ByLawyers News and Updates

Work health and safety – WA

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Work, health and safety laws in WA have changed. The Occupational Health and Safety Act 1984 (WA) has been repealed from 31 March, 2022.

The repealed Act has been replaced with the Work Health and Safety Act 2020. The provisions of the old Act have been consolidated and recast in the new Act, which is substantially based on the national model Work Health and Safety Bill.

The national model Bill was developed under the Inter-Governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety to underpin a harmonised WHS framework in Australia.

This means WA has now harmonised its legislation with the majority of other Australian jurisdictions.

The key elements of the new Act include:

  • a primary duty of care requiring persons conducting a business or undertaking to ensure the health and safety of workers and others who may be affected by their activities;
  • duties of care for persons who influence the way work is carried out, as well as the integrity of products used for work and persons who conduct training in workplaces;
  • a requirement that officers exercise due diligence to ensure compliance;
  • a framework to establish a general scheme for authorisations such as licences, permits and registrations;
  • protection against discrimination for those who exercise or perform or seek to exercise or perform powers, functions or rights under the Act;
  • continuation of Western Australia’s peak consultative bodies, re-established as the Work Health and Safety Commission (WHSC) and the Mining and Petroleum Advisory Committee (MAPAC).

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

Letter of offer – FED

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Two new Letter of offer precedents have been added to the By Lawyers Employment Law guide.

Letters of offer can be used to create an employment relationship between employer and employee when a full employment agreement is not required. These precedent letters set out the terms and conditions upon which the employment position is offered. The use of an optional schedule allows greater detail of the position description and the employee’s duties and responsibilities to be added if it is considered necessary.

The employee signs and returns a copy of the letter to confirm their acceptance of the position and the terms of employment.

One of the new precedents is for general use, the other is specific to employing apprentices.

The apprentice version extends the employee’s responsibilities to attending and undertaking the necessary training for completion of their apprenticeship. It also includes reference to the relevant requirements such as:

  • training contracts with an Australian Apprenticeship Support Network Provider;
  • specific state-based apprentice training legislation;
  • registered training organisations, such as TAFE;
  • training plans;
  • training records.

The apprentice version of the precedent also provides for the employee’s employment to terminate upon completion, cessation or transfer of the apprenticeship.

These new precedents Letter of offer and Letter of offer for an apprentice have been added to the matter plan in the Acting for Employer sub-folder under Folder B. Employment agreements.

By Lawyers comprehensive employment agreement precedents are also available in Folder B. for use when clients require a more detailed and flexible document. These precedents include:

  • Standard individual employment agreement;
  • Casual employment agreement; and
  • Executive employment agreement.

The new precedents have been added by our employment law author following a subscriber request. By Lawyers loves to receive feedback from our users – don’t hesitate to contact us if there are precedents you need.

Visa subclasses – FED

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There have been changes to a number of visa subclasses. These changes create new conditions and affect the expiration dates and cancellation grounds across various visa subclasses.

The Migration Amendment (2022 Measures No. 2) Regulations 2022 introduce the following three migration law changes.

  1. Visa holders in the 482 temporary skill shortage visa subclass can apply for a further 482 visa without leaving Australia. Applicants must have been in Australia between 1 February 2020 and 14 December 2021, when international borders were shut. This only applies to 482 visas in the short-term stream. Applicants will be able to make a further 482 visa application onshore from 1 July 2022 to 1 July 2023.
  2. Holders of skilled graduate visa subclass 476 who were affected by the COVID-19 pandemic have now had their visas extended to 14 April 2024. The extension commenced retrospectively on 31 January 2022, and includes secondary visa holders.
  3. Tourists who hold an Electronic Travel Authority eligible passport can now apply for a tourist visa subclass 601 through the new Australian ETA digital app, in addition to the existing Electronic Travel Authority website.

The Migration Amendment (Protecting Australia’s Critical Technology) Regulations 2022 introduces concepts of public interest criterion in granting and cancelling visas. These changes impact student visa subclass 500, and a postgraduate research course will satisfy the public interest criterion. However, the Minister may cancel any visa class where there is an unreasonable risk of any unwanted transfer of critical technology by a visa holder.

The By Lawyers Immigration commentary for both LEAP and website subscribers has been updated with these amendments. The commentary summarises the new conditions and dates for each affected visa subclass neatly within existing coverage of those visa subclasses.

Meetings and documents – FED

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COVID-related changes which affected the way companies deal with meetings and documents have been made permanent.

Companies and registered management investment schemes are now permanently able to use technology to hold meetings and execute documents under the Corporations Act 2001.

The Corporations Amendment (Meeting and Documents) Act 2022 makes permanent the previous COVID-related changes in the Treasury Laws Amendment (2021 Measures No. 1) Act 2021.

Meetings

A company can choose to hold a meeting:

  • in one or more physical locations;
  • as a hybrid at one or more physical locations and using technology;
  • virtually, if expressly permitted by the company’s constitution.

Members are to be provided with a reasonable opportunity to participate in meetings s 249S. Appropriate notice and provision of sufficient technology for members to participate and vote is required.

Documents

At least once each financial year members may elect to receive documents either electronically or in paper form. A member can request not to be sent any document prescribed in the regulations. The company is required to make notices available on a website and take reasonable steps to provide the member with any requested documents.

The following documents may be provided by the company in electronic or physical form:

  • notices of meetings;
  • resolutions;
  • matters to be considered at a meeting; and
  • minute books.

Execution

Corporate documents can be signed and executed electronically, with company signatories no longer required to sign the document in the presence of a witness physically.

A copy or counterpart of the document can be signed instead of the original therefore split execution is permitted.

Where there is a sole director, but no company secretary, a document is validly executed if:

  • the sole director signs the document; or
  • the sole director witnesses the fixing of the seal.

Where the new rules are followed people dealing with companies are entitled to assume that a document is validly executed.

The permanent changes apply to documents sent and meetings held on or after 1 April 2022.

The By Lawyers Companies guide has been updated to reflect these changes in the way companies may deal with meetings and documents.

Expert reports – FED

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Two new precedent affidavits for expert reports have been added to the Property Settlement and Children matter plans in the Family Law publications. These new precedents ensure compliance with Rule 7.21(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2022.

The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 apply in all family law matters across both divisions of the court. Part 7.1 of the Family Law Rules 2021 makes provision for expert evidence.

Rule 7.13 provides that experts be given a recent copy of Divisions 7.14, 7.15, and 7.16. These rules cover requirements for instructions to experts, information about disclosure by experts, their duties and obligations, and clarification of the requirements for expert reports. The By Lawyers enclosure precedent which combines these rules make it easy for practitioners to comply when briefing experts.

Expert witnesses in family court proceedings potentially include:

  • psychologists
  • social workers
  • child and family psychiatrists
  • medical specialists
  • property valuers, and
  • financial consultants.

The two precedents deal with both a single expert, when both parties to proceedings engage an expert jointly, and the less common situation where parties engage their own expert.

The new precedents are located in an IF REQUIRED – Expert witness folder, in the Going to Court folder in the Property Settlement guide, and Children guide.

Sexual harassment – FED

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New provisions for the prevention of sexual harassment and bullying in the workplace have commenced.

Part 6-4B of the Fair Work Act 2009 (Cth) now provides that workers can apply to the Fair Work Commission for orders to stop sexual harassment as well as workplace bullying. To be eligible to make an application a worker must be employed in a constitutionally-covered business.

There is no time limit for making an application for an order to stop bullying or sexual harassment at work. Section 789FF of the Fair Work Act 2009 provides that for the Fair Work Commission to be able to make an order there needs to be a risk that the applicant will continue to be bullied or sexually harassed at work. If the worker no longer has a connection to the workplace, an order cannot be made as there is no future risk of the relevant behaviour occurring.

‘Sexually harass’, for these purposes, has the same meaning as in s 28A of the Sex Discrimination Act 1984 (Cth).

Examples of sexual harassment include:

  • inappropriate behaviour including staring, leering, loitering or unwelcome touching;
  • suggestive comments, jokes or gestures based on sex or a person’s private life or body;
  • communicating sexually explicit material in person or electronically.

The objectionable conduct must occur at work, which is not defined but is tied to work activities wherever they occur and is not limited to the confines of a physical workplace. It includes entering, moving about and leaving a workplace.

The application needs to be lodged with the Fair Work Commission using the prescribed form: Application for an order to stop bullying or sexual harassment (or both).

The employer needs to respond within 7 days of being served using the prescribed form: Response from an employer or principal to an application for an order to stop bullying or sexual harassment (or both).

The alleged perpetrator will receive a copy of the application and be invited to respond within 7 days using the prescribed form: Response from a person named as having engaged in bullying or sexual harassment (or both).

All the prescribed forms are available in the Workplace bullying and sexual harassment folder on the matter plan in the By Lawyers Employment Law publication. The commentary has also been updated accordingly.

Disclosure – Family Law – FED

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Rule 6.02 of the Family Law Rules 2021 provides that a party must file a written notice stating that they have read Parts 6.1 and 6.2 of the Rules and that they will comply with their disclosure obligations. This written notice is given in the Undertaking as to Disclosure form that each party is required to file before the first court date unless the court orders otherwise.

New precedent Enclosure – Parts 6.1 and 6.2 of the Family Law Rules 2021 conveniently sets out all of the rules in Parts 6.1 and 6.2 for the client’s ease of reference. Practitioners can give this enclosure to clients involved in parenting or financial proceedings when first instructing them, making it easy for practitioners to comply with the requirements under the rules to fully inform their clients.

The enclosure accompanies the Letter to client regarding duty of disclosure and can be found on the Property Settlement and Children matter plans directly under the Duty of disclosure brochure in the Pre-action procedures folder.

The By Lawyers Family law publication is up to date with all of the recent changes to the family law system after the merger of the two courts into the Federal Circuit and Family Court of Australia.

COVID measures are here to stay – All states

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Many temporary COVID measures introduced across Australia during the pandemic are here to stay.

New South Wales and Queensland have now proposed legislation permanently retaining some COVID measures, such as remote witnessing. Victoria have already legislated to retain some COVID measures. The Commonwealth has extended temporary measures for companies.

With other states and territories expected to follow suit, the long-term legal legacy of COVID-19 looks like being significant.

New South Wales

The Electronic Transactions Amendment (Remote Witnessing) Bill 2021 will permanently allow certain documents to be witnessed in real time over an audio-visual link.

Further, for an additional 12 months from the date of assent, the list of people who can witness NSW statutory declarations will be extended to the expanded list of witnesses set out in Schedule 2 of the Statutory Declarations Regulations 2018.

Queensland

The Justice and Other Legislation Amendment Bill 2021 will make permanent some of Queensland’s  temporary COVID measures including:

  • Remote witnessing and electronic signing of affidavits, statutory declarations and some oaths; however electronic signatures on statutory declarations can only be used for a land or water dealing where electronic conveyancing is used.
  • Powers of attorney for corporations, partnerships and unincorporated associations, but not sole traders, can be signed electronically, in counterpart, by split execution and without a witness; however, if a general power of attorney is used for a land or water dealing it must continue to be executed in accordance with the Land Title Act 1994 and Land Act 1994.
  • Advance health directives can be certified as to capacity by nurses, in addition to doctors.
  • Deeds can be made in the form of an electronic document, electronically signed, made in counterpart and by split execution, generally without a witness. The Bill also removes the requirement for deeds to be sealed, requiring the deed to contain a clear statement that it is executed as a deed. However, deeds lodged or deposited in relation to land and water dealings must continue to be executed in accordance with the Land Title Act 1994 and Land Act 1994.
  • Private applications for temporary protection orders in domestic and family violence matters may be filed electronically, with a hearing date allocated and the application served before the application is verified. Verification can occur later, when the magistrate hears the application. The Magistrates Court may hear any part of family and domestic violence proceedings by audio visual link.

South Australia

The Oaths (Miscellaneous) Amendment Act 2021 commencing on 1 December 2021 amends the Oaths Act 1936 (SA) to:

  • Provide continuity following the expiration of the COVID-19 Emergency Response Act 2020 and its associated regulations through the Oaths Regulations 2021.
  • Introduce a Code of Practice – Affidavits to be followed by deponents and witnesses in the making of affidavits.
  • Introduce a Code of Practice – Statutory Declarations to be followed by declarants, and witnesses to ensure statutory declarations are taken in accordance with the Oaths Act 1936.
  • Expand the persons before whom a statutory declaration may be made as stated in the new Schedule 1 to the Oaths Act 1936.
  • Include additional offences for those falsely representing themselves as authorised witnesses to a statutory declaration or affidavit.

By Lawyers keeps you up to date

All relevant By Lawyers guides, including the dedicated guide Dealing with COVID-19 legal issues – Some practical information which appears at the top of all By Lawyers matter plans, have been or will be updated to reflect these changes as and when they take effect.

Director identification numbers – FED

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Director identification numbers have been introduced in Australia following the commencement of long-awaited amendments to the Corporations Act 2001 (Cth).

Director identification numbers, or Director IDs, are a unique number which attaches to an individual  company director for their life. They retain the director identification number even if they cease to be a director or move from the jurisdiction. It allows directors to be easily identified across multiple companies. It is intended that this identification will assist with compliance and insolvencies.

The 15 digit numbers will start with 036, which is the three-digit country code for Australia under International Standard ISO 3166.

Directors appointed prior to 31 October 2021 must apply for a director identification number between 1 November 2021 and 30 November 2022.

Directors appointed between 1 November 2021 and 4 April 2022 must apply within 28 days of appointment.

Directors appointed after 5 April 2022 must apply prior to being recorded on the ASIC register.

An application for a director identification number is made to Australian Business Registry Services. To make the application directors will need to provide:

  • tax file number;
  • residential address as held by the ATO;
  • two documents to verify identity.

Failure to apply as required, or any misrepresentation as to a director’s number or being the holder of a number, can expose current or prospective company directors to civil and criminal penalties.

The By Lawyers Companies and Joint Ventures guides have been updated accordingly. Commentaries discuss the need to obtain a Director ID. Retainer instructions now prompt for the Director ID.

COVID 19 legal issues

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Dealing with COVID 19 legal issues has been a major challenge for legal practitioners. A great deal of emergency legislation has now been passed in response to the pandemic, both temporary and permanent. While we are beginning to see some of the temporary arrangements introduced by courts, land registries and other authorities ease, there are still many measures in place that continue to affect daily practice.

The By Lawyers publication Dealing with COVID-19 legal issues brings together in one place a collection of up-to-date practical information which is a valuable resource for lawyers. It is available by clicking on the link at the top of the matter plan in every By Lawyers Guide.

The Dealing with COVID-19 legal issues publication continues to be updated and enhanced as the response to the pandemic develops. For instance, the Family Law section of the publication has been recently updated to include information on the updated COVID-19 Hearing Protocol from the Federal Circuit and Family Court of Australia (FCFCOA) to reflect easing restrictions in the ACT, NSW, and VIC.

All By Lawyers publications are updated to reflect permanent changes. By Lawyers will keep practitioners informed of ongoing changes and provide our trademark practical assistance to guide the profession in these difficult times.

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