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Employment Law and Workplace Relations Monthly Update - May 2020

02 June 2020

#Workplace Relations & Safety

Employment Law and Workplace Relations Monthly Update - May 2020

COVID-19 update

Fears for 800,000 jobs as construction and tourism say there will be no economic 'snap back'
With no "snap-back" in sight, leaders in construction and tourism are warning of swathes of further job losses after JobKeeper expires at the end of September (29 May 2020).  More...

COVID-19 workplace agreements limited
The Attorney-General has issued a Regulation under the Fair Work Act to limit to 12 months any changes made to enterprise agreements in response to the coronavirus pandemic  (18 May 2020).  More...

New rules for staff changes in pandemic
The APSC has issued a new Circular dealing with staffing mobility arrangements in response to COVID-19. The focus of Agencies and employees should be on the continued delivery of critical functions to the Australian public, as well as ensuring workplaces are safe for all employees, the Circular says (18 May 2020).  More...

APSC sets scene for return to offices
The Australian Public Service Commission (APSC) has issued a Circular calling on Agency heads to implement a transition plan to return employees to their usual workplaces in the wake of the COVID-19 pandemic (14 May 2020).  More...

Working from home in the COVID-19 lockdown
Michael Dockery, Sherry Bawa: Bankwest Curtin Economics Centre: 08 May 2020
This briefing paper reviews research on working from home and how it affects workers and families to offer some insights on the potential benefits and pitfalls of this COVID-19 induced shift in working patterns.  More...

FWC: Online Jobkeeper disputes benchbook launched
The Jobkeeper disputes 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 online Jobkeeper disputes benchbook is now available on our website (25 May 2020).  More...

Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association [2020] FCA 682
INDUSTRIAL LAW — application for interlocutory injunction in the nature of an anti-suit injunction — where respondent applied to Fair Work Commission to arbitrate a dispute about the stand down of licensed aircraft maintenance engineers during the global pandemic, pursuant to dispute resolution clause in enterprise agreements and, after application had been fixed for hearing, applicant commenced proceeding in this Court in connection with same subject matter — where applicant sought interlocutory relief preventing Commission from taking steps, or requiring applicant to take steps, in Commission proceeding, pending resolution of Court proceeding — whether prima facie case for relief — whether balance of convenience and interests of justice favour orders sought. Judiciary Act 1903 (Cth) s 39B; Fair Work Act 2009 (Cth) ss 524(1)(c), 562

Commonwealth legislation

Aged Care Legislation Amendment (Emergency Leave) Bill 2020
Introduced HR 13/05/2020 - Amends the Aged Care Act 1997 (the Aged Care Act) and the Aged Care (Transitional Provisions) Act 1997 (the Transitional Provisions Act) to introduce a new type of leave that will enable approved providers to remain eligible for residential care subsidy in declared emergency situations.  More...

Fair Work Amendment (COVID-19) Bill 2020
Introduced Senate 12 May 2020
The Bill provides 14 days paid COVID-19 leave to all workers, including part-time, casual and gig economy workers. Paid COVID-19 leave will be added to the National Employment Standards which sets out minimum standards that cannot be displaced.  More...

NSW legislation

Regulations and other miscellaneous instruments
Industrial Relations (Public Sector Conditions of Employment) Amendment (Temporary Wages Policy) Regulation 2020 (2020-235) — published LW 29 May 2020

In the media

Opinion: No losers, a consensus and the new BFF: What Morrison's Government has planned on jobs Analysis
The pandemic may have shifted the emphasis to creating jobs, but the government will still be very wary of doing anything to upset those already in a job, writes David Speers (31 May 2020).  More...

Opinion: Australia's industrial relations system 'needs repair not replacement' Analysis
Industrial relations reform is being touted as a key contributor to Australia's post COVID-19 economic recovery, but recent reviews have found the system "is relatively good" (30 May 2020).  More...

ABCC court action sees building director penalised $54,000 for ‘wage theft’
The Federal Circuit Court has imposed penalties totalling $54,000 against the former director of Victorian building company, SWAT Building Systems (29 May 2020).  More...

Court decision spurs casual work definition plea
A recent Federal Court decision reignites the discord between unions and employer groups on the labelling of ‘casual’ work. On the transport employer side, the National Road Transport Association (NatRoad) says the decision negatively impacts businesses and calls on the federal Government to provide greater clarity via law reform (25 May 2020).  More...

Federal court ruling on casual entitlements could be appealed by Government as industry groups voice concern
If you're one of more than 1 million casual workers who do regular shifts rostered in advance, a court has just ruled you could be entitled to annual leave, sick leave and other entitlements full-time employees get.  More...

Fast food award decision practical and in best interests of all concerned
The Fair Work Commission’s decision to vary the Fast Food Industry Award to increase flexibility for employers and employees during the COVID-19 crisis is very welcome. The new flexibilities relate to part-time employment and the taking of annual leave (20 May 2020).  More...

Sushi operators hit with record penalties
The Federal Court has imposed record penalties of $891,000 against the operators of three Hero Sushi takeaway outlets for underpaying workers and providing false records to the FWO (18 May 2020).  More... 

ABCC alleges CFMMEU officials ignored safety directives at Westconnex Stage 2 site
The ABCC has filed Federal Circuit Court proceedings against the CFMMEU and two of its officials alleging they ignored a safety request and acted in an improper manner at the Westconnex Stage 2 site in Sydney in 2019 (15 May 2020).  More...

Slavery reporting deadline extended for companies
The Federal Government has given companies including insurers a three-month deadline extension for reporting on actions to address modern slavery risks, while calling for increased vigilance on the issue during the COVID-19 pandemic (11 May 2020).  More...

Contract carpentry business faces court
The Fair Work Ombudsman has commenced legal action in Brisbane’s Federal Circuit Court against Queensland-based contract carpentry business Althaus Homes Pty Ltd, and its sole director, Mr Ronald Alexander Althaus (08 May 2020).  More...

Published - reports, articles, speeches 

ABCC: Industry Update – 14 May 2020 Edition
With billions of dollars of infrastructure projects underway, the May edition of Industry Update steps you through the Building Code and provides valuable advice to contractors considering tendering for Commonwealth-funded building work.  More...

Department of Jobs and Small Business: Monthly Leading Indicator of Employment May 2020
The Monthly Leading Indicator of Employment (the Indicator) has fallen for the sixth consecutive month in May 2020, after three consecutive monthly rises (following trend revisions). The reversal in the Indicator’s recent monthly movements stems from the global economic disruption, arising from the worldwide COVID-19 epidemic.  More...

In practice and courts

Fair Work Ombudsman: Translate coronavirus & Australian workplace laws information into your language
We can help you understand your rights and responsibilities at work during the coronavirus outbreak. On this page, you'll find information about options for workplaces affected by coronavirus (May 2020).  More...

FWC: 9 modern awards extensively varied
The technical and drafting matters for the second tranche of awards have been completed. The varied awards were published in advance and the next group commenced operation on 29 May 2020. To find out which awards have been varied, and to access the new versions of the awards, go to the Modern awards list (29 May 2020).  More...

FWC: 20 modern awards extensively varied
The technical and drafting matters for the second tranche of awards have been completed. The varied awards were published in advance and the third group commenced operation on 4 May 2020. To find out which awards have been varied, go to the Modern awards list (04 May 2020).  More...

Changes to the Fair Work Commission Rules 2013 & forms updated
The Fair Work Commission has registered the Fair Work Commission (Miscellaneous Measures) Rules 2020 (Rules Amendment). Which amend the Fair Work Commission Rules 2013 (Rules) with effect from 1 May 2020. Updated forms incorporating the amendments have been published on the Forms page of our website. (01 May 2020).  More...

FWC: 31 modern awards extensively varied
The modern awards will be varied in 3 tranches during 2020. The technical and drafting matters for the second tranche of 31 awards have been completed. The varied awards have been issued and will commence operation on 4 May 2020 for the manufacturing section. Refer to the changes here Modern awards list.  More...

New Government Consultations

Improving protections of employees’ wages and entitlements: further strengthening the civil compliance and enforcement framework
The discussion paper outlining a range of reform options had been released and submissions were now being sought from all interested stakeholders to help inform any future policy changes. Submissions can be made by email to IRconsultation@ag.gov.au. Update: The industrial relations consultation process is currently paused due to disruptions caused by COVID-19. The process will recommence in due course.  More...

APH Senate Inquiry
Status: Accepting Submissions Date Referred: 13 November 2019 Submissions Reporting Date: 25 June 2020.  More...

Cases

Australian Building and Construction Commissioner v SWAT Building Systems Pty Ltd (In Liq) & Anor [2020] FCCA 1360
INDUSTRIAL LAW – Penalties – corporate employer in liquidation – sole director having accessorial liability – belated admissions – no evidence of genuine remorse – long term failure to pay the unpaid wages – need for general and specific deterrence. Corporations Act 2001, s.471B; Fair Work Act 2009, ss.44, 45 323, 340(1)(a)(i), 536(1), 541(1), 546(1), 546(3)(a), 547(2), 547(3), 557 

Lamont v University of Queensland (No 2) [2020] FCA 720
 INDUSTRIAL LAW – employment – whether adverse action taken by respondents within s 342(1) of the Fair Work Act 2009 (Cth) (FWA) – whether adverse action taken against applicant because applicant exercised workplace rights in contravention of s 340(1) of the FWA – whether University liable under s 793 of the FWA for adverse action engaged in by officials – allegations of contraventions of s 340(1) of the FWA upheld in part – compensation awarded under s 545 of the FWA
INDUSTRIAL LAW – employment – whether University breached enterprise agreements
CONTRACT – whether University breached implied terms of contract of employment. The first respondent pay the applicant $15,000 by way of compensation for loss arising from the first respondent’s contraventions of s 340(1) of the Fair Work Act 2009 (Cth).

 Yang v DS Shopfitters Pty Ltd & Ors [2020] FCCA 84
INDUSTRIAL LAW – Applicant claims underpayments under and breach of Joinery and Building Trades Award 2010, alternatively, breach of oral agreement – Applicant injured whilst working on public holiday – whether Applicant was covered by the Award– were pay slips provided – evidence regarding oral agreement of employment – dispute regarding the Applicant’s wages – Applicant was directed to work on-site – whether Applicant covered by the Award – whether the Applicant was constructively dismissed from his employment – whether other alleged contraventions of modern award or Fair Work Act 2009 (Cth) made out – whether adverse action against employee because of workplace right – accessorial liability of respondents. 5) ORDERS that DS Shopfitters pay Mr Yang the sum of $30,373.

WorkPac Pty Ltd v Rossato [2020] FCAFC 84
INDUSTRIAL LAW – application by an employer for declarations that an employee could not claim the National Employment Standards entitlements to paid annual leave, personal/carer’s leave and compassionate leave because he was a casual employee within the meaning of ss 86, 95 and 106 of the Fair Work Act 2009 (Cth) (the FW Act), and could not claim the corresponding entitlements under the applicable enterprise agreement because he was a “Casual Field Team Member” (casual FTM) – consideration of the character of the employee’s employment – consideration of the expression “firm advance commitment” used in some authorities in relation to casual employment – employee not a casual employee for the purposes of the FW Act or a casual FTM under the enterprise agreement.
RESTITUTION – employer paid employee at a flat hourly rate in accordance with contracts of employment, which the employer claimed included an identifiable casual loading – employer claimed that if the Court found that the employee was not a casual employee for the purposes of the FW Act or a casual FTM under the enterprise agreement, it was entitled to restitution of the casual loading as the employee was unjustly enriched – employer sought restitution on the grounds of mistake and failure of consideration – restitution not available.
INDUSTRIAL LAW – employer claimed that if the Court found that the employee was not a casual employee for the purposes of the FW Act or a casual FTM under the enterprise agreement, it was entitled to bring into account amounts it paid to him as remuneration against the entitlements he claimed – whether the employer was entitled to have some portion of its payments of remuneration to the employee brought into account in discharge of its obligations to pay the entitlements he claimed – consideration of when an employer’s payments made under contract to an employee may operate to discharge its statutory obligations to the employee – employer’s payments of wages were not for the purpose of discharging statutory obligations to give the employee paid leave entitlements – consideration of reg 2.03A of the Fair Work Regulations 2009 (Cth) – employer not entitled to bring amounts into account. 

Fair Work Ombudsman v HSCC Pty Ltd [2020] FCA 655
INDUSTRIAL LAW – agreed statement of facts – agreement as to penalties to be imposed – Court may approve if appropriate
INDUSTRIAL LAW – quantification of penalties – matters to be taken into account – deterrence – need for specific and general deterrence – fast food industry – production of falsified records – separate companies employing separate employees but engaging in like conduct. Fair Work Act 2009 (Cth) s 44, 45, 90, 550, 535, 536, 545, 546; Fair Work Regulations 2009 (Cth) r 3.44

Mc Innes v Aegis AC Pty Ltd [2020] FCCA 1142
INDUSTRIAL LAW – Awards – interaction between contractual payments and award obligations – whether nature of contractual payments met obligations under award – nature of industrial law ‘set off’ – effect of payment of profit share component – profit share component not in the nature of a payment of an award entitlement. (1) Within 30 days the Respondent pay the Applicant the amount of $20,000. The Applicant claims that a contravention of the Building and Construction Award 2010 (‘the Award’) occurred during the term of his employment as an asbestos removalist for the respondent

Kernaghan v Neffray Pty Ltd & Ors [2020] FCCA 1141
INDUSTRIAL LAW – Awards – Road Transport (Long Distance Operations) Award 2010 – Methods of calculating wages under award – whether ‘driving time’ alone the basis of remuneration – operation of ‘guaranteed minimum’ rate provision – wages calculated on ‘driving time’ provided the amount exceeds ‘guaranteed minimum’.
INDUSTRIAL LAW – Awards – Interaction between contractual payments and award obligations – whether nature of contractual payments met obligations under award – nature of industrial law ‘set off’ – application of principles to unusual terms of Road Transport (Long Distance Operations) Award 2010. Fair Work Act 2009 (Cth), ss.14, 45, 539, 545, 546. Road Transport (Long Distance Operations) Award 2010, cls.3, 13, 14, 20, 22, 23, 24.

Fair Work Ombudsman v United Petroleum Pty Ltd [2020] FCA 590
INDUSTRIAL LAW – validity of notice issued under s 712(1) of the Fair Work Act 2009 (Cth) (Act) – inspector appointed under Act – inspector issued notice under s 712(1) requiring production of certain documents – notice stated that purpose of production of documents was to investigate notice recipient’s compliance as “responsible franchisor entity” pursuant to s 558B of the Act – notice provided broad background to franchisee’s alleged primary contraventions, but did not particularise the primary statutory contraventions – application by Fair Work Ombudsman for declarations and orders in respect of notice recipient’s failure to provide documents – whether notice is valid – whether notice enables the recipient (and the Court) to assess whether the notice validly requires the specified documents to be produced. Held: application dismissed – notice invalid – notice failed to adequately particularise primary contraventions by the franchisee – notice recipient and Court are not able to assess whether the notice validly requires the specified documents to be produced

Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 595
INDUSTRIAL LAW - application by first respondent to set aside originating application - whether Federal Court lacks jurisdiction to hear claim - whether proceedings are an abuse of process - where enterprise agreement sets out terms of dispute resolution procedure - where dispute referred to Fair Work Commission for arbitration - where applicant sought to appeal to Full Bench of FWC - where Full Bench determined permission required to appeal primary decision - where permission refused - whether Full Bench made final determination as to jurisdictional questions - application dismissed. Fair Work Act 2009 (Cth) ss 186, 587, 595, 604, 607, 738, 739; Federal Court Rules 2011 (Cth) r 13.01

Tran v Macquarie University (No.3) [2020] FCCA 1010
INDUSTRIAL LAW –Contravention under s.340 of the Fair Work Act 2009 (Cth) – response to the Respondent’s final submissions re remedy (RFS) – application for reinstatement – approach to compensation – Applicant exercised a workplace right – where the Respondent contravened the Enterprise Agreement – whether or not the breaches were deliberate – orders made. (1) The Respondent pay pecuniary penalties as follows: a total of $45,000.00. 

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Kentz Pty Ltd [2020] FCA 581
INDUSTRIAL LAW – application for a declaration that the respondent contravened s 50 of the Fair Work Act 2009 (Cth) (the Act) and consequent compensation – where the applicant and respondent are parties to a Greenfields agreement made under the Act (the Agreement) – whether certain employees were entitled to prescribed allowances under the Agreement – consideration of proper construction of the terms of the agreement – application granted

Legislation

Queensland
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.

Victoria

Regulations

Owner Drivers and Forestry Contractors Amendment Act 2019 (Vic)
Date of commencement: 1 May 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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