Jul 8, 2022 | Building and Construction Law
Mr David Chandler OAM began his position as the NSW Building Commissioner on 14 August 2019. The former Premier of NSW, Gladys Berejiklian, stated that the appointment of a Building Commissioner is a critical part of the NSW Government’s plan to completely reform the building regulations and conduct in NSW.
What is the Role of the Building Commissioner?
The Building Commissioner will administer a variety of different functions regulating the building industry, namely, driving legislative reforms, investigating misconduct and initiating disciplinary action where necessary.
Legislative Reforms:
This will include a number of different regulations, such as:
- Requiring building practitioners to be registered as practitioners in NSW
- Introducing a new duty of care to make it easier for home owners to seek compensation against building practitioners who have acted negligently
- Ensuring all buildings that are constructed adhere to plans that comply with the Building Code of Australia.
Investigative and Disciplinary Role:
The Commissioner will also be responsible for the investigation into and discipline of misconduct in the building industry. This may include investigating the regulation of building standards, quality and disputes.
What Does This Mean For Apartment Owners?
Apartment owners and purchasers will hopefully be better protected following the appointment of the NSW Building Commissioner. As this multifaceted role was developed with the security of home owners in mind, policies that aim to ensure high standards of building and construction, such as the new duty of care, make seeking compensation for construction misconduct easier and more accessible.
Further Information
It is important that home owners and building developers are made aware of their possible obligations and rights. We can provide additional information and advice to you regarding your building or property situation. If you would like to discuss your concerns with a legal professional please contact us on 9963 9800 or via our contact form.
Jun 26, 2022 | Litigation and Court
Negligence occurs when one party owes another party a duty of care, and fails to take reasonable care to avoid causing damage to that party. It applies to both individuals and businesses. There are several factors that need to be satisfied for an individual or a company to successfully sue for negligence. These are:
- Duty of care;
- Breach of duty;
- Causation; and
- Damage.
Establishing a Duty of Care
A duty of care exists due to the characteristics of the relationship between the parties. Some relationships fall into the ‘established duty category’ – this is a relationship where it is presumed that a duty of care exists. Examples include the relationship between a teacher and pupil, doctor and patient, or employer and employee.
In other instances, a duty of care relationship may exist due to the nature of the relationship between the parties, even if no presumed duty of care exists. For example, if one party has a substantial degree of control and/or reliance over the actions of another, a duty of care may exist. In this instance the party with greater control has a duty to take reasonable care with their actions so that no harm is caused to the reliant party.
Standard of Care and Breach of Duty
If one party owes a duty of care to another, it will be necessary to determine the scope of that duty – to what extent does this duty apply. This is considered to be “the standard of care”. Under the Civil Liability Act 2002 a professional is held to the reasonable standard of their fellow professionals. For example, a doctor or an accountant would be held to the reasonable standard of doctors or accountants and what is widely accepted as competent professional practice within those fields.
In other instances, the standard of care is what a ‘reasonable person’ would do to ensure the possibility of harm is minimized. If the standard of care is not met, then the person has acted in breach of their duty owed to the other person.
Damages and Causation
For a person to be able to sue in negligence, harm as a consequence of the other person’s actions must be shown. Harm caused by negligence could be physical and/or mental. The onus is on the plaintiff to prove harm and that the defendant’s breach of duty has caused the harm. If an intervening event has occurred (i.e. an event that has broken the chain of causation), negligence will not be found. To help determine whether causation is established, the court will consider whether the party would have suffered harm ‘but for’ the actions or omissions of the other party.
Recent negligence case – collapsed balcony
In the recent case of Libra Collaroy Pty Ltd v Bhide [2017] NSWCA 196, the NSW Court of Appeal considered who was to blame for a collapsed balcony.
Bhides owned a residential property in Collaroy, and appointed Libra Collaroy Pty Limited to manage the property. The property was leased out to a tenant. In 2012, a group of school children, including the daughter of the tenant, were on the balcony of the property when it collapsed. There had been a long history of complaints regarding the state and structural integrity of the balcony from the tenant. The tenant sued the landlord (Bhides) and the managing agent (Libra Collaroy Pty Ltd) in the District Court of NSW. Bhides and Libra Collaroy Pty Ltd then issued cross claims against each other seeking indemnity from the other. At first instance, the District Court decided that Libra Collaroy Pty Ltd was 100% liable. The decision was appealed.
The Court of Appeal decided as follows:
- Judgment for the tenant against Bhides
- Judgment for Bhides against Libra Collaroy Pty Ltd.
We can gain the following from the Court of Appeal decision:
- That delegating to a managing agent will not form a defence to a claim for personal injury damages;
- That contractual indemnity may be excused where there is a contribution to the negligence of the other party (contributory negligence); and
- That a tenant who is on notice of a risk of harm may be found liable for negligence if the tenant could have taken steps to remove the risk.
Further Information
As you can see from the Court of Appeal decision above, the law of negligence is not so straightforward and it is important that you seek legal advice from a competent litigation lawyer. If you believe someone has been negligent in their actions toward you or you are being sued for negligence, do not hesitate to contact one of our experience lawyers on 02 9963 9800 or via our contact form here. For more information, check out our blog here.
May 23, 2022 | Building and Construction Law
As of July 2021, reforms under the Design and Building Practitioners Act 2020 (NSW) and the Design and Building Practitioners Regulation 2021 (NSW) have come into effect to provide greater regulations for building and construction practices in response to a number of defective residential apartment blocks.
These reforms have implemented a compliance declaration scheme, as well as further registration and mandatory insurance requirements for practitioners. This article will outline the new obligations for practitioners, including builders, designers and engineers, which are aimed at ensuring a higher standard of safety and quality of work in the building industry.
What ‘Building Work’ does the law regulate?
Pursuant to the Regulations, buildings are separated into ‘classes’. Those that are covered by the new reforms are classified as Class 2 buildings, which are generally residential apartments. This would also include mixed use residential and commercial buildings. However, it is important for practitioners to note that the duty of care requirements extend beyond Class 2 buildings and includes single dwelling homes and other residential building works.
Registration Requirements
If you are performing design or construction work on Class 2 buildings, you are now required under the reforms to be registered. The Act defines the requirements for compliance by building and design practitioners as follows:
- A design practitioner is a person who prepares regulated designs.
- A principal design practitioner is a person who coordinates the provision of design compliance declarations.
- A building practitioner is a person who carries out building work, or a person who is the principal contractor for the work.
The requirement of registration includes minimum qualifications, experience, knowledge and skills in respect of the various classes of practitioner. Designers and builders will also be required to comply with the prescribed Code of Practice and must continue to satisfy professional development requirements in order to maintain their registration under the Act.
There are penalties if a building or design practitioner:
- Fails to provide compliance declarations;
- Makes false or misleading declarations; or
- Makes declarations without the requisite registration.
Compliance Declaration Scheme
The Regulations also require further detail for designs and compliance declarations which must be lodged by a practitioner before an occupation certificate must be issued. This lodgment must take place at four different stages of a project. These are:
- Before the building work commences, a building practitioner must provide a complete set of construction designs and compliance declarations;
- For each variation to a design, the building practitioner must lodge the varied designs and accompanying declarations no later than a day after the variation has commenced. This does not apply to minor variations that do not impact building elements or performance solutions;
- Before applying for an occupancy certificate the practitioner must lodge another compliance declaration, contractor document and variations statements on the NSW planning portal;
- Within 90 days after the occupancy certificate is issued, each regulated design and any other documents that relate to the building work must be lodged.
These required documents can only be provided to the Secretary of the Department of Customer Service by a registered design practitioner or registered building practitioner.
Insurance
From the 1st of July 2023, registered building, design and engineer practitioners will need to be indemnified under a professional indemnity insurance policy. The policy must cover the liability that could be incurred in the course of their work, as determined by the practitioner. These insurance policies must also apply retrospectively to any liability incurred from the point that the practitioner became registered under the new regime.
How Etheringtons can help
It is important that building practitioners are made aware of their obligations. Etheringtons Solicitors can provide additional information and advice to you regarding your building or property situation. If you would like to discuss your concerns with a legal professional please contact us on 9963 9800 or via our contact form.
May 18, 2022 | COVID-19, Employment Law
Australia’s national workplace tribunal, the Fair Work Commission (FWC), has upheld the dismissal of unvaccinated employees for failing to comply with relevant public health orders (vaccination directions) regarding COVID-19. To mitigate the risk of unfair dismissal claims, employers must ensure that procedural fairness is upheld.
Disclaimer: The directives in this article relating to the COVID-19 pandemic may no longer be in force. Please use caution if you are citing legislative material from this article as laws are subject to change. We recommend that you seek the most up-to-date law.
Can an employee be terminated for refusing to be vaccinated?
The cases explored in this article have established a precedent for the lawful dismissal of unvaccinated employees. The cases demonstrate how an employee’s decision to remain unvaccinated against COVID-19 can prevent onsite work. The refusal of vaccination directions can result in an employee being incapable of performing the inherent requirements of their role, thus leading to a valid reason for dismissal.
Floors Aucamp v Association for Christian Senior Citizens Homes Inc [2021] FWC 6669
Background:
In January 2016, Mr Aucamp commenced employment with the Association for Christian Senior Citizens Homes Inc (the Association) in the role of a full-time maintenance manager.
On 4 October 2021, a meeting took place between Mr Aucamp and two representatives from the Association to discuss the vaccination directions that were going to be implemented on 7 October 2021. The Association was aware of Mr Aucamp’s objection to the vaccine. Mr Aucamp agreed to the possibility of dismissal should he refuse to comply with the vaccination orders.
Mr Aucamp’s employment was terminated on 14 October 2021 on the basis that Mr Aucamp could not lawfully enter the premises and was therefore unable to perform his duties.
FWC Decision:
The FWC agreed that Mr Aucamp was required to be vaccinated in accordance with public health orders. The FWC held that Mr Aucamp’s decision to remain unvaccinated rendered him incapable of achieving the expected standards of performance, thereby constituting a valid reason for dismissal.
Background:
On 20 September 2021, the management of Epworth HealthCare (Epworth) informed all employees that mandatory vaccination directions required healthcare workers to ‘be vaccinated and provide appropriate evidence of vaccination, or have a booking to receive a vaccination by 29 October 2021, unless the exception for medical contraindications applied.’
Ms Stevens, a dietician at Epworth, communicated her objections to the vaccine to the executive general manager of Epworth Richmond. The executive general manager advised her that it would not be feasible to ‘perform the key requirements of her role from home.’ Owing to Ms Stevens’ incapacity to attend the workplace, her employment was terminated.
FWC Decision:
The FWC upheld the dismissal of Ms Stevens on the grounds that she refused to provide her employer with proof of her vaccination status.
The FWC rejected the following submissions from Ms Stevens:
- that taking the vaccine was to ‘participate in a “medical trial procedure”’
- that the vaccination directions were inconsistent with federal law
- that the vaccination directions were inconsistent with the Privacy Act 1988
- that the vaccination directions were inconsistent with anti-discrimination legislation
- that the vaccination directions were inconsistent with international human rights conventions
- that Epworth should have lobbied against the Victorian Government to have the vaccination directions revoked
The FWC held that Epworth’s dismissal of Ms Stevens was in accordance with vaccination directions which imposed a duty of care on healthcare facilities. These directions imposed a ‘regulatory requirement’ in relation to the vaccination status of Epworth’s employees, rendering the dismissal lawful.
Likewise, the FWC rejected the contention that the COVID-19 vaccination rollout was a “medical trial,” as the relevant tests had taken place before the Therapeutic Goods Administration approved the vaccines.
What are the obligations of an employer?
It is the responsibility of the employer to take steps to comply with the relevant public health orders. When implementing policies such as mandatory COVID-19 vaccine policy, employers must ensure procedural fairness by undertaking a consulting process with their employees.
To understand how the vaccination directions apply differently across each state and territory, please visit the Fair Work Ombudsman website.
Additionally, if you would like to learn more about the complexities of unfair dismissal claims, please visit our blog.
How Etheringtons Solicitors can help?
A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. If you need further advice or assistance with any employment law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.
Apr 27, 2022 | Family Law
Family law issues such as managing separated families and their complex family law arrangements can be difficult for schools to navigate. This blog will explore some of the common family law questions and then explain the obligations that schools have in situations where issues arise.
Common Questions About Family Law and Schools
What are the Rights and Responsibilities given to Parents and the School?
Parents may contact schools requesting to access their child, or requesting that schools take particular steps or actions in relation to the care of the child. It is important to know that the Family Law Act (1975) Cth does not confer parents with any ‘rights’ and instead imposes the obligation to act in accordance with the best interests of the child when determining how much time each parent is able to spend with their child. This notion is consistent with the school’s duty of care to the students, rather than to the parents. As a school, you must act in a way that protects the best interests of the child, rather than demands from parents.
What is Equal Shared Parental Responsibility?
The Family Law Act (1975) Cth provides that there is a presumption of equal shared parental responsibility. Under this shared responsibility, it is important that both parents are given all information concerning the child. This can include school reports, newsletters and information about school functions. Due to equal shared parental responsibility, if there is a significant long-term issue regarding the child and their education, parents are required to consult with each other and make a genuine effort to come to a resolution. Furthermore, it is not the school’s job to ‘police’ the parenting arrangements. The parents have an onus to provide the school with updated orders and if they provide conflicting instructions the school can require that the parents deal with the conflicting instructions themselves and then report back.
What are Intervention Orders?
Intervention orders are becoming increasingly frequent in family law matters. An intervention order, commonly referred to as a restraining order, is an order that prevents a person from behaving in a particular way towards another person or persons. The interaction between family law orders and intervention orders is often complex. Although a family law order will usually prevail over intervention orders in the event of an inconsistency, in circumstances where the school is concerned for the safety of the child, or there is an emergency situation, the safety of the child comes first.
What are Subpoenas?
A subpoena is a document issued by the court that requires documents to be produced or for attendance of a person at a hearing to give evidence. It is common for parents who are before the court to request access to confidential school documents to give evidence of the status of the child’s wellbeing. If the school responds to the subpoena it is important to seek independent legal advice in order to safeguard against any breaches of privacy for staff or students. There are circumstances where schools may object to a subpoena, such as if a subpoena will have an adverse impact on the child or is too broad. However, if no objection to the subpoena is raised the school must comply in full or risk being in contempt of court.
Common Situations Where Issues Arise:
School Pick Up
In general, court orders will make note of the time that the child spends with each parent. This typically includes who will pick up the child on particular days. It is important to note that step-parents are allowed to have time with their step-child during their spouse’s time with the child. Therefore, requests by one parent that prevent the other parent’s spouse or partner collecting the child from school are typically not granted.
Lack of Court Orders for Pick Up
If the parents do not have a formal agreement or court orders the school is able to request a parenting plan or a written agreement from the parents that details who collects the child on specific days.
Enrolment
In general, both parents are to sign the enrolment agreement at a school and are to be jointly and severally liable for the payment of school fees. In circumstances where one parent wishes to cease payment due to separation, there is no obligation for the school to change the payment arrangements. Changes may be made if the school so chooses, or they may be needed if there have been interim orders made or further evidence has been provided as to the parents’ agreement to change fee payment.
Withdrawal of Enrolment
Due to the equal shared parental responsibility of parents there needs to be consultation between the parents before decisions are made regarding long term issues, including changing the enrolment of the child.
Contact Us
Family law matters can be complex and stressful. Our experienced family law team at Etheringtons Solicitors are ready and willing to assist you with your matter. If you need any assistance please don’t hesitate to get in contact with one of our lawyers via our contact form or call us on 02 9963 9800 for a no-obligation discussion.
