Construction, Forestry, Maritime, Mining and Energy Union v Fremantle Port Authority [2024] FCA 848

Federal Court of Australia

Construction, Forestry, Maritime, Mining and Energy Union v Fremantle Port Authority [2024] FCA 848 File number: WAD 148 of 2020

Judgment of: COLVIN J

Date of judgment: 1 August 2024

Catchwords: INDUSTRIAL LAW - alleged contravention of s 50 of the Fair Work Act 2009 (Cth) - where enterprise agreement provided for two methods of payment described as the 'ordinary wages method' or an 'average annualised wage' - where enterprise agreement provided for an 'affected employee' to be paid an average annualised wage by agreement with their employer - where employees' contracts of employment specified payment of an annual salary - where employees were paid their annual salary pursuant to the average annualised wage provisions such that amounts received by employees each fortnight were the same notwithstanding that hours actually worked each fortnight fluctuated pursuant to a rostering arrangement - where Union alleges that employees ought to have been paid according to ordinary wages method for hours actually worked such that there had been underpayments in some fortnights and overpayments in others - whether employer was entitled to pay an average annualised wage - whether contracts of employment providing for payment of an annual salary constituted agreement to be paid an average annualised wage for the purposes of the enterprise agreement - whether employer could set off 'over-award' payments against 'under-award' payments - whether employees suffered compensable loss - whether compensation an appropriate order - consideration of principles relevant to the construction of enterprise agreements - held employment contracts satisfied requirements under enterprise agreement of agreement to be paid average annualised wage - held if there had been no agreement for purposes of enterprise agreement then in all the circumstances set-off would have been permitted - held in any event not appropriate to order compensation - application dismissed INDUSTRIAL LAW - estoppel - whether Union or employees estopped from asserting that the relevant employment contracts did not constitute agreement under the average annualised wage provisions - whether facts giving rise to an estoppel against employees can effect Union's statutory right of action as party principal - consideration of character of statutory right conferred on Union by s 40(2) of the Fair Work Act