Chemical Leasing

Last year's OECD report on Economic Features of Chemical Leasing states

Chemical Leasing (ChL) is a service-oriented business model that aligns the interests of the chemical supplier with those of the chemical user by compensating the service of the chemical rather than the chemical volume sold and used. This creates a strategic partnership between the two parties, in which the common goal is the reduction of chemical consumption, thus achieving enhanced performances, chemical handling and waste management and, therefore, economic and environmental benefits.

Due to the economic and environmental benefits that ChL can achieve, since the early 2000s UNIDO and some European countries, notably, Austria, Germany and Switzerland, have been promoting the business model as a means to achieve sustainability in the chemical industry. This study presents a review of the literature on the economic features of the ChL and of similar business models, focusing on the drivers and barriers and comparing their functioning to traditional contracts.

Advanced chemical legislative frameworks have been and are being established in developed and developing countries with the common objective of providing more information to the public and to further involve the chemical industry in reducing the use of hazardous chemicals. Compliance with chemical policy requires constant innovation at the chemical substance level (search for safer alternatives), at the technical process level (search for more efficient processes and technologies) and at organisational level (search for new business solutions) and an enhanced communication of information through the chemical supply chain. It is therefore a strong driver for the uptake of ChL.

Beside policy, the current characteristics of the chemical market, i.e. increased international competition and declining margins, also constitute a driver for the adoption of business models that help in achieving greater efficiency, in maintaining solid relationships between chemical suppliers and customers and in avoiding price underbidding. Moreover, the increase in the demand for greener consumer products may push large retailers to require higher environmental standards of their suppliers, driving the uptake of innovative business models which demonstrate substantial environmental benefits, such as ChL.

Despite these policies and market drivers and the positive results achieved through the implementation of ChL in different countries, the business model still has a limited penetration. Possible reasons are: strict waste legislation, lack of customer demand, liability risks, fear of losing know-how to the supplier and reluctance of the supplier to take on all the investments. A major external barrier is that prospective ChL users are not completely aware of the life-cycle cost of chemicals.

Another hurdle that could affect the uptake of all business models in which chemical management activities are being outsourced, including ChL, is that, when the chemical management activities are performed by individual staff aside other responsibilities (as it is often the case in small and medium-sized enterprises), the transferability is more problematic and the chemical service provider may not be able to reduce the company direct costs, as the salaries of that staff will have to be paid anyway. On the opposite side of the problem, prospective users may have already invested in in-house capacity for chemical management to ensure compliance to strict environmental and health and safety legislation. Therefore, potential ChL suppliers may find it difficult to improve the chemical management of the users and hence there may be less incentive for such a company to switch to a ChL model. Servicising contracts, such as ChL, can mitigate information asymmetries and transaction costs through the realignment of incentives in the supplier-user relationship. However, these contracts can also lead to new types of transactional hazards, such as bilateral dependence and monopoly. These have been dealt with in ChL with different mitigation strategies, crafted to the peculiarities of the companies involved. On the basis of the identified barriers and of the recommendations provided by different authors, some initiatives are suggested to promote the efficient application of the model, focusing on increasing awareness of ChL and its advantages among stakeholders, offering support in the form of legal advice in drafting contracts and facilitating t

Tort

'Apologies as ‘Canaries’ — Tortious Liability in Negligence and Insurance in the Twenty-First Century' by Prue Vines in Kit Barker, Karen Fairweather and Ross Grantham (eds), Private Law in the 21st Century (Hart, 2017) comments

The relationship between tort liability in negligence and insurance is significant, although for most of the twentieth century insurance was ignored in determining liability, despite the massive rise in insurance. Although the determination of liability in negligence typically ignores the existence of insurance, it is there in the background (sometimes driving tort reform) and, if it fails it can be catastrophic for the defendant. The extent to which insurance should be taken into account in considering liability is controversial; this chapter argues that it should only be permissible where the insurance is compulsory or universal, but that it is vital to consider the socio-legal or external power of insurance in relation to tort law because of its importance for access to justice. Insurance contracts typically regulate the relationship between the insured and tortious liability. In most jurisdictions liability insurance contracts contain a provision which makes the contract void if the insured makes an admission against interest. This is traditionally taken to include an apology, hence the commonly repeated advice not to apologise after an accident. The question of whether an apology is an admission is not necessarily clear in the absence of apology-protective legislation. Cases have decided this differently both across and within jurisdictions, although the better view in Australia and the UK is that an apology is not an admission of liability in negligence. This paper attempts to map out the law on apologies and insurance and argues that what is vital is that the liability regime and the insurance regime have some congruence in terms of access to justice and that the apology may serve as a ‘canary’ in the mine of liability – to show whether there is proper congruence or not.

In the US a Californian jury has awarded damages of US$105 million to a cancer patient in a dispute with celebrity naturopath Robert Oldham Young, author of nonsensical but alas bestselling 'pH Miracle' books such as The pH Miracle: Balance Your Diet, Reclaim Your Health.

Dawn Kali sued Young in San Diego County Superior Court, alleging negligence and fraud. She reportedly claimed he had held himself out as a doctor and counseled her to forgo conventional medical treatment, forgoing chemotherapy and accordingly relying on ' alkaline theories' (ie acidity is the cause of all disease and can be addressed through alkaline injections, a 'miracle' diet and so forth). Young spent time in a state prison in 2014 after conviction for practicing medicine without a license, following an investigation by the state medical board and by the District Attorney. At that time he reportedly stated

“I swear to God, from my mouth to God’s ears, that’s the last thing I would do is practice medicine, The reason why is because number one, I don’t believe in it, and number two, the reason I don’t believe in it is because it’s a treatment protocol to deal with symptoms rather than underlying causes.

In his 2014 trial the prosecutor claimed that Young’s degrees came from a correspondence-based diploma mill, with Young progressing from a bachelor’s degree to award of doctorate in about eight months. In 2016, the Osteopathic Medical Board of California charged Johnson with gross negligence, repeated negligence, and general unprofessional conduct in connection with his treatment of four patients at the pH Miracle Center, with his license being revoked the following year alongside an assessment of US$20,000 for the cost of the board's enforcement action.

I am bleakly amused by Young's reported comment that the award is “totally outrageous”, "appalling” and “It’s one-tenth of a billion”. His theories and treatments - at least one of which apparently involved intravenous injections of baking soda and fluid cocktail at US$500 per infusion - might be junk but he can count.

Grannycams

In September one of my pieces in The Conversation commented that 'Hiding ‘grannycams’ in aged care facilities is legally and ethically murky', a response to self-help by loved ones of seniors - and others - in care facilities. (I use the term care with some caution, given a succession of reports indicating that caring someomes limps a long way behind institutional/personal convenience and revenue generation.

There hasn't been a great clarification through the South Australian Supported Residential Facilities (Aged Care Facilities) Amendment Bill 2018, intended to amend the Amendment of Supported Residential Facilities Act 1992 (SA), raises questions about 'grannycams' - undisclosed or evident video surveillance of residents of aged care facilities.

The Bill provides for a new section 29A—Special conditions for aged care facilities -

(1) Each licence under this Act relating to a supported residential facility that is an aged care facility is subject to a condition requiring the proprietor of the facility to comply with this section. 

(2) The proprietor of a supported residential facility that is an aged care facility must ensure that— 

(a) audio-visual recording equipment that complies with any requirements set out in the regulations for the purposes of this paragraph is installed in the bedroom of each resident of the facility; and 

(b) audio-visual recording equipment that complies with any requirements set out in the regulations for the purposes of this paragraph is installed in each common area of the facility. 

(3) Subject to this section, the proprietor of a supported residential facility that is an aged care facility must ensure that—

(a) in the case of audio-visual recording equipment installed in the bedroom of a resident—  

(i) the audio-visual recording equipment is operating at all times when any person is in the bedroom; and 

(ii) the audio-visual recording equipment is monitored in accordance with any requirements set out in the regulations for the purposes of this paragraph by a  person or body independent of the aged care facility or the proprietor; and 

(iii) the images recorded by the audio-visual equipment are reviewed, in accordance with any requirements set out in the regulations for the purposes of this  paragraph, by a person authorised in writing by the proprietor; and 

(b) in the case of audio-visual recording equipment installed in a common area of the facility—

 (i) the audio-visual recording equipment is operating at all times when any person is in the common area; and 

(ii) the audio-visual recording equipment is monitored in accordance with any requirements set out in the regulations for the purposes of this paragraph by a person or body independent of the aged care facility or the proprietor; and      

(iii) the images recorded by the audio-visual equipment are reviewed, in accordance with any requirements set out in the regulations for the purposes of this paragraph, by a person authorised in writing by the proprietor.  

(4) The requirements under subsection (3)(a) will only be taken to apply to a proprietor of a facility if each resident in the bedroom in which the audio-visual recording equipment is installed consents in writing to the operation of the audio-visual recording equipment, and the monitoring and review of images recorded by the equipment. 

(5) The proprietor of a supported residential facility that is an aged care facility may recover from a resident the actual costs of— 

a) installing and operating audio-visual recording equipment in the bedroom of the resident; and 

(b) monitoring and reviewing images recorded by the audio-visual equipment in accordance with this section, (however, nothing in this section authorises the recovery of costs in relation to the installation, operation, monitoring or review of audio-visual recording equipment installed in a common area of the facility). 

(6) For the purposes of this section, a reference to the consent of a resident will be taken to include a reference to the consent of a person who is authorised under a law of this State, or of the Commonwealth or another State or Territory, to give consent on behalf of the resident. 

(7) In this section— common area, of an aged care facility, means an area to which all residents of the facility or members of the public (or both) have access

Speech

'Is the ‘Hate’ in Hate Speech the ‘Hate’ in Hate Crime? Waldron and Dworkin on Political Legitimacy' by Rebecca Gould in Jurisprudence) comments 

Among the most persuasive arguments against hate speech bans was made by Ronald Dworkin, who warned of the threat to political legitimacy posed by laws that deny those subject to them adequate opportunity for dissent. In his influential defence of hate speech bans, Jeremy Waldron addresses these objections. Dworkin’s concern with political legitimacy is misplaced, he argues, given the provision speech bans make for substituting permissible modes of expression for impermissible ones. I argue that this defence of speech bans misidentifies the “hate” in hate speech with the “hate” in hate crime. In contesting Dworkin, Waldron fails to contend with the necessarily entangled criminalisation of manner and viewpoint entailed in hate speech bans. By failing to grapple with the way in which every linguistic sign is constituted by both manner and viewpoint, Waldron sidesteps the ways in which hate speech bans undermine political legitimacy within liberal democracies.

Support Animals

Don’t Be Distracted by the Peacock Trying to Board an Airplane: Why Emotional Support Animals Are Service Animals and Should Be Regulated in the Same Manner' by Amanda Foster in (2018) 82 Albany Law Review comments 

Although fifty percent of all Americans are diagnosed with a mental illness or disorder at some point in their lifetime, including one in ten women, and mental illnesses are the third most common cause of hospitalization for adults under forty-four, the ADA’s narrow approach to defining service animals only protects a certain group of people with disabilities using a certain type of animal — dogs who perform tasks associated with the person’s disability. This narrow approach does not consider the thousands of people who use emotional support animals to alleviate or mitigate the symptoms associated with their mental health issues. To provide parity, it is necessary to include emotional support animals within that definition. Despite the prevalence of mental illness, there is a societal backlash against emotional support animals who provide companionship, relieve loneliness, and sometimes help with depression, anxiety, and certain phobias, but do not meet the ADA definition of service animal due to their lack of specialized training. The FHA and ACAA have provided protection and accommodations for people using emotional support animals, but that protection is in jeopardy. In response to uncertainty over the definition of emotional support animals, on April 24, 2018, Senator Burr (R-NC) introduced a bill to amend title 49 of the United States Code, which would make changes to the ACAA such as only allowing service animals as defined by the ADA to be uncaged onboard aircraft's, requiring service animal behavior training for air carrier passengers, and creating a criminal penalty for fraudulently claiming that an animal is a service animal used for disability needs. If Senator Burr’s bill is passed and the ACAA is restrained from allowing emotional support animals to be service animals under the ACAA, then people with mental health issues will once again be stigmatized and treated as second class citizens. Emotional support animals are also on trial in the regulatory realm. The DOT is currently seeking comments on ways to improve the ACAA regulation to ensure nondiscriminatory access for individuals with disabilities to use their service animals onboard airlines while attempting to deter “fraudulent use of other animals not qualified as service animals” and prevent use of “animals that are not trained to behave properly in the public.” Clear regulation is needed to ensure that all people with disabilities can use a service animal, including emotional support animals, if that animal will assist him or her with alleviating or mitigating the symptoms associated with his or her disability. Do not let the peacock trying to board the airplane distract from the real issue at hand. Mental health matters and people who experience mental health issues and need emotional support animals in public places, including on mass transit, to participate in society, should not be denied this accommodation based on fear that some people may fraudulently claim that their pets are emotional support animals. If we legitimize the process of bringing an emotional support animal in public, including on mass transit, then we make steps in continuing to take away the stigma of mental health issues. Parity is essential to accomplishing that goal.

Wage Theft

The A fair day’s pay for a fair day’s work? Exposing the true cost of wage theft in Queensland report by the Queensland Parliament's Education, Employment and Small Business Committee comments

A fair day’s pay for a fair day’s work, is an ideal deeply rooted in Australia’s labour history and egalitarian values. To most, it is an indisputable right that a worker is fairly and duly remunerated in accordance with their effort and the law. Yet recent public high-profile cases of significant worker exploitation, federal inquiries, and academic studies have found that wage theft is prevalent and going largely unanswered. 

The task given to the committee was to inquire into the incidence, forms and impacts of wage theft in Queensland. To let Queenslanders tell their story. And, to report on the effectiveness of the current regulatory framework at state and federal level in dealing with wage theft, and recommend options for eradicating the practice into the future. ... 

Overwhelmingly, the committee heard that wage theft is imposing significant costs on Queensland workers, their families, businesses and the economy. Conservative estimates suggest that over 437,000 Queensland workers are not receiving their full wages, and that a resulting five percent loss in income for these individuals would amount to an aggregate $1.22 billion loss annually. In terms of superannuation, the annual loss associated with the underpayment or non-payment of superannuation has been estimated at $1.12 billion. Further, annual reductions in consumer spending in Queensland and in federal tax revenue have respectively been estimated at $100 million and $60 million. Taken together, these losses could amount to almost $2.5 billion stripped from the Queensland economy every year. 

The committee heard that affected workers feel powerless to reclaim their lost wages and entitlements, and have been largely left alone to do so by an under resourced federal regulatory system. We can and must do more.

The Committee's recommendations are -

Recommendation 1 

The Committee recommends the Queensland Government conduct a public education campaign to assist in the fight against wage theft, including outlining information on the findings from this inquiry and the measures the Queensland Government is taking in response, and how and where affected workers can go for help to recover their lost wages. 

Recommendation 2 

The committee recommends the Queensland Government re-establish the tripartite Industrial Relations Education Committee under the auspices of the Office of the Industrial Relations to conduct visits to schools, TAFE and VET providers, and universities. The visits would be conducted on an optin basis and provide information focusing on the rights and responsibilities of both workers and employers. 

Recommendation 3 

The committee recommends the Queensland Government, through the Department of Education, work with the higher education sector in Queensland to ensure international students have access to relevant information and advice on their workplace rights in Australia, including the right to join a union and where to go for further information. 

Recommendation 4 

The committee recommends the Federal Government introduce a national labour hire licensing scheme so the benefits of the Queensland scheme can apply across the country. 

Recommendation 5 

The committee recommends the Queensland Government ensure its current procurement policies allow for appropriate and proportionate action to be taken against companies that have underpaid workers. 

Recommendation 6 

The committee recommends the Federal Government consider measures to improve worker access to representation in the workplace and ensure compliance with industrial instruments, using the model of the Industrial Relations Act 2016 (Qld). 

Recommendation 7 

The committee recommends the Federal Government appoint additional Federal Circuit Court Judges in Queensland, and ensure Queensland retains its proportionate share of Federal Circuit Court judges. 

Recommendation 8 

The committee recommends the Queensland Government review and take actions available to it, to ensure that wage recovery processes for Queensland workers are simple, quick and low-cost. This should include further investigation of the following options: a) establishing a dedicated industrial division within the Queensland Magistrates Court, in line with the example in Victoria b) investigating the inclusion of the Queensland Industrial Relations Commission or Industrial Court as an eligible state court under the Fair Work Act 2009 (Cth) c) reviewing relevant forms and processes to ensure the legal process is simple and user friendly for workers and their representatives d) waiving or reducing current court filing fees for wage theft matters. Inquiry into wage theft in Queensland 

Recommendation 9 

The Committee recommends unpaid superannuation be included as a recoverable entitlement under the Fair Entitlements Guarantee scheme and the Fair Entitlements Guarantee scheme be extended to temporary overseas visa workers who are currently denied access. 

Recommendation 10 

The committee recommends that the Federal Government fund a workplace rights information and support service based in Queensland, as is funded for other Australian jurisdictions and was formerly the case, up until the removal of funding in 2016 by the then Federal Government. 

Recommendation 11 

The committee recommends the Federal Government take immediate steps to appoint additional Fair Work inspectors in Queensland under the Fair Work Act 2009 (Cth). 

Recommendation 12 

The committee recommends the Federal Government establish a full, independent review into the performance, resourcing and culture of the Fair Work Ombudsman to ensure that it can respond to wage theft and support affected workers in an effective and timely fashion. Among other things, the review should consider the findings and recommendations of the Best Practice Review into Workplace Health and Safety Queensland which have driven a cultural shift from education to compliance. 

Recommendation 13 

The committee recommends superannuation be included as an industrial entitlement in the National Employment Standards. 

Recommendation 14 

The committee recommends the Fair Work Commission be given the power to assess the status of an employment contract similar to that available to the Queensland Industrial Relations Commission under the Industrial Relations Act 2016 (Qld), and, further consideration be given to removing the ‘reckless defence’ from the offence of sham contracting under section 357(2) of the Fair Work Act 2009 (Cth) and introducing a new ‘reasonable person’ test for determining whether an employer has engaged in sham contracting. 

Recommendation 15 

The committee recommends the Queensland Government legislate to make wage theft a criminal offence, where the conduct is proven to be deliberate or reckless. The Queensland Government should consider the variety of models and approaches for criminalising wage theft that were presented to the inquiry and consult further with stakeholders in regard to a preferred model. 

Recommendation 16 

The committee recommends an automatic termination date be legislated for remaining Work Choices ‘zombie’ agreements, with consideration given to necessary transitional arrangements and protections to ensure no workers are disadvantaged as a result. 

Recommendation 17 

The committee recommends reform of the Fair Work Act 2009 (Cth) to more adequately accommodate emerging forms of non-traditional employment. This should include consideration of law reform to broaden the definition of worker and provide broader access to the benefits of collective bargaining, minimum standards for pay and conditions, and access to the Fair Work Commission.

Furness Report

The NSW Medical Council has released final report by Gail Furness SC into the Council's processes with respect to Dr Emil Gayed.

The Council states

 In June 2018, the Medical Council requested Ms Gail Furness SC inquire into the actions of the former Medical Board, now the Medical Council, in response to concerns raised about the professional performance of a NSW obstetrician and Gynaecologist, Dr Emil Gayed. 

Ms Furness has now completed her inquiry and has prepared a report which deals with the response of one component of the regulatory system, the former Medical Board, which became the Medical Council of NSW in 2010. 

The report covers the period from 1994 to 2017 when the Council suspended Dr Gayed’s registration. At the same time, the NSW Health Secretary appointed Ms Furness to review the actions of five Local Health Districts at which Dr Gayed was appointed between 1990 and 2016 in respect of their management of him. The time for delivery of that report has now been extended to 31 January 2019. 

The Council acknowledges that the response of health regulators to numerous complaints about Dr Gayed did not prevent his substandard professional performance for several years. Aspects of his management by the Medical Board, and later the Council, were unsatisfactory. 

The Council recognises the importance of prompt, relevant action in response to a finding of unsatisfactory performance by medical practitioners and is committed to improving the effectiveness of its regulatory functions in protecting the public. 

Since it was established in 2010, the Council has made necessary modifications to its performance and monitoring programs. 

Ms Furness’ recommendations are a valuable contribution to the revision of the performance program, currently underway. 

The Medical Council recognises that in discharging its functions, it is ultimately accountable to the public of NSW. The report is therefore released in full in the interests of transparency.

The report is a damning indictment of systemic failures in information sharing, including misunderstanding/misuse of privacy law.