Victoria will further relax its COVIDSafe settings following reduced exposure risk as Victoria continues to have low community transmission.
From 6pm on Friday 26 March 2021, places of worship must ensure that attendance records are maintained electronically through the Services Vic app or a government API-linked digital system. There will be a 28 day grace period for compliance.
To establish a check-in system for your place of worship through Services Vic, click here.
If your worship services are conducted indoors, you will continue to be subject to a density quotient of 1 per 2sqm.
If your place of worship is ordinarily used as a wedding or funeral venue, there will no longer be maximum attendee caps indoors or outdoors. However, records must be maintained in the manner set out above.
As always, Moores is here to help – for more information regarding the new rules, please do not hesitate to contact us.
When an employer becomes aware of criminal allegations against a worker such as theft, fraud, stalking, sexual assault, illegal drug use, child safety related offences (e.g. grooming) or driving offences, it should carefully consider its response in line with its values, commitment to maintaining a safe working environment, culture, and reporting and employment obligations.
The Child Safety and Workplace Relations teams at Moores act as trusted advisors to employers in times of crisis. In this article, we set out our top tips for responding to serious or criminal allegations.
Once the employer is aware of a serious allegation, the first priority should always be the health and safety of those concerned, particularly the alleged victim or informant.
An employer may need to separate colleagues or clients to minimise the risk of physical or mental harm. That may involve reassigning employees, changing their reporting lines or temporarily standing them down from work. Preliminary legal advice should be obtained to ensure that staff are treated fairly and appropriately, in line with organisational policies and relevant legal obligations.
Organisations will often appoint the Head of HR or a senior business leader to be the primary contact for the alleged victim and/or informant. This person typically plays a “welfare officer” role.
A “welfare officer” needs to take an empathetic approach and have the necessary organisational authority to ensure the health and wellbeing of the people closest to the incident. For example, the welfare officer would need to be able to discretely speak with relevant managers to arrange time-off, alternative duties or new reporting lines for people closest to the incident. The welfare officer would also need to be competent to advise people of their rights and obligations in relation to non-victimisation.
The welfare officer may need to discuss with internal stakeholders whether the respondent (i.e. the person against whom the allegations are made) should be removed from the workplace immediately, or stood down from duties pending an investigation. These discussions are often challenging. Whilst the presumption of innocence is important, an employer also needs to balance that against the health and safety risks based on the information it has available.
Subject to the size of the organisation, it may be appropriate for the employer to appoint a Committee responsible for coordinating its response to the concerns. This Committee typically makes strategic decisions, receives legal advice and liaises with external authorities. It is usually comprised of two to three people (including a welfare officer); anything more than five can become unwieldy.
The Committee should obtain early legal advice to deal with issues such as preserving evidence and the scope of the investigation. It should also be responsible for safeguarding privilege over legal advice. To preserve legal professional privilege in an organisation, its confidentiality must be maintained. Circulating legal advice outside of a core “need to know” group may inadvertently waive legal professional privilege attached to that advice, which could result in the organisation being compelled to disclose privileged materials to regulators or litigants.
Employers should prioritise the collection and preservation of evidence. Where there is the prospect of criminal proceedings, the means by which evidence is gathered may be of crucial importance.
A careful and lawful process needs to be undertaken to ensure the integrity of all evidence obtained. This will generally involve:
Where electronic evidence is involved, a forensic technology expert may be required to create a verifiable backup or mirror image of the computer system.
Employers should carefully consider their rights and responsibilities under employment contracts, policies and industrial instruments before taking steps to suspend access or recover property.
Regulators and funders usually appreciate prompt notifications about concerns.
Depending on the incident and the employer’s sector, a serious incident may trigger reporting obligations. These obligations can be triggered even if the organisation does not have all the relevant facts, and the organisation is still investigating the allegations.
Some occupations, such as those in the medical and education sectors, have specific reporting requirements, particularly for issues such as suspected child abuse.
By way of example, some of the key mandatory reporting requirements in Victoria are summarised below.
In New South Wales, adults who know or believe that a serious indictable offence has been committed by another person are required to notify the NSW Police Force or other appropriate authority of any information which might be of material assistance to them in securing the apprehension of the offender or the prosecution or conviction of the offender for that offence.[5]
We may see more mandatory reporting laws coming into place. The Victorian Government is considering reforms that would require employers to notify WorkSafe of incidents of sexual harassment.
Employers may be concerned about the risk of defaming individuals by reporting a concern to a regulator. However, the common law principle of qualified privilege protects people from defamation action when they make mandatory disclosures to a statutory authority in good faith.
An employer may be required to undertake an investigation before any employment action is taken. For example, a School or an accredited NDIS provider is required to promptly investigate notifiable incidents. If the Police or other regulators are investigating, then the employer will need to consult with those authorities prior to commencing its investigation, so that the employer does not interfere with those regulatory investigations.
Rarely, if ever, should serious or criminal concerns (including concerns of sexual harassment) be investigated internally. Independence and objectivity will help to ensure that there is trust and confidence in an organisation’s response to the concerns.
When it comes to investigations there is no one-size fits all solution. The appropriate course of action will depend on various factors, including the employer’s sector, its size, its risk profile and the seriousness of the allegations.
Moores has extensive experience in managing and advising on complex regulatory investigations, including in relation to child abuse, fraud, sexual harassment and criminal conduct. If you need a trusted advisor to support you through this process, please do not hesitate to contact us.
Note: This article contains general information only. It is not legal advice and should not be relied upon as such. You should always obtain legal advice based on your needs and circumstances before taking action on the matters referred to in this article.
[1] See the Department of Health and Human Services’ mandatory reporting webpage for a full list of mandatory reporters.[2] In Victoria, reporting to DHHS is due to be transferred to the Department of Families, Fairness and Housing, which will be the new government body for child safety matters.[3] Reportable incidents include the death, serious injury, abuse and sexual misconduct of a person with a disability. See National Disability Insurance Scheme Act 2013 (Cth) s 73Z.[4] Notifiable conduct includes practising while intoxicated by alcohol or drugs, engaging in sexual misconduct and placing, or being at risk of placing, the public at risk of harm. See Disability Service Safeguards Act 2018 (Vic).[5] Crimes Act 1900 (NSW) s 316.
Depending on whether an employee’s salary is expressed as inclusive or exclusive of superannuation, it may result in decrease in an employee’s take home pay, or increased costs for the employer. Consequently, employers should carefully consider the entitlements owed to workers and whether adjustments must be made.
It is important to get superannuation right because there is no statute of limitations on superannuation. Furthermore, if an employer underpays superannuation, it is not a simple matter of making an additional payment to the employee’s super account. The employer is required to pay the money to the ATO together with an administration penalty (75 percent of the liability)[2] and a penalty under Part 7 of the Superannuation Guarantee (Administration) Act 1992 (Cth), which is up to 200 percent of the underpaid superannuation. Similar to other areas of regulation, self-reporting may reduce the penalty imposed.
The laws governing superannuation can be quite technical. This article sets out some key considerations for employers reviewing their organisation’s superannuation arrangements.
Superannuation is often framed as an add-on to wages. This is why we say “the pay for this job is $60,000 plus 9.5 percent super”. Every time we use the phrase “plus super”, we are saying that remuneration is exclusive of superannuation.
The benefit of structuring pay as exclusive of superannuation is that it makes it easy to compare the pay rates against Award and Enterprise Agreement rates, because wage rates in Modern Awards and Enterprise Agreements are exclusive of superannuation.
Executives and professionals (including lawyers in law firms) typically have their wages expressed inclusive of superannuation: (e.g. “The salary is $60,000 inclusive of super” or “$54,794 plus 9.5 percent superannuation”). For this group of employees, their take-home pay will reduce on 1 July 2021.
It is not safe to assume that your organisation’s overall wage costs will consistently increase on 1 July 2021 when minimum superannuation contribution rate increases, especially if your organisation’s offer letters and employment contracts have evolved over time. Now is a good time to review your employment documents to assess whether employees have their remuneration expressed as inclusive or exclusive of superannuation.
Some employees receive more than the legal minimum superannuation contribution, either because they salary sacrifice superannuation or their employment contracts say that they are entitled to more superannuation than the legal minimum (which will be 10 percent on 1 July 2021).
The 0.5 percent increase in the minimum superannuation contribution does not automatically mean that all superannuation contributions in your organisation must increase by 0.5 percent.
It is a good time to revisit your salary sacrifice and employment documentation to consider what the impact is, if any, of the increase in superannuation contributions.
The superannuation legislation deems certain contractors (non-employee workers) to be employees eligible to receive superannuation contributions. The ATO interprets these deeming provisions to mean that your organisation (as the “Principal” in that contractor relationship) needs to make superannuation contributions if the contractor meets all of these criteria:
Typically, contractor agreements may push the responsibility for making superannuation contributions to the contractor-worker. However, this does not exonerate the Principal from the statutory obligation to make superannuation contributions.
Now is a good time to consider whether your organisation has any potential liability for superannuation for any of its contractors, and whether any underpayments or other past practices need to be rectified.
Superannuation is paid on “Ordinary Time Earnings”. This is a list of common payment types which the ATO has referred to in its key superannuation ruling SGR 2009/2:
From time to time, it can be difficult to determine whether a particular payment is subject to superannuation. When that happens, it can be helpful to consider the intent of the legislation. Helpfully, the Full Court in Bluescope Steel v AWU said that superannuation legislation aims to provide a simple and efficient way of securing a minimum level of superannuation for workers based on “self-assessment by employers and administration by employers and the Australian Tax Office”.[3]
The upshot is, we need to apply a different lens to superannuation to how we normally look at employment entitlements. Superannuation legislation is not beneficial legislation (beneficial legislation like the Long Service Leave Act is interpreted so that the benefit of the doubt goes automatically in favour of the employee). Superannuation legislation needs to be interpreted with this question in mind: what makes sense given that the system is meant to be simple and easy to administer?
When difficult questions arise in relation to superannuation, it might even be appropriate to approach the ATO for an administratively binding advice.
With the increase to the minimum superannuation contribution, it is worth looking at whether your superannuation arrangements comply with prevailing standards. It pays to be proactive in this space, particularly as there is no statute of limitations.
In light of these changes, we recommend that employers consider:
For more information on what this might mean for your organisation or how to apply it practically, please do not hesitate to contact us.
[1] From time to time, we hear news that the Coalition Government is considering delaying this superannuation contribution increase. At this time, the Coalition Government has not put forward any legislation to change the scheduled increase.[2] Pursuant to Section 284-75(3) of Schedule 1 of the Taxation Administration Act 1953. This penalty is known as a TAA default assessment administrative penalty.[3] Bluescope Steel (AIS) Pty Ltd v Australian Workers’ Union [2019] FCAFC 84 (24 May 2019), [43] Alsop CJ
Exemptions from land tax and council rates are available for properties in Victoria that are used for charitable purposes, even if the property is owned by a third party and occupied by the charity under a commercial lease. Despite the availability of these exemptions, some charities are still paying land tax and/or council rates.
Moores has been able to assist in preparing and submitting applications and ensuring that exemptions are provided where properties are used for charitable purposes. Charitable funds don’t come easy and we know that every little bit counts. Land tax and/or council rates can add up and exemptions are a welcome relief, providing extra funds for charities to get on with making a positive difference in the world.
If your charity owns or leases property in Victoria, it’s definitely worth checking whether or not it is unnecessarily paying land tax and/or council rates. Below is some further information regarding eligibility for exemptions.
Land tax exemptions are provided for charities under the Land Tax Act 2005. Exemption is not automatic – it is granted only in response to an application. In order for a property to qualify for a land tax exemption, the State Revenue Office must be satisfied that:
Council rates exemptions are provided for charities under the Local Government Act 1989. In order for a property to qualify for an exemption the property must be used exclusively for charitable purposes.
Charities don’t need to be the owner of a property in order for an exemption to be granted. A charity that is a tenant can make an application for an exemption for land tax and/or council rates.
You may need authorisation from the taxpayer (the landlord) to make the exemption application.
There is likely to be some benefit in making an application for a tenanted property, since:
Applications for exemptions are normally granted for current and future assessments. However, in some instances retrospective applications may be successful, and it is worth making a retrospective request alongside any request for an exemption for current or future land tax and/or council rates.
If you need assistance with seeking a charitable exemption for land tax or council rates, please do not hesitate to contact us.
The Victorian Registration and Qualifications Authority (VRQA) has updated its Provider Risk Framework (Framework) that it will use to determine the appropriate level of oversight for each registered provider, including schools. It demonstrates the VRQA’s increased focus on governance and financial viability, while continuing to emphasise the importance of child safety.
Schools should view their own governance and operations through the lens of the Framework, which will enable them to identify areas of greatest regulatory exposure and proactively take steps to mitigate risks and to avoid unnecessary regulatory scrutiny.
The Framework identifies five key areas of risk being:
Under each area, the VRQA sets out indicators that indicate a lower level of risk is required of that provider and indicators that require an increased level of oversight. The VRQA notes that it may consider other factors.
The VRQA has set out some significant indicators of risk. Schools with these indicators are likely to be subject to increased level of oversight and scrutiny by the VRQA. Some of these indicators include:
The VRQA has also identified failure to have required policies and procedures in place as a red flag, such as:
The updated Framework aligns with the VRQA’s increased interest in a school’s governance and commercial arrangements. Following the Betrayal of Trust Report in 2013, there is increased pressure on schools that are unincorporated or do not have proper governance structures in place. While there have been several legislative changes to ensure unincorporated entities cannot escape liability for child abuse, it remains an area of significant scrutiny by the VRQA. There is no clear rule that schools in Victoria must be separately incorporated. However, organisations with unincorporated entities should carefully consider their governance structure and ensure that their governing bodies can have sufficient oversight of all schools. In many cases, schools and school systems are being required to restructure in order to meet current regulatory requirements.
The Framework demonstrates that student welfare remains a key priority for the VRQA. This is unsurprising given that in the 2019/2020 year, the VRQA’s assessment of 699 providers found that 43% were non-compliant with the Child Safe Standards / Ministerial Order 870. There was also a 10% increase in complaints received by the VRQA compared with 2018-19, and these were predominantly in the areas of student welfare and child safety.
Organisations that operate multiple schools, especially those that also operate schools in other states, are likely to continue to be a focus of VRQA’s reviews and compliance action. This is particularly where there are related party transactions or lack of transparency regarding business planning, accountability, and oversight by the governing body. Organisations that do operate across multiple states and territories need to be mindful of the unique regulatory regime in Victoria and the often more onerous obligations.
We recommend that schools in Victoria take the following next steps in response to the VRQA’s updated framework:
For more information or guidance regarding the VRQA’s Provider Risk Framework, please do not hesitate to contact us.
With little fanfare, the Victorian Government has recently passed a significant amendment to the Land Tax Act 2005 (Vic). Special land tax is gone!
Among other things, the State Taxation Acts Amendment Act 2020 (Vic) abolished special land tax in Victoria with effect from 16 December 2020. Many in the property industry and particularly not for profit landowners will breathe a sigh of relief that this land tax trap will no longer exist.
Special land tax is a one-off tax charged when certain types of land that are exempt from land tax cease to be exempt land. The amount of special land tax is significant – 5% of the land’s taxable value. Liability arises at the date when the land ceased to be exempt.
The special land tax liability arose when a certain exemption grounds ceased to apply, including:
In the parliamentary documents for the amending Act, we are reminded that special land tax was introduced in 1973 to discourage land speculators from claiming spurious land tax exemptions while waiting for land to increase in value. The Government now considers that changes to its tax and planning framework mean special land tax is no longer fit for its original purpose. Arguably, the charging of special land tax discourages redevelopment and in reality, it often fell inequitably on not for profit entities that operated residential care facilities, disability services or cultural activities rather than speculators as originally intended.
As a result of the amendments to the Land Tax Act, from 16 December 2020 special land tax will no longer be assessed when an exempt use ceases to apply to land. Importantly, special land tax will still be applicable when exempt land ceased to be exempt before 16 December 2020.
The removal of special land tax is positive news for some ‘for purpose’ landowners. No longer will a hefty special land tax charge be a barrier to the consideration of the best use of resources or progressing new strategic directions. For other landowners, special land tax was a potential barrier to redevelopment of land, as most of the exemption categories captured by the special land tax net were large sites with the potential for meaningful infill development. Perhaps this may result in more affordable housing in established areas. Good news for aspiring homeowners too!
Of course, it is rare for the Government to provide a gift without strings attached. We expect these consequences will come in the form of increased audit activity to identify general land tax noncompliance.
We encourage all landowners to review their most recent land tax assessments and ensure that any anomalies are clarified and if necessary, reported to the State Revenue Office. Self-reporting is generally viewed more favourably than a noncompliance identified in an audit, which may result in significant interest and penalties.
If you require assistance in reviewing your land tax status or addressing any potential noncompliance, get in touch with our experienced team. We can advise you and if required, make submissions on your behalf to the State Revenue Office. For more information, please do not hesitate to contact us.
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.
When planning or advising about how to secure the financial security of a loved one with a disability, two prominent goals stand out:
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.
Full pensions reduce when the assets are more than the limit for the person’s situation:
Part pensions cancel when the assets are over the cut off point for the person’s situation:
The assets that Centrelink will take into account include the value of things like:
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.
The standard income test for assessing someone in relation to a DSP is:
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.
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.
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:
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 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.
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.
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:
For more information or guidance regarding mandatory vaccinations or employment advice regarding COVID-19, please do not hesitate to contact us.
[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.
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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.
Clarification of the Corporations Act provisions concerning personal versus general advice and the “best interests” duty is welcome.
For further information or assistance regarding any of the above, please do not hesitate to contact us.