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.


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

Office of Fair Trading submission regarding Property Occupation Forms

Emailed to the Department 20th March 2015

Real Estate Excellence welcomes the Office of Fair Trading invitation to provide feedback on the Property Occupation Act approved forms.

Real Estate Excellence represents an industry membership of over 200 member offices in Queensland. Some of the following feedback has been received from members of Real Estate Excellence after their feedback was sought as part of the following submission. The focus of Real Estate Excellence membership is on compliance, risk management and best practice for the industry.

Since the introduction of the new forms in December 1 2014, the following concerns and feedback are mainly related to the PO Form 6;

  • The form should be separated for property management and sales. This feedback is by far the most consistent Real Estate Excellence has received from the industry and members.

  • There are a growing number of landlords who are anxiously questioning property managers upon signing up for the rental property to be managed asking if they are ‘selling the property’. The way the form is shared with residential sales is causing confusion and concern for some consumers. A recommendation is that a PO Form 6 is created for property management and one for residential sales.

  • Part 7 of the Form appears to be a complete waste of space and is causing confusion in the industry. With deregulation now in place, it is unfortunate that the word commission continues to be used in the legislation and in the approved forms given that the industry is now fee for services provided and as agreed fees in writing with the client. Part 7 is particularly confusing for property managers as there are now the let fee, management fee (which now includes the rent collection commission which technically no longer exists) and other fees as charged and agreed to between the agency and the lessor client.

    Following is an article I produced for my clients to assist with the industry confusion on this matter given deregulation.

“It is with much regret that the Government in the legislation, the PO Form 6 and the form providers who provide the appointment best practice schedule and terms to the appointment have still used the words ‘commission’ in relation to agency fees for sales and property management post December 1 2014.

The Property Occupations Act 2014 which commenced 1 December 2014 deregulated commission meaning technically there is no longer commission as the industry knew it prior to December 1. The previous laws stipulated maximum commission chargeable for the sale of residential property and for the letting and rent collection of residential rental property. Management fees were always deregulated.

The Government approved PO Form 6 (4 ) pages may not be helpful in Part 7 by continuing the use the words  commission on the form (which mirrors legislative use of the word ‘commission’).

In an ideal world moving forward Part 7 should have been removed and not put into the form and fees, charges and expenses only to remain in Part 8.

The industry now has de regulation of commission/fees for sales and property management meaning the fee ‘for service’ of selling and or managing your rental property is whatever is agreed in writing with the client.

The ‘fee’ could be a % or an agreed $ amount.  Real Estate Excellence urges members and the industry to consider % in property management as opposed to agreed $ amounts in writing.

For example the ‘letting commission’ which is really a let fee today could be 210% of the first weeks rent.  If you put the $ amount of current rent (such as $475) you may be only able to charge that for the remainder of the agreement which is ongoing and continuing unless the client agrees in writing to a different and or increased fee in the future. Note that all fees and commissions are GST inclusive hence the example reference above of 210% of first weeks rent which is 2 weeks rent plus GST 10%.

This is also for management fees.  No longer does the industry have to display rent collection and management fee separately.  It is now one total fee such as 8.8% plus any other fee for service your agency may charge as agreed in writing for the client.

Best practice advice;

Write your commissions (which are agreed fees in % or $ amount more so as stated above) in Part 7 of the approved form (page 3) or simply refer the client to the schedule provided to your agency by your form provider such as ADL or Realworks. The schedule and terms are best practice and great plus necessary for agency risk management but are not the approved form.

As stated on page 4 of the approved form PO 6 from the Government,

“This is the end of the approved form. Please note any annexures/schedules for part of the appointment contract”.

If your agency is not satisfied with the form provider schedule in relation to the fees/commission disclosure issue created your own template as an annexure setting as agreed fees for the services you are providing noting it has to be GST inclusive and or provide feedback to your form provider to seek change. Refer to your own created best practice form in the relevant Part 7 and Part 8 of the approved form (pages 3 and 4) and the schedule as required.

  • By far most agencies are referring to the private form company provider schedule fees section in Part 7 and are not completing. It would be ideal to have Part 7 either removed or decreased in size with more emphasis on the fees and charges.

  • Part 8 fees and charges section 3 has limited space for use in reality; the fields are recommended to be increased to allow for practical use.

  • A suggestion from a practitioner in the industry for both commercial and residential property is to include provision for insertion of an ABN for both the client and the agency on the approved form part 1 and part 2

  • A suggestion from a practitioner is the removal of the box fields for dates and to simply allow for the date to be typed in

  • A further suggestion from a practitioner is the removal of the provision when an Auction is being entered into with providing a price range to an electronic listing provider Part 4 – section 3.  This information could be in a separate advice from the Seller.

  • Part 5 – box 2 – the use of non-sales is not clear and could be clearer. A suggestion is to simply add the word property management.

  • Should the form not be separated for sales and property management, Part 6 is recommended to have a clear statement that this part only applies if the property is being sold and does not apply to property management.

  • Part 10 – reappointment – whilst the vision of the previous Government to remove the amount of approved forms was welcomed, the reappointment form is recommended to be reinstated (previously Form 23 PAMD Act). The reappointment form currently raises concerns about the document leaving the office to be signed but this can be practically dealt with by the industry. It is believed that it would be much more transparent to have a separate form for the reappointment process and recommended that the previous reappointment form be reinstated.

  • A licensee has provided feedback in relation to section 2 (Part 4) and Part 5 in relation to the suggestion that the dates of appointment and reference to what type of appointment should be shown in the same provision. This will provide much more transparency and certainty for consumers.

Thank you for the opportunity to provide this submission.

Issuing and Giving Notice to tenants via post

 

The following case is of great concern to the industry. Urgent change is needed in relation to calculation of postage when issuing notices to tenants. Paragraph 5 of the case below states that the tenant was not given the correct notice period of 7 days for a notice to remedy breach.

Given the case is an appeal and now a precedent, industry is advised to immediately change their practices when issuing notices with prescribed notice periods such as 7 days to ensure that the 7 day notice is applied. This means when posting on a Friday, add three days for postage to allow for the notice to ‘begin’ and be ‘given’ on the Tuesday to allow for 7 clear days’ notice.

If you are a member of Real Estate Excellence and require more assistance on this matter (or any other matter) please email Stacey Holt.  The Property Management Excellence (PME) manual has had an immediate and extensive update and a new version 1.7.2 is now online for members. Further information and a fact sheet has been emailed to members (10th December 2014).

Marsellos Pike Real Estate v Bate [2014] QCATA 316 (18 November 2014)

CITATION:

Marsellos Pike Real Estate v Bate [2014] QCATA 316

PARTIES:

Marsellos Pike Real Estate
(Applicant)

 

v

 

Rebecca Bate
(Respondent)

APPLICATION NUMBER:

APL401 -14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

18 November 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where notice to remedy breach – where insufficient notice provided – where application to terminate tenancy refused – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28.
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 328, 349

Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Chambers v Jobling (1986) 7 NSWLR 1
QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41
Cachia v Grech [2009] NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd[1989] 2 Qd R 577

APPEARANCES and REPRESENTATION (if any):

The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

[1] Ms Bate was 49 days in arrears of rent. Marsellos Pike Real Estate, acting as agent for the lessor, issued a notice to remedy breach. Ms Bate did not pay. Marsellos Pike issued a notice to leave. Ms Bate did not leave. Marsellos Pike filed an application to terminate Ms Bate’s tenancy. The tribunal dismissed the application.
[2] Marsellos Pike wants to appeal that decision. It says the learned Adjudicator failed to act fairly, failed to consider all evidence before him and failed to make a decision based on all the merits of the case. It says that the learned Adjudicator made his decision on a technicality, without considering the merits of the case in circumstances where he had discretion to waive non-compliance.
[3] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[4] The learned Adjudicator dismissed Marsellos Pike’s application because it did not give the required period of notice in its notice to remedy breach.
[5] Section 328 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) states that the period for remedying a breach of tenancy must not end earlier than seven days after it is given. Marsellos Pike issued the notice on 1 August 2014. As the learned Adjudicator observed[5] ‘issued’ is not the same as ‘given’. Marsellos Pike gave the notice to Ms Bate by positing it on Friday 1 August 2014. The earliest date she could have received it was 4 August 2014. The notice called for the breach to be remedied by 10 August 2014. The learned Adjudicator was correct in finding that Marsellos Pike did not give the necessary seven days’ notice.
[6] The learned Adjudicator was also correct in finding that he had no discretion to waive the requirement of seven days’ notice. The learned Adjudicator pointed out that notice period in s 328(1) of the RTRA Act is mandatory. Section 349 does not allow the tribunal to cure defects in a notice to remedy breach, only a notice to leave. This tribunal has published many decisions confirming that the RTRA Act is proscriptive[6] and the tribunal has no power to waive compliance with its mandatory provisions.
[7] Marsellos Pike misunderstands the effect of s 28 of the QCAT Act. While the tribunal must act fairly and according to the substantial merits of a case, it must also apply the law. Section 28 cannot overcome the proscriptive nature of the RTRA Act.
[8] The tribunal may admit evidence despite non-compliance with any time limit. That is a procedural power. It allows the tribunal to receive evidence, not to cure a defect in the evidence. The learned Adjudicator did admit evidence of the notice to remedy breach but, because of s 328 of the RTRA Act, he could not give it effect.

[9] There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused.


[1]QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41.
[2]Cachia v Grech [2009] NSWCA 232 at 2.
[3]QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41.

[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
[5] Transcript page 1-9, lines 1 – 9.
[6]Lowe v Aspley[2010] QCATA 59 at [10].

Source www.austlii.edu.au November 10th 2014

 

ATO Covid 19 and rental property information

Sourced from www.ato.gov.au 25th June 2020

  • Many residential rental property owners have had their rental income affected by COVID-19. As a result, your clients may ask you about what they can claim this tax time.

    Our website provides some frequently asked questions (FAQs) and other information to help you and your clients understand their rental property obligations and what information your clients need to give you in order to lodge correctly.

    You and your rental property owner clients can check our FAQs to find out:

    • What expenses are claimable if tenants are not paying their rent under the lease agreement due to COVID-19?
    • Will deductions for rental property expenses stay the same if the property owner reduces the rent charged?
    • Must a back payment of rent or an amount of insurance received for lost rent be included as income?
    • Is a deduction on the interest charged on a rental property loan allowed if the bank defers repayments due to the COVID-19 outbreak?
    • Is the new instant asset write-off deduction available for residential rental property assets?
    • Impacts on short term rental properties.

    See also:

Buyer loses claim against real estate agent over alleged misrepresentation

QCAT (QLD)

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – agents – representation – where a real estate agent made a representation that transfer duty was not payable by the buyers – where it is alleged the agent made a representation to the buyers that they would forfeit the deposit if they terminated the contract – where the buyers had opportunities to avoid or mitigate financial loss – where the buyers proceeded with the contract – whether any financial loss suffered as a result of the representations – where it was held that the buyers have not established that they have suffered loss as a result of the representations of the agent

Review the QCAT case here