In the media
Indemnity scheme green lights workplace jabs
The Federal Government has delivered on an indemnity
scheme to protect employers who may face costly claims when they
facilitate jabs in the workplace. The commitment reduces the risks
and uncertainties businesses faced for implementing voluntary
vaccination drives (28 August 2021). More...
Fair Work Ombudsman upgrades jab guides
The Fair Work Ombudsman has updated its guidance on
workplace vaccination against COVID-19, urging employers across
Australia to assist their staff to take advantage of vaccinations
wherever possible (16 August 2021). More...
Geelong utility business faces court
The Fair Work Ombudsman has commenced legal action in the
Federal Circuit Court against the operator of a business in
Geelong, Victoria, that specialises in locating underground cables
(27 August 2021). More...
Brisbane café company and director
penalised
The Fair Work Ombudsman has secured court penalties of
$170,000 against the operator of a Brisbane café and its
director for underpayment of staff and partially paying them in
food and drink (16 August 2021). More...
ABCC adds Walter Molina to the no permit list
The Fair Work Commission has refused to renew CFMMEU
organiser, Walter Molina's federal entry permit. Mr Molina is a
former WA division president of the CFMMEU (13 August 2021).
More...
Record penalties imposed on CFMMEU and officials for
Adelaide Airport construction breaches
The Federal Court has penalised the CFMMEU and six
officials $428,250 for making misrepresentations about the
requirement to show their entry permits, refusing to follow
directions, and acting in an improper manner during the $165
million redevelopment of Terminal 1 at Adelaide Airport in 2019 (13
August 2021). More...
Brisbane labour hire company ADADN Pty Ltd penalised for
failing to produce documents
The Federal Circuit Court has penalised Brisbane labour
hire company ADADN Pty Ltd $33,300 for failing to provide documents
during separate ABCC investigations into alleged underpayment of
wages and unlawful industrial action (06 August 2021). More...
Hardy Bros non-compliance publication
Hardy Bros Mining & Civil Construction Pty Ltd, which
is now in liquidation failed to pay its subcontractor, Coopers
Earthmoving & Haulage Pty Ltd $337,070.29 on time or at
all on a Commonwealth-funded project, the Ellerton Drive Extension
project in Queanbeyan, NSW (06 August 2021). More...
ABCC secures $88k in underpayments for visa holder
The Federal Circuit Court has awarded a New South Wales
worker $88,949 in underpayments following ABCC legal action against
his employer - Open Tiling Services Pty Ltd and its director Jae
Jung Kim (05 August 2021). More...
Parliamentary work review calls for change
A review into alleged serious incidents committed in the
parliamentary workplace has been released. In a statement, the
PM&C said the Review of the parliamentary workplace: Responding
to serious incidents was requested by Prime Minister, Scott
Morrison and the Government had accepted the recommendations in
full. The review can be accessed here (29 July 2021). More...
Published reports articles, speeches
Business leaders tackling modern slavery
Alarmingly, slavery today generates a tremendous profit,
as company supply chains across the globe continue to enable myriad
forms of modern slavery that can range from controlling and
exploiting workers in various ways to poor wages; behaviours that
deny individuals of their right to personal or financial gain.
Click here to read more.
Department of Jobs and Small Business: Monthly Leading
Indicator of Employment 2021
The Monthly Leading Indicator of Employment was flat in
August 2021, after thirteen prior consecutive monthly increases.
Read more here.
ABCC Industry Update - 10 August 2021 edition
In this edition of Industry Update we publish the
non-compliance of Hardy Bros, review the Queensland BPPs,
litigation news and more. Read the August 2021 edition here.
In practice and courts
FWO guidance COVID-19 vaccinations: Workplace rights and
obligations
Updated 30 August 2021 - the office of the Fair Work
Ombudsman encouraged employers and employees to work together to
find vaccination solutions that suited their individual needs and
workplaces. Click here to read more.
FWO: Temporary workplace flexibility in Restaurant
Award
From 11 August 2021, there are new temporary flexibility
provisions in the Restaurant Award. Click here for more information.
FWO: Annual Wage Review 2021
Updated 17 August 2021 - our pay calculator and pay guides now have updated rates for all
the awards that increase from 1 July 2021. See the
when does the increase start?
FWC: Modern award extensively varied
The FWC is extensively varying existing awards as a result
of the four yearly review of modern awards. In a decision published
on 27 April 2020 ([2020] FWCFB 2124), the awards in tranche
three were divided into smaller groups. The technical and drafting
matters for the Nurses Award 2010 have been completed and will
commence operation on 9 September 2021. To access the new
version of the award, go to the Modern awards list.
Cases
WorkPac Pty Ltd v
Rossato [2021] HCA
23
INDUSTRIAL LAW (Cth) - contract of employment - nature of casual
employment - where first respondent employed by appellant
labour-hire company under series of six employment contracts or
"assignments" - where first respondent treated as casual
employee - where first respondent not paid entitlements owed by
employers to non-casual employees - where first respondent claimed
to have been other than a casual employee - where first
respondent's work pattern followed established shift structure
fixed long in advance by roster - where employment contract
provided that employment was on "assignment-by-assignment
basis" - where employment contract provided that appellant
under no obligation to offer first respondent further assignments -
whether there existed firm advance commitment as to duration of
first respondent's employment or days (or hours) first
respondent will work - whether first respondent employed as casual
employee.
Australian Building and Construction
Commissioner v Construction, Forestry, Maritime, Mining and Energy
Union (The Adelaide Airport Case) [2021]
FCA 951
INDUSTRIAL LAW - admitted contraventions of sections 345, 497, 500
and 503 of the Fair Work Act 2009 (Cth) - determination of
penalties - relevant considerations in determining appropriate
penalties - consideration of relevance of a reckless state of mind
- consideration of relevance of pursuit of a legitimate purpose -
whether contraventions occurred in a single course of
conduct.
Crimes Act 1914 (Cth) section 4AA; Fair Work Act 2009 (Cth)
sections 12, 341, 345, 363, 480, 483A, 483D, 487, 490, 492,494,
495, 497, 499, 500, 501, 502, 503, 512, 513, 518, 546, 550, 556,
793.
Fair Work (Registered Organisations) Act 2009 (Cth) section 27.
Australian Building and Construction
Commissioner v Construction, Forestry, Maritime, Mining and Energy
Union (Kiama Aged Care Centre
Case) [2021] FCA 920
INDUSTRIAL LAW - where union officials who held entry permits
entered a building site to inquire into suspected contraventions of
work health and safety laws, whether officials contravened section
497 of the Fair Work Act 2009 (Cth) (FW Act) by
failing to produce their entry permits for inspection when
requested to do so - where concrete pour scheduled for completion,
whether actions of union officials interfered with the concrete
pour and the union officials intentionally hindered or obstructed
certain persons or otherwise acted in an improper manner contrary
to section 500 of the FW Act - whether the conduct of one union
official also contravened section 503 of the FW Act - where the
union officials raised concerns about the safety of the concrete
pour, and allegedly insisted it stop and stood on the internal
roadway thereby preventing concrete trucks from entering, whether
they organised or engaged in an unlawful picket under section 47 of
the Building and Construction Industry (Improving Productivity) Act
2016 (Cth) (BCIIP Act) - whether raising concerns
about safety matters constitutes advancing claims against the
principal contractor in respect of its employment of employees or
engagement of contractors within the meaning of section 47(2)(b)(i)
of the BCIIP Act - whether union liable for the conduct of its
officials.
Acts Interpretation Act 1901 (Cth) sections 2C, 15AA.
Fair Work Act 2009 (Cth) sections 12, 478, 494, 497, 500, 503, 512,
539, 550, 793.
Fair Work (Registered Organisations) Act 2009 (Cth) sections 26,
27.
Fair Work Regulations 2009 (Cth) reg 3.25.
Fair Work Ombudsman v Shri Krishna
Guru Pty Ltd [2021] FCCA
1808
INDUSTRIAL LAW - Fair Work Act 2009 (Cth) - court to consider
appropriate pecuniary penalties to impose on respondents -
respondents admitted to liability for range of contraventions of
Fair Work Act 2009 (Cth) and Fast Food Industry Award 2010 (Cth) -
non-compliance of minimum conditions of awards - contravention of
minimum entitlements of employees - failure to give and keep proper
employment records - whether contraventions should be treated as a
single contravention.
Effect of COVID-19 pandemic assessed when court considers size and
financial resources of the business - consideration of effect of
lockdown on individual business - whether an employer is entitled
to any discount on penalty as a result of being affected by
COVID-19 lockdown - whether evidence shows that any lockdowns have
had an impact on size and resources such that a discount is
warranted - evidence to be placed before the court when employer
seeking to make submission as to penalty discount - evidence of
pre-and post-pandemic profit - evidence of impact on profitability
of business - evidence of any reduction in size of business -
evidence of receipt of government assistance.
Respondents receive significant reduction in penalties having
regard to size and financial resources of the business -
application of totality principle requires 50% reduction on total
penalties payable - liability admitted - affected employees
compensated - penalties be made payable to the Commonwealth of
Australia.
Fair Work Act 2009 (Cth), sections 44(1), 45, 99, 116, 535(1),
536(1), 536(2), 546(1), 557(1).
Fast Food Industry Award 2010 (Cth), clause 12.2, 13.2, 13.4, 17,
18, 25.5(a)(ii), 25.5(b)(ii), 25.5(c), 26.1(a), 26.1(b), 28.3,
30.3, 30.4.
TechnologyOne Limited v
Roohizadegan [2021] FCAFC
137
INDUSTRIAL LAW - adverse action - where primary judge found that
respondent was dismissed in contravention of section 340(1) of the
Fair Work Act 2009 (Cth) - appeal against order to that effect on
the grounds that the judge failed to provide adequate reasons for
his conclusion and did not answer the question whether the
appellants had established that the adverse action was not taken
for a reason proscribed by the Fair Work Act 2009 (Cth), or for
reasons which included such a reason, by reference to all the
evidence - appeal allowed - cross-appeal and notice of contention
dismissed, new trial of adverse action claim ordered.
CONTRACT - where primary judge found that respondent was entitled
to be paid an incentive payment pursuant to the respondent's
contract of employment - whether on its proper construction
respondent so entitled - appeal allowed, cross-appeal dismissed -
new trial of claim for breach of contract of employment and other
claims for damages ordered.
Fair Work Act 2009 (Cth) Pt 3-1, sections 340(1), 340(1)(a)(ii),
340(1)(c), 341, 341(1)(c)(ii), 342(1), 360, 361, 361(1).
NSW Trains v Australian Rail, Tram and
Bus Industry Union [2021] FCA
883
INDUSTRIAL LAW - enterprise agreement - continued operation
after nominal expiry date - whether clause with operation
"during the life of the agreement" refers to the nominal
expiry date - or whether that clause continues to operate after
nominal expiry.
INDUSTRIAL LAW - power of employer to give instructions - the
making of extra claims.
PRACTICE AND PROCEDURE - attempt to re-litigate dispute resolved by
Fair Work Commission - whether abuse of process.
PRACTICE AND PROCEDURE - declaratory relief - resolution of
hypothetical questions - declaratory relief hypothetical both by
reason of uncertainty as to regulatory framework and factual
uncertainty - whether utility - form of declarations sought -
relief refused.
Constitution sections 51, 109, 122; Conciliation and Arbitration
Act 1904 (Cth) section 4; Fair Work Act 2009 (Cth) Pt 2-4, sections
19, 26, 27, 29, 52, 54, 223, 224, 225, 226, 227, 253.
Wellington v Offermans Partners (No
2) [2021] FCCA 1846
INDUSTRIAL LAW - Commonwealth - compliance and enforcement - civil
remedies - pecuniary penalty orders - amount of penalty -
contravention of section 323(1) of the Fair Work Act 2009
(Cth).
INDUSTRIAL LAW - Commonwealth - compliance and enforcement -
civil remedies - Fair Work Act 2009 (Cth) - costs.
Bankruptcy Act 1966 (Cth); Fair Work Act 2009 (Cth), sections 323,
323(1), 325, 570, 570(2)(b).
Pursuant to section 546(1) of the Fair Work Act 2009 (Cth) the
respondent pay a pecuniary penalty of $8,500.00 to the applicant
within 28 days of this order.
Fair Work Ombudsman v 63 Racecourse Rd
Pty Ltd [2021] FCCA
1875
INDUSTRIAL LAW - Commonwealth - compliance and enforcement -
civil remedies - pecuniary penalty orders - assessing penalty -
admitted contraventions - agreed penalty.
INDUSTRIAL LAW - Commonwealth - compliance and enforcement -
civil remedies - pecuniary penalty orders - amount of penalty -
particular cases.
Crimes Act 1914 (Cth), section 4AA; Fair Work Act 2009 (Cth),
sections 45, 144, 144(2), 323(1), 323(1)(b), 323(2), 539(2), 546,
546(2), 550(1)557(1); Fair Work Regulations 2009 (Cth), reg
4.01(A).
Restaurant Industry Award 2010, clause 7.1.
Fair Work Ombudsman v Chevron Island
Tavern Pty Ltd [2021] FCCA
1964
INDUSTRIAL LAW - Commonwealth - compliance and enforcement - civil
remedies - contravention - pecuniary penalty orders - amount of
penalty.
Crimes Act 1914 (Cth), section 4AA; Fair Work Act 2009 (Cth),
sections 539(2), 546(2), 716, 716(2), 716(4A), 716(4B), 716(5);
Fair Work Regulations 2009 (Cth), reg.4.01(A); Hospitality Award
2010.
Paying the outstanding amount of $13,417.37 it was required to pay
to the employees specified in the notice and producing evidence of
payment to each of the employees to the applicant.
Goulding v Simonds Homes Victoria Pty
Ltd (No 3) [2021] FCCA
1790
INDUSTRIAL LAW - Fair Work Act 2009 (Cth) - costs - respondent
seeks costs on an indemnity basis, to be taxed in default of
agreement - in the alternative the respondent seeks costs on a
party/party basis or to be fixed by the court - multiple Calderbank
offers made to the applicant - Calderbank offers refused -
repudiation of Calderbank offers was unreasonable - costs awarded
on party/party basis.
Fair Work Act 2009 (Cth) section 570.
Australian Building and Construction
Commissioner v ADADN Pty Ltd [2021] FCCA
1820
INDUSTRIAL LAW - failure by respondent to comply with notices to
produce records - failure by respondent to co-operate with
respondent in any respect - level of penalty to act as a general
deterrence in respect of non-compliance with statutory notices -
orders accordingly.
Building and Construction Industry (Improving Productivity) Act
2016 (Cth), sections 77(3), 81(1)(a), 81(5).
Labour Hire Licensing Act 2017 (Qld), section 40(1). Fair Work Act
2009 (Cth), sections 387, 392, 405.
Federal Circuit Court Rules 2001 (Cth), r 21.11.
Legislation
Commonwealth
Bills
Paid Parental Leave Amendment (COVID-19
Work Test) Bill 2021
25/08/2021 - this Bill will enable people to access parental leave
pay and dad and partner pay who do not meet the current work test
provisions because their employment has been affected by the
COVID-19 pandemic, but who have been paid Commonwealth payments in
recognition of this effect.
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.
