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.
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.