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Employment Law and Workplace Relations Monthly Update - February 2019

05 March 2019

#Workplace Relations & Safety

Employment Law and Workplace Relations Monthly Update - February 2019

In the media

ABCC launches legal action against AMWU and two of its organisers for alleged threat on Melbourne site
The ABCC has launched proceedings against the AMWU and two of its organisers after they allegedly threatened to shut down a Melbourne site unless the employer hired several workers (26 February 2019).  More...

Court imposes penalties on the CFMMEU and Hutchinson Builders for a ‘deliberate’ CFMMEU attempt to ‘thwart’ government officers
The Federal Circuit Court has imposed total penalties of $35,700 against the CFMMEU and its representative Mark O’Brien and former official Michael Myles, after workers at a South Brisbane apartment site downed their tools in response to a visit by Queensland Government officers (25 February 2019).  More...

Gender pay gap paying off
The latest figures from the Australian Bureau of Statistics (ABS) relating to the gender pay gap show it has reached an historic low of 14.2 per cent (25 February 2019).  More...

Fair Work Commission helping parties to avoid common errors in agreement making
The Fair Work Commission has published a guide to help employers and employees lodge compliant applications for enterprise agreements, including how to avoid common problems that delay the approval process (20 February 2019).  More...

ABCC takes Victorian builder to court for allegedly terminating worker who asked about his pay
The ABCC has commenced proceedings against a Victorian building company, SWAT Building Systems, and its director, Ilias Lymberatos. The ABCC alleges that a worker was underpaid more than $22,500 and had his employment terminated by his employer when he requested his back pay (18 February 2019).  More...

Modernising right of entry to protect Australian workers
The Coalition Government will consult on proposed changes to right of entry rules that aim to modernise right of entry permits and stop militant union officials improperly accessing Australia’s construction sites (15 February 2019).  More...

Former Caltex franchisee penalised $77,000
The Fair Work Ombudsman has secured total penalties of $77,708 against a former Sydney Caltex franchisee who falsified wage records for migrant workers (15 February 2019).  More... 

Giving choice and flexibility to casual workers
The Coalition Government has introduced legislation to the Parliament to enable regular casual employees to request to move to full-time or part-time employment, giving Australians more opportunities to work in the way that best suits them and their families (13 February 2019).  More...

Expanded legal advice service for small business employers
The Coalition Government is supporting small and family businesses and Australian workers to navigate Australia’s industrial relations law with even greater access to free legal advice (11 February 2019).  More...

ABCC launches case against CFMMEU over threats and intimidation at Palmerston Police Station site
The ABCC has commenced proceedings against the CFMMEU and six of its Queensland-based officials alleging they intimidated NT Worksafe Inspectors and demanded that the head contractor shut down construction at the Palmerston Police Station site (4 February 2019).  More...

Published - reports, articles, speeches

Explainer: Workplace monitoring and surveillance
Alexandra Mateescu, Aiha Nguyen; Data & Society Research Institute: 06 February 2019
This explainer identifies four current trends in workplace monitoring and surveillance: prediction and flagging tools; biometrics and health data; remote monitoring and time-tracking; and gamification and algorithmic management. 

In practice and courts

FWC: Making compliant agreement applications – new guide published
The guide gives a detailed description of more than 20 frequently encountered errors in agreement applications and identifies steps to avoid them as well as providing an update on the agreement approval process (20 February 2019).  More...

FWO: Cultural & religious holidays: What employers and employees need to know
Lots of religious and cultural holidays observed in Australia aren't recognised public holidays. This means that your employees may wish to take time off work to celebrate these holidays. Visit the Department of Home Affairs Harmony Day website to see their 2019 calendar of cultural and religious dates.

FWO: Flexible working arrangements can benefit both employers and employees
Employees have the right to request flexible working arrangements if they have: worked for an employer for 12 months or more or caring responsibilities for a child who is school aged or younger.  More...

National inquiry into sexual harassment in Australian workplaces
A national inquiry is being held into sexual harassment in Australian workplaces. The focus of the national inquiry is on the nature and prevalence of sexual harassment in Australian workplaces, the drivers of this harassment and measures to address sexual harassment in Australian workplaces. To assist interested parties to develop submissions to the inquiry, the Australian Human Rights Commission has also prepared a Conversation toolkit


Fair Work Ombudsman v Priority Matters Pty Ltd & Anor and Fair Work Ombudsman v Superlattice Solar Pty Ltd & Anor and Fair Work Ombudsman v Geneasys Pty Ltd (in liq) & Anor and Fair Work Ombudsman v Silverbrook & Anor and Fair Work Ombudsman v Mpowa Pty Ltd & Anor (No 4) [2019] FCCA 56
INDUSTRIAL LAW – Fair work – accessorial liability for established breaches of the Fair Work Act 2009 (Cth) by corporations – individuals found not to be personally liable – matter remitted on appeal for further hearing on that issue – consideration of factors bearing on accessorial liability – liability established.
Fair Work Act 2009 (Cth), ss.44, 45, 50, 90, 99, 116, 117, 119, 293, 323, 324, 328, 539, 542, 545, 544, 546, 547, 550, 570, 687, 701. 

Milam v University of Melbourne [2019] FCA 171
INDUSTRIAL LAW – Investigation into the Applicant – whether investigation in compliance with Enterprise Agreement – whether s 50 of the Fair Work Act 2009 (Cth) applies – whether conduct misconduct or serious misconduct – injunction granted.

Minister for Industrial Relations for the State of Victoria v Esso Australia Pty Ltd [2019] FCAFC 26
INDUSTRIAL LAW – Application for judicial review of decision of the Full Bench of the Fair Work Commission (FWC) to revoke an order make under s 424 of the Fair Work Act 2009 (Cth) (FW Act) (the s 424 Order) terminating protected industrial action – revocation order made after the High Court had reversed a judgment of the Full Court of the Federal Court holding that industrial action was protected – section 424 Order made before that reversal – whether the FWC had failed to recognise that orders of the Full Court were valid until set aside – whether the FWC committed jurisdictional error in considering that a workplace determination under s 266 should not be made following the taking of unprotected industrial action – whether the FWC committed jurisdictional error by exercising their discretion under s 603 of the FW Act to revoke the s 424 Order when the FW Act allows for the correction of errors in orders by an appeal under s 604 of the FW Act – whether the decision of the FWC was legally unreasonable – whether the FWC denied the Minister procedural fairness – no jurisdictional error by the FWC – application dismissed.

Rixton & Anor v Wantirna Village Services Association Inc [2019] FCCA 312
CORPORATIONS LAW – Associated entity – control – in fact and law – interlocking, complex framework of contracts – where controlling entity chose not to exercise in a real and practical sense whatever contractual rights it possessed – s 50AA(2) of Corporations Act 2001 elements not met.
INDUSTRIAL LAW – Whether employer breached terms and conditions of employment – small business employer – no contravention of s 44(1) of Fair Work Act 2009 – Nurses Award – uniform allowance and laundry allowance – no obligation on employer to pay where employee was not required to wear or launder a uniform in the course of employment – windfall gain – redundancy pay – small business employer exempt by reason of s 121(1)(b) of Fair Work Act 2009.

Fair Work Ombudsman v Abdul Wahid & Sons Pty Ltd & Anor [2019] FCCA 297
INDUSTRIAL LAW – Assessment of pecuniary penalties for admitted contraventions of civil remedy provisions of the Fair Work Act 2009 (Cth) and of the Fair Work Regulations 2009 (Cth) – pecuniary penalties imposed. Fair Work Act 2009 (Cth), ss.12, 436(1), 550, 535, 536, 539, 546, 557, 712;  Fair Work Regulations 2009 (Cth), reg,3.33, 3.44, 3.46, 4.01A. 

BGC POS Pty Ltd v Construction, Forestry, Maritime, Mining & Energy Union [2019] FCA 74
INDUSTRIAL LAW - Appeal against decision by the Federal Circuit Court that appellants had contravened s 502 of the Fair Work Act 2009 (Cth) by intentionally hindering or obstructing union officials in the exercise of their rights under Part 3-4 - where union officials exercising rights under s 484 to enter to premises to hold discussions with workers - whether there was a failure to agree under s 492(2) - consideration of the meaning of 'intentionally hinder or obstruct' - appeal dismissed. 

BlueScope Steel Limited v The Australian Workers' Union [2019] FCA 182
INDUSTRIAL LAW – Pecuniary penalties and compensation for contraventions of ss 417 and 475(2) of the Fair Work Act 2009 (Cth) – where employee organisation covered by an enterprise agreement had engaged in unprotected industrial action – where parties have agreed on the amount of the penalties and compensation – where general deterrence a relevant consideration in fixing civil penalty – where declarations relating to contraventions of legislative provision made – where agreed penalty accepted by the Court.
Crimes Act 1914 (Cth) s 4AA(1); Fair Work Act 2009 (Cth) ss 12, 417, 474, 475(2), 539(2), 545, 546, 546(1), 546(2), 546(3). 

Fair Work Ombudsman v Ital One Holdings Pty Ltd & Anor [2019] FCCA 187
INDUSTRIAL LAW – Declarations as to various contraventions of the Fair Work Act 2009 and the Restaurant Industry Award 2010 – penalties – objections to evidence – impact of a media release issued by the applicant prior to the determination of liability – whether ancillary orders should be made for an audit of the respondents’ payment system – whether injunctions should be granted restraining the respondents from further breaches of the Act or Award.

The FWC Bulletin
This weekly update lists current FWC decisions:
Volume 9/19 28 February 2019
Volume 8/19 21 February 2019
Volume 7/19 14 February 2019
Volume 6/19 7 February 2019




Fair Work (State Declarations — employer not to be national system employer) Endorsement 2019 (No.1)
14/02/2019 - This instrument endorses a declaration by the New South Wales Minister for Industrial Relations that the Far North West Joint Organisation and the Far South West Joint Organisation are not national system employers for the purposes of the Fair Work Act 2009.


Fair Work Amendment (Right to Request Casual Conversion) Bill 2019
Introduced HR 13/02/2019 – The Fair Work Amendment (Right to Request Casual Conversion) Bill 2019 (the Bill) would amend the Fair Work Act 2009 (the Act) to insert into the National Employment Standards (NES) a new right for eligible employees to request to convert to full-time or part-time employment. 

Stephen Trew, Managing Partner, Sydney
T: +61 2 8083 0439

Michael Selinger, Partner
T: +61 2 8083 0430

Charles Power, Partner
T: +61 3 9321 9942

Benjamin Marshall, Partner
T: +61 3 9321 9864

Rachel Drew, Partner
T: +61 7 3135 0617

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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