Industrial law
Employment contracts satisfied requirements under enterprise agreement of agreement to be paid average annualised wage and even if there had been no agreement for purposes of enterprise agreement then set-off would have been permitted
In Construction, Forestry, Maritime, Mining and Energy Union v Fremantle Port Authority [2024] FCA 848 (1 August 2024) the Federal Court of Australia (Colvin J) dismissed an application by the Construction, Forestry, Maritime, Mining and Energy Union (Union) that the Fremantle Port Authority (Employer) had underpaid employees because the Employer had not achieved the requisite agreement to pay each relevant employee an average annualised salary pursuant to the terms of the relevant enterprise agreement (at [2] and [6]).
The dispute concerned provisions in two enterprise agreements that permitted the Employer to pay an employee an “average annualised salary” (which incorporated payment for ordinary hours of work, rostered overtime, shift penalties and allowances) if the Employer obtained the agreement of the relevant employee. If an average annualised salary did not apply, then an employee would be paid by the “ordinary wages method” (meaning the employee would be paid on the basis of hours worked with the applicable loadings and allowances) (at [6]).
The average annualised salary provided equal payments each fortnight. The ordinary wages method provided fluctuating payments each fortnight (at [7]).
At a high level, the Union argued that the agreement required for the Employer to pay an employee an average annualised salary required the employee to make a “real, effective and informed choice” between the average annualised salary method versus the ordinary wages method (at [8]). As this had not occurred, the Employer had underpaid the relevant employees in the pay periods where the Employer had paid the employees less than they would have received pursuant to the ordinary wages method (at [10]).
The Employer argued that the agreement required for the Employer to pay an employee an average annualised salary was simply an agreement by the employee to be paid an annual salary and this is the agreement that the Employer had achieved (at [9]).
The Court was prepared to accept that the relevant employees had agreed to an average annualised salary (at [15]).
The Court construed language in a relevant enterprise agreement which provided that an average annualised salary could apply “[b]y agreement between the employer and an affected employee”. The Union and Employer agreed that this agreement needed to be an enforceable contract at law (at [34]). The Union made multiple arguments about why the contracts of employment entered into between the Employer and the relevant employees could not constitute the requisite agreement (at [54]-[56]). However, the Court did not accept these arguments. The Court held that the agreement required by the terms of the enterprise agreement could occur via the terms of the contracts of employment between the Employer and each relevant employee (at [60]).
If the Employer had been required to pay employees pursuant to the ordinary wages method, then the Court would have been prepared to accept the Employer’s “set-of defence”. This defence provided that the amounts that the Employer paid to the employees that was more than what the Employer was required to pay in relevant pay periods pursuant to the ordinary wages method could be set off against the shortfall in the pay periods when the Employer paid the employees less than the Employer had been required to pay pursuant to the ordinary wages method (at [13]).
Administrative law
Administrative Appeals Tribunal failed to consider the wellbeing and safety of children and community expectations when reinstating the registration of a teacher that was convicted of driving with excess blood alcohol and found guilty without conviction of persistent contravention of a family violence intervention order
In Victorian Institute of Teaching v Rachelle [2024] FCA 958 (23 August 2024) the Federal Court of Australia (McEvoy J) allowed an appeal by the Victorian Institute of Teaching (Institute) from a decision of the Administrative Appeals Tribunal (AAT). The AAT had set aside a decision of the Institute to cancel the teaching registration of the respondent (Teacher) (at [1] and [3]).
The Teacher had previously been convicted of charges involving driving with excess blood alcohol in New Zealand (at [5]).
The Teacher’s registration as a teacher was cancelled in New Zealand (at [6]).
The Teacher applied to the Institute to have her Victorian registration renewed. The Teacher did not disclose her criminal convictions or the cancellation of her registration in New Zealand (at [7]).
The Teacher was found guilty without conviction of persistent contravention of a family violence intervention order (at [8]).
The Institute cancelled the Teacher’s registration to teach in Victoria after the Institute learned about the range of criminal charges against the Teacher in Australia and the cancellation of the Teacher’s registration to teach in New Zealand due to the Teacher’s criminal convictions (at [9]).
The Institute refused an application from the Teacher to have her registration to teach in Victoria reinstated (at [10]) (Institute Decision). The Teacher sought review of the Institute Decision in the AAT (at [12]).
The AAT reinstated the Teacher’s cancelled registration (at [13]).
The appeal was based on multiple questions of law. One of the questions of law was whether the AAT failed to have regard to s2.6.3(1A) of the Education and Training Reform Act 2006 (Vic) (ETR Act) in determining that it was appropriate to reinstate the Teacher’s registration (at [16]). Section 2.6.3(1A) requires consideration of the wellbeing and safety of children, including by taking into account community expectations (at [25]).
The Court accepted that the AAT had failed to take into account this mandatory relevant consideration as a result of the lack of reference to the consideration in the relevant reasons as well as after the Court read the relevant reasons as whole (at [33]).
As a result, the matter was remitted to the AAT to be considered afresh (at [34]).
Practice and procedure
Orders for substituted service made after it was deemed not practicable to effect personal service on 268 individual respondents
In General Manager, Fair Work Commission v Construction, Forestry and Maritime Employees Union (Substituted Service) [2024] FCA 875(6 August 2024) the Federal Court of Australia (Wheelahan J) made orders for substituted service after it was determined to be “not practicable” to effect personal service on the 268 individual respondents named in the originating application for the purposes of r10.24 of the Federal Court Rules 2011 (Cth).
The applicant argued that it would be expensive and difficult to locate each of the respondents to effect service personally (at [3]).
The Court held that the likely reporting of the proceeding would make its existence a matter of common knowledge among the officials of the relevant division of the Construction, Forestry and Maritime Employees Unionand therefore ameliorate any disadvantages of the proposed order for substituted service (at [7]).
