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Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:


CALL: (03) 8561 3318

The law concerning casual employment in Australia has changed as a result of recent amendments to the Fair Work Act 2009 (Cth) by the Federal Parliament. These changes will affect all employers who employ casual employees, and will often require employers to take immediate action to ensure compliance with the updated legislation.

The changes to the legislation mean that:

  1. There is now a statutory definition of what casual employment is,
  2. Employers are now required to provide the Casual Employment Information Statement to employees to casual employees (including providing the statement to existing employees),
  3. There is a new National Employment Standard that allows casual employees who have been employed for 12 months and who are working a regular pattern of hours to convert to part time or full time employment, and
  4. There are new provisions allowing the Fair Work Commission to assist with the resolution of disputes involving casual conversions to part time or full time employment.

Statutory Definition of Casual Employment

Previously there was no statutory definition of casual employment. As a result of the legislative amendments, the Fair Work Act now provides that a person is a casual employee where:

  1. An employer offered to employ a person on the basis that the employer is not making a firm advanced commitment that the work will continue indefinitely with an agreed pattern of work, and
  2. The person accepted employment on that basis.

Generally, therefore, a casual employee would have either:

  1. No agreed consistent work pattern, and/or
  2. No firm expectation of ongoing employment in the medium to long term.

The motivation for a statutory definition of who is a casual employee follows the important decisions of the Full Court of the Federal Court of Australia in Workpac Pty Ltd v Skene and Workpac Pty Ltd v Rossato. The new statutory definition will give employers and employees greater certainty than existed previously.

Casual Employment Information Statement

The Fair Work Act now requires employers to provide their casual employees with a copy of the Casual Employment Information Statement prepared by the Fair Work Ombudsman before or as soon as practicable after they commence employment.

The Casual Employment Information Statement includes information about who is a casual employee and the casual conversion provisions of the Fair Work Act.

Employers should make it their practice to provide the Casual Employment Information Statement to casual employees at the same time that they provide the Fair Work Information Statement.

Employers who have existing casual employees should provide the Casual Employment Information Statement to their casual employees as soon as possible.

Casual Conversion

The Fair Work Act now includes a new National Employment Standard which provides mechanisms for casual employees who work a regular pattern of hours to convert to full time or part time employment.

Employers who are not small business employers (i.e. employers with 15 or more employees) must make a written offer to casual employees offering that employee the option to convert to full or part time employment where the employee:

  • has worked for 12 months, and
  • in the last 6 months, has worked a regular pattern of hours.

Employers of existing casual employees must assess whether their existing casual employees would meet the criteria and make any necessary offers by 27 September 2021.

In addition, employees, including those of small businesses, can request to convert their employment to full or part time employment, where they have worked for an employer for 12 months or more and have worked a regular pattern of hours in the previous 6 months.

However, an employer does not need to offer or accept a request to convert to full time or part time employment where they have reasonable grounds to do refuse. Reasonable grounds include:

  • The employee’s position will cease in the next 12 months,
  • The employee’s hours of work will be significantly reduced in the next 12 months, or
  • There will be a significant change in either the days or times than the employee will be required to work in the next 12 months.

If an employee has made a request to convert to full time or part time employment, the employer must consult with the employee before making a decision to refuse the request.

An employer must give written notice to a casual employee if the employer does not offer or accept a request for conversion to full time or part time employment, whether because the employee has not worked a regular pattern of hours in the last 6 months, or because they have reasonable grounds for not making or accepting the request.

We have summarised the requirements below:

Notices need to be provided within 21 days.

Many Awards already included casual conversion clauses, which we expect the Fair Work Commission will now remove given the inclusion of casual conversion provisions in the Fair Work Act.

We recommend employers prepare template letters to address the notice requirements of these casual conversion provisions and carefully diarise the relevant dates.

Casual Conversion Dispute Resolution

Awards, Enterprise Agreements and some employment contracts include dispute resolution procedures which apply to disputes arising under the National Employment Standards. Where a dispute resolution procedure is contained in an employee’s Award, Enterprise Agreement or employment contract (or other written agreement), disputes with respect to casual conversion should be dealt with using that procedure. Typically, this would include the right to have the Fair Work Commission conciliate the dispute, though specific industries and employers may have different procedures.

If an employer and employee do not have a dispute resolution procedure pursuant to an Award, Enterprise Agreement or employment contract (or other written agreement) that applies to them, then the Fair Work Act now includes a default procedure which allows the parties to refer the dispute to the Fair Work Commission. The Fair Work Commission can:

  • Mediate or conciliate the dispute,
  • Make a recommendation or express an opinion on the dispute, and
  • If the parties agree, arbitrate the dispute (i.e. make a binding decision in relation to the dispute).

It is important to note that the Fair Work Commission cannot make a legally binding decision with respect to a dispute unless the parties agree. If there is no resolution reached through the dispute resolution procedure, and the parties do not consent to the Fair Work Commission arbitrating the dispute, an aggrieved party (usually the employee) would need to make an application to a court to resolve the dispute.

How can Sharrock Pitman Legal help?

The changes to the Fair Work Act have been well received generally, and should help both employers and employees navigate the complex area of casual employment. The changes do require employers to be proactive in identifying casual employees who could become full time and part time employees. If you require any assistance in this regard please do not hesitate to contact our employment lawyers on 1300 205 506 or get in touch by filling in the contact form below.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by a member of our Legal Team

,

.

Samuel Ellemor

For further information contact

Samuel Ellemor

Samuel is a Senior Associate at Sharrock Pitman Legal.

He deals with areas of Commercial Law, Employment Law and Charities & Not-for-Profit Law. For further information, contact Samuel on his direct line (03) 8561 3316.

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However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

  • Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
  • There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
  • There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.
  • You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
  • It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE: 
(03) 8561 3318

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For fifty years Sharrock Pitman Legal has made a significant and long term contribution to meeting the legal needs of business owners and residents in the City of Monash and greater Melbourne area.