Legislative Snapshot

• Home Building Amendment (Fees) Regulation 2007 (NSW)

• Home Building Amendment (Authorities) Regulation 2007 (NSW)

• Climate Change and Greenhouse Emissions Reduction Act 2007 (SA)

• Legal Profession Act 2007 (Qld)

• Building and Construction Industry Improvement (Accreditation Scheme) Amendment Regulations 2007 (No.1) (Cth)

Occupational Health and Safety Regulations 2007 (Vic)

The Occupational Health and Safety Regulations 2007 (Vic) (Regulations) that have recently come into effect substantially revise Victorian workplace safety practices. While the Regulations specifically concerning health and safety practices in the construction industry do not come into operation until 1 July 2008, it is necessary for both principals and contractors to consider their impact on future projects.

The Regulations relating to the occupational health and safety practices in the building and construction industry are divided into four divisions.

The first division seeks to control the risks of injury on construction sites by requiring work practices designed to limit any risk to health and safety. It does so by requiring an employer to:

• eliminate any risk to health or safety associated with construction work so far as is reasonably practicable (for example, by substituting a new activity that gives rise to a lesser risk to health or safety, isolating persons from the hazard or using engineering controls); and

• prepare a 'safe work method statement' that outlines the hazards and risks to health or safety associated with 'high risk construction work' (for example, the removal of asbestos, work in confined spaces or work adjacent to roads or railways) and ensure that theThe work is performed in accordance with that statement.

The second division concerns the duties of principal contractors and applies to construction contracts entered into after 30 June 2008 where the contract sum is at least $250,000. The Regulations designate the owner as the 'principal contractor' of the workplace where a construction project is being carried out, although the owner may appoint another entity to fulfil that role.

The principal contractor is required to prepare a health and safety coordination plan before the construction work commences and then monitor, maintain and keep up to date that plan in the course of the construction work.

The third division requires an employer to provide induction training for construction workers before that person may be registered to perform construction work. The Regulations provide a 28 day exemption period from this requirement, provided that an application has been made by the employer for that employee to receive induction training. In that 28 day period, the employer also must ensure that the employee receives direct supervision, instructions and monitoring appropriate for the construction work to be performed by that person.

Finally, the fourth division requires an employer to notify the Victorian WorkCover Authority of an intention to perform construction excavation work on a shaft, trench or tunnel where the excavation will be of sufficient dimensions to allow a person to enter or the excavation gives rise to a risk to the health or safety of any person.

Although these requirements are yet to come into effect, participants in the construction industry should be made aware of them and the resulting impact upon their future workplace practices.

The Home Building Amendment (Fees) Regulation 2007 No. 343 (NSW) commenced on 20 July 2007 and amends the Home Building Regulation 2004 (NSW).

The object of this amending Regulation is to increase certain application fees payable in connection with the administration of the Home Building Act 1989 (NSW) (Act), to increase the fee for the issue of a certificate under section 131 of the Act (certificate evidence) and to introduce the option of a three year contractor licence and building consultancy licence.

The Home Building Amendment (Authorities) Regulation (NSW) (Amending Regulation) commenced on 6 July 2007. The Regulation amends the Home Building Regulation 2004 (NSW).

The Amending Regulation seeks to make clear that certain licences, permits and certificates will not be issued, renewed or restored to:

• an undischarged bankrupt; or

• a director or manager of an externally-administered body corporate (within the meaning of the Corporations Act 2001 of the Commonwealth) except in a case of a voluntary winding up of the body corporate,

either at the time of application or within the period of three years before the date of the application.

This Act commenced on 3 July 2007.

The Act:

• introduces the statutory setting of targets for reducing greenhouse gas emissions and increasing renewable energy consumption. In particular, target sets are to reduce greenhouse gas emissions within the state by at least 60% by 2050 and increase the proportion of renewable electricity generated so that it comprises at least 20% of electricity generated in the State by 2014;

• creates the Premier's Climate Change Council, whose primary function is to provide independent advice to the Minister for Sustainability and Climate Change in the performance of the Minister's functions;

• empowers the Minister to create voluntary offset programs and sector agreements, though it should be noted that the Minister is not obliged to do so and there is no provision for incentives to encourage participation in these programs; and

• creates an offence for those who provide false or misleading information to the Minister under the Act.

The Legal Profession Act 2007 (Qld) (New Act) commenced on 1 July 2007. The New Act repeals the Legal Profession Act 2004 (Qld) (Old Act).

The New Act includes an amended definition of 'in-house legal services'. In Queensland, a practising certificate issued to a lawyer employed by a corporation must be made subject to a condition that the lawyer not engage in legal practice other than for providing 'in-house legal services'.

Under the Old Act, the definition of 'in-house legal services' allowed a lawyer employed as in-house counsel to provide advice to the corporation regarding a proceeding or a transaction in which the corporation or a related body corporate is a party. This definition, strictly interpreted, did not permit the giving of advice to the related entity directly.

Under the New Act, the definition of 'in-house legal services' was expanded to allow for the lawful provision of advice by in-house counsel to both their employer and its related entities directly. This amendment more appropriately reflects the commercial reality of the role of in-house legal counsel in large corporations with numerous related subsidiaries.

The Building and Construction Industry Improvement Accreditation Scheme) Amendment Regulations 2007 (Cth) (Regulations) commenced on 25 May 2007.

The Regulations amend the Building and Construction Industry Improvement (Accreditation Scheme) Regulations 2005 (Cth) (Accreditation Regulations).

Under the Accreditation Regulations persons wishing to enter into building contracts with the Commonwealth or Commonwealth authorities must be accredited under its established Occupational Health and Safety accreditation scheme (Scheme).

The Regulations modify the application of the Scheme so that the contracting person does not have to be accredited under the Scheme, provided that:

• under the relevant contract, the contracting person is required to engage acredited persons to carry out the actual building work; and

• the contract is approved by the Federal Safety Commissioner before it is signed on behalf of the Commonwealth or a Commonwealth authority.

The amendments ensure that those persons who actually carry out the building work are accredited whereas persons such as developers and consortiums, who do not necessarily undertake the building work, do not require Scheme accreditation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.