Welcome to the first article in our series on Special Disability Trusts (SDTs), where we hope to demystify particular aspects of these trusts, and highlight the benefits, eligibility requirements and restrictions to look out for.

Planning for a loved one

When planning or advising about how to secure the financial security of a loved one with a disability, two prominent goals stand out:

  1. Protecting the person from poor decision making and exploitation from others; and
  2. Preserving the person’s receipt of the Disability Support Pension (DSP).

In providing protection, it is common to use trusts, where assets will be managed for the person’s benefit by a trustee (look out for a future article on choosing a trustee).

To ensure that there is minimal impact on the person’s DSP when providing financial support, an understanding is needed about how Centrelink go about assessing the income and capital of a person receiving the DSP.  The tables below set out the most common tests that apply when Centrelink is making these assessments.

These tables show the standard tests, and can be affected by factors such as the age of the person, if they are getting rent assistance, have children, are permanently blind or living outside of Australia.

Centrelink – Pension Assets Test from 1 July 2020

Full pensions reduce when the assets are more than the limit for the person’s situation:

SituationHomeownerNon-homeowner
Single$268,000$482,500
A couple, combined$401,500$616,000

Part pensions cancel when the assets are over the cut off point for the person’s situation:

SituationHomeownerNon-homeowner
Single$583,000$797,000
A couple, combined$876,500$1,091,000
A couple,
separated due to illness, combined
$1,031,500$1,246,000

The assets that Centrelink will take into account include the value of things like:

  • Bank accounts and cash
  • Financial investments, such as shares, managed investments, money loaned to others
  • Home contents, personal belongings, vehicles
  • Real estate (other than the person’s main residence)
  • Annuities and other income streams and superannuation pensions
  • Businesses, partnerships, private trusts and private companies.

The “attribution rules” introduced into the Social Security Act 1991 (Cth) in 2002, provided the ability for Centrelink to attribute a percentage of the value of the assets and income of a designated private trust or a designated private company for the purpose of means testing a particular individual.  This attribution applies if Centrelink determines that the person can receive a distribution of income or capital from the trust or company.

However, where the trust is an SDT, the attribution rules do not apply in respect of the allowable concessional amount of capital and any right or interest the SDT has in the principal beneficiary’s main residence.  The allowable concessional amount available to the principal beneficiary as at 1 July 2020 is $694,000.

Centrelink – Income Test from 1 July 2020

The standard income test for assessing someone in relation to a DSP is:

SituationUp to $178 per fortnightOver $178 per fortnight
Single with no childrenFull PensionDSP reduces by 50 cents for each dollar over $178
SituationCombined income
up to $316 per fortnight
Combined income
over $316 per fortnight
A couple living together
or apart due to ill health
Full PensionDSP reduces by 50 cents for each dollar over $316

However, income generated from the investment of assets in an SDT is excluded from the income test assessment of the principal beneficiary.

For income tax purposes, all income generated in the SDT, including unexpended income is taxed at the principal beneficiary’s marginal rate, rather than the highest marginal rate.

How we can help

If you or someone you are advising, are wanting to provide financial support (either during their lifetime or after their death) to a person who is receiving the DSP, the ability to use a SDT to hold assets and generate income could be the answer to both protecting the assets and preserving the DSP.

Look out for the next article in our series, when we discuss the eligibility requirements for a person to be the beneficiary of a Special Disability Trust. For more information or guidance, please do not hesitate to contact us.

With just 4 months to go until schools have to comply with the new updated Guidelines to the Minimum Standards, Moores is covering this key topic in our upcoming education webinar.

Join experts Cecelia Irvine-So and Rebecca Lambert-Smith, as we cover off the new standards and things you need to know, including:

  • Board rules around conflicts of interest;
  • Validation of business plans;
  • “Prohibited arrangements” and compliant procurement;
  • New child safety requirements; and
  • All things ELC – from your constitution to compliant operation.

And we want to hear from you! Please let us know your burning questions during the registration process and we will be sure to cover them in this session or the next!

Many of us are looking forward to the roll-out of the COVID-19 vaccine as a key milestone along the path to “normal”. Some employers are keen to see their employees vaccinated because it reduces COVID-related risk for all in the workplace, clients and employees alike.

Key Updates

  • The priority COVID-19 vaccination program will commence in late February followed by community vaccinations from May 2021. The roll out will be in phases with the top priority being quarantine and border workers, priority groups of frontline healthcare workers (as agreed with State and territory governments), aged care and disability care staff, and aged care and disability care residents. The summary of the current roll-out strategy is available here. (Note that under 18s will only be vaccinated if medical advice indicates that it is safe to do so.)
  • The COVID-19 vaccine will be free for all Medicare-eligible individuals.
  • So far, the Federal, State and Territory Governments have indicated that COVID vaccinations will not be compulsory, but they will strongly encourage people to be vaccinated. 
  • The Federal Government has stated that it does not intend to add the COVID-19 vaccination to the “No Job No Play” policy. The “No Jab No Play” policy is a Federal policy that withholds certain benefits and rebates from parents whose children have not received key vaccinations. It also imposes penalties on childcare centres that admit unvaccinated children.
  • In 2020, the Victorian State Government passed the Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Act 2020 (Vic) which allows the Secretary of the Department of Health to issue directions to the Ambulance Service, public and private hospitals, day procedure centres and mobile health services to require persons employed or engaged at the establishment to be vaccinated or to prove immunity against a specified disease. The legislation says that the Secretary’s directions do not constitute discrimination on the basis of political belief or activity or religious belief or activity under Victorian equal opportunity laws. 

    When introducing this legislation, the Victorian Government justified this measure on health and safety grounds as part of its statement of compatibility with the Charter of Human Rights and Responsibilities, noting that:

    • vaccines are highly effective and safe,
    • healthcare workers are at particular risk of being infected with communicable diseases and transmitting those preventable diseases,
    • the Secretary’s direction under this legislation does not mandate that people will be vaccinated without consent. A refusal to be vaccinated will have consequences on the worker’s employment.

Are employers legally permitted to require its employees to be vaccinated?

An Occupational Health & Safety (OH&S) Question

Vaccine policies have been around for many years, particularly in the health sector.  Under State and Territory OH&S laws, employers and occupiers of workplaces (Duty Holders) are required to ensure, so far as is reasonably practicable,[1] the health and safety of their workers and third parties such as customers or clients. Employees are also required to take reasonable care of their own health and safety and of others’ health and safety in the workplace. 

A Duty Holder needs to eliminate the risk to health and safety so far as is reasonably practicable, and if it is not reasonably practicable to eliminate it, it must reduce the risk as far as reasonably practicable.[2] In the context of COVID-19, employers should consider the following:

Factors relevant to what is “reasonably practicable”[3]COVID-19 – GenerallyWorkplace specific issues
The likelihood of the hazard or risk concerned eventuating.COVID-19 is more contagious than many communicable diseases we have seen, with certain strains more contagious than others.Some workplaces where social distancing is difficult or personal touch is inherently part of the service will have a higher likelihood of the COVID-19 risk eventuating.
The degree of harm that would result if the hazard or risk eventuated.The consequences of contracting COVID-19 can be extremely serious. Whilst certain “at risk” groups are known, there are many outside those at risk groups who have died after contracting COVID-19.Some businesses serve particularly vulnerable clients, such as older people and people with disabilities.
What the Duty Holders knows about the hazard or risk.Whilst our knowledge of COVID-19 is increasing, there is much that is still unknown.The knowledge a Duty Holder should have about the virus is probably similar across all sectors. All Duty Holders have an obligation to understand the risks.
The availability and suitability of ways to eliminate risk.A vaccine is the most straightforward way of reducing (not eliminating) the risk, but there are other ways, such as regular cleaning, providing personal protective equipment, avoiding shared tools, and providing appropriate amenities.Some workplaces might have other methods of managing the risk (e.g. having all employees working from home). A 100% working from home model is unlikely to be practicable for the majority of employers in the medium to long term.

Employers also need to consider how they should consult with employees about their vaccination strategy. Under the Victorian OH&S Act,[4] employers are required to consult with affected employees when making decisions about measures to be taken to control risks to health and safety. A policy that has been subject to consultation is less likely to be challenged by employees, and a court might take that into account in assessing the reasonableness of a business’ vaccine policy.

OH&S is not a carte blanche – Lawful and reasonable directions

OH&S considerations might make a vaccination policy/directive lawful. Employees are only required to follow “lawful and reasonable” directions from their employer.

In a recent Fair Work Commission case, Deputy President Asbury indicated that a policy requiring mandatory vaccination may be lawful and reasonable in the context of the employer organisation’s operations which involved the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason.[5]

What is reasonable in one workplace and one employment context, might not be reasonable in another. The important case of Glover v Ozcare is currently before the Fair Work Commission and is expected to provide additional guidance for employers on the lawfulness and reasonableness of vaccines. Employers are encouraged to seek legal advice in relation to their specific operations.

No law against encouraging employees to get a vaccine

After going through the above analysis, some employers might consider that it can effectively manage OH&S risks by encouraging employees to get vaccinated, for example, by offering paid time off for employees to get the vaccine.

I want to mandate vaccinations. What should I do?

While we wait for specific guidance from the Courts or the Fair Work Commission on an employer’s right to mandate vaccines, here are some things to bear in mind:

  • Can risks be effectively managed by encouraging employees to obtain the vaccination rather than requiring it?
  • If you’d like to make vaccination a condition of employment for new and existing staff, is vaccination an inherent requirement of an employee’s job, and is it adequately addressed in your policies and employment contracts?
  • Consider the factors outlined in the above table on a role or team basis. In particular, consider whether all employees need to be vaccinated. It may be that only those employees that work with vulnerable individuals or cannot work from home need to be vaccinated.
  • Address the possibility that an employee might not be able to be safely vaccinated for health reasons. What evidence might you require to grant a medical exemption under your policy? How would you manage the health and safety of that unvaccinated employee, and those in contact with them?
  • Consider how you would consult with employees about your vaccination policy?

How we can help

For more information or guidance regarding mandatory vaccinations or employment advice regarding COVID-19, please do not hesitate to contact us.


[1] All Australian OH&S legislation, except WA, expresses the duty as requiring the employer/occupier to do what is “reasonably practicable” standard. The “practicability” standard in WA is interpreted as effectively meaning the same as “reasonably practicable”.
[2] Section 20(1) of the Occupational Health &Safety Act 2004 (Vic). Other State and Territories’ OH&S legislation imposes similar duties.
[3] Section 20(2) of the Occupational Health &Safety Act 2004 (Vic)
[4] Section 35 of the Occupational Health and Safety Act 2004 (Vic)
[5] Ms Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083, [32].

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 for a free webinar 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

To assist families with planning and support beyond their estate plans, Moores has partnered with Future Living, an organisation dedicated to helping parents plan for the future of their child with a developmental disability. They understand the challenges parents face in planning for their child’s long-term future and offer a unique range of disability planning advice and support in direct response to the question ‘Who will be there when we are not?”

Future Living have developed the Safe & Secure online resource where you can learn how to take the steps that will safeguard your child’s future. Click on the following link to access the resource www.safeandsecure.org.au and learn how to build a roadmap to protect your child’s long-term future from the comfort of your own home. With unlimited access, this online resource is filled with practical, relevant information from disability professionals, including Moores’ expert estate lawyers.

You can also visit our Vulnerable Beneficiaries page for more information.

The unprecedented nature of 2020 had a significant impact on child safety. Most organisations were required to shift the majority, if not all, of their interactions with children online. At the same time, many anticipated legislative reforms were postponed for a year.

As your organisation begins to plan for 2021, child safety needs to remain a key priority. Organisations need to be aware of the latest trends, developments and legislative reforms. We recommend that organisations take proactive steps to strengthen their approach to child safety.

Download our free guide by registering below to help your organisation set out your child safety agenda for 2021.

For more information regarding your child safety obligations, please do not hesitate to contact us.

Register:


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As the use of apps and social media amongst young people have continued to rise, so too have opportunities for abuse and misuse. In 2020, the Office of the eSafety Commissioner saw record highs in reports of cyberbullying, image-based abuse and illegal and harmful content, with a 40% increase in the number of cyberbullying reports alone. Documentaries such as The Social Dilemma also helped to raise alarms about the impact of social media usage.
 
As organisations resume their face-to-face interactions with children, they should revisit their strategies to effectively safeguard children from online abuse.
 
Moores’ webinar recording on Safer Internet Day explores:

  • Trends in social media usage amongst young people
  • Key concerns and recent case studies
  • Emerging issues for organisations
  • Practical tips for creating a child safe online environment

The High Court handed down its decision yesterday in Westpac v ASIC [2021] HCA 3. 

The decision gives clarity around fundamental questions in financial planning – what is financial product advice?  How is personal advice different to general advice?  How do the differences between personal and general advice relate to the best interests duty?

The matter concerned a campaign by Westpac’s “Super Activation Team” which was tasked with writing to and then calling existing BT super fund members and encouraging them to roll any other super accounts into their BT super funds.  Staff were trained on the difference between general and personal advice.  Westpac provided staff with a script for the calls.  The script required the staff to ask customers about their personal financial circumstances including what their other super balances were. 

ASIC alleged that Westpac’s campaign was the provision of financial product advice, personal financial advice (without a license) and that the bank had failed to act in the clients’ best interests in relation to that advice.

The High Court found that:

  • Westpac did provide personal financial advice.  The fact that a disclaimer had been given (“everything discussed today is general in nature”) and that the advice was free was not enough to characterise the advice as general advice.  The Court found that a reasonable Westpac customer would expect that the bank was taking into account one or more of their personal objectives, financial situation or financial needs.
  • Westpac contravened the “best interests” duty.  Based on the call scripts, the Court found there were no substantive steps taken to determine whether the rollover was in the customer’s best interests. 

Clarification of the Corporations Act provisions concerning personal versus general advice and the “best interests” duty is welcome. 

The decision is relevant to advisors engaged in the provision of advice to their clients in at least the following respects:

  1. Advisors who do not hold an appropriate financial services licence are exposed where they provide “financial product advice”.   The Court noted that financial product advice includes when advice given is intended to influence the party in making a decision about a financial product – retain or industry superannuation accounts, life and income insurance are all examples of  financial products;
  2. Even for licencees, if the licence is restricted and does not permit the provision of “personal” financial advice, care will need to be taken not to cross the line into territory where the objectives and circumstances of the particular person are known to the advisor.    A disclaimer asserting the advice is general in nature, may not provide any protection from liability.
  3. Although the case does not directly deal with the question of liability from an advisor to the client who may suffer financial loss as a result of provision of unlicensed personal financial advice, in general terms it would seem that a breach of these regulations would bolster any claim by a client against an advisor for negligence or for misleading or deceptive conduct.

How we can help

For further information or assistance regarding any of the above, please do not hesitate to contact us.

Moores’ child safety experts, Skye Rose and Rena Ou Yang were recently interviewed as guest speakers for the Child Safeguarding Podcast by Poynting Consulting and Advisory. The Child Safeguarding Podcast explores how people and organisations are embedding the National Principles for Child Safe Organisations and creating child-safe environments to protect children from abuse, neglect and exploitation in Australia.

Moores is dedicated to facilitating child safe organisations and empowering children and young people. From preventative work to responding to concerns, we harness our expertise to ensure a supportive and child centered approach. Learn more about our expertise in child safety.

Listen to SO1E06 with Rena Ou Yang:

Listen to SO1E04 with Skye Rose:

2020 was one of the most turbulent years for employers and employees in recent memory.

We saw worldwide recessions, state directed lockdowns, and pressure for employers to rapidly pivot to remote and virtual working environments.

From a workplace relations perspective, the pandemic prompted much more than a temporary homeworking experiment and a short term logistical challenge. It tested the foundation upon which our working lives operate, and required organisations, leaders and employees to embrace significant changes to the status quo.

In the midst of these challenges, the federal government moved swiftly to establish IR Working Groups tasked with finding ways to urgently rebuild jobs lost as a result of COVID-19, while our federal courts interpreted historical workplace legislation through the lens of a global pandemic.

For good or for bad, the challenges of 2020 present a learning tool for your workplace relations strategy moving forward. In this article we explore the key learnings from 2020, and what to expect for the year ahead.

1. Working From Home is Here to Stay… at least in some form

One positive outcome of the pandemic is that many industries have embraced remote working.

Working from home arguably offers opportunities to improve our working lives – be it through reduced commuting, greater efficiency and productivity, or flexibility to integrate our professional and personal responsibilities.

For industries that continue to embrace remote working or move towards hybrid models, employers need to balance the improvements with the emerging risks:

  • Data loss prevention – is your confidential information being printed, copied to a USB or otherwise misappropriated by your remote staff? Can confidential discussions be overheard in the home?
  • Occupational health & safety – organisations were initially forced to transition to a virtual environment with little to no notice. Beyond the obvious step of assessing the ergonomic set up for employees at home, what steps has your organisation taken to ensure that your staff are physically and mentally safe in a remote environment?  Will it direct staff to obtain a COVID-19 vaccination, and on what basis?
  • Workers’ compensation liability – the rise of remote working will inevitably lead to disputes about the boundaries of the remote workplace, where it starts and where it finishes.
  • Tracking hours of work and preventing underpayments – record keeping is not only a legislative requirement for some employees, but a failure to implement accurate tracking measures can lead to costly underpayment disputes. Does your organisation properly record and monitor the working arrangements and hours of your staff?

2. Equal Employment Opportunity Compliance

One of the additional challenges with continued remote or hybrid working models is a perceived lack of employer visibility regarding EEO compliance.

The rise of remote working has seen bullying, discrimination and harassment materialise in different ways:

  • Inappropriate workplace behaviour is less likely to be witnessed.
  • The anonymity of virtual communications (such as email or instant messaging software) can lead to disputes regarding misconceptions and misunderstandings.
  • The increased use of videoconferencing software can lead to changes in employee behaviour, particularly where traditional office or other professional atmospheres have been traded for a more relaxed home-based environment.
  • For many, the stress of 2020 through lock downs and home schooling has prompted the need for additional support and accommodation on the basis of disabilities and family responsibilities.

We’re also likely to see debate about the extent to which employers can direct employees to obtain a COVID-19 vaccination, with some objecting to the direction on the basis of their disability, religion or political belief.

These challenges present an opportunity for employers to revisit their EEO compliance training and ensure it is contemporary and fit for purpose.

3. Rise of the Side Hustle

Did you hear about the two teenage entrepreneurs that made $70,000 over the course of a few months operating an E-Commerce store and selling brainteaser puzzles to bored Australians during lockdown?

2020 has seen the rise of the side hustle, enabling people to pursue creative interests or source alternative income.

It is generally settled that an employee’s private life is ‘out of bounds’ and beyond an employer’s jurisdiction.  In very limited situations, an employer may have some rights to regulate an employee’s external activities, which may include circumstances where the:

  • external activity is conducted during work hours
  • external activity operates in competition to the employer’s business
  • employee diverts business opportunities away from the employer
  • external activity utilises the employer’s confidential or proprietary information, or
  • external activity causes the employee to be fatigued at work.

The circumstances of each case will impact an employer’s options to respond to the issue.

Importantly, employers should ensure that any disciplinary action is proportionate to the relevant conduct. In Jackman v Lek Supply Pty Ltd [2018] FWC 6154, Commissioner McKinnon ordered reinstatement of a worker dismissed for conducting personal business affairs during work hours (specifically, the employee had responded to a customer complaint relevant to her hobby business making and selling candles and other related goods).

In this case, the Commissioner acknowledged that, during working hours, the employee should have devoted her full attention to her employer’s interests. However, the conduct could have been rectified by a written warning, and there was no evidence to suggest that her employment duties and personal interests could not co-exist. This can be contrasted to other situations where external activities encroach on an employee’s ability to perform two jobs (e.g. see Bertos v Northern NSW Football Limited [2020] FWC 2819), or where an employee uses an employer’s email and customer lists to set up a related business (e.g. see Post v NTI Limited [2016] FWC 1059).

4. Casual Employment

Long term casual employment remained an unresolved issue for employers throughout 2020, particularly following the judgement in WorkPac Pty Ltd v Rossato [2020] FCAFC 84 whereby the full federal court:

  • awarded Mr Rossato, an employee engaged on an ostensible casual basis, the paid leave entitlements of a permanent employee; and
  • rejected the employer’s proposition that a casual loading should be set off against the outstanding leave entitlements.

At the time of writing, the High Court has granted special leave for the Full Federal Court’s decision to be appealed, although in the absence of a national and legislated definition, casual employment remains a void of ongoing uncertainty for employers.

The federal government’s IR Omnibus Bill, which passed through both houses of parliament in December 2020, proposes to curb this uncertainty by offering the following definition of casual employment:

“A person is a casual employee of an employer if:

  • an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and
  • the person accepts the offer of that basis; and
  • the person is an employee as a result of that acceptance”.

However, we can expect the Omnibus Bill to face continued opposition and criticism in the coming months, including from the Australian Labour Party whom have described the proposed legislation as ‘the worst attack on workers since WorkChoices’.

5. Wage theft and criminalising underpayments

For the most egregious underpayments, the federal government’s IR Omnibus Bill proposes to introduce criminal prosecution for employers that dishonestly engage in a systematic pattern of underpaying employees.

Maximum penalties are set to involve four years imprisonment, $1.11 million fines for individuals and/or $5.55 million fines for corporations.

It is not entirely clear how, if at all, the federal reforms will interact with the existing Victorian Wage Theft Act 2020 which is due to commence on 1 July 2021. It is possible that, should the federal government’s IR Omnibus Bill be enacted into law, the validity of the Victorian legislation could be challenged on constitutional grounds, rendering it obsolete.

However, irrespective of which regime will apply in 2021, employers can expect regulator powers (such as the Fair Work Ombudsman) to expand with a view to facilitating coercive measures, enforcement and deterrence.

Now more than ever, employers are urged to audit or health check their compliance systems to ensure they are providing minimum employment entitlements under the National Employment Standards and their applicable industrial instruments.

How we can help

If you would like support on workplace relations and future proofing your organisation, please contact do not hesitate to contact us.

Click here to register for a link to our recent webinar recording which takes a fresh look at workplace relations in 2020, and how you can best prepare your organisation for what lies ahead,