ByLawyers News and Updates

Adverse action – FED

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The recent employment law case of Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71 considered adverse action under the Fair Work Act 2009 and the obligation on an employer to establish that a decision affecting a worker is not contrary to the prohibitions in the Act.

Adverse action is covered in the By Lawyers Employment Law guide.

Sections 340 to 345 of the Fair Work Act prevent an employer from taking adverse action, as defined in s 342, against an employee who exercises a workplace right, defined in s 341.

For example, if an employee is dismissed, which constitutes adverse action being taken against them, because they made a complaint against their employer, which constitutes their exercise of a workplace right, then the employee may be able to bring a general protections claim against the employer.

In the recent case Qantas made a decision, while its fleet was grounded for the pandemic, to outsource ground handling operations at Australian airports. That resulted in Qantas employees losing their jobs to external providers. The union sought reinstatement of the employees on the basis that Qantas’ decision constituted adverse action on a number of bases. Qantas denied this and argued that the decision was made for operational business reasons.

The court found for the employees on one of the adverse action grounds, namely that the real reason for Qantas’ action in standing down employees was to prevent the exercise of a workplace right, being their right to negotiate a new Enterprise Bargaining Agreement which fell due shortly afterwards. Interestingly, that meant the court upheld the adverse action claim on the basis of a workplace right that did not exist at the time of the decision, but may exist at some future point in time.

The court looked in detail at how the decision was made, what the company took into account, and its knowledge of the future workplace right. The court found that Qantas knew it was circumventing the future right, whereas if it had no such knowledge the outcome may have been different.

The case may go on appeal, but it serves to remind workers of the robust nature of their rights under the Act and employers of the extent of their obligations.

This case will be added to the By Lawyers 101 Employment Law Answers publication and any developments on any appeal will be monitored.

Excluded beneficiary – NSW

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A recent Supreme Court case regarding an excluded beneficiary will be of interest to wills and estates practitioners. The court considered the effect of statements under s 100 of the Succession Act 2006 (NSW).

Nikolaos Tsiokanis died in 2019, aged 86. His will appointed two of his children as the executors of his estate. He made only $100  provision for his other daughter. The deceased made a lengthy statement in the will as to his reasons for effectively excluding his daughter.

The daughter brought a family provision claim. The estate was not a large one.

The court held that the relationship the deceased had with the executors was a stable one and they played an important role in caring for the deceased. The court said the deceased was entitled to, and did, take the plaintiff’s behaviour into account and was satisfied that it justified the reduction of the plaintiff’s share in the estate to nominal provision.

The court also held that the deceased was entitled, when considering any claim by an excluded beneficiary, to consider the nature and value of his estate and to consider, and give priority to, the competing claim of each of the executors with whom he had a close, loving, and supportive relationship.

The court noted that statements made by the deceased are admissible pursuant to s 100(2) of the Succession Act, however the court is not required to accept, unquestioningly, the truth, or accuracy, of the statements. This is particularly so if the content is denied by the applicant, or where there is other evidence that casts doubt upon their accuracy. The court needs to consider that the deceased may have made untrue, or inaccurate, statements, either deliberately, or unintentionally, or it may be that their view is misconceived.

Where evidence of a statement of a deceased is admitted under s 100(9), for the purpose of destroying, or supporting, the credibility of the deceased, s 100(10) permits evidence to be given for the purpose of showing that the deceased’s statement is inconsistent with another statement made, at any time, by the deceased.

Georgopoulos v Tsiokanis & Anor [2022] NSWSC 563 (11 May 2022) will be added to the By Lawyers 101 Succession Answers publication.

Amendment of the PIC rules – NSW

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Recent amendment of the PIC rules impacts procedure for motor accident claims and workers compensation claims in the Personal Injury Commission.

The Personal Injury Commission Rules 2021 govern proceedings in both of the Commission’s divisions. The rules have received their first review since the PIC commenced operations. The review has resulted in a number of relatively minor tweaks and additions, and one substantial change.

The minor amendments include:

  • provision for consistency across the divisions as to the material that is lodged in applications;
  • provision for compliance with notices for production across divisions;
  • procedure for lodgment and admission of surveillance recordings;
  • provision for SIRA to intervene in Merit Review Panel proceedings;
  • clarification that an application to refer a medical dispute for assessment can be may be made at any time.

Amendment to time limits for appeals

The substantial amendment relates to time limits. An anomaly in the legislation that established the PIC meant that there has until now been no discretion for the Commission to extend the time for an application or appeal beyond the 28-day period provided in the Act. The legislation has now amended to alleviate that situation, and a new Rule 133A is included in this amendment of the PIC rules to enable the time for applications and appeals to be extended where necessary.

The criteria for extension of time under the new rule is that, for the applicant to lose the right to lodge would result in demonstrable and substantial injustice.

The commentaries in By Lawyers Motor Accident Claims – from 1 December 2017 and Workers Compensation publications have been amended accordingly.

Franchise disclosure – FED

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New franchise disclosure requirements apply from 1 April 2022.

A free online franchise disclosure register has been established. The new Part 5A to the Franchising Code of Conduct requires franchisors to upload key franchise systems data. This is intended to allow prospective franchisees to make more informed decisions.

Franchisors have until 14 November 2022 to supply the information. The particulars the franchisor is required to disclose include:

The obligation for franchise disclosure is ongoing. Franchisors must annually publish updated disclosure documents within four months of the end of their financial year.

Franchise disclosure data must be uploaded for at least 14 days before a franchisor can enter into a franchise agreement. Fines of up to 600 penalty units apply for non-compliance.

The By Lawyers commentary on Franchises has been updated. This useful resource can found in the Reference materials folder on the matter plans for both the Sale and Purchase of Business. This includes updated links to the new regulation clauses.

Enforcement – NSW

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The By Lawyers Enforcement (NSW) publication has been extensively reviewed and expanded.

Part of the individual civil litigation publications for each court, the Enforcement guide deals with enforcing judgments and orders in civil matters in the Local Court, the District Court and the Supreme Court. It is a stand-alone publication, designed to assist practitioners who are advising and representing clients that seek to recover or resist a judgment debt or other order, whether or not the practitioner acted for the client in the substantive matter.

The commentaries have been substantially enhanced. New precedents provided on the matter plan include:

  • File cover sheet
  • Retainer instructions
  • Costs agreement and disclosure document
  • Initial letter to client
  • Letter of demand
  • To do list

The commentaries and precedents cover all manner of enforcement procedures, for all levels of courts, from examination and attachment to various warrants and writs.

Related By Lawyers guides include Insolvency and 101 Subpoena Answers.

Strata schemes – NSW

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Amendments to the Strata Schemes Management Act 2015 have commenced. They make permanent the previous COVID-related changes which permit procedural and service requirements to be met electronically.

Section 263 as amended allows owners corporations and strata managers to serve documents on owners and occupiers in strata schemes via electronic transmission.

The seal of an owners corporation can be kept and affixed electronically. The regulations can prescribe the requirements for storing the seal in electronic form, affixing the seal, and record keeping.

Owners corporations and strata committees are able to meet and vote in ways other than by physical attendance. The amendments enable the regulations to govern how voting is conducted, voting procedures and reasonable steps taken to allow participation and voting at meetings.

The amending Act provides for these arrangements to be reviewed after 18 months to assess whether the amendments assist strata schemes to operate effectively and efficiently.

The By Lawyers 1001 Conveyancing Answers publication been amended to reflect these changes, with updated links to the new legislative sections.

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.

Retail leases – NSW

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Certain COVID-19 related arrangements for retail leases have been made permanent.

The COVID-19 and Other Legislation Amendment (Regulatory Reforms) Act 2022 No 5 preserves temporary protections for certain lessees impacted by COVID-19. This is achieved by inserting a savings provision, s 88(1A), into the Retail Leases Act 1994. This has the effect of retaining the relevant provisions of the Retail and Other Commercial Leases (COVID-19) Regulation 2022 even though it is to be otherwise automatically repealed on 14 July 2022.

The COVID-19 protections in question include:

  • Landlords cannot act against an impacted lessee failing to pay rent, failing to pay outgoings, or not being open for business during the hours required under the lease;
  • Rents cannot be increased, except for parts of rents that are calculated based on turnover;
  • Any breaches of a lease which are caused by the tenants’ compliance with Commonwealth or State COVID-19 laws are excused;
  • An obligation on both parties to retail leases to renegotiate in good faith the rent payable under the lease, based on the economic impacts of COVID-19.

The protections reflect those of the National Code of Conduct’s leasing principles. Impacted lessees are generally those who have received government assistance during COVID-19.

The amending Act also creates a new s 89, generally empowering creation of savings or transitional regulations on leases in response to COVID-19.

The commentary in the By Lawyers Leases guide and the relevant section of the 1001 Conveyancing Answers (NSW) publication has been amended to reflect these arrangements, including links to these new sections.

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.

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