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Employment Law and Workplace Relations Monthly Update – October 2020

11 November 2020

#Workplace Relations & Safety

Employment Law and Workplace Relations Monthly Update – October 2020

In the media

7-Eleven partnership improves compliance
Major convenience and fuel outlets franchisor 7-Eleven Stores Pty Ltd has made substantial improvements to its payroll and time-recording systems as part of a three-year compliance partnership with the Fair Work Ombudsman. Five years after the revelations 7-Eleven was grossly underpaying its staff, the convenience store chain has made at least $10 million worth of improvements to ensure employees are paid correctly and understand their rights (30 October 2020).  More...

'Insecure' work fuelling wage theft claims as another retailer faces class action
As Drakes Supermarkets becomes the latest retailer to face a class action over underpayment allegations, think tank the Australia Institute says a culture of "insecure" work is driving claims against employers (28 October 2020).  More...

Security company in court
The Fair Work Ombudsman has commenced legal action in the Federal Circuit Court against the operators of a Victorian security firm (28 October 2020).  More...

Operators of Barry Cafe penalised
The Fair Work Ombudsman has secured a total of $232,545 in penalties in Court against the company that operates ‘Barry Café’, in the Melbourne suburb of Northcote, and two of its directors after they deliberately underpaid 73 staff members more than $180,000 (22 October 2020).  More...

No super, no sick leave and after 18 years, university teacher Stephen Baker has 'nothing to show'
The wage theft scandal that has engulfed the tertiary sector this year is now moving to the Federal Court, with the National Tertiary Education Union and four former staff pursuing private university JMC Academy (16 October 2020).  More...

ABCC alleges CFMMEU official engaged in threatening behaviour at Morphettville Park Sports Club construction site
The Australian Building and Construction Commission has commenced Federal Court proceedings against the CFMMEU and one of its officials, Michael Jackson, alleging Mr Jackson acted in an improper manner during construction of the Morphettville Park Sports Club in Adelaide (15 October 2020).  More...

Farmers vie to keep staff as 'tables turn' putting backpackers in demand
From flexible work to recreation, farmers are finding innovating ways to keep seasonal workers and backpackers on the payroll for longer, as the estimated 26,000 staff shortage looms (15 October 2020).  More...

More than $123 million recovered for workers
The Fair Work Ombudsman’s 2019-20 Annual Report reveals a record sum of money recovered for underpaid workers across the country during the past financial year (15 October 2020).  More...

Online directory business in court
The Fair Work Ombudsman has commenced legal action in the Federal Circuit Court against the operators of an online business based in the Melbourne suburb of Cranbourne North (13 October 2020).  More...

CFMMEU officials penalised $292,200 over Palmerston Police Station intimidation
The Federal Court has penalised the CFMMEU and three of its officials $292,200 for attempting to shut down construction at the Palmerston Police Station site in May 2018 (02 October 2020).  More...

Chemist Warehouse partnership improves compliance
Major pharmacy franchise CW Retail Services Pty Ltd (Chemist Warehouse) has back-paid employees and improved its payroll practices following a three-year compliance partnership with the Fair Work Ombudsman (02 October 2020).  More...

Electrical services business in court
The Fair Work Ombudsman has commenced legal action in the Federal Circuit Court against an electrical services business based in Brisbane (01 October 2020).  More...

Maritime union offers deal to end Port Botany wharf industrial action before tribunal hearing
The maritime union is offering a peace deal to end its industrial action at Sydney’s Port Botany after the federal government accused it of extortion. The deal is conditional on Patrick Terminals agreeing to a 2.5 per cent pay rise for workers when the parties go before the Fair Work Commission on Wednesday for a conciliation hearing (30 September 2020).  More...

Published reports articles, speeches

The future of jobs report 2020
This report maps the jobs and skills of the future, tracking the pace of change. It aims to shed light on the pandemic-related disruptions in 2020, contextualised within a longer history of economic cycles and the expected outlook for technology adoption, jobs and skill (20 October 2020).  More...

Department of Jobs and Small Business: Monthly Leading Indicator of Employment October 2020
The Monthly Leading Indicator of Employment (the Indicator) has risen for the fourth consecutive month in October 2020 (after eight 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...

Employment falls by 30,000 people in September
ABS Labour Force, Australia (15 October 2020).  More...

ABCC Industry Update – 15 October 2020 edition
For the October edition of Industry Update we take an in-depth look into Right of Entry, featuring case studies and a need to know guide. Also featured are our upcoming wages and entitlement activities as well as recent court outcomes.  More...

In practice and courts

FWC: 10 modern awards extensively varied
The modern awards will be varied in 3 tranches during 2020. The technical and drafting matters for 10 of the awards in tranche 3 have been completed. The varied awards have been issued and will commence operation on 13 November 2020 (07 October 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, click here

FWC: 2 modern awards extensively varied
The modern awards will be varied in 3 tranches during 2020. The technical and drafting matters for the Educational Services (Teachers) Award 2010 and the General Retail Industry Award 2010 have been completed. The varied awards were published in advance and commence operation on 1 October 2020 (01 October 2020).  More...

Fair Work Commission: 1.75 per cent increase to minimum wages
Updated 1 November 2020 - This will apply to all award wages. Increases to awards will start on 3 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 here.

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

Connelly v Bluescope Steel (AIS) Pty Ltd (No.3) [2020] FCCA 2902
INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – Assessment and award of compensation payable to Applicant under s.545 of the Fair Work Act 2009 (Cth) for Respondent’s breach of s.323 subsequent to the answers to the questions considered in Benge & Anor v Bluescope Steel (AIS) Pty Ltd (No. 2) [2020] FCCA 515 – consideration of the principle of mitigation of damages – assessment of any pecuniary penalty and payment of pecuniary penalty to the Applicant personally under s.546(3)(c) of the Fair Work Act 2009 (Cth).

Fair Work Ombudsman v Joseph & Anor [2020] FCCA 2910
INDUSTRIAL LAW – Fair Work Proceedings – Temporary Business Entry (Class UC) Temporary Work (Skilled) (subclass 457) visa – contravention of civil penalty provisions – wage theft – 20 per cent discount for early contrition – the Court imposes a total pecuniary penalty on the first and second respondents – orders made
Fair Work Act 2009 (Cth), s.718A(5); Fair Work Regulations 2009 (Cth).

Fair Work Ombudsman v Zurel Pty Ltd & Anor [2020] FCCA 2884
INDUSTRIAL LAW – Application for civil penalty – penalty hearing – failure to satisfy Compliance Notice under Fair Work Act 2009 (Cth) – agreement on penalty and necessary declarations – appropriate penalty
Fair Work Act 2009 (Cth), ss.45, 535, 536, 539, 545, 546, 550, 557, 716
General Retail Industry Award 2010; Fair Work Regulations 2009 (Cth), reg.3.46.

Fair Work Ombudsman v Malevi Pty Ltd & Ors [2020] FCCA 2875
INDUSTRIAL LAW – Admitted contraventions involving underpayments, record keeping and adverse action in a café business – declarations made on admissions – accessorial liability – penalties – consent orders for education, audit and workplace notice – adverse publicity – alleged fall in turnover due to publicity – effect of the COVID-19 pandemic – claim there should be no financial penalty because the respondents have “suffered enough”. Fair Work Act 2009, ss.45, 340, 535(1), 539, 546(2), 557
Fair Work Regulations 2009, regs.3.32, 3.33(1)(a), 3.33(1)(b), 3.33(2).

Fair Work Ombudsman v Corporation Sun Pty Ltd & Anor [2020] FCCA 2849
INDUSTRIAL LAW – Penalty hearing – non-compliance with compliance notice – factors for consideration – cooperation shown following commencement of litigation – penalty in mid-high range imposed
Crimes Act 1914 (Cth), s.4AA; Fair Work Act 2009 (Cth), ss.3, 45, 539, 545, 546, 550, 570, 712, 716.

Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177
INDUSTRIAL LAW – civil penalties – agreed contraventions – false or misleading statement about an obligation to engage in “industrial activity” – determination of appropriate penalty – principles relating to imposition of pecuniary penalties – whether principle of proportionality, drawn from criminal law, is applicable – discussion of principle of proportionality as applied in criminal law – whether history of contravening should inform the court’s assessment of an appropriate penalty in the instant case – whether imposition of maximum penalties to serial recidivist justified – whether total penalty manifestly excessive – whether cooperation can be treated as a factor in mitigation warranting a discount on penalty where unaccompanied by contrition
Fair Work Act 2009 (Cth) ss 347(a), 349(1), 363, 545, 546, 547
The appeal be allowed and the Notice of Contention be dismissed.

Arundell & Ors v Macquarie Bank Ltd [2020] FCCA 2720
INDUSTRIAL LAW – application for civil remedies – whether or not applicants who executed deeds of release following the cessation of their employment are precluded from being able to pursue their claims – whether or not the applicants received remuneration in satisfaction of an entitlement to minimum rates of pay as contained in cl 13.1(a) of the Banking, Finance and Insurance Award 2010 – whether or not the applicants received remuneration in satisfaction of payment at the base rate of pay for the ordinary hours of work in the periods of annual leave taken by them, pursuant to s 90 of the Fair Work Act 2009 (Cth) – whether or not the applicants received remuneration in satisfaction of an entitlement to annual leave loading as contained in cl 24.3(a) the Award – whether or not the applicants received remuneration in satisfaction of an entitlement to annual leave loading on untaken leave at termination as contained in cl 24.3(a) the Award – whether or not applicants received remuneration in satisfaction of payment at the base rate of pay for the ordinary hours of work in the periods of personal/carer’s leave taken by them, pursuant to s 99 of the Act – whether or not applicants received remuneration in satisfaction of payment at the base rate of pay for the ordinary hours of work in the periods of compassionate leave taken by them, pursuant to s 106 of the Act – whether or not the applicants received remuneration in satisfaction of payment at the base rate of pay for the ordinary hours of work in the periods of public holiday leave taken by them, pursuant to s 116 of the Act – whether the respondent may set off payments made to the applicants – whether certain applicants’ claims released by deed of release – respondent found to have made payment under cl 13(a) of the Award – respondent found to be entitled to set-off salaries normal payments in respect of cl 13(a) of the Award – releases found not to be effective – contraventions of cl 24.3(a) of the Award and National Employment Standards made out – overpayment to one applicant found to be recoverable – declarations made – compensation orders made
Fair Work Act 2009 (Cth), ss 4, 16, 44, 45, 90, 99, 106, 116, 545, 546, 547, 566, 570.

Australian Building and Construction Commissioner v Menon [2020] FCA 1418
INDUSTRIAL LAW – admitted contraventions of s 500 of the Fair Work Act 2009 (Cth) – determination of penalties – proportionality and a previous record – whether contraventions occurred in a single course of conduct – relevant considerations in determining appropriate declarations and penalties
Building and Construction Industry (Improving Productivity) Act 2016 (Cth) ss 5, 6
Crimes Act 1914 (Cth) s 4AA
Fair Work Act 2009 (Cth) ss 500, 512, 546, 550, 557, 793
In Order 22, the amount “$30,000” has been amended to “$40,000”.

Roohizadegan v TechnologyOne Limited (No 2) [2020] FCA 1407
INDUSTRIAL LAW – general protections – adverse action contrary to Fair Work Act 2009 (Cth) s 340 – where Applicant’s employment terminated after he made seven complaints regarding bullying – operation of statutory presumption in s 361(1) – Respondents found not to have discharged onus of proving that complaints, being exercises of the Applicant’s workplace rights, not a reason for termination of his employment – adverse action established
INDUSTRIAL LAW – remedies – adverse action – pecuniary penalties awarded and ordered to be paid to the Applicant pursuant to Fair Work Act 2009 (Cth) s 546
INDUSTRIAL LAW – remedies – adverse action – where psychiatric evidence established the Respondents’ conduct had caused a significant aggravation of the Applicant’s pre-existing depressive disorder, which had resulted in the Applicant losing capacity to work – where psychiatric evidence also established a poor prognosis for the Applicant ever again being able to work in roles for which he would otherwise be qualified – compensation awarded to Applicant pursuant to Fair Work Act 2009 (Cth) s 545 for economic loss and as compensation analogous to general damages
CONTRACTS – where Applicant alleged breach of contract of employment by reason of non-payment of certain incentives due to him since 2009 – where contract had been varied on several occasions – consideration of Concut Pty Ltd v Worrell [2000] HCA 64; 176 ALR 693 – finding that neither textual nor contextual considerations supported Respondents’ preferred construction – breach of contract established – damages awarded
Fair Work Act 2009 (Cth) ss 340, 341, 351, 360, 361, 539, 542, 545, 546.

Legislation

Commonwealth

Act Compilation

Fair Work Act 2009
14/10/2020 - Act No. 28 of 2009 as amended.

NSW

Bills introduced – 19 October 2020

Non-Government
NSW Jobs First Bill 2020

Queensland

Subordinate legislation as made
No 251 Proclamation—Criminal Code and Other Legislation (Wage Theft) Amendment Act 2020 (commencing remaining provisions) 06 October 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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