It is not uncommon (particularly in rural settings) for employers to offer accommodation to their employees as part of their remuneration package. Particularly in regions like Toowoomba with a housing shortage, this can be a great way to attract candidates.
But how should that be represented in writing? And how does the business protect itself and its interest in the property if things go pear-shaped?
Accommodation in employment packages is touched on by a messy mix of legislation you need to understand. So, we asked our friends at Batch Mewing Lawyers to add their brains to ours and come up with some pointers. Please note that this is not legal advice; it is general information only.
The legislation
Employees living in employer-provided accommodation will gain rights under the Residential Tenancies and Rooming Accommodation Act 2008 (the ‘Act’). Employers may also have further obligations under the Workers’ Accommodation Act 1952 and Pastoral Workers’ Accommodation Act 1980, depending on the industry.
Terms of the agreement
Employers should consider what is included/excluded when providing accommodation to employees. For example, does it include the provision of electricity/gas, phone/internet or any other services? What is allowable in relation to additional tenants or animals? What are the expectations in relation to the maintenance of the property? These types of considerations should be clearly set out in the terms of the agreement.
While the employment contract is one way to clarify these arrangements, it is important to note that an employer cannot rely on a clause in an employment contract alone to establish the terms, nor to evict an employee.
Because of this, employers should consider entering into a fixed-term lease with the employee, which requires them to vacate their employer-provided accommodation upon the end of their employment.
How to evict the employee from the property?
Both the employment contract and fixed term lease agreement should make clear that the accommodation is for the purposes of employment and that, once employment ends, the employee is to vacate the accommodation.
Once employment ends, employers may give a “notice to leave for ending of entitlement under employment”. This requires employers to give:
- four weeks’ notice for general residential tenancies, rooming accommodation (e.g. a boarding house), and tenancies in a moveable dwelling that lasted more than 42 days; or
- two days’ notice for tenancies in a moveable dwelling that lasted less than 42 days.
What happens if the employee refuses to leave after the notice period?
Employers cannot enter and remove the tenant themselves. However, if the accommodation is a rooming accommodation (e.g. a boarding house) the employer can call the police and have them removed after the notice period has ended.
For all other forms of accommodation, employers will be required to go to QCAT to apply for a Termination Order and Warrant for Possession to remove them from the property.
Once these have been obtained, the employer can serve them on the employee, call the police, and have them removed from the property.
What happens if the employee has others living on the property and this is prohibited?
The employer can give a “notice to remedy breach”, which will give the employee seven days’ notice to remedy the breach.
If it has not been remedied, the employer can give a “notice to leave with grounds”, which will give the employee fourteen (14) days to leave.
What happens if the employee leaves personal property on the property when they leave?
The employer will have some obligations regarding any property left behind.
The employer is obligated to contact the owner and arrange its return, and to store it for a period of time to facilitate its return. If the property left behind is personal documents (such as birth certificates, passports), the employer must give this to the owner or to the appropriate government agency.
If goods left behind are not collected or the owner states that they do not want them, the employer may sell them at auction.
What about pets? As for animals – this may be a criminal offence if the animal is left behind. Employers can contact RSPCA or another applicable agency to arrange their removal from the property.
A final word …
As you will see in our article on the importance of contracts of employment it is crucial to think through the terms you are offering an employee, and then being clear on those terms in writing. Before finalising any arrangements, we recommend seeking advice. You can reach out to our team for all things HR, and may also wish to talk with your friendly real estate agent or lawyer if you are seeking advice on a particular situation.