Harbour City Real Estate Pty Ltd t/as Re/Max Harbour City Real Estate (ACN 111 210 023) v Cargill (No 3)

The appeal was brought by Harbour City Real Estate Pty Ltd t/as Re/Max Harbour City Real Estate (ACN 111 210 023) and Ms Robertson against the decision of the Industrial Magistrate, which required them to pay Ms Cargill a sum of $40,014.54. The primary issue in the appeal was the interpretation and application of an Australian Workplace Agreement (AWA) and an undertaking given by Harbour City and Ms Robertson to the Office of the Employment Advocate (OEA). The dispute centered around whether Ms Cargill, who was employed on a commission-only basis, was entitled to additional payments under the AWA and the undertaking.

The legal issues included whether the learned Magistrate had applied the correct law in interpreting the AWA and the undertaking, and whether there had been a breach of the Workplace Relations Act 1996 (WR Act). The appeal grounds contested the Magistrate's interpretation of the undertaking, the application of the ‘no-disadvantage’ test, and the retrospective application of the post-reform WR Act provisions.

The court found that the learned Magistrate had erred in applying the wrong law and in interpreting the undertaking. The court held that the Magistrate had misapplied the ‘no-disadvantage’ test and had incorrectly applied the post-reform WR Act provisions to the pre-reform situation. Additionally, the court found that the Magistrate had failed to make a positive finding regarding the employer's intention when the undertaking was signed. As a result, the appeal was allowed, the orders made by the Industrial Magistrate were set aside, and the claim was dismissed. The court ordered that any further orders or submissions reflecting these conclusions be filed within 21 days.