Edition 6-2013
Lawfully dismissing employees upon redundancy: avoiding unfair dismissal claims
http://www.mba.org.au/ files/view/?id=594 Master Builders Executive Council President – John Haskins AM Treasurer – Frank Porreca Chair, Commercial Builders’ Sector Council – Valdis Luks Chair, Suppliers and Subcontractors’ Sector Council – Grace Ferreira Chair, Residential Builders’ Sector Council – Frank Porreca Chair, Civil Contractors’ Sector Council – Andy Crompton Chair, Professional Consultants’ Sector Council – Hans Sommer Master Builders Management team Executive Director – John Miller Deputy Executive Director – Jerry Howard Director Industrial Relations – John Nikolic Work Safety Advisor – Phil Edwards Senior Management Accountant – Louise MacCallum Senior Manager - Marketing & Membership Services – David Leitch Master Builders Group Training General Manager – Wendy Tengstrom
It is a cold business fact that redundancies and economic downturns go together. Over the past 18 months, many members have unfortunately had cause to request advice about how they can lawfully make employees’ roles redundant. It may come as a surprise to many members, but employees whose roles have been made redundant are able to make unfair dismissal claims, usually on the grounds that the selection criteria or process followed was capricious or unjust. However, the Fair Work Act 2009 (Cth) (FW Act) recognises that redundancies are often inevitable and affords employers a mechanism to immunise themselves against unfair dismissal claims. Under section 389 of the FW Act, if a dismissal is a case of a ‘genuine redundancy’, then the dismissed employee is barred from making an unfair dismissal claim. Importantly, a genuine redundancy requires that certain criteria and procedures be met, namely that: •
the employee’s job be no longer required to be performed by anyone due to ‘operational reasons’;
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the employer comply with consultation obligations under any applicable modern award (all awards contain such obligations); and
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the employer consider whether it is reasonable to ‘redeploy’ the worker within the enterprise (or associated entities).
The first limb of the above test is easily fulfilled in most cases (operational reasons include restructuring to cope with business downturns). The second and third parts, i.e. award consultation and consideration of redeployment, are where members must be more careful. Master Builders Association of the ACT 1 Iron Knob St, Fyshwick ACT 2609 PO Box 1211, Fyshwick ACT 2609 Tel: (02) 6247 2099 Fax: (02) 6249 8374 Email: canberra@mba.org.au Web: www.mba.org.au
Consultation, including consideration of redeployment Consultation requires that an employer discuss the possibility of redundancies with all potentially affected employees (i.e. all employees who perform the same
kind of role that is being considered for redundancy) and ask them for their feedback and ideas before any decision to make a particular position redundant is made. It is very different to merely notifying the employee that their position is redundant. Whether an employer makes a particular position redundant is still the employer’s call – the important thing is to let affected employees have their say prior to making the call. Importantly, clause 8 of the Building and Construction General On-Site Award 2010 also requires members to provide written information to employees about the nature of the changes, the expected effect of the changes and any other matters likely to affect employees arising from potential redundancies. Members must also consider whether redeployment of employees into other suitable roles is ‘reasonable’, including into other business that might be controlled by a member’s business or that are related to a member’s business, even if those business are interstate. Again, members are not required to redeploy the employee into another role, only to consider whether it is reasonable. If it is then offers to redeploy should ideally be made, even if additional training might be required. Master Builders strongly recommends that members consult with potentially affected employees prior to any notification of redundancies and also consider whether redeployment would be possible. If members do so, they will have a very strong case against any unfair dismissal claim, which can otherwise add to costs at a difficult time. 1 If members have any questions about dismissing employees they should contact the Industrial Relations Department on 02 6247 2099. 1 Although determining whether the dismissal was a case of ‘genuine redundancy’ will still require a hearing by the Fair Work Commission, being able to make such an argument puts an employer in a very strong position and can neutralise the claim at the telephone conciliation stage.
THE
HAMMER hits the nail on the head
Red tape Conundrum Former federal treasurer Peter Costello, via his regular column for News Limited, has recently written about his frustration with the growth of red tape and the cumulative impacts of new regulation, particularly on small business. Hundreds, maybe thousands, probably tens of thousands of column centimetres have been written about this frustration and still the changes keep coming and the burden becomes greater. The interesting thing about a former senior political figure like Costello, now himself a small business person, writing this might just help those inside politics and the bureaucracy take some notice. Business survey after business survey confirms Mr. Costello’s lament. Red tape reduction review after red tape reduction review fails to arrest the frustration. Why is this so? Perhaps a lot of it has got to do with the fact that most legislators and many bureaucrats have absolutely no understanding of what it’s like to be on the receiving end. Mind you, how often do you see the bureaucracy creating nooses for themselves by inventing processes so cumbersome and compliance-driven that the best that can result from it is inertia, a perfect storm of frustration particularly for good people who want to help?
Modern society and modern politics somehow tells us we need to measure every last thing to death. If we don’t or we can’t, we are told we are failing. On this score, politicians seem hell bent on making sure their scorecards can clearly demonstrate to their constituencies they are doing something. Often, that means creating regulation and legislation. Let’s not worry about if it’s any good. They will all claim to be saving the world and spin a few yarns to prove their point. For many in business, they will not immediately be aware of some of their lovely and newly anointed obligations resulting from a myriad of brand spanking new legislation and regulation. That will become apparent later when someone dusts off a sleeper just to catch you unaware. There will be many a small business operator who will be able to attest to this type of wonderful surprise. This just isn’t about blissful ignorance or choosing to ignore change, this is commentary about just how much change is happening and the enormous difficulty encountered by many in just keeping up. In an age of technology, why is it that the same information is provided time after time after time when dealing with government? Operating across multiple jurisdictions in this one country often
results in so much duplication it begs the question – “Why can’t this be easier?” The inefficiency is mind numbing and the frustration is mind bending. One of the deepest frustrations surrounding the red tape debate is that it is acknowledged as a blight by just about everyone, including the perpetrators of the frustrations. It’s as if we can’t stop this parasitic red tape contagion from eating up all of the enthusiasm and innovation that accompanied people into the world of business when they first started on their journey. It’s an insidious thing, we can’t always put our finger on it but we just know it is there. It eats up the clock on a daily basis. So now Mr. Costello’s friends are back in office it will be interesting to see what measures they propose to tackle this massive problem. A cynical side says the intentions are strong but the resistance is weak. It would be a nice surprise to see some arrest to this madness because without that happening it is clear that business is just going to continue being hammered.
No housing bubble –
taxes and red tape holding housing industry back Master Builders has rejected irresponsible speculation about a ‘housing bubble’ as not reflecting the current state of the housing industry which is struggling under the burden of excessive taxes and unwarranted red tape.
Master Builders ACT executive director John Miller has called for more action by the ACT Government “to unlock projects that are being stymied by inordinate delays inside the bureaucracy as well as fees and charges that are significantly reducing the viability of projects because consumers just cannot afford to meet the extra costs.” Master Builders Australia chief executive Wilhelm Harnisch describes talk of a bubble in house prices as “scaremongering”. “Those who are spruiking a bubble are not in touch with the facts,” Mr Harnisch said. “Housing finance is still restricted, developers still have difficulty in raising finance and new home buyers are finding it harder to get loans.” He said there is now a disconnect between property prices and construction levels, which the property sector hopes can be eased by cuts to construction costs. Construction growth is stymied, in particular, by taxes, which account for up to 40 per cent of total building costs.
Mr Miller said that at a recently convened forum between industry groups and the ACT government, Master Builders ACT continued to press government decisionmakers about the urgent need to use all the mechanisms at their disposal. “The current industry downturn is being exacerbated by a myriad of factors including ongoing international volatility, economically and politically,” he said. “The last thing we need is to be guilty of creating opportunity in establishing our own confidence roadblocks and yet this is exactly what is happening.” He said the Master Builders ACT latest member survey is clearly confirming what we already suspected: that the additional costs and delays are effectively shutting down work and putting pressure on employment. Phillip Chronican, the chief executive officer of ANZ’s Australian business, said the dwelling shortfall would rise from 270,000 to 370,000 by 2015. He sought to downplay concerns that ultra-low interest rates could produce a housing bubble. Australia needs hundreds of thousands more homes, but red tape and taxes are deterring people from building. The housing industry is crossing its collective fingers in hope that the post-election upswing in business and consumer sentiment will encourage more people to build a house.
But confidence alone won’t make people build a home. They need to believe there is more value in building instead of buying an established property. And that is not a common sentiment, due to a swathe of red tape, green tape, taxes and other hurdles that can make building from scratch a costly option. The new Federal government has scrapped the position of housing minister, so there have been no major proclamations about its housing policies since it won power on September 7. But before the election it committed to re-establishing the Australian Building and Construction Commission (ABCC) – the former industry cop – within 100 days of coming to office. Master Builders Australia has claimed that productivity grew 9.4 per cent when the ABCC was in place from 2005 to 2012, so it’s reinvention could prove a boon for builders. Planners and developers have urged the new government to eliminate the doubled-handling of environmental approvals that require builders to get permission from both states and national authorities, a green tape frustration that has delayed new housing estates. Otherwise, there are few hints of what the new government might do to boost housing supply.
Building and construction has contracted every month for the past 36 months. To the building industry, overhyped talk of a housing bubble is a bitter pill to swallow.
difficulty in Housing finance is still restricted, developers still have der to get loans raising finance and new home buyers are finding it har
Government to test Senate on ABCC The Government has confirmed that it will test Labor and the Greens’ stated opposition to re-establishing the Australian Building and Construction Commission in the first week parliament sits. At the same time the Government has hinted it is exploring options for circumventing Senate obstruction to the re-instatement of the ABCC. Labor and the Greens will retain a Senate majority until Senators elected in September take their positions in the Senate in July 2014. Both Labor and Greens have flagged they will oppose the Coalition’s proposed industrial relations changes including reinstating the ABCC. Non-legislative measures which have been hinted at by unnamed Government sources include: •
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replacing the current chief executive of the Fair Work Building and Construction Inspectorate Val Gostencnik with a candidate that will implement the government's reform agenda; assigning some of the FWBCI's current responsibilities for enforcing compliance with the National Employment Standards in the Act to the Fair Work Ombudsman, to better equip the FWBCI to investigate alleged unlawful industrial activity within the industry; amending the Code and Implementation Guidelines to more closely reflect the position under the Howard government;
A spokesman for Employment Minister Eric Abetz said the Coalition was committed to introducing legislation in the first sitting week to re-establish the ABCC and would meet that time frame.
To circumvent the Senate road block, the new Coalition Government is weighing a range of measures proposed in a report put together by Liberal MPs Paul Fletcher, Josh Frydenberg, Jane Prentice and Nola Marino and handed to Tony Abbott last month. The measures also include ordering the agency to take a more aggressive approach to union militancy; creating an interim taskforce to tackle union corruption and rorts; and using police or hiring ex-police with investigative skills to examine unlawful activity in the industry. The Coalition has also pledged to rewrite the national building code to curb union-friendly enterprise agreements through regulation, not legislation. The changes would be designed to put a stop to agreements that allow for, for example, additional rostered days off and other benefits on federal government projects. Construction companies must comply with the national building code on all projects they are involved in, including private ones, if they are to be eligible for federally-funded projects. Changing the code would wash through the entire building sector, but such changes could be disallowed by the Senate. The Coalition has also pledged to reverse funding cuts made to the construction watchdog under Labor, promising an additional $36 million over four years to the restored ABCC. Labor cut $24 million in funding over four years from the inspectorate in the last budget and cut 45 staff from the agency. One of the architects of Labor’s Fair Work Act, industrial relations Professor Andrew Stewart, said he could not see how the federal government could restore the ABCC without legislation, but there were other measures available to the government. “There is a lot they want to do but there is not a lot they can do without legislation, with one clear exception – if
they replaced the current leadership of the FWBC [Inspectorate] and installed or reinstalled somebody who was more inclined to see the agency’s role in the way the government would like, that would instantly bring about a realignment of the agency’s priorities,’’ he said. Other changes such as reinstating the powers of the old ABCC to compel witnesses to give testimony and higher penalties for unions that take unlawful industrial action would require legislation, Professor Stewart said. “Any significant changes are going to have to wait until the new Senate next year.” Master Builders chief executive Wilhelm Harnisch backed suggestions the Fair Work Ombudsman should investigate alleged breaches of pay and conditions. “The focus of Fair Work Building and Construction should have been the suppression of industrial thuggery by building unions,” he said. Labor leader Bill Shorten said that the government should “spend less time union bashing and more time addressing workplace safety issues”. “Labor remains opposed to the reinstatement of the ABCC,” he said. Mr Harnisch strongly backed Senator Abetz’s commitment to restore the rule of law to Australia’s building sites and crackdown on corruption. “Master Builders fully supports the Minister for Employment, in his pledge to restore the Australian Building and Construction Commission and to protect union members from the potential corruption of union officials,” he said. “A return to the rule of law on Australian building sites demands the full restoration of the ABCC,” he said. “Only the ABCC, established on the recommendation of the Cole Royal Commission, had the necessary powers to successfully suppress industrial thuggery by building unions”.
Minister calls for curbs on ‘sham contracting’ crackdown Newly appointed Small Business Minister Bruce Billson has issued a warning to the Australian Tax Office and Fair Work Australia to curb their activities over alleged ‘sham contracting’.
“Master Builders expressed strong reservations about the fairness of the previous government forcing the majority of construction industry contractors to report every payment they made to another contractor to the Australian Tax Office (ATO) to catch the minority involved with tax evasion,” he said.
Mr Billson has ordered the Tax Office and Fair Work Australia to change the mindset of their approach to small business.
“We’ve been urging the Tax Office to simply implement the law,” Mr Billson said. “We are concerned because we’ve seen examples of overreach to push more independent contractors into employer/employee arrangements.”
Mr Billson, who has the added status and influence of being the first dedicated small business minister in Cabinet told Treasury officials one of the first priorities of the Abbott government was to return to the Howard-era approach of encouraging independent contractors and the self-employed. “There are hundreds of thousands of these courageous, enterprising self-motivated individuals who are making a contribution to the economy but suddenly found themselves in the Bermuda Triangle as contributors to the economy,” he said. “We want to reframe that. It was the Howard government that introduced the Independent Contractors Act that recognised the reality to give it form and structure.” He warned the Tax Office – along with the Fair Work Ombudsman and the construction watchdog – they should stick to the letter of law in their treatment of independent contractors. “We’ll be having those discussions with the ATO and we’ve already had early discussions within the Treasury with officials about this area,” Mr Billson told The Australian Financial Review. “The issue is less about the law itself; it’s the way in which it has been administered.” He said the former Labor government had instructed agencies, including the Fair Work Ombudsman and the Fair Work Building and Construction taskforce, to crack down on contractors, in order to push more people toward union-friendly arrangements in the construction, transport and the textiles, clothing and footwear industries. “We’ve seen efforts to bargain away the opportunity to engage contractors, and additional reporting requirements in the building industry,” Mr Billson said. Master Builders Australia welcomed Mr Billson’s comments. Master Builders Chief Executive Wilhelm Harnisch said, “Master Builders strongly supports efforts to reduce the unnecessary red tape nightmare, which in effect, limits the freedom of choice for independent contractors in how they carry out the skills of their trade.
Mr Billson said he had received complaints the Tax Office had refused to issue ABNs or had withdrawn ABNs to some people whom the ATO deemed employees rather than self-employed or independent contractors. “We’ve had examples raised with us that the ATO has denied a business an ABN for reasons that were not clear but there is no avenue to appeal,” he said. Mr Billson said, “Those who aren’t legitimate deserve to be pursued but those who are legitimate don’t deserve to be harangued, made to have their life more difficult, disrespected and devalued just because it is industrially convenient for the union movement and the former government.”
Changes planned to NSW Building Act Builders in New South Wales will be entitled to a deposit of up to 10 per cent before starting building work valued at more than $20,000 under a proposed overhaul of the Home Building Act outlined by the state government.
The amount of paperwork required for small building jobs will also be cut.
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clarifying the definition for structural or major defects
However, contracts worth more than $20,000 will also need to contain termination clauses, while new limits will apply to progress payments made to builders during the course of the building process.
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consolidating licensing provisions to provide for consistent considerations
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amending requirements to streamline and rationalise home building contract requirements
The reforms are among 46 proposed changes to the state’s Home Building Act 1989 outlined in a Position Paper released by NSW Fair Trading Minister Anthony Roberts in September.
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establishing a public register of home warranty insurance certificates
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renaming the home warranty insurance scheme to better reflect its purpose and how it operates
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introducing an expert determination model, which will aim to identify the technical issues in dispute early in the process.
Building industry groups have generally welcomed the reforms. Master Builders Association of the ACT Deputy Executive Director, Jerry Howard said the changes will provide a clear definition of what constitutes a building defect, remove unnecessary red tape for smaller projects and that the termination clause will make rights and obligations of both parties clear in the event of termination of the contract. Rapid intervention early in the dispute process by introducing expert determination will have a very positive impact in minimising dispute escalation. The Government’s Position Paper outlines its proposals for reform to the Home Building Act. It said the reforms had been informed by an extensive consultation process that took place from July 2012 and included a broad range of stakeholders. The Government intends to introduce legislation to give effect to the reforms later in 2013. If approved by Parliament it is expected the reforms will commence in mid-2014. There are 50 proposed reforms and the Position Paper outlines all the reforms, providing additional information about the key proposals. These include:
Under the proposed changes, which follow consultations regarding a paper released last year, the maximum upfront payment for work valued at over $20,000 will increase from five per cent of the value of the work to 10 per cent. The proposed reforms will increase the threshold for which the more onerous general contract requirements regarding paperwork (as opposed those on ‘small works’ contracts between $1,000 and $5,000) kick in from $5,000 to $20,000. In a bid to limit ‘front loading’ contracts requiring large payments early on in the contract period, ‘progress payments’ will be limited to 20 per cent of the contract price (including variations). The reforms include an overhaul to rules regarding statutory warranties, dispute resolution, the ownerbuilder regime, home warranty insurance and builder licensing.
They will also introduce a new expert determination model to allow technical issues about building defects to be resolved quickly during disputes and allow for builders who do unlicensed work without insurance to be jailed. Mr Roberts says the reforms will provide greater clarity for builders and homeowners, encourage timely resolution of disputes, ensure ownerbuilder permits are not used to circumvent licensing requirements and help keep phoenix companies and shoddy builders out of the industry. “The Government has struck a balance between providing an appropriate level of homeowner protection and supporting home building activity and investment in NSW,” he said. “The current Act has become too complex and unclear with endless disputes between homeowners and builders.” As well as improving protection for consumers, the reforms represent the latest initiative under government efforts to stimulate building activity and address a housing shortage which has built up in recent years amid low volumes of housing starts. In July, the NSW government also unveiled a Bill aimed at overhauling the state’s planning regime by providing a streamlined approval process for new developments which fit within local development schemes, identifying growth suburbs with potential to accommodate greater levels of population, improving infrastructure planning and placing greater focus upon sub-regional plans as opposed to plans of individual municipalities. However, the government has recently backed away from some of the more contentious elements of these reforms.
New addition of the Master Builders' Human Resources Manual Master Builders’ Human Resources Manual is a practical resource for human resources managers to guide them through Australia’s complex employment laws. The Human Resources Manual contains a range of pro forma letters, contracts and policies and provides advice on such areas as entitlements under the National Employment Standards, dealing with unions, privacy and migration law, as well as ACT-specific laws, to name but a few areas. The Human Resources Manual is purchasable by subscription as a loose-leaf binder and / or on a CD, and is updated every six months as laws change. The new 4th Edition of Master Builder’s Human Resources Manual has just been released, incorporating a suite of important changes, including practical advice on:
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the new ‘family friendly’ amendments to the Fair Work Act, which expand the range of employees who can request ‘flexible working arrangements’;
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the ‘good faith bargaining’ regime that applies to employers bargaining for an enterprise agreement;
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privacy law reforms;
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the new ‘market-testing’ requirements for 457 visas and the TSMIT increase;
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the new anti-bullying laws under the Fair Work Act that are set to commence from 1 January 2014;
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new forms and precedents, such as sample redundancy letters.
For those who would like to commence a subscription, order forms are available at: http://www.mba.org.au/files/view/?id=607 For more information on the Human Resources Manual, please call either of the Industrial Relations or Marketing Departments on 02 6247 2099.
Are you sure that all the workers on your site have a working visa? You can now be personally liable if there are unlawful workers on your site – even if you did not engage them directly and did not know they did not meet the visa requirements.
Amendments have been made to the Migration Act 1958 (Cth) which now impose penalties on anyone who allows – knowingly or otherwise – a foreign worker who does not have the correct visa (an ‘unlawful non-citizen’) to work. These amendments came into force on 1 June 2013.
We do not think a court will see any difference between the above example involving a ‘contract for services’ and the situation where labour is supplied to subcontractors, contractors and ultimately developers as part of building contracts for the construction of ‘works’.
But I don’t employ labour directly – surely this doesn’t affect me?
You can be PERSONALLY liable, even if you are unaware
Yes, it does. Prior to the amendments only those persons directly engaging unlawful non-citizens were exposed to penalties. Now any person or business that allows an unlawful non-citizen to work may be liable for civil penalties or face an infringement notice.
The latest amendments introduce ‘no fault’ civil penalties for businesses, executive officers (i.e. directors, CEOs, CFOs) and other employees. This means you can be fined up to $15,300 (and your business up to $76,500 ) even if you did not engage the worker directly and were not aware, or were reckless as to whether the worker was in fact an unlawful noncitizen.
The definition of “allows to work” is incredibly broad. If you participate in an arrangement, or any arrangement included in a series of arrangements, for the performance of work by an unlawful non-citizen, you will be caught. It does not matter whether the unlawful non-citizen is performing work for you, or working for someone else as part of an arrangement with you.
The criminal penalty of up to 2 years imprisonment for a contravention of section 245AB (or 5 years for an aggravated offence) is still applicable, but the hope is that deterrence will be better achieved through financial penalties which are consistently enforced in the event of any contravention.
The word ‘arrangement’ is not defined in the Act, but we know from the cases applying the security of payment legislation that ‘arrangement’ is much broader than legally enforceable contracts. A series of communications can be an ‘arrangement’.
Have we got your attention now? Here’s what you can do to avoid penalties
The explanatory memorandum to the amending legislation makes it clear that the Act has been amended specifically to catch the types of working arrangements that commonly occur on construction sites – citing the following example:
Executive officers and companies have a defence if they have taken ‘all reasonable steps at reasonable times to check that a worker is not an unlawful non-citizen’. Precisely what this means is not clear, and until there are some cases about the new legislation, or regulations fleshing out the requirements, we are somewhat in the dark.
Business A has a contract for services with Business B to provide carpenters at short notice for additional work for two weeks. Business B contacts one of its sub-contractors, Business C to source the carpenters. Business C provides four carpenters to Business A. Business A pays Business B for the workers and Business B pays Business C a commission for providing the workers. The worker's wages are paid by Business C. One of the carpenters is an unlawful non-citizen. Under the old Act, only Business C would be liable for having employed the unlawful non-citizen. Under the amended Act, each of Business A and Business B can now also be liable.
The explanatory memorandum to the Act suggests reasonable steps at reasonable times may include, but are not limited to, any of the following: •
Verifying a potential employee’s visa status on the Department of Immigration and Citizenship’s website Visa Entitlement Verification Online (VEVO);
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Viewing a document which ‘appears to be’ evidence of the worker’s permanent visa, or temporary visa with an entitlement to work;
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Viewing a document which ‘appears to be’ evidence of the worker’s Australian citizenship; or
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Requiring a subcontractor or other labour supplier to verify the employee’s work status.
It is unclear whether obtaining verification (for example, a statutory declaration) from your subcontractor that it has taken these steps will be enough. We suspect it probably will not. For now, the best way to ensure you are not exposed is to implement procedures to take the above steps before letting any worker engaged by you or any of your subcontractors or subsubcontractors, onto the site, and keep a record if a worker’s visa is due to expire prior to their completion of the work at the site.
Want more information? Our Building and Construction Dispute Resolution team can provide straightforward advice on your likely exposure under the reforms, and recommend steps you and your business can take to avoid liability under the Act.
For more information or assistance, please contact: Alisa Taylor Building and Construction Dispute Resolution | Senior Associate (02) 6279 4388 | alisa.taylor@meyervandenberg.com.au Kimberly Moore Building and Construction Dispute Resolution | Senior Lawyer (02) 6279 4339 | kimberly.moore@meyervandenberg.com.au Jonathan Devenish Building and Construction Dispute Resolution | Lawyer (02) 6279 4432 | jonathan.devenish@meyervandenberg.com.au Tessa Dignam Building and Construction Dispute Resolution | Lawyer (02) 6279 4478 | tessa.dignam@meyervandenberg.com.au
A High Risk Work Licence is a Privilege not a Right ACT Work Safety Commissioner Mark McCabe is advising people who hold a high risk work licence under Work Health and Safety legislation that they must have and maintain the competencies the licence indicates they hold. “WorkSafe ACT will take action if it determines that a high risk work licence-holder does not have the competence required to undertake the work for which they are licensed. High risk work, by its nature, can lead to serious accidents, if not fatalities,” said Mr McCabe. The announcement comes after a person in the ACT had his scaffolding licence suspended for 12 months by WorkSafe ACT following the collapse in July 2013 of part of the scaffolding on a building site, which led to an injury to an apprentice carpenter. WorkSafe ACT has suspended the licence for 12 months or until the individual has completed a number of nationally recognised training programs on erecting, altering and dismantling scaffolding.
“This case demonstrates WorkSafe ACT’s willingness to take appropriate action when necessary,” Mr McCabe said. “Licensing is one of the important ways that risks of certain high risk work are mitigated. To obtain a high risk work licence, a person must demonstrate competence through training and experience. The ACT Work Health and Safety Legislation provides that WorkSafe ACT can direct a licence holder to have their competence reassessed or can cancel or suspend their high risk work licence.” “If people are concerned about the competence of a high risk work licence-holder they should contact WorkSafe ACT so it can investigate and respond appropriately,” said Mr McCabe.
Work vehicle unroadworthy for 20 years, bystander killed Those reponsible for servicing and maintaining plant and equipment should note the consequences of not following due processes including the manufacturers recommendations. The Victorian Coroner has stressed the importance of following manufacturers' instructions for maintenance tasks - and made recommendations to WorkSafe and the National Heavy Vehicle Regulator - after an axle broke off a prime mover and struck and killed a contractor. Coroner Jane Hendtlass found it was likely the prime mover had been "technically unroadworthy" for decades. The Coroner heard that in October 2007, the prime mover was travelling at 100km/h down the Westgate Freeway when the dual wheel, hub, axle and part of the fractured axle housing broke away from the right forward drive axle, travelled 500 metres alongside the truck, hit a concrete barrier and flew into the air.
years", and was a factor in it breaking away from the prime mover. She said Dunn's death demonstrated that axle failure in a prime mover was "a serious long-term safety issue". "The only way to prevent subsequent axle severance associated with prior inappropriate remediation of axle damage is to control the circumstances surrounding its repair and re-use," she said. "As the registered vehicle operator of the prime mover throughout its life, [Traianon's owner] knew or ought to have known that the axle had been damaged and that its repair involved substantial modification. "[He] also knew or ought to have known from his observations of the axle after it was remediated that... these modifications were contrary to the manufacturers' instructions."
The Coroner made a number of recommendations, including that: •
VicRoads provides greater incentive for registered vehicle operators to report modifications that require re-registration, and prevent drivers using vehicles that don't comply with road safety regulations by making the failure to do so an indictable offence and increasing the penalty;
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The Coroner heard the right forward drive axle of the 1988 International S-Line 2670 prime mover, owned by Traianon Transport Pty Ltd, had fatigue cracks, which caused the axle to break away from the vehicle.
the National Heavy Vehicle Regulator (NHVR) ensures the National Heavy Vehicle Accreditation Scheme is expanded to include all heavy vehicle operators who perform maintenance in-house;
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She heard that in 1989 or 1990, one of the truck's chassis rails was replaced following a motor-vehicle accident, and its right forward drive axle was repaired with two modifications.
the NHVR ensures the scheme's Code of Practice states that mechanics performing maintenance work on heavy vehicles must access and comply with manufacturers' maintenance instructions;
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These modifications were contrary to the manufacturer's instructions to contact it if any repairs other than normal running maintenance were required, and not to interfere with the vehicle's braking systems, suspension or chassis, she heard.
WorkSafe Victoria distributes an industry alert, using Dunn's death as an example, to promote industry awareness about long-term consequences of performing inappropriate repairs on heavy vehicles; and
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VicRoads requires registered owners, operators and drivers of commercial heavy vehicles to undertake training in basic vehicle maintenance.
It then struck self-employed contractor Graeme Andrew Dunn - who was driving a ride-on mower on a reserve beside the Melbourne Road exit ramp - on the back of the head and forced him to the ground, inflicting fatal chest injuries.
The Coroner found it was likely the 1989-90 incident severely damaged the axle, which meant the truck "had probably been technically unroadworthy for nearly 20
LDA to develop Denman Prospect suburb The Land Development Agency will develop the new Molonglo suburb of Denman Prospect itself after negotiations fell through for its sale to a private developer.
"By directly managing the development, the LDA will be able to ensure that local builders will have the opportunity to purchase land on which to build new homes for Canberra families who are looking to live in the Molonglo valley.
The 107 hectare englobo site was the largest parcel of land released for sale by the LDA and was suitable for the development of up to 1700 dwellings and a commercial centre.
Master Builders ACT executive director John Miller said he was not surprised that such a large block of land had failed to sell in the current market. He said the association would work to ensure it would benefit Canberra's builders. ''We're keen to make sure that local industry gets the opportunity to participate in the further development of Molonglo,'' he said.
The government had been in negotiations with the only qualified bidder when the land was offered for auction in June. Because there was only one bidder the auction did not proceed. The ACT Government’s Economic Development Directorate said the decision was taken following extensive negotiations with the potential purchaser which finally proved to be unsuccessful. "While it is disappointing that in the end we were unable to reach agreement on the sale, there will be no change to the government's published land release program," David Dawes, the Chief Executive of the LDA said. "I have had preliminary discussions with the Master Builders Association and the Housing Industry Association, the two peak bodies for housing construction in the territory, and they are both very happy to work with the LDA as we develop this new suburb.
Deputy Director-General for land development Dan Stewart said it had really come down to a failure to meet on commercial terms. ''We had set a reserve through the process, as we do with all of our land releases, and, through the negotiations the participant, was unable to come up to the agreed reserve,'' he said. ''We had worked through a variety of issues ‌ but unfortunately we were unable to get over that final hurdle. Both parties acknowledged we were not going to get to a common point and at that point the negotiations ceased.'' He said the suburb would be developed at the same time it would have if the sale had proceeded. Mr Stewart said the government would make more money from developing the estate itself.
"I will be meeting with their executives in the coming weeks to discuss how we might be able to release land packages of various sizes that will best suit their members' individual requirements.
"By directly managing the development, the LDA will be able to ensure that local builders will have the opportunity to purchase land on which to build new homes for Canberra families who are looking to live in the Molonglo valley." - David Dawes, Chief Executive of the LDA
Coming events for 2013 Master Builders Australia National Conference
Date: Friday 14 - 16 November I
Master Builders & Cbus Excellence in Building Awards Launch Party
Date: Thursday, 12 December I
Where: Canberra
This year, the conference will be in Canberra at the recently refurbished Rydges Lakeside, November 14-16. Delegates will have the opportunity to join in the celebrations of the centenary of our nation’s capital. Where: The rooftop of 59 Wentworth Ave, Kingston
Join us for drinks and canapes to celebrate the launch of both the 2014 Master Builders & Cbus Excellence in Building Awards, and the Master Builders That Built Canberra publication.
Training Dates for 2013 Safety leadership - advanced observations & conversations skills training
Date: There are a number of available dates. (Contact Cecilee Miller at cmiller@mba.org.au to book your place)
certificate III in Waterproofing
Date: There are a number of available dates. (Contact Cecilee Miller at cmiller@mba.org.au to book your place) The course is aimed at participants who hold a relevant trade qualification or at least three years experience in the application of waterproofing membranes. Current skills of all candidates will be assessed and recognition granted against qualification requirements.
The program consists of three 4 hour modules and two on site coaching seesions. The Safety Leadership Program looks at the way human factors affect the development and maintenance of safety culture. Participants develop awareness and learn skills, to better influence safety culture on site.
SECTOR COUNCIL MEETINGS 2013 COMMERCIAL
3 DEC
CIVIL
19 NOV
RESIDENTIAL
16 OCT
SUB-CONTRACTORS & SUPPLIERS
12 NOV
PROFESSIONAL
11 DEC
ACT Private Sector Building Activity $80 $70
MILLION
$60 $50 $40 $30 $20 $10 $0
Sep-12
Oct-12
Nov-12
Dec-12
Jan-13
Feb-13
Mar-13
Apr-13
May-13
Jun-13
Jul-13
Aug-13
The above graph and table below summarise private sector building activity for the various building sectors in the ACT over the past 12 months. The values for each month are depicted in millions of dollars. // To Insert New Data Goto Object/Graph/Data
• Copy and Paste Pivot Table Data into Data Additions and Alterations (Residential) Commercial Building Work Garages, Pools, Decks and Similar Structures Multi Unit New Housing
Sep-12 Oct-12 Nov-12 Dec-12 Jan-13 Feb-13 Mar-13 Apr-13 May-13 Jun-13 8.2 5.8 7.02 5.00 6.2 6.4 5.02 7.4 6.3 4 27.5 51.27 34.0 38.2 19.2 68.6 24.3 35 27.5 22.3 13.8 15.8 18.3 13.8 11.6 11.4 13 12.5 13 13 1.8 14.6 0 11.2 16.4 10.2 18 28 43 32.6 40 56 72.3 55.5 55.5 43.2 51.2 69 55 60.2
Jul-13 13 45 22.2 17.3 60
Aug-13 3.4 24 5 13 14.2