Fair Work Legislation 2017-18
Publication Date 27 Oct 17
OverviewSCOPE OF THIS WORK Fair Work Legislation 2017- 18 contains federal workplace legislation fully consolidated to August 2017 and is designed for use by practitioners, business professionals and students. It is an essential reference to the Fair Work regime, featuring annotations to over 100 key provisions of the Fair Work Act 2009. The 2017-18 edition of Thomson Reuters' Fair Work Legislation includes revised and updated commentary on key provisions of the Fair Work Act 2009 by the general editors of the related subscription online and looseleaf publication, National Workplace Relations. Also included is an article covering the Registered Organisations Commission, Australian Building & Construction Commission and the changes to 457 Visas, together with an extensive summary of developments since the last edition in the Year in Review, such as the increase in the high income threshold for exclusion from the Fair Work Commission's unfair dismissal jurisdiction to $142,000 per annum. Significant cases over the past year, detailed in the commentary, include: The decision of the full bench of the Fair Work Commission (FWC) in 4 Yearly Review of Modern Awards - Penalty Rates  FWCFB 1001, which decided to reduce Sunday and public holiday penalty dates in five of the selected modern awards under review, with later decisions to determine the method and timing of phasing in of the reductions. This has been challenged by United Voice and the Shop, Distributive and Allied Employees Association, and looks likely to be heard by a full court of the Federal Court in October 2017. The Annual Wage Review 2016-17  FWCFB 3500, in which the national minimum wage and wage rates under Modern Awards were increased by 3.3%. The national minimum wage was increased from 1 July 2017 to $694.90 for a 38 hour week. Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (No 4)  FCA 580, which decided the remitted proceedings following the High Court decision in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 256 CLR 137;  HCA 45, in which the High Court considered the application of the "sham contracting" prohibition (s 357 of the Fair Work Act) to tripartite labour hire arrangements. The Federal Court imposed significant penalties on remitter and, in doing so, applied Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 90 ALJR 113;  HCA 46 (in which the High Court held that courts are permitted to consider an agreement between the parties on penalties, or submissions by a regulator on the quantum or range of penalties), accepting and imposing the penalties submitted for by the Fair Work Ombudsman. On the industrial action front, the long running Esso litigation makes its way to the High Court with the granting (on 16 December 2016) of special leave to appeal from the full Federal Court decision in Esso Australia Pty Ltd v The Australian Workers' Union (2016) 245 FCR 39;  FCAFC 72. Whilst the High Court granted special leave in relation to the question of whether a bargaining party in breach of orders dealing with industrial action is meeting the common requirements set out in s 413(5) of the Fair Work Act 2009 that apply for industrial action to be protected, the High Court refused leave vis a vis the powers of the Fair Work Commission under s 418 to make orders being limited to the scope of the identified industrial action, and in so doing, decided this issue to finality. Shop, Distributive and Allied Employees' Association v ALDI Food Pty Ltd (2016) 245 FCR 155;  FCAFC 161, in which a full court of the Federal Court quashed the decision in Transport Workers' Union of Australia v ALDI Foods Pty Ltd  FWCFB 91 (in which a Full Bench of the FWC had upheld the employer's ability to enter into an agreement with employees in a new geographical area as a single-enterprise employee agreement, rather than as a Greenfields agreement), and quashed the subsequent approval of the relevant ALDI enterprise agreement. Special leave to appeal from the full Federal Court decision has been granted by the High Court (on 8 March 2017). A series of decisions of the FWC and the Court concerning the form and/or content requirements of the Notice of Employee Representational Rights in Sch 2.1 of the Fair Work Regulations, commencing with the now oft cited Peabody Moorvale v CFMEU  FWCFB 2042, which have presented employers with an often insurmountable obstacle to approval of agreements otherwise validly made with employees, and culminating in the proposal for amendment of the Fair Work Act 2009 to give the Commission the discretion to correct "minor procedural or technical" errors in any given Notice, as set out in Sch 2 to the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017. There have also been a number of decisions handed down developing applicable principles in relation to the right of entry and workplace bullying provisions of the Fair Work Act. The legislation set out includes the changes brought about by the Fair Work (Registered Organisations) Amendment Act 2016, including the creation of the Registered Organisations Commission with effect from 1 May 2017, as well as the amendments to the Fair Work Act itself effected by the Fair Work Amendment (Respect for Emergency Services Volunteers) Act 2016 (which commenced on 13 October 2016). LEGISLATION Fair Work Legislation 2017 - 18 contains the following legislation: Fair Work Act 2009 Fair Work Regulations 2009 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 [Extracts] Fair Work (Transitional Provisions and Consequential Amendments) Regulations 2009 Fair Work (Registered Organisations) Act 2009 Fair Work (Registered Organisations) Regulations 2009 Fair Work (Registered Organisations) (Transitional Provisions) Rules 2017 Fair Work Commission Rules 2013 Building and Construction Industry (Improving Productivity) Act 2016 Building and Construction Industry (Improving Productivity) Regulations 2017 Building and Construction Industry (Consequential and Transitional Provisions) Act 2016 Building and Construction Industry (Consequential and Transitional Provisions) Rules 2016 Code for the Tendering and Performance of Building Work 2016 Competition and Consumer Act 2010 [Extracts] Federal Court of Australia Act 1976 [Extracts] Federal Court and Federal Circuit Court Regulation 2012 Federal Court Rules 2011 [-Extracts] Federal Circuit Court of Australia Act 1999 [Extracts] Federal Circuit Court Rules 2001 [Extracts] Independent Contractors Act 2006 Independent Contractors Regulation 2016 Paid Parental Leave Act 2010 Paid Parental Leave Rules 2010 Workplace Gender Equality Act 2012 Workplace Gender Equality (Matters In Relation To Gender Equality Indicators) Instrument 2013 (No 1) Workplace Gender Equality (Minimum Standards) Instrument 2014 Fair Entitlements Guarantee Act 2012 Fair Entitlements Guarantee Regulation 2012 Fair Entitlements Guarantee (Indexation of Maximum Weekly Wage) Regulation 2013 CURRENCY The Acts, rules, regulations and instruments reproduced in this book are current as at 1 August 2017. EDITORS Mark Rinaldi BJuris(Hons) LLB BA (UWA), LLM Grad Dip Corporations and Securities Law (Melb), Barrister Mark Rinaldi is a leading industrial and employment law barrister. Prior to joining the Victorian Bar in 1997, Mark was a solicitor and Senior Associate at Freehills in Perth and Melbourne in commercial litigation and employee relations. He was also Associate to Justice French of the Federal Court (later French CJ of the High Court) in 1990 - 91. Mark appears regularly in State and Federal courts, the Fair Work Commission, VCAT and other tribunals, as well as providing advice and conducting mediations and inquiries, predominantly in employment, industrial and commercial law matters. Mark joined the Tasmanian Bar in 2008 and has chambers in both Melbourne and Hobart. He is also an interstate member of the Western Australian Bar. He is a national committee member of the Australian Labour Law Association. Dr Victoria Lambropoulos PhD (Deakin), LLM (Melb), BA, LLB (Mon); Senior Lecturer, ANU College of Law, Barrister, Victorian Bar. Victoria Lambropoulos is a senior lecturer at the ANU College of Law in Canberra. She is also a member of the Victorian Bar where she practices in employment and industrial law. Victoria writes regularly for academic and practitioner journals on employment and industrial relations issues. She is a regular presenter at practitioner and academic conferences both in Australia and internationally. Victoria is also a committee member of the Industrial Relations Society of Victoria, the Australian Labour Law Association and the Industrial Bar Association of Victoria Rohan Millar LL M, B Com (Melb), Barrister at Law Rohan Millar is a Melbourne barrister practising in employment law. He appears regularly in the Fair Work Commission and the courts, particularly in cases involving termination of employment, post-employment restraints, discrimination, employment contracts and industrial disputes. Prior to joining the bar he was a solicitor at Mallesons Stephen Jaques and Arthur Robinson & Hedderwicks. Aaron Neal BEco, LLB (Hons) (Syd), Solicitor, Supreme Court of New South Wales Aaron Neal has extensive experience in workplace relations and employment law, having been an Associate to Justice Marshall of the Federal Court of Australia, a Legal and Policy Officer at the Commonwealth Department of Employment and Workplace Relations, practised as a barrister at the New South Wales Bar, and worked as in house lawyer at a number of Unions, most recently as Consultant Lawyer at the Maritime Union of Australia..