In our previous article, we highlighted the issues that can arise where a family trust deed has been lost and the importance of retaining a complete copy of the trust deed.
The Court’s view of the process that needs to be followed when a trust deed has been lost has been further considered in two recent New South Wales cases – Application of DEK Technologies Pty Ltd as trustee for DEK Technologies Unit Trust & Ors [2023] NSWSC 544 (“DEK Technologies case”) and BAGI Pty Ltd trading as atf Nick Ristevski Family Trust v Marka Ristevski [2023] NSWSC 567 (“BAGI case”).
These cases offer greater hope to trustees of the Court taking a more pragmatic approach where a deed has been lost.
The case was brought before the New South Wales Supreme Court by the trustees1 of four trusts who sought judicial advice that they were justified in administering the trusts on particular terms, in circumstances where the trust deeds could not be found.
Although the trust deeds had been lost, at the time the trusts were established the accountant (Mr Scopelliti) prepared a detailed letter of advice outlining the establishment of the unit trust with the family trusts as unitholders and setting out various other details of the trusts, such as the discretionary beneficiaries. A corporate diagram was also prepared.
The plaintiffs could not recall receiving a copy of the unit trust deed or signing it and could not recall signing the establishment documents for the respective family trusts.
Mr Scopelliti gave evidence that in establishing trusts for his clients, he always had the trust deeds prepared by ASIS Services Pty Ltd, and that he made no changes to the deeds provided by the company. Further evidence was given by a former employee of ASIS Services Pty Ltd that they had a number of template trust deeds that included all relevant terms and that their order forms contained specific details concerning the trust name, establishment date, settlement sum, applicable law and details of the settlor, trustee and beneficiaries, which was stored on their database.
In making its decision, the Court referred to the case of Vanta Pty Ltd v Mantovani [2023] VSCA 532 and adopted the view that the relevant question to the Court is whether it is satisfied, on the balance of probabilities, that the trust deeds were executed and contained the terms proposed, which may be established by secondary evidence.
In a pleasing result for the plaintiffs, the Court held that the trustees were justified in managing and administering the trusts according to the terms outlined in the letter of Mr Scopelliti, the template deeds and information on the order forms.
In this case, brought before the New South Wales Supreme Court by the trustee of a family trust, an order was sought that the trustee was justified in treating a replacement trust deed as the operative deed for the trust, and to remedy an error in the rectified deed.
The original trust deed for the trust was executed on 1 July 1989 (“the 1989 Deed”) of which the only two parties were the settlor and the trustee. The trustee believed that the original deed was held at a bank branch when it was provided to them as part of loan documentation requirements. However, in 2010 the trustee sought the original from the bank but they could not locate the original or a copy. The trustee made enquiries between 2012 to 2015 as to the whereabouts of the original 1989 Deed, but it could not be located.
In 2015, the trustee sought advice to have the 1989 Deed replaced with a new trust deed, without any knowledge of the terms of the original trust deed. The replacement deed was signed on 12 February 2015 (“the 2015 Deed”) which was described as a “confirmation deed”.
In 2020, an incomplete copy of the 1989 Deed was found at the family home of the trustee. The incomplete copy showed the beneficiaries of the trust created in the 1989 Deed, which were different to the 2015 Deed. The trustee therefore wished to rectify the 2015 Deed to include the beneficiaries included under the 1989 Deed.
The Court held that the 2015 Deed could be rectified, provided it could be established that the parties to the deed had a common intention which continued up to the time of execution. The Court held that there is evidence that the common intention of the 2015 Deed was to reproduce the 1989 Deed and accordingly, the beneficiaries of the 2015 Deed can be amended to reflect the 1989 Deed.
In relation to whether the trustee could rely on the 2015 Deed as the operative deed, the Court held that the original 1989 Deed contained a broad power of alteration, modification or revocation of the trust and accordingly that power was sufficient to authorise the amendments which occurred to the trust via the 2015 deed. Therefore, the Court confirmed that the trustee was justified in acting in accordance with the 2015 Deed.
Although on its face both matters are a win for the trustees, it is worthwhile noting that potential unintended consequences were not specifically addressed by the Court.
In particular, the BAGI case raises the question of a potential duty complication where a confirmation deed is adopted – being the 2015 Deed in the matter. Depending on where the trust assets are held, and in this matter they fell within the New South Wales jurisdiction, the relevant state revenue office may view the confirmation deed as a resettlement, trust acquisition or a declaration of trust (applicable in New South Wales) which would result in duty being applicable on the market value of the dutiable property of the trust.
It is therefore important that, in particular where trusts hold dutiable property, that the trustee, their advisors and accountants know the whereabouts of the original deed, have sighted it and retain accessible copies. Should there be a need for the preparation of a deed of rectification or confirmation for any trust, then it is integral that the terms of the trust are as consistent as possible with the original trust deed.
Please contact us for more information and tailored assistance.
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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.
1 DEK Technologies as trustee for the DEK Technologies Unit Trust, Drini Mulla as trustee for the Mulla Trust, Kerim Tanovic as trustee for the Tanovic Trust, and Wisdomw Consultancy (Vic) Pty Ltd as trustee for the Yim Tang Family Trust.
2 See https://www.moores.com.au/news/lost-trust-deed-implications-for-family-trusts/.
When a member of a superannuation fund dies, their superannuation benefits (known as ‘death benefits’) must be paid out of the fund – this is what is referred to in the superannuation industry as a ‘compulsory cashing event’.
If the member’s superannuation is not paid to a ‘tax dependant’ (being someone eligible to receive the member’s superannuation entitlements tax-free), then there will be some tax to pay. The tax can be up to 15% of the member balance, and up to 30% of any life insurance that the member owns within the fund.
Because of this tax, where a person does not have any tax dependants, a common strategy is to consider withdrawing the superannuation into their personal name prior to their death, provided they meet certain conditions to access their super during their lifetime. This is often referred to as a ‘death bed withdrawal’, as many superannuation members do not want to withdraw their entitlements too early, given the concessional tax treatment usually afforded by holding wealth in the superannuation environment.
But there is some grey area here – what happens when someone has requested a withdrawal of their entitlements, but they pass away before the payment hits their personal bank account?
In February 2023, the Australian Taxation Office (ATO) published a list of factors that it will consider to determine with a payment in this scenario is a ‘death benefit’, meaning it will be subject to tax (if applicable) or a ‘member benefit’, meaning that the payment can come out to the member as non-assessable, non-exempt income i.e. essentially it is tax free (noting that other taxes such as capital gains tax and stamp duty may still apply).
Importantly, one of the key factors that the ATO considers is whether the trustee of the fund had knowledge of the member’s death prior to making payment of the superannuation out of the fund, which does not appear to have been considered as a relevant factor in the ATO’s previously published private binding rulings.
In the case of a self managed superannuation fund (SMSF), unless one of very few exemptions apply, the member must be a trustee, or director of trustee company, of the fund, and on their death, their legal personal representative (being the executor of their Will or the administrator of their estate) will take their place in the controlling role. As such, there are very few circumstances where the trustee of the fund will not be aware of the member’s death, prior to making the payment pursuant to a request made by a member during their lifetime – perhaps only circumstances where an independent legal personal representative, such as a professional advisor or professional trustee company is appointed.
Following the ATO’s publication of the new factors for consideration, a private binding ruling has been published which sought to clarify whether payment from an SMSF initiated by a request during the member’s lifetime, but paid after their death, was a ‘member benefit’ or ‘death benefit’. The ruling concluded that the payment was a death benefit.
The ATO’s decision in this ruling largely turned on the SMSF trustee’s knowledge of the member’s death prior to making payment and stated that “it cannot be said that the trustee made the payments with the exemption that the member would be alive to receive it”.
Given this updated stance taken by the ATO in considering payments in these circumstances, it is difficult to see many opportunities that SMSF members will have to withdraw their super as non-assessable, non-exempt income, when doing so in the days immediately prior to their death, particularly in circumstances where assets will need to be sold or liquidated. Instead, longer-term planning may be required if a member has a serious health condition and consideration is given to the income tax benefits of retaining superannuation within the fund, versus the death benefits tax that would be payable if the funds are not withdrawn.
It is crucial that all advisors involved in assisting SMSF members are clear on the new ATO factors and how they are being adopted by the ATO through publications of its private binding rulings. Beyond this, all advisors in this area need to be fully across the governing rules of the relevant SMSF to efficiently take client instructions and implement withdrawals, particularly when the request is time critical.
For expert advice or guidance regarding Estate Planning and self managed superannuation funds, please do not hesitate to contact us.
Moores has ranked as a ‘First Tier’ Law Firm for Victoria in both the ‘Wills & Estates Litigation‘ and ‘Wills, Estates & Succession Planning‘ categories for the seventh year running.
In addition, Jennifer Dixon, Lachlan McKenzie, Krista Fitzgerald and James Dimond have all featured as Leading Lawyers and Max Ezerins as Rising Star in the latest Doyle’s Guide. Recognised by their peers and referrers for their expertise in Wills & Estates Litigation and/or Wills, Estates and Succession Planning.
Our expert team is experienced in assisting families with complex Estate 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.
We know term three means schools start thinking about next year’s enrolments and many schools have already set their budget and approved the 2024 fees. For the 2024 school year, there will be changes to the Australian Consumer Law which may cause you to update the documents which constitute your Enrolment Agreement with families. We take a look into these changes, scheduled to come into effect on 10 November 2023, for the perspective of independent schools. Here’s what to know:
A term in your enrolment agreement may be unfair if it:
Whether a contract term is ‘unfair’ depends on the particular circumstances of that contract and ultimately can only be determined by a Court. There is a recent decision from the ACT Civil and Administrative Tribunal about an Enrolment Agreement: Brindabella. We wrote about this here.
Brindabella found:
The use and application of, or reliance on, unfair contract terms is prohibited. Previously, unfair contract terms could be deemed void and unenforceable by the Court. Now that unfair contract terms will be prohibited, the Court can impose financial penalties for breaches of this prohibition. This change is a stronger protection for consumers.
For the Australian Consumer Law to apply, and the possibility of an unfair contract term to be relevant, a contract must be considered a “standard form contract”. The changes are expanding the definition of “standard form contract”, and therefore the application of the Australian Consumer Law.
More information from the Australian Competition and Consumer Commission is here.
In the current economic climate, and with many schools increasing fees in response to the payroll tax, there is a commonly felt “pinch” in the industry and among parents. This increases the risk that parents may (among other things):
In July 2022, we recorded a webinar which you can watch for free to get you started on any updates that may be needed, both in response to Brindabella, and these amendments to the law.
Another risk is that the Australian Competition and Consumer Commission (ACCC) may prioritise enforcement of these new laws, and proactively take legal action against organisations who are in breach of the Australian Consumer Law.
Enrolment Agreements can be complicated. You are providing a service to the students you are educating, but you are contracting with parents. You are entering into an agreement for Prep and seeking to enforce that agreement years later. We can help update or redraft these contractual documents in a manner that reduces the risk of any breaches of the Australian Consumer law, but also to give you strong contractual rights to collect fees critical to ongoing operations. We also work in disputes when there are termination or withdrawal or enrolments, or other disputes with parents.
Please contact us for more detailed and tailored help.
1Competition and Consumer Act 2010, Sch 1 “Australian Consumer Law”, s 24(1).
The Minimum Practice Standards: Specialist and Community Support Services Responding to Child Sexual Abuse (Standards) were launched on Wednesday 6 September 2023 under the National Strategy to Prevent and Respond to Child Sexual Abuse 2021-2030.
The Standards embed the three core values of being victim and survivor centered, trauma-informed, and culturally safe, across the six standards.
The Standards apply to specialist and community support services responding to child sexual abuse, including:
The Standards are not intended to apply to:
However, all organisations and services will benefit from drawing from the Standards to improve their responses to child sexual abuse.
Helpfully, under each standard are ‘standard indicators’ which organisations can draw from to implement each standard within their own practices and services.
Our Safeguarding team can assist your organisation to draw on the Standards to strengthen your organisation’s practices when responding to and preventing child sexual abuse. Our team of experts can support your entire organisation to comply with the Standards, from providing guidance to your Board, through to policy development and delivering staff training. Contact Skye Rose or Cecelia Irvine-So for more information about how we can support your organisation to take this incredibly important step to providing a safe environment for all children.
We know that discrimination negatively impacts on the ability of students with a disability to participate and maximise their potential in the school environment.
In our experience, schools work hard to provide a broad range of reasonable adjustments to support students with disabilities. Schools are generally familiar with the requirements under state and federal anti-discrimination laws that students with a disability have access to education on the same basis as their peers.
What schools may be less familiar with is the vulnerability of students with a disability to child abuse or risk of harm. This vulnerability is well documented. The Royal Commission into Institutional Responses to Child Sexual Abuse heard evidence that children with a disability can face additional barriers to disclosure of child abuse or harm. Students with a disability are also more likely to be subjected to restraint or seclusion and are more likely to be bullied. The importance of protecting the safety, welfare and best interests of children with a disability is reflected in the National Principles for Child Safe Organisations, which includes a key principle that equity is upheld, and diverse needs respected in policy and practice. Ministerial Order 1359, which implements the Child Safe Standards for Schools in Victoria, reinforces this principle by legally requiring schools to pay particular attention to the needs of students with disabilities.
So what does this all mean and what actions can schools take to ensure child safety for students with a disability?
Below are just a few tips for schools to ensure child safety for students with a disability and comply with their legal obligations:
Our Child Safety team can help you to develop a best practice Child Safety Policy and Procedure and Child Safety Code of Conduct. We can also run some of the leading child safety training in Australia for both staff and for older students. If a child safety issue arises, we can support you in your response and investigation. Contact to us to hear more about these services.
The September school holidays are around the corner, and summer holidays will be here before we know it. With holidays can come students going to parties, drinking, taking “compromising” photos and spending many more hours than usual on social media. As part of our work for National Child Protection Week (3 to 9 September 2023), we’ve reflected on the key risks to young people heading into school holidays and the extent of the school’s duty of care in that holiday period.
It is the duty of schools and teachers to take reasonable steps to reduce the risk of reasonably foreseeable harm occurring.
The extent of the duty of care has steadily been increasing in recent years, both through legislative tools (Ministerial Order 1359) and case law. We’ve previously explained the expanding “school environment” and decision of PCB v Geelong College [2021] VSC 633. The key takeaway from this case was that schools can be responsible for the acts of third parties, who are volunteers, or members of community groups, when the school facilitates the introduction or connection with students, and risks are reasonably foreseeable but not addressed.
Discharging the duty of care means understanding what reasonably foreseeable risks students are facing. Over school holidays, we have seen risks of:
Schools cannot, and are not expected, to prevent any harm occurring. Instead, the duty is to take reasonable steps to mitigate the risk of these harms occurring. Schools may well have a duty of care to students even on term break, particularly where behaviour involves another student from the school. Once the school is informed of any issues, it needs to act and take reasonable steps to investigate. Whilst general reminders are insufficient to discharge the duty of care with respect to known incidents, a reasonable step towards discharging the duty of care will often be education. With the reduced level of supervision and oversight over school holidays, providing students with information about their rights, responsibilities and how to seek help and support can prevent harm occurring, and/or escalating. It is a requirement under the Ministerial Order 1359 that schools:
Schools should use end of term assemblies and communications to reiterate:
We offer training for school staff about the duty of care, online safety and how to respond to identified risks of harm to students. We also offer information sessions and seminars for students to informed students about their rights and responsibilities, both in terms of the affirmative consent model and being a digital citizen to students as part of our Safeguarding and Child Safety work.
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.
1eSafety, Digital Lives of Aussie teens (2021) page 5. You can download the full report here: https://www.esafety.gov.au/research/digital-lives-aussie-teens
2 eSafety, Digital Lives of Aussie teens (2021) page 11. You can download the full report here: https://www.esafety.gov.au/research/digital-lives-aussie-teens
If you are a charity or for-purpose organisation, you may have been following news reports in the last month (August 2023) about a privacy breach affecting “thousands of donors to Australian charities”. This article looks into an emerging trend of third-party data breaches – data breaches by contractors or service providers – where the charity or victim organisation obtaining the services has the public-facing brand name which makes it into news reports. Then we give some recommendations for what you can do about it.
A third-party data breach occurs when a malicious or criminal actor compromises a supplier, service provider or contractor to gain access to sensitive information or systems at the victim organisation’s customers, clients or business partners. For example:
Third-party data breaches are increasing because of the increased uptake of contracted automation and efficiencies, the imperative for not-for-profits to optimise their support and contact databases and increased criminal activity via hacking. Many not-for-profit organisations may not know, or take responsibility, for where their data goes when working with other organisations. Often, they simply trust that the third party has adequate systems in place. Further, charities, schools and other for-purpose organisations may have many different service providers and contractors with whom different information is being shared. This means it is difficult to know where your data is.
Knowing where your data is was the principal recommendation of Victorian Privacy and Data Protection Commissioner, Rachel Dixon, during Privacy Awareness Week in May 2023.
“Know what data you hold, and where it is.”
In more technical terms, this is referred to as data mapping, or visualising your organisation’s data assets. Data mapping sets you up to take action to protect that data. It will also prepare your organisation to respond to pending amendments to the Privacy Act 1988 (Cth).
Another recommendation to mitigate the risks of third-party data breaches is to include privacy requirements in your contracts with these service providers. Your contracts should:
Incorporating privacy-by-design into your information systems can help reduce the risk of data breaches, by implementing systemic protections to avoid the circumstances that lead to a breach even arising. Privacy-by-design is the idea of building privacy protections into processes to make good privacy practices a part of normal, everyday practice – making them the “default setting”.
In this context, this would be systemic protocols or restrictions of the sharing of information with third parties, such as a restriction on the downloading and exporting of client, donor or student data so only certain staff can do this, or the data must be shared in a specific way that has been considered and approved by the Privacy Officer.
We can help you with data mapping, contracting with service providers and redesigning your information systems with privacy-by-design in mind. If you have unfortunately been affected by the data breach currently in the media, we can support you in your response and risk mitigation. Contact us to hear more about these services and our perennially popular privacy and data breach training.
Planning for a loved one with a disability is challenging. From 1 July 2023, further stamp duty and land tax exemptions regarding the primary residence of a person with a disability have been introduced by The State Taxation Acts Amendment Act 2023 (Vic).
SDTs can hold assets on behalf of an eligible person with a disability while exempting those assets (up to a cap) from any pension means testing – these have been a useful planning option for some time. You can find further information regarding SDTs in our previous article series.
Previously, there has been a stamp duty exemption available for a transfer of property to a SDT up to the value of $500,000 – with duty payable to the extent the property exceeds that value. New Section 38A of the Duties Act 2000 (Vic) now provides that:
The additional requirements are that:
Additionally, the Capital Gains Tax (CGT) exemption in Section 118.85 of the Income Tax Assessment Act 1997 (Cth) remains applicable and is uncapped as to value.
The transfer of a home directly to an eligible person with a disability may also be exempt from stamp duty up to the value of $1,500,000. This exemption is similar to the SDT exemption outlined above, except that it allows the disabled person to own the home directly, rather than it being held on their behalf via a SDT.
In addition to the requirements outlined above, the transferee must have, prior to the transfer, an assessment from Services Australia or the Department of Veterans’ Affairs that confirms that they would be eligible to be the beneficiary of a SDT.
This exemption is not available if there will be joint owners who are not both eligible persons with a disability.
The potential benefit of this option is it allows people to take advantage of the duty concession without the trouble of creating a SDT, which can have associated administrative burden and cost. However, it means that the property is then under the direct control of the person with a disability – and consequently available for them to sell, transfer or otherwise dispose of as they wish (and form part of their estate upon their death). So, if they are not a person who should reasonably be managing their own assets, then this option would not be appropriate.
The CGT implications of a transfer would need to be considered and the specific exemption available for a transfer to a SDT does not appear to have been updated to be consistent with this duty exemption.
A primary residence is exempt from means testing regardless of whether it is held in a SDT or personally, so direct ownership will not in itself impact pension eligibility – although the value of other assets exempted from means testing will change subject to whether the disabled person is a home owner.
A home owned by an immediate family member that is used as the primary residence of an eligible person with a disability is now exempt from land tax under Section 54(1)(c) of the Land Tax Act 2005 (Vic).
The requirements are that:
This provision should provide relief where a residence is held for the use of a disabled family member. With appropriate estate planning, such residence could potentially be passed to a SDT (or other form of protective trust) via Will on the death of the property owner – a scenario which likewise has applicable stamp duty and CGT exemptions and could therefore be cost effective.
Providing an appropriate residence for a person with a disability is often a key aspect of estate planning. There are now further cost effective options as to the ownership of their primary residence, but care needs to be taken in assessing the appropriate structure.
For expert advice or guidance regarding Estate Planning and Special Disability Trusts, please do not hesitate to contact us.
Conducting investigations in relation to employee conduct always requires careful consideration and compliance with requirements of procedural fairness. However, when the conduct being investigated involves children, this raises several additional complexities which must be considered by employers.
The case of Gulliver v Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane [2023] FCA 823 (Gulliver) highlights the need for a sensitive approach to these types of allegations, balanced with compliance with any processes set out in an enterprise agreement. This case resulted in an employer being required to pay over $50,000 in penalties as a result of failure to comply with a direction from the Fair Work Commission (FWC), in accordance with its obligations under the applicable enterprise agreement. While this case drives home the need for employers to properly consider requests for further information in accordance with relevant industrial instruments, it also highlights the complex child safety and privacy obligations that must be carefully considered, which vary between jurisdictions.
The applicant was a teacher employed at a school managed by the respondent, who traded as Brisbane Catholic Education, for over 15 years. The employment relationship between the teacher and Brisbane Catholic Education was governed by the Catholic Employing Authorities Single Enterprise Collective Agreement — Diocesan Schools of Queensland 2019–2023 Agreement (Enterprise Agreement). The Enterprise Agreement was a workplace instrument and an Enterprise Agreement for the purposes of the Fair Work Act 2009 (Cth) (FWA).
By letter dated 7 February 2023, the teacher was advised by Brisbane Catholic Education that an investigation had been commenced in relation to the teacher’s conduct in the course of her employment. The alleged conduct involved the teacher tugging the earlobes of two students when demonstrating the appropriate sleeper earrings to be worn in accordance with the school’s policy. In further correspondence from Brisbane Catholic Education, the teacher was informed that the allegations had been substantiated.
The teacher subsequently sought details of the evidence being relied upon in the investigation, however, was only provided with select, paraphrased information in relation to the allegations being investigated. The teacher then applied to the FWC seeking a range of remedies, including an injunction preventing Brisbane Catholic Education from terminating her employment until completion of the dispute resolution procedures set out in the Enterprise Agreement. Notably, the Enterprise Agreement contained status quo provisions which stated:
2.4.8 Whilst all of the above procedure is being followed, normal work shall continue except in the case of a genuine safety issue.
2.4.9 The status quo existing before the emergence of the grievance or dispute is to continue whilst the above procedure is being followed.
The FWC, in its reasons found that the Enterprise Agreement’s guidelines surrounding complaints against employees did not “compel” Brisbane Catholic Education to provide the teacher with the material sought. However, the FWC recommended in the particular circumstances of this case, that “the sensible course is for [Brisbane Catholic Education] to provide to the [teacher] to the full extent that is permissible, any material that will be put before the decision maker before a final decision is made”.
Brisbane Catholic Education failed to provide any further details in relation to the conduct, and subsequently terminated the teacher on the basis of the alleged conduct on 31 May 2023.
The teacher therefore claimed that Brisbane Catholic Education contravened s 50 of the FWA by contravening the status quo maintenance provisions contained in her Enterprise Agreement.
The Court held that there was a contravention of s 50 of the FWA on the basis of the contravention of the Enterprise Agreement requiring the status quo to be upheld during the dispute resolution process set out in the Enterprise Agreement.
The Court found that the teacher was “left in a position of not knowing, prior to her dismissal, whether or not [Brisbane Catholic Education] would act on the recommendation” made by the FWC.
“Had [Brisbane Catholic Education] chosen to act on the recommendation by communication to her, even if only to the extent of stating, “You already have, by correspondence of particular dates, the following material and this is the only material which will be placed before the decision-maker”, she would then have had the choice of whether or not to accept that this was in fulfilment of the recommendation or, had she chosen to want more, to press for an arbitrated outcome.”
Instead, the Court found that by failing to do so, Brisbane Catholic Education, by the termination the teacher’s employment without providing any indication of its position in relation to the recommendation, was to interrupt the status quo.
Consequently, the Court was satisfied that the contravention had been made out, being a violation of a status quo required by clause 2.4.9 of the Enterprise Agreement.
As a result of this contravention and having found liability, the Court awarded $28,832.76 compensation for economic loss and a further $25,000 penalty for the breach of s 50 of the FWA.
We advise clients on employment and safeguarding investigations across Australia and can provide assistance on the best way to navigate these complex issues, consistent with relevant laws and industrial instruments. With our expertise in both workplace relations and child safety, Moores are well-placed to assist with managing misconduct investigations that overlap with reportable conduct in relation to children. Please contact Skye Rose for further advice or information.