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Employment Law and Workplace Relations Monthly Update – May 2021

10 June 2021

#Workplace Relations & Safety

Employment Law and Workplace Relations Monthly Update – May 2021

In the media

Former Brisbane fast food operator penalised
The Fair Work Ombudsman has secured a court-ordered penalty against the former operator of a fast food outlet in Brisbane (28 May 2021).  More... 

ABCC pursues pay for Victorian apprentice
The ABCC has commenced legal action in the Federal Circuit Court against Jake Gray’s Carpentry alleging they failed to comply with two statutory notices during an ABCC investigation into the underpayment of an apprentice (27 May 2021).  More...

Sunshine Coast business in court
The Fair Work Ombudsman has commenced legal action in the Federal Circuit Court against the operator of a combination fresh food retailer and café in Maroochydore, Queensland (25 May 2021).  More...

RSPCA NSW signs enforceable undertaking
The NSW branch of The Royal Society for the Prevention of Cruelty to Animals will back-pay staff more than $220,000 under an enforceable undertaking with the Fair Work Ombudsman (20 May 2021).  More... 

Unemployment rate falls to 5.5 per cent in April
The seasonally adjusted unemployment rate fell by 0.2 percentage points to 5.5 per cent between March and April 2021 according to the ABS. The unemployment rate is now 0.2 percentage points (or 33,000 people) above the start of the pandemic (20 May 2021).  More...

Court orders payment of penalty to victim of CFMMEU unlawful picket and NSW police
The Federal Court has made final orders in the case brought by the ABCC against the CFMMEU and its officials concerning Sydney crane company Botany cranes (19 May 2021).  More...

Queensland companies hit with sanction and formal warning
A Queensland construction company has been given a one-month sanction preventing it from tendering for Australian Government-funded work and another company has been issued a formal warning following ABCC investigations. MCP (AUS) Pty Ltd subject to exclusion sanction (17 May 2021).  More...

Distribution workers allegedly underpaid over $360,000
The Fair Work Ombudsman has commenced action under the ‘serious contravention’ provisions of the Protecting Vulnerable Workers laws, alleging the underpayment of 30 migrant employees in Sydney (17 May 2021).  More... 

ABCC alleges CFMMEU officials breach right of entry laws at QPAC theatre site in Brisbane
The ABCC has commenced proceedings in the Federal Circuit Court against the CFMMEU and three of its officials alleging right of entry contraventions at the Queensland Performing Arts Complex construction site (05 May 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 eleventh consecutive month in May 2021. The Indicator’s rise this month is attributed to three of its five components activity. Click here to read more.

In practice and courts

FWO: Serving you the right tools to help you at work
If you work in the fast food, restaurant, or cafe industries, we have interactive tools to help you work out your entitlements. Click here for more information.

FWC: Four yearly review – social services industry award decision issued
A full bench of the Fair Work Commission issued a decision in relation to substantive issues claims in the Social, Community, Home Care and Disability Services Industry Award 2010. A summary of the decision is available on the summaries of significant decisions page on the Commission's website. Read more here.

Commonwealth Parliamentary Review now open for submissions and interviews: Sex discrimination
The AHRC commenced inviting 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.

APH Senate inquiry
On 15 June 2020, the Senate granted the committee a further extension to report by the last sitting day in June 2021. Click here to read more.

Cases

The FWC Bulletin
Volume 19/21, 27 May 2021
Volume 18/21, 20 May 2021
Volume 17/21, 13 May 2021
Volume 16/21, 6 May 2021

Lal v Biber [2021] FCCA 959
INDUSTRIAL LAW – breach of terms and conditions – underpayment of entitlements – Modern Award rates – visa work requirements – business liquidation – business record keeping – contract – contraventions – application allowed.

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Botany Cranes Case) (No 4) [2021] FCA 525
INDUSTRIAL LAW – power of Court to order payment of part of pecuniary penalty imposed on contravener to third party in addition to Commonwealth pursuant to Building and Construction Industry (Improving Productivity) Act 2016 (Cth) s 81(5) – where third party is police force deployed to keep the peace or individual who suffered distress and hurt to feelings caused by contravention.
INDUSTRIAL LAW – whether non-indemnification or personal payment order can be imposed on individual contravener where applicant did not apply for or seek such order – whether application for penalty under s 81(1)(a) implicitly includes non-indemnification or personal payment order – whether necessary to achieve deterrence including that sting or burden of penalty fall on individual.
The parties raised no issue with the form of the draft orders that I provided to them on 22 April 2021 for consideration. In addition to those orders, I will make orders, reflecting these reasons, that the Union pay out of the $500,000 penalty imposed for its multiple contraventions of ss 47(1) and 52(a) on 25 January 2019, $2,500 to Mrs Hodges and $15,000 to the New South Wales Police Force.

Hazell v Sewell [2021] FCAFC 76
INDUSTRIAL LAW – statutory interpretation – construction of Live Performance Award 2010 – where employer in live performance industry employed disc jockey as a casual to work usually at private functions – whether “performance” as defined had to be open to general public for Award to apply – held: Award applied where employer of disc jockey received payment or benefit for performance.
Fair Work Act 2009 (Cth) ss 536, 570.

Joseph v Parnell Corporate Services Pty Ltd [2021] FCAFC 67
INDUSTRIAL LAW – appeal and cross-appeal – claims arising from non-payment of employment entitlements – cross-claim arising from damage caused by breaches of employment obligations – secondment of employee to related foreign corporation – whether claims for unpaid entitlements inure as against Australian employer or foreign second employer – whether non-payment of certain entitlements contravened Fair Work Act 2009 (Cth) – whether primary judge erred in failing to make findings concerning alleged contraventions – whether primary judge erred by not imposing civil penalties for alleged contraventions – where limited power in proceedings in relation to a matter arising under the Fair Work Act to order that costs incurred by one party be paid by another, whether primary judge erred in awarding costs to respondents – whether cross-claim was a proceeding in relation to a matter arising under the Act – whether primary judge erred in calculating entitlement to long service leave – whether primary judge erred in finding that two payments made in settlement of third-party litigation were reasonably recoverable as damages for breach of employee’s duties – whether a third such payment ought also to have been recoverable – whether circumstances warranted a single, net judgment.
CONTRACT – termination of employment for misconduct – settlement of proceedings instituted by third parties in consequence of employee’s misconduct – whether settlement amount reasonably recoverable from employee as damages.
The appeal be allowed in part. The cross-appeal be allowed.
The orders of the Court made on 17 June 2020 be set aside and replaced by the following orders:
1) Judgment for the respondents/cross-claimants in the amount of USD930,123.50 inclusive of pre-judgment interest.

Legislation

Commonwealth

Regulations

Fair Work and Other Legislation Amendment Regulations 2021
14/05/2021 – this instrument amends the Fair Work Regulations 2009 and the Federal Court and Federal Circuit Court Regulation 2012 and specifies the ways in which the Casual Employment Information Statement may be delivered to employees and a manner in which applicants may indicate that they want the small claims dispute resolution process to apply to a casual conversion dispute, and sets the applicable filing fee in the Federal Circuit Court of Australia for such disputes.

Gazette

Casual Employment Information Statement – May 2021
20/05/2021 – employers must give this document to new casual employees when they start work. Transitional rules apply for existing employees.

NSW

Bills revised following amendment in Committee – 12 May 2021
Payroll Tax Amendment (Jobs Plus) Bill 2021

Bills introduced Government – 7 May 2021
Payroll Tax Amendment (Jobs Plus) Bill 2021
Tax Administration Amendment (Combating Wage Theft) Bill 2021

Victoria

Acts
Industrial Relations Legislation Amendment Act (Vic)
Act Number: 14/2021. Date of assent: 11 May 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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