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Employment Law and Workplace Relations Monthly Update - September 2019

01 October 2019

#Workplace Relations & Safety

Employment Law and Workplace Relations Monthly Update - September 2019

In the media

Some part-time Bunnings workers have been underpaid since 2011
Bunnings reveals a payroll error resulted in some part-time workers receiving incorrect superannuation payments for eight years. But the Fair Work Ombudsman has said self-disclosure will no longer be enough to protect big businesses from punishment (30 September 2019).   More...

Organisations find government legislation and employee awards difficult to interpret
Ninety per cent of organisations say employee legislation and awards are confusing or contradictory, and need revision (30 September 2019).  More...

Dairy company reaches settlement over foreign worker underpayment allegations
A dairy company that accused foreign workers of owing rent after allegations of underpayment arose has agreed to an out-of-court settlement (27 September 2019).  More...

United Petroleum faces court
The FWO has commenced legal action in the Federal Court against United Petroleum Pty Ltd (United Petroleum), alleging the company failed to produce documents when it was legally required to do so (27 September 2019).  More... 

Devine Constructions found to have discriminated as a result of towing CFMMEU line
The Federal Circuit Court in Brisbane has penalised Devine Constructions, its general manager and a senior employee $38,000 for refusing to engage a steel fabrication company because it did not have a CFMEU enterprise agreement (25 September 2019).  More...

Sunglass Hut to back-pay 620 workers
Sunglass Hut will back-pay $2.3 million to employees after breaching Australia’s workplace laws and underpaying 620 staff at stores across the country (24 September 2019).   More... 

Taking action against sexism and sexual harassment
The Andrews Labor Government is helping reduce sexism and sexual harassment by supporting a pilot program that teaches bystanders how to step in and take action against offensive behaviour (24 September 2019).  More...

Conflict of interest guidelines updated
The Governance Institute of Australia has updated its public sector guidelines for managing conflict of interest, taking into account new recommendations by the NSW Independent Commission Against Corruption (23 September 2019).  More...

Time running out to apply for labour hire licences in Victoria
Victorian labour-hire businesses have just over one month to register for the Andrews Labor Government’s new accreditation scheme, or else face significant penalties. From 30 October 2019, only labour-hire providers who are licensed or are awaiting an application decision will be allowed to operate in Victoria (23 September 2019).  More...

CFMMEU and Head Contractor penalised over $100,000 for discriminating and threatening subcontractor
The Federal Court has imposed penalties totalling $108,875 against the CFMMEU and Harris HMC Interiors for attempting to coerce a demolition subcontractor to make an enterprise agreement with the CFMMEU at the Kathleen Syme Library and Community Centre in Carlton (23 September 2019).  More...

Ultra Tune revs up for legal action against auditors after court win
Ultra Tune is considering whether to take legal action against its advisers after it successfully knocked more than $500,000 off penalties for breaches of the franchising code of conduct (24 September 2019).  More...

Sweetshop or sweatshop: Jury to decide on forced labour claims at Melbourne bakery
The Candoo bakery turned out trays of gently scented Iranian desserts and pastries each week. But some of its workers have told a Melbourne Magistrates' Court committal hearing that in the basement, prescription drugs were being used to keep workers going around the clock (22 September 2019).  More...

Discriminating against subcontractor following CFMMEU threat costs company $575,000
The Federal Circuit Court in Brisbane has penalised Forest Meiers Construction and its construction manager a total of $35,000 for refusing to engage subcontractor C&K Tiling because the company did not have an enterprise agreement with the CFMMEU (20 September 2019).  More...

IR reforms crucial to kick-start the economy: Ombudsman
The Ombudsman says the government’s concerns about Australia’s overly complex industrial relations system are shared by the nation’s small business community (19 September 2019).  More...

FWO files special leave application in Marland Mushrooms case
On 13 September 2019, the Fair Work Ombudsman filed an application in the High Court of Australia seeking special leave to appeal against the split decision of the Full Federal Court in Fair Work Ombudsman v Hu [2019] FCAFC 133 (19 September 2019).  More... 

Submissions invited on wage theft criminalisation
The Morrison Government is committed to introducing strong and effective criminal sanctions to help stamp out deliberate and systematic wage theft by Australian employers. Community feedback is being sought to help inform the development of a new offence and penalty regime, which must include significant jail terms and fines for the most serious offences (19 September 2019).  More...

Court exposes ‘contrived’ safety claim: CFMMEU and official penalised $34,500
The Federal Court has handed down penalties totaling $34,500 against the CFMMEU and its former official Brendan Murphy after Mr Murphy was found to have intentionally hindered and obstructed construction work at the Geelong Grammar school in December 2014 (16 September 2019).   More...

Government seeks to restore clarity to personal leave entitlements
The Morrison Government will seek leave, in the High Court, to appeal a recent Full Federal Court decision, which has sparked confusion and uncertainty around the way sick and carers leave entitlements should be calculated (16 September 2019).  More...

Slavery in modern Australia': Sacked Uber Eats worker's case challenges gig economy
A delivery driver suing Uber Eats for underpayment and unfair dismissal has found support from the union movement, which says it is time to treat gig workers as employees (16 September 2019).  More...

Kids clothing retailer faces court
The Fair Work Ombudsman has commenced court action against a retailer that allegedly underpaid four Chinese migrants over $140,000 and breached Protecting Vulnerable Worker laws, including by committing serious contraventions and hindering-or-obstructing Fair Work inspectors (13 September 2019).  More... 

Delivering more safety and fairness to owner-drivers in Victoria
Amendments to the Owner Drivers and Forestry Contractors Act passed Parliament, ensuring these workers – including drivers that work for delivery services such as UberEats and Deliveroo – are paid correctly, are safer at work and have all the information they need to run successful businesses (12 September 2019).  More...

Defending the human rights of Victorian workers
The Labor Government has made a submission to the Australian Senate against the Ensuring Integrity Bill, which targets the union movement and its officials. The Fair Work (Registered Organisations) Amendment Bill 2019 introduces a so called ‘public interest test’ that limits the freedom of unions to merge their organisations (03 September 2019).  More...

Published - reports, articles, speeches 

Department of Jobs and small business: Monthly leading indicator of employment September 2019
The Monthly Leading Indicator of Employment (the Indicator) has fallen for the sixteenth consecutive month in September 2019, after nine consecutive monthly rises.  More...

Australian Bureau of Statistics
26 September Labour Force, Australia, Detailed, Quarterly, Aug 2019 (cat no. 6291.0.55.003)
19 September Labour Force, Australia, Aug 2019 (cat no. 6202.0)
05 September Industrial Disputes, Australia, Jun 2019 (cat no. 6321.0.55.001)
In practice and courts

Attorney General: Consultations released – Project life greenfields agreements and Improving protections of employees' wages and entitlements: Strengthening penalties for non-compliance
A discussion paper that invites submissions on a range of issues, including the thresholds at which certain behaviour should be criminalised, the potential penalties and how the changes would apply to corporations.
A separate discussion paper, examining the issue of Project Life Greenfields Agreements. Under the Fair Work Act, enterprise agreements can only apply for a maximum of four years after approval.
The papers can be viewed on the Attorney-General's website. Submissions close on October 25 for the wage theft paper and November 1 for the second paper.

FWO: Climate change protests in September 2019
Employees who attended the protest, but were required to be at work, needed their employer's permission to be away from work. For example, employees could request to take annual leave to attend the protest.
Employees may also be able to take other forms of paid or unpaid leave. The process for requesting annual or other forms of leave is often set out in an award, a registered agreement, contract of employment or company policy.  More... 

Case

Taylor v Commonwealth of Australia represented by the Department of Health [2019] FCA 1587
 INDUSTRIAL LAW – application for interlocutory injunctive relief in the context of proceedings alleging numerous instances of adverse action for exercise of workplace rights contrary to s 340(1) of the Fair Work Act 2009 (Cth) – interlocutory injunctive relief refused

Director, Fair Work Building Industry Inspectorate v Devine Constructions Pty Ltd & Ors [2019] FCCA 2712
INDUSTRIAL LAW – Commonwealth – compliance and enforcement – civil remedies – pecuniary penalty orders – assessing penalty – deterrence. Fair Work Act 2009 (Cth), ss.340, 354, 546, 550(1), 557(1)

Civil Air Operations Officers' Association of Australia v Airservices Australia [2019] FCA 1542
 INDUSTRIAL LAW – pecuniary penalty – admitted contravention of s 50 of the Fair Work Act 2009 (Cth) – consideration of relevant factors in assessment of penalty – penalty imposed

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining, and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555
 INDUSTRIAL LAW – civil penalty provision – contraventions of s 340, s 343, s 345, s 348, s 349, and s 354 of Fair Work Act 2009 – relevance of past contraventions of provisions by parties to quantum of penalty – making of declarations and orders as to appropriate penalty.

Fair Work Ombudsman v NSW Motel Management Services Pty Ltd & Ors (No.2) [2019] FCCA 2638
INDUSTRIAL LAW – Application for imposition of civil penalties – contraventions of the Fair Work Act 2009 (Cth) – respondents made certain admissions – findings made in relation to remaining issues – appropriate penalty for contraventions by respondents. Fair Work Act 2009 (Cth) ss.536, 546, 550, 551, 557

Commissioner of the Australian Building and Construction Commission v Hall & Ors (No.2) [2019] FCCA 2055
INDUSTRIAL LAW – Concessions made by Applicant regarding liability of the Seventh Respondent Union – consideration of those concessions inevitably leads Court to dismiss Contravention Applications against the Seventh Respondent Union except in relation to the contraventions admitted – supplementary judgment and amendment to Orders pursuant to the “slip rule”. Fair Work Act 2009 (Cth), s.793. 

ABCC v Forest Meiers Construction Pty Ltd & Anor (No.2) [2019] FCCA 2663
 INDUSTRIAL LAW – Commonwealth – compliance and enforcement – civil remedies – pecuniary penalty orders – assessing penalty – deterrence. Fair Work Act 2009 (Cth), ss.340, 354, 546, 550(1), 557(1)

Registered Organisations Commissioner v Australian Hotels Association [2019] FCA 1516
 INDUSTRIAL LAW – civil penalty proceedings – admitted contraventions by respondent of certain election notification and record keeping provisions of the Fair Work (Registered Organisations) Act 2009 (Cth) – contraventions spanned a period of 14 years – agreed statement of facts – whether increase in number of penalty units applies retrospectively – whether certain contraventions to be grouped together – consideration of appropriate penalty in the circumstances Fair Work (Registered Organisations) Act 2009 (Cth), ss 189(2), 230(1)(c), 233(2); Fair Work (Registered Organisations) Amendment Act 2012 (Cth), Schedule 1, Items 7, 8, 10

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case) (No 2) [2019] FCA 1498
INDUSTRIAL LAW – pecuniary penalties – contravention of s 500 of the Fair Work Act 2009 (Cth) – consideration of relevant factors in assessment of penalties – relevance of prior contraventions to fixing of penalty – penalties imposed. Fair Work Act 2009 (Cth) ss 500, 539, 546, 793; Federal Court Rules 2011(Cth) rr 10.31(e), 41.07 

Ridd v James Cook University (No.2) [2019] FCCA 2489
INDUSTRIAL LAW – Assessment of compensation – past economic loss – future economic loss – vicissitudes – general damages – post judgment behaviour – assessment of pecuniary penalties.

Legislation

Commonwealth

Bills

Fair Work Laws Amendment (Proper Use of Worker Benefits) Bill 2019
Senate 11/09/2019 – Second reading debate 01 August 2019 – This Bill will amend the Fair Work (Registered Organisations) Act 2009 (the RO Act) and the Fair Work Act 2009 (the FW Act) to protect workers through greater governance and transparency of registered organisations and associated entities, in particular worker entitlement funds and gives effect to recommendations made by the Royal Commission into Trade Union Governance and Corruption (the Royal Commission).

Fair Work Amendment (Stop Work to Stop Warming) Bill 2019
HR 16/09/2019 – The Bill introduces a new category of ‘protected climate change industrial action’. Employees taking such action are immune from having any action taken against them under any Australian law, provided their action remains within certain limits (such as not being a threat to anyone else’s life or safety). The Bill permits employees and employers to include in their enterprise agreements matters pertaining to climate change

Paid Parental Leave Amendment (Work Test) Bill 2019
Senate 19/09/2019 – The Bill introduces in part the measure affecting Paid Parental Leave announced in the Mid-Year Economic and Fiscal Outlook 2018-19 measure ‘Extending Access to Parental Leave Pay’. The Paid Parental Leave work test will be amended to take into account the circumstances of pregnant employees
Regulations

Fair Work Amendment (Right of Entry Identification) Regulations 2019
20/09/2019 – This instrument amends the Fair Work Regulations 2009 to provide clarity and certainty of the types of documents that can be produced during the transition to a modernised form of entry permit.
Australian Human Rights Commission Regulations 2019
13/09/2019 – These regulations declare additional grounds of discrimination for the purposes of the Australian Human Rights Commission's equal opportunity in employment function, provided for by Division 4 of Part II of the Australian Human Rights Commission Act 1986.

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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