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Employment Law and Workplace Relations Monthly Update - July 2019

31 July 2019

#Workplace Relations & Safety

Employment Law and Workplace Relations Monthly Update - July 2019

In the media

Former public servants lose hope of multi-million-dollar redundancy fight
A multi-million-dollar class action by former senior public servants hoping to claw back extra pay after being made redundant from Airservices Australia is scuttled by a federal court judgement (30 July 2019).  More...

QLD puts FIFO ban on eight more large projects
The Queensland Government has added another eight large resources projects to its ban on fly-in, fly-out recruitment in support of jobs for local communities (26 July 2019).  More...

Wage theft or honest mistake? Small business hits back
Small business owners fear the Morrison government's plan to criminalise wage theft may unfairly target those who make "honest mistakes" and are demanding changes to the award system to make it easier for them to pay workers correctly (25 July 2019).  More...

George Calombaris' fine for multi-million-dollar wages scandal too low, Attorney-General says
Attorney-General Christian Porter says former MasterChef judge George Calombaris' fine for underpaying staff $7.8 million in wages was too "light" (24 July 2019).  More...

Fall-out from Setka affair could give Coalition easier passage of union bill
One of the Coalition government’s first priorities in the new parliament is the passage of its Ensuring Integrity Bill, aimed at tightening regulations on unions and union officials. The bill would give the minister for industrial relations, as well as the Registered Organisations Commission and any party deemed to have “sufficient interest”, the power to apply to the Federal Court to deregister a union (24 July 2019).  More...

Day spa operator back-pays visa holders
The operator of six day spa centres in Sydney has back-paid $65,939.87 to 13 employees, and admits he made unlawful deductions from their salary and underpaid penalty rates and annual leave entitlements (23 July 2019).  More... 

ABCC takes action after mass walk-off on Fortitude Valley site
The Australian Building and Construction Commission has commenced proceedings in the Federal Court alleging 66 employees of various subcontractors and a labour hire company on a Fortitude Valley site engaged in unlawful industrial action (22 July 2019).  More...

Workplace health and safety risks spotlighted in report
SAI Global, which says that, despite businesses in Australia having a legal requirement to comply with their state’s Workplace Health and Safety laws, more than 100,000 serious workplace injuries still occur every year (17 July 2019).  More...

'Uncertainty' over super as BlueScope workers miss out on 'millions' in backpay
A full Federal Court decision to deny BlueScope workers' superannuation backpay claims could have major implications for other companies whose employees are on industrial awards, experts warn (12 July 2019).  More...

Michael Hill Jewellers admits it underpaid staff by up to $25 million
Jewellery chain Michael Hill says it will be repaying its retail staff up to $25 million in wages after finding errors in its application of the retail award (11 July 2019).  More...

Cheap migrant worker cut-off slips as regional push brings further discounts for employers
To encourage more migrants to work in regions, the Government is relaxing long-held restrictions on temporary workers (10 July 2019).  More...

CFMMEU and Luke Collier penalised $13,500 for safety breach on Barangaroo site
The Federal Circuit Court in Sydney has imposed penalties totaling $13,500 against the CFMMEU and its then organiser Luke Collier after he refused to follow OHS procedures while on the $163 million Barangaroo Headland Park site on 5 March 2014 (04 July 2019).  More...

Queensland contractor to pay $200,000 after discriminating against subbie following CFMMEU threat
The Federal Circuit Court in Brisbane has found Forest Meiers Construction liable to pay $200,000 in compensation for taking adverse action and discriminating against a tiling subcontractor because they did not have an enterprise agreement with the CFMMEU (02 July 2019).  More...

Published - reports, articles, speeches 

Wage growth in Australia: lessons from longitudinal microdata
Dan Andrews, Nathan Deutscher, Jonathan Hambur, David Hansell
This paper uses novel microdata sources spanning 2001-02 to 2015-16 to explore the structural drivers of wage growth in Australia, with a view to better understanding recent weak wage growth – a phenomenon observed across a range of advanced economies (16 July 2019).  More...

Multigenerational workforces: a guide to the rights of older workers under the Age Discrimination Act 2004 (Cth)
This guide is issued under section 53(1)(f) of the Age Discrimination Act 2004 (Cth) (the Act). It is designed to provide employers and other work providers with information about the operation of the Act and provide practical guidance about promoting the inclusion of older workers (10 July 2019).  More...

ABCC Industry Update - July 2019 edition
Welcome to the July 2019 edition of Industry Update, our quarterly online newsletter. Industry Update provides updates on the latest activities of the ABCC, industry trends, and emerging issues (04 July 2019).  More...

Department of Jobs and Small Business: Monthly Leading Indicator of Employment 17 July 2019
Cyclical employment fell in July 2019, after eleven consecutive monthly rises.  More...

In practice and courts

FWO: Changes to the Retail Award
The Fair Work Commission has handed down a decision about the Retail Award which clarifies overtime entitlements for part-time employees. The decision confirms that part-time employees are entitled to overtime if they work outside the roster conditions in the award (July 2019).  More...

Reminder: Anti -Slavery Act
The first reporting year for companies with the Australian financial year is 1 July 2019 - 30 June 2020 so businesses should be aware of these obligations this year.  More...

Reminder: New regulation commencing on 01 July 2019
FWO: Get set for a 3.0% wage increase - 2019 Annual Wage Review
The increase applies from the first full pay period starting on or after 1 July 2019. The new national minimum wage will be $740.80 per week or $19.49 per hour.  More...

FWC: Changes to applications for a Right of entry permit
The Fair Work Amendment (Modernising Right of Entry) Regulations 2019 took effect on 1 July 2019. They required new entry permits to include a photo and signature of the permit holder. Applications under the new system have begun from 1 July 2019.  More...

FWC: Filing fee – Dismissals, general protections & anti-bullying applications
From 1 July 2019 the application fee for dismissals, general protections and anti-bullying applications made under sections 365, 372, 394, 773 and 789FC of the Fair Work Act 2009 will increase to $73.20. Also effective as of 1 July, the high income threshold in unfair dismissal cases will increase to $148,700 and the compensation limit will be $74,350 for dismissals occurring on or after 1 July 2019.  More...

Case

Duck v Airservices Australia (No 2) [2019] FCA 1148
INDUSTRIAL LAW – where class action sought to recover difference between entitlements under individual contracts and entitlements under enterprise agreements – whether clauses of agreements operated to the effect that employees on individual contracts were not covered by the agreements – held: answer to the separate question is ‘yes’ – application dismissed as the case may be, operate to the effect that the applicant and each group member was/is not covered by that agreement.

Taylor v Peninsula Sports Academy Pty Ltd [2019] FCCA 1929
INDUSTRIAL LAW – Fitness Industry Award 2010 (Cth) – underpayment – unpaid allowances – break between shifts less than 10 hours – broken shift allowance – classification of the Applicant under the Award.
The respondent pay the applicant the sum of $16,560.40 (being the underpayment of $16,070.04 and $490.36 in interest). 

Australian Building and Construction Commissioner v Myles & Ors (No.2) [2019] FCCA 1932
INDUSTRIAL LAW – Imposition of pecuniary penalties – taking unprotected industrial action. Fair Work Act 2009 (Cth), ss.19(1)(c), 417, 546(3), 557(1), 557(1)(b), 557(2)

Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd [2019] FCA 1070
INDUSTRIAL LAW – admitted contravention of s 501 of the Fair Work Act 2009 (Cth) (the “FW Act”) – civil penalties – right of entry pursuant to pt 3-4 of the FW Act – whether entry was refused – meaning of the phrase ‘refuse entry’ – proportionality of penalty to contravening conduct – declaration of contravention of the FW Act – declaration sought by consent – principles relating to the making of a declaration – penalty imposed – no declaration made. A pecuniary penalty of $15,000.00 be imposed upon the first respondent.

Australian Building and Construction Commissioner v Ingham (The 180 Brisbane Construction Case) [2019] FCA 1052
INDUSTRIAL LAW – alleged contraventions of Fair Work Act 2009 (Cth) ss 417(1) and 500 – whether contractors and subcontractors authorised or agreed to conduct of Union representatives – entry permits and entry notices – whether “open door” policy or requirement for Union representatives to give notice before entering site – where Union representative claimed to have entered site to raise money for injured Union worker and workers took opportunity to raise workplace issues – genuine and reasonable concerns about imminent risks to health and safety
INDUSTRIAL LAW – whether Union representatives organised work stoppages – whether stoppages authorised by enterprise agreements – interpretation of “industrial action” – onus of proving the “organising” of industrial action within meaning of Fair Work Act 2009 (Cth) s 19(2) – whether Union representatives exercised or sought to exercise rights under Fair Work Act 2009 (Cth) Pt 3-4 – whether Union representatives “involved in” contraventions of civil remedy provisions – accessorial liability – aiding and abetting contraventions
INDUSTRIAL LAW – whether respondent Union liable for contraventions of Union representatives pursuant to Fair Work Act 2009 (Cth) ss 550 and 793 – whether Union representatives intentionally hindered or obstructed or acted improperly – whether Union representatives acted with actual or apparent authority – where individual respondents “clothed with apparent authority”

Fair Work Ombudsman v A & S Wholesale Fruit & Vegetables Pty Ltd & Ors [2019] FCCA 1838
INDUSTRIAL LAW – Application for civil penalty– admitted contraventions of the Fair Work Act 2009 (Cth) by first respondent – admitted accessorial liability by second and third respondents – where parties have agreed on penalties – whether agreed penalty is appropriate.

Fair Work Ombudsman v Safecorp Security Group Pty Ltd & Anor (No.3) [2019] FCCA 1756
INDUSTRIAL LAW – Hearing of proceeding remitted by Federal Court after appeal – whether first respondent contravened terms of award and therefore s.45 of the Fair Work Act 2009 (Cth) (FW Act) – whether second respondent involved in those contraventions – pecuniary penalties assessed and ordered.

Australian Building & Construction Commissioner v Molina (No 2) [2019] FCA 1014
INDUSTRIAL LAW – civil penalty proceedings – adverse action under s 346(b) Fair Work Act 2009 (Cth) – adverse action by first respondent against employer on site – threat to picket – whether prejudice established
INDUSTRIAL LAW – civil penalty proceedings – coercion under s 348 Fair Work Act 2009 (Cth) – whether intent to negate employer's choice that workers stay on operating site – content and meaning of threat
Building and Construction Industry (Improving Productivity) Act 2016 (Cth) s 5

The Environmental Group Ltd v Bowd [2019] FCA 951
INDUSTRIAL LAW – termination of employment – where employee reported in a CEO report financial irregularities to the board – where employee made a complaint to the Australian Securities and Investments Commission alleging serious fraud within the company before completion of an audit – where employee took personal leave – where employee’s lawyers prepared a letter to the company recording grievances – whether employee exercised a workplace right – whether a “complaint” for the purposes of s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) must be made in good faith – whether a complaint “in relation to” an employee’s employment must be directed at or concerned with that person’s employment in a substantive way – whether Pt 9.4AAA of the Corporations Act 2001 (Cth) is a “workplace law” – whether adverse action was taken – whether an investigation into an employee’s conduct constituted adverse action – where employee’s dismissal was purportedly a product of the breakdown of the relationship between the board and employee – whether adverse action was taken “because” of the exercise of a workplace right
CORPORATIONS – protection for whistleblowers – whether employee had reasonable grounds to suspect contraventions of the Corporations Act 2001 (Cth) – whether disclosure was made in good faith – whether complaint was made for a secondary purpose
CONTRACTS – breach of contract – whether employee breached contract by retaining company property after termination
COPYRIGHT – acts not constituting copyright infringement – whether copying was done for the purposes of a judicial proceeding – whether the possibility of a future proceeding is sufficient for the purposes of s 43 of the Copyright Act 1968 (Cth)

Construction, Forestry, Maritime, Mining and Energy Union v Anglo American Australia Limited [2019] FCAFC 109
INDUSTRIAL LAW – application for review of decision of Full Bench of Fair Work Commission – review made as part of 4 yearly review under s 156 of the Fair Work Act 2009 (Cth) – where review concerned reducing period of accident pay in Black Coal Mining Industry Award 2010 – whether review under s 156 requires single, holistic review
ADMINISTRATIVE LAW – whether inadequacy of reasons amounted to jurisdictional error – reasons of the Full Bench of Fair Work Commission adequate – whether Full Bench was functus officio in making its decision – whether Full Bench gave proper, genuine and realistic consideration to issues – whether jurisdictional error for making of finding with no evidence – application dismissed Workplace Relations Act 1996 (Cth); Black Coal Mining Industry Award 2010 cl 18

Legislation

Commonwealth
Bills

Fair Work Laws Amendment (Proper Use of Worker Benefits) Bill 2019
HR 04/07/2019 – will amend the Fair Work (Registered Organisations) Act 2009 (the RO Act) and the Fair Work Act 2009 (the FW Act) to protect workers through greater governance and transparency of registered organisations and associated entities, in particular worker entitlement funds and gives effect to recommendations made by the Royal Commission into Trade Union Governance and Corruption (the Royal Commission).

Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019
HR Second reading debate 31/07/2019 – amends the Fair Work (Registered Organisations) Act 2009 (the Act) to respond to community concern and the recommendations of the Final Report of the Royal Commission into Trade Union Governance and Corruption (the Royal Commission) to ensure the integrity of registered organisations and their officials, for the benefit of their members

Act Compilation
Paid Parental Leave Act 2010 

Regulation
Act No. 104 of 2010 (9 July 2019).  

Fair Work Commission Amendment (Entry Permits and Other Measures) Rules 2019
This instrument amends the Fair Work Commission Rules 2013 to provide for practice and procedure that is to be followed by the Fair Work Commission and the conduct of business in relation to matters allowed or required to be dealt with by the Fair Work Commission (22 July 2019).

Maternity Leave (Commonwealth Employees) Amendment (ASIC) Regulations 2019
These regulations amend the Maternity Leave (Commonwealth Employees) Regulations 2017 to ensure Australian Securities and Investments Commission (ASIC) employees remain covered by the maternity leave arrangements provided for under the Maternity Leave (Commonwealth Employees) Act 1973 once ASIC ceases to employ staff under the Public Service Act 1999 on 1 July 2019 (1 July 2019).  

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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