The High Court has handed down a major decision on the obligations of employers to find redeployment options within its organisation for employees who are being made redundant.

In Helensburgh Coal Pty Ltd v Bartley & Ors¹ the High Court confirmed that, when deciding whether a dismissal is a “genuine redundancy” under the Fair Work Act 2009 (Cth) (Act), the Fair Work Commission (Commission) may inquire broadly into whether an employer could reasonably have redeployed an employee within its enterprise — including by insourcing work done by contractors or by restructuring to create a role. That decision increases the evidentiary and procedural expectations on employers when making redundancy decisions and provides a compelling case for employers to update their redundancies processes.

Background

Helensburgh Coal operated the Metropolitan Mine and, during the COVID-19 downturn, scaled back operations. In 2020, it dismissed about 90 employees and continued to use contractors or labour hire workers to perform work formerly undertaken by some of those employees. Twenty-two dismissed employees (Employees) applied to the Commission for remedies for unfair dismissal, arguing their terminations were not “genuine redundancies” because it would have been reasonable to redeploy them to work being done by independent contractors.

Ultimately the Commission decided that it would have been reasonable in all circumstances to redeploy the Employees. Helensburgh Coal appealed the decision to the Federal Court of Australia (Federal Court) on the basis that the Commission applied the wrong test in assessing whether it would have been reasonable in all of the circumstances for the Employees to be redeployed. The Federal Court dismissed the appeal.

Helensburgh Coal appealed the Federal Court decision to the High Court of Australia (High Court). The key argument Helensburgh Coal contended was that the Commission was not permitted to inquire as to whether an employer could have made changes to its enterprise to create or make available a position for an employee who would otherwise be made redundant. Helensburgh Coal argued that the Commission is required to take the enterprise as it is ‘found’ on the date of dismissal, not as the Commission may have reorganised it.

The High Court unanimously dismissed the employer’s appeal, confirming the Commission may consider whether the enterprise could have been changed to enable redeployment — including insourcing work being done by contractors or creating a new role.

The High Court’s judgment clarifies how the “genuine redundancy” test in the Act should be applied in practice. Relevant practical points from the decision are:

• Enterprise is to be understood broadly. The employer’s “enterprise” means the business, activity or undertaking and is not confined to the way the employer currently uses its workforce. The Commission can examine the enterprise in the round when assessing redeployment.
• Redeployment does not require a pre-existing vacant role. The inquiry is whether there was work or a demand for work within the employer’s enterprise that the employee could have performed — even if that work was at the time being performed by contractors or casuals.
• Reasonableness is an objective, contextual question. The question is whether redeployment would have been reasonable at the time of dismissal, assessed objectively having regard to the nature of the enterprise, the employee’s attributes, timing, costs and other commercial considerations. Employer and employee perspectives matter but do not alone decide the issue.
• The Commission may look at whether reasonable changes to the enterprise could have created redeployment opportunities. That includes considering the nature of the workforce, contractual arrangements with providers, whether roles could be insourced, the practicalities and costs of retraining, and the employer’s operational and strategic choices.

Justice Edelman and Justice Steward offered further remarks on the facts and on how the reasonableness inquiry may apply in particular circumstances; those factual observations provide useful guidance but do not expand the binding scope of the High Court’s unanimous ruling on the Commission’s jurisdiction to make the inquiry.

Justice Edelman commented that there were jobs imminently available to which the Employees could have been redeployed. The evidence showed that the relevant contractors could have been replaced quickly, if not immediately, and the contract with the organisation that supplied the contractors was due to expire shortly after the Employees were dismissed.

By contract, Justice Steward commented that ‘redeployment of a person at the expense of another person’s position would be a very grave step to take and would be unlikely to be a reasonable outcome’. He further noted that this could be applied to independent contractors or casual labourers in addition to employees.

What this means for employers — the practical implications

The decision highlights that redundancy is an outcome of last resort where redeployment within the enterprise would have been reasonable. Employers should have evidence to show that they conducted a comprehensive and objective assessment of whether redeployment was reasonably available before concluding a dismissal was a genuine redundancy.

Practically, employers should consider taking the following steps before implementing redundancies:

• Map who does what. Maintain a simple register showing which tasks are performed by employees, contractors and labour hire, with contract end dates and key terms. Focus first on roles likely to be affected by restructures or cost reductions.
  
• Use a standard redeployment-assessment form. Using a consistent, signed form helps demonstrate that redeployment options were considered objectively and contemporaneously. Consider documenting:
  • the tasks in scope (including those performed by contractors);
  • the employee’s relevant skills, qualifications and availability;
  • the training or licence requirements and likely time/cost involved;
  • contractual restraints such as exclusivity;
  • commercial consequences of insourcing; and
  • the decision and reasons by the relevant manager/HR.
    
• Review contractor/supplier contracts before major workforce changes. Check for exclusivity or other clauses that would prevent insourcing, and record the commercial cost and notice required to replace or reduce contractors. Factor this into the reasonableness assessment.
  
• Document contemporaneously. Keep dated records of meetings, analyses and alternatives considered. Casual conversations are weak evidence; contemporaneous written records are far stronger.
  
• Consult properly with affected employees. Provide sufficient information on the business reasons, redeployment options considered (including why contractor roles were or were not suitable) and give employees a genuine opportunity to respond or to propose alternatives. Ensure you comply with any consultation obligations under awards or agreements.
  
• Train managers and HR. Ensure decision-makers understand the broadened redeployment inquiry and follow the updated protocol; emphasise mapping, documentation and early legal/IR involvement in borderline cases.
  
• Seek early legal advice on borderline matters. Where proposed redundancies overlap substantially with contractor work or where insourcing decisions would be material, involve legal or IR advisors before finalising dismissals.

These steps reduce legal risk and will be critical evidence if a decision is challenged.

Practical pitfalls to avoid

• Don’t treat contractor work as automatically off limits. Where contractors perform enterprise work, redeployment may still be reasonable.
• Don’t rely on informal memory. Casual conversations are weak evidence; contemporaneous written records are far stronger.
• Don’t confuse commercial preference with reasonableness. It may sometimes be commercially reasonable to continue using contractors — but you must show that judgment, not simply assert it.

How can we help?

If your organisation is considering a restructure, our workplace relations team can help you stress-test your processes, strengthen decision-making, navigate your obligations with confidence, and balance compliance with a people-centred approach that reduces dispute risk and reinforces trust.

Contact us

Please contact us for more detailed and tailored help.

Subscribe to our email updates and receive our articles directly in your inbox.

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_{Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.}

1. [2025] HCA 29 ↩︎

“Even where information sharing is legally permitted or required, there may be reluctance to share. Concerns about privacy, confidentiality and defamation, and confusion about the application of complex and inconsistent laws, can create anxiety and inhibit information sharing. Institutional culture, poor leadership and weak or unclear governance arrangements may also inhibit information sharing and, as a result, undermine the safety of children.”¹

– 2017 Royal Commission into Institutional Responses to Child Sexual Abuse

The recent arrest of a Victorian childcare worker charged with more than 70 child sex offences has shaken the early childhood education sector to its core. It is a harrowing reminder that our systems and safeguards still leave children vulnerable to abuse.

Even more disturbing are reports that the childcare worker worked in 23 childcare centres within an 8-year period and was dismissed from a previous centre over the handling of an incident report months before gaining employment at the service where the alleged assaults occurred.² His termination with that employer also came days after a parent at the centre raised concerns about the childcare workers and asked that he not be allowed near her daughter. So how did this happen? Were there confidentiality agreements preventing the childcare centre from warning future childcare centres about this worker?

For those in the sector who investigate misconduct as part of their role, the same patterns repeat. Known perpetrators quietly exit one workplace and reappear in another. Often, their past conduct has been obscured by confidentiality clauses in separation agreements.

A System Built to Keep Things Quiet

For employers managing complex staff issues, a separation agreement, containing strict confidentiality obligations, can feel like a tidy solution. It is a way to avoid costly legal disputes.

But these confidentiality clauses don’t just protect the parties. They can actively harm the next employer, and worse, the next child, service user or colleague.

There is a strong body of evidence, both in Australia and overseas, that many organisations use (and often over-use) confidentiality clauses to protect their reputation. The use of strict confidentiality clauses in separation agreements enables the perpetrators of abuse to move between organisations and jurisdictions undetected, where the harm can continue. And yet, the practice continues, not from malice, but often from misplaced caution.

Systemic Failure, Repeated

In our work at Moores, we’ve supported organisations through crisis after crisis involving misconduct, including child abuse, grooming, and inappropriate conduct. In one matter, a worker dismissed for child safety code of conduct breaches and professional boundary violations with children had already been the subject of similar concerns at a previous employer. But because the prior allegations had been dealt with quietly under a separation agreement, there were no warning signs during the screening and recruitment process. The employee was permitted to resign from the former employer, and the employee and former employer agreed to keep all matters surrounding the employee’s resignation strictly confidential.

The overuse of confidentiality clauses in separation agreements isn’t unique to childcare or to child safety. The Australian Human Rights Commission’s 2020 Respect@Work Sexual Harassment National Inquiry Report³ commented that the use of non-disclosure agreements to resolve sexual harassment matters often serves to silence victims, conceal workplace misconduct, protect the reputation of the harasser and the organisation and reinforce a culture of silence. These are not just HR failures. They are systemic weaknesses that undermine accountability for harm and the ability of employers to properly screen prospective employees during the recruitment process.

Why the Status Quo Must Change

Verifying a Working with Children Check is not enough. In reality, most perpetrators of abuse don’t have a criminal record when they begin abusing children or sexually harassing people in the workplace.

Creating a culture of safety demands more than compliance – it requires a cultural shift.

That means:

• Declining mutual confidentiality clauses in separation agreements where an employee departs due to concerns about child safety or sexual harassment. This helps to ensure that an organisation can openly and honestly share concerns with regulators and future prospective employers conducting reference checks. Unilateral confidentiality obligations that only apply to the respondent/exiting employee may be appropriate.

• Asking more probing questions during recruitment and reference checks before a new employee commences in their role. This could involve:
  • asking about gaps in employment history, and for references from the candidate’s recent employers (if they are not referees);
  • scenario based questions about acceptable and unacceptable conduct towards children and vulnerable people;
  • asking an employee to sign a statutory declaration confirming they have not been the subject of any report, complaint, disciplinary action or allegations of inappropriate or reportable conduct (including inappropriate conduct towards a colleague, service user or child); and
  • provide written acknowledgment that they have read and agree to comply with your organisation’s Child Safety Policy & Procedure and child safety code of conduct (if you have one).

• Creating child-safe cultures where staff feel empowered to report concerns early by:
  • regularly communicating to staff expectations about acceptable and unacceptable conduct; and
  • providing new and existing employees with information and training at induction to support their understanding of child safety, child abuse and/or risk of harm, and their reporting obligations, with annual refresher training.

• Treating risk as a shared responsibility, not something to offload to the next organisation.

How Moores Can Help

At Moores, we work alongside peak bodies and associations, schools, early childhood education and care organisations, religious organisations, and other child-focused organisations on the full spectrum of child safety and safeguarding issues. We don’t just react to misconduct; we help organisations prevent it.

We support our clients by:

• advising on child safety obligations across all Australian jurisdictions, the application of relevant Child Safe Standards and what is required to meet or exceed them, working with children check requirements and reporting obligations, and best practice in surveillance, screening and recruitment;
• designing and delivering child safety training for staff, leaders and boards;
• designing child safety frameworks for state and large national organisations and peak bodies that are aligned with best practice, including policies, codes of conduct and state-based reporting procedures;
• developing practical child safety tools, including incident and risk management frameworks, guidelines and age-appropriate information for children;
• managing child safety investigations; and
• conducting audits for compliance with child safety obligations.

We approach this work with deep respect for the trust placed in child-focused organisations. We know the pressure to get it right and what it takes to do so.

Organisations that work with children are gatekeepers of safety. The most powerful thing a leader can do is commit to transparency over convenience, accountability over risk avoidance, and courage over quiet exits.

If your organisation is reviewing its policies, dealing with a complex safeguarding issue, or simply want to ensure your approach is safe and legally sound, we’re here to help.

Contact us

If you would like to discuss how we can support your organisation, our team is here to help. Please contact Skye Rose, Tal Shmerling or Abbey Dalton if you would like further support.

View our dedicated page on the Childcare and Early Education Reforms and subscribe to receive updates directly in your inbox.

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_{Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.}

1. Royal Commission into Institutional Responses to Child Sexual Abuse (2017), Final Report, Volume 8, p 12 ↩︎
2. Accused child sex offender Joshua Dale Brown sacked from former Melbourne childcare employer – ABC News ↩︎
3. AHRC (Australian Human Rights Commission) (2020) Respect@Work: Sexual Harassment National Inquiry Report(opens in a new window), AHRC, Australian Government. ↩︎

Yesterday, the Victorian government released the Rapid Child Safety Review (Review) in response to recent allegations of child abuse in childcare centres. The Review provided for 22 recommendations which have a broad focus on supporting all relevant stakeholders within the early childhood sector including childcare providers, parents, childcare workers and regulators. The Victorian government has committed to adopting all 22 recommendations arising from the Review.

Changes to the Regulators

The Victorian Government response to the Review (the Response) commits to establishing a new, ‘independent, nation-leading regulator’ called the Early Childhood Education and Care Regulator (ECEC) (R13). It appears that the ECEC will take the place of Quality Assessment and Regulation Division (QARD).

Concurrently, the Victorian Response commits to strengthening the Social Services Regulator and consolidating the administration of the WWCC Scheme, Reportable Conduct Scheme, and Child Safe Standards education and guidance (currently with Working with Children Check Victoria and CCYP respectively) under its wing to strengthen the ‘safety net’.

New Mechanisms of Monitoring and Enforcement

The Response commits to legislating a Victorian Early Childhood Worker Register in October 2025 and establishing the scheme within six months. The ECEC will take a leading role in conducting site visits (including regular, unannounced site visits at least once every twelve months).

At a national level, the Response calls for sweeping reform:

• An ability for regulators to deregister individuals based on an assessment of their suitability for ECEC settings;
• A national approach to WWCC laws and national data base;
• A material increase to maximum penalty amounts under the National Law;
• Improvement on ECEC training and placements (and strong ASQA powers to address poor-quality registered training organizations);
• Mandatory child safe training for all people involved in ECECC under National Law;
• A national trial of CCTV in early childhood education and care settings.

Strengthening of Existing Victorian Schemes

The reforms aim to improve capabilities to assess and address risks in conjunction with other regulatory schemes (e.g., social services, disability and aged care) so that assessors have evidence-based tools, training and resources to increase the rigor of screening the sector.

Under the proposed reforms:

• applicants will be required to complete child safety training and testing before being granted a WWCC; and
• the WWCC Scheme will be resourced to undertake more manual assessments and interventions and given access to increased amounts of intelligence for both new and renewing applications. Among other things, decision makers assessing WWCC clearance will be able to take into consideration unsubstantiated conduct allegations, and reviews of WWCC refusals will no longer be able to go through VCAT but will be subject to a dedicated review process.

Obligations on organisations

The Response commits to legislative change which will require organisations to demonstrate they have an active understanding of each worker’s history, including ‘tracking movement’ across workplaces and sectors.

Provisions for Consumers

The reforms have also considered the consumer. The Response commits to improvements to the rating certificates for services, increased publication of compliance and enforcement activity, and increased education, advice, and guidance for parents to assist with identifying signs and raising concerns.

As new legislation is introduced over the coming months, many details remain to be worked through. The Victorian Government also faces limitations in its ability to compel reform at the Commonwealth level. While corporate providers have drawn public criticism, it appears that all providers — including not-for-profits — will be required to move quickly to implement change.

Moores is committed to supporting the sector through this transition, with our team of leading experts in education and safeguarding. We will continue to provide updates and host information sessions as developments unfold.

How we can help

At Moores, our Safeguarding and Child Safety teams work alongside organisations to ensure their child safety frameworks are robust, compliant, and reflective of best practice. Our experienced team supports clients to:

• Review and update Child Safety Policies and Codes of Conduct;
• Respond effectively to allegations of child abuse;
• Navigate investigations and compliance obligations; and
• Develop practical, preventative strategies that promote a culture of child safety.

We also provide tailored training for staff, boards, and child safety officers to ensure all individuals understand their role in protecting children.

Contact us

If you would like to discuss how we can support your organisation, our education and safeguarding teams are here to help. Please contact Cecelia Irvine-So or Skye Rose if you would like further support. 

View our dedicated page on the Childcare and Early Education Reforms and subscribe to receive updates directly in your inbox.

We are in a housing crisis in Victoria and community housing providers are struggling to make much-needed social housing projects stack up. This article explores whether the forthcoming developer bond scheme and the current domestic building insurance (DBI) requirements, that are intended to protect owners of residential premises, should exempt social housing projects to help get more social housing delivered for less money.

What is the developer bond scheme?

From 1 July 2026 developers of residential apartment buildings of more than three storeys will be required to pay a financial bond to be held by the Victorian Building Authority/Building and Plumbing Commission. The bond must be in the amount of 2% of the total build costs, is to be in place for two years following the issuing of the development’s occupancy permit and can be claimed by the owners corporation where they need to pay for the cost of rectifying defective building works identified in the final report prepared by the building assessor. The introduction of the developer bond scheme seeks to protect owners of apartments in buildings of more than three storeys which are currently exempt from the requirement of DBI (discussed in this article below).

Developers have started grappling with the implications of the cost of developer bonds on the feasibility of their projects and how they can commence future projects with significant money tied up for years in developer bonds. But community housing providers should note that, as the developer bond scheme currently stands, they will be required to put up developer bonds on their apartment projects which have more than three storeys. This is because they may fall within the definition of developer in the Building Legislation Amendment (Buyer Protections) Act 2025 (Vic) (“the owner of the land on which the residential apartment building is affixed”) and because section 137ZR of the Act requires any person who applies for an occupancy permit for a residential apartment building to have put up the developer bond.

Is the developer bond scheme sound policy for social and affordable housing?

The purpose of the developer bond scheme, as set out in the second reading is laudable, being to “introduce new financial protections for consumers through a developer bond scheme for apartments with a rise in storeys of more than three”. But it makes no sense to extend the developer bond scheme to social housing projects, noting:

• On community housing developments the community housing provider is the developer and not a consumer purchasing apartments under off-the-plan contracts.  

• The developer bond scheme would require community housing providers to tie up a significant amount of their money in developer bonds to reimburse themselves for the cost of rectifying defects in their own apartments if defects are discovered. That is very different to owners of non-social housing apartments getting comfort that defect rectification can be funded by the third party developer.

• Community housing providers typically are required to retain ownership of the apartments they develop well beyond two years after the issuance of the occupancy permit. So if and when there is a subsequent consumer purchasing an apartment in that development the developer bond will have long been returned.  

• Community housing providers seldom register a plan of subdivision for their apartment developments or put in place an owners corporation. As the owners corporation is currently the only one that may make a claim on a developer bond, on social housing projects the developer bond may be held without anyone being legally able to make a claim on it.

• With the help of their external project managers and architects, not to mention the registered building surveyor and independent certifiers required by Homes Victoria on larger projects, community housing providers are far better placed than most owners to help control the quality of the building work delivered and therefore minimise the likelihood of the defects that the developer bond is intended to cover.

We have yet to see the regulations that will detail the specifics of the operation of the developer bond scheme. But given that community housing providers are not consumers of off-the-plan contracts that require protection from developers, and that the developer bond scheme as currently drafting would see community housing providers tying up significant amounts of their own money to pay themselves if at all, community housing providers should start lobbying the Victorian government now to get their social housing projects exempted from the developer bond scheme in the regulations.

What is DBI?

DBI is mandatory for builders carrying out domestic building work worth more than $16,000 (soon to be $20,000). The primary exemption to this requirement is developments with more than three storeys (excluding basements). Social housing projects carried out by community housing providers will therefore need DBI unless they are multi-storey developments. DBI is intended to provide some protection to homeowners (including subsequent owners) in the event their building project cannot be completed or if defective works cannot be rectified because the builder has died, disappeared, become insolvent or failed to comply with a Tribunal or Court Order. But community housing providers should note that:

• Being considered developers for the purposes of DBI (unless delivering less than three homes on a site), their DBI “may” exclude claims for non-completion of work. That is, their DBI will not cover them for non-completion of work if their builder goes insolvent.  

• While DBI covers $300,000 in claims for any one home in a project:
  • non-structural defects are only covered for 2 years after completion of the work;
  • even though structural defects are covered for 6 years, the threshold of what is considered a structural defect is high; and
  • the insurer may nominate the builder who must rectify the defects.

Is mandatory DBI sound policy for social housing?

We think the requirement for DBI for domestic building work generally makes sense. But we query whether it is an unnecessary additional handbrake on the delivery of social housing developments for the following reasons:

• The value of DBI premiums is a concern. In this challenging construction market every dollar counts, particularly for not-for-profit community housing providers.

• DBI is very difficult to obtain for a builder taking on a larger project than what it typically builds. On bigger projects mandatory DBI is pushing community housing providers to a limited pool of bigger builders. While higher tiered builders are great at what they do, they have higher preliminaries and costs. By effectively forcing the use of bigger builders on larger projects, the requirement for DBI is materially driving up the cost of larger social housing projects.  

• DBI sensibly protects subsequent building owners. Community housing providers are, however, typically long-term holders of their dwellings. Subsequent owners would therefore not be prejudiced if all social housing projects were exempt from DBI.

• Most community housing providers are today pretty experienced and sophisticated property developers. They are more than capable of properly vetting their builders to minimise the risk of insolvency and they have sufficient leverage in the market to require terms in their building contracts which help protect them in the event of insolvency, e.g. parent company guarantees and direct warranties from key subcontractors. This is just as well as, as noted above, they are not covered for non-completion of work if their builder goes insolvent.

• As noted above, community housing providers are also far better placed than most building owners to help control the quality of the building work delivered. Community housing providers can therefore minimise the likelihood of the defects that DBI may cover.

• Domestic building works undertaken (as opposed to funded) by Homes Victoria are exempt from the requirement for DBI and that in New South Wales social housing developments are exempt from the equivalent scheme.

Conclusion

No one is likely to argue against trying to provide safeguards for apartment and housing owners against disappearing builders and defective workmanship. But the application of the developer bond scheme and DBI to social housing projects provides little additional protection for community housing providers in comparison to the steps they can take themselves. When limited protection is weighed against the costs of complying with these requirements, we consider that the developer bond scheme and DBI should be optional for all social housing projects in the interests of reducing costs and getting those projects built.

How we can help

If you want to know more about the application of developer bonds and DBI to your projects, or requirements for social housing developments more generally, please contact Hugh Watson or Kate Gorman.

Contact us

Please contact us for more detailed and tailored help.

Subscribe to our email updates and receive our articles directly in your inbox.

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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.}

Recent media coverage has put the spotlight back on the extent to which gig economy platforms can shirk their obligations under anti-discrimination law.

Earlier this year, Paula Hobley, a blind woman from regional Victoria, filed a case in the Federal Court alleging that Uber unlawfully discriminated against her by allowing its drivers to refuse service to her because of her assistance animal. Between March 2021 and November 2022, Uber drivers refused to pick up Ms Hobley on 32 separate occasions after she made a booking and let the driver know she was travelling with her guide dog.

Uber acknowledged that some of its users improperly cancel trips. However, Uber maintains that it is the Uber driver, as an independent contractor¹ who control cancellations, not Uber. In other words, Uber operates the Uber app for smartphone users but is not legally responsible for any discriminatory conduct of its drivers.

Ms Hobley’s claim is therefore an important test case to determine whether Uber can distance itself from the discriminatory conduct by its drivers. As we explain in this article, our anti-discrimination frameworks support the growing political and community pressure on app operators like Uber to take greater responsibility for the misconduct of the service providers who use the app to deliver services to users.

What does the law say?

Under state-based anti-discrimination laws such as the Victorian Equal Opportunity Act 2010 (Vic) (EO Act) and the federal Disability Discrimination Act 1992 (Cth) (DD Act), it is unlawful to discriminate directly or indirectly against someone on the basis of their disability. Both acts make it clear that discrimination on the basis of a disability also extends to discrimination on the basis that the person uses an assistance animal.²

While the tests vary slightly between jurisdictions, direct discrimination is treating, or proposing to treat, someone unfavourably because of a protected attribute, such as a disability. An Uber driver cancelling a trip because they see that the person requires an assistance animal is an example of direct discrimination. Being denied a service is a clear example of unfavourable treatment. 

In contrast, indirect discrimination occurs if someone imposes, or proposes to impose, a requirement, condition or practice:

• that has, or is likely to have, the effect of disadvantaging people with a protected attribute, such as a disability; and
• that is not reasonable.

Indirect discrimination recognises that even though a condition may appear to treat everyone the same, in practice it unfairly disadvantages some people or groups of people based on their protected attribute, such as their disability. For example, an Uber driver who has a blanket rule that they will not drive with an animal in their vehicle is an example of indirect discrimination. While the requirement not to travel with an animal treats everyone the same, it has the effect of disadvantaging people who require assistance animals.

When responding to an indirect discrimination claim, the service provider bears the onus of showing that the requirement was reasonable. While there are a range of factors considered to assess reasonableness, a blanket rule like this that does not provide any flexibility for those who require assistance animals is unlikely to be reasonable.

The EO Act and the DD Act also require service providers to make adjustments for people with a disability, unless the adjustments are not reasonable, or the person cannot access the service or derive any substantial benefit from it even after the adjustment is made (or another exception applies). Under the DD Act, service providers can rely on the defence of unjustifiable hardship if they can demonstrate that making the adjustment would impose unjustifiable hardship on the service provider.³

The application of these anti-discrimination laws to Uber’s independent contractor drivers would appear to be relatively clear. However, their application to Uber itself, and the extent to which Uber can be held responsible for the discriminatory actions of its drivers, will be key points of contention in Ms Hobley’s test case.

Uber asserts that the service it provides is access to the Uber app to smartphone users rather than the provision of the ride share service. On this basis, as long as Uber continues to provide disabled users with access to its app and has rules allowing users to ride with assistance animals, it is acting lawfully. Uber also asserts that the measures (and presumably the anticipated costs) that would be required to ensure Uber drivers do not discriminate against users with service animals would impose ‘unjustifiable hardship’ on Uber.

However, Uber’s argument has some flaws.

Uber already has robust systems in place to monitor driver conduct. Extending these services to monitor and respond to discriminatory conduct from drivers may therefore not meet the threshold for unjustifiable hardship.

In Victoria, the EO Act also has a positive duty that requires service providers such as Uber to take reasonable and proportionate measures to eliminate discrimination (as well as sexual harassment and victimisation) as far as possible.⁴ The positive duty aims to address systemic causes of discrimination, such as access refusals because of assistance animals, and overcome the limitations of our complaint-based legal system that places the onus on affected individuals to lodge discrimination claims.

The steps to comply with the positive duty vary for each organisation, taking into account their size, business, operations, resources and circumstances.

Given its size and resources, at a minimum, the positive duty requires Uber to:

• Assess its own (including its drivers) compliance with anti-discrimination laws and develop strategies for eliminating discrimination against its users;
• Take steps to ensure Uber drivers are aware that cancelling trips because a user requires an assistance animal is unacceptable, prohibited and discriminatory;
• Have robust systems to monitor, identify and eliminate inappropriate cancellations by drivers where a user requires an assistance animal; and
• Impose consequences for drivers who cancel trips because they see a user requires an assistance animal.

Unfortunately, the enforceability of Victoria’s positive duty is somewhat limited as individuals cannot complain to the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) or the Victorian Civil and Administrative Tribunal (VCAT) that Uber has failed to meet its positive duty,⁵ though compliance with the positive duty can be investigated by VEOHRC under the EO Act.

The measures required to meet the positive duty are similar to the measures that must be taken to avoid being found vicariously liable for discrimination. However, unlike vicarious liability, the positive duty requires measures taken to eliminate discrimination and operates regardless of whether a discrimination complaint has been made. The positive duty therefore requires a higher standard of proactive conduct by Uber. Complying with the positive duty would improve Uber’s service and make it more appealing to its users and the broader community.

What are other platforms doing?

Uber is not the only company taking a ‘hands off’ approach and trying to distance itself from the service providers who deliver services on its app.

⁶Organisations such as Mable and Airtasker assert that the service providers on their app are not employees or independent contractors.

Airtasker advises that it operates an online platform allowing users to connect through the Airtasker platform. Mable presents itself as simply facilitating a platform for customers and support workers to connect, and that it is not a party to any contract for care services.

This ‘hands off’ position of platform providers has been examined by the Disability Royal Commission, and was subject to scrutiny in the NSW Parliament.⁷ It also does not align with community expectations and the beneficial objectives of anti-discrimination legislation.

How we can help

Our safeguarding and discrimination team are skilled in guiding organisations to act consistently with their anti-discrimination obligations while balancing this with their practical and commercial reality. Our team can provide peace of mind in navigating any allegations of discrimination particularly where the scope of laws is yet to be tested.

If you would like to discuss how we can support your organisation, our team is here to help. Please contact Skye Rose, Tal Shmerling or Abbey Dalton if you would like further support.

Contact us

Please contact us for more detailed and tailored help.

Subscribe to our email updates and receive our articles directly in your inbox.

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_{Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.}

1. Case law has established that Uber drivers are independent contractors. See Gupta v Portier Pacific Pty Ltd [2020] FWCFB 1698 and Kaseris v Rasier Pacific VOF [2017] 272 IR 289. ↩︎
2. See EO Act s7, DD Act s8. ↩︎
3. Disability Discrimination Act 1992 (Cth) (DD Act) s 29A. The factors relevant to the question of whether hardship would be unjustifiable hardship are set out in s 11 of the DD Act. ↩︎
4. Equal Opportunity Act 2010 (Vic), s 15(2). ↩︎
5. Equal Opportunity Act 2010 (Vic), s 3. ↩︎
6. Mable User Agreement (Terms of Use)’, Mable (Web Page); ‘Airtasker User Agreement’, Airtasker (Web Page).  ↩︎
7. https://www.parliament.nsw.gov.au/lcdocs/other/16101/AQON%20Mable%20-%20received%207%20October%202021.pdf. ↩︎

Charities and other non-profit organisations rely on the good will and charity of donors. They are also familiar with the challenges of realising bequests that have been made by donors and perhaps less so about how it influences the management of donor records by the organisation.

The recently publicised Oxfam breach, brought to light the privacy risks in retaining donor information and how it is used across the organisation. It also highlighted that most donor information generally has an end-life of about seven (7) years after a valid last engagement with the organisation before it is no longer required and must be destroyed or de-identified.

There are some exceptions, including:

• When an individual has made a bequest to an organisation in their will;
• When an individual has notified the organisation that they no longer wish to be contacted; or
• When the last contact made with the organisation is not validly recorded.

What can we take away from Oxfam?

Oxfam reported an eligible data breach in January 2021 after discovering 1.7m donor records had been stolen by malicious actors. The OAIC commenced an investigation six months later citing concerns about Oxfam privacy practice, in particular, in relation to Australian Privacy Principle (APP) 11.1: security of personal information and APP 11.2: retention. Ultimately, the OAIC accepted an enforceable undertaking from Oxfam in February this year as part of its regulatory response.¹

The Oxfam breach provides several learnings:

• Not-for-profit (NFPs) organisations are not immune from threat actors.
• Organisations must have a clear picture of just how far their guardrails extend for protecting the personal information they hold. Testing environments are a red flag for ‘function creep’ and are more vulnerable to interference because they are often siloed, temporary and do not have the same level of security as production environments.
• Retention is one piece of the pie for securing personal information, but poor retention practices can cause the most impact when security is compromised.
• Retention periods for donor information should be clearly defined within the organisation. Whilst the seven (7) year period is specific to Oxfam, this was accepted by the OAIC and can be used as a de-facto benchmark for retention of donor information. Anything beyond that would, arguably, be entering into a territory of being beyond what is necessary under the APPs unless retention can be justified (e.g. it is required or authorised by law).
• Where an organisation has clear and affirmative records of an individual’s intent to leave a bequest in their will, there is a basis for legitimate indefinite retention.

So why does all this matter?

Active donor engagement is a core part of NFP operations who depend on the valuable contributions and support of their donor community. Protecting the personal information of this cohort of stakeholders goes toward building and ensuring trust and continued connection.

Whilst organisations might turn their attention to protecting personal information of active donors, they don’t often turn their minds to what happens when donors have stopped engaging with the organisation and significant time has passed since the original collection of personal information.

Destruction and de-identification of personal information is part and parcel with taking ‘reasonable steps’ to protect personal information. Organisations should have a picture of when personal information is no longer needed by:

• Developing policies and procedures specifying maximum retention periods for different supporter categories—such as active donors, non‑donors, bequest donors and those who have opted-out or no longer wish to be contacted. Consider the de-fact benchmark of seven (7) years;
• Defining mechanisms for and tracking the date of last engagement to provide a signal for when retention thresholds (e.g. seven years) are reached and destruction and de-identification can be enforced;
• Having clear processes for recording and individual’s intention to make a Gift in Will – this should be distinct and separate from other collection purposes and collection points;
• Training staff on the organisation’s retention policies; and
• Conducting periodic audits of retention practices.

Whilst many charities and other NFP organisations may not meet the thresholds for compliance with the Privacy Act 1988 (Cth), implementing these types of controls is simply good practice in an age when organisations are grappling with how to handle large volumes of data. Enhanced data governance is not just strategically important, it gives confidence to supporters that their privacy is being respected. Registered charities must also demonstrate good governance in alignment with requirements under the ACNC Governance Standards.

Read more about the OAIC’s guidance to NFP’s and charities in our article New privacy guidance for not-for-profits issued by the OAIC.

What about the recent privacy reforms?

Retaining data longer than necessary can breach APP 11.2, which requires an organisation (subject to the APPs) to destroy or de-identify the personal information it holds when it no longer needs it for any purpose or is not required to retain it under any Australian law or court/tribunal order.

The recent reforms introduced APP 11.3 which makes clear that ‘reasonable steps’ to protect personal information includes both technical and organisational measures – setting and applying retention policies are such steps.

Organisations are exposed to Notifiable Data Breaches (NDB) scheme triggers if long-held data is compromised leading to both public and regulatory scrutiny. The OAIC’s enhanced enforcement powers will also influence the landscape of how the regulator will respond to notifiable breaches in future.

With the new statutory tort for serious invasions of privacy now in effect, misuse of personal information arising from poor retention practices may also expose organisations to claims being bought by individuals where the individual would have a reasonable expectation of privacy, the invasion of privacy was intentional or reckless, and serious.

How we can help

Moores has dedicated privacy specialists who can work with you and support your organisation’s needs, including:

• compliance reviews and audits of practices;
• IT vendor contract reviews;
• the development of policies and procedures to support data governance and security;
• delivering privacy impact assessments of new systems and processes; and
• offering tailored advice.

Contact us

Please contact us for more detailed and tailored help.

Subscribe to our email updates and receive our articles directly in your inbox.

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_{Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.}

1. Oxfam Australia’s enforceable undertaking in respect of the Australian Information Commissioner’s investigation into Oxfam | OAIC ↩︎

By November this year, fixed term residential rental agreements in Victoria will in practice be prohibited. Recent amendments to the Residential Tenancies Act 1997 (RTA) repeal the section 91ZZD ground for issuing a notice to vacate at the end of a fixed term. This change will significantly impact Charitable Supported Housing programs which are predicated on short-to-medium term fixed rental arrangements. These programs are likely to become less effective in their ability to provide housing to vulnerable Victorians, and may even become unviable in future. A solution is urgently needed from the Victorian Government to resolve this issue.

What is ‘Charitable Supported Housing’?

In this article, we refer to ‘Charitable Supported Housing’ – this covers a range of programs operated by charities which provide accommodation to a specific cohort of individuals for a limited period of time (typically between 6 weeks and 24 months). Charitable Supported Housing is almost always provided to program participants at a significant rental discount.

Examples of Charitable Supported Housing include:

1. Independent housing for minors in state guardianship;
2. Transitional housing for people leaving prison;
3. Housing provided as part of drug or alcohol rehabilitation programs;
4. Medium-term housing for victims of domestic violence;
5. Short-term and medium-term housing funded by the NDIS; and
6. Transitional housing for people at risk of homelessness.

What has happened?

On 18 March 2025, the Consumer and Planning Amendment (Housing Statement Reform) Act 2025 (HSR Act) was passed into law. Among other things, the HSR Act repeals sections 91ZZD and 91ZZDA of the RTA – these sections previously allowed landlords to issue a renter with a notice to vacate at the end of the initial fixed term of their residential rental agreement.

In its public comments on the HSR Act, the Victorian Government explained that it is repealing sections 91ZZD and 91ZZDA in order to ‘crack down on an emerging trend which has seen some landlords evict tenants at the end of their first fixed-term lease in order raise the rent substantially when re-listing the rental property’. We understand the Government’s stated intention is to ensure long-term housing which is affordable for most Victorians – the HSR Act is clearly targeted at resolving an issue identified in the private rental market.

How does this affect Charitable Supported Housing?

The RTA does not distinguish between long-term private rentals and Charitable Supported Housing. As a result of the HSR Act amendments, it is no longer practical to operate a charitable housing program which delivers anything other than long-term housing (except in very rare circumstances where the RTA does not apply).

The tension between the RTA and Charitable Supported Housing is as follows:

1. Charitable Supported Housing is provided to individuals who are either:

1. receiving an intervention for a specific issue while living in that accommodation (e.g. drug rehab or mental health care); or
2. being housed for a limited period while long-term housing is identified (e.g. individuals leaving prison or transitional housing programs).

Once the intervention has been delivered or the entitlement period has expired, renters are expected to move out so that future participants in the program can use the property. It is crucial to the viability of Charitable Supported Housing programs that properties routinely become available for use by new participants. This necessarily requires existing participants to move out once their program involvement ends.

2. Sometimes, a participant may not want to move out at the end of the program. This is completely understandable – it may be the first stable accommodation they have had, or they may not want to leave a property where they receive subsidised rents. However, Charitable Supported Housing programs cannot function where renters are allowed to remain at program property indefinitely. Eventually, no new properties will be available for allocation to incoming participants who need the benefits of the service. 

3. Prior to the HSR Act, charitable housing providers managed their tenancies by issuing a notice to vacate at the end of the initial fixed term. This notice provided the incumbent renter with certainty regarding the date they need to vacate the property and provided the charitable housing provider with certainty that the property would be available for the next participant on their waiting list.

4. The HSR Act has repealed the only remaining provisions of the RTA which allowed for issuing a notice to vacate in these circumstances. Charitable housing providers now have zero ability to legally manage the duration of their short-to-medium term rental agreements. It is not an exaggeration to say that all RTA tenancies are now effectively long-term housing and, as a result, it is impractical to run a Charitable Supported Housing program.

5. There are also risks for charitable housing providers:

1. Charitable housing providers may exist to provide only short-term housing, or to provide housing only to people who meet certain criteria. The loss of control over their tenancy duration means those charitable housing providers may be acting outside of their stated purposes. This has reputational implications and – in the most extreme case – may impact an organisation’s ongoing registration with the Australian Charities and Not-for-profits Commission (ACNC) if it does not act in accordance with its purposes.
2. Charitable Supported Housing programs are typically funded by State or Federal government agencies. The terms of funding may require that:
   1. funding only be used to provide housing to individuals who meet eligibility criteria; or
   2. the charitable housing provider meets quotas for the number of participants in the Charitable Supported Housing Program.

Without the legal ability to turnover rented properties to new participants, charitable housing providers may breach their funding obligations and have no pathway to remedying the breach.

6. Over time, it is likely that more and more properties originally used for Charitable Supported Housing will become occupied by long-term renters who no longer meet program criteria. Although those renters will benefit from long-term housing, many others will be denied the ability to participate in Charitable Supported Housing programs as a result.

7. If the current situation persists, the resulting attrition in housing stock available for Charitable Supported Housing may make those programs unviable or significantly limit their effectiveness.

What steps need to be taken to preserve supported housing programs?

In our view, this problem needs a two-stage legislative fix from the Victorian Government:

1. Temporary fix – gazette transitional housing requirements

1. The RTA already contains provisions for issuing a notice to vacate in relation to a transitional housing agreement (i.e. a rental agreement for less than 12 months provided to persons at risk of homelessness).
2. Section 91ZZF provides that Homes Victoria or its delegate may give a notice to vacate to a transitional housing renter where:
   1. Homes Victoria has published a set of requirements for transitional housing renters to seek alternative accommodation; and
   2. the renter has unreasonably refused to seek alternative accommodation, or unreasonably refused an offer of alternative accommodation.
3. Frustratingly, section 91ZZF is functionally useless. Homes Victoria has never published requirements for renters to seek alternative accommodation, and therefore it is impossible to issue a valid notice to vacate on these grounds.
4. Even if such requirements were published, this clause only applies:
   1. to Homes Victoria or its delegate (which requires an instrument of delegation); and
   2. in transitional housing circumstances.
5. The charitable housing sector would undoubtedly welcome the publication of transitional housing requirements. However, it must be acknowledged that this doesn’t provide a solution to the majority Supported Housing Programs, either because the charitable housing provider is not a delegate of Homes Victoria or because the program does not target individuals at risk of homelessness.

2. Long-term fix – consult with the charitable housing sector and amend the RTA

In practice, the RTA needs a number of amendments so that Charitable Supported Housing programs can function as intended. This could include:

1. A definition for charitable housing providers which is broader than a ‘registered agency’ as defined by the Housing Act. Many charitable housing providers are not registered agencies because they only provide short-to-medium-term housing and are funded accordingly.
2. Providing exemptions from the RTA (or specific sections of the RTA) for housing provided by a charitable housing provider for a fixed period less than 12 months for exclusively charitable purposes. This could align with tests for ‘charitable use’ already employed by the State Revenue Office under other legislation.  
3. Establishing new grounds to issue a notice to vacate in circumstances where a renter was originally provided housing a part of a Charitable Supported Housing program, and that renter is now no longer eligible to participate in that program. ‘Eligibility requirements’ have previously existed in the RTA, but have only applied to public housing tenancies.

We acknowledge that the RTA is still a vital protection for vulnerable renters in charitable housing. Any changes made to the RTA should be for the purpose of ensuring that Charitable Supported Housing programs are able to continue to operate as intended.

Conclusion

The charitable housing providers we work with are incredibly committed to sustaining tenancies for as long as possible, ideally until the renter finds suitable alternative accommodation. It is a sad fact that Charitable Supported Housing programs and properties are needed. But they were never intended to provide a renter with their ‘forever home’. The ability to issue a notice to vacate to a renter in those programs helps to ensure that housing can be used to support future program participants. Eviction is always a last resort.

Victoria is in the midst of a housing crisis, and steps must be taken to address it. However, there must also be reasonable consideration by the Victorian Government of charitable housing models other than long-term housing, particularly when Charitable Supported Housing plays a key role in preventing homelessness and providing vital supports to vulnerable people.

How we can help

If you are concerned that your organisation is providing accommodation that may be affected by the recent RTA amendments, please contact Ed Hamley or Andrew Boer for tailored advice.

Contact us

Please contact us if you would like further information on how we can assist.

Subscribe to our email updates and receive our articles directly in your inbox.

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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 your organisation.}

In response to the current childcare crisis, the Albanese Government has introduced the Early Childhood Education and Care (Strengthening Regulation of Early Education) Bill 2025 (Cth) (Bill), a sweeping package of reforms designed to lift safety and quality standards across the sector.

The Bill signals a clear policy direction: quality and child safety will be non-negotiable.

New Federal Powers – Funding Linked to Compliance

If passed, the Bill will give the Federal Government enhanced oversight, including powers to:

• Revoke access to the Child Care Subsidy (CCS) for services that fail to meet the National Quality Standards;
• Conduct unannounced spot checks to detect fraud or non-compliance through Commonwealth officers;
• Publicly disclose compliance actions, including suspensions, cancellations, and refusals of CCS applications; and
• Legislate direct gap fee collection, requiring families to pay CCS gap fees directly to providers (as announced in the 2024–25 Budget).

This “funding as leverage” approach represents a significant shift in the regulatory landscape for providers.

Higher Bar for Approvals and Renewals

Under the Bill, the Secretary will have broader discretion to refuse, suspend, or cancel CCS approvals based on a provider’s:

• Compliance history under the National Quality Standards;
• Record of serious incidents or complaints related to quality and safety; and
• Previous quality ratings or conditions imposed.

This effectively raises the entry and ongoing compliance bar for providers. While some stakeholders are calling for further reform to staffing ratios (including review of the “under the roof” approach), the Bill has not yet addressed those provisions.

Expanded Compliance and Transparency Measures

The Bill also proposes:

• Broader inspection powers – Authorised officers will be able to enter provider premises during operating hours without consent, a significant shift from existing powers under the Regulatory Powers (Standard Provisions) Act 2014 (Cth); and
• Greater transparency – The Department may publish decisions relating to CCS approvals, including details of suspensions, cancellations, and imposed conditions.

These measures signal a strong emphasis on deterrence and accountability.

Direct gap fee collection

The Bill proposes that from 1 January 2026, Family Day Care (FDC) and In Home Care (IHC) providers must collect CCS gap fees directly from families. This means that educators in these services will no longer be able to collect the gap fee themselves on behalf of providers. All gap fees must be paid by EFT (unless an exemption has been granted). Many FDC and IHC providers already directly collect CCS gap fees.

This change aims to strengthen the sector by:

• ensuring that the CCS is correctly administered and that gap fees are being paid as required;
• freeing up FDC and IHC educators from the time and effort of collecting fees from families so they can focus on providing education and care for children;
• giving families, governments and regulators greater confidence in the sector’s viability.

Forthcoming Changes – What’s Next

The Bill signals a significant shift in regulation of providers in the sector. Further reforms are in the pipeline, including:

• A nationwide early childhood workforce register;
• Implementation of recommendations from the Rapid Child Safety Review Report (due August 2025);
• A mobile device ban in Victorian early learning centres from 26 September 2025;
• Exploration of CCTV use in centres; and
• Mandatory child safety training for educators.

In the meantime, Victoria will introduce its own Early Childhood Workforce Register this August 2025, with initial requirements applying to services receiving government funding. Recruitment agency staff and broader sector coverage will follow later this year. Critics have argued that the staged rollout will leave compliance gaps during the transition.

Moores’ Perspective

At Moores, we see these proposed reforms as a clear message: quality and safety are the price of admission to the sector. While defunding may be a powerful enforcement tool, its practical application will be tested in areas where childcare demand exceeds supply.

Sustainable reform will require more than compliance threats — it will require systemic investment in child safety practices, workforce capability, and transparent governance.

How we can help

At Moores, our Safeguarding and Child Safety teams work alongside organisations to ensure their child safety frameworks are robust, compliant, and reflective of best practice. Our experienced team supports clients to:

• Review and update Child Safety Policies and Codes of Conduct;
• Respond effectively to allegations of child abuse;
• Navigate investigations and compliance obligations; and
• Develop practical, preventative strategies that promote a culture of child safety.

We also provide tailored training for staff, boards, and child safety officers to ensure all individuals understand their role in protecting children.

Contact us

If you would like to discuss how we can support your organisation, our education and safeguarding teams are here to help. Please contact Cecelia Irvine-So or Skye Rose if you would like further support. 

View our dedicated page on the Childcare and Early Education Reforms and subscribe to receive updates directly in your inbox.

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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 your organisation.}

While Victorian law imposes strict formal requirements for making a valid Will, including rules around signing and witnessing, section 9 of the Wills Act 1997 (Vic) provides the Court with discretion to dispense with these formalities in certain circumstances. This flexibility is designed to ensure that genuine testamentary intentions are not defeated simply because a document fails to meet technical requirements, whether due to the surrounding circumstances or a lack of understanding of the legal process.

However, this discretion is not automatic: the Court must be satisfied, based on the available evidence, that the document reflects the deceased’s final intentions and meets specific criteria.

To admit an informal will to probate, it must be able to be established that:

• The deceased intended the document to be their will. This may be supported by evidence such as how and where the document was kept, why it was not formally executed, and any statements made by the deceased indicating they had made or intended to make a will.
• The deceased had testamentary capacity at the relevant time. This means they understood the nature and effect of making a will, had a general awareness of their assets, and could identify and weigh the claims of those with a natural claim on their estate.
• The document was authored or adopted by the deceased. This may include evidence that the deceased prepared or signed the document, or otherwise accepted it as their will through their conduct.

Recent Cases

• Re Norris; Lindsay v Howie [2025] VSC 85: An unsigned will prepared by the deceased’s solicitor on her instructions was accepted as valid. Following a separation from her husband, to whom she remained legally married, the deceased provided instructions to her solicitor for a new Will. Although the deceased arranged to meet with her solicitor to sign the Will, she passed away before she could do so. The deceased’s estranged husband argued that the deceased had died intestate, and therefore that he was entitled to her entire estate under the intestacy provisions. 
  
  In finding that the deceased intended the unsigned document (which she had not actually seen) to be her final Will, the Court relied on the evidence of the deceased’s lawyer that she had read the Will aloud to the deceased over the phone, the deceased had stated she was happy with the Will, and the lawyer had printed and bound the Will in anticipation of it being signed by the deceased. 
  
  
• Re Wallace [2024] VSC 22 concerned a ‘joint’ Will made by the deceased and her husband, shortly before embarking on an overseas trip. On the way to the airport, the deceased called one of the named executors and told him they had made a will, that he was an executor, and where the Will was kept; the other executors were also notified before or after the couple returned from their trip. Neither testator turned their mind to obtaining witnesses when making the Will. The Court accepted the document as an informal Will and admitted it to probate.
  
  
• Re Estate of Hirschfeld [2023] VSC 562 involved an unsigned Will and an Estate that would have otherwise followed rules of intestacy law, had the court not accepted that there was an informal will. In this case, the intentions of the deceased were apparent and non-contentious, as she had advised her executor and daughter of her intentions. The court accepted that the Will would have been signed, had the deceased not passed way prior to her signing appointment due to her deteriorating health.
  
  
• Re Kalenyouk [2024] VSC 390 involved a handwritten document titled ‘Will’ prepared by the deceased four days before his death. Although the deceased had signed the Will before only one witness, the Court accepted it to be an informal Will as there was compelling evidence to confirm the deceased’s intentions despite his critical health condition. This included that he titled the document ‘Will’, it revoked previous wills, he expressed his intentions to write a Will to his son-in law, and he had requested legal advice on requirements for submitting an informal Will.
  
  
• In contrast, in Re Larcombe [2022] VSC 741 the Court dismissed an application for probate of one-page handwritten document that misspelt the deceased’s first and last names, and which was signed before only one witness. The document in question was prepared by a family member of the deceased on the same day the deceased was admitted into hospital.
  
  In making its decision, the Court was not satisfied the deceased understood the general nature and value of his estate or the effect of the document. Critically, there were significant concerns about the deceased’s testamentary capacity, and a lack of evidence that the informal Will reflected the deceased’s wishes.   

Key takeaways

Whilst never a substitute for proper estate planning, the Court’s power under section 9 of the Wills Act 1997 (Vic) can be a valuable mechanism to ensure technical non-compliance with formalities for a Will does not inadvertently frustrate a person’s testamentary intentions.

How we can help

If you are dealing with a potential informal Will or considering your own estate planning, it’s important to seek legal advice as soon as possible. Our experienced wills and estates team would be happy to assist you.

Contact us

Please contact us if you would like further information on how we can assist.

Subscribe to our email updates and receive our articles directly in your inbox.

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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 your organisation.}

The recent Full Bench decision in Naden v Catholic Schools Broken Bay [2025] FWCFB 82 delivers a timely reminder: employers must strictly comply with the procedural and substantive requirements in the Fair Work Act 2009 (Cth) (FW Act) when responding to flexible work requests by employees.

The case reinforces that it’s not enough for employers to believe they have reasonable business grounds—they must also follow the proper process under s 65A of the FW Act to lawfully refuse a request.

Background

Ms Elizabeth Naden, a long-serving teacher and Religious Education Coordinator (REC) at Sacred Heart Primary School in Pymble (School), submitted a flexible work request to return part-time after parental leave under the Catholic Schools Broken Bay Enterprise Agreement 2023, which mirrors the provisions of the FW Act. The employee proposed to job-share the REC role and work three days per week in Terms 1 and 2 of 2025, before resuming full-time duties in Term 3.

The School expressed concern about approving Ms Naden’s request, noting that it could not provide flexible work arrangement for executive roles, and instead offered her a classroom teacher position during that period. On 12 December 2024—82 days after the request—the School formally declined her proposal, citing adverse impacts on student outcomes, leadership continuity, the workload of other staff, and staffing costs.

Ms Naden disagreed and referred the matter to the Fair Work Commission under s 739 of the FW Act.

Legal requirements for responding to flexible work requests

Employees have a right to request flexible work under the National Employment Standards (NES) in the FW Act if they meet specified criteria, such as being pregnant, a parent or carer, having a disability, being 55 or older, experiencing family/domestic violence, or providing care to someone experiencing family/domestic violence.

For an employer’s refusal to be valid, all elements of s 65A(3) must be met. It is only lawful to refuse a request if:

• The employer has discussed the request with the employee, and genuinely tried to reach agreement with the employee about changes to accommodate their circumstances.
• No agreement has been reached.
• The employer has had regard to the consequences of the refusal for the employee.
• The refusal is on reasonable business grounds
• The employer provides the employee with a written response within 21 days of receiving the request.

‘Reasonable business grounds’ for refusing a request

Section 65A(5) of the FW Act outlines a non-exhaustive list of what may constitute “reasonable business grounds” to refuse a flexible work request.

These include:

• excessive cost;
• lack of capacity or impracticality in rearranging or recruiting staff;
• significant loss in efficiency or productivity; or
• a serious negative impact on service delivery.

Importantly, these grounds must be assessed in the context of the employer’s specific circumstances—such as the size and nature of the organisation—which may influence whether such grounds are objectively reasonable under s 65A(3)(d) and (4). For example, a smaller school with limited staff may have less capacity to accommodate a job-share arrangement.

FWC Full Bench Decision

The School’s decision to refuse the request was upheld at first instance. However, on appeal, the Full Bench overturned that decision. The key failure? The School did not demonstrate that it considered the personal impact of the refusal on Ms Naden—a specific and mandatory requirement under s 65A(3) of the FW Act.

As the Full Bench explained (at [47]):

“The respondent… was not entitled to refuse the request unless [it] had regard to those consequences… The evidence did not establish that the respondent had regard to those consequences when it refused the request.”

Ultimately, the Commission found that the refusal was not lawful. The practical effect: Ms Naden should have been permitted to return part-time in accordance with her flexible work request.

Key lessons for employers

This case highlights three critical lessons for employers and school leaders considering flexible work requests:

1. Strict compliance is non-negotiable: Even if business reasons exist, a refusal will be invalid if any procedural step is skipped—particularly failing to consider the employee’s personal circumstances. Here, the employee had secured childcare for three days per week until term 3, and declining her request would have had the effect of depriving her of her leadership role.
   
2. Timing matters: The School took 82 days to respond—well beyond the 21-day statutory deadline. While not the main basis for the decision, this delay undermined its case and shows that lateness can damage credibility.
   
3. Dispute pathways are now broader: Since June 2023, employees can escalate flexible work disputes to the FWC, even outside of enterprise agreements. This expanded access increases exposure for employers that don’t manage requests lawfully and transparently.

How We Can Help

Our Workplace Relations team supports employers with:

• Assessing and responding to flexible work requests.
• Drafting compliant correspondence and documentation that properly addresses all relevant factors in an objective manner.
• Training leadership teams on their legal obligations and best practice when responding to flexible work requests.

We can help you make decisions that are both legally sound and practically workable—reducing risk while supporting staff wellbeing.

Contact us

Please contact us if you would like further information on how we can assist.

Subscribe to our email updates and receive our articles directly in your inbox.

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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 your organisation.}