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

Planning for a loved one

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

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

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

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

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

Centrelink – Pension Assets Test from 1 July 2020

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

Situation	Homeowner	Non-homeowner
Single	$268,000	$482,500
A couple, combined	$401,500	$616,000

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

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

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

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

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

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

Centrelink – Income Test from 1 July 2020

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

Situation	Up to $178 per fortnight	Over $178 per fortnight
Single with no children	Full Pension	DSP reduces by 50 cents for each dollar over $178

Situation	Combined income up to $316 per fortnight	Combined income over $316 per fortnight
A couple living together or apart due to ill health	Full Pension	DSP reduces by 50 cents for each dollar over $316

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

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

How we can help

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

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

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

Key Updates

• The priority COVID-19 vaccination program will commence in late February followed by community vaccinations from May 2021. The roll out will be in phases with the top priority being quarantine and border workers, priority groups of frontline healthcare workers (as agreed with State and territory governments), aged care and disability care staff, and aged care and disability care residents. The summary of the current roll-out strategy is available here. (Note that under 18s will only be vaccinated if medical advice indicates that it is safe to do so.)

• The COVID-19 vaccine will be free for all Medicare-eligible individuals.

• So far, the Federal, State and Territory Governments have indicated that COVID vaccinations will not be compulsory, but they will strongly encourage people to be vaccinated. 

• The Federal Government has stated that it does not intend to add the COVID-19 vaccine to the “No Job No Play” policy. The “No Jab No Play” policy is a Federal policy that withholds certain benefits and rebates from parents whose children have not received key vaccinations. It also imposes penalties on childcare centres that admit unvaccinated children.

• In 2020, the Victorian State Government passed the Health Services Amendment (Mandatory Vaccination of Healthcare Workers) Act 2020 (Vic) which allows the Secretary of the Department of Health to issue directions to the Ambulance Service, public and private hospitals, day procedure centres and mobile health services to require persons employed or engaged at the establishment to be vaccinated or to prove immunity against a specified disease. The legislation says that the Secretary’s directions do not constitute discrimination on the basis of political belief or activity or religious belief or activity under Victorian equal opportunity laws. 
  
  When introducing this legislation, the Victorian Government justified this measure on health and safety grounds as part of its statement of compatibility with the Charter of Human Rights and Responsibilities, noting that:
  
  
  • vaccines are highly effective and safe,
  • healthcare workers are at particular risk of being infected with communicable diseases and transmitting those preventable diseases,
  • the Secretary’s direction under this legislation does not mandate that people will be vaccinated without consent. A refusal to be vaccinated will have consequences on the worker’s employment.

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

An Occupational Health & Safety (OH&S) Question

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

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

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

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

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

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

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

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

No law against encouraging employees to get a vaccine

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

I want to mandate vaccinations. What should I do?

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

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

How we can help

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

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

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

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

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

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

Register:

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

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

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

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

The High Court found that:

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

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

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

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

How we can help

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

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

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

Listen to SO1E06 with Rena Ou Yang:

Listen to SO1E04 with Skye Rose:

2020 was one of the most turbulent years for employers and employees in recent memory, and now is a great time to review your workplace relations strategy for 2021.

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

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

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

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

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

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

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

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

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

2. Equal Employment Opportunity Compliance

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

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

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

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

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

3. Rise of the Side Hustle

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

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

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

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

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

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

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

4. Casual Employment

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

• awarded Mr Rossato, an employee engaged on an ostensible casual basis, the paid leave entitlements of a permanent employee; and

• rejected the employer’s proposition that a casual loading should be set off against the outstanding leave entitlements.

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

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

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

• an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and

• the person accepts the offer of that basis; and

• the person is an employee as a result of that acceptance”.

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

5. Wage theft and criminalising underpayments

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

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

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

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

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

How we can help

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

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

On 30 October 2020, the Government published the Issues Paper and Terms of Reference (Issues Paper) for its review of the Privacy Act 1988 (Cth) (the Privacy Act).

The review builds on the Government’s announcement in March 2019 of reforms to increase the maximum civil penalties under the Privacy Act and develop a binding privacy code to apply to social media platforms and other online platforms that trade in personal information.

Large scale reforms also will likely mean that, for the first time since the Privacy Act was introduced in 1988, small and micro organisations, including charities, churches, schools and early childhood services which have a turnover of less than $3M will be required to comply.

This arguably represents a significant imposition on a sector which has already seen a drop in income in 2020, even as demand for services, particularly welfare and mental health, has boomed. It is likely to continue to place pressure on smaller organisations to merge to gain economies and scale and be positioned to attract funding. This is not without impact on sector diversity and jobs. Other important mooted changes include:

• An updated definition of ‘personal information’ to include technical data and online identifiers;
• An individual right to erasure of personal information; and
• Strengthening of individuals’ rights to privacy by equipping them with a direct right to enforce privacy obligations under the Privacy Act and inclusion of a statutory tort for ‘invasion of privacy’.

If implemented, these changes would require organisations to reconsider how they define personal information and necessitate technological change in order to implement and operationalise the reforms. We detail what steps your organisation may need to take to respond to these amendments.

What matters is the Privacy Act Review considering?

Removal of the small business exemption

Currently, organisations with a turnover of less than $3 million do not need to comply with the Privacy Act. The Government is considering the appropriateness of this threshold and considering its removal. This change would dramatically increase the number of organisations that need to comply with the Privacy Act.

Definition of personal information

In order to keep up with technological advancement, the Australian Competition and Consumer Commission recommended in its inquiry into digital platforms that the definition of personal information under the Privacy Act should include technical data such as IP addresses, location data, device identifiers and any other online identifiers. This change would require an organisation to adapt its privacy processes and procedures to ensure this data is being protected in the same way as other personal information that is collects, uses and discloses.

The right to erasure

Under current law, organisations must delete data once it is no longer necessary. An individual right to erasure of data would remove this burden on organisations and create a right for individuals to request erasure of their data. Subject to some exceptions, this right would not:

• override existing obligations to retain personal information for legal reasons;
• overshadow public interest reasons for retaining information (such as retaining information in the interests of national security); or
• negatively affect freedom of expression and the free flow of information.

Giving individuals more control over their personal information, this right would enable them to make a direct request to an organisation for erasure of their personal information. They would no longer need to request a declaration from the Office of the Australian Information Commissioner (OAIC) to have their personal information deleted.

In response to this recommendation, you may like to consider whether your current organisational data retention practices would enable you to swiftly respond to an individual’s request for deletion of their personal information.

Stronger Privacy Protection

The review is currently considering whether a direct right of action should be created for individuals to enforce privacy obligations, or a statutory tort of privacy should be created.

A direct right of action to enforce privacy obligations

Currently, there is no right under the Privacy Act for individuals to seek compensation through the courts for interference with their privacy. Instead, a privacy complaint must be lodged with the OAIC, and once the OAIC has made a determination, a complainant may then apply to the Federal Court or the Federal Circuit Court to enforce that determination. A direct right of action would enable individuals to bring actions or class actions against organisations to seek compensatory damages as well as aggravated and exemplary damages for breach of privacy.

The Issues Paper states that this direct right of action would be confined to serious rather than trivial breaches of the Privacy Act and a requirement would be imposed on complainants to take genuine steps to resolve their matter (by, for example, attending conciliation) before filing a complaint in court.

Statutory tort of privacy

Instead of a direct cause of action, the Government is also considering a tort for invasion of privacy, which would respond to breaches of privacy. However, the Issues Paper does note that the need for a tort of privacy may be negated by recent changes to criminal law that address serious invasions of privacy, such as image-based abuse. The Issues Paper seems to favour a direct right of action.

Next steps

We expect further announcements by the Government next year, with a second issues paper due for release in early 2021. In the interim, if you believe your organisation may be affected by these changes, you should consider whether:

• your data collection and retention practices comply with the current requirements of the Privacy Act; and
• your organisation would be in a position to adapt to the proposed changes.

Furthermore, given the prevalence of online attacks and data breaches brought about by the pandemic, it is more important than ever that organisations comply with Privacy Act requirements. You are therefore encouraged to ensure:

• your privacy policies and procedures are up-to-date and compliant;
• you are collecting and retaining data and personal information safely and securely; and
• you act swiftly in response to known or suspected instances of data breaches or privacy interference.

How we can help

If you would like further information about the proposed changes to the Privacy Act, or assistance with ensuring your organisation has up to-to-date and compliant privacy practices and procedures, please do not hesitate to contact us.

On 27 November 2020, the Federal Government announced plans to introduce sanctions for charities that fail to join the National Redress Scheme (Scheme) for victims of institutional child sexual abuse.

These plans involve introducing a new Australian Charities and Not-for profits Commission (ACNC) Governance Standard (proposed standard). The proposed standard is intended to promote the desired result of full participation in the Scheme.

The Scheme

The Scheme’s objectives include holding institutions accountable for institutional child sexual abuse. A key component of this involves participating institutions providing redress to individuals who experienced child sexual abuse in connection with those institutions. In order to meet this objective, institutions have been encouraged to join the Scheme following its commencement on 1 July 2018.

However, some institutions have still not joined or signified their intent to join the Scheme. By announcing plans to introduce sanctions for charities that fail to join, the Federal Government is taking a firm stance towards charities which have thus far avoided accountability under the Scheme.

Proposed Changes

The Federal Government’s plans can be summarised as follows.

• Introducing a new ACNC Governance Standard: The Federal Government plans to introduce a new ACNC Governance Standard requiring registered charities to take all reasonable steps to become a participating non-government institution in the Scheme if a claim has been, or was likely to be, made against them. This includes charities named in the Royal Commission as well as charities that are notified by an individual that they intend to seek redress.
• Amending the ACNC Act: The Federal Government also plans to amend the definition of ‘basic religious charity’ under s 205-35 of the Australian Charities and Not for-profits Commission Act 2012 (Cth) (ACNC Act) to provide that a religious institution that has been named in a redress application but refuses to join the Scheme will not be entitled to be a ‘basic religious institution’. This will mean that the religious institution is then required to comply with not only the proposed Governance Standard but all of the existing Governance Standards unless and until it joins the Scheme.

Potential consequences

Under the new sanctions, registered charities which fail to fulfil their obligation to join, or take reasonable steps to join, the Scheme will be subject to the ACNC’s suite of existing compliance powers, including revocation of charity registration.

In addition to ACNC compliance action, registered charities which fail to join or signify their intent to join the Scheme already risk having their name published on the Scheme website in accordance with Scheme legislation. As well as providing transparency for individuals who have applied or are considering applying to the Scheme, this places public pressure on charities to join.

Coverage

Although there are currently over 58,000 charities, very few charities are likely to be affected by the proposed standard. The ACNC Commissioner noted that only ‘a very small number’ of Australian charities are likely to be affected by the proposed changes’ .

This narrow application (and the prescriptive nature of the standard) makes the proposed standard an unusual addition to the current Governance Standards (which generally have broad application and are principle-based rather than prescriptive). This could be ameliorated by reframing the proposed standard as a principle applicable to all charities while still achieving the Federal Government’s goal of encouraging charities to join the Scheme.

Specifically, the proposed standard could be reframed to require charities to ‘protect vulnerable persons’ (with an explanatory statement confirming that failure to take reasonable steps to join the Scheme was a breach of the standard). This would:

• be consistent with the current Governance Standards;
• align with the ACNC’s compliance focus of protecting vulnerable individuals;
• ensure charities’ obligations within Australia are consistent with their obligations outside Australia – the External Conduct Standards already require charities to take reasonable steps to protect vulnerable individuals overseas, while no corresponding obligation applies within Australia; and
• give the ACNC powers to intervene in all situations where vulnerable individuals are not appropriately protected – not only for failure to join the Scheme, but in other situations where charities place vulnerable individuals at risk.

Treasury is seeking submissions on the draft legislation introducing the proposed Governance Standard until 8 January 2021.

How we can help

Charities that have been named in the Royal Commission, in an application to the Scheme or in information provided to the Scheme should seek urgent advice on the process to join the Scheme.

Otherwise, charities should always ensure that they are aware of and complying with the Governance Standards, particularly in relation to managing historical claims and the protection of vulnerable individuals. In particular, charities are encouraged to:

• review their child safety documentation and ensure that it is up-to-date and compliant with current legislation;
• review and upgrade their policies and procedures in relation to historical claims as necessary;
• ensure that they carry out their activities in a manner which is consistent with their charitable purpose; and
• maintain good governance policies and practices which accord with the ACNC’s Governance Standards.

For more information or guidance regarding the new sanctions for charities or any of the above, please do not hesitate to contact us.

Further to Moores’ recent article (here) detailing extensions to the JobKeeper Scheme (among other Fair Work Act reforms), the ATO has relaxed a series of deadlines that are relevant to an employer’s eligibility to receive JobKeeper payments in 2021.

As a reminder, the second JobKeeper payment extension period will commence from Monday 4 January 2021, covering JobKeeper fortnights up to Sunday 28 March 2021. For this period:

• Employers that are eligible for the second JobKeeper extension will need to complete a new decline in turnover test; and
• The fortnightly JobKeeper payment rates will decrease from $1,200 to $1,000 (tier 1 employees), and $750 to $650 (tier 2 employees) respectively.

From 4 January 2021 until 28 March 2021, the decline in turnover test will be satisfied if current GST turnover for the quarter ending 31 December 2020 has declined by the specified shortfall percentage (15%, 30% or 50%, depending on the nature and size of the organisation) in comparison to GST turnover for the quarter ending 31 December 2019.

If you are otherwise new to the JobKeeper scheme, your business can still enrol to participate in the remaining fortnights.

In light of the busy Christmas/New Year period (and catering for increased leave entitlements accessed during this period), the ATO has announced it will give businesses more time to meet their JobKeeper obligations.

A summary of important deadlines are summarised below:

• 4 January 2021 – Wage Condition Due
  • For JobKeeper fortnight 20 (21 December 2020 to 3 January 2021), the ATO will allow eligible employers until 4 January 2020 to satisfy the wage condition for eligible employees.
    
• 28 January 2021 – Business Monthly Declarations Due
  • Eligible employers can complete their business monthly declaration from 4 January 2021, to be reimbursed for payments made to eligible employees between 23 November 2020 and 3 January 2021.
    
• 31 January 2021 – Further Wage Condition Due (Fortnights 21 & 22)
  • For JobKeeper fortnights 21 and 22 (starting 4 January 2021 and 18 January 2021), eligible employers will have until 31 January 2021 to meet the wage conditions for their eligible employees.

More information about the key dates for the JobKeeper scheme (and extensions) can be found here.

How we can help

Moores is continuing to support many employers navigating the complex requirements of the JobKeeper Scheme and JobKeeper eligibility. If you’d like to understand your rights, responsibilities and options in light of the JobKeeper extension, please do not hesitate to contact us.

Recent high profile cases tell a cautionary tale to employers and employees about public comment and expressing personal views in the course of employment.

Moores’ CEO and Practice Leader, Tessa van Duyn, discusses the increasing use and prevalence of social media, and how employers are taking steps to preserve and protect their reputation through control and monitoring of employees’ private activities online.

Read Tessa’s article published in the Law Institute Journal here or click on the following link for the full publication (p. 44).

For more information or guidance on what is reasonable and lawful monitoring in relation to employee activities online, please do not hesitate to contact us.