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.