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Employment Law and Workplace Relations Monthly Update – November 2021

14 December 2021

#Workplace Relations & Safety

Employment Law and Workplace Relations Monthly Update – November 2021

In the media

Trolley collecting operator penalised
The Fair Work Ombudsman has secured a $7,560 penalty in court against the operator of a trolley collecting business in regional NSW for failing to comply with a Fair Work Commission order to pay compensation to an employee who was found to be unfairly dismissed (29 November 2021).  More...

ABCC publishes code non-compliance by NSW company RMA Construction Group Pty Ltd
The ABCC Commissioner has published details of NSW based company RMA Construction Group Pty Ltd’s non-compliance with the Code for the Tendering and Performance of Building Work 2016 (Cth) after it failed to pay a subcontractor on time and breached security of payment laws (29 November 2021).  More...

ABCC commences action against CFMMEU and officials for alleged illegal picket of WA construction yard
The ABCC has taken court action against the CFMMEU and two of its officials after they allegedly took part in an unlawful picket at a Balcatta company’s construction yard on 3 May 2021 (26 November 2021).  More...

CFMMEU held to account over officials’ improper conduct on Perth’s Doubletree Hilton site
The Federal Court has penalised the CFMMEU $23,000 following the union admitting to a breach of the Fair Work Act through the actions of two of its officials during construction of Perth’s Doubletree Hilton Hotel (25 November 2021).  More...

CFMMEU officials accused of disrupting major freeway project – striking health and safety manager
The ABCC is taking courttion against the CFMMEU and three officials after they allegedly directed workers to stop work, prevented concrete pours, abused health and safety officers and struck a health and safety manager at the Mordialloc Freeway project site in 2020 (17 November 2021).  More...

Construction worker who faced “wrath of the giant CFMEU” awarded $67,000 following attempted coercion to re-join union
Heiko Constructions Pty Ltd, a Queensland construction company, has been ordered to pay a former worker $60,000 in penalties and $7,000 in compensation after attempting to coerce its then worker to re-join the CFMMEU (09 November 2021).  More...

Unvaxxed politicians, staff may be banned from Queensland Parliament
Queensland is enforcing vaccine mandates for police, health workers and truckies. Now authorities are considering whether the same rules should apply to MPs (17 November 2021).  More...

Westpac signs Enforceable Undertaking
Westpac Banking Corporation has entered into an Enforceable Undertaking with the Fair Work Ombudsman in relation to the underpayment of long service leave entitlements to employees across Australia as a result of payroll system errors, which resulted in the bank failing to correctly take into account employees’ overtime work, average weekly hours, bonuses, commissions and sick leave when determining how much long service leave to accrue to employees (16 November 2021).  More...

Emirates Leisure Retail signs Enforceable Undertaking
Emirates Leisure Retail (Australia) Pty Ltd has signed an Enforceable Undertaking with the Fair Work Ombudsman in relation to the underpayments arising from misclassification of employees under the applicable enterprise agreement, a failure to pay overtime rates for hours of work beyond 38 hours per week and a failure to comply with rostering requirements related to night-time and weekend work (18 November 2021).  More...

Labour hire authority hands down its annual report
The Victorian Labour Hire Authority has cracked down on dodgy operators with strict reviews of licence applications and a significant take up in its Labour Hire Licensing Scheme, according to the Authority’s annual report (11 November 2021).  More...

Published reports, articles and speeches

Department of Jobs and Small Business: Monthly Leading Indicator of Employment 2021
The Monthly Leading Indicator of Employment (the Indicator) has fallen for the fifth consecutive month in November 2021. This latest result is attributed to falls in all five of the Indicator’s components – particularly the NAB Forward Orders Index. Read more here.

Industry Update – November 2021 edition
The November issue of Industry Update puts a spotlight on sexual harassment in the construction industry by sharing key statistics, case studies, and findings of the Respect@Work report. Learn about the Fair Work Commission's new powers, including what they mean for building industry participants and how to access them if you experience sexual harassment. Read the Industry Update – November 2021 edition.

In practice and courts

FWC: End of year timeframes for approval of enterprise agreement applications
The Fair Work Commission does not close over the festive period, and we will continue to process and approve enterprise agreements as quickly as possible. If you want your agreement to be approved quickly and easily, we recommend you check our Making compliant agreement applications guide. Read more here.

FWO: Electrical Award changes for casual employees
23 November 2021 – the Fair Work Commission has clarified how certain casual penalty and overtime rates should be calculated under the Electrical Award. This applies from the first full pay period starting on or after 23 November 2021. Read more here.

FWO: New sexual harassment protections take effect
From 11 November 2021, eligible workers can apply to the Fair Work Commission for an order to stop sexual harassment at work. The Commission’s stop bullying jurisdiction under the Fair Work Act 2009 has been expanded by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021. Read more here.

FWO: Penalty rate changes for casual employees – Hair and Beauty Award
10 November 2021 – penalty rates for casual hair and beauty employees working on weekends will increase starting in January 2022. These changes will be added to the award on 3 November 2021 and the increased rates will be phased in over two years. Read more here.

FWO: Annual Wage Review 2021
From 1 November 2021, pay rates in 21 awards increased. Updated minimum rates are now available in our pay tools. Our pay calculator and pay guides now have updated rates. For a list of awards that increased, click here. See annual wage review 2021.

Cases

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Double Tree Hilton Case) [2021] FCA 1468
INDUSTRIAL LAW – admitted contravention of section 500 of the Fair Work Act 2009 (Cth) – imposition of an appropriate penalty under section 546(1) of the Fair Work Act on the union for the improper conduct of its officials – where instant contravention is relatively minor – whether general history of prior contraventions warrants imposition of the highest possible penalty to ensure effective deterrence – role of proportionality in assessment of civil penalties – relevance of prior contraventions in assessing the serious of the instant contravention – Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; (2020) 282 FCR 580 applied.
The CFMMEU pay a pecuniary penalty of $23,000 in respect of the declared contravention.

Fair Work Ombudsman v CNL Group Pty Ltd [2021] FedCFamC2G 215
INDUSTRIAL LAW – FAIR WORK – underpayment of two employees – penalty hearing – where respondent’s admit to the charges against them – where the respondent’s maintained false and misleading records – interference with the investigative powers of the Fair Work Ombudsman – where the respondents have been cautioned by the Fair Work Ombudsman previously – first time offender – calculation of penalty – intuitive synthesis. In all the circumstances, the respective total penalties seem excessive and I will apply a further discount of 20 per cent to each of them, leaving CNL with a total penalty of $66,528.00 and Ms Li to a penalty of $11,692.80.

Fair Work Ombudsman v Yang [2021] FedCFamC2G 247
INDUSTRIAL LAW – FAIR WORK – underpayment of two employees – compliance notice – penalty hearing – where respondent’s admit to the charges against them – calculation of penalty – first time offender – intuitive synthesis.

Hurley v Security & Technology Services (NT) Pty Ltd [2021] FedCFamC2G 181
INDUSTRIAL LAW – FAIR WORK – whether the applicant wrongfully dismissed – whether the first respondent contravened section 44 of the Fair Work Act 2009 (Cth) – no serious misconduct summary dismissal not justified – contravention of section 44 of the Fair Work Act 2009 (Cth) in failing to give notice required under section 117 of the Fair Work Act 2009 (Cth) – failure to make out serious misconduct within section 123 Fair Work Act 2009 (Cth) – compensation awarded under section 545 of the Fair Work Act 2009 (Cth) – interest under section 547 of the Fair Work Act 2009 (Cth).
The first respondent, pursuant to section 545(2)(b) of the Fair Work Act 2009 (Cth), pay compensation to the applicant for the loss suffered because of the contravention in the sum of $308,401.83 together with interest under section 547 of the Fair Work Act 2009 (Cth) from 12 March 2020 to date in the sum of $21,598.04, making a total sum of $329,999.87.
2. If Order 1 had not been made, the Court would have awarded damages in favour of the applicant for breach of contract by the first respondent in the sum of $308,401.83 and interest under section 211 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) from 12 March 2020 to date in the sum of $21,598.04.

Bis Industries Limited v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1374
INDUSTRIAL LAW – applicant sought declarations that the Black Coal Industry Mining Award 2010 (the Black Coal Award) did not cover its Field Services Representatives (FSRs) – only the CFMMEU and three FSRs (the Specific Employees) named as respondents – application considered in relation to the Specific Employees – whether the Specific Employees within the definition of “coal mining employees” in the Black Coal Award – consideration of clause 4.8 of the Black Coal Award – whether the Manufacturing and Associated Industries and Occupations Award 2010 contains the “most appropriate” classification for the Specific Employees’ work – applicant succeeds in part.

Tyson v Heiko Constructions trading as Heiko Constructions Pty Ltd [2021] FedCFamC2G 212
INDUSTRIAL LAW – assessment of compensation for contravention of section 348 Fair Work Act 2009 (Cth) – pecuniary penalty – worst case – penalty to be paid to the applicant.
Fair Work Act 2009 (Cth), sections 3, 336, 340, 343, 348, 539, 545, 546.
Pursuant to section 546(1) of the Fair Work Act 2009 (Cth), the respondent pay a pecuniary penalty of $60,000.00.

Legislation

Commonwealth

Bills

Fair Work Amendment (Same Job, Same Pay) Bill 2021
HR 22/11/2021 – this Bill proposes to amend the Fair Work Act to ensure that workers employed through labour hire companies will receive no less than the same pay as workers employed directly – same job same pay. 

Act Compilation

Maternity Leave (Commonwealth Employees) Act 1973
10/11/2021 – Act No. 72 of 1973 as amended.

Regulations

Fair Work Act 2009 Direction to Inspectors (November 2021)
22/11/2021 – this instrument applies to persons appointed as a Fair Work Inspector under subsection 700(1) of the Fair Work Act 2009, in relation to the performance of functions or the exercise of powers as an inspector. 

Fair Work Commission Amendment (Stop Sexual Harassment) Rules 2021
10/11/2021 – this instrument amends the Fair Work Commission Rules 2013 to extend the Fair Work Commission’s stop bullying jurisdiction so that the Fair Work Commission can also make orders to stop sexual harassment in the workplace.

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.

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