DEGENHARDT & AMBULANCE VICTORIA (No.2)
[2017] FCCA 2223
•13 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEGENHARDT & AMBULANCE VICTORIA (No.2) | [2017] FCCA 2223 |
| Catchwords: INDUSTRIAL LAW – Orders consequent upon liability determination – nine scenarios proposed as representing possible constructions of the findings of fact and holdings of law on the liability judgment – scenario 7 preferred for the reasons given – directions ordered for hearing of quantum. |
| Cases cited: Degenhardt v Ambulance Victoria [2017] FCCA 543 Polan v Goulburn Valley Health (No.2) [2017] FCA 30 |
| Applicant: | GABRIELLE DEGENHARDT |
| Respondent: | AMBULANCE VICTORIA |
| File Number: | MLG 1366 of 2015 |
| Judgment of: | Judge Wilson |
| Hearing date: | 29 August 2017 |
| Date of Last Submission: | 29 August 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 13 September 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Maddison & Associates |
| Counsel for the Respondent: | Mr M. Rinaldi |
| Solicitors for the Respondent: | DLA Piper Australia |
I ORDER THAT within 21 days of the handing down of these reasons, the parties bring in minutes of orders that reflect these reasons as well as directions as to the further conduct of this case.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1366 of 2014
| GABRIELLE DEGENHARDT |
Applicant
And
| AMBULANCE VICTORIA |
Respondent
REASONS FOR JUDGMENT
Introduction
Pursuant to orders made when I pronounced judgment on liability in this proceeding,[1] the parties produced an agreed document that set out nine separate scenarios that represented possible constructions of the findings and holdings in my reasons. The parties invited me to rule on which of those nine scenarios properly synthesised the findings of fact and holdings of law at which I arrived.
[1] Degenhardt v Ambulance Victoria [2017] FCCA 543.
It is useful to set out in précis form the conclusions I reached on liability. I said the following –
a)the 4 April 2013 contract and the 2010, 2011 and 2014 enterprise agreements applied;
b)the applicant Gabrielle Degenhardt was entitled to be paid on the basis that she worked for four shifts;
c)Ms Degenhardt was entitled to be paid for being “on-call”;
d)Ms Degenhardt was entitled to be paid a casual loading; and
e)Ms Degenhardt was entitled to be paid at penalty rates.[2]
[2] Degenhardt v Ambulance Victoria [2017] FCCA 543 at [5].
Mr Rinaldi of counsel for Ambulance Victoria (“AV”) correctly pointed out that while paragraph 5(e) of the liability judgment spoke of penalty rates, in fact paragraph 148 of my reasons spoke of Ms Degenhardt’s entitlement to be paid a casual loading for all hours worked.
On 29 August 2017 I heard argument on the matter.
Synopsis
For the reasons that follow, in my view scenario 7 should be adopted.
The agreed scenarios
The agreed scenarios are set out immediately below –
Definitions
Claim Period
means the period between 18 June 2009 to
17 June 2015.
Enterprise Agreements means:
· the Rural Ambulance Victoria and Health Services Union (Management and Administrative Staff) Collective Agreement 2006 (“2006 Agreement”);
· the Ambulance Victoria (Management and Administrative Staff) Enterprise Agreement 2011 (“2011 Agreement”); and
· the Ambulance Victoria (Management and Administrative Staff) Enterprise Agreement 2014 (“2014 Agreement”).
Scenarios
1. Scenario 1
1.1.The Applicant was entitled to be paid in accordance with the Enterprise Agreements for a minimum of one and a half hours for each of four 12 hour “shifts” on Mondays and Tuesdays plus at the casual hourly rate applicable under the Enterprise Agreements for each hour she actually worked beyond 1.5 hours in each 12 hour “shift”.
1.2.For each hour that the Applicant worked in accordance with 1.1, she was entitled to be paid the relevant casual hourly rate under the Enterprise Agreements which included a:
· 25% casual loading for the hours that fell on Monday to Friday; and
· 75% casual loading for hours that fell on weekends and public holidays.
1.3.The Applicant was entitled to superannuation of 9.5% during the Claim Period.
2. Scenario 2
2.1.The Applicant was entitled to be paid in accordance with the Enterprise Agreements for the minimum casual shift hours specified in each of the Enterprise Agreements for each of four 12 hour “shifts” on Mondays and Tuesdays plus at the casual hourly rate applicable under the Enterprise Agreements for each hour she actually worked beyond the minimum casual shift hours in each 12 hour “shift”.
2.2.For each hour that the Applicant worked in accordance with 2.1, she was entitled to be paid the relevant casual hourly rate under the Enterprise Agreements which included a:
· 25% casual loading for the hours that fell on Monday to Friday; and
· 75% casual loading for hours that fell on weekends and public holidays.
2.3.The Applicant was entitled to superannuation of 9.5% during the Claim Period.
3. Scenario 3
3.1.The Applicant was entitled to be paid in accordance with the Enterprise Agreements for all time worked during the hours for which she was rostered to be on call (generally, but not limited to, Mondays and Tuesdays) which consisted of:
· the time spent by the Applicant taking or making telephone calls in relation to media queries, regardless of the time of those calls; and
· an additional 50% of the time spent on calls to account for ancillary and preparatory work.
3.2.For each hour that the Applicant worked in accordance with 3.1, she was entitled to be paid the relevant casual hourly rate under the Enterprise Agreements which included a:
· 25% casual loading for the hours that fell on Monday to Friday; and
· 75% casual loading for hours that fell on weekends and public holidays.
3.3.The Applicant was entitled to superannuation of 9.5% during the Claim Period.
4. Scenario 4
4.1.The Applicant was entitled to be paid in accordance with the Enterprise Agreements for all time worked during the hours for which she was rostered to be on call (generally, but not limited to, Mondays and Tuesdays) which consisted of:
· the time spent by the Applicant taking or making telephone calls in relation to media queries, regardless of the time of those calls; and
· an additional 100% of the time spent on calls to account for ancillary and preparatory work.
4.2.For each hour that the Applicant worked in accordance with 4.1, she was entitled to be paid the relevant casual hourly rate under the Enterprise Agreements which included a:
· 25% casual loading for the hours that fell on Monday to Friday; and
· 75% casual loading for hours that fell on weekends and public holidays.
4.3.The Applicant was entitled to superannuation of 9.5% during the Claim Period.
5. Scenario 5
5.1.The Applicant was entitled to be paid in accordance with the Enterprise Agreements for all time worked during the hours for which she was rostered to be on call (generally, but not limited to, Mondays and Tuesdays) which consisted of:
· the time spent by the Applicant taking or making telephone calls in relation to media queries, regardless of the time of those calls; and
· an additional 150% of the time spent on calls to account for ancillary and preparatory work.
5.2.For each hour that the Applicant worked in accordance with 5.1, she was entitled to be paid the relevant casual hourly rate under the Enterprise Agreements which included a:
· 25% casual loading for the hours that fell on Monday to Friday; and
· 75% casual loading for hours that fell on weekends and public holidays.
5.3.The Applicant was entitled to superannuation of 9.5% during the Claim Period.
6. Scenario 6
6.1.The Applicant was entitled to be paid for each hour for which she was rostered to be on call (irrespective of any telephone calls made or taken or work performed in relation thereto) which was usually 48 hours per week (i.e. 4 shifts of 12 hours).
6.2.For each hour that the Applicant was rostered to be on call, she was entitled to be paid the relevant casual hourly rate under the Enterprise Agreements which included a:
· 25% casual loading for the hours that fell on Monday to Friday; and
· 75% casual loading for hours that fell on weekends and public holidays.
6.3.The Applicant was entitled to superannuation of 9.5% during the Claim Period.
7. Scenario 7
7.1.The Applicant was entitled to be paid at the casual loaded rate (viz. 125% of base rate) under the Enterprise Agreements for each hour for which she was rostered to be on call (irrespective of any telephone calls made or taken or work performed in relation thereto) which was usually
48 hours per week (i.e. 4 shifts of 12 hours).
7.2.For the first 7.6 hours during which the Applicant was rostered to be on call each week, the Applicant was entitled to be paid at the rates set out in 8.1 and thereafter at overtime rates in accordance with the Enterprise Agreements, being 150% of base rate for the first two hours and 200% thereafter.
7.3.The Applicant was entitled to superannuation of 9.5% during the Claim Period.
8. Scenario 8
8.1.The Applicant was entitled to be paid at the casual loading rate (viz. 125% of base rate) under the Enterprise Agreements for each hour that she was rostered to be on call (irrespective of any telephone calls made or taken or work performed in relation thereto) which was usually 48 hours per week (i.e. 4 shifts of 12 hours).
8.2.For the first 7.6 hours during which the Applicant was rostered to be on call each day during the week, the Applicant was entitled to be paid at the rate set out in 9.1, and thereafter at overtime rates for any hours worked after 7.6 hours on that same day in accordance with the Enterprise Agreements, being 150% of base rate for the first two hours and 200% thereafter.
8.3.The Applicant was entitled to superannuation of 9.5% during the Claim Period.
9. Scenario 9
9.1.The Applicant was entitled to be paid at the casual loading rate (viz. 125% of base rate) under the Enterprise Agreements for each hour that she was rostered to be on call (irrespective of any telephone calls made or taken or work performed in relation thereto) which was usually 48 hours per week (i.e. 4 shifts of 12 hours).
9.2.For the first 38 hours during which the Applicant was rostered to be on call each week, the Applicant was entitled to be paid at the rates set out in 10.1, and thereafter at overtime rates in accordance with the Enterprise Agreements, being 150% of base rate for the first two hours and 200% thereafter.
9.3.The Applicant was entitled to superannuation of 9.5% during the Claim Period.
NB: The rate of uplift in scenarios 3, 4 and 5 are examples of uplift and the percentage amount is an attempt to quantify work done by the Applicant additional to the evidence in relation to telephone records. The uplift percentage could be altered to any figure considered by the Court to be appropriate to reflect this additional work.[3]
[3] Parties’ joint proposed damages scenarios in Degenhardt v Ambulance Victoria.
That document was comprehensive, reflective of a highly cooperative approach adopted by the parties.
The respective contentions
In essence Mr Addison for Ms Degenhardt argued that scenarios 2, 6, 7, 8 and 9 embrace the logic and reasoning of the liability judgment. However, he contended that scenario 7 most closely approximated the conclusions of the findings summarised in paragraphs 5(a) to (e) of the liability judgment. Expressed arithmetically, scenario 7 produced a monetary amount in favour of Ms Degenhardt of $896,399.00.
Conversely, Mr Rinaldi argued that scenarios 4 or 5 most closely approximated the findings summarised in paragraphs 5(a) to (e) of the liability judgment. Expressed arithmetically, scenario 4 produced a monetary amount in favour of Ms Degenhardt of $68.71 and scenario 5 produced a monetary amount in favour of Ms Degenhardt of $11,756.00. In either case, the monetary amounts represented by scenarios 4 and 5 were vastly lower than the monetary amount represented by scenario 7.
Scenario 7 in detail
On behalf of Ms Degenhardt, Mr Addison said scenario 7 addressed and responded to each element canvassed in paragraphs 5(a) to (e). Once the wording of paragraph 5(e) was properly understood to refer to casual loading, then it seemed to me that Mr Addison’s argument concerning the applicability of scenario 7 was pertinent. It is necessary to go to the detail.
In paragraph 5(a) of the liability judgment I held that the 4 April 2013 contract and the 2010, 2011 and 2014 enterprise agreements applied. Both parties agreed.
In paragraph 5(b) of the liability judgment I held that Ms Degenhardt was entitled to be paid on the basis that she worked for four shifts. Scenario 7 was predicated upon Ms Degenhardt working four shifts, each of 12 hours.
In paragraph 5(c) of the liability judgment I held that Ms Degenhardt was entitled be paid for being “on-call”. Scenario 7 specifically incorporated that.
In paragraph 5(d) of the liability judgment I held that Ms Degenhardt was entitled be paid a casual loading. Paragraph 7.1 of scenario 7 provided that Ms Degenhardt was to be paid at the casually loaded rate under the enterprise agreements.
So far as paragraph 5(e) was concerned, I have already canvassed that.
In short, scenario 7 did seem to correspond, in terms if not precisely, to paragraphs 5(a) to (e) of my reasons in the liability judgment.
Mr Addison submitted that I should apply the formula in scenario 7 in this case.
Scenarios 4 and 5 in detail
Mr Rinaldi contended that either scenario 4 or scenario 5 applied.
The important issue in those scenarios was the uplift - 100% in scenario 4 and 150% in scenario 5. Each had as their genesis the reasoning of Mortimer J in Polan v Goulburn Valley Health (No 2)[4] and the reasoning of the Full Court of the Federal Court of Australia in Warramunda Village Inc. v Pryde.[5] The degree of the uplift did not seem to matter as much as the fact of the uplift.
[4] [2017] FCA 30.
[5] (2002) 116 FCR 58.
When one goes to the detail of scenario 4, it provided that
Ms Degenhardt was to be paid for all time worked. Pausing there,
in paragraph 5(b) of my reasons in the liability judgment I held that she was to be paid on the basis of four shifts. Unlike in scenario 7 where provision was made for 48 hours of work, being four shifts each of
12 hours, scenario 4 merely provided that Ms Degenhardt was to be paid “generally, but not limited to, Mondays and Tuesdays” which consisted of time spent by Ms Degenhardt taking or making calls.
To my mind, that construction of my findings restricted a large portion of my reasoning away from the concept that she was “on-call”. Scenario 4 seemed to conflate the concepts of Ms Degenhardt being on-call but only insofar as she was, while on-call, engaged in the task of taking or making calls. In my reasons for judgment on liability I held that Ms Degenhardt’s being on-call was more expansive than the tasks of merely taking or making calls, as was evident from the passages between paragraphs 116 – 138 of the reasons. For that matter,
in paragraph 125 of my reasons I held that it was erroneous for AV to construe Ms Degenhardt’s tasks as being limited to taking or making calls yet scenario 4 was expressly premised on the very activity I said did not confine her role.
It was true that scenario 4 picked up a casual loading mentioned in paragraph 5(d) of my reasons in the liability judgment. But in relation to the on-call component it seemed to me that scenario 4 did not accurately translate the import of my holding in the liability judgment nor did it properly address the totality of the hours covered by the four shifts.
Scenario 5 was comparable, if not identical, to scenario 4 except that in scenario 5 the relevant uplift was 150% rather than 100% as was provided for in scenario 4.
Two additional observations about scenarios 4 and 5 are apposite.
When one goes to either scenario 4 or scenario 5, the first observable matter is the starting point of the analysis, namely, the telephone records that were said to reflect the time involved in Ms Degenhardt’s activity in making or receiving telephone calls. Those telephone records were not complete. Neither party argued otherwise. So, as a matter of logic, the analysis began on a rickety foundation with incomplete and therefore unreliable records as the starting point. To my mind, that was not a particularly sound basis on which to proceed. Moreover as I held in the liability judgment, the total of
Ms Degenhardt’s work activity was not to be reckoned by reference to the telephone records alone. She did other work and the records, to the extent that they recorded telephonic communications, told very little of the overall activity she undertook.
Mr Rinaldi said that by reason of the incompleteness of the telephone records, the uplift was intended to provide recognition by way of payment in relation to incidental or ancillary activities that
Ms Degenhardt may have performed in addition to the acts of making and receiving telephone calls. In the case of scenario 4, the uplift was 100%. In the case of scenario 5 the uplift was 150%. But it seemed to me that the starting premise was wrong. The telephone records did not even remotely approximate the time Ms Degenhardt spent while discharging her duties devoted to her employer’s work. She was
on-call. She had to be able to spring into active mobility at a moment’s notice. While she was not working while asleep, she was nevertheless on-call. I canvassed those matters in detail in the liability judgment and do not propose to recount them here.
To my mind, scenarios 4 and 5 commenced on a fundamentally erroneous premise. Time on the telephone was, in the scheme of things, a relatively small component of Ms Degenhardt’s work. The concept of adding a 100% or even a 150% uplift to the time she spent on the telephone was to fundamentally ignore the on-call nature of
Ms Degenhardt’s role. Time on the telephone was secondary to her functions. And so, while seemingly generous to provide the uplift – whether of 100% or 150% – scenarios 4 and 5 missed the point.
The arithmetic that the respective scenarios thereby produced was indicative only at this stage. It may not transpire that Ms Degenhardt is able to prove that by the application of the methodology in scenario 7 she can establish a monetary entitlement of the magnitude she currently asserts. The precise quantification of the monetary component of my findings herein must unfold.
Conclusion
In my view, scenario 7 correctly corresponded to the findings of fact and holdings of law that I made in this case.
Minutes of orders and directions
Within 21 days I direct the parties to bring in minutes of orders that reflect these reasons as well as directions as to the further conduct of this case.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 13 September 2017
2
3
0