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Employment Law and Workplace Relations Monthly Update – September 2021

07 October 2021

#Workplace Relations & Safety

Employment Law and Workplace Relations Monthly Update – September 2021

In the media

NSW contract cleaning business in court
The Fair Work Ombudsman has commenced legal action against a contract cleaning business located in the Hunter region of New South Wales and its director (30 September 2021).  More... 

Window and door construction business in court
The Fair Work Ombudsman has commenced legal action in court against the operators of a Melbourne-based company that makes aluminium windows and doors (28 September 2021).  More...

FWC ruling on mandatory vaccines
A recent appeal to the full bench decision of the Fair Work Commission has confirmed the fairness of a dismissal of an employee for failing to comply with a vaccination requirement. Ms Kimber appealed her termination by Sapphire Coast Community Aged Care for refusing to comply with a requirement to be vaccinated against influenza. At first instance, the FWC backed the company's decision to dismiss Ms Kimber. This decision has now been upheld by a majority of the full bench that dismissed the former Sapphire worker's application to appeal. Despite the ruling, one judge – FWC deputy president Lyndall Dean – had a dissenting opinion over the matter and described Kimber's situation as injustice (28 September 2021).  More...

New support for Parliamentary workplaces
A support service for staff and Parliamentarians who work in Commonwealth Parliamentary workplaces has been established, along with new independent workplace complaints mechanisms. Further information on the PWSS can be accessed here (27 September 2021).  More...

WA labour hire company and contractor penalised $29,000 for age discrimination
The Federal Court has penalised West Australian labour hire company, CoreStaff WA Pty Ltd, $20,000 and a WA based contractor, Gumala Enterprises Pty Ltd, $9,000. CoreStaff and Gumala Enterprises were found to have discriminated against a worker when they refused to hire a qualified 70 year old grader because of his age (24 September 2021).  More...

ABCC statement regarding recent events in Victoria
The ABCC is pursuing lines of enquiry and is responding to a number of mandatory notifications required by the Building Code advising of unlawful industrial action on Melbourne building and construction sites in recent days (22 September 2021).  More...

CFMMEU and eight officials penalised $121,000 for unlawfully entering Toowoomba second range crossing project
The Federal Court has penalised the CFMMEU and eight of its officials $121,000 for 36 contraventions of right of entry laws at Queensland’s Toowoomba second range crossing project in 2018 (22 September 2021).  More...

Enterprise bargaining decline confirms reform needed
Without an overhaul of our enterprise bargaining system, Australia risks a slow and painful recovery from the COVID-19 crisis. According to the latest trends in Federal enterprise bargaining report from the Attorney-General’s Department, in June this year less than half the number of private employers were employing under in-term enterprise agreements than in 2010 (20 September 2021).  More...

CFMMEU Queensland state secretary Michael Ravbar loses right to enter building sites
The Queensland state secretary of the CFMMEU, Michael Ravbar, has abandoned his application to renew his right of entry permit. Mr Ravbar is no longer authorised to exercise entry rights in accordance with the Fair Work Act 2009 (06 September 2021).  More...

Court action for alleged cashback arrangement
The Fair Work Ombudsman has commenced legal action against the operator of a Queensland transport business, alleging he implemented an unlawful cashback arrangement involving JobKeeper payments (06 September 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 has fallen in September 2021. Click here for more information.

ABCC Industry Update – 16 September 2021 edition
In this edition of Industry Update we provide advice on COVID-19 vaccinations and the workplace, our 2021–22 corporate plan, the High Court's recent decision about casual employment, litigation news and much more. 

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. Find out what's changing; if your award is affected and the list of affected awards. Click here for more information.

FWO: New sexual harassment protections take effect
On 10 September 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Respect at Work amendments) took effect. The changes aim to make sure that workers are protected and empowered to address sexual harassment at work. Updated 21 September 2021. Read more here.

FWC: Stopping sexual harassment at work
The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 extend 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. Learn more here.

FWO: Loaded rates added to Hospitality Award
On 3 September 2021, the Fair Work Commission made a decision that added loaded rate arrangements to the Hospitality Award. These new provisions apply on or after the first pay period starting on 3 September 2021. Click here for more information.

FWC: Nurses award extensively varied
The technical and drafting matters for the Nurses Award 2010 have been completed. The varied award was published in advance and commenced operation on 9 September 2021. To access the new version of the award, go to the Modern awards list on the Commission's website. Click here for more information.

Cases

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) (No 2) [2021] FCA 1101
INDUSTRIAL LAW – pecuniary penalties – contraventions of sections 499 and 500 of the Fair Work Act 2009 (Cth) – determination of appropriate penalty – civil double jeopardy – analysis of the nature, gravity, character and seriousness of the contraventions – significance of union’s history of contravening conduct – whether that history should inform the court’s assessment of appropriate penalties – significance of corrective action – penalties imposed – appropriateness of declaratory relief.
Evidence Act 1995 (Cth) section 66A; Fair Work Act 2009 (Cth) pt 3-4, ss 494, 499, 500, 502, 510, 546, 550, 556, and 793; Fair Work (Registered Organisations) Act 2009 (Cth).
The first respondent pay pecuniary penalties totalling $47,250.00. The second respondent pay pecuniary penalties totalling $7,290.00.

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (the Toowoomba Bypass Case) [2021] FCA 1128
INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – where union and union officials admitted contraventions of sections 494(1) and 500 – where declaratory relief and imposition of pecuniary penalties sought by Commissioner – determination of appropriate declarations – determination of appropriate penalties – where personal payment orders sought against union officials – personal payment orders not made.
Building and Construction Industry (Improving Productivity) Act 2016 (Cth); Fair Work Act 2009 (Cth) sections 494, 497, 499, 500, 512, 546, 550, 793; Work Health and Safety Act 2011 (Qld) section 81(3).

Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd (No 2) [2021] FCA 1149
INDUSTRIAL LAW – adverse action – where declaration previously made as to contraventions of section 351 of the Fair Work Act 2009 (Cth) – assessment of penalties – where employer in labour hire industry took adverse action against prospective employee because of age – where client advised, encouraged or incited employer to take adverse action but conceded liability and expressed remorse – need for general and specific deterrence – penalties imposed including order for part payment to third party.
Age Discrimination Act 2004 (Cth) section 18; Fair Work Act 2009 (Cth) sections 351, 362, 539, 546.
The first respondent pay a pecuniary penalty in respect of its contravention of section 351(1) of the Fair Work Act 2009 (Cth) the subject of the declaration made 3 July 2020 in the sum of $20,000, payment to be made in equal parts to Peter Selsmark (50%) and to the Commonwealth (50%).

Construction, Forestry, Maritime, Mining and Energy Union v CPB Contractors Pty Ltd [2021] FCA 1107
INDUSTRIAL LAW – consideration of an application by the CFMMEU and organisers of that union for an order restraining the respondent from refusing access to the tunnelling sites or tunnelling workplaces as part of the Cross River rail project in the state of Queensland.
Fair Work Act 2009 (Cth), sections 484, 494, 495‑499, 501, 502, 539, 545, 546; Work Health and Safety Act 2011 (Qld), sections 8, 116, 117, 142.

Fair Work Ombudsman v Plushbear Pty Ltd [2021] FedCFamC2G 60
INDUSTRIAL LAW – penalties – admitted contraventions of Fair Work Act 2009 (Cth) – underpayment of wages to employees – failure to comply with compliance notice – where proceedings brought against respondent company and second respondent – where second respondent is sole director and shareholder of respondent company – where second respondent was a person ‘involved’ within the meaning of section 550 in the contravention of section 716(5) of the Fair Work Act 2009 by respondent company – appropriate penalty to be imposed – applicable principles – penalty determined.

Legislation

Commonwealth

Acts

Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021
17/09/2021 – Act No. 104 of 2021 as made – assent Act No: 104 – year: 2021 – 10 September 2021.
Implements certain recommendations of the Australian Human Rights Commission report, Respect@Work: National inquiry into sexual harassment in Australian workplaces by amending the: Australian Human Rights Commission Act 1986 to amend the definition of 'unlawful discrimination'; and extend the period of time between an alleged incident and the lodging of a complaint in relation to the president's discretion to terminate a complaint; Fair Work Act 2009 to: Provide that a worker who is sexually harassed at work may apply for a Fair Work Commission (FWC) order to stop the sexual harassment; provide that the FWC can make an order to stop sexual harassment following a single instance of sexual harassment; provide that sexual harassment in connection with an employee’s employment can be a valid reason for dismissal; and extend the minimum entitlement for compassionate leave in relation to miscarriage; and Sex Discrimination Act 1984 to: Prohibit discrimination involving harassment on the ground of sex; extend the application of the Act to members of parliament, members of the ACT and Northern Territory legislative assemblies and their staff, judges, staff and consultants employed under the Members of Parliament (Staff) Act 1984, state employees, including independent contractors; and the public authority of a state; and include definitions of 'worker' and 'persons conducting a business or undertaking' to extend the protection from sexual harassment to all paid and unpaid workers, including volunteers, interns and the self-employed. 

Paid Parental Leave Amendment (COVID-19 Work Test) Act 2021
07/09/2021 – Act No. 99 of 2021 as made – 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.

Regulations

Parliamentary Service Amendment (Independent Parliamentary Workplace Complaints Mechanism) Determination 2021
23/09/2021 – this instrument amends the Parliamentary Service Determination 2013 to confer the functions of the independent parliamentary workplace complaints mechanism on the Parliamentary Service Commissioner. 

Paid Parental Leave Amendment (COVID-19 Work Test) Rules 2021
04/09/2021 – this instrument amends the Paid Parental Leave Rules 2021 to allow calculation of the number of hours of qualifying work performed by people who have received a COVID-19 Australian Government payment to count towards the work test for paid parental leave.

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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