Australia: Workplace Relations Monthly Update - March 2018

Last Updated: 11 April 2018
Article by Stephen Trew, Michael Selinger, Charles Power, Benjamin Marshall and Rachel Drew

Most Read Contributor in Australia, September 2018

In the media

$200,000 in penalties after overseas worker exploited and sacked by text message
The former owner-operator of an Indian restaurant in Perth has been penalised more than $200,000 after paying an overseas cook nothing for almost four months' work then sacking him by text message for taking a day of sick leave (27 March 2018). More...

Minister Laundy welcomes end to Oaky Creek dispute
Minister for Small and Family Business, the Workplace and Deregulation, Craig Laundy, welcomed news that miners at Glencore's Oaky Creek mine in Queensland have voted to support a new enterprise agreement (28 March 2018). More...

Fact check: Are one in 10 workers in Australia on temporary work visas?
Australian Council of Trade Unions secretary Sally McManus has called for an end to Australia's uncapped temporary working visa system, saying that one in 10 workers in the Australian labour force are on temporary work visas (27 March 2018). More...

UQ senior professor quits before responding to sexual misconduct allegation
The University of Queensland confirms a senior professor accused of sexually assaulting a colleague on a work trip resigned a day before a deadline to formally respond to the allegation (27 March 2018). More...

Government to extend family and domestic violence leave
The Turnbull Government will ensure that up to a further six million workers covered by the Fair Work Act will have access to five days unpaid family and domestic violence leave per year. This follows a decision by the independent Fair Work Commission today to provide five days of unpaid family and domestic violence leave per year to up to 2.3 million people on modern awards (26 March 2018). More...

Half of Barossa businesses breaching workplace laws, campaign finds
Half of Barossa businesses are committing at least one breach of workplace laws, according to a report released by the Fair Work Ombudsman (22 March 2018). More...

Western Sydney campaign reveals high rates of unlawful workplaces
High rates of non-compliance uncovered by the Fair Work Ombudsman in Western Sydney have reinforced the importance of ensuring that Australia's culturally and linguistically diverse communities have ready access to workplace information and advice (16 March 2018). More...

FIFO mental health study sparks social media backlash
A researcher is shocked by the response to a study that found most fly-in fly-out workers don't seek mental health support because they feel they should toughen up (12 March 2018). More...

Unions raise safety concerns over 'gig economy' cowboys
Unions NSW and some tradespeople are calling on the Federal Government to set up an independent regulator to oversee the emerging gig economy, amid concerns workers' safety is at risk (09 March 2018). More...

CFMEU and 19 officials penalised $817,500 for "deliberate, flagrant and systematic" campaign in Queensland
The CFMEU and 19 of its officials have been penalised $817,500 after they shut down two major Brisbane sites in a "deliberate, flagrant and systematic" campaign aimed at forcing the sites' head contractor to sign a CFMEU enterprise agreement (09 March 2018). More...

Maximum penalty against CFMEU for flouting safety policy on NSW site
The Federal Circuit Court has imposed penalties of $58,500 on the CFMEU and its official for encouraging workers at a NSW site to defy their employer's safety policy (09 March 2018). More...

Uber drivers working for half the minimum wage, report says
Drivers for Australia's most popular ridesharing service are earning less than $15 an hour on average, according to a new report, with the Centre for Future Work director saying they are effectively subsidising the company's bid for dominance (06 March 2018). More...

FWO Report finds three quarters of Caltex sites breaching workplace laws
The Fair Work Ombudsman's latest Compliance Activity Report shows a workplace non-compliance rate of 76 per cent in the Caltex service network (06 March 2018). More... More...

Amerind decision to recover workers' entitlements
The Australian Government has successfully appealed a Supreme Court of Victoria decision that denied employees of an insolvent corporate trustee priority payment of their unpaid entitlements (03 March 2018). More...

In practice and courts

Update on Skilled Migration Occupations Lists
The Department of Home Affairs has announced changes to the Temporary Skills Shortage (TSS) visa. If you have questions about this announcement, please contact the Department of Home Affairs (19 March 2018). 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

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Cup of Tea Case) [2018] FCA 402
INDUSTRIAL LAW – allegations of contraventions of s.500 of the Fair Work Act 2009 (Cth) – whether the respondents sought to exercise a right conferred by s.484 were exercising or seeking to exercise rights under Pt 3-4 of the Act – whether the entry on a site for a social purpose falls within s.484 of the Act.
INDUSTRIAL LAW – allegation of contraventions of s.348 of the Fair Work Act 2009 (Cth) – whether respondent threatened to take action against a contractor – oral evidence from two witnesses of the same conversation – evidence from both witnesses exactly balanced – burden of proof is not discharged.

Swanson v Monash Health [2018] FCCA 538
INDUSTRIAL LAW – Applicant's exercise of workplace right to take paid personal leave under s.97 of the Fair Work Act 2009 (Cth) (the Act) – allegations that Respondent contravened s.340(1)(a)(ii) of the Act by threatening to and ultimately summarily terminating Applicant's employment by reason of, or for a reason including, the exercise by the Applicant of a workplace right – directions issued by Respondent for Applicant to attend an independent medical assessment whilst on paid personal leave – whether the exercise of a workplace right under s.97 of the Act includes a right not to work, including a right to refuse directions made by an employer to attend an independent medical assessment – whether directions made by Respondent were lawful – whether directions made by Respondent were reasonable – held that the exercise of a workplace right under s.97 of the Act does not include a right not to work, including to refuse directions made by an employer – held that directions issued by Respondent were lawful and reasonable – held that Respondent did not take adverse action for the reason, or for a reason or reasons including, that the Applicant exercised a workplace right – application dismissed. Disability Discrimination Act 1992 (Cth); Fair Work Act 2009 (Cth), ss.61(1), 97, 107, 340, 342, 351(1), 352, 360, 361, pts.2-2, 3-1; Occupational Health and Safety Act 2004 (Vic).

Surace v Peoplesmove Pty Ltd (trading As Carhood) [2018] FCCA 601
INDUSTRIAL LAW – Small claims – applicant claims he was covered by the Clerks – Private Sector Award 2010 and classified as a Clerical Employee Level 4 – applicant claims underpayment of wages and accrued annual leave – respondent argues applicant was covered by Miscellaneous Award 2010 and excluded as a managerial employee – respondent submits applicant was overpaid under employment agreement and seeks order that overpayment be paid by applicant to respondent – held applicant a Retail Employee Level 4 under the General Retail Industry Award 2010 – orders made for parties to calculate applicant's entitlements and any outstanding monetary amount. Fair Work Act 2009 (Cth), pt.4-1 div.3.

Fair Work Ombudsman v Raying Holding Pty Ltd & Anor (No.3) [2018] FCCA 668
INDUSTRIAL – Liability as accessory to employer's contraventions of the Fair Work Act 2009 – sham contracting – underpayment of employees – failure to keep records – failure to provide pay slips – pecuniary penalties – relevant considerations – course of conduct. Fair Work Act 2009, ss.44, 45, 357, 535, 536, 539, 546, 550, 557; Crimes Act 1914, s.4AA; Fair Work Regulations 2009, regs.3.33, 3.34, 3.36, 3.37.

Fair Work Ombudsman v WXZ Enterprises Pty Ltd & Ors [2018] FCCA 616
INDUSTRIAL LAW – Division 2B State awards – modern award – underpayment of employees – failure to provide pay slips – failure to keep records.
INDUSTRIAL LAW – Accessorial liability – accessory's alleged liability for involvement in principal's contraventions of award – alleged accessory must know relevant award applies to employee.
INDUSTRIAL LAW – Accessorial liability – accessory's alleged liability for involvement in principal's contraventions of statute – ignorance no defence to allegation of liability as accessory to breaches of statute.
Fair Work Act 2009, ss.13, 14, 22, 30M, 30N, 42, 44, 45, 60, 90, 99, 116, 308, 311, 312, 313, 529, 535, 536, 539, 545, 547, 550; Fair Work Regulations 2009, regs.3.32, 3.33, 3.34, 3.36, 3.37.

Choppair Helicopters Pty Ltd v Bobridge [2018] FCA 325
INDUSTRIAL LAW – appeal from decision of the Federal Circuit Court of Australia in relation to underpayments under an award – where the respondent was a qualified commercial helicopter pilot who was required in her employment to perform mixed duties involving business administration and occasionally flying – whether the primary judge erred in finding that the Air Pilots Award 2010 (AP Award) was the most appropriate award –principle of "major and substantial" employment supports the finding that classification as a helicopter pilot under the AP Award was appropriate – the primary judge did not err.
APPEAL AND NEW TRIAL –whether leave should be granted to make a new argument that the Airline Operations – Ground Staff Award 2010 was the most appropriate award – where the argument might have been met by additional evidence below, leave to press new argument on appeal refused.
SUPERANNUATION – where the primary judge ordered that a shortfall in superannuation payments be paid as compensation direct to the respondent – the primary judge erred by not taking account of the effect of the legislative scheme for the payment of superannuation.
Fair Work Act 2009 (Cth) ss.47, 48, 550; Workplace Relations Act 1996 (Cth).

United Voice v Berkeley Challenge Pty Limited [2018] FCA 224
INDUSTRIAL LAW – application for compensation under s.545 of the Fair Work Act 2009 (Cth) (FWA) due to alleged breaches of the National Employment Standard – where the employer terminated the employment of various employees after losing a client contract for services which those employees performed – where the employer provided a notice letter to the employees advising them of the loss of client contract – whether this notice letter was a valid notice of termination under s.117 of the FWA – where the employer did not pay redundancy payments to the terminated employees – where the employer sought to rely on the "ordinary and customary turnover of labour" exception in s.119(1)(a) of the FWA – the meaning of this exception and whether it applied in the circumstances.

The FWC Bulletin
This weekly update lists current FWC decisions:
Volume 12/18 29 March 2018
Volume 11/18 22 March 2018
Volume 10/18 15 March 2018
Volume 9/18 8 March 2018

Legislation

Commonwealth

Proposed Drug Testing for Job Seekers Trial Bill Referred to Committee
On 22 March 2018, the Senate referred the controversial Social Services Legislation Amendment (Drug Testing Trial) Bill 2018 (the Bill) to the Senate Community Affairs Legislation Committee for inquiry and report. This Bill provides for the trialling of a new approach to identifying job seekers with substance abuse issues by drug testing 5,000 new recipients of Newstart Allowance and Youth Allowance (other) in three discrete locations over two years (28 March 2018).

Fair Work Amendment (Better Work/Life Balance) Bill 2018
House of Representatives Second reading moved 26 March 2018
The Fair Work Amendment (Better Work/Life Balance) Bill 2018 amends the Fair Work Act 2009 to provide enforceable rights to request flexible working arrangements to help employees achieve a better work/life balance. The Bill extends the right to request flexible working arrangements to all employees. In addition, the right to request would be strengthened for those employees with caring responsibilities.

Fair Work Amendment (Tackling Job Insecurity) Bill 2018
House of Representatives Second reading moved 26 March 2018
The Fair Work Amendment (Tackling Job Insecurity) Bill 2018 amends the Fair Work Act 2009 to provide for a process for 'insecure' workers to move to ongoing employment on a part-time or full-time basis.

Victoria

Bills

Long Service Benefits Portability Bill 2018
Date of second reading speech: 28 March 2018.

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