Can Your Employer Force You To Take Leave During Lockdown?

Can Your Employer Force You To Take Leave During Lockdown?

As NSW and other parts of Australia are plunged into another stay-at-home period due to the Covid-19 outbreak, businesses are once again likely to be feeling the pinch. Whilst many are able to work from home, some employers may look to ask employees to take annual leave if the company has ceased operations as a result of the lockdown. This article will address whether an employer can force an employee to take annual leave during lockdown, and the obligations of both parties in these circumstances.

How does annual leave work?

Annual leave allows an employee to be paid whilst having time off work. Generally, full time and part-time employees are eligible for a minimum of 4 weeks annual leave based on their ordinary hours of work, however the courts have also recently recognised a casual worker’s right to annual leave in some circumstances. Generally, annual leave is taken upon agreement between an employer and the employee. However, in unusual or extenuating circumstances, your employer may direct you to take annual leave.

Can my boss force me to take annual leave during lockdown because of COVID-19 restrictions?

In short, yes. An employer can direct employees to take some leave in limited circumstances such as when the business shuts down. Whilst this is common during the Christmas/New Year period, business have been extending this principle when COVID-19 restrictions force business shutdowns.

However this directive must be considered reasonable. Factors considered when determining reasonableness include:

  • Needs of the employee and the employer’s business
    • Agreed arrangements with the employee
    • Custom and practice of the business
    • Timing of the direction or requirement to take leave
    • Length of the period of notice given

Therefore, employers should be mindful to give notice as soon as practicable if such a directive will be issued to employees and specify the period for which they will be required to take leave. Employers can also ask you to take annual leave where you have an excessive annual leave balance, which is generally 8 weeks or more of accrued leave.

What if my employer is covered by JobKeeper?

If your employer is an eligible JobKeeper recipient, they can ask you to take paid annual leave, provided you keep a balance of at least two weeks paid leave. Generally, if your employer requests you to take annual leave that will not deplete your paid leave balance below two weeks, this is not unreasonable under the COVID-19 scheme. If you believe that the request is unreasonable, you can refuse to take leave, however this may not be advantageous to you. It is important to consider practical circumstances such as your working relationship with your employer, and speak to them about any concerns in the first instance.

Contact Etheringtons Solicitors

We represent both employers and employees in the changing landscape of the COVID-19 pandemic, so if you or your organisation needs further advice or assistance in relation to annual leave or other workplace entitlements, please call Etheringtons Solicitors on (02) 9963 9800 or fill out a contact form.

How Sydney’s current COVID-19 restrictions will impact parenting arrangements

How Sydney’s current COVID-19 restrictions will impact parenting arrangements

The current COVID-19 lockdown has caused many familial disruptions, particularly given students across Greater Sydney, having been on school holidays, are likely to be remaining at home for the next couple of weeks as the new school term is expected to be via remote learning. This may cause some confusion for blended families and separated parents whose parenting plans are largely structured around the school term and travel restrictions limit access to public meeting points. This article will discuss how to approach parenting arrangements during stay-at-home orders to ensure you are still complying with your obligations.

Parenting arrangements

A parenting agreement is a written record of an understanding between separated parents about the care of the child/ren and often how time with the child/ren will be shared between the parents. This  can take the form of a written agreement between the parties or a formal consent order that has been approved by the Family Court. This agreement is formulated with the best interests of the child as the paramount consideration.

In the instance of court-ordered parenting arrangements, it is very important that parents ensure they are proactively complying with the terms set out by the court. If a court finds that you have breached a parenting order without a reasonable excuse, it can impose penalties ranging from varying the parenting order, compensation for time lost with the child, or fines and imprisonment.

Therefore, if you are concerned that you are unable to meet your parenting obligations under a court order, or you feel as though your ex-partner has breached an order, it is essential to seek proper legal advice.

Reasonable excuses for breaching COVID-19 restrictions

The current COVID-19 situation in Greater Sydney is understandably causing significant concerns for parents and families across the region. Under Sydney’s current COVID-19 restrictions, anyone living in Greater Sydney, including the Blue Mountains, Central Coast, Wollongong and Shellharbour, cannot leave home without a reasonable excuse. Fortunately, it is considered a reasonable excuse to leave home for existing parenting arrangements which ensure access to and contact between parents and children. Parenting arrangements include those set out in parenting plans or court orders. This reasonable excuse includes travelling to:

  • Collect and drop off children as set out in parenting arrangements
  • Provide child-minding services at someone else’s home if the person needs to leave the house for essential reasons or you are the parent or guardian of that child, provided this is in keeping with existing parenting arrangements.

Follow existing parenting arrangements

The health and safety of parents and children is of the utmost importance in these challenging times. Therefore, you should, whenever possible, follow existing parenting orders and arrangements. However, in extenuating circumstances, when doing so would place someone at risk, then non-compliance may be deemed necessary and reasonable changes to the arrangements should be made.

Where it is possible, parents should work together to prioritise their children’s best interests by protecting the child from harm and ensuring they may benefit from a meaningful relationship with both parents. For example, if one parent is told to self-isolate pending the results of a COVID-19 test, then it is reasonable to maintain contact via phone or FaceTime and consider arranging “make-up time” when feasible, once that parent has received a negative result or recovered from an illness.

Where possible, parents should communicate directly to re-arrange their contact with the child/ren, or do so with the assistance of a third party such as an experienced lawyer from Etheringtons Solicitors. Any alternative arrangements should be documented in writing.

How Etheringtons Solicitors can help

A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. If you need further advice or assistance with family law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via [email protected].

How to challenge a COVID-19 related fine

How to challenge a COVID-19 related fine

COVID-19 Restrictions (as of July 13, 2021)

Restrictions on movement for people in Greater Sydney, the Blue Mountains, Central Coast and Wollongong have been extended until 11:59pm on Friday, July 16 following the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021 (and its amendments) under the Public Health Act 2010 (NSW) section 7. This lockdown applies to anyone who lives in, usually works in or usually attends a university or tertiary educational facility within this region. There are only a limited number of exceptions to this Health Order which enforces the lockdown, such as requiring a reasonable excuse of one of the following:

  • Essential work or education where that is not possible from home;
  • Continuing existing parenting arrangements or accessing childcare;
  • Outdoor exercise in groups of up to 2 people;
  • Medical care or compassionate reasons; or
  • Shopping for essential goods or accessing essential services.

There are harsh penalties for breaching this Health Order and its restrictions (such as indoor mask wearing). Police can issue to an individual a $1,000 on-the-spot COVID-19 related fine for breaching the Health Orders and a Court can fine an individual up to $11,000 or order them to six months imprisonment, or both.

If you are issued with an on-the-spot COVID-19 related fine (or penalty notice), you can either:

  1. Pay the fine,
  2. Ask for a review of the fine, or
  3. Appeal the fine in court.

1. Paying the COVID-19 related fine

Once you have been issued a fine for breaching the COVID-19 Health Orders, you can pay the fine in its entirety or organise to make instalment payments with Revenue NSW. If you do not pay the issued fine, Revenue NSW may suspend your driver’s licence, cancel your car registration, charge you extra fees, or take money from your wages or bank account to pay it.

From the time the Penalty Notice is received, you have 21 days to pay the fine. If it is not paid, you will be issued a Penalty Reminder Notice, providing you with another 28 days to pay the fine. Following the additional 28 days, you will get an Overdue Fine Notice. If this is not complied with, you may be issued an Enforcement Order. Individuals are provided with ample notices regarding the payment of fines, and therefore, you should consider to have the fine reviewed or appealed instead of enabling the amount of the fine to accumulate.

2. Challenge the COVID-19 related fine by asking for a review

If you instead wish to challenge the fine, you may ask for a review through Revenue NSW’s myPenalty portal. You must be able to identify reasonable grounds in order to seek a review of the penalty. This includes if you believe the fine was wrongly issued as you had a reasonable excuse, or if there are relevant exceptional circumstances such as the following:

  • Affected by mental illness;
  • Affected by disability;
  • Are under 18 years of age;
  • Homeless; or
  • Suffering financial hardship.

Supporting documentation, such as medical documentation or statements demonstrating the receipt of financial support, should be provided to assist your case in the review.

You can challenge the fine by asking for a review before or after paying the fine. The review must be sought by the due date on the Penalty Reminder Notice if the fine has not been paid. If the fine has been paid, the review must be sought within 60 days of the original Penalty Notice being issued.

3. Challenge the COVID-19 related fine by appealing in court

Alternatively, you may wish to challenge the fine by appealing it in your Local Court. You can apply to do so through Revenue NSW’s myPenalty portal. You can appeal the fine if, because of any of the abovementioned grounds, you do not believe you disobeyed the Health Orders, you think the penalty for your conduct was too harsh, or you want the court to consider your special circumstances. If you have not paid the fine (whether or not you have attempted to review the decision), you must apply to appeal it by the due date on the Penalty Reminder Notice. If you have paid the fine before receiving a Penalty Reminder Notice, you must apply to appeal it within 90 days of being issued the penalty notice. If you have paid and attempted to review the decision, you must apply to challenge the fine in court within 28 days of being informed of the outcome of the review.

However, there are numerous risks of challenging the COVID-19 related fine by appealing in court. If you are found guilty of breaching the Health Orders, you may be given a larger fine than you originally had. You may also have to pay a court costs levy or the legal costs of the prosecutor. You also risk being convicted of an offence which would be added to your permanent criminal record. Due to the nature of these risks, we encourage you to seek legal advice from one of our experienced solicitors before disputing the fine in Court.

How Etheringtons Solicitors can help

A solicitor at Etheringtons Solicitors can provide you clarification of the relevant law and its relation to your individual circumstances. Furthermore, Etheringtons Solicitors can assist with challenging the fine by preparing for the review or court appeal. If you require further advice or assistance, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

Tribunal’s ruling welcome relief to small business prevented from JobKeeper

Tribunal’s ruling welcome relief to small business prevented from JobKeeper

Covid-19 continues to disrupt business operations, creating an uncertain environment for business owners to trade within. In response to the drastic impact of Covid-19 on the Australian economy, the Federal Government introduced the JobKeeper scheme to support small businesses and combat unemployment. Whilst many businesses have benefited greatly from the scheme, some were excluded from Commonwealth support as they failed to meet the eligibility criteria. The recent case of Apted v Commissioner of Taxation considered the requirement for businesses to have an active Australian Business Number (ABN) when applying for the JobKeeper package; the Tribunal finding that the purpose of the scheme was to support businesses and arbitrary eligibility requirements were contrary to this objective.


Mr Adept was the sole trader of a small business where he worked as an expert valuer in rental disputes up until July 2018 at which point he retired. As such, he cancelled his GST and ABN registration effective June 2018. However, after he decided retirement wasn’t for him, in September of 2019 Mr Apted was engaged to provide services for the odd client. He mistakenly assumed that he was not required to reactivate his ABN as he did not anticipate to make more than $75 000 per year and did not think he needed to be registered for GST or an ABN.

At the end of March 2020, Mr Apted applied to have his ABN reactivated, which was reinstated by the Registrar with a date of effect of 31 March 2020. He then subsequently applied for a JobKeeper payment in April 2020, but his application was rejected as he was deemed ineligible due to his inactive ABN at the 12 March 2020 cut-off date. Mr Apted then contacted the Registry and had his ABN retrospectively backdated to be effective from July 2019 after which he appealed the decision with the Commissioner. His claim again failed on the basis of ineligibility and Mr Apted subsequently escalated the decision of the Commissioner to the Administrative Appeals Tribunal of Australia.

Eligibility Requirements for JobKeeper

There are several requirements set out in the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) that must be met in order for a business to qualify for JobKeeper payments. These include:

  • At 1 March 2020, the entity was an active business; not for profit operating primarily in Australia; or a deductible gift recipient.
  • The entity employed at least one eligible employee during the JobKeeper fortnight being applied for.
  • The entity satisfies the original decline in turnover test: which is generally satisfied when an entity’s projected GST turnover for the test period falls short of current GST turnover for the relevant comparison period by the specified percentage (normally 30%). There are alternative tests for businesses started in 2020 before March 1.
  • The entity satisfies the actual decline in turnover test: which is generally satisfied when an entity’s actual GST turnover for the test period falls short of the relevant comparison period, by specified short fall percentage (normally 30%).
  • The entity satisfies the integrity rules: have an ABN that was active on 12 March 2020; and an amount was included in the entity’s assessable income for 2018-19 income in relation to the business or the entity made a taxable supply in a tax period between July 2018-12 March 2020.

Decision of the Administrative Appeals Tribunal of Australia

In its decision, the Tribunal considered the purpose of the JopKeeper scheme as a mechanism for providing necessary and accessible support to small business owners. The Tribunal found that the Integrity Rule containing the requirement for an active ABN at 12 March 2020 was contemplated by the government as putting trust in the Registrar and the ABN process, rather than a fixed deadline. As a result, where the Registrar decides to use its discretion to retrospectively date an ABN, this does not vitiate the integrity of the ABN for the purposes of JobKeeper eligibility. The Tribunal found in favour of Mr Apted, and reiterated the need for JobKeeper to remain a streamlined and attainable scheme for Australian businesses.

It is worth noting that that the ATO has confirmed that they have lodged an appeal against the decision in the Federal Court of Australia and the possible future implications of this decision remain unclear. However, the ATO maintains the AAT’s decision has not changed the need to satisfy all of the other eligibility conditions.

Other Recent JobKeeper Updates

From the 28th of September 2020, businesses and non-for-profits seeking to claim JobKeeper payments to March 2021 must reassess their eligibility with reference to their actual turnover in the December quarter and demonstrate the required decline turnover test has been met. Further, from January 4th the payment amount has decreased to $1,000 per fortnight for eligible employees and business participants working for 20 hours or more a week on, and $650 per fortnight for employees and business participants who were working for less than 20 hours a week.

How do I check the status of my ABN?

An Australian Business Number is a unique identifier that enables your business to identify itself, avoid PAYG tax, and claim GST credits. It is important as the owner of a small business that you are able to check the status of your ABN and reactivate it before expiry. You can apply or reapply online for an ABN through the Australian Business Register website, and once your application is successful your details will be added to the Australian Business Register. The Register contains the status of all ABN’s including their expiration date. Once you have obtained an ABN it is important you keep your details up to date in the Register, as this is how you will be contacted when your ABN is due for renewal. If you do not receive a notice of renewal, or unsure about the status of your ABN you may need to seek out further assistance.

Further Information

Matters such as these highlight the importance of seeking expert legal and taxation advice when conducting a small business. Mr Adept himself acknowledged his misunderstanding of ABN requirements was because he failed to obtain proper advice. If you are the owner of a small business, and want to understand more about your eligibility for JobKeeper payments or about the implications of an ABN for your business, do not hesitate to contact us on 9963 9800 or via our contact form.

Modern Awards – An Update, June 2020

Modern Awards – An Update, June 2020

Several modern awards have been significantly varied by the Fair Work Commission (‘FWC’) to grant businesses and employees temporary measures to preserve the ongoing viability of businesses and jobs during the COVID-19 pandemic. In addition to the unpaid pandemic leave and annual leave flexibility that has varied over 99 awards since 8 April 2020, the NSW Government has inserted provisions in the Long Service Leave Act 1955 (NSW) relating to pandemic leave. Employers should become familiar with these important industry award changes which we will outline below.

Changes to Modern Awards in 2020

The Tranche 2 awards, including the following listed below, have been finalised and will come into effect from the 29 May 2020. In addition to unpaid pandemic leave, the following changes have been inserted that are temporary and will be reviewed on 30 June 2020:

1. Clerks — Private Sector Award 2010

Operational flexibility: employees can be asked by their employers to do any tasks that they have skill and competency for, even if they are not in their usual classification or normal work, given that the employee has the appropriate licenses and qualifications. If an employee is told to work above their usual classification for more than one day, they must be compensated by being paid at a higher rate.

Work from home agreements: Part-time employees can agree to have minimum engagements reduced from 3 hours per shift to 2 hours. Casual employees can agree to be paid for a minimum 2 hours’ work shift instead of 3 hours.

Ordinary hours change while working at home: Agreements can be made to allow employees to work between 6am to 11pm on Monday to Friday, and 7am to 12.30pm on Saturday.

Reduced hours: Any employee who has had their hours reduced can ask their employer for permission to find more work with another employer and/or access training, professional development and study leave through their employer.

See determination for further information.

2. Hospitality Industry (General) Award 2010 and Restaurant Industry Award 2010

Operational flexibility: An employee can perform any duties within their skill and competency provided that they are licensed and qualified to perform them. Employees engaged to perform higher duties must be compensated at a higher rate than their ordinary classification.

Working hours: An employer may direct a full-time employee to work an average of between 22.8 and 38 ordinary hours per week and be paid on a pro-rata basis. An employer may direct a part-time employee to work an average of between 60% and 100% of their guaranteed hours per week (over the roster cycle).

Annual Leave: An employer may, subject to considering an employees’ personal circumstances, direct the employee to take annual leave with 24 hours notice.

See determination for the Hospitality Industry Award and the determination for the Restaurant Industry Award.

3. Educational Services (Schools) General Staff Award

Temporary reduced hours: An employer may issue a notice of intention in writing to direct an employee to reduce their ordinary hours by up to 25%. The direction will come into effect 5 days after the notice of intention was issued and will remain in force for a period of no more than 12 weeks.

Operational flexibility: An employee can perform any duties within their skill and competency provided that they are licensed and qualified to perform them. Employees engaged to perform higher duties must be compensated at a higher rate than their ordinary classification.

Other awards that have been varied include the Rail Industry Award, Contract Call Centres Awards and Manufacturing and Associated Industries and Occupations Award. See what other awards have changed in 2020 here.

Considerations for Employers

Employers must be aware of their changing obligations surrounding unpaid pandemic leave and any other laws, such as those relating to the JobKeeper subsidy. The greater flexibility in relation to job roles and duties, work hours and leave under some awards is a positive development towards enabling businesses to meet the challenges caused by the pandemic. However, employers must proceed with caution to ensure that their work agreements comply with these award variations.

Further Information

For further assistant on any matter relating to work from home policies or any workplace matter, please contact one of our experience employment and litigation solicitors on 02 9963 9800 or [email protected].

How to Protect Your Assets during a Financial Crisis

How to Protect Your Assets during a Financial Crisis

The COVID-19 pandemic has shocked the financial markets and created difficult situations for people who own assets that have fallen in value. In this article, we explore three tips that could help protect your assets and finances throughout the COVID-19 crisis.

Disclaimer: This article has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, financial advice. We recommend that you should consult your own finance advisors before engaging in any transactions. 

Protecting Personal and Family Assets

A discretionary trust (also known as a family trust) can be used to protect assets in the event of a financial crisis or bankruptcy. A typical family trust operates as a legal relationship between a trustee and beneficiaries, where the trustee is under an obligation to hold property for the benefit of the beneficiaries. The trustee is the legal owner of the trust property and the beneficiaries only hold an interest in the trust property. Therefore, if a beneficiary were to experience financial hardship, trust assets are protected from the beneficiary’s creditors as they do not own the trust property.

However, trustees on the other hand may fail to achieve asset protection if the predominate purpose for the administration of a trust was for a tax benefit or other considerations. For example, it is common for family trusts to have a corporate trustee as this structure brings tax benefits and can exist indefinitely and can appoint multiple directors to control the trust.

There are many events that risk exposing the assets of a trust, including where loans are made from a family trust, when there are unpaid allocations of trust income and capital, and when companies are beneficiaries. Many deficiencies stem from a poorly constructed Trust Deed, therefore it is important to consult a legal professional to carefully draft a deed with relevant clauses included to ensure asset protection.

Protecting Business Assets

One of the greatest risks during economic downturns is for a business to become bankrupt. Creating limited liability companies or corporations is the most common strategy to help protect your personal assets from the reach of creditors. Businesses can also use the structure of a trust to protect assets that have value, such as machinery, equipment or intellectual property, to prevent them from being taken in the event of a lawsuit.

Professionals that are at risk of personal liability must be careful as the risk of insolvency and/or lawsuits frequently arise during a financial crisis. Thus, it is important to check your business and professional indemnity policies for inclusions and exclusions. One way you could protect yourself is to increase your professional and public liability policy premiums and cover more extensively the events that are likely to occur in the current environment.

Pension and Superannuation Funds

Most pension and superannuation funds can allow you to shift your investments across different asset classes. As volatile market movements have resulted in falling share prices, shifting your investments could substantially reduce the current value of your portfolio. If you are older or rely on income from your fund, you could consider reducing the risk of your investments by shifting holdings from equities to bonds and cash. However, it is important to note that moving your investments could mean that you sell at a lower than usual price and therefore miss out on opportunities for future price increases. As such, some financial advisors may suggest to sit out of the market and wait until things blow over. If you are middle-aged or younger and will not need to rely on a fund income within the next ten years, attempting to time the markets is risky and a series of rash decisions could lead to a loss in the potential future value. Many suggest that the key is to maintain a balanced portfolio that spreads risk across different asset classes to reduce your downside risk and also ensure exposure to upside risk when the market outlook improves.

Further Information

If you would like more information on how we can advise you about trusts and protecting your assets, do not hesitate to contact us on 9963 9800 or at [email protected].