You might wonder why the question of who is a visitor, matters and if you do, you are in the strata minority.  The ostensible abuse of visitor car parking privileges is the trigger for an enormous amount of body corporate angst.
Interestingly enough, the Body Corporate and Community. Management Act 1997 (BCCM Act) does not define who a visitor is, so we are left with dictionary definitions and adjudications (and perhaps even a dose of common sense, as scary as that may seem to be).
Let’s start with the basics.
The by-laws
You need to have a lawful visitor parking by-law.  A simple example is set out in Schedule 4 of the BCCM Act.  If you don’t have that, you have nowhere to go, and that means you should send us your CMS for a free by-law review proposal, where we will tell you some of the other by-laws you are missing too.
Dictionary definition
A visitor is someone who (obviously enough) visits which includes:

to pay a call on as an act of friendship or courtesy;
to reside with temporarily as a guest;
to go to see or stay at a place for a particular purpose;
to go or come officially to inspect or oversee.

Adjudications
As you would expect, there have been quite a few adjudications over the years.  Some of the passages we have found illuminating (and our takeaway from each) include:
Picture Point [2004] QBCCMCmr 384
This was a dispute about short and long-stay occupants using the visitor car parks.
‘There does seem to be some uncertainty about who constitutes a genuine visitor to the scheme and will be entitled to use the visitor car parks.
There seems to be a general understanding that occupiers of the scheme are not entitled to use the visitor car parks.
However, the distinction between an occupier and a visitor may not always be completely clear. As a general rule:-

persons letting a unit for a week (including family or friends accompanying those persons for the majority of the period let) would be classed as occupiers.
persons just visiting for one or two nights of that period would normally be classed as visitors.
similarly, if the relative of an owner/occupier regularly visits for one or two nights every month then that relative would normally be classed as a visitor.

The more difficult questions arise when a person stays with someone for a number of nights or on a very regular basis. In those cases, it will be necessary to look at all the circumstances to determine if they are an occupier or a visitor.’
Our takeaway: This was an early decision indicating the difficulties in actually deciding who a visitor was and confirmed that it was not as simple as whose name is on the lease.
Summer Waters [2004] QBCCMCmr 244
This was one where an occupier’s son stayed overnight at his parent’s unit for seven nights over a 26-day period.
‘It is not disputed that the … son periodically visits the scheme land, and on occasion, stays overnight. It is also not disputed that during these periods, the …  son parks his vehicle in an area of common property allocated for visitor car parking. 
While it is arguable that this shows that the … son is a regular visitor to the scheme, in my view, regularly visiting the scheme does not make a person an ‘occupier’ of a lot in the scheme, even if on occasion those visits are on an overnight basis. As a result, I am not satisfied that the Respondent’s son is an ‘occupier’ for the purposes of the parking by-law.’
Our takeaway: Regular visitors who occasionally stay overnight are just that – visitors not occupiers.
Gresham Gardens [2006] QBCCMCmr 355
This was one where an occupier’s son stayed overnight in his parent’s unit two to three nights a week, every week.
‘The question is whether [the son] falls within the category of “someone else who lives on the lot" or is in the nature of a visitor or invitee.
Terms such as ‘visitor’ or ‘invitee’ are not defined in the body corporate legislation or the by-laws. However, it seems to me that a visitor or invitee in this context refers to a person associated with an owner or occupier who is temporarily present on a lot or common property, with or without invitation…
I am of the view that the factors to be considered in this issue are:-

how long the person in question is present at the scheme;
how regularly; and
for what purpose.

I do not consider it is necessary that a person stay overnight every night of the week to be an occupant.
A person who stays overnight in a residential lot 2 or 3 nights on a regular basis could still be considered an occupier. 
I do not consider that the lot must be the person’s principal place of residence for them to be an occupier of the lot. It is conceivable that a person may occupy more than one residential abode. 
If someone were to visit regularly but not usually stay overnight, or were to stay overnight for a few nights occasionally, I would not normally consider they were occupying the lot. The key here, I believe, is the combination of two factors. Firstly, the respondent stays overnight for 2 or 3 nights (rather than just visiting during the day or evening) and in addition, the respondent is present on a very regular basis (every week, or at least most weeks). Moreover, with the respondent’s place of work is nearby, it does not appear to be a temporary arrangement.”
Our takeaway: If the person’s presence is not temporary or occasional in nature, they may well be an occupier (even when their principal place of residence is elsewhere).
127 Charlotte Street [2015] QBCCMCmr 19
This was one where employees of the resident manager were using the visitor car parks.
“I consider a ‘visitor’ would include anyone who is not an occupier of a lot, but who is genuinely visiting a lot or the scheme. I do not consider this is limited to residential or non-commercial visits. While a visitor may be a friend or family member visiting a tenant, they may also be a contractor such as an electrician visiting the scheme to do work.
I would consider the employees of the resident manager to be occupiers to the extent that they predominantly or regularly work at the building (as distinct from, for example, an employee who is based elsewhere but visits for an ad hoc meeting). However, a cleaning contractor attending to clean one or more lots would arguably fall within the designation of a visitor.”
Our takeaway: a visitor could be a family member, friend or the electrician appearing as a one-off, but permanent or regular attendees may well not be visitors.
What does all this mean?
It depends on the circumstances.
Occupiers are definitely not visitors.  We think a person is an occupier if they have a right to use a lot exclusively.  In a permanent letting sense, this would come from the lease, and in a short-term letting sense, this would come from the licence they have to use the lot from the owner.
And before anyone asks, we don’t think that an occupier needs to be named on the lease or licence to be that.  It is a matter of fact.
Regular attendees to the scheme who use the visitor car parks:

who definitely reside and work elsewhere are probably still visitors;
who visit so regularly that they ought to be considered an occupier would not be visitors;
who have a link with the scheme through work (as employees of someone on site or even locally to the scheme) and may not be visitors.

Other articles you may be interested in
Can a body corporate tow a car?
The BCCM review paper on towing
QUT’s recommendations on towing
By-law enforcement process as published by the Commissioner’s Office
 

http://hyneslegal.com.au/news//rights-of-access-to-lots-nar-537

http://hyneslegal.com.au/news//short-term-letting-nar-535

http://hyneslegal.com.au/news//is-it-defamatory-to-call-someone-unfinancial-nar-536

Hynes Legal is pleased to announce the appointment of two new partners; Amy O’Donnell and Todd Garsden, effective 1 January 2019.
Amy O’Donnell and Todd Garsden have both been promoted to partner in the body corporate and management rights team. Todd and Amy will continue to work closely with Frank Higginson, partner and leading body corporate and management rights specialist.
Hynes Legal is one of Australia’s leading firms in community living encompassing body corporate, strata, management rights, aged care and retirement living and these appointments further strengthen the firm’s position.
“We are excited for Amy and Todd to be part of our future growth and success,” said Hynes Legal CEO, Ben Deverson. “We are proud that these promotions have come from within the firm. Having joined Hynes Legal early in their careers, they have all made a significant contribution to the firm’s success over the years” he added.
 

We are pleased to announce the inclusion of three of our lawyers in the 2020 Edition of the Best Lawyers in Australia list.
Best Lawyers has published their list for over three decades, with entry into the list based upon peer reviews and specialised industry expertise.
Julie McStay makes her eighth consecutive appearance for health and aged care law and retirement and senior living law.
Kristin Ramsey makes her fifth consecutive appearance for labour and employment law.
Frank Higginson features for the second time as a leading lawyer in real property law.

Julie, one of Australia’s leading legal practitioners in the aged care and retirement living sector, will appear at the Health Metrics World Conference, being hosted on September 21-22 at Melbourne’s Crown Conference Centre.

She will speak in a thought leadership session about legislative changes facing the aged care and retirement living sector. Julie is a strong advocate for a ‘government-light’ approach to legislation in an industry where suppliers and consumers necessarily want close and responsive relations free of restrictive ‘one size fits all’ approaches to regulation.

In a rapidly growing industry such as aged care, governments need to tread carefully with regulation or risk falling foul of the law of unintended consequences and causing unnecessary disruption.

For more information about the conference and the topics to be discussed or to register, click here.

If you are interested in attending, please let us know via return email as we have special Hynes Legal subscriber deals available.

Click here to access a PDF version.

---

Bush lawyers abound out there in strataland. 

Someone heard from someone else that someone did something or got something and then that becomes the rumour that bounces around endlessly becoming the little spot fire that we then need to put out individually with clients when they ring to ask us:

‘I got told THIS — can we do that too?’

Valuers have it worse though. 

‘So and so down the road got 5.6 times for their business so that means mine is worth 5.8 times.’

Leaving aside it was never contracted at 5.6 times in the first place, usually what has happened is the accountant tore it to pieces during the verification. They started by removing the GST the seller had included as revenue and then added back all the wages that the seller had taken out because they could work 120 hours a week on their own, as anything else was a ‘lifestyle’ choice.  5.8 times quickly turns into something more realistic.

Anyway, our furphies aren’t as exciting as that, but here is our equivalent of a helicopter bucket to clear up our most common legal spot fires/misconceptions.

The term of a management rights agreement can be longer than the term for which it was originally granted

We all know management rights agreements have limitations on term. Those are 25 years under the Accommodation Module and 10 years under the Standard Module.

One of the misconceptions out there in strataland is that if the original agreement was granted for 20 years (instead of the maximum term of 25 years) that it cannot be varied to be for a term of more than 20 years.

It can. An agreement is not limited to the maximum term of what it once was. It is limited only by the Module by which it was regulated at the time it was entered into. 

Changing Modules does not mean that the term of the management rights agreements changes

Following on from the above, a management rights agreement remains governed by the Module under which it was entered into. Changing from Accommodation Module to Standard Module does not reduce the term of a management rights agreement to 10 years, and changing from Standard Module to Accommodation Module does not then increase the term of a management rights agreement to 25 years.

If you are interested in the differences between all of the Modules you can read this.

It is the committee alone who can enforce by-laws

We wrote about this more than five years ago here and it still regularly comes up. Our strata practice is fairly non-discriminatory. We will basically act for anyone – be they resident manager, lot owner, committee or body corporate, provided we agree on the commercial terms. 

That gives us the ability to be completely across the spectrum of issues that happen in strata and see them from every side. This really does assist us to resolve issues as we usually know where the other side is coming from. 

But back to by-law enforcement. The whinges are multiple and consistent.  We get complaints from this complete matrix. Take yourself back to grade two and follow whatever line you want. We get them.

The committee is the only entity who can enforce by-laws. A resident manager’s role is to report breaches of by-laws to the committee and perhaps (if they have the skill set and desire) to gently nudge people in the right direction if they stray. Body corporate managers should document reported breaches and advise committees they have a statutory obligation to enforce by-laws.          

Yes, a resident manager might be able to take action against a tenant for a property they manage with respect to breaches of by-laws under the terms of the tenancy agreement.  But that action (if any) only relates to the resident manager’s role as letting agent for the owner of the lot and based on the owner’s instructions.  Those instructions are completely independent of what the body corporate may want.  This can leave resident managers in an invidious position where they have to report to the committee a breach of the by-laws by a tenant of theirs but then can do nothing about it because the owner does not want to upset the tenant.  We then come back to the committee being the only entity that can do anything about that breach.

We (sort of) covered the many hats a resident manager can wear, here. 

That is where it sits. No exceptions.

The by-laws are not valid just because they are registered  

Registration of a CMS means that the seal was properly affixed, the right fees paid and the exclusive use plans are in order. It does not mean the by-laws have been proofed for validity by the Titles Office. 

If you want to, you can upload your CMS here to give us the opportunity to point out some of your unlawful by-laws (yes, you will have some) and offer a fixed fee proposal to review them to make sure they are right. 

There is nothing worse than asking people to comply with by-laws that are not valid. In this day and age, google will reveal mistruths very quickly. 

Exclusivity of letting on relates to an onsite presence only

If the management rights agreements and by-laws are structured the right way, the resident manager will usually have the exclusive right to operate a letting business from the scheme land. That does not mean it is only the resident manager who can let lots. Owners can in their own right or through services like Airbnb. Owners can also engage agents outside the scheme to provide letting services. It would be lovely not to have competition but it abounds.

A resident manager does not report to owners

A resident manager’s role is usually acting as two things:

1. caretaker of the common property;
2. letting agent for owners who choose to engage them

A resident manager has no direct relationship with unit owners other than if they are acting for them as letting agent. In that sense, they report to owners about their rental returns, property management etc. In the caretaking side of things, a resident manager will usually be obliged to report to a liaison person on the committee about all caretaking issues.

A resident manager has no direct relationship with any owner (as an owner) on caretaking issues. 

In that sense, a manager is no different to what we are as lawyers when acting for a body corporate. Occasionally we have owners email us about something we are doing for a body corporate. We simply acknowledge that correspondence and forward it to the committee as that is where our instructions come from. 

Handling that delicately is the art.

We are happy to field questions in the comments section below about anything you are not sure of that we may not have included in this article.

On 25 October 2017, the Housing Legislation (Building Better Futures) Amendment Bill 2017 was passed in the Queensland Parliament.

The new legislation significantly amends the Retirement Villages Act 1999 (RV Act) with major changes affecting the Retirement Village Industry and operators. We will notify you of the date of commencement of the Amended Act (Commencement) as soon as it is announced.

This is a brief summary of those changes.

1. Village Comparison Document (VCD) – replaces the Public  Information Document (PID)

• All operators of registered villages prior to the Commencement must prepare a VCD
• The VCD is to be published on the Scheme’s website (every operator must maintain a website) and be included in any promotional material

The VCD provides information about the Scheme to potential residents including:

• types of accommodation, facilities and services; and
• amounts payable by or to residents or the operator.

PIDs in effect before the Commencement will continue in effect for residence contracts in force before the Commencement.

2. New Prospective Costs Document for the Residence Contract – provides a summary to prospective residents of the estimated costs of moving in, living in and leaving the Village.

3. New Unit Condition Reports: Start of Residency/End of Residency – a new process for operators and residents to complete condition reports on units at both commencement and termination of residence contracts. 

4. Residence Contract – operators must not enter into a residence contract until 21 days after the operator has given the prospective resident the residence contract, VCD and Prospective Costs Document.

However, there is an exception. A prospective resident may sign a residence contract less than 21 days after receiving the documents if they have signed a waiver stating they have received legal advice from a lawyer about entering into the contract.

It is imperative that operators comply with this 21 day waiting period rule, otherwise a resident may apply for a QCAT order to set aside their residence contract. The resident has to show they have been materially prejudiced.

Despite the above amendments, the cooling-off provisions in their current form remain available to residents to rescind residence contracts.

5. Exit Entitlement – operators are required to pay residents their exit entitlement 18 months after the residence contract is terminated, unless to do so would cause the operator undue hardship. This change will apply to new and existing residence contracts ie where a resident has already left the village the 18 month period for payment of the exit entitlement will start from the date of commencement of the Amended Act. 

An operator must pay the exit entitlement at the end of the 18 month period and if the parties do not agree on the resale value, the operator must obtain a valuation not more than 14 days before the payment date.

An operator may obtain an order fixing a later date to pay the exit entitlement (or to pay by instalments), if QCAT is satisfied:

• operator is unlikely to sell the unit prior to the end of the 18 month period;
• operator is likely to suffer financial hardship; and
• order would not be unfair to the former resident (QCAT may have regard to submissions from the former resident)

6. New unit reinstatement and unit renovation processes

If the resident does not leave the unit in the same condition (except for fair wear and tear and agreed renovations) as when they entered the unit, the operator may carry out reinstatement work and claim the cost from the resident. A new definition of “reinstatement work” in the amended Act establishes the “same condition” test.

There appears to be no restriction on the operator and resident agreeing on entry that any reinstatement costs will be deducted from the exit entitlement.

The operator and former resident must agree on the date when renovation work to the unit will be completed. The cost of the work is paid by the parties in the same proportion they share in any capital gain on the sale of the unit. The definition of “renovation work” is replacement and repairs other than reinstatement work.

If the operator fails to complete the renovation work by the agreed date, the former resident may obtain a QCAT order that the operator pay the exit entitlement. The former resident has to show they were materially prejudiced by the failure.

These new processes do not apply for residence contracts in force before the Commencement.

7. New unit valuation requirements

The operator and resident can now make submissions (and respond to each other’s submissions) about the valuation of the resale value of the unit to the valuer. It also sets out other matters the valuer must have regard to in conducting the valuation and gives the valuer the power to request information from the operator about the Village, the unit or the residence contract.

8. Requirements on operators for redevelopment/closure of a Village

Before an operator commences the redevelopment or closure of a Village, the operator must obtain approval for their redevelopment/closure plan:

• by special resolution at a residents meeting (the meeting notice must contain certain disclosure requirements); or
• if approval is not obtained at the residents meeting, by application to the Department of Housing and Public Works (the Department).

The Department must give the residents notice of the application and have regard to any submissions from residents.

The Department may approve a plan only if it is satisfied the plan provides for a clear, orderly and fair process for redevelopment/closure. The Department must within 90 days of receipt of the application approve the plan or give the operator a direction to take action to revise the plan, but before doing so:

• the Department must give the operator the reasons for the proposed action to revise the plan; and
• the operator has an opportunity to make submissions about the Department’s proposed action.

After the plan is approved, the Department on application of the operator or its own initiative may give the operator a direction to take action to revise the approved plan, but once again before doing so must give the operator reasons to which the operator has an opportunity to respond.

The redevelopment requirements set out above do not apply if all residents were given notice of the proposal to redevelop before they became a resident.

9. Requirements on operators for transfer/sale of a Village

An operator must give the Department notice of a proposed transfer of control of a Village’s operation and obtain the approval of a transition plan.

The Department may approve a plan only if it is satisfied the plan provides for a clear, orderly and fair process for transitioning control of the Village’s operation. A similar process for a transfer/sale plan as the redevelopment/closure process set out below applies, ie:

• the Department must within 90 days of receipt approve the plan or direct the operator to revise the plan, but before doing so must give the operator reasons and the operator has a chance to respond.
• the Department can give a copy of the plan to a person whom it considers has an interest in the transfer/sale and consider submissions from that person.

As with redevelopment/closure, once the plan is approved, the Department may still direct the operator to revise the approved plan and this can be at the operator’s request or on the Department’s own initiative.

10. New behaviour standards for operators and residents  – the Amended Act contains a new Part which prescribes behaviour standards for residents and operators (and their staff), including:

• an operator must take reasonable steps to ensure a resident does not interfere with the reasonable privacy of another resident.
• an operator must give a written response within 21 days of receiving a written complaint, proposal or question from a resident or former resident (or their representative).

11. New Approved Forms – the Amended Act proposes that the Department will issue approved forms for use by operators for the following documents:

• Village Comparison Document
• Prospective Costs Document
• Unit Condition Reports
• Residence Contract
• Waiver – for the 21 day waiting period before entering the residence contract
• Residents Meeting Notices for redevelopment/closure of a Village
• Redevelopment Plan
• Proposed Village Closure Notice
• Closure Plan
• Proposed Transfer of Village’s Operation Notice
• Transition Plan – for transfer of village’s operation
• Notices of Discontinuation of Village Redevelopment/Closure/Transfer
• Maintenance Reserve Fund Budget
• Capital Replacement Fund Budget
• General Services Charges Budget
• Quarterly/Annual Financial Statements

If you have any queries related to the content of this article, please contact us.

This article is for information purposes only and should not be taken as legal advice.

 

In recent weeks Hynes Legal has maintained a close watch on the changes proposed in the Housing Legislation (Building Better Futures) Amendment Bill 2017 (the Bill). Overnight, the Bill was passed with bi-partisan support in Queensland State parliament. As we have previously mentioned, the Bill proposed significant amendments to the Retirement Villages Act 1999 (the RV Act) and will have a considerable impact on the retirement village industry.

The objective of the amendments aims to ensure fairness and consumer protections for residents living in or considering moving into, a retirement village. Furthermore, the amendments seek to increase transparency for operators across a broad spectrum of their operations, including the development and use of documents, communications with residents on any material changes to the scheme and fees.

As a summary, the changes to the RV Act will include:

• The requirement for operators to use new documents in approved forms, including the replacement of the Public Information Document (PID) with the Village Comparison Document
• The introduction of a 21 day waiting period for operators before residents can execute residence contracts, in addition to the current 14-day cooling period available to residents
• A new requirement for the exit entitlement to be paid to residents not later than 18 months after:
  • leaving the Village; or
  • the date of commencement of the new Act’s amendments for residents who have departed prior to this date
• A new reinstatement/renovation of unit process
• New transparency and communication requirements on operators regarding the sale/redevelopment/closure of a Village
• New behavioral standards for operators and residents

Despite the Bill having now passed the Queensland Parliament, it is unclear as to the timing of the commencement of the revised RV Act. We will maintain a close eye on the progress of the amendments and provide clarity on timing when it becomes clear.

Hynes Legal is now in the process of assessing all the changes to the RV Act and will prepare a more comprehensive review in the coming days.

If you have any queries related to the content of this article, please contact us.

This article is for information purposes only and should not be taken as legal advice 

The Government has recently released a data report detailing the operation of the new home care system and national prioritisation process. The data provides transparency regarding demand within the system and indicates the need for further investment for the delivery of these services.

Overall the data shows that home care packages under the new regime are falling short of the needs of older Australians and that there is a need for further reform in the area to provide a long-term solution.

Of most concern is the fact that around 89,000 people are currently waiting for a package, although this has steadily been improving since the transition. Specifically:

over 53,000 people have been assessed as needing care in their home but have not yet been assigned a package; and
over 35,000 consumers are on an interim lower level package while they wait in the queue for a higher level package to meet their assessed needs.

The level to which needs are not being met indicates that greater investment is required to ensure older Australians are receiving the level of care they require.

We will continue to monitor this issue and provide updates when we hear more. For more information please contact us here.

Senator Derryn Hinch introduced the Aged Care Amendment (Ratio of Skilled Staff to Care Recipients) Bill 2017 to the Senate this week.

The private member’s Bill seeks to introduce a mandated ratio of skilled staff to care recipients across all residential aged care facilities in Australia.

The Explanatory Memorandum to the Bill suggests that Department of Health, in consultation with the aged care sector, would determine a “safe and specific ratio” while providing for variables such as the number of care recipients, level and type of care provided, day and night shifts, and metropolitan, rural and regional areas.

This issue has been debated many times before and each time the Government has decided not to introduce a mandated staffing ratio in aged care. The recommendation to mandate minimum ratios of skilled staff to care recipients presents a potentially prescriptive and unreasonable blanket requirement for providers.

Aged care providers already have an obligation under the Quality of Care Principles to have appropriately skilled and qualified staff sufficient to ensure that services are delivered in accordance with the Accreditation Standards. This is necessarily flexible to take into account the different needs of residents and factors relating to the service, including its location.

The Bill does not contemplate the formula that would be used for the ratio and it is difficult to see how a ratio could be introduced that is truly flexible to different care needs and the resident mix in an aged care facility at any given time.

We echo the Productivity Commission’s statement in the 2011 Caring for Older Australians report:

“An across-the-board staffing ratio is a fairly ‘blunt’ instrument for ensuring quality care because of the heterogeneous and ever changing care needs of aged care recipients — in the Commission’s view, it is unlikely to be an efficient way to improve the quality of care.

Because the basis for deciding on staffing levels and skills mix should be the care needs of residents, it is important that these can be adjusted as the profile of care recipients changes (because of improvements/deteriorations in functionality and adverse events, etc).

Imposing mandated staffing ratios could also eliminate incentives for providers to invest in innovative models of care, or adopt new technologies that could assist care recipients.”

Senator Hinch has also failed to acknowledge that the sector would require additional funding and support from the Government in order to meet a mandated staffing ratio. As Senator Helen Polley commented in her Second Reading Speech, “You can't take $4 billion out of a sector and then expect the same type of care. It just cannot be delivered.”

We will continue to closely monitor the progress of this Bill. 

Click here for a PDF version of a newsletter.

---

New laws regarding using or providing labour hire services will shortly commence. These changes affect all aged care and community service providers. 

New Licensing Requirement

From 16 April 2018, all labour hire providers will need to hold a licence in order to lawfully operate.

Labour hire providers

A business is regarded as a “labour hire provider” if, in the course of carrying on a business, the provider suppliers, to another person, a worker to do work.

This definition is very broad and covers a number of different businesses in the aged and community care sector including traditional labour hire businesses (such as agencies supplying nursing staff) and potentially home care businesses or businesses that operate under brokerage arrangements.

The laws provide for some categories of businesses to be expressly excluded by way of regulation and there are proposals before the government for businesses that involve carrying out work in domestic settings (such as many home care businesses) to be specifically excluded from the licencing scheme.

The regulations are in the process of being drafted and as such, it is not yet entirely clear which businesses will need a licence and which will be exempt. We will update clients as soon as the regulations become available and this issue is clarified.

Licence requirements

Businesses that fall within the definition of a labour-hire provider, will have until 15 June 2018 to apply for a licence.

To be eligible for a licence, providers will need to:

• satisfy a fit and proper person test (which among other things, requires providing information regarding compliance with workplace, WHS and migration laws);
• provide evidence of financial viability; and
• pay the requisite fee.

Once a licence has been granted, providers will be subject to strict reporting requirements.

Failure to comply with obligations under the new laws (including by operating without a licence or not meeting reporting requirements) can result in substantial penalties being imposed.

We will update clients as soon as further information regarding the application process is available.

Users of labour hire services

From 16 April 2018, providers that use labour hire services (such as engaging nursing or admin staff through agencies) must ensure that the labour-hire provider holds the requisite licence.

Entering into an arrangement with an unlicensed labour hire provider is a breach of the new laws and can result in substantial penalties being imposed. 

Need some help?

These changes impact the entire industry, not just labour hire providers. We will provide further updates as more information becomes available.

Please contact Kristin Ramsey – Employment & Workplace Relations Practice Group leader for further information or if you require assistance in this area. 

Voluntary Assisted Dying Act comes into law

On 5 December 2017, the divisive Voluntary Assisted Dying Bill 2017, which gives eligible persons access to voluntary assisted dying in Victoria, received royal assent and came into law. This was after the Bill passed through Victoria’s Upper House on 22 November 2017 and through the Lower House on 29 November 2017.   

In order to access voluntary assisted dying, a person must be over the age of 18 and an Australian citizen or permanent resident and must ordinarily reside in Victoria. A person must also have decision-making capacity in relation to voluntary assisted dying, and must be diagnosed with a disease, illness or medical condition that:

• is incurable; and
• is advanced, progressive and will cause death; and
• is expected to cause death within weeks or months, not exceeding 6 months; and
• is causing suffering to the person that cannot be relieved in a manner that the person considers tolerable.

Aged care providers and their staff will be able to exercise their rights as either conscientious objectors or assenters. This means they will have a right to refuse to certain matters including to:

• provide information about voluntary assisted dying;
• participate in the request and assessment process;
• administer a voluntary assisted dying substance;
• be present at the time of administration of a voluntary assisted dying substance.

The Act also has other practical implications for all Victorian aged care providers including the need to ensure they have appropriate policy and procedure documents in place which incorporate the provisions contained in the Act.

While the legislation has now received royal assent, there will be a further 18 months before anyone is given access to voluntary assisted dying. During the 18 month implementation phase, we will provide a range of information and guidance to approved providers regarding the steps that providers will need to take to implement the changes.

We will continue to monitor the Act and provide updates on any relevant developments.

Should you require any further information, please contact us. 

As we detailed in our article on 6 November 2017, the Housing Legislation (Building Better Futures) Amendment Bill 2017, that significantly amends the Retirement Villages Act 1999 (RV Act), was passed in the Queensland Parliament on 25 October 2017. It was subsequently assented to and became law on 10 November 2017.

Only the following amendments commenced on that date:

1. Exit Entitlement

• for any residence contract terminated prior to 10 November 2017, the operator will be required to have paid the residents their exit entitlement by 10 May 2019.
• otherwise, the operator is required to pay the residents their exit entitlement within 18 months of the date of termination of their residence contract.

2. New Part of the RV Act – the new behaviour standards for residents and operators (and their staff), including:

• an operator must take reasonable steps to ensure a resident does not interfere with the reasonable privacy of another resident.
• an operator must give a written response within 21 days of receiving a written complaint, proposal or question from a resident or former resident (or their representative).

If you require assistance to amend your template documents to be compliant with the new mandatory buy-back provision and new legislative rights and obligations for residents and operators, please let us know.   

All the other amendments to the RV Act will not begin until a date to be determined by proclamation in the future. We will notify you of that date when it is announced.

We will also be keeping a close eye on when the Department of Housing and Public Works will be issuing any detail regarding the new documents in approved forms. We will therefore be well placed to support operators through the transition so that your documents may be tailored to the new approved forms promptly.

Regional operators….Are you interested in attending a briefing session?

Following our recent briefing session on the amendments to the RV Act, held in Brisbane on Friday 24 November in conjunction with ACSA’s Seminar Series, we have had several enquiries from operators about additional briefings, with some from operators in regional areas.

If you are a regional operator and would like to attend a face-to-face briefing session please register your interest here.

If you have any queries related to the content of this article, please contact us.

This article is for information purposes only and should not be taken as legal advice.

What a question!

The coming election is about a range of things, with the Adani mine as one of the biggest issues.  The complete absence of comment from any political party about their position on strata law reform indicates it is way down the list for everyone.

As it sits right now we have out there in the legislative ether:

• Lot entitlements – the discussion paper and QUT’s recommendations
• By-laws and scheme termination – the discussion paper and QUT’s recommendations
• Body corporate governance – the discussion paper and QUT’s recommendations
• BUGTA review – the discussion paper only, so far

The lot entitlements discussion paper was issued in February 2014 which is almost four years ago. The BUGTA one was issued in September this year. 

Your guess is as good as ours as to what the make-up of the new parliament will be.  We have no idea who will be running Queensland come 26 November or what their legislative priorities will be for strata.

As much as we think the bulk of the recommendations are not contentious, some are. The most contentious are the ability to adjust lot entitlements and the forced sale of strata properties for economic reasons.

Until then we simply have to ‘live in the now’ and operate as we are, not as what might be.

Whilst it is recognized that most providers offer an annual vaccination program, the Federal Government has now mandated that all aged care operators offer the flu vaccination to their staff in response to the serious nature of last season’s influenza virus, extensive outbreaks across the sector and subsequent deaths (the Department Media Release can be found here.

A robust infection control program underpins a safe living environment in a close community context.  A key public health strategy to mitigate the impact of the flu in the aged care sector is vaccination.  However, at this time there is no requirement under law for staff to be vaccinated meaning staff have the right to refuse. The onus of responsibility is on management to be tactical in employing strategies to increase staff uptake of the vaccination program.

Strategies may include:

management promotion and recommendation via memo, flyers, automated emails and themed messages on clinical system login pages
increasing staff awareness through mandatory five-minute toolbox talks and raising on staff meeting agendas
simplifying access for staff through an on-site vaccination program which may be offered across two or more days to optimize staff availability
increasing staff motivation by offering team incentives to gain herd immunity of 95%. Encourage staff buy-in through promoting the program as a team activity.

As there is no legislative requirement for aged care staff to have a flu vaccine, an approved provider cannot implement a ‘no jab, no shift’ policy for existing staff.

A provider can, however, choose to make it a condition of employment (for new employees) that each employee must have a flu vaccine. However, this could not be applied as a blanket rule otherwise it may lead to unlawful discrimination, for example, if a person is not able to have a vaccination as a result of pregnancy, on religious grounds or if they have a recognised medical contradiction to the flu vaccine.

Whilst the flu vaccine does not provide complete protection, the introduction of this new policy by Federal Government is aimed to ensure that Aged Care providers and staff take all measures available to minimize risk to older Australians during this flu season.

Hynes Legal provides legal advice on a range of issues relating to vaccine requirements in aged care, including providing template workplace policies. Contact us for more information.

 [HL1]http://www.health.gov.au/internet/ministers/publishing.nsf/Content/5E3ABA7C2E9073C3CA258277001B3DE1/$File/Minister%20Greg%20Hunt%20and%20Minister%20Ken%20Wyatt%20Aged%20Influenza%20Programs.pdf

Hynes Legal is pleased to announce the appointment of experienced commercial lawyer, Helen Kay, as an Associate Director.

Helen brings over 15 years commercial legal experience within top-tier law firms as well as running her own legal practice. Helen has practiced law in both in the UK and Australia with experience spanning commercial property, banking and finance, mergers and acquisitions, franchising, leasing and general corporate/commercial advice. Among her previous roles, Helen led the corporate and commercial team of a boutique health and aged care law firm in Western Australia, advising a range of aged care clients.

Helen’s industry and general commercial law experience perfectly align with Hynes Legal's unique aged care & retirement living industry focus. Helen is a great addition to our already highly specialised team, in particular, the increased capacity to provide support to clients across a wide range of property and commercial transactions and general corporate advice.

Helen’s areas of practice will include will include all aspects of commercial law, including:

• Property transactions
• Business/asset sales
• Mergers and acquisitions
• Corporate/commercial advice
• Construction contracts
• Corporate governance 

If you would like to find out more about Helen’s experience or are seeking expertise in all aspects of commercial law, visit our website or contact the team at Hynes Legal on (07) 3193 0500. 

Click here to download a PDF version.

---

We all know motel leases have finite terms. There is nothing standard about any of them and the term itself can be expressed in many ways.  

The starting term of most leases is 20 to 25 years. This can be for a set term (i.e. 20 years from 1 June 2010 to 31 May 2030). If that is the case, the term is set for that period. There is nothing more that you need to do to secure it.

A more common situation is the term is spread into an initial term and any number of options. This might be five years from 1 June 2010 to 31 May 2015, with four or five options for a further five years. This gets to the same total term, but it is sliced into different periods.

There are obvious variations to this – as the term and the options can really be any length of time. The combinations are endless. Option clauses were originally designed to give tenants the right to bail out of a lease commitment if the business was not working for them.  

If you have a substantial amount of capital value tied up in an asset (like a motel lease) it is very unlikely that you won’t exercise and option, but here we are. They still exist.

The most important thing is that if you have a lease with an option you must exercise it. If you don’t, your lease could come to an end. It is as simple as that.

An option is normally exercisable solely at the discretion of the tenant (the motelier).

Some option clauses will simply provide that if you give notice to your landlord by a certain date then the option will come into existence. If so, there is no further approval is needed from the landlord.

Often in motel leases the options are automatic – but even in this case you should check them and ensure that the required documents are signed and registered in the titles office to document the extended term. This is important and often overlooked.

Making sure you physically exercise the option by the date required is critical. Normally no one will remind you and given the dates can be many years in the future, they are easy to forget.

Moral of the story? If you are not sure, get your lease documents out and have a look at them. If you are still not sure, ask us!  We are more than happy to have a look at them for you and invite you to upload a copy of your Lease here so that we can advise you of the key dates.

To access a PDF version of this newsletter, click here.

---

On Friday, 2 March 2018, the Federal Court of Australia handed down its decision concerning the validity of the  “Asset Replacement Charge” which Regis Aged Care has been charging to residents (a copy of the decision can be found here).

The Federal Court ultimately found that the Charge is inconsistent with the Aged Care Act 1997 (Cth) (the Act) and Principles and is not properly chargeable.

Key issue

In September 2016, the Department published guidelines and advice regarding the practice of charging a ‘capital refurbishment fee’ to residents and that these fees were not supported by the legislation (the Department’s publication can be found here).

Following this, Regis applied to the Court for a ruling as to whether the Act contains any explicit or implied prohibitions on the imposition of charges which do not directly benefit the resident and argued that the charge is properly chargeable.

The Charge

As part of its resident agreement, Regis were charging residents a fee described as being charged to “…fund renovations, refurbishments and reinstatements of fixtures, fittings and infrastructure, rebuilding and construction of or at Regis facilities across Australia”. The Department argued the charge was for future activities and not charged for services or works from which the resident is likely to derive any benefit.

Characteristics of the charge:   

• a fixed daily amount (between $16.69 and $17.98) which increased by 1.5% on 1 February each year;
• charged for a maximum period of 30 months from the date of admission;
• not charged until the resident is permanently discharged; and
• deducted from the RAD paid.

The Court found  that the charge was not used:

• To provide accommodation to the resident.
• For the maintenance of the building and grounds used by the resident to address normal wear and tear during the normal economic life of the buildings and grounds.
• To provide care and services that are the responsibility of the provider to provider pursuant to the Act and associated Principles.

The Court’s decision

The Court found that the charge is inconsistent with the scheme established by the Act and Principles and that providers cannot charge residents fees where the resident derives no benefit (for example, where the fee does not secure better living conditions for the resident, additional services or more one-on-one care).

The Court also went on to make several key points as follows:

• If the Court were to accept Regis’ argument that the charge is to be construed as a contractual matter to be agreed between the parties (as opposed to it falling under the Act), there would be no accountability or supervision to ensure that the monies received were actually expended for the purposes for which they were levied. The Secretary would have no power to inquire about this, as it would be a matter which falls outside of the statutory scheme.
• The charge was in effect a condition of entry imposed by Regis of any individual into one of its care facilities (except where the individual is fully supported or admitted for respite). This, coupled with the fact that residents derive no benefit from paying the Charge, was an important feature and in-part led to the finding that the Charge was not properly chargeable under the Act. It was left open as to whether, had residents been able to ‘opt out’ of the charge or negotiate, this would have had any effect on the validity of the Charge under the scheme.
• The Court rejected Regis’ argument that the charge enhances choice and flexibility for residents. The Court instead found that, where the resident derives no benefit from a Charge, there is a unilateral imposition of a charge and there is no evidence to suggest payment of a charge is negotiable or that its rates are negotiable – resident choice is not enhanced, rather it is inhibited.

The Court has not yet made any orders in relation to the decision e.g. whether the charge paid by residents should be refunded. Other providers who were charging a similar fee have elected to stop charging the fee and or refund the fees paid to residents.

For further information please contact us here.