In the media
Australian berry and citrus farms most at risk of having
slave-like working conditions, Woolworths modern slavery report
finds
Woolworths has identified 332 Australian fruit and
vegetable suppliers within its supply chain where workers are at
risk of slave-like conditions, as part of its first-ever review
under new modern slavery laws (26 November 2020).
More...
Federal Court dismisses sick-leave appeal by unions
against Qantas
Unions representing Qantas workers lose an appeal in the
Federal Court to have the airline pay its workers for taking sick
or carer's leave while they are stood down, with two of three
justices ruling staff cannot take leave from work that does not
exist (27 November 2020).
More...
Some Victorian casual workers to get sick leave, but
Coalition says scheme is a job-killer
The Victorian Government will spend $5 million on
designing a "secure work pilot scheme" that will provide
up to five days of sick and carer's pay for casual or insecure
workers in priority industries (23 November 2020).
More...
Women's health clinic in court
The Fair Work Ombudsman has commenced legal action in the
Federal Circuit Court against the operator of a women's health
clinic in Melbourne for allegedly withholding Government-funded
parental leave payments from an employee (20 November 2020).
More...
Strong rise in employment and hours worked in
October
Seasonally adjusted employment increased by 178,800 people
(1.4 per cent) between September and October and hours worked by
1.2 per cent according to the ABS. This strong increase means that
employment in October was only 1.7 per cent below March, and
reflects a large flow of people from outside the labour force back
into employment (19 November 2020).
More...
Federal Court imposes $336,000 in penalties over Perth
Airport link unlawful industrial action
The Federal Court in Perth imposed $180,000 in penalties
against the CFMMEU and three of its officials for organising a
half-day strike during construction of the Forrestfield to Perth
Airport rail link in December 2018 (18 November 2020).
More...
Perth franchisee penalised $230,040 for repeat
offending
The Fair Work Ombudsman has secured its first penalties
under the 'serious contraventions' provisions of the
Protecting Vulnerable Workers laws, after a former Han's
Café franchisee in Perth underpaid vulnerable workers
despite having previously faced Court for similar conduct (13
November 2020).
More...
This is a mark against our nation: Australia's
Pacific Islanders say more protections needed for seasonal
workers
Agriculture industry leaders call for an expansion of the
seasonal worker program, but representatives of the Pacific
Islander community want better protections first (10 November
2020).
More...
Wages recovered for Soul Origin workers
The Fair Work Ombudsman (FWO) has
recovered $78,944 in unpaid wages for 230 workers following an
investigation into 39 stores and a manufacturing site for salad,
sandwich and coffee franchise Soul Origin across Australia (27
November 2020).
More...
Idameneo back-pays workers over $15 million
A major national medical centre operator, Idameneo (No
123) Pty Ltd, has back-paid employees $15.3 million and entered
into an Enforceable Undertaking (EU) with the Fair
Work Ombudsman (FWO) (10 November 2020).
More...
Security services provider signs Enforceable
Undertaking
Principal security contractor Securecorp (NSW) Pty Ltd
will back-pay underpaid workers after entering into an Enforceable
Undertaking (EU) with the Fair Work Ombudsman
(FWO) (26 November 2020).
More...
WHSmith signs Enforceable Undertaking
National food and retail company WHSmith Australia Pty Ltd
has back-paid employees more than $2.2 million and entered into an
Enforceable Undertaking (EU) with the Fair Work
Ombudsman (05 November 2020).
More...
National Library signs Enforceable Undertaking
The National Library of Australia has entered into an
Enforceable Undertaking (EU) with the Fair Work
Ombudsman after underpaying employees almost $250,000 in wages and
superannuation (02 November 2020).
More...
Massage parlour operator and accountants penalised
The Fair Work Ombudsman has secured total court penalties
of $19,100 after a Victorian massage parlour operator admitted it
underpaid a Chinese worker $13,522 and provided false records to
inspectors (03 November 2020).
More...
CEPU and three officials penalised $34,600 over stoppage
of works at Sydney Metro Trains Facility Site
The Federal Court has penalised the CEPU and three of its
officials $34,600 for stopping work at the Sydney Metro Trains
Facility Site (SMTF Site) in Rouse Hill in 2016
(09 November 2020).
More...
Published reports articles, speeches
Department of Jobs and Small Business: Monthly Leading
Indicator of Employment November 2020
The Monthly Leading Indicator of Employment (the
Indicator) has risen for the fifth consecutive month in
November 2020 (after thirteen consecutive monthly falls). The
Indicator's rise this month – stemming from increases in
the NAB Forward Orders index, the Westpac-Melbourne Institute
Leading Index of Activity and Consumer Sentiment indices.
More...
How many jobs did JobKeeper keep?
James Bishop, Iris Day: Reserve Bank of Australia: 20
November 2020
In response to the sharp fall in economic activity in the early
months of the COVID-19 outbreak, the Australian government
announced a series of measures to support incomes and employment.
More...
Work and life in a pandemic: An update on hours of work
and unpaid overtime under COVID-19
Dan Nahum; Centre for Future Work: 18 November 2020
This research reveals that almost three-quarters of Australians
'working from home' are doing at least some of it in
non-work-time. The report calls for additional protections for
people working from home, including limits on hours, overtime pay
when relevant, allowances for extra home office expenses. More...
ABCC Industry Update – 11 November 2020
edition
In the November edition of Industry Update, we take a look
into the extension of JobKeeper, the Supporting Apprentices and
Trainees wage subsidy, the increase in the building and
construction minimum wage and much more.
More...
In practice and courts
Harvest Trail Services helps growers find workers for
harvest jobs
From 1 November 2020, eligible job seekers may receive
financial assistance of up to $2,000 for temporary working visa
holders and up to $6,000 for Australians to help with the costs of
travel and accommodation when they relocate to take up short-term
seasonal harvest or agriculture work. HTS providers are contracted
by the Australian Government and there is no cost to employers or
job seekers to use their services.
More...
FWC: Changes to unpaid parental leave entitlements
On 27 November 2020, there were changes to the unpaid
parental leave entitlements in the Fair Work Act. The
changes include: access to up to 12 months of unpaid parental leave
for parents impacted by stillbirth or infant death and access to
flexible unpaid parental leave options.
More...
FWO: Boosting Apprenticeship Commencements wage
subsidy
24 November 2020 – The Australian
Government has announced a
Boosting Apprenticeship Commencements (BAC)
wage subsidy to support employers and Group Training Organisations
(GTOs) employ new apprentices and trainees. The
BAC wage subsidy is administered by the Department of Education,
Skills and Employment.
More...
FWC: Updates to casual and overtime clauses in most
awards
20 November 2020 – On 30 October 2020, the Fair Work
Commission (the Commission) announced updates to
the casual and overtime clauses in 97 awards. The updated clauses
start from the first full pay period on or after 20 November 2020.
Find out if your award is affected and what to do if your award is
affected.
More...
FWC: Entitlements over the Christmas and New Year
break
11 November 2020 – On this page: directing employees
to take leave, employees without enough annual leave, paying
employees who don't work on a public holiday, public holidays
during annual leave, working extra hours and working on public
holidays, public holidays over Christmas and New Year, and
JobKeeper and the holiday period.
More...
FWC: 10 modern awards extensively varied
The modern awards will be varied in three tranches during
2020. The technical and drafting matters for 10 of the awards in
tranche three have been completed. The varied awards have been
issued and will commence operation on 13 November 2020. To find out
which awards have been varied, go to the
modern awards list on the Commission's website. To see the
decision relating to these awards, go
here (07 October 2020).
Fair Work Commission: 1.75% increase to minimum
wages
Updated 1 November 2020 – This will apply to all
award wages. Increases to awards will start on three different
dates for different groups of awards. See
when will my award increase for details about when the new
minimum wages in your award start. Most employees are covered by an
award. If you're not sure which award applies, use
find my award. For anyone not covered by an award or an
agreement, the new National Minimum Wage is $753.80 per week or
$19.84 per hour. This applies from the first full pay period
starting on or after 1 July 2020. You can read the detailed
decision on the Fair Work Commission's website.
APH Senate Inquiry
The committee was originally to report to the Senate by
the last sitting day in June 2020. On 12 February 2020, the Senate
granted the committee an extension to report by 3 December 2020. On
15 June 2020, the Senate granted the committee a further extension
to report by the last sitting day in June 2021.
More...
Cases
Communications, Electrical, Electronic, Energy,
Information, Postal, Plumbing and Allied Services Union of
Australia v Qantas Airways Limited [2020] FCAFC
205
INDUSTRIAL LAW – statutory construction – employees
stood down under s 524(1) of the Fair Work Act 2009 (Cth) and under
enterprise agreement because of stoppage of work for which employer
could not reasonably be held responsible – exigencies of the
COVID-19 pandemic – paid personal/carer's leave or
compassionate leave under ss 96 or 106 of the Act – whether
employee not taken to be stood down under ss 524(3) and 525 if
taking personal/carer's or compassionate leave during period of
stand down – whether taking of personal/carer's or
compassionate leave authorised by employer or otherwise authorises
employee to be absent form work pursuant to s 525 – held:
employees stood down not entitled to personal/carer's leave or
compassionate leave during stand down period – appeal
dismissed.
Teekay Shipping (Australia) Pty Ltd v
Auld [2020] FCAFC 206
INDUSTRIAL LAW – interpretation of industrial agreements
– whether Full Bench of the Fair Work Commission made
jurisdictional error in interpretation of enterprise agreement and
modern award in holding that, read together, they contained a
consultation term within the meaning of s 205 of the Fair Work Act
2009 (Cth) – where enterprise agreement and modern award did
not contain all elements of consultation term required in s 205
– whether model consultation term prescribed pursuant to s
205(2) to be read to supplement or supplant existing but deficient
consultation provisions in enterprise agreement and modern award
– where s 205(2) provided model consultation term prescribed
by reg 2.09 of the Fair Work Regulations deemed to be term of the
enterprise agreement – held: model consultation term applied
to exclusion of insufficient and defective terms dealing with
consultation in the enterprise agreement and modern award.
Australian Manufacturing Workers' Union v Qantas
Airways Limited [2020] FCCA
3184
INDUSTRIAL LAW – small claims – application
for unpaid wages – Qantas Airways Limited (AWU, AMWU, CEPU)
Enterprise Agreement 9 – construction of 'bonus jump'
in clause 4B.2.3 – application dismissed.
Maersk Crewing Australia Pty Ltd v Construction,
Forestry, Maritime, Mining and Energy Union (No 2)
[2020] FCA 1694
INDUSTRIAL LAW – application for declarations that
Fair Work Commission lacked jurisdiction to make arbitral award
– where dispute as to whether additional steward required on
vessels – where FWC determined enterprise agreement required
additional steward – where terms of enterprise agreement
included dispute resolution procedure providing for arbitration by
FWC if matter unresolved after steps complied with – whether
failure to comply with step one of dispute resolution procedure
– whether factual findings by FWC as to compliance with step
one gave rise to issue estoppel – whether dispute resolved by
earlier agreement between parties as to manning levels on vessels
– where earlier agreement did not amend enterprise agreement
– consideration of arbitral jurisdiction of FWC –
application dismissed.
INDUSTRIAL LAW – cross-claim by union alleging failure to
give effect to arbitral award was contravention of Fair Work Act
2009 (Cth) – application allowed.
Australian Building and Construction Commissioner v
Construction, Forestry, Maritime, Mining and Energy
Union [2020] FCA
1662
INDUSTRIAL LAW – application by commissioner for
declarations, pecuniary penalties and personal payment orders
– where respondents admit contraventions –
determination of appropriate quantum of penalties for union, union
officials and workers – consideration of principles of
proportionality in fixing penalty – whether contraventions
serious – whether history of past contraventions by union and
officials justify penalty at or close to statutory maximum –
whether admissions by respondents support discount on penalty
– whether personal payment orders should be made against
officials – consideration of whether power under Building and
Construction Industry (Improving Productivity) Act 2016 (Cth) to
make personal payment orders – declarations and orders for
pecuniary penalties made – orders not made for personal
payment orders.
Retail and Fast Food Workers Union Incorporated v
Tantex Holdings Pty Ltd (No 2) [2020] FCA
1644
EMPLOYMENT AND INDUSTRIAL RELATIONS – where the
McDonald's Australia Enterprise Agreement 2013 (the Agreement)
provides for a 10 minute paid drink break on a 4 hour shift –
where second applicant was not provided with 10 minute paid drink
break – where respondent admitted contravention of s 50 of
the Fair Work Act 2009 (Cth) (the Act) – where Facebook
groups were used to communicate with employees – where
employees had a right to take short drink or toilet breaks outside
this 10 minute break – where that right is a "workplace
right" for the purposes of the Act – where respondent
contravened ss 340, 343 and 345 of the Act by contents of Facebook
posts written by employees – penalties to be imposed –
whether payment of penalties should be ordered to first and second
applicants.
Fair Work Ombudsman v Saveway Store Pty Ltd &
Anor [2020] FCCA
3042
INDUSTRIAL LAW – penalty hearing – failure to
abide by compliance notice under the Fair Work Act 2009 (Cth)
– involvement of second respondent in contraventions –
appropriate penalty.(6) The First Respondent pay penalties of
$24,097.50 pursuant to section 546(1) of the FW Act for committing
the Contraventions.
Fair Work Ombudsman v Tac Pham Pty Ltd &
Anor [2020] FCCA
3036
INDUSTRIAL LAW – penalty hearing – agreed
contraventions – previous Court proceedings imposing
penalties for same contraventions – contrition and
cooperation demonstrated – penalties imposed.
(4) The first respondent pay penalties of $191,646 pursuant to
s.546(1) of the Act for committing the Contraventions and Serious
Contraventions.(5) The second respondent pay penalties of $38,394
pursuant to s.546(1) of the Act for her involvement in the
Contraventions and Serious Contraventions.
Bodycoat v It Blows Air Con Pty Ltd Trading As IBAC
Plumbing [2020] FCCA
3033
INDUSTRIAL LAW – small claims matter – whether
the applicant is entitled to redundancy pay – whether the
applicant is entitled to payment in lieu of notice – judgment
for applicant.
(3) Pursuant to ss.545(2)(b) and 548 of the Fair Work Act 2009
(Cth), the respondent pay the applicant the amount of $20,000 as
payment in lieu of notice of termination and redundancy within 90
days of the date of these orders.
O'Connor v Setka [2020] FCAFC
195
INDUSTRIAL LAW – appeal from judgment dismissing an
application under s 164 of the Fair Work (Registered Organisations)
Act 2009 (Cth) – consideration of the Court's power to
make an order giving directions for the performance or observance
of union rules – internal membership demarcation dispute
between divisions of the union involving proper construction of
union rules – appeal allowed.
UNION RULES – principles of construction – rules
amended from time to time – internal inconsistencies and
redundancies – whether regard may be had to deleted or
redundant rules.
Findley v Mss Security Pty Ltd & Ors
(No.2) [2020] FCCA
3029
INDUSTRIAL LAW – costs – respondents seeks
costs on an indemnity basis or party/party basis –
respondents seeks costs be taxed under part 40 of the Federal
Circuit Court Rules 2001 – Calderbank offer made to the
respondent – Calderbank offer refused – repudiation of
Calderbank offer unreasonable – costs awarded on an indemnity
basis.
Augusta Ventures Limited v Mt Arthur Coal Pty
Limited [2020] FCAFC
194
REPRESENTATIVE PROCEEDINGS – whether the Court has
power to make an order of security for costs sought against funder
in industrial class action – whether the Court should
exercise its discretion to make such an order.
INDUSTRIAL LAW – purpose of s 570 of the Fair Work Act 2009
(Cth) – importance of "no costs" jurisdiction
brought about by s 570 to questions of power and discretion to
award security for costs.
COSTS – consideration of the character of a security for
costs order – consideration of the consequences of
non-compliance with such an order.
Construction, Forestry, Maritime, Mining and Energy
Union v Australian Building and Construction Commissioner (The Bay
Street Appeal) [2020] FCAFC
192
INDUSTRIAL LAW – where head contractor failed to
comply with request of industrial association to provide additional
amenities – whether head contractor engaged in industrial
activity" within the meaning of s 347(b)(iv) of the Fair Work
Act 2009 (Cth) – whether s 347(b)(iv) extends to lawful
requests or directions of an industrial association which are
unrelated to matters concerning freedom of association –
whether industrial activity confined to rights of participation
– whether industrial association engaged in "adverse
action" so as to give rise to s 346(b) – whether
industrial association coerced head contractor to engage in
industrial activity contrary to s 348.
STATUTORY CONSTRUCTION – the need to construe a provision in
its context and to give effect to objects and purposes – the
circumstances in which reference may be made to extrinsic
materials, including an explanatory memorandum.
Kaur v Bangari and Karyal Pty Ltd trading as India Gate
Warrnambool & Anor [2020] FCCA
2961
INDUSTRIAL LAW – judgment in default for
underpayments, demands for money and record keeping contraventions
– penalties – respondents claiming applicant worked
voluntarily as a chef 20 hours per week for seven months –
respondents paying the applicant nothing for her work –
respondents exploiting the applicant as a person seeking a 457
visa.
(1) Pursuant to s.546(1) of the Fair Work Act 2009 ("the
Act"), the first respondent pay penalties for its
contraventions of the Act in the amount of $126,000.
(2) Pursuant to s.546(1) of the Act, the second respondent pay
penalties for his contraventions of the Act in the amount of
$70,560.
Legislation
Commonwealth
Act Compilation
Paid
Parental Leave Act 2010
24/11/2020 – Act No. 104 of 2010 as amended
Fair
Work Amendment (Improving Unpaid Parental Leave for Parents of
Stillborn Babies and Other Measures) Act
2020
26/11/2020 – Act No. 105 of 2020
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.
