CU UP TO DATE KEEPING YOU UPDATED ON KEY TRENDS AND YOUR DUE DILIGENCE OBLIGATIONS IN WORK HEALTH AND SAFETY / ENVIRONMENT JULY 2016 QUARTERLY UPDATE INTRODUCTION OFFICERS’ DUTIES AND LIABILITIES 1 INDUSTRIAL ISSUES 3 HAZARD REDUCTION 4 WORKERS’ COMPENSATION 7 COMPLIANCE 10 REGULATOR NEWS 12 ON THE HORIZON 14 LEGISLATION 16 CONTACTS 18 INTRODUCTION With so much change in environmental and work health and safety regulation, it’s easy to drown in a sea of paper when doing your due diligence. Until now. Our new quarterly newsletter, CU Up to Date, sorts through the last three months and gives you the most important trends and developments nationally ‒ and explains how they will affect your business, now and in the future. From officers’ duties to hazard reduction, industrial relations to regulator news, we’ll keep you Up to Date. And with our sights on the horizon, we’ll help you see the challenges ahead. If you want to know more about how these developments will affect you, please don’t hesitate to contact us. 1 OFFICERS’ DUTIES AND LIABILITIES HR MANAGER LIABLE FOR ACTIONS OF COMPANY DESPITE DENYING INVOLVEMENT AND KNOWLEDGE An HR manager, along with a company and director, have been found liable for knowingly falsifying employment records and making unlawful deductions from wages. The HR manager argued that constructive knowledge of the proper processes wasn’t enough to prove he was aware that the deductions contravened the law. The Court however found that he had “knowledge of the constituent parts of the contraventions, albeit that he may not have known which section of the Fair Work Act, if any, was capable of being contravened”. What it means for you HR managers can be held individually liable for contraventions of the Fair Work Act. Courts expect that all HR managers have a familiarity with industrial practices. FWO v Oz Staff Career Services Pty Ltd  FCCA 105 OFFICER CONVICTION TIGHTENS DUE DILIGENCE LAWS An employer and its director have been fined for failing to comply with a WHS Code of Practice and using an unsuitable ladder, after a worker suffered catastrophic injuries in a fall. The worker hadn’t been trained for working at height nor learnt how to perform the task from other employees. Also, the ladder itself was unsecured and damaged. Judge Scotting found the employer failed to comply with the WHS Code of Practice, while the director was fined individually for failing to exercise due diligence by taking reasonable steps to ensure compliance with the Code of Practice. What it means for you While Codes of Practice are admissible as evidence of what is reasonably practicable they are not of themselves legally binding. However, this case suggests that courts are generally taking a very strict view of compliance with officers’ due diligence duties by assessing them strictly against the Codes of Practice. SafeWork NSW v Austral Hydroponics Pty Ltd; SafeWork NSW v Eang Lam  NSWDC 295 EXTENDED LEGAL RESPONSIBILITY FOR ENVIRONMENTAL HARM IN QUEENSLAND More persons and entities, such as related persons or companies, will be required to clean up or pay for compliance or rehabilitation of land under the Environmental Protection (Chain of Responsibility) Act 2016, which came into force on 27 April 2016. The Act expands the liability of entities who are related companies, landowners or who are persons the Department of Environment and Heritage Protection (DEHP) decides has a relevant connection (generally a financial or management connection) with the company, for preventing and remediating environmental harm. DEHP can also impose financial assurance conditions on the transfer of an environmental authority and it also has greater cost recovery, 2 that companies cannot now change control or structure to avoid the impact of the proposed changes. What it means for you This may require corporate entities to consider and obtain advice on potential liabilities for prevention and remediation of environmental harm in appropriate circumstances. ACCESSORIAL LIABILITY IN FOCUS: EMPLOYEE’S LIFE THREATENING INJURIES LEAD TO LARGE FINE FOR FIX FORCE Like all employers, labour hire companies must be proactive in ensuring their employees are safe in their workplace. A near-record fine was imposed on a labour hire company, Fix Force (Qld) Pty Ltd, after one of its employees suffered life threatening injuries when he was crushed between a lifting arm and a welding table (known as a slice table) in a workshop operated by the Urban Superway joint venture. This recent decision underscores the duty of labour hire companies to ensure they take all reasonably practicable steps to ensure their employees are safe at work, even when the companies do not control the workplace and do not control the design of safety features. What it means for you Although labour hire companies, like all businesses, face time and financial pressures from many sources, it is critically important that they be aware of their duties and obligations under the law and take the time to satisfy themselves of the safety of their employees before sending them to a workplace. Companies should review their contracting, labour hire and secondment processes and ensure they have adequate controls in place to ensure the safety of off-site workers. Boland v Fix Force (QLD) Pty Ltd  SAIRC 16 PIERCING THE CORPORATE VEIL: DIRECTOR ORDERED TO PERSONALLY PAY PENALTIES FOR FAIR WORK ACT BREACHES In a recent case in the Federal Circuit Court, the director of a security company was ordered to pay a large penalty for his involvement in the underpayment of employees of his company. The Fair Work Act 2009 states that a person that has aided, abetted, counselled or procured a contravention of the Act is deemed to have also contravened the Act. In this case, the Court remarked that the director and his company demonstrated calculated and deliberate conduct amounting to a blatant disregard for the law and the rights and entitlements of their employees. Important factors in the decision were the repeated warnings of the Fair Work Ombudsman and the director’s knowledge of employee entitlements from his long involvement in the security industry. In imposing penalties in the upper range, the Court noted the need to make similar contravening conduct unprofitable and commercially undesirable for both the director and others in the industry. The Court ordered the company to pay $257,000 and the director to personally pay $51,400. Back pay was also ordered. What it means for you Employers should always ensure that they comply with the law and provide the minimum standards and entitlements owing to employees. If a director of a company is knowingly involved in the breaches of an Act, particularly if the involvement is significant, the corporate veil will provide no protection from liability. These same concepts and community standards are applied to safety breaches and other compliance failings. Fair Work Ombudsman v Step Ahead Security Services Pty Ltd & Anor  FCCA 1482 3 INDUSTRIAL ISSUES RIGHT OF ENTRY EXTENDS TO MORE AREAS OF THE WORKPLACE BHP Coal had denied an CFMEU district Vice President entry to its Caval Ridge Mine, arguing that the area behind dragline operators’ cabs was unsuitable for talks as the cramped space was close to where operational work was carried out. The CFMEU argued that despite having multiple purposes the area was fitted with a kitchenette and that it was common practice for employees to take meals and breaks in the area. The Full Bench of the Fair Work Commission decided that despite having multiple purposes, the area was fitted with a kitchenette and satisfied the description in section 492(3) of the Fair Work Act, which outlines locations suitable for discussions when agreement can’t be achieved. What it means for you The Commission has said that this interpretation of the right of entry provisions had significant precedent value, suggesting that unions may have access to more areas of the workplace than before the new provisions came into force in 2013. CFMEU v Central Queensland Services Pty Ltd  FWCFB 299 DISMISSING A LONG-TERM EMPLOYEE FOR SAFETY BREACHES The Fair Work Commission recently found on appeal that a Qantas worker who breached safety rules three times in three weeks was not unfairly dismissed, accepting Qantas’ claim that, far from making his dismissal harsh, the worker’s years of experience made his breaches more serious. The Commission said Qantas was justifiably concerned with his conduct, especially in light of the potentially adverse effect it could have had on others’ safety, his role required him to work unsupervised, the events all happened in such a short space of time, and his 14 years of service. What it means for you In cases of employee breaches of WHS rules employers can consider length of service when deciding whether to dismiss the employer or not. This may also mean that if the employer doesn’t dismiss a long-term employee for constant breaches of WHS rules they too may be liable for the safety breach. Rouady v Qantas Airways Limited  FWC 33 INDUSTRIAL ISSUES 4 NEW NATIONAL REGULATION FOR INDUSTRIAL CHEMICALS The Federal Government is proposing a national standard to harmonise environmental risk assessment of industrial chemicals throughout Australia to better protect the environment. The Government has not officially settled on a method of implementation, however the Regulation Impact Statement recommended a co-operative approach between State and Commonwealth as the least costly option to achieve the described objectives, and therefore the preferred option. Once the scheme is in force you will be able to assess the chemicals your business uses against a computerised database. If your chemical is not listed, you can use the computerised database to look up the risk management measures of chemicals with a similar chemical structure, use the NICNAS decision making matrix to identify the concern category applicable to your chemical, or submit your chemical to NICNAS for assessment. The current proposal is for Commonwealth legislation to be enacted in 2017 followed by State and Territory implementation. The National Standard is intended to be in full operation in all jurisdictions by 2018. Learn more HAZARD REDUCTION QUEENSLAND: WHS CODE OF PRACTICE FOR FORMWORK The new Code of Practice, which came into force on 31 March 2016, replaces the 2006 formwork Code and introduces a riskbased approach for design, certification and inspection. Height and volume will become key factors that an engineer must consider when signing off on formwork. Other key changes include clarifying that stair-tread systems must be the primary means of access to a working deck (where practicable) and that imported materials for traditional formwork systems must be certified as conforming to Australian Standards. MICROMANAGEMENT AND BULLYING: FWC UPHOLDS DISMISSAL OF MICROMANAGER The Fair Work Commission has upheld the dismissal of a manager whose micromanagement and aggressive controlling behaviour were causing distress and anxiety to employees that reported to him. After official complaints were made against the manager, the employer conducted an investigation that substantiated the complaints and provided grounds for his dismissal. 5 In rejecting the manager’s unfair dismissal claim, the FWC found that his approach to his staff was one of significant and systematic micromanagement. This included requiring employees to track their work in multiple places, to seek permission to access information central to their work, secondguessing employees’ decisions and generally acting in an aggressive, controlling or bullying manner. Although the manager had the honestly held belief that he was acting in the best interests of staff, he was having a negative impact on morale, productivity, stakeholder relationships and their health and well-being. What it means for you This case emphasises the importance of maintaining an up-to-date code of conduct, work health safety, bullying and harassment and other relevant policies at your workplace. By treating the complaints of its employees seriously and conducting a proper investigation the employer removed a serious impediment to its staff performing their best at work and provided a safe and healthy workplace. Companies should review their risk-based approach to psychological illness and injury arising from stress claims, bullying and harassment and workplace stressors. Peter Carroll v Karingal Inc  FWC 3709 Learn more INATTENTIONAL BLINDNESS: TRAIN CRASH PROBE HIGHLIGHTS ATTENTION DEFICITS Two train drivers were killed when their train collided with a B-double truck at a level crossing on the Bruce Highway in Northern Queensland. The truck driver, who was not hurt, reported not seeing the warning lights or the train coming until it was too late. Although the coronial inquiry looking into the incident cited a range of contributory factors that may have led to the incident, it also raised the possibility that during the incident the driver was experiencing inattentional blindness. Inattentional blindness is said to occur when a person does not notice something that is fully visible and would appear to others as obvious because their attention is engaged elsewhere. Research suggests that inattentional blindness can occur when attention is diverted because of mental workload, routine, conspicuousness and capacity. The inquiry report highlighted that people overestimate their ability to detect changes or objects in their visual environment. Research indicates that, when people are asked whether they can detect a particular type of change, many people say they can, however, actual detection rates are far lower than expected. What it means for you For those in high-risk industries where operator reactions can impact on safety eg. transport, manufacture, construction, mining etc. this incident highlights the importance of monitoring and enforcing operating limits and fatigue management measures. It also serves as a warning for all employers about monitoring these issues for the safety of their employees and the public. RE-EMERGENCE OF BLACK LUNG DISEASE EXPOSES REGULATORY FAILURES The re-emergence of black lung disease among Queensland coal miners shows that coal mine safety standards in Queensland and throughout Australia are currently inadequate, a Senate Committee report recently found. The Committee cited a number of reasons for the re-emergence of the disease that had been thought long dead in Australia. Some reasons included regulator failure and 6 regulatory capture, industry indifference and incompetence, inconsistent risk mitigation and patchy and sometimes compromised health monitoring throughout Australia. What it means for you The re-emergence of the disease is a serious concern. The Committee recommended a range of measures to address its rise and immediately reduce coal mine workers’ exposure to coal dust. These measures could have a significant impact on safety obligations in coal mining operations in the future. There may be other flow-on effects for industry where workers are exposed to contagions like asbestos or hazardous chemicals. All companies should review their health monitoring procedures. “THE RE-EMERGENCE OF THE BLACK LUNG DISEASE IS A SERIOUS CONCERN.” 7 WORKERS’ COMPENSATION COMMONWEALTH Legislation before the Federal Parliament seeking to overhaul the national Comcare workers’ compensation scheme has lapsed with the April prorogation of Parliament. The Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014 sought to, among other things: ► make it easier for corporations to self-insure under the Commonwealth scheme, including the removal of requirements that they compete with a current or former Commonwealth authority; ► tighten eligibility for workers’ compensation, excluding employees who are injured outside the workplace in a recess break or whose death or serious and permanent impairment is caused by their own serious or wilful misconduct; ► expand the operation of the national Work Health and Safety Act to self-insurers under Comcare, thereby excluding State and Territory legislation. The Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015 sought to, among other things: ► restrict coverage for non-work related injuries ► restrict who can provide medical treatment to legally qualified health practitioners (so previous cases involving $29,000 massage treatment with no evidence of medical improvement or a Buddhist meditation retreat would be unlikely to be covered); ► target lump sum payments more towards severe or multiple injuries and away from minor injuries; ► shift the focus of the legislation from compensation to rehabilitation and return to work, including stronger requirements for both employer and employees; ► link income replacement payments to the pension age; ► have no lump sum payments for secondary psychological injuries; ► put caps on legal and medical costs; ► create a “three strikes” regime for noncompliant claimants. Both bills faced opposition in the Senate and lapsed with the April prorogation of Parliament. Whether these bills are introduced again after the election is an open question. If they are passed companies may need to consider whether it would be more advantageous to enter the Federal Comcare scheme rather than the State or Territory-based systems. ACT The ACT has passed a Bill to provide compensation to workers diagnosed with an “imminently fatal asbestos-related disease” before their death. The Workers’ Compensation Amendment Act 2016 adds such diseases to the “prescribed injury” list in the Workers’ Compensation Act 1951 (ACT) for which lump sum compensation is available. This will also remove the need for affected workers to, for example, undertake timeconsuming and lengthy common law litigation to seek compensation. It will also ensure access to rehabilitation, weekly compensation and medical treatment. The amendments take effect on 1 July 2017. 8 SOUTH AUSTRALIA South Australia’s Return to Work Act takes effect on 1 July 2016, leading to several changes to the state’s workers compensation scheme. For example, payments to injured workers will cease after two years unless their injuries are deemed “catastrophic” (at least a 30% whole person impairment or psychological injury). NEW SOUTH WALES The State Insurance Regulatory Authority (SIRA) has published new Guidelines for claiming workers’ compensation, which take effect on 1 August 2016 and replace the following four guidelines: 1. Guidelines for claiming compensation benefits; 2. Work capacity guidelines; 3. Guidelines for work capacity decision internal reviews by insurers and merit reviews by the Authority; and 4. Guidelines for the provision of domestic assistance. Information sessions were held in early July, and a pre-recorded webinar is available from the WorkCover website. The Workers Compensation Regulation 2010 is due to expire on 1 September 2016, with SIRA’s call for submissions on its proposed replacement having ended on 14 June. The draft regulation will remove the possibility of “shared” return to work programs between two or more employers. The Workers Compensation Amendment (Return to Work Assistance) Regulation 2016 commenced on 29 April 2016. The major changes include clarifying that an injured worker’s employer is not liable for the costs of helping them return to work with a new employer if the new job offer is for three months or less, or has not been made in writing. The employer is also not liable for the costs of retraining the worker if the training is inconsistent with the worker’s injury management plan or not approved by an approved training / education organisation. QUEENSLAND Employers no longer have a right to appear and be heard in a worker’s appeal against a review decision of the Workers’ Compensation Regulator following a recent Queensland Industrial Court decision. Under section 549 of the Workers’ Compensation and Rehabilitation Act 2003, if a worker appeals a decision of the Workers’ Compensation Regulator’s Review Unit, the employer does not have a right to be a party to the appeal. Instead, employers could choose to make an application to the Queensland Industrial Relations Commission (QIRC) for leave to be heard under the Industrial Relations Act 1999. Having a right to be heard allowed the employer the ability to receive documents and make submissions / adduce evidence in defence of the appeal and, if the worker’s appeal was successful, appeal the QIRC’s decision. In 2015, Brisbane City Council applied for a right to be heard in a worker’s appeal and its application was rejected by the QIRC. BCC appealed the decision to the Industrial Court. President Martin dismissed BCC’s appeal, determining that: ► the QIRC does not have power to give an employer leave to appear on appeals; and ► an employer (or any person) who has an interest in the workers’ compensation appeal proceedings before the QIRC, but was not a party to those proceedings, cannot appeal the QIRC’s decision in that matter to the Industrial Court. While, as a result of this decision, employers can no longer apply for a right to be heard in a workers’ compensation appeal commenced by a worker, it remains important for employers to be proactively involved in the workers’ compensation process (including before it gets to the appeal stage) and liaise with the Regulator to stay informed, co-operate and assist the Regulator to defend the appeal. In particular: ► employers may still be required by the Regulator to co-operate and be involved (eg. by providing documents or access to employee witnesses); and 9 ► the outcome of appeals will still impact the employer, especially if an appeal is successful. Such impacts can include impact on workers’ compensation insurance premiums, negative publicity via the published decision and, depending on the injury, potential exposure to a common law personal injury claim. Brisbane City Council v Gillow & Simon Blackwood (Workers’ Compensation Regulator)  ICQ 007 TASMANIA In Fantastic Furniture v B  TASWRCT 11, a forklift driver who injured his foot and subsequently tested positive for cannabis was awarded compensation despite the employer arguing there was a “reasonably arguable case” against the claim. The Commissioner noted that a urine test does not actually detect the psychoactive component of cannabis (THC), so is unable to asset in assessing a person’s level of functioning or impairment. Further, the THC-COOH component that a urine test can detect may be detected up to seven days after the cannabis was used. Given that the test could not establish the worker’s impairment at the time of his injury, Commissioner Chandler found a “reasonably arguable case” did not exist and awarded compensation. “QUEENSLAND EMPLOYERS MUST BE PROACTIVELY INVOLVED IN THE WORKERS’ COMPENSATION PROCESS.” 2016 COMPLIANCE NSW HARMONISED WHS LAWS NOW APPLY TO ONSHORE PETROLEUM SECTOR The NSW Work Health and Safety (Mines) Act 2013 now extends to the onshore petroleum sector, following the passage of the Work Health and Safety (Mines & Petroleum) Legislation Amendment (Harmonisation) Act 2015; and the making of the Work Health and Safety (Mines & Petroleum) Amendment (Harmonisation) Regulation 2016. This completes the harmonisation of WHS laws for the state resources sector. ACT COMPLIANCE BURDEN IN WHS EASED The Red Tape Reduction Legislation Amendment Bill 2016 removes red tape in the Territory’s WHS laws, most importantly the requirement to provide statutory declarations and sign / countersign a range of documents under the Work Health and Safety Act 2011 and the Workers’ Compensation Act 1951. WESTERN AUSTRALIA DELAY IN MODERNISED WHS LAWS The commencement of Western Australia’s Work Health and Safety (Resources) Bill has been pushed back by six months due to delays in drafting that have prevented its introduction into Parliament. Further delays are likely to occur as a result of the Western Australian Parliament’s full legislation program and the upcoming State Government election in March 2017. SOUTH AUSTRALIA SELF-INSURED EMPLOYERS ReturnToWork SA has published a 127- page Code of Conduct for Self-Insured Employers. 201614 TASMANIA WORK HEALTH AND SAFETY COMES TO RIDE-SHARING The Taxi and Hire Vehicle Industries Amendment Bill 2016 seeks to ensure that Tasmania’s sharing economy legislation, which provides for the legal operation of ride-sourcing businesses like Uber, doesn’t undermine work health and safety standards and workplace rights. VICTORIA PENALTIES INCREASE The Treasury and Finance Legislation Amendment Bill 2016 will increase the maximum penalty for a body corporate that recklessly endangers a person at a workplace- in breach of section 32 of the Victorian OHS Act from 9,000 penalty units ($1,365,030) to 20,000 units ($3,033,400). 201612 REGULATOR NEWS NSW SAFETY REGULATOR ACCEPTS FIRST ENFORCEABLE UNDERTAKING The first enforceable undertaking has been entered into in New South Wales under the Work Health Safety Act 2011 (NSW). Two men, the directors of a total of five companies running three pubs in NSW, were alleged to have breached the WHS Act by not ensuring the health and safety of their workers. An off-duty worker who had been drinking at one of the pubs was injured while cleaning beer lines in the cellar of the pub. Beer line cleaning fluid sprayed into the worker’s face after he failed to decompress a keg before cleaning and the keg decompressed while the fluid was being funnelled into it. SafeWork NSW issued 10 improvement notices to the pub after the incident. Part 11 of the WHS Act allows the regulator to accept written undertakings relating to a contravention of the WHS Act. The undertakings are enforceable and a breach of an undertaking is subject to a significant penalty. In the undertaking, the directors committed to over $70,000 on new safety initiatives, such as implementing safety systems, training and procedures across all their hotels. What it means for you An enforceable undertaking is an effective means of voluntary compliance that allows duty-holders to avoid prosecution. However, entering into an undertaking should not be approached lightly. In accepting the undertaking, SafeWork noted the significant steps the directors had already taken to rectify the issues identified. It demonstrates that duty-holders should not consider an undertaking as a way to avoid their obligations under WHS laws. STOP BULLYING TARGET: VICTORIAN SAFETY REGULATOR PARTNERS WITH ANTI-BULLYING ORGANISATIONS The Victorian safety regulator has recognised bullying as a significant issue in Victorian workplaces, citing that of 26,000 injury claims made last year, 1,300 of them involved bullying as a cause. Worksafe Victoria has partnered with two antibullying organisations, Bully Zero Australia Foundation and Brodie’s Law Foundation to deliver a range of education and training sessions to young workers aged 16 to 24 and their employers across Victoria. The sessions will aim to improve awareness of bullying in the workplace, educate employers and employees as to what is and is not bullying, show how it can be prevented, and give guidance about how it can be dealt with. WorkSafe’s Executive Director of Health and Safety, Marnie Williams has said that the “partnership with the Bully Zero Australia Foundation and the Brodie’s Law Foundation will help drive home our message that bullying can never be tolerated”. What it means for you Bullying in the workplace is an increasingly significant issue, it is important that employers understand the need to educate themselves and their employees, encourage reporting of all concerns and treat all complaints quickly and sensitively. Reducing the risk of psychological illness or injury and associated claims not only means a safer and healthier workplace but can significantly reduce WorkCover premiums and the associated significance of these types of injuries. 13 BORDER INSPECTION: NSW AND VICTORIAN REGULATORS PARTNER TO TARGET BORDER CONSTRUCTION There has been a renewed effort by Victorian and NSW safety regulators to increase understanding of interstate safety requirements for construction companies working near the border. Inspectors from WorkSafe Victoria and Safework NSW are working together to ensure that those working on the border between the two states fully understand their obligations under both NSW and Victorian legislation. Inspections took place at residential, commercial and civil construction sites along the NSW and Victorian border and focused on builders, subcontractors and workers. SafeWork NSW Director Regional and Response Operations, Tony Williams, said that “through this project we aim to make it easier for local construction industry businesses to manage safety regardless of which side of the river they are working on”. The partnership is set to continue through 2016. What it means for you Each state has similar work health and safety requirements. However, when your organisation may be subject to multiple requirements, which may slightly differ, it is important to be aware of your obligations and ensure that those working on site are made equally aware. Particular attention must be paid where subcontractors are engaged from different states and where interface issues exist. The key to managing multiple conflicting obligations is clear communication and interface planning. 14 ON THE HORIZON NEW PLANNING ACT 2016 FOR QUEENSLAND The Queensland Government has passed a suite of Acts that will, on commencement, replace and repeal the current Sustainable Planning Act 2009. These include the Planning Act 2016, Planning and Environment Court Act 2016 and the Planning (Consequential) And Other Legislation Amendment Act 2016. The Planning Act will not commence until 25 May 2017. REINSTATEMENT OF VEGETATION PROTECTIONS The Vegetation Management (Reinstatement) and Other Legislation Amendment Bill 2016 would amend a number of Acts including the Vegetation Management Act 1999 that would see the reinstatement of restrictions on the clearing on high-value regrowth and a prohibition on clearing of vegetation mapped as high value agriculture or irrigated high value agriculture. If passed by the Queensland Government, the amendments would have retrospective operation from 17 March 2016. The Agriculture, Resources and Environment Committee was due to report back to the Queensland Parliament on the Bill by 30 June 2016. NSW BIODIVERSITY CONSERVATION REFORMS PROPOSED The NSW Government has released the proposed Biodiversity Conservation Act, and other associated reforms, for public exhibition until late June 2016. The reforms are wideranging and include a new regime for land clearing and management, a new Biodiversity Offsets Scheme that upholds a “like for like or better” offset standard and a risk-based approach to protecting native plants and animals. Phased implementation of the biodiversity conservation reform package is expected across 2016-2017. NEW COASTAL MANAGEMENT REGIME FOR NSW The NSW Coastal Management Act 2016 introduces a new, integrated framework and divides NSW coastal land into four management zones: wetlands and littoral rainforests areas, vulnerability areas, environment areas and coastal use areas. New coastal management programs will be introduced by local councils to establish a long-term management strategy for land within the coastal zones. The Act has received assent, but is not yet in force. A consolidated Coastal Management State Environmental Planning Policy and Manual to guide the operation of the new regime is yet to be published. 15 WORKPLACE SURVEILLANCE LAWS PASSED IN THE ACT The Workplace Privacy Amendment Act 2016 was passed in the ACT in April 2016. The Act allows employers to apply to a magistrate to conduct covert surveillance of a worker outside the workplace where an employer reasonably believes that the relevant employee is committing an offence against a law of the Territory. Surveillance outside the workplace will be restricted to visual surveillance only and in public places. The Act has received assent and will come into force in October 2016. The provisions in relation to surveillance will be reviewed in two years. ITALIAN RESEARCH FINDS THAT INVESTIGATIONS IMPROVE WORKPLACE SAFETY Researchers from the Italian Service of Prevention, Health and Safety at Work (SPISAL) and the University of Padova have found that regulator intervention in workplace incidents reduces workplace injuries and deaths. The researchers found that in the 795 manufacturing workplaces subject to incident related interventions, the all-injuries rate fell by an average of 24% after inspections and severe injuries fell by 36%. QLD Environmental Protection (Chain of Responsibility) Act 2016 Planning Act 2016, Planning and Environment Court Act 2016 and the Planning (Consequential) And Other Legislation Amendment Act 2016. Vegetation Management (Reinstatement) and Other Legislation Amendment Bill 2016 SA Return to Work Act Code of Conduct for Self-Insured Employers 16 LEGISLATION NSW Biodiversity Conservation Act Coastal Management Act 2016 Guidelines for claiming workers’ compensation Work Health and Safety (Mines & Petroleum) Legislation Amendment (Harmonisation) Act 2015 Work Health and Safety (Mines & Petroleum) Amendment (Harmonisation) Regulation 2016 Workers Compensation Amendment (Return to Work Assistance) Regulation 2016 ACT Red Tape Reduction Legislation Amendment Bill 2016 Workers’ Compensation Amendment Act 2016 Workplace Privacy Amendment Act 2016 TAS Taxi and Hire Vehicle Industries Amendment Bill 2016 WA Work Health and Safety (Resources) Bill VIC Treasury and Finance Legislation Amendment Bill 2016 17 18 Saul Harben National Practice Group Leader - Workplace Relations, Employment & Safety Partner, Perth T +61 8 9426 8219 email@example.com Anna Casellas Partner T +61 8 9426 8413 firstname.lastname@example.org Robbie Walker Partner T +61 2 9353 4208 email@example.com Abraham Ash Partner T +61 2 9353 4858 firstname.lastname@example.org Shae McCartney Partner T +61 7 3292 7306 email@example.com Hedy Cray Partner T +61 7 3292 7003 firstname.lastname@example.org Jennifer Wyborn Partner T +61 2 6279 4069 email@example.com Dan Trindade Partner T +61 3 9286 6144 firstname.lastname@example.org Dr Graham Smith Partner T +61 3 9286 6138 email@example.com Stuart Pill Partner T +61 3 9286 6148 firstname.lastname@example.org CONTACTS SYDNEY MELBOURNE PERTH CANBERRA BRISBANE WORKPLACE RELATIONS, EMPLOYMENT & SAFETY 19 Sallyanne Everett Partner T +61 3 9286 6965 email@example.com Claire Smith Partner T +61 2 9353 4713 firstname.lastname@example.org Karen Trainor National Practice Group Leader - Environment & Planning Partner, Brisbane T +61 7 3292 7012 email@example.com Damien Gardiner Partner T +61 3 9286 6529 firstname.lastname@example.org Brendan Bateman Partner T +61 2 9353 4224 email@example.com Nick Thomas Partner T +61 2 9353 4751 firstname.lastname@example.org Kathryn Pacey Partner T +61 7 3292 7475 email@example.com Brad Wylynko Partner T +61 8 9426 8552 firstname.lastname@example.org CONTACTS Persons listed may not be admitted in all States and Territories. This document is intended to provide general information. The contents do not constitute legal advice and should not be relied upon as such. © Clayton Utz 2016 ENVIRONMENT & PLANNING SYDNEY MELBOURNE PERTH BRISBANE Sydney Level 15 1 Bligh Street Sydney NSW 2000 +61 2 9353 4000 Melbourne Level 18 333 Collins Street Melbourne VIC 3000 +61 3 9286 6000 Brisbane Level 28 Riparian Plaza 71 Eagle Street Brisbane QLD 4000 +61 7 3292 7000 Perth Level 27 QV.1 Building 250 St Georges Terrace Perth WA 6000 +61 8 9426 8000 Canberra Level 10 NewActon Nishi 2 Phillip Law Street Canberra ACT 2601 +61 2 6279 4000 Darwin 17–19 Lindsay Street Darwin NT 0800 +61 8 8943 2555 24 www.claytonutz.com
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Keeping you updated on key trends and your due diligence obligations in work health and safety / environment - July 2016
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