Yu v ACT Education Directorate

In Yu v ACT Education Directorate, the applicant brought claims against her employer for alleged breaches of the Fair Work Act 2009 (Cth) and the ACT Public Sector Education and Training Directorate (Teaching Staff) Enterprise Agreement 2014-2018. The applicant, an employee, alleged that her employer had taken adverse action against her for exercising her workplace right under section 343(1)(a) of the Fair Work Act, specifically when she refused to follow certain instructions due to concerns about her health and safety. She also claimed that her employer had contravened section 50 of the Fair Work Act by placing her in unsuitable positions, and had failed to pay her final entitlements as required by section 44 of the Fair Work Act. The matter was heard by the Federal Circuit and Family Court of Australia (Division 2) and subsequently determined on the papers after the trial was adjourned part-heard.

The court was required to decide several legal issues, including whether the applicant was exercising a workplace right when she refused to follow her employer's directions, whether her employer had breached the enterprise agreement by placing her in unsuitable positions, and whether the employer had contravened the Fair Work Act by failing to pay her final entitlements. Additionally, the court had to consider whether the primary judge erred in failing to make findings on the evidence presented before him, and whether the observations and preliminary findings made by the primary judge had any bearing on his ultimate conclusions.

The court found that the applicant's claims for adverse action, failure to pay final entitlements and some of the enterprise agreement breaches were not substantiated. However, the court did find that the employer had breached the enterprise agreement by placing the applicant in unsuitable positions, and this breach constituted an adverse action under section 343(1)(a) of the Fair Work Act. The court also found that the primary judge had erred in not making findings on the evidence presented before him, and that the observations and preliminary findings made by the primary judge had no bearing on his ultimate conclusions. Consequently, the appeal was allowed, and the matter was remitted to the Federal Circuit and Family Court of Australia (Division 2) for the determination of appropriate remedies.

The final orders of the court were that the appeal be allowed, the earlier order be set aside, and the applicant's claims for adverse action, failure to pay final entitlements and some of the enterprise agreement breaches be dismissed. The claim for breach of the enterprise agreement by placing the applicant in unsuitable positions was allowed, and the matter was remitted to the Federal Circuit and Family Court of Australia (Division 2) for the determination of appropriate remedies. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.