Harpham v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCA 1473

FEDERAL COURT OF AUSTRALIA

Harpham v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCA 1473 File number: TAD 8 of 2014

Judge: TRACEY J

Date of judgment: 8 December 2016

Catchwords: INDUSTRIAL LAW – applicant employed by respondent between 2007 and 2012 – applicant's salary reduced in 2009 – applicant not paid "retirement allowance" between 2009 and end of contract – whether salary reduction and failure to pay retirement allowance contravened s 340(1) of the Fair Work Act 2009 (Cth) – no contravention of s 340(1) – whether salary reduction and failure to pay retirement allowance constituted breach of applicant's contract of employment – salary reduction constituted breach – failure to pay retirement allowance did not constitute breach – whether applicant underpaid redundancy entitlements or pay in lieu of notice, under the Fair Work Act – applicant not so underpaid – application allowed in part

Legislation: Acts Interpretation Act 1901 (Cth), s 46 Fair Work Act 2009 (Cth), ss 12, 18, 44, 117, 119, 340, 341(1)(a), 361(1), 545 Fair Work (Registered Organisations) Act 2009 (Cth), ss 140, 141, 164, 164A Independent Contractors Act 2006 (Cth) Limitation Act 1974 (Tas), s 4

Cases cited: Australian Workers' Union v Bowen (No 2) (1948) 77 CLR 601 Azevedo v Secretary, Department of Primary Industries and Energy (1992) 35 FCR 284 Cantor Fitzgerald International v Callaghan [1999] 2 All ER 411 Galafassi v Kelly (2014) 87 NSWLR 119 Khoury v Government Insurance Office of New South Wales (1984) 165 CLR 622 Rigby v Ferodo Ltd [1988] ICR 29 Romero v Farstad Shipping (Indian Pacific) Pty Ltd (2014) 231 FCR 403 Sargent v ASL Developments Limited (1974) 131 CLR 634