18 minute read
AMTIL FORUMS
from AMT APR/MAY 2022
by AMTIL
What Victoria’s new environment protection law means for OHS
The new Victorian Environment Protection Act enacted last July, has changed how Victoria regulates pollution, waste and contamination from businesses. The Australian Institute of Health & Safety explains.
Victoria’s new Environment Protection Act 2017, which came into force on July 2021, is the biggest change in environment protection legislation since the original Environment Protection Act 1970, according to health & safety, environment and emergency management consultancy Greencap. The new Act has enhanced powers to prevent risks to the environment and human health, with a change of focus from responding to pollution (or “cleaning up after a spill”) to preventing the pollution in the first place, said Jean Meaklim, Senior Principal Consultant with Greencap. “It is based on similar principles to the Occupational Health & Safety (OHS) Act, where a person or business has to assess their business activities for risks to health and the environment, put in place safeguards to prevent or manage the risks before they happen, and provide training and supervision to staff to work with the safeguards to protect health and the environment,” said Meaklim, who presented on Victoria’s new environment protection legislation together with Peter Oxnam, Greencap principal consultant – environment, as part of an Australian Institute of Health & Safety (AIHS) webinar held in February. General Environmental Duty: Criminally enforceable The General Environmental Duty (GED) is a centrepiece of the new laws and Meaklim said it applies to all Victorians. “If you conduct activities that pose a risk to human health and the environment, you must understand those risks, and you must also take reasonably practicable steps to eliminate or minimise them,” said Meaklim. “In an Australian first, the GED is criminally enforceable.” The GED is similar to the duty under the Victorian Occupational Health & Safety Act 2004 Section 21, where employers have a duty to provide and maintain a working environment that is safe and without risks to health, whereas the GED requires risk assessment, mitigation and training to maintain workplaces that are safe to health and the environment. “The Environment Protection Authority (EPA) said they will support businesses that have taken reasonable steps to understand and meet their obligations under the Act. They will also support businesses that must make major changes to their compliance obligations,” said Meaklim. However, for those who haven’t attempted to understand or follow the new laws, Meaklim said the EPA will act to ensure obligations are met. “The EPA can now issue stronger sanctions and penalties to hold environmental polluters to account,” she said. Another new concept is the ‘state of knowledge’, which Meaklim says is all the information businesses should reasonably know about managing your business’ risks, including an understanding of risks your business may pose to human health and the environment, and steps you should take to eliminate or reduce those risks. This includes information from the EPA; other relevant government departments (such as WorkSafe), business and industry associations, and independent organisations like Standards Australia and universities. “The state of knowledge can change over time, as different ways of working develop, and new risks emerge,” said Meaklim. “There are also changes to some of the licensing provisions, with some new businesses now requiring a license or registration.” Reviewing business activities
There are a number of implications for OHS professionals to be aware of, depending on the type and scale of the industry they work in. However, Meaklim said all industry sectors should review their business activities and identify any that may impact the environment. For example, chemical use or storage, air emissions or waste management should ensure these activities are managed to prevent or minimise risks to health and the environment, and companies should document risk assessment and mitigation actions so that there is evidence, should it be required. “Consulting EPA industry guidance is a great starting point for a business seeking assistance in managing their environmental risks,” said Meaklim. The webinar focused on: • The General Environmental Duty (new Overarching duty that applies to all) • Other Duties • Identifying, assessing & managing environmental risks • Pollution incidents • Noise, vibration, sediment control, erosion and dust • Other impacts of pollution and waste • Contaminated land • Waste framework • Waste classification – Industrial Waste • Waste: contaminated soils • Requirements for staff training and continuous monitoring
The Environment Protection Amendment Act 2017 (the Act) focusses on prevention. The general environmental duty (GED) is central to the new Act and applies to all Victorians. You must reduce the risk of any activities which may harm the environment or human health through pollution or waste. The Act makes sure the public can access more environmental information. This means EPA can help you better understand the state of the environment and how regulatory decisions are made. The Act contains a greater range of penalties. It allows for review of decisions and encourages broader participation in decision-making. Courts will be able to order offenders to repay profits resulting from prior illegal activity. They can also order offenders to take part in a community project.
www.epa.vic.gov.au
The Australian Institute of Health & Safety is the national association representing the health and safety profession. It works to build the capability of the profession and to provide health and safety people a voice on policy, legislation, regulation and standards. For more information on Victoria’s new Environment Protection Act 2017, please call (03) 8336 1995 or email communications@aihs.org.au www.aihs.org.au
Seven important safety actions SMEs should implement before returning to travel
Businesses are starting to plan their travel for 2022, however as the pandemic continues and new variants emerge, travel will remain a complex, yet doable business activity. Tom Walley explains.
Despite promising vaccination rates, the threat of the pandemic remains. Therefore pre-planning and risk assessment to prioritise traveller safety and minimise disruptions must be a greater priority for businesses before resuming travel. These comments come amid the recent release of the international ISO 31030 Travel Risk Management standard which was developed to offer guidance to organisations on how to manage risks as a result of undertaking travel. Travel management companies such as Corporate Traveller have worked with businesses over the last 18 months on risk mitigation strategies to ensure they can continue travelling. The new Standard formalises these strategies and ensures businesses can implement them independently and easily, providing the protection needed in the event of COVID infection or other health and safety issues during travel. Organisations would be wise to review the new Standard, as it provides a foundation for them to reduce potential health, safety and security risks during every step of the travel journey. Certification is also beneficial to businesses and their employees as it can increase employee confidence to return to travel. Seven must-have safety protocols
1. Establish pre-travel authorisations. Organisations would be wise to establish pre-approvals and booking procedures to provide better visibility over travel. This can include developing a mandatory booking process that clearly outlines the booking channels that can be used for all forms of travel, transport, and accommodation, as well as the senior leaders tasked with approving travel. It would also stipulate the approval process required to book travel outside official channels. A centralised system is recommended, such as a platform developed specifically for the organisation.
2. Conduct a travel risk assessment prior to planning and
booking travel. This allows businesses to identify, analyse, and evaluate security threats and health and safety hazards that could occur during travel. Such assessments can be conducted on a company’s behalf or businesses can perform them independently. Business would first assess potential risks and likelihood of them occurring. These could range from personnel risk, including injury or illness, legal risk, financial risk, and data risk, including breaches in data and confidentiality.
To analyse such risks, organisations can seek expert advice or source information from local government agencies and embassies, along with location-specific crime statistics.
3. Assess and approve accommodation and transportation
based on health, safety, and security risks. Organisations need to consider these when determining approved accommodation for travellers. The Standard outlines how organisations can assess accommodation options. The same applies to transportation.
4. Source relevant, reliable, and up-to-date information and
advice for travelling employees. Organisations that travel regularly can consider onboarding a travel management company, which is equipped with innovative technology and expert teams that can source and provide information to businesses and travellers in real-time. They can also change itineraries before and during travel based on changing circumstances and increased risk to ensure travellers remain safe.
5. Perform pre-and-post-travel
checks on all travelling employees. Pre-travel checks can assess whether an employee is medically fit to travel. Checks should consider pre-existing health conditions and ensure procedures such as testing, vaccinations and quarantine are adhered to prior to travel. Post-travel checks are also important. 6. Track travellers for peace of mind. The Standard outlines three methods organisations can consider to track travellers: itinerary based, expenses based, or technology based.
However, tracking travellers should only be used to ensure their safety and give businesses peace of mind, particularly when travelling to a high-risk location. Itinerary-based tracking relates to the collation of booking information, from transportation to accommodation, to identify where travellers will be, and when, throughout their journey. This method keeps organisations informed and allows travellers to check-in with managers at agreed points in the journey for added peace of mind, while still maintaining privacy. Organisations could use a system that tracks an employee’s expenses, which can indicate where the traveller has been as well as ensure travel budgets are adhered to. Technology-based tracking involves using a device or specific app on the employee’s phone which can monitor and record movements, allowing organisations to view their precise location.
7. Evaluate the travel program through employee surveys.
Businesses can conduct employee surveys to identify any gaps and areas of improvement needed in their travel program. The surveys assess all areas of the travel program, including the support and information provided before and during travel, the booking process, and the overall travel experience. The survey could ask for specific feedback, particularly regarding health and safety, to ensure travel remains seamless and safe for all employees.”
Tom Walley is the General Manager at Corporate Traveller, Australia’s biggest travel management company for SMEs and a division of Flight Centre Travel Group. Established in 1993 as Flight Centre Travel Group’s first corporate brand, Corporate Traveller has offered its personalised service, expert tailored advice, dedicated travel consultants, and advanced booking technology to more than 6500 Australian business customers. Offering an all-in-one innovative booking platform with the support of a personal travel consultant, Corporate Traveller makes travel simpler, faster, and easier for businesses. www.corporatetraveller.com.au
It all depends on the written contract
David McLaughlin explains the importance of using the correct Contract terms when hiring employees or contractors, and that the correct type of Contract is in place.
Australian businesses can engage labour either as direct employees or through contracting arrangements. Two recent decisions handed down by the High Court of Australia have confirmed the importance of using the correct contractual terms when hiring employees or engaging contractors. The decisions, both handed down by the High Court on 9 February 2022, confirm the previous decision delivered by the Court in the Workpac v Rossato [2021] HCA 23 (Rossato) decision last year. The decisions in all three cases give precedence to the terms of the written contract to determine the nature of the relationship between the parties. This article will provide an overview of the cases and what employers should consider when engaging labour. In the Rossato case mentioned above, the Court was concerned with determining whether an established employment relationship was permanent employment or casual employment. The two other decisions which followed, ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 (Jamsek) and CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 (Personnel Contracting), dealt with the question of whether individual workers were employees or independent contractors. In the case of Jamsek, two drivers were originally employees of the business. In 1986, in a decision instigated by the employer, the drivers ceased to be employees and established partnerships with their respective spouses. Each partnership then entered into a written contract to provide a truck and driver to perform delivery work for the previous employer. The decision handed down by the Full Court of the Federal Court held that they were employees based on the "substance and reality" of the relationship. However, the High Court held that was wrong and cited its own previous decision in Personnel Contracting, referring to the following points: • While there may be cases where the rights and duties of the parties are not found exclusively within a written contract, this was not such a case. • Where the terms or the parties' relationship are comprehensively committed to a written contract, there is no reason why the legal rights and obligations so established should not be decisive of the character of the relationship. • The employment relationship with which the common law is concerned must be a legal relationship. It is not a social or psychological concept like friendship. There is nothing artificial about limiting the consideration of legal relationships to legal concepts such as rights and duties. • There is nothing of concern to the law that would require treating the relationship between the parties as affected by circumstances, facts, or occurrences that otherwise have no bearing upon legal rights. Ultimately in the Jamsek case, the Court determined on the wording of the contracts that the partnerships were contracted parties with the principal business, and the individuals were not employees. Not all aspects of the decision were clear cut. The question of whether the individuals could fit within the expanded definition of "employee" for the purposes of the superannuation guarantee legislation was referred back to the Federal Court as it had not been determined by the Full Court in its decision. The High Court considered the Australian Taxation Office should be given an opportunity to participate in such proceedings. In the case of Personnel Contracting, the High Court determined that, despite the individual being labelled as a contractor, the terms of the contract were such that the individual was an employee. It was determined that the written contract gave the company the right to control the individual's work tasks and execute them. The individual was a labourer and Personnel Consulting was a labourhire firm that provided labourers to building companies. While the contract designated the individual to be a contractor, the Court noted the following points: • Uncertainty if a relationship is one of employment may sometimes be unavoidable. It is the task of the courts to promote certainty with respect to a relationship of such fundamental importance, especially where both parties have taken legitimate steps to avoid uncertainty in their relationship. • The parties' legitimate freedom to agree upon the rights and duties which constitute their relationship should not be misunderstood. It does not extend to attaching a "label" to describe their relationship, which is inconsistent with the rights and duties otherwise set forth. Lessons for employers
As highlighted by these decisions, it is absolute that a written contract between an employer and employee, or principal and contractor is fundamental to establishing the nature of the relationship between both parties. It is clear that the label given to the relationship by the parties will not be the only factor to determine the relationship if other aspects of the written contract contradict that label. Finally, it is essential to remember that the Fair Work Act prohibits sham contracting (not alleged in either of these proceedings). An example of this would be if an employer suddenly and unexpectedly converts all production employees to be independent contractors. For employers, it is integral to consider the type of work that you require, how it can best be performed and ensure the business has the correct type of contract in place.
Rigby Cooke's Workplace Relations team can assist businesses with reviewing current and future employment contracts or contractor agreements to ensure they align with business requirements. David McLaughlin Partner – Workplace Relations +61 3 9321 7838 dmclaughlin@rigbycooke.com.au www.rigbycooke.com.au
Greater Insights – Better Business
Jeremy Raniti and Samantha Zebrowski share their insights into what they consider are the five key pillars to a business’ survival and success as we slowly return to a semblance of normal life post-pandemic.
As we see the landscape of Australia slowly returning to one which somewhat resembles life before the pandemic, we’ve been quickly reminded that natural disasters, financial uncertainties, and global politics are unpredictable but always have an impact on business. These ever-changing times, combined with the risks, fears and disruptions it brings is a constant reminder that as managers and business owners, we must be agile in our movements and at one with the core of our business. In this article, we apply our experiences from dealing with a vast array of clients to share our thoughts on what are undoubtedly the five key pillars to a business’ survival and success. 1. Prices are changing, fast.
Raw materials, freight, insurance and even coffee. 2021 ended, and 2022 started with a similar discussion amongst all Australians: prices are changing, fast. The disruptions to a business’ supply chain, the ‘out-of-action/isolating’ workforce, and the everchanging landscape of doing business have added to inflation at an unexpected pace. It has now become imperative to have a great awareness of the cost required to do business and make informed decisions based on this information. This is not only possible by having the information readily available to you, but also having the right people in the room to interpret the data, crunch the numbers and provide sound financial and business advice. 2. Reporting - Daily feed
Routine is everything. By the time we arrive at work, we’ve checked the news, listened to the radio, and if we’re in the mood for it, read a couple of emails. Thanks to the advances of cloud accounting, reporting has become easier, quicker and more relevant than ever. It is therefore a logical extension of this, that purposeful reporting be part of all business’ daily routine. Purposeful reporting is just that, built for the purposes of its user to provided purposeful results. It is also the result of business owner and advisor working in tandem to understand what is important and what it all means. 3. Cash is important
We’ve all become familiar with the term ‘cash is king’, but what businesses often overlook is the assessment of how much available cash is required to keep the lights on, the doors open, and staff employed. It is an exercise worth its weight in gold, and one that requires business owners, managers, and their advisors to sit down and work out what are their non-negotiable fixed costs. From here, the plan should be to formulate a strategy to determine what the ‘rainy day’ cash balance should be, and how to build up this cash reserve in a predetermined time frame. This ‘rainy day’ cash reserve will serve as a first stop lifeline in the event an unforeseen incident brings everything to a standstill. 4. People are just as important
In our ever-changing environment, our people are often one of our only constants. With talks of the great resignation, it is more important than ever to listen to our people. However, it’s more than that. Do we take on board their ideas? Are we sharing success stories and celebrating their achievements? Hopefully we’ve implemented a strategy to help reduce leave liabilities, keep up with work demand and encouraged our people to enjoy some time away from the workplace. It is also important to review employment contracts against the awards/EBA/market and regularly provide feedback to enable continuous learning. We have found that when we take care of our people, they will take care of our business.
5. Tax, the worst surprise
Tax is a daunting word. A word that too many business owners don’t fully understand, appreciate, or plan for, and as accountants, we can understand exactly why. The ATO and SROs have increased their activity in all facets of tax. There are the regular updates to existing tax legislation, regular reporting of new taxes on the horizon, and the annual Federal Government Budget announcements which at times take months and sometimes years to enact. In addition to federal taxes, business owners are having to navigate their way through state taxes including Payroll Tax and Land Tax. To effectively manage these taxes, whilst also being confident your business is compliant with legislation, it is only right that as business owners, you are actively engaging with your advisors to gain greater insights as to the pipeline of financial obligations, taking advantage of proposed changes and ensuring compliance is being met on time. By doing this, you start the deliberate process of better understanding how it all works and remove the headache of the worst surprise. These five key pillars to a business’ survival and success largely revolve around the notion that with greater insights we will have better business outcomes. We appreciate that running a business whilst also becoming experts in these fields is a timely investment, highlighting the value of a strong relationship between Business Owners and Advisors. If you would like to know more about the impact these pillars could have on your business, please contact your local William Buck advisor for a complimentary consultation.
