Changes to key workplace legislation, the Murray-Darling Basin Plan controversy, and commercial contract risks and pitfalls were among the topics that proved particularly popular with readers of the Weekly Brief this year.
See below for the list of the top 20 best read articles, plus analysis and updates to key pieces from our Workplace Relations & Safety, Transport, Planning & Environment, and Construction & Infrastructure teams.
Top 20 Weekly Brief articles of 2017
Dealing with the unknown in contracts: Frustration and force majeure
Holding Redlich’s expert guide to the 2017 Federal Budget
A brave new world: Major changes to the construction industry announced
Caution: Indemnity ahead – Court of Appeal overturns decision in favour of CSR
A new standard in procurement: A closer look at ISO 20400: 2017
Labour hire licensing
Employers take note: High Court to determine duty of care owed by employers during workplace investigations
AS 11000: General Conditions of Contract – opportunity lost?
Remondis to pay $982,206 for Chain of Responsibility mass breaches by contractor
The Murray-Darling Basin Plan controversy
457: Closing down soon!
Problematic contract issues: Insurance
A new dawn for bid challenges
Employer unsuccessful in defending unfair dismissal for pornography use
Bad drafting leads to loss of chance damages in tender dispute with local council
Retrenchment due to ordinary and customary turnover of labour disentitles employee to redundancy pay
Can a resolution creating a debt be a means by which trust money is advanced?
Licence to hire: Introducing the Labour Hire Licensing Bill 2017 set to shake up the labour hire industry
How to draft an effective social media policy
National Review of Security of Payment Laws. What can we expect in December?
Royal Commission in relation to the Murray-Darling Basin Plan
Controversy in relation to the Murray-Darling Basin Plan (MDBP) continues following the ABC's 4 Corners episode ‘Pumped’ earlier this year and the allegations made in relation to the MDBP in that program, including allegations about widespread water theft.
The South Australian government recently announced it will launch a state Royal Commission to identify perpetrators of the alleged water theft.
The federal government has stated that it will co-operate with South Australia’s Royal Commission.
NSW's most senior water bureaucrat resigned after the 4 Corners episode which revealed that he offered to share government information with irrigators to help them lobby against the MDBP.
Other developments include that the NSW Ombudsman released in November 2017 its special report to Parliament under Section 31 of the Ombudsman Act 1974: Investigation into Water Compliance and Enforcement 2007-17.
The report concludes that in response to investigations in relation to enforcement and water compliance issues raised by concerned members of the community to relevant regulatory agencies over a long period of time, that the response of those agencies has often been inadequate due to reasons that include:
South Australia’s Murray-Darling Royal Commission will have significant implications for Commonwealth and State departments and agencies with responsibilities in relation to water resource planning and regulation, as well as important implications for water authorities and agribusiness.
We will continue to monitor the announcements in relation to the Royal Commission closely and keep you updated.
Author: Planning & Environment partner Joseph Monaghan. Joseph has recently completed a Doctoral Thesis on the Law and Policy of the Murray-Darling Basin. Please find a link to the thesis here.
Chain of Responsibility – where to next for the national transport laws
Throughout 2017, in each edition of Weekly Brief, our Transport team has examined a different aspect of the Chain of Responsibility (CoR) and Heavy Vehicle National laws, including in the piece ‘Remondis to pay $982,206 for Chain of Responsibility mass breaches by contractor’ which proved to be very popular with readers.
These laws are set to get considerably tougher from mid-2018. Maximum penalties will increase to $3 million for corporations and $300,000, plus up to five years’ imprisonment, for individuals.
In preparation for the introduction of the new system, now is a good time to conduct a review of all transport activities which your business undertakes and to determine whether you have policies and procedures in place which fulfil the primary duty of care under the new HVNL.
We look forward to continuing our CoR coverage in the new year and will keep a close eye on the transition to the new system.
Author: Transport partner Nathan Cecil
The labour hire industry
In our July article Licence to hire: Introducing the Labour Hire Licensing Bill 2017 set to shake up the labour hire industry, we looked at the key aspects of the Labour Hire Licensing Bill 2017 and the implications of this Bill for employers.
The Queensland Parliament passed the Labour Hire Licensing Act 2017 (Qld) in September 2017 and the Act will commence on 16 April 2018.
This Act is relevant to organisations which provide labour hire workers, as well as organisations who use labour hire.
Authors: Workplace Relations & Safety partner Rachel Drew and associate Rose Sanderson
Major changes to the Queensland construction industry
In August we advised of the introduction of the Building Industry Fairness (Security of Payment) Bill 2017 into the Queensland Parliament.
The introduction of this Bill was in accordance with a key election promise and agreement with the then speaker of the house which enabled the Labor party to form government at the time. This Bill proposed significant changes to the construction industry landscape with the introduction of project bank accounts, significant amendments to security of payment legislation and increased regulatory powers for the Queensland Building and Construction Commission (QBCC).
This Bill was subsequently assented to (albeit with some amendments to the Bill) prior to the calling of the recent election. With the re-election of the Labor government it is now expected that the Act will receive royal assent and commence in early to mid-January 2018. Its application to payment claims under the Act will be immediate ensuring that businesses in the industry will need to understand these changes and their operation immediately on their return from the Christmas industry shutdown period.
Authors: Construction & Infrastructure partners Troy Lewis and Stephen Burton
Contract risks - lessons learnt and tips for avoiding common pitfalls
Risks and common pitfalls in commercial contracts continues to be a hot topic of interest for our readers.
This year we began a series of articles to address some of the common issues in commercial contracts to provide our readers with practical tips to help them navigate this space. The first article in the series - Dealing with the unknown in contracts – frustration and force majeure
- considers the doctrine of frustration and force majeure and its effect on the parties' contractual obligations to each other.
Force majeure clauses are often overlooked in contract negotiations. Our article considers the importance of force majeure clauses and how they can be used to overcome the limited application of the doctrine of frustration. The second instalment in the series - Problematic Contract Issues - Insurance - considers insurance clauses when drafting and general insurance issues. Featuring a practical checklist of insurance issues for purchasers and key insurance law takeaways, this article is a must read for anyone keen to understand insurance as a vital component of the risk and liability matrix of the contractual relationship. We look forward to continuing this important series next year.
Often, the courts also provide us with timely reminders of the consequences of poorly drafted contract clauses. This year was no different. Our article Caution: Indemnity ahead – Court of Appeal overturns decision in favour of CSR – reported on the NSW Court of Appeal decision, CSR Limited v Adecco (Australia) Pty Limited  NSWCA 121 – which served as an important reminder of the consequences of a poorly drafted indemnity clause. Indemnities are complex and can have significant consequences, and whilst they are often fiercely negotiated, are not always properly understood. Key lessons from the case include the importance of plain English drafting and using ‘arising out of’ and ‘in connection with’ to achieve a wide indemnity clause.
Another important lesson was learnt from the NSW Court of Appeal in the case of Port Macquarie-Hastings Council v Diveva Pty Limited (2017), summarised in our article Bad drafting leads to loss of chance damages in tender dispute with local council, which highlighted the importance of certainty in contracts and the dangers of ambiguous, imprecise drafting in contracts. The case is also an important decision in the context of damages for breach of contract, particularly loss of chance damages in relation to loss of future opportunities with a government tendering entity.
Key developments in procurement
There were two major developments in the procurement space this year: the release of the world’s first International Standard for sustainable procurement, the ISO 20400: 2017 and the introduction of the Government Procurement (Judicial Review) Bill 2017 into Parliament which, if passed, will be Australia’s first statutory regime for tender challenges. For a more detailed analysis on these developments, refer to our articles A new standard in procurement – a closer look at ISO 20400: 2017 and A new dawn for bid challenges and continue to watch this space for updates on both of these developments in the new year.
Areas of improvement in the construction and infrastructure industry
The security of payment regime continues to be an area of uncertainty for contracting parties in the building and construction industry, especially across jurisdictions. As outlined in our article, National Review of Security of Payment Laws - what can we expect in December? this led to the Federal Government announcing a national review of the security of payment laws - the Murray Review - aimed at addressing the ongoing issues and inconsistencies plaguing the security of payment regime. The final report of the Murray Review is currently being prepared for the Minister and we look forward to reporting on its findings in the new year.
Another development this year in the C&I space was Australian Standards’ announcement that the AS11000 was to be abandoned with all work on the draft AS11000 to cease. Whilst not without its shortcomings, the AS11000 was a chance to create an updated, uniform industry standard that reflected current legislation, and clarified commonly disputed aspects of the contract and its governance that remained uncertain, as further discussed in our article AS 11000: General Conditions of Contract – opportunity lost? Now that its development has been put on hold (whether permanently or temporarily), parties who were awaiting its release (especially principals) should carefully review and improve their current contracts, or consider developing new or bespoke contracts.
Authors: Construction & Infrastructure partner Scott Alden and lawyer Victoria Gordon
Construction & Infrastructure
Troy Lewis, Partner & National Head of Construction and Infrastructure
T: +61 7 3135 0614
Stephen Burton, Partner
T: +61 7 3135 0604
Scott Alden, Partner
T: +61 2 8083 0419
Workplace Relations & Safety
Rachel Drew, Partner
T: +61 7 3135 0617
Transport, Shipping & Logistics
Nathan Cecil, Partner
T: +61 2 8083 0429
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