HR + Employment Law: Latest Alert – Edition 21 July 2019

by | Jul 29, 2019 | Employment Law and Workplace Relations Blog

Employment law and HR news for employers and HR professionals

Latest Decisions

Step Aside: FWC Member refuses to reallocate matter after Full Bench’s recommendation

Further to our June Alert (click here), the Full Bench in Construction, Forestry, Maritime, Mining and Energy Union v Watpac Construction Pty Ltd t/a Watpac Construction [2019] FWCFB 3855, encouraged Commissioner Hunt to step aside from arbitrating a matter which she was previously in conciliation proceedings regarding the same matter, and instead reallocate the matter to another member on the basis of ‘apprehended bias’.

Notwithstanding the Full Bench’s observations that it is in the public interest for the Commissioner to recuse herself from arbitrating the dispute, Commissioner Hunt, on 2 July 2019, has decided to forge ahead with arbitrating the matter.

The Commissioner disagreed with the Full Bench’s view and argued that if it was Parliament’s intention to adopt a ‘direct restriction’ as proposed by the Full Bench, then legislation would have been introduced to that effect, similar to the historic provision which was removed by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth).

Commissioner Hunt commented that it is inappropriate for a party to attach conditions on its willingness to participate in conciliation and she does not agree with parties being provided an avenue to potentially ‘member shop’ if there is a possibility that they may be subject to an adverse decision from a certain member.

She further commented that if the Commission were to adopt such a direct restriction contemplated by the Full Bench then that should be at the discretion of the President pursuant to the current powers conferred under s 582(2) of the Fair Work Act 2009 (Cth).

On 4 July 2019, the Commissioner again reiterated her position that she will continue to preside over the two applications before her.  To read the full decisions click here and here.

Fame and fortune do not guarantee compliance with employment laws

MasterChef’s judge George Calombaris and founder of hospitality giant MAdE Establishment Pty Ltd (MAdE) is facing increasing scrutiny from the Fair Work Ombudsman (FWO) regarding compliance with the Restaurant Industry Award (the Award).  In a recent announcement, the FWO confirmed that 515 current or former employees had been underpaid $7.8 million between 2011 and 2017 at various ritzy restaurants within the MAdE empire across Australia.

FWO inspectors found that:

  • some staff were incorrectly classified under the Award, particularly casual employees; and
  • annualised salary arrangements under the Award were erroneously applied for other staff.

MAdE has entered into an enforceable undertaking with the FWO, which amongst other things, provide that it will:

  • Publish a written public apology to all the employees affected by the underpayment which is to be published on mainstream media channels including industry magazines, social media and websites; and
  • Fund external auditors to confirm that employees are receiving the correct entitlements until 2022.

The FWO relevantly noted that this case should ‘service as a warning to all employers that if they don’t get workplace compliance right from the beginning, they can spend years cleaning up the mess’. To read the FWO’s statement including the enforceable undertaking, click here.

Wage theft will not be tolerated

Following the wake of underpayments exposed by the FWO’s investigation within various restaurants, the Attorney-General and IR Minister, Mr Porter, noted that the Government will continue to send a ‘strong and unambiguous message to those employers who think they can get away with the exploitation of vulnerable employees’.

Mr Porter indicated that the Government intends to legislate criminal sanctions and increased regulatory powers, as part of the Coalition’s plan to combat the increasing underpayments and exploitation of certain employees, particularly vulnerable workers.

Mr Porter noted that statutory changes will be finalised subject to consultations with relevant stakeholders ‘over coming months’. We look forward to providing further updates in due course as more information becomes available.