While delays in project progress and completion are common in the construction industry, the circumstances leading to the delay can rarely be foreseen at time of commencement.
For this reason, contractual provisions dealing with time and progress are drafted broadly, allowing for a process of claim and assessment as required.
A consultant or contractor who gets the procedural steps right, at the right time, has good prospects of avoiding liability arising from delay, being liquidated damages as well as potentially general damages.
Unfortunately, we see all too many “good" claims for extension of time fail because they were not made properly (in writing with sufficient detail) or not made at the right time.
With an eye on the impact of the COVID-19 pandemic, it is an opportune time for construction consultants and builders to consider the steps necessary to avoid liability arising from delay.
Process
The most commonly missed step in the process is the first and most important step; provision of notice of delay within the time set out in the contract. Sometimes the event which has caused (or will likely cause) delay, is simply missed. The forensic argument in that case will be focused on the discoverability of the event and whether a reasonably competent consultant or contractor ought to have picked up on the event and its impact on progress.
Just as often however, the event and its impact on progress is known to the applicant but there is an election made to not submit a notice of delay or make an application for an extension of time for a number of reasons, including:

a mutual abandonment of the contractual processes, where claims for variations or extensions of time are approved even though they are made in a manner not contemplated by the contract or out of time;
where the head contractor and/or principal has actively discouraged the submission of contractual claims – you have no doubt seen the type of correspondence, "Don’t make a claim just yet, we’ll make up the time or extend time at a later stage"; and
a reluctance on the part of the consultant or contractor to compromise commercial relationships by drawing attention to the event, either because there is optimism that the time can be made up or because, strangely, the consultant or contractor does not want to seem "overly contractual".

Steps outside the contractual process often happen when the commercial relationship between the parties is good. At the beginning of the project when projected timeframes seem adequate, parties may take a relaxed attitude towards contractual processes, but plenty can happen during the life of a project to eat away at a previously adequate program or to sour previously good relationships. It is at this precarious point, where contractual processes will come into very sharp focus.
Looking at the three reasons above, if a consultant or contractor has failed to notify of delay and claim an extension of time for the first or second reasons, there are sound legal arguments to be made preserving the right to an extension of time. If however, the reasons for non-compliance with the contractual process are those set out in the third scenario, there is a lot of work to be done to recover the contractual entitlement.
The time to seek legal advice is during the life of the project, ideally at the occurrence of the event which has caused (or will likely cause) delay. A timely and properly crafted notice of delay and claim for extension of time, will preserve all of the rights that the consultant or contractor agreed to at commencement.
Form
The form and content of the notice and claim will vary depending on the requirements of individual contracts.
The notice and claim should be comprehensive but as simply stated as possible. That is obviously a difficult balance to achieve, but inclusion of the following information is a useful guide:
(a) a heading which identifies the correspondence as a "notice of delay" and/or "claim for extension of time", together with a reference to the contractual clauses which require the notice and allow for the claim;(b) a description of the event which has caused (or will likely cause) delay;(c) timing of the event;(d) cause of the event;(e) what impact the event has had (or is likely to have) on project resources and the program;(f) photographs (if appropriate), records, sketches, relevant designs and correspondence;(g) how the consultant or contractor may recover progress if possible; and(h) estimated costs associated with the delay event.
If there is a project-specific platform for delivery of notices, the notice and claim should be uploaded there. Correspondence of this nature should not be exchanged by individuals via ordinary emails, by fax or post, if it can be avoided.
How will delays caused by COVID-19 be treated?
Consultants and contractors are obviously keen to understand how delay caused by the COVID-19 pandemic will be treated. The answer is simply, "like any other cause of delay, in accordance with the contractual provisions dealing with time and progress". For that reason, the requirements of the contractual process must be followed as closely as possible. Timely and properly crafted notices should be issued as soon as the potential for delay is discovered.
The pandemic will cause delays to construction projects. Delayed manufacture and delivery from overseas will occur and there will be delays (even at the design stage) associated with manpower in light of government restrictions around gatherings and normal business operations.
Whether or not the pandemic is a force majeure event will depend on individual contract wording and the extent of working restrictions by government intervention in various locations. The sensible approach is to be cautious and assume the force majeure provision will not be triggered. Consultants and contractors should constantly assess and update the baseline program with reference to focused reasons for delay, be it manufacture or manpower, rather than to broadly say, "COVID".
In each circumstance, it will need to be considered whether the delay claimed is excusable or non-excusable by reference to the categories of events set out in the contract.

In this time of COVID-19 some Australian states and territories have applied restrictions on residents travelling across state and territory borders, with some of these restrictions involving strict quarantine requirements. Many families are naturally concerned about the safety of their children and how these restrictions will affect their lives and parenting arrangements.
Border arrangements are primarily a matter for each state or territory government. There is currently no national approach to help parents with border closures.
So what should you do? The Courts have strongly advised families to seek advice from their relevant state and territory authority as to how each state or territory is enforcing border restrictions and quarantine requirements. For example, there may be an exemption in your state to enable families with court Orders in place to travel across state and territory borders. The details for each state and territory authority can be accessed here: https://bit.ly/2z31uoh
If you are travelling across closed state or territory borders to enable parenting arrangements, it is recommended that you should have in your possession a hard copy of the appropriate court Order or at least an electronic copy or photo of your Orders.

Since the World Health Organization (WHO) announced that COVID-19 is a pandemic, workplaces within Australia and globally have had to vastly adapt their way of working.
This article sets out the key relevant health and safety legal obligations from WHS regulators, as well as the recently published information and resources set out by Safe Work Australia (SWA), and practical steps for organisations and workers in managing COVID-19.
Common-sense, educative approach from Australia’s Work Health and Safety (WHS) Regulators
Australia’s Work Health and Safety (WHS) Regulators recognise that the COVID-19 pandemic has created an exceptional set of circumstances and will have significant impacts on organisations, their officers, workers, and other persons with duties under WHS laws.  All organisations must therefore prepare and act to protect workers and others at their workplace from the risk of exposure to COVID-19 so far as is reasonably practicable. 
In light of this, WHS regulators have said they will adopt a common-sense educative approach to dealing with workplaces, providing these workplaces make “genuine attempts" to comply with their WHS duties. SWA has also added to its website a national statement of regulatory intent, which sets out the enforcement approach that WHS Regulators (excluding Victoria) will take to ensure compliance with Australian WHS laws during the COVID-19 pandemic. 
Keeping up to date with WHS knowledge for your workplace: SWA publications
In addition to the above changes, SWA has released a range of new pandemic resources for workplaces with advice on how to minimise the risk of exposure to COVID-19 in the workplace and help limit the spread as well as to assist workplaces to comply with their WHS duties.
The new resources available to organisations and workers include:
       i.        Workplace checklist – to help organisations identify what to do in the workplace.
The new workplace checklist for COVID-19 clarifies what duty holders need to do in relation to working from home arrangements, physical distancing, handwashing and hygiene, cleaning, monitoring systems and planning ahead. 
The workplace checklist also includes reference to a Working from home checklist which sets out the minimum considerations for short-term working from home arrangements. Organisations may have their own more detailed working from home guidance, which should be used in conjunction with these SWA checklists.
      ii.        How to keep workers safe factsheet – an overview of what organisations need to do.
The factsheet includes advice on working from home, physical distancing, handwashing and hygiene, signage and posters, cleaning, and tips on self-isolation.
     iii.        Five things to do in your workplace infographic – with practical steps organisations can take.
The infographic suggests talking to your workers, thinking about your workplace, training your workers, reviewing control measures and future-proofing your business as ways to identify all that organisations can reasonably do to protect the health and safety of workers and others at their workplace.
New industry-specific information from SWA
SWA has also provided new industry-specific information on its website, with a range of resources on minimising the risk of exposure to COVID-19. This includes information for early childhood education and care; in-house services; food processing and manufacturing; warehousing and logistics, public transport, fly-in-fly-out and drive-in-drive-out workers, health and aged care providers, NDIS providers, and marine and airline workers.
Incorporating WHS risk control measures into your business continuity plan
Importantly, the identified WHS risks and control measures should be incorporated into an organisation’s business continuity plan. This will ensure WHS measures are reviewed, along with other parts of the plan, and their implementation is coordinated with other COVID-19 pandemic management measures.
Organisations could develop and implement a continuity plan that covers pandemic preparedness, including (among others):

Preparing to work with a reduced workforce;
Minimising exposure to COVID-19 for workers;
Identifying business-essential positions and how they will be carried out during a pandemic;
Organising a central team to communicate accurate information to workers during a crisis; and
Reviewing and updating WHS risk control measures as required.

In addition, with many workers now working from home to prevent the spread of COVID-19, it is important to consider the direct risks arising from changes to usual work arrangements, as well as the indirect risks that can arise from other factors associated with caring for children, financial strain, or domestic violence.
Importantly, when planning WHS control measures and considering business continuity planning we recommend that organisations should consider and consult workers on all relevant risks and offer support to workers to manage these risks. If you require any assistance with your current COVID-19 WHS business practices, please be in touch.
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The Rules have now been published. While they are largely consistent with previous announcements, we examine some of the key features, including in relation to employer eligibility to participate in the scheme, more closely below.
Decline in turnover test
As we have previously outlined, JobKeeper will be accessible to employers who experience the requisite reduction in turnover (which varies depending on their size and the nature of their business).
The Rules establish a “decline in turnover test" which can be applied to determine whether this requirement is met.
The test may be applied to any month from April to September (inclusive) or to the entirety of quarters beginning 1 April and 1 July 2020.
The "decline" in projected turnover for a relevant month or quarter in 2020 is to be compared with actual turnover from the corresponding month or quarter in 2019.
When a business satisfies the turnover test for any relevant period (month or quarter), it will meet that condition for the remainder of the JobKeeper payment scheme, that is until 27 September 2020.
As such, an employer will commence receiving the wage subsidy for eligible employees as soon as they satisfy the "decline in turnover test". Even if business improves before the end of the scheme, they will continue to receive payments.
However, payments will not be backdated prior to an employer becoming eligible. If an employer only satisfies the test in June, they will not receive the subsidy for previous months.
The Treasury has said there will be some tolerance where employers, in good faith, estimate the necessary fall in turnover to access the scheme but actually experience a slightly smaller reduction.
The Commissioner of Taxation also has discretion to set an alternative test to determine whether an employer qualifies for JobKeeper payments. The circumstances in which this discretion may be applied include where a business was not operating at the same time in 2019 or where the corresponding period in that year is not an appropriate comparison for other reasons (e.g. something unusual occurred in the business during that time).
Record keeping requirements
Employers are required to keep records that enable them to substantiate any information provided to the Commissioner in relation to their eligibility for JobKeeper.
Qualifying businesses must also report monthly turnover information to the Commissioner for the duration of the scheme.
Businesses should keep evidence of a decrease in sales, bookings, quotes, customer sales, number of customers and any other factors that may be relevant to the business’ turnover.
"Contrived" reductions in turnover will not qualify
It is worth noting that if the Commissioner determines a reduction in turnover to be "contrived", then the employer will not be entitled to any payments.
The Commissioner will consider a number of factors in determining whether an employer has entered into a "contrived scheme" to gain access to JobKeeper, including the manner in which the scheme was entered into or carried out, the form and substance of the scheme, the time at which the scheme was entered into, and any changes to the financial position of the employer.
The "one in, all in" rule
It has previously been announced that, once an employer decided to participate in the JobKeeper scheme, then it would need to ensure that all eligible employees were registered. This would ensure that employees who have already been stood down do not miss out on payments.
This "one in, all in" concept features in the explanatory statement to the Rules but, curiously, is absent from the Rules themselves.
It is possible the Rules will be amended to address this, or that employers will be required to declare that they have included all eligible employees when applying for benefits under the scheme.
For the time being, it would be safest for employers to behave as though the "one in, all in" rule were a feature of the scheme.

In our previous update regarding the announcement of JobKeeper, we noted that without legislative change it would still be necessary for employees to agree to measures to support JobKeeper, such as working reduced hours. The most significant aspect of the amendments to the FW Act is that qualifying employers will be able to require changes to employees’ hours of work, annual leave arrangements, performance of duties and location of work and days and times of work. The intention of these changes is to provide employers who are eligible to participate in the scheme with maximum flexibility to make changes without resorting to redundancies. 
In this update, we provide an overview of these and other key changes to the FW Act made by Federal Parliament yesterday. There is much left unsaid by the legislation, which will be dealt with in Rules to be published shortly. We will update you further when that occurs.
Changes to employer eligibility 
As detailed in our previous update, it was announced that JobKeeper would apply to employers who experience a 30% reduction in turnover or a 50% reduction if their annual revenue is over $1 billion.
The final legislation has provided the Treasurer with a broad discretion to vary eligibility requirement without needing to recall Parliament. Employers will be watching closely for any broadening of the scheme. 
Further, the legislation provides for a lower threshold for charities registered with the Australian Charities and Not-for-profits Commission, only requiring a 15% decline in their turnover before they will be eligible for JobKeeper.
Employer payment obligations
An employer who is entitled to a JobKeeper payment must pay a sum equal to or exceeding $1,500 a fortnight to the eligible employee.
The employer must pay the employee by the end of the fortnight.
While an employer will have flexibility to reduce an employee’s hours and change their duties (see further below), they will not be entitled to change an employee’s existing base rate of pay.
Increased stand down options 
Employers who qualify for the JobKeeper scheme will be able to give a stand down direction to employees to:
(a) not work on particular days which the employee would usually work; or(b) work fewer hours than the employee would ordinarily work (including nil hours); or (c) work for a lesser period than the period which the employee would ordinarily work on a particular day or days.
To give a stand down direction, employers must establish that the employee cannot be usefully employed for their normal days or hours due to changes to business attributable to:
(a) the Coronavirus pandemic; or (b) government initiatives to slow Coronavirus transmission.
The direction must be implemented safely, having regard to the nature and spread of Coronavirus.
A JobKeeper enabling stand down direction does not apply while an employee is taking paid or unpaid leave.
Other than receiving at least the amount of the JobKeeper payment, an employee will not be entitled to wages while a stand down direction is in effect.
Flexibility to vary duties, location and days of work 
Employers who qualify for the JobKeeper scheme may make directions or agreements altering an employee’s duties, location and days of work.
Duties
An employer may direct an employee, for the duration of the time they are receiving the JobKeeper payment, to undertake different duties if:
(a) the duties are safe (having regard to the Coronavirus); (b) the duties are within the employee’s skill and competency;(c) the employee is licensed and qualified to perform the duties; and(d) the duties are reasonably within the scope of the employer’s business operations.
An employee is not required to comply with a direction to change of duties of work if it is unreasonable.
Location
An employer may direct an employee for a period to perform duties at a place that is different from the employee’s normal workplace if:
(a) the place is suitable for the employee’s duties;(b) the place is not the employee’s home – it does not require the employee to travel an unreasonable distance;(c) performance of the employee’s duties at the place is safe, having regard to the Coronavirus.
A direction to change work location will not apply if it is unreasonable.
Timing/days of work
An employee and employer may make an agreement that the employee perform work on different days or at different times during a period, compared with the employee’s ordinary days or times of work if:
(a) performance of duties on different days or times is safe;(b) it is reasonably within the scope of the employer’s business operations; and(c) the agreement does not reduce the employee’s number of hours of work compared with the employee’s ordinary hours of work.
An employee must consider and must not unreasonably refuse the employer’s request for agreement to the changed arrangements.
Taking paid annual leave
Employers and employees who are participating in JobKeeper may make an agreement with their employer to take paid annual leave at half pay.
The employee must consider and must not unreasonably refuse their employer’s request to take annual leave at half pay.
A request must not leave an employee with a balance of less than two weeks of annual leave.
Requirements for JobKeeper directions
The JobKeeper directions outlined above must:
(a) not be unreasonable in the circumstances;(b) give the employee at least three days’ written notice of the intention to give a direction;(c) keep written records of consultation; and(d) give the direction in writing to the employee.
An employer making a direction to an employee to change duties or location of work must also provide information to support a reasonable belief that the direction is necessary to continue the employment of one or more employees.
The direction will continue in effect until withdrawn or revoked by the employer, replaced by a new direction from the employer, under a Fair Work Commission order within its jurisdiction under the scheme, or on 28 September 2020.
Jurisdiction of the Fair Work Commission
The Fair Work Commission (FWC) will have jurisdiction to deal with disputes arising under the new JobKeeper provisions.
The FWC is permitted to make:
(a) an order it considers desirable to give effect to JobKeeper enabling direction; (b) an order setting aside, or substituting, a JobKeeper enabling direction;(c) any other order it considers appropriate.
The FWC’s jurisdiction to deal with disputes under these provisions will cease 28 September 2020.

A Full Bench of the Fair Work Commission yesterday varied 103 modern awards to include a new “Schedule X – Additional measures during the COVID-19 pandemic", introducing an entitlement for employees to take unpaid pandemic leave and the ability to take twice as much annual leave at half pay.1
The amendments were made at the Commission’s own initiative to address the unique circumstances pertaining to the COVID-19 pandemic, and follow consent applications to vary the Hospitality Industry (General) Award 2010, the Clerks – Private Sector Award 2010 and the Restaurant Industry Award 2010 late last month to include, among other things, the ability to take twice as much annual leave at half pay. See our previous article regarding the amendments to the Clerks – Private Sector Award 2010.
The 103 awards were selected for amendment on the basis of the industries (and associated awards) that are likely to be impacted by the COVID-19 pandemic in the short and medium term; the awards which have a significant proportion of award-reliant employees; and awards with a high proportion of small businesses. Having regard to these considerations, awards for the construction, maritime and mining and resource sectors are excluded, but may have a "Schedule X" introduced in the course of a second phase of amendments.
With limited exceptions, the submissions received by the Full Bench regarding the proposed Schedule X amendments were supportive, or did not oppose, the proposed variations. The Australian Chamber of Commerce and Industry, the Australian Council of Trade Unions and the Ai Group all supported the proposed variations, with the Commonwealth Minister for Industrial Relations providing submissions expressing his strong support.
Note 1 to Schedule X makes clear that an employee covered by the award who is entitled to the benefit of either new provision has a workplace right for the purpose of section 341(1)(a) of the Fair Work Act 2009 (Cth), with Notes 2 and 3 providing a reminder of the prohibitions against an employer taking adverse action against an employee because of their workplace rights (section 340) and of persons organising or taking action with the intent to coerce another person in relation to the exercise of workplace rights (section 343).
Unpaid pandemic leave
All employees subject to the amended awards, whether full-time, part-time or casual, will have an entitlement of up to two weeks’ unpaid pandemic leave if they are required by government, medical authorities or acting on the advice of a medical practitioner to self-isolate and are consequently prevented from working, or are otherwise prevented from working by measures taken by government or medical authorities in response to the pandemic.
The unpaid pandemic leave:

is available in full immediately (as opposed to accruing progressively based on continuous service);
must commence before 30 June 2020, but may end after that day; 
may be for a period of more than two weeks by agreement; and
counts as service for the purposes of other entitlements.

This amendment seeks to address a "regulatory gap" in leave entitlements and protections against dismissal for employees who are required to self-isolate for 14 days as part of efforts to "flatten the curve", but who might not have an entitlement to personal leave (e.g. if they have not tested positive for COVID-19, are not displaying symptoms and are not unfit for work because of personal illness). The amendments mean that such an employee would be protected from dismissal because of their temporary absence under section 352 of the Fair Work Act 2009 (Cth).
Unpaid pandemic leave was not included in the consent variations to the Hospitality Industry (General) Award 2010, the Clerks – Private Sector Award 2010 and the Restaurant Industry Award 2010, but these awards will be updated to include these as a result of yesterday’s decision.
Double annual leave at half pay
The amended awards will provide additional flexibility regarding annual leave, by allowing an employer and employee to agree to take up to twice as much annual leave at half the rate of pay. That is, an employer and employee will be able to agree to the employee, instead of taking one week’s annual leave on full pay, taking two weeks’ annual leave and receiving the same as the pay they would have been entitled to receive for one week’s leave on full pay (including leave loading) and having one week of leave deducted from their leave accrual.
A period of such leave must start before 30 June 2020, but may end after that date.
Potential further changes
Many submissions received by the Full Bench highlighted the need for flexibility beyond the amendments proposed, for example, to remove or reduce restrictions on an employer’s right to direct employees to take annual leave or to reduce their working hours. Despite this, the Full Bench decided to proceed with the limited Schedule X amendments in order to provide "a quick response to the current crises". However, in reaching its decision the Full Bench emphasised that they will continue to monitor developments and encouraged industrial parties to have discussions regarding consent variation applications, noting that the determination of such applications will continue to be expedited.
In its submissions, the ACTU sought that the Commission, as a matter of urgency after making the Schedule X determinations, consider what additional measures might be fair, relevant and necessary to meet the modern awards objective in awards covering employees who, as part of their employment:

are required to personally attend to the needs of persons who have COVID-19;
are at a recognised high risk of suffering from the COVID-19 virus; or 
work in health and community sector-related environments where the risk of exposure to COVID-19 is clearly elevated (such as in disability services and aged care).

The ACTU, Australian Nursing and Midwifery Foundation, the Health Services Union and the Association of Professional Engineers, Scientists and Managers Australia expressed the strong view that such workers should be entitled to paid pandemic leave on multiple occasions, given the likelihood they may be required to self-isolate on more than one occasion to minimise the spread of infection.
The Full Bench has advised that it will shortly convene a conference of interested parties with a view to establishing a separate process to address this issue.
Any such amendments may impact awards including the Aboriginal Community Controlled Health Services Award 2010, the Aged Care Award 2010, the Ambulance and Patient Transport Industry Award 2010, the Health Professionals and Support Services Award 2010, the Medical Practitioners Award 2010, the Nurses Award 2010, the Pharmacy Industry Award 2010, and the Social, Community, Home care and Disability Services Industry Award 2010.

Eligibility
The Code will apply to tenants that are eligible for the Commonwealth Government’s JobKeeper program with an annual turnover of up to $50 million. In the case of retail corporate groups and franchises, the $50 million threshold will be applied at the group level (rather than individual retail outlet level) and the franchisee level, respectively.
If a tenant does not fall into this category, the National Cabinet believes the Code should still apply, in spirit, to all leasing arrangements for affected businesses, but this is not mandatory.
Timing
The Code will be given effect through state and territory legislation. Each state and territory will determine when the Code will come into effect following 3 April 2020 and it will continue for as long as the Commonwealth JobKeeper program remains operational.
Key negotiation principles

Parties must negotiate in good faith, appropriate temporary leasing arrangements.
Agreements must take into account the financial impact of the COVID-19 pandemic on the tenant.
Due regard must be given to whether the tenant is in administration or receivership.
All leases must be dealt with on a case-by-case basis, and the tenant’s specific case should be taken into account in formulating any temporary arrangements.
Parties must provide sufficient and accurate information within the context of negotiations (such as accounting information detailing the level of financial stress).
Parties must assist each other in their respective dealings with other stakeholders including governments, utility companies and financial institutions.

Key leasing principles

Tenants must remain committed to the terms of their lease. Tenants are not entitled to the protections of the Code where they are in substantial breach of the lease.
Landlords must offer tenants proportionate rent reductions in the form of waivers and deferrals of up to 100% of the amount ordinarily payable based on the reduction in the tenant’s trade during the COVID-19 pandemic period and a subsequent reasonable recovery period, absent of fees, interest or other punitive charges.
Rental waivers (which are not repayable) should constitute no less than 50% of the total rent reduction, unless otherwise agreed by the tenant, and should constitute a greater proportion of the total reduction in rent payable in cases where failure to do so would compromise the tenant’s capacity to fulfil their ongoing obligations under its lease. Regard must also be had to the Landlord’s financial ability to provide such waivers.
Rental deferrals must be amortised over the balance of the lease term and for a period of no less than 24 months, whichever is the greater, unless otherwise agreed by the parties. Repayments should be deferred until the earlier of the COVID-19 pandemic ending or the existing lease expiring, and taking into account a subsequent reasonable recovery period.
Landlords should seek to share the benefit of loan deferrals.
Landlords should provide an opportunity to extend the lease for an equivalent period of the rent waiver and deferral.
Landlords should seek to reduce the tenant’s outgoings where they are unable to trade. In those cases, landlords reserve the right to reduce services.
Landlords should proportionately pass on the benefit of any reduction in statutory charges (such as land tax and council rates) and insurances.
Landlords should not charge interest on rental deferrals, and should not apply any prohibition or levy any penalties where tenants reduce opening hours or cease to trade due to the COVID-19 pandemic.
There should be a freeze on rental increases (excluding turnover rent) and landlords should not terminate leases nor draw on tenant securities due to non-payment of rent during the COVID-19 pandemic period and a subsequent reasonable recovery period.

Mediation
Where parties are unable to reach agreement, the matter may be referred to commercial leasing dispute resolution processes for mediation, including Small Business Commissioners/Champions/Ombudsmen where applicable.
Next steps
Further details on the mandatory code will come in due course once the states and territories each legislate the Code. In any event, the Code is now in effect, and all affected businesses should invite discussion on their leasing arrangements.
For a variety of reasons it will be critical to accurately document all arrangements made pursuant to the Code, generally by way of a deed of variation of lease.
Mortgagees may also be required to provide consent to the arrangements and it would be prudent for landlords to discuss any proposed arrangements with their mortgagee.
A copy of the National Cabinet Mandatory Code of Conduct – SME Commercial Leasing Principles During COVID-19 can be found here.

Is an employee entitled to carer’s leave if their child’s school or childcare centre closes due to COVID-19?
The development of the COVID-19 pandemic has seen increasing restrictions imposed on Australians, and it is appearing increasingly likely that students will transition to remote learning across many states and territories next term.
This may lead employers to query whether their employees will be entitled to paid leave in the event that they find themselves unable to find alternative care arrangements for their children due to a closure of their child’s school or childcare centre.
In making an assessment of employees’ leave entitlements, employers should bear in mind that, in some circumstances, employees may be entitled to paid carer’s leave due to an “unexpected emergency".
Carer’s leave in an "unexpected emergency": Section 97 of the Fair Work Act 2009
Section 97 of the Fair Work Act 2009 states that an employee may take paid carer’s leave to provide care or support to an immediate family or household member who requires care or support because of an unexpected emergency affecting that person.
Interpreting the meaning of "unexpected emergency"
The difficulty with applying this provision is that it has never previously been interpreted by courts in the context of a global pandemic. Some examples of scenarios which courts have previously considered to potentially give rise to an "unexpected emergency" include:

Where an employee had to care for his four children after his pregnant wife gave birth prematurely and was hospitalised two hours away from home
Where a parent had to leave work early to pick up her primary school-aged child when the child’s pick-up arrangement fell through
Where an employee was going on a holiday to Bali with her brother, her sister-in-law and their child. The brother of the employee was stopped from boarding the plane as his passport had expired. The rest of the family took the flight to Bali. While the employee waited for her brother to renew his passport and catch a later flight to Bali, the employee decided to extend her trip by three days, so that the employee’s sister-in-law and their child were not waiting in Bali alone. This required her to take three days of personal/carer’s leave. The Court noted that while "reasonable minds may differ" on this issue, the employee genuinely thought of this as an "unexpected emergency" and the employer could not validly terminate the employee for taking leave

What is clear from these decisions is that courts have generally been willing to interpret the phrase "unexpected emergency" broadly.
An unexpected emergency for the individual or the community?
This begs the question: will courts interpret the phrase "unexpected emergency" as an emergency for an individual employee, or an emergency for the whole community?
The case law shows that courts have generally understood an "unexpected emergency" to be a personal emergency. However, just because previous decisions have not explicitly endorsed the notion that an emergency for the whole community may be an "unexpected emergency", this does not mean that we should dismiss the possibility that courts may consider community emergencies relevant.
The COVID-19 pandemic constitutes an unprecedented circumstance for employees and employers alike. It is feasible that courts may recognise the relevance of community emergencies when deciding whether an employee is entitled to take carer’s leave.
Nonetheless, this does not mean that employees will be given carte blanche to utilise carer’s leave during the COVID-19 pandemic. Section 97 of the Fair Work Act 2009 will continue to be interpreted in relation to the circumstances of the individual claimant. While COVID-19 may lead employees to require carer’s leave due to school or childcare closures, this will not necessarily be the case in every circumstance. For example, a single working parent is far more likely to be affected by a sudden closure of their child’s school or childcare centres than an employee who has a stay-at-home spouse who cares for the kids. Both employees may have children at the same school. Yet if that school closed suddenly, the single working parent would have a much stronger argument that they required carer’s leave due to an "unexpected emergency".
For how long can an emergency remain unexpected?
It should also be kept in mind that an "unexpected emergency" will not remain "unexpected" indefinitely. For example, the sudden closure of a school or childcare centre could constitute an "unexpected emergency" for several weeks, but at some point most employees should be able to arrange alternative care arrangements for their children.
There will likely be a point at which an employee can no longer reasonably say that an event constitutes an "unexpected emergency" entitling them to paid carer’s leave. It is difficult to determine what a reasonable period would be as this would differ depending on an employee’s individual circumstances. Some employees may be able to engage alternative care arrangements quickly, whereas others may not be able to do so for an extended period, or at all. Where a school or childcare centre is closed suddenly or with minimal notice, this will give rise to a stronger argument that the closure constitutes an "unexpected emergency".
What about situations where schools remain open, but most students are not permitted to attend?
In term 2, onsite learning will only be available for Victorian public school students whose parents can’t work from home or vulnerable students without access to a suitable home-learning environment. This raises the question of whether parents who are not working from home can claim that they require carer’s leave due to an "unexpected emergency" when they would rather not send their child to school in the midst of a pandemic.
Where a school remains open, and a parent would be permitted to send their child to school under current government guidelines, any argument that they are entitled to paid carer’s leave due to an "unexpected emergency" would be significantly weakened, if not eviscerated. If an employee requests paid carer’s leave due to the "unexpected emergency" of having to care for their child, employers should be cognisant of whether that child is enrolled in a school which is closed, or whether that child’s school has only reduced the number of physical attendees. Where the school is not closed, employers should consider whether the employee would be permitted to send their child to school under government guidelines.
Key takeaways
Employers should bear in mind s 97 of the Fair Work Act 2009 in the event that an employee requests carer’s leave due to the closure of a school or childcare centre. While each case should be assessed individually, it is likely that some parents will be able to claim paid carer’s leave to care for children in the event of a school or childcare centre closure, at least where the closure is sudden and an employee has not yet had a reasonable chance to arrange alternative care arrangements. Parents are less likely to be entitled to paid carer’s leave under s 97 where their child’s school is not closed and the child is still permitted to physically attend school.
Please reach out if you have any questions about the above, or if you would like further advice regarding employment law issues arising from COVID-19.

This afternoon, National Cabinet has provided further detail on mandatory rent relief for commercial tenancies.
Below are some key takeaways from the PM’s press conference about the proposed mandatory industry code for commercial tenancies.

Eligibility The mandatory code will apply to landlords and tenants where either party is eligible for the JobKeeper program (<$50 million or less turnover).  Good faith leasing principles to apply a. Landlords will be restricted from terminating the lease and calling on securities under the lease; andb. Tenants must continue to comply with the lease terms. Reductions on rent to be negotiatedAs a guiding principle, rent reductions should be proportionate to the reduction in the tenant's business over the pandemic period. a. Waivers of rent – waivers should account for at least 50% of the reduction of rent payable under the lease; andb. Deferral of rent – deferrals must be amortised over the balance of the lease term and for no less than 12 months. Binding mediation If landlords cannot reach agreement on rent relief with qualifying tenants, the parties will be obliged to submit to binding mediation, which will be governed by the applicable states and territories. Further details on the mandatory code will come in due course once each State legislates the code. For a variety of reasons it will be critical to accurately document any agreements that landlords and tenants reach – generally by way of a deed of variation of lease.

Over the last month landlords and tenants have been grappling with their responses to the impact of COVID-19 on tenants’ financial obligations under leases.
Last week, in foreshadowing the mandatory code that is due to be released soon and possibly as early as tomorrow, the Prime Minister said that he wanted landlords and tenants to negotiate in “good faith" on issues including appropriate rent relief for tenants. Each State and Territory will need to implement its own legislation to reflect the principles that will be announced in the mandatory code.
The Prime Minister’s language raises the prospect of significant developments in the common law area of good faith in commercial leases.
Where parties to leases captured by the mandatory code cannot agree on rent relief, they are expected to be obliged to undertake mediation. It is not yet clear whether that mediation:

is intended to be binding, but if so, it may be assumed that mediators will be applying principles of good faith to their determinations; and
is not intended to be binding, but if not, when no mediated settlement is reached and parties subsequently litigate, it is not unreasonable to expect presiding judges to be heavily influenced by good faith principles.

The mandatory code will only apply to certain leases. This will leave many tenants attempting to negotiate directly with landlords on rent relief, both on the interpretation of the lease itself (which most likely will not include a general good faith obligation), and the code. While parties may not be obliged (whether under their leases or under legislation) to vary their lease terms, the unprecedented mix of mandated closures of buildings, tenants reducing or stopping rent payments without approval and a moratorium on tenant evictions because of non-payment of rent raise the prospect of significant future litigation volumes and more expansive interpretations of the doctrine of good faith.
In these unprecedented times, will a broader doctrine of good faith develop, and will the courts be prepared to read a general principle of good faith into commercial contracts? Could the remarkable turmoil the market is currently experiencing form the foundation for the evolution of the good faith doctrine to a point where:

a party could be obliged to act contrary to its best interests (in this example, a landlord having to agree to grant a tenant rent relief); or
a party could be obliged to comply with standards of conduct that are held to be reasonable having regard to the interests of the other party?

Either outcome would be a revolutionary step in the law of contracts.

Natasha Stojanovich looks at how Australia’s $360 billion construction industry is responding to the challenges of COVID-19.
Read the insight here.

1. Consider whether it’s necessary for the employees to work from home (WFH) at all. Unless there is, among other things, “a stoppage of work for any cause", eg. a government mandated shutdown affecting your business, staff may still be able to continue to work. Review government stimulus packages available to continue employing staff.
2. If the business remains open and WFH is not an option, continue to direct staff to follow the social distancing guidelines on the Department of Health website. Set up the workplace, if possible, according to these guidelines.
3. If staff cannot be utilised during a downturn and cannot WFH, look at accrued but untaken leave that they may take (eg. annual leave and long service leave).
4. Circumstances may amount to a stand down of staff (without pay). However, please seek legal and financial advice before proceeding to this step. Finally, consider contacting your counterparts in other industries who may be able to utilise your staff’s expertise and skills during a period of unpaid leave/stand down.

Agility is more important than plans
To navigate complexity requires constant experimentation, rapid learning and adjustment. Your job is to create and hold an environment where people feel “safe to fail" despite the pressure to succeed. Be ready to amplify experiments that work and quickly pivot from those that don’t. Hold your attachments, assumptions and beliefs lightly: put everything on the table.
Language matters
Are we in a "crisis" or a "complex situation that will require the best of our creativity and judgement to survive"? One suggests self-efficacy and pragmatic optimism and the other doesn’t. The work of leadership is to expose your people to the challenge you all face and enlist their focused energy in solving it. Panic is not a useful emotion in this endeavour.
Diversity of inputs is key
When up is down you need to quickly enlist and empower the people with the actual capability and expertise to help. Do a capability/strengths audit of your team and the broader organisation to understand your resources and reveal your hidden capabilities. The work of leadership is then to manage at the boundaries: where these new diverse teams and your existing status hierarchies collide. A crisis does not always overcome immunity to change.

We will see more changes to insolvency rules to give business some clean air during this emergency.For six months, a company can’t be wound up for a debt less than $20,000. For larger debts, the time to pay before a wind up starts is pushed out to six months.A company can incur debt in the ordinary course of business and its directors won’t become liable for the debts if the company is insolvent. The jury remains out on these changes!Under new omnibus legislation, for the next six months the Treasurer can make legislative instruments to modify the operation of specified provisions of the Corporations Act in relation to classes of persons, or to exempt classes of persons. The Treasurer will be able to move quickly to facilitate business continuation at this time and mitigate the economic impacts.What might we see? Further restrictions on business debt recovery and against directors’ guarantees? Will commercial landlords become handcuffed? Payments while insolvent to key business suppliers over other creditors (such as the ATO) may be okay for a while? Voluntary administrations, a key restructuring tool, may lose some red tape and become easier and cheaper to implement?It’s time for creativity. Let the lobbying of the Treasurer begin!

The first of two posts for lawyer-leaders.
1. Practice pragmatic optimism
The impacts of COVID-19 will be profound, prolonged and the toughest decisions are ahead of us. There is no value in shielding yourself or your people from this reality. James Stockdale put it best “You must never confuse faith that you will prevail in the end—which you can never afford to lose—with the discipline to confront the most brutal facts of your current reality, whatever they might be". Be honest with your people and build a team of people around you who can be honest with you.
2. Practice Emotional Agility
If you are human you are feeling something at the moment: anxiety, sadness, anger, fear. Notice your feelings, name them and talk about them with your team. Notice your "hooks" and the things that are holding you "in" emotions. Cherish the daily practices that help you maintain your equilibrium: mindfulness, walks, nature, surfing.
3. Practice compassionate dialogue
Dialogue is the currency of leadership and never more so than in genuine complexity. Devote time every day to coming "alongside" (virtually) as many members of your team as you can. Just sit for a time in empathy and curiosity. Ask them how they are doing, listen deeply to the whole person and tell them how you are feeling.

Lawyer Mark Burrows takes a timely look at e-signatures and digital signing platforms in the April 2020 edition of the Law Institute of Victoria’s Law Institute Journal.
Non-LIV members can view a PDF version of the article here. 

Switching to a more isolated working environment can be an unexpected challenge for many employees. To limit any negative impact, it’s important for employers to encourage their staff to remain connected with their teams and supervisors. Tools and strategies include:

Managers performing frequent verbal check-ins with their direct reports and asking what can be done to improve any concerns with the arrangement
Encouraging employees to get some daily exercise, preferably outside, to minimise the risk of people going days without leaving their home
Helping employees to develop routines for working at home, including scheduled breaks and meal times
Providing updates on any new or changed policies implemented in relation to working from home
Creating opportunities for employees to socialise by using available technology

If an employee is working from home during the COVID-19 outbreak and inform their employer that they are struggling with their mental health, it is important that their employer takes steps to address the employee’s concerns. Working from home may be more difficult for employees with existing mental health problems. If an employer is aware of an employee’s pre-existing mental health issue, they should reach out and offer additional support.

One of the most common questions I get asked relates to the “doctrine of frustration" and whether commercial leases that may not be captured by any new Government regulations will be terminated as a result of Government shutdown of businesses. Frustration could conceivably bring a lease to an end where it can’t be performed due to an unforeseen event resulting in the lease being radically different from that agreed by the parties.
Even the Courts do not deal with it regularly – the last time the High Court looked at the issue was in 1926! Judges will be loathe to readily rule that a lease is frustrated in these unique times. There is a tipping point as to when the obligations under the lease will be "frustrated". For example, if a Government order was made requiring the shutdown for a day or a week, that lease would not be frustrated. The longer the shutdown period is in force, the more likely the contract is terminated as its performance may be frustrated.
A good example is the unsuccessful case brought in Hong Kong in 2004 where a tenant claimed the lease was frustrated because the business was shut down for 10 days due to the SARS virus.
Each case would need to be considered separately to determine whether the circumstances would amount to a frustration.

Love in a time of COVID-19In this time of ‘social distancing’, many couples are finding themselves being ‘romantically crowded’. As many employers ask people to work from home, couples are spending a lot more time together under difficult circumstances. But how close is too close?The lifting of quarantine restrictions in Wuhan earlier this month revealed a significant rise in separation and divorce among local couples. Chinese officials claim this social phenomenon was due to self-isolated couples spending too much time together.Couples working from home, practicing social isolation or living in quarantine can face challenges in maintaining appropriate boundaries. This, of course, can be even more difficult when you are responsible for others in the home. It is important that you and your partner communicate with each other about how you are going to support one another in this time, emotionally, physically and also with the care of your children.What is clear is that home isolation or quarantining can be very polarising. Lander & Rogers’ family lawyers have significant expertise in all aspects of financial and children’s matters and related issues involving married and de-facto couples.If you too are considering separation, it is important to seek expert advice.

As a service provider in these difficult times, you should do whatever it takes to keep your service agreements in operation – even if that means varying the terms to provide for delayed performance or substituting the services provided.
COVID-19 will pass. Your business will benefit greatly on the “other side" if existing service agreements can remain on foot during this challenging time and recommence full operation when circumstances allow.
So, what are your options?
First, check if your agreement contains a force majeure clause, as this may allow you to suspend performance while a force majeure event is ongoing. Check if the definition of "force majeure event" covers the COVID-19 pandemic. Reach out if you need help interpreting these terms.
Second, contact the service recipient to see what alternative arrangements can be put in place commercially. Perhaps the services can be postponed, altered to fit the changed circumstances, or spread out over a longer period. We are assisting clients to negotiate these kinds of arrangements, to help them ride out COVID-19 uncertainty.
You can also ask the service recipient for confirmation that they will not terminate the agreement, or impose penalties for delayed performance, during this time. We are all in this together.