FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Harvey v Palcove Pty Ltd [2025] FedCFamC2G 915
File number: MLG 2533 of 2022 Judgment of: JUDGE FORBES Date of judgment: 13 June 2025 Catchwords: CONSUMER LAW – contract of employment – whether respondent made misleading or deceptive representations in relation to terms of engagement – whether written terms superseded alleged oral representations
INDUSTRIAL LAW – Fair Work Act – alleged contravention of industrial instrument – claim for overtime under applicable enterprise agreement – where applicant claims to have worked over 60 hours per week – whether applicant can establish hours actually worked – whether salary paid to applicant contemplates and compensates for additional hours – whether respondent authorised the working of additional hours – operation of set-off clause in contract of employment
INDUSTRIAL LAW – adverse action – where applicant claims to have made complaints and inquiries about employment – whether applicant exercised workplace rights within meaning of Fair Work Act – where applicant dismissed from employment after involvement in workplace incident – whether applicant dismissed for reasons which included the exercise of workplace rights – inquiry into the subjective reasons of decision-maker – whether employer has discharged the statutory presumption under s 361 of the Fair Work Act
Legislation: Competition and Consumer Act 2010 (Cth) ss 236; ss 18, 31 to sch 2
Fair Work Act 2009 (Cth) ss 50, 97, 340, 341, 342, 360, 361, 557C, 570
Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases cited: Alam v National Australia Bank [2021] FCAFC 178
Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500
Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243
David Walker v Salomon Smith Barney Securities Pty Limited [2003] FCA 1099
D’Sylva v Ellenbrook Family Medical Centre Pty Ltd [2021] FedCFamC2G 319
Ermel v DuluxGroup (Australasia) Pty Ltd (No.2) [2015] FCA 17
Evans v Braddock [2015] NSWSC 249
General Motors-Holdens Pty Ltd v Bowling (1976) 12 ALR 605
Khiani v Australian Bureau of Statistics [2011] FCAFC 109
Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369
Logan v Otis Elevator Company Pty Limited (2001) 107 IR 253
Mealey v Power [2015] NSWSC 1678
Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908; (2013) 238 IR 307
Ramos v Good Samaritan Industries [2013] FCA 30
Sabapathy v Jetstar Airways (2021) 283 FCR 348
Short v Ambulance Victoria [2015] FCAFC 55; (2015) 249 IR 217
Shum v Southern Migrant and Refugee Centre Inc (No.3) [2025] FedCFamC2G 393
Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46
Transport Workers’ Union of Australia v Qantas Airways Ltd [2021] FCA 873
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- Case
- [2025] FedCFamC2G 915
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining if Palcove made misleading or deceptive representations regarding Mr Harvey's employment terms. Mr Harvey alleged that he was promised a certain salary and benefits, which were not honoured. The court examined the recruitment process and the communications between Mr Harvey and Palcove's recruitment agency, Frontline Retail Recruitment. Additionally, the court had to decide whether the written terms of employment superseded any alleged oral representations.
The court found that Palcove's recruitment agency provided a position description and salary band, which were relied upon when advertising positions. However, the court needed to establish whether there were additional oral representations that were not honoured. The court also had to assess whether the written contract of employment superseded these alleged oral representations. The court considered the evidence provided by both parties and concluded that the written contract terms were clear and binding.
Further, the court examined the claim under the Fair Work Act concerning overtime pay. Mr Harvey alleged that he worked over 60 hours per week but was not compensated accordingly. The court had to determine whether Mr Harvey could establish the hours he actually worked and whether his salary compensated for these additional hours. The court found that while Mr Harvey claimed to have worked excessive hours, there was insufficient evidence to substantiate these claims. The court also examined whether Palcove authorised the working of additional hours and the operation of the set-off clause in the contract of employment.
Finally, the court addressed the issue of adverse action under the Fair Work Act. Mr Harvey alleged that he was dismissed for exercising his workplace rights. The court had to determine whether Mr Harvey exercised his workplace rights and whether his dismissal was related to these exercises. The court conducted an inquiry into the subjective reasons of the decision-maker and concluded that Palcove had not discharged the statutory presumption under section 361 of the Fair Work Act. The court found that Mr Harvey's dismissal was not related to the exercise of his workplace rights.
In conclusion, the court found in favour of Palcove on all counts. The court held that Palcove did not make misleading or deceptive representations, that there was no contravention of the Fair Work Act concerning overtime pay, and that Mr Harvey's dismissal was not related to the exercise of his workplace rights. The court dismissed Mr Harvey's claims and ordered him to pay Palcove's costs.
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