1. Watch this space
A proposed industry code for commercial and retail leases is coming. The National Cabinet and industry stakeholders have not yet agreed on the terms of the code as yet. The PM indicated he expects the code will be ready by Tuesday 7 April (or earlier).
2. Any agreement will be up to the parties
Both parties will need to use their best efforts to negotiate a mutually favourable outcome in good faith. The industry code will not be overly prescriptive.
3. Application
The code will be mandatory. The PM expects it to be legislated in relevant State-specific legislation.
4. Limited scope
The code will only apply to commercial leases (including retail leases). It will only apply to tenants with revenue under $50 million, and that are participating in the JobKeeper program (tenants with a reduction of turnover of more than 30% due to COVID-19). The code will not apply to residential leases, and will only be in place while necessary.
5. Proportionality principle
Any agreement for a rent reduction will need to be proportionate to the tenant’s individual circumstances. The proportionate reduction in a tenant’s turnover must be reflected in the rent reduction granted by a landlord. If a tenant’s turnover is unaffected by the COVID-19 pandemic, there will be no rent reduction.
6. Tenant protections
Flagged protections afforded to tenants include prohibitions preventing evictions, terminations, and from being charged penalties (including interest on outstanding rent).
7. What about banks?
The PM expects that banks will need to work with landlords and tenants, even though they are not necessarily privy to leases or any proposed variations.
8. Working together
The key theme consistently highlighted by the PM has been that all stakeholders should come together to reach the best solution possible for all involved – and to share the heavy burden imposed by the crisis.

In non-coronavirus news for the insolvency sector, the 26 March judgment of the NSW Supreme Court in Aardwolf Industries LLC v Riad Tayeh provides reassurance to insolvency practitioners who take on the (often understated and unprofitable) work of being a court appointed liquidator.
The Court has restated the principle that its leave must be sought prior to commencing proceedings against a court appointed liquidator for the way in which the liquidation was conducted. The Court identified two reasons.First, court appointed liquidators are delegates and representatives of the court and its power and authority. Historically, the courts tend to offer protection to those who exercise its authority.
Secondly, this protection is required to allow the impartial and unencumbered exercise of a liquidator’s power, free from the fear of vexatious litigation. Court appointed liquidators often make important decisions in restrictive time frames. This protection facilitates the difficult task of liquidation, without causing the liquidator to overly question every decision made.
Court appointed liquidators will play an important role for our economy in the post-coronavirus world. This judgment has their back!

Getting signatures for affidavits and statutory declarations has been a tricky issue for us in the past few days. We’ve had clients and lawyers needing to sign affidavits before a witness, and property dealings and court documents needing to be lodged with original ink signatures, all while working remotely from home.
On Wednesday in NSW, COVID-19 “emergency measures" legislation came into effect to enable regulations to be made for alternative arrangements on the signing and witnessing of documents, and the verification of identity. The courts are also being flexible. The Federal Court, for example, is accepting the filing of unsworn affidavits on the understanding they will be sworn or affirmed when circumstances allow.
The devil will be in the detail of the upcoming regulations. Our legislators have to find a balance between being flexible for business and lawyers while not opening the door for fraudsters.
As the week has progressed, agencies we have been dealing with have become more flexible but we still had an instance where four separate people had to handle the same crucial document in order to get it lodged!As we’re finding, there is always a practical solution and we’re communicating like never before to keep our clients’ matters moving.

Careful consideration should be given on a case-by-case basis as to whether the stoppage of work genuinely renders employees incapable of being usefully employed, writes Aaron Goonrey in this piece for Australian HR Institute (AHRI).

Cassimatis v Australian Securities and Investments Commission [2020] FCAFC 52
The Full Federal Court recently heard an appeal by the directors of Storm Financial, Emmanuel and Julie Cassimatis (the Directors). The Court dismissed the appeal and confirmed that the Directors breached their duty of care and diligence when managing Storm Financial.
Guidance from the Court
In its judgment, the Full Court gives a roadmap for interpreting s 180(1) of the Corporations Act 2001 (Cth):

s 180(1) creates an objective standard for the degree of care and diligence required of directors. Practically, this means that the Court will approach the assessment of a director’s conduct by applying an objective test. That objective test dictates that a director is expected to have done what a reasonable director in the shoes of the director would have done;
a determination of whether a director has breached the standard requires a consideration of the facts as a whole; 
s 180(1) is triggered when a director “exercises a power" or "discharges a duty" and where a director fails to exercise a power or discharge a duty. This case was a clear example of the latter, with the Court saying at [176]-[177]:
 "The failure of the appellants to act in the way a reasonable director would have acted, with the relevant knowledge, occupying the office, in the corporation’s circumstances, with the responsibilities of the appellants, would give rise to a foreseeable risk of contraventions of s 945A(1)(b) and s 945A(1)(c) (and also s 912A(1)(a) and s 912A(1)(b)) which would expose the company to a potential loss of its AFSL and potential harm in the form of a threat to the company’s ‘very existence’: PJ at [774] to [778]; [102] to [108] of these reasons.
The conduct described at [172] to [176] of these reasons, coupled with the foreseeable risk of harm to the interests of the corporation (by reason of the conduct which rendered Storm in contravention of ss 945A(1)(b), 945A(1)(c), 912A(1)(a) and 912A(1)(b)), was conduct of the appellants engaging a contravention of s 180(1) of the Act: see [89] to [109] of these reasons and the conclusionary finding of the primary judge at [697], at [98] of these reasons."
the business judgment rule contained in s 180(2) plays a part in the interpretation of s 180(1). Although the Directors did not rely on the business judgment rule in these proceedings, the Court clarified the following at [29]: "…as to the relationship between the objective standard of care and diligence required of directors by s 180(1) and the duty of care and diligence of directors at common law and in equity, s 180(2) provides that a director who makes a business judgment (in conformity with the integers of the subsection) is taken to meet the requirements of s 180(1) "and their equivalent duties at common law and in equity". The section seems to treat the objective standard required by s 180(1) as equivalent to the duties at common law and in equity." 
the "responsibilities" encompassed by s 180(1) are not merely statutory responsibilities, they also include "whatever responsibilities" that rest with the director "within the corporation, regardless of how or why those responsibilities came to be imposed on that [director]".1 As noted in point 3 above, the responsibilities imposed by s 180(1) also operate where a director fails to take an action. Essentially, the duty of due care and diligence imposes a positive obligation on directors to do everything reasonably expected of them to effectively manage the affairs of the company; and
the Court clearly set out what the consequences of a breach of s 180(1) may entail, given that it is a civil penalty provision. The Court spelled out that where ASIC is seeking that a fine be imposed on a director for a contravention of s (180)1, the Court must make a declaration that the director has contravened s (180)1 and it is being invoked as a civil penalty provision, pursuant to s 1317E(1),(a) the elements of the declaration are prescribed pursuant to s 1317E(2)(b) a director could face a penalty of up to $1,050,000 for each breach of s 180(1). This means that, theoretically, the Court could impose the maximum fine of $1,050,000 for every instance of a breach of the duty of care and diligence.The Court also reminded directors that where ASIC makes an application seeking disqualification, the Court can order the disqualification of a director from managing corporations pursuant to s 206C(1).

What does all of this mean?
The main implications of the Court’s decision are:

The "objective standard" under s 180(1) encompasses all things that a "reasonable director" would be "reasonably expected" to do in the position of the particular director;
The operation of s 180(1) does not preclude the operation of the directors’ duties at common law and in equity. This means a director cannot simply look to the Corporations Act for a list of what they need to do to satisfy their duties. The statutory duties sit alongside the long held common law principles; and
The affairs of a company must be managed directly by or at the direction of the directors. The Court clarified that,

"…the business of the company is to be managed by or under the direction of the directors and the directors may exercise all of the powers of the company except any powers that the Act or the company’s Constitution (if any) require the company to exercise in general meeting…"
This is a timely reminder for directors that, although directors may effectively delegate some of their decision-making, directors must ultimately oversee all decisions made on behalf of the company and accept liability for the outcomes of those decisions.
If you would like any further information about this case or directors’ duties broadly, please do not hesitate to contact the authors of this article.

In response to COVID-19, the Victorian Government has issued a “Stay at Home Direction" which requires Victorians to stay at home other than in specified circumstances. One such circumstance is to meet any parenting obligations in shared parenting agreements.
This is the case whether the arrangement has been made under a court order or has been made informally.
One aspect of this direction is that people stay in the place where they ordinarily reside. Importantly, where shared parenting arrangements are in place with respect to a child or children, they will be considered to be a member of each parent’s premises for the time the child stays with them.
It may be the case however that strict compliance with parenting agreements is not possible; for example, if "handover" arrangements usually occur at a school or public place that is now closed, or in circumstances where a parent is to spend time with a child other than at home.
If a supervisor is required for compliance with a parenting order, health requirements which limit the number of people at gatherings does not prevent supervision from occurring, however the location for which that time is to occur may need to be varied if time normally occurs in a public place.
Where parenting arrangements cannot be strictly complied with, parents are encouraged to work together to come up with a practical solution so that parenting agreements can still be complied with. The Family Court and Federal Court have issued a statement that suggests any short term adjustments or arrangements should be put in writing, even if this is only via text message or an appropriate parenting app.
The Stay at Home Direction is currently valid until midnight on 13 April 2020 and at this stage will be in force over the Easter weekend.

Directors’ liabilities
The COVID Act inserts section 588GAAA into the Corporations Act 2001 (the Act), “Safe Harbour—Temporary Relief in response to the Coronavirus". Under this section a director will not be personally liable for insolvent trading in respect of a debt incurred:
(a) in the ordinary course of the company’s business; and(b) during the 6-month period starting on the day the section commences (or any longer prescribed by the regulations).
Therefore, during the prescribed 6-month time frame, directors will be relieved of the risk of a personal liability for insolvent trading, with respect to debt incurred in the ordinary course of the company’s business.
How one classifies "debt incurred in the ordinary course of the company’s business" is, in these testing times, still open to interpretation. Even more so, given that the amendments are silent on debts incurred that are not in the ordinary course of carrying on the company’s business. Nevertheless, section 588GAAA suggests that directors will not be personally liable for such debts as would normally be the case under the insolvent trading regime prior to 25 March 2020.
Directors should be mindful that other directors’ liabilities under the Act, and generally, have not otherwise been amended.
Creditors’ statutory demands
The COVID Act amends section 459 of the Act and regulations so that for the next 6 months:
(c) The monetary threshold to issue a statutory demand has increased so that a statutory demand may now only be issued on a company by creditors for a debt of $20,000 or more, instead of the previous amount of $2,000.(d) The time limit to respond to a statutory demand has been extended so that companies now have six months to respond to a statutory demand, instead of the previous 21 days.(e) The amendments to the Act will only apply to statutory demands issued on or after 25 March 2020 and will not apply retrospectively. (f) The amendments to the Act will only apply for six months starting 25 March 2020, unless that period is extended.
Bankruptcy notices
Similarly, the COVID Act amends the Act, the Bankruptcy Act 1966 and the Bankruptcy Regulations 1996 so that for the next 6 months:
(g) The monetary threshold, being the debt required before a creditor can initiate bankruptcy proceedings against a debtor has increased from the current amount of $5,000 to $20,000. (h) The time limit to respond to bankruptcy notices has been extended so that debtors now have six months to respond to a bankruptcy notice, which was previously 21 days.(i) The amendment will apply to bankruptcy notices filed on or after 25 March 2020. (j) Bankruptcy notices issued prior to 25 March 2020 will only be provided the 21-day response period for compliance.

Overview
In Park v LOTW Indro Pty Ltd [2020] FWC 858, Deputy President Asbury considered whether Mr Park, a chef in a shopping centre restaurant, Lord of the Wings, had been unfairly dismissed when his manager did not roster him onto shifts for two consecutive weeks.  
Mr Park’s omission from the roster came immediately after he left work early due to an illness, which was later supported by a medical certificate.  When Mr Park confronted his manager about this, his manager replied that he “can’t guarantee" that he would be put back onto the roster in future and that they had previously spoken about Mr Park’s "reliability problems".
Mr Park then filed an unfair dismissal claim against Lord of the Wings alleging that his manager’s failure to roster him for any shifts constituted a dismissal (the date of which was when he confronted his manager about the relevant rosters) and that the reason for the dismissal was invalid as it was because of his temporary illness.
In response, Lord of the Wings argued that Mr Park had not been dismissed — he was still marked on their system as available to be offered shifts and had, in fact, been offered hours after filing his unfair dismissal claim, which were rejected by Mr Park.  It also said that Mr Park’s manager had no authority to terminate Mr Park’s employment.
The issue
The critical issue was whether the above circumstances gave rise to a dismissal.  Under s 386(1) of the Fair Work Act 2009 (Cth) (Act), a dismissal occurs where:

the person’s employment with his or her employer has been terminated on the employer’s initiative; or
the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

The finding
In examining several authorities on the meaning of "termination at the initiative of the employer", DP Asbury concluded that the ordinary meaning of the phrase, as used in the Act, is a termination that is brought about by an employer and is not agreed by the employee.
Applying this meaning, the Commission concluded that Mr Park was dismissed within s 386(1)(a) of the Act.  DP Asbury also rejected Lord of the Wings’ submission that the manager had no authority to dismiss Mr Park.
"It is well established that a reduction in hours or pay for a casual employee can constitute termination of employment  at the initiative of the employer. In the present case, Mr Shrestha [the manager] had responsibility for rostering casual  employees in the Respondent’s kitchen and authority to determine whether to offer shifts to casual employees. Mr Shrestha  also had authority to decide to hire or at least give shifts to new employees instead of offering shifts to existing employees…  The evidence establishes that the Applicant had worked hours in accordance with a roster each week from the commencement  to the cessation of his employment…"
Accordingly, the reduction of hours to zero in two consecutive weekly rosters constituted a dismissal in these circumstances.
In considering whether the dismissal was unfair (i.e. harsh, unjust or unreasonable), the Commission held that Mr Park’s "reliability problems" were connected to his leaving his shift on one occasion due to an illness.  This did not, in its view, form a sound, defensible or well-founded reason to justify dismissal.  Furthermore, Mr Park was not given the opportunity to respond or correct his conduct, as he was not informed about these issues prior to his dismissal. 
Accordingly, DP Asbury concluded that the dismissal was unfair and ordered that Lord of the Wings pay Mr Park $4,482.60 in compensation.
Key take-aways
This case serves as a cautionary reminder that casuals are not entirely exempt from unfair dismissal laws.  Many ill-informed managers consider that casual employees can be engaged entirely at their will and can be lawfully dismissed — for any reason — by simply not offering them any further shifts.  This case highlights the fallacy in that logic.  Instead, employers should:

ensure managers, or those with authority to allocate rosters, are appropriately trained and informed that their actions could lead to an unfair dismissal claim; and
closely examine the reasons for every dismissal (even casuals) to mitigate or eliminate the risk of an unfair dismissal application.

This will be welcome news to many employers who have been hard hit by the COVID-19 crisis. However, the announcement of the scheme in advance of legislation being drafted or detailed guidance materials being published has raised many questions, including how the payments will interact with employees’ existing contractual and legislated entitlements.
In this update, we provide a brief overview of the scheme and discuss some of the employment law questions which it generates.
Overview
Eligible employers will be able to claim a fortnightly wage subsidy of $1,500 (before tax) per eligible employee from 30 March 2020 for a maximum period of six months.
Eligible employers
Employers will be eligible for the subsidy if their business:
(a) has a turnover of less than $1 billion and their turnover will be reduced by more than 30 per cent relative to a comparable period a year ago (of at least a month); or
(b) has a turnover of $1 billion or more and their turnover will be reduced by more than 50 per cent relative to a comparable period a year ago (of at least a month).
The Big 4 banks and Macquarie Bank are excluded from the scheme. Otherwise, the intention appears to be that all other employers will be potentially eligible, regardless of whether they are a company, charity, partnership, statutory corporation, individual or another type of entity.
Eligible employees
To be eligible, employees must:
(a) have been employed by the relevant employer at 1 March 2020;
(b) continue to be employed (this could include employees who have been laid off since 1 March if they are re-hired);
(c) be full-time, part-time, or casual with at least 12 months’ service; and
(d) not be receiving a JobKeeper payment from another employer.
Key employment law issues arising from the scheme
Will employees who have been stood down be eligible for the payment as well as those still working?
Yes – this is the clear message from the Government in its announcements and the limited guidance from Treasury so far.
At this stage, there does not appear to be a proposal for any form of middle ground, e.g. to allow an employer to reduce an employee’s wage and/or hours so that they are still working but only earning $1,500 per fortnight. We consider this is unlikely given that it would usually be prevented by an employee’s contract and/or applicable industrial instrument – unwinding this would be very complex.
As such, while employers will receive the payments for stood-down employees and those working as normal, any arrangement to reduce an employee’s hours and wage to bring these into line with the subsidy will likely need to occur by agreement (unless this is already allowed by the employee’s contract or applicable award/enterprise agreement).
What if an employee ordinarily earns less than $1,500 per fortnight?
If an employee earns $1,000 per fortnight, an eligible employer will still receive (and be required to pass on) a subsidy of $1,500 per fortnight. However, only the employee’s usual wage of $1,000 per fortnight will attract superannuation. The Government has said that employers may choose to pay super on the additional amount if they wish.
What about employees who have already been let go?
There will be many eligible casual employees whose employment has already been terminated. There will also be some ongoing employees who have been dismissed on the grounds of redundancy since 1 March 2020.
The Prime Minister announced that such employees could be put back on the books and would then become eligible for the bonus, but cautioned: 
“There would be the issue that if they have paid out any entitlements under [their enterprise] arrangement … that would have to be sorted out, obviously, with the employer."
There will be risks and complexities to be worked through in order to give effect to such an arrangement. It is likely that a Deed will be required to deal with matters such as the retraction of the dismissal, the status of the intervening period (e.g. will it count as service?) and the repayment of any redundancy entitlements in a manner which does not disadvantage the employee.
Please reach out should you have any questions about the above or would like further advice regarding employment law issues arising from COVID-19.

Due to the impact of the COVID-19 pandemic, on Saturday 28 March 2020, the Full Bench of the Fair Work Commission temporarily varied the Clerks – Private Sector Award 2010 (Clerks Award) until 30 June 2020 (at this stage). The changes provide more flexibility for employers and employees.
Employers covered by the Clerks Award should take note of the following effective changes. Employers can:(a) now direct employees to perform alternate duties that are within their skill and competency. Payment rules apply if the work is above, or below, the employee’s usual classification. Employers will need to observe individual employment contract terms and seek consent to vary where necessary. (b) now roster casual and part-time employees who are working from home for a minimum of two consecutive hours per shift (down from three hours).(c) with the agreement of permanent employees reduce employees’ ordinary hours of work for a specified period not beyond 30 June 2020. (At least 75% of the employees in the workplace (or in the relevant section of the workplace) must approve any agreement to temporarily reduce ordinary hours. This will be determined by a vote of employees. Certain rules apply to the conduct of the vote.)(d) direct an employee to take annual leave with one week’s notice (or less if the employee agrees). Employees can also agree to take up to twice as much annual leave at a proportionally reduced rate (i.e. employees can agree to take up to double the amount of leave at half the rate of pay).
This temporary Award variation does not prevent an employer and individual employee agreeing in writing to reduce the employee’s hours of work or moving the employee temporarily from full-time to part-time hours.
Employees working reduced hours under the Award variation will continue to accumulate paid leave and termination of employment entitlements based on their ordinary hours of work prior to the commencement of the variation. 
If an employer closes down their operations before 30 June 2020, they can direct employees to take annual leave. If an employee does not have enough annual leave to cover all, or part, of the close-down period, then the employer may direct the employee to take unpaid leave once their annual leave has been exhausted.

Please do not hesitate to get in touch with us if you have any questions arising from the above or would like further advice or assistance about the risks and benefits of implementing these changes in your workforce.

The current lack of clarity on how obligations to pay rent will be treated across the various real estate sectors, is delaying landlords and tenants from implementing the Government’s desired approach to commercial parties cooperating to reach sustainable, workable and commercial outcomes that are fair to both parties.
While the Federal Government undoubtedly faces an incredibly complex challenge in managing the fast-moving health and corresponding economic crisis created by COVID-19, there is one critical question that urgently needs to be addressed:
Will tenants be entitled to a rent abatement for a defined period during the crisis?
Without clear and unequivocal direction from the Federal Government on this question, the commercial real estate sector is caught in a “who blinks first" conundrum about financial lease liabilities.
Where parties do not reach a commercial agreement, they must try to frame contractual and common law arguments to defend their respective positions – tools which are not necessarily well suited to address the pandemic environment. Should tenants simply cease paying rent? Should they vacate buildings (where remote working is possible) in order to protect their staff, or do they remain in physical occupation hoping that the landlord or Government closes the building and in doing so, strengthens the tenant’s argument for rent relief?
We are already seeing landlords and tenants negotiating on interim arrangements surrounding financial liabilities under leases. However, firm outcomes are being delayed as parties hesitate to conclude those discussions for fear of disadvantaging themselves ahead of final Government regulation.
Regulatory clarity, particularly for tenants with large national leasing portfolios (in any sector) would help landlords and tenants reach agreement over the coming months of the COVID-19 crisis. While there are many positive examples, we encourage State and Federal Government to co-operate even further to provide consistency across all jurisdictions and in doing so, assist in the streamlining and fast tracking of commercial agreements between landlords and tenants on lease financial liabilities.

The rapidly evolving nature of COVID-19 and accompanying challenges has greatly renewed focus on the power to stand down employees. Employers such as Qantas, Virgin Australia, Flight Centre, Myer, AFL, NRL, Cotton On Group, and Country Road have stood down thousands of employees across Australia.
What is a stand down?
Employees who are stood down do not perform work for their employer and are not paid while stood down. However, the employees remain employed. 
Contracts of employment and industrial instruments, such as enterprise agreements, may contain stand down provisions. If this is not the case, employers may then turn to the Fair Work Act, specifically section 524. 
Why would I stand down my employees?
For employers, standing down employees may be preferable to the harsher alternative of termination of employment by way of redundancy. However, the financial impact on employees is likely to be significant as they are unpaid, particularly if the stand down is for an extended period of time.
Can I stand down my employees?
If an employer is considering a stand down of employees, the starting point is to review the contracts of employment and any applicable industrial instrument to determine whether they contain a stand down clause. If there is a stand down provision, the employer is required to follow it. For example, an employer may be required to consult with the employees it is considering standing down in respect of mitigating the impact.
If the contracts of employment and any applicable industrial instrument do not contain a stand down clause, then the employer would need to rely on the Fair Work Act to stand down employees.
The bar to meet before employees can be stood down under the Fair Work Act is high. 
Employees may be stood down: 

during a period in which the employee cannot usefully be employed;
because of a stoppage of work for which the employer cannot reasonably be held responsible.

Consideration of the above factors would involve a question of fact on a case-by-case basis. A direct causal connection between the stand down and the reason for the stand down is required.
A general reduction of work, for example, because of an economic downturn, is unlikely to be sufficient to stand down employees.
Employers also need to consider whether:

the employees under consideration could be usefully employed elsewhere in the business, including assessing any opportunities for redeployment; and
the cause of the stoppage of work is something for which the employer cannot reasonably be held responsible. For example, government-mandated closure of non-essential services may be considered a cause of a stoppage of work for which the employer cannot reasonably be held responsible. 

If the employees are covered by a modern award, the employer may also have consultation obligations in relation to a major workplace change.
An economic downturn isn’t a legitimate reason?
This is confusing to some so it might help to use a hypothetical, reiterating that every real world situation should be assessed on a case-by-case basis and individual legal advice should be sought.
Say it’s 2025 and you are the owner of a chain of restaurants. You don’t have an enterprise agreement or employment agreements that mention “stand down”. Due partially to a national economic downturn, you are seeing fewer customers visiting several of your restaurants, and decide that you will shift to a strategy of making these restaurants deliver-only kitchens. In this instance, it is highly unlikely that it would be lawful to stand down your waitstaff, since while you might not be doing well financially there is no inherent reason you are prevented from running your business more generally.  
A stand down is not applicable to situations where the essential issue is ‘less than ideal business circumstances’. There is no “stoppage of work” in this scenario as required by the Fair Work Act. Your business can still run. The fundamental issue is lower revenue with which to pay staff. You could potentially make some of your staff redundant, but even there you would have to see if there was an opportunity for them to switch to delivery roles. 
Now imagine you are that same owner in 2020 and the government has put restrictions put in place to slow the COVID-19 pandemic that means you are not legally permitted to run a sit-in restaurant. You can still deliver food though. In this example, you are more likely to be allowed to stand down waitstaff for so long as the government is limiting you from running that aspect of the business. Here again, you would need to see if some staff could be retained in the delivery function. The main distinction with this 2020 scenario compared with the 2025 one is that some work is simply not allowed to take place, and your business cannot be held reasonably responsible for the stoppage of work.
Can a stand down be challenged?
A stand down may be challenged by application to the Fair Work Commission. The consequences of unlawfully standing down employees may involve an order to back pay employees for lost wages during the unlawful stand down, an order to back pay any annual leave taken, and the employees may have a right to return to useful work. If any such orders are made and breached, the employer may also be liable to pay pecuniary penalties. 
Can employees access paid leave entitlements while stood down?
Generally, employees may access accrued annual leave and long service leave during a stand down. This could significantly reduce the financial impact on employees.
The legal position in relation to employees accessing paid personal leave is less clear and specific legal advice should be sought regarding this.
Additionally, stand down periods count as periods of service under the Fair Work Act, meaning that employees are entitled to continue to accrue service-based leave when stood down. 
Conclusion
If adopting flexible work arrangements such as remote working or an altered roster are impractical for your organisation and cannot prevent a stoppage of work, consider whether your organisation can lawfully stand down employees according to the applicable contracts of employment or an applicable industrial instrument, or in accordance with the Fair Work Act. 
Careful consideration should be given on a case-by-case basis as to whether the stoppage of work genuinely renders employees incapable of being usefully employed. It is strongly recommended that you seek legal and financial advice if your organisation is contemplating a stand down. 
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This article is part of a regular employment law column series for HRM Online by Workplace Relations & Safety Partner Aaron Goonrey and Lawyer Victoria Cook. It was first published in HRM Online on 30 March 2020. The HRM Online version of this article is available here.

Under the Child Support (Registration and Collection) Act 1988 (Cth), parties can apply to the Child Support Agency for enforcement of any child support debt owed to them. However, this is usually limited to three months of unpaid payments (increasing to nine months in exceptional circumstances).[1] 
However, for parents who are owed a lengthier period of arrears, there is the option of applying to the Federal Circuit Court of Australia (FCC) for an enforcement order.
Under section 106 of the Family Law Act 1975 (Cth) (FLA), there is no need for a party to show special circumstances to justify the enforcement of arrears, merely because the debt is greater than 12 months old.
In a 2016 FCC decision, the (now) Honourable Justice Stewart referred to an earlier decision by the Full Court of the Family Court of Australia[2] where it was held that the Courts have an unfettered discretion not only as to whether a child support debt should be enforced but also as to what period of arrears.
Her Honour further outlined the factors that Courts will take into account when determining whether to enforce child support debts:[3]
(a)          whether the party obliged to pay child support (the Payer) knew or ought to have known of his/her obligation to pay;
(b)          whether the party entitled to child support (the Payee) pressed or pursued — directly or indirectly — his/her rights to the same, and whether the Payee did so in a timely fashion;
(c)           whether, by words or conduct, the Payee led or permitted the Payer to form a reasonable view that the Payer’s obligations to pay child support would not be enforced, and whether the Payer was thereby induced, whilst acting in good faith, to change his/her financial position;
(d)          whether, by words or conduct, the Payer led or permitted the Payee to form a reasonable view that the Payer’s obligation to pay child support would be met, and whether the Payee was thereby induced, whilst acting in good faith, to change his/her financial positions;
(e)          whether the Payer had appropriate and/or adequate reasons for failing to pay;
(f)            the financial circumstances of the Payer, the Payee and the children during the period of non-payment; and
(g)          whether the Payer and Payee have made full and frank disclosure of their financial positions respectively.
Courts have also previously held that there are important public policy reasons to enforce child support debts with long periods of arrears, so as not to create the rule that ‘avoid the order long enough and it will be defeated’.[4]
Ultimately, her Honour ordered the Respondent to pay the full child support debt owed within 60 days.[5]
Key learning
Although Courts can enforce child support debts that are greater than 12 months in arrears, a relevant consideration is whether the Applicant acted in a timely fashion in order to enforce the debt. We therefore recommend that parties take swift action, either through the Child Support Agency or the Courts to enforce debts owed to them.
If parties choose to go through the Courts, there are a number of procedural steps that have to be taken to commence proceedings and  we recommend applicants seek legal advice.

[1]Child Support (Registration and Collection) Act 1988 (Cth) section 28A.

[2]Mathieson & Hamilton [2006] FMCAfam 238

[3]Child Support Registrar & Garaty [2016] FCCA 2078, [45].

[4]Wreford v Caley [2010] FamCAFC 21, [101].

[5]Child Support Registrar & Garaty [2016] FCCA 2078, [1].
 

As family lawyers, we are acutely aware that our clients are often stressed and anxious whilst going through separation and the resolution of parenting and property matters.  It’s an understandable and normal reaction to difficult personal circumstances.
With COVID-19, and the significant upheaval we are all are experiencing, we know that stress and anxiety levels are likely to be heightened even further.  For many people going through separation, concerns extend to the difficult job of explaining the almost daily changes in how we live, to their children. 
For parents looking for guidance in speaking with their children about COVID-19, we’ve found the following articles to have some helpful, practical advice, such as teaching good hand hygiene (sing “Happy Birthday" twice while washing hands — with soap!), sticking to routines as much as is possible, limiting exposure to media, and keeping information developmentally appropriate.
https://childmind.org/article/talking-to-kids-about-the-coronavirus/
https://raisingchildren.net.au/guides/a-z-health-reference/coronavirus-and-children-in-australia
https://edition.cnn.com/2020/03/16/opinions/telling-my-kids-about-coronavirus-bolduan/index.html
These articles talk about managing our anxiety as parents — before we speak with our children. This can be a really tough thing to manage, if you are already feeling stressed and anxious about your separation. 
For adults, it is important to continue to access support which can help deal with stress and anxiety. There are online resources available, such as:
https://www.beyondblue.org.au/
https://mindspot.org.au/
https://thiswayup.org.au/
https://www.lifeline.org.au/
Additionally, many psychologists and counsellors are continuing to see patients through this period. You can approach your General Practitioner for a mental health care plan, which will allow you to obtain a Medicare rebate for sessions with a clinical psychologist. General information about Medicare cover for mental health care can be found here:
https://www.servicesaustralia.gov.au/individuals/subjects/whats-covered-medicare/mental-health-care-and-medicare
In light of the current COVID-19 situation, the Australian Government has temporarily extended rebates for bulk-billed mental health services to those who are isolated on the advice of a medical practitioner or in accordance with government directives, those who meet testing guidelines, people over 70, Aboriginal and Torres Strait Islander people over 50, those who are immunocompromised or with chronic conditions, and parents who are pregnant or have new babies.  For more information see:
https://www.health.gov.au/sites/default/files/documents/2020/03/covid-19-national-health-plan-primary-care-bulk-billed-mbs-telehealth-services_2.pdf
It’s important to take care of not only your physical health, but also your mental health, while this situation persists.  If you have concerns about how COVID-19 will impact your family law matter, please contact Lander & Rogers.

The rapid spread of coronavirus in Australia and overseas has undoubtedly caused considerable alarm and panic. The response to the virus has been unprecedented and has affected almost every aspect of day-to-day life for Australians.  For separated parents, there are additional challenges to navigate.  Although the situation is changing daily, there are some issues that separated parents need to give consideration to at this time.
Parenting Orders
Firstly, coronavirus of itself is not necessarily a good reason not to abide by any parenting orders or parenting plans that are presently in place.  Parenting orders are binding on both parties, irrespective of what may be happening in society at large. A parent who breaches a parenting order, then relies on the coronavirus as an excuse, may find themselves facing a contravention application and the serious consequences that may follow.
If however, the child is unwell and exhibiting serious symptoms, this may give rise to a reasonable excuse for contravening parenting orders. Appropriate medical advice would need to be obtained and provided to the other parent. Certainly, if a parent is unwell, or if they have been in close contact with someone diagnosed with coronavirus, this may also give rise to a reasonable excuse for a contravention of parenting orders.
It is to be expected however that Court will not look favourably upon parents using coronavirus as an excuse to breach parenting orders without there being any genuine cause for concern.
Ultimately however, the Court is concerned with the best interests of children and if there is any risk, albeit a small one, that children may be exposed to the virus then the Court will likely decline to make a finding of contravention and to make appropriate and protective orders.
Parenting orders continue irrespective of whether children are attending school or day care/ kindergarten.  If educational facilities are closed, parents will need to abide by the Orders and reorganise their employment so as to be able to care for their children on their days or make alternate arrangements with the other party.
Parents may also wish to minimise the risk to grandparents and other carers at this time and may need to source alternate childcare arrangements.
Change Overs
It is not uncommon for parenting orders to provide for change over to occur in a public location such as a play centre, or local park.  Caution should be taken when exposing children to public areas at this time and consideration may be given to altering change over locations to a safer venue.
Some sporting and extracurricular activities are also cancelled at present.  If change overs occur at these events, then alternate change over mechanisms will need to be agreed.
Holidays
Any travel during the forthcoming Term 1 holiday period, including domestic travel, should be carefully considered and the risk evaluated.  It is to be expected that the Court will be especially cautious and that exceptional circumstances would need to be proved before a Court would entertain an application to travel overseas with a child at this time.  
Children who are presently overseas will be subject to the mandatory 14-day self-isolation period upon their return to Australia. This may mean, although it is not yet clear, that they are not able to spend time with the other parent during this period.
Court Proceedings
At present, the Family Court and the Federal Circuit Court remain open and are conducting their usual daily lists.  The situation is fluid however and litigants may need to prepare for adjournments of their hearing, or for hearings to be conducted by telephone, if appropriate.
At this time, parents should exercise common sense and caution and work cooperatively to ensure the health and safety of their children.
 
 

Lander & Rogers has advised ARA Logistics Venture 1 Limited (the investing entity) and its parent ARA Asset Management Ltd. on its acquisition (by both subscription and transfer) of a majority stake in the LOGOS Group and its related bodies corporate (together the Logos Group).  
As part of the deal, ARA Asset Management transferred its entire holdings in both the Cache Logistics Trust (a listed real estate trust) and the ARA investment management and asset management entities and roles to LOGOS. Through this transaction, the ARA group and the LOGOS Property Group have expanded their logistics real estate platform in the Asia-Pacific region.
Lander & Rogers advised on and prepared the FIRB application, and acted as lead counsel on the due diligence aspect of the transaction (including in connection with inception of the warranty and indemnity insurance policy). The due diligence concerned a target group of over 200 entities across multiple jurisdictions, and included analysis of key transaction and go-forward control, termination, fee security and other issues in respect of the more than 20 venture funds in which the LOGOS Property Group is invested. In addition, Lander & Rogers assisted international law firm Latham & Watkins to provide legal advice on multiple aspects of the transaction documents from an Australian law perspective.
Lander & Rogers’ Joint Lead Partners Jared Smith and Deanna Constable note:
“It is always a thrill to be working with a world class client, alongside world class lawyers in respect of world class assets. The LOGOS team has created a globally noteworthy business and we are privileged to have partnered with the ARA team as it creates this expanded AsiaPac property investment platform."
Client Relationship Partner John Wells said:
"We were pleased to be able to continue to support ARA’s rapid growth in the Australian marketplace across various sectors and transaction types. In particular it was a privilege to be entrusted by ARA with such a significant transaction involving numerous of our practice groups."
ARA Group CEO, Mr John Lim, said:
“This acquisition marks an exciting milestone for both ARA and LOGOS and we both look forward to expanding our logistics platform in Asia Pacific. LOGOS is one of the largest and fastest growing logistics real estate players in the region with a strong track record and its fund products are highly complementary to those of ARA. We will be able to offer our investors a comprehensive set of investment vehicles across the risk spectrum to meet their investment needs in the logistics real estate space via the new platform.”

Quick links

Introduction
Workplace safety
What
Why 
Who 
Where
How 
Business Continuity and Workforce management planning
Conclusion 
Further Reading 

Introduction 
The daily news bulletins are full of horror stories about the rapid worldwide spread of coronavirus (COVID-19). Travel restrictions, business and school closures, the first reported local deaths and panic buying at supermarkets are alarming and the news seems to be going from bad to worse. What started as a public health emergency has rapidly evolved to a potential economic crisis.
The Board of your organisation is worried and has asked for an urgent status update. The HR Director asks you to prepare a report for the CEO and Board on the people risks associated with COVID-19. You have identified two main areas of focus:

Keeping your people safe; and
Resource planning / business continuity.

Having assembled your team, including members from Operations, Finance, Communications and IT, you get to work. Given the rapidly changing landscape, getting up to date and having access to current, reliable information is critical.
You identify the websites listed at the end of this document as a good starting point. Next, you outline a communications plan for staff, contractors, suppliers and clients.
Workplace safety 
To prepare a plan to meet your safety obligations, you apply a risk management framework. One way to do that is to ask the following questions about the risks posed by COVID-19.
What? Why? Where? Who? How?
What?
The novel coronavirus is a respiratory illness caused by a newly identified virus also known as COVID-19. The symptoms range from mild cough to pneumonia. Some people recover easily, while others may get very sick very quickly. There is no cure at the moment. There is evidence that it spreads from person to person. It was first reported in late December 2019 in Wuhan City, Hubei Province, China. Its symptoms include fever, flu-like symptoms such as coughing, sore throat, fatigue and shortness of breath.
As of the date of writing, there have been 100 confirmed cases of COVID-19, including 3 deaths, in Australia. Worldwide, there have been more than 118,000 confirmed cases with more than 4,200 reported deaths. Many new cases continue to be reported worldwide, including from Iran, South Korea, Italy, Japan and Mongolia.
Government action
The World Health Organisation (“WHO") has recently upgraded the outbreak from a "public health emergency of international concern" to a "pandemic". 
The Australian Government has activated the Australian Health Sector Emergency Response Plan for Novel Coronavirus (COVID-19). The plan identifies COVID-19 as a significant risk to Australia with the potential to cause high levels of morbidity and mortality and to cause social and economic disruption. The plan is in its initial action stage involving monitoring and investigating outbreaks as they occur and taking steps to minimise the impact. More recently, the Prime Minister has foreshadowed an economic stimulus package to help protect Australians and the local economy from the damaging economic consequences of COVID-19.
The Australian Health Protection Principal Committee (AHPPC) has issued a number of statements on COVID-19, including recommending travel restrictions on people coming to Australia from mainland China and that people who have visited mainland China or have been in contact with any confirmed COVID-19 case be isolated in their home upon return to Australia for 14 days after leaving China or being exposed to the confirmed case. Recommendations have also been made by the AHPPC to have the federal government advise Australians not to travel to China and Iran and that travel to other countries such as South Korea, Italy, Japan and Mongolia be considered to be high risk.
Why?
According to WHO, COVID-19 spreads in a similar way to influenza, ie. someone with the disease coughs or exhales releasing droplets of infected fluid which can fall on nearby surfaces and objects. In this way, other people could catch COVID-19 by touching contaminated surfaces or objects and then touching their eyes, nose or mouth. If they are standing within one metre of a person with the virus, they can catch it by breathing in droplets coughed out or exhaled by the other person. While most people infected with the COVID-19 experience only mild symptoms and recover well, a small percentage go on to experience more serious illness and may require hospitalisation. Risk of serious illness increases with age and those with weakened immune systems or chronic conditions such as diabetes, heart or lung disease are also more vulnerable to serious illness.
Who?
Your plan will need to cover all workers in your organisation as well as visitors to your workplaces. Your initial focus should be on those who are at higher risk of transmitting or being exposed to the virus. The higher risk groups include those who have recently traveled to or transited through mainland China and Iran as well as South Korea, Italy, Japan, Mongolia, Thailand and Indonesia. Other high-risk categories are individuals who have been exposed to others with a confirmed case of COVID-19. Those categories of people in your organisation need to be "self-isolated" in their home for 14 days from the date they left China or other relevant country, or the date they were exposed to the confirmed COVID-19 case. Anyone in those categories should be directed to stay at home and not attend for work for the minimum quarantine period of 14 days. If they are able to work from home, then they should do so consistent with any working from home policy. If the employee cannot work from home and is not ill, then you will need to consider providing them with "special paid leave" for the period of their absence given that the direction not to attend work is the decision of the employer, not the individual.
For employees who display symptoms of the virus, you should direct them to seek medical attention immediately and to take sick leave. If they have no or inadequate sick leave available, you may agree they can take sick leave in advance, or they may choose to take other paid leave such as annual or long service leave, if available. Before they return to work, those employees should be asked to provide medical clearance from their treating medical practitioner. If they do not do so, you may consider directing them to see an independent medical practitioner for that purpose. This approach should apply not only to your employees, but also to contractors and visitors to your workplace, including clients.
Where?
Your plan will need to apply to all locations where your people work. Particular risks are likely to arise if you have workers on international travel, as well as those who might be exposed to large-scale events attended by many people. Your workplace may also extend to the homes of your staff members. You will need to be satisfied that those homes are safe and without risk to the health and safety of your employees before work commences. Any vehicles used by staff members during their employment can be a workplace too. You will therefore need to be satisfied that any such vehicle and its use by workers is safe and without risks to health. You may want to consider restricting all but essential travel and reminding workers at all times to comply with personal hygiene protocols, particularly around regular handwashing and sanitising and sneezing and coughing protocols.
How?
Physical wellbeing
As indicated above, your plan will need to carefully consider communication and consultation with staff and others attending your workplace. Consulting workers about health and safety matters is obligatory. It is a good idea to consider regular updates and putting signs around the workplace reminding people about relevant information, including where to get more information and personal hygiene protocols. Provision of hand sanitisers and the like should also be considered, as should putting in place protocols for cleaning workplace equipment that may be used by multiple people such as telephones, computers, other mobile communication devices as well as items such as keyboards, desks, tables, crockery and cutlery in canteens or kitchens, food containers and the like as well as bathroom and toilet fixtures and fittings.
You should review your working from home or flexible work policies to see if they need to be adjusted and to make sure they are fit for purpose. Remember to make it safe and easy for people NOT to come in. This may mean identifying groups who have an incentive not to report, like casuals who don’t have sick pay or contractors engaged on a no-work no-pay basis. Consider whether it is good risk management to pay them in advance and give them confirmed shifts in 14 days’ time, making reporting easier.
As outlined above, you will also need to consider the kinds of leave available to employees who may be affected by the virus including whether you need to provide special paid leave in cases where employees may be directed to work from home even though they are asymptomatic. Communication will be key and therefore it is vital that you include in your plan steps for consulting staff and communicating with them about action the organisation is taking to help ensure their safety at work, as well as giving them access to reliable information. Communication and consultation is also vital in keeping up to date with government action to determine how it might affect your organisation and its people.
Mental wellbeing
Your plan will also need to consider how you might provide support to help ensure the mental health and well-being of your workers. Given the high level of media reporting of the spread of the virus and the occasionally alarming newspaper headlines such as "virus could kill up to 100,000 Australians" AFR (3 March 2020), consideration should be given to reminding employees of any well-being programs in place in your organisation and services such as an Employee Assistance Program to help alleviate concerns, manage stress and reduce anxiety.
Other practical tips 

Consider possible IT solutions, like video software options for meetings where there may be a risk for high-risk groups (eg recent travellers, those exposed to confirmed cases of the virus, aged, carer for someone ill/aged, or those with pre-existing serious health conditions)
Have tech support available for IT/other support, eg how to use video software and a checklist on security options
Identify casuals and others who may have financial reasons to work when sick and consider changing the financial incentives
Workplace notices on personal hygiene and greeting options other than the traditional handshake 
Consider making flu shots available to staff to give them a sense of control over other possible illnesses that may be prevalent at this time of the year
Don’t put out unwrapped lollies, salt or other food items in open bowls, and limit share plates or add servers and small plates if catering is provided 
Stock up on toilet paper, as people may take it home (that is a joke!)

Discrimination
Some reports have emerged of people apparently of Asian appearance being discriminated against, harassed or vilified by others. Your plan should include reminders that COVID-19 is not racially based and that it is unlawful to discriminate against others based on their race or on characteristics attributed to people of that race. Failure to take reasonable steps to stop or prevent such regrettable behaviour may leave your organisation vulnerable to claims it is vicariously liable for any loss or damage suffered as a result.
Business Continuity and Workforce management planning 
While COVID-19 started life as a health emergency, it seems to be rapidly developing into a worldwide economic crisis. Media reports suggest the virus may result in a dramatic decrease in economic activity around the world, including Australia.
If so, and if your business and its supply chains are adversely affected significantly, then your planning will need to consider not only work health safety obligations and related matters but also how you might address a significant downturn in business activity. Your resource planning might need to consider how you schedule your labour requirements. Do you need to reduce contingent or casual labour? Do you need to consider imposing leave arrangements or at least discussing them with employees with a view to taking accrued leave? Are you able to redeploy any parts of your workforce? As a last resort, you may need to consider the potential for stand downs if your employees cannot be gainfully employed.
For example, s524 of the Fair Work Act 2009 (Cth) allows an employer to stand down an employee without pay in certain circumstances for a period when the employee cannot usefully be employed because of, among other reasons, a stoppage of work for any cause for which the employer cannot reasonably be held responsible. Stand downs should only be considered as a last resort and specific advice should be sought before doing so.
The prospect may also arise of potential redundancies.
Other elements of your plan will also need to consider business continuity and emergency planning. For example, how can business continue if, due to the virus, large parts of your workforce are required to relocate or are not able to attend certain premises or parts of your business? How will you continue to operate if your supply chain is significantly impaired or breaks down?
Conclusion 
Your draft plan is delivered. The CEO and Board are impressed. The plan is finalised, approved and implemented. Your new title is "Chief Crisis Officer".
COVID-19 is new, largely unknown, unpredictable and therefore very serious. Careful, considered and systematic planning will help you manage the people risks in your business and will stand you in good stead to deal with a rapidly-shifting COVID-19 landscape, as well as any future crisis that may emerge.
Further reading 
For further information on COVID-19, the following links are a good starting point: 

World Health Organisation
Commonwealth Department of Health
Safe Work Australia
Fair Work Ombudsman
Federal Department of Foreign Affairs and Trades – Smartraveller  

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Overview
The Victorian Parliament has made history, enacting the Gender Equality Act 2020 (Vic) (Act), which requires public service and public sector organisations, universities and local councils to publicly report on their progress against key gender equality indicators such as equal pay, sexual harassment, workplace composition and career progression practices.  They will also be required to challenge workplace discrimination by preparing and implementing Gender Equality Action Plans and undertake gender impact assessments and gender equality audits of their workplaces.
The legislation is the first of its kind in Australia and delivers on a key commitment of the Andrews Labor Government to put measures in place to achieve gender equality in the Victorian public sector.
Introduction
In late November 2019, the Victorian Parliament introduced the Gender Equality 2019 Bill (Bill) as a founding reform of the Andrews Government’s commitment to a “Victorian Gender Equality Strategy".  On 25 February 2020, the Bill was passed by Parliament and will come into effect on 31 March 2021.  The new laws will require public sector organisations, councils and universities to take positive steps towards achieving workplace gender equality and require them to promote gender equality in their policies, programs and services. 
The Act establishes the Public Sector Gender Equality Commissioner (Commissioner) to implement and monitor the progress of organisations under the new laws and seek compliance from organisations where necessary.
While the Act introduces measures to promote, encourage and facilitate progress towards achieving gender equality in Victoria, it also recognises that gender inequality may be compounded by other forms of disadvantage or discrimination — including Aboriginality, age, disability, ethnicity, gender identity, race, religion, sexual orientation and other attributes.  Organisations will be required to consider these other attributes when meeting their obligations under the Act.
To minimise the administrative burden, Parliament has intended that the reporting obligations under the Act align with other reporting obligations as much as possible, such as with the Victorian Public Sector Commission and the Workplace Gender Equality Act 2012 (Cth).
Who is covered by the Act?
The new laws apply to various organisations with 50 or more employees that operate within the Victorian public sector.  Specifically, the Act applies to:

public service bodies;
public entities;
special bodies;
councils;
Court Services Victoria;
universities within the meaning of the Education and Training Reform Act 2006 (Vic);
the Office of Public Prosecutions; and
any entity prescribed under regulations made in accordance with the Act,

(together, Defined Entities).
General duty to promote gender equality
Under the new laws, Defined Entities have a general duty to consider and promote gender equality in developing their policies and programs, and in delivering services to the public, or that have a direct and significant impact on the public. 
To comply with this duty, Defined Entities will be required to undertake a Gender Impact Assessment (GIA) of all new policies, programs and services that directly and significantly impact the public, as well as those up for review.  The GIA requires an analysis of the differential effects of policies, programs and services on people of different genders, and the steps that will be taken by the organisation to address those impacts.  If practicable, the GIA must also take into account that gender inequality may be compounded by disadvantage or discrimination that a person may experience on the basis of any of Aboriginality, age, disability, ethnicity, gender identity, race, religion and sexual orientation.
While this duty does not itself create a legal right or cause of action for any person, the Commissioner has the power to require Defined Entities to comply with their obligations under the Act.
Gender Equality Action Plans
As of 2021, the Act will require all Defined Entities to develop Gender Equality Action Plans (known as ‘GEAPs’) every four years.  Defined Entities will need to submit their GEAPs to the Commissioner on or before 31 October every fourth year, and publish their GEAPs on their website.  The process of developing a GEAP aims to help organisations identify gender inequalities across their workforce and develop strategies to improve gender equality outcomes in their workplaces over time.
As the starting point for the development of GEAPs, Defined Entities will be required to undertake a workplace gender audit by collecting data on the status of their organisation against gender equality indicators (prescribed in the Act and listed below).  Where possible, the audit will also need to take into account other forms of disadvantage or discrimination that a person may experience, as well as any quotas or targets set for that organisation in any regulations made under the Act.  
In preparing their GEAP, organisations must also consider gender equality principles (enshrined in the Act and described below); and must consult with the governing body of the entity, the employees, employee representatives and any other relevant persons.  Defined Entities will be required to dedicate adequate resources to the effective development and implementation of their GEAP.
Reporting on progress towards gender equality
Every two years after submitting their GEAPs to the Commissioner, Defined Entities will be required to undertake an internal review of the progress made by the organisation against the plan over the previous two years and submit a progress report to the Commissioner.  
The progress report must also address:

whether any policies, programs and services have been the subject of a GIA and the actions taken by the organisation to ensure the needs of persons of different genders are addressed;
the organisation’s progress towards improving workplace gender equality as measured against the workplace gender equality indicators; and
the organisation’s progress towards meeting any prescribed targets or quotas.

Once the progress report has been submitted to the Commissioner, the organisation must publish it on its website.  
To assist Defined Entities to understand their obligation to prepare a GEAP, we have prepared a visual guide at the end of this bulletin.
What are gender equality principles & indicators?
The Act enshrines gender equality principles and prescribes gender equality indicators that are required to be considered by Defined Entities in preparing their GEAPs, and will be used to measure their progress.  The gender equality indicators must also be used by organisations in undertaking their gender workplace audits.
The gender equality indicators in the Act are modelled on the indicators in the Workplace Gender Equality Act 2012 (Cth) and represent the key areas where workplace gender inequality persists and needs to be improved.  In addition to any indictors prescribed in regulations made under the Act, the workplace gender equality indicators are:
(a)  gender composition of all levels of the workforce and of governing bodies;
(b)  equal remuneration for work of equal or comparable value across all levels of the workforce, irrespective of gender;
(c)  sexual harassment in the workplace;
(d)  recruitment and promotion practices in the workplace;
(e)  availability and utilisation of terms, conditions and practices relating to:
(i)    family violence leave;
(ii)   flexible working arrangements; and
(iii)  working arrangements supporting employees with family or caring responsibilities, and
(f)  gendered segregation within the workplace.
 
In preparing their GEAPs, organisations must also consider the following ten gender equality principles.

All Victorians should live in a safe and equal society, have access to equal power, resources and opportunities and be treated with dignity, respect and fairness;
Gender equality benefits all Victorians regardless of gender;
Gender equality is a human right and precondition to social justice;
Gender equality brings significant economic, social and health benefits for Victoria;
Gender equality is a precondition for the prevention of family violence and other forms of violence against women and girls;
Advancing gender equality is a shared responsibility across the Victorian community;
All human beings, regardless of gender, should be free to develop their personal abilities, pursue their professional careers and make choices about their lives without being limited by gender stereotypes, gender roles or prejudices;
Gender inequality may be compounded by other forms of disadvantage or discrimination that a person may experience on the basis of Aboriginality, age, disability, ethnicity, gender identity, race, religion, sexual orientation and other attributes;
Women have historically experienced discrimination and disadvantage on the basis of sex and gender; and
Special measures may be necessary to achieve gender equality.

 
Gender quotas & targets
While they have not yet been drafted, regulations may be enacted at a later date to set targets and/or quotas relating to the gender equality workplace indicators for specific entities or classes of entity.  For example, regulations may be introduced under the Act to require that all university leadership teams have a quota of 50% women by 2024. 
If a quota or target is prescribed, organisations must make reasonable and material progress towards meeting the quota or target.  In assessing progress, the Commissioner will be required to consider the Defined Entity’s:
(a)  size and resources (including number of employees);
(b)  nature and circumstances, including any barriers to making progress;
(c)  obligations under any other legislation;
(d)  operational priorities and competing operational obligations;
(e)  ability to make progress (including practicability and cost); and
(f)  genuine attempts to make progress.
 
What happens if Defined Entities don’t comply?
In the first instance, the Commissioner will consult with the organisation to try to resolve the matter informally and work collaboratively with the organisation to support them to meet their obligations under the Act.
If informal measures fail, the Commissioner may issue compliance notices where a Defined Entity has failed to submit their GEAPs or progress report, or has failed to make reasonable and material progress in relation to gender equality indicators, targets or quotas.  A compliance notice can require the Defined Entity to take any action that is reasonably required to comply with the Act.
If a Defined Entity disagrees with the compliance notice, they will have 14 days to provide a written response to the Commissioner giving reasons for their disagreement with the notice.  If the Commissioner confirms the compliance notice, Defined Entities will be able to apply to the Victorian Civil & Administrative Tribunal (VCAT) for a review of the Commissioner’s decision.
Where organisations fail to comply with a compliance notice, the Commissioner has the power to:

accept an undertaking from the Defined Entity to take action to comply with the Act;
recommend that the Minster for Women take any action the Commissioner considers appropriate to ensure compliance with the Act;
publish online the name of the Defined Entity and the requirement of the Act that they have failed to comply with; and
apply to VCAT for an order directing the Defined Entity to comply with the notice.

Powers of the Public Sector Gender Equality Commissioner
The Commissioner’s primary purpose will be to promote and advance the objectives of the Act across the public sector, which will include providing educational and implementation support to Defined Entities, as well as monitoring, compliance and enforcement functions.
The Commissioner has also been given the power to undertake dispute resolution relating to a ‘systemic gender equality issue’ where the dispute is referred to the Commissioner in accordance with a term of an enterprise agreement or workplace determination of a designated body.
Key take-aways

From the commencement of the Act on 31 March 2021, public service organisations, universities and local councils will have a general duty to consider and promote gender equality in the design and delivery of public-facing policies, programs and services, including by undertaking gender impact assessments.
Public service organisations, universities and local councils will be required to undertake a workplace gender audit by 30 June 2021 and submit their Gender Equality Action Plans to the Commissioner by 31 October 2021. 
Organisations will be required to make reasonable and material progress in relation to workplace gender equality indicators and any prescribed gender equality targets and quotas.
Every second year after submitting their Gender Equality Action Plans, organisations must report to the Commissioner by 31 October on their progress and the action taken within the previous two financial years to address workplace gender equality indicators, targets and quotas.
If you are unsure whether these new laws will impact your organisation, do not hesitate to get in contact with a member of our Workplace Relations & Safety team.

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Imagine paying your employee $100K thinking that you are paying at least $40K over the amount they would have received under the award (keeping in mind that most awards only have hourly and weekly rates). There is just no way that you could be underpaying the employee given you have a ‘set off’ provision in the contract and you are a generous employer – I mean, there is $40K to make up any shortfall, right?
Well, think again…
Inadvertent Error or Corporate Crime?
One of the key complaints made by employers is that many of the underpayment errors are inadvertent mistakes – it’s just too hard to get across the 122 awards and of course, the amendments to those awards. And wait, you didn’t know about the decisions affecting annualised wage in awards that will take effect on 1 March 2020?
Well those inadvertent mistakes are bringing some employers to their knees. We have seen the Fair Work Ombudsman crack down on certain industries in relation to underpayments, which has caused significant reputational damage to otherwise strong brands in the marketplace.
The Federal government is also going to reform the industrial landscape, taking steps to introduce strong criminal sanctions to address wage theft by employers. Possible changes include increases to the already significant civil penalties under the Fair Work Act 2009 (Cth) and implementing criminal sanctions including up to 10 years’ imprisonment.
Is it still all too hard? Steps you can take:
The Australian industrial landscape is complex – there are no ways around this – but there are ways in which you can ensure that you do not get caught up in a wage theft scandal, including:

reviewing existing employment arrangements, including the classification of employees under modern awards and annualised ‘set off’ contractual arrangements to ensure compliance with applicable awards;
ensuring that you know what the applicable award entitlements are for each employee and that they are being remunerated for each pay period for such entitlements; and
rectifying any identified wage or salary deficiencies.

While this does sound burdensome (doesn’t everyone love a wage audit?!) taking the appropriate steps to address these issues will not only assist employers in ensuring they are paying employees correctly, but it will mitigate the risks of orders of backpay, penalties and for some, going into administration.
Lander & Rogers have developed systems and offerings in order to deal with these issues efficiently and practically. 
 

This article was first published in Peoplecorp’s HR spotlight on 25 February 2020. The HR Spotlight version of this article is available here.

Do you have annualised wages in your organisation? This guide will help you get prepared for the 1 March 2020 changes.
The concept of annualised wages under modern awards and their impact on existing employment arrangements has left many HR practitioners bewildered. There is one certainty – it is time to start assessing your employees’ existing annualised wage or salary arrangements with modern award obligations in mind. This will include reconciling the hours award covered employees work to ensure they are adequately remunerated for any award entitlements they should receive, even if they are paid a salary under a contract of employment.
The decision
In July 2019, the Fair Work Commission handed down a decision for annualised wages as part of its four yearly review of modern awards (the decision can be accessed here).  The decision requires employers to comply with certain new modern award annualised wage clauses from 1 March 2020 — but only in relation to employees who are paid an annualised wage, as opposed to a salary under a contract of employment. 
There are three different types of annualised wage provisions. For the purposes of this article, we will refer to the Clerks Award to illustrate the changes brought about by this decision.
Are you required to do anything differently? 
For full-time employees covered by a modern award and who are paid an annualised wage under that award (as opposed to a salary under a contract of employment), the answer is YES. 
From 1 March 2020, for employees who currently receive an annualised wage under a modern award, employers will need to comply with a new model award annualised wage clause that is effective in certain modern awards, such as the Clerks Award. The new annualised wage clause is more onerous and imposes a number of new record-keeping obligations on employers. 
By way of example, in the Clerks Award, employers need to:

advise the full-time employee who is to enter into the annualised wage arrangement and keep a record of:

the annualised wage;
the provisions of the award the annualised wage satisfies;
the method by which the annualised wage has been calculated including each component of the annualised wage and any assumptions made regarding overtime and penalties; and
the ‘outer limit’ of how many ordinary hours and overtime hours may be worked without requiring a payment in excess of the annualised wage. 

conduct a review to ensure the employee was paid no less than the amount the employee would have received under the award for the work performed over the year for which the annualised wage was paid (and if not, pay the employee the shortfall within 14 days). The review is to be conducted each 12 months from the commencement of the annualised wage arrangement and when the employee’s employment terminates; and
keep a record of all start and finish times, and unpaid breaks, which is signed or acknowledged as correct in writing by the employee (including electronically) for each pay period or roster cycle.

For other award-covered employees who are paid a salary under a contract of employment (including full-time employees covered by the Clerks Award), the answer is dependent on the current processes the employer has in place for monitoring hours worked. 
Set-off clauses
The new annualised wage provisions do not invalidate contractual set-off arrangements and do not preclude an employer from continuing to enter into such arrangements. However, employers must ensure that an appropriate set-off clause is included in the employment contracts for those employees, which covers and specifies all award entitlements for the employees for all hours worked. 
This will require many employers to record the start and finish times for their employees to ensure they are being paid what they would be entitled to under the relevant award for the hours they are working.
Most of the requirements under the new annualised wage clause are new obligations that are not required under the current annualised wage clause in the Clerks Award. 
If a contractual salary arrangement is entered into, there is no need for employers to comply with all of the requirements under the new annualised wage clause in the Clerks Award. However, employers must ensure that:

the employee’s contract of employment contains an appropriate set-off clause; and
the amount actually paid to the employee each pay period is enough to satisfy all payments under the applicable modern award the employee is entitled to receive for that pay period. 

If employers do not:

comply with the requirements under the new annualised wage clause in the Clerks Award for full-time employees who are paid an annualised wage; OR
pay contractual salaries that accurately and adequately compensate award-covered employees for actual hours worked per pay period, they could be at a serious risk of underpayment claims by employees. 

Accordingly, it is very important that employers have sufficient record-keeping processes in place to ensure they are paying award-covered employees an amount that covers all of the employee entitlements they would otherwise be entitled to receive.
 
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This article is part of a regular employment law column series for HRM Online by Workplace Relations & Safety Partner Aaron Goonrey. It was first published in HRM Online on 26 February 2020. The HRM Online version of this article is available here.