McLennan v Surveillance Australia Pty Ltd

[2005] FCAFC 46

Full Court of the Federal Court

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Interrogate

Catchwords

1. Workplace Relations
2. › Australian workplace agreements
3. › Variation of AWA
4. › Agreement between employer and employee imposing additional obligations on employee
5. › Whether agreement effectively varying AWA enforceable without approval by Employment Advocate
6. › Whether Act prohibits by implication alteration of rights and obligations under AWA by collateral agreement
7. › Workplace Relations Act 1996 (Cth), Parts VID, VIE, ss 170VF, 170VL, 170VPC, 170XA
1. Workplace Relations
2. › Australian workplace agreements
3. › No-disadvantage test
4. › Protective legislative framework
5. › Scope of matters dealt with by AWA
6. › Whether bond agreement concerning training and termination dealt with matters addressed in AWA
7. › Workplace Relations Act 1996 (Cth), ss 170VPB, 170VPC, 170XA
1. Contract
2. › Illegality and statutory prohibition
3. › Enforceability of contract made in contravention of statute
4. › Whether statute impliedly prohibits collateral agreement varying statutory instrument
5. › Whether protective purpose of statute renders agreement unenforceable

Quick Take

An agreement between an employer and employee that alters rights and obligations concerning a matter dealt with by an AWA, in a way that might disadvantage the employee, is unenforceable unless it has been submitted to and approved by the Employment Advocate as a variation agreement under the Workplace Relations Act 1996 (Cth). The matters dealt with by an AWA should not be viewed narrowly for this purpose. A bond agreement requiring repayment of training costs, where training and termination are addressed by the AWA, constitutes such a variation.