Australia: Employment Law and Workplace Relations Monthly Update - In the media, in practice and courts, cases and legislation

Last Updated: 13 September 2019

In the media

Thales signs court-enforceable undertaking
A major manufacturing company has back-paid workers more than $7 million in wages, superannuation and interest, after entering into a Court-Enforceable Undertaking with the Fair Work Ombudsman (30 August 2019). More...

Operators of two Hello Juice outlets face court
The Fair Work Ombudsman has commenced legal action against the operators of two Hello Juice outlets in Victoria, alleging they underpaid 27 workers a total of almost $40,000 (29 August 2019). More...

'Massive fail': Bank teller with arthritis fights a big bank and wins
ANZ tried to force Irene Guesdon, 68, a bank teller with arthritis, to move to another branch after 22 years in Hoppers Crossing. She refused and won her battle (27 August 2019). More...

Victims to have their say on wage theft
The Labor Government is holding forums across Victoria and will consult a range of employer groups and unions to ensure the new laws are fair. The government is making the underpayment of wages, as well as the withholding of entitlements such as penalty rates, superannuation and leave a criminal offence (26 August 2019). More...

Bakers Delight suffers setback in pay agreement with staff
The national bakery chain's application to end a pay deal with employees was dismissed when its HR manager could not be contacted (25 August 2019). More...

'The mouse that roared': Cadbury workers' sick leave win could affect you
Cadbury employees win a Federal Court case against their employer to be paid sick leave for the full 12 hours of their shift rather than the work standard of 7.6 hours per day, in a decision that is expected to have ramifications across Australia (22 August 2019). More...

More pressure to fix casual 'double dipping' following $12 million class action
Pressure is mounting on the Coalition government to fix legal uncertainty over "double dipping" of casual loadings and entitlements, after the CFMEU launched a $12 million class action (21 August 2019). More...

Wage theft now a problem for high-skilled workers
Wage theft and job insecurity is no longer only a problem for low-skilled workers (19 August 2019). More...

BCA: The facts about Australia's enterprise bargaining system
We have a productivity problem that is dragging on our living standards. The Better off overall test is no doubt contributing to the weakness we are seeing in productivity growth (16 August 2019). More...

Allegations against Pioneer companies dismissed
The Fair Work Ombudsman's legal action against Pioneer Facility Services and Pioneer Contracting Services (Pioneer companies) has been dismissed following an appeal (16 August 2019). More...

WA labour-hire operator faces court
The Fair Work Ombudsman has commenced legal action in the Federal Circuit Court against WA labour-hire business, Corporation Sun Pty Ltd, and its part-owner and chief executive, Michael Le (12 August 2019). More...

Metro Trains seeks injunction to stop industrial action
The federal court will determine whether the industrial action is legal. The union's protected action ballot was approved by the Fair Work Commission (09 August 2019). More...

Calls to increase cost for lodging unfair dismissal claims
The Small Business Association of Australia is the latest to call for reform to industrial relations (09 August 2019). More...

Bus company fined after treating drivers as contractors instead of employees
Four drivers were underpaid a total of $46,012 (07 August 2019). More...

Sydney transport company penalised $89,250
The Fair Work Ombudsman has secured a penalty of $89,250 in the Federal Circuit Court against Sydney transport company Eagle Tours Pty Ltd after it misclassified bus drivers as independent contractors (07 August 2019). More...

Wages agreement terminated for airport workers who slept at terminal between shifts
A baggage handling company will no longer be able to require its employees to work split shifts (06 August 2019). More...

"Small Business Fair Dismissal Code does not work": Report
Ombudsman Kate Carnell has handed down a review of the Small Business Fair Dismissal Code, recommending a suite of changes to help small business employers meet their obligations (06 August 2019). More...

Published - reports, articles, speeches

Review of the Small Business Fair Dismissal Code
Australian Small Business and Family Enterprise Ombudsman: 06 August 2019
The Small Business Fair Dismissal Code was formed in recognition that small business owners do not have the time or expertise to navigate the complexity of the unfair dismissal system. This review report recommends a suite of changes to help small business employers (6 August 2019). More...

Department of Jobs and Small Business: Monthly Leading Indicator of Employment August 2019
The Monthly Leading Indicator of Employment (the Indicator) has fallen for the fifteenth consecutive month in August 2019, after nine consecutive monthly rises. The Indicator's fall this month is attributed to declines in four of its five components. More...

In practice and courts

FWO: Recent Federal Court decision: accrual of personal/carer's leave
On 21 August 2019, the Federal Court of Australia handed down a decision about the method of accruing and taking personal/carer's leave under the Fair Work Act 2009. More...

FWO: Family & domestic violence could be affecting your employees
Our new guide helps employers understand their workplace obligations to employees affected by family and domestic violence (August 2019). More...

FWC: Workplace Advice Service marks one-year anniversary
This month marks the one -year anniversary of the Workplace Advice Service, a free legal assistance program coordinated by the Fair Work Commission. The service is offered by the Commission as part of its ongoing efforts to improve access to justice and reduce complexity for unrepresented individuals and small business employers. Note: The Commission has recently launched a Workplace Advice Service online request form (13 August 2019). More...

FWC: Findings report published: unfair dismissal
The Findings report: unfair dismissal correspondence user testing has been released (16 August 2019). More...

FWC: Enterprise agreement update
The Fair Work Commission issued an Enterprise agreement update. It provides information on recent improvements in the Commission's processes and timeliness in dealing with enterprise agreement applications (13 August 2019). More...

FWC: Rules amendment & updated forms
The Fair Work Commission has registered the Fair Work Commission Amendment (Entry Permits and Other Measures) Rules 2019 (Rules Amendment). The Rules Amendment amended the Fair Work Commission Rules 2013 (Rules) with effect from 1 August 2019. New and updated forms incorporating changes required by the amended Rules are available on the Forms page of the Commission's website. More...

Cases

Comcare v Banerji [2019] HCA 23
Appeal allowed. Constitutional law (Cth) – Implied freedom of communication on governmental and political matters – Where Australian Public Service ("APS") Code of Conduct ("Code") included requirement in s 13(11) of Public Service Act 1999 (Cth) that employees behave in way that upholds APS Values and integrity and good reputation of APS – Where APS Values in s 10(1) of that Act included that APS is apolitical, performing functions in impartial and professional manner – Where Agency Head empowered by s 15(1) of that Act to impose sanctions on employee found to have breached Code, including termination of employment – Where employee of government Department published tweets critical of Department, its employees, policies and administration, Government and Opposition immigration policies, and members of Parliament – Where employment with Commonwealth terminated for breach of Code – Where employee claimed compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) for "injury", defined to exclude injury suffered as result of reasonable administrative action taken in reasonable manner in respect of employee's employment – Whether ss 10(1), 13(11) and 15(1) of Public Service Act impose effective burden on implied freedom – Whether burden on implied freedom justified – Whether impugned provisions for legitimate purpose – Whether provisions suitable, necessary and adequate in balance

Martin v Repeller Nominees Pty Ltd & Ors (No.2) [2019] FCCA 2102
INDUSTRIAL LAW – Hospitality Industry (General) Award 2010 – construction of award – "hotel manager" – "senior management". INDUSTRIAL LAW – Accessorial liability.
Fair Work Act 2009, ss.45, 535, 545, 550; Fair Work Regulations 2009, regs. 3.33, 3.34, 3.42

Pezzimenti v Rotary International [2019] FCCA 1854
INDUSTRIAL LAW – Fair Work – adverse action claim – complaint against supervisor relating to a Performance Improvement Plan – failure to attend meeting to discuss performance – dismissal – whether the employer had met its onus of proof concerning the reason for the dismissal considered – assessment of damages. Fair Work Act 2009 (Cth), ss.340, 342, 346, 361, 545

Fair Work Ombudsman v Lindsay F. Nelson Manufacturing Pty Limited & Anor [2019] FCCA 2151
INDUSTRIAL LAW – Alleged underpayment of annual leave and award entitlements – whether employer entitled to set-off over-award payments – whether employer failed to comply with Notices to Produce and/or had reasonable excuse for non-compliance. Fair Work Act 2009 (Cth)

Kroeger v Mornington Peninsula Shire Council [2019] FCCA 2313
INDUSTRIAL LAW – Fair Work – Applicant employed in two jobs – Applicant's claim that the Respondent failed to calculate and pay overtime on the basis of hours worked in both jobs cumulatively – consideration of Lacson – matter indistinguishable from Lacson. Fair Work Act 2009 (Cth) ss.47, 50, 52, 545.

Mondelez v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) [2019] FCAFC 138
INDUSTRIAL LAW – s 96(1) of the Fair Work Act 2009 (Cth) – calculation of entitlement to paid personal/carer's leave – meaning of the word "day"

One Tree Community Service Inc v United Voice [2019] FCA 1309
INDUSTRIAL LAW – where dispute about payment of redundancy and recognition of service of transferred employees was referred to Fair Work Commission for arbitration – employer challenged Commission's jurisdiction – Commission satisfied as to jurisdiction
INDUSTRIAL LAW – where the employer commenced proceedings in this Court challenging the Commission's jurisdiction to arbitrate – whether the new employer 'consented' to arbitration – scope of agreement to arbitrate – parties to agreement to arbitrate
CONSTITUTIONAL LAW – whether the Commission would be impermissibly exercising judicial power in arbitrating the dispute – private arbitration – whether the Commission would be infringing Ch III of the Constitution
PRACTICE AND PROCEDURE – application for interlocutory relief – whether a prima facie case established – whether balance of convenience favoured relief
Fair Work Act 2009 (Cth) ss 50, 52(1), 53(3)(a), 122(1), 182(1), 186, 186(6), 311, 311(2), 313, 313(1), 313(1)(a), 320, 562, 595(1), 595(3), 595(5), 738(b), 739, 739(4), 793

Fair Work Ombudsman v A & K Property Services Pty Ltd & Ors [2019] FCCA 2259
INDUSTRIAL LAW – Assessment of compensation – imposition of pecuniary penalties.
Fair Work Act 2009 (Cth), ss.44(1), 45, 87, 96, 535(1), 536(1), 539(2), 546(2) 550(1), 550(2), 557(1), 557(2), 557C
Fair Work Amendment (Protecting Vulnerable Workers) Act 2017
Fair Work Regulations 2009, regs.3.32, 3.33, 3.34, 3.36, 3.37

Zaki v Russells [2019] FCCA 2236
INDUSTRIAL LAW – Fair Work Act 2009.
PRACTICE AND PROCEDURE – Subpoena – objection – whether legitimate forensic purpose. Fair Work Act 2009 (Cth), ss.44, 90, 117, 119, 323, 340, 361, 535

Fair Work Ombudsman v Hu [2019] FCAFC 133
INDUSTRIAL LAW – accessorial liability – knowingly involved in – Second and Third Respondents not knowingly involved in contraventions of s 45 Fair Work Act 2009 (Cth)
PRACTICE AND PROCEDURE – appeal in the nature of a re-hearing – departure from findings of fact made by primary Judge. Fair Work Act 2009 (Cth) ss 45 – 49, 134, 138, 550,

DP World Melbourne Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2019] FCA 1331
INDUSTRIAL LAW – application for interlocutory injunctive relief – whether respondent should continue to be restrained from encouraging or organising industrial action in the form of a "go-slow" – weak prima facie case – balance of convenience – injunctions granted
EVIDENCE – hearsay – whether evidence in the nature of admissions – whether evidence of the source of the previous representations has been led – whether evidence should be excluded on discretionary grounds – evidence excluded
Evidence Act 1995 (Cth) ss 75, 81, 87, 135; Fair Work Act 2009 (Cth) ss 408, 413, 418, 420, 421, 539, 545, 550

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v O-I Operations (Australia) Pty Ltd [2019] FCA 1272
INDUSTRIAL LAW – application for interlocutory injunction – alleged adverse action – alleged failure to comply with enterprise agreement – applicants seek order restraining employer from continuing to deploy management or salaried staff to the performance of maintenance tasks – whether that deployment has deprived the applicants of the impact of protected industrial action – whether prima facie case is sufficiently strong to warrant the granting of injunctive relief – whether balance of convenience favours a grant of injunction – application granted
Fair Work Act 2009 (Cth) Pts 2-4, 3-1, 3-3, Div 6, ss 12, 50, 51, 52, 53, 54, 58, 172, 253, 340, 341, 342, 346, 347, 361, 408, 423, 426, 539, 545

Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Union Industry [2019] FCA 1265
INDUSTRIAL LAW – application for interlocutory relief – application for an injunction restraining the union from organising proposed industrial action – whether there is a prima facie case that favours injunctive relief – whether the balance of convenience favours injunctive relief – whether proposed union activity falls within the definition of protected industrial action – whether the union made misleading statements about the effect of proposed industrial action – whether proposed industrial action amounts to a threat to engage in conduct with intent to coerce particular responses – interlocutory application granted – mandatory orders made
Federal Court of Australia Act 1976 (Cth) s 23
Fair Work Act 2009 (Cth) Pts 2-4, 3-1, ss 12, 19, 341, 343, 345, 347, 348, 361, 408, 409, 414, 415, 539, 545

Director of the Fair Work Building Industry Inspectorate v CFMEU & Ors [2019] FCCA 2160
INDUSTRIAL LAW – Adverse action against independent contractor – coercion – breach of enterprise agreement – unlawful industrial action – right of entry.
Fair Work Act 2009, ss.12, 19, 50, 51, 52, 306, 340, 341, 342, 343, 348, 361, 363, 417, 481, 484, 487, 500, 503, 512, 539, 546, 793

Fair Work Ombudsman v Nobrace Centre Pty Ltd & Anor (No.2) [2019] FCCA 2144
INDUSTRIAL LAW – Penalty – failure to comply with compliance notice – consideration of appropriate penalties – where the employee is of non-English-speaking background and subject to an employer-sponsored visa – importance of deterrence – deliberate breaches – no contrition or remorse shown by the Second Respondent – consideration of whether a Second Respondent should personally pay compensation – First Respondent in liquidation – penalties and compensation to be paid by the Second Respondent.
Fair Work Act 2009 (Cth), ss.545, 546, 547, 550, 716
(1) Pursuant to section 545(1) of the Fair Act 2009 (Cth) ('Act') the Second Respondent, Dr Ari Masters ('Dr Masters'), pay to the Applicant $32,889.98

Butlin v ACA Home Improvements Pty Ltd & Anor [2019] FCCA 2145
INDUSTRIAL LAW – Contravention of s.358 of the Fair Work Act 2009 – accessorial liability established – what penalty to impose on the First and Second Respondent – whether compensation be paid to the Applicant for non-economic loss – compensation awarded to the Applicant for economic loss.

Fair Work Ombudsman v Eagle Tours Pty Limited [2019] FCCA 2099
INDUSTRIAL LAW – Breaches of a civil remedy provision of the Fair Work Act 2009 – imposition of pecuniary penalties – relevant considerations.
Fair Work Act 2009, ss.45, 539, 546, 557
(1) The Respondent pay a pecuniary penalty of $89,250 for its contraventions of the Fair Work Act 2009 declared by the Court on 29 May 2017.

Director of the Fair Work Building Industry Inspectorate v CFMEU & Ors [2019] FCCA 2160
INDUSTRIAL LAW – Adverse action against independent contractor – coercion – breach of enterprise agreement – unlawful industrial action – right of entry.

Legislation

Commonwealth
Bills

Fair Work Laws Amendment (Proper Use of Worker Benefits) Bill 2019

HR – Second reading debate 01 August 2019 –This Bill will amend the Fair Work (Registered Organisations) Act 2009 and the Fair Work Act 2009 to protect workers through greater governance and transparency of registered organisations and associated entities, in particular worker entitlement funds and gives effect to recommendations made by the Royal Commission into Trade Union Governance and Corruption (the Royal Commission).

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions