'Women of Waste' Leadership Breakfast

'Women of Waste' Leadership Breakfast was a great success earlier this week! 

Hosted by WMAA (the premier national association for waste) and sponsored by G&B Lawyers. 

A special thanks to the keynote speaker, the Hon Penny Sharpe MLC (shadow minister for the environment). 

Lots of engaged and inspired discussions about the state of the waste industry! 

Left to Right

(Kim Glassborow of G&B Lawyers, Tracy Chalk of Penrith City Council, the Hon Penny Sharpe MLC, Gayle Sloan CEO of WMAA and Garth Lamb National President of WMAA)

The Hon Penny Sharpe (MLC) Shadow Minister for the Environment

G&B Lawyers proudly sponsoring the Women of Waste Leadership Breakfast 2017

G&B Lawyers is delighted to be sponsoring the upcoming Women of Waste Leadership Breakfast event hosted by the Waste Association of Australia (WMAA) on 24 October 2017

This inclusive event is designed to celebrate women who are driving change in industry and in doing so, are breaking down barriers and are creating new career prospects for the next generation. We want to acknowledge the small things that we sometimes overlook that can progress our career, our leadership capabilities and those defining moments! Our very impressive line-up of speakers, will includes The Hon Penny Sharpe MLC, Shadow Minister for Environment, Heritage, Trade, Tourism and Major Events; Sarah Mandelson, Chief Executive Officer at Serendipity Ice Cream; and Tracy Chalk, Waste and Resource Recovery Manager at Penrith City Council. This event is inclusive and open to all and is a great opportunity to hear from three very inspirational women, as well as, meet a diverse range of people and increase your networks.

TIME : 7.15am - 9.00am VENUE : Kirribilli Club 11 Harbourview Cres Lavender Bay NSW COST: WMAA Members $60 (inclusive of GST) Non Members $80 (inclusive of GST) Breakfast included in price RSVP: Thursday 19 October 2017 BOOKING AND PAYMENT IS ESSENTIAL PRIOR TO THE EVENT

Kim Glassborow presenting at the WCRA waste industry 'Mentoring & Support Program' 2017

Kim Glassborow (Partner from G&B Lawyers) will be presenting at the inaugural WCRA waste industry 'Mentoring & Support' program for members next Thursday 31 August 2017 at Dooleys Lidcombe Club. 

The 2017 program, run by WCRA and the NSW Department of Industry, is designed for upskilling the next generation of supervisors and managers within the waste and recycling industry. 

Kim will be presenting on EPA transport and depot licence obligations. 

Due to overwhelming demand, she will be running two sessions of her presentation on 31 August 2017. 

To register, contact WCRA at memberservices@wcra.com.au

Going up in flames! Fires at waste facilities and what you need to know

By Kim Glassborow

Over the past few months, an alarming number of resource recovery and waste management facilities have caught fire causing significant damage to infrastructure, plant and equipment.

There are legal requirements that specify what waste facilities must do to prevent fires as well as what must be done in the event of a fire.

At times of an emergency, it is important you have procedures in place that are effective and can be implemented without delay.  

Planning requirements

Since the 1980s, the NSW Department of Planning has attempted to manage the risk of fire during the planning and design phase of certain developments. To date, the more stringent requirements of undertaking a Fire Safety Study have been limited to “potentially hazardous developments”.

However, there has been an increasing number of fire incidents which have occurred at waste facilities that are not categorised as potentially hazardous, yet do contain large volumes of combustible material. Though not required by the law, the relevant authorities have been pushing for more stringent risk assessments to be undertaken to prevent the risk of fire at all types of industrial facilities. The Fire Safety Study Guidelines (NSW Department of Planning, 2011) recommend that basic fire safety issues should be considered early in the planning and design process for a new development.

Insurance impacts

As a result of the recent fires in NSW and Victoria, insurance brokers Arthur J. Gallagher Insurance Brokers have warned that an increase in insurance premiums for waste management businesses is likely. However, businesses with strong risk mitigation processes in place may experience lower premiums than those that do not. This shows an economic benefit for waste facilities that have procedures including:

·         regular checks and maintenance of fire safety equipment;

·         preparation and display of emergency evacuation plans;

·         fire warden training;

·         maintenance of equipment such as bunding and electricals; and

·         safe storage of flammable material.

EPA’s requirements

Under the Protection of the Environment Operations Act 1997 (NSW) a licence holder is required to prepare a Pollution Incident Response Management Plan (PIRMP) (Section 153A).

Failure to do so may attract a penalty of up to $1 million. This plan must include:

1.       The procedures to be followed in notifying a ‘pollution incident’ to premises in the vicinity and the relevant authority.

2.       A detailed description of the action to be taken to reduce or control the pollution.

Licence holders are required to report pollution incidents causing or threatening material harm to the environment immediately to relevant authorities including the EPA, NSW Health, Fire and Rescue NSW, SafeWork NSW, the local council and premises in the vicinity.

A ‘pollution incident’ is an incident during which there is or is likely to be a leak, spill or other escape or deposit of a substance, as a result of which pollution has occurred, is occurring or is likely to occur. In the event of a fire, the procedures in the PIRMP must be followed.

An increase in the prevalence of fires prompts consent authorities to require applicants for development consents or Environment Protection Licences to provide further information regarding fire safety measures from the outset. There are a multitude of reasons to consider fire risks and safety measures from the start of development process. For established facilities, it is also never too late to upgrade processes and procedures.

Kim Glassborow is a partner at G&B Lawyers specialising in waste management legislation, planning and environmental law. Contact: kglassborow@gandblawyers.com.au

G&B Lawyers Partner - Kim Glassborow presenting at the WCRA Industry Conference (June 2017)

Kim Glassborow presented on Unfair Terms in Waste Management Contracts in June 2017. 

A great turn out with Members of the Waste Contractors & Recyclers Association of NSW (WCRA). 

Kim will be holding a 'round-table' forum for Members of WCRA in the next few weeks. 

Hope to see you there. 

Office: Suite 101, Level 1, 229 Macquarie Street, Sydney, NSW, 2000

Mail: GPO Box 1849, Sydney, NSW 2001

M: 0481 287 528

E: kglassborow@gandblawyers.com.au

W: www.gandblawyers.com.au

Project Development Practice at G&B Lawyers Sydney

Conveyancing

Property disputes

Planning due diligence

Property development

Mediation, conciliation and arbitration

G&B Lawyers
M: 0481 287 528 Kim Glassborow (Partner) | M: 0411 067 367 Nathan Buckley (Partner)
Office: Suite 1, Level 1, 229 Macquarie Street, Sydney, NSW 2001
Mail: GPO Box 1849, Sydney, NSW 2001
www.gandblawyers.com.au
nbuckley@gandblawyers.com.au | kglassborow@gandblawyers.com.au

Timely reminder to all Directors - recent court decision

Case Note

ASIC v Managed Investments Ltd & Ors (No.10) [2017] QSC 96

June 2017

Nathan Buckley | Partner | G&B Lawyers

---

Executive summary

1.    In 2016, the Queensland Supreme Court (QSC) found officers of MFS Investment Management Ltd to have contravened statutory duties in the Corporations Act 2001 (NSW) in that they had misappropriated $147.5 million from Premium Income Fund (PIF) for the purposes of paying other debts owed by the MFS Group. The officers were also found to have falsified and backdated company documents to justify their use of the misappropriated funds.

2.    In 2017, the QSC imposed significant penalties on the officers, including the requirement that they pay $615 million in compensation to PIF, individual penalties up to $650,000 as well as bans from managing corporations from 5 years to permanently.

3.     The significant penalties imposed by the QSC are a reminder to directors and executives to ensure compliance with their statutory duties under the Corporations Act 2001 (Cth) including acting in the best interests of investors at all times.

2016 judgment – Breach of statutory duties

On 23 May 2016, Douglas J delivered his reasons in ASIC v Managed Investments Ltd and Ors (No 9) [2016] QSC 109. This case was related to the 2008 collapse of MFS Group.

MFS Investment Management Ltd (MFSIM) a wholly owned subsidiary of MFS Limited which was a publicly listed holding company of MFS Group. MFSIM was the responsible entity for a managed investment fund holding millions of dollars for investors and known as the “Premium Income Fund” (PIF). Being the responsible entity, MFSIM was required to comply with its duties under the Corporations Act 2001 (Cth). In particular, section 601FC of the Corporations Act 2001 (Cth) sets out the duties of a responsible entity of a registered scheme which includes the requirement to; act honestly, exercise the degree of care and diligence that a reasonable person would exercise if they were in the responsible entity's position, act in the best interests of the members and, if there is a conflict between the members' interests and its own interests, give priority to the members' interests, and ensure that all payments out of the scheme property are made in accordance with the scheme's constitution and this Act.

In May 2016, the Court found that four officers and the funds manager of MFSIM did not act honestly in carrying out their duties in managing PIF. ASIC, which was the plaintiff in the matter alleged the defendants had misappropriated $147.5 million of funds from PIF, created and used false documents in relation to the use of the PIF funds and that the PIF funds were not used for the benefit of the PIF resulting in PIF suffering a loss.  

The defendants were found to have misappropriated the funds to pay debts owed by other entities in the MFS Group. Further, the defendants were found to have falsified and backdated company documents in an attempt to justify the use of the misappropriated funds.

2017 judgment - Penalties imposed

Just over one year after Douglas J passed judgment against the defendants, their penalties are now known. On 26 May 2017, the former officers who oversaw the collapse of MFS Group were ordered to pay an extraordinary $615 million in compensation to the PIF.

In addition to the compensation, the officers were also banned from being company directors for varying lengths of time ranging from 5 to permanently and each received individual financial penalties between $90,000 and $650,000.

As it was put by Douglas J, “[t]his remains a sorry tale of the misuse of other people’s money by those who should have known better”.  The false documents were examples “lending credence to the perception that PIF was a “slush fund” run in the group’s interests rather than the interests of its investors.”

At paragraph 233 of the 2017 judgment, Douglas J found that ASIC’s submissions were justified in that the “periods of disqualification and the pecuniary penalties involved should reflect the complete disregard which these defendants had to their duties under the Corporations Act; (except for Ms Watts) the loss of many millions of dollars to PIF; and (except for Mr King) the defendants’ various roles in the cover up.” Further, “the imposition of substantial periods of disqualification and pecuniary penalties will ultimately have the effect which the statutory scheme seeks: recognition on the part of those controlling responsible entities that they must act with honesty and competence and remember at all times that they are dealing with other people’s money.”

This judgment should act as a reminder to directors and executives to ensure compliance with their statutory duties under the Corporations Act 2001 (Cth). It is imperative that the interests of investor’s are considered at all times and that an entity’s funds are used for the investor’s benefit.

References:

ASIC v Managed Investments Ltd and Ors (No 9)  [2016] QSC 109

ASIC v Managed Investments Ltd and Ors (No 10) [2017] QSC 96

G&B Lawyers

Office: Suite 1, Level 1, 229 Macquarie Street, Sydney, NSW 2000

Mail: GPO Box 1849, Sydney, NSW 2001

M: 0481 287 528 | 0411 067 367

E: info@gandblawyers.com.au

W: www.gandblawyers.com.au

G&B Lawyers Update - Chain of Responsibility

G&B Lawyers Update

In light of recent accidents involving heavy vehicles on our roads, we have prepared this short update to remind all transporters of their Chain of Responsibility duties.

Chain of Responsibility (CoR) means that every person who has control in the transport supply chain has a responsibility to ensure the safe and legal transport of goods on roads.

The CoR includes:

• Employer of vehicle’s driver (if driver is employed);
• Prime contractor for vehicle’s driver (if driver is self-employed);
• Operator of the vehicle;
• Schedulers for the vehicle;
• Loading manager for any goods in the vehicle;
• Commercial consignor of any goods for transport by the vehicle that are in the vehicle; and
• A consignee of any goods in the vehicle.

Motorcyclist fatality at Homebush West

Earlier this month, a motorcyclist died when her vehicle collided with a truck. The day after the accident, police, the Environment Protection Authority and Roads and Maritime Services inspected the fleet of trucks of the company whose truck was involved in the crash. Police issued defect notices for a number of trucks for worn tyres, defective brakes and worn suspension. Officers issued three infringements to the owner for permitting defective trucks to be driven.

Legal requirements

The Heavy Vehicle National Law provides that:

• A person must not use, or permit to be used, on a road a heavy vehicle that contravenes a heavy vehicle standard applying to the vehicle; and
• A person must not use, or permit to be used, on a road a heavy vehicle that is unsafe.

Heavy vehicles need to comply with standards prescribed by legislation and any other practices that ensure that the vehicle is safe for operation on the road.

How do I protect myself, my employees and my organisation?

We recommend that owners and operators of trucks, contractors for self-employed drivers, schedulers for vehicles and any other party listed in the above CoR, have procedures in place to check and inspect heavy vehicles to ensure they comply with relevant standards and best practice to ensure vehicles are safe to operate.

The Heavy Vehicle Inspection Checklist and the Heavy Trailer Inspection Checklist may be used as guides.

For any questions on your responsibilities as part of the CoR, please contact us.

G&B Lawyers

Office: Suite 1, Level 1, 229 Macquarie Street, Sydney, NSW 2000

Mail: GPO Box 1849, Sydney, NSW 2001

M: 0481 287 528 | 0411 067 367

E: info@gandblawyers.com.au

W: www.gandblawyers.com.au

Introducing G&B Lawyers

Resource Recovery orders and exemptions - how do they work?

Under the Protection of the Environment Operations Act 1997 (NSW) the Environment Protection Authority (EPA) has the power to grant exemptions from some requirements to hold an Environment Protection Licence (EPL) or to pay the waste levy, where it can be demonstrated that a specific type of waste can safely be used for another purpose. However, the exemptions are subject to strict conditions.

Currently, there are two separate types of documents that set out the strict conditions required to be met before specific types of waste can be used for a particular purpose. These are called resource recovery orders and resource recovery exemptions which are made under clauses 91 to 93 of the Protection of the Environment Operations (Waste) Regulation 2014 (NSW).

Resource recovery orders outline conditions that must be met by generators and processors of waste in order to lawfully supply recycled waste for the purposes of land application, use of the waste as fuel or in connection with a process of thermal treatment.  Resource recovery exemptions set out the conditions that must be met by consumers and receivers of recycled waste who wish to apply this waste to land, or use the waste as fuel or in connection with a process of thermal treatment.

If the consumer/receiver abides by the conditions in the exemption, they will be exempt from specific requirements set out in the exemption, such as holding an EPL, levy liability, waste transport certificates, or annual reporting. However, it is important to note that the resource recovery orders and exemptions do not remove the requirement to comply with planning consent requirements.

Example of the application of the Recovered Aggregate Order & Recovered Aggregate Exemption 2014

The recovered aggregate order and exemption applies to the production and supply of recovered aggregate for application to land as a road making material, or in building, landscaping or construction works. Recovered aggregate means material comprising of concrete, brick, ceramics, natural rock and asphalt processed into an engineered material. This does not include refractory bricks or associated refractory materials, or asphalt that contains coal tar.

The Recovered Aggregate Order 2014 (“Order”)

The Order applies to any person who supplies recovered aggregate that has been generated, processed or recovered by the person.

Part 4 of the Order lists the processor requirements which include, but are not limited to:

-       Preparing a sampling plan and undertaking specific sampling and testing;

-       That the recovered aggregate is not to be supplied to any person if particular chemical concentrations exceed the maximum amount listed;

-       Ensuring that testing of samples is undertaken by National Association of Testing Authorities (NATA) (or equivalent) approved laboratories; and

-       Providing a written statement of compliance as well as copies of the Order and Exemption to the consumer.

The Recovered Aggregate Exemption 2014 (“Exemption”)

The Exemption applies to any person who applies or intends to apply, recovered aggregate to land.

Part 7 of the Exemption lists the conditions of exemption which include, but are not limited to:

-       Not using the exemption for applications such as the construction of dams, mine site rehabilitation etc.;

-       Keeping a written record of the quantity of recovered aggregate received and the name and address of the supplier;

-       Making any records available to authorised EPA officers on request; and

-       Ensuring that any application of recovered aggregate to land must occur within a reasonable period of time after its receipt.

Proposed changes for managing construction & demolition waste (C&D waste) in NSW

As many would recall, on 21 October 2016, the EPA released a consultation paper on the minimum standards for managing construction and demolition waste in NSW. The consultation paper proposed a number of reforms that will affect the waste industry as a whole if legislated. One of the proposed changes is the removal of the general recovered fines order and exemption which is to be replaced by site-specific recovered fines orders that will be issued by the EPA. This means that if the reforms are legislated, individual facilities will need to apply to the EPA to obtain an order to lawfully recover fines.

Between 21 October 2016 and 17 November 2016 the consultation paper was open to the public for consultation. The next step in the process is for the EPA to prepare a consultation report to address the issues raised during the consultation. No updates have been provided to the public to date. When the consultation paper was released, it was indicated that the proposed changes would be implemented on 1 March 2017. Given the impending deadline and the radio silence to the public from the EPA on this matter, not to mention the ministerial change, it is highly unlikely that this deadline will be met.

This means that the current regime of resource recovery orders and exemptions that apply to fines will remain in force. The current resource recovery orders and exemptions are available at: http://www.epa.nsw.gov.au/wasteregulation/orders-exemptions.htm. Where no resource recovery order or exemption exists for the intended use of a waste material, an application can be made to the EPA.

G&B Lawyers

Office: Suite 1, Level 1, 229 Macquarie Street, Sydney, NSW 2000

Mail: GPO Box 1849, Sydney, NSW 2001

M: 0481 287 528 | 0411 067 367

E: info@gandblawyers.com.au

W: www.gandblawyers.com.au