Changes to the Fair Work Act for Casual Employees: What you need to know

On 27 March 2021, the Federal Government amended the Fair Work Act dealing with casual employees to overcome the effect of recent federal court decision.

Section 15A has been included in the legislation which for the first time introduces a statutory definition of a casual employee.
A person is a casual employee of an employer if:

1. a) An offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and
2. b) The person accepts the offer on that basis; and
3. c) The person is an employee as a result of that acceptance.

In determining whether at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must only be had to the following conditions:

1. a) Whether the employer can elect to offer work and whether the person can elect to accept or reject work;
2. b) Whether the person will work as required according to the needs of the employer;
3. c) Whether the employment is described as casual employment; and
4. d) Whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.

The question of whether a person is a casual employee must be assessed on the basis of the offer of employment that is made, and the subsequent acceptance of that offer, and not on the basis of any subsequent conduct of the parties.

The inclusion of section 15A into the legislation provides some much-needed certainty for employers.

Although the question of whether or not an employee is a casual employee is determined the basis of the offer of employment that is made, the subsequent conduct of the parties may mean that the employee has a right to convert their employment from casual employment to permanent employment.

An employer who is not a small business employer is required to make an offer to a casual employee to convert their employment to permanent employment under section 66B of the Act if:

1. a) The employee has been employed by the employer for a period of 12 months; and
2. b) During at least the last six months of that period, the employee has worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time employee or a part-time employee.

The offer must be given in writing to the employee within 21 days of the end of the 12 month period.

The offer must be to convert to full-time or part-time employment depending on whether or not the employee has worked equivalent of full-time or part-time hours during the last six months.

The employer is not required to make an offer of employment to a casual employee if there are reasonable grounds not make the offer and the reasonable grounds are based on facts that are known, or reasonably foreseeable, at the time of deciding not to make the offer.
Reasonable grounds for deciding not to make an offer include:

1. a) The employee’s position will cease to exist in the period of 12 months after the time of deciding not to make the offer;
2. b) The hours of work which the employee is required to perform will be significantly reduced in that period;
3. c) There will be a significant change in either or both of the following in that period:

(i) The days on which the employee’s hours of work are required to be performed;

(ii) The times at which the employee’s hours of work are required to be performed;
which cannot be accommodated within the days or times the employee is available to work during that period;

1. d) Making the offer would not comply with a recruitment or selection process required by or under a law of the Commonwealth or a state or territory.

A small business, that is one that has less than 15 employees, is not required to make an offer of conversion.

If the employer decides not to make an offer to the employee or the employee has been employed by the employer for the 12 month period but has not worked a regular pattern of hours an ongoing basis in the last six months, the employer must advise the employee that it is not making an office employment and set out the reasons for not making an offer. The notice must be given within 21 days after the end of the 12 month period.

If an offer of conversion is made to an employee, the employee must give a written response to the employer within 21 days, accepting or rejecting the offer. If the employee does not give a written notice, the employee is deemed to have declined the offer.

An employee also has a right under the legislation to request their employment be converted from causal employment to permanent employment if:

1. a) The employee has been employed for a period of 12 months;
2. b) The employee has, in the six month period ending on the day the request is given, worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time or part-time employee; and
3. c) All of the following apply:

(i) The employee has not in the last six months refused an offer made to it by the employer;

(ii) The employer has not any time during the six month period given the employee a notice setting out that it had decided not to make an offer on reasonable grounds;

(iii) The employer has not at any time during the six month period given a response to the employee refusing a previous request made to convert their employment; and

(iv) If the employer is not a small business employer, the request is not made during the period 21 days after end of the 12 months since they commence employment.

If the employee does make a request, the employer must provide a response within 21 days. The employer must not refuse a request unless it consults with the employee, there are reasonable grounds to refuse a request and the reasonable grounds are based on facts that are known or reasonably foreseeable at the time of refusing the request.

An employer with existing casual employees needs to assess whether or not to make an offer by 27 September 2021 (6 months after the legislation was introduced) or 12 months after the employee commenced employment, whichever is earlier.

A number of modern awards also contain provisions regarding an employee’s right to convert, so an employer will need to make sure they review not only the Fair Work Act., but also the applicable award.

The legislation seeks to provide balance between employers and casual employees, by defining what is a casual employee and also includes a mechanism for a casual employee to convert to a permanent employee if they work a regular pattern of hours of work over an extended period of time.

There is also a new casual employment information statement, to be given to new and existing casual employees.

For new casual employees the statement must be given as soon as possible after the employee starts. For existing employees, if the employer is a small business, the statement must be given as soon as possible. All other employers must give the statement before 27 September 2021.

A copy of the statement can be found here.

Employers of casual employees will need to ensure they comply with the requirement to provide casual employment information statement
within the time required.

If you like further information or assistance in dealing with your casual employees, please contact Darren Miller on 9488 1300 or at darren.miller@culshawmiller.com.au.

The other parent is moving the children interstate without my consent. What can I do?

The decision regarding a child’s place of residence is a long-term decision. Parents generally have shared responsibility for long term decision-making for the children such as their religion, education, serious medical decision and other long-term matters, which includes the issue of residence.  Relocation, being the change of a child’s living arrangements which will make it more difficult for a child to spend time with either parent, is one of those issues that parents are required to discuss and make a genuine effort to settle between them.

The child’s relocation (interstate or otherwise) without the other parent’s consent requires urgent action. It is often the case that if a parent unilaterally leaves the state, taking the child or their children with them, it may be difficult to have them return depending on the circumstances. Immediate action should be taken to address the relocation, and advice should be sought.

From the perspective of a parent seeking a relocation with their children, it is important to obtain personalised and tailored advice to understand what can or cannot be done, the options available to you and the risk or consequences of particular actions being taken.

From the perspective of a parent opposing any relocation, there are preventative measures that can be put in place, which may stop any unilateral action being taken and there are recovery actions that can be taken if a unilateral relocation has occurred.

Should any of the above resonate with you or someone you know,  please contact the Family Law Team at Culshaw Miller Lawyers on (08) 9488 1300.

When are the children old enough to decide which parent to live with?

In a recent High Court of Australia decision, Bondelmonte v Bondelmonte, the Court upheld a decision by the Trial Judge that two children, 15 and 17 year old boys, were not able to permanently reside in New York with their father despite expressing a clear desire to do so. It is an important family law decision relating to the wishes of a child.

The case discusses the weight a child’s wishes should be given by Courts exercising their jurisdiction in children’s matters. The Court held that the best interests of the child are not always in line with what the child wishes; even for older children who may have the maturity to understand the impact of their decision. Their wishes should also be considered in a broader context according to the facts of the case.

In this case, the parents separated in 2010 and the original parenting orders provided for equal shared parental responsibility and allowing the children to choose the parent with whom they wanted to live.

The older boys lived with their father and their younger sister lived with their mother.

In January 2016, the father took the two boys on holiday to New York. The father determined that it was in his financial interests to remain in New York permanently and informed the boys’ mother through his solicitor that the boys would be remaining in New York with him. The mother filed an urgent application to secure the return of the boys.

At the initial hearing, Justice Watts considered that the father’s actions “have significantly prejudiced and almost certainly coloured any statements the boys may make whilst in New York.”

The Full Court of the Family Court dismissed the father’s appeal. The father appealed to the High Court.

The High Court had two primary questions to consider;

1. Whether Justice Watts made a mistake in not properly taking the children’s view into account; and
2. Whether the Court needed to consider the boy’s views in relation to alternate living arrangements in Australia if they did not return to live with the mother.

On the first question, the Court held that the boys’ wishes were properly considered, however, the weight attributed to these views was coloured by the father’s influence and this was a reasonable finding by the trial Judge.

On the second question, the Court noted that the law only required that the Court consider views that had been expressed by the children. As no views were formally expressed, the Court was not bound to consider these.

The child’s views, even a mature child, are a relevant consideration and may carry significant weight, but their views are not determinative as to what is in their best interests. It was therefore determined that it was in the boys’ overall best interests not to disrupt their relationship with their mother and sister.

Litigation Guardians & Family Law

Blog post by Jeremy Gitsham

A ligation guardian is an adult who acts in court for a person with an incapacity that renders them incapable of making decisions in their own best interests. Essentially, a litigation guardian steps into the shoes of a party to a proceeding if they lack legal capacity to manage their affairs.

Federal Circuit Court Rules
Rule 11.08 – Person who needs a litigation guardian

1. For these Rules, a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
2. Unless the Court otherwise orders, a minor in a proceeding is taken to need a litigation guardian in relation to the proceeding.

Litigation guardians can be family, friends or carers. It is important to note, that even if someone lacks capacity to conduct legal proceedings, they can still have enough capacity to choose their preferred guardian. However, pursuant to the Rules, the Court appoints litigation guardians.

Under the Rules, the Court can appoint a litigation guardian if he or she meets a number of criteria, including:

• being an adult, with no interest in the case adverse to the party’s interests; and
• is able to be fair and competently conduct the case; and
• consents to being a litigation guardian.

A litigation guardian is bound by the Rules and therefore must do all that is necessary to be done to act in accordance with the party’s best interests. This includes obtaining legal advice and doing what is required to try to resolve the matter.

Contact our family lawyers in Adelaide today for more information.

Why Guardianship and Powers of Attorney are an important part of your Estate Plan

Making an Enduring Power of Guardianship (EPG) and Enduring Power of Attorney (EPA) are an important part of the estate planning process, and they should be reviewed regularly as part of an estate plan.

An EPG allows a person to nominate who they want to make important lifestyle, care and medical decisions when they are no longer able to do so whilst an EPA allows a person to nominate who they want to make financial decisions on their behalf.

An interested person may make an application under the Guardianship & Administration Act (GAA) seeking orders appointing them, or someone else, as the Guardian and/or Administrator of a person (the Represented Person).  The Application is made to the State Administrative Tribunal (the Tribunal).

A key question in any application is whether or not the proposed Represented Person has already made an EPG or an EPA.  If so, then the Tribunal will not make an order unless it considers that the person or persons that have been appointed are not acting in the best interests of the Represented Person.

The GAA legislates a presumption of capacity, that is that each person is presumed to be capable of looking after their own health and safety, making reasonable judgements in respect of matters relating to their person, managing their own affairs and making reasonable judgements in respect of matters relating to their estate until the contrary is proved to the satisfaction of the Tribunal.

To displace the presumption of capacity requires clear and cogent evidence of incapacity leading the Tribunal to be actually persuaded that the person in respect of whom the application is brought is a person for whom a Guardianship Order can be made (under s.43(1) GAA) or for whom an Administration Order can be made (under s.64(1) GAA).

There are limits however on the Tribunal’s power to make a Guardianship or an Administration order.

The GAA provides that a Guardianship Order or Administration Order should not be made if the needs of the Represented Person can be met by other means less restrictive of their freedom of decision and action.  This is where the relevance of any existing EPG or EPA comes in.  If the needs of the Represented Person can be met by an existing EPG or EPA, then that is restrictive of their freedom of decision and action than appointing a guardian or an administrator.

The Tribunal can however still make a Guardianship Order or an Administration Order where the needs of the Represented Person cannot be met by the existing EPG or EPA, such as where the person appointed is not acting in the best interests of the Represented Person, in which case the existing EPG and EPA can be revoked.

The wishes of the Represented Person should also be considered by the Tribunal, where this is possible.

The Tribunal can only make a Guardianship Order if it is satisfied on the evidence that the Represented Person is incapable of looking after their own health and safety or is unable to make reasonable judgements in respect of matters relating to their person or is in need of oversight, care or control in the interests of their own health and safety or for the protection of others.

The Tribunal can only make an Administration Order if it is satisfied on the evidence that, by reason of mental disability, the Represented Person is unable to make reasonable judgements in respect of matters relating to all or any part of their estate.  The key phrase is “by reason of mental disability”.  The reason why a person is unable to make reasonable judgments in respect of matters relating to all or any part of their estate must be a mental disability.  Mental disability is defined inclusively in GAA to include an intellectual disability, a psychiatric condition, an acquired brain injury and dementia.

This may be straightforward to satisfy, when the Represented Person suffers from a known disability, or a degenerative illness such as dementia or Parkinson’s disease.  In other cases however, satisfying this condition can be problematic.  Does an addiction such as drugs, alcohol or gambling amount to a mental disability?

Just because a person has a history of making bad decisions, it does not mean the Tribunal has the power to intervene and make an Administration Order.

Once the Tribunal determines that it has the power to make a Guardianship Order or an Administration Order, it must then determine whom to appoint.

The Tribunal can appoint anyone over the age of 18 years who has consented to act and who in the opinion of the Tribunal will act in the best interests of the Represented Person in respect of whom the application is made, is not in a position where his or her interests conflict or may conflict with the interests of the person and who is otherwise suitable to act as the guardian or administrator of that person.

The person appointed must act according to his or her opinion of the best interests of the Represented Person.  The Guardian and the Administrator act in the best interests of the Represented Person if they act as far as possible:

• as an advocate for the Represented Person;
• in such a way as to encourage the Represented Person to live in the general community and participate as much as possible in the life of the community;
• in such a way as to encourage and assist the Represented Person to become capable of caring for himself or herself and of making reasonable judgments in respect of matters relating to his or her person;
• in such a way as to protect the Represented Person from neglect, abuse or exploitation (guardianship) and from financial neglect, abuse or exploitation (administration);
• in consultation with the Represented Person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person’s previous actions;
• in the manner that is least restrictive of the rights, while consistent with the proper protection, of the Represented Person;
• in such a way as to maintain any supportive relationships the Represented Person has; and
• in such a way as to maintain the Represented Person’s familiar cultural, linguistic and religious environment.

Often applications for orders are contested, with multiple parties believing they or the Public Advocate (Guardianship) or the Public Trustee (Administration) are the best persons to be appointed.  Usually each person will have what they believe are the best interests of the Represented Person at heart, but will have different ideas of what those best interests are.  This can lead to dispute and often acrimonious hearings, which have the potential to negatively impact family relations.

The best way to avoid these issues is to make sure an EPG and or and EPA form part of your estate plan.

If you require assistance with a Power of Attorney, EPG or Application for Guardianship, don’t hesitate to contact Darren Miller and the Culshaw Miller Lawyers Estate Planning Team on 9488 1300.

Seeking Parenting Orders For The Summer School Holidays

Blog post by Sam Lehman

Summer is around the corner and with it comes school holidays, Christmas, New Year and a deluge of last-minute court applications for parenting orders.

That’s right, it’s that time of year again—the time when the Family Court and Federal Circuit Court brace for an influx of family law applications relating to the summer school holiday period.

Whether it’s parents debating who gets the kids for Christmas or New Year’s Eve, or even who gets to take the kids for a holiday, too often parties leave it too late to seek court orders if these arrangements haven’t otherwise been agreed well in advance.

Fastest finger first

The problem is that the courts simply cannot cope with all matters in a timely manner.

It’s a well-known issue, but what most people don’t realise is that the court rules require that any application for parenting orders regarding the care arrangements of children relating to the December-January summer school holiday period must be filed before 4.00pm on the second Friday in November of the application year.

Non-urgent applications filed after the deadline will be allocated a court hearing in the usual way but the courts cannot guarantee that such applications will be dealt with before Christmas. Indeed, the fact that an application relates to the summer school holiday period will not in itself justify a hearing before Christmas—it could be after Christmas, and possibly significantly later.

Don’t be late

Applications filed before the deadline aren’t guaranteed to get an early listing either—but the chances will be substantially improved.

If you haven’t yet agreed on contact and parenting arrangements for the summer school holiday period, now is the time to seriously consider whether you need to file an application in the Family Court or Federal Circuit Court.

This year, the deadline falls on Friday the 13^th of November—an unlucky date for some. Don’t let it be unlucky for you.

Our local, Adelaide-based team at Culshaw Miller Lawyers can help you file your application to maximise your prospects of securing the results you want, when you need them.

Start your application today

Do I Really Need A Will? (Or Any Other Estate Planning Documents?)

Blog post by Candice Scott

Studies estimate that around 40% of Australians may not have a Will.[1]

During these times of uncertainty, understanding how your assets will be dealt with if you cannot make decisions for yourself, or if you die, is vital to protect your family and loved ones.

We Australians are living longer as a population, and we should all have plans in place allowing someone we trust to step in and look after our affairs in the event that we suffer some kind of illness or incapacity.

The consequences of failing to consider and plan for what happens if you are incapacitated or if you die, can be devastating for families and can create unnecessary stress as well as legal and administrative costs.

We can help you prepare:

• an Enduring Power of Attorney in which you appoint trusted people to look after your legal affairs if you are incapacitated for some reason;
• an Advance Care Directive in which you appoint trusted people to look after your wellbeing and health care if you are incapacitated;
• a Will which deals with your assets and debts if you pass away. A Will is the best way to ensure the people you nominate benefit from your estate. If you don’t have a Will, State legislation applies and your estate might not be distributed in accordance with your wishes.

If your circumstances change you should always review these documents to make sure they are still applicable.

Call Candice Scott from our Adelaide office to discuss whether you need any of these documents in place.

[1] Families and generational asset transfers: Making and challenging wills in contemporary Australia, a joint project between The University of Queensland (UQ), Queensland University of Technology (QUT) and Victoria University (VU), 2015.

What Are Non-Agency & Prescribed Child Support Payments?

Blog post by Jeremy Gitsham

Child support is often a contentious issue after a relationship breakdown, and while some parents seek to abscond from their obligations, the legislation provides that parents have a duty to maintain their children. This duty has priority over all commitments of the parent other than those of supporting themselves or any other child they are obliged to maintain.

When formalising child support arrangements, parties can consider:

• an assessment by the Child Support Agency;
• a binding or limited child support agreement registered with the Child Support Agency; or
• a private agreement.

While binding or limited child support agreements and private agreements can include specific clauses accounting for the payment of non-periodic expenses (e.g. education, co-curricular and medical expenses), an assessment by the Child Support Agency is instead for periodic payments of child support only (e.g. weekly, fortnightly, monthly or yearly payments calculated by the Child Support Agency on their criteria).

In the case of an assessment however, any payments over and above the periodic amount that has been assessed can be treated as ‘non-agency payments’ should the parties agree.

What is a non-agency payment?

A non-agency payment is one of the following types of payment:

• a payment made directly to a payee of a child support liability;
• a payment to a third party in discharge of a debt owed by the payee or payer of the child support liability; or
• a non-cash transaction, such as a transfer of property or the provision of services, taken to be an amount paid under the child support liability.

Non-agency payments can usually be credited towards child support if both parties agree for this occur, in which case both parties should notify the Child Support Agency of such agreement.

Prescribed payments

In the event the parties do not agree for a non-agency payment to be credited, the Child Support Agency can still credit certain ‘non-agency prescribed payments’ towards a payer’s child support liability regardless of the intention of the parents at the time the payment was made.

The prescribed payments can generally be applied towards a child support liability (to a maximum of 30% of the liability), provided that:

• the balance of child support is paid as it becomes due and payable;
• the payer has less than 14% care of all of the children to whom the relevant child support assessment relates at the time the credit is being applied; and
• the child support liability is not already being met by a lump sum credit.

Prescribed payments include:

• child care costs for the child who is the subject of the child support liability;
• fees charged by a school or preschool for that child;
• amounts payable for uniforms and books required by a school or preschool for that child;
• fees for essential medical and dental services for that child;
• the payee’s share of amounts payable for the payee’s home; and
• costs to the payee of obtaining and running a motor vehicle, including repairs and standing costs.

Contact our family lawyers at Culshaw Miller Lawyers in Adelaide today for more information.

Welcome Sally Savini!

Sally Savini is the newest member of Culshaw Miller Lawyers’ experienced Family Law team. As a Senior Associate, Sally has a wealth of Family Law experience including the following practice areas:

• • • Complex and simple property/financial matters;
• Care arrangements and welfare of children;
• Family and domestic violence/abuse;
• Spousal maintenance;
• Child Support;
• Exclusive occupation of the marital home;
• Financial Agreements;

Sally is a passionate advocate in financial and children’s matters and is committed to achieving the best possible outcome for her clients.

To make an appointment with Sally, don’t hesitate to contact us on (08) 9488 1300.