Latest Employment Law Updates in Australia for 2025
Expertly authored practice-area news, key cases and legislative reforms. Register or log in below to access the full legal updates.
Bill introducing workplace gender equality targets scheme passed
Date: 28 March 2025
Source: Parliament of Australia
Abstract:
On 26 March 2025, the government passed the Workplace Gender Equality Amendment (Setting Gender Equality Targets) Bill 2025 (the Bill) which seeks to further improve gender equality in the workplace by requiring certain employers to set and achieve specific gender equality targets.
The Bill
The primary aim of the Bill is to extend the existing legal framework by amending the Workplace Gender Equality Act 2012 (the Act) to introduce a gender equality targets scheme for certain employers.
The new obligations apply to employers with 500 or more employees, who will be known as designated relevant employers. These employers are required to select and commit to at least three gender equality targets from a menu of gender equality indicators, with at least one being a numeric target, over a three year cycle. The obligations include compliance with reporting requirements and, at the end of the three year cycle, demonstrating achievement, or improvement of the selected targets, against baseline data. The implementation of these obligations is set to commence following the Bill's enactment.
Employers will be considered non-compliant with the Act if, at the end…
Full Court rejects challenge to cooling off orders (CEPU v Sydney Trains)
Date: 27 March 2025
Court: Federal Court of Australia, Full Court
Judge(s): Perram, Rangiah and Shariff JJ
Judgment date: 25 March 2025
Catchwords: Fair Work Commission decision — suspension of protected action — cooling off orders made —no jurisdictional errors identified
In Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Sydney Trains [2025] FCAFC 39, a Full Court of the Federal Court of Australia dismissed an application for writs of certiorari to quash a decision of a Full Bench of the Fair Work Commission.
Background
The Full Bench made cooling off orders in its decision to suspend all protected industrial action by 7 unions in relation to a new agreement on and from 19 February 2025 until 1 July 2025. It acted under s 425 of the Fair Work Act 2009 (Cth) (FW Act).
The Full Bench concluded that the parties had been very close to resolving the whole dispute but that the events flowing from the demand for a $4,500 sign-on bonus had spiralled out of control. It reasoned that all protected industrial action should be suspended so that the parties could get…
Dismissing stop bullying application where employment terminated before application determined (Greenan v Vilensky)
Date: 25 March 2025
Court: Fair Work Commission, Full Bench
Judge(s): Asbury VP, Anderson and Masson DP
Judgment date: 24 March 2025
Catchwords: Appeal from discretionary decision — principles for dismissing application — options to dismissing application — exception rather than rule
Abstract:
In Carole Greenan v David Vilensky, Tim Lethbridge, Bernard Mackin, Croftbridge Pty Ltd T/A Croftbridge, Workplace Consulting Australia Pty Ltd T/A WCA Solutions, BBV Legal Pty Ltd T/A Bowen Buchbinder Vilensky [2025] FWCFB 61, a Full Bench of the Fair Work Commission (FWC) noted the principles for determining when to dismiss a stop bullying application when it has no reasonable prospects of success, where the applicant’s employment is terminated before the application is determined.
Background
The appellant’s stop bullying application alleged that she had been bullied at work by the managing director of her employer and by various persons engaged by it to investigate claims of bullying made against, and by, the appellant.
Prior to the stop bullying application being listed for hearing, the appellant’s employment was terminated on the ground of redundancy.
After confirming that the appellant intended to continue the stop bullying application and would…
Reasons for flexible working arrangement refusal not reasonable business grounds
Date: 25 March 2025
Court: Fair Work Commission
Judge(s): Commissioner Yilmaz
Judgment date: 20 March 2025
Catchwords: Flexible working arrangements — Parental responsibilities — Enterprise agreement clause — Reasonable business grounds
Abstract
Anthony May v Paper Australia Pty Ltd [2025] FWC 799 relates to whether a refusal of a flexible working arrangement (FWA) request under the Fair Work Act 2009 (FW Act) was made on the basis of reasonable business grounds. The Fair Work Commission (FWC) determined that the grounds cited by the employer were not reasonable, and made an order for the company to grant the requested FWA.
Facts:
The employee who was employed by Paper Australia Pty Ltd since 1985, sought a formal FWA to accommodate his parental responsibilities. Previously, an informal arrangement allowed him flexibility on Thursdays, but this was revoked following an audit. The employee's formal request under s 65(1) of the FW Act was rejected by Paper Australia, citing non-compliance with the relevant roster clause under the company’s enterprise agreement as a reasonable business ground. The company proposed an alternative make-up time arrangement in accordance with the enterprise agreement, which the employee found impractical. Unable to resolve the…
Government takes action on non-compete clauses and no-poach agreements
Date: 4 March 2025
Source: The Hon Dr Andrew Leigh MP, Senator the Hon Murray Watt, Minister for Employment and Workplace Relations and The Hon Dr Jim Chalmers MP Treasurer
The Hon Dr Andrew Leigh MP has announced the government’s intention to ban non compete clauses for workers earning less than the high income threshold in the Fair Work Act (currently $175,000). It is intended that the reforms will take effect from 2027, following consultation and passage of legislation.
In a joint statement with Senator the Hon Murray Watt, Minister for Employment and Workplace Relations and Treasurer the Hon Dr Jim Chalmers MP, Dr Leigh noted that more than three million Australian workers are covered by restrictive non-compete clauses, including childcare workers, construction workers, and hairdressers.
Restrictive non-compete clauses have been a focus area of Treasury’s Competition Review, which was established in 2023 (see our Latest Legal Updates here and here).
The government’s most recent announcement comes after Treasury released an issues paper in April 2024 covering emerging concerns relating to:
- non-compete clauses and other restraint of trade agreements between businesses and workers; and
- no-poach and wage-fixing agreements between businesses.
In…
Treasury invites feedback regarding draft legislation on payday superannuation
Date: 19 March 2025
Court: Australian Government – The Treasury
From 1 July 2026, employers will be required to pay employees’ superannuation guarantee at the same time as their salary and wages.
This proposed reform measure is not law yet however the Government seeks to:
- introduce the concept of qualifying earnings (QE), which includes:
- ordinary time earnings (OTE);
- salary sacrifice super contributions; and
- other amounts which are currently included in an employee's salary or wages for super guarantee;
- require employers to make QE to employees within 7 calendar days of payments of QE ie. on “payday”;
- impose a superannuation guarantee charge (SGC) on employer failing to pay contributions in full and on time. The SGC will be updated for the purposes of this new measure.
Employers have the onus to ensure compliance with this measure. Employers will be required to report in Single Touch Payroll (STP) both the OTE and total superannuation liability for an employee and the Australian Taxation Office will have increased visibility of superannuation guarantee contributions through STP data. Employees will also have more speedy visibility as to whether they had been paid superannuation guarantee.
Treasury…
New federal Work Health and Safety (Sexual and Gender-based Harassment) Code of Practice 2025 now in effect
Date: 19 March 2025
Source: Federal Register of Legislation - Work Health and Safety (Sexual and Gender-based Harassment) Code of Practice 2025
On 5 March 2025, the federal Government approved the code of practice on sexual and gender-based harassment (Code of Practice).
The Code of Practice implements one of the recommendations in the Respect@Work report which provides for work health and safety ministers to agree to amend model work health and safety laws to deal with psychological health and develop guidelines and a code of practice on sexual harassment. The Code of Practice gives effect to Safe Work Australia’s model code of practice and provides practical guidance to employers about how to protect workers against workplace sexual harassment.
The Code of Practice should be applied alongside the existing Work Health and Safety (Managing Psychosocial Hazards at Work) Code of Practice 2024.
Full Bench orders Regulated Labour Hire Arrangements for Bengalla Mining (Application by the MEU re Bengalla Mining Company)
Date: 14 March 2025
Court: Full Bench of the Fair Work Commission
Judge(s): Vice President Gibian, Deputy President Wright, Deputy President Roberts and Commissioner P Ryan
Judgment date: 13 March 2025
Catchwords: Labour hire workers – Mining industry – Regulated labour hire arrangement – Increase to pay and conditions
Abstract:
In Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53, the Full Bench of the Fair Work Commission (FWC) granted regulated labour hire arrangement orders for employees supplied by CoreStaff NSW Pty Ltd (CoreStaff) and Skilled Workforce Solutions (NSW) Pty Ltd (Skilled) to Bengalla Mining Company Pty Ltd (Bengalla). The decision underscores the application of the Fair Work Act 2009 (Cth) (FW Act) in ensuring equitable pay rates for labour hire workers, aligning them with those of directly employed counterparts under the Bengalla Enterprise Agreement 2022.
Background
The Mining and Energy Union (MEU) made applications for regulated labour hire arrangement orders (RLHAO) under s 306E of the Fair Work Act 2009 (Cth) (FW Act) pertaining to labour hire workers employed by CoreStaff and Skilled , who perform work…
Appeal from FWC administrative decision to “close” file (Dawson v Centre for Digestive Diseases)
Date: 7 March 2025
Court: Fair Work Commission, Full Bench
Judge(s): Gibian VP, Boyce and Butler DP
Judgment date: 7 March 2025
Catchwords: General protections dismissal dispute —decision to close file — final agreement not reached — appeal against administrative decision
In Marie Vic Dawson v Centre for Digestive Diseases Pty Ltd [2025] FWCFB 50, a Full Bench of the Fair Work Commission (FWC) decided that it could hear an appeal from a decision of Commissioner Riordan to close a file in relation to an application that the FWC deal with a general protections dismissal dispute. The decision was made after the parties had reached an in-principle agreement after discussions during an adjournment in a jurisdictional hearing into whether the appellant had been dismissed. A final agreement was not reached.
Background
During the adjournment of the jurisdictional hearing on 10 October 2024, following a conference with counsel in Commissioner Riordan’s chambers, the parties reached an in-principle agreement. The hearing was then adjourned.
A brief time later, the appellant’s solicitors requested a copy of the transcript of the hearing. After considering submissions from the respondent, the FWC refused…
La Trobe University to pay more than $10.77 million in underpayments
Date: 6 March 2025
Source: La Trobe University signs Enforceable Undertaking
La Trobe University will make more than $10.77 million in payments, including superannuation and interest, to more than 6,700 underpaid staff as part of an Enforceable Undertaking (EU) given to the Fair Work Ombudsman (FWO). (See s 715 of the Fair Work Act 2009 (Cth) — Enforceable undertakings relating to contraventions of civil remedy provisions).
As noted in the FWO’s media release, La Trobe University signs Enforceable Undertaking —
- The University will also make a $220,000 contrition payment to the Commonwealth’s Consolidated Revenue Fund and implement a broad range of measures to ensure future compliance with workplace laws.
- The underpayments (mostly related to marking work) were in relation to work performed between January 2015 and December 2022.
- The University incorrectly applied its Enterprise Agreements, resulting in many casual employees not being paid for all hours worked and being underpaid minimum engagement period entitlements.
- The underpayments were caused by systemic failures in compliance, central oversight and governance processes, with schools adopting differing payroll practices.
For more information, see the FWO’s media release, La Trobe University signs Enforceable Undertaking.
Forced resignation because of employer’s conduct towards employee (Quinn v Harbour City)
Date: 5 March 2025
Court: Fair Work Commission
Judge(s): Saunders DP
Judgment date: 28 February 2025
Catchwords: General protections dismissal dispute — whether applicant was dismissed — employer’s conduct towards employee — employer’s conduct forced resignation
Abstract:
In Alicia Quinn v Harbour City Hospitality Pty Ltd [2025] FWC 613; BC202502351, the Fair Work Commission (FWC) dismissed the respondent’s (Harbour City) jurisdictional objection to an application made under s 365 of the Fair Work Act 2009 (Cth) (FW Act). Harbour City contended that there had been no dismissal as the applicant (Ms Quinn) had resigned. Saunders DP of the FWC held that Ms Quinn was, nonetheless, dismissed withing the meaning of s 386(1)(b) as she was forced to resign because of the conduct of Harbour City towards her and others.
Background
On 21 February 2024, Ms Quinn was employed by the Harbour City as a full-time Singer/Burlesque/Player based at The Emerald Room in Sydney.
On 20 November 2024, Ms Quinn resigned from her employment with Harbour City due to a lack of superannuation payments, continuous late payment of wages to herself and other staff, and the bullying and harassment directed predominately towards…
Draft questions for WFH Surveys
Date: 4 March 2025
Source: Statement — variation on the Commission’s own initiative — Clerks—Private Sector Award 2020 [2025] FWCFB 47
This matter was commenced in September 2024 on the Fair Work Commission’s (FWC) own initiative pursuant to s 157(3)(a) of the Fair Work Act 2009 (Cth) (FW Act) — FWC may vary etc. modern awards if necessary to achieve modern awards objective.
In an initial hearing on 13 September 2024, the parties identified that it would be beneficial if the FWC conducted research to support the matter. In December 2024, the Full Bench concluded that both employer and employee surveys should be conducted, and each should explore a broad snapshot of issues as well as allowing comparison with data previously collected in a 2020 employer working from home survey.
Draft questions for the WFH Surveys have been prepared and appear as Attachment A to the Statement.
Interested parties may file any submissions they wish to make as to the proposed survey questions by 4:00 pm (AEDT) on Monday, 10 March 2025. All submissions should be emailed to awards@fwc.gov.au.
Read the full Statement here.
Open for submissions - Whistleblower Protection Authority Bill 2025
Date: 3 March 2025
Source: Parliament of Australia
On 13 February 2025, the Whistleblower Protection Authority Bill 2025 (No.2)(the Bill) was referred to the Legal and Constitutional Affairs Legislation Committee by the Senate for inquiry and report.
The proposed Bill aims to establish a new, independent statutory body known as the Whistleblower Protection Authority to safeguard individuals who flag misconduct in both the public and private sectors. The authority would have jurisdiction over all federal whistleblower protection laws and would be responsible for providing information, advice, assistance, guidance, and support to current and potential whistleblowers.
As part of the committee’s inquiry, interested parties have been invited to submit their views on the Bill which will remain open until 30 June 2025.
For more information on the proposed Bill, see our previous LLU here.
The Bill and Explanatory Memorandum are available for download on the Parliament of Australia website.
From 26 February 2025, employee-like workers protected from unfair deactivation
Date: 27 February 2025
Source: Fair Work Commission Decision Commencing 26 February 2025, employee-like workers may be found to be unfairly deactivated from a digital labour platform: Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024
The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) (Closing Loopholes No. 2 Act) amended the Fair Work Act 2009 (Cth) (FW Act).
As a consequence, from 26 August 2024, the Fair Work Commission (FWC) has had powers with regard to unfair deactivation of certain independent contractors (‘employee-like workers’) who perform digital platform work in the gig economy: see s 2, table item 22 and Pt 16, Div 3 of the Closing Loopholes No. 2 Act, which inserted Pt 3A-3 of the FW Act.
Deactivation occurs when a digital labour platform operator (see s 15M, FW Act) decides to suspend or terminate an employee-like worker’s access to the digital labour platform, stopping them from using the platform for digital platform work — for the meaning of ‘digital labour platform’, ‘digital platform work’ and ‘employee-like worker’, see ss 15L, 15N and 15P, FW Act.
A person is protected from unfair deactivation if they…
New model terms commence operation from 26 February 2025
Date: 25 February 2025
Source: Fair Work Commission Decision [2025] FWCFB 39
Abstract:
The Full Bench of the Fair Work Commission made determinations on the new model terms for enterprise agreements and copied State instruments on 20 February 2025. These terms commence operation from 26 February 2025.
Background
In accordance with Sch 1 Pt 5 of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth), the Full Bench of the Fair Work Commission is required to determine the model terms for enterprise agreements and copied State instruments by 26 February 2025. See Latest Legal Update: FWC proposed timetable for determining model terms.
Model flexibility term
The new model flexibility term includes the following key changes:
- provision inserted that an individual flexibility arrangement (IFA) is to be genuinely agreed to by the employer and employee without coercion or duress in line with the model flexibility term for modern awards;
- a new clause 2 to make clear that an IFA can only be made with an employee after the employee has commenced employment with the employer;
- a new clause 3 requiring an employer gives the employee a written proposal if…
Employee choice pathway for casuals from 26 February 2025
Date: 20 February 2025
Source: Fair Work Commission Changes to casual employment laws
From 26 February 2025, the Employee Choice Pathway to permanent full-time or part-time employment will be available for most casual employees: see ss 66AAB – 66AAD and s 66K of the Fair Work Act 2009 (Cth)(FW Act); and Sch 1, item 6 and Sch 1, Pt 18 item 102(6A) of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth).
See also Latest Legal Update Casual employment changes from 26 August 2024.
The steps in the Employee Choice Pathway are —
- Employee notification of a choice to become a permanent employee, if the employee has worked at least 6 months for the employer for (12 months for a small business employer), and they believe that they no longer meet the definition of casual employee in s 15A of the FW Act. There are some exceptions to this for certain employees — eg an employee currently in dispute with their employer about changing to permanent employment: s 66AAB.
- Employer response to the employee’s notification within 21 days after receiving it. The employer can only refuse on grounds that the employee…
Protected industrial action suspended to allow ‘cooling off’ (Sydney Trains)
Date: 20 February 2025
Court: Fair Work Commission, Full Bench
Judge(s): Hatcher P, Easton DP, Harper-Greenwell C
Judgment date: 19 February 2025
Catchwords: Industrial action for agreement — application to suspend action — purpose of suspending action — public interest in suspensionAbstract:
In Application by Sydney Trains and NSW Trains [2025] FWCFB 38, a Full Bench of the Fair Work Commission (FWC) suspended protected industrial action to allow ‘cooling off’ of the parties.
Background
Sydney Trains and NSW Trains applied for suspension of protected industrial action for a new enterprise agreement until 6 September 2025 (see s 425 of the Fair Work Act 2009 (Cth) (FW Act)) when they could apply for an intractable bargaining declaration to terminate all protected industrial action and proceed to arbitration: ss 235 and 269.
The applicants had initiated bargaining for a new agreement shortly after the current enterprise agreement reached its nominal expiry date, which occurred primarily with a group of rail unions (Combined Rail Unions — CRU).
Protected industrial action was undertaken by the CRU from September 2024. The action escalated to the point where it disrupted the operation of the Sydney Trains rail network, caused significant…
Bill guaranteeing three days early childhood education and care passed
Date: 20 February 2025
Source: Parliament of Australia
Abstract:
The government passed the Early Childhood Education and Care (Three Day Guarantee) Bill 2025 (the Bill) on 13 February 2025. The Bill guarantees access to three days of subsidised early childhood education and care (ECEC) per week and replaces the current activity test which determines the number of ECEC hours an individual is entitled to. The Bill will commence on 1 January 2026.
The Bill
The Bill introduces a three-day guarantee, ensuring that all Australian families are entitled to at least three days of subsidised ECEC per week (or at least 72 hours per fortnight), regardless of the time spent on recognised activities such as work or study. This replaces the existing Child Care Subsidy activity test.
The Bill also increased entitlement for families caring for an Aboriginal or Torres Strait Islander child, guaranteeing 100 hours of subsidised ECEC per fortnight.
To this end, the Bill amends the A New Tax System (Family Assistance) Act 1999 and the Family Assistance Administration Act 1999 to reflect the new policy settings, including terminological changes to align with the updated entitlements.
The Bill will…
15 days median time for determination of approval applications for building and construction industry agreements
Date: 18 February 2025
Source: FWC President’s statement: Final update on applications for approval of enterprise agreements in the Building and Construction Industry
The President of the Fair Work Commission (FWC) has issued a statement regarding the FWC’s approach to the approval of enterprise agreements in the building and construction industry. This includes additional measures in relation to approval of enterprise agreements where the Construction, Forestry and Maritime Employees Union or any branch in its Construction and General Division was an applicant, employee bargaining representative, or signatory.
The President indicates confidence in the level of compliance for enterprise agreement applications now being lodged in the industry. The median time for determination of applications for approval is down to 15 days.
For more information, read the President’ statement here.
Bill for establishment of independent Whistleblower Protection Authority introduced
Date: 14 February 2025
Source: Parliament of Australia
Abstract:
Private members (Andrew Wilkie MP, Dr Helen Haines MP, Senator David Pocock and Senator Jacqui Lambie) introduced the Whistleblower Protection Authority Bill 2025 (the Bill) for the establishment of a new and independent Whistleblower Protection Authority (the Authority) to the government on 10 February 2025.
The Bill
The Bill establishes the Authority as an independent officer of the Parliament to assist with achieving the following objectives:
- to provide information, advice, guidance and support to:
- eligible persons who disclose wrongdoing in Australia or involving Australian institutions in accordance with Commonwealth laws;
- government agencies and other bodies dealing with disclosures of wrongdoing;
- to ensure support and protection is provided to persons who disclose wrongdoing under relevant Commonwealth legislation;
- to monitor, educate and advise on the prevention of detrimental acts and omissions with respect to eligible persons who disclose wrongdoing; and
- to undertake research and policy work relevant to the efficacy of whistleblower protection laws.
The Bill also provides that the Authority will comprise of a Whistleblower Protection Commissioner (the Commissioner), Deputy Commissioners, a Chief Executive Officer and appropriately experienced and trained staff…
Principles regarding stay of proceedings (General Manager v Asmar)
Date: 13 February 2025
Court: Federal Court of Australia
Judge(s): Dowling J
Judgment date: 11 February 2025
Catchwords: Application to stay proceedings — applicable principles for stay — contended possible criminal proceedings— insufficient evidence warranting stay
Abstract:
In General Manager, Fair Work Commission v Asmar (Stay application) [2025] FCA 67, Dowling J of the Federal Court of Australia summarised the principles applicable to an application by a respondent for a stay of proceedings. The applicant contended that criminal proceedings against her was “on the cards”. Dowling J decided that there was insufficient evidence of such to warrant a stay.
Background
Proceedings were commenced by the General Manager of the Fair Work Commission seeking, among other things, civil penalties for alleged misappropriation of the funds of the Health Services Union by Ms Diana Asmar, the Secretary of the Victoria No. 1 Branch of the Union, and other respondents.
Ms Asmar sought that the proceedings be stayed “until Victoria Police advise … [Ms Asmar] that no criminal proceeding will be instituted against her that relies on conduct of … [Ms Asmar] that is substantially the same as that alleged by the … [General Manager]” ([2]…
Expert Panel seeks feedback on research proposals for TWU applications regarding regulated worker minimum standards
Date: 11 February 2025
Source: Fair Work Commission Statement [2025] FWCFB 30
Following Justice Hatcher’s statement on 22 January 2025 confirming adoption of the Road Transport Advisory Group’s (RTAG) advice as to the consultation process relating to applications made by the Transport Workers’ Union of Australia (TWU) on minimum standards orders for regulated workers among other applications (see Latest Legal Update: Developments in matters referred to the RTAG), the Expert Panel issued a statement on 11 February 2025 proposing for research regarding the nature and extent of potentially interested or affected workers, sectors or industries to be undertaken in order to assist the Expert Panel with facilitating consultation. It is not intended that the research would make determinative findings about the coverage of the applications.
To that end, the Labour Standards Support Branch of the Fair Work Commission has identified four options for potential research projects to inform the Expert Panel’s consultation process as follows:
- Information note with data on digital platform and road transport workers in Australia;
- Insights about digital platform worker characteristics and preferences;
- Data profile and mapping of the…
FWC paid agents consultation
Date: 11 February 2025
Source: Fair Work Commission consulting on implementation of recommendations 2 and 3 of Paid Agents Working Group
The Paid Agents Working Group released its recommendations in September 2024, which were accepted by the Fair Work Commission (FWC) — see Latest Legal Update: Fair Work Commission supports recommendations made by working group regarding regulating the conduct of paid agents.
The FWC is consulting particularly on the implementation of recommendations 2 and 3 —
- Recommendation 2 — Disclosure of costs arrangements at the commencement of conciliation processes.
- Recommendation 3 — Enhancement of information about representation on the FWC’s website.
Interested parties are invited to attend in-person consultation on 20 February 2025 in Melbourne from 4:00 pm to 5:00 pm. Commissioner Johns will invite feedback on draft fact sheets, checklists and information to be added to the FWC’s website about paid agents.
Those who cannot attend in person can request a Microsoft Teams link to attend by contacting consultation@fwc.gov.au .
For more information, see the FWC’s webpage, Paid agents consultation.
Indemnity costs ordered for instituting proceedings without reasonable cause (UFU v FRV)
Date: 10 February 2025
Court: Federal Court of Australia, Full Court
Judge(s): Katzmann, Snaden and Shariff JJ
Judgment date: 5 February 2025
Catchwords: Application for constitutional writs — arbitration under enterprise agreement — no prospect of success — instituted without reasonable cause
Abstract:
In United Firefighters’ Union of Australia v Fire Rescue Victoria [2025] FCAFC 7, a Full Court of the Federal Court of Australia ordered the applicant (UFU) to pay the indemnity costs of the respondent (FRV) for instituting proceedings seeking constitutional writs against a Fair Work Commission (FWC) decision. There was no prospect of those proceedings succeeding because the FWC decision had been made in private arbitration pursuant to a dispute resolution clause in an enterprise agreement.
Background
In January 2023, FRV entered into an arrangement with UFU to make contributions to a trust established by the UFU on behalf of relevant employees for the purpose of an agreed income protection scheme, pursuant to the terms of the Fire Rescue Victoria Operational Employees Interim Enterprise Agreement 2020.
FRV subsequently discovered that the income protection scheme involved payment to a discretionary trust that pooled the funds received, which were applied…
Annual rate of earnings includes unpaid contractual entitlements (Hobson v Murrin Murrin)
Date: 5 February 2025
Court: Fair Work Commission
Judge(s): Roberts DP
Judgment date: 21 January 2025
Catchwords: Application claiming unfair dismissal — annual rate of earnings — unpaid contractual entitlements included — high income threshold exceeded
Abstract:
In Murray Hobson v Murrin Murrin Operations Pty Ltd [2025] FWC 157, the Fair Work Commission (FWC) decided that the applicant’s annual rate of earnings included unpaid amounts that he was entitled to under the contract of employment.
Background
The applicant commenced employment with the respondent on 6 May 2019 in the position of Coordinator, Tailings & Water Management. He was dismissed on 26 September 2024.
On 14 August 2023, the applicant took personal leave due to a non-work-related illness and subsequently exhausted his accrued paid leave. He then took unpaid leave from 7 December 2023 to the date of his dismissal on 26 September 2024.
From 6 November 2023 (about 10 months prior to the dismissal), the applicant commenced receiving 75% of his gross salary pursuant to the respondent's Salary Continuance Policy. The benefits payable under that policy were to continue for 2 years from commencement.
The respondent objected to the applicant’s application…
Developments in matters referred to the Road Transport Advisory Group by Justice Hatcher, including proposed on demand delivery driver award
Date: 29 January 2025
Source: Fair Work Commission Statement [2025] FWC 216
Judge(s): Vice President Gibian, Deputy President Saunders, Deputy President Slevin
Abstract:
Justice Hatcher has adopted the advice of the Road Transport Advisory Group advice in a number of matters filed respectively by the Transport Workers’ Union of Australia, Menulog and an individual applicant, and directed that the consultation process commence in these applications.
Background
On 22 January 2025, Justice Hatcher issued a new statement (Statement) in relation to the following applications:
- various applications made by Transport Workers’ Union of Australia (TWU) seeking minimum standards orders for employee-like gig workers, road transport workers and owner drivers (MS2024/1, MS2024/2, MS2024/3 and MS2024/4) (TWU Applications);
- an application by Menulog Pty Ltd (Menulog) seeking the making of a new modern award to cover the on-demand delivery service industry (AM2021/72) (Menulog Application); and
- an application made by Mr Lawrence Hines seeking to vary the Road Transport (Long Distance Operations) Award 2020 (AM2024/35) (Hines Application). (collectively, the Applications).
In the Statement, Justice Hatcher confirmed the Fair Work Commission’s (FWC) acceptance and adoption of the…
Full Bench overturns extension of time decision in alleged disability discrimination case (Kurtev v KCB Australia Pty Ltd)
Date: 24 January 2025
Court: Fair Work Commission Full Bench
Judge(s): Vice President Gibian, Deputy President Saunders, Deputy President Slevin
Judgment date: 21 January 2025
Catchwords: General Protections – Extension of time – Exceptional Circumstances – Reason for delay
Abstract:
The Full Bench of the Fair Work Commission overturned an out of time decision handed down by Commissioner Johns on the basis that that he failed to correctly identify the reasons for the delay, in assessing whether exceptional circumstances existed for the purposes of s 366(2) of the Fair Work Act 2009 (Cth) (FW Act). The Full Bench also remarked on the novelty of the circumstances experienced by the employee and considered it in the public interest for the appeal to be allowed.
Background
Mr Kurtev’s employment was terminated by KCB Australia Pty Ltd (KCB) on 21 June 2024 for the alleged reason that his performance did not improve in accordance with a performance improvement plan.
Mr Kurtev filed a general protections application claiming, amongst other things, that KCB took adverse action against him in dismissing him because of his physical or mental disability. However…
Federal Court provides guidance on factors to be considered in determining a worker’s status under wholly oral contract (Primerano v Schisan Investments Pty Ltd)
Date: 23 January 2025
Court: Federal Court of Australia
Judge(s): Halley J
Judgment date: 22 January 2025
Catchwords: Appeal — Separate question — Employee vs contractor — Wholly oral contract
Abstract:
The Federal Court of Australia has overturned a decision of the Federal Circuit and Family Court of Australia, that incorrectly determined a worker was an independent contractor, finding that the FCFCA judge had regard to factors that were not relevant or determinative of the worker’s status under the oral contract.
Background
The applicant had worked for the respondent from mid 2019 to mid 2021, pursuant to a contract that was entirely oral. On appeal the parties provided the FCA with a statement of agreed facts that detailed the following features of the applicant’s engagement:
- the applicant was paid $1,500.00 per week in cash, however, it was not clear whether this was intended to be a gross or net payment;
- the applicant performed her work over five days each week, but within no particular span of hours and there was no agreement regarding the number of hours that she…
“Wage theft” laws take effect from 1 January 2025
Date: 17 December 2024
Source: New criminal underpayment laws start 1 January 2025
From 1 January 2025, the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) (Closing Loopholes Act) amends the Fair Work Act 2009 (Cth) (FW Act) to introduce a criminal offence for intentional underpayment of employees’ wages that occur after that date: see Sch 1 pt 14, item 220 of the Closing Loopholes Act, which introduces new s 327A(1) of the FW Act. To establish the offence, the employer must intend to both engage in the conduct and have the conduct result in a failure to pay the required amount to the employee: see new s 327A(3).
The offence commences following the declaration of the Voluntary Small Business Wage Compliance Code: see s 2 table item 18 and Sch 1 Pt 14, item 220 of the Closing Loopholes Act, which introduces new s 327B of the FW Act. A copy of the Code is available here.
The Australian Federal Police (AFP) or the Director of Public Prosecutions (DPP) may prosecute an employer for the offence. Proceedings must be commenced within 6 years after the commission of the offence…
No “dismissal” on expiry of a fixed term contract capable of early termination (Alouani-Roby v NRL)
Date: 12 December 2024
Court: Federal Court of Australia, Full Court
Judge(s): Snaden, Meagher and Needham JJ
Judgment date: 12 December 2024
Catchwords: Multiple fixed term contracts — capable of early termination — expiry of final contract — employee was not dismissed
Abstract:
In Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161, a Full Court of the Federal Court dismissed an appeal from a decision that an employer’s failure to renew employment at the end of a series of fixed term contracts capable of early termination was not a dismissal. Consequently, the Fair Work Commission (FWC) had no power to issue a certificate to the effect that all reasonable attempts to resolve a general protections dismissal dispute (other than by arbitration) had been, or were likely to be, unsuccessful; for the purpose of taking a dismissal dispute to court: see ss 368(3)(a) and 370(a)(i) of the Fair Work Act 2009 (Cth) (FW Act).
Background
The appellant was employed by the respondent (NRL) as a professional rugby league umpire between February 2015 and November 2020 pursuant to a series of consecutive fixed term contracts. In June 2020…
High Court allows damages for psychiatric injury in wrongful termination case (Elisha v Vision Australia Limited)
Date: 11 December 2024
Court: High Court of Australia
Judge(s): Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Judgment date: 11 December 2024
Catchwords: Breach of contract – incorporation of terms – psychiatric injury – remoteness of damage
Abstract:
The High Court of Australia addressed the availability of damages for psychiatric injury following a breach of contract in employment. The Court allowed the appeal, finding that the damages for psychiatric injury were not too remote and were within the reasonable contemplation of the parties at the time of contract formation.
Background
Adam Elisha was employed by Vision Australia Limited as an adaptive technology consultant. In 2015, Mr Elisha was involved in an incident at a hotel during work-related travel, which led to allegations of misconduct. Vision Australia initiated a disciplinary process and ultimately summarily dismissed Mr Elisha following the incident.
However, the disciplinary process was later described by the primary judge as ‘nothing short of a sham and a disgrace’. Contrary to the employer’s disciplinary policy, Mr Elisha was not informed of all the allegations against him, including previous unsubstantiated claims of aggressive behaviour, and…
Evidence required of proscribed reason to establish prima facie case for interlocutory injunction to restrain alleged unlawful adverse action (Larobina v RMH)
Date: 5 December 2024
Court: Federal Court of Australia
Judge(s): Snaden J
Judgment date: 5 December 2024
Catchwords: Suspension on full pay — alleged unlawful adverse action — application for interlocutory injunction — evidence of proscribed reason
Abstract:
In Larobina v Melbourne Health trading as Royal Melbourne Hospital [2024] FCA 1393, Snaden J considered an application for an interlocutory injunction requiring, in effect, that the respondent (RMH) lift his suspension. In this regard, Snaden J found that the applicant failed to establish a prima facie case that the suspension was actuated by reasons proscribed by the general protections provisions contained in Pt 3-1 of the Fair Work Act 2009 (Cth) (FW Act).
Background
The applicant, a cardiothoracic surgeon, was the subject of an investigation by the respondent. He was asked to attend a meeting the apparent purpose of which was to “discuss ‘some comments’” that he was alleged to have made about a colleague. The meeting did not eventuate.
Subsequently, the applicant was suspended from his employment on full pay, purportedly so that “an external investigation [could be] undertaken into alleged…
FWC fact sheet: Obstructing the CFMEU administration
Date: 4 December 2024
Source: Fair Work Commission fact sheet published 3 December 2024: Obstructing the administration of the CFMEU Construction & General Division
The Construction and General Division of the Construction, Forestry and Maritime Employees Union was placed under a scheme of administration on 23 August 2024 in accordance with the provisions of the Fair Work (Registered Organisations) Act 2009 (Cth) (RO Act). The administration is for up to 5 years.
A Fair Work Commission (FWC) fact sheet published on 3 December 2024 outlines —
- The administration scheme.
- The anti-avoidance provision in s 323P of the RO Act and what it does.
- The penalties for contravention of the anti-avoidance provision.
The fact sheet gives examples of common concerns — ie examples of avoidance conduct and of how different situations may be considered by a court. Details are provided of how to report conduct to the General Manager of the FWC.
For the full text of the fact sheet, see Obstructing the administration of the CFMEU Construction & General Division.
Managerial discretion to make business modifications resulting in genuine redundancy (Shilson-Josling v Atomic Search)
Date: 3 December 2024
Court: Fair Work Commission
Judge(s): Boyce DP
Judgment date: 25 November 2024
Catchwords: Unfair dismissal jurisdictional objection — modifications from operational changes — managerial discretion regarding modifications — dismissal for genuine redundancy
Abstract:
In Samuel Shilson-Josling v Atomic Search Pty Ltd 2024 FWC 3255; BC202417079, Deputy President Boyce of the Fair Work Commission (FWC) determined that a dismissal was a case of genuine redundancy flowing from the exercise of managerial discretion to make changes in the operational requirements of a business.
Background
The applicant was employed by the respondent as a Search Engine Optimisation (SEO) Executive based in Sydney but working remotely from Japan pursuant to an agreed flexible working arrangement.
Following a review of the operations of the SEO Team, the respondent determined that, to effectively deliver services to its SEO clients and ensure the profitable growth of the business overall, it needed to make changes to the Team’s structure. The respondent determined that it no longer required the applicant’s SEO Executive role to be performed by anyone; and that it needed a more senior role in the Team, an SEO Manager (located and…
First Full Bench decision on meaning of “agreed in writing” to bargain (ASU v Goldfields Council)
Date: 28 November 2024
Court: Fair Work Commission, Full Bench
Judge(s): Gibian VP, Clancy DP and Connolly C
Judgment date: 27 November 2024
Catchwords: Single interest employer authorisation — employer and another union — parties willing to meet — not a written agreement
Abstract:
In Australian Municipal, Administrative, Clerical and Services Union v Central Goldfields Shire Council, Ararat Rural City Council [2024] FWCFB 444, a Full Bench of the Fair Work Commission considered for the first time whether an employer and an employee organisation had “agreed in writing” to bargain for a single-enterprise agreement: see s 249(1D)(b) of the Fair Work Act 2009 (Cth) (FW Act). It held that an email indicating a willingness to meet was not a written agreement to bargain.
Background
Commencing 6 June 2023, amendments were made to the FW Act about single interest employer authorisations (SIEA): see s 2(1) table item 28 and Sch 1, Pt 21 of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth). The application concerned whether an SIEA could not be made because an employee organisation (the Australian Nurses and Midwives’ Federation (ANMF)) and…
Senate committee releases report on adopting artificial intelligence
Date: 28 November 2024
Source: Parliament of Australia
The Senate Select Committee on Adopting Artificial Intelligence has released its report on the opportunities and impacts for Australia arising out of the uptake of AI technologies, including consideration of the potential impacts of AI on industry, business and workers.
The report identified several areas where AI is likely to impact on the workforce, including in respect of productivity, job losses, and the impact on specific industries such as the creative sector and the health care sector.
Impacts on productivity
The report discusses the potential of AI to improve productivity across various industries and sectors. It cites estimates suggesting that generative AI could contribute billions of dollars to Australia's GDP by 2030 through increased productivity. AI is expected to augment and automate certain tasks, freeing up workers to focus on higher-value activities and allowing for more efficient use of the workforce.
Impact on jobs and workplaces
However, while AI is expected to create new AI-related jobs, the report highlights concerns about potential job losses, particularly in lower-skilled roles that are more susceptible to automation. There are also concerns about the impact of AI on…
Unfair dismissal application prevented by prior adverse action application (Minhas v UWU)
Date: 26 November 2024
Court: Fair Work Commission, Full Bench
Judge(s): Asbury VP, Bell and O’Neill DP
Judgment date: 25 November 2024
Catchwords: Prevention of multiple actions — prior adverse action application — general protections court application — later unfair dismissal application
Abstract:
In Jonathon Dixon and Pareen Minhas v United Workers’ Union [2024] FWCFB 442, a Full Bench of the Fair Work Commission (FWC) considered for the first time what constitutes a ‘general protections court application’ for the purposes of s 728 of the Fair Work Act 2009 (FW Act). The Full Bench held that, by s 725, a prior adverse action application claiming relief in relation to the dismissal was a general protections court application that prevented the later making of an unfair dismissal application.
Background
On 27 November 2023, the applicants filed an originating application in the Federal Court of Australia alleging that the respondent (UWU) had taken adverse action against them for prohibited reasons in organising a petition of UWU employees in support of bargaining for an enterprise agreement.
The adverse action was said to include an investigation into the applicants’ alleged misconduct; a request that they…
Fair Work Commission Full Bench overturns decision of presidential member on extension of time (Jordan and MacLeod v Multiplex Australasia Pty Ltd)
Date: 26 November 2024
Court: Fair Work Commission Full Bench
Judge(s): Vice President Gibian, Deputy President Saunders, Deputy President Slevin
Judgment date: 21 November 2024
Catchwords: Unfair dismissal - Extension of time - Representative error - Exceptional circumstances
Abstract:
The Full Bench of the Fair Work Commission has allowed appeal of two decisions of Deputy President Beaumont, in which she refused to grant extensions of time for two unfair dismissal applications filed one business day late due to a union representative's miscalculation of the 21-day time limit. The Full Bench found that representative error was the sole reason for the delay, and the employees were blameless, constituting exceptional circumstances warranting an extension of the limitation period.
Background
John Jordan and Neil MacLeod were dismissed by their employer, Multiplex Australasia Pty Ltd, on 12 July 2024. Both were members of the Construction, Forestry and Maritime Employees' Union (CFMEU) and sough immediate assistance in filing unfair dismissal applications. The employees were cooperative and provided the necessary information to their representative, to allow for the filing of the applications. The CFMEU…
Hawthorn Football Club settles racial discrimination case with former employees and their families
Date: 25 November 2024
Source: Hawthorn Football Club
The Hawthorn Football Club has reached a settlement of the Federal Court proceedings, in which former employees and their families alleged racial discrimination by the club.
Background
The former employees and their families commenced Federal Court proceedings alleging that Hawthorn Football Club engaged in acts of racial discrimination that had a significant impact on them during their time at the club.
The statement of claim filed by the applicants, included allegations that Hawthorn employees:
- exercised control over their personal lives;
- made harmful comments;
- interfered with their family life;
- made culturally insensitive remarks; and
- made stereotypical assumptions about players of indigenous heritage
The applicants alleged that the Hawthorn Football Club failed to protect the applicants from racially discriminatory speech/conduct, provide adequate anti-racism training, and ensure a culturally safe workplace. It was alleged that this conduct impaired the applicants' human rights in economic and cultural fields, and constituted unlawful discrimination under the Racial Discrimination Act 1975.
In its defence, the Hawthorn Football Club contested the alleged instances of racial discrimination and denied liability. The matter was listed for a 6.5 week…
Process adopted to make agreement lacking in authenticity and moral authority (AMWU v Sublime Infrastructure)
Date: 18 November 2024
Court: Fair Work Commission, Full Bench
Judge(s): Gibian VP, Dean and Wright DP
Judgment date: 14 November 2024
Catchwords: Determining whether genuine agreement — process for making agreement — requirements of voting employees — the Statement of Principles
Abstract:
In "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Sublime Infrastructure Pty Ltd, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2024] FWCFB 432 , a Full Bench of the Fair Work Commission (FWC) held that the process adopted to make the agreement lacked authenticity and moral authority; further, the two employees who voted to make the agreement did not have a sufficient interest in its terms and were not sufficiently representative, having regard to the employees the agreement was expressed to cover.
Background
From the evidence admitted on the appeal, it appeared that the agreement was made on 4 June 2024 by a vote of two employees in circumstances in which their employer, Sublime Infrastructure, intended that it would cover a wider group of employees then employed by another Sublime…
Industrial Relations Legislation Amendment Bill 2024 (WA) receives royal assent
Date: 15 November 2024
Source: Parliament of Western Australia
Abstract:
The Industrial Relations Legislation Amendment Bill 2024 (WA) (the Bill) was passed by State Parliament on 6 November 2024 and Royal Assent was given on 13 November 2024.
The Bill amends the Industrial Relations Act 1979 (WA) (IR Act) and the Minimum Conditions of Employment Act 1993 (WA) to more closely align them with the standards set out in the Fair Work Act 2009 (Cth) (FW Act).
A majority of changes introduced by the Bill will come into effect on 31 January 2025, with the remaining changes to commence at an unspecified later date.
The changes coming into effect on 31 January 2025 include:
- an increase to the casual loading from 20% to 25%;
- the introduction of a new prohibition on sexual harassment in the workplace to more closely align state legislation with the processes available to workers under the FW Act;
- the introduction of a new minimum condition that allows employees with a minimum of 12 months service to request flexible working arrangements in certain circumstances;
- the provision of a new objective test for the terms ‘employee’, ‘employer’ and…
Workplace Gender Equality Agency releases new data on workplace sexual harassment prevention
Date: 12 November 2024
Source: Workplace Gender Equality Agency
Abstract:
The Workplace Gender Equality Agency (WGEA) has released new data on the initiatives employers have implemented to prevent and respond to sexual harassment in the workplace. This data provides insights into the steps taken by employer following the introduction of the positive duty to provide a safe workplace for all employees, as required by amendments to the Sex Discrimination Act 1984 (Cth).
Policy Implementation
The WGEA found that nearly 99% of employers have a formal policy on work-related sexual harassment and discrimination, and that a comprehensive processes to disclose sexual harassment to HR or designated staff, was in place for 98% of employers. However, anonymous disclosure processes, which would allow the identity of the reporter or complainant to be protected, only featured in 68% of organizations.
Training and education
The majority of employers (88%) reported offering training to their workforce on sexual harassment prevention and response. The training was usually provided at induction and/or annually. While the training programs primarily cover respectful workplace conduct and behaviors expected of workers and leaders, fewer employers covered topics such as:
- the drivers…
Attorney-General appoints inaugural Anti-Slavery Commissioner
Date: 11 November 2024
Source: Commonwealth Attorney-General's Department
The Federal Attorney-General has announced the appointment of Chris Evans as the inaugural Australian Anti-Slavery Commissioner. Mr Evans will commence a five-year term on 2 December 2024, following a merit-based selection process.
Role of the Anti-Slavery Commissioner
The Anti-Slavery Commissioner will play a crucial role in strengthening efforts across government, business, and civil society to prevent and respond to modern slavery. The Commissioner's responsibilities will include:
- supporting victims and survivors of modern slavery;
- raising community awareness about modern slavery; and
- assisting businesses in addressing the risk of modern slavery practices in their operations and supply chains, and supporting compliance with the Modern Slavery Act 2018 (Cth).
The Commissioner’s background
Mr Evans previously served as the Chief Executive Officer of the Global Freedom Network of Walk Free, an organization dedicated to ending human trafficking and modern slavery. He has also held the position of Strategic Engagement Lead at Walk Free, leading the organization's engagement with governments, businesses, and civil society to forge partnerships and strengthen legislative and policy responses to modern slavery.
Prior to his work with Walk Free, Mr Evans served as a Senator for Western Australia…
FWC guidelines in relation to regulated labour hire arrangement orders effective from 1 November 2024
Date: 5 November 2024
Source: Fair Work Commission, President’s Statement — Guidelines in relation to the operation of Part 2-7A [2024] FWC 3024
Section 306W of the Fair Work Act 2009(Cth) (FW Act) provides for the Fair Work Commission (FWC) to make written guidelines in relation to the operation of Part 2-7A of the FW Act (Regulated labour hire arrangement orders).
The FWC released draft guidelines on 14 October 2024 — see our Latest Legal Update: Fair Work Commission issues draft guidance on Regulated Labour Hire Arrangement orders, seeks submissions regarding the contents of the guidelines and whether they should be published.
Following receipt of comments from interested persons, which broadly supported the FWC making the guidelines and updating them over time to reflect significant decisions made under Part 2-7A, the final guidelines have been determined by the President of the FWC: see Statement — Guidelines in relation to the operation of Part 2-7A [2024] FWC 3024.
The guidelines are not a legislative instrument: s 306W(2), FW Act. They are intended to explain how Part 2-7A operates in order to assist with education and compliance and will be…
Fair Work Commission publishes its annual report for 2023-24, highlighting key reforms and initiatives
Date: 31 October 2024
Source: Fair Work Commission
Abstract:
The Fair Work Commission (FWC) has released its Annual Report for the 2023-24 financial year, providing insights into its performance, key reforms, and initiatives during this period. The report highlights the FWC's work to adapt to significant legislative changes and implement new functions while meeting its own benchmarks for operational efficiency.
Legislative Reforms and New Functions
The report outlines the substantial expansion of the Commission's functions and services due to legislative reforms introduced by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 and the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024. These reforms have broadened the Commission's role in areas such as regulated labour hire arrangements, workplace delegates' rights, and protections against discrimination for those subject to family and domestic violence.
Additionally, the report discusses the Commission's preparations for reforms that commenced on 26 August 2024, including disputes about the right to disconnect, the new definition of 'casual employee,' and new jurisdictions relating to regulated workers and unfair terms in services contracts. These…
Qantas facing significant damages for decision to outsource ground handling operations (Transport Workers’ Union of Australia v Qantas Airways Limited (Compensation Claim))
Date: 24 October 2024
Court: Federal Court of Australia
Judge(s): Justice Lee
Judgment date: 21 October 2024
Catchwords: Adverse action — Statutory compensation — Causation — Damages assessment
Abstract:
The Federal Court has awarded statutory compensation to three test case employees who lost their jobs due to Qantas' unlawful decision to outsourcing its ground handling operations during the COVI-19 pandemic.
Background
This case arose from Qantas' November 2020 decision to outsource its ground handling operations at ten Australian airports to several third party ground handling companies (the outsourcing decision). Prior to the outsourcing decision, Qantas’ ground handling operations had been undertaken by employees of Qantas or a Qantas subsidiary. The effect of the outsourcing decision was that the vast majority of the Qantas-employed ground handlers had their employment terminated.
The Transport Workers' Union (TWU) challenged the outsourcing decision, alleging Qantas took adverse action in order to prevent its employees from exercising their workplace right to participate in protected industrial action, including by participating in a protected action ballot, and to participate in enterprise bargaining. The outsourcing decision arose in the context…
Substantial costs awarded for failed work health and safety prosecution (Guilfoyle v Walshaw)
Date: 21 October 2024
Court: Magistrates Court of Queensland
Judge(s): Magistrate Priestly
Judgment date: 14 October 2024
Catchwords: Costs - Work Health and Safety prosecution - Due diligence - Special difficulty, complexity or importance - Just and reasonable costs
Abstract:
In a landmark decision concerning costs for a prosecution of a work health and safety offence, the Magistrates Court of Queensland awarded a successful defendant substantial legal costs after finding that the prosecution’s case was flawed and that the matter involved special difficulty, complexity and importance which justified a higher costs order. The Court provided comprehensive guidance on assessing reasonable costs in complex due diligence cases.
Background
The defendant was a former director of Keydane Pty Ltd, which operated a zipline tourism business at Cape Tribulation. In June 2018, while the defendant was a director of the Keydane, changes were made to a section of the zipline, as part of an infrastructure project that was overseen by the operations manager. The defendant ceased as a director on 1 May 2019. In December 2019, a section of the zipline failed, causing serious injuries to one patron and the…
Representation in proceedings referred to FWC under dispute settlement procedure (PHI v Nash)
Date: 16 October 2024
Court: Fair Work Commission, Full Bench
Judge(s): Gibian VP, Dean DP, Slevin DP
Judgment date: 16 October 2024
Catchwords: Proper construction of agreement — representation of any party — not restricted to initiator — FWC could grant permission
Abstract
In PHI (International) Australia Pty Ltd T/A HNZ Australia Pty Ltd v Mr Martin Nash, Mr Paul Micheletti, Mr Gregory McAllister [2024] FWCFB 396, a Full Bench of the Fair Work Commission (FWC) held that a party was not precluded from being legally represented in proceedings referred to the FWC under the dispute settlement procedure in an enterprise agreement.
Background
The respondents referred a dispute to the FWC under the dispute settlement procedure in an enterprise agreement (cl 22). They contended that the agreement prohibited the appellant from being legally represented in the proceedings before the FWC.
The FWC refused the appellant permission to be represented in the proceedings. Its decision was not based on s 596 of the Fair Work Act 2009 (Cth). Instead, it concluded that the particular terms of the dispute resolution procedure in the agreement (cl 22.1.4) only permitted the party initiating the…
Fair Work Commission issues draft guidance on Regulated Labour Hire Arrangement orders, seeks submissions regarding the contents of the guidelines and whether they should be published
Date: 15 October 2024
Source: Fair Work Commission
Abstract:
The President of the Fair Work Commission has issued draft guidelines on the operation of Part 2-7A of the Fair Work Act 2009 (Cth) (FW Act), while noting that the legislation gives the FWC the direction as to whether or not to issue such guidelines. Accordingly, the President has sought submissions from interested parties on both the contents of the guidelines and whether they should be published by the FWC.
Background
Part 2-7A was added to the FW Act by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) and commenced operation on 15 December 2023. Part 2-7A empowers the FWC to make orders that regulate rates of pay for certain labour hire arrangements.
Section 306W provides that the FWC may make written guidelines in relation to the operation of Part 2-7A. Although the explanatory memorandum that accompanied the Closing Loopholes Bill, seems to suggest that s 306W ‘would require the FWC to make written guidelines in relation to the operation of Part 2-7A,’ the…
ACCC greenlights Lineage Logistics acquisition of Fremantle City Coldstores
Date: 14 October 2024
Source: Australian Competition and Consumer Commission
The Australian Competition and Consumer Commission (ACCC) will not oppose the acquisition of Bigstreet Pty Ltd (trading as Fremantle City Coldstores (FCC) by Lineage Logistics Holdings.
Both entities supply cold storage and warehousing services in Perth to clients including food manufacturers and retailers.
The ACCC’s investigation found that the acquisition would not be likely to substantially lessen competition as:
- while Lineage and FCC are competitors in the supply of cold storage services in Perth, FCC represents only a small percentage of the total Perth market;
- the combined Lineage-FCC entity will continue to face competition from significant competitors such as Americold, Golden West, as well as several other smaller suppliers; and
- customers of cold storage providers are able to switch suppliers at low cost and with relative ease.
Read the ACCC’s full media release here and the ACCC’s informal merger reviews register here.
Individual labour hire worker secures Same Job, Same Pay order (Application by Nicholas Driver)
Date: 14 October 2024
Court: Fair Work Commission Full Bench
Judge(s): President Hatcher, Vice President Asbury, Vice President Gibian
Judgment date: 11 October 2024
Catchwords: Labour hire - Regulated labour hire arrangement order Mining industry – Increase to pay and conditions
Abstract:
The Full Bench of the Fair Work Commission has made an order that a labour hire company's employees will be covered by the host employer's enterprise agreement when performing work at a mine site, in a result that will increase the worker’s hourly rate and access to loadings, allowances and penalty rates when the order takes effect on 1 November 2024.
Background
The application was made by a single employee of TP Human Capital Pty Ltd (TPHC), who worked as a haul truck driver at the Cannington silver, lead and zinc mine (the Mine) operated by South32 Cannington Pty Ltd (South32).
The applicant’s evidence as to his work and working arraignments at the mine, was supported by the evidence of an Australian Workers’ Union official. Neither TPHC nor South32 filed any evidence in the proceedings and did not oppose the application.
While TPHC employed the…
Constructive knowledge vitiates technical denial of procedural fairness (NCA v Yates)
Date: 10 October 2024
Court: Fair Work Commission
Judge(s): Hatcher P
Judgment date: 9 October 2024
Catchwords: Substitution of named employer — substituted employer not involved — contended procedural fairness denied — substituted employer’s constructive knowledge
Abstract:
In National College of Australia Pty Ltd v Rachel Yates [2024] FWC 2810; BC202414407, President Hatcher of the Fair Work Commission dismissed an application for a stay of a decision that amended an unfair dismissal application to substitute the appellant (NCA) as the respondent employer. The technical denial of procedural fairness from NCA not having been served with the amendment application was vitiated by NCA’s constructive knowledge of such.
Background
Ms Yates filed an unfair dismissal application in which she identified her former employer as Australian College of Teacher Aides and Childcare Pty Ltd (ACTAC). ACTAC denied that it had ever employed Ms Yates and sought that the application be dismissed on that basis. In its Form F3 response, ACTAC pointed to material suggesting that the correct employer was NCA, which included the letter of dismissal under the letterhead of NCA.
Ms Yates applied to amend the identity of the respondent to NCA, which was…
No dismissal, no general protections dismissal application (Johansen v Blackwood & Co)
Date: 10 October 2024
Court: Fair Work Commission
Judge(s): Masson DP
Judgment date: 9 October 2024
Catchwords: General protections dismissal application — jurisdictional objection whether dismissal — found applicant not dismissed — jurisdictional objection upheld accordingly
Abstract:
In Jodi Johansen v Blackwood & Co Pty Ltd [2024] FWC 2806, the Fair Work Commission (FWC) dismissed a general protections dismissal application made under s 365 of the Fair Work Act 2009 (Cth) (FW Act) because the applicant had not been dismissed within the meaning of s 386(1). Accordingly, the FWC had no jurisdiction to deal with the matter.
Background
The applicant was employed by the respondent as a Senior Operations Manager. She raised several allegations in relation to the Operations Manager, Jake Page. After investigation, he was counselled and the applicant’s workstation was moved away from him. Ms Ely, the respondent’s General Manager, confirmed that the applicant made no further complaints about him.
On 6 August 2024, the applicant stated that Mr Page quipped that it was cold and that perhaps they should ‘just burn Jodie (the applicant) to stay warm’. She further stated this remark had been made several days in…
Secure Jobs, Better Pay Act — Review
Date: 2 October 2024
Source: Home page: Department of Employment and Workplace Relations, Review of the Secure Jobs, Better Pay Act (Cth)
On 2 October 2024, the Minister for Employment and Workplace Relations, Senator the Hon Murray Watt, announced the appointment of Emeritus Professor Mark Bray and Professor Alison Preston to conduct the Secure Jobs, Better Pay Review (see s 4(1) of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth)).
The review will also consider Part 16A of Schedule 1 of the Fair Work Legislation Amendment (Closing Loopholes Act) 2023 (Cth): see s 4A(1).
The terms of reference for the Review are to —
- consider whether the operation of the amendments are appropriate and effective
- identify any unintended consequences of the amendments
- consider whether further amendments to the Fair Work Act 2009 (Cth), or any other legislation, are necessary to improve the operation of the amendments or rectify any unintended consequences that are identified,
see s 4(2) of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth).
For the full terms of reference, see the Department of Employment and Workplace Relations webpage, Secure Jobs, Better Pay Review — Terms of Reference.
The…
Employer awarded $500,000 for former employee’s breach of restraint obligations (AEI Insurance Group Pty Ltd v Martin (No 4))
Date: 30 September 2024
Court: Federal Court of Australia
Judge(s): Justice Thawley
Judgment date: 24 September 2024
Catchwords: Breach of contract – Restraint of trade clause – Destruction of evidence – Damages awarded for employer loss
Abstract:
The Federal Court has awarded an employer $500,000 and its legal costs, after the Court found its former employee breached the restraint of trade clauses in his employment contract by directly and indirectly soliciting clients, and destroying evidence that would have allowed the Court to ascertain the extent of the contravening conduct. The decision provides guidance on assessing the reasonableness of restraints, the protectable interests of employers, and quantifying losses from breaches.
Background
AEI Insurance Group Pty Ltd (AEI) was an insurance broker specializing in heavy vehicle insurance. In 2011, it engaged Mr Craig Martin to grow AEI's business – particularly its Queensland clients – retain clients, and provide immediate accident assistance using AEI's 24/7 emergency number. AEI provided Mr Martain with a company mobile phone to perform his role.
In late August 2022, Mr Martin abruptly resigned from AEI. In his conversations with his employer, he initially refused…
Paid Parental Leave Superannuation Contributions from 1 July 2025
Date: 19 September 2024
Source: Home page: Paid Parental Leave Amendment (Adding Superannuation for a More Secure Retirement) Bill 2024 (Cth)
As noted on the home webpage, the Paid Parental Leave Amendment (Adding Superannuation for a More Secure Retirement) Bill 2024 (Cth) passed both Houses of Parliament on 19 September 2024.
Page 1 of the Outline in the Explanatory Memorandum notes that the Bill will add a superannuation contribution to the Commonwealth-funded Paid Parental Leave Scheme: see Sch 1, item 5, which will amend the Paid Parental Leave Act 2010 (Cth) to insert a new “Chapter 3A — Paid Parental Leave Superannuation Contributions“. Parental Leave Pay recipients will receive the Paid Parental Leave Superannuation Contribution in respect of children born on or after 1 July 2025 (or regarded as having been born on or after this date for the purposes of the Paid Parental Leave Act 2010 (Cth)) — see also our Latest Legal Update: Paid Parental Leave Superannuation Contributions.
Page 2 of the EM Outline notes that the Bill will also repeal and replace s 79A(5) of the Fair Work Act 2009 (Cth) to clarify that an employee may take ‘keeping in…
FWC proposed timetable for determining model terms
Date: 18 September 2024
Source: President’s Statement — Model terms for enterprise agreements and copied State instruments: [2024] FWC 2520
The President of the Fair Work Commission (FWC) has issued a Statement that provides an overview of the legislative amendments concerning model terms made by Sch 1 Pt 5 of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) (Closing Loopholes No 2 Act) to the Fair Work Act 2009 (Cth) (FW Act).
See also the FWC Background Paper — Model terms for enterprise agreements.
Sch 1 Pt 5 commences 12 months after Royal Assent (26 February 2024) or earlier by proclamation: see s 2(1) table item 6 of the Closing Loopholes No 2 Act.
The current model terms for enterprise agreements and a model disputes resolution term for copied State instruments are prescribed by Sch 2.2, 2.3, 6.1 and 6.1A of the Fair Work Regulations 2009 (Cth).
The amendments require a Full Bench to determine —
- A flexibility term for enterprise agreements
- A consultation term for enterprise agreements
- A term about dealing with disputes for enterprise agreements
- A term for settling disputes about matters arising under a copied State instrument for a…
What is a dispute “about an agreement”? (Qube Ports v CFMEU)
Date: 17 September 2024
Court: Fair Work Commission, Full Bench
Judge(s): Gibian VP, Easton DP, Grayson DP
Judgment date: 13 September 2024
Catchwords: Dispute concerning bargaining process — dispute “about an agreement” —"unable to resolve dispute” — FWC jurisdiction over dispute
Abstract:
In Qube Ports Pty Ltd T/A Qube Ports v Construction, Forestry and Maritime Employees Union [2024] FWCFB 370; BC202413007, a Full Bench of the Fair Work Commission (FWC) held that the FWC has jurisdiction under s 240 of the Fair Work Act 2009 (Cth) to deal with a dispute about the manner in which bargaining is to occur for proposed enterprise agreements.
Background
Qube’s enterprise agreements that apply to its employees engaged to perform stevedoring functions at ports across Australia are composed of Part A (common terms and conditions across all agreements) and Part B (port-specific terms and conditions).
The MUA contended that “port-by-port” bargaining for 19 new agreements was inefficient and expensive and essentially duplicated discussions over and over again. It sought that bargaining proceed by way of a meeting to resolve Part A for each of the proposed agreements before moving to individual port meetings for Part…
Tasmanian parliament acts to criminalise industrial manslaughter
Date: 12 September 2024
Source: Parliament of Tasmania
The Work Health and Safety Amendment (Safer Workplaces) Act 2024 has passed Tasmanian parliament and is awaiting Royal Assent. Tasmania is the final jurisdiction to pass legislation criminialising industrial manslaughter but the first jurisdiction to do so via a private members bill.
Elements of offence
The Act will amend the Work Health and Safety Act 2012 (Tas) and establish an offence of industrial manslaughter at Division 4A of the WHS Act. Once the provisions take effect, a person will commit the offence of industrial manslaughter if:
- the person is a PCBU or an officer of a PCBU;
- an individual to whom the person owes a health and safety duty dies or is injured and later dies;
- the person engages in conduct that causes the death of the individual; and
- the person is negligent or reckless as to the risk to the individual of death or serious injury or illness.
The Act clarifies that conduct will meet the threshold for negligence if it involves:
- a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances; and…
Principles for determining costs applications in unfair dismissal matters (Bracken v OzForex)
Date: 12 September 2024
Court: Fair Work Commission, Full Bench
Judge(s): Asbury VP, Masson DP, Connolly C
Judgment date: 11 September 2024
Catchwords: Multiple days of hearings — application for costs orders — discretion to award costs — principles to be applied
Abstract:
In John Patrick Bracken v OzForex Limited T/A OFX [2024] FWCFB 356, a Full Bench of the Fair Work Commission (FWC) discussed the principles for determining an application for a costs order in unfair dismissal proceedings.
Background
Mr Bracken filed an application for an unfair dismissal remedy on 28 May 2021. After many days of hearings; his appeal from a first decision and a remitted hearing resulting in a further decision; a Full Bench dismissed his appeal from the further decision.
OFX sought costs for “defending multiple first instance and appeal proceedings” on the grounds in s 400A, alternatively, under s 611 of the Fair Work Act 2009 (Cth).
Decision
The Full Bench observed that —
- Section 611(2) establishes a general rule that parties in proceedings before the FWC must bear their own costs ([10]).
- The circumstances in which costs can be awarded involve the exercise of a discretionary…
Queensland introduce a ban on workplace environments that are hostile on the basis of sex
Date: 11 September 2024
Source: Queensland Parliament
The Queensland Parliament has passed the Respect at Work and Other Matters Amendment Act 2024 (Qld) (the Act), which among other things replicates the recently amended Sex Discrimination Act 1984 in establishing a ban on conduct that creates a workplace environment that is hostile on the basis of sex, and establishes a positive duty to take steps to eliminate sexual harassment at work.
The Act introduces new prohibitions on harassment on the basis of sex (including prohibiting subjecting a person to a hostile work environment), and imposes a positive duty on all employers to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and other conduct that is unlawful under the Anti-Discrimination Act 1991 (Qld) (the AD Act).
One of the stated aims of the Act is to ensure consistency between the protections contained in the State anti-discrimination law and the anti-discrimination laws that exist at the federal level.
Shared burden of proof in discrimination matters
The amendments also include the introduction of a ‘shared burden of proof’ that will apply primarily to complaints of direct discrimination…
Appeal grounds did not raise public interest in granting permission to appeal unfair dismissal decision (Illawara Coal v Sleiman)
Date: 11 September 2024
Court: Fair Work Commission, Full Bench
Judge(s): Gibian VP, Wright DP and Slevin DP
Judgment date: 6 September 2024
Catchwords: Appeal against a decision — permission to appeal required — public interest for permission — grounds of the appeal
Abstract:
In Illawara Coal holdings Pty Ltd t/a South32 v Joe Sleiman[2024] FWCFB 364, a Full Bench of the Fair Work Commission (FWC) noted the importance of grounds of appeal raising the public interest in permission being granted to appeal an unfair dismissal decision.
Background
The respondent worked for the appellant as an underground coal miner at its Appin Colliery for more than 17 years. Following an incident in which it was alleged, among other things, that he drove a vehicle through a shared zone at unsafe speeds in excess of 10km/hour and lost control of the vehicle causing it to slide in an uncontrolled manner, the respondent was interviewed and invited to respond as to whether he should be dismissed. After failing to convince the appellant otherwise, the respondent was dismissed from his employment on 1 May 2023. He applied…
High Court agrees to hear a suite of industrial relations matters
Date: 10 September 2024
Source: High Court of Australia
The High Court has granted special leave to Helensburgh Coal Pty Ltd to appeal its unsuccessful application for judicial review of a Fair Work Commission Full Bench (FWCFB) decision which confirmed it was reasonable in all the circumstances to redeploy employees into roles that were being performed by the employees of contractors.
The High Court has also agreed to hear the challenge to the CFMEU administration legislation in November, and programmed the Australian Competition and Consumer Commission’s (ACCC) secondary boycott case for a potential hearing in the December sitting. Unfortunately for the perennially unsuccessful Hot Wok Food Makers, the High Court has dismissed its application for special leave with costs payable to the United Workers Union.
Helensburgh Coal
The matter has a lengthy procedural history before the FWC, in which the matter was twice determined by Commissioner Riordan in favour of the employees (who alleged that their redundancy were not genuine, because it would have been reasonable in all the circumstances to redeploy them within the employer’s enterprise), before the employer’s second appeal to the FWCFB was dismissed.
Fair Work Commission supports recommendations made by working group regarding regulating the conduct of paid agents
Date: 9 September 2024
Source: Fair Work Commission
The President of the Fair Work Commission (FWC) has issued a Statement indicating support for the implementation of the five recommendations made by the FWC’s Paid Agents Working Group, following months of consultation around managing the conduct of some paid agents representing parties in unfair dismissal and general protections matters.
The concerns that led to the formation of the Working Group included issues with payment arrangements, quality of representation, misleading clients, acting without instructions, and inappropriate conduct during proceedings.
The Working Group undertook an extensive consultation process, receiving 44 written submissions and holding public consultations with 18 organizations. Meetings were also held with other relevant bodies, including the Western Australian Industrial Relations Commission and the South Australian Employment Tribunal.
Recommendations
The Working Group made five specific recommendations for reform, as follows:
- FWC member and conciliators will determine representation applications by paid agents before a conciliation, conference or hearings;
- lawyers and paid agents will be required to disclosed to their clients and the FWC, an estimate of existing and anticipated costs and the arrangements with the client for the payment of costs;
Interlocutory injunctions to restrain misuse of confidential information and intellectual property, and restraint of trade (Broadband v Ramirez)
Date: 3 September 2024
Court: Federal Court of Australia
Judge(s): Thawley J
Judgment date: 30 August 2024
Catchwords: Application for interlocutory relief — provisions in employment contract —confidentiality and intellectual property — restraint of trade clause
Abstract:
In Broadband Solutions Pty Ltd v Ramirez [2024] FCA 1009, Thawley J of the Federal Court of Australia granted interlocutory injunctions to restrain a former employee (Ramirez) from misusing his former employer’s (Broadband) confidential information and intellectual property. A restraint of trade injunction was also granted against Ramirez for a period of 6 months within a specified Geographic Area.
Background
Broadband is an internet service provider. In 2022, it established a Managed Services division, tasked with providing IT support (remotely and on site) for businesses that do not have IT staff.
On 13 September 2022, Broadband employed Ramirez as an IT Support Engineer to assist with establishing the Managed Services division.
Ramirez signed an employment agreement, which included clauses regarding the protection and use of confidential information and intellectual property, as well as post-employment restrictions.
FWC’s power to grant permission to be represented by a paid agent and a lawyer (CFMEU v BMD)
Date: 28 August 2024
Court: Fair Work Commission, Full Bench
Judge(s): Millhouse DP, Roberts DP, McKinnon C
Judgment date: 26 August 2024
Catchwords: Permission to be represented — construction of section 596 — ‘lawyer or paid agent’ —permission granted for both
Abstract:
In Construction, Forestry and Maritime Employees Union v BMD Urban Pty Ltd [2024] FWCFB 355; BC202411834, a Full Bench of the Fair Work Commission (FWC) refused permission to the CFMEU to appeal a decision by Simpson C to grant permission for the respondent (BMD) to be represented by a lawyer under s 596 of the Fair Work Act 2009 (Cth) (FW Act). Permission had already been granted for BMD to be represented by a paid agent.
Background
The CFMEU submitted, among other things, that Simpson C misconstrued the effect of the phrase “a lawyer or paid agent” in s 596 of the FW Act, specifically the word “or”, which the CFMEU submitted is exclusionary.
Decision
The Full Bench held ([12]) that there was no arguable case of appealable error in Simpson C’s exercise of the general discretion to grant permission for BMD to be represented by a lawyer under s 596(2)(a).
APESMA single interest employer authorisation (APESMA v Delta Coal)
Date: 27 August 2024
Court: Fair Work Commission, Full Bench
Judge(s): Hampton DP, Wright DP, Matheson C
Judgment date: 23 August 2024
Catchwords: Single interest employer authorisation — for proposed multi-enterprise agreement — for commencement of bargaining — underground black coal mines
Abstract:
In Association of Professional Engineers, Scientists and Managers, Australia v Great Southern Energy Pty Ltd T/A Delta Coal, Whitehaven Coal Mining Ltd, Peabody Energy Australia Coal Pty Ltd, Ulan Coal Mines Ltd [2024] FWCFB 253; BC202411788, a Full Bench of the Fair Work Commission (FWC) made a single interest employer authorisation under s 249 of the Fair Work Act 2009 (Cth) (FW Act).
Background
The authorisation was sought in relation to a proposed multi-enterprise agreement to cover Deputies, Undermanagers, Shift Engineers and Control Room Operators engaged by certain employers in the black coal mining industry in New South Wales (s 173(2)(e), FW Act).
The application was the first significant contested application of its kind since the legislative amendments made by Sch 1 Pt 21, item 633 of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), among others, introduced s 248(1)(b), FW Act, effective 6 June 2023.
FWC changes modern award terms concerning casual employment
Date: 27 August 2024
Source: Fair Work Commission website content, Variation on the Commission’s own initiative — Casual employment terms (AM2024/29)
A Full Bench of the Fair Work Commission (FWC) has determined changes to modern award provisions to deal with the interaction between existing casual employment terms and new laws about casual employment that commenced on 26 August 2024: see Variation on the Commission’s own initiative — Casual employment terms [2024] FWCFB 316. See also our Latest Legal Update: Casual employment changes from 26 August 2024).
The Full Bench held that the current standard definition of ‘casual employee’ in modern awards, by referring simply to the meaning attributed to that phrase in s 15A of the Fair Work Act 2009 (Cth) (FW Act), gives rise to an uncertainty in that it does not direct attention to the operation of cl 102(3) of Sch 1 to the FW Act in relation to continuing casual employees. Read literally, the standard modern award definition could be read as providing that a ‘casual employee’ for the purposes of the award is a casual employee only in accordance with the amended definition in s 15A
FWC’s role with respect to new Closing Loopholes No. 2 laws
Date: 27 August 2024
Source: Fair Work Commission website, New laws
The Fair Work Commission (FWC) has published website content on its role with respect to the new Closing Loopholes No. 2 laws that commenced operation on 26 August 2024: see FWC webpage, New laws.
The new laws relate to regulated workers and business and the road transport industry; independent contractors — unfair contracts; casual employees; employee right to disconnect; and the definition of employment. See our Latest Legal Update: Various Closing Loopholes No. 2 provisions commence from Monday, 26 August 2024.
Under the new laws, the FWC may —
- Make minimum standards and guidelines.
- Make road transport contractual chain orders and guidelines.
- Register collective agreements for registered workers and business.
- Deal with disputes about unfair deactivation and termination.
- (The President of the FWC can direct an Expert Panel to deal with matters concerning modern awards that relate to the road transport industry; road transport minimum standards orders; road transport guidelines; and road transport contractual chain guidelines. The Expert Panel must take into account the Road transport objective when performing its functions: see the FWC webpage, Expert Panel for the road transport industry.)
Paid Parental Leave Superannuation Contributions
Date: 22 August 2024
Source: Department of Social Services media release: Paying Superannuation on Paid Parental Leave
Abstract:
The Department of Social Services has issued a media release announcing that the government has introduced the Paid Parental Leave Amendment (Adding Superannuation for a More Secure Retirement) Bill 2024 (Cth) into the House of Representatives.
The media release states:
“Subject to the passage of legislation, eligible parents with babies born or adopted on or after 1 July 2025 will receive an additional payment, based on the Superannuation Guarantee (12 per cent of their Paid Parental Leave payment), as a contribution to their nominated superannuation fund.”
See also Sch 1, item 5 of the Bill, which will amend the Paid Parental Leave Act 2010 (Cth) to introduce a new “Chapter 3A — Paid Parental Leave Superannuation Contributions“.
The media release can be read here.
Various Closing Loopholes No. 2 provisions commence from Monday, 26 August 2024
Date: 22 August 2024
Various provisions in the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) take effect from Monday, 26 August 2024, including changes to the definition of casual employment, changes to the definition of employment and the introduction of the right to disconnect for some employees.
Casual employment
From 26 August 2024, the definition of casual employment at s 15A of the Fair Work Act 2009 (Cth) (FW Act) will change. The previous definition – which defined a casual employee as someone who is employed as a result of accepting an offer of employment which is made on the basis that the employer makes no firm advanced commitment to continuing and indefinite work according to an agreed pattern of work for the person – will be replaced by a definition which requires that the employment relationship be characterised by the absence of a firm advance commitment to continuing and indefinite work.
The new definition of casual employment will permit the examination of the real substance, practical reality and true nature of the employment relationship, rather than limiting the consideration to the terms of the contract.
Federal Government amends Fair Work Regulations 2009 to specify Contractor High Income Threshold
Date: 22 August 2024
Source: Parliament of Australia
The Fair Work Amendment (Contractor High Income Threshold) Regulations 2024 (Cth) has been tabled and will amend the Fair Work Regulations 2009 (Cth) by providing for the rate of the Contractor High Income threshold and the method for indexing for future financial years.
Contractor High Income Threshold
The Contractor High Income Threshold will be set at $175,000 for the financial year starting on 1 July 2024. The amount is the same as the High Income Threshold for unfair dismissal matters, commenced after 1 July 2024.
The method for indexation for future years is set out at Regulation 1.08AA(3) and provides that, for future years, the amount is to be calculated according to the following methodology:
Step 1.
Identify the assessment of current average weekly ordinary time earnings published by the Australian Statistician and in effect on 1 July in the current year.
Note: This is the amount of the average weekly ordinary time earnings, seasonally adjusted, for full-time adult employees of all employers in Australia for that day.
Step 2.
Divide it by the assessment of current average weekly ordinary time earnings published by the Australian Statistician and in effect on 1 July of the previous year.
Note: This is the amount of the average weekly ordinary time earnings, seasonally adjusted, for full-time adult employees of all employers in Australia for that day.
Casual employment changes from 26 August 2024
Date: 20 August 2024
Source: The Fair Work Commission has published a fact sheet, Changes to casual employment laws.
As from 26 August 2024, amendments to the Fair Work Act 2009 (Cth) (FW Act) will include a new definition of ‘casual employee’ in s 15A of the FW Act: see s 2(1) table item 2 and Sch 1, Pt 1 item 1 of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) (Closing Loopholes No. 2 Act).
A new employee choice pathway to permanent full-time or part-time employment will be available for casual employees (see new ss 66AAB – 66AAD and s 66K of the FW Act, inserted by Sch 1, item 6 of the Closing Loopholes No. 2 Act), from 26 February 2025 (or 26 August 2025 for employees of small business employers): see Sch 1, Pt 18 item 102(6A) of the Closing Loopholes No. 2 Act.
The Fair Work Commission (FWC) will have jurisdiction to deal with disputes concerning these matters: see new s 66M of the FW Act, inserted by Sch 1, Pt 1 item 15 of the Closing Loopholes No. 2 Act.
Regulated workers — new laws commencing 26 August 2024
Date: 20 August 2024
Source: Fair Work Commission new website content Unfair deactivation or termination of regulated workers
As from 26 August 2024, amendments to the Fair Work Act 2009 (Cth) (FW Act) will allow the Fair Work Commission (FWC) to deal with disputes alleging unfair deactivation and unfair termination of regulated workers: see s 2(1) table item 22 and Sch 1, Pt 16 item 249 of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) (Closing Loopholes No. 2 Act), which introduce, among others, Pt 3A-3 of the FW Act — Unfair deactivation or unfair termination of regulated workers (containing new ss 536LB – 536MG).
A regulated worker is an employee-like worker or a regulated road transport contractor: see new s 15G of the FW Act introduced by Sch 1, Pt 16 item 248 of the Closing Loopholes No. 2 Act.
For the definitions of employee-like worker and regulated road transport contractor, see respectively new ss 15P and 15Q of the FW Act, introduced by Sch 1, Pt 16, item 248 of the Closing Loopholes No. 2 Act.
An employee-like worker who has performed work on a regular basis through or by means of a digital labour platform for at least 6 months is protected from unfair deactivation: see new s 536LD of the FW Act, introduced by Sch 1, Pt 16 item 249 of the Closing Loopholes No. 2 Act.
Construction, Forestry and Maritime Employees Union administration bill passes Senate
Date: 20 August 2024
Source: Parliament of Australia
The Fair Work (Registered Organisations) Amendment (Administration) Bill 2024 (Cth) (the Bill) has passed the Senate after Labor and the Coalition agreed to a series of amendments to the Bill. It will now be sent to the House of Representatives where its passage is all but guaranteed following the agreement reached between the two major parties.
Amendments to the Bill
Among the key amendments to the bill are:
- the inclusion of a minimum (three year) period of administration;
- the ability to permanently ban removed officials from holding positions, as officers or employees, within the Construction, Forestry and Maritime Employees Union (CFMEU) in the future; and
- extending the application of retrospective anti-avoidance provisions to prior to John Setka’s resignation.
The Bill does not require the administrator, Mark Irving SC, to appear before Senate estimates, as sought by the Coalition. However, the administrator will be required to provide six-monthly reports to Parliament.
The Coalition were also unsuccessful in their endeavours to have a legislative ban on the CFMEU making political donations included in the Bill. However, it has accepted assurances from the administrator that, upon the scheme commencing, he intends to change the organisation’s rules to prohibit party-political donations. Under the scheme of administration, the CFMEU would likely still be able to fund campaigns on, for example, workplace health and safety issues.
Fair Work Commission publishes details of its work and performance in 2023-24
Date: 15 August 2024
Source: Fair Work Commission
Abstract:
The President of the Fair Work Commission (FWC) has released a statement detailing the work undertaken by the FWC in 2023-24, highlighting significant legislative reforms, its performance against key metrics, and the expansion of its functions and services.
Key Developments:
Among the key developments and reforms detailed in the statement, are:
1. Gender Pay Equity and Work Value Cases
The Annual Wage Review 2023-24 initiated proceedings to review minimum wage rates in five priority awards for potential increases based on work value grounds, addressing gender-based undervaluation, while the final stage of the aged care industry work value case awarded further pay increases to direct and indirect care workers, recognizing historical undervaluation due to gender assumptions.
2. Early Childhood Education and Care Industry Supported Bargaining Authorisation:
The FWC issued its first supported bargaining authorisation for the early childhood education and care sector, covering 64 employers and their employees performing certain work.
3. Modern Awards Review 2023-24:
The FWC initiated a review of modern awards, with a focus on four priority topics: the arts and culture sector, job security, work and care, and making awards easier to use. The review identified six priority issues, including:
- classification structure and other terms of the Amusement, Events and Recreation Award 2020 and whether the award adequately establishes minimum terms and conditions for ‘arts workers’;
- accessibility issues with respect to the General Retail Industry Award 2020;
Federal Government introduces legislation to put the Construction and General Division of the Construction, Forestry and Maritime Employees Union into administration
Date: 13 August 2024
Source: Parliament of Australia
The Federal Government has introduced the Fair Work (Registered Organisations) Amnedment (Administration) Bill 2024 (Cth) (the Bill) that would, if passed, allow the Construction and General Division of the Construction, Forestry and Maritime Employees Union (CFMEU) and all of its branches to be placed into administration for up to three years.
The Bill would enable the Minister to determine an appropriate scheme for the administration by legislative instrument, including specifying the administrator, while leaving the General Manager of the Fair Work Commission (FWC) responsible for oversight of the administration. Under the scheme contemplated by the Bill, the CFMEU would be responsible for paying the costs of administration, including the administrator’s remuneration.
The Bill also contains anti-avoidance provisions, with significant civil penalties, to prevent employees or officers of the CFMEU from undermining the scheme.
The legislation was introduced as the current Federal Court proceedings, initiated by the General Manager of the FWC, to appoint an administrator to the Victorian, Queensland, New South Wales and South Australian branches, is set for a further case management hearing before Justice Perram on 6 September 2024.
Proposed changes to incident notification requirements under the Model Work Health and Safety Laws
Date: 8 August 2024
Source: Safe Work Australia
Work Health and Safety (WHS) ministers in each of the model jurisdictions have agreed to a range of recommendations aimed at improving the incident notification provisions in the model WHS Act. These proposed changes seek to provide greater clarity, address gaps in the current notification requirements, and ensure that emerging psychosocial hazards and psychological harm are adequately captured.
The proposed changes are indented to provide clarity to persons conducting a business or undertaking (PCBUs) on their obligations in relation to:
- the scope of incidents ‘arising out of the conduct of the business or undertaking’ that require notification;
- the test for determining whether a serious injury or illness must be notified;
- the requirement for PCBUs at a workplace to notify each other of incidents; and
- the need to preserve evidence and incident sites.
Federal Court’s power to grant anti-suit injunction in relation to FWC arbitration (UGL v CEPU)
Date: 6 August 2024
Court: Federal Court of Australia
Judge(s): Collier J
Judgment date: 2 August 2024
Catchwords: Dispute about agreement entitlements — arbitration commenced in FWC — potential civil remedy claims — interlocutory anti-suit injunction granted
Abstract:
In UGL Rail Services Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2024] FCA 860, Collier J of the Federal Court of Australia granted an interlocutory injunction restraining the respondent (CEPU) from taking further steps in a matter before the Fair Work Commission (FWC). The FWC matter concerned a dispute between the CEPU and the applicant (UGL) about entitlement to payment of wages under an enterprise agreement on days when workers did not perform work.
Background
The FWC proceedings were commenced pursuant to the dispute settlements procedure in the enterprise agreement. The CEPU claimed wages for members for days during which no work was performed at certain UGL workplaces inside relevant worksites. The CEPU contended that there was no application for leave without pay by its members, with the result that there was no legal basis for non-payment of wages in respect of those days.
The workers had attended the worksites; were required to work at the workplaces inside; and were required to pass through the ingress points of the worksites to reach those workplaces. However, they were faced with chains and padlocks, applied by third parties at the ingress points.
Onus of proof in unfair dismissal matters (Austin v Sandgate Taphouse)
Date:1 August 2024
Court: Fair Work Commission, Full Bench
Judge(s): Asbury VP, Beaumont DP and Roberts DP
Judgment date: 1 August 2024
Catchwords: Overall burden of proof — legal onus of proof — evidentiary onus of proof — provisional and tactical burdens
Abstract:
In Brook Austin v Sandgate Taphouse Pty Ltd T/A Sandgate Post Office Hotel [2024] FWCFB 323, a Full Bench of the Fair Work Commission (FWC) noted various burdens of proof that parties can bear in the hearing of an application under the Fair Work Act 2009 (Cth) for an unfair dismissal remedy.
Background
The respondent dismissed the appellant from his employment as a venue manager at the Sandgate Post Office Hotel. In dealing with his unfair dismissal application, the FWC said that the onus rested with the respondent to establish that it had a valid reason for the dismissal (s 387(a)).
The FWC determined that there was a valid reason for the dismissal related to unsatisfactory work performance. But, the FWC found that it was not harsh, unjust or unreasonable in all the circumstances, notwithstanding some deficiency in the respondent’s performance management process and the procedures adopted in terminating the employment.
Decision
A central contention in the appellant’s appeal was that the respondent bore the evidential burden or onus of proof in relation to some criteria in s 387, which it failed to discharge.
Fair Work Commission announces various measures in response to allegations of CFMEU misconduct
Date: 1 August 2024
Source: Fair Work Commission
The Fair Work Commission (FWC) has announced that enterprise agreements in the building and construction industry, particularly those involving the Construction, Forestry and Maritime Employees Union (CFMEU), will be subject to additional scrutiny during the approval process, in light of recent allegations of potential contraventions of the Fair Work Act 2009 (Cth) (FW Act).
President Hatcher, in a statement, identified that the additional measures will include:
- *allowing interested parties to provide additional information to the FWC during the consideration of enterprise agreement approval applications;
- *establishing a dedicated webpage to publish details of the enterprise agreement approval applications in progress involving the CFMEU's Construction and General Division; and
- *seeking additional information where required.
The additional measures will apply to applications for approval of an agreement, as well as applications to vary an enterprise agreement.
For enterprise agreements lodged on or after 10 July 2024, the FWC will write to all parties to request documentary evidence regarding the steps taken in the agreement-making process. Parties will generally have three business days to respond to this request. Any concerns raised by a party will be considered by the FWC as party of the approval process.
Separately, the FWC has issued established a dedicated webpage and form, for members of the public to report a concern about the CFMEU.
Industrial Magistrates Court (WA) has jurisdiction to order enforcement of contractual underpayments (Euro Car Parts v Cannon)
Date: 31 July 2024
Court: Federal Court of Australia
Judge(s): Halley J
Judgment date: 30 July 2024
Catchwords: Eligible State/Territory court — claim for contractual underpayments — statutory obligation to pay — consideration of court’s jurisdiction
Abstract:
In Euro Car Parts Pty Ltd v Cannon [2024] FCA 828, Halley J of the Federal Court of Australia held that the Industrial Magistrates Court of Western Australia, as an “eligible State or Territory court” for the purposes of the Fair Work Act 2009 (Cth) (FW Act), has the power to make an order to enforce contractual underpayments.
Background
The respondent was employed by the appellant between 19 January 2017 and 13 February 2020, initially as a sales consultant. The parties were respectively a national system employee and national system employer within the meaning of s 13 and s 14 of the FW Act.
On 12 May 2021, the respondent filed a claim in the Industrial Magistrates Court of Western Australia seeking recovery of unpaid wages and unlawful deductions from his wages pursuant to s 323 and s 324 of the FW Act.
On 17 August 2022, the Industrial Magistrate entered default judgment in favour of the respondent and ordered the appellant, having contravened s 323 and s 324 of the FW Act, to pay the respondent $51,718.36, inclusive of pre-judgment interest.
The appellant appealed to the Federal Court pursuant to s 565(1) of the FW Act.
Commonwealth Bank entities fined for underpaying long service leave entitlements
Date: 30 July 2024
Source: Wage Inspectorate Victoria
The Commonwealth Bank of Australia (CBA) has been ordered to pay fines and costs totaling $48,000 after two of its entities, CommSec and BankWest, pleaded guilty to underpaying the long service leave entitlements of employees.
Background
The Wage Inspectorate Victoria launched an investigation into CBA following a compliance audit focused on the finance sector. The audit uncovered underpayments, totaling $1.67 million, affected 529 current and former staff members between January 2012 and January 2021.
The Wage Inspectorate Victoria subsequently brought charges against the CBA entities relating to a small selection of the underpayments discovered during the audit, in circumstances where a number of underpayments were outside the statute of limitations.
The charges
In the Melbourne Magistrates Court, CommSec pleaded guilty to failing to pay more than $38,334 in long service leave entitlements to 8 former employees, with individual underpayments ranging from $1,113 to $10,321. BankWest pleaded guilty to failing to pay more than $22,847 in long service leave entitlements to 9 former employees, with individual underpayments ranging from $521 to $9,957.
Both entities were fined $18,000 each and ordered to pay combined costs of $12,000. No conviction was recorded, in recognition of the early guilty plea and the fact that neither entity had prior convictions.
- Interested parties may make applications after 26 August 2024 to vary the right to disconnect term in individual modern awards to address the specific circumstances of particular industries and occupations.
Independent Contractor Agreement interpreted to be contract of employment (FWO v Doll House Training)
Date: 25 July 2024
Court: Federal Court of Australia
Judge(s): Goodman J
Judgment date: 24 July 2024
Catchwords: Three workers with disabilities — “converted” to independent contractors — written Independent Contractor Agreement — terms established employment relationship
Abstract:
In Fair Work Ombudsman v Doll House Training Pty Ltd (No 2) [2024] FCA 811, Goodman J held that, properly interpreted, the written terms of an Independent Contractor Agreement (ICA) established a contract of employment between the parties.
Background
Between 27 August 2020 and 28 October 2020, three workers performed work for the respondent (Doll House) in its business, Doll House Training Club. The business’ activities included generating research into robotics, coding and artificial intelligence and their application to the health and wellness industry.
The Fair Work Ombudsman (FWO) contended, among other things, that Doll House contravened: (i) s 357 of the Fair Work Act 2009 (Cth) (FW Act), by representing to each of the workers that the contracts of employment under which they were or would be employed were contracts for services under which they performed or would perform work as an independent contractor.
FWC Implementation Report about new right to disconnect functions
Date: 19 July 2024
Source: Fair Work Commission Implementation Report — Right to disconnect
Abstract:
The Fair Work Commission (FWC) has published an Implementation Report — Right to disconnect that discusses and sets out how the FWC plans to implement its new functions relating to disputes between employers and their employees about the right to disconnect.
The new functions will be conferred on the FWC under Sch 1 Pt 8 of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Closing Loopholes No. 2 Act), effective 26 August 2024: see s 2(1) table item 10.
Further to Sch 1 Pt 8 item 97 of the Closing Loopholes No. 2 Act —
- An employee will have a right to disconnect, which will be a workplace right for the purposes of Pt 3-1 of the Fair Work Act 2009 (Cth) (FW Act): see new s 333M, FW Act.
- The FWC will be able to deal with a dispute between an employee and their employer about the right to disconnect, including by issuing a stop order and/or otherwise dealing with the dispute: see new ss 333N-333V, FW Act.
FWC’s provisional views on variation of award casual employment terms
Date: 19 July 2024
Source: Statement: Variation on the Commission’s own initiative — Casual employment terms [2024] FWCFB 312
In Statement: Variation on the Commission’s own initiative — Casual employment terms [2024] FWCFB 312, a Full Bench of the Fair Work Commission (FWC) has set out its provisional views in relation to variations to modern award casual terms that are necessary to resolve potential uncertainty and difficulty in interactions between existing provisions and the Fair Work Act 2009 (Cth) (FW Act).
The amendments will be introduced by Sch 1 Pt 1 of the Fair Work Amendment (Closing Loopholes No. 2) Act 2024 (Cth) (Closing Loopholes No. 2 Act), effective 26 August 2024: see s 2(1) table item 2 of the Closing Loopholes Act No. 2.
The amendments concern —
- Repealing the existing definition of ‘casual employee’ in s 15A of the FW Act and introducing a new definition that includes a ‘general rule’ and ‘indicia’; while retaining the concept that a casual has no ‘firm advance commitment to continuing indefinite work’, which was included in the definition by Sch 1 Pt 1 item 2 of the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth).
Fair Work Ombudsman to investigate allegations against CFMEU
Date: 18 July 2024
Source: The Fair Work Ombudsman statement on CFMEU
The Fair Work Ombudsman is to act on a request by the Minister for Employment and Workplace Relations to investigate certain allegations against the Construction and General Division of the Construction, Forestry and Maritime Employees Union (CFMEU).
The allegations are in relation to the making of enterprise agreements. The allegations may involve conduct contravening the Fair Work Act 2009 (Cth) including adverse action, coercion, misrepresentation and/or a failure to comply with disclosure requirements of benefits under an enterprise agreement for a registered organisation.
According to the Fair Work Ombudsman, Anna Booth: “The Fair Work Ombudsman’s investigations are continuing into the conduct of the Construction and General Division of the CFMEU relating to possible Fair Work Act contraventions. If unlawful conduct is established we will take appropriate enforcement action.”
For more information, see the Fair Work Ombudsman statement on CFMEU.
FWC publishes draft right to disconnect modern award term
Date: 11 July 2024
Source: Statement of President Hatcher of the Fair Work Commission: Variation of modern awards to include a right to disconnect term [2024] FWC 1818
The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) (Closing Loopholes No. 2 Act) introduces a ‘right to disconnect’ term for modern awards effective from 26 August 2024: see s 2(1) table item 10, Sch 1 Pt 8 and Sch 1 Pt 18 item 308 of the Closing Loopholes No. 2 Act; and Sch 1 cl 111C(2) of the Fair Work Act 2009 (Cth) (FW Act).
The commencement date for small business employers is 26 August 2025: see Sch 1 cl 111D of the FW Act.
The FWC has developed a draft ‘Employee right to disconnect’ term: see Attachment A to the Statement of President Hatcher of the Fair Work Commission: Variation of modern awards to include a right to disconnect term [2024] FWC 1818.
The Statement notes at [10]-[13] —
- Interested parties may make applications after 26 August 2024 to vary the right to disconnect term in individual modern awards to address the specific circumstances of particular industries and occupations.
Enterprise agreements voted on post-1 July 2024 must include delegates’ rights
Date: 11 July 2024
Source: Fair Work Commission Delegates’ rights terms
Enterprise agreements voted on after 1 July 2024 must include a delegates’ rights term for workplace delegates to whom the agreement applies — ie a term that provides for the exercise of the rights of workplace delegates.
See s 205A(1) of the Fair Work Act 2009 (Cth) (FW Act), inserted by s 2(1) table item 8 and Sch 1 Pt 7 item 81 of the Fair Work Legislation Amendment (Closing Loopholes) Act 2023) (Cth); effective 15 December 2023, but with no application to an enterprise agreement approved by employees before 1 July 2024: see Sch 1 Pt 18 item 308 of the Closing Loopholes Act 2023, Sch 1 Pt 15 cl 96 of the FW Act.
Modern awards have been varied to include a delegates’ rights term: see our Latest Legal Update, Fair Work Commission varies modern awards and inserts delegates’ rights term — term to take effect from 1 July 2024; see also the Fair Work Commission’s (FWC) webpage, Find an award.
FWC Implementation Report about new functions relating to unfair deactivation and unfair termination for regulated workers, and unfair contracts for independent contractors
Date: 8 July 2024
Source: Fair Work Commission Implementation Report — unfair deactivation and unfair termination for regulated workers, and unfair contracts
The Fair Work Commission (FWC) has published a Report that discusses its new functions relating to —
- *regulated workers (both employee-like workers and regulated road transport contractors); and
- *independent contractors,
as described in Sch 1 Pt 16 of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) where a worker has been unfairly deactivated, unfairly terminated or is a party to a contract that includes an unfair contract term.
The functions commence on 26 August 2024 (or earlier by proclamation).
The Report is intended to support engagement and consultation with stakeholders about implementation of these new aspects of the FWC’s jurisdiction. The Report is divided into —
- *Section 1: an outline of the new ss 536LP and 536LR of Pt 3A-3 and s 536ND of Pt 3A-5 of the Fair Work Act 2009 (Cth) that guide the exercise of the FWC’s functions for unfair deactivation, unfair termination and unfair contract remedies.
- Section 2: the proposed actions the FWC will take in implementing the new functions.
First labour hire arrangement order (Application by Mining and Energy Union)
Date: 2 July 2024
Court: Fair Work Commission, Full Bench
Judge(s): Hatcher P, Asbury VP, Saunders DP
Judgement date: 1 July 2024
Catchwords: Labour hire production workers —host employer production employees — performing same job essentially — regulated labour hire arrangement
Abstract:
In Application by the Mining and Energy Union[2024] FWCFB 299, a Full Bench of the Fair Work Commission (FWC) granted a labour hire arrangement (‘same job, same pay’) order in respect of employees of a labour hire business (Workpac). The employees work side-by-side with Production employees of Batchfire at a black coal mine in Queensland.
Background
An enterprise agreement covers Batchfire and each of its employees eligible to be a member of, among others, the Mining Energy Union (MEU).
The agreed facts were that Batchfire and Workpac Production employees—
- Attend the same pre-start meeting each day and are allocated work and equipment for their shift by Batchfire in the same way.
- Perform the same production work and operate the same Batchfire-owned or leased machines and equipment.
- Wear the same Batchfire uniforms.
- Are equally required to comply with Batchfire’s instructions, usually communicated by Batchfire’s supervisors.
- Must undertake the same site induction conducted by Batchfire.
- Operate pursuant to the Safety and Health Management System established by Batchfire as obliged to do so under applicable legislation.
- Operate under the same Batchfire standard operating procedures, policies and procedures.
Fair Work Commission varies modern awards and inserts delegates’ rights term — term to take effect from 1 July 2024
Date: 1 July 2024
Source: Fair Work Commission
The Fair Work Commission (FWC) has issued a Statement with the new delegates' rights term to be included in all 155 modern awards, although the Full Bench of the Fair Work Commission that was charged with dealing with the matter, was split — with Deputy President Binet not endorsing the term approved by Vice President Asbury and Commissioner Lim.
Background
The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth), which passed through parliament in December 2023, required the FWC to make determinations varying modern awards to include a delegates’ rights term by 30 June 2024.
The term, which will come into operation and take effect from 1 July 2024, was the product of consultation with relevant stakeholders and interested parties, including as to whether there were award specific variations required to the draft term published by the FWC.
The Term
The delegates’ rights term that will be included in modern awards from 1 July 2024, sets out the rights and entitlements of workplace delegates appointed or elected in accordance with the rules of their employee organisation. These rights include:
- Representation — Workplace delegates have a right to represent the industrial interests of eligible employees – being members and potential members of delegate’s organisation — in various matters, such as consultation about workplace changes, dispute resolution, disciplinary processes, and enterprise bargaining.
Fair Work Ombudsman cracks down on illegal job advertisements
Date: 25 June 2024
Source: Fair Work Ombudsman
The Fair Work Ombudsman (FWO) has issued 151 infringement notices and fined employers more than $89,000 for advertising jobs with illegally low rates of pay, from March 2023 when the Fair Work Act 2009 (Cth) (FW Act) was amended to prohibit job advertisement that included rates of pay below the applicable minimum wage.
During the course of its investigations, the FWO uncovered instances where employers had advertised positions with wages as low as $7.00 to $10.50 per hour for full-time/part-time hospitality staff.
In addition to issuing fines to the offending businesses, the FWO is engaging with major online job websites, and urging these platforms to increase awareness amongst the employers who advertise on their sites, about legal minimum wage requirements. The FWO has also requested that job websites enable employers to enter specific wage rates rather than preset ranges, which may inadvertently lead to non-compliance. Additionally, the regulator is exploring ways to enhance its surveillance capabilities and detection tools to identify non-compliant job ads more effectively.
Fair Work Ombudsman Anna Booth emphasized the importance of addressing this issue, as illegal job advertisements often target vulnerable groups, such as migrant workers who may be unaware of their rights or desperate for income.
Fair Work Commission Full Bench applies multifactorial test in determining worker was an employee, not an independent contractor (Aspire 2 Life Pty Ltd v Tidmarsh)
Date: 26 June 2024
Court: Fair Work Commission Full Bench
Judge(s): Vice President Asbury, Deputy President Saunders, Deputy President Wright
Judgment date: 20 June 2024
Catchwords: Appeal – general protections application involving dismissal – jurisdictional objection – employee vs independent contractor
Abstract:
A Fair Work Commission Full Bench (FWCFB) has dismissed a disability service provider’s jurisdictional objection to a general protections application involving a dismissal, finding that the worker was in fact an employee and not an independent contractor, and therefore was capable of being dismissed by the employer.
Background
The business – Aspire 2 Life – claimed that it provided a ‘support coordination service’ for the elderly, in the Fraser Coast region of Queensland. Aspire 2 Life gave evidence that it assisted around 200-300 clients through a workforce of approximately 45 independent contractors, most of whom were engaged as personal care workers.
Ms Tidmarsh was one of these workers. Ms Tidmarsh was engaged from February 2023, pursuant to a contract that purported to establish an independent contracting relationship.
The contract made multiple references to the worker being engaged as an independent contractor and required Ms Tidmarsh to:
- have an Australian Business Number;
- pay her own tax and superannuation;
- hold and maintain professional indemnity insurance and public liability insurance; and
- be responsible for her own workcover insurance.
Fair Work Commission hands down decision in Annual Wage Review 2023-24
Date: 26 June 2024
Source: Fair Work Ombudsman Pay Guides
The Fair Work Ombudsman (FWO) has published Pay Guides that have been updated for rates that will apply from the first full pay period on or after 1 July 2024, as well as a Pay and Conditions Tool: see the FWO webpage, Pay guides.
The new rates are a result of the 3.75% increase to the National Minimum Wage and minimum award wages: see Latest Legal Update: Minimum wage and other increases on or after 1 July 2024.
Minimum wage and other increases on or after 1 July 2024
Date: 25 June 2024
Source: Fair Work Ombudsman , Fair Work Commission, ATO
Increases to the National Minimum Wage and other thresholds, caps and rates will apply on or after 1 July 2024:
- National Minimum Wage — 3.75% increase to $915.90/week or $24.10/hr, from the first full pay period on or after 1 July 2024: see the Fair Work Ombudsman (FWO) webpage, 2023 to 2024 Annual Wage Review.
- Award minimum wage increase — 3.75%, from the first full pay period on or after 1 July 2024. For the adjustments in modern industry and occupational awards, modern enterprise awards and State reference public sector modern awards; and award expense-related allowances, see the Fair Work Commission (FWC) webpage, Determinations for the Annual Wage Review 2023-24.
- Agreements — the minimum wage increase may apply as the base rate in an agreement cannot be less than the base rate in the applicable award: see the FWO webpage, 2023 to 2024 Annual Wage Review
- FWC remedy for unfair dismissal — on 1 July 2024, the high income threshold rises from $167,500 to $175,000; and the compensation cap increases from $83,750 to $87,500 for claims post-1 July 2024 (ie half the amount of the high income threshold: see s 392(5), Fair Work Act 2009 (Cth) (FW Act)).
Failure to comply with non-contractual KPIs not a valid reason for dismissal (Favaloro v MVCI)
Date: 19 June 2024
Court: Fair Work Commission
Judge(s): Deputy President Boyce
Judgment date: 111 June 2024
Catchwords: KPIs imposed on employee — no KPI contract term — dismissal for performance reason — reason was not valid
Abstract:
In Favoloro v MVCI Australia Pty Ltd [2024] FWC 1508; BC202407604, Deputy President Boyce of the Fair Work Commission held that a failure by the applicant to meet key performance indicators (KPIs) did not constitute a valid reason for the dismissal because the KPIs had no contractual force or effect.
Background
The respondent is part of the Marriott Vacation Club. It sells time share, hotel packages and rooms, and tourist activities, primarily by telephone marketing.
The applicant was employed as a telemarketer in the role of ‘Vacation Specialist’ from 14 June 2021 to 10 April 2023. She was offered a Vacation Planner (VP) role on 10 April 2023 and signed (and thus agreed to enter) a written employment agreement (Employment Contract) for the new role on 11 April 2023.
Cl 19 of the Employment Contract provided that it was the entire agreement between the parties.
Cl 7 was in relation to “Incentive Arrangements”. It provided to the effect that —
- The applicant may be eligible to participate in the [VP] Commission Plan, which would be paid in addition to the remuneration specified in cl 5.
Government announces plans to introduce legislation to allow the manufacturing division of the CFMEU to vote on a demerger
Date: 19 June 2024
Source: Press conference, Sydney International Airport
The Minister for Employment and Workplace Relations, The Hon Tony Burke MP, has announced plans to introduce legislation in the next sitting of parliament that will allow the manufacturing division of the Construction, Forestry, Maritime and Energy Union (CFMEU) to vote on whether or not to leave the amalgamated union.
The announcement follows attempts by the manufacturing division to leave the CFMEU under the current legislative regime for de-amalgamations, however, Minister Burke identified that there were technical reasons that prevented this from occurring. Minister Burke also noted that the division had been engaged in discussions with the leadership of the CFMEU around a potential demerger, however, there was some indication that those discussions had stalled, leading to the need to introduce legislation.
In the press conference, Minister Burke noted that the decision to legislate would potentially allow the manufacturing division to follow the path taken by the mining and energy division of the CFMEU in December 2023, in which it withdrew from its amalgamation with the larger union and established the Mining and Energy Union as a separate entity.
Parliament is next scheduled to sit on Monday, 24 June 2024.
Determinations for the Annual Wage Review 2023-24
Date: 19 June 2024
Source: The Fair Work Commission has published its Determinations for the Annual Wage Review 2023-24.
On 3 June 2024, an Expert Panel of the Fair Work Commission (FWC) issued the Annual Wage Review 2023–24 decision [2024] FWCFB 3500 to change modern award minimum rates. The changes will take effect from the first full pay period that starts on or after 1 July 2024.
The FWC has published its Determinations adjusting minimum wages in the modern industry and occupational awards, the modern enterprise awards and the State reference public sector modern awards; and expense-related allowances for awards.
The FWC’s Determinations can be read here.
Fair Work Commission Full Bench issues first intractable bargaining workplace determination (Transport Workers’ Union of Australia v Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd)
Date: 17 June 2024
Source: Fair Work Commission Full Bench
Judgment date: 12 June 2024
Catchwords: Intractable bargaining workplace determination – agreed terms
The Fair Work Commission Full Bench (FWCFB) has issued its first intractable bargaining workplace determination and, in doing so, considered the factors set out at s 275 of the Fair Work Act 2009 (Cth) (FW Act), for the first time since they were amended by the Fair Work Legislation Amendments (Closing Loopholes #2) Act 2024.
Background
The parties commenced bargaining in October 2022, following the nominal expiry of the Cleanaway Erskine Park Drivers Enterprise Agreement 2020, on 23 September 2022. Over the course of 12 months, the parties participated in 17 bargaining meetings and Cleanaway Pty Ltd (Cleanaway) put two versions of a replacement agreement to its employees for a vote, however, both agreements were comprehensively rejected by the employees who cast a valid vote.
On 16 October 2023, the Transport Workers’ Union (TWU) made an application for an intractable bargaining declaration pursuant to s 234 of the FW Act.
New South Wales introduces industrial manslaughter bill
Date: 10 June 2024
Source: Parliament of New South Wales
Jurisdiction: New South Wales
Abstract:
The New South Wales Government has introduced a bill to amend the Work Health and Safety Act 2001 (NSW) (the Act) and establish an offence of industrial manslaughter, bringing it into line with the rest of the mainland States and Territories, in imposing potential criminal sanctions for workplace deaths.
The Work Health and Safety Amendment (Industrial Manslaughter) Bill 2024 (NSW) (the Bill), was introduced by the Minns Government on 4 June 2024, and will insert a new Part 2A – Industrial Manslaughter into the Act.
The offence of industrial manslaughter will have four elements, being that the person charged:
- has a health and safety duty;
- is a person conducting a business or undertaking (PCBU) or is an officer of a PCBU;
- engages in conduct that constitutes a failure to comply with the person’s health and safety duty that causes the death of a worker or another individual to whom the person’s health and safety duty is owed; and
- engages in the conduct with gross negligence.
The maximum penalty for the offence of industrial manslaughter will be set at either 25 years imprisonment for an individual or a $20 million fine for a body corporate.
Civil standard of proof applies to allegations of theft in workplace investigations (Coogee Legion Ex-Service Club Ltd v Deanna Giblin)
Date: 7 June 2024
Court: Fair Work Commission
Judge(s): Deputy President Clancy, Deputy President Dean and Deputy President Grayson
Judgment date: 29 May 2024
Catchwords: Appeal against decision – unfair dismissal – standard of proof – theft cases
Abstract:
In Coogee Legion Ex-Service Club Ltd v Deanna Giblin [2024] FWCFB 270; BC202406922, the Full Bench of the Fair Work Commission upheld a finding that a dismissal was harsh, unjust and unreasonable but disagreed with the Deputy President’s comments at first instance that the employer was required to determine an allegation of theft based on the criminal standard of proof.
Background
The Employer, Coogee Legion Ex-Service Club Ltd (Employer), operates a club that has VIP lounges, bars and function facilities overlooking Coogee Beach. The Employer conducted an audit that found they were a missing a large amount of stock of food and beverages. The Employer then updated its policies regarding expectations for handling stock and processing transactions, communicated this to staff, and scheduled a meeting to communicate the changes to staff.
During that meeting, the Employer reiterated the changes to the policy which set out “supplying or accepting drinks without payment is considered as theft and staff involved may be dismissed”.
After the meeting, staff remained on site to socialise and CCTV footage showed that Ms Giblin ordered a drink that she did not pay for.
Responsible franchisor penalised $1.44 million for underpayments by franchisees to employees (FWO v 85 Degrees)
Date: 5 June 2024
Court: Federal Court of Australia
Judge(s): Bromwich J
Judgment date: 4 June 2024
Catchwords: Franchisor’s knowledge of breaches — ‘responsible franchisor’ provisions breached — franchisor’s course of conduct — specific and general deterrence
Abstract:
In Fair Work Ombudsman v 85 Degrees Coffee Australia Pty Ltd [2024] FCA 576, Bromwich J of the Federal Court of Australia imposed penalties totalling $1.44 million on the respondent (85 Degrees) as a ‘responsible franchisor’ under s 558A of the Fair Work Act 2009 (Cth) (FW Act). The penalties were imposed for contravening conduct by 8 of its franchisees.
Background:
The franchisees’ contraventions took place in 2019. They involved underpayments to employees owed under a modern award and of provisions of the FW Act relating to payment of minimum wages and other employee entitlements; and related failures to keep employment records, pay on a weekly or fortnightly basis and provide payslips as required (2019 contraventions).
By s 558B(1) of the FW Act, a responsible franchisor (ie one with a significant degree of influence or control over a franchisee) is liable for contraventions of civil remedy provisions of the FW Act if the franchisor or one of its officers knew, or could reasonably be expected to have known, that the contraventions by its franchisee would occur (s 558(1)(d)(i)); or contraventions of the same of similar character were likely to occur (s 558(1)(d)(ii)).
Ending casual service early triggers unlawful termination dispute (Lattouf v ABC)
Date: 4 June 2024
Court: Fair Work Commission
Judge(s): Boyce DP
Judgment date: 3 June 2024
Catchwords: Meaning of “employment relationship” — five-day casual engagement — employer ended employee’s service — employer terminated employment relationship
Abstract:
In Ms Antoinette Lattouf v Australian Broadcasting Corporation [2024] FWC 1441, a Deputy President (Boyce DP) of the Fair Work Commission (FWC) held that the respondent employer (ABC) terminated the applicant’s (Ms Lattouf) employment when it took her off-air before the end of a five-day casual engagement as a radio presenter.
Background
In November 2023, the ABC’s Sydney Content Director (Ms Green) contacted Ms Lattouf. Subsequently, Ms Lattouf entered a written casual contract of employment to fill in on the ABC’s “Sydney Mornings” radio program as the presenter for five consecutive weekday shifts commencing on Monday, 18 December 2023.
After the first shift on 18 December 2023, in a conversation with Ms Green, Ms Lattouf was told that the ABC “… had received heaps of complaints from pro-Israel lobbyists who are not happy that ABC Radio Sydney had placed [Ms Lattouf] on-air …”. Ms Green asked Ms Lattouf to keep a low profile on social media.
Ms Lattouf agreed to that, but advised Ms Green that she would make social media posts from “reputable sources” about “facts”. Ms Green’s overall advice to Ms Lattouf was that it would be best to make no social media posts at all for the rest of the week.
Fair Work Commission hands down decision in Annual Wage Review 2023-24
Date: 3 June 2024
Source: Fair Work Commission
Abstract:
The Fair Work Commission has issued its decision in the Annual Wage Review 2023-24, increasing the National Minimum Wage by 3.75%, from $882.80 per week (comprised of 38 ordinary hours of work) or $23.23 per hour, to $915.90 per week or $24.10 per hour. The minimum wage for casual employees will be increased to $30.16.
The National Minimum Wage is the base rate of pay for adult employees in the national system, who are not covered by an award or enterprise agreement. The National Minimum Wage is also used to benchmark wage rates in modern awards. Noting the current economic circumstances, including that inflation remains above the Reserve Bank of Australia’s target range, the Expert Panel decided to increase all minimum wages rates in modern awards by 3.75%, in line with the increase to the National Minimum Wage.
Conducting the Annual Wage Review for 2023-24, was a Fair Work Commission Expert Panel, led by the President of the FWC, Justice Hatcher, and comprised of:
- Vice President Asbury;
- Deputy President Hampton;
- Deputy President O'Neill;
- Ms Labine-Romain;
- Professor Baird AO; and
- Mr Cully.
In its decision, the Expert Panel considered that the decision would operate on about a quarter of all Australian employees.
Labour hire provider fined for failing to pay long service leave entitlements
Date: 30 May 2024
Source: Wage Inspectorate Victoria
Abstract:
A labour hire agency has been fined $15,500 in the Melbourne Magistrates' Court for failing to pay long service leave entitlements to five casual employees. The underpayments totalled more than $32,000, with the amounts owing to individuals ranging from $5,176 to $7,460.
The Wage Inspectorate Victoria began investigating Allstaff Australia PJE Pty Ltd after a number of former employees alleged their long service leave entitlements hadn’t been paid to them on the end of their employment, despite them having worked for the labour hire provider for over seven years.
The case highlights the importance of complying with long service leave obligations under the Long Service Leave Act 2018 (Vic) (the Act), which applies to various types of employment arrangements, including casual and seasonal work.
Under the Act, employees who have worked continuously for the same employer for at least seven years are entitled to long service leave. The entitlement applies to workers who are full time, part time, casual, seasonal or engaged pursuant to one or more fixed term contracts. Employers must pay any accrued but unused long service leave entitlements to eligible employees on the day their employment ends.
Waiver of legal professional privilege (APESMA v Peabody)
Date: 29 May 2024
Court: Fair Work Commission, Full Bench
Judge(s): Hampton DP, Wright DP, Matheson C
Judgment date: 28 May 2024
Catchwords: Documents produced under order — document summarised legal advice —whether document attracted privilege — whether privilege was waived
Abstract:
In Association of Professional Engineers, Scientists and Managers, Australia, The v Great Southern Energy Pty Ltd T/A Delta Coal, Whitehaven Coal Mining Ltd, Peabody Energy Australia Coal Pty Ltd, Ulan Coal Mines Ltd [2024] FWCFB 266, a Full Bench of the Fair Work Commission (FWC) held that APESMSA waived legal professional privilege in a Power Point slide prepared by APESMA’s Senior Legal Officer. The slide summarised external legal advice to APEMSA about the operation of the Fair Work Act 2009 (FW Act) relevant to its application to the FWC. The waiver occurred when the slide was shown during a meeting with a broad group of APESMA’s membership on 18 November 2023.
Background
On 20 February 2024, the Peabody applied under s 590(2)(c) of the FW Act for orders requiring APESMA to produce documents relating to its application, which is for a single interest employer authorisation under s 248 of the FW Act. The respondents oppose the application.
Labor Government announces further appointments to the Fair Work Commission in support of its promise to give workers an equal voice
Date: 24 May 2024
Source: Tony Burke MP
The Labor Government has announced the appointments of three new members to the Fair Work Commission from employee-friendly backgrounds in support of its promise to “restore balance to the Fair Work Commission”.
Mark Gibian SC will take over as Vice President of the Fair Work Commission on 11 June 2024, following the retirement of current Vice President Joseph Catanzariti on 3 June 2024.
Julia Fox and Ben Redford have also been appointed as Commissioners and will commence on 27 May 2024 and 8 July 2024 respectively. Ms Fox has served as the National Assistant Secretary at the Shop, Distributive and Allied Employees’ Association since 2016. Mr Redford has been an Executive Director at the United Workers Union since 2019.
In a press release, Tony Burke MP said that he “look[s] forward to the day [he] can return to appointing people to the Commission from employee and employer backgrounds in equal numbers”.
Exercise of intellectual freedom required compliance with highest ethical, professional and legal standards (University of Sydney v NTEU)
Date: 21 May 2024
Court: Federal Court of Australia, Full Court
Judge(s): Perram, Lee and Kennett JJ
Judgment date: 17 May 2024
Catchwords: Right to intellectual freedom — enterprise agreement protected right — standards for exercising right — onus to prove compliance
Abstract:
In University of Sydney v National Tertiary Education Union [2024] FCAFC 57; BC202406256, a majority of a Full Court of the Federal Court of Australia (Perram and Lee JJ) held that the respondents (the NTEU and a Senior Lecturer, Dr Anderson) failed to discharge the onus to prove that various comments made by Dr Anderson were an exercise of intellectual freedom in compliance with the standards referred to in applicable enterprise agreements.
Background
Dr Anderson made various comments on Facebook and Twitter between April 2017 and October 2018 including —
- a picture of the then United States President, Donald Trump, and his two predecessors, Presidents Obama and George W Bush, with the words Masterminds of Middle East terrorism
- Murdoch press fabricates ‘genocide threat’ story in attempt to intimidate anti-war academics
- Key al Qaeda supporter John McCain coming to the University of Sydney
- University of Sydney threatens to sack me for criticising the deceitful war propaganda of News Ltd journalists and for showing that the university’s latest guest John McCain is a key al Qaeda supporter.
Reasonably arguable that statements made in the context of bargaining for enterprise agreement, are captured by the Australian Consumer Law (Ramsay Health Care Australia v Australian Nursing Federation Industrial Union of Workers Perth)
Date: 20 May 2024
Court: Federal Court of Australia
Judge(s): Perry J
Judgment date: 17 May 2024
Catchwords: Interlocutory injunction – Statements made by bargaining representative – application of Australian Consumer Law – Injunction granted
Abstract:
The Federal Court has restrained, by interlocutory injunction, a union party from publishing statements about a private health care provider’s ratios and quality of care, that were allegedly false and/or misleading, contrary to the Australian Consumer Law.
Background
The application arose in response to a series of advertisements published in The West Australian and broadcast on radio stations in and around Perth, in which the Australian Nursing Federation Industrial Union of Workers Perth (the Union) made the following representations:
“Public Hospitals 1:4 (enforced)”;
“Ramsay Hospitals 1:8”;
“Under Ramsay Health Care, it’s double the ratio and double the danger.”;
“Don’t waste your money with Ramsay when they waste your quality of care.”; and
“It’s time Ramsay took the health of their patients and staff seriously.”
At the time the advertisements were published and broadcast, the Union and Ramsay Health Care Australia (Ramsay) were engaged in bargaining for a replacement enterprise agreement. Ramsay suspended bargaining while it sought undertakings from the Union regarding the advertisements.
Open Minds signs Enforceable Undertaking after underpaying disability support workers
Date: 20 May 2024
Court: Federal Court of Australia
Source: Fair Work Ombudsman
Ombudsman (FWO) after self-reporting that it underpaid over 1,500 employees by $4.2 million over 6 years.
Background
Open Minds self-reported underpayments in June 2021 after an internal payroll review.
Between July 2015 and July 2021, Open Minds underpaid 1,507 current and former full-time, part-time, casual support workers, residential support workers and case workers $3.33 million in entitlements related to sleepovers, penalty rates, overtime, allowances and pay increments. This included over $190,000 in unpaid superannuation.
Open Minds also underpaid around $695,000 to employees on common law contracts between 2015 and 2022.
The underpayments stemmed from Open Minds' uncertainty about interpreting its own enterprise agreement and errors in its payroll and rostering systems.
Open Minds has back paid all affected employees, with individual payments ranging from small amounts up to almost $50,000. The average back payment was around $2,400.
Outcome
The EU requires Open Minds to implement measures to ensure that all its workers are paid correctly, including:
- commissioning an independent audit to ensure compliance with employee entitlements;
Evergreen or rolling guarantee period, sufficient for guarantee of annual earnings to be deemed valid (Roebuck v Shopping Centres Australasia Property Group Re Limited)
Date: 14 May 2024
Court: Federal Court of Australia
Judge(s): Feutrill J
Judgment date: 15 May 2024
Catchwords: Alleged contravention of award – guarantee of annual earnings – identifiable guarantee period – guarantee valid, award displaced
Abstract:
The Federal Court has affirmed an employer’s guarantee of annual earnings, even though the guarantee did not specify a precise end date, finding that it was valid and had the effect of displacing the application of the award in respect of an employee earning over the high income threshold.
Background
The employee was engaged as a Regional Leasing Manager – a position that would have otherwise been subject to the terms of the Real Estate Industry Award 2020 (the Award) – from 4 December 2020. Annexed to the employee’s contract of employment was a document titled ‘Schedule 1 – Guarantee of Annual Earnings’ (the guarantee).
Through the guarantee, the employer undertook that the employee would be paid a base salary of $219,178.00 (the guaranteed amount), from 1 January 2021 until his employment was terminated, and in consideration for this guarantee, the award would not apply to the employee’s employment.
Following the employee’s redundancy, he sought to challenged the validity of the guarantee.
Principles for determining who is an employee (Feldschuh v Strong Room Technology)
Date: 8 May 2024
Court: Fair Work Commission, Full Bench
Judge(s): Gostencnik, Anderson and Easton DP
Judgment date: 7 May 2024
Catchwords: Current common law principles — focus on contract terms — determine rights and obligations — subsequent conduct not relevant
Abstract:
In Feldschuh v Strong Room Technology Pty Ltd [2024] FWCFB 254, a Full Bench of the Fair Work Commission (FWC) held that a company director was not also an employee. The Full Bench applied the current common law principles for the determination of when a person is an employee.
Background
The appellant was a shareholder and director of the respondent (a platform technology company largely operating in the pharmaceutical, health and aged care industries). He was a director from about December 2019 to 12 September 2023 when he was removed as such by a circulating unanimous resolution of the other directors.
The appellant made a general protections application under s 365 of the Fair Work Act 2009 (Cth) (FW Act). The respondent objected on the grounds that he was not an employee.
The objection was upheld by the FWC, which consequently dismissed the application for want of jurisdiction. The appellant appealed that decision to the Full Bench.
Deputy President erred in finding need for exceptional circumstances to justify non-publication order (Santos WA Energy Ltd v Darren Whittaker)
Date: 30 April 2024
Court: Fair Work Commission Full Bench
Judge(s): Deputy Presidents Gostencnik and Anderson, Commissioner Tran
Judgment date: 29 April 2024
Catchwords: Permission to appeal — appeal in public interest — criteria for assessing non-publication application — whether ‘desirable’ to restrict publication
Abstract:
A Full Bench of the Fair Work Commission (FWCFB) has overturned the decision of a presidential member to reject an application to prohibit or restrict the publication of certain information relating to witnesses in an unfair dismissal proceeding, finding that the Deputy President applied the wrong test at the first instances and failed to have regard to the evidence led in support of the non-publication application.
Background
The application arose in the context of an unfair dismissal proceeding, in which the respondent (to the appeal) was dismissed following allegations that he had sexually harassed a 22 year old female apprentice. The employer engaged a law firm to investigate the allegations. The investigator interviewed multiple witnesses, including the apprentice, who was reluctant to make a formal complaint due to concerns of retribution, vilification and the potential adverse impact on her career.
Following the dismissal and subsequent filing of the proceedings, the employer sought a non-publication order under s 594 of the Fair Work Act 2009 (Cth), that would inter alia prohibit or restrict the publication and disclosure of any details which would identify the apprentice.
Woolworths fined $1.263 million for underpaying long service leave entitlements in Victoria
Date: 29 April 2024
Source: Wage Inspectorate Victoria
Woolworths Group Limited and its subsidiary Woolstar Pty. Limited have been fined a total of $1,263,000 in the Melbourne Magistrates’ Court for long service leave underpayments amounting to over $1 million owed to more than 1000 employees.
Victorian long service leave scheme
Long service leave is a distinctively Australian employment benefit. It consists of an entitlement to an extended period of leave after a specified period of service with an employer. Long service leave is generally regulated by state and territory legislation.
The Long Service Leave Act 2018 (Vic) provides that at any time after completing 7 years of continuous service, an employee is entitled to an amount of long service leave equal to 1/60th of the employee’s total period of continuous employment.
Guilty plea
Following an investigation by Wage Inspectorate Victoria, Both Woolworths Group Limited and Woolstar Pty. Ltd pled guilty to failure to pay long service leave entitlements.
Magistrate Warda of the Magistrates’ Court of Victoria said the underpayments were the result of systemic and wide-spread payroll failures and that Woolworths is expected to have infallible payroll systems in place given its status as one of the largest employers in Australia.
New South Wales junior doctors set to achieve a recorded settlement for an underpayment class action
Date: 24 April 2024
Source: Supreme Court of New South Wales
Junior doctors in New South Wales have secured the largest ever settlement of an underpayment class action matter, after their claim for overtime payments resulted in NSW Health agreeing to pay nearly $230 million in wages to group members. The settlement has yet to be approved by the NSW Supreme Court.
Background
The statement of claim was originally filed on 16 December 2020, by lead plaintiff – Dr Amireh Fakhouri – on behalf of person employed in the 6 years immediately prior to the date of the claim in the positions of junior medical officer, intern, resident medical officer, registrar and senior registrar.
The statement of claim alleged that NSW Health, as the respondent employer, had failed to pay their full entitlements, including failing to pay overtime and failing to pay for meal breaks on certain shifts.
The lead plaintiff claims that, during her employment with NSW Health, as an intern, resident and senior resident, she was required to work both rostered overtime and hours in excess of her rostered hours – ie unrostered overtime.
Full Court validates Full Bench’s activist approach in Hot Wok matter (Hot Wok Food Makers Pty Ltd v United Workers Union (No 3))
Date: 23 April 2024
Court: Federal Court of Australia, Full Court
Judge(s): Collier, Rangiah and Charlesworth JJ
Judgment date: 22 April 2024
Catchwords: Judicial review —apprehended bias —fair-minded lay observer — no bias identified
Abstract:
The Full Court of the Federal Court of Australia (FCAFC) has rejected an employer’s application for judicial review of the decisions of the Fair Work Commission Full Bench (FWCFB), finding that the FWCFB’s conduct did not give rise to an apprehension of bias, although noting that the FWCFB’s characterisation of the employer’s conduct as ‘contumacious’ in one respect, was ‘somewhat harsh’.
Background
The FCAFC proceedings arose from an appeal of Deputy President Mansini’s decision, in July 2021, to approve the Hot Wok Food Makers Pty Ltd Workplace Agreement 2021 (the Agreement). The appeal, filed by the United Workers Union (UWU), was nearly 12 months out of time and followed the obiter comments of Commissioner Hunt in her decision terminating the Agreement’s predecessor.
The appeal was heard on 21 July 2022, however, in the course of preparing its reasons, the FWCFB’s attention was drawn to various conflicting statements made by or on behalf of Hot Wok or its related entities, in previous FWC proceedings.
Request for permanent work from home arrangements refused on reasonable business grounds (Shane Gration v Bendigo Bank)
Date: 19 April 2024
Court: Fair Work Commission
Judge(s): Commissioner Platt
Judgment date: 15 April 2024
Catchwords: Flexible work arrangements request –Request to work remotely – Whether reasonable business grounds
Abstract
In Shane Gration v Bendigo Bank [2024] FWC 717, the Fair Work Commission found that an employer’s refusal of a request for permanent work from home arrangements was based on reasonable business grounds.
Background
The applicant, an employee of Bendigo Bank, made an application to the Fair Work Commission under s 65B of the Fair Work Act 2009 (Cth) in October 2023. The dispute did not resolve and the applicant was directed to file a revised flexible work arrangement request.
The subsequent flexible work arrangement request, the subject of the decision, was declined by the respondent due to reasonable business grounds.
The respondent’s policy requires that employees attend the office 2 days per week. The applicant’s requests to work from home on a permanent basis were primarily due to:
- his wife’s foot injury that required him to assist her at home (although he was invited to provide medical evidence concerning his wife’s condition and did not do so, nor did she provide a statement); and
TK Maxx pleads guilty to breaches of child labour law
Date: 18 April 2024
Source: Wage Inspectorate Victoria
TK Maxx has pleaded guilty in the Melbourne Magistrates Court to seven breaches of Victoria’s child employment laws, including by employing a child without a permit just one week after it was warned by the regulator that children under 15 years old cannot work without permits.
Victoria’s Child Labour Laws
Every state and territory in Australia regulates, in some form, the employment of children. However, Victoria is the only jurisdiction that requires employers to hold a licence if they want to employ a child under the age of 15. Prior to 1 July 2023, businesses needed a permit to employ a child under 15 years old.
House of Representatives inquiry into automated decision-making and machine learning in the workplace
Date: 12 April 2024
Source: Parliament of Australia
On 9 April 2024, the House Standing Committee on Employment, Education and Training (Committee) adopted an inquiry into the digital transformation of workplaces following a referral made by the Minister for Employment and Workplace Relations, Tony Burke.
The Committee will report on the rapid development and uptake of automated decision making and machine learning techniques in the workplace.
The Committee will consider the following matters in conducting the inquiry:
- the benefits for productivity, skills development, career progression and job creation in Australia;
- the role of business software and regulatory technology in improving regulatory compliance in the workplace relations system, including their use by regulators, and accountability for errors resulting in non-compliance;
- the risks, opportunities, and consequences for the nature of work, including effects on hiring, rostering, work intensity, job design, wage setting, monitoring, surveillance and job quality;
- the effects of these techniques on the scope of managerial prerogative, labour rights, ability for workers to organise, procedural fairness, equality, discrimination, and dignity at work;
- appropriate safeguards or regulatory interventions to guide responsible implementation in the workplace, including the digital skills and resources necessary for employers to appropriately utilise these technologies; and
MONA’s Ladies Lounge ordered to admit men after patron’s discrimination complaint (Lau v Moorilla Estate Pty Ltd)
Date: 11 April 2024
Court: Tasmanian Civil and Administrative Tribunal
Judge(s): R Grueber, Deputy President
Judgment date: 9 April 2024
Catchwords: Anti-discrimination – promotion of equal opportunity – exemption for artistic purposes – discrimination not permitted
Abstract:
The Tasmanian Civil and Administrative Tribunal (TASCAT) has ordered the Museum of Old and New Art’s (MONA) Ladies Lounge to admit men, after an anti-discrimination complaint was filed by a patron of the museum who was denied entry to the exhibit.
Background
The complaint arose from an instance in which the complaint had purchased a ticket to MONA and, while visiting the museum, attempted to gain access to the Ladies Lounge. He was denied entry to the space on the basis of his gender identity, being male.
He subsequently filed a complaint about the discrimination against Moorilla Estate Pty Ltd, as the operator of MONA.
The Ladies Lounge
The Ladies Lounge was established in 2020. It consists of a 6.5m x 7m private lounge enclosed by a curtain and invigilated by a museum attendant. Inside the Ladies Lounge are artworks that may only be viewed within the Ladies Lounge.
Redundancies deemed ‘not genuine’ because of availability of redeployment to roles that could have been insourced (Helensburgh Coal Pty Ltd v Bartley)
Date: 9 April 2024
Court: Federal Court of Australia Full Court
Judge(s): Katzmann, Snaden and Raper JJ
Judgment date: 5 April 2024
Catchwords: Judicial review of FWCFB – alleged unfair dismissal – genuine redundancy exception – reasonableness of redeployment
Abstract:
A mining company has unsuccessfully sought judicial review of a Fair Work Commission Full Bench (FWCFB) decision that it was reasonable in all the circumstances to redeploy employees into roles that were being performed by the employees of contractors. The Full Court of the Federal Court of Australia (FCAFC) confirmed that the covid-era dismissals were not genuine redundancies, clearing the way for the employees’ unfair dismissal applications to be determined by the Fair Work Commission, four years after they were filed.
Background
The matters arose as a result of a decrease in demand for the coal produced at the mine site on which the employees worked, in large part attributable to the impacts of the COVID-19 lockdowns. In this context, the employer resolved to restructure and reduce its workforce.
Treasury releases issues paper on non-compete clauses
Date: 4 April 2024
Source: The Department of Treasury
The Department of Treasury has released an issues paper covering emerging concerns relating to:
- non-compete clauses and other restraint of trade agreements between businesses and workers; and
- no-poach and wage-fixing agreements between businesses.
The issues paper forms part of Treasury’s two year Competition Review into competition laws, policies and institutions which was announced in August 2023. The Competition Review is being conducted within Treasury by the Competition Taskforce (see our previous Latest Legal Update here).
The issues paper seeks feedback from workers and employers through a questionnaire, while the Competition Taskforce is also conducting targeted stakeholder engagement and meetings to gather perspectives from workers about the competitive impact of non-compete and related restraints. The feedback will inform the Government’s consideration of whether reform in the space is needed.
Responses to the paper are due by 31 May 2024.
The issues paper and other key documents including the workers and employer questionnaires are available here.
South Australia industrial manslaughter laws to commence on 1 July 2024
Date: 5 April 2024
Source: Safe Work SA
On 29 November 2024, the Work Health and Safety (Industrial Manslaughter) Amendment Bill 2023 (SA) passed both South Australian Parliament. It introduces a new criminal offence of industrial manslaughter that will come into operation on 1 July 2024.
The industrial manslaughter offence will be inserted into the Work Health and Safety Act 2012 (SA). It will apply to reckless or grossly negligent conduct that breaches a health and safety duty and results in the death of another person. The offence carries a maximum penalty of 20 years' imprisonment for individuals and a maximum fine of $18 million for companies.
The two-year limitation period for bringing prosecutions under the Work Health and Safety Act 2012 (SA) will not apply to industrial manslaughter prosecutions.
This legislation brings South Australia in line with most other states and territories in Australia. New South Wales and Tasmania are the only Australian jurisdictions that have not passed a specific industrial manslaughter offence. The New South Wales Government has announced its intention to introduce new a bill to parliament dealing with industrial manslaughter in 2024.
New Fair Work Commission Rules 2024 commenced on 27 March 2024
Date: 27 March 2024
Source: New Fair Work Commission Rules 2024
The new Fair Work Commission Rules 2024 (FWC Rules 2024) commenced on 27 March 2024: rule 2(1), table item 1 of the FWC Rules 2024.
The FWC Rules 2024 regulate the practice and procedure of the FWC.
The FWC Rules 2024 largely remake the old Rules, but with changes to update them and improve their usability. Some old rules have been amended and new rules introduced to accommodate changes made by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) to the FWC’s functions.
For more information, see the Fair Work Commission Rules 2024 Explanatory Statement.
Senate passes Paid Parental Leave Amendment (More Support for Working Families) Bill 2023
Date: 22 March 2024
Source: Parliament of Australia
Jurisdiction: Commonwealth
Abstract:
On 18 March 2024, Senate passed the Paid Parental Leave Amendment (More Support for Working Families) Bill 2023 (Cth) (the Bill) to extend the Paid Parental Leave scheme.
Extending parental leave pay to 26 weeks
Currently, parents may claim up to 20 weeks (100 days) of parental leave pay in the period starting from the day the child is born and ending on the day before the child’s second birthday or anniversary of care.
From 1 July 2024, the Paid Parental Leave scheme will be extended by 2 weeks each year to reach 26 weeks from 1 July 2026.
Extending the reserved period
Reserving a portion of Paid Parental Leave for each parent is intended to encourage both parents to take time off work after the birth or adoption of a child.
Currently, a family can access a maximum of 100 days as flexible Paid Parental Leave. The most flexible Paid Parental Leave one parent in a couple can access is 90 days – this reserves 10 flexible Paid Parental Leave days for another parent.
Maximum penalty for underpayments associated with a modern slavery arrangement
Date: 21 March 2024
Court: Federal Court of Australia
Judge(s): Raper J
Judgement date: 20 March 2024
Catchwords: Underpayment contraventions – no participation from respondent – conduct deliberate and serious – maximum penalties imposed
Abstract:
The Federal Court has imposed the maximum civil penalties available, on the former Indian High Commissioner, Mr Navdeep Suri Singh, who personally engaged a domestic worker and then kept her in ‘slave-like conditions’ for eight months.
Background
As observed by Justice Raper in the liability judgment, the applicant’s working conditions born no semblance of what might be expected by Australian society.
On arriving in Australia, the applicant’s passport was taken from her and she was required to work seven days a week. She was paid a total of $9.00/week and, in any even, she did not have access to this money as it was paid to a foreign bank account that had been set up by Mr Suri. She was not permitted to leave the house, except for brief periods that involved looking after Mr Suri’s dog. Mr Suri required the applicant sign documentation that was deliberately false, in an attempt to conceal the true nature of her working arrangements.
Stage 3 of Aged Care Industry – Work Value Case substantially concluded, with further increase for direct care workers and increase for indirect care workers
Date: 20 March 2024
Court: Fair Work Commission Full Bench
Judge(s): President Hatcher, Asbury VP, O’Neill DP, Professor Baird, Dr Risse
Judgment date: 15 March 2024
Catchwords: Applicant to vary modern award – Aged Care Industry – Work Value Case –– increase in award rates
Abstract:
The Fair Work Commission Full Bench (FWCFB) has awarded a further increase to direct care workers in the aged care sector, and a modest increase to the wage rates for indirect care workers, addressing an historic undervaluing of this work due to gender-based assumptions.
Read the full text of the commission’s judgment here: Aged Care Award 2010, the Nurses Award 2020 and the Social, Community, Home Care and Disability Services Industry Award 2010 [2024] FWCFB 150.
Background
The applications to vary the Aged Care Award 2010, the Nurses Award 2020 and the Social, Community, Home Care and Disability Services Industry Award 2010, arose from the findings of the Royal Commission into Aged Care Quality and Safety (the Royal Commission) – the final report of which was tabled on 1 March 2021 (the Report).
Effect of High Court decisions on identifying an employment relationship where no written contract (EFEX Group v Bennett)
Date: 20 March 2024
Court: Federal Court of Australia, Full Court
Judge(s): Katzmann, Bromwich and Lee JJ
Judgment date: 15 March 2024
Date: 20 March 2024
Catchwords: Nature of contractual relationship — where contract wholly oral — identifying the contractual terms— inferences from post-contractual conduct
Abstract:
In EFEX Group Pty Ltd v Bennett [2024] FCAFC 508, a Full Court of the Federal Court of Australia considered the effect of recent High Court decisions in relation to whether an oral contract created an employment relationship or not.
Background
Mr Bennett worked for EFEX as its South Australian business development manager. He agreed to take up the position as a contractor, and invoiced EFEX for his services as the trustee of a family trust. GST was charged and collected. No income tax was withheld from distributions to him.
When EFEX terminated the contract, Mr Bennett claimed unfair dismissal. EFEX took the jurisdictional point that Mr Bennett was not an employee but an independent contractor.
The Fair Work Commission (FWC) found that Mr Bennett was an employee.
Junior employee being paid $9.97 per hour successfully applies to terminate Burger Urge agreement
Date: 13 March 2024
Court: Fair Work Commission Full Bench
Judge(s): Bell GP, Johns and Allison C
Judgment date: 13 March 2024
Catchwords: Agreement passed nominal expiry date – Uncontested application – Employees better off under award – Agreement terminated
Abstract:
A junior employee has successfully applied to the Fair Work Commission (FWC) to terminate the Burger Urge Enterprise Agreement 2015 (the Agreement), with a Full Bench of the FWC finding that the Agreement was less beneficial than the terms of the award in a number of respects.
Background
The Agreement was initially approved in 2015, by Deputy President Bull, who raised a number of concerns with the application of the Better Off Overall Test (BOOT) when compared with the relevant provisions of the Fast Food Industry Award 2010 (the Award).
The employers – multiple burger urge franchisees – through their representative provided undertakings with respect to weekend penalty rates and rates of pay for trainees. The undertaking regarding weekend penalty rates required the employers not roster an employee to work more than three hours on the weekend, unless they had first worked 11.5 hours during the week.
Statement by FWC President on award variations to include right to disconnect
Date: 12 February 2024
Source: President of Fair Work Commission issues Statement on variation of modern awards to include a right to disconnect.
Abstract:
Following passage of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth), the Fair Work Act 2009 (Cth) (FW Act) is amended as from 26 August 2024 to include provisions concerning a ‘right to disconnect’. See LLU: Right to disconnect set to become law.
The amendments mandate the inclusion of a right to disconnect term in all modern awards, to be effective from 26 August 2024 or, in the case of small businesses and their employees, 26 August 2025.
The Fair Work Commission (FWC) must make written guidelines about the operation of new Division 6—Employee right to disconnect, which is to be included in Part 2-9—Other Terms and Conditions of Employment of the FW Act.
The Statement provides an overview and outlines the FWC’s approach to implementing the changes and includes a draft timetable for stakeholder consultation and engagement.
Comments on the draft proposed timetable should be sent to awards@fwc.gov.au by 12:00 pm (AEDT) on Wednesday, 20 March 2024.
Qantas fined for standing down health and safety representative who directed workers to cease unsafe work (SafeWork NSW v Qantas Ground Services Pty Ltd (No. 4))
Date: 8 March 2024
Court: District Court of NSW
Judge(s): Russell SC DCJ
Judgment date: 6 March 2024
Catchwords: health and safety representatives – work health and safety - capacity to pay penalty – direction to cease work – risk of contracting COVID-19 - no consultation with worker
Abstract:
In SafeWork NSW v Qantas Ground Services Pty Ltd (No. 4) [2024] NSWDC 53, Qantas Ground Services Pty Ltd (QGS), a wholly owned subsidiary of Qantas Airways Limited, was convicted and fined for engaging in unlawful discriminatory conduct against a health and safety representative (HSR).
This is the first decision regarding discriminatory conduct under work health and safety legislation across Australia.
Background
Mr Seremetidis was employed by QGS to work at Sydney International Terminal as a truck driver and he was also an elected health and safety representative (HSR). Mr Seremetidis, in his capacity as a HSR, directed workers to stop the work of cleaning and servicing planes from China at the beginning of the COVID-19 pandemic pursuant to s 85 of the Work Health and Safety Act 2011 (NSW) (NSW WHS Act).
Superannuation changes on the horizon
Date: 7 March 2024
Source: Fair Work Commission.
The Fair Work Commission (FWC) has published a decision and draft determination varying 147 modern awards in order to address reflect the current position regarding superannuation contributions. Meanwhile, the Federal Government has announced that superannuation contributions are to be included in the entitlement to paid parental leave from July 2025.
Changes to modern awards
Following a review of all 155 awards, the FWC determined that 147 awards required variation in order to address a suite of changes to superannuation laws, contained in the Treasury Laws Amendment (Your Future, Your Super) Act 2021 (Cth) and the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 (Cth).
The changes included:
- a requirement for employers to ask the Australian Taxation Office whether an employee is a member of a complying superannuation fund — a stapled fund — in the event that the employee doesn’t nominate a superannuation fund on the commencement of their employment. If the employee is a member of a stapled fund, the employer must make superannuation contributions to this fund for the benefit of the employee; and
- the establishment of an entitlement to superannuation contributions as one of the National Employment Standards (NES), with effect from 1 January 2024.
FWO’s timeline of ‘Closing Loopholes’ changes
Date: 5 March 2024
Source: The FWO has released a timeline of ‘Closing Loopholes’ changes to help workplace participants know the new workplace laws.
The Fair Work Ombudsman (FWO) urges those across workplaces to educate themselves on the new ‘Closing Loopholes’ laws, which cover gig work, casual employment and the right to disconnect among many other matters: see Latest Legal Update Closing Loopholes No. 2 Act commenced on 27 February 2024.
Among other things, new maximum penalties that courts can impose for certain contraventions are now in effect for non-small business employers.
The FWO’s timeline of changes can be read here.
Senate hands down report on Modern Slavery Amendment (Australian Anti-Slavery Commissioner) Bill 2023
Date: 29 February 2024
Source: Parliament of Australia
Abstract:
The Senate Legal and Constitutional Affairs Legislation Committee (the Committee) has released its report on the provisions of the Modern Slavery Amendment (Australian Anti-Slavery Commissioner) Bill 2023 (the Bill), with the report recommending the Bill be passed with amendments.
The Report
The Bill proposes to establish an Anti-Slavery Commissioner in order to support the objectives of the Modern Slavery Act 2018 (Cth) (the Act).
The report acknowledges the scope of the issue, as well as the inherent difficulty in identifying the prevalence of modern slavery in society. Specifically, the report highlighted the Australian Institute of Criminology estimate as to the occurrences of modern slavery in Australia – being that:
- there were between 1,300-1,900 victims of human trafficking and slavery between 2015-2017; and
- for every one victim identified, there are approximately four undetected victims.
The report also noted that the establishment of an Anti-Slavery Commissioner was a near universal feature of the submissions received into the review of the Act, published by the Attorney General’s Department on 25 May 2023 (the McMillan report).
Closing Loopholes No. 2 Act commenced on 27 February 2024
Date: 27 February 2024
Source: Fair Work Commission
The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) (Closing Loopholes No. 2 Act) received Royal Assent on 26 February 2024 and commenced on 27 February 2024: see the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 (Cth).
The Closing Loopholes No. 2 Act makes amendments as from 27 February 2024 to various provisions of the Fair Work Act 2009 (Cth) including those dealing with enterprise bargaining and multi-enterprise agreements and franchisees; intractable bargaining; and registered organisations and withdrawal from amalgamation.
Further amendments will commence over the coming months including in relation to the road transport industry, ‘employee-like’ workers performing work in the gig economy and the right to disconnect, which will commence on 26 August (or another date by proclamation).
For a list of the measures that impact on the Fair Work Commission, see The Closing Loopholes Acts — what’s changing.
Shareholders’ resolution to remove director did not terminate employment (Niccolo v Drummond)
Date: 27 February 2024
Court: Fair Work Commission, Full Bench
Judge(s): Asbury VP, Colman and Millhouse DP
Judgment date: 26 February 2024
Catchwords: Date of dismissal contested — resolution ineffective to dismiss — dismissal by authorised person — extension of time denied
Abstract
In Niccolo Pty Ltd v Sandro Drummond [2024] FWCFB 101 (Niccolo v Drummond), a Full Bench of the Fair Work Commission (FWC) found that a resolution of the shareholders of a company (Niccolo) to terminate a director (Mr Drummond) from his offices was ineffective to also terminate his employment as managing director.
Background
Niccolo appealed against a decision of Commissioner Wilson who concluded that for the purposes of an unfair dismissal application made by Mr Drummond, he was dismissed on 11 August 2023, within the 21-day period limited by s 394(2) of the Fair Work Act 2009 (Cth) (FW Act).
Niccolo contended that Mr Drummond was actually dismissed on 5 August 2023 when one Nicholas Bolton acting on the instruction of the general manager, Danny Agocs, sent Mr Drummond a message stating:
Niccolo needs to immediately terminate your employment and involvement in the company.
Employee choice pathway will replace current laws on casual conversion from August 2024
Date: 26 February 2024
Source: Parliament of Australia
Abstract:
The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (the Act) received royal assent on 26 February 2024, meaning that the changes to the current laws around casual conversion will take effect from 26 August 2024.
For the full text of the Act, click here.
Employee Choice pathway
The new model of casual conversion is described as giving employees a choice about whether they convert to permanent employment or remain as casuals. It will replace the current process where employers were required to offer casual conversion to eligible employees after a specified period of time.
The key steps under the new pathway are as follows:
- initial employee notification;
- consultation; and
- employer response.
Parties who are in dispute in relation to a notification at the conclusion of this process must first attempt to resolve the dispute at the workplace level. If this is not possible, an avenue exists for either party to apply to the Fair Work Commission (FWC) for assistance resolving the dispute.
First company convicted under Victoria's workplace manslaughter laws
Date: 19 February 2024
Source: WorkSafe Victoria
On 19 February 2024, LH Holding Management Pty Ltd was sentenced in the Supreme Court of Victoria under Victoria’s workplace manslaughter laws following the death of a subcontractor in the workplace.
It is the first completed workplace manslaughter prosecution under s 39G(1) of the Occupational Health and Safety Act 2000 (Vic) since the Victorian workplace manslaughter provisions came into effect on 1 July 2020.
The offence applies to negligent conduct by a duty holder, including officers, in breach of a work health and safety duty that causes the death of another person who was owed the duty.
The offence currently carries a maximum penalty of 25 years’ imprisonment for an individual and 100,000 penalty units for a body corporate (currently around $19.2 million).
The fatality occurred in 2021 when a forklift operated by the director tipped over and landed on top of the subcontractor.
WorkSafe Victoria investigated the incident and found there were measures that would have been reasonably practicable for the company to have implemented to reduce the risk of serious injury or death arising from operation of forklifts.
Fair Work Ombudsman secures record penalty against Commonwealth Bank Group for underpayments (Fair Work Ombudsman v Commonwealth Bank of Australia)
Date: 16 February 2024
Court: Federal Court of Australia
Judge(s): Bromwich J
Judgment date: 15 February 2024
Catchwords: Determination of civil penalties – Sections 50 and 345 of the FW Act – Underpayment of employee entitlements
Abstract:
The Federal Court of Australia has imposed fines of $7.31 million against Commonwealth Bank of Australia (CBA) and $3.03 million against CommSec for systemic underpayments valued at $16 million affecting more than 7402 employees over five years.
CBA and CommSec admitted multiple breaches of the Fair Work Act:
- failing to ensure employees were better off overall under their individual flexibility arrangement than they would have been under the applicable enterprise agreement;
- failing to pay full entitlements under applicable enterprise agreements; and
- misrepresenting to employees that they would be better off overall under individual flexibility arrangements when this was not the case.
The respondents were also found guilty of serious contraventions under section 557A of the Fair Work Act 2009 (Cth) due to a systematic pattern of conduct affecting a substantial number of employees over several years.
Right to disconnect set to become law
Date: 15 February 2024
Source: Parliament of Australia
The House has passed the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 (the Bill), after it accepted the amendments contained in the version of the Bill sent back by the Senate last week. The Bill is yet to receive Royal Assent, however, once this occurs, employers and employees will have six months to familiarise themselves with the Right to Disconnect, before it is operational.
For the full text of the Bill, click here.
Right to disconnect
The Right to Disconnect will be located in Division 6 of Part 2-9 of the Fair Work Act 2009 (Cth) (FW Act), along with other terms and conditions of employment such as the prohibition on pay secrecy clauses in employment contracts and the limitation on the use of fixed term contracts.
One commencement, employees will have the right to refuse to monitor, read or respond to contact (or attempted contact) from their employer, where the contact is outside of the employee’s working hours, unless the employee’s refusal is unreasonable.
Fair Work Commission Rules 2024 available for comment
Date: 13 February 2024
Source: President’s statement — Exposure draft of the Fair Work Commission Rules 2024 – opportunity to comment
The Exposure draft of the Fair Work Commission Rules 2024 has been published and is available for comment.
When finalised, the new Rules will replace the present procedural rules of the Commission, the Fair Work Commission Rules 2013, which are due to sunset on 1 April 2024: see the Explanatory Note – Exposure draft — Fair Work Commission Rules 2024.
Interested persons may comment upon the exposure draft of the new Rules by 4:00pm AEDT on Friday, 23 February 2023.
Closing Loopholes No. 2 passes House, with changes to casual conversion and the definition of employment set to become law
Date: 12 February 2024
Source: Parliament of Australia
Abstract:
The House has passed the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 (the Bill), after it accepted the amendments contained in the version of the Bill sent back by the Senate last week. The amendments are detailed in the Supplementary Explanatory Memorandum circulated by the Honourable Tony Burke, Minister for Employment and Workplace Relations.
Among the changes set to become law are a streamlined process for casual conversion at the initiative of the employee and changes to the definition of ‘employment’ that will see the reintroduction, in some form, of the multi-factorial test for determining whether there is an employee-employer relationship.
The Bill also seeks to regulate the gig economy to ensure the rights of gig platform workers don’t ‘fall off a cliff’, according to Minister Burke, once they are deemed contractors rather than employees.
Closing Loopholes No. 2 passes Senate with amendments
Date: 8 February 2024
Source: Parliament of Australia
The Senate has passed the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 (the Bill), with the Greens, the Jackie Lambie Network and independent Senators David Pocock and Lidia Thorpe joining with the Government to vote in support of the Bill, which contained a number of key amendments. The amendments are detailed in the Supplementary Explanatory Memorandum circulated by the Minister for Employment and Workplace Relations.
The Bill will now be returned to the House of Representatives.
Amendments introduced by Government
Among the amendments detailed in the Supplementary Explanatory Memorandum, are:
- changes to the commencement date for amendments that would:
- extend the concept of workplace delegates rights to regulated workers;
- alter the definition of employment; and
- establish minimum standards for regulated workers,
from 1 July 2024 to a date that is six months after Royal Assent (or earlier by proclamation)
- a proposal to insert a new public interest test as a prerequisite for the Fair Work Commission’s registration of a collective agreement (or variation of a collective agreement) for regulated workers; and
.
What is an agreed term for an intractable bargaining workplace determination? (United Firefighters v FRV)
Date: 6 February 2024
Court: Fair Work Commission
Judge(s): Millhouse DP, Bell DP and Allison C
Judgment date: 5 February 2024
Catchwords: Factual matter of agreement — objective assessment is necessary — time of assessing agreement — bargaining representatives must agree
Abstract:
In United Firefighters’ Union of Australia v Fire Rescue Victoria T/A FRV [2024] FWCFB 43, a Full Bench of the Fair Work Commission (FWC) dealt with how to identify an “agreed term” for an intractable bargaining workplace determination.
Background
In United Firefighters’ Union of Australia v Fire Rescue Victoria [2023] FWCFB 180; BC202314046, a Full Bench of the FWC made the first intractable bargaining declaration under s 235 of the Fair Work Act 2009 (Cth) (FW Act) — see Latest Legal Update: First intractable bargaining declaration (United Firefighters v Fire Rescue Victoria). The order specified a post-declaration negotiating period of 4–18 October 2023. The matter remained unresolved at the end of that period. As no order for a further post-declaration negotiating period was made, the FWC was required to make an intractable bargaining workplace determination as quickly as possible under s 269 of the FW Act.
Senate releases report on Closing Loopholes No. 2 Bill, recommends that Bill be passed with amendments
Date: 1 February 2024
Source: Parliament of Australia
Abstract:
The Senate Standing Committees on Education and Employment has released its report on the provisions of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 (the Bill), with the report recommending the Bill be passed with amendments. The Coalition Senators and Jacqui Lambie Network issued dissenting reports, in which they expressed their concerns about the scope of the amendments, while the Australian Greens and Senator David Pocock provided additional recommendations regarding the contents of the Bill.
The Report
The Senate released its report on the second part of the Government’s proposed amendments to the Fair Work Act 2009 (Cth) (FW Act), following the passage of the Fair Work Legislation Amendments (Closing Loopholes) Act 2023 in December 2023.
The report is the result of extensive public consultation on the provisions of the Bill, in which 178 submissions were received and seven public hearings were held around the country.
The report recommended that the Bill be passed with a number of amendments.
No dismissal at end of series of maximum term contracts (Alouani-Roby v NRL)
Date: 1 February 2024
Court: Federal Court of Australia
Judge(s): Raper J
Judgment date: 18 January 2024
Catchwords: Application for judicial review — expiry of last contract — employer did not terminate — employee was not dismissed
Abstract:
In Alouani-Roby v National Rugby League Ltd[2024] FCA 12, Raper J of the Federal Court of Australia dismissed an application for judicial review of a decision of a Full Bench of the Fair Work Commission (FWC). The Full Bench had upheld the decision of a Deputy President of the FWC that the applicant (Mr Alouani-Roby) was not dismissed by the respondent (NRL) within the meaning of s 386(1)(a) of the Fair Work Act 2009 (Cth) (FW Act) when his final maximum term contract expired.
Background
Mr Alouani-Roby was employed by the NRL as a Tier 4 Referee pursuant to a series of five maximum term contracts during the period 25 March 2016 to 30 November 2020. Mr Alouani-Roby claimed in an application made under s 365 of the FW Act that the NRL dismissed him when the term of his final contract expired.
Fair Work Commission establishes Paid Agents Working Group following President’s criticism of advocate in general protections matter
Date: 30 January 2024
Source: Fair Work Commission
The Fair Work Commission has established a Paid Agents Working Group for the purpose of identifying and implementing standards of conduct for paid agents appearing before the FWC. The announcement of the establishment of the working group comes less than a week after President Hatcher issued a blistering criticism of a paid agent’s conduct in a general protections matter.
Background
Persons with a matter before the FWC may be represented by a lawyer or paid agent, subject to the necessary permission being granted by the FWC, under s 596 of the Fair Work Act 2009 (Cth).
While lawyers are subject to regulation in respect of their qualifications, ability to practice, conduct as representatives and dealings with client money, there are no such regulations on the qualifications and/or conduct of paid agents.
Paid agents have, from time to time, been criticised for their conduct in matters before the FWC.
Fair Work Commission President issues statement on the inclusion of delegates’ rights in awards
Date: 22 January 2024
Source: Fair Work Commission
Abstract:
The President of the Fair Work Commission (FWC), Justice Hatcher, has issued a statement regarding the variation of modern awards to incorporate the inclusion of a delegates’ rights term. The statement, which includes a proposed timeframe for consultation on the term, will give effect to Part 7 of the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) (the Closing Loopholes Act), which received royal assent on 14 December 2023.
Development of the model term
Among the provisions of Part 7 of the Closing Loopholes Act is a requirement that all modern awards contain a ‘delegates’ rights term’ from 1 July 2024.
Under s 350C of the Fair Work Act 2009 (Cth), delegates’ rights included:
- an entitlement to reasonable communication with the members of the employee organisation (or persons eligible to be members of the employee organisation) whose industrial interests the delegate is entitled to represent: s 350C(3)(a);
- a right to reasonable access to the workplace, for the purpose of representing those interests: s 350C(3)(b)(i); and
Safe Work Australia publishes new Model Code of Practice on sexual and gender-based harassment
Date: 11 January 2024
Source: Safe Work Australia
Abstract:
Safe Work Australia (SWA) has published a new Model Code of Practice on sexual and gender-based harassment, that is designed to assist persons conduct a business or undertaking (PCBU) in achieving the standards of health, safety and welfare required under the model workplace health and safety laws, while also discharging the positive duty to prevent sexual harassment under the Sex Discrimination Act 1984 (Cth) (SDA).
While the code acknowledges the similarities between the duties of a PCBU under workplace health and safety laws and the obligations under the SDA, it also reiterates that:
- the legislative requirements are ultimately different; and
- achieving compliance with SDA requirements will not necessarily ensure compliance with WHS legislation, and vice versa.
The Code
The model code describes sexual and gender-based harassment as a ‘pervasive hazard occurring across all industries’ and reiterates that the risk of such conduct can be present in any workplace.
Against that backdrop, the code prescribes a four-step approach to addressing such risks, as follows:
- identify the hazards;
- assess the risks;
Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) has received Royal Assent
Date: 18 December 2023
Source: Parliament of Australia
Jurisdiction: Commonwealth
Abstract:
On 7 December 2023, an amended version of the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth) (Closing Loopholes Bill) passed both houses of Parliament following an unexpected deal between the Labor Government, the Greens and various crossbenchers.
On 14 December 2023, the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) (Act) received Royal Assent and certain measures under the Act have now commenced operation.
See our related Latest Legal Update: Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 passes Senate in part.
On 15 December 2023, the following measures under the Act came into effect:
- excluding operation of the small business redundancy exemption where a larger business downsizes due to insolvency;
- closing the labour hire loophole, by allowing employees and employee organisations to apply to the Fair Work Commission for a regulated labour hire arrangement order requiring labour hire providers to pay their employees no less than under the host business’ enterprise agreements;
- new workplace delegate rights (although the requirement to include workplace delegates’ rights terms in modern awards, workplace determinations and enterprise agreements will only apply from 1 July 2024);
No bullying element to alleged abuse, yelling, belittling conduct (Egan)
Date: 14 December 2023
Court: Fair Work Commission
Judge(s): Deputy President Easton
Judgment date: 8 December 2023
Catchwords: Stop bullying order application — elements to be satisfied — objective assessment of elements— tone and context important
Abstract:
In Zoran Momirovski, Anthony Douglas, Roberto Serafini, Peter Naumcevski, Matthew Egan [2023] FWC 3299 (Application by Egan), Deputy President Easton of the Fair Work Commission (FWC) dismissed applications for stop bullying orders against the applicants’ supervisor. Applying an objective assessment of the elements required to be satisfied for the making of a stop-bullying order, the alleged abuse, yelling, belittling conduct by the supervisor over a period of five years was held to not be repeated unreasonable behaviour but reasonable management action carried out in a reasonable manner.
Background
The applicants performed cartage services from a FedEx station. Each of them applied for a stop-bullying order against FedEx and its AM Shift Supervisor, Mr Graeme Bradley. They relied on approximately 50 incidents of alleged bullying by Mr Bradley dating back to 2017.
Decision
The Deputy President observed —
New AHRC powers regarding positive duty come into effect
Date: 13 December 2023
Source: Australian Human Rights Commission
The Australian Human Rights Commission (AHRC) has released its Compliance and Enforcement Policy in regard to its use of new powers to ensure compliance with s 47 of the Sex Discrimination Act 1984 (Cth), which commenced on 13 December 2023.
Under its new powers, the AHCR is able to conduct enquiries in cases where it “reasonably suspects" that an organisation or business is not complying with the positive duty on employers and persons conducting a business or undertaking to take reasonable and proportionate measures to eliminate, as far as possible, certain discriminatory conduct including unlawful sexual harassment — see our Latest Legal Update: Reminder: New Australian Human Rights Commission powers in relation to sexual harassment come into force on 13 December 2023.
In the Policy, the AHRC states that it is mindful of the need to ease the overall burden on individuals by proactively initiating action to address relevant unlawful conduct, rather than relying on individuals to bring complaints.
The AHRC also states that it will not able "to pursue all matters that come to its attention", and it will be "selective in its compliance and enforcement activities".
Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 passes Senate in part
Date: 8 December 2023
Source: Parliament of Australia
Jurisdiction: Commonwealth
Abstract:
On 7 December 2023, an amended version of the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth) (Closing Loopholes Bill) passed both houses of Parliament following an unexpected deal between the Labor Government, the Greens and various crossbenchers.
These crossbenchers included David Pocock and Jacquie whose private senators bills stalled in the House of Representatives — see our Latest Legal Update: Closing Loopholes Bill — Crossbenchers successfully pass four private senators single issue bills in the Senate.
The following measures were approved, with some commencing as soon as the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) receives royal assent:
- excluding operation of the small business redundancy exemption where a larger business downsizes due to insolvency;
- closing the labour hire loophole, by allowing employees and employee organisations to apply to the Fair Work Commission for a regulated labour hire arrangement order requiring labour hire providers to pay their employees no less than under the host business’ enterprise agreements;
- new workplace delegate rights;
- strengthening protections against discrimination including by prohibiting adverse action on the basis of an individual being affected by family and domestic violence;
Zombie agreements officially sunset
Date: 7 December 2023
Source: Fair Work Commission
As we reported in a previous Latest Legal Update, ‘FWC releases ‘Zombie agreements' interactive checklist and fact sheet’, on 7 December 2023, certain agreements made before 2010 that were still in operation (‘zombie agreements’) automatically terminated unless an application was made to the Fair Work Commission (FWC) prior to 7 December 2023 to extend their operation.
Parties who were covered by a zombie agreement should check what legal minimum conditions now apply under an applicable award or enterprise agreement.
Read the FWC’s full media release here.
Employer fails to establish risk of impairment at work from positive cocaine test (Goodsell v Sydney Trains)
Date: 6 December 2023
Court: Fair Work Commission
Judge(s): Easton DP
Judgment Date: 4 December 2023
Catchwords: Positive test for cocaine — valid reason for dismissal — no risk of impairment – dismissal unfair in circumstances
Abstract:
Background
In Reece Goodsell v Sydney Trains [2023] FWC 3209, Easton DP of the Fair Work Commission reinstated the applicant (Mr Goodsell) who had been dismissed by his employer, Sydney Trains, for testing positive to a cocaine metabolite after returning to work from leave. Easton DP held in effect that Sydney Trains failed to establish a risk of impairment at work simply because of the positive drug test.
Mr Goodsell returned to work on Saturday, 4 June 2022 after taking an RDO on Friday, 3 June 2022. Four days before, Mr Goodsell had a night out with friends and tried some cocaine. He said, “given I was on annual leave and not due back to work until Saturday, 4 June 2022, I believed by that time it would have been out of my system”.
FWC can now deal with disputes relating to fixed term contracts
Date: 6 December 2023
Source: Fair Work Commission
New limits on the use of fixed term contracts came into effect from 6 December 2023.
If an employee and employer are in dispute about a fixed term contract, and they are unable to resolve the issue, the Fair Work Commission may be able to deal with the dispute including by mediation, conciliation or consent arbitration.
To apply for the Fair Work Commission to deal with the dispute about a fixed term contract, a party may use the appropriate form:
- Form F10DA – Application for the Commission to deal with a dispute about fixed term contracts
- Form F10DB – Notification of agreement to arbitration of a dispute about fixed term contracts
Further, under these changes, employers must provide any employees under a fixed term contract with a copy of the Fixed Term Contract Information Statement upon entering into the contract.
Reminder: Changes to employee authorised deductions come into force on 30 December 2023
Date: 1 December 2023
Source: Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 (Cth)
The Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 (Cth) (PWE Act) received royal assent on 30 June 2023.
See our Latest Legal Updates: Senate passes Protecting Worker Entitlements Bill 2023 and Protecting Worker Entitlements Act receives Royal Assent.
Schedule 5 of the PWE Act introduces changes relevant to payroll deductions that will take effect from 30 December 2023. As a result, certain payroll deductions for authorised purposes will become an easier process for both employers and employees.
What are the current requirements for deductions?
Under the current form of s 324 of the Fair Work Act 2009 (Cth), employees must provide employers with a new written authority on each occasion when the amount of an authorised deduction varies. This creates an administrative burden for employers.
What will change?
Schedule 5 of the PWE Act amends s 342 of the Fair Work Act 2009 (Cth) to expand the circumstances in which employees can authorise employers to make valid deductions from payments due to employees (and only where the deductions are principally for the employee’s benefit).
South Australia passes industrial manslaughter laws
Date: 1 December 2023
Source: South Australia Government
The Work Health and Safety (Industrial Manslaughter) Amendment Bill 2023 (SA) has passed both Houses of Parliament in South Australia.
It introduces a new criminal offence of industrial manslaughter under the Work Health and Safety Act 2012 (SA). It will apply to reckless or grossly negligent conduct that breaches a health and safety duty and results in the death of another person. The offence carries a maximum penalty of 20 years' imprisonment for individuals and a maximum fine of $18 million for companies.
The offence will come into operation on a day yet to be fixed.
New South Wales, the Commonwealth and Tasmania are the only Australian jurisdictions that have not passed a specific industrial manslaughter offence.
Read the Bill here.
Full Bench confirms denial of access to non-member records by SDA (SDA v ALDI Foods)
Date: 28 November 2023
Court: Fair Work Commission, Full Bench
Judge(s): Catanzariti VP, Saunders DP, Cross DP
Judgment Date: 28 November 2023
Catchwords: Suspicion of alleged contravention — access to non-member records — access was not “necessary”— breadth of proposed order
In Shop, Distributive and Allied Employees’ Association v ALDI Foods Pty Ltd as General Partner of ALDI Stores (A Limited Partnership) t/a ALDI[2023] FWCFB 164, a Full Bench of the Fair Work Commission (FWC) dismissed an appeal from a decision of Deputy President Dean refusing an application under s 483AA(1) of the Fair Work Act 2009 (Cth) (FW Act) for access to non-member records. The Full Bench confirmed that such an application will not be granted unless the applicant can satisfy the Fair Work Commission (FWC) on evidence that the access sought is necessary for the proper investigation of the suspected contravention.
Update on modern awards review
Date: 23 November 2023
Source: Fair Work Commission
In our previous Latest Legal Update: Confirmation of new modern award review timetable, we reported on the confirmation of the timetable for the new modern award review.
In Statement, Modern Awards Review 2023-24 [2023] FWCFB 218, a Full Bench of the Fair Work Commission confirmed the allocation of issues as follows:
- Arts and culture sector – Deputy President Millhouse
- Job security – Deputy President Gostencnik and Commissioner Tran
- Work and care – Deputy President O’Neill
- Making awards easier to use – Justice Hatcher
Also announced, the Commission has engaged Western Sydney University to conduct a literature review and produce a report to support the work and care stream of the review. As part of the review, the Commission will be conducting a survey of employers to gather information about variations to modern award provisions that may assist in offering greater flexibility to employees in balancing work and care.
Omnibus Closing Loopholes Bill heads to the Senate
Date: 20 November 2023
Source: Closing Loopholes Bill passes the House of Representatives
Abstract:
On 29 November 2023, the House of Representatives passed the Government’s omnibus Fair Work Legislation Amendment (Closing Loopholes) Bill 2023, which will now head to the Senate for its consideration.
The Government has adopted a range of amendments including —
- Excluding service contracting from being characterised as labour hire by the Fair Work Commission (FWC)
- Clarifying that an employee who works a regular pattern of work can be a causal employee if there is no firm advance commitment to continuing and indefinite work
- Clarifying how the FWC should take into account the unique nature of digital platform work when establishing minimum standards for gig workers
- Establishing a Family and Injured Workers Advisory Committee to provide advice to the Minister and Commonwealth WHS regulators on the support needs of those affected by a serious workplace incident and to help inform the development of relevant policies and strategies.
First SJBP Act flexible working arrangements decision (Quirke v BSR Australia)
Date: 16 November 2023
Court: Fair Work Commission, Full Bench
Judge(s): Hatcher P, Asbury DP, Durham C
Judgment date: 10 November 2023
Catchwords: Flexible working arrangements application — employer refused employee’s request — request not validly made — no dispute for arbitration
Abstract:
Jordan Quirke v BSR Australia Ltd [2023] FWCFB 209 is the first decision of a Full Bench of the Fair Work Commission (FWC) concerning the provisions of the Fair Work Act 2009 (Cth) (FW Act) concerning requests for flexible working arrangements as amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (SJBP Act). The Full Bench’s decision provides guidance on what constitutes a valid request for a flexible working arrangement under s 65(1) of the FW Act and the meaning of the word ‘disability’ in s 65(1A)(c).
Background
Ms Quirke contended initially that she made a written request by email on 5 April 2023 for a change in her working hours as a part-time Customer Experience Coordinator employed by the respondent for reason that she had a disability. As noted by the Full Bench, the email, which was sent to Mr Friend (HR manager), made no reference to Ms Quirke having a disability and she received no written response to it.
Protection from adverse costs orders for federal unlawful discrimination court applicants: Australian Human Rights Commission Amendment (Costs Protection) Bill 2023
Date: 15 November 2023
Source: Parliament of Australia
Abstract:
The Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 (Cth) (Costs Protection Bill) was introduced into the Federal Parliament on 15 November 2023 in response to the Respect@Work report’s recommendation 25.
Recommendation 25 was that the Government insert into the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) a provision equivalent to the Fair Work Act's s 570 (costs only if proceedings are initiated vexatiously etc).
Sch 1 item 3 of the Costs Protection Bill will insert a new s 46PSA(2) and (3) into the AHRC Act to allow a court to order each respondent to an application under s 46PO of the AHRC Act to pay a successful applicant’s costs on an indemnity basis or otherwise. The exception to this will be that the court will not have to order a respondent to pay the costs of an unreasonable act or omission of the applicant that caused the applicant to incur those costs: see the proposed new s 46PSA(4) of the AHRC Act.
Generally, the applicant must not be ordered to pay another party’s costs: see the proposed new s 46PSA(5) of the AHRC Act.
Closing Loopholes Bill - Crossbenchers successfully pass four private senators single issue bills in the Senate
Date: 13 November 2023
Source: Parliament of Australia
Jurisdiction: Commonwealth
Abstract:
On 6 November 2023, key crossbenchers David Pocock and Jacquie Lambie tabled four private senators’ bills into parliament (Private Bills) that extract certain measures under the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth) (Closing Loopholes Bill).
See our Latest Legal Update: Closing Loopholes Bill 2023 introduced into Parliament.
The Private Bills split the Closing Loopholes Bill to expedite additional protections for workers by:
- improving access to workers’ compensation for first responders in the Commonwealth and ACT jurisdictions with post-traumatic stress disorder;
- expanding the remit of the Asbestos Safety Eradication Agency to deal with silica-related diseases;
- prohibiting discrimination against people who are subjected to family and domestic violence; and
- introducing an exception to the operation of the small business redundancy exemption where large businesses downsize before becoming insolvent to prevent employees missing out on redundancy payments.
On 9 November 2023, the Senate passed the changes. However, a final vote in the House of Representatives will determine the outcome of the crossbenchers’ proposed approach and the Private Bills.
Redundancy and insolvency - The Fair Work Legislation Amendment (Small Business Redundancy Exemption) Bill 2023 introduced to Parliament
Date: 8 November 2023
Source: Parliament of Australia
On 6 November 2023, the Fair Work Legislation Amendment (Small Business Redundancy Exemption) Bill 2023 (the Bill) was introduced to Parliament. The Bill addresses the anomalous consequences of the small business redundancy exemption in insolvency contexts by providing an exception to its operation when a larger business downsizes to become a smaller business employer due to insolvency.
The Explanatory Memorandum states that the purpose of the Bill is to address an anomaly which arises in the pre-existing small business redundancy exemption. This anomaly causes some employees to lose their legal entitlement to redundancy pay under the National Employment Standards in the context of a business downsizing from a larger business to a smaller business due to insolvency.
The pre-existing small business redundancy exemption is a longstanding feature of the workplace relations framework under the Fair Work Act 2009. It encourages employment by small businesses by relieving them of National Employment Standards redundancy pay obligations, which can be a significant contingent cost of employing staff. To qualify for the exemption, businesses must employ fewer than 15 staff.
First conviction under Victorian health and safety laws for workplace sexual harassment
Date: 3 November 2023
Source: WorkSafe Victoria
A Victorian director and two hospital cafes have been convicted and fined a total of $290,000 in the Melbourne Magistrates’ Court in relation to sexual harassment in the workplace. All three defendants were convicted on charges of failing to ensure the workplace was safe and without risks to health.
Whitelom Investments Pty Ltd and Whitelom Pty Ltd were convicted and fined $110,000 and $140,000 respectively. The sole director and boss of both hospital cafes was convicted and fined $40,000.
WorkSafe Victoria commenced its investigation in in April 2021 following a complaint of sexual harassment by the sole director. The Melbourne Magistrates’ Court heard six workers, the youngest being 16 years old, were sexually harassed physically and verbally by their boss.
The Melbourne Magistrates’ Court heard submissions that it was reasonably practicable for the director not to sexually harass staff and for the associated companies to provide employees with an avenue for reporting incidents of sexual harassment, other than to the manager.
Demotion was injury in employment and caused a constructive dismissal (RPS v Lamb)
Date: 2 November 2023
Court: Federal Court of Australia
Judge(s): Raper J
Judgment date: 31 October 2023
Catchwords: Complaint made about employment — subsequent demotion an injury — demotion fell outside contract — demotion a constructive dismissal
Abstract:
In RPS AAP Consulting Pty Ltd v Lamb [2023] FCA 1310; BC202315534, Raper J of the Federal Court of Australia held that a demotion constituted an injury in employment within the meaning of s 342 item 1(b) of the Fair Work Act 2009 (Cth) (FW Act). The demotion was not authorised by the contract and, so, was repudiatory conduct by the employer that caused a constructive dismissal.
Background
Ms Lamb was employed in RPS’ consultancy business for over two years before her employment relationship and contract ended. She held the senior position of National Lead — Strategy and Transformation.
On 22 January 2020, Ms Lamb made a written complaint to her supervisor (Mr Stamatoudis) about his conduct. As characterised by Raper J, hers was a direct challenge to his managerial style and process – she called him out on his conduct. Ms Lamb expressed her belief that he was not in fact engaging with her about the matters that he should be as her supervisor.
Ex-employees entitled to backdated salary increases in enterprise agreement (Murtagh v Roman Catholic Diocese of Toowoomba)
Date: 31 October 2023
Court: Full Court of the Federal Court of Australia
Judge(s): Collier, Logan and Meagher JJ
Judgment date: 20 October 2023
Catchwords: Agreements approved after resignations — retrospective enterprise agreement provisions — increases backdated during employment — ex-employees entitled to increases
Abstract:
In Murtagh v Corporation of the Roman Catholic Diocese of Toowoomba [2023] FCAFC 172; BC202315381, a Full Court of the Federal Court of Australia held that ex-employees were entitled under an enterprise agreement to back pay and related superannuation contributions that commenced before they resigned.
Background
Until 6 and 31 December 2019, the first (Mr Murtagh) and second appellant (Mr O’Mara) were teachers who were employed by the Diocese.
The appellants were employed on 1 July 2019. On 25 November 2019, pursuant to s 186 of the Fair Work Act 2009 (Cth) (FW Act), the Fair Work Commission (FWC) approved two enterprise agreements that separately covered Mr Murtagh and Mr O’Mara.
Each agreement commenced on 2 December 2019. They provided for staged salary increases that, for teachers such as the appellants, were backdated to the first full pay period on or after 1 July 2019.
Employee’s failure to comply with employer’s deadline for receiving COVID-19 vaccine not repudiation of contract (Stace v Complete Office Supplies)
Date: 30 October 2023
Court: Fair Work Commission
Judge(s): Commissioner Schneider
Judgment date: 23 October 2023
Catchwords: Repudiation of employment contract — refusal to accept vaccination — inherent requirements of job — lawful and reasonable direction
Abstract:
In Stace v Complete Office Supplies/Complete Office Staffing Pty Ltd [2023] FCWC 2758; BC202315092, the Fair Work Commission (FWC) held that the applicant’s failure to receive the COVID-19 by a deadline imposed by the respondent was not repudiation of her contract of employment. Nor did the applicant’s failure mean that she was unable to perform the inherent requirements of the job or had failed to comply with a lawful and reasonable instruction.
Background
On 28 February 2022, the applicant was stood down by the respondent after she decided to not receive the COVID-19 vaccine.
On 18 July 2022, when she was still on stand down, the respondent wrote to the applicant to confirm that it was providing her one week to confirm if she would receive the vaccine or else it may have no choice but to accept the applicant’ repudiation of her contract of employment on the basis that she could no longer perform the inherent requirements of the position.
Procedural fairness denied when permission to appear granted to lawyer (Williams v KTC Refrigeration)
Date: 27 October 2023
Court: Fair Work Commission, Full Bench
Judge(s): Asbury VP, Masson DP, Bissett C
Judgment date: 25 October 2023
Catchwords: No notice of application — no opportunity to object — no notice of approach — insufficient evidence redeployment unreasonable
Abstract:
In Nicholas Williams v KTC Refrigeration & Air Conditioning Pty Ltd [2023] FWCFB 194, a Full Bench of the Fair Work Commission (FWC) held that a self-represented applicant was denied procedural fairness when the FWC granted permission to a lawyer (Mr Mola) to represent the respondent.
Background
The appellant applied to the Fair Work Commission (FWC) asserting an unfair dismissal. The respondent objected that it was a case of genuine redundancy withing the meaning of s 389 of the Fair Work Act 2009 (Cth) (FW Act).
Deputy President (DP) Boyce of the FWC issued Directions listing the respondent’s objection for hearing by telephone. Notwithstanding that Mr Mola signed the respondent’s Form F3 response and (as inferred by the Full Bench) also prepared the submission attached to it, neither he nor the respondent filed and served notice in accordance with the Directions that he was commencing to act for the Respondent.
FWC releases ‘Zombie agreements' interactive checklist and fact sheet
Date: 27 October 2023
Source: Fair Work Commission
As we reported in a previous Latest Legal Update, ‘Reminder: 2 months until sunsetting of ‘zombie agreements’’, on 7 December 2023, certain agreements made before 2010 that are still in operation (‘zombie agreements’) will automatically terminate unless an application is made to the Fair Work Commission (FWC) before 7 December 2023 to extend their operation.
To aid both employers and employees in determining if they have a ‘zombie agreement’, the FWC has released an interactive checklist and a fact sheet. These tools also answer frequently asked questions including what zombie agreements are and what changes are being made.
Read the FWC’s full media release and access the interactive checklist and fact sheet here.
Industrial manslaughter laws to be introduced in NSW
Date: 19 October 2023
Source: NSW Government
On 19 October 2023, the NSW Minister for Work Health and Safety announced that the NSW Government will introduce industrial manslaughter legislation into parliament next year.
Almost all Australian jurisdictions have criminalised industrial manslaughter through a specific industrial manslaughter offence. Under these offences, a person conducting a business or undertaking, or an officer, may be subject to financial penalties and/or imprisonment for breach of a health and safety duty that causes death.
NSW is one of three Australian jurisdictions without a specific industrial manslaughter offence or relevant bill before parliament (the other jurisdictions being the Commonwealth and Tasmania).
The NSW Government will formally begin the consultation process with stakeholders over the coming weeks and has indicated it intends to introduce a bill to parliament in the first half 2024.
Read the ministerial media release here.
Federal Parliament introduces Paid Parental Leave Amendment (More Support for Working Families) Bill 2023
Date: 19 October 2023
Source: Parliament of Australia
Jurisdiction: Commonwealth
Abstract:
On 19 October 2023, the Federal Parliament tabled the Paid Parental Leave Amendment (More Support for Working Families) Bill 2023 (Cth) (the Bill) to extend the Paid Parental Leave scheme.
The Bill implements the second tranche of changes to the Paid Parental Leave scheme announced by the Labor Government.
Extending parental leave pay to 26 weeks
Currently, parents may claim up to 20 weeks (100 days) of parental leave pay in the period starting from the day the child is born and ending on the day before the child’s second birthday or anniversary of care.
The amendments under the Bill will extend the Paid Parental Leave scheme by 2 weeks each year from 1 July 2024 to reach 26 weeks from 1 July 2026.
Extending the reserved period
Reserving a portion of Paid Parental Leave for each parent is intended to encourage both parents to take time off work after the birth or adoption of a child.
Principles applicable to extension of time to make a general protections court application (Gabriel v Titan Recruitment)
Date: 19 October 2023
Court: Federal Court of Australia
Judge(s): McElwaine J
Judgment date: 18 October 2023
Catchwords: Late application — inadequate explanation for delay
Abstract:
In Gabriel v Titan Recruitment Pty Ltd [2023] FCA 1243, McElwaine J of the Federal Court of Australia dismissed an application for an extension of time to make a general protections court application. The application was made 70 days out of time.
Background:
The applicant alleged that he had been dismissed from his employment. Titan Recruitment Pty Ltd accepted that it was the employer.
The applicant alleged that the dismissal was in contravention of the general protections provisions in Pt 3-1 of the Fair Work Act 2009 (Cth) (FW Act). He applied to the Fair Work Commission (FWC) under s 365 to deal with a dismissal dispute.
The applicant alleged that he had been dismissed in contravention of s 340 of the FW Act by exercising workplace rights after being subject to unlawful bullying and harassment.
In the context of directions hearing, orders should be prepared and distributed to each affected party at least a day in advance of the hearing.
Victorian Supreme Court finds post-employment restraints to be unreasonable and unenforceable (2nd Chapter Pty Ltd v Sealey)
Date: 18 October 2023
Court: Supreme Court of Victoria
Judge(s): Waller J
Judgement date: 10 October 2023
Catchwords: Post-employment restraints – Wealth management industry — Interlocutory injunction application refused
Abstract:
In 2nd Chapter Pty Ltd v Sealey [2023] VSC 599, the Victorian Supreme Court denied an application for an interlocutory injunction and found that the restraint of trade clauses in two financial advisers' employment contracts were unenforceable.
Background:
The respondent, a financial advisory and wealth management company, applied for an interlocutory injunction restraining two former employees from engaging in any business in the wealth management industry, soliciting its clients, or interfering in its relationship with its customers.
Both financial advisers had resigned from the respondent to work for a competitor. Their employment agreements with the respondent contained a covenant in restraint of trade, which the respondent sought to enforce as part of the application for the interlocutory injunction.
Decision:
Justice Waller found that the post-employment restraints contained in the financial advisers’ employment agreements were unenforceable because they were not reasonable. The restraints were not reasonable because:
Termination of enterprise instruments
Date: 12 October 2023
Source: Fair Work Commission
The Fair Work Commission (FWC) has released a Statement - Termination of enterprise instruments [2023] FWC 2633.
Justice Hatcher, President of the FWC, noted that —
- An enterprise instrument is an enterprise award based instrument, an enterprise preserved collective State agreement, or a Div 2B enterprise award.
- A ‘modernisable instrument’ is an award-based transitional instrument, a transitional Australian Pay and Classification Scale or a Div 2B State award.
- Sch 6, item 9(5) of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act) requires the FWC to terminate any remaining ‘modernisable instruments’ after all modern enterprise awards made in the enterprise instrument modernisation process have come into operation.
The President expressed the provisional view that, as the employees covered by it are now covered by a modern award, the application made by Australian Manufacturing Workers’ Union for a modern award to replace the CHC Helicopters (Aircrew/Rescue Crew) Award 2002 be dismissed; further, the Award and the 51 modernisable instruments set out in Attachment A to the Statement are required to be terminated under Sch 6 item 9(5) of the Transitional Act
Unfair dismissal given conflicting medical evidence of inability to perform inherent requirements (Latham v Illawarra Coal)
Date: 11 October 2023
Court: Fair Work Commission
Judge(s): Commissioner P Ryan
Judgment date: 26 September 2023
Catchwords: Dismissal related to capacity
Abstract:
In Latham v Illawarra Coal Holdings Pty Ltd [2023] FWC 2483; BC202313749, the Fair Work Commission (FWC) rejected the respondent’s medical evidence that the employee was unable to perform the inherent requirements of the roles.
Background:
The applicant applied to the FWC under s 394 of the Fair Work Act 2009 (Cth) for a remedy, alleging unfair dismissal from his employment with the respondent as a Deputy.
The respondent’s reason for dismissing the applicant was that, after he had a laminectomy, he could not perform the inherent requirements of his role at that time and into the foreseeable future, and there were no suitable alternative duties or redeployment opportunities.
The respondent based its view on medical reports of its occupational physician (Dr Home). He examined the applicant and, considering various matters including information provided by the respondent about the inherent requirement of the applicant’s role and the workplace, advised that the applicant was unable to perform the inherent requirements of his role.
Reminder: 2 months until sunsetting of ‘zombie agreements’
Date: 9 October 2023
Source: Fair Work Commission
The Fair Work Commission (FWC) has issued another reminder about sunsetting of ‘zombie agreements.’ We reported on its last reminder here.
This most recent reminder reiterates that on 7 December 2023, certain agreements made prior to 2010 that are still in place will be automatically terminated unless an application is made to the FWC before then to extend their operation.
Read the FWC’s full Reminder here.
Confirmation of new modern award review timetable
Date: 6 October 2023
Source: Fair Work Commission
In our previous Latest Legal Update: Draft timetable for new modern award review, we reported on the draft timetable for the new modern award review.
In Statement, Modern Awards Review 2023-24 [2023] FWCFB 179, a Full Bench of the Fair Work Commission confirmed the timetable for the review, which will consider updating job security provisions, addressing work and care issues and consider coverage of the arts and culture sector in seven awards, as well as making awards easier to read.
Notably, extra time has been allocated for consultation with parties about making awards easier to read.
The final report date remains on or about 28 June 2024.
Read the full Statement, Modern Awards Review 2023-24 [2023] FWCFB 179 here.
First intractable bargaining declaration (United Firefighters v Fire Rescue Victoria)
Date: 5 October 2023
Court: Fair Work Commission, Full Bench
Judge(s): Hatcher P, Asbury VP, Hampton DP
Judgment date: 4 October 2023
Catchwords: Fair Work Act 2009 — intractable bargaining
Abstract:
In United Firefighters’ Union of Australia v Fire Rescue Victoria [2023] FWCFB 180, a Full Bench of the Fair Work Commission (FWC) made an intractable bargaining declaration (IBD). It is the first one made under s 235 of the Fair Work Act 2009 (Cth) (FW Act) following amendments made by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (SJBP Act), effective from 6 June 2023.
Background:
The SJBP Act repealed the former serious breach declaration provisions of the FW Act and replaced them with a new scheme relating to IBDs: see Pt 2-4, Div 8, Subdiv B of the FW Act. On 28 July 2023, the applicant applied for an IBD under s 234 of the FW Act.
Decision:
In summary, the Full Bench noted as follows in relation to the relevant provisions of the FW Act.
The FWC has a discretionary power to make an IBD if each of the preconditions described in s 235(1)(a)-(c) is met.
Fair Work Act protective costs provision not a barrier to production of documents (Dove v Everforex)
Date: 4 October 2023
Court: Federal Court of Australia
Judge(s): Goodman J
Judgment date: 3 October 2023
Catchwords: Notices to produce — security for costs application — s 570, Fair Work Act — production ordered
Abstract:
In Dove v Everforex Financial Pty Ltd [2023] FCA 1171, Goodman J in the Federal Court of Australia refused an application to set aside Notices to Produce relevant to a security for costs application despite the potential operation of the protective costs provision in s 570 of the Fair Work Act 2009 (Cth) (FW Act).
Background:
Everforex operated a foreign exchange, margin and CFD trading business in which it employed Mr Dove as its CEO from about January 2019 until about February 2020. In October 2020, Mr Dove commenced proceedings in the (then) Federal Circuit Court of Australia claiming, among other things, that Everforex contravened various provisions of the Fair Work Act 2009 (Cth) (FW Act).
Everforex cross-claimed against Mr Dove. Everforex’s claims in a Further Amended Statement of Cross-Claim (FASCC) included that he contravened various statutory duties owed to Everforex.
Failure to accommodate employee’s breastfeeding needs resulted in indirect discrimination (Complainant 202258 v Southern Restaurants (Vic) Pty Ltd)
Date: 29 September 2023
Court: ACT Civil and Administrative Tribunal
Judge(s): Presidential Member H Robinson and Senior Member L Drake
Judgment date: 25 September 2023
Catchwords: Indirect discrimination – protected attribute – breastfeeding – workplace condition of employment - reasonableness of employment condition
Abstract:
In Complainant 202258 v Southern Restaurants (Vic) Pty Ltd (Discrimination) [2023] ACAT 57; BC202313613, the ACT Civil and Administrative Tribunal (ACAT) found that a breastfeeding mother had been subject to indirect discrimination in the first Australian anti-discrimination case concerning breastfeeding parents at work.
The applicant alleged that the respondent, her employer, indirectly discriminated against her in contravention of the Discrimination Act 1991 (ACT) by imposing a condition of employment that unreasonably disadvantaged her because she was breastfeeding.
Background:
The applicant was an assistant restaurant manager at various KFC stores. Prior to her return to work following a period of parental leave, the respondent informed the applicant that it could not provide a private room and comfortable chair for her to breastfeed because it was not practical and too costly.
FWC has no power to order that picketing stop (Inghams Enterprises Pty Limited v United Workers' Union)
Date: 3 October 2023
Court: Fair Work Commission
Judge(s): Deputy President Anderson
Judgement date: 26 September 2023
Catchwords: s 418, Fair Work Act – stop industrial action order — picketing not industrial action
Abstract:
In Inghams Enterprises Pty Limited v United Workers’ Union[2023] FWC 2488, the Fair Work Commission (FWC) refused an application by the employer, Inghams, for an order under s 418 of the Fair Work Act 2009 (Cth) (FW Act) to stop picketing of a work site. The FWC found that it had no power to make such an order because such action is not industrial action as defined in s 19 of the FW Act.
Background:
Workers at wholesale chicken supplier Inghams in Adelaide and Perth walked off the job and picketed processing plants. Inghams applied for a s 418 order to end the picket claiming that it was a blockade and, thus, unprotected industrial action.