ByLawyers News and Updates

Employment and the Coronavirus – FED

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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

Temporary changes to insolvency laws – FED

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The Federal Government has made temporary changes to insolvency laws under the Coronavirus Economic Response Package Omnibus Act 2020, aimed at relieving current economic pressures on individuals and companies.

The Act commenced on 25 March 2020.

These temporary changes to insolvency laws are as follows:

Bankruptcy

The time for a debtor to comply with a bankruptcy notice has been extended from 21 days to six months. The threshold for initiating bankruptcy proceedings increases from $5,000 to $20,000. These changes will apply for six months from commencement of the Act.

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 has been extended from 21 days to six months. The threshold to issue a statutory demand has been increased from $2,000 to $20,000. These changes will apply until 25 September 2020.

Safe harbour

A new, 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 25 September 2020.

Practitioners should keep these changes in mind for the next six months and be aware of the end date, which is 25 September 2020.

Alerts have been added to the By Lawyers Insolvency – Bankruptcy of Individuals, Insolvency – Company Liquidation and Companies commentaries notifying subscribers of these changes.

 

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

Assisting clients to manage their affairs – All states

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Assisting clients to manage their affairs

With the threat and uncertainty surrounding the Coronavirus many practitioners will be asked to prepare documents assisting clients to manage their affairs should the need arise.

By Lawyers commentary and precedents for Wills, Powers of Attorney, Guardianship and Directives across every state of Australia are available to help practitioners to respond to these requests.

In brief:

  • A will provides for the administration and distribution of a person’s property in the event of their death.
  • A power of attorney enables a person to empower someone they trust to conduct their legal and financial affairs on request. However, this power ceases should the principal lose capacity to authorise its use. This power can be witnessed by any adult.
  • An enduring power of attorney enables a person to empower someone they trust to conduct their legal and financial affairs without specific authorisation should the principal become unable to conduct their own affairs. Note: This power requires specific witnessing.
  • An enduring guardian or a medical power or an advance care directive. These powers are similar to an enduring power of attorney in that they allow a person to choose someone they trust to manage their health and lifestyle decisions, but not their financial affairs, should they become unable to do so themselves.

Helpful resources

The By Lawyers Wills publications provide detailed retainer instructions which can also be signed as an informal will in emergency situations should the need arise. Otherwise a will should be witnessed by two uninterested parties over the age of 18. The By Lawyers publication provides signing clauses for wills by handicapped, blind, non-English speaking and illiterate testators.

Detailed signing instructions are available and can be emailed to the client with the will should personal attendance at the office be difficult or undesirable.

The guides contain a full suite of wills for single people, people with a partner and for people with blended families. There are testamentary trust wills as well as international wills.

Practitioners will also find a full suite of the other important estate planning documents, for both financial and health & lifestyle matters.

There are practical and detailed commentaries to assist the practitioner to quickly and efficiently advise their clients on any issue of concern to them.  The retainer instructions and ‘to do’ lists ensure thorough and complete attention to all relevant considerations.

For further information

Please don’t hesitate to contact us at askus@bylawyers.com.au

Family provision claims – Acting for the Plaintiff (NSW)

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A full review of the By Lawyers Family provision claims – Acting for the plaintiff guide has been conducted.

The review ensures that all content is in line with current law and practice.

Improved content and new precedents

Updates and enhancements include:

  • a re-organised and streamlined commentary that better caters for current practice;
  • additional assistance to help the practitioner get the matter underway;
  • enhanced commentary on preparing for and attending at mediation;
  • an updated matter plan that includes links to important sections of the commentary; and
  • six new precedents – additional initial letters which cater for different circumstances regarding the estate.

101 Succession Answers (NSW)

Subscribers are reminded that the By Lawyers reference manual 101 Succession Answers (NSW) also has a large and helpful section on Family provision claims. This includes many links to relevant sections of the legislation, plus links to leading and recent cases on various aspects of Family provision claims.

101 Succession Answers (NSW) is found at the top of the Family provision claims – Acting for the plaintiff matter plan and also in the Reference materials folder.

Keep up to date with By Lawyers

These updates to our Family provision claims – Acting for the plaintiff guide, and the regular updates to 101 Succession Answers (NSW) with the latest cases on Family provision claims, are part of By Lawyers commitment to the continual enhancement of our publications. By Lawyers subscribers can be confident that their guides and precedents are always kept up to date so they can enjoy practice more.

CLE/CPD requirements – All states

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Timely compliance with CLE/CPD requirements has suddenly become a challenge for many small law firms. This is a result of the cancellation of seminars due to COVID-19.

With their ability to attend external events unexpectedly curtailed, the burden of professional education has reverted to firms to manage in-house. And they must do so within the strictures of remaining safe from virus risks.

Fortunately, By Lawyers can make this assist.

In-house training for CLE/CPD requirements

The By Lawyers guides are a great resource for professional education.

Whether in the office or working from home, lawyers can:

  • Read the By Lawyers Commentaries – whether relevant to their current matters, or in areas of law that they seek to brush-up on, or move into;
  • Delve into the By Lawyers Reference manuals, such as 1001 Conveyancing Answers, 101 Family Law Answers or 101 Subpoena Answers – providing detailed information and current case law related to specific client issues, or general legal concepts;
  • Review and practice drafting more complex documents in various areas of law, using By Lawyers precedents – such as an affidavit and example content in a litigation matter type;
  • Have a ‘Q & A’ session with a colleague by email or video-link – where each lawyer raises questions about practice and procedure or points of law for the other person to answer from the By Lawyers guides;
  • Present to the other members of the firm on-line by referencing or screen-sharing the relevant By Lawyers guide.

Even the compulsory units on practice management and business skills can be addressed via the By Lawyers Practice Management Guide and the related Reference Manual 101 Policies and Procedures. With sections on ethics, business planning and financial management, lawyers can use these resources to present to their colleagues or read for their own benefit.

The breadth, depth and easy accessibility of By Lawyers content makes it easy for firms to comply with in-house CLE/CPD requirements under their own steam, in any way that suits them.

These are tough times for everyone; lawyers in legal practices included. Complying with the relevant CLE/CPD requirements is a real challenge. By Lawyers makes it easier.

Out of time claims – Workers Comp – NSW

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Out of time claims under the Workers Compensation Act 1987 were considered in the recent Supreme Court decision of Hole v Gregory Ronald Lyons trading as Greg Lyons Building Constructions [2020] NSWSC 102.

Section 151D (2) of the Act provides that common law claims must be brought within 3 years of the date of injury. Out of time claims require the leave of the court in which the claim is brought. In Hole, Button J granted leave to commence proceedings some four years out of time on the basis that the plaintiff had adequately explained the delay.

Interestingly, the essence of the explanation was the plaintiff’s extended engagement in the claims process under the Workplace Injury Management and Workers Compensation Act 1998. The Court noted that: ‘…there is a whole structure, external to the Court in which litigation is to commence, in which one must engage in an effort to have the matter resolved away from Court.’

In that context, the Court also noted that this was not a case where anybody involved in the litigation was ‘taken by surprise‘, or prejudiced by the delay.

In its consideration of the matter the Court followed the principles relating to a grant of leave for out of time claims set out in Smith v Grant [2006] NSWCA 244.

These helpful cases have been added to the By Lawyers Workers Compensation (NSW) Guide. A link to s 151D has also been added to the Retainer Instructions precedent on the matter plan in that Guide.

‘To do’ list – Family provision claims – NSW

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New precedent ‘To do’ lists have been added to the By Lawyers Family Provision Claims – Acting for the plaintiff and Acting for the estate Guides for NSW.

Many subscribers would be familiar with By Lawyers helpful ‘To do’ lists, which serve as a checklist for progress through the matter. The ‘To do’ list ensures no critical steps are missed and allows practitioners to mark-off each step and make sure they know where the matter is up to.

The new ‘To do’ lists for Family Provision claims prompts for each of the critical steps at each stage of the matter, namely:

  • Getting the matter underway – including costs disclosure
  • Settling it early – initial offers of settlement
  • The claim – preparing and filing the summons and plaintiff’s affidavit OR notice of appearance and notice to eligible persons
  • The first directions hearing
  • Mediation
  • Next directions hearing
  • Preparation for hearing
  • Hearing
  • After hearing – including advice on appeal rights.

These new precedents will assist lawyers in Family Provision claims to manage their matters, whether acting for the claimant or the estate.

Family Provision – 101 Succession Answers (NSW)

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Two new cases on Family Provision claims have been added to the By Lawyers Reference manual 101 Succession Answers (NSW).

Affidavits and Disclosure

In Megerditchian v Khatchadourian [2019] NSWSC 1870 the court considered a number of important procedural issues, including the requirement that the plaintiff file an affidavit at the time of filing their summons and the issues relating to the form and evidentiary status of that affidavit. At [159]  the court stated:

… the purpose of the affidavit prescribed by the Practice Note is to identify, in broad terms, the plaintiff’s evidence concerning the factors enumerated in s 60(2) which may bear on the application. It will not necessarily be exhaustive, or all in admissible form, and it may be supplemented by further evidence as the case moves towards hearing.

The court also considered the plaintiff’s duty of disclosure. At [145] the court noted that:

It is well established that, in some circumstances, where a plaintiff in a family provision application fails to make full and proper disclosure of his or her financial position, the Court will refuse the application.

This case has been added to the Affidavits and Disclosure sections under Family Provision claims in 101 Succession Answers (NSW).

Disabled adult child claimant

In Cowap v Cowap [2020] NSWCA 19 the Court of Appeal considered the competing claims on an estate of a disabled adult son, the applicant/respondent, and an elderly widow, the respondent/appellant. The son was in fact a child of the widow’s previous marriage but had been adopted by the deceased.

The court at first instance granted the son provision of $600,000. This meant the widow had to sell the former matrimonial home where she had long resided with the deceased and to which she had significant emotional attachment. The son had ‘severe and permanent disability, including cognitive impairment’ because of which there was strong evidence in support of his need for provision. The widow, to whom the entire estate had been left, also had a strong claim on the estate as it was a long marriage.

The sale of the property allowed the widow to purchase another smaller property and maintain her existing income. The judge at first instance, in granting provision to the son, decided that was an appropriate outcome given the 91-year-old widow would inevitably leave the property in due course in any event.

The Court of Appeal held that the first instance judge had made no error and dismissed the appeal.

Of further interest in this case is that the Court of Appeal refused to admit on the appeal any new evidence of valuation of the property. [35].

This case has been added to the Adult Children section under Family Provision claims in 101 Succession Answers (NSW).

101 Succession Answers – NSW

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Following an author review new cases have been added and other enhancements made to the By Lawyers Reference Manual 101 Succession Answers (NSW).

Nobarani v Mariconte [2018] HCA 36

This case supports the requirement of an ‘interested’ party wishing to challenge the validity of a will to show that they have rights which will be affected by the disputed grant of probate or administration.

Re Estates Brooker-Pain and Soulos [2019] NSWSC 671

Considerations regarding disclosure of documents and information in contested probate proceedings were extensively discussed. This case analysed the applicable law, practice and procedure in the context of applications to set aside subpoenas and notices to produce which called for documents relating to the making of the disputed wills. This included solicitors’ notes and files. The interplay between subpoenas, the court’s Practice Note SC Eq 11 and case management orders was examined in detail.

The court addressed the determination of ‘legitimate forensic purpose’ in such cases, especially where pleadings had not closed and the issues in dispute were uncertain. This decision has therefore been added to the By Lawyers Reference Manual 101 Subpoena Answers too.

The court also commented on the practice of sending ‘Larke v Nugus’ letters to ‘…a person involved in the preparation or execution of a will…[seeking] disclosures about the circumstances in which a will was prepared or executed’.

Application of NSW Trustee & Guardian; Estate of Dudley Keith Vaughn [2019] NSWSC 850 and In the Estate of Hansie Hart [2019] ACTSC 317

These two recent cases each dealt with issues relating to the presumption of death.

Gregory Joseph Mills as trustee v Julie Elizabeth Mills and Ors [2018] NSWSC 363

This case is instructive as to the considerations the court applies when giving judicial advice and determining construction issues on testamentary trusts.

Finnegan & Anor v Garner & Ors [2019] QSC 100

Here the estate faced claims which, if they were resolved by litigation would result in the estate being consumed by legal costs. The court noted, at [10], that:

It is the duty of trustees of the estate not to embark upon expensive litigation which will have the effect of depleting the estate. In Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand Gummow ACJ, Kirby, Hayne and Heydon JJ said that: “a trustee who is sued should take no step in defence of the suit without first obtaining judicial advice about whether it is proper to defend the proceedings.”

Koellner v Spicer [2019] NSWSC 1571

On a family provision claim, an adult child with a medical condition and meagre financial resources was awarded a 35% legacy from the reasonably small estate even though the deceased had expressly excluded him on the basis they had no relationship.

Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843

The court emphasised, including by reference to the ‘overriding principles’ of the Civil Procedure Act, the duty on parties to contain costs in family provision litigation. The court heavily criticised disproportionate costs being incurred.

 

Like all By Lawyers Reference Materials, 101 Succession Answers (NSW) is updated regularly to cover developments in case law and procedure.

Land tax – NSW

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Land tax NSW – Increases to threshold values

Land tax thresholds are indexed to rise on 1 January each year.

The 2020 threshold combined land value will increase to $734,000 for all liable land. Special trusts and non-concessional companies are excepted.

A marginal tax rate of 1.6% of the aggregate taxable value above the tax-free threshold plus $100 applies.

If the aggregate taxable value exceeds the premium rate threshold of $4,488,000 then $60,164 is payable plus a marginal tax rate of 2% over that amount.

All relevant commentary and precedents in By Lawyers Conveyancing & Property Guides have been updated accordingly.

By Lawyers wish everyone a happy holiday season.

 

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