In the media
Crust pizza franchisee allegedly discriminated against
migrant workers
The Fair Work Ombudsman has commenced legal action
against the operators of a Crust Gourmet Pizza franchise outlet in
Hobart, alleging they discriminated against four overseas workers
by paying them much less than Australian employees (23 October
2018).
More...
A fairer system for considering criminal records in
employment decisions
The Government will amend the Australian Human Rights
Commission Regulations 1989 to clarify that whilst employers can
discriminate on the basis of a 'relevant criminal record',
they won't be able to discriminate if the conviction is
'irrelevant' to the role being applied for (19 October
2018).
More...
LCA welcomes new entitlements proposed under the Family
and Domestic Violence Leave Bill
Law Council representatives welcomed the new entitlement
in the National Employment Standards proposed under the Bill, being
five days of unpaid family and domestic violence leave, as a
critical step in the right direction (17 October 2018).
More...
Unions furious about Government's decision to join
casual workers court case
Jobs Minister Kelly O'Dwyer joins a court case testing
the definition of casual employment, arguing recent decisions have
caused "anxiety" among small businesses around the
country (18 October 2018).
More...
CFMMEU fined $313,000 and ordered to take out
advertisement for threatening to "smash"
contractors
The Federal Court has ordered the CFMMEU and seven of its
officers to pay penalties totalling $313,000 for their unlawful
conduct against a number of concreting companies at construction
sites in Sydney in 2014 and 2015 (18 October 2018).
More...
ABCC launches legal action against West Australian
ceiling company and its director
The ABCC has commenced proceedings against West Australian
company Big Li Ceiling Pty Ltd and its director Yiting Li alleging
the company failed to produce records and documents of its workers
and subcontractors during a wages and entitlements audit (11
October 2018).
More...
Court imposes $105,000 in penalties for unlawful
industrial action at Perth Children's Hospital
The Federal Court has imposed total penalties of $105,000
against 75 workers after they took part in unlawful industrial
action at the New Children's Hospital project in Perth in 2013
(11 October 2018).
More...
Workplaces under the spotlight in Productivity
Commission inquiry into mental health
Australian businesses will be a focus of an independent
inquiry into mental health that will recommend key priorities for
the Federal Government's long-term mental health strategy (07
October 2018).
More...
Unions demand shake-up of employee bargaining powers
ahead of federal election
ACTU Secretary Sally McManus will outline a plan for
workers to engage in sector or industry bargaining, seizing on
concerns over sluggish wage growth and fuelling debate about
Australia's industrial relations landscape months out from a
federal election (04 October 2018).
More...
Court blocks release of report about bullying in fire
brigades
Victorian Equal Opportunity and Human Rights Commissioner
Kristen Hilton says she is "disappointed" by a court
ruling to block the release of an investigation into bullying,
sexual harassment and discrimination in the state's fire
services (04 October 2018).
More...
Misrepresentation comes at a cost for union
official
The CFMMEU's former South Australian organiser Mark
Gava has been penalised $6,000 and his union $68,000 following Mr
Gava breaching right of entry laws at the Flinders Medical Centre
project in Adelaide in December 2016 (02 October 2018).
More...
Published - reports, articles, speeches
Wage theft in
silence: Why migrant workers do not recover their unpaid wages in
Australia
Bassina Farbenblum, Laurie Berg; Migrant Worker
Justice Initiative: 29 October 2018
This report argues that structural reforms are urgently
required to address the drivers of exploitation. There is also a
pressing need for remedial mechanisms that are accessible to
individual migrant workers.
Trends in union
membership in Australia
Geoff Gilfillan, Chris McGann; Parliamentary Library
(Australia): 15 October 2018
This statistical snapshot outlines the decline in union
membership in Australia over the past forty years using the latest
data available and considers possible reasons for the decline.
FWC Annual report 2017–18
The Fair Work Commission has published its annual report
for the 2017–18 financial year following its tabling in the
Australian Parliament (17 October 2018).
ABCC: Industry update September - October
2018
Industry Update provides updates on the latest activities
of the ABCC, industry trends and emerging issues (09 October
2018).
In practice and courts
ABCC Alert - Rally advice - reporting question
answered
In response to queries, the ABCC provides the following
guidance to code covered entities on their obligations under
section 16 of the Code for the Tendering and Performance of
Building Work 2016. Section 16 of the Code does not require any
action to be taken where an employer has authorised the absence of
their workers (17 October 2018).
More...
ABCC E-Alert: Industrial rallies - know your rights and
responsibilities
The Australian Building and Construction Commission is
reminding all building industry participants ahead of a series of
nation-wide rallies to familiarise themselves with their rights and
responsibilities (17 October 2018).
More...
AHRC Submissions - National Inquiry into Sexual
Harassment in Australian Workplaces
The Commission is interested in hearing from individuals
and organisations about their views and experiences relating to
sexual harassment in Australian workplaces. Submissions are now
open. The closing date for submissions is 31 January 2019.
More...
ABCC Code for the Tendering and Performance of Building
Work 2016
The Code for
the Tendering and Performance of Building Work 2016 applies to
companies who wish to undertake Commonwealth-funded building work.
Building industry participants covered by agreements made prior 2
December 2016 have until 29 November 2018 to ensure their
agreements are Code compliant.
Cases
Construction, Forestry, Maritime, Mining and Energy Union v
Hay Point Services Pty Ltd [2018] FCAFC
182
INDUSTRIAL LAW – Whether provision of enterprise
agreement providing that an employer may require an employee to
work reasonable overtime is capable of being contravened by the
employer for the purpose of s 50 of the Fair Work Act 2009
(Cth) – principles of construction of an enterprise
agreement. Appeal allowed.
Construction, Forestry, Maritime, Mining and Energy Union v
BM Alliance Coal Operations Pty Ltd [2018]
FCA 1590
PRACTICE AND PROCEDURE – Application for
interlocutory injunction pursuant to s 545 of the Fair Work Act
2009 (Cth) (FW Act) and s 23 of the
Federal Court of Australia Act 1976 (Cth) – alleged
adverse action for a prohibited reason or reasons under the FW Act
– prima facie case – balance of convenience.
INDUSTRIAL LAW – Where a mine worker had previously been
reinstated by her employer after successfully unfair dismissal
– where the mine worker was informed that she was no longer
required at the mine – where on the night prior to being
informed that she was no longer needed, the applicant purported to
exercise workplace rights – where no reasons were given for
the demobilisation of the mine worker – whether the mine
worker exercised workplace rights as defined in the Fair Work
Act 2009 (Cth) (FW Act) – whether the
decision that the mine worker was no longer needed was made prior
to the purported exercise of workplace rights – whether
adverse action was taken for a prohibited reason or reasons in
contravention of s 340 of the FW Act – whether the
application is statute barred as a result of s 725 of the FW
Act.
BlueScope Steel Limited v Australian Workers'
Union [2018] FCA
1574
INDUSTRIAL LAW – Where employee organisation
contravened s 417 Fair Work Act 2009 (Cth) by organising
meeting of employees – where vote taken at meeting for
24-hour strike/stoppage – whether employee organisation also
organised industrial action in the form of strike/stoppage –
whether employee organisation's contravention of s 417 extended
to organising strike/stoppage – where employer did not
discharge onus of proving that employee organisation organised
strike/stoppage.
INDUSTRIAL LAW – Where employees contravened s 417 Fair
Work Act 2009 (Cth) – accessorial liability of employee
organisation for employees' contravention – whether
employee organisation was knowingly concerned in, and therefore
involved in, employees' contravention of s 417, pursuant to s
550 Fair Work Act 2009 (Cth) – where employer did
not discharge onus of proving that employee organisation was liable
for organisation of strike/stoppage.
INDUSTRIAL LAW – Whether employee organisation contravened s
475 Fair Work Act 2009 (Cth) – whether employee
organisation asked employer to make payments to employees in
contravention of s 474 Fair Work Act 2009 (Cth) –
where terms of legislation clear – motive for making request
irrelevant.
Australian Building and Construction Commissioner v
Construction, Forestry, Mining and Energy Union (The BKH
Contractors Case) (No 2) [2018] FCA
1563
INDUSTRIAL LAW – Penalties – contraventions of
ss 340, 343, 494, 500 of the Fair Work Act 2009 (Cth)
– quantification of penalties – primary objective of
deterrence – considerations to be taken into account in
quantifying penalties – consideration of relevance of maximum
penalty – requirement to impose separate penalties for
separate contraventions – imposition of penalties where
multiple contraventions arise from a common set of facts –
application of the course of conduct principle – application
of the totality principle – consideration of the need for
parity in penalties – consideration of relevance of loss
caused by contravening conduct – consideration of relevance
of the size and nature of a contravening organisation –
consideration of relevance of submissions in the process of
quantifying penalties.
Coote v Mainline Access Pty Ltd & Anor
(No.2) [2018] FCCA 2892
INDUSTRIAL LAW – Application for the recovery of wages and
other entitlements based on contravention of award and therefore s
45 of the Fair Work Act 2009 (Cth) (FW
Act) – whether amounts payable under award are to be
calculated by reference to rate agreed between the employer and
employee that is higher than the rates provided for under award
– whether because the employer and employee mistakenly
intended that the employee would be engaged as a contractor but
instead created or maintained an employer/employee relationship the
agreed rate is not recoverable - whether if amounts payable under
the award are not to be calculated by reference to the higher
agreed rates whether employee can concurrently maintain an action
in contract to recover amounts calculated by reference to the
agreed rate – appropriation of payments to entitlements under
awards discussed – if after appropriation of payments there
remain amounts payable under the award and the employer, therefore,
contravened the award and, therefore, s 45 of the FW Act, whether
the sole director and shareholder was involved in those
contraventions.
INDUSTRIAL LAW – Claims for contraventions of various other
provisions of the Fair Work Act 2009 (Cth) – whether
employer contravened provisions – whether sole director and
shareholder of employer was involved in contraventions. Fair
Work Act 2009 (Cth) ss 44, 45, 87, 90, 323, 324, 535, 536,
545, 550; Fair Work Regulations 2009 (Cth) regs. 3.33(1), 3.34.
Karlovasitis v Link Property Services Pty Ltd
(No.2) [2018] FCCA
2848
INDUSTRIAL LAW – Fair work – interpretation of
a contract of employment insofar as it relates to commissions for
work written before resignation but not paid until afterwards.
Fair Work Ombudsman v Poisson Pty Ltd &
Anor [2018] FCCA 2766
INDUSTRIAL LAW – Application for imposition of
pecuniary penalties – contravention of Fair Work Act
– contravention of Award entitlements to basic rate of pay,
penalty rates and loadings – failing to keep records –
penalties imposed. Fair Work Act 2009 (Cth), ss 3(b), 12,
45, 44(1), 535(1), 536(2), 539(2), 546(1) & (2), 546(1),
550(2), 557, 557(1).
(3) The First Respondent pay a total penalty of $142,144 pursuant
to section 546(1) of the FW Act, for committing the contraventions
set out in order 1 above.
(4) The Second Respondent pay a total penalty of $26,780 pursuant
to section 546(1) of the FW Act, for her involvement in the
contraventions set out in order 1 above.
Australian Building and Construction Commissioner v
Gava [2018] FCA 1480
INDUSTRIAL LAW – Contraventions of s 503 of the
Fair Work Act 2009 (Cth) (the FW Act)
– First Respondent causing entry notice to be sent with the
intention of giving the impression that he was a permit holder
authorised to send an entry notice and authorised to enter the site
– First Respondent's subsequent entry to site with the
intention of giving the impression that he was a permit holder
authorised to enter the site – whether two acts were part of
the same action and constituted a single contravention – two
actions held to be separate and distinct contraventions –
appropriate pecuniary penalties for contraventions by union and
union official.
INDUSTRIAL LAW – Personal payment order under s 546 of the FW
Act – whether appropriate to make a personal payment order
– union official is no longer employed by the union and
conduct isolated – personal payment order not appropriate in
the circumstances. Penalties awarded.
Legislation
Commonwealth
Corporations Amendment (Strengthening Protections for
Employee Entitlements) Bill 2018
HR Third reading agreed to 24/10/2018
Amends the Corporations Act 2001 to strengthen enforcement
and recovery options to deter and penalise company directors and
other persons who engage in, or facilitate, transactions that are
aimed at preventing, avoiding or significantly reducing employer
liability for employee entitlements in insolvency; enable the
recovery of unpaid employee entitlements of an insolvent company
from certain entities in limited circumstances; and enable the
Australian Securities and Investments Commission to disqualify
company directors and other officers (either directly or on
application to the Court) ,where they have a track record of
corporate contraventions and inappropriately using the Fair
Entitlements Guarantee scheme to pay outstanding employee
entitlements; and Corporations (Aboriginal and Torres Strait
Islander) Act 2006 to make a consequential amendment.
A Fair Go for Australians in Trade Bill 2018 [No.
2]
Senate Second reading moved 16/10/2018
The bill prohibits the Commonwealth from entering into a trade
agreement that includes certain provisions; requires the
Commonwealth to include in all bilateral trade agreements a labour
chapter with internationally recognised labour principles; prohibit
the Commonwealth from entering into a trade agreement unless the
agreement requires skills assessments to be undertaken in
Australia; requires the minister to commission an independent
national interest assessment of any proposed trade agreement; and
provides for the establishment of an accredited trade advisers
program.
Fair Work Amendment (Restoring Penalty Rates) Bill
2018
HR Second reading debate 15/10/2018
Amends the Fair Work Act 2009 to provide that modern
awards cannot be varied to reduce penalty rates or the hours to
which penalties rates apply if the variation is likely to result in
a reduction in the take-home pay of an employee; and provide that
any such determination made by the Fair Work Commission made on or
after 21 June 2017 is of no effect.
House of Representatives Removed from the Notice Paper
Fair Work Amendment (Making Australia More Equal) Bill
2018
House of Representatives Removed from the Notice Paper in
accordance with (SO 42) 23/10/2018
Amends the Fair Work Act 2009 to enable the Fair Work
Commission to issue a minimum entitlements order which would extend
certain provisions of the Act, a modern award or an enterprise
agreement to workers.
Fair Work Amendment (Better Work/Life Balance) Bill
2018
House of Representatives Removed from the Notice Paper in
accordance with (SO 42) 16/10/2018
Amends the Fair Work Act 2009 to provide employees with
enforceable rights to request flexible working arrangements; and
provide the Fair Work Commission with the power to make flexible
working arrangements orders.
Fair Work Amendment (Tackling Job Insecurity) Bill
2018
House of Representatives Removed from the Notice Paper in
accordance with (SO 42) 16/10/2018
Amends the Fair Work Act 2009 to provide a process for an
employee who is a casual or rolling contract employee to request to
move to ongoing employment on a part-time or full-time basis; and
provide the Fair Work Commission with the power to make a secure
employment order.
New South Wales
Regulations
Industrial Relations (National System Employers) Amendment (Councils) Order 2018 (2018-583) — published LW 12 October 2018.
Victoria
Regulations
No 179:
Labour Hire Licensing Regulations 2018
23 October 2018 - The objectives of these Regulations are—
(a) to prescribe persons who are not workers for the purposes of
the Act; and (b) to prescribe the circumstances in which an
individual is taken to perform work as part of a business or
undertaking.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.