KEEPING YOU UPDATED ON KEY TRENDS AND YOUR DUE DILIGENCE OBLIGATIONS IN WORK HEALTH AND SAFETY / ENVIRONMENT
INTRODUCTION OFFICERSâ€™ DUTIES AND LIABILITIES 5 INDUSTRIAL ISSUES 13 HAZARD REDUCTION 17 WORKERSâ€™ COMPENSATION 20 COMPLIANCE 22 NATIONAL HEAVY VEHICLE REGULATOR â€“ SPECIAL EDITORIAL 27 REGULATOR NEWS 29 ON THE HORIZON 33 LEGISLATION 37 CONTACTS 38
INTRODUCTION The aim of CU UP TO DATE is to provide you with a quarterly update on what we see as the key WHS&E issues and themes of the quarter, and with ongoing support for your due diligence obligations.
In this issue, we have a special editorial from the National Heavy Vehicle Regulator on the changes to Chain of Responsibility laws for Australiaâ€™s heavy vehicle industry, which begin on 1 October 2018.
Some of the other key issues to be aware of this quarter are:
â–º As the coronial inquest into Dreamworld continues we are starting to consider the lessons from that tragic incident. In this edition we look at some of the commentary to date and what Boards can do now to address some of the key lessons.
â–º The focus on labour hire arrangements and protecting vulnerable workers has, if anything increased in the last quarter with Victoria's labour hire laws commencing and an increased preparedness by regulators to prosecute multiple parties in contracting chains. In this issue we look at some recent cases and discuss what can be done to ensure compliance throughout an organisation.
â–º Officers continue to be in the spotlight over breaches of safety obligations, with record fines being imposed in Western Australia and manslaughter charges being laid in the ACT. It's critical that officers not only understand their obligations but are satisfied that they are able to evidence compliance with their obligations.
â–º This quarter has seen an increased push towards the introduction of industrial manslaughter laws across the country both at a State and Federal level following recent introduction of legislation in Queensland. This issue is likely to continue to gain momentum and debate as we head into the next Federal election.
â–º Managing injured workers continues to be a business critical issue with the Fair Work Commission (FWC) providing clarity on conflicting medical evidence in dismissals for incapacity to perform the inherent requirements of a position. In this issue we discuss some of the practical implications for organisations and how they can be implemented.
â–º A recent decision of the New South Wales Land and Environment Court indicates that the courts are not taking environmental offences lightly and will not shy away from imposing maximum penalties and jail sentences on companies and individuals.
â–º The Queensland Government has committed $100 million from the 2018-2019 State Budget to waste to energy projects. Companies planning to undertake these projects in the future and wanting a contribution should start considering their options soon.
â–º The stakes for officers who contravene the Threatened Species Protection Act 1995 in Tasmania are set to rise with the Tasmanian Government proposing to significantly increase fines and introduce possible prison terms for threatened species offences, bringing it more into line with laws in other Australian States.
â–º A NSW Supreme Court case has highlighted the difficulties and potential pitfalls in sub-contracting with multiple contractors, especially in determining who is responsible if there is an environmental incident.
â–º Finally companies are being asked to take a long hard look at look at their culture and consider what impact it has on the health and safety of its workers. Sexual harassment, bullying and mental health impacts are clearly on the Board agenda as companies grapple with how best to deal with these complex and often personal issues.
If you want to know more about how these and other developments will affect you, please donâ€™t hesitate to contact us.
Workplace injury management and Return To Work presented by Shae McCartney
Mental health and wellbeing in the workplace - your duty of care presented by Laura Hillman
Presented by HR Law Masterclass series by Employment Law Matters
10 September Brisbane
NATIONAL SAFETY MONTH 2018
Sydney, 18 June 2018: Clayton Utz partner Shae McCartney was among just 23 senior legal practitioners to receive national accolades at this yearâ€™s Lawyers Weekly Partner of the Year Awards.
The Awards celebrate the recent contributions and achievements of outstanding partners in the legal industry.
Shae, who coordinates the national Safety practice group, was named Partner of the Year in the category of Workplace Health and Safety Relations. Mark Geritz was named Projects, Energy and Resources Partner of the Year and also Native Title Partner of the Year.
Commenting on the achievement, Shae thanked her team and clients. â€œI am extremely grateful to work with an amazing bunch of people - my team work exceptionally hard and this is a credit to all of them who come to work every day with our clients at the forefront,â€ said Shae. â€œSuch credit would not happen without the support of a truly dedicated team and I also give thanks to my clients for trusting me with their relationship, their businesses and working together to ensure the safety of their workers.â€
Clayton Utzâ€™ Shae McCartney named 2018 Partner of the Year
9 October Sydney
25 October Brisbane
31 October Melbourne
The Weinstein Effect: Managing inappropriate conduct in the workplace presented by Abraham Ash and Rebecca Byun
Venue: Sydney Showground
Presented by Informa as part of the Safety in Action conference
Managing risk in a changing world presented by Shae McCartney and Bianca Mendelson
Venue: Clayton Utz Brisbane office
Presented by Clayton Utz
The Weinstein Effect: Managing inappropriate conduct in the workplace presented by Stuart Pill and Emma Vautin
Venue: Melbourne Convention & Exhibition Centre
Presented by WorkSafe Victoria
Clayton Utz are pleased to support Safety Month again this year. We will be participating in a number of safety events over September and October. Clayton Utz are participating in a seminar hosted by WorkSafe Victoria, as well as the Employment Law Matters and Safety in Action conferences. From contractor management risks, workplace injury management, mental health and wellbeing, to conduct in the workplace, weâ€™ll keep you Up to Date. We hope to see you there!
For further information about these events or if you would like to attend, please contact Suzanne Smith, 03 9286 6825, firstname.lastname@example.org or Kristy Rewell, 08 9426 8571, email@example.com
OFFICERSâ€™ DUTIES AND LIABILITIES SERIAL SYDNEY WASTE DUMPER JAILED A recent decision of the New South Wales Land and Environment Court indicates courts are taking environmental offences seriously and will not shy away from imposing the maximum penalties and jail sentences.
The Court sentenced a serial waste dumper in NSW to prison, with a non-parole period of at least two years and three months, for illegally transporting and dumping waste, including asbestos, between November 2015 and January 2016.
The decision marks the first time a person has been jailed in NSW as a "repeat waste offender" under the anti-dumping legislation, the Protection of the Environment Operations Act 1997.
The Court found that the defendant had dumped 461 tonnes of waste at four residential properties. The defendant had advertised free clean top soil, clay, crushed bitumen, and shale to residents; those who responded received the contaminated material. Justice Preston found that the dumping degraded each residential property and exposed residents to the threat of significant harm to health or even death.
The defendant was ordered by the court to remove the illegally dumped waste within 90 days, pay the Environment Protection Authority's legal costs, and publish advertisements outlining his punishment.
Justice Preston emphasised that the defendant's conduct "undermined the integrity of the regulatory scheme" and "blatantly flaunted [sic] the [Act's] proscription against repeat waste offending." For this reason, as well as others such as the seriousness of the offence and the need for significant individual deterrence, the maximum imprisonment was applied.
Environment Protection Authority v Dib Hanna Abdallah Hanna  NSWLEC 80
WHOSE FAULT IS IT ANYWAY? ASSIGNING LIABILITY WHEN SUBCONTRACTORS ARE INVOLVED A recent NSW Supreme Court case confirms that principal contractors do not owe a duty of care to the parties with whom their sub-contractors interact, but it's also a warning that crucial information can be lost as it passes down the chain of sub-contracting, with costly results.
The NSW Supreme Court has dismissed a claim for damages against a principal and three subcontractors after asbestos-contaminated waste was delivered to a site which was not licensed to process it.
Disposal of asbestos waste
A waste management company received asbestos-contaminated mud from a sub- contractor working on the refurbishment of a substation, owned and operated by the principal.
The asbestos-contaminated mud arrived at the facility despite numerous plans and controls to prevent this type of event.
The principal had carried out testing, and disclosed the risk of asbestos to the contractor. That risk was also communicated to the sub- contractor, but not to the sub-contractor's contractor who was engaged to carry out "non- destructive digging" work, which involved water blasting of soil and removal of the resulting excavated mud. The Court found that this sub- contractor would not have accepted the job if it had known of the asbestos issue.
The sub-sub-contractor took a truckload of mud from the site, unaware that it contained asbestos, to the waste facility. The operator of the waste facility did not see any obvious contaminants and so it received the mud, and only realised with later testing that the mud was contaminated, requiring the whole facility to be closed down for decontamination for seven weeks to clean it, causing a claimed loss of $1.5 million.
The waste facility operator brought a claim of negligence against each of the principal, contractor and sub-contractor. In order to succeed, a claim of negligence requires that the negligent party owe a duty of care to the injured party, and has breached that duty. It was argued that the principal had a non-delegable duty of care, which would have made it liable for the negligence of all the sub-contractors.
The Court found that the operator of the waste facility was not particularly vulnerable in this situation. It had control over the waste it accepted for processing, and could have carried out testing for contamination, or required contractors delivering the waste to carry out testing.
The Court also noted that, for public policy reasons, placing such a broad non-delegable duty on companies to ensure that sub-contractors take reasonable care in carrying out activities would be unreasonable.
It was held that none of the parties owed the waste facility operator a duty of care, because there was no relationship of proximity and the situation did not fall into an existing duty of care category.
What it means for you
The cautionary tale here is that it can be difficult to establish liability on a party where there is a chain of sub-contractors. The principal was diligent in disclosing the existence of asbestos contamination of the site and requiring its contractor to put in place appropriate measures to manage any risk associated with it.
Bettergrow Pty Limited v NSW Electricity Networks Operations Pty Ltd as trustee for NSW Electricity Networks Operations Trust t/as TransGrid (No 2)  NSWSC 514
For more information, see our Insights article.
HISTORIC INDUSTRIAL PROSECUTION COMMENCES IN THE ACT A case being called the largest industrial prosecution in the ACT's history was briefly mentioned in the ACT Industrial Court on 17 May 2018.
In 2016, Herman Holtz was killed after a falling crane struck him at the University of Canberra public hospital worksite. At the time of the incident the crane was being used to move an 11 tonne generator on the site.
After an extensive investigation conducted by Work Safe Act and ACT Policing, which alleges significant and systemic failures on site, nine charges against a number of operators managers and supervisors were laid.
The charges are being brought under the Crimes Act 1900 and the Work Health and Safety Act 2001 (ACT) for both category 1 and 2 offences, and include manslaughter charges for the crane driver, prosecution of the contractor's Chief Executive, and the sub-contractor's managing director for failing to comply with their health and safety duty.
The penalties for the offences under the WHS Act are up to $3 million in fines for corporations, $600,000 fine and five years' jail for duty holders, and $300,000 fine and five years' jail for individuals.
The matter was adjourned and is expected to be listed again in July.
What it means for you
This case comes amid a push nationally for industrial manslaughter laws, increased penalties, and officers of companies to be held to greater account for incidents that occur on sites under their control.
In addition to existing laws in the ACT, laws have been introduced in Queensland, are under review in the Northern Territory and have been proposed by governments and opposition parties in Western Australia, Tasmania, South Australia and Victoria.
It also emphasises the increased focus of regulators on the shared responsibilities of officers and others for WHS management on sites.
Work Safety Commissioner Greg Jones said that the range of charges reflected the shared responsibilities under the Work Health and Safety Act, from the boardroom to the workers conducting the activity.
He further stated that â€œAll workers, employers, their directors and managers, both on site and in the office, must ensure that safety is the number one priority,â€ and that â€œA failure to have systems in place to protect the safety of workers can result in a catastrophic injury and loss of life."
Mr Jones has emphasised that ensuring work place safety goes beyond strict legal compliance and a paperwork approach to meeting obligations, but that duty holders should "review their attitude" to safety.
This will assist to ensure that safety is ingrained in the culture and practice of a workplace as much as it is reflected in policies and other documentation.
DREAMWORLD TRAGEDYâ€“ CORONIAL HEARING UP DATE AND LESSONS As the coronial inquest into the deaths of four people on the Dreamworld Thunder River Rapids Ride in October 2016 continues, a number of important lessons on the management of work health and safety risks have emerged.
In late June 2018, the coroner heard from key employees in relation to the incident. It is alleged that the direct cause of the incident was a failed water pump, which resulted in a large drop in water, causing the raft to become caught on the rails. However, the Coronial Inquest has also heard that:
â–º the young ride operator had only been trained on the Thunder River Rapids Ride the morning of the incident and did not know that there was an emergency stop button within her reach and had been told, "not to worry about that button, no-one uses it";
â–º operators were required to conduct over 36 checks in less than a minute, which were described as "impossible" to manage. However, there was no drill training for Dreamworld staff for potential emergency situations;
â–º the water pump had failed twice earlier on the day of the incident and had been reset by a park technician because the park's electrical team was distracted with other problems;
â–º at the time of the incident the park had a policy that a ride was to be shut down and reported to an engineering supervisor after two "exact malfunctions" occurred within 24 hours;
â–º previous collisions and incidents on the ride had occurred in 2001, 2004, 2005 and 2016; and
â–º cuts to repairs and maintenance budgets had been made seven months prior to the incident.
The inquest was adjourned and will resume in October.
What this means for you
The Dreamworld tragedy has triggered a suite of reviews by governments around Australia and has been one of the catalysts for the introduction of industrial manslaughter laws in Queensland.
Some of the key themes that Boards need to be aware of include:
â–º ensuring that risks to health and safety are eliminated is an ongoing duty that cannot be neglected over time or as new risks arise. Businesses need to be periodically auditing safety risks and compliance, identifying risks as they arise, putting in measures to eliminate or control the risk, and reviewing the effectiveness of existing safety measures;
â–º workplace health and safety is as much about culture and people as it is about documentation and formal compliance. There needs to be adequate resources and avenues
for people to raise safety concerns without fear of consequences, and when issues are raised businesses need to treat the concerns seriously and take steps to review and address issues of concern;
â–º in high-risk environments, there is a higher bar to determine what is reasonably practicable to eliminate risks. In those cases, businesses must ensure that they have adequate resources to address WHS risks (whether that be in relation to the upkeep to plant and machinery), ensuring training is adequate and focused on risks specific to the workplace, or planning for maintenance shut downs or closures to address safety risks; and
â–º complacency can have dire consequences â€“ for people (workers and others) and the business. The tragic outcome of the multiple failings in the Dreamworld case speaks for itself. However, it is also clear that increasingly the public expects safety to be a high priority for businesses and will hold organisations to account.
There will no doubt be more lessons to be learned when the Coronial Inquest reconvenes in October. We recommend that businesses pay close attention to these proceedings and consider what lessons can be applied to your organisation.
THIS IS FINE â€“ DIRECTOR HIT WITH RECORD-BREAKING PENALTY The Perth Magistrates Court has handed down a record breaking fine to a company director in Western Australia. The director of FGS Contracting Pty Ltd, Mr Franceschi, was fined $102,500, while FGS Contracting was fined $225,000 for breaching the Occupational Safety and Health Act 1984 (WA) (OHS Act).
Under the OHS Act, officers of a company found guilty of an offence are liable where the offence occurred with the consent or connivance of, and/ or was attributable to the neglect of, the officer.
In May 2016, Mr Franceschi was operating a telehandler in order to lift steel trusses that had been laid out by other employees. The trusses were unsecured and fell, which led to a
17-year-old worker sustaining severe skull, jaw, shoulder and chest injuries, when the stationary telehandler, which was parked without applying the park brake, moved without warning.
In imposing a fine more than double the previous record fine for directors under the Western Australian OHS laws, the Court noted the lifelong consequences of the director's failures in a range of areas, including in relation to training, PPE, and safe systems of work.
What it means for you
Directors and other company officers are increasingly finding themselves under scrutiny for breaches of the law that occur in the workplace whether it be in relation to safety or employment issues. Further, regulators have been taking a more proactive approach to bringing companies and their officers to account for these breaches.
While officers should always ensure that they have undertaken appropriate due diligence to ensure that risks are identified and measures are taken to eliminate risks in the workplace, the risks of personal liability for failures in this area have never been higher.
In this case, Work Safe emphasised the reasonable foreseeability of the acts which resulted in serious injury to a 17 year old boy, and the absence of any safety equipment being provided to the worker.
While this decision was specific to the building industry it reinforces the importance of all officers to be aware of their duties, including:
â–º understanding the nature of the work being performed and the risks to health and safety associate with that work;
â–º ensuring that the business has appropriate resources to eliminate or minimise risks in the workplace; and
â–º ensuring that there are processes for identifying and dealing with safety issues as they arise in a timely manner.
Undertaking these steps in compliance with your duties will assist to look after your workers' well- being and ensure you and your business donâ€™t end up before the courts.
WHO GOES THERE? RIGHT OF ENTRY REFUSAL PENALISED The Full Federal Court of Australia (FCA) has found one of Queensland's top high-rise developers contravened the Fair Work Act 2009 by refusing to allow union officials access to a construction site.
Ms Susan Menso, sole director of Z Group Pty Ltd, refused entry to two CFMEU officials who allegedly suspected scaffold-related contraventions after a tip-off on the CFMEU Facebook page. After a long standoff, Ms Menso eventually allowed the officials to access the site. The CFMEU officials filed an application seeking declarations that Ms Menso's refusal of entry breached the Fair Work Act.
Judge Vasta, in the first instance, found that Ms Menso did not look at or listen to the officials, ignored a WHSQ inspector, and was not concerned with obeying the law. He also found that the union officials reasonably suspected a safety breach was occurring or had occurred at the site, and Ms Mensoâ€™s "appalling" conduct constituted three breaches of the Act. However, Judge Vasta dismissed the CFMEU's claim on the grounds that the notice of entry was not valid because it was missing the officials' middle names. Following an appeal, the Full Court overturned his findings and found that the technical error did not invalidate the right of entry, and ultimately held that Ms Menso was in breach of her legal obligations before she saw the notice, as a result of refusing the union officials entry onto the site.
The matter has been remitted to Judge Vasta in the Federal Circuit Court to determine penalties. In the original decision, he indicated that Ms Menso's behaviour warranted fines totalling $18,500 had the officials held a valid entry permit, potentially indicating that this amount may ultimately be imposed on Ms Menso.
What it means for you
In terms of WHS laws, occupiers of building sites are obliged to allow union officials onto their sites where the union officials have a reasonable suspicion of safety contraventions, hold the relevant permits, and otherwise comply with the requirement to provide a valid notice.
If you operate or control a building site, it is a good practice to have clear right of entry protocols and ensure that your employees and officers are familiar with them and the requirements for right of entry. When a union official seeks to exercise a right of entry to a worksite, you can:
â–º request to see the entry permit;
â–º request to see a copy of the entry notice or exemption certificate;
â–º require the official to comply with WHS requirements;
â–º agree with the official the rooms or areas where interviews or discussions are to be conducted; and
â–º require the official to take a certain route to the room or area to hold discussions.
As highlighted in this case, you cannot:
â–º deny a request for production of or access to a document or record relevant to a suspected contravention of the Fair Work Act or an industrial instrument;
â–º refuse or unduly delay a lawful right of entry; or
â–º intentionally hinder or obstruct an official exercising lawful right of entry.
Breaches of the law as seen in this case may lead to civil penalties applied to you personally.
Ramsay v Menso  FCAFC 55
INTRODUCTION OF AN APPROVED FORM FOR WHS NOTICE OF ENTRY In other right of entry news, the ACT has introduced an approved form under the Work Health and Safety Act 2011 (ACT) to be used where a permit holder seeks entry to a workplace for the purpose of:
â€¢ inquiring into suspected contraventions (section 117 of the WHS Act);
â€¢ inspecting employee records or information held by another person directly relevant to a suspected contravention (section 120 of the WHS Act); and
â€¢ consulting and advising workers on WHS matters (section 121 of the WHS Act).
The "Notice of Entry by WHS Entry Permit Holder" was notified on 24 May 2018 and a copy of the form may be found at www.legislation.act.gov.au.
What it means for you
If a union official or other permit holder attends the workplace and seeks entry under the WHS Act, the relevant person conducting a business or undertaking or the person with management or control of the workplace ought to check to see that the person has a completed and signed copy of the Notice in the correct form.
If you are unsure, or if you are unsure about your right of entry rights and obligations generally, we recommend that you seek advice as soon as possible.
DRUNK BOSS WHISTLE-BLOWN OVER THE LIMIT A worker who reported her boss for drink driving a work vehicle has won her unfair dismissal claim and has been awarded 11 weeks' pay in the FWC.
Ms Bond had alerted her employer's franchisor, Andersens, that her boss was driving a work van while inebriated. Andersens alerted the police who apprehended the franchise store owner, resulting in the loss of his licence. Ms Bond also sent a photo of her boss sleeping in the
work kitchen area and informed the Andersens' CEO that he was drunk, which made her feel unsafe and uncomfortable. The Andersens' CEO attended the store and terminated the franchise agreement. Ms Bond was then summarily dismissed by her employer, the franchisee.
The employer argued that Ms Bond was dismissed because she discussed the franchisor's decision to close the store to a contractor, that she should have brought her concerns up with management first, and that she had damaged its reputation.
Ms Bond argued that she was acting as a whistleblower in accordance with the whistleblowing policy, which required her to report any actions that may endanger the health and safety of a person. FWC agreed, stating that Ms Bond was well within her rights to contact Andersens to report her safety concerns. It found that she prevented her drunk boss from putting himself and other road users at risk and that it was unreasonable to expect Ms Bond to report to management who was directly involved in the behaviour.
What it means for you
In general, businesses should encourage their employees to come forward with concerns they have about issues and conduct in the workplace. Indeed this is a key aspect of meeting obligations under work health and safety laws.
Nevertheless, businesses should handle the issue of whistleblowers with care and consider establishing policies and procedures to deal with employee disclosures. You could also consider establishing avenues for employees to come forward without fear of ramifications.
Employers should also take care when considering taking action against whistleblowers when disclosures positively require disciplinary action (ie. if it is frivolous or is a lie). While Australia does not have a codified system of whistleblower laws, employees may still have actions under the Fair Work Act 2009, the WHS laws, the Corporations Act 2001, and others.
Amendments have been proposed to the Federal Government to enhance the protection of whistleblowers, and provide a clear avenue for a whistleblower to escalate concerns, so now is a good time for businesses to consider how they manage whistleblowers' concerns.
In terms of franchisors, you have obligations as a person conducting a business or undertaking (PCBU) under the WHS laws. The extent that these obligations apply to individual franchisees will depend on the circumstances, including franchise arrangements, and the level of control on franchise operations.
For franchisors it may be appropriate to satisfy your WHS duties by placing reliance on the franchisee after having completed proper due diligence about their ability to comply with WHS obligations. However, contractual terms should allow franchisors to retain the ability to take appropriate action if franchisees fail to comply with their obligations, or take other action that threatens the reputation of your brand.
In this case, the franchise took direct action to deal with a franchisee whose conduct was grossly inappropriate. To ensure your business is in a position to take decisive action, consider doing the following:
â–º review current policies, procedures and consultation processes ensuring that WHS compliance is clearly communicated throughout the franchise;
â–º ensure officers are aware of their WHS duties and are prepared to take steps to address issues as they arise;
â–º review contractual terms with franchisees to determine potential areas of exposure if WHS risks are identified; and
â–º ensure franchisees have the knowledge and resources available to comply with their WHS duties.
Franchisors who do not take appropriate action in relation to the behaviour of their franchisees risk being found as an accessory to breaches, or being prosecuted in their own right for failing to comply with their obligations.
Bond v Wynbob Pty Ltd  FWC 1337
EMPLOYER LIABLE FOR VIOLENT WORKER An employer has been ordered to pay significant damages for negligently failing to relocate a violent worker with anger management issues who attacked a colleague in the workplace.
In January 2014, Jamie Colwell, a food processing plant butcher, was attacked by a co- worker on his way to report a verbal altercation with the co-worker. Mr Colwell was injured from punches to the head and face and sustained PTSD. He sued his employer Top Cut Foods for negligently failing to relocate him away from his co-worker.
The Court heard that the co-worker deliberately presented himself as an intimidating person and had a violent history. Mr Colwell had previously raised concerns about the co-worker's behaviour and emotional instability, stating that he was concerned for his own safety. In fact, the co- worker himself had stated that he was "close to losing it" and had requested the business move him away from Mr Colwell.
The Court rejected the employer's claim that it was not sufficiently on notice of the danger to Mr Colwell. It found that there was sufficient information available to the employer for the assault to have been reasonably foreseeable.
The Court awarded Mr Colwell damages in the amount of $584,995 for past and future economic loss.
What it means for you
Employees who commit violence in the workplace are liable to be charged under the criminal law. It goes without saying that the perpetrators can expect heavy fines and jail sentences as a result of their conduct.
The involvement of the criminal justice system does not get the employer off the hook however. By law, employers are required to ensure the health and safety of their workers and to provide safe workplaces. This extends to ensuring that workers are safe from harm from other workers.
Where an employer is aware of potential violence in the workplace it should take immediate action to identify the risk and to eliminate or reduce the risk to its workers. This might include:
â–º separating the employees;
â–º offering mediation (this is only appropriate if there is no risk of physical or mental harm);
â–º investigating the circumstances of the allegations;
â–º seeking assistance from EAP or other health professionals;
â–º standing down employees on pay;
â–º dismissing the employee; or
â–º calling the police.
Of course, businesses should have policies and procedures regarding appropriate workplace conduct. However, where actual threats are identified employers should take them very seriously and take more direct measures without delay.
Depending on the jurisdiction, employers who fail in this task could be liable under WHS, personal injury, workers compensation and anti- discrimination laws.
Colwell v Top Cut Foods Pty Ltd ACN 010 650 281  QDC 119
INDUSTRIAL ISSUES 2018-2019 STATE BUDGET PROMOTES WASTE-TO- ENERGY PROJECTS IN QUEENSLAND As announced in the 2018-2019 Budget, the Queensland Government has committed $100 million from its new waste levy towards developing and fostering waste-to-energy projects in the State as part of its Resource Recovery Industry Development Program.
A new waste strategy
The Queensland Government proposes to implement an improved waste management and resource recovery framework including:
â–º a ban on the supply of single-use lightweight plastic shopping bags from 1 July 2018;
â–º a Container Deposit Scheme from 1 November 2018;
â–º the (re)introduction of the waste levy; and
â–º the promotion of waste-to-energy projects.
The waste levy
From 1 January next year, general waste dumped in landfill will be levied at $70 per tonne, increasing by $5 increments to $90 by 2023. The levy rate will vary according to the type of waste, and broadly aligns with the Victorian and South Australian levies, as well as the decision of most Australian jurisdictions to impose a waste levy.
The levy is designed to provide an economic disincentive to waste disposal by reflecting external environmental costs of waste disposal and making waste avoidance, reduction and recycling more financially attractive than disposal to landfill.
Over the next three years, surplus revenue from Queensland's waste levy will be distributed in
grants of up to $5 million to local governments and private companies undertaking waste-to- energy projects.
According to the Government, these grants will aim to bolster the State's resource recovery sector by:
â–º encouraging the construction of new facilities, infrastructure and machinery; and
â–º supporting advanced feasibility studies for innovative resource recovery and waste management projects.
The "Never waste a crisis" Report
Like Queensland, the Commonwealth Government has also expressed an aspiration to transition away from a linear economy to a circular economy. On 26 June 2018, the final report, "Never waste a crisis: the waste and recycling industry in Australia," was handed down, specifically recommending that the Government prioritise the establishment of a circular economy. The inquiry focused on "'issues related to landfill, markets for recycled waste and the role of the Australian Government in providing a coherent approach to the management of solid waste".
What it means for you
As the levy's commencement date is fast approaching, interstate companies that have been dumping their waste in Queensland will need to begin rethinking the way they deal with their waste.
Any other local governments or private companies planning to undertake waste-to- energy projects in Queensland in the next three years and wanting to utilise the funding under the Program should seriously consider their options soon.
For more information, see our Insights article.
EYES NOT JUST ON THE ROAD â€“ FWC APPROVES DRIVER MONITORING SYSTEM In a case from June 2018, the FWC held that Toll Transport Pty Ltd has the right to implement an infrared driver fatigue / distraction monitoring system, and an upgraded video recorder in its vehicles (with both an inward and outward facing camera monitoring system) to record footage of its drivers and the road.
Toll argued that installing these monitoring systems would allow it to comply with its obligations under applicable health and safety legislation to take all reasonable steps to ensure a safe system of work. However, the Transport Workersâ€™ Union of Australia objected on the basis of a number of safety and privacy concerns, including that it would be a distraction and the effectiveness of the system was not clear.
The FWC agreed with Toll. In relation to the concerns, FWC indicated that the system was safe, including: during prolonged night driving, standard operating procedures provided for the proper handling of the footage; its misuse was subject to disciplinary action; and drivers had sufficient means to protect their privacy while on breaks.
On balance, FWC found the factors weighed in favour of Toll having the right to implement further monitoring systems.
What it means for you
Compliance with work health and safety duties is an area of high risk for businesses generally. There are significant costs and penalties to businesses and their officers personally if these duties are not met. A PCBU should always try to eliminate any health and safety risks in the workplace.
However, implementing necessary health and safety measures may not always be welcomed by employees, and can create tension between improvement systems and an employee's privacy and individual rights, especially when those measures are perceived as imposing excessive burdens on employees, or raise safety and privacy concerns as in this case.
It is important for PCBUs to engage with their employees to assist them to understand the need for implementing health and safety measures and the risks that you are seeking to address. You will also need to gather sufficient evidence to prove the safety of their measures and consider whether they unreasonably intrude on employees' privacy.
If the changes are reasonable to address an identified risk, they are much more likely to be upheld if they are challenged.
Toll Transport Pty Ltd T/A Toll Shipping v Transport Workers' Union of Australia  FWC 3573 (20 June 2018)
DRUG AND ALCOHOL POLICIES APPLY TO LIT EMPLOYEE ON LIGHT DUTIES The FWC upheld the dismissal of a truck driver employed by Toll Transport Pty Ltd T/A Toll after a random drug test showed that he had ten times the permissible amount of methamphetamines in his system while at work.
At the time of his dismissal, the employee was engaged at a high traffic and high-risk facility but undertaking light duties (data entry) while recovering from a shoulder injury that prevented him driving a truck.
Toll had a drug and alcohol policy which prohibited employees being under the influence of illicit drugs on a Toll site and allowed for the termination of employment in the event of a breach. The employee was clearly aware of Toll's drug and alcohol policy.
Toll submitted that it had an obligation both to have a robust drug and alcohol policy, and to enforce that policy. Toll further submitted that its health and safety obligations meant it was required to ensure its truck drivers did not create a risk to other employees, road users or the community. The FWC stated that Toll rightly took its obligation to the health and safety of its employees and other road users seriously.
The employee argued that an error in the testing of his saliva sample meant that Toll did not have a valid reason to terminate his employment. While the FWC noted a procedural error in the testing process, this was not enough to mitigate the employee's clear breach of the drug and alcohol policy.
The FWC also held that the employee's shoulder injury and need to undertake light duties did not alter the obligations to comply with Toll's policies.
What it means for you
This decision reinforces the need for employees to have up-to-date policies on drugs and alcohol to clearly set out the health and safety expectation of employees, and to allow employers to rely on their policies to dismiss employees in breach of their policies.
In order to have effective policies and procedures, employers must:
â–º clearly outline the prohibited behaviour and the consequences of a breach of the policy (ie. disciplinary action, including termination of employment);
â–º ensure employees are aware of the policies by way of regular training and refresher training; and
â–º consistently enforce the policy equally amongst employees.
The need for robust drug and alcohol policies and enforcement is particularly evident in high- risk workplaces, and is expected by courts or tribunals in order for the employer to discharge their work health and safety duties.
Paul Mallia v Toll Transport Pty Ltd T/A Toll  FWC 1713
TWO PCBUS FINED AFTER TRANSLATION FAILURE A 22 year old student from Hong Kong working in Australia as a night cleaner at a meat processing facility was seriously injured in a case that demonstrates the importance of tailoring WHS measures to your workforce, and the interaction of duties when labour is brought in through labour hire arrangements.
The labour hire worker was employed by Mondex Group Pty Ltd, a labour-hire company that supplied a number of workers to the meat processing facility operated by EC Throsby Pty Ltd (ECT).
The worker was required to clean a meat mincer. He had been trained in the procedure to clean the mincer by ECTâ€™s cleaning supervisor and the cleaners were issued with basic work instructions for cleaning the mincer. However, the instructions were in English, not in the worker's native language, despite this being the usual ECT protocol.
ECT requested its plant supplier to modify the meat mincer so that that it could increase its production of mince. The plant was modified so that it continued to operate even when the lid was raised.
ECT did not consult with, or notify Mondex about the modification to the mincer. Mondex did not have a system to require ECT to tell it about modifications to machinery (including the mincer) that could have impacted the safety of Mondexâ€™s employees.
The cleaning supervisor advised the worker to keep his arms clear when cleaning the mincer, and to stop the meat mincer by using the emergency stop button so that he could clean the mixing bowl and the paddle. However, while the worker was cleaning the meat mincer with the lid open and the paddle rotating, his left arm came in contact with the rotating paddle, causing a laceration to his left hand and forearm, a severed tendon in his forearm and a compound fracture of his wrist.
Both ECT and Mondex pleaded guilty to failing to comply with their health and safety duties. ECT was fined $90,000 and Mondex was fined $15,000. Both companies were convicted and ordered to pay approximately $35,000 each for the prosecutor's costs.
What it means for you
It is a requirement for duty holders to consult, co- operate and co-ordinate with other duty holders on matters relating to the health and safety of affected persons. This decision makes it clear that the duty to consult applies to labour-hire companies and host employers.
Labour-hire companies must ensure that there is open communication with the host employer about proposed modification or changes to work health and safety procedures so that there can be consultation before any changes are put into effect.
This case also highlights that safety is not a one- size-fits-all exercise. Employers must consider the different needs of its employees, including age, level of literacy, level of English and any disabilities or impairments that may reduce a worker's understanding of the work health and safety policies and procedures.
Safe Work NSW v EC Throsby Pty Ltd; Safe Work v Mondex Group Pty Ltd  NSWDC 102
HAZARD REDUCTION QUEENSLAND'S FINANCIAL ASSURANCE REFORMS DELAYED, DISCUSSION PAPERS RELEASED In our last edition, we outlined the new financial provisioning scheme under the Mineral and Energy Resources (Financial Provisioning) Bill 2018, which was expected to commence on 1 July 2018.
The Bill was not debated in May, and the financial provisioning aspects of the Bill are now expected to commence late this year.
The rehabilitation reforms (Progressive Rehabilitation and Closure Plan requirements) are still expected to commence in early 2019.
In the meantime, the Government has released two discussion papers, "Achieving improved rehabilitation for Queensland". The first addresses the Stateâ€™s abandoned mines legacy and the second sets out other risks and proposed solutions.
The first suggests the current classification system for abandoned mines in the state be overhauled. The second suggests businesses intending to buy mining companies should have their environmental and financial credentials verified before the purchase proceeds. The purchase of mining companies would be defined as a "dealing" under the Mineral and Energy (Common Provisions) Act, allowing the Government to initiate the vetting process.
The paper also proposes giving the Government powers to re-sell a mine owned by an insolvent company if the liquidator has claimed responsibility for it. Further, the paper recommends new "care and maintenance" disclosure requirements to ensure mining companies don't use "care and maintenance" arrangements to avoid end-of-life remediation obligations.
Comments for both papers closed on 16 July 2018.
SITE OWNERS MUST DIG BENEATH THE SURFACE The Victorian Supreme Court has affirmed that site owners can be ordered to guarantee that contamination does not pose a risk on their site, even if they didn't cause the contamination, it had existed for decades, or was caused off-site.
The owner of the relevant site had partly developed the land by constructing free-standing living units. Contamination of the groundwater under the site was discovered when a potential buyer of the undeveloped portion of the land commissioned an environmental investigation.
The Environment Protection Authority Victoria issued the owner with a clean-up notice. The owner argued that the clean-up notice was unlawful, because it had not caused the pollution, and the contaminated groundwater did not form part of the premises as it was below the surface of the site.
The Court found that the clean-up notice was lawful â€“ it was not necessary to show that the owner had carried out the activities that caused the contamination. The Court also found that groundwater did form part of the premises, the definition of which encompassed subsurface land, and the owner occupied both the surface and subsurface of the site.
What it means for you
This case highlights the importance of a purchaser undertaking contamination searches during the due diligence process. Site owners should implement ongoing contamination risk management to meet their responsibility to guarantee against contamination risks.
Sale Elderly Citizens Village Inc v Environment Protection Authority Victoria  VSC 266
GUIDANCE ON PSYCHOLOGICAL INJURIES RELEASED In June, Safe Work Australia (SWA) released National Guidance on Work Related Psychological Health and Safety. The Guide, available on the SWA website, sets out a systematic approach for meeting your WHS duties under WHS laws and workers compensation jurisdictions across Australia.
The Guide sets out the systematic approach in three phases â€“ "preventing harm", "intervening early", and "supporting recovery" â€“ to methodically and comprehensively ensure your workersâ€™ psychological health and safety. These phases revolve around steps that consistently apply to WHS compliance generally, such as:
â–º ensuring there is good work design and safe systems of work;
â–º ensuring you are effectively controlling hazards and risks and monitoring and reviewing controls;
â–º ensuring your workers have the training, information and supervision to do their job safely and well;
â–º consulting with your workers and their health and safety representatives and consulting, co-operating and co-ordinating on any health and safety risks with all relevant people; and
â–º ensuring you, your leaders and management commit to WHS, including things required under WHS law and demonstrating due diligence.
The guide states that these actions will assist you ensure psychological health and safety risks and return to work is adequately managed. It also states that fostering a people-oriented organisational culture through supportive management can aid in the prevention, early identification and management of mental health conditions in the workplace.
What it means for you
Despite incidents of psychological injury increasing in the workplace, we are finding that businesses and employers are still grappling with
how to manage these risks and how to create happy and healthy places of work.
Dr Peta Miller, Special Adviser for SWA, said that â€œpoor psychological safety costs Australian organisations $6 billion per annum in lost productivity. This is primarily because psychological injuries typically require three times more time off work than other injuries. Additionally, workplaces with poor psychological working conditions accrue 43 per cent more sick days per month.â€
The SWA Guide is a useful tool to assist businesses to reduce risk of psychological injury in the workplace and to get the best out of their workers. As the Guide notes, using a thorough and systematic approach can have significant business benefits, including:
â–º decreasing business disruption and costs from work-related psychological injury;
â–º increasing worker motivation, engagement and job satisfaction to increase productivity, reduce absenteeism; and
â–º enhancing your reputation as an employer of choice.
In attempting to realise these benefits, businesses must avoid a one-size-fits-all approach. If you are unsure about what measures you should take to eliminate risks in your workplace, please seek advice.
NATIONAL INQUIRY INTO SEXUAL HARASSMENT In June, the Australia Sex Discrimination Commissioner announced an inquiry into sexual harassment in Australian Workplaces.
Commissioner Kate Jenkins said the global conversation about sexual harassment and the #MeToo movement has exposed the true prevalence of the problem and the harm it causes to individuals, workplaces and society.
The terms of reference of the inquiry are:
(a) national survey of the prevalence, nature and reporting of sexual harassment in Australian workplaces, by sector;
(b) online workplace-related sexual and sex-based harassment and the use of technology and social media to perpetrate workplace-related sexual and sex-based harassment;
(c) the underlying factors leading to workplace sexual harassment, including whether:
i. some individuals are more likely to experience sexual harassment due to personal or cultural characteristics; and
ii. some workplace characteristics and practices are more likely to increase the risk of sexual harassment;
(d) the current legal framework with respect to sexual harassment;
(e) existing measures and good practice being undertaken by employers in preventing and responding to workplace sexual harassment; and
(f) the individual, business and economic impact of sexual harassment in the workplace.
As yet, there is limited detail available on the timeframes, including for the submission and consultation processes, and locations of the public consultations. However, we are aware that the Commission will be taking submissions until early 2019.
What it means for you
Businesses should already be taking steps to limit the risk of sexual harassment and inappropriate culture in the workplace. The benefits of a happy and productive workforce are well established. But the recent developments associated with #MeToo and highly public instances of sexual harassment show the damage that individuals and businesses endure in terms of mental health, family life, economic impacts and reputation when inappropriate conduct is condoned.
The national review will shine a light on the instances of sexual harassment in the Australian workplaces and is likely to give renewed life to this serious conversation. Businesses can also expect some form of regulatory response as the details of this inquiry emerge.
WORKERSâ€™ COMPENSATION COAL INDUSTRY AMENDMENT ACT 2018 (NSW) COMMENCES On 1 July 2018, legislation commenced in New South Wales to require all employers whose employees work in or about a coal mine to obtain workers' compensation insurance from an approved workers' compensation company.
Previously, only employers directly engaged in the coal industry were required to obtain workers' compensation insurance from an approved workers' compensation company, not the employers who are engaged in another industry and merely provide services to the coal industry. This interpretation was determined by the NSW Supreme Court in Kuypers v Ashton Coal Operation Pty Ltd  NSWSC 1276, despite the original intention of the Coal Industry Act 2001 (NSW) to protect all coal industry workers. The Bill addresses this precedent and clarifies the broad scope of the provisions.
Minister Don Harwin summarised the proposed amendments in his second reading speech to the NSW Legislative Council and noted that:
"Given that the mining industry is increasingly moving towards a flexible contract workforce it is crucial that mine workers are afforded the same level of health and safety protectionâ€¦ This amendment will directly address the interpretation issue raised by the Court and ensure the legislation operates as originally understood and intended."
What it means for you
Any employer of employees who work in or about a coal mine must now obtain workers' compensation insurance from an approved
workers' compensation company in order to maintain compliance with this amended legislation.
The amendments have changed the previously accepted scope of the obligation to obtain workers' compensation insurance. As such, you may be unsure about whether you now must comply with the new requirements, particularly labour hire companies. If this is the case, we recommend that you seek advice to clarify the nature of your business for the purpose of these new obligations.
GIVE IT TO ME STRAIGHT â€“ FAIR WORK COMMISSION PROVIDES SECOND OPINION ON MEDICAL EVIDENCE Recent decisions from the FWC have clarified the reliance and consideration employers can give to of medical evidence when determining whether an employee is able to perform the inherent requirements of their position.
In CSL Ltd T/A CSL Behring v Papaioannou  FWCFB 1005, the Full Bench of the FWC clarified how it will treat conflicting medical evidence in cases of dismissal for inability to perform the inherent requirements of the position.
The employer appealed a FWC decision that ordered reinstatement of an employee whose dismissal was harsh. The employee had been absent from work for a period of 38 weeks and was in receipt of "salary continuance" pursuant to the terms of its enterprise agreement when CSL terminated his employment on the basis that he had no capacity to perform his duties.
In support of its decision to terminate, CSL relied on the evidence of an independent medical examination it requested. The medical practitioner concluded it was unlikely that the employee would be fit to return to work within 12
months. However, another medical assessment by the employeeâ€™s long-term treating psychiatrist estimated a six-month recovery. On this basis, the employee contended there was no valid reason for the dismissal.
In reaching this decision, the FWC determined that the approach to considering conflicting medical evidence taken in Jetstar Airways Pty Ltd v Neeteson-Lemkes  FWCFB 9075 was correct and the decision of Lion Dairy and Drinks Milk Ltd v Norman  FWCFB 4218 was incorrect.
In accordance with the Jetstar case, the Commission is required to make findings about capacity by considering the medical evidence relied on by the employer, as well as other evidence before it. The Full Bench accordingly overturned the primary decision and the matter has been remitted for rehearing.
Following the CSL decision, the decision of Hyde v Serco Australia Pty Ltd  FWC 2465, the FWC has also clarified that the analysis to be undertaken set down in CSL does not apply to medical evidence created after the employee's dismissal and the FWC only has to consider conflicting medical evidence in existence at the time the dismissal decision was made.
What it means for you
FWC will not take an employerâ€™s decision at face value, but will independently consider a range of medical evidence and come to its own conclusion about an employeeâ€™s capacity at the time of dismissal.
Employers must therefore carefully balance all medical evidence in relation to an employee's capacity for the foreseeable future. If evidence from an assessment by the employer's doctor is to be preferred and relied upon over evidence from the employee's treating doctor, there needs to be a clear defensible basis to do so.
In particular, if there are numerous medical assessments with different results, employers will need to resolve the conflict between them to ensure that they have a strong rationale for dismissal, and that any medical evidence relied upon to justify a dismissal based on medical
incapacity clearly weighs in favour of that outcome.
When considering conflicting medical evidence, employers should consider the following questions:
â–º How recent are the medical assessments?
â–º What information was available to the medical practitioners?
â–º What are the qualifications and experience of the medical practitioners?
â–º Should the employee be assessed by a specialist medical practitioner?
â–º How well does the medical practitioner know the employee?
Given the complexities of these issues and the consequences if a dismissal is found to be unfair, employers should seek legal advice before dismissing an employee on medical grounds to ensure that their assessment of the employee's capacity to perform the inherent requirements of their role is defensible.
COMPLIANCE P&E APPEALS â€“ NEW ACT OR OLD ACT? Queensland's new Planning Act 2016, which commenced last year, includes transitional provisions dealing with matters (such as appeals and planning instruments) already existing or commenced under the old Sustainable Planning Act 2009 (SPA).
In the recent case of Jakel Pty Ltd v Brisbane City Council  QPEC 21, the Queensland P&E Court addressed a complex issue arising from these transitional provisions, for applications that had been assessed and decided under the SPA, but resulted in appeals to the P&E Court filed after the Planning Act commenced. The Court decided the Planning Actâ€™s regime will apply.
Jakel involved a development application (DA) lodged in late 2016, while the SPA was in force. Jakel's DA was refused by Council on 17 July 2017, after the Planning Act commenced. The appeal was filed on 10 August 2017 against the Council decision to refuse a DA for a multi-unit dwelling.
Deputy Chief Justice Kefford analysed the transitional provisions, their interaction with the decision rules, and other contextual matters, concluding that the legislative intent was that any appeal commenced after 3 July 2017 is to be heard and determined under the Planning Act, but primarily on the basis of the planning instruments in effect when the DA was made.
What it means for you
Where an appeal is commenced after 3 July 2017 for a DA made under the SPA, the Court will decide the appeal under the Planning Act assessment regime.
Under the SPA, there was a two-step approach of assessing for conflict with a planning scheme and considering whether there were sufficient
planning grounds to warrant approval. The Planning Act removed that test and requires a balanced assessment for compliance before reaching a decision.
The decision has practical implications for assessment managers processing DAs made under the SPA. Section 288 of the Planning Act says they're required to decide it under with the SPA, but in considering potential appeal risks, assessors should remember that, on appeal, the Court will apply the Planning Act regime.
Jakel Pty Ltd v Brisbane City Council  QPEC 21
AGRICULTURE UNDER THE SPOTLIGHT AS ITS INTERACTION WITH THE EPBC ACT IS REVIEWED A review of the interaction between the EPBC Act with the agriculture sector is considering options to reduce the regulatory burden on farmers, but could have implications for other industries as well.
The Australian Government has commissioned an independent review of the interaction of its primary environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), with the agriculture sector. Broadly speaking, its purposes are to review current regulatory settings and identify opportunities to reduce red tape.
A targeted consultation program with farmers, key industry stakeholders and environmental NGOs closed on Friday, 15 June 2018.
The Government's Briefing paper makes it clear that the review will not look at fisheries, forestry operations covered by a regional forestry agreements and coal seam gas development. Mining activities, particularly offsets from those activities, can be considered. However, changes or proposed amendments to State and Territory
vegetation management legislation will not be considered in this review.
What it means for you
The current review could provide real assistance for the agriculture industry, if some issues in the Briefing Paper and other issues within the scope of the Review's terms of reference are addressed. More broadly, the Review's recommendations could assist proponents of all kinds of activities.
In this sense, perhaps the Review offers an early indication of the Government's priorities for the full EPBC Act review next year.
For more information, see our Insights article.
MINISTER NOT FISHING AROUND, FEDERAL COURT CONCLUDES The Federal Court recently dismissed an application for judicial review of a referral decision under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The decision has important implications for what it says about the role of the Minister and how closely his/her directions can be scrutinised by the judiciary.
Tassal Operations Pty Ltd, an Australian salmon farming company (and the second respondent), wanted to convert the use of a marine lease to permit it to farm Atlantic salmon.
Drawing upon expert advice, the Department prepared a brief with recommendations for the Minister advising that there was:
â–º no direct threat to the Darlington Probation Station; but
â–º a real chance the proposed action would have significant impact on the Southern Right Whale and other migratory species, if the recommendations were ignored.
Ultimately, the Minister gave notice of his decision that Tassal's action was not a controlled action, provided it was undertaken in a particular manner as required by sections 77 and 77A of the EPBC Act. The Minister's imposed conditions
included that vessels be restricted to 5 knots within the lease area to reduce the risk of vessel strikes with whales and noise disturbance, and that operations be shut down if a whale was observed within 1 kilometre of any vessels.
The applicants in the Federal Court alleged that the Minister had failed to specify the particular means by which the action was carried out.
The court held that the Minister had not failed to comply with section 77A(1). Tassal's proposal from the outset had incorporated the use of particular technology and it had never sought to vary this proposal. Further, the Minister had not unilaterally varied the proposed action.
The court held these requirements were "inherent components" of the proposed action that did not need to be reiterated by the Minister, and said the Minister's reasons should be read as a whole.
The appellants also argued the Minister erred by failing to consider all adverse impacts on the National Heritage values of the Darlington Probation Station, as required by section 75(2). It was submitted that the only matter considered by the Minister was the potential visual impact of fish pens, and not other impacts such as noise pollution.
The court held it was not open to infer the Minister did not have regard to those features of Tassal's proposed action. It was emphasised that "the reasons of administrative decision-makers must be read without an eye too keenly attuned to the perception of error". No adverse impact on noise, visual or light pollution was established.
A denial of procedural fairness?
The last argument raised was that the appellants had been denied procedural fairness as neither the information supplied by Tassal nor the expert report was published on the Department's website, nor supplied to members of the public who had commented on Tassal's proposal. The court held that there was no procedural unfairness because the undisclosed material did not present a significantly different proposal.
What it means for you
The implications are that not all requirements considered "inherent components" of a proposal may be expressly stated in the Minister's decision. Those acting under an EPBC referral must be cautious to ensure they are aware of all requirements on them, whether stated in the Minister's decision or not.
Triabunna Investments Pty Ltd v Minister for the Environment and Energy  FCA 486
THE SKY ISN'T THE LIMIT, IF THE PLANNING SCHEME SAYS OTHERWISE The Queensland Court of Appeal recently allowed an application for leave to appeal a decision from the Planning and Environment Court for a development that did not comply with the Brisbane City Council Planning Scheme (Brisbane City Plan 2014).
The second respondent, Sunland Developments No 8 Pty Ltd, proposed to develop the old ABC site located at Toowong. The site had been abandoned for over 10 years. The proposal was to develop three residential towers. Two of the towers would be 24 storeys and one would be 27 storeys.
Sunland submitted the development application to the first respondent, Brisbane City Council. The application for approval required an impact assessment under the Sustainable Planning Act 2009 (Qld), so that it had to be assessed against the planning scheme. The applicant, Bell, wrote a submission against the development. When the Council approved the development, Bell having rights as a submitter, appealed the decision to the Planning and Environment Court, Brisbane.
Ultimately, the Planning and Environment Court found that, while the development did not comply with all provisions of the City Plan, there was sufficient public interest to approve the development.
On appeal, Bell maintained that the development did not comply with the planning scheme, because of the height of the buildings. This was argued on two grounds:
â–º that the development did not comply with the planning scheme; and
â–º there were not sufficient grounds for the Planning and Environment Court to approve the development.
The Planning Scheme
The proposed development fell within the Toowong-Auchenflower Neighbourhood Plan Code (TANP). The TANP provides criteria that need to be complied with for developments in this zone. For this site, the building height was restricted to a maximum of 15 storeys.
The P&E Court held the development did not comply with the height restrictions provided by the performance and acceptable outcome, but it may be that the development is warranted for complying with community and economic needs.
Drawing from various expert opinion, the P&E Court was satisfied that community and economic needs were met from the following:
â–º the site had been vacant and effectively derelict;
â–º there was substantial dis-benefit to the community it remained in its current state;
â–º economically insufficient to remain vacant until "perfect" development can be found;
â–º flow-on benefits from more vibrancy and activity; and
â–º city-wide prominence.
The Court of Appeal it was said this analysis was a wrong interpretation of the community and economic needs. Rather than considering whether there was a need of each kind (economic and community) for this development, it should have been considered if the need could be satisfied by a development of the same kind but of a scale and height which was consistent with community expectations and, in particular, complied with the 15 storeys maximum.
It was said that if the economic and community need is met, and this can be satisfied with a building of the height of 15 storeys, then this scenario shows that the building would satisfy the need.
Sufficient grounds to approve the development
It was necessary for the QCA to consider whether, if the development did not comply with the Brisbane City Plan, there were sufficient grounds under the SPA to approve the development based on the planning scheme conflict.
That provision will only be engaged where there is tension between the application of the relevant planning scheme and the public interest. Cases where this will be necessary are limited, as the planning scheme must be accepted as a comprehensive expression of what will constitute in the public interest.
The QCA said that any consideration of this provision must proceed upon the premise that it is in the public interest that the planning scheme, in each relevant aspect, is applied, unless the contrary is demonstrated. The public interest would be served by a height that accorded with community expectations, ie. building not exceed 15 storeys. This is not an arbitrary limit; it is an expression of a means by which, in the public interest, the scale of any development would be kept in alignment with community expectations. The scheme was unambiguous in that the building must comply with the height restrictions.
What it means for you
When considering development applications under planning schemes, if there are restrictions that provide a mandatory limit, these must be complied with, unless significant circumstances of public interest exist to show the contrary.
Bell v Brisbane City Council  QCA 84
ADDITIONAL OBLIGATIONS ON ACT PRINCIPAL CONTRACTORS On 15 August 2018, the Work Health and Safety Amendment Act 2018 (WHS Act) in relation to the regulation of health and safety representatives (HSRs) in the construction industry came into force. The WHS Act will apply to projects involving construction work over the value of $5 million ("major construction project")
but does not include construction work on single dwelling houses.
The WHS Act requires principal contractors of major construction projects to consult with unions before work starts on the number and composition of work groups to be represented by HSRs, and the number of HSRs to be elected for the project. The principal contractor must give each eligible union written notice regarding the project and its obligation to consult with the union.
Once works have commenced, the principal contractor must facilitate an election to elect one or more HSRs to represent project workers.
The maximum penalty for failing to comply with these requirements is $50,000 for a body corporate and $10,000 for an individual.
The WHS Act requires the PCBU to take all reasonable steps to commence negotiations with the workers for agreement for work groups and must facilitate the determination of one or more work groups of workers when work on the project starts.
While the harmonised WHS model legislation already requires consultation and collaboration between employers and workers and allows for the election of HSRs, the current regime relies on a worker requesting the election of HSRs, or an employer seeking to facilitate an election by their own initiative. The new regime will place the onus on principal contractors to facilitate the establishment of work groups and the election of HSRs.
The WHS Act commences on 1 January 2019.
What it means for you
Construction businesses that operate in the ACT should start thinking about how they will comply with the mandatory consultation requirements with unions prior to the commencement of major construction projects.
Where agreement is reached on the establishment of work groups and the number of HSRs to be elected, the principal contractor may be required to facilitate the election for the HSRs much earlier in the project than they currently are. These consultation and negotiation obligations should therefore be contemplated and factored into the planning of the project.
Businesses in other harmonised jurisdictions should keep up-to-date with any amendments to their State's WHS legislation as other jurisdictions may seek to introduce similar Bills.
NATIONAL HEAVY VEHICLE REGULATOR â€“ SPECIAL EDITORIAL
CHANGES TO CHAIN OF RESPONSIBILITY LAWS TO BOOST VEHICLE SAFETY For at least the last two decades people and businesses that make up the heavy vehicle supply chain have had specific legislative obligations, commonly referred to as the Chain of Responsibility, or CoR.
Changes to Chain of Responsibility laws for Australiaâ€™s heavy vehicle industry will begin on October 1.
The NHVRâ€™s Chain of Responsibility Manager Kym Farquharson-Jones has been travelling across Australia outlining the changes to many of the 165,000 businesses which make up the heavy vehicle supply chain.
â€œThese changes are a significant step forward in recognising that everyone in the heavy vehicle supply chain has a role to play in heavy vehicle safety,â€ Kym says. â€œHowever often the first step for a business is to understand what role it plays in the heavy vehicle supply chain.
â€œAny time a person or business sends or receives goods using a heavy vehicle with a gross vehicle mass of more than 4.5 tonnes they become part of the supply chain. Therefore they have a shared responsibility to ensure the safety of the activity.
â€œAmendments to the CoR laws coming in October will align the existing laws more closely with workplace health and safety provisions. This means that all parties in the chain must eliminate or reduce risks related to the safety of transport tasks.
â€œThis approach is similar to the general duties provisions under existing workplace health and safety laws. The changes to the law will make it clear that every party in the supply chain has an on-going duty to ensure safe practices.
â€œCurrently parties in the chain are usually held responsible only once a breach by a driver has been detected. Although the laws will change, they will still only apply to activities that a person or business has control over and could influence.
â€œIn other words no one will be liable for breaches they cannot control.
â€œIf you are doing everything that is reasonably practicable to identify, assess, reduce and wherever possible, remove safety risks related to your transport activities, you are likely to be complying with the changed law.â€
So what does this mean for businesses that make the heavy vehicle supply chain? Two of the most common questions the NHVR has received from the more than 100 information sessions conducted across Australia are about how to identify common breaches of CoR obligations and how a person or business can fulfil its safety duty.
What are some common breaches of CoR obligations?
CoR obligations can be breached in many ways. Some examples include applying business practices or demands that cause a driver to breach fatigue management requirements, or speed limits; failing to weigh, measure or secure loads; setting schedules with unrealistic timeframes; causing delays in loading and unloading; packing goods incorrectly; failing to consult or engage with other parties to ensure safe practices; and entering terms in contracts and arrangements that encourage, reward or give incentives to the driver or other parties in the supply chain to breach the law.
How do I fulfil my safety duty?
What you should do will depend on the level of safety risk and factors such as whether you own your own vehicle or contract the heavy vehicle services from a transport operator. If you currently have defined ways to make sure youâ€™re doing everything you can to manage the safety risks associated with your operations, then those same processes can be applied when the law changes. Some things you could do include acquiring knowledge of potential risks to your heavy vehicle transport task, taking steps to minimise or eliminate your heavy vehicle safety risks and monitoring heavy vehicle safety.
The NHVR encourages all businesses that make up the heavy vehicle supply chain to ensure they understand their responsibilities and take steps to address safety risks before October 1.
If you require more information visit www.nhvr.gov.au/cor
Resources available include information sheets outlining the specific roles and responsibilities of each party in the chain, podcasts and videos to help you understand your obligations, checklist for the tasks you undertake in your role and a Gap Assessment Tool so you can examine your business practices and systems controls against known risks and best practice.
The NHVR also encourages all parties in the heavy vehicle supply chain to adopt and utilise a Safety Management System as part of its everyday business in order to better identify and manage its day-to-day safety risks. For more information go to www.nhvr.gov.au/sms
This editorial has been kindly provided to Clayton Utz by the National Heavy Vehicle Regulator
REGULATOR NEWS NEW CODE OF CONDUCT FOR THE CARBON INDUSTRY Members of the carbon industry have joined forces to formulate a new non-prescribed and volunteer code of conduct that improves the standards for businesses that develop and/or advise on carbon offset projects.
The new code, developed with particular reference to the ACCC guidance on establishing a voluntary code and the Clean Energy Council's ACCC-authorised solar retailers code of conduct, was launched in Brisbane on 20 June 2018 by the Carbon Market Institute.
A shared vision
The code of conduct states that its goal is to achieve a well-functioning carbon industry that will "significantly contribute to Australia's greenhouse gas reduction commitments under the Paris Agreement." The objectives of the code include to define best practice for participants in the industry, to promote market integrity and accountability, and display international leadership in carbon project development.
Importantly, the code imposes higher levels of disclosure on its signatories in relation to dealings with potential clients. For example, signatories to the code must inform clients that there are different project development models for undertaking a Carbon Offsets Project. Signatories must discuss with the client his/ her preferred project development model, and provide information on the costs, benefits and risks over the project's lifecycle for that model.
The code also incorporates a new compliance procedure, effective from 1 July 2020. The procedure involves the Carbon Market Institute, the body which will investigate all reported
code breaches. In relation to disputes between carbon project developers and clients, a new independent panel will step in. The panel will be chaired by an individual with legal or governance expertise and include two other members, one representing the client and another representing the developer.
The panel will also have the responsibility of investigating "serious breaches" as well as any appeals made about decisions by the Institute. Once the panel has established that a serious breach has occurred, the breach will be published on the Code's website and, if not rectified, those responsible for the breach may be suspended or removed as a signatory to the code.
When does it commence?
The code will be implemented in a staged manner. The first stage, the "Foundation Stage," commenced 1 July 2018. The Foundation Stage will last for two years, and then transition into the "Operational Stage." At this point, an independent review and compliance audit on signatories will be undertaken.
What it means for you
Those planning on undertaking a Carbon Offsets Project should opt for someone who is a signatory to the new code of conduct because of its high levels of disclosure and stricter compliance procedure.
A regularly updated list of signatories to the code will be available online at the Carbon Market Institute's website.
SIGNIFICANT INCREASE IN PENALTIES FOR THREATENED SPECIES OFFENCES ON THE CARDS FOR TASMANIA In a move highlighting the current focus on enforcement of biodiversity protection laws, the Tasmanian Government is proposing significantly increased fines and possible prison terms for threatened species offences, bringing it more into line with laws in other Australian States.
On 3 May 2018, the Tasmanian Government introduced into Parliament a Bill to increase significantly the penalties for harming or interfering with threatened species under the Threatened Species Protection Act 1995 (TSP Act).
This reflects an increasing focus on the enforcement of biodiversity protection laws, and raises the risk profile for activities which could harm threatened species.
As a result, developers and others whose activities could affect threatened species should take extra care when considering the potential impacts of their activities.
What it means for you
Given the strict liability nature of the prohibitions in the TSP Act, and the scale of the increase in potential penalties, the stakes for contravening the threatened species protection requirements in the TSP Act would become much higher if the Bill is passed.
This will provide a significant added incentive to ensure compliance with the TSP Act.
It is a good time for developers and others whose activities could affect threatened species to review their risk profile, compliance systems and management measures, to ensure they have adequate safeguards in place for their current or proposed activities.
For more information, see our Insights article.
LABOUR HIRE LICENSING ACT 2018 NOW LAW IN VICTORIA On 26 June 2018, Victoria's Labour Hire Licensing Act 2018 received Royal Assent. Similarly to laws in Queensland and South Australia, the new Victorian law establishes a licensing scheme to regulate the provision of labour hire services. It seeks to protect labour hire workers from being underpaid and exploited by labour hire businesses and hosts who use labour hire workers.
Compliance obligations for labour hire providers and users, including those relating to licensing, are not expected to begin before early 2019. The commencement date for these obligations is still to be announced.
Key features of the Act include:
â–º providers of labour hire services in Victoria will be required to be licensed and users of labour hire services will be required to use only licensed providers;
â–º licence applicants will need to declare and demonstrate that the business and its key personnel are fit and proper persons and are compliant with workplace laws, labour hire industry laws and minimum accommodation standards;
â–º interested persons will be able to object to licence applications and request reviews into some licensing decision;
â–º applicants must have "nominated officers for the licence";
â–º annual report requirements; and
â–º substantial civil financial penalties will apply to providers operating without a licence, and to hosts engaging an unlicensed provider (penalties are 800 penalty units / $128,952 for a natural person and 3200 penalty units / $515,808 for a body corporate).
The licensing scheme will be administered by a Commissioner for Labour Hire Licensing, as head of an independent Labour Hire Licensing Authority. The Commissioner and the Authority will be responsible for licensing decisions, maintaining a register of licensees, investigations, compliance, education and development of a voluntary code for labour hire operators.
An inspectorate within the Authority will have broad powers to investigate non-compliance with the licensing scheme.
The Victorian Government has prepared, and released exposure draft regulations and a Regulatory Impact Statement, which are currently available for public consultation until 5 September 2018.
What it means for you
Consistent with the developments across the country to protect labour hire workers, these are important changes for businesses within Victoria and elsewhere.
Providers of labour hire services in Victoria should review their operations now to ensure they will meet the new requirements for a licence, and ensure that you have contingencies to assist to avoid breaching the provisions and facing substantial fines.
Businesses in Victoria that use labour hire workers should now create management protocols to protect themselves from prosecution under the new laws, including seeking assurances in contractual arrangements that businesses with whom you engage meet the licence requirements.
NEW AUSTRALIAN DANGEROUS GOODS CODE AND UPDATED BRAKE LAWS Following its semi-annual review, the Australian Dangerous Goods Code has been updated from version 7.5 to 7.6. The changes were effective from 1 July 2018 and will be compulsory from 1 July 2019.
The updated code features simplified regulation for the transport of lower-risk limited quantities of dangerous goods. Mobile processing units (MPUs) are also now exempted from the code to remove duplicate requirements in other laws, provided that the MPU is authorised for operation within each jurisdiction.
Additionally, the Federal Government has issued new Australian Design Rules that mandate electronic stability control (ESC) advanced
braking systems. The rules will be enforced for new heavy vehicle trailers in July 2019, and for new trucks and buses in November 2020. The changes are a result of an analysis that found they would reduce road fatalities by 126 lives and 1,101 serious injuries over a 35 year period.
What it means for you
The updated Code should ultimately be of benefit to organisations who are governed by it. These organisations should review the changes in detail and start taking advantage of the increased efficiency that they offer, and be ready for the changes to become compulsory in 2019.
Organisations looking to purchase heavy vehicle trailers or prescribed trucks and buses should ensure that they are aware of when the updated rules will mandate that ESC be fitted.
UPDATES TO MODEL CODES OF PRACTICE On 25 May 2018 Safe Work Australia published updates to 10 national model WHS Codes of Practice. The following Model Codes of Practice have been amended:
â–º Managing risks of hazardous chemicals in the workplace;
â–º Managing the risks of plant in the workplace;
â–º Construction work;
â–º How to manage work health and safety risks;
â–º Managing the work environment and facilities;
â–º Preparation of safety data sheets for hazardous chemicals;
â–º Work health and safety consultation, co- operation and co-ordination;
â–º First aid in the workplace;
â–º Welding processes; and
â–º Abrasive blasting.
Model Codes of Practice are practical guides to achieving the standards of health and safety required under the model WHS Act and Regulations. As Safe Work Australia has noted,
"an approved code of practice applies to anyone who has a duty of care in the circumstances described in the code. In most cases, following an approved code of practice would achieve compliance with the health and safety duties in a jurisdictionâ€™s WHS Act and Regulations."
However, in order to have legal effect in a jurisdiction, a Model Code of Practice must be approved as a code of practice in that jurisdiction.
What it means for you
Be aware that the Model Codes of Practice may shortly be approved as Codes of Practice in your jurisdiction. Make sure that your business is regularly checking to ensure that workers are complying with the most up to date Code of Practice for your industry and the work performed.
To determine if a Model Code of Practice has been approved in your jurisdiction, check with your work health and safety regulator.
Remember that codes of practice deal with particular issues and do not cover all hazards or risks that may arise. Organisations are required to take a risk-based approach to safety. While alerts and codes of practice set out best-practice approaches to reduce risk, you must still consult with your workers, health and safety representatives and sometimes external consultants to identify and appropriately manage risk in your organisation.
ON THE HORIZON COMMONWEALTH PFAS INQUIRY LAUNCHED BY FEDERAL PARLIAMENT The Federal Government has launched an inquiry to investigate PFAS contamination in and around Defence bases and the environmental and financial impact of this pollution. Per- and poly-fluoroalkyl substances (PFAS) are man-made chemicals that are found in household and industrial products and problematically are resistant to heat, oil, stains, grease and water.
The inquiry comes after the final PFAS Report was delivered by an expert health panel to the Australian Government in May which focused on the health impacts of PFAS contamination. The report concluded that there was no solid evidence to prove that exposure to PFAS substances increases the risk of cancer. However, the panel qualified its conclusion by stating that, the long- term "health effects for individuals exposed to PFAS cannot be ruled out based on the current evidence."
A newly-established PFAS sub-committee of Parliament's Joint Standing Committee on Foreign Affairs, Defence and Trade is undertaking the inquiry.
NORTHERN TERRITORY AMENDMENTS PROPOSED TO SUB-LEASE PROVISIONS ON PASTORAL PROPERTIES The Pastoral Land Legislation Amendment Bill 2017, introduced to the NT Parliament in October 2017, continues to be debated. Consultation remains ongoing between the NT Government and the Northern Land Council who represent a number of traditional owners and native title holders.
On 18 June the NT Government announced that:
â–º the proposed amendments contained in the Bill, other than those which relate to sub- leases for non-pastoral purposes, will progress
and be debated in the August Parliament sittings; and
â–º the proposed amendments which relate to sub- leases for non-pastoral purposes will be further discussed with key stakeholders, including the identification of possible models for granting non-pastoral use permissions on pastoral land that better recognise the rights of native title holders.
The Bill, minus the sub-leasing provisions, was passed on 16 August.
WHS MANSLAUGHTER CANVASSED IN NORTHERN TERRITORY A six month review by NT Worksafe is currently underway and will determine if a "gross negligence causing death" offence should be included in the Northern Territory's mirror WHS Act.
The scope of the review includes making a determination of the effectiveness of the existing NT Worksafe compliance regime and enforcement activities. The review will consider its evaluation of these enforcement aspects alongside an evaluation of current education and awareness protocols, to ensure that an appropriate balance is found.
Chaired by Former ACTU assistant secretary Tim Lyons, the reference group is comprised of three business representatives, three union delegates and two government nominees. It is likely that the findings will require stronger enforcement through a new offence, as Lyons made a similar finding in Queensland in 2017.
Additionally, the reference group is seeking submissions for their review, so any interested party should utilise this opportunity for their voice to be heard before the 31 August deadline.
NEW SOUTH WALES FORESTRY LEGISLATION AMENDMENT BILL The Forestry Legislation Amendment Bill 2018 has been introduced to amend the Local Land Services Act 2013 and the Forestry Act 2012 with respect to forestry. The proposed amendments will mean that Local Land Services will now have responsibility for regulating private native forestry, instead of the Environmental Protection Authority (EPA). The EPA will retain its enforcement role. The regulatory framework for public native forestry will also be updated, with the aim of streamlining existing regulations.
The Bill will also update the process for Integrated Forestry Operations Approvals (IFOAs). Key changes include requiring public consultation for making or amending IFOAs, and consolidating the licensing related to the impact of IFOAs on animal or plant species.
QUEENSLAND FUNDING PROMISED IN THE 2018-2019 BUDGET The Queensland 2018-2019 Budget (released 12 June 2018) promises funding for multiple environmental initiatives. These include:
â–º a $50 million grant for the development of a baseload solar thermal power station;
â–º $1.7 million towards decarbonising Great Barrier Reef islands through business cases for solar, wind and gas generation;
â–º extra funding of $5 million for waste-to-energy projects;
â–º extra funding of $5.6 million to develop the government's Climate Adaption Action Plan; and
â–º extra funding of $4.4 million to support the state's Gas Action Plan.
COMMITTEE REPORT RECOMMENDS MINING AMENDMENTS In May 2018, the Queensland Government Education, Employment and Small Business Committee recommended that the Mines Legislation (Resources Safety) Amendment Bill 2018 be passed by the State Parliament subject to amendments related to the contractor definition and that site senior executives receive confidential notice of reportable diseases.
The Bill will make a number of important changes to the Coal Mining Safety and Health Act 1999 (CMSHA) and the Mining and Quarrying Safety and Health Act 1999 (MQSHA). This Bill mirrors legislation previously introduced in 2017, which lapsed due to the Queensland state election. Fifteen areas will be addressed by amendments, including in relation to:
â–º Ventilation officer competencies;
â–º Inspector powers and workplace entry;
â–º manufacturer, supplier, designer and importer notification requirements;
â–º contractor and service provider management;
â–º safety and health management system (SHMS) requirements;
â–º health surveillance;
â–º notification of diseases; and
â–º officer obligations.
The Report states that the Bill also proposes to increase penalties via amendments to the CMSHA and the MQSHA to make them consistent with the WHS Act, and to introduce civil penalties to be imposed on mining companies who fail to meet their safety and health obligations.
The definition of "contractor" has been recommended to provide clarity to amendments intended to improve contractor and service provider safety and health at mines requiring contractors and service providers to provide their safety and health management information to be considered as part of a single, integrated SHMS for all mine workers.
SOUTH AUSTRALIA NEW PLANNING AND DESIGN CODE FOR SA The South Australian Government has released a second discussion paper, "The Planning and Design Code: How will it work". The paper provides information on the technicalities and functional framework of the proposed new code, which will operate as a single and consolidated publication of the State's planning and design rules. The new code, as well as the related new ePlanning portal, should roll out in 2020.
LEGISLATION FOR FRACKING MORATORIUM AND PROHIBITION ON UNDERGROUND COAL GASIFICATION OPERATIONS IN SOUTH AUSTRALIA There is a new push to legislate the 10-year moratorium policy on hydraulic fracking in South Australia announced earlier this year, and to prohibit underground coal gasification operations.
SA Greens Parliamentary Leader Mark Parnell MLC introduced two private member bills to the South Australia Parliament on 6 June 2018. The bills seek to amend the Petroleum and Geothermal Energy Act 2000 by proposing a 10- year moratorium on hydraulic fracturing (fracking) for coal seam gas (CSG) in the State's South East and to prohibit underground coal gasification operations across the entire State.
While it is not likely that the bills will pass as they are private member bills, their introduction increases the focus on CSG and gasification in South Australia.
This Bill is identical to a bill that Mr Parnell introduced to Parliament on 30 November 2016 which subsequently failed in October 2017.
For more information, see our Insights article.
VICTORIA DRAFT ENVIRONMENT PROTECTION AMENDMENT BILL The Victorian Government has introduced its Environment Protection Amendment Bill 2018 to Parliament, which will repeal the Environment Protection Act 1970 (Vic) and replace it with a new legislative framework.
The central reform under the Bill is the establishment of a general environmental duty, which requires those undertaking activities that may result in harm to human health or the environment to take reasonably practicable steps to minimise risks. Under this proposed reform, a person who breaches the general duty in the course of a business or undertaking will be liable to a penalty of 2000 penalty units for a natural person ($322,380), or 10,000 penalty units ($1,611,900) for a body corporate.
The Bill also provides for changes to the current regulatory framework governing Environment Protection Authority approvals and licences, creating a range of permissions (licences, registrations and permits) which apply to prescribed "activities" (as opposed to "premises" under the current regime).
Reforms aimed at achieving the same outcomes in respect of the environmental audit process are also in the Bill.
The Bill introduces changes to the regulation of waste disposal, including a range of duties that apply to those who generate, produce, deposit, receive or transport industrial waste. As with the general duty, these duties are both civil penalty and offence provisions. More stringent duties and controls will also apply to prescribed classes of "priority waste".
A further duty introduced by the Bill requires the Environment Protection Authority to be notified when pollution incidents occur, and a duty to respond to harm caused by a pollution incident when it occurs.
The Bill also provides for a range of regulatory notices which include improvement, prohibition, investigation, and environmental action notices, as well as site management orders. Importantly, the proposed notices to investigate, environmental action notices and site management orders may be served on a non- occupying owner of a premises.
What it means for you
The Bill would introduce a markedly different environment protection regime, which heavily focuses on prevention, as is highlighted by the introduction of:
â–º a general environmental duty requiring people engaging in activities that may give rise to risks of harm to human health or the environment from pollution or waste to understand those risks and take reasonably practicable steps to minimise them; and
â–º a new duty to notify the Environment Protection Authority when pollution incidents occur, and a duty to respond to harm caused by a pollution incident when it occurs.
It is also significant that the Bill would extend the categories of person that may be served with a regulatory notice, and noticeably captures non-occupying owners of a premises in some circumstances.
We recommend that businesses monitor the progress of the Bill as it progresses through Parliament. We will be providing further updates on its passage, as well as more detailed commentary on these significant reforms over the coming months.
ANDREWS LABOR GOVERNMENT PROMISES NEW WORKPLACE MANSLAUGHTER OFFENCE IF RE-ELECTED The Andrews Labor Government has committed to create a new workplace manslaughter criminal offence if re-elected in the 2018 State Election in Victoria. The proposed amendments to the Occupational Health and Safety Act 2004 would increase penalties for both employers and individuals responsible for negligently causing
death, either to an employee or a member of the public.
The proposed offence would result in employers facing maximum safety fines of 100,000 penalty units, or $15,857,000, and individuals who negligently cause a work-related death would risk 20 years' imprisonment.
These significantly increased penalties reflect Premier Daniel Andrews' rationale that the laws will "help make sure that every Victorian makes it home safe" and that "Families who have lost a loved one at work deserve justice â€“ and that means jail, not a slap on the wrist."
WESTERN AUSTRALIA DRAFT GUIDE TO LICENSING Western Australia's Department of Water and Environmental Regulation has relaunched the Industry Regulation Guide to Licensing.
According to the Department's website, the Guide provides information on the Departmentâ€™s licensing framework for applicants proposing to construct or undertake activities which are regulated by the Department under the Environmental Protection Act 1986. It also draws the attention of applicants to how applications for works approvals, licences, and registrations of prescribed premises are ultimately determined.
COMMONWEALTH â–º Fair Work Act 2009
QUEENSLAND â–º Mineral and Energy Resources (Financial Provisioning) Bill 2018
â–º Planning Act 2016
â–º Environment Protection and Biodiversity Conservation Act 1999
â–º Sustainable Planning Act 2009
â–º Coal Mining Safety and Health Act 1999
â–º Mining and Quarrying Safety and Health Act 1999
â–º Waste Reduction and Recycling Amendment Act 2017
â–º Planning Regulation 2017
AUSTRALIAN CAPITAL TERRITORY
â–º Work Health and Safety Act 2011 (ACT)
â–º Work Health and Safety Amendment Bill 2018
â–º Work Health And Safety Amendment Regulation 2018 (No 1)nd Development Amendment Act 2017
NEW SOUTH WALES â–º Protection of the Environment Operations Act 1997
â–º Forestry Legislation Amendment Bill 2018
â–º Local Land Services Act 2013
â–º Forestry Act 2012
â–º Coal Industry Amendment Act 2018
TASMANIA â–º Threatened Species Protection Act 1995
â–º Threatened Species Protection Amendment Bill 2018
SOUTH AUSTRALIA â–º Petroleum and Geothermal Energy (Moratorium on Hydraulic Fracturing) Amendment Bill 2018
â–º Petroleum and Geothermal Energy (Underground Coal Gasification) Amendment Bill 2018
VICTORIA â–º Environment Protection Act 1970
â–º Labour Hire Licensing Act 2018
â–º Environmental Protection Act 1986
â–º Environmental Protection Amendment Regulations (No.2) 2018
â–º Occupational Safety and Health Act 1984
â–º Environmental Protection (Plastic Bags) Regulations 2018
Saul Harben National Practice Group Leader â€” Workplace Relations, Employment & Safety Partner, Perth T +61 8 9426 8219 firstname.lastname@example.org
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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories. Â© Clayton Utz 2018
ENVIRONMENT & PLANNING