Stage 4 Restrictions – Guidance for registered practitioners based in Victoria or taking appointments with assets in Victoria
Current as at 4pm Wednesday 5 August 2020
(NB – Members should regularly check for updates on this.)
With the implementation of Stage 4 Restrictions in Victoria (as at 3 August 2020), the ability of registered practitioners to attend to their duties in the ordinary course is impacted.
It’s important to be aware that accountants and lawyers are closed for on-site work in accordance with the Premier's statement on business restrictions. You may not work from your office under these restrictions.
While much of the work undertaken by practitioners can be done remotely, we are aware that attendance at company premises or debtors' residences is usual, especially in the early stages of an appointment. This changes under Stage 4 Restrictions.
We note that the Andrews Government specifically rejected calls for accountants in general public practice to be declared an Essential Service despite the approach of nine accounting bodies.
Staff workplace health and safety must be the highest priority at all times. Providing your staff a fully COVID-19 safe environment is essential, to the extent where safety may be considered the paramount concern over other requirements.
We also note that Victoria is currently declared as a State of Disaster. If you are concerned about how your other statutory obligations reconcile with current health directions, you may wish to consider the over-arching effect that a State of Disaster declaration may have on taking a balanced approach to those obligations.
The general view is that there is no imperative for the activities of a Registered Trustee which would normally see you attending a residential or business premises that would be sufficient to be classified as an essential service during these Stage 4 Restrictions.
We note that the Official Receiver has taken the approach of avoiding in-person activities (see Practitioners: COVID-19 and updated advice from the Inspector-General).
If an urgent matter arises that would ordinarily necessitate in-person attendance, we suggest liaising with AFSA.
We note ASIC's guidance (Statement on the COVID-19 pandemic) which says where the COVID-19 pandemic affects your ability to comply with your statutory requirements, ASIC will take these circumstances into account and consider giving a ‘no-action letter’.
You may take on an appointment as an officer of a business which falls into the ‘open (for on-site work)’ or ‘restricted operations/industry specific obligations’ categorises as classified by the Victorian Government.
You should adhere to the specified requirements, including having COVID safe plans for all employees and allowing employees, especially those in high risk health categories, to continue to work from home.
In circumstances where an appointment is taken over a non-essential business which is not trading, it would be prudent to delay taking physical possession under the current health directive.
It is important that practitioners constantly update themselves with the latest advice from the Chief Medical Officers in whatever jurisdictions that they are operating in and follow that advice at all times. Failure to do so is likely to create an uninsurable risk to you and your practice.
To that end, we also suggest speaking with your insurance broker on an individual appointment basis to review your risks and insurance implications. We are aware that some leading brokers are providing guidance documents on a case-by-case basis given how rapidly the situation continues to evolve.
Document your decision
It is vital that you prepare contemporaneous file notes for your external administrations, setting out how the COVID-19 pandemic has impacted your ability to comply with your statutory obligations, including any restrictions in place which prohibited you from attending to matters in person.
Practitioners should continue to monitor Federal and State Government announcements for changes in the restrictions and requirements as well updates from ASIC and AFSA regarding their expectations.
as at 11:30am Monday 11 August 2020
ARITA notes the Victorian Government advice which references 'insolvency services' under permitted 'banking functions' that may continue to operate in Stage 4 restrictions.
ARITA was aware of this advice before our update (above) was issued and it was something we considered extensively. ASIC was seeking clarification from the Victorian Government if insolvency services were able to be provided by non-financial institutions.
Our latest information is that the Victorian Government has not responded to ASIC on this.
On that basis, we do not believe that registered liquidators or trustees could rely on this for an exemption.