Australia: Employment Law and Workplace Relations Monthly Update – In the media, In practice and courts, Cases and Legislation

In the media

Only About Children signs Enforceable Undertaking
Childcare company Only About Children Pty Ltd is back-paying employees more than $1.5 million and has entered into an Enforceable Undertaking with the Fair Work Ombudsman (30 March 2021). More...

Can you sack someone for refusing to take the COVID vaccine?
A Brisbane dismissal case is challenging the legality of terminating an employee for refusing to be vaccinated. A former Ozcare nurse who had a decade's tenure with the aged-care provider was sacked for refusing to receive a flu vaccination as part of the company's reaction to the COVID-19 pandemic (30 March 2021). More...

Disability service workers back-paid
The Fair Work Ombudsman (FWO) has recovered $43,204 in unpaid wages for 322 workers following an investigation into National Disability Insurance Scheme service providers in NSW and Victoria (29 March 2021). More...

Nearly $390,000 recovered for security guards
The Fair Work Ombudsman has recovered $389,982 in unpaid wages for 163 security guards following an investigation into 19 security businesses in Queensland (05 March 2021). More...

CFMMEU penalties in Queensland tops $3 million mark in ABCC cases
The Federal Court penalised the Queensland division of the Construction, Forestry, Maritime, Mining and Energy Union of Australia (CFMMEU) and four of its officials $153,510 following a series of right of entry breaches during construction of the 34-storey 180 Ann Street, Brisbane, office tower in 2014 (23 March 2021). More...

ABCC takes action against Brisbane labour hire company for failure to comply with two investigations
The ABCC has commenced Federal Circuit Court proceedings against Brisbane based company ADADN Pty Ltd alleging failures to comply with formal requests to provide documents in investigations into alleged underpayment of wages and unlawful industrial action. (19 March 2021). More...

Farm workers earning as little as $1.25 an hour, says union wage-theft report
The federal opposition says some workers are underpaid and exploited but farmers argue piece rates drive productivity and a minimum wage won't drive out "rogue operators" (19 March 2021). More...

Government abandons bulk of IR package in effort to save definition of casual work
The federal government is being forced to abandon the bulk of a controversial industrial relations bill, failing to negotiate it through the Senate. The Coalition dropped many of its proposed reforms, including a planned crackdown on wage theft, opting instead to make changes to laws affecting casual workers (18 March 2021). More...

Employment hits 13 million – recovers to pre-COVID level
Seasonally adjusted employment increased by 89,000 people between January and February 2021 according to the Australian Bureau of Statistics. Seasonally adjusted hours worked bounced back in February, increasing by 6.1 per cent, following the 4.9 per cent fall in January, when more Australians than usual took leave (18 March 2021). More...

FWO takes action against CFMMEU
The Fair Work Ombudsman has commenced legal action in the Federal Court against the CFMMEU and five of its officials for alleged adverse action and coercion at a Queensland mine (01 March 2021). More...

FWO: Statement on Crown Resorts
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 (01 March 2021). More...

Former copper mine operator penalised
The Fair Work Ombudsman has secured $23,750 in penalties in court against the former operator of a copper mine in far north Queensland (01 March 2021). More...

Published - reports, articles, speeches

Gender Equity Insights 2021: Making it a priority
Rebecca Cassells, Alan Duncan; Bankwest Curtin Economics Centre: 26 March 2021.
This report uncovers further insights about effective initiatives to improve gender equality across Australia's workplaces, by identifying the top performers who have consistently taken steps to improve gender equality outcomes over the last seven years. Read the report here.

Women's casual job surge widens gender pay gap
Alison Pennington, Centre for Future Work: 08 March 2021.
This briefing paper illustrates how Australia's recovery from the pandemic recession widened the gender pay gap, as women's jobs returned on a more part-time and casualised basis than for men. Click here to read more.

Department of Jobs and Small Business: Monthly Leading Indicator of Employment 2021
The Monthly Leading Indicator of Employment (the Indicator) has risen for the ninth consecutive month in March 2021. The Indicator's rise this month stems from gains in four of the five components. Click here to read more.

ABCC Industry Update – 10 March 2021 edition
Do you understand right of entry? Test your knowledge in the March edition of Industry Update, where we look at right of entry, delve into case studies and more.

In practice and courts

FWO: Changes to casual employment – industrial relations reforms
On 26 March 2021, the Fair Work Act 2009 was amended to change workplace rights and obligations for casual employees. The changes were made by the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021 (Amendment Act). These changes came into effect on Saturday 27 March 2021. Learn more here.

Fair Work Commission COVID-19 response – 24 March 2021
The Fair Work Commission (FWC) is taking all possible steps to ensure continued service provision to employees, employers and their representatives during the COVID-19 pandemic. Applications do not need to be made in person at a Commission office. Make an application using our online lodgment service here or download and complete a form here and send it by email, post or fax to the nearest Commission office. Read more in the Fair Work Commission's website.

FWC: Jobkeeper dispute information updated
Most of the jobkeeper provisions in Part 6-4C of the Fair Work Act 2009 (Cth) were repealed. The Fair Work Commission has updated relevant information to reflect the changes, including the jobkeeper disputes web page, Form F13A – application for the Commission to deal with a jobkeeper dispute (coronavirus economic response), and the jobkeeper disputes benchbook (29 March 2021). More...

FWC: Unfair dismissals benchbook updated
The Fair Work Commission has published an updated version of the unfair dismissals benchbook. The updated version reflects recent case law and rules change (17 March 2021). More...

FWC: Four modern awards 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 have been completed for the Building and Construction General On-site Award 2010, Joinery and Building Trades Award 2010, Mobile Crane Hiring Award 2010 and the Plumbing and Fire Sprinklers Award 201. The varied awards were published in advance and commenced operation on 1 March 2021. To access these awards, go to the modern awards list on the Commission's website (01 March 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. Click here to read more.

Cases

Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd (No 3) [2021] FCA 282
INDUSTRIAL LAW – penalty hearing – court determination of pecuniary penalties to be imposed – where employer contravened civil remedy provisions of Fair Work Act 2009 (Cth) – where employer breached term of enterprise agreement in contravention of s 50 of Fair Work Act – whether mandated overtime in new employee roster was "reasonable" – attendance at work not an indicator of assent to new roster – nature and extent of the contravening conduct – whether contravening conduct was serious – the need for deterrence in respect of compliance with enterprise agreements – consequence of "taking the odds" to a contravention – quantum of penalties to be imposed.
Fair Work Act 2009 (Cth) ss 50, 417, 545(1), 545(2), 546, 557.

Eguia v CPB Contractors Pty Ltd [2021] FCA 273
PRACTICE AND PROCEDURE – general protections court application under Fair Work Act 2009 (Cth) – application for extension of time under s 370(a)(ii) – whether applicant has satisfied the Court that an extension of time of 20 days is appropriate. Held: application for extension of time granted.

Australian Building and Construction Commissioner v Ingham (The 180 Brisbane Construction Case) (No 2) [2021] FCA 263
INDUSTRIAL LAW – penalty hearing – determination of pecuniary penalties to be imposed – where union officials contravened civil remedy provisions of Fair Work Act 2009 (Cth) – where union contravened civil remedy provision through union official's conduct – quantum of penalties to be imposed – nature and extent of the contravening conduct – whether contravening conduct was serious – whether prior contraventions found subsequent to contravening conduct should be an aggravating factor or disentitle respondents to discount – whether prior contraventions of union justified penalty in the upper range – the relevance of prior contraventions proportionality of penalty to seriousness of contravening conduct – whether divergence in application of Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 – whether contraventions by the fourth respondent involved a course of conduct under s 556 Fair Work Act 2009 (Cth) – whether involvement of senior management an aggravating factor – whether lack of contrition an aggravating factor – genuine belief – "taking the odds" – deterrence as the principal object of imposing civil penalties – whether need for specific deterrence when respondents no longer engaged in union role – where pecuniary penalties imposed on both union officials and union – whether power to make personal payment order and prevent indemnity from union enlivened by application for penalty under s 546 Fair Work Act 2009 (Cth) – whether personal payment orders appropriate.
Fair Work Act 2009 (Cth) ss 417, 500, 545(1), 545(2), 546, 550, 556, 793.
Federal Court Rules 2011 rr 8.01(1), 8.03(1), 8.03(2).

Al-Attar v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 500
INDUSTRIAL LAW – general protections – applicant employed as translator by a consulate (Consulate) pursuant to a contract of employment for a fixed term – the Consulate informed the employee before the term of his contract of employment ended that the employee's contract will not be renewed – the Consulate so informed the employee after the employee had made enquiries of the FWO, and after he made a complaint to, and made an enquiry of, the Consulate in relation to his employment, and after he had lodged an application with the FWC alleging bullying – the employee claims he was dismissed because he had made enquiries of the FWO and complaints to, and enquiries of, the Consulate in relation to his employment, and because he had lodged a bullying complaint with the FWC – whether the employee's enquiries of the FWO, complaints to and enquiries of the Consulate, and lodgement with the FWC of a bullying complaint constituted the exercise of a workplace right – whether at the time the Consulate notified the employee it would not renew the employee's contract of employment the Consulate was a prospective employer and the employee a prospective employee – whether by notifying the employee that the Consulate would not renew the employee's contract of employment the Consulate as prospective employer refused to employ the employee and therefore took adverse action against the employee as prospective employee – whether the Consulate decided not to renew the employee's contract of employment for the reason stated by the Consulate, namely, that the Consulate's policy was to employ only qualified translators which the employee was not and to eliminate the financial burden of having to pay the employee as an unqualified translator in circumstances where the Consulate also had to pay for qualified translators – the Consulate did not discharge the burden that was on it to show it decided not to renew the employee's contract of employment for the reasons it claimed it did not renew the employee's contract of employment – the Consulate as the prospective employer therefore is presumed to have taken adverse action against the employee as prospective employee because the employee had exercised his workplace rights by making enquiries of the FWO and by lodging a bullying application with the FWC.
Consular Privileges and Immunities Act 1972 (Cth).
Fair Work Act 2009 (Cth) ss 12(1), 14, 30B, 30C(1), 30D, 30G(1), 30L, 337, 339(a), 339(b), 340, 341(1)(b), 341(1)(c), 342, 360, 361(1).
Industrial Relations (Commonwealth Powers) Act 2009 (NSW).
Vienna Convention on Consular Relations Arts 1(1), 3, 35(1), 61.

Yalda v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 499
INDUSTRIAL LAW – general protections – applicant an Australian permanent resident employed as translator by a consulate (Consulate) pursuant to a contract of employment for a fixed term – the Consulate informed the employee before the term of her contract of employment ended that the employee's contract will not be renewed – the Consulate so informed the employee after the employee had made enquiries of the FWO in relation to her employment and after she had lodged an application with the FWC alleging bullying – the employee claims the Consulate dismissed her because she had made enquiries of the FWO and had lodged a bullying complaint with the FWC – whether the employee's enquiries of the FWO and lodgement with the FWC of a bullying complaint constituted the exercise of a workplace right – whether at the time the Consulate notified the employee it would not renew the employee's contract the Consulate was a prospective employer and the employee a prospective employee – whether by notifying the employee that the Consulate would not renew the employee's contract of employment the Consulate as the prospective employer refused to employ the employee and therefore took adverse action against the employee as prospective employee – whether the Consulate decided not to renew the employee's contract of employment for the reason claimed by the Consulate, namely, that the Consulate's policy was to employ only qualified translators which the employee was not and to eliminate the financial burden of having to pay the employee as an unqualified translator in circumstances where the Consulate also had to pay for qualified translators – the Consulate did not discharge the burden of showing it decided not to renew the employee's contract of employment for the reason it claimed it did not renew the employee's contract of employment – the Consulate as the prospective employee therefore is presumed to have taken adverse action against the employee as prospective employee because the employee had exercised her workplace rights by making enquiries of the FWO and by lodging a bullying application with the FWC.
Consular Privileges and Immunities Act 1972 (Cth).
Evidence Act 1995 (Cth) ss 55, 56, 57(1), 58(1).
Fair Work Act 2009 (Cth) ss 12(1), 14, 30B, 30C(1), 30D(1)(a), 30G(1), 30L, 337, 339(a), 339(b), 340, 341(1)(b), 341(1)(c)(i), 342, 357, 360, 361(1).
Federal Rules of Evidence 1975 (US) r 901(a).
Industrial Relations (Commonwealth Powers) Act 2009 (NSW).
Vienna Convention on Consular Relations Arts 1(1), 3, 35(1), 61.

Knowles v BlueScope Steel Limited [2021] FCAFC 32
INDUSTRIAL LAW – decision of the Fair Work Commission – permission to appeal to the Full Bench of the Fair Work Commission – significant error of fact – whether jurisdictional fact – power of Court to review finding by the Full Bench that error was of fact and significant.
Fair Work Act 2009 (Cth) ss 340, 341, 342, 381, 385, 386, 387, 394, 399, 400, 570, 604, 607, Divs 3, 4 Pt 3-1, 3-2.
Judiciary Act 1903 (Cth) s 39B; Workplace Relations Act 1996 (Cth).

Fair Work Ombudsman v Lam [2021] FCA 205
INDUSTRIAL LAW – application for declarations and pecuniary penalties for breaches of Fair Work Act 2009 (Cth) and Miscellaneous Award 2010 (Cth) – where Respondents employed domestic worker and nanny – quantum of penalties.
Evidence Act 1995 (Cth) s 144; Fair Work Act 2009 (Cth) Pt 2-3, ss 44, 45, 48, 62, 90, 535, 536, 545, 550, 557.

Goswami v BPL Adelaide Pty Ltd [2021] FCCA 302
INDUSTRIAL LAW – alleged contraventions and breaches of Fair Work Act – contract of employment – implied terms – repudiation – Enterprise Agreement – where employer unilaterally demoted employee and changed location of employment after incident in workplace – breaches of ss 50 and 323 of the Fair Work Act established.

Legislation

Commonwealth

Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2021
Assent Act no: 25 Year: 2021 26 March 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.

Regulations

Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Regulations 2021
19/03/2021 – these regulations amend the Fair Work (Registered Organisations) Regulations 2009 to support recent amendments to the Fair Work (Registered Organisations) Act 2009 by providing a process for part of an organisation to conduct a postal or attendance ballot.

Queensland

Industrial Relations (Tribunals) Amendment Rule 2021 (Qld)
Explanatory Memorandum
The key policy objectives of the amendments to the Industrial Relations (Tribunals) Rules 2011 (IR Rules) are to (1) align the IR Rules with amendments made to the Industrial Relations Act 2016 through the Criminal Code and Other Legislation (Wage Theft) Amendment Act 2020; and (2) create greater efficiencies in tribunal proceedings and to reflect current practice, including to respond to changes brought about by technological change. This regulation commenced on 1 March 2021.

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.