ByLawyers News and Updates

Retail leases – NSW

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Certain COVID-19 related arrangements for retail leases have been made permanent.

The COVID-19 and Other Legislation Amendment (Regulatory Reforms) Act 2022 No 5 preserves temporary protections for certain lessees impacted by COVID-19. This is achieved by inserting a savings provision, s 88(1A), into the Retail Leases Act 1994. This has the effect of retaining the relevant provisions of the Retail and Other Commercial Leases (COVID-19) Regulation 2022 even though it is to be otherwise automatically repealed on 14 July 2022.

The COVID-19 protections in question include:

  • Landlords cannot act against an impacted lessee failing to pay rent, failing to pay outgoings, or not being open for business during the hours required under the lease;
  • Rents cannot be increased, except for parts of rents that are calculated based on turnover;
  • Any breaches of a lease which are caused by the tenants’ compliance with Commonwealth or State COVID-19 laws are excused;
  • An obligation on both parties to retail leases to renegotiate in good faith the rent payable under the lease, based on the economic impacts of COVID-19.

The protections reflect those of the National Code of Conduct’s leasing principles. Impacted lessees are generally those who have received government assistance during COVID-19.

The amending Act also creates a new s 89, generally empowering creation of savings or transitional regulations on leases in response to COVID-19.

The commentary in the By Lawyers Leases guide and the relevant section of the 1001 Conveyancing Answers (NSW) publication has been amended to reflect these arrangements, including links to these new sections.

COVID 19 legal issues

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Dealing with COVID 19 legal issues has been a major challenge for legal practitioners. A great deal of emergency legislation has now been passed in response to the pandemic, both temporary and permanent. While we are beginning to see some of the temporary arrangements introduced by courts, land registries and other authorities ease, there are still many measures in place that continue to affect daily practice.

The By Lawyers publication Dealing with COVID-19 legal issues brings together in one place a collection of up-to-date practical information which is a valuable resource for lawyers. It is available by clicking on the link at the top of the matter plan in every By Lawyers Guide.

The Dealing with COVID-19 legal issues publication continues to be updated and enhanced as the response to the pandemic develops. For instance, the Family Law section of the publication has been recently updated to include information on the updated COVID-19 Hearing Protocol from the Federal Circuit and Family Court of Australia (FCFCOA) to reflect easing restrictions in the ACT, NSW, and VIC.

All By Lawyers publications are updated to reflect permanent changes. By Lawyers will keep practitioners informed of ongoing changes and provide our trademark practical assistance to guide the profession in these difficult times.

COVID signing provisions – QLD

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From 1 July 2021, some of the COVID signing provisions applicable in Queensland during the pandemic will cease.

The Justice Legislation (COVID-19 Emergency Response– Documents and Oaths) Amendment Regulation (No.2) 2021 means that from 1 July any ‘enduring’ documents – wills, enduring powers of attorney, and advance health directives – to be signed by a signatory or substitute signatory need to be made, signed and witnessed under the ordinary law.

One remaining exception is the modified COVID signing provisions that enable nursing practitioners, in addition to doctors, to complete a certificate in an advance health directive stating that the signatory appeared to have the necessary capacity to make it.

This regulation also does not affect the modified arrangements under the Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020 in relation to the making, signing and witnessing of affidavits, statutory declarations, oaths, deeds, particular mortgages and general powers of attorney under the documents regulation. These measures are currently scheduled to expire on 30 September 2021.

The By Lawyers dedicated Dealing with COVID-19 legal issues commentary will be updated. This guide, accessed via a link at the top of every By Lawyers matter plan, provides practitioners with helpful information about all relevant COVID signing provisions and other important temporary COVID measures.

See the By Lawyers Wills, Powers of Attorney & Advance Health Directives and Mortgages publications for more information. See also the folder of Blank deeds, agreements, statutory declarations and execution clauses in folder A. Getting the matter underway folder on the matter plan in every By Lawyers publication.

COVID-19 employment measures – FED

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The Commonwealth Government has introduced two new COVID-19 employment measures.

JobMaker Hiring Credit

This scheme enables payments to assist workplace participation by people aged 16 to 35 years.

The first year of this program runs from 7 October 2020 until 6 October 2021. It is intended that the program will be extended.

Eligible employers can claim $200 per week for each additional employee hired during this period aged 16 to 29 years. For employees aged 30 to 35 years employers can only claim $100.

Employees can be hired on a permanent, casual or fixed-term basis.

The payments are made as credits claimed quarterly in arrears from the Australian Taxation Office.

Paid parental leave work test period amendment

The work test period in the Paid Parental Leave Act has been temporarily amended. This applies to births and adoptions that occur between 22 March 2020 and 31 March 2021.

It allows access to parental leave pay and ‘dad and partner’ pay by those who do not otherwise meet the criteria of the work test due to the pandemic.

The work test requirements have not changed. An individual must have worked:

  • at least 10 months in their work test period; and
  • at least 330 hours in that 10-month period with no more than a 12-week gap between any two consecutive working days.

The work test period is usually 13 months prior to the birth or adoption of the child. The temporary change means that it is 20 months for parents who have had their employment impacted by COVID-19.

Information on these and previous COVID-19 employment measures see the commentary available at the top of every By Lawyers matter plan: Dealing with COVID-19 legal issues – Some practical information.

Insolvency – FED

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The temporary changes to insolvency laws under schedule 12 of the Coronavirus Economic Response Package Omnibus Act 2020 have been extended to end on 31 December 2020.

The temporary measure were originally set to end on 25 September 2020.

A recap of the changes are as follows:

Bankruptcy

The time for a debtor to comply with a bankruptcy was extended from 21 days to six months. The threshold for initiating bankruptcy proceedings increased from $5,000 to $20,000.

The same six month time extension applies to the time within which a debtor is protected from enforcement action by a creditor, following their presentation of a declaration of intention to present a debtor’s petition, under s 54A Bankruptcy Act.

Liquidation

The time for a debtor company to comply with a statutory demand was extended from 21 days to six months. The threshold to issue a statutory demand increased from $2,000 to $20,000.

Safe harbour

The temporary s 588GAAA ‘Safe harbour—temporary relief in response to the coronavirus’, of the Corporations Act 2001 provides that the existing civil penalties for directors failing to prevent insolvent trading under ss 588G(2) do not apply in relation to a debt incurred by a company if the debt is incurred in the ordinary course of the company’s business and until 31 December 2020.

The By Lawyers Dealing with COVID-19 legal issues commentary has been updated to reflect the revised end date of 31 December 2020 for the Commonwealth government’s insolvency measures.

JobKeeper extension – FED

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The Federal Government has announced another Jobkeeper extension. The payment scheme will continue until 28 March 2021.

Options for flexibility for managing workforce costs, such as reducing working hours continue. Employers are no longer allowed to require employees to take annual leave.

The amendments change the eligibility requirements for employers. Two broad categories of employers have been created: those who qualify for the new scheme after 28 September 2020, referred to as ‘qualifying employers’ and those who previously received at least one payment but no longer qualify, referred to as ‘legacy’ employers.

Qualifying employers

The minimum requirements under this JobKeeper extension remain the same regarding notification and consultation. The By Lawyers example content letters remain available from within the commentary and have been updated where necessary.

Any JobKeeper enabling directions or agreements existing on 27 September 2020 remain valid if the employer continues to qualify for the scheme.

Legacy employers

Legacy employers must have received one or more JobKeeper payments in the period prior to 28 September 2020, but have ceased to qualify. They now need to show a 10% decline in current GST turnover for the previous quarter. They must obtain a ‘10% decline in turnover certificate’ from a financial service provider.

Small business employers may choose to make a statutory declaration instead.

Legacy employers have been given access to modified directions and agreements and have extra notice and consultation requirements. Any existing on 27 September 2020 will need to be reissued or new arrangements made. They may not request an employee to work less than 2 hours per day or less than 60% of their ordinary hours as at 1 March 2020.

The By Lawyers example content letters provide for legacy employers.

The Fair Work Commission has the power to deal with disputes relating to legacy employers and satisfaction of the 10% decline in turnover test.

More information on Jobkeeper extension

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 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.

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.

Electronic Transactions – NSW

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Schedule 1 to the Electronic Transactions Regulation 2017 (NSW) came into operation on 22 April 2020 . It allows for witnessing of documents by audio visual link in New South Wales.

This is a practical step by NSW parliament. It allows wills, powers of attorney, deeds and agreements, enduring guardianship appointments, affidavits and statutory declarations to be witnessed through audio visual means. Formats such as Zoom, Skype or Microsoft Teams, which integrates with LEAP, can be used.

Practitioners can send a document to a client by email, if the client has printing facilities, or by post. A meeting can then be arranged via any audio visual format to witness the client signing the document.

Under the regulation the practitioner witness must:

  • Observe the client sign the document in real time – this may involve ensuring that the practitioner can view the document on screen as the signature is made;
  • Sign the document or a copy of the document themselves;
  • Be reasonably satisfied that the document that they sign is the same document, or a copy of the document, signed by the client; and
  • Endorse the document, or copy, with a statement specifying the method used to witness the signature and that the document was witnessed in accordance with the regulation.

The following wording is suggested for the endorsement:

This document was signed in counterpart and witnessed over audio visual link in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017.

The regulation allows a witness to sign a counterpart of the document, or have the client scan and email the signed document back to the practitioner, who may then print and witness the copy. Of course, the client may also post the original back to the practitioner, who may then sign the original document on receipt.

The regulation also allows for swearing or affirming the contents of an affidavit by audio visual link.

This is a temporary, COVID-19 related measure. Schedule 1 expires 6 months from the date of commencement, being 22 October 2020.

Variation of lease – All states

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Two new precedent deeds for variation of lease have been added to all By Lawyers Leases publications.

The new precedents are:

  • Deed of variation of lease – Deferral of rental payments. This deed provides for the deferral of rental payments for an agreed period. It also provides for the lessor to access the security deposit/bond/guarantee, to satisfy part-payment of rent during this period. It is suitable for general use when required.
  • Deed of variation of lease – Deferral of rental payments during COVID 19. This deed complies with the National Cabinet Code of Conduct that was released on 7 April 2020 to govern commercial, industrial and retail tenancies affected by the COVID-19 pandemic.

Both of these new precedents deeds cover arrangements for future payments. Once the deferral period has ended, they provide for the repayment of deferred rent in full.

By Lawyers have produced a publication which brings together in one place a collection of practical information to help the profession at this time. Dealing with COVID-19 legal issues is a valuable resource for lawyers. It is now available by clicking on the link at the top of the matter plan in every By Lawyers Guide.

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