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LIV & Government FAQs for the legal profession

Message to Members 18 January 2021

From Monday 18 January 2021, office based workplaces in the private sector are able to have up to 50 percent of the workforce on site on any one day. Workplaces with fewer than 40 staff can have up to 20 staff onsite – subject to density quotients.

The restrictions regarding masks indoors were relaxed from 11.59pm on Sunday 17 January 2021. Face masks are strongly recommended when physical distancing cannot be maintained and must be carried at all times.

See Statement from the Premier of 14 January 2021.

See COVIDsafe Summer – How we work in Victoria (PDF).

The COVID-19 Hub includes a range of guidance on COVIDSafe planning including a template COVID-Safe plan specifically for law firms and a LIVe Chat Video Recording – Transitioning from Home to Work & Infection Control.

COVIDsafe Plans 

Employers must also ensure that offices have a COVID Safe Plan if there are employees attending the office. Refer to the Workplace Directions (No 17) which came into effect at 11.59 pm on 17 January 2021 for more information. See also the LIV’s Checklist for Legal Practices with Restricted Operations here (PDF). 

This includes complying with the density quotients as set out in the Workplace Directions No.17 at clauses 6(13) and 6(14)

See also clause 6(5) of the Workplace Directions No.17 if you have no workers working at a Work Premises.

Restrictions  Victoria LIV FAQs

UPDATED:  18 January 2021

Disclaimer

These questions and answers are still subject to final confirmation from the Department of Health and Human Services and have been compiled with the best of our knowledge based on Chief Health Officer Directions to date.

Overarching statements:

  • The key priority of government and the Chief Health Officer at the moment is to restrict all community movement and interaction to protect against a serious risk to public health  especially in workplaces.
  • We understand that this is a difficult and challenging time for members of the legal profession, but the health and safety of the Victorian community is the big driver and rationale behind these recent changes.
  • There are many activities which solicitors can now conduct for clients remotely rather than in person. See the LIV COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 Practice Note
  • Ultimately, determining whether a particular activity is allowed is a matter of legal interpretation of the relevant Chief Health Officer directions. You will need to read all the new directions and form your own conclusions about whether the detail of the proposed activity is permitted or restricted.

Below are a few frequently asked questions and answers. The coronavirus response is constantly evolving, and the LIV is working hard to provide timely updates to its members. We recommend that you check the DHHS website for more information and advice about current restriction levels in Victoria.

The LIV COVID-19 Hub is also regularly updated with FAQs, practice notes, templates and checklists. You can also call the LIV Practice Support Line on (03) 9607 9378.

Q1. Can I go to my office?

Clause 5 (1) of the Chief Health Officer’s Workplace Directions (No 17) (the Directions) has recently been updated as follows:

5) Operation of a Work Premises

(1) An employer:

(a) may permit workers to work from the employers Work Premises, to the extent the Work Premises is permitted to operate under the Restricted Activities Directions (Victoria);

(b) must allow a worker to perform work at the workers place of residence or another suitable premises which is not the Work Premises, where it is not reasonably practicable for the worker to work from the Work Premises; and

(c) in relation to office-based Work Premises:

(i) must permit workers to attend the Work Premises where it is not reasonably practicable for the worker to work at the workers place of residence or another suitable premises which is not the Work Premises;

(ii) other than for Work Premises of Victoria Police, must not require workers to work at the Work Premises if it is reasonably practicable for the worker to work at the workers place of residence or another suitable premises which is not the Work Premises; and

(iii) may permit workers to attend the Work Premises in accordance with the requirements of the COVIDSafe Plan for that Work Premises.

Note: if a worker was already permitted to work at a Work Premises as at 11:58:59pm on 29 November 2020, subclause 5(1) is not intended to operate in a way that would prevent that worker from working at a Work Premises from 11:59:00pm on 29 November 2020.

(2) An employer must comply with the Workplace (Additional Industry Obligations) Directions where it applies to that employer.

(3) Where an employer permits or requires work to be performed at a Work Premises, the employer must comply with clauses 6 to 8.

(4) Workers must not attend a Work Premises if they have been tested for SARS-CoV-2 because they are symptomatic whilst awaiting the result of that test (excluding where a worker is awaiting results of a test taken in accordance with a surveillance testing obligation under the Workplace (Additional Industry Obligations) Directions).

The Directions define “reasonably practicable” to have its ordinary and common sense meaning. Employers are required to determine what is reasonably practicable, which will depend on the individual circumstances of their workers. This may involve the balancing of a number of relevant factors such as the well-being and safety of a worker, access to required technology and systems at home, and the specific needs of clients. If it is not possible to deliver legal services remotely, a worker may leave their home to provide that service in person as it is not “reasonably practicable” to provide that service remotely.

On 28 October 2020 the LIV wrote to the Honourable Jill Hennessy MP seeking clarification on the easing of restrictions vis a vis law practices.  The following is an excerpt from the letter of The Honourable Jill Hennessy MP to the LIV dated 11 November 2020.

"While acknowledging that the threshold has been adjusted from 'should' to 'must, the use of the reasonably practicable test will afford employers greater flexibility than under the First and Second Step of the Roadmap. You mention in your letter, as an example, that many of your members serve elderly clients or those who do not have access to technology. I can confirm that if an elderly client requires legal support which cannot be delivered remotely, under the Third Step a worker may leave their home to provide that service 'in person,' as it is not reasonably practicable to provide that service remotely." 

Q2. Does the 50% cap apply only to staff or everyone I normally have in the office?

The cap applies to everyone who is normally in the office who has been working from home. Essential workers are not included as part of the cap.

Your 50% cap should encompass the staff, contractors and working visitors you will have on site that day.

Your staff who normally work on client sites will be included in their worker cap if your client invites them on to site.

Q3. Does the 50% cap apply per site or per business?

Every business operates differently.

The intent of the worker cap is to sensibly manage the flow of people thorough the transport network and once they arrive at the office, the flow through the lifts and entry/exit points.

You can apply the aggregate cap how you think is most relevant to your operation. In your COVIDSafe plan please (i) describe your application of the worker cap, (ii) describe how you are managing flows at key points.

General Issues

Q4. Can we certify copies of documents remotely?

No. The COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 do not provide for the online certification of original/true copies of documents. If the client holds the original, you will need to ask the client to send the original documents to you, and you will need to certify them in the conventional way. 

Mental Health & Wellbeing Support

Q5. Where can I access mental health support during this time?

We recognise that the current situation continues to challenge our resilience.  If you are feeling overwhelmed or just struggling to cope please ask for help. LIV Members can contact the LIV’s confidential support service ‘Converge’ 24/7 on 1300 687 327.  You should also check relevant government websites to see what mental health services may be available to you.