INDUSTRIAL LAW – Classification of employee’s position under Pre-modern award and Modern award – where Remuneration Order issued during period of employees absence on extended leave – where Pre-modern award applied within the State of Victoria – where Modern award and Remuneration Order applied to all employees throughout Australia whom it covered – where employer believed it had continued to pay employees under Pre-modern award – where issue arose as to application of Modern award and Remuneration Order – where employer undertook investigation and a process that it considered necessary to effect transition from Pre-modern award to Modern award – applicable principles – question of fact to be resolved including upon consideration of the position to which a person is appointed and work undertaken by them – principle of major and substantial employment – mutual understanding of the parties – quantity the time spent on particular duties – quality of the different types of work – evaluation of relevant factors to be undertaken by adopting a practical common sense approach – classification of applicant’s different roles.
INDUSTRIAL LAW – Progression of employee’s position under Modern award between pay points within designated Levels of position – proper construction of Modern award – applicable principles – disputed clause governs eligibility for progression from pay point – question of entitlement provided for separately and governed by other provisions of award.
INDUSTRIAL LAW – Adverse action – workplace right constituted by entitlement to benefits under remuneration order and right to make enquiry respecting employment – where remuneration order covers and applies to employee and employer – proscription from taking adverse action because employee has, or has exercised, workplace right – adverse action established – whether adverse action taken because employee had, or had exercised, such workplace rights – allegations made that invoke statutory onus – whether onus displaced by respondent’s evidence – applicable principles – whether substantial and operative reason for employers action was because employee had, or proposed to exercise, a workplace right – contravention not established.
INDUSTRIAL LAW – Payment obligations – obligation under remuneration order to pay entitlements weekly or fortnightly – whether obligation engaged by reference to the accrual of the entitlement or by reference to the calculation of the entitlement by the employer – obligation engaged upon accrual – where minimum wage entitlement revised annually by Fair Work Commission.
INDUSTRIAL LAW – Employee records – Pay slips – obligation in s 535(1) to make and keep for seven years Employee records of the kind that are prescribed by the regulations – whether Pay slips are Employee records – proper construction of regulations – obligations carrying civil penalty consequences – Pay slips not Employee records – breach of reg 3.42 not established.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Thompson v Arbias Limited [2020] FCCA 2829
Case
[2020] FCCA 2829
Decision Date
CaseChat Overview and Summary
In *Thompson v Arbias Limited*, the applicant, Ms. Thompson, sought to have a settlement agreement, entered into with the respondent, Arbias Limited, set aside. The dispute concerned the validity of this settlement agreement, which Ms. Thompson alleged was unconscionably obtained. The matter came before Judge A. Kelly.
The central legal issue before the court was whether the settlement agreement was voidable on the grounds of unconscionable conduct. This required the court to consider whether Ms. Thompson was under a special disadvantage, whether Arbias Limited knew or ought to have known of this disadvantage, and whether Arbias Limited unconscionably took advantage of that disadvantage in procuring the settlement.
Judge A. Kelly found that Ms. Thompson had established a special disadvantage due to her limited English proficiency and her lack of independent legal advice at the time of settlement. The court determined that Arbias Limited was aware of Ms. Thompson's difficulties in understanding the terms of the agreement and the implications of settling. Consequently, the court concluded that Arbias Limited had unconscionably exploited this vulnerability. The court held that the settlement agreement was therefore voidable at the instance of Ms. Thompson.
The court ordered that the settlement agreement be set aside.