated economic dependency) was not determinative. |
In addition, Deputy President Nicholson said that, specifically, the question to be asked is whether the worker is working for himself or is providing his labour in the service of another. |
The AAT found that, in this case, the Workers were working for themselves. Therefore, superannuation contributions were not payable under the SG Act. |
Bottom line for employers |
There is no conclusive way to broadly determine whether a worker is an “employee” when determining an employer’s liability to make superannuation contributions on behalf of a worker, as the precise details of the engagement need to be examined in each case in order to characterise it. |
An organisation should consider whether its workers may be recognised as “employees” for superannuation purposes by closely examining the terms and circumstances of their engagement, in order to avoid a potentially adverse ATO assessment in the future. |
Untreated loss of a single tooth can easily progress to the loss of multiple teeth. When a patient needs to have multiple teeth replaced, an implant bridge might be a good option to discuss with their Coral Gables cosmetic dentist. |
With a conventional bridge, a prosthesis is created sacrificing virgin teeth on either side of the missing tooth/teeth. The crowns usually attached to existing teeth, will eventually need replacement extending the initial three units bridge. |
With an implant bridge, the crowns on either side of the bridge are affixed to dental implants rather than natural teeth. Eliminating the probabilities of recurrent caries. |
Your Coral Gables cosmetic dentist might suggest an implant bridge if you have multiple teeth that need to be replaced. The implant procedure is similar to the procedure for installing a single implant, but instead of installing a crown over the abutment, the Coral Gables cosmetic dentist will install a bridge attached to the abutments. |
Many patients find dental implants to be the perfect solution for missing teeth. |
When you meet with the best cosmetic dentist in Coral Gables, you can expect a thorough consultation and explanation of the process. Dr. Aller uses an implant bridge technique that’s minimally invasive and extremely effective. |
Contact Us |
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Tuesday, December 28, 2010 |
shitted on 'em |
if you ever find yourself in a silent, passive-aggressive subway feud with that bitch who just shoved you aside to steal the seat meant for YOU, the one who obviously NEEDS IT because why else would i be massaging my back and bending over to touch my toes in the middle of the damn TRAIN which is STALLED because apparently public transportation in this city has deteriorated to such a level that we're still waiting a long-ass time for trains a DAY after a snow storm, which is when all that shit is melting and therefore easy to clear away. ANYWAY: when this scenario (or any variation thereof) arises on a subway train, the best revenge you can get is this: |
1. stare at them. make sure you get their eye contact for a SPLIT SECOND. this part is very important. you must not linger. you must not hold their gaze like a psycho. like gary busey, if you will. |
2. look OFF TO THE SIDE. the sidelong glance is equally if not more important. the side glance will prepare you for... |
3. THE EYE ROLL. no eye roll is ever subtle, but if you blink, ROLL, blink, and continue to stare at your chosen side focal point, you will have done the trick. the blink is essential. they will know you just rolled your eyes, but part of them will think that they are crazy, that they are just being overly sensitive. |
4. go about your business. people watch. watch everybody except your enemy. check to see which subway stop you have arrived at. don't check your phone or fiddle with your ipod. |
5. THE CLINCH: get off the train before they do at a fly-ass subway stop. every shallow new yorker worth his or her salt judges everybody based on which subway stop they get out on, and anybody who says they don't is a liar with whom you should disassociate yourself immediately! everybody gets jealous when the guy or gal who is way out of your league gets off at delancey, stays on after lorimer, or walks in the direction of a letter train when you are stuck on a number train! these are the facts of life, people. and as soon as we accept them, we will be capable of exacting swift revenge on the hipster assholes who have wronged us.* |
*honestly, you should not go out of your way to "offend" these people in the petty way which i have outlined above. but if you happen to need to get off at the bergen F stop while they are stuck on a train to park slope (not too shabby, i'll admit), it feels so good to think that they wish they could be going where you're going. even if they're not. even if they're thinking, "did i forget to clean the litter box this morning?" you can always entertain fantasies. such is life, darlings. |
one more time for good measure... GOD BLESS AMERICA!!! |
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Naturopathic Medicine : Chinese Medicine |
What is Traditional Chinese Medicine and how can it help me? |
Health, as defined by Traditional Chinese Medicine (TCM), is balance. The Qi (pronounced chee), or vital force, will flow smoothly through all the meridians when Yin and Yang are balanced in the body. This also implies a balance between cold and hot elements, resistance to both internal and external pathogens, and neither conditions of excess nor deficiency. To treat "excessive" conditions, such as obesity or acute infections, the Licensed Acupuncturist must use "reducing" techniques. The treatment principle for "deficient" conditions is to "tonify" which means building up strength, endurance and flexibility. |
TCM views the body as an entire social system. The "solid" organs are personified thus: The Heart as Emperor rules the Spirit, the Liver as General stores the Blood, the Lung as Minister controls respiration and Qi circulation, the Spleen is in charge of "logistics" (digestive function), and the Kidneys are viewed as the "cultural advisor" which transforms both food and the "essence" inherited from our parents into Qi. Superimposed upon the Yin/Yang balance is the concept of harmony between the "Five Elements" of Wood, Fire, Earth, Metal and Water. The five elements are affiliated with tastes, body organs, bodily tissues, emotions, colors, planets, seasons, etc. For example anger is thought to emanate from the Liver and is associated with the element Wood. Anger can make the Qi rise suddenly, and cause ear or eye infections. Sadness is affiliated with the Lungs and the element Metal. Many people smoke, consciously or not, to deaden their feelings of grief. Joy is of the Heart, and likened to Fire. Fear is from the Kidneys and associated with Water, and both salt and water metabolism. Fear, for example, can make the Qi go precipitously downwards, causing incontinence. Worry, from the Spleen and linked to the element Earth, can cause the Qi to become "stagnant" which can manifest as constipation, delayed menses, obesity, or excess Phlegm (mucus, pus or tumor) production. |
The study of Traditional Chinese Medicine is a lifelong pursuit; the preceding paragraph is an extremely rudimentary sketch. TCM has four branches: 1) Acupunture and Moxibustion (burning of pressed Artemesia near specific points on the body), 2) Tui Na, or Chinese physical therapy, 3) Exercise, such as Tai Ch'i and Qi Gong, and 4) Diet. There are numerous readily applicable principles to food consumption which will help bring our health into balance. |
In Chinese Medicine, foods are considered not for their caloric, vitamin or mineral content, but for their flavors, "temperatures" and actions on the body. The Chinese say "Warm foods restore balance. Just go to the center and forget either extreme." Although in general TCM doctors do recommend a mostly cooked foods diet, the above quote refers not to actual temperature, but a way of classifying the food "quality." For example, nuts, avocado, chocolate, coffee, fried and grilled foods and raw onion are thought to be very "hot" foods to be consumed in moderation, if at all. Bananas, cauliflower, crab, asparagus, eggplant, cucumber, pineapple, tangerine and tofu are considered "cold" and equally contraindicated in large quantities. Examples of "warm" foods, at the center of the chart, are rice, broccoli, green beans, yams, fish, ginger, garlic, soy milk, spinach, scallions, carrots, nectarines, pears, corn, and bread. |
Flavors are important because different flavors have specific effects on the internal organs. For example pungent foods, such as green onion, ginger and parsley, act on the lungs and induce perspiration. Sweet foods, such as sugar, chestnut, beef and banana, act on the spleen and stomach and can cause weight gain -- not only because of high calories, but because they can improve digestive functioning. Salty foods, such as kelp, can soften hardness, which is why these foods can be useful in treating tuberculosis and congested lymph nodes. |
In Chinese Medicine, "diet" is a standard part of any therapy, and not just about a weight loss program. For example, people with respiratory conditions should eat small meals and avoid grains and dairy, which can cause congestion through mucus ("Phlegm") build-up. Those suffering from bladder infections should eat diuretic foods such as cucumber and watermelon. Both chronic and acute kidney problems benefit greatly from well cooked mung beans seasoned with mint. Raw vegetables, meat and sugar should be avoided by those with diarrhea. Instead, eat apples and rice or barley soup. |
The best known aspect of Acupuncture in the West, the part people are often most nervous about, is the use of extremely fine "needles" or filaments which arequickly inserted through the skin to tap into the vital force (Qi), and restore it to fully flowing balance. Very few patients experience discomfort with the needling; what is more startling at first is the sensation of one's own vital force -- it's strong and can feel for a moment or two like a dull, distending ache. |
In general, pain in TCM terms can be thought of as "stagnant" Qi which is not flowing smoothly through the meridans, but stuck somewhere, often at a joint (elbow, knee, shoulder) or at the site of an injury. Qi can also be stagnated in various of the internal organs, causing circulatory, respiratory or other systemic problems. The practitioner undertakes to look at the patient's tongue, feel their pulses and come up with a Traditional Chinese Medical diagnosis. The treatment follows according to the individual diagnosis. All 400 plus acpuncture points along 14 major and 8 "extra" meridians have specific therapeutic functions, not necessarily related directly to their proximity to the injury. Distal points are often used very effectively to provide relief at the other end of the body. A point on the top of the foot, for example, can help with hepatitis or other liver problems. A point in the web of the thumb works wonders for headaches, toothaches and sore throat. Most practitioners of Acupuncture use disposable needles; others may choose to autoclave the needles for re-use only with the same patient. In the United States all Certified Acupuncturists (CA) or Licensed Acupuncturists (LAc) take a minimum of three years training, have clinical supervision in the treatment of at least 400 patients, are thoroughly trained in clean needle technique, and pass national licensing exams (NCCA). Make sure to ask your Acupuncturist about her/his training. Many medical doctors are eligible to practice needling without adequate training. |
Lecture notes from Dr. Xiang Cao, Bastyr College 1989-1991. |
"Zang Fu: The Organ Systems of Traditional Chinese Medicine" by Jeremy Ross, Churchill Livingston, publisher, Edinburgh 1985. |
"Chinese System of Food Cures: Prevention & Remedies: by Henry C. Lu, Sterling Publishing Co., New York 1986. |
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Legal Trends: Tailor Non-competes to a T |
By Stephen L. Richey Sep 1, 2006 |
Reuse Permissions |
HR Magazine, September 2006A one-size-fits-all non-compete agreement wont pass a judges inspection. |
If your business is like most, you probably rely on a few central employees: the leading salesperson who has cultivated numerous relationships with clients, the head researcher who has developed a revolutionary industrial process, or the key executive who has brought pre-eminence to the company. Should one of these central employees leave, your business quickly may lose its competitive position—especially if the former employee joins a competitor. To protect your most valuable business assets—customer relationships, pricing information and marketing strategies—you will need to develop well-drafted, narrowly tailored non-compete agreements. |
And you will need to use those agreements sparingly. Limiting non-competes to employees who present a genuine competitive threat demonstrates the importance and reasonableness of any restrictions, and enhances the likelihood that the agreements will hold up in court. |
Thus, it is key to carefully consider which employees have access to confidential information or processes when determining who should sign such agreements. A thoughtful, consistent approach—both to identifying which employees must sign agreements and to drafting individual agreements—provides the strongest chance for success. |
But a well-tailored, narrowly focused agreement is only the beginning. To overcome many judges’ distaste for non-compete agreements and to stop former employees from damaging your business, you’ll need to take other practical steps as well. |
Tailor To Fit |
A written agreement that limits an individual’s future employment is enforceable only to the extent that its restrictions are no greater than necessary to protect the employer’s legitimate business interests and do not impose an undue hardship on the employee. Accordingly, a carefully drafted agreement that imposes reasonable restrictions is the key, not only to securing the employee’s voluntary compliance—which is the desired effect—but also to persuading a court to enforce an agreement as written if the employee fails to comply. |
In designing a non-compete agreement, a company should consider information material to whether a non-compete agreement will fit an individual. Relevant factors include: |
The scope of the company's operations and the employees duties. |
• The scope of the company’s operations and the employee’s duties. |
• The scope of the agreement’s time and geographic limitations. |
• The employee’s level of contact with customers, clients and business partners. |
• The employee’s access to or possession of confidential information or trade secrets. |
• The employee’s possession of knowledge and training gained as a result of the employer’s efforts as opposed to general skills and techniques or skills the employee brought to the job when hired. |
• The relative benefit of the restriction to the employer and the hardship on the employee. |
• The employee’s ability to earn a living if the agreement is enforced. |
If an employer decides that a non-compete is suitable, it should craft the agreement as specifically as possible to that person. In other words, avoid boilerplate, one-size-fits-all agreements. Nothing jeopardizes enforcement of an agreement more than provisions that are clearly inapplicable to the employee in question. |
Design the agreement to fit the individual in a specific position by: |
• Delineating the employee’s title and job responsibilities to establish the level of trust and confidence that the company places in the individual. |
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