Australia: Workplace Relations Monthly Update - May 2018

Last Updated: 21 June 2018
Article by Stephen Trew, Michael Selinger, Charles Power, Benjamin Marshall and Rachel Drew

Most Read Contributor in Australia, September 2018

In the media

Penalty against MCG head contractor over underpayments a "wake-up call"
A surprise night-time visit to the MCG by Fair Work Ombudsman inspectors to investigate exploitation of overseas workers in the venue's supply-chain for cleaning staff has led to a $132,217 penalty against the Australian arm of a global cleaning company (29 May 2018). More...

First claim of unlawful picketing filed in Court over alleged CFMMEU blockade in Melbourne
The ABCC has commenced the first case alleging contraventions of the new unlawful picketing provisions against the CFMMEU and three of its representatives for an alleged blockade of two Melbourne sites in May 2017. The ABCC alleges that on 8 May 2017, CFMMEU representatives John Perkovic, Kane Pearson and Mario Raspudic blocked access to the NewCold1 and NewCold2 sites, preventing office staff, subcontractors and workers from entering or leaving the site (29 May 2018). More...

CFMMEU officials to face court for alleged right of entry breaches
Two CFMMEU officials are facing allegations in the Federal Court that they breached right of entry laws at the $222 million Monash Freeway upgrade project in 2017. In the Federal Court, the ABCC alleges CFMMEU officials James Simpson and Peter Clark acted in an improper manner when exercising right of entry on four separate occasions on 29 and 30 April, and on 4 and 9 May 2017 (28 May 2018). More...

More than $200k in penalties in FWO's first racial discrimination case
The Fair Work Ombudsman's first racial discrimination litigation has resulted in penalties of $211,104 against the former operators of a Tasmanian hotel after they deliberately exploited two Malaysian employees of Chinese descent (28 May 2018). More...

CFMEU and MUA amalgamation does NOT impact validity of CFMEU or MUA right of entry permits under the Fair Work Act
On Tuesday 27 March 2018, the Construction, Forestry, Mining and Energy Union (CFMEU), Maritime Union of Australia (MUA), and Textile, Clothing and Footwear Union of Australia (TCFUA) amalgamated. The new organisation is called the Construction, Forestry, Maritime, Mining and Energy Union (24 May 2018). More...

TWU and Coles bury hatchet with MOU
Now, under a memorandum of understanding (MOU), Coles and the TWU have signed two statements of principles — on "safety and fairness for transport workers in the Coles supply chain" and for "on demand workers". The first statement includes five principles to ensure safety and fairness for transport workers within the Coles supply chain (24 May 2018). More...

200 regional NSW businesses being audited by the Fair Work Ombudsman in New England and North West
The Fair Work Ombudsman has commenced audits of more than 200 businesses across the New England and North West regions of NSW, as part of its latest campaign checking businesses' compliance with workplace laws (24 May 2018). More...

$118,000 in penalties after NSW roadhouse operator "well and truly caught out by FWO"
The Fair Work Ombudsman has secured $118,440 in penalties in Court after a NSW roadhouse manager tried to deprive an Indian employee of her Government-funded parental leave pay by falsely claiming he provided the pay to the employee's husband (23 May 2018). More...

Labour hire firm suspended amid claims workers suffered 'bleeding episodes'
The National Union of Workers says workers from Vanuatu were paid as little as $8 an hour and experienced "bleeding episodes" after breathing in chemicals on a farm in Victoria (23 May 2018). More...

Jail term imposed in Fair Work Ombudsman's first contempt of court case
A Northern Queensland business operator has been jailed – and then released pending the outcome of his appeal – as a result of the Fair Work Ombudsman's first contempt-of-court action (14 May 2018). More...

Superannuation Guarantee Amnesty
On 24 May 2018, Minister for Revenue and Financial Services announced the commencement of a 12 month Superannuation Guarantee Amnesty (the Amnesty). The Amnesty is a one-off opportunity for employers to self-correct past super guarantee (SG) non-compliance without penalty (29 May 2018). More...

In Practice and Courts

ABCC Industry Update April - May 2018
This issue covers Court summary: finalised matters; Court summary – new matters; High Court rules in favour of ABCC on personal payment orders; Interlocutory Injunction granted against CFMMEU and seven union officials at $900 million site; Advice and assistance on Building Code compliance and Code facts; Are you being paid correctly? More...

Cases

Casenote: Unfair Dismissal Case: Whether a Genuine Redundancy
In Cardy, Tamica v Local Trades Specialists Group Pty Ltd [2018] FWC 2034, handed down on 30 April 2018, Deputy President Beaumont criticised the practices of Local Trades Specialists Group Pty Ltd, trading as Local Trades (Local Trades).

Fair Work Ombudsman v Yenida Pty Ltd & Anor [2018] FCCA 1342
INDUSTRIAL LAW – Contraventions of the Fair Work Act 2009 (Cth) – contraventions of the Fair Work (Transitional Provision and Consequential Amendments) Act 2009 – underpayment of entitlements – adverse action –injury – discrimination – because of race – because of national extraction –considerations of matters relevant to penalty.
(1) Pursuant to s.546(1) of the FW Act, penalties of $176,005 be imposed against the First Respondent.
(2) Pursuant to s.546(1) of the FW Act, penalties of $35,099 be imposed against the Second Respondent.

One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77
INDUSTRIAL LAW — enterprise agreements — where labour hire company hired three employees and the three employees voted to approve an enterprise agreement applying to employees and prospective employees covered by 11 modern awards — where employer declared it had explained to the employees the terms of the agreement and their effect but there was no evidence of the content of the explanation — where Fair Work Commission approved agreement and primary judge declared approval to be void and of no effect, whether primary judge erred in holding that there was no agreement susceptible of approval — whether compliance with s.180(5) of the Fair Work Act 2009 (Cth) is a jurisdictional fact — whether primary judge erred in holding in the alternative that the Commission's satisfaction was affected by jurisdictional error — purpose of s.180(5) — scope of s.188(c) — whether Commission's decision also affected by jurisdictional error because it failed to take into account certain considerations in achieving satisfaction that agreement passed the "better off overall test" under s.193 or because there was no reasonable basis upon which it could have been satisfied.

Construction, Forestry, Maritime, Mining and Energy Union v BGC POS Pty Ltd & Anor [2018] FCCA 1270
INDUSTRIAL LAW – Right of entry – alleged contraventions of s.502 of the Fair Work Act 2009 (Cth) – hindering or obstructing – whether parties attempted to reach agreement – respondents' conduct – whether failure to include the permit holders' middle name invalidates a notice of entry and vitiates a right of entry – contraventions established.

Fair Work Ombudsman v First Group Of Companies Pty Ltd (Deregistered) & Ors [2018] FCCA 1228
INDUSTRIAL LAW – Pecuniary penalties to be imposed on second, third and fourth respondents pursuant to s.546(1) of the Fair Work Act 2009 (Cth) (the Act) – first respondent contravened provisions of the Act and the Cleaning Services Award 2010 (the Award) – first respondent has been deregistered – second and third respondents were at all material times directors of the first respondent and have admitted involvement in various contraventions pursuant to s.550(1) of the Act – fourth respondent is a contractor providing cleaning services at the Melbourne Cricket Ground (the MCG) after Australian Football League matches pursuant to contract with the Melbourne Cricket Club – first respondent supplied labour to the fourth respondent to perform cleaning services at the MCG pursuant to a contract with the fourth respondent – fourth respondent admitted involvement in various contraventions arising from underpayment of monetary amounts under the Award pursuant to s.550(1) of the Act – consideration of approach and matters relevant to imposition of pecuniary penalties – consideration of responsibilities of contractor in supply chain when engaging subcontractors to perform services – penalties imposed.
Crimes Act 1914 (Cth), s.4AA; Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012 (Cth), sch.3 item 7; Evidence Act 1995 (Cth), s.191; Fair Work Act 2009 (Cth), ss.12, 45, 323(1)(c), 340, 342, 357(1), 536(1), 539(2), 546, 550(1), 557, pt.3-1; Workplace Relations Act 1996 (Cth), s.719(2).

Aerocare Flight Support Pty Ltd v Transport Workers' Union of Australia [2018] FCAFC 74
INDUSTRIAL LAW – ss.186(3) and 186(3A) of the Fair Work Act 2009 (Cth) (FW Act) – judicial review of decision by Fair Work Commission (Commissioner) and appeal decision of the Full Bench of the Fair Work Commission (Full Bench) – disapproval of an enterprise agreement – non-satisfaction that employees were "fairly chosen".
ADMINISTRATIVE LAW – jurisdictional error – whether the Commissioner misconstrued s.186(3A) of the FW Act – whether the Commissioner was bound to find that workers under agreement were "organisationally distinct" because the agreement excluded casual employees, even though their work was of the same nature – whether Commissioner failed to regard relevant considerations and material and regarded irrelevant considerations in deciding whether the group of employees was "fairly chosen" – purpose of s.186(3) – no evidence or no available inference ground of review – no jurisdictional error – unnecessary to consider the reasons given by the Full Bench – Commissioner's decision founded on two independent bases – no basis to quash the decision where only one basis challenged – appeal dismissed. Fair Work Act 2009 (Cth) ss.171, 186.

Fair Work Ombudsman v G.Q. Industries Pty Ltd & Anor [2018] FCCA 1237
INDUSTRIAL LAW – Adverse action – admissions made in statement of agreed facts – contrary to evidence – application for withdrawal of admissions – application granted.
Fair Work Act 2009 (Cth), ss.340(1)(a)(ii), 550.

Degenhardt v Ambulance Victoria (No.3) [2018] FCCA 1113
INDUSTRIAL LAW – Former employee suing to recover unpaid entitlements – multiple awards applicable over the course of former employee's employment.
INDUSTRIAL LAW – "On-call" – casual employee – principles of construction of award and of contract of employment – whether former employee entitled to casual loading – whether former employee entitled to penalty rates.
COMPENSATION – Assessment of applicant's evidence.
EXPERT EVIDENCE – Alleged expert not an expert – Dasreef Pty Ltd v Hawchar considerations – applicant claiming almost $800,000 – no sufficient profits – applicant awarded $154,841.
Evidence Act 1995; Fair Work Act 2009 (Cth); Limitation of Actions Act 1958 (Vic).

Fair Work Ombudsman v Rum Runner Trading Pty Ltd & Anor [2018] FCCA 1129
INDUSTRIAL LAW – Breaches of civil remedy provisions of the Fair Work Act 2009 (Cth) (the Act) – two proceedings initiated by applicant for the imposition of pecuniary penalties on respondents – each proceeding involved different employees – two statements of agreed facts made by the parties – admitted numerous contraventions of the Act and Fair Work Regulations 2009 (Cth) (the Regulations) – relevant considerations – separate declarations made regarding admitted contraventions in each proceeding – separate orders made for imposition of pecuniary penalties in each proceeding – orders made in second proceeding for the purpose of securing future compliance by the respondents with the Act and the Regulations requiring respondents to take action and restraining respondents from engaging in contravening conduct – penalties imposed.
Crimes Act 1914 (Cth), s.4AA; Crimes Legislation Amendment (Penalty Unit) Act 2015 (Cth), sch.1 item 2.
Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012 (Cth), sch.3 item 7.
Fair Work Act 2009 (Cth), ss.3(b), 12, 44, 45, 125(1), 535(1), 536(1), 539(2), 545, 546, 547(2), 550, 557, 559, 712, 716; Fair Work Regulations 2009 (Cth), regs.3.33, 3.44, 4.01A, 4.03A, ch.3 pt.3-6 div.3 sub-div.1.

The FWC Bulletin
This weekly update lists current FWC decisions:
Volume 20/18 (24 May 2018)
Volume 19/18 (17 May 2018)
Volume 18/18 (10 May 2018)
Volume 17/18 (3 May 2018)

Legislation

Commonwealth
Bills

Fair Work Amendment (Making Australia More Equal) Bill 2018
HR Second reading 21 May 2018 - The Bill amends the Fair Work Act 2009 to permit the Fair Work Commission (FWC) to issue a Minimum Entitlements Order which would extend certain provisions of the Fair Work Act 2009, modern award or enterprise agreement to workers.

Act Compilation

Paid Parental Leave Act 2010
Act No. 104 of 2010 – 23 May 2018.

Legislative Instruments

Reporting guidelines for the purposes of section 253 - fifth edition
This instrument outlines reporting guidelines issued under subsection 255(1) of the Fair Work (Registered Organisations) Act 2009 for the purpose of section 253 of that Act (8 May 2018).

Reporting guidelines for the purposes of section 270
This instrument outlines reporting guidelines issued under subsection 255(1) of the Fair Work (Registered Organisations) Act 2009 for the purpose of section 270 of that Act (8 May 2018).

Victoria
Acts Assented To

No. 12 Long Service Leave Act 2018
Assent: 15/05/2018 SG (No. 217) 15/5/2018 p. 1 Commencement: NYP Not yet in operation: ss.1-62
In particular, the Act aims at making leave requirements fairer to those people whose working requirements change during their working life, such as carers and working women who take a carer break to look after their children.
Victorian legislation can be accessed 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.

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