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What does the Act do?

Prevents landlords from evicting residential tenants who have fallen into financial hardship due to the COVID-19 pandemic.

Introduces a moratorium on eviction for six months except in limited circumstances including, for example, if a tenant is causing serious damage to the property or injury to the landlord or a person in adjacent premises; the landlord or tenant is experiencing undue hardship; a tenant is experiencing family violence and the perpetrator needs to be evicted; the tenant abandons the premises; or the agreement is frustrated.

Prohibits rent increases from 30^th March 2020 to 29^th September 2020 (Emergency Period).

Provides that any fixed term tenancy agreement due to expire during the emergency period will continue as a periodic agreement.

Relieves landlords of the obligation to conduct ordinary repairs if the reason they cannot do so is COVID-19 related financial hardship or a lawful restriction on movement.

Enables a tenant to end a fixed term tenancy prior to its end date without incurring break lease fees (tenants will still be liable for damage and rent arrears).

Can tenants be evicted during the Emergency Period?

Tenants can still be evicted if they are causing damage to the property, posing a threat to the landlord or neighbours, or abandon the property.  Provisions supporting victims of family and domestic violence will also continue to apply.

Tenants can also be evicted where arrears of rent were accrued prior to the Emergency Period.

What should affected landlords and tenants do?

Affected landlords and tenants are urged to negotiate a mutually acceptable short-term agreement in a bid to preserve the tenancy during the emergency period. However, if agreement can’t be reached, conciliation proceedings must be entered into by landlords and tenants, a move that aims to relieve pressure on the Magistrates Court and State Administrative Tribunal (SAT).

What type of tenancies are affected?

The Act applies to residential tenancies agreements under the Residential Tenancies Act 1987 (WA), long-stay agreements under the Residential Parks (Long-stay Tenants) Act 2006 (WA) and boarders and lodgers. The Act also applies to all public housing tenancies and government employee housing provided by the Housing Authority.

What does all of this mean?

A moratorium on evictions for six months means landlords are not allowed to evict tenants in cases of severe financial hardship related to COVID-19, during that period of time.

It is a moratorium on eviction, not a moratorium on rent. Tenants should continue to pay rent if they can afford to, to avoid building up a debt. Tenants should discuss their financial situation with their property manager or landlord as soon as possible if they are struggling to make rent payments at this time.

When it comes to managing the social and economic issues related to COVID-19 we are all in this together and landlords and tenants will need to talk to each other and work out a way forward.

Keeping renters in their homes during the pandemic can help to stop the spread of COVID-19 – allowing people to stay in their accommodation is for public health reasons as well as addressing the problem of tenants moving at a time when it might not be possible financially.

Landlords, who may also be in financial distress, should bear in mind that in may be difficult to fill a vacant rental property in the next six months.

Even without this moratorium, tenants were not going to be evicted overnight. There is a process in place in Western Australia for tenancy evictions and this involves:

• the issue of breach notice with a fortnight to bring rent up-to-date;
• a termination notice if rent is still outstanding after 14 days;
• an application to the Magistrates Court then needs to be made within 30 days;
• a Magistrates Court order to evict a tenant and a hearing date cannot be earlier than 21 days after the notice of termination is issued; and
• if the Magistrates Court makes an order that the tenant(s) must leave, and they believe they are likely to suffer hardship as a result, tenants can ask the Magistrate for the order to be suspended for up to 30 days.

In the meantime, tenants should pay what rent they can – these changes are about allowing time for tenants to get their financial situation sorted out, so they can start paying rent again as soon as it is practical to do so.

Landmark sexual harassment decision

Sexual harassment is a minefield for both employees and employers. Unlike workplace bullying and harassment, workplace sexual harassment does not need to be repeated. Liability can steam from a one off incident.

In the past, victims of sexual harassment were able to sue for loss of income and also for humiliation and injury to feelings. Damages for humiliation and injury to feelings were generally limited to between $12,000 and $20,000.

The Courts in a recent decision have said that such damages do not reflect present community standards. In Richardson v Oracle Corporation Australia Pty Ltd, the employer was ordered to pay $100,000 for pain and suffering and loss of enjoyment of life to the employee who was sexually harassed in her workplace, along with a sum of $30,000 for loss of wages.

The facts of the case are as follows. Ms Richardson and Mr Tucker were both employed as sale representatives of Oracle, a technology company. They worked closely together preparing tender proposals. The conduct that Ms Richarson complained of, were various comments and sexual advances made by Mr Tucker, which included the following:

1. “Gosh, Rebecca, you and I fight so much.. I think we have been married in our last life“;

2. “So Rebecca, how do you think our marriage was? I bet the sex was hot“;

3. “Gosh, it’s a good thing you didn’t come out [to a work function after party] because I think if I were drinking with you I would wind up in the corner with my arms around you kissing you“;

4. “Oh, you know you love me, you know you want me“;

5. “We should go away for a dirty weekend sometime“;

6. “I love your legs in that skirt. I’m going to be thinking about them wrapped around me all day long“;

As a result of Mr Tucker’s ongoing conduct, Ms Richardson’s health suffered, she was diagnosed with a chronic adjustment disorder with anxiety and depression and experienced problems with her sexual relationship with her partner.

Ms Richarson complained to Oracle about Mr Tucker’s conduct and Oracle conducted an investigation. Throughout the investigation Ms Richarson continued to work with Mr Tucker. Oracle issued Mr Tucker with a first and final warning, and Mr Tucker apologised to Ms Richardson and was permitted to keep his position. Ms Richardson subsequently resigned from her position with Oracle, due to Mr Tucker’s conduct and Oracle’s handling of the investigation. She then obtained a position with another company for a lesser salary and sued Oracle successfully.

The decision is important in that the bar has been lifted significantly with respect to compensation. In the past, for many women (and occasionally men) who were the victims’ of sexual harassment, there can be a range of factors as to why they choose not to peruse a claim of sexual harassment, including limited compensation.

Although no amount of money will fully compensate an employee who has been sexually harassed, this long overdue decision signals a step in the right direction. As a result, we may see an increase in sexual harassment claims being pursued in the courts or settled through confidential agreements.

Employers will also need to take the above decision as a strong warning as to what will happen if they fail to eradicate a sexually hostile workplace or turn a blind eye to known sexual harasses. The decision is also a timely reminder to employers to ensure their workplace policies are properly implemented and enforced.

Please call Trent Petherick at Petherick Cottrell if you have any queries with respect to this article or employment law related issue.