A new initiative has been launched to address suicide in the construction sector, with New South Wales Minister for Transport, Andrew Constance, officially opening the ‘MATES Stronger Together’ program.

“We know that construction workers are at significantly greater risk of suicide than workers in other industries, sadly a worker takes their life every two days,” Minister Constance said.

“2020 has been one hell of a year, so it’s particularly important at the moment to do everything we can to safeguard the health, safety and wellbeing of our workers.”

Workers on Australia’s biggest public transport project, Sydney Metro, attended the program’s launch which aims to deliver cultural change in the construction industry, highlighting the fact that suicide is not an individual problem, it is something everyone has a responsibility to look out for and prevent.

Minister for Mental Health, Bronnie Taylor, said the program would embed and normalise suicide prevention within a vulnerable population.

“We know over 40 per cent of people who die by suicide have not reached out for professional help, so creating a web of support within high-risk communities like the construction industry is critical in encouraging help-seeking behaviour and saving lives,” she said.

Across Australia, 190 construction workers take their lives each year, six times the number killed in workplace accidents. Young workers in the construction industry are more than twice as likely to die from suicide than other young men.

The ‘MATES Stronger Together’ program is run by MATES in Construction, a partnership between building companies, unions, employer groups, and mental health organisations working to raise the standard of mental health in the industry.

MATES in Construction NSW CEO, Brad Parker, said the program was about giving workers the tools they need to support their mates on-site.

“MATES Stronger Together is about more than raising awareness, it’s about providing workers with practical tools to help them identify warning signs and act with confidence,” Mr Parker said.

“The goal is to create strong networks of support on construction projects across the country, with workers looking out for those suffering from suicidal thoughts and having the confidence to talk to them and connect them with the help they need.”

“Factors like job insecurity, high work demands, financial stress, relationship breakdowns, and mental health challenges can all put workers at risk of suicide,” he said.

“Our goal is to give workers the tools they need to build strong support networks on-site that not only reduce suicide, but seek to eliminate it completely from the construction industry.”

Sydney Metro Chief Executive, Jon Lamonte, added that the importance of healthy social connections had become even more pertinent this year.

“If COVID-19 has taught us anything, it’s just how much we can take ‘connectedness’ for granted and how important our social connections really are,” Mr Lamonte said.

“Our ‘mates’ really do play an important role in preventing suicide in this industry.”

If you, or someone you know, is thinking about suicide or experiencing a personal crisis or distress, please seek help immediately in a life-threatening situation by calling 000 or seek support through one of these services:

Lifeline 13 11 14

Suicide Call Back Service 1300 659 467

NSW Mental Health Line 1800 011 511

Original article from Build Australia.

All of the latest tax news, views and clues for November 2020 from FIA Finance partner HLB Mann Judd.

This Alert addresses:

• Budget personal tax cuts and business concessions now law
• Working from home “shortcut” deduction extended
• Data-matching program: apprentices and trainees
• Small business tax options during COVID-19: ATO reminder
• Insolvency reforms announced for small businesses
• Jobkeeper payments satisfy “work test” for super contributions
• SMSF asset valuations: concession during COVID-19
• Digital AGMs and signatures: legislative determination.

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The Federal Government has recently announced a $1.2 billion wage subsidy program to boost apprenticeship and traineeship commencements.

This means that with the newly available wage subsidies of 50% and fee-free training,* now is a great time for you to employ a formwork apprentice or trainee.

Employers will be able to receive wage subsidies for 50% of a new or recommencing apprentice or trainee, to the value of $7,000 each quarter, until 30 September 2021.

Is my business eligible?

Your business or Group Training Organisation may be eligible if:

• you engage an Australian Apprentice between 5 October 2020 and 30 September 2021, and
• your Australian Apprentice or trainee is undertaking a Certificate II or higher qualification, and has a training contract that is formally approved by the state training authority.

This assistance is limited to the first 100,000 people who have commenced courses. Don't miss out – apply soon.

Contact your local TAFE NSW representative today or call us on 1300 045 737 to discuss your training requirements.

As students are required to have a training contract with a Training Plan Proposal (TPP) in place prior to enrolling, we encourage you to plan ahead and speak to an Apprenticeship Network Provider (ANP) as early as possible. Only once TAFE NSW receives the signed TPP from your ANP will a student receive an online link to complete their enrolment.

From 1 January 2021, the proposed law aims to establish a cost-effective alternative to provide the best opportunity for small and micro businesses with less than $1m in liabilities to continue under the current owners.

It is currently estimated that there are circa 800,000 SMEs with turnover below $2m on JobKeeper that would be eligible to utilise this new restructuring procedure.

There are major issues to be clarified in the interim to determine the practical implementation of how the law will operate in reality, and how potential abuse of the process is safeguarded.

What is going to change?

A new formal debt restructuring process for small business with less than $1m in liabilities. 

Although it appears a major change in approach, the reality is that the change represents a streamline of the current Administration approach for small businesses given the costs, red tape and reporting obligations of the current Administration regime that can make the process uncommercial for Directors and creditors as the costs erode the process.

A new simplified liquidation pathway to enable faster and lower cost liquidation
There are less details available about this process; however, major aspects appear to be reduced investigation, creditor meeting, statutory reporting, simplified dividend process and use of technology to produce a more efficient process.

Other complementary measures
This encompasses other Government initiatives including:

• Extension to the insolvency trading relief (in place since March 2020) to 31 December 2020
• Changes to quantum for creditors to pursing winding up applications (in place since March 2020)
• Encouraging the use of technology in administrations
• Fee waivers for new liquidators and having a new category of practitioner to be Small Business Restructuring Practitioner.

Who is eligible for the new formal debt restructuring & how does it work?

The key aspects of the proposed laws are:

• Companies with liabilities under $1m
• A moratorium from creditor actions (including personal guarantees) will occur following a resolution of the Board/Directors to appoint a Small Business Restructuring Practitioner (SBRP) to assist with the collation of a Plan
• Directors remain in control while they collate the Plan with the assistance of the SBRP
• The Plan is circulated to creditors within 20 business days (4 weeks)
• The Plan can be in any format the directors determine that are expected to involve a discount or delayed timing of any return to creditors. Consideration of the Plan and expected return is likely to be compared to a potential return in a liquidation scenario
• Employee entitlements are paid up to date and settled in full as part of the process
• The SBRP send the Plan and supporting documents to creditors along with certification that the business can meet the proposed repayments and has properly disclosed its affairs
• Creditors have 15 business days (3 weeks) to consider the Plan, then accept or reject the Plan
• All Creditors are bound by the Plan if 50% of the value of creditors vote in favour of the Plan. Secured Creditors are only bound for any shortfall after realisation of the security interest
• Related parties are excluded/prohibited from voting
• Avoids the costs and time of Voluntary Administration, Deed of Company Arrangement (DOCA) that reduces funds available for creditors.

What happens if Creditors do NOT accept the plan?

The Directors can then consider options that include Voluntary Administration or the simplified Liquidation process. It’s unclear if a further proposal can be submitted or if there is any ability for appeal to Court or another oversight mechanism.

Are there any safeguards?

The Government has identified the following safeguards:

“Safeguards will be included to prevent the process from being used to facilitate corporate misconduct such as illegal phoenix activity. They include a prohibition on related creditors voting on a restructuring plan, a bar on the same company or directors using the process more than once within a prescribed period (proposed at 7 years), and the provision of a power for the practitioner to stop the process where misconduct is identified.”

The practical outcome of the above and ability to mitigate abuse of the process will be critical to maximising the impact of the change. There is always risk of abuse of any procedure for use of  Phoenix transactions (transactions that strip assets away and leave creditors in existing structure) where independence is not enforced and supervision inadequate.

Other potential issues relating to adequate record keeping like if a creditor claim is  not reported by a Director that would have  made the entity not eligible (debts then above $1m) or is the creditor bound if it is not involved in the process will need clarification.

So, what is unclear and needs to be resolved before 1 January 2021

There are a number of aspects that need to be clarified to solidify the process:

• The qualifications required for the SBRP – will they be Liquidators or other parties
• What the fixed pricing of the process is and whether it will be commercially viable for SBRPs to ensure the quality of the process. Some parties are indicating $10k to $30k for the role depending upon complexity of the affairs and the proposal and number of creditors. $30k is close to the cost of a small VA under the current regime
• It's unclear why suppliers would supply further goods or services unless on Cash On Delivery (COD) terms once notified of the moratorium given the uncertainty of payment and lack of personal liability for any party. This could impact the viability of the process and the funding structure required
• How the plan is explained/disclosed and detailed – will ASIC create a standard template – including what investigations into the company’s affairs and potential recoveries in a Liquidation are required to be reported to creditors
• If there will be ASIC or Court oversight to deal with disputes on voting, disclosure or eligibility issues
• Secured Creditors approach, including if they are limited by the moratorium, included in the value vote and bound even if they vote against the Plan
• How safeguards are implemented and monitored.

Overall

The changes represent a step towards commercial arrangements for SME businesses that have been used in other jurisdictions and enables Directors to consider options available and then put the preferred option to creditors.

There is similarity with the Safe Harbour corporate plans where Companies/Directors can assess the options and pursue an improved return for creditors compared to Liquidation.

Creditors may have to consider more commercial arrangements and implications for their own businesses due to customers using this process. That could result in one Plan (Plan A) resulting in major suppliers then subsequently proposing their own Plan/s due to the reduced return under Plan A.

Effectively, Directors with assistance of an independent, skilled and experienced SBRP are empowered to put a commercial compromise to creditors for consideration to enable the business to continue with the reduced costs (compared to the Voluntary Administration process) enabling further funds to be available for creditors.

If the safeguards are implemented to protect the interest of creditors and the sanctity of the process and the unclear aspects above resolved, then this process may achieve the Governments aim, to enable more businesses to survive the impact of 2020 and continue into the future.

There is more to come on this change as issues are clarified over the next 3 months before the new regime is implemented from 2021 onwards. We will provide further updates as it develops. 

See the Federal Government’s media release for more information.

There is a significant risk if you are an officer and you don’t personally exercise the required due diligence to ensure your business complies with the health and safety laws.

Am I an officer?

Under WHS laws, you are included in the definition of an officer if you are:

1. One of its directors and/or its secretary,
2. A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business,
3. A person who can significantly affect the business’ financial standing,
4. A person in accordance with whose instructions or wishes the directors of the business are accustomed to act.

The second category (a person who makes, or participates in making, decisions that affect the whole, or a substantial part of the business) can include senior managers and other persons who contribute to the decision-making of your business.

Whether senior managers are officers will depend upon the nature and extent of their decision-making input, authority and responsibilities.

What do I have to do?

If you are an officer you must personally ensure that your business complies with its duties under the Act.

You must take reasonable steps to:

(a) Acquire and keep an up-to-date knowledge of work health and safety matters generally,

(b) Understand the nature of the business’ operations and generally of the hazards and risks associated with them,

(c) Ensure that the business has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of its business or undertaking,

(d) Ensure that the business has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding to it in a timely way,

(e) Ensure that the business has, and implements, processes for complying with its duties under the Act, and

(f) Verify the provision and use of the resources and processes referred to in paragraphs (c)–(e).

This obligation to exercise due diligence is a personal responsibility and can’t be transferred to anyone else.

It requires officers to take proactive steps to make sure that the business has appropriate systems and procedures in place to comply with the WHS legislation. Officers must also check that those procedures are working properly in the business, for example, one way of meeting (a) is to keep informed of WHS developments via the FIA and (better still), to get involved in the newly formed Formwork Industry Association committees.

What can happen if I don’t do what is required?

Safety regulators such as SafeWork NSW can investigate whether you, as an officer, have exercised the required due diligence, and commence a criminal prosecution against you if you have not.

A successful prosecution results in a criminal conviction and penalties that could potentially include fines and, in the worst cases, terms of imprisonment.

What about industrial manslaughter?

Some Australian jurisdictions (such as Queensland and Victoria) have introduced industrial manslaughter provisions into their workplace health and safety Acts.

Industrial manslaughter laws are expected to commence in WA next year.

Each jurisdiction’s industrial manslaughter laws are slightly different.

In Victoria, a person (including an officer) can be found guilty of industrial manslaughter if:

(i) They are not an employee or volunteer,

(ii) They owed the victim a specific duty under the Victorian Occupational Health and Safety Act 2004,

(iii) They negligently breached that duty,

(iv) The breach of the duty caused the death of the victim, and

(v) They acted consciously and voluntarily when breaching the duty that they owed.

The maximum penalty in Victoria for industrial manslaughter by an individual is 25 years’ imprisonment.

The Queensland industrial manslaughter provisions apply to “senior officers,” who are executive officers of a PCBU, that is, people who are concerned with, or take part in, the PCBU’s management.

A Queensland senior officer can be found guilty of industrial manslaughter if:

(vi) A worker dies, or is injured and later dies, in the course of carrying out work for the PCBU,

(vii) The senior officer’s conduct causes the worker’s death (meaning that the action or inaction of the senior officer substantially contributes to the death, and

(viii) The senior officer is negligent about causing the death of the worker, i.e., their action or inaction far departs from the standard of care required of them.

The maximum gaol term that can be imposed on a senior officer for industrial manslaughter in Queensland is 20 years’ imprisonment.

Things to remember …

• As an officer, you must proactively think about whether your business has appropriate systems and procedures in place to address the risks that its workplaces and systems pose to workers.
• The workplace health and safety laws in all Australian jurisdictions provide for fines and terms of imprisonment. Some jurisdictions have specific industrial manslaughter laws.
• General criminal laws, for example, manslaughter laws, can apply to workplace incidents (although there are specific rules around double jeopardy).
• There are other penalties that can be imposed on you and/or your company for breaching the workplace health and safety laws, such as adverse publicity orders and requirements to undertake safety projects and/or safety training courses.

What should I do?

There are things you should do to help you comply with the workplace health and safety laws, such as:

• Check whether your safety management system is appropriate to address the risks of your operations, and regularly monitor how your system is performing,
• Make improvements to your safety system when they are needed,
• You might want to have your safety management system accredited to the Australian and/or International Standards,
• Provide your leaders with specific training to help them understand and discharge their safety responsibilities, making sure to give them an understanding of how your safety management system allows them to meet their personal responsibilities as leaders and workers,
• Subscribe to industry and safety-related publications to keep you up-to-date on safety trends, issues and ways to comply with the safety legislation,
• Consult the FIA’s resources to see what information is out there to help you discharge your personal obligations and improve your businesses’ safety culture and performance.

Do call us if you would like some legal advice about your personal or business compliance.

John Makris
Partner
Kingston Reid
+61 2 9169 8407

Erica Elliott
Special Counsel
Kingston Reid
+61 2 9169 8409

COVID-19 AND FBT: Updated ATO advice from FIA finance and business advisory partners HLB Mann Judd.

The ATO has updated its COVID-19 and fringe benefits tax (FBT) advice, providing a useful outline of some issues that may arise due to an employer’s response to COVID-19.

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Even through these challenging times, dropped objects still rank in the top three globally for deaths and injuries to workers. Now more than ever, there is a need for intuitive solutions that work with the user to provide safety and purpose.

Over the last few months, FIA Partner Gripps have been exhaustively testing and refining some new products that we think you're going to love. Working alongside partners in the Crane Industry, they've also put together an encompassing kit that ticks all the boxes.

See Them In Action

Our growing library of product demonstration videos shows the how, why & where of the GRIPPS range.

Check out the videos

KEY WORK HEALTH & SAFETY STATISTICS 2019

A report into the latest statistics and Dropped Object trends released by Safe Work Australia.

The resources have been published on the National Safe Work Month website(link is external), and include:

Safe Work Australia encouraged employers, small businesses, duty holders and work health and safety representatives to download the resources and distribute them within their workplaces.

Supporting the overarching national safe work month theme – Work Health and Safety through COVID-19, Safe Work Australia said each week of October will focus on a WHS topic, including mental health and using data to create better WHS policy.

Each topic has a downloadable poster and social media tiles so organisations can promote them in their workplace and to their networks.

This article is provided by the Australian Institute of Health & Safety.

Regulators around Australia have launched a range of initiatives in response to Safe Work Month which is held in October each year.

Safe Work Month encourages employers and workers to promote positive work health and safety in the workplace, and the theme for this year is “staying focused on workplace health and safety”.

While 2020 has involved many challenges, Safe Work Month aims to remind the industry and the community that the health and safety of workers remain a priority, according to The Department of Mines, Industry Regulation and Safety (DMIRS).

In Western Australia, an event will feature a virtual program of activities(link is external) with on-demand video presentations from dangerous good safety, mines safety and WorkSafe.

There will also be live-stream question and answer sessions from industry experts.

Safety and health representatives, managers, supervisors, safety professionals and workers in all industry sectors are encouraged to register.

In Victoria, helping employers and workers navigate through coronavirus (COVID-19) will be the focus of WorkSafe Victoria’s first fully virtual health and safety month(link is external).

Through October, the regulator will offer 16 free online seminars to help employers and workers maintain safe, healthy and connected workplaces during the pandemic and beyond.

Some sessions in the navigating through COVID-19 program are designed to address pandemic related safety issues in specific industries, while others will cover broader topics such as leadership, working from home and looking after injured workers.

Mental health will be a major focus, with a panel presentation on how organisations across different industries are promoting wellbeing through the pandemic.

There will also be online events aimed at young workers, while multicultural community leaders have been invited to a special presentation about everyone’s rights and responsibilities at work.

WorkSafe Victoria chief executive Colin Radford said this year’s program was designed to respond to immediate needs.

“This year, Victorian workers and businesses are facing a unique and acute set of challenges,” said Radford.

“These sessions are a valuable opportunity for people to get their questions answered and hear from the experts on a range of COVID-19 related issues.

“I encourage everyone who is connected with a workplace to have a look at the website and register for a session that will help them manage the risks of COVID-19.”

This article is provided by the Australian Institute of Health & Safety.

Construction sites across NSW will be subject to a new scaffolding safety blitz after a recent round of inspections saw more than 800 notices issued for significant safety breaches.

NSW Minister for Better Regulation, Kevin Anderson has called upon the industry to improve its standards or risk heavy fines after SafeWork’s inspectors found missing scaffold parts, unlicensed workers, and substandard safety measures for those working from heights.

“This is no joke – this year alone three people have died and 25 have been seriously injured due to falling from a height,” Minister Anderson said.

“Over the first three-month blitz SafeWork inspectors issued 26 penalty notices, 232 prohibition notices and 580 improvement notices, 500 of which were for risks associated with falling from heights.

“We will not tolerate poor safety and workers lives being placed at risk on our worksites … The sites we’ve identified can expect another visit very soon.”

Minister Anderson said the notices were only the first step in the process, and under the recently amended Work Health and Safety Act 2011, non-compliant businesses could face heavy fines or up to five years jail-time.

“NSW is proud to be leading the way with the strongest work health and safety legislation in the country, and we will not hesitate to prosecute anyone who disregards the safety of others,” Minister Anderson said.

“Everyone should feel safe doing their job. If you spot anything risky, play your part in protecting your own safety as well as that of your workmates by immediately reporting it to SafeWork via the Speak Up app.”

This article is a news item provided by the Australian Institute of Health & Safety.