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Employment Law and Workplace Relations Monthly Update - June 2019

02 July 2019

#Workplace Relations & Safety

Employment Law and Workplace Relations Monthly Update - June 2019

In the media

New entry permit card from 1 July 2019
Entry permit cards issued by the Fair Work Commission will be changing from 1 July 2019 as a result of the Fair Work Amendment (Modernising Right of Entry) Regulations 2019. The Regulations require the new entry permit to contain the photo and signature of the permit holder (28 June 2019).  More... 

Industry groups’ wishlist for workplace relations reforms
Responding to the Prime Minister’s announcement that the Australian government will look at workplace relations reform, a range of industry groups have reportedly outlined what they would like to see from the federal government (27 June 2019).  More... 

Federal Court penalty on CFMMEU Victorian official backs up rulings on right of entry laws
A Federal Court penalty judgment has reaffirmed earlier High Court and Full Federal Court rulings that union officials must hold valid federal entry permits when exercising rights of entry under state or territory OHS laws (25 June 2019).  More...  

Federal Court penalises company for terminating subbies’ contract over late union fees
Commercial painting business Prolac P/L and its director Tim Petrusic have been penalised $16,200 for terminating a subcontractor’s contract on the EQ Tower project in Melbourne‘s CBD in 2017 (24 June 2019).  More...  

FWO discontinues legal action against Foodora
The Fair Work Ombudsman has discontinued its legal action against food delivery company Foodora Australia Pty Ltd (Foodora) after the company ceased operations in Australia in August 2018 (21 June 2019).  More...

Commonwealth Games security guards underpaid
Ten security guards from the 2018 Gold Coast Commonwealth Games have received more than $24,000 in unpaid wages, following a Fair Work Ombudsman (FWO) audit of security providers for the event (21 June 2019).  More... 

Survey reveals exploitation of transport workers
Transport and delivery workers in the gig economy are paid less, work more hours unpaid and are less satisfied than other workers (21 June 2019).  More...  

Building a fair, effective and accountable franchising network
The Morrison Government has established a Franchising Taskforce to advise on reforms to the sector and build a framework that supports franchisees and franchisors (21 June 2019).  More... 

Struggling retailers say penalty rate cut offers them a lifeline
Sunday retail and hospitality workers are set for another penalty rate cut on July 1 2019, but small businesses say the reduction is not enough to make much of a difference to their struggling operations  (20 June 2019).  More... 

Boilermakers not baristas wanted, as skills fail to align with job vacancies
The changing mix of Australian employment is leading to a skills shortage and is harming both businesses and job seekers alike, a new study warns (19 June 2019).  More... 

Rogue labour hire provider convicted
Queensland Industrial Relations Minister Grace Grace has welcomed an Australian-first conviction of a labour hire provider who supplied workers to a business without a licence to do so. The Palaszczuk Government introduced Australia’s first labour hire licensing laws to ensure vulnerable workers were not subject to exploitation and mistreatment (18 June 2019).  More...  

They wanted a second wife': Tourists detail working holiday exploitation
Australia's working holiday visa will be extended to a third year from July 1 2019, but experts and former backpackers are warning there could be an increased risk of exploitation and abuse (16 June 2019).  More... 

Labour Force figures: More Australians in work than ever before
Labour force figures released by the ABS underscore the strength and resilience of the Australian labour market, with seasonally adjusted employment increasing by 42,300 in May 2019, to stand at a record high, of 12,868,200 (13 June 2019).  More... 

Unemployment is steady, but the news isn't great for those seeking work in construction or property
Australia's unemployment rate remains stuck at 5.2 per cent, despite the creation of 42,300 jobs in May, as a record number of people look for work (13 June 2019).  More...

New laws needed for law breaking unions and officials
Denita Wawn, CEO of Master Builders Australia has said the Ensuring Integrity Bill is about making unions more accountable and bringing them into line with the community’s expectations (13 June 2019).  More... 

Jobs boom, but not everywhere: What the census says about Australia's growth
Australia's sprawling outer suburbs have rapidly growing populations, but most of the new residents have a very long commute to get to jobs that are mainly located near the CBD (12 June 2019).  More... 

Uber drivers are not employees, won't get the minimum wage, finds FWO
The Fair Work Ombudsman decides that Uber drivers are not employees, but independent contractors, and will not take further action against the rideshare company (07 June 2019).  More... 

FWO launches 2019-20 priorities
Fair Work Ombudsman Sandra Parker announced the regulator’s priorities for the year ahead, which will direct the agency’s compliance work and enforcement outcomes (03 June 2019).  More... 

Published - reports, articles, speeches 

Union organising and labour market rules: Two sides of the same coin
Jim Stanford; Centre for Future Work: 13 June 2019
This study documents the correlation between workers' rights and union organising - and shows they are two sides of the same coin. The correlation between workers' rights and the success of unions suggests that unions in Australia will need to continue their campaign to "Change”.  More... 

The future of women at work: transitions in the age of automation
McKinsey Global Institute: 01 June 2019
In the automation age, women face new challenges overlaid on long-established ones. Automation could displace millions from their jobs; many others will need to change the way they work.  More... 

Department of Jobs and Small Business: Monthly Leading Indicator of Employment June 2019
The Department of Employment, Skills, Small and Family Business’ Monthly Leading Indicator of Employment has fallen for the fourteenth consecutive month in June 2019, after eight consecutive monthly rises.  More... 

In practice and courts

ABCC E-Alert: Minimum wage increase – make sure you are paying the right rate
New minimum wage increases apply from the first full pay period after 1 July 2019.
The new rates apply to Employees who get their pay rates from: the national minimum wage, a modern award, or an enterprise agreement (if the base rate is below the modern award rate). For help understanding your wages obligations in the building and construction industry, see the wages and entitlements page (28 June 2019). 

FWC: Changes to applications for a Right of Entry permit
The Fair Work Amendment (Modernising Right of Entry) Regulations 2019 take effect on 1 July 2019. They require new entry permits to include a photo and signature of the permit holder. The Fair Work Commission is changing its processes to enable this. As a result of the change, no applications for a Right of entry permit will be accepted under the existing system from 26 June 2019. Applications under the new system can begin from 1 July 2019 (24 June 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 from 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 (24 June 2019).  More... 

FWO:  Get set for a 3.0% wage increase - 2019 Annual Wage Review
The Fair Work Commission has announced a 3.0% increase to minimum wages. 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... 

FWO: 2019 Annual Wage Review - our pay tools are ready
We’ve updated our pay tools following the Fair Work Commission’s decision to increase base rates of pay by 3.0%. The increase applies from the first full pay period starting on or after 1 July 2019.  More... 

FWO: Changes to the Real Estate Award reminder
On 1 May 2019, the Fair Work Commission handed down a decision to change the Real Estate Award. The decision changes how commission-only payments for salespersons apply and who they apply to. The changes apply in 2 stages. The first from the first full pay period on or after 30 April 2019 and the second from the first full pay period on or after 30 June 2019.  More...  

Reminder:  Commonwealth Modern Slavery Act 2018
The first reporting year for companies with the Australian financial year is 1 July 2019 - 30 June 2020. Businesses should be aware of their obligations this year. 

Case

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

Taylor v Vivacity Engineering Pty Ltd [2019] FCCA 1751
INDUSTRIAL LAW  – COURTS AND JUDICIAL SYSTEM – Federal jurisdiction – applicant commenced proceeding in the Supreme Court of New South Wales for family provision order under s.59 of the Succession Act 2006 (NSW) (family provision proceeding) – applicant then commenced proceeding (FW Act proceeding) in the Federal Circuit Court (Court) under the Fair Work Act 2009 (Cth) (FW Act) claiming relief for contraventions of s.44(1) of the FW Act and damages for termination of employment contract without reasonable notice – whether the claims the applicant makes in the family provision proceeding and in the FW Act proceeding arise out of the same substratum of facts and, for that reason, constitute a single “matter” over which the Court has jurisdiction - claims constitute one “matter” – whether assuming the claims made in the FW Act proceeding and in the family provision proceeding constitute one “matter” the Court has a discretion whether to exercise that jurisdiction – Court has no discretion not to exercise jurisdiction but has power to stay part of proceeding that consists of the claims made in the family provision proceeding.

Tran v Kodari Securities Pty Ltd [2019] FCA 968
INDUSTRIAL LAW  – whether employee sought to obtain legal advice in respect of a new contract of employment – whether respondents took adverse action against employee because he proposed to exercise a workplace right – whether respondents coerced employee not to exercise that workplace right – application of principles to civil penalties – consideration of reasonable notice period – held: application granted
Evidence Act 1995 (Cth) ss 60, 136, 140, 140(1), 140(2)
Fair Work Act 2009 (Cth) ss 340, 340(1)(a)(iii), 341, 341(1)(c)(ii), 343, 343(1)(a), 545(2)(b), 547

Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972
INDUSTRIAL LAW  – admitted contraventions of s 494(1) of the Fair Work Act 2009 (Cth) – an official of an organisation exercised a “State ... OHS right without being a permit holder - making of declarations – principles relating to imposition of pecuniary penalties – whether no penalty should be made where a person contravenes a civil penalty provision on a genuine but mistaken view of the law – relevance of previous contraventions by the respondent of industrial legislation to the penalty to be imposed – proportionality of penalty to contravening conduct – general deterrence – specific deterrence– whether a single course or multiple courses of conduct – principle of totality.

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973
INDUSTRIAL LAW  – admitted contraventions of s 500 of the Fair Work Act 2009 (Cth) (“Act”) which provides that a permit holder “exercising, or seeking to exercise, rights...must not...act in an improper manner” – admitted contravention of s 340(1) of the Act which provides that a person “must not take adverse action against another person...because the other person...has, or has not exercised a workplace right” – making of declarations – principles relating to imposition of pecuniary penalties –relevance of previous contraventions by the respondents of industrial legislation to the penalty to be imposed – proportionality of penalty to contravening conduct – general deterrence – specific deterrence – whether a single course or multiple courses of conduct – principle of totality – whether pecuniary penalties should be imposed on the second and third respondents personally – principles relating to personal payment orders.

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)

Cameron v Goldwind Australia Pty Ltd [2019] FCCA 1541
INDUSTRIAL LAW  – PRACTICE & PROCEDURE – Application for interlocutory injunction to restrain respondent employer from proceeding with termination of applicant’s employment – whether applicant has reasonably arguable case that she has a cause of action based on respondent’s alleged contravention of s.351(1) of the Fair Work Act 2009 (Cth) (FW Act) – whether applicant has a reasonably arguable case that claim based on contravention of s.351(1) of the FW Act is barred by s.351(2)(a) in combination with the Anti-Discrimination Act 1977 (NSW) – whether applicant will suffer irreparable injury if interlocutory injunction is not granted but applicant succeeds at final hearing – interlocutory injunction not granted because applicant will not suffer irreparable injury assuming final hearing is heard on an expedited basis.

McParland v Origin Oz Holdings T/a Nuline Glass& Ors [2019] FCCA 1534
 INDUSTRIAL LAW  – Contraventions of provisions of FWA – breach of contract of employment by original employer – transfer of employment – terms on which contract of employment transferred – termination of second employment – adverse action – whether adverse action causative of financial loss – whether compensation payable for distress, hurt and humiliation as a result of termination of employment – whether applicant had common law cause of action in tort or for breach of contract of employment for reasons unrelated to adverse action – pecuniary penalties to be imposed by reason of contraventions.
Fair Work Act 2009 (Cth) ss.44(1), 117, 323(1), 340(1), 341(1)(c), 342, 545(2)(b), 550.; Federal Circuit Court Rules 2001 (Cth) r.6.08(2)(a), 16.05(2)(h).

Zintchenko v Maisouradze & Ors [2019] FCCA 1724
INDUSTRIAL LAW  – Whether service was affected – whether previous orders should be set aside – decision of the Fair Work Commissioner – accessorial liability.
Evidence Act 1995 (Cth), ss.161 and 162; Fair Work Act 2009 (Cth), s.543(3); Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1), 16.05(2)(a)

United Voice v Academy Services Pty Ltd [2019] FCCA 1620
INDUSTRIAL LAW  – Workplace agreement – whether respondent in breach of workplace agreement in failing to offer employment to existing employees of an outgoing contractor – whether relevant clause in collective agreement void by virtue of prohibited content – approbation and reprobation – whether relevant content of collective agreement pertained to relations between employer and employee – content not prohibited – breach of collective agreement found – declaration made.
Academy Services Pty Ltd has contravened Section 50 of the Fair Work Act 2009 (Cth) by failing to offer employment to existing staff of an outgoing contractor

Legislation

Commonwealth

Gazetted 28 June 2019

Fair Work Information Statement - July 2019
Minimum pay rates - Your minimum pay rate will usually be set in an award or an enterprise agreement. If there’s no modern award or enterprise agreement covering your work, you’re still entitled to at least the national minimum wage which, from 1 July 2019, is: $19.49 per hour for full-time and part-time adult employees and $24.36 for casual adult employees.

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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