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.
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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.
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.
No one likes a zombie and changes to the Fair Work Act 2009 (Cth) aim to rid them once and for all.
If your organisation or company has an older enterprise agreement that it has not replaced or formally terminated (through the Fair Work Commission), then you may need to think about your ‘zombie’ which may cease to exist come 7 December 2023.
The term ‘zombie agreement’ was more colloquially used prior to the first set of significant workplace reforms introduced by the Federal Government to describe older enterprise agreements. Specifically, those made before the Fair Work Act 2009 (Cth) began operating in 2009.
Enterprise agreements are usually renegotiated and replaced every 3 to 5 years given that the maximum ‘life’ of the agreement under the legislation is 4 years. However, if an agreement, even a very old one made 15 or 20 years ago, is not replaced by another Fair Work Commission approved enterprise agreement, or terminated by the Fair Work Commission, it still operates. That can create some complexity and in some cases, a disadvantage for employees where legislative and other standards have changed but the workforce are not entitled to the benefit of the changes because of the preservation of these older agreements.
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) addresses this curious feature of older agreements. From 7 December 2023, ‘zombie’ agreements, that is, agreements made prior to 1 July 2009, will cease to operate through the legislative mechanism, even if another agreement is not in place or employees have not agreed to terminate the agreement.
The Fair Work Commission has the power to extend the life of the ‘zombie’ on application from a party to the agreement. That process involves making submissions and providing evidence to the Commission about why the agreement should be extended.
Importantly, after this date, assuming no extension has been granted, the relevant modern award which would otherwise cover the workforce will automatically replace the zombie agreement. Compliance with an award is a statutory obligation and a breach of that obligation can expose an employer to a Court prosecution, regulator investigation and/or penalties of up to $93,900 for a single breach.
If your organisation has a ‘zombie’ lurking, then the steps to consider in preparation of the change in December 2023 include:
The legislative changes do enable a party to seek to extend the life of the zombie agreement. The extension can be for no more than four years.
The legislation provides that the FWC must extend the default period if it is satisfied that:
In Suncoast Scaffold Pty Ltd 2009 [2023] FWCFC 105 (Suncoast), the Full Bench considered whether to extend the default period of the collective agreement-based transitional instrument (zombie agreement) to 31 March 2027. This required assessment of the particular criteria which states an extension must be granted if:
The Full Bench provided detailed guidance on how the requirement in that section differs from the well-known ‘BOOT’ test. The Full Bench stated (emphasis added):
“… The requirement for the better off overall criterion in subitem 9(b) to be assessed by reference to the award covered employees ‘viewed as a group’ appears to allow for the possibility that the criterion may be satisfied, notwithstanding that some individual employees are not better off overall than under the relevant award, as long as there is a discernible advantage for the employees considered as a collective. Further, there only needs to be satisfaction as to the ‘likelihood’ of such a discernible collective advantage; that is, it only needs to be probable rather than certain. Taking these matters together, it is apparent that the better off overall criterion is less stringent that the BOOT in s 193 of the FW Act.”
The Full Bench concluded it would not be reasonable in the circumstances to extend the default period for the agreement given that:
Our Workplace Relations team can assist you to review your existing industrial instrument(s) and develop a pathway forward before the December deadline, including considering whether to make an extension application.
The COVID-19 pandemic forced many employers to think about traditional and new ways of working, including how hours of work are performed and the flexibility that more and more employees are coming to expect from their employer. The post-pandemic working world has seen an increase in many employers being willing to facilitate flexible working arrangements.
However, flexible work arrangements aren’t new. The right to request a ‘flexible work arrangement’ has been part of the National Employment Standards in the Fair Work Act 2009 (Cth) (FW Act). Under that standard, some employees (such as parents, workers with a disability and pregnant workers) are eligible to request flexible work arrangements. Those arrangements can include changes to start and finish times, part time work, job sharing and working from home. Section 65 of the FW Act sets out the requirements that must be complied with when making and responding to flexible work arrangements (see our article: Constraints for employers when balancing flexible work). Recent changes have seen further enhancement of this important standard as part of the FW Act.
While flexible work arrangements offer considerable benefits to both employers and employees, the arrangements can sometimes blur the boundaries between employees’ personal and working lives, leading to ‘hidden overtime’.[1]
There is often a tricky balance for employers and employees to strike where the job demands of a position require some reasonable additional hours to be worked but where a flexible work arrangement is in place which defines work hours more clearly. When is a reasonable expectation not so reasonable or even more significantly, unlawful?
Under the National Employment Standards, employees are entitled to refuse to work additional hours if they are unreasonable.[2] Whether additional hours are reasonable requires a consideration of the following factors:
Many employment contracts include a term stating that the employee may need to work additional hours as required to fulfil the requirements of the role. For ‘salaried’ workers (those paid on an annualised basis), the clause may even state that the employee ‘agrees’ that their salary adequately compensates them for any additional reasonable hours worked.
However, depending on the circumstances, relying on a contractual term may not be sufficient. The expectation of reasonable additional hours is not always lawful. For example, in 2022, the Federal Court of Australia held that it was unreasonable for a knife hand at a meat wholesaler to work an additional 12 hours per week.[4] While a contractual term is one positive step that employers can take to indicate an employee agrees to working overtime, employers are also required to assess what is ‘reasonable’ by engaging with each of the elements in section 62(3).
Additionally, employees who are covered by an award or enterprise agreement may be entitled to receive overtime pay for additional hours worked. Employers are advised to therefore monitor overtime worked by award covered employees, even where they are paid on an annualised basis, to ensure they are remunerated at or above their minimum award entitlements for the hours worked.
Working additional hours can also increase occupational health and safety risks. In most Australian jurisdictions, ‘persons conducting a business or undertaking’ (PCBU) have an obligation to ensure, as far as is reasonably practicable, that employees (and other persons) are not exposed to risks to psychological health and safety arising from work being performed for the PCBU.
In the context of flexible working arrangements, employers may need to be vigilant of the practical effect of flexible work arrangements and to continually monitor hours of work to ensure that ‘flexibility’ isn’t leading to safety risks because of the way the hours of work are performed or how many hours are worked. A failure to adequately address safety risks may expose an employer to investigation or prosecution by the safety regulator, increased absence due to ill health caused by unreasonable work hours and demands and/or claims for compensation due to a workplace ‘injury’.
Employers can take positive steps to manage requests for flexible work arrangements, including:
Our Workplace Relations team can provide you with practical advice regarding flexible work arrangements and reasonable additional hours and strategies to strike the right balance in your workplace. We can also assist you with designing your flexible working policy to ensure that you meet your legal obligations and maximise the benefits that flow from flexible work arrangements.
[1]https://www.oecd.org/coronavirus/policy-responses/productivity-gains-from-teleworking-in-the-post-covid-19-era-a5d52e99/ (accessed 14 July 2023).
[2] Fair Work Act 2009 (Cth), s 62(2).
[3] Fair Work Act 2009 (Cth), s 62(3).
[4] Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512.