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Employment Law and Workplace Relations Monthly Update – October 2021

08 November 2021

#Workplace Relations & Safety

Employment Law and Workplace Relations Monthly Update – October 2021

In the media

CEPU officials alleged to have unlawfully delayed work on ACT landmark development
The ABCC has taken Federal Circuit and Family Court action against the CEPU and two of its officials alleging they obstructed work from occurring at the $500 million Founders Lane development in Braddon, ACT in March 2021 (27 October 2021).  More...

NAB faces criminal charges for failing to pay entitlements
Victoria's new employment watchdog has filed charges against the lender in the Magistrates' Court (26 October 2021).  More...

More than $148 million recovered for workers
The Fair Work Ombudsman recovered $148,374,054 for 69,735 underpaid workers in 2020–21 – a record sum of back-paid wages and entitlements (21 October 2021).  More...

ABCC alleges CFMMEU officials obstructed concrete pour and misled QLD Police
The ABCC has taken court action against the CFMMEU and its officials, Andrew Blakeley and Luke Gibson, after they allegedly prevented a concrete pour at a Redbank construction site because a labour hire provider was not covered by a CFMMEU enterprise agreement (20 October 2021).  More...

Record number of Australians working multiple jobs
Sally McManus, ACTU secretary, said the record-breaking figures for multiple job holders are a "deeply concerning trend". Low salary is one of the factors affecting this trend – as well as unsecure contracts brought about by the pandemic (22 October 2021).  More...

Fair Work Commission changes APS work terms
The Australian Public Service Commission has announced the Fair Work Commission has conducted a review of casual terms used in the Australian Public Service Award, with the result that some changes have been made (14 October 2021).  More...

FWO takes action against Commonwealth Bank
The Fair Work Ombudsman has commenced proceedings in the Federal Court against Commonwealth Bank of Australia and Commonwealth Securities Limited, for alleged contraventions of the Fair Work Act for failing to pay 7,425 workers $16.44 million (11 October 2021).  More...

Consolidated Power Projects Australia Pty Ltd signs enforceable undertaking
Consolidated Power Projects Australia Pty Ltd has agreed to pay $295,000 to subcontractor High Voltage Constructions Pty Ltd after entering into an enforceable undertaking with the Australian Building and Construction Commission (05 October 2021).  More...

More than $300,000 recovered for security staff
The Fair Work Ombudsman has recovered $303,299 for 1,010 underpaid workers after investigating companies engaged to provide security at COVID-19 quarantine hotels in Melbourne and Sydney (01 October 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 fourth consecutive month in October 2021. This latest result is attributed to falls in all five of the Indicator’s components – particularly the NAB Forward Orders Index. Click here for more information.

ABCC Industry Update – 20 October 2021 edition
In the October edition of Industry Update we explain how to show your proof of vaccination for COVID-19, share highlights from our annual report, litigation news and more. Read the October 2021 edition.

In practice and courts

FWO: Review of casual employment terms in most awards
The Fair Work Commission has been reviewing casual employment terms in most awards (15 October 2021). Click here for more information.

FWC: Annual report 2020–21 published
The Fair Work Commission published our annual report for the 2020–21 financial year following its tabling in the Australian Parliament (11 October 2021). Click here for more information.

FWC: Consultation – casual conversion disputes and definitions
The Fair Work Commission is considering making some changes to the Fair Work Commission Rules 2013 in response to the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021. To find out more click here.

FWC reminder: Stopping sexual harassment at work
The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 commenced on 11 September 2021, extending the stop-bullying jurisdiction so that the Fair Work Commission will be able to make orders to stop sexual harassment at work. Applications for such orders can be made to the Commission from 11 November 2021. Click here for more information.

Cases

Ridd v James Cook University [2021] HCA 32
INDUSTRIAL LAW (Cth) – industrial agreement – interpretation of Enterprise Agreement – where Enterprise Agreement and Code of Conduct each applied to all employees of respondent – where intellectual freedom protected by Enterprise Agreement – where Enterprise Agreement imposed confidentiality requirements concerning disciplinary processes – where disciplinary action taken and employment terminated for misconduct and serious misconduct including for breaches of Code of Conduct – whether disciplinary action taken for breaches of Code of Conduct contravened Enterprise Agreement – whether exercise of intellectual freedom subject to constraints in Code of Conduct – whether exercise of intellectual freedom subject to confidentiality obligations in Enterprise Agreement. Fair Work Act 2009 (Cth), section 50.

Australian Building and Construction Commissioner v Roach (The Melbourne Quarter Case) (Ruling No 1) [2021] FCA 1153
EVIDENCE – application for leave to cross-examine a witness under section 38(1) of the Evidence Act 1995 (Cth) – proper construction of “evidence given by a witness that is unfavourable to a party” – whether the court should follow the decision of the Victorian Court of Appeal in DPP v Garrett or an earlier first instance decision of the Federal Court of Australia – whether the construction of section 38(1)(a) in DPP v Garrett was obiter – held that the construction adopted in DPP v Garrett was ratio decidendi and that the court should follow the Victorian Court of Appeal – consideration of whether section 38(1)(a) is engaged – consideration of discretionary matters – leave given.

Menon, in the matter of an election for offices of the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2021] FCA 1263
INDUSTRIAL LAW – inquiry into an election for offices in an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth) – election for offices in the Manufacturing Division of the Construction, Forestry, Maritime, Mining and Energy Union which concluded in July 2021 – where the applicant alleges irregularities – whether the exclusion of certain members from the roll of members eligible to vote in the elections constituted an irregularity – whether the rejection of certain candidates’ nominations for office constituted an irregularity – construction of the Rules of the Union and Rules of the Manufacturing Division of the Union – effect of purported resignations from a District of the Manufacturing Division – effect of purported resignation from the Manufacturing Division – no irregularity found.
HIGH COURT AND FEDERAL COURT – application and effect of a declaration made in another proceeding –whether reasons for judgment are available in the construction of a court’s declaration – in the circumstances of this case reasons for judgment so available.
Fair Work (Registered Organisations) Act 2009 (Cth) sections 6, 9, 27(a), 154A, 154B, 154B(2), 164, 164A, 182, 191, 193, 201, 205(3), 206(1), 206(2), 206(4), 206(5), 206(6), 230, 237, 252–254.

Civil Air Operations Officers' Association of Australia v Airservices Australia [2021] FCA 1313
INDUSTRIAL LAW – alleged contraventions of section 50 of the Fair Work Act 2009 (Cth) – interpretation of enterprise agreement – enterprise agreement prescribed consultation in respect of significant workplace changes and rostering changes – whether significant changes and rostering changes were made without consultation – contravention of consultation clauses established – enterprise agreement provided for the status quo to be preserved during dispute resolution – contravention of the dispute resolution provision not established.
PRACTICE AND PROCEDURE – application for leave to amend pleadings – where there was no prejudice to either party – leave granted – Air Services Act 1995 (Cth) section 16; Fair Work Act 2009 (Cth) sections 14, 50, 186, 205, 557.

Fair Work Ombudsman v PEBS Group Pty Ltd [2021] FedCFamC2G 158
INDUSTRIAL LAW – declaration that the first respondent failed to comply with a compliance notice – declaration that the second respondent was involved in the first respondent’s contravention – amount of penalties to be imposed on each respondent. Fair Work Act 2009 sections 550, 545(1), 546(1), 716(2) and (5).

Fair Work Ombudsman v Viota [2021] FedCFamC2G 119
INDUSTRIAL LAW – failure to comply with compliance notice – declaration and penalties – hair dressing salon
Fair Work Act 2009, sections 539(2), 545(1), 546(1), 546(3)(a), 547(2) and 716(5).
2. Within 28 days, pursuant to section 545(1) of the Act, the respondent pay: (a) to the nominated bank account of Samantha Dove, the amount of $19,669.45, which the respondent was required to pay pursuant to the compliance notice, less the required amount of taxation.

Fair Work Ombudsman v G & G Group Trading Pty Ltd [2021] FedCFamC2G 105
INDUSTRIAL LAW – penalty hearing – where the respondent was ordered to pay compensation by the Fair Work Commission – where the respondent failed to pay the compensation within the time specified – where this constitutes a breach of section 405 of the Fair Work Act 2009 (Cth) – where compensation paid after commencement of these proceedings pursuant to section 546(1) of the FW Act: the first respondent pay a pecuniary penalty of $30,000.00 to the Commonwealth within 28 days of this order.

Legislation

Commonwealth

Act compilation

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
11/10/2021 – Act No. 55 of 2009 as amended.

Regulations

Paid Parental Leave Amendment (Work Test Special Circumstances) Rules 2021
27/10/2021 – this instrument amends the Paid Parental Leave Rules 2021 to specify the following three circumstances: Family and domestic violence, severe medical condition or a declared natural disaster will constitute special circumstances for the purposes of section 36AA of the Paid Parental Leave Act 2010.

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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