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Employment Law and Workplace Relations Monthly Update - October 2019

04 November 2019

#Workplace Relations & Safety

Employment Law and Workplace Relations Monthly Update - October 2019

In the media

Applicants forced to give blood tests, waive privacy rights to work on Shell's QGC project
A company working on the Shell-owned Queensland Gas Corporation project tells job applicants they will not be accepted until they submit to blood tests to check if they are at risk of heart attack, high cholesterol and other conditions (31 October 2019).  More...

Taking action to make labour hire fairer
The scheme, effective from 30 October,  is the biggest reform of Victoria’s labour hire industry and introduces a new level of integrity and scrutiny to the sector by cracking down on dodgy operators that exploit, abuse or mistreat workers (30 October 2019).  More...

FWO responds to Woolworths’ self-disclosure
The Fair Work Ombudsman is shocked that yet another large, publicly listed company has admitted to breaching Australia’s workplace laws on a massive scale (30 October 2019).  More... 

Coffee Club franchisee to back-pay migrant worker
The operators of a western Sydney café will back-pay a casual waitress $36,745 and overhaul its workplace practices, after signing a Court-Enforceable Undertaking with the Fair Work Ombudsman (29 October 2019).  More...

Melbourne dental operators penalised
The former operators of a Melbourne dental practice have been penalised a total of $73,000 for underpaying a visa holder tens of thousands of dollars, following legal action by the Fair Work Ombudsman (25 October 2019).  More... 

Committee recommends crucial IR bills should be passed
The Morrison Government has welcomed a Senate Committee report which recommended two key industrial relations bills be passed by Parliament. The Ensuring Integrity and Proper Use of Worker Benefits bills will help to curb lawlessness by militant unions and provide much-needed transparency and accountability to the way members' funds are managed (25 October 2019).  More...

New toolkit to tighten gender equality
The Workplace Gender Equality Agency has launched a new online toolkit to promote gender equity throughout Australia’s business community (24 October 2019).  More...
The strategy guide and diagnostic tool can be accessed on the WGEA website at this PS News link.

Federal Court decision reaffirms that union officials must comply with federal right of entry laws
The Federal Court has ruled that union officials must hold and show a valid federal right of entry permit upon request when visiting construction sites for safety reasons (23 October 2019).  More...

Café allegedly paid workers in food and drink
The Fair Work Ombudsman has commenced legal action in Court against the operators of a Brisbane café that allegedly partially paid some of its employees in food and drink (23 October 2019).  More... 

FWO recovers $40 million for workers
The Fair Work Ombudsman’s 2018-19 Annual Report reveals a significant increase in recovered wages, record visits to our resources and firm enforcement of workplace laws. Fair Work Inspectors recovered more than $40 million for 18,000 underpaid employees during the financial year - the highest total recoveries figure in the regulator’s history (22 October 2019).  More...

Queensland’s labour hire laws
Industrial Relations Minister Grace Grace has issued a warning to Queensland’s labour hire operators, following another three successful prosecutions in the Caboolture Magistrates Court this week (18 October 2019).  More...

Federal Court penalises “serial offender” CFMMEU for enforcing “no ticket, no start” policy
The Federal Court has imposed penalties totalling $69,000 against the CFMMEU and its shop steward Kevin Pattinson for preventing an apprentice and electrician from working on a Frankston construction site because they were not members of the union (14 October 2019).  More...

Aldi blockade leads to $80,000 penalty for CFMMEU, personal payment order for organiser
The Federal Court has awarded penalties totalling $92,000 against the CFMMEU and an experienced organiser for their involvement in a blockade of Aldi’s Altona store during its construction in 2014 (11 October 2019).  More...

CFMMEU and its site delegate to face court for allegedly coercing worker to join union
The ABCC has taken legal action against the CFMMEU and its delegate James Fissenden alleging in March this year they threatened to prevent a shopfitter from working at the Sunshine Plaza Shopping Centre site in Maroochydore until he joined the union (10 October 2019).  More...

Almost 200 staff made redundant following sale of Albury Paper Mill
Operations will cease at Albury's Norske Skog paper mill, with 183 employees to lose their jobs after the company announced the sale of its Ettamogah site to Australian papermaker Visy (04 October 2019).  More...

Greater certainty for employers when hiring staff with criminal records
Changes to anti-discrimination laws have come into effect that give employers greater certainty about when they can and cannot reject job applications from people with criminal records (03 October 2019).  More...

Restaurant allegedly underpaid visa worker $150k
The Fair Work Ombudsman has commenced legal action against the operators of the Blue Moon Restaurant in western Sydney, alleging they underpaid an Indian worker they were sponsoring on a 457 skilled worker visa more than $150,000 (03 October 2019).  More...
Unpaid wages recovered for Subway employees
The Fair Work Ombudsman has recovered $81,638.82 in unpaid wages for 167 current and previous employees, following investigations into 22 Subway franchisees (01 October 2019).  More... 

Subway’s underpayment concerns realised
After months of allegations and intense media scrutiny, fresh-food franchise Subway’s underpayment concerns have finally been realised. On Tuesday, the Fair Work Ombudsman announced that it had recovered $81,638.82.  More...

Published reports articles, speeches

Department of Jobs and Small Business: Monthly Leading Indicator of Employment October 2019
The Monthly Leading Indicator of Employment (the Indicator) has fallen for the fifteenth consecutive month in October 2019, after eleven consecutive monthly rises.  More...

Australian Bureau of Statistics
24/10/2019 Labour Force, Australia, Detailed - Electronic Delivery, Sep 2019 (cat no. 6291.0.55.001
17/10/2019 Labour Force, Australia, Sep 2019 (cat no. 6202.0)
03/10/2019 Labour Force, Australia: Labour Force Status and Other Characteristics of Families, June 2019 (cat no. 6224.0.55.001)

In practice and courts

FWC: Annual report 2018–19 published
The Fair Work Commission published our annual report for the 2018–19 financial year following its tabling in the Australian Parliament (22 October 2019).  More...

FWC: Unfair dismissals benchbook updated
The Fair Work Commission has published an updated version of the Unfair dismissals benchbook.
The updated version reflects recent case law and rules changes, including information on insolvency, termination at the employer’s initiative, transferring employees, procedural fairness, and representation by lawyers and paid agents (21 October 2019).  More...

FWC: Benchbooks updated
The Fair Work Commission has published an updated versions of:
The Anti-bullying benchbook reflects recent case law and rules changes, including information on amending applications, rescheduling or adjourning matters, bias, representation by lawyers and paid agents and orders the Commission can make.
The Industrial action benchbook reflects recent case law including information on interim orders, covert industrial action and employer response action (07 October 2019).  More...

Victoria: Labour hire providers
From 30 November 2019, only labour hire providers that have been granted a licence, or have a decision pending on their application, are allowed to operate in Victoria.  More...

Cases

Australian Rail, Tram and Bus Industry Union v Railtrain Pty Ltd [2019] FCA 1740
 INDUSTRIAL LAW – accessorial liability – involvement in – aided or abetted contravention – knowingly involved – whether necessary to plead knowledge that persons employees
PRACTICE AND PROCEDURE – application for summary judgment – need for caution – striking out of pleadings – the different principles applicable

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 2) [2019] FCA 1737
 INDUSTRIAL LAW – where union officials entered site “pursuant to” s 81(3) of the Workplace Health and Safety Act 2011 (Qld) – where union officials did not produce entry permits under the Fair Work Act 2009 (Cth) – whether s 81(3) of the Workplace Health and Safety Act 2011 (Qld) creates a “State or Territory OHS right” within the meaning of s 494 Fair Work Act 2009 (Cth) – alleged contraventions of ss 494, 497 and 500 of the Fair Work Act 2009 (Cth)

Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181
 INDUSTRIAL LAW – Fair Work Act 2009 (Cth) s 351(1) – adverse action – mental disability – whether prolonged failure to attend work a manifestation of Appellant’s disability – consideration of Shizas v Commissioner of Police [2017] FCA 61; 268 IR 71 – not a manifestation – no adverse action because of Appellant’s disability
 INDUSTRIAL LAW – Fair Work Act 2009 (Cth) s 351(1) – adverse action – mental disability – mental process of decision-maker – where decision-maker did not know whether or not Appellant was ill and believed he was not– where decision maker did not perceive failure to attend work to be a manifestation of Appellant’s disability – no adverse action because of Appellant’s disability
 INDUSTRIAL LAW – Fair Work Act 2009 (Cth) s 351(2)(b) – adverse action – mental disability – whether employee could not perform inherent requirement of employment – Appellant unwilling or unable to perform duties – no adverse action because of Appellant’s disability
 INDUSTRIAL LAW – Fair Work Act 2009 (Cth) s 545 – adverse action – mental disability - compensation order – likelihood of return to work – refusal to attend independent medical examination an alternative and sufficient reason for termination – no economic loss sustained

Fair Work Ombudsman v NoBrace Centre Pty Ltd (In Liquidation) (ACN 121 556 447) & Ors (No.2) [2019] FCCA 2970
INDUSTRIAL LAW – application for imposition of pecuniary penalties – multiple contraventions of a civil penalty provision – liability established against principal contravenor which is placed in voluntary liquidation – accessory liability established against second and third respondents – accessories found liable as being involved in contraventions to differing extents – contraventions involved failure to pay minimum weekly wages, overtime, weekend loading, public holiday rates, holiday penalty rates, annual leave and leave loading – where respondents and employee participated in sham to obtain working visa and ENS visa for permanent residence – applicable principles – penalties imposed
INDUSTRIAL LAW – application for award of compensation – jurisdictional requirement that a person has contravened a civil remedy provision – findings made against principal contravenor – other respondents found to have been involved in contraventions – person involved in contravention taken to have contravened civil remedy provision – court must be satisfied it is appropriate to make order of the kind sought – applicable principles – compensation ordered
INDUSTRIAL LAW – application for orders that first and second respondent be jointly and severally liable for compensation – where accessories found liable to differing extents – whether open or appropriate to make orders that accessories are jointly liable – where not impracticable to give separate judgements against accessories for their respective liabilities for compensation and interest – orders conditioned on terms to prevent double recovery
Fair Work Act 2009 (Cth), ss.3, 44, 45, 90, 134, 323, 535, 536, 539, 545, 546, 547, 550, 557, 557A, 682, 712, 716
Fair Work Regulations 2009 (Cth), regs.3.33, 3.44, 3.36, 4.01A

Bartlett v Signostics Ltd (In Liquidation) [2019] FCCA 2989
INDUSTRIAL LAW – CIVIL PENALTY PROVISION – contravention of National Employment Standards – non-payment of untaken annual leave on termination of employment – pecuniary penalty – order for compensation
INDUSTRIAL LAW – ACCRUED JURISDICTION – contractual claims arising from applicants employment – common substratum of facts – orders for payment of amounts owed pursuant to contracts
INDUSTRIAL LAW – PECUNIARY PENALTY – where senior management involved in contravention – where forged document relied on by respondent – where sustained and deliberate conduct by respondent amounted to serious contravention
INDUSTRIAL LAW – COSTS – Indemnity costs
Fair Work Act 2009 (Cth), ss.14, 44(1), 90(2), 338(2), 539, 545, 545(1) & (2)(b), 546, 547, 557, 557A & 557B & 570(2)

Fair Work Ombudsman v Jenni International Pty Ltd & Anor [2019] FCCA 2971
INDUSTRIAL LAW – Accessorial liability – whether the Second Respondent was knowingly concerned in the First Respondent’s contraventions – contraventions of the General Retail Industry Award – underpayment of non-Australian citizen employees
Fair Work Act 2009 (Cth), ss.44, 45, 90(2), 535(1), 536(1), 545(1), 547(2), 550(1), 550(2)(c), 559
Fair Work Regulations 2009 (Cth), regs.3.32, 3.33, 3.34, 3.36, 3.37, 3.40

Construction, Forestry, Maritime, Mining and Energy Union v Asbestos Removalist Pty Ltd & Anor [2019] FCCA 2977
INDUSTRIAL LAW – application for civil penalty – first respondent in liquidation – findings as to liability of second respondent – subsequently declared bankrupt – appropriate penalty
Bankruptcy Act 1966 (Cth) ss.60, 82; Fair Work Act 2009 (Cth), ss.539, 546, 557

Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654
INDUSTRIAL LAW – pecuniary penalties – agreed contraventions – false or misleading statement about an obligation to engage in “industrial activity” – application of “no ticket, no start” philosophy – contravener knew statement was misleading, or was reckless as to that fact – analysis of the nature, gravity, character and seriousness of the contraventions – whether history of contravening conduct should inform the court’s assessment of how objectively serious the agreed contraventions were – application of “course of conduct” and “totality” principles – appropriateness of declaratory relief
Building and Construction Industry (Improving Productivity) Act 2016 (Cth) ss 5, 15
Conciliation and Arbitration Act 1904 (Cth) ss 5, 9
Fair Work Act 2009 (Cth) Pt 3-1, ss 12, 336, 340, 343, 346, 347, 348, 349, 363, 500, 539, 546, 570
Fair Work (Registered Organisations) Act 2009 (Cth)
Industrial Relations Act 1988 (Cth) s 170DF
The first respondent pay pecuniary penalties totalling $6,000.00
The second respondent pay pecuniary penalties totalling $63,000.00

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Aldi/Altona North Case) (No 2) [2019] FCA 1667
INDUSTRIAL LAW – admitted contraventions of s 348 of the Fair Work Act 2009 (Cth) (“Act”) which provides that a person must not organise or take or threaten to take any action to coerce another person to engage in industrial activity – admitted contraventions of s 346(c) of the Act which provides that a person must not take adverse action against another person because the person does not or is not or proposes not to engage in industrial activity – making of declarations – principles relating to imposition of pecuniary penalties – the relevance of previous contraventions by the respondents of industrial legislation to the penalty to be imposed – proportionality of penalty to contravening conduct – general deterrence – specific deterrence – whether a single course or multiple courses of conduct – principle of totality – whether a personal payment order should be imposed on the second respondent. Fair Work Act 2009 (Cth), ss 346, 347(b)(iv), 348, 539, 546(1) 556
The First Respondent pay the following pecuniary penalties:
(a) $40,000 in respect of its contravention of s 348 of the FW Act dealt with in declaration 3(a); and
(b) $40,000 in respect of its contravention of s 348 of the FW Act dealt with in declaration 3(c).

Ghimire v Karriview Management Pty Ltd (No 2) [2019] FCA 1627
INDUSTRIAL LAW – appeal from decision of Industrial Magistrate – where appellants had undertaken work and received no payment – where employer kept no records – consideration of record keeping obligation under s 557C of the Fair Work Act 2009 (Cth) – where employer had burden of disproving the allegation made by employees – where claim brought under the small claims procedure in the Industrial Magistrates Court – consideration of the nature of the appeal – whether the magistrate erred in misapplying the burden of proof under s 557C – whether the magistrate erred in failing to draw an adverse inference from the employer's failure to call evidence from any material witnesses – finding that the employer failed to discharge the burden of proof - appeal allowed

Fair Work Ombudsman v Westside Petroleum Retail 1 Pty Ltd & Ors [2019] FCCA 2784
INDUSTRIAL LAW – breaches of a civil remedy provision of the Fair Work Act 2009 – imposition of pecuniary penalties – relevant considerations
INDUSTRIAL LAW – accessorial liability for breaches of a civil remedy provision of the Fair Work Act 2009 – imposition of pecuniary penalties.
(1) The first respondent pay pecuniary penalties totalling $45,000

Legislation

Commonwealth

Bills

Paid Parental Leave Amendment (Work Test) Bill 2019
Assent Act no: 84 Year: 2019 28 October 2019
Amends the Paid Parental Leave Act 2010 to enable the paid parental leave work test period for a pregnant woman in an unsafe job to be moved from the 13-month period prior to the birth of her child to the 13-month period before she had to cease work due to the hazards connected with her employment and the subsequent risk to her pregnancy; and extend the permissible break in the paid parental leave work test to enable parents to have a gap of up to 12 weeks between two working days and still meet the work test.

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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