Degenhardt v Ambulance Victoria
[2017] FCCA 543
•23 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEGENHARDT v AMBULANCE VICTORIA | [2017] FCCA 543 |
| Catchwords: 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 |
| 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 to 19 April 2017 at 10.00 a.m.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1366 of 2014
| GABRIELLE DEGENHARDT |
Applicant
And
| AMBULANCE VICTORIA |
Respondent
REASONS FOR JUDGMENT
Introduction
This seemingly run-of-the-mill case in which a former employee Gabrielle Degenhardt sued to recover unpaid entitlements from her employer Ambulance Victoria (“AV”) raised a number of complicated points, both factually and legally.
Among them were questions about the composition of the relevant contract, the construction of the contract, the overlay between the contract and relevant industrial awards, whether by particular conduct the parties treated the contract as being construed in a manner inconsistent with its actual terms and whether penalty rates applied.
After parties reached agreement that liability and quantum would be split, this proceeding was heard on liability only.
The issues that fell for determination were –
a)which contract and industrial award applied to the employment of Ms Degenhardt;
b)whether Ms Degenhardt was entitled to be paid on the basis that she worked two or four shifts;
c)
whether Ms Degenhardt was entitled to be paid for being
“on-call”;
d)whether Ms Degenhardt was entitled to be paid a casual loading; and
e)whether Ms Degenhardt was entitled to be paid penalty rates.
Synopsis
For the reasons that follow, in my judgment –
a)the 4 April 2013 contract and the 2010, 2011 and 2014 enterprise agreements applied;
b)Ms 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 causal loading; and
e)Ms Degenhardt was entitled to be paid at penalty rates.
Short factual narration
At my request, the parties prepared and signed an agreed statement of facts. It was in the following terms –
1.Gabrielle Degenhardt (the Applicant) commenced employment with Rural Ambulance Victoria as a Casual Media Officer on 4 December 2006 under the terms of a letter of offer dated 13 November 2006.
2.After the merger of Rural Ambulance Victoria and Metropolitan Ambulance Service on 1 July 2008,
the Applicant was employed by the Respondent. The terms and conditions were unchanged following that transfer of employment.
3.The Applicant was provided with another letter of offer dated 10 October 2012, which updated the terms of her employment from 1 December 2012.
4.Throughout her employment with Rural Ambulance Victoria, and subsequently with the Respondent, the Applicant was engaged on a casual basis.
5.The Applicant was covered by the following enterprise agreements during her employment:
a. From 4 December 2006 until 22 February 2011,
the Rural Ambulance Victoria and Health Services Union (Management and Administrative Staff) Collective Agreement 2006;
b. From 23 February 2011 until 15 December 2014,
the Ambulance Victoria (Management and Administrative Staff) Enterprise Agreement 2011;
c. From 16 December 2014 until her employment ceased, the Ambulance Victoria (Management and Administrative Staff) Enterprise Agreement 2014;
(collectively, the Enterprise Agreements).
6.The Applicant was entitled to payment as a casual employee under the Enterprise Agreements, including the applicable casual loading.
7.No individual flexibility agreements were entered into between the Applicant and the Respondent.
8.The Applicant was responsible for responding to media enquiries in relation to operational incidents in rural Victoria.
9.The Applicant generally worked on Mondays and Tuesdays, from home.
10. The Applicant’s employment ceased on 21 April 2015.
11.The claim relates only to the 6 year period prior to the commencement of this proceeding on 17 June 2015
(the Relevant Period).
12.The Applicant was paid by the Respondent $101,182 in total over the Relevant Period.[1]
[1] Consent exhibit 3 - agreed statement of facts.
Useful as that statement was, it gave limited insight into the nature and setting of the disputes between the parties. It is necessary to recite the background in a little more detail.
The November 2006 contract
It was common ground that Ms Degenhardt was employed by a government agency then known as Rural Ambulance Victoria (“RAV”) pursuant to the terms recorded in a letter dated 13 November 2006.[2] That letter was headed “Letter of Offer - Media Officer (Casual Appointment)”. The letter made provision for Ms Degenhardt to sign it on the third page immediately under a section that read –
I, Gabrielle Degenhardt, accept your offer of employment under the terms and conditions identified above.[3]
[2] Exhibit “GD1” to the affidavit of Gabrielle Degenhardt sworn 29 February 2016.
[3] Ibid.
With the letter dated 13 November 2006 RAV provided to
Ms Degenhardt a copy of RAV’s then-prevailing code of conduct, its procedure on conflicts of interest and its policy in relation to alcoholic liquor and drugs.
Ms Degenhardt swore in her affidavit made 29 February 2016 that she could not recall signing the letter from RAV dated 13 November 2006. She also swore that RAV did not include the position description referred to in item 7 of that letter.
So far as is relevant, in the 13 November 2006 letter RAV stated –
a)RAV offered Ms Degenhardt casual employment with RAV in the position of media officer;
b)the appointment was on casual terms and conditions of employment;
c)the commencement date would be 4 December 2006;
d)
no fixed hours applied to the position and RAV would inform
Ms Degenhardt of hours “on an as required basis”;
e)RAV would remunerate Ms Degenhardt at the rate of $80.00 per 12-hour shift which covered “the on call component and up to 1.5 hours of actual work”;
f)
for any additional hours of actual work greater than the 1.5 hours worked in any 12-hour shift, RAV would remunerate
Ms Degenhardt at the rate of $30.00 per hour or pro rata if required; and
g)such payment was to be inclusive of the benefits of sick leave and annual leave.[4]
[4] Exhibit “GD1” to the affidavit of Gabrielle Degenhardt sworn 29 February 2016.
Pausing there, an issue in this case emerged about the legal interpretation of the phrase used in that letter “on-call”.
Turning to the terms of the letter, the obligation to substantiate the hours worked by Ms Degenhardt arose under item 4. It provided that Ms Degenhardt was required to submit to RAV timesheets “following the completion of each fortnight” that she worked.[5] The frequency of submission of timesheets was an issue in this litigation.
[5] Ibid.
RAV required Ms Degenhardt to refrain from undertaking any form of paid employment with any private ambulance transport service providers and from any organising, teaching or examining first aid or courses of study deemed by RAV to be in direct competition with RAV’s first aid services.
Ms Degenhardt did not raise any particular incident arising from the implementation of the terms recorded in the 13 November 2006 letter.
Neither party challenged before me the contractual status of the letter of 13 November 2006. It was true that the letter stipulated a particular method of acceptance that needed to be followed and which was not followed in this case. However, the circumstances of the offer and acceptance of the letter in this case was not such that any prescribed method of acceptance was mandatory. In other words, this case was not in the category of cases where the contract came into existence only if a precise method of acceptance was followed. In any event, a long line of authority at common law has held that an offeror (RAV here) will need to use very clear language before a method of acceptance will be treated as being mandatory. Those authorities include George Hudson Holdings Ltd v Rudder[6] and White Trucks Pty Ltd v Riley.[7]
[6] (1973) 128 CLR 387.
[7] (1948) 66 WN (NSW) 101.
Both parties proceeded on the basis that the letter dated
13 November 2006 was the agreement between them. Oddly,
the language used by the parties and their legal representatives did not go so far as to acknowledge that the letter dated 13 November 2006 was in fact and in law the contract of employment between RAV and Ms Degenhardt. Instead, the parties used imprecise and non-specific verbiage to characterise the nature and effect of the 13 November 2006 letter, such as –
a)
the phraseology in paragraph 2 of the amended statement
of claim in which the words used were “the applicant was employed by the respondent as a casual media officer the employment commenced 4 December 2006”[8] (verbatim);
b)the particulars subjoined to paragraph 2 of the amended statement of claim in which the words used were “the Applicant was appointed via letter dated 13 November 2006”;[9]
c)the wording adopted in paragraph 2 of the defence to amended statement of claim, namely “[s]ave to say that the Applicant was employed on a casual basis as a Media Liaison Officer, it otherwise admits paragraph 2”;[10] and
d)the wording of paragraph 1 of the agreed statement of facts, namely that Ms Degenhardt had commenced employment with RAV “under the terms of a letter of offer dated 13 November 2006”.[11]
[8] Amended statement of claim filed 2 December 2015.
[9] Ibid.
[10] Defence to amended statement of claim filed 22 December 2015.
[11] Exhibit “GD1” to the affidavit of Gabrielle Degenhardt sworn 29 February 2016.
For some unexplained reason, the parties in this proceeding willingly categorised the offer as being that reposed in the 13 November 2006 letter yet they were reluctant to commit to Ms Degenhardt having accepted that offer thereby forming an enforceable agreement in law. Throughout the trial of this proceeding the parties spoke of “letters of offer” rather than the “contract of employment”. The unambiguous evidence was that offers were accepted converting the contents of the offers into enforceable contracts.
The 2006 collective agreement
Ms Degenhardt contended in this case that a number of enterprise bargaining agreements applied to the arrangements between her and RAV, the first of which chronologically was the Rural Ambulance Victoria and Health Services Union (Management and Administrative Staff) Collective Agreement 2006.
RAV disputed that assertion.
One of the issues in this case was whether the three enterprise bargaining agreements referred to in the second of the two paragraphs numbered three in the amended statement of claim were incorporated into the employment regime between Ms Degenhardt and the respondent. Ms Degenhardt said they were whereas the respondent said they were not.
The contract formed upon acceptance of the 13 November 2006 offer was silent as to its duration. On its face, the contract was of indefinite duration. Of such contracts and their termination upon the giving of reasonable notice, the Court of Appeal of the Supreme Court of Victoria made observations in Husain v O & S Holdings Vic Pty Ltd.[12]
[12] [2005] VSCA 269.
It seemed, and by that I mean neither party contended to the contrary, that the regime prescribed by the contract that was formed upon accepting the offer dated 13 November 2006 continued up to and beyond 1 July 2008 when RAV and Metropolitan Ambulance Service merged to form AV.
It also appeared that nothing eventful emerged in the factual
setting of this dispute between the creation of AV in July 2008 and
9 October 2012. But on 10 October 2012 AV provided an offer of casual employment to Ms Degenhardt.[13]
[13] Exhibit “GD2” to the affidavit of Gabrielle Degenhardt sworn 29 February 2016.
The April 2013 contract
The letter dated 10 October 2012 was expressed to call for written acceptance. On 4 April 2013, Ms Degenhardt signed her version of the letter thereby forming a different contract of employment, the latter contract being between Ms Degenhardt and AV made 4 April 2013.
Ms Degenhardt’s solicitor who appeared before me during the trial of this proceeding paid next to no regard to the factual and legal significance of the phenomenon of Ms Degenhardt’s acceptance of the 4 April 2013 contract. He did not even acknowledge that a new contract was formed by it. But one was.
Let me explain.
The contract formed upon Ms Degenhardt’s acceptance of the
13 November 2006 offer continued from that date during the balance of the 2006 calendar year and through to the date of RAV’s merger to become AV. Upon the creation of AV, Ms Degenhardt’s agreement formed by her acceptance of the 13 November 2006 offer was novated by AV, expressly or impliedly. Thereafter, the novated agreement continued according to its terms, the only difference being the identity of the contracting parties. So, by 1 July 2008 when AV came into existence, Ms Degenhardt’s agreement was to be fully performed by her, unchanged, but the obligations that had fallen to be performed by RAV between 13 November 2006 and 1 July 2008 fell thereafter to be performed by AV. Rights inter se continued, unaltered.
When Ms Degenhardt communicated her acceptance of the proposal offered in AV’s 10 October 2012 letter, a new and different agreement came into existence. Ms Degenhardt signed her acceptance of the
10 October 2012 letter on 4 April 2013. There being no other evidence suggesting any other date for the communication of the acceptance of the offer, on the balance of probabilities I am willing to proceed on the basis that the contract between AV and Ms Degenhardt was made on
4 April 2013.
The 4 April 2013 contract had the effect of terminating by agreement the agreement made between Ms Degenhardt and RAV as novated by AV. One of the better and most concise distillations of the legal consequences of termination by agreement is set out in the decision of the High Court in Creamoata Ltd v Rice Equalization Association Ltd.[14]
[14] (1953) 89 CLR 286.
The solicitor for Ms Degenhardt did not analyse this case in those terms. For that matter, he wholly ignored the factual and legal effect of the 4 April 2013 contract, neither referring to it in Ms Degenhardt’s amended statement of claim nor addressing in paragraph 11 of
Ms Degenhardt’s affidavit sworn 29 February 2016 (exhibit 1).
The absence of any such reference to the contractual significance of the 4 April 2013 agreement in the amended statement of claim probably accounted for AV’s unhelpful denials, objections to pleadings and otherwise obdurate approach in paragraphs 4 – 21 of its defence to the amended statement of claim.
The solicitor for Ms Degenhardt in the running of the trial of this proceeding adopted a confusing approach towards the significance of the two contracts already mentioned. In the very early stages of the trial, when I invited the solicitor for Ms Degenhardt to open, I enquired about his contentions in respect of the contracts. Specifically, I asked for his opening on the issue of which of the contracts applied to the facts of the case. The exchange emerged in the following terms –
HIS HONOUR: So there’s an issue in the case about whether the contracts apply or the certified agreements apply; is that right? You just told me that
Mr Rinaldi’s ‑ ‑ ‑
MR ADDISON: I think my friend will be saying that both apply. I’m not going to put words in his mouth, your Honour, but I think that’s what my friend says.
HIS HONOUR: I need to know ‑ ‑ ‑
MR ADDISON: We say ‑ ‑ ‑
HIS HONOUR: Please don’t talk over me.
MR ADDISON: Sorry, your Honour. Sorry.
HIS HONOUR: You mustn’t do that. Is there a threshold point in this case that I must rule upon about the status, the legal status, of the contracts, whether you contend for it or Mr Rinaldi contends for it?
MR ADDISON: I think there probably will be.
HIS HONOUR: Well, you must know. That has got to be a threshold point.
MR ADDISON: I think it’s now conceded. It was in dispute for a significant period of time that the certified agreement did not apply.
HIS HONOUR: But that might be the history, but what is the present position?
MR ADDISON: The present position is that it is conceded the certified agreement does apply.
HIS HONOUR: Okay. So, that answers one leg of the double. What’s the answer to the other leg of the double?
MR ADDISON: The other answer to the other leg of the double, as I understand it, your Honour, is we say the contract is null and void. The respondent says the contract applies.
HIS HONOUR: So the answer is yes to both?
MR ADDISON: Yes.
HIS HONOUR: It’s a very long way to get to a question that’s fairly straightforward. That might explain why the estimate is four days in this case. Let’s keep going, Mr Addison.[15]
[15] Transcript of proceeding, 7 November 2016 at pp.4-5.
After opening to the effect that the contract (singular, so
Ms Degenhardt’s solicitor contended) was “null and void”[16] (whatever that expression meant as a matter of law) Ms Degenhardt’s solicitor opened to the effect that Ms Degenhardt relied on the on-call arrangement exhibited in the contract. The precise exchange on that point was as follows –
[16] Transcript of proceeding, 7 November 2016 at p.4.
MR ADDISON: Your Honour, the applicant’s employment was terminated in 2015.
HIS HONOUR: What were the grounds?
MR ADDISON: She was terminated because the respondent says that they had restructured their operations and they no longer required the applicant to be employed ‑ ‑ ‑
HIS HONOUR: All right.
MR ADDISON: ‑ ‑ ‑ as a casual employee. The applicant was employed as a casual employee, as I say, on this on-call arrangement.
HIS HONOUR: On the what, sorry?
MR ADDISON: On the on-call arrangement, which is exhibited in the contract. The applicant brings the application on the basis that she has been underpaid under the terms of the certified agreement. We say, as you know, your Honour, that the contract cannot survive, that the terms of the certified agreement must apply.
HIS HONOUR: That’s a threshold point that has to be determined.[17]
[17] Transcript of proceeding, 7 November 2016 at pp.5-6.
That confusing and inconsistent approach, apparent so early in the proceeding, was perpetuated in paragraph 8 of the agreed statement of facts where the parties agreed that Ms Degenhardt was responsible for responding to media enquiries in relation to operational incidents in rural Victoria. Any such responsibility emerged from the contract formed by Ms Degenhardt’s acceptance of the November 2006 offer or from the 4 April 2013 agreement. It could not and did not arise in any other way. Accordingly, the assertion by Ms Degenhardt’s solicitor that the contract was null and void raised doubt in my mind about the legal basis of Ms Degenhardt’s claim, or at least, about the way the case was cast on her behalf.
It is necessary to go to the precise terms of the April 2013 contract.
Clause 1 provided that Ms Degenhardt was employed by AV on a casual basis bearing the title “casual media liaison”. That much
was a continuation of the function and title provided for in the
agreement formed by Ms Degenhardt’s acceptance of the
13 November 2006 proposal.
Clause 1 contained in the second paragraph the following phrase –
As a casual employee, each occasion you are engaged to work may represent a separate and distinct engagement. You will be engaged on an hourly basis.[18]
[18] Exhibit “GD2” to the affidavit of Gabrielle Degenhardt sworn 29 February 2016.
The wording of the first sentence in that phrase suggested that on every occasion AV required Ms Degenhardt to perform some task, any such task was a specific, stand-alone retainer that commenced upon AV making the request and ceased upon Ms Degenhardt performing the requested activity. It suggested that no overarching employment relationship existed between Ms Degenhardt and AV and it suggested that Ms Degenhardt was no more than a piece-worker or hourly labourer. In the passages below I have addressed the legal aspects of the April 2013 contract on that and other points.
Continuing with the April 2013 contract, clause 2 stipulated
Ms Degenhardt’s place of employment, allegedly recorded in the schedule. The schedule contained no such stipulation. However,
clause 2 further stated that AV may require Ms Degenhardt to work at other locations operated by AV from time to time in the course of fulfilling her duties and responsibilities.
So far as her duties were concerned, clause 3 provided that
Ms Degenhardt was required to perform her work to a competent standard. It stated that she was required to accept the requirement (wording in the original) for flexibility in relation to work practices.
Clause 4 made provision for hours worked. It stated that as a casual employee, Ms Degenhardt would be rostered to work when required.
It stated that “whether Ms Degenhardt was engaged to work on a given day would vary according to the business needs of AV”.
By clause 5, AV required Ms Degenhardt to complete a timesheet at the start and at the end of each engagement. AV required Ms Degenhardt to provide her manager with a signed timesheet for approval and forwarding to AV’s payroll section. Clause 5 provided that AV would pay Ms Degenhardt fortnightly. The clause did not say from what date the fortnightly payment was reckoned – performance of work, submission of timesheet or approval.
Pausing there, if AV called upon Ms Degenhardt to work, for example, on only a few occasions in a particular calendar year, clause 5 operated in such a manner that Ms Degenhardt would perform the work,
then submit a timesheet before she could be paid for the work she did. The clause did not state that the entries on the timesheet required verification before AV paid Ms Degenhardt. A plain interpretation of clause 5 was that AV would pay Ms Degenhardt 14 days after she submitted a timesheet.
As to Ms Degenhardt’s rate of remuneration, clause 6 stipulated that AV would pay Ms Degenhardt at the hourly rate set out the schedule.
The rate recorded in the schedule provided yet a further arena of debate in this case. It stated that Ms Degenhardt’s gross rate of pay was “$87.42 per half day on call where a “half day” is a 12 hour period”.[19] It also stated that Ms Degenhardt’s gross rate of pay was at the modestly higher rate of “$90.04 per half day on call were a
“half day” is a 12 hour period from the first full pay period after1 December 2012”.[20][19] Exhibit “GD2” to the affidavit of Gabrielle Degenhardt sworn 29 February 2016.
[20] Ibid.
The schedule also provided that backpay was payable. The schedule used the phrase “Back-payment details”.[21] The phrase was curious but the contractual regime contemplated three periods, all historic,
by which AV was required to pay Ms Degenhardt at different rates.
The rates altered in very small amounts over the three periods.
[21] Ibid.
A point of construction arose in relation to the back payment regime in the schedule. It was this. The 2006 contract was of indefinite duration. Its provisions continued until superseded. The 2013 contract superseded the 2006 contract. According to ordinary canons of construction, contractual provisions operate prospectively, that is to say into the future and not retrospectively. That said, according to different canons of construction of the law of contract, parties are ordinarily free to enter into an agreement on such subjects and according to such terms as they may choose, that being the theory underpinning classic orthodoxy of freedom of contract. Of course, such freedom is not absolute. According to yet other canons of construction of the law of contracts, terms that operate a harshness upon one party are usually construed contra proferentum.
Neither party specifically addressed whether the back payment regime of the schedule to the 2013 contract applied retrospectively
in the manner it stated, that is to say, over the three periods from
4 October 2010 until 26 June 2011, from 27 June 2011 until
22 March 2012 and in the period from 23 March 2012 until
19 October 2012.
Returning to clause 6, in its second sentence the clause provided that the hourly rate of pay was inclusive of a casual loading paid in lieu of entitlements applicable to a full-time employees such as annual leave, personal leave, payments for the public holidays not worked, compensation for irregular work and for other benefits applicable to full-time employment that legislation did not require employers to pay to casual employees.
Clause 6 additionally provided that the remuneration AV would pay
Ms Degenhardt each fortnight also compensated Ms Degenhardt for any legal entitlement that arose under an award, workplace agreement or any other law relating to wages, periodic rate of pay, overtime, weekend and holiday penalties, shift allowance, vehicle allowance, travelling expense, other penalty payments or allowances and annual leave loading.
Among the general provisions of the 2013 contract was an exclusive submission to jurisdiction clause pursuant to which the contract was governed by the laws of Victoria and the parties submitted themselves to the exclusive jurisdiction of the courts of the State of Victoria.
So far as that last point was concerned, Ms Degenhardt’s solicitor ignored the stipulation in clause 18 by which the parties submitted themselves to the exclusive jurisdiction of the courts of the State of Victoria. On a charitable construction of events, that may have been because Ms Degenhardt asserted that neither the 2006 contract nor the 2013 contract applied to the facts and circumstances of this case.
It would be incorrect of me to venture a view about why this litigation was commenced in the Federal Circuit Court of Australia having regard to the express stipulation about the exclusive jurisdiction of the courts of the State of Victoria. The point was also wholly ignored by counsel for AV, who propounded the argument that the terms of the 2013 contract rather than any industrial awards wholly and exclusively governed the employment relationship between Ms Degenhardt and AV. But AV’s position on the application of awards in this case was as inconsistent as was Ms Degenhardt’s. In AV’s defence to the amended statement of claim filed 22 December 2015 AV pleaded in paragraph 5 that if any enterprise agreements asserted by Ms Degenhardt be applied to her employment, then they applied to the exclusion of any relevant award. While AV denied that the wages prescribed by the Ambulance Victoria (Management and Administrative Staff) Enterprise Agreement 2014 recorded in the table to paragraph 11 of the amended statement of claim applied to Ms Degenhardt, AV admitted that the wages in the table to paragraph 11 were the prescribed wages for full-time employees. Then in paragraph 6 of the agreed statement of facts AV agreed that Ms Degenhardt was entitled to payment as a casual employee under the enterprise agreement referred to in paragraph 5 including the applicable casual loading.
AV identified three enterprise agreements that it said applied to
Ms Degenhardt over different periods. They were as follows –
a)in the period between 4 December 2006 and 22 February 2011, the Rural Ambulance Victoria and Health Services Union (Management and Administrative Staff) Collective Agreement 2006;
b)in the period between 23 February 2011 and 15 December 2014, the Ambulance Victoria (Management and Administrative Staff) Enterprise Agreement 2011; and
c)from 16 December 2014 until Ms Degenhardt’s employment with AV ceased, the Ambulance Victoria (Management and Administrative Staff) Enterprise Agreement 2014.
Returning to the factual narrative, Ms Degenhardt swore in her affidavit made 29 February 2016 that her initial pay rate in 2006 was $80.00 per shift and that a shift was a 12-hour period. She swore that dayshift was between 7.00 a.m. to 7.00 p.m. Ms Degenhardt called an overnight shift from 7.00 p.m. until the following 7.00 a.m.
Ms Degenhardt swore that her first shift when she worked with RAV was an overnight shift. She said she was later allocated a regular roster of four back-to-back shifts from 7.00 a.m. on the relevant Tuesday to
7.00 a.m. on the relevant Thursday.
Ms Degenhardt described the nature of her role. She swore she answered media enquiries about incidents that occurred in rural Victoria. She said she was involved in between 20 to 30 calls per day most of which were spread between 6.00 a.m. and 11.00 p.m.
Ms Degenhardt said she spent time preparing for interviews or processing information after she had spoken to officers who attended an accident. She said she spent time “just waiting”.[22] By that I inferred she meant waiting for the next relevant piece of information to emerge in any given event that unfolded.
[22] Paragraph 22 of the affidavit of Gabrielle Degenhardt sworn 29 February 2016.
In her affidavit sworn 29 February 2016, Ms Degenhardt addressed the evolution of technology over the eight years of her employment with AV. She stated she took her telephone with her to bed at night to enable her to answer any call that came through overnight. Ms Degenhardt stated that with the emergence of social media, the demands of media increased and with that she was under increased pressure to be kept abreast of incidents and developments. She swore that she had two phones in the early days, one of which was available to paramedics and the other that she used to return calls after a message had been left.
Ms Degenhardt swore that she used a pager and that AV duty officers would page her during the day or overnight.
Ms Degenhardt swore that she took six weeks off in the eight years of her employment with RAV and AV.
Ms Degenhardt swore she worked each Monday and Tuesday then overnight into Wednesday every week, irrespective of public holidays.
Upon Ms Degenhardt’s return to work in April 2015 following surgery in March of that year, AV terminated her employment.
Ms Degenhardt swore she was paid $320.00 for four shifts. She also swore that she worked eight shifts each of 12-hours duration over a two-week period at a rate of $90.04 per shift.
A factual dispute arose in this case about the times Ms Degenhardt received messages requiring her to engage in her role as media officer. She swore she received messages from 5.00 a.m. onwards throughout the day until 11.00 p.m. Ms Degenhardt said AV required her to respond as soon as a message was left for her. In the period between December 2014 and March 2015, she swore she made 425 calls, averaged to around 30 calls per day. She said AV required her to respond to any messages left and to do so immediately.
Without objection, Ms Degenhardt put into evidence –
a)the Rural Ambulance Victoria and Health Services Union (Management and Administrative Staff) Collective Agreement 2006;[23]
b)the Metropolitan Ambulance Service and Health Services Union (Management and Administrative Staff) Collective Agreement 2006;[24]
c)the Ambulance Victoria (Management and Administrative Staff) Enterprise Agreement 2010;[25] and
d)the Ambulance Victoria (Management and Administrative Staff) Enterprise Agreement 2014.[26]
[23] Exhibit “GD9” to the affidavit of Gabrielle Degenhardt sworn 29 February 2016.
[24] Exhibit “GD10” to the affidavit of Gabrielle Degenhardt sworn 29 February 2016.
[25] Exhibit “GD11” to the affidavit of Gabrielle Degenhardt sworn 29 February 2016.
[26] Exhibit “GD12” to the affidavit of Gabrielle Degenhardt sworn 29 February 2016.
AV’s version of events
Two witnesses gave evidence for AV on the question of liability - Peggy Barrow and Philip Shane Cullen. Let me briefly narrate the evidence of each.
Ms Barrow stated in her affidavit sworn 23 May 2016 that she was a human resources partner employed by AV. Her title was curious as AV was not a partnership. Be that as it may, she stated she commenced in that role on 1 August 2012.
Ms Barrow stated that AV employed media liaison officers to ensure that appropriate information regarding emergencies, ambulance issues and major events was disseminated to the community by electronic and print media.
Ms Barrow gave evidence after having reviewed AV’s personnel file. She admitted in cross-examination that her evidence was drawn entirely from reading AV’s documents and no other documents. She did not review timesheets. Ms Barrow was specifically questioned on her state of knowledge that enabled her to record paragraph 10(i) of her affidavit that Ms Degenhardt “generally worked two shifts per week”[27] saying “I don’t know”.[28] She said in cross-examination that she could not remember whether she had been told to write the words in paragraph 10(i) of her affidavit. Conversely, she specifically recalled that she did not read Ms Degenhardt’s affidavit prior to Ms Barrow swearing her own.
[27] Paragraph 10(i) of the affidavit of Peggy Barrow sworn 23 May 2016.
[28] Transcript of proceeding, 8 November 2016 at p.5.
Most of Ms Barrow’s evidence was unhelpful. However, she did produce Ms Degenhardt’s position description from AV’s human resources file,[29] a document that Ms Degenhardt did not produce.
To that extent, but to that extent only, I found Ms Barrow’s evidence useful. The position description of media officer (casual) with RAV stated that the primary objective of that role was to support the manager of corporate communications and media in the coordination of media and public relations activities by providing relevant information on newsworthy incidents to media outlets in a manner that represented RAV positively.
[29] Exhibit “PB-4” to the affidavit of Peggy Barrow sworn 23 May 2016.
The position description further provided that, without referral to the manager, the media officer was responsible for managing liaising between RAV and the media on an “on-call” basis and for providing information to the media relating to RAV’s involvement in newsworthy incidents. After consultation with the manager or others, the
media officer was responsible for communicating with the media and major events and for producing internal publications.
The performance description of the media officer (casual) provided that the media officer’s performance in the field of media communications was to be measured by four things, namely, accessibility of on-call contact, effectiveness of media and paramedic liaison, accuracy and timeliness of the information disseminated and the effectiveness of interviews in raising RAV’s positive profile.
AV’s second witness was its public affairs manager, Mr Cullen.
His affidavit[30] was extremely detailed and on first examination of it, told of an informed, careful witness whose evidence had been meticulously considered based on a detailed command of the facts of this case.
[30] Affidavit of Philip Shane Cullen sworn 23 May 2016.
Mr Cullen’s appearance in the witness box told a very different story.
Mr Cullen gave a particular version of events in relation to his approval of timesheets against which Ms Degenhardt was paid. Bearing in mind that AV’s case in this litigation was to the effect that Ms Degenhardt was required to work two shifts, and not beyond, Mr Cullen admitted that he as the relevant manager authorised AV to pay Ms Degenhardt on the basis that she worked for four shifts. He said several times in cross-examination that he approved her timesheet every fortnight on the basis of her having worked four shifts.
Mr Cullen attempted to distance himself from having approved
Ms Degenhardt’s timesheets on the basis of her having worked four shifts. He said he had no knowledge of her having worked four shifts. Mr Cullen also said he did not “look at it as [Ms Degenhardt] working four shifts”.[31] He also said Ms Degenhardt responded to certain calls outside of working hours. Mr Cullen was pressed on whether he made an error in authorising Ms Degenhardt to be paid on the basis that she worked four shifts or whether, despite his seemingly contradictory evidence on point, he authorised Ms Degenhardt to be paid for having worked four shifts because she in fact had worked four shifts. His response was in the following terms –
[31] Transcript of proceeding, 8 November 2016 at p.13.
HIS HONOUR: Mr Cullen, can you help me out? I must – I’m a few questions back. Have I got this right?
You signed authorisations for payments to be made to Ms Degenhardt on the basis that she had worked, in the relevant pay period, four shifts. Have I understood you correctly to be saying that?‑‑‑If the piece of ‑ ‑ ‑
It’s a yes or no answer?‑‑‑Sorry. Could you repeat the question, your Honour?
Listen … carefully. You signed authorisations for Ms Degenhardt to be paid on the basis that she had worked four shifts. Have I understood your evidence correctly?‑‑‑That’s right.
And are you now saying that either your signature to those authorisations was wrong in that she had not worked four shifts, or that there is some other basis upon which you authorised her to be paid for having worked for four shifts when she had not in fact? Do you understand what I’m asking you?‑‑‑I do. But the – as the piece of paper was given to me – this is what ‑ ‑ ‑
Well ‑ ‑ ‑?‑‑‑Sorry.
Maybe it might have been given to you having been prepared by someone else …?‑‑‑Yes.
But the bottom line is you, as manager, signed it …?‑‑‑Yes.
And you were the voice of the company at the time?‑‑‑Yes.
You authorised her payment to be made in accordance with its terms?‑‑‑Yes.
Does it not follow that you were satisfied, having signed it, that she was entitled to be paid in accordance with it?‑‑‑I was certainly satisfied that that was how her pay structure had been formulated.[32]
[32] Transcript of proceeding, 8 November 2016 at pp.11-12.
A little later, after detecting how Mr Cullen was vacillating in his evidence, Ms Degenhardt’s solicitor extracted the following admission from Mr Cullen –
MR ADDISON: She was paid four shifts because she worked four shifts, didn’t she?‑‑‑Well, I wasn’t aware of her working four shifts – or I didn’t look at it as it being – as having worked four shifts.
Well, you make deliberate comments in your affidavit material to say that she didn’t work four shifts, she only worked two shifts. But you’ve got no knowledge of that, have you?‑‑‑No knowledge of ‑ ‑ ‑
The arrangements. I think you’ve said ‑ ‑ ‑?‑‑‑Yes.
… in an answer two questions ago, that there was a longstanding arrangement. It was in place before you came. You didn’t change her terms and conditions of employment, and you continued to sign her timesheet for two years, every fortnight, authorising four shifts?‑‑‑Yes.[33]
[33] Transcript of proceeding, 8 November 2016 at p.13.
To my mind, that evidence in the previous exchange with Mr Cullen recorded above was wholly inconsistent with the case advanced by AV in this litigation. I reject AV’s assertion that Ms Degenhardt was only required to respond to media calls between 7.00 a.m. and 7.00 p.m.
Mr Cullen himself admitted (still further in a manner inconsistent with other evidence) that Ms Degenhardt regularly and on a systemic basis responded to calls outside of the hours 7.00 a.m. to 7.00 p.m. That admission by Mr Cullen was, at least to that extent, consistent with the fact that he authorised AV to pay Ms Degenhardt on the basis that she worked for an extended period beyond the hours of 7.00 a.m. to
7.00 p.m.
It will be recalled that Ms Degenhardt’s two contracts of employment (that is to say the 2006 contract and the 2013 contract) incorporated a requirement that she was to be “on-call”. AV took issue with
Ms Degenhardt’s contentions in this case that she was in fact “on-call” during relevant times. Ms Degenhardt denied that Mr Cullen instructed her that she was not required to take calls at night. She said her telephone could not be turned off. In a disarmingly frank manner she said “I had the phone next to my bed for the eight and a half years”.[34]
[34] Transcript of proceeding, 7 November 2016 at p.42.
Ms Degenhardt also disputed the suggestion that in August 2014, during a visit to Ms Degenhardt’s home, Mr Cullen told her that she did not need to answer calls outside hours. Ms Degenhardt’s denial was in relation to a very broad, imprecise and badly expressed statement in paragraph 49 of Mr Cullen’s affidavit in which he glibly asserted that “there was no expectation that [Ms Degenhardt] would answer calls overnight”.[35] He did not descend to the detail by revealing who held that expectation or how that expectation arose and he did not say what was the content of any such expectation. At all events, Ms Degenhardt denied what Mr Cullen said on point. She also denied his assertion that he instructed her in August 2014 not to answer calls outside of hours.
[35] Affidavit of Philip Shane Cullen sworn 23 May 2016 at p.15.
I prefer Ms Degenhardt’s evidence over that of Mr Cullen on those two matters. I say that are several reasons. First, I observed Mr Cullen in the witness box and heard not only what he said but how he said it. Likewise I observed Ms Degenhardt in the witness box and heard not only what she said but how she said it. On critical issues
Ms Degenhardt was more precise and more definite than was
Mr Cullen. Her recall on key issues was more accurate than was
Mr Cullen’s. For a sustained period, Ms Degenhardt’s sole source of income was the earnings she derived from AV. Unsurprisingly, she was more likely to have been focused on events involving AV, especially issues concerning her remuneration than was Mr Cullen likely to be focused on matters concerning a casual employee of AV. Further,
I formed the impression that Ms Degenhardt was a careful witness who gave honest, considered evidence making appropriate concessions when required. On the other hand, I formed the view that Mr Cullen was one of AV’s relatively senior middle management employees whose role fluctuated within AV. As at the date on which he swore his affidavit in this proceeding, Mr Cullen was responsible for managing ministerial events, overseeing social media accounts and he was a leader and manager of AV’s media team comprised of six other employees. Mr Cullen’s command of the detail of events to which he swore in this litigation was poor. In his affidavit he gave a very precise recital of various matters, drawn largely from his reading of documentation, such as telephone records. Based on those records he stated in his affidavit the dates, the number and the duration of calls made by Ms Degenhardt. Yet when Mr Cullen was challenged during cross-examination he gave an array of answers to questions that, to my way of thinking, demonstrated that he was not a careful witness. Let me catalogue some of them.
Mr Cullen stated that Ms Degenhardt only needed to respond to media calls between 7.00 a.m. and 7.00 p.m. Mr Cullen then conceded she responded to calls outside of those hours. As mentioned above, he conceded that was erroneous.
When his error was pointed out to him, Mr Cullen’s response was “[b]ut at the time, obviously it didn’t dawn on me”.[36]
[36] Transcript of proceeding, 8 November 2016 at p.15.
Despite Mr Cullen’s adamant approach, initially at least, and his emphatic statement in his affidavit concerning the way Ms Degenhardt only worked between 7.00 a.m. and 7.00 p.m., he readily conceded that Ms Degenhardt received calls from journalists over 24 hours of the day of the week on which she was rostered.
Further, despite the emphasis he placed in his affidavit that he instructed Ms Degenhardt not to deal with calls outside of those hours, he conceded that telephone records showed she did in fact take calls outside those hours.
Further, Mr Cullen said he instructed Ms Degenhardt not to work four shifts yet he conceded he authorised AV to pay her on the basis that she had in fact worked four shifts. When pressed why he gave inconsistent evidence, the following exchange took place –
HIS HONOUR: Well, so far there’s evidence that you paid her for four shifts. You’re a careful man, you only follow company policy, you’re a careful and prudent manager and you only pay people when they’re entitled to be paid. You don’t waste the company’s money by paying people who are not entitled to be paid. Does it follow that you paid her because she was entitled to be paid or did you pay her because you made an error? That’s what I’m trying to work out?‑‑‑Yes. Well - and I - it’s hard for me to answer other than the fact that the sheets were in front of me and I - I’m sorry.
Yes. But that’s not a good answer, is it, because a manager has to accept responsibility for the things that he manages?‑‑‑Yes.
One of which is paying people?‑‑‑Yes. I will accept that.
So can you help me with the direction that this is all going in?‑‑‑Obviously I hadn’t gone through this process. I see the call records show that she was making those calls overnight. On a
day-to-day basis it wasn’t my expectation that she would be responding to phone calls in the middle of the night. In fact, we discourage people - we discourage the media and we discourage anyone of the media team to be responding to overnight messages. And I was paid, if you like, an allowance in order to be, you know, available to respond to those things.[37]
[37] Transcript of proceeding, 8 November 2016 at p.23.
Mr Cullen conceded that his instructions to Ms Degenhardt for her not to take calls during the night was not an emphatic instruction and that he made no check for approximately one month after the giving of that instruction to ensure compliance. For the purpose of preparing to give his evidence, Mr Cullen said he did not check all the phone records after his conversation with Ms Degenhardt to ensure that she complied with the so-called instruction.
Mr Cullen said he did not know whether Ms Degenhardt did radio interviews but he said he expected that prior to any such radio interview, she would have carefully planned. I inferred from that that he meant that Ms Degenhardt would have carefully planned and researched the subject matter of her radio interview as well as the precise words she intended to say.
Mr Cullen said several times in his evidence that an event “would have happened”. Yet he conceded, when pressed, that he had no direct knowledge that the event had or had not taken place notwithstanding that he had earlier said that the event would have happened.
In reference to a serious incident referred to in paragraph 37(d) of his affidavit, Mr Cullen was asked whether he was guessing at that evidence to which he said he was, using the expression “I am. Yes. Yes”.[38]
[38] Transcript of proceeding, 8 November 2016 at p.29.
Mr Cullen was asked whether Ms Degenhardt was or was not paid in excess of her shifts. He said he did not know.
Mr Cullen said he was not aware that Ms Degenhardt used her home phone as well as a mobile phone to make telephone calls.
From that survey of Mr Cullen’s evidence it will be apparent that –
a)his evidence quickly altered when he was challenged on a particular point;
b)he guessed at aspects of his evidence;
c)when pressed he did not dispute aspects of Ms Degenhardt’s evidence on particular issues;
d)on certain issues he had no direct knowledge of the event on which he spoke and used phrases such as “would have happened”;
e)on indisputable information taken from phone records his evidence was accurate;
f)on the subject of shifts worked, he was the AV witness who authorised Ms Degenhardt to be paid on the basis that she worked four shifts; and
g)he had actual knowledge that Ms Degenhardt worked beyond a shift that commenced at 7.00 a.m. and ended at 7.00 p.m.
Insofar as Mr Cullen’s evidence conflicted on any point with the evidence of Ms Degenhardt, I prefer Ms Degenhardt’s evidence.
As mentioned above, in my view Ms Degenhardt was a careful witness. Conversely, Mr Cullen was very far from being a careful witness.
The evidence revealed that Ms Degenhardt was in fact working essentially 24 hours while rostered to work. She regularly took calls earlier than 7.00 a.m. and later than 7.00 p.m. Ms Degenhardt was expected to be able to receive and deal with media enquiries at all times, irrespective of the actual time of day. Insofar as Mr Cullen said something different, I reject his evidence.
In answer to the first issue that fell for my determination, I find that AV required Ms Degenhardt to work four shifts.
The source of the remuneration obligations
The source of the obligations as to Ms Degenhardt’s remuneration,
its rate and its specific terms along with other entitlements was disputed by AV. An array of sources was suggested by the parties, agreement being reached in respect of a handful only.
The parties alleged that the totality of the sources of the provisions about Ms Degenhardt’s remuneration and entitlements were set out in –
a)the 2006 contract;
b)the 2013 contract;
c)the Rural Ambulance Victoria and Health Services Union (Management and Administrative Staff) Collective Agreement 2006;
d)the Metropolitan Ambulance Service and Health Services Union (Management and Administrative Staff) Collective Agreement 2006;
e)the Ambulance Victoria (Management and Administrative Staff) Enterprise Agreement 2010;
f)the Ambulance Victoria (Management and Administrative Staff) Enterprise Agreement 2011; and
g)the Ambulance Victoria (Management and Administrative Staff) Enterprise Agreement 2014.
The only common ground was that the enterprise agreements of 2006, 2011 and 2014 applied. All other sources of provisions about
Ms Degenhardt’s rates of remuneration and other entitlements were not the subject of agreement. It became necessary for me to pronounce upon the applicability of those other provisions concerning
Ms Degenhardt’s remuneration.
Chronologically, the first alleged was the 2006 contract. It will be recalled that the solicitor for Ms Degenhardt asserted in respect of that contract –
[W]e say the contract is null and void. The respondent says the contract applies.[39]
[39] Transcript of proceeding, 7 November 2016 at p.5.
Counsel for AV stated in his opening that in relation to the interaction between the contract and the award each was a distinct instrument,
one being a matter of private agreement and the other being a statutory derivative. However, counsel for AV submitted that the enterprise agreement provisions prevailed to the extent that any inconsistency between it and the 2006 contract emerged.
Authority of very long standing in the industrial law arena has made pronouncements about the interrelationship between a private contract inuring between an employer and an employee and a certified agreement. The certified agreement controls a relationship as to all matters to which it applies. The High Court of Australia held as much in a series of cases that have included Amalgamated Collieries of WA Ltd v True.[40] There, the High Court of Australia traced the learning to the early twentieth century and made several observations of relevance to this case. Latham CJ held that when any person is employed to do work to which an award applies, the parties are bound by a contract in which their legal relations are in part determined by the contract between them and in part by the award. Latham CJ held that an award never deals with all the matters that affect the relations of any particular employer and any particular employee. Applying what was held in Mallinson v Scottish Australian Investment Co Ltd,[41]
Latham CJ held that the contract of employment conferred on the employee the right to remuneration but the award substitutes the method of determining the amount of remuneration.
[40] (1938) 59 CLR 417.
[41] (1920) 28 CLR 66, 73.
In Ansett Transport Industries (Operations) Pty Ltd v Wardley,[42] Wilson J of the High Court of Australia held that an award seldom “completely, exhaustively or exclusively”[43] expresses the law governing the contract between the parties. His Honour said –
It will generally be a case of specific provisions which will,
of course, have the effect of rendering inoperative any provisions of subordinate law, whether common law or statutory, touching that employment with which they are inconsistent.[44][42] (1980) 142 CLR 237.
[43] (1980) 142 CLR 237, 287.
[44] Ibid.
In Byrne v Australian Airlines Ltd,[45] similar observations were made. There, the majority (Brennan CJ, Dawson and Toohey JJ) held as follows –
[45] (1995) 185 CLR 410, 421.
In a system of industrial regulations where some, but not all,
of the incidents of an employment relationship are determined by award, it is plainly necessary that the contract of employment should provide for those matters already covered by the award. The contract may provide additional benefits, but cannot derogate from the terms and conditions imposed by the award and, as we have said, the award operates with statutory force to secure those terms and conditions.[46]
[46] (1995) 185 CLR 410 at [11].
More recently, in the 2005 decision of the High Court of Australia in Visscher v Honourable President Justice Giudice[47] (“Visscher”), Gummow J made observations to the effect that the certified agreement controlled the relationship between employer and employee as to all matters to which the certified agreement applied.
[47] [2009] HCA 34.
The plurality (Heydon, Crennan and Kiefel JJ – as the Chief Justice then was – and Bell JJ) held that a certified agreement prevails over terms and conditions specified in the state law, award or agreement,
to the extent of any inconsistency. The plurality further held that an agreement made under the Workplace Relations Act 1996 (Cth) was binding on the employer and all persons whose employment was, when the agreement was in operation, subject to the agreement.
Accordingly, the proposition as advanced by Ms Degenhardt’s solicitor to the effect that that the 2006 contract or the 2013 contract were
“null and void”was incorrect. The correct position was that recorded by Gummow J in Visscher, namely that the certified agreement prevailed over the terms and conditions in the 2006 and 2013 contracts to the extent of any inconsistency.
The next question was whether the collective agreement mentioned above and the enterprise agreements also mentioned above applied to Ms Degenhardt.
Construction of industrial agreements is to be undertaken in accordance with a distinct body of learning propounded by the High Court of Australia as interpreted by the Federal Court of Australia. Mortimer J most usefully summarised the relevant principles in Polan v Goulburn Valley Health.[48] The points may be condensed into the following propositions –
[48] [2016] FCA 440.
a)
first, like other instruments creating normative rules such as statutes and regulations, industrial instruments are to be construed in accordance with their language or text, taking into
account the context in the wider scheme or structure of the instrument, support for which is found in cases such as
Lacey v Attorney-General (Qld)[49]and Certain Lloyd’s Underwriters v Cross;[50]
b)second, extrinsic material may be considered for the purpose of construing text and structure, support for which is found in such cases as Lee v New South Wales Crime Commission,[51] Akiba obh of Torres Strait Regional Seas Claim Group v Commonwealth of Australia[52] and Independent Commission Against Corruption (NSW) v Cunneen;[53]
c)third, any construction of an industrial instrument should contribute to a sensible industrial outcome such as would be attributable to the parties who negotiated and executed the industrial agreement, support for which is found in Amcor Ltd v Construction, Forestry, Mining and Energy Union; Minister for Employment and Workplace Relations v Construction, Forestry, Mining and Energy Union[54] (“Amcor”);
d)fourth, canons of interpretation found in the Acts Interpretation Act 1901 (Cth) do not impose obligations to construe the instrument in a way that best achieves the object of the instrument, as was canvassed in Toyota Motor Corp Australia Ltd v Marmara;[55]
e)fifth, a purposive approach to the construction of the terms of an industrial instrument is required, as her Honour held in Polan; and
f)sixth, the construction of an industrial agreement will be the same whether the relevant agreement was a certified agreement made under the Workplace Relations Act or an enterprise agreement made under the Fair Work Act 2009 (Cth), as her Honour said in Polan.
[50] [2012] HCA 56.
[51] (2013) 251 CLR 196 at [45].
[52] (2013) 250 CLR 209 at [31].
[53] [2015] HCA 14.
[54] (2005) 222 CLR 241 at [96].
[55] (2014) 222 FCR 152.
[49] (2011) 242 CLR 573.
In general, ordinary words or words that are well understood are to be accorded their ordinary or usual meaning. So much was held by Madgwick J in Kucks v CSR Ltd[56] (“Kucks”) as adopted by Northrop J in Ambulance Service Victoria v ALHMWU.
[56] (1996) 66 IR 182.
So much for principles of construction.
It seems to me that the position may be condensed to the following concepts. The 2006 contract applied from Ms Degenhardt’s commencement with RAV up to the date of that contract’s novation with AV in 2008. Thereafter, it applied between Ms Degenhardt and AV from the date of its novation (2008) up to April 2013 when the
2006 contract was discharged by agreement. From April 2013 until the date on which Ms Degenhardt ceased employment with AV, the
2013 contract applied.
As has been mentioned above, those two employment contracts recorded the fact of Ms Degenhardt’s employment and they made stipulations that bound her and RAV as well as AV insofar as any stipulations in those contracts were not inconsistent with a provision in one of the industrial agreements that applied in this case.
Several industrial agreements applied to Ms Degenhardt’s employment over the duration of her employment. I have set them out above and there is no point in reciting them again. Those industrial agreements were superseded on a regular basis. In the usual course of events, unless expressly stated to the contrary, the contractual provisions in operation at the time of the breach or claim was the provision
that applied. From example, if a particular claim related to the
enterprise agreement in operation between 23 February 2011 and
15 December 2014, the relevant applicable provision was to be found in the Ambulance Victoria (Management and Administrative Staff) Enterprise Agreement 2011.
In this litigation, various rates of remuneration were stipulated.
For example in the 2013 contract, in the schedule, various gross rates of pay were set out. To the extent that the relevant industrial agreement provided for gross pay, the industrial agreement prevailed. Likewise,
in relation to superannuation, the 2013 contract made stipulations about that. To the extent that the relevant industrial agreement was inconsistent with those provisions, the industrial agreement’s provisions prevailed.
The parties in this litigation were in dispute as to the rate of pay. Insofar as the relevant industrial agreement made provision for the rate or those rates, then that provision or those provisions prevailed.
On-call
The phrase “on-call” has been raised in a number of authorities. However, none have a factual parallel to this case. The authorities to which I have referred below have construed the phrase “on-call” on the specific facts of the particular case then under consideration.
They provide limited guidance on a more general level in respect of a broader application of the phrase. That said, it is useful to distil certain points of principle that arise from the authorities.
One of the more useful considerations of the phrase “on-call” was given in the decision of the Full Court of the Federal Court of Australia (Lee, Finkelstein and Gyles JJ) in Warramunda Village Inc v Pryde[57] (“Warramunda”). There, Finkelstein J held as follows –
An employee who is required to be “on call” is an employee who must attend at work when called to do so.[58]
[57] (2002) 116 FCR 58.
[58] (2002) 116 FCR 58 at [43].
Other cases have flirted with the interpretation of the phrase yet none has pronounced in the manner that Finkelstein J did in Warramunda. For example, in Ambulance Service Victoria (South Western Region) v Australian Liquor, Hospitality & Miscellaneous Workers Union[59] (“Ambulance Service Victoria v ALHMWU”), Northrop J was concerned with certified agreements that included the phrase “on-call”. His Honour did not consider what was envisaged by the notion of a person being “on-call”. Similarly, in Chief Commissioner of Police v Kerley,[60] the Full Court of the Federal Court of Australia was concerned with entitlements to on-call allowances. No interpretation was offered of the expression. Likewise, in Royal Melbourne Institute of Technology v National Tertiary Education Industry Union[61]
(“RMIT v NTEIU”), Lander J decided a proceeding where an employee’s entitlement to on-call allowance was in issue. However, no observations of general application were made. In Polan, Mortimer J adopted the reasoning of Finkelstein J in Warramunda that I have set out above. Her Honour said the following –
In my opinion, insofar as the distinction made by Gyles J has general application, it is appropriately applied to the circumstances in the present proceeding. I do not consider it can be said that when the applicant was away from the workplace, and outside her ordinary working hours, but required to be ready and available to take calls so as to rearrange the rosters and shifts of doctors, she was performing her duties of employment. Rather, she was on-call. Once she received and made calls, and commenced trying to find replacement doctors or locums,
and rearrange shifts, then she was performing the duties of her employment and was entitled to be remunerated for it. The real question therefore is: in what manner?[62][59] (1998) 80 IR 275.
[60] (2008) 171 IR 420.
[61] (2011) 203 IR 294.
[62] [2016] FCA 440 at [68].
According to her Honour, “duties of employment” did not on the facts of that case include being –
a)away from the work place;
b)outside ordinary working hours; or
c)required to be ready and available to take calls.
When doing those things, her Honour said the employee was on-call.
On the facts of this case, that was precisely Ms Degenhardt’s situation. When doing those things identified immediately above, Ms Degenhardt was similarly on-call for the purposes of her employment with AV.
In my judgment, AV required Ms Degenhardt to be available, ready and able to take calls and to deal with them in accordance with its instructions at all times. She did not have a defined workplace and AV acquiesced in her working mostly from home so long as she performed her duties.
AV contended that Ms Degenhardt could not simultaneously be
“on-call” while concurrently working. Counsel for AV submitted that Ms Degenhardt could not be remunerated on an hourly rate for the period during which she was on-call. Instead, he submitted
Ms Degenhardt could only be remunerated on an hourly basis for such time as may be counted as actual time involved in taking or making calls. Somewhat theatrically, and unsupported by any evidence of other salaries paid to AV employees, counsel for AV contended that
Ms Degenhardt would be likely to be the highest paid AV employee if Ms Degenhardt were paid at a full casual hourly rate for all hours she was on-call, whether at leisure or asleep.
Insofar as any determination of the issue lies in the construction of an industrial instrument, I am required to construe the 2014 enterprise agreement so as to achieve “a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the [industrial] Agreement” as was held by the High Court in Amcor.
To my way of thinking, it was erroneous for AV to construe
Ms Degenhardt’s tasks to have been limited to taking or making phone calls. To relegate her tasks to such seemingly trivial activities was to reduce the significance of her role apropos the media and to assume that every media communication with her could be addressed without preparation, investigation, conferences and discussions among more senior AV personnel. Naturally, certain telephone calls were routine. Others required investigation, research and preparation. In relation to those calls in the latter category, the duration of the relevant telephone call told only a small portion of the actual duration of the time that was involved. Mr Cullen admitted in cross-examination that Ms Degenhardt was not permitted to tell media the first thought that came into her head, that he expected Ms Degenhardt to be careful in speaking on community radio, that it was absolutely impermissible for
Ms Degenhardt to reveal the identity of the victim of an accident and that he expected Ms Degenhardt to spend time considering what she was to say on community radio. He agreed that when Ms Degenhardt was talking to The Age, to the Herald Sun, to the Bendigo Advertiser or to any other newspaper Ms Degenhardt would speak to each carefully, thoughtfully and accurately.
It is a fair inference from Mr Cullen’s evidence, especially his evidence of AV’s requirement that Ms Degenhardt was careful and considered in her response to media enquiries, that time and effort had to be devoted to preparing for the presentation of any considered response to a media enquiry. Time spent by Ms Degenhardt taking or making telephone calls was not part of the research, investigation and information gathering that Ms Degenhardt had to do in order to carefully, thoughtfully and accurately communicate with the media. And while the duration of telephone calls was objectively ascertainable, the time spent considering, investigating or researching an issue was less precisely quantifiable. Nevertheless Ms Degenhardt was entitled to be paid for those activities. Construing the 2014 industrial agreement in that way is wholly consistent with the observations of the High Court of Australia in Amcor.
Next, when Ms Degenhardt was “on-call” in the manner she was required to be under her contract of employment, in my judgment she was entitled to be paid. Finkelstein J held in Warramunda that “[p]rovided the worker is available to carry out his duties, he has earned his pay”.[63] In answer to the point put by counsel for AV when he submitted that Ms Degenhardt should not be paid while sleeping, the issue has already been answered by Burt CJ, Wickham and Wallace JJ in the Western Australian Industrial Appeal Court in Hospital Employees’ Industrial Union v Proprietors of Lee-Downes Nursing Home.[64] There, the court held that the worker was entitled to be paid while on work premises pursuant to her employer’s instructions. In that case, the court held that the relevant worker was entitled to be paid while sleeping while also on-call.
[63] (2002) 116 FCR 58 at [36].
[64] (1977) 57 WAIG 455.
In Warramunda, Finkelstein J explained how the provisions of the relevant sleepover shift clause operated in relation to a person working on-call. His Honour was concerned with a personal care worker whose job required that personal care worker to be at a place of work and,
on occasions, to be on a sleepover shift. Finkelstein J held that once it is accepted that a personal care worker who is on a sleepover shift is relevantly working, the worker cannot at the same time be “on-call” for the purposes of a particular clause in an industrial agreement.
His Honour held that an employee who was required to be “on-call” is an employee who must attend at work when called to do so.
His Honour said that until the employee is called to attend work, he is not working and that, by contrast, a worker on a sleepover shift is always at work. Finkelstein J held that a worker cannot be “on-call” and “at work” at the same time.
His Honour was firm in the pronouncement that the worker cannot be
“on-call” and “at work” at the same time. That rather beggared the question in this case. That case concerned, among other things, the physical location of the relevant worker. While on sleepover shift the worker was “at work” in the sense that the worker was at the employer’s premises. That was an altogether different factual situation to the one with which Ms Degenhardt was concerned in this case. She did not work at her employer’s place of business. She worked from her home or from such location as she selected. Ms Degenhardt was required to be on-call for a certain period of time, yet when telephoned or making telephone calls while working, she was not required to leave her home. By the same token, she could have received a telephone call with a media enquiry when she was physically anywhere. By no construction of the evidence was she required to leave her home and attend her employer’s place of business in order to commence the performance of her duties.
The issue of the physical location at which Ms Degenhardt worked was the subject of a great deal of evidence. Ms Degenhardt gave evidence that she needed to be where she could take or make calls and where it was not noisy in the case of radio interviews. She said the media was not aware whether she was at a desk at home or in her car using the mobile telephone. She was not challenged about that evidence.
Ms Degenhardt said the rural enquiry line was always open. She was challenged about her response. She was resolute that she was required to and did in fact answer calls beyond the period between 7.00 a.m. to 7.00 p.m. To my mind, Ms Degenhardt adopted a pragmatic and sensible approach of keeping her telephone by her side at all times so as to be able to respond, and in fact responding to media enquiries whenever those media enquiries were made. Common sense revealed that breaking news was not limited to a 12-hour shift.
In this case, the stipulated hours of the relevant shift did not define when and whether Ms Degenhardt was working. The evidence revealed that media enquiries could have and did reach her almost any hour of the day and that AV required her to respond to those calls. I accept that AV would have regarded it as unacceptable for her to have insisted that hours were strictly between 7.00 a.m. and 7.00 p.m. In that regard,
I found the evidence of Ms Degenhardt to be preferred to that of
Mr Cullen. As has been mentioned above, I found him to have been a witness who was unreliable on issues that were important.
Counsel for AV in written submissions[65] argued that Ms Degenhardt could only be remunerated on an hourly basis for such time as she was involved in the task of taking or making telephone calls. He argued that if Ms Degenhardt were to be paid her full casual hourly rate for all the hours she was on-call, let alone penalty rates, “she would be likely to be the highest paid employee” of AV.[66] He said such a result was certainly not a “sensible industrial outcome”. [67]
[65] Respondent’s closing submissions filed 23 November 2016.
[66] Paragraph 56 of the respondent’s closing submissions filed 23 November 2016.
[67] Ibid.
True, an industrial agreement is to be construed in a manner that is consistent with a sensible industrial outcome. That much is beyond debate. The industrial context and purpose in which the instrument came into existence is also relevant as the survey of cases recorded above reveals, especially Amcor, Kucks and RMIT v NTEIU.
In this case no evidence was adduced about the industrial context of the relevant instruments. As a consequence I was unable to sensibly assess the correctness or otherwise of AV’s submission about the likelihood of Ms Degenhardt’s income being among the highest of AV’s employees. The submission seemed to me to be a throwaway line at best or at worst, to have been made in terroram. I was not assisted by it.
I accept that an employee being “on-call” and an employee actually performing duties of his or her employment are two different concepts. But as Mortimer J pointed out in Polan, Warramunda was specifically referenced to a very specific professional environment and, on the facts of that case, performance of an employee’s duties required a return to the workplace. In Polan the facts were different as indeed they are different in this case. As was held in Polan, the on-call allowance was payable in this case as reimbursement (or compensation or as the quid pro quo) for the fact or status of the employee being on-call when not engaged in the task of forming the employee’s duties. To my mind, there is no absurdity in such a construction, contrary to AV’s submission.
The point can be tested in the following manner. An employee may be “on-call” pursuant to some contractual agreement between the employer and the employee. While on-call the employee must be ready, willing and able to respond to being called upon so as to engage in the task of performing his or her duties. It may be that for the period when the employee is on-call, he or she is not in fact called upon to engage in the task of performing his or her duties. Classically, a medical practitioner may be “on-call” but no emergency arises requiring the doctor to perform medical services on a patient. It could not be sensibly suggested that while the relevant employee is on-call and waiting to be called upon he or she is not to be remunerated. Expressed in terms of the law of contract, while on-call the employee is forsaking other paid employment so as to answer the employer’s call to perform his or her duties, the consideration for which is the employer remunerating the employee while being on-call. That availability comes at a price. The price is the payment of the on-call rate.
I also disagree with the submission of counsel for AV that it would be absurd for Ms Degenhardt to be paid from being at home or asleep while she was on-call. Irrespective of whatever she may have been doing while being on-call, the fact remains that Ms Degenhardt, while on-call, bound herself to refuse other work. She was required while being on-call to instantly respond to AV’s requirements of dealing with media enquiries. If she was not in fact called upon while she was
“on-call”, that did not relieve AV of its obligation to provide the monetary consideration in return for her pledge to answer the call for her to perform the duties.
The on-call fee is payable.
Counsel for AV relied heavily on the observations of Finkelstein J in Warramunda to the effect that a personal care worker on a sleepover shift who was relevantly working could not be concurrently on-call. His Honour’s reasoning is unquestionably correct, if I may say so with respect. However, the facts of that case were very different to the facts of this case such that any parallel reasoning was inappropriate. In my view, little assistance in this case on that ground can be gained from the reasons of Finkelstein J.
Claim period
The parties agreed that the relevant period for the purposes of this litigation was six years prior to commencement of this proceeding,
that is to say, six years prior to 17 June 2015.
Casual loading
The parties agreed that Ms Degenhardt was entitled to payment as a casual employee under relevant industrial agreements. The question was whether any such payment included a loading or whether
Ms Degenhardt was entitled to be paid a loading in addition to her remuneration as a casual employee.
Clause 17 of the 2006 collective agreement addressed matters of casual payments. Clause 17.05 addressed loadings.
As has been addressed above, the stipulations in clause 17 prevailed over any contrary contractual stipulation in the 2006 agreement between RAV and Ms Degenhardt. The 2006 agreement was outside of the claim period.
Clause 21 of the 2010 enterprise agreement and the loading mentioned in clause 21.5 applied to Ms Degenhardt. In view of the concession in paragraph 17 of the statement of agreed facts, the whole of clause 21 applied.
Clause 17 of the 2014 enterprise agreement made detailed provision for casual employment and clause 17.3 addressed the subject of loadings.
Both applied to the employment of Ms Degenhardt by AV.
The parties have not requested me to pronounce upon the precise arithmetic that is to be applied in relation to casual loadings. I shall not embark upon an examination of the arithmetical calculations in this case. Those calculations can be undertaken by the parties.
To recap –
a)
the provisions of the 2014 enterprise agreement applied to
Ms Degenhardt’s employment with AV insofar as the 2013 employment contract was inconsistent with those provisions;
b)AV paid Ms Degenhardt on the basis that she worked four shifts, not two; and
c)
the 2013 employment contract required Ms Degenhardt to be
“on-call” meaning that she had to be able to respond to media enquiries when called upon to do so.
Penalty rates for casual employees
Ms Degenhardt contended that clause 17 of the relevant award, when given its plain English meaning, meant that a casual employee was to be paid a 25% leave loading in lieu of leave entitlements.
AV argued that a casual employee was to be paid at the hourly rate with a loading of 25% for all work performed on weekdays.
As with any agreement, the starting point is the wording of the agreement itself. To that I now turn.
For a significant period of time over a number of industrial agreements, the employees relevant to those industrial agreements have fallen into one of four categories, namely –
a)full-time employees;
b)part-time employees;
c)casual employees; and
d)fixed-term employees.
The definition of “casual employee” and the attributes of casual labour were recorded in various iterations of the relevant industrial agreement. It was in clause 17 in the 2006 award. In the 2010 award it was also clause 17 and in the 2014 award it was similarly in clause 17. The 25% loading was also in the 2006, 2010 and 2014 agreements. In the 2006 agreement, clause 17.5 provided that a casual employee was to be paid an amount equal to 1/38th of the weekly wage plus “a loading of 25% in lieu of any leave entitlements, for all work performed on week days”.[68] In the 2010 agreement, comparable provision appeared as clause 21.5. In the 2014 agreement a comparable provision appears in clause 17.3.
[68] Exhibit “GD10” to the affidavit of Gabrielle Degenhardt sworn 29 February 2016.
Pursuant to all of those clauses, the loading applied in lieu of any leave entitlements. It also applied for all work performed on weekdays. According to its ordinary grammatical construction, the loading was to be paid in lieu of, or as a substitute for, or instead of leave entitlements. It was to be paid for all work performed on weekdays.
The expression “in lieu of” has been interpreted judicially in a number of cases, some of which date back to the nineteenth century.
They include The Earl of Shaftsbury v The Duke of Marlborough,[69] Doe d. Murch v Marchant,[70] In re Boddington; Boddington v Boddington[71] and Stubbs v Director of Public Prosecutions.[72] All of those decisions held that “in lieu of” was, essentially, interchangeable with “instead of”.
[69] (1853) Ch 237.
[70] (1843) CCP 59.
[71] (1884) Ch 475.
[72] (1890) 24 QBD 577.
In this case, the clause speaks for itself. If a casual employee performed work on a weekday, the 25% loading applied in recognition of (or as compensation for) the fact that the employee did not receive leave entitlements. In other words, the 25% loading was payable instead of or as a substitution for leave entitlements.
The foregoing has answered the questions that have fallen for my determination. I direct the parties within 14 days to bring in minutes that more precisely give effect to these reasons.
I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 23 March 2017
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