15 August 2024
22 min read
#Government, #Workplace Relations & Safety
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Last week NSW Premier Chris Minns issued the C2024-03 NSW Government Sector workplace presence, stating that government sector employees should work principally in an approved office, workplace or related work site, with mandatory compliance by executive agencies.
While the debate rages for and against this decision, and agencies begin to plan around implementation, legal issues to consider include:
The public sector is not the first to grapple with these issues. Our private sector clients have for some time been managing the legal and cultural challenges in implementing a successful transition of staff back into the office.
Our Workplace Relations & Safety team can assist with the legal aspects of implementation of the direction to return to work as well as with any claims or disputes that may arise.
Author: Michael Selinger
NSW premier's department says government workers may have to make big adjustments with return to office directive
Some NSW government workers who have been instructed to return to the office have been told they might have to make some big adjustments. Premier Chris Minns on Monday sent out a memo ordering public service workers to work out of an office for at least three days a week. Read more here.
Mines subsidence compensation changes improve safety and help residents with damaged property
Property owners impacted by coal mine subsidence will get stronger protection following the passage of new laws to provide better support and boost transparency. The Coal Mine Subsidence Compensation Fund lets responsible miners in NSW support any residents impacted by current, historic or former mining activity. Under the new laws, Subsidence Advisory NSW can provide residents with temporary accommodation, payments for relocation costs and, where necessary, direct people to evacuate in a mine subsidence emergency (9 August 2024). Read more here.
First conviction of an owners corporation over industrial gate fatality
The owners corporations of commercial premises have been put on notice after SafeWork NSW successfully prosecuted an owners corporation for failing to fix a faulty gate which killed a worker. It is the first time an owners corporation of a strata scheme at an industrial complex has been found guilty of this type of offence under the Work Health and Safety Act NSW 2011 (7 August 2024). Read more here.
Background check fees banned to ensure a fairer go for renters
The Minns Labor Government will change the law to stop renters being slugged with charges for background checks when they’re applying for a rental property. There are 2.2 million renters in NSW, and they’re increasingly being asked to pay for their own background checks just to apply for a home. These ‘optional’ charges often come with the promise that they’ll increase an applicant’s chances of securing a home. The Minns Labor Government will change the law to make it clear that renters cannot be charged for background checks (6 August 2024). Read more here.
NSW to take action this week to appoint independent administrator for the CFMEU Construction and General Division
The NSW Government through the Minister for Industrial Relations has today filed an application in the Industrial Court seeking orders for the appointment of an administrator for the Construction, Forestry, Mining and Energy Union (CFMEU) NSW Branch, Construction and General Division. To remove any doubt about the validity of the appointment and powers of the administrator, the NSW Government will this week introduce a bill to Parliament amend the Industrial Relations Act 1996 to provide for the appointment of an administrator for the CFMEU NSW Branch, Construction and General Division (5 August 2024). Read more here.
Nominations now open for local government elections
Nominations for the 14 September local government elections are opened and people across NSW are encouraged to put their hand up to represent their community on local council. The decisions councils make have a direct impact on people’s everyday lives. The state’s councils manage $151 billion in infrastructure like pools, libraries and roads and every year spend $15 billion delivering local services. There are not any formal qualifications needed to become a councillor, just a passion to work alongside fellow councillors to achieve great outcomes for the community (5 August 2024). Read more here.
Delivering a tougher environmental watchdog
The Minns Labor Government promised a tougher environmental watchdog. It has delivered with the NSW Environment Protection Authority (EPA) taking on 70 prosecutions last financial year, with a success rate of 97% (3 August 2024). Read more here.
C2024-03 NSW Government Sector workplace presence
This Circular updates advice for Government Sector agencies regarding workplace presence. Read more here.
APHTI Competency Framework
NSW Health has published a new competency framework, which underpins the delivery of the NSW Aboriginal Population Health Training Initiative through setting objective standards for workplace learning. Importantly, the competency framework provides a common unit of analysis to review and assess trainee learning experiences across a range of work settings. The framework also supports academic learning within the Master of Public Health by facilitating the application of new knowledge and skills within the workplace. The framework is designed to be flexible and recognises that trainees work across a broad range of population health issues, community groups and settings. (5 August 2024). Read more here.
Law Council Update
In this edition, learn about the Law Council of Australia’s newly launched 'Access to Justice for All' campaign, which aims to increase funding for Australia's legal assistance sector. Dive into an opinion piece titled 'Shameful as vulnerable being turned away from legal aid' by the Law Council President. In addition, read updates on recent advocacy work in relation to the inquiry into economic self-determination and opportunities for First Nations peoples, and the Nature Positive Bills (2 August 2024). Read more here.
Closing the Gap – Annual Data Compilation Report July 2024
The Productivity Commission has released fourth Annual Data Compilation Report to inform reporting on progress under the National Agreement on Closing the Gap. The report tracks progress towards the targets and indicators in the National Agreement on Closing the Gap, shows that five of 19 targets are on track to be met (31 July 2024). Read the report here.
Casebook July 2024: Investigations and complaint-handling case studies
Casebook July 2024: Investigations and complaint-handling case studies provides a summary of investigations conducted and a sample of complaints handled by the NSW Ombudsman from 1 October 2023 to 30 June 2024. This is the first of what will be biannual reports to feature case studies demonstrating how the NSW Ombudsman holds agencies to account, and how we have achieved positive outcomes for the people of NSW (30 July 2024). Access the publication here.
Richard McHugh SC appointed as a Judge of Appeal of the Supreme Court of NSW
Senior barrister Richard McHugh SC has been appointed as a Judge of Appeal of the Supreme Court of NSW. Mr McHugh has conducted many high-profile cases at first instance and on appeal, across a broad range of areas in courts around the country and in international arbitrations. Richard McHugh SC will be sworn in on 20 August 2024 (7 August 2024). Read more here.
John Catsanos SC appointed to NSW District Court
Leading barrister John Catsanos SC has been appointed a judge of the District Court of NSW. Mr Catsanos has a strong track record of providing independent, specialist advice and representation to a range of clients over four decades in law, from medical malpractice and injuries in public places, to car crashes and workplace accidents. Mr Catsanos was sworn in on 5 August 2024 (1 August 2024). Read more here.
Transport Management and Accessibility Plan Guidelines – Have Your Say
Transport for NSW is seeking feedback on the draft Transport Management and Accessibility Plan (TMAP) Guidelines. The draft TMAP Guidelines are used for reviewing and assessing the needs for transport infrastructure and services to support major land use changes identified in proposed land use plans, for example: precinct plans, masterplans and planning proposals. The NSW government would like to hear from professionals involved in these types of proposals from organisations such as local councils, Department of Planning, Housing and Infrastructure, Transport for NSW, and industry (developers and consultants). The consultation is open until 16 August 2024. Access the consultation here.
NSW Suicide Prevention Legislation – Have Your Say
The NSW Government is seeking feedback on the NSW Suicide Prevention Legislation. Legislation is one of many tools the government will use to strengthen NSW’s whole of government approach to suicide prevention. If you have lived or living experience of suicide, the NSW government encourages you to provide feedback, which will be important in helping shape this legislation. The consultation is open until 16 August 2024. Read more about and access the consultation here.
Webster v Bayside Council [2024] NSWCATAD 226
ADMINISTRATIVE LAW – access to information – GIPA – reasonableness of search – public interest considerations against disclosure – cl 3(a), 3(e) and 3(f) of the Table in s14 of the GIPA Act.
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Government Information (Public Access) Act 2009 (NSW).
Kenneth Linton Smith v Central Coast Council [2024] NSWSC 981
LAND LAW – adverse possession – possessory application over Torrens title land – where the plaintiff seeks a declaration that he is the rightful owner of part of the defendants’ rural land by reason of adverse possession for more than 40 years – whether the acts of the plaintiff and his predecessors in title establish factual possession and intention to possess.
Imperial Act Adoption Act 1837 (NSW) (repealed); Limitation Act 1969 (NSW); Public Roads Act 1902 (NSW); Public Roads Act 1897 (NSW) ss 4-5, 7, 19; Real Estate (Limitation of Actions) Act 1837 (NSW) (repealed) ss 17, 34; Real Property Act 1900 (NSW) ss 28U(2), 45C(2), 45D(2); Roads Act 1993 (NSW); Roads and Streets Act 1833 (NSW) ss 1-3, 16, 17.
Piety Developments Pty Ltd v Cumberland City Council (No 2) [2024] NSWCA 196
PRACTICE AND PROCEDURE – urgent application for stay pending as yet unfiled application for special leave to appeal to the High Court – application of Burgundy Royale test – no substantial prospect of special leave being granted – stay refused.
Conveyancing Act 1919 (NSW), s 54A; Local Government Act 1993 (NSW), s 372; Uniform Civil; Procedure Rules 2005 (NSW), r 18.4.
SafeWork NSW v Scopeview Projects Pty Ltd; SafeWork NSW v Cameron Doueihi [2024] NSWDC 323
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury.
SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty.
COSTS – prosecution costs.
OTHER – demolition and excavation work – masonry brick walls – digging trenches around old walls – no structural assessment of walls – no risk assessment for unplanned collapses – failure to brace walls – wall collapse – two walls collapsed in preceding weeks.
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 27, 28, 30A, 30B, 30D, 30E; Fines Act 1996 (NSW), ss 6, 122; Work Health and Safety Act 2011 (NSW), ss 3, 19, 27, 31, 32.
FSO v Secretary, Department of Education [2024] NSWCATAP 154
HUMAN RIGHTS – discrimination – disability – education.
Anti-Discrimination Act 1977 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW).
Ramsay v Southern NSW Local Health District; Manning v Sydney Trains; Honey v Robert Sheridan Family Trust; Duncan v Department of Education; Magnan v Upper Shire Council [2024] NSWDC 326
PERSONAL INJURY COMMISSION – WORKERS COMPENSATION – CONSTITUITIONAL LAW – application to District Court under s.26 of Personal Injury Commission Act 2020 – applications to PIC for workers compensation where the parties are residents of different States; and where respondent is State of NSW for the purposes s.75(iv) of the Constitution (Cth) and the applicant is resident of another State – whether PIC would be exercising federal jurisdiction when determining issues under sections 4, 9, 9A, 11A, 14, 25,26, 32A, 33, 36, 37, 38, 59, 60 and 66 of the Workers Compensation Act 1987 and s.4 of the Workplace Injury Management and Workers Compensation Act 1998.
Constitution Act 1902 (NSW); Judiciary Act 1903 (Cth); Personal Injury Commission Act 2020; Retail Tenancies Act 2010; The Commonwealth Constitution; Transport Administration Act, 1988; Workers Compensation Act, 1987 (NSW); Workplace Injury Management and Workers Compensation Act 1998; Apprenticeship and Traineeship Act 2001.
Environment Protection Authority v Green [2024] NSWLEC 81
SENTENCING – early pleas of guilty by landowner to three breaches of Local Land Services Act 2013 (NSW) arising from private native forestry operation – strict liability offences – forestry operation undertaken by contractors – extent of environmental harm significant – mitigating circumstances – assistance to authorities in voluntary reporting of unlawful activities – restoration order made.
Biodiversity Conservation Act 2016 (NSW), ss 1.3, 1.6, 13.12, 13.20; Crimes (Sentencing Procedure)
Spencer v Kiama Municipal Council [2024] NSWLEC 80
CIVIL PROCEDURE – parties – joinder – neighbouring property owner to development application – Joinder not necessary for all matters in dispute to be effectively and completely determined.
CIVIL PROCEDURE – separate determination of questions – where appropriate – determining separate question not justified.
Civil Procedure Act 2005 (NSW), s 56; Environmental Planning and Assessment Act 1979 (NSW), ss 8.7, 8.15; Kiama Local Environmental Plan 1996, cl 6.7; Uniform Civil Procedure Rules 2005 (NSW), Sch 7, rr 6.24, 28.2.
Palm Lake Works Pty Ltd v Tweed Shire Council [2024] NSWLEC 1461
PRACTICE AND PROCEDURE – amended development application – whether amendment constitutes fresh application – amended class 1 application – extent of Court power pursuant to s39(2) of the Land and Environment Court Act 1979 and s138 of the Road Act 1993 – discretion – motion granted.
Civil Procedure Act 2005, s 64; Environmental Planning and Assessment Act 1979, 8.15; Land and Environment Court Act 1979, s 39; Roads Act 1993, ss 138, 139; Environmental Planning and Assessment Regulation 2000, cl 55; Tweed Local Environmental Plan 2000, cl 31.
Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77
ENVIRONMENT AND PLANNING – consent development application – concept proposal for residential subdivision and detailed proposal for first stage – prior unauthorised works for different subdivision – whether development consent can be granted to amend and use some unauthorised works – mapped coastal wetlands on land – subdivision of whole land but not part of land mapped coastal wetlands – whether development is designated development – applicable environmental planning instrument – current instrument provides for designated development – whether accrued right for application of former instrument – impact on Koala – whether land is a potential koala habitat or a core koala habitat – no development on either habitat – impact on Wallum Froglet – no development in habitat – impact on littoral rainforest – whether sufficient buffer width to protect – use of neighbouring land for native title rights – impact on – whether sufficient buffer to protect – Aboriginal cultural heritage sites – cultural landscape, midden and burial site – impact on – development will not diminish cultural landscape – no development on midden or burial site.
ENVIRONMENTAL PLANNING INSTRUMENTS – saving and transitional provisions – development application lodged under former instruments – former instruments had savings provisions – current instruments do not have saving provisions – operation of Interpretation Act – whether saves accrued right to have development application determined under former instruments.
Biosecurity Act 2015 (NSW); Community Land Development Act 2021 (NSW); Conveyancing Act 1919 (NSW), ss 88B, 195; Environmental Planning and Assessment Act 1979 (NSW), ss 1.5, 4.10, 4.15, 4.16, 4.22, 4.46, 8.7; Interpretation Act 1987 (NSW), ss 5, 30; Land and Environment Court Act 1979 (NSW), s 39; National Parks and Wildlife Act 1974 (NSW), s 90; Public Roads Act 1902; Roads Act 1993 (NSW), s 138; Rural Fires Act 1997 (NSW), s 100B; Water Management Act 2000 (NSW), s 90; Environmental Planning and Assessment Regulation 2021 (NSW), cl 37; Richmond Valley Local Environmental Plan 2012; State Environmental Planning Policy (Biodiversity and Conservation) 2021; State Environmental Planning Policy (Coastal Management) 2018; State Environmental Planning Policy (Koala Habitat Protection) 2019; State Environmental Planning Policy (Koala Habitat Protection) 2020; State Environmental Planning Policy (Koala Habitat Protection) 2021; State Environmental Planning Policy No 14 – Coastal Wetlands; State Environmental Planning Policy No 44 – Koala Habitat Protection; State Environmental Planning Policy No 71 – Coastal Protection; State Environmental Planning Policy (Resilience and Hazards) 2021; Biosecurity (Invasive Ant Carriers) Control Order 2023.
Environment Protection Authority v Forestry Corporation of New South Wales [2024] NSWLEC 78
ENVIRONMENTAL OFFENCES: breach of conditions of Integrated Forestry Operations Approval – conducting unlawful harvesting in environmentally significant areas – pleas of guilty – appropriate sentence – whether environmental harm – whether harm substantial – whether harm foreseeable – whether offender could take practical measures to reduce harm – whether offender had control over commission of offences – whether offender demonstrated contrition and remorse – whether offender is of good character and unlikely to reoffend – comparable cases – application of totality principle – monetary penalty imposed – moiety ordered – publication order made – professional costs ordered – investigation costs refused.
Biodiversity Conservation Act 2016, ss 2.14, 12.8, 13.12, 13.23 and 13.25; Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A, 22 and 23; Criminal Procedure Act 1986, ss 215, 257B, 257G; Fines Act 1999, s 122; Forestry Act 2012, ss 5, 69L, 69M, 69P, 69SA and 69SB; National Parks and Wildlife Act 1974, ss 133, 175 and 194; Protection of the Environment Operations Act 1997, s 120.
Bills introduced – Government
Government Sector Finance Amendment (Integrity Agencies) Bill 2024 – Introduced LC 8 August 2024
Industrial Relations Amendment (Administrator) Bill 2024 – Introduced LA 8 August 2024
Local Government Amendment (Rural and Remote Councils) Bill 2024 – Introduced LA 7 August 2024
Regional Development Amendment Bill 2024 – Introduced LA 7 August 2024
Universities Legislation Amendment Bill 2024 – Introduced LA 7 August 2024
Retail Trading Amendment (Anzac Day Trading Hours) Bill 2024 – Introduced LA 6 August 2024
NSW Self Insurance Corporation Amendment (Special Liability Insurance) Bill 2024 – Introduced LA 6 August 2024
Bills introduced – Non-Government
Water Management Amendment (Water Access Licence Register Reform) Bill 2024 – Introduced LA 8 August 2024
Bills revised following amendment in Committee
Transport Administration Amendment Bill 2024 – Introduced to LC for concurrence 7 August 2024
Bills passed by both Houses of Parliament
Coal Mine Subsidence Compensation Amendment Bill 2024 – Passed by both Houses 8 August 2024
Water Management Amendment (Central Coast Council) Bill 2024 – Passed by both Houses 8 August 2024
Prevention of Cruelty to Animals Amendment (Transparency and Fit and Proper Persons) Bill 2024 – Passed by both Houses 7 August 2024
Rice Marketing Amendment Bill 2024 – Passed by both Houses 7 August 2024
Bills assented to
Statute Law (Miscellaneous Provisions) Act 2024 No 47 – Assented to 09 August 2024
Proclamations commencing Acts
Energy Legislation Amendment (Clean Energy Future) Act 2024 No 41 (2024-336) – published LW 2 August 2024
Regulation and other miscellaneous instruments
Children (Education and Care Services) Supplementary Provisions Regulation 2024 (2024-339) – published LW 9 August 2024
Crimes (Forensic Procedures) Regulation 2024 (2024-340) – published LW 9 August 2024
Education (School Administrative and Support Staff) Regulation 2024 (2024-341) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-342) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-343) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-344) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-345) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-346) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-347) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-348) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-349) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-350) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-351) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-352) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-353) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-354) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-355) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-356) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-357) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-358) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-359) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-360) – published LW 9 August 2024
Final Determination [Biodiversity Conservation Act 2016] (2024-361) – published LW 9 August 2024
Fisheries Management Amendment (Threatened Species Conservation) Order 2024 (2024-362) – published LW 9 August 2024
Prisoners (Interstate Transfer) Regulation 2024 (2024-364) – published LW 9 August 2024
Public Health Amendment (Interstate Prohibition Orders) Regulation 2024 (2024-365) – published LW 9 August 2024
Regional Development Amendment (Advisory Council) Regulation 2024 (2024-366) – published LW 9 August 2024
Unexplained Wealth (Commonwealth Powers) (Referral Powers) Proclamation 2024 (2024-367) – published LW 9 August 2024
Administrative Arrangements (Administrative Changes – Miscellaneous) Order (No 3) 2024 (2024-338) – published LW 7 August 2024
Treasurer’s Direction TD24-12 – Charter of Independence for NSW integrity agencies (2024-337) – published LW 6 August 2024
Environmental Planning and Assessment Amendment (Consent Authority) Regulation 2024 (2024-325) – published LW 2 August 2024
Heritage Amendment (Applications) Regulation 2024 (2024-326) – published LW 2 August 2024
Local Government (General) Amendment (Elections) Regulation 2024 (2024-327) – published LW 2 August 2024
Museum of Applied Arts and Sciences Regulation 2024 (2024-328) – published LW 2 August 2024
Pipelines Amendment Regulation 2024 (2024-329) – published LW 2 August 2024
Referable Debt Order (2024-330) – published LW 2 August 2024
Transport Legislation Amendment (Laboratories) Regulation 2024 (2024-331) – published LW 2 August 2024
Water Management (General) Amendment (Specific Purpose Access Licences) Regulation 2024 (2024-332) – published LW 2 August 2024
Casino Control Amendment (Manager Appointment Extension) (No 2) Regulation 2024 (2024-324) – published LW 1 August 2024
Environmental Planning Instruments
Clarence Valley Local Environmental Plan 2011 (Amendment No 54) (2024-368) – published LW 9 August 2024
The Hills Local Environmental Plan 2019 (Map Amendment No 3) (2024-369) – published LW 9 August 2024
Byron Local Environmental Plan 2014 (Amendment No 43) (2024-333) – published LW 2 August 2024
State Environmental Planning Policy Amendment (Miscellaneous) 2024 (2024-334) – published LW 2 August 2024
State Environmental Planning Policy Amendment (Riverwood) 2024 (2024-335) – published LW 2 August 2024
Bayside Local Environmental Plan (Housing) (Map Amendment No 1) (2024-321) – published LW 31 July 2024
Central Coast Local Environmental Plan (Housing) (Map Amendment No 1) (2024-322) – published LW 31 July 2024
Wollongong Local Environmental Plan (Housing) (Map Amendment No 1) (2024-323) – published LW 31 July 2024
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
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