VIC storage leasers may be eligible for refund

Companies leasing warehouse facilities in Victoria may be entitled to a refund from their landlords thanks to a recent decision made by the Victorian Supreme Court of Appeal.
Essentially, the Court held that the lease of premises used to provide cold storage and logistics services was a ‘retail lease’ for the purposes of the Retail Leases Act 2003 (Vic), Hunt & Hunt lawyers has shared.
Hunt & Hunt noted that the decision has practical implications for warehouse operators and freight forwarders, making many entitled to repayment of expenses including land tax and repair costs going back six years.
The Retail Leases Act impacts all aspects of the formation, operation and ending of covered leases. In terms of costs for tenants, landlords are not able to pass on land tax liability or legal costs associated with the preparation of leases, and
landlord are responsible for maintaining premises in the same condition as at the beginning of the lease, this includes equipment, appliances and fittings provided on the premises under the lease.
For the case that brought about the decision, IMCC Group (Australia) Pty Ltd v CB Cold Storage Pty Ltd [2017], the Court had to consider whether a lease of premises used to operate cool storage facilities would be classed as a retail lease.
“The landlord argued it was not due largely to the nature of the services provided and the fact that almost all of the tenant’s customers were businesses,” Hunt & Hunt shared. “The Court of Appeal held that the lease was a retail lease and took the following factors into account: any person could purchase the storage services if the appropriate fee was paid; the tenant’s business was open during normal business hours; and the tenants customers were the actual consumers of the storage service.”
The Court was reportedly not concerned that the premises were acquired for a business purpose.
Hunt & Hunt advises that the criteria for ascertaining whether a warehousing and logistics business’ lease is eligible to be classified as retail will include the rental amount, the size of the premises, whether customers can attend the premises, the hours of operation, the services provided and the permitted use of the premises under the lease.
“Every tenant that provides warehousing and logistics services should have their lease reviewed to determine whether it is potentially a retail lease,” Hunt & Hunt noted. “If it is a retail lease under the law, but the tenant has been paying land tax and maintenance and essential safety maintenance costs, there may be a very strong case to demand repayment of those costs from the landlord.”

VTA releases full speaker list for 2017 conference

With just over a week until the Victorian Transport Association’s (VTA) annual State Conference in Lorne, the peak freight industry representative body has revealed the full list of speakers that will address delegates over the two-day event, June 4–6.
New keynote speakers include Simon Thomas, Director – Programme Delivery, Australian Rail Track Corporation (ARTC); Jonathan Dexter, Australia National Sales Manager, Viva Energy; Max Kruse, Chief Operating Officer, DP World Australia, Ian Matthews, Regional Operations Manager, WorkSafe Victoria; and CMV-Volvo Product Manager Thiago Leal.
These addresses will be supplemented by panel presentations and discussions from a mix of equipment manufacturers and suppliers, insurance and finance providers, human resources, and superannuation and legal experts.
“Productivity impediments remain the number-one barrier to transport operators being more successful, which is why we’ve built the program around a group of expert presenters and topics that can help delegates improve their operation’s KPIs across the board,” said Peter Anderson, CEO, VTA.
“The program reveals an interesting mix of keynote addresses and presentations from politicians, regulators and industry leaders, supported by several panellists that will share insights and learnings on key productivity drivers of technology, safety, people, customers and equipment during a number of interactive discussions.

Workers exposed to cancer-causing agents deserve compensation

Unlike workplace accidents, where injuries can be relatively quickly assessed and compensation awarded, it can take years or many decades before work-related cancers are diagnosed.

There is no doubt some exposures in the past have left workers with a cancer diagnosis that would not have otherwise occurred. Sometimes that happened before the link between the exposure and cancer was clearly understood, such as the early asbestos miners.

Since modern occupational health and safety legislation came into play in Australia in the 1970s and early 80s, exposures have included people working in the sun and people working in smokey bars and clubs.

To count the recent cost of cancer at work, we gathered data from Safework Australia spanning the 12 years to 2012. Our report, released today, shows 4,745 Aussies received a compensation payout for a cancer that was, at least in part, caused by an occupational exposure. This totalled A$360 million over the 12 years.

Sun exposure contributing to skin cancer was one of two big-ticket items. More than half (53%) of the claims related to neoplasams (another term for cancer, melanoma and non-melanoma skin cancers) of the skin of one kind or another. People with skin cancers due to outdoor work attracted 15% of the funds paid.

The other was asbestos: about three-quarters of the A$360 million has been paid to people with mesothelioma.

These sound like big numbers until we consider that the best estimates suggest about 5,000 cancer cases each year (about 4,400 of whom are men) occur as a result of some kind of occupational exposure. That means less than 10% of the cancer cases suspected to be linked to work exposures manage to attract compensation.

Why so little compensation?

Some, but not all cancers, have clear causes. Mesothelioma, for instance, is unequivocally linked to asbestos exposure.

Lung cancer can be caused by the individual’s smoking, or in non-smokers, it might be linked to exposures such as second-hand smoke at work, silica, formaldehyde and asbestos (for every mesothelioma case caused by asbestos there are probably two additional lung cancer cases).

However, workers who smoked and had workplace exposure to other cancer-causing agents may not be getting or even seeking compensation.

Some occupational exposures happen outside work too, such as sun exposure. But compensation should be paid if there is some demonstrable “work-related injury” that contributed to the disease.

So the PE teacher – who is also a surf lifesaver and cricketer – can still seek compensation for her squamous cell carcinoma after running school sport for the first 15 years of her career without wearing a hat and sunscreen.

We still have no clear record of how much asbestos is in public and private buildings and homes in Australia.
Nadiia Korol/Shutterstock

There are, of course, the chemical exposures specific to some industries that most people immediately think of when considering this issue. Benzene, formaldehyde and nitrosamines are known carcinogens and can all be found in some Australian workplaces.

Diesel is another important example. A recent study estimated almost 14% of the Australians workforce had significant exposure to diesel exhaust. And almost 2% had high levels in their current jobs.

The truckie spending 50 hours a week or more in the cabin breathing the exhaust from his own rig and the traffic around him is increasing his lung cancer risk. So too is the underground miner using diesel-driven mine equipment, particularly if in a confined space.

Emission-reduction technology will help. But transport workers of the past need to know they carry their previous exposure as a possible contributor to any future lung cancer. They carry that risk to a far greater extent than any routine commuter.

Painters and plumbers exposed to lead, metal workers and electrical workers exposed to cadmium and farmers and gardeners exposed to glyphosate are all examples where products are still in use and personal protective equipment should be used. But it would be better would be to find other substances to serve the same function.

Preventing work-related cancers

When it comes to prevention, we’ve made some steady progress. Asbestos has been banned for decades and we’ve been banging on about SunSmart for more than 30 years. But in both cases we are not out of the woods.

We still have no clear record of how much asbestos is in public and private buildings and homes in Australia. Those working in construction, maintenance, renovation or refit do not have confidence in identifying asbestos. Nor do they have a clear diagram explaining where they might come across it in the work they do.

And there are still too many employers who have staff regularly working outdoors who do not have clear sun protection policies.

For people who are diagnosed with cancers and who have a work history of being exposed to carcinogens, we need a better mechanism to identify the connection and explore proper compensation.

For the current and future generations of workers, we need to keep improving conditions to cut out as much exposure to cancer-causing agents as is humanly possible. Employers should be aware of the specific risks they have in their industry and either find different ways to tackle the task or, if that’s not viable, ensuring the risk is effectively removed or reduced.

Other groups also have important roles to play. Regulators need to keep on top of the best evidence on cancer-causing agents as they unfold. Doctors diagnosing cancer might also brush up on their work history recording skills.

Finally, workers also need to play their part by following health and safety procedures. The best cancer is the one we prevent.

The Conversation

Terry Slevin is Adjunct Professor, School of Psychology and Speech Pathology at Curtin University. He is the Education and Research Director Cancer Council WA and Chair Occupational and Environmental Cancer Committee at Cancer Council Australia.

This article was originally published on The Conversation.
Read the original article.

Unpaid fuel bill leads to coal ship arrest

A coal ship has been arrested near Newcastle in relation to allegations of non-payment of a fuel bill in China.

The Panama ship Jo Jin Maru was awaiting a new load of coal from Waratah Coal Services on Tuesday morning when the crew was served with a Federal Court of Australia writ for US$258,338.66, and the ship placed under arrest.

It is alleged a bill for 408 tonnes of fuel taken from the Chinese port of Jiang Jin in March was unpaid.

The Newcastle Herald reported that the fuel supplier sought payment under a contract subject to US law, and would charge 10 per cent interest per annum, which if left unpaid could lead to sale of the ship.

The writ was delivered by a customs officer appointed by the Federal Court as an Admiralty Marshall, who travelled to the ship in a helicopter which would usually transport the harbour pilot.

Due to the inconvenience of loading schedule disruption, ships are no longer arrested while moored at the wharf, with writs now served on ships before they enter the Port of Newcastle.

Plain packaging does not violate Big Tobacco’s intellectual property rights

The House of Commons has voted in favour of compulsory, standardised and logo-free packaging for cigarettes. If also approved by the House of Lords, the new law will enter into force in England in 2016. This will mean trademarks, graphics and logos will be removed from packs, except for the brand name, which will be displayed in a standard font identical for all brands in the market. Large graphic health-warning images will also dominate on the front. A dark colour such as olive green will permeate the pack.

The aim of the measure – already in force in Australia since December 2012 and approved by Ireland – is to make cigarette boxes unappealing, especially for adolescents, so reducing the prevalence and uptake of smoking in the overriding interest that is public health.

Obviously Big Tobacco strongly opposes this measure. Seen from their perspective, such a legislative move is capable of confusing consumers and is an unacceptable de facto expropriation of their (intellectual) properties, namely their powerful brands, for which they have invested, and are still investing, so much money. In particular, they have claimed that this measure infringes their trademark rights, as it would end up in banning the use of all logos and graphic, fancy and design elements, which are protected by trademark registrations, for which tobacco companies have paid and will keep on paying filing and renewal fees.

Alongside this, the industry has argued that standardised packaging will not be effective in reducing the uptake of smoking, and may even have a “boomerang” effect of increasing smoking uptake – without the possibility of adorning their packs, it is argued, tobacco companies would compete only on prices making tobacco cheaper and more affordable.

Trademark argument unconvincing

Big Tobacco’s arguments are not convincing, and when it comes to trademarks standardised packaging doesn’t encroach on these rights.

First, tobacco manufacturers will still be able to distinguish their products from those of competitors as the measure allows them to display on their packs the brand name, although in a standard font.

Second, trademark registrations do not offer their owners a positive right to actually use the protected sign, but just the negative right to prevent counterfeiters from copying it. Indeed, enterprises and businessmen are able to use brands regardless of trademark registrations: the simple fact of starting a business allows them to use signs and logos in the course of trade. And the fact that trademark registrations do not offer their owners a positive right to use the trademark allows governments to introduce measures, such as standardised packaging, that prohibit or restrict such use on public interest grounds.

Insert trademark here.
Department of Health

That trademark registrations do not offer a right to use the sign also lends weight to the conclusion that plain packaging does not constitute a de facto expropriation of tobacco brands and does not expose the countries which adopt this measure (such as England, Australia and Ireland) to the risk of having to pay damages in compensation to tobacco producers under the European Convention on Human Rights and the EU Charter of Fundamental Rights (which protect, among other fundamental rights, the right to property). Basically, standardised packaging does not amount to any expropriation of any property.

As the Australian High Court eventually held in a domestic litigation concerning plain packaging, a government that introduces this measure is not “acquiring” tobacco brands – it just prohibits their promotional use on packaging on public health grounds.

A parallel could be drawn between cigarettes and cannabis. If countries want to legalise the consumption of cannabis (and there are several governments which have already done so, or are currently discussing this legislative option), they may also want to protect consumers’ health and thus prevent marijuana and hashish manufacturers and distributors from using colourful and eye-catching brands to promote their consumption.

Should we allow cannabis growers and distributors to stop these countries pursuing this legitimate public interest by permitting them to claim a positive right to use trademarks and protect their investments in cannabis-related brands? My answer is no.

The measure seems effective

Finally, contrary to what Big Tobacco claims, standardised packaging seems also effective. Australia, for example, has justified this measure by relying on convincing scientific evidence. Recent figures released by the Australian Bureau of Statistics indeed show that total consumption of tobacco and cigarettes in the first quarter of 2014 in Australia is the lowest ever recorded. The number of young people taking up smoking also appears to have fallen.

In addition, the introduction of this measure has triggered a significant spike in Australian callers to Quitline, the telephone helpline offering treatment for addiction and behaviour change, while the allegations about unintended boomerang effects of standardised packaging seem rather speculative and unsubstantiated.

The conclusion that this measure is lawful and effective is further reinforced by a multilateral treaty adopted under the auspices of the World Health Organisation and introduced in 2005, under the Framework Convention on Tobacco Control (FCTC). This treaty aims to protect “present and future generations from the devastating health, social, environmental and economic consequences of tobacco consumption and exposure to tobacco smoke”. In particular, the Guidelines to the FCTC recommend that states adopt plain packaging to increase the noticeability and effectiveness of health warnings and messages and so eliminate the effects of advertising and promotion on tobacco packs.

Whatever the tobacco companies may argue, it is the public’s health that should come first and foremost.

The Conversation

This article was originally published on The Conversation.
Read the original article.

Captain arrested over Great Barrier Reef charge

A Chinese coal ship captain has been arrested for sailing through the Great Barrier Reef without a pilot.

The ABC reported the captain was arrested by Australian Federal Police on Saturday, and his case will be heard today in Newcastle.

Captain Lu will plead guilty to the charge of being master of a ship without a pilot in the Great Barrier Reef Marine Park, which carries a maximum fine of $85,000.

It was alleged the bulk carrier Chinese Steel Developer sailed through Hydrographers Passage, near Mackay, on New Year’s Day.

In 2010 the Shang Neng 1 was involved in a similar offense, which resulted in the ship running aground and carving a 400,000 square metre scar in the coral beds near Douglas Shoal, as well as leaving a four kilometre-long oil slick.

Since then coral regrowth has been hampered by toxic anti-fouling paint, according to the GBRMPA.

The Shang Neng’s first mate served three month in prison over the incident, while the master was fined $25,000.

Image: Thamesshipsociety

Cat, Komatsu and Volvo charged with collusion

Heavy equipment manufacturers Caterpillar, Komatsu and Volvo have been hit with an anti-trust lawsuit in the US for anticompetitive conspiracy and collusion.

International Construction Products (ICP) filed the suit in late January, alleging the three global major OEM’s conspired to exclude the new player from the market and attack their main distribution channel of online sales.

The suit claims that the defendant companies have charged prices above competitive levels for years because the oligarchal market was protected by high barriers to entry.

ICP stated Cat, Komatsu and Volvo successfully applied economic pressure on IronPlanet, an online machinery market, to discontinue sales of ICP products and breach its contract with the new manufacturer.

The contract between IronPlanet and ICP was key to key to their strategy to sell discounted Chinese equipment direct to the customer at prices up to 40 per cent lower than prices commanded by the other companies.

After the launch of ICP in 2014, Cat Auction Services merged with IronPlanet, and it was alleged this merger was designed to completely shut off the means of entry to market.

Legal representation for ICP suggests the defendants threatened to boycott IronPlanet if they ever dealt with ICP or other new entrants to the market.

ICP allowed customers to use local dealers of their choice to perform warranty work.

The new company has claimed compensation and punitive damages, as well as the winding back of the merger between Cat Auction Services and IronPlanet, and dissolution of exclusivity agreements between the defendants and their dealers.

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Crane designer fined for 2013 accident

In a legal first a West Australian crane designer has been fined $16,000 in relation to a 2013 crane accident at Karara.

Entschmann Engineering owner Wally Entschmann pleaded guilty to breaches of the Mines and Safety Inspection Regulations after a dropped load incident, the West Australian reported.

A design modification which had reduced the thickness and weight of boom support plates an 80 tonne crane resulted in an accident during crane testing to 110 per cent capacity.

A load weighing 85 tonnes was dropped approximately five stories to the ground when the boom folded in half.

Perth Magistrates court heard the design modification rendered the crane unsafe to insufficient capacity per the manufacturer’s specification of 80 tonnes capacity.

Defense lawyer Adam Sharpe said the crane manufacturer and external verifier were also obligated to ensure the safety of the crane, however Entschmann accepted responsibility for the failure.

The company was also charged $5000 in court costs.

DMP director of mines safety Andrew Chaplyn said the safety in design was one of the major areas of concern identified by the department.

“We hope this sends a strong message to designers working across the mining industry, but in particular in Western Australia, that negligent or inferior services will be not be accepted,” he said.

Last week a crane tipped over during testing at the Roy Hill mine, and is currently under investigation by the DMP.

Australian Mining understands the crane operator was instructed by an inspector to override the crane’s computer while lowering the boom for inspection, causing the boom to tip forwards onto the ground.

​Massive changes recommended for 457 visas

Minister for immigration Scott Morrison has flagged changes
to the current 457 visa program which will loosen the existing labour
importation rules, following a new report.

It came in the wake of a swathe of claims that the 457
program was being rorted by some Australian businesses, who underpaid workers
by thousands, or those brought over on the scheme were no longer working with
their sponsor.

The new report, known as Robust New Foundations outlined what it terms improvements to the current program.

The review looked into the levels of non-compliance, the
current framework and whether existing requirements balanced against the needs
of business, the viability of deregulation, and the appropriateness of the current
compliance and sanctions.

The independent review into the program has recommended 22
changes to the program.

“The report identified 22
recommendations that strive to achieve a balance between encouraging
flexibility and productivity with strengthening the integrity of the 457
programme and ensuring that overseas workers do not displace Australians,” according to senator Michaelia Cash.

However the report did call for the abolishment of Labour
Market Testing (LMT), which same have stated as tantamount to removing the need
to local for Australian workers first.

When it came to training Australians, the report stated that
“we found there was strong support for the principle that sponsors should make
a contribution to training Australians in return for being able to sponsor 457
visa holders”.

However it recommended that existing training benchmarks be
abolished and instead of training Australians companies simply pay an annual
contribution of around $400 per 457 visa holder to go towards training
Australian workers.

English language skill requirements will also be loosened,
with Morrison dubbing current regulations as “unnecessarily restrictive”.

The report was welcomed by the AMMA, who said it flagged the
removal of “cumbersome and unnecessary bureaucracy”.

“The resource industry’s use of skilled migration has
declined in recent years, but where we do employ international specialists,
their expertise and skills are often critical to safety, performance and
supporting a large number of aligned Australian jobs,” Steve Knott, AMMA chief
executive, said.

“It is encouraging to have our Immigration Minister publicly acknowledge how
skilled migration supports both economic growth and employment opportunities
for the Australian workforce, after an unfortunate politicisation of the
skilled migration debate under the previous government.”

Regarding LMTs, Knott said “we have seen major resource industry
projects wait up to four years to secure a Labour Agreement to cover a small
number of valuable and necessary international workers. The current negotiating
process is extremely difficult and time-consuming”.

“This has a very real impact on job opportunities for
Australians. Skilled overseas workers have never been used to replace
Australian jobs, rather they complement the skills available here with new
global expertise and support projects delivering great value to Australia’s economy.

“Skilled migrants support short-to-medium term skills
shortages when Australians are unable to fill such roles.”

However the report, and its recommendations, were slammed by
the CFMEU, who called on the government to abolish Labour Marketing Testing the
program, with CFMEU national secretary Michael O’Connor stating “in the
only analysis of its kind in the country, CFMEU-commissioned research found
that Labour Market Testing works”.

“Our analysis of the
first six months of its operation shows that 457 Visa applications were
rejected at twice the rate when employers were required to look local first.

“In the job categories
where it applied, the number of rejections of 457 Visa applications doubled –
giving local qualified applicants a fair go instead.

“Scrapping LMT at a time
of record unemployment would be an unconscionable decision, particularly for
young people facing the worst jobs market in 17 years. In the current climate,
the LMT requirement should be expanded to cover all job categories.”

CFMEU fight for right to call workers scabs

The CFMEU has taken a case to the High Court to be able to
use the term ‘scab’ during industrial action.

The case originally began during the long industrial action
which crippled BMA in 2012.

During strikes at the Norwich Park coal mine former miner Walter
Meacle was accused of abusing non-union worker Trevor Loader during strike
action.

Meacle was accused of yelling “scab c**t” at Loader and
jumping a barrier to give him “the finger” during industrial action.

After investigating the
incident BMA terminated Meacle’s employment, but he and the Construction, Forestry,
Mining, and Energy Union deny the event took place.

In the opening day of the Fair
Work court battle Meacle admitted to “yelling words at vehicles” but
denied specifically targeting Loader.

Meacle told the court Loader
fit his definition of a scab but he could not see a reason why BMA would
specifically dismiss him for strike action when thousands of workers had also
joined him.

Lawyers representing BMA and
Meacle spent three days arguing over whether the accused had done anything wrong.

The CFMEU’s lawyer Warren
Friend denied the allegations against Meacle, saying coarse language, such as
the word scab, was simply part of the picket line and therefore was protected from BMA’s code of conduct.

Similar incidents occurred last
year as well during industrial action at Energy Australia’s Yallourn Power
station, with one employee claiming the word ‘scab’ was spray-painted on his fence.

The use of the word scab has
now gone to the high court, with the CFMEU attempting to define it as protected
language.

Speaking to CFMEU
spokesperson Jackie Wood, she told Australian Mining the High Court case “is
about upholding workers’ rights to freedom of expression and participation in
legitimate and lawful industrial activity”.

“We argue the Fair Work Act allows workers to participate in protected
industrial activity in the pursuit of fair work arrangements without being
sacked for it.

“In this case, the worker in question was taking part in lawful
protected industrial activity, along with many others. We believe he was
targeted for sacking not because he was holding a sign but because he was a
union delegate,” Wood said.

“The word ‘scab’ is of common and historical use in Australian
industrial disputes.”

Wood went on to attack the original decision by BMA owner BHP to sack
Meacle, saying “in this case they have
used the excuse of a ‘code of conduct’ to put a worker out of a job”.

“We mustn’t allow big
corporations to further limit the rights and freedoms of Australian working
people. Allowing this sacking to stand would set a disturbing precedent.”

When BHP was contacted it declined
to comment, stating “as this matter is before the High Court it is not
appropriate for us to comment at this time”.

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