Workplace relations & safety bulletin - spring 2013

spring2013 In this issue: Federal Court says damages payable for employer breach of mutual trust and confidence Court says the Privacy Act is not a workplace law Can an employer demand that employees work on public holidays? and more... WORKPLACE RELATIONS & SAFETY bulletin Workplace Relations & Safety - Team Members Derek Humphery-Smith | Partner +61 3 9269 9116 [email protected] Mark Diserio | Partner +61 3 9269 9112 [email protected] Julian Riekert | Partner +61 3 9269 9363 [email protected] Neil Napper | Partner +61 2 8020 7612 [email protected] Patrizia Mercuri | Partner +61 3 9269 9319 [email protected] Andrew Farr | Partner +61 3 9269 9164 [email protected] Mark Sullivan | Partner +61 2 8020 7643 [email protected] Leveasque Peterson | Partner +61 3 9269 9337 [email protected] Daniel Proietto | Partner +61 3 9269 9379 [email protected] Joseph Ryan | Senior Associate +61 3 9269 9355 [email protected] Amie Frydenberg | Senior Associate +61 3 9269 9359 [email protected] Aaron Goonrey | Senior Associate +61 2 8020 7605 [email protected] Paul McKaysmith | Senior Associate +61 2 8020 7691 [email protected] Paul Fowler | Special Counsel +61 3 9269 9212 [email protected] Cassie Brain | Senior Associate +61 3 9269 9190 [email protected] Catherine Berry | Senior Associate +61 3 9269 9540 [email protected] Lindsay Evans | Legal Associate +61 3 9269 9626 [email protected] David Glasgow | Lawyer +61 39269 9639 [email protected] Dru Marsh | Lawyer +61 3 9269 9496 [email protected] The information in this bulletin is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material in this publication can be accepted. Landers’ incident response service call: 0411 111 000 24/7 Kaitlyn Gulle | Lawyer +61 3 9269 9532 [email protected] Georgina Taylor | Lawyer +61 3 9269 9649 [email protected] Yin Chiew | Lawyer +61 2 8020 7809 [email protected] Emily Bowly | Lawyer +61 3 9269 9648 [email protected] Rani Tisseverasinghe | Lawyer +61 3 9269 9376 [email protected] Shane Wescott | Lawyer +61 2 8020 7690 [email protected] Annika Anderson | Lawyer +61 2 8020 7692 [email protected] Gabrielle Guthrie | Senior Associate +61 3 9269 9140 [email protected] Emma Purdue | Lawyer +61 3 9269 9471 [email protected] Joanna Hill | Lawyer +61 3 9269 9518 [email protected] Contents click below to go to each article Employment Federal Court says damages payable for employer breach of mutual trust and confidence ........................................... 3 Court says the Privacy Act is not a workplace law ........................................................................................................................ 5 Court awards damages of $600,000 for workplace bullying ...................................................................................................... 6 Mitigating factors render dismissal unfair ........................................................................................................................................ 7 Amendments to the Fair Work Act to commence 1 January 2014 .......................................................................................... 9 Industrial Relations Can an employer demand that employees work on public holidays? .................................................................................. 11 Dismissal of union officers overturned: a lesson for employers .............................................................................................. 13 Beer giant’s anti-union strategy “a spectacular and unprecedented success”, but not sham contracting ............... 14 Safety and Environment Director liability insurance under siege in South Australian OHS case ................................................................................. 17 Pike River Coal Mine tragedy - an update ................................................................................................................................... 19 The new NEPM on site contamination assessment: Tips for incorporating it into day-to-day HSE compliance ....................................................................................................... 20 Page 2 l Workplace Relations & Safety l Spring 2013 A key event over the past quarter was the change in government following the Federal election. From a workplace relations perspective, and based on the Coalition’s pre-election policy platform, our view is that - for the short term at least - things will effectively remain “business as usual” for employers. In the medium term, we can expect the new government to introduce changes that it took to the election, including: • re-establishing the Australian Building and Construction Commission; • introducing 26 weeks’ paid maternity leave at actual salary (capped at $150,000 p.a.); • amending the new anti-bullying laws so that workers will be required to show they have first sought help from an independent regulatory body before their application is heard by the Fair Work Commission (FWC); and • delaying the superannuation guarantee increases for two years. Another significant development over the past quarter was a Full Court of the Federal Court confirming, by majority, the existence of an implied contractual term of mutual trust and confidence under Australian law. The Full Court upheld an earlier decision of a single judge to award a former employee of the Commonwealth Bank more than $300,000 in damages. We discuss this decision in more detail in our article on page 3. The Commonwealth Bank has applied for special leave to appeal the decision to the High Court. If the application is successful, it will be the first time that the High Court has considered whether the implied duty exists under Australian law. As our regular readers will know, changes to the Fair Work Act 2009 (Cth) which provide for the FWC to hear complaints of bullying are due to commence from 1 January 2014. During the past quarter, our team has provided one hour tailored anti-bullying training sessions for many of our clients. The training is conducted at our clients’ premises and covers the operation of the anti-bullying provisions in the FWC and how this will affect the business, as well as looking at practical and commercial measures to protect businesses and workers from bullying complaints that may end up in the FWC. Following the success of our adverse action masterclass earlier this year, we ran a masterclass session in Melbourne with another one to follow in Sydney (25 October). These half day workshops focus on the legal and practical aspects of workplace investigations, including investigation methodology (planning and documenting the process), understanding your legal obligations and those of the parties involved, and interviewing the parties and witnesses. Given the level of interest from our clients, we are considering conducting a second Melbourne masterclass. If you are interested in attending one of our masterclass sessions, or would like further information on preparing your business for the changes to the Fair Work Act, please speak with your usual Workplace Relations & Safety contact. Last, but not least, a very big thank you to all our readers who responded to our first-ever Bulletin survey. We are currently analysing the feedback you provided and will use this to help ensure that we continue to provide you with relevant and interesting articles on topical workplace relations issues. If you did not get the chance to respond to the survey but would like to send us your feedback, or if you would prefer to receive your copy of the Bulletin by email rather than in hard copy, please let us know: [email protected] Kind regards, Workplace Relations & Safety team Welcome to the Spring edition of the Workplace Relations & Safety Bulletin. Spring 2013 l Workplace Relations & Safety l Page 3 employment to its intranet and email on the same day and required Mr Barker to return his mobile telephone SIM card shortly thereafter. The Bank’s Human Resources department, however, was unaware that access had been withdrawn. Over the following weeks, HR made a number of unsuccessful attempts to contact Mr Barker about redeployment opportunities via his work email and mobile telephone. As the Full Bench of the Federal Court noted, “the left hand of the Bank did not know what the right hand had done until the penny dropped on 26 March 2009”. By that stage, Mr Barker had only one week left in his employment. The Bank elected to extend Mr Barker’s employment by one week, until 9 April 2009. However, Mr Barker was not redeployed and his employment ceased on that date. Mr Barker sought, among other things, compensation arising from the Bank’s failure to give proper effect to its Redeployment Policy. In a landmark decision, a majority of a Full Court of the Federal Court of Australia has confirmed the existence of an implied contractual term of mutual trust and confidence under Australian law. The decision involved an appeal by the Commonwealth Bank of Australia from an earlier decision of a single Federal Court judge recognising the implied term and awarding damages to the applicant. Facts Mr Barker was employed in the role of Executive Manager with the Commonwealth Bank of Australia. On 2 March 2009, the Bank wrote to Mr Barker, notifying him that his position was to be made redundant with effect from the close of business that day. Mr Barker was advised in writing that his employment would cease one month later on 2 April 2009, unless he was successfully redeployed prior to then. In accordance with the Bank’s policy, the letter went on to say: “It is the Bank’s preference to redeploy you to a suitable position within the Bank and we will explore, in consultation with you, appropriate options.” The Bank withdrew Mr Barker’s access Original decision of the Federal Court and appeal Justice Besanko found the Bank was liable to compensate Mr Barker for the loss he suffered as a consequence of the Bank committing a “serious breach” of the Redeployment Policy, even though the Bank’s Employee Handbook expressly stated that its policies were not incorporated into its employment contracts. This case sets the precedent that an employer may, in effect, be contractually held to its own policies and procedures via the “back door” of the implied term, even where the policies and procedures were drafted so as to be excluded from the contract. On appeal, a majority of a Full Court of the Federal Court arrived at substantially the same conclusion via a different route. In dismissing the appeal, the majority did not rely on the Redeployment Policy, but found, taking all the circumstances in to account, that the Bank was still required to consult with Mr Barker and take positive steps to redeploy him. Federal Court says damages payable for employer breach of mutual trust and confidence employment Page 4 l Workplace Relations & Safety l Spring 2013 or seriously damage the relationship of trust and confidence existing between the parties. It may be that the denial of benefits conferred under a policy would have that effect, even if that policy is not incorporated in the contract of employment. Some commentators have highlighted a recent decision of Justice Emerton of the Supreme Court of Victoria in Zafiriou v Saint-Gobain Administration Pty Ltd. In that case, a policy which effectively provided for performance management prior to termination of employment was found to be inconsistent with the employer’s right under the contract to terminate by giving an express amount of notice. This outcome gives rise to the question of whether the implied term recognised in Barker could be avoided - in relation to steps which precede termination which are not otherwise excluded by being “inextricably bound up with dismissal” - by a term entitling the employer to give notice of termination. In Barker, however, the application of the implied term in a way which required positive steps to be taken to redeploy prior to termination was not inconsistent with an express contractual right of the Bank to give notice of termination. To exclude the implied term from a particular contract, including in relation to benefits otherwise conferred by This remains the first case in Australia in which damages have been awarded for a breach of the implied term of mutual trust and confidence. The Bank is seeking special leave to appeal to the High Court. It could be that a dissenting judgment delivered by Justice Jessup, in which his Honour gave reasons for rejecting the implication of the term and considered the jurisprudence from overseas and Australia in the area, will be relied on by the Bank in its submissions should the appeal proceed. Conclusions and relationship with other decisions This decision is significant because it confirms the existence of the implied term in Australian employment contracts and makes clear that damages may flow from a breach of the implied term. The Court did, however, confirm that the implied term does not apply at the point of dismissal or to steps which are inextricably bound up with dismissal. The decision does not clearly define the content of the implied term, with the majority noting that it must be moulded according to the nature of the relationship and the facts of the particular case. An employer should, nevertheless, proceed on the basis that, to give effect to the implied term, it must not engage in conduct likely to destroy policy, an employer should make that outcome express in the contract. We do not think this result can be achieved, which might be thought to follow from Zafiriou, in relation to matters which precede termination (not otherwise inextricably bound up with dismissal) by relying on an express contractual right to terminate on notice. Bottom line for employers • The duty of mutual trust and confidence is implied into all employment contracts in Australia as a matter of law unless expressly excluded by the contract. • Employers may give consideration to amending their employment contracts in order to avoid the implication of this duty. However, the benefits of doing so, in terms of risk mitigation, should be balanced against the message it sends to employees and prospective employees. • Employers should be guided by their own policies and procedures, regardless of whether these are incorporated into the employment contract. Authors Mark Sullivan | Partner Emma Purdue | Lawyer Federal Court says damages payable for employer breach of mutual trust and confidence continued... employment Spring 2013 l Workplace Relations & Safety l Page 5 terminated on the basis that Ms Austin would not accept the authority of her manager. Decision A “workplace law” is defined in the Fair Work Act 2009 (Cth) (FW Act) as one that regulates the relationship between employers and employees. Judge Riley found that: “[at] most, the Privacy Act 1988 incidentally imposes duties on prospective employers to achieve ends that do not primarily concern the regulation of the relationship between employers and employees.” Accordingly, Judge Riley found the Privacy Act was not a “workplace law” for the purposes of the FW Act. Consistent with previous case law on this topic,2 Judge Riley held that a particular provision within an Act or regulation could be said to regulate the relationship between employers and employees, even though the Act or the regulations as a whole did not do so. However, the particular provisions relied on by Ms Austin extended “far beyond” the relationship between employer and employee. Judge Riley rejected Ms Austin’s submission that there was considerable evidence of legislative intention for privacy laws to apply to the employment relationship and that this suggested that the Privacy Act should be a “workplace The Federal Circuit Court considered an adverse action case in which a prospective employee had claimed her offer of employment was withdrawn because she had exercised a workplace right under the Privacy Act 1988 (Cth).1 The Court held that the employer did not take adverse action against the prospective employee when it withdrew its offer of employment, as the Privacy Act is not a workplace law upon which an adverse action claim may be based. Facts Honeywell Ltd made an offer of employment to Ms Austin, whom it had previously engaged intermittently as an independent contractor. Ms Austin claimed that during a pre-employment screening process, Honeywell required her to provide, among other things, an electronic copy of her signature and a digital copy of her passport. Ms Austin declined to provide those things because she was concerned about identity theft and the bona fides of the agent who was engaged by Honeywell to conduct the pre-employment screening. Honeywell withdrew the offer of employment it had made to Ms Austin. Ms Austin claimed that this constituted adverse action because she had exercised a workplace right that arose under a workplace law, namely, the Privacy Act. Honeywell also stopped engaging Ms Austin as an independent contractor and Ms Austin also claimed that this constituted adverse action. After Ms Austin commenced the proceedings, Honeywell did in fact employ Ms Austin for a few months. However, her employment was then law”. Her Honour stated that it could be accepted that identity theft was a growing problem; however the court could only interpret and apply legislation in accordance with proper principles. Consequently, Ms Austin’s application was dismissed. It was also found that Honeywell had discharged its onus and shown that it had terminated Ms Austin’s subsequent employment because of her behaviour towards her manager rather than because of any unlawful reason. Bottom line for employers Determining whether an Act or a particular provision constitutes a “workplace law” is a difficult exercise and will depend on whether the Act or provision can be shown to regulate the relationship between employers and employees. Although in this case the Privacy Act was held not to be a workplace law, employers should be mindful that there are a wide variety of circumstances in which they are at risk of being found to have engaged in adverse action against employees. Authors Amie Frydenberg | Senior Associate Katherine Barrie | Graduate 1 Austin v Honeywell Ltd [2013] FCCA 662 2 ALAEA v Sunstate Airlines (Qld) Pty Ltd [2012] FCA 1222 Court says the Privacy Act is not a workplace law employment Page 6 l Workplace Relations & Safety l Spring 2013 • repeatedly reminded of errors or mistakes; • given very little work to do; • threatened that she would be transferred or have her employment terminated; and • unreasonably deprived of information or equipment that she needed to do her job. The Court found that although the manager’s “bullying behaviour was intermittent; he was never pleasant to the plaintiff or ever affirming of her worth, between episodes.” Findings of liability To make a finding of workplace bullying, the Court needed to be satisfied of an established and persistent pattern of behaviour and a foreseeable risk to health and safety. Legibook submitted that when the plaintiff complained about the bullying, she was offered two options: to either have a formal warning provided to the manager, or to do nothing. Ms Swan chose to do nothing. Legibook therefore claimed to have acted appropriately in the circumstances, having followed Ms Swan’s wishes. The Court, however, did not accept that this was appropriate action and ultimately found that Legibook’s Board, although aware of the situation and disapproving of the manager’s conduct, had failed to further investigate the matter or give directions to the manager about his conduct. The Victorian Supreme Court recently awarded almost $600,000 to an employee who had made a claim for workers’ compensation and negligence for on-going bullying by her manager.1 Facts Ms Swan worked as a part-time assistant for the defendant, Monash Law Book Co-Operative t/as Legibook (Legibook), a not-for-profit organisation that sold law books at discounted prices to law students and was operated by a board of directors. Ms Swan claimed damages for pain and suffering and pecuniary loss from Legibook for a psychiatric injury that she sustained in the course of her employment between 2002 and 2008. The bullying claims It was generally accepted by the Court that Ms Swan’s manager at Legibook behaved in such a way to assert control and power over her, and that throughout the course of her employment Ms Swan was: • regularly put down, insulted or spoken to sarcastically in order to humiliate her; • repeatedly shouted at or screamed at; • spoken to in rude, foul or offensive language; • physical assaulted; • deliberately left out of workplace activities; • excessively scrutinised as to her work and whereabouts; • intimidated and threatened; • ignored when she requested help or advice; • constantly put down when she shared her views and opinions; Therefore, the Court was satisfied that Legibook’s behaviour fell below the reasonable standard of care required from an employer. It found that had Legibook acted “prudently and appropriately” in 2003, it is likely that Ms Swan would not have suffered any (or any significant) psychological harm and that Legibook’s negligence had caused Ms Swan’s injury, loss and damage. The Court assessed Ms Swan’s pecuniary loss at $292,554.38. In relation to pain suffering and loss of enjoyment of life, the Court looked at the severity of Ms Swan’s illness and the impact this had from 2007 and into the foreseeable future, which it assessed as being severe. On this basis, Ms Swan was also awarded damages of $300,000. Bottom line for employers This case highlights the obligations placed on employers to properly investigate and respond to bullying claims, even in circumstances where the employee involved may not wish for the complaint to be taken further. It also serves as a reminder about the various avenues through which a claim for bullying may be pursued, for example in this case it was as part of a claim for workers’ compensation under the Accident Compensation Act. Author Amie Frydenberg | Senior Associate 1 Swan v Monash Law Book Co-Operative [2013] VSC 326 Court awards damages of $600,000 for workplace bullying employment Spring 2013 l Workplace Relations & Safety l Page 7 Mr Novotny’s face to hit a kitchen cupboard. Mr Novotny damaged his teeth, sustained an injury to his jaw and obtained lacerations to his chin. Mr Novotny was also later diagnosed with acute stress reaction. As a consequence of the incident, he was absent from work for a total of 16 shifts. Fire & Rescue NSW charged Mr O’Donnell with misconduct under the Fire Brigades Regulation 2008 (NSW) and the incident was investigated by the Commissioner of Fire & Rescue NSW (Commissioner). Mr O’Donnell pleaded guilty to the charge and acknowledged that his conduct had been highly inappropriate. Shortly after the incident, Mr O’Donnell An employee who was dismissed for misconduct brought a claim of unfair dismissal against his employer. It later turned out that the employee had been suffering mental health issues at the time but had not brought this to the attention of his employer until much later after the event. Although the Industrial Relations Commission agreed that the employee should have advised his employer of his mental health issues at the time, it still found that the dismissal was unfair. Facts Fire fighter, Brendan O’Donnell, was employed by Fire & Rescue NSW and was stationed at the Alexandria Communications Centre. On 6 July 2011, a number of fire fighters were gathered in the mess room for their evening meal. One fire fighter, Pavel Novotny, had offered to cook pizzas for the crew and was in the process of doing this when Mr O’Donnell walked over to him and shoved him in the back, causing was diagnosed with post-traumatic stress disorder and depression as a result of unrelated incidents, but he did not bring this to the attention of the Commissioner. In fact, Mr O’Donnell indicated to the Commissioner that he had nothing further to add in his defence to the charge of misconduct. The Commissioner dismissed Mr O’Donnell from his employment, having found that Fire & Rescue NSW could no longer have trust and confidence that he would conduct himself in an acceptable and professional manner. Mr O’Donnell brought an application for reinstatement before the New South Wales Industrial Relations Commission (IRC) on the ground that his dismissal was harsh, unjust or unreasonable. Mitigating factors render dismissal unfair Page 8 l Workplace Relations & Safety l Spring 2013 employment account as a mitigating factor. No absolute rule can be laid down about this; it will depend on such matters as the nature of the illness, whether the illness is likely to cause a recurrence of the conduct, whether the individual has recovered from the illness and the nature of the conduct itself that led to the decision to dismiss.” The Full Bench acknowledged that the first time Fire & Rescue NSW could have become aware of Mr O’Donnell’s mental health issues was when a medical certificate noting a “medical condition” was faxed to it, and then later when Mr O’Donnell lodged a workers’ compensation claim. Despite the onus being on Mr O’Donnell to bring his illness to the attention of Fire & Rescue NSW, the Full Bench found that Mr O’Donnell’s mental illness diminished his mental capacity to deal with stressful situations and so, on balance, the dismissal was harsh. The Full Bench also had regard to the fact that Mr O’Donnell had 24 years of good service, was 46 years of age at the time of the incident, was married with three young children and had demonstrated remorse. Decision At first instance, the IRC found that the termination was not harsh, unreasonable or unjust because, at the time the decision was made to terminate Mr O’Donnell’s employment, the circumstances surrounding Mr O’Donnell’s mental illness were not available to Fire & Rescue NSW. On this basis, Commissioner Tabbaa found that Mr O’Donnell had been afforded procedural fairness. However, Commissioner Tabbaa’s decision was overturned on appeal to a Full Bench of the IRC. The Full Bench found that, in determining whether the dismissal was harsh, unreasonable or unjust, Commissioner Tabbaa had failed to consider the medical evidence that Mr O’Donnell was suffering from a mental disorder at the time of the incident and the role it played in contributing to his actions. The Full Bench noted, “[t]here can be no doubt that in considering whether a dismissal from employment was harsh, mental illness may be required to be taken into Mitigating factors render dismissal unfair continued... The Full Bench remitted the matter to Commissioner Tabbaa to determine whether Mr O’Donnell could be employed in another suitable position within Fire & Rescue NSW. Bottom line for employers When an employee is under investigation for misconduct, employers should take into account any mental illness or other mitigating factors that may have affected the employee’s behaviour. Although this case suggests that the onus is on the employee to bring any mitigating factors to the attention of the employer, it would be prudent for an employer to make further enquiries into any issues that the employee may be suffering, particularly when the employee under investigation is on personal leave. Authors Amie Frydenberg | Senior Associate Emily Bowly | Lawyer Spring 2013 l Workplace Relations & Safety l Page 9 employment the lunch room as the default area and limiting the right of entry where a modern award or enterprise agreement does not cover a particular union by demonstrating their interest. Accommodation and transport arrangements for right of entry in remote areas A new provision will commence which will deal with situations where a union, a union officer and employer have been unable to reach agreement on accommodation and transport arrangements to facilitate right of entry in remote areas. A remote area is defined as an area where accommodation or transport is not readily available to the union officer unless the employer provides it. Under the new provisions, the employer will be required to enter into an accommodation and/or transport arrangement with the union if the following conditions are satisfied: • the provision of accommodation/ transport to the union officer would not cause the employer undue inconvenience; The Fair Work Amendment Act 2013 (Amendments) received Royal Assent on 28 June 2013. This article provides an overview of some of the more important Amendments that will take effect from 1 January 2014 and which may be expected to affect a large number of employers. Union right of entry One of the major changes to the Fair Work Act 2009 (Cth) (FW Act) involves a change to the location of meetings held by unions. Under the current provisions, a union officer, when exercising a right of entry, must comply with a reasonable request by the employer to conduct interviews or hold discussions in a particular room or area of the premises or to take a particular route to reach a particular room or area of the premises. From 1 January 2014, a union officer must hold any discussions or interviews in a room or in an area of the premises agreed with the employer. Where the parties cannot reach agreement, under the new provisions the interviews/ discussions will take place in a room or area that is provided by the employer for employees to take their meal breaks and is ordinarily used for that purpose (ie the lunch room). The new government may be expected to seek to ameliorate the effect of the changes to right of entry as foreshadowed when it was in opposition. This may include repealing • the union officer or the relevant union requests the accommodation/ transport for the purpose of exercising a right of entry; • the request for transport/ accommodation is made within a reasonable period before it is required; and • the union officer and the relevant union have been unable to enter into an accommodation arrangement. The employer is entitled to charge the permit holder for the cost of providing the transport/accommodation, however the FW Act makes clear that an employer cannot charge more than is necessary to cover the cost. These Amendments also extend the scope of the Fair Work Commission’s (FWC) powers to deal with disputes about these issues. The FWC will have power to deal with disputes concerning whether accommodation/transport is reasonably available, whether it would cause undue inconvenience to the employer and whether the request to provide transport/accommodation was made within a reasonable period before required. Amendments to the Fair Work Act to commence 1 January 2014 employment Page 10 l Workplace Relations & Safety l Spring 2013 Arbitration of general protections and unlawful termination claims A dismissed employee bringing a general protections claim will have the option of having the dispute arbitrated by the FWC where the initial conference fails to resolve the dispute and where the employer agrees. The FWC’s powers in relation to arbitration include making an order for reinstatement, payment of compensation and payment for lost remuneration. Anti-bullying jurisdiction of the Fair Work Commission The new anti-bullying jurisdiction of the FWC was explained in our recent eBulletin.1 Key points for employers to note are: • the FWC has jurisdiction to deal with workers who have been subjected to bullying; • the definition of a worker is very broad and includes employees, contractors, trainees and volunteers; • the FWC has broad power to “make any order it considers appropriate” to stop bullying. A breach of such an order would attract a penalty of up to 60 penalty units; Consultation about changes to rosters or working hours The Amendments also introduce additional mandatory consultation terms in modern awards and enterprise agreements. While an obligation to consult about workplace change already exists, there is now a requirement for modern awards and enterprise agreements to include a term that requires an employer to consult employees in relation to changes to employees’ regular rosters or ordinary hours of work. There is also a requirement to include a term allowing for representation of employees for the purpose of the consultation. Under these Amendments, both modern awards and enterprise agreements must include a term that requires the employer: • to provide information to the employees about the change; • to invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and • to consider any views given by the employees about the impact of the change. • there is an obligation on the FWC to promptly deal with applications in relation to anti-bullying (within 14 days after an Application is made); and • the FWC cannot order the payment of money. The FWC’s new bullying jurisdiction is in addition to the existing provisions in federal and state work health and safety legislation. The new Federal Coalition government is also expected to seek future changes to this new regime. When in opposition, it wanted workers to be encouraged to take reasonable steps to resolve their concerns, before elevating them to the FWC and proposed that the applicant be required to see preliminary help, advice or assistance from an independent regulator. If the worker’s concern remained unresolved, then he or she would be able to make an application to the FWC. In addition, it wanted the conduct of union officials towards manager, employers and workers to also be covered by the new jurisdiction. Authors Amie Frydenberg | Senior Associate Angela Woodward | Graduate 1 “Fair Work Commission to hear anti-bullying complaints under new laws” (21 May 2013) - see the Publications section of our website www.landers.com.au Amendments to the Fair Work Act to commence 1 January 2014 continued... industrial relations Spring 2013 l Workplace Relations & Safety l Page 11 Both parties in this case accepted that the New Roster was otherwise valid under the relevant enterprise agreement. Mt Arthur argued that the request for employees to work on public holidays that happen to fall during their roster was reasonable because of the operational requirements of the mine, which demanded continuous work on public holidays. It argued that management could not rely on employees volunteering to work on public holidays to serve its operational requirements. The CFMEU counter-argued, among other things, that the New Roster was unreasonable because it demanded an increased workload for employees and that no other mine in the region required its employees to work on public holidays. It argued that the employees, as a group, could collectively refuse to work on public holidays because the In a recent decision,1 the Fair Work Commission (FWC) found that Mt Arthur Coal Pty Ltd had acted reasonably in requesting that its employees work on certain public holidays under a new roster arrangement.2 Facts Mt Arthur introduced a new work roster (New Roster) which required certain coalmine employees to work on public holidays. The Construction, Forestry, Mining and Energy Union (CFMEU) brought an application to prevent the implementation of the New Roster on the basis that it breached section 114 of the National Employment Standards (Section 114). Section 114 entitles employees to be absent from work on a public holiday unless the employer reasonably requests that an employee work that day. The onus of proof is on the employer to show that its request is reasonable. If the employer can show a reasonable request to work, the onus of proof then shifts to the employee, who is permitted to refuse the employer’s request if that refusal is reasonable. request contravened Section 114. It also argued that, just as Mt Arthur had made a general request for employees to work on public holidays, each individual employee could make a general refusal. In his decision, Commissioner Roberts identified three key questions to be determined. 1. Was Mt Arthur’s general request that relevant employees attend for work on public holidays which fall on a rostered work day a reasonable request under Section 114? 2. Did the employees collectively have a reasonable basis under Section 114 to refuse to work on any or every public holiday which falls on a rostered work day? 3. Could the employees individually refuse to work on every public holiday which falls on a rostered work day? Can an employer demand that employees work on public holidays? Page 12 l Workplace Relations & Safety l Spring 2013 industrial relations employee’s refusal were provided to Mt Arthur during this consultation period. All reasons were general in nature. • Employees who work on public holidays are entitled to triple pay. The Commissioner did not accept the CFMEU’s argument that the New Roster contravened Section 114, as there is nothing in the provision which specifically prohibits employees working on public holidays. Finally, the Commissioner found that none of the employees’ general refusals to work on public holidays were reasonable because they did not refer to specific events or personal circumstances that would justify a refusal. Commissioner Roberts found that a refusal will only be reasonable if it relates to personal circumstances or a specific event at the relevant time at which an employee is required to work. In this regard, the Commissioner noted that Mt Arthur had approved some employees’ past refusals to work on a public holiday for reasons that referred to that specific holiday, but general refusals could not be made. Decision Commissioner Roberts found that Mt Arthur’s request was reasonable, based on a number of relevant facts relating to this dispute. • The Mt Arthur mine operates 24 hours a day, seven days a week, so the request is an operational requirement for the business. The Commissioner determined that this supported a sound business case for the general request. • Under the New Roster, an employee is given sufficient notice (at least four weeks) to make appropriate personal arrangements if he/she is not required to work on a public holiday. • The relevant enterprise agreement specifically permitted the New Roster. • Each employee was given a written letter of offer prior to accepting employment. This letter of offer informed each employee that rosters were subject to change. • Mt Arthur consulted extensively with employees before implementing the New Roster, including the need for employees to work on public holidays. No specific reasons for an Can an employer demand that employees work on public holidays? continued... Bottom line for employers An employer may require an employee to work on a public holiday if the request has a sound operational basis, and the employee has a right to refuse to work on reasonable grounds. When assessing an employer’s request, the FWC may look at factors including any notice of the request given to employees, public holiday rates paid to employees and whether the request reflects the true operational requirements of the business. An employee’s refusal to work under Section 114 must relate to the specific circumstances of a particular public holiday and not be general in nature. Author Amie Frydenberg | Senior Associate 1 Construction, Forestry, Mining and Energy Union v Mt Arthur Coal Pty Ltd [2013] FWC 2548. 2 The new working roster demanded shot firers and field maintenance personnel to work a 4x12 hour roster. The roster required employees to work on a public holiday if that public holiday fell on their work roster. Spring 2013 l Workplace Relations & Safety l Page 13 industrial relations on findings that Mr Adams had engaged aggressive and threatening towards Mr Cramond. BHP, through a new general manager and site senior executive, issued ‘show cause’ letters to the two union officials, as it considered that the District Court’s judgment showed Mr Adams and Mr Winter had breached BHP’s Workplace Conduct Policy. BHP subsequently dismissed Mr Adams and Mr Winter. In dismissing the union officials, BHP cited and relied on the District Court judgment as evidence of conduct amounting to harassment and bullying within the meaning of BHP’s Workplace Conduct Policy, despite their earlier internal investigation finding there was insufficient evidence to support Mr Cramond’s complaint. In responding to the CFMEU’s claim that it had taken prohibited adverse action against the union officials, BHP asserted that the sole reason for terminating their employment was because the threatening behaviour towards Mr Cramond constituted workplace bullying and harassment. Justice Collier rejected BHP’s assertions and found that the dismissals were due, at least in part, to the employees’ status as union officials. Decision The Federal Court found in favour of the CFMEU, holding that the conduct of the union officials towards Mr Cramond The Federal Court recently handed down a decision that has implications for employers when investigating allegations of misconduct and terminating the employment of employees who are union members or officials. Justice Collier found that BHP Coal Pty Ltd had breached the Fair Work Act (FW Act) in terminating the employment of two Construction, Forestry, Mining and Energy Union (CFMEU) officials, holding that BHP had failed to discharge its onus of proving the dismissals were not because the men were union officials. Facts The two men, Kevin Adams and Justin Winter, held the positions of vice president and secretary/treasurer of the CFMEU’s Peak Downs Lodge in Central Queensland. In 2008, they were involved in a dispute with Robert Cramond, an employee of BHP, after Mr Cramond terminated his membership of the CFMEU as a result of changes to a housing policy. Mr Cramond alleged that following the termination of his membership of the Union, Mr Adams and Mr Winter bullied him when discussing his decision to resign from the CFMEU. BHP conducted an internal investigation into Mr Cramond’s complaints in 2008, concluding that there was insufficient evidence to support them. Subsequently, Mr Adams initiated action in the District Court of Queensland claiming that in making the allegations to BHP, Mr Cramond had defamed him. The District Court dismissed the defamation action and criticised Mr Adams’ evidence. Part of the reasoning in dismissing Mr Adams’ claim centred could not be described as angry, aggressive, bullying, harassing or coercive. At least part of the reason for their dismissal, according to Justice Collier, was that the officials acted in the course of their respective roles as union officers to try to persuade Mr Cramond to rejoin the Union. Justice Collier was also critical of the conduct of BHP in providing assistance to Mr Cramond in the defamation proceedings and then relying on the judgment delivered in those proceedings to dismiss the officials more than three years after its own initial investigation had cleared them of the same conduct. Bottom line for employers In adverse action claims, a reason given by an employer to dismiss an employee will be assessed in light of all the facts. Employers need to ensure that any termination of employment is for a valid reason and that they can demonstrate that the decision to terminate was not based on any reasons prohibited by the FW Act, such as an employee’s industrial activity. Authors Paul McKaysmith | Senior Associate Shane Wescott | Lawyer Dismissal of union officers overturned: a lesson for employers Page 14 l Workplace Relations & Safety l Spring 2013 industrial relations Pty Ltd, with financial assistance from Tooheys. Following the establishment of Feyman, Tooheys offered its electrical tradespersons redundancies under the “reasonably generous” Tooheys scheme. Approximately 19 to 21 electrical tradespersons took up this offer, finishing their employment with Tooheys one day, and commencing work on the site as employees of Feyman the next. When an ATO ruling found that the Tooheys redundancies were not genuine redundancies for taxation purposes, Tooheys agreed to pay the differential tax treatment in addition to the redundancy payments. The Fair Work Commission has found that a creative strategy adopted by Tooheys Pty Ltd designed to reduce union activity at its Lidcombe site was not sham contracting, despite noting that views will differ on whether motivation was “honourable, reasonable or rational”.1 Facts Tooheys (a wholly owned subsidiary of Lion Nathan) has for many years operated a beer brewing and packaging site in Lidcombe, New South Wales. In 1991, as part of a management strategy designed to “break the grip” of union activity and union-imposed work restrictions at the site, Tooheys’ management asked the Electrical Trade Union (ETU) delegate based at the site to set up a company which would employ Tooheys’ electrical tradespersons and provide their services back to Tooheys. The ETU delegate agreed, and established a company, Feyman After initially seeking to replace the mechanical tradespersons using the services of two different labour hire companies, Tooheys eventually asked its Maintenance Supervisor to arrange for some of the experienced LTU staff who had been made redundant to come back and supply labour, including through a company he managed (and later became a director of), Proden Pty Ltd. This was done, and Proden became the sole provider of brewery technicians, while Feyman continued to provide other tradespersons. In June 1994, a company called FP Group Pty Ltd (“FP” standing for Feyman and Proden) was created, Beer giant’s anti-union strategy “a spectacular and unprecedented success”, but not sham contracting Spring 2013 l Workplace Relations & Safety l Page 15 industrial relations was referred to as “extraordinary” by the Fair Work Commission), the ten workers each lodged two unfair dismissal applications - one against FP Group, and one against Tooheys. As a result, an issue arose regarding whether Tooheys or FP Group was the workers’ employer. Tooheys argued that FP Group was the workers’ employer, while FP Group argued that the arrangement between it and Tooheys to supply labour was a “sham contracting arrangement” designed exclusively to circumvent union-imposed work practices, and that Tooheys was the workers’ real employer. The Fair Work Commission’s decision Deputy President Sams found that the arrangement between Tooheys and FP Group was not a sham contracting arrangement, and that the workers were employees of FP Group. which continued to supply labour to Tooheys under various agreements. In mid-2011, following a contractual dispute with FP Group, Tooheys sought tenders for the ongoing supply of its contract labour requirements. Around the same time, Tooheys carried out a restructure which resulted in numerous positions supplied by FP Group no longer being required. In October 2011, Tooheys advised FP Group that it had been unsuccessful in its tender bid, and in January 2012, Tooheys terminated its agreement with FP Group. While many of FP Group’s former workers were engaged by the new labour provider to continue providing services at the site, ten FP Group workers were no longer required by Tooheys. With the assistance of FP Group’s General Manager (whose intervention The Deputy President stated that it was “utterly unsurprising” that the employees were keen to sign up with the new company, given that the redundancies offered by Tooheys were a “windfall of very significant proportions, in circumstances where the employees ceased to be employed by Tooheys one day and returned to work the next day to perform exactly the same duties, with the same pay and benefits; albeit without the work restrictions Tooheys had craved to eliminate”. While describing the scheme as “a spectacular and unprecedented success”, the Deputy President noted that “whether the motivation of Tooheys was honourable, rational or reasonable is not open for debate here. Views will no doubt differ on the subject.” In concluding that the workers were employees of FP Group, and not employees of Tooheys, the Deputy President looked at the entirety of the Page 16 l Workplace Relations & Safety l Spring 2013 industrial relations refresher inductions were required every twelve months for FP Group workers, and only every three years for Tooheys’ employees, and this generally reflected a “typical labour hire arrangement”; - while Tooheys’ managers or supervisors could sit in on interviews between FP Group and potential employees, there was no evidence that Tooheys’ personnel could veto any individual’s employment by FP Group, even if the individual was not suitable for work at a Tooheys site; - the workers entered into employment contracts with FP Group, and not with Tooheys; - although Tooheys could - and did - request workers be removed from the site by FP Group, it never asked for a worker to be terminated; - rosters for FP Group personnel were prepared by FP Group administrators (not Tooheys); - FP Group workers wore clothing emblazoned with the FP Group logo, to differentiate them from Tooheys’ personnel; and - although FP Group workers had access to Tooheys’ canteen, gym, car park, bar and store, so did all other contractors on the site, in accordance with sound industrial relations practice. relationships between the parties, and noted the following: • FP Group entered into an enterprise agreement covering its workforce, which was certified by the Australian Industrial Relations Commission; • the workers continued to be paid by FP Group “for some considerable time” after the alleged date of termination by Tooheys in October 2011; and • “control” over the workers was exercised by FP Group, and not Tooheys, in that: - the workers’ applications for leave continued to be approved by FP Group following the alleged termination by Tooheys; - although the workers were expected to work as part of a Tooheys work team under the supervision of a Tooheys supervisor, the Tooheys supervisor only directed the workers regarding what work was to be done, and when and where to perform it, and not “how” the work was to be completed (as evidenced by the fact that directions were sometimes given by a Tooheys supervisor with a background in one trade, to a FP Group worker working in a different trade); - although Tooheys required FP Group’s workers to complete its induction and other training, a “clear point of distinction” was that Beer giant’s anti-union strategy “a spectacular and unprecedented success”, but not sham contracting continued... The Deputy President also rejected an alternative submission by FP Group that the workers were “jointly employed” by both FP Group and Tooheys, noting that he was of the same view as other members of the Commission, “that until there is clear statutory or judicial guidance on the principles of joint employment in the Australian context, it would be prudent for the Commission to proceed with extreme caution before adopting the concept to a particular set of circumstances.” Bottom line for employers Employers should be aware that their relationships with labour hire providers, and not just with independent contractors, may face accusations of “sham contracting”. If necessary, employers should consider seeking legal advice to ensure that their documentation and practices reflect a true labour hire provider/client relationship. Additionally, employers should act in the knowledge that any personnel or industrial relations strategy adopted could potentially become public, even years later. Authors Paul McKaysmith | Senior Associate Annika Anderson | Lawyer 1 Brian Henry & Others v FP Group Pty Ltd and Tooheys Pty Ltd [2013] FWC 2813. Spring 2013 l Workplace Relations & Safety l Page 17 safety and environment Ferro Con was charged with failing to ensure, so far as was reasonably practicable, that the riggers were safe while at work. Mr Maione was prosecuted for having failed, as the responsible officer, to take reasonable steps to ensure compliance by Ferro Con of its obligations under the Act. Ferro Con and Mr Maione pleaded guilty to the charges. Decision In making his decision1, Magistrate Lieschke found the offences to be very serious breaches of the Act. His Honour determined that Ferro Con simply relied on the experience of workers and hoped that they would individually and collectively make the right decisions on an informal and ad hoc basis. Mr Maione failed to take an active role in checking the systems of work. In a recent decision of the South Australian Industrial Court, a Magistrate has roundly criticised a situation in which a director who was indemnified through his company’s general indemnity insurance has avoided direct payment of a fine relating to a fatal workplace accident. Following the decision, the South Australian Attorney-General has indicated he will raise the issue with the Federal government and consider other potential solutions at state level. Facts In July 2010, a 35 year old rigger was assisting a crane to lift a 1.8 tonne steel monorail beam onto the rafters of a building during the construction of the Adelaide Desalination Water Plant when the soft slings holding the beam snapped, causing the beam to fall on his head inflicting fatal injuries. Another rigger escaped injury. Both riggers were employed by Ferro Con (SA) Pty Ltd. As a consequence of the incident, Ferro Con and its sole director, Paulo Maione, were charged with breaches of the (now repealed) Occupational Health, Safety and Welfare Act 1986 (SA) (Act). When considering an appropriate fine, Magistrate Lieschke took into account the fact that Ferro Con had a general company insurance policy in place which granted indemnity to a director for fines imposed for criminal conduct. The cover extended to a criminal penalty but not an award of consequential damages. Prior to sentencing, the insurer agreed to pay any potential fine that was to be imposed on Ferro Con and/or Mr Maione. Although his Honour noted that the Act did not prohibit insuring for criminal penalties, he refused to reduce the fines against the company and the director on the basis that both had expressed regret and remorse over the offences upon the plea. His Honour found that an expression of regret and remorse assumed a genuine acceptance of criminal responsibility Director liability insurance under siege in South Australian OHS case and a preparedness to accept the consequences that flowed from the wrongdoing. In his Honour’s opinion, Ferro Con and Mr Maione had not done so by taking positive steps to avoid acceptance of the legal consequences of their criminal conduct by successfully calling on the insurer to pay their fines. Accordingly, Magistrate Lieschke imposed a fine of $200,000 on Ferro Con and Mr Maione respectively. As Ferro Con was in liquidation, Mr Maione personally paid the excess of $10,000 on the company’s general insurance policy that also indemnified him as a director. Mr Maione was also ordered to pay $20,000 in compensation to the deceased’s family that was not covered by the insurance policy. Bottom line for employers The Ferro Con decision is particularly concerning for companies and directors as it suggests that when a director has been found to have breached work, health and safety (WHS) laws, the courts should Page 18 l Workplace Relations & Safety l Spring 2013 safety and environment Director liability insurance under siege in South Australian OHS case continued... impose a greater fine or penalty where the director is able to successfully call upon the company’s insurance policy in relation to any fine. There is currently no statutory prohibition on employers purchasing general company or directors and officers (D&O) liability insurance that covers criminal penalties for breaches of WHS laws, however it is generally accepted that any terms in an insurance policy providing indemnity for criminal liability are usually void.2 That said, the law in this area is uncertain and calls have been made for the legislature to clarify the legal position. Nonetheless, insurers reasonably and lawfully continue to offer and pay out claims under general company and D & O liability insurance for indemnity against criminal penalties. It should be emphasised that neither type of policy in any way removes or lessens a duty holder’s specific WHS statutory obligations. Instead, these policies are commercial instruments designed to manage business contingencies for companies and directors working in, for example, high-risk industries. Consideration of such policies might be prudent in some circumstances, particularly in light of increased penalties for companies and officers under the model WHS laws. If you are in doubt as to the extent of cover or specific exclusions of your general company or D&O liability insurance policy in the context of a WHS incident or breach of WHS laws, check with your insurer and seek legal assistance where appropriate. Authors Paul Fowler | Special Counsel Emily Bowly | Lawyer 1 Ferro Con (SA) Pty Ltd (In Liquidation) v Maione [2013] SAIRC 22. 2 Burrows v Rhodes [1899] 1 QB 816 cited and approved by Hope JA in Australian Aviation Underwriting v Henry (1988) 12 NSWLR 121. penalty of NZ$4,170,000. The Court also noted that it could not put a value on the loss of life nor compensate for the psychological harm suffered. Although the company had been in receivership since December 2010, the Court was satisfied that the company’s biggest secured shareholder, New Zealand Oil and Gas, may be in a position to pay the balance of the reparations if the company was not in a position to do so. A Royal Commission was established as a result of the tragedy. Among other things, it identified that New Zealand’s work health and safety laws and The following is an update to the article which appeared in our Winter 2013 Workplace Relations & Safety Bulletin. The owner of New Zealand’s Pike River Coal Mine, which exploded on 19 November 2010 killing 29 men, has now been sentenced for its criminal safety failures. Mine owner Pike River Coal Ltd was convicted of nine criminal charges under the Health and Safety in Employment Act 1992 (NZ). It was sentenced in the Greymouth District Court on 5 July 2013. Pike River was fined NZ$760,000 for the nine criminal charges and ordered to pay reparations totalling NZ$3,410,000 to the 29 victims and two survivors, making a total pecuniary their administration and enforcement required major reform. As a result of the Commission’s recommendations and the findings of an independent taskforce commissioned by the Federal government in response to the Commission’s recommendations, New Zealand will introduce new WHS laws based on Australia’s model WHS laws by December 2014. Authors Paul Fowler | Special Counsel Georgina Taylor | Lawyer Spring 2013 l Workplace Relations & Safety l Page 19 safety and environment Pike River Coal Mine tragedy - an update Asbestos characterisation and contamination assessment This iteration of the NEPM includes a new section addressing asbestos characterisation in the context of soil The revised National Environment Protection (Assessment of Site Contamination) Measure 1999 (NEPM) enacted in May 2013 is intended to deliver a uniform approach to contaminated site assessment across Australia. Reflecting 10 years of advances in the science of contamination, the 22 volumes and 1274 pages of highly technical guidelines will be a challenge even for the most experienced land contamination experts to digest.1 DON’T PANIC! Despite its imposing presence, the NEPM has been specifically designed to improve transparency in the site assessment process, avoid overly technical language and offer practical examples for addressing site contamination issues. The introduction of asbestos contamination assessment and basing all investigations on a site conceptual model should make contamination issues more comprehensible to relevant decisionmakers. While the express purpose of the NEPM is limited to site assessment, it nonetheless may provide HSE managers with a useful guide to identify and manage soil contamination risks. What is a National Environment Protection Measure? The National Environmental Protections Measures are a set of national environmental objectives negotiated by agreement between the Commonwealth and the Australian states and territories through the Council of Australia Governments (COAG). Each measure is supported by model legislation at the Commonwealth level then incorporated into state and territory jurisdiction, much like the Work Health and Safety model laws. The measures focus on environmental issues that have a trans-boundary dimension where uniformity between jurisdictions is desirable. Examples of other measures in place include the movement of hazardous waste across borders, the national pollutant inventory and the management of used packaging. contamination. Asbestos contamination issues in general are subject to highly specific legal obligations under both environmental and safety legislation, however, there has been less clarity in the past as to the status and management of asbestos materials within soil. Page 20 l Workplace Relations & Safety l Spring 2013 safety and environment The new NEPM on site contamination assessment: Tips for incorporating it into day-to-day HSE compliance The inclusion of a specific asbestos assessment method (Vol 2, s 4; Vol 3, s 11) is based largely on Western Australia’s asbestos soil guidelines and may also provide a useful compliance guide for the day to day management of site operations. The NEPM approach is very pragmatic with the primary method being based on inspection of visual fragments on the soil surface from materials that commonly contain asbestos, including cement sheeting and piping and components of electrical equipment such as power boards. Both environmental and safety managers should familiarise themselves with these sections of the NEPM as part of their overall management of site asbestos issues. Day-to-day environmental management Developing an effective environment management system starts with the identification of activities that may affect the environment (both positively and negatively) and the proximity of each to the footprint of the activities (e.g. exposure to site soils, neighbouring properties, adjacent sensitive areas etc). Spring 2013 l Workplace Relations & Safety l Page 21 safety and environment The new NEPM requires investigations be guided by a “conceptual site model” for each site (Vol 3, s 4), which integrates site-specific factors to predict where contamination is likely to exist. Although primarily triggered by site development and planning activities, this new feature may provide a useful framework for a site HSE manager to conduct a “health check” of their site’s activities, create a baseline of site contamination or identify any knowledge gaps for the site. While the new NEPM provides an attractive tool for HSE managers to assess and address potential site contamination issues outside of the usual development triggers, it is also important to understand that conducting any kind of site assessment may give rise to certain reporting obligations in each jurisdiction.2 Bottom line for employers Where you decide that an internal site assessment is warranted, you should consider whether the findings of an investigation can be protected through a voluntary environmental audit. This process, where available, will protect your company from potentially negative consequences arising from what is otherwise a proactive and commendable action and will, to varying degrees, prevent a regulator from relying on any documentation you generate as a result of the internal audit.3 Care must also be taken to ensure that, where it is available, legal professional privilege is also maintained over internal investigations that are being undertaken for the purpose of obtaining legal advice. Authors Paul Fowler | Special Counsel Dru Marsh | Lawyer 1 For more information on when the NEPM will commence operations and the transitional arrangements in place, see our Environment ebulletin dated 15 August 2013 http://www.landers.com.au/ Publications/PlanningEnvironment/Publicationdetail/ tabid/383/ArticleID/678/Default.aspx 2 For more information on reporting requirements, see our Environment ebulletin Pollution incident notification - are you ready to respond to an environmental incident? http://www.landers.com.au/ Publications/PlanningEnvironment/Publicationdetail/ tabid/383/ArticleID/667/Default.aspx 3 For more information on conducting protected environmental audit, see our WR&S Summer Bulletin 2013, Environmental due diligence - are the findings of your voluntary environmental audit protected? http://www.landers.com.au/Portals/0/Publication%20 PDFs/Bulletin_Summer2013.pdf , p. 19-20 www.landers.com.au Melbourne Level 12, Bourke Place 600 Bourke Street Melbourne VIC 3000 T +61 3 9269 9000 F +61 3 9269 9001 Sydney Level 19, Angel Place 123 Pitt Street Sydney NSW 2000 T +61 2 8020 7700 F +61 2 8020 7701