
The fall-out from Qantas
The industrial relations world is still coming to terms with the sheer scale of the Federal Court’s decision, imposing a $90 million penalty on the company.
On 5 September 2025, the long-awaited decision in FWO v Woolworths Group Limited; FWO v Coles Supermarkets Australia Pty Ltd [2025] FCA 1092 was delivered by Justice Perram.
The decision uproots the standing practice many employers have adopted in annual salary arrangements and will likely see a spate of underpayment and class action claims as lawyers feast on contractual salary arrangements that may no longer be compliant with the Fair Work Act.
The decision states that Woolworths and Coles could not pay employees an annual salary that allowed them to rely on above-award salary payments made in some pay cycles to satisfy award- payment obligations in other pay cycles where the salary paid may not have been sufficient to meet award obligations.
That is, the salary paid each pay cycle had to meet or exceed the award obligations in that same pay cycle. Other salary payments made during the year must be disregarded.
Employers accordingly need to ensure whatever weekly/fortnightly/monthly salary is set for an employee is sufficient to satisfy their award entitlements in that pay cycle, each and every time.
It is not good enough that an employee may be ‘better off overall’, the periodic salary payments must be enough to cover entitlements every pay cycle.
Both Woolworths and Coles relied on contract clauses that indicated that the annual salary employees received was intended to satisfy all the employees’ entitlements under the NES and General Retail Industry Award 2020 (Award) over the course of a 26 week period.
The employers argued that this meant that over-Award payments made in some pay cycles could be relied upon to satisfy Award obligations that arose in other pay cycles. In this way, a single salary could be struck to meet the fluctuations in hours and pay entitlements that arise when employees work differing hours over the course of a year.
Such an arrangement (which is extremely common) is particularly important to address seasonal fluctuations in work. By way of example, if employees work a larger number of hours over the Christmas trading period, the ‘buffer’ of above-Award salary payments made over the rest of the year was intended to ensure that the employee’s salary payment during the Christmas period remains Award-compliant.
Perram J found that this arrangement was not compliant with the Fair Work Act 2009 (FW Act). He stated that ‘pooling’ overpayments over some pay periods to then satisfy payment obligations in a different pay period constituted an “accounting abstraction” which did not constitute “payment” capable of satisfying the FW Act’s requirement to pay award entitlements in money and in full.
Whilst the specific Woolworths and Coles contract salary clauses failed to satisfy their obligations across different pay periods, Perram J was clear that any attempt to redraft the clause would likely also fail:
This finding suggested that contractual ‘set-off’ across pay periods would never be possible.
Curiously, the Decision departs from the approach the Full Court of the Federal Court took to the same issue in April 2025.
In Corporate Air Charter Pty Ltd v Australian Federation of Air Pilots [2025] FCAFC 45, the Full Court found that an employer could rely on salary payments made over the course of a year to offset against Award entitlements that arose in other pay periods within the same year.
This is the very type of practice that Perram J has now described as impermissible.
There is no reference to the Air Charter decision in Perram J’s judgement which suggests that the case may not have been drawn to his Honour’s attention.
What now remains is an inconsistency in the caselaw which will require further clarification, possibly on appeal (if the parties appeal).
Perram J also found Woolworths and Coles to be in breach of record keeping obligations because the employers did not keep records of every time the employees worked overtime hours under the Award, or hours that otherwise attracted separate loadings or penalty payments.
This type of record-keeping failure is very common amongst employers that engage employees on annual salaries.
He further found that the Kronos rosters Woolworths kept and its clocking data for employees could not constitute a record of overtime for the purposes of the FW Act. This is because the two sets of data needed to be reconciled in order to determine the overtime hours worked.
Perram J found that overtime records needed to be in a form readily accessible to a Fair Work inspector (as per the FW Regulations) and accordingly providing data that needed to be “interrogated” in order to work out overtime hours was not a record of overtime.
In some awards, annualised wage arrangements provide a way of relying upon a yearly salary to satisfy employees’ award entitlements over the course of a whole year. These arrangements have been notoriously underutilised due to difficulties employers have had in implementing all of the steps necessary to set up an award annualised wage arrangement. However, some employers might consider using these types of arrangements going forward for employees with fluctuating hours. Employers will need to ensure all the various steps outlined in the relevant award clause are complied with if they are to utilise an award annualised wage arrangement.
The decision sets employers on a number of routes:
If you have any questions contact us at at info@ablawyers.com.au or call 1300 565 846.
Stay Informed
Subscribe to our mailing list to get the latest news, webinar invites, & more.
All fields are required