Under the Fair Work Act 2009, some employees have a right to request "flexible working arrangements". This is one of the National Employment Standards included in the Act.

Flexible working arrangements can include changes to the employee's hours of work, place of work and job structure (e.g. job sharing).

Flexible Working Arrangements

Employees can make a request for a flexible working arrangement if they:

are the parent or have responsibility for the care of a child who is of school age or younger
are a carer within the meaning of the Carer Recognition Act 2010
have a disability
are aged 55 years or older
are experiencing violence from a member of their family, or
provide support or care to a member of their immediate family or their household who requires care or support because that person is experiencing violence from a member of that person's family.

However, an employee cannot make a request unless they have completed at least 12 months of continuous service. An exception is made for casual employees, who must be long term casual employees and have a reasonable expectation of regular, continuing employment.

An employee must make their request in writing and set out the reasons why they are requesting the changes to their employment arrangements.

Modern Awards

In addition, from 1 December 2018, all Modern Awards have been varied to include new provisions for flexible working arrangements that will affect all Award covered employees. So, if the employee is covered by an Award, the employer must discuss the request with the employee and try to reach a genuine agreement with the employee. This would involve discussing the needs of the employee, the consequences for the employee if the employer does not make the requested changes, and any reasonable business grounds for refusing the request.

Of course, employees are only able to request flexible working arrangements. An employer can refuse the request if there are reasonable business grounds for doing so. Valid grounds can include, but are not limited to, factors such as the cost to the employer, impracticability or a likely loss of productivity or reduction in the level of customer service.

Employers must give employees a written response within 21 days to advise whether or not their request is accepted. If the employer refuses the request, they must explain the reasons why.

If the employee is covered by an Award, the employer must also state whether there are any changes the employer can offer so as to better accommodate the employee's circumstances.

If an agreement is reached that differs from what the employee originally requested, and the employee is covered by an Award, then the employer must provide a written response setting out the agreed changes.

If an agreement is not reached and the employee is covered by an Award, then the employee or the employer can deal with the disagreement through the dispute resolution process provided for in the Award.

If you are an employer and you receive a request for flexible working arrangements, it is good practice to have a discussion with your employee about their needs. Wherever possible, consider reaching an agreement that balances those needs with the requirements of your business.

For further guidance about requests for flexible working arrangements, or any other employment matters, please feel free to give Mitchell Zadow a call on 1300 205 506 or complete the 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

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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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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Changes to the rules for 'flexible working arrangements': Employers take note!

Flexible Working Arrangements