Australia: Workplace Relations Monthly Update - June 2018

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

Most Read Contributor in Australia, October 2018

In the media

New minimum wage takes effect from 1 July
The Fair Work Commission issued the Annual Wage Review decision on 1 June 2018, lifting the national minimum wage and award minimum wages by 3.5 per cent. For about 200,000 workers who are paid the national minimum wage, base wages will increase from $18.29 an hour or $694.90 per 38-hour week to $18.93 an hour or $719.20 per week. A summary of the decision is available on the Commission's website. The increase will take effect from the first full pay period on or after 1 July 2018. 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. The Fair Work Commission has also published fact sheets for some modern awards. More... (Media) More...

Appointment of new Fair Work Ombudsman
The Australian Government has today announced the appointment of Sandra Parker PSM as the Fair Work Ombudsman for a five-year term, commencing on 15 July 2018 (22 June 2018). More...

The Gig Economy: Navigating new ways to work
Opinion piece on the Gig Economy by Natalie James, Fair Work Ombudsman (20 June 2018). More...

Fair Work Ombudsman commences legal proceedings against Foodora
In a recent Media Release from the Fair Work Ombudsman (the FWO), it was announced that legal proceedings against food delivery company Foodora Australia Pty Ltd (Foodora) have commenced in the Federal Court of Australia (NSW Registry). The FWO alleges that the company has engaged in sham contracting activity that resulted in the underpayment of workers (18 June 2018). More... (Media) More...

Fair Work Ombudsman to work with local councils to improve management of security supply chains
The Fair Work Ombudsman has today released the findings of its Inquiry into the procurement of security services by local government, highlighting an opportunity for councils to work with the regulator to improve supply chain governance effort (25 June 2018). More...

'Reasonable steps' to promote compliance essential for franchisors to avoid liability and brand damage, says FWO
With recent laws changes setting clear expectations that franchisors need to consider how to prevent exploitation of workers, the Fair Work Ombudsman has launched a new resource providing practical advice to assist franchisors to promote sustained workplace compliance in their networks (14 June 2018). More...

Almost $100k in penalties after Caltex franchisee falsified wage records
Penalties of almost $100,000 against a former Caltex franchisee in Sydney for falsifying wage records send a message that serious consequences apply when fabricated records frustrate investigations, according to Fair Work Ombudsman Natalie James (28 June 2018). More...

$216,700 in penalties after Pizza Hut franchisee engages in sham contracting
A Pizza Hut franchisee on the Gold Coast has been penalised a total of $216,700 after exploiting an Indian delivery driver under a sham contract and using false records to try to cover it up (15 June 2018). More...

$900k in underpayments, discrimination & coercion alleged in new action against massage parlour
The Fair Work Ombudsman has commenced civil legal proceedings against the former operators of a Canberra massage parlour, alleging they exploited seven Filipino workers, underpaying them a total of more than $900,000 and threatening to have their families in the Philippines killed if they complained to the department responsible for immigration (29 June 2018). More...

Migrant workers allegedly paid no wages for a year's work under 'work experience' scheme
The Fair Work Ombudsman has commenced legal action against a Sydney childcare operator that allegedly failed to pay two migrant workers any wages for a year of work under the guise of an 'unpaid work experience' scheme (08 June 2018). More...

Fair Work Ombudsman releases results of Darwin and Adelaide audits
The Fair Work Ombudsman's proactive compliance and education campaign in Darwin has found that 54 per cent of audited businesses were non-compliant with their workplace obligations (08 June 2018). More...
Separately, a Fair Work Ombudsman audit of 125 businesses across the Adelaide CBD and surrounding suburbs have found 45 per cent to be non-compliant with workplace laws (06 June 2018). More...

Four insights to improve culture in government workplaces
There are common mistakes government professionals make when handling conflict, complaints and poor culture, but there are clear ways to avoid them (26 June 2018). More...

CFMMEU officials facing court for allegedly stopping crane on Devonport construction site
The ABCC has commenced proceedings in the Federal Court against the CFMMEU and two of its officials for allegedly contravening right of entry laws at the Living City Project in Devonport, Tasmania (27 June 2018). More...

Landmark ruling: CFMMEU official to feel sting of penalties for breaking the law; union penalty almost doubled
In a significant decision today the Full Federal Court confirmed it will order a CFMMEU official to personally pay his penalty for breaking the law, without seeking or receiving financial assistance from the union (25 June 2018). More...

Federal Court: CFMMEU senior leadership condoned lawbreaking; $142,000 penalty imposed
The Federal Court has imposed total penalties of $142,000 on the CFMMEU and three of its officials for taking coercive action at a Carlton building site in March 2015 on the basis that senior CFMMEU leadership condoned the contravening conduct (22 June 2018). More...

CFMMEU penalised for unlawful industrial action
Legal action by the Fair Work Ombudsman has resulted in the Construction Forestry Maritime Mining and Energy Union (CFMMEU) being penalised in Court for organising unlawful industrial action at shipping terminals in Sydney and Brisbane (21 June 2018). More...

Court penalises CFMMEU and official for threatening and abusing workers
The Federal Court has penalised the CFMMEU and its official Bradley Upton $51,300 for abusing and threatening construction workers on the Gorgon LNG Project in Western Australia (14 June 2018). More...

Published reports articles, speeches

Power to the people: how stronger unions can deliver economic justice
Joe Dromey; IPPR Commission on Economic Justice: 10 June 2018
This paper shows why trade unions and collective bargaining are good for workers and good for the economy. It shows how the decline of the union movement has contributed to a growing power imbalance in the economy and to soaring inequality. More...

Monthly Leading Indicator of Employment June 2018
The Department of Jobs and Small Business' Monthly Leading Indicator of Employment has remained stable for the third consecutive month in June 2018, after rising for seven consecutive months. In June 2018, subtractions from the US Yield Difference and the Consumer Sentiment Index were balanced by contributions from the Purchasing Managers' Index for Manufacturing Output in China and the Leading Index of Economic Activity. More...

In practice and courts

2018 Annual Wage Review – Fair Work Ombudsman pay tools are ready
The Fair Work Ombudsman 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...

July 1 legal changes your business needs to know about
Updates to the minimum wage, penalty rates, Single Touch Payroll, the unfair dismissal threshold and superannuation are some of the key changes taking effect from 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 draft legislation will strengthen and improve enforcement and recovery options of unpaid employee entitlements to deter misuse of the FEG scheme. This will also ensure the burden on the scheme is relieved so that it remains sustainable (12 June 2018). More...
The proposed laws follow extensive public consultation undertaken in 2017. Interested parties can submit responses to this consultation up until 9 July 2018 (12 June 2018). More...

Cases

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union ("Cardigan St Case") [2018] FCA 957
INDUSTRIAL LAW – admitted contraventions of s.355 and s.348 of the Fair Work Act 2009 (Cth) – making of declarations – principles relating to imposition of agreed pecuniary penalties – relevance of previous contraventions of industrial legislation by registered organisation to the penalty to be imposed upon an individual respondent employed by that organisation – relevance of previous contraventions of industrial legislation by a different branch or division of a registered organisation – whether senior officials of a registered organisation involved in contravening conduct – proportionality of penalty to contravening conduct – whether co-operation justify any mitigation – general deterrence – specific deterrence – absence of contrition – principle of totality – whether a single course or multiple courses of conduct. Fair Work Act 2009 (Cth), ss.355 and 348.

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97
INDUSTRIAL LAW – contraventions of s.348 of Fair Work 2009 (Cth) – blockade of work site and threats made by union official – re-sentencing – appropriate pecuniary penalties for contraventions by union and union official.
INDUSTRIAL LAW – personal payment order under s.546 of Fair Work Act 2009 (Cth) – whether appropriate to make personal payment order – scope of personal payment order that is appropriate in the circumstances.

Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCA 934
INDUSTRIAL LAW – meaning of s.557(3) of the Fair Work Act 2009 (Cth) – penalty for unlawful industrial action – no compensation under s.545(1) appropriate – conduct of employer and purpose of industrial action relevant to penalty and compensation – whether employer wants compensation relevant to whether a compensation order should be made – Building and Construction Industry Improvement Act 2005 (Cth) s.69. The respondent pays a pecuniary penalty of $38,000 in respect of its contravention of s.417(1) of the Fair Work Act.

Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) (No 2) [2018] FCA 897
INDUSTRIAL LAW – where declarations made that respondents contravened sections 346(a), 348 and 500 of the Fair Work Act 2009 (Cth) – appropriate pecuniary penalties – where only one penalty imposed in respect of the three civil penalty provisions pursuant to s.556 – where the lead contravention is intent to coerce in breach of s.348 – where penalties should reflect both specific and general deterrence – where the first respondent's contraventions were deliberate and no contrition shown – penalty of 75% of the maximum imposed on first respondent – contravention record of second respondent regarded – where second respondent must do more to ensure its officials meet standards of the Act – penalty of 80% of maximum imposed on second respondent.

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) [2018] FCAFC 88
INDUSTRIAL LAW – appeal from a judgment of the Federal Court of Australia – where the primary judge found that two officials of the Construction, Forestry, Mining and Energy Union, who held permits under the Fair Work Act 2009 (Cth), had not contravened ss.500 and 340 of that Act – where the permit holders made five entries to the relevant premises – where those permit holders did not provide notice of those entries as required by s.487 – where, once they had entered, they did not produce their permits upon request as required by s.489 – where the primary judge held that, because no notice had been given and no permits had been produced upon request, they were not exercising, or seeking to exercise, rights in accordance with Part 3-4 of the Fair Work Act 2009 (Cth) and so s.500 was not engaged – where the primary judge held that s.340 had not been contravened because the request for the production of a permit under s.489 did not involve a "workplace right" as defined by s.341 – whether the primary judge erred in failing to find contraventions of ss.500 and 340.
INDUSTRIAL LAW – where the respondents cross-appealed from the same judgment – whether the primary judge erred by finding, for reasons of comity, that a bare failure by a permit holder to give notice under s.487 or to produce a permit under s 489 constitutes acting in an "improper manner" for the purpose of s.500 – whether the primary judge erred by failing to hold that s.500 could not be contravened without a finding of some prejudice to the site occupier's ability to conduct its business as usual – whether the primary judge erred by failing to dismiss the alleged contraventions of s.500 in circumstances where he had found that the Commissioner's pleadings were confined to allegations of bare contraventions of ss.487 and 489 – whether the primary judge erred in holding that the Commissioner's pleadings were so confined – whether the primary judge erred by finding that, had s.361(1) of the Fair Work Act 2009 (Cth) been engaged for the purposes of s.340, the third respondent would not have discharged his onus to prove that he had not acted for a proscribed purpose.
STATUTORY INTERPRETATION – meaning of "exercising, or seeking to exercise, rights in accordance with this Part" in s.500 of the Fair Work Act 2009 (Cth) – whether a permit holder who refuses or fails to comply with s.487 or s.498 could be found to be exercising or seeking to exercise a right in accordance with Part 3-4 of the Fair Work Act 2009 (Cth) – whether "in accordance with" means "in conformity with" or "covered by".
STATUTORY INTERPRETATION – meaning of "otherwise act in an improper manner" in s.500 of the Fair Work Act 2009 (Cth) – whether a bare failure to comply with s.487 or s.489 constitutes acting in an improper manner.
STATUTORY INTERPRETATION – meaning of "workplace right" in s.341(1) of the Fair Work Act 2009 (Cth) – whether the ability of an occupier to request the production of authority documents under s.489 constitutes an entitlement to the benefit of, or a role or responsibility under, a workplace law for the purposes of s.341(1)(a) – whether a request for authority documents constitutes initiation of, or participation in, a process or proceeding under a workplace law for the purposes of s.341(1)(b). Building and Construction Industry Improvement Act 2005 (Cth) ss.36(1), 36(1)(b).

Registered Organisations Commissioner v Mijatov [2018] FCA 939
INDUSTRIAL LAW – penalty dispute arising from conceded liability for contraventions of care and diligence duties in relation to financial management of union under s.285(1) of Fair Work (Registered Organisations) Act 2009 (Cth) – failure to prepare and table budgets – agreed payment of back pay but disagreement as to entitlement – value of general deterrence for financial management contraventions – whether applicant discharged onus of showing failure of respondent to take necessary care in obtaining back payment and that resulting in payment without entitlement – whether any mitigating circumstances – held: onus discharged by applicant but seriousness of offence lessened by mitigating circumstances – held: penalties ordered totalling $2,000.

Quirk v CFMEU and Miller v CFMEU (No.3) [2018] FCCA 1455
INDUSTRIAL LAW – alleged breaches of the Fair Work Act 2009 (Cth) – dismissal from employment in contravention of general protections.
COSTS – Application for costs pursuant to s.570 of the Fair Work Act 2009 (Cth) in relation to unsuccessful Application in a Case for transfer to the Federal Court of Australia – meaning of the term proceeding – whether the proceedings were instituted without reasonable cause – whether the proceedings were instituted vexatiously – whether indemnity costs – costs orders made – application for costs pursuant to s.570 of the Fair Work Act 2009 (Cth) in relation to unsuccessful application for summary dismissal – whether the respondents engaged in an unreasonable act or omission – costs orders made.

Fair Work Ombudsman v Photoplus Australia Pty Ltd & Anor [2018] FCCA 1154
INDUSTRIAL LAW – assessment of penalties for admitted contraventions of the Fair Work Act and applicable Award – Statement of Agreed Facts – parties in substantial agreement as to outcome – penalties imposed at 80 per cent of range agreed by the parties.

Fair Work Ombudsman v Choi Brothers Pty Ltd & Anor [2018] FCCA 1155
INDUSTRIAL LAW – assessment of penalties for admitted contraventions of the Fair Work Act and applicable Award – Statement of Agreed Facts – parties in substantial agreement as to outcome – penalties imposed at 80 per cent of range agreed by the parties.

Fair Work Ombudsman v Deja Vu Elite Security Pty Ltd & Anor [2018] FCCA 1402
INDUSTRIAL LAW – alleged contraventions of Fair Work Act 2009 and Fair Work Regulations 2009 – some contraventions admitted – some alleged contraventions disputed – hearing on liability in respect of disputed contraventions – contraventions found proven.

Legislation

Commonwealth

Legislative Instruments

Fair Work (State Declarations — employer not to be national system employer) Endorsement 2018 (No. 1)
29 June 2018 - This instrument endorses a declaration by the New South Wales Minister for Industrial Relations that certain named Joint Organisations are not national system employers for the purposes of the Fair Work Act 2009.

Bills

Modern Slavery Bill 2018
House of Representatives Second reading moved 28 June 2018
The Modern Slavery Bill 2018 will establish a Modern Slavery Reporting Requirement. This will require certain large businesses and other entities in Australia to make annual public reports (Modern Slavery Statements) on their actions to address modern slavery risks in their operations and supply chains.

Fair Work Amendment (A Living Wage) Bill 2018
Introduced in the House of Representatives on 25 June 2018.
The Bill amends the Fair Work Act 2009 to lift the national minimum wage to a living wage of 60% of the median full-time weekly wage (as determined by the Australian Bureau of Statistics).

Fair Work Amendment (Restoring Penalty Rates) Bill 2018
Introduced to the House of Representatives 25 June 2018.
Second reading moved 25 June 2018 - The Fair Work Amendment (Restoring Penalty Rates) Bill 2018 will ensure that modern awards cannot be varied to reduce the take-home pay of an employee. This includes any reduction in take-home pay as a result of a reduction in penalty rates or the hours to which penalty rates apply.

Victoria

Labour Hire Licensing Act 2018
Date of assent: 26 June 2018; Act Number: 25/2018
Workplace law means the following— (a) a provision of a law of Victoria, the Commonwealth, another State or a Territory that imposes an obligation on a person in relation to employees or contractors (however described), including but not limited to, the following — (ix) the Construction Industry Long Service Leave Act 1997.

Victorian legislation is available at www.legislation.vic.gov.au.

New South Wales

Proclamations commencing Acts

Teaching and Education Legislation Amendment (Employment) Act 2018 No 3
(2018-258) — published LW 14 June 2018.

Bills passed by both Houses of Parliament and assented to

Modern Slavery Bill 2018 No 30 — Assented to 27 June 2018

For the full text of Bills, and details on the passage of Bills, see Bills.

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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