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Mitchell is a Principal Lawyer of Sharrock Pitman Legal. He is an Accredited Specialist in Business 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 2019 federal election promises to be the most significant election for employment and industrial relations since 2007, when Labor defeated the Coalition by promising to wind back the Coalition government's controversial WorkChoices legislation.

It's a story the Labor Party wants to repeat in 2019.

True, there are important differences from 2007. The economy is more subdued than it was in 2007, just prior to the global financial crisis. The Liberal Party no longer has a sweeping industrial relations agenda. In its six years in office, the Coalition has only tinkered around the edges of the Rudd Government's Fair Work Act 2009. At this election, the Coalition is largely content to maintain the status quo.

Nonetheless, the Labor Party thinks it's time for some major changes to Australia's employment laws.

What changes are they looking to make to employment law?

If Australia ends up with a Shorten Labor government, we can expect the Labor government to pursue the following changes:

1. The reinstatement of penalty rates

In the first 100 days in office, Labor has promised to reinstate Sunday and public holiday penalty rates, which the Fair Work Commission cut for the hospitality, retail, fast food and pharmacy industries.

2. Policies aimed at reducing the casualisation of the workforce, including:

  • Inserting a statutory definition of who a casual employee is into the Fair Work Act 2009, making it harder for employers to engage employees as long term casuals.
  • Providing all casual employees who work regular and systematic hours with the right to request to become permanent employees after 12 months of employment. Many employees already have a similar right under their Awards, but the Labor Party plans to incorporate the right into the Fair Work Act, so that it applies to all employees. The changes would also make it harder for employers to refuse an employee's request than is currently the case.

3. Increases to minimum wages

This is to be achieved by requiring the Fair Work Commission to ensure employees receive a 'living wage' when it sets minimum wages.

4. Preventing employers from unilaterally ending Enterprise Agreements when they expire

Where that would result in a reduction in employees' wages.

5. Establishing a new, same jobs, same pay law

This would require labour hire companies to pay their employees the same as they would be paid if they were employed directly by a host business.

6. Greater regulation for the 'gig economy'

Aimed at reducing instances where workers are classified as contractors rather than employees, and provided with significantly less pay and protections than they would have if they were classified as employees.

7. A suite of policies aimed at achieving pay equity between men and women

Including requiring companies with more than 1,000 employees to reveal their gender pay gaps.

8. Providing employees with ten days of paid domestic violence leave

Extending the five days of unpaid domestic violence leave that the current government recently introduced into the Fair Work Act.

The Coalition government, in comparison, is not bringing a suite of significant employment and industrial relations changes to the table. In the Coalition's six years in office, we have seen two major trends:

1. Increased regulation of the union movement

In particular through the establishment of the Australian Building and Construction Commission and the Registered Organisations Commission (both are likely to be replaced if Labor wins office).

2. An increased focus on the enforcement of employment laws

Including by giving the Fair Work Ombudsman significant coercive investigatory powers to pursue employers who act illegally.

Regardless of who wins office this election, employers can expect increased penalties for underpaying their employees and for engaging in sham contracting (where a business classifies workers as contractors when they should really be classified as employees).

We should also expect the casualisation of the workforce and the challenges of the gig economy to remain significant issues, regardless of who wins office.

One thing is certain, and that is that Australia's employment laws are going to be become more complex, with more obligations on businesses. Businesses cannot afford not to keep up to date with this dynamic and ever changing area of law.

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 one of our lawyers

,

.

Samuel Ellemor

For further information contact

Mitchell Zadow

Mitchell is the Managing Principal of our law practice.

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. For further information, contact Mitchell on his direct line (03) 8561 3318.

More on

Employment Law

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 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 placed on the Supreme Court website for at least 14 days prior to any application.

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 does not take long to process the application (maybe another 1 to 2 weeks) and this is done 'on the papers'. This means you do not have to go to a court hearing. There is also a general discretion for the Court to issue a 'Requisition' asking that you provide more information before they process the application and this can 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. 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 a Principal Lawyer of Sharrock Pitman Legal. He is an Accredited Specialist in Business 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.