In the media
Trolley collecting operator penalised
The Fair Work Ombudsman has secured a $7,560 penalty in
court against the operator of a trolley collecting business in
regional NSW for failing to comply with a Fair Work Commission
order to pay compensation to an employee who was found to be
unfairly dismissed (29 November 2021).
More...
ABCC publishes code non-compliance by NSW company RMA
Construction Group Pty Ltd
The ABCC Commissioner has published details of NSW based
company RMA Construction Group Pty Ltd's non-compliance with
the Code for the Tendering and Performance of Building Work 2016
(Cth) after it failed to pay a subcontractor on time and breached
security of payment laws (29 November 2021).
More...
ABCC commences action against CFMMEU and officials for
alleged illegal picket of WA construction yard
The ABCC has taken court action against the CFMMEU and two
of its officials after they allegedly took part in an unlawful
picket at a Balcatta company's construction yard on 3 May 2021
(26 November 2021).
More...
CFMMEU held to account over officials' improper
conduct on Perth's Doubletree Hilton site
The Federal Court has penalised the CFMMEU $23,000
following the union admitting to a breach of the Fair Work Act
through the actions of two of its officials during construction of
Perth's Doubletree Hilton Hotel (25 November 2021).
More...
CFMMEU officials accused of disrupting major freeway
project – striking health and safety manager
The ABCC is taking courttion against the CFMMEU and three
officials after they allegedly directed workers to stop work,
prevented concrete pours, abused health and safety officers and
struck a health and safety manager at the Mordialloc Freeway
project site in 2020 (17 November 2021).
More...
Construction worker who faced "wrath of the giant
CFMEU" awarded $67,000 following attempted coercion to re-join
union
Heiko Constructions Pty Ltd, a Queensland construction
company, has been ordered to pay a former worker $60,000 in
penalties and $7,000 in compensation after attempting to coerce its
then worker to re-join the CFMMEU (09 November 2021).
More...
Unvaxxed politicians, staff may be banned from
Queensland Parliament
Queensland is enforcing vaccine mandates for police,
health workers and truckies. Now authorities are considering
whether the same rules should apply to MPs (17 November 2021).
More...
Westpac signs Enforceable Undertaking
Westpac Banking Corporation has entered into an
Enforceable Undertaking with the Fair Work Ombudsman in relation to
the underpayment of long service leave entitlements to employees
across Australia as a result of payroll system errors, which
resulted in the bank failing to correctly take into account
employees' overtime work, average weekly hours, bonuses,
commissions and sick leave when determining how much long service
leave to accrue to employees (16 November 2021).
More...
Emirates Leisure Retail signs Enforceable
Undertaking
Emirates Leisure Retail (Australia) Pty Ltd has signed an
Enforceable Undertaking with the Fair Work Ombudsman in relation to
the underpayments arising from misclassification of employees under
the applicable enterprise agreement, a failure to pay overtime
rates for hours of work beyond 38 hours per week and a failure to
comply with rostering requirements related to night-time and
weekend work (18 November 2021).
More...
Labour hire authority hands down its annual report
The Victorian Labour Hire Authority has cracked down on
dodgy operators with strict reviews of licence applications and a
significant take up in its Labour Hire Licensing Scheme, according
to the Authority's annual report (11 November 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 (the
Indicator) has fallen for the fifth consecutive month in
November 2021. This latest result is attributed to falls in all
five of the Indicator's components –
particularly the NAB Forward Orders Index. Read
more
here.
Industry Update – November 2021 edition
The November issue of Industry Update puts a spotlight on
sexual harassment in the construction industry by sharing key
statistics, case studies, and findings of the Respect@Work report.
Learn about the Fair Work Commission's new powers, including
what they mean for building industry participants and how to access
them if you experience sexual harassment. Read the
Industry Update – November 2021 edition.
In practice and courts
FWC: End of year timeframes for approval of enterprise
agreement applications
The Fair Work Commission does not close over the festive
period, and we will continue to process and approve enterprise
agreements as quickly as possible. If you want your agreement to be
approved quickly and easily, we recommend you check our
Making compliant agreement applications guide. Read more
here.
FWO: Electrical Award changes for casual employees
23 November 2021 – the Fair Work Commission has
clarified how certain casual penalty and overtime rates should be
calculated under the Electrical Award. This applies from the first
full pay period starting on or after 23 November 2021. Read more
here.
FWO: New sexual harassment protections take effect
From 11 November 2021, eligible workers can apply to the
Fair Work Commission for an order to stop sexual harassment at
work. The Commission's stop bullying jurisdiction under the
Fair Work Act 2009 has been expanded by the Sex Discrimination and
Fair Work (Respect at Work) Amendment Act 2021. Read more
here.
FWO: Penalty rate changes for casual employees –
Hair and Beauty Award
10 November 2021 – penalty rates for casual hair and
beauty employees working on weekends will increase starting in
January 2022. These changes will be added to the award on 3
November 2021 and the increased rates will be phased in over two
years. Read more
here.
FWO: Annual Wage Review 2021
From 1 November 2021, pay rates in 21 awards increased.
Updated minimum rates are now available in our pay tools. Our pay
calculator and
pay guides now have updated rates. For a list of awards that
increased, click
here. See
annual wage review 2021.
Cases
Australian Building and Construction Commissioner v
Construction, Forestry, Maritime, Mining and Energy Union (The
Double Tree Hilton Case) [2021] FCA
1468
INDUSTRIAL LAW – admitted contravention of section
500 of the Fair Work Act 2009 (Cth) – imposition of an
appropriate penalty under section 546(1) of the Fair Work Act on
the union for the improper conduct of its officials – where
instant contravention is relatively minor – whether general
history of prior contraventions warrants imposition of the highest
possible penalty to ensure effective deterrence – role of
proportionality in assessment of civil penalties – relevance
of prior contraventions in assessing the serious of the instant
contravention – Pattinson v Australian Building and
Construction Commissioner [2020] FCAFC 177; (2020) 282 FCR 580
applied.
The CFMMEU pay a pecuniary penalty of $23,000 in respect of the
declared contravention.
Fair Work Ombudsman v CNL Group Pty Ltd
[2021] FedCFamC2G 215
INDUSTRIAL LAW – FAIR WORK – underpayment of
two employees – penalty hearing – where
respondent's admit to the charges against them – where
the respondent's maintained false and misleading records
– interference with the investigative powers of the Fair Work
Ombudsman – where the respondents have been cautioned by the
Fair Work Ombudsman previously – first time offender –
calculation of penalty – intuitive synthesis. In all the
circumstances, the respective total penalties seem excessive and I
will apply a further discount of 20 per cent to each of them,
leaving CNL with a total penalty of $66,528.00 and Ms Li to a
penalty of $11,692.80.
Fair Work Ombudsman v Yang [2021]
FedCFamC2G 247
INDUSTRIAL LAW – FAIR WORK – underpayment of
two employees – compliance notice – penalty hearing
– where respondent's admit to the charges against them
– calculation of penalty – first time offender –
intuitive synthesis.
Hurley v Security & Technology Services (NT) Pty
Ltd [2021] FedCFamC2G
181
INDUSTRIAL LAW – FAIR WORK – whether the
applicant wrongfully dismissed – whether the first respondent
contravened section 44 of the Fair Work Act 2009 (Cth) – no
serious misconduct summary dismissal not justified –
contravention of section 44 of the Fair Work Act 2009 (Cth) in
failing to give notice required under section 117 of the Fair Work
Act 2009 (Cth) – failure to make out serious misconduct
within section 123 Fair Work Act 2009 (Cth) – compensation
awarded under section 545 of the Fair Work Act 2009 (Cth) –
interest under section 547 of the Fair Work Act 2009 (Cth).
The first respondent, pursuant to section 545(2)(b) of the Fair
Work Act 2009 (Cth), pay compensation to the applicant for the loss
suffered because of the contravention in the sum of $308,401.83
together with interest under section 547 of the Fair Work Act 2009
(Cth) from 12 March 2020 to date in the sum of $21,598.04, making a
total sum of $329,999.87.
2. If Order 1 had not been made, the Court would have awarded
damages in favour of the applicant for breach of contract by the
first respondent in the sum of $308,401.83 and interest under
section 211 of the Federal Circuit and Family Court of Australia
Act 2021 (Cth) from 12 March 2020 to date in the sum of
$21,598.04.
Bis Industries Limited v Construction, Forestry,
Maritime, Mining and Energy Union [2021] FCA
1374
INDUSTRIAL LAW – applicant sought declarations that
the Black Coal Industry Mining Award 2010 (the Black Coal
Award) did not cover its Field Services Representatives
(FSRs) – only the CFMMEU and three FSRs
(the Specific Employees) named as respondents
– application considered in relation to the Specific
Employees – whether the Specific Employees within the
definition of "coal mining employees" in the Black Coal
Award – consideration of clause 4.8 of the Black Coal Award
– whether the Manufacturing and Associated Industries and
Occupations Award 2010 contains the "most appropriate"
classification for the Specific Employees' work –
applicant succeeds in part.
Tyson v Heiko Constructions trading as Heiko
Constructions Pty Ltd [2021] FedCFamC2G
212
INDUSTRIAL LAW – assessment of compensation for
contravention of section 348 Fair Work Act 2009 (Cth) –
pecuniary penalty – worst case – penalty to be paid to
the applicant.
Fair Work Act 2009 (Cth), sections 3, 336, 340, 343, 348, 539, 545,
546.
Pursuant to section 546(1) of the Fair Work Act 2009 (Cth), the
respondent pay a pecuniary penalty of $60,000.00.
Legislation
Commonwealth
Bills
Fair
Work Amendment (Same Job, Same Pay) Bill
2021
HR 22/11/2021 – this Bill proposes to amend the Fair
Work Act to ensure that workers employed through labour hire
companies will receive no less than the same pay as workers
employed directly – same job same pay.
Act Compilation
Maternity
Leave (Commonwealth Employees) Act 1973
10/11/2021 – Act No. 72 of 1973 as amended.
Regulations
Fair
Work Act 2009 Direction to Inspectors (November
2021)
22/11/2021 – this instrument applies to persons
appointed as a Fair Work Inspector under subsection 700(1) of the
Fair Work Act 2009, in relation to the performance of functions or
the exercise of powers as an inspector.
Fair
Work Commission Amendment (Stop Sexual Harassment) Rules
2021
10/11/2021 – this instrument amends the Fair Work
Commission Rules 2013 to extend the Fair Work Commission's stop
bullying jurisdiction so that the Fair Work Commission can also
make orders to stop sexual harassment in the workplace.
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.