In the media
Financial sector cannot ignore modern slavery: KPMG
As the reporting deadline for the Modern Slavery Act creeps closer, KPMG and the Australian Human Rights Commission have warned that after the royal commission, banks and super funds cannot afford to risk public trust (24 February 2021). More...
Medical centre in court
The Fair Work Ombudsman has commenced legal action in the Federal Circuit Court against the operators of a medical centre in northern Melbourne (24 February 2021). More...
Huge legal case could be a body blow to the gig economy
The lawyer who successfully argued for two former Uber drivers in a UK workers' rights case against the ride-sharing app said the decision by Britain's Supreme Court will have major implications for Australia (23 February 2021). More...
Court imposed $287,500 in penalties for CFMMEU organised strike at North Queensland Stadium
The Federal Court has penalised the CFMMEU $190,000 and its official Grant Harradine $20,000 for organising unlawful industrial action against a local subcontractor from 11 March 2019 to 14 March 2019 during construction of the $293 million North Queensland Stadium (17 February 2021). More...
Melbourne retailer penalised for deliberate breaches
The Fair Work Ombudsman has secured a total of $256,000 in penalties in court, including for five "serious contraventions" under the Protecting Vulnerable Workers laws, against a Melbourne toy retailer company and its director for deliberately underpaying migrant employees (12 February 2021). More...
Full Federal Court rejects CFMMEU appeal to reduce penalties
The Full Court of the Federal Court on 4 February dismissed the CFMMEU's appeal against penalties awarded in the Palmerston Police Station matter in the Northern Territory (10 February 2021). More...
Failure to pay subcontractor for Australian Parliament House work leads to penalty
New South Wales company N-Cap Pty Ltd has been penalised $5,000 and ordered to pay its subcontractor $10,633 in outstanding payment claims following ABCC action (09 February 2021). More...
Economic recovery at risk as wages set to sink, leading economist warns
A leading economist warns labour market slack will push workers' take-home pay lower over the next two years, threatening the nascent Australian economic recovery (04 February 2021). More...
Published reports articles, speeches
The Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2021: Briefing note
Emma Dawson, Shirley Jackson: Per Capita: 12 February 2021
The COVID-19 pandemic has illustrated just how damaging job insecurity is, not only to individual workers and their families, but to society as a whole. This briefing paper lays out the Bill's provisions and Per Capita's arguments against them. Read more here.
Department of Jobs and Small Business: Monthly Leading Indicator of Employment January 2021
The Monthly Leading Indicator of Employment (the Indicator) has risen for the eighth consecutive month in February 2021. The Indicator's rise this month stems from gains in four of the five components. Read more here.
In practice and courts
FWO: Statement on Crown Resorts
1 March 2021
The Fair Work Ombudsman is conducting an investigation into Crown Resorts following its self-reported underpayments of its staff. We expect any employers that identify non-compliance to report to the Fair Work Ombudsman and fully cooperate with our investigation to ensure that employees are quickly repaid any outstanding entitlements. More...
FWO: Helping employers and employees solve problems at work
25 February 2021
Workplace problems can be resolved quickly when employees and employers work together to find a solution. We have a new section on our website to help you. Click here to read the workplace problems section. More...
FWC: Modern award extensively varied
The Fair Work Commission is extensively varying existing awards as a result of the four yearly review of modern awards. The technical and drafting matters for the Textile, Clothing, Footwear and Associated Industries Award 2010 have been completed. The varied award was published in advance and commenced operation on 1 February 2021. To access the new versions of these awards, read the Modern awards list here (01 February 2021). More...
FWC reminder: JobMaker Hiring Credit Scheme
For businesses to employ job seekers between the ages of 16 and 35 years. It enables eligible employers to receive payments for each eligible employee they hire between 7 October 2020 and 6 October 2021. The JobMaker Hiring Credit Scheme ends on 6 October 2022. The JobMaker Hiring Credit Scheme is administered by the Australian Taxation Office (ATO). Employers can register for the scheme on the ATO's website here. More...
Minimum wage increase for Group 3 awards – pay rates now available
From 1 February 2021, minimum wages in the retail, accommodation, food services and a range of other industries increased by 1.75 per cent. Our pay tools have been updated with the new rates. Find out more here.
APH Senate Inquiry
On 15 June 2020, the Senate granted the committee a further extension to report by the last sitting day in June 2021 (24 June 2021). More...
Cases
Kelly v Noonan [2021] FCA 146
INDUSTRIAL LAW – application for interlocutory relief – appropriateness of directions for the observance of union rules – applicant seeks relief under s 164 of the Fair Work (Registered Organisations) Act 2009 (Cth) and for urgent interlocutory relief against members of his organisation's National Executive – dispute about allocation of members between divisions of an organisation – whether first respondent has falsely held himself out as the secretary of his organisation – whether a meeting of an organisation's National Executive is poised to endorse a measure inconsistent with the organisation's rules – consideration of the Court's power to make an order giving directions for the performance or observance of union rules – application granted in part.
Fair Work (Registered Organisations) Act 2009 (Cth) – div 2 – pt 3 – ss 95A, 145, 164, 319 and 329.
Federal Court Rules 2011 (Cth) – rr 1.39 and 10.24.
Boyd v Glenvill Pty Ltd [2021] FCCA 265
INDUSTRIAL LAW – adverse action – whether applicant had been dismissed from employment while on sick leave by reason that he had made inquiries and complaints in relation to claims for accrued commission in contravention of s 340 of Fair Work Act 2009 (Cth) – whether applicant had been dismissed because he had been temporally absent from work because of illness in contravention of s 352 of Act – whether respondent had failed to pay amounts payable to applicant in relation to performance of work in contravention of s 323 of Act – whether presumption displaced that dismissal was taken for proscribed reasons as alleged – whether the proscribed reasons were a substantial and operative reason for termination – where focus of inquiry is upon reasons of decision-maker at time of adverse action – where decision made by a diverse number of persons – where failure to call evidence unexplained – whether inference was open that uncalled evidence would not have assisted respondent's case – where inference arose in context that respondent bore onus – where inference open in deciding whether reasonable to accept evidence of denial that proscribed reason was not a reason for termination – application upheld as to complaint and inquiry as to withholding of monies – application as to dismissal by reason of temporary absence dismissed – application as to contravention for failure to pay monies in full upon termination upheld.
INDUSTRIAL LAW – whether remedies of reinstatement or compensation appropriate – applicable principles – reinstatement ordinarily to be granted in appropriate case – reinstatement refused – measure of compensation for economic loss and general damages – failure to mitigate – discount for vicissitudes – compensation awarded.
CONTRACT – claim for accrued commissions – whether entitlement to commission crystallises at time of applicable third-party contract, annually or on a cumulative basis over period of employment – proper construction of contract – applicable relief – whether relief is in debt or damages.
Fair Work Act 2009 (Cth), ss 3, 323, 324, 336, 340, 341, 342, 352, 360, 361, 392, 545, 547.
Murphy v Innovior Pty Ltd (No 2) [2021] FCCA 258
INDUSTRIAL LAW – COSTS – application for costs brought by respondent pursuant to s.570 of the Fair Work Act 2009 (Cth) following successful summary dismissal application – whether s.570(2) discretion to order costs enlivened – whether applicant commenced proceeding “without reasonable cause” – parties exchanged without prejudice offers after proceeding commenced – lump sum costs – whether appropriate to order – indemnity costs – whether appropriate to make an indemnity costs order – not satisfied applicant's conduct warrants indemnity costs order in Fair Work context – application for costs allowed – appropriate to order lump sum – costs awarded on party-party basis.
Fair Work Ombudsman v Matcraft Pty Ltd [2021] FCCA 272
INDUSTRIAL LAW – penalty hearing – admitted contraventions – failure to comply with Compliance Notice – factors for consideration.
Crimes Act 1914 (Cth), s 4AA.
Fair Work Act 2009 (Cth), ss 539, 546, 550, 557, 716.
Federal Circuit Court Rules 2001 (Cth), r 13.03C.
Kuredale Pty Ltd v Fair Work Ombudsman [2021] FCCA 332
INDUSTRIAL LAW – application for review of compliance notice issued by respondent – whether the applicant contravened relevant agreement as alleged in the compliance notice – whether a resignation falls within the meaning of “redundancy” – interpretation of award and agreement – compliance notice confirmed.
Fair Work Act 2009 (Cth), ss 119, 123, 141, 700, 716, 717.
Fair Work Bill 2008 (Cth).
Fair Work Ombudsman v IE Enterprises Pty Ltd [2021] FCA 60
INDUSTRIAL LAW – penalty determination – contraventions of ss 45, 323(1), 535(1), 536(1), 536(3) and 557A the Fair Work Act 2009 (Cth) – failure to pay minimum rates and accord other entitlements in accordance with the Fair Work Act 2009 (Cth) and the General Retail Industry Award 2010 – consideration of principles governing the imposition of civil penalties – deliberate and systematic conduct that had significant impact on employees.
Held: Penalties proposed by the Fair Work Ombudsman reasonable and appropriate.
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The North Queensland Stadium Case) (No 2) [2021] FCA 105
INDUSTRIAL LAW – pecuniary penalties for contraventions of ss 46 and 54 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) – consideration of appropriate penalties – whether personal payment order should be made against union official where order not sought in originating application – no personal payment order made – respondents to pay applicant's costs.
Vitale v The Trustee for the Davis Bros Unit Trust [2021] FCCA 214
PRACTICE AND PROCEDURE – whether statement of claim pleads facts sufficient to disclose a cause of action – where exercise of workplace right to make inquiry alleged.
INDUSTRIAL LAW – Commonwealth – terms and conditions of employment – termination of employment – particular cases.
Fair Work Act 2009 (Cth), ss 340(1)(a), 341(1)(c)(ii), 342, 342(1), items 1(a), (b) and (c), 343, 343(1), 343(1)(a), 343(1)(b), 345(1), 358, 550, 550(2), 550(2)(a), 550(2)(c), 570(2).
One Tree Community Service Inc v United Workers' Union [2021] FCAFC 15
CONSTITUTIONAL LAW – judicial power of the Commonwealth – dispute resolution clause (cl 77) in an enterprise agreement made under the Fair Work Act 2009 (Cth) provided for binding arbitration – whether in resolving by arbitration a dispute involving the employer brought pursuant to cl 77, the Fair Work Commission was purporting to exercise judicial power – where employer was not involved in the making of the enterprise agreement but became bound by that agreement by reason of the operation of the transfer of business provisions in Pt 2-8 of the Fair Work Act – distinction between a private arbitration and the exercise of judicial power discussed – whether the source of the authority of the Fair Work Commission to arbitrate was the consent of the disputants or the sovereign power of the Commonwealth – whether only an inter parties agreement made between the disputants could provide the requisite consensual foundation for a private arbitration – whether the requisite consent of the employer was established by its voluntary assumption of the binding force of the enterprise agreement and cl 77 thereof upon the employer taking steps to trigger the transfer of business provisions in Pt 2-8.
INDUSTRIAL LAW – s 739 of the Fair Work Act – whether in resolving by arbitration a dispute pursuant to a dispute resolution clause in an enterprise agreement the Fair Work Commission was purporting to exercise judicial power. Dismissed.
Legislation
Commonwealth
Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2021
Senate 25/02/2021 – amends the Fair Work Act 2009 in relation to: defining casual employment; including a casual conversion entitlement in the National Employment Standards; providing a Casual Employment Information Statement to casual employees; offsetting casual loading amounts against claims for leave and other entitlements in certain circumstances; additional hours for part-time employees; flexible work directions; enterprise agreement making and approval processes; extending the nominal life of greenfields agreements relating to the construction of major projects; the compliance and enforcement framework; Fair Work Commission processes; and consequential amendments; Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 to provide for the cessation of certain agreement based transitional instruments on 1 July 2022; Building and Construction Industry (Improving Productivity) Act 2016 to: enable the Australian Building and Construction Commissioner to accept an enforceable undertaking in relation to a suspected remuneration-related contravention; and require the commissioner to publish certain information in relation to enforcement proceedings; Building and Construction Industry (Improving Productivity) Act 2016 and Federal Court of Australia Act 1976 to make consequential amendments; and Fair Work Act 2009 and Federal Circuit and Family Court of Australia Act 2020 to make amendments contingent on the commencement of the Federal Circuit and Family Court of Australia Act 2020.
No 10 Industrial Relations (Tribunals) Amendment Rule 2021 – 18 February 2021
This Rule is made under the Industrial Relations Act 2016. The objectives of the Rule are to provide necessary rules and guidance to regulate the practice and procedure to be followed for wage recovery processes adopted through the Criminal Code and Other Legislation (Wage Theft) Amendment Act 2020, and to make minor amendments to reflect current practice.
Victoria
Bills
Industrial Relations Legislation Amendment Bill 2021 (Vic)
Date of second reading speech: 18 February 2021.
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