In the media
ABCC alleges right of entry breach against Tasmanian
CFMMEU official
The ABCC has commenced Federal Court action in Tasmania
alleging the CFMMEU and its official Richard Hassett breached
Federal right of entry laws at the Cattle Hill Wind Farm project
site in Lake Echo earlier this year (29 April 2019).
More...
ABCC alleges labour hire company and contractor
discriminated against worker because of age
The ABCC has commenced proceedings in the Federal Court
against labour hire company, Corestaff WA, and contractor, Gumala
Enterprises, alleging they discriminated against a worker because
of his age (26 April 2019).
More...
Flight Centre accused of 'systematically underpaying
workers'
Federal Court action is launched against Australian travel
giant Flight Centre by five current and former employees claiming
the company failed to pay minimum wages, penalty and overtime
rates, correct annual leave loading and did not provide the correct
rest and meal breaks (26 April 2019).
More...
Agri Labour Australia forced to pay more than $50,000 to
Vanuatu labourers working in northern Victoria
A labour hire company has been forced to pay more than
$50,000 to a group of labourers from Vanuatu who were underpaid
while working on a tomato farm in northern Victoria. Fair Work
inspectors found the company paid some workers a group piecework
rate, based around the number of tomatoes picked by the group (24
April 2019).
More...
Australian Industry Group calls for industrial relations
freeze until new senators take office
One of Australia's leading business lobby groups is
urging crossbench senators not to pass any industrial relations
changes if Parliament sits before the Senate changes over. The
possibility arises because while members of Parliament are sworn in
once results are officially declared new senators will only
commence their terms on July 1 (22 April 2019).
More...
Queensland electrical contractor penalised almost
$40,000
A Queensland electrical contracting company and its
director have been penalised for ignoring a Fair Work Commission
order to compensate an employee who was unfairly dismissed,
following action by the Fair Work Ombudsman (18 April 2019).
More...
Marine scientist's sacking by James Cook University
'unlawful', court rules
Dr Peter Ridd was unlawfully sacked by James Cook
University in north Queensland for criticising his colleagues'
research on the impacts of climate change on the Great Barrier
Reef, the Federal Circuit Court of Australia rules (16 April 2019).
More...
CFMMEU and officials penalised $58,500 following
attempts to coerce crane company into enterprise agreement
The Federal Court in Brisbane has imposed $58,500 in
penalties against the CFMMEU, its State Secretary Michael Ravbar
and fellow union official Andrew Sutherland over their unlawful
action on the Legacy Way Port Connect Project in 2012 (15 April
2019).
More...
Full court increases penalties in nine Brisbane sites
appeal
The Full Federal Court has upheld the ABCC's appeal to
increase penalties awarded against the CFMMEU over 16 strikes and
work stoppages at nine Brisbane construction sites in August and
September 2016 (12 April 2019).
More...
ABCC alleges CFMMEU official racially abused safety
supervisor
The ABCC has commenced legal proceedings in the Federal
Court against the CFMMEU and its official John Windus alleging he
racially abused a safety supervisor at a Perth construction site in
February this year (09 April 2019).
More...
CFMMEU officials stop workers over one hour pay
claim
The ABCC has commenced legal proceedings in the Federal
Court against the CFMMEU and two of its organisers, Anthony Sloane
and Brendan Holl, after they stopped workers on a Sydney
construction site in February 2018 (08 April 2019).
More...
Full federal court imposes $1.7M in penalties against
CFMMEU for "executing illegal industrial activity" at
Barangaroo site
The Full Federal Court has today imposed penalties
totaling $1.7 million against the CFMMEU and a number of its senior
officials, including its former and current State Secretaries Brian
Parker and Darren Greenfield, for unlawful conduct at the
Barangaroo site (05 April 2019).
More...
Our 'culture of underpayment' must be
eradicated
The Migrant Workers Taskforce Report, which landed last
month, recommended criminal sanctions for "clear, deliberate
and systemic" cases of exploitation. The government has
accepted this recommendation. This is a bold step: Australian
workplace law has generally imposed only civil penalties for
underpayments and other statutory breaches (05 April 2019).
More...
Farmers say Fair Work Commission ruling on casual
workers will increase cost of fresh fruit and vegetables
The Fair Work Commission hands down its ruling on casual
wages for the horticultural sector, and farmers are not happy (05
April 2019).
More...
Time for a standard work expenses tax deduction says
watchdog
A standard deduction for work-related expenses should be
re-examined with a view to eradicating the need for millions of
Australians to lodge tax returns, the nation's tax watchdog has
recommended (04 April 2019).
More...
Federal Court penalises CFMMEU $78,000 after coercing
worker to pay union fees
The Federal Court has imposed total penalties of $78,000
against the CFMMEU and two of its shop stewards for coercing a
worker to pay union fees on two separate construction sites in the
Melbourne CBD (04 April 2019).
More...
Published - reports, articles, speeches
Department of Jobs and Small Business: Monthly leading
indicator of employment April 2019
The Department of Jobs and Small Business' Monthly
Leading Indicator of Employment (the Indicator) has fallen for the
twelfth consecutive month in April 2019, following a rise of eight
consecutive months.
More...
"Flexible ongoing" employment: solving a
problem that doesn't exist
Emma Dawson, Abigail Lewis, Warwick Smith; Per Capita: 23
April 2019
This paper outlines the context within which the flexible ongoing
proposal arose, the WorkPac vs. Skene decision, and the NSWBC's
concerns about "double dipping." It then examines the
nature of casual work in Australia and provides an analysis of how
the proposed flexible ongoing category. More...
Policy priorities for the next Australian government:
employment
Australian Council of Social Service: 12 April 2019
Australia's peak body for social services has released its
employment election policy priorities, designed to foster full
employment, reduce long-term unemployment, and support an effective
employment services system. More...
Expanding economic opportunity: an international
comparison of Australia's labour market regulation
Kurt Wallace, Institute of Public Affairs: 01 April
2019
This report presents a comparison of Australia's labour market
entitlements with similar common law countries, and looks at how
the labour market is perceived in ways that affect investment and
growth. More...
Australian Bureau of Statistics
24 April 2019
Labour Force, Australia, Detailed - Electronic Delivery, Mar
2019 (cat no. 6291.0.55.001)
18 April 2019
Labour Force, Australia, Mar 2019 (cat no. 6202.0)
17 April 2019
Employment in Renewable Energy Activities, Australia, 2017-18
(cat no. 4631.0)
In practice and courts
FWO: Changes to the Horticulture Award
Our Pay
Calculator has been updated and you can use it to calculate the
new overtime, night loading and public holiday penalty rates. The
changes apply from the first full pay period on or after 15 April
2019 (April 2019).
More...
FWO: Public holidays
Public holidays can be different depending on the state or
territory you work in. It's important to know when public
holidays are because employees can get different entitlements on
these days. You can calculate these entitlements using our Pay
Calculator. Go to our List of public holidays page
here for a full list of public holidays in your state or
territory (April 2019). More...
ABCC e-alert: Contractor APM issued exclusion sanction
following building code breach
Victorian building company APM Group
(Aust) Pty Ltd (APM) and its
related entity APM Holdings (Aust) Pty Ltd has
been issued a one-month exclusion sanction for its failure to
comply with state security of payments legislation (10 April 2019).
More...
Labour-hire licensing scheme commences 29 April
2019
Labour-hire providers will have six months to apply for a
licence to operate in the State after this time. To obtain and keep
a licence, labour-hire firms will need to pass a "fit and
proper person test", which involves demonstrating long-term
compliance with Victoria's OHS and workers' compensation
Acts. More...
Cases
Carr v ILSC (Brisbane) Pty Ltd & Anor, Pathik v
ILSC (Brisbane) Pty Ltd & Anor (No 2)
[2019] FCCA 1028
INDUSTRIAL LAW – Fair Work Act 2009 –
costs – whether rejection of offer of settlement
unreasonable.
COSTS – Calderbank offer at early stage of proceeding more
favourable than result achieved by offeree applicant –
whether unreasonably refused.
Ridd v James Cook University
[2019] FCCA 997
INDUSTRIAL LAW – Enterprise Agreement – Code
of Conduct – where Intellectual Freedom enshrined in
Enterprise Agreement – where Code of Conduct inconsistent
with Enterprise Agreement – primacy of Enterprise Agreement.
Fair Work Act 2009 (Cth), s.50. (1) The Court rules that
the 17 findings made by the University, the two speech directions,
the five confidentiality directions, the no satire direction, the
censure and the final censure given by the University and the
termination of employment of Professor Ridd by the University were
all unlawful
Australian Building and Construction Commissioner v
Construction, Forestry, Maritime, Mining and Energy Union (The Nine
Brisbane Sites Appeal) [2019] FCAFC
59
INDUSTRIAL LAW – appeal from a single judge of the
Federal Court – where respondents engaged employees and
subcontractors in stop-work meetings – contraventions of ss
355 and 346(b) of the Fair Work Act 2009 (Cth) –
whether respondents also contravened s 417 – whether
stop-work meetings were "industrial action" when
employers had agreed to or authorised union meetings under an
enterprise agreement – whether s 19(2)(a) applies –
proper construction of the union meeting clause in an enterprise
agreement – whether s 19(2)(a) authorises agreements with
respect to industrial action which could be taken for the unlawful
purpose of contravening sections of Pt 3-1 – whether there is
a requirement that a union meeting be for a "genuine"
purpose – whether a union meeting for an unlawful purpose is
a "sham" and unlawful under s 194(e) for inconsistency
with s 417
INDUSTRIAL LAW – pecuniary penalties imposed on the union
through individual union officers for contraventions of s 355 and s
346(b) by sixteen strikes or stop-work meetings over nine days
– whether more than one penalty should be imposed on those
days in which there were multiple contraventions on multiple sites
– application of s 556 for contraventions on the same date
– application of course of conduct principle –
deliberate, premeditated and sustained campaign of unlawful
industrial behaviour orchestrated by the union – extensive
and vast history of prior contraventions – involvement of
senior union officers – loss found to be likely greater on
the days where multiple sites affected – single penalty for
each day involving multiple contraventions across multiple sites
inadequate – appeal allowed in part
Parker v Australian Building and Construction
Commissioner [2019] FCAFC 56
INDUSTRIAL LAW – appeal and cross-appeal from
liability and penalty judgment of the Federal Court of Australia
– where primary judge imposed civil penalties on individuals
for breaches of ss 50, 348, 355 and 417 of the Fair Work Act
2009 (Cth) – where legal liability for contraventions of
individuals attributed to both the Construction, Forestry, Mining
and Energy Union (CFMEU) and CFMEU NSW –
whether primary judge had sufficient evidence to establish causal
link between site meeting and non-attendance of workers to
establish breach of s 417 – whether primary judge
impermissibly relied upon conduct of appellants on second day to
find industrial action on first day – whether primary judge
failed to make findings necessary to conclude there was a breach of
s 417 – whether insufficient evidence to find intention to
coerce in breach of s 348 and s 355 – whether no obligation
for appellants to engage in dispute resolution procedure and
primary judge therefore erred in finding contravention of s 50
– held: appeal on liability grounds dismissed
PRACTICE AND PROCEDURE – whether primary judge erred in
striking out pleadings on accessorial liability for contravention
of s 50 by reason of insufficient clarity – whether failure
to address and determine claim that individual appellants had
accessorial liability for CFMEU s 50 contravention arising from
conduct of those individuals – whether primary judge failed
to apply presumption in s 361 when dismissing s 348 claims against
individuals – held: cross-appeal upheld in part –
primary judge entitled to find pleaded allegation fell short of
clarity required but obliged to consider pleaded allegation of
accessorial liability for CFMEU contravention – declarations
of contravention by individuals made without further penalty being
imposed
INDUSTRIAL LAW – whether primary judge erred in rejecting
contention there was a single course of conduct at common law or
under s 557 – whether primary judge erred in finding
penalties imposed on individuals were appropriate in their totality
– where primary judge imposed civil penalties in the maximum
amount against the CFMEU and 75% of the maximum amount against the
CFMEU NSW – whether primary judge should have grouped
contraventions of the two Unions – whether penalties imposed
on the Unions appropriate in their totality – whether primary
judge erred in finding s 545 was a source of power to make
publication order – whether s 23 of the Federal Court of
Australia Act 1976 (Cth) did provide such a power if s 545
insufficient – whether primary judge erred in exercise of
discretion in making publication order as no proper basis and so
long after the event – held: appeal on penalty grounds upheld
in part – primary judge gave extensive and careful
consideration of conduct of individuals but omitted to give
adequate attention to totality in relation to Unions –
penalties treated attributed conduct as separate events each
warranting penalties in the maximum or 75% of the maximum amount
– needed to be account given to commonality and overlap of
attributed conduct – held: penalties on CFMEU reduced to 75%
of the maximum amount – penalties on CFMEU NSW reduced to 40%
of the maximum amount – s 23 sufficient source of power to
make publication order though regard must be had to the specific
legislation giving rise to the seeking of the order –
publication order set aside; not appropriate to make a replacement
publication order in the circumstances
Patrick Stevedores Holdings Pty Limited v Construction,
Forestry, Maritime, Mining and Energy Union
[2019] FCA 451
EVIDENCE – state of satisfaction required by s 140
of Evidence Act 1995 (Cth) – application of
principles to civil penalty proceedings – probabilities
derived from contemporaneous documents – significant amount
of evidence not challenged – forensic decision not to adduce
evidence in the respondents' case – Jones v Dunkel
inference – failure to call witness cannot make up deficiency
of evidence – where evidence is not contradicted any
inference favourable to that party might be more confidently drawn
where a person capable of putting the true complexion on the facts
has not been called – no explanation provided regarding the
failure to call any witnesses in the respondents' case
INDUSTRIAL LAW – contraventions of ss 417, 421, 340 of the
Fair Work Act 2009 (Cth) – where Union organised
unprotected industrial action – interpretation of enterprise
agreement – having regard to industrial purpose of agreement
– where Union alleged employees were directed to work
differently – relevance of dispute resolution procedure
– superficial change to aspects of the work insufficient
– whether suspected breach of enterprise agreement sufficient
to engage protection from industrial action – no reasonable
basis for belief of breach – contravention of 340 –
whether industrial action constituted adverse action – the
right to have employees perform work as required by the employer is
a benefit under a workplace instrument – necessity of proving
intent – no evidence adduced to discharge onus –
sufficient if one reason of many is unlawful – belief that
conduct was lawful does not make it so – alleged
contravention of s 343 – particularly serious form of
industrial misconduct – allegation made without detailed
argument as to why such a contravention should be found –
Court should receive further assistance on this issue
Australian Building and Construction Commissioner v
Ravbar (No 2) [2019] FCA 522
INDUSTRIAL LAW – penalties to be imposed for
contraventions of s 343 of the Fair Work Act 2009 (Cth)
– whether two penalties or two penalties with a notional
maximum of one should be imposed on the Construction, Forestry,
Maritime, Mining and Energy Union (CFMMEU) for the
contraventions of s 343 based on the conduct of the first and third
respondents – whether the conduct of the first and third
respondents form part of the same transaction or course of conduct
– how the CFMMEU's history of contraventions should be
taken into account in assessing an appropriate penalty – what
factors should be taken into account when assessing the objective
seriousness, or gravity, of the respondents' contravening
conduct – what the appropriate penalties should be - Fair
Work Act 2009 (Cth)
Legislation
Commonwealth
Acts
Corporations Amendment (Strengthening Protections for Employee
Entitlements) Act 2019
10/04/2019 - Act No. 44 of 20
Bills
Corporations Amendment (Strengthening Protections for
Employee Entitlements) Bill 2018
Amends the: Corporations Act 2001 to: strengthen
enforcement and recovery options to deter and penalise company
directors and other persons who engage in, or facilitate,
transactions that are aimed at preventing, avoiding or
significantly reducing employer liability for employee entitlements
in insolvency; enable the recovery of unpaid employee entitlements
of an insolvent company from certain entities in limited
circumstances; and enable the Australian Securities and Investments
Commission to disqualify company directors and other officers
(either directly or on application to the Court), where they have a
track record of corporate contraventions and inappropriately using
the Fair Entitlements Guarantee scheme to pay outstanding employee
entitlements; and Corporations (Aboriginal and Torres Strait
Islander) Act 2006 to make a consequential amendment.Finally
passed both Houses 04 April 2019.
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.
