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Employment Law and Workplace Relations Monthly Update - May 2019

04 June 2019

#Workplace Relations & Safety

Employment Law and Workplace Relations Monthly Update - May 2019

In the media

Geelong businesses under FWO microscope
Fair Work inspectors completed surprise audits of around 80 businesses in the university suburbs of Geelong, following intelligence that employers in the area were at risk of breaching workplace laws (31 May 2019).  More... 

Annual Wage Review 2018–19 decision issued
The Fair Work Commission issued the Annual Wage Review 2018–19 annual wage review, Major case, Decision (30 May 2019) More...

Melbourne toy retailer faces increased penalties
The Fair Work Ombudsman has commenced its first legal action under the serious contravention provisions of the Protecting Vulnerable Workers laws, for the alleged underpayment of workers selling Christmas toys (29 May 2019).  More... 

Software companies sign up to FWO scrutiny
Two Sydney businesses have back-paid two visa holders a total of $34,429 as part of a Court-Enforceable Undertaking (EU) with the Fair Work Ombudsman (28 May 2019).  More...

Trolley collectors protected under new Proactive Compliance Deed with the FWO
Australia’s largest trolley collection company United Trolley Collections (UTC) has renewed a compliance partnership with the Fair Work Ombudsman to ensure trolley collectors’ workplace rights are protected (17 May 2019).  More... 

Monthly Leading Indicator of Employment: latest release
The Department of Jobs and Small Business has released the May edition of the Monthly Leading Indicator of Employment. The Indicator has fallen for the thirteenth consecutive month in May 2019, after eight consecutive monthly rises (15 May 2019).  More...

Couple lodges court claim for almost $500k in unpaid wages
Bill and Jackie Lakovski say they worked 60 hours a week each — often overnight — with no penalty rates or superannuation for a cleaning company that provides services for a Melbourne council (13 May 2019).  More...

FWO and ASIC join forces to target first-time directors to recover almost $40,000 for workers
The Fair Work Ombudsman (FWO) has recovered wages for 99 underpaid Melbourne workers in a joint campaign with the Australian Securities and Investments Commission (ASIC) (10 May 2019).  More... 

ABCC takes court action over unlawful picket of Sydney crane company
The ABCC has filed Federal Court proceedings against the CFMMEU and several of its NSW officials over alleged unlawful pickets of a Sydney-based crane company on 25 and 30 January 2019 (09 May 2019).  More...

Federal court ups penalty for company paying strike pay
The Federal Court has increased a penalty awarded against building company J Hutchinson Pty Ltd from $1,200 to $20,000. The ABCC filed an appeal from the Federal Circuit Court’s original decision on the basis the penalty was manifestly inadequate (08 May 2019).  More...

Sydney printing business faces court
A Sydney printing finishing business and its operator will face the Federal Circuit Court for allegedly failing to satisfy the requirements of a Compliance Notice issued to it by the Fair Work Ombudsman (08 May 2019).  More...

Published - reports, articles, speeches 

Transforming Australian manufacturing: Preparing businesses and workplaces for Industry 4.0
PricewaterhouseCoopers Australia: 16 May 2019
Industry 4.0 is rapidly changing Australia’s manufacturing industry. This research, undertaken by PwC, on behalf of Swinburne University, Siemens and the Australian Manufacturing Workers’ Union (AMWU), identifies the ways in which businesses and workforces must adapt to these changes.  More...

Estimating wage trends from personal income tax data
Jim Stanford; Centre for Future Work; 15 May 2019
This analysis of income tax data confirms a dramatic slowdown in Australian wages in recent years – and the slowdown is worse than previous statistics indicated.  More...

Humans wanted: Robots need you Australia
ManpowerGroup: 01 May 2019
Robot workers replacing human jobs – the debate of the decade. In reality, the opposite looks true. This report in Australia shows more employers than ever (84 per cent) plan to increase or maintain their headcount as a result of automation.  More...

In practice and courts

FWC: Online Enterprise agreements benchbook launched
The Fair Work Commission launched an interactive online version of our agreements benchbook. It contains plain English summaries of the key principles of enterprise agreement case law, and examples of how these have been applied in Commission decisions (27 May 2019).  More...  More...

FWC: Annual Wage Review 2018–19 decision
The Fair Work Commission issued the Annual Wage Review 2018–19 decision.
A summary of the decision is available on the Summaries of significant decisions page on the Commission's website.  More...  More...

FWO: Changes to the Real Estate Award
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 (May 2019).  More...

Victorian labour hire licensing scheme will commence on 29 April 2019
From 29 April labour hire providers will have six months to apply for a licence to operate in Victoria.
The Minister for Industrial Relations Tim Pallas announced the beginning of the scheme, aimed at making the labour hire system fairer for workers, businesses and providers.  More...

Feedback on changes to construction industry long service leave scheme
Public comment is also being sought from industry stakeholders on support for a small increase in the workplace health and safety levy to enhance support for mental health and suicide prevention in the building and construction industry.  Feedback on the proposed changes and their impact can be submitted through the Office of Industrial Relations website or the Queensland Government’s Get Involved website. Submissions should be made by close of business on 30 May 2019.

Cases

Strydom v CBD Refrigeration & Air Conditioning Pty Ltd & Ors [2019] FCCA 1444
INDUSTRIAL LAW  – Allegation of adverse action – whether employee resigned from employment – whether employment terminated for reason other than exercising of workplace right – whether employee paid notice in lieu of termination – whether employee provided with payslips within prescribed period.
Fair Work Act 2009 (Cth), ss.14, 44, 45, 117, 323, 324, 340, 341, 342, 361, 536, 550

Fair Work Ombudsman v Hasegawa & Ye International Pty Ltd & Anor [2019] FCCA 1424
INDUSTRIAL LAW  – Fair Work Act 2009 (Cth) – Fair Work Regulations 2009 (Cth) – fast food industry – admitted contraventions for underpayment of employees – contraventions objectively serious – pecuniary penalties imposed as well as other agreed relief.
Fair Work Act 2009 (Cth), ss.45, 535, 545, 546, 547, 550, 557; Fair Work Regulations 2009 (Cth)

Director, Fair Work Building Industry Inspectorate v Devine Constructions Pty Ltd & Ors [2019] FCCA 1394
INDUSTRIAL LAW  – Application for the imposition of pecuniary penalties – whether principal under a contract for services took adverse action against contractor – whether adverse action taken because contractor did not have an enterprise agreement that covered CFMEU – whether principal discriminated against contractor because contractor did not have an enterprise agreement that covered CFMEU.
Fair Work Act 2009 (Cth), ss.340, 340(1), 342, 342(1), 354, 354(1)(a)(iii), 550, 550(1), 361

Bluescope Steel (AIS) Pty Ltd v Australian Workers' Union [2019] FCAFC 84
INDUSTRIAL LAW  – appeal – whether failure to comply with s 50 of the Fair Work Act 2009 (Cth) and Item 15 of Sch 16 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) – employees paid annualised or aggregate salary – industrial awards and agreements – obligation to work additional hours and public holidays under annualised or aggregate salary – construction of superannuation clauses in industrial instruments – whether obligation to make superannuation contributions for overtime or additional hours and public holiday penalty rates – whether earnings for additional hours were “earnings in respect of ordinary hours of work” – whether earnings for public holidays were “earnings in respect of ordinary hours of work” – whether employee co-contributions should be taken into account in complying with obligation to make superannuation contributions – Commissioner of Taxation granted leave to intervene
SUPERANNUATION – history and purpose of superannuation regime – whether the Superannuation Guarantee (Administration) Act 1992 (Cth) and the Superannuation Guarantee Charge Act 1992 (Cth) impose a binding legal obligation to pay superannuation – proper construction of s 6(1) of the Superannuation Guarantee (Administration) Act 1992 (Cth) – construction of “earnings in respect of ordinary hours of work” – appeal allowed

Pacheco-Hernandez v Duty Free Stores Gold Coast Pty Ltd (No.2) [2019] FCCA 1295
INDUSTRIAL LAW  – Assessment of pecuniary penalties for contravention of s.340 of the Fair Work Act 2009 (Cth) – pecuniary penalty ordered

Fair Work Ombudsman v Zucco Farming Pty Ltd & Anor [2019] FCCA 1277
INDUSTRIAL LAW  – Civil penalty determination – first respondent operates stone fruit farm – engages two employees on casual basis over nine months paying under Award wages and no causal loading – respondents deny misconduct throughout investigation – proceeding listed for liability hearing – applicant serves evidence – new solicitor appointed to act for respondents – mediation – admission of liability – repayment of wages owing with interest – respondents proactively comply with regulators demands for compliance with workplace laws and re-education programs – applicable principles – penalties imposed.
Fair Work Act 2009 (Cth), ss.3, 45, 535, 536, 539, 545, 546, 550, 557

Clarke v Australian Outdoor Living (Victoria) Pty Ltd [2019] FCCA 1234
INDUSTRIAL LAW  – Commission – applicant claimed entitled to commission – disagreement as to amount of commission owed – applicant claimed commission owed for large number of transactions – respondent agreed that all transactions were complete (save as to five such transactions) – respondent contends that the applicant has been paid for all completed transactions – dispute as to payment – set-off – respondent claims that amounts due by applicant in respect of unrelated transactions were set-off against commission that was payable – whether set-off available – whether payments made – relief granted.
Fair Work Act 2009 (Cth), ss.12, 139, 323-324, 548, 548(1A)

Fair Work Ombudsman v Northcoast Security Services Group Pty Ltd & Ors (No.2) [2019] FCCA 1198
INDUSTRIAL LAW  – Application for pecuniary penalties against second and third respondents on the ground they were each involved in the first respondent’s contraventions of terms of an award in relation to a number of alleged employees, such contraventions consisting of the failure to pay amounts owing under the award – whether the first respondent was the employer of the alleged employees – the first respondent held to be the employer of the alleged employees – whether second and third respondents knew of the facts that constituted the first respondent’s failure to pay to the employees amounts owing under the award – whether the second and third respondents were aware that an award applied to the employees – second and third respondents each had knowledge of the facts – second and third respondents also had knowledge an award applied to the employees – each of the second and third respondents involved in first respondent’s contraventions of the award – whether Court has power to order compensation to any of the employees in circumstances where the employees are not parties to the proceeding – leave reserved to hear argument on that question.
Fair Work Act 2009 (Cth), ss. 13, 14, 45, 323(1)(a), 535

Australian Building and Construction Commissioner v J Hutchinson Pty Ltd T/A Hutchinson Builders [2019] FCA 667
INDUSTRIAL LAW  – appeal from a penalty imposed by the Federal Circuit Court – penalty for contravention of s 474(1)(b) of the Fair Work Act 2009 (Cth) – where primary judge imposed a penalty of $1,200 total for ten contraventions – whether primary judge failed to treat deterrence as the principal object of the discretion to impose a penalty – whether penalty imposed was manifestly inadequate – where primary judge stated that the purposes of civil penalties are punishment, deterrence and rehabilitation – penalty set aside
INDUSTRIAL LAW  – where penalty set aside – fresh exercise of the discretion to impose a penalty where maximum penalty is $510,000 – where a managing director of the respondent was aware of the unprotected industrial action but did not follow up on whether there had been compliance – where respondent is a major building company – significance of the role of general deterrence – where this is the first time the respondent has contravened

Fair Work Ombudsman v Transpetrol TM AS (No 2) [2019] FCA 608
Conclusion: “In my opinion, for the reasons above, the Ombudsman unreasonably sought far higher penalties than the circumstances of the case could have warranted and unreasonably caused Transpetrol to incur costs, first, in defending itself against their imposition and, secondly, establishing its right to set off in accordance with the established authorities
Having regard to all of the circumstances, I consider that the justice of the case warrants an order that the Ombudsman pay 50% of Transpetrol’s costs.”

Fair Work Ombudsman v Nobrace Centre Pty Ltd & Anor [2019] FCCA 1148
INDUSTRIAL LAW  – Fair work action – unpaid wages – failure to comply with s. 716 compliance notice – accessorial liability – director’s liability for company breach – reasonable excuse defence – liability found.
Fair Work Act 2009 (Cth), ss.14, 116, 539, 550, 701, 715, 716, 717

CPB Contractors Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 70
INDUSTRIAL LAW  – enterprise agreements – whether coverage clause unlawful for the purposes of s 194(ba) of the Fair Work Act – clause was not inconsistent with s 58(2) of the FW Act – s 194(ba) directed to clauses that provide for methods of election for employees or employers to opt out of enterprise agreements – clause 3.3 of the agreement did not engage s 194(ba) as it did not provide for any method of election – the making and approval of a new enterprise agreement does not constitute election – application allowed in part.
STATUTORY CONSTRUCTION – reference to secondary and extrinsic materials – when such reference is necessary to identify the context and purpose of a statutory provision

Basi v Namitha Nakul Pty Ltd [2019] FCA 743
INDUSTRIAL LAW  – proceeding alleging serious contraventions of the Fair Work Act 2009 (Cth) – where applicant alleges being underpaid and overworked in contravention of the Restaurant Industry Award 2010 and the Fair Work Act 2009 (Cth)
INDUSTRIAL LAW  – interlocutory application seeking freezing orders pursuant to r 7.32 of the Federal Court Rules 2011 (Cth) – where freezing orders were made – application for the extension of the freezing orders – principles of freezing orders – where the applicant had an arguable case for the purposes of r 7.35(1)(b) of the Federal Court Rules 2011 (Cth) – whether there was a danger that a prospective judgment would be wholly or partly unsatisfied because the respondents might either abscond or dispose of or remove their assets from Australia – whether the balance of convenience weighed against the continuation of the freezing orders – whether freezing orders lacked utility due to few assets – whether adverse publicity was a persuasive discretionary reason for refusing to extend the freezing orders – where Court was satisfied that there was a danger that any judgement obtained by the applicant would be wholly or partly unsatisfied if freezing orders were not extended – freezing orders extended until further order. Fair Work Act 2009 (Cth) ss 44, 45, 90(2), 325, 343, 345, 535, 557A

Adachi v Qantas Airways Ltd [2019] FCCA 1107
PRACTICE AND PROCEDURE – Application to strike out points of claim.
INDUSTRIAL LAW  – Adverse action claim. Fair Work Act 2009 (Cth), ss.340, 341, 361
Paragraphs 7 to 17, 24 to 26 and 49 of the Applicant’s points of claim be struck out

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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