obiter | ByLawyers News and Updates

Insolvency – FED

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Insolvency practitioners and lawyers acting for small business clients are advised that the Corporations Amendment (Corporate Insolvency Reforms) Act 2020 and Corporations Amendment (Corporate Insolvency Reforms) Regulations 2020 commenced on 1 January 2021.

These instruments amend the Corporations Act 2001 and Corporations Regulations 2001 to introduce two new insolvency processes: small business restructuring and the simplified liquidation process.

Small business restructuring

Under Part 5.3B of the Corporations Act 2001 an eligible company may have a small business restructuring practitioner appointed. This enables small companies that are financially stressed to restructure debt to continue to trade. The process is supervised by a small business restructuring practitioner, who must be a registered liquidator. Directors play a large role and retain control of the business under supervision. This reduces the costs of external administration and may see the company survive the financial stress experienced.

Simplified liquidation process

Eligible companies may access a simplified and faster liquidation process under Part 5.5 of the Corporations Act 2001, which reduces the costs and time of the process to ensure creditors are paid. In this process liquidators are able to adopt a simplified liquidation process with reduced compliance requirements.

The two new processes are aimed at supporting small businesses in financial stress.

The By Lawyers Insolvency – Company Liquidation commentary has been updated accordingly.

Court books – All states

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Court books are an indexed collection of all documents that the parties rely upon in proceedings, collated for convenience of use during a hearing. They are commonly used in all litigation matters and are compulsory in some courts, especially in specialist lists and on appeal.

A court book ordinarily includes all pleadings and evidence. It generally omits any irrelevant documents, even if they were disclosed in the proceedings. For example, a voluminous bundle of documents may have been produced under a subpoena issued by one of the parties in the lead-up to the hearing, but the party only seeks to rely on a few documents out of the bundle. The court book will contain the subpoena itself plus those relevant documents only.

A properly compiled and indexed court book allows solicitors, counsel and the bench to have a common reference point and easily navigate to relevant documents and issues as the hearing proceeds.

Two new precedents for creating court books have been added to every By Lawyers litigation guide in Australia.

The precedents Court book cover page and Court book index are customised for each court in each jurisdiction. They comply with each court’s requirements and will assist practitioners in compiling court books in all types of litigation.

 

Unpaid parental leave – FED

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Unpaid parental leave entitlements have been enhanced by the Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Act 2020.

These amendments provide greater support to parents who experience stillbirth, infant death, premature birth and the hospitalisation of their baby immediately following birth.

The amendments ensure the following:

  • Employees who are parents of stillborn babies or parents of babies or infants that die have the same entitlement to leave as parents of babies that survive;
  • Following a stillbirth or the death of an infant or child, the employee parent’s unpaid leave can only be cancelled by the employee;
  • Employees who are parents of premature babies and newborns that require hospitalisation after birth can put their unpaid parental leave on hold during the hospitalisation; and
  • Employees cannot also take compassionate leave unless it is following the stillbirth or the death of the child.

Employees may choose to access flexible unpaid leave options in the first 24 months after the child’s actual or expected date of birth or placement, for example, to enable a gradual return to work or shared caring responsibilities between parents.

The commentary in the By Lawyers Employment Law publication has been updated accordingly.

The Lighthouse Project – FED

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The Lighthouse Project is a new family-violence and risk screening initiative that will run in both the Family Court and the Federal Circuit Court for parenting matters. The legislative framework is provided by the recent Family Law Amendment (Risk Screening Protections) Act 2020.

The project will be initially available in the Adelaide, Brisbane and Parramatta registries of the courts. It is scheduled to commence before the end of 2020.

The Lighthouse Project includes:

  • early risk screening through a secure online platform;
  • early identification and management of safety concerns; and
  • assessment and triage of cases by a specialised team, who will provide resources and safe and suitable case management.

All cases identified as high-risk following the screening process will be referred to a dedicated list in the court. The specialist list will be known as the Evatt List. This will be a judge-managed list which will focus on early information gathering and intervention through a judge-led, dedicated support team in appropriate cases.

Both courts have a dedicated page on their websites with information about the Lighthouse Project.

The By Lawyers Family Law Children publication has been updated accordingly. Information on The Lighthouse Project has been included under Pre-Action procedures in the full commentary and on the matter plan. Practitioners are also reminded of the related information on family violence and cross-examination of parties, in the Going to court folders.

COVID-19 employment measures – FED

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The Commonwealth Government has introduced two new COVID-19 employment measures.

JobMaker Hiring Credit

This scheme enables payments to assist workplace participation by people aged 16 to 35 years.

The first year of this program runs from 7 October 2020 until 6 October 2021. It is intended that the program will be extended.

Eligible employers can claim $200 per week for each additional employee hired during this period aged 16 to 29 years. For employees aged 30 to 35 years employers can only claim $100.

Employees can be hired on a permanent, casual or fixed-term basis.

The payments are made as credits claimed quarterly in arrears from the Australian Taxation Office.

Paid parental leave work test period amendment

The work test period in the Paid Parental Leave Act has been temporarily amended. This applies to births and adoptions that occur between 22 March 2020 and 31 March 2021.

It allows access to parental leave pay and ‘dad and partner’ pay by those who do not otherwise meet the criteria of the work test due to the pandemic.

The work test requirements have not changed. An individual must have worked:

  • at least 10 months in their work test period; and
  • at least 330 hours in that 10-month period with no more than a 12-week gap between any two consecutive working days.

The work test period is usually 13 months prior to the birth or adoption of the child. The temporary change means that it is 20 months for parents who have had their employment impacted by COVID-19.

Information on these and previous COVID-19 employment measures see the commentary available at the top of every By Lawyers matter plan: Dealing with COVID-19 legal issues – Some practical information.

101 Costs Answers – ALL STATES

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101 Costs Answers is the latest addition to the By Lawyers ‘101’ series of helpful reference materials.

Located in the Reference materials folder on every By Lawyers matter plan, this publication contains valuable commentary and precedents on all aspects of legal costs.

The precedents include all of the By Lawyers costs agreements/client services agreements and costs disclosures, drawn together from all By Lawyers publications into a convenient single publication.

The By Lawyers costs agreements are compliant with the strict requirements of the various state laws. They cater for all areas of law, with detailed recitals of the scope of work usually undertaken in each type of matter. This not only defines the retainer but makes it easy for practitioners to produce documents quickly upon engagement.

The 101 Costs Answers commentary includes:

Disclosure requirements

The commentary helps practitioners to navigate some of the more complicated disclosure requirements including regulated costs and the specific obligations for different types of litigation matters. The effect of non-disclosure is also covered.

Disbursements

Commentary on defining and recovering disbursements includes relevant case law and examples. The By Lawyers costs agreements are drafted to clearly identify usual disbursements.

Counsel’s fees

The commentary deals with the contractual relationship between solicitors and barristers as well as disclosure requirements. With the solicitor responsible for payment of counsel’s fees regardless of the solicitor’s agreement with the client, the By Lawyers costs agreements include counsel’s fees as specific disbursements which the client is obliged to pay.

Debt recovery

Where debt recovery is necessary, 101 Costs Answers contains letters of demand and example pleadings to assist with the recovery of costs. There is also detailed commentary on costs assessment procedures and the relevant forms for each state are available on the matter plan.

Like all By Lawyers publications, 101 Costs Answers contains interactive links to relevant legislation and cases, which are always kept updated.

Notice of risk – FED

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A new Notice of risk form has been released for use in the Family Court and Federal Circuit Court.

The new form is called ‘Notice of Child Abuse, Family Violence or Risk’. It harmonises the approach taken to risk notification in parenting matters. It is intended to assist in ensuring that families receive appropriate and targeted intervention within the family law system.

The new form replaces and consolidates the three previously prescribed forms, being:

  • Notice of Risk,
  • Notice of Child Abuse, Family Violence or Risk of Family Violence (Current Case), and
  • Notice of Child Abuse, Family Violence or Risk of Family Violence (Application for Consent Orders).

The new form must be completed by all parties filing an Initiating Application, Response or Application for Consent Orders where a parenting order is sought from 31 October 2020.

Applications that are part completed but have not yet been lodged for filing on the Commonwealth Courts Portal by 31 October 2020 will also need to have the new form completed.

If an allegation of child abuse or family violence, or risk of same, is made in the Notice then an affidavit must be filed setting out the evidence on which the allegation is based. In the Federal Circuit Court, this may be done within the affidavit filed with the Initiating Application or Response.

The Notice must be served on all other parties and any other relevant person as outlined in the form. The Notice of Risk should be eFiled where possible using the Commonwealth Courts Portal.

The new form enables a Judge or Registrar to consider multiple risk issues in addition to child abuse or family violence, at an earlier stage in proceedings. Multiple risk issues include mental health, substance abuse and threats of harm. The Notice will be referred to the relevant child welfare agency where appropriate.

This form is available on the matter plan of the By Lawyers Family Law – Children publication. The commentary has been updated to include some practical information on the use of the form.

Non-disclosure – All states

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Non-disclosure agreements and clauses have been added to all By Lawyers guides. These precedents augment the existing Confidentiality Deed and clauses in the Folder of Blank Deeds, Agreements and Statutory Declarations in Folder A. Getting the matter underway on every By Lawyers matter plan.

In general, non-disclosure is passive and unilateral, whereas confidentiality is active and bipartite. The former generally requires a party simply not to reveal or release confidential information, whereas the latter requires a party to take positive steps to keep information secret and safe.

There are also other distinctions to be drawn when dealing with confidential information. Sometimes only one party is to provide confidential information to the other. In other cases, two or more parties propose to exchange it. Sometimes the parties wish only to protect the contents of their agreement, whereas sometimes they wish to protect other specific information relevant to their decision to enter into the agreement, or relevant to the subject matter of the agreement.

The various By Lawyers deeds and agreements and precedent clauses have been revised and enhanced to encompass these distinctions.

The commentary on Deeds and agreements in the Folder of Blank Deeds, Agreements and Statutory Declarations has also been enhanced to cover these points.

Apart from the precedents available in the Folder of Blank Deeds, Agreements and Statutory Declarations, relevant precedents relating to non-disclosure and confidentiality are also located in various guides as required.

Adding these non-disclosure agreements and clauses, and revising the existing confidentiality deeds and clauses, is part of By Lawyers continual commitment to the expansion and enhancement of our content.

Amended precedents:

Deed for general use

Agreement for general use

Confidentiality deed

Confidentiality clause for defined information – All parties

Confidentiality clause for defined information – One party

New precedents:

Non-disclosure agreements – Informal

Non-disclosure agreement – Formal

Confidentiality clause for terms of agreement – All parties

Confidentiality clause for terms of agreement – One party

Insolvency – FED

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The temporary changes to insolvency laws under schedule 12 of the Coronavirus Economic Response Package Omnibus Act 2020 have been extended to end on 31 December 2020.

The temporary measure were originally set to end on 25 September 2020.

A recap of the changes are as follows:

Bankruptcy

The time for a debtor to comply with a bankruptcy was extended from 21 days to six months. The threshold for initiating bankruptcy proceedings increased from $5,000 to $20,000.

The same six month time extension applies to the time within which a debtor is protected from enforcement action by a creditor, following their presentation of a declaration of intention to present a debtor’s petition, under s 54A Bankruptcy Act.

Liquidation

The time for a debtor company to comply with a statutory demand was extended from 21 days to six months. The threshold to issue a statutory demand increased from $2,000 to $20,000.

Safe harbour

The temporary s 588GAAA ‘Safe harbour—temporary relief in response to the coronavirus’, of the Corporations Act 2001 provides that the existing civil penalties for directors failing to prevent insolvent trading under ss 588G(2) do not apply in relation to a debt incurred by a company if the debt is incurred in the ordinary course of the company’s business and until 31 December 2020.

The By Lawyers Dealing with COVID-19 legal issues commentary has been updated to reflect the revised end date of 31 December 2020 for the Commonwealth government’s insolvency measures.

Criminal records – Employment – FED

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Commentary on the disclosure of criminal records by job seekers has been added to the By Lawyers Employment guide. This useful enhancement covers ‘spent’ convictions in all Australian jurisdictions.

Employees and job candidates have rights under state legislation except in Victoria, and also under federal legislation, relating to their employer or prospective employer accessing their criminal records.

Employers normally have the right to conduct criminal record checks on current and prospective employees. This generally does not include ‘lapsed’ or ‘spent’ convictions.

All states, except Victoria, have different legislative schemes for convictions that lapse, commonly known as ‘spent’ convictions. Commonwealth crimes fall under federal legislation which also covers the ACT and the Northern Territory.

These legislative schemes prescribe when certain criminal convictions lapse, after which time they may not be used as a basis for making decisions about a person’s employment. This allows offenders to put their past behind them, provided they have had the required law-abiding period.

For example, under s 85ZV of the Crimes Act 1914 (Cth), an organisation is prohibited from taking into account or disclosing to others an individual’s past criminal conviction under federal law if it is defined as having lapsed. An individual is not required to disclose such a conviction when applying for employment. A lapsed conviction is defined as an adult conviction more than ten years old, or a juvenile conviction more than five years old. The maximum penalty for the original offence cannot exceed 30 months imprisonment.

There are exceptions, such as where people are applying for jobs that involve working with children.

For further information on ‘spent’ convictions and employment applications see the By Lawyers Employment guide.

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