NSW Government Bulletin: Closing Loopholes No. 2 Bill: Second round of changes to workplace law

The Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 (Closing Loopholes No. 2 Bill), which introduced the second tranche of significant workplace law changes, has come into force this week.

These new laws will impact government agencies covered by Fair Work and also enterprises that are engaged by NSW Government.

The key changes are:

• personal service contractors – the legislation restores the state of the law regarding the distinction between contractors and employees to that prior to the two High Court decisions in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2. Whether a personal service worker is an employee or contractor will be determined by the “real substance, practical reality and true nature of the working relationship”, meaning that post-contractual conduct and the terms of the contract will be relevant. At the same time, the defence to the civil liability offence of “sham contracting” is made harder for alleged offenders, by requiring putative principals to prove their belief that the putative contractor they had engaged was in fact a contractor, was objectively reasonable. This change will commence from 26 August 2024
• casual employment – the new legislation reflects the law prior to the Workpac decisions, whereby an employment relationship will not be a casual engagement if the practical reality of the employment relationship is one of permanent employment, resulting in the employee having the same rights as a permanent employee. A broader number of factors will be taken into account to make that assessment. There are also changes to the right to request casual conversion. These changes will commence from 26 August 2024
• gig contractors – the FWC is now empowered to set minimum standards for ‘employee-like’ workers in the gig economy and in the road transport industry. The FWC has announced that it will publish a report on the implementation of its new powers. This change will commence from 26 August 2024
• right to disconnect – employees will have the right to refuse unreasonable employment-related contact outside of work hours. Employees will have the right to apply to the FWC for an order that the employer stops unreasonable out of hours contact. The FWC has indicated that it will initiate a new case to insert this right into modern awards. This change will commence from 26 August 2024
• unfair contracts – a jurisdiction of the FWC has been created to resolve disputes about unfair contract terms in service agreements between independent contractors who are below a high-income threshold and the principals who engage them. Contractors above the threshold will rely on the current Independent Contractors Act. This change will commence from 26 August 2024
• enterprise bargaining – the amendments fine-tune the sweeping changes introduced last year by the Secure Jobs, Better Pay legislation to enterprise bargaining arrangements. The FWC cannot make a term in an intractable bargaining workplace determination less favourable to each employee and employee organisation, than a term in the existing enterprise agreement. The FWC will determine model terms for enterprise agreements, allowing multiple franchisees to bargain together for a single enterprise agreement and providing for single interest employer agreements to be replaced by single enterprise agreements. This change commenced from 27 February 2024

Author: Michael Selinger

In the Media

NSW Government introduces integrity reforms
The NSW Government will introduce reforms to help restore public trust and improve public integrity, transparency, and accountability. The reform package will include amendments to the Independent Commission Against Corruption Act 1988. This will make it a legislative requirement for the Government to respond to recommendations of the Independent Commission Against Corruption (ICAC) directed to the Government (7 February 2024).  Read more here.

New Commissioner appointed to lead Information and Privacy Commission NSW
A new Information Commissioner has been appointed to lead the Information and Privacy Commission NSW (IPC). Rachel McCallum will commence a three-year term as Information Commissioner and Chief Executive Officer of the IPC on 4 March 2024. As Information Commissioner, Ms McCallum’s statutory role will include promoting public awareness and understanding of the Government Information (Public Access) Act 2009 (GIPA Act) providing information, advice, assistance, and training to agencies and the public; dealing with complaints about agencies; investigating agencies’ systems, policies, and practices; and reporting on compliance with the GIPA Act (23 February 2024).  Read more here.

Culturally and linguistically diverse communities to benefit from increased media focus
More than 190 languages are spoken at home across NSW. The NSW Government is following the recommendations from the 2023 Multicultural Media and Policy Review Report. This forms part of the state government’s commitment to greater inclusion across government services. More communities across NSW will have access to up-to-date government information with an increased focus on multicultural and First Nations media outlets (26 February 2024).  Read more here.

Productivity Commission releases report on Closing the Gap
The NSW Government has welcomed the Productivity Commission’s review on federal and state government progress towards improved life outcomes for Aboriginal and Torres Strait Islander people and communities across Australia. Over the next 12 months, the NSW Government will continue delivering the Closing the Gap Implementation Plan 2022-2024. A new Closing the Gap Implementation Plan 2024-25 will be developed in partnership with NSW CAPO (7 February 2024).  Read more here.

In the courts and practice

Applications open for industrial court judges
Expressions of interest have opened for the appointment of a President and Deputy Presidents for the new Industrial Court of New South Wales. The Industrial Relations Amendment Act 2023 delivered on the NSW Government’s commitment to provide essential workers access to a fair and independent umpire. The Industrial Court will be a superior court of record with equivalent status to the Supreme Court and the Land and Environment Court. It will be the central industrial tribunal and court for hearing all NSW Government industrial relations matters, setting remuneration and other conditions of employment, resolving industrial disputes and work, health and safety (WHS) matters (23 February 2024). Read more here.

Two new magistrates appointed to Local Court
Attorney General Michael Daley today announced the appointment of two prosecutors as magistrates to the NSW Local Court, Megan Heywood and Sean Hughes. Ms Heywood is a barrister with more than 25 years experience and has dedicated her career to the public administration of justice, spanning New South Wales and interstate. Mr Hughes is a barrister with almost 20 years at the Bar, mainly in criminal law both defending and prosecuting in NSW Supreme and District Court jury trials (15 February 2024). Read more here.

Publications

Local Government Night-Time Economy Toolkit
The Office of the 24-Hour Economy Commissioner has developed the Local Government Night-Time Economy Toolkit for Councils as a resource to support councils to build their capacity to develop and manage their night-time economies (22 February 2024). Read more here.

Have your say - NSW council financial model review
The NSW Government has asked the Independent Pricing and Regulatory Tribunal (IPART) to investigate and report on the financial model for councils in NSW. IPART will review and make recommendations on matters such as the financial and operational performances of councils, funding, enhanced planning and reporting systems, and more. The consultation period is open until 15 March 2024. Read more here.

Have your say - Central-West Orana Community and Employment Benefit Program
The Energy Corporation of NSW (EnergyCo) wants your input on the development of the Community and Employment Benefit Program (the Program), which will deliver benefits to regional communities hosting new energy infrastructure. The consultation period is open until 10 March 2024. Read more here.

Have your say - Setting maximum Opal fares until 2028
The Minister for Transport has asked the Independent Pricing and Regulatory Tribunal (IPART) to determine appropriate maximum fares for Opal public transport services until 30 June 2028. IPART welcomes feedback on its Issues Paper from both users of the Opal network and those who don't use it as well as industry organisations, contracted service providers and government agencies. This consultation is open for contributions until 1 March 2024. Read more here.

Cases

Australian Workers’ Union v Secretary of the Department of Transport [2024] NSWIRComm 1009
EMPLOYMENT AND INDUSTRIAL LAW – awards and enterprise agreements – interpretation – remuneration
EMPLOYMENT AND INDUSTRIAL LAW – industrial Relations Commission – procedure and powers – interpretation
Industrial Relations Act 1996, ss 130, 175; Roads and Maritime Services (Salaried Staff) Award 2019; Roads and Maritime Services (Wages Staff) Award 2019

Griffith City Council v Romeo (No 2) [2024] NSWIRComm 1011
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – appeals – leave to appeal – assessment of harshness – whether utility in granting leave to appeal – no utility – leave refused – appeal dismissed.
Industrial Relations Act 1996 ss 89, 187, 188, 190A, 191; Road Transport Act 2013 ss 4, 5, 54; Work, Health and Safety Act 2011 ss 19, 32.

Coen-Graham v Commissioner of Police, NSW Police Force [2024] NSWCATAD 52
ADMINISTRATIVE LAW – licensing – firearms – revocation of licence – mental health – living or domestic circumstances – fit and proper person – public interest.
Civil and Administrative Tribunal Act 2013; Administrative Decisions Review Act 1997; Firearms Act 1996.

Council of the New South Wales Bar Association v de Robillard [2024] NSWCA 38
COURTS AND JUDICIAL SYSTEM – judges – recusal – apprehension of bias – whether issue in proceedings pre-determined by reason of costs order made by Registrar
Legal Profession Uniform Law 2014 (NSW), ss 22, 23, 264

Clarke (Naicker) v Health Care Complaints Commission [2024] NSWSC 153
JUDICIAL REVIEW – summons seeking judicial review against background of extensive litigation – vexatious litigant appealing NCAT decision – where similar matters have been heard by Court of Appeal and decision is reserved at date of hearing – question of whether issues raised substantially replicate issues before appellate court – whether appeal is an abuse of process
Health Practitioner Regulation National Law; Industrial Relations Act 1996 (NSW); Mental Health Act 2007 (NSW); National Law and the Health Care Complaints Act 1993 (NSW); Uniform Civil Procedure Rules 2005 (NSW) 
CLT v Secretary, Department of Education [2024] NSWCATAD 50
ADMINISTRATIVE REVIEW – Government Information (Public Access) Act 2009 (NSW) – whether information is held by the agency.
|Administrative Decisions Review Act 1997 (NSW), ss 55, 63; Government Information (Public Access) Act 2009 (NSW), ss 3, 5, 9, 53, 58, 80, 100, 101, 105, Schedule 4; Government Sector Employment Act 2013 (NSW), ss 3, 23, Schedule 1

Ferella as Executor of the Estate of the late Gustavo Ferella v Chief Commissioner of State Revenue [2024] NSWSC 166
TAXES AND DUTIES – land tax – liability – exemptions – exemption for land used for primary production – appeal under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) – whether dominant use of land for maintenance of animals for purpose of selling them or their natural increase or bodily produce – when no other use of property put to Tribunal – relevance of subjective intention of taxpayer – no evidence of subjective intention
Administrative Decisions Review Act 1997 (NSW), ss 58, 63; Civil and Administrative Tribunal Act 2013 (NSW), ss 80, 82, 83, 84; Land Tax Management Act 1956 (NSW), ss 7, 10AA; Taxation Administration Act 1996 (NSW), ss 96, 100; Uniform Civil Procedure Rules 2005 (NSW), r 50.12

Hassarati v City of Canada Bay Council [2024] NSWLEC 1068
DEVELOPMENT APPEAL – residential development – masonry retaining wall and dividing fence – foreshore area– compatibility with surrounding area – orders
Environmental Planning and Assessment Act 1979, s 4.15, 8.7; Land and Environment Court Act 1979, ss 34, 34AA; State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.28 and sch 6; Canada Bay Local Environmental Plan 2013

Hunt Leather Pty Ltd v Transport for NSW (No 4) [2024] NSWSC 140
CIVIL PROCEDURE – Representative proceedings – where plaintiffs entered into a litigation funding agreement – whether plaintiffs may claim as a head of damages the litigation funder’s commission.
Civil Procedure Act 2005 (NSW), ss 3, 19; Federal Court of Australia Act 1976 (Cth), pt IVA; Civil Liability Act 2002 (NSW), ss 5D, 5E, pt 1A

Kolokotronis v Waverley Council [2024] NSWLEC 1069
APPEAL – development application – grant of consent subject to conditions concerning a tree – conciliation conference – agreement reached – orders made
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7; Land and Environment Court Act 1979, ss 34, 34AA

Kudrynski v Orange City Council [2024] NSWCA 33
APPEALS – s 57(1) Land and Environment Court Act 1979 (NSW) – requirement for appeal to be from an order or decision on a question of law – deficiencies in the notice of appeal – whether any of the 24 grounds met this requirement COMPULSORY ACQUISITION – Compensation – vacant land acquired by local council for public purpose of stormwater harvesting project – highest and best use of land for rural residential development – appellants sought $160 million compensation below and on appeal
Criminal Appeal Act 1912 (NSW) Pt 3; Land Acquisition (Just Terms Compensation) Act 1991 (NSW) ss 56(1)(a), 66; Land and Environment Court Act 1979 (NSW) ss 56A, 57; Local Court Act 2007 (NSW) ss 39, 40; Orange Development Control Plan 2004; Orange Local Environmental Plan 2011; Uniform Civil Procedure Rules 2005 (NSW); Water Management Act 2000 (NSW) s 52

Lechowicz v Commissioner of Fair Trading [2024] NSWCATOD 20
ADMINISTRATIVE LAW – Home Building Act – administrative review of decision to refuse application for owner builder permit – special circumstances – occupancy
Administrative Disputes Review Act 1997; Civil and Administrative Tribunal Act 2013; Home Building Act 1989; Standard Instrument (Local Environmental Plans) Orders 2006

Malouf v City of Parramatta Council [2-24] NSWLEC 1072
DEVELOPMENT APPLICATION – subdivision – dual occupancies – dwelling house – new road – agreement between the parties – orders
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.46, 8.7, 8.14, 8.15; Land and Environment Court Act 1979, s 34; Rural Fires Act 1997, s 100B

Peponis-Brisimis v Woollahra Municipal Council [2024] NSWLEC 1075
DEVELOPMENT APPLICATION – alterations and additions to an existing dwelling – breach in height development standard – written request for variation in development standard – conciliation conference – agreement between the parties – orders
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7; Land and Environment Court Act 1979, ss 34, 34AA; Environmental Planning and Assessment Regulation 2021, ss 23, 27, 38; State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2, Div 2, ss 6.6, 6.7; State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004; State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6; Woollahra Local Environmental Plan 2014, cll 2.3, 4.3, 4.6

Rd Beechworth Pty Ltd v Ku-ring-gai Council [2024] NSWLEC 1074
DEVELOPMENT APPLICATION – concept development application – demolition – subdivision – certain construction works – certain tree removal – conciliation conference – agreement between the parties – orders
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.22, 8.7, Div 4.4; Land and Environment Court Act 1979, s 34; Environmental Planning and Assessment Regulations 2021, s 38; Ku-ring-gai Local Environmental Plan 2015, cll 2.3, 2.7, 5.10, 6.3, 6.5; State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, s 2.6, Pt 2.3; State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Tanti v Randwick City Council [2024] NSWLEC 1073
DEVELOPMENT APPLICATION – attached dual occupancy – amended plans – streetscape – primary frontage – amenity
Environmental Planning and Assessment Act 1979, ss 4.15, 8.7; Land and Environment Court Act 1979, s 34AA; Randwick Local Environmental Plan 2012, cll 2.3, 4.1C, 4.6

Vaccaro Developments Pty Limited v Fairfield City Council [2024] NSWLEC 1076
APPEAL – development control order – stop use order – conciliation conference – agreement to modify order
Environmental Planning and Assessment Act 1979, ss 8.18, 9.34, Sch 5, Pt 1; Land and Environment Court Act 1979, s 34

Winifred West Schools Ltd v Wingecarribee Shire Council (No 2) [2024] NSWLEC 1066
APPEAL – development application – consent sought for construction of student accommodation buildings, a multi-purpose hall and associated works at Frensham School – deemed refusal – amended application renotified – objectors’ submissions – commencement at Frensham School with objector submissions, inspection of site of proposal and observation of areas to south including upper Holt – whether site is core koala habitat – change to conservation status of koala – Biodiversity Development Assessment Report (BDAR) – Flood Emergency Response Plan (FERP) – impacts on platypus – water quality assessment is not required to be met – nature of vegetation on site – establishment of Asset Protection Zones – managing bush fire risk – bush fire evacuation plan – whether the proposal is appropriate given biodiversity and other values – agreed conditions imposed

Biodiversity Conservation Act 2016, s 2.11; Environmental Planning and Assessment Act 1979

Legislation

Bills
Electoral Funding Amendment (Local Government Electoral Expenditure Caps) Bill 2024 8 February 2024
Environmental Legislation Amendment (Hazardous Chemicals) Bill 2024 8 February 2024
Residential Tenancies Amendment (Prohibiting No Grounds Evictions) Bill 2024 8 February 2024
Prevention of Cruelty to Animals Amendment (Virtual Stock Fencing) Bill 2024 8 February 2024
Combat Sports Amendment Bill 2024 7 February 2024
Independent Commission Against Corruption Amendment Bill 2024 7 February 2024
Local Government Amendment (De-amalgamations) Bill 2024 6 February 2024

Published by:

Michael Selinger

Christine Jones (Editor), Faith Zalm, Vishwa Shah

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