Australian Education Union v Yooralla [2019] FCA 1511

Australian Education Union v Yooralla [2019] FCA 1511

The primary judge erred in concluding that instruction or training was not a major or principal aspect of Ms Legg's employment. On the evidence, her programs identified skills to be learned, set methods for acquiring them, recorded progress, and assessed whether skills had been acquired; the personal care she provided was incidental. Her Transitional Minimum Wage was therefore governed by the Disability Services Award (Victoria) 1999, not the Attendant Care – Victoria Award 2004. However, under the Modern Award, the specific disability services descriptors govern over general descriptors, and Ms Legg's major and substantial employment was implementing client skills and activities...

Jurisdiction
Australia
Judgment Date
17 September 2019
Procedural Posture
Appeal From a Federal Circuit Court Decision Dismissing an Application for Declaratory and Ancillary Relief Concerning Alleged Underpayment Under Industrial Awards / Appeal; Reasons Delivered and Parties Directed to File Agreed Orders or Submissions on Final Relief
Outcome
Appeal allowed in part: the Court found error in the pre-modern award classification and held that the Disability Services Award (Victoria) 1999 applied, but upheld the Level 2 classification under the Modern Award; final relief was left to be determined after further orders or submissions.
Legal Topics
['construction of Awards' 'pre Modern Award Classification' 'modern Award Classification' 'disability Services Employment' 'alleged Underpayment' 'equal Remuneration Payment']
['industrial Law' 'employment and Industrial Relations' 'fair Work'] ['construction of Awards' 'pre Modern Award Classification' 'modern Award Classification' 'disability Services Employment' 'alleged Underpayment' 'equal Remuneration Payment']

Case Brief

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Procedural Posture

Appeal From a Federal Circuit Court Decision Dismissing an Application for Declaratory and Ancillary Relief Concerning Alleged Underpayment Under Industrial Awards / Appeal; Reasons Delivered and Parties Directed to File Agreed Orders or Submissions on Final Relief

Legal Issues

  1. 1 ['Whether Ms Legg was an "instructor" under the Disability Services Award (Victoria) 1999 or an "attendant carer" under the Attendant Care – Victoria Award 2004 for the purposes of her Transitional Minimum Wage.' 'Whether Ms Legg was a Social and community services employee level 2 or level 3 under the Social, Community, Home Care and Disability Services Industry Award 2010.' "Whether the primary judge misunderstood or misapplied the test for determining the appropriate award classification for Ms Legg's work."]

Ratio Decidendi

The primary judge erred in concluding that instruction or training was not a major or principal aspect of Ms Legg's employment. On the evidence, her programs identified skills to be learned, set methods for acquiring them, recorded progress, and assessed whether skills had been acquired; the personal care she provided was incidental. Her Transitional Minimum Wage was therefore governed by the Disability Services Award (Victoria) 1999, not the Attendant Care – Victoria Award 2004. However, under the Modern Award, the specific disability services descriptors govern over general descriptors, and Ms Legg's major and substantial employment was implementing client skills and activities...

Court Disposition

Appeal allowed in part: the Court found error in the pre-modern award classification and held that the Disability Services Award (Victoria) 1999 applied, but upheld the Level 2 classification under the Modern Award; final relief was left to be determined after further orders or submissions.

Orders

  • ['Within 14 days the parties are to file orders by agreement giving effect to the reasons for judgment or, if no agreement is reached, submissions of no more than four pages in length as to the form of final relief to be ordered.']