s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - no dismissal - jurisdictional objection dismissed

• [1] This is an edited version of a decision which I delivered ex tempore on the transcript on 24 April 2025. The decision has been edited for clarity, to include a brief factual background and to include the full extract from the case cited.

• [2] After dismissing the jurisdictional objection, the matter was successfully resolved in private conciliation.

• [3] The Applicant was employed as a casual General Labourer from 16 January 2025. The Applicant signed the employment contract on 12 December 2024.

• [4] The Applicant's rate of pay in the Contract of 12 December 2024 was said to be made up of the following components:

• Base rate: $23.98 per hour. I note this is above the award rate for a

• Casual loading: 25% of Base Rate
• Project allowance: 30% of Base Rate (not subject to superannuation).

• [5] This gives a total hourly rate of $37.17 per hour plus superannuation. This total hourly rate, together with the breakdown, was written in the Schedule of the Contract and the Applicant signed an acknowledgement, saying, "I have read and accept the Base Rate Renumeration Schedule above."

• [6] The contract does not state that the employer has a right to unilaterally vary the project allowance, although it does imply that the project allowance may be varied if the employer pays for an employee's accommodation for the project.

• [7] The Applicant moved to Mildura to start work after signing the contract.

• [8] The Applicant was given his first for the period of 15 January 2025 to 21 January 2025. The payslip noted that the hourly rate was $29.98 plus a project allowance of 15% giving a total hourly rate of $34.48 per hour plus superannuation.

• [9] The Applicant queried this payslip by email with the HR team for the Respondent, on 26 January 2025, noting that the total hourly rate stipulated in the contract was $37.17 per hour.

• [10] On 3 February 2025, the Respondent responded as follows:

Thank you for email, and I appreciate you reaching out for more detail.

As explained over the phone, you had signed your contract in early December.

At that time, there were no changes to the pay structures.

Fast forward to the end of December, changes had been made to our Project Percentages and as a result, there was a slight decrease in rates for the whole company.

I apologise for not getting a new contract to you before your commencement date.

You are being paid at this restructured rate - $29.98 (base rate including casual loading) + 15% (project allowance) = $34.48 per hour.

If you choose not to sign the terms and conditions outlined within the agreement, your employment with Elite Netting will be forfeited, resulting in the termination of your employment.

I am happy to assist with any further questions you may have.

• [11] The Applicant chose not to sign the new employment contract with a total rate of pay fo $34.38, as it was a lower rate of pay.

• [12] The Applicant argues that providing him with a new employment contract to continue his employment was essentially an ultimatum forcing him to resign.

• [13] I note that there is an ancillary issue which arises being whether the Respondent repudiated the contract by unilaterally varying the rate of pay.

• [14] Noting that the Applicant did not make this argument, I specifically put this issue to the Respondent in the hearing, that by unilaterally deciding to pay the Applicant less than rate he had agreed to, for work he had already performed, the Respondent had breached a fundamental term of the contract.

• [15] There is nothing in the employment contract which allows the employer to unilaterally vary the project allowance.

• [16] To their credit, the Respondent rightly admits that there was a mistake on their part with respect to the Applicant and that he was overlooked in the process of restructuring. This mistake has since been rectified in conciliation.

• [17] Section 386(1) of the Act relevantly provides that a person has been dismissed if:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

• [18] The test for contractual repudiation is set out in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115 at 135 to 136 where the plurality judgment of the High Court stated:

The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party's obligations. It may be termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it. Secondly, it may refer to breach of contract which justifies termination by the other party. It will be necessary to return to the matter of classifying such breaches. Campbell J said this was the sense in which he would use the word "repudiation" in his reasons. There may be cases where a failure to perform, even if not a breach of an essential term (as to which more will be said), manifests unwillingness or inability to perform in such circumstances that the other party is entitled to conclude that the contract will not be performed substantially according to its requirement.

• [19] This is repudiation is of the second kind referred to by High Court - a breach which is fundamental, and which goes to the root of the contract. The rate of pay is a fundamental term of the Contract because the Applicant bargained for that rate of pay and likely would not have signed the contract, or moved his family to Mildura, if that term was not agreed.

• [20] By paying the Applicant at a lower rate for work he had already performed, without informing him, the contract was repudiated. The Applicant did not accept the lower rate of pay and by not accepting, he accepted the Respondent's repudiation and the contract was ended at the initiative of the employer within the meaning of s.386(1)(a) of the Fair Work Act.

• [21] Therefore, the jurisdictional objection is dismissed and the Applicant is entitled to apply for general protections involving dismissal.

After finding that the Applicant was dismissed, I entered into private conciliation with the parties and the matter was resolved.

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