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Inside track: Superannuation, Funds Management & Financial Services

16 June 2020

#Superannuation, Funds Management & Financial Services

Inside track: Superannuation, Funds Management & Financial Services

In the media

Former financial adviser and Royal Commission witness, Sam Henderson charged with dishonesty and defective disclosure offences
Following an ASIC investigation, former Sydney financial adviser Sam Maxwell Henderson has been charged with three counts of dishonest conduct and two counts of giving a disclosure document knowing it to be defective. The charges relate to alleged false representations made by Mr Henderson that he had a Master of Commerce (10 June 2020).  More...

Super information on superannuation
Services Australia has launched a series of podcasts to help explain what the pandemic may mean for the receivers of Centrelink payments. The first episode in this special series focuses on early release of superannuation for people who may be under financial distress due to coronavirus ( 08 June 2020).  More...

Westpac blames breaches of AUSTRAC guidelines on "poor individual judgments"
Big Four bank Westpac has released the results of its investigation into AUSTRAC's allegations of money laundering and enabling child exploitation, saying there was no evidence of intentional wrongdoing (04 June 2020).   More...

Major overhaul of AFSL system required to reflect new era of professionalism in financial planning
The Financial Planning Association of Australia (FPA) launched its five-year policy platform by recommending a professional registration for individual financial planners replace the current system that requires an Australian Financial Services License (AFSL) to provide advice (03 June 2020).  More...

Flexible governance structure needed
A recent SCT determination has acted as a reminder to superannuation funds of their obligation to fully pursue insurance claims on behalf of members. In unprecedented times like the COVID-19 pandemic a governance structure that is flexible will allow superannuation funds to respond better, according to a panel ( Conference of Major Superannuation Funds (CMSF)(02 June 2020).   More...

Who is morally responsible for compensating early release fraud?
A new survey has confirmed continuing industry fund antipathy towards self-managed superannuation funds but less certainty about how they should be regulated. Reports indicate that scammers have been using shortcomings in the Government’s MyGov regime and that the Australian Taxation Office (ATO) has, in some instances, signed off on early release with respect to fraudulent claims (02 June 2020).  More...

Thousands of dollars disappear overnight as scammers use myGov to steal super
Scammers are taking advantage of the Government's early release superannuation scheme to steal money from Australians' nest eggs, and loopholes in myGov security could have something to do with it (01 June 2020).  More...

In practice and courts

APRA FAQ:  treatment of the Minimum Transfer Amount limit where the base currency is foreign-denominated
The APRA has published a frequently asked question (FAQ) providing guidance to all APRA-regulated entities in determining their requirements under CPS 226: Margining and Risk Mitigation for Non-centrally Cleared Derivatives. The FAQ is available on the APRA website at: Margining and risk mitigation for non-centrally cleared derivatives - frequently asked questions (01 June 2020).

ASFA: Guidelines for debt agreement administrators
We have made important temporary updates to the certified duties of debt agreement administrators, regarding proposals to vary debt agreements. These changes are currently in affect for six months (until 30 September 2020).  For more information see Practitioners: COVID-19 and changes to debt agreements. For updated general guidelines for practitioners, see Practitioners: COVID-19 and updated advice from the Inspector-General.

Cases

Australian Securities and Investments Commission v Commonwealth Bank of Australia [2020] FCA 790
CORPORATIONS – financial services – financial products – assessment of pecuniary penalty – declarations of contraventions – financial packages for rural customers – misleading representations – incorrect charging of fees and interest on loans – underpaying interest on savings – misleading or deceptive conduct – contraventions of ss 12DA(1), 12DB(1)(e) and (g) and 12DI(3) of the Australian Securities and Investments Commission Act 2001 (Cth) – breaches of general obligation to comply with financial services laws – failure to ensure that financial services covered by AFSL were provided efficiently, honestly and fairly – contraventions of ss 912A(1)(a) and (c) of the Corporations Act 2001 (Cth) – orders made

Ross v Paea trading as Bombora Cafe [2020] FCA 766
INDUSTRIAL LAW – where Applicant employed as cook by First Respondent – where Applicant claims unpaid wages, annual leave, taxation and  superannuation  under Fair Work Act 2009 (Cth)(‘the Act’) – whether the Restaurant Industry Award 2010 applies to First Respondent – whether First Respondent is employer under s 47 of the Act – whether First Respondent contravened the Act
SUPERANNUATION  – whether employee can sue employer where employer fails to make  superannuation  contributions to complying fund – nature of compulsory  superannuation  laws as tax in constitutional sense
BANKRUPTCY – where First Respondent has filed for bankruptcy prior to Court reserving judgment – whether leave granted to Applicant to proceed under s 58(3)(b) of the Bankruptcy Act 1966 (Cth) – where Court has already heard evidence in the case – where trustee of bankrupt estate neither agrees nor objects to leave being granted
PRACTICE AND PROCEDURE – where Applicant assisted by unadmitted acquaintance who appears to have been holding himself out as lawyer – whether judgment reasons should be referred to Law Society of New South Wales 

Rushton v Commonwealth Superannuation Corporation [2020] FCA 777
PRACTICE AND PROCEDURE – appeal from a decision of the Australian Financial Complaints Authority in relation to the applicant’s eligibility for a spouse pension – objection to competency by the first respondent – interlocutory application by the first respondent seeking summary dismissal, a permanent stay or strike out of the originating application – notice of appeal struck out – applicant given an opportunity to file an amended notice of appeal. Superannuation  Amendment (PSS Trust Deed) Instrument 2018; Federal Court Rules 2011 (Cth), rr 1.32, 16.21, 26.01, 33.12, 33.34 

Rachael Goldberg v The Advice Spot t/a The Advice Spot [2020] FWC 2671
Application for a remedy for alleged unfair dismissal – termination of employment – part time bookkeeper in small financial/accounting firm – jurisdictional objections – whether employer complied with Small Business Fair Dismissal Code – whether applicant’s dismissal a case of genuine redundancy – applicant claimed real reasons for dismissal were her second pregnancy and moving a family loan out of the business – dismissed by email while overseas – toxic and unbearable work environment – no notice of redundancy – no consideration of alternative options – evidence of applicant preferred over that of respondent – insufficient financial evidence – dismissal was not a case of genuine redundancy – daily meetings not consultation about redundancy – Code not complied with – dismissal harsh, unjust and unreasonable – reinstatement inappropriate – compensation to be ordered – consultation likely to be a short period – Sprigg Formula does not produce a fair result in all the circumstances – compensation order of ten weeks’ pay, plus  superannuation  – matter concluded.

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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