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Employment Law and Workplace Relations Monthly Update - January 2020

05 February 2020

#Workplace Relations & Safety

Employment Law and Workplace Relations Monthly Update - January 2020

In the media

TWU calls for urgent action following coronavirus Tigerair flight case
The Transport Workers Union is calling on the Federal Government to urgently outline its instructions to airlines and airports regarding precautions and protections on the coronavirus for frontline airport workers (30 January 2020).  More...

Former Gold Coast restaurant operator faces court
The Fair Work Ombudsman has commenced legal action in the Federal Circuit Court against the former operator of Kokum, an Indian restaurant on the Gold Coast (24 January 2020).  More...   

Melbourne rooftop bar faces court
The Fair Work Ombudsman has commenced legal action in the Federal Circuit Court against the operators of a Melbourne CBD rooftop cocktail bar (24 January 2020).   More... 

DP World aggressively escalates waterfront dispute in 'attack on workers rights'
Wharfies employed at DP World in Melbourne, Sydney, Brisbane and Fremantle have had approved leave cancelled by the huge global stevedoring operator, with the maritime union describing the move as an unlawful and aggressive attack on workers’ rights (21 January 2020).  More... 

North Parramatta pizza outlet faces court
The Fair Work Ombudsman has commenced legal action in the Federal Circuit Court against a pizza outlet in western Sydney (17 January 2020).  More... 

Gladstone port workers protest against 'sham contracting'
The exclusive provider of towage services at the Port of Gladstone has been accused by the Maritime Workers Union of using sham contracting to undermine wages, conditions and safety after contracting out a tug delivery job traditionally undertaken by local workers (17 January 2020).  More...

Restaurant penalised for pregnancy discrimination
The Fair Work Ombudsman has secured $44,800 in penalties against the company that operates Coco’s Restaurant in South Perth and a company director for taking adverse action against a pregnant waitress by cancelling and reducing her shifts (13 January 2020).  More... 

FWO alleges stadium cleaners underpaid
A late-night visit by Fair Work Inspectors to Etihad Stadium (now Marvel Stadium) after a 2017 AFL match has led to legal action against the then Etihad Stadium’s principal cleaning contractor, a sub-contractor and two individual directors (13 January 2020).  More... 

Perth franchisee faces tenfold increase in max penalties
The Fair Work Ombudsman has commenced its first legal action in Western Australia under the ‘serious contraventions’ provisions of the Protecting Vulnerable Workers laws, alleging a former Han’s Café franchisee in Perth underpaid vulnerable workers despite having previously faced Court for similar conduct (07 January 2020).  More... 

Transport company faces court for alleged driver underpayments
The FWO has commenced legal action against a Queensland transport company for allegedly misclassifying four drivers as independent contractors, when they were in fact employees, and underpaying them $63,803 (06 January 2020).  More... 

Published - reports, articles, speeches 

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 fourth consecutive month in January 2020, after sixteen consecutive monthly falls.  More... 

In practice and courts

Fair Work Ombudsman: Bushfires across Australia
Bushfires across Australia are affecting many individuals and workplaces across the country. Find information about leave entitlements, pay during stand down, where to go for information about workplace health and safety, and emergency and useful contacts (updated 10 January 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 should be emailed here by close of business on 7 February 2020.   More... 

FWC: Unfair dismissals benchbook updated
The Fair Work Commission has published an updated version of the Unfair dismissals benchbook. The updated version reflects recent case law and rules changes, including information on labour hire workers, notification of dismissal, transferring employees, loss of trust and confidence, application fees and false or misleading evidence (15 January 2020).   More... 

FWC: 31 modern awards extensively varied
Starting in 2020, the Fair Work Commission will extensively vary existing awards as a result of the 4 yearly review of modern awards. The technical and drafting matters for the first group of 31 awards has been completed. The varied awards have been issued and will commence operation on 4 February 2020.  More... 

APH  Senate Inquiry
Unlawful underpayment of employees' remuneration
Status: Accepting Submissions Date Referred: 13 November 2019
Submissions Close: 14 February 2020 
Reporting Date: 25 June 2020

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

Federal Court of Australia: Practice Directions
Employment and Industrial Relations Practice Note
Federal Court of Australia, E&IR-1 of 2019 – Issued 20 December 2019, effective from this date


Pezzimenti v Rotary International (No.2) [2020] FCCA 95
INDUSTRIAL LAW – Fair Work – adverse action – consideration of penalty and costs.
Crimes Act 1914 (Cth), s.14; Fair Work Act 2009 (Cth), ss.340, 539, 546, 570
Federal Circuit Court Rules 2001 (Cth) Pursuant to s.546 of the Fair Work Act 2009 (Cth), the respondent shall pay to the applicant a penalty in the sum of $50,000.

Fair Work Ombudsman v Sinpek Pty Ltd (In Liquidation) & Ors (No.3) [2020] FCCA 88
INDUSTRIAL LAW  – Whether the second and third respondents were knowingly involved in the contraventions by the first respondent employer now in liquidation – Modern Award – retail manager – console operators – Level 4 contraventions minimum hourly rates – loading rates – Saturday rates – Sunday rates – holiday rates – overtime rates – annual leave – termination minimum period of notice – unreasonable spending requirement to pay for theft of fuel and tax refund – failure to keep records – failure to provide pay slips – knowing involvement established by second and third respondents – compensation – declarations made.
Fair Work Act 2009 (Cth), ss.44, 45, 90, 99,117, 325, 535, 536, 539, 550; Fair Work Regulations 2009 (Cth), cl.3.36 

Newton v Australian Postal Corporation (No 2) [2019] FCA 2192
INDUSTRIAL LAW  – Fair Work Act 2009 (Cth) (“FW Act”), ss 340, 348 and 355 – where in reliance upon s 348 union representative alleged to have made threats to take action against employer with intent to coerce employer to engage in industrial activity, being removal of employee from position and cessation of a project (“project”) – where in reliance upon s 355 union representative also alleged to have made threats to take action against employer with intent to coerce employer not to allocate employee duties of his position – where employee removed from his position and duties by his employer and project cancelled – discussion as to what constitutes a “threat” for purposes of ss 348 and 355 of FW Act – discussion of meaning of “intent to coerce” in ss 348 and 355 – discussion of 361(1) of FW Act: presumption that action taken for a particular reason or intent unless proven otherwise – to which elements or ingredients of a cause of action under ss 348 and 355 is s 361(1) applicable – the pre-conditions to the engagement of s 361(1) – whether s 361(1) can apply to a threat – discussion of standard of proof necessary for contravention of FW Act – whether pleading admissions made by one party can be used against another party in a joint trial – whether threats, as alleged, made by union representative – whether applicant engaged s 361(1) by making requisite allegation regarding union representative’s intent – whether threat made with intent to coerce – discussion of pleadings deficiencies – whether applicant discharged his onus to establish use of unlawful, illegitimate or unconscionable means by union representative – whether employer and manager accessorily liable under s 550 of FW Act – adverse action – FW Act s 340: where alleged that employee removed from position for reasons that include that employee had a workplace right – applicable legal principles discussed – whether adverse actions (removal of employee from his position and exclusion of employee from work) taken including because of  employee’s workplace right to a safe working environment

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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