In the media
Former accounting firm in court
The Fair Work Ombudsman has commenced legal action in the
Federal Circuit Court against the former operator of a Sydney
accounting firm, UHY Sothertons Sydney Pty Ltd for allegedly
failing to pay entitlements owing on termination of employment in
the context of a sale of business (29 June 2020).
More...
ABCC successful in age discrimination case
In a decision delivered by the Federal Court, a Western
Australian labour hire company has been found to have discriminated
against a worker because of his age (26 June 2020).
More...
Wake up call for labour hire employers on wages
An Australian Building and Construction Commission
(ABCC) audit of 63 labour hire employers revealed
a disappointing 79 per cent didn't meet all their obligations
under Australia's workplace laws (19 June 2020).
More...
ABC signs Enforceable Undertaking
The Australian Broadcasting Corporation
(ABC) has back-paid over $11.9 million to more
than 1,800 current and former casual staff and entered into an
Enforceable Undertaking (EU) with the FWO. The
national broadcaster has also reached agreement with the Fair Work
Ombudsman to make a "contrition payment" for underpaying
more than 1,900 casual staff over several years (19 June 2020).
More...
Former Sydney entrepreneur penalised
The Fair Work Ombudsman has secured $264,690 in penalties
against a former Sydney entrepreneur, his wife and three companies
he operated in response to employees being underpaid more than $1
million (18 June 2020).
More...
Portable long service entitlements for Queensland
community service workers
The Palaszczuk Government has passed legislation to
introduce a portable long service leave scheme for workers in the
community services industry (17 June 2020).
More...
High Court asked to overturn 'double dipping'
decision
Labour hire firm Workpac has launched a High Court
challenge to a landmark ruling on casual employment, warning it
will expose businesses to up to $14 billion in backpay. The
application filed in the High Court by WorkPac seeks special leave
to appeal the decision of the Full Federal Court in the WorkPac v
Rossato case.
More...
Wage Theft legislation passes Victorian Parliament
Victoria has become the first state in the country to pass
laws establishing criminal penalties for employers who deliberately
underpay or don't pay their workers. New record keeping
offences are aimed at employers who attempt to conceal wage theft
by falsifying or failing to keep records (17 June 2020).
More...
Posties deliver security message
Australia Post has confirmed that no postal worker will be
forced to accept a redundancy as part of the temporary changes to
the postal service it has made in response to COVID-19 (15 June
2020).
More...
Court penalises CFMMEU for its "unconscionable war
against free association" on building sites
The Federal Court has penalised the CFMMEU and two of its
officials $123,500 as a result of unlawfully coercing workers to
join and pay membership fees to the union and coercing
subcontractors to pay "union rates" during construction
work on Melbourne University's college site in Parkville in
2016 (05 June 2020).
More...
Slavery paper to free from bondage
The Department of Home Affairs has released a scoping
paper on how the Australian public sector can avoid supporting
modern slavery in its procurement and purchasing practices (04 June
2020).
More...
Transport company in court
The Fair Work Ombudsman has commenced legal action in the
Federal Circuit Court against Sydney-based passenger transport
company, Ambient Transport Pty Ltd (03 June 2020).
More...
Over $200,000 penalties for restaurant underpayments
The Fair Work Ombudsman has secured penalties of $209,000
against a Melbourne restaurateur, his two companies and his
in-house accountant for underpaying workers (01 June 2020).
More...
Published - reports, articles, speeches
ABCC: Industry Update – 10 June 2020 Edition
The June edition of Industry Update features the latest
information from the ABCC, Commonwealth, state and territory
initiatives for the construction industry during and post the
COVID-19 pandemic, court outcomes and more. More...
Department of Jobs and Small Business: Monthly Leading
Indicator of Employment June 2020
The Monthly Leading Indicator of Employment (the
Indicator) has fallen for the seventh consecutive month in
June 2020, after three consecutive monthly rises. The
Indicator's decline this month is due to falls in three (out of
five) of the Indicator's components.
More...
The future is now: creating decent work
post-pandemic
Sunil Johal; Public Policy Forum: The COVID-19 pandemic,
which swept across the globe in the early months of 2020, has
rapidly accelerated long-standing trends in labour markets and
economies around the world. Income inequality, precarious work and
the digitisation of the economy are now issues that policymakers
must grapple with (12 June 2020). More...
In practice and courts
Fair Work Ombudsman: 1.75% increase to minimum
wages
The Fair Work Commission has announced a 1.75% increase to
minimum wages. Increases to awards will start on 3 different dates
for different groups of awards. Details outlined here (19 June
2020).
More...
FWC: Annual Wage Review 2019–20 decision
issued
The Fair Work Commission has issued the Annual Wage Review
2019–20 decision. A summary of the decision is available on
the
Summaries of significant decisions page on the Commission's
website (19 June 2020).
More...
Commonwealth Modern Slavery Statement Paper
This would report on modern slavery risks in the
Government's procurement and investment activities and explain
the steps taken to identify and respond to those risks, and link
with Australia's Modern Slavery Act 2018, the only legislation
in the world requiring a Government to report on modern slavery
risks in its procurement activities (04 June 2020).
More...
FWC: Filing fee – Dismissals, general protections
& anti-bullying applications
From 1 July 2020 the application fee for dismissals,
general protections and anti-bullying applications made under
sections 365, 372, 394, 773 and 789FC of the Fair Work Act 2009
will increase to $74.50. Also effective from 1 July, the high
income threshold in unfair dismissal cases will increase to
$153,600 and the compensation limit will be $76,800 for dismissals
occurring on or after 1 July 2020.
More...
FWC: 18 modern awards extensively varied
The Fair Work Commission is extensively varying existing
awards as a result of the 4 yearly review of modern awards. The
modern awards will be varied in 3 tranches during 2020. The varied
awards were published in advance and commenced operation, 18 June
2020 (18 June 2020).
More...
FWC: Jobkeeper disputes benchbook updated
The benchbook has been prepared by the Commission to
assist parties who are lodging or responding to jobkeeper dispute
applications under the Fair Work Act 2009 (Cth). The updated
Jobkeeper disputes benchbook is now available (15 June 2020).
More...
FWC: General protections benchbook
updated
The updated version reflects recent changes to the Privacy
Act 1988 to include workplace rights that are intended to protect
employees and others from disadvantage or other adverse
consequences if they decide not to download or use the COVIDSafe
app. View the online version here
General protections benchbook (01 June 2020).
More...
Cases
Australian Building and Construction Commissioner v
CoreStaff WA Pty Ltd [2020] FCA 893
INDUSTRIAL LAW - adverse action - discrimination for
reason of age - where recruitment company refused application for
employment because person applying was 70 years old - where
position was for grader operator on assignment in the Pilbara
region of Western Australia - whether client or recruitment company
was prospective employer - where client expressed concern about
person's age - where independent assessment of age undertaken
by decision-maker - whether age was a substantial and operative
factor in decision-maker's reasons - contravention of s 351(1)
of Fair Work Act 2009 (Cth) by first respondent established
Australia Education Union v Yooralla
(No.2) [2020] FCCA 1659
INDUSTRIAL LAW – Penalties –
contraventions of the Fair Work Act 2009 established –
whether the Court should impose pecuniary penalties against the
Respondent – whether the breaches arose from a single course
of conduct – double jeopardy provisions considered –
analysis of sections 556 and 557 of the Fair Work Act 2009 –
the need for deterrence – imposition of pecuniary penalties
to be paid within 30 days.
Vassallo v Easitag Pty Ltd [2020]
FCA 875
INDUSTRIAL LAW – classification of employee for
the purposes of the Electrical, Electronic and Communications
Contracting Award 2010 and the National Electrical, Electronic and
Communications Contracting Industry Award 1998 – matter
previously arbitrated in the Fair Work Commission – whether
decisions of the Fair Work Commission and Full Bench of the Fair
Work Commission extinguished justiciable controversy between
parties as to classification of the applicant employee –
cause of action estoppel established – issue of
employee's classification not open to be re-agitated in
proceedings before the Federal Court of Australia
Fair Work Act 2009 (Cth) ss 570, 739
Bell v Ouyen Hotel Pty Ltd [2020]
FCCA 1505
INDUSTRIAL LAW – Adverse action claim –
whether applicant resigned or accepted employer's repudiation
of the contract – whether applicant entitled to alleged award
underpayments – whether employer injured the applicant in her
employment because of exercise of workplace right –
consequences of non-provision of payslips – applicant's
claims largely established – matter to be heard as to
consequential orders and relief.
Fair Work Act 2009 (Cth), ss.340, 341, 343, 361, 386, 536, 545;
Fair Work Regulations 2009
Fair Work Ombudsman v IE Enterprises Pty
Ltd [2020] FCA 848
PRACTICE AND PROCEDURE – application for partial
default judgment under r 5.23 of the Federal Court Rules 2011 (Cth)
against respondents – failure of respondents to defend
proceeding – failure of respondents to attend case management
hearing – failure of respondents to comply with Court orders
– whether Court has jurisdiction to grant relief –
whether applicant is entitled to relief
INDUSTRIAL LAW – application for declaratory relief and
compensation orders in relation to contraventions of the Fair Work
Act 2009 (Cth) – failure to pay minimum hourly rates –
failure to pay employees in full – failure to make and keep
employee records – failure to provide pay slips –
whether contraventions are serious contraventions as they were part
of a systematic pattern of conduct – whether first respondent
expressly, tacitly or impliedly authorised contraventions –
whether second respondent knew that first respondent's
contraventions were serious contraventions
Held: application for partial default judgment granted
Fair Work Act 2009 (Cth) ss 45, 323(1), 535(1), 536(1), 536(3),
545(2)(b), 547(2), 550, 550(2), 557A, 557A(1), 557(5A),
557B(1)
Fair Work Amendment (Protecting Vulnerable Workers) Act 2017
(Cth)
Fair Work Ombudsman v Priority Matters Pty Ltd &
Anor (No.5) [2020] FCCA 901
INDUSTRIAL LAW – Fair Work – assessment of
penalties for established breaches of the Fair Work Act 2009 (Cth)
by corporations and directors as accessories.
Fair Work Act 2009 (Cth), ss.23, 44, 45, 90, 99, 116, 117, 119,
293, 323, 328, 539, 542, 546, 550, 557, 570, 682
(1) By 31 December 2020, or such other date as may be agreed
between the parties, Priority Matters Pty Ltd pay a pecuniary
penalty of $51,000 to the Commonwealth pursuant to s.546 of the
Fair Work Act 2009 (Cth) (Fair Work Act) for the
contraventions set out in the declarations dated 22 February
2019.
(2) By 31 December 2020, or such other date as may be agreed
between the parties, Kia Silverbrook pay a pecuniary penalty of
$10,200 to the Commonwealth pursuant to s.546 of the Fair Work Act
for the contraventions set out in the declarations dated 22
February 2019.
Joseph v Parnell Corporate Services Pty
Ltd (No 2) [2020] FCA 838
INDUSTRIAL LAW – termination of employment
contract not unlawful – misconduct – unpaid annual
leave and long service leave entitlements
CONTRACT – damages for settlement of proceedings instituted
overseas
PRACTICE AND PROCEDURE – costs
Judgment for the Applicant/Cross-Respondent against the Third
Respondent/Third Cross-Claimant in the amount of US$141,559.90
inclusive of interest to the date of judgment.
Agapitos v Colliers International
(WA) Pty Ltd [2020] FCCA 1536
INDUSTRIAL LAW – Practice and Procedure –
claims for long service leave and commissions arising from
employment – claim arises under the Fair Work Act 2009 by
reason of reference to the National Employment Standards –
application falls within the federal jurisdiction – whether a
claim that does not properly plead a federal matter can be amended
to raise a federal matter – application is a civil matter
arising under section 566 of the Act – justiciable
controversy encompassing potential Award breach claims –
application is not a bare plea – claim is not colourable and
made for the improper purpose of fabricating jurisdiction –
claim is not trivial aspect of the controversy – no
requirement to issue notices to Attorneys General of the States or
Territories pursuant to s 78B of Judiciary Act 1903.
Rhodes v Firepower Pump Systems Pty Ltd trading as
Territory Fire Service & Training [2020]
FCCA 1649
INDUSTRIAL LAW – Fair Work – small claim
– which Award applies to an applicant who worked as a service
technician with respect to building fire systems – Plumbing
and Fire Sprinklers Award 2010 – Electrical, Electronic and
Communications Contracting Award 2010 – employee covered by
Plumbing and Fire Sprinklers Award 2010.
INDUSTRIAL LAW – Fair Work – proper interpretation of
'redundancy' in clause 18.2 of Plumbing and Fire Sprinklers
Award 2010 – where 'redundancy' given a broad
definition in Award as being 'where an employee ceases to be
employed by an employer' – 'redundancy' as
defined in Award includes resignation.
INDUSTRIAL LAW – Fair Work – over-Award payments
– amount due and owing for 'redundancy' –
payments over-Award rates for ordinary hours do not satisfy
redundancy or severance payment obligations under Award.
(1) The Respondent pay a total of $12,537.29 to the Applicant
Association of Professional Engineers, Scientists and
Managers Australia v Bulga Underground Operations Pty
Ltd (No 2) [2020] FCA
812
INDUSTRIAL LAW – civil penalty – where
employer breached s 323 of the Fair Work Act 2009 (Cth) –
whether penalty should be imposed
Coal Mining Industry (Long Service Leave) Administration Act 1992
(Cth) ss 39AC, 39CB(2)
Fair Work Act 2009 (Cth) ss 323, 323(1), 546(1), 546(3)(c),
556
Pursuant to s 546(1) of the Fair Work Act 2009 (Cth), the
respondent pay a pecuniary penalty of $10,000.00.
Kiyama v Mtn Top Pty Ltd & Ors
[2020] FCCA 1205
INDUSTRIAL LAW – Application for summary
judgment – accessorial liability – whether
contravention of Fair Work Act 2009 (Cth) – failure to pay
entitlements – absence of clear pleading – directions
for filing of documents – provision for hearing.
Fair Work Act 2009 (Cth), ss.44, 45, 87(1)(a), 125(1), 325(1), 345,
550(1)
Kambouridis v L.R. Reed City Pty Ltd &
Anor [2020] FCCA 1484
INDUSTRIAL LAW – Contravention of Fair Work Act
2009 – unfair dismissal – penalties hearing –
failure to pay compensation ordered – costs order sought
– penalties imposed.
Fair Work Act 2009 (Cth), ss.390, 392, 405, 539, 546, 550 and
570.
(1) The first respondent contravened s.405 of the Fair Work Act
2009 (the Act) in failing to comply with the order
of the Fair Work Commission dated 11 October 2017.
3) The first respondent pay to the applicant a penalty of $20,000
pursuant to s.546(1) of the Act for its contraventions set out in
paragraph 1 above.
Australian Building and Construction Commissioner v
Construction, Forestry, Maritime, Mining and Energy Union (The
College Crescent Case) [2020] FCA
757
INDUSTRIAL LAW – pecuniary penalties – agreed
contraventions – adverse action – application of
"no ticket, no start" philosophy – coercion of
subcontractor to pay "union rates" – 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 "civil
double jeopardy", "course of conduct" and
"totality" principles – personal payment orders
– appropriateness of declaratory relief
Building and Construction Industry (Improving
Productivity) Act 2016 (Cth) ss 5 and 15
Crimes Act 1914 (Cth), s 4AA
Crimes Legislation Amendment (Penalty Unit) Act 2015 (Cth), item 2
of sch 1
Fair Work Act 2009 (Cth) pts 2-4, 3-1; ss 12, 336, 342, 346, 347,
348, 363, 539, 545, 546, 556 and 793
Fair Work (Registered Organisations) Act 2009 (Cth) s 12
The first respondent pay pecuniary penalties totalling
$110,000.00.
The second respondent pay pecuniary penalties totalling
$7,500.00.
The third respondent pay a pecuniary penalty of $6,000.00.
Fair Work Ombudsman v B2D Pty Ltd &
Anor [2020] FCCA 1442
INDUSTRIAL LAW – Application for breaches of
civil remedy provisions of the Fair Work Act 2009 – employer
failed to pay wages and provide appropriate wage slips – Fair
Work Ombudsman issued notice to produce records of wage payments
– respondents produced material that is alleged to be
misleading and deceptive – respondents failed to take any
steps in the proceedings – proceedings undefended –
matters to be considered.
Fair Work Act 2009 (Cth), ss.3, 535, 536, 539, 545, 547, 550, 687,
701, 712, 716, 718A
Ross v Paea trading as Bombora Cafe
[2020] FCA 766
INDUSTRIAL LAW – where Applicant employed as cook by
First Respondent – where Applicant claims unpaid wages,
annual leave, taxation and superannuation under Fair Work Act 2009
(Cth)(the Act) – whether the Restaurant
Industry Award 2010 applies to First Respondent – whether
First Respondent is employer under s 47 of the Act – whether
First Respondent contravened the Act
SUPERANNUATION – whether employee can sue employer where
employer fails to make superannuation contributions to complying
fund – nature of compulsory superannuation laws as tax in
constitutional sense
BANKRUPTCY – where First Respondent has filed for bankruptcy
prior to Court reserving judgment – whether leave granted to
Applicant to proceed under s 58(3)(b) of the Bankruptcy Act 1966
(Cth) – where Court has already heard evidence in the case
– where trustee of bankrupt estate neither agrees nor objects
to leave being granted
PRACTICE AND PROCEDURE – where Applicant assisted by
unadmitted acquaintance who appears to have been holding himself
out as lawyer – whether judgment reasons should be referred
to Law Society of New South Wales
Constitution ss 51(ii), 51(xx), 51(xxxi), 51(xxxvii), 55, 122
Bankruptcy Act 1966 (Cth) s 58(3)(b)
Evidence Act 1995 (Cth) s 29(2)
Fair Work Act 2009 (Cth) ss 30H, 30N, 30L, 42, 44, 45, 46, 47, 61,
87, 90, 539, 545
Leave be granted to the Applicant to proceed against the Bankrupt
Estate of the First Respondent.
Judgment for the Applicant against the First Respondent for
$17,583.26.
Legislation
Commonwealth
Bills
Paid Parental Leave Amendment (Flexibility Measures) Bill
2020
Finally passed both Houses 11 June 2020 Assent Act no:
53 Year: 2020 16 June 2020
Amends the: Paid Parental Leave Act 2010 to implement changes to
the paid parental leave scheme to enable eligible claimants to
claim up to 30 days of parental leave pay (PLP)
within 24 months of the birth or adoption of a child, in addition
to 12 weeks of PLP within 12 months of the child's birth or
adoption; and A New Tax System (Family Assistance)
Act 1999 and A New Tax System (Family Assistance)
(Administration) Act 1999 to make consequential amendments.
Paid
Parental Leave Amendment (Flexibility Measures) Act
2020
Act No. 53 of 2020 17 June 2020
Fair Work Amendment (One in, All in) Bill
2020
Registered 15 June 2020 Introduced HR 15 June 2020
This bill extends the FWC's jurisdiction to deal with disputes
about whether an employee is eligible for the JobKeeper scheme. The
FWC cannot make an order on or after the end date of the Jobkeeper
scheme which is 28 September 2020
Regulations
Paid
Parental Leave Amendment (Coronavirus Economic Response) Rules
2020
This instrument amends the Paid Parental Leave Rules
2010 to assist people who have been affected by the economic
impacts of the Coronavirus (COVID-19) pandemic to
be eligible for parental leave pay or dad and partner pay (17 June
2020).
Fair
Work Amendment (Variation of Enterprise Agreements No. 2)
Regulations 2020
These regulations amend the Fair Work Regulations 2009 to
repeal amendments made by the Fair Work Amendment (Variation of
Enterprise Agreements) Regulations 2020, which modified the period
that employees must have access to a copy of a proposed variation
of an enterprise agreement, and before which employees must be
notified of the details of the vote on the variation (the
'access period'), from seven days to one day. This
measure was intended to be a time-limited change to enable
employers and their employees to quickly respond to issues that may
arise in response to COVID-19 (12 June 2020).
Aged
Care (Leave from Residential Care Services) (Situation of
Emergency—Human Coronavirus with Pandemic Potential)
Determination 2020
This instrument declares the current COVID-19 pandemic
as a situation of emergency for the purposes of subsection 42-2A(1)
of the Aged Care Act 1997. Under this determination, emergency
leave will be available to permanent aged care residents across
Australia from 1 April 2020 to 30 September 2020 (2 June 2020).
Queensland
Bills
Community Services Industry (Portable Long Service Leave)
Bill 2019
Stage reached: Passed with amendment on 17/06/2020
Assent Date: 22/06/2020 Act No: 19 of 2020Commences: see Act for
details
Subordinate legislation reminder
This regulation commences on 1 July 2020
Building and Construction Industry (Portable Long
Service Leave) (Levy Changes) Amendment Regulation 2020 (Qld)
This Regulation is made under the Building and
Construction Industry (Portable Long Service
Leave) Act 1991. The policy objectives is to remove the
tiered levy structure which currently provides discounted levy
rates to very large projects and replace it with a single levy rate
for leviable matters, and to increase the portable long service
leave levy from 0.25 per cent to 0.35 per cent.
Workers' Compensation and Rehabilitation (QOTE)
Notice 2020 (Qld)
12 June 2020 - This Notice is made under the Workers'
Compensation and Rehabilitation Act 2003 (the
Act). Compensation entitlements of injured workers and
dependants of deceased workers under the Act are subject to
indexation in accordance with increases in Queensland Ordinary Time
Earnings (QOTE) to ensure the relative value of
those amounts over time. Under section 10A of the Act, the
Workers' Compensation Regulator must, before the start of a
financial year, notify QOTE for the financial year and the
percentage difference in QOTE for the financial year compared to
QOTE for the previous financial year.
Victoria
Acts
Wage Theft Act 2020 (Vic)
Act Number: 21/2020 Date of assent: 23 June 2020
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.
