Complaints of workplace bullying can now be made to the Fair Work Commission due to changes introduced into the Fair Work Act 2009 (Cth).

What's happening?

Since 1 January 2014, employees have now been able to make complaints to the Fair Work Commission ('the FWC') about allegations of bullying in the workplace. These changes have been introduced into the Fair Work Act 2009 (Cth).

Who does it apply to?

So far, the new laws only apply to certain types of employers, including:

corporations, such as "Pty Ltd" companies;
the Commonwealth or Commonwealth authorities;
bodies corporate incorporated in a Territory; or
businesses conducted primarily in a Territory.

The new laws do not currently apply to other business entities in Victoria, such as sole traders, partnerships and/or incorporated associations. However, the laws may soon expand to cover such entities so watch this space and be prepared!

For businesses covered by the new laws, they apply to a broad range of "workers", including employees, contractors, subcontractors, apprentices, students, trainees and volunteers. However, they do not apply to members of the Defence Force.

What does it cover?

Bullying is defined as repeated unreasonable behaviour directed at a worker or group of workers that creates a risk to health and safety and is likely to be ongoing. This can involve aggressive or intimidating conduct, unreasonable work expectations, or pressure to behave in an inappropriate manner.

It does not cover reasonable management action, such as necessary performance management, so long as such action is carried out in a reasonable manner.

What will happen?

These new developments are likely to bring about increased scrutiny of businesses and their ability to handle bullying in the workplace.

A worker in a business that is covered by the new laws can make an application to the FWC for an order to stop the bullying. The FWC must then start to deal with the dispute within two weeks, including that it can order the relevant people to attend mediation, it can conduct a private conference with the parties or it can conduct a formal hearing.

If the FWC is satisfied that workplace bullying of a protected worker has occurred and that there is a risk it will be ongoing, the FWC can make various orders, including for the bullying to stop, for parties to comply with workplace policies and/or for training to be undertaken by relevant people.

The FWC does not have the power to award any monetary compensation to a "bullied" worker in the first instance. However, if an order made by the FWC is not complied with, then a civil penalty can be imposed of up to 60 penalty units for an individual (currently $10,200.00) or up to 300 penalty units for a body corporate (currently $51,000.00). However, monetary settlements are not promoted or recommended by the FWC. Instead, mediation and conciliation are strongly encouraged to resolve any claims.

What next?

The first step is to have good policies in place that relate to workplace bullying and the next step is to ensure compliance with those policies by all workers in your business. This should include:

Ensuring that you develop or update your anti-bullying policy. Your policies should also address other issues such as harassment, discrimination and all forms of unreasonable behaviour;
Providing an internal complaint process that employees can access before making a complaint to the FWC; and
Ensuring that all staff are trained to be aware of and respond to bullying in the workplace.

For further guidance about getting your business ready, responding to a claim, or any other employment matters, please feel free to give us a call on 1300 205 506 or send an email to sp@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

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.

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Complaints of workplace bullying can now be made to the Fair Work Commission due to changes introduced into the Fair Work Act 2009 (Cth).

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:

DIRECT LINE:

(03) 8561 3318

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Beware the workplace bully!

Complaints of workplace bullying can now be made to the Fair Work Commission due to changes introduced into the Fair Work Act 2009 (Cth).

What's happening?

Who does it apply to?

What does it cover?

What will happen?