ByLawyers News and Updates

Employment Law updates – FED

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As employment lawyers would be well aware, employment law updates have been more frequent over the past few years than in any other area of law.

The By Lawyers Employment Law publication has been regularly updated since December 2022 to reflect the staged commencement of various changes under federal legislation including:

  • Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022
  • The Fair Work Legislation Amendment (Closing Loopholes) Act 2023
  • Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024

The Fair Work Commission has also implemented new rules to reflect these legislative changes.

To ensure coherence and consistency following all these employment law updates, the Employment Law matter plans and commentary have recently been reviewed by our author and our in-house legal editorial team.

Topics covered in the commentary that have been amended and reviewed because of the various employment law updates include:

  • The Overview including the objects of the Fair Work Act;
  • Equal remuneration requirements;
  • Prohibitions on pay secrecy;
  • Anti-discrimination and special measures;
  • Prohibiting sexual harassment in connection with work;
  • Flexible work arrangements;
  • Extensions of unpaid parental leave;
  • Small business redundancy;
  • Regulating labour hire arrangements – fixed term contracts and labour hire orders;
  • Added protection against discrimination under the National Employment Standards, especially concerning family violence;
  • The definition of casual employee;
  • Casual conversion; and
  • Unfair contracts.

See the following By Lawyers News and Updates posts for more details of the changes:

The By Lawyers Employment law publication is up to date with all changes.

Legislative amendments impacting various aspects of enterprise agreements are largely beyond the scope of the publication.

Relevant cases have also been added to 101 Employment Law Answers in the Reference Materials folder on the matter plan, including Feldschuh v Strong Room Technology Pty Ltd [2024] FWCFB 254, in which the Full Bench of the Fair Work Commission (FWC) held that a company director was not also an employee.

Parenting – FED

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The significant changes to family law parenting applications have been incorporated into the By Lawyers Family Law – Children guide.

The amendments to the Family Law Act 1975 and to the Court’s procedure arise under two separate pieces of legislation that commenced on 6 May 2024.

Family Law Amendment Act 2023

The amendments to how parenting orders are dealt with under the Family Law Act 1975 (Cth), include:

  • a refined list of factors for the court to consider when determining the best interests of the child, the emphasis now being on safety and the needs of individual children;
  • a new subsection requiring the court to consider the right of an Aboriginal or Torres Strait Islander child to connect with their family, community, culture, country, and language;
  • provisions that allow the court to consider any views expressed by the child to the independent children’s lawyer;
  • the repeal of the presumption of equal shared parental responsibility and the related equal time and substantial and significant time provisions;
  • codification of the rule in Rice & Asplund that requires a court to be satisfied that a significant change in circumstances has occurred before varying final parenting orders; and
  • a mechanism for the court to address repetitive filing of applications by one party to oppress another party.

Family Law Amendment (Information Sharing) Act 2023

  • establishes a new regime for information about domestic violence, children at risk, and firearms licensing to be shared between the relevant State authorities and the Federal Circuit and Family Court of Australia;
  • makes such material admissible in parenting matters, subject to exceptions and safeguards, for example legal professional privilege.

Publication updates

The Family Law – Children publication has been updated accordingly. To assist firms in understanding and transitioning to the changes a heading Changes effective 6 May 2024 has been added under the Overview in the commentary and on the matter plan, with a concise summary of the amendments and a Comparative table detailing the changes to the Family Law Act effective 6 May 2024 has been added as an Appendix to the commentary, with a link on the matter plan.

101 Family Law Answers has also been updated. Summaries and links to Rice & Asplund and related cases remain available.

Our family law authors and our in-house team will continue to monitor developments and update the publications further as the jurisprudence around these amendments develops.

Electronic signing and witnessing

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A new guide to Electronic Signing and Witnessing has been added to the Reference Materials folder on all By Lawyers matter plans.

This helpful resource summarises the various legislation across all Australian jurisdictions for electronic transactions.

Electronic signing and witnessing

In Australia under federal, state, and territory legislation many transactions can be completed electronically.

Electronic signing and witnessing are available for many, but not all, transactions and documents encountered in every day practice. However, the availability of electronic signing and witnessing is considerably different in each jurisdiction.

The new guide summarises the applicable legislation in each jurisdiction, to assist practitioners understand when electronic signing and witnessing is permitted and how it can be done.

Legislation

The Commonwealth took the lead on legislation to enable electronic transactions at the turn of the millennium, and sought the cooperation of the states in enacting consistent laws across all jurisdictions, resulting in the following legislation:

Electronic Transactions Act 2001 (ACT)

Electronic Transactions Act 1999 (CTH)

Electronic Transactions Regulations 2020 (CTH)

Electronic Transactions Act 2000 (NSW)

Electronic Transactions Regulation 2017 (NSW)

Electronic Transactions (Queensland) Act 2001 (QLD)

Electronic Transactions (Northern Territory) Act 2000 (NT)

Electronic Transactions (Northern Territory) Regulations 2001 (NT)

Electronic Communications Act 2000 (SA)

Electronic Communications Regulations 2017 (SA)

Electronic Transactions Act 2000 (TAS)

Electronic Transactions Regulations 2021 (TAS)

Electronic Transactions (Victoria) Act 2000 (VIC)

Electronic Transactions (Victoria) Regulations 2020 (VIC)

Electronic Transactions Act 2011 (WA)

Electronic Transactions Regulations 2012 (WA)

Unfortunately, the approach taken by each state and territory to implementing this legislation differs to various degrees from both the Commonwealth’s and each other’s. Each jurisdiction has exempted certain statutes, transactions, and documents from the operation of their Act or some of its provisions.

This means that, while all jurisdictions have laws providing for electronic transactions and electronic signing, and some have laws for audio visual witnessing, the documents that can be electronically signed and the requirements for execution vary between the jurisdictions.

The new guide brings all of this information together for practitioners to easily reference in any matter they are working on.

New FWC Rules – FED

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The Fair Work Commission (FWC) rules regulate the work of the Fair Work Commission. They include the procedures and requirements for filing and serving applications and responses in the various types of employment disputes under the Fair Work Act 2009 (FWA) and other legislation.

There are new FWC rules from 27 March 2024. The Fair Work Commission Rules 2024 (Cth) have replaced the Fair Work Commission Rules 2013 (Cth).

The new FWC rules remake and update the 2013 version. In addition to updates for some amended legislation and procedure, the rules have been substantially rearranged and renumbered.

There are now separate chapters of the rules for matters under the FWA, matters under other legislation, and for appeals and reviews.

The chapter for FWA matters is divided into separate parts that accord with all the areas of possible applications under the Act:

  1. National Employment Standards;
  2. Modern awards;
  3. Enterprise agreements;
  4. Regulated labour hire arrangement orders;
  5. Transfer of business;
  6. Fixed term contracts;
  7. General protections, unfair dismissal and unlawful termination;
  8. Industrial action;
  9. Right of entry;
  10. Sexual harassment and bullying;
  11. Regulated workers; and
  12. Disputes under dispute procedures in awards, enterprise agreements et cetera.

The requirements for service of applications and responses are now all contained within Schedule 1 to the new rules.

The transitional provisions provide that the new FWC rules apply to new matters and to any step in a matter already on foot, however the FWC can order that the previous rules continue to apply to a matter already on foot.

The By Lawyers Employment Law guide has been updated accordingly.

Changes to Family Law- FED

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A summary of the upcoming changes to family law parenting applications has been added to the By Lawyers Family Law – Children guide.

The upcoming changes to family law arise under two separate pieces of legislation, each of which commences on 6 May 2024.

Family Law Amendment Act 2023

Significant amendments to the way parenting orders are dealt with under the Family Law Act 1975 (Cth), include:

  • a refined list of factors for the court to consider when determining the best interests of the child, the emphasis now being on safety and the needs of individual children;
  • a new subsection requiring the court to consider the right of an Aboriginal or Torres Strait Islander child to connect with their family, community, culture, country, and language;
  • provisions that allow the court to consider any views expressed by the child to the independent children’s lawyer;
  • the repeal of the presumption of equal shared parental responsibility and the related equal time and substantial and significant time provisions;
  • codification of the rule in Rice v Asplund that requires a court to be satisfied a that significant change in circumstances has occurred before varying parenting orders; and
  • a mechanism for the court to address repetitive filing of applications by one party to oppress another party.

Family Law Amendment (Information Sharing) Act 2023

This legislation:

  • seeks to establish a regime for information about domestic violence, children at risk, and firearms licensing to be shared between the relevant State authorities and the Federal Circuit and Family Court of Australia (FCFCOA);
  • amends the Family Law Act to make such material admissible in children’s matters, subject to exceptions and safeguards, for example legal professional privilege.

The 2nd reading speeches note that the measures in each Act are complementary and that both Acts will work together to create a family law system that meets the needs of its users, centring the voices and best interests of children, and ensuring their safety and wellbeing is the paramount consideration.

Publication updates

By Lawyers guides are always up to date. When these changes to family law commence, the Family Law – Children publication will be updated accordingly. In the interim, the following content has been added to the guide too assist firms in understanding and transitioning to the changes:

  • an Alert has been added at the top of the matter plan and the top of the full commentary;
  • a heading Changes effective 6 May 2024 has been added under the Overview in the commentary and on the matter plan, with a concise summary of the amendments;
  • a Comparative table detailing the changes to the Family Law Act effective 6 May 2024 has been added as an Appendix to the commentary, with a link on the matter plan.

Closing loopholes – FED

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A raft of amendments closing loopholes in the Fair Work Act 2009 commenced on 15 December 2023.

Changes introduced by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 include:

Redundancy

Entitlement to a redundancy payment is extended to employees of a small business, being one with fewer than 15 employees, in certain circumstances. Generally, such businesses are exempt from the requirement to pay redundancy. However, under the amended provisions employees may be entitled if the employer is bankrupt or in liquidation and the  only reason the exemption applies is that the trustee in bankruptcy or liquidator has reduced the number of employees to less than 15.

Labour Hire

New provisions in Part 2-7A of the Fair Work Act restrict labour hire arrangements and allow employees or unions to apply to the Fair Work Commission for regulated labour hire arrangement orders prescribing the rates of pay that employees under a labour hire arrangement must receive. However, any such orders made by the Commission have no effect until at least 1 November 2024. The new provisions also introduce strict anti-avoidance provisions and civil penalties. There are some exceptions to the Commission’s ability to make orders, including for small business employers.

Unlawful dismissal

Prohibited grounds for dismissal are extended to include the fact that an employee is subject to domestic or family violence.

Right of entry

The amending Act removes the requirement for state or territory work health and safety representatives to hold an entry permit before entering a workplace. However that innovation is a subject to review after 9 months.

Further amendments

The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 includes additional provisions criminalising the intentional underpayment of wages by employers. Those provisions do not commence until 1 January 2025.

Publication updates

The By Lawyers Employment Law commentary has been updated accordingly. The amending Act’s further provisions will be the subject of additional publication updates in due course, as required.

Fixed term employment contracts – FED

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Limitations apply to fixed-term employment contracts from 6 December 2023, with the commencement of the final tranche of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022.

Fixed-term employment contracts

A fixed-term contract of employment is one that terminates at the end of an identifiable period, such as on a set date or at the end of a season.

Under fixed-term contracts, full-time or part-time employees have comparable conditions and entitlements to permanent employees, including leave entitlements, but no right to redundancy or unfair dismissal claims on termination at the end of their contract period.

Limitations on fixed-term employment contracts

The legislative amendments introduce limitations which apply to fixed-term contracts entered after 6 December 2023.  The limitations do not apply to contracts entered earlier, however earlier contracts are taken into account when determining consecutive contract periods.

Fixed-term contracts now cannot be used for the same role for more than two years, or by extending or renewing a fixed-term contract for a role that would otherwise be an ongoing full-time or part-time position even if the total period is less than two years. Only one extension option is allowable.

Exceptions to limitations on fixed-term employment contracts

A new s 333F of the Fair Work Act sets out various exceptions which, if applicable, mean the new limitations do not apply and a fixed term contract can be for more than two years or have multiple extensions. These essentially require there be a good operational reason for the fixed-term contract continuing, or the employee to have annual earnings under the contract above the high-income threshold.

Neither the limitations nor the exceptions apply to casual employees.

See the Fair Work Australia Fixed Term Contract Information Statement for further details.

Amending legislation

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 passed Federal parliament in December 2022, making many changes to the Fair Work Act 2009.

These amendments have all now commenced and include:

  • expansion of the objects of the Fair Work Act;
  • equal pay provisions to address gender inequality;
  • prohibition of pay secrecy – designed to augment the equal pay provisions;
  • prohibition of sexual harassment in the workplace, including Stop Sexual Harassment Orders via the Fair Work Commission;
  • additional grounds for anti-discrimination in the workplace;
  • expanded availability of flexible work arrangements;
  • a new small claims process for unpaid entitlement recovery; and
  • fixed-term contracts are generally no longer permitted.

Publication updates

The By Lawyers Employment Law publication has been updated for all the relevant amendments.

 

 

Priority Property Pool – FED

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From 30 October 2023, under a new Federal Circuit and Family Court of Australia practice direction, special procedures apply for property matters that qualify as Priority Property Pool (PPP) Cases.

Some registries of the FCFCOA have operated special arrangements under the PPP500 pilot since February 2020. The arrangements will now apply to proceedings in all registries.

Priority Property Pool Cases are those where the net value of the asset pool is, or appears to be, less than $550,000 excluding superannuation interests, or not significantly greater and the court considers it appropriate to include the matter as a PPP case.

Previously, under the pilot program, the cap was $500,000.

Priority property Pool cases can include matters involving applications for property settlement, spouse maintenance, or urgent spouse maintenance.

Cases will not qualify as a PPP Case if:

  1. they involve entities such as a family trust, company, or self-managed superannuation fund the value of which is contested and requires valuation or expert investigation,
  2. only parenting orders are sought,
  3. both parenting and financial orders are sought, or
  4. child support is the issue.

The new Family Law Practice Direction – Priority Property Pool Cases applies. It revokes and replaces the previous Family Law Practice Direction Priority Property Pools Under $500,000, and must be read in conjunction with:

PPP Cases proceed differently to standard cases. The Guide for practitioners in PPP Cases sets out the applicable procedure. Important differences from standard case procedures include:

  • At each court date the parties’ lawyers must inform the judicial registrar of the costs their client has incurred to date, their estimated costs to the conclusion of a final hearing, and the source of the funding for representation.
  • Adjournments are discouraged and will be granted only in exceptional circumstances.

The By Lawyers Family Law Property Settlement publication has been updated accordingly.

Domestic violence leave – FED

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Family and domestic violence leave entitlements are extended to small business employees from 1 August 2023.

Under the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 paid leave replaced the previous entitlement to unpaid leave for all non-small business employees from 1 February 2023. That entitlement is now extended to small business employees, so it covers everyone. A small business is one with less than 15 employees.

Full-time, part-time, and casual employees are entitled to 10 days of paid family and domestic violence leave in every 12-month period of employment. It is not calculated on a pro-rata basis for casual employees and is all available up-front, which means a new employee has an immediate entitlement to the full ten days. The leave does not accumulate if not taken.

The leave can be taken for any purpose relating to the impact of family and domestic violence, which might include relocating, attending court, or attending medical, legal, counselling, and financial advice appointments.

Employers cannot include information in an employee’s pay slip identifying the type of leave paid.

Family and domestic violence is defined as violent, threatening, or other abusive behaviour by an employee’s close relative, current or former intimate partner, or a member of their household that both seeks to coerce or control them and causes them harm or fear.

The leave can be taken during a period of personal or carer’s leave, or annual leave.

The notice and evidence requirements of s 107 of the Fair Work Act 2009 apply, including the requirement for the employer to maintain confidentiality: s 106C.

See the Fair Work Ombudsman website for more information.

The By Lawyers Employment Law publication has been updated accordingly.

Subpoenas – FED

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From 31 July subpoenas for production of documents, in most family law matters can be eFiled on the Commonwealth Courts Portal.

The Federal Circuit and Family Court of Australia (FCFCOA) has introduced eFiling through the Commonwealth Courts Portal for subpoenas seeking the production of documents where there is an ongoing family law final orders application on foot. Online filing is not available for interim applications, contravention applications or subpoenas for attendance and for attendance and production of documents.

There is a new option available in relevant matters on the portal for Request to issue a subpoena.

New subpoena forms apply. The old forms will still be accepted until Friday 29 September 2023.

Once the subpoena is issued the court will apply a Subpoena (Family Law) Coversheet which includes the last date for service, the date for production, and how the documents are to be produced. The new coversheets will be applied to all subpoenas, not only those able to be eFiled.

Documents in response to a subpoena cannot be produced through the portal. If possible, they are produced by sending an email to the court registry at the address noted on the subpoena’s cover sheet. All family law registries have a subpoena email address. If production by email is not possible the documents need to be otherwise delivered to the registry.

As part of this change the Notice of Objection has been removed from the new subpoena form. An updated version of the Notice of Objection is now a separate form available on the FCFCOA’s website.

By Lawyers Family Law Property Settlement and Children guides have been updated accordingly, with amended commentary and new hyperlinks covering the new processes for subpoenas, and the new forms added to the matter plans. The previous forms will remain available on the matter plan until at least 29 September.

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