ByLawyers News and Updates

Priority Property Pool – FED

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From 30 October 2023, under a new Federal Circuit and Family Court of Australia practice direction, special procedures apply for property matters that qualify as Priority Property Pool (PPP) Cases.

Some registries of the FCFCOA have operated special arrangements under the PPP500 pilot since February 2020. The arrangements will now apply to proceedings in all registries.

Priority Property Pool Cases are those where the net value of the asset pool is, or appears to be, less than $550,000 excluding superannuation interests, or not significantly greater and the court considers it appropriate to include the matter as a PPP case.

Previously, under the pilot program, the cap was $500,000.

Priority property Pool cases can include matters involving applications for property settlement, spouse maintenance, or urgent spouse maintenance.

Cases will not qualify as a PPP Case if:

  1. they involve entities such as a family trust, company, or self-managed superannuation fund the value of which is contested and requires valuation or expert investigation,
  2. only parenting orders are sought,
  3. both parenting and financial orders are sought, or
  4. child support is the issue.

The new Family Law Practice Direction – Priority Property Pool Cases applies. It revokes and replaces the previous Family Law Practice Direction Priority Property Pools Under $500,000, and must be read in conjunction with:

PPP Cases proceed differently to standard cases. The Guide for practitioners in PPP Cases sets out the applicable procedure. Important differences from standard case procedures include:

  • At each court date the parties’ lawyers must inform the judicial registrar of the costs their client has incurred to date, their estimated costs to the conclusion of a final hearing, and the source of the funding for representation.
  • Adjournments are discouraged and will be granted only in exceptional circumstances.

The By Lawyers Family Law Property Settlement publication has been updated accordingly.

Investigation Notices – SA

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Investigation Notices have been introduced in South Australian courts as a new mechanism of enforcing debts.

From 18 September 2023, judgment creditors can serve Investigation Notices on judgment debtors prior to an Investigation Summons being issued.

Section 4 of the Enforcement of Judgments Act 1991 already allows the court to investigate a judgment debtor’s financial position with regard to their means of satisfying the debt.  This is usually the first step in enforcement proceedings. The court issues a summons which requires the judgment debtor to attend and produce documents at a hearing. The judgment creditor is entitled to cross-examine the judgment debtor on their evidence and documents. Failure to appear in response to a investigation summons can render a judgment debtor liable to be arrested.

The process of serving Investigation Notices under the new s 3A inserted into the Act by the Statutes Amendment (Civil Enforcement) Act 2023 is an informal preliminary step. It has the potential to save parties the time and cost involved in an adversarial hearing. The notice is issued by the judgment creditor and requires the judgment debtor to provide information including documents to evidence their ability to satisfy the judgment debt. This new preliminary step is not compulsory – the judgment creditor can elect to issue the notice, or proceed directly to an Investigation Summons and hearing. It is however expected that Investigation Notices will be widely utilised in an attempt to contain costs. Likewise, compliance by judgment debtors might be driven by the desire to avoid the costs of a hearing, which are added to the judgment debt under s 3 of the Act.

The amending Act also tweaks the existing provisions about garnishee orders to remove the requirement for the judgment debtor’s consent before wages or bank accounts can be garnisheed and to include term deposit accounts. Further amendments to 7 of the Act expand the powers of the Sheriff when enforcing judgments against land.

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!

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.

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.

Sexual harassment – FED

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From 6 March 2023 sexual harassment in connection with work is prohibited by the Fair Work Act 2009. Aggrieved persons have rights to apply to the Fair Work Commission and, with some limitations, the Federal Courts.

Part 3-5A of the Fair Work Act 2009 prohibits sexual harassment of workers, persons seeking to become workers, and persons conducting businesses or undertakings, and provides for the granting of remedies when that happens.

An employer may be vicariously liable for sexual harassment of their employee or agent unless the employer can show that they took all reasonable steps to prevent it.

An aggrieved person who alleges they have been sexually harassed in connection with work, or an industrial association entitled to represent the industrial interests of an aggrieved person, may apply to either:

  1. the Fair Work Commission under s 527J of the Act to either make a Stop Sexual Harassment Order (SSHO) , or to otherwise deal with the dispute, or both;
  2. a Federal Court for orders for contravention of civil remedy provisions, under Division 2 of Part 4-1.

However, a court application can only be made if the parties have first attempted to resolve the matter through the Fair Work Commission, and the Commission has issued a certificate to that effect, unless the application seeks an interim injunction.

These provisions of the Act are in addition to, and do not exclude or limit, any rights a person may have under any state or territory law in connection with sexual harassment.

If the application is not solely for a SSHO, the Commission must deal with the dispute according to its powers under s 595 (2), other than by arbitration – namely via mediation or conciliation, or making a recommendation or expressing an opinion.

Stop Sexual Harassment Order

Where an application seeks a SSHO, if the Commission is satisfied that the aggrieved person has been sexually harassed and there is a risk of the harassment continuing, the Commission may make any orders it considers appropriate to prevent the harassment, except for a pecuniary order: s 527J(i).

In considering the terms of its orders, the Commission must take into account the outcomes of any investigation into the matter, any other procedures available to the aggrieved person and the outcomes if any, and anything else the Commission considers relevant.

Time limits

Any application to the Fair Work Commission under Part 3-5A of the Fair Work Act 2009 may be dismissed if it is made more than 24 months after the alleged contravention, or after the last of a series of contraventions is alleged to have occurred: s 527G of the Act, or such longer time as the Commission allows upon application.

A sexual harassment court application must be brought within 60 days of the s 527R(3)(a) certificate being issued by the Fair Work Commission, or such longer time as the court may allow upon application.

These amendments are under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. The By Lawyers Employment Law guide has been updated accordingly.

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