Bevis v VA Holdings Pty Ltd trading as Granton Homes & Ors

In the Federal Circuit and Family Court of Australia, Judge Manousaridis considered an application for pecuniary penalties against VA Holdings Pty Ltd, trading as Granton Homes, and its director, for alleged contraventions of section 45 of the *Fair Work Act 2009* (Cth). The dispute centred on whether the employer had contravened an applicable award and whether the director was involved in any such contravention.

The court was required to determine the admissibility of evidence relating to communications made during a conciliation conference convened by the Fair Work Commission, specifically a document titled "Terms of Settlement" and subsequent communications between individuals. The central legal issue was whether section 131(1) of the *Evidence Act 1995* (Cth), which generally renders inadmissible communications made in an attempt to negotiate a settlement, precluded the admission of this evidence. The court also had to consider whether the employer had contravened section 45 of the *Fair Work Act 2009* (Cth) and the extent of the director's involvement.

Judge Manousaridis ruled that the "Terms of Settlement" and subsequent communications were admissible. The court reasoned that section 131(1) of the *Evidence Act 1995* (Cth) did not apply because the evidence was relevant to proving the existence and terms of an agreement, which was a material issue in the proceeding. Specifically, one of the amounts claimed to be unpaid in contravention of section 45 was an amount allegedly agreed upon in the conciliation conference. The existence and terms of this agreement, and the parties' subsequent conduct influenced by it, were relevant to the assessment of penalties. The "Terms of Settlement" stipulated that VA Holdings would pay Ms Bevis $7,292.30, taxed as normal weekly wages, within seven days of signing, in addition to other monies paid, and included mutual releases for all claims arising from her employment.