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Inside track: Construction & Infrastructure

16 July 2019

#Construction & Infrastructure

Inside track: Construction & Infrastructure

In the media

MBA: Workers deserve to know how their money is used
The Government’s reintroduction of laws to ensure that worker entitlement funds have much needed safeguards is a welcome move for the building and construction industry. The Fair Work Laws Amendment (Proper Use Of Worker Benefits) Bill 2019 is essential to address the concerning lack of proper rules and safeguards found in previous inquiries about how redundancy and leave funds operate (04 July 2019).  More... 

CFMMEU and Luke Collier penalised $13,500 for safety breach on Barangaroo site
The Federal Circuit Court in Sydney has imposed penalties totaling $13,500 against the CFMMEU and its then organiser Luke Collier after he refused to follow OHS procedures while on the $163 million Barangaroo Headland Park site on 5 March 2014 (04 July 2019).   More...

Queensland contractor to pay $200,000 after discriminating against subbie following CFMMEU threat
The Federal Circuit Court in Brisbane has found Forest Meiers Construction liable to pay $200,000 in compensation for taking adverse action and discriminating against a tiling subcontractor because they did not have an enterprise agreement with the CFMMEU (02 July 2019).  More... 

A new roadmap sets a course for sustainable homes
A new roadmap for sustainable homes presents a win for builders, consumers, the economy and the environment.  The report reveals that two thirds of Australian home buyers prefer energy efficient homes when given a choice but significant barriers prevent them from turning that desire into reality (01 July 2019).  More... 

NSW

Tradesman convicted in relation to bullying young workers
SafeWork NSW is encouraging businesses to remember mental health at work after a Hunter tradesman was convicted of failing to take reasonable care that his actions did not adversely affect the health and safety of two young workers (09 July 2019).  More... 

Queensland 

$45 million in upgrades announced for three Gold Coast substations
Three Gold Coast substations are to receive $45 million worth of upgrades, with planning for another $8.5 million project also underway (03 July 2019).   More... 

Solution announced to PI insurance cladding crisis
Master Builders is pleased the government has heeded our calls for a change in the rules for licensing building certifiers. The Minister announced that building certifiers will be allowed to have an exclusion on their professional indemnity insurance for combustible cladding (03 July 2019).  More... 

Infrastructure Australia endorses Government's Bruce Highway and M1 Pacific Motorway investment priorities
The next priorities for billions of dollars in investment in Queensland road upgrades have been endorsed by Infrastructure Australia (IA) with three nationally significant Federal Liberal and Nationals Government-funded project (02 July 2019).   More... 

Practice and courts

ABCB notice: CMI product certification body accreditation suspended in Australia
Thursday, 11 July 2019 - As of 10 July 2019, CMI's accreditation as a product certification body has been suspended by JAS-ANZ.   More... 

AIBS note – 11 July 2019
AZ ANZ announced that they have issued a notice of suspension against CertMark International effective from 11 July 2019. The ABCB have also released a public statement about this development which can be accessed here.   

Infrastructure Australia: Priority lists
It now includes three new Priority Projects for Queensland (02 July 2019):
Bruce Highway – Cairns Southern Access Corridor – Stage 3: Edmonton to Gordonvale
M1 Pacific Motorway (Eight Mile Plains to Daisy Hill)
M1 Pacific Motorway (Varsity Lakes to Tugun) 

OFSC: Changes to Accredited Contractor reporting requirements 2019
Key Dates:  Scheme Project information, including End of Project information will be reported on the new Scheme Biannual Report from 1 July 2019 and the first Scheme Biannual Report, for the January to June 2019 reporting period, is due by 31 July 2019.  More... 

GBCA Important Deadlines - Green Star certification for your project
Many project teams have timelines set around major events. To support this, these guidelines below (based on typical time frames), which specify the deadlines you’ll need to meet in order to have your project certified in time for key milestones in 2019. Deadlines are from 08 April – 04 November 2019.  More... 

Queensland

Consultations
Proposed levy structure to fund the Office of Groundwater Impact Assessment mining-related functions
DNRME invited stakeholders feedback on proposed options for a levy structure to fund the expanded role of the OGIA in the mining sector. Which has now been closed and responses are being considered. 

Extraordinary Ministerial construction council meeting - July 04 2019
The Ministerial Construction Council met in Brisbane on 2 July 2019 to continue discussions on the challenge of professional indemnity insurance for building industry professionals.  More... 

Queensland Reconstruction Authority: Expressions of interest infrastructure resilience projects in disaster-hit communities
The Betterment Fund is the largest ever approved in Australia. It’s also the first time that funding will be available for both state and local government-owned infrastructure. Further information about eligibility and expression of interest applications can be found here. Deadline for expressions of interest is until 19 July 2019.

HPW: Plumbing and drainage reforms
To further protect the health and safety of Queenslanders, a new mechanical services licence, which includes medical gas work, will make sure that critical building services such as heating and cooling systems are delivered in a way that will protect the public from the dangers of legionella and other diseases. New plumbing laws and regulations are coming into on 1 July 2019.   More... 

Note: Safer Buildings: Parts 2 and 3a deadlines extended
Bodies corporate and building owners across Queensland have been given additional time to complete Parts 2 and 3a of the Safer Buildings combustible cladding checklist. The new deadlines will be as follows:
Part 2: extended from 29 May 2019 to 31 July 2019
Part 3a: extended from 27 August 2019 to 31 October 2019.   More... 

Cases

Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd [2019] FCA 1070
INDUSTRIAL LAW – admitted contravention of s 501 of the Fair Work Act 2009 (Cth) (the “FW Act”) – civil penalties – right of entry pursuant to pt 3-4 of the FW Act – whether entry was refused – meaning of the phrase ‘refuse entry’ – proportionality of penalty to contravening conduct – declaration of contravention of the FW Act – declaration sought by consent – principles relating to the making of a declaration – penalty imposed – no declaration made

Gindalbie Metals Limited, in the matter of Gindalbie Metals Limited (No 2) [2019] FCA 1066
CORPORATIONS - scheme of arrangement - application for orders to approve two schemes of arrangement - where low attendance by shareholders at the meetings - where late service on three shareholders - orders made approving both schemes - Corporations Act 2001 (Cth) ss 411, 412, Chapter 6

Lucas Earthmovers Pty Limited v Anglogold Ashanti Australia Limited [2019] FCA 1049
CONTRACTS – Applicant contracted with the Respondents to construct an access road to a remote mine site – various matters led to the incurring of additional costs and to construction delays – claim for damages for breach of contract - claim for payment of the time-related costs incurred by the Applicant in respect of additional work – claim for other consequences of the additional time taken and the additional work – claim for payment of variations.
Held: claim for the time-related costs fails but other aspects of the breach of contract claim succeed in part.
CONSUMER LAW – claims of misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law – claim that in entering into the contract the Applicant relied on four representations made by the Respondents which were misleading or deceptive – claim that if the representations had not been made the Applicant would not have entered into the contract at all or, alternatively, would have entered into a contract on schedule of rates terms which assigned the risk and cost of additional work and delay to the Respondents – Applicant did not prove that the representations were made or that they were misleading or deceptive – Applicant did not prove that it relied on the pleaded representations in entering into the contract – Applicant did not establish loss by reason of the alleged misleading or deceptive conduct.
Held: contraventions of s 18 of the ACL not made out.

Australian Building and Construction Commissioner v Ingham (The 180 Brisbane Construction Case) [2019] FCA 1052
INDUSTRIAL LAW – alleged contraventions of Fair Work Act 2009 (Cth) ss 417(1) and 500 – whether contractors and subcontractors authorised or agreed to conduct of Union representatives – entry permits and entry notices – whether “open door” policy or requirement for Union representatives to give notice before entering site – where Union representative claimed to have entered site to raise money for injured Union worker and workers took opportunity to raise workplace issues – genuine and reasonable concerns about imminent risks to health and safety
INDUSTRIAL LAW – whether Union representatives organised work stoppages – whether stoppages authorised by enterprise agreements – interpretation of “industrial action” – onus of proving the “organising” of industrial action within meaning of Fair Work Act 2009 (Cth) s 19(2) – whether Union representatives exercised or sought to exercise rights under Fair Work Act 2009 (Cth) Pt 3-4 – whether Union representatives “involved in” contraventions of civil remedy provisions – accessorial liability – aiding and abetting contraventions
INDUSTRIAL LAW – whether respondent Union liable for contraventions of Union representatives pursuant to Fair Work Act 2009 (Cth) ss 550 and 793 – whether Union representatives intentionally hindered or obstructed or acted improperly – whether Union representatives acted with actual or apparent authority – where individual respondents “clothed with apparent authority”
Fair Work Act 2009 (Cth) ss 12, 19, 19(1), 19(1)(b), 19(2), 19(2)(a), 19(2)(b), 19(2)(c), 417, 417(1), 417(1)(a), 478, 484, 486, 487, 489, 500, 500(2), 512, 545, 550, 550(2)(c), 793, Pt 3-4 Div 2, Pt 3-4, Pt 3-4 Div 2 Subdivs A, AA, B, Pt 3-4 Div 3, Pt 3-4 Div 4
Workplace Relations Act 1996 (Cth); Property Law Act 1974 (Qld) s 55; Work Health and Safety Act 2011 (Qld) ss 117, 119, 121(1), 122 

AIG Australia Limited v Kaboko Mining Limited [2019] FCAFC 96
INSURANCE - professional indemnity insurance - directors and officers liability policy - appeal from decision of primary judge on preliminary question - whether an insolvency exclusion precluded cover under the policy for the claims made by the first respondent - proper construction of the insolvency exclusion - whether the subject matter of the Claim must have the alleged insolvency link - appeal dismissed
Corporations Act 2001 (Cth) ss 436A, 588G

Miskelly v Roads and Maritime Services [2019] NSWCATAD 133
ADMINISTRATIVE LAW – access to government information – cabinet information
ADMINISTRATIVE LAW – whether the Tribunal has jurisdiction to review a decision of an agency that information is ‘out of scope’
The applicant, Greg Miskelly, seeks review of a decision of the first respondent,  Roads  and Maritime Services (RMS), to refuse him access to specified information it holds concerning the costs/budget estimates for the Sydney Gateway Project. The applicant sought access to this information under the provisions of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). He contends that there is a manifestly overwhelming public interest in the disclosure of this information so that members of the public can know the estimated to costs of this major public infrastructure project.

Champion Homes Pty Ltd v Lal [2019] NSWCATAP 170
BUILDING AND CONSTRUCTON – s 48O Home Building Act 1989 – work order – appropriateness of an order New South Wales. The respondents filed home building application HB 16/36337 on 10 August 2019. The application identified the wrong issue. Section 48MA of the Home Building Act 1989 (NSW) (HB Act) contemplates a work order. 

In the matter of Wiggins Island Coal Export Terminal Pty Ltd [2019] NSWSC 831
CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders convening meetings of members to consider and, if thought fit, approve a proposed scheme of arrangement – whether requirements to order scheme meetings are satisfied. 
CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders approving proposed scheme of arrangement – whether scheme is fair and reasonable so that an intelligent and honest member of the relevant class, properly informed and acting alone, might approve it.

Palmgrove Holdings Pty Ltd t/a Carruthers Contracting The Trustee for Hardev Property (Dev 10) Unit Trust t/a Hardev Property 10/07/2019
Adjudicated amount $335,913.84 including GST ($305,376.22 + GST)

Ertech (Queensland) Pty Ltd and Brisbane City Council 12/07/2019

Matherson Construction Group Pty Ltd v Juilliard Corporation Pty Ltd (Civil Claims) [2019] VCAT 1014
Contract for works – Section 60 of the Australian Consumer Law – works to be carried out with due care and skill – works limited by the terms of the contract and condition of premises.
For the reasons provided in writing, the Tribunal orders and directs that: Juilliard Corporation Pty Ltd (ACN 007 226 904) must pay Matherson Construction Pty Ltd (ACN 128 984 592) the sum of $18,155.45. Juilliard Corporation Pty Ltd (ACN 007 226 904) is to reimburse Matherson Construction Pty Ltd (ACN 128 984 592) the application fee of $609.70.

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 publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.

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