The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with a Disability (Disability Royal Commission) held Public Hearing 13 – Preventing and responding to violence, abuse, neglect and exploitation in disability services (a Case Study) (Public Hearing 13) from 24 to 28 May 2021 and again on 10 September 2021. Public Hearing 13 examined a case study on the experiences of people with a disability residing in accommodation at Sunnyfield Disability Services (Sunnyfield). This was the first hearing examining how providers of disability services prevent and respond to violence, abuse, neglect and exploitation of people with a disability.
On 5 April 2022, the Royal Commission published a Report on Public Hearing 13, and found “Sunnyfield failed to protect residents of the House against violence and abuse and was responsible for significant shortcomings in the services provided to residents”.
This article provides a summary of Public Hearing 13 and what steps Disability Service Providers and other organisations should take to safeguard children and vulnerable people to keep them safe from harm.
On 1 May 2017, Sunnyfield commenced managing a property in Western Sydney, New South Wales, which housed four residents with a disability (the House). Sunnyfield’s operations according to witnesses presented as “chaotic” due to a poor handover with the previous provider and a lack of understanding of the needs of the residents. Concerns were raised for the care of the vulnerable residents almost immediately after Sunnyfield took over the property. These complaints went unanswered and unresolved by Sunnyfield. Regular complaints were made to Sunnyfield, the New South Wales Ombudsman (Ombudsman) who had oversight of disability services prior to the commencement of the NDIS, and the NDIS Quality and Safeguards Commissioner (NDIS Commissioner) between June 2017 and June 2019 raising concerns for professional misconduct, bullying, racism, intimidation, deceit, physical abuse and poor performance of staff roles.
It was not until 25 June 2019, that two Sunnyfield staff were suspended pending an investigation. An independent investigation commenced on 2 July 2019 and substantiated allegations against the staff members of physical and verbal abuse, mismanagement of medication and funding, and breaches of Sunnyfield’s contracts and policies. The independent investigator also raised systemic concerns which included a culture of blame and fear, as well as lack of trust and lack of respect between staff at the House. New South Wales Police investigated the allegations, and charged the workers with multiple counts of common assault and assault occasioning actual bodily harm. All charges were later dismissed, due to lack of evidence.
As part of the Public Hearing, the NDIS Commissioner and the Ombudsman’s actions in relation to the complaints were also scrutinised. The Royal Commission found that the Ombudsman had concerns regarding the employment history of staff prior to their employment with Sunnyfield and did not disclose this information to Sunnyfield when it should have, to ensure the safety of Sunnyfield residents. The Disability Royal Commission also found that the NDIS Commissioner had an obligation to visit the House when concerns were raised, and failed to do so. Sunnyfield also had an obligation to provide the independent investigator’s report to the NDIS Commissioner and failed to do so, arguing client legal privilege over the reports. The Disability Royal Commission found no such client legal privilege exists when a determination needed to be made for the resident’s safety and well-being.
A number of key concerns arose out of Public Hearing 13, including:
There are a number of key learnings from Public Hearing 13 for Disability Service Providers and other organisations working to safeguard children and vulnerable people.
Moores provides a range of safeguarding services for organisations to support them to implement policies, practices and procedures which can mitigate the risk of harm to vulnerable people whilst ensuring that organisations also comply with legislative requirements and regulators. Moores have expertise in harm prevention and mitigation for organisations working with vulnerable people including children, aged care and disability services and works closely with a number of key stakeholders to provide relevant and timely advice to our clients. Moores can provide independent professional investigations to ensure that complaints are properly responded to, and to ensure the safety and wellbeing of children and vulnerable people.
Moores’ safeguarding team provides comprehensive support and can assist with training, developing and implementing policies, processes and procedures to promote safety and reduce risk of harm, ensure regulatory and legislative compliance, and respond to concerns through investigations, crisis management and response.
Please contact us for more detailed and tailored help.
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The Fair Work Act 2009 (Cth) (FW Act) prohibits dismissing an employee because the employee is temporarily absent from work because of a prescribed illness or injury. The regulations go on to provide that a temporary absence of three months or less (in a single period or single day absences over 12 months) is considered a prescribed illness or injury. The FW Act also prohibits an employer discriminating against an employee due to, amongst other attributes, a physical or mental disability (which can include a temporary impairment).
The unfair dismissal framework in the FW Act (applicable to some employees) also requires that an employee is afforded procedural fairness before a decision to dismiss them from employment.
Managing ill and injured employees in the workforce can be challenging. An employer must often balance a number of objectives: complying with obligations under the FW Act, anti-discrimination laws, workers’ compensation laws (if a claim is made) and industrial instruments; empathy for the employee who is unwell; and fulfilling the employer’s operational requirements to keep its organisation running.
The matter is further complicated where an employee seeks to take personal leave during a disciplinary action process (eg. a process to manage unsatisfactory performance or alleged misconduct, including a factual investigation being conducted ahead of misconduct allegations). Employers may be left wondering whether an employee is genuinely unwell and unfit for work, or whether the employee is simply seeking to delay the disciplinary process or action.
There may be some circumstances where an employer can proceed with its disciplinary process but caution is always advised about proceeding too hastily due to risks, including:
Therefore, additional steps are recommended for employers in most cases to mitigate the risks, and position the employer to better defend such a claim. An employee is not immune from having to communicate with their employer while on personal leave as it will be necessary to communicate about employment matters such as taking leave, notifications of changes in the workplace and/or temporary work arrangements. As such, an employee may not be able to refuse to communicate with an employer during personal leave.
An employer is however advised to ensure that approaches to communicate with an employee during personal leave have a reasonable basis and are actioned in a reasonable manner. An employer’s conduct has to comply with its safety obligations under relevant legislation and an employee may have a claim with respect to a ‘workplace injury’ that they allege arises because of the employer’s actions to engage with them while on personal leave.
At a minimum, during a disciplinary process interrupted by personal leave, an employer is recommended to:
The Full Court of the Federal Court held in Khiani v Australian Bureau of Statistics [2011] FCAFC 109, that the restriction on terminating an employee because of a temporary illness or injury does not stand to prevent an employer from dismissing an employee while the employee is absent on personal leave. Where the employee may be dismissed for another valid reason, “it is not to the point that the decision to dismiss happens to be made while the employee is on leave” [26].
This case was an appeal of a decision of the Federal Court, in which the employee had made a General Protections claim after she was dismissed while on sick leave. Prior to the dismissal, the employee had been subject to a performance management plan, and issued a formal warning letter about her unsatisfactory performance. She had also failed to attend meetings with management, which were required by the performance management plan, and the employer subsequently determined that the employee had taken insufficient steps to address her underperformance.
In the Fair Work Commission’s decision in Dana Emery v Cutlers The Law Firm [2015] FWC 52, an employer who dismissed an employee while she was absent for three days due to illness was found to have failed to comply with procedural fairness obligations. The employee was dismissed due to a workplace restructure, which would result in two part-time positions being replaced by one full-time position. The employer did not consider the employee to be a suitable candidate for the full-time position, and did not inform her of his restructure decision until he notified her of her termination.
Although the employee had advised that she had an appointment to see her doctor and would soon provide a date for her return to work, the employer dismissed the employee by telephone while she remained on leave. The Commission found that there was no reasonable basis for failing to wait at least one more day or until such time as the employer could meet with the employee personally to provide her with an opportunity to respond. Further, his failure to engage in consultation with the employee about the redundancy of her role was described as ‘a cruel and callous way to behave’ [37] and was a breach of his obligations under the applicable Award, notwithstanding that she was on leave when the decision was made.
In the Federal Circuit Court case of Boyd v Glenvill Pty Ltd [2021] FCCA 265, the employee took sick leave due to stress and anxiety arising in the course of his employment, which occurred over a matter of months, and was terminated during that period of sick leave. The employer denied allegations that the employee was dismissed because he took sick leave, or because the employee’s absence on sick leave may have impacted the business negatively.
Instead, they claimed that he was dismissed due to performance issues (including a lack of sales in a sales-driven role). However, the employer had failed to communicate any performance concerns to the employee, and subsequently failed to communicate the rationale for the dismissal. Ultimately, the employer was able to demonstrate that the decision to dismiss the employee was made prior to his sick leave and not because of it, although it was made for other prohibited reasons (including that he had raised a complaint about his employment).
While the case was ultimately decided on other grounds, it is an important reminder of the role of clear communication and documentation in effecting a decision to dismiss an employee, in order to demonstrate that the dismissal was for a valid reason and to comply with procedural fairness obligations.
The case law is a helpful reminder of the importance of ensuring a procedurally fair disciplinary process, particularly in light of the additional complexities that arise when an employee is on personal leave.
While it can be harder to provide an employee with a genuine opportunity to respond to concerns where the employee is absent from work on personal leave, it is not impossible. In these circumstances, an employer should carefully consider factors such as:
Carefully considering these factors, and documenting any decisions made, will be key to defending a claim against the employer’s process and decision.
At Moores, our Workplace Relations team is well-equipped to guide employers through tricky situations in the workplace. Get in touch with the Workplace Relations team at Moores if you or your organisation would benefit from our team’s support and advice.
In the case, the members and individual trustees of the SMSF, Mr and Mrs Frigger, were undischarged bankrupts, and therefore a trustee in bankruptcy was seeking to recover their assets. The dispute arose because Mr and Mrs Frigger said that some of the assets claimed by the trustee in bankruptcy were in fact owned by them as trustees of their SMSF and therefore out of reach.
The argument by Mr and Mrs Frigger arose because the Bankruptcy Act provides that assets held in a superannuation fund are not available to the trustee in bankruptcy. If the Friggers could prove the assets were those of the SMSF, they would be ‘off-limits’ to their creditors.
The Trustee in bankruptcy argued that the bank accounts, share portfolios and properties were acquired by Mr and/or Mrs Frigger in their individual names, and not as trustees of their SMSF. In some cases, this was because the asset was acquired by the Friggers prior to the establishment of the SMSF, and in others, because the asset is in one of the their names only.
Superannuation (and in particular the SMSF sector) is heavily regulated, which is unsurprising given the significant wealth held in superannuation funds in Australia. Some of the key compliance rules include:
The assets in question included bank accounts, shares and properties – some of which were registered in Mrs Frigger’s sole name, some in Mr and Mrs Frigger’s joint names and even some owned by their daughter (who was, for a time, a member and trustee of the fund). Apart from the confusion about the name in which assets were registered, the Friggers had used the same bank account for their SMSF and for some business transactions.
Ultimately, the Federal Court judge found that Mr and Mrs Frigger failed to establish that the assets they claimed were held as trustees of the SMSF were genuinely held in that capacity. The Court referred to the Friggers’ lack of evidence as to their intention to hold the assets as part of their SMSF, the timing of the acquisition of the various assets and the inability to trace income through the balance sheets of the SMSF in reaching this decision. That meant those assets became divisible amongst their creditors.
A key obligation of a trustee is to ensure that assets are held separately from its own assets – this case shows that when it is not done correctly, those assets can be vulnerable.
One of the clearest ways to ensure that the assets are separately held and registered is to have a corporate trustee whose sole purpose is to act as the SMSF trustee – that way, the legal ownership is clearly separated from that of the members of the fund.
For expert advice or guidance regarding Estate Planning and self managed superannuation funds, please do not hesitate to contact us.
In a recent case that illustrates the significant consequences for employers and employees alike that arise where an employer fails to take reasonable precautions to prevent sexual harassment in the workplace, the Victorian Civil and Administrative Tribunal (VCAT) has ordered an employer to pay $150,000 to an employee that experienced sexual harassment in the workplace. In a second recent judgment, the Fair Work Commission (FWC) upheld an employer’s decision to dismiss an employee following an investigation that substantiated allegations of sexual harassment. In this article, we explore what these two recent decisions mean for employers.
In Oliver v Bassari (Human Rights) [2022] VCAT 329 (28 March 2022) an employee of a beauty therapy company, Heibech Pty Ltd (trading as “Man Oh Man”), was subjected to sexual harassment and was sexually assaulted by her colleague, Frederico Catalfamo. The sexual harassment took place over the course of the eleven months that the employee, Oliver, worked for the employer, and entailed sexual and suggestive questions and comments as well as unwanted touching. The sexual harassment ultimately culminated in Catalfamo sexually assaulting Oliver whilst she was having her hair washed. Oliver was subsequently diagnosed with PTSD and anxiety and experienced a number of negative symptoms as a result of the harassment and assault.
The Tribunal found that the employer was vicariously liable for the sexual harassment as:
Oliver also argued that the sole director, shareholder and office manager of Man Oh Man, Youm Bassari, ‘assisted, authorised and/or encouraged’ the sexual harassment as Bassari did nothing to prevent the sexual harassment from occurring and continued to roster Oliver and Catafalmo to work together despite knowing of the sexual harassment. The Tribunal found that a person in authority (e.g. a manager) may authorise sexual harassment through mere inaction if:
However, in this case, VCAT found that Bassari’s inaction did not amount to assisting, authorising or encouraging the sexual harassment as Catafalmo did not know that Bassari was aware of the allegations as she never addressed them with him.
The Tribunal awarded general damages in the order of $150,000, noting that the affected employee was still suffering from the effects of the sexual harassment and assault four years after the incidents occurred.
The case of Dunlop v BHP Billiton WAIO Pty Ltd t/a BHP [2022] FWC 790 (11 April 2022) concerned an employee, Dean Dunlop, who was suspended by his employer, BHP Billiton (BHP), immediately following two allegations of sexual harassment that were made against him by two contractors that worked for ESS Support Services, a contractor that provides services to BHP, including cleaning its mine sites. BHP subsequently terminated Dunlop’s employment three weeks later following an independent investigation in which the allegations of sexual harassment were substantiated. One contractor alleged that Dunlop had grabbed her in a “bear hug”, pinned her arms to her side and whispered a sexual comment in her ear. The other contractor alleged that, in a separate incident, Dunlop made a sexual comment to her, squeezed her breast and called her multiple times over the following days. The second contractor resigned from her employment with ESS and said that was because she felt too unsafe to return to work.
Dunlop argued sexual harassment did not occur and that the allegations were vague and malicious, and he was unfairly dismissed. The FWC heard evidence from the two complainants, an independent investigator, the complainants’ supervisor and Dunlop’s supervisor. The FWC found that all the evidence supported the allegations that sexual harassment did in fact occur. In considering the legislative requirements, the FWC found that Dunlop’s dismissal was not ‘harsh, unjust or unreasonable’ as sexual harassment is a valid reason for dismissal as it amounts to serious misconduct (following a recent change to the definition of serious misconduct in the Fair Work Act 2009 (Cth)) , Dunlop was informed of the allegation and was provided with an opportunity to respond but chose not to do so, and that the procedures followed by BHP in effecting the dismissal were appropriate.
Both cases highlight the importance of having appropriate policies and procedures in place which clearly prohibit sexual harassment in the workplace and outline the procedure for managing complaints from employees. They also highlight the importance of making sure that employees are aware of the contents of these policies, taking proactive steps to monitor compliance with the policies, and that allegations are taken seriously and responded to in line with the procedures in place. The FWC found BHP had engaged in correct procedures for managing complaints and had followed their policies and protocols regarding an investigation, which resulted in a fair dismissal. On the other hand, VCAT found that Man Oh Man’s lack of action against allegations and poor policies and procedures resulted in them being vicariously liable for their employee’s conduct.
Both cases also highlight the importance of taking sexual harassment allegations seriously. As a result of Bassari and Man Oh Man’s inaction, VCAT found in favour of the affected employee and awarded her $150,000 in general damages. The Tribunal also confirmed that individuals in positions of authority (e.g. managers) may be held liable for assisting, authorising or encouraging sexual harassment through mere inaction. This is an important lesson for employers who fail to prevent and respond to sexual harassment in the workplace as more cases are going before the court and more employers are being held vicariously liable for the conduct of their employees.
There are a number of things employers can do to ensure they are protected from unfair dismissal and vicarious liability claims:
Moores works with organisations and employers to prevent sexual harassment and discrimination in the workplace and supports employers and organisations to respond appropriately and efficiently to complaints and allegations of sexual harassment and discrimination that are made.
Moores’ Workplace Relations & Child Safety teams can provide a range of comprehensive and specialist support and services to employers and organisations and provide support and advice in relation to disputes, investigations, the implementation of policies and procedures and training in relation to sexual harassment and discrimination.
There is no doubt the High Court rulings earlier this year provided clarity for many about delineating between the employment and independent contractor relationships (ZG Operations & Anor v Jamsek & Ors [2022] HCA 2 and Construction, Forestry, Maritime, Mining and Energy Union & Anor v Personnel Contracting Pty Ltd [2022] HCA 1).
A recent case in the Federal Circuit and Family Court has illustrated how those decisions have practical impact.
In Pruessner v Caelli Constructions Pty Ltd [2022] FedCFamC2G 206, Justice McNab found that a relationship between a construction company and a worker, contracting through a company run by his wife and him, was not that of employer/employee but that of principal and contractor.
Mr Pruessner established that he had provided services to Caelli Constructions for many years, both from 2005 to 2008 and then again from 2012 to 2020.
Mr Pruessner argued that notwithstanding that his company invoiced Caelli for the services (at least since 2012), he was in fact an employee of Caelli. Caelli disputed that, claiming that Mr Pruessner was at all times a contractor to the business.
The Court found in favour of Caelli Construction.
There was no written contract in place and therefore the High Court’s guidance did not have direct application in that regard. However, the Court was able to identify what terms were part of the contract that was effectively in place between the parties, and looked at the ‘post-contractual’ conduct to ascertain those terms (citing case law support to enable review of that post-contractual conduct because there was no written contract).
Key factors guiding the Court’s decision in favour of Caelli included that:
Although the case was decided in a construction context, it has broader application to many organisations, including those obtaining consulting services from independent contractors and other service arrangements.
The better protection for an organisation is to ensure that a written contract is in place to clarify the relationship basis and its terms. Failing that, it may be up to the Courts to determine.
At Moores, our Workplace Relations team is well-equipped to guide employers through their employment arrangements.
The Fair Work Commission (Commission) has led the way on recognising the change needed to respond to domestic and family violence.
On 16 May 2022, the Commission issued its lengthy decision in support of a ‘provisional view’ that the award standard for family and domestic violence leave should be increased to 10 days paid leave.
The provisional view was expressed in the context of the Commission’s four yearly award review and revisited its earlier decision to reject the Australian Council of Trade Union’s push for 10 days paid leave. At that time, five days unpaid leave was provided for as a new entitlement in all awards. The Federal government soon followed by legislating that entitlement in 2018 as part of the ‘National Employment Standards’ (NES) so that all employees (not just award covered employees) would benefit from the entitlement.
The Commission’s provisional view is now the subject of further process steps to develop a model clause (for inclusion in awards) and provide the opportunity for feedback. Once those processes are completed, it should be expected that the Commission will formally vary all awards to include that new standard.
The Federal government will most likely consider changes to the NES required if it adopts the Commission’s lead.
The proposed Occupational Health and Safety Amendment (Psychological Health) Regulations (Vic) is another one to watch.
The regulations, if passed, will come into effect in July 2022. They will, amongst other things, require employers to take steps to mitigate and report on a range of matters related to psychosocial risks and hazards in the workplace. They will also compel employers with more than 50 employees to provide half yearly reports on ‘reportable psychosocial complaints including bullying and sexual harassment’.
That is a significant change that will affect many employers.
The consultation process has closed.
At Moores, our Workplace Relations team is well-equipped to guide employers through tricky situations in the workplace. Get in touch with the team at Moores if you or your organisation requires further information or advice.
The ACT Civil & Administrative Tribunal (ACAT) has determined that a clause in a School Enrolment Contract requiring one terms’ fees in lieu of advance written notice of withdrawal of a student at the end of the year constitutes an unfair contract within the meaning of the Australian Consumer Law (ACL). The Enrolment Contract was found to be a standard form contract, meaning the ACL was relevant.
Senior Member Elspeth Ferguson handed down the decision in the matter of Brindabella Christian Education Ltd v Respondent on 5 May 2022. Interestingly, the notice term could still reasonably be applied to children withdrawn during the course of the school year after resources based on student numbers for that year had been committed.
Clause 25 of the Enrolment Contract, which includes the notice term, is set out in full below:
The Enrolment Contract was found by ACAT to be unfair, as the School could unilaterally vary fees by publishing such variation without prior notice and without giving parents an opportunity to withdraw their child from the School without penalty. Parents that found the changes unacceptable must pay at least one and possibly two term’s fees following the variation, depending on when such variation takes effect. However, as noted above, the notice was less likely to be an unfair contract if a student was withdrawn during the School year, rather than at the end of the term four.
To be unfair for the purposes of section 23(1) of the ACL, a term of a consumer contract must meet all the following criteria under section 24(1):
(a) it would cause a significant imbalance in the parties’ rights and obligations arising under the contract;(b) it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and(c) it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.
ACAT found there was significant imbalance under s24(1)(a) because the notice term, in the context of the Enrolment Contract, has the effect of permitting the School, but not the parents, to vary the terms of the contract; and of permitting the School to alter the upfront price payable under the Enrolment Contract without giving the parent a corresponding right to terminate the Enrolment Contract.
It was not clear from the terms of the Enrolment Contract that enrolment at the School was ongoing. The Senior Member of ACAT found that the School would have sufficient time to plan allocation and teaching resources for the following year when a student was withdrawn at the end of term four and could thus mitigate any loss occasioned by the termination of the Enrolment Contract.
‘Reasonably necessary’ in the context of section 24(1)(b) requires the term to be both reasonable ie ‘fair, proper, or moderate under the circumstances’ and necessary. The notice term was found to operate in the context of a rolling contract which permits the School to unilaterally vary the terms of the Enrolment Contract, including fees, without giving the parents a right to terminate without penalty. As such it was found to be neither reasonable nor necessary.
If the notice term were relied upon the parents would suffer detriment because they would be required to pay school fees for a service that they neither wanted nor received. The extent of detriment suffered by the parents in this case is immaterial.
Moores can advise whether this decision is binding on your school, and review your Enrolment Contract to ensure transparency of the terms of enrolment and how to lessen the impact of this decision on your ability to still require one term’s fees in lieu of notice. The increase in claims relating to periods of remote learning simply underscores the need to review your enrolment terms and conditions to ensure they still achieve key commercial outcomes.
With the Federal Election only a few days away (Saturday 21 May), Australian political parties have been busy campaigning and addressing their key policy platforms and plans. From Liberal’s commitment to the remaining measures in its Omnibus Bill to Labor’s pledge to lift wage rates in light of the latest annual inflation rate, there has been no shortage of industrial relations and workplace related issues both old and new on their agenda. This article unpacks those issues and foreshadows what we can expect to see from the major political parties following election day.
The latest inflation figures released in late April revealed that headline inflation had increased to 5.1% annually in the March quarter. In light of these figures, the federal government was criticised for being complacent about the cost of living in Australia and allowing wage rises to fall significantly behind inflation.
The Labor party responded by announcing that it would support a wage rise in this year’s national minimum wage order that keeps pace with inflation. It is ultimately the Fair Work Commission’s (FWC) responsibility for conducting annual wage reviews and determining national minimum wage rises each year and Labor was criticised for the policy position, viewed by some as an interference with the FWC’s independence. Recent comments from the Prime Minister reflect a more conservative approach to wage growth with some indication that wage growth should be expected in 18 months, mindful of the inflationary impact of significant wage growth in the short term.
The Labor party has also committed to closing the gender pay gap by strengthening the ability and capacity of the FWC to order pay increases for workers in low paid, female dominated industries and legislating so that there is greater transparency around the current gender pay gap.
Similarly, the Greens have also committed to:
Without making similar commitments, the Liberal party has promised to narrow the gender pay gap by strengthening the economy and increasing women’s workforce participation, arguing that the current gender pay gap of 13.8% is significantly lower than the 17.4% inherited from the Labor party.
The Liberal party, the Labor party and the Greens have also unveiled respective plans for supporting women in the workplace.
The Liberal party’s plan involves investing in women’s economic security by providing more flexible and accessible paid parental leave (discussed below) and encouraging women into trade apprenticeships, the manufacturing industry and digitally skilled roles.
The Labor party has vowed to go further to support fair pay and conditions for working women. In particular, if elected, it has promised to legislate an equal remuneration principle to guide the FWC in equal remuneration and work value cases and establish a Pay Equity Panel and Care and Community Sector Panel to assist the FWC in determining those cases.
Finally, the Greens have a plan that entails improving paid parental leave (discussed below), increasing women’s workforce participation by providing free childcare and flexible work arrangements and implementing all of the recommendations in the Australian Human Rights Commission’s Respect@Work report, challenging the federal government on the basis that it has failed to act on a range of recommendations in the report.
The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2021 (commonly referred to as the Omnibus Bill) was passed on 22 March 2021, albeit in a much-reduced form than when it was first introduced. Among other changes, the Omnibus Bill introduced a statutory definition of casual employee and a statutory obligation for employers to offer regular casual employees with 12 months of service conversion to full or part-time employment. (See our related article for more.)
The Liberal party has indicated that it is committed to passing the remaining measures in the Omnibus Bill that were not passed last year.
In summary, those measures include:
The Labor party has not indicated whether it will support the passage of any of the remaining measures in the Omnibus Bill. However, the party has committed to criminalising wage theft at a federal level.
The FWC recently reached a provisional view in the family and domestic violence leave review that there should be an award entitlement to 10 days’ paid family and domestic violence leave. This represents a significant increase from the current entitlement to 5 days’ unpaid leave under modern awards.
The FWC has sought the federal government’s view on whether it would incorporate the proposed entitlement in the National Employment Standards (NES). In response, the federal government has declined to endorse incorporating the proposed entitlement in the NES, preferring instead to leave employers and employees to agree on these entitlements through enterprise agreements and workplace policies.
The Labor party, on the other hand, has committed to ensuring that the proposed entitlement is available to all Australian workers covered by the NES.
The Liberal party has committed to enhancing paid parental leave by allowing the current 20-week entitlement to be fully transferable between carers and raising the eligibility requirement to access the proposed entitlement to household income of $350,000 or less. The Labor party’s plan is to increase total leave from 20 to 26 weeks but has not specified how leave would be shared or transferred between carers. The Greens have also committed to a 26-week entitlement, composed of six weeks for each carer (on a ‘use it or lose it’ basis) and 14 weeks to be shared between carers.
The federal government’s long-awaited Religious Discrimination Bill (Bill) was shelved in February 2022 following a marathon sitting of the House of Representatives and a range of changes that amended the bill from what the federal government had initially proposed. (See our related article for further commentary on the Bill.)
Religious freedom laws were a key policy platform for the Liberal party during the 2019 election, and the party has committed to revisiting the Bill if re-elected.
Though the Labor party has committed to protecting Australians against discrimination on the basis of religious belief and activity, the party has not provided further detail in relation to the Bill and to what extent it would seek to pass the Bill if elected. The party has, however, highlighted that the Bill fails to protect students from discrimination on the basis of their gender and sexuality.
Moores assists many clients to confront and respond to the issues discussed in this article, many of which are ongoing and systemic and will take time and substantive legislative change to address irrespective of the results of the upcoming federal election.
Please get in touch with our workplace relations team for further information on what Moores can do for you.
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Welcome to the first article in our series on Family Provision Claims.
Whilst a person may leave their assets to whomever they want upon their death (known as the ‘freedom of testation’), this freedom is subject to an obligation to provide for certain ‘eligible persons’.
If such eligible persons believe that a loved one’s estate doesn’t provide for them adequately, they may be able to formally challenge the Will and obtain greater provision from the estate.
This is called a “family provision claim” or historically, a “testator’s family maintenance claim”. In Victoria, you may also hear the term “Part IV claim” used, which is a reference to the part of the relevant legislation (the Administration and Probate Act 1958 (Vic)) which deals with these type of claims.
A claim can be made in either the County Court or the Supreme Court of Victoria.
Under Victorian law, a family provision claim can only be made against the assets in the deceased person’s “estate”; that is, assets in their personal name at the date of their death (or assets that subsequently form part of the estate). Accordingly, assets that were owned by the deceased person jointly with another person, or held in a company or family trust, are generally not available to satisfy a claim. Similarly, a superannuation death benefit will only be available to satisfy a claim if it is paid to the estate by the trustee of the relevant super fund.
Where the deceased person died on or after 1 January 2015, the availability to bring a family provision claim is restricted to “eligible persons”. Most commonly, this type of claim is brought by a close family member of the deceased, such as a spouse, partner or child.
Other people who can potentially bring a claim (depending on the specific circumstances) include:
However, if the deceased died before 1 January 2015, a family provision claim can be made by anyone to whom the deceased owed a moral responsibility.
A claim should be made within 6 months from the date of the grant of probate (if the deceased left a will) or letters of administration (if the deceased did not leave a will). In certain circumstances, the Court may also allow a claim to be made after this 6 month period has elapsed, as long as the estate has not yet been distributed.
In order to make a claim, an eligible person will need to establish:
In weighing up the merits of a claim and deciding whether to award any provision to the claimant, the Court must consider the terms of the Will, the reasons as to why the deceased made the Will as they did, and any other evidence about the deceased’s intentions in relation to providing for the claimant.
The Court may also consider a number of other factors, including:
Importantly, the Court is not empowered to simply disregard the Will and provide for what is considered to be a ‘fair’ outcome in the circumstances; the ‘freedom of testation’ remains the starting point when assessing a claim. Further, the amount of any provision made by the Court must not provide for an amount greater than is necessary for the eligible person’s proper maintenance and support.
For these reasons, in order to be successful in a claim, the eligible person must be able to demonstrate a degree of relative financial need.
Typically, the executor of the estate will be the named defendant to a family provision claim. However, in circumstances where the claimant is also the executor, the defendant will be the major beneficiary of the estate.
The defendant needs to defend the claim and seek to uphold the terms of the deceased’s will. However, in doing so, they need to consider compromising the claim where such a settlement would be in the interests of the estate, when regard is had to the merits of the claim and the costs and delay of continuing to defend it.
Whilst the defendant must act in the best interests of the estate, it is often advisable for the beneficiaries of the estate to obtain independent legal advice as to how the claim may impact on their entitlement to the estate, and the steps they can take to assist the defence of the claim.
If you or your client are considering making or defending a family provision claim, or have an entitlement to an estate subject to a claim, it’s important to seek legal advice as soon as possible in order to understand the merits of the claim, how it will impact the beneficiaries and the options available.
Moores is here to help. Over the coming months, we will be releasing a series of articles focussed on family provision claims including the different categories of claimants and addressing some common misconceptions about these claims.
The new Ministerial Order 1359 (MO 1359), which implements the new Child Safe Standards for registered schools in Victoria is to replace Ministerial Order 870.
MO 1359 was published on 10 February 2022, and will come into operation on 1 July 2022, as do the new Child Safe Standards.
Originally published as a suite of articles, our Guide to MO 1359 is designed to assist you in navigating the new regulatory landscape.
Download the guide here.