In the media
Cleaning operator taken to Court
The Fair Work Ombudsman has commenced legal action
against a Gosford cleaning operator, alleging he failed to comply
with a Compliance Notice that required him to back-pay two workers
a total of $3195 (30 July 2018).
More...
$31,000 penalty for underpaying visa workers
The Fair Work Ombudsman has secured $31,590 in penalties
against Rockhampton-based business Alertvale Pty Ltd that underpaid
two Filipino visa holders $9,931 when it made them redundant. The
company operates businesses providing services in the mining and
heavy industry sector in regional Queensland (30 July 2018).
More...
CFMMEU and officials fined $137,590 for cavalier and
reprehensible attitude
The Federal Court has imposed penalties totaling $137,590
against the CFMMEU and three of its officials for unlawfully
entering an Adelaide worksite on four occasions between April and
July 2014 (27 July 2018).
More...
Gold Coast security operator penalised $115,668
The Fair Work Ombudsman has secured a $115,668 penalty
against Gold Coast security company owner Adam Marcinkowski after
he admitted taking unlawful adverse action against a guard by
dismissing him. He also underpaid three other guards a total of
$15,938 between April 2015 and June 2016 (24 July 2018).
More...
FWO acts on EU non-compliance
The Fair Work Ombudsman has commenced legal action to
force Pristine Employment Solutions Pty Ltd to comply with terms of
an Enforceable Undertaking (EU) that was executed
in May 2017 (20 July 2018).
More...
Slavery in supply chains set to spiral over next two
decades
Drastic job losses in South East Asia resulting from the
onset of robot manufacturing are predicted to produce a spike in
slavery and labour abuses in global supply chains unless
governments take early measures to prevent automation threating
millions of livelihoods, states a new report by Verisk Maplecroft
(16 July 2018).
More...
New Anti-Slavery Bill Introduced to Federal
Parliament
On 28 June 2018, the Modern Slavery Bill 2018 (the
"Bill") was introduced to the House of
Representatives by the Hon Alex Hawke MP (Assistant Minister for
Home Affairs), where on the same day, it was referred to the Senate
Legal and Constitutional Affairs Legislation Committee (13 July
2018). More...
AHRC: Modern slavery 'hidden in plain
sight'
The Federal Government's proposed Modern Slavery Bill
2018 would require mandatory annual reporting by large businesses
and organisations on the risks of modern slavery in their supply
chains and operations. The Bill would also require the Federal
Government to publish an annual statement covering possible modern
slavery risks in Commonwealth procurement (03 July 2018).
More...
Bulk carrier banned for underpaying crew
The Australian Maritime Safety Authority
(AMSA) has banned the Hong Kong-flagged bulk
carrier MV Shandong Hai Wang for 12 months after it was discovered
that crew had been deliberately underpaid (12 July 2018).
More...
Three legal actions against remorseless trolley
collecting operator result in $130,000 in penalties
The Fair Work Ombudsman has secured more than $130,000 in
penalties against a Victorian trolley collecting operator, who
caused "financial and emotional hardship" to three
workers by sacking them and refusing to pay unfair dismissal
compensation (13 July 2018).
More...
Building a culture of compliance in the restaurant
sector through partnership between FWO and La Porchetta
A Compliance Partnership between La Porchetta Franchising
Pty Ltd (La Porchetta) and the Fair Work Ombudsman
(FWO) has demonstrated the effectiveness of close
engagement with the regulator in promoting a culture of compliance
throughout a franchise network (06 July 2018).
More...
Foodora rider alleges unfair dismissal for talking about
pay and rights
A former food delivery rider who is claiming unfair
dismissal at the Fair Work Commission says he is fighting for
change in the gig economy, in what is believed to be the first case
of its kind in Australia (03 July 2018).
More...
Career Transition Assistance for older workers
Mature-age people will now benefit from increased
employment opportunities through the Turnbull Government's
Career Transition Assistance (CTA) program trial
(02 July 2018).
More...
Published - reports, articles, speeches
Inquiry into penalty rates and fair pay: final
report
Legislative Assembly Penalty Rates and Fair Pay Select
Committee (Vic)
Parliament of Victoria: 24 July 2018
This inquiry, the first completed by a Legislative Assembly select
committee in many years, examined the impact on Victorians of the
Fair Work Commission's 2017 decision to reduce penalty rates in
the hospitality, fast food, retail and pharmacy sectors. More...
Trends in Federal Enterprise Bargaining report for the
March quarter 2018
Trends in Federal Enterprise Bargaining
(Trends) is a quarterly report that provides data,
and an accompanying explanatory summary, on quarterly growth in
wages and agreement making in the federal workplace relations
system (05 July 2018). More...
ABCC Industry Update June-July 2018
The information contained in this document is correct as
at 31 July 2018.
More...
In practice and courts
FWO: New unpaid family & domestic violence leave
entitlement
Most employees will be able to take unpaid leave to deal
with family and domestic violence from 1 August, following a Fair
Work Commission decision.
More...
FWO: 2018 Annual Wage Review – our pay tools are
ready
FWO 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...
FWC: Filing fee increase – dismissals, general
protections and anti-bullying applications
The filing fee for dismissal, general protections and
anti-bullying applications made under sections 365, 372, 394, 773
and 789FC of the Fair Work Act 2009 increased to $71.90 on
1 July 2018. The high income threshold in unfair dismissal cases
increased to $145,400 and the compensation cap to $72,700. Further,
Justice Ross has approved an amendment to
Form F3 – Employer's response to unfair dismissal
application, to incorporate the increase to the high income
threshold.
Employers who pay their employees under a modern
award
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.
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 proposed laws follow
extensive public consultation undertaken in 2017. More...
Cases
Australian Building and Construction Commissioner v
McDermott (No 3) [2018] FCA 1105
INDUSTRIAL LAW – imposition of civil penalties for
contraventions of s 500 of the Fair Work Act 2009 (Cth)
– assessment of seriousness of contraventions – little
or no significant economic consequences resulting from contravening
conduct – contraventions deliberate – contravening
conduct accompanied by defiant or mental attitude – no
evidence of contrition or correction – pressing need for
general deterrence.
COSTS – whether order for costs against applicant justified
under s 570 of the Fair Work Act 2009 (Cth) –
whether proceedings commenced or continued against a respondent
vexatiously or without reasonable cause – whether an
unreasonable act or omission caused the respondent to incur
costs.
Rangi v Kmart Australia Ltd [2018]
FCCA 2040
INDUSTRIAL LAW – Application for summary dismissal
– where part of the claim is statute barred – relief
sought in relation to a failure to promote – no prejudicial
alteration of Applicant's position – claim does not
engage s.342 of the Fair Work Act 2009 (Cth) – no
reasonable prospects of success – summary judgment entered.
Fair Work Act 2009 (Cth), ss.340, 341, 342, 361, 544,
570.
Fair Work Ombudsman v Alertvale Pty Ltd
[2018] FCCA 1998
INDUSTRIAL LAW – Penalty Hearing – where contraventions
of ss.44 and 323(1) of the Fair Work Act 2009 (Cth)
admitted – s.557 and the common law "course of
conduct" principle – consideration of factors relevant
to penalty – totality principle – consideration of the
appropriate penalty.
Moteki v Legnor Pty Ltd & Anor
[2018] FCCA 1988
INDUSTRIAL LAW – Breach of general protections under
the Fair Work Act 2009 – second respondent owner and
controller of the applicant's employer – default judgment
against both respondents – first respondent contravened ss
44, 45, 340(1)(a)(iii) and 535(3) of the Fair Work Act
2009 – no application made by second respondent to this
court or appeal court to argue set aside the default orders –
first respondent in liquidation – second respondent's
liability in this litigation not contingent upon solvency of first
respondent – second respondent an accessory to contraventions
committed by first respondent – applicant sought relief only
as against second respondent – applicant a full-time
permanent employee – employment covered by the Restaurant
Industry Award 2010 – level 5 food and beverage supervisor
– second respondent was director and chief executive officer
of first respondent – first respondent underpaid applicant
– applicant complained to second respondent about respondent
underpaying – applicant complained that first respondent had
not provided signed version of employment contract and employee
records despite request – complained that first respondent
did not pay superannuation entitlements – complained that
first respondent did not pay accrued entitlements –
complaints amounted to exercise of workplace right – second
respondent terminated employment of applicant by telephone –
second respondent later sent email to applicant with reasons for
termination – second respondent wanted to agitate threshold
issues that went to liability – second respondent was
knowingly concerned in all acts done by the first respondent
– no contrition exhibited by second respondent – no
corrective measures were taken – second respondent's
actions in paying incorrect amounts were deliberate – second
respondent driven by profitability of company – second
respondent argumentative, defiant and confrontational –
second respondent penalised for deliberateness in refusing to pay
applicant amounts to which she is legitimately entitled.
COMPANY LAW – Applicant's employer was first respondent
– first respondent was aligned to group of companies based in
Japan – entire business was funded by the group –
second respondent was sole director and shareholder of first
respondent – first respondent was a separate legal entity
– second respondent did not challenge he was controlling mind
of first respondent – second respondent an accessory to
contraventions committed by the first respondent.
Fair Work Ombudsman v NSW Motel Management Services Pty Ltd
& Ors (No 2) [2018] FCCA
1935
INDUSTRIAL LAW – Applicant claims underpayments
under and breach of Hospitality Industry (General) Award 2001
– whether employees covered by modern award –
classification of employees under modern award – whether
other alleged contraventions of modern award or Fair Work Act
2009 (Cth) made out – whether adverse action against
employee/s because of workplace right – accessorial liability
of second and third respondents.
Fair Work Ombudsman v VIP Security Services Pty Ltd &
Anor [2018] FCCA 1969
INDUSTRIAL LAW – Commonwealth – Compliance and
enforcement – Civil remedies – Pecuniary penalty orders
– Assessing penalty – Deterrence.
INDUSTRIAL LAW – Commonwealth – Compliance and
enforcement – Civil remedies – Pecuniary penalty orders
– Amount of penalty – Totality and proportionality.
Fair Work Act 2009, ss.550(1), 557(1)
Held: The aggregate penalty of $115,668.00 is, in my view, an
appropriate response to the conduct which led to these
contraventions. There is no evidence that it is, or is likely to
be, oppressive or crushing.
Australian Building and Construction Commissioner v
Construction Forestry, Maritime, Mining and Energy Union (The
Brooker Highway Case) [2018] FCA
1081
INDUSTRIAL LAW – where the Australian Building and
Construction Commissioner alleged contraventions, by two officers
of the Construction, Forestry, Maritime, Mining and Energy Union,
of ss 494(1) and 500, respectively, of the Fair Work Act
2009 (Cth) ("the FW Act") –
where both officers held entry permits under the Work Health
and Safety Act 2012 (Tas) – where only the second
officer held a permit under the FW Act – whether the union is
liable for any contraventions under s 550 and 793 of the FW
Act.
STATUTORY INTERPRETATION – meaning of "any other
right" in s 486 of the FW Act.
Australian Building and Construction Commissioner v
Construction, Forestry, Mining and Energy Union (The Parliament
Square Case) [2018] FCA
1080
INDUSTRIAL LAW – alleged contraventions of s 500 by
an official of the Construction, Forestry, Mining and Energy Union
at the Parliament Square construction site in Hobart, Tasmania
– where the official held entry permits under the Fair
Work Act 2009 (Cth) ("the Act") and
the Work Health and Safety Act 2012 (Tas) – where
the official entered the site on, relevantly, four of occasions in
2015 – whether the first three entries occurred pursuant to
the exercise of a right under s 484 – where it was agreed
that the last entry occurred pursuant to the exercise of a right
under s 494(2) – whether the official was "exercising,
or seeking to exercise, rights in accordance with" Part 3-4 of
the Act – whether the official acted in an "improper
manner" by not complying with notice requirements under s 487,
not producing a notice of entry upon request contrary to s 489(2),
not holding discussions during meal times or other breaks contrary
to s 490(2), not entering only on a day specified in an entry
notice contrary to s 490(3), refusing to leave the site when
requested, and using foul language – whether the official
contravened s 500 of the Act – whether the union should be
liable for any contraventions of s 500 by the official via
accessorial liability under ss 550(2)(c) and 793 of the Act.
Australian Licenced Aircraft Engineers Association v Qantas
Airways Ltd [2018] FCA
1065
INDUSTRIAL LAW – right of entry – where permit holder
sought to exercise right of entry – where permit holder
sought access to records or documents – whether permit holder
was lawfully exercising the right of entry – whether permit
holder had right to access records or documents –
consideration of requirements of entry notice – whether the
entry notice specified the particulars of the suspected
contravention – whether entry notice contained the requisite
declaration – whether right of entry exercised for the
purpose of investigating a suspected contravention – whether
suspicion of contravention reasonable – whether the documents
sought were directly relevant to a suspected contravention.
Acts Interpretation Act 1901 (Cth) s 23; Fair Work Act
2009 (Cth) Pt 3-4, ss 12, 481, 482, 484, 486, 487, 502, 518,
521, 550; Industrial Relations Act 1988 (Cth) (repealed) s
286; Workplace Relations Act 1996 (Cth) (repealed) s
768.
Fair Work Ombudsman v WCH Services Pty Ltd &
Anor [2018] FCCA
1878
INDUSTRIAL LAW – Penalty – undefended –
contravention of s.405 of the Fair Work Act 2009 (Cth)
– pecuniary penalty imposed – penalty to be paid to the
Commonwealth – costs awarded to the Applicant.
Fair Work Act 2009 (Cth), ss.405, 546, 550, 570; Fair Work
Regulations 2009 (Cth), reg.5.05.
Pursuant to s.546(1) of the Fair Work Act 2009 (Cth)
('the Act') that: (a) the First
Respondent, WCH Services Pty Ltd, pay a penalty of $32,400, for its
contravention of s.405 of the Act; and (b) the Second Respondent,
William Collen Hancock, pay a penalty of $6,480, for his
involvement in the First Respondent's contravention of s.405 of
the Act.
Jolley v Genesis Medical Trust t/a Mentone Medical
Clinic [2018] FCCA 1781
INDUSTRIAL LAW – Small Claims – Fair Work
division – Health Professionals and Support Services Award
2010.
Construction, Forestry, Maritime, Mining and Energy Union v
BHP Billiton Nickel West Pty Ltd [2018] FCAFC
107
INDUSTRIAL LAW – appeal from decision of single
judge – where s 490(2) of the Fair Work Act 2009
(Cth) confers right for union representatives to access work
premises to hold discussions with employees "during mealtimes
or other breaks" – whether holding discussions before an
employee's shift is permitted under s 490(2) – meaning of
the term "breaks" – finding that ordinary meaning
of the term "break" necessarily implies an interruption
in continuity – discussions to occur during, not before or
after, a work shift.
STATUTORY INTERPRETATION – whether the phrase "mealtimes
or other breaks" is ambiguous – whether appropriate to
have regard to the Explanatory Memorandum to the Fair Work Bill
2008 (Cth) – where Explanatory Memorandum includes
"holding discussions before or after an employee's
shift" as an example of a "break" – finding
that the phrase "mealtimes or other breaks" is
unambiguous – finding that recourse to the Explanatory
Memorandum is not merited – appeal dismissed.
Legislation
New South Wales
Regulations and other miscellaneous instruments
Industrial
Relations (General) Amendment (Fees) Regulation 2018 (2018-350)
— published LW 29 June 2018.
This Regulation commences on 1 July 2018 and is required to be
published on the NSW legislation website.
Victoria
Statutory Rules
No. 96 Surveillance Devices Amendment (Body-worn
Cameras) Regulations 2018
Date of Making: 10/07/2018 Commencement: 11/07/2018: reg.
3 Not yet in operation: N/A Sunset Date: 0/07/2028
Victorian legislation is available here.
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.
