The COVID-19 is a health crisis that has caused extensive disruption to our way of life. Lockdown placing restrictions on travel and cautious spending habits, it is unlikely that the economy will see an immediate recovery to previous activity levels. This has had a notable impact upon workplace law as many employees have been stood down or made redundant. In response, the Fair Work Commission has acted to vary industry awards and will continue to conduct hearings for cases of unfair dismissal.
Redundancy and being ‘stood-down’
Many businesses have been shut down for being a non-essential business, or a result in reduced demand due to restrictions on movement. It is likely that the unemployment rate will take a long time to recover as a result of this environment of fear and uncertainty.
If you have been made redundant or stood down, it is important that you seek legal advice on whether the decision complied with the basic principles of workplace law. Unlawful termination of contracts of employment or enterprise agreements and unfair dismissal is a key issue in most employment law cases.
Fair Work Commission (‘Commission’) is conducting hearings and conferences for general protections and unfair dismissal but by way of phone or videoconference. If you have believe that you have been unfairly dismissed, you must apply to the Commission within 21 days of your dismissal taking effect. It is recommended that you seek legal advice prior to lodging an application to explore other avenues of action you could take.
The Fair Work Commission is in the process of varying industry awards to allow for more flexibility during the COVID-19 pandemic. On 8 April 2020, the Commission made determinations to vary 99 awards to provide for unpaid pandemic leave and great flexibility for annual leave for employees. The changes to these awards provide for two weeks of unpaid pandemic leave and the ability to take twice as much annual leave at half their normal pay if their employer agrees.
These measures will are temporary and are in effect until 30 June 2020. The leave does not need to have been accrued and is not pro-rated for employees who do not work full-time. If you are an employee looking to take unpaid pandemic leave, you should know your rights under this award as this should not affect other paid or unpaid leave entitlements or require you to use all your paid leave first.
Not surprisingly, there has been a surge in applications to the ATO for relief and JobKeeper payments (which are set to be released in May 2020). If an employer is eligible to receive these JobKeeper payments they have an optional right to give an employee a ‘JobKeeper enabling direction’ that entitles them to payments. If an employee agrees to the terms of the JobKeeper payments, this does not diminish their existing rights under workplace laws.
The employee must continue to be paid the same base rate, or the applicable penalty rates, and any other allowances that apply to the hours they work. An employee may be asked to work additional hours, and these hours need to be reasonable. An employee can refuse a request to work, and if the only reason for a request to work additional hours is to ‘match’ the amount of the JobKeeper payment, this is not likely to be a reasonable request. Under general protection provisions of the Fair Work Act, it is unlawful to for an employee to work unreasonable additional hours, or require this to be a condition in order to receive the JobKeeper payment.
It is important to be fully aware of your protections as an employee under workplace laws and your employment contract. If you would like more information on how we can assist you with your matter, do not hesitate to contact us on 9963 9800 or at [email protected]. Read more on our blog here for further more information and analysis on the restrictions and rules in place during COVID-19.
Making a Will can often feel like a daunting and unnecessary task. With much of the angst in the community regarding COVID-19 beginning to subside, you may be thinking that making a Will is not an important task anymore. However, the unfortunate reality is that death is inevitable and proper creation of a Will is always an important task, regardless of the circumstances. In this article, we explore five of the most common objections to making a Will and why these objections may not always hold up in reality.
1. I’ve told my family my wishes and I know they will do the right thing.
Sometimes knowing the wishes of a loved one who has recently passed away can mean a variety of different things to different family members. Moreover, verbal instructions are an inadequate way of dealing with your estate. Verbal instructions aren’t always binding and can result in delays and expenses for the administration of your affairs. The death of a family member is already an emotionally difficult time. Through ensuring you leave behind a clearly laid out and validly executed Will, your family will have one worry taken off their hands.
2. I’m a young person – the need to make a Will is far off for me.
Unfortunately, death is no respecter of age! Even with the simplest of estates in the case of a young person, the creation of a Will, enduring power of attorney and advance care directive helps ease the burden on those left, and may prevent the need to apply to the court for clarity.
3. My affairs are just too complex.
The issue with this objection is not that your affairs are too complex, but rather a solution seems too difficult to find. Yet, what is required is an experienced legal professional who can talk through your affairs and find an appropriate process to deal with your affairs.
4. What’s the point? Wills are successfully challenged a lot.
This is a common misconception. Wills and Estates lawyers are highly qualified in assessing the risk of a successful challenge and can suggest ways to reduce the value of the assets that are vulnerable to a challenge. Assets vulnerable to a Will challenge are assets that are owned under your own name. Your lawyer can advise you on mechanisms to reduce this risk, for example through transfer to a trust, jointly owning bank accounts and changing ownership of property to ensure your assets are dealt with in your desired way.
5. I already have a Will from quite a few years ago.
It is important that all Wills are regularly reviewed. Circumstances will inevitably change in life, such as the birth of a child, the start or breakdown of a relationship or assets being bought or sold. It is commonly suggested that Wills should be reviewed at least every three (3) years to ensure they reflect your most current circumstances. Old Wills could be obsolete and result in your estate not being dealt with in accordance with your wishes or being challenged by disgruntled and self-entitled beneficiaries.
Making a Will is vital to ensure your estate is dealt with in your desired way. If you would like more information on how we can assist you in making or updating your Will, do not hesitate to contact us on 9963 9800 or at [email protected]. For more information, check out our blog here.
The Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) (The Regulation) is another government initiative in response to COVID-19. The Regulation officially came into force on 22 April 2020 and aims to provide clarity on how some documents can be witnessed by an eligible witness via audio visual link. One of the most critical aspects of the Regulation is that it does away with the requirement for a witness to be physically present to witness the execution of documents. In this blog, we answer some of the most common questions regarding the new method of witnessing legal documents electronically.
What does audio visual link mean?
Audio visual link means any technology that enables audio and visual communication between two persons who are not physically present in the same room. This usually consists of the classic video conferencing platforms such as Zoom, WhatsApp, Skype and FaceTime.
What documents can be witnessed by audio visual link?
The below documents can now be witnessed through an audio visual platform:
- a Will;
- a Power of Attorney or Enduring Power of Attorney;
- an Appointment of Enduring Guardian;
- a deed or agreement;
- an affidavit (including any annexure or exhibit to an affidavit) except for the purposes of divorce; and
- a statutory declaration.
How do I witness a document by audio visual link?
In order to have a validly witnessed document it is imperative that the Regulation is followed correctly and carefully. In accordance with the Regulations, a person witnessing the signing of a document using an audio visual link must:
- Observe the person signing the document in real time (i.e. not via a pre-recorded video) to confirm the signature is legitimate.
- Next, the person witnessing the document must sign the document (or a copy) as soon as possible after the witnessing via audio visual link to confirm they witnessed the signature. This could be done on a hard copy of the original document that the signatory signed which is either sent in the post or electronically to the witness.a.
- It is important to note that the person witnessing the document must be reasonably satisfied that the document signed by the witness is the same document signed by the signatory.
- The person witnessing must then state on the document the method of witnessing (either countersigned or counterpart) that was used and that it was witnessed in accordance with the Regulation.
- For example: “I, [insert name here] attest that this document was signed in counterpart and witnessed by me by audio-visual link via Skype in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017”.
Are there changes to who can act as a witness?
The Regulation has altered who can witness a Statutory Declaration. Traditionally, only Justices of the Peace and Solicitors could act as a witness to a statutory declaration.
The Regulations have been amended to allow the below persons to witness a statutory declaration
- financial advisors;
- accountants who are a member of Chartered Accountants Australia, CPA Australia or the Institute of Public Accountants;
- veterinary surgeons;
- police officers; and
- teachers (only those employed on a permanent full time or part time basis at a school or tertiary education institution).
With so many changes happening in the legal sector due to COVID-19 it is important to be fully aware of how these may practically impact you. If you would like more information on how we can assist you with your matter, do not hesitate to contact us on 9963 9800 or via our contact form. Check out our blog for further information and analysis on the restrictions and rules in place during COVID-19.
Coronavirus has undoubtedly had a substantial impact on the Australian economy. This unfortunately means that some residential tenants are struggling to keep up with their rental payments, due to increased unemployment or standing downs. However, the NSW government is introducing measures to support landlords and tenants and encourage them to work together through this difficult time. In this article, we explore some of these measures to help you understand landlord and tenants obligations under these new initiatives.
The new measures include an interim 60 day stop on landlords issuing termination notices or applying for a NSW Civil and Administrative Tribunal eviction order due to rental arrears, where tenants are financially disadvantaged by COVID-19. This will be followed by limitations for 6 months for rental arrears evictions for tenants financially disadvantaged by COVID-19.
To meet the requirements for the 60 day stop on evictions, residential tenants needs to demonstrate that they are impacted by COVID-19. A household is impacted by COVID-19 if:
- one or more rent-paying members of a household have lost employment or income (or had a reduction in employment or income) due to COVID-19 business closures or stand-downs, or
- one or more rent-paying members of a household have had to stop working or reduce work hours due to illness with COVID-19 or due to COVID-19 carer responsibilities for household or family members, and
- the above factors result in a household income (inclusive of any government assistance) that is reduced by 25% or more.
What are the obligations for a tenant?
- To be honest and act in ‘good faith’ in negotiations with their landlord
- Provide the landlord with relevant information and proof regarding their situation if they have been impacted by COVID-19
- Tenants should have regard to the landlord’s financial situation, including whether they rely on the income to cover expenses such as mortgages
- Tenants must work towards achieving a mutually satisfactory outcome.
All tenants who are not impacted by COVID-19 are expected to honour their existing tenancy agreements and continue to pay all rent and charges in full.
It is important for landlords to have regard to the tenant’s situation and be considerate of the financial burdens they are facing due to COVID-19. However, this must be weighed against the landlord’s personal financial situation and how a rental reduction may impact their income.
What are the obligations for a landlord?
- To negotiate a rent reduction if their tenant has been impacted by COVID-19
- Landlords can only seek to give a termination notice or apply for an eviction after the interim 60-day stop if it is fair and reasonable in the context of the specific case
- Only after negotiations have failed can a landlord seek to terminate the agreement. The NSW Civil and Administrative Tribunal (NCAT) will have discretion to assess whether it is fair and reasonable to evict in the circumstances of each case
- To be honest and act in ‘good faith’ in negotiations with their tenant
- Landlords should be honest and frank about their financial situation, including whether they rely on the income from the tenant to cover expenses such as mortgages
- They must work towards achieving a mutually satisfactory outcome with the tenant.
Fair Trading will also be able to assist landlords and tenants trying to reach an agreement if needed.
It is important to be fully aware of your obligations under your residential lease agreement. If you would like more information on how we can assist you with your matter, do not hesitate to contact us on 9963 9800 or via our contact form. Check out our blog here for further more information and analysis on the restrictions and rules in place during COVID-19.
COVID-19 continues to disrupt the operation of businesses globally, presenting new challenges to company directors on how to continue to carry out their duties and obligations. While many directors are focused on the immediate practical implications of operating in these challenging times, directors must ensure they keep in mind their broader obligations to stakeholders under the Corporations Act 2001 (Cth). In this article, we address the potential issues facing directors in the context of the current pandemic.
There are numerous statutory obligations directors must adhere to. Directors must continue their duty to act in good faith and in the best interests of the corporation. Given the uncertainties surrounding the COVID-19 pandemic it may be challenging for directors to determine how their immediate actions may impact the long-term success of the company and its various stakeholders.
While directors must of course focus on the immediate implications of operating in these uncertain times, they must ensure that they continue to act in good faith and in a reasonable manner and make decisions based on the most reliable and up-to-date information in front of them. Continue to place priority on protecting the health and welfare of staff, and consider enacting contingency plans to avoid exposing the company to outside risks.
Financial Reporting and Annual General Meetings
The coronavirus has temporarily impacted companies’ abilities to hold annual general meetings (AGMs). For listed and unlisted public companies required to hold an AGM by 31st May 2020, ASIC has confirmed that it would take no action if AGMs are postponed up to the end of July or if AGMs are held virtually in compliance with s 249S of the Corporations Act. The holding of virtual AGMs is permitted under the Corporations Act, however entities must check whether their constitution restricts meetings being held in this way and seek legal advice on section 1322 of the Corporations Act.
Insolvency and ‘COVID-19 safe harbour’ provisions
The Coronavirus Economic Response Package Omnibus Act 2020 included, among other measures, a new section 588GAAA into the Corporations Act granting temporary relief for financially distressed businesses. The amendments provide a ‘safe harbour’ to grant relief for directors from potential personal liability for insolvent trading.
In order to be able to rely on these measure, the debt leading to insolvency must have been incurred in the ordinary course of the company’s business, during the six month period commencing from the 25 March 2020 (or longer as prescribed in another regulation), and before any appointment of an administrator or liquidator during that period.
In relation to insolvent trading, directors should seek advice early from a qualified and independent advisor about the company’s financial affairs and the options available to manage the disruption caused by COVID-19.
Check out our blog here for further more information and analysis on the restrictions and rules in place during COVID-19.
It is important to be fully aware of your duties and obligations as a director during this rapidly evolving and challenging environment during COVID-19. If you would like more information on how we can assist you, do not hesitate to contact us on 9963 9800 or at [email protected].
The Fair Work Commission (FWC) announced on 1 April 2020, that it intends to temporarily amend 103 modern awards in response to the COVID-19 pandemic. This amendment is set to operate until 30 June 2020. The FWC has confirmed that this initiative is intended to provide protection from dismissals for employees. This amendment is intended to provide employers and employees with additional flexibility amid COVID-19. In this article, we outline the temporary variations and what they mean for the impacted awards.
What are the temporary variations?
The FWC has proposed to temporarily vary 103 modern awards to:
- provide employees that are affected by COVID-19 (including full-time, part-time and casual employees) with an option to take 2 weeks unpaid pandemic leave; and
- Offer for employees, through agreement with their employer, to take twice as much annual leave at half the rate of pay.
Some examples of the impacted modern awards are the Aged Care Award 2010, Banking, Finance and Insurance Award 2010 and the Educational Services (Teachers) Award 2010.
A full list of the 103 awards can be found here on the FWC Statement, page 28.
Unpaid Pandemic Leave
The first proposed amendment would allow employees to elect to take up to 2 weeks unpaid leave. This is only available if the employee is “required, by government or medical authorities or acting on medical advice, to self-isolate or is otherwise prevented from working by measures taken by government or medical authorities in response to the COVID-19 pandemic in circumstances where the employee is required to work at premises operated by an employer.”
Employees do not have to use any paid leave before accessing the unpaid pandemic leave, however they must provide reasonable evidence of the need to take unpaid pandemic leave.
Annual leave at Half the Rate
The proposed amendment also provides that an employer and employee may come to an agreement where the employee can elect to take up to twice as much annual leave at half the rate of usual pay. Additionally, the deduction from an employee’s leave loading balance must only be what would have been subtracted for half the period at full pay. For example, if an employee takes two weeks leave at half pay, only one week’s leave is to be deducted from their leave loading balance. It isimportant to note that any agreement between an employee and employer in relation to this scheme should be properly recorded in writing and retained on the employee’s record.
With so many changes happening in the legal sector at the moment due to COVID-19 it is important to be fully aware of your rights and obligations as an employee or an employer. If you would like more information on how we can assist you with your matter, do not hesitate to contact us on 9963 9800 or at [email protected].
Check out our blog here for further information and analysis on the restrictions and rules in place during COVID-19.