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Employment Law and Workplace Relations Monthly Update - June 2020

01 July 2020

#Workplace Relations & Safety

Employment Law and Workplace Relations Monthly Update - June 2020

In the media

Former accounting firm in court
The Fair Work Ombudsman has commenced legal action in the Federal Circuit Court against the former operator of a Sydney accounting firm, UHY Sothertons Sydney Pty Ltd for allegedly failing to pay entitlements owing on termination of employment in the context of a sale of business (29 June 2020).  More...

ABCC successful in age discrimination case
In a decision delivered by the Federal Court, a Western Australian labour hire company has been found to have discriminated against a worker because of his age (26 June 2020).  More...

Wake up call for labour hire employers on wages
An Australian Building and Construction Commission (ABCC) audit of 63 labour hire employers revealed a disappointing 79 per cent didn’t meet all their obligations under Australia’s workplace laws (19 June 2020).  More...

ABC signs Enforceable Undertaking
The Australian Broadcasting Corporation (ABC) has back-paid over $11.9 million to more than 1,800 current and former casual staff and entered into an Enforceable Undertaking (EU) with the FWO. The national broadcaster has also reached agreement with the Fair Work Ombudsman to make a "contrition payment" for underpaying more than 1,900 casual staff over several years (19 June 2020).  More...

Former Sydney entrepreneur penalised
The Fair Work Ombudsman has secured $264,690 in penalties against a former Sydney entrepreneur, his wife and three companies he operated in response to employees being underpaid more than $1 million (18 June 2020).  More...

Portable long service entitlements for Queensland community service workers
The Palaszczuk Government has passed legislation to introduce a portable long service leave scheme for workers in the community services industry (17 June 2020).  More...

High Court asked to overturn 'double dipping' decision
Labour hire firm Workpac has launched a High Court challenge to a landmark ruling on casual employment, warning it will expose businesses to up to $14 billion in backpay. The application filed in the High Court by WorkPac seeks special leave to appeal the decision of the Full Federal Court in the WorkPac v Rossato case.  More...

Wage Theft legislation passes Victorian Parliament
Victoria has become the first state in the country to pass laws establishing criminal penalties for employers who deliberately underpay or don’t pay their workers. New record keeping offences are aimed at employers who attempt to conceal wage theft by falsifying or failing to keep records (17 June 2020).  More...

Posties deliver security message
Australia Post has confirmed that no postal worker will be forced to accept a redundancy as part of the temporary changes to the postal service it has made in response to COVID-19 (15 June 2020).  More...

Court penalises CFMMEU for its “unconscionable war against free association” on building sites
The Federal Court has penalised the CFMMEU and two of its officials $123,500 as a result of unlawfully coercing workers to join and pay membership fees to the union and coercing subcontractors to pay “union rates” during construction work on Melbourne University’s college site in Parkville in 2016 (05 June 2020).  More...

Slavery paper to free from bondage
The Department of Home Affairs has released a scoping paper on how the Australian public sector can avoid supporting modern slavery in its procurement and purchasing practices (04 June 2020).  More...

Transport company in court
The Fair Work Ombudsman has commenced legal action in the Federal Circuit Court against Sydney-based passenger transport company, Ambient Transport Pty Ltd (03 June 2020).  More...
Over $200,000 penalties for restaurant underpayments
The Fair Work Ombudsman has secured penalties of $209,000 against a Melbourne restaurateur, his two companies and his in-house accountant for underpaying workers (01 June 2020).  More...

Published - reports, articles, speeches 

ABCC: Industry Update – 10 June 2020 Edition
The June edition of Industry Update features the latest information from the ABCC, Commonwealth, state and territory initiatives for the construction industry during and post the COVID-19 pandemic, court outcomes and more.  More...

Department of Jobs and Small Business: Monthly Leading Indicator of Employment June 2020
The Monthly Leading Indicator of Employment (the Indicator) has fallen for the seventh consecutive month in June 2020, after three consecutive monthly rises. The Indicator’s decline this month is due to falls in three (out of five) of the Indicator’s components.  More...

The future is now: creating decent work post-pandemic
Sunil Johal; Public Policy Forum: The COVID-19 pandemic, which swept across the globe in the early months of 2020, has rapidly accelerated long-standing trends in labour markets and economies around the world. Income inequality, precarious work and the digitisation of the economy are now issues that policymakers must grapple with (12 June 2020).  More...

In practice and courts

Fair Work Ombudsman: 1.75% increase to minimum wages
The Fair Work Commission has announced a 1.75% increase to minimum wages. Increases to awards will start on 3 different dates for different groups of awards. Details outlined here (19 June 2020).  More...

FWC: Annual Wage Review 2019–20 decision issued
The Fair Work Commission has issued the Annual Wage Review 2019–20 decision. A summary of the decision is available on the Summaries of significant decisions page on the Commission's website (19 June 2020).  More...

Commonwealth Modern Slavery Statement Paper
This would report on modern slavery risks in the Government’s procurement and investment activities and explain the steps taken to identify and respond to those risks, and link with Australia’s Modern Slavery Act 2018, the only legislation in the world requiring a Government to report on modern slavery risks in its procurement activities (04 June 2020).  More...

FWC: Filing fee – Dismissals, general protections & anti-bullying applications
From 1 July 2020 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 $74.50. Also effective from 1 July, the high income threshold in unfair dismissal cases will increase to $153,600 and the compensation limit will be $76,800 for dismissals occurring on or after 1 July 2020.  More...

FWC: 18 modern awards extensively varied
The Fair Work Commission is extensively varying existing awards as a result of the 4 yearly review of modern awards. The modern awards will be varied in 3 tranches during 2020. The varied awards were published in advance and commenced operation, 18 June 2020 (18 June 2020).  More...

FWC: Jobkeeper disputes benchbook updated
The benchbook has been prepared by the Commission to assist parties who are lodging or responding to jobkeeper dispute applications under the Fair Work Act 2009 (Cth). The updated Jobkeeper disputes benchbook is now available (15 June 2020).  More...

FWC: General protections benchbook updated
The updated version reflects recent changes to the Privacy Act 1988 to include workplace rights that are intended to protect employees and others from disadvantage or other adverse consequences if they decide not to download or use the COVIDSafe app. View the online version here General protections benchbook (01 June 2020).  More...

Cases

Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd [2020] FCA 893
INDUSTRIAL LAW - adverse action - discrimination for reason of age - where recruitment company refused application for employment because person applying was 70 years old - where position was for grader operator on assignment in the Pilbara region of Western Australia - whether client or recruitment company was prospective employer - where client expressed concern about person's age - where independent assessment of age undertaken by decision‑maker - whether age was a substantial and operative factor in decision‑maker's reasons - contravention of s 351(1) of Fair Work Act 2009 (Cth) by first respondent established

Australia Education Union v Yooralla (No.2) [2020] FCCA 1659
INDUSTRIAL LAW – Penalties – contraventions of the Fair Work Act 2009 established – whether the Court should impose pecuniary penalties against the Respondent – whether the breaches arose from a single course of conduct – double jeopardy provisions considered – analysis of sections 556 and 557 of the Fair Work Act 2009 – the need for deterrence – imposition of pecuniary penalties to be paid within 30 days.

Vassallo v Easitag Pty Ltd [2020] FCA 875
INDUSTRIAL LAW – classification of employee for the purposes of the Electrical, Electronic and Communications Contracting Award 2010 and the National Electrical, Electronic and Communications Contracting Industry Award 1998 – matter previously arbitrated in the Fair Work Commission – whether decisions of the Fair Work Commission and Full Bench of the Fair Work Commission extinguished justiciable controversy between parties as to classification of the applicant employee – cause of action estoppel established – issue of employee’s classification not open to be re-agitated in proceedings before the Federal Court of Australia
Fair Work Act 2009 (Cth) ss 570, 739

Bell v Ouyen Hotel Pty Ltd [2020] FCCA 1505
INDUSTRIAL LAW – Adverse action claim – whether applicant resigned or accepted employer’s repudiation of the contract – whether applicant entitled to alleged award underpayments – whether employer injured the applicant in her employment because of exercise of workplace right – consequences of non-provision of payslips – applicant’s claims largely established – matter to be heard as to consequential orders and relief.
Fair Work Act 2009 (Cth), ss.340, 341, 343, 361, 386, 536, 545; Fair Work Regulations 2009

Fair Work Ombudsman v IE Enterprises Pty Ltd [2020] FCA 848
PRACTICE AND PROCEDURE – application for partial default judgment under r 5.23 of the Federal Court Rules 2011 (Cth) against respondents – failure of respondents to defend proceeding – failure of respondents to attend case management hearing – failure of respondents to comply with Court orders – whether Court has jurisdiction to grant relief – whether applicant is entitled to relief
INDUSTRIAL LAW – application for declaratory relief and compensation orders in relation to contraventions of the Fair Work Act 2009 (Cth) – failure to pay minimum hourly rates – failure to pay employees in full – failure to make and keep employee records – failure to provide pay slips – whether contraventions are serious contraventions as they were part of a systematic pattern of conduct – whether first respondent expressly, tacitly or impliedly authorised contraventions – whether second respondent knew that first respondent’s contraventions were serious contraventions
Held: application for partial default judgment granted
Fair Work Act 2009 (Cth) ss 45, 323(1), 535(1), 536(1), 536(3), 545(2)(b), 547(2), 550, 550(2), 557A, 557A(1), 557(5A), 557B(1)
Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 (Cth)

Fair Work Ombudsman v Priority Matters Pty Ltd & Anor (No.5) [2020] FCCA 901
INDUSTRIAL LAW – Fair Work – assessment of penalties for established breaches of the Fair Work Act 2009 (Cth) by corporations and directors as accessories.
Fair Work Act 2009 (Cth), ss.23, 44, 45, 90, 99, 116, 117, 119, 293, 323, 328, 539, 542, 546, 550, 557, 570, 682
(1) By 31 December 2020, or such other date as may be agreed between the parties, Priority Matters Pty Ltd pay a pecuniary penalty of $51,000 to the Commonwealth pursuant to s.546 of the Fair Work Act 2009 (Cth) (Fair Work Act) for the contraventions set out in the declarations dated 22 February 2019.
(2) By 31 December 2020, or such other date as may be agreed between the parties, Kia Silverbrook pay a pecuniary penalty of $10,200 to the Commonwealth pursuant to s.546 of the Fair Work Act for the contraventions set out in the declarations dated 22 February 2019.

Joseph v Parnell Corporate Services Pty Ltd (No 2) [2020] FCA 838
INDUSTRIAL LAW – termination of employment contract not unlawful – misconduct – unpaid annual leave and long service leave entitlements
CONTRACT – damages for settlement of proceedings instituted overseas
PRACTICE AND PROCEDURE – costs
Judgment for the Applicant/Cross-Respondent against the Third Respondent/Third Cross-Claimant in the amount of US$141,559.90 inclusive of interest to the date of judgment.

Agapitos v Colliers International (WA) Pty Ltd [2020] FCCA 1536
INDUSTRIAL LAW – Practice and Procedure – claims for long service leave and commissions arising from employment – claim arises under the Fair Work Act 2009 by reason of reference to the National Employment Standards – application falls within the federal jurisdiction – whether a claim that does not properly plead a federal matter can be amended to raise a federal matter – application is a civil matter arising under section 566 of the Act – justiciable controversy encompassing potential Award breach claims – application is not a bare plea – claim is not colourable and made for the improper purpose of fabricating jurisdiction – claim is not trivial aspect of the controversy – no requirement to issue notices to Attorneys General of the States or Territories pursuant to s 78B of Judiciary Act 1903.

Rhodes v Firepower Pump Systems Pty Ltd trading as Territory Fire Service & Training [2020] FCCA 1649
INDUSTRIAL LAW – Fair Work – small claim – which Award applies to an applicant who worked as a service technician with respect to building fire systems – Plumbing and Fire Sprinklers Award 2010 – Electrical, Electronic and Communications Contracting Award 2010 – employee covered by Plumbing and Fire Sprinklers Award 2010.
INDUSTRIAL LAW – Fair Work – proper interpretation of ‘redundancy’ in clause 18.2 of Plumbing and Fire Sprinklers Award 2010 – where ‘redundancy’ given a broad definition in Award as being ‘where an employee ceases to be employed by an employer’ – ‘redundancy’ as defined in Award includes resignation.
INDUSTRIAL LAW – Fair Work – over-Award payments – amount due and owing for ‘redundancy’ – payments over-Award rates for ordinary hours do not satisfy redundancy or severance payment obligations under Award.
(1) The Respondent pay a total of $12,537.29 to the Applicant

Association of Professional Engineers, Scientists and Managers Australia v Bulga Underground Operations Pty Ltd (No 2) [2020] FCA 812
INDUSTRIAL LAW – civil penalty – where employer breached s 323 of the Fair Work Act 2009 (Cth) – whether penalty should be imposed
Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) ss 39AC, 39CB(2)
Fair Work Act 2009 (Cth) ss 323, 323(1), 546(1), 546(3)(c), 556
Pursuant to s 546(1) of the Fair Work Act 2009 (Cth), the respondent pay a pecuniary penalty of $10,000.00.

Kiyama v Mtn Top Pty Ltd & Ors [2020] FCCA 1205
INDUSTRIAL LAW – Application for summary judgment – accessorial liability – whether contravention of Fair Work Act 2009 (Cth) – failure to pay entitlements – absence of clear pleading – directions for filing of documents – provision for hearing.
Fair Work Act 2009 (Cth), ss.44, 45, 87(1)(a), 125(1), 325(1), 345, 550(1)

Kambouridis v L.R. Reed City Pty Ltd & Anor [2020] FCCA 1484
INDUSTRIAL LAW – Contravention of Fair Work Act 2009 – unfair dismissal – penalties hearing – failure to pay compensation ordered – costs order sought – penalties imposed.
Fair Work Act 2009 (Cth), ss.390, 392, 405, 539, 546, 550 and 570.
(1) The first respondent contravened s.405 of the Fair Work Act 2009 (the Act) in failing to comply with the order of the Fair Work Commission dated 11 October 2017.
3) The first respondent pay to the applicant a penalty of $20,000 pursuant to s.546(1) of the Act for its contraventions set out in paragraph 1 above.

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The College Crescent Case) [2020] FCA 757
INDUSTRIAL LAW – pecuniary penalties – agreed contraventions – adverse action – application of “no ticket, no start” philosophy – coercion of subcontractor to pay “union rates” – analysis of the nature, gravity, character and seriousness of the contraventions – whether history of contravening conduct should inform the court’s assessment of how objectively serious the agreed contraventions were – application of “civil double jeopardy”, “course of conduct” and “totality” principles – personal payment orders – appropriateness of declaratory relief
Building and Construction Industry (Improving Productivity) Act 2016 (Cth) ss 5 and 15
Crimes Act 1914 (Cth), s 4AA
Crimes Legislation Amendment (Penalty Unit) Act 2015 (Cth), item 2 of sch 1
Fair Work Act 2009 (Cth) pts 2-4, 3-1; ss 12, 336, 342, 346, 347, 348, 363, 539, 545, 546, 556 and 793
Fair Work (Registered Organisations) Act 2009 (Cth) s 12
The first respondent pay pecuniary penalties totalling $110,000.00.
The second respondent pay pecuniary penalties totalling $7,500.00.
The third respondent pay a pecuniary penalty of $6,000.00.

Fair Work Ombudsman v B2D Pty Ltd & Anor [2020] FCCA 1442
INDUSTRIAL LAW – Application for breaches of civil remedy provisions of the Fair Work Act 2009 – employer failed to pay wages and provide appropriate wage slips – Fair Work Ombudsman issued notice to produce records of wage payments – respondents produced material that is alleged to be misleading and deceptive – respondents failed to take any steps in the proceedings – proceedings undefended – matters to be considered.
Fair Work Act 2009 (Cth), ss.3, 535, 536, 539, 545, 547, 550, 687, 701, 712, 716, 718A 

Ross v Paea trading as Bombora Cafe [2020] FCA 766
INDUSTRIAL LAW – where Applicant employed as cook by First Respondent – where Applicant claims unpaid wages, annual leave, taxation and superannuation under Fair Work Act 2009 (Cth)(the Act) – whether the Restaurant Industry Award 2010 applies to First Respondent – whether First Respondent is employer under s 47 of the Act – whether First Respondent contravened the Act
SUPERANNUATION – whether employee can sue employer where employer fails to make superannuation contributions to complying fund – nature of compulsory superannuation laws as tax in constitutional sense
BANKRUPTCY – where First Respondent has filed for bankruptcy prior to Court reserving judgment – whether leave granted to Applicant to proceed under s 58(3)(b) of the Bankruptcy Act 1966 (Cth) – where Court has already heard evidence in the case – where trustee of bankrupt estate neither agrees nor objects to leave being granted
PRACTICE AND PROCEDURE – where Applicant assisted by unadmitted acquaintance who appears to have been holding himself out as lawyer – whether judgment reasons should be referred to Law Society of New South Wales
Constitution ss 51(ii), 51(xx), 51(xxxi), 51(xxxvii), 55, 122
Bankruptcy Act 1966 (Cth) s 58(3)(b)
Evidence Act 1995 (Cth) s 29(2)
Fair Work Act 2009 (Cth) ss 30H, 30N, 30L, 42, 44, 45, 46, 47, 61, 87, 90, 539, 545
Leave be granted to the Applicant to proceed against the Bankrupt Estate of the First Respondent.
Judgment for the Applicant against the First Respondent for $17,583.26.

Legislation

Commonwealth

Bills

Paid Parental Leave Amendment (Flexibility Measures) Bill 2020
Finally passed both Houses 11 June 2020 Assent Act no: 53 Year: 2020 16 June 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.

Paid Parental Leave Amendment (Flexibility Measures) Act 2020
Act No. 53 of 2020 17 June 2020

Fair Work Amendment (One in, All in) Bill 2020
Registered 15 June 2020 Introduced HR 15 June 2020
This bill extends the FWC’s jurisdiction to deal with disputes about whether an employee is eligible for the JobKeeper scheme. The FWC cannot make an order on or after the end date of the Jobkeeper scheme which is 28 September 2020

Regulations

Paid Parental Leave Amendment (Coronavirus Economic Response) Rules 2020
This instrument amends the Paid Parental Leave Rules 2010 to assist people who have been affected by the economic impacts of the Coronavirus (COVID-19) pandemic to be eligible for parental leave pay or dad and partner pay (17 June 2020). 

Fair Work Amendment (Variation of Enterprise Agreements No. 2) Regulations 2020
These regulations amend the Fair Work Regulations 2009 to repeal amendments made by the Fair Work Amendment (Variation of Enterprise Agreements) Regulations 2020, which modified the period that employees must have access to a copy of a proposed variation of an enterprise agreement, and before which employees must be notified of the details of the vote on the variation (the ‘access period’), from seven days to one day. This measure was intended to be a time-limited change to enable employers and their employees to quickly respond to issues that may arise in response to COVID-19 (12 June 2020).

Aged Care (Leave from Residential Care Services) (Situation of Emergency—Human Coronavirus with Pandemic Potential) Determination 2020
This instrument declares the current COVID-19 pandemic as a situation of emergency for the purposes of subsection 42-2A(1) of the Aged Care Act 1997. Under this determination, emergency leave will be available to permanent aged care residents across Australia from 1 April 2020 to 30 September 2020 (2 June 2020).

Queensland

Bills

Community Services Industry (Portable Long Service Leave) Bill 2019
Stage reached: Passed with amendment on 17/06/2020
Assent Date: 22/06/2020 Act No: 19 of 2020Commences: see Act for details

Subordinate legislation reminder
This regulation commences on 1 July 2020

Building and Construction Industry (Portable Long Service Leave) (Levy Changes) Amendment Regulation 2020 (Qld)
This Regulation is made under the Building and Construction Industry (Portable Long Service Leave) Act 1991. The policy objectives is to remove the tiered levy structure which currently provides discounted levy rates to very large projects and replace it with a single levy rate for leviable matters, and to increase the portable long service leave levy from 0.25 per cent to 0.35 per cent.

Building and Construction Industry (Portable Long Service Leave) (Levy Changes) Amendment Regulation 2020 (Qld)

Workers' Compensation and Rehabilitation (QOTE) Notice 2020 (Qld)
12 June 2020 - This Notice is made under the Workers' Compensation and Rehabilitation Act 2003 (the Act). Compensation entitlements of injured workers and dependants of deceased workers under the Act are subject to indexation in accordance with increases in Queensland Ordinary Time Earnings (QOTE) to ensure the relative value of those amounts over time. Under section 10A of the Act, the Workers' Compensation Regulator must, before the start of a financial year, notify QOTE for the financial year and the percentage difference in QOTE for the financial year compared to QOTE for the previous financial year.

Victoria

Acts

Wage Theft Act 2020 (Vic)
Act Number: 21/2020 Date of assent: 23 June 2020

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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