Legal Updates

Productivity Commission releases draft Public Infrastructure report

The Productivity Commission released a draft Public Infrastructure report on 13 March 2014, which examines ways to reduce the high costs of major infrastructure projects, improve infrastructure investment across all levels of government, and reduce barriers to private-sector funding.  The public was invited to send written submissions by 4 April 2014 and participate in public hearings in early April.  A final report will be provided to the Australian Government in late May 2014. More…

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Amendments to model WHS Regulations

The model Work Health and Safety Regulations have been updated to incorporate 63 technical amendments that ‘correct inadvertent errors, clarify policy intent and address workability issues’, according to Safe Work Australia.  The amendments mainly apply to high risk work, diving work, plant, asbestos and major hazard facilities. Safe Work Australia notes that the amendments don’t automatically apply, but must be adopted by the harmonised states and territories through their own law-making processes.  For more information, see this complete list of the key changes, and the revised version of the model Work Health and Safety Regulations. More…

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FWC’s new anti-bullying jurisdiction: past bullying conduct is admissible

The Fair Work Commission (FWC) has handed down its judgment in Kathleen McInnes [2014] FWCFB 1440 (6 March 2014), being the first Full Bench consideration of the new anti-bullying provisions in Part 6-4B of the Fair Work Act 2009 (Cth) (FW Act) which commenced operation on 1 January 2014.  The decision establishes that alleged bullying conduct which occurred prior to 1 January 2014 can be considered by the FWC in an application for orders to stop bullying under Part 6-4B of the FW Act. More…

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Urinalysis challenged as a drug testing method

n the Fair Work Commission (FWC) decision, Endeavour Energy [2014] FWC 198 (15 January 2014), the FWC considered the appropriateness of the use of oral fluids rather than urine to detect recent drug use.  The FWC found that ‘nothing happened since the original decision and subsequent appeal in 2012 to indicate that on-site oral fluid testing devices are unreliable’.  The FWC found that ‘testing should continue to use oral fluid’.  This decision came after the recent decision by the National Association of Testing Authorities (NATA) to no longer offer accreditation to facilities for on-site initial drug testing of oral fluid.  The FWC stated that ‘AS 4760-2006 continues to provide a helpful guide concerning the appropriate procedures to be used when it comes to the collection, storage, handling, and dispatch of oral fluid to the laboratory.  It also provides guidance on how to conduct on-site and laboratory initial testing as well as confirmatory testing procedures.  The current absence of accreditation under Section 3 does not affect the desirability of using the standard as the guide to be used in conducting oral fluid testing’.  The Standard doesn’t specifically require workplace testing to be conducted by an accredited agency. More…

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Playing your cards right with mining controls

(This article was first published in the Singapore Business Times on 3 April 2014)

Indonesia recently implemented a ban on the export of unprocessed minerals and ore, and media has reported the subsequent loss of over 500,000 jobs in the industry. This is the latest chapter in a long standing history of resource nationalism. More…

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Dej-Udom & Associates Business and Legal Update for March 2014: COUNTDOWN 2015 – ASEAN Economic Community

ASEAN Development Bank Report
The Asian Development Bank released The ASEAN Economic Community: A Work in Progress, an analysis of the barriers and impediments in realizing AEC integration by 2015. The authors praise the near dissolution of tariffs in the six biggest ASEAN countries as a success in ASEAN economic integration and claim that 70% of all intra-ASEAN trade is now tariff-free. They also warn of remaining challenges including the removal of non-tariff barriers and border barriers, the adoption of harmonized standards, and narrowing the development divide. The report is free and available at

According banking experts, five ASEAN countries attracted more foreign direct investment (FDI) than China did in 2013. Indonesia, Malaysia, Philippines, Singapore and Thailand received $128.4 billion in (FDI) in 2013 and China’s FDI fell to $117.6 billion. Malaysia’s FDI strengthened by 19%, Indonesia’s by 17%, and Philippines’ by 188% before Typhoon Haiyan and ended with 24% growth overall. More…

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Contracts: Beware the short cut

This article was previously published on

Many subcontracts try to incorporate main contract terms with a simple phrase or two. But such quick fixes can easily come unstuck – what you really need is certainty.

Sometimes taking a short cut leads you up a blind alley. The same is often true if you attempt a contractual short cut. Many subcontracts (often drafted without specialist legal advice) attempt to incorporate main contract terms by various shorthand means. They may provide that a subcontract is “subject to the terms of the main contract”, “deemed to incorporate the terms of the main contract”, or use other words to that effect. Such an approach is widely adopted as a short cut, aimed at the elusive goal of achieving subcontract terms back to back with obligations agreed under the main contract. Given that this type of clause attempts to incorporate a different contractual regime relevant to a separate agreement, it isn’t surprising that such efforts often come unstuck and are less effective than people might assume. More…

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2015 Payment Notice and Final Call Letter: A Mixed Bag for Medicare Advantage and Prescription Drug Plans

On April 7, 2014, the Centers for Medicare & Medicaid Services (“CMS”) released the Announcement of Calendar Year (“CY”) 2015 Medicare Advantage (“MA”) Capitation Rates and Medicare Advantage and Part D Payment Policies (“Announcement”) and Final Call Letter (“Call Letter”).

The Announcement follows and responds to public and stakeholder comments on the February 21, 2014, Advance Notice and Draft Call Letter. Specifically, the Announcement describes the payment and risk adjustment methodology changes that will affect 2015 payments for MA and Part D plans and the Part D and retiree drug program benefit parameters for 2015. The Call Letter outlines policy modifications and other considerations for plan sponsors preparing bids for the 2015 contract year, which are due by June 2, 2014. See the previous Epstein Becker Green Client Alert on the Advance Notice.

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McDonald Hopkins Government Strategies Advisory: This Week in Washington — April 11, 2014

The Paycheck Fairness Act, a bill intended to close the gender pay gap, fell short of the 60 votes needed to advance in the Senate on Wednesday by a vote of 53 to 44.

All Democrats voted for the measure, except for Senate Majority Leader Harry Reid who switched his vote to no for procedural reasons so that he can bring the bill back up. Independent Sen. Angus King of Maine, who caucuses with Democrats, also voted no.

The bill is part of Senate Democrats’ election-year agenda, which includes measures such as a minimum-wage increase. All day Tuesday, which was Equal Pay Day, Democratic candidates and committees highlighted the need for the bill, and President Obama signed two executive actions relating to equal pay.

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Data Privacy Alert: Who enforces data security protections?

In the rapidly evolving world of cybersecurity, one open issue is: Who is enforcing the laws that protect the public in a data breach? A federal court provided some guidance on this important issue when it allowed the Federal Trade Commission (FTC) to pursue a data security breach complaint against Wyndham Hotels (Wyndham).

The alleged data breach

Wyndham uses a “property management system” to, among other things, handle reservations and payment card transactions. The system stores customers’ personal information, including names, addresses, email addresses, telephone numbers, payment card account numbers, expiration dates, and security codes. Between April 2008 and January 2010, hackers accessed Wyndham’s property management system on three separate occasions and gained access to personal information, including credit card information, stored on the system. 

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