Trading over Easter and Anzac Day
With April fast approaching, it is important that principals familiarise themselves with their rights and obligations during the Easter and Anzac day periods.
Real estate agencies are considered to be an 'office' for the purpose of the Trading (Allowable Hours) Act 1990 (Qld) (Trading Hours Act). As such, real estate agencies are not prohibited from opening or conducting business (including conducting property inspections, holding auctions, open homes, etc.) over the Easter long weekend.
Pursuant to section 34 of the Trading Hours Act, it is prohibited to conduct the business of selling real estate on Anzac Day. While it would be permissible to conduct work associated with the leasing of real estate on Anzac Day, any agencies which open for business on Anzac Day should ensure that sales staff do not attend the office or conduct any work remotely (including holding open homes, and even responding to emails or telephone calls regarding real estate sales).
Penalties for breach of the trading laws are a maximum of $5,514 per breach for an individual or up to $27,570 for a corporation.
Pursuant to section 115 of the Fair Work Act 2009 (Cth) (FW Act), the entire Easter weekend (extending from Good Friday until Easter Monday inclusive) are public holidays, as is 25 April 2022.
Under section 114 of the FW Act, an employer may request that an employee work on a public holiday only if the request is reasonable. It is open to an employee to refuse a request to work on a public holiday if the employer's request is unreasonable, or if it is reasonable in the circumstances for the employee to refuse the request.
Factors which must be considered in determining the reasonableness of a request to work on a public holiday (or a refusal of such a request) include but are not limited to:
The nature of the workplace;
The employee's personal circumstances, including family responsibilities;
Whether the employee is entitled to receive overtime, penalty rates, time in lieu, or a level of remuneration that reflects an expectation of work on public holidays; and
The amount of notice given of the request (or refusal of the request).
Subject to individual flexibility agreements or annualised salary contracts which displace the provisions of the Real Estate Industry Award 2020 (Award) dealing with penalty rates, principals should be aware that full-time, part-time and casual employees are entitled to be paid at the rate of double time for all hours worked on a public holiday, with a minimum payment for three hours.
Commission-only employees are likewise entitled to be paid at the rate of double time for all hours worked on a public holiday, with a minimum payment for three hours. In this regard, clause 16.7 of the Award specifies the various clauses of the Award which do not apply to commission-only employees.
Clause 25 of the Award, which deals with payment for work on public holidays is not listed as one of the clauses which do not apply to commission-only employees. Any payment made to a commission-only employee in respect of time worked on a public holiday must be calculated by reference to the employee's minimum Award pay rate pursuant to clause 14.1 of the Award.
Penalties for breach of the FW Act and/or Award are a maximum of $13,320 per breach for an individual or up to $66,600 for a corporation.
STATUTORY COOLING-OFF PERIOD FOR SALE OF REAL PROPERTY IN QUEENSLAND
Contracts for the sale of residential property in Queensland are subject to a five business-day statutory cooling-off period (unless expressly waived by the buyer or where the property is sold subject to auction conditions).
The statutory cooling-off period starts on the date that the buyer receives a copy of the contract duly signed by both parties, and ends at 5pm on the fifth business day. Where the 5th day after the buyer receives a copy of the contract duly signed is a public holiday, the statutory cooling-off period will expire on the next business day.
Agents should, therefore, ensure that they retain adequate records evidencing the date of delivery of the signed contract to the buyer, in order to properly respond in the event that a dispute arises surrounding the effective period of the cooling-off period.
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