In the media
Penalty against MCG head contractor over underpayments a
"wake-up call"
A surprise night-time visit to the MCG by Fair Work
Ombudsman inspectors to investigate exploitation of overseas
workers in the venue's supply-chain for cleaning staff has led
to a $132,217 penalty against the Australian arm of a global
cleaning company (29 May 2018).
More...
First claim of unlawful picketing filed in Court over
alleged CFMMEU blockade in Melbourne
The ABCC has commenced the first case alleging
contraventions of the new unlawful picketing provisions against the
CFMMEU and three of its representatives for an alleged blockade of
two Melbourne sites in May 2017. The ABCC alleges
that on 8 May 2017, CFMMEU representatives John Perkovic, Kane
Pearson and Mario Raspudic blocked access to the NewCold1 and
NewCold2 sites, preventing office staff, subcontractors and workers
from entering or leaving the site (29 May 2018).
More...
CFMMEU officials to face court for alleged right of
entry breaches
Two CFMMEU officials are facing allegations in the
Federal Court that they breached right of entry laws at the $222
million Monash Freeway upgrade project in 2017. In the Federal
Court, the ABCC alleges CFMMEU officials James Simpson and Peter
Clark acted in an improper manner when exercising right of entry on
four separate occasions on 29 and 30 April, and on 4 and 9 May 2017
(28 May 2018).
More...
More than $200k in penalties in FWO's first racial
discrimination case
The Fair Work Ombudsman's first racial discrimination
litigation has resulted in penalties of $211,104 against the former
operators of a Tasmanian hotel after they deliberately exploited
two Malaysian employees of Chinese descent (28 May 2018).
More...
CFMEU and MUA amalgamation does NOT impact validity of
CFMEU or MUA right of entry permits under the Fair Work Act
On Tuesday 27 March 2018, the Construction, Forestry,
Mining and Energy Union (CFMEU), Maritime Union of
Australia (MUA), and Textile, Clothing and
Footwear Union of Australia (TCFUA) amalgamated.
The new organisation is called the Construction, Forestry,
Maritime, Mining and Energy Union (24 May 2018).
More...
TWU and Coles bury hatchet with MOU
Now, under a memorandum of understanding
(MOU), Coles and the TWU have signed two
statements of principles — on "safety and fairness for
transport workers in the Coles supply chain" and for "on
demand workers". The first statement includes five principles
to ensure safety and fairness for transport workers within the
Coles supply chain (24 May 2018).
More...
200 regional NSW businesses being audited by the Fair
Work Ombudsman in New England and North West
The Fair Work Ombudsman has commenced audits of more than
200 businesses across the New England and North West regions of
NSW, as part of its latest campaign checking businesses'
compliance with workplace laws (24 May 2018).
More...
$118,000 in penalties after NSW roadhouse operator
"well and truly caught out by FWO"
The Fair Work Ombudsman has secured $118,440 in penalties
in Court after a NSW roadhouse manager tried to deprive an Indian
employee of her Government-funded parental leave pay by falsely
claiming he provided the pay to the employee's husband (23 May
2018).
More...
Labour hire firm suspended amid claims workers suffered
'bleeding episodes'
The National Union of Workers says workers from Vanuatu
were paid as little as $8 an hour and experienced "bleeding
episodes" after breathing in chemicals on a farm in Victoria
(23 May 2018).
More...
Jail term imposed in Fair Work Ombudsman's first
contempt of court case
A Northern Queensland business operator has been jailed
– and then released pending the outcome of his appeal –
as a result of the Fair Work Ombudsman's first
contempt-of-court action (14 May 2018).
More...
Superannuation Guarantee Amnesty
On 24 May 2018, Minister for Revenue and Financial
Services announced the commencement of a 12 month Superannuation
Guarantee Amnesty (the Amnesty). The Amnesty is a
one-off opportunity for employers to self-correct past super
guarantee (SG) non-compliance without penalty (29
May 2018).
More...
In Practice and Courts
ABCC Industry Update April - May 2018
This issue covers Court summary: finalised matters; Court
summary – new matters; High Court rules in favour of ABCC on
personal payment orders; Interlocutory Injunction granted against
CFMMEU and seven union officials at $900 million site; Advice and
assistance on Building Code compliance and Code facts; Are you
being paid correctly?
More...
Cases
Casenote: Unfair Dismissal Case: Whether a Genuine
Redundancy
In Cardy, Tamica v Local Trades Specialists Group Pty
Ltd [2018] FWC 2034, handed down on 30 April 2018, Deputy
President Beaumont criticised the practices of Local Trades
Specialists Group Pty Ltd, trading as Local Trades (Local
Trades).
Fair Work Ombudsman v Yenida Pty Ltd &
Anor [2018] FCCA
1342
INDUSTRIAL LAW – Contraventions of the Fair
Work Act 2009 (Cth) – contraventions of the Fair
Work (Transitional Provision and Consequential Amendments) Act
2009 – underpayment of entitlements – adverse
action –injury – discrimination – because of race
– because of national extraction –considerations of
matters relevant to penalty.
(1) Pursuant to s.546(1) of the FW Act,
penalties of $176,005 be imposed against the First
Respondent.
(2) Pursuant to s.546(1) of the FW Act,
penalties of $35,099 be imposed against the Second Respondent.
One Key Workforce Pty Ltd v Construction, Forestry, Mining
and Energy Union [2018] FCAFC
77
INDUSTRIAL LAW — enterprise agreements —
where labour hire company hired three employees and the three
employees voted to approve an enterprise agreement applying to
employees and prospective employees covered by 11 modern awards
— where employer declared it had explained to the employees
the terms of the agreement and their effect but there was no
evidence of the content of the explanation — where Fair Work
Commission approved agreement and primary judge declared approval
to be void and of no effect, whether primary judge erred in holding
that there was no agreement susceptible of approval — whether
compliance with s.180(5) of the Fair Work Act 2009 (Cth)
is a jurisdictional fact — whether primary judge erred in
holding in the alternative that the Commission's satisfaction
was affected by jurisdictional error — purpose of s.180(5)
— scope of s.188(c) — whether Commission's decision
also affected by jurisdictional error because it failed to take
into account certain considerations in achieving satisfaction that
agreement passed the "better off overall test" under
s.193 or because there was no reasonable basis upon which it could
have been satisfied.
Construction, Forestry, Maritime, Mining and Energy Union v
BGC POS Pty Ltd & Anor [2018] FCCA
1270
INDUSTRIAL LAW – Right of entry – alleged
contraventions of s.502 of the Fair Work Act 2009 (Cth)
– hindering or obstructing – whether parties attempted
to reach agreement – respondents' conduct – whether
failure to include the permit holders' middle name invalidates
a notice of entry and vitiates a right of entry –
contraventions established.
Fair Work Ombudsman v First Group Of Companies Pty Ltd
(Deregistered) & Ors [2018] FCCA
1228
INDUSTRIAL LAW – Pecuniary penalties to be imposed
on second, third and fourth respondents pursuant to s.546(1) of the
Fair Work Act 2009 (Cth) (the Act)
– first respondent contravened provisions of the Act and the
Cleaning Services Award 2010 (the Award) –
first respondent has been deregistered – second and third
respondents were at all material times directors of the first
respondent and have admitted involvement in various contraventions
pursuant to s.550(1) of the Act – fourth respondent is a
contractor providing cleaning services at the Melbourne Cricket
Ground (the MCG) after Australian Football League
matches pursuant to contract with the Melbourne Cricket Club
– first respondent supplied labour to the fourth respondent
to perform cleaning services at the MCG pursuant to a contract with
the fourth respondent – fourth respondent admitted
involvement in various contraventions arising from underpayment of
monetary amounts under the Award pursuant to s.550(1) of the Act
– consideration of approach and matters relevant to
imposition of pecuniary penalties – consideration of
responsibilities of contractor in supply chain when engaging
subcontractors to perform services – penalties
imposed.
Crimes Act 1914 (Cth), s.4AA; Crimes
Legislation Amendment (Serious Drugs, Identity Crime and Other
Measures) Act 2012 (Cth), sch.3 item 7; Evidence Act
1995 (Cth), s.191; Fair Work Act 2009 (Cth), ss.12,
45, 323(1)(c), 340, 342, 357(1), 536(1), 539(2), 546, 550(1), 557,
pt.3-1; Workplace Relations Act 1996 (Cth), s.719(2).
Aerocare Flight Support Pty Ltd v Transport Workers'
Union of Australia [2018] FCAFC
74
INDUSTRIAL LAW – ss.186(3) and 186(3A) of the
Fair Work Act 2009 (Cth) (FW Act) –
judicial review of decision by Fair Work Commission
(Commissioner) and appeal decision of the Full
Bench of the Fair Work Commission (Full Bench)
– disapproval of an enterprise agreement –
non-satisfaction that employees were "fairly
chosen".
ADMINISTRATIVE LAW – jurisdictional error –
whether the Commissioner misconstrued s.186(3A) of the FW Act
– whether the Commissioner was bound to find that workers
under agreement were "organisationally distinct" because
the agreement excluded casual employees, even though their work was
of the same nature – whether Commissioner failed to regard
relevant considerations and material and regarded irrelevant
considerations in deciding whether the group of employees was
"fairly chosen" – purpose of s.186(3) – no
evidence or no available inference ground of review – no
jurisdictional error – unnecessary to consider the reasons
given by the Full Bench – Commissioner's decision founded
on two independent bases – no basis to quash the decision
where only one basis challenged – appeal dismissed. Fair
Work Act 2009 (Cth) ss.171, 186.
Fair Work Ombudsman v G.Q. Industries Pty Ltd &
Anor [2018] FCCA 1237
INDUSTRIAL LAW – Adverse action – admissions
made in statement of agreed facts – contrary to evidence
– application for withdrawal of admissions –
application granted.
Fair Work Act 2009 (Cth), ss.340(1)(a)(ii),
550.
Degenhardt v Ambulance Victoria (No.3)
[2018] FCCA 1113
INDUSTRIAL LAW – Former employee suing to recover
unpaid entitlements – multiple awards applicable over the
course of former employee's employment.
INDUSTRIAL LAW – "On-call" – casual
employee – principles of construction of award and of
contract of employment – whether former employee entitled to
casual loading – whether former employee entitled to penalty
rates.
COMPENSATION – Assessment of applicant's
evidence.
EXPERT EVIDENCE – Alleged expert not an expert
– Dasreef Pty Ltd v Hawchar considerations –
applicant claiming almost $800,000 – no sufficient profits
– applicant awarded $154,841.
Evidence Act 1995; Fair Work Act 2009
(Cth); Limitation of Actions Act 1958 (Vic).
Fair Work Ombudsman v Rum Runner Trading Pty Ltd &
Anor [2018] FCCA
1129
INDUSTRIAL LAW – Breaches of civil remedy
provisions of the Fair Work Act 2009 (Cth) (the
Act) – two proceedings initiated by applicant for
the imposition of pecuniary penalties on respondents – each
proceeding involved different employees – two statements of
agreed facts made by the parties – admitted numerous
contraventions of the Act and Fair Work Regulations 2009
(Cth) (the Regulations) – relevant
considerations – separate declarations made regarding
admitted contraventions in each proceeding – separate orders
made for imposition of pecuniary penalties in each proceeding
– orders made in second proceeding for the purpose of
securing future compliance by the respondents with the Act and the
Regulations requiring respondents to take action and restraining
respondents from engaging in contravening conduct – penalties
imposed.
Crimes Act 1914 (Cth), s.4AA; Crimes
Legislation Amendment (Penalty Unit) Act 2015 (Cth), sch.1
item 2.
Crimes Legislation Amendment (Serious Drugs, Identity
Crime and Other Measures) Act 2012 (Cth), sch.3 item
7.
Fair Work Act 2009 (Cth), ss.3(b), 12, 44, 45,
125(1), 535(1), 536(1), 539(2), 545, 546, 547(2), 550, 557, 559,
712, 716; Fair Work Regulations 2009 (Cth), regs.3.33,
3.44, 4.01A, 4.03A, ch.3 pt.3-6 div.3 sub-div.1.
The FWC Bulletin
This weekly update lists current FWC
decisions:
Volume
20/18 (24 May 2018)
Volume
19/18 (17 May 2018)
Volume
18/18 (10 May 2018)
Volume
17/18 (3 May 2018)
Legislation
Commonwealth
Bills
Fair Work Amendment (Making Australia More Equal) Bill
2018
HR Second reading 21 May 2018 - The Bill amends the
Fair Work Act 2009 to permit the Fair Work Commission
(FWC) to issue a Minimum Entitlements Order which
would extend certain provisions of the Fair Work Act 2009,
modern award or enterprise agreement to workers.
Act Compilation
Paid Parental Leave Act 2010
Act No. 104 of 2010 – 23 May 2018.
Legislative Instruments
Reporting
guidelines for the purposes of section 253 - fifth
edition
This instrument outlines reporting guidelines issued
under subsection 255(1) of the Fair Work (Registered
Organisations) Act 2009 for the purpose of section 253 of that
Act (8 May 2018).
Reporting
guidelines for the purposes of section 270
This instrument outlines reporting guidelines issued
under subsection 255(1) of the Fair Work (Registered
Organisations) Act 2009 for the purpose of section 270 of that
Act (8 May 2018).
Victoria
Acts Assented To
No. 12 Long Service Leave Act
2018
Assent: 15/05/2018 SG (No. 217) 15/5/2018 p. 1
Commencement: NYP Not yet in operation: ss.1-62
In particular, the Act aims at making leave requirements
fairer to those people whose working requirements change during
their working life, such as carers and working women who take a
carer break to look after their children.
Victorian legislation can be accessed
here.
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.
