The Workplace Relations landscape is ever changing. In this article we summarise three cases regarding redundancy and employee transfers between entities that were decided in 2024 that employers need to know about.

Redeployment obligations in redundancy: How far do they go?

In Helensburgh Coal Pty Ltd v Bartley & Ors¹, a Full Court of the Federal Court of Australia found the termination of 22 employees by way of redundancy was not a genuine redundancy because Helensburgh Coal (HC) could have redeployed those employees to perform work performed by independent contractors.

HC operates a mine extracting coking coal. In 2018 and 2019, it engaged two companies to supply workers to perform a range of services. Early in the COVID-19 pandemic, demand for coking coal fell significantly and HC told its employees that it had decided to implement changes to its operations which would result in a reduction to its workforce.

During consultation, the employees requested HC to mitigate against its decision by decreasing its reliance on contractors. While HC did reduce its contractor workforce by 40%, it proceeded to terminate 47 employees by way of forced redundancy. Twenty two of those employees brought unfair dismissal claims in the Fair Work Commission, claiming the dismissals were not ‘genuine redundancies’. Commissioner Riordan found in two decisions that the dismissals were not a ‘genuine redundancy’ because it was reasonable for HC to reduce the work available to contractors and redeploy the affected employees to perform that work. HC unsuccessfully appealed both those decisions to a Full Bench of the Fair Work Commission and then sought judicial review in the Federal Court.

Under the Fair Work Act, a redundancy will not be ‘genuine’ if it ‘would have been reasonable in all the circumstances for the person to be redeployed within its enterprise’. The Federal Court dismissed HC’s application, finding:

• ‘would have been reasonable’ requires some analysis of what an employer could have done to redeploy an otherwise redundant employee;
• ‘all of the circumstances’ may capture the possibility of an employer making work available to an otherwise redundant employee by reducing the engagement of other providers;
• it was reasonable in all the circumstances for HC to redeploy the impacted employees to positions occupied by contractors.

Key takeaways

Employers must therefore consider all redeployment opportunities, including to positions that may not technically be ‘available’ at the time of consideration, or risk a redundancy being found to be not ‘genuine’. This includes those held by independent contractors or a labour hire employee. It would be prudent to consider whether any of those positions will become available in the future.

At the time of writing this article, Helensburgh Coal has received special leave to appeal the judgment to the High Court of Australia.

It’s all about the ‘feel’? When is other employment ‘acceptable’ in a redundancy?

In Westpac Banking Corporation T/A Westpac², Westpac successfully applied to the Fair Work Commission to vary the redundancy pay payable to an employee, Ms Dibden, from 7 weeks’ pay to zero.

Westpac’s application was made on the basis that it obtained ‘other acceptable employment’ for Ms Dibden, who was employed as a Senior Customer Service Specialist at a St George Bank branch in Cairns.

Following Westpac’s decision to close the branch Ms Dibden worked in, it offered her what it said was a ‘directly comparable’ position of Personal Banking Specialist (PBS) at a Westpac branch in Cairns. Ms Dibden advised she was not interested in a branch-based position and preferred another position. She asserted the PBS position was different to her customer service position. Westpac’s position was that the duties and responsibilities were the same. In late July 2024, Ms Dibden’s employment was terminated on the basis that she rejected the PBS position.

Under the FW Act, an employer may apply to the Fair Work Commission for a determination reducing the redundancy pay payable to an employee to a specified amount, which could be zero, in the following circumstances:

• where the employer obtains other acceptable employment for the employee; or
• the employer cannot pay the amount.

In the Fair Work Commission, Ms Dibden submitted that a Westpac branch had a ‘different culture and working environment’ than a St George one. Ms Dibden’s main contention, somewhat unusually, was that the positions were not acceptable because working in a St George branch ‘felt different’ than working for Westpac. In coming to the decision to exercise her discretion to reduce the redundancy pay to zero, Commissioner Hunt noted:

• Ms Dibden’s assessment of the similarity of the positions was not relevant;
• the redundant position and the alternative position do not have to be identical for the latter to be found ‘acceptable’;
• she was satisfied the conditions and entitlements were identical, the two branches were extremely close, the position descriptions and pay grades were the same;
• Ms Dibden had not worked in a Westpac branch and would not know how it feels;
• Westpac had discussed the PBS position with Ms Dibden over two months;
• it was appropriate for Westpac to contend the PBS position was suitable; and
• prior to Ms Dibden’s decision to decline the PBS position, Westpac had put her on notice that it would make an application to the Commission to reduce her redundancy payment to zero on the basis that it had obtained other acceptable employment for her.

Key takeaways

This case is a timely reminder to employers that:

• the Commission will apply an objective test when assessing whether the other employment is ‘acceptable’. That is, the personal views or preferences of the individual employee do not determine if a role is ‘acceptable’ or not;
• they should meet their consultation obligations and reasonably engage with an employee about the employment they have obtained;
• while positions do not have to be identical, they should carefully assess positions against each other when coming to a view about whether the new position is ‘acceptable’; and
• if they intend to make an application to the Commission to vary redundancy pay, it would be prudent to put the employee on notice of this at the earliest available opportunity.

‘No deal’ in employee transfer to new entity results in $42,000 compensation order

In Dupre v Excell Protective Group Pty Ltd³, the Fair Work Commission found Mr Dupre was dismissed by Excell and that the dismissal was harsh, unjust and unreasonable. Excell was ordered to pay Mr Dupre $42,552.06.

Mr Dupre began employment with Excell in 2015 pursuant to a contract of employment. Due to issues with licensing of Excell’s business, it did not trade between June 2015 and July 2017. During that time Mr Dupre was paid by a different entity, SPS Security Service PL. SPS Security was not an associated entity of Excell. Excell began paying Mr Dupre in July 2017.

In March 2024, it was announced that Excell’s management team would be transferred to another company, Zipd. Mr Dupre received a new employment contract, position description and non-disclosure agreement for the transfer to Zipd. Mr Dupre raised a number of concerns about the proposed contract. The next day he was invited to a formal performance review meeting despite having not had any performance issues to date.

Approximately three weeks later, Mr Dupre attended a meeting with a number of his colleagues in which they were advised that if they did not sign the new employment contracts, this would be treated as a resignation, bringing their employment to an end. He did not sign the contract. On 11 April 2024 Mr Dupre attended a further meeting with management and advised he would not sign the contract without amendments and he would not resign. By the end of the meeting, he understood he had been dismissed by Excell.

On 17 April 2024 he received an email from Excell advising its position that he had resigned on 11 April 2024. On 19 April 2024 Mr Dupre responded clarifying he had not resigned and that he wanted to remain employed under his initial contract of employment. He requested Excell confirm that he would do so by 22 April 2024. After he did not receive a response, Mr Dupre confirmed in writing on 23 April 2024 that Excell had repudiated the contract and the employment relationship, and as a result he had been dismissed by Excell.

Deputy President Masson ultimately found Mr Dupre had been dismissed by Excell and he did not resign, there was no valid reason for the dismissal and the dismissal was procedurally unfair.

Key takeaways

Employers should:

• determine if they have consultation obligations under any industrial instrument that they must comply with when proposing to transfer employees between entities;
• be aware that they cannot force an employee to sign a new employment contract;
• be open to discussing concerns raised by an employee; and
• seek legal advice if they are considering taking any action against an employee who will not sign a new employment contract, as doing so may come with considerable risk.

Closing Loopholes

Who could forget the suite of changes that came into effect in 2024 under the Closing Loopholes reforms? Read our articles below to get up to date on those reforms:

• Significant workplace relations reforms commence: key changes employers need to know
• Fair Work Act changes effective 26 August 2024

How we can help?

Our Workplace Relations team can provide employers with practical advice and guidance on how to manage redundancies having regard to Helensburgh Coal and where other acceptable employment has been obtained for the employee. The team is well placed to advise on proposed terminations so employers can mitigate the risk of successful claims and compensation orders.

Contact us

Please contact us for more detailed and tailored help.

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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. [2024] FCAFC 45. ↩︎
2. [2024] FWC 3113. ↩︎
3. [2024] FWC 2313. ↩︎

A recent Supreme Court of Victoria decision has changed the game for retail tenancies.

In ALDI Foods Pty Ltd v Northcote Shopping Centre Pty Ltd [2024], the Court held that rent review caps in retail leases are not prohibited under the Retail Leases Act 2003 (Vic), effectively overturning a long history of VCAT decisions indicating that such caps were void.  This decision supports tenants, and will provide them with increased financial security when leasing a retail space.

Background

This case concerned a retail lease agreement between ALDI Foods (tenant) and Northcote Shopping Centre (landlord). The main issue was whether the lease agreement permitted a cap on the rent review process.

In retail leases, rent is typically reviewed periodically to adjust for inflation or market conditions. The standard review mechanisms are:

• market rent (i.e. the rent a property might command if leased on the open market);
• fixed review (eg.3% increases); or
• Consumer Price Index (CPI).

The inclusion of caps or limits on how much rent can increase during these reviews however, has often been a contentious issue in retail leasing due to section 35(2) of the Act, which states that for leases covered by the Act, “The basis or formula on which a rent review is to be made must be one of the following” [emphasis added], and then lists five defined options, including the methods identified above.

The inclusion of the word “one” in section 35(2) has generally been interpreted as having the effect of prohibiting caps on rent reviews, because the cap constitutes a second method of review.

The parties and their arguments

In this case, the lease included a provision that placed a 6% cap on CPI reviews. Northcote Shopping Centre argued that this provision was void, on the basis that the cap was not permitted under section 35(2) of the Act. Northcote Shopping Centre sought to rely on previous VCAT decisions to support their arguments.

ALDI’s position was that the cap was valid, since the Act does not expressly prohibit rental caps. In support of this, ALDI argued that since section 35(3) of the Act expressly prohibits ratchet clauses (i.e. clauses that prevent rent from decreasing during a market rent review), this would indicate that the legislators intended for caps or limits to be permitted.

Verdict

The court ruled in favour of ALDI, holding that the rent review cap included in the lease was enforceable and a valid clause. The court took the view that rental caps were consistent with retail leasing legislation, going against previous VCAT decisions.

What does this mean for landlords and tenants?

Retail tenants have an opportunity for increased financial certainty following this ruling, being in a strong legal position when and if they decide to negotiate capped increases on their rent. With business expenses rising in many industries, the decision presents an opportunity for retail tenants to better plan for the future.

Landlords should consider how this case may impact future negotiations around rent review processes. Landlords can expect caps to become a regular request from retail tenants, and will need to make a commercial decision in each case whether to agree to the inclusion of a cap to attract and retain long-term tenants.

How we can help

Moores’ Commercial Real Estate team is ready to assist with all your retail and commercial leasing needs, including expert advice on your rights around rent reviews, lease renewals, and other key leasing matters. Please contact a member of our leasing team if you would like guidance or support in this area, from strategic advice through to preparation of lease documentation.

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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.

Sam Kerr, captain of the Australian Women’s Soccer team, has been found not guilty of racially aggravated harassment of a London Metropolitan police officer after calling him “stupid” and “white”. Despite the acquittal, this case has drawn significant attention to whether seemingly unfavourable treatment towards white people can constitute racism and how similar incidents would be handled in Australia.

Background

On 30 January 2023, Sam Kerr and her partner hailed a taxi to take them home after a night out. Both women were allegedly drunk and during that cab ride, Ms Kerr was sick in the taxi. The driver then locked the doors and windows and drove them to the nearest police station on advice of police but without informing the women. Ms Kerr and her partner told the court they feared they were being taken hostage, and shortly before arriving Ms Kerr’s partner smashed one of the taxi windows in an attempt to escape.

Police body camera footage showed police requesting the pair to pay for the damaged window and fare and cleaning fee. During the recorded conversation, Ms Kerr called the officers “f***ing stupid and white”.

The prosecution argued that Ms Kerr’s comments were a deliberate attempt to harm the police officer, were racially motivated and that the police officer felt “humiliated”, “shocked” and “belittled”.

Ms Kerr did not deny calling the police officer “stupid’ or “white”, but told the court she was trying to make a comment about “power” and “privilege” and believed that the officers were treating her differently because of her skin colour on the night of the incident. Ms Kerr is of Indian descent.

The jury unanimously found Ms Kerr not guilty of the charge.

“Reverse racism” – fact or fiction?

While Ms Kerr has been found not guilty of racially aggravated harassment rather than discrimination, her case has prompted widespread conversation about the myth or existence of “reverse racism”, and whether racism or racial discrimination against white people is permissible under legislation or more socially acceptable.

“Reverse racism” is sometimes used to describe situations where white people believe they are discriminated against or negatively stereotyped because of their whiteness or treated less favourably than people of colour. It is an idea focused on prejudiced attitudes towards a certain racial group or groups, or unequal treatment – namely, discrimination. But it overlooks that power is one of racism’s central indicators.

The Oxford English Dictionary defines racism as “prejudice, discrimination, or antagonism directed against someone of a different race based on the belief that one’s own race is superior.” According to Mario Peucker, Associate Professor and Principal Research Fellow at Victoria University, the concept of “reverse racism” doesn’t work because racism is more than just prejudice. Prejudice and discrimination are inextricably linked with historically entrenched and institutionalised forms of systemic racism and racial hierarchies, injustices and power imbalance¹.

Racial discrimination and harassment protections in Australia

State and federal anti-discrimination laws prohibit discrimination and harassment on the grounds of certain protected attributes in certain areas of public life, and in public with respect to vilification. The Racial Discrimination Act 1975 (Cth) (RDA) broadly prohibits discrimination on the basis of race, colour, descent, national or ethnic origin, as well as acts of racial hatred. Acts of racial hatred include public acts that are reasonably likely to offend, insult, humiliate or intimidate a person or group because of their race, colour, or national or ethnic origin. Similar protections exist under state and territory anti-discrimination laws. In Victoria, reforms have been proposed to strengthen anti-vilification laws, which are currently limited to protection from “behaviour that incites hatred, serious contempt, revulsion or severe ridicule for a person or group of people, because of their race or religion”.

White people can be called derogatory names that reference their whiteness. Given this, whiteness may technically be protected from anti-discrimination and anti-vilification laws, and it may be possible for a white person to face discrimination or vilification by people of colour on the basis of their whiteness.

However, while white people may be covered by protections against racial hatred or vilification, there is still a requirement to establish that the alleged conduct was reasonably likely to offend, insult, humiliate or intimidate the complainant. In circumstances where whiteness has existed as the dominant race in Australia and positions of leadership and authority continue to be dominated by white people, this aspect of the legislation is likely to be extremely difficult to substantiate.

Further, there are exceptions under the RDA and state anti-discrimination laws that make otherwise discriminatory conduct lawful, in particular, special measures. Special measures are lawful discriminatory acts aimed at reducing historically entrenched, intergenerational and systemic inequalities. Affirmative action programs are direct responses to structural inequality and an attempt to level the playing field. Positive racial discrimination is based on amelioration, not racial superiority. According to Peucker, regardless of whether positive or affirmative action is lawful or not, the term racism or “reverse racism” would not apply.

While the limits of protection from racial harassment, discrimination and vilification have not been comprehensively tested in Australia’s current social climate, Ms Kerr’s case demonstrates that such claims need to be considered in the context of social, cultural and historical factors that shape individual experiences and responses, not just the letter of the law.

In Ms Kerr’s case, the words were said in the context of:

• Ms Kerr’s experiences as a person of Indian descent;
• evidence that the London Metropolitan Police were institutionally racist, misogynistic and homophobic, and the historical role police have had in UK to use public order offences in discriminatory ways to target particular groups within society; and
• the ways in which race intersects with gender when understanding actual or perceived instances of gender-related harm.

In both the UK and Australia, legal claims do not exist within a vacuum and as shown in Ms Kerr’s case, these sociopolitical factors can be pivotal in determining the outcome of the case.

Key takeaways

• In the broader context of discussions about diversity, equity and inclusion, it is important for organisations to have a clear approach to managing complaints raised by staff, students, service users or other members of the community.
• In the current political climate with diversity, equity and inclusion initiatives being rolled back in the US, Ms Kerr’s case may act as a catalyst for groups with power (such as white people, men, and non-disabled individuals) to push for the erosion of protections afforded to groups that have been traditionally marginalised, including special measures.
• Organisations should establish clear standards for the conduct and behaviour of staff, students, volunteers and other service users, which prioritise safety, respect and inclusion for all groups, including those that form the majority within your organisation and community.
• While it may be reasonable to set clear expectations for conduct and behaviour, Ms Kerr’s case demonstrates that organisations need to be cognisant of the additional social, structural and intersectional factors that may shape individual experiences and responses. In this case, Ms Kerr’s experience was shaped by her gender and skin colour. It is important for organisations to be responsive to intersectionality when responding to incidents.
• Recognising these intersecting factors may prompt organisations to consider implementing special measures to offset disadvantage or inequity experienced by certain groups in the context of employment, education or access to goods and services. However, any potential strategies should be carefully considered in the context of relevant discrimination laws.

How we can help

Our Safeguarding and Discrimination Team has extensive experience supporting organisations to create safe and inclusive environments for all individuals, as well as navigating complaints and disputes if they arise. We can assist with tailored advice on your discrimination and safeguarding obligations to diverse groups, as well as development and delivery of policies and training to proactively address these issues.

Contact Us

Please contact us for more detailed and tailored help.

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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. Mario Peucker,” What is ‘reverse racism’ – and what’s wrong with the term?”, The Conversation, 12 July 2023, What is ‘reverse racism’ – and what’s wrong with the term? ↩︎

Many of us understand the importance of having a Will in place to distribute our assets when we die.

But what happens if we lose the ability to make our own decisions for financial, personal and medical matters?

A Will only comes into effect when you die, so it is equally important to also have documents in place authorising a person or persons to make decisions for you if you are unable to make them for yourself during your lifetime.  This is where Enduring Powers of Attorney and Appointments of Medical Treatment Decision Makers fill that gap.

What are Enduring Powers of Attorney?

In Victoria, there are three types of powers of attorney which you can put in place.

Enduring Power of Attorney (Financial)

In this document, you can appoint one or more people to deal with your financial matters on your behalf. Financial matters can include dealing with banks and investment companies, buying and selling assets, paying bills and buying and selling property. You can choose when your attorney’s power commences to provide greater flexibility for yourself and your attorneys. For example, if you are overseas, you can instruct your attorney to act on your behalf while you are out of the country.

Enduring Power of Attorney (Personal)

In this document, you can appoint one or more people to deal with personal matters on your behalf. Personal matters can include deciding where you live (i.e. whether you move into aged care), how you dress, what you eat, when you get a haircut and who you associate with. Given these matters are very personal in nature, your attorney’s power generally only commences if you were to lose capacity, as evidenced by a letter from a medical practitioner.

Appointment of Medical Treatment Decision Makers

Although medical decisions are also personal in nature, this document differs from the Enduring Power of Attorney (Personal) because it only deals with consenting or withholding consent to medical decisions.

In this document, you can only appoint one person at a time (not jointly) to make medical decisions on your behalf. Your medical decision maker, by law, is required to make decisions that they would reasonably believe is a decision that you would have made if you had capacity.

To ensure that your medical decision makers know your preferences, you can complete a document called an Advanced Care Directive. This assists your chosen medical decision makers to make a medical decision for you based on your beliefs and values. You can elevate it from a values directive to a binding directive in which you specify what medical procedures you consent to or what you withhold consent to.  Binding directives require witnessing by a doctor. 

Isn’t my next of kin automatically entitled to make decisions for me?

For financial and personal matters, this is not the case.

Although it may seem practical that, for example, your spouse, or your adult child can automatically sign off on financial and personal decisions for you (as long as they provide medical evidence of your lack of capacity), the law in Victoria prevents next of kin from making those decisions without being validly appointed.

However, for medical matters, yes, the law in Victoria does allow next of kin to make medical decisions for you.

There is a set hierarchy of people in your life who have legal final say on your medical treatment, if you cannot give the doctor your decision yourself. This set hierarchy is only applicable if you do not have a valid Appointment of Medical Treatment Decision Maker document in place.

The Medical Treatment Planning and Decisions Act 2016 (Vic) at section 55 (3) provides the following order of medical treatment decision makers:

1. Spouse/domestic partner;
2. Primary carer;
3. Your adult child (and if more than one, the eldest);
4. Your parent (and if more than one, the eldest); and
5. Your adult sibling (and if more than one, the eldest).

Although the law states that the people listed above are to be in a close and continuous relationship with you, in some cases, the prescribed hierarchy of medical decision makers may not be suitable in your circumstances. This is a strong reason for you to consider putting in place your own hierarchy via an Appointment of Medical Treatment Decision Maker document.

What happens if I do not have Enduring Powers of Attorney in place?

If you lose capacity without Enduring Powers of Attorney for financial and personal matters in place, a person may make an application to the Victorian Civil and Administrative Tribunal (VCAT) to become an administrator (who deals with financial matters) and/or a guardian (who deals with personal matters).

Under the Guardianship & Administration Act 2019 (Vic) section 32, VCAT can appoint an administrator or guardian who is:

• Over the age of 18;
• Someone who VCAT is satisfied will act in accordance with the duties imposed at law on an administrator and guardian;
• Not in a position of conflicting interests with you;
• Is a “suitable person” to act for you; and
• For administrative matters, has sufficient expertise to make decisions about your financial matters.

When considering whether someone is a suitable person to act for you, VCAT must take into consideration the following:

• Your will and preference, as far as they can be ascertained;
• Preserving any existing relationships that you have which are important to you;
• Desirability of appointing a relative of yours, or someone who has a personal relationship with you, rather that someone who you do not have such relationship with; and
• Whether the proposed administrator/guardian will be available and able to meet and communicate with you.

If VCAT deems that there is nobody appropriate in your life to fulfil the role of guardian or administrator, they can appoint the Office of the Public Advocate as your guardian, and State Trustees Limited or a private trustee company as your administrator.

The process a family member or friend is required to go through in order to be appointed as your guardian or administrator can be time consuming, stressful and even costly, and ultimately, VCAT has the final say on who is appointed. This is why it is important to have Enduring Powers of Attorney in place while you have capacity, so you have peace of mind knowing that you have made the decision as to who looks after your affairs, yourself. 

How we can help

The Wills, Estate Planning and Structuring team at Moores is one of the largest in Australia and can assist you in preparing your Will and Enduring Powers of Attorney to ensure that your assets are not only looked after in the event of your death, but in the event of your incapacity to make decisions.

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Marriage and divorce are significant life events that can have important implications for estate planning.

Fundamentally, a Will remains in force until it is revoked. This is most often done by the execution of a new Will to replace a pre-existing one.

But did you know, marriage or divorce can also affect the validity of a Will? 

What is the effect of marriage on a Will?

In Victoria, any Will created before the marriage will be automatically revoked when a person marries. Certain clauses of the Will which may continue to have effect notwithstanding – for example, gifts for a spouse or appoints a spouse to certain roles such as executor. However, the rest of the Will including any provisions made to other people will generally cease to have effect, leaving them out of the estate distribution altogether.

The incorporation of a “contemplation of marriage” clause can help avoid this automatic revocation issue. The contemplation is generally understood to mean that the Willmaker expects or intends to marry. The effect of this clause is to ensure that the Will continues to have operative effect even after the solemnisation of the marriage.

If a person marries without preparing a new Will or there is no contemplation of marriage clause contained in the pre-existing Will and they then pass away, the deceased’s estate will be distributed according to the laws of intestacy in Victoria.  

Additionally, a person entering into de facto relationships should note that these relationships do not automatically revoke a will. However, a de facto partner in Victoria may still have legal claims to the estate under family provision laws.

What is the effect of divorce on a Will?

Divorce also affects Wills in Victoria, but it does not revoke them in the same way as a marriage.

Under Section 14 of the Wills Act 1997 (Vic):

• any gifts made to the divorced spouse in the will are revoked;
• any appointments of the divorced spouse as executor, trustee or guardian are revoked, other than the appointment of the divorced spouse as trustee of property left upon trust for children of the spouse; and
• the rest of the Will remains valid unless otherwise specified.

In other words, if a person has a pre-existing Will that leaves assets to their spouse and later gets divorced, the provisions benefitting the former spouse are automatically revoked but the rest of the Will remains in effect.

However, if that is not the Willmaker’s intention, then careful drafting of the Will is required to ensure that the former spouse is not inadvertently excluded from benefiting from the deceased’s estate.

Importantly, legal separation does not have the same effect on the Will. Until a divorce is legally finalised, the Will remains valid, meaning that a separated spouse may still inherit under a Will. This highlights the importance of updating a Will immediately after separation to reflect new intentions.

Marriage and divorce have significant legal consequences on Wills. Marriage generally revokes a Will unless it was made in contemplation of marriage, while divorce revokes specific provisions benefiting the former spouse but does not invalidate the entire Will. 

Given these automatic legal effects, individuals should review and update their estate planning whenever their marital status changes. Failing to do so can lead to unintended outcomes and the potential for disputes among surviving family members.

How we can help

The Wills, Estate Planning and Structuring team at Moores is one of the largest in Australia and can assist you in preparing your Will to ensure that your assets do not end up somewhere unexpected.

Contact us

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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.}

Are you an attorney or administrator tasked with selling a principal’s family home to fund their aged care, but facing challenges from a co-occupant claiming rights as a ‘protected person’?

This guide is designed to help you grasp the fundamental aspects and successfully navigate the complexities of this situation with confidence.

1. Understanding the Basics

As an enduring power of attorney or administrator, you may need to sell the family home to cover the principal’s aged care refundable accommodation deposit. However, this process can be complicated if someone is living in the home, such as a spouse, child, or carer.

2. Protected Persons and Exempt Assets

A property is not considered an asset for aged care assessment if it is occupied by a ‘protected person’. It’s crucial to determine if an individual qualifies as a protected person, as this affects how the family home is assessed. If a protected person resides in the property, the home is considered an ‘exempt asset’ for aged care purposes. This is different to the rules that apply to considering pension eligibility.

3. Key Distinction: Protected Person vs. Right to Stay

While a protected person status means the home is excluded from aged care assessment, it does not grant an inalienable right to stay in the property and prevent its sale. This distinction is critical for attorneys and administrators to understand.

While in many instances family members are cohabiting so one or more can provide the others with care and support, in other cases they can be arrangements of convenience, or exploitive.

Our elder financial abuse team too often sees adult children trying to rely on their asserted status as a protected person to justify staying in the family home and continuing the rent-free lifestyle they have become accustomed to without any history of providing care, even when doing so is financially damaging to their parent/s.

4. What is an Exempt Asset?

An exempt asset is disregarded for aged care assessment, meaning the principal’s aged care costs would be lower as they are assessed as a ‘non-homeowner’. The home care assessment is different from tests that apply to pension eligibility.

5. Who is a Protected Person?

A protected person can be:

• A partner or dependent child of the principal.
• A carer eligible for an Australian Government income support payment who has lived in the home with the principal for at least two years.
• A close relative eligible for an Australian Government income support payment who has lived in the home with the principal for at least five years.

A protected person can remain in the property indefinitely, and while they do, the home remains an exempt asset. They typically need to complete forms with Centrelink to confirm their status.

6. No Protected Person in the Home?

If there is no protected person in the home, it becomes an assessable asset for aged care purposes up to the home exemption cap, which is $197,735 as of January 1, 2024. This means the principal may face significantly higher aged care fees unless the property is worth less than the cap.

7. Selling the Family Home with a Co-Occupant

If a non-protected person is co-occupying the property, selling the home depends on various factors, including any asserted rights to remain (e.g., equitable rights). Selling the home may attract scrutiny, so obtaining legal advice is prudent. Attorneys or administrators can seek advice from VCAT to protect themselves from liability if the decision is disputed.

8. Enforcing the Sale

If you are an administrator or attorney and issues arise removing a family member from a property, there are a range of legal options, including commence legal proceedings to recover possession and force an eviction. It is important to get legal advice before making a demand to vacate or commencing court proceedings.

9. How Moores Can Help

At Moores, we specialise in Powers of Attorney, guardianship, administration, and applications in VCAT and the Supreme Court of Victoria, including elder financial abuse issues. We are here to discuss any actions regarding the status of a protected person and the sale of the family home to fund a refundable accommodation deposit or other expenses.

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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.}

_{Content warning: This article contains information in relation to sexual assault and child abuse. If you or someone you know require support, we encourage you to contact Lifeline on 13 11 14 or 1800 Respect.}

A judgment recently handed down by the High Court of Australia has clarified the extent to which institutions will be vicariously liable for the historical sexual abuse and/or criminal conduct of its members.

In Bird v DP (a pseudonym) [2024] HCA 41, the High Court unanimously held that vicarious liability cannot be imposed without an employer/employee relationship. This means that institutions will not be vicariously liable for the historical and/or criminal conduct of its members where they are not strictly engaged as employees, including those engaged as independent contractors, volunteers or relationships ‘akin to employment’.

Background of the case

In this case, DP (a pseudonym) was assaulted and sexually abused on two separate occasions by Father Bryan Coffey (now deceased) (“Coffey”), a priest from DP’s local church. In 2020, DP commenced proceedings claiming damages for psychological injuries he had suffered as a result of Coffey’s abuse. DP alleged the Roman Catholic Diocese of Ballarat (“Diocese”) was vicariously liable for Coffey’s conduct.

At first instance, a single judge of the Supreme Court of Victoria found the Diocese was vicariously liable for Coffey’s conduct, even though that judge also found that Coffey was not an employee of the Diocese. The Diocese then appealed to the Supreme Court of Victoria Court of Appeal, which unanimously dismissed that appeal. The Diocese then applied to the High Court for special leave to appeal, which was granted.

At common law, generally, an employer can be vicariously liable for the wrongful acts or omissions of its employees in the course or scope of employment. This is based on the principle that employers knowingly accept the risks of hiring employees, including the possibility that employees might cause injury or damage to others while performing their job. However, employers are not always vicariously liable for the actions or inactions of its employees – there must be a sufficient connection between the wrongful act and the employment.

What was the issue?

The central issue before the High Court was whether the principle of vicarious liability could or should be extended to the relationship between Coffey and the Diocese, which was not an employment relationship. To put it another way, the High Court had to consider whether in the absence of an employment relationship, a Diocese or Bishop could be vicariously liable for the unlawful conduct of a priest.

Vicarious Liability

A majority of the High Court held that vicarious liability cannot be imposed without an employer/employee relationship. As there was no employment relationship between the Diocese and Coffey, the Diocese could not be liable for Coffey’s sexual abuse.

On the question of whether it should expand the boundaries of vicarious liability to include independent contractors or relationships ‘akin to employment’, the majority answered firmly in the negative. Although the High Court acknowledged the harshness of requiring an employment relationship for vicarious liability, it reasoned that expanding this requirement would create uncertainty and indeterminacy for the following reasons:

• The ‘akin to employment’ test has led to results overseas which have expanded liability to relationships which previously would not have been understood to involve one party being liable for another’s wrongs;¹ and
• It would further complicate the already fraught distinction between employees and independent contractors.²

In light of these reasons, the High Court found that the requirement for an employment relationship in vicarious liability should remain and that any reformulation of the law in this area is a matter for parliament.

Agency

The majority also examined whether the Diocese was liable for Coffey’s acts on the basis of agency. However, as the unlawful acts committed by Coffey were not done with the Diocese’s or the then Bishop’s express, implied or apparent authorisation, the majority reasoned that Coffey could not be a ‘true agent’ of the Diocese.

“Non-Delegable Duty of Care”

Separately, DP also asked the High Court to rule on whether the Diocese owed a non-delegable duty of care to DP to protect him from the risk of sexual abuse by its priests, including Coffey. As the issue was not pleaded at first instance, or on appeal to the Victorian Supreme Court, the High Court declined to rule on this issue.

However, Jagot J (in obiter) observed that a personal or non-delegable duty of care may arise where the provision of care, supervision or control is required to be exercised by the defendant for the safety of the plaintiff in circumstances where the plaintiff would reasonably expect the exercise of due care for their safety. With the path to vicarious liability now requiring a strict employment relationship, it may be that claimants increasingly focus on negligence claims based on non-delegable duties of care, as these claims don’t always require an employment relationship to be established.

There also remains various statutory duties which impose liability for child abuse. For example, in Victoria, there is a duty on “relevant organisations” to take reasonable care to “prevent the abuse of a child by an individual associated with the relevant organisation while the child is under the care, supervision or authority of the relevant organisation.” An individual associated with a relevant organisation includes a minister of religion, a religious leader, an officer or a member of the personnel of the religious organisation.³

What does this mean for employers?

While common law and statutory duties of care remain, the High Court has made it clear that organisations will not be vicariously liable for the actions of their independent contractors or volunteers.

Although Bird v DP will the ability of victim survivors to obtain compensation for abuse perpetuated by people who were not employees through vicarious liability, individuals may still be liable for civil and criminal offences for failing to report child abuse.

It is unclear whether the decision will prompt calls for legislative change regarding the expansion of vicarious liability to include volunteers and independent contractors.⁴

How we can help?

Our Workplace Relations team can assist with managing risks associated with engaging and managing your workforce, including volunteers and other types of relationships. Our Safeguarding team can help organisations design and implement frameworks to prevent and respond to child abuse, and train your people on preventing and responding to child abuse and harm.

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

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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.}

1. The Majority cited Cox v Minister of Justice (Where a prison service was vicariously liable for injuries caused to a prison catering manager by the negligence of a prisoner) and Armes v Nottinghamshire County Council (where a local council was vicariously liable for physical and sexual abuse allegedly carried out by foster parents) as examples of where the principle may have been overextended. ↩︎
2. Bird v DP (a pseudonym) [2024] HCA 41 66. ↩︎
3. Wrongs Act 1958 (Vic), ss 90(1)(b), 91(2). ↩︎
4. The Civil Liability Act 2002 (NSW) has expanded the definition of ‘employee’ for the purposes of statutory vicarious liability under that Act. ↩︎

A long-awaited measure to allow superannuation members drawing legacy pensions to exit these more restrictive income streams has become law.

On 7 December 2024, Treasury Laws Amendment (Legacy Retirement Product Commutations and Reserves) Regulations 2024 came into effect.

After announcing these measures in in the 2021-22 Budget, practitioners, advisors and clients alike have been waiting on Government to enact the ‘amnesty’ procedure to ‘get out’ of these historical non-commutable income streams.

These Regulations now allow superannuation fund members, who have otherwise non-commutable pensions a five-year period in which they may fully commute that pension into accumulation phase within a self managed superannuation fund (SMSF). 

Such pensions include:

• lifetime defined benefit pensions
• life-expectancy defined benefit pensions
• market-linked pensions (which are widely referred to as ‘legacy pensions’ in the SMSF sector).

Prior to the introduction of the new regulations, if a member with a legacy pension sought to restructure their restrictive pension accounts, the result would often leave an unallocated reserve in the SMSF, which could not be allocated to the member without being assessed against the members contributions caps.

This five-year window will permit members to have more flexible access to their superannuation benefits, allowing them to retain funds in accumulation phase, commence an account-based pension, or withdraw as a lump sum (subject to the rules of their fund). Importantly, the flexible access applies only to living members, and not reserves created as a result of the death of a legacy pensioner.

Whether a member chooses to obtain the benefit of the regulations or retain their legacy pension is a decision that should be carefully considered with advice from a licenced financial advisor. These changes (if the five-year window is utilised) may mean that a change to the strategy of death benefits as part of an SMSF member’s estate plan needs to be considered.

How we can help

For expert advice or guidance regarding Estate Planning and self managed superannuation funds, please do not hesitate to contact us.

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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.

As the threat of bushfires continues to rise in Australia, especially during the warmer months, it is crucial for schools to implement robust bushfire preparedness strategies. The Victorian Registration and Qualifications Authority (VRQA) has released comprehensive Guidelines for schools on how to become bushfire-ready in accordance with new bushfire preparedness guidelines, which come into effect on 1 January 2025. While existing schools have until 1 July 2025 to comply with the updated Guidelines, it is never too early to review and update your bushfire preparedness strategies.

This article will explore the key elements of the VRQA’s updated guidelines, emphasising the importance of proactive measures in safeguarding students and staff.

Understanding the bushfire risk

Victoria’s unique climate and geographical features make it particularly susceptible to bushfires. Schools located in or near bushfire-prone areas face heightened risks, which can endanger lives and homes; and disrupt all aspects of life, not least educational activities.

Understanding the risks associated with bushfire season is the first step in effective preparation. The VRQA encourages schools to assess their vulnerability by reviewing local bushfire risk maps and historical data.

Developing an Emergency Management Plan

A well-structured Emergency Management Plan (EMP) is at the heart of a school’s bushfire preparedness strategy. All schools are required to have EMPs in place in relation to bushfire risks. Even inner-city schools go on excursions in the bush occasionally and as such, must be prepared to respond appropriately to the bushfire risk.

Schools that are located in high-risk areas (and are as such listed on the Bushfire-at-Risk Register (BAAR)) are subject to additional requirements; such as increased planning and communication obligations, and undertaking consultation with local fire authorities on their bushfire preparedness. If your school is located in or near a bushfire-prone area, you should ensure school leadership is aware of and compliant with these requirements. 

The VRQA outlines essential components that should be included in an EMP:

• Risk assessment: Identify potential hazards, such as nearby bushland or unmaintained areas, and assess the likelihood and potential impact of bushfires.
• Emergency procedures: Establish clear protocols for staff and students in the event of a bushfire. This includes evacuation routes, communication plans and designated assembly points. The new Guidelines include clarification about the requirements of on-site shelter facilities for schools listed on the BAAR.
• Roles and responsibilities: Clearly define the roles of staff members during a bushfire emergency. Assign responsibilities for communication, student supervision and first aid.
• Regular training and drills: Conduct regular training sessions and evacuation drills to ensure that all staff and students are familiar with the procedures outlined in the Bushfire Management Plan.

Communication strategies during a bushfire emergency

Effective communication is vital during a bushfire emergency. Schools should develop a communication plan that includes:

• Emergency contacts: Maintain an updated list of emergency contacts, including local fire services, emergency services and school leadership.
• Parental communication: Inform parents about the school’s bushfire policies and procedures. Ensure they know how to receive updates and instructions during an emergency.
• Community engagement: Engage with local emergency services and the community to stay informed about bushfire risks and response strategies. Establishing relationships can lead to better support during crises.

Infrastructure and environment management

Maintaining the school environment can significantly reduce bushfire risk. The VRQA suggests several strategies:

• Clearing vegetation: Regularly clear dry leaves, branches and other flammable materials from around school buildings.
• Creating defensible spaces: Establish defensible zones around school premises by maintaining low vegetation and creating barriers to slow down the spread of fire.
• Infrastructure resilience: Ensure that buildings are designed or retrofitted to withstand fire. This can include using non-combustible materials and installing fire-resistant windows and doors.

Engaging students and staff

Creating a bushfire-ready culture within the school community is essential. Involve students and staff in bushfire preparedness initiatives through:

• Education programs: Implement educational programs that teach students about bushfire safety, the environment and emergency response.
• Student leadership: Encourage student involvement in bushfire planning committees, allowing them to contribute ideas and foster a sense of responsibility.
• Community projects: Engage in community projects focused on bushfire awareness and preparedness, helping students understand the broader implications of bushfire risks.

Review and continuous improvement

Bushfire preparedness is not a one-time effort; it requires ongoing evaluation and improvement. The VRQA advises schools to:

• Regularly review plans: Revisit and update the Bushfire Management Plan annually or after significant incidents to incorporate lessons learned.
• Gather feedback: Solicit feedback from staff, students and parents on the effectiveness of bushfire procedures and training sessions.
• Stay informed: Keep up-to-date with changes in bushfire risk assessments, regulations and best practices for bushfire preparedness.

Conclusion

Preparing for bushfires is a shared responsibility that involves the entire school community. By following the VRQA’s guidelines, schools can develop comprehensive EMPs that engage students and staff, and ensure continuous improvement in their preparedness efforts.

With proactive measures in place, schools can significantly reduce the risks associated with bushfires, ultimately ensuring the safety and well-being of students and staff. As bushfire seasons become more frequent and intense, it is imperative that schools take action now to be bushfire-ready.

How we can help

Our specialist Education Law team is here to assist you to assess your school’s compliance with the existing and updated VRQA bushfire preparedness Guidelines. We can help you develop your EMP, and ensure that it meets all the requirements set out by the VRQA.

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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.

Our article Transgender protections in the spotlight: What it means for your organisation discussed the implications and significance of Roxanne Tickle v Giggle for Girls on clarifying the protections under Sex Discrimination Act 1984 (Cth) (Act). The Federal Court has now handed down its decision which confirms that transgender people are protected under the Act.

Background of the case

Roxanne Tickle is a transgender woman who was removed from the mobile app, Giggle for Girls (Giggle) which is an online communication app for women that does not allow men to join or use the app. The CEO, Sally Grover, removed Ms Tickle’s account on the basis that Ms Grover considered her to be male upon review of her photograph.

Ms Tickle lodged a discrimination claim against Giggle with the Federal Court on the basis of her gender identity.

In defending the claim, Giggle argued that:

• Ms Tickle was discriminated on the basis of her sex which they considered to be male as her ‘sex’ could not be changed; and
• Giggle was a ‘special measure’ to promote the substantive of women, which is an accepted form of lawful discrimination.

Federal Court Decision

The Federal Court found that Giggle engaged in indirect discrimination towards Ms Tickle on the basis of her gender identity. Under the Act, indirect discrimination occurs when a person imposes or a requirement, condition or practice which has or is likely to have the effect of disadvantaging persons who have the same identity as the aggrieved person (in this case, the same gender identity as Ms Tickle). It was found that Giggle imposed a condition that users were required to appear as a cisgendered female in order to be permitted access the app. This requirement had the effect of disadvantaging transgender women in comparison to cisgendered women.

The discrimination was not considered to be direct discrimination as direct discrimination required Ms Grover to have actual knowledge that Ms Tickle was a transgender woman and there was no evidence of this.

The Federal Court did not accept Giggle’s argument that there was discrimination on the basis of sex. The Court confirmed that ‘sex’ takes a broader ordinary meaning as opposed to a biological concept referring to whether a person at birth has male or female physical traits. It accepted that a person’s sex could change and refers to a person being male, female or another non-binary status. The definition of ‘sex’ takes into account a range of factors including biological and physical characteristics, legal recognition and how they present themselves and are recognised socially. The Court recognised Ms Tickle’s sex as being female and therefore it could not be that she was discriminated on the basis of her sex as argued by Giggle.

It was also not accepted that the special measure exception applied. As Giggle argued that its purpose was to achieve substantive equality between men and women, the exception would only apply if it was discriminating against a male on the basis sex. It did not apply in the present situation as Ms Tickle is a transgendered woman.

Additionally, the Federal Court rejected Giggle’s argument that relevant provisions of the Act were unconstitutional.

The Federal Court ordered that Giggle pay Ms Tickle compensation in the sum of $10,000 and pay her costs. Giggle is currently seeking to appeal the decision.

How we can help

The decision confirms that the Act protects transgender people on the basis of their gender identity and provides clarification as to the definition of ‘sex’ in the Act. The case highlights that organisations should carefully consider whether their practices and conduct in relation to single sex spaces and services are lawful and reasonable, and whether an exception, exemption or special measure could apply.  

Our safeguarding and discrimination team can assist organisations to understand how state and federal anti-discrimination laws apply to their operations, and the extent to which exceptions or exemptions may apply.

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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.