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Workplace Relations Monthly Update - January 2019

05 February 2019

#Workplace Relations & Safety

Workplace Relations Monthly Update - January 2019

In the media

Naturopaths seek millions in damages over allegations of bullying, underpayment and abuse
Two of the nation's biggest natural medicine retailers are facing a multi-million-dollar lawsuit in the Supreme Court of Queensland from a group of naturopaths who say they have been grossly underpaid and systematically bullied by a franchisee (30 January 2019).  More...

Sushi operator faces Court under new onus of proof laws
The Fair Work Ombudsman (FWO) has commenced the first legal action utilising new reverse onus of proof laws that require employers to disprove underpayment allegations in Court when they have failed to keep adequate time and wages records or issue pay slips (25 January 2019).  More... 

ATO hunts hidden income from Uber, Airbnb and other gig economy workers
The Federal Government is on the hunt for revenue lost due to potential under-reporting of income or outright tax avoidance by individuals earning money from sharing economy services (23 January 2019).  More... 

Construction workers contracted for security upgrade at Parliament House left unpaid
Subcontractors working on a multi-million-dollar security upgrade at Parliament House have been left hundreds of thousands of dollars out of pocket after the company that hired them went broke (22 January 2019).  More... 

$335,664 in penalties for underpaying workers at 7-Eleven outlet and restaurant
The Fair Work Ombudsman has secured $335,664 in penalties against a Melbourne company and two individuals for underpaying Chinese workers at a 7-Eleven franchise on William Street and a Japanese restaurant in Melbourne’s CBD (18 January 2019).  More... 

Union watchdog accidentally leaked secret emails from confidential whistleblower
Australia’s union watchdog accidentally leaked secret emails from a confidential whistleblower in an embarrassing mix-up last year. Internal documents show the Registered Organisations Commission, which investigates union malfeasance, received a tip-off about the conduct of a “senior official” last year (18 January 2018).  More...

Miners go from lowest to highest paid as landmark deal struck in NSW
Casual workers at a coal mine south-west of Sydney will be placed on permanent contracts after a "huge" agreement between the union and the colliery's operator (17 January 2019).  More... 

ABCC reaches major milestone
The Australian Building and Construction Commission has reached a major milestone assessing 5000 enterprise agreements for compliance with the Code for the Tendering and Performance of Building Work 2016 since its establishment in December 2016 (17 January 2019).  More...

Legal action against CFMMEU and two officials for allegedly threatening and abusive language
The CFMMEU and two of its officials face court action for allegedly acting in an aggressive and threatening manner during a site entry in Brisbane last year (15 January 2019).  More...

ABC admits it may have underpaid 2,500 casual staff for six years
The ABC has admitted it may have been underpaying about 2,500 casual staff over the past six years. The national broadcaster announced that it had begun a review of payments made to “flat-rate” casual staff including penalties, allowances and loadings (10 January 2019).  More...

Coles’ trolley collectors report
The final report on the Fair Work Ombudsman’s Enforceable Undertaking (EU) with Coles Supermarkets Australia Pty Ltd reveals a highly compliant network, with 94 per cent of the supermarket’s stores now using ‘in-house’ trolley collectors (9 January 2019).  More... 

$216k in penalties for sham contracting, underpayments
Two labour-hire companies that provided workers exclusively to a major home care company in Adelaide have been penalised a total of more than $200,000 over a sham contracting scheme that resulted in underpayments and significant hardship for workers (4 January 2019).  More... 

Published - reports, articles, papers

Awareness into action: a holistic approach to cultivating mentally healthy workplaces in Australia
Allianz: 23 January 2019
This report seeks to show that a mentally healthy workplace can only be achieved when it is a business priority. It brings together key research findings and other expert resources to put forward a holistic approach to help employers transform awareness into action.  More...

Department of Jobs and Small Business: Monthly Leading Indicator of Employment January 2019
The Department of Jobs and Small Business’ Monthly Leading Indicator of Employment (the Indicator) has fallen for the ninth consecutive month in January 2019, following a rise of eight consecutive months.  More...

In practice and courts

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. Submissions closed on 31 January 2019. The National Inquiry team will also be conducting public consultations in Sydney and Albury-Wodonga in the week commencing 11 February 2019.

AHRC Submissions - National Inquiry into Sexual Harassment in Australian Workplaces
The Commission is interested in hearing from individuals and organisations about their views and experiences relating to sexual harassment in Australian workplaces. Submissions are now open. The closing date for submissions was 31 January 2019.  More...

Cases

Li v KC Dental Pty Ltd & Ors [2019] FCCA 104
INDUSTRIAL LAW – Fair work – claims for workplace rights – claims for alleged contraventions of Fair Work Act 2009 – claims of accessorial liability – claims arose from performance of professional services as a dentist – oral agreement – whether independent contractor or employee – applicable principles – measure of control – respondents prepare applicant’s invoices – respondents unilaterally change manner of calculating applicant’s remuneration – applicant not an employee – claims under the Act dismissed – underpayment as independent contractor – applicant entitled to award of compensation for termination of independent contract without proper notice. 

Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCA 41
PRACTICE AND PROCEDURE – Where Federal Circuit Court held that appellants had contravened the Fair Work Act 2009 (Cth) and made declarations – where Federal Circuit Court made orders for and in relation to the hearing of the second stage of the trial on penalty and compensation – where appellants applied for stay of orders regarding the second stage of the trial – where appeal instituted in this Court against the judgment on liability – whether leave to appeal required – whether declarations in a “split trial” are interlocutory in nature for this purpose – consideration of undesirability of fragmenting proceedings – application dismissed.

Roberts and Secretary, Department of Jobs and Small Business [2019] AATA 64
EMPLOYMENT ENTITLEMENTS – Claim for an advance under Fair Entitlements Guarantee Act 2012 – whether Applicant an employee or an independent contractor – unpaid remuneration due to insolvency event – reasonable steps before the insolvency event – decision under review set aside.
Fair Entitlements Guarantee Act 2012 (Cth)

Australian Rail, Tram and Bus Industry Union v Laing O’Rourke Australia Construction Pty Ltd (C2018/5372) [2019] FWCFB 33
Fair Work Act 2009 s 604 - Appeal of decisions.
Australian Rail, Tram and Bus Industry Union (Appellant) filed an application pursuant to s 739 of the Fair Work Act 2009 (Cth) (Act) for the Fair Work Commission (Commission) to deal with a dispute with Laing O’Rourke Australia Construction Pty Ltd (Respondent) under the Laing O’Rourke Australia Construction Pty Ltd Rail Infrastructure – Rail Track & Associated Works Enterprise Agreement 2016-2019 New South Wales (Agreement). The dispute related to the payment of a Productivity/Site Allowance (Allowance) prescribed under clause 4.1 of Appendix C to the Agreement.

Swissport Australia Pty Ltd v Australian Municipal Administrative Clerical and Services Union (No 3) [2019] FCA 37
INDUSTRIAL LAW – Applicant seeks declaratory orders that split-shifts are not prohibited under Award and that employees are not entitled to overtime rates or recall penalties for split-shifts – where respondents assert that Court lacks jurisdiction – where clause in Award prohibits employers from requiring employees to work more than one shift in each 24 hours – where applicant contends that clause does not apply to part-time shift workers – where respondents contend that clause prohibits part-time shift workers from working split-shifts – employer cannot require employees to work split-shifts.
Acts Interpretation Act 1901 (Cth); Fair Work Act 2009 (Cth) ss 57, 185, 186, 187, 193, 226 and 562; Federal Court of Australia Act 1976 (Cth) s 21(1). 

Suddhoo v Woolworths Ltd [2019] FCCA 125
INDUSTRIAL LAW – General protections claim – interlocutory application for summary dismissal of respondent’s defence and summary judgment – adverse action – workplace right – workers compensation claim – whether person a partner in a business – whether person an employee – whether compensation for loss suffered because of a contravention.
PRACTICE AND PROCEDURE – Interlocutory application for summary judgment – explanation of no reasonable prospect of success – whether defence has reasonable prospects of success – reasonable prospects – application dismissed.
Fair Work Act 2009 (Cth), s.340. 

Fair Work Ombudsman v Xia Jing Qi Pty Ltd & Anor [2019] FCCA 84
INDUSTRIAL LAW – Penalty – contraventions of the Fair Work Act 2009 (Cth) – failure to pay minimum hourly rate – failure to pay casual loading – failure to pay penalty rates – failure to keep records – failure to issue pay slips – agreed statement of facts – consideration of matters relevant to penalty – pecuniary penalties imposed.
Evidence Act 1995 (Cth), s.191; Fair Work Act 2009 (Cth), ss.3, 23, 45, 535, 536, 546, 550, 557. 

Fair Work Ombudsman v Xia Jing Qi Pty Ltd & Anor [2019] FCCA 83
INDUSTRIAL LAW – Penalty – contraventions of the Fair Work Act 2009 (Cth) – failure to pay minimum hourly rate – failure to pay casual loading – failure to pay penalty rates – failure to make and keep records – false and misleading records – agreed statement of facts – consideration of matters relevant to penalty – pecuniary penalties imposed.
Fair Work Act 2009 (Cth), ss.45, 325, 535, 546, 550, 557, 712, 793; Fair Work Regulations 2009 (Cth), reg.3.33, 3.44. 

Fair Work Ombudsman v Spotless Services Australia Ltd [2019] FCA 9
INDUSTRIAL LAW - Application for declaration that the respondent breached s 119(1)(a) of the Fair Work Act 2009 (Cth) - where employer terminated the employment of employees after losing a customer contract for services - where employer did not pay redundancy payments to the terminated employees - where employer sought to rely on 'ordinary and customary turnover of labour' exception in s 119(1)(a) - whether terminations were due to 'ordinary and customary turnover of labour' - whether exception should be construed by reference to industrial law decisions prior to enactment of s 119(1)(a) - whether previous decision to the effect that previous case law was of limited value in statutory construction should not be followed - declaration of contravention of s 119(1)(a) by failing to pay redundancy upon termination of employment.
INDUSTRIAL LAW - Whether decision to dismiss employees gave rise to an obligation to notify Centrelink of the dismissals under s 530(1) of the Act - consideration of statutory construction of phrases 'reasons of economic, technological, structural or similar nature' and 'genuine operational reasons' - no contravention of s 530(1). 

Application by Metropolitan Fire and Emergency Services Board [2019] FWC 106
Fair Work Act 2009 s 185—Application for approval of a single-enterprise agreement.
Application by Metropolitan Fire and Emergency Services Board. Operational Staff Agreement 2016 - meaning of “discriminates” - whether agreement includes discriminatory terms - whether agreement includes objectionable terms - whether terms contravene s 55 - consideration of permitted matters - whether the agreement passes the better off overall test - not satisfied terms of agreement do not contravene s 55 - opportunity to provide undertakings given. 

Fair Work Ombudsman v Lovely Care Pty Ltd & Anor [2019] FCCA 25
INDUSTRIAL LAW – Director’s liability as accessory to corporate employer’s contravention of industrial laws and instruments – underpayment of employees.
INDUSTRIAL LAW – Ignorance of an award is a defence to an allegation of liability as an accessory to breaches of that award.
(1) The second respondent was involved in the first respondent’s contraventions of the Workplace Relations Act 1996 (“WR Act”) and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“FW (TPCA) Act”).  

Adamczak v Alsco Pty Ltd (No.4) [2019] FCCA 7
INDUSTRIAL LAW – Application for costs following dismissal of proceedings alleging adverse action in employment – application instituted against corporate employer and members of its management team – application against nominated managers ultimately withdrawn – was institution of proceedings against managers unreasonable – failure to accept Calderbank offer – whether refusal to accept offer amounts to an unreasonable act or omission – whether applicant’s conduct of the proceedings was unreasonable – matters to be considered.
(1) The applicant pay the respondent’s fees fixed in an amount of $35,000.00 (thirty five thousand dollars). 

Contacts:
Sydney
Stephen Trew, Managing Partner, Sydney
T: +61 2 8083 0439
E: stephen.trew@holdingredlich.com

Michael Selinger, Partner
T: +61 2 8083 0430
E: michael.selinger@holdingredlich.com

Melbourne
Charles Power, Partner
T: +61 3 9321 9942
E: charles.power@holdingredlich.com

Benjamin Marshall, Partner
T: +61 3 9321 9864
E: ben.marshall@holdingredlich.com

Brisbane
Rachel Drew, Partner
T: +61 7 3135 0617
E: rachel.drew@holdingredlich.com

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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