In the media
Applicants forced to give blood tests, waive privacy
rights to work on Shell's QGC project
A company working on the Shell-owned Queensland Gas
Corporation project tells job applicants they will not be accepted
until they submit to blood tests to check if they are at risk of
heart attack, high cholesterol and other conditions (31 October
2019).
More...
Taking action to make labour hire fairer
The scheme, effective from 30 October, is the biggest
reform of Victoria's labour hire industry and introduces a new
level of integrity and scrutiny to the sector by cracking down on
dodgy operators that exploit, abuse or mistreat workers (30 October
2019).
More...
FWO responds to Woolworths' self-disclosure
The Fair Work Ombudsman is shocked that yet another large,
publicly listed company has admitted to breaching Australia's
workplace laws on a massive scale (30 October 2019).
More...
Coffee Club franchisee to back-pay migrant worker
The operators of a western Sydney café will
back-pay a casual waitress $36,745 and overhaul its workplace
practices, after signing a Court-Enforceable Undertaking with the
Fair Work Ombudsman (29 October 2019).
More...
Melbourne dental operators penalised
The former operators of a Melbourne dental practice have
been penalised a total of $73,000 for underpaying a visa holder
tens of thousands of dollars, following legal action by the Fair
Work Ombudsman (25 October 2019).
More...
Committee recommends crucial IR bills should be
passed
The Morrison Government has welcomed a Senate Committee
report which recommended two key industrial relations bills be
passed by Parliament. The Ensuring Integrity and Proper Use of
Worker Benefits bills will help to curb lawlessness by militant
unions and provide much-needed transparency and accountability to
the way members' funds are managed (25 October 2019).
More...
New toolkit to tighten gender equality
The Workplace Gender Equality Agency has launched a new
online toolkit to promote gender equity throughout Australia's
business community (24 October 2019).
More...
The strategy guide and diagnostic tool can be accessed on the WGEA
website at this PS News
link.
Federal Court decision reaffirms that union officials
must comply with federal right of entry laws
The Federal Court has ruled that union officials must hold
and show a valid federal right of entry permit upon request when
visiting construction sites for safety reasons (23 October 2019).
More...
Café allegedly paid workers in food and
drink
The Fair Work Ombudsman has commenced legal action in
Court against the operators of a Brisbane café that
allegedly partially paid some of its employees in food and drink
(23 October 2019).
More...
FWO recovers $40 million for workers
The Fair Work Ombudsman's 2018-19 Annual Report
reveals a significant increase in recovered wages, record visits to
our resources and firm enforcement of workplace laws. Fair Work
Inspectors recovered more than $40 million for 18,000 underpaid
employees during the financial year - the highest total recoveries
figure in the regulator's history (22 October 2019).
More...
Queensland's labour hire laws
Industrial Relations Minister Grace Grace has issued a
warning to Queensland's labour hire operators, following
another three successful prosecutions in the Caboolture Magistrates
Court this week (18 October 2019).
More...
Federal Court penalises "serial offender"
CFMMEU for enforcing "no ticket, no start" policy
The Federal Court has imposed penalties totalling $69,000
against the CFMMEU and its shop steward Kevin Pattinson for
preventing an apprentice and electrician from working on a
Frankston construction site because they were not members of the
union (14 October 2019).
More...
Aldi blockade leads to $80,000 penalty for CFMMEU,
personal payment order for organiser
The Federal Court has awarded penalties totalling $92,000
against the CFMMEU and an experienced organiser for their
involvement in a blockade of Aldi's Altona store during its
construction in 2014 (11 October 2019).
More...
CFMMEU and its site delegate to face court for allegedly
coercing worker to join union
The ABCC has taken legal action against the CFMMEU and its
delegate James Fissenden alleging in March this year they
threatened to prevent a shopfitter from working at the Sunshine
Plaza Shopping Centre site in Maroochydore until he joined the
union (10 October 2019).
More...
Almost 200 staff made redundant following sale of Albury
Paper Mill
Operations will cease at Albury's Norske Skog paper
mill, with 183 employees to lose their jobs after the company
announced the sale of its Ettamogah site to Australian papermaker
Visy (04 October 2019).
More...
Greater certainty for employers when hiring staff with
criminal records
Changes to anti-discrimination laws have come into effect
that give employers greater certainty about when they can and
cannot reject job applications from people with criminal records
(03 October 2019).
More...
Restaurant allegedly underpaid visa worker $150k
The Fair Work Ombudsman has commenced legal action against
the operators of the Blue Moon Restaurant in western Sydney,
alleging they underpaid an Indian worker they were sponsoring on a
457 skilled worker visa more than $150,000 (03 October 2019).
More...
Unpaid wages recovered for Subway employees
The Fair Work Ombudsman has recovered $81,638.82 in unpaid
wages for 167 current and previous employees, following
investigations into 22 Subway franchisees (01 October 2019).
More...
Subway's underpayment concerns realised
After months of allegations and intense media scrutiny,
fresh-food franchise Subway's underpayment concerns have
finally been realised. On Tuesday, the Fair Work Ombudsman
announced that it had recovered $81,638.82.
More...
Published reports articles, speeches
Department of Jobs and Small Business: Monthly Leading
Indicator of Employment October 2019
The Monthly Leading Indicator of Employment (the
Indicator) has fallen for the fifteenth consecutive month in
October 2019, after eleven consecutive monthly rises.
More...
Australian Bureau of Statistics
24/10/2019
Labour Force, Australia, Detailed - Electronic Delivery, Sep
2019 (cat no. 6291.0.55.001
17/10/2019
Labour Force, Australia, Sep 2019 (cat no. 6202.0)
03/10/2019
Labour Force, Australia: Labour Force Status and Other
Characteristics of Families, June 2019 (cat no.
6224.0.55.001)
In practice and courts
FWC: Annual report 2018–19 published
The Fair Work Commission published our annual report for
the 2018–19 financial year following its tabling in the
Australian Parliament (22 October 2019).
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 changes,
including information on insolvency, termination at the
employer's initiative, transferring employees, procedural
fairness, and representation by lawyers and paid agents (21 October
2019).
More...
FWC: Benchbooks updated
The Fair Work Commission has published an updated versions
of:
The Anti-bullying
benchbook reflects recent case law and rules changes, including
information on amending applications, rescheduling or adjourning
matters, bias, representation by lawyers and paid agents and orders
the Commission can make.
The Industrial
action benchbook reflects recent case law including information
on interim orders, covert industrial action and employer response
action (07 October 2019).
More...
Victoria: Labour hire providers
From 30 November 2019, only labour hire providers that
have been granted a licence, or have a decision pending on their
application, are allowed to operate in Victoria. More...
Cases
Australian Rail, Tram and Bus Industry Union v
Railtrain Pty Ltd [2019] FCA
1740
INDUSTRIAL LAW – accessorial liability –
involvement in – aided or abetted contravention –
knowingly involved – whether necessary to plead knowledge
that persons employees
PRACTICE AND PROCEDURE – application for summary judgment
– need for caution – striking out of pleadings –
the different principles applicable
Australian Building and Construction Commissioner v
Construction, Forestry, Maritime, Mining and Energy Union (The
Bruce Highway Caloundra to Sunshine Upgrade Case)
(No 2) [2019] FCA 1737
INDUSTRIAL LAW – where union officials entered site
"pursuant to" s 81(3) of the Workplace Health and Safety
Act 2011 (Qld) – where union officials did not produce entry
permits under the Fair Work Act 2009 (Cth) – whether s 81(3)
of the Workplace Health and Safety Act 2011 (Qld) creates a
"State or Territory OHS right" within the meaning of s
494 Fair Work Act 2009 (Cth) – alleged contraventions of ss
494, 497 and 500 of the Fair Work Act 2009 (Cth)
Western Union Business Solutions (Australia) Pty Ltd v
Robinson [2019] FCAFC
181
INDUSTRIAL LAW – Fair Work Act 2009 (Cth) s 351(1)
– adverse action – mental disability – whether
prolonged failure to attend work a manifestation of Appellant's
disability – consideration of Shizas v Commissioner of
Police [2017] FCA 61; 268 IR 71 – not a manifestation
– no adverse action because of Appellant's
disability
INDUSTRIAL LAW – Fair Work Act 2009 (Cth) s 351(1) –
adverse action – mental disability – mental process of
decision-maker – where decision-maker did not know whether or
not Appellant was ill and believed he was not– where decision
maker did not perceive failure to attend work to be a manifestation
of Appellant's disability – no adverse action because of
Appellant's disability
INDUSTRIAL LAW – Fair Work Act 2009 (Cth) s 351(2)(b)
– adverse action – mental disability – whether
employee could not perform inherent requirement of employment
– Appellant unwilling or unable to perform duties – no
adverse action because of Appellant's disability
INDUSTRIAL LAW – Fair Work Act 2009 (Cth) s 545 –
adverse action – mental disability - compensation order
– likelihood of return to work – refusal to attend
independent medical examination an alternative and sufficient
reason for termination – no economic loss sustained
Fair Work Ombudsman v NoBrace Centre Pty Ltd (In
Liquidation) (ACN 121 556 447) & Ors
(No.2) [2019] FCCA 2970
INDUSTRIAL LAW – application for imposition of
pecuniary penalties – multiple contraventions of a civil
penalty provision – liability established against principal
contravenor which is placed in voluntary liquidation –
accessory liability established against second and third
respondents – accessories found liable as being involved in
contraventions to differing extents – contraventions involved
failure to pay minimum weekly wages, overtime, weekend loading,
public holiday rates, holiday penalty rates, annual leave and leave
loading – where respondents and employee participated in sham
to obtain working visa and ENS visa for permanent residence –
applicable principles – penalties imposed
INDUSTRIAL LAW – application for award of compensation
– jurisdictional requirement that a person has contravened a
civil remedy provision – findings made against principal
contravenor – other respondents found to have been involved
in contraventions – person involved in contravention taken to
have contravened civil remedy provision – court must be
satisfied it is appropriate to make order of the kind sought
– applicable principles – compensation ordered
INDUSTRIAL LAW – application for orders that first and second
respondent be jointly and severally liable for compensation –
where accessories found liable to differing extents – whether
open or appropriate to make orders that accessories are jointly
liable – where not impracticable to give separate judgements
against accessories for their respective liabilities for
compensation and interest – orders conditioned on terms to
prevent double recovery
Fair Work Act 2009 (Cth), ss.3, 44, 45, 90, 134, 323, 535, 536,
539, 545, 546, 547, 550, 557, 557A, 682, 712, 716
Fair Work Regulations 2009 (Cth), regs.3.33, 3.44, 3.36, 4.01A
Bartlett v Signostics Ltd (In
Liquidation) [2019] FCCA
2989
INDUSTRIAL LAW – CIVIL PENALTY PROVISION –
contravention of National Employment Standards – non-payment
of untaken annual leave on termination of employment –
pecuniary penalty – order for compensation
INDUSTRIAL LAW – ACCRUED JURISDICTION – contractual
claims arising from applicants employment – common substratum
of facts – orders for payment of amounts owed pursuant to
contracts
INDUSTRIAL LAW – PECUNIARY PENALTY – where senior
management involved in contravention – where forged document
relied on by respondent – where sustained and deliberate
conduct by respondent amounted to serious contravention
INDUSTRIAL LAW – COSTS – Indemnity costs
Fair Work Act 2009 (Cth), ss.14, 44(1), 90(2), 338(2), 539, 545,
545(1) & (2)(b), 546, 547, 557, 557A & 557B &
570(2)
Fair Work Ombudsman v Jenni International Pty Ltd &
Anor [2019] FCCA
2971
INDUSTRIAL LAW – Accessorial liability –
whether the Second Respondent was knowingly concerned in the First
Respondent's contraventions – contraventions of the
General Retail Industry Award – underpayment of
non-Australian citizen employees
Fair Work Act 2009 (Cth), ss.44, 45, 90(2), 535(1), 536(1), 545(1),
547(2), 550(1), 550(2)(c), 559
Fair Work Regulations 2009 (Cth), regs.3.32, 3.33, 3.34, 3.36,
3.37, 3.40
Construction, Forestry, Maritime, Mining and Energy
Union v Asbestos Removalist Pty Ltd & Anor
[2019] FCCA 2977
INDUSTRIAL LAW – application for civil penalty
– first respondent in liquidation – findings as to
liability of second respondent – subsequently declared
bankrupt – appropriate penalty
Bankruptcy Act 1966 (Cth) ss.60, 82; Fair Work Act 2009 (Cth),
ss.539, 546, 557
Australian Building and Construction Commissioner v
Pattinson [2019] FCA
1654
INDUSTRIAL LAW – pecuniary penalties – agreed
contraventions – false or misleading statement about an
obligation to engage in "industrial activity" –
application of "no ticket, no start" philosophy –
contravener knew statement was misleading, or was reckless as to
that fact – analysis of the nature, gravity, character and
seriousness of the contraventions – whether history of
contravening conduct should inform the court's assessment of
how objectively serious the agreed contraventions were –
application of "course of conduct" and
"totality" principles – appropriateness of
declaratory relief
Building and Construction Industry (Improving Productivity) Act
2016 (Cth) ss 5, 15
Conciliation and Arbitration Act 1904 (Cth) ss 5, 9
Fair Work Act 2009 (Cth) Pt 3-1, ss 12, 336, 340, 343, 346, 347,
348, 349, 363, 500, 539, 546, 570
Fair Work (Registered Organisations) Act 2009 (Cth)
Industrial Relations Act 1988 (Cth) s 170DF
The first respondent pay pecuniary penalties totalling
$6,000.00
The second respondent pay pecuniary penalties totalling
$63,000.00
Australian Building and Construction Commissioner v
Construction, Forestry, Maritime, Mining and Energy Union (The
Aldi/Altona North Case) (No 2) [2019] FCA
1667
INDUSTRIAL LAW – admitted contraventions of s 348 of
the Fair Work Act 2009 (Cth) ("Act") which provides that
a person must not organise or take or threaten to take any action
to coerce another person to engage in industrial activity –
admitted contraventions of s 346(c) of the Act which provides that
a person must not take adverse action against another person
because the person does not or is not or proposes not to engage in
industrial activity – making of declarations –
principles relating to imposition of pecuniary penalties –
the relevance of previous contraventions by the respondents of
industrial legislation to the penalty to be imposed –
proportionality of penalty to contravening conduct – general
deterrence – specific deterrence – whether a single
course or multiple courses of conduct – principle of totality
– whether a personal payment order should be imposed on the
second respondent. Fair Work Act 2009 (Cth), ss 346, 347(b)(iv),
348, 539, 546(1) 556
The First Respondent pay the following pecuniary penalties:
(a) $40,000 in respect of its contravention of s 348 of the FW Act
dealt with in declaration 3(a); and
(b) $40,000 in respect of its contravention of s 348 of the FW Act
dealt with in declaration 3(c).
Ghimire v Karriview Management Pty Ltd (No
2) [2019] FCA 1627
INDUSTRIAL LAW – appeal from decision of Industrial
Magistrate – where appellants had undertaken work and
received no payment – where employer kept no records –
consideration of record keeping obligation under s 557C of the Fair
Work Act 2009 (Cth) – where employer had burden of disproving
the allegation made by employees – where claim brought under
the small claims procedure in the Industrial Magistrates Court
– consideration of the nature of the appeal – whether
the magistrate erred in misapplying the burden of proof under s
557C – whether the magistrate erred in failing to draw an
adverse inference from the employer's failure to call evidence
from any material witnesses – finding that the employer
failed to discharge the burden of proof - appeal allowed
Fair Work Ombudsman v Westside Petroleum Retail 1 Pty
Ltd & Ors [2019] FCCA
2784
INDUSTRIAL LAW – breaches of a civil remedy
provision of the Fair Work Act 2009 – imposition of pecuniary
penalties – relevant considerations
INDUSTRIAL LAW – accessorial liability for breaches of a
civil remedy provision of the Fair Work Act 2009 – imposition
of pecuniary penalties.
(1) The first respondent pay pecuniary penalties totalling
$45,000
Legislation
Commonwealth
Bills
Paid Parental Leave Amendment (Work Test) Bill
2019
Assent Act no: 84 Year: 2019 28 October 2019
Amends the Paid Parental Leave Act 2010 to enable the paid parental
leave work test period for a pregnant woman in an unsafe job to be
moved from the 13-month period prior to the birth of her child to
the 13-month period before she had to cease work due to the hazards
connected with her employment and the subsequent risk to her
pregnancy; and extend the permissible break in the paid parental
leave work test to enable parents to have a gap of up to 12 weeks
between two working days and still meet the work test.
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.