In the media
Chinese restaurant in Melbourne penalised
The Fair Work Ombudsman has secured a total of $309,750 in
penalties in court in response to a migrant employee being
underpaid at a Melbourne Chinese restaurant (29 June 2021).
More...
New laws to target workplace harassment
The Attorney-General's Department has publicised
proposed new laws before the Parliament, which crack down on sexual
harassment and discrimination in Australia's workplaces. Ms
Cash said the Bill gave effect to commitments made in the
Government's response to the Respect@Work Report (28 June
2021).
More...
CFMMEU penalised over safety claims including first aid
bed was "too high" on Melbourne Metro Tunnel
Project
A CFMMEU shop steward who directed workers to stop work at
the $11 billion Melbourne Metro Tunnel project in 2019 after
claiming a first aid bed was too high has been penalised $5,000 and
the union $85,000 for taking unlawful industrial action following a
Federal Court decision (28 June 2021).
More...
Call for federal regulator for Australia's gig
economy after sixth delivery rider death revealed
A Senate inquiry has recommended the creation of a federal
regulator for the gig economy as yet another death of a food
delivery rider was revealed. The inquiry has also recommended that
the definition of "employee" should be expanded to
include gig workers (27 June 2021).
More...
Fair Work Ombudsman launches legal action against
Woolworths over 'significant underpayments'
The FWO claims staff are still owed over $700,000 (18 June
2021).
More...
Unemployment rate falls to 5.1 per cent, employment up
115,000
The seasonally adjusted unemployment rate fell to 5.1 per
cent in May 2021, with employment increasing by 115,000 people from
April to May, according to the ABS. The youth unemployment rate
increased by 0.1 percentage points but remained low, at 10.7 per
cent (17 June 2021).
More...
CFMMEU and former officials hit with $382,800 penalties
for targeting crane company in Wollongong
The Federal Court penalised the CFMMEU and two former
officials $382,800 following unlawful conduct against mobile crane
company WGC Cranes to pressure it to sign a CFMMEU enterprise
agreement (09 June 2021).
More...
Security services company in court
The Fair Work Ombudsman has commenced legal action in the
Federal Circuit Court against the operators of a security services
company in Perth (08 June 2021).
More...
Workplace review brings Parliament to book
The findings of a review into the procedures and processes
for dealing with serious incidents affecting employees in the
Parliament have been released for feedback from the Government,
opposition, and staff members employed in the system. Ms Foster
said current procedures and processes were not designed or able to
respond appropriately to serious incidents in the Parliamentary
workplace, particularly to sexual assault (07 June 2021).
More...
Sydney research company faces court
The Fair Work Ombudsman has commenced legal action against
a Sydney health and wellness research company for alleged sham
contracting involving workers with a disability (04 June 2021).
More...
Published reports, articles, speeches
Department of Jobs and Small Business: Monthly Leading
Indicator of Employment 2021
The Monthly Leading Indicator of Employment (the
Indicator) has risen for the twelfth consecutive month in
June 2021, following a strongly confirmed trough in the Indicator
in June 2020. The Indicator's rise this month is attributed to
three of its five components. Click
here to read more.
ABCC Industry Update – 10 June 2021 edition
In this edition of Industry Update, we look at two recent
examples of Code covered entities that have failed to comply with
the Code, litigation news and more. Click here
to read more.
In practice and courts
FWO: Annual Wage Review 2021
Published 15 June 2021, updated 18 June 2021. Following
the
Annual Wage Review 2021, the Fair Work Commission has announced
a 2.5 per cent increase to the national minimum wage. A summary of
the Annual Wage Review 2021 decision is available on the
summaries of significant decisions page on the Commission's
website. The full decision is available
here.
FWC: New online application form for enterprise
agreements
The Fair Work Commission is building a new way for users
to fill in and lodge enterprise agreements (23 June 2021). Find out
more
here.
FWC: Filing fee increase – dismissals, general
protections and anti-bullying applications
From 1 July 2021, the application fee for dismissals,
general protections and bullying at work applications made under
sections 365, 372, 394, 773 and 789FC of the Fair Work Act 2009
will increase to $74.90. Also effective from 1 July, the high
income threshold in unfair dismissal cases will increase to
$158,500 (23 June 2021). Find out more
here.
Commonwealth Parliamentary Review now open for
submissions and interviews: Sex discrimination
The AHRC has commenced invitation for contributions for
its Independent
Review into Commonwealth Parliamentary Workplaces, the review
aim is to ensure all Commonwealth Parliamentary workplaces are safe
and respectful and that our national Parliament reflects best
practice in the prevention and handling of bullying, sexual
harassment and sexual assault. Make a written submission here. Closes on 31
July 2021.
Cases
McAlister v Yara Australia Pty Ltd
[2021] FCCA 1409
INDUSTRIAL LAW – contract of employment –
where employee was summarily dismissed – whether breach of
contract – whether term of reasonable notice implied –
remedies for breach.
INDUSTRIAL LAW – adverse action claim – whether
contract of employment terminated for prohibited reason.
INDUSTRIAL LAW – redundancy – whether applicant's
role made redundant.
Fair Work Act 2009 (Cth), sections 117, 119, 340, 361.
Australian Building and Construction Commissioner v
Construction, Forestry, Maritime, Mining and Energy Union (the WGC
Cranes Case) [2021] FCA
622
INDUSTRIAL LAW – contraventions of section 54(1) of
the Building and Construction Industry (Improving Productivity) Act
2016 (Cth) ('BCIIP Act') and section 346
of the Fair Work Act 2009 (Cth) – where two union officials
admitted to engaging in intimidatory and disruptive conduct with
intent to apply undue pressure on employer to make or approve a
building enterprise agreement on terms proposed by the union
– where the union posted photograph of employee on social
media labelling employee as a "scab" attracting abusive
comments – assessment of penalties – where section 94
of the BCIIP Act provides that a body corporate is taken to have
engaged in the same conduct as an officer, employee or agent of the
body within the scope of his or her actual or apparent authority,
whether union committed one or three contraventions of section
54(1) – where contraventions occurred on consecutive days and
were part of a single industrial campaign, whether contraventions
should be treated as a single course of conduct – whether
sections 83 and 84 of the BCIIP Act exclude the operation of the
common law course of conduct principle – whether
contraventions objectively serious – where union officials
have no previous contraventions – where union has a history
of non-compliance with industrial laws – where conduct of
union officials occurred on consecutive days, was directed to a
common end, and had some common features, whether the totality
principle required adjustment of aggregate penalties.
Difelice v Dettmer [2021] FCA
631
INDUSTRIAL LAW – applicant holds office as assistant
state secretary of a well-known trade union – misconduct
charges brought against applicant seeking his removal from office
– charges proposed to be determined by the union's
National Council – procedures set in train by resolutions
made on 6 May 2021 – whether National Council resolutions are
beyond the power conferred on that body by the union's rules
– whether the National Council meeting at which procedures
were decided was validly convened – whether National Council
has power to determine whether a "State Official" should
be removed from office.
PRACTICE AND PROCEDURE – application for interlocutory relief
under section 164(4) of the Fair Work (Registered Organisations)
Act 2009 (Cth) – appropriateness of directions for the
observance of union rules – application for interlocutory
relief granted.
Tapping v Empress Diamonds Pty Ltd ATF Empress
Discretionary Trust [2021] FCCA
1335
INDUSTRIAL LAW – Fair Work Act 2009 – breach
of general protections – applicant's sudden diagnosis of
breast cancer in 2019 – applicant seeking to exercise
workplace rights – whether applicant's dismissal was
unlawful because she proposed to take leave – dismissal
unlawful.
Alleged failure of respondents to pay accrued annual leave and to
give notice of termination – no annual leave owed –
failure to provide notice of termination or payment in lieu
found.
Alleged failure to provide copy of an award and NES – whether
the provision of a computer or internet connection sufficient to
discharge obligation to provide copy of award – mere
provision of computer and internet connection not sufficient.
Accessorial liability – second respondent found to be an
accessory because he had power to dismiss employee and was directly
involved in the dismissal – section respondent not an
accessory in respect of other contraventions.
Fair Work Act 2009 (Cth) sections 44(1), 45(1), 90(2), 117(2),
340(1), 340(1)(a)(ii). 340(1)(a)(iii), 351(1), 352, 536(1), 361,
550(2).
Fair Work Ombudsman v China Bar Buffet (Epping) Pty Ltd
& Ors [2021] FCCA
1430
INDUSTRIAL LAW – Contraventions of the Restaurant
Industry Award 2010, Fair Work Act 2009 (Cth), Fair Work
Regulations 2009 (Cth) – parties by consent seek declarations
of contravention and imposition of pecuniary penalties within
ranges agreed to by the parties – admitted contraventions of
Fair Work Act 2009 (Cth) – failure of the first respondent to
pay minimum rates of pay, overtime rates, Saturday, Sunday and
public holiday rates, annual leave loading on termination, split
shift allowances and superannuation contributions – failure
to keep employee records – failure to give pay slips –
making and keeping false or misleading records – whether
penalties reflect need for general deterrence – the
importance of specific deterrence – totality –
declarations made by the court – penalty orders made.
Wildman v IMCD Australia Limited
[2021] FCCA 1161
INDUSTRIAL LAW – adverse action – coercion
– workplace right to take paid personal leave under section
97 of the Fair Work Act 2009 (Cth) – applicant employee on
paid personal leave for more than three months – where
applicant submitted medical certificates – respondent
asserted applicant did not provide evidence of requisite character
that would satisfy a reasonable employer as to applicant's
unfitness for work under section 107 of the Act – where did
not enliven right to take personal leave under section 97 of the
Act – applicant on paid personal leave – applicant
dismissed from employment whilst on paid personal leave –
termination without notice or payment in lieu – legitimate
exercise of employer's power to direct respondent –
employer issued directions to attend independent medical
assessment, meetings with employer, and workplace whilst on paid
personal leave – applicant refused – respondent
asserted directions lawful and reasonable – whether applicant
dismissed for a reason or reasons including his exercise of a
workplace right – respondent alleged applicant engaged in
serious misconduct – duty to co-operate at common law –
held applicant dismissed for reasons including exercise of
workplace right to paid personal leave, or to exercise leave in a
particular way – held respondent's conduct unlawful
– held respondent's conduct coercion – held medical
certificates and evidence satisfied section 107 of the Act –
held respondent's directions not lawful – held
respondent's directions not reasonable – held duty to
co-operate not breached – held respondent's directions
and conduct unlawful coercions – held adverse actions –
held contraventions of Act established – application allowed
– cross-claim for repayment of payments whilst on sick leave
– cross-claim dismissed.
SBP Employment Solutions Pty Ltd v Smith
[2021] FCA 601
INDUSTRIAL LAW – appeal against decision of Federal
Circuit Court of Australia – Fair Work Act 2009 (Cth) –
where employer found to have taken adverse action under section 340
– where employer's four directors and related company
found accessorily liable – whether employee made
"complaints or inquiries" under section 341(1)(c)(ii)
– whether "complaints or inquiries" a substantial
and operative reason for dismissal – where two of four
directors gave evidence – challenge to adverse credibility
finding based on misapplication of Jones v Dunkel
inference – no substantial miscarriage of justice – no
retrial – whether penalties manifestly excessive –
reduction in penalties against employer and two directors –
penalties against related company and two directors set aside
– grounds of appeal upheld in part.
INDUSTRIAL LAW – penalties – where declarations made
that employer failed to pay out annual leave entitlements within a
reasonable time under sections 44 and 90(2) – where related
company and four directors found accessorily liable – whether
penalties manifestly excessive – reduction in penalties
against employer and one director – penalties against related
company and three directors set aside – grounds of appeal
upheld in part.
COMPENSATION – quantum – reduction in economic loss to
account for vicissitudes – grounds of appeal upheld in
part.
COSTS – application for extension of time – extension
granted – application for leave to appeal against costs
orders under section 570 – leave granted – costs orders
set aside – no costs – ground of appeal upheld.
Legislation
Commonwealth
Bills
Sex Discrimination and Fair Work (Respect at Work)
Amendment Bill 2021
Senate 26/06/2021 – would strengthen Australia's
anti-discrimination and industrial relations frameworks by
simplifying, clarifying and enhancing protections against sexual
harassment and other forms of sex discrimination in the
workplace.
Mutual Recognition Amendment Bill
2021
Assent Act no: 50. Year: 2021. 24 June 2021.
To introduce a uniform scheme of automatic mutual recognition
(AMR) by enabling an individual who is registered
for an occupation in their home state to carry on those activities
in other states and territories; enable a state minister to exempt
a registration in their state from being subject to AMR for a
renewable period of up to five years because of a significant risk
to consumer protection, the environment, animal welfare or the
health or safety of workers or the public; and enable a state
minister to exempt a registration in their state for a temporary
period.
NSW
Regulations and other miscellaneous instruments
Annual
Holidays Regulation 2021 (2021-288) – published LW 18
June 2021.
Long
Service Leave (Metalliferous Mining Industry) Regulation 2021
(2021-292) – published LW 18 June 2021.
Long
Service Leave Regulation 2021 (2021-293) – published LW
18 June 2021.
Victoria
Date of commencement: 1 July 2021.
Industrial Relations Legislation Amendment Act 2021 (Vic)
Sections 1-56, 58-61, 63-91 of this Act came in by forced
commencement on 1 July 2021 section 2(1).
Act Number: 14/2021.
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.