Australian Red Cross Society v Queensland Nurses' Union of Employees

Case [2019] FCA 41

FEDERAL COURT OF AUSTRALIA

Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCA 41

Appeal from: Queensland Nurses’ Union of Employees v Australian Red Cross Society [2018] FCCA 3471
File number: QUD 934 of 2018
Judge: PERRY J
Date of judgment:

23 January 2019
Date of publication of reasons:

24 January 2019
Catchwords: PRACTICE AND PROCEDURE – where Federal Circuit Court held that appellants had contravened the Fair Work Act 2009 (Cth) and made declarations – where Federal Circuit Court made orders for and in relation to the hearing of the second stage of the trial on penalty and compensation – where appellants applied for stay of orders regarding the second stage of the trial – where appeal instituted in this Court against the judgment on liability – whether leave to appeal required – whether declarations in a “split trial” are interlocutory in nature for this purpose – consideration of undesirability of fragmenting proceedings – application dismissed
Legislation:

Fair Work Act 2009 (Cth)

Federal Court of Australia Act 1976 (Cth)

Cases cited:

Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685

Australian Builders' Labourers' Federated Union of Workers - Western Australian Branch v J-Corp Pty Limited (1993) 42 FCR 452

Construction, Forestry, Mining and Energy Unionv BHP Coal Pty Ltd [2017] FCAFC 50

Construction, Forestry, Mining and Energy Union v Employment Advocate [2001] FCA 1442

Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189; (2004) 140 FCR 17

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585

MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110

Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65

Re Middle Harbour Investments Ltd (In liq) (Unreported, New South Wales Court of Appeal, Moffitt P, Glass and Mahoney JJA, 15 December 1976)

Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130

Tattsbet v Morrow [2015] FCAFC 62; (2015) 233 FCR 46

Warramunda Village Inc v Pryde [2002] FCA 250; (2002) 116 FCR 58

Yorke v Lucas (1985) 158 CLR 661

Date of hearing: 22 January 2019
Registry: New South Wales
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 22
Counsel for the Appellants: Mr L Howard
Solicitor for the Appellants: Lander & Rogers
Counsel for the Respondent: Mr R Reid
Solicitor for the Respondent: Queensland Nurses & Midwives’ Union

ORDERS

QUD 934 of 2018
BETWEEN:

AUSTRALIAN RED CROSS SOCIETY

First Appellant

RHIANNON FEALY

Second Appellant

LISA MCILROY

Third Appellant
AND:

QUEENSLAND NURSES' UNION OF EMPLOYEES

Respondent

JUDGE:

PERRY J

DATE OF ORDER:

23 JANUARY 2019

THE COURT ORDERS THAT:

1.To the extent necessary, the notice of appeal is taken to be an application for leave to appeal from the judgment in Queensland Nurses’ Union of Employees v Australian Red Cross Society [2018] FCCA 3471.

2.The application for a stay of the orders made by the Federal Circuit Court of…

Continue reading Australian Red Cross Society v Queensland Nurses' Union of E...

Sign in free to access the full text

Details
AGLC
Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCA 41
Case
[2019] FCA 41
Decision Date

CaseChat Overview and Summary

The Federal Court of Australia was asked to consider an appeal by the Australian Red Cross Society and two of its employees against a decision by the Federal Circuit Court of Australia. The Federal Circuit Court had found that the appellants had contravened the Fair Work Act 2009 (Cth) in their conduct against an employee, Ms Sandi Emblem. The Federal Circuit Court made declarations regarding the contraventions and set a date for a hearing on penalty and compensation. The appellants sought a stay of these orders, arguing that the penalty hearing would result in unnecessary costs and inefficient use of court resources. The appellants also filed an interlocutory application seeking a stay of the penalty hearing orders in the Federal Circuit Court. The Federal Court considered the appeal and the interlocutory application, focusing on whether leave to appeal was required and the desirability of fragmenting proceedings. The Court found that the declarations made at the end of the first stage of the trial were interlocutory in nature and that leave to appeal was required. However, the Court proceeded with the hearing of the interlocutory application, considering the substance of the stay application without factoring in the additional hurdle that leave to appeal would potentially pose. The Court ultimately refused the application for a stay of the penalty hearing orders. The Court considered the potential delay in referring the matter to a duty judge and the impact on the appellants' ability to comply with the Federal Circuit Court's timetabling orders. Despite this, the Court proceeded with the hearing of the interlocutory application, and the respondent agreed not to take issue with the appellants' failure to comply with the Federal Circuit Court's timetabling orders pending the determination of the stay application by the Federal Court. The Court made an order to the effect that the notice of appeal was taken to be an application for leave to appeal, and the application for a stay of the penalty hearing orders was refused. Costs were reserved, and the parties were required to advise the Court on the issue of costs or a timetable for short written submissions on that issue.

Orders

Orders of the court

1. To the extent necessary, the notice of appeal is taken to be an application for leave to appeal from the judgment in Queensland Nurses’ Union of Employees v Australian Red Cross Society [2018] FCCA 3471.

2. The application for a stay of the orders made by the Federal Circuit Court of Australia on 17 December 2018 is refused.

3. Costs are reserved.

THE COURT NOTES THAT:

4. On or before 4 pm (Brisbane time) on 31 January 2019 the parties are to advise the Associate to Justice Perry as to whether agreement has been reached between the parties on the issue of costs, or alternatively as to a timetable within which short written submissions may be filed by the parties on that issue.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 28 November 2018, the Federal Circuit of Australia (the FCC) delivered reasons for judgment in the matter of Queensland Nurses’ Union of Employees v Australian Red Cross Society [2018] FCCA 3471 (the FCC liability judgment). In its reasons, the FCC found that the Australian Red Cross Society (the Red Cross), Ms Rhiannon Fealy and Ms Lisa McIlroy, the first, second and third appellants respectively, had contravened provisions of the Fair Work Act 2009 (Cth) (the FWA) by conduct taken against Ms Sandi Emblem who was then employed by the Red Cross. Declarations were made of the contraventions by orders made on 17 December 2018 to the effect that:(1)the Red Cross contravened subs 340(1)(a) of the FWA by issuing Ms Emblem with a written first and final disciplinary warning on 11 April 2014, by issuing her with a letter on 28 May 2014 to attend a meeting, by suspending her from her employment on 30 May 2014, and by dismissing her from that employment on 2 June 2014; and(2)the second and third appellants were involved in each of these contraventions within the meaning of s 550 of the FWA, and are taken to have contravened subs 340(1)(a) of that Act in each case. The FCC also made orders on 17 December 2018 adjourning the proceeding to 29 January 2019 for a hearing in respect of penalty and compensation, and made timetabling orders requiring the appellants to file and serve legal submissions as to the nature and quantum of penalty and compensation by 22 January 2019, together with any affidavit material in support. An application for a stay of these orders or, in the alternative, for the adjournment of the penalty hearing was adjourned sine die following an exchange between Bar and the Bench in which it was resolved that the appellants would instead file an appeal in the Federal Court and seek a stay of the proceeding and orders, consistent with what was said to be “the usual practice”. The appellants appealed against the FCC liability judgment by a notice of appeal filed on 21 December 2018 in this Court. On 27 December 2018 they filed an interlocutory application seeking a stay of the orders made on 17 December 2018. That interlocutory application is supported by the affidavit of Ms Kaitlyn Gulle, solicitor, affirmed on 21 December 2018 in which Ms Gulle gives an estimate of the appellants’ legal costs for the hearing on penalty and compensation. The appellants seek the stay in the interests of the efficient use of the resources of the FCC and avoiding unnecessary costs that would be potentially incurred by the parties as a result of the penalty hearing. The application for a stay is opposed. The matter was allocated to me as duty judge on 21 January 2019. I listed the matter for an urgent hearing on 22 January 2019 and indicated that I would deliver judgment the following day. The apparent delay in the matter being referred to a duty judge despite the appellants’ seeking a listing in early January was unfortunate. It meant that the interlocutory application was heard on the same day that the FCC orders required the appellants to file and serve their evidence and submissions on the penalty hearing in the FCC and only a week before the hearing on penalty was listed to be heard. That notwithstanding, the respondent’s counsel very fairly indicated that the respondent would not take issue with the failure by the appellants to comply with the FCC timetabling orders pending the determination of the stay application by this Court. 2. PRINCIPLES GOVERNING THE GRANT OF A STAY

Ratio Decidendi

Legal Principle Established

Finally, in line with the approach endorsed in Powerflex Services, no single factor is necessarily determinative. 3. CONSIDERATION A preliminary issue arose as to the competency of the appeal for the reason that, while declarations are final in nature, orders have not yet been made finally disposing of the matter. While in the event it was not necessary to decide the point and appreciating that it had been raised only shortly before the hearing and was not fully argued, it would appear that declarations made at the end of the first stage of a “split case” are interlocutory and therefore that leave to appeal is required under subs 24(1A) of the Federal Court of Australia Act 1976 (Cth): see Construction, Forestry, Mining and Energy Union v Employment Advocate [2001] FCA 1442 at [8]-[9] (the Court); Australian Builders' Labourers' Federated Union of Workers - Western Australian Branch v J-Corp Pty Limited (1993) 42 FCR 452 at 454 (Lockhart and Gummow JJ); Warramunda Village Inc v Pryde [2002] FCA 250; (2002) 116 FCR 58 at [69] (Finkelstein J). Ultimately the hearing of the interlocutory application proceeded on the basis that if need be, orders would be sought in due course that the notice of appeal be treated as an application for leave to appeal and any related procedural issues would be addressed. Thus in line with the parties’ common position, I have dealt with the substance of the stay application without factoring in the additional hurdle that leave to appeal would potentially pose. That said, I nonetheless considered that I ought to make an order to the effect that, to the extent necessary, the notice of appeal is taken to be an application for leave to appeal. By the notice of appeal, the appellants appeal from the whole of the FCC liability judgment and orders. The grounds of appeal may be summarised as follows:(1)the primary judge erred in finding at [115]-[116] that s 361 of the FWA was enlivened as the evidence relied upon by the primary judge could not support a finding that the relevant decision-makers for the Red Cross knew that Ms Emblem had participated in industrial action (ground 1);(2)the primary judge erred in finding that the Red Cross had failed to discharge the evidential onus pursuant to s 361 of the FWA (ground 2);(3)the judgment and orders are unsafe by reason of the delay between the hearing of the proceeding on 21, 22 and 23 April 2015 and the delivery of the liability judgment on 28 November 2018, particularly given the findings of fact made by the primary judge which were adverse to the appellants, including apparent adverse credibility findings against witnesses called by the appellants (ground 3); and(4)the primary judge erred in finding at [155] that the second and third appellants were involved in the contraventions by the Red Cross within the meaning of s 550 of the FWA and did not make any findings of fact or law which would meet the strict tests applicable for establishing accessorial liability under that provision of the FWA (grounds 4 and 5).