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Construction Law Update

September 27th, 2018

In our last construction law update we informed you that the changes to the Building and Construction Industry Payments Act 2004 (BCIPA) being introduced by BIF (the Building Industry Fairness Act 2017), were to be delayed until December 2018.  A summary of the changes to be introduced was detailed here.

It remains to be seen whether the legislation will commence operation in December in its current form or if it will be ‘tweaked’ once again.  One prospect is that the recommendations of the “Murray Review” will be implemented in new legislation.

Murray Review

Mr John Murray, a lawyer and adjudicator, was tasked by the Commonwealth Government to review the disparate security of payment laws in all states and territories.

The headline recommendation from the Murray review is for an Australia-wide harmonised model for security of payment to be adopted, based on the “East Coast Model”.

Specific recommendations for the harmonised security of payment scheme include:

  1. extending the regime to the residential housing sector to enable a builder to make a progress payment claim against an owner-occupier;
  2. abandoning ‘reference dates’, and simply allowing one claim for every named month, or more frequently if the contract provides;
  3. enabling a builder to make a claim where a contract is terminated, for work carried out up to the date of termination;
  4. requiring a claimant to identify that the claim is made under the Act (an existing requirement in Queensland which will not be required if the BIF reforms take effect in December 2018);
  5. requiring a claimant to include a supporting statement with any payment claim stating that all subcontractors have been paid (and a false or misleading supporting statement constitutes an offence);
  6. giving a payment schedule within 10 business days or as the contract provides (the same as the existing legislation);
  7. a claimant serving a notice of intention to adjudicate if the respondent does not give a payment schedule (the same as the existing legislation, but this second chance step is to be removed if the BIF reforms take effect in December 2018); and
  8. a review mechanism for adjudications where the adjudicated amount is $100,000 or more higher than the scheduled amount, or $100,000 or more lower than the claimed amount.

Consistent laws throughout Australia would certainly be a welcome change and provide clarity to the area.  It is a significant difficulty for lawyers and clients that decisions made by adjudicators and Courts cannot necessarily be applied outside the state in which they are made, and that there are very few decided cases on particular issues.

Watch this space for further updates on the proposed changes to Queensland’s BCIPA regime; either some or all of the Murray Review recommendations, or the changes intended by the BIF legislation.

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Badgering, Bullying and Bodies Corporate: The Fair Work Anti-Bullying Laws extend further than you might think

September 27th, 2018

Following a recent decision of the Fair Work Commission on bullying in the workplace, you may be surprised to learn just how far the anti-bullying laws extend.  The definition of “worker” under the Fair Work Act is given a much wider meaning than just the traditional employee/employer relationship.  Bodies corporate and strata managers in particular should be aware of this decision.

Application by Ms A [2018] FWC 4147

The application involved a body corporate committee of a residential strata complex in Brisbane and the company engaged by the body corporate under a management agreement. The company provided maintenance, cleaning and other services to the complex and required that the manager live on site.  It was one of the directors of the company, Ms A, who brought the application alleging she was bullied at work by Mr C, the Chairman of the body corporate committee.

The conduct complained of included constant emails from Mr C, up to seven times per day at all hours of the day, as late as 11.00 pm at night.  The emails were about a number of different issues to do with Ms A’s performance of her duties under the management contract.  Some of the items complained of by Mr C included:

  • the prompt performance of the clearing of leaves and other vegetation on a daily basis;
  • attending to garden maintenance including the trimming of trees;
  • pool maintenance;
  • conducting of regular inspections;
  • keeping the common area toilets clean;
  • being contactable and actually living on site; and
  • the enforcement and policing of by-laws.

Mr C argued that his conduct was not bullying, but reasonable management action carried out in a reasonable manner.

The Fair Work Commission found that the issues raised by Mr C were in fact reasonable issues to raise about Ms A’s performance of the services.  However, a “war engaged in by email” was not an appropriate way to raise them.  Particularly, the use of sarcastic and derogatory language in Mr C’s emails to Ms A combined with the excessive amount of emails (sometimes well outside business hours) and the publication of those exchanges to other members of the committee was unreasonable.

The Commissioner pointed out that, as a member of the body corporate committee, Mr C had access to the resources and information to deal with any disputes in the proper manner.  The strata management company engaged by the body corporate could have advised Mr C on the formal dispute resolution process for body corporate matters.

Mr C was ordered to stop bullying Ms A and given direction as to the subject matter, timing and content of future email correspondence.  The orders also required that telephone communication be used in the first instance to assist with the repair of the working relationship between Ms A and Mr C.

The parties in the proceeding were not indentified in order to avoid any impact on other residents of the complex and to facilitate the resumption of a safe working relationship.

What are the Anti-Bullying Laws

At the beginning of 2014, the Fair Work Act was amended to include anti-bullying provisions that allow the Fair Work Commission to make decisions and orders about bullying in the workplace.

The changes allow a worker who reasonably believes that he or she has been bullied at work to apply to the Fair Work Commission to make an order to stop the bullying conduct.

A worker will be bullied at work if, while at work, an individual or group of individuals repeatedly behaves unreasonably towards the worker and that behaviour creates a risk to health and safety.  In this application the Fair Work Commission was satisfied that bullying had occurred.

Who is a worker

In the Fair Work Act anti-bullying provisions, the term “worker” is given a particularly broad meaning.  It includes an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, apprentice, trainee or volunteer.

As a result the body corporate (and by extension the body corporate committee) have duties to provide a safe working environment to third party contractors.

This is the first time the Fair Work Commission has applied the anti-bullying provisions to a situation outside of the traditional employment relationship.  The decision demonstrates that the anti-bullying laws will extend to all contractors who are performing services or work.

There is also no requirement that a contractor be an individual person.  In this case the ‘contractor’ was a company and it was the director of the company, Ms A, who brought the application under the anti‑bullying rules.

Key points to take away from this decision

The key points to take away from this decision for bodies corporate and strata managers are:

  • The Fair Work Commission found that it had jurisdiction where the resident manager was a company (not just an individual person providing the services). This means that the scope of the anti-bullying laws apply to third party contractors as individuals but also to the employees or directors of third party contractor companies.  Due to the constitutional limits of Commonwealth legislation, the commission may not have jurisdiction if no corporations are involved.
  • It also found that the manager and its employees were “workers” who were owed duties by the body corporate. The anti-bullying legislation applies to workers as defined by the Fair Work Act and this goes well beyond a standard employment relationship.
  • While the chairperson of the body corporate committee was found to be justified in raising many of the issues which he had with the management, it was the manner in which they were raised which was inappropriate.
  • Civility, courtesy and reasonableness in interactions with contractors will not only improve working relationships, but also protect the body corporate from potential liability.

If you would like any further information about this decision, the roles and responsibilities of bodies corporate generally or advice on the resolution of disputes in a strata complex, please contact Lauren Doktor in our property law team on 07 4036 9700.

 

 

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Do you need to attend mediation or Family Dispute Resolution prior to going to court in relation to parenting matters?

September 25th, 2018

The Family Law Act facilitates what is known as compulsory family dispute resolution.  This requires parents to attempt to mediate their parenting dispute with a family dispute resolution practitioner (“FDRP“), prior to commencing proceedings in court.

If parties attend family dispute resolution and they are unable to resolve the issues in dispute, the FDRP will issue a section 60I certificate, which must be filed with any application made by a parent who asks the court to make orders about parenting arrangements for a child.

There are some exemptions to the requirement to file a section 60I certificate with an application for parenting orders.   Some of these exceptions include:

  1. where the matter is urgent; for example, the child has been relocated or abducted without the consent of the other party;
  2. if the court is satisfied that there are reasonable grounds to believe that the child would be at risk of abuse if proceedings were delayed, where there has been child abuse and/or family violence or if there is a risk of family violence;
  3. if one of the parents or parties is unable to participate in family dispute resolution because of some incapacity; and
  4. if the application is in relation to a contravention of an existing parenting order.

If a party is filing an application without a section 60I certificate, they must file with that application an affidavit non-filing of family dispute resolution certificate.

Depending on the circumstances, prior to filing an application for parenting orders without a section 60I certificate, based on the family violence exemption, it may necessary to discuss the potential to attend family dispute resolution with a FDRP.

In some circumstances, a FDRP will issue a section 60I certificate without the need to attend family dispute resolution, if they deem mediation is not appropriate due to family violence considerations.

If you would like further information on the requirement of obtaining a section 60I certificate or attending family dispute resolution, contact our Cairns family lawyers today.

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