Effective 1 October 2020, more employees working in the community service sector will need to be registered with the Victorian Portable Long Service Authority (Authority). The Long Service Benefits Portability Regulations 2020 (Vic)(New Regulations) expand (and clarify) which community services sector employers need to register for benefits under the Scheme.
The Long Service Benefits Portability Interim Regulations 2019 (Vic) (Interim Regulations), which operated from 20 November 2019 to 30 September 2020, required employers to register workers (and contribute the 1.65% levy) for employees whose predominant activity is the personal delivery of community services. Under the New Regulations, operative from 1 October 2020, the pre-dominant activity test no longer applies, meaning that an employee’s eligibility for the Portable Long Service Leave Scheme (Scheme) is determined by Award coverage.
Given that the reforms are only recent, it is worth a recap on its key elements of the Scheme.
Put simply, there are three key features of the Scheme:
Coverage for employers is largely determined by whether the organisation provides community service work in the community services sector. Schedule 1 of the Long Service Portability Act 2018 (Vic) and the New Regulations define the term “community service work”.
Since 1 January 2020, entities funded by the National Disability Insurance Scheme and entities licensed children’s service entities that are not schools are covered by the community services sector.
Generally speaking, an employer in the community services sector is only required to register when it has one or more employees performing community service work.
Organisations operating in multiple states and territories may still be caught by the Scheme.
The Interim Regulations covered workers engaged in a role with the predominant activity being personal delivery of services. However, the pre-dominant purpose test no longer applies.
When a business is covered by the community services sector, it is likely that it will have employees doing “community service work”. The main change under the New Regulations is that a business is only required to register employees (and pay the levy for employees) who are covered by one of these Awards:
Employers should now review relevant Awards to confirm whether their workers are Award-covered, as coverage may trigger the obligation to register the worker with the Authority. Determining Award coverage is particularly challenging for two types of employees:
The test for Award coverage is whether an employee is substantially engaged in the duties of the classification.
Within one month of the end of each quarter, a registered employer must update the Authority as to how many days the employee has worked, their ordinary pay for that period and LSL taken by the registered employee or any payment in lieu of LSL to the employee.
The levy is calculated on an employee’s “ordinary pay”. Ordinary pay is essentially, the employee’s wage excluding overtime pay, reimbursements, payments for using employee’s own material, equipment and motor vehicle, allowances, amounts paid on cessation of employment, and superannuation contributions. Importantly, “ordinary pay” does include casual loading.
Given the changes to eligible employees and the penalties associated with failing to register / pay the levy, employers should consider whether employees are covered by one of the modern awards above.
If you’d like advice on whether the Scheme applies to you and your workforce, and how it interacts with long service leave entitlements generally, please do not hesitate to contact us.
On 1 September 2020, the Federal Government announced that the Jobkeeper Scheme, introduced by the Coronavirus Payments and Benefits Act 2020 would be extended until 28 March 2021. Previously Jobkeeper was set to end by 28 September 2020. It was also announced that the changes to the Fair Work Act 2009 (Cth) and other amendments which will impact organisations as a result of the COVID-19 pandemic would also be extended.
For a detailed outline on the JobKeeper Scheme and the Fair Work Act reforms, please refer to our earlier article here.
There are two extension periods, each with two payment rates which employers will need to be aware of:
Extension 1:
28 September 2020 to 3 January 2021
The rates of the Jobkeeper payment in this extension period are:
Tier 1: $1,200 per fortnight
Tier 2: $750 per fortnight
Extension 2:
4 January 2021 to 28 March 2021
Tier 1: $1,000 per fortnight
Tier 2: $650 per fortnight
This means that from 28 September 2020, the payment rates have changed for eligible employees.
Employers have until 31 October 2020 to meet the wage conditions for fortnights ending in October for all eligible employees.
Additionally, to remain eligible for Jobkeeper during Extension 1, employers will need to demonstrate to the ATO that it satisfies the decline in turnover for the September 2020 quarter (July, August, September) relative to a comparable period (i.e. July, August, September 2019).
Organisations that are already eligible for Jobkeeper will need to check their continuing eligibility from 1 October 2020. If organisations remain eligible they will be required to submit the relevant information to the ATO and then, between the 1st and 14th of each month, the organisation or registered tax or BAS agent will need to submit a monthly declaration to the ATO to receive reimbursements for payments made in the previous month.
The organisation also will need to select which payment tier it is claiming for each eligible employee or business participant by the first monthly business declaration in November.
Organisations that may not have previously qualified for Jobkeeper but which now meet the eligibility requirements, can sign up through the ATO’s online portal.
These organisation will need to satisfy the actual decline in turnover test after enrolment.
The actual turnover test:
For Extension 1: The actual decline in turnover test is satisfied when the current GST turnover for the quarter ending 30 September 2020 (the months of July, August and September) has declined by the specified shortfall percentage (15%, 30% or 50%) in comparison to the current GST turnover for the quarter ending 30 September 2019.
For Extension 2: The actual decline in turnover test is satisfied when the current GST turnover for the quarter ending 31 December 2020 (the months of October, November and December) has declined by the specified shortfall percentage (15%, 30% or 50%) in comparison to the current GST turnover for the quarter ending 31 December 2019.
If the quarter ending in 30 September 2019 or 31 December 2019 is not an appropriate comparison period, an organisation may be able to use an alternative test.
The stand down and workforce flexibility provisions in the Fair Work Act previously allowed an employer to direct an employee to:
As a result of the extension by the Federal Government, qualifying employers who are receiving Jobkeeper payments for their employees after 27 September 2020 or which now qualify for the Jobkeeper scheme can:
However, employers are no longer able to use the JobKeeper provisions to make agreements with their employees to take annual leave (including at half pay). Those provisions stopped applying from 28 September 2020 and any agreement that was made under the previous provisions ceases.
Organisations will need to follow the usual rules for taking and requesting annual leave (as set out in contracts, awards or industrial instruments) from 28 September 2020.
Any JobKeeper enabling directions or agreements to change an employee’s days or times of work already in place on 27 September 2020 keep applying after this date as long as the employer continues to qualify for the Scheme and the requirements to give a direction or make an agreement continue to be met. These agreements and directions can only be ceased when they are cancelled, withdrawn or replaced (including by a Fair Work Commission order), or on 29 March 2021 (whichever comes first).
Legacy employers are organisations which were previously receiving Jobkeeper but are now no longer eligible after 27 September 2020.
Provided that these organisation meet certain conditions, they may be able to continue using some of the stand down and workforce flexibility provisions in the Fair Work Act. However, any Jobkeeper enabling directions or agreements already in place ended on 27 September 2020 and organisations will need to reissue or make a new direction or agreement if they wish to extend beyond this date.
These conditions include:
More information about legacy employers and the rules they need to follow can be found here.
Moores is currently providing advice and support to many employers navigating the complex requirements of the JobKeeper Scheme. If you’d like to understand your rights, responsibilities and options in light of the Jobkeeper extension, please do not hesitate to contact us.
Retail leasing will change from 1 October 2020. With all of the leasing focus in recent months being on the Commercial Tenancy Relief Scheme, it would be easy to miss these changes.
But don’t miss them, they’re important.
The changes bring some much-needed clarity to one of the more contentious issues that arises in the retail leasing space – Essential Safety Measures.
Landlords can now recover Essential Safety Measures (ESM) costs from a tenant provided the lease makes the tenant liable to pay those expenses. ESM can include items such as smoke detectors, water sprinklers and other fire protection measures as well as the cost of the annual safety inspections.
This change will apply to all existing retail leases, as well as new ones entered from now on (but will not capture the cost of works payable before the commencement of the Act). This amendment changes the current ruling on recovery of ESM costs as set out in VCAT’s advisory opinion issued in May 2015.
The timeframe for the provision of the landlord’s disclosure statement will be increased to 14 days (formerly 7 days) prior to the commencement of the lease. For those landlords that fail to comply with this obligation, financial penalties have been introduced – up to 250 penalty units (that’s over $40,000) for a body corporate or 50 penalty units for an individual.
Where a lease contains an option to renew for a further term, a landlord must, at least three months before the deadline for exercising the option, give a notice containing the following information to a tenant:
The most beneficial change for tenants here being the requirement for landlords to provide early notification of the proposed new rent for the further term.
A new section 28A is introduced into the Retail Leases Act affecting leases that include a market rent review mechanism. The new section allows tenants to ask the landlord for an early market rent review – the request must be made within 28 days of receiving the landlord’s renewal notice (see above). The Act will operate to make sure the tenant always has at least 14 days to exercise the option after the market rent has been determined.
A retail tenant will now enjoy a cooling off period if the tenant has not requested an early rent review under section 28A (see above). The cooling off period will give a tenant 14 days from the date it exercises its option – within that period the tenant can serve written notice on the landlord stating that it no longer wishes to renew the lease.
Where a tenant has met its obligations under the lease, the tenant’s security deposit must be returned within 30 days of the end of the lease.
Both landlords (and their agents) and tenants need to be aware of the changes and the impacts they may have on their respective leases. If you are about to enter into new retail leasing arrangements or are concerned about how the changes may affect your current lease, Moores can assist you in navigating the new requirements. For more information, please do not hesitate to contact us.
Most of us are familiar with the concept of a Will being a testamentary act (a revocable disposition of property intended to take effect at death). On the face of it, a superannuation binding nomination also appears to be a document that disposes of property upon a person’s death.
Many Wills include the provision “I revoke all previous testamentary acts”. If a binding nomination was considered to be a testamentary act, then a later Will expressed to revoke all previous testamentary acts would seem to revoke that binding nomination.
However, recent cases considered by Australian Courts are determining that binding nominations are not testamentary documents and also that in some circumstances administrators and attorneys can make or revoke a binding nomination on behalf of a person.
The impact of these cases will have ramifications for a person’s estate planning in relation to:
There are statutory prohibitions on someone holding a power of attorney exercising particular powers such as making a Will (for example, section 26, Powers of Attorney Act 2014 (Vic)). If a binding nomination was considered to be a testamentary document like a Will, then it might be inferred that there are similar limitations on who can sign a binding nomination on behalf of a person.
In the recent case Re SB; Ex parte AC [2020] QSC 139, the Supreme Court of Queensland declared that the administrator of the represented person, could execute a binding nomination in relation to the represented person’s superannuation entitlements in the Perpetual Super Wrap Trust.
In considering the question of whether or not an administrator can sign a binding nomination, the Court noted that section 33(2) of the Guardianship and Administration Act 2000 (Qld) provided that unless the tribunal orders otherwise, an administrator is authorised to do “anything in relation to a financial matter” that the adult could have done if the adult had capacity …”. However, they noted that attending to financial matters did not extend an administrator or attorney’s authority to the making of a Will, which includes “a revocable disposition of property intended to take effect at death”.
In deciding that a binding nomination is a financial matter and not a revocable disposition of property intended to take effect at death, the Court said that the “nomination does not dispose of property but, by the exercise of a contractual right, directs the trustee how the death benefit should be dealt with”. In support of these conclusions, the Court relied on previous cases such as:
Whilst this decision seems to clarify the position in Queensland, and provide guidance across all States, we note that it is not binding outside of Queensland. In particular, the consideration of what constitutes a “financial matter” relied heavily on the definition in the Queensland Guardianship Act which is not included in powers of attorney acts in other jurisdictions.
What these cases also highlight is that powers in the superannuation fund deed and any express power or prohibition in the documents appointing the administrator or attorney will also be determinative in whether or not there is a power to make a binding nomination on behalf of a person. Superannuation fund deeds should be reviewed to ascertain who is authorised to make a binding nomination and careful consideration should be given as to whether an attorney should be given the power to make or revoke a binding nomination or expressly prohibited from doing so.
For more information or guidance about estate planning, including superannuation death benefits, please do not hesitate to contact us.
For many of us, the COVID-19 pandemic has created significant financial difficulties. Whether it be being in receipt of job keeper or seeker payments or the closure of international trade routes, it has had and will continue to have a lasting impact.
For many of our clients, their income and / or parenting arrangements have altered due to the pandemic which therefore affects their ability to pay child support. Particular issues may arise where parents have a Binding Child Support Agreement (“BCSA”) in place which have strict criteria surrounding termination.
To successfully set aside a BCSA, the Court must be satisfied that:
The Family Court recently considered this question in Martyn and Martyn [2020] FamCA 526 (“Martyn and Martyn”). The relevant factors are as follows:
A loss of reduction or income due to COVID-19 and whether this constitutes exceptional circumstances will be dependent on the facts and circumstances of each case.
If you have lost your job, your income has reduced or your business is suffering financial hardship, it is important you seek legal advice regarding your BCSA and in particular your obligation to continue to pay child support. For more information or guidance, please do not hesitate to contact us.
When a person believes they haven’t been adequately provided for by a loved one’s will, and makes a claim seeking more, the Court’s power to award them further provision from the estate is limited to what the person actually requires for their ‘proper maintenance and support’.
Accordingly, the need for a claimant to demonstrate ‘financial need’ is crucial to success in these claims, particularly where the claimant is an adult child, where the Court must also consider the degree to which that child can support themselves. This requires a close examination of the person’s financial situation, rather than mere speculation or assertion as to what their need may be.
For this reason, any person seeking family provision from an estate must provide sufficient evidence of their financial and personal circumstances in order to demonstrate ‘financial need’. The extent to which ‘financial need’ must be established is relative to each case and depends on a number of factors, not the least of which is the size of the estate and the competing needs of the beneficiaries.
The recent case of Re Janson; Gash v Ruzicka demonstrates the Court’s inability to award family provision from an estate on speculation of financial need alone.
In this case, the deceased’s daughter was unsuccessful at trial at obtaining further provision from her father’s estate, as she was unwilling or unable to provide evidence of her assets, liabilities and expenditure at trial, and therefore did not establish her financial need. This was despite the fact that it was clear that the daughter was not wealthy and it had already been conceded by the defendant that she had not been adequately provided for from the estate, meaning the only question before the Court was ‘how much’ she should receive.
Therefore, due to the defendant’s concession, the Court held off on dismissing the application altogether, and instead allowed the daughter another opportunity to file evidence of her financial need.
This case is a timely reminder that the onus of proof in family provision claims remains with the claimant and that unless a degree of financial need can be evidenced, it is unlikely that the claimant will succeed. It is insufficient for a person to simply assert financial need, without also providing information and documentation to evidence the extent of their need.
The Court’s discretionary power to amend a will is limited to the ability to award family provision for an eligible person’s ‘proper maintenance and support’. It does not extend to ensuring all children are treated equally, or compensating a person for past slights by the deceased.
If a willmaker excludes or makes limited provision for an immediate family member, whether they can bring a successful family provision claim against the willmaker’s estate will frequently turn on their own financial circumstances (and willingness to disclose these).
The lessons from Re Janson are useful for anyone seeking to bring or defend a claim for family provision, but also for anyone who is making their will and is worried about whether it might be challenged by a disgruntled family member.
Our expert team can assist you with your estate planning queries or strategic advice in relation to Will disputes including family provision claims. For more information or guidance, please do not hesitate to contact us.
Re Janson; Gash v Ruzicka: [2020] VSC 449
The Victorian Premier’s announcement of the COVID-19 Roadmap to Reopening was announced on 6 September 2020. A staged approach will apply to schools reopening, with each stage dependent on thresholds that apply to each step.
Whilst many students and staff are eager to return to on-site learning, the numbers of daily cases in Victoria will need to significantly drop in order for this to happen.
Below is a summary of the key elements of the roadmap related to education.
At this stage, the position is unclear for the format for which schools will teach year 10 students who are doing a VCE or VCAL program. If, for example, they are only doing 1 VCE subject, it would appear the current guidelines state they should return to full-time schooling. This will no doubt create logistical issues for teaching for non-VCE and VCAL students, who will still be learning remotely. Due to the lack of government direction dealing with this issue, further clarification may be provided prior to 12 October.
If no further clarification is provided by the government, schools will need to implement their own system for the year 10 curriculum. It may choose to:
The “third step” in the roadmap can start after 26 October when the daily average number of cases in the last 14 days is less than 5 statewide and there are less than 5 cases with an unknown source in the last 14 days statewide. This means:
The final stage, “COVID normal” involves no new cases across the state for two weeks. Melbourne will not move to this stage until this threshold is reached on or after 23 November.
Only once all the “COVID normal” thresholds are reached can there be a complete return to on-site learning.
If you would like any further assistance with your staged return to school, please do not hesitate to contact us.
From 6 – 12 September 2020, National Child Protection Week will celebrate its 30th year with the theme of “Putting children first”. It encourages all organisations, communities and individuals that work with children to consider how they can prioritise children and their safety. It goes to the heart of child safety strategies to create a child safe culture across the whole organisation and community. However, organisations often continue to struggle to put these ideals into practice. With competing priorities, how can organisations ensure children and their safety are put first?
Creating an organisational culture that puts children first involves setting child safety as a priority from the top and recognising the role that every person can play. Organisations need to do more than ‘set and forget’ policies and procedures.
The ten National Principles for Child Safe Organisations (National Principles) drawn from the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) recognises the need for a multi-faceted approach to child safety and are a good starting point for organisations. The National Principles are currently considered best practice but will soon become a legal requirement for organisations that work with children in certain states. For example, Victoria is committed to amending the seven Victorian Child Safe Standards to align with the National Principles and New South Wales is considering the National Principles in the development of its own Child Safe Standards.
Perhaps one of the most overlooked aspects of creating a child safe culture is the need to educate and empower children themselves. The Royal Commission found that organisations that failed to empower children created a greater risk of both the occurrence and length of time of child abuse.
Organisations need to involve the children that they work with in their child safe strategy. This will often test assumptions that the organisation may erroneously hold. A key example of this is the increased use of technology by children and the associated child safety risks. If organisations are not aware of how children are interacting online, how can they mitigate these risks?
Similarly, terms such as ‘child safety’ and ‘child protection’ are not commonly used by children. Without understanding what safety means to children and what makes them feel safe, an organisation will struggle to create a culture that fosters safety and wellbeing.
As a starting point, it is worth organisations asking these questions of the children they work with and testing their assumptions. Organisations should seek to understand what safety means for their children, where they feel safe / don’t feel safe and how they feel the organisation can keep them safe. Consulting with children and allowing them to feel heard is a safeguard in itself as empowered children who understand their rights or feel that they have a voice are less likely to suffer abuse and more likely to speak up if they do.
As National Child Protection Week kicks off, there is no better time for your organisation to review its strategies for putting children first. This is even more critical at a time when COVID-19 is having a profound impact on children and their safety and well-being. We are seeing record settlements for historical child abuse, such as a recent $1.5 million judgment in Victoria which shows an increased recognition by Courts of the impact of abuse.
Join Moores’ Practice Leader, Skye Rose and Lawyer, Rena Ou Yang next week for two webinars which will guide your organisation towards better child protection standards.
Both webinars will take place during National Child Protection Week, in partnership with Our Community. They will assist organisations in better understanding their child safety obligations and how to respond to reports of child-to-child abuse.
Click here to find out more and secure your spot.
For more information on child safety matters or for expert advice on any of the above, please do not hesitate to contact us.
Melbourne City Council candidates have announced a ‘new’ policy plan of giving rate relief to developments that incorporate a minimum portion of affordable housing. On its own, that seems like a good idea. And the proposed rate relief will hopefully motivate the construction of new affordable housing. But the concept of rate exemptions for affordable housing is not ‘new’. And existing laws are being ignored.
Many Councils are presently declining to give a rating exemption to affordable housing owned by registered housing providers – despite the fact that Victorian legislation appears to grant an exemption. There is no good reason for this position.
Section 154 of the Local Government Act 1989 deals with rate exemptions. It grants an exemption to land which is “used exclusively for charitable purposes”.
Clearly the provision of social and affordable housing is a charitable use of land. Every registered housing provider in Victoria is required to be a registered charity (most are tax-deductible Public Benevolent Institutions).
There is one category of housing that does not get the exemption under the Act – a house or flat on the land which is:
Most ordinary people will read this as a ‘carve out’ for a dwelling where at least one of the occupants is required to live in the residence in order to carry out employment duties. Examples might include a house used for drug rehabilitation which includes a ‘lead tenant’ employee; a Specialist Disability Accommodation which includes a live-in carer. It seems anomalous to exclude these types of arrangements from the charitable exemption.
But the Act does not exclude social and affordable housing from a rate exemption. In fact, the Act gives a rate exemption to affordable housing. Many Councils are simply ignoring the Act. If Councils want to give a boost to affordable housing, they could grant the rate exemption and they could do it today.
Giving effect to existing laws by granting rate exemptions would free up millions of dollars in the housing sector, which could be used to generate more housing. Housing solves homelessness.
Our team has deep expertise in the social housing sector. We provide peak industry bodies and a large number of social housing clients with expert legal advice. For more information, please do not hesitate to contact us.
Moores’ Elder Financial Abuse lawyer, Jessica Latimer has been crowned Winner of the ‘Special Counsel of the Year’ Award at the Australian Law Awards 2020.
Jessica joined Moores in 2018 to establish one of Australia’s only dedicated elder financial abuse and elder law practices. We are so proud that Jessica’s innovation, passion and dedication has been recognised and awarded as the winner of the ‘Special Counsel of the Year’ Award.
As a passionate industry leader, Jessica applies her commercial litigation skills and her understanding of elder law to achieve outcomes for often distressed older clients who have lost property or funds as a result of elder financial abuse.
Find out more about Jessica’s practice here or for more information, please do not hesitate to contact us.