Recent Cases

Wardman v Macquarie Bank Limited [2023] FCAFC 13 (17 February 2023) (Bromberg, Wheelahan and Snaden JJ)


INDUSTRIAL LAW — appeals and cross-appeals from five related decisions of the Federal Circuit Court of Australia in proceedings brought by former employees of Macquarie Bank Ltd (Bank) — where employees were remunerated by commission and a fixed monthly Basic Cost Responsibility (BCR) payment — where BCR included a fixed monthly payment to each employees — where employees claimed contraventions of the Banking, Finance and Insurance Award 2010 and the NES because they were remunerated by commission only and did not receive any wages or salary — where employees claimed BCR payments were advances on commission only — where primary judge found that Bank did not contravene NES or Award provisions regarding wages or salary, but failed to meet obligations regarding annual leave, public holidays and annual leave loading — whether monthly amounts paid to employees pursuant to contractual obligation to make BCR payments were effective to discharge concurrent statutory entitlements arising by operation of the Fair Work Act 2009 (Cth) — characterisation of agreed purpose of payments under relevant employment agreements — consequences, if any, of failure to engage annual salary or flexibility provisions in Award — whether primary judge erred in assessment of penalties — appeal allowed in part

CONTRACTS — STATUTORY INTERPRETATION — where several employees had entered into deeds of release with the Bank on termination of employment — whether deeds of release were effective to preclude employees from enforcing statutory rights under Fair Work Act — circumstances in which statutory entitlements may be bargained away in reaching a compromise of a dispute — consideration of Grant v John Grant & Sons Pty Ltd [1954] HCA 23; 91 CLR 112 and Felton v Mulligan [1971] HCA 39; 124 CLR 367

INTEREST — whether primary judge erred in ordering, without giving reasons, that interest should be calculated from commencement of proceedings rather than when amounts became due and payable

PRACTICE AND PROCEDURE — whether Bank was required, pursuant to Federal Circuit Court Rules 2001 (Cth) or the Federal Court Rules 2011 (Cth) to pay the amounts ordered within 14 days of the date of orders — where both parties conceded primary judge erred — error caused primary judge’s assessment of penalty to miscarry

INDUSTRIAL LAW — whether primary judge made other sundry errors in the assessment of penalties