2 key takeaways from recent Federal Court ruling in stockbroker claim

The Federal Court recently had to determine whether commission payments to a stockbroker could be set-off against the statutory entitlements of wages and leave loading, to which the stockbroker claimed he was owed under the Banking, Finance and Insurance Award 2010 and Fair Work Act 2009 (Cth) (Ord Minnett Holdings Pty Limited v Theodorou [2025]).

The Court’s verdict on the issue of set-off payments, and its advice about providing employees access to pay records, may provide insight to employers, especially those in the finance industry, on these issues.

Set-off payments

If an employer pays an amount to an employee in discharge of a contractual obligation, the employer may rely on that payment to set-off a concurrent statutory obligation to pay an amount to an employee. This depends on whether a reasonable person would consider there is a close correlation between the nature of the particular award obligation and the nature of the contractual obligation. It is not necessary that the same label by used for the payments. The terms of the employment contract don’t need to refer to the award or statutory obligations for payments made under the contract to satisfy those concurrent obligations.

In this case, the Court accepted that the employee was paid commission for the duties he performed. In paying those commissions pursuant to the employment agreement, the Court ruled there was sufficient correlation with amounts that would have been due to him under the Banking, Finance and Insurance Award 2010 and the Fair Work Act 2009 (Cth) to allow a set-off.

In the end, the set-off was not available in this particular case because the stockbroker was found not to be covered by the Banking, Finance and Insurance Award 2010.

Pay records

In its decision, the Court made a comment about the employer’s obligation under the Fair Work Regulations 2009 to give an employee access to pay records.

If the employee record is kept at the premises where the employee works or the former employee worked, the employer must make the copy available at the premises within 3 business days after receiving the request, or post a copy of the employee record to the employee or former employee within 14 days after receiving the request.

The employer in this case had outsourced payroll functions to an external provider and therefore resisted production of requested employee records relating to pay and leave because they were not held at the employer’s premises.

However, the employer could download incomplete pay slips for the employee from a cloud environment, but would need to contact the external provider to obtain the original documents so that the full record could be provided to the employee. The Court observed there was considerable force in the argument that documents existing in a cloud environment, which can be downloaded by the employer’s staff, are relevantly kept at the premises where the employee works or the former employee worked. However, because complete (and therefore non-misleading) records had to be obtained from the external service provider, the employee records relating to pay and leave were not held at the employer’s premises. Therefore, the employer did not breach the Fair Work Regulations 2009 by failing to provide the records.

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