In the media
Workers from Flight Centre Travel Group take company to
Fair Work Commission
Staff claiming to have been underpaid at Flight Centre
subsidiary Travel Money Oz are taking their case to the Fair Work
Commission. This comes after former Flight Centre staff came
forward with claims of underpayment and bullying at the travel
giant (31 August 2018).
More...
Queensland's lowest paid workers set to receive pay
increase
Industrial Relations Minister Grace Grace welcomed the
decision of the Queensland Industrial Relations Commission
(QIRC) to increase award rates of pay for
Queensland's lowest paid workers covered by the state
industrial relations jurisdiction (30 August 2018).
More...
FWO to conduct 200 workplace audits in NSW
The Fair Work Ombudsman will audit at least 200
businesses across outer west Sydney, the Blue Mountains and
Wollondilly in its latest proactive compliance and education
campaign (28 August 2018).
More...
Union launches legal action to scuttle Woolworths EBA
and get $1b in backpay
A small breakaway union seeks to overturn the contentious
2012 Woolworths enterprise agreement, following success in
terminating a similar agreement with Coles (23 August 2018).
More...
Record penalties against technology company
The Fair Work Ombudsman has obtained record penalties
against Brisbane-based Macquarie Technology Group International Pty
Ltd and owner Paul Desmond Wallace for failing to comply with an
order to compensate an employee who had been unfairly dismissed (20
August 2018).
More...
Body of work' needed on slavery in supply
chains
One in five procurement managers say their organisation
hasn't taken steps on modern slavery. Experts say the Modern
Slavery Act will significantly impact how governments and companies
procure goods and services, so why aren't more procurement
managers ready (16 August 2018).
More...
Penalties necessary for effective Modern Slavery
laws
Financial penalties should be levied upon entities that
fail to report their modern slavery risks under the proposed
legislation, the Law Council has told a parliamentary committee (03
August 2018).
More...
Code for ethical treatment of clothing workers
reauthorised
Ethical Clothing Australia's Homeworkers Code of
Practice, which helps reduce the exploitation of textile, clothing
and footwear (TCF) workers in Australia, has been
reauthorised by the ACCC for a further ten years. The Code imposes
obligations on participants in the supply chain to demonstrate that
they provide award wages and conditions to textile, clothing and
footwear workers (30 August 2018).
More...
New regulations to oversee labour hire industry in
Victoria
The Andrews Labor Government has released draft
regulations to support the new Labour Hire Scheme that will protect
the wages and conditions of some of Victoria's most vulnerable
workers. The proposed regulations focus on workers at the highest
risk, including horticulture, the meat industry and cleaning (07
August 2018).
More...
Labour hire provider loses license to operate in
Queensland
Industrial Relations Minister Grace Grace has confirmed a
labour hire provider operating in the Lockyer Valley region has had
its labour hire license cancelled. This is Queensland's first
cancellation (07 August 2018).
More...
Landmark decision on sick leave for shift workers
In AWU v AstraZeneca Pty Ltd [2018] FWC 4660,
the Fair Work Commission (the "FWC") has
handed down a ruling against AstraZeneca where the company was
using the standard industry practise of providing an average of 76
hours of paid leave, based on the average of a 7.6 hour working day
(08 August 2018). More...
Millions of workers across Australia now have access to
unpaid domestic violence leave
Employees on modern awards can now take up to five days
of unpaid leave to deal with family and domestic violence. But when
it costs about $18,000 to flee an abusive relationship, some have
questioned whether the ruling goes far enough (01 August 2018).
More...
CFMMEU and two officials penalised $271,500 for
'defiant' and 'disgraceful' conduct on Bendigo
site
The Federal Court has imposed penalties totaling $271,500
against the CFMMEU and two of its officials after they refused to
show their right of entry permits and were abusive when asked to do
so at the Bendigo Theatre site in Victoria (14 August 2018).
More...
Full Federal Court reinforces concerns over CFMMEU's
blatant unlawful behaviour; upholds maximum penalty
The Full Federal Court has upheld an earlier decision of
the Federal Circuit Court to impose maximum penalties on the CFMMEU
for the unlawful conduct in February 2015 of its then Queensland
President Dave Hanna. In October 2017 the Federal Circuit Court in
Brisbane imposed the maximum penalty of $306,000 on the CFMMEU
following Mr Hanna contravening right of entry laws at a Fortitude
Valley construction site (14 August 2018).
More...
Federal Court makes first personal payment order against
CFMMEU repeat offender
Following a landmark ruling by the High Court earlier this
year the Full Federal Court has ordered CFMMEU official Joseph
Myles to personally pay a penalty of $19,500. The order prevents Mr
Myles from seeking any financial benefit from the CFMMEU to pay the
penalty (02 August 2018).
More...
In practice and courts
FWO: New unpaid family & domestic violence leave
entitlement
Most employees will be able to take unpaid leave to deal
with family and domestic violence from 1 August, following a Fair
Work Commission decision. The Fair Work Commission have updated all
industry and occupation awards to include a new clause about family
and domestic violence. This new clause applies from the first full
pay period on or after 1 August 2018.
More...
ABCC: Zero tolerance for drugs and alcohol on
construction sites
The ABCC regulates the Code for the Tendering and
Performance of Building Work 2016. The Code has strict rules
about fitness for work. Code covered contractors are reminded that
they must ensure all of their sites have an approach to managing
drug and alcohol issues in the workplace. The relevant drugs are
those listed in Schedule 4 to the Building Code (02 August 2018).
More...
ABCC Code for the Tendering and Performance of Building
Work 2016
The Code for
the Tendering and Performance of Building Work 2016 applies to
companies who wish to undertake Commonwealth-funded building work.
Building industry participants covered by agreements made prior 2
December 2016 have until 29 November 2018 to ensure their
agreements are Code compliant.
QLRC: Civil surveillance and privacy review; Workplace
surveillance review
Employers use optical surveillance, data monitoring and
tracking devices for a number of legitimate reasons, including to
ensure employee health and safety, protect property from theft and
damage, prevent fraud and monitor employee performance. The terms
of reference can be found here and the QLRC will report
back by 1 July 2019 (civil surveillance) and by 30 June 2020
(workplace surveillance).
Cases
Australian Building and Construction Commissioner v
O'Connor (No 4) [2018] FCA
1293
INDUSTRIAL LAW – consideration of the appropriate
declarations to be made against the respondents in respect of
contraventions of the civil remedy provisions of the Fair Work
Act 2009 (Cth) – consideration of the appropriate
penalties to be imposed on the second and third respondents –
where first respondent found to have contravened ss 348, 355 and
500 of the Fair Work Act 2009 (Cth) – where second
respondent found to have contravened ss 348 and 355 of the Fair
Work Act – where third respondent found to have
contravened ss 348, 355 and 500 of the Fair Work Act
– consideration of the approach to pecuniary penalties for
contraventions of civil remedy provisions of the Fair Work
Act – factors to be taken into account when assessing
the penalty to be imposed – nature and extent of the
contravening conduct – loss and damage caused by the
contravening conduct – whether the conduct constituting the
contravening conduct was deliberate – extent of any benefit
or profit derived from the contravening conduct – extent of
co-operation with the applicant and of any contrition shown for the
contravening conduct – financial circumstances of the second
and third respondents – any corrective action taken by the
respondents – prior contraventions – general and
specific deterrence – totality.
Broadspectrum (Australia) Pty Ltd v United
Voice [2018] FCAFC 139
INDUSTRIAL LAW – Pt 2-4 of the Fair Work Act
2009 (Cth) ("FW Act") – the
process for the making and approval of a single-enterprise
agreement which is not a greenfields agreement
("single-enterprise (non-greenfields)
agreement") under Div 4 of Pt 2-4 of the FW Act
– approval of a single-enterprise (non-greenfields) agreement
by the Fair Work Commission ("FWC")
under s 186(1) of the FW Act – the nature of the requirement
under s 172(2)(a) of the FW Act that an employer may make a
single-enterprise (non-greenfields) agreement "with employees
who are employed at the time the agreement is made and who will be
covered by the agreement" – the requirement under s
186(2) of the FW Act that in approving a single-enterprise
(non-greenfields) agreement the FWC be satisfied that "the
agreement has been genuinely agreed to by the employees covered by
an agreement" – the nature and content of the statutory
task of the FWC under s 186(2)(a) of the FW Act – whether the
FWC fell into jurisdictional error in assessing whether the
relevant single-enterprise (non-greenfields) agreement
("Agreement") had been "genuinely
agreed to" within the meaning of s 186(2)(a) of the FW Act by
taking into account an irrelevant consideration, namely whether or
not employees were "covered" by the Agreement at the time
it was made in accordance with s 172(2)(a) of the FW Act –
whether the FWC misconstrued s 186(2)(a) in determining that the
relevant employees were not "covered" by the Agreement.
Dismissed.
Fair Work Ombudsman v A to Z Catering Solution Pty Limited
& Anor (No.2) [2018] FCCA 2299
INDUSTRIAL LAW – PRACTICE & PROCEDURE
– Applicant claims that corporate employer contravened
various provisions of the Fair Work Act 2009 (Cth) and the
Fair Work Regulations 2009 (Cth) and that director of corporate
employer was involved in contraventions – corporate employer
admits most contraventions alleged in the statement of claim but
relying on the privilege against incriminating himself to a penalty
director elects not to plead to statement of claim – whether
admissions of contraventions made by corporate employer in its
defence to the statement of claim relieves applicant from having to
prove elements of contravention against director in addition to
proving involvement of director in those contraventions –
applicant not relieved of proving contraventions against
director.
INDUSTRIAL LAW – Whether applicant has proved contraventions
of the Fair Work Act 2009 (Cth) and the Fair Work
Regulations 2009 (Cth) alleged in statement of claim –
whether applicant has proved director involved in contraventions
– whether proof of involvement in contraventions of award
requires knowledge of existence of award as opposed to knowledge of
facts that give rise to liability under the award –
principles concerning involvement in another person's
contraventions discussed.
INDUSTRIAL LAW – EVIDENCE – Whether judicial notice may
be taken of the contents of an award or of other industrial
instruments.
Fair Work Ombudsman v OzKorea Pty Ltd &
Ors [2018] FCCA 2350
INDUSTRIAL LAW – Contraventions of the Fair
Work Act 2009 – Contraventions of the Fair Work
Regulations 2009 – failure to pay minimum entitlements under
the Cleaning Services Award 2010 – failure to pay minimum
wage under Award – failure to keep records.
ACCESSORIAL LIABILITY – Whether head contractor knowingly
concerned with contraventions – knowledge of essential
elements of facts going to contravention – knowledge of Award
– no knowledge of exact wages paid necessary – actual
knowledge imputed – accessorial liability established.
Fair Work Ombudsman v The Meatball And Wine Bar Pty
Ltd [2018] FCCA 2288
INDUSTRIAL LAW – Failure to pay minimum standards
– deliberateness of conduct – factors going to penalty
– effect of publicity – adverse publicity –
discount on penalty. The Respondent pay penalties pursuant to
s.546(1) of the Act for its contraventions set out in [1] above,
fixed in the sum of $31,320.
EZY Accounting 123 Pty Ltd v Fair Work
Ombudsman [2018] FCAFC
134
INDUSTRIAL LAW – Accessorial liability –
whether the Appellant was involved in contraventions –
whether the Appellant was knowingly concerned in contraventions
– consideration of the extent of knowledge required –
where the primary Judge made findings of actual knowledge.
PRACTICE AND PROCEDURE – Appeals – where primary Judge
made findings of actual knowledge – where primary Judge made
adverse findings as to credit – whether appellable error in
findings made by primary judge.
Declaration 1(f) as made by the Federal Circuit Court of Australia
on 28 April 2017 is set aside.
Ghimire v Karriview Management Pty Ltd and Sharma v
Karriview Management Pty Ltd [2018] FCCA
2157
INDUSTRIAL LAW – Claim for unpaid entitlements and
other benefits and expenses – whether a small claim –
where claims exceed statutory monetary limits – where
pecuniary penalty orders sought – whether action estopped by
reason of earlier order of Industrial Magistrates Court of Western
Australia – where statutory prohibition on employment of
non-citizens – whether applicants had legal capacity to enter
into employment contracts – whether work can be performed by
a non-citizen – whether employment contract legally
valid.
PRACTICE AND PROCEDURE – Whether to grant leave for a
corporation not to be represented by a lawyer – consideration
of factors – complexity – inter-linked cause of action
estoppel, Anshun estoppel and issue estoppel – whether
accrued or associated jurisdiction – whether applicants had
legal capacity to enter into employment contracts – whether
work can be performed by a non-citizen – whether employment
contract legally valid – whether possible offences by reason
of work performed if applicants had no right to work –
evidentiary issues which might arise in relation to criminal and
civil penalty liability.
CONRACTS – Employment contracts – whether statutory
prohibition on employment – whether employment contracts with
non-citizens valid.
Australian Building and Construction Commissioner v
Construction, Forestry, Maritime, Mining and Energy Union (The
Brooker Highway Case) (No 2) [2018] FCA
1214
INDUSTRIAL LAW – Where the Federal Court had found
contraventions of s 500 of the Fair Work Act 2009 (Cth) by
an official of the Construction, Forestry, Maritime, Mining and
Energy Union – where the union was liable on the basis of s
550 of the Fair Work Act 2009 (Cth) – consideration
of appropriate penalties – consideration of whether a
nonindemnification personal payment order should be made.
Contravened s 500 of the Fair Work Act 2009 (Cth)
("the FW Act") on 12 October 2016 at a
road building project on the Brooker Highway. A penalty of $50,000
should be imposed for this contravention of the FW Act.
Australian Building and Construction Commissioner v
Construction, Forestry, Maritime, Mining and Energy Union (The
Bendigo Theatre Case) (No 2) [2018] FCA
1211
INDUSTRIAL LAW – Where the Federal Court had found
contraventions of ss 497 and 500 of the Fair Work Act 2009
(Cth) by two officials of the Construction, Forestry, Mining and
Energy Union – where the union was liable on the basis of ss
550 and 793 of the Fair Work Act 2009 (Cth) –
consideration of appropriate penalties – consideration of
whether a non-indemnification personal payment order should be
made.
Construction, Forestry, Maritime, Mining and Energy Union v
Australian Building and Construction Commissioner (The Broadway on
Ann Case) [2018] FCAFC 126
INDUSTRIAL LAW – Appeal from a judgement of the
Federal Circuit Court – where the primary judge had imposed
civil penalties on the Construction, Forestry, Maritime, Mining and
Energy Union in the maximum amounts available for six
contraventions of s 500 of the Fair Work Act 2009 (Cth)
– whether the primary judge erred by failing to treat the
appellant's contraventions as arising out of a course of
conduct – whether the primary judge erred by finding that the
union official was the public face of the appellant – whether
the primary judge erred by treating each of the six contraventions
as being in the worst possible category – whether the primary
judge erred by imposing a penalty that was, in all the
circumstances, manifestly excessive.
Order 2 in sub-section 3, the total penalty was changed from
$360,000 to $306,000.
The orders of the Federal Circuit Court made on 19 October 2017 be
set aside.
Construction, Forestry, Maritime, Mining and Energy Union v
Australian Building and Construction Commissioner (The
Non-Indemnification Personal Payment Case) (No 2)
[2018] FCAFC 117
INDUSTRIAL LAW – Contraventions of s 348 of Fair
Work Act 2009 – making of orders as to penalty –
personal payment order – form of personal payment order.
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.
