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Employment Law and Workplace Relations Monthly Update – April 2021

12 May 2021

#Workplace Relations & Safety

Employment Law and Workplace Relations Monthly Update – April 2021

In the media

Wellways Australia signs Enforceable Undertaking
Mental health, community care and disability services provider Wellways Australia Limited will back-pay staff more than $1.5 million after entering into an Enforceable Undertaking with the Fair Work Ombudsman (29 April 2021).  More... 

Australian CEOs pledge to stamp out sexual harassment in the workplace
CEOs of Australia’s leading businesses have signed a pledge to stamp out sexual harassment in the workplace. Launched by Diversity Council Australia, the #IStandForRespect campaign is a public promise to take a zero-tolerance approach to gendered harassment and foster a workplace that is safe for everyone (28 April 2021).  More...

Former CFMMEU Secretary and Assistant Secretary penalised over school unlawful entry case
Two former CFMMEU NSW senior officials have been penalised a total of $9,180 following a judgment in the Federal Circuit Court (27 April 2021).  More...

Cleaners allegedly underpaid over $100,000
The Fair Work Ombudsman has commenced legal action against a contract cleaning company in regional WA, alleging it underpaid employees more than $119,000 and falsified records (26 April 2021).  More... 

Insurance company faces court
The Fair Work Ombudsman has commenced legal action in the Federal Circuit Court against the operators of a South Melbourne-based business that provides insurance to the transport industry (26 April 2021).  More... 

Home Affairs Department moves to ban sleeveless clothing – even on Zoom
A new dress code proposed by the Department of Home Affairs will ban staff from wearing sleeveless clothing, even on video calls. However, the Fair Work Commission has ruled the department must consult with staff before imposing new policies, after a legal challenge by the Community and Public Sector Union (24 April 2021).  More...

Trolley collecting operator faces court
The Fair Work Ombudsman has commenced legal action against the operator of a trolley collecting business in regional NSW for allegedly breaching a Fair Work Commission order (23 April 2021).  More...

CFMMEU and senior officials in NSW hit with more than $1 million in penalties for industrial thuggery and bullying
The Federal Court has handed down $1,022,500 in penalties against the CFMMEU, three of its highest-ranking NSW officials and a delegate following threats and unlawful pickets against Sydney crane company Botany Cranes in January 2019 (22 April 2021).  More...

Queensland construction company penalised
The Fair Work Ombudsman has secured a total of $53,000 in penalties in court against the operators of a Queensland business in the construction industry for ignoring a Fair Work Commission order by failing to compensate an employee who was unfairly dismissed (20 April 2021).  More... 

Senate Committee on insecure work
While much of the Government’s Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 was abandoned during its passage through Parliament, the remaining provisions still push the dial in precisely the wrong direction. The new legislation explicitly confirms the right of employers to define workers as casuals, even if the work they perform is regular (16 April 2021).  More...

Hours worked recover to pre-COVID level
Seasonally adjusted employment increased by 71,000 people between February and March 2021 according to the Australian Bureau of Statistics. “Employment and hours worked in March 2021 were both higher than March 2020, up by 0.6 per cent and 1.2 per cent” (15 April 2021).  More...

Comcare guide to beat workplace harassment
Comcare has released a guidance resource to help employers, managers, supervisors and workers prevent and respond to sexual harassment in the workplace (05 April 2021).  More...

Appointments to the Fair Work Commission
Attorney-General and Minister for Industrial Relations, Michaelia Cash, announced the appointment of five new Fair Work Commission members (01 April 2021).  More...

Published reports articles, speeches

Department of Jobs and Small Business: Monthly Leading Indicator of Employment 2021
The Monthly Leading Indicator of Employment (the Indicator) has risen for the tenth consecutive month in April 2021. The Indicator’s rise this month is attributed to three of its five components. Read more here.

In practice and courts

FWO: Visual piecework agreement template for horticulture employers
Our first visual agreement template to help employers and their employees make a piecework agreement simply and easily under the Horticulture Award. The visual agreement template can be found in our Horticulture Showcase. Our Showcase has information about how to use piecework agreements. Use the visual piecework agreement template. Read more here (27 April 2021).

WFC: Equal Remuneration and Work Value Case decision issued
The Fair Work Commission issued the Equal Remuneration and Work Value Case decision. A summary of the decision is available on the summaries of significant decisions page on the Commission's website. Read the summary of the decision (19 April 2021).

FWO: Enterprise agreements timeliness benchmarks – statement
The President of the Fair Work Commission issued a statement setting out new timeliness benchmarks for the Commission to determine applications for approval of enterprise agreements. Read the statement. Click here to find out more (12 April 2021).

FWO: Changes to casual employment terms – statements published
The President of the Fair Work Commission has issued a statement relating to changes arising from the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021. A major case website has been established to publish material relating to the casual terms award review 2021. View the statement about the casual amendments and information about the casual terms award review 2021. Click here to read more (09 April 2021).

FWO: Workplace Advice Service goes national
From 1 April 2021 the Workplace Advice Service has been available nationally. Read more here (01 April 2021).

Cases

Australian Building and Construction Commissioner v Hanlon (No 2) [2021] FCCA 787
INDUSTRIAL LAW – breaches of civil remedy provisions of the Fair Work Act 2009 – imposition of pecuniary penalties – relevant considerations.
Fair Work Act 2009, ss 500, 539, 546 – Crimes Act 1914, s 4AA – Workplace Relations Act 1996.
The first respondent pay a penalty of $3,060. The second respondent pay a penalty of $6,120.

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 3) (The Botany Cranes Case) [2021] FCA 363
INDUSTRIAL LAW – application for declarations of contraventions of ss 47(1), 52(a) and 54(1) Building and Construction Industry (Improving Productivity) Act 2016 (Cth) by officers of building industry participant acting on its behalf and by their conduct and states of mind also by participant under s 94 – where contraveners organised and or engaged in unlawful picket that prevented and intimidated persons accessing or leaving building site to coerce employer to reemploy employee and advance industrial objective of signing proposed enterprise agreement in contravention of s 47(1) – where officers of association acting on its behalf organised and engaged or threatened to organise or take action with intent to coerce employer to reemploy employee in contravention of s 52(a) – where officer of association acting on its behalf threatened to organise or take action against employer with intent to apply undue pressure to it to agree to make enterprise agreement in contravention of s 54(1)(a).
STATUTORY INTERPRETATION – whether multiple contraventions by conduct of officials acting on behalf of building industry participant taken to be its conduct can result in multiple contraventions by participant of same civil penalty provision under ss 83, 84 and 91 – whether conduct common to each contravener’s contraventions of one of ss 47(1) and 52(a) “same conduct” or “particular conduct” precluding more than one penalty being imposed in relation to that conduct for other contravention – meaning of “particular conduct”, “same conduct” and “same facts” in ss 83, 84 and 91.
INDUSTRIAL LAW – penalty – where building industry participant and officials acting on its behalf have significant history of prior contraventions – where contravening conduct intimidated employees of and caused loss of revenue to building industry participant – power to order part of penalty to be paid to persons affected by contravention under s 81(5).

New v Edition Coffee Roasters Pty Ltd [2021] FCCA 777
INDUSTRIAL LAW – default judgment application against second respondent – second respondent aware of proceeding and had previously participated – default judgment ordered against second respondent – application for joinder of proposed sixth respondent – no arguable case against the proposed sixth respondent – joinder refused – removal application of third, fourth, and fifth respondents – removal application granted.
COSTS – costs application brought by the third, fourth, and fifth respondents – respondents bear their own costs.
Corporations Act 2001 (Cth) ss 58AA, 500 – Fair Work Act 2009 (Cth) ss 44, 45, 62, 340, 361, 536, 550, 570.

Kolozsvari v BIC Services Pty Ltd [2021] FCCA 742
INDUSTRIAL LAW – application for summary dismissal – failure to comply with orders – where the breach has been rectified – consideration of Rule 13.03B Federal Circuit Court Rules 2001 (Cth) – consideration of abuse of process and prolongation of proceedings – application for summary dismissal not granted – costs in the cause.

Fair Work Ombudsman v Tester [2021] FCCA 771
INDUSTRIAL LAW – Commonwealth – compliance and enforcement – civil remedies – pecuniary penalty orders – amount of penalty – failure to comply with compliance notice.
Fair Work Act 2009 (Cth) ss 539(2) 546, 557(1), 557(2), 716(2), 716(3), 716(4A), 716(4B), 716(5), 717.

Fair Work Ombudsman v Yorktor Pty Ltd [2021] FCCA 779
INDUSTRIAL LAW – admitted contraventions of Fair Work Act 2009 – failure to comply with a compliance notice pursuant to section 716(5) of the Fair Work Act – first respondent in liquidation – assessment of pecuniary penalties as against second respondent who admitted to involvement in the contravention within the meaning of section 550 of the Fair Work Act 2009 – non-exhaustive list of factors relevant to the imposition of a penalty – imposition of penalty appropriate to discourage similar conduct in the industry.
Pursuant to section 546(1) of the FW Act, the second respondent pay a pecuniary penalty in the total sum of $3500.00 to the Commonwealth for the contravention set out in paragraph 1 herein, within 21 days of the date of these orders.

Fair Work Ombudsman v ADADN Pty Ltd [2021] FCCA 756
INDUSTRIAL LAW – Commonwealth – compliance and enforcement – civil remedies – pecuniary penalty orders – amount of penalty – failure to comply with order of Fair Work Commission.
Pursuant to s.545(2) of the Fair Work Act 2009 (Cth), within 28 days of the date of these orders the first respondent pay (a) the sum of $34,590.00 to the applicant.

Fair Work Ombudsman v Trucking Services Pty Ltd [2021] FCCA 760
INDUSTRIAL LAW – Commonwealth – compliance and enforcement – civil remedies – pecuniary penalty orders – amount of penalty – failure to comply with compliance notice.
Pursuant to s.546(1) of the Fair Work Act 2009 (Cth), the respondent pay a pecuniary penalty of $25,200 $20,000 to the Commonwealth for the contravention of s.716(5) of the Fair Work Act 2009 (Cth) the subject of the declaration made by this Court on 25 January, 2021, within 28 days of the date of this order.

Carbone v James McConvill & Associates [2021] FCCA 661
INDUSTRIAL LAW – Fair Work application – claims for breach of contract and claims under the Competition and Consumer Act 2010 (Cth) – where default judgment has been entered by the Federal Court in favour of the applicant with damages to be assessed – matter remitted for hearing in the Federal Circuit Court for the assessment of damages, pecuniary penalties and any question of associated costs – where the applicant abandoned claims for breach of contract.
In respect of the applicant’s claim under the Fair Work Act 2009 (Cth) (the FW Act), the first respondent and second respondent jointly and severally pay to the applicant the sum of $157,693.38 pursuant to section 545 of the FW Act.

The FWC Bulletin
Volume 14/21 22 April 2021
Volume 13/21 15 April 2021
Volume 12/21 1 April 2021

Legislation

Regulations

JobMaker Hiring Credit Reporting Obligations Amendment Instrument 2021
20 April 2021 – this instrument makes minor updates to the JobMaker Hiring Credit Reporting Obligations Instrument 2020 and enables employers with single touch payroll software constraints to make a claim for JobMaker Hiring Credit payments.

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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