Degenhardt v Ambulance Victoria

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FEDERAL COURT OF AUSTRALIA

Degenhardt v Ambulance Victoria [2019] FCA 1841

Appeal from: Degenhardt v Ambulance Victoria (No.3) [2018] FCCA 1113
File number: VID 671 of 2018
Judge: ANASTASSIOU J
Date of judgment: 11 November 2019
Catchwords:

INDUSTRIAL LAW – appeal from Federal Circuit Court – whether employee entitled to greater remuneration under enterprise agreement than contract – meaning of ‘on call’ – whether employee entitled to casual rate of pay for all hours rostered on call – whether estimation of hours worked by telephone records appropriate – no error in approach of primary judge

ADMINISTRATIVE LAW – whether primary judge denied appellant procedural fairness where trial split into liability, ‘scenarios’ and quantum – no denial of procedural fairness  
Cases cited:

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; 79 ALJR 703; 214 ALR 56; 138 IR 286

Degenhardt v Ambulance Victoria [2017] FCCA 543

Degenhardt & Ambulance Victoria (No.2) [2017] FCCA 2223

Degenhardt v Ambulance Victoria (No.3) [2018] FCCA 1113

Polan v Golburn Valley Health [2016] FCA 440

Warramunda Village Inc v Pryde (2002) 116 FCR 58; FCAFC 58
Dates of hearing: 5 and 14 March 2019
Date of last submissions: 14 March 2019
Registry: Victoria
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 67
Solicitor for the appellant:  Mr M. Addison
Counsel for the respondent:  Mr M. Rinaldi
Solicitor for the respondent:  DLA Piper

ORDERS

VID 671 of 2018
BETWEEN:

GABRIELLE DEGENHARDT

Appellant
AND:

AMBULANCE VICTORIA (ABN 50 373 327 705)

Respondent

JUDGE:

ANASTASSIOU J

DATE OF ORDER:

11 NOVEMBER 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs of and incidental to the appeal.

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


REASONS FOR JUDGMENT

ANASTASSIOU J:

  1. This is an appeal from the Federal Circuit Court. The appellant, Ms Degenhardt, claimed that her employer, the respondent Ambulance Victoria (previously Rural Ambulance Victoria) underpaid her employee entitlements.  The primary judge trifurcated the trial into three parts, being liability, ‘scenarios’ (an expression which will be explained below), and quantum, and handed down one set of reasons for each hearing.  The procedural history of this matter is explained below.

  2. For the reasons that follow the appeal is dismissed.  

    FACTUAL BACKGROUND

  3. The appellant was employed by the respondent pursuant to two successive written contracts, in the form of letters of offer.  The first letter of offer is dated 13 November 2006 (with Rural Ambulance Victoria, which merged with other entities to become the entity the respondent in these proceedings on 1 July 2008) (2006 Contract), and the second dated 10 October 2012, which was accepted in early 2013 (2013 Contract).  Her employment commenced on 4 December 2006.

  4. The appellant was engaged first under the title Casual Media Liaison, and later as…

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Details
Case
[2019] FCA 1841
Decision Date

CaseChat Overview and Summary

In the matter of Degenhardt v Ambulance Victoria, the appellant, an employee, appealed against the decision of the primary judge in the Federal Circuit Court concerning her claim for greater remuneration under the applicable enterprise agreements than that provided for in her contracts with the respondent, Ambulance Victoria. The dispute centred on the interpretation of the term "on call" and whether the appellant was entitled to a higher rate of pay for all hours she was rostered on call, as well as the appropriateness of estimating the hours worked using telephone records. The court was also required to consider whether the primary judge denied the appellant procedural fairness when the trial was split into liability, "scenarios", and quantum phases.

The court found that the primary judge had correctly interpreted the contracts and enterprise agreements, and that the appellant was entitled to a contractual flat rate for being "on call" and a casual rate for hours actually worked. The estimation of hours worked using telephone records was deemed appropriate. The court also rejected the appellant's contention that procedural fairness was denied when the primary judge allowed the respondent to present a new set of scenarios at the hearing. The court held that the ultimate scenario was handed up in open court and explained to the appellant at that time. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of and incidental to the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of and incidental to the appeal.

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

Background

Background to the litigation

For the reasons that follow the appeal is dismissed. FACTUAL BACKGROUND The appellant was employed by the respondent pursuant to two successive written contracts, in the form of letters of offer. The first letter of offer is dated 13 November 2006 (with Rural Ambulance Victoria, which merged with other entities to become the entity the respondent in these proceedings on 1 July 2008) (2006 Contract), and the second dated 10 October 2012, which was accepted in early 2013 (2013 Contract). Her employment commenced on 4 December 2006. The appellant was engaged first under the title Casual Media Liaison, and later as Media Officer, though nothing turns on this difference in nomenclature. The appellant’s duties were the subject of considerable evidence below. It appears that there were some changes to her duties over the period of her employment which was almost a decade. In summary, the appellant’s role was to respond to telephone calls from various media agencies concerning incidents in which the respondent became involved. The appellant answered enquiries from media organisations and liaised with relevant staff of the respondent to assist in responding to their enquiries. On 21 April 2015 the appellant’s employment was terminated for reasons not in issue in this appeal. On 7 June 2015 the appellant commenced the proceeding in the Circuit Court. The appellant claimed she had been under remunerated by the respondent. In substance, she claimed that she was entitled to more favourable conditions as to remuneration under applicable industrial instruments when compared with either of the 2006 and 2013 Contracts. JUDGMENT BELOW The primary judge first restated the agreed statement of facts jointly submitted by the parties. His Honour construed the interaction of the contracts and industrial instruments applicable to the appellant. In Degenhardt v Ambulance Victoria [2017] FCCA 543 (Liability Decision), his Honour found that the 2006 and 2013 Contracts were contractually binding on the parties (Liability Decision at [18] and [29]). He found that the 2006 Contract provided for the appellant to be employed as a casual employee on an “as required basis” (Liability Decision at [11]). The appellant was rostered for duty for 12 hour shifts, to be “on call”. The appellant was to be paid $80.00 per shift for “the on call component and up to 1.5 hours of actual work” (Liability Decision at [11]). It appears the per shift flat rate was gradually increased over the period of the appellant’s employment to $90.04 (Liability Decision at [62]). For the additional hours of actual work beyond the first one and a half hours per shift, the appellant was to be paid $30.00 per hour pro rata for the time worked “if required” (Liability Decision at [11]). The appellant was required to submit fortnightly timesheets, which she did (Liability Decision at [13]). However, she recorded only the period she was rostered on, not the time spent actually working during those periods. The above terms for remuneration were inclusive of sick leave and annual leave. There was some dispute as to the number of shifts the appellant was to be rostered on to work. It suffices to note that the primary judge found that the appellant was rostered for four, back-to-back shifts per week (Liability Decision at [5](b)). The parties on appeal drew no distinction between the 2006 and 2013 Contracts.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The primary judge first restated the agreed statement of facts jointly submitted by the parties. His Honour construed the interaction of the contracts and industrial instruments applicable to the appellant. In Degenhardt v Ambulance Victoria [2017] FCCA 543 (Liability Decision), his Honour found that the 2006 and 2013 Contracts were contractually binding on the parties (Liability Decision at [18] and [29]). He found that the 2006 Contract provided for the appellant to be employed as a casual employee on an “as required basis” (Liability Decision at [11]). The appellant was rostered for duty for 12 hour shifts, to be “on call”. The appellant was to be paid $80.00 per shift for “the on call component and up to 1.5 hours of actual work” (Liability Decision at [11]). It appears the per shift flat rate was gradually increased over the period of the appellant’s employment to $90.04 (Liability Decision at [62]). For the additional hours of actual work beyond the first one and a half hours per shift, the appellant was to be paid $30.00 per hour pro rata for the time worked “if required” (Liability Decision at [11]). The appellant was required to submit fortnightly timesheets, which she did (Liability Decision at [13]). However, she recorded only the period she was rostered on, not the time spent actually working during those periods. The above terms for remuneration were inclusive of sick leave and annual leave. There was some dispute as to the number of shifts the appellant was to be rostered on to work. It suffices to note that the primary judge found that the appellant was rostered for four, back-to-back shifts per week (Liability Decision at [5](b)). The parties on appeal drew no distinction between the 2006 and 2013 Contracts. The primary judge summarised his conclusions concerning the contractual relationship as follows (Liability Decision at [111]):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. The primary judge considered whether any, and if so which, enterprise agreements to which the respondent was a party at relevant times applied to the appellant’s employment. Five enterprise agreements were said to potentially apply to the appellant. His Honour said at [97]: The parties alleged that the totality of the sources of the provisions about Ms Degenhardt’s remuneration and entitlements were set out in – [the 2006 and 2013 Contracts] …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; andg)the Ambulance Victoria (Management and Administrative Staff) Enterprise Agreement 2014.(the Enterprise Agreements)

Ratio Decidendi

Legal Principle Established

In coming to his Honour’s conclusion in the Quantum Judgment, his Honour stated as follows: 35.In debate with Mr Addison [solicitor-advocate for the appellant], I raised with him the possibility that I may not accept Mr Rosner’s arithmetic or even the logic of his calculations with the consequence that he did not persuade me that Ms Degenhardt was entitled to the sum claimed. I asked Mr Addison what happened in that eventuality. Mr Addison referred to the manifest injustice of that conclusion. He initially agreed that in that situation Ms Degenhardt would fail in this case then he later submitted that I was empowered to choose a different one of the nine scenarios that were the subject of my consideration in the second judgment in this case.(emphasis added) It appears from the foregoing that the solicitor-advocate for the appellant acknowledged that his Honour could conclude on an alternate basis to scenario seven. Even if the primary judge had formed a concluded view that scenario seven expressed the findings made at the liability stage, he was not precluded from changing his mind. He made only procedural orders at the conclusion of the scenarios stage and accordingly he had not finally disposed of the matter before him. Accordingly, his Honour was not functus officio and was therefore entitled to consider, as he did, the further scenario put forward by the respondent at the quantum stage. If I am wrong in this conclusion, in any event I am not bound by any conclusion reached by his Honour. This is an appeal in the nature of a rehearing. The respondent contends in its Notice of Contention that the quantification of the appellant’s claim was correctly assessed on the basis that she was entitled to a contractual flat rate being ‘on call’ and a casual rate for hours actually worked pursuant to the Enterprise Agreement. I agree with this construction of the appellant’s entitlements and with the application of a 300% uplift consistent with the approach taken in Polan to allow for deficiencies in record keeping. For these reasons grounds one and three must fail. Procedural Fairness By ground eight the appellant contends that in allowing the respondent to hand up a new set of scenarios at the hearing culminating in the Quantum Judgment, “without affording the appellant an opportunity to inspect the document or to make submissions on the document” the primary Judge denied procedural fairness to the appellants. The ultimate scenario was handed up in open court and explained to the appellant at that time. As discussed above, it adopted effectively the same approach as taken in scenarios four and five, though did so with a greater uplift, and with the addition of an allowance for the underpayment of the ‘on call’ flat rate under the 2006 and 2013 Contracts. On appeal, and below, the appellant did not dispute the quantification of the amounts payable under this scenario, but rather the legal correctness of an approach similar to that taken in Polan and Warramunda as discussed above.