27 January Changes to the Fair Work Act may benefit the energy and resources sector January 27, 2021 By Sally Parker General, Resources and Energy FairWorkAct, Energy, Resources 0 The energy and resources sector is a significant contributor to the economy, and its impact is estimated to continue to grow over the next decade. The Australian Resources and Energy Group (AMMA) estimates that the sector will add over 24,000 new workers by 2026 to support 98 new and expansion projects worth over $83 billion. The roles available could double depending not the construction and flow-on work required. Western Australia and Queensland are expected to benefit the most from these initiatives. To enable investment like this to continue and encourage job growth, the Federal Government introduced amendments to the Fair Work Act 2009 (Cth) (the Fair Work Act) in December. One of the key amendments proposed in the Bill that may impact the industry relates to greenfield agreements for major projects. A major project is defined as one where the costs of the project are at least $500 million, or one of between $250 million and $500 million that is declared a major project by the Minister. Under the Bill, the Fair Work Commission (FWC) can approve long-term greenfields agreements for the construction of a major project that includes a nominal expiry date up to eight years after the day the agreement comes into operation. If the nominal expiry date is more than four years after the FWC approves the agreement, then the agreement must provide for annual pay increases for the nominal life of the agreement. This change gives industry greater certainty about wage rises and removes the risk of protected industrial action when planning major projects into the future. In the past, there was a risk that employment terms may change during critical phases of long-term projects as enterprise agreements nominally expired. The proposed amendments to the Fair Work Act also includes changes to: ● Casual employees: This seeks to codify specific criteria so that it’s clearer whether an employee is casual. This is based on whether at the time the employer makes an offer of employment there is no firm advance commitment to continuing and indefinite work according to an agreed pattern of work. The Bill also seeks to address double dipping where an employee has been misclassified as casual and a process to cover from casual to permanent employment. ● Enterprise agreements: Provisions are proposed to make it easier and quicker for enterprise agreements to be agreed and approved. This includes limiting how the FWC should apply the Better Off Overall Test. Under the amendments the FWC will only be able to consider patterns of work that are reasonably foreseeable, must rely on submissions and publicly available information and must place significant weight on the views of both employers and employees that the Better Off Overall Test has been met. In addition, the FWC can approve an agreement that doesn’t meet the Best Off Overall Test if in the public interest but the circumstances do not have to be exceptional. This is a change from the existing public interest exception. These provisions would only apply for the next two years. ● Compliance and enforcement: New criminal offences are proposed for dishonest and systematic underpayment of wages. The civil penalties and orders that can be imposed for non-compliance will also be expanded. The Bill will be referred to the Senate Education and Employment Legislation Committee who is expected to release its report in March 2021. It is expected to be the subject of significant debate before it becomes law. Related Articles COMMUNITY LEGAL RIGHTS IN MINE CLOSURE PLANNING; A COMPARATIVE ANALYSIS OF THREE AUSTRALIAN STATES Professor Alex Gardner, University of Western Australia Law School, and Laura Hamblin, formerly research associate at the UWA Law School, 2021 Why does the Mining Act 1978 (WA) not provide secure legal rights for community consultation in relation to mining lease proposals and mine closure plans? Addressing this question presents an important theme for this comparative review of some core features of the regulatory frameworks for mine closure in three Australian States. It also raises important questions for future legal research. Western Australia, Queensland and Victoria have prominent but vastly different, and thus uniquely significant, mining industries. Western Australia’s mining industry has a long history of large and smaller scale mining of a diverse range of minerals by various methods that pose significant mine rehabilitation challenges.[i] Queensland’s mining industry is similarly large and diverse, dominated by export coal production, and planning future minerals development in a decarbonising world.[ii] Victoria has a smaller mining industry with a large historical legacy dominated by a coal mining industry for domestic electricity generation in the Latrobe Valley, which is closing as the State actively transitions to renewable power sources.[iii] These States also have significant differences in the regulation of their mining industries. What all three States do have in common is the significance of their mining industries to both the State economy and the communities who depend on or live near mining operations. Importantly, all three States are confronting large legal and regulatory challenges in managing mine rehabilitation and closure. The key to addressing these challenges is effective mine closure planning: the closure of a mine site has ripple effects that are not merely environmental and economic, but social and cultural too. The initial approval of a mine closure plan occurs before any mining has begun and, with the life cycle of a mine often spanning decades, regulatory bodies are approving hypothetical closure scenarios, potentially subject to vast changes. Regulatory bodies may then seek to enforce closure requirements enshrined in a plan that may wane in relevance as mining operations progress, the updating of which may depend on the miner. Yet remedying the regulatory system so that it creates adaptable but consistently effective mine closure outcomes for affected communities still begins at planning. Although that planning is an iterative process across the life of the mine, it is very important at the initial stage of approval. Recent legislative reforms in all three States are adding to the regulatory rigour and adaptability of mine closure planning, though there are very different legal requirements for community consultation. This article aims to explain and assess the regulatory reforms by undertaking a comparative analysis of mine closure planning across Western Australia, Queensland and Victoria, with a focus on the initial approval stage and how stakeholders and communities are brought into that process. The facilitation of continuous and comprehensive community engagement is critical to ensuring that mine closure planning accounts for environmental, economic, social, cultural and safety outcomes after mine closure, but it has not been possible to consider here the process of ongoing mine closure planning, especially for amending mine closure plans and determining satisfaction of mine closure plans leading to resource tenure relinquishment.[iv] The article begins by considering core concepts of mine closure planning and the regulatory goals that inform it. It then provides a comparative overview of each State’s mine closure planning requirements under the mineral resources, environmental and land use planning laws and draws out some of the different regulatory structures and processes for mine closure within each State. The third step in our analysis compares the ways in which those laws provide for local communities’ participation in mine closure planning, with specific attention to whether the regulatory provisions create legally enforceable rights for effective community engagement. The article concludes with a summary of the key points from the discussion of three themes in our analysis: (i) the importance of clear definitions of core concepts and key goals, (ii) mine closure planning as an essential part of a mining proposal, and (iii) the legal definition of community engagement and consultation rights. Mine closure planning and implementation is necessarily influenced by many other spheres of law including taxation law, investment law, water law, and the rights of traditional owners, to name a few. A potentially directly relevant Commonwealth law is the Environment Protection and Biodiversity Conservation Act 1999 (Cth), which may require environmental impact assessment of a mining proposal and closure plan and lead to approval conditions supplementing State requirements.[v] Whilst acknowledging the importance of these adjacent spheres of the regulatory frameworks for effective mine closure planning, this article does not attempt to address their impact. In particular, the rights of Traditional Custodians are a crucial part of mine closure planning that are only briefly noted here and that would benefit from future research. WA Department of Mines, Industry Regulation and Safety, Major Commodities Review 2022-23”. Qld Government, Department of Resources, Queensland Resources Industry Development Plan, June 022. Vic Government, Department of Jobs, Precincts and Regions, Latrobe Valley Regional Rehabilitation Strategy. See L Hamblin, A Gardner, Y Haigh, Mapping the Regulatory Framework of Mine Closure, May 2022, CRC TiME, for a broader exploration of the full life cycle of mine closure regulation. In Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities  FCAFC 111; (2013) 214 FCR 301, , -, referring to the range of approval conditions, which included mine closure. In setting conditions under the EPBC Act, the Commonwealth Minister must consider any relevant conditions under State or Territory law: at  citing Lansen v Minister for Environment and Heritage (2008) 174 FCR 14. The states boost the energy and resources sector This year will be remembered for the many challenges that it brought to both individuals and industry. As Australia starts to return to some normality, many states are looking to boost industry, increase jobs and innovate for the future. In this article, we look at various state initiatives designed to boost the energy and resources sector. Submission - DISER Consultation Paper December 2020 ‘Enhancing Australia’s decommissioning framework for offshore oil and gas activities’ How foreign investment changes may impact the mining and energy sector In early June 2020, the government announced a review of the foreign investment rules, expanding them to apply to all foreign investors in anything deemed a ‘sensitive national security business’. The changes are scheduled to come into effect on 1 January 2021. There are concerns that this will impact foreign investment in the mining and energy sectors, and in particular the critical minerals space. FORREST AND FORREST PTY LTD AND MINISTER FOR ABORIGINAL AFFAIRS  WASAT 28 Western Australia’s State Administrative Tribunal (SAT) has rejected a review, by Forrest & Forrest Pty Ltd, against the refusal of consent to impact an Aboriginal site in constructing weirs across the Ashburton River. A unanimous three-member panel published its decision in April 2023. SAT’s decision and reasoning has direct significance and use for anyone involved in processes for a s 18 consent under the Aboriginal Heritage Act 1972 and broader relevance for the law around protection of Aboriginal heritage in Western Australia. With the WA Government announcing the reversal of recent statutory changes and a return to the 1972 legislation, SAT’s decision has increased relevance. What the FIRB? An update on Australia’s foreign investment rules for energy and resources Showing 0 Comment Comments are closed.