Where the employer has imposed relevant policies and procedures in relation to the fitment and seal of personal/respiratory protective equipment, the short answer is, yes.
Recently, the Fair Work Commission (FWC) upheld an employer’s decision to terminate an employee who failed to clean shave. This was due to the health risks posed by the airborne contaminants that the employee faced while discharging their duties.
In Tasmanian Water and Sewerage Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the FWC rejected CEPU’s claim that the requirement of employees to be clean shaven was unreasonable.
Tasmanian Water and Sewerage Corporation (TasWater) claimed that the procedure requiring employees who utilise respiratory protective equipment (RPE) to be clean shaven was mandatory. This was a result of the requirements of AUS/NZ standard 16975.3:2023 and the manufacturing and fitting specifications of the RPE.
The FWC determined that this direction was not excessive or unreasonable as:
This decision by the FWC upheld the earlier findings in James Felton v BHP Billiton Pty Ltd [2015] FWC 1838, where a BHP employee was fired as he “made a deliberate and well-informed decision” not to comply with the clean-shaven policy of the site.
Ultimately, whilst an employee can maintain their facial grooming as they see fit, where this conflicts with WHS requirements or an employer’s policy which relates to health and safety, the direction to be clean shaven will be found to be lawful and reasonable.
This article was prepared with the assistance of Challita Tahhan.
A family provision claim refers to the contesting of the Will of a deceased person, on the grounds that they failed to make proper and adequate provision for someone whom they had a moral obligation to provide for. This means that you may be able to challenge the Will if you have been left out, or given a smaller provision that what you thought. There are limitations on these claims, including on who is eligible to apply and the time limit which they have to make a claim.
The eligibility for making a claim depends on the law of the State or Territory where the claim is being made. This is usually in the State or Territory where the deceased lived. Each jurisdiction has its own definition of an ‘eligible person’. In New South Wales, this is found in sections 57 and 59 of the Succession Act 2006 (NSW) and in the Australian Capital Territory it can be found in sections 7 and 8 of the Family Provision Act 1969 (ACT). Generally, partners and children of the deceased are considered to be eligible to make a claim. The definition of an eligible person sometimes also includes ex-partners, grandchildren, or stepchildren of the deceased.
Like many other legal claims, there are time limitations on making a family provision claim. In New South Wales, a family provision claim must be filed within 12 months from the death of the deceased. Whereas, in the Australian Capital Territory a family provision claim must be filed within 6 months from Probate being granted. There are, however, some circumstances where the court may grant an extension of time to allow a person to make an application this time limit. In making this decision the court may consider a variety of factors, including the circumstances of the applicant, the length of delay, the effect of granting or not granting the extension, whether distribution of the estate has occurred and whether any parties have acted unfairly or dishonestly.
In the recent case of Dighton V Norwood [2024] NSWSC 318, the NSW Supreme Court considered a widow’s claim for provision from the deceased’s estate. Pamela and the deceased were married in 2007, at the time of the deceased’s death in 2022, they had been in a relationship for 31 years. Pamela and the deceased did not have any children together, but each had children from previous marriages. The claim made by Pamela centred around the adequacy of provision made for her. The deceased’s Will left only a part share in a property to her, while the majority of his estate was left to his two children.
In reaching its decision, the court considered the testamentary intentions of the deceased, the value and assets of the estate and Pamela’s circumstances. The Court also considered the claim of the deceased’s children over his estate, finding that their claims were not as strong as Pamela’s. Ultimately, the Court found that the deceased did not make adequate provision for Pamela’s proper maintenance, education, and advancement in life. As such, the Court proposed orders for the lump sum payment of $150,000.00 to Pamela from the Estate. The Court has put it to the parties to agree on proposed orders to give effect to this judgement, as the estate will need to sell one of the properties owned by the deceased to make such payment, and their proposed orders will be considered by the Court in a further hearing.
If you think you might be eligible to make a family provision claim, you should seek professional legal advice as soon as possible. Our estate dispute specialists in the Private Wealth Law team at Chamberlains can assist you.
Equity Trustees Wealth Services Limited v Astill [2023] NSWSC 1209
Legal ‘construction’ refers to the process of ascertaining the meaning of a written document. Where a Will is not written clearly, it may be necessary for a court to construct the intended meaning in order to give effect to the Will. This may be because of a typographical error, such a spelling error, missing words, the change in word meaning over time, or where the phrasing is otherwise unclear.
Perrin v Morgan [1943] AC 399 provides that the ‘fundamental rule’ in constructing the meaning of a Will is ‘to put on the words used the meaning which, having regard to the terms of the will, the testator intended’. This case emphasised the importance of the ‘expressed intentions’ of the testator, rather than looking to what the testator may have meant to say. Further to this, De Lorenzo v De Lorenzo (2020) 104 NSWLR 155 said that “the intention of the testatrix is to be determined from the language of the will read in the light of the circumstances in which it was made”.
Equity Trustees Wealth Services Limited v Astill [2023] NSWSC 1209 highlights that a court can “read words into a will where it is clear on the face of the will that words have been omitted from the will and what those words are”. This has previously been referred to as ‘moulding’, as it moulds the terms of the Will to avoid an “absurd and irrational result which would otherwise arise”. Butlin v Butlin (1966) 113 CLR 353 states that there should be “a compelling and convincing inference from the terms of the will against the background of the facts as they were known to or conceived by, the testator” where the Court corrects a will as part of the process of construction.
Another legal principle in the construction of Wills is a principle sometimes referred to as the ‘golden rule’ of construction, which follows that the Court should prefer a construction that avoids intestacy. That means, the Court should favour an interpretation of a Will which does not overlook the gifting of any part of the estate. As such, where the meaning of words in a Will are unclear, this rule calls for courts (where possible) to interpret the Will in a way that does not leave some part of the Estate undealt with.
In the recent case of Equity Trustees Wealth Services Limited v Astill [2023] NSWSC 1209, the Court considered the ‘construction’ of the Will of Cedric Charles Hopping. Cedric died in 1990 and left a right of residence in his Will to his de-facto partner, Margaret, for his Toukley property. That is, Cedric provided the right for Margaret to live in the property for the remainder of her life. However, the provisions of the Will were not clear as to how the property was to be dealt with upon her death (referred to as the ‘remainder interest’ of the property). This came to their attention upon Margaret’s death in 2015.
Following disagreement between the beneficiaries as to who was entitled to the property, it was put to the Court to make declarations in respect to the meaning of the Will and make an order to amend the property title in accordance with the Court’s interpretation. The Court concluded that it was clear that Cedric “intended to make a particular provision of the remainder interest in the Toukley property”, between 9 beneficiaries listed in his Will. In reaching this conclusion, the Court also considered the context of the two Wills made shortly prior to Cedric’s final Will, which both support the Court’s construction. Ultimately, the Court made an order that the Toukley property be transferred into the name of the executor of Cedric’s Estate, so that it could then be distributed to the nine beneficiaries whom the Court constructed the Will as leaving the property to following Margaret’s death.
This case highlights the importance of ensuring your Will is drafted by a professional to reduce the risk of issues regarding interpretation.
Continuing our series describing the changing landscape of Australian judicial attitude to electronic Wills, we have moved on from a 4.7 inch screen to a 12.9 inch screen, with a matter decided before the South Australian Supreme Court in relation to a Will that was made on an iPad.
In The Estate Of Elizabeth Seabrooke (Deceased) [2023] SASC 122 (“Seabrooke”) the deceased, Elizabeth Seabrooke, made a Will on an iPad and signed it using the e-pen on the iPad before two witnesses who did the same. After Ms Seabrooke died in 2022, a copy of that Will was saved to a USB and presented to the Court, to be admitted to Probate as the Will of the deceased. The executor named in the iPad Will could not locate the Will document on the original iPad that was used to make the Will.
In order for the application to succeed, it was necessary to demonstrate there was a document which contained the testamentary intentions of the deceased person (which aligns with the Wills Act 1936 (SA)). The Court was satisfied that the document was the electronic Will of the deceased as by placing her electronic signature on the electronic document, she had intended that it constitute her Will. The document had met the requirements of a valid Will set out on the Wills Act including:
The application was aided by the fact that all parties (except for one) who may have been prejudiced by the application to the Court, had consented to the application.
This decision is a reflection of the changing attitudes the Courts hold toward electronic documents, and marks a more contemporary approach to recognising electronic Wills. An application to have an electronic Will admitted to the Courts can be more complex and costly and the success of the application is based on the specific circumstances of each case. For this reason, we recommend speaking with an expert who can assist in preparing your documents to avoid any issues. Please contact the Private Wealth team at Chamberlains Law Firm to discuss your Will.
Why do I need a Will?
If you die without a Will in place, you are considered to have died intestate. This means that the law determines how your estate is passed, and who will manage it. It may be gifted to someone you do not intend to receive your estate or may end up being passed to the government. It generally also takes a longer time to administer an estate where there is no Will and can lead to a more costly court application.
Regardless of how big or small your estate is, it will need to be administered and dealt with in the event of your death. For this reason, it is important to have a Will in place.
What can go wrong if I don’t have a Will in place?
Inheritance not passing to a beneficiary of your choosing.
As the law determines who should receive your estate in the event of your death, your children may not receive a share if you do not have a Will. It is also possible that an ex-spouse may be entitled to a share of your estate in certain circumstances. Depending on the structure of your family, an estranged relative may receive a share of your estate which is likely not your intention.
Increased risk of estate dispute.
If an eligible person feels they should have received a share of your estate but did not because of the laws of intestacy, your estate may be contested. This will increase the cost of administration of your estate, and also the time it takes to handle your estate after your death.
Increased cost and time of administering your estate.
Applications to a court on the basis of intestacy can be more complex than applications on the basis of a deceased having a Will in place. For this reason, not having a Will in place at your death may increase the cost your estate needs to pay to be administered after your death. The application process is also generally longer due to the added complexity.
If you do not have a Will in place, please contact the Private Wealth Law team at Chamberlains Law Firm today on 1300 676 823.
One of the most commonly asked questions that the Private Wealth Team receive is “where should we keep our Wills?”. While this answer depends on your personal preference, one option is to store your documents in your lawyers “safe custody”.
Safe custody storage is a secure storage system for original legal documents. It is designed for long term storage. This typically includes important original documents such as Wills, Enduring Powers of Attorney and original paper title documents.
Chamberlains offers its client safe custody facilities to store their legal documents. We are also able to store documents in our facilities that we have not drafted so please reach out to the team to discuss your options today.
We have strict protocols in place regarding access to documents to ensure that only you, or someone you authorise may access them.
Our safe custody storage offers secure, and confidential storage of your documents.
Have You Considered Updating to a Will with Discretionary Testamentary Trust?
A well drafted Will with Discretionary Testamentary Trust can achieve your estate planning goals in a manner that offers your beneficiaries maximum asset protection and minimum income and capital gains tax liability.
How does it work?
Where your beneficiary has reached the age of 25 (or another age that you choose, called the ‘preservation age’) they can choose to take their inheritance outright (as a gift) or they can choose to take it through a trust. Where your beneficiary is under the preservation age, their share of your estate is automatically held in a testamentary trust until they attain the preservation age with directions that the capital be preserved for the beneficiary’s education, reasonable maintenance and welfare and medical and dental treatment.
Asset protection
A testamentary trust provides a greater level of asset protection than an outright gift. This is because the trustee, and not the beneficiary, is the legal owner of the asset. A trust can allow you to better protect your family assets from various threats, including a beneficiary’s wasteful habits or addictions, claims by creditors in bankruptcy proceedings or claims by spouses in a marital breakdown.
Tax effectiveness
One of the most significant and arguably most underappreciated benefits of a discretionary testamentary trust is its tax effectiveness. A discretionary testamentary trust allows a beneficiary to split and stream income and capital to the potential beneficiaries of the trust. The tax effectiveness of testamentary trusts arises out of the fact that rather than paying marginal rates of tax on the income generated by their inheritance (as would be the case under a simple Will), when assets of a testamentary trust are sold, or where income is generated from trust assets, the trustee has the ability to strategically pass out such taxable income to those beneficiaries who will pay the least tax (the income being assessable in the hands of the recipient beneficiary). This becomes particularly tax effective where the beneficiary has a spouse that does not work (or is on a lower tax rate) or where they have minor children (a testamentary trust treats distributions to minors as if they were adults).
Enduring power of attorney
As many people go travelling over the holiday break, it is also important to appoint someone who can act on your behalf in the event that you become incapacitated. If you do not do this then somebody (for example, your spouse) must apply to the ACT Civil and Administrative Tribunal for a guardianship order over you. There is no guarantee of success, and the process can be lengthy and stressful. Appointing an attorney before you lose capacity is a simple matter of filling in a form and specifying the matters (financial, medical and personal care) over which you want your attorney to have power.
The Labour Government’s most recent addition to their suite of industrial relations reforms, being the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth), recently passed into law on 12 February 2024. Of note was the Right to Disconnect amendment which provides employees with a new right to “refuse to read, monitor or respond to contact or attempted contact” from their employer or a third-party, such as a client, unless their refusal is “unreasonable”.
What is a Right to Disconnect?
The Right to Disconnect can be interpreted simply… it is a right for employees to disconnect from their employment. In doing so, they have a right to refuse contact outside of work hours where it is reasonable to do so. For the purposes of this law, work hours includes any time the employee is not performing their roles and duties in accordance with their contract of employment. Therefore, the Right to Disconnect also applies in periods of leave.
Importantly, the Right to Disconnect is not a right to be free of all contact from work outside of work hours, nor does it prohibit employers from contacting employees after work hours. Instead, they can actively elect to exclude themselves from communicating with their employer or a third-party.
In determining whether a refusal is reasonable, the law stipulates that the following factors must be considered:
What if there is a dispute?
Where a dispute arises, the law provides the following dispute resolution processes:
The Fair Work Commission can then make orders to (a) prevent the employer from taking any disciplinary action against the employee for exercising their Right to Disconnect; and/or (b) prevent the employer from continuing to require an employee to connect with their employment outside of work hours. The Commission also has jurisdiction to impose a financial and pecuniary penalty for any breaches of the law.
When Will the Right to Disconnect Come Into Effect?
The law received royal assent on 26 February 2024. Therefore, the Right to Disconnect will come into effect and be a binding law on 26 August 2024.
Tips For Employees
The Right to Disconnect provides employees with significantly more power to act on employers with excessive expectations to communicate and perform work outside of work hours.
Importantly, as this is a new workplace right, it is a right that falls within the scope of a general protections claim. This increases the availability of a general protections claim where businesses are not compliant and take adverse action against the employee for exercising their Right to Connect.
Tips For Employers
Businesses have to prepare for the Right to Disconnect laws by implementing new policies and procedures. In particular, all employers should implement or revise a Communications Policy that details the level of communication expected of employees, particularly outside of work hours.
Further, employers should review the employment contracts of their employees. If an employer requires an employee to engage with their work outside of work hours, they can include a clause that requires the employee to work reasonable additional hours.
It is also important that employers are aware of the Right to Disconnect and respect that right. To avoid claims such as a general protections claim, employers must not expect employees to engage in any communication or work activity outside of working hours, and must also not reprimand employees for failing to do so.
Takeaways
With the Right to Disconnect due to come into effect shortly, now is the perfect time to prepare your business by implementing a new communication policy that addresses any contact made outside of work hours.
To determine if your business is compliant with these new laws, as well as existing workplace legislation, contact Chamberlains HR for a free health check on 02 6188 3633.
*This article was written with the assistance of Oscar Arnott.
The Facts – Real Estate Tool Box Pty Ltd v Campaigntrack Pty Ltd
Campaigntrack Pty Ltd was a company providing online marketing and sales services within the real estate industry, using their ‘Campaigntrack’ online software system to do so. To limit competition, Campaigntrack acquired the rights to the copyright associated with another cloud-based real estate marketing system, DreamDesk.
DreamDesk was developed by software developer David Semmens and was used by real estate agency Biggin & Scott under a licence granted by DreamDesk Pty Ltd (DDPL). The terms of Campaigntrack’s acquisition included the provision that Campaigntrack would grant DDPL a licence to use DreamDesk for business operations until October 3rd 2016.
Following the acquisition, a director at Biggin & Scott instructed Semmens to construct a new software system with a similar functionality to the DreamDesk and Campaigntrack software. The director stated, however, that it must ‘not breach any other companies IP or ownership, in particular Dream Desk or Campaign Track’. Semmens subsequently produced the ‘Real Estate Tool Box’ software (‘Tool Box Software’), accompanied by the incorporation of Real Estate Tool Box Pty Ltd (‘RETB’).
Campaigntrack alleged that Tool Box Software reproduced parts of the DreamDesk source code and brought claims against the following parties on the basis that they had infringed, or authorised the infringement of, copyright in CampaignTrack’s software:
Under s 36(1) of the Copyright Act Act 1968 (Cth), copyright infringement will occur if a person does any act comprised in the copyright (‘direct infringement’) or authorise the doing of any of these acts (‘indirect infringement’).
When determining indirect infringement, the Court may consider factors including (i) the person’s capacity to prevent the act of infringement; (ii) the relationship between that person and the infringer; and (iii) whether the person took any reasonable steps to prevent or avoid the infringement.
A person may be found liable for authorising copyright infringement where they are ‘indifferent’ to the alleged infringement of a third party. Neutrality or inattention is not considered sufficient for a finding of indifference.
Proceeding in the Federal Court
Initially, the Federal Court found that Semmons had infringed the copyright subsisting in the DreamDesk source code in reproducing the whole, or a substantial part, of the code. The Court was not satisfied, however, that Biggin & Scott and associated parties authorised the infringement, finding that they lacked actual or constructive knowledge of the infringement.
Campaigntrack appealed to the Full Court, where the decision of the primary judge was overruled. The court found that correspondence between Campaigntrack and DDPL indicated that Biggin & Scott had authorised the infringement of Semmons in their indifference to the development of the Tool Box Software.
Biggin & Scott appealed to the High Court in regard to the finding of indirect infringement of copyright.
What did the HCA decide?
The High Court unanimously allowed the appeal, holding that there was no indication that Biggin & Scott was involved sufficiently in the infringement as to amount to authorisation.
Indifference is considered to amount to authorisation in circumstances where a party has reason to anticipate or suspect that the infringing act is likely, and has the power to prevent it, yet fails to take reasonable steps to do so.
In their ruling, the High Court noted that Biggin & Scott had engaged Semmons as a third party developer with specific expertise in an area they were inexperienced. The High Court found their explicit instruction to Semmons to not infringe copyright was sufficient as a basis for dismissing Campaigntrack’s claim of indifference. The Court further found that Campaigntrack had not established that Biggin & Scott were aware of, or suspected, Semmens of engaging in infringing acts at any relevant time, with Biggin & Scott having acted reasonably in not interfering with Semmons’ work.
Implications
In their decision, the High Court established a higher bar for establishing infringement of copyright by authorisation. An allegation of authorisation through indifference requires a factual basis, meaning there must be evidence that a person had knowledge sufficient to create a duty to take reasonable steps to avoid or prevent an infringing act by another person. That threshold was not satisfied in this circumstance.
We continue our examination of when you might need to update your Will, and more importantly, why. Although the Will you made while you were still setting up your whole life may still be legally valid, your old Will may not represent your current wishes, asset structure, circumstances or family structure. By the second half of your life, the divergence between your old assets and family structures and your new structures could be more different. We continue our journey decade by decade to identify moments to review your documents.
Forties (sandwich decade – caring for kids and elderly parents)
This is the time in your life where you start accumulating substantial assets (including super). It’s important to update your Will when there are any significant changes to the value of your estate.
Unfortunately, according to the Australian Bureau of Statistics, your forties are also more likely to be the age at which you divorce . Divorce is another important event to review your estate planning. Divorce invalidates any gift to your ex-spouse, which, depending on your circumstances may or may not align with your intentions. For example if you had young children that were going to live with your ex-spouse, you may intend to maintain provision for them in your Will.
You also need to consider any particular issues relating to your beneficiaries that need to be taken into consideration such as children with disabilities or the care for elderly parents. What about your own circumstances, do you have adequate funds to pay down debt if your partner died?
The ‘sandwich generation’ refers to people who care for their ageing parents while supporting their own children. Have you spoken to your parents about what would happen if they died or became incapacitated? Do they have a Will and have you discussed their wishes around health care; where they live; who should make financial and legal decisions for them and what kind of life-saving measures they desire – these are all topics that should be gently raised.
Fifties (an uneven sandwich, with the increasing needs of grown children)
While your children may be grown, you may still be supporting them financially (university, weddings, first homes). You may also be taking on more care of elderly parents. Estate planning becomes very important at this stage as you manage your current responsibilities but also prepare for the future.
Your Will also needs to be updated if the executor named in your Will has become ill, died or can no longer handle the responsibility.
You may need to update your Will if there’s been a death of a family member or beneficiary. You also need to ensure that you have left your estate to your children in a manner that will provide them with ongoing tax benefits as well as protect their inheritance from relationship breakdown and bankruptcy. Have you adequately provided for grandchildren?
Sixties and Onwards (health concerns, end of life decisions)
You’ve done it, the golden years have arrived at last. Is your Will up to date and appropriate for the circumstances of your beneficiaries? Have your children remarried, divorced or do they have blended families? Legacies also change over time and some may have devalued, you may have bought or sold assets. Are the details in your estate still up-to-date?
Do you have a valid Enduring Power of Attorney to cover you if you lost capacity? Have you reviewed your superannuation arrangements and determined how much tax would be levied on your super if you died and it passed to your adult children. There are strategies that can be implemented after the age of sixty to reduce these.
Have you considered who should make decisions on your behalf if you lost capacity? Do you want to be kept alive on life support or authorise someone to refuse medical treatment or turn off life support?
You should review your Will regularly, every 3 to 5 years or whenever there are significant changes to your circumstances.