Australian Nursing and Midwifery Federation v Barwon Health (No 2)
[2024] FedCFamC2G 540
•16 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Australian Nursing and Midwifery Federation v Barwon Health (No 2) [2024] FedCFamC2G 540
File number(s): MLG 2759 of 2022 Judgment of: JUDGE O'SULLIVAN Date of judgment: 16 May 2024 Catchwords: INDUSTRIAL LAW – Interpretation of an enterprise agreement – orders and declarations to be made to give effect to reasons – directions for penalty hearing. Legislation: Fair Work (Registered Organisations) Act 2009 (Cth)
Fair Work Act 2009 (Cth), Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016-2020
Cases cited: Australian Nursing and Midwifery Federation v Barwon Health [2024] FedCFamC2G 376 Division: Division 2 General Federal Law Number of paragraphs: 4 Date of hearing: 16 May 2024 Place: Melbourne Counsel for the Applicants: Mr J. McKenna Solicitor for the Applicants: Gordon Legal Counsel for the Respondent: Mr C. McDermott Solicitor for the Respondent: DLA Piper Australia ORDERS
MLG 2759 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THE AUSTRALIAN NURSING AND MIDWIFERY FEDERATION
First Applicant
LEAH SAMPSON
Second Applicant
AND: BARWON HEALTH
Respondent
ORDER MADE BY:
JUDGE O'SULLIVAN
DATE OF ORDER:
16 MAY 2024
THE COURT DECLARES THAT:
1.The respondent ('Barwon Health') contravened s.50 of the Fair Work Act 2019 ('the FW Act') by:
(a)failing to pay the second applicant ('Ms Sampson') her base hourly rate in the amount of $6,363.87 in accordance with clause 79.4 and Appendix 2 of the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016 - 2020 ('the 2016 Agreement');
(b)failing to pay Ms Sampson her Saturday and Sunday rates in the amount of $2,484.17 in accordance with clause 48.1 and clause 79.4 of the 2016 Agreement;
(c)failing to pay Ms Sampson shift allowances in the amount of $273.40 in accordance with clause 34(a) and clause 79.4 of the 2016 Agreement; and
(d)failing to make superannuation contributions for the benefit of Ms Sampson in the amount of $866.59 in accordance with clause 27.5 and clause 79.4 of the 2016 Agreement.
THE COURT ORDERS THAT:
2.Pursuant to s.545(1) of the FW Act, Barwon Health pay to Ms Sampson compensation in the amount of $9,121.44 with respect to the contraventions set out in paragraph 1(a) to (c) hereof, within 28 days of the date of this order.
3.Pursuant to s.547(2) of the FW Act, Barwon Health pay to Ms Sampson interest in the amount of $3,393.95 with respect to the contraventions set out in paragraph 1(a) to (c) hereof, within 28 days of the date of this order.
4.Pursuant to s.545(1) of the FW Act, Barwon Health make a superannuation contribution to Ms Sampson's nominated superannuation fund in the amount of $1,189.03, inclusive of interest in the amount of $322.44, with respect to the contravention set out in paragraph 1(d) hereof within 28 days of the date of this order.
5.The matter be adjourned to a penalty hearing on 1 November 2024 commencing at 10:30am (with an estimated hearing time of a half day) at the Federal Circuit and Family Court of Australia in Melbourne; and
(a)evidence in chief on the question of penalty be by way of affidavit;
(b)on or before 4:00pm on 21 June 2024, the applicants file and serve evidence and submissions relating to penalty;
(c)on or before 4:00pm on 5 July 2024, the respondent file and serve evidence and submissions relating to penalty;
(d)subject to compliance with order 5(b) and (c) the parties notify the Court by no later than 9:00am on 19 July 2024 that they consent to the issue of the appropriate penalty being determined on the papers in Chambers and provide a signed minute to that effect and consent to the penalty hearing being vacated.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Revised from transcript)
On 30 April 2024 for reasons published as Australian Nursing and Midwifery Federation v Barwon Health [2024] FedCFamC2G 376 the Court made the following orders:
(1)By 7 May 2024, the applicants provide to the respondent and the Court, a minute of proposed orders setting out the form of the declaratory relief it seeks consistent with these reasons for judgment.
(2)By 14 May 2024, the respondent notify the Court whether it agrees with the applicants' proposed orders, or failing agreement, provide to the applicant and the Court its proposed orders consistent with these reasons for judgment.
(3)The Court will finalise the orders on the papers or, if either party requests, at a case management hearing to be convened on a date to be fixed for that purpose.
(4)The matter will otherwise be listed for directions on a date to be fixed to make directions for the determination of the question of penalty.
The parties who will be referred to in the same terms subsequently provided the Court with a draft minute of proposed declarations and orders to give effect to those reasons. The applicants sent proposed orders on 9 May 2024. The respondent told the Court on 14 May 2024, that they agreed the applicants’ proposed orders were consistent with and necessary to give effect to the above reasons.
The matter was subsequently listed for a directions hearing today, 16 May 2024, to make those orders and program the penalty hearing. Mr McKenna appeared today for the applicants and Mr McDermott appeared for the respondent. Counsel provided the Court with agreed amendments to that minute.
For those reasons I make orders in terms of the applicants’ minute dated 9 May 2024 as amended this day.
I certify that the preceding 4 (four) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Sullivan delivered on 16 May 2024 . Associate:
Dated: 14 June 2024
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