Artboard 1Icon/UI/CalendarIcons/Ionic/Social/social-pinterest

Employment Law and Workplace Relations Monthly Update – August 2021

20 September 2021

#Workplace Relations & Safety

Employment Law and Workplace Relations Monthly Update – August 2021

In the media

Indemnity scheme green lights workplace jabs
The Federal Government has delivered on an indemnity scheme to protect employers who may face costly claims when they facilitate jabs in the workplace. The commitment reduces the risks and uncertainties businesses faced for implementing voluntary vaccination drives (28 August 2021).  More...

Fair Work Ombudsman upgrades jab guides
The Fair Work Ombudsman has updated its guidance on workplace vaccination against COVID-19, urging employers across Australia to assist their staff to take advantage of vaccinations wherever possible (16 August 2021).  More...

Geelong utility business faces court
The Fair Work Ombudsman has commenced legal action in the Federal Circuit Court against the operator of a business in Geelong, Victoria, that specialises in locating underground cables (27 August 2021).  More... 

Brisbane café company and director penalised
The Fair Work Ombudsman has secured court penalties of $170,000 against the operator of a Brisbane café and its director for underpayment of staff and partially paying them in food and drink (16 August 2021).  More... 

ABCC adds Walter Molina to the no permit list
The Fair Work Commission has refused to renew CFMMEU organiser, Walter Molina’s federal entry permit. Mr Molina is a former WA division president of the CFMMEU (13 August 2021).  More...

Record penalties imposed on CFMMEU and officials for Adelaide Airport construction breaches
The Federal Court has penalised the CFMMEU and six officials $428,250 for making misrepresentations about the requirement to show their entry permits, refusing to follow directions, and acting in an improper manner during the $165 million redevelopment of Terminal 1 at Adelaide Airport in 2019 (13 August 2021).  More...

Brisbane labour hire company ADADN Pty Ltd penalised for failing to produce documents
The Federal Circuit Court has penalised Brisbane labour hire company ADADN Pty Ltd $33,300 for failing to provide documents during separate ABCC investigations into alleged underpayment of wages and unlawful industrial action (06 August 2021).  More...

Hardy Bros non-compliance publication
Hardy Bros Mining & Civil Construction Pty Ltd, which is now in liquidation failed to pay its subcontractor, Coopers Earthmoving & Haulage Pty Ltd $337,070.29 on time or at all on a Commonwealth-funded project, the Ellerton Drive Extension project in Queanbeyan, NSW (06 August 2021).  More...

ABCC secures $88k in underpayments for visa holder
The Federal Circuit Court has awarded a New South Wales worker $88,949 in underpayments following ABCC legal action against his employer – Open Tiling Services Pty Ltd and its director Jae Jung Kim (05 August 2021).  More...

Parliamentary work review calls for change
A review into alleged serious incidents committed in the parliamentary workplace has been released. In a statement, the PM&C said the Review of the parliamentary workplace: Responding to serious incidents was requested by Prime Minister, Scott Morrison and the Government had accepted the recommendations in full. The review can be accessed here (29 July 2021).  More...

Published reports articles, speeches

Business leaders tackling modern slavery
Alarmingly, slavery today generates a tremendous profit, as company supply chains across the globe continue to enable myriad forms of modern slavery that can range from controlling and exploiting workers in various ways to poor wages; behaviours that deny individuals of their right to personal or financial gain. Click here to read more.

Department of Jobs and Small Business: Monthly Leading Indicator of Employment 2021
The Monthly Leading Indicator of Employment was flat in August 2021, after thirteen prior consecutive monthly increases. Read more here.

ABCC Industry Update – 10 August 2021 edition
In this edition of Industry Update we publish the non-compliance of Hardy Bros, review the Queensland BPPs, litigation news and more. Read the August 2021 edition here.

In practice and courts

FWO guidance COVID-19 vaccinations: Workplace rights and obligations
Updated 30 August 2021 the office of the Fair Work Ombudsman encouraged employers and employees to work together to find vaccination solutions that suited their individual needs and workplaces. Click here to read more. 

FWO: Temporary workplace flexibility in Restaurant Award
From 11 August 2021, there are new temporary flexibility provisions in the Restaurant Award. Click here for more information.

FWO: Annual Wage Review 2021
Updated 17 August 2021 – our pay calculator and pay guides now have updated rates for all the awards that increase from 1 July 2021. See the when does the increase start?

FWC: Modern award extensively varied
The FWC is extensively varying existing awards as a result of the four yearly review of modern awards. In a decision published on 27 April 2020 ([2020] FWCFB 2124), the awards in tranche three were divided into smaller groups. The technical and drafting matters for the Nurses Award 2010 have been completed and will commence operation on 9 September 2021. To access the new version of the award, go to the Modern awards list.

Cases

WorkPac Pty Ltd v Rossato [2021] HCA 23
INDUSTRIAL LAW (Cth) – contract of employment – nature of casual employment – where first respondent employed by appellant labour-hire company under series of six employment contracts or "assignments" – where first respondent treated as casual employee – where first respondent not paid entitlements owed by employers to non‑casual employees – where first respondent claimed to have been other than a casual employee – where first respondent's work pattern followed established shift structure fixed long in advance by roster – where employment contract provided that employment was on "assignment-by-assignment basis" – where employment contract provided that appellant under no obligation to offer first respondent further assignments – whether there existed firm advance commitment as to duration of first respondent's employment or days (or hours) first respondent will work – whether first respondent employed as casual employee.

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case) [2021] FCA 951
INDUSTRIAL LAW – admitted contraventions of sections 345, 497, 500 and 503 of the Fair Work Act 2009 (Cth) – determination of penalties – relevant considerations in determining appropriate penalties – consideration of relevance of a reckless state of mind – consideration of relevance of pursuit of a legitimate purpose – whether contraventions occurred in a single course of conduct.
Crimes Act 1914 (Cth) section 4AA; Fair Work Act 2009 (Cth) sections 12, 341, 345, 363, 480, 483A, 483D, 487, 490, 492,494, 495, 497, 499, 500, 501, 502, 503, 512, 513, 518, 546, 550, 556, 793.
Fair Work (Registered Organisations) Act 2009 (Cth) section 27.

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Kiama Aged Care Centre Case) [2021] FCA 920
INDUSTRIAL LAW – where union officials who held entry permits entered a building site to inquire into suspected contraventions of work health and safety laws, whether officials contravened section 497 of the Fair Work Act 2009 (Cth) (FW Act) by failing to produce their entry permits for inspection when requested to do so – where concrete pour scheduled for completion, whether actions of union officials interfered with the concrete pour and the union officials intentionally hindered or obstructed certain persons or otherwise acted in an improper manner contrary to section 500 of the FW Act – whether the conduct of one union official also contravened section 503 of the FW Act – where the union officials raised concerns about the safety of the concrete pour, and allegedly insisted it stop and stood on the internal roadway thereby preventing concrete trucks from entering, whether they organised or engaged in an unlawful picket under section 47 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act) – whether raising concerns about safety matters constitutes advancing claims against the principal contractor in respect of its employment of employees or engagement of contractors within the meaning of section 47(2)(b)(i) of the BCIIP Act – whether union liable for the conduct of its officials.
Acts Interpretation Act 1901 (Cth) sections 2C, 15AA.
Fair Work Act 2009 (Cth) sections 12, 478, 494, 497, 500, 503, 512, 539, 550, 793.
Fair Work (Registered Organisations) Act 2009 (Cth) sections 26, 27.
Fair Work Regulations 2009 (Cth) reg 3.25.

Fair Work Ombudsman v Shri Krishna Guru Pty Ltd [2021] FCCA 1808
INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – court to consider appropriate pecuniary penalties to impose on respondents – respondents admitted to liability for range of contraventions of Fair Work Act 2009 (Cth) and Fast Food Industry Award 2010 (Cth) – non-compliance of minimum conditions of awards – contravention of minimum entitlements of employees – failure to give and keep proper employment records – whether contraventions should be treated as a single contravention.
Effect of COVID-19 pandemic assessed when court considers size and financial resources of the business – consideration of effect of lockdown on individual business – whether an employer is entitled to any discount on penalty as a result of being affected by COVID-19 lockdown – whether evidence shows that any lockdowns have had an impact on size and resources such that a discount is warranted – evidence to be placed before the court when employer seeking to make submission as to penalty discount – evidence of pre-and post-pandemic profit – evidence of impact on profitability of business – evidence of any reduction in size of business – evidence of receipt of government assistance.
Respondents receive significant reduction in penalties having regard to size and financial resources of the business – application of totality principle requires 50% reduction on total penalties payable – liability admitted – affected employees compensated – penalties be made payable to the Commonwealth of Australia.
Fair Work Act 2009 (Cth), sections 44(1), 45, 99, 116, 535(1), 536(1), 536(2), 546(1), 557(1).
Fast Food Industry Award 2010 (Cth), clause 12.2, 13.2, 13.4, 17, 18, 25.5(a)(ii), 25.5(b)(ii), 25.5(c), 26.1(a), 26.1(b), 28.3, 30.3, 30.4.

TechnologyOne Limited v Roohizadegan [2021] FCAFC 137
INDUSTRIAL LAW – adverse action – where primary judge found that respondent was dismissed in contravention of section 340(1) of the Fair Work Act 2009 (Cth) – appeal against order to that effect on the grounds that the judge failed to provide adequate reasons for his conclusion and did not answer the question whether the appellants had established that the adverse action was not taken for a reason proscribed by the Fair Work Act 2009 (Cth), or for reasons which included such a reason, by reference to all the evidence – appeal allowed – cross-appeal and notice of contention dismissed, new trial of adverse action claim ordered.
CONTRACT – where primary judge found that respondent was entitled to be paid an incentive payment pursuant to the respondent’s contract of employment – whether on its proper construction respondent so entitled – appeal allowed, cross-appeal dismissed – new trial of claim for breach of contract of employment and other claims for damages ordered.
Fair Work Act 2009 (Cth) Pt 3-1, sections 340(1), 340(1)(a)(ii), 340(1)(c), 341, 341(1)(c)(ii), 342(1), 360, 361, 361(1).

NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883
INDUSTRIAL LAW – enterprise agreement – continued operation after nominal expiry date – whether clause with operation “during the life of the agreement” refers to the nominal expiry date – or whether that clause continues to operate after nominal expiry.
INDUSTRIAL LAW – power of employer to give instructions – the making of extra claims.
PRACTICE AND PROCEDURE – attempt to re-litigate dispute resolved by Fair Work Commission – whether abuse of process.
PRACTICE AND PROCEDURE – declaratory relief – resolution of hypothetical questions – declaratory relief hypothetical both by reason of uncertainty as to regulatory framework and factual uncertainty – whether utility – form of declarations sought – relief refused.
Constitution sections 51, 109, 122; Conciliation and Arbitration Act 1904 (Cth) section 4; Fair Work Act 2009 (Cth) Pt 2-4, sections 19, 26, 27, 29, 52, 54, 223, 224, 225, 226, 227, 253.

Wellington v Offermans Partners (No 2) [2021] FCCA 1846
INDUSTRIAL LAW – Commonwealth – compliance and enforcement – civil remedies – pecuniary penalty orders – amount of penalty – contravention of section 323(1) of the Fair Work Act 2009 (Cth).
INDUSTRIAL LAW – Commonwealth – compliance and enforcement – civil remedies – Fair Work Act 2009 (Cth) – costs.
Bankruptcy Act 1966 (Cth); Fair Work Act 2009 (Cth), sections 323, 323(1), 325, 570, 570(2)(b).
Pursuant to section 546(1) of the Fair Work Act 2009 (Cth) the respondent pay a pecuniary penalty of $8,500.00 to the applicant within 28 days of this order.

Fair Work Ombudsman v 63 Racecourse Rd Pty Ltd [2021] FCCA 1875
INDUSTRIAL LAW – Commonwealth – compliance and enforcement – civil remedies – pecuniary penalty orders – assessing penalty – admitted contraventions – agreed penalty.
INDUSTRIAL LAW – Commonwealth – compliance and enforcement – civil remedies – pecuniary penalty orders – amount of penalty – particular cases.
Crimes Act 1914 (Cth), section 4AA; Fair Work Act 2009 (Cth), sections 45, 144, 144(2), 323(1), 323(1)(b), 323(2), 539(2), 546, 546(2), 550(1)557(1); Fair Work Regulations 2009 (Cth), reg 4.01(A).
Restaurant Industry Award 2010, clause 7.1.

Fair Work Ombudsman v Chevron Island Tavern Pty Ltd [2021] FCCA 1964
INDUSTRIAL LAW – Commonwealth – compliance and enforcement – civil remedies – contravention – pecuniary penalty orders – amount of penalty.
Crimes Act 1914 (Cth), section 4AA; Fair Work Act 2009 (Cth), sections 539(2), 546(2), 716, 716(2), 716(4A), 716(4B), 716(5); Fair Work Regulations 2009 (Cth), reg.4.01(A); Hospitality Award 2010.
Paying the outstanding amount of $13,417.37 it was required to pay to the employees specified in the notice and producing evidence of payment to each of the employees to the applicant.

Goulding v Simonds Homes Victoria Pty Ltd (No 3) [2021] FCCA 1790
INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – costs – respondent seeks costs on an indemnity basis, to be taxed in default of agreement – in the alternative the respondent seeks costs on a party/party basis or to be fixed by the court – multiple Calderbank offers made to the applicant – Calderbank offers refused – repudiation of Calderbank offers was unreasonable – costs awarded on party/party basis.
Fair Work Act 2009 (Cth) section 570.

Australian Building and Construction Commissioner v ADADN Pty Ltd [2021] FCCA 1820
INDUSTRIAL LAW – failure by respondent to comply with notices to produce records – failure by respondent to co-operate with respondent in any respect – level of penalty to act as a general deterrence in respect of non-compliance with statutory notices – orders accordingly.
Building and Construction Industry (Improving Productivity) Act 2016 (Cth), sections 77(3), 81(1)(a), 81(5).
Labour Hire Licensing Act 2017 (Qld), section 40(1). Fair Work Act 2009 (Cth), sections 387, 392, 405.
Federal Circuit Court Rules 2001 (Cth), r 21.11.

Legislation

Commonwealth

Bills

Paid Parental Leave Amendment (COVID-19 Work Test) Bill 2021
25/08/2021 – this Bill will enable people to access parental leave pay and dad and partner pay who do not meet the current work test provisions because their employment has been affected by the COVID-19 pandemic, but who have been paid Commonwealth payments in recognition of this effect.

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.

Share this