ByLawyers News and Updates

Companies during COVID-19 – FED

by

The Federal government has made things easier for companies during COVID-19. Amendments to the Corporations Act enable companies to circumvent formal requirements which made signing documents and holding meetings in the current environment difficult or impossible. These practical temporary measures apply to companies during COVID-19 and are set for repeal on 6 November 2020.

Execution of documents by companies during COVID-19

Amendments introduced by the Corporations (Coronavirus Economic Response) Determination (No. 1) 2020 that commenced on 6 May 2020 provide for execution of documents by companies during COVID-19. The amendments mean that a company can execute a document electronically under s 127 of the Corporations Act 2001. The method used must be appropriate in the circumstances, identify the person in the electronic communication and indicate the person’s intention in respect of the contents of the document. The Determination also provides for the execution of a document requiring a common seal, to be executed otherwise: s 6(3).

Meetings of companies during COVID-19

Amendments introduced by the Corporations (Coronavirus Economic Response) Determination (No. 1) 2020 that commenced on 6 May 2020 provide for meetings of companies during COVID-19. The amendments modify the provisions of the Corporations Act 2001 and the Corporations Regulations 2001, or any equivalent provisions in a company constitution, that require or permit a meeting to be held, or that regulate giving notice of a meeting or the conduct of a meeting. These amendments mean that:

  • a meeting can be held using one or more technologies that give all persons entitled to attend a reasonable opportunity to participate without being physically present in the same place. This would include platforms such as Zoom, Skype or Microsoft Teams;
  • all persons thus participating in the meeting are taken for all purposes, including quorum requirements, to be present at the meeting;
  • a vote taken at the meeting must be taken on a poll, and not on a show of hands, by using one or more technologies to give each person entitled to vote the opportunity to participate in the vote in real time and, where practicable, by recording their vote in advance of the meeting;
  • a requirement to allow persons attending the meeting to speak, such as asking questions, may be complied with by using one or more technologies that allow that opportunity;
  • a proxy may be appointed using one or more technologies specified in the notice of the meeting; and
  • notice of a meeting may be given by using one or more technologies to communicate along with any other information to be provided, or details of an online location where the content can be viewed or downloaded. For example, a company could send members an email setting out or attaching a notice of a meeting and any other material relating to the meeting, or else providing a link to where the notice and the other material can be viewed or downloaded.
  • a notice of meeting must include information about how those entitled to attend can participate in the meeting, including how they can vote and speak at the meeting.

If notice of the meeting has been given before 6 May 2020 a fresh notice of the meeting that includes the information referred to above must be issued at least 7 days before the meeting is held.

Updates

Keep up-to-date with our ‘Dealing with COVID-19 legal issues – Some practical information‘ commentary. This can be found at the top of each By Lawyers Guide.

Electronic Transactions – NSW

by

Schedule 1 to the Electronic Transactions Regulation 2017 (NSW) came into operation on 22 April 2020 . It allows for witnessing of documents by audio visual link in New South Wales.

This is a practical step by NSW parliament. It allows wills, powers of attorney, deeds and agreements, enduring guardianship appointments, affidavits and statutory declarations to be witnessed through audio visual means. Formats such as Zoom, Skype or Microsoft Teams, which integrates with LEAP, can be used.

Practitioners can send a document to a client by email, if the client has printing facilities, or by post. A meeting can then be arranged via any audio visual format to witness the client signing the document.

Under the regulation the practitioner witness must:

  • Observe the client sign the document in real time – this may involve ensuring that the practitioner can view the document on screen as the signature is made;
  • Sign the document or a copy of the document themselves;
  • Be reasonably satisfied that the document that they sign is the same document, or a copy of the document, signed by the client; and
  • Endorse the document, or copy, with a statement specifying the method used to witness the signature and that the document was witnessed in accordance with the regulation.

The following wording is suggested for the endorsement:

This document was signed in counterpart and witnessed over audio visual link in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017.

The regulation allows a witness to sign a counterpart of the document, or have the client scan and email the signed document back to the practitioner, who may then print and witness the copy. Of course, the client may also post the original back to the practitioner, who may then sign the original document on receipt.

The regulation also allows for swearing or affirming the contents of an affidavit by audio visual link.

This is a temporary, COVID-19 related measure. Schedule 1 expires 6 months from the date of commencement, being 22 October 2020.

Variation of lease – All states

by

Two new precedent deeds for variation of lease have been added to all By Lawyers Leases publications.

The new precedents are:

  • Deed of variation of lease – Deferral of rental payments. This deed provides for the deferral of rental payments for an agreed period. It also provides for the lessor to access the security deposit/bond/guarantee, to satisfy part-payment of rent during this period. It is suitable for general use when required.
  • Deed of variation of lease – Deferral of rental payments during COVID 19. This deed complies with the National Cabinet Code of Conduct that was released on 7 April 2020 to govern commercial, industrial and retail tenancies affected by the COVID-19 pandemic.

Both of these new precedents deeds cover arrangements for future payments. Once the deferral period has ended, they provide for the repayment of deferred rent in full.

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

Guide to Commonwealth offences – All states

by

A new Guide to Commonwealth offences dealt with in state magistrates’ courts has been added to all By Lawyers Criminal publications.

This helpful new commentary and additional precedents will assist practitioners in advising and representing clients charged with offences under the Crimes Act 1914 (Cth) and the Commonwealth Criminal Code.

The new commentary sets out the procedure for summary and indictable Commonwealth charges in state courts, from bail considerations to sentencing.

The possible sentencing options are covered in detail and there is a very useful table of the Commonwealth offences most frequently encountered in state magistrates’ courts.

New precedents include:

  • Example written submissions in support of an application for discharge of an offender without proceeding to conviction; and
  • Letter to client after sentence – providing for various outcomes.

All existing Retainer Instructions for criminal and bail matters in the respective state Criminal Guides have been enhanced to include Commonwealth offences.

The new Guide to Commonwealth offences can be found in the Related Guides drop-down menu of the Legal Guides tab.

Coronavirus legal issues – All states

by

Dealing with coronavirus legal issues is currently a major challenge for legal practitioners everywhere. A great deal of emergency legislation has been passed already in response to the pandemic, both temporary and permanent. Temporary arrangements are daily being introduced by courts, land registries and other authorities to allow business to be transacted despite the need for social distancing. There are also practical measures that can and must be taken to allow practitioners to continue to provide their services and assist their clients.

By Lawyers have produced a publication which brings together in one place a collection of practical information to help the profession at this time. Dealing with coronavirus legal issues is a valuable resource for lawyers. It is now available by clicking on the link at the top of the matter plan in every By Lawyers Guide.

The content within Dealing with coronavirus legal issues is also published here on our Obiter News and Updates site.

The Dealing with coronavirus legal issues publication will be updated and enhanced as the response to the pandemic develops. As always, By Lawyers will keep practitioners abreast of ongoing changes and provide our trademark practical assistance to guide the profession in these difficult times.

Policies and procedures – All states

by

New content has been added to the By Lawyers reference manual 101 Policies and Procedures, after a recent author review.

The new content covers:

  • Managing client communications – Policies and procedures covering all aspects of firm communications including phone, email and written correspondence. In addition, a comprehensive complaint-handling procedure has been included.
  • Confidential information – A policy on protection of confidential information has been added, which includes breaches.
  • Intellectual property – A simple policy has been added for protecting the firm’s existing IP and dealing with any new IP created by team members in the course of their employment.
  • Working from home – A policy which clarifies the rights and obligations of team members and the firm in relation to working from home arrangements.

The By Lawyers 101 Policies and Procedures manual makes it easy for law firms to adopt, modify and enhance their in-house policies and procedures. Practitioners can also use this resource to assist clients with implementing appropriate policies and procedures in their businesses.

In these difficult times it is more important than ever to ensure that all team members are clear about their obligations and are on the same page when communicating with clients, handling confidential information and working from home. These enhancements can assist all law firms with their practice management.

Commonwealth offences – All states

by

Commentary on Commonwealth offences dealt with in state magistrates’ courts has been added to all By Lawyers Criminal Guides.

This new commentary and additional precedents will assist practitioners advising and representing clients charged with offences under the Crimes Act 1914 (Cth) and the Commonwealth Criminal Code.

The new commentary sets out the procedure for summary and indictable Commonwealth charges in state courts, from bail considerations to sentencing.

The possible sentencing options are covered in detail and there is a very helpful table of the Commonwealth offences most frequently encountered in state magistrates’ courts.

New precedents include:

  • Example written submissions in support of an application for discharge of an offender without proceeding to conviction; and
  • Letter to client after sentence – providing for various outcomes.

All existing Retainer Instructions for criminal and bail matters have been enhanced to include Commonwealth offences.

The new content can be found in the IF REQUIRED – COMMONWEALTH OFFENCES folder on the matter plan in every By Lawyers Criminal law guide.

 

Remote signing – All states

by

Practical issues relating to the remote signing of documents such as agreements, deeds, wills and powers of attorney by companies and individuals

Remote signing of documents has become an important issue for solicitors and their clients due to the coronavirus pandemic. Face to face meetings are now largely excluded meaning clients are unable to attend at their lawyer’s office to sign documents.

Documents which must be signed need to be mailed or emailed to clients and then signed remotely.

Signatures

Signatures establish the identity of the person signing and their intention to create legal relations.  It is this intention indicated by placing their mark on a document that gives it its legal character or functionality, not the mark itself. There is no real distinction made at law between handwritten signatures, marks or electronic signatures. Signing a document electronically might be done by typing one’s name, pasting an image of one’s usual signature, using a stylus or finger on a touchscreen or using e-signing software.

Agreements

An agreement can be in electronic form and executed electronically, if witnessing is not required.

Most contracts, such as the contract for the sale of land, do not require a witness.

If witnessing is required, it can be done electronically provided the witness is present when the deed is signed. If witnessing is not possible this way due to virus related isolation, then the counterparty will need to agree to another method.

Electronic conveyancing requirements

A Client Authorisation Form may be electronically signed, subject to specific jurisdictional requirements. Whilst the Verification of Identity Standard requires a face-to-face in person interview, compliance with the standard is not mandatory and taking ‘reasonable steps’ to verify the identity of the client, such as by video meeting, is sufficient.

The By Lawyers Contract for Sale of Land in NSW and in VIC allows for electronic exchange and electronic settlement in compliance with electronic transactions legislation and the Verification of Identity Standard rules.

Deeds

Deeds usually require signatures to be witnessed and to be in writing.

An electronically-signed deed that is immediately printed out on paper may satisfy the common law requirement for paper with the first printed version being the original deed rather than a copy. However, parties to a transaction are better served to agree in advance to the acceptability of a particular form of deed and its electronic signature. Similarly, checking before execution  the requirements of organisations such as registries with whom the deeds must be registered will ensure their acceptability.

As mentioned above, witnessing can be electronic provided the witness is present when the deed is signed. If this is not possible then the counterparty will need to agree to another method.

An acceptable method might be by video attendance of the party’s lawyer who on return of the signed deed certifies it to be identical to the one submitted for signing and that the signing was witnessed by video.

Wills

The issue with executing wills remotely given social distancing, is the availability of two witnesses who are not themselves beneficiaries.

Where the required two disinterested witnesses are not available, the will may be executed informally, by the testator, who after signing it, returns it to their solicitor with a statement that they intend it to be their last will and testament. Accompanied by an affidavit explaining the signing in the prevailing circumstances, perhaps with video witnessing, a grant of probate of the informal will is likely to be made if required. Once the pandemic ends the will can be properly signed.

Powers of attorney

A general power of attorney does not need a witness and can be signed remotely.

However, an enduring power of attorney must be witnessed by a prescribed witness – usually the principal’s solicitor – who must also certify that they explained the effect of the document to the principal and that they appeared to understand it. On that basis remote signing is technically impossible.

Where a face to face meeting – even one at an outdoor location with appropriate distancing – is not possible, the document could be sent to the client by post or email for their written or electronic signature. Their lawyer could hold a video conference with the client and explain the document and see it signed by their client. When returned the lawyer can certify that they gave the explanation and were satisfied as to the principal’s understanding, but whilst unable to personally witness the document being signed, they witnessed the signing in video conference.

In this practical way the power is likely to be acceptable in most cases where there is no issue raised.

Where this approach is taken, the risks that the document may not be effective need to be explained to the client and appropriate file notes made.

Appointments of enduring guardian and Advance medical directives

The same witnessing and certification procedures apply to these instruments as for enduring powers of attorney. Similar practical, emergency measures might be undertaken.

Company execution

It is arguable whether a company can execute a document electronically under s 127 of the Corporations Act 2001.

However, in this busy world of commerce it is common for documents to be signed by duly authorised officers, or one director, or by a duly appointed attorney.

Generally

The ongoing response to Coronavirus means that emergency measures are rapidly being introduced to modify the usual signing and witnessing requirements. For example, some courts will currently accept unsigned affidavits on the basis that they will later be formally executed if necessary. The website of each court should be referred to as required.

 

Keep up-to-date with our latest COVID-19 News & Updates

Duration of orders – ADVOs – NSW

by

The duration of orders for apprehended domestic violence (ADVOs) provided for in the Crimes (Domestic and Personal Violence) Act 2007 has been amended.

From 28 March 2020 the default duration of orders increases to 2 years for adult defendants. It remains 12 months for a defendant who was under 18 years of age at the time the application was first made.

Longer periods can apply if the court considers it necessary. Final orders can be for any period, including an indefinite period.

Unless the court specifies a different period, an order remains in force for the default period under s 79A of the Act. The parties can agree on a different period and the court can make such an order by consent.

Section 79A also sets out the matters to which the court is to have regard when deciding on the period of an order.

See Duration of orders in the commentary in the By Lawyers Apprehended Violence Order guide, within the NSW Criminal – Local Court publication, for further detail.

Employment and the Coronavirus – FED

by

Many questions arise at the moment about Employment and the Coronavirus. The By Lawyers Employment Law Guide and the 101 Employment Law Answers reference manual located within that publication can assist subscribers to advise their clients, whether employers or employees.

In addition, our author Brad Petley, an accredited specialist in Workplace Relations, has prepared a timely article on the issues that practitioners and their clients need to consider. This article has been added to the By Lawyers Employment Law Guide, under the Reference Materials folder. The text of Mr Petley’s article is reproduced here for general assistance:

Employer obligations

Employers have legal obligations to ensure the health and safety of their employees and contractors, and also to ensure that the health and safety of members of the public is not put at risk from the conduct of their business or undertaking. This includes managing the risk of exposure to and spread of Coronavirus (COVID-19) in the workplace.

Health risks such as Coronavirus need to be carefully and sensitively managed, as they can give rise to a risk of claims of discrimination, unfair treatment and even unfair dismissal.

Therefore, employers should ensure they act fairly and on the basis of reliable and current medical information. Similarly, employers should not permit or encourage their employees to target or treat adversely any particular demographic in the workplace.

There are legal protections against discrimination or adverse action based on race, ethnicity, national origin or impairment – which can include disease or illness.  In an atmosphere of heightened anxiety due to the impact of Coronavirus, it important that employees’ emotions and conduct are managed by clear and open commu­nication from senior manage­ment.

The rapidly changing situation with the Coronavirus pandemic means that many employers will be focused on reducing their labour costs in the current business climate.  To reduce labour costs employers may consider options such as:

  • Asking employees to take their accrued paid leave such as annual leave and long service leave;
  • Implementing stand-downs pursuant to s 524 of the Fair Work Act 2009 (Cth); or
  • Implementing redundancies.

Leave

Under the Fair Work Act full-time and part-time national system employees are entitled to 10 days personal/carer’s leave each year of service. The entitlement accumulates progressively.

Employees who access their accrued personal/carer’s leave due to injury or illness such as Coronavirus, are considered to be temporarily absent from work and, as such, are protected from dismissal because of their illness or injury: see s 352.

That does not mean that an employee on personal/carer’s leave, who is suffering from Coronavirus, cannot be required to obey reasonable and lawful OHS based instructions intended to minimise the risk of the person spreading disease in the workplace.  For example, an employee diagnosed with COVID-19 who disobeyed an instruction not to attend the workplace unless cleared medically would risk disciplinary action.

Stand-down

An employer may stand down an employee during a period in which the employee cannot usefully be employed due to circumstances for which the employer cannot reasonably be held responsible.

The employer does not pay wages for the period of a stand down. This is not a deferment but a pause during the stand-down in the obligation to pay wages.

An employee stood down continues to accrue entitlements to annual leave and personal/carer’s leave under the National Employment Standards, as well as an entitlement to a public holiday that falls on a day the employee would ordinarily work during the stand-down period: see. s 524.

Redundancy

For a redundancy-based dismissal, employees who are dismissed on the grounds of a ‘genuine redundancy’ are not eligible to bring an unfair dismissal application: see s 385(d).

A genuine redundancy occurs where:

  • the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
  • the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

A genuine redundancy does not occur if it would have been reasonable in all the circumstances for the person to be redeployed within:

  • the employer’s enterprise; or
  • the enterprise of an associated entity of the employer.

Dismissal

When interviewing a client who claims to have been dismissed due to the Coronavirus, it is important to ascertain the basis of the client’s belief.

If there is evidence supporting the claim that the virus was the reason for the dismissal, then a claim for unfair dismissal or breach of general protections provisions may be available.

 

– Brad Petley solicitor is the main author of the By Lawyers Employment Law guides. He will continue to update our subscribers regarding Employment and the Coronavirus as circumstances demand.

 

Keep up-to-date with our latest COVID-19 News & Updates

Connect with us