Australian Education Union v State of Victoria (Department of Education and Early Childhood Development) [2015] FCA 1196

FEDERAL COURT OF AUSTRALIA

Australian Education Union v State of Victoria (Department of Education and Early Childhood Development) [2015] FCA 1196 Citation: Australian Education Union v State of Victoria (Department of Education and Early Childhood Development) [2015] FCA 1196

Parties: AUSTRALIAN EDUCATION UNION v STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT)

File number: VID 252 of 2013

Judge: BROMBERG J

Date of judgment: 6 November 2015

Catchwords: INDUSTRIAL LAW – payment of wages – Div 2 of Pt 2-9 of Ch 2 of Fair Work Act 2009 (Cth) (FW Act) – respondent (employer) implemented scheme pursuant to which laptop computers were provided to teachers principally for work purposes and deductions made from salaries of teachers as contributions to the cost of the equipment provided – whether employer contravened s 323(1) of FW Act and relevant Enterprise Agreements (Agreements) by failing to pay salaries in full – whether, and by way of exception to the requirements of s 323(1), s 324(1)(b) or (d) permitted the deductions made – as to s 324(1)(b), whether the deductions made were authorised by teachers in accordance with the Agreements – Agreements provided for salary packaging arrangements – whether the Recipient Agreement by which the deductions were authorised by teachers, was a "salary packaging arrangement" within the meaning of the Agreements – meaning of "salary packaging arrangement" – Recipient Agreement not a "salary packaging arrangement" and thus deductions not permitted by s 324(1)(b) – if, contrary to the finding made, deductions were authorised by Agreements, whether the term of the Agreements which permitted the deductions was rendered of no effect by s 326(1) because the deductions were "unreasonable in the circumstances" – consideration of meaning of "unreasonable in the circumstances" by reference to legislative history including Truck Act provisions – whether the participation of teachers in the scheme occurred in the absence of genuine choice – whether the deductions were set by reference to an unreasonable rate of contribution – whether teachers were the principal beneficiaries of the deductions made – whether the value obtained by teachers through personal use of the laptop computers provided a justification for the deductions made – deductions were "unreasonable in the circumstances" – as to s 324(1)(d), whether the deductions were authorised by or under a State law (Ministerial Order) – Ministerial Order not inconsistent with Agreements and not made in excess of power – whether s 324(1)(d) gave effect to deductions retrospectively authorised by Ministerial Order – consideration of presumption against retrospective operation of statutes in the context of a State law legislating for retrospectivity for the purpose of a Commonwealth law – whether presumption against alienation of vested property applicable – whether acquisition of property other than on just terms – s 324(1)(d) of FW Act did not authorise or act upon retrospective State law – whether any invalidity in Ministerial Order severable – Ministerial Order can be given partial effect – whether Ministerial Order inoperative by reason of the effect of s 326(1) – whether Recipient Agreements form part of teachers' contracts of employment and whether the terms thereof that permitted the making of deductions were of no effect by reason of s 326(1), as the deductions made were "unreasonable in the circumstances" – if so, was the operation of the Ministerial Order predicated upon the existence of effective Recipient Agreements in which teachers agreed to deductions from their salaries – Ministerial Order inoperative in relation to any deductions made pursuant to a term rendered of no effect by s 326(1) – contraventions of s 323(1) established – whether employer required teachers to spend their salaries on laptop computers in contravention of s 325(1) – whether a requirement made by an employer can be contained in a contract, for the purposes of s 325(1) – whether any requirement made by the employer was "unreasonable in the circumstances" pursuant to s 325(1) – circumstances in which a reduction in salary may be a "deduction" within the meaning of s 324(1).