ByLawyers News and Updates

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.

Recent property cases – VIC

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Recent property cases have been added to the By Lawyers reference manual 1001 Conveyancing Answers (VIC).

This publication has been extensively reviewed and updated by our esteemed author Russell Cocks.

Helpful recent property cases added to the publication in this review include:

1001 Conveyancing Answers (VIC) is available in all By Lawyers Victorian property law guides – Sale of real property, Purchase of real property, Leases, and Mortgages.

This comprehensive publication assists property practitioners to understand deeper issues in conveyancing and solve problems for clients when they arise.

Family and domestic violence leave – FED

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Family and domestic violence leave entitlements change for many employees from 1 February 2023, with paid leave replacing the previous entitlement to unpaid leave.

Full-time, part-time, and casual employees of non-small business employers, being those with 15 or more employees on 1 February 2023, 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 same entitlement will apply to employees of small business employers, being those with less than 15 employees on 1 February 2023, from 1 August 2023. Until then, employees of small businesses remain eligible for the existing entitlement of 5 days of unpaid family and domestic violence leave.

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 they 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 commentary has been updated accordingly. Further updates will be applied when the entitlement extends to all employees in August.

1 January updates – All states

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1 January updates are always a big focus for By Lawyers. While the profession takes a well-earned break By Lawyers remains hard at work ensuring our publications are updated for legislative and regulatory changes that take effect from the new year.

This year’s 1 January updates for relevant jurisdictions include:

Land tax

In New South Wales and Victoria, land tax is calculated for the calendar year. Threshold values increase annually.

In New South Wales, the 2022 threshold combined land value has increased to $969,000 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 from 1 January. If the aggregate taxable value exceeds the premium rate threshold of $5,925,000 then $79,396 is payable, plus a marginal tax rate of 2% over that amount.

In Victoria, the tax-free threshold for general land tax remains at $300,000. The trust surcharge threshold remains at $25,000.

All relevant commentary and precedents in the By Lawyers Conveyancing and Property and Trusts guides for each relevant state will be updated for these new threshold amounts from 1 January.

By Lawyers Contract of sale of land

The 2023 edition of the By Lawyers contract will be available 1 January in the Sale of real property publications for Victoria and New South Wales. The contract is located in the Contract folder on the matter plan.

Leases and subleases

In New South Wales, Victoria, Queensland, South Australia and Western Australia the 2023 editions of our lease and sub-lease precedents are available from 1 January. These are found in the Leases – Act for Lessor section of each Leases publication.

Keeping up to date

In addition to our 1 January updates, By Lawyers updates our publications for 1 June and other regulated adjustments when necessary.

Of course, we also update our content for relevant legislative amendments and other legal developments throughout the year, in all jurisdictions, as required.

Keeping up to date is one of the ways By Lawyers help our subscribers enjoy practice – and holidays – more!

The team at By Lawyers wishes everyone a prosperous and safe 2023.

Family law rules – FED

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Changes to the family law rules from 28 November include the abolition of the need to file a parenting or financial questionnaire with an initiating application. Parties now only file a questionnaire if they have not filed an affidavit with their application or response.

Other amendments to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 include:

  • Rule 1.09: Changing the form for seeking rescission of a divorce order from an Application for Review to an Application in a Proceeding;
  • Rule 2.01: Requiring that an application must concisely state the orders sought;
  • Part 2.6: Making the rules on service of documents in Australia apply to service generally;
  • Part 5.6: Inserting new rules 5.28 and 5.29 requiring that the Annexure to Proposed Consent Parenting Orders be attached to an application for interim parenting orders proposed to be made in chambers, as was already required for final orders;
  • Rule 5.28 and rule 10.04: Allowing draft consent orders to be signed by a party’s legal representative;
  • Rule 6.06 and rule 8.09: Removing the requirement to file parenting or financial questionnaires with an initiating application if the party has filed an affidavit;
  • Rule 7.35: Providing for the court to accept the opinion of a court-appointed assessor unless there are exceptional circumstances; and
  • Rule 14.07: Allowing the court to consider an Application for Review in chambers if the parties consent, and requiring parties to seek leave for any further evidence to be filed in support of an Application for Review.

Amendments to the costs schedule in the rules commence on 1 January 2023.

Amendments have also been made to the delegations table in Schedule 4 to the Rules, with effect from 28 November 2022.

The amended delegations increase the powers of Senior Judicial Registrars and Judicial Registrars in dealing with aspects of case management, including allowing the registrars to:

  • deal with an application for an interlocutory consent order under the new part 5.6 of the Rules;
  • apply on a limited basis the court’s power under s 69ZR of the Family Law Act 1975 to make a finding of fact, determine a matter, or make an order in relation to an issue arising, at any time before final orders are made in child-related proceedings;
  • order a party to undergo drug or alcohol screening or testing;
  • make spousal or de facto maintenance orders on a limited basis;
  • make an order for child maintenance – Senior Judicial Registrars only;
  • make an injunction under s 114 against a third party – Senior Judicial Registrars only;
  • make orders in relation to costs, costs estimates, and assessment of costs under s 117;
  • grant leave to institute proceedings out of time – Senior Judicial Registrars only;
  • grant leave for joinder of a party to a proceeding after the first court date;
  • issue a subpoena, order the production and inspection of documents, and hear subpoena objections;
  • summarily dismiss an application that has no reasonable prospects of success;
  • make summary orders in response to a claim by a party that an application or response is frivolous, vexatious, or an abuse of process, or that an application has no reasonable likelihood of success;
  • make certain case management orders or directions under r 10.11;
  • make orders varying or setting aside orders under the slip rule if the original orders were made by a Senior Judicial Registrar or Judicial Registrar;
  • make declarations regarding the costs of a child, and amend administrative assessments that are more than 18 months old under the Child Support (Assessment) Act 1989; and
  • grant a stay under s 111C of the Child Support (Registration and Collection) Act 1988.

Lighthouse project expands – FED

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From 28 November the Federal Circuit and Family Court of Australia’s Lighthouse Project expands to include all major registries. This follows additional funding provided in the recent federal budget.

The Lighthouse Project is a family-violence and risk-screening initiative for parenting and parenting/financial matters. The legislative framework was provided by the Family Law Amendment (Risk Screening Protections) Act 2020.

The project was initially available in the Adelaide, Brisbane, and Parramatta registries. It now expands to include Cairns, Canberra, Dandenong, Darwin, Hobart, Launceston, Melbourne, Newcastle, Rockhampton, Sydney, Townsville, and Wollongong registries.

The Lighthouse Project’s key points are:

  • 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 are referred to a dedicated list in the court, known as the Evatt List. This is a judge-managed list that focuses on early information gathering and intervention through a dedicated support team in appropriate cases.

When commencing or responding to proceedings in the applicable registries, parties will be asked to provide an email and mobile number to enable risk screening. Parties will then receive an email with a secure link and login details to complete the risk screening process.

See the FCFCOA’s Lighthouse expansion – General fact sheet for more information.

The By Lawyers Family Law Children guide has information on The Lighthouse Project under Pre-action procedures in the commentary.

Practitioners are also reminded of the related information on family violence and cross-examination of parties in the Going to court folders, and the separate By Lawyers guides covering apprehended violence, intervention, and restraining orders for family and personal violence under various state laws.

Central Practice Direction – FED

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The Central Practice Direction: Family Law Case Management outlines the core principles applicable to family law proceedings and establishes a consistent national case management system in the Federal Circuit and Family Court of Australia.

The practice direction requires that before filing an Initiating Application or a Response to an Initiating Application, lawyers give their clients a copy of the practice direction. There is a brochure on the matter plans in the By Lawyers family law publications, being a convenient PDF version of the practice direction, for this purpose.

A new precedent letter to the client has been added to the matter plans, enclosing the brochure and summarising its key points. This assists the practitioner to both comply with their obligations and explain the importance of the practice direction to their clients.

The Central Practice Direction incorporates the overarching purpose, enshrined in the Federal Circuit and Family Court of Australia Act 2021 under which the court was created, to facilitate the just resolution of disputes as quickly, inexpensively, and efficiently as possible.

The ten core principles by which the overarching purpose is to be achieved are in summary:

  1. assessment of risk to vulnerable parties;
  2. rapid and inexpensive agreements;
  3. efficient use of the court’s resources;
  4. effective case management;
  5. active dispute resolution;
  6. adverse consequences for non-compliance;
  7. costs obligations;
  8. full disclosure between parties of all relevant information and focus on the real issues;
  9. hearing preparation; and
  10. resolution or determination of all cases promptly.

Following the principles, the Central Practice Direction makes it clear that the court expects parties and their lawyers to always:

  • minimise costs;
  • promptly give full and frank disclosure of information;
  • communicate productively; and
  • identify and seek to resolve the issues genuinely in dispute.

The Practice Direction prohibits aggressive and unnecessarily adversarial conduct. The safety of parties and children is a priority. Parties are not required to put themselves or their children at risk or compromise if they feel unsafe or believe abuse or violence affects their ability to negotiate fair or reasonable outcomes. The interests of children are always the court’s paramount concern.

Magistrates’ Court appearances – VIC

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All Magistrates’ Court appearances and counter services from 12 September 2022 will be subject to the arrangements set out in Practice Direction No 6 of 2022.

The practice direction applies to both criminal and civil matters, including intervention orders and specialist courts and programs.

COVID recovery arrangements made permanent

Essentially the temporary COVID recovery arrangements previously in place under Practice Direction No. 3 of 2022 have been made permanent, with that practice direction revoked.

In general, remote appearances by clients and practitioners are available, encouraged, and in some cases required. However, physical appearances are also possible, mainly by request, and in some cases they are required.

The new practice direction sets out detailed arrangements for all types of Magistrates’ Court appearances, including:

Criminal matters

  • accused on bail or summons;
  • bail applications and other hearings with the accused in custody;
  • criminal mentions and applications;
  • specialist courts and programs;

Intervention Orders

  • applications;
  • hearings;

Civil matters

  • applications, directions hearings, pre-hearing conferences, early neutral evaluations and judicial resolution conferences are all to be conducted online, unless otherwise directed by the Court;
  • final hearings may be online or in person at the court’s direction.

For online appearances it is the practitioner’s responsibility to ensure that they and their client are able to join the online hearing with audio visual capability.

Magistrates’ Court publication updates

The following By Lawyers Victorian publications have been updated accordingly:

  • Magistrates’ Court – Criminal
  • Magistrates’ Court – Traffic offences
  • Intervention orders
  • Magistrates’ Court Civil – Acting for the plaintiff
  • Magistrates’ Court Civil – Acting for the Defendant
  • Dealing with COVID-19 legal issues

County Court – VIC

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The County Court Commercial Division Omnibus Practice Note PNCO 2-2022 came into operation on 1 August 2022.

The new Commercial List Practice Note is largely a consolidation of all the previous practice notes for the division into a single omnibus practice note.

The main changes are in relation to the introduction of electronic processes for discovery, affidavits, and subpoenas.

The Court has also issued a Notice to practitioners regarding the Commercial Division Standard Orders Booklet 2022, also released on 1 August and to be read in conjunction with the new practice note. This collection of the court’s required content and format for consent orders is to be consulted by parties drafting consent orders to be submitted to the Court.

The By Lawyers VIC Litigation guides County Court – Acting for the plaintiff and County Court – Acting for the defendant have been updated accordingly, with references and links to the new omnibus practice note and standard orders booklet in the commentary. There are no new forms or precedents required.

Additional updates have also been made to the commentaries for new Common Law practice notes that have been released recently.  The Court’s Common Law division has not consolidated its practice notes into a single omnibus practice note at this stage.

Transport Accident Claims – VIC

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Amendments that extend entitlements to compensation under the transport accident claims legislation have commenced.

Part 3 of the Road Safety Legislation Amendment Act 2022  commenced on 6 July 2022. It amends the Transport Accident Act 1986 to extend benefits for claimants and their supporting families. The definition of a dependent child is amended to include a child who is under the age of 18 years, rather than 16 years. The definition of an immediate family member is amended to include a grandchild, alongside a partner, parent, grandparent, child, and sibling.

The extension of the definitions means that family counseling is available for the grandchildren of grandparents severely injured or killed in a transport accident. Claims can also be made for travel or accommodation expenses for grandchildren visiting their injured grandparent in hospital after a transport accident or attending the funeral of their, grandparent killed in a transport accident and to provide a replacement carer if the grandparent was the primary carer for the grandchild.

New provisions have been added to the Transport Accident Act that deal with the pre-accident weekly earnings for various types of earners who were, immediately before a transport accident, already receiving a weekly payment in respect of total or partial loss of earnings suffered as a result of, or materially contributed to by, an injury resulting from a previous transport accident.

The amending Act also clarifies the Transport Accident Commission’s capacity to disclose information to other statutory agencies and expands its ability to prosecute fraud offences committed with respect to transport accident claims.

The full commentary in the By Lawyers Transport Accident Claims (VIC) publication has been updated accordingly.

Unrelated provisions of the amending Act which affect the Road Safety Act 1986 have not yet commenced. These will be the subject of further update and publication amendments in due course.

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