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.