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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 Victorian Government’s vaccine mandate means that many Victorian employees and contractors will be required to be vaccinated as a condition of continuing to work or returning to onsite work, with employers and site operators having the obligation to ensure that their employees and contractors are complying with the mandate.*

In a previous article Passports to work: Vaccine passports in the workplace, we provided some general advice to guide employers when deciding on vaccination requirements in their workplace. In this article, we specifically consider the Victorian Government’s vaccine mandates and the implications for employers, employees and contractors.

Industries and employees affected

The vaccine mandates are made by the Chief Health Officer under the Public Health and Wellbeing Act 2008 (Vic). As of 8 October 2021, the COVID-19 Mandatory Vaccination Directions mandate that most workers working onsite and away from home across Victoria must have booked into receive, and have received, their first and second dose of a COVID-19 vaccine before the relevant dates (more on dates below).

Previous Mandatatory Vaccination Directions required workers working on construction sites, in residential aged-care, heathcare and education facilities to be vaccinated. On 8 October 2021, this was extended to most workers authorised to work away from home across the State. The list of authorised workers to whom the mandate applies can be found on the Government's website.

It is unclear how long the vaccine mandates will be in place in Victoria, or at what vaccination level the mandates might be removed (for example, once 80% or 90% of the population over 12 is fully vaccinated).

Obligations on employers and site operators

The health directions require employers and siteoperators to collect, record and hold vaccination information for the relevant workers, and to only permit those workers who can provide evidence of being vaccinated to attend onsite or carry out work outside their home (unless they have an approved medical exemption). If a worker cannot provide the evidence of their vaccination status, the employer or site operator cannot permit them to attend the site or carry out work outside their home.

There are three relevant dates employers and site operators need to be aware of:

  1. The date by which you must collect workers’ vaccination information and ensure that they have booked to receive their first dose;
  2. The date by which workers must have received their first dose of a COVID-19 vaccine; and
  3. The date by which workers must have received their second dose of a COVID-19 vaccine.

There are specfic provisions for outdoor personal training staff with Melbourne and other restricted areas within the State.

If an employer or site operator fails to comply with the directions, they may receive an infringement notice or they may be prosecuted. If they are prosecuted a court may impose a fine of up to$21,808.80 per offence for individuals and $109,044.00 for bodies corporate.

Unvaccinated workers

The greatest difficulty for employers and site operators with the vaccine mandates arises where workers are not vaccinated and do not have a medical exemption from a medical practitioner.

In relation to employees of a business, in the first instance we recommend considering whether unvaccinated employees can work from home.

If that is not possible, and the effect of the vaccine mandate is that they cannot carry out the work for which they are employed, then you will need to consult with the relevant employees and explain their options to them. This could include:

  1. Asking your employees to take paid annual leave or long service leave;
  2. Asking your employees to take unpaid leave;
  3. If your unvaccinated employees could carry out some (but not all) of their work from home, only employing them forthe hours that they can work at home;
  4. For casual employees, not providing shifts as long as the mandate is in place.

If those options are not viable for a particular employee, then you may have no choice but to treat the employee as being absent from work without leave or stand the employee down from work on the basis that they are not able to lawfully carry out the work for which they were employed.

As a last resort, you may also consider dismissing the employee. For employees protected from unfair dismissal under the Fair Work Act 2009 (Cth), you would need to be satisfied that the dismissal was fair in the circumstances, having regard to the business’s situation, the employee’s period of service, whether alternative options are available, the likely length of the vaccine mandate and any other factors that may be relevant.

If you have unvaccinated contractors that are required to work onsite, in most circumstances you could require them to cease providing their services on the basis that they cannot lawfully carry out their duties under their contract. However, the exact approach will vary depending on the terms of the contract and you should review your contractor agreements, and in particular the default and termination clauses.

Conclusion

It is to be hoped that the vaccine mandates will facilitate the re-opening of the Victorian economy, but it does also place businesses with unvaccinated workers in a difficult situation. If you would like advice on your business’s particular situation, including assistance with drafting communications to workers, please feel free to contact us.

* This article was updated on 8 October, 2021

How Sharrock Pitman can help?

Our team legal team can assist you by advising on your rights and taking action on your behalf. If you require any assistance on this matter or other employment law issues, please do not hesitate to contact our employment lawyers on 1300 205 506 or get in touch by email at sp@sharrockpitman.com.au or 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.

More on

Employment Law

The Victorian Government’s vaccine mandate means that many Victorian employees and contractors will be required to be vaccinated as a condition of continuing to work or returning to onsite work, with employers and site operators having the obligation to ensure that their employees and contractors are complying with the mandate.*

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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About Sharrock Pitman Legal

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.