Workplace Relations Monthly Update - February 2018 - Employee Rights/ Labour Relations

In the media

ACT Government introduces bill to tackle overpayment and workplace privacy concerns
On 15 February 2018, the Workplace Legislation Amendment Bill 2018 (ACT) (the Bill) was introduced in the ACT Parliament. The Bill provides for employer deductions from an employee's salary where an overpayment has occurred (26 February 2018). More...

Court penalises CFMEU "gatekeeper" for enforcing 'no-ticket, no-start' on Melbourne construction site
The Federal Court today imposed penalties totalling $105,000 against the CFMEU and a shop steward for stopping two workers, who were not financial members of the CFMEU, from working on the Quest Apartments construction site in Melbourne (26 February 2018). More...

New legal action focuses on redundancy laws
The Fair Work Ombudsman has brought proceedings relating to redundancy entitlements, in a new legal action against services company Spotless Services Australia Limited for allegedly contravening workplace laws when it terminated the employment of three workers at Perth International Airport (27 February 2018). More...

$81,000 in penalties after Perth security company offers "lame excuse" for underpaying guards
A Perth security company has been penalised in Court for underpaying its guards more than $200,000, with a Judge saying the company's claim that it thought overpaying in relation to minimum rates would "counteract" other rates of pay was a "lame excuse" (20 February 2018). More...

Tax office staff told to dob in time-wasting colleagues in 'fraud' crackdown
The Australian Tax Office is urging staff to report colleagues who take long lunches or waste time by eating breakfast or reading newspapers at work (19 February 2018). More...

Being "too busy and lazy" to keep records results in $43,200 in penalties for massage parlour operator
The operator of a number of massage parlours in Adelaide who said he was "too busy and lazy" to keep proper records has been penalised for contraventions of record-keeping and pay slip laws, following legal action by the Fair Work Ombudsman (16 February 2018). More...

Victorian Labour Hire Licensing Bill 2017 Follows Similar Moves In QLD and SA
On Thursday 8 February 2018 the Labor Hire Licensing Bill 2017 (Vic) (the Bill) passed the Victorian Legislation Assembly and was introduced into the Victorian Legislative Council, bringing Victoria closer to the enactment of labour hire laws similar to those which have already been enacted in Queensland and South Australia (15 February 2018). More...

Australian Building and Construction Commissioner v CFMEU [2018] HCA 3: Pecuniary Penalties for Industrial Action
On 14 February 2018, the High Court handed down judgement in the case of Australian Building And Construction Commissioner v Construction, Forestry, Mining And Energy Union [2018] HCA 3. The majority of the Court allowed the appeal, which concerned the issue of whether a judge has power to order that a union not indemnify a union official against a pecuniary penalty ('a non-indemnification order'), or that a union official not seek or accept an offer of indemnity from the union in respect of a pecuniary penalty imposed on the union official ('personal payment order') (14 February 2018). More... More...

Fair Work Ombudsman Inquiry uncovers rampant exploitation of Woolworths cleaners
Cleaning contractors at 90 per cent of Woolworths' Tasmanian supermarket sites were not complying with workplace laws, a Fair Work Ombudsman Inquiry has found (14 February 2018). More...

$121,000 penalty imposed for "outrageous exploitation of a young person"
Michael Patrick Pulis, a business operator who told his employee to "seriously, f**k off..." when the worker asked when he would receive money owed to him, has been penalised $21,500 (13 February 2018). More...

Greens introduce CTH Bill to implement 10 days paid leave for domestic violence
On 5 February 2018 the Fair Work Amendment (Improving National Employment Standards) Bill 2018 (CTH) (the Bill) was introduced into the House of Representatives by Greens MP Adam Bandt. The Private Member's Bill aims to provide up to 10 days of paid family and domestic violence leave for employees (13 February 2018). More...

Coal miner denied workplace accident pay because of casual status leads class action
Simon Turner is leading a class action for BHP miners injured on the job, saying he is facing life on the street after a workplace accident at the largest coal mine in NSW left him disabled and destitute (10 February 2018). More...

Melbourne firefighters told to reject 'duplicitous' workplace agreement
The United Firefighters Union tells Melbourne firefighters to reject a new workplace agreement, saying an explanatory note that was part of the deal would give management the option to alter entitlements at any time and effectively deregulate the workplace (07 February 2018). More...

Underpayments drop as trolley collection undertaking continues
The Fair Work Ombudsman has welcomed findings of improved wage compliance and accountability in Coles' trolley collection network, with 91 per cent of the supermarket giant's stores now with 'in-house' trolley collection (07 February 2018). More...

In practice and courts

ROC reminder: New disclosure document requirements commencing on 29 January 2018
The purpose of this notice is to advise you of the new requirements for disclosure documents, introduced by the Fair Work Amendment (Corrupting Benefits) Regulations 2017, which commenced on 29 January 2018, Disclosures must now be made using the new prescribed form in Schedule 2.1A of the Fair Work Regulations 2009 (see r.2.06AA(1)(b) & 2(b), Fair Work Regulations). More...

Cases

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case) [2018] FCAFC 15
INDUSTRIAL LAW – appeal from a judgment of the Federal Court of Australia where certain findings of fact were made by the trial judge in relation to the conduct of a permit holder – where the trial judge found that the permit holder did not "act in an improper manner" within the meaning of s500 of the Fair Work Act 2009 (Cth) – whether the trial judge erred at law by failing to find that the permit holder had acted in an improper manner.
Building Construction Industry (Consequential and Transitional Provisions) Act 2016 (Cth) Sch 2 cl 19; Fair Work Act 2009 (Cth) ss12, 480, 487, 489, 495, 497, 498, 500, 512, Pt 3-4; Fair Work (Building Industry) Act 2012 (Cth) ss51, 51(2), 51(3), 51(4), 51(5); Federal Court of Australia Act 1976 (Cth) ss4, 24(1); Occupational Health and Safety Act 2004 (Vic).

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3
Leave is granted for the appellant to amend the notice of appeal in the manner set out in the proposed amended notice of appeal exhibited to the affidavit of Brendan Charles dated 10 November 2017.
Industrial law – Pecuniary penalties – Where union official contravened civil remedy provision of Fair Work Act 2009 (Cth) – Where union contravened civil remedy provision through union official's conduct – Where s546 of Fair Work Act provides court can order person to pay pecuniary penalty – Where s545(1) of Fair Work Act provides court can make any order it considers appropriate if satisfied person contravened, or proposes to contravene, civil remedy provision – Where pecuniary penalties imposed on both union official and union – Whether s545(1) or s546 of Fair Work Act or s23 of Federal Court of Australia Act 1976 (Cth) empowers court to order that union not indemnify union official against pecuniary penalty – Whether s545(1) or s546 of Fair Work Act or s23 of Federal Court of Australia Act empowers court to order that union official not seek or accept indemnity or contribution from union in respect of pecuniary penalty.

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Bendigo Theatre Case) [2018] FCA 122
INDUSTRIAL LAW – alleged contraventions of ss497 and 500 of the Fair Work Act 2009 (Cth) at a building site in Bendigo by officers of the CFMEU – whether there is evidence to support findings of the alleged contraventions – whether the CFMEU is liable for any contraventions committed by its officers pursuant to ss550 or 793 of the Fair Work Act 2009 (Cth) or pursuant to principles of common law vicarious liability.

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Quest Apartments Case) (No 2) [2018] FCA 163
INDUSTRIAL LAW – where the Federal Court had found contraventions of ss346(b), 348 and 349(1)(a) of the Fair Work Act 2009 (Cth) by an officer of the Construction, Forestry, Mining and Energy Union at a construction site – where the officer was found, among other things, to have knowingly misrepresented to workers that they could not work on the site unless they paid fees to the union – where the union was found to be liable for the contraventions pursuant to ss363 and 793 of the Fair Work Act 2009 (Cth) – consideration of appropriate penalties – consideration of s556 of the Fair Work Act 2009 (Cth) and the need to avoid civil double jeopardy – consideration of whether any penalty imposed upon the officer ought to be wholly suspended.

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) [2018] FCA 83
INDUSTRIAL LAW – Fair Work Act 2009 (Cth) (FW Act), ss346(b), 347, 348 – where an officer of an industrial association identified deficiencies in the facilities for workers at a workplace – where workers, following a meeting with officers of the industrial association, took industrial action when the employer did not improve the facilities at the workplace – whether the identification of deficiencies is to be understood as a request to improve the facilities – whether the failure by the employer to accede to the request of the industrial association amounted to engaging in industrial activity under ss347(b)(iv) or 347(b)(v) for the purposes of ss346(b) and 348 – whether refusal of an industrial claim can be said to be a refusal to "represent or advance the views, claims or interests" of the industrial association for the purposes of s347(b)(v) – refusal of a claim is an action of a different character to refusing to "represent or advance the views, claims or interests" of the industrial association – consideration of preferred construction of s347(b)(iv) of the FW Act – where context and purpose of provision suggest that ss347(b)(i)–(v) directed at the protection of freedom of association – reference to "lawful request ... or requirement" to be read as request or requirement to associate in or with the industrial association – an industrial request made by an industrial association to an employer lacks the necessary nexus to freedom of association to fall within the scope of s347(b)(iv) – contrary view in Esso Australia Pty Ltd v The Australian Workers' Union [2015] FCA 758 and Australian Building and Construction Commissioner v Australian Manufacturing Workers' Union (The Australian Paper Case) [2017] FCA 167 not plainly wrong, single judge bound to follow – elements of ss346(b) and 348 made out against officers – liability of industrial association established via s793.
STATUTORY INTERPRETATION – Acts Interpretation Act 1901 (Cth) s15AB – the circumstances in which reference may be made to extrinsic materials, including an explanatory memorandum.

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42
INDUSTRIAL LAW – exercise of State or Territory OHS rights without an entry permit – permit holder hindering or obstructing or otherwise acting in an improper manner – adverse action – coercive conduct – where subcontractor had a "workplace right" to initiate a process of bargaining for a new enterprise agreement – where union engaged in campaign to secure site allowances in enterprise agreements – accessorial liability – whether an individual can be an accessory to the conduct of a union which arose by reason of the individual's conduct being deemed to be the conduct of the union – whether union can be deemed to have contravened a provision of the Fair Work Act 2009 (Cth) which the union itself could not have contravened – whether defect in or absence of a Notice of Employee Representational Rights precludes the existence of a "workplace right" to initiate a process of bargaining for a new enterprise agreement – whether applicant must prove that coercive conduct was taken in personal capacity or on own behalf.
PRACTICE AND PROCEDURE – privilege against self- incrimination – where Respondents reserve right to claim privilege – split hearing – where protracted adjournment after election to allow for the filing of evidence.

Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2018] FCA 125
INDUSTRIAL LAW – where employees' salaries were reduced following reduction in shift lengths – finding that employees were underpaid – finding that employer contravened enterprise agreement. Fair Work Act 2009 (Cth) s 50.

Fair Work Ombudsman v Phua & Foo Pty Ltd [2018] FCA 137
INDUSTRIAL LAW - penalty determination - admitted contraventions of s45 of the Fair Work Act 2009 (Cth) - failure to pay minimum rates, casual loading and weekend penalty rates in accordance with the FW Act and the Restaurant Industry Award 2010 – appropriate penalty.

Fairwork Ombudsman v Nobrace Centre Pty Ltd & Ors [2018] FCCA 378
INDUSTRIAL LAW – Applicant arrived in Australia on working holiday visa – visa due to expire – applicant seeks and obtains employer's sponsorship on application for Temporary Work (Skilled) Visa (subclass 457) – criterion of visa application requires applicant to receive remuneration not less than $50,000 per annum – sham employment contract executed – employee pay and PAYG income tax recorded and calculated according to sham – net pay calculated and paid at lower hourly rate – employee not passive participant in sham – employee requests and obtains employer's support for permanent visa – sale of business – employment terminated – sponsorship visa withdrawn – Ombudsman's investigation – employee's rate of pay below that prescribed by Award – other entitlements not paid. INDUSTRIAL LAW – Contravention of Fair Work Act 2009 (Cth) – contravention of Fair Work Regulations 2009 (Cth) – failure to pay minimum entitlements prescribed by Health Professionals and Support Services Award 2010 – failure to pay minimum wage prescribed by award and other entitlements – unauthorised deductions from employee's pay – failure to keep records – false and misleading records – failure to provide pay slips within one day of payment – failure to comply with notice to produce – whether reasonable excuse for non-compliance.
ACCESSORIAL LIABILITY – Involvement in contravention – necessary that secondary participant had sufficiently direct and practical connection to the wrongdoing – sufficient to establish that participants were aware of material facts and circumstances constituting the contraventions – not necessary for participant to have turned their mind to legal characterisation or to the legality of the principal's conduct – not necessary for participant to have intended result of principal's conduct or that it might cause injury or damage – whether honest ignorance that award did not apply – intentional participant – actual knowledge – knowledge of essential elements of facts comprising primary contravention – knowledge that an award conferred certain entitlements – knowledge of the name of the particular award not necessary – knowledge of precise amount prescribed by award not necessary – knowledge of the rates being paid – wilful blindness – deliberate abstention from inquiry – negligence or recklessness not sufficient – combination of suspicious circumstances and failure to make inquiry may suffice – whether knowledge that system of payment of employee entitlements was non-compliant with Act, Regulations or Award grounds involvement in a contravention – relief – declarations granted – existence of threat of continuation of conduct not proved – no utility in injunctions. ACCESSORIAL LIABILITY – Involvement in contravention – necessary that secondary participant had sufficiently direct and practical connection to the wrongdoing – sufficient to establish that participants were aware of material facts and circumstances constituting the contraventions – not necessary for participant to have turned their mind to legal characterisation or to the legality of the principal's conduct – not necessary for participant to have intended result of principal's conduct or that it might cause injury or damage – whether honest ignorance that award did not apply – intentional participant – actual knowledge – knowledge of essential elements of facts comprising primary contravention – knowledge that an award conferred certain entitlements – knowledge of the name of the particular award not necessary – knowledge of precise amount prescribed by award not necessary – knowledge of the rates being paid – wilful blindness – deliberate abstention from inquiry – negligence or recklessness not sufficient – combination of suspicious circumstances and failure to make inquiry may suffice – whether knowledge that system of payment of employee entitlements was non-compliant with Act, Regulations or Award grounds involvement in a contravention – relief – declarations granted – existence of threat of continuation of conduct not proved – no utility in injunctions.

Fair Work Ombudsman v Tac Pham Pty Ltd [2018] FCA 120
INDUSTRIAL LAW – the first respondent operated a restaurant - the first respondent contravened the Restaurant Industry Award 2010 by underpaying its part-time employees – the respondents agreed a statement of facts and made admissions of contraventions of the Fair Work Act 2009 (Cth) – appropriate pecuniary penalty.

SDAEA v Arora; SDAEA v Arora Markets Pty Ltd & Ors [2018] FCCA 85
INDUSTRIAL LAW – Fair Work Act contraventions – non payment of employee entitlements – Easter Sunday day in lieu payment and superannuation – failure to remit union dues deducted from wages – facts admitted – declarations made – consideration of claims for compensation, interest and penalties.

Australian Workers' Union v BlueScope Steel (AIS) Pty Ltd [2018] FCA 80
INDUSTRIAL LAW – alleged contravention of s50 of the Fair Work Act 2009 (Cth) – whether employer contravened a term of enterprise agreement by failing to make superannuation contributions – whether a term of an enterprise agreement must be a source of legal obligation to make out a contravention of s50 of the Fair Work Act 2009 (Cth) – whether superannuation legislation the sole source of legal obligation to make superannuation contributions – whether clause of enterprise agreement related to superannuation contributions the source of an independent legal obligation to make contributions.
SUPERANNUATION – construction and application of the terms "ordinary time earnings" and "ordinary hours of work" in s6(1) of the Superannuation Guarantee (Administration) Act 1992 (Cth) – where employees paid either an annualised or aggregate salary – where annualised and aggregate salary included components for additional hours and public holidays – where employees required to work additional hours and public holidays – whether additional hours component of an annualised salary were "ordinary time earnings" – whether public holiday component of either an annualised or aggregate salary were "ordinary time earnings" – whether employees in fact worked additional hours and public holidays as "ordinary hours of work".

Kumar v Consulate General of India, Sydney [2018] FCCA 7
INDUSTRIAL LAW – Fair Work – Claim for payment under the Clerks – Private Sector Award 2010 – application of the award to a foreign government employer considered.

Australian Building and Construction Commissioner v O'Connor (No 3) [2018] FCA 43
EVIDENCE – whether leave should be granted for a witness to revive their memory under s32(1) of the Evidence Act 1995 (Cth) – whether the matters in s 32(2) of the Evidence Act are satisfied – whether leave should be granted for a witness to read aloud part of their evidence in accordance with s32(3) of the Evidence Act – whether any of the factors listed under s192(2) of the Evidence Act lead to the conclusion that leave for a witness to revive their memory under s32(1) of the Evidence Act should be refused – whether evidence ought to be excluded or limited in its use under ss135 or 136 of the Evidence Act – whether exceptions to the hearsay rule apply under ss63 and 64 of the Evidence Act.
INDUSTRIAL LAW – whether the first respondent was seeking to exercise rights under Part 3-4 of the Fair Work Act 2009 (Cth) – whether the first and third respondents contravened ss348, 355 and 500 of the Fair Work Act – whether the second respondent contravened ss348 and 355 of the Fair Work Act – whether the third respondent is liable for a contravention of s500 of the Fair Work Act by reason of ss363 and 793 of the Fair Work Act – whether the second and third respondents contravened s550 of the Fair Work Act – whether each of the respondents ought to pay pecuniary penalties under s546 of the Fair Work Act.
COSTS – whether the applicant is liable to pay the respondents' costs of an adjournment pursuant to s43 of the Federal Court of Australia Act 1976 (Cth) and s570 of the Fair Work Act.

Registered Organisations Commissioner v Transport Workers' Union of Australia [2018] FCA 32
INDUSTRIAL LAW – civil penalty proceedings – admitted contraventions by Respondent of certain provisions of Fair Work (Registered Organisations) Act 2009 (Cth) – other contested allegations of contravention of statute – consideration of whether contested allegations made out – consideration of appropriate penalty in circumstances.
STATUTES – Fair Work (Registered Organisations) Act 2009 (Cth) – admitted contraventions of s231(1) by failing to keep copy of register of members as it stood on 31 December each year in respect of NSW Branch and WA Branch of Respondent.
STATUTES – Fair Work (Registered Organisations) Act 2009 (Cth) – admitted contraventions of s172(1) by failing to remove non-financial members from register of members in respect of NSW Branch of Respondent.
STATUTES – Fair Work (Registered Organisations) Act 2009 (Cth) – contested allegation that Respondent contravened s231(2) by failing to keep copy of part of register of members comprised of roll of voters in respect of Queensland Branch of Respondent on day before roll closed.
STATUTES – Fair Work (Registered Organisations) Act 2009 (Cth) – contested allegation that Respondent contravened s235(2) by failing to make available to Delegate of Applicant copy of part of register of members comprised of roll of voters in respect of Queensland Branch of Respondent on day before roll closed.

The FWC Bulletin
This weekly update lists current FWC decisions:
Volume 7/18 22 February 2018
Volume 6/18 15 February 2018
Volume 5/18 8 February 2018
Volume 4/18 1 February 2018

Legislation

Commonwealth

Bills introduced into Parliament

Fair Work Amendment (Protecting Take Home Pay of All Workers) Bill 2017

House of Representatives Removed from the Notice Paper in accordance with (SO 42) 13 February 2018.
Amends the Fair Work Act 2009 to: ensure that penalty rates in a modern award cannot be varied to make the penalty rate lower than that in force under the award on 30 June 2017; provide that any such determination made by the Fair Work Commission made on or after 22 February 2017 is of no effect; and ensure that penalty rates cannot be reduced in any future greenfields or non-greenfields enterprise agreement if an employee is worse off than they would have been under the award, by virtue of the fact that the employee works only or mainly on days on which penalty rates are paid.

Fair Work Amendment (Improving National Employment Standards) Bill 2018
House of Representatives Second reading moved 05 February 2018. Amends the Fair Work Act 2009 to amend the National Employment Standards to enable an employee who experiences family or domestic violence to take up to 10 days paid family and domestic violence leave per year or 2 days of unpaid family and domestic violence leave for each permissible occasion.

New South Wales

Bills introduced Non-Government – week ending 09 February

Industrial Relations Amendment (Contracts of Carriage) Bill 2018

Victoria

Bills

Labour Hire Licensing Bill 2017
Council - 2nd reading (passed Assembly) 08 February 2018.

Queensland

Subordinate Legislation as made – 23 February 2018
No 18: Industrial Relations Regulation 2018
The purpose of the Regulation is to give full effect to certain provisions in the Industrial Relations Act 2016. Various sections of the IR Act permit certain content or additional direction to be prescribed by regulation. Matters included in the Regulation are generally those considered to be too technical or detained to be included in corresponding provision of the primary legislation. The Regulation sets out requirements and procedures for elements of the IR Act, including: authorisation of industrial officers; recovery of overpaid wages; fees and charges of private employment agents, and management of registered industrial organisations, including the conduct of elections, requirements for financial policies, reporting and procedures for amalgamations and withdrawals. The Regulation also declares certain employers not to be employers covered by the national system as set out in 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.