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Employment Law and Workplace Relations Monthly Update - March 2019

02 April 2019

#Workplace Relations & Safety

Employment Law and Workplace Relations Monthly Update - March 2019

In the media

Modernising right of entry to Australian workplaces
The Governor-General has made changes to the Fair Work Regulations to modernise the right of entry scheme that allows union officials to enter workplaces. From 1 July 2019, the right of entry permits issued by the Fair Work Commission must include a photo and signature of the permit holder, along with any conditions on its use (26 March 2019).  More...

NSW service station chain faces court
The Fair Work Ombudsman has commenced legal action against a major service station chain for allegedly underpaying 22 employees $62,393 at sites across regional NSW (25, March 2019).  More... 

ABCC alleges apprentice and electrician told to “get off” Frankston construction project because they were not CFMMEU members
The ABCC has commenced proceedings in the Federal Court against the CFMMEU and its shop steward, Kevin Pattinson, for allegedly preventing an electrician and apprentice from working on a Melbourne site because they were not members of a union (25 March 2019).  More...

World first ruling for journalist with PTSD
Bree Knoester, Managing Partner at Adviceline Injury Lawyers (a division of Holding Redlich), secured a landmark ruling in a Victorian court for a journalist with PTSD. The judge awarded the journalist $180k in damages, ruling The Age breached its duty of care. The case offers significant lessons for all media organisations on how to deal with trauma (22 March 2019).  More... 

Small business owners worried workers can too easily claim sick days via pharmacist certificates
Small business operators say illegitimate sick days are costing them thousands of dollars a year and many blame pharmacists, who are allowed to issue "absence-from-work certificates" (20 March 2019).  More... 

More than a hundred experts urge policy changes to boost wages
The letter, endorsed by economists, lawyers and labour market experts, urges policy action to support wage growth and calls arguments that higher wages would threaten economic stability "puzzling and unconvincing" (18 March 2019).  More... 

Annual Wage Review: Ai Group proposes a two per cent wage increase
The Australian Industry Group's submission to this year's Annual Wage Review argues that a modest wage increase of two per cent is warranted. This equates to an increase of about $14.40 per week in the National Minimum Wage and about $16.75 per week at the base trade level (14 March 2019).  More...

ACCC, ASIC put to work on 'exploitative' franchising sector
The consumer watchdog should be given new powers to police the franchising industry, according to a parliamentary inquiry which has also called on the corporate regulator to watch the scandal-prone sector more closely (15 March 2019).  More...
FCA statement (14 March 2019).  More...

Upcoming labour market testing audits
The ABCC will soon be conducting a labour market testing audit campaign for employers covered by the Code for the Tendering and Performance of Building Work 2016 (Code). When employers covered by the Code recruit workers that are not Australian citizens or Australian permanent residents to undertake building work, the Code requires a series of tests and activities to be applied, commonly known as ‘labour market testing’ (12 March 2019).  More...

Court orders near maximum penalties after finding worker told CFMMEU he would be “working for nothing” if made to join union on Toowoomba site
The Federal Circuit Court has imposed total penalties of $55,080 against the CFMMEU and its site delegate after he pressured a landscaper to join the union despite only being contracted to work on a Toowoomba building site for a couple of days (08 March 2019).  More...

Standing up for vulnerable workers
Minister for Jobs and Industrial Relations, the Hon Kelly O’Dwyer MP, said the Coalition Government has accepted in principle all 22 recommendations of the Migrant Workers’ Taskforce Report and is building on measures already introduced to protect vulnerable workers (07 March 2019).  More...

Brisbane teenager allegedly unpaid for 150 hours
The Fair Work Ombudsman has commenced legal action against the former operator of a Sunshine Coast-based business, alleging he failed to pay an 18-year-old labourer (07 March 2019).  More...

Subway franchisee penalised $65,000
The Fair Work Ombudsman has secured $65,438 in penalties in Court against the former franchisee of two Subway outlets in Sydney for underpaying a Chinese worker more than $16,000 (04 March 2019).  More... 

ABCC launches legal action against CFMMEU alleging coercion, adverse action and unlawful industrial action on QLD building site
The ABCC has commenced proceedings in the Federal Court alleging the CFMMEU and two of its officials, including assistant Queensland state secretary Jade Ingham, engaged in coercion, adverse action and organised unlawful industrial action (04 March 2019).  More...

Fashion start-up penalised over unpaid internship
The Fair Work Ombudsman has secured a total of $329,133 in penalties in Court against a fashion industry start-up for underpaying three workers more than $40,000, including by purportedly engaging one of the workers as an unpaid intern when she was, in fact, a part-time employee (01 March 2019).  More... 

Published - reports, articles, speeches

Workplace policy reform in New Zealand: what are the lessons for Australia?
Alison Pennington; Centre for Future Work: 26 March 2019.
Australia can learn much from the policy leadership of the Ardern Government in New Zealand and its reforms to address stagnant wages and rebuild a more inclusive workplace relations framework, according to this research.  More... 

Ending wage theft: eradicating underpayment in the Australian workplace
Edward Cavanough, Lachlan Blain; The McKell Institute: 26 March 2019.
This report outlines how state and federal governments can do more to eradicate the underpayment of wages in Australia.  More... 

Jobs but not enough work. How power keeps workers anxious and wages low
Barbara Pocock, The Conversation: 22 March 2019.
We've the lowest unemployment rate in eight years, but little to celebrate.  More... 

A turning point for labour market policy in Australia
Jim Stanford; The Economic and Labour Relations Review: 14 March 2019.
This article argues that the Australian labour market and industrial relations policies are poised for fundamental change. A combination of political and macroeconomic factors has created a historic opportunity to turn away from the individualised, market-driven labour market policy that has prevailed since the 1980s.  More... 

Gender Equity Insights 2019: breaking through the glass ceiling
Alan Duncan, Rebecca Cassells; Bankwest Curtin Economics Centre: 01 March 2019
This report provides insight into positive change that has been made across different sectors in recent years and highlights the importance of workplace policy initiatives in ensuring women continue to progress into senior positions and in narrowing the gender pay gap in Australia.  More... 

In practice and courts

Trends in Federal Enterprise Bargaining Report for the December Quarter is now available
Trends in Federal Enterprise Bargaining (Trends),  is a quarterly report that provides data, and an accompanying explanatory summary, on quarterly growth in wages and agreement making in the federal workplace relations system. You can view the latest report on the Trends in Federal Enterprise Bargaining page here (29 March 2019).

FWC: Amended statutory declaration forms published
The Fair Work Commission has published a number of amended forms. The amendments reflect the requirements of the new Statutory Declarations Regulations 2018, which change the prescribed form for statutory declarations. All statutory declarations made from 18 March 2019 must be in the new prescribed form to be valid (13 March 2019).  More...
The Commission’s statutory declarations guide and generic statutory declaration form have also been updated in line with the changes.

Victorian labour-hire licensing scheme commences 29 April 2019
Labour-hire providers will have six months to apply for a licence to operate in the State after this time. To obtain and keep a licence, labour-hire firms will need to pass a "fit and proper person test", which involves demonstrating long-term compliance with Victoria's OHS and workers' compensation Acts.  Information sessions will be held from March - April. To find out more visit the events page here.   More... 

ABCC: Fitness for work audits underway
The desktop audits assess whether code covered contractors that are required to have an ABCC approved Workplace Relations Management Plan (WRMP) in place are complying with the drug and alcohol testing requirements in their WRMP. These requirements are designed to improve the safety of workers and others involved in the building industry. The specific requirements for fitness for work policies are covered in Schedule 4 of the 2016 Code. See fitness for work responsibilities here and WRMPs here (March 2019). More... 

FWO: Cultural & religious holidays: What employers and employees need to know
Lots of religious and cultural holidays observed in Australia aren't recognised public holidays. This means that your employees may wish to take time off work to celebrate these holidays. Visit the Department of Home Affairs Harmony Day website to see their 2019 calendar of cultural and religious dates here.

Cases

Fair Work Ombudsman v Transpetrol TM AS [2019] FCA 400
INDUSTRIAL LAW – where foreign employer of crew of vessel engaged in coastal trading admitted contraventions of ss 45 and 293 of Fair Work Act 2009 (Cth) by underpaying crew members under an award or the National Minimum Wage Order 2014 – where s 33(3) of Act and reg 1.15E of Fair Work Regulations 2009 (Cth) extended application of Act to vessel sailing in Australia’s exclusive economic zone and waters above continental shelf under a temporary licence issued under Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth) – where purpose of that extension to make cost of employing crew of vessel under temporary licence comparable to that of vessel of general licence holder for some part of voyage – where employer complied with obligations to pay crew under Maritime Labour Convention, employment and collective bargaining agreements as required by law in crew member’s domicile – where employer cooperated with Ombudsman and paid crew full amount of alleged underpayment – where Court found alleged underpayment greater than sum actually due – where employer bound to pay crew and allocate payments in accordance with Maritime Labour Convention and laws of crew member’s domicile – where Convention and crew employment and collective bargaining agreements and foreign law require particular allocations in total pay different to those under Fair Work Act 2009 (Cth) – where employer had to comply with Convention, agreements and foreign law to maintain maritime labour certificate for vessel as required by Marine Order 11 (Living and working conditions on vessels) 2013 and “blue certificate” for vessel as required by International Transport Workers’ Federation – whether civil pecuniary penalties should be imposed
INDUSTRIAL LAW – whether employer entitled to set off top up payments against overall underpayment of wages – where employer paid top up amounts to employee to ensure compliance with Maritime Labour Convention and maintain “blue certificate” – where top up amounts achieved common wage scale for employees of same rank and seniority
ADMIRALTY – nature of and differences between demise and time charters – where employer was a demise charterer and time chartered foreign flagged ship – where time charterer sub-chartered ship to sub-charterers – where sub-charterer holder of a temporary licence under Div 2 of Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth) – application of Fair Work Act 2009 (Cth) to a “temporary licensed ship” in Australia’s exclusive economic zone and waters above the continental shelf (s 33(3) of Fair Work Act 2009 (Cth), reg 1.15E(1)(c) of Fair Work Regulations 2009 (Cth)) – where sub-charterer not inform or required to inform owner or demise charterer that vessel or voyage under temporary licence held by sub-charterer – where consequence of a voyage obliged employer of vessel’s crew to pay wages in accordance with Fair Work Act 2009 (Cth). Dismissed.

Griffiths v Hanselmann [2019] FCCA 710
INDUSTRIAL LAW – Application made pursuant to the Fair Work Act 2009 (Cth) – contraventions found – orders made for payment – submissions on appropriate calculation. Fair Work Act 2009, ss.545, 546 (1) Pursuant to s.545(2)(b) of the Fair Work Act 2009 (Cth) (“the Act”) the respondent pay the applicant on or before 20 May 2019 the following sums for the contraventions referred to above

Moffet v Dental Corporation Pty Ltd [2019] FCA 344
INDUSTRIAL LAW – whether Respondent misrepresented employment as independent contracting arrangement – whether Respondent failed to make payments for accrued but untaken annual leave – whether Respondent failed to make payments with respect to accrued long service leave – whether Applicant was an employee or independent contractor at common law – consideration of general principles when determining whether a person is an employee or independent contractor – whether Applicant a “worker” for the purposes of the Long Service Leave Act 1955 (NSW)

Construction, Forestry, Maritime, Mining And Energy Union v Asbestos Removalist Pty Ltd & Anor [2019] FCCA 529
INDUSTRIAL LAW – Fair work – alleged breaches of enterprise agreements – contraventions of the Fair Work Act 2009 (Cth) – Second Respondent accessory liability in respect of First Respondent company’s contravention – where Second Respondent made no case submission – Second Respondent actual knowledge – liability findings – declarations – proceeding to penalty. Fair Work Act 2009 (Cth), ss.50, 550, 536, 545, 546, 547

Australian Building and Construction Commission v D'Arcy & Anor [2019] FCCA 563
INDUSTRIAL LAW – Admission of contraventions of s. 349 of Fair Work Act – blatant contraventions – mitigating factors – declarations of contraventions made – pecuniary penalties imposed. Fair Work Act 2009 (Cth), ss.567(c), 566(3), 349, 3(e), 336,

Keenan v Cummins South Pacific Pty Ltd (No.2) [2019] FCCA 523
INDUSTRIAL LAW – Penalty – reinstatement – large multinational corporation – deliberate breaches of the Fair Work Act. Fair Work Act 2009, s 545(2)

Kumar v Consulate General of India, Sydney (No.2) [2019] FCCA 400
INDUSTRIAL LAW – Fair Work – underpayments – issue dealt with in principal judgment as having been resolved between the parties – issue in fact not resolved or agreement repudiated by the respondent – variation of orders in the principal judgment. Fair Work Act 2009 (Cth), s.570

Fair Work Ombudsman v G & Z United Pty Ltd & Anor [2019] FCCA 465
INDUSTRIAL LAW – Penalty – contraventions of modern award relating to remuneration – failure to keep records – liability conceded – appropriate penalty to be imposed – relevant considerations – applicable penalty – accessorial liability. Fair Work Act 2009 (Cth), ss.12, 45, 535, 536, 539, 546, 550, 556, 557; Fair Work Regulations 2009 (Cth), regs.3.32(c), 3.46 (1) The First Respondent, G & Z United Pty Ltd, contravened each of the following civil remedy provisions:

Coote v Mainline Access Pty Ltd & Anor (No.3) [2019] FCCA 383
 INDUSTRIAL LAW – PRACTICE AND PROCEDURE – Application to set aside orders made by consent after publication of reasons for judgment dealing with liability of respondents for contravening provisions of the Fair Work Act 2009 (Cth) – whether consent orders are interlocutory – whether Court has jurisdiction under the implied incidental power to set aside consent orders – whether it is a ground for setting aside orders made by consent if the orders do not reflect, or are inconsistent with, findings the Court has made – whether consent orders supported by the findings made – consent orders set aside on terms.
INDUSTRIAL LAW – Construction of s.323(1) of the Fair Work Act 2009 (Cth) – whether s.323(1) is contravened only because an employer fails to pay an amount payable under a term of a contract of employment for the performance of work – no settled authority to the effect that s.323(1) is contravened only because an employer fails to pay an amount payable under a contract of employment for the performance of work.
INDUSTRIAL LAW – Application for final relief and the imposition of penalties – compensation under s.545 of the Fair Work Act 2009 (Cth) assessed and other remedies granted – civil penalties ordered.
INDUSTRIAL LAW – COSTS – Application for costs – whether respondents acted unreasonably – application for costs dismissed.

Legislation 

Commonwealth

Regulation

Fair Work Amendment (Modernising Right of Entry) Regulations 2019
2503/2019 - These regulations amend the Fair Work Regulations 2009 to modernise the form of entry permits by giving the Fair Work Commission the discretion to determine the precise form of entry permits subject to certain requirements, and by amending the prescribed form for entry notices and exemption certificates to include additional information

Paid Parental Leave Amendment (Waiting Period Exemptions) Rules 2019
21/03/2019 - These rules amend the Paid Parental Leave Rules 2010 to prescribe a further set of circumstances in which a person can be exempt from the newly arrived resident's waiting period.

Bills

Fair Work Amendment (Right to Request Casual Conversion) Bill 2019
The Senate referred the provisions of the Fair Work Amendment (Right to Request Casual Conversion) Bill 2019 to the Education and Employment Legislation Committee for inquiry and report by 26 March The Bill would amend the Fair Work Act 2009 (the Act) to insert into the National Employment Standards (NES) a new right for eligible employees to request to convert to full-time or part-time employment. See the report here

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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