Australia: Workplace Relations Monthly Update - July 2018

Last Updated: 9 August 2018
Article by Stephen Trew, Michael Selinger, Charles Power, Benjamin Marshall and Rachel Drew

Most Read Contributor in Australia, July 2018

In the media

Cleaning operator taken to Court
The Fair Work Ombudsman has commenced legal action against a Gosford cleaning operator, alleging he failed to comply with a Compliance Notice that required him to back-pay two workers a total of $3195 (30 July 2018). More...

$31,000 penalty for underpaying visa workers
The Fair Work Ombudsman has secured $31,590 in penalties against Rockhampton-based business Alertvale Pty Ltd that underpaid two Filipino visa holders $9,931 when it made them redundant. The company operates businesses providing services in the mining and heavy industry sector in regional Queensland (30 July 2018). More...

CFMMEU and officials fined $137,590 for cavalier and reprehensible attitude
The Federal Court has imposed penalties totaling $137,590 against the CFMMEU and three of its officials for unlawfully entering an Adelaide worksite on four occasions between April and July 2014 (27 July 2018). More...

Gold Coast security operator penalised $115,668
The Fair Work Ombudsman has secured a $115,668 penalty against Gold Coast security company owner Adam Marcinkowski after he admitted taking unlawful adverse action against a guard by dismissing him. He also underpaid three other guards a total of $15,938 between April 2015 and June 2016 (24 July 2018). More...

FWO acts on EU non-compliance
The Fair Work Ombudsman has commenced legal action to force Pristine Employment Solutions Pty Ltd to comply with terms of an Enforceable Undertaking (EU) that was executed in May 2017 (20 July 2018). More...

Slavery in supply chains set to spiral over next two decades
Drastic job losses in South East Asia resulting from the onset of robot manufacturing are predicted to produce a spike in slavery and labour abuses in global supply chains unless governments take early measures to prevent automation threating millions of livelihoods, states a new report by Verisk Maplecroft (16 July 2018). More...

New Anti-Slavery Bill Introduced to Federal Parliament
On 28 June 2018, the Modern Slavery Bill 2018 (the "Bill") was introduced to the House of Representatives by the Hon Alex Hawke MP (Assistant Minister for Home Affairs), where on the same day, it was referred to the Senate Legal and Constitutional Affairs Legislation Committee (13 July 2018). More...

AHRC: Modern slavery 'hidden in plain sight'
The Federal Government's proposed Modern Slavery Bill 2018 would require mandatory annual reporting by large businesses and organisations on the risks of modern slavery in their supply chains and operations. The Bill would also require the Federal Government to publish an annual statement covering possible modern slavery risks in Commonwealth procurement (03 July 2018). More...

Bulk carrier banned for underpaying crew
The Australian Maritime Safety Authority (AMSA) has banned the Hong Kong-flagged bulk carrier MV Shandong Hai Wang for 12 months after it was discovered that crew had been deliberately underpaid (12 July 2018). More...

Three legal actions against remorseless trolley collecting operator result in $130,000 in penalties
The Fair Work Ombudsman has secured more than $130,000 in penalties against a Victorian trolley collecting operator, who caused "financial and emotional hardship" to three workers by sacking them and refusing to pay unfair dismissal compensation (13 July 2018). More...

Building a culture of compliance in the restaurant sector through partnership between FWO and La Porchetta
A Compliance Partnership between La Porchetta Franchising Pty Ltd (La Porchetta) and the Fair Work Ombudsman (FWO) has demonstrated the effectiveness of close engagement with the regulator in promoting a culture of compliance throughout a franchise network (06 July 2018). More...

Foodora rider alleges unfair dismissal for talking about pay and rights
A former food delivery rider who is claiming unfair dismissal at the Fair Work Commission says he is fighting for change in the gig economy, in what is believed to be the first case of its kind in Australia (03 July 2018). More...

Career Transition Assistance for older workers
Mature-age people will now benefit from increased employment opportunities through the Turnbull Government's Career Transition Assistance (CTA) program trial (02 July 2018). More...

Published - reports, articles, speeches

Inquiry into penalty rates and fair pay: final report
Legislative Assembly Penalty Rates and Fair Pay Select Committee (Vic)
Parliament of Victoria: 24 July 2018
This inquiry, the first completed by a Legislative Assembly select committee in many years, examined the impact on Victorians of the Fair Work Commission's 2017 decision to reduce penalty rates in the hospitality, fast food, retail and pharmacy sectors. More...

Trends in Federal Enterprise Bargaining report for the March quarter 2018
Trends in Federal Enterprise Bargaining (Trends) is a quarterly report that provides data, and an accompanying explanatory summary, on quarterly growth in wages and agreement making in the federal workplace relations system (05 July 2018). More...

ABCC Industry Update June-July 2018
The information contained in this document is correct as at 31 July 2018. More...

In practice and courts

FWO: New unpaid family & domestic violence leave entitlement
Most employees will be able to take unpaid leave to deal with family and domestic violence from 1 August, following a Fair Work Commission decision. More...

FWO: 2018 Annual Wage Review – our pay tools are ready
FWO 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...

FWC: Filing fee increase – dismissals, general protections and anti-bullying applications
The filing fee for dismissal, general protections and anti-bullying applications made under sections 365, 372, 394, 773 and 789FC of the Fair Work Act 2009 increased to $71.90 on 1 July 2018. The high income threshold in unfair dismissal cases increased to $145,400 and the compensation cap to $72,700. Further, Justice Ross has approved an amendment to Form F3 – Employer's response to unfair dismissal application, to incorporate the increase to the high income threshold.

Employers who pay their employees under a modern award
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. 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 proposed laws follow extensive public consultation undertaken in 2017. More...

Cases

Australian Building and Construction Commissioner v McDermott (No 3) [2018] FCA 1105
INDUSTRIAL LAW – imposition of civil penalties for contraventions of s 500 of the Fair Work Act 2009 (Cth) – assessment of seriousness of contraventions – little or no significant economic consequences resulting from contravening conduct – contraventions deliberate – contravening conduct accompanied by defiant or mental attitude – no evidence of contrition or correction – pressing need for general deterrence.
COSTS – whether order for costs against applicant justified under s 570 of the Fair Work Act 2009 (Cth) – whether proceedings commenced or continued against a respondent vexatiously or without reasonable cause – whether an unreasonable act or omission caused the respondent to incur costs.

Rangi v Kmart Australia Ltd [2018] FCCA 2040
INDUSTRIAL LAW – Application for summary dismissal – where part of the claim is statute barred – relief sought in relation to a failure to promote – no prejudicial alteration of Applicant's position – claim does not engage s.342 of the Fair Work Act 2009 (Cth) – no reasonable prospects of success – summary judgment entered. Fair Work Act 2009 (Cth), ss.340, 341, 342, 361, 544, 570.

Fair Work Ombudsman v Alertvale Pty Ltd [2018] FCCA 1998
INDUSTRIAL LAW – Penalty Hearing – where contraventions of ss.44 and 323(1) of the Fair Work Act 2009 (Cth) admitted – s.557 and the common law "course of conduct" principle – consideration of factors relevant to penalty – totality principle – consideration of the appropriate penalty.

Moteki v Legnor Pty Ltd & Anor [2018] FCCA 1988
INDUSTRIAL LAW – Breach of general protections under the Fair Work Act 2009 – second respondent owner and controller of the applicant's employer – default judgment against both respondents – first respondent contravened ss 44, 45, 340(1)(a)(iii) and 535(3) of the Fair Work Act 2009 – no application made by second respondent to this court or appeal court to argue set aside the default orders – first respondent in liquidation – second respondent's liability in this litigation not contingent upon solvency of first respondent – second respondent an accessory to contraventions committed by first respondent – applicant sought relief only as against second respondent – applicant a full-time permanent employee – employment covered by the Restaurant Industry Award 2010 – level 5 food and beverage supervisor – second respondent was director and chief executive officer of first respondent – first respondent underpaid applicant – applicant complained to second respondent about respondent underpaying – applicant complained that first respondent had not provided signed version of employment contract and employee records despite request – complained that first respondent did not pay superannuation entitlements – complained that first respondent did not pay accrued entitlements – complaints amounted to exercise of workplace right – second respondent terminated employment of applicant by telephone – second respondent later sent email to applicant with reasons for termination – second respondent wanted to agitate threshold issues that went to liability – second respondent was knowingly concerned in all acts done by the first respondent – no contrition exhibited by second respondent – no corrective measures were taken – second respondent's actions in paying incorrect amounts were deliberate – second respondent driven by profitability of company – second respondent argumentative, defiant and confrontational – second respondent penalised for deliberateness in refusing to pay applicant amounts to which she is legitimately entitled.
COMPANY LAW – Applicant's employer was first respondent – first respondent was aligned to group of companies based in Japan – entire business was funded by the group – second respondent was sole director and shareholder of first respondent – first respondent was a separate legal entity – second respondent did not challenge he was controlling mind of first respondent – second respondent an accessory to contraventions committed by the first respondent.

Fair Work Ombudsman v NSW Motel Management Services Pty Ltd & Ors (No 2) [2018] FCCA 1935
INDUSTRIAL LAW – Applicant claims underpayments under and breach of Hospitality Industry (General) Award 2001 – whether employees covered by modern award – classification of employees under modern award – whether other alleged contraventions of modern award or Fair Work Act 2009 (Cth) made out – whether adverse action against employee/s because of workplace right – accessorial liability of second and third respondents.

Fair Work Ombudsman v VIP Security Services Pty Ltd & Anor [2018] FCCA 1969
INDUSTRIAL LAW – Commonwealth – Compliance and enforcement – Civil remedies – Pecuniary penalty orders – Assessing penalty – Deterrence.
INDUSTRIAL LAW – Commonwealth – Compliance and enforcement – Civil remedies – Pecuniary penalty orders – Amount of penalty – Totality and proportionality. Fair Work Act 2009, ss.550(1), 557(1)
Held: The aggregate penalty of $115,668.00 is, in my view, an appropriate response to the conduct which led to these contraventions. There is no evidence that it is, or is likely to be, oppressive or crushing.

Australian Building and Construction Commissioner v Construction Forestry, Maritime, Mining and Energy Union (The Brooker Highway Case) [2018] FCA 1081
INDUSTRIAL LAW – where the Australian Building and Construction Commissioner alleged contraventions, by two officers of the Construction, Forestry, Maritime, Mining and Energy Union, of ss 494(1) and 500, respectively, of the Fair Work Act 2009 (Cth) ("the FW Act") – where both officers held entry permits under the Work Health and Safety Act 2012 (Tas) – where only the second officer held a permit under the FW Act – whether the union is liable for any contraventions under s 550 and 793 of the FW Act.
STATUTORY INTERPRETATION – meaning of "any other right" in s 486 of the FW Act.

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Parliament Square Case) [2018] FCA 1080
INDUSTRIAL LAW – alleged contraventions of s 500 by an official of the Construction, Forestry, Mining and Energy Union at the Parliament Square construction site in Hobart, Tasmania – where the official held entry permits under the Fair Work Act 2009 (Cth) ("the Act") and the Work Health and Safety Act 2012 (Tas) – where the official entered the site on, relevantly, four of occasions in 2015 – whether the first three entries occurred pursuant to the exercise of a right under s 484 – where it was agreed that the last entry occurred pursuant to the exercise of a right under s 494(2) – whether the official was "exercising, or seeking to exercise, rights in accordance with" Part 3-4 of the Act – whether the official acted in an "improper manner" by not complying with notice requirements under s 487, not producing a notice of entry upon request contrary to s 489(2), not holding discussions during meal times or other breaks contrary to s 490(2), not entering only on a day specified in an entry notice contrary to s 490(3), refusing to leave the site when requested, and using foul language – whether the official contravened s 500 of the Act – whether the union should be liable for any contraventions of s 500 by the official via accessorial liability under ss 550(2)(c) and 793 of the Act.

Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd [2018] FCA 1065
INDUSTRIAL LAW – right of entry – where permit holder sought to exercise right of entry – where permit holder sought access to records or documents – whether permit holder was lawfully exercising the right of entry – whether permit holder had right to access records or documents – consideration of requirements of entry notice – whether the entry notice specified the particulars of the suspected contravention – whether entry notice contained the requisite declaration – whether right of entry exercised for the purpose of investigating a suspected contravention – whether suspicion of contravention reasonable – whether the documents sought were directly relevant to a suspected contravention.
Acts Interpretation Act 1901 (Cth) s 23; Fair Work Act 2009 (Cth) Pt 3-4, ss 12, 481, 482, 484, 486, 487, 502, 518, 521, 550; Industrial Relations Act 1988 (Cth) (repealed) s 286; Workplace Relations Act 1996 (Cth) (repealed) s 768.

Fair Work Ombudsman v WCH Services Pty Ltd & Anor [2018] FCCA 1878
INDUSTRIAL LAW – Penalty – undefended – contravention of s.405 of the Fair Work Act 2009 (Cth) – pecuniary penalty imposed – penalty to be paid to the Commonwealth – costs awarded to the Applicant.
Fair Work Act 2009 (Cth), ss.405, 546, 550, 570; Fair Work Regulations 2009 (Cth), reg.5.05.
Pursuant to s.546(1) of the Fair Work Act 2009 (Cth) ('the Act') that: (a) the First Respondent, WCH Services Pty Ltd, pay a penalty of $32,400, for its contravention of s.405 of the Act; and (b) the Second Respondent, William Collen Hancock, pay a penalty of $6,480, for his involvement in the First Respondent's contravention of s.405 of the Act.

Jolley v Genesis Medical Trust t/a Mentone Medical Clinic [2018] FCCA 1781
INDUSTRIAL LAW – Small Claims – Fair Work division – Health Professionals and Support Services Award 2010.

Construction, Forestry, Maritime, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd [2018] FCAFC 107
INDUSTRIAL LAW – appeal from decision of single judge – where s 490(2) of the Fair Work Act 2009 (Cth) confers right for union representatives to access work premises to hold discussions with employees "during mealtimes or other breaks" – whether holding discussions before an employee's shift is permitted under s 490(2) – meaning of the term "breaks" – finding that ordinary meaning of the term "break" necessarily implies an interruption in continuity – discussions to occur during, not before or after, a work shift.
STATUTORY INTERPRETATION – whether the phrase "mealtimes or other breaks" is ambiguous – whether appropriate to have regard to the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) – where Explanatory Memorandum includes "holding discussions before or after an employee's shift" as an example of a "break" – finding that the phrase "mealtimes or other breaks" is unambiguous – finding that recourse to the Explanatory Memorandum is not merited – appeal dismissed.

Legislation

New South Wales

Regulations and other miscellaneous instruments
Industrial Relations (General) Amendment (Fees) Regulation 2018 (2018-350) — published LW 29 June 2018.
This Regulation commences on 1 July 2018 and is required to be published on the NSW legislation website.

Victoria

Statutory Rules

No. 96 Surveillance Devices Amendment (Body-worn Cameras) Regulations 2018
Date of Making: 10/07/2018 Commencement: 11/07/2018: reg. 3 Not yet in operation: N/A Sunset Date: 0/07/2028

Victorian legislation is available here.

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