New NSW Bill Proposes to Make Several Temporary COVID-19 Measures Permanent

Friday 4 March 2022 @ 1.45 p.m. | Legal Research

On 15 February 2022, the COVID-19 and Other Legislation Amendment (Regulatory Reforms) Bill 2022 (NSW) (“the Bill") was introduced to the Legislative Assembly by the Treasurer of New South Wales, Matt Kean (“the Treasurer”).

The Bill proposes to permanently implement several regulatory measures that were temporarily introduced in response to the COVID-19 pandemic. The Bill seeks to amend 18 other Acts and Regulations, being the:

  • Associations Incorporation Act 2009 (NSW);
  • Biodiversity Conservation Act 2016 (NSW);
  • Community Land Management Act 2021 (NSW);
  • Constitution Act 1902 (NSW);
  • Constitution (COVID-19 Emergency Measures) Regulation 2020 (NSW);
  • Contract Cleaning Industry (Portable Long Service Leave Scheme) Act 2010 (NSW)
  • Crown Land Management Act 2016 (NSW);
  • Environment Planning and Assessment Act 1979 (NSW);
  • Fisheries Management Act 1994 (NSW);
  • Interpretation Act 1987 (NSW);
  • Long Service Leave Act 1955 (NSW);
  • Mental Health Act 2007 (NSW);
  • Mining Act 1992 (NSW);
  • Protection of the Environment Operations Act 1997 (NSW);
  • Retail Leases Act 1994 (NSW);
  • Retirement Villages Act 1999 (NSW);
  • Strata Schemes Management Act 2015 (NSW); and
  • Water Management Act 2000 (NSW).

Proposed Changes to Long Service Leave

Notably, the Bill proposes to amend the Long Service Leave Act 1955 (NSW) so as to:

  • enable a worker to take long service leave in multiple periods of not less than 1 day, where there is an agreement with the employer;
  • enable an employer to give a worker less than 1 month’s notice of the date from which the worker’s long service leave is proposed to be given and taken, if the worker agrees to the shorter period of notice; and
  • clarify the records that an employer must keep in relation to long service leave.

Felicity Wilson, on behalf of the Treasurer, delivered the second reading speech, explaining that:

“These amendments will have significant economic benefits, estimated at around $1.9 billion over 10 years. These benefits will largely accrue to employees from the value they get from taking their long service leave in the form that most suits their own needs… Benefits will flow to employers from increased productivity and lower absenteeism associated with employees being able to work more flexibly”.

Specifically in respect to contract cleaners, the Bill also proposes to amend the Contract Cleaning Industry (Portable Long Service Leave Scheme) Act 2010 (NSW) by reducing the waiting period for accessing long service leave from 20 weeks to 10 weeks.

Continued Protections for Certain Lessees Under Commercial Leases

The Bill also aims to preserve the temporary protections granted to certain lessees under the Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) ("the 2020 Regulation"). Under the current 2020 Regulation, landlords are limited from taking certain action against tenants impacted by the COVID-19 pandemic during the prescribed period (currently scheduled to end 13 March 2022). Landlords are first required to mediate or renegotiate rent.

The new Bill seeks to amend the Retail Leases Act 1994 (NSW) to extend these protections. The proposed amendments also include a new regulation-making power to provide for matters of a saving or transitional nature, specifically in relation to COVID-19 measures affecting commercial leases.

Electronic Meeting and Voting Measures

In her second reading speech, Wilson highlighted that:

“The pandemic has spurred new ways of living and working and accelerated the uptake of new technologies. This bill will make sensible changes to modernise legislation and will help businesses and individuals to take advantage of these positive changes”.

To that effect, the Bill seeks to amend, amongst other things:

  • the Associations Incorporation Act 2009 (NSW) to allow an association to hold committee meetings and general meetings using audio visual or other technology and to permit voting by postal or electronic ballots;
  • the Community Land Management Act 2021 (NSW) to allow for electronic service of documents and enable associations and association committees to conduct voting by means other than in person; and
  • the Strata Schemes Management Act 2015 (NSW) to allow electronic service of a document on an owner or occupier and enable owners corporations and strata committees to conduct voting by means other than in person.

Proposed Amendments to the Constitution Act 1902 (NSW)

The Bill also seeks to temporarily extend, until at least 26 March 2023, Schedule 8 of the Constitution Act 1902 (NSW), which was enacted as part of temporary COVID-19 measures. Schedule 8 currently enables the regulations to prescribe the ways and forms in which Bills may be presented and assented to by the Governor. This Schedule also prescribes the ways and forms in which meetings of the Executive Council are to be held.

The Bill is still yet to pass the Legislative Council.

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Sources:

COVID-19 and Other Legislation Amendment (Regulatory Reforms) Bill 2022 (NSW) and supporting material available from TimeBase’s LawOne Service

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