On 14 July 2021, the NSW Government passed the Retail and Other Commercial Leases (COVID-19) Regulation 2021 which limited the exercise of certain rights by a lessor under retail and other commercial leases for a breach of the lease if:

• the lessee is a business that qualifies for certain grants due to the impact of the COVID-19 pandemic; and
• the breach is a prescribed breach that occurs between 13 July 2021 and 20 August 2021.

Despite this, the 2021 Regulations did not initially provide for rent relief (waiver or deferrals of rent), or prohibit the increasing of rent under a lease as the Regulations made in 2020 did - they only prohibited landlords from taking certain "Prescribed Action" against a tenant between 13 July 2021 and 20 August 2021.   On 13 August 2021, in response to the surge of COVID-19 cases, the NSW Government passed the Retail and Other Commercial Leases (COVID-19) Amendment Regulation 2021 which:

• extended the Prescribed Period to 13 January 2022 (so that the Prescribed Period became the 6 month period from 13 July 2021 to 13 January 2022); and
• re-introduced the requirement for landlords and tenants to renegotiate the rent payable under Impacted Leases, in order to take into account the impact of the COVID-19 pandemic and the leasing principles set out in the Code.  

This update from Property and Commercial Special Counsel Alex Bentancor takes a look at the latest changes, and how they're set to impact both retail and commercial landlords and tenants.

Join Professor Catherine Bennett, Deakin’s Chair of Epidemiology and Holman Webb Workplace Relations Partner Alicia Mataere and Associate Lee Pike on Thursday 26 August as they discuss:

• How has Delta changed the game?
• How can businesses manage the risk of Delta in the workplace?
• Can you ask employees to declare their vaccination status?
• What are the potential consequences of a Delta outbreak in your workplace?
• What will the workplace look like following COVID-19 and Delta?

Click through to register your attendance today!

The highly-anticipated changes to the Franchising Code of Conduct are now in force.

These changes follow a parliamentary inquiry into the Code, which began in 2018. The inquiry saw many franchisees explain how their franchised business failed, and the consequences on their lives. It also exposed questionable business strategies by some franchisors, and has directly led to at least one enforcement action by the Australian Competition and Consumer Commission.

It is important for both franchisors and franchisees to understand that significant changes to the Code are now in force – many of which involve imposing civil penalties for breach.

This article contains a summary of five core areas that have seen significant change. 

On 10 August 2021 both Houses of Parliament passed the Treasury Laws Amendment (2021 Measures  No 1) Bill 2021, enabling companies to sign and execute documents, hold meetings, provide notices relating to meetings and keep minutes using electronic means or other alternative technologies, until the end of March 2022.

The Act will formally take effect once it receives Royal assent.

On 25 June 2021, the High Court of Australia refused two insurers special leave to appeal the decision of the NSW Court of Appeal in HDI Global Specialty SE v Wonkana No 3 Pty Ltd [2020] NSWCA 296.

The NSW Court of Appeal unanimously held that insurers could not rely on an exclusion clause contained in certain policies to refuse indemnity for business interruption claims arising out of the COVID-19 pandemic.

The first test case does not mandate a blanket approach to policy coverage for all business interruption claims. Each will turn on the language of each policy wording and the circumstances of each claim.

Insurers have sought further judicial guidance on a number of other matters affecting the operation of business interruption policies in the context of COVID-19 in a second test case, due to be heard by the Federal Court later this year.

This article was originally published by the Law Society of New South Wales in the Law Society Journal, Issue 80 August 2021.

Workplace Relations Partner Alicia Mataere recently presented to members of the Association of Corporate Counsel on the topic of Casual Employment Recent Changes, Compliance, Enterprise Bargaining and Award Flexibility.

Click through to view the webinar recording.

In the lengthy Federal Court judgment in Transport Workers Union of Australia v Qantas Airways Limited 2021 FCA 873 delivered on 30 July 2021, Lee J  found that Qantas took adverse action when it made over 2,000 workers redundant, and that the airline could not prove that its reasons for doing so were not prohibited by the Fair Work Act 2009. 

The consequences of the breach are yet to be determined.

In the Full Federal Court decision of Liberty Mutual Insurance Company Australia Branch trading as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd [2021] FCAFC 126 given on 20 July 2021, the Full Court addressed the construction and scope of thirdparty liability policies in the context of claims made by a building and construction company for losses occurring as a result of the manifestation of serious defects within a building, during the defects liability period.

Key Take Away

1. The Full Court maintained that in the event of ambiguity in an insurance policy, the context (including the market) in which the parties are operating, as well as the commercial purpose of the policy, must be considered (Icon’s Cross Appeal); and
2. Similarly, the Full Court considered that the context of Insurance Policies must always be considered in circumstances where the definition of ordinary words are not clear (QBE Appeal).
3. The Full Court ultimately prefers Policy Interpretation which refers to extrinsic contextual material where Policy terms are not clear.

Retail and Commercial tenants in NSW are likely familiar with the operation of the provisions of the National Cabinet Mandatory Code of Conduct – SME Commercial Leasing Principles and the NSW Government’s regulations that followed to give effect to the Code in response to COVID-19 pandemic during 2020 and, for some tenants, the first quarter of 2021.

This piece includes a summary of the Code and the regulations that were made to give legal effect to the Code from April to December 2020 and, to a more limited extent, the first quarter of 2021.

On 21 June 2021, Shadow Assistant Minister for Cyber Security, Tim Watts introduced the private members Ransomware Payments Bill 2021 (Cth) into Parliament. The Bill would require the Commonwealth Government and big businesses to report ransomware payments to the Australian Cyber Security Centre (ACSC).

The Bill was introduced in response to the 200% increase in reported ransomware attacks on Australian organisations - including prominent incidents affecting companies such as JBS Foods and Nine Entertainment.