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Employment Law and Workplace Relations Monthly Update - August 2020

01 September 2020

#Workplace Relations & Safety

Employment Law and Workplace Relations Monthly Update - August 2020

In the media

Sunwater signs Enforceable Undertaking
Queensland water service provider Sunwater is back-paying employees more than $2 million and has entered into an Enforceable Undertaking (EU) with the Fair Work Ombudsman (28 August 2020).  More... 

Uniting signs Enforceable Undertaking
The operator of the Uniting aged care homes is back-paying employees more than $3.3 million and has entered into an Enforceable Undertaking with the Fair Work Ombudsman (12 August 2020).  More...

FWO acts to enforce compliance with EU
The Fair Work Ombudsman has commenced legal action to enforce the terms of an Enforceable Undertaking (EU) with the operator of a Sydney restaurant (03 August 2020).  More...

Horticulture sector update
The Fair Work Ombudsman has continued to monitor workplace compliance in the horticulture industry with inspectors assessing over 260 businesses (27 August 2020).  More...

Former operators of two Hello Juice outlets penalised
The Fair Work Ombudsman has secured $276,929 in penalties in the Federal Circuit Court against the former operators of two Hello Juice outlets in Victoria for deliberately exploiting employees (27 August 2020).  More... 

Over $230,000 recovered for Gami Chicken workers
The Fair Work Ombudsman has recovered $233,087 in unpaid wages for 353 workers following an investigation into 19 outlets of fried chicken chain Gami Chicken & Beer (21 August 2020).  More... 

Taiwanese restaurant operators in court
The Fair Work Ombudsman has commenced action in the Federal Court against operators of three popular Taiwanese restaurants for allegedly underpaying vulnerable workers and using false records (20 August 2020).  More...

Penalties for Sydney childcare operator
The Fair Work Ombudsman has secured $30,240 in penalties against a former Sydney childcare centre operator for failing to back-pay two migrant employees who worked for the centre under the guise of a volunteer arrangement (19 August 2020).  More...

Over $430,000 recovered for Geelong workers
The FWO has recovered $431,875 in wages for 487 underpaid workers after conducting surprise audits in the Geelong area as part of its series of regional university cities proactive investigations (14 August 2020).  More...

Non-compliance publication notice
The ABCC commenced legal action against Big Li Ceiling Pty Ltd in September 2018 following its repeated failure to cooperate with the ABCC during an audit of the company’s payment of employee wages and entitlements (20 August 2020).  More...

Update to JobKeeper rules will see more businesses and employees eligible to access support
On 14 August 2020, the government registered rules and provided more details about a previous JobKeeper announcement made on 7 August 2020 to extend the JobKeeper employment test date (and subsequent employee eligibility conditions) to 1 July 2020 for JobKeeper fortnights beginning on, or after 3 August 2020 (24 August 2020).  More...

Tyrone Construction Services penalised over unlawful picket at Leederville construction site
The Federal Court has penalised West Australian company Tyrone Construction Services Pty Ltd and its representative, Mr Alistair Adams, $96,000 over unlawful picketing of the Perth-based building site known as ‘Skypark’ in Leederville, Western Australia in 2019 (18 August 2020).  More...

Published - reports, articles, speeches 

ABCC Industry Update –- 12 August 2020 Edition
The August edition of Industry Update features the latest information from the ABCC, changes to the Building Award, Joinery Award and Mobile Crane Award, court outcomes and more.  More...

Department of Jobs and Small Business: Monthly Leading Indicator of Employment August 2020
The Monthly Leading Indicator of Employment (the Indicator) has risen for the first time in August 2020 after nine consecutive monthly falls. The Indicator’s rise this month—arising from rises in three (out of five) of the Indicator’s components (the Manufacturing Purchasing Managers Index for China, the US Yield Difference and the Consumer Sentiment Index).  More...

In practice and courts

FWC: Amended protected action ballot application form published
The Fair Work Commission has published an amended Form F34 – Application for a protected action ballot order, adding a new question asking how many employees are to be balloted (12 August 2020).  More...

Fair Work Ombudsman: High Court decision: accrual of personal/carer’s leave
On 13 August 2020, the High Court of Australia handed down a decision in Mondelez Australia Pty Ltd v AMWU & Ors [2020] HCA 29 about the method of accruing and taking paid personal/carer’s leave under the National Employment Standards.  More...

APH Senate Inquiry
Status: Accepting Submissions Date Referred: 13 November 2019 Submissions Reporting Date: 25 June 2020. On 15 June 2020, the Senate granted the committee a further extension to report by the last sitting day in June 2021.  More...

Cases

Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29
Appeal allowed.
Industrial law (Cth) – Where Fair Work Act 2009 (Cth) contains National Employment Standards (NES) – Where NES are minimum terms and conditions that apply to all national system employees – Where NES address paid personal/carer's leave – Where s 96(1) of Fair Work Act provides that employees entitled to "10 days" paid personal/carer's leave per year of service – Where s 96(2) provides that paid personal/carer's leave accrues progressively according to employees' ordinary hours of work – Where s 55(4) provides that enterprise agreement may only include terms not detrimental to employee when compared to NES – Where enterprise agreement provides that ordinary hours of work for employees are 36 hours per week – Where enterprise agreement provides that employees working 12‑hour shifts entitled to 96 hours paid personal/carer's leave per annum – Whether "day" in s 96(1) of Fair Work Act refers to one-tenth of equivalent of employee's ordinary hours of work in two‑week period (notional day) or portion of 24-hour period otherwise allotted to working (working day).
Words and phrases – "10 days", "day", "enterprise agreement", "fairness", "income protection", "minimum terms and conditions", "modern award", "National Employment Standards", "notional day", "ordinary hours of work", "paid personal/carer's leave", "working day", "working patterns", "working week".
Fair Work Act 2009 (Cth), ss 3, 55, 85, 87, 96, 97, 99, 100, 101, 102, 104, 106A, 106E, 147, 186, 193.
Workplace Relations Act 1996 (Cth), ss 246, 247, 249.

Construction, Forestry, Maritime, Mining and Energy Union v Melbourne Precast Concrete Nominees Pty Ltd (No 2) [2020] FCA 1215
INDUSTRIAL LAW – employment – where declarations made that employer and director of employer contravened ss 50, 340(1)(a) and 340(1)(b) of the Fair Work Act 2009 (Cth) by dismissing employee – whether employee should be reinstated to former position – whether employer should be ordered to pay compensation for employee’s lost earnings for period between dismissal and reinstatement
Fair Work Act 2009 (Cth) ss 340, 340(1)(a), 340(1)(b), 545(1), 545(2)(b), 545(2)(c); Occupational Health and Safety Act 2004 (Vic); Federal Court Rules 2011 (Cth) r 30.21(1)(b)(i)
The first respondent reinstate the second applicant to the position he held immediately prior to 20 March 2020 by no later than 7 days of these orders being made. he first respondent pay the second applicant compensation for economic loss within 28 days of these orders being made as follows: a) $ 23,631.15 in relation to lost wages; and (b) $ 3,716.03 in relation to unpaid superannuation. 

Fair Work Ombudsman v Austrend International Pty Ltd (No 2) [2020] FCA 1193
INDUSTRIAL LAW - contravention of s 351 of the Fair Work Act 2009 (Cth) - adverse action taken by employer because of employee's sex and pregnancy - refusal to allow employee to return to work after period of parental leave - where admissions made by respondents - single contravention - appropriate form and content of declaration - where employer has met financial loss of employee - whether employer should pay compensation to employee for non-economic loss - relevant factors in assessment of pecuniary penalties - relevance of legal costs incurred by employer - relevance of adverse publicity from media release published by Fair Work Ombudsman - whether media release accurate and fair
Fair Work Act 2009 (Cth) ss 14, 65, 342, 351, 360, 361, 531, 550, 539, 545, 546, 701, Division 2, Part 3‑1, Part 5‑2 

Gutierrez v Nguyen [2020] FCCA 2355
INDUSTRIAL LAW – Under payment of wages – sham contracting arrangements.
Fair Work Act 2009 (Cth), ss.357, 545; Cleaning Services Award 2010.
(1) The Respondent pay the Applicant the sum of $7,480.70 being unpaid wages in the sum of $4,109.59 and superannuation in the sum of $3,371.11. 

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Inner City South State Secondary College Case) [2020] FCA 1147
EMPLOYMENT AND INDUSTRIAL RELATIONS – application for urgent interlocutory injunctive relief – whether the applicant has a prima facie case – whether to grant interlocutory injunctive relief is the balance of convenience – alleged workplace bullying by head contractor’s project manager of subcontractor’s employees – whether imminent threat – whether consultation as provided for in enterprise agreements had occurred – investigation into alleged bullying in progress under State Work Health and Safety Legislation in progress – alleged unlawful coercion of head contractor to redeploy project manager – Building and Construction Industry (Improving Productivity) Act 2016 (Cth) s 46 and s 52 – project for completion by start of first term 2021 of major State educational facility – role of public interest in balance of convenience – role of trade unions in relation to accident prevention – need for unions to follow processes in enterprise agreements re workplace health and safety threats – interlocutory injunctive relief to prevent coercion by collective withdrawal of labour granted
PRACTICE AND PROCEDURE – where the national office of the first respondent, the Construction, Forestry, Maritime, Mining and Energy Union (the Union) is located in Melbourne which is currently subject to “stage 4” public health restrictions – whether personal service in accordance with r 41.07 of the Federal Court Rules 2011 (Cth) may be dispensed with in respect of the Union

Legislation

Commonwealth

Act Compilation

Paid Parental Leave Act 2010
18/08/2020 - Act No. 104 of 2010 as amended

Regulations

Coronavirus Economic Response Package (Payments and Benefits) Amendment Rules (No. 7) 2020 
14 August 2020 - This instrument provides a new employment reference date of 1 July 2020 for employees to be eligible for the JobKeeper scheme.
NSW

Regulations and other miscellaneous instruments

Industrial Relations (General) Regulation 2020
(2020-509) — published LW 28 August 2020

Bills introduced Non-Government – 03 August 2020

Anti-Discrimination Amendment (Sex Workers) Bill 2020

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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