Harpham v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Mr Harpham brought an application against the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) in the Fair Work Commission, alleging contraventions of sections 44 and 340 of the Fair Work Act 2009 (Cth). He sought compensation, declarations, and penalties for the alleged contraventions, along with an order under sections 164 and/or 164A of the Fair Work (Registered Organisations) Act 2009 (Cth) directing the performance of certain provisions of the registered rules of the Electrical, Energy and Services Division of the CEPU. The primary issue for the Commission was whether the salary reduction and the failure to pay a retirement allowance constituted a contravention of section 340 of the Fair Work Act, and if not, whether these actions constituted a breach of Mr Harpham's contract of employment. The Commission also needed to determine if Mr Harpham was underpaid in respect of his redundancy entitlements or pay in lieu of notice under the Fair Work Act.

The Fair Work Commission found that the salary reduction and the failure to pay a retirement allowance did not contravene section 340 of the Fair Work Act. However, the salary reduction did constitute a breach of Mr Harpham's contract of employment. The failure to pay the retirement allowance did not constitute a breach of the contract. Furthermore, the Commission found that Mr Harpham was not underpaid in respect of his redundancy entitlements or pay in lieu of notice. The application was allowed in part, with the CEPU ordered to pay Mr Harpham contractual damages, the amount of which was to be agreed between the parties or, if they could not agree, determined through written submissions. The proceeding was otherwise dismissed.

The orders of the Commission were as follows: (1) The application was allowed in part; (2) The CEPU was to pay Mr Harpham contractual damages, the sum to be agreed upon by the parties or, if they could not agree, determined through written submissions within 14 days of the orders; (3) The proceeding was dismissed in all other respects.