Articles in Category: Member Update

Contents of Real Estate Excellence Member update - emailed to members the first week of each month plus loaded online in the Member updates folder.


Real Estate Award flexibility during coronavirus

Email received from Fair Work 6th August 2020 www.fairwork.gov.au

‘6-month lifeline’ to commission-only agents - read article here.

Real Estate Award flexibility during coronavirus

On 5 August 2020, the Fair Work Commission varied the Real Estate Award by adding a new Schedule I. It applies from an employee’s first full pay period on or after 6 August 2020.

Schedule I temporarily changes the rules for commission-only arrangements and the calculation of an employee’s Minimum Income Threshold Amount.

For more information, see Real Estate Award flexibility during coronavirus.

Coronavirus and Australian workplace laws

If your workplace has been impacted by coronavirus, we have information about your workplace rights and obligations. This includes:

  • the JobKeeper wage subsidy scheme
  • stand downs from work
  • flexible work arrangements
  • workplace health and safety
  • pay and leave entitlements.

For more information, go to Coronavirus and Australian workplace laws.

Kind regards,

Fair Work Ombudsman

COVID19 open homes and auctions stage 3 from noon July 3rd 2020

Sourced from covid19.qld.gov.au July 1 2020 QUEENSLAND

Questions about real estate

I work in the real estate industry; can I conduct an open house inspection on a property?

Yes, open house inspections are permitted. The agent must ensure that they limit the number of attendees to no more than one person per 4 square metres at a time. If the home is less than 200 square metres in size, then the one person per 2 square metre rule will apply, up to 50 people.

The agent should ensure good hand hygiene and frequent environmental cleaning and disinfection is maintained during an open house inspection.

Given the close interaction involved, agents are required to keep a record of all guests’ contact information, including name, phone number, email address and the date and time period of patronage for 56 days (8 weeks) to assist with contact tracing if required.

The agent should ensure that physical distancing including four or two square metres per person, hand hygiene and frequent environmental cleaning and disinfection is maintained during an open house inspection.

Can I go to an auction?

Yes, auctions are permitted but the auctioneer and agents must ensure that they limit the number of attendees to no more than one person per 4 square metres of space available for staging the auction or one person per two square metres if the space is less than 200 square metres.

The event should be staged in such a way that physical distancing is observed and all participants can stay at least 1.5 metres apart if possible.

Given the close interaction involved, agents are required to keep a record of all guests’ contact information, including name, email address, phone number, and date and time of patronage, for 56 days (8 weeks) to assist with contact tracing if required. 

The following information is from the Federal Privacy Commissioner

COVID-19 resources

As COVID-19 restrictions ease, some states and territories are managing the ongoing risks of the virus by requiring businesses to collect personal information about customers and visitors to their premises.

Organisations should securely store this information once it’s collected: avoid recording personal details in a book, notepad or computer screen where others may see it, and limit access to the information to staff who need to see it. 

We have published guidance to assist businesses that are required to collect contact information by State and Territory Directions and Orders. We have also developed a range of COVID-19 advice on privacy and freedom of information for individuals, Australian Government agencies and organisations covered by the Privacy Act 1988.

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.

A landlord, a managing real estate agent, a delegable duty of care and a set of dodgy stairs

Sourced from www.lexology.com 25th February 2020

 

Who is liable for an injury to a tenant caused by the state of a property the subject of a residential lease? The landlord? The managing real estate agent? Both?

Yeung v Santosa Realty Co Pty Ltd [2020] VSCA 7 considers a landlord’s delegable duty of care to a tenant and issues pertaining to the apportionment of liability between the responsible parties.

In Issue

  • A landlord’s delegable duty of care to a tenant
  • Liability for injuries sustained by a tenant under a residential lease
  • An agent’s duty to inspect the property and notify landlord of obvious defects

The background

In early 2014, a residential tenant (Tenant) slipped at night on the back stairs of the property she was leasing, causing her to fracture her right ankle (Incident). Relevantly, the stairs had no handrail and were worn, slippery and unlit. The Incident was then reported to the managing real estate agent (Agent) who proceeded to arrange the required rectification works.

The Tenant brought proceedings for negligence in the County Court of Victoria against the owner of the premises (Landlord) and the Agent. It was held they had both breached their duty to the Tenant and were liable for damages - liability was apportioned two thirds to the Landlord and one third to the Agent. The Landlord appealed the decision.

The decision on appeal

The appeal was upheld with the Court of Appeal finding that the Landlord had delegated his duty of care to the Agent and as a result was entitled to a complete indemnification from the Agent.

A central consideration of the appeal was whether the application of the duty of a landlord to take reasonable care to avoid foreseeable risk of injury to tenants can be discharged by the exercise of reasonable skill and care in engaging a real estate agent to take steps to keep the property safe. It was held that such a duty can, in certain circumstances, be completely discharged and delegated to a managing real estate agent.

In coming to this decision, the Court of Appeal made the following critical findings:

  1. the Agent’s obligation to inspect and report included identifying and recording visible or obvious risks and reporting them to the Landlord;
  2. the Agent breached its duty of care to the Tenant when it failed to carry out an inspection of the stairs as it was bound to do – particularly in circumstances where the risk of slipping was foreseeable and not insignificant, and where there was a risk of a significant injury; and
  3. the defects were not latent, were obvious and detection required no specialist expertise. If the Agent had carried out the inspection, it would have identified the defects in the stairs and, upon notification to the Landlord, these defects would have been remedied and the fall would not have happened.

Implications for you

This decision confirms that a landlord’s duty to take reasonable care to avoid foreseeable risk of injury to tenants can, in certain circumstances, be completely discharged and delegated to a managing real estate agent.

For managing real estate agents, it is therefore crucial to understand and appreciate your obligations pursuant to your agreement with a landlord – especially those related to the scope of your property inspections, maintenance reports and required repairs. As this case shows, a failure to adequately perform such duties can attract severe consequences.

Yeung v Santosa Realty Co Pty Ltd (2020) VSCA 7 

Barry.Nilsson. Lawyers - Lachlan Doran 

Why your agency should be a member of Real Estate Excellence

Real Estate Excellence commenced January 4, 2010.

Below are the top ten reasons your agency should be a member of Real Estate Excellence. For more information about membership, and the many benefits to your agency, please click here. 

Our membership agreements are 'periodic' with no lock in contracts. Click here for audio as to why your agency should be a member office of Real Estate Excellence.

Real Estate membership support service are only available for Queensland. Private training and consultancy services are available for Queensland, and areas outside of Queensland, click here for more information.  If you would like more information about our membership services and the many affordable options for your agency, please contact us.

  1. When there are legislative changes, significant QCAT cases published or changes to RTA or OFT forms, members are advised promptly. Members are advised via email to the email addresses as part of membership services on the same day, or the next day including weekends if needed (ready for Monday). 
  2. Best practice support services are only provided by Stacey Holt or Melissa Goody. We share the same email and phone number. Prompt almost immediate replies to email support.
  3. Discounted education and training events held throughout Queensland at least three times a year in each region. Special events are at discounted rates for members. 
  4. Many best practice form/email templates. Best practice forms/email templates designed if able upon request.
  5. The Property Management Excellence (PME) system; 2000 plus pages, 39 chapters, which includes everything Queensland property management. Great for staff training, development, procedures and more.
  6. Monthly Member update (newsletter) including landlord newsletter template, QCAT ‘case of the month’, and education and advice for licensee, administration, sales and property management. I see this service as one of the most important services to member offices. There is always something to update your office on.
  7. The Sales Excellence manual (part of PME system); 400 pages, 16 chapters of everything Queensland residential sales.
  8. QCAT cases published relating to property management are uploaded to Member Online for members to review anytime for development, interest and training.
  9. 24/7 online access to Member Online. Access for best practice forms, procedures, member updates and more. Anytime, anywhere. Access what you need, when you need it. 
  10. Our business focus and passion are on risk management, best practice and compliance. Our job is to make your job easier where we can. Our job is to assist your business in continuing to be successful. 

Industry advocacy to Government is also part of the role of Real Estate Excellence. 

When I began Real Estate Excellence Academy January 4, 2010, my focus was on providing personal and professional support services. I have never lost that focus and my why. Stacey Holt, Company Director.