Click here to download the Fact Sheet – Royal Commission into Aged Care Quality and Safety What you need to know.

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A week has passed since the announcement of the Royal Commission into the aged care sector, and the consultation period for submissions on the Terms of Reference has now closed. Just prior to the close of the consultation period approximately 3,000 submissions had been made to the Department of Health; a clear reflection of the significance of the Commission to all stakeholders in the aged care industry.

As we have seen during the proceedings of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Banking Royal Commission), that Commission has honed in on some very specific issues such as the effective management of complaints, the effective management of documents and the way in which organisations have responded to requests for information from the Commission.

If the aged care sector can take anything from the Banking Royal Commission, it is a clear simple message: be prepared.

Preparation

Hynes Legal has prepared a Fact Sheet for providers to consider their preparation for the Royal Commission. The Fact Sheet is a useful tool for providers to understand and prepare for the potential requirements of the Commission’s proceedings.   

As we await the release of the Terms of Reference for the Royal Commission, we recommend that providers take heed of some of the challenges experienced by the organisations who have operated within the scope of the Banking Royal Commission inquiry and immediately consider your capacity to respond to a request for information that might be provided by the RC.

To that end we suggest providers consider the following preparatory steps:

• Review all Complaints Commissioner matters including all resolved and any unresolved matters. For unresolved matters, consider what responses can be provided.
• Review any historical or current issues with families, be they of an existing or previous resident, regardless if any complaints were made or not.
• Identify any significant complaints which may be unresolved or were not resolved to the satisfaction of the complainants.
• Review and consider your strengths and weaknesses in relation to any regulatory / compliance policies, procedures, systems and processes (ie, conduct a gap analysis)
• Collate and store in a central and easily identifiable and accessible location the following:
  • information relating to complaints made by all stakeholders within at least the last 12 months
  • information relating to significant clinical incidents
  • information relating to reportable assaults
  • information relating to any regulatory and compliance issues within the past 12-24 months;
  • documents subject to legal professional privilege

Providers should review their systems and processes to identify their strengths and weaknesses and what responses can be provided for each.

It is important to take a holistic approach to this review. The Commission provides a significant opportunity for providers to identify areas of improvement but to also identify and promote all of the great work that is done by your organisation and the aged care industry at large.

Our Fact Sheet provides more guidance for providers above and beyond the list above, however, if your organisation requires any specific advice or receives correspondence from the Commission requesting your participation, please contact us for assistance. 

Disclaimer
This content is not intended to be a substitute for legal advice. Providers should always seek legal advice as to how any new legislative requirements will apply to the individual circumstances of their business.

 

On Sunday in a joint statement with the Health Minister Greg Hunt and the Aged Care Minister Ken Wyatt, Prime Minister Scott Morrison announced a Royal Commission into the aged care sector.

The Royal Commission, which is the highest form of inquiry in Australia, is set to focus on residential aged care and home care and will also cover the care provided to young people with disabilities who live in residential aged care facilities.

While the terms of reference are yet to be finalised, it is expected that the scope of the Royal Commission will include:

• The quality of care provided to older Australians, and the extent of substandard care;
• The challenge of providing care to Australians with disabilities living in residential aged care, particularly younger people with disabilities;
• The challenge of supporting the increasing number of Australians suffering from dementia and addressing their needs as they age;
• The future challenges and opportunities for delivering aged care services in the context of changing demographics, including remote, rural and regional Australia; and
• Any other matters that the Royal Commission considers necessary.

We expect that the terms of reference for the Royal Commission will be finalised over the next few weeks after consultation with all relevant stakeholders (i.e. residents, their families and aged care providers) and it is expected that the Commission will progress relatively quickly to begin hearings.

From working closely with our clients, we have an intimate understanding of the great work, systems and processes that providers have in place to serve the community through the provision of aged care and services. We are also aware that our clients are continually introducing to the sector, world-class and ground-breaking initiatives which shape the way care and services are delivered.

With the above in mind, we believe that the industry’s triumphs, as well as its challenges, need to be highlighted during the Royal Commission. We think that the Royal Commission is an excellent opportunity not only to identify and resolve areas of improvement in the sector but to highlight to the broader community the great work delivered on a daily basis. We see the Royal Commission as a genuine opportunity for the industry.

During the Royal Commission, aged care providers will require robust and effective legal collaboration, advocacy and leadership to ensure that this unique opportunity is not wasted and to deliver a positive outcome for older Australians, the community and aged care providers. 

As we have seen with the recent Royal Commission into Banking, Superannuation and Insurance, navigating the Royal Commission landscape can be difficult for those organisations who operate within its scope of inquiry. The Royal Commission into aged care will be no different, and providers will need to be keenly aware of their rights and responsibilities and will need to ensure they have strong advocates representing them throughout the process. 

Hynes Legal has represented and assisted clients with a broad range of inquiries into the aged care sector. We will be offering ongoing information and support to providers throughout the Commission process, including partnering and working collaboratively with peak industry bodies to assist providers.

If your organisation receives correspondence from the Commission requesting your participation in the Royal Commission or if you would like to know more about any of the above please contact us for assistance.

Disclaimer

This content is not intended to be a substitute for legal advice. Providers should always seek legal advice as to how any new legislative requirements will apply to the individual circumstances of their business.

Click here to download a PDF version of the newsletter.

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If William Shakespeare was a Queensland strata title property owner (particularly in North Queensland), he might at this very stage be writing:

To insure, or not to insure, that is the question:

Whether 'tis nobler in the mind to suffer

The slings and arrows of outrageous cyclones, non-conforming cladding, terrorism risks and the like,

Or to take arms against the insurers

And by opposing tell them to get stuffed.

In writing that particularly poorly worded prose, Bill would seemingly assume that he has a choice as to whether he insures his strata title property or not.  But does he?

Let’s start with some basics.

The obligation to insure

This is all set out based on the Standard Module, but the same provisions are included in every other Module – Accommodation, Commercial, Small Schemes and Two Lot.  There is even consistency with older legislation like BUGTA, MUD, IRDA and SCRA.

Every body corporate must insure the common property and body corporate assets to the greatest practicable extent to cover damage and all costs incidental to the reinstatement or replacement of insured buildings.

Damage extends to:

1. earthquake, explosion, fire, lightning, storm, tempest and water damage;
2. glass breakage; and
3. damage from impact, malicious act, and riot.

The obligation to insure can also be built into leases, like those quasi-body corporate entities that are lessees on Hamilton Island and surrounds.  If the lease obliges you to insure, then you must.  The consequences of the failure to insure here are not in the Commissioner’s Office – they are termination of the lease.    

Why must bodies corporate insure?

For us, there are two answers to this:

• Leaving aside the insured entity is the body corporate itself – not an individual owner – an owner of a lot cannot be left affected by another owner’s failure to take out insurance.  Imagine the position if everyone could do their own building insurance, and some insured, and some didn’t.  How do you replace the building if it was damaged?
• Banks need the certainty that they are secured.  If a building of 50 lots burned down, the banks could not be left scrabbling over 1/50th of the value of the land across all of the individual mortgagees.

So the prospect of the obligation to insure ever changing is remote.

Types of plan format

There are two types of plan format for strata title lots – building or standard.  This is going to be over-simplified, but:

• In a building format plan, the boundaries of the lot are the middle of the walls and roof.  Outside that is common property.  This is always the type of plan format in a high-rise, but it can be used in low rise/townhouse style format too.
• In a standard format plan, the boundary of the lot is via survey pegs on the ground, so the owner owns the land on which their lot is built.

Bodies corporate in building format plans must insure the buildings of which the lot forms part.  Standard format lots that standalone must be insured by the owner of the lot, unless there are common walls, in which case the body corporate must insure the buildings.  Owners of standalone lots can enter into a voluntary insurance scheme under that same section and insure jointly with other owners. 

A lot more information is available here on the Commissioner’s website.

What if you cannot get insurance?

We get this question a bit.

Unfortunately, what is always left out is the tail-end of the question, which would then have it framed as:

‘What if we cannot get insurance … that we:

1. can afford;
2. like; or
3. that was like last year’s.’

The brutal reality of the situation is that there will almost always be insurance available.  It is just that the costs of it might be extortionate.  None of this is to make light of what is a serious issue for those suffering from it.  But it is what it is.

The Commissioner has even issued a practice direction on this very topic that addresses what a body corporate must produce to have the Commissioner waive compliance with their statutory insurance obligations.   Even more interestingly, we cannot find a decision that has ever been made on this actual topic!

What can be done?

The Commissioner and the Insurance Council of Australia have produced this tip sheet about how to reduce insurance premiums. 

The ACCC had an enquiry about insurance in North Queensland.  The updated report is here.  There is a final report to come.

The joy of our capitalist system is that we think it is unlikely that the government can make insurers provide insurance.  If an insurer is to provide insurance, it is assuming risk, and it is entitled to price that risk in the way it chooses.  If you don’t like it, the insurer doesn’t get the business, and if the insurer doesn’t like the risk, it doesn’t have to offer insurance.

We agree the situation is coloured a lot by the compulsory nature of it when it comes to strata.  Bodies corporate simply do not have the choice about whether they insure – just who it is with.

One thing that would be an easy fix from a state perspective is the state insurance tax.  The state government adds a cheeky 9% to every premium, and as best we can tell, that raises nearly a billion dollars or so of revenue each year. We’ve highlighted the relevant sections of the Budget Strategy and Outlook (Budget Paper No.2) that reflect this here. When a premium goes from $50,000 to $250,000, that 9% can add up to a lot more than it did the year before.  

Your local state member (if they are from the left side of politics) might be able to do something about that if you ask nicely.  Any other state member might be able to make noise from the opposite side of the chamber but government departments, at any level, will never give up revenue easily. 

We do not have the solution – just the explanation of what the legal position is. We are getting quite a few questions about body corporate costs at the moment, of which insurance can form a large part.  Sometimes these newsletters just help us get through what could be a long explanation with the click of an email, and the intent is that strata managers might be able to do the same.

*sincere apologies to the Shakespeare fans among you all

The Federal Government today released its terms of reference for the Royal Commission into Aged Care Quality and Safety.

Prime Minister Scott Morrison announced the appointment of The Honourable Justice Joseph McGrath, Judge of the Supreme Court of Western Australia, and former CEO of Medicare Australia, Lynelle Briggs, AO, to lead the Commission, that will be based in Adelaide.

The scope of the Commission’s inquiry is wide-reaching, with a focus on the future and quality of aged care services. The Commission has been asked to provide recommendations on improving the provision of aged services as a whole, with a focus on areas such as supporting people with disabilities residing in aged care facilities, dementia care services, services to regional and remote areas and recommendations on innovative service delivery and sustainable practices.

The Commission has also been tasked to consider the interface with other services accessed by people receiving aged care services, including primary health care services, acute care and disability services, and the relevant regulatory systems. Such a focus indicates the government’s desire to see consistency across other sectors as people transition from one care environment to another.

The government received more than 5,000 submissions during the consultation period for the Terms of Reference. While the scope is broad, with focus on quality care and future proofing the industry, it is evident recent media coverage of the industry has influenced the submissions to the Terms of Reference.

You can view the Terms of Reference here and we recommend providers take the time to understand the scope of the Commission’s inquiry. As our recent article recommended, the release of the Terms of Reference reinforces the need to commence preparations now, particularly with regard to records of historical complaints. However, as we also stated, it is important to take a holistic approach to the scope of the Commission’s inquiry. The Terms of Reference also include a task to provide ‘examples of good practice and innovative models in delivering aged care services’. The Commission will be looking to shine a light on those providers offering high-quality care and it will be an opportunity to promote the great work that is done by your organisation and the aged care industry as a whole.

The Commission will commence its inquiry as soon as practicable and will be required to produce an interim report by 31 October 2019 and a final report by 30 April 2020.

We also recommend revisiting the Hynes Legal Royal Commission Fact Sheet for more guidance on Royal Commission proceedings; however, if your organisation requires any specific advice or receives correspondence from the Commission in the coming weeks or months, please contact us for assistance.

Disclaimer:

This content is not intended to be a substitute for legal advice. Providers should always seek legal advice as to how any new legislative requirements will apply to the individual circumstances of their business.

A new Bill has been introduced into the Queensland parliament proposing additional changes to the Retirement Villages Act 1999 (the Act). The proposed amendments aim to deliver consistent protections for all residents across Queensland’s retirement village sector. The suite of changes, including those changes we have previously provided commentary on, continues the Government’s extensive reform into the legislation governing the sector. You can see our previous article here.

The Health and Other Legislation Amendment Bill 2018 (the Bill) was introduced on 13 November 2018 highlighting yet more amendments to the Act.

The Bill will amend the Act to ensure that residents with an interest in a freehold tenured village will also get the benefit of the compulsory buyback provisions that were implemented in previous changes to the Act for residents who lease or licence their units.

These proposed amendments bring consistency across all tenure types and require the scheme operator to “buy back” the unsold unit from the outgoing resident after 18 months by entering into a contract with the resident to purchase the unit. The provisions are intended to provide certainty for residents and improve financial security to enable them to fund their move to their next accommodation.

The changes are intended to apply to existing contracts in a retirement village to create the same protections for new and existing residents.

Operators of villages containing freehold tenures will need to consider changes to their suite of documents to ensure compliance with the proposed amendments.

Reasonable legal expenses incurred by a scheme operator in relation to the purchase may be able to be passed on from the operator to the former resident, but the operator is prohibited from charging the former resident a sales commission on the mandatory buyback.

As the Bill compels the mandatory purchase of a property by the scheme operator and transfer duty may apply to the transaction, the Bill amends the Duties Act 2001 to provide a transfer duty exemption.

As a leading legal services provider to the retirement village sector, Hynes Legal is well placed to assist operators with review and redrafting of their scheme documents to ensure compliance with the new legislation.

Questions?

The content of this report is not intended to be a substitute for legal advice. If you are interested in obtaining further advice in relation to the upcoming changes to the retirement village legislation or require changes to your documents to ensure they are compliant, please contact us.

Hynes Legal is pleased to announce the appointment of three new partners, Madeline Walsh, Amy O’Donnell and Todd Garsden, effective 1 January 2019.

Madeline Walsh’s promotion sees her joining aged care specialist, Julie McStay, as the second partner of the aged care and retirement living team. Julie and Madeline will continue to guide the team during a challenging time for the sector as it heads into the Royal Commission into Aged Care Quality and Safety and major reforms across the retirement village sector.

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 Madeline, 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.
 

Queensland Health has advised of its intention to engage with approved residential aged care providers regarding implementation and application of Chapter 2A Water Risk Management Plan of the Public Health Act 2005 (Cth) (the Act).

Recap of legislation

In 2013, Queensland public health experienced an outbreak of Legionella pneumophila infection (Legionella), which led to a report by the Chief Health Officer in September 2013. Accordingly, in February 2017, the Act and Public Health Regulations 2005 were amended to include provisions requiring healthcare facilities to improve their water risk management practices. The purpose of the legislation is to improve the management and control of health risks associated with water, in particular, the Legionella bacteria, and to provide public transparency of water testing in all healthcare facilities.

The legislation required immediate implementation for all Queensland Health hospitals and facilities, however, the implementation for residential aged care facilities other than State facilities was postponed.

Legislative requirements

Under section 61C of the Act, every Queensland Health hospital and all Queensland public and private residential aged care facilities must manage water-related hazards by developing a water risk management plan (WRMP).

The legislation also requires that health care facilities notify the chief executive of the Department of Health, within one business day, when Legionella has been identified in the facilities water and that the healthcare provider submits periodic reports to the Department of Health summarising results of Legionella testing.

The Department of Health is preparing to engage with healthcare providers to establish an approach to implement these legislative requirements. The Department has advised a survey will be sent to all healthcare providers to commence this process in early 2019. The survey will ask questions for healthcare providers to answer to provide information to the Department to establish a process of implementing these requirements.

Why is this relevant?

If you operate a residential aged care facility, you should ensure you are aware of the legislation and commence developing a WRMP.

In accordance with the Act, when implementing a WRMP you should consider the following key steps:

• establish a water risk management team;
• describe your facility’s water distribution system
• identify any potential hazards;
• conduct a risk assessment regarding these hazards;
• identify any locations, process and activities to manage these hazards; and
• implement the following:
  • a monitoring program;
  • procedures for corrective actions;
  • procedures for management of incidents and emergencies; and
  • record keeping and a schedule for updating your WRMP.

Further information regarding implementing a WRMP, can be obtained from the Department of Health Guidelines for Legionella Control at this link.

In order to enable the Department of Health to develop an effective implementation strategy, it is important, once the survey is received, to ensure that your organisation completes and returns appropriately.

The content of this report is not intended to be a substitute for legal advice. If you are interested in obtaining further advice in relation to the implementing a water risk management plan or require further information about the Water Risk Management legislation, please contact Julie McStay, Director – Aged Care and Retirement Living, Hynes Legal.

 

The Department of Health has announced a new Australian Government initiative, the Specialist Dementia Care Program (SDCP), to assist providers with caring for individuals with Dementia who demonstrate severe behavioural and psychological symptoms.

To give effect to the SDCP, the User Rights Amendment (Specialist Dementia Care Program) Principles 2018 were introduced and amended the User Rights Principles 2014. The relevant amendments came into effect on 13 December 2018.

Importantly, the relevant amendments will only affect an approved provider’s responsibility to provide security of tenure to care, recipients, as it applies to recipients of specialist dementia care under the SDCP.

Purpose of SDCP

The SDCP aims to provide a person-centred, multidisciplinary approach to caring for individuals with dementia with a large focus on the individuals who exhibit very severe behavioural and psychological symptoms of dementia who are unable to be appropriately cared for in mainstream aged care services.

This specialist dementia care will be delivered by existing approved providers in dedicated units within residential care services. The care will be time-limited and provide intensive, specialised residential care with a focus on stabilising and reducing the person’s dementia-related symptoms over time with the aim of enabling the transition to a less intensive care setting.

The amendments will introduce additional circumstances where a residential care recipient who is receiving specialist dementia care can be required to leave a residential care service or be moved to another room within the service. Providers will, however, still be required to comply with the requirements of finding suitable alternative accommodation and provide appropriate notice when asking a care recipient to leave.

What this means for providers

Providers will be asked in early 2019 to tender for grant opportunities to participate in the SDCP. This initial tender process will advertise 14 specialist dementia care units and aim to have the first units operational in 2020. A second funding round will follow in 2021-2022 for an additional 20 units.

Questions?

The content of this report is not intended to be a substitute for legal advice. If you are interested in obtaining further advice in relation to the Specialist Dementia Care Program, please contact Julie McStay, Director – Aged Care and Retirement Living, Hynes Legal.

Click here to access a PDF version of this newsletter.

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Governments create laws.  Courts and tribunals interpret those laws when they make decisions on disputes.  We all then rely on those interpretations as gospel in terms of what the legislation actually means.  

Industry always holds its breath when what has been a long-standing practice or assumption is appealed. Higher authorities can overturn the decisions of lower ones. Take the deck dispute that went all the way to the High Court, with opposing decisions along the way.

The other recent example was the decision on the timing for commencement of proceedings for recovery of body corporate debts.  A lower court interpreted a time frame that no one had operated by, but that was overturned on appeal.

The whole argument about short-term letting in Queensland strata law hinges on section 180(3) of the BCCM Act.  Adjudicators have been very consistent in their interpretation of that so far as it relates to whether short-term letting is a residential use.  We wrote about that previously here.

The Queensland Civil and Administrative Tribunal (QCAT), which is where adjudicators’ rulings get appealed, has now conclusively determined whether the interpretation adopted by adjudicators has been right.

The legal position has not changed from when we first wrote about this issue, but there is some more meat on the legal bones as to why that remains so.

The QCAT matter was an appeal by a body corporate about a decision made by an adjudicator in Hilton Park.  That decision was consistent with previous rulings that said a body corporate could do nothing to restrict short-term letting under its by-laws.

The body corporate’s arguments were relatively novel, which makes the decision all the more interesting.

The key sections of the BCCM Act that were considered were 180(3) and 180(4). These are:

• If a lot may lawfully be used for residential purposes, the by-laws can not restrict the type of residential use.
• A by-law cannot prevent or restrict a transmission, transfer, mortgage or other dealing with a lot.

The body corporate argued that the use letting of a lot (be that for short or long term) was a commercial purpose, not a residential one. If that was the case, the body corporate was not prevented from being able to regulate the use of the lot in terms of having a minimum length of tenancy (which was proposed as six months, which therefore killed off any short-term letting).

For us there are some key takeaways:-

Why refer to the ‘type’ of letting if there is only one type?

The member referred back to parliamentary intent when the BCCM Act and the related Modules were created.

Section 180(3) was broken down into two parts:

1. If the lot can be used for residential purposes – which was clearly the case as it was approved for that.
2. The by-laws can not restrict the type of residential use – if residential use was meant to be permanent/long term only, then why was the word ‘type’ included?  That indicates there is more than one style of residential use to which a lot can be put.  Other than long-term residential use, one of the other types is clearly short-term use.

Short term letting is not restricted under the Standard Module.

There is a misconception that the Standard Module is for permanent occupation style accommodation only.

The Explanatory Note for the introduction of the Standard Module provides that:-

‘The policy objective of the Body Corporate and Community Management (Standard Module) Regulation 2008 (the new Standard Module) is to provide management processes for predominantly owner-occupied schemes and schemes which are a mix of permanent residential and holiday letting.’

There is no validity to the argument that being regulated by the Standard Module means that short-term letting can be restricted or is prohibited.

Short term letting is not a commercial use for the purposes of the BCCM Act

The Commercial Module applies where the lots in the scheme are predominantly commercial lots, which means a lot which is:-

1. used for commercial (including retail) or industrial purposes; and
2. not an accommodation lot or a residential lot.

A residential lot is a lot which is used for residential purposes, whether or not the lot is also an ‘accommodation lot’.  An ‘accommodation lot’ means a lot that is either or both of the following:-

1. the subject of a lease or letting for accommodation for long or short term residential purposes…, or
2. part of a hotel.

So the government has seemingly referenced that the intentions for ‘commercial’ are retail or industrial-type purposes (which would also include office use) but that residential lots can be let for both short and long-term purposes.

Holiday letting is a ‘dealing’ with a lot

When someone lets their unit, whether short or long term, they generally give away exclusive possession of it for the period of the tenancy.

Section 180(4) prevents a by-law from preventing or restricting a dealing with a lot.

The grant of a lease (be it for one day or 12 months) is a dealing.  The BCCM Act prevents a body corporate from interfering with that dealing – in which setting a minimum length of tenancy in place would be.

Like it or not, the only place these issues regarding short-term letting can be resolved is with the local authority and their planning rules.

You can read the decision here.

Relevant articles

Can a body corporate stop AirBnB

 

There have been some important to changes to most modern awards in recent weeks.

The key changes relate to:

• Casual conversion rights;
• Requests for flexible work arrangements;
• Timing of termination payments; and
• Limitations on deductions for failing to provide notice.

Most of these changes have already taken effect and impact all employers who are covered by a modern award (or who are in the process of negotiating a new enterprise agreement).

The Fair Work Commission recently issued a number of decisions amending standard clauses across most modern awards.

Whilst many of these changes relate to simplifying existing wording, there are several substantive changes relating to casual conversion, family-friendly work arrangements and termination payments. Most of these changes have already come into operation.

Casual conversion rights now available to all

A model casual conversion clause has now been inserted into all modern awards which didn’t already have such a clause.

Under the model clause, a casual employee who has been working a regular work pattern for at least 12 months can request to convert to full or part-time employment.

Where such a request is made, the employer:

• has 21 days to consider the request and provide a written response; and
• can only refuse the request on reasonable grounds.

In addition, employers have an obligation to notify existing employees of their casual conversion rights by no later than 1 January 2019 and for new employees – must notify them within the first 12 months of their employment.

Businesses need to take action now to ensure that they have sufficient processes and procedures in place to manage requests for casual conversion and ensure compliance with notification and timing requirements. Consideration should be given to developing a casual conversion policy & procedure and template notification and response letters.

In addition, given the growing risks associated with the engagement of casual employees on a long-term or regular basis, businesses should take a proactive approach to monitoring casual hours and offering conversion to permanent employment (even in circumstances where this hasn’t been requested by the employee).

To support businesses in this area, we offer a casual conversion package which includes advice on the risks associated with long-term casual employment (and tips on how to manage that risk), a casual conversion policy and supporting documentation. Please contact us for further details.

Requirements for termination payments

The other substantive changes relate to the timing of termination payments and the ability to withhold money where an employee fails to give sufficient notice of termination

Going forward, most awards require that:

• termination payments be made within 7 days of termination; and
• no more than one week’s pay is withheld in circumstances where an employee fails to give the required period of notice (this is also subject to some restrictions).

Businesses need to review the provisions in their applicable awards and update their template contracts and termination policies & procedures to ensure that these new requirements are complied with. We can assist with this.

Request for flexible work arrangements

From 1 December 2018, all modern awards will be varied to include a model clause regarding requests for flexible work arrangements made under the National Employment Standards.

Under the new clause, before an employer can reject a request for a flexible work arrangement they will need to have discussions with the employee and genuinely try to reach agreement on an appropriate change to arrangements. Furthermore, an employee will have the option of raising a dispute under the dispute resolution clause in the award (and therefore ultimately seek a determination from the Fair Work Commission) if they are not satisfied with their employer’s response to their request.

These are important changes and supplement an employee’s rights under the National Employment Standards. 

If they haven’t already, businesses should ensure they have appropriate policies and procedures in place regarding the making and management of requests for flexible work arrangements. To assist businesses we offer a flexible work package which includes a flexible work requests policy & procedure, application form and other associated templates. Please contact us for further details

Contact us

Please contact Kristin Ramsey – Practice Group Leader, Workplace & Industrial Relations if you would like assistance with implementing these changes or would like further details regarding our casual conversion or flexible work packages.

 

 

 

This article first appeared on the Smart Strata website.

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Section 205 of the Body Corporate and Community Management Act 1997 (the Act) requires a body corporate to provide body corporate’s records within seven days after receiving:

1. a written request from an ‘interested person’; and
2. the fee prescribed under the regulation module applying to the scheme.

An ‘interested person’ includes an owner, buyer or their agent, or anyone else with a proper interest in the information.

Similarly, the regulation modules provide for committee members to have ‘reasonable access’ to body corporate records without the payment of a fee.

The only legislative restrictions on the requirements to provide access to records (to those that are entitled to it) include:

1. defamatory material; and
2. relate to legal professional privilege.

Defamatory material

Section 205(3) of the Act provides that the body corporate is not required to allow a person to see records if the body corporate ‘reasonably believes’ the record contains defamatory material.

Defamatory material is something that will injure another person’s reputation or brings them into hatred, contempt, or ridicule.

If the withholding of material is disputed, the body corporate would need to demonstrate the reasonable belief that it is defamatory by:

1. specifically identifying which material or documents it believes to be defamatory; and
2. providing some evidence (such as legal advice or other expert evidence) to support their ‘reasonable belief’ that the particular material is defamatory.

Legal professional privilege

The principle of ‘legal professional privilege’ is that the client of a lawyer should be able to withhold access to documents which are confidential lawyer-client communications.

Although an individual owner will, through their levies, contribute to the cost of legal advice obtained by the body corporate, individual owners are not a client of the solicitor in their own right. A body corporate is a legal entity that is separate and distinct from the owners.

For this reason, a body corporate has the same right to privilege as any other legal client and is entitled under common law (judge-made law) to withhold records that are subject to ‘legal professional privilege’ even from owners in the body corporate.

Legal professional privilege applies to lawyer-client communications and documents that are created for the dominant purpose of obtaining or providing legal advice or conducting actual or contemplated litigation.

A body corporate is not required to withhold privileged documents and can choose to disclose the information. Usually it is a decision for the committee and their legal counsel whether it is appropriate to claim privilege.

Key takeaways

In summary, when considering any records request, the body corporate should consider:

1. does the person have a right to access the information – is this a potential buyer, tenant, lot owner, committee member?
2. has the person has made a written request – a request from a non-committee member must be in writing.
3. has the person paid the required fee – a request from a non-committee member must be accompanied by the prescribed fee.
4. is the information sought a body corporate record – this really does extend to anything the body corporate has received or sent?
5. does the record contain defamatory material (for example, false statements criticising a person)?
6. is the record is protected by legal professional privilege (for example, confidential communications between a body corporate and a legal adviser).

Ideally, the body corporate (usually by their manager) should have in place a system to categorise material when it arrives to confirm whether any of it could be privileged or defamatory and, if it is, that it is not simply openly placed in the body corporate records.
If you find yourself stuck on any of the above points, give us a call and we can help.

It is cheating from a content perspective to send one of these out (not quite in the sandpapergate class though), but the year has just started, everyone is getting back into the grind and attention spans might be a bit stretched, so the top 6 strata newsletters from last year were:

1. The QCAT decision on short term letting by-laws 

2. Our first and second combustible cladding articles

3. The article on what a quorum is

4. The latest pet decision

5. Body corporate insurance obligations

The cladding ones we could not have predicted at the start of the year as that came from left field, but pets, short term letting and advice about body corporate technicalities remain among the most common things we get asked about day to day.

All the best for 2019.  New content is on the way! 

If so, it is essential that you are up to date with changes in relation to casual conversion rights and the risks associated with long term engagement of casuals who work regular hours.

As a result of recent changes to most modern awards, many casual employees who work on a regular basis for a period of 12 months now have a right to request to convert their employment to full or part-time.

There are rules in the relevant awards about your obligations as an employer to notify employees of this right and rules about how requests to convert must be dealt with. Failure to comply with these obligations is a breach of the Fair Work Act and can result in disputes, prosecution and heavy fines.

In addition, over the past 12 months, there has been an increase in litigation by casual employees claiming that they are really full or part-time employees and therefore have not been paid their proper entitlements. There have already been examples of casuals successfully bringing these claims and there are currently a number of class actions on foot (seeking compensation of over $50 million) regarding similar issues.

We provided information on these issues in an update in November last year.

Since that update, legislation has been passed which helps employers limit their liability in circumstances where a casual employee is found to have the entitlements of a full or part-time employee. To take advantage of this protection particular steps need to be taken (including ensuring that contracts cover off particular matters).

It is essential that organisations properly understand their new obligations towards casual employees and also that proactive steps are taken to mitigate the risks associated with casuals being found to be full or part time employees.

To assist organisations in this respect we are offering a casual risk management package. The package includes:

• Review of your organisation’s casual engagement process and recommendations in light of same
• Advice on the risks associated with long term casual employment and the proactive steps that need to be taken to reduce those risks
• A casual conversion policy and supporting template documents
• A reference guide for HR / Managers (covering the casual conversion process and recommended proactive steps)
• Review and update of your organisation’s template casual employment contract to meet award casual conversion obligations and mitigate risks

Please contact Kristin Ramsey – Employment & Workplace Relations Practice Group Leader for further information and pricing.

 

1 January 2019 marked the commencement of the new unified Aged Care Quality and Safety Commission (the Commission). The Commission’s aim is to integrate and streamline the governance roles of the Aged Care Complaints Commissioner and the Australian Aged Care Quality Agency to create a “one stop shop” for overseeing compliance monitoring, complaints and customer service. From 1 January 2020, the Commission will also take on the regulatory functions of the Department of Health including the approval of providers of aged care, compliance and compulsory reporting of assaults.

Background

The new Commission was established by the Aged Care Quality and Safety Commission Act 2018 (the Act), which was assented on 10 December 2018, to provide aged care consumers and providers of aged care with a single point of contact in relation to quality of care and regulation. Led by independent Commissioner Janet Anderson, the Commission brings together the Commission’s monitoring functions including assessment contacts, review audits of residential aged care services and maintenance by providers of plans for continuous improvement, and all aspects of non-compliance. The Commission will be responsible for the accreditation, assessment and monitoring of, and complaints handling of aged care services and Commonwealth-funded aged care services. The new Commission also features a new Chief Clinical Advisor providing advice to the Commission, particularly on complex clinical matters.

Changes to Regulatory Processes

The Aged Care Quality and Safety Commission Rules 2018 (the Rules) give operational effect to the process of the Commission, combining a number of previously separate legislative instruments and replacing a number of Principles including the Quality Agency Principles 2013. Although the new Rules look quite different due to the combined functions under the Act, the Commission has ensured that the core processes have been preserved. The Commission has also clarified the concepts around requirements for consent to access a service, and applied them to every form of a visit to the premises of a service, whether for the purposes of re-accreditation, a quality review, a review audit or an assessment contact.

The Act and Rules also introduce a number of changes to previous terminology and introduce new terminology that providers are likely to see and hear used by the Commission. For an overview of the new terminology please refer to the Language Glossary.

What this means for providers

The establishment of the Commission is intended to build on the Government’s recent introduction of unannounced re-accreditation audits across Australia’s residential aged care facilities. According to a media release by Ken Wyatt, Minister for Senior Australians and Aged Care, the Commission will see a tripling of unannounced reaccreditation audits of residential aged care homes in 2019, compared to 2018, and a significant increase in unannounced inspections, to more than 3,000 care homes.

From 2 January 2019 providers will also be able to access a Regulatory Policy Helpdesk for support in understanding the Rules and their operational implications. The Commission’s new website also includes resources to help Providers meet the Standards, access to audit reports on aged care homes and Consumer Experience reports about individual aged care services.

Questions?

The content of this report is not intended to be a substitute for legal advice. If you have any questions regarding the new commission, please contact Julie McStay, Director – Aged Care and Retirement Living, Hynes Legal.

 

We don’t need to rehash what we have written previously about the state government’s cladding laws but you can read the first and second newsletters again if you want to.

The date for all buildings that are caught by the cladding regulations to effectively opt out of the regime (if that is the case) is 29 March.  If you don’t opt out, your building is going to stage two, with the consequential costs, even if it is not caught.

If you haven’t looked at the cladding issue, the time is nigh.