In the media
NSW contract cleaning business in court
The Fair Work Ombudsman has commenced legal action against
a contract cleaning business located in the Hunter region of New
South Wales and its director (30 September 2021).
More...
Window and door construction business in court
The Fair Work Ombudsman has commenced legal action in
court against the operators of a Melbourne-based company that makes
aluminium windows and doors (28 September 2021).
More...
FWC ruling on mandatory vaccines
A recent appeal to the full bench decision of the Fair
Work Commission has confirmed the fairness of a dismissal of an
employee for failing to comply with a vaccination requirement. Ms
Kimber appealed her termination by Sapphire Coast Community Aged
Care for refusing to comply with a requirement to be vaccinated
against influenza. At first instance, the FWC backed the
company's decision to dismiss Ms Kimber. This decision has now
been upheld by a majority of the full bench that dismissed the
former Sapphire worker's application to appeal. Despite the
ruling, one judge – FWC deputy president Lyndall Dean –
had a dissenting opinion over the matter and described Kimber's
situation as injustice (28 September 2021).
More...
New support for Parliamentary workplaces
A support service for staff and Parliamentarians who work
in Commonwealth Parliamentary workplaces has been established,
along with new independent workplace complaints mechanisms. Further
information on the PWSS can be accessed here (27 September 2021).
More...
WA labour hire company and contractor penalised $29,000
for age discrimination
The Federal Court has penalised West Australian labour
hire company, CoreStaff WA Pty Ltd, $20,000 and a WA based
contractor, Gumala Enterprises Pty Ltd, $9,000. CoreStaff and
Gumala Enterprises were found to have discriminated against a
worker when they refused to hire a qualified 70 year old grader
because of his age (24 September 2021).
More...
ABCC statement regarding recent events in Victoria
The ABCC is pursuing lines of enquiry and is responding to
a number of mandatory notifications required by the Building Code
advising of unlawful industrial action on Melbourne building and
construction sites in recent days (22 September 2021).
More...
CFMMEU and eight officials penalised $121,000 for
unlawfully entering Toowoomba second range crossing project
The Federal Court has penalised the CFMMEU and eight of
its officials $121,000 for 36 contraventions of right of entry laws
at Queensland's Toowoomba second range crossing project in 2018
(22 September 2021).
More...
Enterprise bargaining decline confirms reform
needed
Without an overhaul of our enterprise bargaining system,
Australia risks a slow and painful recovery from the COVID-19
crisis. According to the latest trends in Federal enterprise
bargaining report from the Attorney-General's Department, in
June this year less than half the number of private employers were
employing under in-term enterprise agreements than in 2010 (20
September 2021).
More...
CFMMEU Queensland state secretary Michael Ravbar loses
right to enter building sites
The Queensland state secretary of the CFMMEU, Michael
Ravbar, has abandoned his application to renew his right of entry
permit. Mr Ravbar is no longer authorised to exercise entry rights
in accordance with the Fair Work Act 2009 (06 September 2021).
More...
Court action for alleged cashback arrangement
The Fair Work Ombudsman has commenced legal action against
the operator of a Queensland transport business, alleging he
implemented an unlawful cashback arrangement involving JobKeeper
payments (06 September 2021).
More...
Published reports, articles and speeches
Department of Jobs and Small Business: Monthly Leading
Indicator of Employment 2021
The Monthly Leading Indicator of Employment has fallen in
September 2021. Click
here for more information.
ABCC Industry Update – 16 September 2021
edition
In this edition of Industry Update we provide advice on
COVID-19 vaccinations and the workplace, our 2021–22
corporate plan, the High Court's recent decision about casual
employment, litigation news and much more.
In practice and courts
FWO: Review of casual employment terms in most
awards
The Fair Work Commission has been reviewing casual
employment terms in most awards. Find out what's changing; if
your award is affected and the list of affected awards. Click
here for more information.
FWO: New sexual harassment protections take effect
On 10 September 2021, the Sex Discrimination and Fair Work
(Respect at Work) Amendment Act 2021 (Respect at Work amendments)
took effect. The changes aim to make sure that workers are
protected and empowered to address sexual harassment at work.
Updated 21 September 2021. Read more
here.
FWC: Stopping sexual harassment at work
The Sex Discrimination and Fair Work (Respect at Work)
Amendment Act 2021 extend the stop-bullying jurisdiction so that
the Fair Work Commission will be able to make orders to stop sexual
harassment at work. Applications for such orders can be made to the
Commission from 11 November 2021. Learn more
here.
FWO: Loaded rates added to Hospitality Award
On 3 September 2021, the Fair Work Commission made a
decision that added loaded rate arrangements to the Hospitality
Award. These new provisions apply on or after the first pay period
starting on 3 September 2021. Click
here for more information.
FWC: Nurses award extensively varied
The technical and drafting matters for the Nurses Award
2010 have been completed. The varied award was published in advance
and commenced operation on 9 September 2021. To access the new
version of the award, go to the
Modern awards list on the Commission's website. Click
here for more information.
Cases
Australian Building and Construction Commissioner v
Construction, Forestry, Maritime, Mining and Energy Union (The
Monash Freeway Widening Case) (No 2) [2021]
FCA 1101
INDUSTRIAL LAW – pecuniary penalties –
contraventions of sections 499 and 500 of the Fair Work Act 2009
(Cth) – determination of appropriate penalty – civil
double jeopardy – analysis of the nature, gravity, character
and seriousness of the contraventions – significance of
union's history of contravening conduct – whether that
history should inform the court's assessment of appropriate
penalties – significance of corrective action –
penalties imposed – appropriateness of declaratory
relief.
Evidence Act 1995 (Cth) section 66A; Fair Work Act 2009 (Cth) pt
3-4, ss 494, 499, 500, 502, 510, 546, 550, 556, and 793; Fair Work
(Registered Organisations) Act 2009 (Cth).
The first respondent pay pecuniary penalties totalling $47,250.00.
The second respondent pay pecuniary penalties totalling
$7,290.00.
Australian Building and Construction Commissioner v
Construction, Forestry, Maritime, Mining and Energy Union (the
Toowoomba Bypass Case) [2021] FCA
1128
INDUSTRIAL LAW – Fair Work Act 2009 (Cth) –
where union and union officials admitted contraventions of sections
494(1) and 500 – where declaratory relief and imposition of
pecuniary penalties sought by Commissioner – determination of
appropriate declarations – determination of appropriate
penalties – where personal payment orders sought against
union officials – personal payment orders not made.
Building and Construction Industry (Improving Productivity) Act
2016 (Cth); Fair Work Act 2009 (Cth) sections 494, 497, 499, 500,
512, 546, 550, 793; Work Health and Safety Act 2011 (Qld) section
81(3).
Australian Building and Construction Commissioner v
CoreStaff WA Pty Ltd (No 2) [2021] FCA
1149
INDUSTRIAL LAW – adverse action – where
declaration previously made as to contraventions of section 351 of
the Fair Work Act 2009 (Cth) – assessment of penalties
– where employer in labour hire industry took adverse action
against prospective employee because of age – where client
advised, encouraged or incited employer to take adverse action but
conceded liability and expressed remorse – need for general
and specific deterrence – penalties imposed including order
for part payment to third party.
Age Discrimination Act 2004 (Cth) section 18; Fair Work Act 2009
(Cth) sections 351, 362, 539, 546.
The first respondent pay a pecuniary penalty in respect of its
contravention of section 351(1) of the Fair Work Act 2009 (Cth) the
subject of the declaration made 3 July 2020 in the sum of $20,000,
payment to be made in equal parts to Peter Selsmark (50%) and to
the Commonwealth (50%).
Construction, Forestry, Maritime, Mining and Energy
Union v CPB Contractors Pty Ltd [2021] FCA
1107
INDUSTRIAL LAW – consideration of an application by
the CFMMEU and organisers of that union for an order restraining
the respondent from refusing access to the tunnelling sites or
tunnelling workplaces as part of the Cross River rail project in
the state of Queensland.
Fair Work Act 2009 (Cth), sections 484, 494, 495-499, 501, 502,
539, 545, 546; Work Health and Safety Act 2011 (Qld), sections 8,
116, 117, 142.
Fair Work Ombudsman v Plushbear Pty Ltd
[2021] FedCFamC2G 60
INDUSTRIAL LAW – penalties – admitted
contraventions of Fair Work Act 2009 (Cth) – underpayment of
wages to employees – failure to comply with compliance notice
– where proceedings brought against respondent company and
second respondent – where second respondent is sole director
and shareholder of respondent company – where second
respondent was a person 'involved' within the meaning of
section 550 in the contravention of section 716(5) of the Fair Work
Act 2009 by respondent company – appropriate penalty to be
imposed – applicable principles – penalty
determined.
Legislation
Commonwealth
Acts
Sex
Discrimination and Fair Work (Respect at Work) Amendment Act
2021
17/09/2021 – Act No. 104 of 2021 as made –
assent Act No: 104 – year: 2021 – 10 September
2021.
Implements certain recommendations of the Australian Human Rights
Commission report, Respect@Work: National inquiry into sexual
harassment in Australian workplaces by amending the: Australian
Human Rights Commission Act 1986 to amend the definition of
'unlawful discrimination'; and extend the period of time
between an alleged incident and the lodging of a complaint in
relation to the president's discretion to terminate a
complaint; Fair Work Act 2009 to: Provide that a worker who is
sexually harassed at work may apply for a Fair Work Commission
(FWC) order to stop the sexual harassment; provide
that the FWC can make an order to stop sexual harassment following
a single instance of sexual harassment; provide that sexual
harassment in connection with an employee's employment can be a
valid reason for dismissal; and extend the minimum entitlement for
compassionate leave in relation to miscarriage; and Sex
Discrimination Act 1984 to: Prohibit discrimination involving
harassment on the ground of sex; extend the application of the Act
to members of parliament, members of the ACT and Northern Territory
legislative assemblies and their staff, judges, staff and
consultants employed under the Members of Parliament (Staff) Act
1984, state employees, including independent contractors; and the
public authority of a state; and include definitions of
'worker' and 'persons conducting a business or
undertaking' to extend the protection from sexual harassment to
all paid and unpaid workers, including volunteers, interns and the
self-employed.
Paid
Parental Leave Amendment (COVID-19 Work Test) Act
2021
07/09/2021 – Act No. 99 of 2021 as made –
enable people to access parental leave pay and dad and partner pay
who do not meet the current work test provisions because their
employment has been affected by the COVID-19 pandemic, but who have
been paid Commonwealth payments in recognition of this effect.
Regulations
Parliamentary
Service Amendment (Independent Parliamentary Workplace Complaints
Mechanism) Determination 2021
23/09/2021 – this instrument amends the
Parliamentary Service Determination 2013 to confer the functions of
the independent parliamentary workplace complaints mechanism on the
Parliamentary Service Commissioner.
Paid
Parental Leave Amendment (COVID-19 Work Test) Rules
2021
04/09/2021 – this instrument amends the Paid
Parental Leave Rules 2021 to allow calculation of the number of
hours of qualifying work performed by people who have received a
COVID-19 Australian Government payment to count towards the work
test for paid parental leave.
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.
