In the media
Geelong businesses under FWO microscope
Fair Work inspectors completed surprise audits of around
80 businesses in the university suburbs of Geelong, following
intelligence that employers in the area were at risk of breaching
workplace laws (31 May 2019).
More...
Annual Wage Review 2018–19 decision issued
The Fair Work Commission issued the Annual Wage Review
2018–19 annual wage review, Major case, Decision (30 May
2019)
More...
Melbourne toy retailer faces increased penalties
The Fair Work Ombudsman has commenced its first legal
action under the serious contravention provisions of the Protecting
Vulnerable Workers laws, for the alleged underpayment of workers
selling Christmas toys (29 May 2019).
More...
Software companies sign up to FWO scrutiny
Two Sydney businesses have back-paid two visa holders a
total of $34,429 as part of a Court-Enforceable Undertaking
(EU) with the Fair Work Ombudsman (28 May 2019).
More...
Trolley collectors protected under new Proactive
Compliance Deed with the FWO
Australia's largest trolley collection company United
Trolley Collections (UTC) has renewed a compliance
partnership with the Fair Work Ombudsman to ensure trolley
collectors' workplace rights are protected (17 May 2019).
More...
Monthly Leading Indicator of Employment: latest
release
The Department of Jobs and Small Business has released the
May edition of the Monthly Leading Indicator of Employment. The
Indicator has fallen for the thirteenth consecutive month in May
2019, after eight consecutive monthly rises (15 May 2019).
More...
Couple lodges court claim for almost $500k in unpaid
wages
Bill and Jackie Lakovski say they worked 60 hours a week
each — often overnight — with no penalty rates or
superannuation for a cleaning company that provides services for a
Melbourne council (13 May 2019).
More...
FWO and ASIC join forces to target first-time directors
to recover almost $40,000 for workers
The Fair Work Ombudsman (FWO) has
recovered wages for 99 underpaid Melbourne workers in a joint
campaign with the Australian Securities and Investments Commission
(ASIC) (10 May 2019).
More...
ABCC takes court action over unlawful picket of Sydney
crane company
The ABCC has filed Federal Court proceedings against the
CFMMEU and several of its NSW officials over alleged unlawful
pickets of a Sydney-based crane company on 25 and 30 January 2019
(09 May 2019).
More...
Federal court ups penalty for company paying strike
pay
The Federal Court has increased a penalty awarded against
building company J Hutchinson Pty Ltd from $1,200 to $20,000. The
ABCC filed an appeal from the Federal Circuit Court's original
decision on the basis the penalty was manifestly inadequate (08 May
2019).
More...
Sydney printing business faces court
A Sydney printing finishing business and its operator will
face the Federal Circuit Court for allegedly failing to satisfy the
requirements of a Compliance Notice issued to it by the Fair Work
Ombudsman (08 May 2019).
More...
Published - reports, articles, speeches
Transforming Australian manufacturing: Preparing
businesses and workplaces for Industry 4.0
PricewaterhouseCoopers Australia: 16 May 2019
Industry 4.0 is rapidly changing Australia's manufacturing
industry. This research, undertaken by PwC, on behalf of Swinburne
University, Siemens and the Australian Manufacturing Workers'
Union (AMWU), identifies the ways in which
businesses and workforces must adapt to these changes. More...
Estimating wage trends from personal income tax
data
Jim Stanford; Centre for Future Work; 15 May 2019
This analysis of income tax data confirms a dramatic slowdown in
Australian wages in recent years – and the slowdown is worse
than previous statistics indicated. More...
Humans wanted: Robots need you Australia
ManpowerGroup: 01 May 2019
Robot workers replacing human jobs – the debate of the
decade. In reality, the opposite looks true. This report in
Australia shows more employers than ever (84 per cent) plan to
increase or maintain their headcount as a result of automation. More...
In practice and courts
FWC: Online Enterprise agreements benchbook
launched
The Fair Work Commission launched an interactive online
version of our agreements benchbook. It contains plain English
summaries of the key principles of enterprise agreement case law,
and examples of how these have been applied in Commission decisions
(27 May 2019). More...
More...
FWC: Annual Wage Review 2018–19 decision
The Fair Work Commission issued the Annual Wage Review
2018–19 decision.
A summary of the decision is available on the
Summaries of significant decisions page on the Commission's
website.
More...
More...
FWO: Changes to the Real Estate Award
On 1 May 2019, the Fair Work Commission handed down a
decision to change the Real Estate Award.
The decision changes how commission-only payments for salespersons
apply and who they apply to.
The changes apply in 2 stages. The first from the first full pay
period on or after 30 April 2019 and the second from the first full
pay period on or after 30 June 2019 (May 2019).
More...
Victorian labour hire licensing scheme will commence on
29 April 2019
From 29 April labour hire providers will have six months
to apply for a licence to operate in Victoria.
The Minister for Industrial Relations Tim Pallas announced the
beginning of the scheme, aimed at making the labour hire system
fairer for workers, businesses and providers.
More...
Feedback on changes to construction industry long
service leave scheme
Public comment is also being sought from industry
stakeholders on support for a small increase in the workplace
health and safety levy to enhance support for mental health and
suicide prevention in the building and construction industry.
Feedback on the proposed changes and their impact can be submitted
through the Office of Industrial Relations website or the Queensland
Government's Get Involved website. Submissions
should be made by close of business on 30 May 2019.
Cases
Strydom v CBD Refrigeration & Air Conditioning Pty Ltd
& Ors [2019] FCCA
1444
INDUSTRIAL LAW – Allegation of adverse action
– whether employee resigned from employment – whether
employment terminated for reason other than exercising of workplace
right – whether employee paid notice in lieu of termination
– whether employee provided with payslips within prescribed
period.
Fair Work Act 2009 (Cth), ss.14, 44, 45, 117, 323, 324,
340, 341, 342, 361, 536, 550
Fair Work Ombudsman v Hasegawa & Ye International Pty
Ltd & Anor [2019] FCCA
1424
INDUSTRIAL LAW – Fair Work Act 2009 (Cth)
– Fair Work Regulations 2009 (Cth) – fast food
industry – admitted contraventions for underpayment of
employees – contraventions objectively serious –
pecuniary penalties imposed as well as other agreed relief.
Fair Work Act 2009 (Cth), ss.45, 535, 545, 546, 547, 550,
557; Fair Work Regulations 2009 (Cth)
Director, Fair Work Building Industry Inspectorate v Devine
Constructions Pty Ltd & Ors [2019] FCCA
1394
INDUSTRIAL LAW – Application for the imposition of
pecuniary penalties – whether principal under a contract for
services took adverse action against contractor – whether
adverse action taken because contractor did not have an enterprise
agreement that covered CFMEU – whether principal
discriminated against contractor because contractor did not have an
enterprise agreement that covered CFMEU.
Fair Work Act 2009 (Cth), ss.340, 340(1), 342, 342(1),
354, 354(1)(a)(iii), 550, 550(1), 361
Bluescope Steel (AIS) Pty Ltd v Australian Workers'
Union [2019] FCAFC
84
INDUSTRIAL LAW – appeal – whether failure to
comply with s 50 of the Fair Work Act 2009 (Cth) and Item
15 of Sch 16 to the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009 (Cth) – employees
paid annualised or aggregate salary – industrial awards and
agreements – obligation to work additional hours and public
holidays under annualised or aggregate salary – construction
of superannuation clauses in industrial instruments – whether
obligation to make superannuation contributions for overtime or
additional hours and public holiday penalty rates – whether
earnings for additional hours were "earnings in respect of
ordinary hours of work" – whether earnings for public
holidays were "earnings in respect of ordinary hours of
work" – whether employee co-contributions should be
taken into account in complying with obligation to make
superannuation contributions – Commissioner of Taxation
granted leave to intervene
SUPERANNUATION – history and purpose of superannuation regime
– whether the Superannuation Guarantee (Administration)
Act 1992 (Cth) and the Superannuation Guarantee Charge Act
1992 (Cth) impose a binding legal obligation to pay
superannuation – proper construction of s 6(1) of the
Superannuation Guarantee (Administration) Act 1992 (Cth)
– construction of "earnings in respect of ordinary hours
of work" – appeal allowed
Pacheco-Hernandez v Duty Free Stores Gold Coast Pty Ltd
(No.2) [2019] FCCA
1295
INDUSTRIAL LAW – Assessment of pecuniary penalties
for contravention of s.340 of the Fair Work Act 2009 (Cth)
– pecuniary penalty ordered
Fair Work Ombudsman v Zucco Farming Pty Ltd &
Anor [2019] FCCA
1277
INDUSTRIAL LAW – Civil penalty determination –
first respondent operates stone fruit farm – engages two
employees on casual basis over nine months paying under Award wages
and no causal loading – respondents deny misconduct
throughout investigation – proceeding listed for liability
hearing – applicant serves evidence – new solicitor
appointed to act for respondents – mediation –
admission of liability – repayment of wages owing with
interest – respondents proactively comply with regulators
demands for compliance with workplace laws and re-education
programs – applicable principles – penalties
imposed.
Fair Work Act 2009 (Cth), ss.3, 45, 535, 536, 539, 545,
546, 550, 557
Clarke v Australian Outdoor Living (Victoria) Pty
Ltd [2019] FCCA
1234
INDUSTRIAL LAW – Commission – applicant
claimed entitled to commission – disagreement as to amount of
commission owed – applicant claimed commission owed for large
number of transactions – respondent agreed that all
transactions were complete (save as to five such transactions)
– respondent contends that the applicant has been paid for
all completed transactions – dispute as to payment –
set-off – respondent claims that amounts due by applicant in
respect of unrelated transactions were set-off against commission
that was payable – whether set-off available – whether
payments made – relief granted.
Fair Work Act 2009 (Cth), ss.12, 139, 323-324, 548,
548(1A)
Fair Work Ombudsman v Northcoast Security Services Group
Pty Ltd & Ors (No.2) [2019] FCCA
1198
INDUSTRIAL LAW – Application for pecuniary penalties
against second and third respondents on the ground they were each
involved in the first respondent's contraventions of terms of
an award in relation to a number of alleged employees, such
contraventions consisting of the failure to pay amounts owing under
the award – whether the first respondent was the employer of
the alleged employees – the first respondent held to be the
employer of the alleged employees – whether second and third
respondents knew of the facts that constituted the first
respondent's failure to pay to the employees amounts owing
under the award – whether the second and third respondents
were aware that an award applied to the employees – second
and third respondents each had knowledge of the facts –
second and third respondents also had knowledge an award applied to
the employees – each of the second and third respondents
involved in first respondent's contraventions of the award
– whether Court has power to order compensation to any of the
employees in circumstances where the employees are not parties to
the proceeding – leave reserved to hear argument on that
question.
Fair Work Act 2009 (Cth), ss. 13, 14, 45, 323(1)(a),
535
Australian Building and Construction Commissioner v J
Hutchinson Pty Ltd T/A Hutchinson Builders
[2019] FCA 667
INDUSTRIAL LAW – appeal from a penalty imposed by
the Federal Circuit Court – penalty for contravention of s
474(1)(b) of the Fair Work Act 2009 (Cth) – where
primary judge imposed a penalty of $1,200 total for ten
contraventions – whether primary judge failed to treat
deterrence as the principal object of the discretion to impose a
penalty – whether penalty imposed was manifestly inadequate
– where primary judge stated that the purposes of civil
penalties are punishment, deterrence and rehabilitation –
penalty set aside
INDUSTRIAL LAW – where penalty set aside – fresh
exercise of the discretion to impose a penalty where maximum
penalty is $510,000 – where a managing director of the
respondent was aware of the unprotected industrial action but did
not follow up on whether there had been compliance – where
respondent is a major building company – significance of the
role of general deterrence – where this is the first time the
respondent has contravened
Fair Work Ombudsman v Transpetrol TM AS (No
2) [2019] FCA 608
Conclusion: "In my opinion, for the reasons
above, the Ombudsman unreasonably sought far higher penalties than
the circumstances of the case could have warranted and unreasonably
caused Transpetrol to incur costs, first, in defending itself
against their imposition and, secondly, establishing its right to
set off in accordance with the established authorities
Having regard to all of the circumstances, I consider that the
justice of the case warrants an order that the Ombudsman pay 50% of
Transpetrol's costs."
Fair Work Ombudsman v Nobrace Centre Pty Ltd &
Anor [2019] FCCA
1148
INDUSTRIAL LAW – Fair work action – unpaid
wages – failure to comply with s. 716 compliance notice
– accessorial liability – director's liability for
company breach – reasonable excuse defence – liability
found.
Fair Work Act 2009 (Cth), ss.14, 116, 539, 550, 701, 715,
716, 717
CPB Contractors Pty Limited v Construction, Forestry,
Maritime, Mining and Energy Union [2019]
FCAFC 70
INDUSTRIAL LAW – enterprise agreements –
whether coverage clause unlawful for the purposes of s 194(ba) of
the Fair Work Act – clause was not inconsistent with
s 58(2) of the FW Act – s 194(ba) directed to
clauses that provide for methods of election for employees or
employers to opt out of enterprise agreements – clause 3.3 of
the agreement did not engage s 194(ba) as it did not provide for
any method of election – the making and approval of a new
enterprise agreement does not constitute election –
application allowed in part.
STATUTORY CONSTRUCTION – reference to secondary and extrinsic
materials – when such reference is necessary to identify the
context and purpose of a statutory provision
Basi v Namitha Nakul Pty Ltd [2019]
FCA 743
INDUSTRIAL LAW – proceeding alleging serious
contraventions of the Fair Work Act 2009 (Cth) –
where applicant alleges being underpaid and overworked in
contravention of the Restaurant Industry Award 2010 and the
Fair Work Act 2009 (Cth)
INDUSTRIAL LAW – interlocutory application seeking freezing
orders pursuant to r 7.32 of the Federal Court Rules 2011 (Cth)
– where freezing orders were made – application for the
extension of the freezing orders – principles of freezing
orders – where the applicant had an arguable case for the
purposes of r 7.35(1)(b) of the Federal Court Rules 2011 (Cth)
– whether there was a danger that a prospective judgment
would be wholly or partly unsatisfied because the respondents might
either abscond or dispose of or remove their assets from Australia
– whether the balance of convenience weighed against the
continuation of the freezing orders – whether freezing orders
lacked utility due to few assets – whether adverse publicity
was a persuasive discretionary reason for refusing to extend the
freezing orders – where Court was satisfied that there was a
danger that any judgement obtained by the applicant would be wholly
or partly unsatisfied if freezing orders were not extended –
freezing orders extended until further order. Fair Work Act
2009 (Cth) ss 44, 45, 90(2), 325, 343, 345, 535, 557A
Adachi v Qantas Airways Ltd [2019]
FCCA 1107
PRACTICE AND PROCEDURE – Application to strike out
points of claim.
INDUSTRIAL LAW – Adverse action claim. Fair Work Act
2009 (Cth), ss.340, 341, 361
Paragraphs 7 to 17, 24 to 26 and 49 of the Applicant's points
of claim be struck out
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.
