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CommBank to pay back $3M to employees forced to work through breaks

The Commonwealth Bank of Australia (CommBank) has agreed to pay back $3M to employees that were made to work through 10-minute tea breaks they were entitled to.

The Finance Sector Union of Australia (FSU) bought a claim against CommBank in the Federal Court (Court) last year, initially alleging $45M was owed to around 3,000 employees, dating back to 2014. The FSU claimed employees were denied their 10 minute breaks due to the business suffering staff shortages.

However, the FSU and CommBank came to an agreed settlement of $3M to be paid back to employees for the past 6 years.

Finance Sector Union Australia – Media release.


Ignorance no defence for director found complicit in breaches of Fair Work Act

The Federal Court has found a Director liable for company breaches of the Fair Work Act 2009 (Cth) (FW Act), despite the Court accepting the director ‘believed he did not commit [the company] to engage in any unlawful activity’.

The Court found the director had ‘knowledge of the terms of the Award and of the Contravening Conduct’ after he participated in a meeting where two models were presented as options for how to pay staff under the relevant award. The model chosen, which was supported by the Director, ultimately led to the underpayment of approximately 150 workers of more than $160,000.

The Court found that in contributing to the decision to implement the selected model, the director had ‘acquired sufficient knowledge… to enable him to understand the differences between the costing models, assess their relative merits, and ultimately decide, or join in the decision’, which ‘constituted knowledge’ of the companies’ contraventions.

Fair Work Ombudsman v Chatime Australia Pty Ltd (No 2) [2023] FedCFamC2G 712 (11 August 2023)


FWC finds employee was dismissed, despite not working a single shift and the employer withdrawing the role

The Fair Work Commission (FWC) found an employee was dismissed, despite the employer arguing that the employment had not yet commenced, and the employee not working any shifts.

The worker was offered a position by the employer, had ‘completed the application process and ‘onboarding’’, and was rostered to begin her first shift, but was advised prior to her first day that the business and its partners had decided to withdraw the offer.

The FWC explained that whether an employer has terminated a person’s employment ‘depends on the status of any employment relationship… as opposed to the status of any contract of employment’. The FWC ultimately found that ‘an employment relationship, albeit one of relatively short duration, existed between them’, finding the employee had been dismissed under the FW Act and has recourse to an unfair dismissal claim.

Mrs Sonia Argentier v CITY PERFUME RETAIL PTY LTD [2023] FWC 1819

Employer to pay $44K to injured employee for failure to make reasonable adjustments despite cause of employee’s injury being unrelated to employment

An employer has been ordered to pay $44,000 to an employee for failing to make reasonable adjustments that would allow the employee to return to work, despite the injury occurring outside of the employment.

Although the employer alleged ‘there were no reasonable adjustments it could have made to allow [the employee] to carry out safely the inherent requirements of his role’, the Court found the employer was ‘required to propose making some reasonable adjustment to accommodate [the employee’s] injury, notwithstanding the fact that his disability was not related to his work’. The Court also found the employer should have offered the employee ‘a staged return to the workplace to see how he coped with it and some of the tasks’.

The Court clarified that employers were not expected to ‘create an entirely new position for the employee concerned’. However, it was highlighted that ‘sickness and temporary incapacity are common exigencies of the workplace’ and there is a ‘legitimate expectation that employers will deal with such exigencies and make allowances for the employee concerned, particularly if the condition affecting their work is likely to be a temporary one’.

Panazzolo v Don’s Mechanical and Diesel Service Pty Ltd [2023] FedCFamC2G 665 (2 August 2023)

We hope you have enjoyed this fortnight’s employment law news. See you next fortnight!

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