Workplace Relations Q2 update: wage theft, non-standard work, travel time, labour hire and a Merry Christmas!


Posted By and on 18/12/19 at 1:15 PM

IN THIS UPDATE:  with Woolworths in the spotlight the era of ‘wage theft’ continues, we have the latest non-standard work (labour hire and gig work) developments, we had an important industrial ruling on travel time, there is a labour hire licensing update for Victoria, news on the varied Modern Awards and some new FWC forms together with the latest on industrial manslaughter.

2019 is almost at an end and what a year it has been in the workplace relations and safety space!   We thought this list of issues would be the ones to be across as we head into the holiday season and begin getting ready to have the chance to recharge the batteries for 2020.


Latest on “wage theft” and underpayments

Following on from our Modern Awards and Underpayments breakfast seminar in October 2019, Woolworths is the latest large employer to find itself in hot water in the ‘wage theft’ era.  The supermarket giant recently self-disclosed to underpaying 5,700 salaried employees at its stores by up to $300 million, dating back to 2010.

In summary, the number of hours and when they were worked were not adequately factored into individual salary settings for a number of employees on annual salaries resulting in underpayments under the General Retail Industry Award. It is now a rapidly growing list of well-known corporates (Commonwealth Bank, Super Retail Group, Qantas, Michael Hill Jewellers and many others) that are almost weekly either making a self-disclosure or being pursued by the Fair Work Ombudsman.

As most of you would know, various legislative changes are currently being proposed (by all sides of government) to address ‘wage theft’, with the Morrison Government also flagging its intention to introduce up to 10 years’ imprisonment for very serious cases of systematic or deliberate underpayment.

With the Fair Work Commission set to introduce key changes to a number of modern awards containing “annualised salary” arrangements from 1 March 2020 (see our Q1 update for details), now is certainly the time to proactively address this issue by monitoring your compliance through internal or external audits (if you haven’t started this process already).

If you need any assistance with setting up and/or conducting self or external audits, or dealing with the FWO and/or ATO (in respect of superannuation), please get in touch.

Non-standard work (labour hire and gig work) developments

In a significant win for labour hire companies, the Federal Court has dismissed applications by both the FWO and the CFMMEU, which claimed that the relationship between a labour hire company, Personnel Contracting Pty Ltd t/as Construct, and its contractors was an employment relationship. In finding that the relationship was one of self-employed contractor and principal, Justice O’Callaghan held that a contractual right to exercise control was just as important as the actual exercise of control, and that in this case, the worker was free to reject work from the host (Hanssen) and had the ability to work for others.

While the workers in question were provided with tools and equipment – which was one factor that pointed towards an employment relationship – they were also not integrated into the labour hire company’s business. There were no office emails or branded business cards provided, and they were not invited to company functions. Importantly, Construct did not hold them out as an extension of their business.

Significantly, the Court rejected the CFMMEU’s submission that the running of a business is the essential hallmark of an independent contractor stating that this was only a non-binding statement from another decision made in obiter and was inconsistent with the multi-factorial assessment. Accordingly, the fact that the worker in question did not operate his own business was only one factor, amongst many, which weighed towards a finding that the worker was an employee.

The decision is a timely reminder that the process of appropriately classifying your contractor and non-standard working arrangements is not a “mere box-ticking exercise” but still requires a nuanced consideration of the way in which the parties have set up their relationship.

Here are the full decisions for those interested:

In another Uber case before the FWC, an Uber Eats delivery worker (the first to take on the gig economy giant in Australia with legal representation) is appealing the recent rejection of her unfair dismissal application by Commissioner Hampton on the basis that she was not an “employee” under the Fair Work Act 2009 (Cth). If the decision (which again largely turned on there being no obligation to accept work by logging on to the Uber App) is overturned on appeal, the case will have serious implications for gig economy businesses so we’ll be continuing to closely monitor this one.

The initial decision can be found here.

Important industrial ruling on travel time

In the recent significant decision of Sheehan v Thiess Pty Ltd [2019] FCA 1762 on 1 November 2019 the Federal Court held that under the terms of their enterprise agreement workers employed to work on the Wheatstone Project on a FIFO basis were entitled to be paid for the 20 minutes travel time from the crib huts to the security access gates at the perimeter of the site of the project.

In addition to interpreting the relevant clause in the enterprise agreement, the Court also noted that given the context of FIFO workers, there are “practical concerns that are peculiar to the nature of work that explain why there may be some inclusion of payment for the journey”. For instance, the fact they are reliant on their employer to provide transport for them to and from their accommodation.

Subsequent orders in this matter suggest that this decision may be appealed, so definitely another to watch out for in 2020.

See the full decision here.

Update – Victorian labour hire licensing

The six-month transition period for submitting an application for a Victorian Labour Hire Licence ended on 30 October 2019, with the authority receiving 3,841 applications.

If you missed the deadline, the good news is that the Victorian Labour Hire Licensing Authority has (in effect) extended the deadline. Specifically, the authority has announced that where a complete application is submitted before midnight on 31 December 2019, and there is no evidence of non-compliance, the authority will not take enforcement action against a provider for providing services without a licence, or a host who enters into an arrangement with that provider.

In terms of timeframes for assessing applications, the authority is unable to provide a time but has noted that the speed has been impacted because many applicants have not provided the required information. However, those applications lodged before 30 October 2019 will be prioritised.

The authority has also announced that amendments are being made to its website and search functionality. An additional feature currently being developed (and one that we think, practically, would be particularly useful) is the ability to allow hosts to register interest in the licence status of their providers so they are notified of any changes to the status of those licences.

Modern awards extensively varied and updated FWC forms published

Starting in 2020 and as part of the 4-yearly review of modern awards, the Fair Work Commission will extensively vary existing modern awards.

The technical and drafting matters for the first group of 31 modern awards has been completed. Those varied awards have been issued and will be effective from 4 February 2020.  To find out which awards have been varied, and to access the new versions of awards before they commence operation, click here.

Additionally, the FWC has recently published a number of new statutory declaration forms, including a new Form F17. The changes are targeted at making the forms easier to complete but time will tell on that front!


The latest on industrial manslaughter

A big ticket item in Victorian workplace safety rounding out the end of 2019, and which will continue to be a hot topic into 2020, is the Victorian Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019.  The Bill was passed in late November 2019 and will commence on 1 July 2020, unless proclaimed to commence earlier. This Bill provides for fines of up to 100,000 penalty units (currently equating to $16,522,000) for bodies corporate, and jail terms of up to 20 years for company officers, who negligently (as defined) cause a work related death to a worker or member of the public. Employees who are not officers will not be prosecuted under this new offence in the OHS Act. Coinciding with the passing of the Bill, the Victorian Government announced a $10 million package to boost WorkSafe Victoria’s ability to investigate and prosecute workplace manslaughter offences, including any attempts to destroy evidence or cover up safety failings after a fatality.

A prosecution was recently commenced under a similarly introduced offence in Queensland. It is critically important for businesses in 2020 to be aware of this development and particularly officers in smaller companies who are close to the business activities and manage day to day activities and safety.


We hope you have enjoyed our Q2 update, and please do not hesitate to contact us if you have any questions or would like to discuss these issues further.

We otherwise wish you all a safe, happy and healthy holiday season and we look forward to seeing you back in the trenches in 2020!!

This article was written by Gina Capasso (Principal Solicitor), Michael Cochrane (Principal Solicitor), and Chris Gianatti (Director). 

KHQ Lawyers - Michael Cochrane

Michael Cochrane Principal Solicitor

Michael draws on a wealth of industrial and employment law experience, together with his corporate background, to provide strategic and pragmatic advice to his clients focussed on delivering strong... Read More

Chris Gianatti

Chris Gianatti Director

Chris worked for a number of years with Corrs before moving in-house to Telstra as HR Legal Counsel for the “Factory” (covering Telstra’s back of house operations including the field... Read More