Moores Practice Leader James Dimond recently joined ABC Radio National’s The Law Report to discuss fraud, undue influence and suspicious circumstances surrounding Wills.
In the first episode of The Law Report’s special series Over My Dead Body, “Can a stranger inherit everything you own?”, James speaks with presenter Damien Carrick about when a Will may be challenged, including where there are concerns about manipulation, pressured witnesses or whether a person’s testamentary wishes were genuinely their own.
James is an Accredited Specialist in Wills & Estates and leads Moores’ Elder Financial Abuse and VCAT Guardianship Disputes Team. He has extensive experience resolving complex disputes involving Wills, estates and trusts, including matters where concerns about vulnerability, influence or financial abuse arise.
Listen to James’ discussion on ABC Radio National
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Since this article was first drafted, Victorian public school teachers and education support staff have voted to accept the Victorian Government’s revised wages and conditions offer. The agreement provides wage increases of approximately 28.3% to 32.4% over four years, together with a $2,000 commencement payment and a range of workload and conditions improvements.
While the agreement applies only to the government sector, its significance extends well beyond it. Independent schools are likely to face increased expectations around remuneration, workload, flexibility and career conditions in an already competitive labour market. At the same time, most independent schools will not receive additional funding linked to these outcomes, creating a challenging tension between market expectations and financial sustainability. This tension has merely crystallized today, rather than resolved.
School leaders are currently navigating a convergence of regulatory and industrial developments that, taken together, are likely to reshape workforce management and community expectations over the next 12–18 months.
Recently, Cecelia Irvine-So, Practice Leader, Education Law and Privacy, and Skye Rose, Practice Leader, Safeguarding and Discrimination, sat down to discuss what these changes mean in practice for schools. Three key themes emerged.
The Victorian Government has not reached agreement with the AEU that would have delivered pay increases of roughly 28–32% over four years for government school staff.
Apart from ongoing uncertainty, for independent schools, the key issue is not the detail of the proposed agreement but its market effect.
As Skye put it:
Whether a school is operating under an enterprise agreement or is governed by the modern award, a materially higher government-sector benchmark changes the conversation. For schools with an EA, it creates pressure well before the next bargaining round, particularly around attraction, retention and staff expectations. For award-reliant schools, it sharpens the gap between the legal minimum and what the market may now expect above award rates. Either way, schools will need to manage that tension against funding settings that have not shifted in the same way.
There are two structural realities to keep in mind:
The practical result is a growing gap between labour market expectations (lifted by the government settlement) and the funding envelope within which independent schools must operate.
School Community Safety Orders have been in place since 2022, allowing principals to restrict parents or other adults who engage in harmful or abusive behaviour. In my experience working with clients, there are some inherent limitations in the scheme, notably the requirement to apply to enforce the order, compared with the ability to enforce trespass notices via a call to Police.
Safety orders have been of most help to schools in two main circumstances, specifically:
The significant development now is the proposed strengthening of that scheme to more clearly capture online conduct, including social media, messaging platforms and broader digital communications.
The policy intent is clear: abuse does not stop at the school gate.
As Skye observed:
Some of the most damaging conduct schools are dealing with now is not happening at reception or in the car park. It is happening in semi-private digital spaces, including parent WhatsApp groups, year-level chats and after-hours message chains. The practical challenge for schools is not just whether the law captures that conduct, but how they identify it, evidence it and respond proportionately.
We will see how enforcement pans out, in view of the often hidden nature of online conduct.
This week, the Victorian Government introduced legislation to enshrine a legal right to work from home two days per week for employees whose roles can reasonably be performed remotely.
This is a significant shift, and we note:
As Skye emphasised:
Schools are built around in-person teaching, supervision, student support and community life. That makes physical presence essential for many roles, but not necessarily for every role or every duty. The task for schools will be to identify where on-site work is genuinely required, where flexibility is possible, and how those decisions can be justified if challenged.
For executive teams, the early issues are likely to include role segmentation, consistency and fairness across staff, interaction with existing agreements, and ensuring decisions are defensible where requests are refused.
What links these developments is their cumulative effect. They point to a school environment where labour market expectations are rising faster than funding settings, workplace safety extends into digital spaces, and flexibility is becoming a legal entitlement rather than a managerial choice.
As Skye summed it up:
Each of these developments can be managed. The challenge is that they are converging at the same time, and each one goes to a core aspect of workforce governance: affordability, safety, flexibility, and defensible decision-making. Schools that prepare early will be better placed than those responding issue by issue.
For boards and executive teams, the practical response is to step back and consider workforce strategy, clarity on flexibility, boundaries on parent conduct, and how to have honest conversations about affordability.
Moores works closely with schools to navigate the intersection of workforce management, safeguarding obligations and community expectations. Our Education Sector Specialists can assist boards, principals and executive teams to prepare for these developments in a practical and defensible way.
Please contact us for more detailed and tailored help.
Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.
At Labor’s national conference in Adelaide last month, the Prime Minister announced a new federal Fair Work Court aimed at providing a simpler, faster and lower cost forum for resolving workplace disputes. The announcement was made jointly with the Minister for Employment and Workplace Relations, Amanda Rishworth, and the Attorney-General, Michelle Rowland, and follows growing pressure on the current system to deal with rising claim volumes and lengthy resolution times. Here is what we know so far, what remains unclear and what employers should be considering now.
The Fair Work Court is a proposed new federal court, staffed by specialist judges with workplace relations expertise, designed to work alongside the existing Fair Work Commission. It would be the first dedicated federal industrial court established in Australia since the Industrial Relations Court of Australia, whose jurisdiction was transferred to the Federal Court when it was abolished in 1997. The Government has described it as targeting underpayment claims and other industrial disputes, with the aim of making these matters faster and cheaper to resolve than under the current system.
The Government’s announcement identifies several likely features of the new Court:
The Government’s announcement comes against the backdrop of significant pressure on the FWC’s workload, and recent measures taken to help alleviate it. In a presentation to the Victorian Bar Association in February this year, Fair Work Commission President Justice Adam Hatcher noted that claims before the Commission had surged by approximately 70% over three years, a rise he attributed largely to the growing use and availability of AI tools.
The Government will consult on the design of the proposed court this year. Consultation will help shape how the Court works, including how it will work with the existing FWC, and how it will improve access to justice and better support workers and employers navigating disputes. Among other matters, the following are likely to need resolution during that process:
If the Court delivers a simpler and lower-cost pathway, it could materially change how underpayment and other workplace claims are brought and resolved. Greater accessibility may increase claim volumes, including smaller claims that may not have been commercially viable under the current federal court pathway. While it will be some time before we see what emerges from the consultation process, employers should treat this announcement as a timely reminder to audit award coverage, classifications and payment practices before the forum for testing them becomes much more accessible.
Our Workplace Relations team helps employers identify and address payroll risk through targeted reviews of award coverage, classifications, payroll settings and payment practices. We can also help you assess what the proposed Court may mean for your organisation’s dispute strategy and compliance priorities as further detail emerges.
Victoria’s proposed work-from-home reforms have entered a period of political uncertainty following the appointment of Premier Ben Carroll.
The Equal Opportunity Amendment (Work from Home) Bill 2026 (Vic) (WFH Bill) was introduced on 16 June 2026 and would, if passed, create a statutory right for eligible Victorian employees to work from home for up to two days per week where it is reasonable to do so. However, despite an original proposed commencement date of 1 September 2026, the WFH Bill remains before Parliament, and its future is far from certain (Update as of 11 August 2026 – Premier Ben Carrol has delayed the start of the WFH Bill until at least 1 July 2027 citing a need to work with the business community to “make sure the policy is right”.)
In this article, we look at key aspects of the current WFH Bill, its likely impact on employers, and the practical steps organisations should consider while the legislation remains before Parliament.
Importantly, the WFH Bill does not create an unrestricted right to work from home. Rather, it creates a statutory framework through which eligible employees may work from home for up to two days per week where it is reasonable for them to do so.
If passed in its current form, the WFH Bill would represent a significant departure from the existing framework under the Fair Work Act 2009 (Cth) (FW Act). At present, eligible employees may request flexible work arrangements, including working from home, and employers may refuse those requests on reasonable business grounds.
Under the Victorian proposal, eligible employees would instead provide a written work-from-home notice identifying when and where they propose to work from home. The employer would then be required to assess whether the arrangement is reasonable under the statutory framework and provide a written response. The practical significance of the WFH Bill lies not only in the right itself, but in the shift in responsibility from an employee seeking approval to an employer needing to justify a refusal.
The proposed right applies to full-time and part-time employees, as well as casual employees engaged on a regular and systematic basis, where it is reasonable for their work to be performed at home. Part-time and casual employees would receive an equivalent pro rata entitlement.
Certain categories of workers are excluded, including employees on probation, apprentices, trainees, interns, graduate program participants, work experience participants, irregular casual employees, and some gig economy workers.
Employers should also be aware that the interaction between the WFH Bill and existing flexible work provisions under the FW Act is not straightforward. Employees who are already entitled to request flexible working arrangements under the FW Act in certain circumstances may continue to use that federal framework rather than the Victorian notice process. Existing workplace flexibility and hybrid working policies may also continue to operate alongside the proposed scheme.
On 10 August 2026, Premier Ben Carroll announced that the proposed commencement of the WFH Bill would be delayed from 1 September 2026 until at least 1 July 2027. The delay provides additional time for consultation with the business community and for the Government to consider whether amendments are required before the WFH Bill proceeds.
Under the WFH Bill, an employee seeking to exercise the right would provide a written work-from-home notice specifying the days, times and location from which they intend to work. Employers would then have 21 days to respond.
While much of the public discussion has focused on the headline entitlement of “two days per week”, the more significant change for many employers may be the decision-making framework that accompanies it.
The WFH Bill limits the matters that employers can take into account when assessing whether it is reasonable for an employee to work from home. Relevant considerations include whether the inherent requirements of the role can be performed remotely, whether physical attendance is required to access equipment or facilities, and whether the arrangement would have a significant adverse impact on matters such as productivity, customer service or confidentiality.
If an employer concludes that a proposed arrangement is not reasonable, it would need to provide written reasons explaining that decision. As a result, the quality of an employer’s role analysis, operational evidence and decision-making records may become increasingly important.
If enacted, disputes relating to the proposed right would be dealt with through the Victorian equal opportunity framework.
Complaints may initially be directed to the Victorian Equal Opportunity and Human Rights Commission and, if unresolved, may proceed to the Victorian Civil and Administrative Tribunal (VCAT). VCAT would have the power to make orders affecting the work-from-home arrangement in question.
For employers, the practical risk is not simply the prospect of an adverse decision. Decisions that are poorly documented, inconsistent, or unsupported by evidence are likely to be more difficult to defend if challenged.
One of the most controversial aspects of the WFH Bill is the requirement for employers to cover reasonable costs necessary to facilitate an approved work-from-home arrangement. Employer groups have argued that the concept of “reasonable costs” creates uncertainty regarding the potential financial exposure for businesses.
Recent reporting suggests that the Government may remove aspects of the proposed obligation relating to remote work set-up expenses. However, no formal Government amendments have yet been recorded in Parliament. Until the legislation is finalised, employers should be cautious about assuming that either the current provisions or reported alternatives will ultimately become law.
The significance of the WFH Bill extends beyond the number of days employees may work remotely. For many employers, the more important question is how the proposed reforms may change the way work-from-home arrangements are assessed, approved and challenged.
Taken together, these reforms have the potential to shift work-from-home discussions from a matter of organisational preference to one of legal entitlement. For employers, the key challenge may be adapting existing workplace practices to a framework that places greater emphasis on individual assessment, justification and accountability.
While the legislation’s final form remains uncertain, employers do not need to wait for the outcome before considering how the proposed reforms may affect their workforce and workplace practices.
In particular, employers may wish to:
While there is no need for employers to overhaul their existing hybrid work arrangements at this stage, now is an appropriate time to identify potential areas of risk and prepare for a range of legislative outcomes. Organisations that start considering these issues early will be better placed to respond quickly if the reforms proceed.
The proposed reforms have the potential to introduce a fundamentally different framework for work-from-home decision-making in Victoria.
Our Workplace Relations team can assist employers to understand the WFH Bill’s practical implications, assess current hybrid working arrangements, navigate the interaction with the FW Act, review policies and procedures, and develop a defensible process for assessing and documenting work-from-home decisions.
For employers with significant Victorian workforces, national policy settings or operational requirements that depend on workplace attendance, now is an appropriate time to understand the potential impact of the proposed reforms and prepare for a range of possible outcomes.
Financial loss is not always the result of market conditions, commercial risk or bad luck. Sometimes, it is only when a client or their advisor takes a closer look at what has happened that concerns emerge about the advice or actions of a previous professional.
A loss has been caused by a professional who failed to exercise reasonable care, acted outside their authority, gave unsuitable advice, missed a critical deadline, or failed to protect the client’s position.
We are seeing an increasing number of claims involving professionals, including against lawyers, financial advisers and stockbrokers. These matters often involve substantial capital loss, but the true loss can be much broader. A client may also have lost the opportunity to deploy that money elsewhere, protect their financial position, pursue another investment, reduce debt, fund retirement, or preserve working capital for a business.
Not every poor outcome gives rise to a claim. Investments can fall, litigation can be uncertain, and commercial decisions can carry risk. The critical question is whether the professional met the standard expected of a reasonably competent practitioner and whether the failure caused loss.
Claims may arise where, for example, a financial adviser recommended an unsuitable strategy, failed to explain material risks, failed to consider the client’s objectives or risk tolerance, or placed the client into a product that was not appropriate for their circumstances. Claims against lawyers may arise where a limitation period was missed, advice on a loan fell short of the required standard or a client was not warned about a material risk. Claims against stockbrokers may arise where unauthorised trades were made, shares were sold without authority, a client’s mandate was exceeded, or an employee misappropriated client funds or assets.
A common reason clients do not pursue a claim is the assumption that it will be too difficult, too expensive, or that the professional will not have the resources to meet a judgment or settlement. In most professional negligence matters, there is likely to be professional indemnity insurance or other responsive cover. Where insurance is available, it can significantly change the commercial dynamics of a claim.
Insurance does not guarantee recovery, and every claim must be assessed on its facts. But it can provide a practical pathway to resolution, particularly where the claim is well-prepared, causation is addressed carefully, and the loss is properly quantified. In the right case, early investigation and strategic engagement with an insurer can deliver outcomes that restore the client’s financial position or materially reduce the damage suffered.
One of the most important issues in these claims is consequential loss. The immediate loss may be obvious: the value of shares sold without authority, money paid into an unsuitable investment, legal rights lost because of negligent advice, or capital eroded by an inappropriate strategy. But that is not necessarily the full extent of the damage.
Clients may also have lost opportunities that had real financial value. They may have been unable to purchase another asset, invest in a different opportunity, reduce interest-bearing debt, contribute to superannuation, fund business expansion, meet tax obligations, or maintain liquidity during a difficult period. Where those losses can be linked to the professional’s conduct, they should be considered as part of the claim.
Loss of opportunity can be particularly important. The law recognises that the loss of a real and valuable chance may itself be compensable. A client does not always need to show that an alternative outcome was guaranteed. In appropriate cases, the question is whether the client was deprived of a genuine opportunity with measurable value.
Referrers are often the first to identify that something is not right. A client may present with unexplained losses, missing shareholdings, unusual transaction histories, advice that does not match their risk profile, documents they did not understand, or a missed opportunity that has caused broader financial harm.
Potential red flags include:
Timing matters. Professional negligence claims can be affected by limitation periods, document retention issues, insurance notification requirements and the availability of evidence. Clients should obtain advice early, preserve all relevant records, and avoid assuming that a loss is unrecoverable simply because the professional denies responsibility or the underlying transaction appears complex.
Key documents will often include the professional’s file, engagement letters, written advice, file notes, emails, transaction records, account statements, instructions, portfolio histories, insurance correspondence and any complaints or internal reviews. A careful chronology is also valuable, particularly where the claim involves consequential loss or a lost opportunity.
Our Disputes team acts for clients in professional liability matters. We assess both liability and the claimable losses and can often achieve a commercial outcome without litigation. We have recently achieved successful outcomes for our clients against former solicitors who breached their obligations and against a former accountant for failing to consider tax consequences of a course of action, where the loss was identified by the client’s new accountant.
If you have a client who has suffered financial loss and there is a concern that professional advice, misconduct or unauthorised conduct may have contributed to that loss, it is worth having the position reviewed. The loss may well be recoverable, and it may be broader than the amount first apparent.
We’re proud to share that Moores has been ranked in the Chambers High Net Worth 2026 Guide for Private Wealth Law. Chambers is widely recognised as a leading independent authority on legal excellence, making this recognition a strong reflection of our ongoing commitment to delivering outstanding service to our clients.
Additionally, Practice Leader, Jennifer Dixon has received an individual ranking for Private Wealth Law, further affirming her expertise in the field.
Chambers applies a rigorous research methodology, placing significant weight on client feedback. We are honoured to have received such positive feedback from our clients and the broader market.
Our team of industry-recognised Private Client experts are dedicated to protecting our clients, their families and their estates. We excel in navigating complex legal landscapes and delivering clarity and certainty in all matters.
Our expert team is experienced in assisting families with complex Succession Planning arrangements as well as challenging and defending all manner of Disputes relating to Wills, Estates, Trusts, SMSF and Bequests.
For more information or to speak with one of our experienced lawyers, please do not hesitate to contact us.
Dying without a Will in Victoria when you’re separated but not divorced – and in a new relationship – can leave your estate split between people you would never have chosen. The Victorian Supreme Court’s recent decision in Nicholson v Sheils [2026] VSC 18 is the first case to test Victoria’s modernised intestacy rules for people with multiple partners. It is a cautionary tale for anyone whose paperwork hasn’t caught up with their personal life – and after 16 years as a family lawyer, I have seen this scenario play out more often than you’d think.
“Chris” died without a Will in November 2023, aged 64. He left behind his partner of seven years, “Sally‑Anne”, and an “ex‑wife”, “Jiembra”, from whom he had separated 20 years earlier in 2003 but had never divorced. Chris and Jiembra had two adult children.
Three years before his death, Chris and Sally‑Anne had bought a property together as tenants in common in equal shares, intended as their eventual retirement home. After a heart attack overseas, Chris died with Sally‑Anne at his side. Without a Will, his half share did not automatically pass to her.
In Victoria, dying without a Will means Part IA of the Administration and Probate Act 1958 (Vic) decides who gets what. Where a deceased leaves multiple partners and has children by one or more of them, the partners share the whole estate – in whatever shares they agree, or as the Court orders if a partner applies for a distribution order, or, failing either, in equal shares by default.
“Partner” includes a “spouse” (someone you are still married to) and the rather unromantically named “unregistered domestic partner” – broadly, the person you were living with on a genuine domestic basis at the time of your death, for at least two years if you had no minor children together.
At Chris’s death, Jiembra was still his spouse and Sally‑Anne was his unregistered domestic partner. Chris had two partners under the Act – a legal outcome he is unlikely to have intended.
Sally‑Anne applied to the Supreme Court for a distribution order – the Court’s broad power to allocate an intestate estate between partners in any way it considers “just and equitable”, including entirely to one partner.
Notably, this was the first time the Court had been called upon to consider an application for a distribution order since Part IA was inserted into the Act in 2017 to modernise Victoria’s intestacy regime. The old regime used a sliding scale based on how long an unregistered domestic partner had lived with the deceased – an approach the Victorian Law Reform Commission found unlikely to produce fair outcomes. The 2017 reforms replaced that formula with a flexible “just and equitable” discretion.
Justice Moore allocated the whole residuary estate (about $277,300) to Sally‑Anne. Key factors:
The Court did weigh some factors the other way – Sally‑Anne had already received Chris’s $170,000 superannuation death benefit, and Chris and Jiembra’s children would receive nothing through their mother’s line. But the estate was so modest – less than a partner’s statutory legacy – that allocating it entirely to Sally‑Anne was, his Honour found, consistent with community standards reflected in the Act.
Sally‑Anne got the outcome she wanted, but only after a stressful and expensive trip to the Supreme Court. A simple Will – or finalising a divorce decades earlier – would have avoided it. If you have separated but not divorced, or are in a new committed relationship, three things to do now:
Moores’ Estates team can help you avoid the situation Chris’s family found themselves in. We assist clients to put in place clear, considered estate plans – including Wills, powers of attorney and superannuation nominations – tailored to blended families, prior relationships and complex circumstances. If a dispute has already arisen, our Estate Litigation team has specialist experience in contested wills, estates and trusts matters, including intestacy applications like Nicholson v Sheils.
If you have any general queries about estate planning or distribution orders, please contact us.
Jacqueline Conquest has been a solicitor for 24 years, was previously an accredited specialist in family law, and now practises exclusively in deceased estate administration and litigation, together with VCAT guardianship matters, at Moores.
Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to your organisation.
A Special Disability Trust (SDT) is a specific form of trust commonly used for beneficiaries who meet the statutory definition of “severe disability” under the Social Security Act 1991 (Cth) (‘Social Security Act’)1. It is designed to provide financial support for care, accommodation and long-term welfare of an eligible beneficiary, commonly designated as a “Principal Beneficiary” while preserving the beneficiary’ entitlement to social security benefits, including the disability support pension. SDTs are frequently employed in succession planning, as they allow assets to flow seamlessly from the deceased estate into a protected legal structure for the ongoing benefit of the disabled beneficiary beyond the lifetime of parents or carers and finally to the residuary beneficiaries in accordance with the wishes of the donor(s).
The taxation regime applicable to SDTs further enhances their financial utility. Once an SDT is validly established with an eligible Principal Beneficiary, the Principal Beneficiary is deemed to be presently entitled to the income of the trust during their lifetime2, and the trustee is assessed on the net income of the trust (including capital gains) at the Principal Beneficiary’s marginal tax rate3. This ensures that the trust’s income is taxed at Principal Beneficiary’s marginal tax rate rather than at the penalty rates otherwise assessed to the trustee.
Further, any capital gain from a transfer of a capital gains tax asset to a SDT or a trust that becomes a SDT as soon as practicable after the transfer, is disregarded. In many jurisdictions, stamp duty relief is also available for eligible transfers.
From an estate planning perspective, SDTs serve as a secure, transparent, and enduring mechanism for protecting the welfare of individuals with severe disabilities. The trust structure ensures that the assets are used solely for the reasonable care and accommodation for the principal beneficiary.
The SDT also enables continuity of financial support and care beyond the lifetime of parents or carers, providing families with peace of mind that their loved one’s future needs will be met. Furthermore, the terms of the trust may specify how residual assets are to be distributed upon the death of the principal beneficiary.
Apart from the highly restricted eligibility criteria, limited ability on use of funds outside of care and accommodation needs of the Principal Beneficiary – i.e discretionary spending limited to $14,750 per annum (as at 1 July 2025) and stringent compliance rules to operate, we have also seen a common theme of certain uncertainties arising in relation to SDTs as to:
An SDT generally terminates upon the death of the principal beneficiary or when the trust’s funds are fully expended. At that point, the trust immediately ceases to qualify as a SDT under the Social Security Act.
Upon termination, the SDT ‘vests’, and the principles applicable to trust vesting should apply. ‘Vesting’ refers to the vesting of an interest rather than a position. An interest is regarded as having vested when:
The vesting of an SDT does not automatically result in the termination of the trust or the creation of a new trust. Vesting merely signifies that the beneficiaries’ interests have become fixed, not that the trust has ceased to exist7. In Taxation Ruling TR 2018/6: Income tax – trust vesting – consequences of a trust vesting, the Commissioner takes the view that where a trustee continues to hold property for takers on vesting, the property is held on the same trust as existed pre-vesting, albeit the nature of the trust relationship changes. The trustee’s role transitions from a duty to properly consider whether to distribute the net income of the trust in accordance with the discretionary power of appointment, to a duty to hold the whole of the capital and income for the benefit of the relevant beneficiaries.
Vesting itself does not compel the immediate transfer of trust property, however, beneficiaries are entitled to call for the transfer of the trust assets as soon as practicable once their interests become fixed8.
Upon vesting, the SDT’s assets vest in accordance with the terms of the trust deed – i.e in the residual beneficiaries specified in the trust deed, in the proportions nominated by the donor(s). This nomination can generally be found in Schedule B of the model SDT deed as prescribed pursuant to the Social Security Act.
From a taxation perspective, upon vesting, the special tax concessions afforded for SDTs cease to apply, and any income derived by the trust post Principal Beneficiary’s death is taxed under general trust taxation rules in Division 6 of Income Tax Assessment Act 1936 (Cth) (‘ITAA36’). This means the assessment of any income derived post Principal Beneficiary’s death will depend on whether there is any present entitlement to the trust income.
By way of an example, if an SDT was established under a Will, and the donor has nominated the funds back to his or her estate upon the death of the Principal Beneficiary, it could be that the estate account is reopened, and the funds are distributed as part of the estate. As no beneficiary can be presently entitled to income of an estate until it has been fully administered – i.e the residual amount can be ascertained after all debts, expenses, and liabilities are satisfied9, the trustee is likely to be assessed either under section 99 or 99A of the ITAA36 depending on whether the Commissioner is of the opinion that it would be unreasonable that section 99A should apply10.
Once the residual beneficiaries acquire a vested interest in the remaining trust assets and income, the relevant beneficiary or the trustee, in case of residual beneficiaries who are non resident or under a legal disability, will be taxed on their respective share of the trust income at their individual marginal tax rate11.
Alternatively, if the donor has directed the funds in the SDT directly to named beneficiaries as opposed to the estate, the interests of such beneficiaries should become ‘vested’ upon Principal Beneficiary’s death and the trustee of the SDT should hold the funds on trust for those beneficiaries until the distributions are made and the trust is wound up. In this scenario, any trust income derived post vesting should be made presently entitled to the residual beneficiaries together with the trust fund in the proportions as nominated by the donor and the beneficiaries will be taxed on their respective share of the trust income at their individual marginal tax rates.
What this means is that the uncertainties surrounding SDTs can be and should be managed and addressed right from the beginning at the planning stage so that there are no adverse tax consequences arising at the end.
As with any other trusts, the terms of the trust deed are paramount and, careful consideration should be given in nominating the residual/specified beneficiaries upon the end of the trust, and if an SDT is established under a Will, the terms of the Will should be in line with the terms of the SDT and ultimately your objectives.
The Wills, Estate Planning and Structuring team at Moores is one of the largest in Australia with expertise in trusts and taxation. We can provide strategic advice tailored to your specific circumstances and work with you and your advisors through complex structuring, succession planning and tax issues in relation to special disability trusts from planning stage through to administration of same upon vesting.
For more information and guidance, download our Estate Planning for your Vulnerable Beneficiaries fact sheet here.
If you have any general queries regarding a Special Disability Trust, please do not hesitate to contact us.
The Budget announcements of 12 May 2026 proposed changes to the taxation of discretionary trusts, including those created by a Will (testamentary trust). See our article here for our initial summary of proposed discretionary trust provisions.
There has been a significant policy change announced on 18 June 2026. Again, we do not have full details or proposed legislation, but the further announcement is that:
The announcement stated the implementation details will be included in further consultation.
In addition to the asset protection and other benefits offered by testamentary trusts, this announcement has the potential to make testamentary trusts an extremely valuable estate planning tool, potentially with access to tax rates that cannot be achieved through any other structuring options.
We await further details and the introduction of implementation legislation, to confirm the exact impact on our clients and any necessary amendments to our planning approach.
At Moores, our experienced Private Clients team can assist with reviewing existing estate plans and advising on flexible testamentary trust structures in light of the proposed reforms. We work with individuals and families to develop practical estate planning strategies that balance tax, asset protection and succession considerations.
This article was originally published by LexisNexis in the Employment Law Bulletin in June 2026.
After years of uncertainty, litigation and regulatory intervention, the treatment of sleepover shifts under the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award) has entered a new phase. The Full Federal Court’s decision in Fair Work Ombudsman v Jats Joint Pty Ltd1 clarified how sleepovers were to be characterised under the SCHADS Award as it was drafted. Shortly afterwards, the Fair Work Commission (FWC) issued its final determination varying the SCHADS Award, with changes commencing from the first full pay period on or after 1 June 2026.
These developments do more than resolve a technical dispute about shift loadings or allowances. They reset assumptions that many organisations have relied on for years when rostering and paying employees who undertake overnight work. They also raise important questions for organisations operating under enterprise agreements that are underpinned by the SCHADS Award, particularly as those agreements approach variation or renewal.
This article explains what has changed, why it matters, and how organisations should respond.
Sleepover shifts are a distinctive feature of work in disability support, residential care, and social and community services. They sit uncomfortably between active working time and periods of inactivity, creating long standing tension between operational practicality, employee protections and funding constraints.
Despite the SCHADS Award containing dedicated provisions dealing with sleepovers, it was not drafted with precision about how sleepovers interact with shift definitions, minimum breaks between shifts and shift loadings. The Fair Work Ombudsman (FWO) adopted an interpretation that treated work performed before and after a sleepover as part of a single continuous shift. Many employers structured rosters and payroll systems around that interpretation, often conservatively, and providers operated in an environment of intense funding pressure that discouraged legal challenge.
The Jats Joint litigation exposed just how fragile those assumptions were. To understand why, it is necessary to step back and be clear about what a “sleepover” actually is under the SCHADS Award.
A sleepover is a specific and carefully defined arrangement under the SCHADS Award. It is not simply any overnight work, nor is it interchangeable with a night shift, a broken shift or a 24-hour care arrangement.
Under the SCHADS Award, a sleepover occurs where an employee is required to remain overnight at the workplace, be available to respond if required, and is not engaged in active duties for the entire period.2
The sleepover period is a continuous eight-hour overnight period during which the employee is permitted to sleep but must remain on site.3
The defining feature of a sleepover is therefore the requirement of overnight presence and availability, rather than continuous active work. While the sleepover forms part of a broader rostered engagement, it is treated as distinct from ordinary working time, and the SCHADS Award draws a clear distinction between the sleepover period itself and any work performed before, after, orduring that period.
Asleepover should not be confused with a night shift, where work is actively performed during night hours, or with a broken shift or extended duty arrangement, which are regulated differently under the SCHADS Award.
Where no work is performed during the sleepover period, the employee is remunerated by way of a specific sleepover allowance prescribed by the SCHADS Award, rather than by payment of ordinary hourly wages.
This pay treatment, and the distinction between a sleepover and active working time, underpin the differing interpretations of how work performed before and after a sleepover should be characterised.
The source of ambiguity arises from how periods of work prior to, and immediately following, a sleepover period are treated. If a sleepover constitutes a break between shifts, then the work on either side is treated as two separate shifts, each independently assessed for penalty rates and overtime. However, if a sleepover is not a break but forms part of a single continuous shift, the hours are considered together, and penalty and overtime rates are calculated on that basis.
To illustrate, consider an employee that works 6 pm to 10 pm, sleeps over, and then works the following morning from 6 am to 10 am. Applying the first interpretation, where the sleepover period is a break, those are two separate four-hour shifts, each attracting their own penalty rate. Alternatively, where the sleepover period is not a break, the employee is treated as having worked a single continuous shift spanning that period, starting at 6 pm and finishing at 10 am the next day. Relevantly, shifts that finish after midnight, or commence before 6 am Monday to Friday, attract a night shift penalty.4
For much of the SCHADS Award’s history, the FWO has taken the position that a sleepover forms part of a single continuous shift for the purposes of applying shift loadings.5 Under this interpretation, work performed on either side of a sleepover was treated as one continuous shift, and where that shift (inclusive of a sleepover) finished after midnight or commenced before 6 am, a night shift loading of 15 percent was payable on all ordinary hours worked.
The first challenge to the FWO’s position came in November 2023 when the Australian Industry Group (AIG) applied to vary the SCHADS Award to expressly clarify that work performed on either side of a sleepover constitutes separate shifts of ordinary hours.6 In its application, the AIG argued that making the variation would provide clarity and certainty to employers in implementing sleepover arrangements without incurring disproportionate shift penalties or requiring the routine performance of significant periods of overtime. In March 2024, Parkerville Children and Youth Care (Parkerville) joined the growing chorus of business groups advocating for change to the SCHADS Award by replicating AIG’s application.7
In July 2024, the Australian Services Union (ASU), Health Services Union (HSU), Australian Workers Union (AWU), United Workers Union (UWU) and Community and Public Sector Union (CPSU) (together, the Unions) made their own application to vary cll 25.4, 25.7 and 28.1 of the SCHADS Award, merging their application with the AIG and Parkerville applications.8
In a joint submission, the ASU and others argued that sleepovers are not breaks because workers are away from their families, struggle to get a restful night’s sleep and are frequently woken up at all hours to support clients in need.9 The Unions also claimed that AIG’s proposal would permit an employer to roster a 24/28- hour shift pattern with as few as eight hours between the commencement of each pattern (eg an employee could be rostered to work eight hours, sleepover, then work another eight hours the next day without penalties).10 Further, it would also be possible to roster as many as 17 consecutive 24/28-hour shift patterns in a 28-day roster period.11
The issue was further complicated when the FWO issued a compliance notice to Jats Joint Pty Ltd (Jats Joint) regarding sleepover-related payments to an employee, Kim Richards.
The compliance notice sought to remedy Jats Joint’s alleged failure to pay Ms Richards night shift loading for shifts worked immediately before and/or after a sleepover between early January 2020 and December 2021, in breach of the Fair Work Act 2009 (Cth).
The FWO contended that Ms Richards was entitled to the 15 percent night shift loading under cl 29.3 of the SCHADS Award on each occasion that she worked on shifts before and/or after a sleepover. In summary, the FWO argued that a sleepover was not a break between shifts and always was, or should be treated as part of, the same shift as any ordinary hours of work either side of the sleepover, for the purpose of determining when the shift ended or began. Jats Joint challenged the FWO’s compliance notice by making an application for review the Federal Court.
The Federal Court handed down its decision in Jats Joint Pty Ltd v Fair Work Ombudsman12 on 8 July 2025. Justice Stellios upheld Jats Joint’s challenge to the compliance notice and in doing so, accepted the construction of the SCHADS Award advanced by Jats Joint that Ms Richards was not entitled to payment of the night shift loading of 15 percent. Stellios J observed:
While the position is not free from doubt, and should be clarified by amendment to the SCHADS Award when the opportunity arises, I accept Jats Joint’s submissions that a sleepover period does not form part of a shift. That is the interpretation that is most cohesive with the SCHADS Award when understood as a whole. …13
Five months after the Federal Court’s decision in Jats Joint Pty Ltd v Fair Work Ombudsman, and while the FWO sought to appeal, the Full Bench of the Commission handed down draft variations to the SCHADS Award in response to submissions made by the relevant parties.14 The Full Bench noted:
It might be thought that, once relevant provisions of a modern award have been construed by a court, their meaning is then clear, and no ambiguity or uncertainty can be said to arise. However, that is not necessarily the case. A provision may be ambiguous even though it is capable of interpretation.. . .“Plainly, his Honour regarded the provisions to be ambiguous and, although compelled to reach a conclusion as to the preferred interpretation, favoured the position being clarified. With respect, we agree that the relevant provisions we have set out are ambiguous and their operation is uncertain.”15
Having regard to the SCHADS Award’s objective, and weighing up the parties’ submissions, the FWC determined that a variation to the SCHADS Award was warranted, including:16
In March 2026, and in opposition to the FWC’s draft variations, the Full Court of the Federal Court, comprising Wigney, Shariff and McDonald JJ, handed down its decision in Fair Work Ombudsman v Jats Joint Pty Ltd, which dismissed the FWO’s appeal against the primary decision in Jats Joint.17 This left employers in a difficult position, with uncertainty as to whether to apply the Jats Joint interpretation or prepare for the incoming award variations, with the risk of substantial back pay exposure depending on the way the law ultimately settled.
Fortunately, that uncertainty was resolved in early April 2026 when the full bench of the FWC handed down its final decision regarding variations to sleepover clauses in the SCHADS Award.18
It is important to distinguish between what the Federal Court decided and what the FWC has now prescribed.
The FWC’s decision formally varies the SCHADS Award with effect from the first full pay period on or after 1 June 2026.19 The full Federal Court’s decision in Fair Work Ombudsman v Jats Joint Pty Ltd20 remains authoritative in interpreting how the SCHADS Award operates until that time. It also informs how historical compliance issues should be assessed and explains why many practices driven by regulatory guidance were not legally required.
The FWC’s determination, by contrast, changes the SCHADS Award prospectively. From the first full pay period in June 2026, employers are no longer construing ambiguous provisions; they are applying a revised and more prescriptive framework under the SCHADS Award.
This distinction matters in practice. Historical exposure and back-pay risk must be assessed against the SCHADS Award as it applied at the relevant time. Prospective compliance must now align with the varied SCHADS Award, even where that approach departs from how a court previously interpreted the text.
For most employers, this will mean the new rules apply from around mid-June 2026. Importantly, the FWC’s approach reflects a deliberate recalibration of the framework governing sleepovers under the SCHADS Award, rather than an endorsement of the Federal Court’s interpretation.
The key changes can be categorised into four key areas:
Firstly, the most important aspect of the FWC’s decision is the clarification that sleepovers do not count as a break under the SCHADS Award. In other words, if an employee works before a sleepover and then works immediately after it, those two periods of work will now be considered part of the same single shift. This represents a departure from how the SCHADS Award wasinterpreted in Fair Work Ombudsman v Jats Joint Pty Ltd, and reflects the FWC’s intention to provide greater structural clarity going forward.
At first glance, if an employee performs periods of work immediately before and immediately after a sleepover period, and the sleepover is not considered a “break” under the SCHADS Award, this could give rise to a contravention of cl 25.4(a). That clause requires that employees be allowed a break of not less than 10 hours between the end of one shift or period of work and the start of another.
However, recognising the potential unintended con- sequences, the FWC amended the draft variation to add a new subclause at the end of cl 25.4, which will read:
Clause 25.4(a) does not prevent an employee from performing work immediately before and immediately after a sleepover period (as provided for in clause 25.7) where the periods of work include ordinary hours which are part of the same shift.21
Before the variation, ordinary hours for a shift were capped at 8 hours,22 or up to 10 hours by agreement.23 The new cl 25.1(c) introduces a further option to address shifts that include a sleepover.
By written agreement, the ordinary hours of a shift that is performed partly before and partly after a sleepover can now be up to 12 hours in total, provided no more than 8 ordinary hours are worked either side of the sleepover. For example, an employee could work 8 hours before a sleepover and 4 hours after, or 6 hours either side, but once they exceed the 12-hour threshold, this will trigger an entitlement to overtime.
Importantly, an employee is entitled to refuse a request to enter into such an agreement. While the SCHADS Award does not yet require that agreement to be in writing, the Full Bench has flagged this requirement may be introduced.24
Clause 28.1(b)(iii) of the SCHADS Award has also been amended so that part-time and casual employees may work up to 12 hours in a shift that includes a sleepover without attracting overtime, consistent with the new cl 25.1(c) framework.25
Under the previous framework there was uncertainty about whether shift penalties applied across the entire shift (inclusive of a sleepover) or whether it was limited to only the active periods of work.
Clause 29.3(d) resolves this by providing that where an employee is rostered to perform work immediately before and after a sleepover period, the portion of work prior to and following the sleepover will be treated separately for the purposes of determining the loading to be paid under cl 29.3.26
In effect, the sleepover does not extend the application of shift penalties across the full span of the engagement. It follows that if the pre-sleepover portion of the shift finishes after 8 pm and before midnight, the 12.5 percent afternoon shift loading applies only to that portion. The post-sleepover work performed during ordinary morning hours will not attract any shift loading as each period is assessed independently under cl 29.3(d). This is likely to be welcomed by employers who were paying the night shift penalty on all hours worked as part of the sleepover shift.
For many organisations, the most immediate impact of the FWC’s determination is operational. Rostering arrangements and payroll systems that were developed over time frequently embed assumptions that were never critically tested.
In light of the imminent commencement of amendments to the SCHADS Award, organisations should consider whether:
In practice, this may require more than minor adjustments to existing rostering and payroll models.
For employers covered by the SCHADS Award, there are a number of key steps you can take now to ensure compliance when the variations take effect in June 2026:
The Full Bench of the Federal Court has indicated that a subsequent stage of proceedings will address the remainder of the Unions’ application, though these are not expected to result in substantive changes beyond those already made.
While the FWO retains one further avenue of appeal from the full Federal Court’s decision in Fair Work Ombudsman v Jats Joint Pty Ltd, a further appeal appears unlikely in the near term given that the relevant provisions will, by that point, have been varied.
Employers should continue to monitor developments and ensure their payroll systems and rostering arrangements are updated ahead of 1 June 2026.