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Employment Law and Workplace Relations Monthly Update – June 2021

02 July 2021

#Workplace Relations & Safety

Employment Law and Workplace Relations Monthly Update – June 2021

In the media

Chinese restaurant in Melbourne penalised
The Fair Work Ombudsman has secured a total of $309,750 in penalties in court in response to a migrant employee being underpaid at a Melbourne Chinese restaurant (29 June 2021).  More... 

New laws to target workplace harassment
The Attorney-General’s Department has publicised proposed new laws before the Parliament, which crack down on sexual harassment and discrimination in Australia’s workplaces. Ms Cash said the Bill gave effect to commitments made in the Government’s response to the Respect@Work Report (28 June 2021).  More...

CFMMEU penalised over safety claims including first aid bed was “too high” on Melbourne Metro Tunnel Project
A CFMMEU shop steward who directed workers to stop work at the $11 billion Melbourne Metro Tunnel project in 2019 after claiming a first aid bed was too high has been penalised $5,000 and the union $85,000 for taking unlawful industrial action following a Federal Court decision (28 June 2021).  More...

Call for federal regulator for Australia’s gig economy after sixth delivery rider death revealed
A Senate inquiry has recommended the creation of a federal regulator for the gig economy as yet another death of a food delivery rider was revealed. The inquiry has also recommended that the definition of “employee” should be expanded to include gig workers (27 June 2021).  More...

Fair Work Ombudsman launches legal action against Woolworths over 'significant underpayments'
The FWO claims staff are still owed over $700,000 (18 June 2021).  More...

Unemployment rate falls to 5.1 per cent, employment up 115,000
The seasonally adjusted unemployment rate fell to 5.1 per cent in May 2021, with employment increasing by 115,000 people from April to May, according to the ABS. The youth unemployment rate increased by 0.1 percentage points but remained low, at 10.7 per cent (17 June 2021).  More...

CFMMEU and former officials hit with $382,800 penalties for targeting crane company in Wollongong
The Federal Court penalised the CFMMEU and two former officials $382,800 following unlawful conduct against mobile crane company WGC Cranes to pressure it to sign a CFMMEU enterprise agreement (09 June 2021).  More...

Security services company in court
The Fair Work Ombudsman has commenced legal action in the Federal Circuit Court against the operators of a security services company in Perth (08 June 2021).  More...

Workplace review brings Parliament to book
The findings of a review into the procedures and processes for dealing with serious incidents affecting employees in the Parliament have been released for feedback from the Government, opposition, and staff members employed in the system. Ms Foster said current procedures and processes were not designed or able to respond appropriately to serious incidents in the Parliamentary workplace, particularly to sexual assault (07 June 2021).  More...

Sydney research company faces court
The Fair Work Ombudsman has commenced legal action against a Sydney health and wellness research company for alleged sham contracting involving workers with a disability (04 June 2021).  More...

Published reports, articles, speeches

Department of Jobs and Small Business: Monthly Leading Indicator of Employment 2021
The Monthly Leading Indicator of Employment (the Indicator) has risen for the twelfth consecutive month in June 2021, following a strongly confirmed trough in the Indicator in June 2020. The Indicator’s rise this month is attributed to three of its five components. Click here to read more.

ABCC Industry Update – 10 June 2021 edition
In this edition of Industry Update, we look at two recent examples of Code covered entities that have failed to comply with the Code, litigation news and more. Click here to read more.

In practice and courts

FWO: Annual Wage Review 2021
Published 15 June 2021, updated 18 June 2021. Following the Annual Wage Review 2021, the Fair Work Commission has announced a 2.5 per cent increase to the national minimum wage. A summary of the Annual Wage Review 2021 decision is available on the summaries of significant decisions page on the Commission's website. The full decision is available here.

FWC: New online application form for enterprise agreements
The Fair Work Commission is building a new way for users to fill in and lodge enterprise agreements (23 June 2021). Find out more here.

FWC: Filing fee increase – dismissals, general protections and anti-bullying applications
From 1 July 2021, the application fee for dismissals, general protections and bullying at work applications made under sections 365, 372, 394, 773 and 789FC of the Fair Work Act 2009 will increase to $74.90. Also effective from 1 July, the high income threshold in unfair dismissal cases will increase to $158,500 (23 June 2021). Find out more here.

Commonwealth Parliamentary Review now open for submissions and interviews: Sex discrimination
The AHRC has commenced invitation for contributions for its Independent Review into Commonwealth Parliamentary Workplaces, the review aim is to ensure all Commonwealth Parliamentary workplaces are safe and respectful and that our national Parliament reflects best practice in the prevention and handling of bullying, sexual harassment and sexual assault. Make a written submission here. Closes on 31 July 2021.

Cases

McAlister v Yara Australia Pty Ltd [2021] FCCA 1409
INDUSTRIAL LAW – contract of employment – where employee was summarily dismissed – whether breach of contract – whether term of reasonable notice implied – remedies for breach.
INDUSTRIAL LAW – adverse action claim – whether contract of employment terminated for prohibited reason.
INDUSTRIAL LAW – redundancy – whether applicant’s role made redundant.
Fair Work Act 2009 (Cth), sections 117, 119, 340, 361.

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (the WGC Cranes Case) [2021] FCA 622
INDUSTRIAL LAW – contraventions of section 54(1) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (‘BCIIP Act’) and section 346 of the Fair Work Act 2009 (Cth) – where two union officials admitted to engaging in intimidatory and disruptive conduct with intent to apply undue pressure on employer to make or approve a building enterprise agreement on terms proposed by the union – where the union posted photograph of employee on social media labelling employee as a “scab” attracting abusive comments – assessment of penalties – where section 94 of the BCIIP Act provides that a body corporate is taken to have engaged in the same conduct as an officer, employee or agent of the body within the scope of his or her actual or apparent authority, whether union committed one or three contraventions of section 54(1) – where contraventions occurred on consecutive days and were part of a single industrial campaign, whether contraventions should be treated as a single course of conduct – whether sections 83 and 84 of the BCIIP Act exclude the operation of the common law course of conduct principle – whether contraventions objectively serious – where union officials have no previous contraventions – where union has a history of non-compliance with industrial laws – where conduct of union officials occurred on consecutive days, was directed to a common end, and had some common features, whether the totality principle required adjustment of aggregate penalties.

Difelice v Dettmer [2021] FCA 631
INDUSTRIAL LAW – applicant holds office as assistant state secretary of a well-known trade union – misconduct charges brought against applicant seeking his removal from office – charges proposed to be determined by the union’s National Council – procedures set in train by resolutions made on 6 May 2021 – whether National Council resolutions are beyond the power conferred on that body by the union’s rules – whether the National Council meeting at which procedures were decided was validly convened – whether National Council has power to determine whether a “State Official” should be removed from office.
PRACTICE AND PROCEDURE – application for interlocutory relief under section 164(4) of the Fair Work (Registered Organisations) Act 2009 (Cth) – appropriateness of directions for the observance of union rules – application for interlocutory relief granted.

Tapping v Empress Diamonds Pty Ltd ATF Empress Discretionary Trust [2021] FCCA 1335
INDUSTRIAL LAW – Fair Work Act 2009 – breach of general protections – applicant’s sudden diagnosis of breast cancer in 2019 – applicant seeking to exercise workplace rights – whether applicant’s dismissal was unlawful because she proposed to take leave – dismissal unlawful.
Alleged failure of respondents to pay accrued annual leave and to give notice of termination – no annual leave owed – failure to provide notice of termination or payment in lieu found.
Alleged failure to provide copy of an award and NES – whether the provision of a computer or internet connection sufficient to discharge obligation to provide copy of award – mere provision of computer and internet connection not sufficient.
Accessorial liability – second respondent found to be an accessory because he had power to dismiss employee and was directly involved in the dismissal – section respondent not an accessory in respect of other contraventions.
Fair Work Act 2009 (Cth) sections 44(1), 45(1), 90(2), 117(2), 340(1), 340(1)(a)(ii). 340(1)(a)(iii), 351(1), 352, 536(1), 361, 550(2).

Fair Work Ombudsman v China Bar Buffet (Epping) Pty Ltd & Ors [2021] FCCA 1430
INDUSTRIAL LAW – Contraventions of the Restaurant Industry Award 2010, Fair Work Act 2009 (Cth), Fair Work Regulations 2009 (Cth) – parties by consent seek declarations of contravention and imposition of pecuniary penalties within ranges agreed to by the parties – admitted contraventions of Fair Work Act 2009 (Cth) – failure of the first respondent to pay minimum rates of pay, overtime rates, Saturday, Sunday and public holiday rates, annual leave loading on termination, split shift allowances and superannuation contributions – failure to keep employee records – failure to give pay slips – making and keeping false or misleading records – whether penalties reflect need for general deterrence – the importance of specific deterrence – totality – declarations made by the court – penalty orders made.

Wildman v IMCD Australia Limited [2021] FCCA 1161
INDUSTRIAL LAW – adverse action – coercion – workplace right to take paid personal leave under section 97 of the Fair Work Act 2009 (Cth) – applicant employee on paid personal leave for more than three months – where applicant submitted medical certificates – respondent asserted applicant did not provide evidence of requisite character that would satisfy a reasonable employer as to applicant’s unfitness for work under section 107 of the Act – where did not enliven right to take personal leave under section 97 of the Act – applicant on paid personal leave – applicant dismissed from employment whilst on paid personal leave – termination without notice or payment in lieu – legitimate exercise of employer’s power to direct respondent – employer issued directions to attend independent medical assessment, meetings with employer, and workplace whilst on paid personal leave – applicant refused – respondent asserted directions lawful and reasonable – whether applicant dismissed for a reason or reasons including his exercise of a workplace right – respondent alleged applicant engaged in serious misconduct – duty to co-operate at common law – held applicant dismissed for reasons including exercise of workplace right to paid personal leave, or to exercise leave in a particular way – held respondent’s conduct unlawful – held respondent’s conduct coercion – held medical certificates and evidence satisfied section 107 of the Act – held respondent’s directions not lawful – held respondent’s directions not reasonable – held duty to co-operate not breached – held respondent’s directions and conduct unlawful coercions – held adverse actions – held contraventions of Act established – application allowed – cross-claim for repayment of payments whilst on sick leave – cross-claim dismissed.

SBP Employment Solutions Pty Ltd v Smith [2021] FCA 601
INDUSTRIAL LAW – appeal against decision of Federal Circuit Court of Australia – Fair Work Act 2009 (Cth) – where employer found to have taken adverse action under section 340 – where employer’s four directors and related company found accessorily liable – whether employee made “complaints or inquiries” under section 341(1)(c)(ii) – whether “complaints or inquiries” a substantial and operative reason for dismissal – where two of four directors gave evidence – challenge to adverse credibility finding based on misapplication of Jones v Dunkel inference – no substantial miscarriage of justice – no retrial – whether penalties manifestly excessive – reduction in penalties against employer and two directors – penalties against related company and two directors set aside – grounds of appeal upheld in part.
INDUSTRIAL LAW – penalties – where declarations made that employer failed to pay out annual leave entitlements within a reasonable time under sections 44 and 90(2) – where related company and four directors found accessorily liable – whether penalties manifestly excessive – reduction in penalties against employer and one director – penalties against related company and three directors set aside – grounds of appeal upheld in part.
COMPENSATION – quantum – reduction in economic loss to account for vicissitudes – grounds of appeal upheld in part.
COSTS – application for extension of time – extension granted – application for leave to appeal against costs orders under section 570 – leave granted – costs orders set aside – no costs – ground of appeal upheld.

Legislation

Commonwealth

Bills

Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021
Senate 26/06/2021 – would strengthen Australia’s anti-discrimination and industrial relations frameworks by simplifying, clarifying and enhancing protections against sexual harassment and other forms of sex discrimination in the workplace.

Mutual Recognition Amendment Bill 2021
Assent Act no: 50. Year: 2021. 24 June 2021.
To introduce a uniform scheme of automatic mutual recognition (AMR) by enabling an individual who is registered for an occupation in their home state to carry on those activities in other states and territories; enable a state minister to exempt a registration in their state from being subject to AMR for a renewable period of up to five years because of a significant risk to consumer protection, the environment, animal welfare or the health or safety of workers or the public; and enable a state minister to exempt a registration in their state for a temporary period.

NSW

Regulations and other miscellaneous instruments
Annual Holidays Regulation 2021 (2021-288) – published LW 18 June 2021.
Long Service Leave (Metalliferous Mining Industry) Regulation 2021 (2021-292) – published LW 18 June 2021.
Long Service Leave Regulation 2021 (2021-293) – published LW 18 June 2021.

Victoria

Date of commencement: 1 July 2021.
Industrial Relations Legislation Amendment Act 2021 (Vic)
Sections 1-56, 58-61, 63-91 of this Act came in by forced commencement on 1 July 2021 section 2(1).
Act Number: 14/2021.

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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