Latest Employment Law Updates in Australia for 2024

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:

1. initial employee notification;
2. consultation; and
3. 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:

1. identify the hazards;
2. 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.