Australian Education Union v Victoria (Department of Education and Early Childhood Development)

The Australian Education Union (AEU) brought an action against the Victorian Department of Education and Early Childhood Development (DOECD), seeking to enforce compliance with the Fair Work Act 2009 (Cth) (FW Act). The AEU argued that the DOECD implemented a scheme whereby laptop computers were provided to teachers primarily for work purposes, with corresponding deductions made from the teachers’ salaries as contributions to the cost of the equipment. The AEU claimed this contravened s 323(1) of the FW Act and the relevant Enterprise Agreements (Agreements), which required salaries to be paid in full. The AEU sought a declaration that the DOECD had contravened the FW Act and the Agreements, and that the deductions were unreasonable.

The court was required to decide whether the deductions made by the DOECD were permitted under s 324(1)(b) or (d) of the FW Act. The court found that the Recipient Agreement, by which the deductions were authorised by the teachers, was not a "salary packaging arrangement" within the meaning of the Agreements, and thus the deductions were not permitted under s 324(1)(b). Regarding s 324(1)(d), the court held that the Ministerial Order, which authorised the deductions, was not inconsistent with the Agreements and was not made in excess of power. However, the court found that the deductions were "unreasonable in the circumstances" and thus rendered of no effect by s 326(1). The court found that the Ministerial Order could not be given partial effect and was inoperative in relation to any deductions made pursuant to a term rendered of no effect by s 326(1).

The court found that the DOECD contravened s 323(1) of the FW Act by failing to pay the teachers’ salaries in full. The court held that a requirement made by an employer could be contained in a contract for the purposes of s 325(1), and that the requirement made by the DOECD was "unreasonable in the circumstances" pursuant to s 325(1). The court held that a reduction in salary may be a "deduction" within the meaning of s 324(1).

ORDERS:
1. The proceeding be listed for directions at 9.30 am on 25 November 2015.