Australia: Workplace Relations Monthly Update - April 2018

Last Updated: 5 May 2018
Article by Stephen Trew, Michael Selinger, Charles Power, Benjamin Marshall and Rachel Drew

Most Read Contributor in Australia, September 2018

In the media

'You will be sued': Melbourne cafe owner warns staff who claimed underpayment
A Northcote cafe owner accused of underpaying staff by at least $5 an hour threatens legal action against those who complained "if the harassment continues", as the Fair Work Ombudsman confirms it is now investigating the claims (27 April 2018). More...

Ombudsman calls for simplification of workplace relations for small business
The Australian Small Business and Family Enterprise Ombudsman, Kate Carnell, has released a position paper that identifies some simple steps to tackle the overly complex workplace relations system for small businesses (27 April 2018). More...

Migrant Workers' Taskforce to continue to protect vulnerable workers
The Australian Government has announced a six-month extension of the Migrant Workers' Taskforce so that it can continue its important work to protect migrant workers in Australia from workplace exploitation (26 April 2018). More...

Half a million calls from small business reveals strong demand for online support
The Fair Work Ombudsman has today launched its Small Business Showcase, a virtual hub providing a wealth of resources for small business owners seeking information about their workplace obligations (26 April 2018). More...

CFMMEU and seven officials penalised $522,000 for month-long work stoppages across Brisbane sites
The CFMMEU and seven of its officials have been penalised $522,000 by the Federal Court for month-long strikes and work stoppages at construction sites across six Brisbane sites in 2016 (24 April 2018). More...

Queensland electrical contractor faces legal action over alleged failure to pay compensation
A Queensland electrical contracting company is facing court for allegedly ignoring a Fair Work Commission order to compensate an employee who was unfairly dismissed (24 April 2018). More...

Helping older Australians into work
The Australian Government today announced the organisations that will help mature-age people looking for work or preparing for a new career path. Career Transition Assistance (CTA) program will help older workers become more competitive in their local labour market through tailored, intensive workshops to build on their transferable skills (23 April 2018). More...

Queensland Labour Hire Licensing Regulation Now In Force
Queensland's new Labour Hire Licensing Regulation 2018 (Qld) (SR 35 of 2018) is now in force, having fully commenced on 16 April 2018 (19 April 2018). More...

Australian Government urges Queensland Labor to protect apprentice jobs
The Australian Government is calling on the Queensland State Labor Government to work with it to protect apprentice jobs. In November last year the Federal Court upheld a decision by the Fair Work Commission which found some apprentices in Queensland may be owed back pay from 1 January 2014 (19 April 2018). More...

'Sham' Work for the Dole program slammed after teen's worksite death
The Work for the Dole program is a "sham", putting young job seekers in unsafe and potentially deadly situations, say unions, lawyers and the family of a teenager who was killed on a Queensland worksite two years ago (19 April 2018). More...

Legal action alleges underpayment of 457 visa workers
A regional Queensland company is facing Court for allegedly underpaying two Filipino 457 visa holders a total of almost $10,000 when it made them redundant (18 April 2018). More...

Swimland signs up to scrutiny after more than 1,300 staff underpaid $1.4 million
A swim school franchise network that underpaid its staff across a six-year period is required to implement extensive measures to ensure compliance with workplace laws, after signing up to an Enforceable Undertaking (EU) with the Fair Work Ombudsman (16 April 2018). More...

Set targets for men working part-time to help promote women, gender equality body says
The director of the Workplace Gender Equality Agency urges employers to set targets for men working part-time, saying the normalisation of flexible work environments will help the "promotion of women" (15 April 2018). More...

Hays Recruitment demonstrates commitment to workplace compliance through positive partnership with the FWO
A compliance partnership between Hays Specialist Recruitment (Australia) Pty Ltd and the Fair Work Ombudsman has shown the positive impact of close engagement between employers and the regulator in promoting harmonious and compliant workplaces (13 April 2018). More...

Fair Work Commission Releases Updated Anti-bullying Benchbook
The Fair Work Commission (FWC) has advised that has published an updated interactive online version of the Anti-bullying benchbook. According to the Media Release published by the FWC the benchbook contains plain English summaries of the key principles of workplace bullying case law and how these have been applied in FWC decisions (11 April 2018). More...

Hotspots to be audited as spotlight put on the workplace basics of 1,000 businesses
The Fair Work Ombudsman has begun auditing 1,000 businesses across Australia, as part of a new campaign to ensure employers have the basics right in their workplaces (11 April 2018). More...

More than $192,000 in penalties for former 7-Eleven operators who underpaid vulnerable workers
The Federal Circuit Court has imposed penalties totalling $192,961 against the operators of two Brisbane CBD 7-Eleven stores for short-changing workers by more than $31,000 (10 April 2018). More...

CFMEU and its site delegate to face court for forcing worker to pay union fees
A CFMEU site delegate, Peter D'Arcy, is facing allegations in the Federal Circuit Court that he forced a worker to join the union and pay union fees at a site in Toowoomba. It is alleged the CFMEU is liable for the delegate's conduct (09 April 2018). More...

Sydney café operator penalised for short-changing visa holder using cashback scheme
A Sydney café operator has been penalised more than $97,000 in the Federal Circuit Court after requiring an overseas worker to pay back thousands of dollars of her wages as part of a cashback scheme, following legal action by the Fair Work Ombudsman (09 April 2018). More...

Published reports articles, speeches

Workplace Relations-simplification for small business
Australian Small Business and Family Enterprise Ombudsman: 27 April 2018
This paper presents practical solutions to reduce complexity through non-legislative approaches, to make the system more accessible to smaller businesses. In addition, a small number of legislative changes are proposed, which should have general support and would further improve the system. More...

Monthly Leading Indicator of Employment April 2018
The Department of Jobs and Small Business' Monthly Leading Indicator of Employment (the Indicator) has risen in April 2018 for the eighth consecutive month. The April 2018 report is now available.

In practice and courts

FWC: Online Unfair dismissals benchbook
The Fair Work Commission today launched an interactive online version of our Unfair dismissals benchbook. This Unfair dismissals benchbook assists parties lodging or responding to unfair dismissal applications under the Fair Work Act 2009. It contains plain English summaries of the key principles of unfair dismissal case law, and examples of how these have been applied in Commission decisions (24 April 2018). More...

FWC: Anti-bullying benchbook updated – online version
The Fair Work Commission has published an updated interactive online version of our Anti-bullying benchbook. The benchbook contains plain English summaries of the key principles of workplace bullying case law and how these have been applied in Commission decisions. The new version of the Anti-bullying benchbook, incorporating recent updates, is designed to be read online and can be accessed on the Commission's website (09 April 2018).

Request for Tender for the Transition Services Panel 2018–2020
Applications are now open for the Request for Tender for the Transition Services Panel 2018–2020. (24 April 2018). More...

Request for Tender for ParentsNext 2018–2021 Outcomes
The Department of Jobs and Small Business has announced the outcomes of the Request for Tender for ParentsNext 2018–2021. A list of successful organisations is included as part of the Minister's media release (16 April 2018). More...

Jobactive achieves one million job placements
jobactive has reached the one million job placement milestone! To find out how jobactive can help you get a job or hire staff visit the jobactive website (13 April 2018).

Results from 2017 skill shortage research program
The Department of Jobs and Small Business has released results from its skill shortage research program, incorporating research undertaken in 2017. A range of documents have been updated with results from the second half of 2017, including the research program's skill shortage lists and reports on occupations and occupational clusters (03 April 2018). More...

Small Business Showcase - Resources to help you find your way in the workplace
No matter what stage your business is at, we'll help you understand workplace rights and obligations. There is also a small business checklist and information to keep businesses up to date with their workplace relations obligations (26 April 2018). www.fairwork.gov.au/smallbizshowcase

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.

QLS: New labour hire licensing regulations
The Labour Hire Licensing Act 2017 and the accompanying Regulation commenced on 16 April 2018. Existing providers have until 15 June to apply for a licence while new businesses must obtain a licence before commencing operation. More...

Note: The regulation amends Division 3 Work health and safety and workers compensation obligations - 7 Information about work health and safety and workers compensation obligations—Act, s13.

Cases

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Case) (No 3) [2018] FCA 564
INDUSTRIAL LAW – alleged contraventions of s417 of the Fair Work Act 2009 (Cth) – stop work meetings – where the enterprise agreement contained a union meeting clause – proper construction of union meeting clause – meaning of "industrial action" under s19(1) of the Fair Work Act 2009 (Cth) – whether otherwise unlawful conduct can be authorised within the meaning of s19(2)(a) – whether authorised conduct is "industrial action" for the purposes of Pt 3-3 of the Fair Work Act 2009 (Cth) – relevance and operation of s194(e) of the Fair Work Act 2009 (Cth).
INDUSTRIAL LAW – where the respondent union instigated a campaign against the principal contractor across numerous sites – stop work meetings and strike action – admitted contraventions of ss346(b), 355 and 417 of the Fair Work Act 2009 (Cth) – appropriate penalties – application of s556 of the Fair Work Act 2009 (Cth) – general and specific deterrence – prior contraventions and similar previous conduct – contrition and cooperation – application of the totality principle under s557 of the Fair Work Act 2009 (Cth). Penalties awarded.

Fair Work Ombudsman v JPA Manchester Pty Ltd & Anor [2018] FCCA 845
INDUSTRIAL LAW – Penalty – contraventions of the General Retail Industry Award 2010 relating to remuneration – failure to comply with record keeping obligations under the Fair Work Act 2009 (Cth) – appropriate penalty to be imposed – relevant considerations – applicable penalty of each contravention.
Crimes Act 1914 (Cth), s.4AA; Fair Work Act 2009 (Cth), ss.3, 44, 45, 90, 535, 536, 539, 546, 550, 557, 715.

Zehnder v Sell Lease Property Pty Ltd t/as Sell Lease Property & Ors (No.2) [2018] FCCA 815
INDUSTRIAL LAW – Alleged contravention of general protections – alleged breaches of Fair Work Act 2009 (Cth) – National Employment Standards – alleged breach of Real Estate Industry Award 2010 (WA) – whether constructive dismissal – accessorial liability – alleged breach of contract.
Code of Conduct for Agents and Sales Representatives 2011 (WA), r.8(2) & (3); Fair Work Act 2009 (Cth), ss.44, 45, 90(2), 119, 125, 234, 323, 324, 325, 326, 340, 341, 342, 386, 394, 361, 550, 570, 789C.

Ramsay v Menso [2018] FCAFC 55
INDUSTRIAL LAW – alleged breaches of ss.501 and 502 of the Fair Work Act 2009 (Cth) – where the appellants suspected contraventions of the Workplace Health and Safety Act 2011 (Qld) and sought to enter the site – where the respondents refused entry – consideration of the requirements for a notice of entry under ss.117 and 119 of the Workplace Health and Safety Act 2011 (Qld) – whether a notice of entry must be completed prior to entry – whether failure to include the permit holders' middle names invalidates a notice of entry and vitiates a right of entry.

Fatouros v Broadreach Services Pty Ltd [2018] FCCA 769
INDUSTRIAL LAW – Workplace right – complaint or enquiry in relation to his or her employee – complaint made regarding proper management of projects which the applicant was required to oversee – compensation for breach of a civil remedy provision – civil penalty. Fair Work Act 2009 (Cth), ss.340, 341, 341(1)(c)(ii), 342, 545, 546.

Fair Work Ombudsman v Viplus Pty Ltd & Anor [2018] FCCA 741
INDUSTRIAL LAW – Compensation and penalties – appropriate penalty to be imposed – multiple contraventions of Fair Work Act 2009 (Cth) – whether multiple contraventions should be grouped and treated as a single contravention – whether contraventions arose out of a single course of conduct – application of totality principle.

Petrus Paulus Hendrikus Johannes Janssen v South Western Sydney Local Health District [2018] NSWIRComm 1022
Victimisation application - applicant alleged he was victimised by the respondent because he made complaints about workplace matters – suspension during investigation constitutes detrimental action - evidence of decision-maker about reason for suspension – assessment of risks of remaining in workplace – s.210(2) presumption rebutted – complaints not a substantial and operative reason - application dismissed.

The FWC Bulletin
This weekly update lists current FWC decisions:
Volume 16/18 26 April 2018

Volume 15/18 19 April 2018

Volume 14/18 12 April 2018

Volume 13/18 5 April 2018

Legislation

Queensland

Subordinate legislation as made
SL No 35: Labour Hire Licensing Regulation 2018 - 06/04/2018
Division 3 Work health and safety and workers compensation obligations - 7 Information about work health and safety and workers compensation obligations—Act , s.13.

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