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The spread of COVID-19: What does it mean for employees and employers?

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In the wake of the Italian Prime Minister recently extending lockdown to its entire country in an effort to contain the spread of coronavirus (COVID-19), many Australians may be concerned about their employment and leave entitlements, should Australia find itself in a similar position.

Whilst there has only been 80 confirmed cases of COVID-19 (including 3 deaths) in Australia,[1] the World Health Organisation has recommended, for those persons who are in or having recently visited areas where COVID-19 is spreading, that you self-isolate by staying at home if you begin to feel unwell (even with mild symptoms such as headache, low grade fever and slightly running nose). So what does this mean in terms of your leave entitlements?

The National Employment Standards provide the minimum conditions of employment, including leave entitlements for all employees covered by national workplace laws. For every year of service, full time and part time employees are entitled to a minimum of at least 10 days of paid personal (sick)/carers’ leave, 2 days of unpaid carers’ leave (if needed) and 2 days of paid compassionate leave (if needed). It is important to note that whilst registered agreements, awards and contracts can set out different entitlements to paid sick and carer’s leave, these entitlements cannot be less than the minimum, as mentioned above. Casual employees are also entitled to 2 days of unpaid carer’s leave per occasion, and full and part-time employees can take unpaid carer’s leave if they have no paid sick or carer’s leave left.

Key takeaways for employees:-

  1. If you intend to take paid personal leave, then your employer can ask you to provide evidence to show that you took the leave because you were unable to work because of an illness or injury or needed to provide care of support to an immediate family or household member (because of an illness, injury, or unexpected emergency affecting the member). Evidence may include a medical certificate from a doctor, or a statutory declaration.
  2. If you are required to self-quarantine but have used up all your paid personal leave, then you can ask your employer to allow you to take annual leave to cover your absence from the workplace.
  3. The entitlement to long service leave is based on a qualifying period of continuous service. Employees are entitled to take 8.6667 weeks of paid long service leave after a period of 10 years’ continuous service. If your absence from the workplace may be lengthy, you can ask your employer to agree to the taking of long service leave if you have the required period of service.
  4. If you have used up all of your leave entitlements, but you are forced to self-quarantine (for example, by an authority), then you can ask your employer to continue to pay you, however, there is currently no obligation on the employer to do so.

Key takeaways for employers:-

  1. If an employer has a reasonable concern that an employee is sick (for example, that employee has recently travelled to or returned from a country or region that is at high or moderate risk for COVID-19 and are displaying symptoms of the virus), then they can:-
    • direct that employee to obtain a medical clearance before returning to work; or
    • direct that employee not to work during the risk period.

Where an employee is unable to provide a medical clearance, then that employee is considered unfit for work. In this situation, an employer can reasonably direct that employee to take sick leave. If the employee has exhausted their sick leave, then the employee should be entitled to unpaid personal leave. 

  1. If an employee requests to stay home from work as a precaution against being exposed to COVID-19, then these requests are subject to the workplace’s normal leave application processes.
  2. If an employee has used up all their leave entitlements, then you should consider whether to pay the employee their annual leave entitlements in advance (i.e before they have accrued any entitlement to the leave). Most modern awards provide that an employee can take a period of annual leave in advance if there is a signed written agreement in place between the employee and employer regarding the taking of annual leave in advance, specifying:-
    • the amount of leave to be taken; and
    • the date on which the leave will commence.
  3. The Australian Government Department of Health advises that employees who have returned from a country or region that is at high/moderate risk for COVID-19 cannot attend work if they work in a setting with vulnerable people. The Department of Health have advised that from previous experience with other coronaviruses, categories of people at most risk of serious infection include:-
    • people with compromised immune systems (e.g. cancer)
    • elderly people
    • Aboriginal and Torres Strait Islander people
    • people with diagnosed chronic medical conditions
    • very young children and babies
    • people in group residential settings
    • people in detention facilities
  4. Employers should provide information and brief all employees on relevant information and procedures to prevent the spread of coronavirus. Such information can be obtained from the Department of Health website.
  5. If an employer suspects that an employee has returned from a country or region that is at high or moderate risk for COVID-19 or they think they have been in close contact with a confirmed case of COVID -19, then they should inform that employee to remain isolated in their home.
  6. An employer can only direct an employee to take annual leave in some situations (for example, where an employee has accumulated excess annual leave or during a shutdown period). The rules about when and if an employer can direct an employee to take annual leave is set out in awards, registered agreements and employment contracts.
  7. Section 524 of the Fair Work Act 2009 (Cth) provides that an employer may stand down an employee, without pay, during a period where the employee cannot be usefully employed because of, for example, a stoppage of work for any cause for which the employer cannot reasonably be held responsible. The most common situation is severe and inclement weather.
  8. Other alternatives may include a work from home arrangement for at-risk employees.

Conclusion

Employers have certain obligations under work health and safety legislation to safeguard the health of all employees. In a situation where an employee has:-

  1. recently returned from a high or moderate risk area for COVID-19;
  2. is not displaying symptoms of the virus, and
  3. is able to produce a medical clearance,

but the employer seeks to take a cautious approach, the employer can direct the employee not to return to work for a certain period of time (the Australian Government Department of Health recommends 14 days from the date of leaving the high/moderate risk country/region). Where an employer directs an employee not to return to work for a specified period of time, an employer is unable to force the employee to take annual leave and the employee would be entitled to be paid ordinarily, whilst subject to the direction.

Employers should continue to take care by conveying to any employee who is directed not to attend work, that:-

  1. such approach is a precautionary one, and
  2. that the direction has not been given for any discriminatory reason.

Should you require any assistance with a workplace health and safety or employment issue, please don’t hesitate to contact Just Us Lawyers on 07 3369 7145 or via email to reception@justuslaw.com for further advice.

Written by Natalie Smyth


[1] Data obtained from the Australian Government Department of Health as at 11.00 hrs on 9 March 2020.


Casual Employment – means what it says on the box

Casual (adj): not regular or permanent. See also, chance, random, occasional, offhand, spontaneous.

Australian employment law contemplates three categories of employment status: full-time, part-time and casual, and to determine which category you fall in, it is usually as straightforward as checking your employment contract – or at least it should be.

While determining whether or not you are a full-time employee is usually straight-forward, the difference between part-time employment and casual employment is not so clear cut. The court will often look further than just the employment agreement to consider how the actual employment should be categorised.

For example, when I worked in retail I was hired as a Christmas casual. My employment had no end date, and my employer would change my shifts from week to week depending on the needs of the store, sometimes calling me in for additional shifts or letting me leave early if it was quiet.

After Christmas, I was kept on (yay!), still on a casual basis, and for a year or so I worked as many shifts as I could fit between study and sport. Over time, the days and times I worked became more regular, until I was working the exact same three shifts each week. It was around this time that I signed a new employment contract and was classified as a part-time worker. While my hourly rate was cut down a little, I was now guaranteed a minimum number of hours per week (but could still work more if necessary) and was entitled to paid sick leave and annual leave (including leave loading).

The above worked perfectly for me – I lived at home while I was a casual, but shortly after being made part-time I had moved out and started renting. I’m not sure that I would have been confident doing this without the security of part-time work, knowing that I had guaranteed income, even if I couldn’t work a shift and a minimum notice period in the end.

Importantly, even if I hadn’t signed that new employment contract once my hours became regular, I may have been properly classified as a part-time employee. The Full Federal Court has said that determining whether an employee is a casual employee ‘depends upon an objective characterisation of the nature of the particular employment as a matter of fact and law having regard to all of the circumstances’.[1] Such circumstances include the regularity of hours, and the anticipation of ongoing employment. The result in Skene was that, on termination of the Plaintiff’s employment the court found that they were entitled to be paid out their accrued leave entitlements.

Employers should therefore be careful to consider the actual needs of their business when deciding whether to classify an employee as casual. If the employer is satisfied that the employee will truly be employed on a casual basis, the hourly rate paid to the employee should compensate them for their lack of certainty and leave entitlements (and their contract should reflect this).

Casual employment can be beneficial to both an employee and an employer, however if you feel that the circumstances your employment fits better into the part-time category but being categorised as casual is enabling your employer to avoid giving you certain entitlements, please get in touch with our experienced employment solicitors by calling 07 3369 7145 or emailing reception@justuslaw.com.


[1] Workpac Pty Ltd v Skene [2018] FCAFC 131 (16 August 2018) at [159].

Written by Sarah Camm

(Image by “Oh Tilly”)


We are hiring!

Receptionist / Legal Assistant

The successful candidate will be managing our front desk and assisting our Team in the conduct and management of client files.

Duties include:

  • Reception duties including greeting clients and attending to incoming telephone calls and enquiries;
  • Collection and delivery of mail;
  • Ordering stationary;
  • Archiving files and maintaining Safe Custody records;
  • Opening files, data entry into Open Practice / Matter Centre;
  • Diary management and boardroom bookings;
  • Preparation of client invoices;
  • Drafting, formatting and amending court documents and other correspondence as directed by solicitors;
  • Arranging meetings and conferences;  
  • Assisting other team members and attending to all other administrative duties as required.

Candidates applying for the position must possess the following:

  • Professional personal presentation;
  • High standard of attention to detail, ability to multi-task and prioritise your workload;
  • Highly developed communication and interpersonal skills, verbal and written;
  • Daily attendance, punctuality and ability to work as a team member;
  • Ability to work under pressure and meet deadlines;
  • An open car licence and car is essential;
  • A commitment to develop your skills with the firm.

We have two offices, one at Wilston and another at Kelvin Grove.  You may be required to work from either location. 

If you can fulfil the above and believe that you would be successful in this role, please forward your resume to Nikki Barry at reception@justuslaw.com.


S87 Licence

Restricted “Work” Licence

By Sarah Camm

The countdown to Christmas is filled with many wonderful events, Christmas parties, family barbecues, and other opportunities to have a few cold drinks in the amazing weather Brisbane has to offer this time of year. It is important that employers and employees plan how to get home from the office Christmas party, and where possible arrangements are made to stay over at your mate’s house rather than driving home. But mistakes happen, and sometimes those mistakes can mean you are facing an extended period without a drivers’ licence.

If you need your drivers’ licence for work, you may be eligible to apply for a restricted licence under section 87 of the Transport Operations (Road Use Management) Act 1995 (Qld) (“TORUM ACT”).

There are a couple of important things to note regarding applying for a restricted licence:

  • you must apply for it, it will not be automatically granted
  • evidence in the form of an affidavit will be required from you, your employer and sometimes other family members setting out your circumstances
  • the application must be made and heard when you are disqualified, that is, when you are sentenced for the offence
  • the court will impose the conditions it sees fit when granting the restricted licence, and you must not drive a vehicle for other purposes or other than in accordance with the court’s orders
  • the court will take the granting of a restricted licence into account when sentencing you for the offence, which may result in a longer period of disqualification

To be eligible for a restricted licence you must satisfy the following criteria:

  • you must be charged with, and convicted of, one of the following offences:
    • drink driving, with a blood alcohol concentration (“BAC”) reading of less than 0.15
    • driving with a relevant drug in your blood or saliva
    • failure to provide a specimen of breath or saliva at the roadside (but not at the police station)
  • as a consequence of the conviction, you will be disqualified from driving
  • the court must consider you are a fit and proper person to hold a restricted licence, having regard to the safety of other road users and the public generally
  • extreme hardship would be caused to you or your family because you would be unable to earn an income. General hardship, such as an inability to take children to school or medical appointments will not satisfy this criteria, even if you are the only member of your family who drives.

You will be ineligible for a restricted licence if:

  • this will be your second conviction for a similar offence, or you have previously had your licence cancelled or suspended, in less than 5 years;
  • your BAC reading was 0.15 or higher
  • the offence occurred while you were driving for work purposes
  • the offence occurred whilst you were driving with a restricted licence
  • the offence occurred while you were driving a vehicle you were not authorised to drive
  • you are a learner driver or on your p-plates
  • you are unemployed

At Just Us Lawyers we can help put you in the best possible position to be successful in your application for a restricted licence. If you have been charged with a drink driving offence, and you will be unable to keep your job without being able to drive, contact our office on 07 3505 0355 for advice on whether you will be eligible for a restricted licence, and for assistance in making the application to court.


Things you need to know about the new GST Withholding Laws

BY NATALIE SMYTH

 

The Treasury Laws Amendment (2018 Measures No. 1) Bill 2018 received royal assent on 29 March 2018. The bill amends various tax legislation and requires some purchasers of real property to collect a seller’s GST liability at settlement and remit it directly to the ATO.

The bill was introduced following the 2015 senate enquiry on ‘Insolvency in the Australia construction industry” in an effort to reduce illegal phoenix activity by property developers. “Illegal phoenix activity is when a new company is created to continue the business of a company that has been deliberately liquidated to avoid paying its debts, including taxes, creditors and employee entitlements.”[1]

When did the new GST withholding obligations take effect?

The changes brought about by this new GST withholding legislation primarily affects Contracts entered into from and after 1 July 2018. The GST withholding requirements do not apply to Contracts entered into prior to 1 July 2018 provided that the consideration for the supply (other than a deposit) is first provided before 1 July 2020. Off the plan contracts entered into prior to 1 July 2018 could be affected if construction/plan registration is likely to be completed after the 1 July 2020 deadline.

What types of transactions are affected?

A Purchaser will have a GST withholding obligation if:-

  1. The supply is by way of sale or long-term lease; and
  2. The supply is of New Residential Premises or Potential Residential Land.

The withholding obligation will not apply, however, if the purchaser is registered for GST and acquires the property for a creditable purpose.

What is a Creditable Purpose?

“You acquire or import a thing for a creditable purpose if you acquire or import it in carrying on your enterprise (including acquiring or importing it in the course of the commencement or termination of your enterprise)” [2] If the property is acquired for private or domestic purposes, then it will not be acquired for a creditable purpose.[3]

What types of real property will be classified as New Residential Premises and Potential Residential Land?

Residential Premises will be New Residential Premises if they:

  1. have not been sold previously as a residential premises and have not been previously the subject of a long-term lease; or
  2. have been created through substantial renovations of a building – i.e whereby all (or substantially all) of a building is removed or replaced; or
  3. if they have been built to replace demolished premises on the same land.

Potential Residential Land means “land that it is permissible to use for residential purposes, but that does not contain any buildings that are residential premises.”[4] The withholding obligations only apply to Potential Residential Land if the land is created by a property subdivision plan and the land is zoned for residential use under the local government planning schemes. If the planning schemes permit a number of uses for the land, and one of those uses is residential, then the land will be classified as Potential Residential Land.[5] Potential Residential Land does not include land that contains any buildings for a commercial purpose.

When must the GST withholding amount be paid?

It must be paid to the ATO on or before the day that the consideration for the taxable supply is first provide.[6] Generally, the consideration is first provided on the Settlement Date.

How much is the withholding amount?

The withholding amount is generally 1/11th of the Contract Price, however, if the margin scheme applies, then the withholding amount will be 7% of the Contract Price. The Contract Price is the GST inclusive price stated on the Contract and does not take into account any normal adjustments to the Contract Price (for example, for rates or water).

If the parties had negotiated a reduction in the Contract Price, for example, in exchange for the satisfaction of a building and pest condition, then the Contract Price, for the purposes of calculating the GST withholding amount, would not be discounted by the agreed reduction.

Sellers Notification and Purchaser Notification Obligations  

Seller’s Notice

All sellers of residential property must issue a notice to a purchaser advising the purchaser whether they must make a GST withholding payment. This notice is not required, however, for supplies of New Residential Land or Potential Residential Land if the purchaser is registered for GST and is acquiring the property for a creditable purpose.

Sellers will need to conduct an A.B.N. search of the purchaser to confirm whether or not the purchaser is registered for GST, however, a seller can rely on a purchaser’s statement in the Contract as to whether the purchaser is acquiring the property for a creditable purpose.

If the purchaser is required to withhold the GST amount and pay it directly to the ATO, then the seller’s notice must state:

  1. the seller’s name and ABN;
  2. the dollar amount to be paid by the purchaser;
  3. when the amount must be paid; and
  4. the GST-inclusive market value of any non-monetary consideration.

The notice must be provided by the seller prior to the seller making the taxable supply. Even if the seller fails to notify the purchaser, the purchaser will still have a GST withholding obligation and must withhold the GST amount and remit it to the ATO on or before settlement.

Purchaser Notice

Purchasers also have an obligation to notify the Commissioner of Taxation of the GST amount payable on or before the due date for payment, and this is done via approved forms that are accessible via the ATO website.

What are the main implications for property developers and purchasers?

  • Property Developers will need to consider the cash flow implications resulting from the new GST withholding laws. Previously, developers enjoyed the benefit of retaining the GST component from settlement as cash, as the GST liability was not required to be remitted to the ATO until lodgement of their next BAS.
  • If a purchaser fails to comply with their GST withholding obligation on reliance of a seller’s incorrect notice and the ATO later deems that the supply was a taxable supply and that the purchaser should have withheld the GST and paid it to the ATO at the time of settlement, the purchaser could still be liable to pay the seller’s GST liability. It is therefore important for a purchaser to undertake reasonable enquiries as to whether the withholding obligations apply to the transaction and must not blindly rely on a seller’s notice in circumstances where it is evident that there is a GST withholding obligation.

If you are a property developer requiring assistance with contract drafting to ensure that your sale contracts cover the new GST withholding law notification requirements, then please don’t hesitate to contact our commercial solicitor Natalie via reception@justuslaw.com.

Alternatively, if you are a purchaser or seller of residential or commercial property in Queensland and you require advice with respect to the application of the new GST withholding laws, please don’t hesitate to contact our Residential or Commercial conveyancing departments via email on reception@justuslaw.com.

[1] https://www.ato.gov.au/General/The-fight-against-tax-crime/Our-focus/Illegal-phoenix-activity/

[2] Paragraph 26 of the GSTR 2006/4 Goods and Services Tax Ruling Goods and services tax: determining the extent of creditable purpose for claiming input tax credits and for making adjustments for changes in extent of creditable purpose

[3] Ibid, paragraph 27.

[4] Section 195-1 A New Tax System (Goods and Services Tax) Act 1999 (Cth).

[5] Paragraph 24 , LCR 2018/4  Purchaser’s obligations to pay an amount for GST on taxable supplies of certain real property.

[6] Subsection 14–250(4) Taxation Administration Act 1953 (Cth).


Getting to know Just Us …. Nikki Barry

NIKKI BARRY – OFFICE MANAGER

If you could sum yourself up in 5 words, what words would they be?

Feisty, Independent, OCD, Fun & Generous

Why did you choose the career path that you are currently in?

I am very process driven – legal forms and systems seemed like a good fit.  Every matter is different, so it can be very interesting and challenging work.

Who is the person you have learnt the most from?

I have so many amazing people in my life who have inspired me and who have been strong influences in a personal and professional capacity.

What advice would you give to a 13 year old you?

Smile and people won’t even notice the freckles.

Do you have a favourite quote?

“No experience is a wasted experience if you learn from it” – but I don’t know who said it.

Tell us something about yourself that would surprise us

More often than people realise, I actually hold my tongue.

Top 3 life highlights

  1. News that my son was successful in obtaining a diesel fitter apprenticeship
  2. My daughter becoming school captain
  3. Returning to Brisbane after an eight year tree change.

What advice would you give to recent new hires?

We all bring skills and experiences to the table, but we can all still learn something new every day.

What aspects of your role do you enjoy the most?

Finding more efficient processes to improve our service to our clients and to enable our employees to achieve a suitable work/life balance.

What books are at your bedside?

Nora Roberts “Shelter in Place” and Jean Clare’s “Never Give Up”.

What children’s character can you relate with most and why?

Some days Dory from Nemo “Just keep swimming, just keep swimming” but I hope more often Moana because she’s strong, driven and strives to chase what she believes in.

What do you enjoy doing most in your spare time?

Yoga and hanging out with my kids and friends – it’s all about the company.

When was the last time you laughed so hard you cried?

Surprise 50th birthday cruise for a friend in July – there were 20 of us and we laughed so hard for four days.

Where do you see yourself in five years?

Happy with my life and proudly watching my kids flourish as young adults.

Nikki has recently re-joined Just Us Lawyers as Office Manager after a tree change out west for the past eight years.  Nikki is a Qualified Justice of the Peace and is available to witness/certify documents during business hours – call 07 3369 7145 to arrange a time.