Can Employers Change Your Pay Without Agreement? Akmeemana v Murray [2009] NSWSC 979 and What It Means for Workers

Across Australia, one of the most contentious workplace issues is employers altering pay structures, commissions, or incentives without proper agreement. The decision in Akmeemana v Murray (2009) 190 IR 66; [2009] NSWSC 979 is a critical authority confirming that employers cannot unilaterally change fundamental terms of an employment contract under the guise of “policy updates.”

For workers facing commission disputes, unpaid wages, or adverse changes to remuneration, this case provides strong support for enforcing contractual entitlements.

Case Overview: Commission Structure and Sudden Policy Change

The employee in this matter was engaged as a consultant under a written employment contract which included:

• A base salary

• A commission structure, calculated according to a defined formula

Importantly, the contract stated that:

Any changes to the payment structure would be formally agreed and signed by both parties, and then added as an appendix to the contract.

However, shortly before the employee resigned:

• The employer introduced a new internal policy

• This policy allowed the employer to withhold commission payments

• The employee did not agree to this change

• Upon departure, the employer withheld $50,000 in commission

The Legal Issue: Can Policy Override Contract?

The central question before the Supreme Court of New South Wales was:

Can an employer rely on a workplace policy to fundamentally alter an employee’s contractual entitlements without agreement?

This issue arises frequently in modern employment relationships where employers attempt to rely on “policy frameworks” to modify pay, bonuses, or conditions.

The Decision: Contract Prevails Over Unilateral Policy

The Court found decisively in favour of the employee.

Can Employers Change Your Pay Without Agreement? Akmeemana v Murray [2009] NSWSC 979 and What It Means for Workers

Key Findings:

• The change to the commission structure was substantial and fundamental

• It effectively altered the core terms of the employment contract

• The employee had not agreed to the variation

• The employer could not rely on policy mechanisms to override contractual rights

Outcome:

• The employee was entitled to the full commission payment

• The employer’s attempt to withhold $50,000 was unlawful

Critical Legal Principle: Policies Cannot Override Contractual Rights

This case reinforces a fundamental principle in employment law:

An employment contract cannot be varied unilaterally by an employer through policy changes.

Even where a contract allows for policies to exist:

• Policies must be consistent with the contract

• Policies cannot be used to undermine or remove core entitlements

• Any substantial variation requires clear agreement

Relevance to Fair Work Claims and Workplace Disputes

This decision is highly relevant to workers dealing with:

• Unpaid commissions or bonuses

• Changes to remuneration structures

• Reduction in earnings through policy changes

• Constructive dismissal claims

• General protections disputes involving adverse action

Key Strategic Insight:

Where an employer:

• Introduces a new policy affecting pay

• Fails to obtain agreement

• Applies it retrospectively or opportunistically

There may be grounds to argue:

• Breach of contract

• Unlawful deduction of wages

• Adverse action under the Fair Work Act 2009 (Cth)

Common Workplace Scenarios

This principle frequently arises in:

• Sales roles involving commission structures

• Bonus or incentive schemes

• KPI-based remuneration models

• Executive or consulting contracts

• “Discretionary” payment clauses being misused

Employers often attempt to characterise changes as “policy updates,” when in reality they are substantial contractual variations.

Contract vs Policy: Understanding the Distinction

Contractual Terms:

• Legally binding

• Cannot be changed without mutual agreement

• Enforceable through courts or tribunals

Workplace Policies:

• Generally non-contractual

• Designed to guide conduct and procedures

• Cannot override express contractual rights

Practical Guidance for Workers

If your employer has:

• Reduced or withheld commissions

• Changed bonus structures without agreement

• Introduced policies affecting your pay

• Refused to honour agreed remuneration

You should:

1. Review your employment contract carefully

2. Identify whether the change is fundamental

3. Assess whether you agreed to the variation

4. Seek professional advocacy immediately

Contact MYUNION – Protect Your Workplace Rights

If you are experiencing issues with:

• Unpaid commissions or wages

• Changes to employment conditions

• Contract disputes

• Unfair or unlawful employer conduct

MYUNION provides experienced advocacy in:

• Fair Work Commission matters

• General protections applications

• Employment and human rights disputes

📧 gethelp@myunion.au📞 1300 MYUNION🌐 www.myunion.au

Final Observation

The Akmeemana v Murray decision draws a clear boundary:

Employers cannot rewrite your contract through policy.

Where remuneration is concerned, the law requires clarity, agreement, and fairness. Any attempt to sidestep those requirements exposes the employer to significant legal risk—and creates strong grounds for workers to recover what they are owed.

If your pay has been altered without your consent, there is a high likelihood that your rights have been breached.