ByLawyers News and Updates

Criminal records – Employment – FED

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Commentary on the disclosure of criminal records by job seekers has been added to the By Lawyers Employment guide. This useful enhancement covers ‘spent’ convictions in all Australian jurisdictions.

Employees and job candidates have rights under state legislation except in Victoria, and also under federal legislation, relating to their employer or prospective employer accessing their criminal records.

Employers normally have the right to conduct criminal record checks on current and prospective employees. This generally does not include ‘lapsed’ or ‘spent’ convictions.

All states, except Victoria, have different legislative schemes for convictions that lapse, commonly known as ‘spent’ convictions. Commonwealth crimes fall under federal legislation which also covers the ACT and the Northern Territory.

These legislative schemes prescribe when certain criminal convictions lapse, after which time they may not be used as a basis for making decisions about a person’s employment. This allows offenders to put their past behind them, provided they have had the required law-abiding period.

For example, under s 85ZV of the Crimes Act 1914 (Cth), an organisation is prohibited from taking into account or disclosing to others an individual’s past criminal conviction under federal law if it is defined as having lapsed. An individual is not required to disclose such a conviction when applying for employment. A lapsed conviction is defined as an adult conviction more than ten years old, or a juvenile conviction more than five years old. The maximum penalty for the original offence cannot exceed 30 months imprisonment.

There are exceptions, such as where people are applying for jobs that involve working with children.

For further information on ‘spent’ convictions and employment applications see the By Lawyers Employment guide.

JobKeeper – updates – FED

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The Federal Government has further amended the JobKeeper extension. These further changes to our previous post are shown in italics.

The employment stimulus package will continue for a further six months until 28 March 2021.

Amendments

There are changes to employer eligibility for JobKeeper and to the payment rates. The additional six-months is divided into two periods:

  • 28 September 2020 to 3 January 2021; and
  • 4 January 2021 to 28 March 2021.

Eligible employers will continue to claim a fortnightly payment of $1,500 per eligible employee until 27 September 2020.

Eligible employees will continue to receive a minimum of $1,500 per fortnight before tax from their employer until 27 September 2020.

From 28 September 2020 the payment rates will be reduced.

Eligibility for employers

From 28 September 2020 to 3 January 2021 businesses with turnover of less than $1 billion must experience a decline in turnover of 30% for the September 2020 quarter only compared to the equivalent 2019 quarter. The employer must have been in an employment relationship with each eligible employee on 1 March 2020 or 1 July 2020 and needs to confirm that they are currently employed. From 4 January 2021 to 28 March 2021, the December 2020 quarter only must fall by the relevant percentage compared to the December 2019 quarter.

JobKeeper payment rates

From 28 September to 3 January 2021 for employees who worked 20 hours or more per week on average in February 2020 or June 2020, employers will receive $1,200 per employee fortnightly. These employees must therefore be paid a minimum of $1,200 fortnightly before tax. For employees who worked less than 20 hours per week on average in February 2020 or June 2020, the employers will receive $750 per employee fortnightly. These employees must therefore be paid a minimum of $750 fortnightly before tax.

From 4 January 2021 to 28 March 2021 the relevant amounts fall from $1,200 to $1,000 and from $750 to $650.

If employees were employed for both February 2020 and June 2020 then the period with the higher number of hours worked is to be used.

More information

The JobKeeper section of the By Lawyers Dealing with COVID-19 Legal Issues – Some practical information commentary has been updated. A link to this helpful resource is available at the top of the matter plan in every By Lawyers guide.

 

JobKeeper – FED

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The Federal Government has confirmed the JobKeeper extension. The employment stimulus package will continue for a further six months until 28 March 2021.

Amendments

There are some changes to employer eligibility for JobKeeper and to the payment rates. The additional six-months is divided into two periods:

  • 28 September 2020 to 3 January 2021; and
  • 4 January 2021 to 28 March 2021.

Eligible employers will continue to claim a fortnightly payment of $1,500 per eligible employee until 27 September 2020.

Eligible employees will continue to receive a minimum of $1,500 per fortnight before tax from their employer until 27 September 2020.

From 28 September 2020 the payment rates will be reduced.

Eligibility for employers

From 28 September 2020 to 3 January 2021 businesses with turnover of less than $1 billion must experience a decline in turnover of 30% for each of the June and September quarters compared to their equivalent 2019 quarters. The employer must have been in an employment relationship with each eligible employee on 1 March 2020 and needs to confirm that they are currently employed. From 4 January 2021 to 28 March 2021, the December 2020 quarter must also have fallen by the relevant percentage compared to the December 2019 quarter.

JobKeeper payment rates

From 28 September to 3 January 2021 for employees who worked 20 hours or more per week on average in February 2020, employers will receive $1,200 per employee fortnightly. These employees must therefore be paid a minimum of $1,200 fortnightly before tax. For employees who worked less than 20 hours per week on average in February 2020, the employers will receive $750 per employee fortnightly. These employees must therefore be paid a minimum of $750 fortnightly before tax.

From 4 January 2021 to 28 March 2021 the relevant amounts fall from $1,200 to $1,000 and $750 to $650.

More information

The JobKeeper section of the By Lawyers Dealing with COVID-19 Legal Issues – Some practical information commentary has been updated. A link to this helpful resource is available at the top of the matter plan in every By Lawyers guide.

Staff handbook – All states

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The By Lawyers 101 Policies & Procedures guide has been re-named 101 Staff Handbook.

101 Staff Handbook is part of the By Lawyers Practice Management publication.

The handbook provides numerous policies and procedures to assist with management of a legal practice. These can be adopted or adapted by the firm as required.

Practitioners can also use this resource to assist their commercial clients with implementing appropriate policies and procedures in their businesses.

The extensive, practical content in the handbook covers all areas of legal practice. It includes the following most recent additions:

  • Managing client communications – Policies and procedures covering all aspects of firm communications including phone, email and written correspondence, plus a comprehensive complaint handling procedure.
  • Confidential information – A policy on protection of confidential information, which includes breaches.
  • Intellectual property – A simple policy 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.

 

1 July updates – All states

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1 July updates are a big focus for By Lawyers. This is because many Commonwealth and state legislative instruments provide for scheduled indexing of relevant monetary amounts and increases in government fees and charges.

These updates can include court filing fees, lodgement fees for property dealings, minimum weekly compensation amounts for Workers Compensation and various fines.

By Lawyers always monitor these changes for our subscribers. Each year we ensure that our publications are amended where necessary to reflect 1 July updates.

We also monitor and update for legislative indexing and increases which occur regularly at other times. These include 1 January changes and also other specific dates prescribed by some statutes.

The 1 July updates have been applied, or are in the process of being applied as they get released, to the following By Lawyers publications:

  • Conveyancing and Property;
  • Criminal;
  • Litigation;
  • Family;
  • Estates;
  • Injuries; and
  • Employment.

Stay updated with By Lawyers guides and precedents. Happy new financial year!

101 Family Law Answers – FED

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The By Lawyers reference manual 101 Family Law Answers has been updated with recent cases in the following sections:

Arbitration in family law

See Palgrove & Palgrove [2020] FCCA 846 at [12]-[29] for a discussion of arbitrability and the court’s jurisdiction to facilitate arbitration.

Injunctions

Dunworth & Falletti [2020] FamCA 178 where the balance of convenience favoured the grant of restraint.

Rahman & Rahman [2020] FamCA 156 where the husband’s appeal failed against an injunction that restrained him from leaving Australia until a lump sum payment was made.

Orders – Variation and the rule in Rice & Asplund

See Findlay & Reis [2020] FCCA 425 for an application to vary a parenting order, which was dismissed in accordance with the principles in Rice & Asplund.

Relocation

Franklyn & Franklyn [2019] FamCAFC 256 where a mother’s unilateral relocation was allowed on appeal, as she was still able to adhere to interim consent orders for the father’s fortnightly contact.

Soulos & Sorbo [2019] FamCAFC 231 where the father’s appeal was allowed to set aside the parenting orders permitting the mother and child to relocate overseas.

Section 75(2) factors – Disparity in financial positions

In Metzer & Metzer [2020] FCCA 119 the wife was unable to establish a 10% likely loss of earnings on the evidence presented. An adjustment of 2% only was made in favour of the wife.

Five factors were listed at [182] that are usually considered when determining residual earning capacity:

  1. physical capacity, including the reasonable restrictions required by reason of injuries;
  2. psychological capacity, taking into account any necessary restrictions, of which there was no evidence in this case;
  3. vocational capacity, for suitable jobs within suitable occupations, including all of her education, training and experience and transferable skills;
  4. labour market, including factors such as the existence of such jobs in the real world labour market which is to be considered, including any barriers to entry and competitiveness including by reason of work history and age; and
  5. earnings, including the likely range of earnings for such available jobs by reference to reliable published labour market statistics or current labour market research information.

101 Family Law Answers is a valuable resource for practitioners. It is available as a related guide and in the reference materials folder in all By Lawyers Family Law publications. It provides more detailed information and relevant cases on the various Family Law matter types – Property Settlement, Children, Financial Agreements and Divorce. It also covers some general procedural issues and the enforcement of orders.

Transfer of real property – Family Law – FED

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Often the resolution of Family Law matters requires a transfer of real property between the parties. Transfers pursuant to the Family Law Act 1975 attract transfer duty exemptions or the payment of only nominal duty. Each state and territory has its own process to effect the transfer of real property in the context of relationship breakdowns.

Information has been added to the 101 Family Law Answers reference manual which helpfully sets out the processes for the transfer of real property due to relationship breakdown. The relevant stamp or transfer duty information for each state or territory is also available in 101 Family Law Answers.

The necessary forms for transferring property between parties are accessible from the Property Settlement matter plan. They are located in the Library of real property transfer and duties forms in the Settling it early or Finalising the matter folders.

The process is the same whether the relationship was a marriage or a de facto relationship.

101 Family Law Answers is available as a related guide in all By Lawyers Family Law publications. It provides more detailed information and relevant cases on the various Family Law matter types – Property Settlement, Children, Financial Agreements and Divorce. It also covers some general procedural issues and the enforcement of orders.

JobKeeper scheme – FED

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Details of the Federal government’s JobKeeper scheme have been added to By Lawyers Dealing with COVID-19 legal issues – Some practical information publication.

JobKeeper payment stimulus package

The purpose of the JobKeeper package is to assist employers to retain their employees and improve the viability of businesses during the COVID-19 pandemic.

Under the scheme, employers will receive $1,500 per employee fortnightly. Employees must be paid a minimum of $1,500 fortnightly before tax. The JobKeeper payment will be available from 30 March 2020 until 27 September 2020.

Employers pay their employees as usual and then get reimbursed by the ATO, monthly in arrears.

The new commentary covers the important aspects of the scheme. These include the eligibility criteria for both employers and employees. There are also answers to frequently asked questions.

A link is provided to the ATO website which sets out how to Enrol for the JobKeeper payment.

New powers for employers under the JobKeeper scheme

The Federal parliament has complemented the JobKeeper scheme by giving new powers to employers covered by the scheme. The Fair Work Act has been amended by the insertion of Part 6-4C that allows an employer to temporarily modify employment terms and conditions, if they are eligible for the JobKeeper scheme. This is referred to as an employer giving a ‘JobKeeper enabling direction’ to a particular employee.

The new powers include options for workforce flexibility and reducing workforce costs. This gives eligible employers the ability to stand down employees or reduce their hours, change the duties they perform, or change their location of work. The amendments also allow an eligible employer to make an agreement with an employee about work days or times, as well as the employee taking annual leave, including at half pay.

Before a JobKeeper direction can be given, employers must meet minimum requirements. For example, employers need to satisfy consultation requirements which includes notifying the employee at least three days before making a JobKeeper enabling direction, or a lesser time by agreement. No forms have been prescribed for this purpose. By Lawyers has provided example content letters, which are available from within the commentary.

These amendments enable the Fair Work Commission to conciliate and arbitrate disputes about a JobKeeper direction or request.

For more information about the JobKeeper scheme refer to Dealing with COVID-19 legal issues – Some practical information, which is available in all By Lawyers guides.

Opportunities for law firms – All states

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Opportunities for law firms during the COVID-19 period

This time of reduced activity presents opportunities for law firms to find efficiencies, upskill staff and switch focus to diversify into other practice areas.

Despite the encouragement to self-help with the writings of such luminaries as Stephen Covey the one habit that remains rigid is the resistance to change. Covey’s advice is to work on the practice not just in the practice. This is an ideal time to do so.

Office organisation provides the basis of profitable and worry-free practice. Profit is not necessarily related to size or location or how busy a firm may be. Busy firms are often poor profit performers due to poor managerial practices. The more profitable firms simply better organise and manage their practices. This is achievable through the use of LEAP’s matter and accounts management software and By Lawyers Practice Management Guide and Office Policies, both uniquely suitable for handling matters remotely.

Accompanying work on office organisation is the opportunity to supplement the firm’s precedents, which are generally dependent on the personal knowledge and style of the practitioner and are often accessed from previously closed files or written anew each time. This practice can now be improved and supplemented with By Lawyers professionally drafted precedent packages ensuring complete subject matter coverage and consistency.

By Lawyers resources

By Lawyers have the resources to enable advantage to be taken of these opportunities for law firms. The By Lawyers precedents are presented in sequential order in a plan for the conduct of each matter from opening to closing each file from compliant disclosures and initial letters through all required documents to final letters. All of the precedents are contained within the LEAP software and have been automated with fields and codes.

To assist practitioners in the practice and law behind every precedent By Lawyers present a unique system of integrating research commentary with the precedents with outgoing links to legislation and case law when required. This system allows even the rustiest practitioner to successfully and compliantly navigate a less familiar area of law and satisfy the client by producing the desired outcomes on time. At present it is difficult to turn away any work simply because it might be outside a firm’s normal experience. All new work creates more new work. Witness the family law client that needs new wills and the sale and purchase of a home or a business purchaser who needs a company shareholders agreement or a partnership agreement.

By Lawyers daily keeps up to date with changes to law and practice removing this concern from then firm. Ideal for staff training, undertaking new work and being more productive By Lawyers guides are only available as a companion product to LEAP Legal Software and are perfect for those working from home or in the office.

Companies during COVID-19 – FED

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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.

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