In the media
ACT Government introduces bill to tackle overpayment and
workplace privacy concerns
On 15 February 2018, the Workplace Legislation Amendment Bill
2018 (ACT) (the Bill) was introduced in the
ACT Parliament. The Bill provides for employer deductions from an
employee's salary where an overpayment has occurred (26
February 2018). More...
Court penalises CFMEU "gatekeeper" for
enforcing 'no-ticket, no-start' on Melbourne construction
site
The Federal Court today imposed penalties totalling $105,000
against the CFMEU and a shop steward for stopping two workers, who
were not financial members of the CFMEU, from working on the Quest
Apartments construction site in Melbourne (26 February 2018).
More...
New legal action focuses on redundancy
laws
The Fair Work Ombudsman has brought proceedings relating to
redundancy entitlements, in a new legal action against services
company Spotless Services Australia Limited for allegedly
contravening workplace laws when it terminated the employment of
three workers at Perth International Airport (27 February 2018).
More...
$81,000 in penalties after Perth security company offers
"lame excuse" for underpaying guards
A Perth security company has been penalised in Court for
underpaying its guards more than $200,000, with a Judge saying the
company's claim that it thought overpaying in relation to
minimum rates would "counteract" other rates of pay was a
"lame excuse" (20 February 2018).
More...
Tax office staff told to dob in time-wasting colleagues
in 'fraud' crackdown
The Australian Tax Office is urging staff to report colleagues who
take long lunches or waste time by eating breakfast or reading
newspapers at work (19 February 2018).
More...
Being "too busy and lazy" to keep records
results in $43,200 in penalties for massage parlour
operator
The operator of a number of massage parlours in Adelaide who said
he was "too busy and lazy" to keep proper records has
been penalised for contraventions of record-keeping and pay slip
laws, following legal action by the Fair Work Ombudsman (16
February 2018).
More...
Victorian Labour Hire Licensing Bill 2017
Follows Similar Moves In QLD and SA
On Thursday 8 February 2018 the Labor Hire Licensing Bill
2017 (Vic) (the Bill) passed the Victorian
Legislation Assembly and was introduced into the Victorian
Legislative Council, bringing Victoria closer to the enactment of
labour hire laws similar to those which have already been enacted
in Queensland and South Australia (15 February 2018). More...
Australian Building and Construction Commissioner v
CFMEU [2018] HCA 3: Pecuniary Penalties for Industrial
Action
On 14 February 2018, the High Court handed down judgement in the
case of Australian Building And Construction Commissioner v
Construction, Forestry, Mining And Energy Union [2018] HCA 3.
The majority of the Court allowed the appeal, which concerned the
issue of whether a judge has power to order that a union not
indemnify a union official against a pecuniary penalty ('a
non-indemnification order'), or that a union official not seek
or accept an offer of indemnity from the union in respect of a
pecuniary penalty imposed on the union official ('personal
payment order') (14 February 2018). More...
More...
Fair Work Ombudsman Inquiry uncovers rampant
exploitation of Woolworths cleaners
Cleaning contractors at 90 per cent of Woolworths' Tasmanian
supermarket sites were not complying with workplace laws, a Fair
Work Ombudsman Inquiry has found (14 February 2018).
More...
$121,000 penalty imposed for "outrageous
exploitation of a young person"
Michael Patrick Pulis, a business operator who told his employee to
"seriously, f**k off..." when the worker asked when he
would receive money owed to him, has been penalised $21,500 (13
February 2018).
More...
Greens introduce CTH Bill to implement 10 days paid
leave for domestic violence
On 5 February 2018 the Fair Work Amendment (Improving National
Employment Standards) Bill 2018 (CTH) (the
Bill) was introduced into the House of
Representatives by Greens MP Adam Bandt. The Private Member's
Bill aims to provide up to 10 days of paid family and domestic
violence leave for employees (13 February 2018). More...
Coal miner denied workplace accident pay because of
casual status leads class action
Simon Turner is leading a class action for BHP miners injured on
the job, saying he is facing life on the street after a workplace
accident at the largest coal mine in NSW left him disabled and
destitute (10 February 2018).
More...
Melbourne firefighters told to reject
'duplicitous' workplace agreement
The United Firefighters Union tells Melbourne firefighters to
reject a new workplace agreement, saying an explanatory note that
was part of the deal would give management the option to alter
entitlements at any time and effectively deregulate the workplace
(07 February 2018).
More...
Underpayments drop as trolley collection undertaking
continues
The Fair Work Ombudsman has welcomed findings of improved wage
compliance and accountability in Coles' trolley collection
network, with 91 per cent of the supermarket giant's stores now
with 'in-house' trolley collection (07 February 2018).
More...
In practice and courts
ROC reminder: New disclosure document requirements
commencing on 29 January 2018
The purpose of this notice is to advise you of the new requirements
for disclosure documents, introduced by the Fair Work Amendment
(Corrupting Benefits) Regulations 2017, which commenced on 29
January 2018, Disclosures must now be made using the new prescribed
form in Schedule 2.1A of the Fair Work Regulations 2009
(see r.2.06AA(1)(b) & 2(b), Fair Work Regulations).
More...
Cases
Australian Building and Construction Commissioner v Construction,
Forestry, Mining and Energy Union (Castlemaine Police Station
Case) [2018] FCAFC 15
INDUSTRIAL LAW – appeal from a judgment of the Federal Court
of Australia where certain findings of fact were made by the trial
judge in relation to the conduct of a permit holder – where
the trial judge found that the permit holder did not "act in
an improper manner" within the meaning of s500 of the Fair
Work Act 2009 (Cth) – whether the trial judge erred at
law by failing to find that the permit holder had acted in an
improper manner.
Building Construction Industry (Consequential and Transitional
Provisions) Act 2016 (Cth) Sch 2 cl 19; Fair Work Act
2009 (Cth) ss12, 480, 487, 489, 495, 497, 498, 500, 512, Pt
3-4; Fair Work (Building Industry) Act 2012 (Cth) ss51,
51(2), 51(3), 51(4), 51(5); Federal Court of Australia Act
1976 (Cth) ss4, 24(1); Occupational Health and Safety Act
2004 (Vic).
Australian Building and Construction Commissioner v Construction,
Forestry, Mining and Energy Union [2018] HCA
3
Leave is granted for the appellant to amend the notice of appeal in
the manner set out in the proposed amended notice of appeal
exhibited to the affidavit of Brendan Charles dated 10 November
2017.
Industrial law – Pecuniary penalties – Where union
official contravened civil remedy provision of Fair Work Act
2009 (Cth) – Where union contravened civil remedy
provision through union official's conduct – Where s546
of Fair Work Act provides court can order person to pay pecuniary
penalty – Where s545(1) of Fair Work Act provides court can
make any order it considers appropriate if satisfied person
contravened, or proposes to contravene, civil remedy provision
– Where pecuniary penalties imposed on both union official
and union – Whether s545(1) or s546 of Fair Work Act or s23
of Federal Court of Australia Act 1976 (Cth) empowers court to
order that union not indemnify union official against pecuniary
penalty – Whether s545(1) or s546 of Fair Work Act or s23 of
Federal Court of Australia Act empowers court to order
that union official not seek or accept indemnity or contribution
from union in respect of pecuniary penalty.
Australian Building and Construction Commissioner v Construction,
Forestry, Mining and Energy Union (Bendigo Theatre Case)
[2018] FCA 122
INDUSTRIAL LAW – alleged contraventions of ss497 and 500 of
the Fair Work Act 2009 (Cth) at a building site in Bendigo
by officers of the CFMEU – whether there is evidence to
support findings of the alleged contraventions – whether the
CFMEU is liable for any contraventions committed by its officers
pursuant to ss550 or 793 of the Fair Work Act 2009 (Cth)
or pursuant to principles of common law vicarious liability.
Australian Building and Construction Commissioner v Construction,
Forestry, Mining and Energy Union (The Quest Apartments Case) (No
2) [2018] FCA 163
INDUSTRIAL LAW – where the Federal Court had found
contraventions of ss346(b), 348 and 349(1)(a) of the Fair Work
Act 2009 (Cth) by an officer of the Construction, Forestry,
Mining and Energy Union at a construction site – where the
officer was found, among other things, to have knowingly
misrepresented to workers that they could not work on the site
unless they paid fees to the union – where the union was
found to be liable for the contraventions pursuant to ss363 and 793
of the Fair Work Act 2009 (Cth) – consideration of
appropriate penalties – consideration of s556 of the Fair
Work Act 2009 (Cth) and the need to avoid civil double
jeopardy – consideration of whether any penalty imposed upon
the officer ought to be wholly suspended.
Australian
Building and Construction Commissioner v Construction, Forestry,
Mining and Energy Union (The Bay Street Case) [2018] FCA
83
INDUSTRIAL LAW – Fair Work Act 2009 (Cth)
(FW Act), ss346(b), 347, 348 – where an
officer of an industrial association identified deficiencies in the
facilities for workers at a workplace – where workers,
following a meeting with officers of the industrial association,
took industrial action when the employer did not improve the
facilities at the workplace – whether the identification of
deficiencies is to be understood as a request to improve the
facilities – whether the failure by the employer to accede to
the request of the industrial association amounted to engaging in
industrial activity under ss347(b)(iv) or 347(b)(v) for the
purposes of ss346(b) and 348 – whether refusal of an
industrial claim can be said to be a refusal to "represent or
advance the views, claims or interests" of the industrial
association for the purposes of s347(b)(v) – refusal of a
claim is an action of a different character to refusing to
"represent or advance the views, claims or interests" of
the industrial association – consideration of preferred
construction of s347(b)(iv) of the FW Act – where context and
purpose of provision suggest that ss347(b)(i)–(v) directed at
the protection of freedom of association – reference to
"lawful request ... or requirement" to be read as request
or requirement to associate in or with the industrial association
– an industrial request made by an industrial association to
an employer lacks the necessary nexus to freedom of association to
fall within the scope of s347(b)(iv) – contrary view in
Esso Australia Pty Ltd v The Australian Workers' Union
[2015] FCA 758 and Australian Building and Construction
Commissioner v Australian Manufacturing Workers' Union (The
Australian Paper Case) [2017] FCA 167 not plainly wrong,
single judge bound to follow – elements of ss346(b) and 348
made out against officers – liability of industrial
association established via s793.
STATUTORY INTERPRETATION – Acts Interpretation Act
1901 (Cth) s15AB – the circumstances in which reference
may be made to extrinsic materials, including an explanatory
memorandum.
Australian
Building and Construction Commissioner v Construction, Forestry,
Mining and Energy Union [2018] FCA 42
INDUSTRIAL LAW – exercise of State or Territory OHS rights
without an entry permit – permit holder hindering or
obstructing or otherwise acting in an improper manner –
adverse action – coercive conduct – where subcontractor
had a "workplace right" to initiate a process of
bargaining for a new enterprise agreement – where union
engaged in campaign to secure site allowances in enterprise
agreements – accessorial liability – whether an
individual can be an accessory to the conduct of a union which
arose by reason of the individual's conduct being deemed to be
the conduct of the union – whether union can be deemed to
have contravened a provision of the Fair Work Act 2009
(Cth) which the union itself could not have contravened –
whether defect in or absence of a Notice of Employee
Representational Rights precludes the existence of a
"workplace right" to initiate a process of bargaining for
a new enterprise agreement – whether applicant must prove
that coercive conduct was taken in personal capacity or on own
behalf.
PRACTICE AND PROCEDURE – privilege against self-
incrimination – where Respondents reserve right to claim
privilege – split hearing – where protracted
adjournment after election to allow for the filing of evidence.
Construction, Forestry, Mining and Energy Union v Hail Creek Coal
Pty Ltd [2018] FCA 125
INDUSTRIAL LAW – where employees' salaries were reduced
following reduction in shift lengths – finding that employees
were underpaid – finding that employer contravened enterprise
agreement. Fair Work Act 2009 (Cth) s 50.
Fair Work Ombudsman v Phua & Foo Pty Ltd [2018] FCA
137
INDUSTRIAL LAW - penalty determination - admitted contraventions of
s45 of the Fair Work Act 2009 (Cth) - failure to pay
minimum rates, casual loading and weekend penalty rates in
accordance with the FW Act and the Restaurant Industry Award
2010 – appropriate penalty.
Fairwork Ombudsman v Nobrace Centre Pty Ltd & Ors [2018]
FCCA 378
INDUSTRIAL LAW – Applicant arrived in Australia on working
holiday visa – visa due to expire – applicant seeks and
obtains employer's sponsorship on application for Temporary
Work (Skilled) Visa (subclass 457) – criterion of visa
application requires applicant to receive remuneration not less
than $50,000 per annum – sham employment contract executed
– employee pay and PAYG income tax recorded and calculated
according to sham – net pay calculated and paid at lower
hourly rate – employee not passive participant in sham
– employee requests and obtains employer's support for
permanent visa – sale of business – employment
terminated – sponsorship visa withdrawn –
Ombudsman's investigation – employee's rate of pay
below that prescribed by Award – other entitlements not paid.
INDUSTRIAL LAW – Contravention of Fair Work Act 2009
(Cth) – contravention of Fair Work Regulations 2009
(Cth) – failure to pay minimum entitlements prescribed by
Health Professionals and Support Services Award 2010
– failure to pay minimum wage prescribed by award and other
entitlements – unauthorised deductions from employee's
pay – failure to keep records – false and misleading
records – failure to provide pay slips within one day of
payment – failure to comply with notice to produce –
whether reasonable excuse for non-compliance.
ACCESSORIAL LIABILITY – Involvement in contravention –
necessary that secondary participant had sufficiently direct and
practical connection to the wrongdoing – sufficient to
establish that participants were aware of material facts and
circumstances constituting the contraventions – not necessary
for participant to have turned their mind to legal characterisation
or to the legality of the principal's conduct – not
necessary for participant to have intended result of
principal's conduct or that it might cause injury or damage
– whether honest ignorance that award did not apply –
intentional participant – actual knowledge – knowledge
of essential elements of facts comprising primary contravention
– knowledge that an award conferred certain entitlements
– knowledge of the name of the particular award not necessary
– knowledge of precise amount prescribed by award not
necessary – knowledge of the rates being paid – wilful
blindness – deliberate abstention from inquiry –
negligence or recklessness not sufficient – combination of
suspicious circumstances and failure to make inquiry may suffice
– whether knowledge that system of payment of employee
entitlements was non-compliant with Act, Regulations or Award
grounds involvement in a contravention – relief –
declarations granted – existence of threat of continuation of
conduct not proved – no utility in injunctions. ACCESSORIAL
LIABILITY – Involvement in contravention – necessary
that secondary participant had sufficiently direct and practical
connection to the wrongdoing – sufficient to establish that
participants were aware of material facts and circumstances
constituting the contraventions – not necessary for
participant to have turned their mind to legal characterisation or
to the legality of the principal's conduct – not
necessary for participant to have intended result of
principal's conduct or that it might cause injury or damage
– whether honest ignorance that award did not apply –
intentional participant – actual knowledge – knowledge
of essential elements of facts comprising primary contravention
– knowledge that an award conferred certain entitlements
– knowledge of the name of the particular award not necessary
– knowledge of precise amount prescribed by award not
necessary – knowledge of the rates being paid – wilful
blindness – deliberate abstention from inquiry –
negligence or recklessness not sufficient – combination of
suspicious circumstances and failure to make inquiry may suffice
– whether knowledge that system of payment of employee
entitlements was non-compliant with Act, Regulations or Award
grounds involvement in a contravention – relief –
declarations granted – existence of threat of continuation of
conduct not proved – no utility in injunctions.
Fair Work Ombudsman v Tac Pham Pty Ltd [2018] FCA
120
INDUSTRIAL LAW – the first respondent operated a restaurant -
the first respondent contravened the Restaurant Industry Award
2010 by underpaying its part-time employees – the
respondents agreed a statement of facts and made admissions of
contraventions of the Fair Work Act 2009 (Cth) –
appropriate pecuniary penalty.
SDAEA v Arora; SDAEA v Arora Markets Pty Ltd & Ors [2018]
FCCA 85
INDUSTRIAL LAW – Fair Work Act contraventions – non
payment of employee entitlements – Easter Sunday day in lieu
payment and superannuation – failure to remit union dues
deducted from wages – facts admitted – declarations
made – consideration of claims for compensation, interest and
penalties.
Australian
Workers' Union v BlueScope Steel (AIS) Pty Ltd [2018] FCA
80
INDUSTRIAL LAW – alleged contravention of s50 of the Fair
Work Act 2009 (Cth) – whether employer contravened a
term of enterprise agreement by failing to make superannuation
contributions – whether a term of an enterprise agreement
must be a source of legal obligation to make out a contravention of
s50 of the Fair Work Act 2009 (Cth) – whether
superannuation legislation the sole source of legal obligation to
make superannuation contributions – whether clause of
enterprise agreement related to superannuation contributions the
source of an independent legal obligation to make
contributions.
SUPERANNUATION – construction and application of the terms
"ordinary time earnings" and "ordinary hours of
work" in s6(1) of the Superannuation Guarantee
(Administration) Act 1992 (Cth) – where employees paid
either an annualised or aggregate salary – where annualised
and aggregate salary included components for additional hours and
public holidays – where employees required to work additional
hours and public holidays – whether additional hours
component of an annualised salary were "ordinary time
earnings" – whether public holiday component of either
an annualised or aggregate salary were "ordinary time
earnings" – whether employees in fact worked additional
hours and public holidays as "ordinary hours of
work".
Kumar
v Consulate General of India, Sydney [2018] FCCA
7
INDUSTRIAL LAW – Fair Work – Claim for payment under
the Clerks – Private Sector Award 2010 –
application of the award to a foreign government employer
considered.
Australian Building and Construction Commissioner v Construction,
Forestry, Mining and Energy Union (Castlemaine Police Station
Case) [2018] FCAFC 15
INDUSTRIAL LAW – appeal from a judgment of the Federal Court
of Australia where certain findings of fact were made by the trial
judge in relation to the conduct of a permit holder – where
the trial judge found that the permit holder did not "act in
an improper manner" within the meaning of s500 of the Fair
Work Act 2009 (Cth) – whether the trial judge erred at
law by failing to find that the permit holder had acted in an
improper manner. Appeal allowed.
Australian
Building and Construction Commissioner v Construction, Forestry,
Mining and Energy Union [2018] FCA 42
INDUSTRIAL LAW – exercise of State or Territory OHS rights
without an entry permit – permit holder hindering or
obstructing or otherwise acting in an improper manner –
adverse action – coercive conduct – where subcontractor
had a "workplace right" to initiate a process of
bargaining for a new enterprise agreement – where union
engaged in campaign to secure site allowances in enterprise
agreements – accessorial liability – whether an
individual can be an accessory to the conduct of a union which
arose by reason of the individual's conduct being deemed to be
the conduct of the union – whether union can be deemed to
have contravened a provision of the Fair Work Act 2009
(Cth) which the union itself could not have contravened –
whether defect in or absence of a Notice of Employee
Representational Rights precludes the existence of a
"workplace right" to initiate a process of bargaining for
a new enterprise agreement – whether applicant must prove
that coercive conduct was taken in personal capacity or on own
behalf.
PRACTICE AND PROCEDURE – privilege against self-
incrimination – where Respondents reserve right to claim
privilege – split hearing – where protracted
adjournment after election to allow for the filing of evidence.
Australian Building and Construction Commissioner v
O'Connor (No 3) [2018] FCA 43
EVIDENCE – whether leave should be granted for a witness to
revive their memory under s32(1) of the Evidence Act 1995
(Cth) – whether the matters in s 32(2) of the Evidence Act
are satisfied – whether leave should be granted for a witness
to read aloud part of their evidence in accordance with s32(3) of
the Evidence Act – whether any of the factors listed under
s192(2) of the Evidence Act lead to the conclusion that leave for a
witness to revive their memory under s32(1) of the Evidence Act
should be refused – whether evidence ought to be excluded or
limited in its use under ss135 or 136 of the Evidence Act –
whether exceptions to the hearsay rule apply under ss63 and 64 of
the Evidence Act.
INDUSTRIAL LAW – whether the first respondent was seeking to
exercise rights under Part 3-4 of the Fair Work Act 2009
(Cth) – whether the first and third respondents contravened
ss348, 355 and 500 of the Fair Work Act – whether the second
respondent contravened ss348 and 355 of the Fair Work Act –
whether the third respondent is liable for a contravention of s500
of the Fair Work Act by reason of ss363 and 793 of the Fair Work
Act – whether the second and third respondents contravened
s550 of the Fair Work Act – whether each of the respondents
ought to pay pecuniary penalties under s546 of the Fair Work
Act.
COSTS – whether the applicant is liable to pay the
respondents' costs of an adjournment pursuant to s43 of the
Federal Court of Australia Act 1976 (Cth) and s570 of the
Fair Work Act.
Registered
Organisations Commissioner v Transport Workers' Union of
Australia [2018] FCA 32
INDUSTRIAL LAW – civil penalty proceedings – admitted
contraventions by Respondent of certain provisions of Fair Work
(Registered Organisations) Act 2009 (Cth) – other
contested allegations of contravention of statute –
consideration of whether contested allegations made out –
consideration of appropriate penalty in circumstances.
STATUTES – Fair Work (Registered Organisations) Act
2009 (Cth) – admitted contraventions of s231(1) by
failing to keep copy of register of members as it stood on 31
December each year in respect of NSW Branch and WA Branch of
Respondent.
STATUTES – Fair Work (Registered Organisations) Act
2009 (Cth) – admitted contraventions of s172(1) by
failing to remove non-financial members from register of members in
respect of NSW Branch of Respondent.
STATUTES – Fair Work (Registered Organisations) Act
2009 (Cth) – contested allegation that Respondent
contravened s231(2) by failing to keep copy of part of register of
members comprised of roll of voters in respect of Queensland Branch
of Respondent on day before roll closed.
STATUTES – Fair Work (Registered Organisations) Act
2009 (Cth) – contested allegation that Respondent
contravened s235(2) by failing to make available to Delegate of
Applicant copy of part of register of members comprised of roll of
voters in respect of Queensland Branch of Respondent on day before
roll closed.
The FWC Bulletin
This weekly update lists current FWC decisions:
Volume
7/18 22 February 2018
Volume
6/18 15 February 2018
Volume
5/18 8 February 2018
Volume
4/18 1 February 2018
Legislation
Commonwealth
Bills introduced into Parliament
Fair Work Amendment (Protecting Take Home Pay of All Workers) Bill 2017House of Representatives Removed from the Notice Paper in
accordance with (SO 42) 13 February 2018.
Amends the Fair Work Act 2009 to: ensure that penalty
rates in a modern award cannot be varied to make the penalty rate
lower than that in force under the award on 30 June 2017; provide
that any such determination made by the Fair Work Commission made
on or after 22 February 2017 is of no effect; and ensure that
penalty rates cannot be reduced in any future greenfields or
non-greenfields enterprise agreement if an employee is worse off
than they would have been under the award, by virtue of the fact
that the employee works only or mainly on days on which penalty
rates are paid.
Fair Work Amendment (Improving National Employment Standards) Bill
2018
House of Representatives Second reading moved 05 February 2018.
Amends the Fair Work Act 2009 to amend the National
Employment Standards to enable an employee who experiences family
or domestic violence to take up to 10 days paid family and domestic
violence leave per year or 2 days of unpaid family and domestic
violence leave for each permissible occasion.
New South Wales
Bills introduced Non-Government – week ending 09 February
Industrial Relations Amendment (Contracts of Carriage) Bill 2018Victoria
Bills
Labour Hire Licensing Bill 2017
Council - 2nd reading (passed Assembly) 08 February 2018.
Queensland
Subordinate Legislation as made – 23 February
2018
No 18:
Industrial Relations Regulation 2018
The purpose of the Regulation is to give full effect to certain
provisions in the Industrial Relations Act 2016. Various
sections of the IR Act permit certain content or additional
direction to be prescribed by regulation. Matters included in the
Regulation are generally those considered to be too technical or
detained to be included in corresponding provision of the primary
legislation. The Regulation sets out requirements and procedures
for elements of the IR Act, including: authorisation of industrial
officers; recovery of overpaid wages; fees and charges of private
employment agents, and management of registered industrial
organisations, including the conduct of elections, requirements for
financial policies, reporting and procedures for amalgamations and
withdrawals. The Regulation also declares certain employers not to
be employers covered by the national system as set out in the
Fair Work Act 2009.
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.