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Casual employment – FED

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Recent amendments to the Fair Work Act

There is a new statutory definition of ‘casual employee’ from 27 March 2021. There is also an expanded statutory pathway for regular casual employees to convert their employment status to full time. Employers now have an obligation to offer permanent employment in certain circumstances.

Some relief has been granted to employers for underpayment claims from employees incorrectly classified as casual. This addresses instances of ‘double dipping’.

The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 has introduced significant amendments to the Fair Work Act 2009 including:

Statutory definition

Section 15A provides that a person is a casual employee if they have been offered and have accepted employment on the basis that the employer gave ‘no firm advance commitment to continuing and indefinite work according to an agreed pattern…’.

Conversion to permanent employment

Additionally, for casual employees who fall outside the modern award framework there is a statutory obligation for employers to offer conversion to full or part-time employment, unless there are reasonable business grounds not to do so. This does not apply to small business employers.

Casual Employment Information Statement

Employers must provide casual employees with a Casual Employment Information Statement, before, or as soon as practicable after, they start their employment. This is additional to the Fair Work Information Statement.

Off-setting casual loading to prevent ‘double-dipping’

Employers are provided with relief for underpayment claims from employees incorrectly classified as casual.

Regular casual employee

The previous definition of ‘long term casual’ is replaced with ‘regular casual employee’. The definition relates to the element of employment on a regular and systematic basis, but without any specific time requirement.

By Lawyers keeps you up to date

For further details see the By Lawyers Employment Law publication which has been updated accordingly.

Family law cases – FED

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A number of recent family law cases have been added to 101 Family Law Answers.

These new family law cases are located in the following sections of this helpful reference manual:

Costs orders

For a discussion of interim lump sum payments see Russo and Russo & Ors [2020] FCWA 182 at [61]-[66].

Settlement offers

In Paradin & Paradin [2020] FamCAFC 245 an order that the husband pay the wife’s costs was set aside. The husband had rejected the wife’s Calderbank offer because it was ambiguous and was not specific as to breakdown of payments. Strickland J stated at [57]:

… I am reminded … of what the Full Court said in Pennisi, namely, it is critical to consider the context in which an offer is made … And, as was said by the Full Court in Cross & Beaumont [2008] FamCAFC 68 … at [51] that context can be that ‘[i]f the recipient of the offer is demonstrably unable to comply with his or her obligations under the proposed settlement, it is difficult to see how the offer could be relied upon in support of an application for costs’.

Contributions – Conduct and family violence

Benson & Drury [2020] FamCAFC 303 saw the Full Court dismiss an appeal by the de facto husband against a 5% adjustment in the de facto wife’s favour. The adjustment had been made due to the impact of family violence upon her contributions, based on the arguments raised in Kennon. However, the Full Court stated that the primary judge was in error for not considering the Kennon argument in a holistic way. At [35] they stated:

…The contributions which have been made significantly more arduous have to be weighed along with all other contributions by each of the parties, whether financial or non-financial, direct or indirect to the acquisition, conservation and improvement of property and in the role of homemaker and parent. All contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder.

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

Invoice recitals – All states

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The precedent invoice recitals from the By Lawyers reference publication 101 Costs Answers have been added to various other matter plans. This makes an enormous amount of valuable, drafted By Lawyers content more readily available to all users.

The useful library of invoice recitals provides assistance to practitioners and support staff when preparing invoices in any matter. These recitals, which detail the work usually completed in a variety of matter types, are now available on each relevant matter plan. The appropriate recital appears directly below the invoice precedent.

Invoice recitals are provided for the following areas of law:

  • Conveyancing
  • Criminal
  • Employment
  • Enduring guardianship NSW
  • Estates
  • Family law
  • Injuries, works compensation, victims support
  • Insolvency
  • Leases
  • Mortgage
  • Power of attorney NSW
  • Retirement villages NSW
  • Sale and purchase of business
  • Security of payments NSW
  • Wills

101 Costs Answers is located in the Reference materials folder on every By Lawyers matter plan. It contains practical, detailed commentary on all aspects of legal costs and disbursements. It also contains fully compliant costs agreement precedents for all common areas of law.

Wills guide reviewed – SA

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The continuing commitment of By Lawyers to updating and enhancing our publications has seen the South Australian Wills guide reviewed.

Subscribers using this popular publication will find a re-ordered and extended matter plan, revised and updated commentary and a number of new precedents. Execution is now a top-level heading on the matter plan, with dedicated commentary on issues such as blind witnesses, gifts to witnesses and solicitors as witnesses. The revisions also include:

  • First steps and taking instructions for wills
  • Testamentary capacity and the test in Banks v Goodfellow
  • The formal requirements for a valid will
  • Informal wills
  • Intestacy
  • Executors
  • Execution
  • Challenges to the validity of a will

New and amended precedents

  • Initial letter to client enclosing costs agreement
  • Letter to client to confirming instructions
  • To do list
  • Instructions for signing
  • Letter reminding client that will is ready for signing

Other resources in the Wills guide reviewed

Links have been added to the By Lawyers reference materials Other trusted and useful resources. This resource can be found in the Reference materials folder on the matter plan.

1 January updates – All states

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The By Lawyers has attended to the following 1 January updates required by legislation and practice in all relevant jurisdictions:

Land tax – Increases to threshold values – NSW

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

The 2021 threshold combined land value has increased to $755,000 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 $4,616,000 then $60,164 is payable plus a marginal tax rate of 2% over that amount.

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

By Lawyers Contract for sale of land

The 2021 edition is now available on the Sale of real property matter plan in the Contract section.

Leases and subleases – NSW, VIC, QLD, SA and WA

The 2021 editions are now available on the Leases – Act for Lessor matter plan for each jurisdiction.

These additions form part of our continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Bankruptcy

In response to the COVID-19 pandemic temporary changes were made to bankruptcy law, increasing the debt threshold to $20,000 from $5,000 and increasing the time frame for a debtor to respond to a bankruptcy notice to 6 months from 21 days.

As of 1 January 2021 these changes have ceased and a new permanent bankruptcy threshold has been implemented.

The current debt requirement for bankruptcy is a minimum debt of $10,000 and the current time to respond to a bankruptcy notice is 21 days.

The By Lawyers Insolvency – Bankruptcy of individuals publication has been updated accordingly.

Always up to date

In addition to our annual 1 January updates, By Lawyers ensures our publications are updated for 1 June and any other statutory or regulated adjustments where necessary. We also promptly  update our content for all relevant legislative amendments and other legal developments throughout the year, in all jurisdictions.

The team at By Lawyers wishes everyone a prosperous and safe 2021.

Court books – All states

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Court books are an indexed collection of all documents that the parties rely upon in proceedings, collated for convenience of use during a hearing. They are commonly used in all litigation matters and are compulsory in some courts, especially in specialist lists and on appeal.

A court book ordinarily includes all pleadings and evidence. It generally omits any irrelevant documents, even if they were disclosed in the proceedings. For example, a voluminous bundle of documents may have been produced under a subpoena issued by one of the parties in the lead-up to the hearing, but the party only seeks to rely on a few documents out of the bundle. The court book will contain the subpoena itself plus those relevant documents only.

A properly compiled and indexed court book allows solicitors, counsel and the bench to have a common reference point and easily navigate to relevant documents and issues as the hearing proceeds.

Two new precedents for creating court books have been added to every By Lawyers litigation guide in Australia.

The precedents Court book cover page and Court book index are customised for each court in each jurisdiction. They comply with each court’s requirements and will assist practitioners in compiling court books in all types of litigation.

 

HomeBuilder – FED

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The Federal Government has announced an extension to the HomeBuilder scheme to 31 March 2021, however the grant amount has been reduced to $15,000. The $25,000 grant is still available, with amended eligibility criteria, for building contracts signed on or before 31 December 2020.

HomeBuilder $25,000 grant

For building contracts signed between 4 June 2020 and 31 December 2020, a $25,000 grant is available to certain individuals who build a new home or buy an off the plan home, or substantially renovate an existing home. The grant cannot be used to buy an existing house and is limited to Australian citizens earning less than $125,000 or couples earning less than $200,000.

The value of new builds is capped at $750,000. For renovations, the home must be worth less than $1.5 million before the renovation, and projects must cost between $150,000 and $750,000.

The building contract must be signed between 4 June 2020 and 31 December 2020, and work must commence within six months of the contract date.

Applications must be submitted by 14 April 2021.

HomeBuilder $15,000 grant

For building contracts signed between 1 January 2021 to 31 March 2021, a $15,000 grant is available to certain individuals who build a new home or buy an off the plan home, or substantially renovate an existing home. The grant cannot be used to buy an existing house and is limited to Australian citizens earning less than $125,000 or couples earning less than $200,000.

The value of new builds is capped at $950,000 for NSW, $850,000 for VIC and $750,000 for all other States and Territories. For renovations, the home must be worth less than $1.5 million before the renovation, and projects must cost between $150,000 and $750,000.

The building contract must be signed between 1 January 2021 and 31 March 2021, and work must commence within six months of the contract date.

Applications must be submitted by 14 April 2021.

State-based grants

On top of the HomeBuilder scheme, some states are offering related payments in addition to the Federal grant. See the relevant By Lawyers Conveyancing – Purchase Guide for further information and relevant application forms or links where applications are made online.

All By Lawyers Conveyancing – Purchase Retainer instructions precedents now also include these grant details.

The Lighthouse Project – FED

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The Lighthouse Project is a new family-violence and risk screening initiative that will run in both the Family Court and the Federal Circuit Court for parenting matters. The legislative framework is provided by the recent Family Law Amendment (Risk Screening Protections) Act 2020.

The project will be initially available in the Adelaide, Brisbane and Parramatta registries of the courts. It is scheduled to commence before the end of 2020.

The Lighthouse Project includes:

  • early risk screening through a secure online platform;
  • early identification and management of safety concerns; and
  • assessment and triage of cases by a specialised team, who will provide resources and safe and suitable case management.

All cases identified as high-risk following the screening process will be referred to a dedicated list in the court. The specialist list will be known as the Evatt List. This will be a judge-managed list which will focus on early information gathering and intervention through a judge-led, dedicated support team in appropriate cases.

Both courts have a dedicated page on their websites with information about the Lighthouse Project.

The By Lawyers Family Law Children publication has been updated accordingly. Information on The Lighthouse Project has been included under Pre-Action procedures in the full commentary and on the matter plan. Practitioners are also reminded of the related information on family violence and cross-examination of parties, in the Going to court folders.

101 Costs Answers – ALL STATES

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101 Costs Answers is the latest addition to the By Lawyers ‘101’ series of helpful reference materials.

Located in the Reference materials folder on every By Lawyers matter plan, this publication contains valuable commentary and precedents on all aspects of legal costs.

The precedents include all of the By Lawyers costs agreements/client services agreements and costs disclosures, drawn together from all By Lawyers publications into a convenient single publication.

The By Lawyers costs agreements are compliant with the strict requirements of the various state laws. They cater for all areas of law, with detailed recitals of the scope of work usually undertaken in each type of matter. This not only defines the retainer but makes it easy for practitioners to produce documents quickly upon engagement.

The 101 Costs Answers commentary includes:

Disclosure requirements

The commentary helps practitioners to navigate some of the more complicated disclosure requirements including regulated costs and the specific obligations for different types of litigation matters. The effect of non-disclosure is also covered.

Disbursements

Commentary on defining and recovering disbursements includes relevant case law and examples. The By Lawyers costs agreements are drafted to clearly identify usual disbursements.

Counsel’s fees

The commentary deals with the contractual relationship between solicitors and barristers as well as disclosure requirements. With the solicitor responsible for payment of counsel’s fees regardless of the solicitor’s agreement with the client, the By Lawyers costs agreements include counsel’s fees as specific disbursements which the client is obliged to pay.

Debt recovery

Where debt recovery is necessary, 101 Costs Answers contains letters of demand and example pleadings to assist with the recovery of costs. There is also detailed commentary on costs assessment procedures and the relevant forms for each state are available on the matter plan.

Like all By Lawyers publications, 101 Costs Answers contains interactive links to relevant legislation and cases, which are always kept updated.

Family provision claims SA

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New precedents have been added to the By Lawyers Family Provision Claims SA publication.

Following an author review of the guides, there is new content on the matter plans for both Acting for the Respondent and Acting for the Applicant.

The new content to assist practitioners acting for clients in relation to claims on a deceased estate under the Inheritance (Family Provision) Act 1972, includes:

Acting for the Respondent – new family provision precedents

  • Letter to beneficiary affected by settlement of claim
  • Letter to client after first directions hearing
  • Letter to client enclosing affidavits for signing
  • Letter to client enclosing draft affidavits
  • Letter to witness enclosing affidavit for signing

Acting for the Applicant – new family provision precedents

  • Authority to settle and receive
  • Direction to pay and authority to receive
  • Letter to client enclosing settlement deed
  • Letter to client after filing claim
  • Letter to client enclosing draft affidavit
  • Letter to client enclosing affidavit for signing
  • Letter to client after first directions hearing
  • Letter to witness enclosing affidavit for signing
  • Letter to client finalising the matter – Payment
  • Letter to client finalising the matter – No payment

The review of the Family Provision Claims SA publication and the addition of these new family provision precedents is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

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