The information contained in this article is current as at 16 March 2020. To view information on the latest coronavirus updates, please visit our COVID-19 Updates, Webinars and Resources page or alternatively contact us on (03) 9560 2922 for further information on any recent changes.

Victoria has declared a state of emergency in an attempt to slow the spread of the coronavirus (COVID-19). The coronavirus and the public health measures that will be taken to limit its spread presents numerous challenges to businesses. In this article, we provide general information to help employers navigate the next few weeks and months.

Safety

Ensure that your business has implemented good hygiene policies. Provide employees with hand sanitisers and maintain clean work surfaces.
Advise employees and customers who are feeling sick or showing flu-like symptoms to stay at home.
Where possible, use telephone or video conferencing instead of face to face meetings.
If an employee who has been attending work has contracted the coronavirus, it may be necessary for all employees to self-isolate, and employees may need to seek medical attention. Where possible, this will mean asking employees to work from home.
Prepare to cancel any larger meetings. Meetings of over 500 people are already required to be cancelled, and that number is likely to be reduced imminently.
Further information can be found on the Federal Government’s guide for employers.

Travel

The Australian Government is now requiring all people who return to Australia after travelling overseas to self-isolate for 14 days. For most businesses, this will mean that they should cancel all overseas work related travel.
Discourage employees from travelling overseas for personal travel. If any employee does insist on travelling, ensure that you have arrangements in place for what happens on their return to Australia. This is likely to involve the employee in question taking a further two weeks annual leave on their return so that they can self-isolate.

Working from home

It is highly likely that some or all of your employees will be unable to work from your office or worksite. Develop strategies to allow your employees to work from home, whether in the event that they need to self-isolate, or because your entire workplace needs to shut down.
Your workplace health and safety obligations extend to your employees who are working at home. Whilst you cannot control your employees’ home environment, you should still take reasonable steps to ensure that they are safe. For example, if an employee is setting up a desk or work equipment so that they can work at home, ensure that they have any help that they need, and that they know how to operate the equipment.

Flexible Workplace Arrangements

There is likely to be major social disruptions as a result of the coronavirus. For example, schools and childcare centres are likely to close, meaning that your employees with young children may need changes to their normal work patterns to allow them to care for their children.
Many employees will be entitled to request flexible workplace arrangements in circumstances where they need to care for young children.
There are likely to be restrictions on public transport. Consider how your employees who rely on public transport should respond if public transport is cancelled.

Personal Leave

Create a culture where it is expected that if an employee is feeling slightly unwell or showing any symptoms (even if they think they are able to work), that they should take leave. This minimises the risk both to them, to your other employees and to customers.
Full time and part time employees who are unwell, or who have a family member or members of their immediate household who are unwell, are entitled to take accrued paid personal leave.
All employees who are unwell are entitled to unpaid leave.
Employers are entitled to ask for evidence (medical certificates and statutory declarations are commonly required). We recommend that employers show some flexibility on their evidence requirements, so as not to discourage employees taking leave and to not unnecessarily require employees who otherwise would not need to see a doctor attending simply to obtain a medical certificate.
Follow Government advice in requesting medical clearance for employees who you consider at risk of having contracted the coronavirus. You have an obligation to ensure that your employees are safe to return to work. However, with the public health system having limited capacity to test for the virus, only those who are considered at risk of having contracted the virus should seek testing for the virus.

Stand down

In some cases, businesses may need to shut down. This is likely to be a stressful and difficult time for everyone.
Ask people to work from home, if at all possible, rather than standing them down from work.
If it is necessary to shut down, consider asking employees to take accrued annual leave or long service leave.
You may consider discussing flexibility arrangements with your employees, such as allowing them to take half leave at half pay. Make sure you document any agreement reached.
Further, employers can often direct employees to take annual leave. However, you will need to check the Award or Enterprise Agreement that applies to your employees.
As a last resort, employers may be able to stand down employees without pay, provided that the stand down is caused by a stoppage of work that is beyond the employer’s control. This could include:

— The breakdown of supply chains, or

— The need to close the business as a result of a direction of government.

It may not include a situation where an employer decides on its own initiative to close down business out of concerns for the virus.

Again, employers need to check any Award, Enterprise Agreement and Contract of Employment that applies to their employees to determine their rights and obligations with respect to standing down employees.

Casual employees lack many of the benefits of permanent employees. If you can no longer provide casual employees with shifts, encourage them to apply for the assistance that the Federal Government is providing as part of its package to fight the economic effects of the virus. This would also apply to permanent employees who do not have an entitlement to paid leave.

Please note, the guidance in this article is of a general nature only as of 16 March 2020 and should not be relied upon as legal advice. The situation is likely to change rapidly, and you should visit the relevant government websites for up to date information.

How can Sharrock Pitman Legal assist?

If you require specific legal advice for your situation, please contact us on 1300 205 506 or alternatively fill 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.

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Written by one of our lawyers

Samuel Ellemor

For further information contact

Samuel Ellemor

Samuel is a Legal Practitioner 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.

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:

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