Unlicensed real estate agent agrees to additional training – assurance

A real estate agent who allegedly acted as a sales representative for a land agent while unlicensed has agreed to commence further training as part of an enforceable undertaking he has entered into with South Australia’s consumer watchdog.

Marc Olsen’s sales representative licence was cancelled in February 2017, after he failed to renew it.

An investigation by Consumer and Business Services revealed he was allegedly still entering into sales agency agreements with vendors on behalf of another land agent.

Following that investigation, Mr Olsen entered into an enforceable undertaking with the Commissioner for Consumer Affairs, agreeing to cease acting as a sales representative without a current licence and undertake three units that form part of the Certificate IV in Property Services within 12 months of entering into the undertaking.

Consumer and Business Services may use written undertakings in place of court-based enforcement action.

This does not rule out further action, such as prosecution, if the terms of the agreement are not met.

Signed assurance (PDF 109KB)


CBS – educating local hairdressers and barbers

Consumer and Business Services officers were recently visiting salons talking with hairdressers and barbers about the qualifications needed to work in South Australia.

“Our goal this time was to raise awareness and make sure business owners and staff both know what qualifications are needed to work in South Australia.”

CBS officers randomly chose hairdressing and barber businesses in metropolitan Adelaide. They talked with the business owners about the need to check qualifications when hiring and to make sure their own qualifications were valid.

“The response was really positive” said compliance officers. “People were working and busy, so most of the time it was a quick visit and stayed only if people had questions.”

Officers were asked about overseas qualifications and the need for them to be recognised in South Australia. Other topics included the business owner’s responsibility to check staff qualifications before hiring and some general questions about complying with the law.

Officers noted a high level of compliance among South Australian hairdressers and barbers. “There seemed to be a lot of pride in having and improving professional skills. This showed in the types of questions people asked and the information we were able to share,” said compliance officer Naomi Janes

CBS will continue to work with the hairdressing industry. We share the industry’s focus on professional, skilled people so consumers can expect not only a high level of service but a high level of skills when visiting South Australian businesses.

If someone was not appropriately qualified, we would apply a risk based regulatory approach looking at level of penalty, duration of conduct and repeat offenders, consumer detriment v’s industry detriment, public interest and level of profit from the conduct etc.

In South Australia, hairdressers and barbers must be qualified. Employers also have a responsibility to make sure their staff are qualified with a certificate III in hairdressing or barbering. Older or overseas qualifications and experience may also be recognised. Penalties apply to both employers and employees if hairdressing or barbering services are provided without qualifications.


Changes for justices of the peace

Justices of the peace laws have recently changed. These important changes are summarised below:

  • Appointments – can now be made by the Attorney General or a delegate. Previously only the Governor appointed justices of the peace
  • Delegations – the Attorney General may now delegate a function or power to the Comissioner for Consumer Affairs
  • Oath – a justice must take the oath within 3 months of an appointment and does not have to take the oath again if reappointed
  • Suspension – the Attorney General or a delegate may suspend a justice of the peace for up to 2 years if there a reasonable personal reasons. On or before the suspension expires, a justice must notify whether the justice is planning on returning to South Australia before the suspension expires
  • Disciplinary action – a justice of the peace may be reprimanded, have a condition added or suspended if there is a breach of condition of employment or code of conduct. If charged with particular offences, the Attorney General may remove a justice (not special justice) from office
  • False or misleading statement – it is now illegal to make a false or misleading statement in information provided
  • Retired justices – must not use the the desciption of ‘JP (retired)’ for advancing business or commercial interests

Code of conduct changes

A justice of the peace must not:

  • accept money or any other gifts or rewards in connection with their duties
  • excercise power when there is a personal, family, financial or business interest
  • divulge confidential information unless required by law
  • use the office or title to gain business, commerical or personal benefit (some exceptions apply)
  • act dishonestly or act in a way that brings the office into disrepute

Notices

  • A justice must write to the Attorney General, or delegate, within 14 days of any dishonestly rulings found against them
  • A special justice must write to the Chief Magistrate or Judge of the Youth Court within 14 days of any dishonestly rulings found against them

A full list of all changes for Justices of the Peace (PDF 418KB)


Applications open soon for labour hire licences – media release

Consumer and Business Services is urging labour hire companies to make sure they apply for a licence by the start of August, ahead of the mandatory licensing system for the sector that comes into effect in September.

Commissioner for Consumer Affairs Dini Soulio said that from September 1, any business that supplies workers to another person and pays the worker (either to cover wages or a part payment) will need to be licensed.

Applications open soon for labour hire licences – media release


Industry warned of potential for criminal law breaches – statement

A real estate agent who allegedly contravened property rules has acknowledged the breach likely occurred. He has provided an assurance that he will not repeat his actions.

The assurance provided by M&G Property Group Pty Ltd trading as Elders Mawson Lakes and its director, Mr Domenico Mastrogiacomo for two contraventions are a timely warning to the real estate industry.

Read the full statement – Industry warned of potential for criminal law breaches (PDF 102KB)

Signed assurance


Agent’s conflict of interest – also known as beneficial interest or 24G

From 29 January 2018 there are more stringent guidelines that deal with circumstances where a real estate agent or their associate wants to buy a property the agent has appraised or is authorised to sell.

Definition of an associate

The definition of an associate will be expanded significantly to apply to all employees of an agency, as well as relatives of those employees.  Step-relations will also be classified as relatives.

Using the corporate entity

Directors of real estate agencies will be discouraged from using the corporate entity as a vehicle to gain a beneficial interest through the introduction of a vicarious liability provision, unless it is proven that due diligence was exercised and the director could not have prevented the commission of the offence.

Liability of general managers and managers

Both general managers and managers of individual real estate branches will be liable for the actions of their employees in certain circumstances, unless they can rely upon the general defence that exists in the Land and Business (Sale and Conveyancing) legislation. This encourages high level management to ensure that offences are not committed within their agency.

Managers of individual branches (as opposed to general managers overseeing the corporate entity) will not be liable for transactions occurring in other branches.

Penalties

Penalties will increase from $20,000 to $50,000 for many offences.

Aggravated offences will be introduced for each existing offence, with penalties of up to $100,000 or 2 years imprisonment. Offences will be aggravated if vendors are aged over 70, are under guardianship, or are suffering from a mental incapacity.

Time limit for prosecution

The time limit for prosecution proceedings to be commenced will increase from two years to five years, and up to seven years in extenuating circumstances, to allow for the lengthy nature of property transactions.

Please refer to the associate table (PDF 64KB) for more guidance.

Where there is a beneficial interest

The agent must disclose the conflict of interest to the vendor and seek approval from the Commissioner for Consumer Affairs by way of online application.

Where possible, agents should aim to have settlement of their property before 29 January 2018 or from March onwards. For settlement that occurs from 29 January to 28 February an application to obtain beneficial interest will need to be completed at least three weeks prior to the settlement date to allow enough time for CBS to give the application due consideration.

For more information see apply for a 24G exemption.


Bait advertising and underquoting

Bait advertising and under-quoting can have a significant and detrimental financial impact on consumers. The real estate industry is often where the financial impact can be the most considerable.

The CBS Compliance and Enforcement unit regularly check advertisements published online, in social media and newspapers. They also regularly attend open inspections and auctions to make sure advertising and contracts align to avoid misleading prospective purchasers

Media release – Crackdown on dodgy land agents (PDF 356KB)


Advertisements must include a licence number

Many tradies, real estate and second hand vehicle dealers companies and individuals invest in advertising to get their name and brand out in the community to bring in work. But some may not realise that they’re breaking the law if their ad doesn’t include their licence number.

Consumer and Business Services (CBS) has been monitoring advertisements placed by the building trades in recent months and more than 60% of ads don’t comply. CBS compliance officers have checked ads published online, in social media and newspapers across the state.

Individuals and businesses in the the real estate, second hand vehicle dealers industries and the building and related trades found not to include a licence number in advertising will face compliance action, which may include a warning letter, expiation or prosecution. Penalties for failing to advertise with a licence number apply.

The requirement to include the licence number applies to all forms of advertising. This includes their own website, flyers, business cards and vehicles as well as paid ads on television, radio, online or in a newspaper.

In addition to the licence number, building contractors must also include the licence name in all advertising and on a prominent sign on all sites where they are performing building work.

Licensees that act outside the scope of their licence, when contacted by CBS, usually stop advertising or take steps to get the appropriate licence. In more serious cases, particularly where there has been detriment to consumers, CBS will take court action.

Companies and individuals are also reminded of their advertising obligations under Australian Consumer Law. An advertisement must not be misleading or provide false information about things such as:

• actual experience in performing certain work
• customer reviews
• special offers
• affiliation with a particular organisation.

For more information see the guide ‘Avoiding unfair business practices’.

Report any suspected activity around unlicensed trading or advertising at cbs.sa.gov.au/contact-us.