COVID-19 Q&A: Your questions answered

17 April: Travel restrictions on residents travelling across state and territory borders

In this time of COVID-19 some Australian states and territories have applied restrictions on residents travelling across state and territory borders, with some of these restrictions involving strict quarantine requirements. Many families are naturally concerned about the safety of their children and how these restrictions will affect their lives and parenting arrangements.

Border arrangements are primarily a matter for each state or territory government. There is currently no national approach to help parents with border closures.

So what should you do? The Courts have strongly advised families to seek advice from their relevant state and territory authority as to how each state or territory is enforcing border restrictions and quarantine requirements. For example, there may be an exemption in your state to enable families with court Orders in place to travel across state and territory borders. The details for each state and territory authority can be accessed here.

If you are travelling across closed state or territory borders to enable parenting arrangements, it is recommended that you should have in your possession a hard copy of the appropriate court Order or at least an electronic copy or photo of your Orders.

Key Contact: Stephanie Doyle, Partner, Family & Relationship Law

2 April: Who's got my back as a court appointed liquidator?

In non-coronavirus news for the insolvency sector, the 26 March judgment of the NSW Supreme Court in Aardwolf Industries LLC v Riad Tayeh provides reassurance to insolvency practitioners who take on the (often understated and unprofitable) work of being a court appointed liquidator.

The Court has restated the principle that its leave must be sought prior to commencing proceedings against a court appointed liquidator for the way in which the liquidation was conducted. The Court identified two reasons.

First, court appointed liquidators are delegates and representatives of the court and its power and authority. Historically, the courts tend to offer protection to those who exercise its authority.

Secondly, this protection is required to allow the impartial and unencumbered exercise of a liquidator's power, free from the fear of vexatious litigation. Court appointed liquidators often make important decisions in restrictive time frames. This protection facilitates the difficult task of liquidation, without causing the liquidator to overly question every decision made.

Court appointed liquidators will play an important role for our economy in the post-coronavirus world. This judgment has their back!

Key Contact: Keiran Breckenridge, Special Counsel, Commercial Disputes

1 April: Insights into the "doctrine of frustration" in relation to commercial leases

One of the most common questions I get asked relates to the "doctrine of frustration" and whether commercial leases that may not be captured by any new Government regulations will be terminated as a result of Government shutdown of businesses. Frustration could conceivably bring a lease to an end where it can't be performed due to an unforeseen event resulting in the lease being radically different from that agreed by the parties.

Even the Courts do not deal with it regularly - the last time the High Court looked at the issue was in 1926! Judges will be loathe to readily rule that a lease is frustrated in these unique times. There is a tipping point as to when the obligations under the lease will be "frustrated". For example, if a Government order was made requiring the shutdown for a day or a week, that lease would not be frustrated. The longer the shutdown period is in force, the more likely the contract is terminated as its performance may be frustrated.

A good example is the unsuccessful case brought in Hong Kong in 2004 where a tenant claimed the lease was frustrated because the business was shut down for 10 days due to the SARS virus.

Each case would need to be considered separately to determine whether the circumstances would amount to a frustration.

Key Contact: Alex Bannister, Special Counsel, Commercial Disputes

31 March: Standing down employees due to COVID-19

Careful consideration should be given on a case-by-case basis as to whether the stoppage of work genuinely renders employees incapable of being usefully employed, writes Aaron Goonrey in this piece for Australian HR Institute (AHRI).

Key Contact: Aaron Goonrey, Partner, Workplace Relations & Safety

30 March: Tools down for the construction industry?

Natasha Stojanovich looks at how Australia's $360 billion construction industry is responding to the challenges of COVID-19.

Read more here.

Key Contact: Natasha Stojanovich, Partner, Insurance Law & Litigation

27 March: Should I terminate a service agreement if I can no longer provide the services?

As a service provider in these difficult times, you should do whatever it takes to keep your service agreements in operation - even if that means varying the terms to provide for delayed performance or substituting the services provided.

COVID-19 will pass. Your business will benefit greatly on the "other side" if existing service agreements can remain on foot during this challenging time and recommence full operation when circumstances allow.

So, what are your options?

First, check if your agreement contains a force majeure clause, as this may allow you to suspend performance while a force majeure event is ongoing. Check if the definition of "force majeure event" covers the COVID-19 pandemic. Reach out if you need help interpreting these terms.

Second, contact the service recipient to see what alternative arrangements can be put in place commercially. Perhaps the services can be postponed, altered to fit the changed circumstances, or spread out over a longer period. We are assisting clients to negotiate these kinds of arrangements, to help them ride out COVID-19 uncertainty.

You can also ask the service recipient for confirmation that they will not terminate the agreement, or impose penalties for delayed performance, during this time. We are all in this together.

Key Contact: Daniel Hickman, Special Counsel, Corporate

26 March: How will I get my affidavit or statutory declaration witnessed, with self-isolation and social distancing rules changing daily?

Getting signatures for affidavits and statutory declarations has been a tricky issue for us in the past few days. We've had clients and lawyers needing to sign affidavits before a witness, and property dealings and court documents needing to be lodged with original ink signatures, all while working remotely from home.

On Wednesday in NSW, #covid19 "emergency measures" legislation came into effect to enable regulations to be made for alternative arrangements on the signing and witnessing of documents, and the verification of identity. The courts are also being flexible. The Federal Court, for example, is accepting the filing of unsworn affidavits on the understanding they will be sworn or affirmed when circumstances allow.

The devil will be in the detail of the upcoming regulations. Our legislators have to find a balance between being flexible for business and lawyers while not opening the door for fraudsters.

As the week has progressed, agencies we have been dealing with have become more flexible but we still had an instance where four separate people had to handle the same crucial document in order to get it lodged!

As we're finding, there is always a practical solution and we're communicating like never before to keep our clients' matters moving.

Key Contact: Bonnie-Anne Talese, Lawyer, Commercial Disputes

25 March: The nature of my business doesn't allow for remote working. How can I minimise the impacts of COVID-19 on my business and staff?

1. Consider whether it's necessary for the employees to work from home (WFH) at all. Unless there is, among other things, "a stoppage of work for any cause", eg. a government mandated shutdown affecting your business, staff may still be able to continue to work. Review government stimulus packages available to continue employing staff.

2. If the business remains open and WFH is not an option, continue to direct staff to follow the social distancing guidelines on the Department of Health website. Set up the workplace, if possible, according to these guidelines.

3. If staff cannot be utilised during a downturn and cannot WFH, look at accrued but untaken leave that they may take (eg. annual leave and long service leave).

4. Circumstances may amount to a stand down of staff (without pay). However, please seek legal and financial advice before proceeding to this step. Finally, consider contacting your counterparts in other industries who may be able to utilise your staff's expertise and skills during a period of unpaid leave/stand down.

Key Contact: Aaron Goonrey, Partner, Workplace Relations & Safety

25 March: Will we see more insolvency law relief for business?

We will see more changes to insolvency rules to give business some clean air during this emergency.

For six months, a company can't be wound up for a debt less than $20,000. For larger debts, the time to pay before a wind up starts is pushed out to six months.

A company can incur debt in the ordinary course of business and its directors won't become liable for the debts if the company is insolvent. The jury remains out on these changes!

Under new omnibus legislation, for the next six months the Treasurer can make legislative instruments to modify the operation of specified provisions of the Corporations Act in relation to classes of persons, or to exempt classes of persons. The Treasurer will be able to move quickly to facilitate business continuation at this time and mitigate the economic impacts.

What might we see? Further restrictions on business debt recovery and against directors' guarantees? Will commercial landlords become handcuffed? Payments while insolvent to key business suppliers over other creditors (such as the ATO) may be okay for a while? Voluntary administrations, a key restructuring tool, may lose some red tape and become easier and cheaper to implement?

It's time for creativity. Let the lobbying of the Treasurer begin!

Key Contact: Keiran Breckenridge, Special Counsel, Commercial Disputes

24 March: How can I minimise the impact of working from home on my employees' mental health?

Switching to a more isolated working environment can be an unexpected challenge for many employees. To limit any negative impact, it's important for employers to encourage their staff to remain connected with their teams and supervisors. Tools and strategies include:

• Managers performing frequent verbal check-ins with their direct reports and asking what can be done to improve any concerns with the arrangement
• Encouraging employees to get some daily exercise, preferably outside, to minimise the risk of people going days without leaving their home
• Helping employees to develop routines for working at home, including scheduled breaks and meal times
• Providing updates on any new or changed policies implemented in relation to working from home
• Creating opportunities for employees to socialise by using available technology

If an employee is working from home during the #covid19 outbreak and inform their employer that they are struggling with their mental health, it is important that their employer takes steps to address the employee's concerns. Working from home may be more difficult for employees with existing mental health problems. If an employer is aware of an employee's pre-existing mental health issue, they should reach out and offer additional support.

Key Contact: Apryl Geale, Lawyer, Compensation Law

23 March: When social distancing together, how close is too close?

Love in a time of COVID-19

In this time of 'social distancing', many couples are finding themselves being 'romantically crowded'. As many employers ask people to work from home, couples are spending a lot more time together under difficult circumstances. But how close is too close?

The lifting of quarantine restrictions in Wuhan earlier this month revealed a significant rise in separation and divorce among local couples. Chinese officials claim this social phenomenon was due to self-isolated couples spending too much time together.

Couples working from home, practicing social isolation or living in quarantine can face challenges in maintaining appropriate boundaries. This, of course, can be even more difficult when you are responsible for others in the home. It is important that you and your partner communicate with each other about how you are going to support one another in this time, emotionally, physically and also with the care of your children.

What is clear is that home isolation or quarantining can be very polarising. Lander & Rogers' family lawyers have significant expertise in all aspects of financial and children’s matters and related issues involving married and de facto couples.

If you too are considering separation, it is important to seek expert advice.

Key Contact: Stephanie Doyle, Partner, Family & Relationship Law

22 March: Leading lawyers through the crisis (part 2)

Agility is more important than plans

To navigate complexity requires constant experimentation, rapid learning and adjustment. Your job is to create and hold an environment where people feel "safe to fail" despite the pressure to succeed. Be ready to amplify experiments that work and quickly pivot from those that don’t. Hold your attachments, assumptions and beliefs lightly: put everything on the table.

Language matters

Are we in a "crisis" or a "complex situation that will require the best of our creativity and judgement to survive"? One suggests self-efficacy and pragmatic optimism and the other doesn’t. The work of leadership is to expose your people to the challenge you all face and enlist their focused energy in solving it. Panic is not a useful emotion in this endeavour.

Diversity of inputs is key

When up is down you need to quickly enlist and empower the people with the actual capability and expertise to help. Do a capability/strengths audit of your team and the broader organisation to understand your resources and reveal your hidden capabilities. The work of leadership is then to manage at the boundaries: where these new diverse teams and your existing status hierarchies collide. A crisis does not always overcome immunity to change.

Key Contact: Anthony Kearns, Chief Client Experience Officer & Practice Group Leader - Consulting

22 March: How will I lead my team through the crisis?

The first of two posts for lawyer-leaders

1. Practice pragmatic optimism The impacts of COVID-19 will be profound, prolonged and the toughest decisions are ahead of us. There is no value in shielding yourself or your people from this reality. James Stockdale put it best "You must never confuse faith that you will prevail in the end which you can never afford to lose with the discipline to confront the most brutal facts of your current reality, whatever they might be". Be honest with your people and build a team of people around you who can be honest with you.

2. Practice Emotional Agility If you are human you are feeling something at the moment: anxiety, sadness, anger, fear. Notice your feelings, name them and talk about them with your team. Notice your "hooks" and the things that are holding you "in" emotions. Cherish the daily practices that help you maintain your equilibrium: mindfulness, walks, nature, surfing.

3. Practice compassionate dialogue is the currency of leadership and never more so than in genuine complexity. Devote time every day to coming "alongside" (virtually) as many members of your team as you can. Just sit for a time in empathy and curiosity. Ask them how they are doing, listen deeply to the whole person and tell them how you are feeling.

Key Contact: Anthony Kearns, Chief Client Experience Officer & Practice Group Leader - Consulting

20 March: What obligations does an employer have when requiring employees to work from home?

Many employees don't typically work from home and may not be equipped to set up a safe, comfortable and productive remote working environment.

Employers should maintain open lines of communication with all staff. Encourage them to raise safety concerns. Providing an easy checklist for employees is a great way for them to consider whether they can work from home, whilst also addressing your health and safety obligations.

Provide staff with helpful information around such questions as: What equipment do I need to set myself up at home? Where can I get the equipment I need to work effectively and safely? Generating discussions around these questions will encourage your staff to be open and honest about any changes you may make to their work surrounds.

The home work environment needs to be safe and ergonomically suitable. You can inspect and risk-assess home work environments by arranging virtual inspections via video conferencing, Facetime or WhatsApp. Encouraging your employees to complete a survey about their home work environment allows you to prioritise those that need the most assistance.

Of course, once risks are identified, employers should take active steps to eliminate or minimise those risks as quickly as possible.

Key Contact: Stephanie Taylor, Special Counsel, Compensation Law

20 March: How can I protect my data while working remotely?

Moving from the office to working remotely can create security risks, especially when using personal devices. Opportunists are already using COVID-19 as a subject matter for phishing scams, hoping the unsuspecting will disclose personal information or access to company accounts.

To guard against a potentially costly data breach:

1. Be cautious about any COVID-19 themed email seeking personal information. Look for tell-tale signs of spelling or grammatical mistakes within the email and generic greetings. Always verify an email address before downloading or clicking on an email link. If you are unsure, don't open and call a colleague!

2. Implement robust password management systems. Create policies prohibiting work on public networks or restricting public access through VPN connections only. Log out or lock your screen when not in use and don't leave devices unattended.

3. Communicate cyber security policies to employees clearly and frequently and conduct remote training as necessary. Ensure anti-virus is in place and fully updated on all devices.

4. Define a clear procedure to follow in case of a security incident and provide adequate support. Good cyber security will guard against data breaches, like good hygiene will curb the spread of COVID-19.

Key Contact: Colleen Palmkvist, Partner, Insurance Law & Litigation

19 March: How do we sign contracts, agreements or forms when everyone has to work from home?

Many contracts can be signed digitally using a digital signing platform such as DocuSign and AdobeSign.

These platforms offer an alternative to in-person execution of documents. Signatories can be anywhere and use any device, provided they have an internet connection and email access.

Generally to be effective in Australia parties relying on electronic signing need to demonstrate that the signatory personally considered, approved and intended to sign the document and be bound by its contents. This is known as an "authenticating intention".

Digital signing platforms can identify the device used to sign, its location, the email address used, the time of opening, viewing and signing the document, as well as providing other useful features such as additional authentication via SMS in order to demonstrate "authenticating intention".

Lander & Rogers uses DocuSign as an e-signature platform. Whilst not appropriate for every kind of document, a digital signing process can save you time and prevent disruption to your businesses' day to day operations during the COVID-19 pandemic.

Please reach out if you would like to discuss DocuSign's functionality and suitable applications.

Key Contact: Mark Burrows, Lawyer, Real Estate & Projects

19 March: How will my property settlement be impacted and what do I need to consider?

Some key considerations for property settlement matters in light of COVID-19:

1. If you are in the process of negotiating a settlement, ensure that you have updated valuations for the parties' superannuation and/or real property interests.

2. Consider whether it is appropriate to obtain an updated Business Valuation.

3. Final property orders often contemplate a super split in dollar terms. It may be preferable to express the split in percentage terms. In fact, practitioners should act with caution expressing any split in dollar terms.

4. If you have recently finalised your property settlement including a super splitting order, the proposed agreement should be served on the Trustee of the super fund as a matter of priority.

5. If you have entered into an agreement which now seems "unfair" due to the downturn in the economy, there are limited options to have the orders and/or the agreement set aside.

6. Whilst many Courts remain open, non-urgent property matters may be adjourned or conducted by telephone. ADR is a preferable option. Lander & Rogers is equipped with the latest video conferencing technology, which we can implement to assist our clients obtaining remote legal advice and to reach an expeditious resolution of their matter.

Key Contact: Claire Walczak, Senior Associate, Family & Relationship Law

18 March: Working from home - what do employers need to consider?

Be Alert Not Alarmed - the following is our Quick Guide for Employers regarding WFH. As the situation develops, we will continue to keep you informed with measures that employers should consider.

Click here to view the Quick Guide.

Key Contact: Aaron Goonrey, Partner, Workplace Relations & Safety

17 March: I have a matter in court this week, will it still be on?

UPDATE: The Federal Court has now vacated all in-person attendances at its Court buildings until 30 June 2020. Specific exceptions are allowed only by the Court.

Our courts must remain operational while responding to COVID-19. Commercial matters aside, the vulnerable in our communities need to be protected. We continue to monitor this evolving situation.

Courts are minimising the need for parties to come to court - staggering listings to reduce interactions, greater use of the online court process and telephone/video links. Cases are being evaluated and prioritised.

If you have a matter listed for hearing, check with your lawyer as to the arrangements being made.

The Federal Court is calling for "full cooperation" of parties and their lawyers. New filings are to be triaged for urgency. Only urgent mediations will proceed. Judges and Registrars' Lists will be conducted on the papers and by telephone mostly. Adjournments until later in the year are on the cards. Full Court appeal matters for May have been reviewed; some will be postponed, or resolved in other ways. The National Judicial Registrar will be busy as the main contact point for enquiries.

If you are sick or have travelled from a high risk country, you should not attend a court. Talk to your lawyer ASAP about the listing of your matter.

It's not quite business as usual but the courts and lawyers are pretty adept at overcoming hurdles like those we are facing.

Key Contact: Keiran Breckenridge, Special Counsel, Commercial Disputes

16 March: Can I terminate a service agreement if I don't need the services anymore?

Before you even think about terminating an agreement, you should consider your relationship with the service provider and how important it will be when the crisis passes. You may wish to find a commercial solution such as agreeing to delay the services until a later date or substituting services for ones you need.

If you decide to terminate, your ability to do so will depend on the termination provisions in the agreement. There are really two relevant options.

If your service agreement contains a "termination for convenience" or "termination without cause" clause, you're in luck - you can terminate the agreement without providing a reason (subject to any notice requirement).

Your service agreement may also contain a termination right if there is a "force majeure". You will need to check the particular definition of "force majeure event" to see if it covers the COVID-19 pandemic and how long the force majeure event needs to last to activate the termination clause. We can help you interpret these terms.

But beware, if you terminate the agreement and are not permitted to under the terms, the service provider may sue you for breach of the agreement and seek to recover its loss. You should tread carefully when considering termination.

Key Contact: Daniel Hickman, Speical Counsel, Corporate