Employment Law and Workplace Relations Monthly Update – In the media, in practice and courts, cases and legislation – Employment and HR – Australia -…

To print this article, all you need is to be registered or login on Mondaq.com.

Former accounting firm in courtThe Fair Work Ombudsman has commenced legal action in theFederal Circuit Court against the former operator of a Sydneyaccounting firm, UHY Sothertons Sydney Pty Ltd for allegedlyfailing to pay entitlements owing on termination of employment inthe context of a sale of business (29 June 2020). More...

ABCC successful in age discrimination caseIn a decision delivered by the Federal Court, a WesternAustralian labour hire company has been found to have discriminatedagainst a worker because of his age (26 June 2020). More...

Wake up call for labour hire employers on wagesAn Australian Building and Construction Commission(ABCC) audit of 63 labour hire employers revealeda disappointing 79 per cent didn't meet all their obligationsunder Australia's workplace laws (19 June 2020). More...

ABC signs Enforceable UndertakingThe Australian Broadcasting Corporation(ABC) has back-paid over $11.9 million to morethan 1,800 current and former casual staff and entered into anEnforceable Undertaking (EU) with the FWO. Thenational broadcaster has also reached agreement with the Fair WorkOmbudsman to make a "contrition payment" for underpayingmore than 1,900 casual staff over several years (19 June 2020). More...

Former Sydney entrepreneur penalisedThe Fair Work Ombudsman has secured $264,690 in penaltiesagainst a former Sydney entrepreneur, his wife and three companieshe operated in response to employees being underpaid more than $1million (18 June 2020). More...

Portable long service entitlements for Queenslandcommunity service workersThe Palaszczuk Government has passed legislation tointroduce a portable long service leave scheme for workers in thecommunity services industry (17 June 2020). More...

High Court asked to overturn 'double dipping'decisionLabour hire firm Workpac has launched a High Courtchallenge to a landmark ruling on casual employment, warning itwill expose businesses to up to $14 billion in backpay. Theapplication filed in the High Court by WorkPac seeks special leaveto appeal the decision of the Full Federal Court in the WorkPac vRossato case. More...

Wage Theft legislation passes Victorian ParliamentVictoria has become the first state in the country to passlaws establishing criminal penalties for employers who deliberatelyunderpay or don't pay their workers. New record keepingoffences are aimed at employers who attempt to conceal wage theftby falsifying or failing to keep records (17 June 2020). More...

Posties deliver security messageAustralia Post has confirmed that no postal worker will beforced to accept a redundancy as part of the temporary changes tothe postal service it has made in response to COVID-19 (15 June2020). More...

Court penalises CFMMEU for its "unconscionable waragainst free association" on building sitesThe Federal Court has penalised the CFMMEU and two of itsofficials $123,500 as a result of unlawfully coercing workers tojoin and pay membership fees to the union and coercingsubcontractors to pay "union rates" during constructionwork on Melbourne University's college site in Parkville in2016 (05 June 2020). More...

Slavery paper to free from bondageThe Department of Home Affairs has released a scopingpaper on how the Australian public sector can avoid supportingmodern slavery in its procurement and purchasing practices (04 June2020). More...

Transport company in courtThe Fair Work Ombudsman has commenced legal action in theFederal Circuit Court against Sydney-based passenger transportcompany, Ambient Transport Pty Ltd (03 June 2020). More... Over $200,000 penalties for restaurant underpaymentsThe Fair Work Ombudsman has secured penalties of $209,000against a Melbourne restaurateur, his two companies and hisin-house accountant for underpaying workers (01 June 2020). More...

ABCC: Industry Update 10 June 2020 EditionThe June edition of Industry Update features the latestinformation from the ABCC, Commonwealth, state and territoryinitiatives for the construction industry during and post theCOVID-19 pandemic, court outcomes and more. More...

Department of Jobs and Small Business: Monthly LeadingIndicator of Employment June 2020The Monthly Leading Indicator of Employment (theIndicator) has fallen for the seventh consecutive month inJune 2020, after three consecutive monthly rises. TheIndicator's decline this month is due to falls in three (out offive) of the Indicator's components. More...

The future is now: creating decent workpost-pandemicSunil Johal; Public Policy Forum: The COVID-19 pandemic,which swept across the globe in the early months of 2020, hasrapidly accelerated long-standing trends in labour markets andeconomies around the world. Income inequality, precarious work andthe digitisation of the economy are now issues that policymakersmust grapple with (12 June 2020). More...

Fair Work Ombudsman: 1.75% increase to minimumwagesThe Fair Work Commission has announced a 1.75% increase tominimum wages. Increases to awards will start on 3 different datesfor different groups of awards. Details outlined here (19 June2020). More...

FWC: Annual Wage Review 201920 decisionissuedThe Fair Work Commission has issued the Annual Wage Review201920 decision. A summary of the decision is available onthe Summaries of significant decisions page on the Commission'swebsite (19 June 2020). More...

Commonwealth Modern Slavery Statement PaperThis would report on modern slavery risks in theGovernment's procurement and investment activities and explainthe steps taken to identify and respond to those risks, and linkwith Australia's Modern Slavery Act 2018, the only legislationin the world requiring a Government to report on modern slaveryrisks in its procurement activities (04 June 2020). More...

FWC: Filing fee Dismissals, general protections& anti-bullying applicationsFrom 1 July 2020 the application fee for dismissals,general protections and anti-bullying applications made undersections 365, 372, 394, 773 and 789FC of the Fair Work Act 2009will increase to $74.50. Also effective from 1 July, the highincome threshold in unfair dismissal cases will increase to$153,600 and the compensation limit will be $76,800 for dismissalsoccurring on or after 1 July 2020. More...

FWC: 18 modern awards extensively variedThe Fair Work Commission is extensively varying existingawards as a result of the 4 yearly review of modern awards. Themodern awards will be varied in 3 tranches during 2020. The variedawards were published in advance and commenced operation, 18 June2020 (18 June 2020). More...

FWC: Jobkeeper disputes benchbook updatedThe benchbook has been prepared by the Commission toassist parties who are lodging or responding to jobkeeper disputeapplications under the Fair Work Act 2009 (Cth). The updated Jobkeeper disputes benchbook is now available (15 June 2020).More...

FWC: General protections benchbookupdatedThe updated version reflects recent changes to the PrivacyAct 1988 to include workplace rights that are intended to protectemployees and others from disadvantage or other adverseconsequences if they decide not to download or use the COVIDSafeapp. View the online version here General protections benchbook (01 June 2020). More...

Australian Building and Construction Commissioner vCoreStaff WA Pty Ltd [2020] FCA 893INDUSTRIAL LAW - adverse action - discrimination forreason of age - where recruitment company refused application foremployment because person applying was 70 years old - whereposition was for grader operator on assignment in the Pilbararegion of Western Australia - whether client or recruitment companywas prospective employer - where client expressed concern aboutperson's age - where independent assessment of age undertakenby decision-maker - whether age was a substantial and operativefactor 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 1659INDUSTRIAL LAW Penalties contraventions of the Fair Work Act 2009 established whether the Court should impose pecuniary penalties against theRespondent whether the breaches arose from a single courseof conduct double jeopardy provisions considered analysis of sections 556 and 557 of the Fair Work Act 2009 the need for deterrence imposition of pecuniary penaltiesto be paid within 30 days.

Vassallo v Easitag Pty Ltd [2020]FCA 875INDUSTRIAL LAW classification of employee forthe purposes of the Electrical, Electronic and CommunicationsContracting Award 2010 and the National Electrical, Electronic andCommunications Contracting Industry Award 1998 matterpreviously arbitrated in the Fair Work Commission whetherdecisions of the Fair Work Commission and Full Bench of the FairWork Commission extinguished justiciable controversy betweenparties as to classification of the applicant employee cause of action estoppel established issue ofemployee's classification not open to be re-agitated inproceedings before the Federal Court of AustraliaFair Work Act 2009 (Cth) ss 570, 739

Bell v Ouyen Hotel Pty Ltd [2020]FCCA 1505INDUSTRIAL LAW Adverse action claim whether applicant resigned or accepted employer's repudiationof the contract whether applicant entitled to alleged awardunderpayments whether employer injured the applicant in heremployment because of exercise of workplace right consequences of non-provision of payslips applicant'sclaims largely established matter to be heard as toconsequential 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 PtyLtd [2020] FCA 848PRACTICE AND PROCEDURE application for partialdefault judgment under r 5.23 of the Federal Court Rules 2011 (Cth)against respondents failure of respondents to defendproceeding failure of respondents to attend case managementhearing failure of respondents to comply with Court orders whether Court has jurisdiction to grant relief whether applicant is entitled to reliefINDUSTRIAL LAW application for declaratory relief andcompensation orders in relation to contraventions of the Fair WorkAct 2009 (Cth) failure to pay minimum hourly rates failure to pay employees in full failure to make and keepemployee records failure to provide pay slips whether contraventions are serious contraventions as they were partof a systematic pattern of conduct whether first respondentexpressly, tacitly or impliedly authorised contraventions whether second respondent knew that first respondent'scontraventions were serious contraventionsHeld: application for partial default judgment grantedFair 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 901INDUSTRIAL LAW Fair Work assessment ofpenalties 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 agreedbetween the parties, Priority Matters Pty Ltd pay a pecuniarypenalty of $51,000 to the Commonwealth pursuant to s.546 of theFair Work Act 2009 (Cth) (Fair Work Act) for thecontraventions set out in the declarations dated 22 February2019.(2) By 31 December 2020, or such other date as may be agreedbetween the parties, Kia Silverbrook pay a pecuniary penalty of$10,200 to the Commonwealth pursuant to s.546 of the Fair Work Actfor the contraventions set out in the declarations dated 22February 2019.

Joseph v Parnell Corporate Services PtyLtd (No 2) [2020] FCA 838INDUSTRIAL LAW termination of employmentcontract not unlawful misconduct unpaid annualleave and long service leave entitlementsCONTRACT damages for settlement of proceedings institutedoverseasPRACTICE AND PROCEDURE costsJudgment for the Applicant/Cross-Respondent against the ThirdRespondent/Third Cross-Claimant in the amount of US$141,559.90inclusive of interest to the date of judgment.

Agapitos v Colliers International(WA) Pty Ltd [2020] FCCA 1536INDUSTRIAL LAW Practice and Procedure claims for long service leave and commissions arising fromemployment claim arises under the Fair Work Act 2009 byreason of reference to the National Employment Standards application falls within the federal jurisdiction whether aclaim that does not properly plead a federal matter can be amendedto raise a federal matter application is a civil matterarising under section 566 of the Act justiciablecontroversy encompassing potential Award breach claims application is not a bare plea claim is not colourable andmade for the improper purpose of fabricating jurisdiction claim is not trivial aspect of the controversy norequirement to issue notices to Attorneys General of the States orTerritories pursuant to s 78B of Judiciary Act 1903.

Rhodes v Firepower Pump Systems Pty Ltd trading asTerritory Fire Service & Training [2020]FCCA 1649INDUSTRIAL LAW Fair Work small claim which Award applies to an applicant who worked as a servicetechnician with respect to building fire systems Plumbingand Fire Sprinklers Award 2010 Electrical, Electronic andCommunications Contracting Award 2010 employee covered byPlumbing and Fire Sprinklers Award 2010.INDUSTRIAL LAW Fair Work proper interpretation of'redundancy' in clause 18.2 of Plumbing and Fire SprinklersAward 2010 where 'redundancy' given a broaddefinition in Award as being 'where an employee ceases to beemployed by an employer' 'redundancy' asdefined 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 satisfyredundancy or severance payment obligations under Award.(1) The Respondent pay a total of $12,537.29 to the Applicant

Association of Professional Engineers, Scientists andManagers Australia v Bulga Underground Operations PtyLtd (No 2) [2020] FCA812INDUSTRIAL LAW civil penalty whereemployer breached s 323 of the Fair Work Act 2009 (Cth) whether penalty should be imposedCoal 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),556Pursuant to s 546(1) of the Fair Work Act 2009 (Cth), therespondent pay a pecuniary penalty of $10,000.00.

Kiyama v Mtn Top Pty Ltd & Ors[2020] FCCA 1205INDUSTRIAL LAW Application for summaryjudgment accessorial liability whethercontravention of Fair Work Act 2009 (Cth) failure to payentitlements absence of clear pleading directionsfor 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 1484INDUSTRIAL LAW Contravention of Fair Work Act2009 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 and570.(1) The first respondent contravened s.405 of the Fair Work Act2009 (the Act) in failing to comply with the orderof the Fair Work Commission dated 11 October 2017.3) The first respondent pay to the applicant a penalty of $20,000pursuant to s.546(1) of the Act for its contraventions set out inparagraph 1 above.

Australian Building and Construction Commissioner vConstruction, Forestry, Maritime, Mining and Energy Union (TheCollege Crescent Case) [2020] FCA757INDUSTRIAL LAW pecuniary penalties agreedcontraventions adverse action application of"no ticket, no start" philosophy coercion ofsubcontractor to pay "union rates" analysis ofthe nature, gravity, character and seriousness of thecontraventions whether history of contravening conductshould inform the court's assessment of how objectively seriousthe agreed contraventions were application of "civildouble jeopardy", "course of conduct" and"totality" principles personal payment orders appropriateness of declaratory reliefBuilding and Construction Industry (ImprovingProductivity) Act 2016 (Cth) ss 5 and 15Crimes Act 1914 (Cth), s 4AACrimes Legislation Amendment (Penalty Unit) Act 2015 (Cth), item 2of sch 1Fair Work Act 2009 (Cth) pts 2-4, 3-1; ss 12, 336, 342, 346, 347,348, 363, 539, 545, 546, 556 and 793Fair Work (Registered Organisations) Act 2009 (Cth) s 12The 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 1442INDUSTRIAL LAW Application for breaches ofcivil remedy provisions of the Fair Work Act 2009 employerfailed to pay wages and provide appropriate wage slips FairWork Ombudsman issued notice to produce records of wage payments respondents produced material that is alleged to bemisleading and deceptive respondents failed to take anysteps 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 766INDUSTRIAL LAW where Applicant employed as cook byFirst Respondent where Applicant claims unpaid wages,annual leave, taxation and superannuation under Fair Work Act 2009(Cth)(the Act) whether the RestaurantIndustry Award 2010 applies to First Respondent whetherFirst Respondent is employer under s 47 of the Act whetherFirst Respondent contravened the ActSUPERANNUATION whether employee can sue employer whereemployer fails to make superannuation contributions to complyingfund nature of compulsory superannuation laws as tax inconstitutional senseBANKRUPTCY where First Respondent has filed for bankruptcyprior to Court reserving judgment whether leave granted toApplicant 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 objectsto leave being grantedPRACTICE AND PROCEDURE where Applicant assisted byunadmitted acquaintance who appears to have been holding himselfout as lawyer whether judgment reasons should be referredto Law Society of New South WalesConstitution ss 51(ii), 51(xx), 51(xxxi), 51(xxxvii), 55, 122Bankruptcy 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, 545Leave be granted to the Applicant to proceed against the BankruptEstate of the First Respondent.Judgment for the Applicant against the First Respondent for$17,583.26.

Commonwealth

Bills

Paid Parental Leave Amendment (Flexibility Measures) Bill2020Finally passed both Houses 11 June 2020 Assent Act no:53 Year: 2020 16 June 2020Amends the: Paid Parental Leave Act 2010 to implement changes tothe paid parental leave scheme to enable eligible claimants toclaim up to 30 days of parental leave pay (PLP)within 24 months of the birth or adoption of a child, in additionto 12 weeks of PLP within 12 months of the child's birth oradoption; and A New Tax System (Family Assistance)Act 1999 and A New Tax System (Family Assistance)(Administration) Act 1999 to make consequential amendments.

PaidParental Leave Amendment (Flexibility Measures) Act2020 Act No. 53 of 2020 17 June 2020

Fair Work Amendment (One in, All in) Bill2020Registered 15 June 2020 Introduced HR 15 June 2020This bill extends the FWC's jurisdiction to deal with disputesabout whether an employee is eligible for the JobKeeper scheme. TheFWC cannot make an order on or after the end date of the Jobkeeperscheme which is 28 September 2020

Regulations

PaidParental Leave Amendment (Coronavirus Economic Response) Rules2020This instrument amends the Paid Parental Leave Rules2010 to assist people who have been affected by the economicimpacts of the Coronavirus (COVID-19) pandemic tobe eligible for parental leave pay or dad and partner pay (17 June2020).

FairWork Amendment (Variation of Enterprise Agreements No. 2)Regulations 2020These regulations amend the Fair Work Regulations 2009 torepeal amendments made by the Fair Work Amendment (Variation ofEnterprise Agreements) Regulations 2020, which modified the periodthat employees must have access to a copy of a proposed variationof an enterprise agreement, and before which employees must benotified of the details of the vote on the variation (the'access period'), from seven days to one day. Thismeasure was intended to be a time-limited change to enableemployers and their employees to quickly respond to issues that mayarise in response to COVID-19 (12 June 2020).

AgedCare (Leave from Residential Care Services) (Situation ofEmergencyHuman Coronavirus with Pandemic Potential)Determination 2020This instrument declares the current COVID-19 pandemicas a situation of emergency for the purposes of subsection 42-2A(1)of the Aged Care Act 1997. Under this determination, emergencyleave will be available to permanent aged care residents acrossAustralia from 1 April 2020 to 30 September 2020 (2 June 2020).

Queensland

Bills

Community Services Industry (Portable Long Service Leave)Bill 2019Stage reached: Passed with amendment on 17/06/2020 Assent Date: 22/06/2020 Act No: 19 of 2020Commences: see Act fordetails

Subordinate legislation reminder This regulation commences on 1 July 2020

Building and Construction Industry (Portable LongService Leave) (Levy Changes) Amendment Regulation 2020 (Qld)This Regulation is made under the Building andConstruction Industry (Portable Long ServiceLeave) Act 1991. The policy objectives is to remove thetiered levy structure which currently provides discounted levyrates to very large projects and replace it with a single levy ratefor leviable matters, and to increase the portable long serviceleave levy from 0.25 per cent to 0.35 per cent.

Building and Construction Industry (Portable Long Service Leave)(Levy Changes) Amendment Regulation 2020 (Qld)

Workers' Compensation and Rehabilitation (QOTE)Notice 2020 (Qld)12 June 2020 - This Notice is made under the Workers'Compensation and Rehabilitation Act 2003 (theAct). Compensation entitlements of injured workers anddependants of deceased workers under the Act are subject toindexation in accordance with increases in Queensland Ordinary TimeEarnings (QOTE) to ensure the relative value ofthose amounts over time. Under section 10A of the Act, theWorkers' Compensation Regulator must, before the start of afinancial year, notify QOTE for the financial year and thepercentage difference in QOTE for the financial year compared toQOTE 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 orchange in law and is not intended to be relied upon as a substitutefor legal or other advice that may be relevant to the reader'sspecific circumstances. If you have found this publication ofinterest and would like to know more or wish to obtain legal advicerelevant to your circumstances please contact one of the namedindividuals listed.

Follow this link:

Employment Law and Workplace Relations Monthly Update - In the media, in practice and courts, cases and legislation - Employment and HR - Australia -...