Construction, Forestry, Maritime, Mining and Energy Union v Fremantle Port Authority

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) filed an application against the Fremantle Port Authority (FPA) concerning the alleged contravention of section 50 of the Fair Work Act 2009 (Cth). The dispute centered on the interpretation and application of the enterprise agreement's payment provisions, specifically whether the employees were entitled to be paid according to the 'ordinary wages method' or the 'average annualised wage'. The Union alleged that the FPA underpaid the employees in some fortnights and overpaid them in others by not adhering to the ordinary wages method.

The court was required to decide whether the contracts of employment, which specified payment of an annual salary, constituted an agreement to be paid an average annualised wage under the enterprise agreement. Additionally, the court had to determine if the FPA could offset overpayments against underpayments, and whether the employees suffered a compensable loss, warranting compensation as an appropriate order. The court also examined the principles relevant to the construction of enterprise agreements and whether estoppel could prevent the Union or employees from asserting that the contracts did not constitute an agreement under the average annualised wage provisions.

The court concluded that the employment contracts satisfied the requirements under the enterprise agreement for an agreement to be paid an average annualised wage. As a result, the Union's claim failed. The court rejected the Union's argument for setting off payments across different fortnights, stating that such payments were made to discharge different obligations. The court found that it was not appropriate to order compensation and dismissed the application. The FPA was permitted to apply for costs orders within specified timelines, and the matter of costs was to be determined on the papers.