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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

Federal elections typically offer voters a choice between the Coalition and Labor’s competing industrial relations policies. In this update, we will analyse the likely impact on employment law depending on the outcome of the election.

Federal elections typically offer voters a choice between the Coalition and Labor’s competing industrial relations policies, and despite both parties having modest ‘small-target’ policy offerings at this election, there are important differences between the two parties on industrial relations.  

With the official unemployment rate at 4% and trending down, the Coalition is playing up its record on the employment front. However, Labor says that workers are not receiving the full benefits of a strong economy, and that too many Australians are in insecure work.

During the current term of the Morrison Government, employers welcomed the Government’s insertion of a definition of casual employment into the Fair Work Act 2009 (Cth), but this was criticised by Labor. Further, the High Court’s decisions on casual employment and independent contractors were both positive decisions for employers but were heavily criticised by the labour movement.

Labor has promised that an incoming Labor government would reverse these changes, along with introducing a range of new legislation to provide workers with more secure work. These changes include:

  1. Amending the Coalition’s statutory definition of ‘casual employment’ in the Fair Work Act, which we expect would substantially restore the position prior to the Coalition’s amendment of the Act and the High Court decision in Workpac v Rossato.
  2. Bringing the ‘gig economy’ under increased regulation by giving the Fair Work Commission powers to make orders for minimum standards for gig and other ‘employee-like’ workers. We anticipate that this may be achieved by enabling the Fair Work Commission to make orders around pay and conditions for independent contractors under Award or Award-like instruments.
  3. Introducing ‘same-job, same-pay’ legislation to ensure that workers employed by labour hire companies receive the same pay as equivalent employees employed directly.
  4. Limiting the use of rolling fixed term contracts, so that employers can only employ employees on a maximum of two consecutive fixed term contracts, for a maximum of two years.
  5. Implementing a national labour hire licencing scheme (similar to the one already operating in Victoria).
  6. Consulting with state and territory governments on the possible introduction of portable entitlement schemes for particular industries. Victorian employers in the construction, security, contract cleaning and community services sectors will be familiar with portable long service leave schemes, but an Albanese government may introduce similar schemes nationally.

Other changes proposed by Labor include the abolition of the Registered Organisations Commission and the Australian Building and Construction Commission, which Labor says unfairly target the union movement, the criminalisation of wage theft at a federal level, and encouraging the Fair Work Commission to increase wages in low-paid, female dominated industries.

Whilst the Coalition is not taking an ambitious industrial relations agenda to the election, it does plan to reintroduce much, if not all, of those parts of its omnibus industrial relations legislation that it shelved in early 2021 after meeting resistance in the Parliament. If the Coalition is returned, we expect to see:

  1. An increased push for Award simplification. This is likely to include allowing employers to provide part-time employees with additional hours without needing to pay overtime rates, where the employee’s weekly hours are less than 38 hours; and
  2. The simplification of the process for making Enterprise Agreements, though the Government has ruled out making any major changes to the ‘Better Off Overall Test’.

Whilst we will not predict the outcome of the 2022 election, we can safely predict that industrial relations will be a battleground in the next Parliament, and employers will need to remain abreast of the developments. As always with industrial relations, watch this space.

How Can Sharrock Pitman Legal Help?

At Sharrock Pitman Legal, our Employment Law team is experienced in advising business owners, executives and HR professionals, as well as employees on their rights and obligations within the Employment Law landscape. If we can assist you, please contact us by email at sp@sharrockpitman.com.au or call 1300 205 506. The author can also be contacted directly at samuel@sharrockpitman.com.au.  

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 Ellemor is a Senior Associate at Sharrock Pitman Legal practising in Employment Law, Commercial Law, and Charities & Not-for-Profit Law. For further information, contact Samuel on his direct line (03) 8561 3316.

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Employment Law

Federal elections typically offer voters a choice between the Coalition and Labor’s competing industrial relations policies. In this update, we will analyse the likely impact on employment law depending on the outcome of the election.

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.