Australia: Workplace Relations Monthly Update - November 2018: Recent media releases, reports. cases and legislation

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

Most Read Contributor in Australia, December 2018

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.

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