COVID-19 update
Fair Work: Clerks Award flexibility during outbreak of
coronavirus
On 28 March 2020, the Fair Work Commission made a
determination varying the Clerks Award. The temporary new Schedule
I adds award flexibility during the coronavirus outbreak.
More...
Fair Work: Hospitality Award flexibility during the
outbreak of coronavirus - Schedule L
On 24 March 2020, the Fair Work Commission made a
determination varying the Hospitality Award. The temporary new
Schedule L adds award flexibility during the outbreak of
coronavirus.
More...
UPDATE: Fair Work Commission COVID-19 response
Those wishing to make an application can: make an
application using our online lodgment service (23 March 2020).
More...
Publications
Initial assessment of the impact of a COVID-19 induced
economic downturn on NSW and Australian workers
Edward Cavanough, Liliana Tai: The McKell Institute: 19
March 2020
This publication collates data on immediately impacted cohorts of
the labour market who are already being adversely impacted by a
collapse in aggregate demand resulting from strict policy responses
to COVID-19, such as social distancing and travel restrictions. More...
APH Publications: JobSeeker Payment: a quick guide
13 March 2020
JobSeeker Payment: a quick guide
Legislation
Commonwealth - Bills
Boosting Cash Flow for Employers (Coronavirus Economic
Response Package) Bill 2020
Finally passed both Houses 23 March 2020 Assent Act no: 23
Year: 2020 24 March 2020
This legislative package contains a number of bills to implement
the Government's economic response to the spread of the
Coronavirus, which the Government announced between 12 and 22 March
2020. More...
In the media
Long-haul transport business faces court
The Fair Work Ombudsman has commenced legal action in the
Federal Circuit Court against Sapphire Freighters Pty Ltd
(Sapphire Freighters), a long distance trucking
business transporting goods between Melbourne and Brisbane (30
March 2020).
More...
Activ Foundation signs Court-Enforceable
Undertaking
Disability services provider, Activ Foundation Inc.
(Activ) will back-pay employees in Western
Australia a total of $13.6 million after breaching Australia's
workplace laws (20 March 2020).
More...
Security and communications business penalised
The Fair Work Ombudsman has secured penalties totalling
$8,505 against the operators of a Brisbane-based security and
communications installation services business for failing to comply
with a Compliance Notice (16 March 2020).
More...
Security company penalised
The Fair Work Ombudsman has secured penalties totalling
$68,560 against the former directors of a Coffs Harbour security
contractor found to have underpaid 14 employees almost $94,000 (16
March 2020).
More...
Qantas signs Court-Enforceable Undertaking
Qantas Airways Limited (Qantas) has
entered into a Court-Enforceable Undertaking (EU)
with the Fair Work Ombudsman and will back pay hundreds of workers
millions of dollars (13 March 2020).
More...
Melbourne clothing retailer faces court
The Fair Work Ombudsman has commenced legal action in the
Federal Circuit Court against the operator of a clothing retail
store in Melbourne (12 March 2020).
More...
Bondi venue in court
The Fair Work Ombudsman has commenced legal action in the
Federal Circuit Court against the operator of Upper East Side
Bondi, a restaurant and bar in Sydney's east (11 March 2020).
More...
ABCC takes court action over alleged unlawful picket of
Perth building site
The ABCC has filed Federal Court proceedings against West
Australian company Tyrone Construction Services Pty Ltd and one of
its representatives over alleged unlawful pickets of the
Perth-based building site known as 'Skypark' on 27 June and
1 August 2019(11 March 2020).
More...
Court upholds Compliance Notice
The Federal Circuit Court has confirmed a Compliance
Notice issued by the Fair Work Ombudsman to a transport company
operating in NSW, after the company applied to have the notice
reviewed by the Court (09 March 2020).
More...
Brisbane sole trader faces legal action
The Fair Work Ombudsman has commenced legal action against
a Brisbane sole trader for allegedly underpaying a young employee
more than $5,000 and failing to comply with a Fair Work Commission
order (09 March 2020).
More...
CFMMEU handed hefty penalty in NSW coercion case
The CFMMEU has been hit with a major financial penalty
with the Federal Circuit Court penalising the union and five of its
officials $486,500. The union was found to have organised unlawful
blockades and work disruptions targeting Sydney concreting company
De Martin and Gasparini (DMG) in 2015 (02 March
2020).
More...
Full Bench rejects CFMMEU right of entry permit
appeal
The Full Bench of the Fair Work Commission has upheld a
decision to refuse to grant an entry permit to Paul McAleer, NSW
Branch Secretary and National Vice President of the Maritime
Division of the CFMMEU (02 March 2020).
More...
Wage theft. It's a crime
Amendments to the state Criminal Code will be introduced
to tackle wage theft head-on, following a Queensland Parliamentary
inquiry to make wage theft a criminal offence. employers who commit
wage theft in future will be liable to a maximum term of
imprisonment for 10 years for stealing or 14 years for fraud (06
March 2020).
More...
Published - reports, articles, speeches
ABCC Industry Update - March 2020 edition
Welcome to the March 2020 edition of Industry Update, our
quarterly online newsletter. Industry Update provides updates on
the latest activities of the ABCC, industry trends, and emerging
issues (12 March 2020).
More...
Department of Jobs and Small Business: Monthly Leading
Indicator of Employment March 2020
The Monthly Leading Indicator of Employment (the
Indicator) has fallen for the fourth consecutive month in
March 2020, after three consecutive monthly rises (following trend
revisions). The reversal in the Indicator's recent monthly
movements stems from the global economic disruption, arising from
the worldwide COVID-19 epidemic.
More...
In practice and courts
FairWork Reminder: New rules for annualised wage
arrangements
On 4 July 2019, the Fair Work Commission (the
Commission) handed down a
decision about annualised wage arrangements in several awards.
These arrangements are also known as annual salaries. The decision
inserts new rules about annual salaries in several awards. They
take effect from the first pay period starting on or after 1 March
2020.
More...
Improving protections of employees' wages and
entitlements: further strengthening the civil compliance and
enforcement framework
The Commonwealth Attorney-General's Department is
seeking submissions on the operation of the current compliance
and enforcement framework relating to protection of employees'
wages and entitlements. Feedback is welcome by
Wednesday 11 March 2020.
FWC Report: Promoting compliance through behavioural
insights
The report
Promoting compliance through behavioural insights (PDF) looks
at how behavioural insights techniques could be applied to reduce
costs and barriers to access for employers and employees who use
the Commission's services, and improve overall compliance with
unfair dismissal and enterprise agreement lodgment requirements (11
March 2020).
More...
FWC: 31 modern awards extensively varied
The modern awards will be varied in 3 tranches during
2020. The technical and drafting matters for the second tranche of
31 awards have been completed. The varied awards have been issued
and will commence operation on 13 April 2020 and 4 May 2020 for the
manufacturing section. Refer to the changes here
Modern awards list on the Commission's website
31 modern awards extensively varied.
New Government Consultations
Improving protections of employees' wages and
entitlements: further strengthening the civil compliance and
enforcement framework
The discussion paper outlining a range of reform options
had been released and submissions were now being sought from all
interested stakeholders to help inform any future policy changes.
Submissions can be made by email to IRconsultation@ag.gov.au. The
closing date for submissions is 3 April 2020.
More...
APH Senate Inquiry
Status: Accepting Submissions Date Referred: 13 November
2019 Submissions Reporting Date: 25 June 2020.
More...
Cases
Australian Building and Construction Commissioner v
Automotive, Food, Metals, Engineering, Printing and Kindred
Industries Union [2020] FCA
404
INDUSTRIAL LAW - contraventions of s 52 of Building and
Construction Industry (Improving Productivity) Act 2016 (Cth) -
making of orders as to penalty
Bianco Walling Pty Ltd v Construction, Forestry,
Maritime, Mining and Energy Union [2020]
FCAFC 50
INDUSTRIAL LAW - application for prerogative and declaratory relief
in respect of decisions of the Fair Work Commission dismissing an
application pursuant to s 217 of the Fair Work Act 2009 (Cth) for
the variation of an enterprise agreement - alleged ambiguity or
uncertainty in the agreement - whether decision of a Deputy
President affected by jurisdictional error by reason of the Deputy
President treating the application as requiring an interpretation
of the agreement and by treating the terms "ambiguity"
and "uncertainty" as synonyms - whether the decision of
the Full Bench to affirm the Deputy President's decision
affected by jurisdictional error.
Held: both decisions affected by jurisdictional error
United Voice v Paisley Park Early Learning Centres (SA)
Pty Limited & Anor
INDUSTRIAL LAW - Right of entry - alleged contravention of
section 502 of the Fair Work Act 2009 (Cth) - hindering or
obstruction of union official's right to hold discussions in
the work place - whether parties failed to reach agreement as to
location of such discussions - application of section 492 of the
Act - contraventions established - penalty to be imposed.
Fair Work Ombudsman v Northcoast Security Services
Group Pty Ltd & Ors (No.3) [2020] FCCA
521
INDUSTRIAL LAW - Assessment of pecuniary penalties for
involvement of directors in employer's contraventions of s.45
and s.323(1) of the Fair Work Act 2009 (Cth) (FW
Act) - orders for the payment of pecuniary penalties
made.
INDUSTRIAL LAW - Remedies - Whether the Fair Work Ombudsman
(FWO) can apply for and be granted orders under
s.545(2)(b) of the FW Act awarding compensation in relation to
employees who had been underpaid - assuming FWO can be granted such
orders whether such orders can be granted in the form of an order
requiring payment of compensation to the FWO on terms that if the
amount for compensation is paid to the FWO the FWO would pay out of
amount it received the persons on account of whom compensation has
been assessed - assuming such orders can be granted whether any
orders to that effect should be granted in the circumstances of
this case - orders made.
INDUSTRIAL LAW - Remedies - Whether the loss for which an order for
compensation can be made under s.545(2)(b) of the FW Act against a
person involved in another's contravention is limited to loss
that is caused by that person's conduct as an accessory - not
so limited.
Benge & Anor v Bluescope Steel (AIS) Pty
Ltd (No.2) [2020] FCCA 515
INDUSTRIAL LAW - Fair Work Act 2009 (Cth) - Claims for
relief under s.545 of the Fair Work Act 2009 (Cth) by employees of
respondent for amounts claimed to be due to them under their
written employment contracts for pre-paid overtime not paid to them
as and from 10 January 2016 in contravention of s.323 of the Fair
Work Act 2009 (Cth) - judgment answers questions dealing with the
proper construction of the employment contracts - whether there
were any valid variations to the employment contracts justifying
the non-payment of pre-paid overtime as and from 10 January 2016 -
whether in the circumstances the applicants consented to the
termination and non-payment of pre-paid overtime by continuing to
work for the respondent after the pre-paid overtime was terminated
and not paid to them - whether the respondent repudiated the
employment contracts by not paying pre-paid overtime to the
applicants as and from 10 January 2016 - whether in the
circumstances the applicants accepted any repudiation
ALDI Foods Pty Limited as General Partner of ALDI
Stores (a Ltd Partnership) v Transport Workers' Union of
Australia [2020] FCA 269
COMPETITION LAW - secondary boycotts - misleading and deceptive
conduct
COMPETITION LAW - whether a union is a trading corporation -
whether statements made by union made in trade or commerce - part
of industrial campaign - part of conduct engaged in to inform the
public
INDUSTRIAL LAW - union protests - freedom of speech - whether
statement made in trade or commerce
TORT - injurious falsehood - no malice - no loss or damage - no
relief
Constitution s 51
Competition and Consumer Act 2010 (Cth) ss 4, 6, 45D, 131, Sch 2 (Australian Consumer Law) ss 18, 31
Fair Work (Registered Organisations) Act 2009 (Cth)
Hana Express Group Pty Ltd v Fair Work
Ombudsman[2020] FCCA 54
INDUSTRIAL LAW - Fair Work - Review of a Compliance Notice -
whether the Notice correctly identified breaches of the Road
Transport and Distribution Award considered - non payment of
delayed meal break penalties - meal breaks permitted but not
required or encouraged - Notice confirmed.
Acts Interpretations Act 1901 (Cth), s.15AA
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.3, 5, 6
Fair Work Act 2009 (Cth), ss.3, 49, 716, 717, 568
Muhlberg & Anor v Trustee for Sajasan Trust trading
as Port Lincoln Travel & Cruise[2020] FCCA
427
INDUSTRIAL LAW - Adverse action - alteration of position
to employees prejudice - dismissal of employees - whether either
form of adverse action for impermissible reason - whether direction
by employer to provide further evidence of inability to work due to
personal illness was lawful.
AWARDS - Breach of award - underpayment and non-payment - where
alleged adverse action found not to have been for impermissible
reason - underpayment rectified - matter adjourned for penalty
submissions.
Airline Operations - Ground Staff Award 2010, cls.30.5 & 35.2(a)
Fair Work Act 2009 (Cth), ss.44, 45, 97, 107, 107(3)(a), 107(5), 117, 340, 340(1), 340(1)(a)(ii), 340(1)(c), 341, 341(1)(c)(a), 342, 342(1), 342(1) Item 1(a) & (c), 352, 360, 360(1), 361, 539(2), 545(2)(b), 546 & 546(2)
Botha v George Weston Foods Limited trading as Tip Top
Bakeries (Chullora) (No.2) [2020]
FCCA 476
INDUSTRIAL LAW - PRACTICE AND PROCEDURE - Whether amended statement
of claim is deficient - whether particular paragraphs of amended
statement of claim are sufficiently particularised - amended
statement of claim not deficient or insufficiently particularised.
Fair Work Act 2009 (Cth), ss.340, 351, 570(2)
Anstey v Mambourin Enterprises Ltd[2020]
FCCA 461
INDUSTRIAL LAW - FAIR WORK - Adverse action - suspension -
allegations of misconduct - allegations of poor performance -
refusal to convert a casual position to a permanent position -
dismissal.
INDUSTRIAL LAW - FAIR WORK - Alleged underpayments - failure to
pay annual leave loading for two weeks annual leave given in
addition to the Award requirement for four weeks annual leave -
alleged failure to pay penalty rates for weekends - alleged failure
to pay for time worked without meal breaks.
(1) The respondent breached s.45 of the Fair Work Act 2009 by breaching cl.31.3(a) failing to pay the applicant an annual leave loading of 17.5%
Legislation
Commonwealth
Regulations
National
Workplace Relations Consultative Council Regulations
2020
10/03/2020 - This instrument provides for a member of the
National Workplace Relations Consultative Council, and a member of
a committee established by the Council, to receive travelling
allowance for the purpose of attending Council meetings, Council
committee meetings, or where otherwise engaged in legitimate
Council business.
NSW
Regulations and other miscellaneous instruments
Building and Construction Industry Long Service Payments Amendment
(Bushfire Relief) Regulation 2020(2020-98) —
published LW 20 March 2020
Queensland
No 24
Building and Construction Industry (Portable Long Service
Leave) (Levy Changes) Amendment Regulation
2020
This Regulation is made under the Building and
Construction Industry (Portable Long Service Leave) Act 1991. The
policy objectives is to remove the tiered levy structure which
currently provides discounted levy rates to very large projects and
replace it with a single levy rate for leviable matters, and to
increase the portable long service leave levy from 0.25 per cent to
0.35 per cent.
Victoria
Bills
Wage Theft Bill 2020
Date of second reading speech: 19 March 2020
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.