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Employment Law and Workplace Relations Monthly Update - August 2019

03 September 2019

#Workplace Relations & Safety

Employment Law and Workplace Relations Monthly Update - August 2019

In the media

Thales signs court-enforceable undertaking
A major manufacturing company has back-paid workers more than $7 million in wages, superannuation and interest, after entering into a Court-Enforceable Undertaking with the Fair Work Ombudsman (30 August 2019).  More...

Operators of two Hello Juice outlets face court
The Fair Work Ombudsman has commenced legal action against the operators of two Hello Juice outlets in Victoria, alleging they underpaid 27 workers a total of almost $40,000 (29 August 2019).  More...
'Massive fail': Bank teller with arthritis fights a big bank and wins
ANZ tried to force Irene Guesdon, 68, a bank teller with arthritis, to move to another branch after 22 years in Hoppers Crossing. She refused and won her battle (27 August 2019).   More...

Victims to have their say on wage theft
The Labor Government is holding forums across Victoria and will consult a range of employer groups and unions to ensure the new laws are fair. The government is making the underpayment of wages, as well as the withholding of entitlements such as penalty rates, superannuation and leave a criminal offence (26 August 2019).  More...

Bakers Delight suffers setback in pay agreement with staff
The national bakery chain's application to end a pay deal with employees was dismissed when its HR manager could not be contacted (25 August 2019).  More...

'The mouse that roared': Cadbury workers' sick leave win could affect you
Cadbury employees win a Federal Court case against their employer to be paid sick leave for the full 12 hours of their shift rather than the work standard of 7.6 hours per day, in a decision that is expected to have ramifications across Australia (22 August 2019).  More...

More pressure to fix casual 'double dipping' following $12 million class action
Pressure is mounting on the Coalition government to fix legal uncertainty over "double dipping" of casual loadings and entitlements, after the CFMEU launched a $12 million class action (21 August 2019).   More...

Wage theft now a problem for high-skilled workers
Wage theft and job insecurity is no longer only a problem for low-skilled workers (19 August 2019).   More...

BCA: The facts about Australia's enterprise bargaining system
We have a productivity problem that is dragging on our living standards. The Better off overall test is no doubt contributing to the weakness we are seeing in productivity growth (16 August 2019).  More... 

Allegations against Pioneer companies dismissed
The Fair Work Ombudsman’s legal action against Pioneer Facility Services and Pioneer Contracting Services (Pioneer companies) has been dismissed following an appeal (16 August 2019).  More...
WA labour-hire operator faces court
The Fair Work Ombudsman has commenced legal action in the Federal Circuit Court against WA labour-hire business, Corporation Sun Pty Ltd, and its part-owner and chief executive, Michael Le (12 August 2019).  More...
Metro Trains seeks injunction to stop industrial action
The federal court will determine whether the industrial action is legal. The union’s protected action ballot was approved by the Fair Work Commission (09 August 2019).  More...

Calls to increase cost for lodging unfair dismissal claims
The Small Business Association of Australia is the latest to call for reform to industrial relations (09 August 2019).  More...

Bus company fined after treating drivers as contractors instead of employees
Four drivers were underpaid a total of $46,012 (07 August 2019).  More...

Sydney transport company penalised $89,250
The Fair Work Ombudsman has secured a penalty of $89,250 in the Federal Circuit Court against Sydney transport company Eagle Tours Pty Ltd after it misclassified bus drivers as independent contractors (07 August 2019).  More...
Wages agreement terminated for airport workers who slept at terminal between shifts
A baggage handling company will no longer be able to require its employees to work split shifts (06 August 2019).  More...

“Small Business Fair Dismissal Code does not work”: Report
Ombudsman Kate Carnell has handed down a review of the Small Business Fair Dismissal Code, recommending a suite of changes to help small business employers meet their obligations (06 August 2019).  More... 

Published - reports, articles, speeches 

Review of the Small Business Fair Dismissal Code
Australian Small Business and Family Enterprise Ombudsman: 06 August 2019
The Small Business Fair Dismissal Code was formed in recognition that small business owners do not have the time or expertise to navigate the complexity of the unfair dismissal system. This review report recommends a suite of changes to help small business employers (6 August 2019).  More...

Department of Jobs and Small Business: Monthly Leading Indicator of Employment August 2019
The Monthly Leading Indicator of Employment (the Indicator) has fallen for the fifteenth consecutive month in August 2019, after nine consecutive monthly rises. The Indicator’s fall this month is attributed to declines in four of its five components.  More...

In practice and courts

FWO: Recent Federal Court decision: accrual of personal/carer’s leave
 On 21 August 2019, the Federal Court of Australia handed down a decision about the method of accruing and taking  personal/carer’s leave under the Fair Work Act 2009.  More...

FWO: Family & domestic violence could be affecting your employees
Our new guide helps employers understand their workplace obligations to employees affected by family and domestic violence (August 2019).  More...

FWC: Workplace Advice Service marks one-year anniversary
This month marks the one -year anniversary of the Workplace Advice Service, a free legal assistance program coordinated by the Fair Work Commission. The service is offered by the Commission as part of its ongoing efforts to improve access to  justice and reduce complexity for unrepresented individuals and small business employers. Note: The Commission has recently launched a Workplace Advice Service online request form (13 August 2019).  More...

FWC: Findings report published: unfair dismissal
The Findings report: unfair dismissal correspondence user testing has been released (16 August 2019).  More...

FWC: Enterprise agreement update
The Fair Work Commission issued an Enterprise agreement update. It provides information on recent improvements in the Commission’s processes and timeliness in dealing with enterprise agreement applications (13 August 2019).  More...

FWC: Rules amendment & updated forms
The Fair Work Commission has registered the Fair Work Commission Amendment (Entry Permits and Other Measures) Rules 2019 (Rules Amendment). The Rules Amendment amended the Fair Work Commission Rules 2013 (Rules) with effect from 1 August 2019. New and updated forms incorporating changes required by the amended Rules are available on the Forms page of the Commission's website.  More...

Case

Comcare v Banerji [2019] HCA 23
Appeal allowed. Constitutional law (Cth) – Implied freedom of communication on governmental and political matters – Where Australian Public Service ("APS") Code of Conduct ("Code") included requirement in s 13(11) of Public Service Act 1999 (Cth) that employees behave in way that upholds APS Values and integrity and good reputation of APS – Where APS Values in s 10(1) of that Act included that APS is apolitical, performing functions in impartial and professional manner – Where Agency Head empowered by s 15(1) of that Act to impose sanctions on employee found to have breached Code, including termination of employment – Where employee of government Department published tweets critical of Department, its employees, policies and administration, Government and Opposition immigration policies, and members of Parliament – Where employment with Commonwealth terminated for breach of Code – Where employee claimed compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) for "injury", defined to exclude injury suffered as result of reasonable administrative action taken in reasonable manner in respect of employee's employment – Whether ss 10(1), 13(11) and 15(1) of Public Service Act impose effective burden on implied freedom – Whether burden on implied freedom justified – Whether impugned provisions for legitimate purpose – Whether provisions suitable, necessary and adequate in balance

Martin v Repeller Nominees Pty Ltd & Ors (No.2) [2019] FCCA 2102
 INDUSTRIAL LAW – Hospitality Industry (General) Award 2010 – construction of award – “hotel manager” – “senior management”. INDUSTRIAL LAW – Accessorial liability.
Fair Work Act 2009, ss.45, 535, 545, 550; Fair Work Regulations 2009, regs. 3.33, 3.34, 3.42

Pezzimenti v Rotary International [2019] FCCA 1854
INDUSTRIAL LAW – Fair Work – adverse action claim – complaint against supervisor relating to a Performance Improvement Plan – failure to attend meeting to discuss performance – dismissal – whether the employer had met its onus of proof concerning the reason for the dismissal considered – assessment of damages. Fair Work Act 2009 (Cth), ss.340, 342, 346, 361, 545

Fair Work Ombudsman v Lindsay F. Nelson Manufacturing Pty Limited & Anor [2019] FCCA 2151
INDUSTRIAL LAW – Alleged underpayment of annual leave and award entitlements – whether employer entitled to set-off over-award payments – whether employer failed to comply with Notices to Produce and/or had reasonable excuse for non-compliance. Fair Work Act 2009 (Cth)

Kroeger v Mornington Peninsula Shire Council [2019] FCCA 2313
INDUSTRIAL LAW – Fair Work – Applicant employed in two jobs – Applicant’s claim that the Respondent failed to calculate and pay overtime on the basis of hours worked in both jobs cumulatively – consideration of Lacson – matter indistinguishable from Lacson. Fair Work Act 2009 (Cth) ss.47, 50, 52, 545.

Mondelez v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) [2019] FCAFC 138
INDUSTRIAL LAW – s 96(1) of the Fair Work Act 2009 (Cth) – calculation of entitlement to paid personal/carer’s leave – meaning of the word “day”

One Tree Community Service Inc v United Voice [2019] FCA 1309
INDUSTRIAL LAW – where dispute about payment of redundancy and recognition of service of transferred employees was referred to Fair Work Commission for arbitration – employer challenged Commission’s jurisdiction – Commission satisfied as to jurisdiction
INDUSTRIAL LAW – where the employer commenced proceedings in this Court challenging the Commission’s jurisdiction to arbitrate – whether the new employer ‘consented’ to arbitration – scope of agreement to arbitrate – parties to agreement to arbitrate
CONSTITUTIONAL LAW – whether the Commission would be impermissibly exercising judicial power in arbitrating the dispute – private arbitration – whether the Commission would be infringing Ch III of the Constitution
PRACTICE AND PROCEDURE – application for interlocutory relief – whether a prima facie case established – whether balance of convenience favoured relief
Fair Work Act 2009 (Cth) ss 50, 52(1), 53(3)(a), 122(1), 182(1), 186, 186(6), 311, 311(2), 313, 313(1), 313(1)(a), 320, 562, 595(1), 595(3), 595(5), 738(b), 739, 739(4), 793

Fair Work Ombudsman v A & K Property Services Pty Ltd & Ors [2019] FCCA 2259
INDUSTRIAL LAW – Assessment of compensation – imposition of pecuniary penalties.
Fair Work Act 2009 (Cth), ss.44(1), 45, 87, 96, 535(1), 536(1), 539(2), 546(2) 550(1), 550(2), 557(1), 557(2), 557C
Fair Work Amendment (Protecting Vulnerable Workers) Act 2017
Fair Work Regulations 2009, regs.3.32, 3.33, 3.34, 3.36, 3.37

Zaki v Russells [2019] FCCA 2236
 INDUSTRIAL LAW – Fair Work Act 2009.
PRACTICE AND PROCEDURE – Subpoena – objection – whether legitimate forensic purpose. Fair Work Act 2009 (Cth), ss.44, 90, 117, 119, 323, 340, 361, 535

Fair Work Ombudsman v Hu [2019] FCAFC 133
 INDUSTRIAL LAW – accessorial liability – knowingly involved in – Second and Third Respondents not knowingly involved in contraventions of s 45 Fair Work Act 2009 (Cth)
PRACTICE AND PROCEDURE – appeal in the nature of a re-hearing – departure from findings of fact made by primary Judge. Fair Work Act 2009 (Cth) ss 45 – 49, 134, 138, 550,

DP World Melbourne Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2019] FCA 1331
 INDUSTRIAL LAW – application for interlocutory injunctive relief – whether respondent should continue to be restrained from encouraging or organising industrial action in the form of a “go-slow” – weak prima facie case – balance of convenience – injunctions granted
EVIDENCE – hearsay – whether evidence in the nature of admissions – whether evidence of the source of the previous representations has been led – whether evidence should be excluded on discretionary grounds – evidence excluded
Evidence Act 1995 (Cth) ss 75, 81, 87, 135; Fair Work Act 2009 (Cth) ss 408, 413, 418, 420, 421, 539, 545, 550

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v O-I Operations (Australia) Pty Ltd [2019] FCA 1272
 INDUSTRIAL LAW – application for interlocutory injunction – alleged adverse action – alleged failure to comply with enterprise agreement – applicants seek order restraining employer from continuing to deploy management or salaried staff to the performance of maintenance tasks – whether that deployment has deprived the applicants of the impact of protected industrial action – whether prima facie case is sufficiently strong to warrant the granting of injunctive relief – whether balance of convenience favours a grant of injunction – application granted
Fair Work Act 2009 (Cth) Pts 2-4, 3-1, 3-3, Div 6, ss 12, 50, 51, 52, 53, 54, 58, 172, 253, 340, 341, 342, 346, 347, 361, 408, 423, 426, 539, 545

Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Union Industry [2019] FCA 1265
INDUSTRIAL LAW – application for interlocutory relief – application for an injunction restraining the union from organising proposed industrial action – whether there is a prima facie case that favours injunctive relief – whether the balance of convenience favours injunctive relief – whether proposed union activity falls within the definition of protected industrial action – whether the union made misleading statements about the effect of proposed industrial action – whether proposed industrial action amounts to a threat to engage in conduct with intent to coerce particular responses – interlocutory application granted – mandatory orders made
Federal Court of Australia Act 1976 (Cth) s 23
Fair Work Act 2009 (Cth) Pts 2-4, 3-1, ss 12, 19, 341, 343, 345, 347, 348, 361, 408, 409, 414, 415, 539, 545

Director of the Fair Work Building Industry Inspectorate v CFMEU & Ors [2019] FCCA 2160
 INDUSTRIAL LAW – Adverse action against independent contractor – coercion – breach of enterprise agreement – unlawful industrial action – right of entry.
Fair Work Act 2009, ss.12, 19, 50, 51, 52, 306, 340, 341, 342, 343, 348, 361, 363, 417, 481, 484, 487, 500, 503, 512, 539, 546, 793 

Fair Work Ombudsman v Nobrace Centre Pty Ltd & Anor (No.2) [2019] FCCA 2144
 INDUSTRIAL LAW – Penalty – failure to comply with compliance notice – consideration of appropriate penalties – where the employee is of non-English-speaking background and subject to an employer-sponsored visa – importance of deterrence – deliberate breaches – no contrition or remorse shown by the Second Respondent – consideration of whether a Second Respondent should personally pay compensation – First Respondent in liquidation – penalties and compensation to be paid by the Second Respondent.
Fair Work Act 2009 (Cth), ss.545, 546, 547, 550, 716
 (1) Pursuant to section 545(1) of the Fair Act 2009 (Cth) (‘Act’) the Second Respondent, Dr Ari Masters (‘Dr Masters’), pay to the Applicant $32,889.98

Butlin v ACA Home Improvements Pty Ltd & Anor [2019] FCCA 2145
 INDUSTRIAL LAW – Contravention of s.358 of the Fair Work Act 2009 – accessorial liability established – what penalty to impose on the First and Second Respondent – whether compensation be paid to the Applicant for non-economic loss – compensation awarded to the Applicant for economic loss.

Fair Work Ombudsman v Eagle Tours Pty Limited [2019] FCCA 2099
INDUSTRIAL LAW – Breaches of a civil remedy provision of the Fair Work Act 2009 – imposition of pecuniary penalties – relevant considerations.
Fair Work Act 2009, ss.45, 539, 546, 557
(1) The Respondent pay a pecuniary penalty of $89,250 for its contraventions of the Fair Work Act 2009 declared by the Court on 29 May 2017.

Director of the Fair Work Building Industry Inspectorate v CFMEU & Ors [2019] FCCA 2160
INDUSTRIAL LAW – Adverse action against independent contractor – coercion – breach of enterprise agreement – unlawful industrial action – right of entry.

Legislation

Commonwealth
Bills

Fair Work Laws Amendment (Proper Use of Worker Benefits) Bill 2019

HR – Second reading debate 01 August 2019 –This Bill will amend the Fair Work (Registered Organisations) Act 2009 and the Fair Work Act 2009 to protect workers through greater governance and transparency of registered organisations and associated entities, in particular worker entitlement funds and gives effect to recommendations made by the Royal Commission into Trade Union Governance and Corruption (the Royal Commission).

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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