In the media

Bunnings forked out over $6 million to 40,000 staff who were underpaid superannuation Bunnings workers were not paid the correct superannuation thanks to what the company describes as a payroll error. The average underpayment per team member was $95.33 (29 November 2019). More...

FWO recovers entitlements for school cleaners Following an investigation by the Fair Work Ombudsman, the Victorian Department of Education and Training (DET) has made significant changes to school cleaning contracts to protect workers (29 November 2019). More...

Courier company failed to provide paid meal breaks A failure to provide paid meal breaks has resulted in national parcel delivery company Couriers Please Pty Ltd underpaying staff $382,065 over a period of eight years (29 November 2019). More...

Deliveroo has released data it says proves its riders value flexibility, as part of the company's push to change Australian workplace law Deliveroo has released research it claims proves its riders value both flexibility and security in their work, as part of the company’s push to reform regulation governing the gig economy. The union representing Deliveroo riders, however, maintains the company can easily offer benefits without making changes to Australia’s workplace laws (28 November 2019). More...

Printing business penalised The operators of a Sydney printing finishing business have back-paid migrant workers $229,564 and been penalised a combined $18,144 following Fair Work Ombudsman court action (22 November 2019). More...

Sydney PappaRich franchisees penalised The Fair Work Ombudsman has secured $307,802 in penalties in the Federal Circuit Court in response to 154 workers across three PappaRich restaurants in Sydney being underpaid $74,000 (21 November 2019). More...

Plumber penalised over $150,000 The Fair Work Ombudsman has secured penalties of $151,200 against a Victorian plumber and his company for underpaying a young worker following previous court action involving “startlingly similar” conduct (19 November 2019). More...

ABCC alleges CFMMEU officials threatened and intimidated NSW crane workers and company The ABCC has commenced Federal Court action against the CFMMEU and seven officials alleging they targeted Wollongong crane company WGC Cranes and its workers as part of a campaign to coerce the company to sign up to a new CFMMEU enterprise agreement. (19 November 2019). More...

Former Crust pizza franchisee penalised The Fair Work Ombudsman has secured a total of $75,400 in penalties in court against a former Melbourne Crust Gourmet Pizza Bar franchise and one of its directors, after they underpaid seven employees and provided false records to the FWO (19 November 2019) Former Crust pizza franchisee. More...

ABC to begin repaying nearly 2,000 underpaid staff next month The ABC says 1,886 current and former employees who were underpaid over six years will begin receiving payments in December (18 November 2019). More...

Productivity Commission to review national skills & workforce agreement The Morrison Government today has requested the Productivity Commission to review the National Agreement for Skills and Workforce Development (NASWD). The Morrison Government is committed to strengthening the VET sector so that all Australians have the skills they need to succeed in a changing workplace, and businesses have a pipeline of qualified workers to grow and prosper (15 November 2019). More...

Federal Court penalises NUW The Fair Work Ombudsman has secured a $72,900 penalty and $101,539.50 compensation order in the Federal Court against the National Union of Workers (NUW) over unlawful industrial action in Melbourne (15 November 2019). More...

Recidivist Melbourne employer penalised $398,000 The Fair Work Ombudsman has secured a total of $398,520 in penalties against a Melbourne CBD travel agency and one of its directors for underpaying two migrant workers (15 November 2019). More...

Court action over alleged underpayments in Cairns The Fair Work Ombudsman has commenced legal action against the operators of two food outlets in northern Queensland, alleging they underpaid 18 workers, including teenagers, a total of $13,913 (14 November 2019). More... FWO audits Top Juice outlets The Fair Work Ombudsman today carried out surprise audits of 17 Top Juice outlets in Victoria, New South Wales, Queensland and the ACT to check compliance with Australia’s workplace laws (12 November 2019). More...

Protecting Workers In Our Changing Jobs Market A new report has found an increasing number of independent contractors are not adequately covered by workers compensation and often miss out on leave or superannuation entitlements (08 November 2019). More...

Underpaid workers remain out of pocket months after employers apologise A growing list of companies admit to underpaying workers and subsequently apologise publicly, but it can be months or years before employees see any of the cash they are owed (07 November 2019). More...

Foreign workers underpaid by pizza franchise, told to deliver further distances than Australians The operators of a fast-food pizza shop in Hobart are fined $104,000 after a court finds they "deliberately" adopted a different payment system for foreign employees that saw the workers earn significantly less than their Australian counterparts (04 November 2019). More...

Published reports articles, speeches

Australia’s gender equality scorecard - November 2018 Workplace Gender Equality Agency: 13 November 2019 The results of the WGEA's latest dataset emphasise the importance of measuring workplace gender equality. The data shows that change is happening in Australian workplaces. More...

Department of Jobs and Small Business: Monthly Leading Indicator of Employment November 2019 The Monthly Leading Indicator of Employment (the Indicator) has fallen for the sixteenth consecutive month in November 2019, after eleven consecutive monthly rises. The Indicator’s fall this month is attributed to declines in three of its five components. More...

Australian Bureau of Statistics 21/11/2019 Labour Force, Australia, Detailed - Electronic Delivery, Oct 2019 (cat no. 6291.0.55.001) 14/11/2019 Labour Force, Australia, Oct 2019 (cat no. 6202.0) 12/11/2019 Australian Labour Account: Concepts, Sources and Methods, Oct 2019 (cat no. 6150.0) 07/11/2019 Employment and Earnings, Public Sector, Australia, 2018-19 (cat no. 6248.0.55.002)

In practice and courts

APH Senate Inquiry Status: Accepting Submissions Date Referred: 13 November 2019 Submissions Close: 14 February 2020 (25 June 2020). More...

Fair Work Ombudsman: Entitlements Entitlements over the Christmas and New Year holidays 2019-2020 (November 2019). More...

Improving transparency and business relationships in the franchising sector Improving transparency and business relationships in franchising is well underway, with the Morrison Government’s Franchising Taskforce commencing the next stage of consultation on the future regulation of the sector. The Franchising Taskforce is accepting submissions on the RIS until 6 December 2019 (11 November 2019). More...

FWC: 31 modern awards extensively varied Starting in 2020, the Fair Work Commission will extensively vary existing awards as a result of the 4 yearly review of modern awards. The technical and drafting matters for the first group of 31 awards has been completed. The varied awards have been issued and will commence operation on 4 February 2020 (25 November 2019). More...

Attorney General: Consultation released A discussion paper, examining the issue of Project Life Greenfields Agreements. Under the Fair Work Act, enterprise agreements can only apply for a maximum of four years after approval. More...

Victoria: Labour Hire Providers From 30th November 2019, only labour hire providers that have been granted a licence, or have a decision pending on their application, are allowed to operate in Victoria. More...

Cases

Anning v Western Sydney University (No.3) [2019] FCCA 3344 INDUSTRIAL LAW – Fair Work Act 2009 – costs. INDUSTRIAL LAW – Fair Work Act 2009 – costs – whether failure to accept offer made in notice to offer to compromise unreasonable – relevant considerations. COSTS – Respondent’s notice of offer to compromise – application dismissed – whether failure to accept offer was unreasonable – relevant considerations.

Morton v Commonwealth Scientific and Industrial Research Organisation (No 3) [2019] FCA 1943INDUSTRIAL LAW – pecuniary penalty for contravention of s340(1) of Fair Work Act – where respondent contends no penalty should be imposed –determination of appropriate penalty COSTS – where respondent contends proceeding vexatious or without reasonable cause – where adverse credibility findings made in respect of applicant – where applicant refused four offers to settle – refusal to accept offer was unreasonable conduct – costs awarded on party and party basis

Association of Professional Engineers, Scientists and Managers Australia v Bulga Underground Operations Pty Ltd [2019] FCA 1960INDUSTRIAL LAW – application by union and an employee for declarations, compensation and penalties pursuant to the Fair Work Act 2009 (Cth) and Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) in relation to unpaid long service leave – where employee made redundant – where application concerned calculation of untaken long service leave entitlements – whether employer misconstrued the statutory definition of “base rate of pay” to employee’s remuneration under his contract of employment and applicable enterprise agreement – consideration of “base rate of pay” pursuant to s 16(1) of the Fair Work Act 2009 (Cth) – consideration of whether declaratory relief could be sought in relation to all employees covered by the enterprise agreement

Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 1942INDUSTRIAL LAW – pecuniary penalty – course of conduct – double punishment for same conduct – single penalty imposed. Fair Work Act 2009 (Cth) ss 417(1), 546(1), 557(1), 557(3); The respondent pay a pecuniary penalty of $38,000 in respect of its contraventions of s 417(1) of the Fair Work Act 2009 (Cth)

Fair Work Ombudsman v PPR Ryde (NSW) Pty Ltd & Anor; Fair Work Ombudsman v Gateharvest Pty Ltd & Anor; Fair Work Ombudsman v Wong [2019] FCCA 3085INDUSTRIAL LAW – Fair Work – application for penalties – consideration of factors bearing upon penalties. Fair Work Act 2009 (Cth), ss.44, 45, 535, 536, 545, 546, 550, 557; Fair Work Regulations 2009 (Cth)

Fair Work Ombudsman v Desire Food Pty Ltd & Anor [2019] FCCA 2979INDUSTRIAL LAW – Penalty hearing – where non-Australian citizens were underpaid by a franchisee – Crust Pizza – multiple breaches of the Fast Food Industry Award 2010 – breach of the Fair Work Act 2009 (Cth) – provision to the Fair Work Ombudsman of false or misleading information or documents – admitted contraventions – where the contraveners have repaid underpayments. Fair Work Act 2009 (Cth), ss.44, 45, 90(2), 536(2), 536(1), 546, 550, 557, 718A

Fair Work Ombudsman v Pulis Plumbing Pty Ltd & Anor [2019] FCCA 3192 INDUSTRIAL LAW – Penalty hearing – where the employee was hired as an apprentice – where the employer failed to register employee as an apprentice – where employer paid the employee apprenticeship wages – employer provided false or misleading documents to the Fair Work Inspector – repeat contravening conduct – where the Fair Work Ombudsman has previously investigated and litigated against the Respondent on similar factual issues. Fair Work Act 2009 (Cth), ss.44(1), 45, 90(1), 99, 117(2), 117(1), 535(4), 535(1), 550, 557, 718A; Fair Work Regulations 2009 (Cth), reg.3.40

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201INDUSTRIAL LAW – s 556 of the Fair Work Act 2009 (Cth) (“FW Act”) – civil double jeopardy – penalties imposed under ss 499 and 500 – conduct constituting one contravention wholly subsumed within the conduct constituting the other – whether s 556 is only engaged where there is a complete overlap between the conduct (physical acts and omissions) which constitutes each relevant contravention – whether “conduct” in s 556 should be understood as not merely a reference to physical acts and omissions but also to elements of character or circumstance relevant to a given contravention – common law principles of double jeopardy discussed – whether, as a matter of fact, the penalties imposed in respect of the s 500 contravention were not in any way referable to the conduct constituting the contraventions of s 499 – appeal allowed

Fair Work Ombudsman v Abella Travel Pty Ltd & Anor [2019] FCCA 3262INDUSTRIAL LAW – contraventions – declarations – cash back arrangement to facilitate 457 visa applications – underpayments – penalties. Fair Work Act 2009, ss.44(1), 45, 90(1), 90(2), 99, 116, 293, 325, 535(1), 536(1), 546(1), 546(3)(a), 550, 557(1); Fair Work Regulations 2009, reg.3.44(1), 3.44(6). (5) The first respondent pay penalties of $332,100. (6) The second respondent pay penalties of $66,420.

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union & Ors [2019] FCCA 3261INDUSTRIAL LAW – Civil remedy proceedings – non-indemnification order. PRACTICE AND PROCEDURE – Change to relief sought – whether amendment to statement of claim necessary. Fair Work Act 2009, s.546

Australian Building and Construction Commissioner v Hynes & Anor [2019] FCCA 3145INDUSTRIAL LAW – Commonwealth – Compliance and enforcement – Civil remedies – right of entry – entry permit holder – act in an improper manner – assessment of appropriate penalty. Fair Work Act 2009 (Cth), ss.500, 512, 546, 550(1), 550(2). (2) The second respondent was involved in the first respondent’s contravention of s.500 of the Fair Work Act 2009 (Cth) by being directly or indirectly, knowingly concerned in or a party to the first respondent’s contravention for the purposes of s.550(1) of the Fair Work Act 2009 (Cth). (1) The first respondent pay a pecuniary penalty of $4,400 in respect of his contravention of s.500 of the Fair Work Act 2009 (Cth). (2) The second respondent pay a pecuniary penalty of $34,650 in respect of its contravention of s.500 of the Fair Work Act 2009 (Cth).

Fair Work Ombudsman v Qha Foods Pty Ltd & Ors [2019] FCCA 3120INDUSTRIAL LAW – Pecuniary penalties – contraventions of the Fair Work Act 2009 (Cth) – quantum of penalties – taking adverse action because of national extraction by discriminating and injuring – underpayment of entitlements – failure to make and keep records – altering records – failure to provide pay slips. Crimes Act 1914 (Cth), s.4AA; Evidence Act 1995 (Cth), s.191; Fair Work Act 2009 (Cth), ss.3, 45, 342, 360, 361, 351, 535, 536, 545, 546, 550, 557; Fair Work Regulations 2009, regs.3.32, 3.33, 3.44. (4) The First Respondent pay $80,000 in penalties pursuant to section 546(1) of the FW Act in respect of the contraventions set out in paragraph (1) above. (5) The Second Respondent pay $12,000 in penalties pursuant to section 546(1) of the FW Act in respect of his involvement in the contraventions set out in paragraph (1) above. (6) The Third Respondent pay $12,000 in penalties pursuant to section 546(1) of the FW Act in respect of his involvement in the contraventions set out in paragraph (1) above.

Sheehan v Thiess Pty Ltd [2019] FCA 1762 INDUSTRIAL LAW - representative action - where declarations in the form of answers to common questions sought - interpretation of an industrial agreement - where clause 16(9) of the relevant agreement provided that employees' working hours finished at the inside of the site access gates - where employees were not paid for the journey time to the site access gate - where applicant claimed payment for this journey time - whether the inside of the gate referred to a point immediately inside the gate - whether clause 16(9) operated to define the place and time at which employees finished work - whether clause 16(9) created an entitlement to pay - consideration of factual dispute about the location of the site access gates - judgment for the applicant Fair Work Act 2009 (Cth) ss 54, 177

Legislation

Bills

Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019 Amends the Fair Work (Registered Organisations) Act 2009 to: include certain serious criminal offences as a new category of ‘prescribed offence’ for the purposes of the automatic disqualification regime in relation to registered organisations; establish an offence for a disqualified person to continue to act as an official or in a way that influences the affairs of an organisation; allow the Federal Court to disqualify officials from holding office in certain circumstances or if they are otherwise not a fit and proper person; allow the Federal Court to cancel the registration of an organisation on a range of grounds; expand the grounds on which the Federal Court may order remedial action to deal with governance issues in an organisation; expressly provide that the Federal Court may appoint an administrator to an organisation or part of an organisation as part of a remedial scheme; introduce a public interest test for amalgamations of registered organisations; and make minor and technical amendments. Progress : Senate Negatived in Committee of the Whole 28 November 2019