Norman Waterhouse
   
Norman Waterhouse

 

 

Normans Briefly

In this issue

Welcome to the June edition of our Local Government Briefly.

>   Norman Waterhouse Annual Local Government Conference
>   Welcome back Amanda Green!
>   Employment – Early 'bullying' decision examines the nature of 'reasonable management action'
>   Regulatory – Another local government prosecution success under the Food Act 2001
>   Environment, Building and Planning – Jailed for contempt
>   Property, Infrastructure & Development – Rights of way Part 1 - What are they and how may they be created?
>   Governance and Regulatory – Is your order-making policy compliant?
>   Environment and Town Planning – ‘One Stop Shop’ for environmental approvals in South Australia

Norman Waterhouse Annual Local Government Conference

Friday 8th August
Sanctuary Adelaide Zoo

Full program out now!

Norman Waterhouse are celebrating 25 years of the Normans Local Government Conference, South Australia's leading conference for local government.

Registrations now open.


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Welcome back Amanda Green!

We are happy to announce Amanda Green, Senior Associate in the Employment and Industrial Relations Team, will be returning from Maternity Leave in early July.

Amanda can be contacted for assistance and advice  in relation to all your human resource and workplace issues on (08) 8217 1306 or agreen@normans.com.au



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Employment – Early 'bullying' decision examines the nature of 'reasonable management action'

Last month’s decision of the Fair Work Commission (FWC) in Ms SB [2014] FWC 2104 was the first substantive, contested decision of the new bullying jurisdiction of the FWC (which applies to all private sector employers and, as we have discussed previously, may apply to many local government councils unless a change in the law occurs).

The decision relates to the unusual situation of subordinate employees allegedly bullying a manager. The decision also contains informative examination of some key concepts, including the term ‘reasonable management action’.

The facts

An employer received a complaint made by a subordinate employee against a manager (names of parties were suppressed by the FWC). The employer investigated the complaint through the engagement of an external investigator (a law firm), and the complaint was found to be unsubstantiated.

A further, similar complaint was lodged later against the same manager, by a different subordinate employee. The manager brought proceedings in the bullying jurisdiction of the FWC, alleging various circumstances constituted ‘bullying’, including that:

  • The employer opted to receive and investigate the complaints against the manager,
  • After the first complaint was dismissed, the employer failed to prevent similar unfounded claims being lodged in the future; and
  • The Manager was the target of various malicious rumours and gossip and received insufficient support from the employer.

Definition of ‘bullying’

In dealing with the application, the FWC looked at the definition of ‘bullying’ set out in Section 789FD(1) of the Fair Work Act 2009 (Cth) (FW Act). That definition provides that a person is bullied if an individual or group of individuals:

‘repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member, and that behaviour creates a risk to health and safety’

The FWC examined all elements of this definition. The FWC determined that it is not necessarily the same behaviour that must be repeated; the term may apply to a range of behaviours over time (but there must be at least more than one incident). Additionally, the FWC held that whether conduct is ‘unreasonable’ is a matter to be determined on a case-by case basis, taking into account all relevant circumstances. Regarding the ‘risk to health and safety’, the FWC found that only a possibility of danger needs to demonstrated, not an actual danger.

However, perhaps the most important discussion was made in relation to the ‘reasonable management action’ provision in Section 789FD(2) of the FW Act, which states that the term ‘bullying’:

‘does not apply to reasonable management action carried out in a reasonable manner’.

Reasonable management action

The FWC importantly recognised that, when viewing management practices, it will always have the benefit of hindsight. Accordingly, the FWC held that ‘reasonable’ does not necessarily mean ‘perfect’ or ‘ideal’. Rather, the FWC will consider the actual actions or omissions (not simply the applicant’s perception of them) and determine whether they were reasonable in the circumstances that existed at the relevant time and in light of the knowledge of those parties involved.

The simple fact that a process could have been undertaken in a matter that was ‘more reasonable’ will not render a process as overall ‘unreasonable’. However, the FWC noted that any significant departures by an employer from established policies and procedures will tend to indicate unreasonableness (unless there was a valid reason for the departure).

The FWC ultimately dismissed the manager’s application, finding that there was no ‘bullying’ behaviour towards the manager. The FWC further noted that the employer’s actions of receiving and investigating complaints by employees against the manager were reasonable and prudent. The FWC also found no failings regarding the level of support offered to the manager. The manager was in fact offered support, which the manager opted not to accept.

Implications for employers

As previously stated, the bullying jurisdiction of the FWC applies to all private sector employers and possibly many local government councils as well. Moreover, it is important to note that bullying is a risk to health and safety under the Work Health and Safety Act 2012 (SA), which applies to all employers in South Australia.

It is no coincidence that the definition of bullying in Safe Work Australia’s Guide for Preventing and Responding to Workplace Bullying uses a virtually identical definition of bullying to the FW Act (including an exemption for ‘reasonable management action’). Accordingly, it is likely that the FWC’s reasoning in its bullying jurisdiction will be taken into account in prosecutions for alleged bullying-related contraventions of workplace safety legislation.

While the FWC has stated that procedures for dealing with bullying need not be ‘perfect’ to be considered ‘reasonable management action’, it is of course necessary to have some kind of policy and procedural framework in place. Without such a framework being developed, implemented and effectively communicated to all employees, an employer will find it difficult to argue that its method of dealing with potential bullying is reasonable.

As a minimum, policies, procedures and management practices relating to bullying will need to be transparent and supportive of the involved parties, and must adhere to procedural fairness requirements. Policies and procedures should be followed closely in light of the FWC’s stance that deviations from policies and procedures will be taken into account when determining whether management action is ‘reasonable’.

For more specific information on any of the material contained in this article please contact Sathish Dasan on 08 8210 1253 or sdasan@normans.com.au.



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Regulatory – Another local government prosecution success under the Food Act 2001

The recent successful prosecution of Coles Supermarkets Australia Pty Ltd (Coles) for offences under the Food Act 2001 (SA) by the City of Onkaparinga once again demonstrates the regulatory potency of prosecutions under food safety legislation. The prosecution also illustrates that the strong stance of the courts against breaches of food safety legislation is here to stay.

The Coles prosecution

The City of Onkaparinga secured convictions and a $31,500 fine plus $10,000 in costs (which must be paid to the Council) against Coles for displaying for sale out-of-date smallgoods at its then-new McLaren Vale premises. The infringements were detected by officers of the Council during a routine safety inspection, and were the result of skipped date checks and other systemic failures. The Magistrates Court concluded that ‘[t]hese offences occurred in the context of a serious breakdown of the defendant’s internal procedures in more than one respect.’

These failures by Coles – along with other recent successful South Australian local government food prosecutions against Woolworths and Foodland – demonstrates that even food industry leaders will have lapses in food safety and hygiene procedures. The importance of identifying such faults and ensuring that all operators are deterred from repeating such faults was emphasised by the Court, which stated in respect of Coles that:

‘[b]eing such a large operator carries with it the risk that a failure of a system may expose larger numbers of customers to the potential consequences of that offending. The defendant assumes that risk and the obligation to take all necessary steps to guard against it’.

Even in spite of prompt rectification of wrongdoing, remorse, negative publicity, and guilty pleas on the part of Coles, the Court nevertheless imposed a fine of nearly half of the maximum amount it was able to impose. The primary stated purpose of the penalty was ‘general deterrence’, or, in other words, communicating to all other operators that breaches of food safety legislation will not be tolerated and will be treated seriously.

The key message for local government

Food safety prosecutions are a powerful means of securing the compliance of food business operators with laws designed to protect community health. After a series of recent high-profile cases, Courts now take an unambiguously strong stance against food legislation breaches in South Australia and are willing to impose significant fines on large companies, smaller businesses and individuals alike. Moreover, prosecutions are a visible means for local government authorities to demonstrate to the community a commitment to their safety and wellbeing.

Norman Waterhouse is pleased to regularly provide assistance to local government authorities in prosecuting those businesses which put community health at risk. We also regularly provide advice and training concerning effective and reliable investigation and evidence gathering techniques relevant to all facets of local government’s regulatory responsibilities.

For more specific information on any of the material contained in this article please contact Paul Kelly on 8201 1248 or pkelly@normans.com.au.



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Environment, Building and Planning – Jailed for contempt

We undertake a lot of legal enforcement for our clients in the fields of environmental regulation, building regulation and town planning.  We are sometimes asked, “What’s the end game?”

Jail.

The end-game is jail.

From summary offence to imprisonment

Unlike some offences under the Environment Protection Act 1993, there are no offences under the Development Act 1993 which carry a possibility of imprisonment.  So how is it that offenders end up in jail?

The answer is, perhaps surprisingly, persons in breach of the Development Act end up in jail when civil enforcement is taken, court orders are obtained, and the person seriously disobeys the court orders.  Put in legal terms, the person commits a contempt of court when they disobey the court’s orders, and a contempt of court may be punished by imprisonment.

In extreme cases, a contempt of court may be punished by indefinite imprisonment until the contempt is purged.  There are notable cases of journalists who have defied orders to reveal sources, and have consequently been jailed for months, or years, while they remain defiant.

However, in the world of the Development Act, the waters are usually somewhat calmer.  A single finding of contempt is often enough to prompt a person to finally comply with the court orders.  See, for example, Registrar, Environment, Resources and Development Court v Becker [2011] SAERDC 47 in which the contempt was explained as a misunderstanding and no penalty was imposed (although a good behaviour bond was required, and costs were ordered to be paid by Mr Becker).

Recently, however, a counter-example came to light.  Mr Wandel was a potato farmer on Kangaroo Island.  In or around 2003 he engaged in native vegetation clearance, and the construction of a dam, in breach of the Native Vegetation Act 1991.  In 2006 court orders were made requiring him to revegetate the land in a step-by-step fashion over a number of years.  Despite monitoring carried out by the Native Vegetation Council, and its urging him to comply with the orders, Mr Wandel declined to do so.

Contempt proceedings were brought against Mr Wandel in 2013, he was found guilty of contempt in early 2014 and penalty was imposed in May 2014: Registrar, Environment, Resources & Development Court v Wandel (No 2) [2014] SAERDC 13.

The Court found that Mr Wandel had:

  • failed to comply with the orders over an extended period of time
  • had not explained the non-compliance satisfactorily
  • the failure was such as to strike at the system of justice itself
  • abdicated responsibility, and
  • offered only a perfunctory apology and was not particularly contrite.

The Court ordered that Mr Wandel be imprisoned for six months, suspended on condition that he be of good behaviour for three years and to finally comply with the revegetation orders.  A fine of $5,000 was imposed which, if not paid within three months, would be converted automatically to a one-week imprisonment.

Mr Wandel’s case is a salient reminder that enforcement proceedings do have an end-game, and persistence will eventually win justice in the end.

For more specific information on any of the material contained in this article please contact David Billington on 8210 1263 or dbillington@normans.com.au.



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Property, Infrastructure & Development – Rights of way Part 1 - What are they and how may they be created?

We have previously discussed the situation where an easement confers such extensive rights that it cannot be considered to be a valid easement.  We now turn to discuss one of the most common forms of easements in more detail: rights of way.

An easement is a non-exclusive right enjoyed by one person (the Easement Holder) over the land of another person (the Landowner). More specifically, a right of way is a particular type of easement that gives the Easement Holder a right to pass over the Landowner’s property. A right of way therefore also restricts the Landowner’s use of its land to some extent.

There are various avenues for the creation of a registered right of way where a council is the proposed Easement Holder.

First, a Landowner may expressly grant the right to council as the Easement Holder. The creation of a right of way by grant can be made by lodging a Grant of Easement executed by both the Easement Holder and the Landowner with the Lands Titles Office. A plan will also need to have been filed with, and approved by, the Registrar-General if the right of way is only for a portion of the land (which is most often the case).

Secondly, a right of way may be created as part of a division of land (refer to section 90 of the Real Property Act 1886).  

Thirdly, a council may transfer land to the Landowner and reserve to itself a right of way over the land so transferred. The right of way could be reserved as appurtenant to any other land of the council (e.g. adjoining land that requires ongoing access).

A council can also have the benefit of a right of way "in gross". A right of way in gross is not for the benefit of a particular parcel of land (the "dominant tenement" usually required for a valid easement) but exists for the benefit of a statutory authority generally.

Once registered, the right of way will attach to, and pass with, the land. This means that any subsequent purchasers of the Landowner’s property will continue to hold the land subject to the right of way. The right of way may then only be varied or removed if both parties agree to such variation or removal and lodge the relevant instrument with the Lands Titles Office. This makes a right of way a particularly useful and generally permanent method of legally passing through another’s land.

When creating a right of way, the scope of the right being granted should be expressly described. This will help to avoid any uncertainty and hopefully, any future disagreements between the Easement Holder and the Landowner. In South Australia, the conferral of “a free and unrestricted right of way” is deemed to imply the long form right of way set out in Schedule 5 of the Real Property Act 1886. Although different or additional rights may be granted, this is a simple way of granting to the Easement Holder a full and free right and liberty to pass and re-pass over the relevant land for all purposes with either vehicular or pedestrian traffic.

Once a right of way has been registered, many parties then encounter questions regarding the rights and obligations that exist for each party, such as who is responsible for the maintenance and repair of the right of way and what happens if a right of way is interfered with? This will be discussed in further detail in part two of this article in next month’s Briefly.

For more specific information on any of the material contained in this article please contact Yari McCall on 08 8210 1265 or ymccall@normans.com.au.



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Governance and Regulatory – Is your order-making policy compliant?

All councils are required to prepare and adopt a policy under Section 259 of the Local Government Act 1999 (SA) (the Act) regarding the operation of Chapter 12 Part 2 of the Act. The sections within Chapter 12 Part 2 to which the policy must relate are sections 254–259 of the Act.

Section 254 of the Act sets out the following well-known circumstances in which orders may be made:

  • Unsightly condition of land;
  • Hazards on land adjoining a public place;
  • Animals that may cause a nuisance or hazard; and
  • Inappropriate use of vehicles.

Accordingly, some councils’ order-making policies are concerned with those circumstances, and no other circumstances. However, a closer review of the Act demonstrates that some order-making provisions, which fall outside of Sections 254–259, nevertheless state that:

Divisions 2 and 3 of Part 2 of Chapter 12 [being sections 255–259] apply with respect to—

  1. any proposal to make an order; and
  2. if an order is made, any order,

[under the relevant order-making provision].

The order making provisions of the Act which contain this proviso are as follows:

  • Section 216, under which a council may require an owner of a private road to carry out specified roadwork to repair or improve the road;
  • Section 218, under which a council may require an owner of land adjoining a road to carry out specified work to construct, remove or repair a crossing place from the road to the land; and
  • Section 299, under which a council may, upon application of an owner or occupier of land, require the owner or occupier of land adjoining that of the applicant to remove or cut back vegetation encroaching onto the land of the applicant.

Among other things, this means that the order-making policy that all councils must maintain under Section 259 of the Act must deal with not only the order-making circumstances set out in Section 254, but also the order-making provisions of Section 216, 218 and 299 of the Act, as a minimum.

Norman Waterhouse has extensive experience both in governance policy review and regulatory enforcement, and regularly advises upon order-making policies and practices.

For more specific information on any of the material contained in this article please contact Dale Mazzachi on 8201 1221 or dmazzachi@normans.com.au.



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Environment and Town Planning – ‘One Stop Shop’ for environmental approvals in South Australia

On 16 October 2013, the Commonwealth Minister for the Environment, the Hon Greg Hunt MP, announced that the Federal Government had approved a framework for delivering a ‘one stop shop’ for Commonwealth environmental assessments in South Australia.  On 19 December 2013, the Minister declared an intention to expand that framework to also encompass approvals.

Under this framework the Commonwealth will continue to accredit State assessment processes (an ‘accredited process’) under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), creating a single environmental assessment process for some nationally protected matters.

The aim is to simplify the assessment (and later, approvals) process for businesses, create swifter decisions and improve Australia's investment climate, while maintaining high environmental standards.

The ‘One Stop Shop’ framework

The framework for delivering the ‘one stop shop’ involves each participating State or Territory and the Commonwealth:

  1. signing a Memorandum of Understanding;
  2. negotiating an ‘Assessment Bilateral Agreement’ relating to environmental assessment (or updating any existing agreement); and
  3. negotiating an ‘Approval Bilateral Agreement’ relating to environmental approvals by 18 September 2014.

South Australia and the Commonwealth have signed a Memorandum of Understanding, and an Assessment Bilateral Agreement (BA) has been operative since July 2008.

A draft updated Assessment BA (Agreement) has been proposed and released for public comment (see here). Submissions by interested parties on the South Australian draft Agreement closed on 17 March 2014 (see submissions here).
The Agreement will likely replace the existing 2008 Assessment BA.

A draft Approval BA is then likely to be prepared and exhibited.  Draft Approval BAs for NSW and Queensland have recently concluded release for public comment (see here).

An Assessment BA – how does it work?

Like the 2008 Assessment BA, the Agreement allows proposed actions undertaken in South Australia which trigger the operation of the EPBC Act (known as ‘controlled actions’) and which are covered by the Agreement to be assessed by South Australia on the Commonwealth’s behalf under an ‘accredited process’.  However, in the absence of an Approval BA, the final decision as to whether to grant or refuse approval under the EPBC Act continues to rest with the Commonwealth Minister.

It is expected that both South Australia and the Commonwealth will inform proponents of their obligations and the possible requirements for approval under the EPBC Act.

Controlled actions may be assessed and approved under an ‘accredited process’ under the Agreement. These are:

  • a major project under Section 46 of the Development Act 1993 (SA) where an Environmental Impact Statement, a Public Environment Report, or a Development Report must be prepared (EIS, PER, and DR respectively); and
  • an action assessed as a mining lease, a retention lease, a miscellaneous purposes licence, or a program for environment protection and rehabilitation under the Mining Act 1971 (SA).

The Agreement is limited to controlled action which occur wholly in SA and do not have relevant impacts in other jurisdictions (including Commonwealth waters).  The Agreement does not have effect in relation to controlled actions in Commonwealth areas or an action taken by the Commonwealth or a Commonwealth agency.

In short, where a major project (in the Development Act sense) also requires approval under the EPBC Act, the EPBC requirements may be assessed essentially as part and parcel of obtaining approval of the major project under the Development Act.  No separate assessment by the relevant Commonwealth department is required.

Similar provisions apply in relation to mining leases, retention leases, miscellaneous purposes licences, and programmes for environment protection and rehabilitation under the Mining Act.

In essence, the 2008 Assessment BA will be continued in effect, and broadened in scope to incorporate matters assessed under the SA Mining Act.  However, the funding provisions of the 2008 Assessment BA will be removed.  Whether the Federal Government will continue to reimburse South Australia its additional administrative costs arising under the Agreement is not known to this author.

Where a controlled action arises outside of a major project or mining matter, the proponent will have to seek approval from the Commonwealth Minister.

What is the ‘accredited process’ for controlled actions?

For major projects, the Agreement requires that the Development Assessment Commission include the following criteria when it formulates guidelines for the preparation by the proponent of an EIS, a PER, or a DR:

  • an assessment of all relevant impacts that the action has, will have or is likely to have on each matter protected by a provision of Part 3 of the EPBC Act;
  • the provision of enough information about the controlled action and its relevant impacts to allow the Commonwealth Minister to make an informed decision whether or not to approve the controlled action under the EPBC Act;
  • consideration of the matters outlined in Schedule 4 of the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth); and
  • if appropriate, having regard to the objects and purposes of the EPBC Act and any comments from the Commonwealth Minister, to seek public comment on the guidelines before they are made.

In terms of controlled actions arising as part of mining matters, the assessment under the Mining Act must include consideration of the relevant impacts of the action as defined in Section 82 of the EPBC Act.

The assessment undertaken by South Australia is forwarded to the Commonwealth Minister as a draft Assessment Report. If the Commonwealth Minister is of the view that sufficient information has been provided to approve (or not approve) the controlled action, South Australia will then submit a Final Assessment Report.  The Minister can request further information from SA, or may seek their own further information (in which case SA will be given an opportunity to comment on that information).

Next steps

There is no indication of when the Commonwealth and South Australia will finalise and sign the Agreement, although if the NSW experience is anything to go by, a final signed agreement cannot be far away.  In NSW, the NSW Government executed its Assessment BA the day after public consultation had closed in relation to the draft, and the Federal Government executed the Assessment BA the day after that, bringing it in to operation on 20 December 2013.  Public consultation on the NSW draft Approval BA closed on 13 June 2014 (i.e. within six months).

Once the Agreement is executed, it is expected that work will commence on an Approval BA, with a draft for public comment released on or before mid-September 2014.

For more specific information on any of the material contained in this article please contact John Watson on 8210 1245 or jwatson@normans.com.au.



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