Australia: Workplace Relations Monthly Update - September 2018

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

Most Read Contributor in Australia, September 2018

In the media

Government dumps farm labour visa plan
The federal government has dumped plans for a new farm labour visa to fill a huge gap in the rural workforce. The National Farmers Federation and other groups have been urging the federal government to introduce a special agricultural visa, which would allow a greater flow of foreign workers for jobs such as fruit picking and packing (26 September 2018). More...

Employers push for a new casual worker category but unions slam the proposal
The NSW Business Chamber has made an application to the Fair Work Commission for a new class of employee under some awards, called "perma-flexi". The chamber said it will avoid "double-dipping" of benefits, after the Federal Court ruled that a casual truck driver was entitled to annual leave, as he worked regular and predictable shifts (25 September 2018). More...

Superannuation: Push to remove $450 monthly threshold for superannuation payments as government keeps focus on unpaid super
Superannuation experts and industry groups are leading a push to scrap the $450 monthly threshold for paying staff super, while small business groups continue their efforts to encourage the government to reduce the red tape around super. More...

Miners to launch new class actions against labour hire firms WorkPac, Programmed, HAYS and One Key
The mining industry is facing four new class actions alleging that more than 25,000 workers were not paid their proper entitlement, worth up to $325 million (22 September 2018). More...

Café franchisor improves workplace compliance
The Fair Work Ombudsman has published a report on its compliance partnership with Minor DKL Food Group Pty Ltd (MDKL), which owns the Coffee Club, Ribs & Rumps, Coffee Hit and Veneziano Coffee Roasters brands (21 September 2018). More...

Court orders media company and director to pay $570,000
A company that operated news websites covering regional Queensland and its director have been penalised a total of $264,924 for underpaying young journalists and production staff following legal action by the Fair Work Ombudsman (20 September 2018). More...

'Exploitation via an app': Workers rights in the gig economy to come under review
A former Fair Work ombudsman will head a Victorian Government inquiry into the exploitation of workers in the state's emerging gig-economy and on-demand industry (21 September 2018). More...

Victorian inquiry condemns cuts to penalty rates
The Government's response to the final report of the Victorian Parliament select committee inquiry into penalty rates has found cutting penalty rates disproportionately affects women and young workers, and that the reduction in income of some workers will likely have a flow on effect to the Victorian economy, particularly in small regional communities (20 September 2018). More...

Progress on gender equality has 'stalled', new advocacy group argues
With a number of indicators showing progress towards gender equality stalling, 17 women's industry groups have joined forces to put the issue back to the top of the agenda (19 September 2018). More...

Bunnings reviews 'bank of hours' staffing policy after string of complaints
Bunnings is reviewing a rostering practice which sends staff home during slow periods and "banks" the unworked hours, forcing them to make up the hours in peak times, possibly months later, instead of getting overtime pay (10 September 2018). More...

Workers win right to portable long service benefits
The Long Service Benefits Portability Act 2018 has passed the Victorian Parliament, making long service benefits available to workers who had been denied the right through no fault of their own (05 September 2018). More...

Published report articles, speeches

Hope is not a strategy – our shared responsibility for the future of work and workers
Senate Select Committee on the Future of Work and Workers; Parliament of Australia: 19 September 2018
The world of work is changing. In Australia and elsewhere, policymakers face the challenge of responding to trends and proactively preparing the nation and its workers for the employment landscape of tomorrow. More...

A matter of care: Australia's aged care workforce strategy
Aged Care Workforce Strategy Taskforce; Department of Health (Australia): 13 September 2018
This blueprint for the aged care sector to rapidly grow Australia's professional aged care workforce – estimated to require almost one million workers by 2050 – has been developed by an industry-led expert taskforce. More...

Everyone's business: fourth national survey on sexual harassment in Australian workplaces
Australian Human Rights Commission: 12 September 2018
The Australian public has rightly demanded to know more about the pervasiveness and impact of workplace sexual harassment and to see concerted action taken to prevent this behaviour from occurring. More...

In practice and courts

ABCC: Tendering for building work just got easier
The ABCC is committed to reducing red tape and promoting greater efficiencies in the building and construction industry. One way we are doing this is through the Workplace Relations Management Plan (WRMP) that head contractors are required to submit when tendering for Commonwealth funded building work.
The new WRMP form should be used now. Instructions are available here (13 September 2018). More...

Victorian Labour Hire Licensing Scheme: Public Consultation
The key purpose of the Labour Hire Licensing Act 2018 (Vic) (Act) is to establish a business licensing system to regulate the provision of labour hire services and, in turn, protect vulnerable labour hire workers from exploitation. Interested stakeholders are invited to provide detailed feedback on any and all aspects of the exposure draft Regulations. Submissions closed on 5 September 2018. More...

Cases

Veeraragoo v Goldbreak Holdings Pty Ltd (No 2) [2018] FCA 1448
INDUSTRIAL LAW – Application for imposition of pecuniary penalties and for compensation to be paid to employee – termination of employment – unpaid wages and leave entitlements – humiliation and distress – contraventions of Fair Work Act 2009 (Cth) – consideration of appropriate penalties – consideration of circumstances in which compensation may be ordered to be personally paid by a person involved in contravention – consideration of circumstances in which a single penalty amount may be assessed – factors relevant to penalty – whether penalty should be order to be paid to applicant – penalty imposed – compensation awarded.
Fair Work Act 2009 (Cth) ss 550, 546, 545

Fair Work Ombudsman v Davdot Pty Ltd & Anor) [2018] FCCA 2682
INDUSTRIAL LAW – Application under Fair Work Act 2009 – penalty hearing – failure to pay entitlements under award – failure to provide payslips – penalties imposed.
Fair Work Act 2009, s.23

Fair Work Ombudsman v Wok Me Corporate Nq Pty Ltd & Anor [2018] FCCA 2635
INDUSTRIAL LAW – Determination of penalties – where statement of agreed facts outlines the contraventions – where evidence of past complaints against associated companies ruled inadmissible as "unfairly prejudicial" to Respondents – where proportionality considerations form part of totality principle – where total underpayments in respect of contraventions was $12,658.23 – where FWO submissions as to penalty disproportionate to factual matrix.

Keenan v Cummins South Pacific Pty Ltd [2018] FCCA 2600
INDUSTRIAL LAW – Adverse action. Held: In my judgment Mr Keenan succeeded in this proceeding. He is entitled to compensation and other relief.

Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 3) [2018] FCA 1395
INDUSTRIAL LAW – Pecuniary penalty – where first respondent breached s 340 Fair Work Act 2009 (Cth) – single contravention – consideration of appropriate quantum of pecuniary penalty – where contravention considered to be serious, but not flagrant or deliberate – where seriousness of contravention mitigated by circumstances of contravention – where first respondent had good industrial record – where it was unlikely that even the maximum penalty would provide specific or general deterrence – appropriate quantum of civil penalty.
INDUSTRIAL LAW – whether declaration of contravention should be made under s 21 Federal Court Act 1976 (Cth) – where parties agreed that a declaration should be made – consideration of whether the making of a declaration is appropriate – where appropriate case for making a declaration that first respondent contravened s 340 Fair Work Act 2009 (Cth).

Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Inspector Lam [2018] FCA 1379
INDUSTRIAL LAW – Fair Work Act 2009 (Cth) ("FW Act") – Fair Work inspector's exercise of "compliance powers" under s 706 of the FW Act – power of an inspector to obtain records and documents pursuant to a notice issued under s 712 – principles relating to the validity of a notice –whether notice specifies the records and documents that the recipient is required to provide with reasonable clarity – whether the notice discloses the relationship between the documents required and the matter which is the subject of the exercise of the inspector's inquiry – whether notice is required to expressly specify the particular provision or provisions of the FW Act which found the inspector's inquiry – notice invalid and of no effect.

Fair Work Ombudsman v Touchpoint Media Pty Ltd & Anor [2018] FCCA 2615
INDUSTRIAL LAW – Fair Work Act 2009 – Penalty hearing – failure to pay penalty rates. Penalties awarded.

Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2018] FCAFC 146
INDUSTRIAL LAW – Statutory interpretation – construction of enterprise agreement – whether employee organisations noted by the Fair Work Commission as "covered" by enterprise agreement under Fair Work Act 2009 (Cth) ss 54 and 201(2) have standing in own right as party to a dispute under dispute resolution procedure mandated by s 186 – consideration of meaning of "workplace right" under s 341 – where dispute as to interpretation by Fair Work Commission as arbitrator of enterprise agreement clause – where employee organisation when initiating dispute resolution process did not specifically identify affected employees – where employer in arbitration submitted that it accepted Fair Work Commission had jurisdiction to resolve dispute.
COSTS – Fair Work Act 2009 (Cth) s 570(1) – whether proceeding "in relation to a matter arising under" the Fair Work Act 2009 (Cth) – where primary judge set aside originating application claiming relief under Fair Work Act 2009 (Cth) for want of jurisdiction and ordered applicant to pay respondent's costs on basis no matter arose under Act.

Legislation

Commonwealth
Corporations Amendment (Strengthening Protections for Employee Entitlements) Bill 2018
HR 21/09/2018 - The Bill introduces new provisions that will facilitate the disqualification of company directors and other officers where they have a track record of corporate contraventions, and inappropriately using the FEG scheme to pay outstanding employee entitlements.

Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018
HR 13/09/2018 - The Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018 (the Bill) would amend the Fair Work Act 2009 (the Act) to insert a new entitlement in the National Employment Standards (NES) to five days of unpaid family and domestic violence leave.

Victoria
Long Service Benefits Portability Act 2018
No. 44 of 2018 [Assented to 18 September 2018]

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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