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The JobKeeper 2.0 impact on Commercial Property Leasing Regulations

With the extension of JobKeeper to 28 March 2021, it raises the question of whether the commercial property leasing Regulations introduced by each state and territory will also be extended.

Why does JobKeeper 2.0 effect the Commercial Property Leasing Regulations?

Regulations were implemented across Australia to require landlords to provide rental relief to eligible tenants who were experiencing financial hardship due to the COVID-19 pandemic. The Regulations also gave effect to the National Cabinet’s Mandatory Code of Conduct (Code) which laid out various leasing principles to be implemented by each state and territory. The Code specified that it is to have effect until the end of the JobKeeper Scheme.

At this stage it seems the extension of JobKeeper now means most of the Regulations are set to finish before 28 March 2021. Most of the Regulations were given hard end dates which approximately aligned with the original JobKeeper scheme expiry date of 27 September 2020.

Which Regulations were given hard end dates?

The jurisdictions with specified end dates are:

  • Victoria: 29 September 2020
  • New South Wales: 24 October 2020 (or rather 6 months after the commencement date)
  • Queensland: 30 September 2020
  • Western Australia: 29 September 2020
  • South Australia: 30 September 2020

This means that unless each of the above Regulations are amended, eligible tenants in VIC, NSW, QLD, WA and SA cannot rely on the Regulations to require their landlords to offer rent relief beyond the dates specified above.

Which Regulations do not have specified expiry dates?

Whilst no jurisdiction has inherently linked their Regulations for the duration of JobKeeper, a few have provided for more flexible enforcement periods. They are:

  • Tasmania: The financial hardship period ends on the day declared by the treasurer, which can be any date within 12 months of commencement of the Act authorizing the Regulations.
  • Northern Territory: Regulations are in force while the COVID-19 public health emergency is declared or while an EMA declaration is in force.
  • Australian Capital Territory: The prescribed period ends on the first day no COVID-19 emergency is in force or any later day declared by the minister.

What can we expect to see?

The jurisdictions that introduced Regulations with hard end dates will require amendments to their Regulations to align with the new end date for JobKeeper. So far, we are yet to see any developments or announcements from VIC, NSW, QLD, WA or SA.

Written by Sotheary Bryant

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Heightened levels of stress around the pandemic is also a relevant factor. An April 2020 study reported 88% of the participants (US employees) faced moderate to extreme stress during the pandemic and nearly 70% faced the most stressful time of their professional career.

Paul Evans

Managing Director, Toro Digital

Psychological hazards of e-working during the pandemic is a relevant factor. The Australian Psychological Society identified these hazards as conflicts between work and family, workload and over-working, future uncertainty and isolation/loneliness.

Heightened levels of stress around the pandemic is also a relevant factor. An April 2020 study reported 88% of the participants (US employees) faced moderate to extreme stress during the pandemic and nearly 70% faced the most stressful time of their professional career. Participants noted their productivity consequently declined by at least one hour a day for 62% and at least two hours for 32%.

Unsurprisingly, there has been a marked rise in mental health related prescriptions since March 2020.

These risks can be mitigated by undertaking appropriate risk analysis for each employee, ensuring controls are instituted that mitigate those risks, ensuring regular communication between management and employees around individual circumstances, setting clear expectations including around joint goals and objectives, scheduling regular informal team gatherings, and ensuring access to support and resources.

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