Articles in Category: Employment matters

Thank a property manager day

Thank a property manager day 27 November 2020

Thank a property manager day is a day 'invented' by Stacey Holt in 2012. A day that is long overdue to celebrate. I know, everyday is thank a property manager day. The day is usually celebrated on the last Friday of November each year.

27th November 2020

 A day for all to stop, think, and celebrate the wonderful role that property managers play in society.

Organise a breakfast, lunch, morning tea, something, and stop and say thank you career managers of tenancy and property. Even if you have to thank yourself (if that is the case, contact me and I will thank you!)

I would love to see your photos of celebration!  #thankapropertymanager #thankapropertymanagerday

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Property Management Excellence

Stacey Holt Real Estate Excellence

Stacey Holt education and training

The Employment Law Implications of COVID-19

COVID-19 - Employment Law Implications Email sent to www.realestatexcellence.com.au from Carter Newell Lawyers

Andrew Shute, Partner and Lara Radik, Special Counsel

The World Health Organisation has declared COVID-19 (the Novel Coronavirus) a pandemic. So what does that mean for employment rights and obligations?

March 2020 (email received by Real Estate Excellence 18th March 2020)

At the outset, please note the following in respect of the information in this alert:

  • It is current at the time of publishing. Due to the rapidly evolving nature of the guidance surrounding self-isolation, it is prudent to regularly check the information available on the Fair Work Ombudsman website and the Department of Health website;
  • It is general in nature. Additional rights or obligations may arise under an award, enterprise agreement, employment contract or workplace policy applying to a particular employment relationship. It also remains possible that Parliament may enact legislation to address the impact of COVID-19 in respect of employment matters;
  • It does not apply to contractors. Where a business has engaged contractors, the terms of the contract should be considered on a case by case basis in determining whether the contractor’s services can be varied, suspended or terminated.

What happens if an employee tests positive for coronavirus?

It is important that employers seek immediate advice from health authorities if there is a confirmed case of COVID-19 in the workplace. Employees who have contracted the virus cannot attend the workplace, and the employer can direct the employee to stay away from work and to obtain medical clearance before returning to the workplace. In making such directions, employers should ensure their actions are reasonable in the circumstances and are supported by medical evidence or advice.

Full time and part time employees who have contracted COVID-19 are entitled to paid sick leave for the duration of their incapacity for work (assuming the employee has sufficient accrued personal leave).

An employer is entitled to request a medical certificate or other evidence of the employee’s incapacity for work.

What happens if an employee’s family member tests positive for coronavirus?

If a member of an employee’s household or immediate family has contracted the virus and requires care, the employee is entitled to paid personal (i.e. carer’s) leave (assuming the employee has sufficient accrued personal leave).

The Fair Work Act further contemplates that paid personal leave is available when a member of an employee’s household or immediate family requires care or support because of an unexpected emergency affecting the member. In circumstances where an emergency has been declared in several Australian states and territories, it is arguable that employees are entitled to paid personal leave in order to support any members of their household or immediate family affected by COVID-19 (regardless of whether the member of their household or immediate family is ill).

An employee in these circumstances will be required to self-isolate in any event (discussed in further detail below) and should be permitted to work from home or use their accrued leave entitlements for the duration of the self-isolation period.

Whilst an employer cannot force an employee to take paid personal leave, the employee is not entitled to be paid unless they use their paid leave entitlements.

Casual employees are entitled to two days of unpaid personal (i.e. carer’s) leave per occasion when a member of their household or immediate family requires care and should be permitted to decline shifts for the duration of any self-isolation period.

An employer is entitled to request a medical certificate or other evidence to support an employee’s request for personal leave.

What happens if an employee is stuck overseas or is unable to return to work due to quarantine or self-isolation?

Where an employee was sent overseas for work, and is prevented from returning to Australia, the affected employee will be entitled to full pay.

Where an employee is stuck overseas following personal travel, they are not entitled to be paid unless they rely on paid leave entitlements. At an employer’s discretion, the employer may permit the employee to work remotely from overseas or may negotiate paid or unpaid leave arrangements.

All people entering Australia from midnight on 15 March 2020 are required to self-isolate for 14 days. The Fair Work Act does not specifically cover these circumstances, so it is advised that an arrangement be negotiated between the employer and the employee. Such arrangements may include:

  • Permitting an employee to work from home or another location;
  • Permitting an employee to access any accrued leave entitlements; and
  • Any other paid or unpaid leave arrangement (including, for example, allowing employees to take annual leave in advance of accrual).

Any person who has been in close contact1 with someone who has a confirmed case of COVID-19 must self-isolate at home and cannot return to work until receiving medical clearance. As explained above, such an employee may be entitled to access paid personal (i.e. carer’s) leave. If paid personal leave is not available or not appropriate (for example, because the employee lives alone and had close contact with a friend who tested positive for COVID-19), work from home or leave arrangements should be negotiated between the employer and the employee.

What happens if an employee chooses to stay home as a precautionary measure?

Any person who has been in casual contact2 with someone who has a confirmed case of COVID-19 may continue to attend work while they remain well. Any such person will be required to self-isolate if they begin to experience symptoms.

Employees who choose to stay home following a casual contact or for other precautionary reasons may seek to negotiate an arrangement with their employer taking into account what is reasonably practicable in the circumstances (such as working from home). Alternatively, the employee may choose to take some form of unpaid or paid leave. In this case, normal leave application processes will apply. If the employee is not relying on paid leave entitlements, the employee is not entitled to be paid.

An employee does not have an entitlement to stay home or refuse to perform work unless the employee has a reasonable concern about a serious risk to their health or safety from immediate or imminent exposure to a hazard. Employers should take a common-sense approach to any such scenario, including consideration as to whether:

  • The employee is in a high risk category; or
  • The employee is in regular contact with a person in a high risk category.

It will almost always be unreasonable for an employer to refuse an employee’s request to stay home on a precautionary basis if the employee is willing to take unpaid leave for the duration of their absence.

Can an employer direct an employee to stay away from work as a precautionary measure?

The model Work Health and Safety (WHS) laws do not expressly permit an employer to direct a worker to stay away from work as a precautionary measure. The WHS laws do, however, require employers to take reasonably practicable steps to ensure the health and safety of their workers and others at the workplace. This duty requires identifying risks at the workplace and doing what is reasonably practicable to eliminate or minimise those risks. In other words, employers are required to undertake a risk assessment taking into account all of the relevant information from the health authorities and the prevailing circumstances at the workplace.

Depending on the circumstances, directing workers and other people to stay away from the workplace as a precautionary measure may be considered a reasonably practicable step in eliminating or minimising the risk of the virus spreading, as well as minimising other risks that may be created by the virus (including physical, psychological or other harm). Particularly where employees have the ability to work from home, a risk assessment conducted by the employer may point towards a requirement that all such employees work remotely.

In other circumstances, directing employees to stay away from work may not be reasonably practicable, particularly where employees do not have the ability to work from home. In these circumstances, there may be other controls an employer may implement in order to minimise the risk of the virus spreading (including increased cleaning arrangements, and supply of hand sanitizer, gloves, etc.) and minimising other risks created by the virus (including more regular paid breaks, provision of counselling to employees, etc.).

In deciding what steps are reasonably practicable in a particular workplace, it is essential that the employer:

  • considers the specific context of the workplace; and
  • consults with employees about the most suitable approach to be taken to minimise the risk presented by COVID-19.

What should an employer consider when directing employees to work from home?

In addition to conducting a risk assessment (as outlined above), employers should review their obligations under any applicable enterprise agreements, awards, employment contracts or workplace policies. Employers should consider the nature of the work, and whether it is suitable for the employee to do at home. Employers should be aware that WHS laws still apply when an employee is working from home, and employers must therefore take reasonably practicable steps to ensure home workspaces are without risks to health and safety.

What if I need to make employees redundant or reduce working hours?

All awards and enterprise agreements impose obligations on employers to consult with employees prior to any major changes, such as redundancies or reduced hours. These consultation processes require the employer to provide written notice to any award or agreement-covered employees who are likely to be affected by the changes, and to have open discussion about steps that could be taken to avoid or minimise the impact of the changes on employees.

Avenues which should be explored in order to avoid or minimise the impact of redundancies or reduced hours may include:

  • Inviting employees to volunteer for redundancies or reduced hours; and
  • Inviting employees to voluntarily take paid or unpaid leave.

Can an employer enforce a shut down period or stand down employees without pay?

A shut down is when a business temporarily closes during slow periods of the year, such as Christmas and New Year. Some awards or enterprise agreements allow for more than one shut down period per year. Employers should consult the applicable award or enterprise agreement governing their business to check whether an additional shut down period is allowed. During a shut down period, employers can direct their employees to take annual leave (or unpaid leave if an employee has exhausted their annual leave entitlements).

An employer may stand down an employee during a period in which the employee cannot usefully be employed due to circumstances outside of the employer’s control. In these circumstances, section 524 of the Fair Work Act allows an employer to stand down an employee without pay. It is likely that any unpaid stand down due to COVID-19 will be closely scrutinised, so employers should exercise caution and seek advice before doing so.

Can an employer direct employees not to travel?

Employers can direct employees not to engage in work-related travel. In normal circumstances, however, it is unlikely that employers will be able to direct an employee not to engage in personal travel. In the context of COVID-19, it is reasonable for an employer to require an employee to abide by any limitations on travel imposed by the Australian Government.

Can an employer refuse an annual leave request if an employee is planning to travel overseas?

Pursuant to section 88 of the Fair Work Act, an employer can refuse an employee’s annual leave request if the refusal is reasonable. If an employee is planning to travel overseas during a period of annual leave, there is a strong argument that an employer could reasonably:

  • refuse the annual leave request on the basis of operational requirements, noting the employee will need to comply with the mandated 14 day self-isolation period imposed by the Australian Government for people entering Australia; or
  • make approval of the leave request conditional on the employee’s agreement to take either annual leave or unpaid leave for the duration of the mandated 14 day self-isolation period (if work from home arrangements cannot be facilitated).

What entitlements do employees have if schools or child care centres are closed?

The Fair Work Ombudsman is yet to issue any guidance on this issue. Ideally, employees should be permitted to work from home. If this is not possible (either because the employment is not suited to work from home arrangements, or because the presence of children in the house will inhibit the employee’s ability to complete their work), employees will likely be entitled to access any accrued personal (i.e. carer’s) leave entitlements. As outlined above, an employee is entitled to paid personal leave where a member of the employee’s immediate family or household requires care or support because of an unexpected emergency. Noting several state and territory governments have declared a state of emergency, there is a strong argument that any closure of schools or child care centres will result in a need to care for a child due to an unexpected emergency.

Once any personal leave entitlements are exhausted, the employee would be entitled to any accrued annual leave. In the absence of that, the employee would be required to take unpaid leave.

Can an employee make a workers’ compensation claim if they contract coronavirus in the workplace?

The workers’ compensation schemes differ across states and territories. There are, however, some common elements that would apply to COVID-19. These include the following prerequisites for a valid claim:

  • The worker is covered by the scheme;
  • The worker has an injury or illness covered by the scheme; and
  • The worker’s injury or illness arose out of, or in the course of, their employment.

Whether a claim for contracting COVID-19 will be covered by workers’ compensation will depend on the individual circumstances of the case and the applicable state or territory law. In many circumstances, it will be difficult for an employee to prove that the virus was contracted in the course of employment. This difficulty will be amplified as confirmed cases grow and the spread of the virus through social contact continues.

.....

1 There is a broad definition of close contact, which includes having more than 15 minutes face-to-face contact with a confirmed case, spending more than two hours in an enclosed space with a confirmed case, living in the same household as a confirmed case, and having direct contact with the body fluids of a confirmed case. Ordinarily, health authorities will contact all identified close contacts of persons who test positive to COVID-19 to enforce self-isolation measures.
2 A casual contact occurs where a person has had less than 15 minutes face-to-face contact with a confirmed case in the 24 hours prior to the onset of their symptoms, or who has shared a close space with a confirmed case for less than two hours in the 24 hours prior to the onset of their symptoms.

This article may provide CPD/CLE/CIP points through your relevant industry organisation.

Trust account theft - case studies and risk management

Save your money, save your business

Sourced from the January 2017 Office of Fair Trading Smart Business Bulletin.

Employee fraud cases involving real estate trust accounts are under scrutiny by the Financial Investigations Unit of the Office of Fair Trading. Poor business practices and a lack of supervision can create environments in which dishonest employees use a variety of methods to steal from employers. The two main areas of risk include:

  • cash handling procedures
  • purchases and accounts payable.

Fraudulent activity may result in loss of revenue, damage to credibility, public criticism along with compromising confidentiality of clients. OFT wishes to warn businesses of the potential financial consequences of such fraudulent behaviour.

Case studies examined by OFT’s financial investigators include:

  • An employed property manager, who was also a tenant through the same agency, who took rents paid by other tenants and used them to pay her own rent. The fraud cost the licensee more than $3000 in rent and bond payments, as well as a loss of reputation with the tenants and property owners.
  • An agent who was required to make good a trust account shortfall of more than $14,000 caused by an employee making phony orders for property maintenance services provided by her partner.
  • An agent who found a $200,000 shortfall in their trust account caused by an employee entering false business records and instead transferring the money to themselves.

 

Beware of requests for unnecessary information in job application forms

Requirement to supply date of birth, gender and evidence of right to work in Australia held to be discriminatory

The Queensland Civil and Administrative Tribunal (QCAT) has found that Woolworths Ltd’s online job application form was discriminatory and ordered Woolworths to pay compensation of $5,000 to a potential job applicant in respect of his embarrassment, humiliation and loss of a chance.

Background

In December 2013, Woolworths advertised a position for a console operator at a petrol outlet in Beerwah.

The applicant, Steven Willmott, was a resident of Beerwah and considered he had good prospects of being selected for the position.

Mr Willmott commenced work on submitting an online job application form but ultimately did not complete or submit the application form because he was ‘sickened beyond belief1 at several questions within the application form.

The offending questions were mandatory fields requiring applicants to:

    • Supply their date of birth;
    • Select one of the following options regarding gender: No Selection, Female or Male; and
  • Upload evidence of their right to work in Australia (for example a copy of an Australian birth certificate, passport or work visa).

Anti-Discrimination Act

The Anti-Discrimination Act 1991 (Qld) (ADA) prohibits discrimination on the grounds of certain attributes, including sex,2 age,3 race,4 and gender identity.5

In addition, s 124 of the ADA provides that ‘a person must not ask another person, either orally or in writing to supply information on which unlawful discrimination might be based’.6 Defences are available if the information requested is ‘necessary to comply with, or is specifically authorised by…an existing provision of another Act’,7 or if ‘the information was reasonably required for a purpose that did not involve discrimination’.8

Woolworths’ case

In relation to the requirement that job applicants supply their date of birth, Woolworths argued that this information was reasonably required for purposes that did not involve discrimination including:

    • Determining employee entitlements, noting that wage rates differ for employees under the age of 21;
    • Differentiating between employees with the same name, noting that Woolworths employs approximately 190,000 employees; and
  • As a means of ensuring that employees were over the age of 18 for certain positions including at BWS liquor outlets.

In relation to the requirement that job applicants nominate a gender, Woolworths argued that this information was necessary to comply with Woolworths’ obligations under the Commonwealth’s gender equality reporting framework.

As for the requirement that applicants upload evidence regarding their entitlement to work in Australia, Woolworths argued that this information was necessary to ensure compliance with the requirements of the Migration Act 1958 (Cth) (Migration Act).

The Tribunal’s findings

QCAT acknowledged that, in circumstances where Woolworths received applications from approximately 670,000 applicants every year, the questions would serve as a useful screening tool prior to the interview stage.

The Tribunal further acknowledged that the information requested by Woolworths was required for those people whose job applications were ultimately successful.

However, QCAT held that:

    1. To the extent that Woolworths required employees to be over 18 for certain positions, Woolworths ought to have simply required applicants to tick a box confirming they are over 18 and provided an explanation on the job application form as to why the information was required. In terms of determining employee entitlements and differentiating between employees with the same name, Woolworths could not reasonably require the date of birth until an applicant has been offered a position;
    1. The Commonwealth’s gender equality reporting framework did not impose a positive obligation on Woolworths to gather information regarding gender. Rather, it imposed an obligation on Woolworths to report such information it had gathered regarding gender. Accordingly, to the extent that an application form disclosed information regarding gender (for example, because an applicant’s name was clearly female or male), Woolworths would be required to report such information. However, the gender equality reporting framework did not provide a basis for Woolworths to make gender a mandatory field in job application forms;
  1. The Migration Act renders it an offence for an employer to allow or continue to allow an unlawful non-citizen to work. It is not an offence for an employer to accept a job application from, or interview, an unlawful non-citizen. Accordingly, while it would be appropriate for Woolworths to require evidence of a person’s entitlement to work in Australia prior to offering a position, the Migration Act did not provide a basis for Woolworths to require such evidence at the job application stage.

In circumstances where Woolworths had been unable to make out any of the defences available under s 124 of the ADA, QCAT held that Woolworths had unlawfully required job applicants to supply information on which unlawful discrimination might be based.

By the time the matter came before QCAT, Woolworths had already changed its online application form such that there was no ongoing breach of the ADA.

The Tribunal was satisfied that Mr Willmott had been embarrassed and humiliated by the discriminatory questions, and as a result he had lost the chance to apply for employment with Woolworths. Woolworths was ordered to pay compensation of $5,000.

Lessons for employers

While the case was decided based on Queensland’s anti-discrimination legislation, the principles apply equally to the anti-discrimination legislation in force throughout Australia.

Accordingly it is important for all recruiting employers to carefully review recruiting material when released to the public (in whatever format) for compliance with the variety of overlapping and regularly changing requirements of state and commonwealth anti-discrimination and privacy legislation.

In particular, employers must carefully review expressions of interest / initial job application forms in order to ensure that any information which could be used for discriminatory purposes (including but not limited to gender, parental status, age, race, impairment, religious beliefs, gender identity, family responsibilities) is required at that stage of the process. In most circumstances, it will be difficult to establish that anything other than a person’s name, contact details and relevant qualifications and experience are required at the initial job application stage.

Once a person is being considered for a position, it is appropriate to ask for further information so long as the information is genuinely required for one or more of the businesses functions or activities. To the extent that a business requires potential employees to provide information which is not genuinely required, the business also risks breaching the Privacy Act 1988 (Cth).

This is to be contrasted with an employer request for an applicant to submit a resume, as the volunteering of certain information involves different considerations and will not be discriminatory per se.

1 Per Senior Member Oliver in Willmott v Woolworths Ltd [2014] QCAT 601 [66].
2Anti-Discrimination Act 1991 (Qld) s 7(a).
3 Ibid s 7(f).
4 Ibid s 7(g).
5 Ibid s 7(m).
6 Ibid s 124(1).
7 Ibid s 124(2)(a).
8 Ibid s 124(3).

Source www.carternewell.com.au May 2015