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Employment Law and Workplace Relations Monthly Update - September 2020

14 October 2020

#Workplace Relations & Safety

Employment Law and Workplace Relations Monthly Update - September 2020

In the media

FWO takes action against Brisbane café
The Fair Work Ombudsman has commenced legal action in court against the operator of a Brisbane café alleging breaches including that employees were partially paid in food and drink (24 September 2020).  More... 

Wages recovered for Top Juice workers
The Fair Work Ombudsman has recovered $32,435 in unpaid wages for 18 workers following an investigation into 16 outlets of fresh juice and salad franchise Top Juice across eastern Australia (11 September 2020).  More...

Union urges businesses to 'hire local' to stop spread of virus from metropolitan areas
Cleaners at a factory in regional Victoria say there are fears the company will replace them with workers from Melbourne. The AMWU says this is especially concerning given the spread of COVID-19 in metropolitan areas (23 September 2020).  More...

CFMMEU and six officials hit with $201,500 in penalties over ACT entry breaches
The Federal Circuit Court in the ACT has penalised the CFMMEU $138,000 and six officials a further $63,500 following breaches of right of entry laws across three apartment project sites in Franklin, Harrison and Wright in 2013 and 2014.  More...

Farm facing worker shortages offers $50,000 incentive to attract fruit pickers
As the pandemic keeps borders locked, Mountain Blue Farms hopes a cash bonus will attract workers to pick the NSW farm's 2020 blueberry crop (17 September 2020).  More...

Fair work watchdog investigating case of backpacker 'paid $2.50 an hour' to pick fruit
The Fair Work Ombudsman says it is investigating the case of a backpacker who says she was underpaid, sexually harassed and asked to post "racist" ads on social media to attract other workers, following an ABC investigation (17 September 2020).  More...

University of Adelaide charges nearly $1,000 to respond to sexual harassment FOI request
The University of Adelaide says it will take 15 hours and nearly $1,000 to collate basic information about complaints of sexual harassment incidents that have happened on campus since 2018 (14 September 2020).  More...

Meat processor's 'too comfortable' JobSeeker claims spark a backlash
One of Australia's largest meat processors is criticised for suggesting JobSeeker payments are so high, people would rather sit at home than work (11 September 2020).  More...

It’s now a crime to commit wage theft in Queensland, after new laws were passed by the state parliament
New laws passed in Parliament on will see employers in Queensland facing a maximum of 10 years in jail for wage theft – which includes underpaid wages, withholding leave and penalty entitlements, or not making the necessary super contributions. It’s the same penalty for “stealing as clerk or servant” (10 September 2020).  More...

'Nepotism and corruption': The growing gig economy inside the Federal Government analysis
An ABC analysis suggests Commonwealth spending on consulting and labour-hire firms now exceeds $5 billion a year — and former senior officials warn the practice may be unlawful (10 September 2020).  More...

IBM and Western Power - the latest employers to sign Enforceable Undertakings
Multinational technology company IBM has back-paid Australian employees more than $12 million after entering into an Enforceable Undertaking with the Fair Work Ombudsman (11 September 2020)
Western Australian electricity network provider Western Power has back-paid employees more than $8 million, and is reporting to the Fair Work Ombudsman to ensure it correctly calculates and finalises further significant back-payments, under an Enforceable Undertaking entered into with the FWO (10 September 2020).  More... Western Power signs Enforceable Undertaking

Published reports articles, speeches

ABCC industry update – September 2020 edition
The September edition of Industry Update features the latest information from the ABCC, our Corporate Plan and priorities for 2020-21, how we have continued educating and communicating in the COVID-era, a non-compliance publication notice, new matters, court outcomes and more.  More...

Department of Jobs and Small Business: Monthly Leading Indicator of Employment September 2020
The Monthly Leading Indicator of Employment (the Indicator) has risen for the third consecutive month in September 2020 (after eight consecutive monthly falls). The Indicator’s rise this month reflects a rebound in business investment in Australia and a pickup in economic activity in China.  More...

Quarterly Report by the Commonwealth Ombudsman under s 712F(6) of the Fair Work Act 2009 for the period 1 April to 30 June 2020
Commonwealth Ombudsman: Quarterly Report by the Commonwealth Ombudsman under s 712F(6) of the Fair Work Act 2009 (Review and report of the Commonwealth Ombudsman regarding examinations conducted by the Fair Work Commission in respect of power to ask questions and require records and documents) for the period 1 April to 30 June 2020 (02 September 2020).  More...

Australian Bureau of Statistics
24/09/2020 Detailed monthly and quarterly Labour Force data
17/09/2020 Labour Force, Australia
09/09/2020 932,000 jobs lost between the March and June quarters
03/09/2020 Working days lost in June quarter 2020 a series low

In practice and courts

Award & agreement flexibility during the COVID-19 pandemic
A number of applications to vary awards to allow for more flexibility during the COVID-19 pandemic have been received. The Fair Work Commission is dealing with these applications as quickly as possible.
Cases currently under consideration, and those that have already been determined, are listed at the following link.

Cooperative Workplaces Symposium
The Fair Work Commission in partnership with Macquarie University presents a Symposium on Cooperative Workplaces to be held via Zoom on 13 and 14 October 2020.(15 September 2020).  More...

Cases

Qantas Airways Limited v Flight Attendants' Association of Australia (The JobKeeper Case) [2020] FCA 1365
INDUSTRIAL LAW – Commonwealth JobKeeper Scheme – amount payable to employee for work performed during the fortnight – method of calculation
STATUTORY INTERPRETATION – reliance upon statutory rules to construe statute – part of legislative framework contemporaneously prepared
Fair Work Act 2009 (Cth) Pt 6-4C, ss 789GA, 789GB, 789GC, 789GD, 789GDA.

Construction, Forestry, Maritime, Mining and Energy Union v Kyren Pty Ltd [2020] FCA 1356
INDUSTRIAL LAW – admitted contraventions of s 501 and s 502(1) of the Fair Work Act 2009 (Cth) – determination of penalties – relevant considerations in determining appropriate declarations and penalties
Fair Work Act 2009 (Cth) ss 480, 494, 497, 498, 499, 501, 502, 546, 793
The First Respondent, Kyren Pty Ltd, pay a pecuniary penalty of $15,000 in respect of its contravention of s 501 referred to in the first declaration above
The Second Respondent, Mr Donald McCondichie, pay a pecuniary penalty of $3,800 in respect of his contravention of s 501 of the FW Act referred to in the first declaration above
The Second Respondent, Mr Donald McCondichie, pay a pecuniary penalty of $1,800 in respect of his contravention of s 502(1) which is the subject of the second declaration above.

Commissioner of the Australian Building and Construction Commission v Hall & Ors (No.3) [2020] FCCA 2352
INDUSTRIAL LAW – Assessment of penalties – multiple contraventions of the Fair Work Act 2009 (Cth) (“the FW Act”) established regarding the conduct of CFMEU officials on three different building sites over a period of seven months – whether declarations should be made in respect of the Respondents – consideration of principles relevant to assessment penalties – quantum of penalties – where Applicant sought maximum penalties to be imposed – need for specific and general deterrence – declarations made – penalties ordered
Fair Work Act 2009 (Cth), ss.494, 497, 499, 500, 503, 545.

Fair Work Ombudsman v Soma Kitchen Pty Ltd & Anor (No.2) [2020] FCCA 2583
INDUSTRIAL LAW – Penalty hearing – factors for consideration – no engagement by respondents – mid range penalty imposed. Fair Work Act 2009 (Cth), ss.539, 546, 557, 682, 716.

Bone v Mini Majhel Pty Ltd & Anor (No.2) [2020] FCCA 2603
INDUSTRIAL LAW – Appropriate civil penalties to be paid by the Respondents pursuant to section 546 of the Fair Work Act 2009 (Cth)
Fair Work Act 2009 (Cth), ss.12, 44(1), 45, 535, 545, 546, 550, 557
Fair Work Regulations 2009 (Cth), r.3.42
(1) Pursuant to section 546 of the Fair Work Act 2009 (Cth) within 42 days the First Respondent shall pay a pecuniary penalty of $70,200 for contraventions set out in the declarations made on 11 June 2020
(2) Pursuant to section 546 of the Fair Work Act 2009 (Cth) within 42 days the Second Respondent shall pay a penalty of $14,040 for contraventions set out in the declarations made on 11 June 2020.

Nabi v New Era Balustrading & Anor (No.2) [2020] FCCA 2246
INDUSTRIAL LAW – Civil penalty proceedings pursuant to s 546 (1) of the Fair Work Act 2009 (Cth) – exercise of workplace right – underpayments – agreed penalty – penalty imposed
(1) Pursuant to s 546 of the Fair Work Act 2009 (Cth), a penalty of $20,000.00 is imposed on the first respondent, to be paid to the applicant
(2) Pursuant to s 546 of the Fair Work Act 2009 (Cth), a penalty of $10,000.00 is imposed on the second respondent, to be paid to the applicant.

Construction, Forestry, Maritime, Mining and Energy Union v Melbourne Precast Concrete Nominees Pty Ltd (No 3) [2020] FCA 1309
INDUSTRIAL LAW – employment – where declarations previously made that respondents contravened ss 50 and 340(1) of the Fair Work Act 2009 (Cth) (FW Act) by dismissing second applicant – reinstatement and compensation for economic loss previously ordered – whether respondents should also pay compensation for non-economic loss and pecuniary penalties – appropriate quantum of compensation – number of penalties to be imposed – whether rule against civil double jeopardy in s 556 of the FW Act applies – appropriate quantum of penalties.

Budathoki v Consult Security Pty Ltd & Ors (No.2) [2020] FCCA 2372
INDUSTRIAL LAW – Application for relief arising from earlier liability judgment – consideration of matters relevant to the fixing of pecuniary penalties
Fair Work Act 2009 (Cth), ss.44, 45, 90, 117, 323, 536, 545, 546, 547, 550, 557.

Bell & Ouyen Hotel Pty Ltd (No.2) [2020] FCCA 2370
INDUSTRIAL LAW – Applications for consequential orders and relief for following liability judgment – consideration of matters relevant to quantum of penalties – declarations sought by applicant found by court to be superfluous
Fair Work Act 2009 (Cth), ss 45, 340, 535, 536, 546, 557; Fair Work Regulations 2009 (Cth), div 3, pt 3-6
(1) The respondent pay the applicant: (a) $10,299.25 for underpayment of wages.

Legislation

Commonwealth

Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Bill 2020
Introduced in the House of Representatives 03/09/2020 - A Bill for an Act to amend the Fair Work Act 2009 in relation to unpaid parental leave, and for related purposes

Fair Work Amendment (One in, All in) Bill 2020 [No. 2]
Introduced in the House of Representatives 03/09/2020 01/09/2020 - This Bill will give the Fair Work Commission (FWC) the power to deal with disputes relating to employee eligibility for the Jobkeeper payment.

NSW

Regulations and other miscellaneous instruments
Long Service Leave Amendment (COVID-19 Prescribed Period) Regulation 2020 (2020-540) — published LW 11 September 2020

Queensland

Subordinate legislation as made – 04 September 2020
No 182 Proclamation No. 2—Community Services Industry (Portable Long Service Leave) Act 2020 (commencing remaining provisions)
No 183 Community Services Industry (Portable Long Service Leave) Regulation 2020

Bills

Criminal Code and Other Legislation (Wage Theft) Amendment Bill 2020
Stage reached: Passed with amendment on 9/09/2020
Assent Date: 14/09/2020 Act No: 34 of 2020 Commences: see Act for details
The Act increases the maximum penalties in the Criminal Code for the offences of stealing and fraud relating to wage theft, and facilitating the Industrial Magistrates Court's jurisdiction for wage recovery matters, including the small claims wage recovery procedure for matters of not more than $20,000 under section 548 of the Fair Work Act 2009 (Cth). Parts 3 and 5 commence on a day to be fixed by proclamation.

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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