KEEPING YOU UPDATED ON KEY TRENDS AND YOUR DUE DILIGENCE OBLIGATIONS IN WORK HEALTH AND SAFETY / ENVIRONMENT
Q4 QUARTERLY UPDATE
INTRODUCTION OFFICERSâ€™ DUTIES AND LIABILITIES 4 INDUSTRIAL ISSUES 6 HAZARD REDUCTION 10 WORKERSâ€™ COMPENSATION 13 COMPLIANCE 15 REGULATOR NEWS 19 ON THE HORIZON 23 LEGISLATION 26 CONTACTS 27
INTRODUCTION With so much change in environmental and work health and safety regulation, itâ€™s easy to drown in a sea of paper when doing your due diligence.
CU Up to Date sorts through the last three months and gives you the most important trends and developments nationally â€” and explains how they will affect your business, now and in the future.
From officersâ€™ duties to hazard reduction, industrial relations to regulator news, weâ€™ll keep you Up to Date. And with our sights on the horizon, weâ€™ll help you see the challenges ahead.
Highlights in this issue include:
â–º The Queensland Government has introduced significant amendments to work health and safety laws to increase penalties and create an offence of industrial manslaughter;
â–º The Federal Parliament has passed laws to protect vulnerable workers that places the responsibility on franchisors and holding companies for breaches of the Fair Work Act by their franchisees or subsidiaries.
â–º The WA Government has proposed a range of significant amendments to align the State's work health and safety laws and to increase penalties prior to the main raft of amendments.
â–º The NSW Government has introduced amendments to pass development application approval powers to independent panels in an effort to improve accountability and transparency in the DA approval process.
If you want to know more about how these and other developments will affect you, please donâ€™t hesitate to contact us.
OFFICERSâ€™ DUTIES AND LIABILITIES IMPORTANT CHANGES TO QUEENSLAND WORK HEALTH AND SAFETY LAWS The Queensland Government has made significant changes to the Work Health and Safety Act 2011 that will have ramifications for all businesses and officers in Queensland.
The Work Health and Safety and Other Legislation Amendment Act 2017 makes a range of changes including introducing a new offence of industrial manslaughter. This will include both a â€œsenior officerâ€ offence and an â€œemployerâ€ offence where conduct negligently causes death of a worker. Penalties for the offence will be 20 years, imprisonment for individuals and a $10 million penalty for a body corporate. The law makes equivalent amendments to include industrial manslaughter offences in the Electrical Safety Act 2002 and the Safety in Recreational Water Activities Act 2011.
Another important change that could have broad impacts will be the requirement that safety measures in WHS codes of practice be followed unless a duty holder can demonstrate that it has better safety measures in place. Codes of practice will now be required to be reviewed every five years.
The laws also:
â–º prohibit enforceable undertakings being accepted for contraventions, or alleged contraventions, of the WHS Act that involve a fatality;
â–º enhance the role of health and safety representatives in the workplace, including mandatory training for new representatives within six months of being elected to the role, with refresher training to be undertaken at three-yearly intervals; and
â–º reintroduce the optional ability for a PCBU to
appoint a WHSO to provide advice on managing hazards and risks in the workplace.
These amendments are in response to the best- practice review of work health and safety laws that was conducted after the deaths in 2016 at Dreamworld and Eagle Farm race course.
The Minister Grace Grace stated that the changes, particularly the introduction of the offence of industrial manslaughter, will send a clear message about societal expectations of safety in the workplace and that workplace health and safety standards should be a No. 1 priority for senior officers whose decisions can have catastrophic impacts on the safety of workers.
What it means for you
These are significant changes and duty holders need to take care when considering how they will affect their business.
The laws will commence in stages but businesses should begin assessing their practices now to come to terms with the changes and to consider how to proceed.
RECENT ASIC REPORT HIGHLIGHTS THE IMPORTANCE OF CLIMATE RISK ASIC has released report 539 on Regulation of Corporate Finance, for the first half of 2017, recommending that companies and boards consider reporting on climate risk as part of their annual reports.
Under section 299A of the Corporations Act 2001 (Cth) companies and in particular, listed entities, must include information about their business strategies and prospects for future financial years. ASIC advises that environmental and other sustainability risks that may affect an entity's achievement of its financial performance ought to be discussed. They ought to be treated in a similar way to other risks, meaning that the extent of the disclosure should be related to the materiality of the risk.
What it means for you
The Report confirms that climate risk is now something that ASIC will consider in a company's disclosure obligations. All corporate entities ought to review their risk assessment and disclosure processes to ensure they include environmental risks.
VICTORIAN EMPLOYER AND DIRECTOR ORDERED TO PAY $880,000 A building industry employer and its director have pleaded guilty to breaching the Victorian Occupational Health and Safety Act 2004 and have been fined a total of $880,000, after a fatality in 2013 resulted from a floor collapse at a construction site.
The employer, which was engaged to perform carpentry work at an apartment complex, did not determine the load-bearing capacity of floor trusses before a 1.76 tonne load of flooring sheets was placed on them, causing the trusses to collapse. This resulted in the death of an apprentice, as well as causing injuries to other workers on site.
The company and its director were fined $700,000 and $180,000 respectively. The court heard that the building methods used by the company were a significant departure from acceptable safety standards.
Commenting on the prosecution WorkSafe Head of Hazardous Industries and Industry Practice, Michael Coffey, said that builders "have the responsibility to make your work site safe and to ensure construction is being done the right way. If you fail to do so, then not only do you risk the future of your business, but you will have to live forever with the fact that you were responsible for your workerâ€™s death or serious injury."
What it means for you
While specific to the building industry, this decision reinforces the importance of all duty holders having a clear understanding of accepted safety practices in their industry and how to implement them to reduce risks to health and safety in the workplace.
If necessary, when conducting work on a site, consider consulting experts in order to reduce risk. After this case, WorkSafe Victoria has emphasised that duty holders on construction sites should ensure that the load-bearing capacity of flooring is known to everyone on site. Where load bearing capacity is unknown or a support structure is damaged, a competent person such as a structural engineer should be consulted to determine load-bearing capacity.
INDUSTRIAL ISSUES 100% FIFO BAN NOW LAW IN QUEENSLAND On 31 August 2017, the Strong and Sustainable Resource Communities Act 2017 became law in Queensland. The legislation will have a major impact on workforce planning for mining projects in the State.
There are a number of significant amendments introduced in the legislation, including:
â–º requiring owners of large resource projects (100 or more employees) to prepare a social impact assessment for the projects, assessing the potential positive and negative social impacts of the project (eg. in relation to community and stakeholder engagement, local business and industry procurement, and health and community wellbeing);
â–º creating measures to encourage owners to employ people from nearby regional communities;
â–º requiring that the owner or principal operating contractor of a large resource project must provide equal opportunity of employment in the operation of the project, regardless of where the workers live; and
â–º ensuring that conditions to manage social impacts of resource projects are applied consistently under both the State Development and Public Works Organisation Act 1971 and the Environmental Protection Act 1994.
The effect of these changes will be to prevent the use of 100% FIFO workforces for the operation of future large resource projects located near regional communities (that have a population of more than 200 people within 100 km of the project).
The explanatory notes for the Bill state that the prohibition on 100% FIFO workforces will have limited impact as it does not preclude a high
percentage of FIFO workers being employed. Nevertheless, the Act amends discrimination legislation to create offences for discrimination against locals in recruitment for or termination of employment at large projects (a reverse onus of proof will apply).
What it means for you
These are significant changes that could have important consequences for the mining industry in Queensland.
The Act potentially goes to the heart of workforce management and planning for large mining projects. If you haven't done so already, now is the time to closely consider the new requirements and how you will manage the requirements into the future.
In light of the penalties that apply under the Act and the range of regulatory requirements, it is worth considering an audit of your operations to ensure compliance.
NT HYDRAULIC FRACTURING INQUIRY INTERIM REPORT RELEASED On 14 July 2017 the Independent Scientific Inquiry released its Interim Report on Hydraulic Fracturing of onshore unconventional reservoirs in the Northern Territory. The Report outlines its preliminary analysis of the risks and benefits of hydraulic fracturing in the Territory.
The Panel has considered the current regulatory framework for onshore unconventional gas development and agrees with submissions that it is deficient and needs to be strengthened to achieve the principles of ecologically sustainable development (ESD).
Some of the key items that the Panel will consider in order to determine what is necessary
for the NT regulatory framework to achieve ESD include the precautionary principle; minimum environmental standards; "no go zones" (eg. national parks and reserves) and rehabilitation bonds.
It is expected that the Panel will release its draft Final Report towards the end of the year and the Final Report will be handed down in March 2018, at which point the Government will look to make its decision to either ban fracking in the Northern Territory or allow it in highly regulated circumstances in tightly prescribed areas.
What it means for you
Interested parties may wish to make a submission to the inquiry, which can be made at any time.
WA GOVERNMENT BANS FRACKING IN SOUTH WEST, PEEL & PERTH METROPOLITAN REGIONS On 5 September 2017 the WA Government announced a ban on fracking in the South West, Peel and Perth metropolitan regions of WA. A moratorium has been placed on fracking throughout the rest of the State. The ban applies to both existing and future petroleum titles during the exploration and production stages.
During this time, an independent scientific inquiry into fracking will be led by Environmental Protection Authority chairperson, Dr Tom Hatton. The scope of the inquiry is to analyse the direct impacts of fracking on environmental and community factors. The inquiry will assess the level of risks associated with fracking and outline possible mitigating mechanisms. The inquiry is expected to commence in October.
What it means for you
Submissions to the inquiry are not yet open but input from experts and informed stakeholders will be encouraged.
QLD PASSES LABOUR HIRE LAWS On 7 September 2017, the Queensland Parliament passed the Labour Hire Licensing Act 2017. The Act establishes a mandatory labour hire licensing scheme, which will apply to all labour hire providers operating in Queensland regardless of where their registered address is located. Under the new laws, persons engaging labour hire providers must only engage a licensed provider. Further, labour hire businesses and their officers will be required to:
â–º pass a "fit and proper person" test to establish that they comply with all relevant laws and that the business is financially viable;
â–º comply with workplace laws, including workersâ€™ compensation, wages and superannuation;
â–º pay a licence fee;
â–º report regularly on their operations; and
â–º divulge a range of information including the number of employees they have engaged, how they are engaged, the type of work performed and where it is performed.
Licence fees will range from $1,000 to $5,000 depending on the size of the provider. The laws will also include high penalties for breaches and criminal offences for the most serious transgressions.
For the purposes of the "fit and proper person" test, regard will be had to a range of matters, including the applicant's character, compliance with relevant laws, and whether they have previously been insolvent or placed into administration, receivership, or liquidation.
The Act requires that applicants provide the details of one or more "Nominated Officers", who are responsible for the day-to-day carrying out of the labour hire business and, as noted above, must pass the "fit and proper person" test (if they are not the applicant). The Nominated Officer must also be reasonably available to be contacted by the chief executive or member of the public during business hours. The best practice review into the Work Health and Safety Act 2011 (Qld) made recommendations that labour hire regulation be linked to the WHS inspectorate through joint inspectors.
What it means for you
Labour hire operators in, or who operate in, Queensland should review their operations now to ensure they will meet the criteria in the new laws for a licence.
Businesses in Queensland 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.
Labour hirers and hirees should also review their WHS management systems and ensure they take into account the unique risks that arise from labour hire arrangements.
VULNERABLE WORKERS LAWS EXPOSE FRANCHISORS AND HOLDING COMPANIES Federal Parliament has passed the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 which amends the Fair Work Act to "prevent wages rorts by placing responsibility on franchisors and holding companies for breaches of the Act by their franchisees or subsidiaries".
The legislation also introduces a new "serious contravention" provision which increases tenfold the penalty units payable for breach of a civil remedy provision of the Act in cases where a serious contravention has occurred (up to $540,000 for a body corporate).
Under the new provisions, holding companies and franchisors will be liable for the breaches of their subsidiaries or franchisees where they (or one of their officers) knew, or should reasonably have known, that the contravention of the Act would occur or that a contravention of a similar nature would occur.
This represents a lower threshold than the prior accessorial liability provisions and would be more likely to capture companies that claim to be unaware of the misdeeds of their franchisees or downstream operators, but should reasonably have been aware of these.
A qualification of this responsibility for franchisors is that the franchisor must have a significant degree of influence or control over the franchisee's affairs. However, this qualification does not apply to holding companies.
Both holding companies and franchisors can discharge their responsibility by showing they have taken reasonable steps to prevent a contravention. What will be considered reasonable in each case will vary from organisation to organisation, taking into account the size and resources of the company, action taken to ensure reasonable knowledge of employment obligations, and whether the business structure encourages breaches of the Act.
Other changes under the laws include:
â–º strengthening limits on deductions of wages;
â–º amendments to record keeping requirements and the onus of proof in relation to record- keeping, and
â–º strengthening the powers of the Fair Work Ombudsman to require the production of documents and answering questions under oath.
What it means for you
These reforms mean more that ever it is not enough to say "I didn't know" and companies, and their officers, will need to be more vigilant in taking proactive steps to ensure compliance of entities in their businesses.
If you are a holding company or a franchisor these changes may affect you and you should consider what reasonable steps should be put in place in your organisation so that you can ensure you don't fall foul of the new increased penalty regime. Some simple steps can include:
â–º knowing your obligations and educating your staff/franchisees;
â–º addressing suspected or identified breaches in your wider group promptly, but with care. You will need to balance your visibility in addressing wrongdoing without assuming additional liability;
â–º ensure contracts cover any remedial action
required â€’ for example your ability to terminate if someone in the operation is doing the wrong thing;
â–º ensuring you have an appropriate paper trail documenting your compliance measures â€’ policies, complaint procedures and audits; and
â–º lastly, consider if there was an investigation how will you show the steps you've taken? What story will your documents tell?
HAZARD REDUCTION LABOUR HIRE COMPANY ORDERED TO INDEMNIFY OPERATOR FOR EMPLOYEE'S NEGLIGENCE Labour hire company Workpac Pty Ltd has been ordered to pay an injured truck driver nearly $1.7 million in compensation, as a result of a Workpac employee's negligence.
The incident occurred on a site operated by Hail Creek Coal Pty in August 2013, while the Workpac employee was loading iron ore onto the tray of a haul truck using an excavator. As a result of the Workpac employee's negligent actions when positioning the excavator and failing to signal the driver, the driver reversed into the excavator and sustained a serious back injury. The driver consequently sued both Hail Creek and Workpac.
The Queensland Supreme Court found that Hail Creek breached its non-delegable duty to take precautions against the foreseeable risk of injury, noting that it is immaterial that the employer is not personally at fault. Justice McMeekin also found that Hail Creek was in a better position to supervise and control operators, such as the negligent Workpac employee.
However despite these findings, Justice McMeekin ordered Workpac to indemnify Hail Creek, rejecting Workpac's argument that its employee had been "subsumed" into Hail Creek's system of work and control. Factors taken into consideration included Workpac having an office and supervisors on site to deal with human resources issues, as well as the labour hire contract which preserved Workpac's entitlement to control its workforce. Workpac did not satisfy the Court that the entire and absolute control over the employee had passed to Hail Creek.
What it means for you
The decision is significant for any business which relies on the use of labour hire arrangements to operate.
While employers operating a workplace have non-delegable duties in relation to safety, a court will still look to the surrounding factual circumstances and the express terms of the labour hire contract to determine who has control over an employee.
For labour hire companies like Workpac, it is important to consider whether what control over the employee has been transferred to the host employer. In particular, care must again be taken to ensure that employees in high-risk positions are receiving necessary training and understand their duties in relation to work health and safety at sites operated by client companies.
Paskins v Hail Creek Coal Pty Ltd  QSC 190
UPDATED LOCAL RAIL SAFETY RULES The Victorian Government has introduced changes to the regulations governing the safety of local rail operations in the State.
The Rail Safety (Local Operations) (Accreditation and Safety) Regulations 2017 and Rail Safety (Drug and Alcohol Controls) Regulations 2017 commenced on 21 July 2017, replacing the existing Rail Safety (Local Operations) Regulations 2006, and will remain in place for 12 months (ie. until 21 July 2018).
The Accreditation and Safety Regulations deal with a number of safety issues that apply to local rail operators, including:
â–º an obligation to ensure workers are fit to carry out rail safety work, the test for which is that
they are of "sufficient good health and fitness" (rail transport operators are required to have a health and fitness program in place to manage this);
â–º requirements to have a fatigue management plan in place;
â–º an obligation to ensure, as far as reasonably practicable, that a rail worker is competent to perform their duties. This includes conducting competency assessments;
â–º a duty to notify railway accidents or incidents to Transport Safety Victoria, immediately on becoming aware of the incident. Other safety issues (such as defects) must be notified within 72 hours; and
â–º the content of emergency and safety management systems.
The Drug and Alcohol Operations Regulations update the existing regime for drug and alcohol testing, including a new prescribed list of breath testing devices and replacing the existing urine testing regime with procedures for oral fluid analysis and drug screening tests.
What it means for you
The safety obligations imposed by the new Regulations are already in place for local rail operators, although they have been extended to rail transport operators of private sidings.
If your business or undertaking operates private sidings, you will need to familiarise yourself with the Regulations and transition to compliance with the Regulations.
Local rail operators may also need to update their drug and alcohol management policies to reflect the change to prescribed breath testing devices and the move from urine testing to oral fluid and drug screening tests.
SUPERVISOR ACTION NOT REPEATED UNREASONABLE BEHAVIOUR The Fair Work Commission has dismissed an employee's stop-bullying application because he was not subjected to "repeated unreasonable behaviour" by his supervisor.
The employee worked for Bunnings Warehouse and claimed his supervisor had micromanaged him by repeatedly calling him, asking where he was and "bursting" into an aisle whilst he was helping a co-worker, directing him to return to his department. He also gave evidence that on another occasion, his supervisor had made an inappropriate comment on his appearance. The worker also claimed that when he intended to discuss this behaviour with senior management, he was unable to get in contact with them.
Bunnings denied that the supervisor had bullied the employee, claiming that checking the whereabouts of the worker and directing him back to his department amounted to reasonable management action. In addition, Bunnings claimed that the comment made to the employee about his appearance was not unreasonable given the circumstances in which it was made.
Although it was found that the supervisor had spoken to the employee abruptly and in some cases was insensitive, much of the conduct relied upon was reasonable management action. As such, the statutory requirement for there to be repeated unreasonable behaviour had not been met.
Nevertheless, Bunnings did not escape criticism, with Commissioner Gregory noting the worker should have been able to access senior managers to escalate his concerns in a timely manner.
What it means for you
This decision gives comfort to employers that even if management action taken in relation to their workforce is not perfect, depending on the circumstances and provided it is reasonable, it will not amount to bullying.
Nevertheless, employers should make sure they do not increase the risk of adverse findings, and ensure that proper performance management and complaints management processes are followed. In order for a workplace to avoid the criticisms levelled at Bunnings, it should ensure that detailed workplace policies explaining how allegations of bullying and other misconduct will be dealt with are in place and followed. Employers may also wish to consider training
their workforce, and especially supervisors and managers, on how to best approach bullying behaviour in the workplace.
Deficiencies in disciplinary and complaints procedures can lead to unfair dismissal complaints, general protections claims, or work health safety breaches. These can be costly and time-consuming and can be avoided by ensuring complaints and discipline processes are clear and followed consistently
John Krnjic  FWC 3688
"This decision gives comfort to employers that even if management action taken in relation to their workforce is not perfect, depending on the circumstances and provided it is reasonable, it will not amount to bullying."
WORKERSâ€™ COMPENSATION RETURNING INJURED WORKERS CAN CHALLENGE JOB OFFERS A recent decision of the South Australian Employment Tribunal (SAET) has signalled that injured workers who, upon returning to work, are offered jobs that they consider to be unsuitable, may be able to challenge the job offer from their employer.
The full bench of the SAET considered the scope of an employer's responsibilities under section 18(5) of the Return to Work Act 2014 (SA), which requires an employer to provide employment to a worker, unless it is unreasonable to do so. There are similar provisions in other state-based legislation that contain this requirement.
Ms Harrington worked at Healthscope full- time as a nurse. During her employment, she sustained various injuries leading to a partial incapacity for work. She had been participating in various return to work plans and gave notice to Healthscope that she was ready, willing and able to return to work and as such, sought suitable employment. Healthscope identified a position for her doing administrative duties, and arranged a transfer. However, Ms Harrington told Healthscope she did not wish to be transferred into the new administrative position and did not accept the transfer.
The question of Healthscope's obligation as an employer to find suitable employment for Ms Harrington was referred to the full bench. Healthscope argued that because it had offered Ms Harrington employment, she could not rely on section 18(5) to dispute the suitability of that employment. The Full Bench disagreed, finding that it was relevant for the Tribunal to consider whether the employment offered to the worker was "suitable" or not, particularly where the legislation required an employer to provide a returning worker with suitable employment
that was the "same as, or equivalent to, the employment in which the worker was working immediately before the incapacity".
What it means for you
As an employer, genuine efforts must be made to find suitable employment for an injured worker who wishes to return to their pre-injury duties.
Whether a position is suitable will ultimately depend on an assessment of available medical evidence and any restrictions on a worker's capacity to perform their pre-injury duties. Reduced hours and other arbitrary measures may not always be the answer.
That being said, finding suitable employment for a worker must also take into account what is reasonably practicable for the employer to provide. Employers are not required to go above and beyond to meet all the demands of a worker if those demands are not able to be met. However, as a matter of best practice, employers should document their decision-making process to demonstrate that reasonable efforts have been made to find a suitable position for the worker.
Harrington v Healthscope SA  SAET 65 (11 July 2017)
QUEENSLAND COURT OF APPEAL CONFIRMS $1.5 MILLION DAMAGES ORDER The Queensland Court of Appeal has upheld a decision of Queensland Supreme Court that an employer, Brisbane Youth Services (BYS) was negligent in allowing an employee to provide support services to a client who subsequently assaulted her. The Court of Appeal upheld the decision by Justice Atkinson of the Supreme Court that found in favour of the employee, Ms Beven, and awarded her $1.5 million in damages.
BYS provides counselling and other support services to homeless and drug affected young people. One of the employee's clients was a young woman, T, who had a history of developing inappropriate levels of intimacy towards BYS employees. Ms Beven was assigned to work with T. Ms Beven's role was to act as an advocate for T, and to deliver an educative program to T.
During a meeting with representatives from the Department of Child Safety, T sexually assaulted Ms Beven, who suffered a psychiatric injury as a result and became unable to work. Ms Beven had a pre-existing vulnerability to such an injury due to having been sexually assaulted as a child, a fact that her employer was unaware of.
BYS argued on appeal that Justice Atkinson had failed to consider Ms Beven's extensive experience, and her prior knowledge of the client's sexualised behaviours and the inherent risks associated with Ms Beven's role as a social worker.
The Queensland Court of Appeal upheld the decision of Justice Atkinson. Justice Sofronoff commented that, while workers must apply their professional judgment in cases like this, their supervisors were in a "superior position" to assess risks and "weigh them against the role and the duty of the institution", before determining whether to permit the worker to face the risk. He was satisfied that the risk of assault, including sexual assault, was reasonably foreseeable considering T's history and suggested that the reasonable precaution for the employer in this case would have been to refer T to a different organisation better suited to her needs.
What it means for you
This case acts as a reminder to employers that the they have a duty of care to prevent workers from undertaking risks.
In cases such as this, the employer will not be able to defer to the worker's professional judgment to prevent liability.
Brisbane Youth Service Inc v Beven  QCA 211
COMPLIANCE NEW WORK HEALTH AND SAFETY BILL ANNOUNCED FOR WA The WA Government has given the green light to the development of a Work Health and Safety Bill, which will bring Western Australia's occupational, health and safety legislation in line with the rest of the States and Territories, other than Victoria.
This announcement marks the start of a lengthy consultation period with stakeholders, with the Bill expected to be introduced to Parliament in mid-2019.
The Bill will be based on the harmonised national legislation, providing consistency across Australia in occupational, health and safety legislation, and replace the following Acts:
â–º Occupational Safety and Health Act 1984;
â–º Mines Safety and Inspection Act 1994; and
â–º Petroleum and Geothermal Energy Safety Levies Act 2011.
The announcement of the new Bill is not the only current development in WA occupational, health and safety law, after a public inquiry into the State's OHS regulator, WorkSafe, was announced at the end of June. The inquiry will consider, among other things, WorkSafe's performance against the objects of the Occupational Safety and Health Act 1984.
Chairwoman of the inquiry, Adele Farina, noted there have been 315 work-related deaths in WA since 2001 and stated that the inquiry will:
â–º review the adequacy of existing OHS laws;
â–º review WorkSafe's processes and resourcing; and
â–º make recommendations aiming to improve safety in the workplace.
Increased penalties have also been proposed under WA laws ahead of the broader changes to WA occupational, health and safety legislation.
What it means for you
The Bill is not expected to be introduced to State Parliament until mid-2019, allowing a lengthy period of consultation with stakeholders and the community.
However, the development of the new Bill, along with the parliamentary inquiry into Worksafe, will see a complete overhaul of WA's OHS laws which will impact on all businesses within WA.
Businesses in WA could take some time now to ensure their work health and safety measures are in place and will put them in a good position to comply with the new laws.
INCREASES TO FINES AND JAIL TIMES FOR SAFETY BREACHES IN WA Amendments to the Occupational Safety and Health Act 1984 have been proposed in Western Australia in an effort to significantly increase penalties for offences and align them with other jurisdictions in advance of adoption of the national model WHS legislation in 2019.
The amendment will bring WA into line with other States and Territories, who, with the exception of Victoria, have been operating under harmonised legislation since 2011. The penalties under the OSH Act have not been amended since 2004, which has resulted in significant discrepancies between WA and the majority of the country.
Under the proposal penalties for low level offences will increase by approximately 800%, while fines for level 4 offences will increase from $500,000 to more than $2.7 million. Further, individuals convicted of a level 4 offence could also face up to a maximum of 5 years' imprisonment, as opposed to the 2 year maximum under the current legislation.
The amendment bill has not yet been introduced, and it is not yet clear whether the goal of harmonising the OSH Act with legislation in other States will be reflected in other amendments to the legislation ahead of expected adoption of the national model laws.
What it means for you
The proposed changes emphasise the importance of reducing risks to health and safety in the workplace. Given the changing landscape in WA occupational safety and health legislation, it is important for employers to keep up to date in relation to all amendments and to ensure workplace policies and procedures are compliant.
The changes announced significantly increase the potential consequences of non-compliance with the work health and safety legislation in Western Australia, and indicate that there will be further legislative activity over the coming months.
Directors and other office-holders should also take note of the increased penalties for individuals, as they can be held personally liable for breaches of the OSH Act in certain circumstances.
While full harmonisation has been proposed for 2019, duty holders should continue to monitor developments in the interim.
SIRIUS EXPLANATION OF NSW HERITAGE LISTING LAWS The Sirius decision has set out the framework in NSW for the decision-maker's analysis of undue financial hardship in decisions on heritage listing.
A public housing building, the "Sirius" building, in a prominent location in the Rocks, was identified for sale by the NSW Government. In response to this, the National Trust of Australia nominated Sirius for listing on the State's Heritage Register. The NSW Government objected to the listing because it would adversely affect the value of the property.
Under section 32, of the Heritage Act 1977 the Minister can direct the NSW Heritage Council to list an item on the Register, but only if Minister has considered various matters, including whether the listing would cause "undue financial hardship to the owner". The Minister found that the Government would experience undue financial hardship, which would outweigh any heritage significance of the building.
The court found that, although the Minister was not obliged to consider the factors in section 32(1) in making his decision, having done so, he was bound to do so according to law. Therefore he needed to properly assess undue financial hardship.
The court held that financial loss does not equal financial hardship and the decision-maker must consider the owner's particular financial circumstances in determining if there has been undue financial hardship. The word "undue" requires a qualitative assessment. This is done by reference to the effect the listing would have, and the heritage value of the item considered for listing. Further, the decision-maker must consider the effect that the restrictions under the Act would have on the owner's ability to deal with the item (including restrictions on development), as well as any benefits that might accrue (for example availability of special funding). The Minister had not undertaken this analysis.
What it means for you
The Sirius decision has made it clear that the Minister can decline to direct a building be listed on the State Heritage Register without considering the matters in section 32. More significantly interested parties should note that future decisions will feature a more rigorous analysis of the decision-maker's consideration of undue financial hardship.
Millers Point Community Assoc. Incorporated v Property NSW  NSWLEC 92
ENVIRONMENTAL DUE DILIGENCE LOOSE ENDS: BUYERS â€¦ AND SELLERS â€¦ BEWARE The NSW Land and Environment Court has fined both the new operator and the previous operator of an abattoir for water pollution, and the previous operator for contravening the conditions of the abattoir's Environment Protection Licence (EPL), in relation to a single pollution incident.
The operator of an abattoir, P&M Quality Smallgoods Pty Ltd, was sold in March 2015 to the JBS Group. JBS began operating the abattoir
in June 2015, but P&M remained the EPL holder. In August 2015 between 70,000 and 140,000 litres of effluent was pumped via a discharge pipe to an unauthorised area, where some of it then flowed into the nearby Two Mile Gully Creek. The discharge was contrary to the abattoir's environmental management plan.
The NSW Environment Protection Authority charged JBS and P&M because, although they did not have any physical involvement in the incident, P&M was taken to be the occupier pursuant to section 258(2) of the Protection of the Environment Operations Act 1997 since it was the EPL holder at the time of the incident.
The court also took the view that the fact that P&M is only deemed to be the site occupier and had no physical involvement in the incident was not a significant mitigating factor, and P&M still had a duty, as EPL holder, to take steps to prevent the incident.
What it means for you
This case highlights the importance of careful environmental due diligence in a transaction, to get a good understanding of a business' systems, capabilities and operational risks. In particular, the consequences of holding â€’ or not holding â€’ the EPL for an operation should be considered carefully.
EPA v P&M Quality Smallgoods Pty Ltd; EPA v JBS Australia Pty Ltd  NSWLEC 89
QUEENSLAND AUDIT OFFICE PRAISES IMPROVED COMPLIANCE SYSTEM The Queensland Audit Office has praised the Department of Environment and Heritage Protection's (DEHP) improved environmental compliance system.
In 2014 the Audit Office found that DEHP had underperformed across a range of compliance areas. It was found that DEHP did not complete routine checks on environmental authorities (EA), only inspected sites that were regulated by EAs in response to complaints and did not recover much of the money owed as a result of annual fees, infringement notices and mining
DEHP has since implemented a Compliance Prioritisation Model that targets high-risk sites for inspection through assessing all sites with an EA against 52 risk variables. This allows the sites to be classified as high-risk, medium-risk or low- risk and allows for an efficient use of Department resources to target the high-risk sites.
Further, DEHP has now reduced the amount owed in annual fees by almost half and increased the amount held in financial assurance for mines from $4.6 billion in 2013 to $6.8 billion.
What it means for you
All EA Holders should review their authority and ensure compliance with conditions. Further, EA Holders should ensure all outstanding fees are paid on time, to help reduce their risk classification.
ON-THE-SPOT SAFETY FINES AND REGULATIONS COMMENCE IN QUEENSLAND On June 30 2017, the Queensland Government passed amendments to the State Penalties Enforcement Regulation 2014 to introduce two new on-the-spot fines for breaches of the Electrical Safety Regulation 2013 (Electrical Regulations). The amendments have been made in response to a spate of powerline-related fatalities at worksites in Queensland in 2016, as well as injuries from electrical burns and shocks.
The new fines are for breaches relating to work performed at unsafe distances from overhead or underground electrical lines, and failing to take associated risk assessments and control measures. Inspectors are now able to issue on-the-spot fines of up to $600 for an individual or $3,000 for a corporation that breach these provisions.
An unsafe distance for an overhead electric line for the purposes of the Electrical Regulations is within the exclusion zone for a person, operating plant, or vehicle. The exclusion zones are prescribed in the Regulations.
The Electrical Safety Act 2002, which enables the Electrical Regulations, has also been amended
to enable the Electrical Safety Regulator to immediately suspend an electrical worker's licence to perform electrical work if it reasonably believes that the work:
â–º may have caused the death of, or grievous bodily harm to, a person; or
â–º may involve an imminent serious risk to the health or safety of a person.
What it means for you
It was noted by the Queensland Government that the people most at risk were those working as tree loppers, construction workers and billboard and signage installers.
It is important to ensure that persons conducting electrical work, especially in these areas, take reasonable steps to avoid being within unsafe distances of overhead or underground electrical lines. You may also need to review and update your safety training and procedures, keeping in mind the power of the Regulator to suspend electrical work licences.
In the event that it is not reasonably practical for a person to be outside of an unsafe distance, you must ensure that a risk assessment is taken for the work to be done, and that control measures are implemented. These control measures must be consistent with the risk assessment, as well as any requirements of the electricity entity if it is responsible for the line.
NEW CONTAMINATED LAND GUIDELINES IN NSW Revised Guidelines made by the EPA place a heavier burden on site auditors to make their own checks and provide sign-offs, particularly in relation to the management of waste and contamination by hazardous gases and PFAS. The new edition of the Guidelines took effect on 20 October 2017 and applies immediately to all site auditors and site audits in NSW. As there are no transitional provisions dealing with site audits which are currently on foot, it is not yet clear how the EPA proposes to deal with these sites and whether ongoing audits will need to be redone to address the requirements of the updated Guidelines.
Site owners and developers should ensure that their proposed waste management plans will
satisfy the new audit scheme, and should seek advice if uncertain. It is common for a site audit to be conducted at the end of the lease as part of the tenant's yield up obligations. As site auditors now have expanded obligations, the potential risks posed by any more expansive assessment (compared to the baseline contamination assessment) will also need to be considered by landlords and tenants.
Finally, as site auditors now have expanded reporting obligations to the EPA, the pros and cons associated with conducting a non-statutory site audit on a potentially contaminated site which has not previously been reported to the EPA (or is otherwise being regulated by the CLM Act) will also need to be weighed up.
For more information, see "New Contaminated Land Guidelines place more obligations on NSW Site Auditors".
REGULATOR NEWS QUEENSLAND TO INTRODUCE LARGE PENALTY INCREASES IN MINING AMENDMENTS Introduced into the Queensland Parliament in September, the Mines Legislation (Resources Safety) Amendment Bill 2017, will to increase maximum fines available under the Coal Mining Safety and Health Act 1999 and the Mining and Quarrying Safety and Health Act 1999.
The Bill, which is designed to improve safety and health outcomes for mine workers, will address 15 areas for improvement that have been identified in the resources safety and health regulatory framework. This includes amendments to ensure greater transparency and accountability; improvements to safety and health management systems, and stronger enforcement and compliance powers for the regulator.
These changes will be made in areas such as:
â–º inspector powers including inspector workplace entry;
â–º contractor and service provider management;
â–º safety and health management system requirements;
â–º officer obligations; and
â–º health surveillance.
In terms of fines, the Bill will make a number of changes, including to increase the maximum fines for contraventions causing multiple deaths from $252,300 to $3,784,500.
What it means for you
The Bill has been referred to committee for consideration.
It includes a number of important changes for businesses in the mining industry. Businesses
and their officers are strongly encouraged to familiarise themselves with the coming changes in order to be prepared when they pass into law.
Recommended actions could include:
â–º auditing your current safety management systems for compliance with the amended laws;
â–º ensuring officers are trained and understand their safety obligations; and
â–º considering what changes may be required to contractor management or supplier arrangements to avoid compliance issues.
THE WAR ON WASTE CONTINUES: MINIMUM ENVIRONMENTAL STANDARDS FOR SCRAP METAL FACILITIES The NSW Environment Protection Authority has released its Consultation Paper: Proposal for Minimum Environmental Standards in the Scrap Metal Industry. The EPA's objective is to ensure that, irrespective of the size of a scrap metal facility and whether or not it requires an Environment Protection Licence (EPL), there will be legislated environmental standards that will apply across the industry.
The Consultation Paper proposes eight minimum standards including scrap metal must be processed on hardstands under covered areas with appropriate drainage infrastructure; chemicals must be handled, stored and disposed or appropriately, no burning of waste and battery handling areas must be bunded, covered and on a hardstand.
Scrap metal facilities that fail to comply with the minimum environmental standards may be subject to regulatory action. It is likely that failure to comply with the standards will be a breach of
the Protection of the Environment Operations Act 1997. The EPA has the power to impose fines, issue clean-up notices or prosecute individuals and corporations for breaches of the Act. Local councils may also have powers to enforce compliance and deal with breaches.
What it means for you
Scrap metal facilities should closely monitor the development of the proposed minimum standards to ensure compliance when the standards are formalised. The EPA will allow a grace period following legislative changes so that facilities can make both practical and procedural improvements and come into compliance with the standards.
WORKSAFE VICTORIA TARGETS WORKPLACE BULLYING In late July, WorkSafe Victoria announced that it will target workplace bullies with a three-year program to educate employers about preventing abusive behaviours. The program will combine a series of workshops across Victoria with targeted inspections in the local area.
The workshops will provide information to business owners on how to recognise, prevent and manage workplace bullying and how to support workers to return to work after experiencing a mental health injury associated with bullying.
The inspections will focus on industries where there is a higher number of mental injury claims lodged due to workplace bullying with inspectors offering practical advice to employers.
Marnie Williams, WorkSafe's Executive Director of Health and Safety, said that "of the 26,000 injury claims lodged with WorkSafe in 2016, more than 3100 were for mental injuries, and 1260 of those mentioned bullying as a cause."
Employers should be aware that allowing workplace bullying to occur can lead to serious breach of workplace health and safety laws and risk prosecution. Last year, a builder in Geelong was convicted and fined $12,500 after an 18-year-old apprentice was subjected to
verbal, physical and psychological bullying and harassment at work.
What it means for you
This is a reminder that workplace bullying complaints are safety matters and should be taken seriously, recognised early and responded to appropriately.
Employers should ensure that they have accurate and up to date policies and procedures to deal with situations of workplace bullying and that these policies and procedures are implemented in response incidents of workplace bullying. Employers should also ensure that all employees are attend regular training to raise awareness and prevent instances of workplace bullying.
To register for one of WorkSafe Victoria's workshops go to www.worksafe.vic.gov.au/ events.
NSW COUNCILS LOSE DEVELOPMENT APPROVAL POWERS TO INDEPENDENT PANELS On 10 August 2017, the NSW Parliament passed amendments to the Environmental Planning and Assessment Act 1979 (NSW) in an effort to improve accountability and transparency in the development application (DA) approval process under the NSW planning framework.
A key feature of the amendments is the introduction of local planning panels. Once a local planning panel has been established, the relevant local council will be required to refer a DA to that panel for determination if the DA meets specific criteria. The NSW Government has stated that local planning panels will decide DAs including those for proposed development with a capital investment value of more than $5 million and less than $30 million and those for which 10 or more different households have submitted objections.
The standard model for each local planning panel will comprise of four members, including three independent persons with relevant expertise and a representative of the local community who is not a councillor or mayor. The term of a member will be restricted to no more than three years,
and no more than six years in office in total. The legislation will require the local planning panel to provide notice to the public of each meeting, conduct each meeting in public and make electronic recordings of each meeting publicly available online.
What it means for you
This should take some of the local politics out of DA and rezoning determinations, and it may help to improve DA determination time-frames. However, handing decision-making to a panel of experts and a community member could lead to some surprising outcomes on DAs. Developers should consider these changes when making their applications.
Environmental Planning Assessment and Electoral Legislation Amendment (Planning Panels and Enforcement) Bill 2017 (NSW)
"CONCEPT DEVELOPMENT APPLICATIONS" TO TAKE CENTRE STAGE IN NSW The NSW Government has acted swiftly to legislate in response to the NSW Court of Appeal's decision in Bay Simmer Investments Pty Ltd v State of New South Wales, where, in a surprising outcome for developers and consent authorities alike, the NSW Court of Appeal held that:
â–º construction-related impacts for a "staged development" proposal must be addressed in the development application for the first stage of that proposal; and
â–º the staged development consent process can only be used for developments with more than one stage.
The Bill, once it receives the Governor's assent, will replace the current provisions for staged development applications in Part 4, Division 2A of the Environmental Planning and Assessment Act 1979. The key changes are:
â–º "staged development applications" will be renamed "concept development applications";
â–º a "concept development application" may be followed by a single detailed development application, so that the development may
comprise only one stage; and
â–º the consent authority is not required to consider the impacts of the carrying out of the development (such as construction-related impacts) at the concept stage, if the carrying out of the development is to be the subject of a subsequent detailed development application.
The Bill validates any consent that would have been valid had the amendments been in force when the consent was granted, except for the Walsh Bay Arts Precinct consent which was specifically invalidated by the Court of Appeal. The Department of Planning and Environment had estimated that the projects which were at risk of legal challenge had a combined capital investment value of over $8 billion and were expect to deliver over 14,500 dwellings across the State.
What it means for you
Developers should be aware of the upcoming changes and can plan their staged development applications accordingly.
Bay Simmer Investments Pty Ltd v State of New South Wales  NSWCA 135
THE HIGH COURT HAS REFUSED TO HEAR THREE WASTE CASES The High Court has refused to hear three appeals from waste companies in Western Australia, South Australia and New South Wales.
The WA Supreme Court ordered Eclipse Resources to pay more than $20 million in waste levies and penalties in March 2016. Eclipse Resources had not paid a landfill levy since 2008, on the grounds that its recycling of inert materials did not constitute disposal of waste to landfill. The High Court dismissed the application, allowing the WA State Government to pursue Eclipse for the payment of the levies.
The High Court also refused to hear Adelaide Resource Recovery Pty Ltd's appeal against a ruling of the South Australian Supreme Court that it was guilty of stockpiling construction waste. The Supreme Court found that there was a broad
definition of "waste" and the mere fact that a material is of value, is not sufficient to render it a product.
Further, the High Court refused to hear an appeal by NSW company Dial a Dump Industries in relation to compensation for land that compulsory acquired by the State. Dial a Dump used the land to operate a waste landfill but it was found that it did not have an "interest in the land"; it merely held a licence to carry out business on the land.
What it means for you
All three cases show the broad powers of state regulators to enforce waste regulations. The High Court has upheld the broad interpretation of each of the relevant pieces of legislation and waste companies ought to consider these broad definitions in regards to their own compliance in the future.
NEW QUEENSLAND LAND ACCESS OMBUDSMAN The Land Access Ombudsman Act 2017 was assented to on 13 September 2017 by Queensland Parliament. The Act seeks to result in a more timely resolution of disputes related to conduct and compensation agreements (CCA) or make good agreements (MGA).
When the provisions of the act are proclaimed, the Office of the Land Access Ombudsman will be established, and a Land Access Ombudsman (LAO) will be appointed to provide owners and occupiers of private land, bore owners and holders of a resource authority, with an independent body to investigate and make recommendations as to how to resolve disputes of an alleged breach under a CCA or MGA.
A party to either an CCA or an MGA may refer a "land access dispute" to the LAO after it has made reasonable attempts to resolve the dispute. Importantly, the Act provides that a party who refers a dispute to the LAO does not incur civil liability for breach of a dispute resolution condition in a MGA or CCA. A land access dispute referral may be made even if the CCA or MGA was entered into, or the land access dispute arose, before the commencement of the Act.
What it means for you
Operators in the energy and resources industry or parties to an MGA or CCA should be aware of the new provisions. The services of the LAO are free and likely to result in a faster dispute-resolution process.
WA GOVERNMENT RELEASES STATE BUDGET PAPERS The Western Australian Department of Water and Environmental Regulation has announced some significant changes with the release of the State Government budget papers. The Department is introducing a state-wide container deposit scheme that is intended to reduce litter, increase recycling and protect the environment. It is expected that the scheme will commence in January 2019, operating alongside kerbside recycling. This may be the first step towards a wider product stewardship program.
The Department is undertaking a stocktake of measures being taken by government agencies in regards to water resource management. This is in response to the South West of WA experiencing a decline in annual rainfall.
Further, the Department will update its contaminated sites guidance, including the guidelines on assessing and managing contaminated sites and remediating groundwater by natural attenuation. Finally, the Department is developing a new Compliance and Enforcement Policy. An interim Compliance and Enforcement Policy has been in force since 1 July 2017. It is expected that the new policy will come into force with a year.
What it means for you
All developers ought to stay informed in regards to the new guidelines and policies to ensure full compliance. Further, increased enforcement actions are likely to result from the new guidance.
ON THE HORIZON COMMONWEALTH GIG ECONOMY AND LABOUR HIRE RULES RECOMMENDED
The Senate's Education and Employment Committee has made 29 recommendations to strengthen and expand employment protections for employees, including for those working under labour hire arrangements or working for gig- economy companies like Uber.
The recommendations in the Committee's report on "Corporate avoidance of the Fair Work Act 2009" include:
â–º preventing the Fair Work Commission from terminating enterprise agreements if doing so would leave employees worse off;
â–º establishing and supporting labour hire licensing requirements (similar to arrangements in place in Queensland and proposed in South Australia and Victoria) and allowing labour hire workers to participate in and negotiate collective agreements with their host employer;
â–º imposing obligations on host employers to ensure the labour standards of labour hire workers, incorporating the "person conducting a business or undertaking" concept from work health and safety laws;
â–º broadening protections against sham contracting; and
â–º bolstering protections for workers in the gig economy, including by expanding minimum wage application, requiring compliance with minimum employment requirements, reviewing existing tax implications, and reviewing the application of work health and safety and workers' compensation legislation.
The Committee also recommended changes covering casual employee rights, superannuation protections, recovering unpaid wages, displaying infringement notices, migrant worker laws, and education and awareness of employment rights.
The Coalition members of the Committee
published a dissenting report that did not endorse any of the recommendations. The Federal Government is therefore not expected to adopt these recommendations, however certain recommendations could potentially be adopted as other legislation navigates the Senate.
What it means for you
Companies should review their arrangements for engaging non-employee workers, in particular labour hire workers and independent contractors.
The continuing rise of the gig economy and the popularity of labour hire arrangements are leading to increased focus on the validity of these arrangements. Companies should audit their existing arrangements to identify worker engagements that risk being characterised as employment relationships. Steps should then be taken to address any issues identified, for example by either engaging the individuals as employees or changing the terms of their engagement to better reflect their non-employee status.
ONE STEP CLOSER TO NEW CHEMCIALS SAFETY REGULATIONS
The Senate Community Affairs Legislation Committee has recommended that new industrial chemicals legislation be passed.
The Committee recommended that six Bills before it for consideration be passed, including the Industrial Chemicals Bill 2017, which would amend Australia's process for assessing and approving industrial chemicals. Under the new legislation:
â–º the National Industrial Chemicals Notification and Assessment Scheme (NICNAS) would be renamed as the Australian Industrial Chemicals Introduction Scheme (AICIS);
â–º the Australian Inventory of Industrial Chemicals would be established; and
â–º six risk-based categories of industrial chemicals would set out the requirements for their introduction (import or manufacture in Australia).
Lower-risk chemicals will be permitted to be introduced without assessment by AICIS. If a medium- to high-risk chemical is introduced, it will need to be assessed by AICIS.
A high-risk chemical could be introduced without assessment by AICIS though an "international pathway", which relies on the chemical being examined by a trusted international body, which is likely to include bodies from Canada, Europe and the United States.
Also under the Bill, most testing of cosmetics on animals would be banned.
The NICNAS estimates that there will be a 70% reduction in the number of new industrial chemicals that will be subject to pre-market assessment.
What it means for you
The emphasis on a risk-based approach under the proposed legislation will allow companies to self-assess whether chemicals are low- or high- risk by determining the appropriate hazard bands using AICIS guidance.
This could mean much lower compliance cost and could lead to extra efficiencies elsewhere. However, companies should not allow these developments to relax their attitude to work health and safety compliance.
NEW SOUTH WALES BRAVE NEW WORLD: NSW BIODIVERSITY CONSERVATION REFORMS COMMENCE The long-awaited NSW biodiversity conservation and land management reforms took effect on 25 August 2017, with the commencement of the Biodiversity Conservation Act 2016 and related legislation. This legislative package replaces a wide range of existing biodiversity related legislation.
One of the most significant changes is the establishment of a Biodiversity Offsets Scheme, for the impacts on biodiversity values of many kinds of development under the Environmental Planning and Assessment Act 1979 (Planning Act). The intention under the Scheme appears to be that all offset calculations and offset arrangements be addressed in terms of
Biodiversity Stewardship Agreements (BSAs) are now the primary method for creating biodiversity credits under the Scheme, and are similar to biobanking agreements under the former biobanking scheme. BSAs are voluntary, in-perpetuity agreements with the primarily the Biodiversity Conservation Trust. They establish a biodiversity stewardship site on which biodiversity credits are generated in accordance with the BSA. Offset requirements under the new assessment method are considered to be substantially higher than under the former biobanking legislation.
Biodiversity certification allows offsetting across an entire land release area, usually at the rezoning stage, instead of offsetting on a site-by- site basis, to encourage planning authorities and landowners to avoid and minimise biodiversity impacts where possible. Standard biodiversity certifications are available to planning authorities and landowners, with "strategic" proposals (as determined by the Environment Minister) available only to planning authorities.
What it means for you
All developers should be aware of the changes and seek advice on how to comply with the new provisions if they meet the Scheme Threshold (ie. development which needs development consent under Part 4 of the Planning Act, except for and State significant development).
Further, there are extensive transitional arrangements in the Biodiversity Conservation (Savings and Transitional) Regulation 2017. These include that local developments may use the former offsets scheme if lodged within three months of 25 August 2017 and applications to enter a biobanking agreement under the former act may be lodged within six months of this date if the biodiversity assessment was collected prior to this date
Biodiversity Conservation Act 2016 (NSW)
Biodiversity Conservation (Savings and Transitional) Regulation 2017 (NSW)
QUEENSLAND NEW QUEENSLAND WASTE & RECYCLING LAWS The Waste Reduction and Recycling Amendment Act 2017 was passed on 13 September 2017 in Queensland. The Act will ban plastic shopping bags in Queensland from 1 July 2018. Retailers can be fined up to 50 penalty units for providing plastic shopping bags of a thickness that is less than 35 microns to consumers. The Act does not prohibit the heavier plastic bags that are used at department stores.
The Act also introduces a recycling refund scheme for beverage containers. This part of the Act aims to reduce the number of containers that are littered or disposed of to landfill. The recycling refund scheme will be administered by the Product Responsibility Organisation (PRO). A manufacturer of a beverage product will enter into a written agreement with the PRO to ensure the manufacturer contributes to the cost of the scheme.
What it means for you
Retailers who currently provide plastic shopping bags should prepare for the transition next year. Manufacturers of beverages will also need to start planning for the transition and seek advice on the regulatory requirements that will apply.
SOUTH AUSTRALIA LABOUR HIRE LICENSING LAWS INTRODUCED The South Australian Government has introduced the Labour Hire Licensing Bill 2017. The objective of the Bill is to promote the integrity of the labour hire industry.
It provides that it is unlawful to operate as a labour hire provider without a licence, and for businesses to use unlicensed operators.
Consistent with recent Queensland amendments, the Bill includes:
â–º a "fit and proper person" test for owners and directors;
â–º a designated entity who may object an application before a licence being granted;
â–º annual report requirements; and
â–º significant penalties for employers that use unlicensed labour hire companies.
The South Australian Government has stated that there is a need for increased co-operation between State and Federal Governments in the labour hire licensing area.
South Australian Government has indicated that it will continue to push for a national licensing scheme but that it will begin drafting state-based labour hire legislation.
VICTORIA VICTORIA TO INTRODUCE LABOUR HIRE LICENSING LAWS The Victorian Government announced recently that it will introduce labour hire laws by the end of the year. The laws are proposed to apply to all sectors in the state, which is much broader than the Government had earlier signalled.
According to the Victorian Premier, under the new laws:
â–º a license can only be obtained through passing a â€œfit and proper person testâ€ and by demonstrating compliance with workplace, labour hire industry and migration laws and minimum accommodation standards
â–º licensed providers will be listed on a public register and employers will be required to only use licensed labour hire providers
â–º a new independent, fit-for-purpose, statutory authority â€“ headed by a Commissioner â€“ will be established to oversee and enforce the scheme, and will be able to inspect and raid premises.
While these laws are mostly consistent with laws in Queensland and proposed in South Australia, the creation of a standalone regulator could indicate a tougher framework will exist in Victoria.
COMMONWEALTH â–º Fair Work Amendment (Protecting Vulnerable Workers) Act 2017
â–º Land Access Ombudsman Act 2017
â–º Waste Reduction and Recycling Amendment Act 2017
â–º Work Health and Safety and Other Legislation Amendment Act 2017
â–º Work Health and Safety Act 2011
â–º Electrical Safety Act 2002
â–º Safety in Recreational Water Activities Act 2011.
â–º Strong and Sustainable Resource Communities Act 2017
â–º Labour Hire Licensing Act 2017
â–º State Penalties Enforcement Regulation 2014
NEW SOUTH WALES â–º Environmental Planning Assessment and Electoral Legislation Amendment (Planning Panels and Enforcement) Bill 2017
â–º Biodiversity Conservation Act 2016
â–º Biodiversity Conservation (Savings and Transitional) Regulation 2017
VICTORIA â–º Rail Safety (Local Operations) (Accreditation and Safety) Regulations 2017
â–º Rail Safety (Drug and Alcohol Controls) Regulations 2017
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ENVIRONMENT & PLANNING
EDITOR Brett Thompson