On Monday, 22 March 2021, the Federal Parliament passed the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2021. This legislation significantly amended the Fair Work Act 2009 (Cth) (Amended FW Act) for employers of casual employees. The Amended FW Act received royal assent on 26 March 2021 and came into effect on 27 March 2021.

Non-Small Business Employers[1] have until 26 September 2021 to review their casual employment arrangements by determining who should be (and should not be) offered conversion to permanent employment. This creates an opportunity for these employers to set themselves up for success in managing their casual workforce.

All employers need to start providing the new Casual Employment Information Statement to its new casual employees. This document can be downloaded from the Fair Work Ombudsman’s website now. 

1. What are the changes to casual conversion under the Amended FW Act?

The Amended FW Act casual conversion provisions are aimed at “longer-serving regular casuals”[2], i.e. casual employees with 12 months of service and who, during at least six of the last 12 months, have worked regular shifts, which, without significant adjustment, can continue as full-time or part-time employment arrangements.

The two new paths to permanent employment for longer-serving regular casuals are as follows:

  • Non-Small Business Employers must proactively inform these longer-serving regular casuals at the end of their first year of employment whether they will be converted to permanent employment or not.  It does not require the casual employee to ask for permanent employment.

    This is a one-off exercise in that an employer is not required to proactively revisit this later during the employment. (Important: see our response to question 2 below for an explanation of the transitional arrangements that require all Non-Small Business Employers to complete a review of their current casual arrangements by 26 September 2021.)
  • For all employers (including Small Business Employers), longer-serving regular casuals (with at least 12 months of service) have the right to request conversion to permanent employment if they have not:
    • rejected an offer of permanent employment in the last six months; or
    • been rejected by their employer for permanent conversion in the last six months. 

The Amended FW Act’s “right to request” provisions look very similar to the casual conversion provisions in Modern Awards. Modern Awards will be updated between now and 26 September 2021 (i.e. the first six months of the Amended FW Act coming into effect – see our response to question 5 below).

When an employer offers permanent employment to a casual employee, it needs to be either on a full-time or part-time basis depending on the casual employee’s regular work hours.  

2. What does the Amended FW Act require in relation to considering current casual employees for conversion (or rejecting them for conversion)?

For Small Business Employers, longer-serving regular casuals (with at least 12 months of service) can now request conversion to permanent employment. 

For Non-Small Business Employers, there is a transition period ending on 26 September 2021 during which they must review all their current casual employees (i.e. those employed as casuals before 27 March 2021, when the Amended FW Act came into effect)[3] for conversion to permanent employment.  As part of this review, the employer must proactively inform these casual employees whether they will be converted to permanent employment or not, and give reasons if they refuse to offer permanent employment.  The employer is not legally required to offer permanent employment to anyone who is not a longer-serving regular casual.  The employer may refuse to offer permanent employment to a casual on “reasonable grounds” (see our response to question 3 below).

While Non-Small Business Employers are working through this review process, their current longer-serving regular casuals (i.e. those employed as casuals before 27 March 2021, when the Amended FW Act came into effect) will not have the statutory right to request conversion to permanent employment until 26 September 2021 (when the transition period ends). 

In these coming five months or so, Non-Small Business Employers have an invaluable opportunity to review how they use casual employees in their organisation, set expectations and right-size their casual workforce.

3. What rights does an employer have to refuse to convert a longer-serving regular casual to permanent employment?

Under the Amended FW Act, an employer can only decline to offer conversion on reasonable grounds.  The employer must document that refusal in a statement provided to the employee explaining the reasons for the refusal.

The concept of “reasonable grounds” is not exhaustively defined in the Amended FW Act, but any refusal by an employer must be based on facts that are known or reasonably foreseeable at the time that the employer decides not to make the offer to convert the casual to permanent employment. 

The Fair Work Commission is authorised to handle disputes in relation to casual conversion. 

4. What if the casual employee refuses to convert?

As mentioned above, if a casual employee refuses an offer to convert to permanent employment, they are not permitted to make a request for conversion for six months after that refusal.

Some commentators expect that casual employees will refuse to convert because they do not want to take a reduction in pay by losing the casual loading.  We anticipate that the rate at which casuals will accept offers to convert to permanent employment is likely to vary by industry.

5. What about the Modern Award casual conversion provisions?

As noted above, Modern Awards and many Enterprise Agreements also give certain casuals the right to request conversion to permanent employment.  The new conversion provisions in the Amended FW Act will operate alongside current casual conversion provisions in Modern Awards and Enterprise Agreements.  

Technically, casual conversion provisions in Modern Awards and Enterprise Agreements may provide another path to convert from casual to permanent employment, but the significance of those Modern Award and Enterprise Agreement provisions will diminish with time.  This is because the Amended FW Act requires the Fair Work Commission to review the Modern Award terms relating to casuals during the six-month transition period (ending on 26 September 2021).  We can expect that this process will align the casual conversion provisions in Modern Awards with the Amended FW Act, and, in due course, equivalent provisions in Enterprise Agreements will follow suit.

6. What are other changes in the Amended FW Act?

Statutory definition of “Casual Employee” – A safe harbour

The new statutory definition of “casual employee” gives employers a safe harbour if they have clear offers of employment stating that employment is on a casual basis, and evidence that those offers were accepted by employees.

No double dipping

A casual employee claiming to have been a permanent employee who was misclassified as casual (like the claimant in WorkPac v Rossato) will have their claim reduced by the amount of identifiable casual loading paid to them during the employment period related to their claim. 

Clarifying how the National Employments Standards operate after conversion to permanent employment

The National Employment Standards have been clarified to deal with minimum entitlements of employees who converted from casual to permanent employment.  For example, service as a casual is not taken into account when determining minimum entitlements to notice of termination or redundancy payments.

Casual Employment Information Statement

The new Casual Employment Information Statement is now available on the Fair Work Ombudsman’s website linked here.

From 27 March 2021 onwards, all employers must provide a “Casual Employment Information Statement” before or as soon as practicable after a new casual employee starts employment.  This requirement will apply in addition to the current obligation on employers to issue “Fair Work Information Statements” to their employees. 

Small Business Employers need to provide the new Casual Employment Information Statement to all their casual employees as soon as practicable after 27 March 2021. 

Non-Small Business Employers must provide the new information statement to casual employees who were hired before 27 March 2021, as soon as practicable after 27 September 2021 (i.e. after the six-month transition period has ended – see our response to question 2 above for more details about the significance of this six-month transition period from 27 March to 26 September 2021 for Non-Small Business Employers). 

Next steps

In light of these changes, we recommend that:

  • Non-Small Business Employers use the period from now until 26 September 2021 effectively by identifying the longer-serving regular casuals and planning for the roll-out of the conversion communication to all casual employees.
  • All employers consider the business factors that will impact their ability to convert (or not convert) longer-serving regular casuals to permanent employment.
  • Employers consider developing processes to ensure that only top performing casuals can become eligible for conversion to permanent employment.
  • Employers amend casual employment contracts to ensure that their contracts are aligned with the new definition of “casual employee” under the amended FW Act.
  • Employers be ready to distribute the Casual Employment Information Statement to their existing casual workforce and to new casual employees.

How we can help

For more information on what this might mean for your organisation or how to apply these new provisions practically, please don’t hesitate to contact us.

[1] “Small Business Employer” is defined in section 23 of the FW Act.  A Small Business Employer is an employer with less than 15 employees.  Casual employees who are not employed on a regular basis are excluded from the count of 15 employees, whilst employees of associated entities are included within the count.
[2] “Longer-serving regular casuals” is a shorthand we use in this article and is not a defined term in the Amended FW Act.
[3] The Amended Fair Work Act refers to casual employees who were employed by Non-Small Business Employers immediately before the amendments came into effect on 27 March 2021 as “transitioning casual employees”. 

Australia is in the middle of a huge (r)evolution in our society’s responses to sexual harm, and schools are in the middle of it.

Both society’s expectations and regulatory standards have never been higher. Schools must act or risk falling behind/harm occurring on their watch.

Join our practice leaders Skye Rose, Cecelia Irvine-So and Rebecca Lambert-Smith, as they host this powerful, double-feature session on:

  • What school boards must do to future proof their school and discharge their privacy and child safety legal obligations;
  • Best practice prevention of, and response to, sexual harm; and
  • What schools must do to ensure they comply with the new child information sharing scheme, starting 19 April 2021.

The session will distil complex regulation into practical steps schools can, and must, take.

Ensure your school is a leader on this most important issue – don’t miss this session!

8am – 8.45am | School Boards’ Role in Preventing Sexual Harm
8.45am – 9am | Short interval / break
9am – 9.45am | The New Child Information Sharing Scheme

Join us for one or both sessions, once registered, we will provide one link and you can opt in or out at any time.

Family law proceedings can often stretch over a number of years whilst parties progress through the Family Court system. Where one party is unwell, a commonly asked question is what happens if my partner passes away before we reach a resolution? Can I control what my spouse includes in their will?

In the recent Family Court of Australia Decision in Baskin & Baskin [1], the Husband passed away during the proceedings. The following facts are important to the decision reached:

  1. The parties were married in 1982 and had two adult children. At the time of the proceedings, one child had passed away and the surviving child was 31 years old.
  2. The asset pool available for division was approximately $3,000,000 including superannuation.
  3. The Wife filed proceedings in May 2019 for a property settlement. An altercation occurred in June 2019 between the Husband and Wife with an Intervention Order being made on the Wife’s behalf by Victoria Police listing her as a protected person. The Husband was prevented from coming within 200 metres of the former matrimonial home.
  4. The Husband filed a response to the Wife’s Application for a property settlement on 25 June 2019. The Husband and Wife both attended a case assessment conference on 3 July 2019, where following the scheduled Court event, the Wife agreed for the Husband to attend the property to collect his personal belongings.
  5. The Husband attended the family home whilst the Wife and the parties’ son were not in attendance. The son, upon returning to the property, found the Husband dead in the garage having committed suicide. The Husband left a suicide note stating “now you have all my money and my life”.

Following the Husband’s suicide, the Wife was granted Letters of Administration of the Husband’s Estate on 19 November 2019. Letters of Administration is an Order granted by the Supreme Court which gives a person the legal right to deal with the estate of a deceased person who died without leaving a valid will.  The Wife, as the Husband’s spouse and subject to any claim for further provision was entitled to the whole of the Husband’s Estate [2].

Following the grant, the Wife then sought to be substituted as legal personal representative of the Husband’s Estate meaning effectively, in the Family Law proceedings, she would be both the Applicant and the Respondent.  The Wife therefore sought that her Application for a property settlement be dismissed and she retain the property pool in its entirety.

Did the Wife receive the entirety of the property pool?

Justice Macmillan delivered a judgement on 25 May 2020 that the Wife in her capacity as administrator of the Estate of the Husband be substituted as a party for the Husband.  After doing so, Justice Macmillan made a further order that the proceedings be dismissed.

Her Honour’s decision was predicated on the following basis:

  1. Where a party to the marriage dies during proceedings but prior to property proceedings being completed, the proceedings may be continued by the legal personal representative of the deceased party.  The Wife, in this case, was the only person who could be substituted for the Husband in the proceedings.
  2. The Wife filed an Affidavit deposing that she was unaware of anyone who would be able to make a claim against the Husband’s estate pursuant to Party IV of the Administration and Probate Act for further provision. The parties’ son gave oral evidence in Court to confirm he did not intend on making a claim.  The Court did not consider there were any other eligible persons who would have an entitlement to further provision.
  3. It was agreed that an Order dismissing the proceedings should not be made until after the expiration of the requisite period of 6 months from the date which the Letters of Administration were granted and the date where an application could be made against the Husband’s Estate for further provision. This was to ensure that any potential future claimants had the opportunity to come forward.

What can we take from Baskin & Baskin?

Whilst the circumstances in Baskin & Baskin are tragic for all involved, it highlights the importance of making a Will, even if your property proceedings have not yet been finalised.

The trajectory of this case could have been very different if the Husband had a valid Will and had appointed a third party as an executor, or provided for his Estate on his death to pass to the parties’ son, rather than the Wife.

How we can help

If you are contemplating separation from your spouse, or have separated but not yet made a Will, our expert team can assist you with your Family Law or Estate Planning queries. For more information and guidance, please do not hesitate to contact us.

[1] Baskin & Baskin [2020] FamCA 401 (25 May 2020)
[2] Section 70K Administration and Probate Act 1958 (Vic)

Two recent cases passing through the Victorian Civil and Administrative Tribunal in 2020 have highlighted the importance of forward planning if a person is considering voluntary assisted dying (“VAD”). The requirement for Australian citizenship or permanent residence, together with being “ordinarily resident in Victoria” can be an unexpected obstacle for prospective applicants to the scheme.

Who can access the VAD scheme?

The Voluntary Assisted Dying Act 2017 (‘the Act”) sets out several eligibility criteria for a person seeking to access the scheme, being:

  1. Age – the person must be over 18;
  2. Residence – the person must be ordinarily resident in Victoria, and at the time of the first request, have been ordinarily resident in Victoria for at least 12 months;
  3. Citizenship – the person must be an Australian citizen or permanent resident;
  4. Capacity – the person must have decision making capacity in relation to voluntary assisted dying;
  5. Diagnosis – the person must have a diagnosis of a disease, illness or medical condition which is:
    • Incurable
    • Advanced, progressive and will cause death
    • Is expected to cause death within weeks or months, not exceeding 6 months (or 12 months for neurodegenerative conditions)
    • Is causing suffering to the person that cannot be relieved in a manner that the person considers tolerable

Provided a person meets the eligibility criteria, there are a number of further steps which must be taken in order for that person to be granted a permit for VAD, and ultimately prescribed the medication for themselves or their doctor to administer.

Understandably, commentary regarding the implementation of the Act has focused on striking the right balance between providing sufficient safeguards from abuse of the scheme and permitting access to the scheme for those who would seek it.

However, it is as a result of the citizenship and residency criteria that many applications have been denied, two of which resulted in legal proceedings.

Recent cases

The first case, NJT v NJT (Human Rights) [2020] VCAT 547, related to a “grey nomad” who, whilst “based’ in Victoria, had no fixed address. His initial application for access to VAD was put before VCAT due to the doubt surrounding whether he was “ordinarily resident in Victoria”.

The patient (“BTR”) lived in a caravan and regularly travelled to Queensland to escape the Victorian weather. He had no rental history since 2006 and did not own property (in Victoria or otherwise). He had physicians in Melbourne but also visited physicians in Queensland. There was no allegation that he would be ineligible for VAD on any grounds other than the residency requirement.

The evidence required to be submitted by BTR before VCAT ultimately determined that he was eligible for VAD was substantial. He provided his drivers license, passport, medical records, a statutory declaration, a timeline of his living arrangements and information as to his decision to return to Victoria for medical care. Even though BTR was ultimately granted a permit to access VAD, the process took over a month of his last few months of life and was undoubtably frustrating and traumatic.

The second case, YSB v YSV (Human Rights) [2020] VCAT 1396 dealt with the citizenship criteria. The patient in question (“UQL”) had migrated from England some 15 years earlier and had not left Australia in more than 10 years. He had owned a house in Victoria for 9 years. UQL was originally born in the UK and moved to New Zealand before settling in Australia. He did not hold Australian citizenship and his visa classed him as a temporary resident, although the period of stay was “indefinite”.

VCAT was asked to determine whether the initial decision that UQL did not meet the citizenship requirement could be challenged. Unfortunately, VCAT found that it did not have the jurisdiction to hear the question; the Tribunal did not have the jurisdiction to determine whether UQL was a permanent resident, nor could it waive the requirement. The Tribunal acknowledged the “disappointment and despair” that the decision caused, as the result left UQL with no practical avenue to access VAD despite meeting the medical criteria.

How we can help

Both of the situations in which the two patients found themselves in were born of administrative setbacks, rather than medical setback; this is reflected in commentary released by the VAD Board that the residence and citizenship requirements often catch prospective applicants unawares.

These setbacks can potentially be avoided by raising any queries in relation to potential future eligibility for VAD with an Estate Planning lawyer, particularly when considering medical directives and Powers of Attorney. Addressing the need for citizenship or residence as part of the Estate Planning process can provide substantial peace of mind and avoid a traumatic legal process in the final stages of a terminal illness. For more information and expert advice, please do not hesitate to contact us.

Practices seeking to change or suppress a person’s sexual orientation or gender identity (conversion practices) have been banned in Victoria following the passing of the Change or Suppression (Conversion) Practices Prohibition Bill. The bill has been passed, but will not become law until February 2022.

Among other things, the new law:

  • introduces a general prohibition on change or suppression practices;
  • makes it an offence for a person or organisation to:
    • intentionally engage in a change or suppression practice (or practices) if that practice (one event or cumulatively) negligently causes injury and the person or organisation is negligent as to whether the practice will cause injury;
    • take someone from Victoria or arrange for them to be taken from Victoria for the purposes of a change or suppression practice (or practices), if that practice (one event or cumulatively) causes injury and the person or organisation is negligent as to whether the practice will cause injury;
    • advertise a change or suppression practice; and
  • empowers the Victorian Equal Opportunity and Human Rights Commission to:
    • receive and respond to reports about change or suppression practices from any member of the community;
    • conduct investigations into change or suppression practices; and
    • direct a person or organisation to take, or refrain from taking, certain actions, to comply with the Act; and
  •  requires the Victorian Equal Opportunity and Human Rights Commission to establish information and education programs in relation to change or suppression practices.

Penalties apply under the new law – up to ten years’ jail or $10,000 for individuals or up to $50,000 for organisations.

What is a change or suppression practice?

A change or suppression practice is a practice or conduct:

  • directed towards a person;
  • on the basis of the person’s sexual orientation or gender identity; and
  • for the purposes of changing or suppressing or inducing the individual to change or suppress that identity.

Change or suppression practices are prohibited regardless of whether the person has requested or given consent to the practice or conduct.

A change or suppression practice includes but is not limited to:

  • psychiatry or psychotherapy treatment (or similar);
  • religious practices, including prayer-based practices, deliverance practices or exorcisms;and
  • giving a person a referral for the purposes of a change or suppression practice being directed towards the person.

The Explanatory Memorandum released with the bill notes that the new law is “intended to capture a broad range of conduct, including, informal practices, such as conversations with a community leader that encourage change or suppression of sexual orientation or gender identity, and more formal practices, such as behaviour change programs and residential camps.”

What is allowed?

A practice is not a change or suppression practice if it is supportive of or affirms a person’s gender identity or sexual orientation. The bill expressly confirms that the following are not change or suppression practices:

  • assisting a personundergoing or considering undergoing a gender transition;
  • assisting a person to express their gender identity;
  • providing acceptance, support or understanding of a person; or
  • facilitating a person’s coping skills, social support or identity exploration and development;

The bill also protects a practice that is (in the health service provider’s reasonable professional judgement), necessary to provide a health service or comply with the health service provider’s legal or professional obligations. This will not be a change or suppression practice under the new law.

When can an organisation be held responsible?

Organisations may be held liable under the new law for the actions of employees and agents (including volunteers within the organisation) acting with their actual or apparent authority as well as officers (including directors or committee members). An organisation may be deemed to have intended for a practice to take place if the corporate culture within the organisation directed, encouraged, tolerated or led to the formation of the intention to carry out that practice.

It may be a defence if an organisation can demonstrate that it exercised due diligence or took reasonable precautions to prevent conversion or suppression practices by an individual.

What about sermons or general discussions about religious beliefs?

The bill was accompanied by a Statement of Compatibility (a requirement to confirm that a proposed law is compatible with the Victorian Charter of Human Rights). That Statement says:

Although broad, the definition has been carefully designed to exclude conduct that is not directed at an individual, to reduce its impact on religious practices such as sermons. It also requires conduct be engaged in for the purpose of changing or suppression a person’s sexual orientation or gender identity (or inducing a person to change or suppress) to limit impact on general discussions of religious beliefs around sexual orientation or gender identity that aim to explain these beliefs and not change or suppress a person’s sexual orientation or gender identity. (emphasis added)

The legislation has been crafted to reduce or limit the impact on sermons and general discussions of religious beliefs. However, it remains possible that a sermon or discussion about religious belief could contravene the new law if it is found to be directed at an individual and to have a purpose of changing or suppressing the person’s sexual orientation or gender identity. 

What happens next?

The law will not come into effect for a further twelve months to allow for the Victorian Equal Opportunity and Human Rights Commission to prepare for implementation. During this period, the Commission will develop guidance on how it considers the law should be interpreted and applied.

Should you do anything in the meantime?

This is uncharted territory in Victoria.  For organisations and institutions whose activities include personal counselling, instruction or teaching regarding sexual orientation or gender identity or the teaching or expression of religious belief, the new law will require careful consideration.

As the VEOHRC develops guidance and communicates its plans on how it intends to exercise its new powers, appropriate preventative (or remedial) measures for organisations will become apparent.  In the meantime, here are some that are immediately clear:

  • Organisations should ensure that relevant officers, staff and volunteers are aware of the restraints in the new law.
  • Churches, religious organisations and faith-based institutions should consider whether they need to review current practices within their organisations.
  • In order to avoid corporate liability, organisations should:
    • clearly confirm what counselling or personal instruction relevant staff or volunteers are authorised to provide; and
    • prepare to adopt a policy on change or suppression practices and implement training for staff and volunteers – this is likely to be informed by the VEOHRC guidance.

How we can help

For more information or advice on how the reforms may affect you or your organisation, please do not hesitate to contact us.

Victoria will further relax its COVIDSafe settings following reduced exposure risk as Victoria continues to have low community transmission.

From 6pm on Friday 26 March 2021, places of worship must ensure that attendance records are maintained electronically through the Services Vic app or a government API-linked digital system. There will be a 28 day grace period for compliance.

To establish a check-in system for your place of worship through Services Vic, click here.

If your worship services are conducted indoors, you will continue to be subject to a density quotient of 1 per 2sqm.

If your place of worship is ordinarily used as a wedding or funeral venue, there will no longer be maximum attendee caps indoors or outdoors. However, records must be maintained in the manner set out above.

As always, Moores is here to help – for more information regarding the new rules, please do not hesitate to contact us.

The latest sexual assault allegations to consume Australia’s parliament have led many employers to consider how they would respond to serious or criminal allegations against their workers, particularly those in senior leadership.

When an employer becomes aware of criminal allegations against a worker such as theft, fraud, stalking, sexual assault, illegal drug use, child safety related offences (e.g. grooming) or driving offences, it should carefully consider its response in line with its values, commitment to maintaining a safe working environment, culture, and reporting and employment obligations.

The Child Safety and Workplace Relations teams at Moores act as trusted advisors to employers in times of crisis. In this article, we set out our top tips for responding to serious or criminal allegations.

Ensure the safety and wellbeing of the alleged victim / informant

Once the employer is aware of a serious allegation, the first priority should always be the health and safety of those concerned, particularly the alleged victim or informant.

An employer may need to separate colleagues or clients to minimise the risk of physical or mental harm. That may involve reassigning employees, changing their reporting lines or temporarily standing them down from work. Preliminary legal advice should be obtained to ensure that staff are treated fairly and appropriately, in line with organisational policies and relevant legal obligations.

Organisations will often appoint the Head of HR or a senior business leader to be the primary contact for the alleged victim and/or informant. This person typically plays a “welfare officer” role.

A “welfare officer” needs to take an empathetic approach and have the necessary organisational authority to ensure the health and wellbeing of the people closest to the incident. For example, the welfare officer would need to be able to discretely speak with relevant managers to arrange time-off, alternative duties or new reporting lines for people closest to the incident. The welfare officer would also need to be competent to advise people of their rights and obligations in relation to non-victimisation.

The welfare officer may need to discuss with internal stakeholders whether the respondent (i.e. the person against whom the allegations are made) should be removed from the workplace immediately, or stood down from duties pending an investigation. These discussions are often challenging. Whilst the presumption of innocence is important, an employer also needs to balance that against the health and safety risks based on the information it has available.

Coordinate your response

Subject to the size of the organisation, it may be appropriate for the employer to appoint a Committee responsible for coordinating its response to the concerns. This Committee typically makes strategic decisions, receives legal advice and liaises with external authorities. It is usually comprised of two to three people (including a welfare officer); anything more than five can become unwieldy.

The Committee should obtain early legal advice to deal with issues such as preserving evidence and the scope of the investigation. It should also be responsible for safeguarding privilege over legal advice. To preserve legal professional privilege in an organisation, its confidentiality must be maintained. Circulating legal advice outside of a core “need to know” group may inadvertently waive legal professional privilege attached to that advice, which could result in the organisation being compelled to disclose privileged materials to regulators or litigants.

Collect and preserve evidence

Employers should prioritise the collection and preservation of evidence. Where there is the prospect of criminal proceedings, the means by which evidence is gathered may be of crucial importance.

A careful and lawful process needs to be undertaken to ensure the integrity of all evidence obtained. This will generally involve:

  • suspending a respondent’s access to emails or IT systems, and potentially their physical access to the premises (so as to prevent the destruction of records or documents);
  • taking custody of original documents and portable electronic devices (such as a work issued GPS, laptop, iPad, or mobile phone);
  • taking photographs and/or videos as necessary; and
  • keeping careful records of witness evidence.

Where electronic evidence is involved, a forensic technology expert may be required to create a verifiable backup or mirror image of the computer system.

Employers should carefully consider their rights and responsibilities under employment contracts, policies and industrial instruments before taking steps to suspend access or recover property.

Consider whether regulators should be notified

Regulators and funders usually appreciate prompt notifications about concerns.

Depending on the incident and the employer’s sector, a serious incident may trigger reporting obligations. These obligations can be triggered even if the organisation does not have all the relevant facts, and the organisation is still investigating the allegations.

Some occupations, such as those in the medical and education sectors, have specific reporting requirements, particularly for issues such as suspected child abuse.

By way of example, some of the key mandatory reporting requirements in Victoria are summarised below.

Who does the obligation apply to?What to notify and who to notify?When to notify?Possible implications of failing to notify
All workplaces covered by the Occupational Health and Safety Act 2004 (Vic) (OHS Act)Notify WorkSafe Victoria of any incident that has occurred at the workplace (under the management and control of the employer or self-employed person).Immediately after becoming aware that the incident has occurred.Being found guilty of an offence under the OHS Act and liable to a fine of up to 240 penalty units (approximately $40,000) for natural persons or 1,200 penalty units (approximately $200,000) for body corporates
Certain professionals in Victoria, such as principals, medical practitioners, and nurses[1]Notify Child Protection (part of Department of Health and Human Services in Victoria) if they believe on reasonable grounds that a child has suffered or is likely to suffer significant harm as a result of physical injury or sexual abuse.[2]As soon as practicable after forming that belief.The penalty for failing to make a mandatory report is 10 penalty units (approximately $1,650).
All persons in Victoria of or over the age of 18 yearsNotify Victoria Police if one reasonably believes that a sexual offence has been committed in Victoria against a child under the age of 16 years by another person of or over the age of 18 years, e.g. discovering child pornography.As soon as it is practicable to provide that information.Up to three years’ imprisonment.
Victorian NDIS providerNotify the NDIS Quality and Safeguards Commission and/or the Victorian Disability Worker Commission if there is an allegation or reasonable belief that a disabled person has been abused (including sexual abuse). A Victorian NDIS Provider must review the reportable incident  provisions under the NDIS legislation,[3] and the notifiable conduct rules under the Victorian legislation.[4] They apply concurrently, and though they are similar, they are not the same.As soon as practicable after forming the reasonable belief or the allegation is raised.Notifying the Victorian Disability Worker Commission in good faith provides protection from civil and administrative liability. Failure to notify the Commission will not afford you this protection.   Failure to notify the NDIS can put the provider’s registration as a NDIS provider at risk.
All agencies and organisations covered by the Privacy Act 1988 (Cth)Once the threshold for an “eligible data breach” is established, notify the Office of the Australian Information Commissioner and each individual to whom the information relates.  An eligible data breach will occur when there are reasonable grounds to believe that personal information has been accessed or disclosed without authorisation, or has been lost AND the breach is likely to result in serious harm  to the individual whose privacy was breached/whose data was lost.Noting that you have 30 days to investigate, should your investigation result in a finding that the breach is “eligible”, as soon as practicable after the entity becomes aware of the eligible data breach.If the Commissioner is aware that there are reasonable grounds to believe that there has been an eligible data breach, the agency or organisation may be directed to make the report to the Commissioner. The Commissioner also have powers to investigate, invite parties to participate in a conciliation and make orders including civil penalties.

In New South Wales, adults who know or believe that a serious indictable offence has been committed by another person are required to notify the NSW Police Force or other appropriate authority of any information which might be of material assistance to them in securing the apprehension of the offender or the prosecution or conviction of the offender for that offence.[5]

We may see more mandatory reporting laws coming into place. The Victorian Government is considering reforms that would require employers to notify WorkSafe of incidents of sexual harassment.

Employers may be concerned about the risk of defaming individuals by reporting a concern to a regulator. However, the common law principle of qualified privilege protects people from defamation action when they make mandatory disclosures to a statutory authority in good faith.

Hasten slowly with the investigation

An employer may be required to undertake an investigation before any employment action is taken. For example, a School or an accredited NDIS provider is required to promptly investigate notifiable incidents. If the Police or other regulators are investigating, then the employer will need to consult with those authorities prior to commencing its investigation, so that the employer does not interfere with those regulatory investigations.

Rarely, if ever, should serious or criminal concerns (including concerns of sexual harassment) be investigated internally. Independence and objectivity will help to ensure that there is trust and confidence in an organisation’s response to the concerns.

When it comes to investigations there is no one-size fits all solution. The appropriate course of action will depend on various factors, including the employer’s sector, its size, its risk profile and the seriousness of the allegations.

How Moores can help

Moores has extensive experience in managing and advising on complex regulatory investigations, including in relation to child abuse, fraud, sexual harassment and criminal conduct. If you need a trusted advisor to support you through this process, please do not hesitate to contact us.

Note: This article contains general information only.  It is not legal advice and should not be relied upon as such. You should always obtain legal advice based on your needs and circumstances before taking action on the matters referred to in this article. 

[1] See the Department of Health and Human Services’ mandatory reporting webpage for a full list of mandatory reporters.
[2] In Victoria, reporting to DHHS is due to be transferred to the Department of Families, Fairness and Housing, which will be the new government body for child safety matters.
[3] Reportable incidents include the death, serious injury, abuse and sexual misconduct of a person with a disability. See National Disability Insurance Scheme Act 2013 (Cth) s 73Z.
[4] Notifiable conduct includes practising while intoxicated by alcohol or drugs, engaging in sexual misconduct and placing, or being at risk of placing, the public at risk of harm. See Disability Service Safeguards Act 2018 (Vic).
[5] Crimes Act 1900 (NSW) s 316.

Effective 1 July 2021, employers will be required to increase the minimum superannuation contribution to employees from 9.5 percent of “Ordinary Time Earnings” (OTE) to 10 percent.[1]  Depending on whether an employee’s salary is expressed as inclusive or exclusive of superannuation, it may result in decrease in an employee’s take home pay, or increased costs for the employer. Consequently, employers should carefully consider the entitlements owed to workers and whether adjustments must be made.

It is important to get superannuation right because there is no statute of limitations on superannuation.  Furthermore, if an employer underpays superannuation, it is not a simple matter of making an additional payment to the employee’s super account.  The employer is required to pay the money to the ATO together with an administration penalty (75 percent of the liability)[2] and a penalty under Part 7 of the Superannuation Guarantee (Administration) Act 1992 (Cth), which is up to 200 percent of the underpaid superannuation.  Similar to other areas of regulation, self-reporting may reduce the penalty imposed.

The laws governing superannuation can be quite technical. This article sets out some key considerations for employers reviewing their organisation’s superannuation arrangements.

Is remuneration inclusive or exclusive of superannuation?

Superannuation is often framed as an add-on to wages.  This is why we say “the pay for this job is $60,000 plus 9.5 percent super”.  Every time we use the phrase “plus super”, we are saying that remuneration is exclusive of superannuation. 

The benefit of structuring pay as exclusive of superannuation is that it makes it easy to compare the pay rates against Award and Enterprise Agreement rates, because wage rates in Modern Awards and Enterprise Agreements are exclusive of superannuation.

Executives and professionals (including lawyers in law firms) typically have their wages expressed inclusive of superannuation: (e.g. “The salary is $60,000 inclusive of super” or “$54,794 plus 9.5 percent superannuation”).  For this group of employees, their take-home pay will reduce on 1 July 2021.

It is not safe to assume that your organisation’s overall wage costs will consistently increase on 1 July 2021 when minimum superannuation contribution rate increases, especially if your organisation’s offer letters and employment contracts have evolved over time.  Now is a good time to review your employment documents to assess whether employees have their remuneration expressed as inclusive or exclusive of superannuation.

More super than the legal minimum

Some employees receive more than the legal minimum superannuation contribution, either because they salary sacrifice superannuation or their employment contracts say that they are entitled to more superannuation than the legal minimum (which will be 10 percent on 1 July 2021).

The 0.5 percent increase in the minimum superannuation contribution does not automatically mean that all superannuation contributions in your organisation must increase by 0.5 percent. 

It is a good time to revisit your salary sacrifice and employment documentation to consider what the impact is, if any, of the increase in superannuation contributions.

Super for Contractors

The superannuation legislation deems certain contractors (non-employee workers) to be employees eligible to receive superannuation contributions.  The ATO interprets these deeming provisions to mean that your organisation (as the “Principal” in that contractor relationship) needs to make superannuation contributions if the contractor meets all of these criteria:

  • the contractor is engaged directly, not through a company, trust or partnership, for whom more than half of the value of that contract is for the contractor’s labour;
  • the contractor is paid for their personal labour and skills, not by reference to achieving a result (e.g. contractor is paid an hourly rate); and
  • the contractor performs the work personally.

Typically, contractor agreements may push the responsibility for making superannuation contributions to the contractor-worker.  However, this does not exonerate the Principal from the statutory obligation to make superannuation contributions.

Now is a good time to consider whether your organisation has any potential liability for superannuation for any of its contractors, and whether any underpayments or other past practices need to be rectified.

Common items for super

Superannuation is paid on “Ordinary Time Earnings”.  This is a list of common payment types which the ATO has referred to in its key superannuation ruling SGR 2009/2:

Payment typeSuper payable?
Overtime payNo superannuation is payable for this, because by definition, it is overtime. Some employers regularly roster employees to work overtime (i.e. rostered overtime).  The starting point is that this is not “Ordinary Time Earnings” for which an employer needs to pay superannuation, even if it is customarily (or ordinarily) how the employees’ work is scheduled.   
Leave paymentsAnnual leave, long service leave personal leave payments (i.e. excluding any leave loading) are “Ordinary Time Earnings”.  The Superannuation Guarantee (Administration) Regulations 2018 (Cth) exclude certain types of leave payments from superannuation contributions, such as paid parental leave and top-up payments for employees undertaking jury service or voluntary emergency management activities (e.g. CFA volunteering) and defence force service.  
Annual leave loadingAnnual leave loading is subject to superannuation unless the employer can demonstrate that the annual leave loading is paid to compensate the employee for the loss of opportunity to work overtime.    In our experience, very few employers explicitly state this in their policies, offer letters or employment contracts. For more on this, please see a previous Moores update here.  
AllowancesAllowances that are paid as reimbursements (e.g. a car allowance that is paid by the kilometre) is not subject to superannuation. Superannuation is payable on a tool allowance or first aid allowance.

The Court says that is is meant to be simple?

From time to time, it can be difficult to determine whether a particular payment is subject to superannuation. When that happens, it can be helpful to consider the intent of the legislation. Helpfully, the Full Court in Bluescope Steel v AWU said that superannuation legislation aims to provide a simple and efficient way of securing a minimum level of superannuation for workers based on “self-assessment by employers and administration by employers and the Australian Tax Office”.[3]

The upshot is, we need to apply a different lens to superannuation to how we normally look at employment entitlements. Superannuation legislation is not beneficial legislation (beneficial legislation like the Long Service Leave Act is interpreted so that the benefit of the doubt goes automatically in favour of the employee). Superannuation legislation needs to be interpreted with this question in mind: what makes sense given that the system is meant to be simple and easy to administer?

When difficult questions arise in relation to superannuation, it might even be appropriate to approach the ATO for an administratively binding advice. 

With the increase to the minimum superannuation contribution, it is worth looking at whether your superannuation arrangements comply with prevailing standards. It pays to be proactive in this space, particularly as there is no statute of limitations.   

Next steps

In light of these changes, we recommend that employers consider:

  • Reviewing worker entitlements to determine if wages are inclusive or exclusive of super;
  • If workers are currently paid 9.5 percent super, employers will need to increase this to 10 percent;
  • Having discussions with employees – particularly if the changes are likely to impact their take home pay;
  • Whether there are any historical superannuation practices that need to be rectified;
  • Whether it should ask employees to sign new contracts with more modern terms (particularly if employers wish to absorb the increase without a reduction in the take home pay of workers).

How we can help

For more information on what this might mean for your organisation or how to apply it practically, please do not hesitate to contact us.

Note: This article contains general information only. It is not legal advice and should not be relied upon as such. You should always obtain legal advice based on your needs and circumstances before taking action on the matters referred to in this article. 

[1] From time to time, we hear news that the Coalition Government is considering delaying this superannuation contribution increase.  At this time, the Coalition Government has not put forward any legislation to change the scheduled increase.
[2] Pursuant to Section 284-75(3) of Schedule 1 of the Taxation Administration Act 1953.  This penalty is known as a TAA default assessment administrative penalty.
[3] Bluescope Steel (AIS) Pty Ltd v Australian Workers’ Union [2019] FCAFC 84 (24 May 2019), [43] Alsop CJ

2020 saw significant developments in the law around casual employment. In 2021, it is very likely that Workpac v Rossato will be considered by the High Court; we will also see heated debate on proposed reforms to address uncertainty around casuals in the wake of the Workpac decision.

Should employers wait and see how the saga develops, or tackle it proactively?

Join our workplace relations experts in this free webinar recording on the changing landscape of casual employment, including:

  • When is casual employment fit for purpose?
  • The issue before our High Court – the third and final instalment of Workpac v Rossato
  • Tips and strategies for dealing with retrospective entitlement claims
  • Casual employment in a post IR-Omnibus Bill world – what it means for you

Exemptions from land tax and council rates are available for properties in Victoria that are used for charitable purposes, even if the property is owned by a third party and occupied by the charity under a commercial lease. Despite the availability of these exemptions, some charities are still paying land tax and/or council rates.

Moores has been able to assist in preparing and submitting applications and ensuring that exemptions are provided where properties are used for charitable purposes. Charitable funds don’t come easy and we know that every little bit counts. Land tax and/or council rates can add up and exemptions are a welcome relief, providing extra funds for charities to get on with making a positive difference in the world.

If your charity owns or leases property in Victoria, it’s definitely worth checking whether or not it is unnecessarily paying land tax and/or council rates. Below is some further information regarding eligibility for exemptions.

Land tax

Land tax exemptions are provided for charities under the Land Tax Act 2005.  Exemption is not automatic – it is granted only in response to an application.  In order for a property to qualify for a land tax exemption, the State Revenue Office must be satisfied that:

  • the entity utilising the property is a charitable institution; and
  • the land is used by that entity exclusively for a charitable purpose, or the land is vacant and is held for future charitable use.

Council rates

Council rates exemptions are provided for charities under the Local Government Act 1989.  In order for a property to qualify for an exemption the property must be used exclusively for charitable purposes.

Land tax and council rates exemptions for charities that are tenants

Charities don’t need to be the owner of a property in order for an exemption to be granted.  A charity that is a tenant can make an application for an exemption for land tax and/or council rates.

You may need authorisation from the taxpayer (the landlord) to make the exemption application.

There is likely to be some benefit in making an application for a tenanted property, since:

  • the charity may be directly or indirectly paying land tax and/or council rates through rent and outgoings; or
  • the landlord may be willing to pass on, in full or in part, the land tax and/or council rates savings to the charity.

Retrospective exemptions

Applications for exemptions are normally granted for current and future assessments.  However, in some instances retrospective applications may be successful, and it is worth making a retrospective request alongside any request for an exemption for current or future land tax and/or council rates.

How we can help

If you need assistance with seeking a charitable exemption for land tax or council rates, please do not hesitate to contact us.