Catchwords:

INDUSTRIAL LAW – Enterprise Agreements – appeal by two teachers (school employees) against decision to dismiss an application for back pay for increases to their pay and entitlements under an enterprise agreement commencing during their employment but coming into effect after their respective resignations – where employees sought declarations under s 545 of the Fair Work Act 2009 (Cth) (FWA) that the employers contravened s 50 of the FWA by failing to pay them arrears of salary and related superannuation contributions for the period between the commencement date of the agreement and the date of their respective resignations – whether the construction of the respective commencement clauses, read with ss 51 – 54 of the FWA, means that an entitlement to arrears only applies to employees still employed when the agreement comes into operation – where under s 58(1) FWA only one enterprise agreement can apply to an employee at a particular time – where an enterprise agreement does not give a person an entitlement unless the agreement applies to the person s 51 (2) FWA – where an enterprise agreement may cover an employee even though it does not yet apply to that employee in the sense of imposing obligations on the employee and the employer ALDI Foods Pty Ltd v Shop, Distributive & Allied Employees Association (2017) 262 CLR 593 considered – where an agreement term may have retrospective effect (eg a backdated wage increase) explanatory memorandum paragraph 196 of Bill to FWA considered – Vendrig v Ausgrid Pty Ltd [2021] FWCFB370, Battye v John Holland Pty Ltd (JHPL) t/as Territoria Civil [2019] FWCFB 8678 considered and Pooley v Commissioner of Police (2009) IR 273 distinguished

Held: employers under an obligation to pay back pay to “applicable employees” at the first pay period after the enterprise agreements came into effect – the appellants fell within the class of “applicable employees” – appeal allowed