Fair Work Ombudsman v D'Adamo Nominees Pty Ltd (No.4)

The Federal Circuit Court of Australia heard an application by the Fair Work Ombudsman (FWO) against D’Adamo Nominees Pty Ltd. The FWO alleged that D’Adamo Nominees contravened the *Workplace Relations Act 1996* (Cth) by underpaying Steven Motherwell, who the FWO claimed was employed as an electrical assistant and then as an apprentice under the *Electrical Contracting Industry Award 1978 (WA)*, which had become a Notional Agreement Preserving a State Award (NAPSA) from 27 March 2006. The FWO sought penalties and remedies for these alleged underpayments.

The central legal issues before the Court were whether Mr Motherwell was an employee of D’Adamo Nominees, and if so, whether he was employed as an electrical assistant or an apprentice during the relevant periods. The Court was also required to determine whether the *Industrial Training Act 1975* (WA) applied to Mr Motherwell’s employment, or if it was excluded by the *Workplace Relations Act 1996* (Cth). Finally, the Court needed to ascertain whether the *Electrical Contracting Industry Award 1978 (WA)* NAPSA applied to D’Adamo Nominees and Mr Motherwell, and if so, from what date.

The Court found that D’Adamo Nominees had admitted Mr Motherwell was an employee in its Defence, and refused to allow this admission to be withdrawn due to the lateness of the attempt and the prejudice it would cause the FWO. However, the Court ultimately concluded that Mr Motherwell was not employed as an electrical assistant, as the evidence did not establish that his major and substantial duties involved directly assisting another employee covered by the award. Furthermore, the Court determined that Mr Motherwell was not validly registered as an apprentice under the *Industrial Training Act 1975* (WA) because the apprenticeship agreement was not "duly executed" as required by the Act, rendering it void ab initio. Consequently, the Court found that the *Electrical Contracting Industry Award 1978 (WA)* NAPSA did not apply to Mr Motherwell.

As a result of these findings, the Court dismissed the FWO's application. The Court concluded that Mr Motherwell was not employed as an electrical assistant, nor was he a registered apprentice, meaning the relevant award did not apply to his employment. Therefore, the claims for underpayment based on the award could not be substantiated.