This alert applies to all Victorian subscribers and will likely amend a range of topics.
COVID-19 Omnibus (Emergency Measures) Bill 2020 (Vic)
Please be advised that the COVID-19 Omnibus (Emergency Measures) Bill 2020 (Vic) (the Bill) passed the Victorian Parliament on 23 April 2020 and received Royal Assent on 24 April 2020.
The Bill introduces a series of measures to address urgent circumstances that have arisen in connection with the COVID-19 pandemic. The majority of measures will sunset 6 months after the Bill’s commencement. We discuss some of the important changes below.
Modifications to residential tenancies, rooming houses and specialist disability accommodation
The explanatory memorandum to the Bill states that the Bill amends the Residential Tenancies Act 1997 (Vic) (the RT Act) “to declare a temporary moratorium intended to prevent eviction for non-payment of rent where residential tenancies are impacted by severe rental distress due to the COVID-19 pandemic”.
The Bill makes similar temporary modifications to the law concerning residential tenancy (RT) agreements, rooming house (RH) agreements and specialist disability accommodation (SDA) residency agreements. For example, a new section 539 (section 552 for RHs and section 585 for SDA) will be introduced to the Residential Tenancies Act 1997 (Vic) (the RT Act), which prohibits a landlord, RH owner or SDA provider (as the case may be) (the Owner) from increasing rent payable under the agreement with the tenant or resident under the respective agreements (the Resident) or giving a notice of proposed rent increase to a Resident.
New sections 541, 554 and 587 also require Owners or their agents to permit tenants to pay their rent by certain methods which may include the bill paying service known as Centrepay (administered by the Department of Human Services of the Commonwealth).
A further measure implemented by new sections 542, 555 and 588 provides that a Resident or Owner is taken not to have breached a term of the agreement or a relevant duty provision (defined as section 89 or any provision of Division 5, Part 2 for RTs; section 140 or any provision of Division 5, Part 3 for RHs; and section 498Y or any provision of Division 4, Part 12A for SDAs – essentially the general duties imposed by the RT Act on Owners and Residents) if they were unable to comply with the term or duty provision, or it was not reasonably practical for them to comply, because of a COVID-19 reason (this includes illness, compliance with government directions or severe hardship).
The newly introduced sections 544, 556 and 589 also provide that an Owner or mortgagee in respect of rented premises (or in respect of the room or SDA enrolled dwelling for RH and SDA agreements respectively) must not give a Resident a notice to vacate; and any notice purportedly given is of no effect.
Under the Bill, the commencement of these provisions is taken to be backdated to 29 March 2020 and will extend to the day 6 months after the Bill’s commencement.
Residential tenancies databases
New section 596 prohibits landlords and database operators from listing personal information about a person in a residential tenancy database under section 439E of the RT Act, even if they would otherwise be entitled to do so, where a person has breached the tenancy agreement only because of non-payment of rent and that non-payment is because of a COVID-19 reason.
Retail leases and non-retail commercial leases and licences
In response to the COVID-19 pandemic, clause 15 of the Bill provides that regulations may be introduced temporarily which modify the legislation applicable to retail leases and non-retail commercial leases and licences. Such regulations are not yet available, however, the intention is that they would implement the principles of the mandatory code of conduct in relation to commercial tenants experiencing financial hardship due to the impact of COVID-19 announced by the National Cabinet on 7 April 2020: https://www.pm.gov.au/sites/default/files/files/national-cabinet-mandatory-code-ofconduct-sme-commercial-leasing-principles.pdf.
The regulations are expected to apply to employers under commercial leases (whether or not they are retail leases) participating in the JobKeeper scheme or who are otherwise an SME entity (being a small or medium-sized enterprise, including a not-for-profit enterprise or sole trader, with an annual turnover of up to $50 million). The extent of the exclusions of certain leases from the application of these regulations is not yet clear and will likely be subject to additional limitations imposed by the relevant Minister.
As for the above described changes to residential tenancies and other agreements, the provisions in relation to commercial leases are backdated to extend from 29 March 2020 and will extend to the day 6 months after the Bill’s commencement.
Nurse to Patient and Midwife to Patient Ratios
Section 45C will be introduced into the Safe Patient care (Nurse to Patient and Midwife to Patient Ratios) Act 2015 (Vic) (the SPC Act), which sets out a new temporary power of the Minister to make a declaration to suspend the operation of enforcement provisions under the SPC Act for the period specified in the declaration. The Minister can only make such a declaration if the Minister considers that compliance with a ratio or ratio variation is impracticable for a hospital or hospitals due to the COVID-19 pandemic.
In connection with this, new section 45D provides that the operator of a hospital that is the subject of a declaration in effect under section 45C(1) must, as far as is practicable, staff the hospital in a manner that takes into account the safety of patients and staff, having regard to staffing levels and the skill mix of the staff.
Modifications to WorkCover
The Bill amends the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) and the Accident Compensation Act 1985 (Vic) to the effect that incapacitated workers in receipt of WorkCover payments, who are otherwise not eligible to continue receiving payments beyond the maximum period of 130 weeks (the Entitlement Period), are now entitled to receive 39 weeks’ notice of cancellation of their payments (as compared to 13 weeks’ notice which is presently required) when they reach the end of their Entitlement Period.
The changes apply to employer determinations to cancel payments made from 1 December 2019 to the end of the period of 6 months after the Bill commences.
Please click here to access the full Bill.
For further information please contact the Law Compliance team:
Phone: 1300 862 667