Welcome to the latest edition of our fortnightly Workplace Watch. In this edition we cover:
- election updates on topics including same-job same-pay, working from home in the public sector and the ALP’s commitment to revamping the SCHADS Award;
- long service leave decisions regarding portable long service leave in Victoria and the issue regarding service in multiple jurisdictions under State legislation in Queensland;
- the latest law reform updates, including mandated psychosocial first aid training in NSW;
- regulatory updates including the Fair Work Ombudsman’s priority investigation into the aged care sector and the McKell Institute’s report into the policy and economic impact of the same-job same-pay laws;
- recent updates from the Fair Work Commission, including submissions from key parties to the Fair Work Commission’s Annual Wage Review 2024-2025;
- a significant case update from the High Court dismissing the ACCC’s boycott appeals; and
- a decision from the Federal Court involving pecuniary penalties for enterprise agreement contraventions caused by an honest, but incorrect, interpretation.
Election 2025
Same Job Same Pay laws
Opposition leader Peter Dutton MP has announced that if elected, his government would not seek to repeal the same job same pay laws (i.e. Regulated Labour Hire Orders) introduced by the Albanese Government. At a media conference in Perth on 3 April, when asked if his government would seek to repeal the same-job-same pay laws, Mr Dutton MP responded “we’re not going to [do that]”. He elaborated as follows:
“As we’ve said right from the start, the big difference on industrial relations policy at the next election between us and the Labor Party will be that we’re going to deregister the CFMEU.”
The Opposition Leader has previously indicated his party would seek to repeal these legislative changes made by Albanese government as well as the definition of a casual and the ‘right to disconnect’ laws.
The transcript for Peter Dutton MP’s press conference at Midvale, Perth on 3 April 2025 can be found here.
Working from home arrangements in the public sector
Mr Dutton MP has also revised his party’s initial stance that would require Australian Public Service (APS) employees to attend the office 5 days per week, stating that it would support work from home policies and not mandate a minimum attendance requirement for APS employees, if elected. A Liberal Minister had previously indicated that all APS employees would be expected to be in the office five days per week.
The Opposition Leader has also committed to the reduction of 41,000 jobs in the APS would occur over the next five years and be achieved though “a hiring freeze and natural attrition”.
The “Plan for an Efficient and Effective Public Service” released by the Liberal Party states:
“A Dutton Coalition Government will:
- Sensibly reduce the APS (excluding military and reserves) by 41,000 over five years, bringing it back to a sustainable level, while protecting frontline services delivery and national security positions. This will be done methodically, through a hiring freeze and natural attrition.
- Strengthen our public service by encouraging our public servants to gain experience and understanding of the private sector.
- Support flexible working arrangements for the public service, including working from home, by respecting existing flexible working arrangements, and enshrining them in future agreements. A Coalition Government will not change current flexible working arrangements, including work from home policies. There will be no mandated minimum number of days for public servants to work in the office.”
The Opposition’s full policy stance “Plan for an Efficient and Effective Public Service” can be found here.
Labor commitment to revamping SCHADS Award
Minister for Employment and Workplace Relations, Murray Watt MP, has pledged to the Australian Services Union that if re-elected at the upcoming federal election, the Albanese Government will support and fund an in-depth review and revamp of the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award).
In a public letter written to ASU National Secretary, Emeline Gaske, Senator Watt has confirmed Labor’s commitment to ensuring the SCHADS Award remains fit for purpose over the long-term, noting the classification structures in the SCHADS Award had not been reviewed in three decades.
The ASU filed an application in July last year to vary the SCHADS Award in which it seeks to incorporate the Social and Community Services Equal Remuneration Order 2012 into the SCHADS Award and vary the classification structure that applies to most employees. The ASU’s application will be heard after the 2025 election as the final part of the Commission’s general undervaluation review of priority awards.
The letter to Ms Gaske states:
“As you know, the Albanese Government and the ASU have shared objectives in relation to gender equality, closing the gender pay gap, and wages growth. Consistent with these shared objectives, the Albanese Government commits to engaging in good faith with the ASU and other stakeholders to ensure that the SCHADS Award is fit for purpose over the long term. If re-elected, the Albanese Labor Government will:
- Acknowledge that as the primary funder of these services, the Commonwealth has a key role to play and will participate constructively in the Fair Work Commission proceedings; and
- Provide funding to resource a community and disability sector workforce project, led by key stakeholders, including the ASU, which supports the development of a modern and fit for purpose classification structure that appropriately recognises the skills and experience of the workforce; and
- Adopt a positive stance in respect of the implementation of any decision of the Commission, subject to the obligation on the Commonwealth to manage any changes to the SCHADS Award in a fiscally and economically responsible manner.”
Senator the Honourable Murray Watt’s public letter to Ms Gaske can be accessed here.
LONG SERVICE LEAVE
Significant decision regarding portable long service leave
The Supreme Court of Victoria has found that the Victorian portable long service leave scheme applies to maintenance employees of EnergyAustralia.
A dispute arose between EnergyAustralia and LeavePlus, the trustee of the Construction Industry Long Service Leave Fund. The dispute concerned whether EnergyAustralia was required to make contributions to the fund in respect of certain maintenance employees.
EnergyAustralia operates the Yallourn power plant in the Latrobe Valley in Victoria, supplying over one fifth of the State’s electricity. It sought a declaration to the effect that none of its maintenance workers were covered by the portable long service leave scheme under the Construction Industry Long Service Leave Act 1997 (Vic). It argued that whilst it has workers that perform the work of maintaining or repairing structures or works for the generation, supply or transmission of electrical power it was not engaged in that industry such that the portable long service leave scheme applied.
It was unsuccessful. The Court found that:
- EnergyAustralia is in the ‘construction industry’;
- its maintenance workers do not fall within the routine or minor maintenance carveout; and
- at least some of the work performed by maintenance workers is work of a kind for which a rate of pay was fixed by a prescribed award as at 6 May 2014.
The Court said:
“39 Here, there is a strong textual indication that a substantial character test does not apply. The definition of construction work specifically excludes ‘maintenance or repairs of a routine or minor nature by a worker for an employer who is not engaged substantially in the construction industry’ (‘the routine or minor maintenance carve out’). If an employer could only be in the construction industry if they met a substantial character test, the emphasised words in the routine or minor maintenance carve out would have no work to do…
41 EnergyAustralia sought to distinguish between a ‘substantial character test’ and being substantially engaged ‘in’ an industry. It said that the former was concerned with the true character of the enterprise and the latter was concerned with the scale of the activities. For that distinction to have meaning and for the routine or minor maintenance carveout to have any work to do, an employer would have to be in the construction industry in the sense that its ‘true character’ was properly regarded as falling within the industry as defined but have activities at such a small scale that it was not ‘substantially’ in the industry. I do not accept that the words of the Rules should be given such a strained and unlikely construction.
42 This is, in my view, sufficient to dispose of EnergyAustralia’s contention that a substantial character test applies to the construction of the term ‘construction industry’ in the Rules.
43 Once it is accepted that EnergyAustralia’s enterprise can, for the purposes of the Rules, be in an industry of repair or maintenance of structures used to generate electricity without needing to be ‘substantially’ in that industry, it is difficult to see how the evidence in this case leads to any other conclusion. I accept that it is not enough that there be some employees of EnergyAustralia involved in maintenance or repair of structures or works involved in the generation of electricity – that might show that there were employees employed in an occupation of repairing or maintaining structures and the like but not necessarily that EnergyAustralia was in that industry. Even without a substantial character test it is necessary that the activity can be described as something which is part of EnergyAustralia’s overall business purpose.
44 EnergyAustralia owns, operates and maintains a power station – that is its business. Its primary purpose, it may be accepted, is the generation of electricity for sale. However, the evidence shows that in order to fulfill that primary purpose it has to devote very considerable resources to the maintenance and repair of the structures or works involved in the generation of that electricity.
45 It makes sense, as a matter of ordinary language, to describe EnergyAustralia’s business purpose as including carrying on the maintenance of or repairing the power station’s electricity generation equipment and plant. It makes sense, as a matter of ordinary language, to describe it as being in the industry of repairing and maintaining those structures or works as well as being in the industry of generating electricity.
46 In any event, even if the substantial character test does apply, for the reasons below, I am satisfied that EnergyAustralia is in the industry of carrying out maintenance of or repairs to structures or works for the generation, supply or transmission of electric power.”
The Victorian Supreme Court decision in EnergyAustralia Pty Ltd v CoInvest Ltd [2025] VSC 100 can be found here.
Queensland Court of Appeal rules on long service leave issue
An employer challenged a ruling from the Industrial Court of Queensland that an employee was entitled to long service leave under the Queensland Industrial Relations Act 2016 despite having only worked for 18 days in the State.
This is the latest of a series of appellate court decisions in recent years that deal with the issue of applying State long service leave legislation to employees who move between jurisdictions with the same employer.
Bond JA (with which the other Judges agreed) assessed the issue as follows:
“[37] The terms of the employee’s initial engagement with the appellant contemplated his services could be transferred to any of the appellant’s units or departments situated anywhere in India or abroad. Such a transfer occurred when in June 2018 the employee received a deputation to the appellant’s office in Melbourne.
[38] Under the terms of the June 2018 deputation agreement, although the employee’s “base location” continued to be in India, the employee was required for the period of the deputation to work at the appellant’s Melbourne office. That the contract both specified a “base location” and also required the employee to be physically located for a period of time at some other place could not by itself dictate an answer to the question. Pursuant to the deputation agreement and the assignment letters dated 27 July 2020 and 15 December 2020, from 15 June 2018 to 13 March 2022, the employee worked for the appellant on assignment with the appellant’s client Telstra at an office in Melbourne.
[39] It follows that in every real sense, for that period and despite the contractual statement of “base location”, his service was in Melbourne, not India, albeit that his service was subject to the possibility that he might be required to work at any of the Company’s customer sites or in any other location as per the business requirements in Australia, or even to return to India. During that period, even if he had been required to perform some work whilst physically in Queensland, it could not have been concluded that his employment was partly in Queensland. The location of his employment was Melbourne.
[40] That position changed consequent upon the appellant having issued the assignment letter of 9 March 2022. The statement of agreed facts records that pursuant to that letter the employee was engaged to work in Brisbane. I would infer the employee must have accepted the assignment letter as issued and thereby altered the terms of his contract of employment. Once that occurred, it became part of the employee’s contract of employment that his assignment location was changed from Melbourne to Brisbane. Even though he resigned from his employment before moving to Brisbane, the contract was not immediately terminated. It is difficult to reach any other conclusion than that the period in which he was physically in Brisbane working out his notice period, was nevertheless work performed under the contract of employment altered by the assignment letter. The result is that for at least that period of time his “service” (or “employment”) with the appellant was located in Queensland.”
The Queensland Court of Appeal decision in Infosys Technologies Limited v Fox [2025] QCA 45 can be found here.
LAW REFORM
Mandated training for psychological first aid in NSW
The NSW Government has released the 2025-2029 “NSW Mental Health and Wellbeing Strategy for First Responders”, which, among other key items, mandates the provision of psychological first-aid training by key public sectors agencies in NSW.
The strategy paper states:
“First responders are among the most at-risk occupations for work-related mental health disorders. The nature of emergency work means workers are asked to put themselves in situations where their personal safety is at high risk. This puts them at increased risk of psychosocial harm.
Health and safety at work is a fundamental right for all workers. The onus is on organisations to have control measures in place to eliminate psychosocial risks, or if elimination is not possible, to minimise these risks so far as is reasonably practicable.”
Work Health and Safety Minister Sophie Cotsis MP said the following in respect of the strategy:
“I welcome this strategy that ensures road workers, national park employees and forestry workers all have access to the same psychological support offered to other first responders.
Workplace mental ill health is estimated to cost Australian businesses up to $39 billion each year, due to lost participation and productivity.
The NSW Government is committed to preventing psychological harm and promoting mental health as part of a mentally healthy workplace.”
You can find the NSW Government’s full strategy report here and the NSW Government’s statement on the strategy here.
Regulatory Updates
McKell Institute releases report into Same Job Same Pay laws
Progressive research institute, the McKell Institute, has released its report into the same job same pay legislation, more than a year on from its enactment into Australian law. Titled “Closing Loopholes, Opening Opportunities – How Same Job Same Pay is Delivering for Workers and Communities” the report examines the current and expected policy and economic impacts of the laws, including identifying outcomes for various workplaces (including in the mining, aviation and warehousing industries).
The McKell Institute report can be found here.
Fair Work Ombudsman panel enlisted to crack down on aged care sector
The Fair Work Ombudsman (FWO) has announced that it is prioritising investigations into aged care providers across five states to assess their compliance with payment and entitlement obligations to their staff.
Having commenced investigations in late February 2025, the FWO has inspected and/or undertaken interviews with staff and management at 27 sites of 20 aged care providers across Victoria, NSW, South Australia, Queensland and Western Australia. These investigations are focussed on pay, entitlements and record-keeping for personal care workers, nurses and nursing assistance at aged care facilities. Common issues in this sector include underpayment of base rates, overtime, penalty rates and payments on termination.
The Aged Care Services Reference Group conducting the investigation is comprised of senior FWO Leaders, Ageing Australia (the peak employer body in the aged care sector), and union representatives from the Health Services Union, the Australian Nursing and Midwifery Federation and the United Workers Union.
The Ombudsman Anna Booth had the following to say in respect of investigative measures into in the aged care sector:
“The aged care sector employs a high number of vulnerable workers, particularly migrant workers, who are at risk of exploitation, and these inspections are making sure their workplace rights are being met.
If we find breaches, our first aim is to ensure that workers are fully and promptly back-paid. If we find employers with significant compliance issues we’ll consider our enforcement tools as appropriate.”
The FWO separately warned employers in the sector to stay across changes to minimum pay rates, including recent changes which have taken effect in 2025. This comes after the FWO reportedly recovered over $40 million in the sector in 2023-2024.
The FWO’s announcement in respect of the investigations into the aged care sector can be found here.
FAIR WORK COMMISSION UPDATES
Annual wage review: ACTU calls for significant minimum wage increase
The Australian Council of Trade Unions (ACTU) has called for an 4.5% increase to minimum wages in its initial submission to the Fair Work Commission as part of the 2024-2025 Annual Wage Review.
In its submission, the ACTU asserted:
“This year the ACTU submits that the current circumstances, including the economic circumstances, all place the Panel in a better position than last year to make substantial progress in repairing the real value of minimum and award wages. On this basis the ACTU is putting forward a claim of 4.5% increase in the NMW and award wages.”
The increase submitted by the ACTU would raise the minimum wage to $25.18 per hour (noting it is currently $24.10 per hour). The ACTU submission stated: “Despite the pick-up in wages growth after nearly a decade of stagnation, and the welcome return of growth in real wages, the cost of living crisis continues to weigh down Australia’s workers”.
The Albanese Government has separately called for the Commission to “award an economically sustainable real wage increase to Australia’s award workers” in its initial submission to the Annual Wage Review. Their submission reads:
“An increase in minimum and award wages should be consistent with inflation returning sustainably to the target band this year, while providing further relief to lower income workers who continue to face cost of living pressures. Labor submits that this outcome is both fair and economically responsible. “
Further, the Australia Chamber of Commerce and Industry (ACCI) has proposed a 2.5% National Minium Wage and Modern Award Wage increase to the Annual Wage Review, stating:
“Over the past two AWRs, the Fair Work Commission (FWC) has played down the minimum and modern award wages’ contribution to total wages growth. Strong wages growth and resilience in the labour market continue to drive up business costs. This has exacerbated economic challenges by keeping interest rates higher for longer.”
The Australian Industry Group (AIG) has separately submitted that any increase in award and minimum wages should not exceed 2.6%.
See the ACTU’s submission to the Annual Wage Review 2024-2025 here, the Australia Labour Party’s submission here, the ACCI’s submission here and AIG’s submission here.
The initial submissions from all parties to the Fair Work Commission’s Annual Wage Review 2024-2025 were due on 4 April 2025 and can be accessed here
Employer wins Full Bench appeal regarding notice entitlements for employees
Rail and Transit Systems provider Downer EDI Rail Pty Ltd (Downer) has been successful in its appeal to a Full Bench of the Fair Work Commission regarding notice entitlements for its employees engaged to perform testing and commissioning for its High Capacity Metro Trains (HCMT) project.
The original enterprise agreement dispute application made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) alleged that employees who had been made redundant by Downer were entitled to more than one month payment lieu of notice based on clause 36 of the Downer EDI Rail HCMT T&C Enterprise Agreement 2022 (Agreement), which stated:
“36. CLOSURE OF WORKSHOP
36.1 Should the Company be no longer required to provide labour to perform testing and commissioning activities to the HCMT project, the Company shall give at least three (3) months’ notice of this to Employees.
36.2 Employees will be considered for suitable redeployment opportunities in other work locations of the Company.”
Downer argued that clause 36 only entitled employees to 3 months’ payment in lieu of notice if it was no longer required to provide any labour to the HCMT project, which was not the case because even though the project was winding down, Downer was still providing labour. As such, a 3-month notice period was not enlivened.
At first instance, Commissioner Tran accepted the CEPU’s construction of the clause and held that nothing in clause 36 suggested the 3-month notice period was only due to employees when the entire HCMT operation came to an end (factoring in the industrial purpose of collective notice periods). However, on appeal, Full Bench of the Commission disagreed, and relevantly held:
“[21] We reject the CEPU’s argument that Downer’s interpretation of clause 36.1 is a narrow or pedantic one. It is the CEPU’s interpretation that is unduly broad. It travels beyond the meaning that the words of the provision can rationally support. The CEPU’s written submissions contended variously that Downer’s appeal had not demonstrated any error in the Commissioner’s reasoning process. But as we have said, the correctness standard applies to this appeal, not the classes of discretionary error referred to by the High Court in House v The King. The decision cannot be defended on the basis that the Commissioner did not commit any mistake in the decision-making process.
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[24] In our opinion, the correct answer to the first question submitted for determination is that the words ‘no longer required to provide labour’ in clause 36 mean ‘no longer required to provide any labour’. It is not necessary to determine the second question, but it is clear that clause 36 does not require Downer to make any payments in lieu of notice to employees.”
The Full Bench also made some important remarks in respect of the Commission’s role in determining disputes arising from an enterprise agreement and the extent of its discretion concerning those disputes:
“[23] Secondly, to the extent that the CEPU contends that, irrespective of the proper meaning of clause 36, the Commissioner had a discretion to determine the dispute by making any order that she thought was appropriate, we reject it. Section 739(5) specifically prohibits the Commission from making a decision that is inconsistent with a fair work instrument, such as an enterprise agreement under which it is arbitrating the relevant dispute. In our view, an order for payment in lieu of notice under clause 36 would contravene this provision of the Act. Subject to the terms of the enterprise agreement, the Commission may make orders it considers appropriate to give effect to its arbitration of the relevant dispute, provided that the order does not go beyond what would be reasonably incidental to that dispute. But the Commission cannot by arbitration under a dispute resolution provision in an agreement create new substantive entitlements, such as a right to payment in lieu of notice that an agreement does not provide for, unless the agreement authorises the Commission to do so.”
The decision of the Full Bench, Appeal by Downer EDI Rail Pty Ltd v CEPU [2025] FWCFB 65, can be found here.
Employer did not force employee to resign by directing him to return to office
The Fair Work Commission has ruled that architectural and design services firm Archsign did not force one of its employees to resign by providing a direction that he return to the office in a bid to increase productivity; despite the availability of work from home arrangements for staff.
The Applicant stated that he had previously reached agreement with one of his managers (who was on leave at the time) regarding notification and approval for him to work from home. However, the employer’s Operations Manager took issue with this arrangement and called the Applicant into a meeting to discuss his concerns about the Applicant’s working from home patterns and its significant impact on productivity at the business. At the conclusion of this meeting, the Applicant asserted he felt pressured to resign.
In finding that the employer had not in fact dismissed the Applicant and therefore the unfair dismissal application could not proceed, Commissioner Mirabella said:
“[32] In any private enterprise, it is expected that management take reasonable measures to ensure that staff are providing the value for which they are paid. That the Applicant was called into the meeting by Mr Cizmic and not his direct manager, is not a hostile act as submitted by the Applicant. His manager, Mr Guizzo was away. In light of the company’s productivity challenges, it was not unreasonable for Mr Cizmic to be concerned about the Applicant’s productivity. The 11 September meeting was held to discuss such concerns and an opportunity to improve was provided. The Applicant was to have a couple of weeks to act on his employer’s concerns.
[33] The Applicant appears to have taken offence that he was asked to endeavour to improve (over two weeks) and conflates his outrage to fears for his ‘psychological safety’. In all the circumstances the request made by Mr Cizmic is not unreasonable. The Applicant has not given a clear explanation of what he means by ‘psychological safety’, and provided no evidence that the [sic] his ‘psychological safety’ was in danger of being compromised, and accordingly I reject all submissions in this regard.”
Adam Webster v Archsign Pty. Ltd. [2025] FWC 984 can be found here.
MAJOR Case updates
High Court decision regarding anti-competition boycott laws
The High Court dismissed appeals against the decision of the Full Court of the Federal Court concerning the secondary boycott provisions in the Competition and Consumer Act 2010. The Australian Competition and Consumer Commission (ACCC) argued that construction company J Hutchinson Pty Ltd (Hutchinson) had unlawfully made an arrangement or understanding with the CFMEU to the effect that it would terminate or otherwise cease to acquire services from a subcontractor (who did not have an enterprise agreement with the CFMEU).
The decision by Hutchinson to exclude the subcontractor and terminate the contract came after threats by the CFMEU of industrial action should the contractor be allowed to return to the worksite. The ACCC argued that there is an “understanding” within the meaning of the legislation if one person makes a threat and demand to another person, and the other person capitulates to that threat and acts as demanded.
The ACCC’s argument was initially endorsed by the Federal Court in 2022, before being overturned by a Full Court of the Federal Court on appeal. A majority of the High Court said:
“[20] Like an arrangement, an understanding may be informal as well as unenforceable, so that a person may be free to withdraw from it or to act inconsistently with it, notwithstanding their adoption of it. Further, for one person to arrive at an understanding or make an arrangement with another person which is of sufficient substance to be characterised as containing a provision to which one or other of them is prohibited from giving effect necessarily involves interaction between them by which one expressly or tacitly communicates by words or conduct to the other a commitment to act or refrain from acting in a particular way. For an understanding to be arrived at, there must at least to that extent be a “consensus” or a “meeting of the minds”.
[21] There is no doubt that an understanding may be arrived at where one person, following receipt of a demand accompanied by a threat from another person, communicates by words or conduct to the person who made the threat a commitment to do what has been demanded. An example of such a case is Rural Press Ltd v Australian Competition and Consumer Commission,[32] where, on the extensive findings of fact by the primary judge in that case,[33] that was the nature of the arrangement accepted by this Court to have been made and which applies equally to an understanding.
[22] On the other hand, an understanding is not, without more, arrived at where one person unilaterally decides to act in a particular way in response to conduct of another, even if that conduct involves the making of a demand accompanied by a threat.
[23] That is perhaps to say no more than that there is no special category of understandings that are arrived at because of a threat or, more specifically, a threat of industrial action. The act of a person succumbing to a threat does not, without more, amount to arrival at an understanding to do what is demanded. The act may be explicable as a rational, commercial response to the threat rather than a form of collusive behaviour aimed at achieving a proscribed purpose.
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[26] On the facts found and not challenged by the ACCC in this Court, the Full Court was correct to conclude that there was no understanding between Hutchinson and the CFMEU for the purposes of ss 45E(3) and 45EA of the Act in the absence of any proof of communication, express or tacit, between them by which the parties reached a common mind. Once it is accepted that arrival at an understanding requires proof of express or tacit communication between the parties of a commitment on the part of one party to do that which the other party has demanded of it, the ACCC’s contention that the understanding was formed by Hutchinson’s conduct in terminating the subcontract to avoid industrial action must be rejected.”
The full decision of the High Court in ACCC v J Hutchinson Pty Ltd and CFMEU [2025] HCA 10 (2 April 2025) can be found here.
No penalties for contravention caused by reasonable and genuine mistaken interpretation
The Federal Court has found that despite failing to correctly pay two of its teacher employees in contravention of its enterprise agreement, no pecuniary would be imposed on a Toowoomba based school because it had acted under a genuine and reasonable but mistaken interpretation of its enterprise agreement.
The Court previously found the Respondents, being the Corporation of the Roman Catholic Diocese of Toowoomba and Downland College, had contravened section 50 of the Fair Work Act (2009) (Cth) when they did not pay salary increases in arrears for teachers who were no longer employed at the time a new enterprise agreement (that would have otherwise applied to their employment) commenced operation on 2 December 2020.
The Catholic Employing Authorities Single Enterprise Collective Agreement – Religious Institutes Schools of Queensland 2019-2023 (Agreement) specified that all teachers would receive a salary increase of “2.5% of the applicable salary rate operative as of the first full pay period on or after 1 July 2019”.
At first instance, the Federal Court dismissed the application, but on appeal by the Applicants, the Full Court of the Federal Court held that the Respondents had breached the Agreement in not honouring the back payments to the teaches irrespective of whether they were no longer employed. The Applicants sought additional declaratory orders as well as the imposition of pecuniary penalties.
In deciding to not impose pecuniary penalties on the Respondents despite the contravention, Justice Rangiah held:
“[69] The applicants’ contention that the respondents’ conduct was “deliberate” and “calculated” is simply not borne out on the evidence before me. The respondents did not deliberately contravene the Enterprise Agreements. Their conduct arose out of a reasonable, but ultimately erroneous, construction of the FWA and the Enterprise Agreements.
[70] The respondents’ approach to dealing with the disputed construction of the Enterprise Agreements cannot be described as “high-handed”, “unreasonable” or a strategy that was, “pursued for [their] industrial and financial advantage”, against vulnerable former employees. The affidavit of Paul Giles, the Assistant Secretary/Treasurer of the Union indicates that parties began exchanging correspondence about the issue of back pay for former employees in August 2020, setting out their respective positions. The parties continued to exchange correspondence and on 2 December 2020, the Enterprise Agreements came into operation. On the following day, the applicants commenced the proceeding against the respondents. In defending the proceeding, the respondents acted honestly and in accordance with their genuinely held view that they did not have any obligation to back pay the applicants.
[71] It may also be observed that the issue of construction was contributed to by the Union. The Union took part in the negotiation of the relevant clauses of the Enterprise Agreements, the drafting of which was criticised by the Full Court for its lack of clarity. Accordingly, the ensuing dispute cannot be attributed solely to the respondents.”
Justice Rangiah also ruled that the impact of the Respondents’ underpayments for 312 other employees arising from the same contravention to did not exacerbate the serious of the contravention:
“[78] In my view, the contraventions against Mr Murtagh and Mr O’Mara cannot be regarded as more serious on the basis that there were other asserted contraventions against other persons that were not the subject of the proceeding. It would have been open to the third respondent to plead that the respondents committed contraventions of s 50 of the FWA in respect of the other 312 employees it claims were also the subject of contraventions of the Enterprise Agreements. But the third respondent did not take that course. That there may have been other contraventions involving other employees cannot affect the seriousness of the contraventions that were pleaded and proved in the present case.”
In respect of whether deterrence was required in this case, the Court said:
“[87] In the present case, the contravening conduct arose out of an honest and reasonable but erroneous view about the interpretation of the commencement clauses and the relevant provisions of the FWA. The reasonableness of their interpretation was demonstrated by their success before the primary judge and the Full Court’s criticism of the lack of clarity of the relevant clauses. That lack of clarity was not entirely the fault of the respondents since the drafting was agreed to by the Union.
[88] There was no realistic prior opportunity for the respondents to seek a declaration from the Court because the Union commenced proceedings immediately after the Enterprise Agreements commenced operation. The respondents had legal advice supporting their construction. The amounts of money involved in the contraventions were not such as to create financial distress or hardship. The contraventions will not recur and the respondents have expressed their regret.”
The decision of the Federal Court in Independent Education Union of Australia v Corporation of the Roman Catholic Diocese of Toowoomba (No 2) [2025] FCA 310 can be found here.
