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Employment Law and Workplace Relations Monthly Update - April 2019

30 April 2019

#Workplace Relations & Safety

Employment Law and Workplace Relations Monthly Update - April 2019

In the media

ABCC alleges right of entry breach against Tasmanian CFMMEU official
The ABCC has commenced Federal Court action in Tasmania alleging the CFMMEU and its official Richard Hassett breached Federal right of entry laws at the Cattle Hill Wind Farm project site in Lake Echo earlier this year (29 April 2019).  More... 

ABCC alleges labour hire company and contractor discriminated against worker because of age
The ABCC has commenced proceedings in the Federal Court against labour hire company, Corestaff WA, and contractor, Gumala Enterprises, alleging they discriminated against a worker because of his age (26 April 2019).  More... 

Flight Centre accused of 'systematically underpaying workers'
Federal Court action is launched against Australian travel giant Flight Centre by five current and former employees claiming the company failed to pay minimum wages, penalty and overtime rates, correct annual leave loading and did not provide the correct rest and meal breaks (26 April 2019).  More... 

Agri Labour Australia forced to pay more than $50,000 to Vanuatu labourers working in northern Victoria
A labour hire company has been forced to pay more than $50,000 to a group of labourers from Vanuatu who were underpaid while working on a tomato farm in northern Victoria. Fair Work inspectors found the company paid some workers a group piecework rate, based around the number of tomatoes picked by the group (24 April 2019).  More...  

Australian Industry Group calls for industrial relations freeze until new senators take office
One of Australia's leading business lobby groups is urging crossbench senators not to pass any industrial relations changes if Parliament sits before the Senate changes over. The possibility arises because while members of Parliament are sworn in once results are officially declared new senators will only commence their terms on July 1 (22 April 2019).  More... 

Queensland electrical contractor penalised almost $40,000
A Queensland electrical contracting company and its director have been penalised for ignoring a Fair Work Commission order to compensate an employee who was unfairly dismissed, following action by the Fair Work Ombudsman (18 April 2019).  More...  

Marine scientist's sacking by James Cook University 'unlawful', court rules
Dr Peter Ridd was unlawfully sacked by James Cook University in north Queensland for criticising his colleagues' research on the impacts of climate change on the Great Barrier Reef, the Federal Circuit Court of Australia rules (16 April 2019).  More... 

CFMMEU and officials penalised $58,500 following attempts to coerce crane company into enterprise agreement
The Federal Court in Brisbane has imposed $58,500 in penalties against the CFMMEU, its State Secretary Michael Ravbar and fellow union official Andrew Sutherland over their unlawful action on the Legacy Way Port Connect Project in 2012 (15 April 2019).  More... 

Full court increases penalties in nine Brisbane sites appeal
The Full Federal Court has upheld the ABCC’s appeal to increase penalties awarded against the CFMMEU over 16 strikes and work stoppages at nine Brisbane construction sites in August and September 2016 (12 April 2019).  More...  

ABCC alleges CFMMEU official racially abused safety supervisor
The ABCC has commenced legal proceedings in the Federal Court against the CFMMEU and its official John Windus alleging he racially abused a safety supervisor at a Perth construction site in February this year (09 April 2019).  More...  

CFMMEU officials stop workers over one hour pay claim
The ABCC has commenced legal proceedings in the Federal Court against the CFMMEU and two of its organisers, Anthony Sloane and Brendan Holl, after they stopped workers on a Sydney construction site in February 2018 (08 April 2019).  More... 

Full federal court imposes $1.7M in penalties against CFMMEU for “executing illegal industrial activity” at Barangaroo site
The Full Federal Court has today imposed penalties totaling $1.7 million against the CFMMEU and a number of its senior officials, including its former and current State Secretaries Brian Parker and Darren Greenfield, for unlawful conduct at the Barangaroo site (05 April 2019).  More...  

Our 'culture of underpayment' must be eradicated
The Migrant Workers Taskforce Report, which landed last month, recommended criminal sanctions for "clear, deliberate and systemic" cases of exploitation. The government has accepted this recommendation. This is a bold step: Australian workplace law has generally imposed only civil penalties for underpayments and other statutory breaches (05 April 2019).  More... 

Farmers say Fair Work Commission ruling on casual workers will increase cost of fresh fruit and vegetables
The Fair Work Commission hands down its ruling on casual wages for the horticultural sector, and farmers are not happy (05 April 2019).  More... 

Time for a standard work expenses tax deduction says watchdog
A standard deduction for work-related expenses should be re-examined with a view to eradicating the need for millions of Australians to lodge tax returns, the nation's tax watchdog has recommended (04 April 2019).  More... 

Federal Court penalises CFMMEU $78,000 after coercing worker to pay union fees
The Federal Court has imposed total penalties of $78,000 against the CFMMEU and two of its shop stewards for coercing a worker to pay union fees on two separate construction sites in the Melbourne CBD (04 April 2019).  More... 

Published - reports, articles, speeches 

Department of Jobs and Small Business: Monthly leading indicator of employment April 2019
The Department of Jobs and Small Business’ Monthly Leading Indicator of Employment (the Indicator) has fallen for the twelfth consecutive month in April 2019, following a rise of eight consecutive months.  More... 

“Flexible ongoing” employment: solving a problem that doesn’t exist
Emma Dawson, Abigail Lewis, Warwick Smith; Per Capita: 23 April 2019
This paper outlines the context within which the flexible ongoing proposal arose, the WorkPac vs. Skene decision, and the NSWBC’s concerns about “double dipping.” It then examines the nature of casual work in Australia and provides an analysis of how the proposed flexible ongoing category.  More... 

Policy priorities for the next Australian government: employment
Australian Council of Social Service: 12 April 2019
Australia's peak body for social services has released its employment election policy priorities, designed to foster full employment, reduce long-term unemployment, and support an effective employment services system.  More... 

Expanding economic opportunity: an international comparison of Australia’s labour market regulation
Kurt Wallace, Institute of Public Affairs: 01 April 2019
This report presents a comparison of Australia’s labour market entitlements with similar common law countries, and looks at how the labour market is perceived in ways that affect investment and growth.  More... 

Australian Bureau of Statistics
24 April 2019 Labour Force, Australia, Detailed - Electronic Delivery, Mar 2019 (cat no. 6291.0.55.001)
18 April 2019 Labour Force, Australia, Mar 2019 (cat no. 6202.0)
17 April 2019 Employment in Renewable Energy Activities, Australia, 2017-18 (cat no. 4631.0)

In practice and courts

FWO: Changes to the Horticulture Award
Our Pay Calculator has been updated and you can use it to calculate the new overtime, night loading and public holiday penalty rates. The changes apply from the first full pay period on or after 15 April 2019 (April 2019).  More... 

FWO: Public holidays
Public holidays can be different depending on the state or territory you work in. It's important to know when public holidays are because employees can get different entitlements on these days.  You can calculate these entitlements using our Pay Calculator. Go to our List of public holidays page here for a full list of public holidays in your state or territory (April 2019).  More...  

ABCC e-alert: Contractor APM issued exclusion sanction following building code breach
Victorian building company APM Group (Aust) Pty Ltd (APM) and its related entity APM Holdings (Aust) Pty Ltd has been issued a one-month exclusion sanction for its failure to comply with state security of payments legislation (10 April 2019).  More... 

Labour-hire licensing scheme commences 29 April 2019
Labour-hire providers will have six months to apply for a licence to operate in the State after this time. To obtain and keep a licence, labour-hire firms will need to pass a "fit and proper person test", which involves demonstrating long-term compliance with Victoria's OHS and workers' compensation Acts.   More... 

Cases

Carr v ILSC (Brisbane) Pty Ltd & Anor, Pathik v ILSC (Brisbane) Pty Ltd & Anor (No 2) [2019] FCCA 1028
INDUSTRIAL LAW – Fair Work Act 2009 – costs – whether rejection of offer of settlement unreasonable.
COSTS – Calderbank offer at early stage of proceeding more favourable than result achieved by offeree applicant – whether unreasonably refused. 

Ridd v James Cook University [2019] FCCA 997
INDUSTRIAL LAW – Enterprise Agreement – Code of Conduct – where Intellectual Freedom enshrined in Enterprise Agreement – where Code of Conduct inconsistent with Enterprise Agreement – primacy of Enterprise Agreement. Fair Work Act 2009 (Cth), s.50. (1) The Court rules that the 17 findings made by the University, the two speech directions, the five confidentiality directions, the no satire direction, the censure and the final censure given by the University and the termination of employment of Professor Ridd by the University were all unlawful

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) [2019] FCAFC 59
INDUSTRIAL LAW – appeal from a single judge of the Federal Court – where respondents engaged employees and subcontractors in stop-work meetings – contraventions of ss 355 and 346(b) of the Fair Work Act 2009 (Cth) – whether respondents also contravened s 417 – whether stop-work meetings were “industrial action” when employers had agreed to or authorised union meetings under an enterprise agreement – whether s 19(2)(a) applies – proper construction of the union meeting clause in an enterprise agreement – whether s 19(2)(a) authorises agreements with respect to industrial action which could be taken for the unlawful purpose of contravening sections of Pt 3-1 – whether there is a requirement that a union meeting be for a “genuine” purpose – whether a union meeting for an unlawful purpose is a “sham” and unlawful under s 194(e) for inconsistency with s 417
 INDUSTRIAL LAW – pecuniary penalties imposed on the union through individual union officers for contraventions of s 355 and s 346(b) by sixteen strikes or stop-work meetings over nine days – whether more than one penalty should be imposed on those days in which there were multiple contraventions on multiple sites – application of s 556 for contraventions on the same date – application of course of conduct principle – deliberate, premeditated and sustained campaign of unlawful industrial behaviour orchestrated by the union – extensive and vast history of prior contraventions – involvement of senior union officers – loss found to be likely greater on the days where multiple sites affected – single penalty for each day involving multiple contraventions across multiple sites inadequate – appeal allowed in part 

Parker v Australian Building and Construction Commissioner [2019] FCAFC 56
INDUSTRIAL LAW – appeal and cross-appeal from liability and penalty judgment of the Federal Court of Australia – where primary judge imposed civil penalties on individuals for breaches of ss 50, 348, 355 and 417 of the Fair Work Act 2009 (Cth) – where legal liability for contraventions of individuals attributed to both the Construction, Forestry, Mining and Energy Union (CFMEU) and CFMEU NSW – whether primary judge had sufficient evidence to establish causal link between site meeting and non-attendance of workers to establish breach of s 417 – whether primary judge impermissibly relied upon conduct of appellants on second day to find industrial action on first day – whether primary judge failed to make findings necessary to conclude there was a breach of s 417 – whether insufficient evidence to find intention to coerce in breach of s 348 and s 355 – whether no obligation for appellants to engage in dispute resolution procedure and primary judge therefore erred in finding contravention of s 50 – held: appeal on liability grounds dismissed
PRACTICE AND PROCEDURE – whether primary judge erred in striking out pleadings on accessorial liability for contravention of s 50 by reason of insufficient clarity – whether failure to address and determine claim that individual appellants had accessorial liability for CFMEU s 50 contravention arising from conduct of those individuals – whether primary judge failed to apply presumption in s 361 when dismissing s 348 claims against individuals – held: cross-appeal upheld in part – primary judge entitled to find pleaded allegation fell short of clarity required but obliged to consider pleaded allegation of accessorial liability for CFMEU contravention – declarations of contravention by individuals made without further penalty being imposed
INDUSTRIAL LAW – whether primary judge erred in rejecting contention there was a single course of conduct at common law or under s 557 – whether primary judge erred in finding penalties imposed on individuals were appropriate in their totality – where primary judge imposed civil penalties in the maximum amount against the CFMEU and 75% of the maximum amount against the CFMEU NSW – whether primary judge should have grouped contraventions of the two Unions – whether penalties imposed on the Unions appropriate in their totality – whether primary judge erred in finding s 545 was a source of power to make publication order – whether s 23 of the Federal Court of Australia Act 1976 (Cth) did provide such a power if s 545 insufficient – whether primary judge erred in exercise of discretion in making publication order as no proper basis and so long after the event – held: appeal on penalty grounds upheld in part – primary judge gave extensive and careful consideration of conduct of individuals but omitted to give adequate attention to totality in relation to Unions – penalties treated attributed conduct as separate events each warranting penalties in the maximum or 75% of the maximum amount – needed to be account given to commonality and overlap of attributed conduct – held: penalties on CFMEU reduced to 75% of the maximum amount – penalties on CFMEU NSW reduced to 40% of the maximum amount – s 23 sufficient source of power to make publication order though regard must be had to the specific legislation giving rise to the seeking of the order – publication order set aside; not appropriate to make a replacement publication order in the circumstances  

Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 451
EVIDENCE – state of satisfaction required by s 140 of Evidence Act 1995 (Cth) – application of principles to civil penalty proceedings – probabilities derived from contemporaneous documents – significant amount of evidence not challenged – forensic decision not to adduce evidence in the respondents’ case – Jones v Dunkel inference – failure to call witness cannot make up deficiency of evidence – where evidence is not contradicted any inference favourable to that party might be more confidently drawn where a person capable of putting the true complexion on the facts has not been called – no explanation provided regarding the failure to call any witnesses in the respondents’ case
INDUSTRIAL LAW – contraventions of ss 417, 421, 340 of the Fair Work Act 2009 (Cth) – where Union organised unprotected industrial action – interpretation of enterprise agreement – having regard to industrial purpose of agreement – where Union alleged employees were directed to work differently – relevance of dispute resolution procedure – superficial change to aspects of the work insufficient – whether suspected breach of enterprise agreement sufficient to engage protection from industrial action – no reasonable basis for belief of breach – contravention of 340 – whether industrial action constituted adverse action – the right to have employees perform work as required by the employer is a benefit under a workplace instrument – necessity of proving intent – no evidence adduced to discharge onus – sufficient if one reason of many is unlawful – belief that conduct was lawful does not make it so – alleged contravention of s 343 – particularly serious form of industrial misconduct – allegation made without detailed argument as to why such a contravention should be found – Court should receive further assistance on this issue 

Australian Building and Construction Commissioner v Ravbar (No 2) [2019] FCA 522
INDUSTRIAL LAW – penalties to be imposed for contraventions of s 343 of the Fair Work Act 2009 (Cth) – whether two penalties or two penalties with a notional maximum of one should be imposed on the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) for the contraventions of s 343 based on the conduct of the first and third respondents – whether the conduct of the first and third respondents form part of the same transaction or course of conduct – how the CFMMEU’s history of contraventions should be taken into account in assessing an appropriate penalty – what factors should be taken into account when assessing the objective seriousness, or gravity, of the respondents’ contravening conduct – what the appropriate penalties should be - Fair Work Act 2009 (Cth)

Legislation

Commonwealth

Acts

Corporations Amendment (Strengthening Protections for Employee Entitlements) Act 2019
10/04/2019 - Act No. 44 of 20 

Bills

Corporations Amendment (Strengthening Protections for Employee Entitlements) Bill 2018
Amends the: Corporations Act 2001 to: strengthen enforcement and recovery options to deter and penalise company directors and other persons who engage in, or facilitate, transactions that are aimed at preventing, avoiding or significantly reducing employer liability for employee entitlements in insolvency; enable the recovery of unpaid employee entitlements of an insolvent company from certain entities in limited circumstances; and enable the Australian Securities and Investments Commission to disqualify company directors and other officers (either directly or on application to the Court), where they have a track record of corporate contraventions and inappropriately using the Fair Entitlements Guarantee scheme to pay outstanding employee entitlements; and Corporations (Aboriginal and Torres Strait Islander) Act 2006 to make a consequential amendment.Finally passed both Houses 04 April 2019. 

Contacts:
Sydney
Stephen Trew, Managing Partner, Sydney
T: +61 2 8083 0439
E: stephen.trew@holdingredlich.com

Michael Selinger, Partner
T: +61 2 8083 0430
E: michael.selinger@holdingredlich.com

Melbourne
Charles Power, Partner
T: +61 3 9321 9942
E: charles.power@holdingredlich.com

Benjamin Marshall, Partner
T: +61 3 9321 9864
E: ben.marshall@holdingredlich.com

Brisbane
Rachel Drew, Partner
T: +61 7 3135 0617
E: rachel.drew@holdingredlich.com

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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