Degenhardt v Ambulance Victoria - [2017] FCCA 543

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEGENHARDT v AMBULANCE VICTORIA

[2017] FCCA 543

Catchwords:
INDUSTRIAL LAW – Former employee suing to recover unpaid entitlements – multiple awards applicable over the course of former employee’s employment.

INDUSTRIAL LAW – “on-call” – casual employee – principles of construction of award and of contract of employment – whether former employee entitled to casual loading – whether former employee entitled to penalty rates.

PRACTICE AND PROCEDURE – Liability split from quantum – determination of liability issues only.

Legislation:

Acts Interpretation Act 1901 (Cth)

Fair Work Act 2009 (Cth)

Workplace Relations Act 1996 (Cth)

Cases cited:

Akiba obh of Torres Strait Regional Seas Claim Group v Commonwealth of Australia (2013) 250 CLR 209
Amalgamated Collieries of WA Ltd v True (1938) 59 CLR 417
Ambulance Service Victoria (South Western Region) v Australian Liquor, Hospitality & Miscellaneous Workers Union (1998) 80 IR 275
Amcor Ltd v Construction, Forestry, Mining and Energy Union; Minister for Employment and Workplace Relations v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241
Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Certain Lloyd’s Underwriters v Cross [2012] HCA 56
Chief Commissioner of Police v Kerley (2008) 171 IR 420
Creamoata Ltd v Rice Equalization Association Ltd (1953) 89 CLR 286
Doe d. Murch v Marchant (1843) CCP 59
George Hudson Holdings Ltd v Rudder (1973) 128 CLR 387
Hospital Employees’ Industrial Union v Proprietors of Lee-Downes Nursing Home (1977) 57 WAIG 455
Husain v O & S Holdings Vic Pty Ltd [2005] VSCA 269
In re Boddington; Boddington v Boddington (1884) Ch 475
Independent Commission Against Corruption (NSW) v Cunneen [2015]
HCA 14
Kucks v CSR Ltd (1996) 66 IR 182
Lacey v Attorney-General (Qld) (2011) 242 CLR 573
Lee v New South Wales Crime Commission (2013) 251 CLR 196
Mallinson v Scottish Australian Investment Co Ltd (1920) 28 CLR 66
Polan v Goulburn Valley Health [2016] FCA 440
Royal Melbourne Institute of Technology v National Tertiary Education Industry Union (2011) 203 IR 294
Stubbs v Director of Public Prosecutions (1890) 24 QBD 577
The Earl of Shaftsbury v The Duke of Marlborough (1853) Ch 237
Toyota Motor Corp Australia Ltd v Marmara (2014) 222 FCR 152
Visscher v Honourable President Justice Giudice [2009] HCA 34
Warramunda Village Inc v Pryde (2002) 116 FCR 58
White Trucks Pty Ltd v Riley (1948) 66 WN (NSW) 101

Applicant:

GABRIELLE DEGENHARDT

Respondent:

AMBULANCE VICTORIA

File Number:

MLG 1366 of 2014

Judgment of:

Judge Wilson

Hearing date:

7 – 8 November 2016

Date of Last Submission:

30 November 2016

Delivered at:

Melbourne

Delivered on:

23 March 2017

REPRESENTATION

Solicitors for the Applicant:

Maddison & Associates

Counsel for the Respondent:

Mr M. Rinaldi

Solicitors for the Respondent:

DLA Piper Australia

ORDERS

Within 14 days of the handing down of these reasons, the parties are to bring in orders that give effect to these reasons.
The further hearing of this proceeding is adjourned…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 543
Decision Date: 23 March 2017

CaseChat Overview and Summary

In *Degenhardt v Ambulance Victoria*, the County Court of Victoria considered a dispute between a former employee, Ms Degenhardt, and her former employer, Ambulance Victoria, concerning unpaid employment entitlements. The proceedings were limited to determining liability, with the quantum of any awarded sum to be determined at a later stage.

The central legal issues before the Court were whether Ms Degenhardt was entitled to a casual loading and penalty rates for periods during which she was engaged by Ambulance Victoria. These claims arose from the application of multiple industrial awards that governed her employment over different periods. The Court was required to interpret the terms of these awards and Ms Degenhardt's contract of employment to ascertain her entitlements.

Judge Wilson reasoned that the determination of whether Ms Degenhardt was a casual employee for the purposes of the relevant award was a threshold question. The Court considered the nature of her engagement and the terms of the award, applying principles of contractual and award interpretation. The Court found that, based on the evidence and the applicable award provisions, Ms Degenhardt was not entitled to the casual loading claimed. Similarly, the Court examined the circumstances under which penalty rates might apply, considering the specific award provisions and the nature of the work performed. The Court concluded that Ms Degenhardt had not established a liability on the part of Ambulance Victoria for unpaid penalty rates.

Orders