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Employment Law and Workplace Relations Monthly Update - February 2020

04 March 2020

#Workplace Relations & Safety

Employment Law and Workplace Relations Monthly Update - February 2020

In the media

Trucking business faces court
The Fair Work Ombudsman has commenced legal action in the Federal Circuit Court against Trucking Services Pty Ltd, a road transport business based on the Gold Coast (27 February 2020).  More... 

Super amnesty extension a chance for small businesses to catch up
The Australian Small Business and Family Enterprise Ombudsman Kate Carnell has welcomed Federal Government legislation that encourages employers to catch-up on paying superannuation entitlements to staff (26 February 2020).  More...

Adelaide restaurant faces court
The Fair Work Ombudsman has commenced legal action in the Federal Circuit Court against the operators of “Gyoza Gyoza”, a restaurant specialising in Japanese cuisine in the Adelaide CBD (25 February 2020).  More...

Private sector trumps PS in wages growth
New figures from the Australian Bureau of Statistics (ABS) have revealed that for the first time since 2012 private sector wages in Australia in the last quarter of 2019 grew at a faster rate than in the public sector (20 February 2020).  More...

Exploitative employers to face jail
New legislation is to be introduced to criminalise the actions of companies that exploit and underpay their workers. Announced by the Attorney-General and Minister for Industrial Relations, the new legislation could lead to significant jail terms and fines for the most serious forms of deliberate worker exploitation and wage underpayments (20 February 2020).  More...

Employers 'go as close to the line as possible': Target staff the latest in underpayment 'epidemic'
A leading employment lawyer says big companies are getting caught out for pushing the boundaries of minimum legal payments, with Target the latest business to admit underpaying staff (19 February 2020).  More...

Sydney care facility operators penalised
The Fair Work Ombudsman has secured penalties totalling $41,580 against the operators of the Elizabeth Cottage respite and care facility in Peakhurst, Sydney, for deliberately underpaying two disability support workers $84,450 (17 February 2020).  More... 

Union’s appeal fails in BKH matter in NSW
The Full Federal Court has largely dismissed the CFMMEU’s appeal against penalties handed down in the October 2018 BKH judgment (14 February 2020).  More...

Ageism rears its head as recruiters told to discard older job applicants
Many unemployed and underemployed older workers are struggling to find roles, and recruiters say that is partly because ageism is alive and well when companies look for new staff (07 February 2020).  More...

Newcastle restaurant owner faces court
The Fair Work Ombudsman has commenced legal action in the Federal Circuit Court against the operator of a Thai restaurant in Newcastle (07 February 2020).  More... 

Loggers return from fighting fires to find they have no jobs
About 10 contracts to harvest timber in East Gippsland are voided by the Government — leaving 90 workers who fought the latest summer fires without short-term jobs (06 February 2020).  More...

Former Victorian hotel operator faces court
The Fair Work Ombudsman has commenced legal action in the Federal Circuit Court against the former operator of the Farmers Arms Hotel Newry in Victoria (04 February 2020).  More... 

Restaurant charging almost $300 for a meal owes staff millions
Leaked documents reveal Dinner by Heston, which operates out of Melbourne's Crown Resort, underpaid its staff by more than $4 million (04 February 2020).  More...

Published - reports, articles, speeches 

ABCC Industry Update - February 2020 edition
Welcome to the February 2020 edition of Industry Update, our quarterly online newsletter. Industry Update provides updates on the latest activities of the ABCC, industry trends, and emerging issues (13 February 2020).  More...

Improving protections of employees’ wages and entitlements: further strengthening the civil compliance and enforcement framework
Attorney-General's Department (Australia), Government of Australia: The Australian government is committed to an industrial relations system that balances the needs of both employees and employers, including those engaged in small business. This paper seeks input from the community about the operation of the current compliance and enforcement framework (18 February 2020).  More...

Department of Jobs and Small Business: Monthly Leading Indicator of Employment January 2020
The Monthly Leading Indicator of Employment (the Indicator) has risen for the fifth consecutive month in February 2020, after sixteen consecutive monthly falls, primarily attributed to rises in the US Yield Difference and the NAB Forward Orders Index.  More...

In practice and courts

FWC: Enterprise agreements update
The Fair Work Commission issued an Enterprise agreements update. It provides information on recent improvements in the Commission's timeliness in dealing with enterprise agreement applications and outlines some current initiatives (24 February 2020).  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 on the Commission's website (14 February 2020).  More...

FWC: 30 modern awards extensively varied
The technical and drafting matters for the first tranche of 30 awards have been completed. The varied awards were published on 25 November 2019 and commenced operation on 4 February 2020. To find out which awards have been varied, and to access the new versions of the awards, go to the Modern awards list (04 February 2020).  More...

FairWork: New rules for annualised wage arrangements
On 4 July 2019, the Fair Work Commission (the Commission) handed down a decision about annualised wage arrangements in several awards. These arrangements are also known as annual salaries. The decision inserts new rules about annual salaries in several awards. They take effect from the first pay period starting on or after 1 March 2020 (21 February 2020).  More...

FairWork: Coronavirus and Australian workplace laws
Find out about your workplace entitlements and obligations if you're affected by the outbreak of coronavirus. Please visit the Australian Government Department of Health website for the latest information on the virus, including requirements and conditions for quarantine periods (04 February 2020).  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 The closing date for submissions is 3 April 2020.  More...

FWC: For comment: proposed amendments to the Fair Work
The Fair Work Commission is considering making some changes to the Fair Work Commission Rules 2013 and is seeking public comment. To find out more go to Proposed amendments to the Fair Work Commission Rules 2013. Any comments on the proposed changes closed on 7 February 2020.  More...

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

Attorney General: Consultation
Cooperative Workplaces – How can Australia capture productivity improvements from more harmonious workplace relations. Submissions close on 28 February 2020.  More...


Australian Federation of Air Pilots v Geraldton Air Charter Pty Ltd [2020] FCCA 380
INDUSTRIAL LAW – Penalty – admitted contraventions – failure to provide rosters in accordance with the applicable award – failure to provide Fair Work Information Statement – factors for consideration – penalty imposed.
Air Pilots Award 2010, cl.25; Crimes Act 1914 (Cth), s.4AA(1); Crimes Legislation Amendment (Penalty Unit) Act 2015; Fair Work Act 2009 (Cth), ss.3, 12, 44(1), 45, 125, 539, 546, 557, 557A

PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15
INDUSTRIAL LAW – adverse action – appeal and cross-appeal from two decisions of the Federal Circuit Court of Australia – whether respondent was dismissed in contravention of s 340(1) of the Fair Work Act 2009 (Cth) (the “FW Act”) – whether respondent was “able to make” a complaint or inquiry – whether penalties imposed were manifestly excessive – appeal and cross-appeal both upheld in part
CONTRACTS – employment contract – cross appeal against finding that contract of employment was not breached – whether absence from duty triggered an entitlement to summarily terminate – whether employee was absent for a valid reason – whether absence was waived or condoned, or otherwise consented to – whether employee was entitled to damages for breach of contract – no breach of contract – cross-appeal dismissed in part
COMPENSATION – whether statutory compensation awarded was sufficient or excessive – whether judge below erred in awarding compensation in an amount equal to a prior offer that was rejected – whether compensation should be assessed as the value of the remaining contract period – cross-appeal dismissed.
Australian Consumer Law; Corporations Act 2001 (Cth) s 1317AA
Crimes Act 1914 (Cth) s 4AA; Explanatory Memorandum, Fair Work Bill 2008 (Cth)
Fair Work Act 2009 (Cth) Pts 2-2, 3-1, ss 12, 44, 90, 340, 341, 342, 360, 361, 539, 542, 543, 545, 546, 550, 570, 793; Workplace Relations Act 1996 (Cth)

Australian Licenced Aircraft Engineers Association v Qantas Airways Limited [2020] FCA 166
INDUSTRIAL LAW – applicants seek declarations of contraventions of various provisions of the Licensed Aircraft Engineers (Qantas Airways Limited) Workplace Determination 2010, the Licensed Aircraft Engineers (Qantas Airways Limited) Enterprise Agreement 10 and employment contracts – construction of industrial instruments – whether the agreement for alternative work schedule was an agreement for the purposes of clause 24.9.2 of the industrial instruments – whether employees “affected in the workplace” includes employees not covered by the industrial instruments – construction of cll 24.4.2 and 24.9.2– alleged failure by the respondent to pay applicants double time for work in “excess of ordinary working hours” – whether respondent is liable for travel for duty allowance or accommodation where applicants were “required to travel for duty” away from their “home base” within the meaning of cll 40.1 and 40.2 – whether respondent contravened ss 50 and 280 Fair Work Act 2009 (Cth) – contravention of civil penalty provision – whether respondent contravened s 343 Fair Work Act 2009 (Cth)
Fair Work Act 2009 (Cth) ss 12, 34, 38, 50, 280, 343

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The BKH Contractors Appeal) [2020] FCAFC 9
INDUSTRIAL LAW – appeal from liability and penalty decisions of a judge of the Federal Court of Australia – quantification of penalties – identification of contract for services and prejudice for adverse action arising from a threat to take industrial action – application of the course of conduct principle to industrial action on consecutive days –– application of s 556 to separate contraventions – totality and whether a judge’s statement that it has been considered should be accepted – parity in relation to a respondent who is in a markedly different position to other respondents – whether loss and cost must be quantifiable on the evidence before it can be taken into account
Fair Work Act 2009 (Cth) s 340, s 342, s 343, s 494, s 499, s 500, s 556, s 557, s 793
Federal Court Act 1976 (Cth) s 23
Workplace Relations Act 1996 (Cth) s 298K

Teekay Shipping (Australia) Pty Ltd v Auld [2020] FCAFC 19
EMPLOYMENT AND INDUSTRIAL RELATIONS – apparent referral of question by President to a Full Bench of the Fair Work Commission – application for constitutional writs and related relief – where the Full Bench considered a supplementary question that was not formally referred to it – where the Full Bench issued reasons for a decision but failed to issue a decision answering either of the questions apparently posed to it
Held: constitutional writ of mandamus issued requiring it to answer the question or questions referred to it
Fair Work Act 2009 (Cth) ss 589, 615, 615A

Fair Work Ombudsman v Lovely Care Pty Ltd & Anor (No.2) [2020] FCCA 257
INDUSTRIAL LAW – Breaches of civil remedy provisions of the Workplace Relations Act 1996, the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and the Fair Work Act 2009 – imposition of pecuniary penalties – relevant considerations – course of conduct principle – grouping principle.
Workplace Relations Act 1996, ss.182, 185, 719, 728
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, item 5 and item 16 of sch.16
Fair Work Act 2009, ss.45, 539, 546, 550, 556, 557; Crimes Act 1914, s.4AA

Nasirian v Sarvastani [2020] FCCA 355
INDUSTRIAL LAW – Default judgment – multiple contraventions of the relevant award – minimum rates of pay – failure to pay entitlements – failure to remit superannuation – penalty payable to the Applicant.
Fair Work Act 2009 (Cth), ss.44.45, 90(2), 117(2), 340, 545, 545(1), 546(1), 546(3)(c), 547
Federal Circuit Court Rules 2001 (Cth), rr.13.03B(2)(c), 16.05(2)(a)
and consequently contravened section 44 of the Act.
(c) the Respondent contravened section 340 of the Act by dismissing the Applicant because or for reasons including that the Applicant exercised a workplace right, as set out at in [10]-[26] of the Statement of Claim.
(d) by reason of the Respondent’s contraventions of section 45 of the Act, the Applicant has suffered a loss of wages in the amount of $35,196.49.

Boyson v Centre Court Care Pty Ltd & Anor [2020] FCCA 229
INDUSTRIAL LAW – FAIR WORK – Underpayments of various types – failure to provide payslips – adverse action for prohibited reasons – constructive dismissal – altering applicant’s position to his prejudice – involvement of director – penalties.
Corporations Act 2001, ss.109X, 146A; Fair Work Act 2009 (Cth), ss.44, 45, 87, 90(2), 116, 323, 324, 340(1), 341(1), 342(1), 360, 361(1), 386(1), 536, 539, 545, 546, 547, 550, 557, 793(1)

Fair Work Ombudsman v Australian Workers' Union [2020] FCA 60
INDUSTRIAL LAW – adverse action – pecuniary penalties – agreed contraventions – charges laid by employee organisation against members for failing to engage in industrial action – failure to withdraw charges for prolonged period – where penalty unit increased during the course of contravening conduct – civil double jeopardy – application of “course of conduct” and “totality” principles – appropriateness of declaratory relief – no declaratory relief
Crimes Act 1914 (Cth) s 4AA; Crimes Legislation Amendment (Penalty Unit) Act 2015 (Cth) Sch 1
Fair Work (Registered Organisations) Act 2009 (Cth); Fair Work Act 2009 (Cth) Pts 2-4, 3-1, ss 12, 336, 340, 341, 342, 346, 347, 363, 408, 539, 545, 546, 556, 557, 570, 793

DP World Sydney Limited v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 87
INDUSTRIAL LAW – interlocutory application for injunction to restrain industrial action – whether the industrial action sought to be restrained is to be conducted for the purpose of supporting or advancing claims that are only about, or are reasonably believed to only be about, permitted matters – injunction granted until hearing commencing on 12 March 2020
Fair Work Act 2009 (Cth) s 19, s 172(1), s 342(1), s 346(b), s 347(f), s 348, s 408, s 409(1)(a)

Kiropoulos v Link Group [2020] FCCA 205
INDUSTRIAL LAW – SMALL CLAIMS – Underpayment of annual leave and long service leave entitlements – whether employee accrues leave entitlements while receiving workers’ compensation payments pursuant to the Accident Compensation Act 1985 (Vic) – application of section 130 of the Fair Work Act 2009 (Cth) – application allowed. Accident Compensation Act 1985 (Vic), ss.97, 114(2D); Fair Work Act 2009 (Cth), s.130



Paid Parental Leave Amendment (Flexibility Measures) Bill 2020
Senate 25/02/2020 - Amends the: Paid Parental Leave Act 2010 to implement changes to the paid parental leave scheme to enable eligible claimants to claim up to 30 days of parental leave pay (PLP) within 24 months of the birth or adoption of a child, in addition to 12 weeks of PLP within 12 months of the child's birth or adoption; and A New Tax System (Family Assistance) Act 1999 and A New Tax System (Family Assistance) (Administration) Act 1999 to make consequential amendments.  

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