Australia: Workplace Relations Monthly Update - August 2018

Last Updated: 15 September 2018
Article by Stephen Trew, Michael Selinger, Charles Power, Benjamin Marshall and Rachel Drew

Most Read Contributor in Australia, August 2018

In the media

Workers from Flight Centre Travel Group take company to Fair Work Commission
Staff claiming to have been underpaid at Flight Centre subsidiary Travel Money Oz are taking their case to the Fair Work Commission. This comes after former Flight Centre staff came forward with claims of underpayment and bullying at the travel giant (31 August 2018). More...

Queensland's lowest paid workers set to receive pay increase
Industrial Relations Minister Grace Grace welcomed the decision of the Queensland Industrial Relations Commission (QIRC) to increase award rates of pay for Queensland's lowest paid workers covered by the state industrial relations jurisdiction (30 August 2018). More...

FWO to conduct 200 workplace audits in NSW
The Fair Work Ombudsman will audit at least 200 businesses across outer west Sydney, the Blue Mountains and Wollondilly in its latest proactive compliance and education campaign (28 August 2018). More...

Union launches legal action to scuttle Woolworths EBA and get $1b in backpay
A small breakaway union seeks to overturn the contentious 2012 Woolworths enterprise agreement, following success in terminating a similar agreement with Coles (23 August 2018). More...

Record penalties against technology company
The Fair Work Ombudsman has obtained record penalties against Brisbane-based Macquarie Technology Group International Pty Ltd and owner Paul Desmond Wallace for failing to comply with an order to compensate an employee who had been unfairly dismissed (20 August 2018). More...

Body of work' needed on slavery in supply chains
One in five procurement managers say their organisation hasn't taken steps on modern slavery. Experts say the Modern Slavery Act will significantly impact how governments and companies procure goods and services, so why aren't more procurement managers ready (16 August 2018). More...

Penalties necessary for effective Modern Slavery laws
Financial penalties should be levied upon entities that fail to report their modern slavery risks under the proposed legislation, the Law Council has told a parliamentary committee (03 August 2018). More...

Code for ethical treatment of clothing workers reauthorised
Ethical Clothing Australia's Homeworkers Code of Practice, which helps reduce the exploitation of textile, clothing and footwear (TCF) workers in Australia, has been reauthorised by the ACCC for a further ten years. The Code imposes obligations on participants in the supply chain to demonstrate that they provide award wages and conditions to textile, clothing and footwear workers (30 August 2018). More...

New regulations to oversee labour hire industry in Victoria
The Andrews Labor Government has released draft regulations to support the new Labour Hire Scheme that will protect the wages and conditions of some of Victoria's most vulnerable workers. The proposed regulations focus on workers at the highest risk, including horticulture, the meat industry and cleaning (07 August 2018). More...

Labour hire provider loses license to operate in Queensland
Industrial Relations Minister Grace Grace has confirmed a labour hire provider operating in the Lockyer Valley region has had its labour hire license cancelled. This is Queensland's first cancellation (07 August 2018). More...

Landmark decision on sick leave for shift workers
In AWU v AstraZeneca Pty Ltd [2018] FWC 4660, the Fair Work Commission (the "FWC") has handed down a ruling against AstraZeneca where the company was using the standard industry practise of providing an average of 76 hours of paid leave, based on the average of a 7.6 hour working day (08 August 2018). More...

Millions of workers across Australia now have access to unpaid domestic violence leave
Employees on modern awards can now take up to five days of unpaid leave to deal with family and domestic violence. But when it costs about $18,000 to flee an abusive relationship, some have questioned whether the ruling goes far enough (01 August 2018). More...

CFMMEU and two officials penalised $271,500 for 'defiant' and 'disgraceful' conduct on Bendigo site
The Federal Court has imposed penalties totaling $271,500 against the CFMMEU and two of its officials after they refused to show their right of entry permits and were abusive when asked to do so at the Bendigo Theatre site in Victoria (14 August 2018). More...

Full Federal Court reinforces concerns over CFMMEU's blatant unlawful behaviour; upholds maximum penalty
The Full Federal Court has upheld an earlier decision of the Federal Circuit Court to impose maximum penalties on the CFMMEU for the unlawful conduct in February 2015 of its then Queensland President Dave Hanna. In October 2017 the Federal Circuit Court in Brisbane imposed the maximum penalty of $306,000 on the CFMMEU following Mr Hanna contravening right of entry laws at a Fortitude Valley construction site (14 August 2018). More...

Federal Court makes first personal payment order against CFMMEU repeat offender
Following a landmark ruling by the High Court earlier this year the Full Federal Court has ordered CFMMEU official Joseph Myles to personally pay a penalty of $19,500. The order prevents Mr Myles from seeking any financial benefit from the CFMMEU to pay the penalty (02 August 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. The Fair Work Commission have updated all industry and occupation awards to include a new clause about family and domestic violence. This new clause applies from the first full pay period on or after 1 August 2018. More...

ABCC: Zero tolerance for drugs and alcohol on construction sites
The ABCC regulates the Code for the Tendering and Performance of Building Work 2016. The Code has strict rules about fitness for work. Code covered contractors are reminded that they must ensure all of their sites have an approach to managing drug and alcohol issues in the workplace. The relevant drugs are those listed in Schedule 4 to the Building Code (02 August 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.

QLRC: Civil surveillance and privacy review; Workplace surveillance review
Employers use optical surveillance, data monitoring and tracking devices for a number of legitimate reasons, including to ensure employee health and safety, protect property from theft and damage, prevent fraud and monitor employee performance. The terms of reference can be found here and the QLRC will report back by 1 July 2019 (civil surveillance) and by 30 June 2020 (workplace surveillance).

Cases

Australian Building and Construction Commissioner v O'Connor (No 4) [2018] FCA 1293
INDUSTRIAL LAW – consideration of the appropriate declarations to be made against the respondents in respect of contraventions of the civil remedy provisions of the Fair Work Act 2009 (Cth) – consideration of the appropriate penalties to be imposed on the second and third respondents – where first respondent found to have contravened ss 348, 355 and 500 of the Fair Work Act 2009 (Cth) – where second respondent found to have contravened ss 348 and 355 of the Fair Work Act – where third respondent found to have contravened ss 348, 355 and 500 of the Fair Work Act – consideration of the approach to pecuniary penalties for contraventions of civil remedy provisions of the Fair Work Act – factors to be taken into account when assessing the penalty to be imposed – nature and extent of the contravening conduct – loss and damage caused by the contravening conduct – whether the conduct constituting the contravening conduct was deliberate – extent of any benefit or profit derived from the contravening conduct – extent of co-operation with the applicant and of any contrition shown for the contravening conduct – financial circumstances of the second and third respondents – any corrective action taken by the respondents – prior contraventions – general and specific deterrence – totality.

Broadspectrum (Australia) Pty Ltd v United Voice [2018] FCAFC 139
INDUSTRIAL LAW – Pt 2-4 of the Fair Work Act 2009 (Cth) ("FW Act") – the process for the making and approval of a single-enterprise agreement which is not a greenfields agreement ("single-enterprise (non-greenfields) agreement") under Div 4 of Pt 2-4 of the FW Act – approval of a single-enterprise (non-greenfields) agreement by the Fair Work Commission ("FWC") under s 186(1) of the FW Act – the nature of the requirement under s 172(2)(a) of the FW Act that an employer may make a single-enterprise (non-greenfields) agreement "with employees who are employed at the time the agreement is made and who will be covered by the agreement" – the requirement under s 186(2) of the FW Act that in approving a single-enterprise (non-greenfields) agreement the FWC be satisfied that "the agreement has been genuinely agreed to by the employees covered by an agreement" – the nature and content of the statutory task of the FWC under s 186(2)(a) of the FW Act – whether the FWC fell into jurisdictional error in assessing whether the relevant single-enterprise (non-greenfields) agreement ("Agreement") had been "genuinely agreed to" within the meaning of s 186(2)(a) of the FW Act by taking into account an irrelevant consideration, namely whether or not employees were "covered" by the Agreement at the time it was made in accordance with s 172(2)(a) of the FW Act – whether the FWC misconstrued s 186(2)(a) in determining that the relevant employees were not "covered" by the Agreement. Dismissed.

Fair Work Ombudsman v A to Z Catering Solution Pty Limited & Anor (No.2) [2018] FCCA 2299
INDUSTRIAL LAW – PRACTICE & PROCEDURE – Applicant claims that corporate employer contravened various provisions of the Fair Work Act 2009 (Cth) and the Fair Work Regulations 2009 (Cth) and that director of corporate employer was involved in contraventions – corporate employer admits most contraventions alleged in the statement of claim but relying on the privilege against incriminating himself to a penalty director elects not to plead to statement of claim – whether admissions of contraventions made by corporate employer in its defence to the statement of claim relieves applicant from having to prove elements of contravention against director in addition to proving involvement of director in those contraventions – applicant not relieved of proving contraventions against director.
INDUSTRIAL LAW – Whether applicant has proved contraventions of the Fair Work Act 2009 (Cth) and the Fair Work Regulations 2009 (Cth) alleged in statement of claim – whether applicant has proved director involved in contraventions – whether proof of involvement in contraventions of award requires knowledge of existence of award as opposed to knowledge of facts that give rise to liability under the award – principles concerning involvement in another person's contraventions discussed.
INDUSTRIAL LAW – EVIDENCE – Whether judicial notice may be taken of the contents of an award or of other industrial instruments.

Fair Work Ombudsman v OzKorea Pty Ltd & Ors [2018] FCCA 2350
INDUSTRIAL LAW – Contraventions of the Fair Work Act 2009 – Contraventions of the Fair Work Regulations 2009 – failure to pay minimum entitlements under the Cleaning Services Award 2010 – failure to pay minimum wage under Award – failure to keep records.
ACCESSORIAL LIABILITY – Whether head contractor knowingly concerned with contraventions – knowledge of essential elements of facts going to contravention – knowledge of Award – no knowledge of exact wages paid necessary – actual knowledge imputed – accessorial liability established.

Fair Work Ombudsman v The Meatball And Wine Bar Pty Ltd [2018] FCCA 2288
INDUSTRIAL LAW – Failure to pay minimum standards – deliberateness of conduct – factors going to penalty – effect of publicity – adverse publicity – discount on penalty. The Respondent pay penalties pursuant to s.546(1) of the Act for its contraventions set out in [1] above, fixed in the sum of $31,320.

EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134
INDUSTRIAL LAW – Accessorial liability – whether the Appellant was involved in contraventions – whether the Appellant was knowingly concerned in contraventions – consideration of the extent of knowledge required – where the primary Judge made findings of actual knowledge.
PRACTICE AND PROCEDURE – Appeals – where primary Judge made findings of actual knowledge – where primary Judge made adverse findings as to credit – whether appellable error in findings made by primary judge.
Declaration 1(f) as made by the Federal Circuit Court of Australia on 28 April 2017 is set aside.

Ghimire v Karriview Management Pty Ltd and Sharma v Karriview Management Pty Ltd [2018] FCCA 2157
INDUSTRIAL LAW – Claim for unpaid entitlements and other benefits and expenses – whether a small claim – where claims exceed statutory monetary limits – where pecuniary penalty orders sought – whether action estopped by reason of earlier order of Industrial Magistrates Court of Western Australia – where statutory prohibition on employment of non-citizens – whether applicants had legal capacity to enter into employment contracts – whether work can be performed by a non-citizen – whether employment contract legally valid.
PRACTICE AND PROCEDURE – Whether to grant leave for a corporation not to be represented by a lawyer – consideration of factors – complexity – inter-linked cause of action estoppel, Anshun estoppel and issue estoppel – whether accrued or associated jurisdiction – whether applicants had legal capacity to enter into employment contracts – whether work can be performed by a non-citizen – whether employment contract legally valid – whether possible offences by reason of work performed if applicants had no right to work – evidentiary issues which might arise in relation to criminal and civil penalty liability.
CONRACTS – Employment contracts – whether statutory prohibition on employment – whether employment contracts with non-citizens valid.

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Brooker Highway Case) (No 2) [2018] FCA 1214
INDUSTRIAL LAW – Where the Federal Court had found contraventions of s 500 of the Fair Work Act 2009 (Cth) by an official of the Construction, Forestry, Maritime, Mining and Energy Union – where the union was liable on the basis of s 550 of the Fair Work Act 2009 (Cth) – consideration of appropriate penalties – consideration of whether a nonindemnification personal payment order should be made.
Contravened s 500 of the Fair Work Act 2009 (Cth) ("the FW Act") on 12 October 2016 at a road building project on the Brooker Highway. A penalty of $50,000 should be imposed for this contravention of the FW Act.

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bendigo Theatre Case) (No 2) [2018] FCA 1211
INDUSTRIAL LAW – Where the Federal Court had found contraventions of ss 497 and 500 of the Fair Work Act 2009 (Cth) by two officials of the Construction, Forestry, Mining and Energy Union – where the union was liable on the basis of ss 550 and 793 of the Fair Work Act 2009 (Cth) – consideration of appropriate penalties – consideration of whether a non-indemnification personal payment order should be made.

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126
INDUSTRIAL LAW – Appeal from a judgement of the Federal Circuit Court – where the primary judge had imposed civil penalties on the Construction, Forestry, Maritime, Mining and Energy Union in the maximum amounts available for six contraventions of s 500 of the Fair Work Act 2009 (Cth) – whether the primary judge erred by failing to treat the appellant's contraventions as arising out of a course of conduct – whether the primary judge erred by finding that the union official was the public face of the appellant – whether the primary judge erred by treating each of the six contraventions as being in the worst possible category – whether the primary judge erred by imposing a penalty that was, in all the circumstances, manifestly excessive.
Order 2 in sub-section 3, the total penalty was changed from $360,000 to $306,000.
The orders of the Federal Circuit Court made on 19 October 2017 be set aside.

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (No 2) [2018] FCAFC 117
INDUSTRIAL LAW – Contraventions of s 348 of Fair Work Act 2009 – making of orders as to penalty – personal payment order – form of personal payment order.

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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