Australia: Construction & Infrastructure News – 12 September 2017

Last Updated: 15 September 2017
Article by Troy Lewis, Stephen Burton, Suzy Cairney, Stephen Natoli, Kyle Siebel, Scott Alden, Christine Jones and Helena Golovanoff

Most Read Contributor in Australia, August 2017

In the media – National

Industry and government working together on fire safety
Victoria, New South Wales, South Australia and Western Australia are undertaking reviews of large buildings. The Queensland Government has passed legislation addressing non-conforming building products last month and the New South Wales Government has established an inter-agency Fire Safety and External Wall Cladding Taskforce (04 September 2017). More...

Brisbane firm penalised after terminating contract to avoid trouble with CFMEU
A Brisbane landscaping firm has been penalised more than $40,000 after it terminated the contract of another company which did not have a CFMEU EBA because it did not want "trouble" with the union (05 September 2017). More...

Construction jumps but units drag on building approvals
A big one-off item appears to have put a rocket under construction work completed in the June quarter, while the apartment sector looks to be running out of puff (30 August 2017). More...

Experts appointed to review Australia's building and construction safety issues
In a move to bolster safety standards in the construction industry, the Building Ministers' Forum (BMF) has announced that that Professor Peter Shergold AC and Bronwyn Weir have been commissioned to assess compliance and enforcement problems within the building and construction systems across the country that are affecting the implementation of the National Construction Code (NCC) (29 August 2017). More...

New South Wales

Resources Regulator issues prohibition notice again Mandalong
The Resources Regulator has issued a notice to Mandalong Coal Mine prohibiting all workers from entering the site's underground workings - with the exception of those undertaking safety-related activities (08 September 2017). More...

Audit of New South Wales mine dams finds strong compliance but room to improve
The New South Wales Environment Protection Authority (EPA), Department of Planning and Environment (DPE) and the Resources Regulator have identified areas for industry improvement (08 September 2017). More...

New South Wales Government announces social impact assessment guideline for resource projects
Mining companies will have to engage with local residents and communities about the impacts resources projects will have on their lives under a new assessment guideline, the New South Wales Government announced today (07 September 2017). More...

Queensland

New Ombudsman will resolve land access disputes
A Queensland Land Access Ombudsman will be up and running by next year, after legislation was passed in State Parliament today (07 September 2017). More...

Palaszczuk Government motors ahead with Smithfield Bypass
The long awaited Smithfield Bypass is a step closer after contractors had their first briefing about the $152 million project this week. "Industry stakeholders have been briefed on the scope of the project and provided with indicative dates for release of various construction and engineering consultant contracts (05 September 2017). More...

Community consultation starts on $150m Walkerston Bypass
The Walkerston Bypass project is moving into gear with community consultations underway to gain feedback from local road users and affected landowners on the proposed route. The Walkerston Bypass is a jointly funded project with the Australian Government contributing $120 million and the Queensland Government $30 million. More...

Queen's Wharf Project updated
This month, the demolition and enabling works contractor Probuild continues with services relocation and demolition work across the Queen's Wharf Brisbane precinct. In the background to this work, Destination Brisbane Consortium is working through the Plan of Development assessment process with Economic Development Queensland (EDQ) (31 August 2017). Cbus Property has appointed national Tier-1 contractor Probuild to carry out the design and construct contract at 443 Queen Street in Brisbane. More...

MBA: Building fairness bill tabled
The government has introduced a broad ranging Bill with the primary intent of improving security of payment for subcontractors. Master Builders does not believe that this will happen. The Bill requires the subcontractor or someone else first proving that an offence has been committed and then alerting the QBCC to the alleged offence before punishment can be imposed (30 August 2017). More...

MBA: New legislation for non-conforming products
The legislation provides a definition for a 'non-conforming product' that links it to its intended use, closing a loop-hole that has allowed products that are not fit for purpose to be sold and installed. The definition also includes the very broad and ill-defined term "is not, or will not be, safe". Master Builders will be seeking greater clarity from the government about what this will mean in practice (30 August 2017). More...

Victoria

Infrastructure boom keeps the steel industry strong
The Andrews Labor Government's multibillion dollar pipeline of infrastructure projects is driving a new era for local steel production in Victoria and creating new manufacturing jobs (04 September 2017). More...

Practice and courts

ABCC alert: Unregistered and Informal Agreements
The ABCC has become aware that some contractors may be considering pay rises outside the scope of their enterprise agreements. The Building Code 2016 (the Code) places strict requirements on contractors in relation to entering into unregistered and informal agreements. Contractors are reminded they must not bargain in a way that breaches the Code (06 September 2017). More...

ABCC Code for the Tendering and Performance of Building Work 2016
The Code for the Tendering and Performance of Building Work 2016 applies to companies who wish to undertake Commonwealth-funded building work. Building industry participants covered by agreements made prior to 2 December 2016 have until 29 November 2018 to ensure their agreements are Code compliant.

New South Wales

Have your say on the new WestConnex M4 M5 Link
Environmental Impact Statement (EIS) for the WestConnex M4-M5 Link is now on exhibition, and the NSW Department of Planning and Environment welcomes community feedback. The EIS will be available to view from Friday 18 August and submissions are open until 16 October 2017. To make a submission and view the EIS visit the WestConnex M4 M5 Major Projects page or go to the major projects website. More...

New South Wales Infrastructure Grants for community projects
Local communities can apply for a share of $12.5 million in funding for projects across arts and culture, emergency preparedness and sport and recreation. Applicants have four opportunities to apply for grants throughout the year: August and November 2017, February and May 2018. The new funding guidelines will mean the government can fund a wider range of projects. More...

Queensland

Building Industry Fairness (Security of Payment) Bill 2017
The Building Industry Fairness (Security of Payment) Bill 2017 was introduced to Parliament on Tuesday 22 August, with legislative changes aimed at clamping down on shadow directors and phoenixing activities, and introduces Project Bank Accounts to try and address the issue of security of payment for subcontractors. These matters where identified in the Queensland Building Plan discussion paper that was released for consultation earlier this year. The Bill has been referred to the Public Works and Utilities Committee for review. The Property Council will examine the detail of the Bill to identify the potential impacts of Project Bank Accounts on the property industry, and will lodge a submission by the due date of 7 September. To access a copy of the Bill and Explanatory notes, click here (29 August 2017).

Certification of adjudication applications open
The Certificate in Adjudication course for those QLS members who wish to become adjudicators under the Building and Construction Industry Payments Act 2004 (Qld) will be held on 12, 13 and 14 February 2018. Application forms may be downloaded here or on the QBCC website.

Cases

Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046
INDUSTRIAL LAW – Code for the Tendering and Performance of Building Work 2016 (Cth) – building industry participants required to be compliant with Code – Code prohibits certain types of clauses in enterprise agreements – non-compliant building industry participants and their related entities unable to tender for or be awarded Commonwealth funded building work after 1 September 2017 – where Respondent had a non-compliant enterprise agreement – where Respondent sought its employees' approval to vary non-compliant agreement – where employees voted down the variations.
INDUSTRIAL LAW – civil penalty proceedings – adverse action – s 340 Fair Work Act 2009 (Cth) – adverse action by employer against employees – whether employer took adverse action against employees – threat to dismiss employees – injuring employees in their employment – altering the position of the employees to their prejudice –whether action authorised by or under Fair Work Act – reason for taking action – whether action taken because employees had or had exercised a workplace right – reason for action presumed by s 361 Fair Work Act 2009 (Cth) – accessorial liability of officers of employer for adverse action – where employer through officers informed employees it was considering 'major workplace change' in the form of redundancies.
INDUSTRIAL LAW – civil penalty proceedings – coercion – s 54 Building and Construction Industry (Improving Productivity) Act 2016 (Cth) – where s 343 Fair Work Act 2009 (Cth) does not apply – threat to take action – intent to coerce – whether employer threatened to make employees redundant with intent to coerce employees to vary building enterprise agreement – accessorial liability of officers of employer for coercion – whether officers themselves threatened to take action with intent to coerce employees to vary building enterprise agreement.
Building and Construction Industry (Improving Productivity) Act 2016 (Cth), ss 5, 6, 34, 54, 56, 57, 81, 92, 94, 97. Building and Construction Industry (Improving Productivity) Amendment Act 2017 (Cth). Code for the Tendering and Performance of Building Work 2016 (Cth), ss 3, 6, 11, 11A, 15, 23, 24, Schedule 5.

Ku-ring-gai Council v Chan [2017] NSWCA 226
Appeal allowed. TORTS – negligence – duty of care – pure economic loss – reliance – vulnerability –where council as principal certifying authority retained by owner-builder issued occupation certificate under Environmental Planning and Assessment Act 1979 (NSW), s 109D(1)(c) in relation to structurally and non-structurally defective building works on residential property – where subsequent purchaser of property enjoyed benefit of statutory warranties against owner-builder under Home Building Act 1989 (NSW), s 18B – whether council owed subsequent purchaser duty to take reasonable care in issuing occupation certificate – where owner-builder agreed with council that he was responsible for compliance with laws and approvals – whether council liable to indemnify owner-builder due to careless issue of occupation certificate. Building Professionals Act 2005 (NSW) ss 63, 65; Building Professionals Regulation 2007 (NSW), Pt 4, divs 2, 3.

Quickway Constructions Pty Ltd v Electrical Energy Pty Ltd [2017] NSWSC 1140
Building and Construction – construction contracts – issuance of invoices for construction works – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 13 – construction – statutory right to progress payments – assignment of right to payment – availability of statutory procedure to seek adjudication determinations Building and Construction – construction contracts – issuance of invoices for construction works – dispute concerning progress payments – adjudication determination – natural justice – identification of relevant reference date - Building and Construction Industry Security of Payment Act 1999 (NSW), ss 3, 4, 8, 11, 13, 14, 15, 16, 17, 24, 25, 32.

Contract Control Services v DET [2017] VSC 507
CONTRACTS – Building Contract – Whether incorrect exclusion of non-claimable second class variations – Whether the Construction Contract contained a method for resolving disputes within the meaning of s 10A(3)(d)(ii) of the Building and Construction Industry Security of Payment Act 2002 (Vic) – SSC Plenty Road v Construction Engineering [2016] VSCA 119 – SSC Plenty Road v Construction Engineering [2015] VSC 631 – Branlin Pty Ltd v Totaro [2014] VSC 492.
ADMINISTRATIVE LAW – Judicial review – Decision of adjudicator appointed under the Building and Construction Industry Security of Payment Act 2002 (Vic) – Whether certiorari should be granted to quash the decision.

Legislation

Commonwealth

High Speed Rail Planning Authority Bill 2017
Introduced Senate: 04/09/2017 - The Bill establishes an Authority to advise on, plan and develop high speed rail on the east coast of Australia. The Authority will ensure that the high speed rail (HSR) corridor is preserved so that provision can be made for regular, efficient and cost effective rail transport on the east coast of Australia.

Commission of Inquiry (Coal Seam Gas) Bill 2017
Introduced HR: 04/09/2017 - The Commission of Inquiry (Coal Seam Gas) Bill 2017 (the Bill) provides for the establishment of a Commission of Inquiry. The Commission of Inquiry will inquire into the Coal Seam Gas industry including the negotiating powers of parties involved; impacts on land, water and communities; agreement making and payment for damages and compliance.

Queensland

Bills assented

Building and Construction Legislation (Non-conforming Building Products - Chain of Responsibility and Other Matters) Amendment Bill 2017
Assent Date: 31/08/2017 Act No: Act No. 29 of 2017 Commences: by Proclamation.
The objective of the Act, assented to on 31 August 2017, is to promote the safety of Queensland's buildings by introducing duties on supply chain participants for building products to ensure building products are safe and enabling the Government, through the administering Minister and Queensland's building regulator, the Queensland Building and Construction Commission, to investigate and effectively respond to incidents of non conforming building products.

Workers' Compensation and Rehabilitation (Coal Workers' Pneumoconiosis) and Other Legislation Amendment Bill 2017
Assent Date: 31/08/2017 Act No: Act No. 27 of 2017 Commences: Date of Assent.
This Act, assented to and operational from 31 August 2017, introduces significant changes to improve the workers compensation scheme for workers who have been diagnosed or suspect they may have contracted coal workers' pneumoconiosis, also known as CWP, or black lung, or other types of coalminers' lung dust diseases such as silicosis, asbestosis or other pneumoconiosis.

Strong and Sustainable Resource Communities Bill 2016
Assent Date: 31/08/2017 Act No: Act No. 28 of 2017 Commences: see Act for details. The objective of the Act, assented to on 31 August 2017, is to ensure that regional communities in Queensland, which are in the vicinity of large resource projects, benefit from the operation of those projects. The Act will limit the use of fly-in, fly-out (FIFO) workforces and ensure that local workers from nearby regional communities are employed in the operation of large resource projects.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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