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Employment Law and Workplace Relations Monthly Update – November 2020

02 December 2020

#Workplace Relations & Safety

Employment Law and Workplace Relations Monthly Update – November 2020

In the media

Australian berry and citrus farms most at risk of having slave-like working conditions, Woolworths modern slavery report finds
Woolworths has identified 332 Australian fruit and vegetable suppliers within its supply chain where workers are at risk of slave-like conditions, as part of its first-ever review under new modern slavery laws (26 November 2020).  More...

Federal Court dismisses sick-leave appeal by unions against Qantas
Unions representing Qantas workers lose an appeal in the Federal Court to have the airline pay its workers for taking sick or carer's leave while they are stood down, with two of three justices ruling staff cannot take leave from work that does not exist (27 November 2020).  More...

Some Victorian casual workers to get sick leave, but Coalition says scheme is a job-killer
The Victorian Government will spend $5 million on designing a "secure work pilot scheme" that will provide up to five days of sick and carer's pay for casual or insecure workers in priority industries (23 November 2020).  More...

Women’s health clinic in court
The Fair Work Ombudsman has commenced legal action in the Federal Circuit Court against the operator of a women’s health clinic in Melbourne for allegedly withholding Government-funded parental leave payments from an employee (20 November 2020).  More...

Strong rise in employment and hours worked in October
Seasonally adjusted employment increased by 178,800 people (1.4 per cent) between September and October and hours worked by 1.2 per cent according to the ABS. This strong increase means that employment in October was only 1.7 per cent below March, and reflects a large flow of people from outside the labour force back into employment (19 November 2020).  More...

Federal Court imposes $336,000 in penalties over Perth Airport link unlawful industrial action
The Federal Court in Perth imposed $180,000 in penalties against the CFMMEU and three of its officials for organising a half-day strike during construction of the Forrestfield to Perth Airport rail link in December 2018 (18 November 2020).  More...

Perth franchisee penalised $230,040 for repeat offending
The Fair Work Ombudsman has secured its first penalties under the ‘serious contraventions’ provisions of the Protecting Vulnerable Workers laws, after a former Han’s Café franchisee in Perth underpaid vulnerable workers despite having previously faced Court for similar conduct (13 November 2020).  More...

This is a mark against our nation: Australia's Pacific Islanders say more protections needed for seasonal workers
Agriculture industry leaders call for an expansion of the seasonal worker program, but representatives of the Pacific Islander community want better protections first (10 November 2020).  More...

Wages recovered for Soul Origin workers
The Fair Work Ombudsman (FWO) has recovered $78,944 in unpaid wages for 230 workers following an investigation into 39 stores and a manufacturing site for salad, sandwich and coffee franchise Soul Origin across Australia (27 November 2020).  More...

Idameneo back-pays workers over $15 million
A major national medical centre operator, Idameneo (No 123) Pty Ltd, has back-paid employees $15.3 million and entered into an Enforceable Undertaking (EU) with the Fair Work Ombudsman (FWO) (10 November 2020).  More...

Security services provider signs Enforceable Undertaking
Principal security contractor Securecorp (NSW) Pty Ltd will back-pay underpaid workers after entering into an Enforceable Undertaking (EU) with the Fair Work Ombudsman (FWO) (26 November 2020).  More...

WHSmith signs Enforceable Undertaking
National food and retail company WHSmith Australia Pty Ltd has back-paid employees more than $2.2 million and entered into an Enforceable Undertaking (EU) with the Fair Work Ombudsman (05 November 2020).  More...

National Library signs Enforceable Undertaking
The National Library of Australia has entered into an Enforceable Undertaking (EU) with the Fair Work Ombudsman after underpaying employees almost $250,000 in wages and superannuation (02 November 2020).  More...

Massage parlour operator and accountants penalised
The Fair Work Ombudsman has secured total court penalties of $19,100 after a Victorian massage parlour operator admitted it underpaid a Chinese worker $13,522 and provided false records to inspectors (03 November 2020).  More...

CEPU and three officials penalised $34,600 over stoppage of works at Sydney Metro Trains Facility Site
The Federal Court has penalised the CEPU and three of its officials $34,600 for stopping work at the Sydney Metro Trains Facility Site (SMTF Site) in Rouse Hill in 2016 (09 November 2020).  More...

Published reports articles, speeches

Department of Jobs and Small Business: Monthly Leading Indicator of Employment November 2020
The Monthly Leading Indicator of Employment (the Indicator) has risen for the fifth consecutive month in November 2020 (after thirteen consecutive monthly falls). The Indicator’s rise this month – stemming from increases in the NAB Forward Orders index, the Westpac-Melbourne Institute Leading Index of Activity and Consumer Sentiment indices.  More...

How many jobs did JobKeeper keep?
James Bishop, Iris Day: Reserve Bank of Australia: 20 November 2020
In response to the sharp fall in economic activity in the early months of the COVID-19 outbreak, the Australian government announced a series of measures to support incomes and employment.  More...

Work and life in a pandemic: An update on hours of work and unpaid overtime under COVID-19
Dan Nahum; Centre for Future Work: 18 November 2020
This research reveals that almost three-quarters of Australians 'working from home' are doing at least some of it in non-work-time. The report calls for additional protections for people working from home, including limits on hours, overtime pay when relevant, allowances for extra home office expenses.  More...

ABCC Industry Update – 11 November 2020 edition
In the November edition of Industry Update, we take a look into the extension of JobKeeper, the Supporting Apprentices and Trainees wage subsidy, the increase in the building and construction minimum wage and much more.  More...

In practice and courts

Harvest Trail Services helps growers find workers for harvest jobs
From 1 November 2020, eligible job seekers may receive financial assistance of up to $2,000 for temporary working visa holders and up to $6,000 for Australians to help with the costs of travel and accommodation when they relocate to take up short-term seasonal harvest or agriculture work. HTS providers are contracted by the Australian Government and there is no cost to employers or job seekers to use their services.  More...

FWC: Changes to unpaid parental leave entitlements
On 27 November 2020, there were changes to the unpaid parental leave entitlements in the Fair Work Act. The changes include: access to up to 12 months of unpaid parental leave for parents impacted by stillbirth or infant death and access to flexible unpaid parental leave options.  More...

FWO: Boosting Apprenticeship Commencements wage subsidy
24 November 2020 – The Australian Government has announced a Boosting Apprenticeship Commencements (BAC) wage subsidy to support employers and Group Training Organisations (GTOs) employ new apprentices and trainees. The BAC wage subsidy is administered by the Department of Education, Skills and Employment.  More...

FWC: Updates to casual and overtime clauses in most awards
20 November 2020 – On 30 October 2020, the Fair Work Commission (the Commission) announced updates to the casual and overtime clauses in 97 awards. The updated clauses start from the first full pay period on or after 20 November 2020. Find out if your award is affected and what to do if your award is affected.  More...

FWC: Entitlements over the Christmas and New Year break
11 November 2020 – On this page: directing employees to take leave, employees without enough annual leave, paying employees who don’t work on a public holiday, public holidays during annual leave, working extra hours and working on public holidays, public holidays over Christmas and New Year, and JobKeeper and the holiday period.  More...

FWC: 10 modern awards extensively varied
The modern awards will be varied in three tranches during 2020. The technical and drafting matters for 10 of the awards in tranche three have been completed. The varied awards have been issued and will commence operation on 13 November 2020. To find out which awards have been varied, go to the modern awards list on the Commission's website. To see the decision relating to these awards, go here (07 October 2020).

Fair Work Commission: 1.75% increase to minimum wages
Updated 1 November 2020 – This will apply to all award wages. Increases to awards will start on three different dates for different groups of awards. See when will my award increase for details about when the new minimum wages in your award start. Most employees are covered by an award. If you’re not sure which award applies, use find my award. For anyone not covered by an award or an agreement, the new National Minimum Wage is $753.80 per week or $19.84 per hour. This applies from the first full pay period starting on or after 1 July 2020. You can read the detailed decision on the Fair Work Commission’s website.

APH Senate Inquiry
The committee was originally to report to the Senate by the last sitting day in June 2020. On 12 February 2020, the Senate granted the committee an extension to report by 3 December 2020. On 15 June 2020, the Senate granted the committee a further extension to report by the last sitting day in June 2021.  More...

Cases

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited [2020] FCAFC 205
INDUSTRIAL LAW – statutory construction – employees stood down under s 524(1) of the Fair Work Act 2009 (Cth) and under enterprise agreement because of stoppage of work for which employer could not reasonably be held responsible – exigencies of the COVID-19 pandemic – paid personal/carer’s leave or compassionate leave under ss 96 or 106 of the Act – whether employee not taken to be stood down under ss 524(3) and 525 if taking personal/carer’s or compassionate leave during period of stand down – whether taking of personal/carer’s or compassionate leave authorised by employer or otherwise authorises employee to be absent form work pursuant to s 525 – held: employees stood down not entitled to personal/carer’s leave or compassionate leave during stand down period – appeal dismissed.

Teekay Shipping (Australia) Pty Ltd v Auld [2020] FCAFC 206
INDUSTRIAL LAW – interpretation of industrial agreements – whether Full Bench of the Fair Work Commission made jurisdictional error in interpretation of enterprise agreement and modern award in holding that, read together, they contained a consultation term within the meaning of s 205 of the Fair Work Act 2009 (Cth) – where enterprise agreement and modern award did not contain all elements of consultation term required in s 205 – whether model consultation term prescribed pursuant to s 205(2) to be read to supplement or supplant existing but deficient consultation provisions in enterprise agreement and modern award – where s 205(2) provided model consultation term prescribed by reg 2.09 of the Fair Work Regulations deemed to be term of the enterprise agreement – held: model consultation term applied to exclusion of insufficient and defective terms dealing with consultation in the enterprise agreement and modern award.

Australian Manufacturing Workers' Union v Qantas Airways Limited [2020] FCCA 3184
INDUSTRIAL LAW – small claims – application for unpaid wages – Qantas Airways Limited (AWU, AMWU, CEPU) Enterprise Agreement 9 – construction of ‘bonus jump’ in clause 4B.2.3 – application dismissed.

Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2020] FCA 1694
INDUSTRIAL LAW – application for declarations that Fair Work Commission lacked jurisdiction to make arbitral award – where dispute as to whether additional steward required on vessels – where FWC determined enterprise agreement required additional steward – where terms of enterprise agreement included dispute resolution procedure providing for arbitration by FWC if matter unresolved after steps complied with – whether failure to comply with step one of dispute resolution procedure – whether factual findings by FWC as to compliance with step one gave rise to issue estoppel – whether dispute resolved by earlier agreement between parties as to manning levels on vessels – where earlier agreement did not amend enterprise agreement – consideration of arbitral jurisdiction of FWC – application dismissed.
INDUSTRIAL LAW – cross-claim by union alleging failure to give effect to arbitral award was contravention of Fair Work Act 2009 (Cth) – application allowed.

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 1662
INDUSTRIAL LAW – application by commissioner for declarations, pecuniary penalties and personal payment orders – where respondents admit contraventions – determination of appropriate quantum of penalties for union, union officials and workers – consideration of principles of proportionality in fixing penalty – whether contraventions serious – whether history of past contraventions by union and officials justify penalty at or close to statutory maximum – whether admissions by respondents support discount on penalty – whether personal payment orders should be made against officials – consideration of whether power under Building and Construction Industry (Improving Productivity) Act 2016 (Cth) to make personal payment orders – declarations and orders for pecuniary penalties made – orders not made for personal payment orders.

Retail and Fast Food Workers Union Incorporated v Tantex Holdings Pty Ltd (No 2) [2020] FCA 1644
EMPLOYMENT AND INDUSTRIAL RELATIONS – where the McDonald’s Australia Enterprise Agreement 2013 (the Agreement) provides for a 10 minute paid drink break on a 4 hour shift – where second applicant was not provided with 10 minute paid drink break – where respondent admitted contravention of s 50 of the Fair Work Act 2009 (Cth) (the Act) – where Facebook groups were used to communicate with employees – where employees had a right to take short drink or toilet breaks outside this 10 minute break – where that right is a “workplace right” for the purposes of the Act – where respondent contravened ss 340, 343 and 345 of the Act by contents of Facebook posts written by employees – penalties to be imposed – whether payment of penalties should be ordered to first and second applicants.

Fair Work Ombudsman v Saveway Store Pty Ltd & Anor [2020] FCCA 3042
INDUSTRIAL LAW – penalty hearing – failure to abide by compliance notice under the Fair Work Act 2009 (Cth) – involvement of second respondent in contraventions – appropriate penalty.(6) The First Respondent pay penalties of $24,097.50 pursuant to section 546(1) of the FW Act for committing the Contraventions.

Fair Work Ombudsman v Tac Pham Pty Ltd & Anor [2020] FCCA 3036
INDUSTRIAL LAW – penalty hearing – agreed contraventions – previous Court proceedings imposing penalties for same contraventions – contrition and cooperation demonstrated – penalties imposed.
(4) The first respondent pay penalties of $191,646 pursuant to s.546(1) of the Act for committing the Contraventions and Serious Contraventions.(5) The second respondent pay penalties of $38,394 pursuant to s.546(1) of the Act for her involvement in the Contraventions and Serious Contraventions.

Bodycoat v It Blows Air Con Pty Ltd Trading As IBAC Plumbing [2020] FCCA 3033
INDUSTRIAL LAW – small claims matter – whether the applicant is entitled to redundancy pay – whether the applicant is entitled to payment in lieu of notice – judgment for applicant.
(3) Pursuant to ss.545(2)(b) and 548 of the Fair Work Act 2009 (Cth), the respondent pay the applicant the amount of $20,000 as payment in lieu of notice of termination and redundancy within 90 days of the date of these orders.

O'Connor v Setka [2020] FCAFC 195
INDUSTRIAL LAW – appeal from judgment dismissing an application under s 164 of the Fair Work (Registered Organisations) Act 2009 (Cth) – consideration of the Court’s power to make an order giving directions for the performance or observance of union rules – internal membership demarcation dispute between divisions of the union involving proper construction of union rules – appeal allowed.
UNION RULES – principles of construction – rules amended from time to time – internal inconsistencies and redundancies – whether regard may be had to deleted or redundant rules. 

Findley v Mss Security Pty Ltd & Ors (No.2) [2020] FCCA 3029
INDUSTRIAL LAW – costs – respondents seeks costs on an indemnity basis or party/party basis – respondents seeks costs be taxed under part 40 of the Federal Circuit Court Rules 2001 – Calderbank offer made to the respondent – Calderbank offer refused – repudiation of Calderbank offer unreasonable – costs awarded on an indemnity basis.

Augusta Ventures Limited v Mt Arthur Coal Pty Limited [2020] FCAFC 194
REPRESENTATIVE PROCEEDINGS – whether the Court has power to make an order of security for costs sought against funder in industrial class action – whether the Court should exercise its discretion to make such an order.
INDUSTRIAL LAW – purpose of s 570 of the Fair Work Act 2009 (Cth) – importance of “no costs” jurisdiction brought about by s 570 to questions of power and discretion to award security for costs.
COSTS – consideration of the character of a security for costs order – consideration of the consequences of non-compliance with such an order.

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192
INDUSTRIAL LAW – where head contractor failed to comply with request of industrial association to provide additional amenities – whether head contractor engaged in industrial activity” within the meaning of s 347(b)(iv) of the Fair Work Act 2009 (Cth) – whether s 347(b)(iv) extends to lawful requests or directions of an industrial association which are unrelated to matters concerning freedom of association – whether industrial activity confined to rights of participation – whether industrial association engaged in “adverse action” so as to give rise to s 346(b) – whether industrial association coerced head contractor to engage in industrial activity contrary to s 348.
STATUTORY CONSTRUCTION – the need to construe a provision in its context and to give effect to objects and purposes – the circumstances in which reference may be made to extrinsic materials, including an explanatory memorandum.

Kaur v Bangari and Karyal Pty Ltd trading as India Gate Warrnambool & Anor [2020] FCCA 2961
INDUSTRIAL LAW – judgment in default for underpayments, demands for money and record keeping contraventions – penalties – respondents claiming applicant worked voluntarily as a chef 20 hours per week for seven months – respondents paying the applicant nothing for her work – respondents exploiting the applicant as a person seeking a 457 visa.
(1) Pursuant to s.546(1) of the Fair Work Act 2009 (“the Act”), the first respondent pay penalties for its contraventions of the Act in the amount of $126,000.
(2) Pursuant to s.546(1) of the Act, the second respondent pay penalties for his contraventions of the Act in the amount of $70,560.

Legislation

Commonwealth

Act Compilation

Paid Parental Leave Act 2010
24/11/2020 – Act No. 104 of 2010 as amended 

Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Act 2020
26/11/2020 – Act No. 105 of 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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