As at the 2021 Census, over 10% of families with dependant children were blended or step families¹. These can present additional challenges in estate planning, particularly in relation to balancing the needs of a new spouse and those of children from a prior relationship.

What if you get it wrong?

In an ideal world, an estate plan should provide for all the important people in your life in a manner that ensures the risk of family conflict is minimised.

There are two main risks if the estate planning in a blended or step family is not adequate:

1. People will miss out – in a traditional family, the estate planning is often on the basis that a surviving spouse will take the estate, with a reliance on them to pass it on to mutual children in due course. Even in this traditional scenario, there is some risk that the survivor will re-partner, fall out with intended beneficiaries or otherwise be influenced to change their planning from what was originally agreed. In a blended or step family, this risk is heightened given there may not be as strong a relationship between step parent and step child or the same feeling of obligation towards them.
   
   Equally, if the planning goes entirely the other way and exclusively benefits children then it may be the spouse that misses out.
   
2. Dispute – a significant proportion of estate disputes involve step children and step parents and this is often motivated by the fear of missing out on an inheritance. The step parent may have every intention of passing on the inheritance to step children in due course, but that intention (unless formalised and binding) is unlikely to prevent any claim from either being made or succeeding.

Common strategies for planning with blended families

There are a number of strategies that can be utilised to mitigate the above issues in a blended or step family context:

1. Life interest – this is a form of trust that can be created by a Will to allow a particular person to have use and benefit of assets for lifetime, while preventing them from dispersing the underlying capital. A common example is for a homeowner to provide a life interest to their spouse permitting them to live in the home for life, before it then reverts to their children. There needs to be consideration of issues like trustee selection, funding maintenance and debt, and tax outcomes. This can be very effective in the right situation and provides great certainty of benefit for the eventual beneficiaries.
   
2. Mutual Wills Agreement – this is an agreement between parties (usually a couple) not to change their Will in the future to defeat an agreed distribution. The fact that a couple create Wills together does not give rise to a Mutual Wills Agreement in itself. There needs to be an actual agreement (usually in writing) that they are prevented from changing their planning in the future. While such an agreement is binding and enforceable, it does have some limitations and cannot prevent legitimate third party claims (eg/ family law claims or estate challenges) from impacting the estate. It nevertheless remains a useful planning tool in the right scenario.
   
3. Direct gifts – where the size of the estate permits it, there may be merit in making direct provision for intended eventual beneficiaries up-front, rather than only when surviving spouse has also passed. This provides certainty that, regardless of the surviving spouse’s own planning, the eventual beneficiaries will have received a portion already. It also reduces or eliminates the need for step children to ‘look over the shoulder’ of their step parent to see how assets are managed and what may be becoming of their inheritance.

Whether these strategies are workable in your estate planning will depend on a number of factors including how assets are owned, age of relevant parties, the value of the estate, whether any structures (companies, SMSFs or trusts) exist, and, ultimately, the people involved and their relationship with each other.

How we can help

No one wants to leave a mess for their family when they pass. The planning in blended or step families requires careful consideration. This article touches on some key planning strategies for this scenario but is only the ‘tip of the iceberg’. Estate planning advice should be sort on your particular circumstances.

For expert advice or guidance regarding Estate Planning the Wills, Estate Planning and Structuring team at Moores are well equipped to ensure the interests of your family are protected.

Contact us

Please contact us for more detailed and tailored help.

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

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.

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¹https://aifs.gov.au/research/facts-and-figures/families-and-family-composition

When a person dies without a Will, their estate – comprising of their personally owned assets – is distributed according to the laws of intestacy (or commonly, the ‘intestacy provisions’). Depending on one’s circumstances, this can be distant relatives they’ve never met, or even the Crown.

In Victoria, the Administration and Probate Act 1958 (Vic) is the legislation that outlines the intestacy provisions. We have put together a helpful guide to the intestacy provisions, which includes the following:

Deceased leaves a partner

A partner in this context means a spouse or a domestic partner. If the deceased leaves a partner and there are no children, then the partner will receive the entirety of the estate.¹ Should the deceased leave a partner and surviving children with that partner, then the partner will still be entitled to the entirety of the estate.² Where the deceased leaves a partner and children from a previous relationship, the partner will receive the deceased’s chattels, a statutory legacy (which was $559,660 in October 2024)³ and one half of the balance of the estate, with the other half to be shared equally between the deceased’s children.⁴

Deceased leaves children but no partner

If the deceased leaves children but no partner, then the surviving children will equally share the estate. If a child predeceased the deceased, any surviving children they have will equally receive their parent’s share.⁵

Deceased leaves no partner and no children

In the event that the deceased leaves no partner or children, then the following hierarchy applies:

1. Parents: Surviving parents receive equal shares of the estate.⁶
2. Siblings: Surviving brothers and sisters receive equal shares of the estate except in circumstances where a deceased sibling had children of their own. The predeceased sibling’s share would be equally shared between their own respective children, should there be any.⁷
3. Grandparents: Surviving grandparents receive equal shares of the estate.⁸
4. Aunts and Uncles: Surviving aunts and uncles receive equal shares of the estate except in circumstances where a deceased aunt or uncle had children of their own. The predeceased uncle or aunt’s share would be equally shared between their own respective children, should there be any.⁹

What about friends?

In many cases, friendships can be stronger than family relationships. Despite this, under the intestacy provisions, friends do not benefit.

What happens if there are no family members found?

If no family members are found, the assets of the deceased will pass to the Crown.¹⁰ There are some complexities that can arise, especially if potential distant family members cannot be verified. This was evident in a judicial advice application made by the State Trustees, where they were unable to verify if there was a relationship between the deceased and what appeared to be his father.¹¹

Facts

Leslie Norman John Sholl (‘Leslie’) died without leaving a Will, spouse, children or any maternal relatives. His estate was worth approximately $550,000. The State Trustees conducted extensive inquiries into the Leslie’s history, including genealogical investigations and it was unclear whether he left any surviving family members.

During investigations, they uncovered various public records and a newspaper article which raised queries as to whether a relationship of father and child existed between Leslie and Leslie Norman Bull (‘Mr Bull’).

In 1946, Mr Bull got married however some four years later, Mr Bull married Joan Mary Sholl (‘Ms Sholl’). Shortly thereafter, Ms Sholl gave birth to Leslie but there was no record of the name of the father listed on the birth certificate. On 2 March 1953, a newspaper article appeared in the local paper which confirmed Mr Bull had pleaded guilty to a charge of bigamy, that being, the crime of marrying someone whilst still being legally married to someone else, making his marriage to Ms Sholl void. There was no direct evidence whether Ms Sholl and Mr Bull conceived Leslie during their marriage or if Mr Bull was even the father however, the fact that she named her child ‘Leslie Norman’, being Mr Bull’s first two names, suggested a connection.

Decision

The presumption at general law is that a child born or conceived during a marriage is the child of the husband of the mother, however this does not apply where the marriage is not valid. The issue the Court had was that despite Mr Bull pleading guilty to a charge of bigamy, there was no evidence of an annulment or dissolution of marriage with Ms Sholl. This ultimately led to the Court deciding that Mr Bull was Leslie’s father. Whilst Mr Bull was deceased, he had living relatives in England, making them beneficiaries of Leslie’s estate.

Important considerations

Ultimately, in the absence of a Will and clear family connections, the assets of a deceased person may either pass to distant relatives or, in the absence of any verifiable family, to the Crown. This highlights the importance of making a valid Will to ensure that one’s estate is distributed according to their wishes, avoiding the uncertainties that arise when intestacy laws come into play.

It is also important to remember that the intestacy provisions only relate to the personally held assets of the deceased person, and therefore do not automatically apply to other interests the deceased may have had, including in superannuation, trusts or jointly held assets. Separate rules apply to the succession of these interests.

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

Please contact us for more detailed and tailored help.

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

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.

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1 Administration and Probate Act 1958 (Vic) s 70J.

2 Ibid s 70K.

3 Ibid s 70M.

4 Ibid s 70L.

5 Ibid s 70ZG.

6 Ibid s 70ZH.

7 Ibid s 70ZI.

8 Ibid s 70ZJ.

9 Ibid s 70ZK.

10 Administration and Probate Act 1958 (Vic) s 70ZL.

11 Re an Application by State Trustees Ltd [2024] VSC 536.

Two key decisions in the last year should make employers wary of how far the general protections regime can be stretched. In Qantas Airways Limited v Transport Workers Union of Australia [2023] HCA 27 (Qantas), the High Court found that adverse action taken to prevent a person from exercising a future workplace right was unlawful. In Dabboussy v Australian Federation of Islamic Councils [2024] FCA 1074 (Dabboussy), the Federal Court of Australia has drawn attention to whether the dismissal of an employee a matter of hours before they met the service requirement to make an unfair dismissal claim could be a breach of the general protections regime under the Fair Work Act 2009 (Cth) (FW Act). This article explores the implications of these cases for employers.

Workplace rights and adverse action

It has always been accepted that under the FW Act, a worker is protected from adverse action taken because they exercised a workplace right, propose to exercise a workplace right, or is able to exercise a workplace right. Two key decisions in the last year however have brought into the spotlight the need to be mindful of a fourth scenario; taking adverse action to prevent a person from exercising a future workplace right.

In the most recent of those two cases, the Federal Court has taken the interim view that adverse action taken to preclude a worker from meeting the service threshold to bring an unfair dismissal claim may breach the general protections provisions under the FW Act.

Case Summary: Dabboussy v Australian Federation of Islamic Councils [2024] FCA 1074

In Dabboussy, Mr Dabboussy was nearing the end of his first 12 months of employment with his employer, AFIC. AFIC was a small business employer with fewer than 15 employees, and therefore Mr Dabboussy would only become eligible to make an unfair dismissal claim upon 12 months of employment.

During the last few months of Mr Dabboussy’s employment, AFIC launched an investigation into allegations of serious misconduct against Mr Dabboussy. On 3 September 2024 at 4.40pm, and just 7 hours short of Mr Dabboussy’s 12-month milestone, AFIC terminated his employment effective immediately on the basis that the investigation determined that Mr Dabboussy was guilty of the misconduct, leaving Mr Dabboussy unable to bring an unfair dismissal claim.

The problem? While Mr Dabboussy was jurisdictionally barred from bringing an unfair dismissal claim, he was not so prevented from arguing that his dismissal was effected to prevent him from becoming eligible to bring such a claim (i.e. adverse action for a protected reason). On the basis of the evidence before the Court (which we note was limited because Mr Dabboussy brought proceedings seeking an interim order), the Court agreed with Mr Dabboussy and cited the following reasons for their view:

1. The investigator’s report was not finished and was still in “draft”, before being relied on to make the decision to terminate Mr Dabboussy’s employment.
2. An emergency meeting of the Executive Committee was called to discuss Mr Dabboussy’s employment. There was no reasonable explanation for this considering Mr Dabboussy had been stood down pending the investigation, and as cited above, had only delivered draft findings.

The Court determined that there was a strong inference available that the Executive Committee meeting was convened with such haste, and relied upon what were only draft findings, to facilitate the termination of Mr Dabboussy’s employment before 4 September 2024, so as to deny him the opportunity to make a claim for unfair dismissal. The court reasoned that while AFIC had reasonable grounds for summarily terminating Mr Dabboussy’s employment, the timing of his dismissal was influenced by a desire to ensure that he could not make a claim for unfair dismissal.

The Court issued an interim order reinstating Mr Dabboussy to his position and restraining AFIC from terminating his employment without leave of the Court. At the time of writing this article, the Court has ordered Mr Dabboussy and AFIC to file further documents relating to the full hearing of Mr Dabboussy’s general protections claim.

What does this mean for employers?

Although this was an interim judgment and the Court will hear further from the parties in a full hearing, it is a foreseeable result of the High Court’s ruling in Qantas Airways Limited v Transport Workers Union of Australia [2023] HCA 27. In that decision, the High Court held that it will be unlawful for an employer to take adverse action to prevent employees from exercising a workplace right they will acquire in the future – even if that right is not presently held when the adverse action occurs.

This is exactly what happened in Dabboussy. The decision highlights that employers could face some risk if they dismiss an employee without reservation before they reach the unfair dismissal eligibility threshold (12 months for small businesses and 6 months for others). If an employer terminates the employment of an employee for the substantial and operative reason of depriving the employee of the right to make an unfair dismissal claim, there is a risk that the employer will be found to have breached the general protections provisions of the Fair Work Act 2009 (Cth).

This decision does not mean that employers cannot terminate an employee’s employment during or at the end of a probation period. Rather, it suggests that employers may need to take additional steps during an employee’s probationary period to reduce the risks associated with terminating employment at the end of that period, or close to the end of it. This may involve implementing a probationary period shorter than the unfair eligibility threshold (provided this is compatible with an applicable industrial instrument), actively managing the probationary period from commencement of employment, and clearly documenting steps taken to manage unsatisfactory performance or other concerns well in advance of the probation period ending.

More broadly, the Dabboussy and Qantas decisions emphasise the need for employers to exercise caution when dealing with employees on the verge of acquiring workplace rights. These decisions focus on unlawful adverse action designed to prevent access to the unfair dismissal regime and the ability to engage in protected industrial action. There are other examples where unlawful adverse action may be used to prevent the exercise of a future workplace right. This includes, but is not limited to the following example: an employer suspects an employee is pregnant and terminates their employment for the substantial or operative reason to prevent that employee from gaining access to unpaid parental leave under the Fair Work Act.

How we can help

Our Workplace Relations team are here to help you navigate the complexities of the general protections regime and to ensure you are meeting your obligations under the Fair Work Act. We can provide practical advice and guidance, assist with decision-making processes that may adversely affect employees and help employers respond to general protections claims.

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.

In recent years, Australia has observed an increase in “grey divorce,” referring to the breakdown of marriages among couples aged 50 and older. This trend reflects broader global patterns and poses unique challenges and considerations. We explore the reasons behind the rise in grey divorces, the specific issues faced by older couples and the implications for their financial and emotional well-being.

Trends and statistics of divorce in couples aged 50 and older in Australia

Grey divorce has been on the rise in Australia, mirroring trends observed in other developed countries. Statistics from the Australian Bureau of Statistics (ABS) indicate a significant increase in the divorce rate among older age groups. Several factors contribute to this phenomenon:

1. Increased life expectancy: With Australians living longer, many older adults seek to maximise their remaining years, sometimes leading to the decision to end unsatisfying marriages.
2. Changing social norms: Attitudes towards marriage and divorce have evolved, with greater acceptance of divorce, even in later life.
3. Financial independence: More women in the 50+ age group are financially independent, making it feasible for them to leave marriages that no longer bring them happiness.
4. Empty nest syndrome: The departure of children from the family home can prompt couples to reassess their relationships, sometimes resulting in the decision to divorce.

Unique challenges of divorce later in life

Divorcing later in life presents distinct challenges that differ from those faced by younger couples:

1. Financial considerations: Older couples often have more complex financial portfolios, including retirement savings, superannuation, property and other investments. Dividing these assets can be complicated, and there is less time to recover financially from the division of assets.
2. Retirement planning: Grey divorce can significantly impact retirement plans. Couples must reassess their retirement strategies and may need to continue working longer than anticipated or adjust their lifestyle expectations.
3. Health and medical issues: Health concerns are more prevalent among older adults, and the loss of a partner can affect access to healthcare and support. Ensuring adequate healthcare and support systems post-divorce is crucial.
4. Emotional and social impact: Divorce at any age is emotionally challenging, but for older adults, it can also lead to social isolation. Maintaining social connections and seeking support from friends, family and professionals is important for emotional well-being.

Legal and financial implications of grey divorce

The legal and financial implications of grey divorce are significant and require careful consideration and planning:

1. Division of assets: The division of assets in grey divorce can be complex. Superannuation, property and other investments need to be fairly divided, often with the assistance of legal and financial professionals.
2. Spousal maintenance: In some cases, in particular traditional marriages where one of the parties (usually the Wife) has spent the majority of her life as a stay at home mother, the issue of spousal maintenance becomes highly relevant. In those instances the Family Law Act 1975 allows for the Wife to seek spousal maintenance from the Husband if she cannot support herself adequately and the Husband has the capacity to pay. For older Australians the problem then becomes whether the Husband is in employment or whether they are in retirement and reliant on a pension from their superannuation.
3. Estate planning: Divorce necessitates a review of estate planning documents, including wills, powers of attorney and superannuation beneficiaries. Ensuring that these documents reflect the current wishes of the individual is important for future financial planning.
4. Tax implications: There may be tax implications related to the transfer of assets, particularly concerning capital gains tax and the transfer of superannuation. Professional advice is essential to navigate these complexities.

Providing financial support to adult children

With the cost of living rising, and residential house prices soaring, it is not surprising that parents are now more frequently providing financial assistance to their adult children to help secure their children’s financial security.

Although it is understandable for parents to have a desire to provide that security for their children, when that adult child is in a relationship and separates from their spouse, that financial assistance may cause a great deal of stress for the parents who have invested significant funds, which may now be subject to a family law claim by the adult child’s spouse and a question will loom as to whether the parent can recover the funds that were provided to the adult child.

How we can help

Given the complexities involved in grey divorce, seeking professional guidance is critical. Our Family Law team at Moores works closely with our Estate Planning team as well as accountants, financial advisors, counsellors and other health professionals to provide support and advice to help navigate the legal, financial and emotional challenges that older separating couples face.

If you require our assistance and would like to have a confidential conversation with an experienced family lawyer please contact our office on (03) 9843 2129.

Contact us

Please contact us for more detailed and tailored help.

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

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.

Moores has ranked as a ‘First Tier’ Law Firm for Victoria in both the ‘Wills & Estates Litigation‘ and ‘Wills, Estates & Succession Planning‘ categories for the eighth year running.

In addition, Jennifer Dixon, Lachlan McKenzie, Krista Fitzgerald and James Dimond have all featured as Leading Lawyers and Max Ezerins as Rising Star in the latest Doyle’s Guide. Recognised by their peers and referrers for their expertise in Wills & Estates Litigation and/or Wills, Estates and Succession Planning.

Our expert team is experienced in assisting families with complex Estate Planning arrangements as well as challenging and defending all manner of Disputes relating to Wills, Estates, Trusts, SMSF and Bequests.

For more information or to speak with one of our experienced lawyers, please do not hesitate to contact us.

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Jennifer Dixon, Practice Leader

• Preeminent Wills, Estates & Succession Planning Lawyer – Victoria, 2024
• Recommended Wills & Estates Litigation Lawyer – Victoria, 2024

Lachlan McKenzie, Practice Leader

• Preeminent Wills & Estates Litigation Lawyer – Victoria, 2024
• Recommended Wills, Estates & Succession Planning Lawyer – Victoria, 2024

Krista Fitzgerald, Practice Leader

• Leading Wills, Estates & Succession Planning Lawyer – Victoria, 2024

James Dimond, Practice Leader

• Leading Wills & Estates Litigation Lawyer – Victoria, 2024

Max Ezerins, Senior Lawyer

• Rising Star Wills, Estates & Succession Planning Lawyer – Victoria, 2024

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First Tier Law Firm

• First Tier Wills, Estates & Succession Planning Law Firm – Victoria, 2024
• First Tier Wills & Estates Litigation Law Firm – Victoria, 2024

Is your not-for-profit (NFP) contemplating a merger? This is part one of a five-part article series that will offer some practical guidance to your board or merger advisory committee. Subscribe to receive the remaining articles in the series.

There are fundamental differences between a NFP merger and a for-profit merger. It is critical to understand these differences, as they will inform the drivers for the merger, influence the scope and focus of the due diligence process and impact the available merger types. 

Different drivers

The drivers for a merger are different. For-profit mergers typically focus on growth and shareholder value – whether through increasing market share, reducing competition or increasing sales. By contrast, NFP mergers are usually purpose driven. NFPs considering merger want to ensure that the merged organisation will better fulfil their vision and mission and better serve their beneficiaries. This means that alignment of purpose is a primary consideration. For many merger types, alignment of purpose is also an essential requirement to permit the transfer of assets from one entity to another or preserve tax concessions and endorsements.

Not a purchase

Since a for-profit merger is often structured as a purchase, valuation is a key consideration in the due diligence process – is the “acquiring” organisation paying a fair price? An NFP merger usually involves the transfer of assets for no cost. This means that an “acquiring” NFP’s focus in the financial due diligence process is not on price, but rather on overall financial risk – would the merger introduce unsustainable levels of financial risk or liability that could adversely impact the merged NFP?

Different regulators and regulation

NFPs are subject to different or additional regulation. NFPs that are registered charities are regulated by the Australian Charities and Not-for-profits Commission (ACNC). NFPs and charities are often income tax exempt and may have tax deductibility, which impacts what they can do with their assets, including in a merger process. It is imperative that directors are aware of and actively monitor the NFP’s compliance with legislation, regulations and standards such as the ACNC Governance Standards.

NFP structures

Finally, NFPs have specialised legal structures (including companies limited by guarantee (CLG), incorporated associations (IA), unincorporated associations, co-operatives and charitable trusts). These structures (and their limitations and opportunities) are not always well understood outside the NFP sector and will impact the available merger types. For example, most jurisdictions require an IA to have more than one member, which means that those IAs cannot merge to become a subsidiary of another NFP. A CLG on the other hand can have a single member or multiple members and can implement most merger types (more on this in part two of the series). Amalgamation is a process available only to incorporated associations which allows two or more incorporated associations in the same State or Territory to become a single incorporated association. The legal structure of merging NFPs and the chosen merger type will determine whether member approval is required to enable a merger to proceed.

It is essential that your advisors (lawyers, accountants and consultants) supporting the NFP merger take these important differences into account throughout the merger process.

How we can help

Considering a merger? Moores specialises in working with NFPs and understand the unique considerations that apply to NFP mergers. Reach out to our Charity and Not-for-profit Law team if you would like more information on how we can provide support at any stage of the merger process.

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.

Enterprise agreements can result in many benefits for employers and employees by tailoring terms and conditions of employment to a particular employer, resulting in increased productivity and flexibility.

One of the objectives of the Fair Work Act 2009 (Cth) is to achieve productivity and fairness through an emphasis on enterprise-level collective bargaining. However, the process for negotiating, approving and implementing an enterprise agreement can seem daunting and confusing. Statistics show a decline in enterprise agreement coverage: the proportion of employees covered by an enterprise agreement decreased from 43% in 2010 to 35% in 2021.

The Fair Work Commission has published a Bargaining Discovery Research report summarising the findings of research it commissioned to better understand the perceptions, knowledge and information needs of parties in relation to enterprise bargaining and making enterprise agreements.

Summary of recent research on enterprise bargaining

The research, which focused on the experiences, observations and suggestions of employers and employees with either no or limited experience in bargaining, found:

• participants had an appreciation of the benefits of enterprise agreements but expressed having difficulties around the actual process of bargaining and making an enterprise agreement;
• participants had a low understanding of foundational concepts and processes in bargaining, such as the role of bargaining representatives, key steps and procedural rules;
• participants reported a heavy reliance on external support; and
• there is demand for more information and education on bargaining and making enterprise agreements.

The Fair Work Commission has implemented changes to reflect its increased role in facilitating enterprise bargaining, including establishing a specialised bargaining support team, advisory groups and targeted resources for users.

How Australia’s Federal enterprise bargaining framework affects employers

For employers contemplating bargaining, the complexity of Australia’s Federal enterprise bargaining framework has increased as a result of recent legislative changes. Those include:

• changes to how bargaining can be started, including employers being required to commence bargaining in certain circumstances;
• a new regime for multi-employer bargaining;
• amendments to the way the Fair Work Commission applies the Better Off Overall Test;
• changes to the way the Fair Work Commission deals with bargaining disputes; and
• a new requirement for enterprise agreements to have a term providing for the exercise of workplace delegates’ rights.

How we can help

Our Workplace Relations team can assist employers with all aspects of enterprise bargaining, from the beginning to the end of the process. Our team is well placed to advise and guide employers on this increasingly complex and technical area of industrial relations so they can confidently approach the bargaining process and negotiate enterprise agreements that bring maximum benefits to their organisation.

Contact us

Please contact us for more detailed and tailored help.

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

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.

The recent inquiry report by the Productivity Commission “Future Foundation For Giving” (the Report) sheds light on the evolving landscape of philanthropy in Australia and offers comprehensive recommendations to foster a more robust philanthropic sector. This article provides an overview of the Report’s history, key findings and recommendations aimed at enhancing philanthropic activity across the nation.

A brief history of the Report

The Report was commissioned to evaluate the effectiveness of current policies and practices and propose strategies to improve the impact of charitable giving. With a focus on identifying barriers to philanthropic growth and exploring ways to encourage more Australians to contribute to charitable causes, the Report aims to promote a more giving society.

Key findings about the state of philanthropy in Australia

The Report highlights several findings about the state of philanthropy in Australia:

1. Diverse giving patterns: While Australia has a strong tradition of giving, the patterns of philanthropy are highly varied, with contributions made for a range of complex and multifaceted reasons that tend to change over time.
2. Barriers to giving: Various impediments, such as complex regulatory requirements, lack of awareness, and limited incentives, hinder more widespread philanthropic engagement.
3. Potential for growth: There is substantial potential to increase the level of giving, particularly among individuals and businesses that currently do not engage in philanthropic activities.

Recommendations to address the barriers to giving and leverage opportunities for growth

The Report recommendations aim to address the identified barriers and leverage opportunities for growth. These recommendations are not binding and will only be implemented if and when they are adopted by the Federal Government.

Some of the key recommendations include:

• Remove the $2 threshold for tax-deductible donations: the current threshold is a product of history, and removal may serve to increase giving (without necessarily increasing administrative burden).
• Simplify and expand DGR eligibility: the Commission recommends broadening the deductible gift recipient (DGR) eligibility criteria to include most types of charitable organisations (excluding certain charitable activities, in particular education, early childhood care and advancing religion). Charities that pursue multiple eligible purposes would only need one DGR endorsement from the Australian Taxation Office, which would cover all eligible activities – this would enable many charities to significantly streamline their operating structures.
• Remove DGR for school building funds: Under this proposal, the DGR category of ‘school building fund’ would be removed. The Federal Government has already indicated that it will not implement this recommendation.
• Define ‘Public Benevolent Institution’ in legislation: the Commission recommends developing a definition in legislation of what constitutes a public benevolent institution, so that the nature and scope of the charity subtype is more clearly understood.
• Remove the concept of ‘basic religious charities’: the Commission recommends ending the concept of a ‘basic religious charity’ and its associated exemptions, to ensure that all charities registered with the Australian Charities and Not-for-profits Commission (ACNC) are regulated in a consistent manner.
• Simplify and streamline laws: achieved via harmonising State and Territory charity and fundraising laws and processes, including the definition of ‘charity’ in each State and Territory.
• Improve the effectiveness of ancillary funds: the Commission recommends a number of measures with respect to ancillary funds, including updating their names to be Private and Public Giving funds to make their philanthropic purpose clearer, increasing the required annual distribution rates, and requiring ancillary funds to develop a distribution strategy.
• Increase public information about charities and giving: including requiring listed companies to publicly report information about their donations, providing more information about bequests, and enhancing the usefulness of information published by the ACNC.
• Establish Independent Philanthropy Connections, as an independent organisation controlled by and for the benefit of Aboriginal and Torres Strait Islander people and communities, with a focus on: ensuring that organisations are more culturally safe and responsive to the needs of Aboriginal and Torres Strait Islander people and organisations; building relationships, networks and partnerships; and supporting the establishment and growth of new and existing Aboriginal and Torres Strait Islander philanthropic organisations.

The Report provides a comprehensive roadmap for enhancing charitable giving in Australia. By simplifying regulations, enhancing tax incentives, promoting a culture of philanthropy, supporting innovation, strengthening collaborations, measuring impact, improving data collection and increasing accountability, these recommendations aim to create a more vibrant and effective philanthropic sector.

While the Federal Government has already made some initial comments with respect to the Report (including notably that they do not intend to remove the school building fund DGR category), we await any formal response and indication as to whether or not any of the Report’s recommendations will be adopted.

How we can help

Our Charity and Not-for-profit Law team continue to stay up to date on the latest updates to the sector. We can can provide you with practical advice and guidance on how to navigate any changes to ensure your charity or not-for-profit organisation is meeting its obligations.

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.

The Fair Work Legislation Amendment (Closing Loopholes No.2) Act 2024 (Cth) (the Act) introduced a suite of significant workplace reforms when it was passed earlier this year. Several of these reforms are scheduled to take effect on 26 August 2024, with some changes for small business employers starting on 26 August 2025. This update briefly summarises these reforms and serves as a reminder for employers to prepare for the upcoming changes. You can read our earlier article for more information.

Right to Disconnect

The Act introduces a right for employees to refuse to read, respond or monitor communication from employers or third parties outside their paid working hours unless that refusal is unreasonable. The change starts on 26 August 2024 for non-small business employers and 26 August 2025 for small business employers. Additionally, the new right will be a ‘workplace right’ for the purpose of the Act’s general protections regime, meaning an employer must not take ‘adverse action’ against an employee for exercising their right to disconnect.

Employers may take several steps to prepare for this new workplace entitlement, including, but not limited to, the following:

• Training managers on the new right to disconnect and highlighting the risk in taking adverse action against an employee for exercising that right;
• Consulting with employees about whether they feel comfortable being reached outside of work hours and being clear when their working hours are;
• Updating employment contracts and/or internal policies to reflect any requirement for employees to be contactable outside of work hours and determine whether an employee’s remuneration package includes compensation for work involved in responding to out of hours communications; and
• Implementing measures to reflect expectations around out-of-hours contact. For example, adding a disclaimer to email signatures stating that a response is not expected until the employee next commences work.

Casual Employment Changes

The Act introduces two key changes regarding casual employment.

New casual employee definition

From 26 August 2024, an employee will be a ‘casual employee’ where:

• the relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work; and
• the employee is entitled to a casual loading or rate of pay for casual employees under a fair work instrument or contract of employment.

This reform signals a move away from an employee’s casual status being assessed based on the contract only, to being assessed having regard to what happens in ‘practical reality.’

Casual Conversion  

The Act also removes the existing casual conversion provisions in favour of an “employee choice” framework. Under this new approach, casual employees can initiate the conversion process themselves by providing their employer with a written notification, so long as they meet the eligibility requirements under the Act.¹ Employers must respond in writing within 21 days of receiving the request and set out whether they accept or deny the conversion.

Transitional arrangements mean the application of the new laws will be phased as follows:

• For employment relationships entered into after 26 August 2024, the new laws will apply from that date, irrespective if the employer is a small or non-small business;
• For employment relationships entered into before 26 August 2024, the new laws will apply from 26 February 2025 for non-small business employers; and
• For employment relationships entered into before 26 August 2024, the new laws will apply from 26 August 2025 for small business employers.

The definition of employment has changed

The Act contains a new definition of ‘employee’ and ‘employer’ which will require a multiple factor assessment to determine if a person is an independent contractor or employee. The emphasis is now on the ‘totality of the relationship’ which is determined by examining the ‘real substance, practical reality, and true nature of the relationship.’

This legislative change will only be relevant for determining entitlements under the Act. Whether a person is an ‘employee’ for the purposes of taxation, superannuation and workers compensation will continue to be determined by other tests. The provisions containing this new definition commence on 26 August 2024.

There are other changes set to commence on 26 August 2024 which may impact some employers. These include laws about unfair contract terms, workplace delegates rights, road transport regulation and regulating employee-like workers.

Still to Come

The Act has also introduced a new federal criminal offence in relation to certain types of intentional underpayments. The offence will commence on 1 January 2025, or an earlier date as declared by the Minister.

An employer will commit an offence if they intentionally engage in conduct that results in a failure to pay the required amount to an employee on or before the day when the required amount is due to be paid. This offence applies only to entitlements under the Fair Work Act 2009 (Cth) or relevant fair work instruments, such as modern awards or enterprise agreements, and does not extend to contractual entitlements. There are also specific types of payments to which the new criminal offences do not apply.²

The Act includes ‘safe harbour’ provisions allowing the Fair Work Ombudsman (FWO) to enter into a written ‘cooperation agreement’ with an employer who has self-reported. However, The FWO ultimately retains discretion over whether to approve such an agreement. 

Under a cooperation agreement, the FWO will not refer the disclosed conduct to the Director of Public Prosecutions (DPP) or the Australian Federal Police (AFP) for prosecution. However, this does not prevent an FWO inspector from initiating or continuing civil proceedings related to the conduct.

The wage theft offence will carry a maximum penalty of:

• For an individual: 10 years imprisonment, and/or a maximum fine of the greater of three times the amount of the underpayment, if the court can determine that amount, or 5000 penalty units; and
• For a body corporate: the greater of three times the amount of the underpayment, if the court can determine that amount, or 25,000 penalty units.

How we can help

Our Workplace Relations team can provide you with practical advice and guidance on how to navigate these upcoming changes to ensure you are meeting your obligations under the new laws. We can provide assistance drafting changes to policies and employment contracts to reflect your organisations expectations of afterhours contact, as well as reviewing casual, fixed-term and independent contractor working arrangements to ensure they are engaged lawfully.

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.

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¹ Fair Work Act 2009 (Cth) s 66AAB.

² These include superannuation fund contributions, long service leave payments, paid leave for being a victim of crime and paid leave for jury service or emergency service leave.

Engaging the same worker for multiple roles across an organisation has undeniable benefits for the employer, including benefiting from the worker’s pre-existing knowledge and experience in the organisation, and familiarity with their work ethic and skills. However, employers should be mindful of the risks where these arrangements are not executed carefully.

The number and prevalence of people working multiple jobs has increased steadily since the onset of the COVID-19 pandemic. Between 1995 and 2019, the multiple job-holding rate was between 5.0% and 6.0%, and following the large decline during COVID, rose to 6.7% at March 2024.¹ Workers in the community and personal service industry as well as the administrative and support service industry are the most likely to be multiple job-holders.² It also appears common for multiple job-holders’ second job to be in the same industry as their main job. For example, most female multiple job-holders whose main job is in health care and social assistance also have their second job in Health care and social assistance.³

Where a worker’s second job is with the same employer, this can have more onerous and complex implications for the employer. The question arises as to whether the employer needs to consider both jobs together when making decisions around rostering, maximum hours of work, overtime payments and other employee entitlements, or whether each job can be considered in isolation. This question was considered in the Federal Court decision of Lacson v Australian Postal Corporation (AusPost),⁴ discussed below, with the principles reaffirmed in Kroeger v Mornington Peninsula Shire Council.⁵

Case summary: Applying the words “particular employment”

In Lacson v AusPost, the Court considered the question of whether the work performed by Lacson for AusPost at two different locations, at two different times, and in the performance of two different sets of duties should, for the purposes of the relevant enterprise agreement, be seen as a single employment for the purposes of section 52(2) of the Fair Work Act (Act).⁶ Section 52(2) states that “a reference… to an enterprise agreement applying to an employee is a reference to the agreement applying to the employee in relation to particular employment.”

Lacson worked three hours per day until 9:00am in his Postal Delivery Officer role. He would then commence his Postal Services Officer role from 3.00pm until 7.30pm. In or around 2010, Lacson obtained further hours in his Postal Services Officer role such that he continued working from 7.30pm until 11.21pm. He would then start his Postal Delivery Officer role the next morning at 6.00am.

Lacson’s claims included that:

1. because he received less than 10 hours’ rest between shifts, he should have been paid penalty rates in accordance with the enterprise agreement; and
2. that the calculation of overtime on the Postal Services Officer shifts should have accounted for the three hours worked in the morning in the Postal Delivery Officer role.

There was no dispute between the parties that both roles fell within the relevant AusPost enterprise agreement (albeit under separate classifications and pay rates). Another relevant factor included that pay for both roles was initially recorded on a single payslip, however in August 2010, AusPost changed its payroll system and Lacson subsequently received separate payslips for his Postal Delivery Officer and Postal Services Officer roles.

The issue in question

The main issue for decision by the Court was the application of the words “particular employment” within section 52(2) of the Act. If both of Lacson’s roles together formed one “particular employment”, then he would be entitled to the overtime and penalty rates sought. However, if each role referred to a separate instance of employment, then he would not be entitled to these payments as each role would be siloed for the purposes of the enterprise agreement.

Notably, the Court was satisfied that the word “employment” referred to the act of contracting to employ a person, whereas “particular employment” referred to the job the person performs because of that contract.

The decision

The Court found in favour of AusPost, holding that each role held by Lacson was a separate and distinct employment, and therefore the entitlements under the enterprise agreement applied separately to each role. As a result, AusPost were not required to make the additional payments for overtime and penalty rates requested by Lacson. The Court’s rationale included that:

1. Performing two different jobs with the same employer was a decision made by Lacson, and not a conscious attempt by AusPost to avoid its obligations under the enterprise agreement.
2. AusPost did not represent to Lacson that the jobs would be treated as one, or that he would secure the considerable additional sums of money that he was seeking.
3. Lacson had been offered, and accepted, two separate and distinct employment contracts, for each role. Each contract outlined the terms and conditions of the distinct role.
4. From 2010, Lacson received two separate payslips, for each role.
5. Each role was distinct in the sense that they were at different locations and involved different duties and responsibilities.

What this means for employers who have employees with multiple roles

It is open to employers to engage employees in different roles in the employer’s enterprise; this is not new. However, employers may also be able to treat each engagement separately for the purposes of entitlements under an applicable enterprise agreement (or modern award).⁷ Where each role is clearly separate and distinct, employers will not need to consider both roles together when calculating entitlements such as overtime, rest break penalties and meal allowances (unless an applicable enterprise agreement or modern award provides otherwise).

However, employers should remain mindful of their OH&S obligations to employees, employees’ physical and mental wellbeing, as well as how rostering may impact productivity and efficiency.  

Steps that employers can follow to maintain separation and distinction between roles include:

• Providing the employee with a separate employment agreement for each role, ensuring that the duties and responsibilities under each role are materially different.
• Communicating to employees that each role will be treated as a distinct engagement, for the purposes of the relevant enterprise agreement or modern award.
• Providing employees with separate payslips for each role.
• Maintaining different employee numbers for each role.
• Taking care not to roster each role with overlaps in shift times.

By taking the steps above, employers can successfully manage multiple-job holders, while mitigating against issues relating to underpayments, termination of engagements and other employment considerations.

Below are some examples of employees with multiple roles and how an employer should manage their employment.

Example 1: The school teacher and football coach

Sherrin Secondary School employs Sarah as an English and Health Teacher. The School knows that Sarah was an amateur football player, and asks her if she would like to take on an additional role as the School’s Football Coach. Sarah is provided with a separate contract of employment outlining her duties as Coach which include organising training sessions, selecting and managing the team, and ensuring the safety of students during training and games. She is rostered to perform her Coach role after school hours and on weekends, and she is provided with a separate payslip for her hours worked. Sarah’s roles would likely be viewed as distinct and separate, for the purposes of entitlements under the applicable enterprise agreement that covers both roles.  

Example 2: The disability support worker and driver

Greenway Care Services employs John as a disability support worker. However, he is sometimes asked to also act as a driver, driving patients to appointments. He has only received one employment agreement for the disability support worker role, however his enterprise agreement also covers drivers.

Whether he is required to drive patient transport depends on the availability of other drivers on the day. Because of this, Greenway does not roster him separately for each role. John is not provided with separate payslips, however his hours and payments for each role are set out in the payslip. It is unlikely that John’s roles as a disability support worker and driver would be viewed as sufficiently distinct and separate, and so Greenway should be treating both roles as one for the purposes of his entitlements.

How we can help

Our Workplace Relations team can provide you with practical advice and guidance on lawfully engaging employees under multiple jobs within your organisation, to ensure you are meeting your obligations under the Fair Work Act and relevant industrial instruments, and mitigating against the risk of underpayment claims. We can assist with reviewing and drafting employment contracts and position descriptions, as well as providing advice on your obligations under industrial instruments, including any specific requirements where an employee performs multiple jobs within the organisation.

Contact us

Please contact us for more detailed and tailored help.

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

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.

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¹Australian Bureau of Statistics, Multiple job-holders, ABS website (accessed 22 July 2024) https://www.abs.gov.au/statistics/labour/jobs/multiple-job-holders/mar-2024

²Ibid.

³Ibid.

⁴[2019] FCA 51.

⁵[2019] FCCA 2313.

⁶Fair Work Act 2009 (Cth) s 52(2).

⁷Section 48 of the Fair Work Act contains a similar provision to section 52(2) regarding the terms of a modern award applying to each “particular employment”.