Australia: Workplace relations update – media releases, reports, articles, speeches, in practice and courts, cases and legislation.

Last Updated: 14 November 2018
Article by Stephen Trew, Michael Selinger, Charles Power, Benjamin Marshall and Rachel Drew

Most Read Contributor in Australia, December 2018

In the media

Crust pizza franchisee allegedly discriminated against migrant workers
The Fair Work Ombudsman has commenced legal action against the operators of a Crust Gourmet Pizza franchise outlet in Hobart, alleging they discriminated against four overseas workers by paying them much less than Australian employees (23 October 2018). More...

A fairer system for considering criminal records in employment decisions
The Government will amend the Australian Human Rights Commission Regulations 1989 to clarify that whilst employers can discriminate on the basis of a 'relevant criminal record', they won't be able to discriminate if the conviction is 'irrelevant' to the role being applied for (19 October 2018). More...

LCA welcomes new entitlements proposed under the Family and Domestic Violence Leave Bill
Law Council representatives welcomed the new entitlement in the National Employment Standards proposed under the Bill, being five days of unpaid family and domestic violence leave, as a critical step in the right direction (17 October 2018). More...

Unions furious about Government's decision to join casual workers court case
Jobs Minister Kelly O'Dwyer joins a court case testing the definition of casual employment, arguing recent decisions have caused "anxiety" among small businesses around the country (18 October 2018). More...

CFMMEU fined $313,000 and ordered to take out advertisement for threatening to "smash" contractors
The Federal Court has ordered the CFMMEU and seven of its officers to pay penalties totalling $313,000 for their unlawful conduct against a number of concreting companies at construction sites in Sydney in 2014 and 2015 (18 October 2018). More...

ABCC launches legal action against West Australian ceiling company and its director
The ABCC has commenced proceedings against West Australian company Big Li Ceiling Pty Ltd and its director Yiting Li alleging the company failed to produce records and documents of its workers and subcontractors during a wages and entitlements audit (11 October 2018). More...

Court imposes $105,000 in penalties for unlawful industrial action at Perth Children's Hospital
The Federal Court has imposed total penalties of $105,000 against 75 workers after they took part in unlawful industrial action at the New Children's Hospital project in Perth in 2013 (11 October 2018). More...

Workplaces under the spotlight in Productivity Commission inquiry into mental health
Australian businesses will be a focus of an independent inquiry into mental health that will recommend key priorities for the Federal Government's long-term mental health strategy (07 October 2018). More...

Unions demand shake-up of employee bargaining powers ahead of federal election
ACTU Secretary Sally McManus will outline a plan for workers to engage in sector or industry bargaining, seizing on concerns over sluggish wage growth and fuelling debate about Australia's industrial relations landscape months out from a federal election (04 October 2018). More...

Court blocks release of report about bullying in fire brigades
Victorian Equal Opportunity and Human Rights Commissioner Kristen Hilton says she is "disappointed" by a court ruling to block the release of an investigation into bullying, sexual harassment and discrimination in the state's fire services (04 October 2018). More...

Misrepresentation comes at a cost for union official
The CFMMEU's former South Australian organiser Mark Gava has been penalised $6,000 and his union $68,000 following Mr Gava breaching right of entry laws at the Flinders Medical Centre project in Adelaide in December 2016 (02 October 2018). More...

Published - reports, articles, speeches

Wage theft in silence: Why migrant workers do not recover their unpaid wages in Australia
Bassina Farbenblum, Laurie Berg; Migrant Worker Justice Initiative: 29 October 2018
This report argues that structural reforms are urgently required to address the drivers of exploitation. There is also a pressing need for remedial mechanisms that are accessible to individual migrant workers.

Trends in union membership in Australia
Geoff Gilfillan, Chris McGann; Parliamentary Library (Australia): 15 October 2018
This statistical snapshot outlines the decline in union membership in Australia over the past forty years using the latest data available and considers possible reasons for the decline.

FWC Annual report 2017–18
The Fair Work Commission has published its annual report for the 2017–18 financial year following its tabling in the Australian Parliament (17 October 2018).

ABCC: Industry update September - October 2018
Industry Update provides updates on the latest activities of the ABCC, industry trends and emerging issues (09 October 2018).

In practice and courts

ABCC Alert - Rally advice - reporting question answered
In response to queries, the ABCC provides the following guidance to code covered entities on their obligations under section 16 of the Code for the Tendering and Performance of Building Work 2016. Section 16 of the Code does not require any action to be taken where an employer has authorised the absence of their workers (17 October 2018). More...

ABCC E-Alert: Industrial rallies - know your rights and responsibilities
The Australian Building and Construction Commission is reminding all building industry participants ahead of a series of nation-wide rallies to familiarise themselves with their rights and responsibilities (17 October 2018). More...

AHRC Submissions - National Inquiry into Sexual Harassment in Australian Workplaces
The Commission is interested in hearing from individuals and organisations about their views and experiences relating to sexual harassment in Australian workplaces. Submissions are now open. The closing date for submissions is 31 January 2019. 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.

Cases

Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd [2018] FCAFC 182
INDUSTRIAL LAW – Whether provision of enterprise agreement providing that an employer may require an employee to work reasonable overtime is capable of being contravened by the employer for the purpose of s 50 of the Fair Work Act 2009 (Cth) – principles of construction of an enterprise agreement. Appeal allowed.

Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd [2018] FCA 1590
PRACTICE AND PROCEDURE – Application for interlocutory injunction pursuant to s 545 of the Fair Work Act 2009 (Cth) (FW Act) and s 23 of the Federal Court of Australia Act 1976 (Cth) – alleged adverse action for a prohibited reason or reasons under the FW Act – prima facie case – balance of convenience.
INDUSTRIAL LAW – Where a mine worker had previously been reinstated by her employer after successfully unfair dismissal – where the mine worker was informed that she was no longer required at the mine – where on the night prior to being informed that she was no longer needed, the applicant purported to exercise workplace rights – where no reasons were given for the demobilisation of the mine worker – whether the mine worker exercised workplace rights as defined in the Fair Work Act 2009 (Cth) (FW Act) – whether the decision that the mine worker was no longer needed was made prior to the purported exercise of workplace rights – whether adverse action was taken for a prohibited reason or reasons in contravention of s 340 of the FW Act – whether the application is statute barred as a result of s 725 of the FW Act.

BlueScope Steel Limited v Australian Workers' Union [2018] FCA 1574
INDUSTRIAL LAW – Where employee organisation contravened s 417 Fair Work Act 2009 (Cth) by organising meeting of employees – where vote taken at meeting for 24-hour strike/stoppage – whether employee organisation also organised industrial action in the form of strike/stoppage – whether employee organisation's contravention of s 417 extended to organising strike/stoppage – where employer did not discharge onus of proving that employee organisation organised strike/stoppage.
INDUSTRIAL LAW – Where employees contravened s 417 Fair Work Act 2009 (Cth) – accessorial liability of employee organisation for employees' contravention – whether employee organisation was knowingly concerned in, and therefore involved in, employees' contravention of s 417, pursuant to s 550 Fair Work Act 2009 (Cth) – where employer did not discharge onus of proving that employee organisation was liable for organisation of strike/stoppage.
INDUSTRIAL LAW – Whether employee organisation contravened s 475 Fair Work Act 2009 (Cth) – whether employee organisation asked employer to make payments to employees in contravention of s 474 Fair Work Act 2009 (Cth) – where terms of legislation clear – motive for making request irrelevant.

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The BKH Contractors Case) (No 2) [2018] FCA 1563
INDUSTRIAL LAW – Penalties – contraventions of ss 340, 343, 494, 500 of the Fair Work Act 2009 (Cth) – quantification of penalties – primary objective of deterrence – considerations to be taken into account in quantifying penalties – consideration of relevance of maximum penalty – requirement to impose separate penalties for separate contraventions – imposition of penalties where multiple contraventions arise from a common set of facts – application of the course of conduct principle – application of the totality principle – consideration of the need for parity in penalties – consideration of relevance of loss caused by contravening conduct – consideration of relevance of the size and nature of a contravening organisation – consideration of relevance of submissions in the process of quantifying penalties.

Coote v Mainline Access Pty Ltd & Anor (No.2) [2018] FCCA 2892
INDUSTRIAL LAW – Application for the recovery of wages and other entitlements based on contravention of award and therefore s 45 of the Fair Work Act 2009 (Cth) (FW Act) – whether amounts payable under award are to be calculated by reference to rate agreed between the employer and employee that is higher than the rates provided for under award – whether because the employer and employee mistakenly intended that the employee would be engaged as a contractor but instead created or maintained an employer/employee relationship the agreed rate is not recoverable - whether if amounts payable under the award are not to be calculated by reference to the higher agreed rates whether employee can concurrently maintain an action in contract to recover amounts calculated by reference to the agreed rate – appropriation of payments to entitlements under awards discussed – if after appropriation of payments there remain amounts payable under the award and the employer, therefore, contravened the award and, therefore, s 45 of the FW Act, whether the sole director and shareholder was involved in those contraventions.
INDUSTRIAL LAW – Claims for contraventions of various other provisions of the Fair Work Act 2009 (Cth) – whether employer contravened provisions – whether sole director and shareholder of employer was involved in contraventions. Fair Work Act 2009 (Cth) ss 44, 45, 87, 90, 323, 324, 535, 536, 545, 550; Fair Work Regulations 2009 (Cth) regs. 3.33(1), 3.34.

Karlovasitis v Link Property Services Pty Ltd (No.2) [2018] FCCA 2848
INDUSTRIAL LAW – Fair work – interpretation of a contract of employment insofar as it relates to commissions for work written before resignation but not paid until afterwards.

Fair Work Ombudsman v Poisson Pty Ltd & Anor [2018] FCCA 2766
INDUSTRIAL LAW – Application for imposition of pecuniary penalties – contravention of Fair Work Act – contravention of Award entitlements to basic rate of pay, penalty rates and loadings – failing to keep records – penalties imposed. Fair Work Act 2009 (Cth), ss 3(b), 12, 45, 44(1), 535(1), 536(2), 539(2), 546(1) & (2), 546(1), 550(2), 557, 557(1).
(3) The First Respondent pay a total penalty of $142,144 pursuant to section 546(1) of the FW Act, for committing the contraventions set out in order 1 above.
(4) The Second Respondent pay a total penalty of $26,780 pursuant to section 546(1) of the FW Act, for her involvement in the contraventions set out in order 1 above.

Australian Building and Construction Commissioner v Gava [2018] FCA 1480
INDUSTRIAL LAW – Contraventions of s 503 of the Fair Work Act 2009 (Cth) (the FW Act) – First Respondent causing entry notice to be sent with the intention of giving the impression that he was a permit holder authorised to send an entry notice and authorised to enter the site – First Respondent's subsequent entry to site with the intention of giving the impression that he was a permit holder authorised to enter the site – whether two acts were part of the same action and constituted a single contravention – two actions held to be separate and distinct contraventions – appropriate pecuniary penalties for contraventions by union and union official.
INDUSTRIAL LAW – Personal payment order under s 546 of the FW Act – whether appropriate to make a personal payment order – union official is no longer employed by the union and conduct isolated – personal payment order not appropriate in the circumstances. Penalties awarded.

Legislation

Commonwealth

Corporations Amendment (Strengthening Protections for Employee Entitlements) Bill 2018
HR Third reading agreed to 24/10/2018
Amends the Corporations Act 2001 to strengthen enforcement and recovery options to deter and penalise company directors and other persons who engage in, or facilitate, transactions that are aimed at preventing, avoiding or significantly reducing employer liability for employee entitlements in insolvency; enable the recovery of unpaid employee entitlements of an insolvent company from certain entities in limited circumstances; and enable the Australian Securities and Investments Commission to disqualify company directors and other officers (either directly or on application to the Court) ,where they have a track record of corporate contraventions and inappropriately using the Fair Entitlements Guarantee scheme to pay outstanding employee entitlements; and Corporations (Aboriginal and Torres Strait Islander) Act 2006 to make a consequential amendment.

A Fair Go for Australians in Trade Bill 2018 [No. 2]
Senate Second reading moved 16/10/2018
The bill prohibits the Commonwealth from entering into a trade agreement that includes certain provisions; requires the Commonwealth to include in all bilateral trade agreements a labour chapter with internationally recognised labour principles; prohibit the Commonwealth from entering into a trade agreement unless the agreement requires skills assessments to be undertaken in Australia; requires the minister to commission an independent national interest assessment of any proposed trade agreement; and provides for the establishment of an accredited trade advisers program.

Fair Work Amendment (Restoring Penalty Rates) Bill 2018
HR Second reading debate 15/10/2018
Amends the Fair Work Act 2009 to provide that modern awards cannot be varied to reduce penalty rates or the hours to which penalties rates apply if the variation is likely to result in a reduction in the take-home pay of an employee; and provide that any such determination made by the Fair Work Commission made on or after 21 June 2017 is of no effect.

House of Representatives Removed from the Notice Paper

Fair Work Amendment (Making Australia More Equal) Bill 2018
House of Representatives Removed from the Notice Paper in accordance with (SO 42) 23/10/2018
Amends the Fair Work Act 2009 to enable the Fair Work Commission to issue a minimum entitlements order which would extend certain provisions of the Act, a modern award or an enterprise agreement to workers.

Fair Work Amendment (Better Work/Life Balance) Bill 2018
House of Representatives Removed from the Notice Paper in accordance with (SO 42) 16/10/2018
Amends the Fair Work Act 2009 to provide employees with enforceable rights to request flexible working arrangements; and provide the Fair Work Commission with the power to make flexible working arrangements orders.

Fair Work Amendment (Tackling Job Insecurity) Bill 2018
House of Representatives Removed from the Notice Paper in accordance with (SO 42) 16/10/2018
Amends the Fair Work Act 2009 to provide a process for an employee who is a casual or rolling contract employee to request to move to ongoing employment on a part-time or full-time basis; and provide the Fair Work Commission with the power to make a secure employment order.

New South Wales

Regulations

Industrial Relations (National System Employers) Amendment (Councils) Order 2018 (2018-583) — published LW 12 October 2018.

Victoria

Regulations

No 179: Labour Hire Licensing Regulations 2018
23 October 2018 - The objectives of these Regulations are— (a) to prescribe persons who are not workers for the purposes of the Act; and (b) to prescribe the circumstances in which an individual is taken to perform work as part of a business or undertaking.

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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