ByLawyers News and Updates

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.

1 July updates – All states

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1 July updates are always a big focus for By Lawyers. Many Commonwealth and state legislative instruments provide for the scheduled indexing of relevant monetary amounts and adjustments – usually increases – in government fees and charges. These regular updates occur at the start of every financial year impacting many different areas of law, and therefore numerous By Lawyers publications.

These updates include court filing fees, lodgment fees for property dealings, land tax thresholds, minimum weekly compensation amounts for Workers Compensation, and penalty units for fines for various criminal offences and civil penalty provisions.

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

We also monitor and update for similar legislative indexing and increases which occur regularly at other times of the year. These include 1 January changes and other specific dates for various areas of law as prescribed by some statutes.

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

Quite separately, there is also usually a raft of new and amending legislation from both Commonwealth and state parliaments which is set to commence on 1 July. This year is no different in that regard. By Lawyers have made various substantive amendments to a number of publications to account for the commencement of such legislation. Please see the various other By Lawyers News & Updates posts dealing with those updates.

By Lawyers always keep our content – and our subscribers – up to date!

Offers to settle – QLD

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The Uniform Civil Procedure Rules 1999 (QLD) were amended from 23 June 2023 concerning the costs implications of rejected offers to settle made by both plaintiffs and defendants.

The Uniform Civil Procedure (Offers to Settle) Amendment Rule 2023 amends r 360 of the of the Uniform Civil Procedure Rules 1999 as to offers made by a plaintiff, and r 361 as to offers made by a defendant. It also introduces a new r 361A, which deals specifically with the implications of a plaintiff’s claim being dismissed after the plaintiff rejects a costs offer made by a defendant. There are also transitional provisions for offers already on foot before the amendments.

Offers to settle are relevant to the Court’s exercise of discretion concerning costs at the conclusion of any proceedings. The ordinary rule about costs is that they follow the event: r 681. Costs are awarded to the successful party, usually assessed on the standard basis, unless the rules or orders state otherwise: rr 702-704.

If an offer is made by one party and rejected by the other party, and the ultimate outcome of the case ends up being less favourable to the rejecting party than what was offered, the rules provide that the court can award indemnity costs against the rejecting party from the date of the offer. The amendments to the rules clarify when and how this applies.

The commentary on offers to settle has been amended, for both Acting for the plaintiff and Acting for the defendant, in all By Lawyers QLD Litigation guides:

 

Employment Law – FED

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The By Lawyers Employment Law guide has been updated for the latest legislative amendments.

From 1 July 2023 the maximum amount that can be ordered under the civil remedy provisions of the Fair Work Act in small claims proceedings increased from $20,000 to $100,000.

Failure to pay wages and entitlements can give rise to civil remedies for contravention of statutory obligations. Chapter 4 – Part 4.1 of the Fair Work Act 2009 deals with civil remedies.

An offending employer can be ordered to pay a pecuniary penalty on top of the wages and contractual or statutory entitlements unpaid or underpaid, plus interest up to judgment.

Division 3 of Part 4.1 provides that applications for most contraventions of civil remedy provisions under the Fair Work Act, although not pecuniary penalty orders, may be dealt with as small claims proceedings in a state magistrates court or the Federal Circuit and Family Court of Australia (Division 2), with awards limited to $100,000 or any higher amount prescribed by the regulations.

The section on Underpaid and unpaid wages and entitlements in the By Lawyers Employment Law commentary has been updated accordingly.

These amendments are under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 which makes numerous changes to the Fair Work Act 2009. These amendments commence in phases over the course of several years 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. These provisions commenced on 6 March 2023 – see our previous News & Updates post;
  • additional grounds for anti-discrimination in the workplace;
  • fixed-term contracts are generally no longer permitted;
  • expanded availability of flexible work arrangements.

See our previous News & Updates post for further details.

The By Lawyers Employment Law guide and 101 Employment Law Answers will be updated as these relevant provisions commence.

Trade Marks – FED

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The By Lawyers Trade Marks publication has been reviewed.

Helpful new headings on the matter plan include:

  • Pre-application searches; and
  • Use, assignment, licensing, and enforcement.

Commentary amendments include:

  • A simplified Overview section, focusing on the importance of registration;
  • Updated hyperlinks to legislation and useful online government resources;
  • New and enhanced coverage of the pre-application procedure available through IP Australia, including Headstart applications;
  • New and enhanced coverage of availability searches, including TM Tracker and international searching via the World Intellectual Property Organisation;
  • More detailed commentary on filing the application, considering examination reports, and dealing with opposition;
  • Enhanced commentary on amending or withdrawing an application, and cancelling a registration; and
  • Enhanced coverage of international applications for both Madrid Protocol and Non-Madrid Protocol countries.

New and enhanced precedents on the matter plan include:

  • To do list;
  • Letter to client with search results and advice;
  • Letter to client advising application lodged;
  • Letter to client advising application accepted for publication;
  • Letter to client advising notice of early acceptance;
  • Letter to client advising problems with application;
  • Final letter to client advising trade mark registered; and
  • Final letter to client advising trade mark not registered.

This review by our authors has focused on the application process. Further review of the commentary on enforcement of trade marks, and intellectual property rights generally, is ongoing.

Supreme Court – QLD

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From 1 May 2023 Practice Direction 9 of 2023 Caseflow Management – Civil Jurisdiction governs caseflow management in civil proceedings in the Supreme Court.

The new Practice Direction is to be read with Practice Direction 11 of 2023 Consent Orders of the Registrar.

Practice Direction 18 of 2018 Efficient Conduct of Civil Litigation also applies under the new practice direction.

These practice directions are all intended to facilitate compliance with the overriding obligations under r 5 of the Uniform Civil Procedure Rules 1999 that the parties and the court resolve the real issues in the proceedings in a procedurally fair, efficient, timely, and cost effective way.

The new practice direction is based on the Supreme Court having the expectation that cases will either be resolved or ready for trial within 180 days of the defence, or the last of multiple defences, being filed. If not, the Supreme Court registry will issue an Intervention Notice to which the plaintiff must respond within 28 days by filing one of the following documents:

  • Notice of Discontinuance; or
  • Notice that the matter has settled; or
  • Request for Trial Date.

If the matter is neither resolved nor ready for trial, the plaintiff must file proposed orders, either by consent or otherwise, and the matter will be listed in the Caseflow Management List where the registrar will make the proposed orders, or refer the matter to a caseflow management conference, or list it before a judge for review.

Failure to comply with the practice direction may result in sanctions including adverse costs orders and immediately listing the proceedings for trial.

When cases are settled, they are placed in the Caseflow Settlement List and remain there until a Notice of Discontinuance is filed, or the court makes an order disposing of the matter.

The commentaries in the By Lawyers Supreme Court Acting for the Plaintiff and Acting for the Defendant guides have been updated accordingly.

Employment Law – FED

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The By Lawyers Employment Law guide has been extensively reviewed, with enhanced content including:

  • A new section on employment disputes, covering employee conduct and performance, unfair dismissal claims, general protections claims, unlawful termination, underpayment of wages, and disputes about contracts and employment status.
  • Expanded coverage of employment relationships, especially casual work and the complicated interplay between the common law position and the casual conversion provisions under the Federal employment legislation.
  • A new section on Paid Parental Leave, following legislative amendments that make payments more accessible, flexible, and gender-neutral for Federal system employees – see our previous News & Updates post for further details.

This review has been conducted in the context of significant and ongoing legislative changes. 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 commence in phases over the course of several years 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. These provisions commenced on 6 March 2023 – see our previous News & Updates post;
  • Additional grounds for anti-discrimination in the workplace;
  • Fixed-term contracts are generally no longer permitted;
  • Expanded availability of flexible work arrangements;
  • A new small claims process for unpaid entitlement recovery.

The By Lawyers Employment Law guide and 101 Employment Law Answers will be updated as these relevant provisions commence.

Paid parental leave – FED

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Recent amendments to the Paid Parental Leave Act 2010 (Cth) make payments more accessible, flexible, and gender-neutral for Federal system employees.

Under the current scheme, either parent and other eligible carers can claim up to a total of 18 weeks of paid parental leave. This increases to 20 weeks from 1 July 2023. Payments can only be claimed in the first two years after the child’s birth or adoption. The scheme is funded by the Commonwealth, so a claim for payments is made to Centrelink, not the employer. The entitlement extends to employees who are full-time, part-time, casual, seasonal, contractors, or self-employed.

The amendments:

  • Enable families to decide which parent will claim first and how they will share the entitlement and are not limited to a small class of claimants. Allowing households to decide how best to care for a child.
  • Provide greater flexibility, with claimants allowed to take the available leave in multiple blocks of as little as a day at a time with no requirement to return to work to be eligible.
  • Impose a new $350,000 family income limit for eligibility, under which families can be assessed if an individual applicant does not meet the individual income test.
  • Expand the eligibility requirements to allow a father or partner to receive paid parental leave, regardless of whether the birth parent meets the income test or residency requirements, or is serving a newly arrived resident’s waiting period.

Payments are at the rate of the national minimum wage. Employers are not obliged to make superannuation contributions during the leave period. Paid parental leave does not count as paid leave for the purposes of the National Employment Standards (NES) and, therefore, does not count as service for the purposes of other entitlements.

The By Lawyers Employment Law publication has been updated accordingly.

Sale of business – QLD

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The new, fourth edition of the Real Estate Institute of Queensland sale of business contract was released on 9 February 2023.

The changes in the new edition incorporate electronic execution and businesses having a digital presence on social media.

The changes to the sale of business contract include:

  • Item J in the Schedule has a new section to insert the details of the business’s social media and electronic media accounts to be transferred at settlement;
  • A new optional special condition annexure requiring the seller to allow an adjustment to the buyer for any prepaid coupons or gift cards that have not expired at settlement. The buyer must accept any prepaid coupons or gift cards that were issued before completion, provided they have not expired.
  • A new optional due diligence special condition annexure, allowing the buyer to terminate the contract if not satisfied with due diligence investigations by a specified date. The seller is obliged to provide access to and copies of any information reasonably required by the buyer.
  • The restraint of trade clause has been bolstered to protect the goodwill the buyer is paying for. The new restraint clause expands what a seller is prohibited from doing during the restraint period and within the restraint area. The prohibited actions now include having an interest in or being concerned with a competing business, dealing with a customer of the business being sold, interfering or disrupting the relationship between the business and its customers or prospective customers, and soliciting any person who was an employee, contractor, or agent of the business.
  • Clause 18 has been amended to require the buyer to notify the seller of the employees it intends to employ five business days before settlement. The buyer must offer employment to those employees at least two business days before settlement. This leaves the seller responsible for employees who do not receive an offer of employment from the buyer, or do not accept its offer of employment within one business day before settlement.
  • A new sub-clause has been inserted through which the buyer indemnifies the seller against any claims under the lease until the date of the lessor’s consent, should they elect to settle before obtaining the lessor’s approval to an assignment of lease.
  • A buyer may terminate the contract if any disclosure required under the Retail Shop Leases Act has not been given.
  • Clause 32 is a new warranty that the buyer has conducted its own searches and satisfied itself of the type of business and the permissible use.
  • Clause 40 now contains an electronic counterparts clause, allowing the contract to be signed electronically under the Electronic Transactions (Queensland) Act.

The By Lawyers Purchase of Business and Franchise (QLD) and Sale of Business and Franchise (QLD) guides have been updated accordingly.

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