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Employment Law and Workplace Relations Monthly Update - April 2020

07 May 2020

#Workplace Relations & Safety

Employment Law and Workplace Relations Monthly Update - April 2020

COVID-19 update

Almost half the businesses interested in JobKeeper have not signed up
Hundreds of thousands of employers who registered interest in JobKeeper have not signed up for the payment, citing ineligible workers, confusing rules and cashflow problems (29 April 2020).  More...

Workplaces warned to be ready to respond immediately if COVID-19 emerges, as restrictions are
Australian business are presented with a new set of rules on how to manage workplaces during the coronavirus pandemic, as Prime Minister Scott Morrison says he would "love to see a return to work across the board" (24 April 2020).  More...

Young people dominate nearly 800,000 job losses since COVID-19 crisis escalated
The COVID-19 pandemic resulted in a 5.5 per cent slump in jobs in the first week after extensive business shutdowns and social-distancing limits were introduced to contain the virus (21 April 2020).  More...

600,000 people out of a job, 1.6 million with no income from work: ABS estimates the initial cost of coronavirus
A new survey from the ABS shows the extreme effect of coronavirus social-distancing measures on employment, with well over a million workers losing their incomes in the space of a month (20 April 2020).  More...

The seven steps every workplace should follow if someone shows symptoms for coronavirus
The Prime Minister says he wants everyone to follow these seven steps if someone at work is worried they have COVID-19 (07 April 2020).  More...

Qantas under investigation for standing down worker who raised coronavirus concerns
The Transport Workers' Union says the worker was just looking out for fellow cleaners, but Qantas says the employee was spreading incorrect information (02 April 2020).  More...

Working together in the national interest – COVID-19 next steps
Business Council of Australia: 20 April 2020
Australia has been highly successful at managing the COVID-19 pandemic’s impact on local health outcomes. The business community stands ready to step-up and stand side by side with state and federal governments to safely re-open the economy and to provide and promote safe workplaces.  More...

Returning to work during the pandemic
Michael Shoebridge, Australian Strategic Policy Institute: 15 April 2020
How might Australia return to work without getting back on the elevator of exponentially growing infection and deaths? This report sketches out that path, with the answers involving mass testing, and companies funded and supported to do rapid testing, data collection and analysis.  More...

Working from home: opportunities and risks
Alison Pennington, Jim Stanford; Centre for Future Work: 13 April 2020
With many regular workplaces shut down to 'flatten the curve' of COVID-19, millions of Australians are now shifting their work to home. This paper surveys the scope of home work, considers its impacts on economic and gender inequality, and proposes several policy recommendations.  More...

Shutdown: estimating the COVID-19 employment shock
Brendan Coates et al; Grattan Institute: 19 April 2020
Australia’s governments are rightly spending record amounts trying to cushion Australian workers and businesses from the worst impacts of this unprecedented crisis. This paper shows that the economic shock from COVID-19 is going to be so big that more support will be needed.  More...

FWC: Jobkeeper disputes benchbook published
The Fair Work Commission has published a new Jobkeeper disputes benchbook.
Under the new Part 6-4C, the Commission has a role in helping parties resolve some disputes relating to the jobkeeper payment scheme. The benchbook has been prepared by staff of the Commission to provide information about the Commission’s role in dealing with jobkeeper disputes (28 April 2020).  More...

JobKeeper Amendments to the Fair Work Act
This legislative package contains a number of bills to implement the Government’s economic response to the spread of the Coronavirus. Schedule 1 amends the Fair Work Act to support the practical operation of the JobKeeper scheme in Australian workplaces in the national workplace relations system and keep Australians employed.  More...

JobKeeper - Rules
This instrument is the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 made.  More...
Coronavirus Economic Response Package (Payments and Benefits) Rules 2020
Other unincorporated amendments to the Rules include:
Coronavirus Economic Response Package (Payments and Benefits) Amendment Rules (No. 1) 2020
Coronavirus Economic Response Package (Payments and Benefits) Amendment Rules (No. 2) 2020

JobKeeper – Alternative Decline in Turnover Test
This instrument applies to provide alternative bases for a class of entities to satisfy the decline in turnover test for the purposes of seeking to be a qualifying employer for JobKeeper payments, when the Commissioner is satisfied that there is not an appropriate relevant comparison period for the purposes of an entity in the class of entities satisfying the decline in turnover test under subsection 8(1) of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (F2020L00419) registered on 9 April 2020 (the Rules).  More...

Public Service (Terms and Conditions of Employment) (General wage increase deferrals during the COVID-19 pandemic) Determination 2020
09/04/2020 - This instrument provides a six-month delay to Australian Public Service wage increases occurring during a period of 12 months.  More...

In the media

Court penalises Darwin restaurant operators
The operators of the Darwin restaurant, Bar.B.Q Tonight NT, have been penalised $26,460 by the Federal Circuit Court for failing to comply with a Compliance Notice issued by the Fair Work Ombudsman (30 April 2020).  More...

CFMMEU and official penalised over stop work at Glebe apartment project
The Federal Court has today handed down penalties totaling $193,000 against the CFMMEU and one of its organisers Anthony Sloane after Mr Sloane stopped work on a Sydney construction site in February 2018 over a one-hour pay claim (28 April 2020).  More...

Over $170,000 penalties for apprentice underpayments
The Fair Work Ombudsman has secured penalties of $177,174 against a Queensland construction company and its director after two young carpentry apprentices were underpaid $32,347 (27 April 2020).  More... 

ABCC alleges CFMMEU officials repeatedly disrupt work at Adelaide Airport site
The ABCC has filed Federal Court proceedings against the CFMMEU and nine of its officials over several alleged contraventions that occurred on the redevelopment site of Terminal 1 at Adelaide Airport in 2019 (21 April 2020).  More...

CFMMEU Tas assistant secretary hit with personal payment order for latest breach
The Federal Court today ordered CFMMEU state assistant secretary Richard Hassett personally pay a $10,000 penalty for the latest in a series of right of entry breaches (21 April 2020).  More...

CFMMEU officials allegedly breach right of entry at Hobart Construction site
The ABCC has commenced Federal Court action alleging the CFMMEU and two of its Tasmanian officials breached right of entry laws during construction of serviced apartments in Hobart in 2019 (14 April 2020).  More...

ABCC takes court action over alleged unlawful picket of Perth building site
The ABCC has filed Federal Court proceedings against West Australian company Tyrone Construction Services Pty Ltd and one of its representatives over alleged unlawful pickets of the Perth-based building site known as ‘Skypark’ on 27 June and 1 August 2019 (11 April 2020).  More...

Silo manufacturer penalised
The Fair Work Ombudsman has secured penalties totalling $60,000 against a silo manufacturer for underpaying workers and failing to produce employment records (09 April 2020).  More... 

Long-haul transport business faces court
The Fair Work Ombudsman has commenced legal action in the Federal Circuit Court against Sapphire Freighters Pty Ltd (Sapphire Freighters), a long distance trucking business transporting goods between Melbourne and Brisbane (30 March 2020).  More...

Published - reports, articles, speeches 

ABCC Industry Update – April 2020 edition
The April edition of Industry Update features the latest information from the ABCC in response to COVID-19: FAQs, information on how to keep your worksite safe and more.  More...

Department of Jobs and Small Business: Monthly Leading Indicator of Employment April 2020
The Monthly Leading Indicator of Employment (the Indicator) has fallen for the sixth consecutive month in April 2020, after two consecutive monthly rises (following trend revisions) The reversal in the Indicator’s recent monthly movements stems from the global economic disruption, arising from the worldwide COVID-19 epidemic.  More...

In practice and courts

FWC: 12 modern awards extensively varied
The technical and drafting matters for the second tranche of awards have been completed. The varied awards were published on 14 February 2020 and the first group commenced operation. To find out which awards have been varied, and to access the new versions of the awards, go to the Modern awards list on the Commission's website (13 April 2029).  More...

FWC: 31 modern awards extensively varied
The modern awards will be varied in 3 tranches during 2020. The technical and drafting matters for the second tranche of 31 awards have been completed. The varied awards have been issued and will commence operation on 13 April 2020 and 4 May 2020 for the manufacturing section. Refer to the changes here Modern awards list.  More...

New Government Consultations

Improving protections of employees’ wages and entitlements: further strengthening the civil compliance and enforcement framework
The discussion paper outlining a range of reform options had been released and submissions were now being sought from all interested stakeholders to help inform any future policy changes. Submissions can be made by email to IRconsultation@ag.gov.au. The closing date for submissions is 3 April 2020.  More...

APH Senate Inquiry
Unlawful underpayment of employees' remuneration
Status: Accepting Submissions Date Referred: 13 November 2019 Submissions Reporting Date: 25 June 2020

Cases

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 549
INDUSTRIAL LAW – penalties – agreement as to range – course of conduct – civil double jeopardy – totality principle - Building and Construction Industry (Improving Productivity) Act 2016 (Cth) ss 7, 46, 81, 83, 91, 417, 421; Fair Work Act 2009 (Cth) ss 500, 546, 556,

Fair Work Ombudsman v G.Q. Industries Pty Ltd & Anor [2020] FCCA 928
 INDUSTRIAL LAW – Imposition of pecuniary penalties – no appearance on behalf of the respondents – applicable principles – adverse action against vulnerable employee – non-payment of wages and other entitlements. - Fair Work Act 2009 (Cth), ss.44, 45, 340, 535, 550; Federal Court of Australia Act 1976 (Cth), s.23; Federal Circuit Court of Australia Act 1999 (Cth), s.15 - 

(1) That within 28 days of this order, the First Respondent pay to the Commonwealth a pecuniary penalty in the amount of $147,645.00 pursuant to the provisions of section 546(1) of the FW Act.

Anstey v Mambourin Enterprises Ltd (No.2) [2020] FCCA 907
INDUSTRIAL LAW – Penalty – failure to pay annual leave loading on the applicant’s fifth and sixth weeks of annual leave each year contrary to the provisions of the applicable award – no admissions – matter going to trial – post-judgment contrition and corrective action – previously unblemished record – single decision leading to multiple breaches over six years.- Fair Work Act 2009, ss.45, 546, 557
Pursuant to s. 546 of the Fair Work Act 2009 (“the Act”), the respondent pay the applicant a penalty of $9,450 for the respondent’s breach of s.45 of the Act by breaching cl.31.3(a) of the Social, Community, Home Care and Disability Services Industry Award 2010 by failing to pay the applicant an annual leave loading of 17.5%

Australian Building and Construction Commissioner v Hassett [2020] FCA 498
INDUSTRIAL LAW – penalties – contraventions of s 494(1) of the Fair Work Act 2009 (Cth) – quantification of penalties for admitted breaches – personal payment order
Crimes Act 1914 (Cth) s 4AA; Fair Work Act 2009 (Cth) ss 484, 494(1), 500, 512, 539(2), 546(2), 550, 793
Fair Work (Registered Organisations) Act 2009 (Cth) Ch 8 Pt 3
The first respondent pay to the Commonwealth of Australia a penalty of $10,000 in respect of his contravention of section 494(1) on 16 January 2019.
The second respondent pay to the Commonwealth of Australia a penalty of $50,000 in respect of its contravention of section 494(1) on 16 January 2019.

Harper v Tingmak Pty Ltd & Ors [2020] FCCA 626
 INDUSTRIAL LAW – Fair Work Proceedings – contravention of s 340 of the Fair Work Act 2009 (Cth) – where the applicant was employed as an Administrative Support Worker for the respondents – where the applicant exercised her workplace right pursuant to s 341 of the Fair Work Act 2009 (Cth) – failure to pay wages and superannuation entitlements – whether respondents breached relevant acts and Awards in regards to those underpayments – whether a penalty should be imposed for alleged contraventions – penalty payable to the applicant – application for summary judgment granted.

Construction, Forestry, Maritime, Mining & Energy Union v BGC POS Pty Ltd & Anor (No.2) [2020] FCCA 833
INDUSTRIAL LAW – Contravention of s.502 of the Fair Work Act 2009 (Cth) – appropriate penalty – factors for consideration – penalty in lower range imposed.
Crimes Act 1914 (Cth), s.4AA
Fair Work Act 2009 (Cth), pt.3-4, ss.12, 480, 490, 492, 500, 501, 502, 539, 546, 793
(1) The first respondent pay to the applicant pecuniary penalties fixed in the sum of $10,800 within 28 days of the date of these orders.
(2) The second respondent pay to the applicant pecuniary penalties fixed in the sum of $2,160 within 28 days of the date of these orders.

Chevron Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2020] FCA 451
INDUSTRIAL LAW - contraventions of s 417(1) of Fair Work Act 2009 (Cth) - union organised unlawful industrial action by employees over two days - two contraventions - where same facts founded each declaration of contravention - pecuniary penalty - common law course of conduct principle - meaning of s 557(3) of the Fair Work Act 2009 (Cth) - single penalty to avoid double punishment - compensation - suspension of payment - injunction
Fair Work Act 2009 (Cth) ss 3, 19, 27, 44, 45, 417, 545, 546, 557; Fair Work (Registered Organisations) Act 2009 (Cth) s 79
The respondent pay to the applicant damages in the amount of $3,000,000 (inclusive of GST and interest) in compensation for the applicant's irrecoverable loss and damage suffered as a result of the respondent's contravention of s 417 of the FW Act, as described in Chevron Australia Pty Ltd v The Maritime Union of Australia (No 2) [2016] FCA 768

O'Connor v Setka [2020] FCA 441
 INDUSTRIAL LAW – Fair Work (Registered Organisations) Act 2009 (Cth) – application under s 164 for an order giving directions for the performance or observance of union rules – where internal membership demarcation dispute between divisions of the union involving proper construction of union rules
UNION RULES – principles of construction – where rules amended from time to time – where internal inconsistencies and redundancies – whether rules to be construed by reference to deleted provisions – where construing instruments by reference to deleted words is unsafe guide to meaning
UNION RULES – where separate rules for the operation of divisions and branches of the union – such rules are subordinate to national rules
Fair Work (Registered Organisations) Act 2009 (Cth) ss 164, 164(3)

Fair Work Ombudsman v Lindsay F. Nelson Manufacturing Pty Ltd (No.2) [2020] FCCA 718
 INDUSTRIAL LAW – Application for declaration and pecuniary penalties following liability hearing – consideration of relevant matters – penalties imposed at levels in between the positions contended for by the parties.
Fair Work Act 2009 (Cth), ss.44(1), 45, 92, 545, 550, 557, 712(3)
For the reasons that follow, I think penalties in the amounts of $50,000 should be imposed upon the first respondent and $10,000 on the second respondent. I am also persuaded that in this case it is appropriate that there be declaratory relief as the applicant seeks.

Legislation

Commonwealth

Regulations

Fair Work Commission Amendment (Miscellaneous Measures) Rules 2020
24/04/2020 - This instrument amends the Fair Work Commission Rules 2013.Part 3—Amendments to require declarations rather than statutory declarations. 

Fair Work Amendment (Variation of Enterprise Agreements) Regulations 2020
16/04/2020These regulations amend the Fair Work Regulations 2009 to temporarily shorten the period that employees must have access to a copy of a proposed variation of an enterprise agreement, and before which employees must be notified of the details of the vote on the variation, from seven calendar days to one calendar day.
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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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