In the media
Penalty for newspaper director
The former director of a Sydney newspaper publisher has
been penalised after threatening and later sacking a journalist who
sought assistance from the Fair Work Ombudsman (28 November 2018).
More...
Important support for retrenched workers
The Coalition Government has agreed its first partnerships
under the innovative Stronger Transitions package, partnering with
two Melbourne businesses to deliver training and support to workers
before retrenchment, helping them to move to new jobs sooner (27
November 2018). More...
JB Hi-Fi acts to improve workplace practices
The Fair Work Ombudsman has published a report on its
compliance partnership with Australian home entertainment and
consumer electrical retailer, JB Hi-Fi Group Pty Ltd (23 November
2018). More...
Victims of 'sham contracting' launch one of the
biggest class actions in Australia
Allegations of sham contracting are at the centre of an
"unprecedented" class action involving thousands of
subcontractors working for ISGM, a workforce management company
which supplies staff for Telstra, Foxtel and NBN Co (22 November
2018). More...
Harvest Trail Inquiry recovers $1 million for
workers
A Fair Work Ombudsman Inquiry into workplaces along
Australia’s Harvest Trail has found widespread
non-compliance, with inspectors recovering more than $1 million in
unpaid wages for over 2,500 workers.(22 November 2018). More...
'Epidemic of time theft': Australians work two
months unpaid overtime a year
Australians are working an average of six hours’
unpaid overtime a week, a total of $106bn of free work given to
employers every year (21 November 2018). More...
What's the point of a workplace sexual harassment
inquiry if no-one is allowed to talk?
The Human Rights Commission wants employers to temporarily
lift confidentiality agreements so that workers can give evidence
to its ongoing inquiry into workplace sexual harassment (20
November 2018). More...
Improved compliance for food franchisor
The Fair Work Ombudsman has published a report on its
compliance partnership with Retail Zoo Pty Ltd, which owns the
Boost Juice, Salsa’s Fresh Mex Grill and Cibo Espresso retail
food brands (16 November 2018). More...
Surge in full-time jobs
The latest Australian Bureau of Statistics
(ABS) jobs figures show the economy added more
than 300,000 jobs in the past year, including 238,800 new full-time
jobs. Full-time employment now stands at a record high of
8,703,700. The seasonally adjusted unemployment rate was steady in
October, at 5.0 per cent, and is at its equal lowest rate since
June 2011. Seasonally adjusted employment increased by 32,800 to
stand at a record high of 12,671,500 (15 November 2018). More...
Wages heading in the right direction
The Australian Bureau of Statistics (ABS)
data shows that wages rose by 0.6 per cent over the September
quarter to be 2.3 per cent higher through the year. Minister for
Jobs and Industrial Relations, the Hon Kelly O’Dwyer said the
results are good news for Australian workers (14 November 2018).
More...
Government proposes to double the value limit available
under employee share schemes
The Government is simplifying the current regulatory
framework, reducing the time and cost burden for businesses –
an initiative that is particularly important for start-ups in early
stages of growth. The current regulatory framework is too complex
and fragmented and ultimately discourages businesses –
particularly, small businesses – from offering employee share
schemes (13 November 2018). More...
New technology to shine a light on gender pay gap
The Government will provide $8 million for the Workplace
Gender Equality Agency (WGEA) to upgrade its
reporting and data management system to improve reporting on
Australia’s workplace gender equality (12 November 2018).
More...
Eight CFMMEU officials allegedly breach right of entry
laws at Toowoomba Second Range Crossing project
The ABCC has commenced proceedings in the Federal Court
against the CFMMEU and eight of its officials after they allegedly
entered the Toowoomba Second Range Crossing Project unlawfully (08
November 2018). More...
Published - reports, articles, papers
Protecting
flexibility in a dynamic economy: A critique of the Victorian
government’s regulatory agenda
Kurt Wallace; Institute of Public Affairs: 23 November
2018
This paper examines current or proposed changes to the sharing
economy, regulations hitting the labour hire industry, proposals to
tackle ‘wage theft’, and the introduction of industrial
manslaughter laws, in the context of the rapid growth of the
Victorian public sector since 2014.
Under the
employer’s eye: Electronic monitoring and surveillance in
Australian workplaces
Troy Henderson, Tom Swann, Jim Stanford; Centre for Future
Work: 21 November 2018
This special report looks at the use of digital surveillance and
monitoring in Australian workplaces. 70 per cent of respondents
said their employers use at least one form of digital surveillance
or monitoring, including cameras, GPS tracking, monitoring internet
or social media activity or counting keystrokes.
Department of Jobs and Small
Business: Monthly leading indicator of employment - November
2018
The indicator has fallen for the eighth consecutive month
in November 2018, following a rise of seven consecutive months.
Cyclical employment also declined in November 2018, following a
small rise in the previous three months.
In practice and courts
FWO: New flexible working arrangements rules
From 1 December 2018, all modern awards will include new
rules about requests for flexible working arrangements. Learn more
about these upcoming changes. More...
FWO: Changes to penalty rates in the Retail Award
On 1 November 2018, changes were made to penalty rates in
the Retail Award affecting shiftworkers working Sundays and casuals
working at certain times. Find out if and how these changes affect
you. 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 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
Auimatagi v Australian Building
and Construction Commissioner [2018] FCAFC
191
INDUSTRIAL LAW – Fair Work – Work Health and
Safety – whether John Holland Pty Limited had a workplace
right – whether John Holland Pty Limited exercised a
workplace right – whether the appellants engaged in adverse
action within the meaning of section 342 and item 7(a) of the
Fair Work Act 2009 (Cth) – whether the appellants
engaged in adverse action within the meaning of section 342 and
item 7(c) of the Fair Work Act 2009 (Cth) – whether
the appellants contravened section 340 of the Fair Work Act
2009 (Cth) – the reverse onus provided for in section
361 of the Fair Work Act 2009 (Cth) – whether the
first appellant engaged in action in contravention of section 343
of the Fair Work Act 2009 (Cth) – coercion –
whether conduct was unlawful, illegitimate or unconscionable
– penalties manifestly excessive – appeal allowed.
Fair Work Ombudsman v F.L. Press
Pty Ltd & Anor (No.3) [2018] FCCA
3339
INDUSTRIAL LAW – Breaches of civil remedy provisions
of the Fair Work Act 2009 – penalties –
pecuniary penalties – relevant considerations. Acts
Interpretation Act 1901, s.23; Fair Work Act 2009,
ss.340, 342, 557.
Transport Workers' Union of
Australia v Registered Organisations Commissioner [No
2] [2018] FCAFC 203
INDUSTRIAL LAW – Admitted contraventions by
appellant of certain provisions of the Fair Work (Registered
Organisations) Act 2009 (Cth) – departure by primary
judge from the parties’ common position that a single penalty
should be imposed for the contraventions of s 172(1) and a single
penalty should be imposed for the contraventions of s 231(1)
– failure to disclose proposed departure from that common
position – cannot be said that giving the appellant the
opportunity to respond to proposed departure could not have changed
outcome – procedural fairness – refixing of
penalties.
Willigen v The Geelong Truck
Company & Anor [2018] FCCA
3374
INDUSTRIAL LAW – Small claim – claim for
recovery of compensation in respect of unpaid wages, accrued annual
leave, commission and bonus – leave granted for counsel to
appear for respondents – applicant employed by respondents as
General Manager – applicant consulted Fair Work Ombudsman
before resigning – applicant gave four weeks’ notice of
resignation– respondents contend employment terminated by
mutual agreement – respondents contend termination effected
by email transmitted from applicant’s computer –
applicant had had left workplace – no agreement to terminate
contract of employment prior to notice period – applicant
absent from work during notice period – medical certificates
provided for absence – applicant paid accrued entitlements as
at date respondents contend employment terminated –
respondents unilaterally deducted ~ $1,100 from applicant’s
pay – applicant made demands for payment of outstanding wages
– respondents contend transmission of employment – no
evidence of transmission of employment –change in duties
– constructive dismissal of employment – applicant
entitled to be paid wages in lieu of notice.
INDUSTRIAL LAW – Commission – Applicant claimed
entitled to commission – disagreement as to amount of
commission owed – applicant claimed commission owed for 26
transactions – applicant conceded some claims – dispute
as to whether applicant earned commission for certain transactions
– applicant’s efforts a real and effective cause of
sales giving rise to entitlement to commission – calculations
of commission adjusted on multiple occasions – respondents
claimed entitlement to adjust claim for commission on account of
unpaid conquest payments – applicant not affected by
non-payment of conquest payments – respondents conceded
certain commission claims – applicant presented with cheque
in court – applicant owed balance of unpaid commission.
INDUSTRIAL LAW – Bonus – applicant claimed entitlement
to balance of $10,000 bonus paid in instalments as agreed in
meeting with sales team – respondents claimed bonus not
payable because criteria not met – respondents’ denial
undermined by payment of first instalment to applicant –
respondents contended bonus payable by another employer –
bonus payable. Fair Work Act 2009 (Cth), ss.117, 323,
548.
Visy Board Pty Ltd v Automotive,
Food, Metals, Engineering, Printing and Kindred Industries
Union [2018] FCA 1799
INDUSTRIAL LAW – Admitted contraventions of ss 346
and 417 of the Fair Work Act 2009 (Cth) – making of
declarations.
Communications, Electrical,
Electronic, Energy, Information, Postal, Plumbing and Allied
Services Union of Australia v Electrix Pty Ltd
[2018] FCA 1879
INDUSTRIAL LAW – Application for interlocutory
injunction requiring respondent to reinstate applicant in
employment – where applicant’s employment was
terminated on a summary basis – where applicant alleges
respondent took adverse action because a workplace right was
exercised – where respondent alleges that applicant breached
Code of Conduct – application allowed. Fair Work Act
2009 (Cth) ss 340(1), 341(1), s 342(1), and 361(1).
Christy v Bradley
[2018] FCCA 3207
INDUSTRIAL LAW – SMALL CLAIMS – Hair and
Beauty Industry Award 2010 – consideration of
applicant’s classification prior to apprenticeship –
consideration of hours worked by applicant – underpayment of
wages. Fair Work Act 2009, s.548; Fair Work Regulations
2009, reg 4.01.
Australian Building and
Construction Commissioner v Construction, Forestry, Maritime,
Mining and Energy Union (Geelong Grammar School Case)
[2018] FCA 1698
INDUSTRIAL LAW – Application for declarations to be
made that respondents engaged in conduct in contravention of s 500
of the Fair Work Act 2009 (Cth) and for pecuniary
penalties to be imposed in relation to conduct alleged –
question of liability to be determined first and separately –
whether second respondent as a permit holder exercising or seeking
to exercise rights in accordance with Pt 3-4 of the Fair Work
Act 2009 (Cth) intentionally hindered or obstructed persons
working on a construction site – whether second respondent as
a permit holder exercising or seeking to exercise a right under Pt
3-4 of the Fair Work Act 2009 (Cth) otherwise acted in an
improper manner – contraventions of s 500 established on
evidence.
Al-Hakim v Toyoor Al Jannah Pty
Ltd & Ors [2018] FCCA 3184
INDUSTRIAL LAW – Whether applicant was initially
engaged as an employee or independent contractor – whether at
the time the applicant was initially engaged a representation was
made that she would be engaged under a contract of services to
perform work under that contract as an independent contractor
– no misrepresentation – whether applicant was covered
by award during entire period of engagement by the first respondent
– whether first respondent contravened award and therefore
s.45 of the Fair Work Act 2009 (Cth) (FW
Act) by not making superannuation contributions –
whether first respondent contravened s.44 of the FW by failing to
pay the applicant at the end of her employment, contrary to s.90(2)
of the FW Act, annual leave that had accrued but not taken –
whether first respondent contravened s.340 of the FW Act –
whether first respondent dismissed the applicant from her
employment or whether the applicant voluntarily resigned –
applicant voluntarily resigned – whether first respondent
contravened s.536 of the FW Act by not providing payslips to
applicant – whether second and third respondents involved in
first respondent’s contraventions of s.44, s.45, and s.536 of
the FW Act.
Legislation
Commonwealth
Fair Work Amendment (Family and
Domestic Violence Leave) Bill 2018
HR Second reading debate 29/11/2018
Amends the Fair Work Act 2009 to insert an entitlement in
the National Employment Standards to five days of unpaid family and
domestic violence leave in a 12-month period.
Modern Slavery Bill
2018
Senate Third reading agreed to 28/11/2018
Establishes a Modern Slavery Reporting Requirement to 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.
Corporations Amendment
(Strengthening Protections for Employee Entitlements) Bill
2018
Senate Second reading agreed to 12/11/2018
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 agreed to 12/11/2018
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.
Equal Pay Standard Bill
2018
Introduced HR 26/11/2018
This bill seeks to address the gender pay gap in Australia,
emulating world-first amendments to Iceland’s Equal
Status of Women and Men Act in 2017. It provides for a
mechanism whereby employers that employ 25 or more people must
obtain certification that they are paying men and women equally.
The bill seeks to establish a stand-alone scheme for equal pay
certification that will operate in addition to all current
statutory requirements, including the Workplace Gender Equality
Act 2012, the Fair Work Act 2009 and the Sex
Discrimination Act 1994.
Fair Work Amendment (Restoring
Penalty Rates) Bill 2018 [No. 2]
Introduced Senate 14/11/2018
The Bill 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. It will also prevent
determinations arising from the Fair Work Commission decision 4
yearly review of modern awards—Penalty Rates (AM2014/305)
from taking effect. The Bill preserves the independence of the Fair
Work Commission but appropriately guides the exercise of its
discretion to ensure wages are not cut.
Regulations
Fair Work (State Declarations
— employer not to be national system employer) Endorsement
2018 (No.2)
8/11/2018 - This instrument endorses a declaration by the
New South Wales Minister for Industrial Relations that certain
named local councils are not national system employers for the
purposes of the Fair Work Act 2009.
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.