In the media
New minimum wage takes effect from 1 July
The Fair Work Commission issued the Annual Wage Review
decision on 1 June 2018, lifting the national minimum wage and
award minimum wages by 3.5 per cent. For about 200,000 workers who
are paid the national minimum wage, base wages will increase from
$18.29 an hour or $694.90 per 38-hour week to $18.93 an hour or
$719.20 per week. A summary of the decision is available on the
Commission's website. The increase will take effect from the
first full pay period on or after 1 July 2018. Employers should
refer to their modern award to ensure that they are paying the
correct rates to their employees from the first full pay period
starting on or after 1 July 2018. The Fair Work Commission has also
published fact sheets for some modern awards.
More...
(Media) More...
Appointment of new Fair Work Ombudsman
The Australian Government has today announced the
appointment of Sandra Parker PSM as the Fair Work Ombudsman for a
five-year term, commencing on 15 July 2018 (22 June 2018).
More...
The Gig Economy: Navigating new ways to work
Opinion piece on the Gig Economy by Natalie James, Fair
Work Ombudsman (20 June 2018).
More...
Fair Work Ombudsman commences legal proceedings against
Foodora
In a recent Media Release from the Fair Work Ombudsman
(the FWO), it was announced that legal proceedings
against food delivery company Foodora Australia Pty Ltd
(Foodora) have commenced in the Federal Court of
Australia (NSW Registry). The FWO alleges that the company has
engaged in sham contracting activity that resulted in the
underpayment of workers (18 June 2018). More...
(Media) More...
Fair Work Ombudsman to work with local councils to
improve management of security supply chains
The Fair Work Ombudsman has today released the findings
of its Inquiry into the procurement of security services by local
government, highlighting an opportunity for councils to work with
the regulator to improve supply chain governance effort (25 June
2018).
More...
'Reasonable steps' to promote compliance
essential for franchisors to avoid liability and brand damage, says
FWO
With recent laws changes setting clear expectations that
franchisors need to consider how to prevent exploitation of
workers, the Fair Work Ombudsman has launched a new resource
providing practical advice to assist franchisors to promote
sustained workplace compliance in their networks (14 June 2018).
More...
Almost $100k in penalties after Caltex franchisee
falsified wage records
Penalties of almost $100,000 against a former Caltex
franchisee in Sydney for falsifying wage records send a message
that serious consequences apply when fabricated records frustrate
investigations, according to Fair Work Ombudsman Natalie James (28
June 2018).
More...
$216,700 in penalties after Pizza Hut franchisee engages
in sham contracting
A Pizza Hut franchisee on the Gold Coast has been
penalised a total of $216,700 after exploiting an Indian delivery
driver under a sham contract and using false records to try to
cover it up (15 June 2018).
More...
$900k in underpayments, discrimination & coercion
alleged in new action against massage parlour
The Fair Work Ombudsman has commenced civil legal
proceedings against the former operators of a Canberra massage
parlour, alleging they exploited seven Filipino workers,
underpaying them a total of more than $900,000 and threatening to
have their families in the Philippines killed if they complained to
the department responsible for immigration (29 June 2018).
More...
Migrant workers allegedly paid no wages for a year's
work under 'work experience' scheme
The Fair Work Ombudsman has commenced legal action
against a Sydney childcare operator that allegedly failed to pay
two migrant workers any wages for a year of work under the guise of
an 'unpaid work experience' scheme (08 June 2018).
More...
Fair Work Ombudsman releases results of Darwin and
Adelaide audits
The Fair Work Ombudsman's proactive compliance and
education campaign in Darwin has found that 54 per cent of audited
businesses were non-compliant with their workplace obligations (08
June 2018).
More...
Separately, a Fair Work Ombudsman audit of 125 businesses across
the Adelaide CBD and surrounding suburbs have found 45 per cent to
be non-compliant with workplace laws (06 June 2018).
More...
Four insights to improve culture in government
workplaces
There are common mistakes government professionals make
when handling conflict, complaints and poor culture, but there are
clear ways to avoid them (26 June 2018).
More...
CFMMEU officials facing court for allegedly stopping
crane on Devonport construction site
The ABCC has commenced proceedings in the Federal Court
against the CFMMEU and two of its officials for allegedly
contravening right of entry laws at the Living City Project in
Devonport, Tasmania (27 June 2018).
More...
Landmark ruling: CFMMEU official to feel sting of
penalties for breaking the law; union penalty almost doubled
In a significant decision today the Full Federal Court
confirmed it will order a CFMMEU official to personally pay his
penalty for breaking the law, without seeking or receiving
financial assistance from the union (25 June 2018).
More...
Federal Court: CFMMEU senior leadership condoned
lawbreaking; $142,000 penalty imposed
The Federal Court has imposed total penalties of $142,000
on the CFMMEU and three of its officials for taking coercive action
at a Carlton building site in March 2015 on the basis that senior
CFMMEU leadership condoned the contravening conduct (22 June 2018).
More...
CFMMEU penalised for unlawful industrial action
Legal action by the Fair Work Ombudsman has resulted in
the Construction Forestry Maritime Mining and Energy Union
(CFMMEU) being penalised in Court for organising
unlawful industrial action at shipping terminals in Sydney and
Brisbane (21 June 2018).
More...
Court penalises CFMMEU and official for threatening and
abusing workers
The Federal Court has penalised the CFMMEU and its
official Bradley Upton $51,300 for abusing and threatening
construction workers on the Gorgon LNG Project in Western Australia
(14 June 2018).
More...
Published reports articles, speeches
Power to the people: how stronger unions can deliver
economic justice
Joe Dromey; IPPR Commission on Economic Justice: 10
June 2018
This paper shows why trade unions and collective bargaining
are good for workers and good for the economy. It shows how the
decline of the union movement has contributed to a growing power
imbalance in the economy and to soaring inequality. More...
Monthly Leading Indicator of Employment June 2018
The Department of Jobs and Small Business' Monthly
Leading Indicator of Employment has remained stable for the third
consecutive month in June 2018, after rising for seven consecutive
months. In June 2018, subtractions from the US Yield Difference and
the Consumer Sentiment Index were balanced by contributions from
the Purchasing Managers' Index for Manufacturing Output in
China and the Leading Index of Economic Activity.
More...
In practice and courts
2018 Annual Wage Review – Fair Work Ombudsman pay
tools are ready
The Fair Work Ombudsman have updated their pay tools
following the Fair Work Commission's decision to increase base
rates of pay by 3.5%. The increase applies from the first full pay
period starting on or after 1 July 2018.
More...
July 1 legal changes your business needs to know
about
Updates to the minimum wage, penalty rates, Single Touch
Payroll, the unfair dismissal threshold and superannuation are some
of the key changes taking effect from 1 July 2018.
More...
Reforms to Address Corporate Misuse of the Fair
Entitlements Guarantee scheme – Draft Legislation
The proposed laws will provide a significant disincentive
for employers that exploit the taxpayer-funded scheme and avoid
their responsibilities to their employees. The draft legislation
will strengthen and improve enforcement and recovery options of
unpaid employee entitlements to deter misuse of the FEG scheme.
This will also ensure the burden on the scheme is relieved so that
it remains sustainable (12 June 2018).
More...
The proposed laws follow extensive public consultation undertaken
in 2017. Interested parties can submit responses to this
consultation up until 9 July 2018 (12 June 2018). More...
Cases
Australian Building and Construction Commissioner v
Construction, Forestry, Maritime, Mining and Energy Union
("Cardigan St Case") [2018] FCA
957
INDUSTRIAL LAW – admitted contraventions of s.355
and s.348 of the Fair Work Act 2009 (Cth) – making
of declarations – principles relating to imposition of agreed
pecuniary penalties – relevance of previous contraventions of
industrial legislation by registered organisation to the penalty to
be imposed upon an individual respondent employed by that
organisation – relevance of previous contraventions of
industrial legislation by a different branch or division of a
registered organisation – whether senior officials of a
registered organisation involved in contravening conduct –
proportionality of penalty to contravening conduct – whether
co-operation justify any mitigation – general deterrence
– specific deterrence – absence of contrition –
principle of totality – whether a single course or multiple
courses of conduct. Fair Work Act 2009 (Cth), ss.355 and
348.
Construction, Forestry, Maritime, Mining and Energy Union v
Australian Building and Construction Commissioner (The
Non-Indemnification Personal Payment Case)
[2018] FCAFC 97
INDUSTRIAL LAW – contraventions of s.348 of
Fair Work 2009 (Cth) – blockade of work site and
threats made by union official – re-sentencing –
appropriate pecuniary penalties for contraventions by union and
union official.
INDUSTRIAL LAW – personal payment order under s.546 of
Fair Work Act 2009 (Cth) – whether appropriate to
make personal payment order – scope of personal payment order
that is appropriate in the circumstances.
Fair Work Ombudsman v Construction, Forestry, Maritime,
Mining and Energy Union [2018] FCA
934
INDUSTRIAL LAW – meaning of s.557(3) of the
Fair Work Act 2009 (Cth) – penalty for unlawful
industrial action – no compensation under s.545(1)
appropriate – conduct of employer and purpose of industrial
action relevant to penalty and compensation – whether
employer wants compensation relevant to whether a compensation
order should be made – Building and Construction Industry
Improvement Act 2005 (Cth) s.69. The respondent pays a
pecuniary penalty of $38,000 in respect of its contravention of
s.417(1) of the Fair Work Act.
Australian Building and Construction Commissioner v Upton
(The Gorgon Project Case) (No 2) [2018] FCA
897
INDUSTRIAL LAW – where declarations made that
respondents contravened sections 346(a), 348 and 500 of the
Fair Work Act 2009 (Cth) – appropriate pecuniary
penalties – where only one penalty imposed in respect of the
three civil penalty provisions pursuant to s.556 – where the
lead contravention is intent to coerce in breach of s.348 –
where penalties should reflect both specific and general deterrence
– where the first respondent's contraventions were
deliberate and no contrition shown – penalty of 75% of the
maximum imposed on first respondent – contravention record of
second respondent regarded – where second respondent must do
more to ensure its officials meet standards of the Act –
penalty of 80% of maximum imposed on second respondent.
Australian Building and Construction Commissioner v
Construction, Forestry, Mining and Energy Union (The Laverton North
and Cheltenham Premises Case) [2018] FCAFC
88
INDUSTRIAL LAW – appeal from a judgment of the
Federal Court of Australia – where the primary judge found
that two officials of the Construction, Forestry, Mining and Energy
Union, who held permits under the Fair Work Act 2009
(Cth), had not contravened ss.500 and 340 of that Act – where
the permit holders made five entries to the relevant premises
– where those permit holders did not provide notice of those
entries as required by s.487 – where, once they had entered,
they did not produce their permits upon request as required by
s.489 – where the primary judge held that, because no notice
had been given and no permits had been produced upon request, they
were not exercising, or seeking to exercise, rights in accordance
with Part 3-4 of the Fair Work Act 2009 (Cth) and so s.500
was not engaged – where the primary judge held that s.340 had
not been contravened because the request for the production of a
permit under s.489 did not involve a "workplace right" as
defined by s.341 – whether the primary judge erred in failing
to find contraventions of ss.500 and 340.
INDUSTRIAL LAW – where the respondents cross-appealed from
the same judgment – whether the primary judge erred by
finding, for reasons of comity, that a bare failure by a permit
holder to give notice under s.487 or to produce a permit under s
489 constitutes acting in an "improper manner" for the
purpose of s.500 – whether the primary judge erred by failing
to hold that s.500 could not be contravened without a finding of
some prejudice to the site occupier's ability to conduct its
business as usual – whether the primary judge erred by
failing to dismiss the alleged contraventions of s.500 in
circumstances where he had found that the Commissioner's
pleadings were confined to allegations of bare contraventions of
ss.487 and 489 – whether the primary judge erred in holding
that the Commissioner's pleadings were so confined –
whether the primary judge erred by finding that, had s.361(1) of
the Fair Work Act 2009 (Cth) been engaged for the purposes
of s.340, the third respondent would not have discharged his onus
to prove that he had not acted for a proscribed purpose.
STATUTORY INTERPRETATION – meaning of "exercising, or
seeking to exercise, rights in accordance with this Part" in
s.500 of the Fair Work Act 2009 (Cth) – whether a
permit holder who refuses or fails to comply with s.487 or s.498
could be found to be exercising or seeking to exercise a right in
accordance with Part 3-4 of the Fair Work Act 2009 (Cth)
– whether "in accordance with" means "in
conformity with" or "covered by".
STATUTORY INTERPRETATION – meaning of "otherwise act in
an improper manner" in s.500 of the Fair Work Act
2009 (Cth) – whether a bare failure to comply with s.487
or s.489 constitutes acting in an improper manner.
STATUTORY INTERPRETATION – meaning of "workplace
right" in s.341(1) of the Fair Work Act 2009 (Cth)
– whether the ability of an occupier to request the
production of authority documents under s.489 constitutes an
entitlement to the benefit of, or a role or responsibility under, a
workplace law for the purposes of s.341(1)(a) – whether a
request for authority documents constitutes initiation of, or
participation in, a process or proceeding under a workplace law for
the purposes of s.341(1)(b). Building and Construction Industry
Improvement Act 2005 (Cth) ss.36(1), 36(1)(b).
Registered Organisations Commissioner v
Mijatov [2018] FCA
939
INDUSTRIAL LAW – penalty dispute arising from
conceded liability for contraventions of care and diligence duties
in relation to financial management of union under s.285(1) of
Fair Work (Registered Organisations) Act 2009 (Cth)
– failure to prepare and table budgets – agreed payment
of back pay but disagreement as to entitlement – value of
general deterrence for financial management contraventions –
whether applicant discharged onus of showing failure of respondent
to take necessary care in obtaining back payment and that resulting
in payment without entitlement – whether any mitigating
circumstances – held: onus discharged by applicant but
seriousness of offence lessened by mitigating circumstances –
held: penalties ordered totalling $2,000.
Quirk v CFMEU and Miller v CFMEU (No.3)
[2018] FCCA 1455
INDUSTRIAL LAW – alleged breaches of the Fair
Work Act 2009 (Cth) – dismissal from employment in
contravention of general protections.
COSTS – Application for costs pursuant to s.570 of the
Fair Work Act 2009 (Cth) in relation to unsuccessful
Application in a Case for transfer to the Federal Court of
Australia – meaning of the term proceeding – whether
the proceedings were instituted without reasonable cause –
whether the proceedings were instituted vexatiously – whether
indemnity costs – costs orders made – application for
costs pursuant to s.570 of the Fair Work Act 2009 (Cth) in
relation to unsuccessful application for summary dismissal –
whether the respondents engaged in an unreasonable act or omission
– costs orders made.
Fair Work Ombudsman v Photoplus Australia Pty Ltd &
Anor [2018] FCCA
1154
INDUSTRIAL LAW – assessment of penalties for
admitted contraventions of the Fair Work Act and applicable Award
– Statement of Agreed Facts – parties in substantial
agreement as to outcome – penalties imposed at 80 per cent of
range agreed by the parties.
Fair Work Ombudsman v Choi Brothers Pty Ltd &
Anor [2018] FCCA 1155
INDUSTRIAL LAW – assessment of penalties for
admitted contraventions of the Fair Work Act and applicable Award
– Statement of Agreed Facts – parties in substantial
agreement as to outcome – penalties imposed at 80 per cent of
range agreed by the parties.
Fair Work Ombudsman v Deja Vu Elite Security Pty Ltd &
Anor [2018] FCCA
1402
INDUSTRIAL LAW – alleged contraventions of Fair
Work Act 2009 and Fair Work Regulations 2009 –
some contraventions admitted – some alleged contraventions
disputed – hearing on liability in respect of disputed
contraventions – contraventions found proven.
Legislation
Commonwealth
Legislative Instruments
Fair
Work (State Declarations — employer not to be national system
employer) Endorsement 2018 (No. 1)
29 June 2018 - This instrument endorses a declaration by
the New South Wales Minister for Industrial Relations that certain
named Joint Organisations are not national system employers for the
purposes of the Fair Work Act 2009.
Bills
Modern Slavery Bill
2018
House of Representatives Second reading moved 28
June 2018
The Modern Slavery Bill 2018 will establish a Modern Slavery
Reporting Requirement. This will require certain large businesses
and other entities in Australia to make annual public reports
(Modern Slavery Statements) on their actions to address modern
slavery risks in their operations and supply chains.
Fair Work Amendment (A Living Wage) Bill
2018
Introduced in the House of Representatives on 25
June 2018.
The Bill amends the Fair Work Act 2009 to lift the
national minimum wage to a living wage of 60% of the median
full-time weekly wage (as determined by the Australian Bureau of
Statistics).
Fair Work Amendment (Restoring Penalty Rates) Bill
2018
Introduced to the House of Representatives 25 June
2018.
Second reading moved 25 June 2018 - The Fair Work Amendment
(Restoring Penalty Rates) Bill 2018 will ensure that modern
awards cannot be varied to reduce the take-home pay of an employee.
This includes any reduction in take-home pay as a result of a
reduction in penalty rates or the hours to which penalty rates
apply.
Victoria
Labour Hire Licensing Act
2018
Date of assent: 26 June 2018; Act Number: 25/2018
Workplace law means the following— (a) a provision of a law
of Victoria, the Commonwealth, another State or a Territory that
imposes an obligation on a person in relation to employees or
contractors (however described), including but not limited to, the
following — (ix) the Construction Industry Long Service
Leave Act 1997.
Victorian legislation is available at www.legislation.vic.gov.au.
New South Wales
Proclamations commencing Acts
Teaching and Education Legislation Amendment (Employment)
Act 2018 No 3
(2018-258) — published LW 14 June 2018.
Bills passed by both Houses of Parliament and assented to
Modern Slavery Bill 2018 No 30 — Assented to 27 June 2018
For the full text of Bills, and details on the passage of Bills, see Bills.
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.